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C11517— i HANDBOOK OF THE LAW OF MUNICIPAL CORPORATIONS By ROGER W. COOLEY, LL. M. PROFESSOR OF LAW, UNIVERSITY OF NORTH DAKOTA AUTHOR OF "briefs ON THE LAW OP INSURANCE,'' " ILLUSTRATIVB CASES ON PERSONS AND DOMESTIC RELATIONS," "ILLUS- TRATIVE CASES ON INSURANCE," "ILLUSTRATIVE CASES ON DAMAGES," AND "ILLUSTRA- TIVE CASES ' ON SALES ' ' ST. PAUL, MINN. WEST PUBLISHING CO. 1914 'B/^^^.r C-*. J^ — , COPTRIGHT, 1914 BY WEST PUBLISHING COMPANY (COOL.MUN.COHP.) PREFACE J In 1904 the Hornbook on Public Corporations by Judge Henry H. Ingersoll was published. After the lapse of nearly ten years it was deemed advisable to bring out a new edition and the work of preparing it was intrusted to the present writer. As the work of revision progressed, however, it was thought desirable, in order to make the new book conform to suggestions offered by legal educators, to alter the original scope and plan of the book, and treat only the subject of Municipal Corporations. iwWith that purpose in view five chapters of the original book, treating of quasi public cor- porations, were omitted,* and the remaining portions of the book rearranged and in some portions expanded, to the end that a more logical and adequate treatment of the narrower subject might be attained. In the preparation of present text free use has been made of the material contained in Judge Ingersoll's excellent work, a few chapters of which have been retained in substantially their original form. The object of this handbook is to present in concise form the general principles of the law of Municipal Corporations. "As a very large proportion of this branch of the law is statu- tory, it is impossible, within the limits of a single volume, to treat the subject exhaustively or with even an approach to completeness. The aim has been rather to .set forth clearly and concisely those fundamental principles which must be 'and are applied in any attempt to formulate and construe the law of municipal corporations as found in the various stat- law of municipal corporations as found in the various statutes.! Though designed especially for .the use of students — the arrangement and mode of treatment being dictated more or less by the writer's experience in teaching the subject — it is believed that the handbook will commend itself to the prac- titioner because of its concise statement of fundamental prin- ciples and full citation of leading authorities and illustrative ^ages_ Roger W. CootEY. University of North Dakota School of Law, December, 1913. (v)» TABLE OF CONTENTS CHAPTER I CORPORATIONS— PUBLIC AND PRIVATE Section Page 1. Corporations in General 1-4 2. Kinds of Corporations 4-6 3. Nature of Corporations 7-10 4. Public Corporations — Definition 10-12 5. Same — Classification 12-14 6-7. Municipal Corporations — Distinguishing Elements 14-28 CHAPTER II CREATION OF MUNICIPAL CORPORATIONS 8. Power to Create Municipal Corporations 29-30 9. Same — Delegation of Power 30-32 10. Same— What Bodies may Grant Charters 32-35 11. Legislative Discretion 35-38 12. Legislative Power — How Exercised 38-45 13. Territory and Population 45-48 14. Assent to Incorporation 48-52 15. Corporations by Implication or by Prescription . . . 52-56 16. Validity of Incorporation— Compliance with Con- , ditions 56-57 17. Same — De Facto Corporations 57-60 18. Same— How Tested 60-62 19. What Constitutes Municipal Membership 62-63 20. Classification of Municipalities 63-64 21. Operation and Effect of Incorporation 65-66 CHAPTER III LEGISLATIVE CONTROL 22. Legislative Control in General 67-70 23. Limitations on Legislative Control 71-73 24. OfBees and OflBcers 73-75 25. Public Funds and Revenues 75-83' 26. Contracts and Obligations 83-85 27. Obligations Imposed by Legislature 85-88 CooL.MuN.CoEP. (vii) VUl TABLE OF CONTENTS Section Page 28. Property 88-92 29. Franchises 93-94 30. Public Thoroughfares 94-97 CHAPTER IV ALTERATION AND DISSOLUTION 31. In General 98-99 32. Territorial Increase or Decrease 99-106 33. Division of Municipal Territory 106 34. Consolidation 106-108 35. Operation and Effect of Annexation, Division, or Consolidation , 108-111 36. Repeal of Charter and Dissolution 112-116 37. Reincorporation 116-118 CHAPTER V THE CHARTER 38. Municipal Charters 119-121 39. Form and Contents of Charter 121-124 40. Municipal Powers : Inherent — Express — Implied 124-132 41. Exercise of Powers 132-136 42. Charter Powers Classified 136-139 43. Territorial Limit of Municipal Authority 139-141 44. Amendment and Repeal of Charter 141-148 CHAPTER VI PROCEEDINGS AND ORDINANCES 45. The Governing Body 149-153 46. Mode of Action 153-155 47. Meetings , 156-160 48. Corporate Records 161-163 49. Ordinances 164-165 50. Same — Mode of Enactment 165-170 51. Essentials of Valid Ordinance 170-187 52. Fines and Penalties 187-189 53. Procedure ISg-igs CHAPTER VII OFFICERS, AGENTS, AND EMPLOYlSS 54. In General 194-198 55. Officers, Governmental and Municipal 198-202 TABLE OF CONTENTS ix Section Page 56. Eligibility 203-205 57. Appointment and Election 205-209 58. Term of Office 209-210 59. Officers De Facto 210-212 60. Title to Office 212-213 61. Salary 213-216 62. Resiguatibn 217-219 63. Removal 220-221 64. Judicial Control 222-223 65. Personal Liability— Contracts 224-225 66. Same — Torts 225-228 67. Same — Reimbursement of Municipality for Loss 228-229. 68. Agents 229-231 69. Employes 231-232 CHAPTER VIII ' CONTRACTS 70. In General 233-234 71. Subject-Matter 234-235 72. Contracting Agencies 236-238 73. Mode of Contracting 238-240 74. Letting of Contracts 240-244 75. Validity in General 245-246 76. Term and Duration of Contract — Power to Bind Successors 246-248 77. Ultra Vires Contracts 248-253 78. Same — Ratification and Estoppel 253-257 79. Same — Contracts Partially Ultra Vires : 257-258 80. Implied Promise 259-261 81. Illegal Contracts 262-265 82. Annulling Contracts 265-266 83. Impairing Obligations 267-268 84. Money Contracts 268-270 CHAPTER IX IMPROVEMENTS 85. Municipal Improvements in General 271-272 86. General and Local Improvements Distinguished. . 272-274 87. Power to Make or Aid 275-279- 88. Preliminary Proceedings 280-286 89. Contracts 286-290 > TABLE OF CONTENTS Section Page 90. Damages 290-295 91. Special Assessments 295-304 92. Enforcing Collection 304-307 CHAPTER X POLICE POWERS AND REGULATIONS 93. Essential to a Municipality 308-310 94. Delegation 310-311 95. Extent and Limitation of Power 312-315 96. Exercise of Power 316-317 97. Double Police Power 318 98. Peace and Order 319-320 99. Sanitation 320-324 100. Safety 824^330 101. Comfort 330-332 102. Occupations and Amusements 333-337 103. Markets 338-339 104. Violation and Enforcement 339-341 CHAPTER XI STREETS, SEWERS, PARKS, AND PUBLIC BUILDINGS 105. Streets 342-343 106-107. Legislative Control 343-347 108. Dedication and Acceptance 347-351 109. Use of Streets 351-358 110. Abutting Owners 358-363 111. Sewers 363-366 112. Parks 366-370 113. Public Buildings 370-373 CHAPTER XII TORTS 114. Civil Liability 374^75 115-117. Governmental and Municipal Duties Distinguished 376-387 118. Care of Streets ' 387-393 119. Obstructions 394r-397 120. Sidewalks .397-400 121. Bridges and Viaducts 401^402 122. Drains and Sewers 403-406 123. Respondeat Superior 406-408 124. Ultra Vires. 409^12 TABLE OF CONTENTS JQ CHAPTER XIII DEBTS, FUNDS, EXPENSES, AND ADMINISTRATION Section Page 125. Indebtedness 413-414 126. Limitation of Indebtedness 414-417 127. Borrowing Money 418-420 128-129. Municipal Bonds — Power to Issue 420-422 130. Municipal Warrants 422-423 131. Funds 424^25 132. Rights of Creditors 425-420 133. Expenses 427 134. Budget 428^29 135. Claims 429^30 136. Appropriation 431-432 CHAPTER XIV TAXATION 137. Source of Power 433-435 138. Legislative Control 435-436 139-141. Public Purpose Only 437-442 142. Apportionment of Taxes 443-445 143. Subjects of Taxation 445-451 144. State May Impose 451^53 145. Limitation of Express Power ■ 453-454 146. Implied Power 454-456 147. License Tax 456-457 148. Exercise of Power 457-458 149. Assessment and Collection 459-461 150. Taxation for Creditors 462-463 CHAPTER XV ACTIONS 151. A Municipality may Sue and be Sued 464-465 152. Plaintiff in Actions Ex Contractu 463-466 153. Defendant in Actions Ex Contractu 466-469 154. Plaintiff in Actions Ex Delicto 469 155. Defendant in Actions Ex Delicto 470^72 156. Mandamus 472-477 157. Quo Warranto 478-480 158. Certiorari 480-482 159. Complainant in Chancery 482-484 160. Defendant in Chancery 484^87 161. Injunctions 488-490 162. Criminal Prosecution 490-492 Xll TABLE OF CONTENTS CHAPTER XVI „ , QUASI CORPORATIONS— COUNTIES Section Page 163. Quasi Corporations 493-49G 164. Immunities 497-500 165. Distinguishing Elements , . . 501-505 166. Counties 505-508 167. Creation of Counties— Legislative Power 508-510 168-169. Property— Public Use — Sovereign Power 511-512 170. Government and Officers 512-513 171-172. Powers of County Government 514r-321 173. Torts 522 174. Power of Eminent Domain 523-524 175. Police Power 524r-527 CHAPTER XVII QUASI CORPORATIONS— COUNTIES (Continued) 176. County Liabilities 528-531 177. Contracts— Subject-Matter ; 532-538 178. Forms of Contracts 538-540 179. Borrowing Money 541-544 180. County Bonds 544^553 181. Fiscal Management 553-560 182. Taxation 560-565 183. Same— Legislative Control 566-568 CHAPTER XVIII QUASI CORPORATIONS OTHER THAN COUNTIES 184. In General , 569-570 185. New England Towns 571-574 186. Townships 574-576 187. School Districts 576-581 188. Other Local Quasi Corporations 582-583 189. Boards — Commissioners — Companies 583-585 TABLE OF CASES CITED (Page 587) INDEX (Page 681) fi^- HANDBOOK OF THE LAW OF MUNICIPAL CORPORATIONS CHAPTER I • CORPORATIONS— PUBLIC AND PRIVATE 1. Corporations in General. 2. Kinds of Corporations. 3. Nature of Corporations. 4. Public Corporations — Definition. 5. Same — Classification. 6-7. Municipal Corporations — Distinguishing Elements. CORPORATIONS IN GENERAL 1. The nature of a corporation is set forth in the following standard defiiiitions from acknowledged authori- ties : , (a) *"A corporation is an artificial being, invisible, intang- ible, and existing only in contemplation of law." ^ 2 (b) "It is a legal institution devised to confer upon the individuals of which it is composed powers, priv- ileges, and immunities which they would not other- wise possess, the most important of which are con- 1 Chief Justice Marshall in the celehrated Dartmouth College Case, 4 Wheat (U. S.) 518-675, 4 L. Ed. 629, wherein the nature of corpo- rations was elaborately considered, and it was established that the charter of a private corporation was an inviolable contract, under the Constitution of the United States, art. 1, § 10. COOL.MUN.COHP. — 1 2 COKPOKATIONS ^l^UBLIC 'AND PRIVATE (Ch. 1 tinuous legal identity or unity, and perpetual or indefinite succession under the corporate name, not- withstanding successive changes, by death or oth- erwise, in the corporators or members." ^ (c) y'lt is a collection of many individuals united into one body under a specicd denomination, having perpet- ual succession under an artificial form, and in- vested by the policy o£ the law with the capacity of acting in several respects as an individual — par- ticularly of taking and granting property, of con- tracting obligations, and of suing and being sued, of enjoying privileges and immunities in common, and of exercising a variety of political rights, more or less extensive, according to the design ot its in- stitution, or of the powers conrerred upon it ei- ther at the time of its creation, or at any subse- quent period of its existence." * X The three foregoing statements of the nature and qualities of a corporation are the ones most familiar to the modern stu- dent. The first is by the great Chief Justice, and gives terse expression to the fundamental ideas of a corporation. It is not a natural, but an artificial, being or person; it cannot be seen, nor touched, nor recognized by any other human sense ; it is a creature of the law, existing only by its authority,* and recognized and respected by it alone. The second definition is by the recognized master of the law of municipal corporations in America." It is fuller, more 2 Judge Dillon, in volume 1, § 30, Commentaries on Law of Munici- pal Corporations (5th Ed.) — the standard textbook on that subject 3 1 Kyd, Corp. 13 — a work which has held high repute for a cen- tury in both England and America. * Agreement of members cannot alone make a corporation ; the ex- press consent of the state is necessary. Clark, Priv. Corp. §§ 4, 12- 18 ; 1 Thomp. Priv. Corp. § 85 ; Hoadley v. Essex County Com'rs, 105 Mass. 526 ; Stowe v. Flagg, 72 111. 397 ; Franklin Bridge Co. v. Wood, 14 Ga. SO. = Judge Dillon's Commentaries on the law of Municipal Corpora- § 1) COKPOBATIONS IN GENERAL 3 comprehensive, and more satisfactory to the, lawyer. It calls attention not only to the characteristics emphasized by Chief Justice Marshall in his vivid and sententious definition, but also to other characteristics, viz.: It is composed of individ- uals ; " it has pov^rers, privileges, and immunities not common to natural persons ; ^ the members may die, but the corpora- tion continues as a perpetual unity unaffected by their death." Still fuller and yet more satisfactory than either of the American definitions is that of the great English author, Kyd, the earliest writer in our language upon this topic. Judges, professors, and practitioners have generally united in com- mending this as a most accurate, practical, and complete def- inition, and remarkable as found in the first treatise on the subject. In addition to the ideas of this artificial person found in the other definitions, Mr. Kyd has herein specified the chief powers of a corporation, ° such as the taking and holding and transferring of property, the contracting of obligations and tions, published originally in 1872 — tHe. first American work on this subject — came instantly into professional and. judicial favor, and is justly entitled to be called "authority." The references to this work, unless otherwise indicate4, are to the fourth edition. 8 1 Thdmp. Priv. Corp. § 7 ; Clark, Priv. Corp. § 1, Append, p. 644 ; 1 Coke, Inst 202, 250; 2 Kent, Comm. 267, 268; People v. Assessors of Village of Watertown, 1 Hill (N. Y.) teO ; Hightower v. Thorn- ton, 8 Ga. 492, 52 Am. Dec. 412. The corporation sole, a favorite of English courts for the protection of the crown and of ecclesiastics, has been recognized in several of the United States. Day v. Stetson, 8 Me. 365 ; Governor v. Allen, 8 Humph. (Tenn.) 176 ; Inhabitants of First Parish in Brunswick v. Dunning, 7 Mass. 447 ; Koman Catholic Archbishop of San Francisco v. Shipman, 79 Cal. 288, 21 Pac. 830 ; Jansen v. Ostrander, 1 Cow. (N. Y.) 670; McCloskey v. Doherty, 97 Ky. 300, 30 S. W. 649. But corporations sole are rare in America, and not increasing in number or favor. ^ Lord Coke, reporting the opinion of Manwood, C. B., says: "They are invisible, immortal, having no conscience or soul." And in our day the responsible members are not liable personally. 8 1 Thomp. Priv. Corp. § 10 ; Clark, Priv. Corp. § 15 ; State v. Stor- mont, 24 Kan. 686 ; Fuller v. Trustees of Plainfleld Academic School, 6 Conn. 543 ; Fairchild v. Masonic Hall Ass'n, 71 Mo. 526. 9 These are sometimes distinguished as essential attributes and nonessential incidents. Clark, Priv. Corp. §§ 6, 7. 4 CORPORATIONS PUBLIC AND PRIVATE (Ch. 1 transaction of business, the suing and being sued like a natural person ; the idea of certain powers, privileges, and immunities adapted to its object; and the specific purpose of its creation. Blackstone divided corporations ^" into aggregate and sole, according to the number composing the body; into ecclesi- astical and lay, according to the character of the persons com- posing them; and into civil and eleemosynary, according to the uses they were intended to subserve; and this classifica- tion is still generally recognized and utilized in England. But it is not profitable for us to discuss whether the division is now exactly correct in theory, for certainly it is of little pres- ent practical use in America. KINDS OF CORPORATIONS 2. Primarily all corporations are divided into two great classes, public and private ; public being those cre- ated for the public use, and private being created for private objects. Another class, known "as quasi public corporations, com- bines the elements of both public and private. Though organized for private profit, they are com- pelled by law or contract to render public service. The distinction between public and private corporations is not only of theoretical interest, but of great practical import- ance. Upon this pivot is often made to turn the liability of the corporation for the torts and contracts of its agents, and the powers and privileges of the body. Nor is the subject free from difficulty, either upon reason or authority. It is easy to understand that counties, cities, and towns, and other public bodies upon which the legislature has conferred definite powers, to be exercised for public purposes only, are public corporations; but whether banks, colleges, schools, and hos- pitals, designed and operated for the public welfare, are pub- 10 1 Bl. Comm. 469-471. § 2) KINDS OF COEPORATIONS 8 lie or private, is matter of disagreement in our American courts ; and there are decisions which declare . a municipal corporation to have a private char^cter,^^ and others holding railway companies and grain elevators to be public corpora- tions quoad hoc.^'' It is declared by the Supreme Court of Georgia' that "a bank organized by the government for public purposes is a public corporation if the whole of the stock and all interest in it re- side in the government." ^* But the three neighboring states of North Carolina, South Carolina, and Alabama, by their Supreme Courts, declared the contrary doctrine ; ^^ and to this view the United States Supreme Court inclines in at least two cases. ^^ In the matter of schools and colleges the law was declared by that tribunal in the celebrated Dartmouth College Case, in 1819, to be that a corporation is not necessarily pub- lic because it has been established for the purpose of general education or charity. If the foundation be private, though under government charter, the corporation is private, however extensive the uses may be to which it is devoted, either by the 11 Bailey v. Mayor, etc., of City of New York, 3 Hill (N. X.) 531, 38 Am. Dec. 669 ; Macauley v. Mayor, etc., of City of New York, 67 N. Y. 602 ; City of Memphis v. Klmbrough, 12 Heisk. (Tenn.) 133 ; Oliver v. City of Worcester, 102 Mass. 489, 3 Am. Rep. 485 ; Lloyd v. Mayor, etc., of City of New York, 5 N. Y. 369, 55 Am. Dec. 347 ; People ex rel. Board of Park Com'rs v. Common Council of Detroit, 28 Mich. 228, 15 Am. Kep. 202. 12 Munn V. Illinois, 94 U. S. 113-126, 24 L. Ed. 77; Chicago, B. & Q. R. Co. V. Iowa, 94 U. S. 155, 24 L. Ed. 94 ; Peik v. Chicago & N. W. R. Co., 94 U. S. 164, 24 L. Ed. 97. These are commonly known as the "Granger Casej," in which was maintained and enlarged the old legal doctrine enunciated by Lord Hale, that, "when private proper- ty is affected with a public interest, it ceases to be juris privati only." 1 Harg. Law Tracts, 78. It has also been applied to water companies, Spring Valley Waterworks v. Schottler, 110 U. S. 347, 4 Sup. Ct. 48, 28 L. Ed. 173; and to gas companies. State ex rel. At- torney General v. Ironton Gas Co., 37 Ohio St. 45. 13 Cleaveland v. Stewart, 3 Ga. 283. 1* State Bank v. Clark, 8 N. C. 36 ; Bank of State v. Gibbs, 3 Me- Cord (S. C.) 377; Bank of State v. Gibson's Adm'rs, 6 Ala. 814, 816. 15 Bank of U. S. v. Planters' Bank, 9 Wheat. (U. S.) 907, 6 L. Ed. 244; Bank of Kentucky v. Wister, 2 Pet. (U. S.) 318, 7 L. Ed. 437. 6 CORPORATIONS PUBLIC AND PRIVATE (Ch. 1 bounty of the founder, or the nature and objects of the institu- tion ; and so, if the making of profit is the purpose of a cor- poration, it is a private (Sorporation, though it may be en- gaged in the service of the pubHc.^° In the Planters' Bank Case, above cited, the state of Georgia was both the proprietor and a corporator of the bank, but not the exclusive owner. In the Kentucky Bank Case, the state was not a corporator, but was the exclusive owner of the stock of the bank. In both cases the bank was held by the Supreme Court of the United States to be a private corporation. The conflict in these decisions on the subject of banks doubtless results from" the application to stock corporations, of the remarks of the Justices of the Supreme Court of the United States, in the Dartmouth College Case, upon the qualities and attributes of public and private corporations, which were intended to be applied only to nonstock corporations, such as was Dartmouth College, where private profit was not the object of the cor- poration. The decided preponderance of authority is that, where prof- it-making is the object of the corporation, it is private; ^^ iL it perform public functions, engage in public service, or ex- ercise any sovereign power, it becomes a quasi public corpo- ration.^* 16 Ten Eyck v. Delaware & R. Canal Co., 18 N. J. Law, 200, 37 Am. Dec. 233 ; Miners' Ditch Co. v. Zellerbacli, 37 Cal. 543, 99 Am. Dec. 300 ; People V. Forrest, 97 N. Y. 97; Commonwealth v. Lowell Gaslight Co., 12 Allen (Mass.) 75. 17 Clark, Prlv. Corp. 29; 1 Thomp. Priv. Corp. §§ 24, 27. Corpo- rations are private if created for private gain, even though sup- posed by the Legislature to promote the public interest. 1 Dill. Mun. Corp. § 53. As to the various kinds of private corporations, see Clark on Corporations, §§ 10, 11. 18 Tinsman v. Belvjdere Delaware R. Co., 26 N. J. Law, 148, 69 Am. Dec. 565 ; Board of Directors for Leveeing Wabash River v. Hous- ton, 71 111. 318 ; Ten Eyck v. Delaware & R. Canal Co., 18 N. J. Law, 200, 37 Am. Dec. 233; Whiting v. Sheboygan & F. du L. R. Co., 25 Wis. 167, 3 Am. Rep. 30 ; Logwood v. President, etc., of Planters' & Merchants' Bank of Huntsville, Minor (Ala.) 23. Every stock cor- poration is a private corporation, though it be quafei public because of its functions, as a railroad or a canal company. So, also, are § 3) NATURE OF COEPOKATIONS NATURE OF CORPORATIONS 3. A corporation aggregate, whether public or private, con- sists of (a) A collection of naturad persons. (b) A legal body including those persons, and yet sepa- rate and distinct from them, endowed by law with certain rights, powers, and franchises. P To avoid the confusion often arising in the minds of per- sons inexperienced in the practical operation of a corporation it is of first importance that the legal body, existing only. in contemplation of law, shall be kept separate and distinct from the persons of the members composing it.^°J The corporation cannot exist without members. Human beings, with minds and souls, to organize, establish, control, direct, and use the powers which- the state confers upon the corporate body, are essential to its existence. Until the persons authorized have breathed the breath of life into the body of the charter, there is no corporation.^" If the members all die or remove from the territory, leaving no successors to exercise these powers or maintain these rights, the corporation is at an end.^^ I The charter is a separate, distinct, and necessary part of the or- noBstock corporations erected upon a private foundation, though their functions are public. Dartmouth College v. Woodward, 4 Wheat. (U. S.) 518, 4 L. Ed. 629. 19 Clark, Priv. Corp. §§ 5-9. 20 state ex rel. Weir v. Dawson, 16 Ind. 40; Willis v. Chapman, 68 Vt 459, 35 Atl. 459 ; Yeaton v. Bank of Old Dominion, 21 Grat. (62 Va.) 593 ; Ellis v. Marshall, 2 Mass. 269, 3 Am. Dec. 49. There must be an acceptance of the charter before corporate life can be- gin. Smith V. Silver Valley Min. Co., 64 Md. 85, 20 Atl. 1032, 54 Am. Eep. 760. 211 Bl. Comm. 485; Chesapeake & O. Canal Co. v. Baltimore & O. E. Co., 4 Gill & J. (Md.) 1 ; Arthur v. President, etc., of Commer- cial & R. Bank of Vicksburg, 9 Smedes & M. (Miss.) 394, 48 Am. Dec. 719 ; 2 Kent, Comm. 308, 309 ; President, etc., of Bridge over Eiver Lehigh v. Lehigh Coal & Nav. Co., 4 Rawle (Pa.) 9, 26 Am. Dec. Ill ; Philips V. Wickham, 1 Paige (N. Y.) 590. 8 COEPOEATIONS PUBLIC AND PRIVATH (Ch. 1 ganism, but it is not the corporation. The persons authorized by law to assume its rights, powers, and franchises are equally- essential to its existence.! But until the two have been united by the action of the persons under and within the powers of the charter, the corporation is only a potentiality. After the union of the two, and as long as the charter and members both live, the corporation exists."^ The members exercise the corporate powers and hold the corporate property and per- form the corporate functions in the corporate name, and the corporation is said to be a "going concern." But with either the death of all the members or the loss of the charter the essential union of members and body is dissolved, and the le- gal fiction is at an end; the corporation no longer exists.^ ^ Termination — Members The charter may expire of its own limitation, or it may be terminated by an act of the law, legislative or judicial; "* the individuals composing the corporation may terminate their re- lation to it by death, surrender, or severance of membership, and, the life being out of the legal body, nothing but the dry shell remains." ° And yet, essential as these two parts are to the corporate existence, the body and its members have also, in the view of the law, a separate and distinct existence. In its relations with other persons and with the state, in the ex- ercise of its powers and control of its property it is only the corporation that -acts; everything is done in the corporate name; the obligations contracted, the liabilities incurred, the conveyances made, the functions exercised, are all in the name 22 Smith v. Silver Valley Mining Co., 64 Md. 85, 20 Atl. 1032, 54 Am. Kep. 760; People v. Assessors of Village of Watertown, 1 Hill (N. Y.) 620 ; Parker v. Bethel Hotel Co., 96 Tenn. 252, 34 S. W. 209, 31 L. R. A. 706; Clark Priv. Corp. §§5, 6; Humphreys v. McKis- sock, 140 U. S. 304, 11 Sup. Ot. 779, 35 L. Ed. 473. 2 3 Bacon v. Robertson, 18 How. (U. S.) 480, 15 L. Ed. 499; Mason V. Pewahic Mining Co., 66 Fed. 396, 13 C. C. A. 532. 24 1 Dill. Mun. Corp. (5th Ed.) §§ 330, 334. 2 5 People ex rel. Redman v. Wren, 4 Scam. (111.) 275; Smith v. Smith, 3 Desaus. (S. C.) 557. § 3) NATUEE OF CORPORATIONS 9 of the corporation ; and thus it is an artificial person."" But the individual memberb, though essential to the corporate ex- istence do not own the property, do not make the contracts, do not commit torts, nor incur the liability of the corpora- tion.^' They retain their own separate personality ; each one is a separate and distinct person, with no corporate power, franchise, or property vested in him. It is the collective body of corporators having the right to these powers and fran- chises and this property of the corporation, that control, gov- ern, and direct its operation.^' However powerful in thought, will, or money any one member may be — however dominant his influence and habit — he is not the corporation; and, even though it should happen that he own every share of stock or every acre of land in it, he could not in his own name convey any portion of the corporate property; and the corporation may sue one of its own members, and the member may sue the corporation, on either contracts or torts, even though they afifect or concern the affairs of the corporation.^* Corporate Unity And yet, separate and distinct as the members and the body are, the members are one ; and that one is the corporation. 2 8 Parker v. Bethel Hotel Co., 96 Tenn. 252, 34 S. W. 209, 31 L. R. A. 706 ; Baldwin v. Canfleld, 26 Minn. 43, 1 N. W. 261 ; William- son's Syndics v. Smoot, 7 Mart. O. S. (La.) 34, 12 Am. Dec. 494; Dartmouth College v. Woodward, 4 Wheat. (U. S.) 518, 4 L. Ed. 629. 2 7 Clark, Priv. Corp. §§ 558, 559, 564, 565. But in two notable cas- es involving the "corporation trust questions" the courts of New York and Ohio have pronounced judgment against corporations for wrongs done by the members. People v. North Eiver Sugar Eefln- ing Co., 121 N. Y. 582, 74 N. E. 834, 9 L. E. A. 33, 18 Am. St. Eep. 843 ; State v. Standard Oil Co., 49 Ohio St. 137, 30 N. E. 279, 15 L. E. A. 145, 34 Am. St. Eep. 541. 28 Smith V. Hurd, 12 Mete. (Mass.) 371, 46 Am. Dec. 690; Durfee v. Old Colony & F. E. E. Co., 5 Allen (Mass.) 230, 242 ; Dudley v. Ken- tucky High-school, 9 Bush (Ky.) 578. 29 Pope V. Brandon, 2 Stew. (Ala.) 401, 20 Am. Dec. 49; Gordon v. Preston, 1 Watts (Pa.) 385, 26 Am. Dec. 75 ; Waring v. Catawba Co., 2 Bay (S. C.) 109; Eogers v. Danby UniversaUst Soc, 19 Vt 187; Lexington Life, Fire & Marine Ins. Co. v. Page, 17 B. Mon. (Ky.) 412, 66 Am. Dec. 165. 10 CORPORATIONS PUBLIC AND PRIVATE (Ch. 1 "The most peculiar and strictly essential characteristic of a corporate body, which makes it to be such, and not some other thing, in legal contemplation, is the merging of the individuals composing the aggregate body into one distinct, artificial, in- dividual existence." ^° This quality is aptly expressed by Blackstone in the following simile: "All the individual mem- bers that have existed from the foundation to the present time, or that shall ever hereafter exist, are but one person in law — a person that never dies ; in like manner as the river Thames is still the same river, but the parts which compose it are changing every instant." '^ In a leading New York case it was declared by Chief Justice Nelson "that the essences of a corporation consist in a capacity to have perpetual succession, and a special name and an artificial form, to take and grant property, contract obligations, sue and be sued by its corporate name as an individual, and to receive and enjoy in common, grants, privileges, and immunities." ^^ These expressions used generically in regard to corporations are especially ap- plicable to private corporations.; and yet, as we shall see here- after, the same general principles and rules may apply to both classes. PUBLIC CORPORATIONS— DEFINITION 4. A public corporation is a corporation created by the state for public purposes only, as an instrumentality to increase the efficiency of government, supply the- public wants, and promote the public welfare. This class of corporations includes not only the municipal corporation, but also agencies of government, called "quasi corporations," whose objects are not the making of private 30 Warner v. Beers, 23 Wend. (N. Y.) 103. 31 1 Bl. Comm. 468. 3 2. Thomas v. Dakin, 22 Wend. (N. Y.) 9. Cf. Southern Pac. R. Co. V. Orton (G. 0.) 32 Fed. 457. § 4) PUBLIC OORPOEATIONS — DEFINITION H profit nor supplying the wants of the members.^' All corpora- tions are supposed to be created for the public good; other- wise the legislature, acting for the public, would not enact laws to bring them into existence; and formerly the popular idea was that the public is interested in every corporation cre- ated by it through its legislative authority. The members of a corporation were supposed to be able and willing to return something to the state in consideration for the favors confer- red upon them by the incorporation. In Virginia and North Carolina the Supreme Courts in early cases made bold to de- clare that no act of incorporation ought ever to be passed by the legislature but in consideration of services to be rendered to the public.^* The same view found frequent expression or recognition also in the decisions of other states, but this judicial opinion as to matters of public policy in respect to corporations has not controlled the legislative departments of our American states. In the appropriate exercise of their co-ordinate powers with regard to the public policy of the state, the Legislatures, during the latter half of the nineteenth century, in some states gradually, in others rapidly, seemed generally to have reached their own conclusion that corpora- 3 3 Dartmouth College Case, 4 Wheat. (U. S.) 518, 4 L. Ed. 629; BOARD OF COM'RS OF HAMILTON COUNTY v. MIGHBLS, 7 Ohio St. 109, Cooley, Gas. Mun. Corp. 4; Soper v. Henry County, 26 Iowa, 267; Miners' Ditch Co. v. Zellerbach, 37 Cal. 543, 99 Am. Dec. 300; Ten Byck v. Delaware & R. Canal Co., 18 N. J. Law, 200, 37 Am. Dec. 233; Regents of University of Maryland v. Williams, 9 Gill & J. (Md.) 365, 31 Am. Dec. 72; Regents of Uni- versity V. McComiell, 5 Neb. 423. The fact that the state has an interest in it does not make the corporation public, Bank of U. S. V. Planters' Bank, 9 Wheat. 904, 6 L. Ed. 244 ; nor the fact that part of its support comes from the state, Cleaveland v. Stewart, 3 Ga. 283 ; nor that it renders service to the state, Thomson v. Union P. R. Co., 9 Wall. (U. S.) 579, 19 L. Ed. 792. See, also, Raleigh & G. R. Co. v. Davis, 19 N. C. 451; Alabama & T. R. R. Co. v. Kidd, 29 Ala. 221 ; McOune v. Nprwich City Gas Co., 30 Conn. 521, 79 Ajn. Dec. 278 ; People, v. Morris, 13 Wend. (N. Y.) 325 ; Bennett's Branch Imp. Co.'s Appeal, 65 Pa. 242 ; Board of Directors for Leveeing Wabash River v. H^ouston, 71 111. 318. 3 4 MILLS V. WILLIAMS, 33 N. C. 558, Cooley, Cas. Mun. Corp. 1. 12 COEPOEATIONS^ — PUBLIC AND PRIVATE ,(Ch. 1 tions are a public benefit per se. They have accordingly been concocted and created for nearly every imaginable purpose, public and private.'* SAME— CLASSIFICATION 5. Public corporations are divisible into three classes: (a) Quasi corporations. (b) Municipal corporations. (c) Quasi public corporations. A quasi corporation is an involuntary political or civil division of the state, created by general law to aid in the administration of government. A municipal corporation is a body politic and corporate created by law by the incorporation of the inhab- itants of a city, town, or district as an agency of the state to regulate and administer the local af- fairs thereof. A quasi public corporation is a private corporation or- ganized to make profit by rendering public service or supplying public wants. The word "quasi," used in the first and last of the foregoing definitions, is the word usually employed by courts and au- thors in describing these two kinds of public corporations, and has been so long used as to be recognized as a part of our le- gal nomenclature, foreign and technical though it be. Literal- ly rendered, a quasi corporation is an almost corporation, and 80 Judge Thompson (1 Thomp. Priv. Corp. § 132), giving extracts from tHe laws of eight representatlTe states, showing the purposes for which corporations are permitted, describes such legislation as "fantastic patchwork." Judge Dillon (1 Dill. Mun. Corp. [5th, Ed.l § 56) quotes approvingly the language of an Illinois court, that corpo- rations "have become the greatest means of state and national pros- perity," and further says that "public and municipal corporations in all the states and territories are constantly created and universally adopted as part of the ordinary machinery of government." § 5) PUBLIC OOBPOEATION^ — CLASSIFICATION 13 a quasi public corporation is an almost public corporation. To the profession, therefore, a quasi corporation is an organi- zation vested with some of the powers and faculties of a cor- poration, and yet defective in some essential features. The term "quasi corporations" is used, therefore, to describe bodies loosely organized, and possessing only a part of the usual cor- porate powers and attributes. Quasi corporations represent the lower order of corporate life, and vary in their functions according to the purposes which they are intended to serve. Such are counties, townships, school districts, and the like.'* 8 6 The word "quasi" has been too long and generally used to be readily abandoned, but both the quasi corporations might appropri- ately be included under the term "civil CQiporations," for civil cor- porations they surely are. Blaekstone says the civil corporations are such as are erected lor a variety of temporal purposes, and In- stances the l£lng, the town and borough corporations, church ward- ens, college of physicians, and tlie universities of Cambridge and Oxford. 1 Bl. Comm. *471. Bouvler defines civil corporations to be "such as afford facilities lor obtaining loans of money, making canals, turnpikes, roads, and the like." Title "Corporations." Judge Dillon declares "civil corporations are of different grades or classes, but In essence and nature they must all be regarded as public." 1 Dill. Mun. Corp. (5th Ed.) § 37. It would thus not only simplify the definitions of public corpora- tions, but also comport with the Ideas expressed by these standard authors, to say that public corporations are divided into two classes, municipal and civil; the municipal corporation Including the strict corporation for urban government, and the civil embracing all other kinds of public corporations. Quasi corporations are recognized and treated of in the following cases: BOARD OF COM'RS OF HAMILTON COUNTY v. MIGH- ELS, 7 Ohio St. 109, Cooley, Cas. Mun. Corp. 4; Wehn v. Gage County Com'rs, 5 Neb. 494, 25 Am. Rep. 497; Talbot County Com'rs V. Queen Anne's County Com'rs, 50 Md. 245 ; White v. Commissioners of Chowan, 90 N. C. 437, 47 Am. Rep. 534; School Dlst. No. 11 V. Williams, 38 Ark. 454 ; ASKEW v. HALE COUN- TY, 54 Ala. 639, 25 Am. Rep. 730, Cooley, Cas. Mun. Corp. 355 ; Soper V. Henry County, 26 Iowa, 264; Harris v. School Dlst., No. 10, In Canaan, 8 Fost. (28 N. H.) 58 ; Scales v. Ordinary of Chattahoochee County, 41 Ga. 225; Rogers v. People ex rel. Brewer, 68 111. 154; Beach v. Leahy, 11 Kan. 23; Hamilton County v. Garrett, 62 Tex. 602 ; Riddle v. Proprietors of Merrimack River Locks and Canals, 7 Mass. 187, 5 Am. Dec. 35; Adams v. President, etc., of Wiscasset 14 COEPOEATIONS PUBLIC AND PRIVATE (Ch. 1 A quasi public corporation describes one which is organized under the statutes providing for the creation of private corpo- rations, and therefore is to be treated as such at all times, save only with regard to its public franchise and functions, such as the power of eminent domain or the duty of common carrier.'^ To this class belong railways, elevators, canals, and the nu- merous public service corporations of our cities.^* The municipal corporation is the only representative of the strict and complete public corporation ; it is represented in our cities, boroughs, towns, and villages, whether incorporated un- der general or special laws. As intimated above counties, towns, townships, and school districts are not municipal corpo- rations, but only quasi^ corporations, with limited statutory powers and liabilities, and not subject to the doctrines of the law peculiarly applicable to municipal corporations. This phrase will be used herein in its strict and proper sense, as referring to chartered and organized local governments of towns and cities. MUNICIPAL CORPORATIONS — DISTINGUISHING ELEMENTS 6. The municipal corporation is a perfect public corpora- tion, established under and by virtue of a sovereign act of legislation, uniting the people and land with- Bank, 1 Me. 363, 10 Am. Dec. 88; Town of North Hempstead v. Town of Hempstead, 2 Wend. (N. Y.) 109; McLoiId v. Selby, 10 Conn. 890, 2T Am. Dec. 689; Commonwealtli v. Green, 4 Whart. (Pa.) 531, 598 ; Cole v. Fire Engine Co. in East Greenwicli, 12 R. I. 202; Polk V. Plummer, 2 Humpli. (Tenn.) 500, 37 Am. Dec. 566; Levy Court v. Coroner, 2 Wall. (U. S.) 501, 17 L. Ed. 851. S7 Munn v. Illinois, 94 U. S. 113, 126, 24 L. Ed. 77 ; Railroad Com- mission Cases, 116 U. S. 307, 6 Sup. Ct. 334, 388, 1191, 29 L. Ed. 636 ; Chicago, B. & Q. R. Co. v. Iowa, 94 U. S. 155, 164, 24 L. Ed. 94; State ex rel. Attorney General v. Ironton Gas Co., 37 Ohio St. 45. 3 8 Clark, Priv. Corp. §§ 10, 11, p. 30; Thomp. Priv. Corp. § 27; Head V. Curators of State University, 47 Mo. 220; Board of Di- rectors for Leveeing Wabash River v. Houston, 71 111. 318 ; Tinsman V. Belvidere Delaware R. Co., 26 N. J. Law, 148, 69 Am. Dec. 565. §§ 6-7) MUNICIPAL CORPORATIONS — ELEMENTS 15 in a prescribed boundary into a body corporate and politic for the purposes of local and self-govern- ment, and invested with the powers necessary therefor. 7. States and territories are not municipal corporations. A municipal corporation is perfect as contradistinguished from the imperfect quasi corporation, the county, district, or township, loosely organized under general law into a gov- ernmental agency for local administration of the state author- ity within a subdivision of the state,'" which in strictness can- not be said to be incorporated, though the statutes of many states declare them to be corporations. The municipal cor- poration is duly incorporated not primarily to enforce state laws, but chiefly to regulate the local affairs of the city, town, or district incorporated by proper legislation and administra- tion.*" It is lawfully and fully empowered so to do.*^ Prac- 3 9 BOARD OF COM'RS OF HAMILTON COUNTY v. MIGHELS, 7 Ohio St. 109, Cooley, Cas. Mun. Corp. 4; Talbot County Cora'rs v. Queen Anne's County Com'rs, 50 Md. 245 ; Manuel v. Commissioners of Cum- . iDerland County, 98 N. C. 9, 3 S. E. 829 ; Schultes v. Eberly. 82 Ala. 242, 2 South. 345 ; Cathcart v. Comstock, 56 Wis. 590, 14 N. W. 833 ; Rog- ers V. People ex rel. Brewer, 68 111. 154 ; Beach v. Leahy, 11 Kan. 23 ; Pulaski County v. Reeve, 42 Ark. 54; State ex rel. Chouteau v. Lef- fingwell, 54 Mo. 458; Soper v. Henry County, 26 Iowa, 264; Hill V. City of Boston, 122 Mass. 344, 23 Am. Rep. 332. 40 Cuddon v. Eastwick, 1 Salk. 143 ; Heller v. Stremmel, 52 Mo. 309; People v. Morris, 13 Wend. (N. Y.) 325; PEOPLE ex rel. LE ROY T. HURLBUT, 24 Mich. 44, 9 Am. Rep. 103, Cooley, Cas. Mun. Corp. 36; East Tennessee University v. Mayor, etc., of City of Knoxville, 6 Baxt (Tenn.) 166 ; State ex rel. Sherman v. Common Council of City of Milwaukee, 20 Wis. 87. *i Cooley, Const. Lim. (6th Ed.) p. 138 ; State ex rel. Holt v. Denny, 118 Ind. 449, 21 N. E. 274, 4 L. R. A. 65, and State ex rel. Jame- son v. Denny, 118 Ind. 382, 21 N. E. 252, 4 L. R. A. 79 ; PEOPLE* ex rel. LE ROY v. HURLBUT, supra ; People ex rel. Board of Park Com'rs v. Common Council of Detroit, 28 Mich. 228, 15 Am. Rep. 202; Taylor v. City of Carondelet, 22 Mo. 105; Heland v. City of Lowell, 3 Allen (Mass.) 407, 81 Am. Dec. 670; State v. Tryon, 39 Conn. 183; Mason v. City of Shawneetown, 71 111. 533; Starr v. 16 CORPOEATI,ONS PUBLIC AND PEIVATB (Ch. 1 tically it may fall far short of perfection, but in the eye of the law it is the only ideal of a complete public corporation. Its object is public,*'' though incidents connected with it may be of private nature," and so far forth it is subject to the rules of liability controlling private corporations in the ownership of property,** while the quasi public corporation is of a pri- vate nature and object, with incidents only that are public.*" The municipal is the only corporation standing as the repre- sentative of the purely public corporation. It is established under law ; ** i. e., it may be created by special charter enacted by the general assembly, without pop- City of Burlington, 45 Iowa, 87; Bearden v. City of Madison, 73 Ga. 184; Milne v. Davidson, 5 Mart. (N. S.) (La.) 409, 16 Am. Dec. 189. <2 1 Thomp. Prlv. Corp. 22; Dean v. Davis, 51 Gal. 406; People V. Morris, 13 Wend. (N. T.) 325; Appeal of Bennett's Branch Imp. Co., 65 Pa. 242; Hanson v. Vernon, 27 Iowa, 28, 1 Am. Kep. 215. 4S-Balley v. Mayor, etc., of City of New York, 3 Hill (N. Y.) 581, 38 Am. Dec. 669; Jones v. City of New Haven, 34 Conn. 1; Com- monwealth V. City of Philadelphia, 132 Pa. 288, 19 Atl. 136; Wag- ner V. City of Eock Island, 146 111. 139, 34 N. E. 545, 21 L. E. A. 519; State ex reli Holt v. Denny, 118 Ind. 449, 21 N. B. 274, 4 L. B. A. 65; PEOPLE ex rel. LE ROY v. HUELBUT, 24 Mich. 44, 9 Am. Eep. 103, Cooley, Cas. Mun. Corp. 36. ** Jones V. City of New Haven, 34 Conn. 1; Brumm's Appeal (Pa.) 12 Atl. 855; Town of Montpelier v. Town of Bast Montpelier, 29 Vt. 12, 67 Am. Dec. 748; Grogan v. City of San Francisco, 18 Cal. 590; Webb v. Mayor, etc., of City of New York, 64 How. Prac. (N. Y.) 10; Nichol v. Mayor, etc., of Town of Nashville, 9 Humph. (Tenn.) 252 ; People v. Common Council of Detroit, 28 Mich. 228, 15 Am. Eep. 202; United States v. Baltimore & O. R. Co., 17 Wall. (U. S.) 332, 21 L. Ed. 597. 46 Hannibal & St. J. E. Co. v. Marion County, 36 Mo. ,294; Good- now -f. Board of Com'rs of Ramsey County, 11 Minn. 31 (Gil. 12); Louisville & N. R. Co. v. Davidson County Court, 1 Sneed (Tenn.) 637, 62 Am. Dec. 424; Granger v. Pulaski County, 26 Ark. 37; Ray County V. Bentley, 49 Mo. 236; Laramie County v. Albany County, 92 U. S. ' 307, 23 L. Ed. 552. But see Stanislaus County ex rel. Smith v. Myers, 15 Cal. 33; Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77; Chicago,. B. & Q. R. Co. v. Iowa, 94 U. S. 155, 24 L. Ed. 94 ; State ex rel. Attorney General v. Ironton Gas Co., 37 Ohio St. 45. 40 Elliott, Mun. Corp. §§ 12, 13; Clark, Prlv. Corp., Appendix; People V. Stout, 23' Barb. (N. Y.) 349 ; People ex rel. v. City of Butte, §§ 6-7) MUNICIPAL COEPOBATIONS — ELEMENTS 17 ular expression or action from the inhabitants of the territory, as well as by their request or consent.*' Indeed, municipali- ties have been incorporated in direct antagonism to the ex- pressed wish of the people.** Or it may be voluntarily or- ganized by the residents of a specified territory under general incorporation laws, enacted for such purpose, and authorizing the erection of a municipality by such means.** In the first case the charter is the test and measure of the granted pow- ers ; in the latter they are to be found in the general corpora- tion statutes. The difference between the two is only in the 4 Mont 179, 1 Pac. 414, 47 Am. Eep. 346 ; State v. Curran, 12 Ark. 321; Taylor v. Commissioners of Town of Newberne, 55 N. C. 141, 64 Am. Dec. 566 ; Smith v. People ex rel. Malone, 154 111. 58, 39 N. E. 319. <7 Inhabitants of Gorham v. Inhabitants of Springfield, 21 Me. 58; Cheaney v. Hooser, 9 B. Mon. (Ky.) 330; Blessing v. City of Galves- ton, 42 Tex. 641 ; Morford v. TJnger, 8 Iowa (8 Clarke) 82 ; Clarke V. Rogers, 81 Ky. 43 ; BERLIN v. GORHAM, 34 N. H. 266, Cooley, Cas. Mun. , Corp. 15 ; People ex rel. Redman v. Wren, 5 111. (4 Scam.) 269; People v. Morris, 13 Wend. (N. Y.) 325; State ex rel. Dome v. Wilcox, 45 Mo. 458 ; Smith v. McCarthy, 56 Pa. 359 ; Alcorn v. Ham- er, 38 Miss. 652 ; State v. Steunenberg, 5 Idaho, 1, 45 Pac. 462 ; In re Narbeth Borough, 16 Pa. Co. Ct. R. 29 ; De Hart v. Atlantic City, 62 N. J. Law, 586, 41 Atl. 687. *8 Elliott, Mun. Corp. § 14. "The erection of such a corporation is in truth simply the creation of a new instrumentality of govern- ment." Elliott, Roads & S. p. 313; People ex rel. v. City of Butte, 4 Mont. 179, 1 Pac. 414, 47 Am. Rep. 346 ; Inhabitants of Gorham v. Inhabitants of Springfield, 21 Me. 58; Bristol v. Town of New Ches- ter, 3 N. H. 524 ; State v. Curran, 12 Ark. 321 ; People ex rel. Red- man V. Wren, 5 111. (4 Scam.) 269; Coles v. Madison County, 1 111. (Breese) 154, 12 Am. Dec. 161 ; Warren v. Mayor and Aldermen of Charlestown, 2 Gray (Mass.) 84 ; People v. Morris, 13 Wend. (N. Y.) 325; Spring Valley Waterworks v. City of San Francisco, 22 Cal. 434; Zabriskie v. Cleveland, C. & C. R. Co., 23 How. (U. S.) 381, 16 L. Ed. 488; State ex rel. Fremont, E. & M. V. B. Co. V. Babcock, 25 Neb. 70^, 41 N. W. 654; New York Fire Dept. v. Kip, 10 Wend. (N. Y.) 267; Proprietors of Latid of Southold v. Horton, 6 Hill (N, Y.) 501 ; Morford v. Unger, 8 Iowa, 82. 4» Von Phul V. Hammer, 29 Iowa, 222; Kimball v. Town of Rosen- dale, 42 Wis. 407, 24 Am. Rep. 421 ; City of Wyandotte v. Wood, 5 Kan, 603; Thomas v. Incorporated Village of Ashland, 12 Ohio St. 124 ; City of Lafayette v. Jenners, 10 Ind. 70 ; State v. Steunenberg, 5 Idaho, 1, 45 Pac. 462. COOL.MUN.CORP. — 2 18 CORPORATIONS PUBLIC AND PRIVATE (Ch. 1 mode of organization. When fully incorporated, both are equally perfect public corporations. It is a "sovereign act of legislation," because in this country no other power in the state may create the corporation.'" The power may not be delegated to any inferior body.°^ The Gen- eral Assembly or Legislature of the state alone possesses this inherent creative power.'^ No court or county board or oth- 5 Doe ex dem. Chandler v. Douglass, 8 Blackf. (Jnd.) 10, 44 Am. Dec. 732; United States v. Home Ins. Co., 22 Wall. (U. S.) 99, 22 L. Ed. 816; Clarke v. Rogers, 81 Ky. 43; MILLS v. WILLIAMS, 33 N. C. 558, Cooley, Cas. Mun. Corp. 1; People v. President, etc., of Manhattan Co., 9 Wend. (N. T.) 351. 51 City of St. Louis v. Russell, 116 Mo. 248, 22 S. W. 4Y0, 20 L. R. A. 721; Thompson v. Schermerhorn, 6 N. Y. 92, 55 Am. Dec. 385; McOrowell v. Bristol, 89 Va. 652, 16 S. E. 867, 20 L. R. A. 653; Lauenstein v. City of Pond du Lac, 28 Wis. 336 ; City of East St. Louis V. Wehrung, 50 111. 28; Mayor, etc., of City of Baltimore v. Scharf, 54 Md. 499 ; Danforth v. Mayor, etc.. of City of Paterson, 34 N. J. Law, 163 ; Ruggles v. Inhabitants of Nantucket, 11 Cush. (Mass.) 433. Also, see City of Oakland v. Carpentier, 13 Cal. 540, and Mat- thews V. City of Alexandria, 68 Mo. 115, 30 Am. Rep. 776, where the cities empowered to build and regulate wharves undertook to confer the right upon lessees or contractors. 1 Thomp. Priv. Corp. § 110; STATE V. SIMONS, 32 Minn. 540, 21 N. W. 750, Cooley, Cas. Mun. Corp.. 12; In re Incorporation of Village of North Milwaukee, 93 Wis. 616, 67 N. W. 1033, 33 L. R. A. 638 ; Territory ex rel. Kelly v. Stew- art, 1 Wash. 98, 23 Pac. 405, 8 L. R. A. 106; State v. Armstrong, 3 Sneed (Tenn.) 634. The power to organize or perform ministerial functions under the law authorizing incorporation may be vested in courts or official boards. EX parte Chadwell, 3 Baxt. (Tenn.) 98 ; Greeneville & Paint Rock Narrow Gauge R. Co. v. Johnson, 8 Baxt. (Tenn.) 832; Heck v. McEwen, 12 Lea (Tenn.) 97; State v. Leather- man, 38 Ark. 81 ; Clark, Priv. Corp. p. 41, note ; Cooley, Const. Lim. (6th Ed.) pp. 137, 248. 52 Judge Cooley (Cooley, Const. Lim. [6th Ed.] 141) says : "The prevailing doctrine in the courts appears to be that, except in those cases where, by the Constitution, the people have not expressly re- served to themselves a power of decision, the function of legisla- tion cannot be exercised by them, even to the extent of accepting or rejecting a law which has been framed for their consideration." '■Municipal corporations can only exist under and by virtue of leg- islative enactment." City of Guthrie v. Wylie, 6 Okl. 61, 55 Pac. 103. See Hope v. Deaderick, 8 Humph. (Tenn.) 1, 47 Am. Dec' 597 ; Jameson v. People ex rel. Nettleton, 16 111. 257, 63 Am. Dec. 304; Atkinson v. Marietta & C. R. Co., 15 Ohio St. 21 ; Mayor, etc., of City §§ 6-7) MUNICIPAL COKPOKATIONS— ELEMENTS 19 er authority is competent for this legislative function/* It is a sovereign act of legislation, in whatever form. It unites the people and the land, for neither people nor land alone can constitute a municipality. Like a home, it re- quires a union of both elements — the land to give it body, and , men to give it spirit and life. Both are essential to its crea- tion and to its existence."* It has a prescribed boundary, be- cause the limits of the municipality must be fixed and definite, that its territorial jurisdiction may not be uncertain or doubt- ful." The body is corporate and politic because it is authorized and organized as an agency of the state for public uses and the public good."* of Mobile v. Moog, 53 Ala. 561; McPherson v. Foster, 43 Iowa, 4S, 22 Am. Kep. 215 ; Town of New Boston v. Town of Dunbarton, 12 N. H. 409 ; City of Memphis v. Memphis Water Co., 5 Heisk. (Tenn.) 529. 53 McCuUoch V. State of Maryland, 4 Wheat. (U. S.) 316, 424, 4 li. Ed. 579; Mayor, etc., of City of Mobile v. Moog, 53 Ala. 561; Franklin Bridge Co. v. Wood, 14 Ga. 80; Mayor, etc., of City of Morristown v. Shelton, 1 Head (Tenn.) 24; Greeneville & Paint Rock NarroW Gauge R. Co. v. Johnson, 8 Baxt. (Tenn.) 332 ; State v. Jennings, 27 Ark. 419. But see, also. People ex rel. Shumway v. Ben- nett, 29 Mich. 451, 18 Am. Rep. 107; Blanchard v. Bissell, 11 Ohio St. 96; People v. Carpenter, 24 N. Y. 86; Devore's Appeal, 56 Pa. 163 ; 'ijaylor v. City of Ft. Wayne, 47 Ind. 274. 54 Baumgartner v. Hasty, 100 Ind. 575, 50 Am. Rep. 830; City of Philadelphia v. Fox, 64 Pa. 180; Lowber t. Mayor, etc., of City of New York, 5 Abb. Prac. (N. Y.) 325 ; Clarke v. City of Rochester, 24 Barb. (N. Y.) 446 ; Kelly v. Pittsburgh, 104 U. S. 78, 26 L. Ed. 659 ; City of Galesburg v. Hawkinson, 75 111. 152, 156; People ex rel. Shumway v. Bennett, 29 Mich. 451, 18 Am. Rep. 107; PEOPLE ex rel. LE ROY v. HUKLBUT, 24 Mich. 44„ 9 Am. Rep. 103, Cooley, Cas. Mun. Corp. 36 ; State ex rel. Loy v. Mote, 48 Neb. 683, 67 N. W. 810; State ex rel. Childs v. Village of Fridley Park, 61 Minn. 146, 63 N. W. 613. It is the citizens of the city and not the com- mon council who constitute the "corporation." Clarke v. City of Ejochester, 14 How. Prac. (N. Y.) 193, 5 Abb. Prac. 107; Lowber v. Mayor, etc., of City of New York, 5 Abb. Prac. (N. Y.) 325 ; PEO- PLE ex rel. LE ROY v. HURLBUT, 24 Mich. 44, 9 Am. Rep. 103, Cooley, Cas. Mun. Corp. 86. 5 5 Gilchrist's Appeal, 109 Pa. 600; City of Coldwater v. Tucker, 36 Mich. 474, 24 Am. Rep. 601; Cutting v. Stone, 7 Vt. 471; Hamil- ton V. McNeil, 13 Grat. (54 Va.) 389 ; People v. Carpenter, 24 N. Y. 86. 5 6 East Tennessee University v. Mayor, etc., of City of Knoxville, 20 CORPOEATIONS PUBLIC AND PRIVATE (Ch. 1 It is local because," unlike the ancient cities," its powers and franchises are to be confined to its territorial limits, or. lands immediately contiguous, which are sometimes included for police and sanitary purposes. °° It is for self-government, because the idea of foreign dom- ination and exclusion of the people of a city or town from the administration of its internal affairs is repugnant to the funda- mental conception of a municipality and the genius of Ameri- can institutions.*" "Municipium" means a free town, and 6 Baxt. (Tenn.) 166; City of Philadelphia v. Fox, 64 Pa. 185; Heller V. Stremmel, 52 Mo. 309 ; 1 Dill. Mun. Corp. § 23. 67 In People ex rel. Board of Park Com'rs of Detroit v. Common Council of Detroit, 28 Mich. 228, 15 Am. Rep. 202, Cooley, J., said: "While it is a fundamental principle in the state, recognized and per- petuated by express provisions of the Constitution, that the people of every hamlet, town, and city of the state are entitled to the benefits of local self-government, the Constitution has not pointed out the precise extent of local powers and capacities, but has left them to be determined in each case by the legislative authority of the state, from considerations of good policy, as well as those which pertain to the local benefit and local desires." People v. Morris, 13 Wend. (N. Y.) 325 ; People ex rel. Shumway v. Bennett, 29 Mich. 451, 18 Am. Hep. 107. 6 8 Liddell, Rome, c. 27. Babylon, Thebes, Athens, Corinth, Carth- age, and Rome, though cities, merely, were great ruling powers in the ancient world. The early life of the Christian era was entirely urban. Guizot, Hist Civ. lect. II. 69 People V. Bennett, '83 Mich. 457, 47 N. W. 250; Weed v. City of Boston, 172 Mass. 28, 51 N. B. 204, 42 L. R. A. 642 ; Ogden City v. McLaughlin, 5 Utah, 387, 16 Pae. 721; Monroe v. City of Lawrence, 44 Kan. 607, 24 Pac. 1113, 10 L. R. A. 520. But see Van Hook v. City of Selma, 70 Ala. 361, 45 Am. Rep. 85 ; City of Coldwater v. Tucker, 36 Mich. 474, 24 Am. Rep. 601. And concerning disposition of sewage beyond corporate limits, see McBean v. City of Fresno, 112 Cal. 159, 44 Pac. 358, 31 L. R. A. 794, 53 Am. St. Rep. 191. See East Tennes- see University v. Mayor, etc., of City of Knoxville, 6 Baxt. (Tenn.) 166 ; Chicago Packing & Provision Co. v. City of Chicago, 88 111. 221, 30 Am. Rep. 545 ; Dingley v. City of Boston, 100 Mass. 544. 60 Smith, Mun. Corp. § 32; BOARD OF COM'RS OF HAMILTON COUNTY V. MIGHELS, 7 Ohio St. 109, Cooley, Cas. Mun. Corp. 4; Cuddon V. Eastwick, 1 Salk. 143 ; PEOPLE ex rel. LE ROY v. HURL- BUT, 24 Mich. 44, 9 Am. Rep. 103, CQoley Cas. Mun. Corp. 36 ; Peo- ple V. Morris, 13 Wend. (N. Y.) 325 ; People ex rel. Board of Park Com'rs of Detroit v. Common Council of Detroit, 28 Mich. 228, 15 §§ 6-7) MUNICIPAL GORPOEATIONS — ELEMENTS 21 "municeps" a free citizen thereof, as those ideas were con- ceived in the Roman Empire. This idea persisted in Italy, Germany, France, and England through the Middle Ages, and despite the Hapsburg, Bourbon, and Stuart tyrannies."^ A city not governed by its own laws and ordinances in its domestic concerns is not a municipality, either by history or etymology. It must have powers, or it cannot be a govern- ment — ;powers sufficient to authorize it to make its own laws and enforce them.*^ It is an imperium in imperio — a favorite in our complex American system of checks and balances and home rule. States and Territories States and territories are not municipal corporations. A consideration of the essential elements of the municipal cor- poration makes this matter so plain as to seem unnecessary for statement; but, in view of certain judicial expressions and loose statements of authors, the essential difference should be noticed. By the state here is meant a self-existent body of persons united together in one political entity, organized under a distinct government possessing sovereign power recog- nized and upheld as supreme."^ It is used generically, and Am. Rep. 202 ; State ex rel. Holt v. Denny, 118 Ind. 449, 21 N. E. ,274, 4 L. K. A. 65. 61 Hallam's History Middle Ages, c. 8; 1 Hume's England, App. II ; Norton's History of London, c. 20 ; 1 Stephen's Eng. Const, c. 7. 6 2 Hoptins V. Mayor of Swansea, 4 Mees. & W. 621; State v. Tryon, 39 Conn. 183; Mason v. City of Shawneetown, 77 111. 538; Heland v. City of Lowell, 3 Allen (Mass.) 407, 81 Ain. Dec. 670; Starr v. City of Burlington, 45 Iowa, 87 ; Taylor v. City of Caronde- let, 22 Mo. 105; City of St. Paul v. Colter, 12 Minn. 41 (Gil. 16) 90 Am. Dec. 278 ; Markle v. Town Council of Akron, 14 Ohio, 586 ; Trig- ally V. Mayor, etc., of City of Memphis, 6 Cold. (Tenn.) 382. 6 3 Bouv. Law Diet, subject "State." "A multitude of people united together by a communion of interest, and by common laws, to which they submit with one accord." Burlamaqui, Politic. Law, c. 5; Geor- gia V. Stanton, 6 Wall. (U. S.) 65, 18 L. Ed. 721 ; Chisholm v. Geor- gia, 2 Dall. (U. S.) 457, 1 L. Ed. 440 ; Des Moines County v. Harker, 34 Iowa, 84 ; Delafield v. Illinois, 2 Hill (N. X.) 159 ; Texas v. White, 7 Wall. (U. S.) 700, 19 L. Ed. 227. 22 CORPOEATIONS PUBLIC AND PKIVATEJ (Ch. 1 includes, therefore, not only the states of the federal union, but the government of the United States itself. The state exists by itself and for itself, and without the consent of any one except the people thereof. It is not created or estab- lished under an act of legislation, or by the consent of any superior power. In America, at least, it derives its power ex- clusively from the consent of the people.''* This consent is essential, and some lav/ful expression of it must be given to authorize its creation. If it have not the attribute of soy- ejeignty, it is not a state.''^ That is the power which creates corporations. It controls and dissolves them. This sov- ereign power is that which makes it a state, and not a corpora- tion, which is a derivative creation, owing its existence and powers to the state."" It is, of course, not to be denied that in very many of their attributes, functions, and powers, the state and municipal corporation bear close resemblance f and by one seeking resemblance only they might readily be mis- taken for the same kind of political entity. But after tracing all these points of similarity, there still remains the distinguish- ing and ineradicable difference that one is creator and the oth- er is creature. °* 8* See Declaration of Independence, first and second paragraphs. 6 5 Luther v. Borden, 7 How. (U. S.) 1, 12 L. Ed. 581; Bank of Augusta V. Earle, 13 Pet. (U. S.) 519, 10 L. Ed. 274. But see State of Indiana v. Woram, 6 Hill (N. Y.) 33, 40 Am. Dec. .^78 ; Dikes v. Miller, 25 Tex. Supp. 281, 78 Am. Dec. 571 ; President, etc., of Michigan State Bank v. Hastings, 1 Doug. (Mich.) 225, 41 Am. Dec. 549 ; People v. City of St. Louis, 10 111. 351, 48 Am. Dec. 339. 68 Ante, § 1; Thomp. Priv. Corp. §§ 1, 15, 35; Clark, Priv. Corp. §§ 4, 13 to 18, Inc., Appendix. 67 Delafield v. Illinois, 2 Hill (N. Y.) 159: "A state is a legal be- ing, capable of transacting some kinds of business like a natural person." State of Indiana v. Woram, 6 Hill (N. Y.) 33, 40 Am. Dec. 878. See Lowell, Stocks, § 2, where he says ; " * * * The par- allel, indeed, between a state and a corporation, is very close." 6 8 BERLIN V. GORHAM, 34 N. H. 266, Cooley, Cas. Mun. Corp. 15; President, etc., of City of Paterson v. Society for Establishing Useful Manufactures, 24 N. J. Law, 385 ; Hope v. Deaderick, 8 Humph. (Tenn.) 1, 47 Am. Dec. 597. §§ 6-7) MUNICIPAL OOKPOEATIONS — ELEMENTS 23 A territory of the United States, by its very nature, belongs to a distinct class of political bodies. It is not self -existent."' The consent of the population is not required to its creation, organization, or political existence. It is created by a sov- ereign act of legislation," but its area is too extensive for a municipality. Under congressional grant it may possess the great powers of local legislation, including the creation of corporations, public and private.^^ But the judicial and ex- ecutive departments are administered by appointees of the fed- eral government, so that the power of local self-government in the territory is partial only.''^ The territorial powers of legislation usually granted by Congress are entirely subject to the congressional will.'^^ Congress may at any time abrogate the territorial laws. It may itself enact laws for the territo- rial government in any or all of its details.^* It may grant charters to corporations, private or municipal, and may create new quasi corporations, and divide or consolidate existing ones.'* Congress possesses over the territories all the power « 9 Vincennes University v. Indiana, 14 How. (U. S.) 273, 14 L. Ed. 416 ; Miners' Bank v. Iowa, 12 How. 1, 13 L. Ed. 86T ; Brittle v. People, 2 Neb. 198. 7 Williams v. Bank of Michigan, 7 Wend. (N. Y.) 539. Ti People ex rel. v. City of Butte, 4 Mont. 179, 1 Pac. 414, 47 Am. Rep. 346 ; Deitz v. City of Central, 1 Colo. 323. 7 2 Territory v. Guyott, 9 Mont. 46, 22 Pac. 134. 7 3 Rogers V. Burlington, 3 Wall. (U. S.) 662, 18 L. Ed. 79; EiddlcU V. Amelin, 1 Mo. 5 ; Williams v. Bank of Michigan, 7 Wend. (N. Y.) 539. 7* In the case of Eiddick v. Amelin, 1 Mo. 5 (decided in 1821, about the time of the admission of Missouri to statehood), the ob- jection was made that such a Legislature (territorial) was not sover- eign, and that nothing short of sovereign power could create a corpo- ration. The answer given was that Congress could give and had given the power to legislate on such subjects. In an act of Congress (Act March 2, 1867, c. 150, § 1, 14 Stat. 426 ; Rev. St. U. S. § 1889), it was provided that " * * * the legislative assemblies of the several territories of the United States shall not * * * grant private charters or especial privileges. * * *" In Seattle v. Tyler, Wash. T. 1877, this section was held by Chief Justice Lewis, of that territory, to extend to and embrace municipal corporations within its prohibition. 75 1 Dill. Mun. Corp. (4th Ed.) § 38; CITY OF GUTHRIE v. TER- 24 COEPOEATIONS PUBLIC AND PRIVATE (Ch. 1 .which the state possesses over public corporations, quasi and municipal, and thereby the territory is given a much closer resemblance than the state to municipal corporations.'^" The act of Congress under which it is authorized, commonly called the "Organic Act," is its charter of existence; and, like the municipality, the territory may exercise only such powers a& are granted by the charter.'' But it has none of the common- law qualities of a corporation which inhere in the municipal corporation, and could, at most, be called with semblance of propriety a quasi corporation. It is, however, a peculiarly American political entity of statutory origin, and is as dis- tinctly characterized by its name "territory" as the municipal corporation is by the term "municipality." Historical The Americaij municipal corporation, though differing in many respects from its archetype, the English municipality of the eighteenth century, has in general the same corporate character and attributes, and its law may be studied to ad- vantage in the light of municipal history. The history of the development of the municipality, which had its origin under Roman rule, in the ancient Italian towns, of its struggles for existence during the storm and stress of the Feudal Ages, of the sturdy resistance of burgher and citizen against the tyran- ny and exaction of lord and king, of the undying love of home rule among Germanic peoples, and especially of the struggle of these freedom-loving communities in England with the despotism of the house of Stuart, which claimed to rule by divine right, is interesting and instructive; but the limits RITORY, 1 Okl. 188, 31 Pac. 190, 21 L. E. A. 841, Cooley, Cas. Mun. Corp. 30, 52 ; Alger v. Hill, 2 Wash. 344, 27 Pac. 922 ; Deitz v. City of Central, 1 Colo. 332. TeRiddick v. Amelln, 1 Mo. 5; Williams v. Bank of Michigan, 7 Wend. (N. Y.) 539. 7 7 Reynolds v. United States, 98 V. S. 145, 25 L. Ed. 244; First Nat. Bank v. Yankton County, ^101 U. S. 129, 25 L. Ed. 1046; Murphy V. Ramsey, 114 U. S. 15, 5 Sup. Ct. 747, 29 L. Ed. 47. :§§ 6-7) MUNICIPAL CORPOKATIONS — ELEMENTS 25 •of this handbook do not permit of extended notice.'" Suffice it here to say that the elements which contribute love of home rule to the municipality are of German origin, and those con- tributing to it power as an organism come from Rome. Unit- ing these two elements, we find the essentials of the munici- pality; its particular form, powers, and life are matters of environment. The town was alike the product and exponent •of peaceful industry ; it was also the prey of the conquering warrior. Municipal life had shown signs of considerable activity under the Saxon kings ; but Norman conquest and Norman rule were repressive. The peaceful citizen was no match for the mailed warrior, and for a long time municipal life was low, unfruitful, and uninviting. The life which had before been seen in the streets of the cities and towns was then attracted to the feudal castle. Still the towns endured, and London never ceased to grow. Gradually they began to be recognized as holding the balance of power between con- tending kings and nobles, and the want of the one or the other for men and money afforded the towns their opportunity. Under the guilds the tradesmen and artisans had acquired both property and the habit of organization. These not only commanded respect, but gave them power to demand and ob- tain recognition and confirmation of their customary rights and privileges. Gradually they grew in importance, until in the thirteenth century Simon de Montfort summoned two citi- zens from each borough to sit in Parliament. Before the close of the following century this summons had become regular and habitual, and the cities, boroughs, and leading, towns of England were as firmly established as were the shires in their right of parliamentary representation. At, first these burghers were the staunch supporters of the king in his efforts to break the power of the great barons ; but later, when the royal power under the Tudors and the Stuarts was overshad- owing all other forces in the government^ the instinct of self- 78 For a concise account of the rise of municipalities see McQuil- lan, Mun. Corp. vol. 1, c. 1. 26 CORPOEATIONS PUBLIC AND PRIVATE (Oh. 1 preservation led the towns to side with the yeomen and gentry in their struggle with absolutism, and thereby advanced their interests. In early times every freeman settling in the borough and paying dues to it became thereby a burgher; but in the nat- ural evolution of urban life money became the power, and the merchant guilds gradually grew to become municipal oli- garchies. After a long strife these in tui-n had been siicceeded by the trade companies. Besides their civic privileges and franchises, the boroughs had acquired civic property; and, consistently with the spirit of the age, the persons then in power in them obtained royal charters, conferring sole mu- nicipal power upon the existing burgesses and their successors, thereby excluding all immigrants and newcomers. Many of the towns consequently ceased to grow, and in later years some of them were almost abandoned by people; yet they retained their parliamentary representation, thus forming the famous "rotten borough" of the last century, of which Old Sarum was the type. The special privileges and favors that a little borough thus had over its most prosperous and growing neighbors became a matter of such reproach that the Reform Parliament of 1832 abolished these pocket boroughs, which had dwindled in- to petty villages, controlled by neighboring landlords who ap- pointed parliamentary members; and in 1835 the municipal corporation reform act restored to the people of the towns the municipal essence which had been enjoyed by the favored few within their limits for centuries. The towns, boroughs, and cities became veritable municipalities, self-government was restored to their people, and then began an era of pros- perity among English cities which has continued to the pres- ent time. As said above, the American municipality in its general as- pects differs in some respects from those from which it sprung. This is especially noticeable in their advanced de- velopment of the principles of local self-gov£rnment. One §§ 6-7) MUNICIPAL CORPORATIONS — ELEMENTS 27 instance of this is to be found in the self-chartered cities, a description of which will be found in a subsequent chapter.'" Commission Form of City Government Another and more noticeable development of municipal life is to be found in what is known as the "commission plan" of city government. The commission plan, as now in general operation throughout the United States, is a form of munici- pal government in which all of the powers of the municipality, both legislative and administrative, are unified in a single small elective board. The theory underlying it is that this uni- fication of power in- a few hands means a concentration of power and responsibility in the same hands ; it is therefore a combination of efficiency and popular control of government ; and, finally, as a result of the foregoing, this plan of govern- ment is democratic,, and is in harmony with the letter and spirit of our institutions. This plan marks a distinct departure from the traditional form of national, state, and city government, in which the separation of powers into three branches, legislative, executive, and judicial, was held to be the cardinal and indispensable principle. The American doctrine of "checks and balances," applied so repeatedly and ingeniously in the federal Constitu- tion, very naturally percolated downward through state Con- stitutions and city charters. Here the doctrine took the form of a separation of power into three distinct branches, as men- tioned above. With the coming of the new form of city gov- ernment, this doctrine — once a part of our political religion — is likely to be classed as a superstition of the past. The commission plan was first adopted in Galveston, Texas, in 1901, following the destruction of that city by storm and flood. The commission there in charge of the legislative and administrative work of the city consists of five men, elected at large instead of from wards or other subdivisions of the city. This board of five men appoints all other administrative of- T 9 See post, p. — . 28 COEPOEATIONS— PUBLIC AND PKIVATH (Ch. 1 ficers of the city. From Galveston the plan spread to other Texas cities, and then to neighboring states. At the end of ten years (June, 1911) 140 cities in 27 states had adopted this form. By June, 1913, 281 cities in 36 states were under this plan of government. Four of these cities are places of over 200,000 inhabitants. With the spread of this plan has come many modifications in its details, so that an exact definition of the commission plan of government is impossible. In all cases, however, full power and responsibility are centered in a small elective board.. This small board, elected at large, takes the place of the old city council, which was a large body, elected from definite wards or subdivisions of the city. The size of the commis- sion varies from three to nine persons, but five is the usual number. The term of office is usually four years, but this also varies. The newer charters provide for the initiative, the referendum, the recall, a nonpartisan nomination and election, and a civil service appointive system. Some commissions now employ a city manager as their executive oificer. In all cases the administrative work of the city is divided into depart- ments, usually one department for each commissioner. The usual division is illustrated by the following from the Des Moines charter: (1) Department of Public Affairs; (2) De- partment of Accounts and Finance ; (3) Department of Pub- lic Safety; (4) Department of Streets and Public Improve- ments ; (5) Department of Parks and Public Property. Ch. 2) CREATION OF MUNICIPAL CORPORATIONS 29 CHAPTER II CREATION OF MUNICIPAL CORPORATIONS 8. Power to Create Municipal Corporations. 9. Same — Delegation of Power. 10. Same — What Bodies may Grant Charters. 11. Legislative Discretion. 12. Legislative Power — How Exercised. 13. Territory and Population. 14. Assent to Incorporation. 15. Corporations by Implication or by Prescription. 16. Validity of Incorporation — Compliance with Conditions. 17. Same— De Facto Corporations. 18. Same — How Tested. 19. What Constitutes Municipal Membership. 20. Classification of Municipalities. 21. Operation and Effect of Incorporation. POWER TO CREATE MUNICIPAL CORPORA- TIONS 8. The creation of a municipal corporation is the appropri- . ate and exclusive function of sovereign legislative power. That the creation of a municipal corporation is an act of sovereign legislative power results from the very nature of the corporation, its objects and functions. Every municipal corporation possesses certain elements of sovereign power, such as legislative power ^ and the power of eminent domain.^ Neither of these powers can emanate from any source except the sovereign. In this country that sovereign may be either the federal government or the state.' Since a municipal cor- poration is clothed with power to exercise attributes of sover- - Des Moines Gas Co. v. City of Des Moines, 44 Iowa, 505, 24 Am. Rep. 756. 2 Mayor of Detroit v. Park Com'rs, 44 Mich. 602, 7 N. W. 180. 8 Tied. Mun. Corp. § 22 ; Stoutenburgh v. Hennick, 129 U. S. 141, 9 Sup. Ct. 256, 32 L. Ed. 637 ; Deitz v. City of Central, 1 Colo. 332. 30 CEEATION OF MUNICIPAL CORPORATIONS (Oh. 2 eignty, that power must come from a sovereign; and hence the canon of corporation law that only the state * can create a municipal corporation. Equally certain is it that this power to create municipal cor- porations belongs to the Legislature. All governmental pow- er in this country inheres in the people. They organize their government by a Constitution, wherein they distribute the powers of government among three departments, the legisla- tive, the executive, and the judicial. The granting of any right, power, or franchise pertaining to public matters — in other words, the granting of any portion of the sovereign pow- er — is obviously a function of the legislative department 'as the representative of the people and not of the executive or judicial departments. A municipal corporation requires this grant of governmental authority as the essential condition of its being. Obviously, therefore, the grant of municipal pow- ers to a corporation must come from the legislative depart- ment.^ SAME— DELEGATION OF POWER 9. The power to create a municipal corporation cannot, in the absence of constitutional provisions permitting it, be delegated by the Legislature to any inferior and subordinate tribunal or board. While it is a fundamental principle of constitutional law that legislative power cannot be delegated to the courts, or * The term "state" is here used, not in the sense of one of the United States, hut as designating the power. See City of Guthrie V. T. W. Harvey Lumber Co., 9 Okl. 464, 60 Pac. 247. 5 Hope v. Deaderick, 27 Tenn. (8 Humph.) 1, 47 Am. Dec. 597 ; Peo- ple ex rel. Redman v. Wren, 5 111. (4 Scam.) 269; City of San Fran- cisco v. Canavan, 42 Cal. 541 ; Redell v. Moores, 63 Neb. 219, 88 N. W. 243, 55 L. R. A. 740, 93 Am. St. Rep. 431; Allen v. Board of Trustees of City of Bakersfleld, 157 Cal. 720, 109 Pac. 486; In re Milage of Ridgefield Park, 54 N. J. Law, 288, 23 Atl. 674 ; Town of New Boston v. Town of Dunbarton, 12 N. H. 409. See, also, People ex rel. Shumway v. Bennett, 29 Mich. 451, 18 Am. Rep. 107. § 9) POWER TO CREATE — DELEGATION 31 to any other tribunal, board, or officer,' the question whether the power of the Legislature to create municipal corporations may be delegated to either of the co-ordinate branches of the government, or to certain officers thereof, is one on which there is an apparent conflict of decisions. Certain courts have made some broad general statements which at first blush seem to support the principle that the power may be delegated to the courts ; '' but a careful examination of the opinions in these cases, with one or two doubtful exceptions/ will show that the general question was . not involved in the case and that the court was required under the statute to exercise purely ministerial functions not calling for the exercise of any dis- cretion.* In other cases, the real question involved was not that of the creation of the municipality, but that of the exten- sion of its limits — a question, it is almost needless to say, in- volving entirely different principles.^" On the other hand, whenever the question has been squarely presented, the courts have unqualifiedly held that a statute conferring on the court or other inferior body discretionary ■ power to determine whether public interests will be subserved by the creation of a municipal corporation is invalid as a delegation of legislative power.^^ 8 An exception in the case of delegation of power to municipalities to legislate for local purposes, see post, § '49. 7 People V. Fleming, 10 Colo. 553, 16 Pac. 298; Kirkpatrick v. State ex rel. McKee, 5 Kan. 673; Kayser v. Trustees of Bremen, 16 Mo. 88; Morton v. "Woodford, 99 Ky. 867, 35 S. W. 1112. 8 Kirkpatrick v. State ex rel. McKee, 5 Kan. 673. 9 People V. Fleming, 10 Colo. 553, 16 Pac. 298 ; Kayser v. Trustees of Bremen, 16 Mo. 88 ; Elder v. Incorporators of Central City, 40 W. Va. 222, 21 S. E. 738. 10 Foreman v. Town of Marianna, 43 Ark. 324 ; City of Burlington V. Leebrick, 43 Iowa, 252. 11 STATE V. SIMONS, 32 Minn. 540, 21 N. W. 750, Cooley, Cas. Mun. Corp. 12 ; People v. Town of Nevada, 6 Cal. 143 ; State v. Armstrong, 3 Sneed (Tenn.) 634; In re Incorporation of Village of North Mil- waukee, 93 Wis. 616, 67 N. W. 1033, 33 L. E. A. 638; In re Village of Kidgefield Park, 54 N. J. Law, 288, 23 Atl. 674; Territory ex rel. Kelly V. Stewart, 1 Wash. 98, 23 Pac. 405, 8 L. R. A. 106; People ex rel. Shumway v. "Bennett, 29 Mich. 451, 18 Am. Rep. 107. 32 CEBATION OF MUNICIPAL COEPORATIONS (Ch. 2 The conflicting views, arising as they do from a careless interpretation of the decisions, may be reconciled by an ap- plication of the rule, laid down in several jurisdictions, that while the legislative function of creating a municipal corpora- tion cannot be delegated, the Legislature may, where the mode of creating a municipal corporation is prescribed by a general law, properly leave to the courts the duty of deciding whether the proper steps have been taken under the law to bring the municipality into' existence, and, having found that the re- quirements have been complied with, to declare the munici- pality incorporated.^'' I On principle it would seem unreasonable to distribute the powers of government among these co-ordinate departments, and yet allow one to exercise the functions of anotherj^or to permit one to abrogate its powers by conferring them on another. But it is not regarded an unconstitutional delegation of power to provide that the question whether a community shall become incorporated shall be left to the vote of the peo- ple.^» SAME— WHAT BODIES MAY GRANT CHARTERS 10. Municipal corporations may be created by (a) The Congress of the United States; (b) The state Legislatures; (c) Territorizil Legislatures, when authorized by Con- gress. Power of Congress By the federal Constitution Congress is invested with "pow- er to dispose of and make all needful rules and regulations 12 Ford V. Town of North Des Moines, 80 Iowa, 628, 45 N. W. 1031 ; State ex rel. Gale v. Ueland, 30 Minn. 29, 14 N. W. 58 ; State V. Armstrong, 3 Sneed (Tenn.) 634 ; Kayser v. Trustees of Bremen, 16 Mo. 88 ; Elder v. Incorporators of Central City, 40 W. Va. 222, 21 S. E. 738 ; Barnes v. Minor, 80 Neb. 189, 114 N. W. 146 ; In re Alliance Borough, 19 Pa. Super. Ct. 178. 13 People ex rel. Lore v. Nally, 49 Cal. 478; Guild v. City of Chi- § 10) WHAT BODIES MAY GEANT CHARTERS 33 respecting the territory belonging to the United States," " and "to exercise exclusive legislation over such district as may become the seat of the government of the United States." ^^ Under this authority, Congress has erected the District of Columbia into a municipal corporation,^^ has or- ganized territories, and also, chartered cities and towns within their boundaries.^' Under the express grant of powers con- tained in the Constitution, and the implied grant of those pow- ers essential to the exercise of the express powers, the author- ity of Congress to create municipal corporations within the territories of the national government is obvious and beyond question. It has been upheld in several cases,^* and will prob- ably never again be questioned. Power Inherent in State Legislature The authority of the state Legislatures to incorporate cities and towns as indispensable agencies in the efficient adminis- tration of government is inherent and unquestioned.^" As all legislative power not granted to Congress is reserved to the cago, 82 111. 472 ; Clarke v. City of Rochester, 28 N. X. 605 ; Peo- ple V. Fleming, 10 Colo. 553, 16 Pac. 298. 1* Const. U. S. art. 4, § 3, par. 2. IS Const. TJ. S. art 1, § 8, par. 17. 18 Act) Feb. 21, 1871, c. 62, 16 U. S. Stat. 419; Barnes v. District of Columbia, 91 U. S. 540, 23 L. Ed. 440 ; Stoutenburgh v. Hennick, 129 U. S. 141, 9 Sup. Ct. 256, 32 L. Ed. 637. 17 Congress has rarely, if ever, exercised the power, except possi- bly in the case of Alaska. isMcCulloch V. Maryland, 4 Wheat. (U. S.) 316, 4 L. Ed. 579; Thomson v. Union P. R. Co., 9 Wall. (U. S.) 579, 19 L. Ed. 792 ; Cal- ifornia V. Central P. R. Co., 127 U. S. 1, 39, 8 Sup. Ct. 1073, 32 L. Ed. 150; Chisholm v. Georgia, 2 Dall. (U. S.) 419, 1 L. Ed. 440; Hollingsworth v. Virginia, 3 Dall. (U. S.) 378, 1 L. Ed. 644; Osborn V. Bank of United States, 9 Wheat. (U. S.) 738,*6 L. Ed. 204. See, also, Vincennes University v. Indiana, 14 How. (U. S.) 268, 14 L. Ed. 416; Reynolds v. United "States, 98 U. S. 145, 25 L. Ed. 244; Deitz V. City of Central, 1 Colo. 323. 19 People v. City of Riverside, 70 Cal. 461, 11 Pac. 759 ; Town of New Boston v. Town of Dunbarton, 12 N. H. 409; Hope v. Dead- erick, 8 Humph. (Tenn.) 1, 47 Am. Dec. 597; Redell v. Moores, 63 Neb. 219, 88 N. W. 243, 55 L. R. A. 740, 93 Am. St. Rep. 431. Coot.MuN.CoBP. — 3 34 CREATION OF MUNICIPAL CORPORATIONS (Oh. 2 States, it follows as a necessary consequence, that a state Leg- islature may enact any law not forbidden by the state or federal Constitution.^" The Legislatures, therefore, of the several states, have ex- clusive authority to create, municipal corporations within the territorial limits of the states, in such manner and under such conditions as they may ordain. ^^ The creation of municipal corporations is a legitimate exercise of the sovereign power vested in the Legislature of the state. No Inherent Power of Creation in Territories The territories possess no inherent or sovereign power.^^ Such power as they have has been expressly granted to them by Congress, and may be withdrawn at any time.^^ The ex- tent of this power in each territory is dependent upon the terms of the organic act under which it has been established,-* or upon the general acts of Congress in regard to the terri- tories, and the powers to be exercised by their Legislatures. Under an act authorizing the legislative assemblies of the sev- eral territories to pass general laws enabling persons to asso- ciate themselves together as bodies corporate for mining, man- ufacturing, and other industrial pursuits, power was claimed for the territorial Legislature to incorporate a municipality; 2oCooley, Const. Lim. (6th Ed.) 104; People v. Draper, 15 N. Y. 532; People ex rel. Klokke v. Wright, 70 111. 3S8; Thorpe v. liut- lana & B. R. Co., 27 Vt. 140, 62 Am. Dec. 625. 21 State V. Jennings, 27 Ark. 419; Allen v. Board of Trustees of City of Bakersfield, 157 Cal. 720, 109 Pac. 486; People v. City of Eiverside, 70 Cal. 461, 11 Pac. 759 ; People ex rel. Redman v. Wren, 5 111. (4 Scam.) 269 ; People v. Draper, 15 N. Y. 532 ; Hope v. Dead- erick, 8 Humph. (Tenn.) 1, 47 Am. Dec. 597; In re Incorporation of Village of North Milwaukee, 93 Wis. 616, 67 N. W. 1033, 33 L. R. A. 638. 22 Reynolds v. Uniteii States, 98 U. S. 145, 25 L. Ed. 244 ; First Nat. Bank v. Yankton County, 101 U. S. 129, 25 L. Ed. 1046; United States v. Church of Jesus Christ of Latter-Day Saints, 5 Utah, 361, 15 Pac. 473. 2 3 City of Seattle v. Yesler, 1 Wash. T. 571. 24 First Nat. Bank v. Yankton County, 101 U. S. 129, 25 L.' Ed. 1046. § 11) LEGISLATIVE DISCRETION 35 but this power was denied as hot necessarily implied from the organic act or the general act aforesaid.^' The power has been implied, however, from a provision in the organic act granting to the territorial Legislature power over "all rightful subjects of legislation." "" This general clause has been held sufficient to authorize the Legislature to create municipal and other corporations within the territorial limits for the pur- pose of increasing the efficiency of the territorial government, and supplying the public needs.'" The power of the territorial Legislature has also been challenged upon the ground that this power was expressly granted to Congress, and; being thus delegated to it, cannot be delegated by it to another body. This, amounts to a general challenge of any legislative power in a territory, and has been uniformly overruled by the courts,^* LEGISLATIVE DISCRETION 11. The exercise of the legislative function, of creating mu- nicipal corporations is wholly within the discretion of the Legislature, and is not subject to the con- trol of the judicial power. As we have seen, the power of creating municipal corpora- tions is vested exclusively in the Legislature. In some states the duty of providing for their creation is specifically en- joined upon that department by constitutional provision. For example, the Constitution of 1846 of the state of New York, 25 City of Seattle v. Yesler, 1 Wash. T. 571. 2 8 Burnes v. Mayor, etc., of Atchison, 2 Kan. 454; State v. Young, 3 Kan. 445 ; Deitz v. City of Central, 1 Colo. 323 ; Riddick v. Ame- lin, 1 Mo. 7; People v. City of Butte, 4 Mont. 179, 1 Pac. 414, 47 Am. Rep. 346; Wagner v. Harris, 1 Wyo. 194. 2 7 Deitz V. City of Central, 1 Colo. 323. In this case it was held that, though a Congress has no express power to erect municipal corporations in a territory, it has such authority by virtue of the sovereignty and proprietorship of the United States, and may con- fer it in the organic act on a territorial Legislature. 2 8 Riddick V. Amelin, 1 Mo. 5. 36 CREATION OF MUNICIPAL CORPORATIONS (Cll. 2 provided:^' "It shall be the duty of the Legislature to pro- vide for the organization of cities and incorporated villages," etc. Similar provisions exist in the Constitutions of other states.'" Legislative Discretion Conclusive The creation of a municipal corporation, being an act of legislation, is within the plenitude of legislative power.'^ Yet the failure or refusal of the Legislature to grant charters to towns, boroughs, or villages desiring them, as well as the enactment of such charters of incorporation for other com- munities not wishing to be incorporated, have occasionally undergone investigation by the courts. It sometimes happens that the persons residing in a certain community are eager,, for certain reasons, to be incorporated, and they make applica- tion by petition to the Legislature for that purpose. That body, in the exercise of its undoubted discretion as to what laws it will enact, sometimes refuses to respond favorably to the petition and thus leaves the community in its unincor- porated condition. This is conqlusive upon the inhabitants.'" No power resides in any other department of the government to compel the Legislature to enact any law. Having exercised its discretion, the matter is at an end, and no record is found of any case in which the aid of the courts was invoked to compel the legislative assembly to pe'rform the constitutional duty so imposed upon it. In other instances, yielding to the solicitations of a few persons, or moved by some other con- sideration, the Legislature has granted charters to incorporate communities against the wish of a great majority of the peo- ple. 2» Const. N. Y. 1846, art. 8, § 9. 80 Const. Ohio, 1851, art. 13, § 6; Const. Mich. 1850, art. 15, § 13; Const' Wis. 1848, art. 11, § 3; Const. Cal. 1847, art. 4, § 37; Const. Or. 1857, art. 11, § 5; Const. Kan. 1859, art. 12, § 5; Const. N. D. 1889, § 130 ; Const Neb. 1866, art. 8, § 4. 81 Morford v. Unger, 8 Iowa, 82. 82 Robinson v. Jones, 14 Fla. 256; Mattox v. State, 115 Ga. 212, 41 S. E. 709. § 11) LEGISLATIVE DISCRETION 37 Occasionally it has happened that for violation of, or lack of conformity to, certain constitutional provisions prescribing the mode or condition of law-making, such charters have been held void by the courts; ^' but no case has been reported in which a court has assumed to enjoin the corporation from assuming and exercising its franchises for the reason that the Legislature had acted unwisely or had abused its discretion in granting the charter of incorporation. In states where there is no constitutional requirement for popular assent to the cre- ation of a municipality, the power of the Legislature to create a municipal corporation is absolute,^ and its discretion in enacting the law has been uniformly held to be not a subject for inquiry or review by the courts.^^ The Constitution has invested that department of the government with the discretion to decide for itself and for the people how and when it will exercise that function and perform this duty ; and the Legis- lature having, in the exercise of its undoubted constitutional power, decided that a certain community ought to be incor- porated, and enacted the requisite legislation to that end all inquiry as to the legislative motive or intention, except as appearing from the act itself is excluded from judicial con- sideration.^^ If the act is constitutionally passed, the cor- poration is lawfully created, and that is an end of the matter. S3 Town of Woodbury y. Brown, 101 Tenn. 707, 50 S. W. 743. 34 City of San Francisco v. Canavan, 42 Cal. 541 ; Robinson v. Jones, 14 Fla. 256; People ex rel. Eedman v. Wren, 5 111. (4 Scam.) 269 ; Hope v. Deaderick, 8 Humpji. (Tenn.) 1, 47 Am. Dee. 597 ; Mor- ford V. Unger, 8 Iowa, 82 ; Cheaney v. Hooser, 9 B. Mon. (Ky.) 330 ; Inhabitants of Gorham v. Inhabitants of Springfield, 21 Me. 58; Prince George's County Com'rs v. President, etc., of Village of Blad- ensburg,- 51 Md. 465 ; BERLIN v. GORHAM, 34 N. H. 266, Cooley, Cas. Mun. Corp. 15; Blessing v. City of Galveston, 42 Tex. 641; State V. Haines, 35 Or. 379, 58 Pac. 39. 35 That such a question is not a judicial one, se^ People ex rel. Shumway v. Bennett, 29 Mich. 451, 18 Am. Rep. 107. See, also, STATE V. SIMONS, 32 Minn. 540, 21 N. W. 750, Cooley, Cas. Mon. Corp. 12. And see generally, as to delegation of power, ante, § 9. 3 8 Rumsey v. People, 19 N. T. 41; Jameson v. People ex rel. Net- tleton, 16 111. 257, 63 Am. Dec. 304 ; People v. Maynard, 15 Mich. ,463. 38 CREATION OP MUNICIPAL COEPOEATIONS (Cll. 2 )^It must be conceded, however, that the arbitrary creation of a municipality in any community, regardless of the will of the inhabitants, though within the competency of the sovereign legislative power, is antagonistic to the republican spirit and repugnant to the principles of democracy.^^ In some states, however, this power of creating involuntary municipal corporations does not exist in the Legislature. This •is true of Ohio and Massachusetts, where there are constitu- tional provisions requiring the popular consent to the act of the Legislature before the corporation can come into existence. Many other states have embodied similar provisions in their Constitutions, and thus retained for the people of the towns the right of determining whether it is best for them to be in- corporated, rather than submit this question to the legislative will. But where this constitutional provision is not found for the protection of the local communities, the will of the Legis- lature is supreme in the creation, alteration, and termination of municipal corporations.^* LEGISLATIVE POWER— HOW EXERCISED 12. The Legislature, unless specially directed or limited by the Constitution, may, in its discretion, create mu- nicipal corporations (a) By a special charter ; (b) By general legislation authorizing the organization of municipal corporations by the people on compli- ance with certain prescribed conditions ; s^ Cooley, Const. Lim. (7tli Ed.) 166. S8 Thomas v. Richmond, 12 Wall. (U. S.) 356, 20 L. Ed. 4o3 ; De- marest v. Mayor, etc., of City of New York, 74 N. Y. 161; City of Lafayette v. Jenners, 10 Ind. 70 ; State v. Town of Tipton, 109 Ind. 73, 9 N. E. 704-, President, etc., of City of Paterson v. Society for Establishing Useful Manufactures, 24 N. J. Law, 385; BERLIN v. GORHAM, 34 N. H. 266, Cooley, Cas. Mun. Corp. 15; State ex rel. Hostetter v. Holden, 19 Neb. 249, 27 N. W. 120 ; Cheaney v. Hooser, 9 B. Mon. (Ky.) 330; City of St. Louis v. Russell, 9 Mo. 508; City of St. Louis V. Allen, 13 Mo. 400. § 12) LEGISLATIVE POWER — HOW EXERCISED 39 (c) By general legislation authorizing certain municipal- ities to reorganize by framing and adopting their own charters. The power vested in the Legislature to create municipal corporations may be exercised, either by a special act creating the municipality, and declaring its purpose, powers, rights, and functions, or by a general law authorizing the creation of municipal corporations by associations of individuals on their compliance with certain forms, requisites, and conditions precedent. Creation by Special Act The former method was the one in general use in this coun- try during the last century, and, indeed, is quite commonly em- ployed at present. It is not uncommon, when a community, desires a charter granting peculiar corporate privileges, or when a Legislature thinks that a community should exercise corporate powers of a peculiar character or tinder special con- ditions, that a special act, called a "charter," is enacted for such community.'" This is especially true in regard to many of the larger cities, which exist under elaborate charters, specifying the franchises, privileges, and powers of the municipality, the various depart- ments and officers thereof, the duties and powers of each, and, indeed, all other things supposed to be necessary to the well- being of the corporate community which can be enacted into a general law. This charter is the constitution of the municipal- ity,*" which under it may enact by-laws or ordinances not inconsistent with it or with the law of the land. This or- ganic act generally specifies as corporators the names of a por- tion of the persons thus incorporated, and of the provisional officers of the municipality to hold the offices and exercise their SB Burke v. Jeffries, 20 Iowa, 145. 40Cooley, Const. Lim. (Tib Ed.) pp. 265, 266; Piatt v. City and County of San Francisco, 158 Cal. 74, 110 Pac. 304. And see MT. PLEASANT V. BECKWITH, 100 U. S. 514, 25 L. Ed. 699, Cooley, Cas. Mun. Corp. 74. 40 CREATION OF MUNICIPAL CORPORATIONS (Ch. 2 duties until the time fixed therein for a popular election. In those states wherein by Constitution it is necessary for the people to request or give assent to incorporation, such an act is nugatory until ratified, and the corporation remains in abey- ance until such action was taken.*^ If never taken, of course, the corporation never comes into existence. But in the great majority of the states no popular request or ratification is pro- vided for by Constitution, and the enactment of the law creates the corporation, and the authorized persons may proceed at once to the exercise of the corporate functions.*^ Two methods of creation by special act are in vogue. Gen- erally the Legislature, assuming the initiative, enacts the law by which the municipality is created and organized.** In this instance the act does not become operative as a law until all the constitutional requirements as to legislation have been complied with, including publication of the act.** By the second method the community first formulates its charter, which is then submitted to the Legislature for adop- tion or rejection as a whole.*' In this instance a formal act of legislation is not necessary, but a resolution of approval is sufficient.** Same — Constitutional Provision for Acceptance In some states it is provided by the Constitution that no community shall be erected into a municipal corporation with- out the assent of a majority of the qualified voters, expressed in a public election held for that purpose. In these states the Legislatures usually refuse to take action until an election has 41 state V. Haines, 35 Or. 379, 58 Pac. 39. 42 People V. City of Butte, 4 Mont. 174, 1 Pac. 414, 47 Am. Rep. 346 ; People V. Morris, 13 Wend. (N. Y.) 325 ; Warren v. Mayor and Alder- men of Charlestown, 2 Gray (Mass.) 84; BERLIN v. GORHAM, 34 N. H. 266, Cooley, Cas. Mun. Corp. 15. See, also, cases cited in note 34, p. 37. 43 Clark V. City of Janesville, 10 Wis. 136. 44 Clark V. City of Janesville, 10 Wis. 136. 46 Brooks v. Fischer, 79 Oal. 173, 21 Pac. 652, 4 L. R. A. 429. 48 Brooks V. Fischer, 79 Cal. 173, 21 Pac. 652, 4 L. R. A. 429. § 12) LEGISLATIVE POWER — HOW EXERCISED 41 been held and the popular choice expressed; but in some in- stances the organic act has been passed and popular assent giv- en to the incorporation afterwards.*' If the charter is grant- ed before the election, it may contain a provision that it shall not be effective until the people shall have given their assent to the incorporation. Constitutional Inhibition of Creation by Special Law In some states the Constitution ' provides that no corpora- tions shall be created by special law, and in these the question has arisen whether this inhibition includes municipal corpora- tions. On this point the decisions are not uniform. The language employed in the various Constitutions is not identical, though the pivotal question in each case seems to be whether the general term "corporation" includes municipal corpora- tions. In New York, Ohio, and Nebraska, the decisions are to the effect that the word "corporation" includes municipal corporations, as well as private.** On the other hand, in New Jersey, Rhode Island, and Tennessee, the holding is to the con- trary." But, whatever view may be taken of the general provision forbidding the creation of corporations by special act, the question as to the creatioii of Municipal corporations in that manner is determined in most states by an express provision in the Constitution forbidding the organization of municipal corporations except by general laws."* In these states no dis- 47 President, etc., of City of Paterson v. Society for Estatlishing Useful Manufactures, 24 N. J. Law, 385 ; " People ex rel. Caldwell v. Reynolds, 10 111. (5 GUman) 1 ; Call v. Chadbourne, 46 Me. 206. 48 Purdy V. People, 4 Hill, 384; State v. Pugh, 43 Ohio St. 98, 1 N. E. 439 ; Dundy v. Board of Com'rs of Richardson County, 8 Neb. 508, 1 N. W. 565; School Dist. No. 56 v. St. Joseph F. & M. Ins.- Co., 103 U. S. 707, 26 L. Ed. 601; In re Corporate Powers of City of Council Grove, 20 Kan. 619. 4 9 Pell v. Mayor, etc., of City of Newark, 40 N. J. Law, 71, 29 Am. Rep. 266; State v. District of Narragansett, 16 R. I. 424, 16 Atl. 901, 3 L. R. A. 295; Luehrman v. Taxing District of Shelby, 2 Lea (Tenn.) 425 ; Williams v. Nashville, 89 Tenn. 487, 15 S. W. 364. 60 See, for example, Const. Minn, art 4, § 33; Const. N. D. 1889, 42 CREATION OF MUNICIPAL COEPOKATIONS (Ch. 2 cretion is left to the Legislature as to the manner in which this important function shall be performed. The only method whereby it can discharge its duty is general legislation. Creation by General Laws The general laws enacted in the various states relating to the organization of municipal corporations, though in the same general form, vary greatly as to the details. Generally speak- ing, these acts prescribe the conditions upon which communi- ties may become incorporated as villages, towns, or cities, and direct what steps- must be taken to bring about the incorpora- tion. Ordinarily the provisions of such acts are that, when- ever the people residing within the boundaries containing a certain number of acres or square miles wish to become in- corporated, they shall present to the court, or other tribunal authorized to act in the matter, a petition, signed by a speci- fied number of the qualified electors residing within such tract,°^ which petition should show the boundaries of the ter- ritory proposed to be incorporated °^ and should be accom- § 130; Const. Mich. 1909, art. 8, §§ 20, 21; Const. Pa. art. 3, § 7; Const Wis. amend. 4, § 31; Const. Ark. art. 12, §§ 2, 3. Similar pro- visions are found in the Constitutions of California, Illinois, Indi- ana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Ne- braska, New Jersey, Ohio, South Carolina, South Dakota, Tennes- see, Utah, Virginia, Washington, West Virginia, and Wyoming. 51 Page V. Board of Supervisors, 85 Cal. 50, 24 Pac. 607; People ex rel. Boardman v. Town of Linden, 107 Cal. 94, 40 Pac. 115; State ex rel. Lee v. Jenkins, 25 Mo. App. 484; West End v. State, 138 Ala. 295, 36 South. 423 ; People ex rel. Saunier v. ' Stratton, 33 Colo. 464, 81 Pac. 245 ; State ex rel. Sutton v. Wiethaupt, 150 Mo. App. 54, 129 S. W. 768. The persons signing such petition must be actual residents of the territory proposed to 'be incorporated, State ex rel. Loy v. Mote, 48 Neb. 683, 67 N. W. 810 ; or taxpayers, State ex rel. Lee v. Jenkins, 25 Mo. App. 484; or freeholders, In re Pine Hill (Co. Ct.) 33 N. X. Supp. 181. It has, however, been held in Idaho (Village of Ilo v. Ramey, 18 Idaho, 642, 112 Pac. 126) that a resi- dent and taxpayer of the county, though not of the territory to be incorporated, may appeal from a decision of the board of commis- sioners granting the petition if they believe the incorporation preju- dicial to public interest. 6 2 State ex rel. Beasley v. Young, 61 Mo. App. 494; City of Ward- ner v. Pelkes, 8 Idaho, 333, 69 Pac. 64. § 12) LEGISLATIVE POWER — HOW EXERCISED 43 panied by a map or plat of such territory." Notice of the pendency of the proceedings should be given ; °* and if, upon a hearing of the application," the court or board find that the requirements of the law have been complied with, it may enter an order declaring the community incorporated.^" or, if an election is necessary, may submit the question to the quali- fied voters at the next general election, or a special election called for that purpose."' The final step is the promulgation of the order of the court or other tribunal,'^' or the proclama- tion of the result of the election, or the filing of the certificate B 3 People ex rel. v. New, 214 111. 287, 73 N. E. 362; State ex rel. Osborn v. Mitchell, 22 Ohio Cir. Ct. R. 208; State ex rel. Perrin v. floard, 94 Tex. 527, 62 S. W. 1054. 6* People V. City of Riverside, 70 Cal. 461, 11 Pac. 759; State v. Oakland, 69 Kan. 784, 77 Pac. 694; State v. Frost, 103 Tenn. 685, 54 S. W. 986 ; State v. Town of Winter Park, 25 Fla. 371, 5 South. S18; People ex rel. Shumway ■«. Bennett, 29 Mich. 451, 18 Am. Rep. 107. But notice is not necessary unless required by statute. Stem- bel V. Bell, 161 Ind. 323, 68 N. E. 589. 65 Huff V. Preuitt (Tex. Civ. App.) 53 S. W. 844. As to the neces- sity for a hearing, see the statutes of the various states. 6 6 state ex inf. Crow v. Fleming, 147 Mo. 1, 44 S. W. 758; State ex rel. Jackson v. Mansfleld, 99 Mo. App. 146, 72 S. W. 471; In re Alliance Borough, 19 Pa. Super. Ct. 178; People ex rel. Russell v. Loyalton, 147 Cal. 774, 82 Pac. 620; State v. Bilby, 60 Kan. 130, 55 Pac. 843; Commonwealth Real Estate Co. v. City of South Omaha, 78 Neb. 368, 110 N. W. 1007. The decision of the court or board designated to pass on the ques- tion of incorporation is generally held to be final and not subject to review. Hall v. De Armond, 46 Mo. App. 596; Campbell y. Wain- right, 50 N. J. Law, 555, 14 Atl. 603 ; In re Borough of Taylor, 160 Pa. 475, 28 Atl. 934; In re Town of Union Mines, 39 W. Va. 179, 19 S. E. 398; Borchard v. Board of Sup'rs of Ventura County, 144 Cal. 10, 77 Pac. 708 ; Word v. Schow, 29 Tex. Civ. App. 120, 68 S. W. 192. But see Harris v. Millege, 151 Ind. 70, 51 N. E. 102. B 7 State ex re^. Brown v. Town of Westport, 116 Mo. 582, 22 S. W. 888; Vernon v. Board of Supervisors of San Bernardino Coun- ty, 142 Cal. 513, 76 Pac. 253; Borchard v. Board of Supervisors of Ventura County, 144 Cal. 10, 77 Pac. 708; State v. Council, 106 Iowa, 731, 77 N. W. 474; Thompson v. State, 23 Tex. Civ. App. 370, 56 S. W. 603. B8 People ex rel. Beasley v. Town of Sausalito, 106 Cal. 500, 39 Pac. 937; People ex rel. Boardman v. Town of Linden, 107 Gal. 94, 40 Pac. 115; State v. Peterson (Tex. Civ. App.) 29 S. W. 415. 4.4 CREATION OF MUNICIPAL CORPORATIONS (Ch. 2 of election by the officer designated for that purpose.'* The requirements of the statute having been complied with, the organization of the municipality becomes complete when the officers thereof are elected.*" Self -Chartered Cities In a number of states, constitutional provisions confer on municipalities of certain designated grades the power of fram- ing their own charters. Such provisions are found in the Constitutions of California,*^ Colorado,*" Minnesota,*^ Mis- souri,** Oklahoma,*" Oregon,** and Washington.*' While these provisions differ somewhat in detail, the general plan is well illustrated by the provisions of the Minnesota Constitu- tion and statutes. In that state the judges of the district court of the district in which the village or city is situated, on their own motion, or on petition signed by 10 per cent, of the quali- fied voters as shown by the returns of the last election, may appoint a board of fifteen freeholders, who shall hold office for four years, to frame a charter for the new corporation. Within six months the board shall deliver to the chief execu- tive of the village or city a draft of the proposed charter, signed by a majority of the members of the board. This pro- posed charter is submitted to the people for ratification at any general or special election, and four-sevenths of the legal votes cast at such election are necessary to ratify. If the vote is in favor of the ratification, the charter takes effect thirty days after the election.** "» See the statutes of the various states. And see Dowle v. Chica- go, W. & N. S. R. Co., 214 111. 49, 73 N. B. 354. 80 Coles County v. Allison, 23 111. 437; State ex rel. Jackson Tp. v. Arnold, 38 Ind. 41. ' 81 Const, art. 10, §§■ 6-8% (cities of more than 3,500 population). 6 2 Const 1902, art. 20. 83 Const, art. 4, § 36 as amended 1898 (all villages and cities). 84 Const. 1875, art. 9, §§ 16, 17 (cities of more than 100,000 pop- ulation). 8B Const, art. 18, § 3a. 88 Const, art. 11, § 2. 87 Const, art. 11, § 10 (cities of 20,000 population or more). «8 Const, art. 4, § 36; Rev. Laws 1905, §§ 746-755. § 13) TEKKITOEY AND POPULATION 45 The charter thus framed must, of course, be in harmony with the Constitution and laws of the state; but this does not prevent the adoption of charter provisions on any subject ap- propriate to the orderly conduct pf municipal affairs, though they may diifer in detail from existing general law. The lim- itation simply forbids the adoption of provisions contrary to the public policy of the state as declared by the general law.*" Effect of General Law on Special Charters General laws for the incorporation of municipalities are, of course, usually prospective in their operation, and do not ap- ply to corporations already organized under special charters.'" Municipalities organized under special charters may usually, however, elect to surrender their special charters and rein- corporate under the general law. TERRITORY AND POPULATION 13. To entitle a community to be incorporated as a town or village under the general law, it is generally re- quired that the territory to be included therein shall consist of a platted portion, with a definite nucleus of population, and lands adjacent thereto. In most states the law also requires as a condition prece- dent to incorporation that the territory thus in- cluded shall contain a specified number of inhab- itants. In view of the principles already stated regarding the gen- eral power of the Legislature to create municipal corporations, it is obvious that, except in so far as it may be controlled by 6 9 STATE ex rel. ' GETCHELL v. O'CONNOR, 81 Minn. 79, 83 N. W. 498, Cooley, Gas. Mun. Corp. 16; Grant v. Berrisford, 94 Minn. 45, 101 N. W. 940. 70 Town of Deeorah v. BuUis, 25 Iowa, 12; Butler v. Walker, 98 Ala. 358, 13 South. 261, 39 Am. St. Rep. 61; Flynn v. Little Falls Electric & Water Co., 74 Minn. 180, 78 n1 W. 106; State v. Donovan, 89 Me. 448, 36 Atl. 982. But see Bowyer v. Camden, 50 N. J. Law, 87, 11 Atl. 137; Bullis v. City of Chicago, 235 111. 472, 85 N. E. 614. 46 CREATION OF MUNICIPAL CORPORATIONS (Ch. 2 constitutional provisions, the Legislature has absolute power to determine what bodies may be incorporated.'^^ Conse- quently, unless prohibited by the Constitution, the IvCgisla- ture may by special act incdrporate any inhabited district with- in the state, be it large or small.^^ But where incorporation by special act is forbidden, and provision is made for incor- poration under general law, the statute usually declares what area of territory and what population shall be necessary to entitle a community to incorporation as a municipality. Generally the laws provide for the incorporation of dis- tricts consisting of platted lands and lands adjacent or con- tiguous thereto. Such laws contemplate a district center or nucleus of population jon the platted lands, and that the lands adjacent thereto shall be lands that are essentially ur- ban or surburban in character.'^ The corporation cannot as a rule include large rural districts, not urban or suburban in character, and having no community of interest with the plat- ted portion of the territory.^* 71 Mattox V. State, 115 Ga. 212, 41 S. E. 709; People r. Draper, 15 N. T. 532; State ex rel. Town of Holland v. Lammers, 113 Wis. 398, 86 N. W. 677, 89 N. W. 501. See, also, ante, § 11. ^ 2 See cases cited in the previous note. 7 3 State ex rel. v. Minnetonka Village, 57 Minn. 526, 59 N. W. 972, 25 L. R. A. 755 ; State ex rel. Childs v. Village of Fridley Park, 61 Minn. 146, 63 N. W. 613; State ex rel. Hammond v. Dimond, 44 Neb. 154, 62 N. W. 498; State ex rel. Pond v. Clark, 75 Neb. 620, 106 N. W. 971 ; Judd v. State, 25 Tex. Civ. App. 418, 62 S. W. 543; State ex rel. Loy v. Mote, 48 Neb. 683, 67 N. W. 810. 71 Commonwealth Real Estate Co. v. City of South Omaha, 78 Neb. 368, 110 N. W. 1007; State ex rel. Douglas v. Holloway, 90 Minn. 271, 96 N. W. 40; STATE ex rel. YOUNG v. VILLAGE of GIL- BERT, 107 Minn. 364, 120 N. W. 528, Cooley, Cas. Mun. Corp. 20; State ex rel. Young v. Village of Harris, 102 'Mann. 340, 113 N: W. 887, 13 L. R. A. (N. S.) 533, 12 Ann. Cas. 260 ; State ex rel. White V. Small, 131 Mo. App. 470, 109 S. W. 1079; In re Borough of Lit- tle Meadows, 35 Pa. 335; In re Narbeth Borough, 16 Pa. Co. Ct. R. 32. But the fact that some of the lands included are rural in char- acter will not invalidate the whole proceedings. Stout v. St. Louis, I. M. & S. R. Co., 142 Mo. App. 1, 125 S. W. 230; McClay v. City of Lincoln, 32 Neb. 412, 49 N. W. 282 ; McClesky v. State ex rel. Cottrell, 4 Tex, Civ. App. 322, 23 S. W. 518. Whether the territory proposed § 13) TERRITORY AND POPULATION 47 It is true that the mere fact that some of the territory in- cluded consists of farming or agricultural lands is not of itself sufficient to invalidate the incorporation.'"' In determining whether territory adjacent to the platted tract may properly be incorporated with it, the final test is whether such territory is contiguous/" and whether it has such a natural connection with the platted tract and the people residing therein have such community of interest that the whole may be subjected to municipal government/' The only purpose is to avoid unit- ing in one corporation district centers of population widely separated by tracts of agricultural or wild land/* to be incorporated consists of lands proper to be incJuded therein may be decided by the court or board to which the petition is sub- mitted. In re Village of Blron, 146 Wis. 444, 131 N. W. 829; Peo- ple ex rel. Russell v. Town of Loyalton, 14T Cal. 774, 82 Pac. 620. But see STATE v. SIMONS, 32 Minn. 540, 21 N. W. 750, Cooley, Cas. Mun. Corp. 12. 7B Harris v. Martindale, 42 Ind. App. 633, 86 N. E. 494; Ferguson V. City of Snohomish, 8 Wash. 668, 36 Pac. 969, 24 L. R. A. 795; Levitt V. City of Wilson, 72 Kan. 160, 83 Pac. 397; State ex rel. White V. Small, 131 Mo. App. 470, 109 S. W. 1079 ; Indiana Imp. Co. V. Wagner, 138 Ind. 658, 38 N. E. 49; State ex rel. Patterson v. Mc- Reynolds, 61 Mo. 203; State v. Town of Baird, 79 Tex. 63, 15 S. W. 98; State ex rel. Scott v. Lichte, 226 Mo. 273, 126 S. W. 466; In re Borough of Blooming Valley, 56 Pa. 66. 7« Harris v. Martindale, 42 Ind. App. 633, 86 N. B. 494; State ex rel. Scott V. Lichte, 226 Mo. 273, 126 S. W. 466; Town of Enterprise V. State, 29 Fla. 128, 10 South. 740. ' 77 State ex rel. Simpson v. Village of Alice, 112 Minn. 330, 127 N. W. 1118. 78 Town of Enterprise v. State, 29 Fia. 128, 10 South. 740; State ex rel. v. Minnetonka Village, 57 Minn. 526, 59 N. W. 972, 25 L. R. A. 755; STATE ex rel. YOUNG v. VILLAGE of GILBERT, 107 Minn. 364, 120 N. W. 528, Cooley, Gas. Mun. Corp. 20; People ex rel. V. Lease, 248 111. 187, 93 N. E. 783. There cannot, of course, be two municipalities in the same terri- tory. State V. Town of Winter Park, 25 Fla. 371, 5 South. 818 ; Town of Enterprise v. State, 29 Fla. 128, 10 South. 740. But this rule does not prevent the state from organizing and maintaining county anrf municipal governments over the same territory, Kahn v. Sutro, 114 Cal. 316, 46 Pac. 87, 33 L. R. A. 620; and including municipal ter- ritory in a township, drainage district, or other quasi corporate boundary. People ex rel. v. Nibbe, 150 111. 269, 37 N. E. 217. 48 CEBATION OF MUNICIPAL COEPORATIONS (Ch. 2 The general law may, and often does, provide that the ter- ritory sought to be incorporated must contain not less than a specified number of inhabitants. Such provisions must, of course, be complied with in order that a valid corporation may be created.'" ASSENT TO INCORPORATION 14. Except in those states where the Constitution and stat- utes require popular assent to the creation of a municipality, it is not necessary that a special charter shall be assented to by the people. Where incorporation is under general law, popular as- sent to incorporation is usually required as a con- dition precedent thereto. It is a well-established doctrine with regard to private cor- porations that the charters thereof are contracts between the state and the corporation or corporators, and therefore not subject to alteration or revocation at the will of either party.*" They have been adopted by the mutual agreement of both par- ties, and the agreement of both is essential to their amendmeiit or repeal.^ But with municipal corporations the rule is dif- ferent.*'' .Since the municipality is created at the legislative discretion, and for the public welfare, as an instrumentality 78 In re Incorporation of Haines Mission, 3 Alaska, 588; Village of Ilo V. Ramey, 18 Idaho, 642, 112 Pac. 126; State v. Bilby, 60 Kan. 130, 55 Pac. 843; In re Village of Elba, 30 Hun (N. Y.) 548; State ex rel. Town of Holland v. Lammers, 113 Wis. 398, 86 N. W. 677, 89 N. W. 501. so Dartmouth College v. Woodward, 4 Wheat 518, 4 L. Ed. 629; Gary Library v. Bliss, 151 Mass. 364, 25 N. E. 92, 7 L. R. A. 765. 81 Clearwater v. Meredith, 1 Wall. (U. S.) 25, 17 L. Ed. 604. 82 East Hartford v. Hartford Bridge'Co., 10 How. (U. S.) 511, 13 *L. Ed. 518; State v. Kolsem, 130 Ind. 434, 29 N. E. 595, 14 L. R. A. 566 ; Inhabitants of North Yarmouth v. Skilllngs, 45 Me. 133, 71 Am. Dec. 530; Smith v. Westcott, 17 R. I. 366, 22 Atl. 280, 13 L,. R. A. 217; Meriwether v. Garrett, 102 U. S. 472, 26 L. Ed. 197; Broughton V. Pensacola, 93 U. S. 266, 23 L. Ed. 896; Smith, Mun. Corp. §§ 60, 78. § 14) ASSENT TO INCOEPOEATION 49 of government, it is not essential that the inhabitants or resi- dents of the municipal boundaries shall give consent to the charter, as is required in the case of private corporations.*^ In the case of special charters, their constitutional enactment by the Legislature creates the corporation ; '* and, in states where the Constitution does not forbid, such corporations may be created whenever and wherever the Legislature shall deem best, regardless of the local popular wish.^ It is true that a refusal of the people to recognize the in- corporation or to organize- thereunder might, if unanimously persisted in, result in making the statute a dead letter ; but the act of even a small minority in organizing the corporation and setting the municipal machinery in motion would revive the statute, inspire the dormant charter, and erect the mu- nicipality into a valid, existing corporation.*' It would then become, as was intended, an active agent and- instrun^entality of the government, with the right to compel respect and obedi- ence from the dissenting majority of members, however pre- ponderant they might be in numbers or influence." 83 People ex rel. v. City of Butte, 4 Mont. 174, 1 Pac. 414, 47 Am. Rep. 346; People ,v. Morris, 13 Wend. (N. Y.) 325; Inhabitants of Gorham v. Inhabitants of Springfield, 21 Me. 58 ; Berlin v. Gorham, 34 N. H. 266, Cooley, Gas. Mun. Corp. 15; Zabriskie v. Cleveland, C. & C. R. Co., 23 How. (U. SI) 381, 16 L. Ed. 488; State v. Curran, 12 Ark. 321 ; Warren v. Mayor and Aldermen of Charlestown, 2"' Gray (Mass.) 84; Coles v. Madison County, 1 111. (Breese) 154, 12 Am. Dec. 161; Morford v. Unger, 8 Iowa, 82; Taylor v. Commission- ers of Town of Newberne, 55 N. C. 141, 64 Am. Dec. 566; State ex rel. Fremont, B. & M. V. R. Co. v. Babcock, 25 Neb. 709, 41 N. W. 654. 8* SMITH V. CRUTCHER, 92 Ky. 586, 18 S. W. 521, Cooley, Cas. Mun. Corp. 24. 8 See cases cited in preceding notes. And see ante, § 11. 8 8 President, etc., of City of Paterson v. Society for Establishing Useful Manufactures, 24 N. J. Law, 385 ; Muscatine Turn Vereln v. Funck, ISIowa, 469; Inhabitants of Gorham v. Inhabitants of Spring- field, 21 Me. 58 ; People ex rel. v. City of Butte, 4 Mont. 174, 1 Pac. 414, 47 Am. Rep. 346. See, contra, Lea v. Hernandez, 10 Tex. 137. 87 State V. Canterbury, 28 N. H. 195; "Warren v. Mayor and Alder- COOL.MUN.CORP. — 4 50 CEBATION OP MUNICIPAL CORPORATIONS (Ch. 2 Grant Conditional upon Acceptance Yet it is competent for the Legislature to make the grant of charter powers conditional upon their acceptance by a major- ity of the inhabitants. A clause requiring that, before the charter shall go into operation, the people of the proposed municipality shall, by public election or otherwise, give assent to its provisions by formal acceptance of the same, is not ground for impeaching the act as an unwarranted delegation of legislative power.',^ Such a clause has been repeatedly de- clared by our courts to be a valid legislative condition preced- ent to the organization of a municipal corporation, with the result that the charter is impotent and the municipality non- existent until the people shall call it into being.^' Moreover, under constitutional authorization to delegate legislative pow- er for such purpose, special charters may be granted to mu' nicipal corporations by courts, commissioners, or boards there- unto authorized by act of the General Assembly."" Delegated Powers A charter thus obtained from a sublegislature in all material particulars resembles the special charter of legislative enact- ment in form and effect. The court or board may be thus « men of Charlestown, 2 Gray (Mass.) 84; People v. President, etc., of Manhattan Co., 9 Wend. (N. Y.) 351. - 88 Bull V. Read, 13 Grat. (Va.) 78 ; State v. Noyes, 30 N. H. 2T9 ; People ex rel. Wilson v. Salomon, 51 111. 37; Mayor, etc., of City of Brunswick v. Finney, 54 Ga. 317 ; People ex rel. Graves v. McFad- den, 81 Cal. 489, 22 Pac. 851, 15 Am. St. Rep. 66. When the charter of a municipal corporation provides for suhmission to the people for acceptance, such acceptance is prima facie shown by a subsequent act of the Legislature recognizing the charter as in force. State v. Tosney, 26 Minn. 262, 3 N. W. 345. 8 9 Lafayette, M. & B. R. Co. v. Geiger, 34 Ind. 185 ; Foote v. City of Cincinnati, 11 Ohio, 408, 38 Am. Dec. 737 ; Smith v. McCarthy, 56 Pa. 359; State ex rel. Dome v. Wilcox, 45 Mo. 458; People ex rel. Caldwell v. Reynolds, 10 111. (5 Gilman) 1; People v. Gunn, 85 Cal. 238, 24 Pac. 718. so Ford V. Town of North Des Moines, 80 Iowa, 626, 45 N. W. 1031 ; People V. Fleming, 10 Colo. 553, 16 Pac. 298 ; State v. Leatherman, 38 Ark. 81 ; STATE v. SIMONS, 32 Minn. 540, 21 N. W. 750, Cooley, Cas. Mun. Corp. 12. § 14) &SSENT TO INCOBPOEATION 51 vested with plenary legislative discretion to specify and enu- merate the powers to be conferred by the charter, and fix the boundaries of the municipality. The charter in such case will usually take the form of a judicial decree or board ordinance, and will be in all particulars subject to the general rules and doctrines of the law as applied to special legislative charters.^ ^ Acceptance Implied Unless the acceptance of the special charter is required to be manifested in some particular way, such acceptance may be implied, as from acts done under it.^^ Particular Cases of Approval and Acceptance Certain provisions contained in the charter, such as the pow- er to incur bonded indebtedness, may be made dependent on the consent of the people."' So, too, it is competent for the Legislature to make the continuance of the municipal organiza- tion dependent on the continued public approval of the citi- zens, and to authorize them by public election to terminate the corporation at will.°* General Law — Incorporation upon Popular Initiative Where the incorporation is under general law, the popular %^ssOT[t is usually, if not invariably, required, as an essentia] feature of the incorporation, and a condition precedent there- to. In such cases the incorporation is effected upon popular^ initiative, and so, practically rather than formally, there is an approval of the charter of the municipality. It is to be re- membered, however, that even in those states where general laws for creating municipal corporations exist the Legislature »i Ashley v. Town of Calliope, 71 Iowa, 466, 32 N. W. 458; State V. Goowin, 69 Tex. 55, 5 S. W. 678. »2 City of Lafayette v. Jenners, 10 Ind. 70 ; Taylor v. Commis- sioners of Town of Newberne, 55 N. G. 141, 64 Am. Dec. 566 ; Bless- ing V. City of Galveston, 42 Tejc. 641. 93 State V. City of Waxahachie, 81 Tex. 628, 17 S. W. 348; Bank of Rome v. Village of Rome, 18 N. Y. 38 ; People ex rel. Blanding v. Burr, 13 Cal. 343; Weaver v. Cherry, 8 Ohio St. 564. 9* Blauvelt v. Village of Nyack, 9 Hun. (N. Y.) 153 ; State ex rel. Alsop V. Husband, 26 Ind. 308. 52 CREATION OF MUNICIPAL CORPORATIONS (Oh. 2 possesses inherent power, unless forbidden by the Constitu- tion to ' incorporate by special act, and to this no popular as- sent is required.'" CORPORATIONS BY IMPLICATION OR PRE- SCRIPTION 15. BY IMPLICATION.— A corporation may be created by implication as well as by positive expression of the statute, provided there is a clear manifestation of legislative intention to constitute a corporation, or to invest it with corporate powers and franchis- es, or to recognize an existing body as having the essential franchises and powers of a corporation. BY PRESCRIPTION.— The existence of a municipal corporation will be presumed, where it is shown that the community has claimed and exercised cor- porate functions, with the knowledge and acquies- cence of the Legislature, and without interruption or objection, for a period long enough to afford ti- tle by prescription. In the English royal charters, the words usually employed to constitute a corporation were, "Creamus, erigimus, fundamus, incorporamus" °* ("We create, erect, found, incorporate"), though words of similar import and effect were held sufficient at common law.°^ For instance, a royal charter to the men of Dale to annually elect a mayor and commonalty, was held sufficient to incorporate them.'* So a grant to the inhabitants of a town to be "a free borough," without any special words of creation or incorporation, is sufficient." The omission of 5 See ante, § 11. 86 i b1. Comm. 474. 97 1 Bl. Comm. 474. See, also, Stebbins v. Jennings, 10 Pick. (Mass.) 172 ; Dean v. Davis, 51 Gal. 406 ; Society for Propagation of Gospel V. Pawlet, 4 Pet. (U. S.) 480, 7 L. Ed. 927. 88 21 Edw. IV, 56 ; Dill. Mun. Corp. (4tli Ed.) § 42. 09 Dill. Mun. Corp. (4th Ed.) § 42. § 15) IMPLICATION OE PEESCRIPTION 53 the words "to plead and be impleaded," or to "have a seal," or to specifically mention the power to make by-laws, would not be fatal.^ The omission of the name would not be a fatal defect, provided that name could be ascertained or inferred from the terms of the act.^ Certain powers and privileges are essential to the existence of a body corporate, such as perpet- ual succession, right -to contract, hold property, and to sue and be sued, etc.; and if the act either expresses these things, or permits them to be fairly implied, the courts will usually sus- tain the corporation. The rules of the common law in regard to corporations are of general application in this country, and wherever powers and privileges existing only under incorporation are conferred upon a body of persons, or upon the residents or inhabitants of a certain town or district, a corporation will be implied, to the end that the grant may not fail. It has often been de- clared to be a question of legislative intent, to be shown either by expression or by implication. = A leading case in Massachusetts will illustrate the judicial inclination to maintain and support wholesome entities, rather than cause a failure of legislative intention. The inhabitants of the several school districts were empowered by statute at a regular meeting to raise money to erect, repair, or purchase a schoolhouse, and do other things necessary to provide a place for the public school — ^the majority having power to control. After much discussion and many adjournments, the Supreme Court finally settled upon the opinion that, though not ex- pressly incorporated, the inhabitants thereof possessed suffi- cient corporate powers to maintain an action undei* a contract 1 Dill. Mun. Corp. § 42 ; Conservators v. Ash, 10 Barn. & C. 349. ■ 2 Dill. Mun. Corp. (4tli Ed.) § 42; Trustees of Ministerial & School Fund in Levant v. Parks, 10 Me. 441; School Com'rs v. Dean, 2 Stew. & P. (Ala.) 190. 3 Bow V. AUenstown, 34 N. H. 351, 69 Am. Dec. 489; Inhabitants of Fourth School Dist. in Rumford v. Wood, 13 Mass. 193 ; Mahoney v. Bank of State, 4 Ark. 620 ; Thomas v. Dakin, 22 Wend. (N. Y.) 9, 84 54 CREATION OP MUNICIPAL COEPOEATIONS (Ch. 2 to build a schoolhouse and to make to them a lease of land.* This case carries the doctrine of implied corporation to its farthest limit ; but it will be observed that the corporation here implied and recognized was not a municipal, but merely a quasi, corporation, and of the very lowest order of corporate life. That incorporation may be implied from official recognition of a municipality is declared in many cases."" Thus it has been held that incorporation must be implied where the Legis- lature has recognized a place or a municipality by annexing other municipal territory to it,* by conferring additional pow- ers upon it,^ by granting to it land for a town commons,* by empowering it to issue municipal bonds," or by enacting laws relating to elections in the municipality.^" Existence by Prescription In England, notwithstanding the doctrine that a corporation must have the authority of royal assent or act of Parliament, municipalities existed without either of these charters. ^^ They had existed from time immemorial, and usually their origin is to be found in tradition or romance. Their usages and customs were the only evidence of their franchises, priv- ileges, and powers. These municipalities were divided into two classes — the one known as "common-law corporations," and the other as "cor- * Inhabitants of Fourth School Dist. In Eumford v. Wood, 13 Mass. 193. 5 State V. Leatherman, 38 Ark. 81 ; People ex rel. Gridley v. Farn- ham, 35 111. 562 ; State v. Tosney, 26 Minn. 262, 3 N. W. 345 ; Mat- tox V. State, 115 Ga. 212, 41 S. E. 709 ; State v. Young, 3 Kan. 445. 8 Bow v^Uenstown, 34 N. H. 351, 69 Am. Dec. 489. 1 Broking v. Van Valen, 56 N. J. Law, 85, 27 Atl. 1070. s Commissioners of Town of Bath v. Boyd, 23 N. O. 194. 9 Jameson v. People ex rel. Nettleton, 16 111. 257, 63 Am. Dee. 304. 10 gtate ex rel. Young v. Village of Harris, 102 Minn. 340, 113 N. W. 887, 13 L. R. A. (N. S.) 533, 12 Ann. Gas. 260. 11 This is notahly true of the great corporation of London, the ex- istence of which antedates the Norman Conquest; but its corporate character has been recognized repeatedly in royal charters or grants of powers and in acts of Parliament. § 15) IMPLICATION OR PRESCRIPTION 55 porations by prescription" ; the former existing by immemo- rial usage,^^ and the latter upon a royal charter presumed to have been granted and to have been lost or destroyed.^' In the New England states it has been frequently ruled that, where no charter or act of incorporation for a town can be found, the corporation may be proved by reputation showing that the town has claimed and exercised corporate functions with the knowledge and acquiescence of the Legislature, a'nd without interruption or objection, for a period long enough to afford a title by prescription. ^^^ So in New York with regard to a school district.^ ° Likewise in the newer states of Indiana,^ ° Illinois, Wisconsin,^' and Minnesota ^' the courts have„applied the same doctrine to municipal corpora- tions; Illinois judges declaring municipal corporations to be favorites of the law, as created for the public good, and de- manded by the wants of society.^" It has been regarded as sufficient to show incorporation 12 Rex V. Mayor, etc., of Stratford on Avon, 14 East, 348; Mayor of Hull V. Horner, Cowp. 104. 13 Cooley, Const. Lim. (6tli Ed.) p. 236; Jameson v. People ex rel. Nettleton, 16 111. 257, 63 Am. Dec. 304 ; Back v. Carpenter, 29 Kan. 349. 1* Inhabitants of Stockbridge v. Inhabitants of West Stockbridge, 12 Mass. 400 ; Bow v. AUenstown, 34 N. H. -351, 69 Am. Dec. 489 ; Town of New Boston v. Town of Dunbarton, 12 N. H. 409 ; Trott v. Warren, 11 Me. 227; Half-way River School Dist v. Bradley, 54 Conn. 74, 5 Atl. 861. In Dillingham v. Snow, 5 Mass. 547, reputa- tion was allowed to prevail because a large portion of the records had been destroyed by fire. See, also, Town of Londonderry v. Town of Andover, 28 Vt. 416 ; Broking v. Van Valen, 56 N. J. Law, So, 27 Atl. 1070; Lavelle v. Town of Julesburg, 49 Colo. 290, 112 Pac. 774. 15 Eobie V. Sedgwick, 35 Barb. (N. Y.) 319. 16 Pidgeon v. McCarthy, 82 Ind. 321, in which case a lot had been taxed by the city government of VIncennes for sixty years without question or objection, and this was held sufficient to show that the ■ lot was within the corporation limits. 17 Sherry v. Gilmore, 58 Wis. 324, 17 N. W. 252. 18 State ex rel. Young v. Village of Harris, 102 Minn. 340, 113 K. W. 887, 13 L. R. A. (N. S.) 533, 12 Ann. Cas. 260. 19 Jameson v. People ex rel. Nettleton, 16 111. 257, 63 Am. Dec. 304. 56 CREATION OF MUNICIPAL CORPORATIONS (Ch. 2 that the community has exercised the powers of a municipality for fifty years,^° thirty years," and even for twenty years.^^ In all such cases the question to be decided is not one of law, but one of fact, viz. : Has this body claiming to be a corpora- tion maintained an unbroken existence, and claimed to exer- cise corporate powers so long as to afford presumption of an original grant of corporate powers and franchises? Where this is found, it seems to be the rule of law to assume that the corporation has all the rights, powers, privileges, and franchises conferred by general law upon similar bodies.^' These cases are" perhaps sufficient in number to warrant us in saying that there may be in America a municipal corpora- tion other than that created by legislative enactment; but the; cases are so ievf in number where any resort to this old Eng- lish doctrine is necessary, and the question so unlikely to re- cur as to warrant passing from them without further notice. VALIDITY OF INCORPORATION— COMPLIANCE WITH CONDITIONS 16. Substantial compliance with the requirements of the general laws for creating municipal corporations is essential and sufficient. The creation of a legal body invested with functions of gov- ernment is too important to be passed over lightly. What- ever things, therefore, the Legislature has prescribed as pre- requisites for the erection of a municipality, which pertains 20 Town of New Boston v. Town of Dunbarton, 12 N. H. 409. 21 Inhabitants of Stockbridge v. Inhabitants of West Stockbridge,. J.2 Mass. 400. 22 Bow V. AUenstown, 34 N. H. 351, 69 Am. Dec. 489; State ex rel. Young V. Village of Harris, 102 Minn. 340, 113 N. W. 887, 13 L. R. A. (N. S.) 533, 12 Ann. Cas. 260. 2s Town of New Boston v. Town of Dunbarton, 15 N. H. 201 ; Bow V. AUenstown, 34 N. H. 351, 69 Am. Dec. 489 ; State v. Bunker, 59 Me. 366 ; State v. Leatberman, 38 Ark. 81 ; Cooley, Const. Lim. (6tli Ed.) 238. " % 17) VALIDITY — DE FACTO CORPORATIONS 57 to its essential features and powers, must receive from the people about to enter into it such measure of compliance as evinces deliberate consideration by them before entering upon this important undertaking of local self-government. That is to say, there must be a substantial compliance with the re- quirements of the laws relating to the creation and organiza- tion of municipal corporations.''* On the other hand, the interest of the citizens and of the public in an arm of the government is too great to allow little things to imperil its existence. Here applies the maxim, "De minimis non curat lex." tThe erection of a municipality is not academic, but political;* and so the courts apply, in cases chal- lenging the existence of the corporations, those larger rules of life and action which pertain to public affairs, and give sub- stantial justice. Failure to comply with provisions of the statute which are merely directory will not render the incor- poration invalid,'"' and a substantial compliance with the law is generally held sufficient.^' SAME— DE FACTO CORPORATIONS 17. Where a municipality is defective in some essential fea- ture of its organization, it may, nevertheless, be recognized as an existing corporation de facto. To constitute a municipal corporation de facto there must be: (a) A valid law authorizing incorporation; (b) An attempt in good faith to organize under it; (c) A colorable compliance with the law; (d) An assumption of corporate powers. From the considerations of public policy to which attention has been called in the preceding section there has arisen and *4 Town of Enterprise v. State, 29 Fla. 128, 10 South. 740. 2 6 Coles County v. Allison, 23 111. 437. See, also, People ex rel. Skelton v. City of Los Angeles, 133 Cal. 338, 65 Pac. 749. 28 Woods ex rel. Rodgers v. Henry, 55 Mo. 560 ; City of Omaha v. 58 CREATION OF MUNICIPAL COEPOKATIONS (Ch. 2 been recognized a class of municipal corporations known as corporations de facto. In a certain sense these might be called quasi corporations, but legally they are wholly unlike that ctass of corporations. They are complete existing corpora- tions, which are defective in some essential feature of their organization,^^ but whose right to continued existence may be impeached only by the state in a direct proceeding for that purpose.^* IThe judicial views of this class of corporations are as vari- ant as the social and political conditions of the states where, they are entertained.^ In most states it is apparently settled that, to constitute a corporation de facto, there must be (1) a valid law authorizing a corporation ; (2) an attempt in good faith to organize under it; (3) a colorable compliance with this law; (4) an assumption of corporate powers.^' It is, of course, fundamental that, if there is no law authorizing the creation of a municipality, any attempt to organize is void, and the resulting organization is not even a de facto corpora- City of South Omaba, 31 Neb. 378, 47 N. W. 1113 ; Borougb of Glen Ridge V. Stout, 58 N. J. Law, 598, 33 Atl. 858 ; SHAPLEIGH v. CITY OF SAN ANGELO, 167 U. S. 646, 17 Sup. Ct. 957, 42 L. Ed. 310, Cooley, Gas. Mun. Corp. 319 ; State ex rel. Wheeler v. Stuht, 52 Neb. 209, 71 N. W. 941. 27 Town of Constitution v. Chestnut Hill Cemetery Ass'n, 136 Ga. 778, 71 S. E. 1037 ; Laird y. City of De Soto (C. C.) 22 Fed. 421 ; Vil- lage of Arapahoe v. Albee, 24 Neb. 242, 38 N. W. 737, 8 Am. St. Rep. 202 ; City of Omaha v. City of South Omaha, 31 Neb. 378, 47 N. W. 1113; Borough of Glen Ridge v. Stout, 58 N. J. Law, 598, 33. Atl. 858 ; White v. City of Quanah (Tex. Civ. App.) 27 S. W. 839 ; SHAP- LEIGH V. CITY OP SAN ANGELO, 167 U. S. 646, 17 Sup. Ct. 957, 42 L. Ed. 310, Cooley, Cas. Mun. Corp. 319; Attorney General v. Town of Dover, 62 N. J. Law, 138, 41 Atl. 98. Any actual organiza- tion of a municipality in ostensible possession and actual exercise of municipal powers is a de facto corporation. City of Salem to Use of Roney v. Young, 142 Mo. App. 160, 125 S. W. 857. 28 See post, § 18. 2 9 Ward V. Gradin, 15 N. D. 649, 109 N. W. 57; Kansas Town & Land Co. v. City of Kensington, 6 Kan. App. 247, 51 Pac. 804 ; Gilkey V. Town of How, 105 Wis. 41, 81 N. W. 120, 49 L. R. A. 483 ; Board of Education of Flatwoods Dist. v. Berry, 62 W. Va. 433, 59 S. E. 169, 125 Am. St. Rep. 975. § 17) VALIDITT — DE FACTO CORPORATIONS 59 tion;'" and it has been held in a few instances that there cannot be even a de facto organization under a void act.'^ On the other hand, other courts,^^ more lenient towards this class of corporations, have declared that any statute, even though unconstitutional, is sufficient to authorize the creation of such a corporation; and if there has been an effort in good faith, and in reasonable compliance with its require- ments, to organize under it, there is a de facto corporation. In the midst of these widely divergent decisions, it is hazard- ous to attempt to state definitely the essentials of a corpora- tion de facto which will be applicable in all the states. A well-known writer on the law of corporations has given a clear view of the state of American, law on this subject: "Our decisions oscillate between two extreme views: (1) That, where a body of men act as a corporation in the ostensi- ble possession of corporate powers, it will be conclusively pre- sumed in all cases, except in a direct proceeding against them by the state to vacate their franchise, that they are incorpo- rated. (2) That the conditions named in statutes authorizing the organization of corporations are conditions precedent that must be strictly complied with, or the corporation does not exist, and that the want of compliance with any one condi- tion precedent may be shown by any one in a private litiga- tion with a pretended corporation, unless he has estopped himself by his conduct from challenging its corporate ex- istence, and frequently without reference to the question of estoppel." ^' The sound doctrine of the law, as usual in such cases, is not to be found at either one of these extremes, and 3 City of Guthrie v. Wylie, 6 Okl. 61, 55 Pae. 103. 31 Colton V. Rossi, 9 Cal. 595; Oswego Tp. v. Anderson, 44 Kan. 214, 24 Pac. 486. 3 2 Lang V. City of Bayonne, 74 N. J. Law, 455, 68 Atl. 90, 15 I^. R. A. (N. S.) 93, 122 Am. St. Rep. 391, 12 Ann. Cas. 961 ; Attorney General v. Town of Dover, 62 N. J. Law, 138, 41 Atl. 98; Speer v. Board of Oom'rs, 88 Fed. 749, 32 C. C. A. 101. 33 1 Thomp. Corp. § 495. 60 CREATION OP MUNICIPAL COEPORATIONS (Ch. 2 ultimately a general consensus of judicial opinion will doubt- less establish the law on safe middle ground, consistent with the rule of compliance stated in the preceding paragraph. SAME— HOW TESTED 18. The validity of a municipal corporation is not subject to private or collateral attack, but is subject to im- peachment only by the state in a direct proceeding for that purpose. This rule naturally results from the source and nature of municipal power. The state has created the municipality as an agency of government. It may terminate that existence at will.^* If the inhabitants of a ' certain boundary within the state limits are exercising municipal functions, that fact is, of course, known to the state; and whether that munici- pality has been erected upon a valid foundation is a matter of public interest, of which the state is the embodied repre- sentative. In the case, therefore, of an implied corporation, or a corporation de facto, the municipal character of its ex- istence and right to exist is a subject to be considered and determined by the state for the public, and that, too, by a direct proceeding having that object in view.'" 3* Girard v. Philadelphia, 7 Wall. (U. S.) 1, 19 li. Ed. 53; Haw- kins V. Intendant, etc., of Town of Jonesboro, 63 Ga. 527; State ex rel. Hernandez v. Flanders, 24 La. Ann. 57; tayton v. City of New Orleans, 12 La. Ann. 515; People ex rel. Attorney General v. Hill, 7 Gal. 97; Sedgwick County Com'rs v. Bailey, 11 Kan. 631 ; Vance V. City of Little Rock, 30 Ark. 435; City of San Francisco v. Cana- van, 42 Cal. 541 ; United States ex rel. Brown v. Memphis, 97 TJ. S. 284, 24 L. Ed. 937. 35 Tied. Mun. Corp. S 385; SHAPLEIGH v. CITY OF SAN ANGE- LO, 167 U. S. 646, 17 Sup. Ct. 957, 42 L. Ed. 310, Cooley, Cas. Mun. Corp. 319; Graham v. City of Greenville, 67 Tex. 62, 2 S. W. 742; Chicago, St. L. & N. O. R. Co. v. Town of Kentwood, 49 La. Ann. 931, 22 South. 192; Attorney General v. Town of Belleville, 81 N. J. Law, 200, 80 Atl. 116 ; Ex parte Keeling, 54 Tex. Cr. R. 118, 121 S. W. 605, 130 Am. St. Rep. 884; Lang v. City of Bayonne, 74 N. J. Law, 455, 68 Atl. 90, 15 L. R. A. (N. S.) 93, 122 Am. St. Rep. 391, 15i § 18) VALIDITY — HOW TESTED 61 The question as to the validity of the incorporatibn cannot be raised by a private person in a collateral proceeding/' as, for example, in a proceeding to test the validity of an or- dinance,*' or an action to recover on interest coupons on mu- nicipal bonds,** or in proceedin^gs to compel the payment of a judgment,*" or in proceedings relating to the levy and col- lection of taxes.*" Even the state has been held estopped from denying the Ann. Oas. 961 ; Board of Education of Flatwoods Dist. v. Berry, 62 W. Va. 433, 59 S. E. 169, 125 Am. St. Rep. 975; City of Carthage v. Burton, 51 Tex. Civ. App. 195, 111 S. W. 440. Quo warranto is the proper proceeding to test the validity of the corporation.. State ex inf. Crow v. Fleming, 147 Mo. 1, 44 S. W. 758; OSBORNE V. VILLAGE OF OAKLAND, 49 Neb. 340, 68 N. W. 506, Cooley, Cas. Mun. Corp. 347; Attorney General v. Town of Belleville, 81 N. J. Law, 200, 80 Atl. 116. S3 Mendenhall v. Burton, 42 Kan. 570, 22 Pac. 558; State v. Ful- ler, 96 Mo. 165, 9 S. W. 583; State v. Leatherman, 38 Ark. 81; Town of Henderson v. Davis, 106 N. C. 88, 11 S. E. 573; State v. Carr, 5 N. H. 367 ; Worley v. Harris, 82 Ind. 493 ; Society for Propagation of Gospel V. Pawlet, 4 Pet. (U. S.) 480, 7 L. Ed. 927; Town of Searcy V. Yarnell, 47 Ark. 269, 1 S. Wl. 819 ; Bird v. Perkins, 33 Mich. 28; People V. Maynard, 15 Mich. 463; Lanning v. Carpenter, 20 N. Y. 447; Rumsey v. People, 19 N. Y. 41; Jameson v. People ex rel. Net- tleton, 16 111. 257, 63 Am. Dec. 304; Swain v. Comstock, 18 Wis. 463 ; Willard v. Albertson, 23 Ind. App. 164, 53 N. E. 1077, 54 N. EL 403; Levitt V. City of Wilson, 72 Kan. 160, 83 Pac. 397; People v. Smith, 131 Mich. 70, 90 N. W. 666; Agner v. Commonwealth, 103 Va. 811, 48 S. E. 493; Ward v. Gradin, 15 N. D. 649, 109 N. W. 57; Ex parte Keen, 58 Tex. Cr. R. 279, 125 S. W. 401; Board of Education of Flatwoods Dlst. v. Berry, 62 W. Va. 433, 59 S. E. 169, 125 Am. St. Rep. 975 ; State v. Several Parcels of Land, 78 Neb. 703, 111 N. W. 601; Id., 80 Neb. 11, 113 N. W. 810. 37 Town of Decorah v. Gillls, 10 Iowa, 234; Inhabitants of Town of Fredericktown v. Fox, 84 Mo. 59; Town of Constitution v. Chest- nut Hill Cemetery Ass'n, 136 Ga. 778, 71 S. E. 1037. Or in habeas corpus for release from arrest under an ordinance. Ex parte Keel- ing, 54 Tex. Cr. R. 118, 121 S. W. 605, 130 Am. St Rep. 884. 88 ST. PAUL GASLIGHT CO. v. VILLAGEi OF SANDSTONE, 73 Minn. 225, 75 N. W. 1050, Cooley, Cas. Mun. Corp. 31. 39 Lee V. City of Thief River Falls, 82 Minn. 88, 84 N. W. 654. 40 Bateman v. Florida Commercial Co., 26 Fla. 423, 8 South. 51; Bird V. Perkins, 33 Micli. 28; McClay v. City of Lincoln, 32 Neb. 412, 49 N. W. 282; People ex rel. v. Bowman, 247 111. 276, 93 N. E. 244. 62 CREATION OF MUNICIPAL CORPORATIONS (Ch. 2 validity of the incorporation where the municipality has ex- isted and exercised corporate functions for a long time with the consent of the state; *^ and, whenever the question of the validity of incorporation is raised, there is a strong tendency by the courts, in recognition of the status quo, to uphold the validity and power of the municipality r*^ In other words, the courts, not only in the construction of statutes and con- tracts, but in the administration of affairs and determination of great public questions, recognize and respect the maxim, "Ut res magis valeat quam pereat." WHAT CONSTITUTES MUNICIPAL MEMBERSHIP 19. The persons residing vvithin the corporate limits are members of the municipal corporation. tThis is wholly unlike the rule and practice in private cor- porations. V Membership in a private corporation is always voluntary, and in a stock corporation is evidenced by the hold- ing of a certificate of a share or shares of the capital stock.*' In a municipal corporation it is otherwise. Every person re- 41 State ex rel. Young v. Village of Harris, 102 Minn. 340, 113 N. W. 887, 13 li. K. A. (N. S.) 533, 12 Ann. Cas. 260 ; People v. Board of Sup'rs of Gladwin County, 41 Mich. 647, 2 N. W. 904; City of St. Louis y. Sliields, 62 Mo. 247. In State v. Leatlierman, 38 Ark. 81, ^akin, J., said: "We are emboldened to declare in behalf of the public good, that the state herself may, by long acquiescence, and by the continued recognition through her officers, state and county, of a municipal corporation, be precluded from an information to deprive it of franchises long exercised In accordance with the gen- eral law." See, also. People v. Maynard, 15 Mich. 463; McCulloch V. State, 11 Ind. 424; Attorney General v. Joy, 55 Mich. 94, 20 N. \V. 806 ; Jameson v. People ex rel. Nettleton, 16 111. 257, 63 Am. Dec. 304; State ex rel. Sanche v. Webb, 110 Ala. 214, 20 South. 462. 42 People ex rel. Gridley v. Faruham, 35 111. 562; Jameson v. Peo- ple ex rel. Nettleton, supra; SMITH v. CRUTCHER, 92 Ky. 586, IS S. W. 521, Cooley, Cas. Mun. Corp. 24; State v. Young, 3 Kan. 445; Rains v. City of Oshkosh, 14 Wis. 372. 43 State ex rel. White v. Ferris, 42 Conn. 560; Upton v. Hans- brough, 3 Biss. 417, Fed. Cas'. No. 16,801. ' § 20) CLASSIFICATION OF MUNICIPALITIES 63 siding within the municipal boundaries, whether he will or not, is -a member of the corporation, subject to its lawful authority, and entitled to the privileges and immunities of membership, as well as liable to the burdens and liabilities thereof.** And persons who come within the corporate limits, though they are only passing through the city, are, so long as they remain within its boundaries, subject to all its police regulations, and bound to take notice of and obey the same.*,^ By the common law the members of the municipal corpora- tion were those only to whom the kijng chose to issue his let- ters patent (and their successors), usually a portion of the citi- zens. Nonresidents, however, were oft.en members. The in- tegral par^ of the corporation were the mayor, the aldermen, and the commonalty ; and the presence of all . these integral parts was essential to the validity of corporate action. The spirit of modern democracy has overcome all these exclusive practices and aristocratic ideas, in England as well as in America, and the inhabitants of the corporations are now the source of power, and the officers are their servants. CLASSIFICATION OF MUNICIPALITIES 20, For the purposes of legislation municipal corporations are usually divided into classes depending on pop- ulation, so that the interests of bodies having sim- ilarity of situation, circumstances, and require- ments may have those interests best subserved by similar legislation. ** People ex rel. Van Bokkelen v. Canaday, 73 N. C. 198, 21 Am. Rep. 465; Oakes v. Hill, 10 Pick. (Mass.) 333. 45 Heland v. City of Lowell, 3 Allen (Mass.) 407, 81 Am. Dec. 670; Mayor, etc., of City of Knoxville v. King, 7 Lea (Tenn.) 441; Bott v. Pratt, 33 Minn. 323, 23 N. W. 237, 53 Am. Rep. 47; Strauss v. Town of Pontiac, 40 111. 301; Village of Buffalo v. Webster, 10 Wend. (N. Y.) 99; Village of St. Jolinsbury v. Thompson, 59 Vt. 300, 9 Atl. 571, 59 Am. Rep. 731; Des Moines Gas Co. v. City of Des Moines, 44 Iowa, 505, 24 Am. Rep. 756. 64 CREATION OF MUNICIPAL CORPORATIONS (Gil. 2 As it is impracticable to enact general laws which can be beneficially applied to all the municipalities of the state, mu- nicipal corporations are usually divided into classes for the purposes of legislation, to the end that municipalities which are similar in situation and circumstances may have their re- quirements and interests best subserved by similar regula- tions.*' Such classification must be based on some rational difference of situation or condition,*' and must have a reason- able relation to the purposes to be attained by legislation.** Usually the plan pursued is to classify according to popula- tion.*" Thus in Minnesota municipalities containing not more than 3,000 inhabitants are classified as villages; while those containing more than 3,000 inhabitants are cities, and are divid- ed into four classes, namely, first, containing 50,000 inhabitants or more; second, containing 20,000 and less than 50,000; third, containing 10,000 and less than 20,000; fourth, con- taining 3,000 and less than 10,000.'"' In some states, a change in population changes the grade of the city ipso facto ; V while in others some prescribed steps must be taken to change the grade of the city.°^ *8 Commonwealth v. Gilllgan, 195 Pa. 504, 46 Atl. 124; Fitzgerald V. New Brunswick, 47 N. J. Law, 479, 1 Atl. 496, 54 Am. Rep. 182. 47 Northwestern University v. Village of Wilmette, 230 111. 80, 82 N. E. 615. *8 L'Hote V. Milford, 212 111. 418, 72 N. E. 399, 103 Am. St. Rep. 234 ; State ex rel. Attorney General v. Miller, 100 Mo. 448, 13 S. W. 677. *» People ex rel. Daniels v. Henshaw, 76 Cal. 436, 18 Pac. 413; Northwestern University v. Village of "Wilmette, 230 111. 80, 82 N. B. 615; Wooa V. Atlantic City, 56 N. J. Law, 232, 28 Atl. 427. The courts will take judicial notice of the class to which a municipality belongs and of its population according to the last census. State ex rel. Martin v. WofCord, 121 Mo. 61, 25 S. W. 851; People v. Page, 6 Utah, 353, 23 Pac. 761. so Rev. Laws Minn. 1905, §§ 700, 746. 51 State ex rel. Einstein v. Northup, 79 Neb. 822, 113 N. W. 540. 52 Brady v. State, 59 Ohio St. 546, 53 N. E. 63. § 21) OPERATION AND EFFECT OF INOOEPOKATION ^5 OPERATION AND EFFECT OF INCORPORATION 21. When- the organization of a' municipal corporation is completed, it at once succeeds to all such rights as are necessary to the proper control of the territory incorporated; but it does not necessarily succeed to the property and liabilities of a pre-existing cor- poration. Pending the incorporation of a municipality, the political status quo remains unchanged, and the acts of existing local officers and boards affecting the territory of the proposed mu- nicipality are valid and binding."' But as soon as the organi- zation is completed the new municipality is endowed with all the powers, privileges, and franchises conferred by the statute or charter, and succeeds to all such political and governmental powers as are necessary to the proper control of the territory ' incorporated."* The new corporation acquires exclusive juris- diction over all highways existing within the district incor- porated; °° but its rights and responsibilities are dependent on the conditions existing in fact and in law at the date of in- corporation."* The new municipality does not, however, necessarily succeed to the property "' and liabilities "' of the pre-existing corpora- 5 3 state ex rel. Gtarrison v. Commissioners of Putnam County, 23 Fla. 632, 3 South. 164. Bi People V. Morris, 13 Wend. (N. Y.) 325; Almand v. Atlanta Con- sol. St. Ry. Co., 108 Ga. 417, 34 S. E. 6. 5 5 McCain v. State, 62 Ala. 138; Almand v. Atlanta Consol. St. Ey. Co., 108 Ga. 417, 34 S. E. 6; Brown v. Hines, 16 Ind. App. 1, 44 N. E. 655; Raymond v. City of Wichita, 70 Kan. 532, 79 Pac. 323; Gilpin V. City of Ansonia, 68 Conn. 72, 35 Atl. 777. 6 6 City of Maysville v. Stanton (Ky.) 14 S. W. 675; Gilpin v. City of Ansonia, 68 Conn. 72, 35 Atl. 777. 6 7 Inhabitants of Essex v. Low, 5 Allen (Mass.) 595; Board of Edu- cation V. Board of Education, 41 Ohio St. 680; City of Winona v. School Dist. No. 82, 40 Minn. 13, 41 N. W. 539, 3 L. R. A. 46, 12 Am. St Rep. 687. 6 8 Mayhew v. Gay Head Dist., 13 Allen (Mass.) 129; Embler v. Cool.Mtjn.Cohp. — 5 C'6 CREATION OF MUNICIPAL COErOKATIONS (Ch. 2 tion in control of the territory,' unless the territory and pop- ulation of the new municipality are substantially the same as the old corporation. ^° The Legislature may, however, by general or special law apportion the property and debts between the two corpora- tions in its discretion.J^ Town of Wallkill, 132 N. T. 222, 30 N. B. 404; Goodhue v. Town of Beloit, 21 Wis. 636 ; City of Winona v. School Dist. No. 82, 40 Minn. 13, 41 N. W. 539, 3 L. R. A. 46, 12 Am. St. Rep. 687. But see Brown V. Milliken, 42 Kan. 769, 23 Pac. 167; Maumee School Tp. v. School Town of Shirley City, 159 Ind. 423, 65 N. B. 285. 60 Rose V. Hawley, 118 N. T. 502, 23 N. E. 904; Washburn Water- works Co. V. City of Washburn, 129 Wis. 73, 108 N. W. 194 ; Laird V. City of De Soto (C. C.) 22 Fed. 421; Id. (C. C.) 23 Fed. 780; Hig- ginson v. Turner, 171 Mass. 586, 51 N. B. 172; Town of Watervliet V. Town of Colonie, 27 App. Div. 394, 50 N. Y. Supp. 487; Ranken V. McCallum, 25 Tex. Civ. App. 83, 60 S. W. 975. "Wthen the pre-ex- isting organization was neither a corporation de jure nor a corpora- tion de facto, its de facto or de jure successor is not liable for its debts. City of Guthrie v. Wylie, 6 Okl. 61, 55 Pac. 103. 6 Appeal of Borough of Dunmore, 52 Pa. 374; Bradish v. Lucken, 38 Minn. 186, 36 N. W. 454 ; RUMSEX v. TOWN OF SAUK CENTRE, 59 Minn. 316, 61 N. W. 330, Cooley, Cas. Mun. Corp. 33 ; Mayor, etc., of City of Hoboken v. Ivison, 29 N. J. Law, 65 ; Darby Tp. v. Bor- ough of Lansdowne, 174 Pa. 203, 34 Atl. 574 ; Town of Humboldt v. City of Barnesville, 83 Slinn. 219, 86 N. W. 87. Ch. 3) LEGISLATIVE CONTROL 67 CHAPTER III LEGISLATIVE OONTEOIi 22. Legislative Control in General. 23. Limitations on Legislative ControL 24. Offices and Officers. 25. Public Funds and Revenues. 26. Contracts and Obligations. 27. Obligations Imposed by Legislature. 28. Property. 29. Franchises. 30. Public Thoroughfares. LEGISLATIVE CONTROL IN GENERAL 22. The state Legislature, by virtue of its sovereign pow- ers, may exercise supervisory control over the gov- ernmental functions, public affairs, and property of a municipal corporation, subject only to such lim- itations as may be imposed by the state and fed- eral Constitutions. During its existence a municipal corporation is subject to a large measure of legislative control. This follows as a necessary corollary of the legislative power to create such corporations. They are, as we have seen, public agencies for the administration of government.^ Primarily and chiefly, they are organized to promote the welfare of the citizens of the municipality.^ They are rarely established for rural communities, but are demanded by the necessities of urban life.* A municipal corporation is peculiarly a govern- 1 2 Kent, Comm. 275 ; People v. Morris, 13 Wend. (N. Y.) 325. 2 1 Dill. Mun. Corp. §§ 12, 20; People v. Morris, supra; City of Philadelphia v. Fox, 64 Pa. 180; East Tennessee University v. Mayor, etc., of City of Knoxville, 6 Baxt. (Tenn.) 166. 3 State ex rel. Attorney General v. Schvi^eickardt, 109 Mo. 496, 19 S. W. 47 ; People ex rel. Board of Park Com'rs of Detroit v. Common Council of Detroit, 28 Mich. 228, 15 Am. Rep. 202. "The fundamental idea of a municipal corporation, proper, both 68 LEGISLATIVE CONTROL (Ch. 3 ment of the people, by the people, and for the people residing within the corporate limits.^ And yet one of the chief func- tions of such a corporation is the due enforcement of certain criminal laws of the state, and the local exercise of the police power thereof.' Not only the citizens of the municipality, but all who come within its boundaries, are subject to its ju- risdiction. Its authority extends over these as well as the persons who are either permanently or temporarily within this jurisdiction.' The exercise of its functions requires lands, in England and in this country, is to invest compact or dense popu- lations with the power of local self-government. Indeed, the neces- sity for such corporations springs from the existence of centers or agglomerations of population, having, by reason of density and num- bers, local or peculiar interests and wants, not common to adjoin- ing sparsely settled or agricultural regions. It Is necessary to draw the line which divides the limits of the place and people to be in- corporated. This is with us a legislative function." 1 Dill. Mun. Corp. § 183. * Cooley, Const. LIm. (6th Ed.) 139 ; PEOPLE ex rel. LE ROT v. HURLBUT, 24 Mich. 44, 9 Am. Rep. 103, Cooley, Cas. Mun. Corp. 36 ; People ex rel. Board of Park Com'rs of Detroit v. Common Coun- cil of Detroit, 28 Mich. 228, 15 Am. Rep. 202. e State V. Pender, 66 N. C. 313 ; Egleston v. City Council of Charles- ton, 1 Mill, Const. (S. C.) 45; City Council of Charleston v. King, 4 McCord (S. C.) 487; City Council of Charleston v. Pepper, 1 Rich. (S. C.) 364; Rector v. State, 6 Ark. 187; Lewis v. State, 21 Ark. 209; Durr V. Howard, 6 Ark. 461 ; Ex parte Slattery, 3 Ark. 484 ; Smith, Mun. Corp. § 1320; Elliott, Mun. Corp. § 89; Commonwealth v. Roark, 8 Cush. (Mass.) 210; Commonwealth v. Pindar, 11 Mete. (Mass.) 539; Brown's Case, 152 Mass. 1, 24 N. E. 857; Myers v. People, 26 111. 173; Borough of St. Peter v. Bauer, 19 Minn. 327 (Gil. 282) ; People v. Wong Wang, 92 Cal. 277, 28 Pac. 270 ; People V. Ah Ung, 92 Cal. xix, 28 Pac. 272 ; State v. Cram, 84 Me. 271, 24 Atl. 853; People v- Gooseman, 80 Mich. 611, 45 N. W. 369; Peo- ple V. Brown, 80 Mich. 615, 45 N. W. 371 ; People v. Hulett, 61 Hun, 620, 15 N. T. Supp. 630. See, also, Cranston v. Mayor, etc., of City of Augusta, 61 Ga. 572 ; Rippe v. Becker, 56 Minn. 100, 57 N. W. 331, 22 L. R. A. 857; Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77; Ray- mond V. Fish, 51 Conn. 80, 50 Am. Rep. 3 ; Monroe v. City of Law- rence, 44 Kan. 607, 24 Pac. 1113, 10 L. R. A. 520; People v. Ben- nett, 83 Mich. 457, 47 N. W. 250 ; Ogden City v. McLaughlin, 5 Utah, 387, 16 Pac. 721; Stiate v. Orr, 68 Conn. 101, 35 Atl. 770, 34 L. R. A. 279 ; Welch v. City of Boston, 126 Mass. 442, note. 8 The people coming within the limits of the city are regarded for § 22) LEGISLATIVE CONTROL IN GENERAL 69 goods, chattels, and money. The corporation must buy and sell/ It incurs obligations which must be discharged. This property and these obligations may be strictly municipal, or they may be public in the wider sense. Out of this complex body, with its varied powers, purposes, and properties, and the administration of its affairs, must arise, therefore, many kinds of local rights, powers, and obligations, conflicting and complicated. Classes of Powers, Franchises and Property The Legislature is the supreme trustee for the people otf all public powers, rights, and property. The municipality is the local general agent of the state for governmental purposes. It has powers, franchises, and property of two classes: (1) Those held and exercised for the welfare of the general pub- lic; (2) those held and exercised for the local benefit of the municipality and its inhabitants. The former are subject to the unlimited control of the Legislature; the latter are not thus subject. But the state may administer these trusts and affairs through other agencies than said municipality for the benefit of the cestuis qui trustent.* the time being as inhabitants, and liable in the same manner for violations of laws. Heland y. City of Lowell, 3 Allen (Mass.) 407, 81 Am. Dec. 670; Mayor, etc., of City of Knoxville v. King, 7 Lea (Tenn.) 441; Village of Buffalo v. Webster, 10 Wend. (N. Y.) 99; City Council of Charleston v. Pepper, 1 Rich. (S. C.) 364 ; Strauss V. Town of Pontiac, 40 111. 301 ; Horney v. Sloan, Smith (Ind.) 136 ; Rose V. Hardie, 98 N. C. 44, 4 S. B. 41 ; In re Vandine, 6 Pick. (Mass.) 187, 17 Am. Dec. 351; Gosselink v. Campbell," 4 Clarke (4 Iowa) 296; Kennedy v. Sowden, 1 McMul. (S. C.) 323. 7 Proprietors of Mt. Hope Cemetery v. City of Boston, 158 Mass. 509, 33 N. E. 695, 35 Am. St. Rep. 515 ; Ketchum v. City of Buffalo, 14 N. Y. 356; Proprietors of Jeffries Neck Pasture v. Inhabitants of Ipswich, 153 Mass. 42, 26 N. E. 239; West Chicago Park Com'rs v. McMuUen, 134 111. 170, 25 N. E. 676, 10 L. R. A. 215 ; Richmond & W. P. Land, Navigation & Improvement Co. v. Town of West Point, 94 Va. 668, 27 S. E. 460; McDonogh's Ex'r v. Murdoch, 15 How. (U. S.) 367, 14 L. Ed. 732. 8 Darlington v. Mayor, etc., of City of New York, 31 N. Y. 164, 88 Am. Dec. 248; State v. Jacksonville St. R. Co., 29 Fla. 590, lO South. 590; Portland & W. V. R. Co. v. Portland, 14 Or. 188, 12 70 LEGISLATIVE CONTEOL (Ch. 3 In so far as its governmental aspects are concerned, the cor- poration is subject to legislative will.' This paramount pow- er of the state manifests itself in the alteration, consolidation, and dissolution of municipal corporations,^" the appointment and control of public officers,^^ the imposition on the mu- nicipality of pubHc burdens and obligations,^^ the control and appropriation of public revenues, ^^ the control of public im- provements,^* and of public property ^' and franchises.^* In short, the state acts as general guardian of the person and property of the municipal corporation, subject only to such limitations as may be imposed by the state and federal Consti- tutions. Pac. 265, 58 Am. Eep. 299 ; Chicago & W. 1. R. Co. v. Dunbar, 100 111. 110; City of Council Blufes v. Kansas City, St. J. & C. B. R. Co., 45 Iowa, 358, 24 Am. Rep. 773 ; People v. Kerr, 27 N. Y. 188 ; Daley v. City of St. Paul, 7 Minn. 390 (Gil. 311); City of Philadel- phia V. Fox, 64 Pa. 169. 9 City of San Francisco v. Canavan, 42 Cal. 541 ; City of Colorado Springs v. Neville, 42 Colo. 219, 93 Pac. 1096 ; Town of Cicero v. City of Chicago, 182 111. 301, 55 N. E. 351 ; State v. Kolsem, 130 Ind. 434, 29 N. E. 595, 14 L. R. A. 566 ; Prince v. Crocker, 166 Mass. 347, 44 N. E. 446, 32 L. R. A. 610; Attorney General ex rel. Battishill v. Township Board of Springwells, 143 Mich. 523, 107 N. W. 87 ; Alli- son V. Welde, 172 N. Y. 421, 65 N. E. 421 ; New Orleans M. & C. R. Co. V. City of New Orleans, 26 La. Ann. 478; Barnes v. District of Columbia, 91 U. S. 540, 23 L. Ed. 440; MT. PLEASANT v. BECK- WITH, 100 U. S. 514, 25 L. Ed. 699, Cooley, Cas. Mun. Corp. 74; State ex rel. Hostetter v. Holden, 19 Neb. 249, 27 N. W. 120 ; Booth V. McGulnness, 78 N. J. Law, 346, 75 Atl. 455 ; People ex rel. Shum- way V. Bennett, 29 Mich. 451, 18 Am. Eep. 107; PEOPLE ex rel. LE ROY V. HURLBUT, 24 Mich. 44, 9 Am. Rep. 103, Cooley, Cas. Mun. Corp. 36; Commonwealth v. Moir, 199 Pa. 534, 49 Atl. 351, 53 L. R. A. 837, 85 Am. St. Rep. 801; Wharton v. City of Greensboro, 146 N. C. 356, 59 S. E. 1043 ; Nichol v. Mayor, etc., of Town of Nash- ville, 9 Humph. (28 Tenn.) 252; Redell v. Moores, 63 Neb. 219, 88 N. W. 243, 55 L. R. A. 740, 93 Am. St. Rep. 431; People v. McBride, 234 111. 146, 84 N. E. 865, 123 Am. St. Rep. 82, 14 Ann. Cas. 994; Schigley v. City of Waseca, 106 Minn. 94, 118 N. W. 259, 19 L. R. A. (N. S.) 689, 16 Ann. Cas. 169. 10 See post, §§ 31-37. 11 See post, § 24. i* See post, §§ 85-92. 12 See post, § 27. is See post, § 28. IS See post, § 25. is See post, § 29. § 23) LIMITATIONS ON LEGISLATIVE CONTROL 71 LIMITATIONS ON LEGISLATIVE CONTROL 23. The extent of control which the Legislature may exer- cise over municipal corporations may be and usu- ally is limited by the Constitution and by the na- ture of the rights and powers exercised by the mu- nicipality. Though the power of the Legislature to exercise general supervisory control over municipal corporations is recognized, that power is subject to certain limitations. Thus, there are certain provisions of both the federal and state Constitutions which must always be considered in determining the extent to which the Legislature may go in its attempts to control. Among these constitutional limitations are the provisions re- lating to the protection of private property ^^ and those pre- venting the impairment of contractual obligations,^* provisions which operate especially to protect the rights of creditors of the municipality. Under the guise of legislative control, a private citizen cannot be deprived by an act of the Legislature of any of his rights against a municipal corporation.^" Other important constitutional provisions calculated to limit the pow- ers of the Legislature are those prescribing uni|ormity of laws and prohibiting special or local legislation.^" IT Grogan v. City of San Francisco, 18 Cal. 590; Webb v. Mayor, etc., of City of New York, 64 How. Prac. (N. Y.) 10. 18 SHAPLEIGH V. SAN ANGELO, 167 U. S. 646, 17 Sup. Ct. 957, 42 L. Ed. 310, Cooley, Cas. Mun. Corp. 319 ; Meriwether v. Garrett, 102 U. S. 472, 26 L. Ed. 197. 18 McSurely v. McGrew, 140 Iowa, 163, 118 N. W. 415, 132 Am. St. Rep. 248. 2 People V. Coleman, 4 Cal. 46, 60 Am. Dec. 581; People ex rel. Miller v. Cooper, 83 111. 585 ; New Brunswick v. Fitzgerald, 48 N. J. Law, 457, 8 Atl. 729 ; Pell v. Mayor, etc., of City of Newark, 40 N. • J. Law, 71, 29 Am. Kep. 266 ; Id., 40 N. J. Law, 550; Koester v. Com'rs of Atchison County, 44 Kan. 141, 24 Pac. 65; Smith v. Sherry, 50 Wis. 210, 6 N. W. 561 ; City of Evansville v. State ex rel. Blend, 118 Ind. 426, 21 N. E. 267, 4 L. R. A. 93; Edmonds v. Herbrandson, 2 72 LEGISLATIVE CONTROL (Ch. 3 An important limitation on the power of the Legislature is the principle, generally recognized, though not always express- ly declared, that the people are entitled to local self-govern- ment. In recognition of this principle it has been declared in some jurisdictions that the right of local self-government cannot be taken away from municipalities by act of the Leg- islature,^^ though this principle has been denied in a few ju- risdictions.^^ As has been pointed out in the preceding section, municipal corporations present a dual aspect, and exercise their func- tions in a dual capacity. The "exercise of legislative control over these corporations is, therefore, further limited by the nature of the rights and powers sought to be controlled. A municipal corporation possesses two classes of powers and two classes of rights — ^public and private. In all that relates to the one class, it is merely the agent of the state, and there- fore subject to its control. In the other, it is the agent of the inhabitants , of the place, and maintains the character and re- lations of an individual, and is not subject to the absolute con- trol of the Legislature.^* In this aspect the municipality is regarded as a distinct le- N. D. 270, 50 N. W. 970, 14 L. K. A. 725; Huntington v. City of Nevada (0. O.) 75 Fed. 60 ; Id., 82 Fed. 1002, 27 C. C. A. 681. 21 State ex rel Attorney General v. Moores, 55 Neb. 480, 76 N. W. 175, 41 L. R. A. 624; People ex rel. Attorney General v. Common Council of Detroit, 29 Mleh. 108; Scott v. Village of Saratoga Springs, 199 N. Y. 178, 92 N. E. 393 ; City of Bvansville v. State ex rel. Blend, 118 Ind. 426, 21 N. E. 267, 4 L. R. A. 93. 2 2 Adams v. KuyUendall, 83 Miss. 571, 35 South. 830; Ancrum v. Camden Water, Light & Ice Co., 82 S. C. 284, 64 S. E. 151, 21 L. R. A. (N. S.) 1029. 2 3 People ex rel. Rodgers v. Coler, 166 N. T. 1, 59 N. E. 716, 52 L. R. A. 814, 82 Am. St. Rep. 605; New Orleans, M. & C. R. Co. v. City of New Orleans, 26 La. Ann. 478 ; People ex rel. Board of Park Com'rs of Detroit v. Common Council of Detroit, 28 Mich. 228, 15 Am. Rep. 202; McSurely v. McGrew, 140 Iowa, 163, 118 N. W. 415, 132 Am. St. Rep. 248 ; STATE ex rel. JAMESON v. DENNY, 118 lud.- 882, 21 N. E. 252, 4 L. R. A. 79, Cooley, Cas*Mun. Corp. 4 ; State ex rel. White V Barker, 116 Iowa, 96, 89 N. W. 204, 57 L. R. A. 244, 93 Am, St. Rep. 222. § 24) OFFICES AND OFFICEBS 73 gal personality, having the rights and powers of a private, as distinguished from a public, corporation.^* The boundary be- tween the domain of the state and that of local powers is in- distinct and often difficult to trace; but the presumption is that the Legislature intends to keep within the limits of its authority, and when legislation is attacked as an infringement on the right of municipal self-government, more than usual force will be allowed to the legislative judgment as to what is admissible and proper in the particular case.^" OFFICES AND OFFICERS 24. In the absence of constitutional inhibition, the Legisla- ture has unlimited power of control over those mu- nicipal officers who are charged with the perform- ance of governmental functions devolved upon it, but cannot interfere with those officers who per- form functions of a distinctly municipal character. The territory within which a municipal government is ex- ercised is still a part of the state, and for all purposes other than those purely municipal is subject to the control of .the state. The state, therefore, through the Legislature, has the right to the appointment, election, tenure of office, and com- pensation of all officers that may be required to execute its general laws or to perform functions pertaining to the govern- ment of the state and not of a municipal nature."* On the other hand, it is equally well recognized that, in view of the fundamental right to local self-government, officers exercising purely municipal and local functions should be free from legis- lative control.^' 24 Dill. Mun. Corp. (1st Ed.) p. 83. 2 5 People ex rel. Attorney General v. Common Council of Detroit, 29 Mich. 108. 26 Kahn v. Sutro, 114 Cal. 316, 46 Pac. 87, 33 L. R. A. 620. 2 7 PEOPLE ex rel. LE ROY v. HURLBUT, 24 Mich. 44, 9 Am. Rep. 103, Cooley, Cas. Mun. Corp. 36; State ex rel. Holt v. Denny, 74 LEGISLATIVE CONTROL (Ch. 3 The chief difficulty is to determine what officers are gov- ernmental and what are municipal. Upon this line of conten- tion the courts of various states have divided as .to commit- tees for parks and streets and water supply.^' On the other hand, the administration of justice and the preservation of public peace are regarded as matters essentially of public con- cern. There is, therefore, a general unanimity of opinion that the Legislature may provide for the appointment of the members of a municipal police force by a board of commis- sioners.-' But the mayor,^" the fire department,'^ and the 118 Ind. 449, 21 N. E. 274, 4 L. E. A. 65 ; State ex rel. Attorney Gen- eral V. Moores, 55 Neb. 480, 76 N. W. 175, 41 L. R. A. 624; People V. Albertson, 55 N. Y. 50; State ex rel. Hamilton v. Krez, 88 Wis. 135, 59 N. W. 593. But see Lambert v. Norman, 119 Ga. 351, 46 S. E. 433; Scott v. Village of Saratoga Springs, 199 N. Y. 178, 92 N. E. 393, affirming 131 App. Div. 347, 115 N. Y. Supp. 796. 2 8 People V. Draper, 15 N. Y. 532; Daley v. City of St. Paul, 7 Minn. 390 (Gil. 311); St. Louis County Court v. Griswold, 58 Mo. 175. See, also. People ex rel. Board of Park Com'rs of Detroit v. Com- mon Council of Detroit, 28 Mich. 228, 15 Am. Rep. 202; People v. Albertson, 55 N.-Y. 50; PEOPLE ex rel. LE ROY v. HURLBUT, 24 Mich. 44, 9 Am. Rep. 103, Cooley, Cas. Mun. Corp. 36 ; State v. Smith, 44 Ohio St. 348, 7 N. E. 447, 12 N. E. 829 ; State ex rel. White v. Barker, 116 Iowa, 96, 89 N. W. 204, 57 L. R. A. 244, 93 Am. St. Rep. 222. 2 9 City of Americus v. Perry, 114 Ga. 871, 40 S. E. 1004, 57 L. R. A. 230; State ex rel. Hawes v. Mason, 153 Mo. 23, 54 S. W. 524; Gooch V. Town of Exeter, 70 N. H. 413, 48 Atl. 1100, 85 Am. St. Rep. 637; Horton v. City Council and City Treasurer of Newport, 27 R. I. 283, 61 Atl. 759, 1 L. R. A. (N. S.) 512, 8 Ann. Cas. 1097; Mayof, etc., of Baltimore v. State ex rel. Boar^ of Police of City of Bal- 30 Britton v. Steber, 62 Mo. 370; State ex rel. Wingate v. Valle, 41 Mo. 29. And see Scott v. Village of Saratoga Springs, 199 N. Y. 178, 92 N. E. 393, affirming 131 App. Div. 347, 115 N. Y. Supp. 796. But compare Attorney General ex rel. Moreland v. Common Coun- cil of City of Detroit, 112 Mich. 145, 70 N. W. 450, 37 L. R. A. 211; Lambert v. Norman, 119 Ga. 351, 46 S, E. 433. 31 City of Evansville v. State ex rel. Blend, 118 Ind. 426, 21 N. B. 267, 4 L. R. A. 93 ; State ex rel. Holt v. Denny, 118 Ind. 449, 21 N. E. 274, 4 L. R. A. 65; State ex rel. Attorney General v. Moores, 55 Neb. 480, 76 N. W. 175, 41 L. R. A. 624; City of Lexington v. Thompson; 113 Ky. 540, 68 S. W. 477, 57 L. R. A. 775, 101 Am. St. Rep. 361. § 25) PUBLIC FUNDS AND KEVENUES 75 board of public works '^ are regarded as exercising municipal functions and are not subject to state control. PUBLIC FUNDS AND REVENUES 25. The Legislature has the same power over the public revenues of a municipality as over the immediate funds of the state, and in the exercise of this au- thority it may appropriate these revenues to any public purpose conducive to the public good. The ordinary revenues of a city are not its property in the sense in which private property is held by an individual.^^ timore, 15 Md. 376, 74 Am. Dec. 572; People v. Draper, 15 N. Y. 532 ; People v. Albertson, 55 N. T. 50 ; People ex rel. Board of Park Com'rs of Detroit v. Common Council of Detroit, 28 Mich. 228, 15 Am. Hep. 202 ; Burch v. Hardwieke, -30 Grat. (Va.) 24, 32 Am. Rep. 640; People ex rel. McCagg v. Mayor, etc., of City of Cbicago, 51 111. 17, 2 Am. Kep. 278 ; People v. McDonald, 69 N. Y. 362 ; People ex rel. Drake v. Mahaney, 13 Mich. 481;, State ex rel. Attorney General V. Covington, 29 Ohio St. 102 ; State ex rel. Holt v. Denny, 118 Ind. 449, 21 N. E. 274, 4 L. E. A. 65; State v. Hunter, 38 Kan. 578, 17 Pac. 177. But see City of EvansvIUe v. State ex rel. Blend, 118 Ind. 426, 21 N. E. 267, 4 L. E. A. 93. "The power of the Legislature to provide for the appointment of the memhers of a municipal board of police has been affirmed in every instance in which it has been so challenged and presented as to require the judgment of courts. Those courts which hold to the doctrine that the control of matters of purely local concern can- not be taken from the people of the locality place their decisions up- on the ground that the selection of purely peace officers is not a lo- cal matter, but is one of state concern, inasmuch as such officers be- long to the constabulary of the state. But, while the reasoning, of the courts is diverse, the ultimate conclusion reached by all the cas- es is ttie same." Elliott, C. J., in State v. Kolsem, 130 Ind. 434, 29 N. E. 595, 14 L. E. A. 566. 32Moreland v. Millen, 126 Mich. 381, 85 N. W. 882; PEOPLE ex rel. LE EOY v. HUELBUT, 24 Mich. 44, 9 Am. Eep. 103, Cooley, Cas. Mun. Corp. 36 ; STATE ex rel. JAMESON v. DENNY, 118 Ind. 382, 21 N. B. 252, 4 L. E. A. 79, Cooley, Cas. Mun. Corp. 4. 3 3 Creighton v. Board of Sup'rs of City and County of San Fran- cisco, 42 Cal. 446 ; Board of Sup'rs of Sangamon County v. City of Springfield, 63 111. 66. 76 LEGISLATIVE CONTROL (Ch. 3 Such revenues belong to the public, and the collection and appropriation thereof by a city is the exercise of a trust func- tion by the municipality for the benefit of the public. The Legislature is the representative of the public in this as well as other matters, and it may change these public revenues from one public object to another at its discretion.^* The doctrine is generally recognized that no municipal corporation can have any vested right in the powers conferred upon it for governmental purposes. '° Therefore revenues raised by taxation, though levied for specific public purposes, are so far subject to the legislative will that by it they may be ap- plied to other uses of the municipality.'" In an early Illinois case it was decided that the Legislature had authority to repeal the power it had given to cities to grant licenses for the sale of intoxicating liquors, the fees of which were directed to be 3*Creigliton v. Board of Sup'rs of City and County of San Fran- c CO, 42 Cal. 446 ; State ex rel. Lynn v. Board of Education of City of St. Louis, 141 Mo. 45, 41 S. W. 924. In Board of Sup'rs of Sanga- mon County V. City of Spring'field, 63 111. 66, it was held that the revenues are the result of taxation exercised for the public good, and the public interest requires that the Legislature shall have power to direct and control their application. 35 PEOPLE ex rel. LE ROY v. HURLBUT, 24 Mich. 44, 9 Am. Rep. 103, Cooley,(Cas. Mun. Corp. 36; People v. Morris, 13 Wend. (N. Y.) 335. In City of St. Louis v. Sheilds, 52 Mo. 351, the court said : "It is an unsound and even absurd proposition that political power conferred by the Legislature can become a vested right, as against the government, in any individual or body of men." See, also. Von Hoffman v. Quincy, 4 Wall. (U. S.) 535, 18 L. Ed. 403. 3« People ex rel. City of Springfield v. Power, 25 111. 187 ; State ex> rel. Lynn v. Board of Education of City of St. Louis, 141 Mo. 45, 41 S. W. 924 ; Edmondson v. Board of Education of City of Memphis, 108 Tenn. 557, 69 S. W. 274, 58 L. R. A. 170 ; Von Hoffman v. City of Quincy, 4 Wall. (U. S.) 535, 18 L. Ed. 403. "However great the con- trol of the Legislature over the corporation while it is in existence, it must be exercised in subordination to the principles which secure the inviolability of contracts." United States ex rel. Wolff v. New Orleans, 103 U. S. 358, 26 L. Ed. 395. But see Board of Education of Covington v. Board of Trustees of Public Library of City of Cov- ington, 113 Ky. 234, 68 S. W. 10 ; State ex rel. Board of Education of City of Oshkosh v. Haben,-22 Wis. 660. § 25) PUBLIC FUNDS AND REVENUES 77 appropriated to the support of city paupers, Judge Caton in the opinion remarking that the charter power to Hcense "gives the city no more a vested right to issue Hcenses because the Legislature specified the objects to which the money should be applied, than if it had been put into the general fund of the city." "'' When the city of Lafayette was consolidated with New Orleans it was provided that the respective obliga- tions of the two cities should rest upon and be borne by the former territory of the two cities severally; but this just and equitable arrangement was, over the protest of the people of Lafayette, whose burden had been light, soon changed by a statutory provision requiring all portions of the consolidated city to bear equal parts of taxation. The Supreme Court of Louisiana answered the complaint of the citizens of Lafayette with a repetition of the fundamental doctrine that public cor- porations are wholly under the control of the Legislature, and it may provide in what manner taxes shall be leyied to sup- port them and pay their debts.'* Authority in Public Matters Only This power of the Legislature to control municipal funds applies only to the strictly public or governmental revenues of the city, and rests obviously upon the sovereign legislative power of the state in all public matters.'" This power of con- trol does not exist with regard to property in which the mu- nicipahty has a private interest or creditors have a vested right.*" Public revenues, however, are not regarded as pri- 3 7 Gutzweller v. People, 14 111. 142. See, also, Board of Sup'rs of Sangamon County v. City of Springfield, 63 111. 66; Eichland County V. Lawrence County, 12 lU. 1. 88 Lay ton v. City of New Orleans, 12 La. Ann. 515. 3 9 McDonald v. City of Louisville, 113 Ky. 425, 68 S. W. 413; Blades v. Board of Water Com'rs of City of Detroit, 122 Mich. 366, 81 N. W. 271 ; State ex rel. Wyatt v. Ashbrook, 154 Mo. 3^5, 55 S. W. 627, 48 L. E. A. 265, 77 Am. St. Bep. 765. *o State ex rel. Marchand v. City of New Orleans, 37 La. Ann. 13; United States ex rel. Wolff v. New Orleans, 103 U. S. 358, 26 L. Ed. 395; Louisiana ex rel. Southern Bank v. Pilsbury, 105 U. S. 278, 26 L. Ed. 1090; Louisiana ex rel. Nelson v. St. Martin's Parish, 111 U. 78 LEGISLATIVE CONTROL (Ch. 3 vate property, nor has any one a vested right in them until after their actual appropriation.*^ That this power pertains to public benefits was judicially declared and maintained in the celebrated case of State v. Railroad Co., decided by the Su- preme Court of Maryland in 1842, and affirmed by the Su- preme Court of the United States in 1844." The railroad company accepted a charter requiring it to locate- and build its road through three certain towns, upon penalty, in case of failure, that it should forfeit $1,000,000 to the state of Mary- land for the use of Washington county. After action brought to recover the penalty, the Legislature repealed that clause of the charter which imposed the penalty, and thereupon, under a plea puis darrein continuance, it was held that the county could not recover, as the forfeiture was in the right of the state; and the penalty was released.*' Here again it was de- clared that the corporation had no vested right in such a fund as this, but that the same was under the sovereign control of the Legislature. Examples of Power This is the general rule with regard to public property own- ed and controlled by the municipality as trustee or representa- tive of the public for public use, which could not be held by private individuals for such use. As a consequence, the Legis- lature has full power over the revenues of a corporation, the S. 716, 4 Sup. Ct. 648, 28 L. Ed. 574 ; Von Hoffman v. City of Quin- cy, 4 Wall. (U. S.) 535, 18 L. Ed. 403; Oilman v. Sheboygan, 2 Black (U. S.) 510, 17 L. Ed. 305 ; Ralls County Court v. United States, 105 U. S. 733, 26 L. Ed. 1220; Goodale v. Fennell, 27 OMo St. 426, 22 Am. Rep. 321. 41 Memphis v. United States ex rel. Brown, 97 U. S. 293, 24 L. Ed. 920; Von HofCman v. City of Quincy, 4 Wall. (U; S.) 535, 18 L. Ed. 403 ; Pereles v. City of Watertown, 6 Biss. 79, Fed. Gas. No. 10,980. *2 State, to Use of Washington County, v. Baltimore & O. R. Co., 12 Gill & J. (Md.) 399, 38 Am. Dec. 319, affirmed 3 How. 534, 11 L. Ed. 714. •4 3 State, to Use of Washington County, v. Baltimore & O. R. Co., 12 Gill & J. (Md.) 399, 38 Am. Dec. 319, affirmed 3 How. (U. S.) 534, 11 L. Ed. 714. § 25) PUBLIC FUNDS AND EEVENUE3 79 source of which it may prescribe and alter at its pleasure.** It may give or it may withhold, for example, the power to grant and tax licenses for various occupations;*' also the power to levy and collect wharfage or ferriage,*" or penalties for breach of law or of contract.*^ It may ratify void local assessments ; ** it may compel the satisfaction by the city of nonlegal claims against it; *° it may regulate the use of streets, ** Carondelet Canal Nav. Co. v. City of New Orleans, 44 La. Ann. 394, 10 South. 871 ; McSurely v. McGrew, 140 Iowa, 163, 118 N. W. 415, 132 Am. St. Rep. 248; People ex rel. Oak Hill Cemetery Ass'n v. Pratt, 129 N. Y. 68, 29 N. E. 7; McGee v. City of Salem, 149 Mass. 238, 21 N. E. 386; Northampton County v. Easton Pass. Ry. Co., 148 Pa. 282, 23 Atl. 895; Lucas v. Board of Com'rs of Tippecanoe County, 44 Ind. 524 ; Taylor v. Robinson, 72 Tex. 364, 10 S. W. 245; Anderson v. City of Mayfield, 93 Ky. 230, 19 S. W. 598; Tice v. City of Mayfield, 93 Ky. 230, 19 S. W. 598; People v. Fields, 58 N. Y. 491; Home Ins. Co. v. City Council of Augusta, 93 U. S. 116, 23 L. Ed. 825; Terrel v. Wheeler, 123 N. Y. 76, 25 N. E. 329; Youngs v. Hall, 9 Nev. 212; Darst v. Griffin, 31 Neb. 668, 48 N. W. 819; Board of Education v. Commissioners, 107 N. C. 110, 12 S. E. 190; Essex Public Road Board v. Skinkle, 140 U. S. 334, 11 Sup. Ct. 790, 35 L. Ed. 446; Love v. Schenck, 34 N. C. 304. *5 Board of Sup'rs of Sangamon County v. City of Springfield, 63 111. 71; City of Richmond v. Richmond & D. R. Co., 21 Grat. (Va.) 604; People v. Meyer (Sup.) 5 N. Y. Supp. 69; People ex rel. City of Springfield v. Power, 25 111. 187; Richland County v. Lawrent;e County, 12 111. 1; Mendocino County v. Bank of Mendocino, 86 Cal. 255, 24 Pac. 1002; Grantham v. State, 89 Ga. 121, 14 S. E. 892; Home Ins. Co. V. Augusta, 93 U. S. 116, 23 L. Ed. 825. 4 6 City of St. Louis v. Sheilds, 52 Mo. 351. 4T Ex parte Christensen, 85 Cal. 208, 24 Pac. 747; State, to Use of Washington County, v. Baltimore & O. R. Co., 12 Gill & J. (Mid.) 399, 38 Am. Dec. 319 ; Maryland v. Same, 3 How. (U. S.) 534, 11 L. Ed. 714 ; HoUiday v. People, 5 Gilman (111.) 216 ; Conner v. Bent, 1 Mo. 235; Coles v. Madison County, Breese (111.) 154, 12 Am. Dec. 161; Chicago & A. R. Co. v. Adler, 56 111. 344. *8 Mayor, etc., of Baltimore v. Horn, 26 Md. 194; Great Falls Ice Co. V. District of Columbia, 19 D. C. 327 ; Lennon v. Mayor, etc., Of City of New York, 55 N. Y. 361. 4 9 Thomas v. Leland, 24 Wend. (N. Y.) 65; Creighton v. Board of Sup'rs of City and County of San Francisco, 42 Cal. 446; People ex rel. New York Electric Lines v. Squire, 145 U. S. 175, 12 Sup. Ct. 880, 36 L. Ed. 666; CITY OF NEW ORLEANS v. CLARK, 95 U. S. 654, 24 L. Ed. 521, Cooley, Cas. Mun. Corp. 46; MERCHANTS' NAT. BANK OF ST. PAUL v. CITY OF EAST GRAND FORKS, 94 Minn. 246, 102 N. W. 103, Cooley, Cas. Mun. Corp. 49; Cooper y. Springer, 80 LEGISLATIVE CONTROL (Oh. 3 highways, and other public places ; " it may transfer the con- trol of the parks, streets, and other public places to a board of commissioners appointed by the state." It may also create and appoint a board of police commissioners, and regulate the compensation for them and for the police officers of the mu- nicipality, and compel their payment out of the municipal treasury.°2 To the contention that taxation and representa- tiofi go together, the Supreme Court of Maryland replied: "Every city is represented in the state Legislature, and it is for that body to determine how much power shall be con- ferred by the municipal charters which it grants,|^nd to fix the salary which police officers shall receive, and to require a payment by those who get the benefit of their services." °' 65 N. J. Law, 594, 48 Atl. 605 ; Town of Guilford v. Board of Sup'rs of Chenango County, 13 N. X. 143; People v. Board of Sup'rs of Essex County, 70 N. T. 228 ; Baker v. City of Seattle, 2 Wash. 576, 27 Pac. 462; Smith v. Morse, 2 Oal. 524; Grogan v. City of San Francisco, 18 Cal. 590; Brewster v. City of Syracuse, 19 N. Y. 116; Wilder v. City of East St. Louis, 55 111. 133; United States v. Baltimore & O. R. Co., 17 Wall. (U. S.) 322, 21 L. Ed. 597; City of Philadelphia v. Field, 58 Pa. 320 ; Mayor, etc., of Baltimore v. State ex rel. Board of Police of City of Baltimore, 15 Md. 376, 74 Am. Dec. 572; Mayor, etc., of New York V. Tenth Nat. Bank, 111 N. Y. 446, 18 N. E. 618 ; People v. May- or, etc., of City of Brooklyn, 4 N. Y. 419, 55 Am. Dec. 266; State ex rel. Arick v. Hampton, 13 Nev. 441; North Missouri R. Co. v. Ma- guire, 49 Mo. 490, 8 Am. Rep. 141; People ex rel. Blanding v. Burr, 13 Cal. 343. The Legislature has power to charge the payment of a deficiency against a city for liability incurred In excess of its charter limita- tion, so far as the claims are based on an equitable or a legal ground. City of Syracuse v. Hubbard, 64 App. Div. 587, 72 N. Y. Supp. 802. 6 Appeal of McGee, 114 Pa. 470, 8 Atl. 237; People ex rel. Bran- som V. Walsh, 96 111. 232, 36 Am. Rep. 135; People v. New York & H. R. Co., 45 Barb. (N. Y.) 73 ; SIMON v. NORTHUP, 27 Or. 487, 40 Pac. 560, 30 L. R. A. 171, Cooley, Cas. Mun. Corp. 57. 61 People ex rel. Bransom v. Walsh, supra ; Cicero Lumber Co. v. Town of Cicero, 176 111. 9, 51 N. B. 758, 42 L. R. A. 696, 68 Am. St. Rep. 155. o2.Mayor, etc., of Baltimore v. State ex rel. Board of Police of City of Baltimore, 15 Md. 376, 74 Am. Dec. 572; People ex rel. Drake V. Mahaney, 13 Mich. 481; People v. Draper, 15 N. Y. 532. 03 Mayor, etc., of Baltimore v. State ex rel. Board of Police of City of Baltimore,' 15 Md. 376, 74 Am. Dec. 572. § 25) PUBLIC FUNDS AND 'BEVENUES 81 In short, it has been repeatedly, adjudicated that the Legis- lature has the same power over the revenues of the munici- pality that it has over the funds bi the state, and may thus direct their application to such purposes as it deems appro- priate for the public welfare."* In the exercise of legislative authority over municipal funds and revenues, the same uncertainties, limitations, and varia- tions along the indefinite boundary line between governmental and municipal functions may be observed as have been men- tioned hitherto. Thus, in California, the imposition of a li- cense tax on a business or occupation is a municipal affair."" In Kentucky, the Legislature may impose local taxes to carry out local enterprises, such as the construction of a railroad.'* In Michigan, a municipality may be required to pay money to the credit of the board of health,"' but not to expend money for purely local improvements."* Other instances of like char- acter may be found in the decisions of the various courts. "° 6* Richland County v. Lawrence County, 12 111. 1; Palmer v. Fltts, 51 Ala. 489; City of Chicago v. Cook County, 106 111. App. 47; State ex rel. Hawes v. Mason, 153 Mo. 23, 54 S. W. 524; Payne v. Tread- well, 16 Cal. 220; City of San Francisco v. Canavan, 42 Cal. 541; Rawson v. Spencer, 113 Mass. 40 ; Wfeymouth & B. Fire Dist. v. Nor- folk County Com'rs, 108 Mass. 142; Town of Beloit v. Morgan, 7 Wall. (U. S.) 619, 19 L. Ed. 205; Town of Montpelier v. Town of East Montpelier, 29 Vt. 12, 67 Am. Dec. 748 ; Trustees of Schools v. Tatman, 13 lU. 28 ; Davock v. Moore, 105 Mich. 120, 63 N. W. 424, 28 L. R. A. 783; Love v. Schenck, 34 N. C. 304. It is within the power of the Legislature to impose a tax upon a particular subdivision of a municipality of the state when in its judgment it is for the benefit of the locality as well as of the state at large. Young v. City of Kansas City, 152 Mo. 661, 54 S. W. 535; Elliott T. City of Kansas City, 152 Mo. 667, 54 S. W. 1103. See Prince " V. Crocker, 166 Mass. 347, 44 N. E. 446, .32 L. R. A. 610. 5 Ex parte Helm, 143 Cal. 553, 77 Pac. 453. 86 Slack V. Maysville & L. R. Co., 13 B. Mon. 1. , B7 Davock V. Moore, 105 Mich. 120, 63 N. W. 424, 28 L. R. A. 783. B8 People ex rel. Board of Park Com'rs of Detroit v. Common Council of Detroit, 28 Mich. 228, 15 Am. Rep. 202. 6 9 State ex rel. Board of School Directors v. City of New Orleans, 42 La. Ann. 92, 7 South. 674; Elting v. Hickman, 172 Mo. 237, 72 S. W. 700 ; Helena Consol. Water Co. v. Steele, 20 Mont. 1, 49 Pac. COOL.MUN.COEP. — 6 82 LEGISLATIVE CONTROL (Ch. 3 Political Pozuer Conferred Not a Vested Right All of these powers, and many others pertaining to the con- tracts and obligations of the city, are based upon the proposi- tion that pohtical power conferred by the Legislature cannot become a vested right, as against the government, in any in- dividual or body of men."" Such power exists subject to the legislative will, and may be withdrawn at any time, subject to constitutional limitations; and so far has this doctrine been carried in lowa,''^ and some other states, that it has been held that the Legislature may compel a city to pay a debt in- curred by a municipality in excess of the legislative limitation upon indebtedness, which is a very practical overruling of the doctrine of ultra vires. If the limitation be placed by Consti- tution, such power does not exist in the Legislature.^^ So, too, the Legislature may direct and levy compulsory taxes upon a corporation when necessary to perform its duties or discharge its vaUd obligations.*' Likewise the state may com- pel the assessment and disbursement of public revenue for 382, 37 L. E. A. 412 ; O'Neill v. City of Hoboken, 72 N. J. Law, 67, 60 Atl. 50. 6 United States ex rel. Wolff v. New Orleans, 103 U. S. 858, 26 L. Ed. 395; People v. Morris, 13 Wend. (N. Y.) 335. 81 Scott V. City of Davenport, 34 Iowa, 208; City of Syracuse v. Hubbard, 64 App. Div. 587, 72 N. Y. Supp. 802 ; Mosher v. Inde- pendent School Dist. of Ackley, 44 Iowa, 122. 62 CITY OP NEW OKLEANS v. CLARK, 95 U. S. 644, 24 L. Ed. 521, Cooley, Cas. Mun. Corp. 46; Creighton v. Board of Sup'rs of City and County of San Francisco, 42 Cal. 446; In re Opinion of the Justices, 99 Me. 515, 60 Atl. 85. And see City of Guthrie v. New Vienna Bank, 4 Okl. 194, 38 Pac. 4. 6 3 Memphis v. Brown, 97 U. S. 300, 24 L. Ed. 924; Vance v. City of Little Rock, 30 Ark. 435, 439; CITY OF NEW ORLEANS v. CLARK, 95 U. S. 644, 24 L. Ed. 521, Cooley, Cas. Mun. Corp. 46; Layton v. New Orleans, 12 La. Ann. 515; Eschenburg v. Board of Com'rs of Lake County, 129 Ind. 398, 28 N. E. 865; Maltby v. Taut- ges, 50 Minn. 248, 52 N. W. 858; Hawkins v. Intendant, etc., of Town of Jonesboro, 63 6a. 527; Little v. Committee of Union Tp., 40 N. J. Law, 397; City of San Francisco v. Canavan, 42 Cal. 541; Carpenter v. People, 8 Colo. 116, 5 Pac. 828; MT. PLEASANT v. BECKWITH, 100 U. S. 514, 25 L. Ed. 699, Cooley, Cas. Mun. Corp. 74. § 26) CONTRACTS AND OBLIGATIONS 83 the erection and support of schoolhouses and schools,'* pub- lic highways,®' bridges, and canals,"" or any other matters which are state concerns as distinguished from municipal. CONTRACTS AND OBLIGATIONS 26. The legislative power of the state over the contracts and obligations of municipalities is limited by the vest- ed rights of third parties, and the prohibitions found in many of the state constitutions. Subject to these limitations, the state has control over the contracts and obligations of a municipality. As a general rule, subject, however, to certain well-defined limitations, the state Legislature has general supervision and control over municipal contracts and obligations."' The Leg- islature may prescribe the mode by which municipalities may enter into contracts and the limit of their power of contract- ing."* It may forbid municipal contracts with municipal of- ficers who have the power to make contracts,"' and may pre- scribe the terms on which and the objects for which a munici- pality may make contracts.'" But the contracts of munici- 64 state ex rel. Snoke v. Blue, 122 Ind. 600, 23 N. B. 963; State Board of Education v. City of Aberdeen, 56 Miss. 518 ; School Dist. No. 1 V. Weber, 75 Mo. 558. 6 5 People V. Board of Sup'rs of San Luis Obispo County, 50 Cal. 561 ;, People v. Flagg, 46 N. Y. 401 ; Jensen v. Board of Sup'rs of Polk County, 47 Wis. 298, 2 N. W. 320. 6 6 Guilder v. Town of Otsego, 20 Minn. 74 (Gil. 59); City of Phil- adelphia V. Field, 58 Pa. 320; SIMON v. NORTHUP, 27 Or. 487, 40 Pac. 560, 30 L. R. A. 171, Cooley, Cas. Mun. Corp. 57 ; Thomas v. Leland, 24 Wend. (N. Y.) 65; Pumphrey v. Mayor, etc., of Baltimore, 47 Md. 145, 28 Am. Rep. 446; City of Philadelphia v. Fox, 64 Pa. 169. 6 7 State V. Kolsem, 130 Ind. 434, 29 N. E. 595, 14 L. R. A. 566. 68 Head v. Providence Ins. Co., 2 Cranch (U. S.) 127, 2 L. Ed. 229. 6»Macy V. aty of Duluth, 68 Minn. 452, 71 N. W. 687; West v. Berry, 98 Ga. 402, 25 S. E. 508 ; Benton v. Hamilton, 110 Ind. 294, 11 N. E. 238. TO Webster v. Town of Harwinton, 32 Conn. 131; Frost v. Inhab- itants of Belmont, 6 Allen (Mass.) 152; Youngblood v. Sexton, 32 84 LEGISLATIVE CONTROL (Oh. 3 palities, when not ultra vires or otherwise invalid, are pro- tected by the prohibition in the federal Constitution, against laws impairing the obligation of contracts.^^ This rule has been repeatedly asserted by the courts when attempts have been made to limit the taxing power of the municipality on the faith of which contracts have been made. , The following decisions may illustrate the judicial opinion upon these subjects: Parties who have become creditors of a municipal corporation upon the faith of the taxing power granted to it to meet its obligations may enforce the execution of this power by the appropriate process.^^ The taxing stat- ute is thus held to be a part of the contract whose obligation cannot be impaired; but the mode of taxation may be altered if the change does not materially affect the creditors' se- curity.'* So, too, certain property may be made exempt from, which was originally subject to, taxation.'* But where credit has been given to a municipality upon the faith of a statutory Mich. 406, 20 Am. Rep. 654; CLAIBORNE COUNTY v. BROOKS, 111 U. S. 400, 4 Sup. Ct. 489, 28 L. Ed. 470,'Cooley, Gas. Mun. Corp. 366 ; Reed v. City of Anoka, 85 Minn. 294, 88 N. W. 981 ; Kelley v. Milan, 127 U. S. 139, 8 Sup. Ct. 1101, 32 Z.. Ed. 77. 71 Board of Education of City and County of San Francisco v. Fowler, 19 Cal. 11; City of Indianapolis v. Indianapolis Gas-Light & Coke Co., 66 Ind. 396; Smith v. City of Appleton, 19 Wis. 468; SHAP- LEIGH V. SAN ANGBLO, 167 TJ. S. 646, 17 Sup. Ct. 957, 42 L. Ed. 310, Cooley, Cas. Mun. Corp. 319. 72 Port of Mobile v. Watson, 116 U. S. 289, 6 Sup. Ct. 398, 29 h. Ed. 620; Gilman v. Sheboygan, 2 Black (U. S.) 510, 17 L. Ed. 305; State ex rel. Marchand v. City of New Orleans, 37 La. Ann. 13; United States ex rel. WlolfC v. New Orleans, 103 U. S. 358, 26 L. Ed. 395; Von Hoffman v. Quiney, 4 Wall. (U. S.) 535, 18 L. Ed. 403; Louisiana ex rel. Southern Bank v. Pilsbury, 105 U. S. 278, 26 L. Ed. 1090 ; Louisiana ex rel. Nelson v. St. Martin's Parish, 111 U. S. tl6, 4 Sup. Ct. 648, 28 L. Ed. 574; Goodale v. Fennell, 27 Ohio St 426, 22 Am. Rep. 321. 7s People ex rel. McLane v. Bond, 10 Cal. 563; Cooley, Const. Lim. (6th Ed.) 347, 349. 74 Cooley, Const. Lim. (6th Ed.) 348; Seibert v. Lewis, 122 U. S. 284, 7 Sup. Ct. 1190, 30 L. Ed. 1161; Gilman v. Sheboygan, 2 Black (U. S.) 510, 17 L. Ed. 305 ; Goodale v. Fennell, 27 Ohio St. 426, 22 Am. Rep. 321. § 27) OBLIGATIONS IMPOSED BY LEdHSLATUEE 85 provision that no further bonded indebtedness shall be con- tracted by the city, an injunction has been granted to restrain an increase of bonded indebtedness, upon the ground that it would impair the obligations of a contract.'" So, also, cred- itors may acquire a vested right in a sinking fund provided for their security, so as to authorize them to call upon the courts to prevent any material change in its character, or diversion of it to other uses, since the law had pledged it to them for their security.'* OBLIGATIONS IMPOSED BY LEGISLATURE 27. Upon the elementary principle that duty imposes ob- ligation, the Legislature has authority to impose upon the corporation without its consent, and even against its protest, such obligations as will enable it to perform its public functions. The courts generally recognize the rule that the Legislature may impose pecuniary burdens on the municipality. It has accordingly been held that for such purpose a city may be com- pelled to pay a debt in excess of a legislative limit of indebted- ness, to levy and collect taxes and appropriate them to the building and repair of highways, bridges, and canals, as be- ing matters of public, as distinguished from municipal, con- cern;'' to expend money for the improvement of docks, wharves, and levees ; '* to collect and appropriate money for * 7 5 Smith V. City of Appleton, 19 Wis. 468. '6 Board of Liquidators of City Debts v. Municipality No. 1, 6 La. Ann. 21; Kelly v. City of Minneapolis, 63 Minn. 125, 65 N. W. 115, SO L. R. A. 281 ; People ex rel. McLane v. Bond, 10 Cal. 563. 7 7 Thomas v. Leland, 24 Wend. (N. Y.) 65; People v. Board of' Sup'rs of San Luis Obispo County, 50 Cal. 561 ; Jensen v. Board of Sup'rs of Polk Cpunty, 47 Wis. 298, 2 N. W. 320; People v. Flagg, 46 N. T. 401. In one case this duty was enforced by mandamus at the instance of a private person not showing either interest or in- Jury. Pumphrey v. Mayor, etc., of Baltimore, 47 Md. 145, 28 Am. Rep. 446. 7 8 Eastern & A. R. Co. v. Central R. Co., 52 N. J. Law, 267, 19 Atl. 722.. 86 LEGISLATIVE CONTROL (Ch. 3 the support of public schools of the city;'* to provide for the distribution of money raised by taxation for school pur- poses after its collection; ^^ to pay a just debt not enforceable in law or equity; *^ and to pay for property destroyed by a mob, without reference to its ability or exercise of diligence to prevent the destruction.^ The Legislature may impose on the municipality liability for injuries due to defects in streets or other causes/' and com- pel the payment of warrants issued under an illegal contract/* debts barred by the statute of limitations/^ and debts con- 7 9 State ex rel. Snoke v. Blue, 122 Ind. 600, 23 N. E. 963; State ex rel. Clark v. Haworth, 122 Ind. 462, 23 N. E. 946, 7 L. R. A. 240. And see State v. City of Lawrence, 79 Kan. 234, 100 Pac. 485, hold- ing that the Legislature may compel a city where the State Univer- sity is located to issue bonds in aid thereof. 8» State Board of Education v. City of Aberdeen, 56 Miss. 518 School Dist. No. 1 v. Weber, 75 Mo. 558. 81 Creighton v. Board of Sup'rs of City and County, of San Fran Cisco, 42 Cal. 446; Vasser v. George, 47 Miss. 713; Town of Guil ford V. Cornell, 18 Barb. (N. Y.) 615; Hasbrouck v. City of Milwau kee, 21 Wis. 219 ; CITY OF NEW ORLEANS v. CLARK, 95 U. S. 644, 24 L. Ed. 521, Cooley, Cas. Mun. Corp. 46 ; Brewster v. City of Syra cuse, 19 N. Y. 116; People v. Board of Sup'rs of Essex County, 70 N. Y. 228; City of Syracuse v. Hubbard, 64 App. Div. 587, 72 N, Y. Supp. 802; Lycoming County v. Union County, 15 Pa. 166, 53 Am, Dec. 575; State ex rel. Arick v. Hampton, 13 Nev. 441. The follow- ing cases declare the right of the municipality to a trial in due course of law; Plimpton v. Town of Somerset, 33 Vt. 283; Sanborn V. Rice County Com'rs, 9 Minn. 273 (Gil. 258); State ex rel. McCur- dy V. Tappan, 29 Wis. 664, 9 Am: Rep. 622. See, also, Cooley, Tax'n, 687. 8 2 City of Chicago v. Manhattan Cement Co., 178 111. 372, 53 N. E. 68, 45 L. R. A. 848, 69 Am. St Rep. 321. 8s City of Colorado Springs v. Neville, 42 Colo. 219, 93 Pac. 1096; Winter v. City of Niagara Falls, 190 N. Y. 198, 82 N. E. 1101, 123 Am. St. Rep. 540, 13 Ann. Cas. 486 ; Walters v. City of Ottawa, 240 111. 259, 88 N. E. 651. 8* MERCHANTS' NAT. BANK OP ST. PAUL v. CITY OF EAST GRAND FORKS, 94 Minn. 246, 102 N. W. 703, Cooley, Cas. Mun. Corp. 49. 8= People ex rel. Kellner v. City of New York, 3 Misc. Rep. 131, 23 N. Y. Supp. 1060. § 27) OBLIGATIONS IMPOSED BY LEGISLATURE 87 tracted by the illegally organized predecessor of the munici- pality.'° In a leading case the Supreme Court of New York has car- ried this doctrine to the extent of sustaining a statute passed levying a tax upon the property of a corporation, and appro- priating the same to the payment of a private demand against the town, which had been expressly rejected by the voters of the town at an election held under legislative authority for that purpose, and intended as a settlement of the right.V Judge Cooley says this authority may be defended upon the ground that it is the duty of the state to enforce just obligations for the public benefit which have been incurred in the exercise of public power conferred upon a corporation.*' But it is equal- ly well settled by repeated decisions that it rests with the in- habitants of a municipality to determine conclusively whether a debt shall be incurred for purely municipal purposes ; ** also that a corporation cannot be compelled to become a stock- holder in a railway company, or other private corporation; "'' and in the celebrated Detroit Park Case it was ruled that a public park was a matter of municipal concern, and that the levy of a tax for the purchase and improvement of such parks could not be enforced by the Legislature without the consent of the municipality.*^ The only exception to this wholesome 8 6 MAYOR, ETC., OF CITY OF GUTHRIE v. TERRITORY, 1 Okl. 188, 31 Pac. 190, 21 L. R. A. 841, Cooley, Cas. Mun. Corp. 30, 52. 8 7 Town of Guilford v. Cornell, 18 Barb. (N. Y.) 615; Compare State V. City of Lawrence, 79 Kan. 234, 100 Pac. 485. See, also, Carter v. Cambridge & B. Bridge Proprietors, 104 Mass. 236; CITt OF NEW ORLEANS v. CLARK, 95 U. S. 654, 24 L. Ed. 521, Cooley, Cas. Mun. Corp. 46; United States v. Railroad Co., 17 Wall. (U. S.) 322, 21 L. Ed. 597; People ex rel. Blanding v. Burr, 13 Cal. 34.3; North Missouri R. Co. v. Maguire, 49 Mo. 490, 8 Am. Rep. 141. 8 8 Cooley, Tax'n (2d Ed.) 685. 8 9 People V. Harper, 91 111. 357; People Vi Batchellor, 53 N. Y. 128, 13 Am. Rep. 480 ; People ex rel. Board of Park Com'rs of Detroit v. Common Council of Detroit, 28 Mich. 228, 15 Am. Rep. 202 ; , Atkins V. Town of Randolph, 31 Vt 226. 80 People V. Batchellor, 53 N. Y. 128, 13 Am. Rep. 480. 91 People ex rel. Board of Park Com'rs of Detroit v. Common Coun- cil of Detroit, 28 Mich. 228, 15 Am. Rep. 202. 88 LEGISLATIVE CONTROL (Ch. 3 doctrine is to be found in the state of Pennsylvania, wherein under direct legislative act sustained by the courts, the people of Philadelphia were unwillingly compelled to pay hundreds of thousands of dollars annually for the erection of the city hall "upon a scale of magnificence better suited for the capital of an empire than the municipal buildings of a debt-burdened city." *^ The same act which declared that the city must have these fine buildings appointed certain citizens a body of commissioners for their erection, and made this body self- perpetuating, and authorized it to make contracts for the con- struction of the buildings, and to make requisitions on the common council for the expenses thereof, the citizens of Phil- adelphia having no vote or voice whatever as to the subject. This, of course, could only be defended upon the idea that the city hall was not municipal, but governmental, property, over which the state had supreme control. Between Pennsylvania at one extreme and Michigan at the other, the other states stand in a middle position of greater safety, even if greater doubt, as to the administration of the law. PROPERTY 28. Public property held by a municipality for the benefit of the general public may be controlled and ad- ministered by the state as supreme trustee for the public; but property actually acquired by a mu- nicipal corporation in the course of administration, and held for the benefit of the municipality, is not subject to the absolute control of the Legislature. In the consideration of the right of the Legislature to con- trol the property of a municipality, the dual nature of the corporation causes difficulties, not in stating the principle, but in its practical application. Contentions inevitably arise over the question, What is strictly municipal property, and what »2 Perkins v. Slack, 86 Pa. 283. I 28) PEOPEETT 89 is governmental property; or what property is held by the municipality for the benefit of the general public, and what for the local benefit? The adjudged cases do not point out any distinct line of separation for these two classes of property, and in the confusion of cases upon this subject it is not wise ■to attempt to formulate any definite rule of law whereby to distinguish them, other than that suggested in the text. In Michigan, where the right of local self-government is fully recognized and protected by constitutional provision. Judge Cooley says : "It is immaterial in what way the property was lawfully acquired, whether by labor in the ordinary vocations of life, by gift or by descent, or by making profitable use of a franchise granted by the state ; it is enough that it has become private property, and it is then protected by the law of the land." *' It is hardly proper, in other states where home rule is not so highly favored, to speak of any municipal property as private property. It is, however, essentially trust property, the municipality being the trustee, and the people of the locality the cestuis que trustent of strictly municipal property."* Of this class of property Judge Dillon expresses the opinion: "That while the Legislature has full power of legitimate regu- lation and control, it cannot deprive them (that is, in essence, the people of the locality at whose expense it has been ac- quired, or for whose benefit it was granted) of such property. It is in efifect fastened with a trust for the incoTporated mu- nicipality as long as the Legislature suffers it to live, and for the benefit of the people of the locality if the corporate entity which represents their rights shall be dissolved." "" In New 03 City of Detroit v. Detroit & H. Plank Ro^d Co., 43 Micb. 147, -5 N. W. 275. 94 Nichol V. M^yor, etc., of Town of Nashville, 9 Humph. (Tenn.) 252 ; Penny v. Croul, 76 Mich. 471, 43 N. W. 649, 5 L. E. A. 858 ; Small V. Inhabitants of Danville, 51 Me. 359 ; Jones v. City of New Haven, 34 Conn. 1; Maxmilian v; Mayor, etc., of City of New York, •62 N. Y. 160, 20 Am. Eep. 468; Western College of Homeopathic Medicine v. City of Cleveland, 12 Ohio St. 375. 9 5 1 Dill. Mun. Corp. § 68a. 90 LEGISLATIVE CONTEOL (Ch. 3 York it was decided that certain real. estate held by the city in fee simple absolute under ancient grant, upon which at great expense the city had constructed reservoirs, could not by leg- islative action be converted into a public park without compen- sation to the city.°^ Upon the dissolution of a municipal cor- poration, so much of its assets as are not stamped with the strictly public character will be taken possession of and ad- ministered for the benefit of creditors of the corporation by a receiver appointed by the Legislature, or by the court of chan- cery. "' Where property is bought and held specially for local pur- poses, the local community have a special interest therein, as has also the creditor who has furnished money for its pur- chase; both are interested in its value and continued owner- ship by the .corporation.'* This may be illustrated in the mat- 96 Webb V. Mayor, 64 How. Prac. (N. Y.) 10. See, also, Terrett v. Taylor, 9 Cranch (U. S.) 52, 3 L. Ed. 650 ; People v. Ingersoll, 58 N. Y. 1, 17 Am. Kep. 178 ; 2 Kent, Comm. 257. 97 1 Dill. Mun. Corp. § 170. 98 People v. Ingersoll, 58 N. Y. 1, 17 Am. Rep. 178 ; San Fran- cisco Gas Co. V. City of San Francisco, 9 Cal. 453 ; Jones v. City of New Haven, 34 Conn. 1 ; Bailey v. Mayor, etc., of City of New York, 3 Hill (N. Y.) 531, 38 Am. Dec. 669; Western Sav. Fund Soc. v. City of Philadelphia, 31 Pa. 175, 72 Am. Dec. 730; Western College of Homeopathic Medicine v. City of Cleveland, 12 Ohio St. 375; Small V. Inhabitants of Danville, 51 Me. 359; Nichol v. Mayor, etc., of Town of Nashville, 9 Humph. (Tenn.) 252 ; Wagner v. City of Rock Island, 146 111. 139, 34 N. E. 545, 21 L. R. A. 519 ; Howe v. City of New Orleans, 12 La. Ann. 481 ; People ex rel. Board of Park Com'rs of Detroit v. Common Council of Detroit, 28 Mich. 228, 15 Am. Rep. 202; City of Detroit v. Corey, 9 Mich. 165, 80 Am. Dec. 78; PEO- PLE ex rel. LE ROY v. HURLBUT, 24 Mich; 44, 9 Am. Rep. 103, Cooley, Cas. Mun. Corp. 36 ; Niles Water Works Co. v. City of Niles, 59 Mich. 311, 26 N. W. 525; Commonwealth v. City of Philadel- phia, 132 Pa. 288, 19 Atl. 136; City of Philadelphia v. Fox, 64 Pa. 180; Safety Insulated Wire & Cable Co. v. City of Baltimore, 66 Fed. 140, 13 C. C. A. 375 ; Illinois Trust & Savings Bank v. City of Arkansas City, 76 Fed. 271, 22 C. C. A. 171, 34 L. R. A. 518; City of Louisville v. Commonwealth, 1 Duv. (Ky.) 295, 85 Am. Dec. 624 ; STATE ex rel. JAMESON v. DENNY, 118 Ind. 382, 21 N. E. 252, 4 L. R. A. 79, Cooley, Cas. Mun. Corp. 4; Oliver v. City of Wor- cester, 102 Mass. 489, 3 Am. Rep. 485 ; In re Malone's Estate, 21 S. § 28) PEOPEKTY 91 ter of waterworks, gasworks, electric plants, and the like, which, though owned by the city, have a peculiarly private na- ture, and are protected by the state for the use of those in- terested when the corporation is dissolved." Other items of property, such as streets, market places, public squares, and the like, represent the property held for public use.^ The authority of the Legislature to control municipal property and affairs does not include the property and affairs which are of a private nature,^ and all legislative acts controlling or dis- C. 435; United States v. Railroad Co., 17 Wall. (U. S.) 332, 21 L. Ed. 597. Committee of Union Tp. v. Rader, 41 N. J. Law, 617 ; Amy v. Selma, 77 Ala. 103; Eader v. Southeasterly Road District of Union Tp., 36 N. J. Law, 273 ; People v. Morris, 13 Wend. (N. Y.) 325 ; City of Clinton v. Cedar Rapids & M. R. R. Co., 24 Iowa, 455 ; Darling- ton V. Mayor, etc., of City of New York, 31 N. Y. 164, 88 Am. Dec. 248 ; Fish v. Branin, 23 N. J. Law, 484 ; President, etc., of City of Paterson v. Society for Establishing .Useful Manufactures, 24 N. J. Law, 386 ; Von Hoffman v. Quincy, 4 Wall. (U. S.) 535, 18 L. Ed. 403 ; Butz V. Muscatine, 8 Wall. (U. S.) 575, 19 L. Ed. 490. But see, contra, Coyle v. Mclntlre, 7 Houst. (Del.) 44, 30 Atl. 728, 40 Am. St. Rep. 109, where it was held that a municipal corpo- ration does not hold property for the purpose of furnishing its in- habitants with water, as a private corporation, so as to prevent the Legislature from modifying the management thereof at will. See, also, Springfield Fire & Marine Ins. Co. v. Village of Keeseville, 148 N. Y. 46, 42 N. E. 405, 30 L. R. A. 660, 51 Am. St Rep. 667. . 1 Elliott, Roads & S. § 656 ; City of Council Bluffs v. Kansas City, St. J. & C. B. R. Co., 45 Iowa, 338, 24 Am. Rep. 773; State v. Jack- sonville St. R. Co., 29 Fla. 590, 10 South. 590; County Com'rs of Duval County v. City of Jacksonville, 36 Fla. 196, 18 South. 339, 29 L. R. A. 416 ; Chicago & W. I. R. Co. v. Dunbar, 100 111. 110 ; Port- land & W. V. R. Co. V. Portland, 14 Or. 188, 12 Pac. 265, 58 Am. Rep. 299. See, also. People v. Kerr, 27 N. Y. 188, where the court said, with reference to the holding of streets by the corporation, that it "is as directly under the power and control of the Legislature for any public purpose as any property held by the state or any public body or ofiicers, and its application cannot be challenged by a corpora- tion, which, in respect to such property at least, is a mere agent of the sovereign power of the people." 2 Darlington v. Mayor, etc., of City of New York, 31 N. Y. 164, 88 Am. Dec. 248 ; City of Clinton v. Cedar Rapids & M. R. R. Co., 24 Iowa, 455; City of Louisville v. President, etc., of University of' Louisville, 15 B. Mon. (Ky.) 642; Portland & W. V. R. Co. v. Port- 92 LEGISLATIVE CONTROL (Ch. S posing of the property and valuable franchises of municipal corporations are subject to the limitations necessary for the protection of the vested and peculiar rights of the people and creditors of the municipality in its quasi private affairs.* By this term is not meant to include those kinds of property in a city which may be owned and controlled for the use of the citizens either by the city or by some private corporation or individual. Property of this kind, when owned and used by the city for the convenience of its citizens, and as a source of revenue for itself, has been generally held to be controlled and protected by the same rules of law as if it were owned by a private corporation, and therefore is not subject to dis- cretionary legislative contirol.* So, also, the lands or other property which have been acquired by a municipal corporation by gift or purchase for local uses.° land, 14 Or. 188, 12 Pac. 265, 58 Am. Eep. 299 ; People v. Kerr, 27 N. X. 188 ; Mercer v. Pittsburgh, Ft. W. & C. E. Co., 36 Pa. 99; May- or, etc., of City of New Orleans v. Hopkins, 13 La. 326 ; New Or- leans, M. & C. R. Co. V. City of New Orleans, 26 La. Ann. 517 ; Coun- cils of Reading v. Commonwealth, 11 Pa. 196, 51 Am. Dec. 534;. Wagner v. City of Rock Island, 146 111. 139, 34 N. E. 545, 21 L. E. A. 519. 3 Illinois Trust & Savings Bank v. City of Arkansas City, 76 Fed. 271, 22 C. C. A. 171, 34 L. R. A. 518 ; 1 Smith, Mun. Corp. § 1702. The Legislature of a state has no right to interfere with and con- trol by compulsory legislation the action of municipal corporations with respect to property and contract rights of purely local con- cern. People ex rel. Rodgers v. Coler, 166 N. X. 1, 59 N. E. 716, 52 L. R. A. 814, 82 Am. St. Rep. 605. * People V. Kerr, 27 N. Y. 188 ; Portland & W. V. R. Co. v. Port- land, 14 Or. 188, 12 Pac. 265, 58 Am. Rep. 299 ; New Orleans, M. & C. R. Co. v. City of New Orleans, 26 La. Ann. 517 ; Trustees, etc., of the Town of Southampton v. Mecox .Bay Oyster Co., 116 N. X. 1, 22 N. E. 387; Darlington v. Mayor, etc., of City of New -York, 31 N. Y. 164, 88 Am. Dec. 248 ; Cummings v. City of St. Louis, 90 Mo. 259, 2 S. W. 130 ; Proprietors of Mt. Hope Cemetery v. City of Boston, 158 Mass. 509, 33 N. E. 695, 35 Am. St. Rep. 515 ; City of Wellington v. Wellington Township, 46 Kan. 213, 26 Pac. 415 ; Councils of Reading V. Commonwealth, 11 Pa. 196, 51 Am. Dec. 534; State ex rel. At- torney General v. Schweickardt, 109 Mo. 496, 19 S. W. 47; Mercer V. Pittsburgh, Ft. W. & C. R. Co., 36 Pa. 99. 6 Webb V. Mayor, etc. of City of New York, 64 How. Prac. (N> 29) FRANCHISES 93 FRANCHISES 29. Public franchises held by a municipal corporation under legislative grant may be altered or revoked at the legislative will. The franchise to be a eorporation, which is held to belong to the corporators of a private corporation, and to be protected by the contract clause of the federal Constitution, is obviously as to municipalities a matter of merely public concern, and therefore under the legislative control in all particulars and at all times, as we shall hereafter see in considering the subject of the charter.^ All municipal franchises are subjects of legis- lative grant, and, whether granted to third persons or to the corporation itself, may be revoked before the grantee has per- formed the public sei"vice imposed as a condition of the grant.'' For example, the right to construct waterworks, gasworks, or electric plants, and to supply the city and its citizens with these public utilities necessary for an urban population in modern times, may be granted either to the municipality or to a private corporation organized for that purpose. Before the work has been done to construct these public utilities, the state may re- peal the law by which they were granted, and thus revoke the franchises ; ' but with regard to private corporations these Y.) 10; Terrett v. Taylor, 9 Cranch (U. S.) 52, 3 L. Ed. 650; 2 Kent, Comm. 257. See cases cited in note 43. 8 Lay ton v. City of New Orleans, 12 La. Ann. 515; Girard v. Phila- delphia, 7 WaU. (U. S.) 1, 19 L. Ed. 53 ; Smith v. Inge, 80 Ala. 283 ; 1 Dill. Mun. Corp. §§ 63-68 ; Elliott, Mun. Corp. § 2. 7 As indicative of the lack of power of a municipality to grant a franchise, in Cain v. City of Wyoming, 104 111. App. 538, it was held that a city ordinance granting the privilege of constructing and operating a system of waterworks is a mere license. A franchise must be granted by the Legislature; a municipal body cannot con- fer it. 8 Trustees of Schools v. Tatman, 13 111. 28, 30 ; Darlington v. May- or, etc., of City of New York, 31 N. Y. 164, 88 Am. Dec. 248 ; Hart- ford Bridge Co. v. Town of East Hartford, 16 Conn. 149. 94 LEGISLATIVE CONTEOL (Ch. 3 franchises, as soon as the works are completed, become con- tracts, protected by the rule in the Dartmouth College Case, and no law can be passed by the state to impair the obligations of this contract.' The same rule, it is believed, should apply in case these franchises are granted to the municipality and exercised by it.^" But here arises a conflict between this con- tractual right to the franchises so granted and the undoubted power of the Legislature to dissolve tlie corporation, and the subject becomes one of complication and difficulty. Suffice it to say for the present that the legislative control of such fran- chises as supply these public utilities is not absolute and un- limited. It has been held with regard to certain franchises that the Legislature has unqualified right of revocation; for example, a public corporation has no property right in a ferry franchise acquired under a legislative grant,^^ nor in a wharf franchise to maintain wharves and charge wharfage.^'' Such powers are held by the United States Supreme Court to be "merely administrative, and may be revoked at any time, not touching, of course, any property of the city actually acquired in the course of administration." ^^ PUBLIC THOROUGHFARES 30. The Legislature has general control over all streets, ca- nals, rivers, and bridges, and other public thor- oughfares, and may compel the municipality to make such expenditures thereon for their improve- ment as it deems best for the public welfare. Dartmouth College v. Woodward, 4 Wheat. (U. S.) 518, 4 L. Ed. 629. 10 Helena Consol. Water Co. v. Steele, 20 Mont. 1, 49 Pac. 382, 37 L. E. A. 412 ; Benson v. Mayor, etc., of City of New York, 10 Barb. (N. Y.) 223 ; City of Cincinnati v. Cameron, 33 Ohio St. 336. 11 Hartford Bridge Co. v. Town of East Hartford, 16 Conn. 149; East Hartford v. Hartford Bridge Co., 10 How. (U. S.) 511, 13 L. Ed. 518, 531. 12 New Orleans, M. & T. E. Co. v. Ellerman, 105 U. S. 166, 26 L. Ed. 1015. 13 Id. § 30) PUBLIC THOROtJGHFAEES 95 The state, as the sovereign agency of the people for the purposes of government, holds all public powers and utilities in trust for the public welfare.^* Hence the Legislature as supreme trustee for the people has power of control over all streets, avenues, and alleys.^ ^ Within constitutional limita- tions it may determine when, where, and how streets or other public highways may be opened, graded, improved, and regu- lated,^* and may vacate streets and close them to the public, subject, however, to the vested rights of abutting owners.^'' As all public thoroughfares are matters of general, as dis- tinguished from local, concern, the Legislature may prescribe what improvements thereon shall be made for the public con- venience, and may require the corporation to pay the expense of particular improvements required by it.^* The Legislature may use the compulsory power of taxation, or even compel the issuance of bonds by a municipality, for the purpose of raising money to pay for the construction and maintenance of a bridge or a canal, or wharves or levees in the city limits.^* 14 Kreigh v. City of Chicago, 86 111. 407. 15 People V. New York & H. R. Co., 45 Barb. (N. T.) 73, 26 How. Prac. 44 ; SIMON v. NORTHUP, 27 Or. 487, 40 Pac. 560, 30 L. R. A. 171, Cooley, Cas. Mun. Corp. 57 ; "Western Union Tel. Co. v. Hop- kins, 160 Cal. 106, 116 Pac. 557; Heller v. Atchison, T. & S. F. R. Co., 28 Kan. 625; Cicero Lumber Co. v. Town of Cicero, 176 111. 9, 51 N. p. 758, 42 L. R. A. 696, 68 Am. St. Rep. 155 ; Prince v. Crocker, 166 Mass. 347, 44 N. E. 446, 32 L. R. A. 610. 18 Cicero Lumber Co. v. Town of Cicero, 176 111. 9, 51 N. E. 758, 42 L. R. A. 696, 68 Am. St. Rep. 155 ; Barrows v. City of Sycamore, 150 111. 588, 37 N. E. 1096, 25 L. R. A. 535, 41 Am. St. Rep. 400 ; SIM- ON V. NORTHUP, 27 Or. 487, 40 Pac. 560, 30 L. R. A. 171, Cooley, Cas. Mun. Corp. 57; Daley v. City of St. Paul, 7 Minn. 390 (GU. 311) ; Baird v. Rice, 63 Pa. 489. 17 Appeal of McGee, 114 Pa. 470, 8 Atl. 237; Mahady v. Bush wick R. Co., 91 N. Y. 148, 43 Am. Rep. 661 ; Callanan v. Gilman, 107 N. Y. 360, 14 N. E. 264, 1 Am. St. Rep. 831. 18 People V. Kerr, 27 N. Y. 188; Portland & W. V. R. Co. v. Port- land, 14 Or. 188, 12 Pac. 265, 58 Am. Rep. 299 ; Lent v. Tillson, 72 Cal. 404, 14 Pac. 71; Daley v. City of St. Paul, 7 Minn. 390 (Gil. 311). 19 Davock V. Moore, 105 Mich. 120, 63 N. W. 424, 28 L. R. A. 783; Guilder v. Town of Otsego, 20 Minn. 74 (Gil. 59) ; Thomas v. Leland, 24 Wend. (N. Y.) 65. 96 LEGISLATIVE CONTROL (Ch. 3 And in Massachusetts it has been held that the Legislature may charge the cost of an authorized public improvement upon the municipal corporation chiefly benefited thereby."" In Maryland and some other states, so important is this duty to maintain streets and highways that it may be enforced by mandamus at the suit of a private person without showing special interest or injury.^^ The power of the Legislature over streets is so great that it may, so far as the public is concerned, determine to what use they may be put, even to the authorization of a nuisance in them ; "" and in Pennsyl- vania the power of the Legislature to authorize a turnpike gate to be established in a city street has been supported by judicial decision.''* Street railways are operated in every city of the country. Usually the Legislature requires that the street railway companies shall obtain their franchise from the city ; ^^ but these franchises may be conferred by the Legis- lature directly, without regard to corporate authority.'" In some states the concurrence of both Legislature and city is re- quired.^" The Legislature likewise possesses the power to lo- cate streets, and may exercise it without municipal consent."' 20 Inhabitants of Norwich v. Hampshire County Com'rs, 13 Pick. (Mass.) 60. 2 1 Pumphrey v. Mayor, etc., of Baltimore, 47 Md. 145, 28 Am. Rep. 446. 22 State V. Luce, 9 Houst. (Del.) 396, 32 Atl. 1076; Bedell v. Long Island R. Co., 44 N. Y. 367, 4 Am. Rep. 688; Cleaveland v. Grand Trunk R. Co., 42 Yt- 449 ; Pennsylvania R. Co. v. Liplncott, 116 Pa. 472, 9 Atl. 871, 2 Am. St. Rep. 618; State v. Parrott, 71 N. C. 311, 17 Am. Rep. 5. 23 Stormfeltz v. Manor Turnpike Co., 13 Pa. 555. 2* State ex rel. Laclede Gaslight Co. v. Murphy, 130 Mo. 10, 31 S. W. 594, 31 L. R. A. 798. 2 5 People V. Kerr, 27 N. Y. 188; Dubach v. Hannibal & St J. R. Co., 89 Mo. 483, 1 S. W. 86 ; Savannah & T. R. Co. v. Mayor, etc., of City of Savannah, 45 Ga. 602; City of Milwaukee v. Milwaukee & B. R. Co., 7 Wis. 85 ; City of Chicago v. Illinois Steel Co., 66 111. App. 561; Louisville Bagging Mfg. Co. v. Central Pass. Ry. Co., 95 Ky. 50, 23 S. W. 592, 44 Am. St. Rep. 203. 26 2 Dill. Mun. Corp. § 701a, note. 2 7 Lennon v. Mayor, etc., of City of New York, 55 N. Y. 365; Sin- ton V. Ashbury, 41 Cal. 525. § 30) PUBLIC THOBOUGHFAEE8 97 This, like other municipal powers, may be delegated to the municipality.** The doctrines of this chapter are believed to have the sup- port of the preponderance of judicial decision in the United States, and to be consistent with the fundamental principles of our government. 28 2 Dill. Mun. Corp. §§ 680, 727; Northern Transp. Co. v. Chicago, 99 U. S. 635, 25 L. M- 336. See post, § 107. COOL.MUN.COEP. — 7 98 * ITERATION AND DISSOLUTION (Ch. 4 CHAPTER IV ALTERATION AND DISSOLUTION 31. In General. 32. Territorial Increase or Decrease. 33. Division of Municipal Territory. 34. Consolidation. 35. Operation and Effect of Annexation, Division, or Consolidation. 36. Repeal of Charter and Dissolution. 37. Reincorporation. IN GENERAL ' 31. The Legislature has plenary powers, unless forbidden by constitutional provision — (a) To change the boundaries of municipal corporations so as to enlarge or decrease their territory; (b) To divide a municipal corporation into two or more , separate municipalities; (c) To unite two or more separate municipal corpora- tions into a single one; (d) To repeal the charter, and thereby dissolve the cor- poration. The power of the Legislature to create and control mu- nicipal corporations naturally includes the power to alter the boundaries of such corporations at will, without the consent of the municipality or its inhabitants.^ There is ah apparent conflict of decisions on the question whether the discretion of 1 Wade V. City of Richmond, 18 Grat. (59 Va.) 583 ; Slauson v. City of Racine, 13 Wis. 398; Toney v. City of Macon, 119 Ga. 83, 46 S. E. 80; Tovrn of Cicero v. City of Chicago, 182 111. 301, 55 N: E. 351; People ex rel. Shumway v. Bennett, 29 Mich. 451, 18 Am. Rep. 107; Carrithers v. City of Shelby ville, 126 Ky. 769, 104 S. W. 744, 17 L. R. A. (N. S.) 421; Lutterloh v. City of FayetteviUe, 149 N. C. 65, 62 S. E. 758; Pittsburgh, C, O. & St. L. Ry. Co. v. City of Anderson, 176 Ind. 16, 95 N. E. 363 ; Allen v. Board of Trustees of City of Bakersfield, 157 Cal. 720, 109 Pac. 486. § 32) rKEKITOEIAL INCKEASE OK DECKEASB 99 the Legislature in this regard can be controlled by the courts.^ That the courts should control the exercise of this power is certainly anomalous. In view of the fact, however, that the power of altering its boundaries may be and usually is dele- gated to the municipality,* it is probable that most of the cases are in reality instances of control by the courts of the exercise of delegated powers. This question is further dis- cussed in the following section. As to the nature of the changes which may be made in the municipality, its territorjjr may be increased or diminished, it may be divided into two or more municipalities, or it may be consolidated with another municipality. As a further corollary of the general principle of legislative control, a municipal corporation may be wholly reorganized as a new coi^poration, or it may be dissolved and its existence terminated. TERRITORIAL INCREASE OR DECREASE 32. The boundaries of a municipal corporation may be en- larged by the annexation of territory, subject to the limitation that only adjacent or contiguous ter- ritory can be attached. The power to change the- boundary of a municipal cor- poration may also be exercised in diminishing its territory by a detachment or excision of a part thereof. The general power of the Legislature to enlarge the boundaries of a municipality by annexing or authorizing the annexation of territory is upheld in numerous deci- 2 Town of Roswell v. Ezzard, 128 Ga. 43, 57 S. E. 114; State v. Waxahachie, 81 Tex. 626, 17 S. W. 348; Madry v. Cox, 73 Tex. 538, 11 S. W. 541. 8 City of Burlington v. Leebrick, 43 Iowa, 252 ; Callen v. City of Junction City, 43 Kan. 627, 23 Pac. 652, 7 L. R. A. 736; City of Wahoo V. Dickinson, 23 Neb. 426, 36 N. W. 813. 100 ALTERATION AND DISSOLUTION (Ch. 4 sions.* While there is some conflict of decisions as to the right of the Legislature to delegate the power to annex ter- ritory to a municipality,' unquestionably the Legislature may by generaj laws provide for annexation and place the matter in the hands of the municipality, or some special board or tribunal, to determine when the conditions justifying an- nexation exist.* It is not generally regarded as a delegation of legislative power to I'eave the annexation of territory to flhe option of the municipality, or to provide for submission of the question to the vote of the people.' But, of course, without authority duly given a municipality cannot on its own authority extend its boundaries.* The courts of the country have been inclined to restrict the * City of Santa Rosa v. Coulter, 58 Oal. 537 ; People ex rel. Cuff V. City of Oakland, 123 Cal. 598, 56 Pac. 445; CITY OF DENVER V. COULEHAN, 20 Colo. 471, 39 Pac. 425, 27 L. R. A. 751, Cooley, Cas. Mun. Corp. 61; Toney v. City of Macon, 119 Ga. 83, 46 .S. E. 80 ; True v. Davis, 133 111. 522, 22 N. E. 410, 6 L. R, A. 266 ; Paul V. Town of Walkerton, 150 Ind. 565, 50 N. E. 725; State v. Warner, 4 Wash. 773, 31 Pac. 25, 17 L. R. A. 263; McCain v. City of Dea Moines, 128 Iowa, 331, 103 N. W. 979; Attorney General ex rel. BattishiU v. Township Board of Springwells Tp., 143 Mich. 523, 107 N. W. 87; Wlade v. City of Richmond, 18 Grat. (59 Va.) 583; Pow- ell V. City of Parkersburg, 28 W. Va. 698. 5 The power is upheld in City of Burlington v. Leebrick, 43 Iowa, 252; Callen v. City of Junction City, 43 Kan. 627, 23 Pac. 652, 7 L. R. A. 736; Ruling v. Topeka, 44 Kan. 577, 24 Pac. 1110; City of Wahoo V. Dickinson, 23 Neb. 426, 36 N. W. 813; City of Emporia v. Smith, 42 Kan. 433, 22 Pac. 616. But see Forsyth v. City of Ham- mond, 71 Fed. 443, 18 C. Q. A. 175; City of Galesburg v. Hawkinson, 75 111. 152. 6 Foreman v. Town of Marianna, 43 Ark. 324 ; Mayor of City of JefCersonville v. Weems, 5 Ind. 547; Strosser v. City of Ft. Wayne, 100 Ind. 443 ; McCain v. City of Des Moines, 128 Iowa, 331, 103 N. W. 979 ; City of Covington v. Southgate, 54 Ky. (15 B. Mon.) 491. r People v. Town of Ontario, 148 Cal. 625, 84 Pac. 205; Attorney General ex rel. BattishiU v. Township Board of Springwells Tp., 143 Mich. 523, 107 N. W. 87 ; Little Rock v. North Little Rock, 72 Ark. 195, 79 S. W. 785. 8 Strosser v. City of Ft. Wayne, 100 Ihd. 443 ; Atchison & N. R. Co. V. Maquilkin, 12 Kan. 301 ; People ex rel. Kittredge v. Mabie, 142 N. Y. 343, 37 N. E. 115 ; Short v. Gouger (Tex. Civ, App.) 130 S. W. 267. § 32) TEEHITOEIAL INCREASE OR DECREASE 101 scope of the legislative power in enlarging corporations so^ as to observe the unity, territorial as well as legal, of a mu- nicipal corporation." The decisions in regard to the power of annexing territory to an existing corporation have been made chiefly in states where the law permits existing munici- pal corporations to extend their own territory by the action of the corporation, and rarely when the Legislature itself has exercised its power for this purpose. The delegation of any legislative power is always of doubtful right; but, when the , particular act to be performed is largely ministerial and ex- clusively legislative, the delegation of power has been sus- tained often by the courts.^" Conceding the power of the leg- islative department to create municipal corporations, and to alter them according to its own judgment of public- welfare, the courts have held this right must be exercised in accord- ance with the facts of nature and the truths of science. They have declared that a municipality is a single body, and that its territory musi; be included within a single boundary; that even the Legislature is subject to the mathematical verities, and cannot by legislative enactment destroy the standard formula, "One and one make two." ^^ Accordingly it has been ruled that noncontiguous territory cannot be annexed to a municipality.^^ 9 State V. City of Waxahachie, 81 Tex. 626, 17 S. W. 348. 10 Kelly V. Meeks. 87 Mo. 396; StilJ: v. City of Indianapolis, 55 Ind. 515 ; People ex rel. Shumway v. Bennett, 29 Mich. 451, 18 Am. Hep. 107 ; Blanchard v. Bissell, 11 Ohio St. 96 ; Hurla v. Kansas City, 46 Kan. 738, 27 Pac. 148 ; Callen v. City of Junction City, 43 Kan. 627, 23 Pae. 652, 7 L. R. A. 736. 11 VESTAL V. LITTLE BOCK, 54 Ark. 321, 15 S. W. 891, 11 L. R. A. 778, Cooley, Cas. Mun. Corp. 67; Vogel v. Little Kock, 54 Ark. 335, 15 S. W. 836 ; Blanchard v. Bissell, 11 Ohio St. 96 ; CITY OF DENVER V. COULEHAN, 20 Colo. 471, 39 Pac. 425, 27 L. R. A. 751, Cooley, Cas. Mun. Corp. 61; Chicago & N. W. By. Co. v. Town of Oconto, 50 Wis. 189, 6 N. W. 607, 36 Am. Rep. 840. 12 City of Evansville v. Page, 23 Ind. 525; Smith v. Sherry, 50 Wis. 210, 6 N. W. 561 ; Blanchard v. Bissell, 11 Ohio St. 96 ; Truax V. Pool, 46 Iowa, 256 ; Town of Enterprise v. State, 29 Fla. 128, 10 South. 740 ; Woodruff v. Eureka Springs, 55 Ark. 618, 19 S. W. 15 ; Wild V. People, 227 111. 556, 81 N. B. 707; Little Rock v. Town of 102 ALTERATION AND DISSOLUTION (Gh. 4 The authority of the courts to declare that territory not con- tiguous to an existing municipal corporation cannot be annexed by legislative act is obvious, since it is not possible physically ■ to annex noncontiguous tracts of land. But where the I^egis- lature exercises its discretionary power to annex contiguous unsettled and unoccupied territory, farming or pasture lands, or even woodlands, to a municipal corporation, it is not easy to see how the courts can get jurisdiction to revise this legis- lative discretion, and declare the legislative act to be void.^^ That they should do so, however, in proper cases, where this power of annexation is exercised by the corporation itself un- der an express or implied delegation of authority therefor, is not in the least strange or presumptuous, since in such cases the courts do not admit that they are revising legislative dis- cretion, but are restraining a manifestly improper exercise or an abuse of legislative power by a sflbsidiary body using the power for its own benefit.^* What Territory may be Annexed The general rule is that the territory to be annexed to a municipality must be contiguous or adjacent.^" By the term North Little Kock, 72 Ark. 195, 79 S. W. 785; South Platte Land Co. V. Buffalo Co., 15 Neb. 605, 19 N. W. 711 ; McClay v. City of Liu- coin, 32 Neb. 412, 49 N. W. 282 ; Town of Cicero v. City of Chicago, 182 111. 301, 55 N. E. 351; Clark v. City of Kansas City, 176 U. S. 114, 20 Sup. Ct. 284, 44 L. Ed. 392 ; Miller r. City of Camden (N. J. Sup.) 44 Atl. 961. 13 People V. Bennett, supra; City of Galesburg v. Hawkinson, 75 111. 152. 11 In Kelly v. Meeks, 87 Mo. 396, it was held that an act confer- ring upon a city power to extends its limits was unconstitutional. See, also, Stilz v. City of Indianapolis, 55 Ind. 515 ; Taylor v. City of Ft. Wayne, 47 Ind. 274 ; People v. Carpenter, 24 N. Y. 86 ; People ex rel. Peck v. City of Los Angeles, 154 Cal. 220, 97 Pac. 311 ; Devore's Appeal, 56 Pa. 163 ; and cases in note 11. 15 State V. City of Waxahachie, 81 Tex. 626, 17 S. W. 348; VEST- AL V. LITTLE ROCK, 54 Ark. 321, 15 S. W. 891, 11 L. R. A. 778, Cooley, Cas. Mun. Corp. 67 ; Vogel v. Little Rock, 55 Ark. 618, 19 S. W. 15 ; ■ Blanchard v. Bissell, 11 Ohio St. 96; City of Evansville v. Page, 23 Ind. 525 ; Smith v. Sherry, 50 Wis. 210, 6 N. W. 561 ; Hurla V. Kansas City, 46 Kan. 738, 27 Pac. 143; In re Sadler (Appeal of § 32) TEBEITOEIAL INCKEASE OK DECREASE 103 "contiguous" is meant such lands as touch the municipal boundaries, while "adjacent" may include those lying near to, but not actually touching, the existing boundary of the mu- nicipality.^® Accordingly it has been decided that a city comprising two square miles of territory cannot annex an area of ten square miles, including farms and unoccupied lands; ^^ nor can two square miles of territory, containing two settlements of people, separated by unoccupied farming lands not connected by lines of buildings or other improvement, be annexed to a municipal corporation ; ** nor lands occupied by the owner exclusively as a florist and farmer, to which no streets, or municipal im- provements extend, and which the lines of settlement have not reached.^* It has also been held that an unoccupied tract of land cannot be added to the territory of a village merely for the purpose of increasing the tax list and village rev- enue,"" but that when such lands are platted and held for Brlnton) 142 Pa. 511, 21 Atl. 978; In re Heidler, 122 Pa. 653, 16 Atl. 97 ; City of Emporia v. Smith, 42 Kan. 433, 22 Pac. 616 ; Union Pac. Ry. Co. V. City of Kansas City, 42 Kan. 497, 22 Pac. 633. 16 Hurla V. Kansas City, 46 Kan. 738, 27 Pac. 143 ; City of Em- poria V. Smith, 42 Kan. 433, 22 Pac. 616; City of East Dallas v. State, 73 Tex. 371, 11 S. W. 1030; In re Borough of Alliance, 7 North Co. R. (Pa.) 396. Territory may be contiguous to the municipality, though it is sep- arated from it by a river. City of Delphi v. Startzman, 104 Ind. 343, 3 N. E. 937 ; Vogel v. City of Little Rock, 54 Ark. 335, 15 S. W. 836. 17 State ex rel. Taylor t. Eidson, 76 Tex. 302, 13 S. W. 263, 7 L. B. A. 733. 18 In re Borough of Larksville, 7 Kulp (Pa.) 84. Two tracts which merely corner on each other, or two tracts with a strip of 50 feet wide included merely to connect them, are not contiguous. Wild v. People, 227 111. 556, 81 N. E. 707. 18 VESTAL V. LITTLE ROCK, 54 Ark. 321, 15 S. W. 891, 11 L. R. A. 778, Cooley, Cas. Mun. Corp. 67. 2 Village of Hartington v. Luge, 33 Neb. 623, 50 N. W. 957. In this case the Nebraska Supreme Court decided against the annexa- tion of all lots not subdivided, and the court said that "the principal benefit in this case would be to the village by adding to the tax- able property therein, but this of itself is not sufficient." Where 75 or 80 per cent, of the land included in the petition for the incor- 104 ALTERATION AND DISSOLUTION (Ch. 4 sale for use as town lots, or held and sold as town property, they may be annexed to the corporation.^^ They may also be annexed when they are needed for any proper municipal pur- pose, such as sewer, gas, or water,^^ or to supply residence sites for citizens,^ ^ or when they furnish a present abode for a large number of persons, or are valuable, for prospective town uses.^* It is no objection to the compulsory annexation of contigu- ous territory that it will be brought under increased taxation without the consent of the owner, in order to pay, not only current, expenses of the municipality, but also pre-existing in- debtedness.* ° It is presumed that the municipal benefits con- poration of a town was agricultural and pastoral lands, the incorpo- ration was invalid. Judd v. State, 25 Tex. Civ. App. 418, 62 S. W. 543. 21 Strosser v. Ft. Wayne, 100 Ind. 443 ; Taylor v. Ft. Wayne, 47 Ind. 274; VESTAL v. LITTLE ROCK, 54 Ark. 321, 15 S. W. 891, 11 L. R. A. 778, Oooley, Cas. Mun. Corp. 67; Union Pac. Ry. Co. v. Kansas City, 42 Kan. 497, 22 Pac. 683 ; Town of Cicero v. Williamson, 91 Ind. 541. General laws authorizing councils of cities and trustees of towns, by resolution, without notice, to annex contiguous territory which has been platted into lots, are constitutional. Paul v. Town of Walk- erton, 150 Ind. 565, 50 N. E. 725. 2 2 See Elliott, Mun. Corp. § 51; Langley v. City Council of . Au- gusta, 118 Ga. 590, 45 S. E. 486,. 98 Am. St. Rep. 183. The general rule is that municipal corporations cannot exercise their powers beyond their own limits, but there are some exceptions ; as, for example, to provide for the discharge of sewage. City of Coldwater v. Tucker, 36 Mich. 474, 24 Am. Rep. 601. 2 3 Taylor v. Ft. Wayne, 47 Ind. 274; Collins v. City of New Albany, 59 Ind. 896; VESTAL v. LITTLE ROCK, 54 Ark. 321, 15 S. W. 891, 11 L. R. A. 778, Oooley, Casi Mun. Corp. 67; Tilford v. City of Ola the, 44 Kan. 721, 25 Pac. 223 ; City of Plattsburg v. Riley, 42 Mo. App. 18. 24 Vogel V. Little Rock, 55 Ark. 609, 19 S. W. 13 ; VESTAL v. LIT- TLE .ROCK, 54 Ark. 321, 15 S. W. 891, 11 L. R. A. 778, Oooley, Cas. Mun. Corp. 67. But see WoodrufE v. Eureka Springs, 55 Ark. 618, 19 S. W. 15, where the court expresses doubt as to whether annexation could be justified by the city for the sole purpose of using the ter- ritory proposed to be annexed for the establishment and mainte- nance of waterworks upon it See Glover v. Terre Haute, 129 Ind. 593, 29 N. E. 412. 2^Hollister v. City of Rochester, 41 Misc. Rep. 559, 85 N. Y. Supp. 147. § 32) TEEEITOEIAL INCKEASE OB DECKEA8E 105 f erred have been. purchased with the funds represented by thii indebtedness, and that they will compensate the newly annexed addition for the increase of taxation.^® But this is not a ques- tion for the courts. It belongs to the Legislature to ascertain and determine what territory shall be annexed.^' Diminution of Territory of Municipality. The same inherent authority of the legislative assembly by which it enlarges boundaries may also be exercised in dimin- ishing municipal boundaries by excision of a part of the ter- ritory.^* This, too, may be done without consulting the mu- se Lake Erie & W. E. Co. v. Alexandria, 153 Ind. 521, 55 N. E. 435. An act providing that certain territory annexed to a city shall not receive the benefit of police, fire, and light protection for 10 years is invalid for the reason that all parts of a city are entitled to the same advantages. Jones v. City of Memphis, 101 Tenn. 188, 47 S. W. 138. See Penete v. City of Frankfort, 101 Ky. 534, 41 S. W. 1011. 27 Girard v. Philadelphia, 7 Wall. 1, 19 L. Ed. 53 ; Edmunds v. Gookins, 20 Ind. 477; Morford v. Unger, 8 Iowa, 82; Inhabitants of Gorham v. Inhabitants of Springfield, 21 Me. 59 ; Wade v. City of Richmond, 18 Grat. (59 Va.) 583; Cheaney v. Hooser, 9 B. Mon. (Ky.) 330 ; City of St. Louis v. Allen, 13 Mo. 400 ; Norris v. Mayor, 1 Swan (Tenn.) i64; Chandler v. City of Boston, 112 Mass. 200; Lay ton v. City of New Orleans, 12 La. Ann. 515; Smith v. McCarthy, 56 Pa. 359. In Lake Erie & W. R. Co. v. Alexandria, 153 Ind. 521, 55 N. E. . 435, an extension of the city Umits so as to embrace a tract across which a railroad ran, on which there were standing cars infest- ed with tramps, and the extension was made for the purpose of attordlug police protection to the portion, was held not unreasonable. An extension of the limits of a city is not unreasonable when the territory annexed thereby is nearly all improved, and necessary for drainage and police purposes. City of Kansas City v. Stegmiller, 151 Mo. 189, 52 S. W. 723 ; Parker v. Zeisler, 73 Mo. App. 537 ; Village of Syracuse v. Mapes, 55 Neb. 738, 76 N. W. 458. 2 8 MT. PLEASANT v. BECKWITH, 100 U. S. 514, 25 L. Ed. 699, Cooley. Cas. Mun. Corp. 74; Girard v. Philadelphia, 7 Wall. 1, 19 L. Ed. 53 ; Inhabitants of North Yarmouth v. Skillings, 45 Me. 133, 71 Am. Dec. 530 ; Johnson v. Incorporated Town of Forest CJity, 129 Iowa, 51, 105 N. W. 353 ; . Miller v. City of Pineville, 121 Ky. 211, 89 S. W. 261 ; Meek v. State, 172 Ind. 654, 88 N. E. 299, 89 N. B. 307 ; Brenke v. Borough of Belle Plaine, 105 Minn. 84, 117 N. W. 157; True V. Davis, 133 111. 522, 22 N. E. 410, 6 L. R. A. 266; Daly v. Morgan, 69 Md. 460, 16 Atl. 287, 1 L. B. A. 757; Morgan v. Beloit, 7 106 JiLTEEATION AND DISSOLUTION (Ch. i •nicipality, or that portion of its citizens thus summarily de- prived of municipal privileges, unless forbidden by constitu- tional limitations. In short, this power of increase and diminution of municipal territory is plenary, inherent, and discretionary in the Legislature, and, when duly exercised, cannot be revised by the courts.^* DIVISION OF MUNICIPAL TERRITORY 33. The Legislature may, without the consent of the people of a municipality, divide the same into two sepa- rate and distinct municipal corporations. This power has been rarely exercised, as the tendency of urban population is rather to unite than separate into distinct municipalities, and this tendency is usually fecognized and re- spected by legislative bodies. That the power exists, how- ever, is well 'settled.^" It is but a part of that general au- thority which the Legislature possesses over all municipal cor- porations as agencies of the government. CONSOLIDATION 34. It is competent for the Legislature, unless forbidden by the Constitution, to unite two or more distinct mu- nicipalities having contiguous territory into a sin- gle municipal corporation, without the consent of those corporations or the people thereof. Wall. 613, 19 L. Ed. 203 ; Thompson v. Abbott, 61 Mo. 176 ; Cooley, Const. Lim. (6th Ed.) p. 228, and cases cited in note 2. See City of Indianapolis v. Ritzinger, 24 Ind. App. 65, 56 N. E. 141; Christ v. Webster City, 105 Iowa, 119, 74 N. W. 743, as to discretionary power. 29 Williams v. Nashville, 89 Tenn. 487, 15 S. W. 364. See Cooley, Const. Lim. (6th Ed.) p. 228, note 1, and cases therein cited. Also State ex rel. Board of Com'rs of Polk County v. Demann, 83 Minn. 331, 86 N. W. 352 ; City of Guthrie v. Wylie, 6 Okl. 61, 55 Pac. 103. so Hartford Bridge Co. v. Town of East Hartford, 16 Conn. 149 ; § 34) CONSOLIDATION 107 The consolidation of two separate corporations into a sin- gle one is but another illustration of the inherent and plenary power possessed by the Legislature to create, control, and dis- solve all municipal corporations.'^ Since the Legislature might by one act dissolve two existing contiguous corporations, and by another act create another municipality comprising the same territory, in the exercise of its conceded powers it may, of course, effect the same result by a single act, without cir- cumlocution.^^ If the Legislature shall so choose to enact, one of these corporations may be merged into the other,'' or both may be consolidated into a new and distinct corpora- tion.'* It is usual to submit this question of consolidation by legislative enactment to a vote of the people of the several corporations thus to be united ;'° but, unless the Constitu- tion so requires, it is competent for the Legislature to make a consolidation without consulting the wishes of the people.'" Washburn Waterworks Co. v. City of Washburn, . 129 Wis. 73, 108 N. W. 194. 31 MT. PLEASANT v. BEGKWITH, 100 U. S. 514, 25 L. Ed. 699, Cooley, Cas. Mun. Corp. 74 ; Morgan t. Beloit, 7 Wall. 613, 19 L. Ed. 203; Gisard v. Philadelphia, 7 Wall. 1, 19 L. Ed. 53; True v. Davis, 133 111. 522, 22 N. E. 410, 6 L. R. A. 266; Daly v. Morgan, 69 Md. 460, 16 Atl. 287, 1 L. R. A. 757 ; Thompson v. Abbott, 61 Mo. 176. 8 2 Cooley, .Const. Lim. (6th Ed.) 228, note. Under Code Ala. 1907, § 1126, a municipality cannot be consolidated with another where territory belonging to neither intervenes. State ex rel. McKinley v. Martin, 160 Ala. 181, 48 South. 847. Under Laws Kan. 1886, c. 63, § 1, providing for the consolidation of cities lying adjacent to each other "and not more than three-fourths of one mile apart," the con- solidation of three cities was not illegal because one was not con- tiguous to the other two, the distance separating them being less than three-fourths of a mile. State v. City of Kansas City, 50 Kan. 508, 31 Pac. 1100. 3 3 Adams v. City of Minneapolis, 20 Minn. 484 (Gil. 438). Si Tied. Mun. Corp. § 58. 36 Village of North Springfield v. City of Springfield, 140 111. 165, 29 N. E. 849 ; Warren v. City of Charlestown, 68 Mass. (2 Gray) 84 ; State ex rel. Cole v. City of. New Whatcom, 3 Wash. 7, 27 Pac. 1020. And see cases cited in note 26. 3 6 City of New Orleans v. Waterworks Co., 142 U. S. 79, 12 Sup. Ct. 142. 35 L. Ed. 943 ; State v. City of Cincinnati, 52 Ohio St. 419, 40 N. E. 508, 27 L. R. A. 737; State v. Kolsem, 130 Ind. 434, 29 N. 108 ALTERATION AND DISSOLUTION (Ch. 4 The act of consolidation in such cases is said to be an official and peremptory expression of the Legislature that such con- solidation will promote the public welfare, and from this enactment there is no appeal' ' OPERATION AND EFFECT OF ANNEXATION, DIVISION, OR CONSOLIDATION 35. On tiie alteration of the boundaries of a municipal cor- poration by annexation, division, or consolidation, the rights, powers, and liabilities of the original corporation are not affected, except in so far as they may be changed by the legislative act by which the alteration is effected. When the boundaries of a municipal corporation have been altered by annexation, the annexed territory comes under the power, control, and jurisdiction of the municipality for all purposes.^* The proceeding by which annexation was efifected cannot be collaterally attacked.^' If the whole territory of one municipality is annexed to another, the annexed municipality is destroyed.*" And when existing corporations are consoli- dated and a new corporation thereby created, the new corpo- E. 595, 14 L. R. A. 566; Essex Public Road Board v. Skinkle, 140 U. S. 334, 11 Sup. Ct. 790, 35 L. Ed. 446 ; Madry v. Cox, 73 Tex. 538, 11 S. W. 541 ; Smith v. People, 154 111. 58, 39 N. E. 319 ; State ex i-el. Fremont, E. & M. V. R. Co. v. Babcock, 25 iNeb. 709, 41 N. W. 654; City of Quiney v. O'Brien, 24 111. App. 591 j In re Strand (Oal.) 21 Pae. 654 ; In re Canal St., 18 R. I. 129, 25 Atl. 975 ; City of Richmond v. Richmond & D. R. Co., 21 Grat. (62 Va.) 604; Common Council of City of Muskegon v. Gow, 94 Mich. 453, 54 N. W. 170 ; Commonwealth V. Macferron, 152 Pa. 244, 25 Atl. 556, 19 L,. R. A. 568. 3 7 Smith, Mun. Corp. § 407. s 8 Trustees of Schools v. Board of School Inspectors of City of Peoria, 115 111. App. 479 ; Ladd v. City of Portland, 32 Or. 271, 51 Pac. 654, 67 Am. St. Rep. 526. 8 8 Hatch V. Consumers' Co., 17 Idaho, 204, 104 Pac. 670; Pavey V. Braddock, 170 Ind. 178, 84 N. E. 5 ; Powell v. City of Scranton, 227 Pa. 604, 76 Atl. 505 ; Gardner v. Benn, 81 Kan. 442, 105 Pac. 435. *o Stroud V. Stevens Point, 37 Wis. 367; Schriber v. Town of Lang- dale, 66 Wis. 616, 29 N. W. 547. § 35) EFFECT OF ANNEXATION, DIVISION, ETC. 109 ration takes the. place of th'e old corporation, which thereup- on ceases to exist, and it can no longer exercise any corpo- rate power, unless its corporate existence is continued for some purpose.*^ In the case of detachment of territory; so much of the territory as is detached goes back under state control'.** Adjustment of Rights and Liabilities On the annexation of territory to a municipality, the liabil- ities of the original corporation are chargeable on the annexed territory,** which becomes liable for the payment of the pre- existing debts.** The imposition of these burdens on the an- nexed territory is supported by the equitable consideration that values have been increased and that the newly incorporated inhabitants acquire an interest in the public property purchased by previous bond issues and taxation.*' Where a municipality is divided the Legislature may appor- tion the, burden of indebtedness between the two and deter- mine which portion shall be borne by each, and may at the same time provide for a division of the property of the orig- inal municipality between the two parts thereof.** The 41 Bloomfield Tp. v. Borough of Glen Eidge, 54 N. J. Eq. 276, 33 Atl. 925. 42 People V. Oakland Water Front Co., 118 Cal. 234, 50 Pac. 305. And see Deason v. Dixon, 54 Miss. 585, holding that the power of a city to sell for delinquent taxes land which was within the bound- aries when the taxes fell due, but which by sale day has been de- tached, is lost if no provision is made saving the rights of the city. 43 Cash V. Town of Douglasville, 94 Ga. 557, 20 S. E. 438; Smith V. City of Saginaw, 81 Mich. 123, 45 N. W. 964; Toney v. City of Macon, 119 Ga. 83, 46 S. E. 80; White v. City of Atlanta, 134 Ga. 3B2, 68 S. E. 103 ; Ghalstran v. Board of Education of Township High School Dist. No. 13, 244 111. 470, 91 N. E. 712. 44 Blanchard v. Bissell, 11 Ohio St. 96 ; STATE v. CITY OF CIN- CINNATI, 52 Ohio St. 419, 40 N. E, 508, 27 L. R. A. 737, Cooley, Cas. Mun. Corp. 71; Madry v. Cox, 73 Tex. 538, 11 S. W. 541; Pence v. City of Frankfort, 101 Ky. 534, 41 S. W. 1011; White v. City of Atlanta, 134 Ga. 532, 68 S. E. 103. And see Gottschalk v. Becher, 32 Neb. 653, 49 N. W. 715. 46 Toney v. City of Macon, 119 Ga. 83, 46 S. E. 80. 46 Town of Sanbornton v. Town of Tilton, 53 N. H. 438; Town of 110 ALTERATION AND DISSOLUTION (Oil. 4 power to divide municipalities is strictly legislative, and the power to prescribe the rules by which the property and liabili- ties of the old corporation shall be divided being incident to the pow«r to divide the territory is also strictly legislative.*'' No general rule can be laid down by which an equal and just apportionment can be made, but the apportionment must be founded on the circumstances of each particular case, and statutory provisions making such apportionment if not in vio- lation of any constitutional right, are in all respects final.** In the absence of any apportionment by the Legislature, the old corporation, not being abolished, is liable for all the debts, and retains all the property," including property which by the change of boundaries falls within the new corporation."" When two mjmicipalities are consolidated the new corpora- Milwaukee V. City of Milwaukee, 12 Wis. 93; JOHNSON v. CITY OF SAN DIEGO, 109 Cal. 468, 42 Pac. 249, 30 L. K. A. 178, Cooley, Gas. Mun. Corp. 83; Londonderry t. Derry, 8 N. H. 320; Inhabit- ants of Orvil Tp. V. Borough of Woodcliff, 61 N. J. Law, 107, 38 Atl. 685 ; Hartford Bridge Co. v. Town of East Hartford, 16 Conn. 149; Town of South Portland v. Town of Cape Elizabeth, 92 Me. 328, 42 Atl. 503, 69 Am. St. Rep. 502 ; State ex rel. Board of Com'rs of Polk County v. Demann, 83 Minn. 331, 86 N. W. 352; Town of Humboldt v. City of, Barnesville, 83 Minn. 219, 86 N. W. 87; RUM- SBY V. TOWN OP SAUK CENTRE, 59 Minn. 316, 61 N. W. 330, Cooley, Gas. Mun. Corp. 33 ; Hurt v. Hanj^lton, 25 Kan. 82. *' State ex rel. Board of Com'rs of Polk County v. Demann, 83 Minn. 331, 86 N. W. 352 ; Bristol v. Town of New Chester, 3 N. H. 524. *8 State ex rel. Board of Com'rs of Polk County v. Demann, 83 Minn. 331, 86 N. W. 352. 4 Inhabitants of Bloomfield Tp. v. Borough of Glen Ridge, 55 N. J. Eq. 505, 37 Atl. 63; Town of South Portland v. Town of Cape Elizabeth, 92 Me. 328, 42 Atl. 503, 69 Am. St. Rep. 502 ; Inhabitants of Frankfort v. Inhabitants of Winterport, 54 Me. 250; Town 6f Milwaukee v. City of Milwaukee, 12 Wis. 93 ; Brewis v. City of Du- luth, 13 Fed. 334; State ex rel. Minnesota Ry. Const. Co. v. Lake City, 25 Minn. 404. But in the case of common lands each munici- pality takes in the division such portion thereof as lies within its limits. Town of North Hempstead v. Town of Hempstead, Hopk. Ch. (N. Y.) 288; City of Lynn v. Inhabitants of Nahant, 113 Mass. 433. And see Prescott v. Town of Lennox, 100 Tenn. 591, 47 S. W. 181. 5 City of Winona v. School Dist. No. 82, 40 Minn. 13, 41 N. W. 539, 3 L. R. A. 46, 12 Am. St. Rep. 687. § 35) EFFECT OF ANNEXATION, DIVISION, ETC. HI tion ordinarily succeeds to all the rights, property and liabili- ties of the old corporations.'^ But as in the case of division of territory it is competent for tlie Legislature in case of con- solidation to provide for the disposition of the municipal funds in the several corporate treasuries, or past due at the date of the consolidation ; "^ and if it sees fit it may charge the in- debtedness of each municipality to the property within its lim- its." Continuing Operation of Ordinances Where territory is annexed to the municipality, it becomes at once, without express legislative or municipal action, subject to the laws and ordinances by which the municipality is gov- erned.'* When there has been consolidation, until the com- mon council of the consolidated city shall enact a code of or- dinances for the government of the new municipality, the or- dinances of the two former cities will be and remain in force within the territory of the old cities, respectively." Bi MT. PLEASANT v. BECKWITH, 100 U. S. 514, 25 L. Ed. 699, Cooley, Cas. Mun. Corp. 74 ; Inhabitants of North Yarmouth v. Skil- lings, 45 Me. 133, 71 Am. Dec. 530; Winters v. George, 21 Or. 251, 27 Pac. 1041 ; Town of Humboldt v. City of Barnesville, 83, Minn. 219, 86 N. W. 87; Thompson v. Abbott, 61 Mo. 176; Smith v. City of Saginaw, 81 Mich. 123, 45 N. W. 964 ; Stone v. Charlestown, 114 Mass. 214; Dousman v. Milwaukee, 1 Pin. (Wis.) 81; Watson v. Pamlico County Com'rs, 82 N. C. 17 ; De Mattos v. New Whatcom, 4 Wash. 127, 20 Pac. 933. 5 2 Burlington Sav. Bank v. City of Clinton (0. C.) 106 Fed. 269; Lake Charles Ice, Light & Waterworks Co. v. Lake Charles City, 106 La. 65, 30 South. 289. ^ Bs De Mattos t. City of New Whatcom, 4 Wash. 127, 29 Pac. 933; Pennsylvania Co. v. City of Pittsburgh, 226 Pa. 322, 75 Atl. 421, 134 Am. St. Rep. 1063. 5 4 People V. Detroit United Ey., 162 Mich. 460, 127 N. W. 748, 139 Am. St. Eep. 582; Deneen v. Houghton Co. St. By. Co., 150 Mich. 235, 113 N. W. 1126, 13 Ann. Cas. 134 ; St. Louis Gaslight Co. v. City of St. Louis, 46 Mo. 121. 5 5 Camp V. Minneapolis, 33 Minn. 461, 23 N. W. 845; Village of North Springfield v. Springfield, 140 111. 165, ,29 N. E. 849; Vogel v. Little Bock, 55 Ark. 609, 19 S. W. 13 ; Smith v. People ex rel. Ma- lone, 154 111. 58, 39 N. E. 319. 112 ALTERATION AND DISSOLUTION (Ch. 4 REPEAL OF CHARTER AND DISSOLUTION 36. The Legislature may, at its plesisure, repeal the charter of a municipal corporation, and thereby terminate its existence. The power of the Legislature to dissolve a municipal cor- poration and thus terminate its existence is recognized in nu- merous decisions."" Here, again, we have another illustra- tion of the sole authority of the Legislature in matters of mu- nicipal corporations. It can create, regulate, and destroy, and there is no other body or department of government which possesses this power."' The government possesses this power in England, but the king does not.°* His prerogative is to create. He cannot de- stroy. Parliament alone is omnipotent."® In England munici- 5 6 Jones V. Pensacola, Fed. Cas. No. 7,488; State v. Jennings, 27 Ark. 419 ; Town of Montpelier v. Town of East Montpelier, 29 Vt. 12, 67 Am. Dec. 748 ; Burk v. State, 73 Tenn. 349 ; State ex rel. Doug- las V. Village of Keads, 76 Minn. 69, 78 N. W. 883. B7 Hill V. Anderson, 122 Ky. 87, 90 S. W. 1071. "All our thoughts and notions of civil government are inseparably associated with cities, counties, 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 the organic law. They are, however, subject to control and regula- tion by the Legislature. It may enlarge or circumscribe their terri- torial limits, increase or diminish their members, separate them into parts, and annex some of the parts to others." People v. Draper, 15 N. Y. 561, per Brownf J. But the Legislature may by general law provide for disincorporation of municipalities. See Mintzer v. Schil- ling, 117 Cai. 361, 49 Pac. 209; State ex rel. Alsop v. Husband, 26 Ind. 308. 58 1 Beach, Pub. Corp. § 25; 2 Kent, Comm. 305; Coke, Litt. 176, note; Rex v. Amory, 2 Term R. 515. See, also, Eastman v. Mere- dith, 36 N. H. 284, 72 Am. Dec. 302; City of St. Louis v. Allen, 13 Mo. 400. 59 Glover, Mun. Corp. 24 ; 1 Dill. Mun. Corp. S 33 ; 1 Kyd, Corp. 61; Willc. Mun. Corp. 63, 64; Coke, Utt. 176; Rex v. Amory, 2 Term R. 515; 2 Kent, Comm. 305; Regents of University v. Williams, 9 Gill & J. 365, 409, 31 Am. Dec. 72. § 36) BEPEAL OF CHARTER AND DISSOLUTION 113 pal corporations might also be dissolved by the loss of an inte- gral part thereof,*" or by the surrender of franchises," or by a forfeiture of its charter judicially decreed in proceedings by scire facias or quo warranto.'^ These last two methods cer- tainly are not recognized in America.*^ The Legislature hav- ing ordained that there shall be a corporation, the citizens thereof cannot nullify that edict by a surrender of the fran- chise; nor by neglect to exercise the powers and privileges conferred by the charter can they subject the corporation to forfeiture of its franchise.^ The loss of an integral part of a municipal corporation would practically destroy it, as if the people should all remove from the territory,* ° or it should be swallowed by an earthquake or volcanic eruption. «o Rex V. Morris, 3 East, 215 ; Rex v. Stewart, 4 East, 17; Rex v. Pasmore, 3 Term R. 241; Regina v. i^ewdley, 1 P. Wms. 207; Ban- bury Case, 10 Mod. 346 ; Rex v. Tregony, 8 Mod. 111. 81 Rex V. Osbourne, 4 East, 326; Rex v. MUler, 6 Term R. 268; Howard's Case, Hut 87; Grant, Corp. 306. 82 Rex V. Grosvenor, 7 Mod. 199 ; Smith's Case, 4 Mod. 55 ; Rex V. Saunders, 3 East, 119; Rex v. Kent, 13 East, 220; Attorney Gener- al V. Shrewsbury, 6 Beav. 220. 8 3 State V. Waggoner, 88 Tenn. 290, 12 S. W. 721; Luebrman v. Taxing Dist. of Shelby, 2 Lea (Tenn.) 425 ; Williams v. Nashville, 89 Tenn. 487, 15 S. W. 364. 6 4 Welch V. Ste. Genevieve, Fed. Cas. No. 17,372; Butler v. Walk- er, 98 Ala. 358, 13 South. 261, 39 Am. St. Rep. 61 ; Hill v. Anderson, 122 Ky. 87, 90 S. W. 1071; Cain v. Brown, 111 Mich. 657, 70 N. W. 337; State ex rel. Hoya v. Dunson, 71 Tex. 65, 9 S. W. 103;' Buford V. State, 72 Tex. 182, 10 S. W. 401 ; Morris v. State ex rel. Guessett, 65 Tex. 53. In the last-named case the court said : "It is extreme- ly doubtful whether a municipal corporation can, by a mere dis- claimer, surrender a franchise in which not only the corporation, but a large portion of the state's population residing within the city's limits, as well as of the commercial world, are interested." In Ham- bleton V. Dexter, 89 Mo. 188, 1 S. W. 234, it was held that franchises granted to municipal corporations cannot be surrendered by them. But see Cincinnati, N. O. & T. P. Ry. Co. v. Baughman, 116 Ky. 479, 76 S. W. 351, holding that a municipal charter was forfeited by non- user for a period of 17 years. 65 Tied. Mun. Corp. § 38. COOL.MUN.COKP. — 8 114 ALTERATION AND DISSOLUTION (Ch. 4 Dissolution — Form Historically, however, and legally too, the only form of dis- solution known to American municipalities is legislative."" The motive, manner, time, or form of the enactment is not material. The legislative motive cannot be questioned judi- cially.*'' The age or youth of the corporation will not pro- tect it. The form of the act of repeal is immaterial, if it com- ply with the constitutional requirement."^ It may be special or general, as legislative wisdom shall decide. Whenever and however, and from whatever motive or purpose, the Legis- lature shall repeal the charter of a municipal corporation, its life is ended.< The limitations upon this legislative power, .66 Luehrman v. Taxing Dist. of Shelby, 2 Lea (Tenn.) 425; Wil- liams V. NashvUle, 89 Tenn. 487, 15 S. W. 364 ; State v. Wilson, 12 Lea (Tenn.) 246 ; State v. Waggoner, 88 Tenn. 290, 12 S. W." 721. in People ex rel. Atty. Gen. v. Hill, 7 Cal. 97, the court said: "And as a city may, by legislative enactment, spring from the body of the county, being tbe first subdivision of the territory and political pow- er of the state, there is no reason in law why it may not be resolved back to its original elements, or why the power that has called this political being into existence may not again destroy it. There is no limitation on the power of the Legislature in this respect, and econo- my and convenience may often require that an act incorporating a city should be repealed, and the inhabitants thereof placed in their original situation." See, also, State v. Hamilton, 40 Kan. 323, 19 Pac. 723 ; State v. Osborn, 36 Kan. 530, 13 Pac. 850 ; State ex rel. Hunt v. Meadows, 1 Kan. 90 ; Duncombe v. Prindle, 12 Iowa, 1. sf "Restraints on the legislative power of control must be found in the Constitution of the state, or they must rest al'one in the legis- lative discretion." Cooley, Const. Lim. (6th Ed.) p. 229. "Where a corporation is the mere creature of legislative will, es- tablished for the general good, and endowed by the state alone, the Legislature may, at pleasure, modify the law hy which it was creat- ed. For in that case there would be but one party afiEected — the government itself — and therefore not a contract within the meaning of the Constitution. * * * " Montpeller Academy Trustees v. George, 14 La. 406, 33 Am. Dec. 585. It the legislative action in such cases of repeal operates injuriously to the municipalities or to their inhabitants, the remedy is" not with the courts. They have no power to interfere. City of St. Louis v. Allen, 13 Mo. 400. 68 As to the power to repeal the charter and the method of repeal, see post, § 44. 6 9 Meriwether v. Garrett, 102 U. S. 472, 26 L. Ed. 197: Rees v. Wa- § 36) REPEAL OF CHARTER AND DISSOLUTION 115 the exercise of which may prove drastic and destructive of the interests of individuals and communities unless directed by prudence and caution, are of two kinds: (a) Positive inhibi- tions expressed in the Constitution; and (b) property rights vested or protected by constitutional guaranties which would be destroyed or impaired by such legislation/" A legislative act repealing a municipal charter, when forbidden by the Con- _ stitution, would, of course, be void, and would not effect or au- thorize a dissolution of the corporation; but the interests of the people of the municipality or of its creditors in its quasi' private property would not prevent a repeal of the charter, and the consequent dissolution of the corporation. Its estate may then be administered, and its assets equitably applied and distributed.^- Usually the means and method of this admin- istration are provided for in the statute which enacts the dis- solution of the corporation. The municipal corporation, being dual in its nature, necessarily has powers, privileges, and prop- erty of a purely local or private character, not subject to the unlimited legislative power, but exempt therefrom in some tertown, 19 Wall. 107, 22 L. Ed. 72; Amy v. Watertown, 130 U. S. 301, 9 Sup. Ct. 530, 32 L. Ed. 946; Heine v. Levee Com'rs, 19 Wall. 655, 22 L. Ed. 223 ; Amy v. Selma, 77 Ala. 103 ; Luehrman v. Tax- ing Dist. of Shelby, 2 Lea (Tenn.) 425 ; City of Memphis v. Water Co., 5 Heisk. (Tenn.) 495; Lynch v. Laflaad, 4 Cold. (Tenn.) 96. In the case of Luehrman v. Taxing Dist., supra, Cooper, J., said: "Being created as instrumentalities or arms of the government, they cannot be continued in that capacity whenever the public exigency, of which the Legislature alone is judge, demands that they should cease to act." See, also, People v. Morris, 13 Wend. (N. Y.) 323, 331 ; PEO- PLE V. HUKLBDT ex rel. LE ROY, 24 Mich. 44, 9 Am. Rep. 103, Cooley, Cas. Mun. Corp. 36. The express repeal of an existing char- ter does not revive an original charter, but the municipality ceases to exist as soon as the repeal takes effect. State ex rel. Douglas v. Vil- lage of Reads, 76 Minn. 69, 78 N. W. 883. 7 Morris v. State ex rel. Gussett, 62 Tex. 728; Board of Council- men of City of Frankfort v. Mason, 100 Ky. 48, 37 S. W. 290. 71 Luehrman v. Taxing Dist. of Shelby, 2 Lea (Tenn.) 425; City of Cincinnati v. Cameron, 33 Ohio St. 336 ; PEPIN TP. v. SAGE, 129 Fed. 657, 64 C. 0. A. 169, Cooley, Cas. Mun. Corp. 89; Chalstran V. Board of Education of Township High School Dist. No. 13, 244 111. 470, 91 N. E. 712 ; Ellerman v. McMains, 30 La. Ann. 190, 31 Am. Rep. 218. 116 ALTBEATION AND DISSOLUTION (Cll. 4 states by a provision made for the protection of the communi- ty, in others by one made for the protection of creditors whose rights are always and everywhere protected by the contract clause of the federal Constitution, and the decision in the Dartmouth College Case applying and enforcing the same.''^ The citizens and creditors of the corporation, having these vested rights in certain property, franchises, and powers of the corporation, may protect and assert them through recognized remedies in the courts of law and equity, state or federal. If creditors have liens upon any of the municipal property, they may pursue their remedy in the courts after dissolution of the municipality as well as before. If the Legislature fails to provide for them, the courts of justice are open to afford them remedy and relief. The act of the Legislature effects the dissolution of the corporation. The pursuit. of these remedies by the citizens and creditors is simply the administration of the estate of the deceased.''* REINCORPORATION 37. The Legislature may, in the exercise of its general pow- ers over municipal corporations, reorganize or re- incorporate a municipality, or may provide by stat- ute for the corporation to surrender its charter and reorganize under a new charter. A mode of changing the constitution of a municipality, dif- fering from either amendment or repeal of the charter, exists in many, if not all, the states, in the form of provisions per- 7 2 1 Dill. Mun. Corp. §§ 66-69. 7 8 The measure of this relief is not full or certain on account of the public nature of the corporation, the legislative control, and the sovereignty of the state. Meriwether v. Garrett, 102 U. S. 472, 26 L. Ed. 197 ; Seibert v. Lewis, 122 U. S. 284, 7 Sup. Ct. 1190, 30 L. Ed. 1161; Port of Mobile v. Watson, 116 U. S. 289, 6 Sup. Ct. 398, 29 L. Ed. 620; Broughton v. Pensacola, 93 U. S. 266, 23 L. Ed. 896; Amy V. Selma, 77 Ala. 103 ; MT. PLEASANT v. BEOKWITH, 100 U. S. 514, 25 L. Ed. 699, Cooley, Gas. Mun. Corp. 74; Amy v. Watertowii, 130 U. S. 301, 9 Sup. Ct. 530, 32 L. Ed. 946. § 37) BEINCORPOBATION ' 117 mitting a municipal corporation, either with or without a for- mal surrender of its charter, to reincorporate or adopt a new charter and reorganize under it.''* The two elements of terri- tory and population remaining substantially the same, a new charter is introduced, under which occurs a reorganization of the corporation, thus in law creating a new body, which is sub- stantially the same as the old.'" This two-fold aspect of the new municipality gives rise to certain questions of relation and obligation which have caused some difficulty. As the charter is the essential of municipal existence, the law generally treats the body established under ,the new charter as a separate mu- nicipality; ^* but as the same community continues to exer- cise and enjoy municipal privileges, franchises, and property under the new as under the old organization, the two bodies should, in equity, be treated as identical, or at least the new should be regarded as the successor of the old.'' Under the automatic provisions of the laws of some of the states, where- by municipalities may frame their own charters, the identity of the corporation is preserved in both law and equity; the new charter being in effect an amendment to the old. Legis- lative authority is, of course, essential to enable a municipality to adopt a new charter or to reincorporate.'" Statutes some- 74 Broughton v. Pensacola, 93 U. S. 266, 23 L. Ed. 896; Port of Mo- bile V. Watson, 116 U. S. 289, 6 Sup. Ot. 398, 29 L. Ed. 620 ; Amy v. Selma, 7T Ala. 103; Brennan v. City of Weatherford, 53 Tex. 330, 37 Am. Rep. 758; Reeves v. Anderson, 13 Wash. 17, 42 Pac. 625; Wright V. Overstreet, 122 Ga. 638, 50 S. B. 487 ; Blanchard v. Hart- well, 131 Cal. 263, 63 Pac. 349 ; Somo Lumber Co. v. Lincoln County, 110 Wis. 286, 85 N. W. 1023. 7 5 BROADFOOT v. CITY OF FAYETTEVILLE, 124 N. C. 478, 32 S. E. 804, 70 Am. St. Rep. 610, Cooley, Cas. Mun. Corp. 93; W;ash- burn Waterworks Co. v. City of Washburn, 129 Wis. 73, 108 N. W. 194. 76 City of JefEerson v. Edwards, 37 Mo. App. 617. 77 Amy V. Selma, 77 Ala. 103 ; BROADFOOT v. CITY OF FAY- ETTEVILLE, 124 N. C. 478, 32 S. E. 804, 70 Am. St. Rep. 610, Cool- ey, Cas. Mun. Corp. 93; Washburn Waterworks Co. v. Washburn, 129 Wis. 73, 108 N. W. 194. 78 State ex rel. Hoya v. Dunson, 71 Tex. 65, 9 S. W. 103. See, also. People v. Bancroft, 2 Idaho, 1077, 29 Pac. 112. 118 ALTERATION AND DISSOLUTION (Ch. 4 times provide, also, for reincorporation or reorganization of ' municipalities- defectively incorporated, or which have at- tempted to incorporate under void acts.''* Effect of Reincorporation On the reincorporation of an existing municipality, there be- ing no substantial change in territory or people, the new? cor- poration may be regarded as identical with, or as the successor of, the old corporation, and in either case it succeeds to all the rights, property, and' obligations of the original municipality.*^? When the inhabitants and territory remain practically the same, ,it will be presumed that the Legislature, in reorganizing the municipality, intended the continued existence of the same corporation ; and in the absence of an express provision to the contrary, the liabilities and property rights of the original cor- poration attach to the reorganized corporation.^^ On reincorporation, the ordinances of the old municipality remain in full f orce,'^ provided they are authorized by the new charter. Only such ordinances as are inconsistent with the new cjiarter become invalid.** 7 8 White V. City of Quanali (Tex. Civ. App.) 27 S. W. 839. 80 Brougliton v. Pensacola, 93 U. S. 266, 23 L.- Ed. 896; Port of Motile V. Watson, 116 U. S. 289, 6 Sup. Ct. 398, 29 L. Ed. 620; Amy V. Selma, 77 Ala. 103 ; , City of Olney v. Harvey; 50 111. 453, 99 Am. Dec. 530; Ross v. Wimtierley, 60 Miss. 345, overruling Port Gibson V. Moore, 21 Miss. 157; Blackburn v. Oklahoma City, 1 Okl. 292, 31 Pac. 782, 33 Pac. 708 ; BROADFOOT v. CITY OF FAYETTEVILLE, 124 N. C. 478, 32 S. E. 804, 70 Am. St. Rep. 610, Cooley, Oas. Mun. Corp. 93 ; RUMSEY v. TOWN OF SAUK CENTRE, 59 Minn. 316, 61 N. W. 330, Cooley, Cas. Mun. Corp. 33; SHAPLEIGH v. CITY OF SAN ANGELO, 167 U. S. 646, 17 Sup. Ct. 957, 42 L. Ed. 310, Cooley, Cas. Mun. Corp. 819. Mandamus will lie to compel a city to pay a judgment rendered against a village of which the city is the legal successor. Lee v. City of Thief River Falls, 82 Minn. 88, 84 N. W. 654. 81 Washburn Waterworks po. v. City of Washburn, 129 Wis. 73, 108 N. W. 194. 82 Ex parte Strahl, 16 Iowa, 369; Ritchie v. City of South Topeka, 38 Kan. 368, 16 Pac. 332 ; Ferrell t. City of Opelika, 144 Ala. 135, 39 South. 249. 8 3Garey v. City of Galveston, 42 Tex. 627; Baader v. Town of Cullman, 115 Ala. 539, 22 South. 19. Ch. 5) THE CHARTER 119 CHAPTER V THE CHARTER 38. Municipal Charters. 39. Form and Contents of Charters. 40. Municipal Powers: Inherent — Express — Implied. 41. Exercise of Powers. 42. Charter Powers Classified. 43. Territorial Limit of Municipal Authority. 44. Amendment and Repeal of Charter. MUNICIPAL CHARTERS 38. A municipal charter, whatever be its form, is a written document constituting the persons residing within a fixed boundary, and their successors, a body cor- porate and politic for and within such boundary, and prescribing the powers, pivileges, and duties of the corporation. "A municipal charter granted by the crown in England is a written instrument in the form of letters patent, with the great seal appended to it, addressed to all the subjects, and constituting the persons therein named, and their successors, a body corporate fqr or within the place therein specified, and prescribing the powers and duties of the corporation thereby created." ^ The power to grant this charter has been called the "flower of the prerogative." " And yet a municipality thus created possesses only the common-law powers and qualities of a corporation. Indeed, royal charters were granted only to organized communities having already a recognized municipal existence.^ Where privileges and powers are to be conferred which are not recognized by the common or statute law — where special and unusual powers are to be granted — an act 1 1 Dill. Mun. Corp. § 82. 2 Willc. Mun. Corp. 25. 3 People ex rel. Shumway v. Bennett, 29 Mich. 451, 18 Am. Rep. 107. 120 THE CHARTER (Ch. & of Parliament is necessary, giving a special charter to the cor- poration.* Moreover, the royal charter is wholly inoperative Until accepted by the persons therein named as incorporators, whereas the parliamentary charter is a public law which all subjects are bound to obey." Excepting only municipalities by prescription and at com- mon law, all municipal corporations in England — even those called municipal corporations by implication — have their mu- nicipal charters. The municipal corporation by implication re- lies upon a royal charter or act of Parliament for its existence and authority. There is an omission, however, in the act or charter to expressly declare the community a corporation ; and so its corporate character must be implied from the charter, and the extent of the powers therein conferred upon it. Mu- nicipal corporations by prescription and implication have been held to exist in the United States.' As has been already pointed out, municipal corporations in the United States, with reference to the mode of their crea- tion, are divisible into two great classes: (^) Corporations created by special act of the Legislature; and (h) corpora- tions organized under general incorporation statutes. Every municipal corporation has; or should have, as a warrant for its existence and authority, some official document issued un- der law by some duly constituted ministerial agent, showing its constitution and the limits of its authority. This document, which is usually called its charter, when issued under a special act, is usually in the form of a duly certified copy of such act, under the great seal of the state; but when issued under the authority of general statutes it may take the form of ei- ther a complete charter, as in the case of self-chartered cities,' or a court decree, or a certificate showing the fact of incor- . * 1 Kyd, Corp. 61 ; Eastman v. Meredith, 36 N. H. 284, 72 Am. Dec 302. 5 Ang. & A. Corp. § 69 ; President, etc., of City of Paterson v. So- ciety for Establishing Useful Manufactures, 24 N. J. Law, 385. See ante, § 15. ^ See ante, § 12, p. 44. § 39) FORM AND CONTENTS OF CHARTER 121 poration for municipal purposes. The charter of the corpora- tion organized under a general law is sometimes authorized to be formulated by a court or board or officer designated in the act, whose function' is ministerial only, and the resulting duty is an intelligent conformation of the general law to the particu- lar corporation by specifying its name and municipal bound- aries, and transcribing the grant of powers contained in the general incorporation statute. In states wherein a delegation of legislative power for municipal purposes is authorized by the Constitution, little difficulty arises in determining the va- lidity of the charter and of the powers therein granted, since upon this sublegislature is conferred, ex necessitate rei, the legislative discretion.' But where the legislative grant of power to organize under general law is made without consti- tutional authority to delegate legislative power, the acts of these officers and boards, and even of the courts, are neces- sarily ministerial only ; ° and, if they in any such case are empowered to exercise legislative powers in the organization, such legislative acts are unconstitutional and void ; '" and, if the portion of the charter of this character is large, or is in- separable from the rest of the work, the entire charter will -be void, and the corporation a nullity.^ ^ FORM AND CONTENTS OF CHARTER ,39. A municipal charter requires for its validity no particu- lar form of words, but is valid and effective if the language employed manifests legislative intention thereby to erect a municipality. 8 Cooley,. Cpnst. Lim. (6th Ed.) 78. Granby Mining & Smelting Co. v. Richards, 95 Mo. 106, 8 S. W. 246; 1 Mor. Priv. Corp. § 15; 1 Thomp. Priv. Corp. § 110; Mayor, •etc., of City of Morristown v. Shelton, 1 Head (Tenn.) 24. JO Ex parte Cha dwell, 3 Baxt. (Tenn.) 98; Greeneville & P. E. Nar- row Gauge R. Co. v. Johnson, 8 Baxt. (Tenn.) 332. 11 Cooley, Const. Lim. (6th Ed.) 210-214. 122 - THE CHARTER (Ch. 5 This document may contain a description of the territory, and a full outline of the powers, such as appears in special charters, or it may be merely a certificate of the fact of incorporation of the specified municipal- ity, in which case reference must necessarily be had to the general statutes for powers and priv- ileges, and to other official documents showing boundaries and other details as essential conditions precedent to the granting of the charter. As we have heretofore seen, the words usually employed to establish a corporation are "found," "erect," "establish," "cre- ate," or "incorporate" ; ^^ but none of them is essential. If the words employed in the charter grant the powers essential to a corporation, or otherwise evince the intention of the Legis- lature to found a municipal corporation by that particular act of legislation, then the charter is sufficient for that purpose, and the municipality is accordingly created. ^^ The absence of express provisions respecting the incidents which are inherent in a corporation, such as the power to sue and be sued, to have a seal, or to enact by-laws, does not render the charter void ; ^* and in more than one case it has been decided that the omission of the name of the corporation is not a fatal de- fect, provided the same may be inferred from the terms of the charter.^" Indeed, it may be regarded as settled law that a corporation may be created by implication, as well as by the use of the customary words in the charter.^J But the impli- cation must be natural and necessary, and if, besides the ab- sence of the usual words of incorporation, and the omission of the essential properties thereof, there is no language from which either may be implied by the use of the recognized rules 12 1 Kyd, Corp. 62 ; 2 Kent, Comm. 27. 13 1 Dill. Mun. Corp. §§ 42, 43. 14 1 Kyd, Corp. 63 ; Conservators v. Asb, 10 Barn. & C. 349. 10 School Com'rs v. Dean, 2 Stew. & P. (Ala.) 190 ; Trustees of Min- isterial & School Fund in Levant v. Parks, lO Me. 441. 16 1 Dill. Mun. Corp. § 42. § 39) rOEM AND CONTENTS OF CHAETEB 123 of interpretation, then the charter is essentially defective, and the municipality is not created thereby.^' Charter Outlined In the American democracy our modern charters are all framed upon the same general model as the parliamentary charters, but there is great variety in tlie special powers con- ferred. An outline of the general features of the modern charter for an American municipality is the following: (1) The inhabitants of the town or city by its proper name are constituted a body politic and corporate, with right of perpetual succession, and power to use a common seal, sue and be sued, purchase and hold property, etc. (2) The territorial boundaries are distinctly defined, and the division of the territory into wards. (3) The governing body of the corporation is ordained, com- posed of one or two bodies, and usually called aldermen or councilmen. (4) The qualifications of the voters are prescribed, com- monly the same as voters at state elections; but sometimes the voters are required to be property owners residing within the corporate limits, or owners of real estate within the limits residing elsewhere. (5) The officers to be chosen, and the mode of their election. (6) An enumeration of the powers of the city council, such as to levy and collect taxes, make local improvements,, enact local ordinances, punish violations thereof, borrow money, make streets, hold courts, and numerous other appropriate mu- nicipal powers. This charter, resembling the Constitution of the state, is the paramount law of the municipality.^* To it resort must neces- 17 Stebbins v. Jennings, 10 Pick. (Mass.) 172; Wells v. Burbank, 17 N. H. 393; Medical Inst, of Geneva College v. Patterson, 5 Denio (N. Y.) 618 ; Myers v. Irwin, 2 Serg. & R. (Pa.) 368. 18 Piatt V. City and County of San Francisco, 158 Cal. 74, 110 Pac. 304. The rule is general, and applicable to the corporate authorities of 124 THE CSARTEE (Ch. & sarily be had to determine questions of municipal law and power. But with it must be considered, also, the state stat- utes and Constitution, and the general jurisprudence of Amer- ica, and the public policy of the state.^° Under familiar rules, as we shall see more fully herein- after, those provisions of the special charter ilvhich are in con- travention of the Constitution are, like any other unconsti- tutional statute, void; but such result does not follow from their conflict with a preceding general statute.^" A subse- quent general statute, however, may operate to repeal charter provisions in conflict with it, as will also, of course, any sub- sequent constitutional provision, for it is the paramount law of the state, and to it all legislation, previous or subsequent,, not granting vested rights, must yield.'' ^ MUNICIPAL POWERS: INHERENT— EXPRESS- IMPLIED 40. The municipality possesses no other powers than— (a) Those expressly enumerated in the charters; (b) Such as are necessary for their appropriate use and execution ; (c) Such as are inherent in every municipal corporation. all municipal bodies, that, where the mode In which their power on any given subject can be exercised is prescribed by their charter, the mode must be followed. Zottman v. City and County of San Francisco, 20 Cal. 96, 81 Am. Dec. 96. 19 Taylor v. Griswold, 14 N. J. Law, 222, 27 Am. Dec. 33; Cooley, Const. Lim. (6th Ed.) pp. 238, 239 ; City of Mt. Pleasant v. Breeze, 11 Iowa, 899; City of Ft. Scott v. W. G. Eads Brokerage Co., 117 Fed. 51, 54 O. C. A. 487. 20 Babcock v. City of Helena, 34 Ark. 499 ; Thomason v. Ash worth, 73 Cal.. 73, 14 Pac. 615; State v. Clarke, 54 Mo. 17, 14 Am. Rep. 471; Gorum v. Mills, 34 N. J. Law, 177 ; City of Mobile v. Dargan, 45 Ala. 310 ; City of Leavenworth v. Norton, 1 Kan. 432. 21 Daniel v. Mayor, etc., of City of Memphis, 11 Humph. (Tenn.)- .582; State ex rel. Waring v. Mayor, etc., of Mobile, 24 Ala. 701; People V. Morris, 13 Wend. (N. Y.) 325; Wallace v. Board of Trus- tees of Sharon Tp., 84 N. C. 164; Wiley v. Corporation of BlufCton, § 40) MUNICIPAL POWEES: INHERENT-EXPEES8-IMPLIED 125 A municipal corporation has no element of sovereignty, but is a mere local agency of the staite.i? It serves but as an in- strumentality established by the Legislature to carry out its will in regard to local governmental functions/* though it al- so has certain other objects that are peculiarly local. Neverthe- less, since a municipal corporation is simply a creation of the Legislature, the powers which it possesses and can exercise are only those which the law gives it. By this is not meant that the municipality possesses only such powers as are expressly granted in its charter. There are other powers necessarily or fairly implied in or incident to the powers expressly granted, ^d also certain powers essential to the declared object and purpose of the corporation, not simply convenient, but indis- pensable, which may be exercised by the municipality.^* ,\ J^ihgrgjji powers are such as are necessary to and insepara- ble from every corporation, and they come into existence as a matter of course as soon as a municipality is created. They are the common-law powers- of a corporation enumerated by Blackstone ^^ as follows : (1) To have perpetual succession ; (2) to sue and be sued, implead and be impleaded, grant and receive by its corporate name, and do other acts as a natural person ; (3) to purchase, hold, and sell property, real and per- 111 Ind. 152, 12 N. E. 165; Chicago & E. B. Co. v. Keith, 67 Oliio St. 279, 65 N. E. 1020, 60 L. R. A. 525 ; Oshkosh Waterworks Co. v. Oshkosh, 187 U. S. 437, 23 Sup. Ct 234, 47 L. Ed. 249 ; City of Mobile V. Dargan, supra. 22 Whiting V. Town of West Point, 88 Va. 905, 14 S. E. 698, 15 L. R. A. 860, 29 Am. St. Rep. 750. 2 3 Schneck v. City" of Jefeersonville, 152 I^d. 204, 52 N. E. 215.- Hi City of Independence v. Cleveland, 167 Mo. 384, 67 S. W. 216 ; City of Winchester v. Redmond, 93 Va. 711, 25 S. E. 1001, 57 Am. St. Rep. 822; McALLEN v. HAMBLIN, 129 Iowa, 329, 105 N. W. 593, 5 L. R. A. (N. S.) 434, 6 Ann. Cas. 980, Cooley, Cas. Mun. Corp. 97 ; Farwell v. City of Seattle, 43 Wash. 141, 86 Pac. 217, 10 Ann. Cas. 130; Champer v. City of Greencastle, 138 Ind. 339, 35 N. E. 14, 24 L. R. A. 768, 46 Am. St. Rep. 390; City of New London v. Brain- ard, 22 Conn. 552 ; Mayo v. Dover & Foxcroft Village Fire Co., 96 Me. 539, 53 Atl. 62; Schneider v. City of Menasha, 118 Wis. 298, 95 N. W. 94, 99 Am. St. Rep. 996. 25 1 Blackstone, Comm. 475. 126 ' THE CHARTER (Oh. 5 sonal, for the benefit of the municipality ; (4) to have a com- mon seal, alterable at pleasure ; and (5) to make by-laws and ordinances for the government of the corporation.^ ° Some- times other powers, because essential to a corporation to en- able it to carry out the purposes of its creation, are spoken of as inherent. Such powers, however, may be sustained as im- plied or incidental powers. .V Express gowers include, of course, only those that are granted in express words by the special charter or the gen- . eral law under. which the corporation is organized. It is wise and necessary that the charter should contain an enumeration of the powers and privileges intended to be granted the mu- nicipal corporation, and the duties to be imposed upon it. In the special charters these powers are varied in character and extent, and also in form. In the charters obtained under gen- eral statutes, the enumeration is generally abundant, and often tedious and redundant. This, however, within bounds, is preferable to the omission of powers intended to be granted, and leaving them to the doubtful source of judicial implication. 3) The term "imglied EPS5X§" includes all other than inherent or express powers, and is used to designate those powers which arise by natural implication from the grant of express power or by necessary inference from the purposes or func- tions of the corporation. The determination as to what pow- ers may be implied, as well as the extent of powers expressly granted, is, therefore, largely a matter of construction. Gen- erally speaking, municipal charters are to be strictly con- strued,v and all reasonable doubts as to the existence of a power in a municipality must be resolved against it.''* Never- 2« Ball V. Texarkana Water Corporation (Tex. Civ. App.) 127 S. W. 1068. 2 7 City of St Paul v. Briggs, 85 Minn. 290, 88 N. W. 984, 89 Am. St. Rep. 554 ; City of Port Huron v. McCall, 46 Mich. 565, 10 N. W. 23 ; City of Henderson v. Young, 119 Ky. 224, 83 S. W. 583 ; Hender- son V. City of Covington, 77 Ky. (14 Bush) 312. 28 Scott V. City of La Porte, 162 Ind. 34, 68 N. E. 278, 69 N. E. 675; City of Lafayette v. Cox, 5 Ind. 38; Meday v. Borough of Ruther- § 40) MUNICIPAL powers: inhekent-expeess-implied 127 theless, the charter must be rationally construed,^" and when- ever a necessary power can be fairly implied, it should not be excluded or impaired by strict construction,^" especially where the power relates to functions that are private or mu- nicipal in character,^ ^ or are especially designed to promote the general good.^^ General Welfare Clause When powers are enumerated in a special act or charter which would belong to the corporation without specific enu- meration, the specific statute is to be regarded, not as the source of the powers, but merely as declaratory of the pre- existing powers, or rather of \those which are essential to the very nature of a municipal corporation, to enable it to accom- plish the end for which it is created. But the enumeration of powers, including a portion of those usually implied, does not necessarily operate as a limitation of corporate powers, excluding those not enumerated.v? The difficulty of making specific enumeration of all such powers as the Legislature may intend to delegate to the municipality renders it necessary to ford, 65 N. J. Law, 645, 48 Atl. 529 ; Los Angeles City Water Co. v. City of Los Angeles (C. C.) 88 Fed. 720, affirmed 177 U. S. 558, 20 Sup. Ct. 736, 44 L. Ed. 886; Chicago Union Traction Co. v. City of Chicago, 199 111. 484, 69 N. E. 451, 59 L. R. A. 631 ; Stern v. City of Fargo, 18 N. D. 289, 122 N. W. 403, 26 L. R. A. (N. S.) 665. 2 9 State y. Butler, 178 Mo. 272, 77 S. W. 560; Torrent v. Muskegon, 47 Mich. 115, 10 N. W. 132, 41 Am. Rep. 132. 3 State V. Butler, 178 Mo. 272, 77 S. W. 560; Scott v. City of La Porte, 162 Ind. 34, 68 N. E. 278, 69 N. E. 675; Groner v. City Council of Portsmouth, 77 Va. 488; McCredie v. City of Buffalo, 2 How. Prac. N. S. (N. X.) 336; In re Village of Kenmore, 59 Misc. Rep. 388, 110 N. T. Supp. 1008 ; GREEN v. CITY OF CAPE MAY, 41 N. J. Law, 45, Cooley, Cas. Mun. Corp. 99 ; Cary r. Blodgett, 10 Cal. App. 463, 102 Pac. 668. 31 City of Henderson v. Young, 119 Ky. 224, 83 S. W. 583; City of Port Huron v. McCall, 46 Mich. 565, 10 N. W. 23. 3 2 Bethlehem City Water Co. v. Bethlehem Borough, 231 Pa. 454, 80 Atl. 984. 3 3 CITY OF CRAWFORD SVILLE v.' BRADEN, 130 Ind. 149, 28 N. E. 849, 14 L. R. A. 268, 30 Am. St. Kep. 214, Cooley, Cas. Mun. Corp. 100. 128 THE CHARTER (Oh. 5 confer some power in general terms.'* Consequently the enumeration of special powers in a municipal charter is often concluded with a clause cgnferring general authority to pass all ordinances which may be necessary, for the promotion of good order and the general welfare of the municipality, and are not inconsistent with the Constitution and general laws of the state. In some special charters there is no enumera- tion of the subjects upon which the corporation shall have power to legislate, but only a general grant of power to pass all ordinances which are necessary to the good order and well-being of the corporation.*" In either case this "general ]welfare clause" must be construed as conferring no other pow- ers than such as are within the ordinary scope of municipal authority, or which are necessary to accomplish municipal purposes.'" The distinction to be observed between the two charters in construing their provisions is considered by Judge Dillon to be essential, "for the powers granted by the general welfare clause, if not stated alone, may be limited, qualified, or, when such intent is manifest, impliedly taken away, by provisions specifying the particular purposes for which by-laws may be made." " On the other hand, it would seem that since, un- der the general welfare clause, the corporation obtains all the usual and necessary powers of the municipality, the specific enumeration of powers might confer others not usual; and thus the charter, containing both specific enumeration and 34 Porter v. Vinzant, 49 Fla. 213, 38 South. 607, 111 Am. St. Eep. 93. 35 1 Beach, Pub. Corp. §§ 583, 1269; Tied. Mun. Corp. § 135; TOWN OF NEWPORT V. BATESVILLB & B. EY. CO., 58 Ark. 270, 24 S. W. 427, Cooley, Cas. Mun. Corp. 106; City of Nashville v. Linck, 12 Lea (Tenn.) 499 ; City of Brooklyn v. Furey, 9 Misc. Rep. 193, 30 N. X. Supp. 349. 3 8 Spaulding v. City of Lowell, 28 Pick. (Mass.) 71; City of New Orleans v. PhilippI, 9 La. Ann. 44 ; City of Leavenworth v. Norton, 1 Kan. 432. But see Cross v. Mayor, etc., of Town of Morristown, 33 N. J. Law, 57. 3r 1 Dill. Mun. Corp. § 315. § 40) MUNICIPAL powers: inherent-expkess-implied 129 general welfare clauses, might give more powers than one conferring powers only by the general welfare clause. In case of challenge of municipal power, it is probable that the result would depend upon the question whether the court leans towards the doctrine of strict construction, rather than liberal ; but the "general welfare clause" would not enlarge an enu- merated power expressly limited or restricted, for such con- struction would make the general clause repeal a special one in the same statute, and thus violate an established rule of in- terpretation.'* The general powers thus given to the municipality are as a rule designed to confer powers other than those specifically mentioned;" but powers specifically conferred cannot be enlarged by the general clause,*" nor can the general welfare clause confer any powers contrary to the express provisions of the charter.*^ As a general rule it may be said that the pow- ers given to a municipality under the general welfare clause should be construed with reference to the purpose of its in- corporation, and, where particular powers are expressly con- ferred, and there is also a general grant of powers, such gen- eral grant includes all powers fairly within the' terms of the grant, and essential to the purpose of the municipality, and not in conflict with the particular powers conferred.*'' Same — Powers Conferred Under a general grant of authority to pass such by-laws as shall be needful to the good order of the city, power has been upheld to "establish all suitable ordinances for administering 38 state V. Ferguson, 33 N. H. 424; Clark v. City of South Bend, 85 Ind. 276, 44 Am. Rep. 13 ; Collins v. Hatch, 18 Ohio, 523, 51 Am. Dec. 465. 3 9 Mayor, etc., of City of Nashville v. Linck, 80 Tenn. (12 Lea) 499: Porter v. Vinzant, 49 Fla. 213, 38 South. 607, 111 Am. St. Rep. 93. 40 CITY OF CHICAGO v. GUNNING SYSTEM, 114 111. App. 377, affirmed 214 111. 628, 73 N. E-. 1035, 70 L. R. A. 230, 2 Ann. Cas. 892, Cooley, Cas. Mun. Corp. 129. 41 City of Brooklyn v. Furey, 9 Misc. Rep. 193, 30 N. Y. Supp. 349. 42 State ex rel. Ellis v. Tampa Waterworks Co., 56 Fla. 858, 47 South. 358, 19 L. R. A. (N. S.) 183. COOL.MUN.COEP. — 9 130 THE CHARTER (Ch. 5 the government of the city, the preservation of the health of the inhabitants, and the convenient transaction of business within its limits." *^ The general welfare clause has also been held to confer power to prevent the keeping of bawdy-hous- es ; ** the feeding of cows on distillery slops, and Selling their milk within the city ; *^ the public exposure for sale, or sale of merchandise on Sunday; *" the sale of liquor on Sunday; *^ the keeping of saloons, restaurants and other places of public entertainment open after 10 o'clock at night;** the carrying on of the laundry business in a certain portion of the city; *' to forbid all disorderly shouting, dancing, etc., in streets and public places ;°'' to regulate the keeping and selling of gun- powder within the corporate limits ; ^^ to require elevators in- side all stores to be inclosed ; ^^ to prohibit the throwing of heavy or dangerous articles from upper stories of buildings into streets and open spaces near them used as public pass- ways;^* to establish fire limits, and to prevent the erection therein of wooden buildings;"* to prohibit cruelty to ani- mals;"" to prohibit visiting at gambling houses;"* and to .\ 4 3 state V. Merrill, 37 Me. 329. 41 State ex rel. Burton v. Williams, 11 S. C. 288. 45 Johnson v. Simonton, 43 Cal. 242. 4 6 City Council of Charleston v. Benjamin, 2 Strob. (S. C.) 508, 49 Am. Dec. 608. 4 7 Megowan v. Commonwealth, 2 Mete. (Ky.) 3; State v. Welch, 36 Conn. 215. 48 State V. Freeman, 38 N. H. 426; Morris v. City Council of Rome, 10 Ga. 532 ; President, etc., of Village of Platteville v. Bell, 43 Wis. 488. 48 In re Hang Kie, 69 Cal. 349, 10 Pac. 327. 6 Com'rs of Town of Washington v. Frank. 46 K. C. 436; City of St. Charles v. Meyer, 58 Mo. 86. SI Frederick v. City Council of Augusta, 5 Ga. 561. 6 2 City of New York v. Williams, 15 N. T. 502. 6 3 City Council of Charleston v. Elford, 1 McMul. (S. C.) 234. 64 King V. Davenport, 98 111. 305, 38 Am. Rep. 89 ; Knoxvllle Corp. V. Bird, 12 Lea (Tenn.) 121, 49 Am. Rep. 326; Bauingartner v. Hasty, 100 Ind. 575, 50 Am. Rep. 830. 6 5 City of St. Louis v. Schoenbusch, 95 Mo. 618, 8 S. W. 791. 66 Ex parte Lane, 76 Cal. 587, 18 Pac. 677. § 40) MUNICIPAL POWEES: INHERENT-EXPRESS-IMPLIED 131 fix the time and places of holding public markets for the sale of food, and regulating the same.°^ Same — Powers Denied But, on the contrary, it has been held that the general wel- fare clause does not authorize a city to aid in constructing a plankroad or toUbridge by a private company beyond the cor- porate limits ; I? nor to require the proprietor of a theater, circus, or other licensed place of exhibition to pay a police offi- cer for attendance upon the place; °' nor to subject to a fine "any person whose known character is that of a prostitute" ; *" nor to levy taxes upon retailers of ardent spirits ; ®^ nor to re- quire druggists to furnish verified statements quarterly of the kind and quantity of intoxicating liquors sold, and to whom ; ®^ nor to exact a license fee from peddlers in the discretion of the mayor; *^ nor to require cotton merchants to keep a rec- ord of their purchases of loose cotton ; *<> nor to prohibit street processions, with musical instruments, banners, torches, sing- ing, and shouting; °' nor to require a license tax for a tem- porary stand for the sale of lemonade, cake, etc. ;'" nor to prescribe a different mode of trial and punishment, in addi- tion to that proyided by the state law, for enticing and har- boring seamen ; *' nor to regulate and license the sale of liq- 5 7 Kinsley v. City of Chicago, 124 111. 359, 16 N. E. 260; Ketchum V. City of Buffalo, 14 N. T. 356. S3 City Council of City of Montgomery v. Montgomery & Wetumpka Plank Road Co., 31 Ala. 76. 5 9 Waters v. Leech, 3 Ark. 110. 60 Buell V. State, 45 Ark. 336. 61 Ex parte Burnett, 30 Ala. 461; Com'rs of Town of Asheville v. Means, 29 N. C. 406. 6 2 City of Clinton v. Phillips, 58 111. 102, 11 Am. Rep. 52. 6 3 Town of State Center v. Barenstein, 66 Iowa, 249, 23 N. W. 652. 6 4 Long V. Taxing Dist. of Shelby County, 7 Lea (Tenn.) 134, 40 Am. Rep. 55. 6 5 In re Frazee, 63 Mich. 396, 30 N. W. 72, 6 Am. St. Rep. 310. 6 6 Barling v. West, 29 Wis. 307, 9 Am. Rep. 576. 6 7 Mayor, etc., of City of Savannah v. Hussey, 21 Ga. 80, 68 Am- Dec. 452. 132 THE CHAKTEB • (Ch. 5 uors, in addition to the state regulation and license ; '* nor to prohibit the retail of liquors by one duly licensed by the state,'* nor to forbid it during any divine service held within the corporate limits.'" These cases are sufficient to show the general current of judicial opinion in the United States to sustain, under the general welfare clause of the charter, all ordinances tending to promote the general welfare and pre- serve the peace and good order of society, and protect persons, health, and property of citizens, unless they contravene some constitutional provision. EXERCISE OP POWERS 41. When a pov^er is conferred upon a municipal corpora- tion, and the manner in which the power is to be exercised is prescribed, that mode must be fol- lowed ; and in so far as the power involves the ex- ercise of judgment or discretion the execution of that power cannot be delegated. Mode of Uxercise of Powers in General When a power is conferred on a municipal corporation, and the charter or statute does not prescribe the manner in which the power shall be exelrcised, the corporate authorities are necessarily clothed with a reasonable discretion to determine the mode in which the act shall be performed, and all rea- sonable methods of executing the power are permissible.'^ But, if the mode in which the power can be exercised is pre- ss Commonwealth V. Dow, 10 Mete. (Mass.) 382; Loeb v. City of Attica, 82 Ind. 175, 42 Am. Rep. 494. 6 9 Ex parte Burnett, 30 Ala. 461. 7 Githam v. Wells, 64 Ga. 192. Ti Walker v. Jameson, 140 Ind. 591, 37 N. E. 402, 39 N. E. 869, 28 L. E. A. 679, 49 Am. St. Rep. 222; Scott v. City of La Porte, 162 Ind. 84. 68 N. B. 278, 69 N. B. 675 ; Kirkham v. Russell, 76 Va. 956. § 41) EXERCISE OF POWEE8 133 scribed in the charter, that mode must be followed.''* In such cases the mode prescribed is the measure of the power, and aside from the mode designated the power does not exist.''' Thus, if the charter provides that a particular power can be exercised only by resolution, an execution thereof in any manner other than by resolution is void.'* On the other hand, , if the charter provides that the power can be exercised by ordinance, an attempt to exercise it by contract or resolution would be illegal.^' In the absence of any direction in the charter, the municipality may, through its council, prescribe rules of procedure in the exercise of its powers.''* Delegation of Power Though it is generally conceded that the state Legislature may confer on municipal corporations sovereign powers in such measure as it deems wise and proper, there is more or less conflict of opinion on the question whether the governing body of a municipality may delegate its powers. Though it has be.en repeatedly held that a municipality has no such power of delegation,^' unless the state expressly authorizes such dele- gation,'" yet it is now generally recognized that the governing body of the municipality may delegate to subordinate officers or boards powers and functions that are merely ministerial or 72 Page V. Belvin, 88 Va. 985, 14 S. E. 843 ; City of Fort Scott v. W. G. Eads Brokerage Co., 117 Fed. 51, 54 C. C. A. 437; City of Neva- da, to Use of GilfiUan, v. Eddy, 123 Mo. 546, 27 S. W. 471 ; Zottman V. City and County of San Francisco, 20 Cal. 96, 81 Am. Dec. 96; First Presbyterian Church of Ft. Wayne v. City of Ft. Wayne, 36 Ind. 338, 10 Am. Rep. 35. 7 3 Page V. Belvin, 88 Va. 985, 14 S. E. 843; Zottman v. City and County of San Francisco, 20 Cal. 96, 81 Am. Dec. 96. 7 4 McCoy V. Brlant, 53 Cal. 247. 75 City of TJnionville v. Martin, 95 Mo. App. 28, 68 S. W. 605. 7 8 City of Carbondale v. Wade, 106 111. App. 654. 7 7 City of Oakland v. Carpentier, 13 Cal. 54Q; State v. Garibaldi, 44 La. Ann. 809, 11 South. 36; Thompson v. Schermerhorn, 6 N. Y. 92, 55 Am. Dec. 385; Gale v. Village of Kalamazoo, 23 Mich. 344, 9 Am. Rep. 80; City of TJnionville v. Martin, 95 Mo. App. 28, 68 S. W. 605. 78 State V. Garibaldi, 44 La. Ann. 809, 11 South. 36. 134 THE CHARTER (Oh. 5 administrative J* On the other hand, it is equally well settled that powers involving the exercise of judgment and discretion, as is the case with such legislative or quasi judicial powers as are possessed by the governing body of the municipality, can- not be delegated.^" Ministerial functions are those that are absolute, fixed, and certain, in the performance of which there is nothing left to the judgment or discretion of the officer or board. ^^ Such functions, as has been said, may be delegated, so long as no attempt is made to give the subordinate board or officer the power to finally determine the policy of the cor- poration. Surrender of Authority As a municipal corporation cannot delegate its powers, so, too, it cannot surrender, abrogate, or contract away its au- thority.'^ Especially is this true as to those municipal func- 7 8 Whitney v. City of New Haven, 58 Conn. 450, 20 Atl. 666; Durant v. Mayor, etc., of Jersey City, 25 N. J. Law, 309; Brady V. City of Bayonne, 57 N. J. Law, 379, 30 Atl. 968; JEWELL BELTING CO. v. VILLAGE OF BERTHA, 91 Minn. 9, 97 N. W. 424, Cooley, Cas. Mun. Corp. 168; Neill v. Gates, 152 Mo. 585, 54 S. W, 460; Harcourt v. Common Council of Asbury Park, 62 N. J. Law, 158, 40 Atl. 690 ; Dancer v. Town of Mannington, 50 W. Va. 322, 40 S. E. 475 ; CITY OF BIDDEFORD v. YATES, 104 Me. 506, 72 Atl. 335, 15 Ann. Cas. 1091, Cooley, Cas. Mun. Corp. 108. 8 San Francisco Gaslight Co. v. Dunn, 62 Cal. 580; Thompson v. Board of Trustees of City of Alameda, 144 Cal. 281, 77 Pac. 951; JEWELL BELTING CO v. VILLAGE OF BERTHA, 91 Minn. 9, 97 N. W. 424, Cooley, Cas. Mun. Corp. 168 ; Neill v. Gates, 152 Mo. 585, 54 S. W. 460 ; Danforth v. Mayor, etc., of City of Paterson, 34 N. J. Law, 163 ; CITY OF BIDDEFORD v. YATES, 104 Me. 506, 72 Atl. 335, 15 Ann. Cas. 1091, Cooley, Cas. Mun. Corp. 108. 81 JEWELL BELTING CO. v. VILLAGE OF BERTHA, 91 Minn. 9, 97 N. W. 424, Cooley, Cas. Mun. Corp. 168; CITY OF BIDDE- FORD V. YATES, 104 Me. 506, 72 Atl. 335, 15 Ann. Cas. 1091, Cooley, Cas. Mun. Corp. 108. 82 State ex rel. Townsend v. Board of Park Com'rs, 100 Minn. 150, 110 N. W. 1121, 9 L. K. A. (N. S.) 1045 ; Brummitt v. Ogden Water- works Co., 33 Utah, 289, 93 Pac. 828 ; Gale v. Village of Kalamazoo, 1 Mich. N. P. 5; Third Municipality of New Orleans v. Drsuline Nuns, 2 La. Ann. 611; National Waterworks Co. v. Kansas City, 20 Mo. App. 237 ; Whitney v. Mayor, etc., of City of New York, 6 Abb. N. C. (N. Y.) 329. § 41) EXERCISE OF POWERS 135 tions which are regarded as mandatory.*' It is true that in a few instances contracts assuming to surrender municipal rights have been sustained, on the ground that to invalidate such contracts would contravene the constitutional provision forbidding impairment of the obligation of contracts;** but it is doubtful if the provision applies, except when repudia- tion of contracts is attempted by legislation. Judicial Supervision In the exercise of the powers conferred in its charter, a mu- nicipal corporation is not in general subject to the control or supervision of the courts. This is unqualifiedly true as to all matters involving discretion,*^ and matters involving questions of purely municipal policy.*® The expediency Qf the acts of the governing body of the municipality in matters over which it has jurisdiction is not a judicial question, and so long as that body does not transcend the scope of its authority, or violate any of the limitations on the exercise of its powers, it will not, in the absence of fraud, be interfered with by a court of law or equity.*'' The courts will interfere only when the governing body has exceeded its powers,** or where it is • 8 3 Edwards v. City of Watertown, 61 How. Prae. 463; Gillett v. Board of Sup'rs of Logan County, 67 111. 256. 8* State ex rel. Attorney General v. Cincinnati Gaslight & Coke Co., 18 Ohio St. 262. 8 5 Enders v. Friday, 78 Neb. 510, 111 N. W. 140, 15 Ann. Cas. 685; Swan V. City of Indianola, 142 Iowa, 731, 121 N. W. 547 ; Adams v. City of Milwaukee, 144 Wis. 371, 129 N. W. 518 ; Jones v. Town of North Wilkesboro, 150 N. C. 646, 64 S. E. 866; Ward v. Piper, 69 Kan. 773, 77 Pae. 699. 8 8 Hibbard v. Barker, 84 Kan. 848, 115 Pac. 561; Keely v. City of Atlanta, 69 Ga. 583. 8 7 Murphy v. Chicago, E. I. & P. Ey. Co., 247 111. 614, 93 N. E. 381 ; Eeed v. City of Anoka, 85 Minn. 294, 88 N. W. 981 ; Eyan v. City of Paterson, 66 N. J. Law, 533, 49 Atl. 587. 8 8 Johnson v. City of Indianapolis, 174 Ind. 691, 93 N. E. 17; Crouch V. City of McKinney, 47 Tex. Civ. App. 54, 104 S. W. 518; City of Frostburg v. Wineland, 98 Md. 239, 56 Atl. 811, 64 L. E. A. 627, 1 Ann. Cas. 783; State v. Hager, 91 Mo. 452, 3 S. W. 844; Eyan v. City of Paterson, 66 N. J. Law, 533, 49 Atl. 587. 136 THE CHARTER (Ch. 5 shown that it has acted in an unreasonable or capricious spir- it,'* or has been influenced by malice or fraud."" The fraud that will authorize the court's interference in the matter of municipal action is not that the power exercised has resulted in individual hardship in its execution, or that, in the working out of the general scheme, an individual burden is imposed without a corresponding benefit conferred, but only when the act of the municipal body is so unreasonable, op- pressive, and subversive of the rights of the citizen in the general purpose declared, as to indicate clearly an attempted abuse rather than a legitimate use of the power. °^ Even where the act of the governing body is dictated by a bad mo- tive or is unreasonable the courts will not interfere, if the act is in the execution of an express legislative power,^^ CHARTER POWERS CLASSIFIED 42. The powers, functions, and duties of a municipal cor- poration are divisible into two great classes: (a) GOVERNMENTAL: That is, those which are conferred and imposed upon a mimlcipal corpora- tion, as a local agency of limited and prescribed jurisdiction, to be exercised by it in administering the powers of the state, and promoting the public welfare within it. 88 Murphy v. Chicago, R. I. & P. Ky. Co., 247 111. 614, 93 N. E. 381 ; Johnson v. City of Indianapolis, 174 Ind. 691, 93 N. E. 17; Smith v. City of New Alhany, 175 Ind. 279, 93 N. E. 73 ; Town of La Grange v. Overstreet, 141 Ky. 43, 132 S. W. 169, 31 U R. A. (N. S.) 951 ; City of Richmond v. Model Steam Laundry, 111 Va. 758, 69 S. E. 932. 80 Town of La Grange v. Overstreet, 141 Ky. 43, 132 S. W. 169, 31 L. R. A. (N. S.) 951 ; People v. Grand Trunk Western Ry. Co., 232 111. 292, 83 N. E. 839. 91 Heman v. Schulte, 166 Mo. 409, 66 S. W. 163. 92 City of Chicago v. Ripley, 249 111. 466, 94 N. E. 931, 34 L. R. A. (N. S.) 1186, Ann. Cas. 1912A, 160 ; Murphy v. Chicago, R. I. & P. Ry. Co., 247 111. 614, 93 N. E. 381 ; Swan v City of Indlanola, 142 Iowa, 731, 121 N. W. 547 ; Rabbetto v. Mott, 60 N. J. Law, 413, 38 Atl. 857. § 42) CHARTER POWERS CLASSIFIED 137 (b) MUNICIPAL: Those conferred and imposed for the special benefit and advantage of the urban community which is incorporated into a distinct corporate person or municipality. Municipalities act in a dual capacity, the one corporate and the other governmental. To the former belong acts done in the management of property or rights held voluntarily for their own profit, though ultimately inuring to the benefit of the public; and to the latter belongs the discharge of duties im- posed on them by the Legislature for the public benefit." The powers and functions of the municipality may therefore be divided into two classes: (1) Governmental; and (2) mu- nicipal. Governmental functions have been defined and de- scribed by judges and authors so as to include all those which are legislative, judicial, discretionary, public and political, while municipal powers and duties are held to include all those which are ministerial, mandatory, peremptory, private, and corpo- rate.°* Under the head of "governmental gowers" are ac- cordingly classified (a) powers pertaining to the administration of justice; (b) all police powers; (c) power of eminent do- main ; (d) powers for the promotion of public education ; (e) powers to maintain a fire department and extinguish fires ; (f) all other charter powers to be exercised by the municipality, as an agency of the state, for the benefit of the public, in or for the exercise of which the corporation receives no consid- eration."" All other charter powers and duties, including not only those which are mandatory, such as the proper care of streets and alleys, but also those powers which are discretion- ary, such as the erection and maintenance of waterworks, gas- 93 Llbby V. City of Portland, 105 Me. 370, 74 Atl. 805, 26 L. R. A. (N. S.) 141, 18 Ann. Cas. 547; City of Winona v. Botzet, 169 Fed. 321, 94 C. C. A. 563, 23 L. R. A. (N. S.) 204. 04 Tied. Mun. Corp. §§ 110-112. 95 Stedman v. City and County of San Francisco, 63 Cal. 193; Jones V. City of Ricbmond, 18 Grat. (Va.) 517, 98 Am. Dec. 695. 138 THE CHARTER (Ch. 5 works, and electric plants, from which profit may be derived by the municipality, are municipal. ^° In the exercise of its governmental powers and functions the municipality represents the state ; and the officers execut- ing these powers are rather officers of the state than of the municipality, and, as such, they are peculiarly subject to the control of the state, while those officers who perform strictly municipal functions are municipal officers to be chosen by the corporation, and are not so subject to legislative control.i? It has accordingly been held that the Legislature may create and appoint boards of fire and police commissioners, and vest them with power of selecting and appointing the police forcej°* and so, also, of park commissioners;"* though it may have no power to appoint mayors or councilmen or street commissioners, whose duties are strictly municipal.^ The judicial views of these distinct functicms of a municipality are 9 6 Mersey Dock Oases, 11 H. L.' Gas. 687; City of Pittsburgh v. Grier, 22 Pa. 54, 60 Am. Dec. 65 ; Murphy v. City of Lowell, 12i Mass. 564; Grimes v. Town of,Keene, 52 N. H. 335; Aldrich v. Tripp, 11 R. I. 141, 23 Am. Kep. 434. 9 7 United States ex rel. Brown v. Memphis, 97 U. S. 284, 24 L. Ed. 937; State ex rel. Walsh v. Hine, 59 Conn. 50, 21 Atl. 1024, 10 L. R. A. 83 ; State v. O'Connor, 54 N. J. Law, 36, 22 Atl. 1091 ; People V. McKinney, 52 N. Y. 374; Richmond Mayoralty Case, 19 Grat. (Va.) 673 ; STATE ex rel. JAMESON v. DENNY, 118 Ind. 382, 21 N. E. 252, 4 L. R. A. 79, Cooley, Cas. Mun. Corp. 4 ; State ex rel. At- torney General v. George, 23 Fla. 585, 3 South. 81 ; Stanfleld v. State, 83 Tex. 317, 18 S. W. 577; State v. Nine Justices, 90 Tenn. 722, IS S. W. 393 ; Green v. County of Fresno, 95 Cal. 329, 30 Pac. 544. 98 Commonwealth v. Plaisted, 148 Mass. 375, 19 N. E. 224, 2 L. R. A. 142, 12 Am. St. Rep. 566 ; People v. McDonald, 69 N. T. 362 ; Burch V. Hardwicke, 30 Grat. (Va.) 24, 32 Am. Rep. 640; State v. Hunter, 38 Kan. 578, 17 Pac. 177. Contra, City of Evansville v. State ex rel. Blend, 118 Ind. 426, 21 N. E. 267, 4 L. R. A. 93 ; STATE ex rel. JAMESON v. DENNY, 118 Ind. 382, 21 N. E. 252, 4 L. R. A. 79, Cooley, Cas. Mun. Corp. 4. 99 PEOPLE ex rel. LE ROY v. HUBLBUT, 24 Mich. 44, 9 Am. Rep. 103, Cooley, Cas. Mun. Corp. 36. 1 Richmond Mayoralty Case, 19 Grat. (Va.) 673 ; State ex rel. Reese v. Bogard, 128 Ind. 480, 27 N. E. 1113; Hathaway v. New Baltimore, 48 Mich. 251, 12 N. W. 186; People v. Clute,"^50 N. Y. 451, 10 Am. Rep. 508. § 43) TEEKITOEIAL LIMIT OF MUNICIPAL AUTHORITY 339 not uniform, but in some instances quite conflicting and dis- cordant, as illustrated by the able opinions of Judges Campbell and Qophj in two leading cases in Michigan ' emphasizing these distinctions, and by the masterly opinion of Chief Jus- tice Qenig in a celebrated New York case 5. denying the exist- ence of these distinctions, and asserting that all municipal pow- ers and functions are public. 1 The importance of the ques- tion arises out of the fact that upon its solution depend the power of legislative control, and also civil liabilities of corpo- rations.2 SufSce it here to say that the genera] tjend of judi- cial opinion is unmistakably toward the double aspect of the municipality, and the recognition of the quasi private nature of the powers, offices, and property pertaining to it for the special benefit and peculiar advantage of its citizens and of the locality. TERRITORIAL LIMIT OF MUNICIPAL AUTHORITY 43. The municipal authority is coextensive with the munici- pal boundaries, and generally is limited by them. Since a municipal corporation is ^an agency of the state for local government, it is as a general rule restricted to its corpo-^ rate limits in the exercise of its corporate powers.* The by- laws and ordinances of the corporation must, of course, pre- vail over the entire territory which is incorporated, and all persons within those boundaries to whom they are applicable. They are local laws, therefore, enacted or authorized by the 2 PEOPLE ex rel. LE ROY v. HURLBUT, 24 Mich. 44, 9 Am. Rep. 103, Cooley, Gas. Mun. Corp. 36; People ex rel. Board of Park Com'rs of Detroit v. Common Council of Detroit, 28 Mich. 228, 15 Am. Rep. 202. 3 Darlington v. Mayor, etc., of City of New York, 31 N. Y. 164, 88 Am. Dec. 248. * State V. Cederaskl, 80 Conn. 478, 69 Atl. 19; Donable's Adm'r T. Town of Harrisonburg, 104 Va. 533, 52 S. E. 174, 2 L. R. A. (N. S.) 910, 113 Am. St. Rep. 1056, 7 Ann. Cas. 519. 140 THE CHAKTEE (Oh. 5 State, and all persons within the municipal jurisdiction are bound to respect and obey them." Exceptions The exceptions to the rule that the corporate limits are the boundary of corporate authority are few and special. They will be found generally in legislative acts giving jurisdiction to city boards of health over some district beyond the munici- pal boundaries, to the end that they may be enabled thus to protect the public health of the municipality. It is in fact gen- erally conceded that the authority of the municipality may be extended over outside territory for police purposes.' Some acts give jurisdiction of territory outside its municipal bounda- ries from which it obtains its water supply ; ' and likewise to prevent nuisances in adjacqnt territory lying beyond the city limits^ This last power was maintained by the Supreme Court of Illinois to the extent of authorizing the city of Chi- cago to enforce an ordinance forbidding any person or cor- poration to carry on the business of slaughtering, rendering, etc., within a mile of the city limits, and thereby to abate, as a nuisance, the factory of the Chicago Packing Company, which was outside the city limits, and within the incorporated ■ town of Lake, from which it held a license to carry on its busi- ness." A city has also been held to possess implied power to make a contract with an adjoining landowner to give an out- 5 Dodge v. Gridley, 10 Ohio, 173 ; Mayor, etc., of City of Knox- ville V. King, 7 Lea (Tenn.) 441 ; Johnson v. Simonton, 43 Cal. 242 ; Swift V. City of Topeka, 43 Kan. 671, 23 Pac. 1075, 8 L. R. A. 772 ; Plymouth Com'rs v. Pettijohn, 15 N. C. 591 ; City of BufCalo v. Schlelf- er, 2 Misc. Rep. 216, 21 N. Y. Supp. 913; Citizens' Gas & Mining Co. v. Town of El wood, 114 Ind. 332, 16 N. E. 624; Perdue v. Ellis, 18 Ga. 586 ; State v. Merrill, 37 Me. 329. 6 Van Hook v. City of Selma, 70 Ala. 361, 45 Am. Rep. 85 ; Town of Gower v. Agee, 128 Mo. App. 427, 107 S. W. 999. ^ Dunham v. City of New Britain, 55 Conn. 378, 11 Atl. 354. 8 Gould V. City of Rochester, 105 N. T. 46, 12 N. E. 275. See, also, Metropolitan Board of Health v. Heister, 37 N. T. 66i. > ' » Chicago Packing & Provision Co. v. City of Chicago, 88 111. 221, 30 Am. Rep. 545. § 44) AMENDMENT AND REPEAL OF CHAKTER 141 let to its sewage beyond the city limits, and to control the nec- essary sewer system beyond its limits.*" And in Wisconsin it has been said that a municipality may for municipal purposes maintain and operate a stone quarry outside the city limits. V AMENDMENT AND REPEAL OF CHARTER 44. The inherent and plenary power of the Legislature over a municipal corporation extends to the amendment of its charter in such maimer and to such extent as may seem wise to the Legislature. A municipal charter, whether granted by special law or obtained under general laws, may be repealed by legislative act, either general or special, unless for- bidden by the Constitution. Amendment of Charter The right to amend the charter of a municipal corporation results from the inherent power of the Legislature over these agencies of government. The Legislature in the first instance decided and declared what powers should be exercised by the municipality, and how it should exercise them. New condi- tions arising may justly require a curtailing or enlargement of these powers, or a change in the mode of their exercise.*'' A new Legislature may assemble with new light upon the subject of corporations, and. in its wisdom, may add to or take from the municipal powers of one or of many corporations; and 10, City of Cold water v. Tucker, 36 Mich. 474, 24 Am. Rep. 601; Cummins v. City of Seymour, 79 Ind. 491, 41 Am. Kep. 618. 11 Schneider v. City of Menasha, 118 Wis. 298, 95 N. W. 94, 99 Am. St. Rep. 996. 12 City of Reading v. Keppleman, 61 Pa. 233; Crook v. People ex rel. Jayne, 106 111. 237; Meriwether v. Garrett, 102 U. S. 472, 26 L. Ed. 197; Daniel v. Mayor, etc., of City of Memphis, 11 Humph. (Tenn.) 582; Girard v. Philadelphia, 7 Wall. (U. S.) 1, 19 L. Ed. 53; City of Indianapolis v. Indianapolis Gaslight & Coke Co., 66 Ind. 396 ; People v. Morris, 13 Wend. (N. Y.) 325 ; City of Philadelphia v. Fox, 64 Pa. 169. I 142 THE CHAETEE (Ch. 5 this may be done by general laws or by special laws, when not constitutionally forbidden.^ ^ In other words, since mu- nicipal charters are not contracts, but are granted for public purposes, they may be amended at the pleasure of the Legis- lature.^* An entirely new charter may be enacted for the new corporation, or specific amendments made to the orig- inal.^" Amendments may be made to the general corporation laws, or new general laws may be enacted, which will have the effect of modifying the charter. Any or all of these modes of amendment are open to the Legislature, subject, of course, to constitutional limitations.^® If these laws, or any of them, in their operation and effect upon the municipal charter, are challenged in the courts for unconstitutionality, the question is to be tried by the same rules and standards as those arising IS Sloan V. State, 8 Blackf. (Ind.) 361; Crook v. People ex rel. Jayne, 106 111. 237; Churchill v. Walker, 68 6a. 681; Pancoast v. Troth, 34 N. J. Law, 379 ; Wallace v. Board of Trustees of Sharon Tp„ 84 N. C. 164 ; State ex rel. Mayor v. Palmer, 10 Neb. 203, 4 N. W. 966. But a general clause repealing all acts contrary to its provisions will not repeal the provisions of the charter, unless the intent of the Legislature to effect such repeal Is clear. Fish v. Branin, 23 N. J. Law, 484; Cross v. Mayor, etc., of Town of Morristown, 33 N. J. Law, 57 ; Bodine v. Common Council of City of Trenton, 36 N. J. Law, 198 ; Mayor, etc., of City of Cumberland v. Magruder, 34 Md. 381; People v. Clunie, 70 Cal. 504, 11 Pac. 775; City of East St. Louis V. Maxwell, 99 111. 439; Mayor, etc., of City of Griffin v. In- man, 57 Ga. 370 ; City of Harrisburg v. Sheck, 104 Pa. 53 ; Bond v. Hiestand, 20 La. Ann. 139 ; Tierney v. Dodge, 9 Minn. 166 (Gil. 153). 1* Guild V. City of Chicago, 82 111. 472 ; People v. Morris, 13 Wend. (N. Y.) 325 ; Wiggin v. City of Lewiston, 8 Idaho, 527, 69 Pac. 286 ; State V. Kolsem, 130 Ind. 434, 29 N. B. 595, 14 L. R. A. 566 ; Pro- basco V. Town of Moundsville, 11 W. Va. 501; City of Ensley v. Simpson, 166 Ala. 366, 52 South. 61. 15 1 Smith, Mun. Corp. § 116; Tied. Mun. Corp. §§ 32, 44. 16 State V. City of Toledo, 48 Ohio St. 112, 23 N. E. 1061, 11 L. K. A. 729; City of Indianapolis v. Indianapolis Gaslight & Coke Co., 66 Ind. 396; People v. Morris, 13 Wend. (N. Y.) ^25; Daniel v. May- . or, etc., of City of Memphis, 11 Humph. (Tenn.) 582 ; Crook v. Peo- ple ex rel. Jayne, 106 111. 237; State ex rel. Mayor v. Palmer, 10 Neb. 203, 4 N. W. 966; Rose v. Hardie, 98 N. C. 44, 4 S, E. 41; Churchill v. Walker, 68 Ga. 681. § 44) AMENDMENT AND REPEAL OF CHARTEE 143 Upon Other legislative enactments.^'' It is easy to see how a department of the government having power to create and to dissolve a municipality at pleasure should likewise have the power to change or alter its creature while existing under the jurisdiction of its creator. The only limitations upon this power are such as arise from conflict with vested rights, or from express constitutional provisions.^' The decisions upon the exercise of this power are in apparent conflict, but may, perhaps, all be harmonized by recognizing, here as elsewhere, the dual character of the municipality, and the two classes of functions it must perform. In some states this right to amend a municipal charter is limited by a constitutional provision guaranteeing local self-government to the people. This right of the people has been upheld in well-considered decisions in New York,\? Michigan,^" and Indiana.-^ The general doc- 17 Bowyer v. City of Camden. 50 N. J. Law, 87, 11 Atl. 137; New Bedford & F. S. K. Co. v. Achushnet S. R. Co., 143 Mass. 200, 9 N. E. 536 ; Board of Com'rs of Socorro County v. Leavitt, 4 N. M. (Gild.) 37, 12 Pac. 759; Moran v. Long Island City, 101 N. Y. 439, 5 N. E. 80; State v. Spaude, 37 Minn. 322, 34 N. W. 164; Thomason V. Ashworth, 73 Cal. 73, 14 Pac. 615; Smith v. Kernochen, 7 How. (U. S.) 198, 12 L. Ed. 666 ; Powell v. City of Parkersburg, 28 W. Va. 698; Commissioners oi King County v. Davies, 1 Wash. 290, 24 Pac. 540. 18 In East Hartford v. Hartford Bridge Co., 10 How. (U. S.) 534, 13 L. Ed. 528, Woodbury, J., said: " * * * One of the highest at- tributes of a Legislature is to regulate public matters with all pub- lie bodies, no less than the community, from time to time, in the manner which the public welfare may appear to demand. It can neither devolve these duties permanently upon other public bodies, nor permanently suspend or abandon them itself, without being usually regarded as unfaithful, and. Indeed, attempting what is wholly beyond its constitutional competency. It is bound, also, to continue to regulate such public matters and bodies as much as to organize them at first. 19 People V. Albertson, 55 N. Y. 50. 2 PEOPLE ex rel. LE ROY v. HURLBUT, 24 Mich. 44, 9 Am. Rep. 103, Cooley, Cas. Mun. Corp. 36 ; People ex rel. Board of Park Com'rs of Detroit v. Common Council of Detroit, 28 Mich. 228, 15 Am. Rep. 202. 21 STATE ex rel. JAMESON v. DENNY, 118 Ind. 382, 21 N. E. 144 THE CHARTER (Oh. 5 trine is as stated by the Supreme Court of Massachusetts : "* "We cannot declare an act of the Legislature invalid because it abridges the privileges of self-government in. a particular in regard to which such privilege is not guarantied by the pro- visions of the Constitution." And Mr. Justice Field, touch- ing the dissolution of the municipality of Memphis,^* said: "There is no contract between the state and the public that the charter of a city shall not at all times be subject to legislative control. There is no such thing as a vested right held by any individuals in the grant of legislative power to a municipality." And the Supreme Court of Maryland has declared that the recognition of a city charter in the Constitution of the state does not place it beyond legislative control.''* Nor will this power be impaired by the fact that the existing charter had been continued in force by a new Constitution of the State.^° And again, in .the case of Girard v. City of Philadelphia,^* the Supreme Court of the United States declared this legisla- tive power not to be affected by the fact that by the terms of its charter the city was made the trustee of a generous char- ity.^' Even the dissolution of a corporation trustee would not affect the trust, since a court of chancery would either as- sume its execution, or appoint a new trustee.^* 252, 4 L. R. A. 79, Cooley, Cas. Mun. Corp. 4 ; City of EvansviUe v. State ex rel. Blend, 118 Ind. 426, 21 N. E. 267, 4 L. R. A. 93. 2 2 Common wealth v. Plalsted, 148 Mass. 375, 19 N. B. 224, 2 L. R. A. 142, 12 Am. St. Rep. 566. 2 3 Meriwether v. Garrett, 102 U. S. 472, 26 L. Ed. 197. 24 Mayor, etc., of Baltimore v. State ex rel. Board of Police of City of Baltimore, 15 Md. 376, 74 Am. Dec. 572. 25 Wiley V. Corporation of BlufEton, 111 Ind. 152, 12 N. E. 165. 26 7 Wall. 1, 19 L. Ed. 53. 27 The courts, have likewise sustained similar devises for municipal charities by McDonogh for the poor of New Orleans and Baltimore (McDonogh v. Murdoch, 15 How. [U. S.] 367, 14 L. Ed. 732) ; by Mc- Micken for public education in Cincinnati (Perin v. Carey, 24 How. [U. S.] 465, 16 L. Ed. 701) ; and by Mullanphy for immigrants and travelers in St. Louis (Chambers v. City of St. Louis, 29 Mo. 543). 28 City of Philadelphia v. Fox, 64 Pa. 169; Smith v. Westcott, 17 R. I. 366, 22 Atl. 280, 13 L. R. A. 217; Girard v. Philadelphia, 7 § 44) AMENDMENT AND REPEAL- OF OHARTEB 145 In the case of self-chartered cities the statutes usually pro- vide specifically the method in which the charter may be amended.^!,? Repeal of Charter It is not the purpose here to consider the effect of repeal, but only the power and method thereof. We have seen that a municipal charter is not a contract, but merely a sovereign act of legislation, and therefore it is not preserved or pro- tected by the contract clause of the federal Constitution.^" In the exercise of its inherent sovereign power, the legislature may not only enact, but repeal, laws, in its discretion. A special charter is only a special 4aw, and is therefore subject to repeal in such manner as .the legislature may choose to proceed.'^ A municipal corporation organized under gen- eral incorporation laws becomes thereby only an agency of the government for more efficient local administration, and this agency may be revoked at any time by the state, as principal. ^- The property rights of the citizens, or of such creditors as there may be upon such repeal, is considered elsewhere. At present, we have to do only with the power of revocation. This power the state undoubtedly possesses, and it may terminate the agency at its pleasure by repeal of the charter which cre- ated the agency, whether this charter is under special or gen- eral law, for both are subject to repeal.'* Wall. (D. S.) 1, 19 L. Ed. 53; Luehrman v. Taxing Dlst. of Shelby, 2 Lea (Tenn.) 425. 2» Wolfe V. City of Moorehead, 98 Minn. 113, 107 N. W. 728. so Dartmouth College v. Woodward, 4 Wheat. (U. S.) 518, 4 L. Ed. 629. 31 Sloan V. State, 8 Blackf. (Ind.) 361. 32 Girard v. Philadelphia, 7 Wall. (U. S.) 1, 19 L. Ed. 53 ; Cobb v. Kingman, 15 Mass. 197 ; BERLIN v. GORHAM, 34 N. H. 266, Cooley, Cas. Mun. Corp. 15; Town of Granby v. Thurston, 23 Conn. 416; People V. Tweed, 63 N. Y. 202 ; Crook v. People ex rel. Jayne, 106 111. 237; Scovill v. City of Cleveland, 1 Ohio St. 126; Smith v. Vil- lage of Adrian, 1 Mich. 495; Lynch v. Lafland, 4 Cold. (Tenn.) 96; Boyd V. Chambers, 78 Ky. 140. 3 3 Jones V. Pensacola, Fed. Cas. No. 7,488; State v. Jennings, 27 Ark. 419; Town of Montpelier v. Town of East Montpelier, 29 Vt. COOL.MUN.COSP. — 10 146 THE CHARTEE (Ch. 5 Same — Method of Repeal illegal learning upon the subject of repeal of statutes is vast, varied, and confusing.! It is easy to see how a special statute may be repealed by another special statute, and also how a gen- eral statute may be repealed by another general statute. Lit- tle difficulty arises from such appropriate and express legisla- tion, but the subject of repeal of a general statute by a special one, and a special statute by a general one, has been a prolific source of legal disputation and judicial consideration. It has furnished a fine field for the excursions of ^ legal authors, and the amount of learning upon this subject of repeal of statutes in these matters is so great as to be embarrassing. A detailed examination of the* rules and cases upon this subject cannot be made within the prescribed limits of this work. . It must suf- fice to say that the fundamental doctrines of the law upon this subject are generally applicable to the repeal of charters of municipal corporations. These numerous cases and rules seem, for the most part, to be special instances under the par- ticular application of the general doctrine of repeal by im- plication. If the subsequent statute plainly manifests the un- mistakable intention of the Legislature that the provisions of the former statute shall no longer be in operation, then the repeal is effected; otherwise the former statute generally re- mains in operation, even though the two statutes may not be harmonious.^* A special charter may thus be repealed not only by a special act, but also by a general act of legislation de- claring that all municipal charters, or all of a certain class, in- cluding the one in question, are repealed, or enacting that the corporations are or shall be dissolved.^' However, as stat- 12, 67 Am. Dec. 748; Straw v. Harris, 54 Or. 424, 103 Pac. 777; City of Ensley v. Simpson, 166 Ala. 366, 52 South. 61. 3* Mayor, etc., of Montezuma v. Minor, 70 Ga. 191 ; State v. Clarke, 54 Mo. 17, 14 Am. Rep. 471; Village of -St. Johnsbury v. Thompson. 59 Vt. 300, 9 Atl. 571, 59 Am. Rep. 731; Gorum v. Mills, 34 N. J. Law, 177. 3 5 Meriwether v. Garrett, 102 U. S. 472, 26 L. Ed. 197; Crook v. People ex rel. Jayne, 106 111. 237 : Wallace v. Board of Trustees of § 44) AMENDMENT AND EEPEAL OF CHARTER 147 utes of a general nature do not repeal by implication charters and special acts passed for the benefit of particular munici- palities/" the passage of a general law relating to the incor- poration of cities does not, in the absence of a special provi- sion, repeal the charters of cities theretofore organized under special acts.'^ How the charter of a municipal corporation organized un- der general law may be practically repealed is an interesting matter of inquiry, and has been the subject of much judicial consideration. It has been urged that such a charter, being the result of the exercise of ministerial power, is not a proper subject for legislative repeal, and that the repeal of the gen- ral law under which it was organized will not affect the status of the municipality as a corporate body endowed with all nec- essary powers and functions.^' But this contention is based upon a misconception of the nature of a municipal corpora- tion, and the sovereign legislative power of the state. Of course, where the Constitution fqrbids, the Legislature may not pass any special statute affecting a municipal corporation, and therefore it may not repeal any charter by a special act. But in the absence of any such constitutional inhibition, the Legislature, exercising the plenary legislative power of the state, may repeal any municipal charter by any recognized mode of legislation.^" By a single act it may repeal a single Shar'on Tp., 84 N. C. 164; Daniel v. Mayor, etc., of City of Memphis, 11 Humph. (Term.) 582 ; State ex rel. Waring v. Mayor, etc.', of Mo- bile, 24 Ala. YOl ; People v. Morris, 13 Wend. (N. Y.) 325 ; Worthley V. Steen, 43 N. J. Law, 542; Sloan v. State, 8 Blackf. (Ind.) 361. 36 Commonwealth v. Summerville, 204 Pa. 300, 54 Atl. 27. 3 7 Tripp V. City of Yankton, 10 S. D. 516, 74 N. W. 447; Garrett v. Aby, 47 La. Ann. 618, 17 South. 238 ; Vacation of Henry St., 123 Pa. 346, 16 Atl. 785. 3 8 This assumes that the ministerial structure may outlive its legislative foundation — may stand after the substructure is removed. Such a postulate would equally well preserve a municipality after repeal of its special charter, which is impossible. Sloan v. State, 8 Blackf. (Ind.) 361. 3 9 Bloomer v. StoUey, 5 McLean, 158, Fed. Cas. No. 1,559; United States y. Port of Mobile (C. C.) 12 Fed. 768, note; Cooley, Const. Lim. (6th Ed.) c. 5, p. 147. 148 THE CHAETEB (Oh. 5 municipal charter, or the municipal charters of a certain class of corporations, or all charters of all the municipal corpora- tions within the state. Moreover, the Legislature may not only repeal the general incorporation act under which munici- pal corporations have been organized, but, unless forbidden by the Constitution, it^may by appropriate legislation, in effect, repeal the charter of any municipal corporation organized and existing under the general law. This is only to repeat that the Legislature, representing the power of the state, may, by special legislation, when not forbidden by the Constitution, re- call the governmental powers and authority with which it has endowed a municipal corporation as an agency of the state, in any manner whatsoever.*" As the form of the grant of power — that is, the giving of the charter — was not material, so the form of revocation of such power is not material. So a charter under a general incorporation act may be repealed by a special public law enacted for that particular purpose, as well as by a general statute, or by a constitutional provision necessarily repugnant to, and irreconcilable with, the previous law." 4oLuehrman v. Taxing Dist. of Shelby, 2 Lea (Tenn.) 425; Peo- ple' V. Morris, 13 Wend. (N. Y.) 325 ; City of Memphis v. Memphis Water Co., 5 Heisk. (Tenn.) 495 ; Buford v. State, 72 Tex. 182, 10 S. W. 401; State ex rel. Kansas City, St. J. & C. B. E. Co. v. Severance, 55 Mo. 378. 41 Mayor, etc., of City of Griffin v. Inman, 57 Ga. 370 ; Bond v. Hie- stand, 20 La. Ann. 139; Hammond v. Haines, 25 Md. 541, 90 Am. Dec. 77; State v. Wilson, 12 Lea (Tenn.) 246; State ex rel. Kansas City, St. J. & C. B. R. Co. v. Severance, 55 Mo. 378; Union Pac. Ry. Co. V. Cheyenne. 113 U. S. 516, 5 Sup. Ct. 601, 28 L. Ed. 1098. Ch. 6) PROCEEDINGS AND ORDINANCES 149 CHAPTER VI PROCEEDINGS AND ORDINANCES 45. The Governing Body. 46. Mode of Action. '47. Meetings. 48. Corporate Records. 49. Ordinances. 50. Same — Mode of Enactment 51. Essentials of Valid Ordinance. 52. Pines and Penalties. 53. Procedure. THE GOVERNING BODY 45. The corporate affairs of the municipality are managed by a governing body, called generally the common council. It is the general agent of the corporation for all purposes, and exercises all the corporate powers, not expressly committed by law to other boards or officers. In every municipality, whether created under general or special law, there is, and necessarily must be, a body or board constituted and empowered to exercise the powers delegated to the corporation by the state, and having immediate control and management of the affairs of the corporation. This govern- ing body is generally known as the common council,^ though in some classes of municipalities it is called the board of trus- tees,^ and in others the board of selectmen.' But by whatever name known this body is the general agent of the corporation, and exercises all the corporate powers not committed by law 1 Mayor, etc., of Baltimore v. Poultney, 25 Md. 18; Richards v. Clarksburg, 30 W. Va. 491, 4 S. E. 774. 2 Mintzer v. Schilling, 117 Cal. 361, 49 Pac. 209. 8 McFarland v. Gordon, 70 Vt. 455, 41 Atl. 507. 150 PROCEEDINGS AND ORDINANCES (Ch. 6 to other boards or officers.* It is composed of members called aldermen, assemblymen, trustees, or selectmen, as the case may be, who are chosen by the electors of the corporation in the manner prescribed by the charter or by general law. Generally this body is composed of a single chamber, but in some cities a bicameral system is in vogue." Mayor as Member of Council The mayor or chief executive of the municipality is gen- erally a member of the council and presides over it ex officio.^ But in many municipalities, especially the larger cities, the mayor is not a member of the council,'' and the presiding offi- cer is another person, either chosen by the members of the council from their own number or elected by the voters of the corporation to that special office.* The mayor's functions, in so far as they are connected with the proceedings of the council, are usually prescribed in the charter, and differ in various municipalities. In some of them, as the executive head of the corporation, he possesses the veto power.' In some, as the presiding officer, he has power to cast only the deciding vote in case of tie; ^^ in oth- * Moore v. Mayor, etc., of City of New York, 73 N. T. 238, 29 Am. Rep. 134; Richards v. Clarksburg, 30 W. Va. 491,, 4 S. E. 774. 5 The council is composed of a single chamber in Chicago, Detroit, New York, San Francisco, and Indianapolis. In Buffalo, Philadel- phia, St. Paul, Baltimore, and some other large cities there are two chambers. e City of Raleigh v. Sorrell, 46 N. C. 49; Price v. Beale, 5 Pa. Co. Ct. R. 491; People ex rel. Funk v. Wright, 30 Colo. 439, 71 Pac. 365 ; Griffin v. Messenger, 114 Iowa, 99, 86 N. W. 219 ; People r. Harshaw, 60 Mich. 200, 26 N. W. 879, 1 Am. St. Rep. 498. ' Jacobs V. Board of Sup'rs of City and County of San Francisco, 100 Cal. 121, 34 Pac. 630 ; Cochran v. McCleary, 22 Iowa, 75 ; Zane V. Rosenberry, 153 Pa. 38, 25 Atl. 1086. s State V. Kiichli, 53 Minn. 147, 54 N. W. 1069, 19 L. R. A. 779 ; Commonwealth v. Angle, 14 Pa. Co. Ct. R. 538. s Elliott, Mun. Corp. § 208. A city cannot by ordinance confer a greater power upon its mayor than that given by charter. Union Depot & R. Co. V. Smith, 16 Colo. 361, 27 Pac. 329. 1.0 LAWRENCE v. INGERSOLL, 88 Tenn. 52, 12 S. W. 422, 6 L. R. A. 308, 17 Am. St Rep. 870, Cooley, Cas. Mun. Corp. 149; Peo- § 45) THE GOVERNING BODY 151 ers, his functions and duties are the same as those of any other member of the board." The old common-law rule that the mayor was an integral part of a municipal corporation, and his presence necessary to a valid corporate meeting, does not prevail in America.'^ When he is absent from the city his office may be supplied by a pro tem. election from among the members of the board, and the person thus chosen mayor pro tem. has the powers and may perform the functions of the mayor for the time being.^' De Pacta Coimcil A council composed of de facto members in whole or in part may lawfully transact the corporate business.^* It is, of pie Y. Rector, etc., of Church of the Atonement, 48 Barb. (N. Y.) 603; Launtz v. People ex rel. Sullivan, 113 111. 137, 55 Am. Kep. 405; People ex rel. Funk v. Wright, 30 Colo. 439, 71 Pac. 365 ; Harris v. People ex rel. Squires, 18 Colo. App. 160, 70 Pac. 699 ; People ex rel. Argus Co. V. Bresler, 171 N. Y. 302, 63 N. E. 1093 ; Gate v. Martin, 70 N. H. 135, 46 Atl. 54, 48 L. R. A. 613 ; City of Somerset v. Smith, 105 Ky. 678, 49 S. W. 456; State ex rel. Young v. Yates, 19 Mont. 239, 47 Pac. 1004, 37 L. R. A. 205 ; Hecht v. Coale, 93 Md. 692, 49 Atl. 660; Bousquet v. State, 78 Miss. 478, 29 South. 399; Ott v. State ex rel. Lowery, 78 Miss. 487, 29 South. 520 ; State ex rel. Nel- son V. Mott, 111 Wis. 19, 86 N. W. 569. • 11 1 Dill. Mun. Corp. § 270. 12 Martindale v. Palmer, 52 Ind. 411. 13 Commonwealth v. Corcoran, 9 Kulp (Pa.) 507; People v. Blair, 82 111. App. 570 (affirmed in 181 111. 460, 54 N. E. 1024), where it was iield that if the mayor is in the city, but is absent from the meeting, either by reason of illness, executive business in another part of the city, or by choice, the power of the council is confined to the appointment of a temporary president or chairman, who will possess the authority of presiding officer only, and not that of mayor. "Trustees of Vernon Soc. v. Hills, 6 Cow. (N. Y.) 23, 16 Am. Dee. 429 ; Town of Decorah v. BuUis, 25 Iowa, 12; Koontz v. Burgess, etc., of Hancock, 64 Md. 134, 20 Atl. 1039; Williams v. Inhabitants of School Dist. No. 1, in Lunenburg, 21 Pick. (Mass.) 75, 32 Am. Dec. 243 ; Cochran v. McCleary, 22 Iowa, 75 ; Scovill v. Cleveland, 1 Ohio St. 126 ; Pritchett v. People, to use of Docker, 1 Oilman (111.) 529 ; Lockhart v. City of Troy, 48 Ala. 579 ; Laver v. McGlachlin, 28 Wis. 364; Pence v. City of Frankfort, 101 Ky. 534, 41 S. W. 1011; Kirker V. Crnciunati, 48 Ohio St. 507, 27 N. E. 898 ; Ensley v. Mayor, etc., of City of Nashville, 2 Baxt. (Tenn.) 144; ROCHE v. JONES, 87 Va. 484, 12 S. E 965, Cooley, Cas. Mun. Corp. 114; Dean v. Gleason, 152 PROCEEDINGS AND OKDINANCBS (Ch. & course, essential that there should be de jure ofSces.'^'' No corporate business can be transacted except by a body created by law and organized thereunder.^* If, therefore, under a mistaken supposition that a new general statute providing for a new governing body applies to a certain corporation, such new body is elected and organized, and proceeds to transact the corporate, business in lieu of the lawful body, its acts are void.^^ They lack the essentials of valid law establishing de jure offices in the corporation to give them a de facto stand- ing. But when there is a de jure council or governing body, the persons actually composing it and transacting its business constitute a de facto organization whose transactions are valid and binding.^' A conflict between two rival bodies claiming 16 Wis. 1 ; State v. Goowin, 69 Tex. 55, 5 S. W. 678 ; Dugan v. Far- rier, 47 N. J. Law, 383, 1 Atl. 751 ; Butler v. Walker, 98 Ala. 358, 13 South. 261, 39 Am. St. Rep. 61; State v. Gray, 23 Neb. 365, 36 N. W. 577; Stuart v. Inhabitants of Ellsworth, 105 Me. 523, 75 Atl. 59; Warner v. Coatesville Borough, 231 Pa. 141, 80 Atl. 576. 15 Norton v. Shelby County, 118 U. S. 425, 6 Sup. Ot. 1121, 30 L. Ed. 178; Hamlin v. Kassafer, 15 Or. 456, 15 Pae. 778, 3 Am. St. Kep. 176; Welch v. Ste. Genevieve, 1 Dill. (U. S.) 130, Fed. Oas. No. 17,372 ; Town of Decorah v. BuUis, 25 Iowa, 12 ; Hildreth's Heirs v. Mclntire's Devisee, 1 J. J. Marsh. (Ky.) 206, 19 Am. Dec. 61. But see ROCHE v. JONES, 87 Va. 484, 12 S. E. 965, Cooley,' Cas. Mun. Corp. 114. 16 Dabney v. Hudson, 68 Miss. 292, 8 South. 545, 24 Am. St. Rep. 276 ; Burt v. Railroad Co., 31 Minn. 472, 18 N. W. 285, 289. . IT Norton v. Shelby County, 118 U. S. 425, 6 Sup. Ct. 1121, 30 L. Ed. 178 ; People ex rel. HofEman v. Hecht, 105 Cal. 621, 38 Pac. 941, 27 L. R. A. 203, 45 Am. St. Rep. 96. But see ROCHE v. JONES, 87 Va. 484, 12 S. E. 965, Cooley, Cas. Mun. Corp. 114. 18 Trustees of Vernon Soc. v. Hills, 6 Cow. (N. Y.) 23, 16 Am. Dec. 429; Garland v. Custer County, 5 Mont 579, 6 Pac. 24; ROCHE V. JONES, 87 Va. 484, 12 S. E. 965, Cooley, Cas. Mun. Corp. 114; State ex rel. Newman v. Jacobs, 17 Ohio, 143 ; State v. Goowin, 69 Tex. 55, 5 S. W. 678 ; Jewell v. Gilbert, 64 N. H. 13, 5 Atl. 80, 10 Am. St. Rep. 357 ; Dean v. Gleason, 16 Wis. 1 ; Ensley v. Mayor, etc., of City of Nashville, 2 Baxt. (Tenn.) 144; Kirker v. Cincinnati, 48 Ohio St. 507, 27 N. E. 898; Butler v. Walker, 98 Ala. 358, 13 South. 261, 39 Am. St. Rep. 61 ; State v. Gray, 23 Neb. 365, 36 N. W. 577. Where one is appointed clerk of the common council by the vote of an alderman de facto, but not de jure, such appointment is valid. § 46) MODE OF ACTION 153 the corporate powers is properly the subject of adjudication in a quo warranto proceeding;^* but it has been held that persons unlawfully claiming to exercise the powers of mu- nicipal corporations may properly be enjoined in a chancery proceeding brought by lawful claimants of the offices.^' MODE OF ACTION 46. Where the method of exercising the corporate powers is prescribed by the charter or by general law, such method must be pursued in order that the acts of the council shall be valid. If no mode is pre- scribed, the council may exercise the power in any appropriate method. It has been pointed out heretofore that a municipal corpora- tion possesses only such powers as are granted in express words or those necessarily incident to or implied in those ex- pressly granted.^^ If the method of exercising the powers con- ferred by charter or statute is prescribed, that method must be followed in order to give validity to the acts of the council.^ ^ Consequently, if the charter or general law provides that certain powers can be exercised only by ordinance, that meth- od must be pursued, and an' attempt to act under the power by resolution will be ineffective.^' Thus it is generally held though the alderman be afterwards ousted by quo warranto. People V. Stevens, 5 Hill (N. Y.) 616. 19 1 Dill. Mun. Corp. §§ 202, 204. See Frey v. Michie, 68 Mich. 323, 36 N. W. 184 ; Cochran v. McCleary, 22 Iowa, 75. 20 Kerr v. Trego, ,47 Pa. 292. But see In re Sawyer, 124 U, S. 212, 8 Sup. Ct. 482, 31 L. Ed. 402. 21 See ante, § 40. 22 City of Nevada, to Use of GilfiUan, v. Eddy, 123 Mo. 546, 27 S. W. 471 ; Lincoln St. Ry. Co. v. City of Lincoln, 61 Neb. 109, 84 N. W. 802 ; City of Terre Haute v. Lake, 43 Ind. 480. See, also, ante, § 41. 2 3 City of Cape Girardeau v. Fougeu, 30 Mo. App. 551; Mayor, etc., of City of Paterson v. Barnet, 46 N. J. Law, 62 ; Mills v. City of San Antonio (Tex. Civ. App.) 65 S. W. 1121. See, also, City of 154 PROCEEDINGS AND ORDINANCES (Ch. 6 ' that the compensation of city officers must be fixed by ordi- nance.^* And the council cannot by resolution abolish an of- fice created by ordinance.^° On the other hand, when the council is vested with full pow- er over the subject, and no particular method for the exer- cise of the power is specified, the city authorities may exer- cise it in any yvay that is most convenient, and may act by resolution or other appropriate manner, and their action will be valid and as effectual as it would be by ordinance for the same purpose. ^^ Functions Discretionary and Ministerial Moreover, it should also be remembered that corporate pro- ceedings cannot be conducted by individual aldermen, nor even by the mayor.^'' There must be a meeting for deliberation, consultation, and corporate action.^* Nor can any public powers or matters of discretion be delegated by the council to others.^ ° They must perform in person the discretionary and Brazil v. McBrlde, 69 Ind. 244. Distinction between ordinance and resolution, see post, § 49. 24 City of Central v. Sears, 2 Colo. 588; Smith y. Commonwealth ex rel. Dillon, 41 Pa. 335. And see Brand v. City of San Antonio (Tex. Civ. App.) 37 S. W. 340. 25 City of San Antonio v. Micklejohn, 89 Tex. 79, 33 S. W. 735. 26 CITY OF CRAWFORDSVILLE T. BRADEN, 130 Ind. 149, 28 N. E. 849, 14 L. R. A. 268, 30 Am. St. Rep. 214, Cooley, Oas. Mun. Corp. 100; McGavock v. City of Omaha, 40 Neb. 64, 58 N. W. 543; Brady v. City of Bayonne, 57 N. J. Law, 379, 30 Atl. 968; Beers v. Dalles City, 16 Or. 334, 18 Pac. 835 ; City of Chi,cago v. McKeChney, 91 111. App. 442 ; Lincoln St. Ry. Co. v. City of Lincoln, 61 Neb. 109, 84 N. W. 802 ; State ex rel. City of Carthage v. Cowgill & Hill Mill Co., 156 Mo. 620, 57 S. W. 1008. ~ 2 7 McCortle v. Bates, 29 Ohio St. 419, 23 Am. Rep. 758; Strong v. Dist. of Columbia, 4 Mackey (D. 0.) 242; Day v. Green, 4 Cush. (Mass.) 433 ; City of East St. Louis v. Wehrung, 50 111. 28. 2 8 Commonwealth v. Howard, 149 Pa. 302, 24 Atl. 308; City of Little Bock v. Board of Improvements, 42 Ark. 152; Deichsel v. Town of Maine, 81 Wis. 553, 51 N. W. 880 ; People v. Stowell, 9 Abb. N. C. (N. Y.) 456; Dey v. Mayor, etc., of Jersey City, 19 N. J. Eq. 412 ; City of Baltimore v. Poultney, 25 Md. 18. ■ 29 City of St. Louis v. Russell, 116 Mo. 248, 22 S. W. 470, 20 L. R. A. 721 ; In re WILSON, 32 Minn. 145, 19 N. W. 723, Cooley, Cas. § 46) MODE OF ACTION 155 public duties imposed upon them.'" Purely ministerial and executive functions may be, often must be, committed to oth- ers for performance.'^ Mun. Corp. 116, 349; Minneapolis Gaslight Co. v. City of Minneapo- lis, 36 Minn. 159, 30 N. W. 450; JEWELL BELTING CO. v. VIL- LAGE OP BERTHA, 91 Minn. 9, 97 N. W. 424, Cooley, Gas. Mun. Corp. 168; Hydes v. Joyes, 4 Bush (Ky.) 464, 96 Am. Dec 311; State V. Mayor, etc., of Jersey City, 25 N. J. Law, 309; City of In- dianapolis V. Indianapolis Gas Light & Coke Co., 66 Ind. 396; Thomp- son V. Schermerhorn, 6 N. Y. 92, 55 Am. Dec. 385 ; Johnston v. Mayor, etc., of City of Macon, 62 Ga. 645 ; McCrowell v. City of Bristol, 89 Va. 652, 16 S. E. 867, 20 L. R. A. 653. In Whyte v. Mayor, etc., of Town of Nashville, 2 Swan (Tenn.) 364, a case of sidewalk assess- ment, it was held that a municipal corporation cannot delegate pow- ers conferred upon and to be exercised by it to a street committee. See Tomlin v. City of Cape May, 63 N. J. Law, 429, 44 Atl. 209. so City of Kankakee v. Potter, 119 111. 324, 10 N. E. 212; Ferine Contracting & Paving Co. v. City of Pasadena, 116 Cal. 6, 47 Pac. 777 ; Hunt v. City of Boonville, 65 Mo. 620, 27 Am. Rep. 299 ; Thomp- son V. Schermerhorn, supra; Birdsall v. Clark, 73 N. Y. 73, 29 Am. Rep. 105 ; Naegle v. City of Centralia, 81 111. App. 334 ; Matthews v. City of Alexandria, 68 Mo. 115, 30 Am. Rep. 776. But where special authority to delegate this power by the legislature is given, such delegation is valid. Hitchcock v. Galveston, 96 U. S. 341, 24 L. Ed. 659. See, also, Lord v. City of Oconto, 47 Wis. 386, 2 N. W. 785; Davis V. Read, 65 N. Y. 566 ; Ould v. City of Richmond, 64 Va. 464, 14 Am. Rep. 139 ; Phelps v. Mayor, etc., of New York, 112 N. Y. 216, 19 N. E. 408, 2 L. R. A. 626. 31 Whitney v. City of New Haven, 58 Conn. 450, 20 Atl. 666; Bul- litt County T. Washer, 130 U. S. 142, 9 Sup.' Ct. 499, 32 L. Ed. 885 ; Bissell V. JefEersonville, 24 How. 287, 16 L. Ed. 664 ; Hitchcock v. Galveston, 96 U. S. 341, 24 L. Ed. 659; Damon v. Inhabitants of Granby, 2 Pick. (Mass.) 345 ; Gregory v. City of Bridgeport, 41 Conn. 76, 19 Am. Rep. 458, where, power being expressly granted to "or- dain by-laws relating to wharves," and a general authority to appoint necessary officers to carry by-laws Into effect, an ordinalice which appointed a superintendent of wharves, and empowered him to reg- ulate the mooring of vessels, was held to be valid. See, also, Gilmore v. City of Utica, 131 N. Y. 26, 29 N. E. 841 ; Holland v. State ex rel. Duval County, 23 Fla. 123, 1 South. 521 ; City of Alton v. MuUedy, 21 111. 76 ; State ex rel. City of Columbus v. Hauser, 63 Ind. 155 ; Collins V. Holyoke, 146 Mass. 298, 15 N. E. 908 ; Main v. Ft. Smith, 49 Ark. 480, 5 S. W. 801 ; Kramrath v. City of Albany, 53 Hun, 206, 6 N. Y. Supp. 54; Commonwealth v. City of Pittsburgh, 14 Pa. 177; Dorey v. Boston, 146 Mass. 336, 15 N. E. 897 ; City of Burlington v. Dennison, 42 N. J. Law, 165. 156 PROCEEDINGS AND ORDINANCES (Ch. & MEETINGS 47. The corporate affairs of a municipality must be trans- acted at a corporate meeting of the members of the governing body, duly convened at the stated or notified time and place, a quorum being present^ and a majority thereof expressly favoring the ac- tion taken. As pointed out in the preceding section, corporate affairs cannot be conducted by individual members of the council, but there must be meetings for deliberation, consultation, and corporate action. Meetings are of two kinds, stated or reg- ular, and called or special; the stated meeting being fixed in time and place by charter, ordinance, or usage, and the called meeting, one specially convened in emergency. The time and place of a stated meeting of the council may be fixed by the charter, ordinance, or otherwise.*" But, even where the char- ter provides that the council shall meet at such time and place as they by resolution may direct, such provision is not prohibitory, and will not prevent a valid special meeting being held at other times and places.^* It is usually provided that such special meetings may be called by the mayor or by a certain number of the aldermen whenevei' necessity therefor may arise.'* 82 North .V. Gary, 4 Thomp. & C. (N. Y.) 357; Shugars v. Hamilton,. 122 Ky. 606, 92 S. W. 564 ; State v. Kantler, 33 Minn. 69, 21 N. W. 856, liolding that in the absence of other provisions fixing the time of holding stated meetings the council may fix the time hy motion. 83 State ex rel. Parker v. Smith, 22 Minn, 218. 84 MAGNEAU V. CITY OF FREMONT, 30 Neb. 843, 47 N. W. 280, 9 L. R. A. 786, 27 Am. St. Rep. 436, Cooley, Cas. Mun. Corp. 119; Sommercamp v. Kelley, 8 Idaho, 712, 71 Pac. 147; Moore v. Perry, 119 Iowa, 423, 93 N. W. 510; McGrath v. City of Newton, 29 Kan. 364 (holding that meeting may be called by acting mayor); City of Auburn v. Union Water Power Co„ 90 Me. 71, 37 Atl. 335. § 47) MEETINGS 157 Notice Of a stated meeting every member has due notice by the statute, rule, or usage under which it is held;"^ but of the called rneeting reasonable notice of the time and place is re- quired to be given, if practicable, to every member of the gov- erning body.'® If extraordinary business is to be transacted, then notice must also be given of its nature, but not so of or- dinary municipal affairs.*^ Actual presence of a member not protesting at a called meeting is equivalent to notice.^' All members must be present or notified to make a valid special meeting.** The notice must be personally served,*" if prac- ticable, upon every member of the governing body, excepting only those who are absent from the state or whose where- abouts is unknown.*^ Unnotified members who are actually present may avoid the .presumption of notification by protest- ing against the meeting for want of notice.** Adjoume'd Meeting A valid stated or called meeting has the implied corporate power to adjourn to. a future day and then resume its busi- 85 Fitzgerald v. Pawtucket St Ry. Co., 24 R. I. 201, 52 Atl. 887 ; Willc. Mun. Corp. § 59. 3 8 Lord V. City of Anoka, 36 Minn. 176, 30 N. W. 550 ; Shugars v. Hamilton, 122 Ky. 606, 92 S. W. 564. But see Lewick v. Glazier, 116 Mich. 493, 74 N. W. 717. 37 Whitney v. City of New Haven, 58 Conn. 450, 20 Atl. 666; Rich- ardson V. City of Omaha, 74 Neb. 297, 104 N. W. 172 ; Mills v. City of San Antonio (Tex. Civ. App.) 65 S. W. 1121. 88 Lord V. City of Anoka, 36 Minn. 176, 30 N. W. 550; Turner v. Hutchinson, 113 Mich. 245, 71 N. W. 514; Ryan v. Mayor, etc., of City of Tuscaloosa, 155 Ala. 479, 46 South. 638. 3 9 Moore v. Perry, 119 Iowa, 423, 93 N. W. 510; State ex rel. Parker v. Smith, 22 Minn. 218 ; MAGNEAU v. CITY OF FREMONT, 30 Neb. 843, 47 N. W. 280, 9 L. R. A. 786, 27 Am. St. Rep. 436, Cool- ey, Cas. Mun. Corp. 119 ; Shaw v. Jones, 6 Ohio Dee. 453, 4 Ohio N. P. 372 ; Schofield v. Village of Tampico, 98 111. App. 324. *o Lord V. City of Anoka, 36 Minn. 176, 30 N. W. 550; , People v. Batchelor, 22 N. Y. 128. *i City of Knoxville v. Knoxville Water Co., 107 Tenn. 647, 64 S. W. 1075, 61 L. R. A. 888; State ex rel. Harty v. Kirk, 46 Coiin. 395; Lewick V. Glazier, 116 Mich. 493, 74 N. W. 717. 4 2 Lord V. Anoka, 36 Minn. 176, 30 N. W. 550. Of. Mitchell Coun- ty Sup'rs V. Horton, 75 Iowa, 271, 39 N. W. 394. 158 ' PROCEEDINGS AND ORDINANCES (Ch. 6 ness.*^ This adjourned meeting is merely a continuation of the original meeting, and notice is not required for it.** At such meeting any business may be transacted which could properly have come before the board at the original meeting, and the mode of proceeding at such meeting is the same as that in the original meeting.*" Quorum A majority of the body constitute a quorum, unless it is otherwise provided by law.*" A quorum is competent tp 4 3 Ex parte Mirande, 73 Cal. 365, 14 Pac. 888; People v. Batchelor, 22 N. Y. 128 ; Warner v. Mower, 11 Vt. 385. As to appointment of a presiding officer pro tempore, see Keith v. City of Covington, 109 Ky. 781, 60 S. W. 709, 22 Ky. Law Rep. 1414. See, also, People ex rel. Lewis v. Brush, 83 Hun, 613, 31 N. Y. Supp. 586; Truman v. Boar5 of Supervisors of City and County of San Francisqo, 110 Cal. 128, 42 Pac. 421; Sa'leno v. City of Neosho, 127 Mo. 627, 30 S. W. 190, 27 L. R. A. 769, 48 Am. St. Rep. 653 ; Cline v. City of Seattle, 13 Wash. 444, 43 Pac. 367. *4 State ex rel. Parker v. Smith, 22 Minn. 218; Chosen Freehold- ers of Hudson County v. State, 24 N. J. Law, 718 ; Ex parte Wolf, 14 Neb. 24, 14 N. W. 660. A meeting of a city council, at which less than a quorum was present, adjourned to a future day, at which time another adjournment was had. Held tliat, though the first adjournment was irregular because of the absence of a quorum, it would be presumed that a quorum was present at the Second meet- ing, and that a regular adjournment was then had. Moore v. Perry, 119 Iowa, 423, 93 N. W. 510. *5 State ex rel. Parker v. Smith, 22 Minn. 218; Borough of Avoca V. PIttston, J. & A. St. Ry. Co., 7 Kulp (Pa.) 470 ; MAGNEAU v. CITY OF FREMONT, 30 Neb. 843, 47 N. W. 280, 9 L. R. A. 786, 27 Am. St. Rep. 436, Oooley, Cas. Mun. Corp. 119; Stiles v. City of Lambert- ville, 73 N. J. Law, 90, 62 Atl. 288. *8 Heiskell v. Mayor and City Council of Baltimore, 65 Md. 125, 4 Atl. 116, 57 Am. Rep. 308 ; Barnert v. Paterson, 48 N. J. Law, 395, 6 Atl. 15 ; City of Benwood v. Wheeling By. Co., 53 W. Va. 465, 44 S. E. 271 ; Williams v. Brace, 5 Conn. 190. But where the council con- sists of six members, with the mayor as presiding officer, the mayor and three of the councilmen do not constitute a quorum, and their acts are void. City of Sonlerset v. Somerset Banking Co., 109 Ky. 549, 60 S. W. 5, 22 Ky. Law Rep. 1129. See State ex rel. City of Carthage v. Cowgill & Hill Milling Co., 156 Mo. 620, 57 S. W. 1008. As the mayor, though a member of the council, is entitled to vote only in case of a tie, he cannot be counted as a member to make a quorum. McLean v. City of East St. Louis, 222 111. 510, 78 N. E. 815. § 47) MEETINGS 159 transact corporate business,*' and a majority of such quorum is sufficient to take any lawful action, or make an election,** unless the law governing the corporation requires a greater number.*" Thus, if the body be composed of nine, then five make a lawful meeting and three of these may pass any ordi- nance or resolution, or commit the corporation to legal ob- ligation.'" If the governing body is composed of two parts, these rules will apply to each separate part. Mode of Proceeding When a corporate meeting is duly convened and organized, its m'ode of procedure, wherein not otherwise expressly pre- scribed by statute, charter, or by-law, is in accordance with the general rules governing parliamentary bodies in America.'^ The ayes and noes may be called upon any v6te not taken by ballot ; °^ the presence of a quorum is necessary at every vote of the council;"* no measure can be carried except by af- *7 Mueller v. Egg Harbor City, 55 N. J. Law, 245, 26 Atl. 89 ; La- bourdette v. First Municipality of New Orleans, 2 La. Ann. 527 ; Hutchinson v. Borough of Belmar, 61 N. J. Law, 443, 39 Atl. 643. 48 Wheeler v. Commonwealth, 98 Ky. 59, 32 S. W. 259; Thurston v. Huston, 123 Iowa, 157, 98 N. W. 637; Cadmus v. Farr, 47 N. J. Law, 208. Some cases rule that assent of a majority will be pre- sumed. See CoUopy v. Cloherty (Ky.) 39 S. W. 431. * 9 State V. Dickie, 47 Iowa, 629; Cascaden v. City of Waterloo, 106 Iowa, 673, 77 N. W. 333 ; Blood v. Beal, 100 Me. 30, 60 Atl. 427 ; Wood V. Gordon, 58 W. Va. 321, 52 S. E. 261. 5 But if the body consist of twelve councilmen, seven is a quorum, and four may pass an act. See Wheeler v. Commonwealth, 98 Ky. 59, 32 S. W. 259. 01 1 Dill. Mun. Corp. § 288. 5 2 Hicks v. Long Branch Commissioner, 69 N. J. Law, 300, 54 Atl. 568, 55 Atl. 250. 5 3 State ex rel. Walden v. Vanosdal, 131 Ind. 388, 31 N. E. 79, 15 L. R. A. 832; City of Oakland v. Carpentier, 13 Cal. 540; Buell v. Buckingham, 16 Iowa, 284, 85 Am. Dec. 516; Brown v. District of Columbia, 127 U. S. 579, 8 Sup. Ct. 1314, 32 L.Ed. 262; City of Bal- timore V. Poultney, 25 Md. 18 ; Dey v. Mayor, etc., of Jersey City, 19 N. J. Eq. 412; Ferguson v. Chittenden County, 6 Ark. 479; Rush- ville Gas Co. v. City of Rushville, 121 Ind. 206, 23 N. E. 72, 6 L. R. A. 315, 16 Am. St. Rep. 388 ; Barnert v. Paterson, 48 N. J. Law, 395, 160 PROCEEDINGS AND ORDINANCES (Cll. 6 I firmative vote of a majority of all present;"* action taken may be rescinded at any time before the rights of third par- ties have vested thereunder ; *" the board may rely and take action upon reports of its committees without further investi- gation; ^'' and generally such course of procedure may be followed as is proper in legislative bodies under, parliamentary law." It is to be understood, of course, that the proceedings of a municipal corporation are the proper subject of statutory reg- ulation, and in many cases also of municipal ordinance. Usu- ally, indeed, the charter prescribes the governing body, the qualifications and functions of its members, the powers- of the mayor, the time and place of the meetings, the quorum, and the other matters treated of in this section. In such cases these regulations by statute, charter, and ordinance are con- trolling ; and whenever they are mandatory they must be pur- sued in order to give validity to the proceedings."* 6 Atl. 15 ; Heiskell v. Mayor and City Council of Baltimore, 65 Md. 125, 4 Atl. 116, 5T Am. Kep. 308. siLabourdette v. First Municipality of New Orleans, 2 La. Ann. 527; 1 Dill. Mun. Corp. § 282; LAWRENCE v. INGERSOLL, 88 Tenn. 52, 12 S. W. 422, 6 L. R. A. 308, 17 Am. St. Rep. 870, Cooley, Cas. Mun. Corp. 149 ; State v. Prlester, 43 Minn. 373, 45 N. W. 712. A resolution of a city council, not adopted by a majority of the whole number of the council, as required by statute, is void. Cas- caden v. City of "Waterloo, 106 Iowa, 673, 77 N. W. 333. 5 5 State ex rel. Rosenheim v. Hoyt, 2 Or. 246; ReifE v. Conner, 10 Ark. 241; Sank v. City of Philadelphia, 4 Brewst. (Pa.) 133; State v. Foster, 7 N. J. Law, 101 ; State ex rel. Coogan v. Barbour, 53 Conn. 76, 22 Atl. 686, 55 Am. Rep. 65. 56 Dorey v. Boston, 146 Mass. 336, 15 N. E. 897; Main v. Ft?. Smith, 49 Ark. 480, 5 S. W. 801; BIssell v. JefEersonville, 24 How. 287, 16 L. Ed. 664; Salmon v. Haynes, 50 N. J. Law, 97, 11 Atl. 151. A municipal council has the absolute right to make and unmake Its own committees by a majority vote. Dreyfus v. Lonergan, 73 Mo. App. 336. . 57 1 Dill. Mun. Corp. § 288 ; Tied. Mun. Corp. § 98., But standing rules of council, and mere rules of parliamentary law, not enjoined by statute, may be abolished, modified, or waived at the will of the council making them. In re Broad St., 9 Kulp (Pa.) 37; Simmer- man V. Borough of Wild wood, 60 N. J. Law, 367, 40 Atl. 1132; Whit- ney V. Village of Hudson, 69 Mich. 189, 37 N. W. 184. 5 8 See ante, § 41. § 48) COKPOEATE EEC0KD3 161 CORPORATE RECORDS 48. Minutes of the proceedings at a meeting of the council duly recorded in the books of the municipality are public records, and as such are competent evidence either for or against the corporation, zis well as third parties, of the corporate acts and proceed- ings tlierein recorded. It is usually provided in the charter of a municipal corpora- tion or by the general law that a record shall be kept of the proceedings of the common council,"' though it has been held that the unrecorded acts of the governing body are valid, if clearly proved. °'' The minutes of council proceedings are usually kept in a rec- ord book provided for that purpose, and, having been kept by the clerk or recorder in memoranda during the meeting, are thereafter formally written upon the minute book, and, being read and approved at the ensuing meeting, are authenticated by the signature of the mayor; thereafter they cannot be changed except by the vote of the council.®^ In order to make the record conform to the books, the council, like a court of B9 City of Louisville v. McKegney, 70 Ky. (7 Bush ) 651 ; O'Neil v. Tyler, 3 N. D. 47, 53 N. W. 434 ; City of Green Bay v. Brauns, 50 Wis. 204, 6 N. W. 503 ; People ex rel. Cady v. Ihnken, 129 Mich. 466, 89 N. W. 72; Goodyear Rubber Co. v. City of Eureka, 135 Cal. 613, 67 Pac. 1043. 60 Barton v. City of Pittsburg, 4 Brewst. (Pa.) 373; Borough of Avoca V. Pittston, J. & A. St. Ry. Co., 7 Kulp (Pa.) 470; Village of Belknap v. Miller, 52 111. App. 617. A failure of a city to comply with a charter provision that the ordinance shall be recorded does not render the ordinance void, the provision being merely directory. Allen V. City of Davenport, 107 Iowa, 90, 77 N. W. 532. 611 Dill. Mun. Corp. § 297 ; McClain v. McKisson, 15 Ohio Cir. Ct. R. 517, 8 O. C. D. 357. But it has been held in several cases that so long as tha records are in the custody of the clerk he mar amend them according to his knowledge of the truth. See Mott v. Reynolds, 27 Vt. 206; Ryder's Estate v. City of Alton, 175 111. 94, 51 N. E. S21. Cool.Mtjn.Coep. — 11 162 rr.ocEEDiNGS and. ordixanx'es (Ch. (5 record, may at a subsequent meeting amend its record by a minute entry nunc pro tunc.^^ Such correction of minutes can only be made by the body which has transacted the business ; a new. council cannot amend the record of its predecessor.'^ These minutes thus recorded and ■ authenticated, being made of public affairs, usually have the same probative force and character as other public records/* Evidence Aliunde It has been ruled in many cases that this record is not ex- clusive, but that other competent evidence may be given of corporate proceedings. °° Such rulings are common in the New England states in regard to records of town meetings'; but these cases cannot be regarded as precedents for the mu- nicipal record because of the widely different modes of pro- ceeding and the lack of means of corporate authentication: The Supreme Court of the United States has ruled that the acts of a corporation may be proved otherwise than by its rec- ords or written documents, even though it was its duty to keep a fair and regular record of its proceedings.'" ^The rights of creditors or of third parties are not to be prejudiced by the 62 Becker v. City of Henderson, 100 Ky. 450, 38 S. W. 857; White V. Town of Olarksville, 75 Ark. 340, 87 S. W. 630; City of Logans- port v. Crockett, 64 Ind. 319 ; City of Anniston v. Davis, 98 Ala. 629, 13 South. 331, 39 Am. St. Rep. 94; Everett v. Deal, 148 Ind. 90, 47 N. E. 219 ; Pontiac v. Oxford, 49 Mich. 69, 12 N. W. 914 ; May- hew v. Gay Head Dist, 13 Allen (Mass.) 129 ; Commissioners' Court of Lowndes County v. Hearne, 59 Ala. 371; Ryder's Estate v. City of Alton, 175 111. 94, 51 N. E. 821. 63 City of Covington v. Ludlow, 1 Mete. (Ky.) 295; Howeth v. Mayor, etc., of Jersey City, 30 N. J. Law, 93 ; Graham v. City of Oarondelet, 33 Mo. 262. 64 Ryder's Estate v. City of Alton, 175 111. 94, 51 N. E.'821; Moore V. Town of Jonesboro, 107 Ga. 704, 33 S. E. 435 ; City of Pittsburg V. Cluley, 74 Pa. 262 ; Wild v. Deig, 43 Ind. 455, 13 Am. Rep. 399 ; Taylor v. Henry, 2 Pick. (Mass.) 403 ; People ex rel. Cady v. Ihnkeu, 129 Mich. 466, 89 N. W. 72. 65 State ex rel. Hosford v. Kennedy, 69 Conn. 220, 37 Atl. 503; City of Indianapolis v. Imberry, 17 Ind. 175 ; Darlington v. Common- wealth, to' Use of City of Allegheny, 41 Pa. 68. 6 6 Bank of United States v. Dandridge, 12 Wheat. 64, 6 L. Ed. 552 § 48) CORPORATE RECORDS 1G3 neglect of the council to keep proper minutes.'^ The acts and proceedings of the corporation may be proved by any competent evidence aliunde the record kept by it i^ cases where corporate obligation and liability are involved."' Rigid rules of evidence have often been relaxed on a show- ing that municipal records have been carelessly and imper- fectly kept ; and the decisions in regard to varying, altering, and amending such records are not uniform.*" Inspection The right of members of a municipal corporation to inspect the corporate records has been strictly upheld by the courts, and fewer restrictions laid upon it than in case of private cor- porations.'''' Any inhabitant or taxpayer has been held enti- tled to inspect the record of the corporate proceedings, and to have a copy thereof on payment of the usual fee.''^ This right has also been extended to the other corporate records, such as treasurer's and comptroller's books of account, tax- books, and voting lists.'^ Other persons also, having an inter- est under these proceedings or in these accounts, are likewise entitled to inspection and copy.'^^ 6T School Dlst. No. 2 v. Clark, 90 Mich. 435, 51 N. W. 529; City of of San Antonio v. Lewis, 9 Tex. 69 ; Bigelow v. Inhabitants of City of Perth Amboy, 25 N. J. Law, 297. « 8 Hutchinson v. Pratt, 11 Vt. 402; Langsdale v. Bonton, 12 Ind. 467. See Barr v. City of New Brunswick, 58 N. J. Law, 255, 33 Atl. 477. 69 Westerhaven v. Clive, 5 Ohio, 136; Athearn v; Independent Dist. of Millersburg, 33 Iowa, 105 ; Boss v. City of Madison, 1 Ind. 281, 48 Am. Dec. 361 ; Trustees of Hazelgreen v. McNabb, 64 S. W. 431, 23 Ky. Law Rep. 811. * 70 1 Dill. Mun. Corp. § 303. ' 71 People ex rel. Bishop v. Walker, 9 Mich. 328. 72 People V. Cornell, 47 Barb. (N. T.) 329. 7S Grant. Corporations, § 311. 164 PROCEEDINGS AND ORDINANCES (Ch. G ORDINANCES 49. An ordinance is a by-law of a municipality, enacted by the council or governing body as a local law pre- scribing a general and permanent rule for persons or things within the corporate boundaries. A resolution is an appropriate form for an act of tempo- rary character, not prescribing a permanent rule of government. "By-lavy" is the general term applicable to the self-adopted rules of all classes of corporations ; "or^jnancg" is used to de- scribe the self-governing rule of a municipality.'* It is not so comprehensive as "regulation" and is more solemn and formal than "resolution." '" "Ordinance" is a continuing regulation, while "resolution," though sometimes held to enact "a law, is usually declared not to be the equivalent of an ordinance, but rather an act of a temporary character, not prescribing a permanent rule of government.'^ A resolution is the appro- priate form of corporate action for the removal of an oiificer, the acceptance of a dedication, the levying of a tax for a spe- cific purpose, the purchase of corporate property, the making of corporate contracts, and the ratification of acts of agents, and the like." The authority of the Legislature to delegate to 74 Commonwealtli v. Turner, 1 Cush. (Mass.) 493; Citizens' Gas & Mining Co. v. Elwood, 114 Ind. 332, 16 N. E. 624. 7 5Blanchard v. Bissell, 11 Ohio St. 96; Taylor v. Lambertville, 43 N. J. Eq. 107, 10 Atl. 809. But a .resolution passed with all the formalities and notified to the public in the same manner as an ordinance might have the force and effect of an ordinance. City of Cape Girardeau v. Fougeu, 30 Mo. App. 551; Steenerson v. Fontaine, 106 Minn. 225, 119 N. W. 400. 76 Butler V. City of Passaic, 44 N. J. Law, 171; Merchants' Union Barb Wire Co. v. Chicago, B. & Q. Ry. Co., 70 Iowa, 105, 28 N. W. 494 ; Newman v. City of Emporia, 32 Kan. 456, 4 Pac. 815. 7 7 Egan V. Cjty of Chicago, 5 111. App. 70; City of Indianapolis v. Imberry, 17 Ind. 175; Sower v. City of Philadelphia, 35 Pa. 231; Illinois Trust & Savings Bank v. Arkansas City, 76 Fed. 271, 22 § 50) OKDINANCES — MODE OF ENACTMENT 165 a municipal corporation this power of local legislation as to public affairs affecting the municipality, though challenged often and in nearly all the states, has been uniformly upheld by the courts, and must be regarded as settled law.'* SAME— MODE OF ENACTMENT SO. Where the chanter, or the general law, prescribes the procedure for the enactment of ordinances, it must be complied with, else the drdinafice is void. The procedure to be observed in the enactment of ordinances varies greatly according to the charters of the various mu- nicipalities or the statutes of the various states. Nevertheless, C. C. A. 171, 34 L. E. A. 518 ; City of Cape Girardeau v. Fougeu, 30 Mo. App. 551; Central R. Co. v. City of Elizabetli, 35 N. J. Law, 359 ; Atchison Board of Education v. De Kay, 148 U. S. 591, 13 Sup. Ct. 706, 37 L. Ed. 573. 7 8 Des Moines Gas Co. v. City of Des Moines, 44 Iowa, 508, 24 Am. Eep. 756; State v. Tryon,.39 Conn. 183; Mason v. City of Shawnee- town, 77 111. 533 ; CITY OF DULUTH v. KRUPP, 46 Minn. 435, 49 N. W. 235, Cooley, Cas. Mun. Corp. 250; State ex rel. Pearson v. Hayes,' 61 N. H. 314 ; Markle v. Town Council of Akron, 14 Ohio, 586; Ex parte Christensen, 85 Cal. 208, 24 Pac. 747; Village of Gloversville v. Howell, 70 N. Y. 287; Batsel v. Blaine (Tex. App/) 15 S. W. 283 ; State ex rel. Smith v. Anderson, 26 Fla. 240, 8 South. 1; Trenton Horse R. Co: y. Inhabitants of City of Trenton, 53 N. J. Law, 132, 20 Atl. 1076, 11 L. R. A. 410 ; City of Indianapolis v. Indianapolis Gaslight & Coke Co., 66 Ind. 396 ; City of Indianapolis V. Consumers' Gas Trust Co., 140 Ind. 107, 39 N. E. 433, 27 L. R. A. 514, 49 Am. St. Rep. 183; Perdue v. Ellis, 18 Ga. 586; Trigally v. Mayor, etc., of City of Memphis, 6 Cold. (Tenn.) 382; Metcalf v. City of St. Louis, 11 Mo. 103; Heland v. City of Lowell, 3 Allen (Mass.) 407, 81 Am. Dec. 670 ; Village of St. Johnsbury v. Thompson, 59 Vt. 300, 9 Atl. 571, 59 Am. Rep. 731 ; City of Little Rock v. Town of Little Rock, 72 Ark. 195, 79 S. W. 785 ; Chicago Union Traction Co. V. City of Chicago, 199 111. 484, 65 N. E. 451, 59 L. R. A. 631; Town of Ocean Springs v. Green, 77 Miss. 472, 27 South. 743 ; Sluder V. St. Louis Transit Co., 189 Mo. 107, 88 S. W. 648, 5 L. R. A. (N. S.) 186. 166 PROCEEDINGS AND ORDINANCES (Ch. G the general rule stated in the black letter text prevails.'^' For example, if the law requires that the ordinance shall be read at three different meetings before final passage, such provi- sion is mandatory and essential to a valid ordinance ; *" but the reafling may be at a special or adjourned meeting; *^ and in one case it was held that the statute was complied with by a reading at one meeting by title merely,^ and in another it was ruled that a new council, on a single reading before it, may pass an ordinance twice read before its predecessor.*^ Where no mode is prescribed by law for enacting ordinances, the council may prescribe the mode by its own rules of order, or by ordinance; or, lacking either of these regulations, it may proceed in accordance with ptirliamentary law.** Form — Record^]/ eto An ordinance should have the form of legislation, but this is not essential to its validity.*" The appropriate form of an 7 9 Savage v. City of Tacoma, 61 "Wash. 1, 112 Pac. 78. But com- pare City of Bluefield v. Johnson, 68 W. Va. 303,, 69 S. B. 848. 8 SWINDELL V. STATE ex rel. MAXET, 143 Ind. 153, 42 N. E. 528, 35 L. R. A. 50, Cooley, Cas. Mun. Corp. 122 ; Thatcher v. City of Toledo, 19 Ohio Cir. Ct. R. 311, 10 O. C. D. 272. But see I.andes v. State ex rel. Matson, 160 Ind. 479, 67 N. E. 189; Aurora Water Co. V. City of Aurora, 129 Mo. 540, 31 S. W. 946. A city ordinance, when put on its passage, should be the same in substance as that introduced at the previous meeting. South Jer- sey Telegraph Co. v. City of Woodbury, 73 N. J. Law, 276, 63 Atl. 4. 81 Outcomp V. Utt, 60 Iowa, 156, 4 N. W. 214; Sehofield v. Village of Tampico, 98 111. App. 324. But see Flood v. Atlantic City, 63 N. J. Law, 530, 42 Atl. 829. 8 2 Anderson v. Camden, 58 N. J. Law, 515, 33 Atl. 846. Compare Bill Posting Sign Co. v. Atlantic City, 71 N. J. Law, 72, 58 Atl. 342. 8 3 McGraw v. Whitson, 69 Iowa, 348, 28 N. W. 632. 8 4 SWINDELL V. STATE ex rel. MAXEY, 143 Ind. 153, 42 N. E. 528, 35 L. R. A. 50, Cooley, Cas. Mun. Corp. 122 ; Swift v. People ex rel. Ferris Wheel Co., 162 111. 534, 44 N. E. 528, 33 L. R. A. 470 ; Butler V. City of Passaic, 44 N. J. Law, 171 ; First Municipality v. Cutting, 4 La. Ann. 336 ; Robinson v. Mayor, etc., of Town of Frank- lin, 1 Humph. (Tenn.) 156, 34 Am. Dec. 625; McGavock v. City oi" Omaha, 40 Neb. 64, 58 N. W. 543. 8 5Rumsey Mfg. Co. v. Inhabitants of Town of Schell City, 21 Mp. App. 175 ; City of Rockville v. Merchant, 60 Mo. App. 365 ; Town of § 50) ORDINANCES — MODE OF ENACTMENT 1^7 ordinance is, "Be it ordained by the common council," etc;; but acts of the common council are interpreted by the courts in accordance with their manifest purpose and subject-matter; wherefore, it has been held that a formal resolution was an ordinance, when it prescribed a perrhanent rule of action and was passed in the mode required for ordinances.^* And so of any other action taken by the corhmon council with due deliberation, , expressing its legislative intention and authority-. The ordinance mtist be duly recorded,*' and, if executive ap- proval is required, must receive the formal indorsement df the mayor.^* If, however, formal approval be not required, and the mayor is given the veto power, his assent will be presumed Lisbon v. Clark, 18 N. H. 234. An ordaining or enacting clause is not essential to the validity of an ordinance, even though prescribed by the municipal charter. Chicago & E. I. R. Co. v. Hines, 82 111,; App. 488. Contra, Galveston H. & S. A. Ry. Co. v. Harris (Tex. Civ. App.) 36 S. W. 776. 86 City of Rockville v. Merchant, 60 Mo. App. 365; Town of Lis- bon V. Clark, 18 N. H. 234 ; People v. Murray, 57 Mich. 396, 24 N, W. 118; City of Delphi v. Evans, 36 Ind. 90, 10 Am. Rep. 12; Mer^ chants' Union Barb Wire Co. v. Chicago, B. & Q. Ry. Co., 70 Iowa, 105, 28 N. W. 494 ; Sower v. City of Philadelphia, 35 Pa. 231 ; San Francisco Gas Co. v. City of San Francisco, 6 Cal. 190 ; City of Green Bay v. Brauns, 50 Wis. 204, 6 N. W. 503 ; Gleason v. Barnett, 61 S. W. 20, 22 Ky. Law Rep. 1660. 8 7 Provisions of the charter or statute requiring ordinances to be recorded are construed as directory merely, and recording i^ not regarded as essential to the validity of the ordinance, unless such intention is clearly expressed. Stevenson v. Bay City, 26 Mich. 44; Trustees of Erie Academy v. City of Erie, 31 Pa. 515 ; Shea v. City of Muncie, 148 Ind. 14, 46 N. E. 138 ; Allen v. City of Davenport, 107 Iowa, 90, 77 N. W. 532. 8 8 City of Central v. Sears, 2 Colo. 588 ; Ladd v. City of East Port- land, 18 Or. 87, 22 Pac. 533 ; Kepner v. Commonwealth ex rel. City of Harrisburg, 40 Pa. 124 ; Reilly v. Racine, 51 Wis. 526, 8 N. W. 417 ; New York & N. E. R. Co. v. City of Waterbury, 55 Conn. 19, 10 Atl, 162; Heins v. Lincoln, 102 Iowa, 69, 71 N. W. 189; Whitney v. City of Port Huron, 88 Mich. 268, 50 N. W. 316, 26 Am. St. Rep. 291 ; Ash- ley V. Mayor, etc., of City of Newark, 25 N. J. Law, 399 ; Padavano V. Fagan, 66 N. J. Law, 167, 48 Atl. 998; Landes v. State ex rel. Matson, 160 Ind. 479, 67 N. E. 189; City of Erie v. Bier, 10 Pa. Super. Ct. 381. 108 PROCEEDINGS AND ORDINANCES (Ch. 6 from failure to veto within the time prescribed." When an ordinance is vetoed, the council may reconsider it, but only once, and within a prescribed limit of time.*" An ordinance passed over the veto requires no further act of the mayor.*^ Publication It is the general, and ought toibe the universal, law that no ordinance shall take effect until duly published; but in some states the Draconian precedent seems to be recognized, and it has been held that provisions for publication were directory only.'^ The general doctrine, however, is that such provisions are mandatory, and in favor of personal right and liberty they are strictly construed; so that actual notice has been held not 89 Saleno v. City of Neosho, 127 Mo. 627, 30 S. W. 190, 27 L. R. A. 769, 48 Am. St. Rep. 653 ; State v. Henderson, 38 Ohio St. 644 ; Mar- tindale v. Palmer, 52' Ind. 411. 80 Peck V. City of Rochester (Sup.) 3 N. Y. Supp. 873; Sank v. City of Philadelphia, 8 Phila. (Pa.) 118; People ex rel. United States Standard Voting Mach. Co. v. City of Geneva, 45 Misc. Rep. 237, 92 N. Y. Supp. 91, affirmed 98 App. Div. 383, 90 N. Y. Supp. 275. 91 Ashton V. City of Rochester, 60 Hun, 372, 14 N. Y. Supp. 855. But where a resolution was vetoed by the mayor and returned to the council, who altered it to meet one of the objections set out in the veto, and again passed it, the resolution as last passed could not become effective until again suhmitted to the mayor for his ap- proval, since by the alteration it became a new resolution. Pada- vano v. Fagan, 66 N. J. Law, 167, 48 Atl. 998. 02 Schwartz v. City of Oshkosh, 55 Wis. 490, 13 N. W. 450 ; Car- penter V. Yeadon Borough, 208 Pa. 396, 57 Atl. 837; Herman v. City of Oconto, 100 Wis. 391, 76 N. W. 364; Barnett v. Town of Newark, 28 111. 62 ; City of Napa v. Easterby, 61 Cal. 509 ; Id., 76 Cal. 222, 18 Pac. 253 ; Meyer v. Fromm, 108 Ind. .208, 9 N. E. 84; Wain's Heirs v. City of Philadelphia, to Use of Armstrong, 99 Pa. 330 ; Higley v. Bunce, 10 Conn. 567. But see Commonwealth v. Mc- CafEerty, 145 Mass. 384, 14 N. E. 451; City of Sacramento v. Dill- man, 102 Cal. 107, 36 Pac. 385 ; Elmendorf v. Mayor, etc., of City of New York, 25 Wend. (N. Y.) 693; Reed v. City of Louisville, 61 S. W. 11, 22 Ky. Law Rep. 1636; City of Central v. Sears, 2 Colo. 588; Rutgers College Athletic Ass'n v. City of New Brunswick, 55 N. 3. Law, 279, 26 Atl. 87 ; Rumsey Mfg. Co. v. Inhabitants of Town of Schell City, 21 Mo. App. 175; Town of Stillwater v. Moor (Okl.) 33 Pac. 1024. § 50) OEDINANCES — MODE OF ENACTMENT 169 sufficient without publication."^ The pubhcation must be, of course, in the manner and to the extent prescribed in the stat- ute.** If not particularly prescribed, then it may be by print- ing in newspapers, according to the American usage, or by posting in public places, according to the practice of Conti- nental Europe. But the publication must be reasonably suffi- cient to convey information to the inhabitants of the corpora- tion.*'' Amendment and Repeal An ordinance cannot b'e amended, by a mere resolution,** but only by another ordinance, enacted with the same formal- ities as the original ordinance.*' An ordinance once duly enacted remains in force until re- »8 National Bank of Commerce v. Town of Grenada (C. C.) 44 Fed. 262 ; O'Hara v. Town of Park Eiver, 1 N. D. 279, 47 N. W. 380. An ordinance requiring a municipal ordinance to be publisbed for a stated time, with a notice of the time of its consideration, is manda- tory. Herman v. City of Oconto, 100 Wis. 391, 76 N. W. 364. 9* Meyer v. Fromm, 108 Ind. 208, 9 N. E. 84; City of Napa v. Easterby, 61 Cal. 509; Id., 76 Cal. 222, 18 Pac. 253; Schwartz v. City of Oshkosh, 55 Wis. 490, 13 N. W. 450 ; Ex parte Christensen,. 85 Cal. 208, 24, Pac. 747; Wain's Heirs v. City of Philadelphia, to Use of Armstrong, 99 Pa. 330 ; City of Chicago v. McCoy, 136 111. 344,. 26 N. E. 363, H Li R. A. 413; De Loge v. New York Cent. & H. R. R. Co., 157 N. Y. 688, 51 N. E. 1090. Publication of a city ordinance in an extra edition of a daily newspaper, and the distribution of 50 to 100 copies of such editioa by parties interested in the ordinance, is not a publication In a newspaper of general circulation. State ex rel. Bump v. Omaha & C. B. Ry. & Bridge Co., 113 Iowa, 30, 84 N. W. 983, 52 L. R. A. 315, 86 Am. St. Rep. 357. 85 Kimble v. City of Peoria, 140 111. 157, 29 N. E. 723. As to pub- lication on Sunday, see Mayor, etc., of Knoxville v. Knoxville Water Co., 107 Tenn. 647, 64 S. W. 1075, 61 L. R. A. 888. 96 Hope V. City of Alton, 116 111. App. 116, affirmed 214 111. 102, 73 M. E. 406. 07 Chicago, I. & L. Ry. Co. 7. Town of Salem, 166 Ind. 71, 703, 7& N. E. 631, 634. 170 PEOCEEDINGS AND ORDINANCES (Ch. 6 pealed." The same vote is required to repeal as to enact.t? Repeal may be effected by implication as well as by expres- sion.^ But here the same rules apply as to state statutes.- The Legislature may also repeal a municipal ordinance by ex- press legislation or by necessary implication, the rule being that if the subsequent state statute, or a subsequent ordinance, is necessarily repugnant to the ordinance, and the intention to repeal is obvious, then the ordinance is thereby repealed.* ESSENTIALS OF VALID ORDINANCE 51. An ordinance may be void not only for vsrant of cor- porate power to enact it, or for the failure to ob- serve the prescribed procedure essential to its va- lidity, but also because it is contrary to certain well-established doctrines of the law in regard to such regulations, chief of which are that a munici- pal ordinance, in order to be valid — (a) Must not contravene constitution or statute. (b) Must not be oppressive. 98 A valid city ordinance when passed never becomes obsolete, but remains in force until repealed by the corporation. Shroder v. City of Lancaster (Pa. 1875) 6 Lane. Bar, 201 ; Wilson v. Spencer, 22 Va. 76, 10 Am. Dec. 491. 99 1 Dill. Mun. Corp. § 282 ; Seattle v. Barto, 31 Wash. 141, 71 Pac. 735 ; Robinson v. City of Baltimore, 93 Md. 208, 49 Atl. 4. Au ordinance cannot be repealed, amended, or suspended by a resolu- tion. People V. Latham, 203 111. 9, 67 N. B. 403 ; City of Joliet v. Petty, 96 111. App. 450. 1 Staples V. Bridgeport, 75 Conn. 509, 54 Atl. 194 ; City of Joliet V. Petty, supra; Schmidt v. Lewis, 63 N. J. Eq. 565, 52 Atl. 707; Budd V. Camden Horse By. Co., 63 N. J. Eq. S04, 52 AU. 1130; City of Grand Rapids v. Norman, 110 Mich. 544, 68 N. W. 269 ; Knight V. Town of West Union, 45 W. Va. 195, 32 S. E. 163 ; Smyrk v. Sharp, 82 Md. 97, 35 Atl. 411 ; Dutton v. City of Aurora, 114 111. 138, 28 N. E. 461; Van der Leith v. State, 60 N. J. Law, 46, 37 Atl. 436. .2 Booth V. Town of Carthage, 67 111. 102; City of Providence v. Union R. Co., 12 R. I. 473. 3 Southport v. Ogden, 23 Conn. 128; Town of Marietta v. Fearing, 4 Ohio, 427; Horr & B. Mun. Ord. §§ 60, 61. § 51) ESSENTIALS OF VALID ORDINANCE 171 (c) Must be impartial, fair, and general. (d) Must not prohibit, but may regulate, trade. (e) Must not contravene common right. (f) Must be consistent with public policy. (g) Must not be unreasonable. The power of municipal legislation must, of course, be con- ferred by the state, and is usually found in the municipal char- ter. This has already received consideration, and it scarcely need be said that the municipality cannot extend or enlarge its charter powers by its own ordinances.* These actsrrtust be within the qx^ress or imglied jDowers of the corporation,, and they must be enacted according to the legislative mandate, otherwise they will be void.° But the mere fact that there is some irregularity in the enactment of the ordinance will not render it void, if it is otherwise unobjectionable.® # Motives of Members The motives of councilmen in passing an ordinance have been held ijot to be the subject of judicial inquiry; ' but it has 4 PEOPLE V. ARMSTRONG, 73 Mich. 288, 41 N. W. 27a,. 2 L. R. A. 721, 16 Am. St. Rep. 578, Cooley, Gas. Mun'. Corp. 141 ; Miller, v. Burch, 32 Tex. 208, 5 Am. Rep. 242; State ex rel. Kercheval v. Mayor, etc., of City of Nashville, 15 Lea (Tenn.) 697, 54 Am. Rep. 427; Thompson v. Carroll, 22 How. (U. S.) 422, 16 L. Ed. 387;. Com- monwealth V. Roy, 140 Mass. 432, 4 N. E. 814 ; Mays v. City of Cin- cinnati, 1 Ohio St. 268; Garden City v. Abbott, 34 Kan. 283, 8 Pac. 473.: A charter is the organic law of the municipality, and an ordinance in conflict therewith is void. Kemp v. Monett, 95 Mo. App. 452, 69 S. W. 31. 5 Rau V. City of Little Rock, 34 Ark. 303 ; Miller v. Burch, 32 Tex. 208, 5 Am. Rep. 242 ; Mayor, etc., of City of Savannah y. Hus- sey, 21 Ga. 80, 68 Am. Dec. 452; State v. Kantler, 33 Minn. 69, 21 N. W. 856; Pike v. Megoun, 44 Mo. 491; Anne Arundel County Com'rs V. Duckett, 20 Md. 468, 83 Am. Dec. 557 ; Borough of Free^ port V. Marks, 59 Pa. 257; Paine v. City of Boston, 124 Mass., 486; Jones V. Loving, 55 Miss. 109, 30 Am. Rep. 508 ; Baker v. State, 27 Ind. 485; Villavaso v. Barthet, 39 La. Ann. 247, 1 South. 599. 6 Boehme v. City of Monroe, 106 Mich. 401, 64 N. W. 204 ; Clark v. City of Elizabeth, 61 N. J. Law, 565, 40 Atl. 616. 737 ; In re Broad St., 9 Kulp (Pa.) 37. 7 Buell V.' Ball, 20 Iowa, 282 ; Lilly v. City ',of . Indianapolis, 149 172 PROCEEDINGS AND ORDINANCES (Ch. 6 also been held that an ordinance procured by fraud or bribery is invalid/ and Judge Dillon protests that it would be dis- astrous to apply to its full extent to municipal ordinances the rule as to general legislation forbidding inquiry into the mo- tives of members of Congress and legislators, "for," says he, "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." ° Special Authority When the Legislature has granted authority to the corpora- tion to pass a particular by-law, and the by-law is in pursu- ance of and within the limits of this authority, it is the same as though the Legislature had enacted the by-law, and the only objection tenable is such as would lie against the legislative act, to wit, its unconstitutionahty. But many by-laws are en- acted vrnder a general grant of power vesting large discretion in the municipal council, and sometimes by-laws are passed under the implied inherent power of a municipality to make by-laws. ^^ Ordinances passed under such conditions may be challenged as illegal, unless they conform to certain fixed rules of law, namely: (1) They must not contravene the Constitution or Ind. 648, 49 N. E. 887; People v. Gardner, 143 Mich. 104, 106 N. W. 541; Wood v. City of Seattle, 23 Wash. 1, 62 Pac. 135, 52 L. R. A. 369 ; Wright v. Defrees, 8 Ind. 298 ; Borough of Freeport v, Marks, 59 Pa. 253; Cooley, Const. Lim. pp. 186, 208; Villavaso v. Barthet, 39 La. Ann. 247, 1 South. 599 ; People ex rel. Morrison v. Cregier, 138 111. 401, 28 N. E. 812. But see State ex rel. Attorney General v. Cincinnati Gaslight & Coke Co., 18 Ohio St. 262. 8 State ex rel. Attorney General v. Cincinnati Gaslight & Coke Co., 18 Ohio St 262 ; Glasgow v. City of St. Louis, 107 Mo. 198, 17 S. W. 743 ; Davis v. Mayor of City of New York, 1 Duer (N. Y.) 451 ; In re Frederick Street, 12 Pa. Co. Ct. R. 577. 9 1 Dill. Mun. Corp. § 311. 10 City of Mt Pleasant v. Breeze, 11 Iowa, 399; State v. Webber, 107 N. O. 962, 12 S. E. 598, 22 Am. St. Rep. 920 ; Collins v. Hatch, 18 Ohio, 523, 51 Am. Dec. 465 ; Clark v. City of South Bend, 85 Ind. 276, 44 Am. Rep. 13 ; McPherson v. Village of Chebanse, 114 111. 46, 28 N. E. 454, 55 Am. Rep. 857. § 51) ESSENTIALS OF VALID ORDINANCE 173 statutes ; (2) they must not be oppressive ; (3) they must be impartial, fair, and general; (4) they may regulate, but must not prohibit, trade; (5) they must not contravene common right ; (6) they must be consistent with public policy ; (7) they must be reasonable. Contrary to Constitution or Statute It would seem to be fundamental that a city ordinance which contravenes provisions of the federal or state Constitu- tions intended to secure the rights of person or property is void. As illustrations of this principle, ordinances have been "declared invalid which empower purchasers of land at a tax sale to call upon the police to put them into possession ; ^^ which imposed a license upon towboats engaged in interstate commerce; ^^ which required a cotton dealer to report to they police the names of all sellers of loose cotton, with the amount purchased by him ; " which discriminate between resident and nonresident traders ; ^* which donated the bodies of dead ani- mals to certain third parties.^" The foregoing ordinances were all declared repugnant to constitutional principles, and therefore void. So, likewise, an ordinance contravening any public statute would be void, unless it were specially au- thorized by statute so plain and unmistakable as to amount to a legislative repeal of the former statute thus contravened.^' 11 Calhoun v. Fletcher,' 63 Ala. 574. It deprives a citizen of proper- ty without "due process of law." 12 Moran v. New Orleans, 112 U. S. 69, 5 Sup. Ct. 38, 28 L. Ed. 653 ; Ex parte Holmquist (Cal.) 27 Pac. 1099. It contravenes federal au- thority to "regulate commerce among -the states." 13 Long V. Taxing Dist. of Shelby County, 7 Lea (Tenn.) 134, 40 Am. Rep. 55. An unwarranted infringement on personal liberty. 14 Thompson v. Ocean Grove Camp Meeting Ass'n, 55 N. J. Law, 507, 26 Atl. 798; City of Indianapolis v. Bieler, 138 Ind. 30, 36 N. E. 857. Denies to citizens of the United States the equal protection of the law. 15 Town of Greensborp v. Ehrenreich, 80 Ala. 579, 2 South. 725, 60 Am. Eep. 130; River Rendering Co. v. Behr, 77 Mo. 91, 46 Am. Rep. 6. No "due process of law," nor "just compensation" for private property taken. , 18 State v. Clarke, 54 Mo. 17, 14 Am. Rep. 471; Mark v. State, 97 174 PROCEEDINGS AND ORDINANCES 'Ch. 6 Aliist Not be Oppressive As the powers of a municipality are derived from legisla- tive acts controlled by constitutional safeguards, an ordinance which operates oppressively and tyranically on any individual or class of individuals cannot be sustained.^' The courts have not hesitated under this A^^olesome ^pctjiijf to invalidate man- datory ordinances which interfere with the ordinary liberty of the citizen, as, for example, an ordinance ordering the arrest, imprisonment, and punishment of a free negro found put of doors after 10 o'clock at night; ^* one punishing any person knowingly associating Vv^ith persons having the reputation of being thieves and prostitutes;^"* so, one committing the right to erect and maintain a steam engine and boiler to the un- bridled discretion of the mayor; -° also one denying the use of water from the city waterworks to any one who owed, or whose tenant owed, a bill for water supplied in a previous year, or to a different house; ^^ so, one committing to an ar- bitrary official discretion to allow or prohibit street parades ; ^ also one forbidding a licensed retailer of liquors to sell be- 'n. T. 572 ; In re Snell, 58 Vt. 207, 1 Atl. 566 ; Cross v. Mayor, etc., o. Town of Morristown, 33 N. J. Law, 57. 17 City of San Antonio v. Salvation Army (Tex. Civ. App.) 127 S. W. 860 ; City of Salem ex rel. Roney v. Young, 142 Mo. App. 160, 125 S. W. 857 ; Toney v. City of Macon, 119 6a. 83, 46 S. E. SO ; CITY OF CHICAGO V. GUNNING SYSTEM, 114 111. App. 377, affirmed 214 lU. 628, 73 N. E. 1035, 70 L. R. A. 23Q,-Cooley, Cas. Mun. Corp. 129; Laviosa v. Chicago, St. Louis & N. O. R. Co., McGloln (La.) 299; City of Baltimore v. Badecke, 49 Md. 217, 33 Am. Rep. 239; Skinker v. Heman, 64 Mo. App. 441. 18 Mayor, etc., of City of Memphis v. Winfield, 8 Humph. (Tenn.) 707. 19 City of St. Louis v. Fitz, 53 Mo. 582. 20 Mayor, etc., of Baltimore v. Radecke, 49 Md. 217, 33 Am. Rep. 239. -'1 Dayton v. Quigley, 29 N. J. Eq. 77. 2 a STATE ex rel. GARRABAD v. BERING, 84 Wis. 585, 54 N. W. 1104, 19 L. R. A. 858, 36 Am. St. Rep. 948, Cooley, Cas. Mun. Corp. 135'; In re Frazee, 63 Mich. 396, 30 N. W. 72, 6 Am. St. Rep. 311. But see Commonwealth v. Davis, 162 Mass. 510, 39 N. E. 113, 26 L. R. A. 712, 44 Am. St. Rep. 389; Davis v. Massachusetts, 167 U. S. 43, 17 Sup. Ct. 731, 42 L. Ed. 71. § 51) ESSENTIALS OF VALID ORDINANCE ITS tween the hours of 6 p. m. and 6 a. m.;^' and likewise' onei forbidding such sale whenever any denomination, of Christian^ people are holding divine services.^* Must be Impartial, Fair, and General That it may be valid, an ordinance must be fair in its terms, impartial in operation, and general in its application; that is, applying alike to all persons under practically similar condi- tions and circumstances.^ ° A regulation requiring certain water consumers to put in expensive meters under penalty of cutting off the water supply was held void for unwarranted discrimination ; "*' so one requiring a certain individual named to do certain acts in respect to a building, and imposing a pen- alty for noncompliance, was held void; ^' as also one requir- ing particular individuals by name to construct local improve- ments in front of their lots; ^* so also one forbidding the re- pairing, altering, or rebuilding any frame building within fire limits, the cost of which should exceed three hundred dol- lars;^" also one prohibiting dairies within certain designated limits without the consent of the city council.'" So, too, an ordinance making the obtaining of money by willful misrep- resentation a crime only when done by one conducting an em- 23 Ward V. Mayor, etc., of Town of GreenevlUe, 8 Baxt. (Tenn.) 228, 35 Am. Rep. 700. 24Gilham v. Wells, 64 Ga. 192. See, also, State v. Strauss, 49 Md. 288. 2 5 City of Spokane v. Macho, 51 Wash. 322, 98 Pac. 755, 21 L. R. A. (N. S.) 263; Hardee v. Brown, 56 Fla. 377, 47 South. 834; Sioux City V. Simmons Hardware Co., 151 Iowa, 334, 129 N. W. 978, 131 N. W. 17 ; Ex parte Wilcox, 14 Cal. App. 164, 111 Pac. 374 ; Board of Council of Harrodsburg v. Renfro (Ky.) 58 S. W. 795, 51 L. R. A. 897 ; State ex rel. Bump v. Omaha & C. B. Ry. &' Bridge Co., 113 Iowa, 30, 84 N. W. 983, 52 L. R. A. 315, 86 Am. St. Rep. 357. 2 Red Star Line S. S. Co. v. Mayor, etc., of Jersey City, 45 N. J. Law, 246. 2 7 First Municipality of New Orleans v. Blineau, 3 La. Ann. 68S. 28 Whyte V. Mayor, etc., of Town of Nashville, 2 Swan (Tenn.) 364. 2 9 First Nat. Bank of Mt. Vernon v. Sarlls, 129 Ind. 201, 2'8 N. E. 434. 13 L. R. A. 481, 28 Am. St. Rep. 185. 3 State V. Mahner, 43 La. Ann. 496, 9 South. 480. 176 PROCEEDINGS AND ORDINANCES (Ch. 6 ployment office is invalid." On the other hand, an ordinance requiring bicycles to carry a light after dark is not objection- able because it does not apply to riders or drivers of other silently running vehicles.^ ^ Must Not Prohibit, but May Regulate, Trade Under the rule that an ordinance may regulate, but must not prohibit, trade, an ordinance has been declared void which fixed one rate of license for selling goods which are within or in transit to the city, and another rate for goods which are not within or in transit to the city ; ^^ so also one requiring mu- nicipal licenses from nonresidents driving interurban carriages or omnibuses into the city.^* And it has been held in New Jersey that whenever a by-law seeks to alter a well-settled and fundamental principle of the common law, or to establish a rule interfering with the rights of individuals or the public, the municipality must show its authority under plain and specific legislative enactment.|J It has also been held that an ordi- nance, which prohibits any person bringing secondhand cloth- ing into a city or town, or exposing it for sale therein without proof of its noninfection, is an unwarranted interference with trade.*" Must Not Contravene Common Right In some cases ordinances have been declared invalid because they contravene common rights ; that is, such rights as are understood to be common to all. As illustrating this prin- ciple, ordinances to the following efifect have been declared in- valid: One imposing a hcense tax for selling lemonade and 81 City of Spokane v. Macbo, 51 Wash. 322, 98 Pac. 755, 21 L. E. A. (N. S.) 263. 32 City of Des Moines v. Keller, 116 Iowa, 648, 88 N. W. 827, 57 L. R. A. 243, 93 Am. St. Rep. 268. 33 Ex parte Frank, 52 Cal. 606, 28 Am. Rep. 642. 8*iDommonwealtli v. Stodder, 2 Cush. (Mass.) 562, 48 Am. Dec. 679. soa'aj'lor V. Griswold, 14 N. J. Law, 222, 27 Am. Dec. 33. ■18 Kosciusko V. Slomberg, 58 Miss. 469, 9 Soutti. 297, 12 L. E. A. 528, 24 Am. St. Rep. 281. § 51) ESSENTIALS OF VALID ORDINANCE 177 cake at a temporary stand on the sidewalk ; ^' one requiring a license fee of three hundred dollars from an auctioneer, two hundred dollars from butchers, and twenty dollars from a peddler; ^^ one forbidding hotel runners from going within twenty feet of a railroad train, though permitted to do so by the railroad company;'" one forbidding the renting of pri- vate property to lewd women ; " and one which required stores, except drug stores, for the sale of drugs and medicines, to be closed at 7:30 in the evening, except on Saturdays.*^ Must be Consistent with Public Policy The general principle already stated, that city ordinances must not contravene the Constitution and statutes, of the state, must be construed as including also the further principle that such ordinances must not be inconsistent with the public pol- icy of the state as declared in the statutes. Thus, where a statute prohibited incorporated towns from subjecting the stray animals of nonresidents to corporate ordinances, a by- law' visiting a penalty on the nonresident owner was held void ; *^ and also, in the same state, the ordinance of a mu- nicipal corporation with charter power to pass all by-laws deemed necessary for health, cleanliness, etc., and with power to abate nuisances, which restrained cattle from running at large, was held void as being in contravention of the general 3T Barling v. West, 29 Wis. 307, 9 Am. Rep. 576. 38 City of St. Paul t. Colter, 12 Minn. 41 (Gil. 16), 90 Am. Dec. 278; City of Mankato v. Fowler, 32 Minn. 364, 20 N. W. 361; Town of State Center v. Barenstein, 66 Iowa, 249, 23 N. W. 652. 3" Napman v. People, 19 Mich. 352; City of Chillicotlie t. Brown, 38 Mo. App. 609 ; Haynes v. City of Cape May, 52 N. J. Law, l&O, 19 Atl. 176 ; State v. Robinson, 42 Minn. 107, 43 N. W. 833, 6 L. R. A. 339. 656; Mulligan v. Smith, 59 Cal. 206 ; Jones v. South Omaha, 3- Neb. (Unof.) 551, 94 N. W. 957. But compare Wolfe v. City of Moorehead, 98 Minn. 113, 107 N. W. 728 ; Dennison v. Kansas City, 95 Mo. 416, 8 S. W. 429. In Orr v. Omaha, 2 Neb. (Unof.) 771, 90 N. W. 301, it was held that where the act incorporating metropolitan cities author- ized any such city to pave any street or alley within its limits, ei- ther with or without a petition of the property owners representing § 88) PRELIMINARY PROCEEDINGS 281 be duly published or posted, warning those interested of the nature and extent of the proposed improvement, and inviting them to show cause before the common council, either orally •or in writing, >why it should not be made.'* This notice may take the form of a preliminary resolution declaring the necessity for the. proposed improvement.' ' A public hearing, at which those affected by the proposed im- provement may be heard and remonstrances considered, may "be required.^' These preliminary requirements vary in the different states, being determined wholly by the local statutes. But, whatever a majority of .the feet frontage, the city had no authority to make the cost of paving a charge against the abutting property without a petition of the owners of such property. But in the same case it was held that the city could, under the same provision, when it had ordered a street paved, curb and gutter the same, and make the ex- pense thereof a legal charge upon the abutting real estate, though there was no petition for such improvement. See New Iberia v. FonteUeu, 108 La. 460, 32 South. 369; Taylor v. Patton, 160 Ind. 4, 66 N. "E. 91; Board of Improvement Dist. No. 60 v. Cotter, 71 Ark. 556, 76 S. W. 552. And under a statute authorizing street paving to be done "when the person owning real estate which has at least one-third fronting on the street, the improvement of which is desir- ed, shall request the commissioners to make such improvement," the city cannot, as an owner of property fronting on such street, join in signing such request, in order to make the same come up to the legal requirement. City of Atlanta v. Smith, 99 Ga. 462, 27 S. E. 696. 3* Sears v. Atlantic City, 72 N. J. Law, 435, 60 Atl. 1093, affirmed 73 N. J. Law, 710, 64 Atl. 1062, 118 Am. St. Rep. 724; State v. Pills- bury, 82 Minn. 359, 85 N. W. 175; City of Chicago v. Walsh, 203 111. 318, 67 N. E. 774; Peck v. Bridgeport, 75 Conn. 417, 53 Atl. 893; GRAY V. BURR, 138 Cal. 109, 70 Pac. 1068; Cooley, Cas. Mun. Corp. 214; Bates v. Twist, 138 Cal. 52, 70 Pac. 1023; Bank of Columbia v. Portland, 41 Or. 1, 67 Pac. 1112; Brown v. Central Bermudez Co., 162 Ind. 452, 69 N. E. 150 ; Adams v. Roanoke, 102 Va. 53, 45 S. E. 881. Compare Lewis v. Albertson, 23 Ind. App. 147, 53 N. E. 1071; City of Denver v. Campbell, 33 Colo. 162, 80 Pac. 142. 3 5 City of Nevada, to Use of GilfiUan, v. Eddy, 123 Mo. 546, 27 S. W. 471; Hughes v. Parker, 148 Ind. 692, 48 N. E. 243. 36 Wasburn v. City of Chicago, 198 111. 506, 64 N. E. 1064; GRAY T. BURR, 138 Cal. 109, 70 Pac. 1068, Cooley, Cas. Mun. Corp. 214. But see Parsons v. City of Grand Rapids, 141 Mich. 467, 104 N. W. 730. 282 IMPROVEMENTS , (Gh. 9 preliminary steps must be taken, it is the almost, if not wholly, universal rule that the final determination of the council to make the improvement must be embodied in an ordinance or resolution ordering the improvement, containing a description thereof and provisions for defraying the expense of doing the work.^' The obvious purpose of all these requirements is to gain the assent of those interested. Some of them absolutely prevent taxation without popular consent, others without consent of those to be taxed, and others, in analogy to judicial proceed- ing, recognize the right of the parties interested to be heard in their own behalf. To some degree the right of home- rule is recognized in all of them. In harmony with the legislative intention are the decisions of the courts to the effect that these, statutory provisions are conditions precedent to the exercise of the taxing power delegated to the municipality for purposes of improvement, and that the omission or failure to observe and comply with them renders invalid any effort of the mu- nicipality to make the improvement. These provisions are held to be mandatory, and compliance with them is , absolutely essential to the exercise of the power. ^* Strict Construction The rule of strict construction is also applied to statutes giving this power of special or extraordinary taxation,^" and it has been accordingly held that a guardian of children can- 37 City of Carlyle v. County of Clinton, 140 111. 512, 30 N. E. 7S2; Barber Asphalt Pav. Co. v. Edgerton, 125 Ind. 455, 25 N. E. 436; Ware v. Borough of Rutherford, 55 N. J. Law, 450, 26 Atl. 933; City of Sterling v. Gait, 117 111. 11, 7 N. E. 471; Hughes v. City of Mo- mence, 163 111. 535, 45 N. E. 300 ; Zalesky v. City of Cedar Rapids, 118 Iowa, 714, 92 N. W. 657. 38 People V. Smith, 201 111. 454, 66 N. E. 298; Morse v. Omaha, 67 Neb. 426, 93 N. W. 734; Blanchard v. Bissell, 11 Ohio St. 96; Missouri Pac. Ry. Co. v. City of Wyandotte, 44 Kan. 32, 23 Pac. 950; White V. City of Saginaw, 67 Mich. 33, 34 N. W. 255; McLauren y. City of Grand Forks, ^ Dak. 397, 43 N. W. 710. 3 9 Merritt v. Village of Portchester, 71 N. Y. 309, 27 Am. Rep. 477; Iloyt V. City of East Saginaw, 19 Jlich. 39, 2 Am. Rep. 76. § 88) PEELIMINAKY PROCEEDINGS 283 not be counted to make a majority of property holders sign- ing a petition; *" nor one of two joint tenants; *^ nor a life tenant.*^ It has also been held that the names of property holders upon an original petition to the council, which had been laid upon the table, cannot be added to those subscribed to a subsequent petition for the same improvement in order to make a majority.*^ Also, where the initiative is by the mu- nicipality, and notice is required, it must be given in writing; ** and where publication is permitted the improvement must be specifically described; *° and want of notice or insufficient no- tice invalidates the ordinance for the improvement.*" Discretion of Council Where the council is vested with power to order and make the improvement, either upon petition or notice, and these formal requirements have been complied with, the power of the council is discretionary and quasi judicial,*' and its decision «o Auditor General v. Fisher, 84 Mich. 128, 47 N. W. 574. *i Auditor General v. Fisher, supra. But where the decision for the improvement is based upon the petition of the owners of a cer- taiu percentage in value of the property to be affected, and one of two partners signs the petition for such improvement, and the other does not, one-half of the value of the partnership property should be added in finding the total value of the property of the petitioners. Earl v. Board of Improvement of City of Morrilton, 70 Ark. 211, 07 S. W. 312. 12 Mayor, etc., of City of Baltimore v. Boyd, 64 Md. 10, 20 Atl. 1028; Ahern v. Board of Improvement Dist. No. 3, 69 Ark. 68, 61 S. W. 575. Compare Allen v. City of Portland, 35 Or. 420, 58 Pac. 509. *3 Auditor General v. Fisher, supra. i* City of Cincinnati v. Sherike, 47 Ohio St. 217, 25 N. B. 169. If the statute provides for publication of the notice, personal service thereof is not sufficient. Zalesky v. City of Cedar Rapids, 118 Iowa, 714, 92 N. W. 657. isjenney v. City of Des Moines, 103 Iowa, 347, 72 -N. W. 550; Polk V. McCartney, 104 Iowa, 567, 73 N. W. 1067 ; Mason v. City ot Sioux Falls, 2 S. D. 640, 51 N. W. 770, 39 Am. St. Rep. 802. 46 State V. Town of West Hoboken, 53 N. J. Law, 64, 20 Atl. 737. 4 7 City of Elkhart v. Wick wire, 121 Ind. 331, 22 N. E. 342; Fuller V. City of Atlanta, 66 Ga. 80; Boyce v. Tuhey, 163 Ind. 202, 70 N. E. 531; Connor v. City of Marshfield, 128 Wis. 280, 107 N. W. 639. 284 IMPROVEMENTS (Ch. 9 is conclusive, in the absence of mistake or fraud.*' The dis- cretion exercised by the city council in regard to the expedien- cy and method of making improvements is not the subject of judicial review, except when an abuse of such discretion clear- ly appears ; *° and the courts will not interfere to- prevent 48 Wiggin V. Mayor, etc., of New York, 9 Paige (N. Y.) 16; Alberger y. Mayor, etc., of City of Baltimore, 64 Md. 1, 20 Atl. 988; aty of Baltimore v. Stewart, 92 Md. 535, 48 Atl. 165; Collins v. City of Keokuk, 147 Iowa, 233, 124 N. W. 601; State v. District Court of Ramsey County, 33 Minn. 164, 22 N. "W. 295 ; Id., 33 Minn. 295, 23 N. W. 222; City of Bloomington v. Chicago & A. B. Co., 134 111. 451, 26 N. E. 366; Appeal of Hougbton, 42 Cal. 35; City of Emporia v. Gilchrist, 37 Kan. 532, 15 Pac. 582; Shumate v. Heman, 181 U. S. 402, 21 Sup. Ct. 645, 45 L. Ed. 916, 922; Dyer v. Woods, 166 Ind. 44, 76 K. E. 624; Oakley v. City of Atlantic City, 63 N. J. Law, 127, 44 Ati. 651. 49 Village of Morgan Park v. Wiswall, 155 111. 262, 40 N. E. 611 ; Brown v. City of Saginaw, 107 Mich. 643, 65 N. W. 601; City of Kansas City v. Trotter, 9 Kan. App. 222, 59 Pac. 679. Regenstein v. City of Atlanta, 98 Ga. 167, 25 S. K 428 ; Leeds v. City of Richmond, 102 Ind. 372, 1 N. E. 711; Gardner v. City of Chi- cago, 224 111. 254, 79 N. E. 624; Davies v. City of Saginaw, 87 Mich. 439, 49 N. W. 667 ; City of Emporia v. Gilchrist, 37 Kan. 532, 15 Pac. 532 ; Louisville & N. B. Co. v. City of East St. Louis, 134 111, 656, 25 N. E. 962; Alberger v. Mayor, etc., of aty of Baltimore, 64 Md. 1, 20 Atl. 988. But. where the determination has been arrived at with- out the exercise of discretion, the action of the council may be the subject of juaicial review. See DIAMOND v. MANKATO, 89 Minn. 48, 93 N. W. 911, 61 L. R. A. 448, Cooley, Cas. Mun. Corp. 183 ; where a city council, by ordering the construction of a new sidewalk at the expense of the abutting property owners, determined that such side- walk was necessary, and that the abutting property was benefited thereby to the extent of a si)ecial tax. It was held that such, de- termination, unless arbitrary and unreasonable, was conclusive of the question of the necessity of the improvement, and of the benefit to be derived therefrom. See, also, Pierson v. People ex rel., 204 111. 456, 68 N. E. 383; Beck v. Holland, 29 Mont. 234, 74 Pac. 410; Burckhardt v. City of Atlanta, 103 Ga. 302, 30 S. E. 32 ; Holdom v. City of Chicago, 169 111. 109, 48 N. E. 164; McChesney v. City of Chicago, 171 111. 253, 49 N. E. 548; Allen v. Woods (Ky.) 45 S. W. 106, 41 L. R. A. 351. Where a city charter provides that paving of its' streets may be initiated upon the petition of a majority of the lot owners, but that the city council may make the improvement without any petition when public necessity requires it, the power to determine whether § 88) PKELIMINART PROCEEDINGS 285 the improvement merely because of alleged inutility or prod- igality."" So where the council is authorized, either expressly or by fair implication, to determine whether a majority of property owners have requested the improvement, their ac- tion in ordering the improvement thereon is a conclusive de- termination of that question.^^ But where this jurisdiction is not conferred upon the council, then the courts may in- quire and determine whether the majority have so petitioned.°° In general, it may be said that all those provisions of the stat- ute which look to the protection of substantial rights of the property owner, or to the intelligent exercise of discretion committed to the common council, are material requirements; and unless they are complied with, the ordinance for the im- provement is void.^' But it has often been held that the va- lidity of the ordinance is not affected by the absence of less public necessity requires the making of such improvement without a petition Is In the discretion of the council, whose decision is final, unless arbitrary or fraudulent. DIAMOND v. MANKATO, 89 Minn. 48, 93 N. W. 911, 61 L. B. A. 448, Cooley, Cas. Mun. Corp. 183 ; Akers V. Kolkmeyer, 97 Mo. App. 520, 71 S. W. 536. Whether the motives of a town council in vacating a street are proper cannot be judicially inquired into, but the end accomplished might be considered in pass- ing on its validity. Pence v. Bryant, 54 W. Va. 263, 46 S. B. 275. 6 People ex rel. Nichols v. Board of Supervisors of Queens Coun- ty, 62 Hun, 619, 16 N. Y. Supp. 705. The courts have no power to interfere to prevent the construction of a local improvement upon the ground that it is not necessary, and that its construction is an unreasonable burden upon the property sought to be assessed, unless the discretion vested in the city council has been abused to such an extent as to render the ordinance providing for the Improvement so unreasonable that it may be declared void. Walker v. Chicago, 202 111. 531, 67 N. E. 369. 81 Spaulding v. North San Francisco Homestead & R. Ass'n, 87 Cal. 40, 25 Pac. 249. 62 Kahn v. Supervisors of San Francisco, 79 Cal. 388, 21 Pac. 849 ; Id., 86 Cal. xxi, 25 Pac. 403. B3 Hoyt V. City of East Saginaw, 19 Mich. 39, 2 Am. Rep. 76; Hewes v. Eels, 40 Cal. 255; City of Terre Haute v. Lake, 43 Ind. 480; Gates V. Hancock, 45 N. H. 528; Sullivan v. City of Leadville, 11 Colo. 483, 18 Pac. 736; Hudson v. Mayor, etc., of City of Marietta, 64 Ga. 286. 286 IMPROVEMENTS (Ch. 9 important elements, such as particulai" specification of the work to be done, the materials to be used,^* the width of the street,^'^ or the proportion of the entire expense to be borne by the locality.^* CONTRACTS 89. A municipal contract for public improvements is sub- ject to the following limitations and conditions: (1) It must be let and made in the prescribed method. (2) The subject-matter of the contract must have been included within the ordinance or resolution order- ing the improvement. (3) The contract must not surrender or abdicate any public function or duty. Assuming that the statutory requirements and conditions precedent to the making of a public improvement have been complied with before the passage of the ordinance or resolu- 6 4 Becker v. aty of Washington, 94 Mo. 375, 7 S. W. 291; City of Springfield v. Mathus, 124 111. 88, 16 N. E. 92; Parish v. Golden, 35 N. Y. 464; Jenkins v. Stetler, 118 Ind. 275, 20 N. E. 788; Wetmore V. Chicago, 206 111. 367, 69 N. E. 234. As to what constitutes a de- fect for uncertainty, see McDowell v. People ex rel., 204 111. 499, 68 N. B. 379. Where there were mere inaccuracies in the description of the proposed improvement: People ex rel. v. Burke, 206 111. 358, 69 N. E. 45 ; McChesney v. Chicago, 205 111. 611, 69 N. E. 82. But any substantial and material departure from the specification in a con- tract of a city which is required by law to be let to the lowest bid- der will render the contract void, notwithstanding but one bid was presented for the work. Le Tourneau v. Hugo, 90 Minn. 420, 97 N. W. 115. See Williamson v. Joyce, 140 Cal. 669, 74 Pac. 290; City of Chicago v. Hulbert, 205 111. 346, 68 N. E. 786. 5 5 Bacon V. City of Savannah, 86 Ga. 301, 12 S. E. 580; Woods v. City of Chicago, 135 111. 582, 26 N. E. 608; B.urghard v. Fitch, 24 Ky. Law Kep. 1983, 72 S. W. 778; Gage v. City of Chicago, 198 111. 512, 63 N. E. 1031; Smythe v. City of Chicago, 197 111. 311, 64 N. E. 361. Nor is the ordinance void for failing to specify the time with- in which the work shall be completed. Allen v. La Force, 95 Mo. App. 324, 68 S. W. 1057; Pierson v. People ex rel., 204 111. 456. 68 N. E. 383. 5 6 Kimble v. City of Peoria, 140 111. 157, 29 N. E. 723. § 89) CONTRACTS ■ 287 tion that the improvement shall be made by the city, it is im- portant next to inquire whether the contract formulated in pursuance thereof is within the scope and purview of the ordinance. At every step in the transaction there is a chal- lenge of authority which the contractor must heed at his peril : ^'' (a) Has the Legislature under the Constitution power to grant authority to the municipality? (b) Has the Legisla- ture duly conferred such power upon the municipality? (c) Has the governing board of the municipality, in pursuance of such authority, ordained that the improvement shall be made? (d) Is the proposed contract within the scope of the ordi- nance? (e) Is the person assuming to r^epresent the city in making the contract an authorized agent thereof? If an af- firmative answer can be given to all these questions, the con- tractor may feel secure in proceeding under his municipal con- tract. Mode of Contracting As shown in the last chapter,'* municipal contracts must be let and made in the manner prescribed by law, of which all 5 7 Citizens' Bank of Des Moines v. City of Spencer, 126 Iowa, 101, 101 N. W. 643; Case v. Johnson, 91 Ind. 477 ; City of Lancaster v. Miller, 58 Ohio St. 558, 51 N. E. 52; Jones v. Town of Lind, 79 Wis. 64, 48 N. W. 247; Fletcher v. City of Oshkosh, 18 Wis. 229; Drum- mond V. City of Eau Claire, '79 Wis. 97, 48 N. W. 244; CHIPPEWA BRIDGE CO. V. CITY OF DUBAND, 122 Wis. 85, 99 N. W. 603, 106 Am. St. Rep. 931, Oooley Cas. Mun. Corp. 175 ; Plewellin v. Proetzel, 80 Tex. 191, 15 S. W. 1043 ; Ziegler v. Chapin, 59 Hun, 214, 13 N. Y. Supp. 783; Id., 126 N. Y. 342, 27 N. E. 471; Dey v. Mayor, etc., of Jersey City, 19 N. J. Eq. 412 ; Lyon v. Alley, 130 U. S. 177, 9 Sup. Ct. 480, 32 L. Ed. 899; Mathewson v. City of Grand Rapids, 88 Mich. 558, 50 N. W. 651, 26 Am. St. Rep. 299; White v. Stevens, 6T Mich. 33, 34 N. W. 255; New Decatur v. Berry, 90 Ala. 432, 7 South. 838, 24 Am. St. Rep. 827; Green v. Ward, 82 Va. 324; People ex rel. Win- stanley v. Weber, 89 111. 347; Churchman v. City of Indianapolis, 110 Ind. 25C. 11 N. E. 301; City of St. Louis v. Davidson, 102 Mo. 149, 14 S. W. 825, 22 Am. St. Rep. 764 ; Murphy v. City of Louisville, 9 Bush (Ky.) 189; Welker v. Potter, 18 Ohio St. 85; Spokane Falls V. Browne, 3 Wash. 84, 27 Pac. 1077. 58 Ante, §§ 73, 74; Young v. People ex rel. Raymond, 196 111. 603, 63 N. B. 1075. 288 IMPROVEMENTS (Ch, 9 persons are bound to take notice ; and it need be here further noted only that a contract for a public improvement is one for personal services and skill, and not assignable without the consent of the municipality, and therefore that the assignee can maintain no action against the municipality for services rendered by him,°* and also that, where the contract provides that matters of uncertainty or dispute arising under a contract in making the improvement shall be submitted for arbitration, no action can be maintained by either party without first of- fering to make such submission."" Authority for Contract It is one of the requisites essential to the validity of an im- provement contract that the contract should correspond to or be within the scope of the ordinance authorizing the improve- ment.*^ To determine this question, particular attention should be directed to ascertaining whether the contract is (1) within the topographical limits prescribed in the ordinance; "^ (2) within the monetary limits fixed therein;*^ (3) of the nature of the improvement ordained by the council."* It is 6 9 Delaware County v. Dlebold Safe & Lock Co., 133 U. S. 473, 10 Sup. Ct. 399, 33 L. Ed. 674. 60 Phelan v. Mayor, etc., of City of New York, 119 N. T. 86, 23 N. B. 175. 61 Beaudry v. Valdez, 32 Cal. 269; Dougherty v. Hitchcock, 35 Cal. 512; Palmer v. Inhabitants of Haverhill, 98 Mass. 487; Haisch v. City of Seattle, 10 Wash. 435, 38 Pac. 1131; Young v. People ex rel. Raymond, 196 111. 603, 63 N. E. 1075 ; City of Boonville ex rel. Cos- grove V. Stephens (Mo. App.) 95 S. W. 314. 6 2 People V. Mayor, etc., of City of Brooklyn, 4 N. Y. 419, 55 Am. Dec. 266 ; Rogers v. City of St. Paul, 22 Minn. 494 ; Meggett v. City of Eau, Claire, '81 Wis. 326, 51 N. W. 566; Haisch v. City of Seattle, 10 Wash. 435, 38 Pac. 1131; Speer v. Mayor, etc., of City of Athens, 85 Ga. 49, 11 S. E. 802, 9 L. R. A. 402; Craig v. City of Philadelphia, 89 Pa. 265. 63 Dolese V. McDougall, 182 111. 486, 55 N. E. 547; McKee v. Town of Pendleton, 154 Ind. 652, 57 N. E. 532; Qarke v. City of Chicago, 185 111. 354, 57 N. E'. 15. 61 Church V. People ex rel. Kochersperger, 179 111. 205, 53 N. E. 554; Harrison v. City of Chicago, 163 111. 129, 44 N. E. 395; City of Connersville v. Merrill, 14 Ind. App. 303, 42 N. E. 1112 ; Beaudry v. § 89) CONTKACTS 289 obvious that a contract to grade, gutter, and pave a particular street will not support a contract upon another and different street; '" nor will an ordinance to expend ten thousand dollars in a specified improvement warrant a contract for the expendi- ture of fifteen thousand dollars for that purpose; '° nor can a contract to repair a street be safely based upon an ordinance to grade and pave it.°' The last distinction may become im- portant because of the fact that in most jurisdictions local assessments for improvements are held not to warrant re- pair;** and so the means promised and given to the con- tractor in consideration of his work might be void. But such result would not ordinarily prevent recourse upon the munici- pal treasury for his compensatron."" If the contract made should transgress the pecuniary limits or the section of the city prescribed in the ordinance, the contract would be void as to the excess of money promised, or the work outside the boundary limits of the ordinance.^* Valdez, 32 Cal. 269; Board of Councilmen of City of Frankfort v. Murray, 99 Ky. 422, 36 S. W. 180; City of Alton v. Middleton's Heirs, 158 111. 442, 41 N. B. 926; North Pacific L. & M. Co. v. East Portland, 14 Or. 3, 12 Pac. 4. But see Martihdale v. Palmer, 52 Ind. 411. 5 Willard v. Albertson, 23 Ind. App. 166, 54 N. B. 446. 6 6 Clarke v. City of Chicago, 185 111. 354, 57 N. E. 15. 67 O'Meara v. Green, 16 Mo. App. 118. 68 Bullitt V. Selvage, 20 Ky. Law Rep. 599, 47 S. W. 255. 6 9 City of Memphis v. Brown, 20 Wall. (U. S.) 289, 22 L. Ed. 264; Bill V. City of Denver (C. C.) 29 Fed. 344; Bucroft v. City of Council Bluffs, 63 Iowa, 646, 19| N. W. 807; Robertson v. City of Omaha, 55 Neb. 718, 76 N. W. 442, 44 L. R. A. 534; Reilly v. Albany, 112 N. Y. 30, 19 N. E. 508 ; Michel v. Police Jury of Terrebonne, 9 La. Ann. 67 ; City of Louisville v. Leatherman, 99 Ky. 213, 35 S. W. 625. 10 Ante, § 79. But under a statute giving a corporation authority to construct sewers within the municipality and beyond it, the town may construct sewers within its territorial limits, and in that of ad- joining municipalities to secure an outlet. Butler v. Town of Mont- clair, 67 N. J. Law, 426, 51 Atl. 494. See Langley v. City Council of Augusta, 118 Ga. 590, 45 S. E. 486, 98 Am. St Rep. 133 ; Le Feber V. West AlUs, 119 Wis. 608, 97 N. W. 203, 100 Am. St. Rep. 917; City of Chicago v. Hulbert, 205 111. 346, 68 N. E. 786; Fehler.v. Gosnell, 99 Ky. 380, 35 S. W. 1125, 18 Ky. Law Rep. 238. Cool.Mtjn.Coep. — 19 290 IMPEOVEMENTS (Cll. 9 Public Powers Inaiienable As we have heretofore seen, no public corporation may in any way alienate or surrender the trust powers conferred upon it for the public welfare.''^ Of this nature are police powers, eminent domain, control of streets, and the like. A contract, therefore, with a gas or water company, though based upon a valid consideration, permitting it to use the streets of a city for the purpose of laying down its mains, cannot, as we have seen, obstruct a city in the exercise of any of these public pow- ers ; and the company cannot enjoin a contractor in the ex- ecution of a contract made by him with the city calling for grading below the level of the pipes, and thus requiring them to be relaid below the new level of the street.'^ Nor will a contract right of a street railway company to use the city streets prevent work under a contract to regrade the entire street, and thereby disturb the bed and track of the railway, even though the company had itself agreed to make the im- provement.''* DAMAGES 90. No action lies at' common law against a municipal cor- poration for damages resulting to the property of an individual from the prosecution, with reasona- ble care and skill, of duly authorized works of mu- nicipal improvement. This rigorous doctrine of the common law, though often contested in our American courts because of its rank injustice in individual cases, has nevertheless been fully maintained by them,'* and the modifications or alterations found in the de- cisions of several of the states are due to constitutional or stat- 71 See ante, § 77. 72 Roanoke Gas Co. v. City of Roanoke, 88 Va. 810, 1,4 S. E. 665. '3 Chipago, E. & Q. R. Co. v. City of Quincy, 139 111. 355, 28 N. E. 1069. 7 4 Smith, to Use of Cushing, v. Washington, 20 How.. (U. S.) 135, 15 L. Ed. 858; De Lucca v. City of North Little Rock (C. O.) 142 Fed. § 90) DAMAGES 291 utory changes in the common law. In the leading case of O'Connor v. Mayor, etc., of City of Pittsburgh,''^ in which, by a reduction of seventeen feet in the street grade, a church which had been erected according to directions of the city reg- ulator was rendered worthless and required to be torn down, the court said: "We had this case reargued in order to dis- cover, if possible, some way to relieve the plaintiff consistently with law, but grieve to say we can find none. The law is set- tled not only in Pennsylvania, but by every decision in the sister states, except one. * * * The loss to the congrega- tion is a total one, while the gain to holders of property in the neighborhood is immense. The Legislature that incorporated the city never dreamed that it was laying the foundation of such injustice, but as the charter stands it is unavoidable." .The authority given the city by its charter was "to improve, repair, and keep in order the streets." The concurrence of de- cision in similar cases by the Supreme Courts of the United States,''" of Massachusetts,'^ and of New York '' in this view, and its adoption by all the other states but one," leaves no doubt as to this doctrine of the common law as above stated. Chief Justice Gibson, in the O'Connor Case, above cited, ex- 597 ; Sauer v. City of New York, 206 U. S. 536, 27 Sup. Ct. 686, 51 L. Ed. 1176; 'Watson v. City of Kingston, 114 N. Y. 88, 21 N. E. 102; Walish V. City of Milwaukee, 95 Wis. 16, 69 N. W. 818 ; Callender V. Marsh, 1 Pick. (Mass.) 418; O'Connor v. Mayor, etc., of City of Pittsburgh, 18 Pa. 187 ; Humes v. Mayor, etc., of Town of Knoxville, 1 Humph. (Tenn.) 403, 34 Am. Dec. 657; City of Delphi v. Evans, 36 Ind. 90, 10 Am. Eep. 12; Goodall v. City of Milwaukee, 5 Wis. 32; Taylor v. City of St. Louis, 14 Mo. 20, 55 Am. Dec. 89. 75 18 Pa. 187. 76 Pumpelly v. Green Bay & M. Canal Co., 13 Wall. (U. S.) 166, 20 L. Ed. 557. 7 7 Brown v. City of Lowell, 8 Mete. (Mass.) 172. 7 8 Eadcliff's Ex'rs v. Mayor, etc., of Brooklyn, 4 N. Y. 195, 53 Am. D«c. 357. 7 9 For a full half century, beginning with the cases of Goodloe v. City of Cincinnati, 4 Ohio, 500, 22 Am. Dec. 764, and Smith v. City of Cincinnati, 4 Ohio, 514, the Supreme Court of Ohio has maintain- ed this exceptional position on the law of consequential damages for grading by a municipal corporation. 292 IMPROVEMENTS (Ch, 9 pressed the popular opinion in stating that "to obtain com- plete justice every damage to private property ought to be compensated by the state or corporation that occasions it, and a general statutory remedy ought to be provided to assess the value." It was ruled in that case *" that, since the work of improvement did not trespass upon the land of the plaintiff, no property of the plaintiff was taken within the meaning of the constitutional provision requiring just compensation in case of exercise of the power of eminent domain, and there- fore plaintiff could not evoke the protection of the Constitu- tion. Since the decision in that case many states have incor- porated into their Constitutions a provision that private prop- ery shall not be taken or damaged for public use without just compensation therefor;*^ and most of the other states have obtained the same result by legislative enactment. °^ While the rule may be regarded as settled that a municipal corporation is not liable for consequential injuries due to the making of public improvements, so long as they are made in a careful and ordinarily skillful manner, it is, nevertheless, generally conceded that if the city is negligent in devising or adopting the plan of the improvement, or in executing the same, or if the authorities act unlawfully, the corporation is liable.*' 80 O'Connor v. Mayor, etc., of City of Pittsburgh, 18 Pa. 187. 81 See Constitutions of California, Georgia, Illinois, Missouri, Ne- braska, and West Virginia. 8 2 The undoubted power of the Legislature to thus change the common-law rule was recognized and its use recommended by Chief Justice Gibson in O'Connor v. Mayor, etc., of City of Pittsburgh, supra, in 1851, and most of the states have made the change during the last half century. 8 3 Davis V. City of Crawfordsville, 119 Ind. 1, 21 N. E. 449, 12 Am. St Eep. 361; Stein v. City of Lafayette, 6 Ind. App. 414, 3S N. E. 912; Leiper v. City and County of Denver, 36 Colo. 110, 85 Pac. 849, 7 L. K. A. (N. S.) 108, 118 Am. St. Rep. 101, 10 Ann. Cas. 847 ; Smith, to Use of Gushing, v. Washington, 20 How. (U. S.) 135, 15 L. Ed. 858 ; City of North Vernon v. Voegeer, 103 Ind. 314, 2 N. E. 821 ; City of Bloomington v. Brokaw, 77 111. 194; Mayor, etc., of Town of Frost- burg V. Hitchins, 70 Md. 56, 16 Atl. 380; Haubner v. City of MU- § 90) DAMAGES 293 Statutory Changes The details of the statutes giving a remedy to the property owner injured by the improvement are so various in the sev- eral states as to fprbid our consideration. Only the general features can be referred to. In their purpose and effect they protect the property owner in his constitutional right to due process of law by providing for him a hearing before some competent tribunal, both as to the expediency of the improve- ment and the amount of the damages, and secure to him pay- ment of the same out of the public treasury. But it is gen- erally provided that the special damages suffered by each prop- erty holder may be set off by the special benefit to the property from the improvement. °* This results practically in a com- parison of the value of each particular piece of property at the beginning of the improvement with its value immediately after its completion. The award of damages is thus confined to those few instances in which the property is not enhanced in value by the improvement. The decisions upon this question, however, are not uniform, except in holding that allowance may be made for such benefits only as are not common to the. general public. *° Some cases hold that the set-off can be al- waukee, 124 Wis. 153, 102 N. W. 578; Caldwell v. Town of Nashua, 122 Iowa, 179, 97 N. W. 1000; Hildretli v. City of Lowell, 77 Mass. (11 Gray) 345; Platter v. aty of Seymour, 86 Ind. 323. 84 Qark v. City of EUzabeth, 61 N. J. Law, 565, 40 Atl. 616; Pickles V. Ansonia, 76 Conn. 278, 56 Atl. 552 ; Barr v. City of Oma- ha, 42 Neb. 341, 60 N. W. 591; Chase v. City of Portland, 86 Me. 367, 29 Atl. 1104; Commissioners of Town of Asheville v. Johnston, 71 N. C. 398; Lipes v. Hand, 104 Ind. 503, 1 N. E. 871. 8 5 Kirkendall v. City of Omaha, 39 Neb. 1, 57 N. W. 752. The special benefits which may be applied in reduction of damages sus- tained by a property owner from a change In the street grade are not private improvements subsequently made by his neighbors, but only those local and peculiar benefits received by him from the change. Pickles v. Ansonia, 76 Conn. 278, 56 Atl. 552. See City of Joliet V. Adler, 71 111. App. 456; Blair v. aty of Charleston, 43 W. Va. 62, 26 S. B. 341, 35 L. R. A. 852, 64 Am. St. Rep. 837; Grier v. Homestead Borough, 6 Pa. Super. Ct. 542, 42 Wkly. Notes Cas. 18 ; Chicago Union Traction CO. v. Chicago, 204 111. 363, 68 N. B. 519 ; Stowell V. Board of Public Works for City of N6w Bedford, 184 294 IMPEOVBMENTS (Ch. 9 lowed only against incidental injury sustained,'^ while others allow it against the value of the land as well.*' A few cases deny all right of set-off.'* Remedies Provided The remedy also for obtaining compensation is various in the several states. In some of them the property holder must appear before the city council and there present his claim for damages, which damages are thereupon estimated by some tribunal provided by statute. In other cases a proceeding must be brought in court by the corporation against the property holder, wherein the property is condemned for the public use, and the damages therefor are duly ascertained; or, if the municipality shall omit to take this proceeding before enter- ing upon its work of improvement, the property holder may bring it for the purpose of obtaining compensation, with prac- tically the same result as if brought by the municipality. In some states a right of action at common law as for other damages is expressly given; and in some choice is allowed the property holder between two or more of these remedies, in , which case the election of any one remedy excludes the others, and the decision thereunder is conclusive of his right.'" This is based upon the doctrine, well established by many judicial decisions, that due process of law guaranteed by the Mass. 416, 68 N. E. 675; Walsli v. City of Scranton, 23 Pa. Super. Ct. 276; Whitehead v. Manor Borough, 23 Pa. Super. Ct. 314. 86 City of Shawneetown v. Mason, 82 111. 337, 25 Am. Rep. 321. In Lux & Talbott Stone Co. v. Donaldson, 162 Ind. 481, 68 N. E. 1014, the court held that in an action to recover assessments for a street improvement an abutting property owner cannot set up a counter- claim for damages arising out of the failure of the contractor to perform the work according to the contract, the work having been duly accepted by the city council. 8 7 Putnam v. Douglas County, 6 Or. 328, 25 Am. Rep. 627; In re Root's Case, 77 Pa. 276. 88 Israel v. Jewett, 29 Iowa, 475. esRighter v. Mayor, etc., of City of Newark, 45 N. J. Law, 104; Brown v. City of Grand Rapids, 83 Mich. 101, 47 N. W. 117; Arends v. City of Kansas City, 57 Kan. 350, 46 Pae. 702; Byram v. Foley, 17 Ind. App. 629, 47 N. E. 851. § 91) SPECIAL ASSESSMENTS 295 Constitution may be had as well by special proceedings be^ fore a special tribunal as by an action in court. °° It has often been held that payment of damages must precede the taking of private property for public use; "^ but unless this is pro- vided by statute it has generally been held sufficient that ade- quate provision is made for ascertaining and securing the com- pensation."^ The property holder is entitled to demand com- pensation as soon as the appropriation has been definitely de- cided upon, without waiting for the actual taking.^* SPECIAL ASSESSMENTS 91. Special assessments for municipal improvements are authorized and made upon the idea that property enhanced in value by such improvements should bear the expense thereof, not as a burden, but as compensation for benefits specially conferred there- by. It is a fundamental doctrine of American jurisprudence that those receiving special benefits from the public should make compensation for them."* The application of this doctrine within municipal limits results in local assessments for special benefits conferred. The authority of the Legislature to pro- vide for these local assessments has been established by 8 City of Duluth v. Dibblee, 62 Minn. 18, 63 N. W. 1117; Garvin V. Daussman, 114 Ind. 429, 16 N. E. 826, 5 Am. St. Rep. 637; Spencer V. Merchant, 125 U. S. 345, 8 Sup. Ct. 921, 31 L. Ed. 763; Reclama- tion Dist. V. Goldman, 65 Cal. 638, 4 Pac. 678 ; Stuart v. Palmer, 74 N. Y. 183, 30 Am. Rep. 289. 81 Hirth V. City of Indianapolis, 18 Ind. App. 673, 48 N. E. 876; Martin v. Tyler, 4 N. D. 278, 60 N. W. 392, 25 L. R. A. 838. 8 2 Sage V. City of Brooklyn, 89 N. Y. 189. 83 Cooley, Const. Lim. (6th Ed.) 696. But in Devlin v. Philadel- phia, 206 Pa. 518, 56 Atl. 21, the court said that no damages could be recovered for the establishment of a grade in a city until the actual vrork of grading has begun. 94 1 Hare, Const. Law, 301; Burrough, Tax'n, 460, 461. 296 IMPROVEMENTS (Ch. 9 repeated Judicial decision declaring not only their constitution- ality, but also their reasonableness. °° For example, the Su- preme Court of Missouri has happily said: "While the few ought not to be taxed for the benefit of the whole, the whole ought not to be taxed for the few. * * * General taxa- tion for a purely local purpose is unjust. It burdens those who are not benefited, and benefits those who are exempt from the burden." ^* The principle underlying special assessments to meet the cost of public improvements is that the property on which they are imposed is peculiarly benefited, and therefore the owners do riot, in fact, pay anything in excess of what they receive by reason of such improvement. ^'^ So, likewise, the Supreme Court of Louisiana has declared that the system of paying for such improvements wholly out of the general treasury is inequitable, that often it results in great extravagance, abuse, and injustice, and that it is safer and juster to compel the particular locality specially benefited to bear specially the bur- den in whole or in part."' On the other hand, imposing on the property owner a pro- portion of the cost of the improvement in substantial excess 90 Cooley, Const. Lim. (6th Ed.) 614, citing People v. Mayor, etc., of City of Brooklyn, 4 N. Y. 419, 55 Am. Dec. 266; Hammett v. City of Philadelphia, 65 Pa. 146, 3 Am. Rep. 615; City of Louisville v. Hyatt, 2 B. Mon. (Ky.) 177, 36 Am. Dec. 594; Nichols v. City of Bridgeport, 23 Conn. 189, 60 Am. Dec. 636; City of Chicago v. Larned, 34 111. 203; Hines v. Leavenworth, 3 Kan. 186; Farrar v. City of St. Louis, 80 Mo. 380; Burnett v. Mayor, etc., of City of Sacramento, 12 Cal. 76, 73 Am. Dec. 518; Richardson v. Morgan, 16 La. Ann. 429; Baker v. City of Cincinnati, 11 Ohio St. 534; State v. Dean, 23 N. J. Law, 335; City of Fairfield v. Ratcliff, 20 Iowa, 396; McGehee v. Ma this, 21 Ark. 40; Palmer v. Stumph, 29 Ind. 329; Town of Macon v. Patty, 57 Miss. 378, 34 Am. Rep. 451; Cain v. Davie County Com- missioners, 86 N. C. 8; Norfolk City v. Ellis, 26 Grat. (Va.) 224; Wil- kins V. Detroit, 46 Mich. 120, 8 N. W. 701 ; Roundtree v. City of Gal- veston, 42 Tex. 612. See, also. City of Chicago v. Brown, 205 111. 568, 69 N. E. 65. • 98 Lockwood V. City of St. Louis, 24 Mo. 20. 9 7 Norwood V. Baker, 172 U. S. 269, 19 Sup. Ct. 187, 43 L. Ed. 443. 9 8 Municipality No. 2 v. Dunn, 10 La. Ann. 57. § 91) SPECIAL ASSESSMKNTS 297 of the special benefits accruing to him is, to the extent of such excess, a taking, under the guise of taxation, of private prop- erty for public use without compensation. To be objection- able on this ground, however, the excess must be substantial, because exact equality of taxation is not always attainable."" The idea underlying these special levies is that no injustice can result from requiring property enhanced in value by local improvements to pay the cost thereof, especially when this is less than the enhancement; and the possibility of injustice is lessened, if not, indeed, removed, when compensation is pro- vided for damages sustained from these improvements.* MMnicipal Discretion — Due Process of Law Whether a given improvement is expedient and necessary, and whether it is general or local, are legislative questions; and when the municipality is vested with power to determine them the municipal decision is conclusive, and not subject to review by the courts.^ This general doctrine is modified by decisions in some states that there may be judicial inquiry on charge of fraud, mistake, oppression, or corruption,' and, if sustained, the court may vacate the municipal ordinance or enjoin the work of improvement.* It has also been held that »9 Norwood V. Baker, 172 U. S. 269, 19 Sup. Ct. 187, 43 L. Ed. 443, 1 See ante, § 90. Special benefits are the basis of special assess- ments: and assessment without benefit, and the obvious excess of levy over benefit, have been declared to be confiscation, and properly enjoined. Norwood v. Baker, 172 U. S. 269, 19 Sup. Ct. 187, 43 h. Ed. 443; Town of Macon v. Patty, 57 Miss. 378, 34 Am. Rep. 451; Bo- gert v. City of Elizabeth, 27 N. J. Eq. 568; McCormack v. Patchin, 53 Mo. 33, 14 Am. Rep. 440. 2 See ante, § 88, p. . s City of Bloomington v. Chicago & A. R. Co., 134 111. 451, 26 N. E. 366; Dempster v. City of Chicago, 175 111. 278, 51 N. E. 710; Dewey V. City of Des Moines, 101 Iowa, 416, 70 N. W. 605; Michener v. Phil- adelphia, 118 Pa. 535, 12 Atl. 174; Spencer v. Merchant, 100 N. X. 585, 3 N. E. 682. * Nlver V. Village of Bath-on-the-Hudson, 27 Misc. Rep. 605, 58 N. Y. Supp. 270; Richter v. City of New York, 24 Misc. Rdp. 613, 54 N. Y. Supp. 150 ; Holmes v. Village of Hyde Park, 121 111. 128, 13 N. E. 540. ■ 298 IMPKOVEMENXS (Ch. 9 similar remedy may be employed in case where local assess- ment has been made for what is obviously a work of gen- eral municipal improvement.'^ Where discretion is to be ex- ercised by any tribunal in detei^jnining whether a special assessment shall be levied, or what portion shall be imposed upon particular property, each owner is entitled, under con- stitutional guaranty of due process of law, to such notice as will enable him to challenge the expediency of the improve- ment or the justice of the levy." It has also been held that this notice need not necessarily be in limine, but is sufficient if given in due time to permit an appearance and contest upon all matters affecting his rights and interests under the im- provement.'' But it seems no notice is necessary where the improvement is ordained by legislative enactment, allowing no discretion to the common council, and making the levy a mere matter of mathematical calculation, as upon the basis of f rent- age. « Apportioning Assessments As already indicated, the theory of special assessments is that those who receive special benefits in the municipahty are therefore Hable to special burdens of taxation. If a particu- lar street is to be graded, guttered, curbed, and paved, the expense of this special improvement should be borne by the lot owners upon that street. ° So, also, of sidewalks, sewers, and drains for a particular locality;^" and so, in general, 5 City of Bloomington v. Chicago & A. R. Co., 134 111. 451, 26 N. E. 365. « Stuart V. Palmer, 74 N. Y. 183, 30 Am. Rep. 289 ; Ulman v. May- or, etc., of City of Baltimore, 72 Md. 587, 20 Atl. 141, 11 L. R. A. 224; Davidson v. New Orleans, 96 U. S. 97, 24 L. Ed. 616. 7 City of Duluth v. Dibblee, 62 Minn. 18, 63 N. W. 1117. 8 Amery v. City of Keokuk, 72 Iowa, 701, 30 N. W. 780. 9 Hale V. City of Kenosha, 29 Wis. 599; ©organ v. City of Boston, 12 Allen (Mass.) 223; State v. Reis, 38 Minn. 371, 38 N. W. 97; Allen v. City of Davenport, 107 Iowa, 90, 77 N. W. 532 ; City of Lafayette .V. Fowler, 34 Ind. 140. 10 PALMER V. CITY OF DANVILLE, 154 111. 156, 38 N. E. 1067, Cooley, Cas. Mun. Corp. > 202, 225; Wolf v. City of Philadelphia, 105 § 91) SPECIAL ASSESSMENTS 299 wherever the municipality, in the exercise of its charter pow- ers, incurs an extraordinary expense for the special benefit of a particular portion of the city, it may in the exercise of its power of apportionment imposp upon that locality special taxes sufficient to pay the entire amount of this extraordinary expense, or such portion thereof as it may deem proper.^ ^ This general doctrine of the law, however, is subject to ex- ception in some states wherein it has been held that the con- stitutional provision for equality and uniformity of taxation prevent such special assessment for local improvements/' The power to make local assessments exists only in those mu- nicipalities upon which it has been specially conferred.^' It is not to be implied from the general power of taxation.^* In Tennessee the peculiar rule exists that abutters may be Pa. 25; Grunewald v. Cedar Rapids, 118 Iowa, 222, 91 N. W. 1059; City of Atchison v. Price, 45 Kan. 296, 25 Pac. 605; Hill v. Warrell, 87 Mich. 135, 49 N. W. 479; Wright v. City of Boston, 9 Cush. (Mass.) 233. 11 Village of Norwood v. Baker, 172 V. S. 269, 19 Sup. Ct. 187, 43 L. Ed. 443; Illinois Central R. Co. v. Decatur, 147 U. S. 190, 13 Sup. Ct 293, 37 L. Ed. 132 ; CITY OF RALEIGH v. PEACE, 110 N. C. 32, 14 S. E. 521, 17 L. R. A. 330, Cooley, Cas. Mun. Corp. 218; Vil- lage of Morgan Park v. Wiswall, 155 111. 262, 40 N. E. 611. 12 Taylor v. Chandler, 9 Heisk. (Tenn.) ?49, 24 Am. Rep. 308; Mayor, etc., of Mobile v. Dargan, 45 Ala. 310; Stinson v. Smith, 8 Minn. 366 (Gil. 326). 13 City of Fairfield v. RatclifE, 20 Iowa, ^96; Mayor, etc., of City of Annapolis v. Harwood, 32 Md. 471, 3 Am. Rep. 161; State v. May- or, etc., of Ashland, 71 Wis. 502, 37 N. W. 809 ; Drake v. Phillips, 40 111. 388; Flewellin v. Proetzel, 80 Tex. 191, 15 S. W. 1043; Hitchcock V. Galveston, 96 U. S. 341, 24 L. Ed. 659; MeNamara v. Estes, 22 Iowa, 246; Reed v. City of Toledo, 18 Ohio, 161; Vance v. aty of Little Rock, 30 Ark. 435. The only basis on which special taxation or special assessments can be sustained is that the property subject to assessment or tax- ation will be enhanced in value to the extent of the burden imposed. City of Butte v. School Dist. No. 1, 29 Mont. 336, 74 Pac. 869. 14 Hitchcock V. Galveston, 96 U. S. 341, 24 L. Ed. 659; First Pres- byterian Church of Ft. Wayne v. City of Ft. Wayne, 36 Ind. 338, 10 Am. Rep. 35; Appeal of Powers, 29 Mich. 504; Sharp v. Speir, 4 Hill (N. Y.) 76. 300 IMPEOVEMBNTS (Ch. 9 taxed for the cost of constructing sidewalks in front of their property, but not for curbing, guttering, and paving.^" Two methods are in common use for fixing the basis for apportioning the assessment upon the separate lots in a local- ity: (1) An assessment according to a standard fixed in the enabling act, and applicable to lots by measurements of front- age, surface, or value; (2) an assessment made by commis- sioners or a jury of view upon the basis of the benefit esti- mated by them to be conferred upon each lot by the proposed improvement.'* The frontage rule is the one in common use, and has been sustained by repeated adjudication,'^ though there 15 Mayor, etc., of Town of Franklin v. Maberry, 6 Humph. (Tenn.) 368, 44 Am. Dec. 315; WTiyte v. Mayor, etc., of Town of Nashville, 2 Swan (Tenn.) 369 ; Taylor v. Chandler, 9 Heisk. (Tenn.) 349, 24 Am. Eep. 308. 16 RAYMOND'S ESTATE v. BOROUGH OF RUTHERFORD, 55 N. J. Law, 441, 27 Atl. 172, Cooley, Oas. Mun. Corp. 216. IT Davis V. City of Lynchburg, 84 Va. 861, 6 S. E. 230; Parker v. Challiss, 9 Kan. 155; 'Magee v. Commonwealth, to Use of City of Pittsburgh, 46 Pa. 358; Bacon v. City of Savannah, 86 Ga. 301, 12 S. E. 580; Whiting v. Quackenbush, 54 Cal. 306; City of Pueblo v. Robinson, 12 Colo. 593, 21 Pac. 899 ; Wlilder v. City of Cincinnati, 26 Ohio St. 284; Rolph v. City of Fargo, 7 N. D. 640, 76 N. W. 242, 42 L. R. A. 646 ; Beaumont v. City of Wilkes-Barre, 142 Pa. 198, 21 Atl. 888; Wilbur v. City of Springfield, 123 111. 395, 14 N. E. 871; Allen V. Drew, 44 Vt. 174; King v. City of Portland, 2 Or. 146 ; Ulman v. Mayor, etc., of City of Baltimore, 72 Md. 587, 20 Atl. 141, 11 L. R. A. 224; White v. People ex rel. City of Bloomington, 94 111. 604; CITY OF RALEIGH v. PEACE, 110 N. C. 32, 14 S. E. 521, 17 L. R. A. 330, Copley, Cas. Mun. Corp. 218; State v. Reis, 38 Minn. 371, 38 N. W. 97; Hand v. City Council of City of Elizabeth, 30 N. J. Law, 365; Jennings v. Le Breton, 80 Cal. 8, 21 Pac. 1127; Cleveland v. Tripp, 13 R. I. 50; Thomas v. Gain, 35 Mich. 155, 24 Am. Rep. 535; O'Reilley V. City of Kingston, 114 N. Y. 439, 21 N. B. 1004; Heman Const Co. V. McManus, 102 Mo. App. 649, 77 S. W. 310 ; Allen v. City of Daven- port, 107 Iowa, 90, 77 N. W. 532; City of Kalamazoo v. Francoise, 115 Mich. 554, 73 N. m 801; PAYNE v. VILLAGE OF SOUTH SPRINGFIELD, 161 111. 285, 44 N. E. 105, Cooley, Cas. Mun. Corp. 203; Emery v. San Francisco Gas Co., 28 Cal. 345; Walsh v. Mat- the-s^s, 29 Cal. 123; City of Cincinnati v. Wilder, 6 Ohio Dec. 1046; Sheley v. Detroit, 45 Mich. 431, 8 N. W. 52; Northern Indiana R. Co. V. Connelly, 10 Ohio St. 159; Maloy v. City of Marietta, 11 Ohio St. «36 ; Mayor, etc., of Jersey City v. Howeth, 30 N. J. Law, 521. § 91) SPECIAL ASSESSMENTS 301 are some cases holding to the contrary." By this method the entire cost of a given street improvement is apportioned among the lots fronting thereon according to the respective frontage of each lot 'on the street. The method of apportioning the cost according to area of the land benefited is often used in the case of sewer construc- tion.^^ A street or sewer assessment may be made for the whole street or a part thereof, even to a single block ; ^^ and different streets, it seems, may be included in the same assess- ment.^^ A valid assessment can only be made in pursuance of the method prescribed by law.°* 18 Clapp V. City of Hartford, 35 Conn. 66; Morse v. City of Omaha, 67 Neb. 426, 93 N. W. 734; Bassett v. City of New Haven, 76 Conn. 70, 55 Atl. 579; Brown v. Central Bermudez Co., 162 Ind. 452, 69 N. E. 150; Taylor v. Chandler, 9 Heisk. (Tenn.) 349, 24 Am. Rep. 308; Agens V. Mayor, etc., of City of Newark, 37 N. J. Law, 415, 18 Am. Rep. 729; Seely v. City of Pittsburgh, 82 Pa. 360, 22 Am. Eep. 760; Warren v. City of Grand Haven, 30 Mich. 24; Peay v. City of Little Rock, 32 Ark. 31. i» Swain v. Fulmer, 135 Ind. 8, 34 N. E. 639; Grimmell v. City of Des Moines, 57 Iowa, 144, 10 N. W. 330; City of Denver v. Dumars, 33 Colo. 94, 80 Pac. 114. Cut see Auditor General v. O'Neill, 143 Mich. 343, 106 N. W. 895. 2 Scovill V. City of Cleveland, 1 Ohio St. 126; Schenley v. Com., to Use of City of Allegheny, 36 Pa. 29, 78 Am. Dec. 359; Brevoort v. City of Detroit, 24 Mich. 322; Parker v. Challiss, 9 Kan. 155. 21 Allen V. City of Davenport, 107 Iowa, 90, 77 N. W. 532; Wilbur V. City of Springfield, 123 111. 395, 14 N. E. 871; Mayall v. City of St. Paul, 30 Minn. 294, 15 N. W. 170; In re Walter, 75 N. Y. 354. Contra, Arnold v. City of Cambridge, 106 Mass. 352. 22 Bowei; v. Bainbridge, 116 Ga. 794, 43 S. B. 67; Newman v. City of Emporia, 32 Kan. 456, 4 Pac. 815 ; Lyon v. Alley, 130 V. S. 177, 9 Sup. Ct. 480, 32 D. Ed. 899; Zottman v. City and County of San Francisco, 20 Cal. 96, 81 Am. Dee. 96; Flewellin v. Proetzel,- 80 Tex. 191, 15 S. W. 1043 ; White v. Bayonne, 49 N. J. Law, 311, 8 Atl. 295; White V. City of Saginaw, 67 Mich. 33, 34 N. W. 255 ; Hawthorne v. City of East Portland, 13 Or. 271, 10 Pac. 242; Allen v. City of Galveston, 51 Tex. 302; City of Spokane Falls v. Browne, 3 Wash. 84, 27 Pac. 1077; Lott V. Ross, 38 Ala. 156; Churchman v. City of Indianapolis, 110 Ind. 259, 11 N. E. 301 ; City of Lowell v. Wheelock, 11 Cush, (Mass.) 391. 302 IMPROVEMENTS (Ch. 9 Property Liable While an assessment for improvements is not in a strict sense a tax, yet it so far partakes of the nature of a tax as to make it operative, generally, only on property subject to taxation,^^ though it must be borne in mind that exemption from taxation does not necessarily exempt from local assess- ments. And as has been already noticed, only such property as is benefited by the improvement is subject to assessment therefor. The question of liability of various kinds of prop- erty to assessment depends on the local statutes. For ex- ample, under some statutes vacant unimproved lands are ex- empt from assessment,^* while in other jurisdictions such lands are assessable if special benefits will result from the im- provement.^^ It is generally no objection to the assessment of lands lying within the city limits that they are unplatted and used for agricultural purposes. ^° There are numerous conflicting decisions as to the liability of railroad property to assessment, the conflict arising gener- ally because of differences in the local statutes. Generally, railroad lands used for roundhouses, depots, terminal yards, etc., are assessable,^' though as to right of way, roadbeds, etc., the decisions are conflicting.^* 23 Lowe V. Board of Com'rs of Howard County, 94 Ind. 553. 2 4 Provident Inst, for Savings v. Allen, 37 N. J. Eq. 36; City of Atlanta v.' Gabbett, 93 Ga. 266, 20 S. E. 306. 2= Warren v. City of Chicago, 118 111. 329, IX N. E. 218; Medland V. Linton, 60 Neb. 249, 82 N. "W. 866. 2 6 Allen V. City of Davenport, 107 Iowa, 90, 77 N. W. 532; Barber Asphalt Pav. Co. v. Garr, 115 Ky. 334, 73 S. W. 1106; Taber v. Graf- miUer, 109 Ind. 206, 9 N. E. 721. 2' Atchison, T. & S. F. R. Co. v. Peterson, 5 Kan. App. 103, 48 Pac. 877, aflarmed 58 Kan. 818, 51 Pac. 290; City of Philadelphia v. Phila- delphia & E. R. Co., 177 Pa. 292, 35 Atl. 610 ; Burlington & M. R. R. Co. V. Spearman, 12 Iowa, 112. 28 South Park Com'rs v. Chicago, B. & Q. R, Co., 107 111. 105; De- troit, G. H. & M. Ry. Co. v. City of Grand JRapids, 106 Mich. 13, 63 N. W. 1007, 28 L. R. A. 793, 58 Am. St. Rep. 466; Illinois Cent. R. § 91) SPECIAL ASSESSMENTS 303 E^remptions Loca^ assessment is obviously an exercise of the taxing pow- er; and yet such assessments have generally been held not to come within the meaning of the word "taxation" as used in clauses of revenue statutes exempting certain property from taxation.^* For example, "all public taxes" '" has been held not to embrace local assessments. So also of the phrases "rates and assessments"; ^^ "taxation of every kind"; '^ "tax- ation of every description";^^ "all taxes, either state, parish, or city";^* "all and' every county, road, city, and school tax";^' "taxes of every kind";'" "charges and imposi- tions";^^ "any tax or public imposition whatever"; ^' "taxes, Co. V. City of Kankakee, 164 111. 608, 45 N. E. 971; Pittsburgh, C, C. & St. L. Ry. Co. V. Taber, 168 Ind. 419, 77 N. E. 741, 11 Ann. Cas. 808; Minneapolis & St. L. R. Co. v. Linquist, 119 Iowa, 144, 93 N. W. 103; Chatham County Com'rs v. Seaboard A. L. R. Co., 133 N. C. 216, 45 S. E. 566. 29 Adams County v. City of Quincy, 130 111. 566, 22 N. E. 624, 6 L. R. A. 155 ; Washburn Memorial Orphan Asylum v. State, 73 Minn. 343, 76 N. W. 204; Kansas City Exposition Driving Park v. Kansas City, 174 Mo. 425, 74 S. W. 979 ; Ford v. Delta & P. Land Co., 164 U. S. 662, 17 Sup. Ct. 230, 41 L. Ed. 590; Lima v. Uma Cemetery Ass'n, 42 Ohio St. 128, 51 Am. Rep. 809; City of Atlanta v. First Presby- terian Church, 86 Ga. 730, 13 S. E. 252, 12 L. R. A. 852 ; Olive Ceme- tery Co. V. City of Philadelphia, 93 Pa. 129, 39 Am. Rep. 132; In re Mayor, etc., of City of New York, 11 Johns. (N. Y.) 77; Mayor, etc., of City of Baltimore v. Proprietors of Green Mount Cemetery, 7 Md. 517. 30 Buffalo City Cemetery v. City of Buffalo, 46 N. Y. 506. 31 Northern Liberties v. St. John's Church, 13 Pa. 104. 32 Sheehan v. Good Samaritan Hospital, 50 Mo. 155, 11 Am. Rep. 412. 33 President, etc., of City of Paterson v. Society for Establishing Useful Manufactures, 24 N. J. Law, 385. 3* City of Lafayette v. Male Orphan Asylum, 4 La. Ann. 1. 36 Trustees of Illinois & M. Canal v. City of Chicago, 12 111. 403, 3 8 iiUnois Cent. R. Co. v. City of Decatur, 126 111. 92, 18 N. E. 315, 1 L. R. A. 613. 3T Mayor, etc., of City of Baltimore v. Proprietors of Green Mount Cemetery, 7 Md. 517. 3 8 City of Bridgeport v. New York & N. H. R. Co., 36 Conn. 255, 4 Am. Rep. 63. 304 IMPROVEMENTS (Ch. 9 charges, and impositions." "' In short, exemption from gen- eral taxation does not exempt from local assessment. . But it has been held that "exemption from all assessments and taxes whatever by the city" exempts from local assessment;*" and . so also of exemptions from "all civil impositions, taxes, and rates." ** It is a question of legislative intention, to be as- certained by statutory interpretation, and it has been held to be constitutional for the legislature to exempt from special assessment as well as from general taxation.** ENFORCING COLLECTION 92. Special assessments, being charges upon particular property, may be collected by enforcing thq lien on the property in the method prescribed by the statute. In some states they have been held to af- ford ground for personal judgment against the property owner j but the weight of authority, as well as the reason of the matter, opposes such rem- edy for the enforcement of a special assessment. Generally, by the provisions of the city charter or by stat- ute, assessments are made a lien on the property benefited by the improvement. No valid lien exists, however, unless the assessment has been made in substantial compliance with the 30 New Jersey R. & Transp. Co. v. Mayor, etc., of City of Newark, 27 N. J. Law, 185. 40 First Division of St. Paul & P. R. Co. v. City of St. Paul, 21 Minn. 526. 41 President, etc., of Harvard College v. Board of Aldermen of City of Boston, 104 Mass. 470. 42 Dyker Meadow Land & Irnprovement Co. v. Cook, 3 App. Div. 164, 38 N. Y. Supp. 222; Yates v. City of Milwaukee, 92 Wis. 352, 66 N. W. 248; City of Richmond v. Richmond & D. R. Co.; 21 Grat. (Va.) 604 § 92) ENFORCING COLLECTION 305 provisions of the enabling act.*' So, too, the formalities pre- scribed to perfect the lien must be complied with.** .' When these have been complied with, the lien becomes fixed in favor of the city, and is not impaired by official miscon- duct or defective performance in the work of improvement.*" The city usually provides in its contract for improvement that the contractor shall receive these liens in compensation for performance of his contract, and they are then subject to en- forcement according as the local law may provide — by the contractor as assignee, or by the city for his use and benefit. In either case the assessment levy must be satisfied, and the owner cannot enjoin the same or recoup for damages result- ing from failure of or defect in the work of improvement after it has been accepted by the duly constituted, authorities.** *8 Inhabitants of Village of.Houstonia v. Grubbs, 80 Mo. App. 433; Hufe V. City of Jacksonville, 39 Fla. 1, 21 Soutb. 776; Rosetta Gravel Paving & Improvement Co. v. JoUiSaint, 51 La. Ann. 804, 25 Soutli. 477; Ardrey v. City of Dallas, 13 Tex. Civ. App. 442, 35 S. W. 726. A levy of a special assessment for the construction of an improve- ment is necessary to the creation of a lien, so that, where no levy has been made by the city council, no lien will be created by certify- ing the expense of the improvement to the council. Hall v. Moore, 3 Neb. (Unof.) 92 N. W. 294. See Cemansky v. Fitch, 121 Iowa, 186, 96 N. W. 754, where it was held that the lien attached at the time that the certificate of the resolution for the improvement was filed by the city clerk with the county auditor as required by statute, though the work had been previously completed. Special assessments do not become liens save as made so by statutory authority. Id. 4* Buckman v. Cuneo, 103 Cal. 62, 36 Pac. 1025; Cans v. City of Philadelphia, 102 Pa. 97; City of Hartford v. Mechanics Savings Bank, 79 Conn. 38, 63 Atl. 658; Cemansky v. Fitch, 121 Iowa, 186, 96 N. W. 754; Hoag v. Ward, 186 Mo. 325, 85 S. W. 391. *5 Dressman v. Farmers' & Traders' Nat. Bank, 100 Ky. 571, 38 S. W. 1052, 36 L. R. A. 121; Makley v. Whitmore, 61 Ohio St. 587, 56 N. B. 461; Adams v.. City of Shelby ville, 154 Ind. 467, 57 N. E. 114, 49 L. R. A. 797, 77 Am. St. Rep. 484; Conlin v. Seaman, 22 Cal. 549; City of Lowell v. Hadley, 8 Mete. (Mass.) 194; Williams v. Holden, 4 Wend. (N. Y.) 227. *6 Sunderland v. Martin, 113 Ind. 411, 15 N. E. 689; City of Hen- derson V. Lambert, 14 Bush (Ky.) 24; McDonald v. Murphree, 45 COOL.MUN.COEP. — 20 306 IMPKOVEMENTS (Ch. 9 Personal Liability The power of the Legislature to declare a local assessment to be a personal charge against the owner as well as a lien upon his property has been strenuously contested in many states, while in others it has been allowed to pass unchallenged. The cases supporting and denying this power are perhaps nearly equal in number; but recent judicial tendency, and probably the majority of seriously contested cases, concur with text-writers in denying the power of the Legislature to make a personal charge out of this character of assessments.*' On the one hand, it is contended that such personal charge is Miss. 705; Douglass v. Town of Harrisville, 9 W: Va. 162, 27 Am. Rep. 548; Inhabitants of Towns of Windsor & Suffield v. Field, 1 Conn. 284; Hovey v. Mayo, 43 Me. 322; Chinn v. Trustees, etc., 32 Ohio St. 238; Vanderbeck v. Mayor, etc., of Jersey City, 29 N. J. Law, 441; City of Peoria v. Kidder, 26 111. 858; Old Colony R. Co. v. Fall River, 147 Mass. 455, 18 N. E. 425; Taylor v. Palmer, 31 Cal. 240; Gage V. Evans, 90 111. 569; Cochran v. Collins, 29 Cal. 129; Heywood V. City of Buffalo, 14 N. Y. 534; Hughes v. Kline, 30 Pa. 230; Strenna v. City Council of Montgomery, 86 Ala. 340, 5 South. 115. Where during the time improvements were being made opposite the owner's property he knew the work was being done and took no steps to prevent the same and did not object thereto, he was estopped from questioning his liability for a portion of the expense assessed against the property. Nowlen v. Benton Harbor, 134 Mich. 401, 96 N. W. 450. *7 City of Seattle v. Yesler, 1 Wash. T. 571; Meyer v. City of Cov- ington, 103 Ky. 546, 45 S. W. 769; Heman Const. Co. v. Loevy, 179 Mo. 455, 78 S. W. 613; City of Omaha v. State, 69 Neb. 29, 94 N. W. 979; Town of Macon v. Patty, 57 Miss. 378, 34 Am. Rep. -451; Man- ning V. Den, 90 Cal. 610, 27 Pac. 435; Green v. Ward, 82 Va. 324; CITY OF RALEIGH v., PEACE, 110 N. C. 32, 14 S. E. 521, 17 L. B. A. 330, Cooley, Cas. Mun. Corp. 218; Broadway Baptist Church v. McAfee, 8 Bush (Ky.) 508, 8 Am. Rep. 480; Craw v. VUlage of Tolo- no, 96 111. 255, 36 Am. Rep. 143; City of Burlington v. Quick, 47 Iowa, 222; Higglns v. Ausmuss, 77 Mo. 351. Contra: Clemens v. Mayor, etc., of Baltimore, 16 Md. 208 ; Bennett v. City of Buffalo, 17 N. Y. 383; Hazzard v. Heacock, 39 Ind. 172; City of Lowell v. French, 6 Cush. (Mass.) 223; City of New Orleans v. Wire, 20 La. Ann. 500; Bonsall v. Mayor, etc., of Town of Lebanon, 19 Ohio, 419; Lovell v. City of St. Paul, 10 Minn. 290 (Gil. 229). § 92) ENFOKCING COLLECTION 307 opposed to the definition of a "local assessment," and that the municipality may always protect itself in any proper im- provement by purchasing the property for its assessment;*' to which it has been replied that "it is not land the govern- ment needs-; it is money. The tax is assessed in money, to be paid by the owner of the money." *" In an Alaska case it was held that abutting property owners who had petitioned the city for a specific street improvement, and had seen the improvement made in accordance with their petition in front of their property, were liable to the municipality for the cost of the same in an action of assumpsit upon an implied con- tract for materials furnished and work and labor done.'"' 4 8 Elliott, Roads & S. § 400. 4 Brown, J., in Litchfield v. McComber, 42 Barb. (N. Y.) 288. 6 Town of Nome v. Lang, 1 Alaska, 593. 308 POLICE POWERS AND REGULATIONS (Ch. 10 CHAPTER X POLICE POWERS AND REGULATIONS 93. Essential to a Municipality. 94. Delegation. 95. Estent and Limitation of Power. 96. Exercise of Power. 97. Double Police Power. 98. Peace and Order. 99. Sanitation. 100. Safety.. 101. Comfort. 102. Occupations and Amusements. 103. Markets. 104. Violation and Enforcement ESSENTIAL TO A MUNICIPALITY 93. The police power, inherent in the state as a paramount and inalienable attribute of sovereignty, is essen- tial to a municipality as a public corporation. The 'English conception of the police power is thus given by Blackstone: "The due regulation and domestic rule of the kingdom whereby the individuals of the state, like the members of a well-governed family, are bound to conform their general behavior to the rules of propriety, good neigh- borhood, and good manners, and to be decent, industrious, and inoffensive in their respective stations." ^ As a paramount sovereign power, its lineage may be traced to the ancient max- im, "Salus populi est suprema lex." It is the expression of that instinct of self-preservation inherent in every animate creature, and attributed as essential to all nations, states, and corporations, whether public or private. It is the inherent faculty and function of life itself; and no person, natural or artificial, no state or corporation, to which this right and pow- 14 Bl. Comm. 162. ;§ 93) ESSENTIAL TO A MUNICIPALITY 309 cr is denied, has any real life, and its bare existence will be ephemeral, barren, and useless. It is an adaptation to public use of that ancient Latin maxim, "Sic utere tuo ut alienum non Isedas," and not only requires from the owner of property due respect and consideration for his neighbor's rights, but in case of emergency warrants the destruction of property with- out compensation to an owner, who is wholly without fault. This extraordinary and dangerous, power is not of constitu- tional origin or grant.^ It is institutional and inherent in gov- ernment ; and, as wisely remarked by Chief Justice Shaw, "it is much easier to perceive and realize the existence and source of this power than to mark its boundaries or prescribe limits to its exercise." ^ iMany attempts have been made to define the police power, but never with entire success.^ It is always ■easier to determine whether a particular case comes within the general scope of the power than to give an abstract definition of the power itself, which will be accurate.i There are constitutional limitations upon it," but they are not always of easy application; and, since it is essentially a ■discretionary power, its chief limitation has been found in that •common reason of enlightened judicial tribunals which was ■declared by Lord Coke to be the "very life of the common law." * When exercised by due process of law, as in the abatement of nuisances through civil or criminal proceeding, this power is usually found to be wholesome and beneficial. 2 Harmon v. City of Chicago, 110 111. 400, 51 Am. Rep. 698 ; Taylor V. Nashville & C. K. Co., 6 Cold. (Tenn.) 646, 98 Am. Dec. 474; Vil- lage of Carthage v. Frederick, 122 N. Y. 273, 25 N. B. 480, 10 U R. A. 178, 19 Am. St. Rep. 490. 8 Slaughter House Cases, 16 Wall. (U. S.) 36, 21 L. Ed. 394 ; Com- monwealth V. Alger, 7 Cush. (Mass.) 53; Thbrpe v. Rutland & B. R. Co., 27 Vt. 140, 62 Am. Dec. 625. Cf. Cooley, Const. Lim. (6th Ed.) 704. * Stone V. Mississippi, 101 U. S. 814, 25 L. Ed. 1079. B A police regulation operating unreasonably beyond the occasions of the enactment is not invalid because it may afCect incidentally the -exercise of some right guaranteed by the Constitution. Anderson v. State, 69 Neb. 686, 9Q N. W. 149, 5 Ann. Cas. 421. 6 Co. Litt. 97, 183. 310 POLICE POWERS AND REGULATIONS (Ch. 10 Its summary exercise is always perilous to private right, and often cruelly unjust; as when in emergency, apparent or real, the property of one is sacrificed for the protection of others, or one is deprived of his personal liberty for the supposed safety of the many. DELEGATION 94. The police power may be delegated by the state to a municipal corporation as a public function to be exercised within proper limits for all appropriate municipal purposes. Delegation by the State As we have heretofore seen,'' the delegation of legislative power to a municipality, after much contention, has been established as constitutional by repeated adjudication. No stronger case can be made against this than in the matter of the police power. This is the paramount power in the state. It is supremely sovereign in its nature, involving discretion in its exercise, and often consequent deprivation and destruc- tion. But even this great power has been so long exercised by municipal corporations, has been found so essential to the public welfare, and its delegation has been so often sustained by judicial decision, as to be estabHshed beyond question.* The extent of its exercise is always within the legislative con- T Ante, § 49. 8 People V. Pierce, 85 App. Div. 125, 83 N. Y. Supp. 79; CITY OF CRAWFORDSVILLE v. BKADEN, 130 Ind. 149, 28 N. E. 849, 14 L. R. A. 268, 30 Am. St. Rep. 214, Oooley, Cas. Mun. Corp. 100; City of Burlingame v. Thompson, 74 Kan. 393, 86 Pac. 449 ; 1 Dill. Mun. Corp. (Sth Ed.) § 301, 2 Id. § 573; Elliott, Mun. Corp. § 89; Tied. Mud. Corp. §§ 116, 147 ; 2 Beach, Pub. Corp. §§ 249, 582. While the Legislature usually delegates to local authorities the regulation and control of the public rights in the streets, it may at any time resume such authority and exercise as it deems best. Ne^v England Telephone & Telegraph Co. v. Boston Terminal Co., 182 Mass. 397, 65 N. E. 835 ; Boston Electric Light Co. v. Boston Terminal Co., 182 Mass. 397, 65 N. E. 835. § 94) DELEGATION 311 trol. The police power delegated may be total or partial, or it may be entirely withheld by the Legislature irom the mu- nicipality. It has been decided, however, in some cases that a certain measure of police power is one of the ijiherent oi^ essential powers of a municipality, for which no legislative grant is necessary,' being, as we have seen in the last section, an essential attribute of all life, corporate and individual. It is usual for the charter to contain an express grant of police powers, or the same may be easily implied from the power granted to pass ordinances regulating conduct, commerce, business, and general welfare in the municipality. Delegation by Municipality The power thus granted, being peculiarly governmental, is one which the municipality must exercise for the public wel- fare, and which it may not either dir-ectly or indirectly abridge or alienate.^" It has accordingly been held that a city coun- cil cannot bind itself nor its successors by contract to a course of conduct or of municipal inaction derogatory to the police power delegated by the state to the municipahty.^^ 9 Vionet v. First Municipality, 4 La. Ann. 42 ; Gundling v. City of Chicago, 176 111. 340, 52 N. E. 44, 48 L,. R. A. 230. The Legislature may invest municipal corporations with the po- lice power of the state, in whole or in part, in the absence of consti- tutional prohibition. City of Danville v. Hatcher, 101 Va. 523, 44 S. B. 723. 10 State ex rel. McClellan v. Graves, 19 Md. 351, 81 Am. Dec. 639; Petz V. City of Detroit, 95 Mich. 169, 54 N. W. 644 ; City of Lambert- ville V. Applegate, 73 N. J. Law, 110, 62 Atl. 270 ; City of Petersburg V. Petersburg Aqueduct Co., 102 Va. 654, 47 S. E. 848; Kittanning Electric Light, Heat & Power Co. v. Kittanning Borough, 11 Pa. Super. Ct. 31 ; City of McKeesport v. McKeesport & E. Passenger Ry. Co., 2 Pa. Super. Ct. 242 ; Capdevielle v. New Orleans & S. F. R. Co., 110 La. 904, 34 South. 868. A city cannot by contract devest itself of the power to enforce proper police regulations. City of Carbondale v. Wade, 106 111. App. 654. 1 1 Davenport v. Richmond City, 81 Va. 636, 59 Am. Rep. 694 ; State ex rel. City of Duluth v. Northern Pac. R. Co., 98 Minn. 429, 108 N. W. 269, affirmed in 208 U. S. 583, 28 Sup. Ct. 341, 52 L. Ed. 630; Wood V. City of Hinton, 47 W. Va. 645, 35 S. E. 824 ; Davis v. Mayor, 312 POLICE POWERS ^ND REGULATIONS (Ch. Ift EXTENT AND LIMITATION OF POWER 95. Those powers conferred upon a municipal corporation which in their exercise conduce to protect the pub- lic safety and health and promote the comfort* and convenience of the citizens and the general welfare of the municipality manifest the legislative inten- tion in regard to the delegation of the police power to the municipality. Extent of Power The extent to which municipalities may exercise the police: power is not dependent upon the size of the city or village, but upon the charter grant of powers. A small village may thus have as much police power as a large city.^^ The phrase "police powers" has often been used in the charter as express- ing the legislative grant to the municipality. In such case the city may pass reasonable ordinances for the protection of the lives, limbs, health, comfort, and quiet of its citizens ; ^^ and it has been held that such measure of police power as this is inherent in a municipal corporation, as being essential to the performance of its municipal functions as a public agency etc., of City of New York, 14 N. T. 506, 67 Am. Dec. 186 ; Britton v. Mayor, etc., of New York, 21 How. Prao. (N. Y.) 251 ; Mayor, etc., of City of New York y. Britton, 12 Abb. Prac. (N. Y.) 367; Goszler v. Georgetown, 6 Wheat. (U. S.) 593, 5 L. Ed. 339. 12 City of Owensboro v. Sparks, 99 Ky. 351, 36 S. "W. 4; Stetson V. Kempton, 13 Mass. 272, 7 Am. Dec. 145. IS The police power of a city extends to the regulation of water rates. City of Knoxville v. Knoxville Water Co., 107 Tenn. 647, 64 S. W. 1075, 61 L. E. A. 888. A city may have a building demolished as unsafe. O'Rourke v. City of New Orleans, 106 La. 313, 30 South. 837. The charter of the city of Chicago gives the city power to limit the fare to be charged by street railways, and it was held in Chica- go Union Traction Co. v. Chicago, 199 111. 484, 65 N. E. 451, 59 L. K. A. 631, that, as a necessary incident to such power, it could enact ordinances requiring street railway companies to furnish transfer tickets entitling passengers to ride on a connecting line of the same company without the payment of an additional fare. § 95) EXTENT AND LIMITATION OF POWER 313 of the commonwealth.^* Usually there is found in the char- ter separate mention of the various subjects over which police power may be exercised, and over some of them the municipal ■control given may be only partial or imperfect. In such case the maxim, "Expressio unius est exclusio alterius," is often applied, and under a general grant of police power the munici- pality has been limited to the subjects specially mentioned, or at most to those and such others as absolutely require the ex- ercise of this power for the welfare of the community.^"* It is, however, generally recognized that under a general ■ grant of police powers, or under the generar welfare clause, -municipal corporations may by appropriate regulations adopt such measures as may be necessary and reasonable to preserve peace and order, the health, safety, and comfort of their citi- zens, and control and regulate occupations, amusements, etc.^^ Limitation of Power The police power of a state is not absolute, and its exercise is subject to review by the courts. ^^ Neither the legislature nor a municipality can, under the guise of police regulation, arbitrarily .invade personal or property rights; and when I* Judy V. Lashley, 50 W. Va. 628, 41 S. E. 197, 57 L. R. A. 413. IB Stetson V. Kempton, 13 Mass. 272, 7 Am. Dec. 145; Carey t. Washington, 5 Cranch, C. O. 13, Fed. Gas.. No. 2,404. IB 3 McQuillan, Mun. Corp. § 895. And see City of Helena v. Kent, 32 Mont. 279, SO Pac. 258, 4 Ann. Cas. 235 ; Crum v. Bray, 121 Ga. 709, 49 S. E. 686, 1 Ann. Cas. 991 ; Village of Fairmont v. Meyer, S3 Minn. 456, 86 N. W. 457 ; Commonwealth v. Cutter, 156 Mass. 52, 29 N. E. 1146; City of Passaic v. Paterson Bill Posting, Advertising & Sign Painting Co., 71 N. J. Law, 75, 58 Atl. 343. 17 Moeschen v. Tenement House Dept. of City of New York, 203 U. S. 583, 27 Sup. Ct 781, 51 L. Ed. 328 ; In re Smith, 143 Cal. 368, 77 Pac. 180; Price v. People, 193 111. 114, 61 N. E. 844, 55 L. R. A. 588, 86 Am. St. Rep. 306. Unless the court can see that a given police regulation has no just relation to the object which it purports to carry out, and no reason- able tendency to protect the public health, safety, comfort, or morals, the decision of the Legislature as to necessity, or reasonableness is conclusive. Odd Fellows' Cemetery Ass'n v. City and County of San Francisco, 140 Cal. 226, 73 Pac. 987. 314 POLICE POWERS AND REGULATIONS (Ch. 10 such regulations are called in question the test sho'Uld be whether they have some relation to the public welfare, and whether such is in fact the end sought to be attained. If not, they should be declared invalid as exceeding the legislative power.^* If, however, the regulations are within the power, the courts have nothing to do with the wisdom, policy, or ex- pediency of the law ; the power to make it necessarily carry- ing with it the power to judge of its necessity, expediency, and justice, and primarily, at least, of the reasonableness of the means used to accomplish the end sought.^' Though it is essential that reasonableness should character- ize all exercise of the police power, both as to the subjects to be regulated and the character of the regulation,^" fair doubts as to the reasonableness of a regulation shojild in all cases be resolved in favor of the legislative authority, whenever it shall have been asserted. ^^ Same — Territorial Limitations The corporation boundaries usually mark the limit for the exercise of the police power by the municipality ; ^^ but in . IS COOMBS V. MacDONALD, 43 Neb. 632, 62 N. W. 41, CoOley, Gas. Mun. Corp. 231 ; California Reduction Co. v. Sanitary Reduction Works of San Francisco, 126 Fed. 29, 61 C. C. A. 91, affirmed in 199 U. S. 306, 26 Sup. Ct. 100, 50 L. Ed. 204; Her v. Ross, 64 Neb. 710, 90 N. W. 869, 57 L. R. A. 895, 97 Am. St. Rep. 676 ; Hopper v. Stack, 69 N. J. Law, 562, 56 Atl. 1 ; People ex rel. Tyroler v. Warden of City Prison of New York, 157 N. Y. 116, 51 N. E. 1006, 43 L. R. A. 264, 68 Am. St. Rep. 763 ; Young v. Commonwealth, 101 Va. 853, 45 S. E. 327. 1 9 California Reduction Co. v. Sanitary Reduction Works of San Francisco, 126 Fed. 29, 61 C. O. A. 91, affirmed in 199 U. S. 306, 26 Sup. Ct. 100, 50 L. Ed. 204. 2 State ex rel. Milwaukee Medical College v. Chittenden, 127 Wis. 468, 107 N. W. 500; City of Richmond v. Southern Bell Telephone & Telegraph Co., 85 Fed. 19, 28 C. C. A. 659 ; CITY OF CHICAGO V. GUNNING SYSTEM, 214 111. 628, 73 N. E. 1035, 70 L. R. A. 230, Cooley, Cas. Mun. Corp. 129; City of Lamar v. Weidman, 57 Mo. App. 507. 21 State ex rel. Milwaukee Medical College v. Chittenden, 127 Wis. 468, 107 N. W. 500; City of Madisonville, for use of Commonwealth, V. Price, 123 Ky. 163, 94 S. W. 32, 13 Ann. Cas. 489. 22 Gass V. Corporation of Greeneville, 36 Tenn. (4 Sneed) 62. § 95) EXTENT AND LIMITATION OF POWEB 315 many instances, for the preservation of the public health es- pecially, the municipality is granted police power beyond its boundaries.^^ Thus, it has been held that the grant of power to acquire territory for a water supply beyond the limits of the municipality is within the competency of the Legislature,^* and that the municipality may exercise police power in the protection of the territory thus acquired to insure cleanliness, and prevent any business and conduct likely to corrupt the fountain of water supply for the city.^° So, likewise, to ac- quire outside territory for sewerage purposes, and to exercise police power over the same ; ^' also to estabHsh quai'antine be- yond the municipal boundaries and thus protect the citizens from epidemic of any contagious or infectious disease; ^' also to locate and regulate houses of detention and hospitals for infectious and contagious diseases beyond the city limits.^* 2 3 Chicago Packing & Provision Co. v. City of Cliicago, 88 111. 221, 30 Am. Kep. 545. 2* City of Coldwater v. Tucl^er, 36 Mich. 474, 24 Am. Eep. 601; Burden v. Stein, 27 Ala. 104, 62 Am. Dec. 758 ; Mayor, etc., of City of New York v. Bailey, 2 Denio (N. Y.) 433; Mayor, etc., of City of Rome V. Cabot, 28 Ga. 50; Martin v. Gleason, 139 Mass. 183, 29 N. E. 664 ; People ex rel. Green v. McClintock, 45 Cal. 11. But a municipality which buys a piece of land on a private stream, outside the corporate limits, does not thereby acquire the right to appropriate the water of the stream. Sparks Mfg. Co. v. Town of Newton, 60 N. J. Eq. 399, 45 Atl. 596 ; IngersoU v. Town of Newton, 60 N. J. Eq. 399, 45 Atl. 596. 2 5 Dunham V. City of New Britain, 55 Conn. 378, 11 Atl. 354; Peo- ple V. Borda, 105 Cal. 636, -38 Pac. 1110 ; City of Coldwater v. Tucker, supra. 2 6 City of Coldwater v. Tucker, 36 Mich. 474, 24 Am. Eep. 601. 2 7 Harrison v. Mayor, etc., of City of Baltimore, IGill (Md.) 264; City of Anderson v. O'Conner, 98 Ind. 168 ; Thomas v. Town of Ma- son, 39 W. Va. 526, 20 S. E. 580, 26 L>. R. A. 727; Hurst v. Warner, 102 Mich. 238, 60 N. W. 440, 26 L. R. A. 484, 47 Am. St. Kep. 525. 2 8 Aull V. City of Lexington, 18 Mo. 401; Hutton v. City of Cam- den, 39 N. J. Law, 122, 23 Am. Rep. 203 ; City of Anderson v. O'Con- ner, 98 Ind. 168; Hazen v. Strong, 2 Vt 427. 316 POLICE POWBHS AND REGULATIONS (Ch. 10' EXERCISE OF POWER 96. The police power delegated to the municipality may be exercised either in the ordinary or in a summary manner. The ordinary method of exercise of the police power is by the enactment of ordinances and their enforcement by due process of law. Ordinances passed in the exercise of the po- lice power must possess the requisites of valid ordinances here- tofore enumerated.'^' As already pointed out, such ordinances must be reasonable.^" They must, too, be definite and cer- tain/^ and must be general and uniform in their operation.'^ The summary method is that permitted to be used only in cases of emergency, when it becomes necessary to destroy in- dividual property, or even take individual life, as the only apparent means of protecting the public and preventing still greater calamity. The municipality may lawfully employ through its police officers just so much force as is necessary to disperse a mob or quell a riot, even to the extent of maim- ing or killing persons engaged in the mob or riot,'* provided such an extreme measure is necessary for the protection of the public ; and in case of great conflagration in a city, which can- not otherwise be stopped, the municipality, through its proper 2 9 See ante, § 51. 3 See ante, § 51, p. 179. 31 Village of Hampton v. Chicago, M. & St. P. Ry. Co., 118 III. App.. 621; State v. Forman, 50 La. Ann. 1022, 24 South. 603; City of St. Louis V. Eegina Flour Mill Co., 141 Mo. 389, 42 S. W. 1148; Board of Health of Borough of Glen Ridge v. Werner, 67 N. J. Law, 103, 50 Atl. 585; State v. Irvin, 126 N. C. 989, 35 S. E. 430. 32 Ex parte Bohen, 115 Cal. 372, 47 Pac. 55, 36 L. R. A. 618; City of Shreveport v. Robinson, 51 La. Ann. 1314, 26 South. 277; State V. Blofson, 86 Minn. 103, 90 N. W. 309 ; Tugman v. City of Chicago, 78 111. 405; City of Shreteport v. Levy, 26 La. Ann. 671, 21 Am. Rep. 553. 3 3 Stewart v. City of New Orleans, 9 La. Ann. 461, 61 Am. Dec. 218; Dargan v. Mayor, etc., of City of Mobile, 31 Ala. 469, 70' Am. Dec. 505. § 96) EXEECISE OF POWEB 317 authorities, may lawfully, and with impunity, tear down or blow up buildings owned by private citizens, in order to arrest the progress of the flames.** License This power is also exercised by requiring municipal license for engaging in certain occupations, not as a means of rev- enue, but for the protection of the public.'" Licenses are often granted by the municipality under state authority for the purpose of raising municipal revenue. When revenue is the j^rpose, then the municipality, within the limit allowed by law, exercises discretion as to the amount of tax to be paid by the licensee. When the license is required, however, in the exercise of a police power, then only such charge therefor may be made as fairly represents the expense incident to the exercise of the power.J? Whether the license is for police or revenue, if not shown in the ordinance requiring it, will ap- pear from the construction of the municipal charter. 3* Baumgartn^r v. Hasty, 100 Ind. 575, 50 Am. Rep. 830 ; Taylor V. Inhabitants of Plymoutli, 49 Mass. (8 Mete.) 462; Conwell v. Em- rie, 2 Ind. 35 ; Fields v. Stokley, 99 Pa. 306, 44 Am. Rep. 109; Correas V. City of San Francisco, 1 Cal. 452; Dunbar v. Alcalde Ayuntamien- to of San Francisco, 1 Oal. 355; Bowditch v. Boston, 101 U. S. 16, 25 L. Ed. 980; Field v. City of Des Moines, 39 Iowa, 575, 28 Am. Rep. 46; Keller v. City of Corpus Christi, 50 Tex. 614, 32 Am. Rep. 613 ; 2 Kent.'flflomm. 339. 3 6 Welch V. Hotchkiss, 39 Conn. 140, 12 Am. Rep. 383; Ft. Smith V. Ayers, 43 Ark. 82 ; Ward v. Washington, 4 OTanch, 0. C. 232, Fed. Cas. No. 17,163 ; Barthet v. City of New Orleans (C. C.) 24 Fed. 563 ; Carroll v. Mayor, etc., of City of Tuskaloosa, 12 Ala. 173. 3 8 Ash V. People, 11 Mich. 347, 83 Am. Dec. 740; Welch v. Hotch- kiss, 39 Conn. 140, 12 Am. Rep. 383 ; City of Boston v.' SchafCer, 9 Pick. (Mass.) 415. An ordinance imposing a license duty upon city cars for revenue purposes only is not an ordinance for police and internal govern- ment Mayor, etc., of City of New York v. Second Ave. R. Co., 32 N. y. 261. See, also, Johnson v. City of Philadelphia, 60 Pa. 445; Hodges V. Mayor, etc., of Town of Nashville, 2 Humph. (Tenn.) 61 (control of theaters). 318 POLICE POWERS AND REGULATIONS (Ch. 10 DOUBLE POLICE POWER 97. The Legislature may confer police power upon a mu- nicipality over subjects within the provisions of ex- isting state laws. The general laws Df the state apply as well to municipal corporations as to outside territory, and there is special neces- sity for the exercise of the police power in urban communi- ties. Jurisdiction to enforce these state laws is often confer- red upon the municipal courts; yet none of these thii^s prevents the state from conferring police power upon munici- palities over the same subject-matter. ^ But it has been held that police power in such cases is not inherent in a municipal corporation ; nor can it be implied, but must be expressly con- ferred.'* Other cases favor the implication of police power in the municipality where the offense does not vitally affect the public interests, but specially concerns the municipal welfare.^' Moreover, as we have heretofore seen,*" a majority of the states permit the enforcement of both state and municipal pen- alties for the same unlawful act, as being not only against the peace and dignity of the state, but also against the municipal welfare."^ 3 7 State V. Ludwig, 21 Minn. 202; City of Brooklyn^ Toynbee, 31 Barb. (N. T.) 282; State v. Quong, 8 Idaho, 191, 67 Pac. 491; Town of Rosedale v. Banner, 157 Ind. 390, 61 N. E. 792; Cooley, Const. Lim. (6th Ed.) 239. 38 City of Frankfort v. Aughe, 114 Ind. 77, 15 N. E. 802; Id., 114 Ind. 600, 15 N. E. 804; Ex parte Bourgeois, 60 Miss. 663, 45 Am. Rep. 420; Loeb v. City of Attica, 82 Ind. 175, 42 Am. Rep. 494; Stote V. Langston,- 88 N. C. 692 ; Mayor, etc., of City of Mobile v. Allaire, 14 Ala. 400. SB Town of Bloomfield v. Trimble, 54 Iowa, 399, 6 N. W. 586, 37 Am. Rep. 212; Barter v. Commonwealth, 3 Pen. & W. (Pa.) 253; Davis V. Town of Anita, 73 Iowa, 325, 35 N. W. 244 ; City of Amboy V. Sleeper, 31 111. 499. See Carey v. Washington, 5 Cranch, C. C. 13, Fed. Cas. No. 2,404; City of St. Paul v. Laidler, 2 Minn. 190 (Gil. 159), 72 Am. Dec. 89. *o Ante, § 53. 41 State V. Flint, 63 Conn. 248, 28 Atl. 28; Hankins v. People, 106 § 98) PEACE AND ORDEB 319 PEACE AND ORDER 98. The preservation of the public peace and order is the primary police function of a municipality. Whatever contention may have arisen over municipal police power, the authority to preserve the peace and order of the municipality, to prevent the exercise of unlawful violence, and to compel citizens and sojourners to abstain from riot, rout, and unlawful assembly has never been seriously ques- tioned. It is regarded as an iaiifeCgQj municipal power essen- tial to municipal life; and so, whenever the authority has been mooted, it has been uniformly sustained, in some cases even to the extent of the doubtful power of double punish- ment.*^ For even those decisions which hold such double punishment to be violative of constitutional provision are not based upon the want of municipal authority, but upon the positive prohibition against putting a person twice in jeop- ardy.** Municipal regulations preservative of peace and or- der do .not assume to punish crime against the state, but are confined to small offenses and lighter demonstrations of vio- lence and disorder tending to crime. They are essentially means for the prevention of crime as well as the preservation ■J 111. 628 ; Williams v. City of Warsaw, 60 Ind. 457 ; Rogers v. Jones, 1 Wend. (N. T.) 261, 19 Am. Dec. 493 ; Greenwood v. State, 6 Baxt. (Tenn.) 567, 32 Am. Eep. 539; City of St. Louis v. Schoenbusch, 95 Mo. 618, 8 S. W. 791; People v. Bay City, 36 Mich. 186; City of Leba- non V. Gordon, 99 Mo. App. 277, 73 S. W. 222 ; State v. Muir, 86 Mo. App. 642 ; Id., 164 Mo. 610, 65 S. W. 285. See Taylor v. Sandersville, 118 Ga. 63, 44 S. E. 845. 4 2 City of Carlisle v. Hecldnger, 103 Ky. 381, 45 S. W. 358; City of Talladega v. Fitzpatrick, 133 Ala. 613, 32 South. 252 ; Bowles v. Dis- trict of Columbia, 22 App. D. C. 321; Kansas City v. Hallett, 59 Mo. App. 160; cases supra, note 41. But see Ex parte Cross, 44 Te-x. Cr. K. 376, 71 S. W. 289. 43 Ex parte Bourgeois, 60 Miss. 663, 45 Am. Rep. 420; State t. Keith, 94 N. C. 933 ; Moran v. City of Atlanta, 102 Ga. 840, 30 S. E. 298 ; People v. Hanrahan, 75 Mich. 611, 42 N. W. 1124, 4 L. R. A. 751. 320 POLICE POWBES AND REGULATIONS (Cll. 10 of peace and order,** and are therefore favored by the courts as wise provisions for increasing civilization. Such regula- tions are indispensable tq municipalities in those states which, as a measure of public policy, declare public corporations re- sponsible for the public peace and preservation of private property, and make them absolutely liable for damages done by a mob within the corporate boundaries-^J* ^ SANITATION 99. The preservation of the health of the population is uni- formly recognized as a most important municipal function ; and the power to adopt and enforce san- itary regulations appropriate to this end is inher- ent in a municipality. Congested populations tend to breed disease as well as dis- order, and since health as well as order is an essential condi- tion of good living, and one of the primary purposes of ** Jefferson City v. Courtmire, 9 Mo. 692 ; Vason v. City of Augus- ta, 38 Ga. 542 ; Town of WasMngton v. Hammond, 76 N. C. 33 ; City of New Orleans v. Miller, 7 La. Ann. 651. A charter right of control .over highways, streets, alleys, and pub- lic grounds authorizes an ordinance forbidding the making of any public address in a public place without first obtaining permission from the mayor. Love v. Judge of Recorder's Court of Detroit, 128 Mich. 545, 87 N. W. 785, 55 L. B: A. 618. See Lincoln v. City of Bos- ton, 148 Mass. 578, 20 N. E. 329, 3 L. R. A. 257, 12 Am. St. Rep. 601; CITY OF CHARITON v. SIMMONS, 87 Iowa, 226, 54 N. W. 146, Cooley, Cas. Mun. Corp. 232; Brooklyn Park Com'rs v. Armstrong, 45 N. Y. 234, 6 Am. Rep. 70; Minneapolis & St. L. R. Co. v. Beckwith, 129 U. S. 26, 9 Sup. Ct. 207, 32 L. Ed. 585 ; City of Wilkes-Barre v. Garebed, 9 Kulp (Pa.) 273; City of Grand Rapids v. Newton, 111 Mich. 48, 69 N. W. 84, 35 L. R. A. 226, 66 Am. St. Rep. 387. 40 Darlington v. Mayor, etc., of City of New York, 31 N. Y. 164, 88 Am. Dee. 248; Campbell's Adm'x v. City Council of Montgom- ery, 53 Ala. 527, 25 Am. Rep. 656. Municipalities are liable for what- ever damages may be caused by mobs or riotous assemblages within their respective limits. Street v. City of New Orleans, 32 La. Ann. 577. But this is not so at common law. Mayor, etc., of Balti- more V. Poultney, 25 Md. 107; Prather v. City of Lexington, 13 B. Mon. (Ky.) 559, 56 Am. Dec. 585. § 99) SANITATION 321 municipal incorporation, sanitary powers may not only be ex- pressly conferred by the charter, or implied therefrom, but they have been judicially declared to be inherent in a mu- nicipality as a necessary attribute thereof,** and have been exercised in ways innumerable. These powers are favored in American courts, and it has been accordingly held that, since a supply of wholesome water is necessary to the comfort and well-being of a city,*' a municipal contract for the boring of an artesian well is an exercise of the police power. And so, likewise, the city may make such regulations as will insure pure milk,*»? or prevent the spread of a deadly disease in a fruit-producing tree.*" So, also, it may regulate the cultiva- tion of crops, such as rice, within the corporate limits,'" the cleaning and care of sinks and cesspools,"^ burial of the d^ad,"^ and the location and operation of slaughter houses."' *8 Appeal of Borough of Butler (Pa.) 1 Atl. 604; Town of Greens- boro V. Ehrenreich, 80 Ala. 579, 2 South. 725, 60 Am. Rep. 130 ; Gund- ling V. City of Chicago, 176 111. 340, 52 N. E. 44, 48 L. R. A. 280 ; Manning v. Bruce, 186 Mass. 282, 71 N. E. 537; Monroe v. City of Lawrence, 44 Kan. 607, 24 Pac. 1113, 10 L. R. A. 520. *7 Kennedy v. Phelps, 10 La. Ann. 227 ; Town of Suffleld v. Hatha- way, 44 Conn. 521, 26 Am. Rep. 483 ; Smith v. City of Nashville, 88 Tenn. 464, 12 S. W. 924, 7 L. H. A. 469. *8 State V. Dupaquier, 46 La. Ann. 577, 15 South. 502, 26 L. R. A. 162, 49 Am. St. Rep. 334 ; People ex rel. Lieberman v. Vandecarr, 81 App. Div. 128, 80 N. Y. Supp. 1108, Id., 1,75 N. Y. 440, 67 N. E. 913, 108 Am. St. Rep. 781. *9 Bissell V. Davison, 65 Conn. 183, 32 Atl. 348, 29 L. R. A. 251. Cf. Powell V. Pennsylvania, 127 U. S. 678, 8 Sup. Ct 992, 1257, 32 L. Ed. 253. so Town Council of Summerville v. Pressley, 33 S. C. 56, 11 S. E. 545, 8 L. R. A. 854, 26 Am. St Rep. 659; Green v. Mayor, etc., of City of Savannah, 6 Ga. 1. 01 Commonwealth v. Cutter, 156 Mass. 52, 29 N. E.'ll46; Nlcoulin V. Lowery, 49 N. J. Law, 391, 8 Atl. 513. «2 Graves v. City of Bloomington, 17 111. App. 476; City of Austin V. Austin City Cemetery Association, 87 Tex. 330, 28 S. W. 528, 47 Am. St. Rep. 114; Coates v. New York City, 7 Cow. (N. Y.) 586; In re Bohen, 115 Cal. 372, 47 Pac. 55, 36 L. R. A. 618. 53 Ex parte Heilbron, 65 Cal. 609, 4 Pac. 648; Belling v. aty of EvansviUe, 144 Ind. 644, 42 N. E. 621, 35 L. R. A. 272; Huesing v. COOL.MUN.COEP. — 21 322 POLICE POWEES AND REGULATIONS (Ch. 10 It is competent also for a city to establish quarantine regula- tions,^* pesthouses, and places of detention, ^° and to exclude, remove, or detain persons affected with, or who have been exposed to, contagious or infectious diseases. "^^ It may reg- ulate also the removal of dead animals and garbage,^^ and compel citizens to prepare the same for removal at minimum expense ; °® and generally may suppress nuisance to the public health.^* City of Rock Island, 128 111. 465, 21 N. E. 558, 15 Am. St. Eep. 129; Inhabitants of Watertown v. Mayo, 109 Msfss. 315, 12 Am. Kep. 694. 5 4 Marbham v. Brown, 37 Ga. 277, 92 Am. Dec. 73; Train v. Bos- ton Disinfecting Co., 144 Mass. 523, 11 N. E. 929, 59 Am. Rep. 113; Hannibal & St. J. R. Co. v. Husen, 95 U. S. 465, 24 L. Ed. 527. 5 5 Elliott V. Kalkaska. Supervisors, 58 Mich. 452, 25 N. W. 461, 55 Am. Rep. 706 ; City of Clinton v. Clinton Co., 61 Iowa, 205, 16 N. W. 87. 56 Harrison v. Mayor, etc., of City of Baltimore, 1 Gill (Md.) 264; Hurst V. Warner, 102 Mich. 238, 60 N. W. 440, 26 L. B. A. 484, 47 Am. St. Rep. 525; City of Chicago v. Peck, 98 111. App. 434 ; Id., 196 111. 260, 68 N. B. 711; Prazer v. City of Chicago, 186 111. 480, 57 N. E. 1055, 51 L. R. A. 306, 78 Am. St. Rep. 296; City of Anderson v. O'Conner, 98 Ind. 168. 57 Ex parte Casinello, 62 Cal. 538; In re Vandine, 6 Pick. (Mass.) 187, 17 Am. Dec. 351; Her v. Ross, 64 Neb. 710, 90 N. W. 869, 57 L. R. A. 895, 97 Am. St. Rep. 676; Alpers v. City and County of San Francisco (C. C.) 32 Fed. 503; City of Grand Rapids v. De Vries, 123 Jlich. 570, 82 N. W. 269 ; Smiley v. MacDonald, 42 Neb. 5, 60 N. W. 355, 27 L. R. A. 540, 47 Am. St. Rep. 684; Schoen v. City of At- lanta, 97 Ga. 697, 25 S. E. 380, 33 L. R. A. 804 ; Balch v. City of Utica, 42 App. Div. 562, 59 N. Y. Supp. 513. 5 8 City of Grand Rapids v. De Vries, supra; Sanitary Reduction Works of San Francisco v. California Reduction Co. (C. C.) 94 Fed. 693. 5 9 Baker v. City of Boston, 12 Pick: (Mass.) 184, 22 Am. Dec. 421 Hellen v. Noe, 25 N. C. 493; Ferguson v. Qty of Selma, 43 Ala. 398 Harvey v. Dewoody, 18 Ark. 252; Manhattan Mfg. & Fertilizing Co. V. Van Keuren, 23 N. J. Eq. 251; Kennedy v. Phelps, 10 La. Ann. 227; Smith v. Collier, 118 Ga. 306, 45 S. E. 417 ; Municipality No. : V. Wilson, 5 La. Ann. 747 ; Lake v. City of Aberdeen, 57 Miss. 260 Vason V. City of Augusta, 38 Ga. 542; Dunham v. City of New Bri- tain, 55 Conn. 378, 11 Atl. 354. § 99) SANITATION 323 Nuisances It is primarily within the power of a municipality to deter- mine and declare what is a nuisance to health;*" and the courts will not interfere with this discretion except in case of obvious abuse." ^ But whether a given thing is a nuisance is a question of fact, and it is not within the power of a mu- nicipal corporation arbitrarily and without support of reason or fact to declare that which is harmless a nuisance. °^ A corporation cannot make a thing a nuisance by declaring it gQ-6 3 "This would place every house, every business; and all the property in the city at the uncontrolled will of the tempo- rary local authorities." ** The power to regulate does not 8 LAUGEL V. CITY OF BUSHNELL, 197 111. 20, 63 N. E. lOSG. 58 L. R. A. 266, Cooley, Cas. Mun. Corp. 235; Hart v. Mayor, etc., of City of Albany, 9 Wend. (N. Y.) 571, 24 Am. Dec. 165; Harrison v. Mayor, etc., of City of Baltimore, 1 Gill (Md.) 264. 61 Baker v. City of Boston, 12 Pick. (Mass.) 184, 22 Am. Dec. 421; LAUGEL V. CITY OP BUSHNELL, 197 111. 20, 63 N. E. 1086, 58 L. K. A. 266, Cooley, Cas. Mun. Corp. 235. 8 2 Block V. President, etc., of Town of Jacksonville, 36 111. 301; In re Hong Wah (D. C.) 82 Fed. 623 ; City of Evansville v. Miller, 146 Ind. 613, 45 N. E. 1054, 38 L. R. A. 161; State ex rel. City of In- dianapolis V. Indianapolis Union E. Co., 160 Ind. 45, 66 N. E. 163, 60 L. R. A. 831; City of St. Louis v. Regina Flour Mill Co., 141 Mo. 389, 42 S. W. 1148; Nazworthy v. City of Sullivan, 55 111. App. 48; Everett v. City of Council Bluffs, 46 Iowa, 66; Tissot v. Great South- ern Telegraph & Telephone Co., 39 La. Ann. 996, 3 South. 261, 4 Am. St. Rep. 248. 8 3 Ward v. City of Little Rock, 41 Ark. 526, 45 Am. Rep. 46; Har- mon V. City of Chicago, 110 111. 400, 51 Am. Rep. 698; State v. Mott, 61 Md. 297, 48 Am. Rep. 105; Ex parte O'Leary, 65 Miss. 80, 3 South. 144, 7 Am. St. Rep. 640; Poyer t. Village of Des Plaines, 123 111. Ill, 13 N. E. 819, 5 Am. St. Rep. 494. See City of Pittsburg v. W. H. Keech Co., 21 Pa. Super. Ct. 548, where it was held that declar- ing the thing prohibited a public nuisance would be no ground for denying validity to the penal provision of the ordinance. An ordinance which declares that a nuisance which is not a nuisance is unreasonable and void. Munsell v. City of Carthage, 105 111. App. 119;' City of Carthage v. Munsell, 203 111. 474, 67 N. E. 831; City of Carthage v. Duvall, 105 111. App. 123. See, also, Griffin v. City of Gloversville, 67 App. Div. 403, 73 N. Y. Supp. 684. 4 Miller, J., in Yates v. Milwaukee, 10 Wall. (U. S.) 497, 19 L. Ed. 984. 324 POLICE POWERS AND RBGDLATI0N8 (Cll. 10 give power to prohibit; '' and therefore a city may not abso- lutely forbid the sale of meat or secondhand clothing, or other lawful business not in itself necessarily a nuisance."* Ordi- narily, the municipality must resort to the usual process of law to abate a health nuisance; *' but the state may confer upon it the power of summary abatement in case of emergency."* SAFETY 100, The safety of life, limb and property being one of the prime objects of municipal incorporation, all appro- priate regulations tending to promote this object are within the police power delegated to a munici- pality. Health, good order, and safety being prime objects of civ- ilization are the essential conditions of municipal life. It would be vain and useless to have good order and health in a city without security to person and property. Municipal corporations are therefore authorized in the exercise of police power to enact such ordinances and employ such necessary means as will insure safety to the private property as well as the persons of its citizens."* Fire has been recognized as eo State v. Taft, 118 N, C. 1190, 23 S. E. Q'^O, 32 D. R. A. 122, 54 Am. St. Rep. 768. 6 8 Shiras v. Olinger, 50 Iowa, 571, 32 Am. Rep. 138; In re Hong Wall (D. O.) 82 Fed. 623; Pickard v. Collins, 23 Barb. (N. Y.) 44i; Burditt V. Swenson, 17 Tex. 489, 67 Am. Dec. 665 ; Town of Greens- boro V. Ebrenreich, 80 Ala. 579, 2 South. 725, 60 Am. Rep. 130; Town of Crowley v. West, 52 La. Ann. 526, 27 Soutb. 53, 47 L. R. A. 652, 78 Am. St. Rep. 355; Harrison v. Brooks, 20 Ga. 537. 67 Clark V. Mayor, etc., of City of Syracuse, 13 Barb. (N. Y.) 32; City of Ottumwa v. Cbinn, 75 Iowa, 405, 39 N. W. 670; Newark Aqueduct Board v. Passaic, 45 N. J. Eq. 393, 18 Atl. 106. 68 Baumgai-tner v. Hasty, 100 Ind. 575, 50 Am. Rep. 830; Town of Davis v. Davis, 40 W. Va. 464, 21 S. E. 906; Sprigg v. Town of Gar- rett Park, 89 Md. 406, 43 Atl. 813; King v. Davenport, 98 lU. 305, 38 Am. Rep. 89. 68 Commissioners of Easton v. Covey, 74 Md. 262, 22 Atl. 266; City § 100) SAFETY 325 the greatest municipal peril, and measures to prevent the rise and spread of conflagrations are universal. Fire Limits A city may therefore prescribe fire limits, and forbid the erection of wooden buildings therein.'" Most of the cases hold such power to be inherent in the corporation,'^ but some of Passaic v. Paterson Bill Posting, Advertising & Sign Painting Co., 71 N. J. Law, 75, 58 Atl. 343 ; 2 Bae. Abr. 147 ; 2 Kent, Comm. 339. A city has been held to have the right of legal exercise of the police power to require a railroad company to raise its tracks so as to do away with grade crossings. Osburn v. Chicago, 105 111. App. 217. And a city may compel persons owning or having charge of property, in front of which is a sidewalk unsafe by reason of ice or snow, to make the walk safe by removal of the snow, or covering the ice with sand, within a reasonable time. State v. McMahon, 76 Conn. 97, 55 Atl. 591. See, also, Spiegler v. City of Chicago, 216 111. 114, 74 N. E. 718 (right to regulate handling of naphtha, ben- zine, turpentine, coal oil, etc.) ; City of Centralia v. Smith, 103 Mo. App. 438, 77 S. W. 488 (right to prohibit firecrackers) ; People ex rel. Maynard v. Village of Holly, 119 Mich. 637, 78 N. W. 665, 44 L>. R. A. 677, 75 Am. St. Eep. 435 (right to ofCer reward for convic- tion of incendiaries). 7 Knoxville Corp. v. Bird, 12 Lea (Tenn.) 121, 49 Am. Rep. 326; Patterson v. Johnson, 214 111. 481, 73 N. E. 761 ; First Nat Bank of Mt Vernon v. SarUs, 129 Ind. 201, 28 N. E. 434, 13 L. R. A. 481, 28 Am. St. Rep. 185 ; State v. O'Neil, 49 La. Ann. 1171, 22 South. 352 ; City of Troy v. Winters, 4 Thomp. & C. (N. Y.) 256; STATE v. JOHNSON, 114 N. O. 846, 19 S. E. 599, Cooley, Gas. Mun. Corp. 239; Hine v. City of New Haven, 40 Conn. 478 ; State v. O'Neil, 49 La. Ann. 1171, 22 South. 352 ; Wadleigh v. Oilman, 12 Me. 403, 28 Am. Dec. 188; City of Richmond v. Dudley, 129 Ind. 112, 28 N. E. 312, 13 L. R. A. 587, 28 Am. St. Rep. 180 ; Id. (Ind.) 26 N. E. 184 ; Mc- Closkey v. Kreling, 76 Cal. 511, 18 Pac. 433 ; Eureka City v. Wilson, 15 Utah, 67, 48 Pac. 150, 62 Am. St. Rep. 904 ; Ohimene v. Baker, 32 Tex. Civ. App. 520, 75 S. W. 330; City of Roanoke v. Boiling, 101 Va. 182, 43 S. E. 343 ; Ford v. Thralkill, 84 Ga. 169, 10 S. E. 600. 71 Mayor, etc., of City of Monroe v. HoSman, 29 La. Ann. 651, 29 Am. Rep. 345; Klingler v. Bickel, 117 Pa. 326, 11 Atl. 555; Com- monwealth V. Tewksbury, 11 Mete. (Mass.) 55; Eichenlaub v. City of St. Joseph, 113 Mo. 395, 21 S. W. 8, 18 L. R. A. 590; City of Charleston v. Reed, 27 W. Va. 681, 55 Am. Rep. 336 ; Baumgartner v. Hasty, 100 Ind. 575, 50 Am. Rep. 830 ; King v. Davenport, 98 111. 305, 38 Am. Rep. 89; Brady v. Northwestern Ins. Co., 11 Mich. 425 Kaufman v. Stein, 138 Ind. 49, 37 N. E. 333, 46 Am. St. Rep. 368 Clark V. City of South Bend, 85 Ind. 276, 44 Am. Rep. 13. 326 POLICE POWERS AND REGULATIONS (Ch. 10 hold that it must be expressly conferred.''^ A fire-limit ordi- nance will prevent the construction of wooden buildings pre- viously projected and contracted for/^ and it has been held that a wooden building erected - in violation thereof may be summarily removed.^* The decisions with regard to raising or repairing wooden buildings within fire limits are not har- monious; but the weight of authority seems to be that any enlarging or changing of a building br re-erection of one de- stroyed by fire, or removal, whether from without or within the fire limits, is an erection within the meaning of such or- dinance, and is unlawful/' A city may also pass ordinances prescribing the maximum quantity of gunpowder, dynamite, nitroglycerin, hay, excelsior, or other combustible or inflam- mable material which may be stored in one place or kept in ■f 2 City of Keokuk v. Scroggs, 39 Iowa, 447; Pye v. Peterson, 43 Tex. 312, 23 Am. Kep. 608 ; City of Des Moines v. Gilchrist, 67 Iowa, 210, 25 N. W. 136, 56 Am. Rep. 341 ; Pratt v. Borough of Litchfield, 62 Conn. 112, 25 Atl. 461. 73 KnoxviUe Corp. v. Bird, 12 Lea (Tenn.) 121, 49 Am. Rep. 326; City of Salem v. Maynes, 123 Mass. 372. 7* McKibbin v. Town of Ft. Smith, 35 Ark. 352; First Nat. Bank of Mt. Vernon v. Sarlls, 129 Ind. 201, 28 N. E. 434, 13 L. R. A. 481, 28 Am. St. Rep. 185 ; Micks v. Mason, 145 Mich. 212, 108 N. W. 707, 11 L. R. A. (N. S.) 653, 9 Ann. Cas. 291; Mayor, etc., of City of Monroe v. Hoffman, 29 La. Ann. 651, 29 Am. Rep. 345; Klingler v. Bickel, 117 Pa. 326, 11 Atl. 555 ; Hine v. City of New Haiven, 40 Conn. 478. But an owner is entitled to a reasonable time in which to erect the kind of building required by the ordinance. Lemmon v. Town of Guthrie Center, 113 Iowa, 36, 84 N. W. 986, 86 Am. St. Rep. 361. See; also. Griffin v. City of Gloversville, 67 App. Div. 403, 73 N. X. Supp. 684 ; Ward v. City of Murphysboro, 77 111. App. 549. 75 Wadleigh V. Gilman, 12 Me. 403, 28 Am. Dec. 188; Eureka City V. Wilson, 15 Utah, 67, 48 Pac. 150, 62 Am. St. Rep. 904 ; Kauf- man v. Stein, 138 Ind. 49, 37 N. B. 333, 46 Am. St. Rep. 368 ; Brady V. Northwestern Ins. Co., 11 Mich. 425 ; Griffin v. City of GloYersville, supra. As to repairs, see O'Brien v. Louer, 158 Ind. 211, 61 N. B. 1004. Contra, Contas v. Bradford, 206 Pa. 291, 55 Atl. 989; Brown v. Hunn, 27 Conn. 334, 71 Am. Dec. 71; Borough of Stamford v. Stud- well, 60 Conn. 85, 21 Atl. 101. § 100) SAFETY 327 one house in the city.'"' It may also prescribe and enforce the construction of fire escapes on all buildings not strictly pri- vate.''^ Ordinances may also be enacted prescribing safe chimneys, flues, and furnaces,''* and regulating the handling of coals, ashes, and the like; " and, indeed, any other reasonable regulation to prevent and extinguish fires. Fire Apparatus Express authority is usually conferred by charter for the organization of a fire department and the purchase of the necessary fire engines, hose carts,' hook and ladder wagons, and other appropriate apparatus for extinguishing fires and maintaining the department. But it has been held that such power is inherent, or at least may be implied, and that the corporation may lawfully appropriate money for these pur- poses without express authority.*" 7 6 Wright V. Chicago & N. W. Ey. Co., 27 111. App. 200 (petroleutn) ; City Council of Charleston v. Elford, 1 McMul. (S. C.) 234 ; Clark v. City of South Bend, 85 Ind. 276, 44 Am. Kep. 13 ; Davenport v. Rich- mond City, 81 Va. 636, 59 Am. Rep. 694. In Dobbins v. Los Angeles, 139 Cal. 179, 72 Pac. 970, 96 Am. St. Rep. 95, an ordinance making it unlawful to erect or maintain any works for the manufacture of gas within certain limits was held to be a legitimate exercise of the police power of the city.' 7 7 Commonwealth v. Emsley, 5 Pa. Co. Ct. R. 476; City of Seattle V. Hinckley, 40 Wash. 468, 82 Pac. 747, 2 L. R. A. (N. S.) 398 ; Fire Department of New York v. Chapman, 10 Daly (N. Y.) 377; McCul- loch V. Ayer (C. C.) 96 Fed. 178 ; City of New Orleans v. Danneman, 51 La. Ann. 1093, 25 South. 931; Fire Department of City of New York V. Sturtevant, 33 Hun (N. Y.) 407; Schmalzried v. White, 97 Tenn. 37, 36 S. W. 393, 32 L. R. A. 782. See De Ginther v. New Jer- sey Home for the Education and Care of Feeble-Minded Children, 58 N. J. Law, 354, 33 Atl. 968. 7 8 Commissioners of Easton v. Covey, 74 Md. 262, 22 Atl. 266; Hennessy v. City of St. Paul (C. C.) 37 Fed. "565; City Council of Charleston v. Blake, 12 Rich. (S. C.) 66 ; Same v. Palmer, 1 McCord (S. C.) 342. T9 Her V. Ross, 64 Neb. 710, 90 N. W. 869, 57 L. R. A. 8'95, 97 Am. St. Rep. 676; Inhabitants of Winthrop v. New England Chocolate Co., 180 Mass. 464, 62 N. E. 969 ; 1 Dill. Mun. Corp. § 143. 8 Corporation of Bluffton v. Studabaker, 106 Ind. 129, 6 N. E. 1; ■GREEN V. CITY OF CAPE MAY, 41 N. J. Law, 45, Cooley, Cas. Mun. Corp. 99; Allen v. Inhabitants of Taunton, 19 Pick. (Mass.) 485. 328 POLICE POWERS AND REGULATIONS (Ch. 10 Stopping Conflagration The supreme exercise of police power by a municipality for public safety is displayed in razing, in case of emergency, valuable private property to prevent the spread of conflagra- tion.^^ This may be done without incurring any liability whatever to the owner, unless compensation has been provided by statute ; the rule at common law being that the state might destroy, though it could not take private property without com- pensation.'" • Speed Regulations Another source of danger to public safety in a city is rapid locomotion in or across the streets theteof. Municipalities have authority to regulate the movement not only of railroad trains, street cars, omnibuses, hacks, automobiles,'' but also individuals moving on horseback, bicycles, and other vehi- cles,'* and likewise to regulate the movement of water craft 81 Smith V. City of Eochester, 76 N. T. 506; Taylor v. Inhabit- ants of Plymouth, 49 Mass. (8 Mete.) 462 ; City of Salem v. Eastern R. Co., 98 Mass. 431, 96 Am. Dec. 650 ; Dunbar v. City Council of Augusta, 90 Ga. 390, 17 S. E. 907. 8 2 Baumgartner v. Hasty, 100 Ind 575, 50 Am. Rep. 880; White v. City Council of Charleston, 2 Hill (S. C.) 571 ; Bowditch v. Boston, 101 U. S. 16, 25 L. Ed. 980. 83 United States Brewing Co. v. Stoltenberg, 211 111. 531, 71 N. B. 1081 ; City of Chicago v. Banker, 112 111. App. 94 ; COMMON- WEALTH v. CEOWNINSHIELD, 187 Mass. 221, 72 N. E. 963, 68 L. R. A. 245, Oooley, Cas. Mun. Corp. 242; Taylor v. Lake Shore & M. S. R. Co., 45 Mich. 74, 7 N. W. 728, 40 Am. Rep. 457 ; Haas V. Chicago & N. W. Ry. Co., 41 Wis. 44; City of Lake View v. Tate, 130 111. 247, 22 N. E. 791, 6 L. R. A. 268 ; Eichman v. Buchheit, 128 Wis. 385, 107 N. W. 325, 8 Ann. Cas. 435 ; Whitson v. City of Frank- lin, 34 Ind. 392 ; City of Buffalo v. New York, L. E. & W. R. Co., 152 N. Y. 276, 46 N. E. 496. But an ordinance prohibiting driving on the streets at a rate greater than six miles an hour is, as to members of the flre depart- ment, invalid. State v. Sheppard, 64 Minn. 287, 67 N. W. 62, 36 L. R. A. 305; City of Kansas City v. McDonald, 60 Kan. 481, 57 Pac. 123, 45 L. R. A. 429; Kahn v. Eisler, 22 Misc. Rep. 350, 49 N. Y. Supp. 135. 84 Taylor v. Chandler, 9 Heisk. (Tenn.) 349, 24 Am. Rep. 308; § 100) SAFETY 329 in.the waters over which they have jurisdiction." Municipal ordinances have been sustained which restrict the running of trains within corporate limits to four miles an hour,*" require flagmen to be kept at street crossings/^ and those requiring a conductor on each street car,** and many similar ordinances regulating speed and movements within the municipal juris- diction whereby collisions may be avoided and human life and property saved from needless injury or reckless destruction. '^ Dangerous Forces Municipal corporations also exercise the police power in the supervision and regulation of occupations which are es- sentially dangerous in their nature or conduct, and sometimes entirely exclude them from the municipal limits.'" To this class belong those occupations which produce, transmit, or re- quire great power, or expose to special danger,'^ such as steam engines, electric plants, elevators, and the like, over Commonwealth v. Stodder, 2 Cush. (Mass.) 562, 48 Am. Dec. 679; Nealis v. Hayward, 48 Ind. 19; Washington v. Mayor, etc., of City of Nashville, 1 Swan (Tenn.) 177. SB Backus V. Detroit, 49 Mich. 110, 13 N. W. 380, 43 Am. Rep. 447. 86 KNOBLOCH V. CHICAGO, M. & ST. P. RY. CO., 31 Minn. 402, 18 N. W. 106, Cooley, Cas. Mun. Corp. 245. 87 Toledo, W. & W. Ry. Co. v. City of Jacksonville, 67 111. 37, 16 Am. Rep. 611. And to erect safety gates at certain street crossings. Chesapeake & O. Ry. Co. v. Maysville, 69 S. W. 728, 24 Ky. Law Rep. 615. 8 8 South Covington & C. St. Ry. Co. v. Berry, 93 Ky. 43, 18 S. W. 1026, 13 Ky. Law Rep. 943, 15 L. R. A. 604, 40 Am. St. Rep. 161. 89 Commonwealth v. Stodder, 2 Cush. (Mass.) 562, 48 Am. Dec. 679 ; Buffalo & N. F. R. Co. v. City of Buffalo, 5 Hill (N. Y.) 209; Rich- mond, F. & P. R. Co. V. Richmond, 96 U. S. 521, 24 L. Ed. 734 ; Hayes v. Michigan C. R. Co., Ill U. S. 228, 4 Sup. Ct. 369, 28 L. Ed. 410. 90 Cheatham v. Shearon, 1 Swan (Tenn.) -213, 55 Am. Dec. 734; Mayor, etc., of City of New York V. Ordrenan, 12 Johns. (N. Y.) 122. »i Davenport v. Richmond City, 81 Va. 636, 59 Am. Rep. 694; Stanley v. City of Davenport, 54 Iowa, 463, 2 N. W. 1064, 37 Am. Rep. 216. But see Richmond Safety Gate Co. v. Ashbridge (C. C.) 116 Fed. 220. 330 POLICE POWERS AND REGULATIONS (Ch. 10 which the municipaUty usually exercises supervision by in- spection or license.'^ COMFORT 101. The public comfort and convenience is also one of the objects of municipal incorporation, and is pro- tected by the exercise of the police power. This exercise of the police power finds expression in the Blackstone definition that "individuals are bound to conform their general behavior to the rules of propriety, good neigh- borhood, and good manners, and to be decent and inoffensive." Whatever, therefore, causes public discomfort or inconven- ience or immorality may be prevented in the exercise of the police power."' This includes not only conduct and acts recogT nized by the common law as essentially evil — mala in se or mala prohibita — but even things not unlawful, which cause the public hurt, damage, or harm, and thus become nuisances.''* 9 2 City of St. Louis v. Meyrose Lamp Mfg. Co., 139 Mo. 560, 41 S. W. 244, 61 Am. St. Rep. 474. But where the business is subjected to inspection, the cost of the same must not be unreasonable. City of Saginaw v. Swift Electric Light Co., 113 Mich. 660, 72 N. W. 6 ; City of Joplin v. Leckie, 78 Mo. App. 8. See City of Cape May v. Cape May Transportation Co., 64 N. J. Law, 80, 44 Atl. 948. 9 3 Whitmler & Filbrick Co. v. City of Buffalo (C. C.) 118 Fed. 773 (bill board). Imposing a penalty upon a manufacturer for not so constructing the furnaces as to consume the smoke is a proper ex- ercise of the police power. Department of Health of City of New York V. Bbling Brewing Co. (Mun. Ct.) 78 N. Y. Supp. 11 ; City of St. Paul V. Haugbro, 93 Minn. 59, 100 N. W. 470, 66 L. R. A. 441, 106 Am. St. Rep. 427, 2 Ann. Cas. 580. Under an investiture in municipal corporations of power to prevent annoyance within their limits, to abate nuisance, and to enact ordi- nances to carry into effect such power, the enactment of an ordinance prohibiting the keeping of a jackass within its limits, in hearing dis- tance of its populace, and declaring such keeping to be a nuisance, was held to be a valid exercise of the police power. Ex parte Foote, 70 Ark. 12, 65 S. W. 706, 91 Am. St. Rep. 63. 9* Hart V. Mayor, etc., of City of Albany, 9 Wend. (N. Y.) 571, 24 Am. Dec. 165; Collins v. Hatch, 18 Ohio, 523, 51 Am. Dec. 465; Hel- § 101) COMFOET 331 It has accordingly been held 'that a city may prohibit public profanity,"" street preaching,"^ public drunkenness,'^ carrying concealed weapons,"* rock blasting,"" vagrancy,^ cruelty to animals,^ Sabbath breaking,^ destruction of public trees,* steam whistle blowing,'' and the running at large of animals." len V. Noe, 25 N. C. 493; Baker v. City of Boston, 12 Pick. (Ma.ss.) 184, 22 Am. Dec. 421 ; Kennedy v. Phelps, 10 La. Ann. 227 ; City of Dubuque v. Maloney, 9 Iowa, 450, 74 Am. Dec. 358 ; Parker v. Mayor, etc., of City of Macon, 39 Ga. 725, 99 Am. Dec. 486; Ferguson v. City of Selma, 43 Ala. 398. 95 State V. Cainan, 94 N. C. 880 ; State t. Ernhardt, 107 N. C. 789, 12 S. E. 426; Ex parte Delaney, 43 Cal. 478. 8 6 City of Mankato v. Fowler, 32 Minn. 364, 20 N. W. 361; City of Bloomington v. Richardson, 38 111. App. 60; Commonwealth v.' Davis, 140 Mass. 485, 4 N. E. 577. 9 7 Town of Bloomfield v. Trimble, 54 Iowa, 399, 6 N. W. 586, 37 Am. Rep. 212 ; Mayor, etc., of Town of Homer v. Blackburn, 27 La. Ann. 544. Cf. State v. Bruckhauser, 26 Minn. 301, 3 N. W. 695. 98 Ex parte Cheney, 90 Cal. 617, 27 Pac. 436. But in Judy V. Lashley, 50 W. Va. 628, 41 S. E. 197, 57 L. R. A. 413, it was held that the carrying of concealed weapons did not amount to a breach of the peace, and could not be made an offense, and punishable by municipal ordinance, unless expressly authorized by municipal charter. 99 Commonwealth v. Parks, 155 Mass. 531, 30 N. E. 174. 1 City of St. Louis v. Bentz, 11 Mo. 61 ; Byers v. Commonwealth, 42 Pa. 89. 2 City of St. Louis v. Schoenbusch, 95 Mo. 618, 8 S. W. 791 ; Port- er V. Vlnzant, 49 Fla. 213, 38 South. 607, 111 Am. St. Rep. 93. 3 City of Shreveport v. Levy, 26 La. Ann. 671, 21 Am. Rep. 553 ; Van Buren v. Wells, 53 Ark. 368, 14 S. W. 38, 22 Am. St. Rep. 214; Mayor, etc., of City of Nashville v. Linck, 12 Lea (Tenn.) 499; City of Cincinnati v. Rice, 15 Ohio, 225 ; State v. Welch, 36 Conn. 215. 4 State V. Merrill, 37 Me. 329. B 1 Dill. Mun. Corp. § 374, note p. 448. 6 Amyx V. Taber, 23 Cal. 370 ; Roberts v. Ogle, 30 111. 459, 83 Am. Dec. 201; Gibson v. Town of Harrison, 69 Ark. 385, 63 S. W. 999, 54 L. R. A. 268 ; Griggs v. City of Macon, 103 Ga. 602, 30 S. E. 561, 68 Am. St. Rep. 134 ; Comfort v. City of Kosciusko, 88 Miss. 611, 41 South. '268, 9 Ann. Cas. 178; Cochrane v. City of Frostburg, 81 Md. 54, 31 Atl. 703, 27 L. R. A. 728, 48 Am. St. Rep. 479 ; Hellen v. Noe, 25 N. C. 493; City of Chattanooga v. Norman, 92 Tenn. 73, 20 S. W. 417; Atkinson v. Mott, 102 Ind. 431, 26 N. E. 217; Irwin v. Mat- tox, 138 Pa. 466, 21 Atl. 209 ; Mayor, etc., of City of Hagerstown v. Witmer, 86 Md. 293, 37 Atl. 965, 39 L. R. A. 649. 332 POLICE POWEES AND REGULATIONS (Ch. 10 Animals found running at large in a municipality may be im- pounded, and, after due time for redemption and notice to the owner, may be sold,' if not redeemed, unless a different pen- alty is provided, in which case only the penalty prescribed can be enforced.* And so, under authority to impose a fine only, the city cannot pass an ordinance authorizing that vagrant hogs be killed and appropriated by the officer.* A municipal corporation may, in the exercise of police power, require a license for the keeping of dogs ; the same being held' not un- constitutional for inequality of taxation or undue restriction upon the right to own property.^" T Brophy v. Hyatt, 10 Colo. 223, 15 Pac. 299 ; Gossellnk v. Camp- bell; 4 Iowa, 296 ; Crum v. Bray, 121 Ga. 709, 49 S. E. 686, 1 Ann. Cas. 991 ; Gilchrist v. Schmidling, 12 Kan. 263 ; Hellen v. Noe, supra. An ordinance providing that an animal found running at large within the city limits may be impounded and sold, and this though the owner is a nonresident of the city, is a valid exercise of the police power. Jeans v. Morrison, 99 Mo. App. 208, 73 S. W. 235. And it makes no difference whether the animals escape by reason of the owner's negligence or not. Dorton v. Burks, 99 Mo. App. 165, 73 S. W. 239. See, also, Thompson v. Millen, 74 S. W. 288, 24 Ky. Law Rep. 2479; McVey v. Barker, 92 Mo. App. 498; Folmar v. Cur- tis, 86 Ala. 354, 5 South. 678 ; McKee v. McKee, 8 B. Mon. (Ky.) 433 ; Roberts v. Ogle, supra; Homey v. Sloan, 1 Ind. 266; Gilmore v. Holt, 4 Pick. (Mass.) 258 ; Whitfield v. Longest, 28 N. C. 268. 8 Mayor, etc., of City of Cartersville v. Lanham, 67 Ga. 753 ; Bro- phy V. Hyatt, supra. » Donovan v. Mayor, etc., of City of Vicksburg, 29 Miss. 247, 64 Am. Dec. 143; Kennedy v. Sowden, 1 McMul. (S. C.) 328, citing Mc- Rea v. Olain, an unreported case. And the owner of such hogs may be fined, whether he live inside or out of the city limits. Jones v. Duncan, 127 N. C. 118, 37 S. E. 135. 10 Washington v. Lynch, 5 Cranch, 0. C. 498, Fed. Cas. No. 17,231; City of Carthage v. Rhodes, 101 Mo. 175, 14 S. W. 181, 9 L. R. A. 352 ; City of Faribault v. Wilson, 34 Minn. 254, 25 N. W. 449 ; Bldir V. Forehand, 100 Mass. 136, 97 Am. Dec. 82, 1 Am. Rep. 94; State V. City of Topeka, 36 Kan. 76, 12 Pac. 310, 59 Am. Rep. 529 ; Griggs V. City of Macon, 108 Ga. 602, 30 S. E. 561, 68 Am. St. Rep. 134; HiU v. City CouncU of AbbeviUe, 59 S. G. 396, 38 S. E. 11. § 102) OCCUPATIONS AND AMUSEMENTS 333 OCCUPATIONS AND AMUSEMENTS 102. The city possesses no power to prohibit a useful busi- ness or a harmless amusement; but all manner of occupations and amusements are subject to rea- sonable regulation by the state or the municipality exercising the delegated police power. Occupations or amusements which are immoral, illegal, or harmful to the city, such as gambling, liquor selling, and the like, may be entirely prohibited; ^^ but a municipality has nt) authority to interfere with private rights of lawful occupa- tion and amusement beyond necessary regulation. ^^ A city may prohibit the keeping of a house of ill fame,^' or the leas- ing of property for that purpose ; ^* and so, also, for gambling or liquor- selling, if authorized by charter;^" or, if these practices are not forbidden, the city may adopt and enforce stringent regulations for them. It may prohibit the sale of liquors and wines at places of musical or dramatic entertain- ment where females act as waiters,^* and may fix hours for closing and opening saloons,^ ^ and forbid admission of minors 11 Odell V. City of Atlanta, 9T Ga. 670, 25 S. E. 173. 12 Muhlenbrinck v. Long Branch Com'rs, 42 N. J. Law, 364, 36 Am. Eep. 518 ; Dunham v. Trustees of Rochester, 5 Cow. (N. Y.) 462 ; City of Buffalo v. Collins Baking Co., 24 Misc. Rep. 745, 53 N. Y. Supp. 968 ; Ex parte Mirande, 73 Cal. 365, 14 Pac. 888 ; State v. Owen, 50 La. Ann. 1181, 24 South; 187. 18 People V. Miller, 38 Hun (N. Y.) 82; State ex rel. Burton v. Wil- liams, 11 S. C. 288 ; Childress v. Mayor, etc., of City of Nashville, 3 Sneed (Tenn.) 347 ; City of Shreveport v. Roos, 35 La. Ann. 1010. Cf. State V. Clarke, 54 Mo. 17, 14 Am. Rep. 47 L 1* L'Hote V. City of New Orleans, 51 La. Ann. 93, 24 South. 608, 44 L. R. A. 90 ; McAlister v. Clark, 33 Conn. 91 ; Childress v. May- or, etc., of City of Nashville, 3 Sneed (Tenn.) 347, 356. Contra, State v. Webber, 107 N. C. 962, 12 S. E. 598, 22 Am. St. Rep. 920. 15 State V. Grimes, 49 Minn. 443, 52 N. W. 42; Crowley v. Christ-' ensen, 137 U. S. 86, 11 Sup. Ct. 13, 34 L. Ed. 620. 16 Ex parte Hayes, 98 Cal. 555, 33 Pac. 337, 20 L. R. A. 701. IT Smith V. Mayor, etc., of City of Knoxville, 3 Head (Tenn.) 245; Maxwell v. Jonesboro Corporation, 11 Heisk. (Tenn.) 257. 334 POLICE POWERS AND REGULATIONS (Ch. 10 or females;" and in general may enact such ordinances as will tend to prevent such places from degenerating into nui- sances or breeding disorder and crime. ^° License Even where a privilege license may nbt be required as a means of municipal revenue, a city may, under the poUce power, require license for any profession, trade, or business the supervision of which tends to promote municipal health, safety, order, or welfare; ^° and this either because the trade or profession requires a certain degree of skill or training,^ ^ or because it furnishes opportunities for fraud, "^ or because proper municipal police demands record of the persons en- gaged in various occupations.^^ But authority to require li- cense has been declared not to be inherent in the municipal- ity.^* It must be expressly given or readily implied from the charter, or it will not exist in case of ordinary occupa- tion. ^° And the cost of such license must not exceed the rea- ls Oity of Plattsburg v. Trimble, 46 Mo. App. 459; Bergman v. Cleveland, 39 Ohio St. 651. 19 City of Mankato v. Fowler, 32 Minn. 364, 20 N. W. 361. aoNoiju y Mayor, etc., of Town of Franklin, 4 Terg. (Tenn.) 163; State V. Cassidy, 22 Minn. 312, 21 Am. Rep. 765 ; Atlantic City v. Brown, 71 N. J. Law, 81, 58 Atl. 110; City of St. Louis v. Fitz, 53 Mo. 582; Ex parte Mirande, 78 Cal. 365, 14 Pac. 888; Hill v. City Council of Abbeville, 59 S. C. 396, 38 S. E. 11. 21 Simmons v. State, 12 Mo. 268, 49 Am. Dec. 131; Nasbville, C. & St. L. R. Co. v. City of Attalla, 118 Ala. 362, 24 South. 450 ; May- or, etc., of City of Savannah v. Charlton, 36 Ga. 460 ; State v. Hib- bard, 3 Ohio, 63. 22 Ward V. Farwell, 97 111. 593 ; Lothrop v. Stedman, 42 Conn. 583, Fed. Cas. No. 8,519 ; Ash v. People, 11 Mich. 347, 83 Am. Dec. 740 ; City of Boston v. Schaffer, 9 Pick. (Mass.) 415; Temple v. Sum- ner, 51 Miss. 13, 24 Am. Rep. 615 ; Ex parte Ah Toy, 57 Cal. 92. 2 3 Tied. Lim. § 101; Inhabitants of Watertown v. Mayo, 109 Mass. 315, 12 Am. Rep. 694; Blydenburgh v. Miles, 39 Conn. 484 ; Borough of Warren v. Geer, 117 Pa. 207, 11 Atl. 415. 2* State ex rel. Moriarity v. McMahon, 69 Minn. 265, 72 N. W. 79, 38 L. R. A. 675 ; Ex parte Garza, 28 Tex. App. 381, 13 S. W. 779, 19 Am. St. Rep. 845. 25 State V. Itzcovitch. 49 La. Ann. 366, 21 South. 544, 37 L. P.. A. 673, 62 Am. St. Rep. 648. § 102) OCCUPATIONS AND AMDSKMENT3 335 sonable expense of municipal supervision.-' Accordingly, a license charge of $40 per year on hacks has been held unlaw- ful.^^ Ordinances requiring licenses from peddlers,^' plumbers/* auctioneers,^" bakers,^^ draymen,'^ hackmen,^' green grocers,** pawnbrokers,' ' milk dealers,'" billiard sa- loons,'' livery stables," showmen," hucksters,*" lawyers and 26 Ash V. People, ll'jiicli. 347, 83 Am. Dec. 740 ; City of Indianapo lis V. Bieler, 138 Ind. 30, 36 N. E. 857; State v. Cassidy, 22 Minn, 321, 21 Am. Rep. 765. 2 7 City of Jackson v. Newman, 59 Miss. 385, 42 Am. Rep. 367. 28 Town of State Center v. Barenstein, 66 Iowa, 249, 23 N. W. 652 City of South Bend v. Martin, 142 Ind. 31, 41 N. E. 315, 29 U R. A. 531. 29 Wilkie V. City of Chicago, 188 111. 444, 58 N. E. 1004, SO Am. St, Rep. 182. 30 Town of Decorah v. Dunstan, 38 Iowa, 96; Fretwell v. City of Troy, 18 Kan. 271; Wiggins v. City of Chicago, 68 111. 372. 31 PEOPLE V. WAGNER, 86 Mich. 594, 49 N. W. 609, 13 L. R. A. 286, 24 Am. St. Rep. 141, Cooley, Cas. Mun. Corp. 247. 3 2 City of Brooklyn v. Breslin, 57 N. Y. 591; City of Cincinnati V. Bryson, 15 Ohio, 625, 45 Am. Dec. 593. 33 City of St. Louis v. Weitzel, 130 Mo. 600, 31 S. W. 1045 ; Com- monwealth V. Page, 155 Mass. 227, 29 N. E. 512; Haynes v. City of Cape May, 52 N. J. Law, 180, 19 Atl. 176. Hackmen may be required, under police power, to occupy certain designated places at depots. City of Ottawa v. Bodley, 67 Kan. 17S, 72 Pac. 545. See Combs v. Lakewood Tp., 68 N. J. Law, 582, 53 Atl. 697; Atlantic City v. Feretti, 70 N. J. Law, 489, 57 Atl. 259; City of New York v. Reesing, 77 App. Div. 417, 79 N. Y. Supp. 331; Mason V. City of Cumberland, 92 Md. 451, 48 Atl. 136. 34 Frommer v. City of Richmond, 31 Grat. (Va.) 646, 31 Am. Rep. 746. 3 5 Launder v. City of Chicago, 111 111. 291, 53 Am. Rep. 625; Shu- man V. City of Ft. Wayne, 127 Ind. 109, 26 N. E. 560, 11 L. R. A. 378 ; City of St. Paul v. Lytle, 69 Minn. 1, 71 N. W. 703. 36 People V. Mulholland, 82 N. Y. 324, 37 Am. Rep. 568; City of Chicago V. Bartee, 100 111. 57: City of Norfolk v. Flynn, 101 Va. 473, 44 S. E. 717, 62 L. R. A. 771, 99 Am. St. Rep. 918. But see, contra, State v. Tyrrell, 73 Conn. 407, 47 Atl. 686, where an ordinance requiring milk dealers to obtain a municipal license was held invalid, as being in conflict with the General Statutes of the state, and beyond the power of the city council to enact 3 r In re Snell, 58 Vt. 207, 1 Atl. 566. 38 Municipality No. 2 v. Dubois, 10 La. Ann. 56. 3 City of Boston v. SchafCer, 9 Pick. (Mass.) 415. io Frommer v. City of Richmond, 31 Grat. (Va.) 646, 31 Am. Rep. 336 POLICE POWERS AND EBGULATIONS (Ch. 10 doctors,*^ bankers,*'' junk shops," telegraph companies,** nat- ural gas contpanies,*" pharmacists,*" have been held valid un- der the police power. But the courts have repeatedly held such ordinances to be invalid, as unlawful interference with private rights under the pretext of police regulation, when it is apparent that the end sought is not the promotion of the public health, morals, or welfare.*^ The limit of the power is to prevent injury and regulate what is not harmful. A laun- dry may not be declared unlawful,*® but the business may be lawfully confined within certain localities, and restricted to certain hours.*" 746; Dunham v. Trustees of Rochester, 5 Cow. (N. T.) 462; Temple V. Sumner, 51 Miss. 13, 24 Am. Rep. 615; City of Huntington v. Cheesbro, 57 Ind. 74; State v. Smith, 67 Conn. 541, 35 Ati. 506, 52 Am. St. Rep. 301. *i Young V. Thomas, 17 Fla. 169, 35 Am. Rep. 93; City of Girard V. Bissell, 45 Kan. 66, 25 Pac. 232; Mayor, etc., of City of Savannah V. Charlton, 36 Ga. 460; State v. Proudfit, 3 Ohio, 63 ; Ahlrichs v. City of Cullman, 130 Ala. 674, 31 South. 1035; Elliott v. City of Louisville, 101 Ky. 262, 40 S. W. 690 ; State ex rel. Paquet v. Fernan- dez, 49 La. Ann. 764, 21 South. 591. Cf. Garden City v. Abbott, 34 Kan. 283, 8 Pac. 473. *2-0il City V. Oil City Trust Co., 11 Pa. Co. Ct. R. 350. 43 City Council of Charleston v. Goldsmith, 12 Rich. (S. O.) 470. *4 City of AUentown v. Western Union Telegraph Co., 148 Pa. 117, 23 Atl. 1070, 33 Am. St. Rep. 820; Hodges v. Western Union Tele- graph Co., 72 Miss. 910, 18 South. 84, 29 L. R. A. 770; Borough of New Hope v. Western Union Telegraph Co., 16 Pa. Super. Ct. 306; Taylor v. Postal Telegraph & Cable Co., 16 Pa. Super. Ct. 344. 45 Rushville Gas Co. v. City of Rushville, 121 Ind. 212, 23 N. E. 72, 6 L. R. A. 315, 16 Am. St. Rep. 388. 46 People V. Rontey, 51 Hun, 640, 4 N. Y. Supp. 235. 47 Robinson v. Mayor, etc., of Town of Franklin, 1 Humph. (Tenn.) 156, 34 Am. Dec. 625; Bethune v. Hughes, 28 Ga. 560, 73 Am. Dec. 789 ; City of Buffalo v. Linsman, 113 App. Div. 584, 98 N. Y. Supp. 737 ; City of Chicago v. Netcher, 183 111. 104, 55 N. E. 707, 48 L. R. A. 261, 75 Am. St. Rep. 93 ; Caldwell v. City of Alton, 33 111. 416, 75 Am. Dec. 282 ; White v. Kent, 11 Ohio St. 550. 48 Yick Wo V. Hopkins, 118 U. S. 356, 6 Sup. Ct 1064, 30 L. Ed. 220; State v. Taft, 118 N. C. 1190,- 23 S. E. 970, 32 L. R. A. 122, 54 Am. St. Rep. 768. 49 Barbier v. Connolly, 113 U. S. 27, 5 Sup. Ct. 357, 28 L. Ed. 923 ; Soon Hing v. Crowley, 113 U. S. 703, 5 Sup. Ct. 730, 28 L. Ed. 1145. The city may also pass ordinances requiring the inspection of § 102) OCCUPATIONS AND AMUSEMENTS 337 Liquor Selling Municipal restraint upon the subject of liquor selling is now comparatively rare because of the control of this traffic by state and federal layvs. The municipal corporation possesses no inherent power over this traffic, but only the express and implied powers conferred by the charter." Wherever the power of regulation is conferred, the municipality may re- quire a license,'^ may forbid the employment of women in the traffic,"^ may confine sales within reasonable hours °' and within prescribed territorial limits,"* and may regulate the traffic by other wholesome restrictions." ° laundries, and may provide for a reasonable fee to be paid to cover the cost of such inspection. City of New Orleans v. Hop Lee, 104 La. 601, 29 South. 214. BO Loeb V. City of Attica, 82 Ind. 175, 42 Am. Rep. 494; Ex parte Burnett, 30 Ala. 461; Ex parte Campbell, 74 Cal. 20, 15 Pac. 318, 5 Am. St Rep. 418. SI Bancroft v. Dumas, 21 Vt. 456; Thomasson v. State, 15 Ind. 449 ; Goddard v. President, etc., of Town of Jacksonville, 15 111. 588, 60 Am. Dec. 773 ; City of Portland v. Schmidt, 13 Or. 17, 6 Pac. 221 ; Schweitzer v. City of Liberty, 82 Mo. 309 ; Charleston City Council v. Heisembrittel City Council, 2 McMul. (S. C.) 233. 62 Bergman v. Cleveland, 39 Ohio St. 651. BsHedderich v. State, 101 Ind. 564, 1 N. E. 47, 51 Am. Rep. 768; State V. Welch, 36 Conn. 215 ; Morris v. City Council of Rome, 10 Ga. 532; Ex parte Wolf, 14 Neb. 24, 14 N. W. 660. 64 State v. Clark, 28 N. H. 176, 61 Am. Dec. 611 ; People ex rel. Morrison v. Cregier, 138 111. 401, 28 N. E. 812 ; In re WILSON, 32 Minn. 145, 19 N. W. 723, Cooley, Gas. Mun. Corp. 116, 349. 55 Giozza V. Tiernan, 148 U. S. 657, 13 Sup. Ct. 721, 37 L. Ed. 599; Decie v. Brown, 167 Mass. 290, 45 N. E. 765 ; Provo City v. Shurt- liffi, 4 Utah, 15, 5 Pac. 302 ; Metcalf v. State, 76 Ga. 308 ; Ex parte Hayes, 98 Cal. 555, 33 Pac. 337, 20 L. R. A. 701; State v. Hellman, 56 Conn. 190, 14 Atl. 806. COOL.MUN.COEP. — ^22 338 POLICE POWERS AND REGULATIONS (Ch. 10 MARKETS 103. The establishment and regulation of municipal mar- kets is a proper exercise of the police power for the convenience, health, and general welfare of the municipality. A municipal market is a designated place in a town or city, with convenient fixtures for the sale of provisions and articles of daily con- sumption, with proper regulations and officers, where all persons may lawfully be for the purpose of buying or selling. In England the market has been time out of mind an es- sential part of the municipality, generally regarded as a pre- scriptive right or power, with certain customary regulations and privileges. '° In America the establishment and regula- tion of markets is generally granted by charter; and after much contention it has been generally decided that the city may prohibit the sale of fresh meat, vegetables, and other provisions elsewhere than in the public market,'^ upon the ground, as stated in a leading Louisiana case, that "the privi- lege of keeping a private market is subordinate to the right existing in the sovereign to exercise the police power to regu- late the peace and good order of the city, and to provide for and maintain its cleanliness and salubrity.'.' '* In the exer- cise of this power the city may require the payment of a li- 56 2 Bl. Comm. 37 ; Grant, Corp. 166 ; 1 Dill. Mun. Corp. § 380. 6 7 First Municipality v. Cutting, 4 La. Ann. 335; Newson v. City of Galveston, 76 Tex. 559, 13 S. W. 368, 7 L. R. A. 797 ; City of Jack- sonville V. Ledwith, 26 Fla. 163, 7 South. 885, 9 L. R. A. 69, 23 Am. St. Rep. 558; Commonwealth v. Rice, 9 Mete. (Mass.) 253; State v. Smith, 123 Iowa, 654, 96 N. W. 899; Town of Crowley v. Rucker, 107 La. 213, 31 South. 629 ; City of Buffalo v. Hill, 79 App. Div. 402, 79 N. Y. Supp. 449 ; City of Brooklyn v. Breslin, 57 N. T. 591 ; Kins- ley V. City of Chicago, 124 111. 359, 16 N. E. 260 ; Wartman v. City of Philadelphia, 33 Pa. 202. 5 8 City of New Orleans v. StaflEord, 27 La. Ann. 417, 21 Am. Rep. 563. § 104) VIOLATION AND ENFORCEMENT 339 cerise fee for market privileges,'' may fix market hours,'" may prohibit street vending,^ ^ and provide for inspection and weighing of market articles.'^ Market ordinances like those above mentioned have been generally sustained by the courts upon the express view that they are not in restraint of trade, but for the wholesome regulation of it, and in the lawful ex- ercise of the police power."* VIOLATION AND ENFORCEMENT 104. Violations of police regulations are usually punished by a court proceeding in personam for the recov- ery or enforcement of the affixed penalty, but in many cases the police power is enforced in rem in a summary manner. As we have heretofore seen,'* the proceeding for violation of municipal ordinances is variously viewed in the courts of the several states; but all concur that no judgment can be pronounced or penalty inflicted in personam except through some regular judicial proceeding.',? This rule applies to the 5 9 City of Cincinnati v. Buckingliam, 10 Ohio, 257; Blanchard v. Ivers, 40 Fla. 117, 24 South. 66. 60 City of Bowling Green v. Carson, 10 Bush (Ky.) 64. 61 Launder v. City of Chicago, 111 lU. 291, 53 Am. Rep. 625. 62 Taylor v. City of Pine Bluff, 34 Ark. 603 ; Paige v. Fazackerly, 36 Barb. (N. Y.) 392; Pierce v. Kimball, 9 Greenl. (Me.) 54, 23 Am. Dec. 539 ; Turner v. Maryland, 107 U. S. 38, 2 Sup. Ct. 44, 27 L. Ed. 370; Woods v. Armstrong, 54 Ala. 150, 25 Am. Rep. 671; Hoffman V. Mayor, etc., of Jersey City, 34 N. J. Law, 172 ; Wartman v. City of Philadelphia, 33 Pa. 202 ; State v. Smith, 123 Iowa, 654, 96 N. W. 899. Also a municipality may require that coal be weighed on the city scales. Wills v. City of Ft. Smith, 70 Ark. 221, 66 S. W. 922. 63 Natal V. Louisiana, 139 U. S. 621, 11 Sup. Ct. 636, 35 L. Ed. 288 ; Taylor v. City of Pine Bluff, supra ; Collins v. City of Louis- ville, 2 B. Mon. (Ky.) 134; Badkins y. Robinson, 53 Ga. 613; Yates V. City of Milwaukee, 12 Wis. 673. 64 Ante, §§ 52, 53. 65 Cooley, Const. Lim. (6th Ed.) 431 et seq. ; Meaher v. Mayor, etc., of City of Chattanooga, 1 Head (Tenn.) 74; Lanfear v. Mayor, etc., 340 POLICE POWERS AND REGULATIONS (Ch. 10 enforcement of police regulations as well as to other ordi- nances. Trial and conviction without a jury is called by some judges a summary proceeding;"^ but herein the word "summary" is used to describe an extrajudicial enforcement of the police power in a summary manner without legal process. For example, a city council has power to confer upon the board of health authority to demolish a house infected with smallpox as a nuisance dangerous to the public health."' So, also, it has been held that a city may order a wooden house to be torn down which is built within the fire limits in defiance of the ordinance forbidding it;°' and, as we have seen, the municipal corporation, without either statute or ordinance, may cause a private building to be demolished to stop confla- gration.®" So, too, a ferocious dog, or any other animal dam- age feasant, in a municipality, may be killed, if necessary;" also a vagrant dog, unmuzzled, and addicted to biting, though doing no harm at the time, may be summarily killed as a meas- ure of precaution.'^ In some states, too, the police are au- thorized to kill all unlicensed dogs wheresoever found.' ^ of New Orleans, 4 La. 97, 23 Am. Dec. 477; State v. Lockwood, 43 Wis. 403; Town of Brookville v. Gagle, 73 Ind. 117. See, also, Blanchard v. Bristol, 100 Va. 469, 41 S. E. 948. 66 Strong, J., in Byers v. Commonwealth, 42 Pa. 94. 6 7 King V. Davenport, 98 111. 305, 38 Am. Rep. 89; Banmgartner V. Hasty, 100 Ind. 575, 50 Am. Eep. 830; Waters v. Townsend, 65 Ark. 613, 47 S. W. 1054; Theilan v. Porter, 14 Lea (Tenn.) 622, 52 Am. Rep. 173. 68 Pye V. Peterson, 45 Tex. 312, 23 Am. Rep. 608; City of Charles- ton V. Reed, 27 W. Va. 681, 55 Am. Eep. 336; McKibbin v. Town of Ft. Smith, 35 Ark. 352 ; State v. Mayor, etc., of City of Knoxville, 12 Lea (Tenn.) 146, 47 Am. Rep. 331; Eichenlaub v. City of St Joseph, 113 Mo. 395, 21 S. W. 8, 18 L. R. A. 590. 6 9 Ante, § 100. 70 Brent v. Kimball, 60 111. 211, 14 Am. Ret). 35. 71 Woolf V. Chalker, 31 Conn. 121, 81 Am. Dee. 175; Simmonds v. Holmes, 61 Conn. 1, 23 Atl. 702, 15 L. R. A. 253 ; Dodson v. Mock, 20 N. C. 282, 32 Am. Dec. 677; Ranson v. Kitner, 31 111. App. 241; Brown t. Carpenter, 26 Vt. 638, 62 Am. Dec. 603; Walker v. Towle, 156 Ind. 639, 59 N. E. 20, 53 L. R. A. 749. 7 2 Mowery v. Town of Salisbury, 82 N. C. 175; Blair v. Forehand, 100 Mass- 136, 97 Am. Dec. 82, 1 Am. Rep. 94; State y. City of To- % 104) VIOLATION AND ENFOBCEMENT 341 Similar to this is the summary arrest and confinement by the police in the lockup of persons of the drunk and disorderly class, and, as we have seen,^^ the use of force, even to mayhem or death, if necessary, to disperse a mob or quell a riot. peka, 36 Kan. 76, 12 Pac. 310, 59 Am. Eep. 529 ; Julienne v. City of Jackson, 69 Miss. 34, 10 South. 43, 30 Am. St. Rep. 526. 7 3 Ante, § 95; Dargan v. Mayor, etc., of City of Mobile, 31 Ala. 469, 70 Am. Dec. 505 ; Stewart v. City of New Orleans, 9 La. Ann. 461, 61 Am. Dec. 218. But a municipal corporation cannot maintain a suit for a viola- tion of one of the criminal statutes of the state. McMinnville y. -Stroud, i09 Tenn. 569, 72 S. W. 949. 342 STREETS, SEWERS, PARKS, AND BUILDINGS (Ch. 11 CHAPTER XI STREETS, SEWERS, PARKS, AND PUBLIC BUILDINGS 105. Streets. -107. Legislative Control. 108. Dedication and Acceptance. 109. Use of Streets. 110. Abutting Owners. 111. Sewers. 112. Parks. 113. Public Buildings. STREETS 105. "Street" is a generic ternj usually employed to de- scribe any public highway, whether improved or unimproved, lawfully established and opened in a municipality to the public use for travel and traffic. The term "street" in its legal acceptation is a generic term used to designate ways established or opened within a munici- pality for the ordinary purposes of travel, and embraces not only streets commonly so called, but also avenues and alleys.^ It inclades all parts of the way — the roadway, the gutters, and the sidewalks.^ It refers to the public ways, as distinguished from those private ways in a municipality which have not been dedicated to or accepted for public use, but are owned and enjoyed by private persons." A turnpike owned by a private corporation r^lliott, Roads & S. c. 2 ; Cox v. Louisville, N. A. & C. R. Co., 4S Ind. 178 ; Heiple v. City of East Portland, 13 Or. 97, 8 Pac. 907 ; State V. Wilkinson, 2 Vt. 480, 21 Am. Dec. 560 ; Village of Marseilles V. Rowland, 124 111. 551, 16 N. E. -883. 2Taber v. Graf miller, 109 Ind. 206, 9 N. E. 721; City of Kokomo V. Mahan, 100 Ind. 242. 3 City of Quincy v. Jones, 76 111. 231, 20 Am. Rep. 243 ; Henkel V. Detroit, 49 Mich. 249, 13 N. W. 611, 43 Am. Rep. 464 ; Hamilton v. Chicago, B. & Q. R. Co., 124 111. 241, 15 N. E. 854. §§ 106-107) LEGISLATIVE CONTROL 343 is not, therefore, properly called a street.* The term is used to describe any public road inside municipal boundaries, and does not properly embrace rural or suburban roads. ^ When- ever duly established and opened, it becomes a street, whether it is worked upon and improved, or left in its natural state. It is dedicated to the public and accepted and held by it for the public use of trade and travel, and may not be perverted to other uses.* LEGISLATIVE CONTROL 106. The supreme power over streets, as over public high- ways, is inherent in the state, for the public use. 107. The legislative control over streets may be, and usu- ally is, delegated to the municipality, and the pow- er thus conferred upon it to open, graduate, im- prove, regulate, and close its own streets. The state, as the sovereign agency of the people for the purposes of government, holds all public powers and utilities in trust for the public welfare, including those within as well as those beyond municipal boundaries.'' Its proper function is to decide what conveniences the public may enjoy for traffic and travel. Within constitutional limitations, it may deter- mine when, where, and how streets, as other public highways, 4 Elliott, Roads & S. p. 60 ; Parker v. Mayor, etc., of City of New Brunswick, 30 N. J. Iaw, 395 ; Wilson v. Allegheny City, 79 Pa. 272 ; Henkel v. Detroit, 49 Mich. 249, 13 N. W. 611, 43 Am. Rep. 464. 5 Common Council of Indianapolis v. Croas, 7 Ind. 9 ; Cowan's Case, 1 Overt. (Tenn.) 311; State v. Wilkinson, 2 Vt. 480, 21 Am. Dec. 560; Hciple v. City of East Portland, 13 Or. 97, 8 Pac. 907. 6 Brabon v. Seattle, 29 Wash. 6, 69 Pac. 365 ; John Anisfield Co. v. Edward B. Grossman & Co., 98 111. App. 180; Brace v. New York Cent. R. Co., 27 N. Y. 271 ; Dexter v. Tree, 117 111. 535, 6 N. E. 506 ; TOWNSEND V. EPSTEIN, 93 Md. 537, 49 Atl. 629, 52 L. R. A. 409, 86 Am. St. Rep. 441, Cooley, Cas. Mun. Corp. 254 ; State v. Berdetta, 73 Ind. 185, 38 Am. Rep. 117. 7 Kreigh v. City of Chicago, 86 111. 407 ; Elliott, Roads & S. § 656 ; Astor V. Mayor, etc., of City of New York, 62 N. Y. 567. 344 STREETS, SEWEES, PARKS, AND BUILDINGS (Ch. 11 shall be opened, graduated, improved, and regulated;' and^ though a street is used by the public for the' purposes of travel and traffic, the state may determine and declare the manner of the use of particular streets, excluding traffic from, some, and allowing railroads or street cars upon them, as it deems best ; " and it has even been held that the state may allow barriers, such as toUgates, to be erected upon them.^" The state may also vacate streets and close them to the public when it sees fit, but not so as to destroy the vested rights of abutting proprietors.^^ 8 Cicero Lumber Co. v. Town of Cicero, 176 111. 9, 51 N. E. 758,. 42 L. R. A. 696, 68 Am. St. Rep. 155; Barrows v. City of Sycamore, 150 111. 588, 37 N. E. 1096, 25 L. R. A. 535, 41 Am. St Rep. 400 -,. SIMON V. NORTHUP, 27 Or. 487, 40 Pac. 560, 30 L. R. A. 171, Cooley, Cas. Mun.'Corp. 57; Daley v. City of St. Paul, 7 Minn. 390' (Gil. 311) ; Baird v. Rice, 63 Pa. 489. A city council may prescribe by resolution that portion of a street which shall be used as a sidewalk. Cox v. Lancaster, 24 Ohio Cir. Ct R. 265. A public street is a passage open to all the citizens of the state to go and to return, subject to the law of the road. No one man or body of men has a superior right upon and in the street as against the general public. Chicago Union Traction Co. v. Stanford, 104 111. App. 99. 9 People V. Kerr, 27 N. Y. 188 ; Town of Areata v. Areata & M. R. R. Co., 92 Cal. 639, 28 Pac. 676 ; Floyd County v. Rome St R. Co.,. 77 Ga. 614, 3 S. E. 3. 10 Milarkey v. Poster, 6 Or. 378, 25 Am. Rep. 531; Stormfeltz t. Manor Turnpike Co., 13 Pa. 555. iiMahady v. Bushwick R. Co., 91 N. Y. 148, 43 Am. Rep. 661; Callanan v. Gilman, 107 N. Y. 360, 14 N. B. 264, 1 Am. St. Rep. 831 ; Marietta Chair Co. v. Henderson, 121 Ga. 399, 49 S. E. 312, 104 Am. St Rep. 156, 2 Ann. Cas. 83 ; Highbarger v. Mllford, 71 Kan. 331, 80 Pac. 633; Cooper v. City of Detroit, 42 Mich. 584, 4 N. W. 262; El- liott, Mun. Corp. § 399. Nonuser of a portion of a street cannnt operate as a surrender or abandonment of the same for the purposes of a public street City of Madison v. Mayers, 97 Wis. 399, 73 N. W. 43, 40 L. R. A. 635, 65 Am. St. Rep. 127. But a city council having been given no au- thority to vacate or abandon the public easement of a street an at- tempted abandonment of such easement by the city is ultra vires. Macintosh v. Town of Nome, 1 Alaska, 492. Mere inconvenience to a property owner from the vacation of a :§§ 106-107) LEGISLATIVE CONTKOL 345 Delegation of Power The power of control over the streets may be and usually is ■delegated to the municipality.^^ The power of a municipality to control its own streets depends entirely upon the provisions •of the charter or the general statutes.^* In some cases the power granted has been held to be unlimited, and the munici- pality vested with all the inherent power of control over the streets primarily possessed by the state.^* The grant is usu- ally expressed in general terms, such as to lay out, open, grade, and otherwise improve streets and keep them in repair;^' •or to have power over its streets; ^' or to have the care, su- «treet, which will also result to the general public, does not warrant Injunctive relief. Hall v. Lebanon, 31 Ind. App. 265, 67 N. E. 703. An abutting owner is entitled to an easement in the full length -of the street, and not merely to that part of the street directly in front and between the lines of the lot. Healey v. Kelly, 24 E. I. 581, 54 Atl. 588. 12 Marietta Chair Co. v. Henderson, 121 Ga. 399, 49 S. E. 312, 104 Am. St. Eep. 156, 2 Ann. Cas. 83. 13 Municipal corporations have no inherent power to regulate and control streets therein, for streets and' highways belonging to the state are under its control. Raynolds v. Cleveland, 24 Ohio Cir. Ct. E. 215. See Kean v. City of Elizabeth, 55 N. J. Law, 337, 26 Atl. 939 ; Mc- Grew V. Stewart, 51 Kan. 185, 32 Pac. 896; Citizens' St. E. Co. v. Memphis (C. C.) 53 Fed. 715; Shirk v. City of Chicago, 195 111. 298, 63 N. E. 193. Municipal corporations have the power to grant franchises to use streets for street railway purposes only by delegation from the state. Allen V. Clausen, 114 Wis. 244. 90 N. W. 181. See, also. State v. Yopp, 97 N. C. 477, 2 S. E. 458, 2 Am. St. Rep. 305; Denver Circle E. Co. V. Nestor, 10 Colo. 403, 15 P^c. 714. i*City of Terre Haute v. Turner, 36 Ind. 522; Illinois Cent. R. Co. T. City of Galena, 40 111. 344 ; Sinton v. Ashbury, 41 Cal. 525 ; City E. Co. V. Citizens' Street E. Co., 166 U. S. 557, 17 Sup. Ct. 653, 41 L. Ed. 1114. 15 But a grant of power to establish, regulate and control streets, given at a time when street railways were not contemplated, does not give a municipality power to regulate and control the construc- tion of street railways therein. Eaynolds v. Cleveland, supra, note 13 ; People v. Wilson, 62 Hun, 618, 16 N. Y. Supp. 583 ; Burr v. Town -of New Castle, 49 Ind. 322. 16 City of Hannibal v. Hannibal & St. J. E. Co., 49 Mo. 480. 346 STREETS, SEWERS, PARKS, A^D BUILDINGS (Ch. 11 pervision, and control of its streets." These general grants of authority by the state over its own streets, to its duly au- thorized general agent, to do whatever the state might do in controlling them, are held to confer plenary powers upon the municipality.^* The grant of power may, however, be partial, so that the state shall reserve to itself the sovereign power of exercising the right of eminent domain,^" or the power to de- termine what streets may be occupied by street cars or com- mon railways,^" and also the designation of particular limits within the city wherein certain trades or business may be carried on.^^ It has been held that a state may delegate its control to two public corporations within the same territory; ^^ but, because of the confusion and conflict likely to result from this double delegation of power, the courts will recognize it only when expressed in unmistakable language. ^^ The ju- dicial inclination also generally favors such construction of charters and general law as will vest the municipality with the control of its own streets. Discretion The power of control and regulation, whether exercised by the state or by the municipality under the delegation of pow- iT Shelton v. Mayor of Mobile, 30 Ala. 540, 68 Am. Dec. 143 ; White V. Kent, 11 Ohio St. 550. 18 Northern Transp. Co. v. Chicago, 99 TJ. S. 635, 25 L. Ed. 336; Spokane St. Ry. Co. v. City of Spokane, 5 Wash. 634, 32 Pac. 456; North Pacific Lumber & Mfg. Co. v. East Portland, 14 Or. 3, 12 Pac. 4. i»"West V. Blake, 4 Blackf. (Ind.) 234; Kerrigan v. West Hobo- ken Tp., 37 N. J. Law, 77. 2 Protzman v. Indianapolis & C. E. Co., 9 Ind. 467, 68 Am. Dec. 650; City of Clinton v. Cedar Kapids & M. R. Co., 24 Iowa, 455; Gulf, C. & S. F. R. Co. v. Eddins, 60 Tex. 656 ; City of Knoxville t. Africa, 77 Fed. 501, 23 C. C. A. 252 ; City of Houston v. Gulf, C. & S. F. R. Co. (Tex. Civ. App.) 35 S. W. 74. 21 2 Dill. Mun. Corp. § 656. 22 City of Norwich v. Story, 25 Conn. 44; Town of Bennington V. Smith, 29 Vt. 254; Wells v. McLaughlin, 17 Ohio, 99; Baldwin v. Green, 10 Mo. 410. 2 3 Common Council of Indianapolis v. Croas, 7 Ind. 9; State v. § 108) DEDICATION AND ACCEPTANCE 347 ers, is legislative in its nature, and is subject to judicial con- trol only when, in the exercise of the power, constitutional limitations are contravened or there is an abuse of discre- tion,-* though the general principle that a municipality is sub- ject to judicial supervision in the exercise of its power over streets is recognized in many cases.^* DEDICATION AND ACCEPTANCE 108. Dedication of property for street uses may be made by any legal or equitable owner, either in writing or orally, or by conduct, or acquiescence in public user, such as will suffice to estop claim to the con- trary. A dedication at common law is the appropriation and set- ting apart of private property to the use of the public.^" It consists of both act and intention, and may be either express or implied ; ^' express when the owner, either in writing or by parol, declares his intention to donate and surrender the prop- Jones, 18 Tex. 874 ; Cross v. Mayor, etc., of Morristown, 18 N. J. Eq. 305. 2* City of La Harpe v. Elm Tp. Gas, Light, Fuel & Power Co.,- 69 Kan. 97, 76 Pac. 448 ; Kakeldy v. Columbia & P. S. R. Co., 37 Wash. 675, 80 Pac. 205. Where the Legislature has vested in a village board discretionary power to vacate streets of the village, the courts will not ordinarily look into the motives influencing such board in doing such discre- tionary act. Village of Bellevue v. Bellevue Improvement Co., 65 Neb. 52, 90 N. W. 1002; People v. Fields, 58 N. Y. 491; Oliver v. City of Worcester, 102 Mass. 489, 3 Am. Rep. 485 ; Leeds v. City of Richmond, 102 Ind. 372, 1 N. B. 711. 2 5 Sutton V. City of Snohomish, 11 Wash. 24, 39 Pac. 273, 48 Am. St Rep. 847; Texarkana v. Leach, 66 Ark. 40, 48 S. W. 807, 74 Am. St. Rep. 68 ; Douglass v. City Council of Montgomery, 118 Ala. 589, 24 South. 745, 43 L. R. A. 376. 2 8 Black, Law Diet., in verb. 2 7 Ellsworth V. Lord, 40 Minn. 337, 42 N. W. 389; Village of Princeville v. Auten, 77 111. 325; McKee v. Perchment, 69 Pa. 342; State V. Woodward, 23 Vt. 92. 348 STREETS, SEWERS, PARKS, AND BUILDINGS (Ch. 11 erty to the use of the public; "^ implied as when this intention is signified by a public platting of property and lots with open spaces apparently for street uses,''" or when the public for a. long time uses the property for a street with the knowledge of the owner, and without his objection.'" Slight circum- stances of assent do not suffice to constitute a dedication, nor long user without the owner's knowledge;'^ but, when the public use has been continuous and notorious for a long time,, knowledge and assent may both be presumed.'^ Who May Dedicate — Common-Law Dedication Dedication may be made not only by a legal owner," but also by the owner of the equitable interest,'* or by a mariried" woman,'" but not by her husband." The common-law dedi- 28 Fomey v. Calhoun County, 84 Ala. 215, 4 South. 153 ; Cook v^ Harris, 61 N. Y. 448 ; Smith v. City of Navasota, 72 Tex. 422, 10 S. W. 414; Village of Wlnnetka v. Prouty, 107 111. 218; City of Shreve- port V. Drouin, 41 La. Ann. 867, 6 South. 656; Cummings v. City of St. Louis, 90 Mo. 259, 2 S. W. 130. 2 8 Darker v. Beck, 56 Hun, 650, 11 N. Y. Supp. 94; Waugh v. Leech, 28 111. 488; Waltman v. Eund, 109 Ind. 366, 10 N. E. 117;. Arrowsmlth v. City of New Orleans, 24 La. Ann. 194. 30 McKenna v. City of Boston, 131 Mass. 143 ; City of Chicago v. Sawyer, 166 111. 290, 46 N. E. 759 ; Faust v. City of Huntington, 91 Ind. 493; Hoole v. Attorney General, 22 Ala. 190. 31 Gerberling v. Wunnenherg, 51 Iowa, 125, 49 N. W. 861; Mitchell V. City of Denver, 33 Colo. 37, 78 Pac. 686; McKey v. Village of Hyde Park (C. C.) 37 Fed. 389; People ex rel. El Dorado Co. v. O'Keefe, 79 Cal. 171, 21 Pac. 539. 3 2 Smith V. Inge, 80 Ala. 283; Shea v. City of Ottumwa, 67 Iowa, 39, 24 N. W. 582 ; City of Cincinnati t. White, 6 Pet. (U. S.) 431, 8- L. Ed. 452. 8 3 La we V. City of Kaukauna, 70 Wis. 306, 35 N. W. 561; Forney V. Calhoun County, 84 Ala. 215, 4 South. 153 ; Town of Edenvillie v. . Chicago, M. & St. P. Ey. Co., 77 Iowa, 69, 41 N. W. 568. 34 City of Hannibal v. Draper, 15 Mo. 638; Johnstone v. Scott, 11 Mich. 232; Williams v. First Presbyterian Society in Cincinnati, 1. Ohio St. 478. 3 5 Todd V. Pittsburg, Ft W. & 0. R. Co., 19 Ohio St. 514 ; Schenley v. Commonwealth, to Use of City of Allegheny, 36 Pa. 29, 78 Am. Dec. 359. 3 6 City of Indianapolis v. Patterson, 112 Ind. 344, 14 N, E. 551 •,. City of Marshall v. Anderson, 78 Mo. 85. § 108) DEDICATION AND ACCBPTANOB 349 cation does not pass the title, but only a public easement,"^ the title still remaining ip the owner, who, upon abandonment of the easement, may resume possession. A dedication for street uses does not authorize the appropriation or conversion of the same to any other use, public or private.** Acceptance A common-law (Jedication for street uses is only consum- mated by an acceptance thereof by the municipality.*" Accept- ance can be made only by a duly authorized municipal agency ; but acceptance, like dedication, may be either express or im- plied.*" Implication of acceptance, however, is not to be made from mere public user ; but it may be implied from municipal appropriation for the street, or work done upon it under mu- 8 7 City of New Orleans v. U. S., 10 Pet (U. S.) 662, 9 L. Ed. 573 ; MeConnell v. Lexington, 12 Wheat. (U. S.) 582, 6 L. Ed. 735 ; City of Winona v. Huff, 11 Minn. 119 (Gil. 75) ; Donovan v. Alleit, 11 N. D. 289, 91 N. W. 441, 58 L. K. A.- 775, 95 Am. St. Rep. 720 ; Stevenson v. City of Chattanooga (C. C.) 20 Fed. 586 ; City of Du- buque V. Maloney, 9 lovpa, 450, 74 Am. Dec. 358; Bliss v. Ball, 99 Mass. 597; Brakken v. Minneapolis & St. L. Ry. Co., 29 Minn. 41, 11 N. W. 124 ; Baker v. City of St. Louis, 75 Mo. 671. Where the city owns the laAd included within a street, the sub- sequent narrowing of such street does not give title to the abutting owner of the narrow strip of land. Watson v. City of New York, 67 App. Div. 573, 73 N. X. Supp. 1027. Under a common-law dedication, where a street is vacated by a city, the vacated portion reverts to the abutting owners, subject to such rights as other abutting property owners on the street may have therein. Kinnear Mfg. Co. v. Beatty, 65 Ohio St. 264, 62 N. E. 341, 87 Am. St Rep. 600. 3 8 Oilman v. City of Milwaukee, 55 Wis. 328, 13 N. W. 266; May- or, etc., of City of New Orleans v. Leverich, 13 La. 332 ; Warren v. Mayor of City of Lyons, 22 Iowa, 351. A city cannot authorize a private corporation to construct a rail- way track for its use on a public street Schwede v. Hemrich Bros. Brewing Co., 29 Wash. 21, 69 Pac. 362; Heineck v. Grosse, 99 111. App. 441. 89 Village of Winnetka v. Prouty, 107 111. 218 ; City of San Fran- cisco V. Canavan, 42 Cal. 541; Holdane v. Trustees of Village of Cold Spring, 21 N. Y. 474. *o Baldwin v. City of Springfield, 141 Mo. 205, 42 S. W. 717; Abbott V. Cottage City, 143 Mass. 521, 10 N. E. 325, 58 Am. Rep. 143 ; Guth- rie V. Town of New Haven, 31 Conn. 308. 350 STREETS, SEWEES, PARKS, AND BUILDINGS (Ch. 11 nicipal authority.*^ The matter of acceptance becomes im- portant sometimes from the municipal duty to care for and repair tlie public streets.*^ When, however, the dedication is by the state, no act of acceptance is necessary; the same be- ing conclusively presumed, or, rather, authoritatively enjoined upon the municipality.** Statutory Dedication Statutory dedicatioa, as its name implies, is such as the general statutes of a state prescribe, and is determined, as to its form and character, by the provisions of the statute. In general, it may be said that its essential points differ from the common-law dedication, in (1) that acceptance is not re- quired; ** (2) that it transfers the title of the land to the pub- *i Steel V. Burgess, etc., of Borough of Huntington, 191 Pa. 627, 43 Atl. 398 ; Brabon v. Seattle, 29 Wash. 6, 69 Pac. 365 ; In re Hunt- er, 163 N. T. 542, 5T N, E. 735, 79 Am. St. Rep. 616; Morrison v. Burgess, etc., of Borough of Conshohocken, 17 Montg. Co. Law Rep'r (Pa:) 47 ; Folsom v. Town of Underhill, 36 Vt. 580 ; Parsons v. Trus- tees of Atlanta University, 44 Ga. 529; Kennedy v. Mayor and City Council of Cumberland, 65 Md. 514, 9 Atl. 234, 57 Am. Rep. 346; Gilder v. City of Brenham, 67 Tex. 345, 3 S. W. 309 ; Startle v. City of Minneapolis, 17 Minn. 308 (Gil. 284). The existence of a highway must be proved either by record, or by immemorial use and repair, or by dedication and acceptance. Stone V. Langworthy, 20 R. I. 602, 40 Atl. 832. See City of Chicago V. Sawyer, 166 111. 290, 46 N. B. 759. *2 Requa v. City of Rochester, 45 N. T. 129, 6 Am. Rep. 52; Wisby V. Bonte, 19 Ohio St. 238. A municipal corporation is bound to use ordinary care to keep its streets and sidewalks in a reasonably safe condition for public use. Town of Norman v. Tgel, 12 Okl. 69, 69 Pac. 791. But the duty re- quiring a city to maintain its streets and sidewalks in a reasonably safe condition for travel in the ordinary mode is limited during the time occupied in making repairs and improvements. City of South Omaha v. Burke, 3 Neb. (Unof.) 309, 91 N. W. 562 ; Magaha v. Hag- erstown, 95 Md. 62, 51 Atl. 832, 93 Am. St. Rep. 317. See City of Elgin v. Thompson, 98 111. App. 358 ; Fockler v. Kan- sas City, 94 Mo. App. 464, 68 S. W. 363 ; Anderson v. Albion, 64 Neb. 280, 89 N. W. 794 ; Bieber v. St. Paul, 87 Minn. 35, 91 N. W. 20; Ray V. Colby & Tenney, 5 Neb. (Unof.) 151, 97 N. W. 591. *3 Reilly V. City of Racine, 51 Wis. 526, 8 N. W. 417. ** Pierce v. Roberts, 57 Conn. 31, 17 Atl. 275 ; New Jersey Junction § 109) USE OF STKEET8 351 lic.*^ A donee or grantee need not usually be named, the dedication being to a public use ; but, wherever local law may require a trustee for such use, he will be appointed in equity, so that the trust may not fail.** USE OF STREETS 109. The primary use for which streets are dedicated is free and unobstructed passage over them ; but this use may be modified or temporarily obstructed under municipal authority for other necessary and appro- priate municipal purposes, not inconsistent with, nor destructive of, the primary use of public travel. The use of a street may be either public or private. Its use for travel is admittedly pubHc, while its use for the deposit of material, for the display of goods or hanging of signs is admittedly private. The municipality has the same right to control and regulate the private as the public uses.*^ But the general, principle that the municipality holds the streets in trust for public ^rposes must always control, and it cannot put them to any use inconsistent with their use as streets, or grant rights or privileges to private persons which prevent their use as thoroughfares for public travel.** The construction of buildings along the street may require a temporary deposit of building material in ,the street, or the preparation of material or other work of construction therein R. Co. V. Jersey City, 68 N. J. Law, 108, 52 Atl. 352, affirmed in 70 N. J. Law, 826, 59 Atl. 1117 ; Archer v. Salinas City, 93 Cal. 43, 28 Pac. 839, 16 L. E. A. 145 ; People v. Jones, 6 Mich. 176. 45 Wood V. National Water Works Co., 33 Kan. 590, 7 Pac. 233 ; Maywood Co. v. Village of Maywood, 118 111. 61, 6 N. E. 866. 4 Bryant's Lessee v. McCandless, 7 Ohio, 135, pt. 2. 47 Edison Electric Light & Power Co. of St. Paul v. Blomquist (C. C.) 185 Fed. 615. 48 Bennett v. Town of Mt. Vernon, 124 Iowa, 537, 100 N. W. 349; TOWNSEND V. EPSTEIN, 93 Md. 537, 49 Atl. 629, 52 L. R. A. 409, 86 Am. St. Rep. 441, Cooley, Cas. Mun. Corp. 254; Snyder v. City of 352 STREETS, SEWBKS, PAEKS, AND BUILDINGS (Ch. 11 to the inconvenience of the public; *° but permission for sucTi use may be granted by the municipality °" — usually, however, upon bond for the protection of the city against damages from the abuse of the privilege. Such obstructions must be reason- able, and not so long continued as to prove a nuisance."^ The municipal license will not protect the licensee from liability for damages to any abutting owner suffering special injury from . the obstruction."^ And for the protection of the.pubhc the city may require that the owner or contractor erecting a build- ing shall build a covered passway over the sidewalk."' Per- mission may be granted to use the, street for moving build- ings "* or for unloading cars,"" but such obstruction must be Mt. Pulaski, 176 111. 397, 52 N. E. 62, 44 L. R. A. 407; TUly v. Mitchell & Lewis Co., 121 Wis. 1, 98 N. W. 969, 105 Am. St. Rep. 1007; CITY COUNCIL OF AUGUSTA v. BURUM, 93 Ga. 68, 19 S. E. 820,. 26 L. R. A. 340, Cooley, Cas. Mun. Corp. 264. *9 People V. Mayor, etc., of New York, 59 How. Prac. (N. X.) 277; Commonwealth v. Passmore, 1 Serg. & R. (Pa.) 217; Raylnond v. Keseberg, 84 Wis. 302, 54 N. W. 612, 19 L. R. A. 643. BO Arthur v. City of Charleston, 51 W. Va. 132, 41 S. E. 171; Wood V. Mears, 12 Ind. 515, 74 Am. Dec. 222 ; Stuart v. Havens, 17 Neb. 211, 22 N. W. 419 ; McCarthy v. City of Chicago, 53 III. 38. 01 McCarthy v. City of Chicago, supra; First Nat. Bank of Mont- gomery V. Tyson, 133 Ala. 459, 32 South. 144, 59 L. R. A. 399, 91 Am. St. Rep. 46 ; Lund v. St. Paul, M. & M. R. Co., 31 Wash. 286, 71 Pac. 1032, 61 L. R. A. 506, 96 Am. St. Rep. 906 ; State v. Pratt, 52 Minn. 131, 53 N. W. 1069; Commonwealth v. Passmore, supra; Davis v. Winslow, 51 Me. 264, 81 Am. Dec. 573. Any permanent structure on a street for private use is a pur- presture and a nuisance. Hibhard, Spencer, Bartlett & Co. v. City of Chicago, 173 111. 91, 50 N. E. 256, 40 L. R. A. 621. 52 St. Vincent Female Orphan Asylum v. City of Troy, 78 N. T. 108, 32 Am. Rep. 286. Contra, Garrett v. Janes, 65 Md. 260, 3 Atl. 597. Cf. Salisbury v. Andrews, 128 Mass. 336. 6 3 Smith V. Milwaukee Builders' & Traders' Exchange, 91 Wis. 360, 64 N. W. 1041, 30 L. R. A. 504, 51 Am. St. Rep. 912. 5* Graves v. Shattuck, 35 N. H. 257, 69 Am. Dec. 536; Day v. Green, 4 Gush. (Mass.) 433; Williams v. Citizens' Ry. Co., 130 Ind. 71, 29 N. E. 408, 15 L. R. A. 64, 30 Am. St. Rep. 201. Where a council grants a permit to move a building through the streets, there is no implied authority to cut or remove branches from BB Mathews v. Kelsey, 58 Me. 56, 4 Am. Rep. 248. § 109) USE OF STREETS 353 discontinued within the shortest practicable time. And it has been held that the right to abate a street nuisance by proceed- ing in equity cannot be defeated by a municipal license or laches or estoppel,"' nor by prescription or statute of limita- tions."^ The municipality, in maintaining the streets, is per- forming a governmental function which cannot be alienated °* or lost; °' and herein applies the maxim, "Nullum tempus oc- currit regi." trees located between the sidewalk and the curb of the street, though necessary to use the permit. State v. Pratt, 52 Minn. 131, 53 N. W. 1069. The use of a street for moving a building may be permitted, but not so as to destroy the use of the street for travel or necessary public purposes, or so as to destroy or impair vested rights. North- western Telephone Exch. Co. v. Anderson, 12 N. D. 585, 98 N. W. 706, 65 L. R. A. 771, 102 Am. St. Rep. 580, 1 Ann. Cas. 110. See, also, Edison Electric Light & Power Co. of St. Paul v. Blomquist (C. C.) 185 Fed. 615. 56 Webb V. City of Demopolis, 95 Ala. 116, 13 South. 289, 21 L. R. A. 63. But where a city sees a landowner taking possession of a part of a street under an apparent claim of right, and, without objection, permits him to go on for years making improvements which the as- sertion of the public right to the whole street would destroy or im- pair, it is estopped by its laches to assert such right. Corey v. Ft. Dodge, 118 Iowa, 742, 92 N. W. 704. See, also, Dickerson v. Mayor, etc., of City of Le Roy, 72 111. App. 588. 67 Teass v. City of St. Albans, 38 W. Va. 1, 17 S. E. 400, 19 L. R. A. 802; Meyer v. City of Lincoln, 33 Neb. 566, 50 N. W. 763, 18 L. R. A. 146, 29 Am. St. Rep. 500. 58 Chicago General Ry. Co. v. Chicago City Ry. Co., 62 111. App. 502 ; Colwell v. Waterbury, 74 Conn. 568, 51 Atl. 530, 57 L. R. A. 218 ; New York & N. E. R. Co. v. Bristol, 151 U. S. 556, 14 Sup. Ct. 437, 38 L. Ed. 269 ; Wabash R. Co. v. Defiance, 167 U. S. 88, 17 Sup. Ct. 748, 42 L. Ed. 87. A city in Indiana, vested by statute with exclusive authority, juris- diction, and power over its streets, cannot alienate such power by a grant to a street railway company in perpetuity to build and operate its road through the streets. Logansport R. Co. v. City of Logans- port (C. C.) 114 Fed. 688. See Florida Cent. & P. R. Co. v. Ocala St. & S. R. Co., 39 Fla. 306, 22 South. 692; Hibbard, Spencer, Bartlett & Co. V. City of Chicago, 173 111. 91, 50 N. E. 256, 40 L. R. A. 621. 69 Atlantic City v. Snee, 68 N. J. Law, 39, 52 Atl. 372; Blenner- bassett V. Forest City, 117 Iowa, 680, 91 N. W. 1044; WakeUng v. Cock- COOL.MUN.COEP. — 23 354 STREETS, SEWERS, PARKS, AND BUILDINGS (Ch. 11 Authorised Uses The municipality may also authorize the use 'of streets for telegraph, telephone, and electric poles and wires,"" street and commercial railways,"'^ and may allow below the surface the laying of gas, water, and sewer mains and pipes, and the con- struction of subways.®^ Poles may not be planted and wires strung for electric use in the streets without express consent of the municipality; "^ and it has been held that the munici- pality may not grant this privilege unless thereunto expressly authorized."* But the decisions upon this subject are not en- er, 23 Pa. Super. Ct. 196; Sims v. City of Cbattanooga, 2 Lea (Tenn.) 694 ; Burbank v. Fay, 65 N. Y. 57 ; Kopf v. Utter, 101 Pa. 27. 60 Aurora Electric Light & Power Co. v. McWethy, 104 111. App. 479; McWethy v. Aurora Electric Light & Power Co., 202 111. 218, 67 N. E. 9 ; Village of London Mills v. Fairview London Telephone Circuit, 105 111. App. 146 ; Taylor v. Portsmouth, K. & Y. St. Ry., 91 Me. 193, 39 Atl. 560, 64 Am. St. Kep. 216; Mutual Union Telegraph Co. V. City of Chicago (C. C.) 16 Fed. 309. A city cannot revoke its license granted to a telephone company to erect poles on its streets after the company has completed its work in accordance with the conditions of the ordinance granting the permit. Phillipsburg Electric Lighting, Heating & Power Co. v. Inhabitants of Town of Phillipsburg, 66 N. J. Law, 505, 49 Atl. 445. See Wyandotte Electric-Light Co. v. City of Wyandotte, 124 Mich. 43, 82 N. W. 821; Rutland Electric Light Co. v. Marble City Electric Light Co., 65 Vt. 377, 26 Atl. 635, 20 L. R. A. 821, 36 Am. St. Rep. 868. But see Coverdale v. Edwards, 155 Ind. 374, 58 N. E. 495. «i Taylor v. Portsmouth, K. & Y. St. Ry.. supra; Hudson River Telephone Co. v. Watervllet Turnpike & Ry. Co., 135 N. Y. 393, 32 N. E. 148, 17 L. R. A. 674, 31 Am. St. Rep. 838; Detroit Citizens' St. Ry. Co. V. City of Detroit, 64 Fed. 628, 12 C. C. A. 365, 26 L. R. A. 667 ; Ruttle v. City of Covington, 10 S. W. 644, 10 Ky. Law Rep. 766 ; Daly V. Georgia S. & F. R. Co., 80 Ga. 793, 7 S. E. 146, 12 Am. St. Rep. 286. B2 Rochester & L. O. Water Co. v. Rochester, 176 N. Y. 36, 68 N. B. 117 ; Empire City Subway Co. v. Broadway & S. A. R. Co., 159 N. Y. 555, 54 N. E. 1092; City of Quincy v. Bull, 106 111. 337; Milhau V. Sharp, 27 N. Y. 611, 84 Am. Dec. 314 ; State ex rel. Attorney Gen- eral V. Cincinnati Gas Light & Coke Co., 18 Ohio St. 262. •5 3 State ex rel. Wisconsin Tel. Co. v. City of Sheboygan, 111 Wis. 23, 86 N. W. 657 ; Domestic Telephone Co. v. Kewark, 49 N. J. Law, 344, 8 Atl. 128 ; Julia Bldg. Ass'n v. Bell Telephone Co., 88 Mo. 258, 57 Am. Rep. 398. 6* Commonwealth v. City of Boston, 97 Mass. 555; Irwin v. Great § 109) USE OF STREETS 355 tirely harmonious; " and, if such electric wires become so nu- merous as to impair the public safety, the municipality may require that they shall be taken off the streets and placed be- low the surface.^ Street Railways After some contention, the power of a municipality to au- thorize the construction of street railways in its streets has been thoroughly established and uniformly recognized ; ®' but the city may impose such conditions as the safety of the pub- lic or the welfare of the municipality may require,'^ not only at the time of granting the privilege, but also thereafter in the Southern Telephone Co., 37 La. Ann. 63 ; Dodd v. Consolidated Trac- tion Co., 57 N. J. Law, 482, 31 Atl. 980 ; Barhite v. Home Telephone Co. of Rochester, 50 App. Div. 25, 63 N. T. Supp. 659. Such privilege, being legislative In its character, is not subject to judicial revision at the suit of an abutting owner on the ground of inexpediency. Lange v. La Crosse & Eastern R. Co., 118 Wis. 558, 95 N. W. 952. 8 5 Meyers v. Hudson County Electric Co., 63 N. J. Law, 573, 44 Atl. 713; Dodd v. Consolidated Traction Co., supra; East Ten- nessee Telephone Co. v. City of Bussellville, 106 Ky. 667, 51 S. W. 308, 21 Ky. Law Rep. 305 ; Julia Bldg. Ass'n v. Bell Telephone Co., 88 Mo. 258, 57 Am. Rep. 398; Western Union Telegraph Co. V. City of New York (C. C.) 38 Fed. 552, 3 L. B. A. 449; City of Geneva v. Geneva Telephone Co., 30 Misc. Rep. 236, 62 N. Y. Supp. 172; State ex rel. National Subway Co. v. City of St. Louis, 145 Mo. 551, 46 S. W. 981, 42 L. R. A. 113. ee O'Brien v. City of Erie, 20 Pa. Co. Ct. R. 337, 7 Pa. Dist. R. 491 ; Michigan Telephone Co. v. City of Charlotte (C. C.) 93 Fed. 11 ; Ches- apeake & P. Telephone Co. v. City of Baltimore, 89 Md. 689, 44 Atl. 1033 ; Western Union Telegraph Co. v. City of New York ,(C. C.) 38 Fed. 552, 3 L. R. A. 449. 87 Blair v. City of Chicago, 201 U.. S. 400, 26 Sup. Ct. 427, 50 L. Ed. 801 ; City R. Co. v. Citizens' Street R. Co., 166 U. S. 557, 17 Sup. Ct. 653, 41 L. Ed. 1114 ; Almand v. Atlanta Consol. St. Ry. Co., 108 Ga. 417, 34 S. E. 6 ; St. Louis & S. R. Co. v. Lindell R. Co., 190 Mo. 246, 88 S. W. 634; Watson v. Fairmont &,S. Ry. Co., 49 W. Va. 528, 39 S. E. 193. But the power exists only by virtue of a delegation by the state. Allen v. Clausen, 114 Wis. 244, 90 N. W. 181; Beekman V. Third Ave. R. Co., 153 N. Y. 144, 47 N. E. 277. See, also. City of Stillwater v. Lowry, 83 Minn. 275, 86 N. W. 103. 88 Fath V. Tower Grove & L. Ry., 105 Mo. 537, 16 S'. W. 913, 13 L. R. A. 74 ; City of Philadelphia v. Ridge Ave. Pass. Ry. Co., 143 Pa. 356 STREETS, SEWERS, PARKS, AND BUILDINGS (Ch. 11 exercise of the police powers ; ** and it has been held that, for a breach of these conditions, franchises may be declared for- feited by the court.'" The power of , the city to grant a fran- chise for the use of its streets to an ordinary railroad with- out express authority has been doubted ; " and it has been held that such right cannot be granted for the private use of individuals.'^ Surface and Underground Control of Streets The municipality has control of its streets below as well as above the surface, and may therefore grant to public service 444, 22 Atl. 695 ; City of New Orleans v. New Orleans City & L. E. Co., 40 La. Ann. 58T, 4 South. 513. 69 State V. Sloan, 48 S. C. 21, 25 S. E. '898; Textor v. Baltimore & 6. E. Co., 59 Md. 63, 43 Am. Eep. 540 ; Pittsburg, Ft. W. & C. Ry. Co. V. City of Chicago, 159 111. 369, 42 N. E. 781. 70 State ex rel. Attorney General v. Madison Street Ey. Co., 72 Wis. 612, 40 N. W. 487, 1 L. E. A. 771 ; Galveston & W. Ey. Co. v. City of Galveston, 90 Tex. 398, 39 S. W. 96, 36 L. E. A. 33. ' 71 Stanley v. City of Davenport, 54 Iowa, 463, 2 N. W. 1064, 6 N. W. 706, 37 Am. Eep. 216 ; Lockwood v. Wabash R. Co., 122 Mo. 86, 26 S. W. 698, 24 L. E. A. 516, 43 Am. St. Eep. 547 ; Tallon v. City of Hoboken, 60 N. J. Law, 212. 87 Atl. 895 ; Delaware, L. & W. E. Co. V. City of Buffalo, 158 N. 1. 266, 53 N. E. 44 ; CITY OF ST. PAUL v. CHICAGO, M. & ST. P. ET. CO., 63 Minn. 330, 65 N. W. 649, 34 L. E. A. 184, Cooley, Cas. Mun. Corp. 259; Ruttle v. City of Coving- ton, 10 Ky. Law Rep. 766, 10 S. W. 644 ; Daly v. Georgia S. & P. E. Co., 80 Ga. 793, 7 S. E. 146, 12 Am. St. Eep. 286; McGann v. Peo- ple ex rel. Coffeen, 194 111. 526, 62 N. E. 941. A municipality, having power over its streets, must exercise it for the general public, and cannot grant a railway company such use of a street as will destroy its public usefulness. Burnes v. City of St. Joseph, 91 Mo. App. 489. But see Town of New Castle v. Lake Erie & W. E. Co., 155 Ind. 18, 57 N. E. 516 ; Stockdale v. Eio Grande Western E. Co., 28 Utah, 201, 77 Pac. 849. 72 People V. Blocki, 203 111. 363, 67 N. E. 809; Schwede v. Hemrich Bros. Brewing Co., 29 Wash. 21, 69 Pac. 362 ; Gustafson v. Hamm, 56 Minn. 334, 57 N. W. 1054, 22 L. E. A. 565; Glaessner v. Anheuser- Busch Brewing Association, 100 Mo. 508, 13 S. W. 707; 3 ElUott, R. E. § 1077. But see Texarka-na & Ft. S. R. Co. v. Texas & N. O. E. Co., 28 Tex. Civ. App. 551, 67 S.-W. 525. The erection of buildings on a public street is an invasion of the rights of both the public and every owner of land abutting thereon. Northern Pac. Ey. Co. v. Lake, 10 N. D. 541, 88 N. W. 461; Hanbury v. Woodward Lumber Co., 98 Ga. 54, 26 S. E. 477. § 109) USE OF STREETS ^ 357 corporations the right to lay pipes and mains and to construct subways for all proper municipal purposes. These m-ay in- clude not only pipes and mains for water, gas, and sewage, in case the city has no public system, but also conduits for electric wires and subAvays for railroads. And in general, it may be said that the power of the municipality over and un- der its streets, when exercised for the public use, is plenary.'^ Vacation A public street of a city cannot be vacated by the munici- pality, even in part, unless authority to do so is conferred in express terms or by necessary implication.'* But the state, since it possesses paramount power over streets, may vacate them, or authorize their vacation by the municipality.'" Such power, being discretionary, is rarely supervised or interfered with by the courts ; but the vacation must be for public, not private, benefit. The vacation may be total, or partial only, and must be effected in the mode prescribed by law. Abut- ters have peculiar rights in streets, and always assert the old adage, "Once a highway, always a highway." They may not only stand surely upon "due process of law" for protection, but may also insist upon the constitutional' right to compensa- 13 City of Richmond v. Smith, 101 Va. 161, 43 S. E. 345; Budd v. Camden Horse E. Co., 63 N. J. Eq. 804, 52 Atl. 1130 ; Leeds v. City of Richmond, 102 Ind. 372, 1 N. E. 711 ; City of Cincinnati v. Penny, 21 Ohio St. 499, 8 Am. Rep. 73; McKevitt v. Mayor, etc., of City of Hohoken, 45 N. J. Law, 482 ; Horton v. Mayor, etc., of City of Nash- ville, 4 Lea (Tenn.) 39, 40 Am. Rep. 1; Mayor, etc., of City of Aineri- cus V. Eldridge, 64 Ga. 524, 37 Am. Rep. 89 ; Pool v. Trexler, 76 N. C. 297; Lowell v. City of Boston, 111 Mass. 454, 15 Am. Rep. 39; People V. Nearing, 27 N. Y. 309; Ferrenbach v. Turner, 86 Mo. 416, 50 Am. Rep. 437. As to the use of the surface of the street for hack stands, see Odell v. Bretney, 38 Misc. Rep. 603, 78 N. T. Supp. 67. 7* City of Texarkana v. Leach, 66 Ark. 40, 48 S. W. 807, 74 Am. St. Rep. 68 ; Florida Cent. & P. R. Co. v. Ocala St & S. R. Co., 39 Fla. 306, 22 South. 692; Coker v. Atlanta K. & N. R. Co., 123 Ga. 483, 51 S. E. 481. T5 Hlghbarger v. Milford, 71 Kan. 331, 80 Pac. 633 ; Marietta Chair Co. V. Henderson, 121 Ga. 399, 49 S. E. 312, 104 Am. St. Rep. 156, 2 Ann. Cas. 83. 358 STREETS, SEWERS, PARKS, AND BUILDINGS (Ch. 11 tion for the appropriation of their easement of access to the public use." Abandonment Abandonment of streets has been recognized by some Amer- ican courts as an informal but sufficient vacation; but, since it cannot be based upon lapse of time or nonuser, the evidence of the' municipal conduct must exclude all reasonable doubt as to the fixed purpose to vacate a street.'^ ABUTTING OWNERS 110. An abutting owner shares in all the rights of the gen- eral public, and, in addition thereto, has such spe- cial rights as arise from his property abutting on the street. All persons owning property fronting on a public street hold the same subject to the right of the public to do in respect thereto all such things as are usual and reasonable, and which the property owner may fairly be considered to have contem- plated when the street was opened or dedicated.''* The owner of course, shares in all the rights of the public, but in addi- tion thereto he has certain special rights arising from his own- ership.^' Among these is the right of free and unimpeded 7 6 Callanan v. Oilman, 107 N. T. 360, 14 N. E. 264, 1 Am. St. Rep. 831; Lahr's Case, 104 N. Y. 268, 10 N. E. 528 ; Butterworth v. Bart- lett, 50 Ind. 537; City of Cincinnati v. White, 6 Pet. (U. S.) 431, 8 L. Ed. 452 ; Coster v. Mayor, etc., of City of Albany, 43 N-. Y. 399 ; Elliott, Roads & S. p. 664 ; James v. City of Darlington, 71 Wis. 173, 36 N. W. 835 ; Hesing v. Scott, 107 111. 600. But on compensation, see McGee's Appeal, 114 Pa. 470, 8 Atl. 237. 7 7 Warner v. Inhabitants of Holyoke, 112 Mass. 362; City of Peor- ia V. Johnston, 56 111. 45 ; Driggs y. Phillips, 103 N. Y. 77, 8 N. E. 514; State V. Culver, 65 Mo. 607, 27 Am. Dec. 295 ; Reilly v. City of Ra- cine, 51 Wis. 526, 8 N. W. 417; Sanborn v. School Dlst., No. 10, Rice County, 12 Minn. 17 (Gil. 1) ; Lathrop v. Central Iowa R. Co., 69 Iowa, 105, 28 N. W. 465. 78 Hohmann v. City of Chicago, 41 111. App. 41. 79 Dries v. City of St. Joseph, 98 Mo. App. 611, 73 S. W. 723. § IIQ) ABUTTING OWNERS 359 ingress and egress to and from his property for himself and animals and goods, even though he may thereby cause tem- porary inconvenience to the public in general, t" The con- venient use of property, in urban communities, is dependent upon connections with sewer, water, and gas pipes. For these the owner himself must pay. The property is subject to con- tribution of its share of the cost of building sidewalks and pavements in front of it.*^ All these are necessary to the en- joyment of his property, and are as much property as is the land itself, and equally within constitutional protection.** 8 Callanan v. Gilman, 107 N. Y. 360, 14 N. E. 264, 1 Am. St. Eep. 831 ; Story's Case, 90 N. T. 122, 43 Am. Eep. 146 ; ZIMMERMAN v. METROPOLITAN ST. R. CO., 154 Mo. App. 296, 134 S. W. 40, Cooler, Cas. Mun. Corp. 269. Owners of property abutting on an alley have property rights not shared by the general public in the entire alley, and the obstruction of a terminus of the alley by the city, thus preventing egress and ingress from the street, is an actionable private vsrrong. Dries v. St. Joseph, 98 Mo. App. 611, 73 S. W. 723. But the mere fact that an obstruction in a street .causes inconvenience in getting from the street in front of his house to a particular part of the city does not constitute such special damage as to entitle the owner to an injunc- tion. Guttery v. Glenn, 201 111. 275, 66 N. E. 305. And see Henderson . V. City of Minneapolis, 32 Minn. 319, 20 N. W. 322. It has been held that an abutting owner may maintain injunction proceedings to prevent the obstruction of a public street, he having an especial interest therein because the street makes his property a corner lot, and affords him access to the sides and rear thereof. Longworth v. Sedevic, 165 Mo. 221. 65 S. W. 260. See Davis v. City of Appleton, 109 Wis. 580, 85 N. W. 515 ; City of Dubuque v. Maloney, 9 Iowa, 450, 74 Am. Dec. 358; Donahue v. Key- stone Gas Co., 90 App. Div. 386, 85 N. T. Supp. 478 (shade trees de- stroyed by escaping gas) ; Pence v. Bryant, 54 W. Va. 263, 46 S. B. 275 ; Village of Winnetka v. Chicago & M. Electric R. Co., 107 111. App. 117; Id., 204 111. 297, 68 N. B. 407; Young v. Rothrock, 121 Iowa, 588, 96 N. W. 1105 ; Same v. Chadima Bros., Id. ; Montgomery City Council v. Parker, 114 Ala. 118, 21 South. 452, 62 Am. St. Rep. 95. An abutting owner may place steps, stepping stones, hitching posts, and awning posts on the highway. Louth v. Thompfeon, 1 Pennewill (Del.) 149, 39 Atl. 1100. But see West v. Bancroft, 32 Vt. 367. 812 Dill. Mun. Corp. § 656a. 8 2 First Nat. Bank of Montgomery v. Tyson, 133 Ala. 459, 32 South. 144, 59 L. R. A. 399, 91 Am. St. Rep. 46 ; Story v. New York 360 STEEETS, SEWEE^ PAEKS, AND BUILDINGS (Gh. 11 Vaults under Sidewalks If the fee of the street is in the abutting owner, it is held that he has right to excavate under the walk,'' subject to mu- nicipal regulations, and to use space there for such purposes as do not interfere with full and complete use of the street by the public." If the fee to the street belongs to the mu- nicipality, this right may be conceded to the abutter under like conditions. '' Whether his right in such case is equal to that when he owns the fee to the street is not definitely estab- lished by the decisions of the courts.^' This is true even in New York, where the rights of the abutting owner have been most repeatedly and thoroughly litigated.^J Whatever the rights of the abutter may be in either instance, they must be held by him subject to the paramount rights of the public, EI. R. Co., 90 N. Y. 122, 43 Am. Dee. 146; Lahr v. Metropolitan E. Ry. Co., 104 N. Y. 268, 10 N. E. 528. The occupants of a building abutting upon a sidewalk are entitled to have the light and air pass upobstructed across the open space between the surface of the sidewalk and the sky. John Anisfield Co. V. Edward B. Grossman & Co., 98 111. App. 180. See TOWNSEND v. EPSTEIN, 93 Md. 537, 49 Atl. 629, 52 L. U. A. 409,. 86 Am. St. Rep. 441, Cooley, Cas. Mun. Corp. 254. 8 3 First Nat. Bank of Montgomery v. Tyson, supra; McCarthy v. City of Syracuse, 46 N. Y. 194; Davis v. City of Clinton, 50 Iowa, 588 ; Fisher v. Thirkell, 21 Mich. 1, 4 Am. Rep. 422 ; Papworth v. City of Milwaukee, 64 Wis. 389, 25 N. W. 481. See Deshong v. City of New York, 74 App. Div. 234, 77 N. Y. Supp. 563. 84 Heineck v. Grosse, 99 111. App. 441 ; Adair v. City of Atlanta, 124 Ga. 288, 52 S. E. 739; Dell Rapids Mercantile Co. v. City of Dell Rapids, 11 S. D. 116, 75 N. W. 898, 74 Am. St. Rep. 783 ; Louth V. Thompson, 1 Pennewill (Del.) 149, 39 Atl. 1100; City of Ord v. Nash, 50 Neb. 335, 69 N. W. 964; Gridley v. City of Bloomington, 68 111. 50; Robert v. Sadler, 104 N. Y. 229, 10 N. E. 428, 58 Am. Rep. 498. 85 Tied. Mun. Corp. § 298. 8 6 Nelson v. Godfrey, 12 111. 22; Gridley v. City of Bloomington, supra. 8 7 Robert V. Sadler, 104 N. Y. 229, 10 N. E. 428, 58 Am. Rep. 498; McCarthy v. City of Syracuse, 46 N. Y. 194 ; Deshong v. City of New York, 74 App. Div. 234, 77 N. Y. Supp. 563. § 110) ABUTTING OWNERS 361 which are not confined to the right of travel, only, but extend to all legitimate street uses, both above and below the sur- face, which the public welfare may require.'* Lcnteral Support An abutting owner has at common law no right to lateral support of street soil,** and none can be acquired by prescrip- tion or lapse of time ; *° and, though the street grade may be changed so that his fences fall, he has no action therefor."^ Nor can an abutting owner be compelled to repair sidewalks or streets in front of his property in absence of statutory pro- vision, no liability for such repair existing at common law.** A dditional Burdens — Compensation If additional burdens are imposed upon a street, abutting owners are entitled to compensation, jf damaged; and this notwithstanding the fee is in the public, or the municipality for public use.*^ But "there must be an injury to the present use and enjoyment of the land." So it is held that they may recover damages for the construction of a common traffic rail- 8 8 Allen T. City of Jersey City, 53 N. J. Law, 522, 22 Atl. 257 ; Louth V. Thompson, 1 Pennewill (Del.) 149, 39 Atl. 1100. 89 Thurston v. Hancock, 12 Mass. 220, 7 Am. Dec. 57; Taylor v. City of St. Louis, 14 Mo. 20, 55 Am. Dec. 89; Castleberry v. City of Atlanta, 74 Ga. 164 ; City of Quincy v. Jones, 76 111. 231, 20 Am. Rep. 243. 80 Mitchell v. Mayor, etc., of City of Eome, 49 Ga. 19, 15 Am. Rep. 669. 91 City of Cincinnati v. Penny, 21 Ohio St. 499, 8 Am. Rep. 73. 92 Village of Fulton v. Tucker, 3 Hun (N. Y.) 529 ; Wenzlick v. Mc- , Cotter, 87 N. Y. 122, 41 Am. Rep. 358. 98 Theobold v. Louisville, N. O. & T. Ry. Co., 66 Miss. 279, 6 South. 230, 4 L. R. A. 735, 14 Am. St. Rep. 564. Where a city erects buildings in a street without authority, an abutting property owner injured by the nuisance so caused is en- titled to maintain an action against the city to abate the nuisance, and recover damages occasioned thereby. Pettit v. Grand Junction, Greene County, 119 Iowa, 852, 93 N. W. 381. In the erection of telegraph and^ telephone lines, those exercising the franchise may be compelled to pay damages to the abutting owners. Patton v. City of Chattanooga, 108 Tenn. 197, 65 S. W. 414. 362 STREETS, SEWEES, PARKS, AND BUILDINGS (Ch. 11 road,'* but not for a mere street railway, whether operated by cable, electric, or horse power.'' Balconies, Awnings, and Other Projections The abutter has no right to project his buildings, or any part thereof or attachment thereto, over the street line, with- out municipal consent ; °* but a city may permit abutters to extend balconies, bay windows, awnings, or signs into o*Ruttle V. City of Covington, 10 Ky. Law Rep. 766, 10 S. W. 644 ; Perry v. New Orleans, M. & C. R. Co., 55 Ala. 413, 28 Am. Rep. 740 ; Imlay v. Union Branch R. Co., 26 Conn. 249, 68 Am. Dec. 392 ; Nicholson V. New York & N. H. R. Co., 22 Conn. 74, 56 Am. Dec. 390 ; Cox V. Louisville, N. A. & C. R. Co., 48 Ind. 178 ; Lexington & O. R. Co. V. Applegate; 8 Dana (Ky.) 289, 33 Am. Dec. 497; Wil- liaihs V. New York Cent. R. Co., 16 N. Y. 97, 69 Am. Dec. 651 ; In- habitants of Springfield v. Connecticut River R. Co., 4 Cush. (Mass.) 71 ; Harrington v. St. Paul & S. C. R. Co., 17 Minn. 215 (Gil. 188) ; Southern Pac. R. Co. v. Reed, 41 Cal. 256. In People v. Harris, 203 111. 272, 67 N. E. 785, 96 Am. St. Rep. 304, it was held that a municipality has no power to authorize by ordinance the construction by a private citizen of a projection ex- tending into the street in front of his property for any distance — even the smallest — so as to deprive the public of their right to the use of the street in its entirety. 95 Kennelly v. City of Jersey City, 57 N. J. Law, 293, 30 Atl. 531, 26 L. R. A. 281; Hine v. Keokuk & D. M. R. Co., 42 Iowa, 636; Stewart v. Chicago General St. Ry. Co., 58 111. App. 446 ; Merrick v. Intramontaine R. Co., 118 N. C. 1081, 24 S. E. 667 ; Elliott v. Fair Haven & W. R. Co., 32 Conn. 579; Hobart v. Milwaukee City R. Co., 27 Wis. 194, 9 Am. Rep. 461; Citizens' Coach Co. v. Camden Horse R. Co., 33 N. J. Eq. 267, 36 Am. Rep. 542 ;, Savannah & T. R. Co. v. Mayor, etc., of City of Savannah, 45 Ga. 602; Brown v. Duplessis, 14 La. Ann. 842; Hiss .v. Baltimore & H. Pass. Ry. Co., 52 Md. 242, 36 Am. Rep. 371. 96 Young V. Rothrock, 121 Iowa, 588, 96 N. W. 1105; Same v. Ohadlma Eros., Id., where an ice chute across a street was held to be a nuisance. See Broadbelt v. Loew, 15 App. Div. 343, 44 N. Y, Supp. 159; First Nat. Bank of Montgomery v. Tyson, 133 Ala. 459, 30 South. 144, 59 L. R. A. 399, 91 Am. St. Rep. 46 ; City of Valparaiso V. Bozarth, 153 Ind. 536, 55 N. E. 439, 47 L. R. A. 487. But where a statute authorizes the construction, the city has no authority to prohibit it. French v. Inhabitants of Brunswick, 21 ,Me. 29, 38 Am. Dec. 250; City of Allegheny v. Zimmerman, 95 Pa. 287, 40 Am. Rep. 649; Hawkins v. Sanders, 45 Mich. 491, 8 N. W. 98; Day v. Mil- ford, 5 Allen (Mass.) 98; Bohen v. City of Waseca, 32 Minn. 176, § 111) SEWERS 363 streets ; °J and it has been held that in such case an adjoining property owner may not maintain an action for inconvenience suffered by him therefrom."* SEWERS 111. The construction of sewers is an inherent municipal function for sanitary purposes, and may be imper- atively imposed upon a municipality by the state. The power and duty of the municipality in preserving- the public health often require the construction of a sewer sys- tem for the use of the citizens, and, in commenting upon the famous Detroit Park Case, Judge Dillon argues that the leg- islature would have authority to compel the construction of a §eweragg systern for the benefit of the city.** But whether this is a governmental or municipal power and duty is not clear from the decisions of the courts, some opinions suggest- ing that, as a part of the high duty of preserving the public 19 N. W. 730, 50 Am. Rep. 564; Jones v. City of Boston, 104 Mass. 75, 6 Am. Rep. 194. »7 Irvine v. Wood, 51 N. Y. 224, 10 Am. Rep. 603; Van O'Linda V. Lothrop, 21 Pick. (Mass.) 292, 32 Am. Dec. 261 ; Ivins v. Inhabit- ants of City of Trenton, 68 N. J. Law, 501, 53 Atl. 202; Id., 69 N. J. Law, 451, 55 Atl. 1132. But where a property owner conducted stores on opposite sides of the street, and built a passway over the street connecting the two stores, the ordinance authorizing such construction was held invalid. TOWNSEND V. EPSTEIN, 93 Md. 537, 49 Atl. 629, 52 L. R. A. 409, 86 Am. St. Rep. 441, Cooley, Cas. Mun. Corp. 254. 98 Garrett v. Janes, 65 Md. 260, 3 Atl. 597; Salisbury v. Andrews, 128 Mass. 336. But see John Anisfield Co. v. Edward B. Grossman & Co., 98 111. App. 180. If his means of egress and ingress from and to his propei;ty are obstructed, he may maintain a suit against the person erecting the construction for its removal. Bourbon Stock Yard Co. v. Wooley, 25 Ky. Law Rep. 477, 76 S. W. 28. s» 1 Dill. Mun. Corp. § 73. 364 STREETS, SEWEES, PARKS, AND BUILDINGS (Ch. 11 health, it is governmental,^ while others indicate that it is mu- nicipal, as being for the special benefit of the people of the municipality.^ Certain is it that the power is an important one, and is universally exercised in all the larger and many of the smaller cities. Municipal Discretion — Extraterritorial Acquisition Unless the duty is positively imposed by the state, the mu- nicipality has discretion to dietermine whether it will construct a system of sewers, and also the nature and cost of the sys- tem.'' This function is legislative, and the municipality can- not be held liable for failure to exercise it, and thus provide a system of its own,' or for mistake made in the choice of the systems offered." Usually this power is held, as we have heretofore seen,' to be confined to the municipal boundaries; but it is often expressly permitted to the municipality to ac- quire property outside its limits for obtaining an outlet for its sewerage system, and it has been held that this power to ob- tain an extraterritorial outlet may be implied from the power to construct such system.^ 1 Cochrane v. City of Maiden, 152 Mass. 365, 25 N. E. 620 ; Noble V. Village of St Albans, 56 Vt. 522 ; Springfield v. Spence, 39 Obio St. 665 ; Weis v. City of Madison, 75 Ind. 241, 39 Am. Rep. 135. 2 Donahoe v. City of Kansas City, 136 Mo. 657, 38 S. W. 571 ; Os- trander v. City of Lansing, 111 Mich. 693, 70 N. W. 332 ; City of De- troit V. Corey, 9 Mich. 165, 80 Am. Dec. 78. 3 Carr v. Northern Liberties, 35 Pa. 324, 78 Am. Dec. 342. 4 Mills V. City of Brooklyn, 32 N. Y. 489 ; Henderson v. City of Minneapolis, 32 Minn. 319, 20 N. W. 322 ; Cummins v. City of Sey- mour, 79 Ind. 491, 41 Am. Rep. 618; City Council of Montgomery v. Gilmer, 33 Ala. 116, 70 Am. Dec. 562 ; Jordan v. City of Benwood, 42 W. Va. 312, 26 S. E. 266, 36 L. R. A. 519, 57 Am. St. Rep. 859. B Mills v. City of Brooklyn, supra ; Perry v. City of Worcester, 6 Gray (Mass.) 544, 66 Am. Dec. 431; Diamond Match Co. v. New Haven, 55 Conn. 510, 13 Atl. 409, 3 Am. St. Rep. 70. 8 Ante, § 55. 7 Maywood Co. v. Village of Maywood, 140 111. 216, 29 N. E. 704. It has been held that a city has inherent authority, unless ex- pressly forbidden by its charter, to make contracts and construct works beyond the corporate limits for the discharge of sewage, where § 111) SEWEB3 365 Eminent Domain The municipality may, of course, use the streets for the construction of a sewerage system, and it has been held that it has also the power of eminent domain over other property for this purpose.' And this is consistent with the idea that the construction of a sewerage system is a governmental func- tion. But in other cases it has been held that the power of eminent domain can be used for this purpose only when ex- pressly granted to the municipaUty.* Expense of Construction — Connection It is competent foi- the city to assess the expense of building a sewerage system for a certain street against the abutting property,^" and to require all persons residing on the street to connect with the sewer; ^^ and it has been held that no prop- erty owner can be prevented from tapping a municipal sewer.^* such discharge is necessary or manifestly desirable. City of Cold- water V. Tucker, 36 Mich. 474, 24 Am. Rep. 601. 8 Hildreth v. City of Lowell, 11 Gray (Mass.) 345. 9 Allen V. Jones, 47 Ind. 438. 10 Grlmmell v. City of Des Moines, 57 Iowa, 144, 10 N. W. 330; Hungerford v. City of Hartford, 39 Conn. 279 ; Walker v. City of Au- rora, 140 111. 402, 29 N. E. 741; City of Philadelphia v. Tryon, 35 Pa. 401 ; Wright v. City of Boston, 9 Cush. (Mass.) 233 ; City of Atchison v. Price, 45 Kan. 296, 25 Pac. 605 ; City of Springfield v. Sale, 127 111. 359, 20 N. E. 86 ; Hill v. Warrell, 87 Mich. 135, 49 N. W. 479. 11 City of Mobile v. Bienville Water Supply Co., 130 Ala. 379, 30 South. 446. The requirement for a sewer connection with a dwelling on premises abutting on a sewer in a city is within the power of the local authorities, and this requirement may be anticipated for municipal convenience, and as a necessary police regulation. Van Wagoner v. City of Paterson, 67 N. J. Law, 455, 51 Atl. 922. 12 Taylor v. City of Austin, 32 Minn. 247, 20 N. W. 157; Buchanan V. City of Duluth, 40 Minn. 402, 42 N. W. 204 ; Semple v. Mayor, etc., of City of Vicksburg, 62 Miss. 63, 52 Am. Rep. 181; Kranz v. City of Baltimore, 64 Md. 491, 2 Atl. 908. Eight of city to compensation, see City of Fergus Falls v. Boon, 78 Minn. 186, 80 N. W. 961; City of Fergus Falls v. Edison, 94 Minn. 121, 102 N, W. 218, 70 L. E. A. 238. 366 STREETS, SEWEKS, PAKKS, AND BUILDINGS (Ch. 11 Maintenance A sewer being once completed, it is the imperative municipal duty to see that it is properly cared for; and for failure to perform this function the municipality may become liable in damages.^' PARKS 112. Public parks and squares are proper objects of mu- nicipal concern, as means for the promotion of public health and comfort; and property may be acquired and held by a municipality for these rec- ognized public purposes. Public parks, such as Hyde Park and the Bois de Boulogne, and public squares, such as' Trafalgar Square and the Place de la Concorde, have long been recognized and maintained as municipal attractions and conveniences for the inhabitants and sojourners of a city. Modern sanitation has pi'oven them to be not only beautiful and attractive, but useful and neces- sary as active agents in promoting public health, so that not only in Paris, London, and New York, but in lesser cities, whole squares have been acquired from private owners in districts of congested population, buildings demohshed, and the ground prepared for trees, grass, flowers, and shrubs, which are grown there, not merely for ornamental, but sani- tary, purposes as well. Recognizing these as an important public use, the states have generally conferred upon munici- palities the sovereign power of eminent domain for the pur- pose of condemning property for the pubhcuse in parks and 13 Burnett v. City of New York, 36 App. DIv. 458, 55 N. T. Supp. 893. The sewers of a city are its private property and tlie general public of the state at large have no interest in them. Donahoe v. City of Kansas City, 136 Mo. 657, 38 S. W. 571; Clay v. City of St. Albans, 43 W. Va. 539, 27 S. E. 368, 64 Am. St. Rep. SS3; City of Fergus Falls v. Been, 78 Minn. 186, 80 N. W. 961. § 112) PARKS 367 squares, and have often authorized this to be done beyond the limits of the municipal corporation.^ Municipal Not Governmental Concern But though parks and squares are recognized as of public use, they are matters of municipal rather than governmental concern. They interest the people of the city rather than the general public. It has therefore been held that the establish- ment of parks and squares is within 4he discretion of the mu- nicipality.^" These cases are not easily reconciled with those which hold that a city may be compelled to construct drains and sewers, which are likewise means for the promotion of municipal health. Various states, however, according to lo- cal conditions, very nfituraliy hold different doctrines upon this subject; ^* and the rulings in the manufacturing states of Connecticut and Rhode Island would not probably be in ac- cprd with the decisions in agricultural states like Iowa, Mis- sissippi, and Texas. In the celebrated Detroit Park Case, the Supreme Court of Michigan ruled that the state could not compel the city of Detroit to expend money for the purchase and improvement of land for a municipal park. Judge Cooley declaring that "it is a fundamental principle in this state, rec- ognized and perpetuated by express provision of the Constitu- tion, that the people of every hamlet, town, and city of the state are entitled to the benefit of local self-government." ^' The right of home rule is not so strenuously asserted in all 1* Higginson v. Inhabitants of Town of Nahant, 11 Allen (Mass.) 530 ; Mayor v. Park Com'rs, 44 Mich. 602, 7 N. W. 180 ; In re Mayor, etc., of New York, 99 N. Y. 569, 2 N. E. 642; Mills, Em. Dom. §§ 49, 50. 15 People ex rel. Board of Park Com'rs of Detroit v. Common Coun- cil of Detroit, 28 Mich. 228, 15 Am. Rep. 202. 16 David V. Portland Water Committee, 14 Or. 98, 12 Pac. 174; People ex rel. Board of Park Com'rs v. Mayor of Detroit, 29 Mich. 347; People' ex rel. McCagg v. Mayor, etc., of City of Chicago, 51 111. 17, 2 Am. Rep. 278. 17 People ex rel. Board of Park Com'rs of Detroit v. Common Council of Detroit, supra. 368 STREETS, SEWERS, PARKS, AND BUILDINGS (Ch. 11 the states,*' and it cannot be doubted that in some of them, if the municipality should fail to make proper provision for parks necessary for the health of the people residing in the densely settled districts, the Supreme Court would sustain a legislative act compelling a city, in the interest of the public health, to acquire property for public parks, for the sanitation of this congested population. Cannot be Converted to Private Use It is obvious that the city may accept land dedicated for public parks and squares, and appropriate money out of the municipal treasury for its improvement. If, by the terms of the dedication, the property is expressly appropriated to these particular uses, the city may not alienate it or convert it to any other purpose, either public or private; ^° but, if an abso- lute fee is given to the municipality, its power over the prop- erty is unlimited for municipal purposes.^" It has according- ly been held that a city cannot authorize the erection of any private building upon a public square or park — even a railway station or depot V — and that a lease of the park for private use is void.^^ Whether a city may use portions of a park for 18 Perkins v. Slack, 86 Pa. 283; Darlington v. Mayor, etc., of City of New York, 31 N. Y. 164, 88 Am. Dec. 248. i» Gilman v. City of Milwaukee, 55 Wis. 328, 13 N. W. 266; City, •of Jacksonville v. Jacksonville Ry. Co., 67 111. 540; Price v. Thomp- son, 48 Mo. 363; City of Chicago v. Ward, 169 111. 392, 48 N. E. 927, 38 L. R. A. 849, 61 Am. St. Rep. 185. 20 Capdevielle v. New Orleans & S. F. R. Co., 110 La. 904, 34 South. 868; Brooklyn Park Com'rs v. Armstrong, 45 N. Y. 2.S4, 6 Am. Rep. 70; Van Ness v. Washington, 4 Pet. (U. S.) 232, 7 L. Ed. 842. 21 Mayor, etc., of City of Columbus v. Jaques, 30 Ga. 506; State V. Atkinson, 24 Vt. 448; Archer v. Salinas City, 93 Cal. 43, 28 Pac. 839; 16 L. R. A. 145; Northern Pac. Ry. Co. v. Lake, 10 N. D. 541, 88 N. W. 461. In Boston the construction of the subway necessitated the erection of railway stations oh Boston Common, and, in order that this might be done (it being prohibited by statute), a statute was passed au- thorizing this use of the public property. Prince v. Crocker, 166 Mass. 347, 44 N. E. 446, 32 L. R. A. 610. 22 Mayor, etc., of City of Macon v. HufC, 60 Ga. 221; Reichard v. Plinn, 20 Pa. Co. Ct. R. 129. But see Barter v. City of San Jose, § 112) PAEKS 369 public streets seems to be unsettled, some of the cases favor- ing ^^ and others opposing" that power. The cases may probably be reconciled upon the distinction that ways may be opened through a park for pleasure driving and riding, like Rotten Row in Hyde Park, but they may not be used for traf- fic purposes. Monuments and Fountains The city has control of the parks and squares, and may per- mit and provide for, or refuse, in its discretion, the erection of monuments, fountains, art galleries, and zoological build- ings,^ ° and may pass ordinances for the protection of animals and birds therein, whether confined or allowed to roam and range. Withdrawal of Dedication It is a general principle, as we have heretofore seen,''' that, until acceptance, a common-law dedication may be with- 141 Cal. 659, 75 Pac. 344 ; Gushee v. City of New York, 42 App. Div. 37, 58 N. Y. Supp. 967. An agreement made by a park commissioner, giving an individual tlie exclusive privilege of renting chairs in the -public parks of a city, under which chairs were substituted for park benches located under the trees, compelling the public to hire chairs, or sit in the sun, is illegal, as being in derogation of public rights. Kurtz t. Clausen, 38 Misc. Eep. 105, 77 N. Y. Supp. 97. But see Huff v. Macon, 117 Ga. 428, 43 S. E. 708. 23 Brodbine v. Revere, 182 Mass. 598, 66 N. E. 607. The trustees of a village have a right to inclose a public square so that teams and wagons cannot pass across it. Guttery v. Glenn, 201 111. 275, 66 N. E. 305. 2i Bolster V. Ithaca St. R. Co., 79 App. Div. 239, 79 N. Y. Supp. 597 ; Seward v. City of Orange, 59 N. J. Law, 331, 35 Atl. 799. 2 5 As to erection of a public building, see Fessler v Town of Union, 67 N. J. Eq. 14, 56 Atl. 272. 26 Ante, § 130. See Ayres v. Pennsylvania R. Co., 52 N. J. Law, 405, 20 Atl. 54; People v. Kingman, 24 N. Y. 559; Forsyth v. Dun- nagan, 94 Cal. 438, 29 Pac. 770. But a license conferred by a city, permitting another to erect a wall in the street, which, after erection, became a part of the street, did not confer on the licensee any property rights in the street, so as to preclude the city from revoking such license, and requiring the removal of the wall without compensation to such licensee. South COOL.MUN.CORP. — 24 370 STREETS, SBWEES, PARKS, AND BUILDINGS (Ch. 11 drawn ; and a dedicator may withdraw his dedication for mu- nicipal purposes at any time before the municipality expends money upon the property on the faith of the dedication.^'^ But he may not revoke a dedication after the city has made substantial expenditure in pursuance of the object of the dedi- cation."* PUBLIC BUILDINGS 113. Public buildings are essential for municipal purposes, and the power to acquire land therefor, and erect and maintain necessary buildings thereon, is in- herent in the municipal corporation. What may be the necessary buildings for any municipality, or whether any particular building may be appropriate for mu- nicipal uses, is largely a matter of fact, dependent upon pe- culiar municipal conditions ; but it is generally conceded that the city council possesses inherent power to provide appro- piate room for its own meeting, and for the transaction of the necessary municipal business.^' It is also obvious that it must provide a proper place for the detention of municipal pris- Highland Land & Improvement Co. v. Kansas City, 100 Mo. App. 518, 75 S. W. 383. 2' City of San Francisco v. Canavan, 42 Cal. 541; Logan v. Rose, 88 Cal. 263, 26 Pac. 106 ; Tillman v. People, 12 ulich. 401 ; Schmitz V. Village of Germantown, 31 111. App. 284; Hanson v. Eastman, 21 Minn. 509 ; Perry v. New Orleans, M. & C. R. Co., 55 Ala. 413, 28 Am. Rep. 740. 2 8 Crocket v. City of Boston, 5 Cush. (Mass.) 182. The dedicator and the city may jointly arrange to revoke a dedica- tion after acceptance, in case the rights of third persons have not vested by reason of the purchase of lots fronting on the property dedicated. Municipality No. 3 v. Levee Steam Cotton Press Co., 7 La. Ann. 270. 2 9 People ex rel. Mendmy v. Harris, 4 Cal. 9; Reynolds v. Mayor, etc., of City of Albany, 8 Barb. (N. Y.) 597; Vanover v. Davis, 27 Ga. 357; Torrent v. Muskegon, 47 Mich. 115, 10 N. W. 132, 41 Am. Kep. 715. § 113) PUBLIC BUILDINGS 371 oners,^" and also the proper housing and protection of its fire apparatus ; and it has been held, also, that a city school build- ing may be erected without express charter authority.'^ And in general it may be said that the municipality has implied power to erect and maintain any public building which is nec- essary for the performance of its public functions, though it has been declared that it has no right to incur a debt for such purpose. ^^ Usually, however, charter power to acquire nec- essary land and erect necessary buildings for municipal pur- poses is expressly conferred, under which these functions are clearly in the municipal discretion. Implied Power to furnish and Maintain Power to erect and maintain such buildings implies also the power to properly furnish, repair, and otherwise care for them, all of which are likewise within municipal discretion; and this discretion has been held to be absolute in the matter of furnishing and decorating the council room, and an injunc- tion accordingly refused to prevent the council from purchas- ing and hanging portraits of city fathers upon the walls of the council chamber.^' Appropriations for municipal buildings' and their furnishing have been also contested on the ground of extravagance and public inutility; and it has been held that, if the obvious primary object is to serve some private purpose, the expenditure will be enjoined,^* even though the public might gain some incidental benefit. But the courts have generally recognized the legislative discretion to deter- mine whether a building is needed,^^ and what expense the city may properly incur therefor, and have therefore refused 30 Long V. City of Elberton, 109 Ga. 28, 34 S. E. 333, 46 L. R. A. 428, 77 Am. St. Rep. 363; Felts v. Mayor, etc., of City of Memphis, 2 Head (Tenn.) 650 ; Davis v. Knoxville, 90 Tenn. 599, 18 S. W. 254. 31 Mayor, etc., of City of Cartersville v. Baker, 73 Ga. 686. 32 People ex rel. Menomy v. Harris, 4 Cal. 9. S3 Reynolds v. Mayor, etc., of City of Albany, 8 Barb. (N. Y.) 597. s* Bates v. Bassett, 60 Vt. 530, 15 Atl. 200, 1 L. R. A. 166. 3 City of Galveston v. Devlin, 84 Tex. 319, 19 S. W. 395; Ely v. City of Rochester, 26 Barb. (N. Y.) 133. 372 STREETS, SEWERS, PARKS, AND BUILDINGS (Ch. 11 to enjoin appropriations for buildings provided for prospective wants, or otherwise, in which the amount of the expenditure seemed unwise to the court and jury, when it was being made for a necessary municipal purpose.'* Municipal Discretion in Erection The power of the state to compel the erection of public buildings has been much mooted, and the general tendency of the decisions is to leave such things to the municipal discre- tion. It has accordingly been held that the city, being the county seat, may be authorized to levy taxes for the erection of county buildings. '' But in the matter of the magnificent city building of Philadelphia, involving the expenditure of mil- lions of dollars, it was held competent for the Legislature to empower the construction by commissioners "of all public buildings required to accommodate the courts for. all the mu- nicipal purposes within the city," and to call on the city annually for a sum suiBcient to meet the annual estimates on the building. The act also required the city to make assess- ments to meet these annual requisitions, when it had no voice, except in the Legislature, in determining the character of the building, or the personnel of the construction committee. This strenuous legislation was upheld by the Supreme Court of Pennsylvania over the protest of the city, and the levies compelled by mandamus, even after the Constitution of 1874,'* adopted pending the erection of the city hall, had for- bidden the Legislature "to interfere with any municipal im- provement, money, property or effects * * * or to levy taxes, or perform any municipal function whatever," and pro- vided that "no debt shall be contracted or liability incurred by any municipal commission except in pursuance of appropria- 3 8 Torrent v. Muskegon, 47 Mich. 115, 10 N. W. 132, 41 Am. Kep. 715; Greenbanks v. Boutwell, 43 Vt. 207; Greeley v. People, 60 111. 19 ; Spauldjng v. City of Lowell, 23 Pick. (Mass.) 71. 3 7 Callam v. Saginaw, 50 Mich. 7, 14 N. W. 677. But a distinc- tion should be noted between permission and compulsion. Id. "Art 3, § 20; art 15, §2. § 113) PUBLIC BUILDINGS 373 tions previously made by the municipal government," on the ground that this fundamental law did not interfere with ex- isting commissioners, plans, or contracts.*' The ruling in this case has not met with general approval, and has rarely been followed, the tendency of the courts being to hold that municipal buildings are matters of municipal, rather than gov- ernmental, concern.*" 8» Perkins v. Slack, 86 Pa. 283. *o Callam v. Saginaw, supra. STATE ex rel. JAMESON v. DEN- NX, 118 Ind. 382, 21 N. E. 252, 4 L. R. A. 79, Cooley, Gas. Mun. Corp. 4.; City of Evans villa v. State ex rel. Blend, 118 Ind. 426, 21 N. E. 267, 4 L. R. A. 93 ; State ex rfel. Holt v. Denny, 118 Ind. 449, 21 N. E. 274, 4 L. R. A. 65 ; PEOPLE ex rel. LB ROY v. HUBL- BUT, 24 Mich. 44, 9 Am. Rep. 103, Cooley, Cas. Mun. Corp. 36 ; State V. Seavey, 22 Neb. 455, 35 N. W. 228. 374, . TOKTS (Ch. 12 CHAPTER XII TORTS 114. Civil liiability. 115-117. Governmental and Municipal Duties Distinguished. 118. Care of Streets. 119. Obstructions. 120. Sidewalks. 121. Bridges and Viaducts. 122. Drains and Sewers. 123. Respondeat Superior. 124. Ultra Vires. CIVIL LIABILITY 114. A municipal corporation may be liable to a civil action for a wrong committeid or permitted by it causing private injury. As we have heretofore seen,^ a municipal corporation may be imposed upon a community a^ijist its '^ish, and its func- tions prescribed without the consent of the citizens, and thus made an agency of the state for governmental purposes. It is also obvious that the state is not subject to prosecution, nor to action, save by its own consent ; and it has been {bought anom- alous by some that a compulsory agent of the state should be liable either civilly or criminally for trespass or negligence. But we have also seen ^ thatjji municipality is usually created at the request of the community, and that it exists not only for the public welfare, but also for the benefit of its citizens ;J that it is in certain aspects a distinct person, and a member of society, and as such is subject to the general law which is "prescribed by the supreme power in the state," " and which any citizen or person violates at peril. A municipality, being not only a public agency, but also a quasi private individual, is therefore subject to the law; and it is too well settled by re- 1 Ante, § 11. 2 Ante, § 12. si Bl. Comm. p. 44. § 114) CIVIL LIABILITY 375 peated adjudication, both in England and America, to admit of question that a municipality for its wrong to the public may be prosecuted, and for its torts against individuals may be sued in civil action for damages like a private corporation.* A municipality, being created by the state and endowed with certain functions for the public welfare, must perform those functions, or suffer indictment for its nonfeasance or mis- feasance.^ Also, being a member o^ society, and empowered not only to exercise governmental functions, but also to own property and to deal with other corporations and with natural persons upon terms of equality, the municipality must not only respect the law in its contracts, but also in its noncontract re- lations with others; and where any one suffers an injury by the neglect of the municipality to discharge any absolute duty such person has an action against the municipality for the re- dress of the injury.* * Rex V. Oxfordshire, 16 East, 223; State v. City of Portland, 74 Me. 268, 43 Am. Rep. 586 ; State v. Town of Murfreesboro, 11 Humph. (Tenn.) 217; Commonwealth v. City of Newburyport, 103 Mass. 129; Barnes v. Dist. of Columbia, 91 U. S. 540, 23 L. Ed. 440; Worley v. Inhabitants of Town of Columbia, 88 Mo. 106 ; Curran v. Boston, 151 Mass. 505, 24 N. E. 781, 8 t. R. A. 243, 21 Am. St. Rep. 465; State v. Shelbyville Corp., 4 Sneed (Tenn.) 176; Lloyd v. Mayor, etc., of City of New York, 5 N. Y. 369, 55 Am. Dec. 347. But see State v. Town of Burlington, 36 Vt. 521. 5 Commonwealth v. Bredin, 165 Pa. 224, 30 Atl. 921; Common- wealth V. Lansford, 14 Pa. Co. Ct. R. 376; State v. Shelbyville Corp., supra; Commonwealth v. Trustees of Hopkinsville, 7 B. Mon. (Ky.) 38. 6 Kleopfert v. Minneapolis, 90 Minn. 158, 95 N. W. 908 ; Rowland V. Superintendents of Poor for Kalamazoo County, 49 Mich. 553, 14 N W. 494; Pennoyer v. City of Saginaw, 8 Mich. 534; Worden v. City of New Bedford, 131 Mass. 23, 41 Am. Rep. 185; Moulton v. In- habitants of Scarborough, 71 Me. 267, 36 Am. Rep. 308. In Nebraska the liability of a city for injuries caused is exclusively statutory. Goddard v. City of Lincoln, 69 Neb. 594, 96 N. W. 273. 376 TORTS (Ch. 12 GOVERNMENTAL AND MUNICIPAL DUTIES DIS- TINGUISHED 115. No action lies at common law against a municipal cor- poration for an injury resulting from the perform- ance or nonperformance by it of a purely govern- mental duty. 116. A municipality, in the exercise of its purely municipal functions, is subject to the same rules of liability for torts as a private corporation. 117. A mxmicipality, when charged in its corporate charac- ter with the performance of a municipal function in regard to governmental aifairs, is, by the^pre- ponderance of judicial opinion, civilly liable for in- juries resulting from misfeasance or nonfeasance of such municipal duty. The double nature of the municipal corporation, seen in its purely public and governmental functions on the one side and in its municipal and quasi private functions on the other, calls for the application of different rules of law as to the effect of its corporate acts upon natural persons and other corporations^ In its purely governmental character a municipality closely resembles a quasi corporation, and in this aspect the law for it is practically the same as for a quasi corporation as to the rea- son and extent of its exemption from liability for injuries suf- fertd by others.' It is performing a public function — dis- 1 KANSAS CITY v. LBMBN, 57 Fed. 905, 6 C. C. A. 627, Cooley.. Cas. Mun. Corp. 275; Snider v. City of St. Paul, 51 Minn. 466, 53 N. W. 763, 18 L. R. A. 151; Nicholson v. City of Detroit, 126 Mich. 246, 88 N. W. 695, 56 L. R. A. 601 ; Fisher v. City of New Bern, 140 N, G. 506, 53 S. B. 342, 5 L. R. A. (N. S.) 542, 111 Am. St. Rep. 857; Rose V. City of Toledo, 24 Ohio Cir. Ct. R. 540 ; Bailey v. Mayor, etc., of City of New York, 3 Hill (N. Y.) 531, 38 Am. Dec. 669; Welsh v. Village of Rutland, 56 Vt. 228, 48 Am. Rep. 762 ; Mayor, etc., of City of Helena v. Thompson, 29 Ark. 569; City of Denver v. Dunsmore, 7 Colo. 328, 3 Pac. 705. :§§ 115-117) GOVERNMENTAL AND MUNICIPAL DUTIES 377 charging a governmental duty of the state for the public wel- fare ; and out of this no action can arise unless given by stat- ute.^ The line separating governmental from municipal duties cannot always be plainly seen; but there are certain functions performed by municipal corporations which are confessedly public, out of which no private action can arise,ynot only be- ■cause the state is sovereign and the municipality its agent," bulv^so for the reason that the constant fear of liability for damages while acting for the public welfare would prevent proper performance of these public functions by the corpora- tion. Public Functions Prominent among these governmental functions are: (1) .The prtservation of the public peace; (2) the preservation of the public health; (3) punishment of criminals; (4) prevent- ing destruction by fire; (5) furnishing public education; (6) providing for the poor. Accordingly, it is held that a city is not liable for negligence or misconduct of its police officers,^" 8 Hickox V. City of Cleveland, 8 Ohio, 543, 32 Am. Dec. 730 ; Stew- art V. City of New Orleans, 9 La. Ann. 461, 61 Am. Dec. 218 ; City of Richmond v. Long's Adm'rs, 17 Grat. (Va.) 375, 94 Am. Dec. 461; Prather v. City of Lexington, 13 B. Men. (Ky.) 559, 56 Am. Dec. 585; Danaher v. City of Brooklyn, 51 Hun, 563, 4 N. Y. Supp. 312; Moffltt V. Asheville, 103 N. C. 237, 9 S. E. 695, 14 Am. St. Rep. 810. 9 Dargan v. Mayor, etc., of City of Mobile, 31 Ala. 469, 70 Am. Dec. 508; Fowle v. Alexandria, 3 Pet.,(U. S.) 398, 7 L. Ed. 719 ; City of Anderson v. East, 117 Ind. 126, 19 N. E. 726, 2 L. R. A. 712, 10 Am. St. Rep. 35; Forsyth v. Mayor, etc., of City of Atlanta, 45 Ga. 152, ' 12 Am. Rep. 576; Harman v. City of St. Louis, 137 Mo. 494, 38 S. W. 1102; Beers, use of Platenius, v. Arkansas, 20 How. (U. S.) 527, 15 X,. Ed. 991. 10 City of Caldwell v. Prunelle, 57 Kan. 511, 46 Pac. 949; KANSAS CITY V. LEMEN, 57 Fed. 905, 6 C. G. A.' 627, Cooley, Cas. Mun. Corp. :275; Betham v. City of Philadelphia,. 196 Pa. 302, 46 Atl. 448; Gray V. City of Griffin, 111 Ga. 361, 36 S. E. 792, 51 L. R. A. 131 ; Lahner V. Incorporated Town of WilUams, 112 Iowa, 428, 84 N. W. 507; Cal- well V. City of Boone, 51 Iowa, 687, 2 N. W. 614, 33 Am. Rep. 164; Easterly v. Incorporated Town of Irwin, 99 Iowa, 694, 68 N. W. 919: McAuIiffe V. City of Victor, 15 Colo. 337, 62 Pac. 231; Brown's Adm'r V. Town of Guyandotte, 34 W. Va. 299, 12 S. B. 707, 11 L. R. A. 121 ; !La Clef V. City of Concordia, 41 Kan. 323, 21 Pac. 272, 13 Am. St. 378 TOETS (Ch. 12 for they are state officers, rather than municipal; and that it is not liable for failure to disperse a mob or suppress a riot.^^ Nor is a city liable for the misconduct of its health department, or any of its health officers,*^ since ^anita^on is Rep. 285 ; Moffitt v. Ashevllle, 103 N. C. 237, 9 S. B. 695, 14 Am. St. Rep. 810; Corning v. City of Saginaw, 116 Mich. 74, 74 N. W. 307, 40 L. R. A. 526; Hill v. City of Boston, 122 Mass. 344, 23 Am. Rep. 332 ; White v. Board of Com'rs of Sullivan County, 129 Ind. 396, 28 N. E. 846; Davis v. Knoxville, 90 Tenn. 599, 18 S. W. 254; Perkins V. City of New Haven, 53 Conn. 214, 1 Atl. 825 ; Taylor v. City of Owensboro, 98 Ky. 271, 32 S. W. 948, 56 Am. St Rep. 361; Pollock's Adm'r v. Louisville, 18 Bush (Ky.) 221, 26 Am. Rep. 260; Culver v. City of Streator, 130 111. 238, 22 N. E. 810, 6 L. R. A. 270; Gullikson V. McDonald, 62 Minn. 278, 64 N. W. 812; McElroy v. City Council of Albany, 65 Ga. 387, 38 Am. Rep. 791: Whitfield v. City of Paris, 84 Tex. 431, 19 S. W. 566, 15 L. R. A. 788, 81 Am. St. Rep. 69 ; Peck. V. City of Austin, 22 Tex. 261, 78 Am. Dec. 261; Kies v. City of Erie, 135 Pa. 144, 19 Atl. 942, 20 Am. St. Rep. 867; Twyman's Adm'rs v. Board of Council of Frankfort, 117 Ky. 518, 78 S. W. 446, 64 L. R. A. 572, 4 Ann. Cas. 622. Police officers appointed by a city in obedience to a statute are not agents or servants for whose torts the city will be liable under the rule of respondeat superior. WoodhuU v. City of New York, 150 N. Y. 450, 44 N. E. 1038. 11 Gianfortone v. City of New Orleans (C. C.) 61 Fed. 64, 24 L. R. A. 592; Hart v. Bridgeport, 13 Blatchf. (U. S.) 289, Fed. Cas. No. 6,149; Prather v. City of Lexington, 13 B. Mon. (Ky.) 559, 56 Am. Dec. 585; Chicago League Ball Club v. City of Chicago, 77 111. App. 124 ; Bartlett v. Town of Clarksburg, 45 W. Va. 393, 81 S. E. 918, 43 L. R. A. 295, 72 Am. St. Rep. 817; Western College of Homeopathic Medicine v. City of Cleveland, 12 Ohio St. 375. But a state may constitutionally compel its counties and cities to indemnify against loss of property arising from mobs and riots. Pennsylvania Co. v. City of Chicago (C. C.) 81 Fed. 317; Spring Val. Coal Co. V. Spring Valley, 65 111. App. 571 ; City of lola v. Birnbaum, 71 Kan. 600, 81 Pac. 198; Adams v. City of Salina, 58 Kan. 246, 48 Pac. 918 ; City of Chicago v. Pennsylvania Co., 119 Fed. 497, 57 C. C. A. 509; Underbill v. City of Manchester, 45 N. H. 214; Louisiana ex rel. Folsom v. New Orleans, 109 U. S. 285, 3 Sup. Ct. 211, 27 L. Ed. 936. 12 City of Dalton v. Wilson, 118 Ga. 100, 44 S. E. 830, 98 Am. St. Rep. 101 ; Gilboy v. City of Detroit, 115 Mich. 121, 73 N. W. 12S ; Wyatt V. City of Rome, 105 Ga. 312, 31 S. E. 188, 42 L. R. A. ISO, 70 Am. St. Rep. 41 ; Tollef son v. City of Ottawa, 228 111. 134, 81 X. E. 828, 11 L. R. A. (N. S.) 990 ; Summers v. County of Daviess, 103 Ind. §§ 115-117) QOTERNMENTAL AND MUNICIPAL DUTIES 379 a public, rather than a municipal, duty. And since the main- tenance of public peace and enforcement of good order may require the punishment of evildoers by a municipality, it is the general doctrine that no action will lie against the corpora- tion for the negligence or rnisconduct of its officers in the con- finement or punishment of criminals;^" but it has been in- timated in North Carolina,^* and held in Virginia,^" that a city or town may be liable for failure to keep its jail or cala- boose in proper condition and under the care of competent servants. Though it is not so plainly seen to be for the public 262, 2 N. E. 725, 53 Am. Rep. 512; Love v. City of Atlanta, 95 Ga. 129i 22 S. E. 29, 51 Am. St. Rep. 64; Ogg v. City of Lansing, 35 Iowa, 495, 14 Am. Rep. 499 ; Bryant v. City of St. Paul, 33 Minn. 289, 23 N. W. 220, 53 Am. Rep. 31 ; Brown v. Inhabitants of Vinalhaven, 65 JVIe. 402, 20 Am. Rep. 709; Whitfield v. City of Paris, 84 Tex. 431, 19 S. W. 566, 15 L. R. A. 783, 31 Am. St. Rep. 69. A city is not liable for the trespass of its mayor, police officers, and city physician in quarantining and detaining a body of yellow fever suspects in a hotel. City of San Antonio v. White (Tex. Civ. App.) 57 S. W. 858. A municipal corporation is not liable for the value of property destroyed by mistake on the order of its health officers. Lowe v. Conroy, 120 Wis. 151, 97 N. W. 942, 66 L. R. A. 907, 102 Am. St. Rep. 983, 1 Ann. Cas. 341. 13 La Clef V. City of Concordia, 41 Kan. 323, 21 Pac. 272, 13 Am. St. Rep. 285 ; Royce v. Salt Lake City, 15 Utah, 401, 49 Pac. 290 ; Nis- bet V. City of Atlanta, 97 Ga. 650, 25 S..E. 173; Curran v. City of Boston, 151 Mass. 505, 24 N. E. 781, 8 L. R. A. 243, 21 Am. St. Rep. 465 ; GuUikson v. McDonald, 62 Minn. 278, 64 N. W. 812. A city, in constructing and maintaining a workhouse, acts in a governmental, not a municipal, capacity, and is not, therefore, liable for injuries received by a prisoner through the wrongful acts of the workhouse overseer. Rose v. City of Toledo, 24 Ohio Cir. Ct. R. 540. 11 Shields v. Town of Durham, 118 N. G. 450, 24 S. E. 794, 36 L. R. A. 293 ; Coley v. City of Statesville, 121 N. C. 301, 28 S. E. 482. 15 Edwards v. Town of Pocahontas (0. C.) 47 Fed. 268. In erecting and maintaining a city prison the municipality is ex- ercising a purely governmental function. Gray v. City of Griffin, 111 Ga. 361, 36 S. E. 792, 51 L. R. A. 131. Contra, Blake v. City of Pontiac, 49 111. App. 543. See, also, Snider T. City of St. Paul, 51 Minn. 466, 53 N. W. 763, 18 L. R. A. 151; Eddy V. Village of Ellicottville, 35 App. Div. 256, 54 N. Y. Supp. 801. 380 TORTS (Ch. 12 welfare, rather than for the benefit of the citizens of the mu- nicipality, that firgs should be extinguished and private prop- erty saved, yet the courts agree that it is a governmental duty to stop conflagrations, and that a municipality cannot be held liable for either the negligence or misconduct of its fire de- partment, or any member thereof; ^° also that a city cannot be held liable for the failure to provide adequate fire apparatus or sufficient water to extinguish fire,^' though a city has been held liable to an engineer for its negligence in putting him. 18 Wheeler v. City of Cincinnati, 19 Ohio St. 19,. 2 Am. Rep. 368; Frederick v. City of Columbus, 58 Ohio St. 538, 51 N. B. 35; Davis V. City of Lebanon, lOS Ky. 688, 57 S. W. 471 ; CUNNINGHAM v. CITY OF SEATTLE, 40 Wash. 59, 82 Pae. 143, 4 L. R. A. (N. S.) 629, Cooley, Cas. Mun. Corp. 280, rehearing denied 42 Wash. 134. 84 Pac. 641, 4 L. R. A. (N. S.) 629, 7 Ann. Cas. 805; Fisher v. City of Boston, 104 Mass. 87, 6 Am. Rep. 196; Jewett v. City of New Haven, 38 Conn. 368, 9 Am. Rep. 382 ; Grant v. City of Erie, 69 Pa. 420, 8 Am. Rep. 272; Hayes v. City of Oshkosh, 33 Wis. 314, 14 Am. Rep. 760 ; Heller v. Mayor, etc., of Sedalia, 53 Mo. 159, 14 Am. Rep. 444; Greenwood v. Louisville, 13 Bush (Ky.) 226, 26 Am. Rep. 263 ; Rob- inson V. City of Evansville, 87 Ind. 334, 44 Am. Rep. 770; Wilcox v. City of Chicago, 107 111. 337, 47 Am. Rep. 434; Welsh v. Village of Rutland, 56 Vt. 228, 48 Am. Rep. 762; Burrill v. Augusta, 78 Me. 118, 3 Atl. 177, 57 Am. Rep. 788 ; Grube v. City of St. Paul, 34 Minn. 402, 26 N. W. 228. While driving along the street a horse was frightened by an em- ploys of the fire department and ran away. The city was sued to recover damages, but it was held that there could be no recovery, as the employes of the fire department were public ofiicers engaged in a public duty. Saunders v. City of Ft. Madison, 111 Iowa, 102, 82 N. W. 428; Lawson v. City of Seattle, 6 Wash. 184, 33 Pac. 347; Dodge V. Granger, 17 R. I. 664, 24 Atl. 100, 15 L. R. A. 781, 33 Am. St. Rep. 901. 17 Mendel v. City of Wheeling, 28 W. Va. 233, 57 Am. Rep. 664;. Springfield Fire & Marine Ins. Co. v. Village of Keeseville, 148 N. Y. 46, 42 N. E. 405, 30 L. R. A. 660, 51 Am. St. Rep. 667; Tainter v. City of Worcester, 123 Mass. 311, 25 Am. Rep. 90 ; Akin v. Akin, 78 Ga. 24, 1 S. E. 267; Heller v. Mayor, etc., of Sedalia, 53 Mo. 159, 14 Am. Rep. 444; Wheeler v. City of Cincinnati, supra; Vanhorn v. City of Des Moines, 63 Iowa, 447, 19 N. W. 293, 50 Am. Rep. 750;. Grant v. City -of Erie, supra; Foster v. Lookout Water Co., 3 Lea (Tenn.) 42; Witheril v. Mosher, 9 Hun (iSf. Y.) 412. The power resting in a municipality to provide for a supply of water is, in Its nature, legislative and governmental, and, if not ex- §§ 115-117) GOVERNMENTAL AND MUNICIPAL DUTIES 381 to work upon a defective engine.^* So, also, it is held that no action will lie against a municipality for injury resulting from the negligence or misconduct of any of its agents or employes in connection with its public school buildings;^* but, notwithstanding the numerous adjudications to this ef- fect, it is glausib^ contended that where a city with suffi- cient funds is charged with proper care of its school property it ought to be liable for failure to provide a safe place for teachers and pupils.^" Whenever a city is charged with the duty of caring for the poor, no private action can be main- tained against it for misfeasance or nonfeasance in the per- formance of this function ; ^^ it is a public charity, govern- mental in its character, and no liability against the city will arise out of this relation.'"' It has repeatedly been adjudged also that no private action will lie against the city either for failure to enforce its own laws and ordinances,*" or from its ercised, and in consequence loss results to property owners by fires, the municipality is not liable for damages. Planters' Oil Mill v. Monroe Waterworks & Light Co., 52 La. Ann. 1243, 27 South. 684. See Springfield Fire & Marine Ins. Co. v. Village of Keeseville, 6 Misc. Rep. 233, 26 N. Y. Supp. 1094. But see Springfield Fire & Ma- rine Ins. Co. V. Village of Keeseville, 80 Hun, 162, 29 N. Y. Supp. 1130. 18 City of Lafayette v. Allen, 81 Ind. 166. i» Hill V. City of Boston, 122 Mass. 344, 23 Am. Rep. 332; Howard V. City of Worcester, 153 Mass. 426, 2T N. E. 11, 12 L. B. A. 160, 25 Am. St. Rep. 651. Contra, McCaughey v. Tripp, 12 B. I. 449. 20 Briegel v. City of Philadelphia, 135 Pa. 451, 19 Atl. 1038, 20 Am. St. Bep. 885. 21 Neff V. Inhabitants of Wellesley, 148 Mass. 487, 20 N. E. Ill, 2 L. R. A. 500; Maxmilian v. Mayor, etc., of City of New York, 62 N. Y. 160, 20 Am. Rep. 469; Curran v. City of Boston, 151 Mass. 505, 24 N. E. 781, 8 L. R. A. 243, 21 Am. St. Rep. 465. 22 Maxmilian v. Mayor, etc., of City of New York, supra; Benton V. Boston City Hospital, 140 Mass. 13, 1 N. E. 836, 54 Am. Rep. 436; Carrington v. City of St. Louis, 89 Mo. 208, 1 S. W. 240, 58 Am. Bep. 108 ; City of Eichmond t. Long's Adm'rs, 17 Grat. (Va.) 375, 94 Am. Dec. 461. 2 3 Davis V. City Council of Montgomery,. 51 Ala. 139, 23 Am. Bep. 545; ADDINGTON v. TOWN OF LITTLETON, 50 Colo. 623, 115 Pac. 896, 34 L. R. A. (N. S.) 10i2, Ann. Cas. 1912C, 753 ; Cooley Cas. Mun. Corp. 279 ; Marth v. City of Kingfisher, 22 Okl. 602, 98 Pac. 436, 18 L. B. A. (N. S.) 1238; Miller & Meyers v. City of Newport 382 TORTS (Ch. 12 action or nonaction in any other matter resting in the discre- tion of the corporation as a governmental agency; ^* and so damages have been refused for injuries resulting from forbid- den fireworks,^" from a public nuisance,^" for failure to build sewers or drains,^^ from the adoption of a defective plan of sewerage,^' and from doing or failing to do any act not mm- News, 101 Va. 432, 44 S. E. 712; Wheeler v. City of Plymouth, 116 Ind. 158, 18 N. E. 532, 9 Am. St. Rep. 837 ; Moran v. Pullman Palace Car Co., 134 Mo. 641, 36 S. W. 659, 33 L. R. A. 755, 56 Am. St. Rep. 543; Harman v. City of St. Louis, 137 Mo. 494, 38 S. W. 1102; Levy V. City of New Tork, 1 Sandf. (N. T.) 465; Fowle v. Alex- andria, 3 Pet. (U. S.) 398, 7 L. Ed. 719; Trammel! v. Town of Rus- sellville, 34 Ark. 105, 36 Am. Rep. 1; Robinson v. Greenville, 42 Ohio St. 625, 51 Am. Rep. 857; Tarbutton v. Town of Tennille, 110 Ga. 90, 35 S. ,E. 282; Ball v. Town of Woodbine, 61 Iowa, 83, 15 N. W. 846, 47 Am. Rep. 805. 2 4 Burford v. City of Grand Rapids, 53 Mich. 98, 18 N. W. 571, 51 Am. Rep. 105; Mills v. City of Brooklyn, 32 N. Y. 489; Moore V. City of Cape Girardeau, 103 Mo. 470, 15 S. W. 755 ; Smith v. Sel- insgrove, 199 Pa. 615, 49 Atl. 213. 2 5 McDade v. City of Chester, 117 Pa. 414, 12 Atl. 421, 2 Am. St. Rep. 681. A city is not liable for injuries caused by a discharge of fireworks because the city authorities suspended, for the day of the accident, an ordinance forbidding the discharge of fireworks. Fifield v. Com- mon Council of Phoenix, 4 Ariz. 283, 36 Pac. 916, 24 L. R. A. 430. But see Speir v. City of Brooklyn, 139 N. Y. 6, 34 N. B. 727, 21 L. R. A. 641, 36 Am. St. Rep. 664, where the city was held liable. See, also, Landau v. New York, 90 App. Div. 50, 85 N. Y. Supp. 616. 2 6 McCrowell v. Mayor, etc., of Town of Bristol, 5 Lea (Tenn.) 685; Arnold v. City of Stanford, 113 Ky. 852, 69 S. W. 726; Wake- field V. Newell, 12 R. I. 75, 34 Am. Rep. 598. A city is not liable for permitting a nuisance to exist on private property within its limits. Board of Councilmen of Frankfort v. Commonwealth, 25 Ky. Law Rep. 311, 75 S. W. 217. See City of Dalton V. Wilson, 118 Ga. 100, 44 S. E. 830 ; Wood v. City of Hinton, 47 W. Va. 645, 35 S. E. 824; Hill v. City of New York, 139 N. Y. 495, 34 N. E. 1090; Butz v. Cavanaugh, 137 Mo. 503, 38 S. W. 1104, 59 Am. St. Rep. 504. 2 7 Horton v. Mayor, etc., of City of Nashville, 4 Lea (Tenn.) 47, 40 Am. Rep. 1; Wakefield v. Newell, supra. 2 8ChUd V. City of Boston, 4 Allen (Mass.) 41, 81 Am. Dec. 680; Johnston v. District of Columbia, 118 U. S. 19, 6 Sup. Ct. 923, 30 L. Ed. 75 ; Mills v. City of Brooklyn, 32 N. Y. 489. §§ 115-117) GOVERNMENTAL AND MUNICIPAL DUTIES 3S3 isterial, but legislative or judicial, in its character.^® This ex- emption from liability is based, like the former one, upon the idea that the decision of this question is the performance of a governmental function. Same — Statutory Liability Action may be given by statute for injuries resulting from any of the foregoing causes, and for some of them the right exists at present in some of the states. The measure and extent of this right can be determined only by consulting the state statutes. But exemption from private action does not imply exemption from public prosecution, as municipal cor- porations are generally regarded as indictable for misfeasance and nonfeasance of public functions obviously enjoined for the public welfare.^" Municipal Functions It is in the field of torts that the dual nature of the munici^ pal corporation becomes most conspicuous. In one aspect, as we have seen, the municipality confessedly occupies the atti- tude of a sovereign, and enjoys sovereign exemption from lia- bility for injuries resulting from its acts and omissions. The courts also concur in deciding that in its other aspect as a cor- poration exercising solely municipal functions it is subject to the same rules of liability for torts as a private corporation.'^ 2 9 City of Detroit v. Beckman, 34 Blicli. 125, 22 Am. Rep. 507; Terry v. City of Richmond, 94 Va. 537, 27 S. E. 429, 38 L. R. A. 834; Stevens v. City of Muskegon, 111 Mich. 72, 69 N. W. 227, 36 L. R. A. 777. 30 1 JicClain, Cr. Law, § 183; McCrowell v. Bristol, supra, note 26; People v. Corporation of Albany, 11 Wend. (N. Y.) 539, 27 Am. Dec. 95; Mayor, etc., of Town of Chattanooga v. State, 5 Sneed (Tenn.) 578; State v. Mayor, etc., of Town of Murfreesboro, 11 Humph. (Tenn.) 217; Eastman v. Meredith, 36 N. H. 284, 72 Am. Dec. 302; Brayton y. City of Fall River, 113 Mass. 218, 18 Am. Rep. 470. 31 Bailey v. Mayor, etc., of City of New York, 3 Hill (N. Y.) 531, 38 Am. Dec. 669: Meares v. Commissioners of Town of Wilmington, 31 N. C. 73, 49 Am. Dee. 412; City of Logansport v. Dick, 70 Ind. 65, 36 Am. Rep. 166; Welsh v. Village of Rutland, 56 Vt. 228, 48 Am. Rep. 762 ; 2 Thomp. Neg. p. 738. 384 T0KT3 (Ch. 12 These rules are thus stated by Mr. Clark: "A private cor- poration is liable for the torts of its servants and agents com- mitted in the course of their employment to the same extent as a natural person would be. And it may be liable for wrongs involving a mental element — as malicious wrongs, frauds, etc. ; but it cannot commit a tort like slander, which, from its na- ture, cannot be committed by deputy." '^ This rule of lia- bility prevails against a njunicipal corporation in regard to those duties which arise from the grant of a special power to be used for quasi private purposes,^' in the exercise of which the municipality is a corporate person, a member of society, and not a governmental agency. Same — Municipal Property and Business In an early New York case,'* which has been quoted with approval both in England and America, the doctrine of lia- bility of a municipality in regard to its quasi private real prop- erty was thus stated : "The citizen and the municipal body, in respect to their several possessions of real estate, stand upon a footing of equality. Neither is the privileged owner, and each must fulfill the same duties in respect to the other." This rule has been applied to. a poor farm '" kept by a municipality, and also to a city cemetery '° yielding profit to the municipality. 82 Clark, Priv. Corp. § 69. See Howland v. Inhabitants of May- nard, 159 Mass. 434, 34 N. E. 515, 21 L. R. A. 500, 38 Am. St. Rep. 445. 3 3 Hunt V. Boston, 183 Mass. 308, 67 N. E. 244; City of Chicago T. Selz Schawb & Co., 104 111. App. 376, affirmed 202 111. 545, 67 N. E. 386. See, also, Bailey v. Mayor, etc., of City of New York, supra; Baijmgard v. Mayor, etc, of City of New Orleans, 9 La. 119, 29 Am. Dec. 437 ; Nevins v. City of Peoria, 41 111. 502, 89 Am. Dec. 392; Hunt v. City of Boonville, 65 Mo. 620, 27 Am. Rep. 299; Thayer v. City of Boston, 19 Pick. (Mass.) 511, 31 Am. Dec. 157; Mitchell V. City of Rockland, 41 Me. 363, 66 Am. Dec. 252. 3* Bailey v. Mayor, etc., of City of New York, supra. 3 5 Moulton V. Inhabitants of Scarborough, 71 Me. 267, 36 Am. Rep. 508. But see 'Maxmilian v. Mayor, etc., of City of New York, 62 N. Y. 160, 20 Am. Rep. 468; Neff v. Inhabitants of Wellesley, 148 ilass. 487, 20 N. E. Ill, 2 L. R. A. 500. 3 6 City of Toledo v. Cone, 41 Ohio St. 149, §§ 115-117) GOVEKNMENTAL AND MUNICIPAL DUTIES 385 The same rule has also been applied to a municipality owning or controlling wharves, docks; and piers.^' This rule applies also where the city supplies water '* or light ^' for compensa- tion, and so where it maintains a public market.*" In a lead- ing New York Case *^ Chief Justice Nelson, speaking of the municipal power to construct and maintain waterworks for municipal use, declared: "If the grant is for the purpose of private advantage and emolument, though the public may de- rive a common benefit therefrom, the corporatibn quoad hoc is to be regarded as a private company. It stands on the same footing as would any individual or body of persons upon whom the like special franchise had been conferred." And this rule seems to apply to any business undertaken by a municipality under its charter powers.*^ It is a corporation for profit, and justly subject to the same rules as a private corporation. 87 Seaman v. Mayor, etc., of City of New York, 80 N. X. 239, 36 Am. Eep. 612; City of Pittsburgh v. Grier, 22 Pa. 54, 60 Am. Dec. 65 ; City of JefCersonville v. Louisville & J. Steam Ferry Co., 27 Ind. 100, 89 Am. Dec. 495 ; City of Petersburg v. Applegarth's Adm'r, 28 Grat (Va.) 321, 26 Am. Eep. 357 ; Mayor, etc., of City of Memphis V. Klmbrough, 12 Heisk. (Tenn.) 133; Manhattan Transp. Co. y. City of New Xork (D. C.) 37 Fed. 160 ; Smith v. Havemeyer (0. C.) 36 Fed. 927; Barber v. Abendroth, 102 N. Y. 406, 7 N. B. 417, 55 Am. Rep. 821; Augusta City Council v. Hudson, 88 Ga. 599, 15 S. E. 678; Id., 94 Ga. 135, 21 S. E. 289 (as to toll bridge); Whitfield v. Town of CarroUton, 50 Mo. App. 98 ; The Giovanni v. City of Phil- adelphia (D. C.) 59 Fed. 303 (tug boat). 3s City of Chicago v. Selz, Schwab & Co., 202 111. 545, 67 N. E. 386; City Council of Augusta v. Lombard, 99 Ga. 282, 25 S. E. 772; Whitfield V. Town of CarroUton, 50 Mo. App. 98; Bailey v. Mayor, etc., of City of New York, 3 Hill (N. Y.) 531, 38 Am. Dec. 669; Stock V. City of Boston, 149 Mass. 410, 21 N. E. 871, 14 Am. St. Rep. 430 ; Aldrieh v. Tripp, 11 R. I. 141, 23 Am. Rep. 434. 39 Western Sav. Fund Soc. v. City of Philadelphia, 31 Pa. 175, 72 Am. Dec. 730; Bodge v. City of Philadelphia, 167 Pa. 492, 31 Atl. 728. 40 Mayor, etc., of City of Savannah v. CoUens, 38 Ga. 334, 95 Am. Dec. 398 ; Town of SufEolk y. Parker, 79 Va. 660, 52 Am. Rep. 640. 41 Bailey v. Mayor, etc., of City of New York, 3 Hill, 531, 38 Am. Dec. 669. 42 2 Thomp. Neg. p. 738. COOL.MUN.COBP. — 25 386 TOUTS (Ch. 12 Municipal Performance of Governmental Duty A real difficulty arises when we come to consider the lia- bility of the municipality for misfeasance or nonfeasance in relation to duties of a governmental character, with the per- formance of which the municipality has been charged in its corporate capacity. Here we enter the disputed boundary of municipal torts. In the field of solely governmental duties the law is plain and well recognized. In the performance of strictly governmental functions the municipality cannot com- mit a tort. Equally well settled is it that in matters of strictly municipal concern a municipality is subject to the same law as a private corporation. But in the border land between these two open fields, where the dual nature of a municipality appears in both phases, unnumbered contests have occurred over the legal effect of municipal nonfeasance, misfeasance, and even malfeasance, which have been variously decided in America ; so that it may well be said that the law on this sub- ject is. unsettled,; the boundary line of liability is not estab- lished.^^ The prolific source of contention in this border land has been the municipal control of streets and sewers. The public highways are the special care of the state, inside as well as outside our cities and towns. They are for public use and public convenience, not for local or municipal bene- fit. Especially is this true of the great thoroughfares of a city or town. Some courts have classified sewers with streets,** though it is obvious that the municipal interest and benefit far exceeds that of the public in the- sewers and drains of the city. Both streets and sewers, however, are usually placed under the special care and control of the municipality. The state delegates this public function to the local corpora- tion, and the bone of contention has been whether the mu- 43 2 Dill. Mun. Corp. §§ 961-971; City of Omaha v. Croft, 60 Neb. 59, 82 S. W. 120; McGinnis v. Iiihabitant3 of Medway, 176 Mass. 67, 57 N. E. 210. a Whipple V. Village of Fair Haven, 63 Vt. 221, 21 Atl. 533 ; Ash- ley V. City of Port Huron, 35 Mich. 296, 24 Am. Rep. 552 ; Self ert v. City of Brooklyn, 101 N. Y. 136, 4 N. E. 321, 54 Am. Rep. 664; Eowe V. City of Portsmouth, 56 N. H. 291, 22 Am. Rep. 464. § 118) CARE OF STKEET3 387 nicipality, in caring for streets and sewers, is performing a governmental or municipal function ; or, practically stated, the question is whether it may become liable for tort in regard to these governmental affairs.*" CARE OF STREETS 118. The common law requires every municipal corporatiort to exercise reasonable care to make and keep its streets safe for all ordinary uses for which they are opened to the public. The prevailing view of the courts in America is that for a failure to keep streets in repair there is an implied common- law liability for resulting injury resting upon every chartered municipality. After long contention in the federal courts this .doctrine was at last authoritatively adopted by the Supreme Court of the United ' States in the leading case of Barnes v. District of Columbia,*' and this view is also maintained in the states of Alabama,*^ Colorado,*' the Dakotas,*' Delaware,^" Florida,°^ Georgia,'^ Illinois,^' Indiana,^* Iowa,°° Kansas,"' <= District of Columbia v. Woodbury, 136 U. S. 450, 10 Sup. Ct. 990, 34 L. Ed. 472. See Abendroth v. Town of Greenwich, 29 Conn. 356. 4 6 91 U. S. 540, 23 L. Ed. 440. *7 Campbell's Adm'x v. City Council of Montgomery, 53 Ala. 527, 25 Am. Kep. 656. *8 City of Denver v. Dean, 10 Colo. 375, 16 Pac. 30, 3 Am. St. Rep. 594. *B Larson v. Grand Forks, 3 Dak. 307, 19 N. W. 414. BO Anderson v. City of Wilmington, 8 Houst. (Del.) 516, 19 Atl. 509. 51 City of Tallahassee v. Fortune, 3 Fla. 19, 52 Am'. Dec. 358. 5 2 Parker v. Mayor, etc., of City of Macon, 39 Ga. 725, 99 Am. Dec. 486. 5 3 City of Chicago v. Keefe, 114 111. 222, 2 N. E. 267, 55 Am. Rep. 860. 5* City of Goshen v. England, 119 Ind.^68, 21 N. E. 977, 5 L. R. A. 253. * 5 5 Beazan v. Incorporated Town of Mason City, 58 Iowa, 233, 12 N. W. 279. 66 Kansas City v. Bermingham, 45 Kan. 212, 25 Pac. 569. 388 TOBTS (Ch. 12 Kentucky," Louisiana," Maryland," Montana," Minneso- ta," Mississippi,^^ Missouri,"^ Nebraska," Nevada," North Carolina,^' Ohio," Oregon,^* Pennsylvania," Tennessee,'" Texas,'^ Utah,'= Virginia,'* Washington,'* and West Vir- ginia.'" Under the lead of Massachusetts, where this subject, has been often and ably considered," the following states have adopted the contrary view: Arkansas," California,'* Connect- icut,'» Maine,'" Michigan,*^ New Hampshire,*^ New Jersey,'^ 5 7 Greenwood v. Louisville, 13 Bush (Ky.) 226, 26 Am. Rep. 263. B8 ciine V. Orfescent City R. Co., 41 La. Ann. 1031, 6 South. 851. C9 Mayor, etc., of City of Baltimore v. Marriott, 9 Md. 160. 60 Sullivan v. City of Helena, 10 Mont. 134, 25 Pac. 94. 81 Welter v. City of St. Paul, 40 Minn. 460, 42 N. W. 392, 12 Am. St. Rep. 752. 62 Whitfield V. City of Meridian, 66 Miss. 570, 6 South. 244, 4 L. R. A. 834, 14 Am. St. Rep. 596. esHaniford v. City of Kansas, 103 Mo. 172, 15 S. W. 753. 64 City of Lincoln v. Smith, 28 Neb. 762, 45 N. W. 41. 65 McDonough v. Mayor, etc., of Virginia City, 6 Nev. 90. 66 Meares v. Commissioners of Town of Wilmington, 31 N. C. 73, 49 Am. Dec. 412. 67 Village of Shelby v. Clagett, 46 Ohio St. 549, 20 N. E. 407, 5 L. R. A. 606. 68 Farquar v. City of Roseburg, 18 Or. 271, 22 Pac. 1103, 17 Am. St. Rep. 732. 69 Borough of Brookville v. Arthurs, 130 Pa. 501, 18 Atl. 1076. 70 Mayor, etc., of City of KnoxvlUe v. Bell, 12 Lea (Tenn.) 157. , 71 City of Galveston v. Posnainsky, 62 Tex. 118, 50 Am. Rep. 517. 72 Levy V. Salt Lake City, 3 Utah, 63, 1 Pac. 160. 7 3 McCoull V. City of Manchester, 85 Va. 579, S S. E. 379, 2 L. E. A. 691 ; Shearer v. Town of Buckley, 31 Wash. 370, 72 Pac. 76. 74 Hutchinson v. City of Olympia, 2 Wash. T. 314, 5 Pac. 606. 7 5 Moore v. City of Huntington, 31 W. Va. 842, 8 S. E. 512. 76 Mower V. Inhabitants of Leicester, 9 Mass. 247, 6 Am. Dec. 63 ; Hill V. City of Boston, 122 Mass. 344, 23 Am. Dec. 332. 7 7 Ft. Smith V. York, 52 Ark. 85, 12 S. W. 157. 7 8 Arnold v. City of San Jose, 81 Cal. 618, 22 Pac. 877. 7 8 Beardsley v. City of Hartford, 50 Conn. 529, 47 Am. Rep. 677. so Aldrich v. Inhabitants of Gorham, 77 Me. 287. n City of Detroit v. Blackeby, 21 Mich. 84, 4 Am. Rep. 450. But there is in Michigan the duty upon the city to keep its streets in a reasonably safe condition for travel. Finch v. Bangor, 133 Mich. 149, 94 N. W. 738. 82 Sweeney v. Newport, 65 N. H. 86, 18 Atl. 86. 8 3 Wild V. Paterson, 47 N. J. Law, 406, 1 Atl. 490. § 118) CARE OF STEEETS 389 Rhode Island,'* South Carolina,*" Vermont,*' and Wiscon- sin.*' The Supreme Court of the United States recognizes its duty to follow the decisions of the highest court of each state in regard to municipal liability for tort therein.** It is to be noted, however, that in some of the last-named states the liability has been imposed by statute.^ But a municipality is not an insurer of public safety on its streets.®" It does not assume to care for and protect the pub- lic using its streets under all conditions and emergencies. Dangers may suddenly appear in the streets, of which the city may have no notice. Exigencies may arise with which it is unable to cope, from which the public may suffer injury, but for which the municipality is not liable. It owes the public only the duty of reasonable diligence to keep its streets in such condition that the public, by exercising like diligence, may use them for all lawful purposes with reasonable security.'^ A failure to perform this duty will render a municipality lia- ble for the damage occasioned thereby.®'' 8* Taylor v. Peckham, 8 E. I. 349, 91 Am. Dee. 235, 5 Am. Rep. 578. 85 Young V. City Council of Charleston, 20 S. C. 116, 47 Am. Rep. 827. 8 6 Welsh V. Village of Rutland, 56 Vt. 228, 48 Am. Rep. 762. 8 7 Cairncross v. Village of Pewaukee, 78 Wis. 66, 47 N. W. 13, 10 L. R. A. 473. 8 8 City of Detroit v. Osborne, 135 U. S. 492, 10 Sup. Ct. 1012, 34 L. Ed. 260, and cases cited In notes 47-76, inclusive, supra. 8 9 Roberts v. City of Detroit, 102 Mich. 64, 60 N. W. 450, 27 L. R. A. 572; Byington v. City of Merrill, 112 Wis. 211, 88 N. W. 26; Huntington v. City of Calais, 105 Me. 144, 73 Atl. 829 ; Jones v. City of Bo.ston, 201 Mass. 267, 87 N. E. 589. 90 City of Portsmouth v. Lee, 112 Va. 419, 71 S. E. 630; Elam v. City of Mt. SterUng, 132 Ky. 657, 117 S. W. 250, 20 L. R. A. (N. S.) 512; Mitchell v. TeU City (Ind. App.) 81 N. E. 594; City of Day- ton V. Glaser, 76 Ohio St 471, 81 N. E. 991, 12 L. R. A. (N. S.) 916. 91 JACKSON V. CITT OF GREENVILLE, 72 Miss. 220, 16 South. 382, 27 L. R. A. 527, 48 Am. St. Rep. 553, Cooley, Cas. Mun. Corp. 281. 9 2 City of Denver v. Baldasari, 15 Colo. App. 157, 61 Pac. 190; Weightman v. Washington, 1 Black (U. S.) 39, 17 L. Ed. 52; City of Joliet V. Verley, 35 111. 58, 85 Am. Dec. 342 ; Peake v. City of Su- perior, 106 Wis. 403, 82 N. W. 306; Morris v. Salt Lake City, 35 390 TOETS (Ch. 12 For an injury occurring to any person from the apparent neglect of the municipality to keep its streets in repair, two defenses are open, which are generally recognized as sufficient : (B That the city had no notice, actual or implied, of the ex- isting defect. The duty to repair is one of reasonable dili- gence. Liability cannot be incurred in such case before duty begins; and duty does not precede notice. But actual notice is not required."^ Having the care of the streets, the munici- Utah, 474, 101 Pac. 373; City of Chicago v. Jarvis, 226 111. 614, 80 N. E. 1079; Hartnet v. City of New York (Sup.) 127 N. Y. Supp. 295; Corry v. City of Columbia, 88 S. C. 553, 71 S. B. 49; City of Denver v. Moewes, 15 Colo. App. 28, 60 Pac. 986; Same v. Duns- more, 7 Colo. 329, 3 Pac. 705 ; City of Boulder v. Niles, 9 Colo. 418, 12 Pac. 632; City of Denver v. Aaron, 6 Colo. App. 234, 40 Pac. 587 ; Bedford City v. Sitwell, 110 Va. 296, 65 S. E. 471 ; Walters v. Village of Exeter, 87 Neb. 125, 126 N. W. 808; Turner v. City of Newburgh, 109 N. Y. 301, 16 N. E. 344, 4 Am. St. Rep. 453. While a municipality may authorize erections for public utilities, such as hydrants, in its streets, it still owes to the public the duty to keep its streets in a reasonably safe condition for travelers by day and night; but it is not an insurer of the safety of those using its streets. Burnes v. City of St. Joseph, 91 Mo. App. 489. It is the duty of the city to keep its streets in reasonably safe condition for all those who rightfully use them, or have occasion to pass over them for the purpose of business, convenience, or pleas- ure. City of Kansas City v. Orr, 62 Kan. 61, 61 Pac. 61, 50 L. R. A. 783. In the absence of a positive requirement of law that a city keep its streets in a safe or reasonably safe condition, it is bound only to exercise ordinary care to keep them in a reasonably safe condi- tion. City of Dallas v. Moore, 32 Tex. Civ. App. 280, 74 S. W. 95 ; Finch V. Bangor, 133 Mich. 149, 94 N. W. 738; Aucoin v. City of New Orleans, 105 La. 271, 29 South. 502. And a city cannot claim that its streets are so far public as to free it from responsibility. Twist V. City of Rochester, 165 N. Y. 619, 59 N. E. 1131. 93 A city is not liable for injuries caused by defective streets in absence of actual notice of such defects, or unless they have existed so long that notice should be imputed to it. Bell v. Henderson, 24 Ky. Law Rep. 2434, 74 S. W. 206; City of Lafayette v. Larson, 73 Ind. 367 ; Jansen v. City of Atchison, 16 Kan. 358 ; Young v. City of Webb City, 150 Mo. 333, 51 S. W. 709 ; Fitzgerald v. City of Con- cord, 140 N. C. 110, 52 S. E. 309; Downs v. Commissioners, 2 Pen- newill (Del.) 132, 45 Atl. 717. See JONES v. CITY OF CLINTON, 100 Iowa, 333, 69 N. W. 418, Cooley, Cas. Mnn. Corp. 286 ; Snyder v. City § 118) CAKE OF STREETS 391 pality must use reasonable diligence to know their condition, such as an ordinary man uses in the care of his own property. Notice rnay, therefore, be impHed from the obvious existence of the defect for a sufHcient period. What is commonly known by the people in any portion of the city is imputed to the municipality."* It is, of course, generally recognized that the municipality may have a reasonable time after notice in which to make the repairs." ° (2) The lack of any corporate of Albion, 113 Mich. 275, 71 N. W. 475 ; Mayor, etc., of City of Monte- zuma V. Wilson, 82 Ga. 206, 9 S. E. 17, 14 Am. St. Rep. 150 ; Town of Franklin v. House, 104 Tenn. 1, 55 S. W. 153 ; Ransom v. City of Belvidere, 87 111. App. 167 ; City of Murphysboro v. O'Riley, 36 111. App. 157; Same v. Baker, 34 111. App. 657. But see Arthur v. City of Charleston, 51 W. Va. 130, 41 S. E. I7I. And compare City of Lincoln v. Pirner, 59 Neb. 634, 81 N. W. 846. But a city can only be charged with actual notice of a defect by proof that such notice was given to an officer having authority to act, or whose duty it was to report the matter to some one with au- thority. City of Dallas v. Meyers (Tex. Civ. App.) 55 S. W. 742. 9*Milledge v. Kansas City, 100 Mo. App. 490, 74 S. W. 892; Smith v. Sioux City, 119 Iowa, 50, 93 N. W. 81 ; City of Louisville v. Brew- er's Adm'r, 24 Ky. Law Rep. 1671, 72 S. W. 9; Barr v. City of Kan- sas, 105 Mo. 550, 16 S. W. 483 ; Shipley v. City of Bolivar, 42 Mo. App. 401; McAllister v. City of Bridgeport, 72 Conn. 733, 46 Atl. 552 ; McDonald v. City of Ashland, 78 Wis. 251, 47 N. W. 434 ; TICK V. BAT CITY, 84 Mich. 461, 47 N. W. 1062, Cooley, Cas. Mun. Corp. 285 ; Bradford v. City of Anniston, 92 Ala. 349, 8 South. 683, 25 Am. St. Rep. 60; Carstesen v. Town of Stratford, 67 Conn. 428, 35 Atl. 276; Piper v. City of Spokane, 22 Wash. 147, 60 Pac. 138; Mayor, etc., of Birmingham v. Starr, 112 Ala. 98, 20 South. 424; Jones v. City of Greensboro, 124 N. C. 310, 32 S. B. 675; Urtel v. City of Flint, 122 Mich. 65, 80 N. W. 991; City of Streator v. Chrisman, 182 lU. 215, 54 N. E. 997 ; L'Herault v. City of Minneapolis, 69 Minn. 261, 72 N. W. 73; Breil v. City of Buffalo, 144 N. Y. 163, 38 N. E. 977; City of Palestine v. Hassell, 15 Tex. Civ. App. 519, 40 S. W. 147; Poole v. City of Jackson, 93 Tenn. 62, 23 S. W. 57; Rosevere V. Borough of Osceola Mills, 169 Pa. 555, 32 Atl. 548. Where there is abundant time by reason of reasonably frequent examination to discover and remedy a defective street, and a person is Injured in consequence of such defect, the municipality will not be relieved from liability for the consequences of its negligenhe. City of Chicago v. McCabe, 93 111. App. 288. See Corey v. City of Ann Arbor, 124 Mich. 134, 82 N. W. 804 ; Buckley v. City of Kansas City, 156 Mo. 16, 56 S. W. 319. 95 Fuller v. Mayor, etc., of City of Jackson, 82 Mich. 480, 46 N. W. 332 TORTS (Ch. 12 fund and of any power to obtain one applicable to repairs has also been recog;nized as a good defense. Such inabili^ty in a municipal corporation is rare and exceptional. Want of funds alone is no defense;"'-' but lack of power to raise a fund applicable to such purpose was recognized as a just de- fense to the Men of Devon," and has been ever since sus- tained in English and American courts. It is the chief ground of nonliability of quasi corporations,®* and should have equal force and recognition in favor of municipalities not empow- ered to perform the duty of repair. But there are cases which do not recognize the sufficiency of this defense, and declare it the duty of the corporation to close a dangerous street which it cannot repair.*' And the courts which recognize inability as a valid defense require the municipality to show that it has exhausted the means at its command to raise funds for the purpose, and given signals of the danger.^ Reasonable Care, What is What is reasonable care is a question of fact depending upon the circumstances of each particular case. The degree of 721; Brady v. City of Lowell, 57 Ma,ss. (3 Cush.) 121; Seward v. City of Wilmington, 2 Marv. (Del.) 189, 42 Atl. 451 ; Gerber v. Kan- sas City, 105 Mo. App. 191, 79 S. W. 717; City of Lynchburg v. Wallace, 95 Va. 640, 29 S. B. 675. Where territory is annexed, a city has a reasonable time to render the streets therein reasonably safe before it can be held liable for injuries from defects. City of Richmond v. Mason, 109 Va. 546, 65 S. B. 8, 17 Ann. Cas. 194. »e Mayor, etc., of City of Birmingham v. Lewis, 92 Ala. 352, 9 South. 243 ; Prideaux v. City of Mineral Point, 43 Wis. 513, 28 Am. Eep. 558; Village of Shelby v. Clagett, 46 Ohio St 549, 22 N. E. 407, 5 L. R. A. 606 ; Heath v. Manson, 147 Cal. 694, 82 Pac. 331. »7 Russell V. Men of Devon, 2 Durn. & E. 667. And see Whitfield V. City of Meridian, 66 Miss. 570, 6 South. 244, 4 L. R. A. 834, 14 Am. St. Rep. 596. »8 Post, § 165, note 35. 99 Elliott, Roads & Sts., pp. 445, 446, 452; Monk v. Town of New Utrecht, 104 N. Y. 552, 11 N. B. 268; Mayor, etc., of City of Birming- ham V. Lewis, 92 Ala. 352, 9 South. 243. 1 Mayor, etc., of City of Birmingham v. Lewis, supra ; Lord v. City of Mobile (1897) 113 Ala. 360, 21 South. 366; Whitfield v. City § 118) CARE OF STEEETS 393 repair of a street is a matter of municipal discretion. The standard of repair may well be different in various localities. What is a defect in a fine avenue or great thoroughfare may not be such in an obscure street or alley." It has even been held that what might constitute actionable negligence on the part of a city as to one person may not be actionable as to another,* which is equivalent to saying that what would be contributory negligence defeating the action of one person might not bar the action of another person of weaker sense and power. Here, as in all cases involving what is reasonable, is a broad boundary of uncertainty between the fixed rules of the law. But it has been held that the municipality must use such care as will protect not only the busy traveler and pedestrian, but also the playing child and even the idle loafer.* of Meridian, 66 Miss. 570, 6 South. 244, 4 L. R. A. 834, 14 Am; St. Rep. 596; Carney v. Village of Marseilles, 136 111. 401, 26 N. E. 491, 29 Am. St. Rep. 328 ; Moon v. City of Ionia, 81 Mich. 635, 46 N. W. 25; City of Erie v. Schwingle, 22 Pa. 384, 60 Am. Dec. 87; Albrlttin V. Mayor, etc., of City of Huntsville, 60 Ala. 486, 31 Am. Rep. 46; Delger v. City of St. Paul (C. C.) 14 Fed. 567. See Collett v. City of New York, 51 App. Div. 394, 64 N. T. Supp. 693, as to faulty con- struction and warning. 2 Landolt v. City of Norwich, 37 Conn. 615 ; City of Rockford v. Hollenbeck, 34 111. App. 40; City of Flora v. Naney, 136 111. 45, 26 N. E. 645; Seward v. City of Wilmington, 2 Marv. (Del.) 189, 42 Atl. 451; City of South Omaha v. Powell, 50 Neb. 798, 7p N W. 391. - Municipalities are not bound to the same degree of care on an alley as on its streets. Muslck v. Borough of Latrobe, 184 Pa. 375, 39 Atl. 226; GulUne v. Lowell, 144 Mass. 491, 11 N. E. 723, 59 Am. Rep. 102; Walker v. Town of Reidsville, 96 N. C. 382, 2 S. E. 74. 4 District of Columbia v. Boswell, 6 App. D. C. 402; City of Covington v. Boll winkle (Ky.) 121 S. W. 664; City of Denver v. Mur- ray, 18 Colo. App. 142, 70 Pae. 440 (where the city had permitted the erection of a derrick, which fell upon a child who was playing around it); City of Waverly v. Reesor, 93 111. ApP- 649; aty of Omaha v. Richards, 49 Neb. 244, 68 N. W. 528 (where the city of Omaha was held liable for the death of a boy who fell through a section of a sidewalk which he was using as a raft on a pond of water which had accumulated over a street and adjacent private property, because of the city's negligence in constructing a storm sewer). See City of Chicago v. Keefe (loafer) 114 111. 222, 2 N. E. 267, 55 Am. Rep. 860 ; McGuire v. Spence, 91 N. Y. 303, 43 Am. Rep. 394 TORTS (Ch. 12 OBSTRUCTIONS 119. Reasonable care of streets also requires of the munici- pality the removal from them of unlawful obstruc- tions and the signaling of dangerous ones. As we have hitherto, seen, the temporary and partial ob- struction of a street may be permitted by the city when nec- essary for building, removing, improving, or commerce ; " but such work must obviously be performed with dispatch and care, and municipal consent must be obtained for the ob- struction. Whenever and wherever it is permitted, it is a mu- nicipal duty to give reasonable warning to the public, both day and night, of the presence of danger, to the end that it may be avoided." Hitching posts, electric poles, stepping stones, and hydrants are not regarded as unlawful obstruc- tions when placed at the curbstone or margin of the street, so as not to render the way unsafe ; ' but such things placed either* with or without municipal consent within the portion of the street commonly used either for riding, driving, or walking, and not properly guarded or signaled, will give action against the municipality to one injured thereby.* Recoveries against 668; Hunt v. City of Salem, 121 Mass. 294; Kepd, City of, v. Madi- son, 83 Wis. 171, 53 N. W. 547, 17 L. R. A. 733. B Ante, §§ 109, 110. s Leonard v. Boston, 183 Mass. 68, ,66 N. E. 596; Cummings v. City of Hartford, 70 Conn. 115, 38 Atl. 916 ; City of Louisville v. Keher, 117 Ky. 841, 79 S. W. 270 ; Bauer v. City of Rochester, 59 Hun, 616, 12 N. Y. Supp. 418; City of Canton v. Dewey, 71 111. App. 346; Lloyd V. Mayor, etc., of Qty of New York, 5 N. Y. 369, 55 Am. Dec. 347; Oliver v. City of Worcester, 102 Mass. 489, 3 Am. Rep. 485; Storrs V. City of Utlca, 17 N. Y. 104, 72 Am. Dec. 437 ; City of Detroit v. Corey, 9 Mich. 165, 80 Am. Dec. 78; Wilson v. City of Wheeling, 19 W. Va. 323, 42 Am. Rep. 780. 7 City of Denver v. Sherret, 88 Fed. 226, 31 C. C. A. 499; Wein- stein V. City of Terre Haute, 147 Ind. 556, 46 N. E. 1004; Ring v. City of Cohoes, 77 N. Y. 83, 33 Am. Rep. 574; Macomber v. City of Taunton, 100 Mass. 255. 8 aty of Kansas City v. Orr, 62 Kan. 61, 61 Pac. 397, 50 L. R. A. § 119) OBSTRUCTIONS 395 a municipality have also been sustained because of its failure to remove or properly signal as obstructions to the street an ash pile,* motor,^" steam foUer,^^ machinery/^ a furnace/^ a tent,^* building material,^" a hydrant/ ° logs,^^ rocks and 783 ; City of Circleville v. Sohn, 59 Ohio St. 285, 52 N. E. 788, 69 Am. St. Rep. 777; THUNBORG v. CITY OF PUEBLO, 18 Colo. App. 80, 70 Pac. 148, Cooley, Cas. Mun. Corp. 288 ; City of El Paso v. Do- lan (Tex. Civ. App.) 25 S. W. 669 (glass); Hayes v. City of West Bay City, 91 Mich. 418, 51 N. W. 1067; Mayor, etc., of City of Birming- ham V. Lewis, 92 Ala. 352, 9 South. 243 ; Crowther v. Cily of Yon- kers, 60 Hun, 586, 15 N. Y. Supp. 588; South Omaha v. Cunningham, 31 Neb. 316, 47 N. W. 930 ; Drake v. Seattle, 30 Wash. 81, 70 Pac. 231, 94 Am. St. Rep. 844; Powers v. Penn Mut. Life Ins. Co., 91 Mo. App. 55; Arey v. City of Newton, 148 Mass. 598, 20 N. E. 327, 12 Am. St. Rep. 604; Ring v. City of Cohoes, supra; King v. City of Oshkosh, 75 Wis. 517, 44 N. W. 745; City of New York v. Sheffield, 4 Wall. (U. S.) 189, 18 L. Ed. 416. = Kane v. City of Troy, 48 ,Hup, 619, 1 N. Y. Supp. 536; Ring v. City of Cohoes, 77 N. Y. 83, 33 Am. Rep. 574. 10 Stanley v. City of Davenport, 54 Iowa, 463, 2 N. W. 1064, .6 N. W. 706, 37 Am. Rep. 216. 11 Hughes V. City of Fond du Lac, 73 Wis. 380, 41 N. W. 407. See Mulligan v. City of New Britain, 69 Conn. 96, 36 Atl. 1005. Contra, where a steam roller frightened a horse it was held that the city was not liable. Lane v. City of.Lewiston, 91 Me. 292, 39 Atl. 999. 12 Whitney v. Town of Ticonderoga, 127 N. Y. 40, 27 N. E\ 403; Bennett v. Lovell, 12 R. I. 166, 34 Am. Rep. 628. 13 Town of Rushville v. Adams, 107 Ind. 475, 8 N. E. 292, 57 Am. Rep. 124. 1* Ayer v. City of Norwich, 39 Conn. 376, 12 Am. Rep. 396. 10 Joslyn V. City of Detroit, 74 Mich. 459, 42 N. W. 50; Munley v. Sugar Notch Borough, 215 Pa. 228, 64 Atl. 377; Smith v. Davis, 22 App. D. C. 298; Rommeney v. City of New York, 49 App. Dlv. 64, 63 N. Y. Supp. 186; Fairgrieve v. City of Moberly, 39 Mo. App. 31. See McDonald v. City of Troy, 59 Hun, 618, 13 N. Y. Supp. 385. 16 Adams V. City of Oshkosh, 71 Wis. 49, 36 N. W. 614. Where no part of the street was appropriated to sidewalks, and vehicles were actually driven on any part of It, the municipality was held liable to a driver who was injured by reason of an unguarded hydrant placed 11 feet from the street line. Bumes v. City of St. Joseph, 91 Mo. App. 489. See THUNBORG v. PUEBLO, 18 Colo. App. 80, 70 Pac. 148, Cooley, Cas. Mun. Corp. 288. IT Johnson v. Inhabitants of Whitefield, 18 Me. 286, 36 Am. Dec. 721 ; Chase v. City of Lowell, 151 Mass. 422, 24 N. E. 212. 396 TOETS (Ch. 13 stones,^' and also dangerous holes and excavations in or near the street," and objects naturally tending to frighten horses ordinarily gentle.^" Street Lights There is said to be no implied duty resting on a munici- pality to light its streets ; '^^ but where such duty is imposed by 18 Koch V. City of WUliamsport, 195 Pa. 488, 46 Atl. 67 ; May v. City of Anaconda, 26 Mont. l40, 66 Pac. 759; Patterson v. City of Austin, 15 Tex. Civ. App. 201, 39 S. W. 976; Hesselbach v. St. Louis, 179 Mo. 505, 78 S. W. 1009. 18 Mayor, etc., of City of Birmingham v. Lewis, 92 Ala. 352, 9 South. 243 ; Brush v. City of New York, 59 App. Div. 12, 69 N. Y. Supp. 51; Foy v. City of Winston, 126 N. C. 381, 35 S. E. 609; City of South Omaha v. Cunningham, 31 Neb. 316, 47 N. W. 930; Drew v. Town of Sutton, 55 Vt. 586, 45 Am. Rep. 644 ; Hinckley v. Somerset, 145 Mass. 326, 14 N. E. 166. A city must use reasonable care to protect pedestrians from falling into excavations upon private lots and adjacent to the sidewalk. Wiggin V. Cits' of St Louis, 135 Mo. 558, 37 S. W. 528. See Okla- homa City V. Meyers, 4 Okl. 686, 46 Pac. 552; Hawley v. City of Atlantic, 92 Iowa, 172, 60 N. W. 519 ; Talty v. Same, 92 Iowa, 135, 60 N. W. 516 ; Brown v. Town of Louisburg, 126 N. 0. 701, 36 S. E. 166, 78 Am. St. Rep. 677. 20 City of Weatherford v. Lowery (Tex. Civ. App.) 47 S. W. 34; City of Vandalia v. Huss, 41 111. App. 517; Bowes v. City of Boston, 155 Mass. 344, 29 N. E. 633, 15 L. R. A. 365 ; Bennett v. Fifield, 13 R. I. 139, 43 Am. Rep. 17; Agnew v. Coruuna, 55 Mich. 428, 21 N. W. 873, 54 Am. Rep. 383. Where a horse of ordinary gentleness merely shies, so that the driver does not lose control of him, but is injured by coming in con- tact with an obstruction in the street, the city, is liable. Burnes v. City of St. Joseph, 91 Mo. App. 489. See Patterson v. City of Austin, supra; Taylor v. City of Ballard, 24 Wash. 191, 64 Pac. 143. 21 McHugh V. City of St. Paul, 67 Minn. 441, 70 N. W. 5; City of Freeport v. Isbell, 83 111. 440, 25 Am. Rep. 407; Gaskins v. City of AUanta, 73 Ga. 746. A municipality need not light its streets, if their construction is reasonably safe for travel, in the absence of statutory command or charter duty. Canavan v. Oil City, 183 Pa. 611, 38 Atl. 1096. Where the charter of a city gives it power to provide for light- ing its streets, but does not require it to exercise such power, there is no general duty devolved upon the city to light the streets that will make its failure to do so actionable neigllgence. City of Day- tona V. Edson, 46 Fla. 463, 34 South. 954, 4 Ann. Cas. 1000. See City of Chicago v. Apel, 50 111. App. 132. § 120) SIDEWALKS 397 the legislature, or where the city has voluntarily assumed per- formance of this appropriate municipal function, reasonable care must be exercised to keep the street lamps in good order, and properly lighted ; and for failure to do this an action will lie in favor of one receiving special injury therefrom.^" SIDEWALKS 120. Sidewalks under municipal control are objects of the same reasoitable municipal care as other parts of the street, and an action will lie for injuries result- ing from nonfeasance or misfeasance of this mu- nicipal duty. It is immaterial whether the municipality has built the side- walk. Being a part of the street, it is under municipal con- trol, and the corporation will be liable for neglecting to exer- cise ordinary care to keep it reasonably safe.^* The duty is 22 Gordon v. City of Richmond, .83 Va. 436, 2 S. B. 727; McAllister V. City of Albany, 18 Or. 426, 23 Pac. 845; City of Cleveland v. King, 132 U. S. 295, 10 Sup. Ct 90, 33 L. Ed. 334 ; Wilson v. White, 71 Ga. 506, 51 Am. Rep. 269; Bauer v. City of Rochester, 59 Hun, 616, 12 N. Y. Supp. 418. A city cannot escape liability for Injuries caused by the failure of an electric light company which had contracted to light the streets. City of Baltimore r. Beck, 96 Md. 183, 53 Atl. 976. 2 3 City of Beardstown v. Clark, 104 111. App. 568; Padelford v. Eagle Grove, 117 Iowa, 616, 91 N. W. 899 ; Midway v. Lloyd, 24 Ky. Law Rep. 2448, 74 S. W. 195; City of Louisville v. Johnson, 24 Ky. Law Rep. 685, 69 S. W. 803} City of Dallas v. Meyers (Tex. Civ. App.) 55 S. W. 742; Same v. Jones (Tex. Civ. App.) 54 S. W. 606; City Council of Augusta v. Tharpe, 113 Ga. 152, 38 S. E. 389; City of EVansville v. Frazer, 24 Ind. App. 628, 56 N. E. 729 ; Kellow v. City of Scranton, 195 Pa. 134, 45 Atl. 676; Salisbury v. Village of Ithaca, 94 N. Y. 27, 46 Am. Rep. 122; Roe v. Kansas City, 100 Mo. 190, 13 S. W. 404; Barr v. Same, 105 Mo. 550, 16 S. W. 483 ; Fulliam y. City of Muscatine, 70 Iowa, 436, 30 N. W. 861; Graham v. City of^ Albert Lea, 48 Minn. 201, 50 N. W. 1108. In the absence of a positive requirement of law that a city keep its streets in a safe or reasonably safe condition, it is bound only to exercise ordinary care to keep them in a reasonably safe condition. 398 TOKTS (Ch. 12 an active one, beginning with the construction of the walk and continuing thenceforth as long as it remains under mu- nicipal control.^* If it be the duty of the abutter to make repairs, the municipality is not relieved from liability by no- tice given to the abutter. The walk must be made safe with- in a reasonable time, or the municipality will be liable for damages occurring from its being out of repair.^" Reasonable Care — Latent Defects The municipality is not an insurer of the safety of its side- walks.^° Its duty is fully performed by the exercise of rea- sonable care, not only in construction but also in the inspec- tion of walks. It is not liable for every latent defect, but it may be liable for latent defects which proper inspection would have disclosed. The just rule seems to be that whenever a municipality maintains a sidewalk which it knows, or with due care would know, to be unsafe, it is liable in damages to one suffering injury from the defect.^^ City of Dallas v. Moore (Tex. Civ. App.) 74 S. W. 95; Brown v. Incorporated Town of Chillicothe, 122 Iowa, 640, 98 N. W. 502. But see Wolf V. District of Columbia, 21 App. D. C. 464. 3* Brake v. Kansas City, 100 Mo. App. 611, 75 S. W. 191; Shlppy V. Village of Au Sable, 85 Mich. 280, 48 N. W. 584; FuUiam v. City of Muscatine, 70 Iowa, 436, 30 N. W. 861; Ban- v. Kansas City, su- pra. 2 5 Domer v. District of Columbia, 21 App. D. C. 284 ; Michigan City V. Phillips (Ind. App.) 69 N. E. 700 ; Bennett v. Village of Sing Sing, 60 Hun, 579, 14 N. Y. Supp. 463; City of Lincoln v. Staley, R2 Neb. 63, 48 N. W. 887; City of Flora v. Naney, 31 111. App. 493; Id., 136 111. 45, 26 N. E. 645; Kinney v. City of Tekemah, 30 Neb. 605, 46 N. W. 835; Hutchings v. Inhabitants of Sullivan, 90 Me. 131, 37 Atl. 883; Betz v. Ldmingi, 46 La. Ann. 1113, 15 South. 385, 46 Am. St. Rep. 344. ! 26 Burns v. City of Bradford, 137 Pa. 361, 20 Atl. 997, 11 L. R. A. 726. 2 7 City of Covington v. Johnson, 24 Ky. Law Rep. 602, 69 S. W. 703 ; Padelford v. Eagle Grove, 117 Iowa, 616, 91 N. W. 899 ; Buckley V. Kansas City, 156 Mo. 16, 56 S. W. 319; Cowie v. City of Seattle, 22 Wash. 659, 62 Pac. 121; BLYHL v. VILLAGE OF WATEBVILLE, 57 Minn. 115, 58 N. W. 817, 47 Am. St. Rep. 596, Cooley, Cas. Mun. Corp. 290; City of Peoria v. Simpson, 110 111. 294, 51 Am. Rep. 683; McConnell v. City of Osage, 80 Iowa, 293, 45 N. W. 550, 8 L. R. A. § 120) SIDEWALKS 399 Hatchways and Coal Chutes in Walks Hatchways and similar entrances from sidewalks to cellars are necessities in urban life, but the city must take care that such things do not become dangerous to pedestrians.^' If basement steps are necessary and permitted in a sidewalk, they must be guarded with suitable railing ;=° and the doors or lids of hatchways or coal chutes must be safe and strong, so as to protect pedestrians from danger. For failure to exercise due care in this respect the municipality may be liable in dam- ages.^" The municipal duty of reasonable care applies also to things above the sidewalk, such as signboards, poles, and awnings.'^ 778; Stebbins v. Keene Tp., 55 Mich. 552, 22 N. W. 37; Kellogg v. Village of JanesviUe, 34 Minn. 132, 24 N. W. 359. A city cannot be held liable for an injury caused by a latent de- fect in a sidewalk without actual notice, where the authorities have used all ordinary and reasonable means to discover it. Powell v. Village of Bowen, 92 lU. App. 453. See City of Rockford v. Hollen- beck, 34 111. App. 40; Moon v. City of Ionia, 81 Mich. 635, 46 N. W. 25; Young v. Kansas City, 45 Mo. App. 600; Jackson v. Pool, 91 Tenn. 448, 19 S. W. 324. 2 8 Village of Eranston v. Fitzgerald, 37 111. App. 86; Niblett v. Mayor, etc., of City of Nashville, 12 Heisk. (Tenn.) 684, 27 Am. Rep. 755; Corcoran v. Peekskill, 108 N. Y. 151, 15 N. E. 309; City of Franklin v. Harter, 127 Ind. 446, 26 N. E. 882; Sweeney v. City of Butte, 15 Mont. 274, 39 Pac. 286; CITY OF WABASHA v. SOUTH- WORTH, 54 Minn. 79, 55 N. W. 818, Cooley, Cas. Mun. Corp. 293. 2 9 McGuire v. Spence, 91 N. Y. 303, 43 Am. Rep. 668; Gridley v City of Bloomington, 68 111. 47; Id., 88 111. 554, 30 Am. Rep. 566 But see Beardsley v. City of Hartford, 50 Conn. 542, 47 Am. Rep 677. 30 Johnston v. City of Charleston, 3 S. C. 232, 16 Am. Rep. 721 Galvin v. Mayor, etc., of City of New York, 112 N. Y. 223, 19 N. E 675 ; Roe v. Kansas City, 100 Mo. 190, 13 S. W. 404. But see Little- field V. City of Norwich, 40 Conn. 408; Elliott, Roads & Sts. p. 453 31 Cason V. City of Ottumwa, 102 Iowa, 99, 71 N. W. 192; Bohen V. City of Waseca, 32 Minn. 176, 19 N. W. 730, 50 Am. Rep. 564 Langan v. City of Atchison, 35 Kan. 318, 11 Pac. 38, 57 Am. Rep 165; Domer v. District of Columbia, 21 App. D. C. 284. A municipality is bound to exercise careful supervision of elec- tric wires over its streets, and is liable for injury resulting from neglect of such duty, notwithstanding the liability of the owner. Mooney v. Luzerne Borough, 186 Pa. 161, 40 Atl. 311, 40 L. R. A. 811; '400 TOBTS (Ch. 12 Ice and Snow The presence of ice and snow upon streets and sidewalks has been a fruitful source of litigation in many states, and many diverse rulings have .-been made, due in large measure to difference of latitude. Generally, it may be said that in this particular, as in others, the municipal duty requires only reasonable care.'^ But what is reasonable in Tallahassee may not be in Kalamazoo. Precautions might be necessary in Osh- kosh that would not be necessary in Seattle. Statutes have been passed in the New England states prescribing the meas- ure of municipal duty; but such statutes, of course, are of local application only, and are not enacted in the Southern states. The only rule of general application, therefore, must be that of reasonable care in view of climatic and other con- ditions.'*; Domer v. District of Columbia, 21 App. D. O. 284. Contra, City of Fremont v. Dunlap, 69 Ohio St. 286, 69 N. E. 561. 32 Gaylord v. City of New Britain, 58 Conn. 398, 20 Atl. 365, 8 L. R. A. 752; Gillrie v. City of Lockport, 122 N. Y. 403, 25 N. B. 357; Adams v. Chicopee, 147 Mass. 440, 18 N. E. 231; Bell v. City of York, 31 Neb. 842, 48 N. W. 878 ; Grossenbach v. City of Milwaukee, 65 Wis. 31, 26 N. W. 182, 56 Am. Rep. 614; Broburg v. City of Des Moines, 63 Iowa, 623, 19 N. W. 340, 50 Am. Rep. 756. 83 Paulson V. Town of Pelican, 79 Wis. 445, 48 N. W. 715; Bor- ough of Mauch Chunk v. Kline, 100 Pa. 119, 45 Am. Hep. 364; Olson V. Worcester, 142 Mass. 536, 8 N. E. 441; Cloughessey v. City of Waterbury, 51 Conn. 405, 50 Am. Rep. 38. A city is liable for injuries resulting from ice on a sidewalk caus- ed by the packing of snow which had been allowed to remain on the walk several weeks. Beck v. City of Buffalo, 50 App. Div. 621, 63 N. Y. Supp. 499; Russell vi City of Toledo, 19 Ohio Oir. Ct. R. 418, 10 O. C. D. 367. See, also, Corey v. City of Ann Arbor, 124 Mich. 134, 82 N. W. 804 ; Eansom v. City of Belvidere, 87 111. App. 167. HERBERT D. UOBE § 121) BHIDGES AND VIADUCTS 401 BRIDGES AND VIADUCTS 121. Viaducts and bridges within a municipality are parts of streets, and objects of the same degree of mu- nicipal care. Unless required by mandatory statute, the construction of a bridge by a municipality is within its discretion ; and, the lo- cation of a bridge being a governmental function, the munici- pality is not liable at common law for injury resulting there- from, save to the extent of appropriating private property to public use under the §overeign power of eminent domain.^* Under constitutional and statutory rules, however, as we have heretofore seen,'° it may be liablfe as well for property dam- aged as property taken; and liability has been adjudged in one case upon the ground that the state has no right to un- dertake improvements in a negligent manner.^* A municipal corporation is not liable for injuries resulting from the negli- gence or erroneous judgment of its officers or agents in the performance of, or omission to perform, duties which are purely discretionary ; ^' such as opening or closing the street,^* changing a grade,*' locating a crossing,*" or even suspending a general regulation for the temporary convenience or pleasure of a portion of its people.** s* Jones V. Keith, 37 Tex. 399, 14 Am. Rep. 382; Orth v. City of Milwaukee, 59 Wis, 336, 18 N. W. 10. 35 Ante, § 90. 86 Hartford County Com'rs v. Wise, 71 Md. 43, 18 Atl. 31. ST Howsmon v. Trenton Water Co., 119 Mo. 304, 24 S. W. 784, 23 li. R. A. 146, 41 Am. St. Rep. 654. 3 8 Bauman v. Detroit, 58 Mich. 444, 25 N. W. 391. 3 Northern Transp. Co. of Ohio v. Chicago, 99 U. S. 635, 25 L. Ed. "336. 40 Smith V. Gould, 61 Wis. 31, 20 N. W. 369. *i Burford v. City of Grand Rapids, 53 Mich. 98, 18 N. W. 571, 51 Am. Rep. 105; Hill v. Board of Aldermen of City of Charlotte, 72 N. C. 55, 21 Am. Rep. 451; Rivers v. City Council of Augusta, 65 Ga. 376, 38 Am. Rep. 787. CooL.Muiir.CoEP. — 26 402 TOUTS (Ch. 12 Ministerial Functions But after the discretionary function of location has been performed and the municipality enters upon the business of construction, it enters the field of ministerial functions, and may become liable for failure to exercise reasonable care in the process of construction- It has accordingly been held that a corporation may be liable for failure to place proper guards and railings around the bridge approaches during the con- struction,*^ and also on the approaches and bridge itself after it is completed,*' so as to protect persons upon the bridge exercising ordinary care. . It must use due care to erect and maintain a reasonably safe structure,** and generally is lia- ble for failure to perform, or for negligent performance of its duty in regard to bridges, under the same rules as are ap- plicable to streets.*" This includes the duty of reasonable inspection and notice of danger, and for failure to exercise these duties municipalities have been held liable for defect in the floor,*' in the railings of a bridge,*' and for failure to close or warn the public of a dangerous bridge.*' 42 Weirs v. Jones County, 80 Iowa, 351, 45 N. W. 883; .Mullen v. Town of Rutland, 55 Vt. 77; Doherty v. Inhabitants of Braintree, 148 Mass. 495, 20 N. E. 106. ■«3 Corbalis v. Newberry Tp., 132 Pa. 9, 19 Atl. 44, 19 Am. St. Rep. 588; Langlois v. City of Cohoes, 58 Hun, 226, 11 N. Y. Supp. 908; City of Rosedale v. Golding, 55 Kan. 167, 40 Pac. 284. ** Perkins v. Inhabitants of Oxford, 66 Me. 545 ; Jordan v. City of Hannibal, 87 Mo. 673. "Where a city, under no obligation to do so, attempts to build ap- proaches to a canal bridge built over the canal by the canal trustees, it is liable for damages caused by their defective condition. City of JoUet V. Verley, 35 111. 58, 85 Am. Dec. 342. *B Village of Marseilles v. Howland, 124 111. 547, 16 N. E. 883; 2 Dill. Mun. Corp. § 728. 46 Langlois v. City of Cohoes, 58 Hun, 226, 11 N. Y. Supp. 90S; Strong v. City of Stevens Point, 62 Wis. 255, 22 N. W. 425; Mayor, etc., of City of Griffin v. Johnson, 84 Ga. 279, 10 S. E. 719; Lee Coun- ty V. Yarbrough, 85 Ala. 590, 5 South. 341 ; Lyman v. Hampshire, l40 Mass. 311, 3 N. E. 211. *i City of Jacksonville v. Drew, 19 Pla. 106, 45 Am. Rep. 5; Wood- man V. Town of Nottingham, 49 N. H. 387, 6 Am. Rep. 526. *8 Carney v. Village of Marseilles, 136 111. 401, 26 N. E. 491, 29 g 122) DBAIN8 AND 8EWEKS 403 DRAINS AND SEWERS 122. A municipality may also be liable for misfeasance or nonfeasance in the performance of its duty to ex- ercise reasonable care in the construction and maintenance of its drains and sewers. It is well settled that in deciding to build sewers and in choosing a plan the municipality is exercising governmental discretion, and therefore incurs no liability for the negligence or mistakes of its agents ; *' but it is equally well settled by a great preponderance of authority that a municipality is lia- ble for damages resulting from its neglect to properly dis- charge its ministerial duty to exercise reasonable care in the Am. St. Rep. 328; Albrittin v. Mayor, etc., of City of Huntsville, 60 Ala. 486, 31 Am. Rep. 46; Humphreys v. Armstrong County, 3 Brewst. (Pa.) 49; City of Erie v. Schwingle, 22 Pa. 384, 60 Am. Dec. 87. See, also, Cunlife v. Mayor, etc., of City of Albany, 2 Barb. (N. T.) 190. But see City of Albany v. Cunliff, 2 N. T. 165. *» Betliam v. City of Pbiladelphia, 196 Pa. 302, 46 Atl. 448; Press- man V. Borough of Dickson City, 13 Pa. Super. Ct. 236; Burger v. City of Pbiladelpbia, 196 Pa. 41, 46 Atl. 262 ; Bealafeld v. Borough of Verona, 188 Pa. 627, 41 Atl. 651; King v. Kansas City, 58 Kan. 334, 49 Pac. 88; "Champion v. Crandon, 84 Wis. 405, 54 N. W. 775, 19 L. R. A. 856; Cummins v. City of Seymour, 79 Ird. 491, 41 Am. Rep. 618; Mills V. City of Brooklyn, 32 N. Y. 489; Perry v. City of Wor- cester, 6 Gray (Mass.) 544, 66 Am. Dec. 431 ; Johnston v. District of Columbia, 118 V. S. 19, 6 Sup. Ct. 923, 30 L. Ed. 75; Child v. City ol Boston, 4 Allen (Mass.) 41, 81 Am. Dec. 680. Where the municipal authorities have adopted a plan of sewerage, they are not liable for damages resulting from an insufficiency in size of the sewers, though they may be for injuries resulting from negligence in their construction. Cooper v. Seranton City, 21 Pa. Super. Ct. 17. Mere omission of the municipality to provide adequate means for carrying ofC the water which accumulates will not sustain an action. Id. See Stevens v. City of Muskegon, 111 Mich. 72, 69 N. W. 227, 36 L. R. A. 777. But a city is not an insurer of the condition of its sewers, though, it is bound to use reasonable care in keeping them in repair. Weid- man v. New York, 84 App. Div. 321, 82 N. Y. Supp. 771. 404 TOETa (Ch. 12 construction and maintenance of its sewers." Even the New England states, and others, denying municipal liability for de- fective streets, generally recognize and enforce this rule with regard to sewers." The courts do not concur as to the ground of this distinction between sewers and streets; nor is there here space to set them forth. They are more interesting than important, and the curious are referred to the able opinion of Judge Holmes in a leading Massachusetts case.°f The true ground of responsibility for negligence in the care of sewers seems to be the same as in the care of highways, namely, the corporation has neglected its municipal duty to exercise rea- sonable diligence in the care and management of property un- der its control."* Municipal ownership is not essential to lia- bility; municipal control will be sufficient. °* On the con- trary, municipal ownership of the land over which the drain or sewer runs is not sufficient to cause liabiUty; °° municipal control is essential. And it has been held that when a sewer runs partly through private and partly through municipal property the corporation is liable for the entire damage done so Chalkley v. City of Richmond, 88 Va. 402, 14 S. E. 339, 29 Am. St. Rep. 730. And tlie question of liability of the city is not affected by the fact that the sewer was originally built by the state. Id. See Donahoe v. Kansas City, 136 Mo. 657, 38 S. W. 571;, Clay v. City of St. Albans, 43 W. Va. 539, 27 S. E. 368, 64 Am. St.' Rep. 883; City of Baltimore v. Schnitker, 84 Md. 34, 34 Atl. 1132; Flori v. City of St. Louis, 69 Mo. 341, 33 Am; Rep. 504 ; Stock v. City of Boston, 149 Mass. 410, 21 N. E. 871, 14 Am. St. Rep. 430 ; Rochester White Lead Co. V. City of Rochester, 3 N. Y. 463, 53 Am. Dec. 316 ; Kranz v. City of Baltimore, 64 Md. 491, 2 Atl. 908; City of Detroit v. Corey, 9 Mich. 165, 80 Am. Dec. 78 ; City Council of Montgomery v. Gilmer, -33 Ala. 116, 70 Am. Dec. 562; Semple v. Mayor, etc., of City of Vicksburg, 62 Miss. 63, 52 Am. Rep. 181. 51 Oilman v. Town of Laconia, 55 N. H. 130, 20 Am. Rep. 175; Bates V. Inhabitants of Westborough, 151 Mass. 174, 23 N. E. 1070, 7 L. R. A. 156; Judge v. City of Meriden, 38 Conn. 90. 52 Bates V. Inhabitants of W6stborough, supra. 53 Tindley v. City of Salem, 137 Mass. 171, 50 Am. Rep. 289. 54 Taylor v. City of Austin, 32 Minn. 247, 20 N. W. 157. 55 Kosmak v. Mayor, etc., of City of New York, 117 N. Y. 361, 22 N. E. 945. § 122) DEAINS AND SEWEES 4:05 by overflow at its outlet."' In one of the two states '"' least inclined to the doctrine of municipal liability for neglect to re- pair sewers, the Supreme Court, after elaborate consideration, expressed this conclusion: "The defendant is not responsible for the consequences of a break in the sewer in question per se, even though it be the result of the carelessness of its own agents, for the public is not responsible for such misfeasances of its officers ; but when such break has occurred, occasioning a private nuisance exclusively, and the public authorities have been notified of the accident, we think that then they owe a duty to the individual to put the sewer in a proper condition, and that for the nonperformance of such duty an action will lie." "' It has been held that a municipality is liable for dam- ages sustained by individual owners from the flooding of their premises by drains or sewers ;°° and from the depositing of sewage upon their lands, though this be a necessary result of the plan adopted."* So, also, damages may be recovered by 5 6 Stoddard v. Village of Saratoga Springs, 127 N. Y. 261, 27 N. B. 1030. A municipal corporation having power to construct sewers in its streets is liable for improperly locating and constructing the outlet of a sewer, which is principally located along the streets, so as to dis- charge the sewage on plaintiff's premises, though the lower part of the sewer, including the outlet, is located on private grounds. Id. See Beach v. Caty of Blmira, 58 Hun, 606, 11 N. Y. Supp. 913. , B7 California and New Jersey. B 8 Jersey City v. Kiernan, 50 N. J. Law, 246, 13 Atl. 170. Cf. Spangler v. San Francisco, 84 Cal. 12, 23 Pac. 1091, 18 Am. St. Rep. 158. eo McCartney v. City of Philadelphia, 22 Pa. Super. Ct 257; Sem- ple V. Mayor, etc., of City of Vicksburg, 62 Miss. 63, 52 Am. Eep. 181 ; Imler v. City of Springfield, 55 Mo. 119, 17 Am. Kep. 645; Ashley v. , City of Port Huron, 35 Mich. 296, 24 Am. Rep. 552; Stanchfleld v. Newton, 142 Mass. 110, 7 N. E. 703. A city is not liable because surface water flows from a street upon an adjoining lot. Jordan v. City of Benwood, 42 W. Va. 312, 26 S. E. 266, 36 L. R. A. 519, 57 Am. St. Rep. 859 ; Sievers v. City and Coun- ty of San Francisco, 115 Cal. 648, 47 Pac. 687, 56 Am. St. Rep. 153. Cf. City of Denver v. Dunsmore, 7 Colo. 328, 3 Pac. 705 ; Smith v. Mayor, etc., of aty of New York, 66 N. Y. 295, 23 Am. Rep. 53. 60 Bennett v. Marion, 119 Iowa, 473, 93 N. W. 558; McBride v. City 406 TORTS . (Ch. 12 private action for the pollution of a stream by sewage so as to render the water unfit for use by the riparian owner or oc- cupier;*^ and in some cases the municipality has been en- joined from emptying its sewage into a running stream, where- by a public nuisance was created."* RESPONDEAT SUPERIOR 123. The liability of municipal corporations in most cases of tort rests upon the general doctrine of the common law that the master is liable for the wrongs done by the servant when acting within the scope of his employment. The difficulties encountered in the application of this doc- trine to private corporations, as shown in the multitude of of Akron, 12 Ohio Cir. Ct. E. 610, 6 O. C. D. 739; Owens v. City of Lancaster, 182 Pa. 257, 37 Atl. 858; Bacon v. City of Boston, 154 Mass. 100, 28 N. E. 9; Magee v., City of Brooklyn, 18 App. Div. 22, 45 N. Y. Supp. 478 ; Boston Belting Co. v. City of Boston, 149 Mass. 44, 20 N. B. 320 ; City of Ft. "Wayne v. Coombs, 107 Ind. 75, 7 N. E. 743, 57 Am. Rep. 82 ; Attwood v. City of Bangor, 83 Me. 582, 22 Atl. 466; City of Nashville v. Comar, 88 Tenn. 415, 12 S. W. 1027; Stod- dard V. Village of Saratoga Springs, 127 N. Y. 261, 27 N. E. 1030. 61 Pettigrew v. Village of Evansville, 25 Wis. 223, 3 Am. Rep. 50; Gould V. City of Rochester, 105 N. Y. 46, 12 N. E. 275; Inman v. Tripp, 11 R. I. 520, 23 Am. Rep. 520. The pollution of a flowing stream by emptying into it the sewage of a city, contaminating and poisoning its waters, and rendering it unfit for use by persons through whose premises it flows, is a public nuisance. Mayor, etc., of Birmingham v. Land, 137 Ala. 538, 34 South. 613 ; City of Mansfield v. Balliett, 65 Ohio St. 451, 63 N. E. 86, 58 L. R. A. 628; Owens v. City of Lancaster, supra. It has been held that a city has the right to construct drains to conduct the surface water from its streets into a ditch or drain which is a natural water course, so long as reasonable care and skill are exercised in doing the work. Miller & Meyers v. Newport News, 101 Va. 432, 44 S. E. 712. 62 Haskell v. City of New Bedford, 108 Mass. 208 ; Peterson v. aty of Santa Rosa, 119 Cal. 387, 51 Pac. 557; People ex rel. Lind v. City of San Luis Obispo, 116 Cal. 617, 48 Pac. 723. § 123) EESPONDEAT SUPEEIOH 407 adjudged cases upon the subject, are enhanced in its attempted application to municipalities. What officers are agents, and what acts of theirs may render the municipality hable for tort, are questions of inherent difficulty, because of the dual na- ture of the corporation. Obviously, there can be no liability for tort unless there has been a violation of some municipal duty ; nor can a corporation be held liable for the acts of of- ficers whom it does not control. But the corporation may be liable for the conduct of officers not appointed by it, but by the state for it.°' In a leading case in New York the follow- ing test of liability has been declared : "To determine whether there is municipal responsibility, the inquiry must be whether the department whose misfeasance or nonfeasance is com- plained of is a part of the machinery for carrying on the mu- nicipal government, and whether it was at the time engaged in the discharge of a duty, or charged with a duty primarily rest- ing upon the municipality." ** An able author on the subject has thus stated the rule governing liability in such cases : "For the acts of an independent officer, whose duties are fixed and prescribed by law, the city cannot be held chargeable upon the principle of respondeat superior, for the relation of master and servant does not exist. Such officers are quasi civil of- ficers of the government, even though appointed by the cor- poration. But an exception to this rule exists when the cor- poration is under an absolute duty to perform the acts which are devolved upon such officers, or when the corporation, as such, derives an immediate profit and advantage therefrom." *° The application of these fundamental rules to the facts of any case will usually determine the question of municipal liability for the misfeasance or nonfeasance of its officers. 63 Bailey v. Mayor, etc., of City of New York, 3 Hill (N. Y.) 531, 38' Am. Dec. 669; District of Columbia v. Woodbury, 136 U. S. 450, 10 Sup. Ct. 990, 34 L. Ed. 472. ^Pettengill v. City of Yonkers, 116 N. Y. 558, 22 N. E. 1095, 15 Am. St. Rep. 442. 6 5 Wood, Mast. & Serv. § 463. See Sievers v. City and County of San Francisco, 115 Cal. 648, 47 Pac. 687, 56 Am. St. Rep. 153. 408 T0KT3 (Ch. 12 Independent Contractors The general rule that a corporation Is not liable for injuries resulting from the acts of an independent contractor is ap- plicable to municipal as well as private corporations; but this rule does not excuse a municipality from liability for damages caused by its failure to perform an absolute duty owing to the public.*" It has been held, therefore, that a municipal cor- poration will be liable for the negligence of independent con- tractors in the building of sewers and cisterns,*^ or in grading or repairing streets ;°° since in these matters it owes the ab- solute duty of reasonable care. The defense of negligence of a fellow servant in the same department of public works has been sustained in some states ; *® but this defense is not al- lowed where both the negligent and the injured erriploye are not engaged in the same department of service.'^ «8 City of Omaha v. Jensen, 35 Neb. 68, 52 N. W. 833, 37 Am. St. Rep. 432 ; City of Louisville v. Shanahan (Ky.) 56 S. W. 808 ; 2 Dill. Mun. Corp. §§ 1028, 1029. 7 Mayor, etc., of City of Nashville v. Brown, 9 Heisk. (Tenn.) 1, 24 Am. Kep. 289. 68 City of Omaha v. Jensen, 35 Neb. 68, 52 N. W. 833, 37 Am. St. Rep. 432. The duty of caring for and supervising the condition of its public streets is one which rests upon a municipality as such, and the doc- trine of respondeat superior applies. Hall v. City of Austin, 73 Minn. 134, 75 N. W. 1121. 8»McDermott v. City of Boston, 133 Mass. 349; Dube v. City of Lewiston, 83 Me. 211, 22 Atl. 112. 70 Palmer v. City of Port;smouth, 43 N. H. 265; Wanamaker v. City of Rochester, 63 Hun, 625, 17 N. Y. Supp. 321. § 124) DLTBA VIKE3 409 ULTRA VIRES 124. A municipal corporation is not civilly liable for dam- ages suffered by individuals in person or prop- erty which are caused by the tortious acts of mu- nicipal agents or officers assuming to represent it in matters wholly ultra vires. A municipal corporation cannot confer upon its agents or officers lawful authority to represent it beyond the scope of its charter powers. For acts not governmental, but strictly cor- porate or municipal within the scope of the municipal powers ■exercised for a municipal purpose, the municipality may be liable for misfeasance; as in the negligent construction by officers of a sewer not authorized or directed by the municipal <:ouncil;'^ or in the forcible and irregular taking of private property without pursuing the legal and authorized procedure for exercising eminent domain and compensating the owner. ^^ •Or it may be liable for nonfeasance in failing to perform a municipal duty whereby individuals are injured either in per- son or property.^' But for the malfeasance of agents or of- ficers of the corporation in assuming to do acts which are en- tirely beyond the municipal powers and purposes, and cannot, therefore, be lawfully authorized by the municipality, the cor- poration cannot be held liable in damages to persons suffering injuries therefrom. This logical doctrine, based upon ele- mentary principles of the common law, received general, if not universal, recognition in America by the concurrent decisions 71 Stoddard v. Village of Saratoga Springs, 127 N. Y. 261, 27 N. E. 1030. 7 2 Hunt V. City of Boonville, 65 Mo. 620, 27 Am. Rep. 299. 7 3 City of Oalveston v. Posnainsky, 62 Tex. 118, 50 Am. Rep. 517; €ity of Ft. Worth v. Crawford, 74 Tex. 404, 12 S. W. 52, 15 Am. St Rep. 840; Moore v. City of Los Angeles, 72 Cal. 287, 13 Pac. 855; tioughran v. City of Des Moines, 72 Iowa, 382, 34 N. W. 172. 410 TORTS (Ch. 12 of the courts for almost a century.''* It was applied in all civil actions for torts caused by the mdfeasance of corporate officers or agents when pursuing any undertaking not within the scope of municipal purposes or powers, express, inherent, or implied; and it still remains the general doctrine of the courts, though not so firmly established and universally recog- nized as formerly. Sait Lake City Case The stability of this doctrine of the law is supposed to be shaken by the decision of the Supreme Court of the United States in the unique case of Salt Lake City v. Hollister,'^ wherein Mr. Justice Miller, in delivering the opinion of the court, said :^ "The truth is that, with the great increase in corporations in very recent times, and in their extension to nearly all the business transactions of life, it has been found necessary to hold them responsible for acts not strictly with- in their corporate powers, but done in their corporate name, and by corporation officers, who were competent to exercise all the corporate powers. When such acts are not founded on contract, but are arbitrary exercises of power in the nature of torts, or are quasi criminal, the corporation may be held to a pecuniary responsibility for them to the party injured.'Jl"' Concerning this a recent author says : "The effect of this de- cision is to broaden materially the view of liability. of munici- pal corporations for torts, and it is a strong authority in sup- port of the contention that these bodies should be liable for negligence in respect to their ultra vires acts. * * * Such an act of the corporation is made doubly wrongful by the fact that it is in excess of the corporate power, and for the dam- 7 4 Wabaska Electric Co. v. City of W^more, 60 Neb. 199, 82 N. W. 626. The acts of city authorities In cutting a ditch along the side of a lot outside the city limils are ultra vires, and hence the city is not liable for Injuries resulting therefrom to the lot owner. Loyd V. City of Columbus, 90 Ga. 20, 15 S. B. 818. 76 118 U. S. 256, 6 Sup. Ct. 1055, 30 L. Ed. 176. " 118 U. S. 261, 6 Sup. Ct. 1058, 30 L. Ed. 176. § 124) ULTRA VIEE8 411 ages resulting from it the corporation should respond." '^ On the contrary, Judge Dillon, in a brief criticism of the com- prehensive language of this opinion, says: "The judgment of the court, which, on the special facts, was unquestionably sound, need not necessarily rest upon so broad a basis as the one above indicated, and the observation of the court in the opinion must be limited accordingly. * * * Such a view, if sound as respects private corporations, would seem not to be so as respects municipal corporations, whose powers are defined and limited for the express purpose of protecting the inhabitants from just such liability." '* Doctrine Not Unsettled An examination of this case shows the foregoing language of Mr. Justice Miller to be an obiter dictum, and supports the criticism of Judge Dillon. Salt Lake City, having erected a distillery, proceeded without authority to engage in the busi- ness of distilling spirits, and while so doing, in violation of the United States revenue laws, made fraudulent returns of the quantity of spirits produced. Its fraud was detected, and a lawful assessment made upon the city as a distiller for the gallon tax upon the liquor actually produced and fraudulently •omitted from the required report. To enforce the collection of this tax and penalty, the government was about to seize municipal property, whereupon the city, to save its property, paid tine tax under protest, and then brought action against the collector to recover the amount so paid. The ground of its action was that the business of distilling spirits by Salt Lake City was ultra vires. The very impudence of the con- tention provoked the court to pungent ridicule of the plaintiff's action, ^v' and naturally strong language was used in refuting 77 Jones, Negl. Mun. Corp. § 177. 78 2 Dill. Mun. Corp. p. 1192, note. 7 9 "It would be a fine thing, if this argument Is good, for all distillers to organize into milling corporations to make flour, and proceed to the more profitable business of distilling spirits, which would be unauthorized by their charters or articles of incorporation ; 412 T0RT3 (Gh.l2 its absurd contention and denying its demand. But the ques- tion in the case was not whether a municipality is liable in a civil action to an individual injured by the tortious acts of its agents or officers ultra vires, but only whether it could recover from the government a sum of money paid under protest to avoid seizure of its property for a lawful tax and penalty. And accordingly the digest syllabus thus accurately expresses the decision in the case : "A municipal corporation engaged in the business of distilling spirits is subject to internal revenue taxes under the laws of the United States, whether its acts in this respect are or are not ultra vires." *" The gist of the de- cision is found in the following excerpt from the opinion : "A municipal corporation cannot, any more than any other cor- poration or private person, escape the taxes due on its prop- erty, whether acquired legally or illegally ; and it cannot make its want of legal authority to engage in a particular transac- tion or business a shelter from the taxation imposed by the government on such business or transaction, by whomsoever conducted." *^ The fundamental rules of law upon which a person or cor- poration becomes liable for a tax are so widely different from those which declare liability for a tort that even these cogent words of Justice Miller, used arguendo in the decision of a revenue case, are not Ijkely to UDJgttlg the logical rule as to torts to private individuals established by the concurrent de- cisions of courts of last resort through scores of years in the United States. for they would thus escape taxation, and ruin all competition." 118 U. S. 259, 6 Sup. Ct. 1057, 30 L. Ed. 176. 80 3 Russ & W. Syl. Dig. p. 3517. 81 118 U. S. 262, 6 Sup. Ct 1059, 30 I/. Ed. 176. Ch, 13) DEBTS, FUNDS, EXPENSES, ETC. 413 CHAPTER XIII DEBTS, FUNDS, EXPENSES, AND ADMINISTRATION 125. Indebtedness. 126. Limitation of Indebtedness. 127. Borrowing Money. 12S-129. Municipal Bonds — Power to Issue. 130. Municipal Warrants. 131. Funds. 132. Rights of Creditors. 133. Expenses. 134. Budget. 135. Claims. 136. Appropriation. INDEBTEDNESS 125. Within the scope of its charter powers, a municipality, in the exercise of corporate functions and transac- tion of municipal affairs, may incur indebtedness to any extent not forbidden by law. A municipal corporation, as an agency of the state for more efficient local government, must inevitably incur expenses in the necessary performance of its various municipal functions. These expenses, unless paid for as fast as incurred, stand as obligations of the municipality, to be met and discharged like those of other corporations and individuals um^er the law. For this purpose the power of taxation is conferred upon the municipality, and thus annually it is supposed to receive suffi- cient revenue to discharge its indebtedness. But so rapid has been the growth of American cities and towns that it has been found impossible in practice to provide annual revenues equal to the annual expenditures; must less to provide them in advance. From this it results that American municipalities, as a rule, live in the condition of constant indebtedness, excep- tions to which are of very rare occurrence. 414 DEBTS, FUNDS, EXPENSES. ETC. (Ch. 13 Amount Clothed with the power of eminent domain, and the inher- ent power to contract, and required to exercise police pow- ers, and some of these at its peril, a municipality must neces- sarily incur large expense, the amount of which, under the American rules of local self-government, properly rest in the discretion of the municipality; and, in the absence of consti- tutional or statutory limitations, this discretion as to amount is unbounded.^ The law is, however, imperative that, to con- stitute a valid indebtedness, the expenditure must be incurred within charter powers and for municipal purposes.^ Within these boundaries the municipality may 'go on incurring indebt- edness at its pleasure to the statutory limit. LIMITATION OF INDEBTEDNESS 126. Limitation to municipal indebtedness may be fixed ei- ther by statute or constitution, beyond which no obligation can be incurred by the municipality. Limitations upon municipal indebtedness, either by consti- tution or statute, are to be found in nearly all the American states. The limit is usually fixed at a certain per cent, or aliquot part of the total assessed value of real estate, or real and personal property, in the corporate limits.^ The form of 1 Coggeshall V. City of Des Moines, 78 Iowa, 235, 41 N. W. 617; City of Galena v. Corwltli, 48 111. 423, 95 Am. Dec. 557. - 2 Brenham v. German-American Bank, , 144 U. S. 173, 12 Sup. Ct. 559, 86 L. Ed. 390 ; Id., 144 U. S. 549, 12 Sup. Ct. 975, 36 L. Ed. 399 ; Clark V. City of Des Moines, 19 Iowa, 199, 87 Am. Dec. 423 ; Bissell V. City of Kankakee, 64 111. 249, 21 Am. Rep. 554; Hasbrouck v. City of Milwaukee, 13 Wis. 37, 80 Am. Dec. 718; Hequembourg v. City of Dunkirk, 49 Hun, 550, 2 N. Y. Supp. 447. 3 Nalle V. City of Austin (Tex. Civ. App.) 42 S. W. 780 ; Duncan v. City of Charleston, 60 S. C. 532, 39 S. E. 265; Keller v. City^ of Scranton, 200 Pa. 130, 49 Atl. 781, 86 Am. St. Rep. 709 ; Herman v. City of Oconto, 110 Wis. 660, 86 N. W. 681; Rice v. City of Mil- waukee, 100 Wis. 516, 76 N. W. 341 ; Allen v. City of Davenport, 107 § 126) LIMITATION OF INDEBTEDNESS 415 such constitutional inhibition is usually such as to prevent either the Legislature or the municipality from passing the constitutional limit; in which case all indebtedness, howso- ever incurred, beyond this limitation is void.* Limitation may also be fixed in the charter, or by general statute, which can- not be transgressed by the municipality ; ' but such boundary Iowa, 90, 77 N. W. 532 ; Reynolds v. City of Waterville, 92 Me. 292, 42 Atl. 553; Weber v. DlUon, 7 Okl. 568, 54 Pac. 894; PhUlips v. Reed, 107 Iowa, 331, 76 N. W. 850 ; Freeman v. City of Huron, 10 S. D. 368, 73 N. W. 260 ; Darling v. Taylor, 7 N. D. 538, 75 N. W. 766; School Town of Winamac v. Hess, 151 Ind. 229, 50 N. E. 81; Graham v. City of Spokane, 19 Wash. 447, 53 Pac. 714 ; Faulkner v. City of Seattle, 19 Wash. 320, 53 Pac. 365 ; Epping v. Columbus, 117 Ga. 2€3, 43 S. E. 803; RofC v. Calhoun, 117 Ga. 263, 43 S. E. 803; Swanson v. Ottumwa, 118 Iowa, 161, 91 N. W. 1048, 59 L. R. A. 620 ; Beck V. St. Paul, 87 Minn. 381, 92 N. W. 328 ; Kronsbein v. Roches- ter, 76 App. Div. 494, 78 N. Y. Supp. 813; City of Austin v. Valle (Tex. Civ. App.) 71 S. W. 414 ; People ex rel. O'Meara v. City Coun- cil of Salt Lake City, 23 Utah, 13, 64 Pac. 460. See, also, Browne V. City of Boston, 179 Mass. 321, 60 N. E. 934. The Constitution of Pennsylvania, art. 9, § 8, illustrates such an inhibition in few words: "The debt of any * • * city, * * * except as herein provided, shall never exceed seven per centum upon the assessed value of the taxable property therein." Where the actual and assessed value of taxable property is not the same, the computation is to be made upon the assessed value. City Water Supply Co. v. City of Ottumwa (C. C.) 120 Fed. 309. * Balch V. Beach, 119 Wis. 77, 95 N. W. 132 ; Grady v. Landram, 63 S. W. 284, 23 Ky. Law Rep. 506 ; Duncan v. Charleston, supra ; City of Helena v. Mills, 94 Fed. 916, 36 C. C. A. 1 ; City Water Sup- ply Co. V. City of Ottumwa, supra ; German Ins. Co. v. Manning (C. C.) 95 Fed. 597. See State ex rel. Riter v. Quayle, 26 Utah, 26, 71 Pac. 1060; Mayor, etc., of Baltimore v. Gill, 31 Md. 375; People v. May, 9 Colo. 80, 10 Pac. 641 ; Buchanan v. Litchfield, 102 U. S. 278, 26 L. Ed. 138; Dixon County v. Field, 111 U. S. 83, 4 Sup. Ot. 315, 28 L. Ed. 360 ; Litchfield v. Ballou, 114 U. S. 190, 5 Sup. Ot. 820, 29 L. Ed. 132 ; Lake County v. Rollins, 130 U. S. 662, 9 Sup. Ct 651, 32 L. Ed. 1060; Spilman v. City of Parkersburg, 35 W. Va. 605, 14 S. E. 279; Quill v. City of Indianapolis, 124 Ind. 292, 23 N. E. 788, 7 L. R. A. 681; City of Indianapolis v. Wann, 144 Ind. 175, 42 N. E. 901, 31 L. R. A. 743; John Hancock Mut. Life Ins. Co. v. City of Huron, 100 Fed. 1001, 40 C. C. A. 683 ; Prickett v. City of Marceline (0. C.) 65 Fed. 469. 5 Jutte & Foley Co. v. City of Altoona, 94 Fed. 61, 36 C. C; A. 84 ; McDonald V. Mayor, etc., of City of New York, 68 N. Y. 23, 23 Am. 416 DEBTS, FUNDS, EXPENSES, ETC. (Ch. 13 being fixed by the Legislature may likewise be transgressed by it, and indebtedness beyond the statutory limit may be im- posed upon the municipality by the Legislature.* Kinds of Indebtedness The recognized classes of municipal indebtedness ar.e two, (1) bonded and (2) current; and much contention has arisen, in consequence of the joint efforts of reckless municipalities and speculative investors to transgress the. prescribed limits, as to whether the prohibition included all classes of municipal indebtedness. In some cases there is manifested a disposition in the courts to give liberal construction to such limitations ; ^ but by far the ^eater weight of authority favors such strict construction of these statutory and constitutional prohibitions as will include all classes of debts, and thereby protect the citizens from overburdensome taxation.* Sum Total — How Computed By the weight of jjjdjcial qginion the total amount of mu- nicipal indebtedness is to be ascertained by adding together Rep. 144; Keeney v. Mayor, etc., of Jersey City, 47 N. J. Law, 449, 1 Atl. 511; Nelson v. Mayor, etc., of City of New York, 63 N. Y. 535; Mayor, etc., of City of Rome v. McWilliams, 67 Ga. 106. 8 Mosher v. Independent School Dist. of Ackley, 44 Iowa, 122. ■' Wells V. Sioux Falls, 16 S. D. 547, 94 N. W. 425 ; Barnard & Co. V. Knox County (C. C.) 37 Fed. 563, 2 L. R. a; 426 ; Kelly v. City of Minneapolis, 63 Minn. 125, 65 N. W. 115, 30 L. R. A. 281 ; State ex rel. Marinette, T. & W. R. Co. v. Common Council of City of Toma- hawk, 96 Wis. 73, 71 N. W. 86; Todd v. City of Laurens, 48 S. C. 395, 26 S. E. €82. 8 Schultze V. Township of Manchester, 61 N. J. Law, 513, 40 Atl. 589; City of Chicago v. McDonald, 176 111. 404, 52 N. B. 982; CITY OF LAPORTE v. GAMEWELL FIRE ALARM TELEGRAPH CO., 146 Ind. 466, 45 N. E. 588, 35 L. R. A. 686, 58 Am. St. Rep. 359, Cool- ey, Cas. Mun. Corp. 299 ; City of Walla Walla v. Walla Walla Wa- ter Co., 172 V. S. 1, 19 Sup. Ct. 77, 43 L. Ed. 341; Niles Water- Works V. City of Niles, 59 Mich. 311, 26 N. W. 525 ; Buck v. City of Eureka, 124 Cal. 61, 56 Pac. 612; Lake County v. Graham, 130 U, S. 674, 9 Sup. Ct. 654, 32 L. Ed. 1065; People v. May, 9 Colo. 414, 15 Pac. -36 ; Doon Dist. Tp. y. Cummins, 142 U. S. 366, 12 Sup. Ct 222, 35 L. Ed. 1044 ; Francis v. Howard County (C. C.) 50 Fed. 44. § 126) LIMITATION OF INDEBTEDNESS 417 all bonded and current indebtedness^^ including both imposed and voluntary, and not only present but future obligations, if they be vested or fixed,^" and also the annual sum payable upon any continuing contract of rental or service. ^^ The sum total thus ascertained will be the limit to the municipal power to incur indebtedness. But bonds issued to fund or refund a valid existing indebtedness neither create nor increase the debt, but merely change its form, and are not, therefore, open to objection on the ground that the limitation has been ex- ceeded.^^ 9 Sackett v. City of New Albany, 88 Ind. 473, 45 Am. Rep. 467 ; Litchfield v. Ballou, 114 V. S. 190, 5 Sup. Ct. 820, 29 L. Ed. 132; Lake County v. RoUins, 136 U. S. 662, 9 Sup. Ct. 651, 32 L. Ed. 1060 ; Epping V. Columbus, 117 Ga. 263, 43 S. E. 803 ; Balch v. Beach, 119 Wis. 77, 95 N. W. 132 ; Stone v. Chicago, 207 111. 492, 69 N. E. 970. 10 CITY OP LAPORTE v. GAMEWELL FIRE ALARM TELE- GRAPH CO., 146 Ind. 466, 45 N. E. 588, 35 L. R. A. 686, 58 Am. St. Rep. 359, Cooley, Cas. Mun. Corp. 299 ; Beard v. Hopkinsville, 95 Ky. 289, 24 S. W. 872, 23 L. R. A. 402, 44 Am. St. Rep. 222 ; Niles Water Works V. City of Niles, supra. The limitation applies to indebted- ness imposed by the Legislature as well as that voluntarily incur- red by the corporate authorities. Martin v. Territory, 5 Okl. 188, 48 Pac. 106. 11 Baltimore & O. S. W. R. Co. v. People ex rel., 200 111. 541, 66 N. E. 148; Stedman v. City of Berlin, 97 Wis. 505, 73 N. W. 57; Crowder v. Town of Sullivan, 128 Ind. 486, 28 N. E. 94, 13 L. R. A. 647; Lott v. Mayor, etc., of City of Waycross, 84 Ga. 681, 11 S. E. 558 ; Brown v. City of Corry, 175 Pa. 528, 34 Atl. 854 ; City of East St. Louis V. East St. Louis Gaslight & Coke Co., 98 111. 415, 38 Am. Rep. 97 ; Smith v. Dedham, 144 Mass. 177, 10 N. E. 782. But see City of CentervUle v. Fidelity Trust & Guaranty Co., 118 Fed. 332, 55 C. C. A. 348 ; Cain v. City of Wyoming, 104 111. App. 538 ; Niles Water Works V. City of Niles, supra ; State v. Medbery, 7 Ohio St. 523. 12 Heins v. Lincoln, 102 Iowa, 69, 71 N. W. 189 ; Hirt v. City of Erie, 200 Pa. 223, 49 Atl. 796 ; City of Huron v. Second Ward Sav- ings Bank, 86 Fed. 272, 30 C. C. A. 38, 49 L. R. A. 534. CooL.MxrN.CoEP. — 27 418 DEBTS, FUNDS, EXPENSES, ETC. (Ch. 13 BORROWING MONEY 127. Express power to incur indebtedness by borrowing money on the municipal credit may be conferred upon a municipal corporation either by charter or by general law. Like power may also be implied as appropriate and neces- sary for the proper and efficient exercise of the mu- nicipal powers expressly conferred upon the cor- poration. Lacking express or implied power for such purposes, a municipality does not possess inherent power to in- cur municipal indebtedness by borrowing money on municipal credit. Until the era of municipal extravagance had come to Amer- ica, municipal corporations had been wont to borrow money, and give their notes or bonds therefor, without serious doubt or question as to the existence or source of such power; and it had accordingly been recognized in several cases that notes or bonds given by municipalities for money borrowed were valid municipal obligations.^^ And it is still generally, if not universally, conceded that a municipal corporation, under ex- press authority or authority clearly implied, may incur indebt- edness by borrowing money for municipal purposes.^* But upon recent challenge it has been declared in the Supreme Court of the United States that the power to borrow money is not an incidental and necessary power of a municipal cor- 13 City of Quincy v. Warfield, 25 111. 317, 79 Am. Dec. 330; De Voss V. City of Riclimond, 18 Grat. (Va.) 338, 98 Am. Dec. 646, and note ; President, etc., of Bank of Chillicothe v. Mayor, etc., of Town of Chillicothe, 7 Ohio, 31, pt. 2, 30 Am. De& 185 ; Mills v. Gleason, 11 "Wis. 470, 78 Am. Dec. 721. i< City of Tyler v. L. L. Jester & Co. (Tex. Civ. App.) 74 S. W. 359; 1 Dijl. Mun. Corp. §§ 117-120, and notes. § 127) BORROWING MONEY 419 poration ; ]J^ and that to create a valid indebtedness for money borrowed by a municipality there must exist either express authority, or the same must be ckarly implied from granted powers.^' To this view has been added the great weight of the opinion of Judge Dillon,^^ and the concurrence of some of the state Supreme Courts,^* and it is probable that the pre- ponderance of judicial opinion is against the inherent power of a municipality to borrow money. There are certain con- trary decisions, however, which are irreconcilable with this view; ^* but many of the cases supposed to favor the inherent power of a corporation to borrow money will be found on close scrutiny, and limitation of the language to the facts of the cases, to be authority only for the doctrine that this power may be implied as necessary and proper to carry out the express powers conferred upon the municipality.^" It is believed, therefore, that the great majority of the adjudged cases can 15 Opinion of Bradley, J., In Nashville v. Ray, 19 Wall. (U. S.) 479, 22 L. Ed. 164. 10 Nashville v. Ray, 19 Wall. (U. S.) 468, 22 L. Ed. 164. See, also, Watson V. City of Huron, 97 Fed. 449, 38 C. C. A. 264. 1' 1 Dill. Mun. Corp. § 125. 18 Swackhamer v. Town of HacUettstown, 37 N. J. Law, 191; Robertson v. Breedlove, 61 Tex. 316 ; ALLEN v. INTENDANT AND COUNCILMEN OF CITY OF LA FAYETTE, 89 Ala. 641, 8 South. 30, 9 L. R. A. 497, Cooley, Cas. Mun. Corp. 303. The power to borrow moneyj incur indebtedness, and issue bonds on behalf of the people of the state or any subdivision thereof is the function of the Legislature to exercise itself, or to delegate to municipal or quasi municipal corporations. Board of Gom'rs of Seward County, Kan., v. .iEtna Life Insurance Co., 90 Fed. 222, 32 C. C. A. 585. 19 Miller v. Board of Com'rs of Dearborn County, 66 Ind. 162; City of Willlamsport v. Com. ex rel. Bair, 84 Pa. 487, 24 Am. Rep. 208; Com. ex rel. Reinboth v. Councils of Pittsburgh, 41 Pa. 278; President, etc., of Bank of Chillicothe v. Mayor, etc., of Town of Chillicothe, 7 Ohio, 31, pt. 2, 30 Am. Dec. 185. 2 Mills V. Gleason, 11 Wis. 470, 78 Am. Dec. 721; Clarke v. School Dist, 3 R. I. 199 ; State v. Babcock, 22 Neb. 614, 35 N. W. 941 ; Cur- tis V. Leavitt,l5 N. Y. 9; City of Richmond v. McGirr, 78 Ind. 192; Wells V. Town of Salina,'119 N. Y. 280, 23 N. E. 870, 7 L. R. A. 75ft 420 DEBTS, FUNDS, EXPENSES, ETC. (Ch. 13 be reconciled upon the basis of the sound and safe doctrines stated in the heading of this section. MUNICIPAL BONDS— POWER TO ISSUE 128. Municipal bonds are now generally understood to mean negotiable bonds issued by a municipality as security for its indebtedness. 129. Authority to issue municipal bonds is not inherent in a municipality, but may be expressly conferred by the legislature, or may be implied as necessary to the exercise of the express powers. Municipal bonds are not necessarily negotiable. They may in form lack some element of negotiability, or may include some phrase rendering them nonnegotiable. But the custom of making such bonds negotiable in form has l?ecome so preva- lent as to be almost universal, and the term "municipal bonds" in modern parlance implies negotiability." They are gener- ally issued as security for a loan of money to the municipality. But sometimes they are used to subsidize a quasi public corpo- ration engaged in some undertaking of advantage to the mu- nicipality, such as a railroad, gas, water, or electric company. Power to Issue The general subject of the power of a municipal corporation to issue bonds, like that of its power to borrow money, has undergone much judicial examination, and there are cases holding that the power to issue bonds is inh§|:eijt in the mu- nicipality ; ^ but most of these cases on examination will be found as sustaining rather the implied than the inherent pow- er of a municipality to issue bonds, and it is believed that the 21 Black, Law Diet tit. "Municipal Bonds." 22 Com. ex rel. Reinboth v. Councils of Pittsburgh, 41 Pa. 278; Clark v. City of Janesville, 10 Wis. 136. §§ 128-129) MUNICIPAL BONDS — POWEE TO ISSUE 421 great majority of the apparently conflicting decisions on this subject, as well as on the subject of borrowing money, may be reconciled upon the foregoing statement.^' This power to issue negotiable paper will be implied from the express power to borrow money ; ^* but the courts have been generally averse to any svich implication where the bonds are to be used as municipal aid to the construction of a railroad, either by sub- scription to stock or purchase of bonds.^° Usually the stat- ute authorizing the issuance of such bonds provides for a submission of the question to popular vote, and authorizes their issuance only when favored by a majority of the electors or taxpayers of the municipality. Validity Municipal bonds, being generally issued for the purpose of obtaining a loan of money on favorable terms, are made pay- able to bearer and pass by delivery. They are therefore held ^:ee from glj equities which might exist in favor of the cor- poration,^ and the only defense open to the municipality is 23 An inherent power exists in the municipality as an essential function of its corporate existence, and Independent of its granted powers. Smith v. City of Newbern, 70 N. C. 14, 16 Am. Rep. 766. 2* City of Galena v. Corwith, 48 111. 423, 95 Am. Dec. 557; De Voss V. City of Richmond, 18 Grat. (Va.) 338, 98 Am. Dec. 646; MERRILL V. TOWN OF MONTICBLLO, 138 U. S. 673, 11 Sup. Ct. 441, 34 L. Ed. 1069, Cooley, Cas. Mun. Corp. 309. 2 5Flsk V. City of Kenosha, 26 Wis. 23; Williamson v. City of Keokuk, 44 Iowa, 88; Pitzman v. Village of Freeburg, 92 111. Ill; DODGE V. CITY OF MEMPHIS (C. O.) 51 Fed. 165, Cooley, Cas. Mun. Corp. 317 ; Coloma v. Eaves, 92 V. S. 484, 23 L. Ed. 579 ; Mis- sissippi, O. & R. R. R. Co. V. Mayor, etc., of City of Camden, 23 Ark. 300; Pennsylvania R. Co. v. City of Philadelphia, 47 Pa. 189; Toung V. Clarendon Tp., 132 U. S. 340, 10 Sup. Ct. 107, 33 L. Ed. 356. But in Jennings Banking & Trust Co. v. Jefferson, 30 Tex. Civ. App. 534, 70 S. W. 1005, it was held that where a city charter au- thorizes the issuance of bonds to aid in the construction of railroads to and from the city, the authority to issue bonds for the purchase of lands for depots would be implied. See WetzeU v. City of Pa- ducah (C. C.) 117 Fed. 647. 2 6 Citizens' Sav. Bank v. Greenburgh, 173 N. Y. 215, 65 N. E. 978. 422 DEBTS, FUNDS, EXPENSES, ETC. (Ch. 13 want of authority for their issuance." Upon this subject the same considerations are pertinent and rules applicable in re- gard to county bonds.^* MUNICIPAL WARRANTS 130. The current indebtedness of a mimicipality is usually evidenced by warrants or orders, which the munici- pality has inherent power to issue through its offi- cers. Municipal orders or warrants are informal checks or drafts by ofae municipal officer upon another for the payment of a certain sum of money. ^' They do not constitute municipal securities, but are merely conveniences in municipal adminis- tration of its finances.^" These warrants are usually not ne- 2 7 Ante, § 24. Clarke v. Town of Northampton, 120 Fed. 661, 57 C. 0. A. 123 ; Parkersburg v. Brown, 106 U. S. 487, 1 Sup. Ct. 442, 27 L. Ed; 238 ; Katzenberger v. Aberdeen, 121 U. S. 172, 7 Sup. Ct. 947, 950, 30 L. Ed. 911; Debnam v. CMtty, 131 N. C. 657, 43 S. E. 3; Everett v. Independent Sctiool Dist. of Rock Kapids (C. C.) 109 Fed. 697 ; Clifton Forge v. Alleghany Bank, 92 Va! 283, 23 S. E. 284. Where a municipality issues bonds which it had no authority to issue under its charter, it cannot subsequently validate its bonds by ratification. Uncas Nat. Bank v. Superior, 115 Wis. 340, 91 N. W. 1004. 2 8 Post, § 180. Fernald v. Oilman (C. C.) 123 Fed. 797; City of Defiance, Ohio, v. Schmidt, 123 Fed. 1, 59 C. O. A. 159 ; Kondot v. Rogers Tp., 99 Fed. 202, 39 C. C. A. 462 ; Edwards v. Bates County (0. C.) 117 Fed. 526; City of Beatrice v. Edminson, 117 Fed. 427, 54 C. C. A. 601; King v. Superior, 117 Fed. 113, 54 C. C. A. 499; Glenn v. Wray, 126 N. C. 730, S6 S. E. 167; Brenham v. German- Americai\ Bank, 144 U. S. 173, 12 Sup. Ct. 559, 36 L. Ed. 390. 2 9 Clark V. City of Des Moines, 19 Iowa, 199, 87 Am. Dec. 423; Bull V. Sims, 23 N. Y. 570. 30 School Dist. Tp. v. Lombard, ,2 Dill. (U. S.) 493, Fed. Cas. No, 12,478; Dana v. City and County of San Francisco, 19 Cal. 486. § 130) MUNICIPAL WARRANTS 423 gotiable,'* and do not bear interest.^^ They are not intended to be used as currency, though they are assignable; "' but in the hands of any person the city is entitled to all equities against the original payee.'* It is expected that they will be paid out of current taxes/" and therefore they rarely exceed them in amount. They may be the basis of action against the municipality, but not until after presentation for payment and refusal.^' siHubbell v. Town of Custer City, 15 S. D. 55, 87 N. W. 520; First Nat Bank v. Gates, 66 Kan. 505, 72 Pac. 207, 97 Am. St. Rep. 383; City of Hammond y. Evans, 23 Ind. App. 501, 55 N. B. 784; Goodwin v. Town of East Hartford, 70 Conn. 18, 38 Atl. 876 ; Bards- ley V. Sternberg, 17 Wash. 243, 49 Pac. 499 ; Watson v. City of Hu- ron, 97 Fed. 449, 38 C. C. A. 264 ; Clark v. City of Des Moines, 19 Iowa, 199, 87 Am. Dec. 423. 32 City of Pekin v. Reynolds, 31 111. 529, 83 Am. Dec. 244; Soutb Park Com'rs v. Dunlevy, 91 111. 49. They may, however, draw interest after presentation, demand for payment, and refusal. Fernandez v. City of New Orleans, 42 La. Ann. 1, 7 South. 57. But see Kenyon v. City of Spokane, 17 Wash. 57, 48 Pac. 783; City of Quincy v. Warfleld, 25 111. 317, 79 Am. Dee. 330. 3 3 Grayson v. Latham, 84 Ala. 546, 4 South. 200; Clark v. Polk County, 19 Iowa, 248 ; Brown v. Town Board of School Directors of the Town of Jacobs, 77 Wis. 27, 45 N. W. 678. 3i Gilman v. Township of Gilby, 8 N. D. 627, 80 N. W. 889, 73 Am. St Rep. 791; Casey v. Pilklngton, 83 App. Div. 91, 82 N. Y. Supp. 525 ; Hubbell v. Town ,of Custer City, 15 S. D. 55, 87 N. W. 520 ; Speer v. Board of Com'rs, 88 Fed. 749, 32 C. C. A." 101; Matthis v. Inhabitants of Town of Cameron, 62 Mo. 504. A holder of city warrants has only the rights of the original pay- ee, since the rules pertaining to negotiable instruments do not apply. West Philadelphia Title & Trust Co. v. City of Olympia, 19 Wash. 150, 52 Pac. 1015. 3 5 Nashville v. Ray, 19 Wall. (U. S.) 468, 22 L. Ed. 164; Shannon V. City of Huron, 9 S. D. 356, 69 N. W. 598. ■ 3 8 Freeman v. City of Huron, 10 S. D. 368, 73 N. W. 260; Travel- ers' Ins. Co. V. City of Denver, 11 Colo. 434, 18 Pac. 556; Quaker City Nat. Bank of Philadelphia v. City of Tacoma, 27 Wash. 259, 67 Pac. 710 ; International Bank of St. Louis v. Franklijn County, 65 Mo. 105, 27 Am. Rep. 261 ; Vamer v. Inhabitants of Nobleborough, 2 Greenl. (Me.) 126, 11 Am. Dec. 48; City of Pekin v. Reynolds, 31 111. 529, 83 Am. Dec. 244. 424 DEBTS, FUNDS, EXPENSES, ETC. (Ch. 13 FUNDS 131. Municipal revenues are usually divided into funds which represent the various sums of money ap- propriated by the council for the payment of speci- fied kinds of indebtedness; e. g., a school fund, in- terest fund, street fxmd, sinking fund, and the like. The warrants of the municipality are usually drawn upon some special fund, and are to be paid out of that fund in the order in which they are presented and accepted by the dis- bursing officer.'' If the fund be exhausted, such warrant is not then payable out of other money in the municipal treas- ury,'* but may be payable out of the same fund the following year.'* Specific Funds These separate funds represent the assessment and appro- priation of annual revenues to specific objects, and are several- ly devoted to those purposes.*" The financial agents or offi- cers 'of the corporation must administer those funds in ac- cordance with the general rules of the council setting them 87 Bardsley v. Sternberg, 18 Wash. 612, 52 Pac. 251; La France Fire-Engine Co. v. Davis, 9 Wash. 600, 38 Pac. 154; Hubbell v. Town of Custer City, 15 S. D. 55, 87 N. W. £(20 ; Quaker City Nat. Bank of Philadelphia v. City of Tacoma, supra ; Northwestern Lum- ber Co. V. City of Aberdeen, 22 Wash. 404, 60 Pac. 1115; Shannon V. City of Huron, 9 S. D. 356, 69 N. W. 598 ; Benson v. Inhabitants of Carmel, 8 Greenl. (Me.) 112. 3 8 McCuUough V. Mayor, etc., of City of Brooklyn, 23 Wend. (N. X.) 458. Warrants issued by a city for street improvements, to be paid out of a special fund, cannot be collected against the city generally, though the remedy to collect from the special fund is lost. Wilson V. City of Aberdeen, 19 Wash. 89, 52 Pac. 524. 3 9 Western Town-Lot Co. v. Lane, 7 S. D. 1, 62 N. W. 982; Phillips V. Reed, 107 Iowa, 331, 76 N. W. 850. 40 People v. Wood, 71 N. Y. 371; Bates v. Porter, 74 Cal. 224, 15 Pac. 732. § 132) EIGHTS OF CREDITOES 425 apart to specific purposes.**^ They have no power to divert these funds to different objects, and may be liable for so do- ing." RIGHTS OF CREDITORS 132. Creditors may by contract obtain a vested interest in municipal funds so that the same cannot be taken from them either by municipal or legislative action. It often happens in the administration of municipal affairs that contractors doing work of improvement for the munici- pality have been promised compensation out of certain munici- pal funds ; or that a loan of money has been obtained upon the credit of some specific municipal fund; or that creditors of the municipality have been induced to refund their existing obligations at a lower rate of interest, or even to reduce the principal of the debt, upon guaranty of payment out of some specific source of municipal revenue. This stipulation may appear either in the contract or the municipal ordinance, or the statute under which the action is taken. In all such cases, unless the fund pledged is strictly governmental in its nature, so as to be incapable of being pledged,** the creditor obtains a vested interest in the fund,** which is protected by the con- *i Schultze V. Township of Manchester, 61 N. J. Law, 513, 40 Atl. 589 ; State ex rel. First Nat. Bank of York v. Cook, 43 Neb. 318, 61 N. W. 693; Boro v. Phillips County, 4 DUl. 216, Fed. Gas. No. 1,663; Priet V. Eeis, 93 Cal. 85, 28 Pac. 798. When a draft or warrant drawn by the proper officer, and in due form, is presented to a treasurer, it is no part of his duty to inquire into the legality of the consideration for which it was given. Wolf V. Oiler, 16 Pa. Co. Ct R. 235. 42 Blair v. Lantry, 21 Neb. 247, 31 N. W. 790; City of Bast St. Louis V. Flannigen, 34 111. App. 596. See Bates v. Porter, 74 Cal. 224, 15 Pac. 732; Priet v. Reis, 93 Cal. 85, 28 Pac. 798. *3 Illinois Trust & Savings Bank v. City of Arkansas City, 76 Fed. 271, 22 0. C. A. 171, 34 L. R. A. 518 ; Davis v. Mayor, etc., of City of New Tork, 14 N. Y. 506, 67 Am. Dee. 186. *i Mobile V. Watson, 116 U. S. 289, 6 Sup. Ct. 398, 29 L. Ed. 620 ; Louisiana ex rel. Southern Bank v. Pilsbury, 105 U. S. 278, 26 L. 426 DEBTS, FUNDS, EXPENSES, ETC. (Ch. 13 tract clause of the federal Constitution; and his right cannot be impaired by subsequent legislation, either by the state or the municipality.** Sinking funds have been held to be pe- culiarly within the protection of this constitutional provision, and any legislation void which tends to impair the creditor's contractual security.*' The same doctrine may be applied with equal force to any other special municipal fund which has been likewise pledged as security for municipal debt,*' though in some cases the creditor has been denied the full measure of this constitutional protection.** But a pledge of the entire municipal revenues, or of the ordinary revenues employed in performing strictly governmental functions, would be obviously void as an unwarranted surrender of sov- ereign power;*" in other words, such a contract would be void as against public policy, and therefore not protected by the federal Constitution." Ed. 1090; Wolff v. New Orleans, 103 U. S. 3-58, 26 L. Ed. 395; Good- ale V. Fennell, 27 Ohio St. 426, 22 Am. Rep. 321. *5 City of Memphis v. TJ. S. ex rel. Brown, 97 U. S. 293, 24 L. Ed. 920; SHAPLEIGH v. CITY OP SAN ANGELO, 167 U. S. 646, 17 Sup. Ct. 957, 42 L. Ed. 310, Cooley, Oas. Mun. Corp. 319. *6 Board of Liquidators of City Debts v. Municipality No. 1, 6 La. Ann. 21 ; Kelly v. City of Minneapolis, 63 Minn. 125, 65 N. W. 115, 30 L. R. A. 281. *7Von Hoffman v. Quincy, 4 Wall. (U. S.) 535, 18 L. Ed. 403; Galena v. Amy, 5 Wall. (U. S.) 705, 18 L. Ed. 560 ; Wolff v. New Orleans, 103 U. S. 358, 26 L. Ed. 395. *8 City of St. Louis v. Sheilds, 52 Mo. 351. *» Milhau V. Sharp, 27 N. Y. 611, 84 Am. Dec. 314 ; Gale v. Village of Kalamazoo, 23 Mich. 344, 9 Am. Rep. 80; Brick Presbyterian Church Corp. v. Mayor, etc., of the City of New York, 5 Cow. (N. Y.) 538 ; Rittenhouse v. Mayor, etc., of Baltimore, 25 Md. 336 ; IlUnois Trust & Savings Bank v. City of Arkansas City, 76 Fed. 271, 22 C. C. A. 171, 34 L. R. A. 518. 50 Sandusky City Bank v. Wilbor, 7 Ohio St 48i; Brewster v. Hough, 10 N. H. 138; Lynn v. Polk, 8 Lea (Tenn.) 121; Bast Sag- inaw Mfg. Co. V. City, of East Saginaw, 19 Mich. 259, 2 Am. Rep. 82 ; Bralnard v. Town of Colchester, 31 Conn. 410; Wilmington & W. R. Co. V. Reid, 64 N. 0. 226 ; Mott v. Pennsylvania Railroad Co., 30 Pa. 9, 72 Am. Dec; 664. § 133) EXPENSES 427 EXPENSES 133. Municipal expenses include all such items as are incif dented to the proper exercise of corporate functions in administering the government of the municipal- ity, and, if within the scope of the mimicipal pow- ers, are within the discretion of the governing body. The details of administration in a municipality are so varied and numerous as to render classification or special regulation impossible. They are, however, generally committed to the discretion of the municipal pouncil,°^ but in some instances to that of special officers. °^ For example, it has been held that A stenographer's fees for reporting, under the direction of the city attorney, the trial of a case against a police officer, was a proper item of municipal expense, though the city was not a party to the suit, since such matters must be left to the dis- cretion of the city attorney, and he was acting within the ap- parent scope of his authority.^^ But the discretion vested in the council will not' validate a claim for items of expenditure obviously not municipal, such as giving banquets," providing entertainment for guests,'*' buying military uniforms,'* ex- penses of delegates to a municipal convention," and the like.'* ei 1 DUl. Mun. Corp. § 94; Kendall v. Frey, 74 Wis. 26, 42 N. W. 466, 17 Am. St. Rep. 118 ; White v. Mayor and Council of Decatur, 119 Ala. 476, 23 South. 999. Ante, § 45. B2 Ante, § 25. B3 City of Chicago v. Williams, 80 111. App. 33. B*AusUn V. Coggeshall, 12 R. I. 329, 34 Am. Rep. 648; Common- wealth ex rel. v. Gingrich, 21 Pa. Super. Ct. 286. . 5 5 Black V. Common Council of City of Detroit, 119 Mich. 571, 78 N. W. 660. 6 6 Claflin V. Inhabitants of Hopkinton, 4 Gray (Mass.) 502. 57 Waters v. Bonvouloir, 172 Mass. 286, 52 N. E. 500. 5 8 City of Tyler v. L. L. Jester & Co. (Tex.) 74 S. W. 359; State ex rel. Crow v. St. Louis, 174 Mo. 125, 73 S. W. 623, 61 L. R. A. 593 ; Matter of Town of Eastehester, 53 Hun, 181, 6 N. Y. Supp. 120; 428 DEBTS, FUNDS, EXPENSES, ETC. (Ch. 13 BUDGET 134. A classified statement of annual appropriation of mu- nicipal revenues, commonly called a "budget," is required in many states, as the measure of lawful municipal expenditures during the year. The object of this budget, obviously, is to ensure an orderly, systematic, and economical administration of municipal aifairs, and the executive officers of the municipality are required to conform their operations to this budget, and limit their ex- penditures to the sum appropriated to the various departments or kinds of municipal work."' But the courts of the various states express diverse views as to the object of such statute Kingman v. City of Brockton, 153 Mass. 255, 26 N. E. 998, 11 L. R. A. 123; The liberty Bell/(C. C.) 23 Fed. 843; City of New London v. Brainard, 22 Conn. 556; Hodges v. City of Buffalo, 2 Denio (N. Y.) 110 ; Greenough v. Inhabitants of Wakefield, 127 Mass. 275. Where a city council, without authority, authorized the payment of a claim of a member for expenditures made by him in company with others on a trip to various cities investigating municipal af- fairs in pursuance of an ordinance, the city comptroller properly refused to approve a warrant drawn in payment of such claim. James v. City of Seattle, 22 Wash. 654, 62 Pac. 84, 79 Am. St. Kep. 957. But charges for labor and material furnished In the building of a city jail, services In guarding quarantined patients, publishing no- tice and printing ballots of election, feeding impounded stock, board- ing city prisoners, insurance on city buildings, services in maldng assessment rolls, postage and stationery for officers, city printing and necessary expenses of the city clerk, are held valid, though the city had exceeded the limit of its indebtedness, as such were necessarily expenses incurred in maintaining its existence. Gladwin V. Ames, 30 Wash. 608, 71 Pac. 189. 5»Spauldmg y. Arnold, 125 N. Y. 194, 26 N. E. 295; State ex rel. Barber Asphalt Pav. Co. v. City of New Orleans, 40 La. Ann. 299, 3 South. 584. The amount placed on thg budget for the annual ex- penses of a municipal corporation when collected by taxes levied therefor must be applied to the purposes specified in the budget. Parish Board of School Directors v. City of Shreveport, 47 La. Ann. 1310, 17 South. 823. See Badger v. Ciiy of New Orleans, 49 La. Ann. 804, 21 South. 870, 37 L. R. A. 540. § 135) CLAIMS 429 and the municipal power thereunder. In Illinois "' and Col- orado *^ municipalities are held to be limited in expenditure to the budget appropriations. In Connecticut "" it is held that the statute is intended for protection of the city against its officers, and that the council may incur expenditures not provided for by the budget ; and in Nebraska '* the budget limit has been held not to include money authorized to be borrowed for spe- cific purpose on sanction of the legal voters. It has also been held that unwarranted expenditures for municipal objects may be ratified by the council, and a claim therefor be thus vali- dated." CLAIMS 135. Claims against a municipality ex contractu do not be- come actionable until after due and regular pres- entation and demand for pasmient, and refusal by the proper officer. While there is lack of entire uniformity in the decisions of the various states with regard to the enforcement of con- tractual claims against a municipality, the general doctrine based upon the nature of such claims and the necessities of municipal administration is as above stated.*^ In the manage- 60 Culbertson v. City of Fulton, 127 111. 30, 18 N. E. 781. 81 Sullivan v. City of Leadville, 11 Colo. 483, 18 Pac. 736. 82 Whitney v. City of New Haven, 58 Conn. 450, 20 Atl. 666. 83 State ex rel. Fuller v. Martin, 27 Neb. 441, 43 N. W. 244. 84 Barrett v. City of Mobile, 129 Ala. 179, 30 South. 36, 87 Am. St. Rep. 54 ; Mills v. Gleason, 11 Wis. 470, 78 Am. Dec. 721 ; City of St. Louis, to Use of Creamer, v. Clemens, 52 Mo. 133 ; Burrill v. Boston, 2 Cliff. 590, Fed. Cas. No. 2,198; Kunkle v. Town v. Franklin, Wright County, 13 Minn. 127 (Gil. 119), 97 Am. Dee. 226; Bolles v. Brimfield, 120 U. S. 759, 7 Sup. Ct. 736, 30 L. Ed. 786. But where it is in excess ^of the constitutional limitation it can- not be ratified. Balch v. Beach, 119 Wis. 77, 95 N. W. 132. See, also, McGillivray v. Joint School District, 112 Wis. 354, 88 N. W. 310, 58 L. R. A. 100, 88 Am. St Rep. 969. esBurdick v. Richmond, 16 R. I. 502, 17 Atl. 917; Trustees v. White, 48 Ohio St. 577, 29 N. B. 47; Jones v. City of Albany, 62 430 DEBTS, FUNDS, EXPENSES, ETC. (Ch. 13 rrtent of municipal affairs some officer is intrusted with the duty of auditing claims; and when the claims are approved, or an accord has been reached, warrants are drawn for pay- ment upon the municipal treasury. After such warrant has been presented and payment refused, the claimant has a right of action thereon ; *« but the warrant is not conclusive upon either party.*^ The municipality may defend against the war- rant upon the ground that the claim was ultra vires, fraudu- lent, or unfounded;" and the claimant, at any time before assigning or receiving payment of the warrant, may waive this acknowledgment of indebtedness and sue the municipality upon his original claim."" After payment of the warrant nei- ther party can have any action upon the subject-matter, ex- cept upon grounds of equity. which will warrant the unsettling of a liquidated claim.'" The creditor having a warrant upon a special fund may demand payment out of the same, and if payment is refused he may enforce it by mandamus.''^ Hun, 353, 17 N. T. Supp. 232; Bass Foundry & Machine Works v. Board of Com'rs of Parke County, 115 Ind. 234, 17 N. E. 593. 66 City of Pekin v. Reynolds, 31 111. 529, 28 Am. Dec. 244; Varner V. Inhabitants of Nobleborough, 2 Me. (2 Greenl.) 126, 11 Am. Dec. 48 ; Saunders v. City of Fitzgerald, 113 Ga. 619, 38 S. E. 978. 6 7 ALLEN V. INTEND ANT AND COUNCILMEN OF CITY OF LA FAYETTE, 89 Ala. 641, 8 South. 30, 9 D. R. A. 497, Oooley, Cas. Mun. Corp. 303 ; Thomas v. Richmond, 12 Wall. (V. S.) 349, 20 L. Ed. 453 ; Taft v. Town of Pittsford, 28 Vt. 286 ; Varner v. Inhabitants of Nobleborough, supra. 6 8 Trowbridge v. Schmidt, 82 Miss. 475, 34 South. 84; Nashville V. Ray, 19 Wall. (V. S.) 468; 22 L. Ed. 164 ; Cheeney v. Inhabitants of Town of Brookfield, 60 Mo. 53 ; Salamanca Tp. v. Jasper County, Mo., Bank, 22 Kan. 696 ; First Nat. Bank of Balston Spa v. Board of Supervisors, 106 N. Y. 488, 13 N. E. 439 ; Clark v. City of Des Moines, 19 Iowa, 199, 87 Am. Dec. 423. 6 Crawford County v. Wilson, 7 Ark. 214; Dairy mple v. Town of Whitingham, 26 Vt. 347; Dyer v. Covington Tp., 19 Pa. 200; Varner V. Inhabitants of Nobleborough, supra ; ALLEN v. INTENDANT AND COUNCILMEN OF LA FAYETTE, supra. 70 Sweet V. Carver County Com'rs, 16 Minn. 108 (Gil. 96) ; Craw- ford County V. Wilson, supra; Webster v. Douglas County, 102 Wis. 181, 77 N. W. 885, 72 Am. St. Rep. 870. 71 Ray V. Wilson, 29 Fla. 342, 10 South. 613, 14 L. R. A. 773 ; State § 13'6) APPROPEIATION 431 APPROPRIATION 136. Appropriation, being the authoritative application by the council of municipal revenues to a distinct ob- ject or definite purpose, fixes the rule of action gov- erning all officers in the handling and disbursement of the municipal revenues. The classification of hiunicipal funds with reference to the various departments of municipal business, being essentially for orderly administration, the legislative act of appropriation operates to devote the municipal funds to the specific objects, and to require- of all "officers handling municipal funds a strict compliance with the municipal ordinance.'^ No discretion is left to the financial officer in disbursing the municipal reve- ex rel. Moore v. Gandy, 12 Neb. 232, 11 N. W. 296 ; People v. Wen- dell, 71 N. Y. 171 ; Bush v. Geisy, 16 Or. 355, 19 Pac. 123 ; German- American Sav. Bank of Burlington v. City of Spokane, 17 Wash. 315, 49 Pac. 542, 38 L. R. A. 259; Wilson v. City of Aberdeen, 19 Wash. 89, 52 Pac. 524; Northwestern Lumber Co. v. City of Aber- deen, 22 Wash. 404, 60 Pac. 1115 (in which it was held that a city is liable in damages to a holder of its warrants, payable out of a spe- cial assessment to be collected by the city, for the payment of war- rants of subsequent issue and number before those of such holder) ; City of Greencastle v. Allen, 43 Ind. 347; Voorhies v. Mayor, etc., of Houston, 70 Tex. 331, 7' S. W. 679. Where warrants are drawn against a city with an express pro- vision that they shall be payable from a special fund to be raised by l,evy on certain lands, the holder must resort to mandamus to compel such levy, and cannot compel the city to pay the same out of the general funds, unless the levy has been made, and the money to pay the warrants is in the city treasury. Turner v. Guthrie, 13 Okl. 26, 73 Pac. 283. But the holder of warrants need not resort to mandamus to com- pel the treasurer to act, an action at law against the city being maintainable. First Nat. Bank of Northampton, Mass., v. Arthur, 10 Colo. App. 283, 50 Pac. 738; Eaton Waterworks Co. v. Town of Raton, 9 N. M. 70, 49 Pac. 898 ; Goldsmith v. City of Baker City, 31 Or. 249, 49 Pac. 973; Travelers' Ins. Co. v. City of Denver, 11 Colo. 434, 18 Pac. 556. 72 Baker v. City of Seattle, 2 Wash. 576, 27 Pac. 462. 432 DEBTS, FUNDS, EXPENSES, ETC. (Ch. 13 nues ; "" the funds appropriated to a specific object must be applied solely to it.'* The duties of the disbursing officer are purely ministerial, and his only safety is in obedience to the appropriation.' ° It has been held competent for the council or for the legislature to amend the ordinance of appropriation and divert the funds to other municipal objects when this does not impair a contract obligation." Whatever be the statute or ordinance of appropriation, the disbursing officer must act , in obedience to it." 13 First Nat. Bank of Northampton, Mass., v. Arthur, 10 Colo. App. 283, 50 Pac. 738; State ex rel. First Nat. Bank of York v. Cook, 43 Neb. 318, 61 N. W. 693 ; Flick v. Harpham, 13 Pa. Co. Ct. R. 648 ; City of Bonham v. Taylor, 81 Tex. 59, 16 S. W. 555 ; Wilson v. Neal (C. C.) 23 Fed. 129. 74 Affeld T. City of Detroit, 112 Mich. 560, 71 N. W. 151; Priet v. Reis, 93 Cal. 85, 28 Pac. 798. 7 5 Nolan County v. Simpson, 74 Tex. 218, 11 S. W. 1098; State v. Coming, 44 Kan. 442, 24 Pac. 966. 78 Creighton v. Board of Sup'rs of City and County of San Fran- cisco, 42 Cal. 446; Crittenden County Court v. Shanks, 88 Ky. 475, 11 S. W. 468 ; Board of Sup'rs of Sangamon County v. City of Spring- field, 63 111. 66; Davock v. Moore, 105 Mich. 120, 63 N. W. 424, 28 L. R. A. 783. "City of East St. Louis v. Flannigen, 34 111. App. 596; Dorsey County V. Whitehead, 47 Ark. 205, 1 S. W. 97. Ch. 14) TAXATION 433 CHAPTER XIV TAXATION 137. Source of Power. 138. Legislative Control. 139-141. Public Purpose Only. 142. Apportionment of Taxes. 143. Subjects of Taxation. 144. State May Impose. 145. Limitation of Express Power. 146. Implied Power. 147. License Tax. 148. Exercise of Power. 149. A.ssessment and Collection, 150. Taxation for Creditors. SOURCE OF POWER 137. Taxation is an attribiute of sovereignty. The power is not an essential function of a municipal corpora- tion, but may be delegated to it by the state, either expressly or by necessary implication. Government implies expenditure of money. Expenditures demand revenue. Revenue requires taxation. Taxation is inherent in the state, as an essential attribute of sovereignty.^ It is the method whereby those receiving the protection of gov- errunent are compelled to contribute to its support. It is pri- marily a legislative function, and all taxation is based upon legislative authority ; ^ but the Legislature may delegate this power to local subdivisions of the state as governmental agen- 1 State V. Bristol, 109 Tenn. 315, 70 S. W. 1031 ; McCulloch v. Maryland, 4 Wheat. (U. S.) 316, 4 L. Ed. 579 ; Providence Bank t. Billings, 4 Pet. (U. S.) 514, 7 L. Ed. 939. 2 The only warrant for the imposition of a tax or burden upon the citizen or his property without his consent must be found in some positive law, and it cannot be enforced unless imposed in the man- COOL.MUN.COBP. — 28 434 TAXATION (Ch. 14 cies,* and thus empower them to perform this sovereign func- tion. Few, if any, American municipalities exist without this power, but it is not inherent in a municipality as an essential attribute of incorporatiori4r The state might incorporate a ner authorized by statute. Queens County Water Co. v. Monroe, 83 App. Div. 105, 82 N. Y. Supp. 610. The power of taxation is purely legislative, and the courts can- not inquire into the necessity of a tax levy made by a municipality within the limits prescribed by the Constitution. Mayfield Woolen Mills V. Mayfield, 111 Ky. 172, 61 S. W. 43, 22 Ky. Law Rep. 1676. The legislative power is supreme in the selection of objects for taxation, determining the amount of taxes to be levied thereon and the purposes thereof, subject to the constitutional limitation that taxes can be imposed only for public purposes, and that taxation must be uniform. State ex rel. Ellis v. Thorne, 112 Wis. 81, 87 N. W. 797, 55 L. E. A. 956. See Cooley, Const. Lim. (6th Ed.) 587. 3 Smith V. Howell, 60 N. J. Law, 384, 38 Atl. 180 ; Pioneer Iron Co. V. City of Negaunee, 116 Mich. 430, 74 N. W. 700; Carter v. Wade, 59 N. J. Law, 119, 35 Atl. 649 ; Grunewald v. Cedar Rapids, 118 Iowa, 222, 91 N. W. 1059 ; STATE ex rel. HOWE v. CITT OF DES MOINES, 103 Iowa, 76, 72 N. W. 639, 39 L. E. A. 285, 64 Am. St. Eep. 157, Cooley, Cas. Mun. Corp. 325; Edgerton v. Goldsboro Water Co., 126 N. C. 93, 35 S. E. 243, 48 L. E. A. 444 ; Wells v. City of Savannah, 107 Ga. 1, 32 S. E. 669. A state, having power to tax property for state purposes, may con- fer on one of its municipalities the power to tax the same property for local purposes. Henderson Bridge Co. v. Henderson, 173 U. S. 592, 19 Sup. Ct. 553, 43 L. Ed. 823 ; Hope v. Deaderiek, 8 Humph. (Tenn.) 1, 47 Am. Dec. 597; Laramie County v. Albany County, 92 U. S. 307, 23 L. Ed. 552 ; Eogers v. Burlington, 3 Wall. (U. S.) 663, 18 L. Ed. 79 ; Langhorne v. Eobinson, 20 Grat. (Va.) 661 ; Stetson v. Kempton, 13 Mass. 272, 7 Am. Dec; 145; Daily v. Swope, 47 Miss. 367; Whiting v. Town of West Point, 88 Va. 905, 14 S. E. 698, 15 L. R. A. 860, 29 Am. St. Rep. 750, note. But the power of taxation may not be delegated to any special committee. Keeler v. Westgate, 10 Pa. Dist. R. 240. * Cooley, Tas'n (2d Ed.) 464 ; Town of Drummer v. Cox, 165 111. 648, 46 N. E. 716 ; Minot v. Inhabitants of West Roxbury, 112 Mass. 1, 17 Am. Eep. 52; State ex rel. Aull v. Shortridge, 56 Mo. 126; State ex rel. Atkins v. Town of Maysville, 12 S. C. 76 ; Lott v. Ross, 38 Ala. 156; Vance v. City of Little Eock, 30 Ark. 435; Green v. Ward, 82 Va. 324 ; Clark v. City of Davenport, 14 Iowa, 494 ; Taylor V. Donner, 31 Cal. 480 ; Commissioners of Town of Asheville v. Means, 29 N. C. 406 ; Burnes v. Mayor, etc., of Atchison, 2 Kan. 454 ; In re Second Ave. M. E. Church, 66 N. Y. 395; City of Fairfield v. Rat- § 138) LEGISLATIVE CONTROL 435 municipality, and supply it with revenue out of its own treas- ury to meet the expenditures necessary for the performance of its municipal functions. But the rule is otherwise in America, and the almost uniyecssi ^stom is to confer upon a municipal- ity the power of taxation. This may b6 granted in express terms, or it may be implied as necessary for the exercise of the powers expressly granted." Thus, i^ a municipality is ex- pressly authorized to borrow money, the power to levy taxes to raise revenue to meet the obligation is necessarily implied.^ The exercise of this power by municipalities in America is in strict accordance with the Anglo-Saxon instinct of home rule, and the genius of our free institutions. LEGISLATIVE CONTROL 138. The power of municipal taxation is subject to the sov- ereign will, and may be granted, enlarged, abridg- ed, or revoked v^hen and as the Legislature shall deem best. Since taxation is a sovereign power, a municipality, being a dependent and derivative body, cannot hold such power" in perpetuity.'' It is entirely subject to the legislative control. The Legislature, at the creation of the corporation, may grant cliff, 20 Iowa, 396 ; Henderson v. Mayor, etc., of Baltimore, to Use of Eschbach, 8 Md. 352. But see United States ex rel. Ranger v. New Orleans, 98 U. S. 381, 25 L. Ed. 225. 5 State V. Bristol, 109 Tenn. 315, 70 S. W. 1031 ; Howell v. City of Buffalo, 15 N. Y. 512; Mays v. City of Cincinnati, 1 Ohio St. 268; City of Philadelphia v. Planigen, 47 Pa. 21 ; Commissioners of Town of Asheville v. Means, 29 N. 0. 406 ; Ham v. Sawyer, 38 Me. 37. 6 Slocomb V. City of Fayetteville, 125 N. C. 362, 34 S. E. 436; Ralls County Court v. United States, 105 U. S. 733, 26 L. Ed. 1220 ; United States V. New Orleans, 98 U. S. 381, 25 L. Ed. 225 ; Wright v. City of Chicago, 20 111. 252 ; Mayor, etc., of City of Annapolis v. Harwood, 32 Md. 471, 3 Am. Rep. 161. 7 City of New Orleans v. New Orleans Waterworks Co., 142 U. S. 79, 12 Sup. Ct. 142, 35 L. Ed. 943 ; Williamson v. New Jersey, 130 U. S. 189, 9 Sup. Ct. 453, 32 L. Ed. 915. 436 TAXATION (Ch. 14 or withhold this power, as to it shall seem best. It may give a small or large measure of the power; and after the orig- inal grant it may enlarge, curtail, or wholly revoke it, subject only to the vested rights of creditors.' Thus the Legislature ' cannot so lihiit the taxing power as to preclude it from raising funds necessary to satisfy pre- existing legal indebtedness." On the other hand, it cannot compel the taxation of city property for local purposes without the consent of the freemen of the city.^" But, generally speaking, the municipality is the agent only. The state is the principal; and it is for the principal, not for the agent, to determine the nature, number, and extent of the powers to be exercised by the agent.^* 8 Broughton v. Pensacola, 92 U. S. 266, 23 L. Ed. 896 ; Meriweth- er V. Garrett, 102 U. S. 472, 26 L. Ed. 197; AsplnwaU v. Daviess County, 22 How. (U. S.) 364, 16 L. Ed. 296 ; Von Hoffman v. Quincy, 4 Wall. (U. S.) 535, 18 L. Ed. 403; United States ex rel. Wolff v. New Orleans, 103 U. S. 358, 26 L. Ed. 395; Commonwealtli ex rel. Claghorn v. CuUen, 13 Pa. 133, 53 Am. Dec. 450 ; State v. Kolsem, 130 Ind. 434, 29 N. E. 595, 14 L. K. A. 566 ; Inhabitants of North Yar- mouth V. Skillings, 45 Me. 133, 71 Am. Dec. 530. 9 Hammond v. Place, 116 Mich. 628, 74 N. W. 1002, 72 Am. St. Rep. 543. i'» Blades v. Board of Water Com'rs of City of Detroit, 122 Mich. 366, 81 N. W. 271. 11 City of St Paul v. Laidler, 2 Minn. 190 (Gil. 159), 72 Am. Dec. 89 ; Spauldlng v. City of Lowell, 23 Pick. (Mass.) 71 ; Fitch v. Pinck- ard. 4 Scam. (111.) 78 ; State v. Bristol, 109 Tenn. 315, 20 S. W. 1031. .§§ 139-141) PUBLIC PUKPOSB ONLT 437 PUBLIC PURPOSE ONLY 139. Taxes may be levied by a municipality for public pur- poses only. 140. Whether the purpose is public or private is for ulti- mate decision by the courts. 141. A general concurrence of judicial opinion includes among public purposes of municipalities: (1) The administration of justice. (2) The preservation of peace and order. (3) The protection of property. (4) The facilitation of locomotion and transportation. (5) The preservation of the public health. (6) The support of public education. (7) The promotion of public comfort. (8) The care of the helpless. (9) The reward of civic fidelity and heroism. The Legislature is the exclusive judge as to the rate of tax- ation to be imposed upon the state by itself ; ^^ and such measure of taxing power as it possesses it may confer upon a municipality.^' The only limit, therefore, as to the amount of municipal taxes to be raised for municipal purposes must be found in the civic conscience and sense of responsibility of the governing body of the municipality. The citizens have 12 McCuUoch T. Maryland, 4 Wheat. (U. S.) 316, 428-430, 4 L. Ed. 579 ; Weston v. Charleston, 2 Pet. (U. S.) 449, 7 L. Ed. 481 ; Provi- dence Bank v. BUlings, 4 Pet. (U. S.) 514, 561, 7 L. Ed. 939 ; West- em Union Telegraph Co. v. Mayer, 28 Ohio St. 521; Sharpless v. Mayor, etc., of City of Philadelphia, 21 Pa. 147, 59 Am. Dec. 759; Herrick v. Town of Randolph, 13 Vt. 525 ; People v. Mayor, etc., of City of Brooklyn, 4 N. Y. 419, 55 Am. Dec. 266; Wingate v. Sluder, 51 N. C. 552. 13 Baldwin v. City Council of Montgomery, 53 Ala. 437 ; Bradley v. McAtee, 7 Bush (Ky.) 667, 3 Am. Rep. 309; Harrison v. Mayor, etc., of City of Vicksburg, 3 Smedes & M. (Miss.) 581, 41 Am. Dec. 633 ; Oty of Logansport v. Seybold, 59 Ind. 225. 438 TAXATION (Ch. 14 entrusted the governing bodies with this power, and they may exercise it to the full legislative limit, provided, always, that they employ it only for public purposes.^* If the power is perverted to private purposes, it is no longer taxation; it is extortion.!^ And it matters not whether the malversation is in small or in large sums ; it is an abuse of sovereign power, amounting to robbery under the forms of law. The touch- stone of all taxation, municipal and state, in our country, is not, then, the rate of the levy, but the object of the appro- priation.^" So long as the public is to be the beneficiary, it is lawful taxation ; but when it is perverted to personal uses it is lawless confiscation ; and this is true whether it be done open- ly, and in defiance of the public right (which is rare), or se- 14 United States v. Capdevielle, 118 Fed. 809, 55 C. C. A. 421; Baltimore & O. S. W. K. Co. v. People, 200 111. 623, 66 N. E. 246; MANNING V. CITY OP DEVILS LAKE, 13 N. D. 47, 99 N. W. 51, 65 L. K. A. 187, 112 Am. St. Rep. 652, Cooley, Cas. Mun. Corp. 332 ; Elting V. Hickman, 172 Mo. 237, 72 S. W. 700 ; Wisconsin Industrial School for Girls v. Clark County, 103 Wis. 651, 79 N. W. 422; Citi- zens' Savings & Loan Ass'n v. Topeka, 20 Wall. (U. S.) 655, 22 L. Ed. 455; Wilkinson v. Cheatham, 43 Ga. 258; Brewer Brick Co. v. In- habitants of Brewer, 62 Me. 62, 16 Am. Eep. 395 ; Curtis' Adm'r t. Whipple, 24 Wis. 350, 1 Am. Rep, 187 ; People v. Batchellor, 53 N. T. 128, 13 Am. Rep. 480 ; City of Lowell v. City of Boston, 111 Mass. 454, 15 Am. Eep. 39 ; People ex rel. Doyle v. Austin, 47 Cal. 353. The power of the legislature to levy or to authorize the levy of a tax, and to create or to authorize the creation of a public debt to be paid by taxation, is limited to its exercise -for a public purpose. Dodge V. Mission Tp., Shawnee County, Kan., 107 Fed. 827, 46 C. C. A. 661, 54 L. R. A. 242 ; Sutherland-Innes Co. v. Village of Evart, 86 Fed. 597, 30 C. C. A. 305. See Phoenix Assur. Co. of London v. Fire Dept. of City of Mont- gomery, 117 Ala. 631, 23 South. 843, 42 L. R. A. 468. 15 In re Washington Ave., 69 Pa. 352, 8 Am. Rep. 255; Allen v. In- habitants of Jay, 60 Me. 124, 11 Am. Rep. 185; Morford v. Unger, 8 Iowa, 82 ; Talbot v. Hudson, 16 Gray (Mass.) 417 ; Weismer v. Vil- lage of Douglas 64 N. T. 91, 21 Am. Rep. 586; Sharpless v. May- or, etc., of City of Philadelphia, 21 Pa. 147, 59 Am. Dec. 759. 18 Hitchcock V. City of St. Louis, 49 Mo. 484; Reddall v. Bryan, 14 Md. 444, 74 Am. Dec. 550; In re Central Park Com'rs, G3 Barb. (N. 1.) 282; Burden v. Stein, 27 Ala. 104, 62 Am. Dec. 758; State ex rel. Griffith v. Osawkee Tp., 14 Kan. 418, 19 Am. Rep. 99. §§ 139-141) PUBLIC PURPOSE ONLY 439 cretly, under plausible pretext of public benefit (which has not been uncommon in American municipalities). Judicial Question The question whether the purpose for which a tax is levied is public or private is to be determined ultimately by the courts. This wholesome rule of law is the sure safeguard of citizens against lawless oppression. If the Legislature or common council having unlimited power to levy taxes for public pur- poses, had also unlimited power to determine what was a public use, there would be no protection for private property in state or city.^' Taxes could be levied and appropriated ad libitum, and the citizens might be at the mercy of faithless rep- resentatives. The facts of any case being conceded or prov- en, it is then for the courts to declare the law ; and, while the common council of a municipality are empowered in the first instance to express their view of the nature of the tax, their opinion is not conclusive, but may be subjected to the ulti- mate test of judicial determination.^' If it be doubtful whether the purpose is public or private, if the courts cannot plainly see that the appropriation is a perversion of public power to personal uses, they will resolve the doubt in favor " Citizens' Savings & Loan Ass'n v. Topeka, 20 Wall. (U. S.) 655, 22 L. Ed. 455 ; Tyler v. Beacher, 44 Vt. 651, 8 Am. Rep. 398 ; People V. Flagg, 46 N. Y. 401 ; Allen v. Inhabitants of Jay, 60 Me. 124, 11 Am. Rep. 185; Curtis' Adm'r t. Whipple, 24 Wis. 350, 1 Am. Rep. 187; Crowell v. Hopkinton, 45 N. H. 9; Morford v. Unger, 8 Iowa, 82; Sharpless v. Mayor, etc., of City of Philadelphia, supra. 18 Ryerson v. Utley, 16 Mich. 269; Booth v. Town of Woodbury, 32 Conn. 118; Weismer v. Village of Douglas, 64 N. Y. 91, 21 Am. Rep. 586 ; Nichols v. City of Bridgeport, 23 Conn. 189, 60 Am. Dec. 6.36; Grim v. Weissenberg School Dist, 57 Pa. 433, 98 Am. Dec. 237 ; Yale University v. Town of New Haven, 71 Conn. 316, 42 Atl. 87, 43 L. R. A. 490. The decision of the question whether a tax or a public debt is for a public or private purpose is not legislative, but a judicial func- tion. A Legislature cannot make a private purpose a public purpose, or draw to itself or create the power to authorize a tax or a debt for such a purpose. Dodge v. Mission Tp., Shawnee County, Kan., 107 Fed. 827, 46 C. C. A. 661, 54 L. R. A. 242. 440 TAXATION (Ch. 14 of the legislative power, and sustain the facts.*' But if it is obvious that the taxation is intended not for public, but for private, use, no sense of due respect for the co-ordinate branch of government will deter them from declaring such legisla- tion unconstitiitional, and such taxation null and void.^" It has accordingly been held that public moneys in a town treas- ury cannot be distributed among "the inhabitants of the town according to families" ; "* also that the credit of a town can- not be loaned to a manufacturing firm to induce the location of a. manufacturing plant in the town; " also that a tax on a foreign insurance company for the benefit of disabled firemen was void.^' On the same principle the proposed issuance of $20,000,000 worth of bonds by the city of Boston to raise money to loan to lot owners for the purpose of rebuilding in the burnt dis- 19 Brodhead v. City of Milwaukee, 19 Wis. 624, 88 Am. Dec. 711; Litchfield v. Vernon, 41 N. Y. 123 ; Tyson v. School Directors of Hal- ifax Tp., 51 Pa. 9 ; Ferguson v. Landram, 5 Bush (Ky.) 230, 96 Am. Dec. 350 ; Freeland v. Hastings, 10 Allen (Mass.) 570. 20 Dodge V. Mission Tp., Shawnee County, Kan., supra ; Sharpless- V. Mayor, etc., of City of Philadelphia, 21 Pa. 147, 59 Am. Dec. 759 ; Hanson v. Vernon, 27 Iowa, 28, 1 Am. Rep. 215; Feldman v. City Council of Charleston, 23 S. C. 57, 55 Am. Rep. 6 ; Glasgow v. Rowse, 43 Mo. 479; Weismer v. Village of Douglas, 64 N. T. 91, 21 Am. Rep. 586 ; People ex rel. Doyle v. Austin, 47 Cal. 360 ; Citizens* Savings & Loan Ass'n v. Topeka, 20 Wall. (U. S.) 655, 22 L. Ed. 455. 21 Hooper V. Emery, 14 Me. 379. 22 City of Parkersburg v. Brown, 106 U. S. 487, 1 Sup. Ct 442, 27 L. Ed. 238 ; Osborne v. Adams County, 109 U. S. 1, 3 Sup. Ct 150, 27 L. Ed. 835 ; Cole v. La Grange, 113 U. S. 1, 5 Sup. Ct 416, 28 L. Ed. 896; Allen v. Inhabitants of Jay, 60 Me. 124, 11 Am. Rep. 185; Coates V. Campbell, 37 Minn. 498, 35 N. W. 366 ; Mather v. City of Ottawa, 114 111. 659, 3 N. E. 216 ; Attorney General v. City of Eau Claire, 37 Wis. 400. as Philadelphia Ass'n for Relief of Disabled Firemen v. Wood, 39 Pa. 73. But an act requiring insurance companies to pay an annual fee to the fire department of Montgomery to enable it to reward superior skill and exertion in its members and provide for sick or disabled members or their families was held not unconstitutional as impos- ing ft tax for private purposes, even though the fire department be the direct recipient of it. Phoenix Assur. Co. of London v. Fii'e :§§ 139-141) PUBLIC PURPOSE ONLY 441 trie/ in the city after the great fire of 1872 was declared to be null and void.^* The same ruling had been previously •made upon a similar act of the legislature of South Carolina in regard to the city of Charleston after the fire of 1866.^" And an act providing for a tax to defray the expenses incur- red in defending unsuccessful prosecutions against city officers for official misconduct was held invalid, as being an attempted •exercise of the police power for a private purpose.^* And so an act providing for the appropriation of a sum for the treatment of habitual drunkards in private institutions at the •expense of the county was held unconstitutional, as being the imposition of a tax for private purposes.^J What Purposes are Public The question of what is a public and what a private purpose lias been repeatedly before the Supreme Courts of the various states in divers forms, and there is apparent inconsistency in the decisions. This has resulted in some states from failure •of the Constitution to forbid the Legislature authorizing mu- nicipalities to loan credit to and exempt from taxation indus- trial enterprises of various kinds. But where there is express •constitutional provision declaring and enforcing the rule of uniform and equal taxation, public purposes only have been j;enerally, if not universally, recognized and sustained as the basis of the power ; and in declarii^ what are public purposes the courts have not been inclined to confine their vision to a narrow view, but have generally adopted and followed the opinion of Judge Black in the celebrated case of Sharpless v. City of Philadelphia." Dept. of City of Montgomery, 117 Ala. 631, 23 South. 843, 42 I/. H. A. 468. 2* Lowell V. City of Boston, 111 Mass. 463, 15 Am. Rep. 39. 2sFeldman v. City Council of Charleston, 23 S. C. 57, 55 Am. Rep. 6. 2 6 In re Jensen, 44 App. Div. 509, 60 N. Y. Supp. 933. 2 7 state ex rel. Garrett v. Froehlich, 118 Wis. 129, 94 N. W. 50, 61 ,L. R. A. 345, 99 Am. St. Rep. 985. 28 21 Pa. 147, 59 Am. Dec. 759. 442 TAXATION (Ch. 14 The substance of this decision is thus felicitously stated by an author of repute :^° "Taxes may be imposed for roads of all kinds, canals, and bridges, that there may be facilities for transportation of freight and for travel; for public schools or colleges, that the people may be educated ; for public libra- ries, that their means of improvement may be increased ; for the poor, the dumb, the blind, the insane, lest they suffer from want ; for the police of the state, in regulations for the pres- ervation of health or the detection of crime ; for courts of law, that individual rights may be protected and enforced, and that crime, when detected, may receive its fitting punishment; for the preservation of peace and the protection of the coun- try from foreign enemies; to aid, encourage, and stimulate commerce, domestic and foreign, 'by the establishment of mints, postal system, and maintaining navies to keep open the highway of nations ; to encourage citizens in the defense of their country by suitable rewards and mementos for past serv- ices in times of war, or by bounties for enlistment for future services ; and for the promotion of the arts and sciences. For all these matters taxes may be imposed. The purpose is pub- lic. The object is governmental. The money raised and property purchased is held by the agents of the state for the state. The object is so to regulate the state that all its citizens may enjoy their lives, liberty, and property, and pursue their happiness according to the dictates of their own reason." In many cases taxation has been upheld which would result in private benefit because the purpose of the taxation was public, and in others taxation which would confer public bene- fit has been annulled because the obvious purpose of the levy was private. The rule governing the courts in all these cases seems to be that incidental benefits are not to decide the fate of a tax levy, but the obvious purpose of the taxation is to form the basis of the decision.^' 2» Burroughs, Tax'n, § 25. so Allen V. Inhabitants of Jay, 60 Me. 124, 11 Am. Rep. 185; Weeks V. City of Milwaukee, 10 Wis. 242 ; Citizens' Savings & Loan Ass'n § 142) APPOETIONMENT OF TAXES 443 APPORTIONMENT OF TAXES 142. The apportionment of the levy is an essential feature in the sovereign attribute of taxation, and may be exercised by the municipality as well as by the state. Taxation is a burden to be borne for benefits conferred. '"■ The general benefit accruing to citizens from good government calls for contributions from all in proportion to their ability to pay. This is usually determined by the value of their prop- erty which receives the protection of government. Special benefits, however, conferred by the state, upon particular lo- calities at extraordinary expense, ought not to be paid for by all the citizens of the state, but the expense thereof should in V. Topeka, 20 Wall. (U. S.) 655, 22 L. Ed. 455 ; Booth v. Town of Woodbury, 32 Conn. 118; Mills v. Charleton, 29 Wis. 411, 9 Am. Rep. 578. Tax for construction of subway held valid, Prince v. Crocker, 166 Mass. 347, 44 N. E. 446, 32 L. R. A. 610; support of poor, Louisville & N. E. Co. v. Pendleton County, 96 Ky. 491, 29 S. W. 324 ; Elizabethtown Water Co. v. Wade, 59 N. J. Law, 78, 35 Atl. 4; Maydwell v. Louisville, 116 Ky. 885, 76 S. W. 1091, 25 Ky. Law Rep. 1062, 63 L. E. A. 655, 105 Am. St. Rep. 245. A tax imposed for the purpose of aiding an exposition was held constitutional, as being for the promotion of the public welfare. State ex rel. Douglas County v. Cornell, 53 Neb. 556, 74 N. W. 59, 39 L. R. A. 513, 68 Am. St. Rep. 629. But see Hayes v. Douglas County, 92 Wis. 429, 65 N. W. 482, 51 L. R. A. 213, 53 Am. St, Rep. 926. In Missouri, an act imposed a collateral succession tax to create a fund for maintaining free scholarships in the university, dis- tributed throughout the state on competitive examination to appli- cants without means. It was held to be for purely private purposes, and void. State ex rel. Garth v. Switzler, 143 Mo. 287, 45 S. W. 245, 40 L. R, A. 280, 65 Am. St. Rep. 653; Same v. Rassieur, Id. And so an act providing that the manufacturers of patent medicine should pay a license, which should he turned into a fund for main- taining free scholarships ' in the State University for .students. C. F. Simmons Medicine Co. v. Ziegenhein, 145 Mo. 368, 47 S. W. 10. 81 Montesquieu, Spirit of Laws, b. 12, c. 30; Marshall, C. J., in Providence Bank v. Billings, 4 Pet. (U. S.) 561, 7 L. Ed. 939 ; Mills, Pol. Econ. 370-372 ; 2 Bouv. Law Diet. tit. "Taxes." 4:44 TAXATION (Ch. 14 justice fall upon those who receive the benefits.'* Munici- palities, therefore, which receive special grants of power, en- abling them to obtain particular advantages over the unincor- porated portions of the state, are properly taxed with the ex- traordinary expense of conferring these benefits.** Taxation and Apportiokment Inseparable The power of taxing and the power of apportioning taxa- tion are inseparable; the former, indeed, includes the latter,, and the state may either itself make the apportionment of ex- traordinary expense for local benefit, or it may confer the power upon the public corporation of the locality.** The lat- ter method is commonly pursued, and thus municipalities are authorized to decide in what measure they will exercise the powers conferred upon them, and what amount of expense within legislative limits they will incur therefor.*' All gen- eral improvements in a municipality are paid for out of the municipal treasury;*' but in the municipality, just as in the state, inequalities of benefit in the improvements of divers lo- calities call for unequal burdens of taxation. Those who re- 82 Ruggles, J., in People v. Mayor, etc., of City of Brooklyn, 4- N. Y. 419, 428, 55 Am. Dec. 266; City of Bridgeport v. New York & N. H. R. Co., 36 Conn. 255, 4 Am. Rep. 63; Dorgan v. City of Boston, 12 Allen (Mass.) 223; Hammett v. City of Philadelphia, 65 Pa. 148, 3 Am. Rep. 615 ; Neenan v. Smith, 50 Mo. 525. S3 Gordon v. Comes, 47 N. Y. 608; City of Philadelphia v. Field, 58 Pa. 320 ; Shaw v. Dennis, 5 Oilman (111.) 405 ; Thomas v. Leland, 24 Wend. (N. Y.) 65; Brewster v. City of Syracuse, 19 N. Y. 116. 8* Hope V. Deaderick, 8 Humph. (Tenn.) 1, 47 Am. Dec. 597; Speer- V. Mayor, etc., of City of Athens, 85 Ga. 49, 11 S. E. 802, 9 L. R. A. 402 ; PEOPL.E ex rel. LE ROY v. HURLBUT, 24 Mich. 44, 9 Am. Rep. 103, Cooley, Cas. Mun. Corp. 36; Battle v. Corporation of Mobile, 9 Ala. 234, 44 Am. Dec. 438 ; Harrison v. Mayor, etc., of City of Vicksburg, 3 Smedes & M. (Miss.) 581, 41 Am. Dec. 633; City of Bvansville v. State ex rel. Blend, 118 Ind. 426, 21 N. E. 267, 4 D. R. A. 93. 36 People V. Flagg, 46 N. Y. 401 ; Hammett v. City of Philadelphia, 65 Pa. 146, 3 Am. Rep. 615; Taylor v. Chandler, 9 Heisk. (Tenn.) 349, 24 Am. Rep. 308; City of Ottawa v. Spencer, 40 lU. 211: . Kan- sas City V. Baird, 98 Mo. 215, 11 S. W. 562. 36 Taylor v. Chandler, supra; Regenstein v. City of Atlanta, 98 Ga. 167, 25 S. E. 428. §143) SUBJECTS OP TAXATION 445 ceive special benefits in a municipality are therefore liable to special burdens of taxation, and the same power of appor- tionment existing in the state government is likewise recog- nized in municipal government.*' This question has been more fully considered in the chapter on Improvements.*' , SUBJECTS OF TAXATION 143. The power of municipal taxation extends over all per- sons and property within municipal boundaries, and in certain instances also to adjacent realty. Municipal taxation, being for municipal benefit, has for its subjects all goods and chattels, lands and tenements, within the municipal boundaries,*" subject, of course, to such limita- 3T Mobile County v. Kimball, 102 U. S. 691, 26 L. Ed. 238; Village of Norwood v. Baker, 172 U. S. 269, 19 Sup. Ct. 187, 43 L. Ed. 443 ; Bauman v. Ross, 167 U. S. 548, 17 Sup. Ot. 966, 42 L. Ed. 270 ; In re Washington Ave., 69 Pa. 352, 8 Am. Rep. 255; Chamberlain v. City of Cleveland, 34 Ohio St. 551. 88 See ante, § 91. 39 Henderson Bridge Co. v. Henderson, 173 U. S. 592, 19 Sup. Ct. 553, 43 L. Ed. 823; In re Jones' Estate, 172 N. J. 575, 65 N. E. 570, 60 L. R. A. 476 ; City of Hughes v. Carl, 106 Ky. 533, 50 S. W. 852 ; Louisville Trust Co. v. City of Louisville (Ky.) 42 S. W. 340 ; City of Richmond v. Gibson (Ky.) 46 S. W. 702; Lamson Consol. Store Service Co. v. City of Boston, 170 Mass. 354, 49 N.B. 635; Buck V. Miller, 147 Ind. 586, 47 N. E. 8, 37 L. R. A. 384, 62 Am. St. Rep. 436; Gibblns v. Adamson, 5 Kan. App. 90, 48 Pac. 871; People ex rel. H Martin Bros. Mfg. Co. v. Barker, 14 Misc. Rep. 382, 36 N. Y. Supp. 76. The franchises of a corporation exercised and enjoyed by it in a city are property within the provisions of a city's charter requiring a tax on all property in it. Southwestern Telegraph & Telephone Co. V. San Antonio, 32 Tex. Civ. App. 101, 73 S. W. 859. In assessing property for taxation t&e dominant idea is that need- ful revenues shall be raised by levying a tax on property for valu- ation in such manner that every owner of property subject to, tax- ation shall pay taxes in proportion to the value of the property owned. State ex rel. Bee Bldg. Co. v. Savage, 65 Neb. 714, 91 N. W. 716. A city has no power to exempt taxable property within its limits from municipal taxation, and it can neither bind itself not to im- 446 TAXATION (Ch. 14 tions and restrictions as may be contained in the grant of power.*? In general, the rate of assessment upon all lands pose taxes on particular property nor to impose them only under given limitations. City of Tampa v. Kaunitz, 39 Fla. 683, 23 South. 416, 63 Am. St. Eep. 202. An agreement of a city to release property from taxation on con- sideration of permission to construct sewers across the land is void, as being beyond the power of the city. Coit v. City of Grand Rapids, 115 Mich. 493, 73 N. W. 811. A positive direction in the Constitution as to what property shall -be exempt contains an implication against an exemption of any other property by the Legislature. State v. Armstrong, 17 Utah, 166, 53 Pac. 981, 41 L. R. A. 407; State ex rel. Chamberlin v. Daniel, 17 Wash. Ill, 49 Pac. 243. Carriger v. Mayor, etc., • of Town of Morristown, 1 Lea (Tenn.) 118. A municipal corporation may not exempt any property in Its boundaries from - taxation, unless the Legislature, in the exercise of constitutional authority so to do, expressly clothes it with the power to make exemption; and then the municipal action must be clearly within the power conferred. Providence Bank v. Billings, 4 Pet (U. S.) 514, 7 L. Ed. 939; City of South Bend v. University of Notre I Dame du Lac, 69 Ind. 344; State v. Parker, 32 N. J. Law, 426; President, etc., of Harvard College v. Board of Aldermen of City of Boston, 104 Mass. 470 ; Biscoe v. Coulter, 18 Ark. 423 ; City of Ne\vport v. Covington & C. St. Ry. Co., 89 Ky. 29, 11 S. W. 954; City of Baltimore v. State ex rel. Board of Police of City of Balti- more, 15 Md. 376, 74 Am. Dee. 572. An exemption from taxation is never presumed, but must be clearly granted, Phoenix Pire & Marine Ins. Co. v. Tennessee, Use of Mem- phis, 161 U. S. 174, 16 Sup. Ct. 471, 40 L. Ed. 660; and statutes exempting property from taxation must be strictly construed against •those claiming the exemption, People ex rel. Breymeyer v. Watseka Camp Meeting Ass'n, 160 111. 576, 43 N. E. 716. But public property is not subject to general taxation. People ex rel. Mayor, etc., of New York, v. Board of Assessors, 111 N. T. 505, 19 N. E. 90, 2 L. R. A. 148 ; McCulloch v. Maryland, 4 Wheat. (U. S.) 316, 4 L. Ed. 579 ; City of Nashville v. Smith, 86 Tenn. 213, 6 S. W. 273 ; Green pr. Hotaling, 44 N. J. Law, 347 ; Emery v. San Francisco Gas Co., 28 Cal. 345 ; Erie County v. City of Erie, 113 Pa. 360, 6 Atl. 136; Willard v. Pike, 59 Vt. 202, 9 Atl. 907; City of Reading v. Berks County, 22 Pa. Super. Ct. 373; Warren County v. Nail, 78 Miss. 726, 29 South. 755; City of Somerville v. City of Waltham, 170 Mass. 160, 48 N. E. 1092; City of Newark v. Inhab- itants of Verona, 59 N. J. Law, 94, 34 Atl. 1060. But see City of Rochester v. Coe, 25 App. Div. 300, 49 N. Y. Supp. 502. 40 ADAMS v. DUCATE, 86 Miss. 276, 38 South. 497, Cooley, Cas. Mun. Corp. 338. § 143) SUBJECTS OF TAXATION iil must be equal. Exception has been made to this general doc- trine in some cases with regard to agricultural lands/ ^ for which a special rate has been provided ; but in other cases this discrimination has been held to be unconstitutional.'"' There is, indeed, some conflict as to the right of the municipality to tax agricultural lands. It has been held in Iowa and in Ken- tucky that agricultural lands, though within the corporate lim- its, are not subject to taxation for municipal purposes, es- pecially if from their location the benefits of police protection, lighting, etc., cannot be extended to them.*' It was, however, conceded that if the benefits of police and fire protection, water service, and lighting could be and were enjoyed by the lands, they would be subject to taxation for municipal purposes.** The prevailing rule, however, has always been that agricul- tural lands within the corporate limits are taxable for munici- pal purposes, irrespective of the question of benefits.** *i Allen v. City of Davenport; 107 Iowa, 90, 77 N. W. 532; Com- monwealth V.' Louisville & N. E. Co. (Ky.) 46 S. W. 206; Ryan v. Central City (Ky.) 54 S. W. 2; Martin v. Dlx, 52 Miss. 53, 24 Am. Rep. 661; Kelly v. City of Pittsburgli, 85 Pa. 170, 27 Am. Rep. 683; State v. Brown, 53 N. J. Law, 162, 20 Atl. 772 ; Land, Log & Lum- ber Co. V. Brown, 73 Wis. 294, 40 N. W. 482, 3 L. R. A. 472; Town of Dixon V. Mayes, 72 Cal. 166, 13 Pac. 471; McClay v. City of Lincoln, 32 Neb. 412, 49 N. W. 282 ; People ex rel. Bank for Savings in City of New York v. Miller, 84 App. Div. 168, 82 N. T. Supp. 621. *2 Town of Latonia v. Hopkins (Ky.) 47 S. W. 248 ; Sharp's Ex'r V. Dunavan, 17 B. Mon. (Ky.) 223; City of Davenport v. KaufCman, 34 Iowa, 194. See Briggs v. Town of Russellville, 99 Ky. 515, 36 S. W. 558, 34 L. B. A. 193. *3 TAYLOR V. CITY OP WAVERLX, 94 Iowa, 661, 63 N. W. 347, Cooley, Cas. Mun. Corp. 341; Courtney v. City of Louisville, 75 Ky. (12 Bush) 419. n PERKINS V. CITY OF BURLINGTON, 77 Iowa, 553, 42 N. W. 441, Cooley, Cas. Mun. Corp. 340; Briggs v. Town of Russellville, 99 Ky. 515, 36 S. W. 558, 34 L. R. A. 193. 4 5 Kelly V. City of Pittsburgh, 85 Pa. 170, 27 Am. Rep. 633; Davis V. Town of Point Pleasant, 32 W. Va. 289, 9 S. E. 228; State v. Brown, 53 N. J. Law, 162, 20 Atl. 772 ; Comstock v. Town of Water- ford, 85 Conn. 6, 81 Atl. 1059, 37 L. R. A. (N. S.) 1166 ; Atherton v. Village of Efesex Junction, 83 Vt. 218, 74 Atl. 1118, 27 L. R. A. (N. S.) 695, Ann. Cas. 1912A, 339. 448 TAXATION (Ch. 14 Adjacent Lands The power of the state is recognized in apportioning taxa- tion for local improvements to include in the taxation district with a municipality adjoining lands to be benefited by the improvement; and thus to create a special taxing district quoad hoc.** For the administration of this improvement the municipality is usually appointed the governmental agency, and empowered through its existing instrumentalities to as-? sess, levy, and collect taxes for the improvement, not only upon lands within, but lands beyond its local boundaries.*^ The power of taxation in such cases is confined to the special levy for the improvement, and cannot include taxation for general municipal purposes.*' Situs The law of actual situs prevails with regard to chattels.*® They are taxable by the municipality if they are usually kept or belong within its limits ; and this, it seems, is so regardless of the domicile of the owner."? But goods and chattels found 48 Spencer v. Merchant, 125 U. S. 345, 8 Sup. Ct. 921, 31 D. Ed. 763 ; Hagar v. Reclamation Dist. No. 108, 111 U. S. 701, 4 Sup. Ct. 663, 28 L. Ed. 569 ; Town of Macon v. Patty, 57 Miss. 378, 34 Am. Rep. 451; People v. Mayor, etc., of City of Brooklyn, 4 N. Y. 419, 55 Am. Dec. 266. 4 r In re House Bill No. 165, 15 Colo. 593, 26 Pac. 141. 48 Hemple v. City of Hastings, 79 Neb. 723, 113 N. W. 187 ; Wil- key V. City of Pekin, 19 111. 160; Pacific Sheet Metal Works v. Boeder, 26 Wash. 183, 66 Pae. 428 ; Wells v. City of Weston, 22 Mo. 384, 66 Am. Dec. 627. 49 Diamond Match Co. y. Ontonagon, 188 U. S. 82, 23 Sup. Ct. 266, 47 L. Ed. 394 ; Winston v. Salem, 131 N. C. 404, 42 S. E. 889 ; Ellis V. People, 199 111. 548; 65 N. E. 428; People ex rel. Orinoka Mills V. Barker, 84 App. Div. 469, 83 N. Y. Supp. 33. See 2 Dill. Mun. Corp. § 786. Logs floating in a lake, so that at time of assessment they were in different townships, but were all intended to be taken to a cer- tain sawmill, are assessable in the township where the mill is lo- cated. Mitchell V. Lake Tp., 126 Mich. 367, 85 N. W. 865. 50 Mills V. Thornton, 26 111. 300, 79 Am. Dec. 377 ; People v. Com- mlssioners of Taxes, 23 N. Y. 224; Carrier v. Gordon, 21 Ohio St. 605; City of Davenport v. Mississippi & M. R. Co., 12 Iowa, 539; § 143) SDBJK0T8 OF TAXATION 449 temporarily within a municipality are not taxable therein; as where a vessel is at a city wharf taking on freight, her situs is not there, but at the home port, or domicile of the owner."'- The same principle will apply to railway cars and locomotives. They would be taxable at the company yard or roundhouse."'* And so of other mobilia at the garage, dock, or stable where they are usually kept when not in use."' Notes, Bonds, and Choses in Action — Situs of Much contention has arisen over the situs of stocks and bonds, franchises, notes, and other choses in action. The gen- eral rule with regard to such classes of personalty is that they are taxable at the owner's domicile, if he be a natural per- son."* But it has been held that where the owner, a nonresi- City Council of Augusta v. Dunbar, 50 Ga. 387; St. Louis v* Wig- gins Ferry Co., H Wall. (U. S.) 423, 20 L. Ed. 192. 51 Johnson v. De Bary-Baya Merchants' line, 37 Fla. 499, 19 South. 640, 37 L. R. A. 518; Mayor, etc., of City of Mobile v. Baldwin, 57 Ala. 61, 29 Am. Rep. 712 ; Morgan v. Parham, 16, Wall. (U. S.) 471, 21 L. Ed. 303 ; City of St. Joseph ex rel. Hannibal & St. J. R. Co. V. Saville, 39 Mo. 460; Perry v. Torrence, 8 Ohio, 521, 32 Am. Dec. 725. 5 2 Chicago, B. & Q. R. Co. v. Hitchcock Co., 40 Neb. 781, 59 N. W. 358 ; PhUadelphia, W. & B. R. Co. v. Appeal Tax Court of Baltimore City, 50 Md. 397; Randall v. Elwell, 52 N. Y. 521, 11 Am. Rep. 747 ; Coe v. Columbus, P. & I. R. Co., 10 Ohio St. 372, 75 Am. Dec. 518 ; Milwaukee & M. R. Co. v. Milwaukee & St. P. R. Co., 2 Wall. (U. S.) 609, 17 D. Ed. 886. The value of the rolling stock of a corporation is capital employed within the state, unless such stock is used exclusively outside the state. People ex rel. New York Cent. & H. R. R. Co. v. Knight, 173 N. Y. 255, 65 N. E. 1102 ; Winton Coal Co. v. Commissioners (Pa. Com. PI.) 1 Lack. Leg. N. 195. 5 3 St. Louis V. Wiggins Ferry Co., 11 Wall. (U. S.) 423, 20 L. Ed. 192 ; City of Sacramento v. California Stage Co., 12 Cal. 134. 5 4 Corry v. Baltimore, 96 Md. 310, 53 Atl. 942, 103 Am. St. Rep. 364; City of Marquette v. Michigan Irofl & Land Co., 132 Mich. 130, 92 N. W. 934; Mackay v. City and County of San Francisco, 113 Cal. 392, 45 Pac. 696; In re Fair's Estate, 128 Cal. 607, 61 P'ac. 184. A deposit in a bank is a debt due the depositor, and its situs for the purposes of taxation is in the state of the depositor's domicile. Pyie v. Brenneman, 122 Fed. 787, 60 C. 0. A. 409 ; Clason v. City of New Orleans, 46 La. Ann. 1, 14 South. 306 ; Pacific Coast Sav. Soc. v. City COOL.MUN.COEP. — 29 450 TAXATION (Ch. 14 dent, habitually leaves such property on deposit in the hands of an agent for management, it is taxable at the agent's domi- cile; ^° and in case of corporations, whether domestic or for- and County of San Francisco, 133 Cal. 14, 65 Pac. 16. In People ex rel. New York Cent. & H. R. R. Co. v. Knight, 173 N. Y. 255, 65 N. E. 1102, it was held that where a domestic railroad owns the stock of a domestic transportation company which employs its cap- ital outside the state, such stock constitutes no part of the rail- road company's capital stock. Where money belonging to an estate was deposited in the city where one of three executors resided, one of the others being a nonresident, it was subject to taxation in such city. People ex rel. Lemmon v. Feitner, 167 N. Y. 1, 60 N. E. 265, 82 Am. St. Eep. 698. The capital stock of a corporation is subject to taxation only in the state of its domicile. Foster-Cherry Commission Co. v. Caskey, 66 Kan. 600, 72 Pac. 268. Capital invested by a nonresident of the state in a seat in the New York Stock Exchange is property taxable in the state. In re Glendinning's Estate, 171 N. ' Y. 684, 64 N. E. 1121 ; People ex rel. Philip Carey Mfg. Co. v. Commissioners of Taxes & Assessments, 39 Misc. Rep. 282, 79 N. Y. Supp. 485. See People ex rel. Dives-Pelican Min. Co. v. Feitner,- 77 App. Div. 189, 78 N. Y. Supp. 1017. Contra, Reat v. People, 201 111. 469, 66 N. E. 242; Lee V. Dawson, 8 Ohio Cir. Ct. R. 365. The sovereign power which gives the shares of corporations their being can also give them situs within its territory for the purposes of taxation. State v. Travelers' Ins. Co., 70 Conn. 590, 40 Atl. 465, 66 Am. St. Rep. 138 ; Dykes v. Lockwood Mortgage Co., 2 Kan. App. 217, 43 Pac. 268. See Tappan v. Merchants' Nat. Bank, 19 Wall. (U. S.) 490, 22 L. Ed. 189 ; Cleveland, P. & A. R. Co. v. Pennsylvania, 15 Wall. (U. S.) 800, 21 t,. Ed. 179 ; Sturges v. Carter, 114 U. S. 521, 5 Sup. Ct. 10^4, 29 Xj. Ed. 240 ; City of Davenport v. Mississippi & M. R. Co., 12 Iowa, 539; Collins v. Miller, 43 Ga. 336; Johnson v. Oregon City Council, 3 Or. 13 ; Hunter v. Board of Sup'rs of Page County, 33 Iowa, 376, 11 Am. Rep./ 132 ; Cornwall v. Todd, 38 Conn. 443; Mead v. Inhabitants of Roxborough, 11 Cush. (Mass.) 362; Kirtland v. Hotchkiss, 100 XJ. S. 491, 25 L. Ed. 558. 50 People ex rel. Durand-Ruiel v. Wells, 41 Misc. Rep. 144, 83 N. Y. Supp. 936; Northwestern Lumber Co. v. Chehalis County, 25 Wash. 95, 64 Pac. 909, 54 L. R. A. 212, 87 Am. St. Rep. 747 ; Catlin v. Hull, 21 Vt. 152 ; People v. Trustees of Village of Ogdensburgh, 48 N. Y. 390; Wilcox v. ElUs, 14 Kan. 588, 19 Am. Rep. 107; State, on Peti- tion of Taylor, v. St. Louis County Court, 47 Mo. 594; Tazewell County Sup'rs v. Davenport, 40 111. 197 ; South Nashville St. Ry. Co. V. Morrow, 87 Tenn. 406, 11 S. W. 348, 2 L. E. A. 853. Money or property held by an ancillary administrator is subject to taxation in the state granting such administration, where taxes § 144) STATE MAY IMPOSE 451 eign, its local franchises are taxable where they are used ; °'' and its notes and other choses in action at the place where they are usually kept.°^ STATE MAY IMPOSE 144. The state, in the exercise of its sovereign power, may impose special taxes upon the municipality for gov- ernmental, but not for strictly municipal purposes. In creating a municipal corporation and conferring upon it the taxing power, the state does not and cannot surrender its own inherent sovereignty over the people and property within the municipal boundaries. No municipal power can exist in perpetuity."' The Legislature exercising the sovereign func- tion of legislation may not only repeal the charter, and thus destroy the municipal life, but, since the greater includes the are not paid on it at the principal place of administration. Dorris V. Miller, 105 Iowa, 564, 75 N. W. 482. 58 Postal Tel. Cable Co. v. Norfolk, 101 Va. 125, 43 S. E. 207; Lon- don & San Francisco Bank v. Block (C. C.) 117 Fed. 900; Roche- blave Market Co. v. New Orleans, 110 La. 529, 34 South. 665; City of Detroit v. Donovan, 127 Mich. 604, 86 N. W. 1032 ; BUlinghurst V. Spink County, 5 S. D. 84, 58 N. W. 272 ; Manufacturers' Ins. Co. V. Loud, 99 Mass. 146, 96 Am. Dec. 715. The state board of equalization in assessing railroad property should include the value of the franchises with the taxable prop- erty. . State ex rel. Bee Building Co. v. Savage, 65 Neb. 714, 91 N. W. 7i6. B? People ex rel. Orinoka Mills v. Barker, 84 App. Div. 469, 83 N. X. Supp. 33; Armour Packing Co. v. Augusta, 118 Ga. 552, 45 S. B. 424, 98 Am. St. Hep. 128; Orange & A. R. Co. v. City Council of Alexandria, 17 Grat. (Va.) 185; Ontario Bank v. Bunnell, 10 Wend. (N. Y.) 186; British Commercial Life Ins. Co. v. Commis- sioners of Taxes and Assessments in New York, 31 N. Y. 32. Con- tra, Home Ins. Co. v. Board of Assessors, 48 La. Ann. 451, 19 South. 280. 5 8 Meriwether v. Garrett, 102 U. S. 472, 26 L. Ed. 197; People v. Morris, 13 Wend. (N. Y.) 325; Newton v. Mahoning County Gom'rs, 100 U. S. 548, 25 L. Ed. 710. 452 TAXATION (Ch. 14 less, it may withdraw powers conferred in whole or in part, and may exercise such powers itself." The inherent power of taxation possessed by a state may be exercised by the Legis- lature upon property within as well as without the municipal boundaries; and for any strictly governmental purpose it is conceded that the state may tax municipal property not only for general objects,'" but by special assessment for local im- provements.*^ It is also generally recognized by the courts that for purely municipal purposes the municipality may not be taxed by the state without its consent,"^ though upon this subject the cases are somewhat discordant; but there is great variety of de- cision in the various cases determining what is a governmental and what is a municipal purpose. The two leading cases in the United States representing these discordant views are those commonly known as the Philadelphia City Hall Case "^ and the Detroit Park Case,"* heretofore discussed. In the former of these it was ruled that the state might compel the city to pay for the erection of "an enormous pile which surpasses the town halls and cathedrals of the Middle Ages in extent, if not in grandeur"; "' and in the latter that the state could not compel the city to pay for the purchase and improvement of a city park."" Between these divergent views of legislative control over municipal corporations is found a variety of de- cisions in divers states as to the legislative power to impose BsWilUamson v. New Jersey, 130 U. S. 189, 9 Sup. Ct 453, .32 L. Ed. 915. 8 Ante, § 27. 81 2 Din. Mun. Corp. § 752. 62 1 Dill. Mun. Corp. §§ 72, 73; Cooley, Const Lim. (Cth Ed.) 284, 285. 8 8 Perkins v. Slack, 86 Pa. 283. 84 People ex rel. Board of Park Com'rs of Detroit v. Common Coun- cil of Detroit, 28 Mich. 228, 15 Am. Eep. 202. 60 1 Hare, Const. Law, 630. 66 People ex rel. Board of Park Com'rs of Detroit v. Common Council of Detroit, supra. Nor build a courtliouse. Oallam v. Sagi- naw, 50 Mich. 7, 14 N. W. 677. § 145) LIMITATION OF EXPBESS POWER 453 taxes upon a municipality, which generally recognize the doc- trine above-stated, but differ in its application to particular cases.*^ LIMITATION OF EXPRESS POWER 145. The municipality may exercise the power of taxation expressly conferred upon it only within constitu- tional limitations. This doctrine is so self-evident as scarcely to need elucida- tion; but much contention has arisen over express charter powers of taxation granted by the Legislature, and exercised by a municipality in strict conformity therewith. In practical operation, however, it was sometimes found that this not only wrought injustice, but produced results violative of constitu- tional protection. In some of these the taxation would not be equal and uniform *' as required by the organic law. In oth- ers it would not be for a public, but for a private, purpose. ^ Such results, being contrary to fundamental law, cannot be 6^ City of Baltimore v. Reitz, 50 Md. 574 ; Prince v. Crocker, 166 Mass. 347, 44 N. E. 446, 32 L. B. A. 610; In re Adams, 165 Mass. 497, 43 N. E. 682; Pumphrey v. Mayor, etc., of Baltimore, 47 Md. 145, 28 Am. Rep. 446 ; People v. Batchellor, 53 N. Y. 128, 13 Am. Rep. 480; Jefferson County Com'rs v. People ex rel. Griggs, 5 Neb. 136; Jensen v. Board of Supervisors of Polk County, 47 Wis. 298, 2 N. W. 320. « 8 Oliver v. Washington Mills, 11 Allen (Mass.) 268; Toungblood V. Sexton, 32 Mich. 406, 20 Am. Rep. 654; Gatlin v. Town of Tar- boro, 78 N. C. 119 ; State v. Traders' Bank, 41 La. Ann. 329, 6 South. 582; • Daly v. Morgan, 69 Md. 460, 16 Atl. 287, 1 L. R. A. 757; Marsh v. Board of Sup'rs of Clark County, 42 Wis. 502. Uniform taxation requires that the tax must be uniform through- out the territory to v^hich it is applicable. Day v. Roberts, 101 Va. 248, 43 S. E. 362 ; State ex rel. Bee Bldg. Co. v. Savage, 65 Neb. 714, 91 N. W. 716 ; W. C. Peacock & Co. v. Pratt, 121 Fed. 772, 58 C. C. A. 48; Adams v. Bank of Oxford, 78 Miss. 532, 29 South. 402; Phoenix Assur. Co. of London v. Fire Dept. of City of Montgomery, 117 Ala. 631, 23 South. 843, 42 L. R. A. 468. 89 Mclnemey v. Huelefeld, 116 Ky. 28, 75 S. W. 237, 25 Ky. Lavir Rep. 272 ; Burroughs, Tax'n, § 130. 454 TAXATION (Ch. 14 permitted when the power is challenged. The Legislature it- self can confer upon a municipality no greater measure of power than it possesses ; and, since it can enact no valid law contrary to the constitutional provisions, it can confer upon the municipality no power to pass unconstitutional ordi- nances." IMPLIED POWER 146. The municipality may levy taxes for the performance of any municipal duty imposed, or exercise of any municipal function conferred, upon it by charter or by general law. Of the three classes of municipal powers, express, inherent, and implied, it is obvious that a municipality for the purpose of taxation possesses the first within constitutional limitations, but may not exercise any under the second class. TWhat im- plied power for taxation belongs to a municipal corporation is not so easy to determine;^ Here, however, as elsewhere, in the construction of municipal charters, the general doctrine is applied that the corporation has by implication such measure of power as is necessary to the proper execution of the char- ter powers expressly granted.'^ Thus, as we have seen, the 7 Robbins v. Taxing Dist. of Shelby County, 120 U. S. 489, 7 Sup. Ct. 592, 30 L. Ed. 694 ; Burr v. City of Atlanta, 64 Ga. 225 ; City of Marshalltown v. Blum, 58 Iowa, 184, 12 N. W. 266, 43 Am. Rep. 116 ; State V. North, 27 Mo. 464; Wiley v. Parmer, 14 Ala. 627; Hitchcock V. City of St. Louis, 49 Mo. 484; Weeks v. City of Milwaukee, 10 Wis. 242; Citizens' Savings & Loan Ass'n v. Topeka, 20 Wall. (U. S.) 655, 22 L. Ed. 455. 71 City of Ottawa v. Carey, 108 U. S. 110, 2 Sup. Ct. 361, 27 L. Ed. 669; Risley v. City of Utica (C. C.) 179 Fed. 875; City of Eufaula V. McNab, 67 Ala. 588, 42 Am. Rep. 118 ; Town of Danville v. Shel- ton, 76 Va. 325 ; City of Charleston v. Reed, 27 W. Va. 681, 55 Am. Rep. 336; City of Corvallis^v. Carlile, 10 Or. 139, 45 Am. Rep. 134; Bennett v. City of Buffalo, "17 N. Y. 383 ; City of Fairfield v. Rat- cUfC, 20 Iowa, 396 ; Wright v. City of Chicago, 20 111. 252 ; Mayor, etc., of City of Annapolis v. Harwood, 32 Md. 471, 3 Am. Rep. 161. § 146) IMPLIED POWEE 455 power to borrow money implies the power of taxation suffi- cient to repay the loan.^^ The power to grade and pave streets implies the power to collect sufficient revenue to pay the ex- penses of the improvement.''* So, also, of the power to pre- serve public health,'* to purchase fire engines and other ap- paratus,'" to erect public buildings,'^ to purchase lands for public squares and parks,?^ and the like." Having the gen- eral power of taxation, the municipality may exercise it to raise revenue necessary for any of these charter purposes. But it has been held that the taxing power cannot be implied from a general welfare clause in the charter,'" nor from the power to enact by-laws for the good government of the town.*" Nor will power to make by-laws to "promote the benefit and. advantage of a corporation" authorize it to levy a tax to pay the expense of procuring the location of a railroad through the municipality.*^ So the power to regulate and improve streets does not include the power to make local assess- ments ; ^^ and the power to enact by-laws necessary for the "Ante, § 127. 7 3 Mayor, etc., of City of Annapolis v. Harwood, supra. 7 4 In re Taxpayers and Freeholders of Village of Plattsburgh, 157 N. Y. 78, 51 N. E. 512. 7 5 Sibley V. Mobile, 3 Woods, 535, Fed. Gas. No. 12,829; Desmond V. City of Jefferson (C. C.) 19 Fed. 483 ; City of Birmingbam v. Rum- sey, 63 Ala. 352. 7 6 Perkins v. Slack, 86 Pa. 283; Wood v. Bangs, 1 Dak. 179, 46 N. W. 586; Trustees of School Dist. No. 1 v. Jameson, 15 S. W. 1, 779, 12 Ky. Law Rep. 719. 77 In re City of New York, 99 N. Y. 569, 2 N. E. 642. 7 8 Oconto City Water Supply Co. v. City of Oconto, 105 Wis. 76, 80 N. W. 1113; Jonas v. City of Cincinnati, 18 Ohio, 318; State ex rel. Stewart v. Police Jury of Parish of JefCerson, 34 La. Ann. 673; United States ex rel. WolfC v. New Orleans, 103 U. S. 358, 26 L. Ed. 395. 7 9Conm)issioners of Town of Asheville v. Means, 29 N. C. 406; Mays V. City of Cincinnati, 1 Ohio St. 268. 8 Ex parte Burnett, 30 Ala. 461 ; Commissioners of Town of Ashe- ville V. 'Means, supra. 81 Minnesota Linseed Oil Co. t. Palmer, 20 Minn. 468 (Gil. 424). 8 2 City of Fairfield v. RatclifE, 20 Iowa, 396. 456 TAXATION (Ch. 14 security, welfare, and convenience of the city does not au- thorize a tax on liquor dealers.*' And so rigidly has the doc- trine of necessary implication been applied in some cases that it has been held that the power to remove obstructions and widen and deepen public waters does not authorize a local as- sessment for deepening the city harbor ; '* and even that the power to subscribe for the stock of a railroad does not in- clude the power to levy a tax to pay for the stock.* ° But this last case appears to be sporadic. LICENSE TAX 147. A license tax may be imposed by the municipality only when power is expressly conferred. Municipal licenses may be divided into two classes: (1) Police, and (2) revenue. It has been repeatedly held that a municipality may license certain occupations and forbid the exercise of the same by unlicensed persons.*' This is under the police power granted to the municipality; but in such case the fee to be charged against the licensee is determined by the necessary expense connected with the police regulation.*' The tajsing Epwigr, however, cannot be ihiplied from the police power.**? And so it has been repeatedly held that where the sum charged for a municipal license is obviously f oi* purposes of taxation, and not merely a license fee, the charge is un- authorized and void, unless authority to levy a license tax has 83 Ex parte Burnett, 30 Ala. 461. . 8 4 Wright V. City of Chicago, 20 111. 252. 8 Burnes v. Mayor, etc., of Atchison, 2 Kan. 454. 86 City of York v. Chicago, B. & Q. R. Co., 56 Neb. 572, 76 N. W. 1065 ; City of Rochester v. Upman, 19 Minn. 108 (Gil. 78) ; Kitson v. Mayor, etc., of Ann Arbor, 26 Mich. 326 ; 2 Dill. Mun. Corp. § 768. 87 McQuillln, Mun. Corp. vol. 3, §§ 991-1002. 8 8 Mayor, etc., of Town of Columbia v. Beasly, 1 Humph. (Tenn.) 232, 34 Am. Dec. 646; Kip v. Mayor, etc., of City of Paterson, 26 N. J. Law, 298. § 148) EXEECISE OF POWER 457 been expressly conferred by charter or general legislatiori." The tax on occupations is upon persons pursuing such occu- pations within the city, whether their residence be inside or outside the corporate limits. '"' And no discrimination can be made as between residents and nonresidents."^ A person re- siding within a city cannot be taxed upon his occupation if it be pursued exclusively outside the municipality,'* EXERCISE OF POWER 148. Record evidence of the action of the governing body of the municipality is essential to the validity of a tax levy. The power of taxation conferred upon a municipality must be exercised by the common council as the governing body of the corporation.^ It cannot be delegated by the council to officers or other persons/* unless the power of delegation be expressly conferred by the Legislature, and such legislation has been held to be constitutional."* This exercise of the tax- so Postal Tel. Cable Co. v. Norfolk, 101 Va. 125, 43 S. E. 207; City of Cape May v. Cape May Transp. Co., 64 N. J. Law, 80, 44 Atl. 948; Bull v. City of Quincy, 9 111. App. 127; Craig v. Burnett, 32 Ala. 728 ; Dunham v. Trustees of Rochester, 5 Cow. (N. T.) 462 ; Mays V. City of Cincinnati, 1 Ohio St. 268; Benson v. Mayor, etc., of City of Hoboken, 33 N. J. Law, 280. As to where permission to charge a license fee has been conferred, see Wilson v. City of Lex- ington, 105 Ky. 765, 49 S. W. 806, 50 S. W. 834 ; Morris v. Cummings, 91 Tex. 618, 45 S. W. 383 ; STATE ex rel. HOWE v. CITY OF DES MOINES, 103 Iowa, 76, 72 N. W. 639, 39 L. R. A. 285, 64 Am. St Rep. 157, Cooley, Cas. Mun. Corp. 325; City of Lake Charles v. Po- lice Jury of Parish of Calcasieu, 50 La. Ann. 346, 23 South. 376. »o Worth V. Commissioners of Fayetteville, 60 N. C. 617. «i Mayor, etc., of City of Nashville v. Althrop, 5 Cold. (Tenn.) 555; State ex rel. Adger v. Mayor, etc., of City of Charleston, 2 S'peers (S. C.) 719 ; Joyce v. Woods, 78 Ky. 386. »2 McQuillin Munj,Corp. vol. 3, § 996. 83 Davis V. Read, 65 N. T. 566; Thomson v. Mayor, etc., of City of Booneville, 61 Mo. 282 ; City of Indianapolis v. Lawyer, 38 Ind. 348. 9*Foss V. City of Chicago, 56 111. 354; Johnston v. Mayor, etc., of City of Macon, 62 Ga. 645. 85 Schwartz v. Thirty-Two Platboats, 14 La. Ann. 243. 458 TAXATION (Ch. 14 ing power by the council applies alike to general and local as- sessments; but the Legislature may expressly confer upon other bodies or persons the power to make local assessments." It is not an unwarranted exercise or delegation of the power of taxation for a city itself to appoint an engineer or com- mittee to make a local assessment, and to make the levy by receiving and confirming the report.*' Record Necessary But there can be no such thing as oral taxation."' The governing body in lawful session hiust enact the ordinance levying the tax, and must make a record of the same, and such levy can be proven only by the record.V In case of loss or destruction of the record it may be established in the manner provided by law.^ The levy is invalid, and taxes cannot law- fully be collected thereunder, unless it is made by the body, and substantially in the manner directed by law." A void levy cannot be validated by subsequent ratification.' But under proper legislative authority a valid reassessment may be made.* 96 Bower v. Bainbridge, 116 Ga. 794, 43 S. E. 67 ; Parker t. May- or, etc., of City of New Brunswick, 30 N. J. Law, 395 ; Schenley v. Commonwealtli, to Use of City of Allegheny, 36 Pa. 29, 78 Am. Dec. 859. 9? West V. Whitaker, 37 Iowa, 598. 98 Farrar v. Fessenden, 39 N. H. 268. 99 Moser v. White, 29 Mich. 59; Godfrey v. Bennington Water Co., 75 Vt. 350, 55 Atl. 654; City of New York y. Watts, 40 Misc. Rep. 595, 83 N. Y. Supp. 23. 1 Williams v. Inhabitants of School Dist. No. 1, In Lunenburg, 21 Pick. (Mass.) 75, 32 Am. Dec. 243. 2 Burroughs, Tax'n, § 148 ; Allen v. City of Galveston, 51 Tex. 302 ; Lott V. Ross, 38 Ala. 156 ; Boice v. Inhabitants of City of Plainfield, 38 N. J. Law, 95; Green v. Ward, 82 Va. 324; City of Orlando v. Equitable Bldg. & Loan Ass'n, 45 Fla. 507, 33 South. 986. 3 Hart V. Henderson, 17 Mich. 218; People v. Goldtree, 44 Cal. 323; Dean v. Borchsenius, 30 Wis. 236. But where a tax was void only because it exceeded the limit im- posed by statute, the assessment could be validated by a subsequent act Kettelle v. Warwick & Coventry Water Co., 23 R. I. 114, 49 Atl. 492. 4 Tallman v. City of JanesvlUe, 17 Wis. 71 ; City of New Orleans v. § 149^ ASSESSMENT AND COLLECTIOK ioO ASSESSMENT AND COLLECTION 149. Municipal taxes may be assessed and collected by state officers under general law, or by municipal officers thereunto authorized lay the state, and appointed and directed by the municipality. Divers methods of assessing and collecting revenue prevail in the various states. Unless otherwise specially provided by law, the general methods of state taxation are to be pursued by municipalities." Municipal taxes may be assessed and col- lected by state officers, or municipal officers appointed for this purpose may discharge this duty either as directed by statute or under municipal ordinances when authorized by law. Tax Duplicates or Assessment Lists The municipality may use the tax duplicate or assessment list of the county or a special municipal assessment list may be made for the corporation according as the law may pro- vide.* Under the latter method corrections may be made substantially in the same manner as in county assessments.' Collections — Liens 'And as in case of assessments, so of collections, the duty may be performed under law either by county or municipal officers,* and collections may be enforced in substantially the Poutz, 14 La. Ann. 853; Fairfield v. People ex rel. McCrea, 94 111. 244; Doyle v. Mayor, etc., of City of Newark, 34 N. J. Law, 236. 5 Burroughs, Tax'n, § 140. Where a special method is prescribed by statute for the collection of taxes, it must be pursued to the exclu- sion of others based on general principles. Board of Chosen Free- holders of Atlantic County v. Inhabitants of Weymouth Tp., 68 N. J. Law, 652, 54 Atl. 458. 8 State V. Godfrey, 24 Ohio Cir. Ct B. 455 ; Deason v. Dixon, 54 Miss. 585 ; Garey v. City of Galveston, 42 Tex. 627 ; Nason v. Whit- ney, 1 Pick. (Mass.) 140; Wingate v. Ketner, 8 Wash. 94, 35 Pac. 591. T Ante, i 26. s Commonwealth v. Jimison, 205 Pa. 367, 54 Atl. 1036; Logan County v. Carnahan, 66 Neb. 685, 92 N. W. 984, 95 N. W. 812 ; City 460 TAXATION (Ch. 14 same method as that pointed out for quasi corporations.* A valid assessment constitutes a lien upon the property, which may be enforced by judicial proceeding.^" An action at law also lies in favor of the corporation against the owner of the property for taxes thereon unpaid. ^^ Tax a Debt In some states taxes due are regarded as a debt, and as- sumpsit will lie in favor of a municipality against the person in whose name the assessment is made.^^ When specially au- thorized upon a municipal levy, a distress warrant may be issued thereon, which has the legal force of judgment and of Pensacola v. Sullivan, 23 Fla. 1, 6 South. 922 ; Webb v. Beaufort, 88 N. C. 496; City of Ft. Wayne v. Lelir, 88 Ind. 62; Hiestand v. City of New Orleans, 14 La. Ann. 330. A tax collector has no authority to sell property beyond the limits of his own county. Morrison v. Casey, 82 Miss. 522, 34 South. 145. » Post, § 182. loHertzler v. Cass County, 12 N. D. 187, 96 N. W. 294; Harris FrankUn & Co. v. Layport, 4 Neb. (Unof.) 636, 95 N. W. 851 ; People V. Smith, 123 Cal. 76, 55 Pac. 765 ; Spiech v. Tierney, 56 Neb. 514, 76 N. W. 1090; City of Easton v. Drake, 9 Kulp (Pa.) 320; In re Goodwin Gas Stove & Meter Co.'s Estate, 3 Pa. Dist. K. 483. Taxes are not liens on property on which they are assessed unless expressly made so by statute. Skinner v. Christie, 52 N. J. Eq. 720, 29 Atl. 772 ; Burroughs, Tax'n, §§ 109, 140. But see Palmer v. Pet- tingill, 6 Idaho, 346, 55 Pac. 653. 11 Meredith v. United States, 13 Pet. (U. S.) 486, 10 L. Ed. 258. Contra, Montezuma Valley Water Co. v. Bell, 20 Colo. 175, 36 Pac. 1102. 12 Ellis V. People, 199 111. 548, 65 N. E. 428. But the suit should be brought in name of the state. Chancellor of State of New Jer- sey T. City of Elizabeth, 66 N. J. Law, 687, 52 Atl. 1130 ; City of Dubuque v. Illinois Cent. R. Co., 39 Iowa, 56; Rundell v. Lakey, 40 N. Y. 517; Town of Geneva v. Cole, 61 111. 397; City of Jones- boro V. Mayor, etc., of City of McKee, 2 Yerg. (Tenn.) 167; Win- ter V. City Council of Montgomery, 79 Ala. 481; Gordon v. Mayor, etc., of City of Baltimore, 5 Gill (Md.) 231; State ex rel. Kansas City, St. J. & C. B. R. Co. v. Severance, 55 Mo. 378. It was held in Missouri that a municipality cannot impose a tax lien upon property without express charter authority. City of Spring- field V. Starke, 93 Mo. App. 70. See Chamberlain v. Woolsey 66 Neb. 141, 92 N. W. 181, 95 N. W. 38. But see Brule County v. King, 11 S. D. 294, 77 N. W. 107, where § 149) ASSESSMENT AND COLLECTION 461 execution at law.^* If the charter is silent, common-law ac- tion, and not summary proceeding, is the proper method of enforcing collection.^* These regulations applicable to gen^ eral taxes are usually held not to apply in local assessments ;^° and there are many cases distinguishing debts and taxes,^' and some holding that no common-law action will lie for tax- es.*'' At present, in most of the states efficient methods for collecting municipal taxes, either summary or otherwise, are prescribed by legislation, and resort to common-law remedies is rarely necessary. the only method of collecting personal taxes authorized by the stat- ute is by distress and sale, and it was held that they are not recov- erable by action, since they are not debts. 18 Mayor, etc., of City of Baltimore v. Howard, 6 Har. & J. (Md.) 383 ; Noble v. Amoretti, 11 Wyo. 230, 71 Pac. 879 ; City of Easton v. Drake, 9 Kulp (Pa.) 320 ; Palmer y. Pettingill, 6 Idaho, 346, 55 Pac. 653. 14 Corporation of City of Amite v. dlementz, 24 La. Ann. 27; City of Jefferson v. McCarty, 74 Mo. 55 ; City of Camden v. Alien, 26 N. J. Law, 398 ; City Council of Augusta v. Dunbar, 50 Ga. 387. 10 Paine v. Spratley, 5 Kan. 525; Hale v. City of Kenosha, 29 Wis. 599; Emery v. San Francisco Gas Co., 28 Cal. 345; Worcester Agricultural Society v. Mayor, etc., of City of Worcester, 116 Mass. 189. 16 Shaw V. Peckett, 26 Vt. 486; Lane County v. Oregon, 7 Wall. (U. S.) 71, 19 L. Ed. 101 ; Meriwether v. Garrett, 102 U. S. 472, 26 L. Ed. 197. 17 City of Camden. V. Allen, 26 N. J. Law, 398; City of Augusta V. North, 57 Me. 392, 2 Am. Rep. 55; City of Detroit v. Jepp, 52 Mich. 458, 18 N. W. 217; City of Charleston v. Oliver, 16 S. C. 47. When the statute provides a remedy for the collection of taxes under given circumstances, that remedy is exclusive of all others. Chamberlain v. Woolsey, 66 Neb. 141, 92 N. W. ;.81, 95 N. W. 38. And so, also, when a city charter gives a method for the assessment, levy, and collection of city taxes. City of Rochester v. Gleichauf, 40 Misc. Rep. 446, 82 N. T. Supp. 750. But see City of Burlington V. Burlington & M. R. R. Co., 41 Iowa, 134 ; Mayor, etc., of City of Baltimore v. Howard, 6 Har. & J. (Md.) 383. 462 TAXATION (Ch. 14 TAXATION FOR CREDITORS 150. The courts may compel the levy and collection of tax- es by a municipality to satisfy municipal injdebted- ness. A municipal creditor having matured indebtedness against a municipality may pursue the usual methods to enforce col- lection by action at law, judgment, and execution;^* but, since all municipal property used in the performance of gov- ernmental functions is exempt from execution,^" such mode of collection usually proves inadequate, and the creditor finds the usual remedy at law greatly embarrassed, and oftentimes totally ineffective. Whenever this is made to appear, the courts will grant him the remedy of mandamus to enforce satisfaction by means of taxation.^" Mandamus In the federal courts and some state courts a judgment is an essential prerequisite to this writ; ^^ but in many of the, state courts this is not the rule; ^^ and in some the procedure ad- ■ mits of a judgment and mandamus in the same siiit.^' 18 HoUaday v. Frisbie, 15 Cal. 630; Brown v. Gates, 15 W. Va. 131; Hart V. City of New Orleans (O. C.) 12 Fed. 292. i» Meriwether v. Garrett, 102 U. S. 472, 26 L. Ed. 197; Foster r. Fowler, 60 Pa. 27 ; Darling v. Mayor, etc., of Baltimore, 51 Md. 1. 2 City of Olney v. Harvey, 50 Ilk 453, 99 Am. Dec. 530; Klein V. New Orleans, 99 U. S. 149, 25 L. Ed. 430; Curry v. Mayor, etc., of City of Savannah, 64 Ga. 290, 37 Am. Rep. 74; Darlington v. Mayor, etc., of City of New York, 31 N. Y. 164, 88 Am. Dec. 249. But one having a general judgment against a citj- is not entitled to mandamus to compel payment from funds derived from taxes levied for the payment of certain bonds. State ex rel. Hopper v. Cottengin, 172 Mo. 129, 72 S. W. 498. 21 Bath County v. Amy, 13 Wall. (U. S.) 244, 20 L. Ed. 539 ; Peo- ple ex rel. Lawrence v. Board of Sup'rs of Clark County, 50 111. 213 ; State ex rel. White v. Clay County, 46 Mo. 231; Coy v. City Council of Lyons City, 17 Iowa, 1, 85 Am. Dep. 539. 2 2 State ex rel. Ross v. Anderson County, 8 Baxt. (Tenn.) 249; Louisville & N. R. Co. v. Davidson County Court, 1 Sneed (Tenn.) 2s See note 23 on following page. § 150) TAXATION FOB CEEDITOES 463 The court may not appoint officers or commissioners to levy and collect the taxes/* but enforces the collection by manda- mus against the officers empowered to perform these func- tions.^® If assessors or collectors fail or refuse to perform their duty in obedience to the order of the court, they may be punished for contempt.^® The court may also by appropriate order compel the application of the fund collected to the satis- faction of the plaintiff's demand. ^^ 637, 62 Am. Dec. 424; Flagg v. Mayor, etc., of City of Palmyra, 33 Mo. 440; Justices of Clarke County Court v. Paris, W. & K. R. Turnpike Co., 11 B. Mon. (Ky.) 143 ; Brown v. Orego, 32 Iowa, 498 ; State ex rel. Sherman v. Common Couucil of City of Milwaukee, 20 Wis. 87. 23 City of Watertown v. Cady, 20 Wis. 501 ; Nelson v. Justices of Carter County, 1 Cold. (Tenn.) 207. 2*Eees V. Watertown, 19 Wall. (U. S.) 107, 22 L. Ed. 72; Walk- ley V. Muscatine, 6 Wall. (U. S.) 481, 18 I,. Ed. 930. 2iiMaddox v. Graham, 2 Mete. (Ky.) 56; Bassett v. Barbin, 11 La. Ann. 672 ; State ex rel. Soutter t. Common Council of City of Madi- son, 15 Wis. 30. 2 8Beachy v. Lamkin, 1 Idaho, 50; Ex parte Holman, 28 Iowa, 88, 4 Am. Eep. 159. 2 7 Galena v. United States ex rel. Amy, 5 WaU. (U. S.) 705, 18 L. Ed. 560; Coy v. City Council of Lyons City, 17 Iowa, 1, 85 Am. Dec. 539. 464 ACTIONS (Ch. 15 CHAPTER XVi ACTIONS 151. A Municipality may Sue and be Sued. 152. Plaintiff in Actions Ex Contractu. 153. Defendant in Actions Ex Contractu. 154. Plaintiff in Actions Ex Delicto. 155. Defendant in Actions Ex Delicto. 156. Mandamus. 157. Quo Warranto. 158. Certiorari. 159. Complainant in Chancery. 160. Defendant in Chancery. 161. Injunctions. 162. Criminal Prosecution. A MUNICIPALITY MAY SUE AND BE SUED 151. Capacity to sue and be sued in its corporate name is an essential attribute of the municipal corporation. "Certain powers are incidental to corporate existence, and are impliedly conferred upon every corporation unless there is something in the charter to show an intention to exclude them." ^ Such powers are variously termed "incidental," "es- sential," "indispensable," or "inherent." ^ Among, these es- sential incidents are a corporate name and seal, the power to make by-laws, to purchase, hold, and alienate property, to have perpetual succession, and to sue and be sued by the cor-' porate name.' Whatever doubts may exist as to the capacity 1 Clark, Priv. Corp. % 51. 2 1 DUl. Mun. Corp. § 89 ; Marsh. Corp. § 57 ; Am. Mun. Corp. c. 3 ; Clark, Priv. Corp. § 49. 3 A municipal corporation may sue and be sued in its proper cor- porate name. Powers v. Mayor, etc., of Town of Decatur, 54 Ala. 214 ; City of Boston v. Schaffer, 9 Pick. (Mass.) 415. A city has inherent power to sue, and therefore need never allege that power. City of Janesville v. Milwaukee & M. R. Co., 7 Wis. 484. Where an action is brought by a city, in its corporate name, by § 152) PLAINTIFF IN ACTIONS EX CONTRACTU 465 of quasi corporations to sue and be sued,* nope pertain to mu- nicipal corporations. Being chartered and empowered to ex- ist and act as corporations, they are distinct legal entities, and as such are protected by and amenable to the law. A munici- pality, therefore, like any other complete corporation or per- son, may appeal to the courts for vindication of its rights, and for wrong done by it may bfe sued by the injured party.* PLAINTIFF IN ACTIONS EX CONTRACTU 152. To redress a wrong arising out of breach of contract, the mimicipality may bring and maintain the prop- er common-law action, or any statutory substitute therefor. A municipality may make contracts with other corporations, public or private, and with natural persons, from the breach of which by them the municipality may suffer loss or damage. For redress of such an injury the courts are open to a mu- nicipal corporation just as to a private corporation or a nat- ural person.^ The same form of redress is alike open to all for identical injuries. If the contract broken by the other party had been executed under seal, the action of covenant lies to recover damages for the breach.' If it was an express its proper law oflBcers, it will be presumed that the action is author- ized, until the contrary appears. Lincoln St. Ry. Co. v. City of Lin- coln, 61 Neb. 109, 84 N. W. 802. See Clark, Priv. Corp. § 51. *Ante, §§ 6, 7. B Burrill v. Boston, 2 Cliff. 590, Fed. Cas. No. 2,198 ; Mayor, etc., of City of Jonesboro v. McKee, 2 Yerg. (Tenn.) 167. 8 Village of Buffalo v. Harling, 50 Minn. 551, 52 N. Wl 931; Oliver V. City of Worcester, 102 Mass. 489, 3 Am. Rep. 485; City of Detroit V. Corey, 9 Mich. 165, 80 Am. Dec. 78; City of Buffalo v. Bettinger, 76 N. ;r. 393. 7 Board of Sup'rs of St. Joseph County v. Coffenbury, 1 Mich. 355 ; Turner v. Clark County, 67 Mo. 243; Sweetser v. Hay, 2 Gray (Mass.) 49. O ool.Mttn.Cokp. — 30 466 ACTIONS (Ch. 15 contract for the payment of a specified sum of money, debt will be the proper form of action.' This form of action has been used to recover a fixed penalty for breach of municipal ordinance.* The municipality may sue in assumpsit to re- cover for breach of an impHed contract;^" or for any mat- ters of the common counts; ^^ and also for the penalty of an ordinance whether fixed or discretionary.^^ In states where the common-law forms of action have been abolished, the municipality may avail itself of the proceeding provided in the Code as the equivalents of those above mentioned to re- dress wrongs arising from breach of contract.^^ Such ac- tions are subject to the general rules of procedure, applying alike to all plaintiffs, natural and corporate.^* DEFENDANT IN ACTIONS EX CONTRACTU 153. The municipality, like any other corporation, is liable to be sued in assumpsit, debt, or covenant, or any equivalent statutory action for breach of contract by it. As we have heretofore seen, a municipal corporation, within the scope of its charter powers, may contract obligations to » 1 Chitty, PI. (14th Am. Ed.) 108. 9 Staats V. Inhabitants of Borough of Washington, 45 N. J. Law, 318; Barter v. Commonwealth, 3 Pen. & W. (Pa.) 253; 1 Dill. Mun. Corp. § 409. 10 (Unpaid taxes) Dugan v. Mayor, etc., of City of Baltimore, 1 Gill. & J, (Md.) 499; Mayor, etc., of City of Jonesboro v. McKee, 2 Yerg. (Tenn.) 167; Town of Geneva v. Cole, 61 111. 397. 11 1 Chitty PI. (14th Am. Ed.) 341. 12 Ewbanks v. President, etc., of Town of Ashley, 36 111. 178; Gree- ley V. City of Passaic, 42 N. J. Law, 429. 13 ©eitz V. City of Central, 1 Colo. 323 ; Town of Brookville v. Ga- gle, 73 Ind. 117 ; Coates v. Mayor, eitc, of City of New York, 7 Cow (N. Y.) 585. "Fitch V. Pinckard, 5 111. (4 Scam.) 78; City Council v. Dunn, 1 § 153) DEFENDANT IN ACTIONS EX CONTEACTU 467 Others, which it may not violate with impunity. The posses- sion by the municipality of the sovereign powers of police, taxation, and eminent domain does not give it immunity from legal obligation, nor exempt it from the process of law.^° Being capable to contract within the scope of its powers, it assumes thereby legal obligation, for the breach of which an action will lie against it just as against other corporations or persons.^' If the contract broken was executed by the cor- poration with due formality under its corporate seal, covenant will lie against it.^' Indeed, in England this is the only proper form of action on an executory contract, which lies against a municipality, since informal corporate contracts are not there recognized.^* But in America, as we have heretofore seen, corporations may be bound by contracts informally executed by its of35cers, either in writing or orally.^" For breach of such contracts the proper action would be debt or assumpsit, according to the rules distinguishing these two kinds of ac- tion."" In the Code states the action would be brought in McCord (S. C.) 333; Napman v. People, 19 Mich. 352; Keeler v. Mil- ledge, 24 N. J. Law, 142. 15 1 Dill. Mun. Corp. § 9. 16 Burnett v. Abbott, 51 Ind. 254; City of New Orleans v. Guil- lotte's Heirs, 12 La. Ann. 818; Douglass v. Mayor, etc., of Virginia City, 5 Nev. 147. 17 Morrell v. Sylvester, 1 Greenl. (Me.) 248; People v. Benfield, 80 Mich. 265, 45 N. W. 135 ; Inhabitants of Town of Montville v. Haugh- ton, 7 Conn. 543 ; City of Platteville v. Hooper, 63 Wis. 385, 23 N. W. 583 ; Mayor, etc., of City of New York v. Crawford, 111 N. Y. 638, 19 N. B. 501. 18 Arn. Mun. Corp. p. 29. 18 Ante, § 73. 2oArgenti y. City of San Francisco, 16 Cal. 255; Marble Co. t. Harvey, 92 Tenn. 115, 20 S. W. 427, 18 L. R. A. 252, 36 Am. St. Rep. 71; Louisiana City v. Wood, 102 U. S. 294, 26 L. Ed. 153; Mayor, etc., of City of Nashville v. Toney, 10 Lea (Tenn.) 643; Peterson v. Mayor, etc., of City of New York, 17 N. Y. 449; Tucker v. Mayor, etc., of Virginia City, 4 Nev. 20. So, also, for a void tax paid under compulsion or protest. City of Grand Rapids v. Blakely, 40 Mich. 367, 29 Am. Rep. 539; Lincoln v. City of Worcester, 8 Cush. (Mass.) 55; Briggs v. Inhabitants of Lewiston, 29 Me. 472; Thomas v. City of Burlington, 69 Iowa, 140, 468 ACTIONS (Ch. 15 the manner provided for redressing injuries arising ex con' tractu." Appearance to actions may be entered only by at- torney, since corporations cannot appear in person.^* Execution Actions may be prosecuted to judgment against the munici- pality as against any other corporation or person ; but in most states thp mode of executing, the judgment is not identical. In some states the judgment is allowed to be executed by the ordinary writ of fieri facias issued against the property of the municipality.^* It may then be levied upon such goods and chattels, lands and tenements, owned by the municipality as are not indispensable to the public convenience and safety.^* But the doctrine prevailing in America is that municipal prop- erty is not subject to levy on either attachment or execution.^' The substitute for fieri facias in such cases is mandamus against the municipality and its officers commanding the sat- 28 N. W. 480; State v. Nelson, 41 Minn. 25, 42 N. W. 548, 4 L. R. A. 300; Westlake & Button v. City of St. Louis, 77 Mo. 47, 46 Am. Rep. 4; Corporation of City of Marshall v. Snediker, 25 Tex. 460, 78 Am. Dec. 534; Smith v. Farrelly, 52 Cal. 77 ; Stephan v. Daniels, 27 Ohio St. 527. 21 Ante, § 152, note 13. 22 Am. Mun. Corp. p. 28; Coke, Lit. c. 28, 66; Case of Sutton's Hospital, 10 Coke, 30. But see Sharp v. Mayor, etc., of City of New Tork, 31 Barb. (N. Y.) 572. 23 City of Independence v. Trouvalle, 15 Kan. 70; Gabler v. Treas- urer of City of Elizabeth, 42 N. J. Law, 79; Darlington v. Mayor, etc., of City of New York, 31 N. Y. 164, 88 Am. Dec. 248 ; Mayor, etc., of Birmingham v. Rumsey, 63 Ala. 352. 2 4 Brown v. Gates, 15 W. Va. 131; City of New Orleans v. Home Mut. Ins. po., 23 La. Ann. 61; Same v. Morris, 105 U. S. 600, 26 L. Ed. 1184; Freem. Ex'ns, §§ 22, 126. 2 5 No execution can issue against a municipal corporation. Village of Sheridan v. Hibbard, 19 111. App. 421; Id., 119 111. 307, 9 N. E. 901; City of Cairo v. Allen, 3 111. App. 398; City of Flora v. Naney, 136 111. 45, 26 N. E. 645 ; Monaghan v. City of Philadelphia, 28 Pa. 207; City of McGregor v. Cook (Tex.) 16 S. W. 936; Emeric v. Gil- man, 10 Cal. 404, 70 Am. Dec. 742; Townsend v. Greeley, 5 Wall. (U. S.) 326, 18 L. Ed. 547; Crane v. City of Fond du Lac, 16. Wis. 196; Curry v. Mayor, etc., of City of Savannah, 64 Ga. 290, 37 Am. Rep. 74. § 154) PLAINTIFF IN ACTIONS EX DELICTO 469 isfaction of the debt out of the municipal treasury,*' and, if necessary, a tax levy to raise the funds required therefor.*^ PLAINTIFF IN ACTIONS EX DELICTO 154. If a municipality suffers an injury to any corporate right or property from the tortious act or conduct of another corporation or person, it may have re- dress therefor by the proper common-law action, or its modern statutory substitute. A municipal corporation may suffer 'injury in its property from the wrongful acts or omissions of other persons or cor- porations. Some of these may be redressed, as shown herein- before,^* by action for penalty for breach of municipal ordi- nance ; others may not be provided for in the municipal code. But whether the wrong done is or is not within the prohibi- tion of the municipal ordinance, the courts are open to the municipality for the vindication of its rights and the redress of its wrongs according to the course of the common law; and, like any other person or corporation suffering an injury from tortious conduct of another, the municipality may bring suit and recover damages to compensate its loss.^' 2 6 Gooch V. Gregory, 65 N. C. 142; City of Bloomington v. Brokaw, 77 111. 194 ; Charnock v. District Tp. of Colfax, 51 Iowa, 70, 50 N. W- 286, 33 Am. Eep. 116; Klein v. New Orleans, 99 U. S. 149, 25 L. Ed. 430; Amy v. City of Galena (C: C.) 10 Biss. 263, 7 Fed. 163; Mon- aglian v. City of Philadelphia, 28 Pa. 207; United States v. New Orleans (C. C.) 17 Fed. 483. 2 7 Butz V. MuscaUne, 8 Wall. (U. S.) 575, 19 L. Ed. 490; Coy v. City Council of Lyons City, 17 Iowa, 1, 85 Am. Dec. 539. 2 8 Ante, § 52. 2 9 Whitfield V. Longest, 28 N. C. 268; City of Bridgeport v. Hou- satonic R. Co., 15 Conn. 475; Union Coal Co. v. City of La Salle, 136 lU. 119, 26 N. E. 506, 12 L. K. A. 326; Board of Selectmen of Jersey City v. Dummer, 20 N. J. Law, 86, 40 Am. Dec. 213 ; Town of Castleton v. Langdon, 19 Vt. 210 ; City of Winona v. Huff, 11 Minn. 119 (Gil. 75); Commissioners of Town of Bath v. Boyd, 23 N. C. 196; Weeping Water v. Reed, 21 Neb. 261, 31 N. W. 797. 470 ACTIONS (Ch. 15 DEFENDANT IN ACTIONS EX DELICTO 155. For any tort committed or permitted by a municipal corporation, an action lies against it to any one sustaining loss or damage therefrom in person or property. How a municipal corporation may be guilty of tort has been set forth at length in a previous chapter.*" Whenever, under the rules there stated, a municipality commits or per- mits a tort, the person sustaining damage therefrom may re- dress his wrong by the appropriate common-law action, which may be case, trespass, detinue, trover, or replevin, according to the nature of the wrong done.'^ Ejectment also, and entry and detainer, may be brought upon proper facts against the municipality as well as by it.°^ Qui Tarn Actions It has also been held that a municipality, as well as a nat- ural person, is liable to a qui tam action provided by statute, to be brought by any private person to recover a penalty im- posed for nonfeasance or nlisfeasance in the matter of a stat- utory dutyJ*' 30 Chapter 12. 81 Moulton V. Inhabitants of Scarborough, 71 Me. 267, 36 Am. Rep. 308; City of Pekin v. McMahon, 154 111. 141, 39 N. E. 484, 27 L. E. A. 206, 45 Am. St. Rep. 114; Oliver v. City of Worcester, 102 Mass. 489, 3 Am. Rep. 485; Town of Suffolk v. Parker, 79 Va. 660, 52 Am. Rep. 640; Inhabitants of First Parish in Sudbury v. Stearns, 21 Pick. (Mass.) 148; School Dist. No. 5 in Sanford v. Lord, 44 Me. 374; City of Chicago v. Taylor, 125 U. S. 161, 8 Sup. Ct. 820, 31 L. Ed. 638; Chadbourne v. Town of Newcastle, 48 N. H. 196; Williams v. City of New Orleans, 23 La. Ann. 507; Albrittin v. Mayor, etc!, of City of HuntsviUe, 60 Ala. 486, 31 Am. Rep. 46. 3 2 Sower V. City of Philadelphia, 35 Pa. 231 ; City of Boston v. Rob- bins, 126 Mass. 384; Armstrong v. City of St. Louis, 69 Mo. 309, 33 Am. Rep. 499. 33 Bronson v. Town of Washington, 57 Conn. 346, 18 Atl. 264. § 155) DEFENDANT IN ACTIONS EX DELICTO 4:71 Not Liable — When But the municipal corporation is not liable to an action ex delicto unless it has committed or permitted a tort. This self- evident proposition needs attention as a warning against de- ceptive appearances. Private injuries are often sustained from the act or neglect of municipal officers, contractors, or employes, for which no action lies against the municipality. Such cases are embraced in three "classes : (1) Governmental acts; (2) acts ultra vires; (3) unauthorized acts. A wrong- ful act done by any one without authority from the munici- pality is not the act of the corporation.** A wrongful act by the governing body of a miu^icipality, or any officer or con- tractor, which is wholly outside the charter powers of the corporation, resmting in private injury, is not the tort of the municipality, but of the persons committing it.'° The act of the municipality, as the agency of the state for the perform- ance of governmental functions, js not, in law, the act of the corporation, but of the state ; ** and therefore, unless the sov- ereign condescends to be sued, no action will lie either against it or its agent.* ^ In fine, two elements are indispensable to 31 Ante, § 123 ; Everson v. City of Syracuse, 100 N. Y. 577, 3 N. E. 784; City of Corsicana v. White, 57 Tex. 382; Black v. City of Colum- bia, 19 S. C. 412, 45 Am. Rep. 785 ; Perley v. Inhabitants of George- town, 7 Gray (Mass.) 464; Barney v. City of Lowell, 98 Mass. 571; Dooley v. Town of Sullivan, 112 Ind. 451, 14 N. E. 566, 2 Am. St. Rep. 209 ; Bryant v. City of St. Paul, 33 Minn. 289, 23 N. W. 220, 53 Am. Rep. 31; Board of Com'rs of Montgomery Co. v. FuUen, 111 Ind. 410, 12 N. E. 298. 35 Ante, I 124; City of Albany v. CunlifC, 2 N. Y. 165; Morrison v. City of Lawrence, 98 Mass. 219; Campbell's Adm'x v. City Council of Montgomery, 53 Ala. 527, 25 Am. Rep. 656 ; Conelly v. City of Nashville, 100 Tenn. 262, 46 S. W. 565. 36 Russell V. City of Tacoma, 8 Wash. 156, 35 Pac. 605, 40 Am. St. Rep. 895 ; City of Richmond v. Long's Adm'rs, 17 Grat. (Va.) 375, 94 Am. Dec. 461 ; Ham v. Mayor, etc., of City of New York, 70 N. Y. 459 ; Snider v. City of St. Paul, 51 Minn. 466, 53 N. W. 763, 18 L. R. A. 151; Wlheeler v. City of Cincinnati, 19 Ohio St. 19, 2 Am. Rep. 368; Mead V. City of New Haven, 40 Conn.' 72, 16 Am. Rep. 14 ; Haflford v. City of New Bedford, 16 Gray (Mass.) 297 ; Irvine v. City of Chattanooga, 101 Tenn. 291, 47 S. W. 419. 37 Hayes v. City of Oshkosh, 33 Wis. 314, 14 Am. Rep. 760; Max- 472 ACTIONS (Ch. 15 such actions: (1) The wrong must be at the hands of the cor- poration; (2) it must be a tort— i^ e., an actionable injury. MANDAMUS 156. The writ of mandamus is granted by the courts against a municipality and its officers for refusing or cul- pably neglecting to perform any corporate or of- ficial duty, ministerial in kind, the injury resulting from which may not be adequately redressed by any other legal remedy. Incidentally it has hitherto appeared that the writ of man- damus is used against a municipality as a substitute for the writ of fieri facias; *' but this is not the only, nor, indeed, the most frequent, occasion for the use of this extraordinary pro- cess against a municipality. It is no longer generally consid- ered in America a prerogative writ, but is a common method of redressing private as well as public injuries suffered, from the misconduct of state or municipal officers in neglecting or refusing to perform plain ministerial duties.^' It has been employed in the United States not only to com- milian v. Mayor, etc., of City of New York, 62 N. Y. 160, 20 Am. Rep. 468; Welsh v. Village of Rutland, 56 Vt. 228, 48 Am. Rep. 762; 'Dar- gan V. Mayor, etc., of City of Mobile, 31 Ala. 469, 70 Am. Dec. 505; Bowditch V. Boston, 101 U. S. 16, 25 L. Ed. 980 ; Elliott v. City of Philadelphia, 75 Pa. 347, 15 Am. Rep. 591. . 88 Ante, § 153 (execution). 8 8 United States ex rel. West v. Hitchcock, 19 App. D. C. (TJ. S.> 333 ; Kentucky v. Dennison, 24 How. (U. S.) 66, 16 L. Ed. 717; Tray- nor V. Beckham, 74 S. W. 1105, 25 Ky. Law Rep. 283; Id., 76 S. W. 844, 25 Ky. Law Bep, 981. Mandamus will lie to compel the performance of purely municipal duties incumbent on an officer by virtue of his office, and concerning which he has no discretionary powers. Warmolts v. Keegaii, 69 N. J. Law, 186, 54 Atl. 813; Brooklyn Teachers' Ass'n v. Board of Edu- cation of City of New York, 85 App. Div. 47, 83 N. Y. Supp. 1. Where the duty of the officer involves discretion or judgment, a writ of mandamus will issue to compel him to act and decide, but not to direct in what way or in whose favor he shall decide. Kim- § 156) MANDAMUS 473 pel the induction of a commissioned officer into his office/' and to compel the performance of a municipal duty,*^ but also against the corporation and its delinquent officer to compel them to correct an erroneous assessment for taxation ; *^ to audit a municipal claim ; *' to issue a municipal warrant to pay the same; ** to satisfy a judgment; *" to pay for property berlin v. Commission to Five Civilized Tribes, 104 Fed. 653, 44 C. C. A. 109; Elliott V. City of Detroit, 121 Mich. 611, 84 N. W. 820. See Epx V. Stepney, 71 Law J. K. B. 238, [1902] 1 K. B. 317. But see Town of Cicero v. People, 105 111. App. 406. io State ex rel. Atherton v. Sherwood, 15 Minn. 221 (Gil. 172), 2 Am. Rep. 116; State v. Smith (Mo.) 15 S. W. 614; Williams v. Com- mon Council of City of Rahway, 33 N. J. Law, 111. 41 People ex rel. Burke v. Mayor, etc., of Bloomington, 63 111. 207; Webster v. City of Chicago, 83 111. 458. *2 People ex rel. Lawyer v. Board of Sup'rs of Schoharie County, 39 Misc. Rep. 162, 79 N. Y. Supp. 145; People ex rel. Lucey v. Mol- loy, 161 N. Y. 621, 55 N. B. 1099; People ex rel. Nostrand v. Wilson, 119 N. Y. 515, 23 N. E. 1064. 48 People ex rel. Smart v. Board of Sup'rs, 66 App. Div. 66, 72 N. Y. Supp. 568; People ex rel. Goodwin v. Color, 48 App. Div. 492, 62 N. Y. Supp. 964. Where a board of county commissioners disallowed a claim for services rendered the county on the advice of the county attorney that the claim was illegal, and the board had no power to audit or ^Uow any of its items, mandamus would lie to compel the board to audit the claim on its merits if there -was any item in the claim which the board had power to allow. Chipman v. Wayne County Auditors, 127 Mich. 490, 86 N. WI. 1024. Mandamus will. lie to com- pel commissioners to act on a claim when they have refused to- act, but not to direct their action. Robey v. County Com'rs of Prince George's County, 92 Md, 150, 48 Atl. 48. See People ex rel. Rhodes V. Mole, 85 App. Div. 33, 82 N. Y. Supp. 747. 44 The owner of a city warrant may by mandamus compel its payment, where it is legally issued by the city, and there are suffi- cient funds in the treasury. Wyker v. Francis, 120 Ala. 509, 24 South. 895; Wright v. Kinney, 123 N. C. 618, 31 S. B. 874. But the Supreme Court, in its discretion, may revise a mandamus on a city officer to sign a warrant to pay a claim when it appears that the relator should establish his right in a proceeding in which the city might present a defense. Padavano v. Fagan, 66 N. J. Law, 167, 48 Atl. 998. 45 City of Helena v. United States, 104 Fed. 113, 43 C. C. A. 429 ; Marion County v. Coler, 75 Fed. 352, 21 C. C. A. 392. Mandamus will lie to compel a city to make an authorized tax 474 ACTIONS (Ch. 15 taken by eminent domain ; *' to pay a specific sum of money according to a particular promise to satisfy bonds or matured coupons;*' to issue bonds to pay for a public improvement completed or in progress;*' to include certain items in a 'budget;*' to deliver office and records thereof to an of- ficer; °'' to apportion revenues and appropriate particular funds as required by law; °^ to observe and enforce civil serv- levy to pay a debt against it. City of Sherman v. Langham (TexJ 40 S. W. 140, 39 h. n. A. 258 ; STEVENS v. MILLER, 3 Kan. App. 192, 43 Pac. 439, Cooley", Cas. Mun. Corp. 344. But where a city has already levied a tax to the limit allowed by law, the proceeds of which have been used for necessary city ex- penses, it will not be compelled to levy an additional tax to pay out- standing city warrants. Portland Sav. Bank v. City of Montesano, 14 Wash. 570, 45 Pac. 158; City of Sherman v. Smith, 12 Tex. Civ. App. 580, 35 S. W. 294. *' Rudisill V. State ex rel. Bird, 40 Ind. 485; Dodge v. Essex Coun- ty Com'rs, 3 Mete. (Mass.) 380. 4' Fleming v. Dyer (Ky.) 47 S. W. 444. *8 People V. Batchellor, 53 N. T. 128, 13 Am. Rep. 480; Miller v. Bridgewater Tp. Committee, 24 N. J. Law, 54;. Higgins v. City of Chicago, 18 111. 276. If the common council of a city neglect to proceed to open a street after the award of damages to the owners on the land's taken for the street has been made and confirmed by lapse of time in which to make an appeal, mandamus will lie to compel. them to proceed. Peo- ple V. Common Council of Syracuse, 20 How. Prac. (N. T.) 491. 4» Barrett v. City of New Orleans, 33 La. Ann. 542. A writ of mandamus will not be granted to compel the mayor of a city to include in the annual budget an appropriation to pay re- lator's judgment against the city, when the budget has already been made, and the taxes levied before the time the writ could' issue. State ex rel. Foy v. City of New Orleans, 49 La. Ann. 946, 22 South. 370. 60 Stevens v. Carter, 27 Or. 553, 40 Pac. 1074, 31 L. R. A. 34^ ; Peo- ple ex rel. Brewster v. KildufC, 15 111. 492, 60 Am. Dee. 769. But when an office is filled by an actual incumbent exercising its functions de facto and under color of right, mandamus will not lie to compel him to turn ovep the books of the office to another, the question of title to the office being involved; quo warranto being the proper remedy. Ashwell v. Bullock, 122 Mich. 620, 81 N. W. 577; Pipper V. Carpenter, 122 Mich. 688, 81 N. W. 962. 51 Ingerman v. State ex rel. Conroy, 128 Ind. 225, 27 N. E. 499; City of New Orleans v. United States, 49 Fed. 40, 1 C. C. A. 148; Hunter v. Mobley, 26 S. C. 192, 1 S. E. 670; State ex rel. School Dist. No. 11 V. White, 29 Neb. 288, 45 N. W. 631. § 156) MANDAMUS 475 ice regulations ; "' and generally to do and perform any cor- porate or official duty ministerial in its nature, plainly required by law, and for which no other adequate legal remedy is pro- vided. ^^ Refused When Mandamus is not granted to compel the performance of any legislative or judicial function,"* or the discharge of any dis- cretionary duty.^* Tiie tremendous power of this extraor-. dinary writ is only to be invoked and exercised by the courts when there is a concurrence of three essential conditions: (1) The municipal duty must be plain and ministerial ; °* (2) the right of the relator must be clear and controlling; "^ (3) there 52 People ex rel. Boyd v. Hertle, 46 App. Div. 505, 60 N. T. Supp. 23. 53 Territory ex rel. Crosby v. Crum, 13 Okl. 9, 73 Pac. 297; State ex rel. Higdon v. Jelks, 138 Ala. 115, 35 South. 60. 5* State ex rel. New Orleans & C. R. Light & Power Co. v. St. Paul, 110 La. 722, 34 South. 750. A court of equity has no power to compel a city to erect a sewer. Horton v. Mayor, etc., of City of Nashville, 72 Tenn. (4 Lea) 39, 40 Am. Rep. 1; McCoy v. State, 2 Marv. (Del.) 543, 36 Atl. 81; Patterson v. Taylor, 98 Ga. 646, 25 S. E. 771; Illinois State Board of Health v. People, 102 111. App. 614. Mandamus will not lie unless there is a palpable abuse of discretion. People ex rel. Traders' Ins. Co. of New York v. Van Cleave, 183 111. 330, 55 N. E. 698, 47 L. R. A. 795 ; Commonwealth v. Park, 10 Phila. (Pa.) 445; People ex rel. Clapp v. Listman, 84 App. Div. 633, 82 N. Y. Supp. 784. 5 5 The Supreme Court will not attempt by mandamus to control the discretionary powers of the district court. State ex rel. Thomp- son V. District Court for Johnson County, 2 Neb. (Unof.) 385, 96 N. W. 121 ; United States ex rel. Holzendorf v. Hay, 20 App. D. C. 576, But where a public officer is guilty of so gross an abuse of discre- tionary power or evasion of duty as to amount to a refusal to per- form the act enjoined, or to act at all in contemplation of law, man- damus will afford a remedy. People ex rel. Green v. Board of Com'rs of Cook County, 176 111. 576, 52 N. E. 334. 6s state ex rel. Higdon v. Jelks, supra; Traynor v. Beckham, 25 Ky. Law Rep. 283, 74 S. W. 1105. When the duties of a public officer are merely ministerial, man- damus is the proper remedy to compel a performance. People ex rel. Traders' Ins. Co. of New York v. Van Cleave, supra; Orman v. Peo- ple (Colo.) 71 Pac. 430. 67 Phoenix Iron Co. v. Commonwealth, 113 Pa. 563, 6 Atl. 75; State 476 ACTIONS (Ch. 15 must be lack of any other adequate legal remedy." More- over, it is to be noted that while the writ may be issued upon the relation of a private person for the enforcement of his per- sonal rights, when the interest of the public is to be subserved,, or the right of the state to be enforced, the judicial machinery can be set in motion by the Attorney General only.°* Under these well-recognized and wholesome regulations the courts have refused mandamus to compel the- issuance of a discre- tionary license by a mayor; °° the approval of an official bond; °^ the enforcement of a private contract; "^ the levy of a tax to satisfy a collusive judgment upon ultra vires bonds; "^ the raising of revenue for an unauthorized purpose ; ** the ex rel. LIghfoot v. McCabe, 74 Wis. 481, 43 N. "W. 322; People ex rel. . Hurd V. Johnson, 100 111. 537, 39 Am. Bep. 63. 5 8 Councils of Reading v. Commonwealth, 11 Pa. 196, 51 Am. Dec. 534; People ex rel. Smith v. Olds, 3 Cal. 167, 58 Am. Dec. 398 ; Peo- ple V. President, etc., of Village of Brooklyn, 1 Wend. (N. Y.) 318, 19 Am. Dec. 502. 59 People ex rel. Russell v. Inspectors, etc., of State Prison, 4 Mich. 187; In re Wellington, 16 Pick. (Mass.) 87, 26 Am. Dec. 631; Scripture v. Burns, 59 Iowa, 70, 12 N. W. 760. ooDeehan v. Johnson, 141 Mass. 23, 6 N. E. 240; People ex rel. United Auctioneers of New York v. Scully, 23 Misc. Bep. 732, 53 N. Y. Supp. 125. But where an applicant has complied with all legal requirements^ and the oflScer, without reason, refuses to issue the license, he may be compelled by mandamus. City of St. Louis v. Weitzel, 130 Mo. 600, 31 S. W. 1045; People v. Perry, 13 Barb. (N. Y.) 206; Dean v. Campbell (Tex.) 59 S. W. 294; Bankers' Life Ins. Co. v. Howland^ 73 Vt. 1, 48 Atl. 435, 57 L. R. A. 374. 81 Board of Com'rs of Knox County v. Johnson, 124 Ind. 145, 24 N. E. 148, 7 L. B. A. 684, 19 Am. St. Rep. 88; State ex rel. Moulin v. City of New Orleans, 49 La. Ann. 1322, 22 South. 354. 62 Parrott v. City of Bridgeport, 44 Conn. 180, 26 Am. Rep. 439. 63 Union Bank of Richmond v. Commissioners of Town of Oxford, 119 N. C. 214, 25 S. E. 966, 34 L. B. A, 487. 64 Where the statute authorized a county to subscribe for stock in a railroad company, and issue its bonds therefor, limiting its- power to provide for the payment of them to an annual special tax of a certain percentage, and other laws authorized the levy of a tax for general purposes upon the assessed value of the taxable propertj^- of the county, it was held that in the absence of further legislation. § 156) MANDAMUS 477 signing of bonds in escrow issued under an unconstitutional statute;®" the removal of electric poles from sidewalks;"' the revocation of municipal permission for placing them there; *' the delivery of a bank check; *' the exclusion of ter- ritory from the municipal boundaries;'" the removal of a picture from the rogues' gallery; ^° the closing of a contract with an alleged lowest bidder or other person ; ^^ or the per- formance of any other municipal or official duty, legislative, judicial, or discretionary, and especially where the relator's right is not plain and controlling, or he has other remedy at law." mandamus would not lie to compel the levy of a tax. United States ex rel. Huldekoper v. County of Macon, 99 U. S. 582, 25 L. Ed. 331. 85 Mandamus lies to compel a party to do that which it is his duty to do; but it confers no new authority, and the party to be compelled must have authority to do the act Commissioners of Brownsville Taxing Dist v. Loague (1888) 129 U. S. 493, 9 Sup. Ct. 327, 32 L. Ed. 780. «6 Commonwealth ex rel. Dist. Atty. v. Borough of West Chester, 9 Pa. Co. Cfc R. 542. Since the duties of municipal officers .authorized to award con- tracts are not ministerial, but such officers are entrusted with dis- cretionary authority, mandamus will not lie to compel them to change their decision on such question in the absence of fraud or collusion. Potts v. City of Philadelphia, 8 Pa. Dist. R. 728. 8' Commonwealth ex rel. Dist. Atty. v. Borough of West Chester, supra ; Dechert v. Commonwealth, 113 Pa. 229, 6 Atl. 229. 88 Anderson v. City of Detroit, 124 Mich. 471, 83 N. W. 145. 8 9 Young V. Carey, 80 111. App. 601. But see Steele v. Willis, 23 Ky. Law Rep. 826, 64 S. W. 417. ■"> People ex rel. Joyce v. York, 27 Misc. Rep. 658, 59 N. Y. Supp. 418. 71 Talbot Paving Co. v. City of Detroit, 109 Mich. 657, 67 N. W. 979, 63 Am. St. Rep. 604. The discretion given by a city charter to the common council to let public contracts to the lowest bidder cannot be controlled by man- damus. Brown v. City of Houston (Tex. Civ. App.) 48 S. W. 760. 72 Cannon v. Board of Canvassers of Providence, 24 R. I. 473, 53 Atl. 637; Edward C. Jones Co. v. Town of Guttenberg, 66 N. J. Law, 659, 51 Atl. 274 ; Jones v. Tonda, 85 App. Div. 265, 83 N. Y. Supp. 1012; fetorer Post, No. 1, G. A. R. v. Page, 70 N. H. 280, 47 Atl. 264. A writ of mandamus will only issue, requiring the officer to do something therein specified. Hoover v. Reap, 10 Kulp (Pa.) 59, 14 478 ACTIONS (Ch. 15 QUO WARRANTO 157. A quo warranto proceeding, either common-law or statutory, may be instituted against a municipality for usurping a public franchise, or against any person for usurping a municipal office. The key to this writ is found in the literal translation of its name : "By what authority ?" The writ issued in the name of the king to the person or corporation alleged as usiurping a franchise or an office was a prerogative writ at common law, demanding of the defendant to show by what warrant or au- thority the holding of the office or exercise of the franchise could be justified ; and upon failure of the defendant to show a proper legal warrant judgment of ouster followed.'* The common-law writ is not in use in America; '* but the princi- ples controlling it are recognized as part of the common law, and control the proceedings on information in the nature of quo warranto prevailing ifl the United States, either under statute or by judicial recognition.' ° It may be used against a municipality upon information by the Attorney General for the purpose of testing certain power exercised by it, or the York Leg. Rep. 62 ; United States ex rel. Mutual District Messenger Co. V. Wight, 15 App. D. C. 463. But where there is a reasonable uncertainty ol the right of an action at law, mandamus will lie. People ex rel. Pennell v. Treanor, 15 App. Dlv. 508, 44 N. Y. Supp. 528. Ts It originally issued only at the instance of the sovereign against any person who usurped any franchises or liberty against the king, or for misuser or nonuser of franchises or privileges granted by him. State ex rel. Wilcox v. Curtis, 35 Conn. 374, 95 Am. Dec. 263 ; Com- monwealth V. Murray, 11 Serg. & R. (Pa.) 73, 14 Am. Dec. 614. li Dane v. Derby, 54 Me. 95, 89 Am. Dec. 722; Commonwealth ex rel. McLaughlin v. Cluley, 56 Pa. 270, 94 Am. Dec. 75. 7 5 State ex rel. Attorney General v. Portage City Water Co., 107 Wis. 441, 83 N. W. 697; State v. Harris, 3 Ark. 570, 36 Am. Dee. 460; State V. Evans, 3 Ark. 585, 36 Am. Dec. 468; People v. Pease, 27 N. Y. 45, 84 Am. Dec. 242 ; Commonwealth ex rel. Clements v. Arrison, § 157) QUO WARKANTO 479 validity of its charter.^" The proceeding may likewise be in- stituted on private information against &■ person claiming a municipal office for the purpose of testing his title thereto." A clear distinction in practice between mandamus and quo warranto for this purpose is shown in the rule that mandamus will not lie if there be color of title in the alleged usurper, for under this writ questions of title cannot be tried ; neither can an incumbent be expelled from office; ^* whereas in quo war- ranto the question of title to the office is open for trial and decision, and the incumbent may be ousted from office.'* But a p'rivate person cannot institute a proceeding in quo warranto to disturb a corporation, except under the approval of the attorney general; and even then not unless he have an inter- est in the subject-matter, and has not consented to the usurpa- 15 Serg. & R. (Pa.) 127, 16 Am. Dec. 531; People ex rel. Speed v. H&rtwell, 12 Mich. 508, 86 Am. Dec. 70. 76 Moore v. Seymour, 69 N. J. Law, 606, 55 Atl. 91; OSBORNE v. VILLAGE OF OAKLAND, 49 Neb. 340, 68 N. W. 506^ Cooley, Cas. Mun. Corp. 347. Quo warranto proceedings to oust a municipal corporation from the exercise of a franchise which it usurps must be brought against the corporation itself, and not against its officers. State ex inf. Crow V. Fleming, 158 Mo. 558, 59 S. W. 118 ; School Dist. No. 4 v. Smith, 90 Mo. App. 215; State ex rel. Jackson v. Mansfield, 99 Mo. App. 146, 72 S. W. 471 ; State ex rel. Walker v. McLean County, 11 N. D. 356, 92 N. W. 385. 7T Marshall t. Board of Managers of Illinois State Reformatory, 103 111. App. 65 ; Id., 201 111. 9, 66 N. E. 314 ; Ptacek v. People ex rel. Deneen, 94 111. App. 571 ; Id., 194 111. 125, 62 N. E. 530 ; Gilbert v. Craddock, 67 Kan. 346, 72 Pac. 869 ; Ellis v. Greaves, 82 Miss. 36, .34 South. 81 ; Miller v. Same^ Id. ; State ex rel. Weinsheim v. Leischer, 117 Wis. 475, 94 N. W. 299. ' '8 Maxwell v. Board of Fire Com'rs of City and County of San Francisco, 139 Cal. 229, 72 Pac. 996; Ashwell v. Bullock, 122 Mich. 620, 81 N. W. 677; Pipper v. Carpenter, 122 Mich. 688, 81 N. W. 962 ; Lyon v. Board of Com'rs of Granville County, 120 N. C. 237, 26 S. B. 929. 79Deemar v.-Boyne, 103 111. App. 464; Casey v. Chase, 64 N. J. 207, 44 Atl. 872; Roberson v. City of Bayonne, 58 N. J. Law, 326, 33 Atl. 734 ; Clayton v. Board of Chosen Freeholders of Hudson County, 60 N. J. Law, 364, 37 Atl. 725; Simon v. City of Hoboken, 52 N. J. Law, 367, 19 Atl. 259 ; Commonwealth ex rel. v. Connell, 5 Lack. Leg. 480 ACTIONS (Ch, 13 tion.*' Generalizations upon this writ are hazardous. The safe path for its use can be found only by consulting the local statutes and . decisions upon this proceeding.'^ CERTIORARI 158. The corporate acts and proceedings of a municipality may be inquired into by certiorari to determine ju- risdiction and validity. The common-law writ of certiorari cannot be employed in municipal affairs as a substitute for an appeal/^ nor for the N. (Pa.) 332; State ex rel. Nelson v. Mott, 111 Wis. 19, 86 N. W. 569 ; State ex rel. Kennedy v. Broatch, 68 Neb. 68T, 94 N. W. 1016, 110 Am. St. Rep. 477; State ex rel. Figley v. Conser, 24 Ohio Oir. Ct R. 270; State ex rel. Keifer v. Wheatley, 160 Ind. 183, 66 N. B. 684 ; Lane v. Otis, 68 N. J. Law, 656, 54 Atl. 442 ; Nolen v. State ex rel. Moore, 118 Ala. 154, 24 South. 251 ; Gray T. State ex rel. Lang- ham, 19 Tex. Civ. App. 521, 49 S. W. 699. 80 Duffy v.^State, 60 Neb. 812, 84 N. W. 264; State ex rel. Warner V. Agee, 105 Tenn. 588, 59 S. W. 340. 81 In some states the courts have given judicial recognition to the modern substitute for the prerogative writ of the common law, and by decision and rule of court conformed the common-law procedure to the local statutes and practice; while in others the legislatures have by statute effected similar results. Each state, however, has its own peculiar method of proceeding in the nature of quo war- ranto, which is controlling in its courts. 8 2 Eels V. Bailie, 118 Iowa, 519, 92 N. W. 668 ; State ex rel. Town of Jennings ,v. Miller, 109 La. 704, 33 South. 739; State ex rel. Norris Safe' & Lock Co. v. Superior Court of King County, 30 Wash. 177, 70 Pacr 256; State ex rel. Rudy v. Tomkies, 49 La. Ann. 1162, 22 South. 336; Sowles v. Bailey, 69 Vt. 277, 37 Atl. 751 ; Lawler v. Lyness, 112 Ala. 386, 20 South. 574; State ex rel. Alderson v. Moehlenkamp, 133 Mo. 134, 34 S. W. 468; Jackson v. People, 9 Mich. Ill, 77 Am. Dec. 491. Comtaon-law certiorari will not issue where the party has an adequate remedy by appeal. State ex rel. Chicago & N. W. R. Co. V. Oshkosh, A. & B. W. R. Co., 100 Wis. 538, 77 N. -W. 193 ; Oyster V. Bank, 107 Iowa, 39, 77 N. W. 523. See, also. Ex parte Howard- Harrison Iron Co., 130 Ala. 185, 30 South. 400; Walker v. Want- land, 2 Ind. T. 32, 47 S. W. 354 ; State ex rel. Bromade v. Judge of Division C, Civil District Court, 104 La. 103, 28 South, 839. § 158) CEETIOKAEI 481 correction of errors of fact.*^ It is the proper writ for de- termining questions of jurisdiction,** and fatal errors of law in proceeding.*' To determine either of these questions it may be sued out against a municipal corporation and its com- mon council, or any other board or official exercising judicial functions, where no appeal or writ of error will lie.*® Orig- inally, this writ was confined to matters of judicial decision by inferior tribunals;*^ but the tendency of modern decision, and especially in the Code states, is to employ it for the pur- pose of revising obvious acts of injustice in municipal corpora- tions, even in matters which are apparently ministerial.** It 88 Somers v. Wescoat, 66 N. J. Law, 551, 49 Atl. 462 ; Nobles v. Piollet, 16 Pa. Super. Ct. 386; Appeal of Welsh, 22 Pa. Super. Ct. 392; Henkle v. Bussey, 50 La. Ann. 1135, 24 South. 240; Jackson v. People, 9 Mich. Ill, 77 Am. Dee. 491; Morse, Williams & Co. v. Baake, 68 N. J. Law, 591, 53 Atl. 693 ; Wilson v. Mayor, etc., of City of Hudson, 32 N. J. Law, 365. 8* State ex rel. Boston & M. Consol. Copper & Silver Min. Co. v. District Court of Second Judicial Dist, 27 Mont. 441, 71 Pac. 602, 94 Am. St. Eep. 831; Nordyke & Marmon Co. v. McConkey, 7 Idaho, 562, 64 Pac. 893; Bardes t. Hutchinson, 113 Iowa, 610, 85 N. W. 797; State ex rel. Gaster v. Whitcher, 117 Wis. 668, 94 N. W. 7S7, 98 Am. St. Rep. 968; Sweeny v. Mayhew, 6 Idaho, 455, 56 Pac. 85; Butter- field V. Treichler, 113 Iowa, 328, 85 N. W. 19. See State ex rel. At- torney General v. GiU, 137 Mo. 627, 39 S. W. 81; Quinchard v. Board of Trustees of Alameda, 113 Cal. 664, 45 Pac. 856 ; Walls v. City of Jersey City, 55 N. J. Law, 511, 26 Atl. 828. 8 5 State ex rel. Beise v. District Court of Hennepin County (In re Minnetonka Dam) 83 Minn. 464, 86 N. W. 455; Shoup v. Shoup, 205 Pa. 22, 54 Atl. 476; Home Savings & Trust Co. v. District Court of Polk County, 121 Iowa, 1, 95 N. W. 522 ; McKee v. Same, Id. 86 People ex rel. Mershon v. Shaw, 34 App. Div. 61, 54 N. Y. Supp. 218; Morse v. Norfolk County, 170 Mass. 555, 49 N. E. 925; Devlin v. Dalton, 171 Mass. 338, 50 N. E. 632, 41 L. R. A. 379; People ex rel. Babylon R. Co. v. Board of Railroad Oom'rs of State of New York, 32 App. Div. 179, 52 N. Y. Supp. 908. Certiorari will lie to review the decision of a board of commis- sioners consenting to the discontinuance of a station, such consent being a judicial act. People ex rel. Loughran v. Board of Railroad Com'rs, 158 N. Y. 421, 53 N. E. 163. 87 Meads v. Belt Copper Mines, 125 Mich. 456, 84 N. W. 615. 8 8 State ex rel. Crow v. Harrison, 141 Mo. 12, 41 S. W. 971, 43 S. W. 867. it does not lie to annul proceedings of a board before it has Cool.Mttn.Cokp. — 31 482 ACTIONS (Ch. 15 has accordingly been used with respect to proceedings in lay- ing out, altering, or closing a public street,*® and in regard to local assessments and other similar proceedings."" COMPLAINANT IN CHANCERY 159. A municipality may also resort to the court of chan- cery for the protection or enforcement of any equi- table right or title or the use of any equitable rem- edy appropriate for its relief. Equity as well as law lends its aid to municipal corporations in cases "wherein the law, by reason of its universality, is de- ficient"; and so in America the courts of chancery in those states where such tribunals survive, and, where they have succumbed to modernization, the courts clothed with equity jurisdiction will entertain the complaint of any municipality, and give it equitable remedy, wherever its equitable titles or rights have been denied, or it has suffered wrong for which the law affords no appropriate or sufficient remedy."^ If a municipality is trustee or cestui que trust in a trust estate; made the final order in the matter. Gauld v. Board of Sup'rs of City anij County of San Francisco, 122 Cal. 18, 54 Pac. 272. But see IN RE WILSON, 32 Minn. 145, 19 N. W. 723, Cooley Cas. Mun. Corp. 349. The action of a municipal board of health in determining a nui- sance and ordering its abatement cannot be reviewed on certiorari. Hartman v. City of Wilmington, 1 Marv. (Del.) 215, 41 Atl. 74. 8 9Dwight V. City Council of Springfield, 4 Gray (Mass.) 107. See Fredericks v. HofCmeister, 62 N. J. Law, 505, 41 Atl. 722 ; People ex rel. Mershon v. Shaw,' 34 App. Dlv. 61, '54 N. Y. Supp. 218. »o Wilson V. City of Seattle, 2 Wash. St. 543, 27 Pac. 474; People V. Cheritree, 4 Thomp. & 0- (N. Y.) 289; People ex rel. Osborne V. Gilon, 56 Hun, 641, 9 N. Y. Supp. 212 ; Moore v. Perry, 119 Iowa, 423, 93 N. W. 510. 91 Eaton, Eq. pp. 16-18; FoUey v. City of Passaic, 26 N. J. Eq. 216; State v. Mayor, etc., of City of Jergey City, 30 N. J. Law, 148. Cf. In re Sawyer, 124 U. S. 200, 8 Sup. Ct. 4S2, 31 L. Ed. 402. § 159) COMPLAINANT IN CHANCERY 4:83 if it hold a lien on or an interest in property, by mortgage or otherwise; if constructive or resulting trust may be implied in its favor ; if it have suffered or is likely to suffer loss from accident, mistake, or fraud ; if it be entitled to the specific per- formance, reformation, or rescission of a contract ; if it may demand of others exoneration, subrogation, marshaling, ac- counting, contribution, or needs the protecting aid of the puis- sant writ of injunction, it may go into equity and claim re- lief upon the same terms and conditions as any other corpo- ration or person.*'' Instances It has accordingly been held that the corporation may have relief in equity against illegal, unauthorized, or fraudulent acts of its officers; "^ that it may enjoin a person from car- rying on a licensed business until he has paid the license fee; '* that equity will enforce a tax lien in favor of a municipality ; '* that it will reform municipal bonds in the hands of holders with notice ; '" and that it will control a municipality in the execution of a trust committed to it for charitable purposes,*^ 9 2 Girara v. City of Philadelphia, 7 Wall. (U. S.) 1, 19'L. Ed. 53 (trust); Town of Essex v. Day, 52 Conn. 483, 1 Atl. 620 (bonds); Towie V. Nesmith,. 69 N. H. 212, 42 Atl. 900; Handley v. Palmer (C. C.) 91 Fed. 948; Lackland v. Walker, 151 Mo. 210, 52 S. W. 414; Chambers v. City of St. Louis, 29 Mo. 543 (trust) ; Mclnerny v. Re^d, 23 Iowa, 410 (lien) ; City of New Haven v. Fair Haven & W. R. Co., 38 Conn. 422, 9 Am. Rep. 399 (lien) ; Bryant's Lessee v. McCandless, 7 Ohio, 135, pt. 2. »s RusseU V. Tate, 52 Ark. 541, 13 S. W. 130, 7 L. R. A. 180, 20 Am. St. Rep. 193; Roper v. McWhorter, 77 Va. 214; Payne v. Eng* lish, 79 Cal. 540, 21 Pac. 952; Clapp v. City of Spokane (C. C.) 53 Fed. 515. 84 City of New Orleans v. Becker, 31 La. Ann. 644. ,95 Mclnerny v. Reed* 23 Iowa, 410; City of New Haven v. Pair Haven & W. R. Co., 38 Conn. 422, 9 Am. Rep. 399. 96 Town of Essex v. Day, 52 Conn. 483, 1 Atl. 620. 97 In Vidal v. Girard's Ex'rs (1844) 2 How. (U. S.) 127, 11 L. Ed. 205, the court said: "Where a corporation [municipal] has this pow- er [to take real and personal estate by deed and also by devise], it may also take and hold property in trust in the same manner and to the same extent that a private person may do. If the trust be re- 484 ACTIONS (Ch. 15 and may, if rendered necessary by the dissolution of a munici- pal corporation acting as such trustee, appoint its successor to that position."* DEFENDANT IN CHANCERY 160. Chancery will also grant equitable relief against a mu- nicipality whenever there is no adequate and un- embarrassed remedy at law for the injury com- plained of; or to prevent a multiplicity of suits. When neither the corn;mon-law actions nor the extraordi- nary remedies treated in this chapter can furnish adequate redress for wrong done or threatened by a municipality, the injured party may confidently appeal to equity for relief. "Generally speaking, equity will interfere in favor of or against municipal corporations on the same principles by which it is guided in cases between other suitors. For the reason that these corporations are intrusted for defined ob- jects, or for public purposes, with large powers, the courts have evinced some anxiety not to allow theii; authority to be used to oppress the inhabitants within their jurisdiction ; and it may safely be affirmed that there is a remedy, according to the nature of the case, by certiorari, mandamus, quo warranto, prohibition, appeal, indictment, civil action, or iti equity, for all injurious abuses of power and all invasions of the legal rights of persons subjected to municipal control or affected by pugnant to or Inconsistent with the proper purpose for which the cor- poration was created, it may not be compellable to execute it, but the trust (if otherwise unexceptionable) will not be void, and a court of equity will appoint a new trustee to enforce and perfect the ob- jects of the trust." »8 Neither the identity of a municipal corporation nor its right to hold property devised to it is destroyed by a change of name or an enlargement of its area. Glrard v. Philadelphia, 7 Wall, (U. S.) 1, 19 L. Ed. 53. § 160) DEFENDANT IN CHANCEKY 485 municipal action." °° The grounds of equitable jurisdiction have been adverted to in the preceding section, and upon any of them a creditor, taxpayer, contractor, or other person suf- fering an injury from a municipality relievable in equity may have the aid of its process and jurisprudence in the attain- ment of justice.^ Dillon's Rules After an able ana exhaustive consideration of the cases ad- judged in the federal and state courts upon the right of tax- payers of a municipality to resort to a court of equity to pre- vent an illegal disposition of moneys of the corporation, or the illegal creation of a debt,'' Judge Dillon, with his wonted acu- men, sets forth the following conclusions upon equitable juris- diction in such cases : ^ "(1) The proper parties may resort to equity, and equity will, in the absence of restrictive legislation, entertain juris- diction of their suit against municipal corporations and their officers when these are acting ultra vires, or assuming or ex- ercising a power over the property of the citizen, or over cor- porate property or funds, which the law does not confer upon them, and where such acts affect injuriously the property owner or the taxable inhabitant.* But if in these cases the »» 2 Dill. Mun. Corp. § 908. 1 One or more of the taxpayers of a city may sue to enjoin ultra vires of the city which may injure them as taxpayers. City of . Alpena v. Alpena Circuit Judge, 97 Mich. 550, 56 N. W. 941. But a bill in chancery against a municipal corporation to prevent a usurpation of power by the corporate authorities, or the violation of a duty imposed by law, may be filed by property holders or tax- payers. New Orleans, M. & C. R. Co. v. Dunn, 51 Ala. 128. 2 The Liberty Bell (C. C.) 23 Fed. 843; City of New London v. Brainard, 22 Conn. 552 ; City of Rock Island v. Huesing, 25 111. App, 600; Mitchell v. Wiles, 59 Ind. 364. a 4 Dill. Mun. Corp. (5th Ed.) § 1587. - Mayor, etc., of Baltimore v. Gill, 31 Md. 375; City of Valparaiso V. Gardner, 97 Ind. 1, 49 Am. Rep. 416; Austin v. Coggeshall, 12 R. I. 329, 34 Am. Rep. 648 ; Bissell v. City of Kankakee, 64 111. 249, 21 Am. Rep. 554. 486 ACTIONS (Ch. 15 property owners or the taxable inhabitants can have full and adequate remedy at law, equity will not interfere, but leave them to their legal remedy/ V "(2) That, in the absence of speciar controlling legislative provision, the proper' public officer of the commonwealth which created the corporation and prescribed and limited its powers may, in his own name, or in the name of the state on behalf of residents and voters of the municipality, exercise the authority, in proper cases, of filing an information or bill in equity to prevent the misuse of corporate powers, or to set aside or correct illegal corporate acts.° "(3) That the existence of such a power in the state or its proper public law officer is not inconsistent with the right of any taxable inhabitant to bring a bill to prevent the corporate authorities from transcending "their lawful powers, where the effect will be to impose upon him an unlawful tax or to in- crease his burden of taxation.'' Much more clearly may this be done when the right of the public officer of the state to interfere is not admitted, or does not exist; and in such case it would seem that a bill might properly be brought in the name of one or more of the taxable inhabitants for them- selves and all others simila;rly situated, and that the court should then regard it in the nature of a public proceeding to test the validity of the corporate acts sought to be impeached, and deal with and control it accordingly." * 5 Christie v. Maiden, 23 W. Va. 667. 6 People V. Lowber, 28 Barb. (N. Y.) 65; Bell v. City of PlattevUle, 71 Wis. J.39, 36 N. W. 831; Steele v. Municipal Signal Co., 160 Mass. 36, 35 N. E. 105; Baldwin v. Wllbraham, 140 Mass. 459, 4 N. E. 829; Ketchum v. City of Buffalo, 14 N. Y. 356. ^ Hodgman v. Chicago & St. P. Ey. Co., 20 Minn. 48 (Gil. 36) ; Brockman v. City of Creston, 79 Iowa, 587, 44 N. W. 822 ; Lore v. Mayor, etc., of City of Wilmington, 4 Del. Ch. 575 ; Cook v. City of Burlington, 30 Iowa, 94, 6 Am. Rep. 649 ; Wood v. Draper, 24 Barb. (N. Y.) 187; Id., 4 Abb. Prac. 322. 8 City of Springfield v. Edwards, 84 111. 626 ; City of Grayville V. Gray, 19 111. App. 120; Kelly v. Mayor, etc., of Baltimore. 53 Md. 134. § 160) DEFENDANT IN CHANCERY 4>87 Rule in New York From these conclusions the courts of New York dissent on the ground that private persons may not "assume to be cham- pions of the community, and in its behalf challenge the public officers to meet them in the courts of justice to defend their official acts." ' Special Instances Upon other matters' of equity it has been adjudged that equity will aid creditors of dissolved corporations to collect their debts from their successors;^" will supply defect^, in municipal bonds resulting from the omission of the treasurer to countersign them ; ^^ may relieve against a contractual for- feiture;^" will relieve lot owners against an unfair contract for local improvement.^* « Roosevelt v. Draper, 23 N. Y. 318. But this has since been changed by statute (Laws 1872, c. 161), and in this state a taxpayer may now maintain a suit in equity against a municipality for him- self and all others in interest to enjoin an illegal contract. Arm- strong V. Grant, 56 Hun, 226, 9 N. Y. Supp. 388; Newton v. Keech, 9 Hun (N^ Y.) 355 ; Metzger v. Attica & A. R. Co., 79 N. Y. 171 ; Beebe t. Supervisors of Sullivan County, 64 Hun, 377, 19 N. Y. Supp. 629; West V. City of Utica, 71 Hun, 540, 24 N. Y. Supp. 1075. 10 MT. PLEASANT v. BBCKWITH, 100 U. S. 514, 25 l: Ed. 699, Cooley, Cas. Mun. Corp. 74. 11 Melvin v. Lisenby, 72 111. 63, 22 Am. Rep. 141. 12 Taylor v. City of Caronflelet, 22 Mo. 105. See Maryland, to Use of Washington County, v. Baltimore & O. R. Co., 3 How.' (D. S.) 534, 11 L. Ed. 714. 13 Dean v. Charlton, 23 Wis. 590, 99 Am. Dee. 205. 488 ACTIONS (Ch. 15 INJUNCTIONS 161. Injunction is generally recognized and used as an ap- propriate remedy to be invoked both for and against the municipality for the protection of pub- lic and private rights, when irremediable loss or damage is menaced. Formerly the courts of equity were averse to the use of the process of injunction to arrest the operations of municipal gov- ernment, upon the ground that such drastic measures better befitted the courts of law, and that interference in govern- mental matters was not an appropriate function of equity. The reckless abuse of municipal power during the last half century, and the confusion of jurisdiction under the reform procedure, as well as the general tendency throughout the United States towards a relaxation of the old rules of prac- tice, have concurred to incline the courts generally to a more liberal use of this potent process in municipal affairs; and it is now more freely granted than formerly, not only against, but for, municipalities for the prevention of irreparable in- jury.^* Illustrations Injunctions have accordingly been granted in cases without number to restrain the collection of taxes tainted wirii fraud, or levied or assessed without authority of law; ^° .to prevent the issuance or delivery of municipal bonds invalid for like 14 Coast Co. V. Borough Spring Lake, 56 N. J. Eq. 615, 36 Atl. 21 ; Douglass V. Town of Harrisvllle, 9 W. Va. 162, 27 Am. Rep. 548. But It will not lie to control the action of public agents, such as a state board of arbitration, acting under legislative authority, unless irreparable injury is apparent. New Orleans City & L. R. Co. v. State Board of Arbitration, 47 La. Ann. 874, 17 South. 418. See Potts V. Philadelphia, 23 Pa. Co. Ct. R. 212; Borough of Shamokin v. Shamokm & M. C. E. R. Co., 196 Pa. 166, 46 Atl. 382. 15 Winkler v. Salstead, 36 Mo. App. 25 ; INTERNATIONAL TRADING STAMP CO. v. CITY OF MEMPHIS, 101 Tenn. 181, 47 INJUNCTIONS 489 reasons;*' to forbid the appropriation of corporate funds to objects unlawful or ultra vires ; *' to prevent the makiiig of illegal contracts ; ** to restrain a tax sale and a void local as-, S. W. 136, Cooley, Gas. Mull. Corp. 351; Fine v. Stuart (Tenn.) 48 S. W. 371. Equity may, by injunction, stay the collection of a tax when the law has conferred no authority to levy the tax, or where a person or officer not authorized by law to exercise such a power levies a tax, or when the proper persons make the "levy for purposes on the face of the levy not authorized, or for fraudulent purposes. Town of Ottawa V. Walker, 21 111. 605, 74 Am. Dec. 121. 16 Town of Clarksdale v. Broaddus, 77 Miss. 667, 28 South. 954; Town of Winamac v. Huddleston, 132 Ind. 217, 31 N. K 561 ; Hodg- man v. Chicago & St. P. Ey. Co., 20 Minn. 48 (Gil. 36) ; Lynch v. Eastern, L. F. & M. Ry. Co., 57 Wis. 430, 15 N. W. 743, 825. But not on the ground that the proceeds will pass into iihauthorized hands. City of Tampa v. Salomonson, 35 Fla. 446, 17 South. 581; Dunbar V. Board of Com'rs of Canyon County, 5 Idaho, 407, 49 Pac. 409;. Board of Com'rs of Owen County v. Spangler, 159 Ind. 575, 65 N.. E. 743. 17 Injunction will lie at the instance of a taxpayer to prevent tb& execution of a contract for public improvements stipulating that the contractor shall employ none but union labor. Adams v. Brenan, 177 111. 194, 52 N. E. 314, 42 L. R. A. 718, 69 Am. St. Rep. 222 ; Webster v. Douglas County, 102 Wis. 181, 77 N. W. 885, 78 N. W. 451, 72 Am. St. Rep. 870; Murphy v. East PorUand (C. C), 42 Fed. 308 ; The Liberty Bell (C. C.) 23 Fed. 843; Mitchell v. Wiles, 59 Ind; 364 ; Brockman v. City of Creston, 79 Iowa, 587, 44 N. W. 822. Where the municipal corporation appropriates money, contrary tty authority, to be expended in the celebration of Independence Day, injunction by taxpayers against the city and its treasurer is the ap- propriate remedy. City of New London v. Brainard, 22 Conn. 552; Yarnell v. City of Los Angeles, 87 Cal. 603, 25 Pac. 767 ; Harney v. Indianapolis, C. & D. R. Co., 32 Ind. 244; City of Rock Island v. Huesing,- 25 111. App. 600 ; Huesing v. City of Rock Island, 128 III. ^65, 21 N. B. 558, 15 Am. St. Rep. 129 ; Wade v. City of Richmond, 18 Grat. (Va.) 583; Bayle v. City of New Orleans (0. C.) 23 Fed. 843 ; Simmons v. City of Toledo, 5 Ohio Cir. Ct. R. 124. See Miller V. Bowers, 30 Ind. App. 116, 65 N. E. 559; Board of Education of Territory v. Territory ex rel. Taylor, 12 Okl. 286, 70 Pac. 792. 18 City of New London v. Brainard, 22 Conn. 552; Yarnell v. City of Los Angeles, 87 Cal. 603, 25 Pac. 767; Armstrong v. Grant, 56 Hun, 226, 9 N. T. Supp. 388; Mooney v. Clark, 69 Conn. 241, 37 Atl. 506, 1080 ; City of Akron v. France, 24 Ohio Cir. Ct. R. 63; Poppleton v. Moores, 62 Neb. 851, 88 N. W. 128 ; Id., 67 Neb. 388,- 93 N. W. 747. 490 ACTIONS (Ch. 15 sessment;" to prevent a change of street grade until the abutter's damages have been ascertained and paid;^" to re- strain the perversion of a public square to purposes in- consistent with the dedication ; ^^ to p.revent the closing of a public street;'''' to enjoin trades or occupations which are intrinsically nuisances ; ^^ and to aid in the abatement or pre- vention of other public nuisance.^* CRIMINAL PROSECUTION 162. A municipality is indictable at common law for non- feasance or misfeasance in respect of public duties imposed upon it by statute. This doctrine has received repeated recognition in the Eng- lish courts, where it is so extended as to include prescriptive 19 Holland V. Mayor, etc., of City of Baltimore, 11 Md. 186, 69 Am. Dec. 195; Landon v. City of Syracuse, 163 N. Y. 562, 57 N. E. 1114. 2 Hurford v. City of Omaha, 4 Neb. 336. Injunction is the proper remedy to restrain a town from' opening a street through a person's land, without first condemning it pursuant to law. Yates v. Town of West Grafton, 33 W. Va. 508, 11 S. E. 8. See Village of Itasca V. Schroeder, 182 111. 192, 53 N. E. 50. 21 Village of Princeville v. Auten, 77 111. 325; Cummings v. City of St. Louis, 90 Mo. 259, 2 S. W. 130; Cook v. City of Burlington, 30 Iowa, 94, 6 Am. Rep. 649 ; City of Pittsburg v. Epping-Carpenter Co., 194 Pa. 318, 45 Atl. 129 ; Sturmer v. County Court of Randolph County, 42 W. Va. 724, 26 S. E. 532, 36 I/. R. A. 300. 22 Hesing v. Scott, 107 111. 600. 2 3 Rounsaville v. Kohlheim (stable) 68 Ga. 668, 45 Am. Rep. 505; Ashbrook v. Commonwealth (cattle pens) 1 Bush (Ky.) 139, 89 Am. Dec. 616 ; Ross v. Butler (cinders) 19 N. J. Eq. 294, 97 Am. Dec. 654 ; Catlin V. Valentine (slaughter-house) 9 Paige (N. Y.) 575, 38 Am. Dec. 567; Bishop v. Banks (bleating calves) 33 Conn. 118, 87 Am. Dee. 197 ; Coker v. Birge (stable) 9 Ga. 425, 54 Am. Dec, 347. 2* City of Huron v. Bank of Volga, 8 S. D. 449, 66 N. W. 815, 59 Am. St. Rep. 769; City of Belton v. Central Hotel Co. (Tex. Civ. App.) 33 S. W. 297; TOWNSEND v. EPSTEIN, 93 Md. 537, 49 Atl. 629, 52 L,. R. A. 409, 86 Am. St. Rep. 441, Cooley, Cas. Mun. Corp. 254; Sammons v. City of Gloversville, 34 Misc. Rep. 459, 70 N. Y. Supp. 284. § 162) CRIMINAL PROSECUTION 491 as well as statutory duties ; but in Ametica indictments against municipal corporations have been confined to statutory of- fenses.^" The duty may be enjoined in the charter or im- posed by general statute.''^ A municipality is not indictable for a felony, since it is incapable of felonious intent, and can neither be hanged nor imprisoned;" nor, indeed, can it be guilty of any misdemeanor of which mala mens is an essenr tial ingredient.^* It is obvious, however, that for nonfeasance of a public duty a municipality may be guilty of a misdemean- or;^" and it may also be indicted for misfeasance in creat-! ing a public nuisance ; °" and for the performance of other acts forbidden by law which work harm and annoyance to the public.^ ^ It has accordingly been held that a municipality is indictable for unlawfully obstructing a public highway ; ^^ also for neglecting its duty to keep its streets in reasonable repair ; *^ and in Tennessee, and perhaps some other states; a municipality is indictable for permitting a public nuisance, such as a slaughter house,^* which annoys the inhabitants and 2 5 McClain, Cr. Law, § 182; 2 Dill. Mun. Corp. § 932. 28 Hill V. City of Boston, 122 Mass. 344, 23 Am. Eep. 332; People V. Albany Corporation, 11 Wend. (N. Y.) 539, 27 Am. Dec. 95; Wild V. Mayor, etc., of City of Paterson, 47 N. J. Law, 406, 1 Atl. 490. 27 1 Bouv. Law Diet. tit. "Felony." 28 State V. Passaic County Agricultural Soc, 54 N. J. Law, 260, 23 Atl. 680. 2» State V. Mayor, etc., of Town of Loudon, 3 Head (Tenn.) 263; Mayor, etc., of Town of Chattanooga v. State, 5 Sneed (Tenn.) 578. 3 People V. Albany Corporation, 11 Wend. (N. Y.) 539, 27 Am^ Dec. 95 ; Commonwealtb v. Inhabitants of Gloucester, 110 Mass. 491. SI State V. Barksdale, 5 Humph. (Tenn.) 154. 32 state V. Mayor, etc., of Town of Loudon, 3 Head (Tenn.) 264 ; State V. Dover, 46 N. H. 452. 3 3 State V. Mayor, etc., of Town of Murfreesboro, 11 Humph. (Tenn.) 217; Mayor, etc., of Town of Chattanooga v. State, supra; Commonwealth v. Trustees of Hopkinsville, 7 B. Mon. (Ky.) 38; Davis V. City of Bangor, 42 Me. 522; Commonwealth v. City of Boston, 16 Pick. (Mass.) 442. 34 State V. Shelbyville Corp., 4 Sneed (Tenn.) 176. The city of Albany was held indictable for neglect to do what the common good required, where it was authorized to direct the ex- cavating, deepening, or cleansing of a basin connected with a river. 492 ACTIONS (Ch. 15 endangers public health. The same doctrine is also held in some, states with regard to public sewers.^ = Municipalities have also been held indictable for neglect to erect a bridge pursuant to law imposing the duty/* and also for neglecting to keep municipal bridges in repair; " and in some states for neglecting to keep in repair bridges and abutments erected by railroad companies over their tracks where they cross the pub- lic streets.'* Modern judicial tendency, like public sentiment, is towards assimilating corporations to natural persons in their liabilities, civil and criminal. This tendency finds apt expres- sion in the following words of a Massachusetts judge : "Cor- porations cannot be indicted for offenses which derive their criminality from evil intention, or which consist in a violation of those social duties which appertain to men and subjects. They cannot be guilty of treason, or felony, or offenses against the person. But beyond this there is no good reason for their exemption from the consequences of unlawful and wrongful acts committed by their agents in pursuance of authority de- rived from them." " so that it became fouled by the aggregation of mtid and other sub- stances, whereby a nuisance was created. People t. Albany Corpo- ration, 11 Wend. (N. X.y 539, 27 Am. Dec. 95. SB A borough on which is imposed the duty of making regulations necessary for the health and cleanliness of the borough may be in- dicted for permitting its sewers to become a public nuisance. Com- monwealth v. Bredin, 165 Pa. 224, 30 Atl. 921. Contra, Georgetown v. Commonwealth, 24 Ky. Law Eep. 2285, 73 S. W. 1011, 61 L. B. A. 673. 3 8 State V. Town of Whitingham, 7 Vt. 390; State v. Inhabitants of Madison, 63 Me. 546 ; State v. Inhabitants of Hudson County, 30 N. J. Law, 137. 3 7 People V. Albany Corporation, 11 Wend. (N. T.) 539, 27 Am. Dec. 95; Russell v. Men of Devon, 2 Term R. 667; Thomas v. Sor- reU, Vaughan, 330. 38 State V. Inhabitants of Gorham, 37 Me. 457 ; State v. City of Portland, 74 Me. 268, 43 Am. Eep. 586. 39 Commonwealth v. Proprietors of New Bedford Bridge, 2 Gray (Mass.) 339. Ch. 16) QUASI COKPORATIONS COUNTIES 493 CHAPTER XVI QUASI CORPORATIONS— COUNTIES 163. Quasi Corporations. 164. Immunities. 165. Distinguishing Elements. 166. Counties. 167. Creation of Counties — Legislative Power. 168-169. Property — Public Use — Sovereign Power. 170. Government and Officers. 171-172. Powers of County Government. 173. Torts. 174. Power of Eminent Domain. 175. Police Power. QUASI CORPORATIONS 163. Quasi corporations include every local subdivision of a state, other than a municipality, created by general law as an agency of the state to effect the adminis- tration of public affairs and the enforcement of law. Municipalities proper included incorporated villages, towns, and cities, having the powers of local legislation and adminis- tration.^ They are usually called into existence at the direct solicitation or by the free consent of the persons composing them, for the promotion of their own local and private advan- tage and convenience.^ They are highly organized, possessing the usual attributes and incidents of a perfect corporation as 1 Dill. Mun. Corp. (4tli Ed.) § 22, p. 42 ; Beach, Mun. Corp. § 3, p. 7; City of Philadelphia v. Fox, 64 Pa. 169; Heller v. Stremmel, 52 Mo. 309. 2 Dill. Mun. Corp. § 23 ; Beach, Mun. Corp. § 4, p. 8 ; BOARD OF COM'RS OF HAMILTON COUNTY v. MIGHELS, 7 Ohio St. 109, Cooley, Cas. Mun. Corp. 4; City of Philadelphia v. Fox, 64 Pa. 169. 494 QUASI CORPORATIONS COUNTIES (Ch. 16, recognized by the common law.' They have charters like other complete corporations, and are subject to the great body of the law of corporations, though with many exceptions on account of their pubhc character. In short, they are full cor- porations, and therefore must be distinguished from quasi corporations, which are involuntary,* having no charter,^ gov- erned solely by the statute law of the state, and exercising only the particular administrative functions conferred upon them thereby." Quasi Corporations Quasi corporations have been held to include counties,' townships,* New England towns,^ school districts,^" road dis- 3 Beach, Mun. Corp. § 3, p. 7; Cuddon v. Eastwick, 1 Salk. 192 ; BrickerhofE v. Board of Education, 37 How. Prac. (N. X.) 499 ; PEO- PLE ex rel. LE ROY v. HURLBUT, 24 Midi. 44, 9 Am. Rep. 103, Cooley, Cas. Mun. Corp. 36. < Beach, Mun. Corp. § 4; BOARD OF COM'RS OP HAMILTON COUNTY V. MIGHELS, 7 Ohio St. 109, Cooley, Cas. Mun. Corp. 4. oDill. Mun. Corp. § 25; Smith, Mun. Corp. § 8: "Counties, town- ships, school districts, road districts, and like public quasi corpora- tions do not usually possess corporate powers under special charters ; but they exist under general laws of the state." 6 In the case of BOARD OF COM'RS OF HAMILTON COUNTY V. MIGHELS, supra, the court said, with reference to counties: "They are local subdivisions of the state, created by the sovereign power of the state, of its own sovereign will, without the particular solicitation, consent, or concurrent action of the people who inhabit them, * * * superimposed by a sovereign and paramount author- ity." See Town of Freeport v. Board of Supervisors of Stephenson County, 41 111. 495, Cooley, Const. Lim. (6th Ed.) p. 294. 7 Talbot County Com'rs v. Queen Anne's County Com'rs, 50 Md. 245; Pulaski County v. Reeve, 42 Ark. 55; BOARD OF COM'RS OP HAMILTON COUNTY v. MIGHELS, 7 Ohio St. 109, Cooley, Cas. Mun. Corp. 4. See, also, Boone, Corp. § 10 ; Elliott, Mun. Corp. § 3. s Mower v. Inhabitants of Leicester, 9 Mass. 247, 6 Am. Dec. 63 ; Town of North Hempstead v. Town of Hempstead, 2 Wend. (N. Y.) 109; Damon v. Inhabitants of Granby, 2 Pick. (Mass.) 352. 9 Commonwealth v. City of Boxbury, 9 Gray (Mass.) 451 ; East- man V. Meredith, 36 N. H. 284, 72 Am. Dec. 302 — where it was said that the New England towns are involuntary corporations, having 10 See note 10 on following page. § 16S) QUASI CORPORATIONS 495 tricts,^^ public commissioners,^^ boards of supervisors,^*, school trustees/* and other bodies "created for a public pur- pose as an agency of the state, through which it can most con- veniently and effectually discharge the duties of the state as an organized government to every person, and by which it can best promote the welfare of all." ^^ Considered with respect given no assent to their creation, and having been incorporated by virtue of no contract, express or implied, with the state. In Town of Bloomfield v. Charter Oak Nat. Bank, 121 U. S. 121, 7 Sup. Ot. 865,' 30 L. Ed. 923, Gray, J., said : "Towns in Connecticut, as in the other New England states, differ from trading companies, and even from municipal corporations elsewhere. They are territorial corporations, into which the state is divided by the Legislature, from time to time, at its discretion, for political purposes and the convenient ' ad- ministration of government. They have those powers only which have been expressly conferred upon them by statute, or which are necessary for conducting municipal affairs; and all the inhabitants of the town are members of the quasi corporation." Town of Grari- by V. Thurston, 23 Conn. 416; Webster v. Town of Harwinton, 32 Conn. 131; Parsons v. Inhabitants of Goshen, 11 Pick. (Mass.) 396; Inhabitants of Norton v. Inhabitants of Mansfield, 16 Mass. 48; Stetson V. Kempton, 13 Mass. 272, 7 Am. Dec. 145. 10 Beach V. Leahy, 11 Kan. 23; Inhabitants of Fourth School Dist. In Rumford v. Wood, 13 Mass. 193 ; Harris v. School Dist. No. 10, in Canaan, 8 Fost (28 N. H.) 58; Wilson v. School Dist. No. 4 in Ches- ter, 32 N. H. 118; Foster v. Lane, 30 N. H. 305; Rogers v. People ex rel. Brewer, 68 111. 154; Scales v. Ordinary of Chattahoochee County, 41 Ga. 225. A school district has been held to be included within the phrase "political or municipal corporation." Clark v. Thompson, 37 Iowa, 536. So, also, a township. Curry v. District Tp. of Sioux City, 62 Iowa, 104, 17 N. W. 191 ; Winspear v. District Tp. of Holman, 37 Iowa, 542. See, as to construction of word "town," Stout V. Borough of Glen Ridge', 59 N. J. Law, 201, 35 Atl. 913. See, also. School Dist No. 11 v. Williams, 38 Ark. 454. 11 People V. Lathrop, 19 How. Prac. (N. T.) 358; Levy Court v. The Coroner, 2 Wall. 501, 17 L. Ed. 851 ; Ctom'rs of Scioto v. Gherky, Wright (Ohio) 493 ; Ix)wer Board of Com'rs of Roads for St. Peter's Parish v. McPherson, 1 Speers (S. C.) 218. 12 Attorney General v. Andrews, 2 Macn. & G. 226; Hall v. Tay- lor, El. Bl. & El. 107. isPomeroy v. Wells, 8 Paige (N. Y.) 406; Todd v. Birdsall, 1 Cow. (N. T.) 260, 13 Am. Dec. 522. 1* Littlewort v. Davis, 50. Miss. 403. See Bassett v. Fish, 75 N. y. 303. 15 City of Galveston v. Posnainsky, 62 Tex. 118, 50 Am. Rep. 517, 496 QUASI coRpqnATioNS — counties (Ch. 16 to the limited number of their corporate powers, the bodies above named rank low down in the scale or grade of cor- porate existence, and hence they are called quasi (almost) cor- porations.^' Though all in the same class, they are of differ- ent grades in the scale of corporate life, from the New Eng- land town, which so closely approximates the municipality as scarcely to be distinguishable from it in law,^^ down through the other public instrumentalities of various powers and func- tions to the school district, declared by the Supreme Court of New Hampshire to be a "quasi corporation of the most lim- ited powers known to the law." " This variety of powers and rank results from the difference in the statutes creating and empowering these various corporations, which must al- ways be consulted and carefully scrutinized to ascertain and determine the limit of powers, functions, and liabilities. Sub- ject to statutory regulation, there are, of course, certain pe- culiar qualities and attributes common to all quasi corpora- tions, which distinguish them from municipalities, and exempt them from the general law of corporations. wherein also a quasi corporation Is spoken of as "a subdivision of the state, created solely for a public purpose, by a general law ap- plicable to all such subdivisions." 18 DUl. Mun. Corp. § 25; Hamilton County v. Garrett, 62 Tex. 602. 1' Town of Bloomfield v. Charter Oak Nat. Bank, 121 U. S. 121, 7 Sup. Ct. 865, 30 U Ed. 923; Commonwealth v. City of Roxbury, 9 Gray (Mass.) 451 ; Eastman v. Meredith, 36 N. H. 284, 72 Am. Dec. 302. In Warren v. Mayor and Aldermen of Chariestown, 2 Gray (Mass.) 84, the court said: "The marked and characteristic distinc- tion between a town organization and that of a city is that In the former all of the qualified inhabitants meet, deliberate, act, and vote in their natural and personal capacities, whereas in a city gov- ernment this is all done by their representatives." 18 Harris v. School Dist. No. 10, in Canaan, 8 Post. (28 N. H.) 58. § 164:) IMMUNITIES 497 IMMUNITIES 164. Quasi corporations are not liable to private action against them for a breach of duty, imless such ac- tion be expressly given by statute. This has been taken as a chief mark of distinction between municipal corporations and quasi corporations. In the leading case of Board of Com'rs of Hamilton County v. Mighels,^° in which judgment had been rendered in the court below against the county for neglect of public duty by its board of commissioners, the Supreme Court of Ohio, overruling a pre- vious case,^" reversed the judgment of the inferior court upon the ground that, "by the decisions of courts of justice and the treatises of learned men," the people of a county are not lia- ble for the official delinquencies of their county commission- ers, or other county officers, either on the principles or prece- dents of the common law.^^ In the course of the opinion ex- pressing the reasons of the court for this decision, Brinker- hoff, J., said: "A municipal corporation proper is created mainly for the interest, advantage, and convenience of the lo- cality and its people. A county organization is created almost exclu^vely with a view to the policy of the state at large, for the purposes of political organization and civil administration, in matters of finance, of education, of provision for the poor, of military organization, of the means of travel and transport,^ 18 BOARD OF COM'RS OF HAMILTON COUNTY v. MIGHELS, 7 Ohio St. 109, Cooley, Cas. Mun. Corp. 4. 20 Brown County Com'rs v. Butt, 2 Ohio, 348. 21 BOARD OF COM'RS OF HAMILTON COUNTY v. MIGHELS, 7 Ohio St. 109, Cooley, Oas. Mun. Corp. 4. In this connection the court said : "It is undoubtedly competent for the Legislature to make tl^e people of a county liable for the official delinquencies of the county commissioners, and, if they think it wise and just, with- out any power in the people to control the acts of the commission- ers, or to exact indemnity from tliem. But this has not yet been done." ^ COOL.MUN.CORP. — 32 498 QUASI COEPOEATIONS COUNTIES (Ch. 16 and especially for the general administration 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." Reasons for It is familiar law that no action lies against the state for the neglect or misconduct of its officers; therefore none lies against the county, which is but an arm of the state for gen- eral administration; while a municipal corporation, being a voluntary organization for the special benefit of its people, is liable in many particulars for the neglect of its agents to per- form official duty, resulting in injury to individuals.^'' The Ohio case above cited has been very generally followed in the courts of the United States for the past half century, and may be regarded as established law with regard not only to coun- s 22 Judge Dillon, in his Commentaries on the Law of Municipal Corporations, vol. 2, § 966 (4th Ed.) says: "As respects municipal corporations proper, whether specially chartered or voluntarily or- ganized under general acts of the character alluded to, it is, we think, universally considered, even in the absence of statute giving the ac- tion, that they are liable for acts of misfeasance positively injuri- ous to individuals, done by their authorized agents or officers in the course of the performance of corporate powers constitutionally conferred, or in the execution of corporate duties; and it is the almost, but not quite, uniform doctrine of the courts that they are also liable where the wrong resulting in an injury to others consists in a mere neglect or omission to perform an absolute and perfect (as distinguished from a legislative, discretionary, quasi judicial, or imperfect) corporate duty." And, further: "What is termed a quasi corporation, though possessing full corporate capacity and a corporate purse, is not impliedly liable for acts of misfeasance or neglect of public duty on the part of its officers and agents, while for the same or a similar wrong there is such a liability resting on municipal or chartered corporations." In City of Chicago v. Railroad Co., 105 111. 73, Sheldon, J., said: "We recognize the doctrine to be that the unauthorized acts of mu- nicipal officers are regarded as the acts of the corporation, provided the acts are performed by that branch of the municipal government which is invested with jurisdiction to act for the corporation upon the subject to which the particular act relates." § 164) IMMUNITIES 499 ties, but also to all other quasi corporations.^' The Ohio court rested its decision particularly upon the reason that the county had no fund out' of which satisfaction could be made, and upon the authority of the leading English case of Russell V. Men of Devon,^* the authority of which has been 2 3Larkin v. Saginaw Co., 11 Mich. 88, 82 Am. Dec. 63; Lesley v. White, 1 Speers (S. C.) 31 ; Carroll v. Board of Police of Tishamingo County, 28 Miss. 38; Soper v. Henry County, 26 Iowa, 264; Board of Chosen Freeholders of Sussex County v. Strader, 18 N. J. Law, 108, 35 Am. Dee. 530. In Mower v. Inhabitants of Leicester, 9 Mass. 247, 6 Am. Dec. 63, which was an action against a town for an injury caused by a defect in a highway, Gray, C. J., says : "It is well settled that the common law gives no such action. Corporations created for their own benefit stand on the same ground, in this respect, as individuals. But quasi corporations, created by the Legislature for purposes of public policy, are subject, by the common law, to an indictment for the neglect of duties enjoined on them; but are not liable to an action for such neglect, unless the action be given by some statute." See Hill v. City of Boston, 122 Mass. 344, 350, 23 Am. Rep. 332; Weightman v. Washington Corp., 1 Black, 39-53, 17 L. Ed. 52 ; Beardsley v. Smith, 16 Conn. 375, 41 Am. Dec. 148 ; Town of Union v. Crawford, 19 Conn. 331; Chidsey v. Town of Canton, 17 Conn. 475; Titler v. Iowa County, 48 Iowa, 90; Sherbourne v, Yuba County, 21 Cal. 113, 81 Am. Dec. 151; Lorillard v. Town of Monroe, 11 N. Y. 392, 62 Am. Dec. 120; State v. Inhabitants of Hudson County, 30 N. J. Law, 137 ; Kincaid v. Hardin Co., 53 Iowa, 430, 5 N. W. 590, 36 Am. Rep. 236 ; Hollenbeck v. Winnebago County, 95 111. 148, 35 Am. Rep. 151. In Indiana it is imperative upon the county to keep bridges in repair. It being empowered to appropriate money for that purpose, it is held impliedly liable for damages sustained by a traveler from a county bridge negligently allowed to remain out of repair. House V. Board of Commissioners of Montgomery County, 60 Ind. 580, 28 Am. Rep. 657; Abbett v. Board of Com'rs of Johnson County, 114 Ind. 61, 16 N. E. 127; Board of Com'rs of Knox County v. Mont- gomery, 109 Ind. 69, 9 N. E. 590. And in the New England States the doctrine does not apply to the towns where the duty is private or corporate, as distinguished from public ; nor in the case where the wrongful act is in the nature of a trespass upon the property rights of others. Ball v. Town of Winchester, 32 N. H. 435, ex- plained and limited by Oilman v. Town of Laconia, 55 N. H. 130, 20 Am. Rep. 175. See, also, Weed v. Borough of Greenwich, 45 Conn. 170. 2* Russell v. Men of Devon, 2 Term R. 667. 500 QUASI CORPORATIONS COUNTIES (Ch. 16 generally recognized by the courts of this country." Whether placed upon one ground or the other, or upon both, it may. be regarded as the settled law of the land, and the same rea- soning which applies to counties may be applied with greater force to other quasi corporations, all of which save the New England town, are of lower grade than the county. The same doctrine has also been repeatedly stated by the courts of New England in the decisions of cases brought against towns to recover damages for injury resulting from the neglect of town officials.'" 2 5 Mower v. Inhabitants of Leicester, 9 Mass. 247, 6 Am. Dec. 63; White V. City Council of Charleston, 2 HUl (S. C.) 571; Ward v. Hartford County, 12 Conn. 404 ; Fowle v. Alexandria, 3 Pet. (U. S.) 409, 7 L. Ed. 719; Morey v. Town of Newfane, 8 Barb. (N. Y.) 645. 2« In BIgelow V. Inhabitants of Randolph, 14 Gray, 541, where a town in Massachusetts had assumed the duties of a school district, , and a scholar attending the public school was injured by reason of a dangerous excavation in the schoolhouse yard, owing to the neg- ligence of the town oflScers, it was held that the town was not liable. In the case of Eastman v. Meredith, 36 N. H. 284, 72 Am. Dec. 302, the material facts were that the town of Meredith (defendant) built a townhouse, in which, among other things, to hold town meet- ings ; the house, by reason of the negligence of those constructing it for the town, was defectively built, and the flooring gave way dur- ing a session of the town meeting, and the plaintiff was injured while in attendance upon said meeting. It was held that the plain- tiff could not recover; and this decision was based mainly upon the ground, above stated, that a statute is necessary. It has been, uni- formly so ruled in New England since the early cases of Riddle v. Proprietors of Merrimack River Locks and Canals, 7 Mass. 169, 5 Am. Dec. 35, and Mower v. Inhabitants of Leicester, 9 Mass. 250, 6 Am. Dec. 63, in cases to subject towns to a civil action for neglect to perform a public duty. § 165) DISTINGUISHING ELEMENTS 501 DISTINGUISHING ELEMENTS 165 Quasi corporations, notwithstanding the variety of their objects and functions, have other elements in common distinguishing them from municipal cor- porations proper and other bodies, and attaching them to this class of public corporations, among which are the following: (a) They have no charters. (b) They are involuntary organizations created by the sovereign power of the state of its own sovereign will, without the request and regardless of the wishes of the inhabitants. (c) They are created exclusively for purposes of civil ad* ministration. (d) They do not possess all the common-law powers im- plied from and incidental to corporate existence, but such only as are implied from the powers ex- pressly granted, and the duties imposed upon them by statute or usage. Quasi corporations are usually erected in pursuance of gen- eral law, applicable alike to all parts of the state,"'' and the powers conferred and the duties imposed upon each class of them are specified in the general law. Counties, though creat- ed and bounded by special statute, obtain their powers and functions from, and are charged with their duties by the gen- eral law, and none of these bodies can exist except under leg- islative enactment. But they are not required to possess, nor do they have, that documentary evidence of authority from the state presumed to be held by full corporations as evidence of their rights and powers."* s' City of Galveston v. Posnainsky, 62 Tex. 118, 50 Am. Rep. 517. 2 8 Cooley, Const. Lim. (6th Ed.) pp. 294, 295.: 502 QUASI COKPOEATIOXS COUNTIES (Ch. IG Popular Assent Private corporations can only be established by the assent and co-operation of the members. Municipal corporations may be, but rarely are, erected without the request or con- sent of the inhabitants of the proposed municipality. Quasi corporations are "superimposed by the sovereign and para- mount authority" "' of the state as agencies for civil govern- ment, virithout the request of the people of the locality, and whether they may wish them or not. "Whether they shall assume the duties or exercise the powers conferred, the peo- ple of the political division are nrft allowed the privilege of choice. The Legislature assumes such division of the state to be essential in republican governments, and the duties are imposed as part of the proper and necessary burden which the citizens must bear in maintaining and perpetuating con- stitutional liberty." " Local Benefits Under our form of government, the sovereign power over public affairs not committed to the federal gbvernment belongs to the state. Our theory is that the people rule ; they ordain laws through their state Legislatures for the purposes of local government. For the enforcement of' these laws and the ad- ministration of public affairs, various instrumentalities are re- quired. Local self-governrhent is a cherished inheritance of the Anglo-Saxon. To effect this, local agencies are essential, and counties, towns, districts, and local boards have been es- tablished for the more efficient administration of general laws throughout the state. They are not created for the special benefit of the people of the locality, but to insure the execution of the sovereign will in all parts of the state, and thereby pro- 2 9 BOARD OF COM'RS OF HAMILTON COUNTY v. MIGHELS, 7 Ohio St. 109, Cooley, Cas. Mun. Corp. 4. See, also, Harris v. School Dist. No. 10, in Canaan, 8 Fost. (28 N. H.) 58. 3 Cooley, Const. Lim. (6th Ed.) pp. 294, 295. See, also, Scales v. Ordinary of Chattahoochee County, 41 Ga. 225; Granger v. Pulaski County, 26 Ark. 37 ; Palmer v. Fitt^, 51 Ala. 489. § 165) DISTINGUISHING ELEMENTS 503 mote the general welfare.*^ It results, of course; that the peo- ple of each locality are benefited by the local administration under these quasi corporations ; but this is in consequence of the public policy of the state and the wholesome effect of the administration of the general law. No particular privileges or franchises, no special rights or favors, are conferred on these quasi corporations. The powers, rights, duties, and functions are wholly of a public nature.^'' Inherent Powers Corporations generally possess certain powers impliedly at- tached to them as incidental to their existence as such, among which are perpetual succession, a corporate name whereby to contract, receive, hold, and grant title, to sue and be sued, pur- chase and hold property, have a common seal, make by-laws, and remove members.^^ Since quasi corporations are not full siln BOARD OF COM'RS OF HAMILTON COUNTY v. MI- GHBLS, 7 Ohio St. 109, Cooley, Gas. Mun. Corp. 4, already cited, Brlnkerhoff, J., said: "A county organization is created almost ex- clusively with a view to the policy ol the" state at large, for purposes of political organization and civil administration, in matters of finance, of education, of provision for the poor, of military organiza- tion, of the means of travel and transport, and especially for the general administration 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." See, also, Boalt v. Williams County Commissioners, 18 Ohio, 16; Ward V. Hartford County, 12 Conn. 406. 32 Judge Cooley, In his treatise on Constitutional Limitations (eiji Ed.) p. 295, says, with reference to quasi corporations: "Usually their functions are wholly of a public nature, and there is no room to imply any contract between them and the state, in their organiza- tion as corporate bodies, except that which springs from the ordinary rules of good faith, and which requires that the property they shall acquire, by local taxation or otherwise, for the purposes of their organization, shall not be seized by the state, and appropriated in other ways. They are therefore sometimes called quasi corpora- tions to distinguish them from the corporations in general, which possess more completely the functions of an artificial entity." 33 Clark, Priv. Corp. § 51; Elliott, Priv. Corp. § 140. In Hope Mut. Life Ins. Co. v. Weed, 28 Conn. 63, It was said : "While a cor- poration has no powers except those which are conferred by its char- 504 QUASI CORPORATIONS COUNTIES (Ch. 1& corporations completely organized and empowered by charter to act in many respects as a natural person, but are merely state agencies and instrumentalities for governmental purpos- es, all implied rights and powers attributed to municipal cor- porations by common law are not possessed by quasi corpora- tions.'* They may not have a common seal, nor make by-laws,, nor remove members ; and yet their nature is such that obvi- ously they have perpetual succession and a corporate name, and they may purchase and hold property necessary for the performance of their functions. They are so unlike the pub- lic corporations of England that the rules of the common law pannot be indiscriminately applied to them."' And yet where- in the purposes of organization and mode of operation of the quasi corporations in this country ^are identical with similar Jjodies in England the rules of the common law are applica- ble. This is illustrated by the fact that very generally in America the courts have recognized and followed, in decisions affecting the liability of counties and other qUasi corporations,, the leading English case of Russell v. Men of Devon.'' The usual rules adopted by the courts for determining the rights and functions and limitations of power of quasi corporations ter, it is not requisite that these powers should be expressly granted, but it possesses impliedly, and incidentally all such powers as are necessary for the purpose of carrying into effect those which are ex- pressly granted, The creation of a corporation for a specified pur- pose implies a power to use the means necessary to effect that pur- pose." See Union Bank v. Jacobs, 6 Humph. (Tenn.) 515 ; Bates v. Coronado Beach Co., 109 Cal. 160, 41 Pac. 855; People ex rel. Mo- loney V. Pullman's Palace Car Co., 175 111. 125, 51 N. E. 664, 64 L. R. A. 366; Lyndeborough Glass Co. v. Massachusetts Glass Co., 11 Mass. 315. 8* Inhabitants of Fourth School Dist. in Rumford v. Wood, 13- Mass. 193. SB Elliott, Mun. Corp. § 11; 1 Dill. Mun. Corp. §§ 32-44. 88 2 Term R. 667; Taylor v. Salt Lake County Court, 2 Utah, 405. See Lyell v. St. Clair County, 3 McLean (U. S.) 580, Fed. Cas. No. 8,621; Hunsaker v. Borden, 5 Cal. 288, 63 Am. Dec. 130; Sharp v. Contra Costa County, 34 Cal. 284; Ward v. Hartford County, 12 Conn. 404; Rock Island County v. Steele, 31 111. 543; Andersoa v. State, 23 Miss. 459. I 166) COUNTIES 505 are the canons of construction applied to statutory law.'^ The statute confers certain express powers; the courts recognize whatever implied powers are essential to carry out the express powers, having in view the purpose and object of the organiza- tion. The nature and extent of these powers will be con- sidered hereinafter in connection with each of the several classes of quasi corporations separately noticed. COUNTIES 166. The county, as the oldest, commonest, and best known of all the members of its class, is recognized as the type of the quasi corporation; and the decisions in cases involving the rights, powers, and liabili- ties of counties, being the most numerous and im- portant, comprise the Body of the law in relation to this class of public corporations. The American county, being an adaptation of the English ■shire to the public wants and conveniences in a newly settled country, is to be found by that name of French origin in every one of the United States save Louisiana, a state of French origin, where it still retains the peculiar English name "par- ish." The county is the largest permanent subdivision of the state, and, however much its nature, functions, and powers may differ in the various states, it is everywhere recognized as a quasi corporation, notwithstanding the fact that in some of the states, where cities have grown and extended until the municipal territory includes the whole county, will be found close analogies to the English county corporate.** It is not to be supposed, however, that, because of the universality of this organization in the American commonwealth, the decisions 3T 1 Dill. Mun. Corp. (4th Ed.) §§ 89-91, where the rules of con- struction are very learnedly and copiously discussed. 38 See Standard Dictionary, subject "County Corporate" ; Ency- clopedia Americana, in verb. 506 QUASI CORPORATIONS COUNTIES (Ch. 16 of the supreme court of each state are to be considered as authority in other states in regard to the powers and func- tions of these civil divisions of the state. These powers and functions are dependent in each state not only upon the con- stitutional and statutory law of the state, but also upon the local conception of the county existing in that state, growing out of its origin, history, and traditions. But these decisions are consistent and uniform as to the general nature of this organization, as declared by the Supreme Court of Ohio,"" and adopted by Judge Dillon as correctly expressing the local character and functions of such bodies : "Counties are at most local organizations, which, for the purposes of civil adminis- tration, are invested with a few functions characteristic of a corporate existence. They are local subdivisions of the state, created by the sovereign power of the state of its own sover- eign will, without the particular solicitation, consent, or con- current action of the people who inhabit them." *° Counties, North and South Notwithstanding the general, if not unanimous, concurrence of the courts of the other states in this view of the county as a quasi corporation, there is a fundamental political distinction between the counties of New England and of the states south of the Potomac river, having its origin in colonial times, and finding its expression in the Western states settled chiefly by the inhabitants from those respective portions of the country. In the Southern states the county is the unit of political or- ganization and administration, and that is therefore a close approximation to the corporation. It has been laid out merely as a part of the governmental machinery, and is subdivided "in- to districts or townships for the more efficient performance of 3» BOARD OF COM'RS OF HAMILTON COUNTY v. MIGHELS, 7 Obio St. 109, Cooley, Gas. Mun. Corp. 4. 10 BOARD OF COM'RS OF HAMILTON COUNTY v. MIGHELS, supra, quoted by Judge Dillon in his Commentaries on Municipal Cor; poratlons (4tli Ed.) § 23 ; ASKEW v. HALE COUNTY, 54 Ala. 639^ 25 Am. Rep. 730, Cooley, Cas. Mun. Corp. 355. § 166) COUNTIES 507 neighborhood governmental functions.*^ In the New Eng- land states, on the contrary, the town is the administrative unit, governed by its peculiar and praiseworthy town meet- ing;*^ and a county is but a collection of these towns. As a consequence, in all the Southern states, formed for the most' part upon the Virginia model, the county has a full set of officers, who are charged with the supervision or performance of all functions of local government.^' Under the New England plan, however, the powers and functions of' a county are few, and pertain chiefly to the maintenance of county buildings, the granting of licenses, and a partial control over highways. Here it was originally created solely for the per- formance of functions connected with the judicial department of the state, the ordinary ministerial and administrative func- tions of government being left to the towns ; but in the course of time and the progress of development some of these town functions, in a greater or less measure in the various states, have been conferred upon the counties, though the town still remains the political unit.** In the Middle states, under the aggressive and dominant influence of the conflicting ideas of Massachusetts and -Virginia, an amalgamated system of local government was formed, and the county consequently em- bodies an intermediate legal relation between the counties of New England and those of the Southern states. This system, which distributes affairs of local adminstration in about equal *i Elliott, Mun. Corp. § 6. 42 Thomas Jefferson wrote: "Those wards called 'townships' in New England are the vital principle of their governments, and have proved themselves the wisest inventions ever devised by the wit of man for the perfect exercise of self-government and for its preserva- tion." Jeff. Cyc. in verb. 43 "The Southern settlers adopted the county as the unit of admin- istration, while the immigrants from New England carried with fhem their ideas of the importance of the town, and the town meeting. In New England the county was originally created solely for judicial purposes, although in the process of time certain other functions have been taken from the township and conferred upon it." Elliott, Mun. Corp. § 6. 44 1 Dill. Mun. Corp. §§ 28-30. 508 QUASI CORPORATIONS'— COUNTIES (Ch. 16 parts 'between tlie county and town or township, is the one ex- isting in the Middle states of New York and Pennsylvania, and commonly prevailing also in the great central states of the Mississippi Valley.*" It is to be remembered that, under whatever system the county is organized, the state Constitution and the statute under which it is erected are the measure and chart of its functions and powers. CREATION OF COUNTIES— LEGISLATIVE POWER 167. Every county exists as a result of a sovereign act of legislation, either constitutional or statutory, sep- arating it from the rest of the state as an integral part of its territory, and establishing it as one of the primary divisions of the state for the purposes of civil administration. Counties may be established by an ordinance of the organic law, but they are usually created by special act of Legislature,. *5 This is known as the "compromise system," being a compro- mise between the New England town system and the Southern coun.- ty system. The compromise system was developed in New York and Pennsylvania; but the present system in use in Pennsylvania is called the "commissioner form" of this system, and the county au- thority consists of commissioners elected by the people of the coun- ty at large; while under the supervisor, or New ¥ork, form, the governing board is composed of supervisors elected from the towns composing the county. This form of the compromise system is found also in Michigan, Illinois, Nebraska, Wisconsin, and Virginia, al- though in the last-named state the form is somewhat modified. The commissioner form of the system, in addition to Pennsylvania, al- ready mentioned, exists in Kansas, Missouri, Iowa, Indiana, and Ohio, and in a modified form in Minnesota, North and South Da- kota, Maine, and Massachusetts, and, according to 1 How. Local Const. Hist. p. 439 (cited by Dr. Elliott in his Principles of the Law of Public Corporations, § 5, note 2), has "been very generally adopted as the form for the county authority in the commonwealths of the- South, where there are in the county generally no lesser districts to be represented." § 167) CREATION — LEGISLATIVE POWER 509 setting forth the name, territorial boundaries, and county seat.** This act of legislation, being an exercise of sovereign legislative power, and solely for public purposes, is limited and restrained in its scope and effect only by the provisions of the state constitution.*' These restraints are commonly such as insure sufficient territory and population and prevent undue encroachment upon the territory of existing counties.** This special act also comrtionly provides the date when the county shall assume its functions, and names commissioners for the purpose of doing the acts necessary to bring it into existence. This special act is in no sense a charter, and does not express the powers, functions, duties, and liabilities of the county thus created. These are to be found in the Constitution and stat- utes which provide for the organization of the state govern- ment, the division of its territory into counties, and express the governmental powers and functions conferred upon them.*" Popular Consent In some states, the Constitution requires some popular ex- pression of consent as a condition precedent to the erection of a new county. The determination by the Legislature of the existence of the functions necessary to the formation of a *6 Elliott, Mun. Corp. § 20. *7 State ex rel. Attorney General v. Dorsey County, 28 Ark. 378 ; Wade V. City of Eichmond, 18 Grat. (Va.) 583 ; State ex rel. Slipp v. McFadden, 23 Minn. 40; State ex rel. Attorney General v. Board of Commissioners of Pawnee County, 12 Kan. 426. *8 As an instance of these restraints, the Constitution of Tennessee (article 10, § 4) provides : "New counties may be established by the legislature to consist of not less than two hundred and seventy-five square miles, and which shall contain a population of seven hundred qualified voters; no line of such county shall approach the court- house of any old county from which it may be taken nearer than eleven miles, nor shall such old county be reduced to less than five hundred square miles." 49 PEOPLE ex rel. LE ROY v. HURLBUT, 24 Mich. 44, 9 Am. Rep. 108, Cooley, Cas. Mun. Corp. 36; City of Chicago v. Wright, 69 111. 326; Astor v. Mayor, etc., of City of New York, 62 N. Y. 567; United States ex rel. Brown v. Memphis, 97 U. S. 284, 24 L. Ed. 937. 510 QUASI CORPORATIONS COUNTIES (Ch. 16 new county cannot be assailed in any court by evidence ali- unde.°» In case the de facto doctrine has been applied to counties illegally organized, and the acts of the county offi- cers are declared binding upon the people and territory of such county,^^ a state may be estopped by its repeated acts of recognition of a county from questioning the regularity of the passage of the act creating it.^^ An act creating a new coun^ ty, and embracing therein a portion of an old county before the voters therein had signified their consent as required by the organic law, is void.°^ Legislative Control Legislative control over counties is so complete that it may change the lines between existing counties', take portions of existing counties to create new counties, and dissolve a coun- ty by attaching its territory to other counties.^* This power, however, like all others, must be exercised in the manner and subject to the conditions prescribed by the Constitution; and the failure to comply with a constitutional condition prece- dent will render such act of dissolution or reduction void, and the legal status of the county will be unaffected thereby. °® 50 Fraser v. James, 65 S. C. 78, 43 S. E. 292. See People ex rel. Love V. Nally, 49 Cal. 478. This was a submission to the people of the county of the question of annexation of a portion of an adjoin- ing county. 51 Garfield Tp. v. Flnnup, 8 Kan. App. 771, 61 Pac. 812. 52 People ex rel. Attorney General v. Alturas County, 6 Idaho, 418, 55 Pac. 1067, 44 L. E. A. 122. 5 3 Segars v. Parrott, 54 S. 0. 1, 31 S. E. 677. 64 In re Division of Howard County, 15 Kan. 194. See, also. Opin- ion of Supreme Court Judges on Township Organization Law, 55 Mo. 295 ; Town of Freeport v. Board of Supervisors of Stephenson Coun- ty, 41 111. 495 ; Laramie County v. Albany County, 92 U. S. 307, 23 L. Ed. 552. 5 5 Marion County v. Grundy County, 5 Sneed (Tenn.) 490; Brad- ley V. Com'rs, 2 Humph. 428, 37 Am. Dec. 563; Roane County v. Anderson County, 89 Tenn. 259, 14 S. W. 1079; Union County v. Knox County, 90 Tenn. 541, 18 S. W. 254. §§ 168-169) PKOPKKTY — PUBLIC USE 511 PROPERTY— PUBLIC USE— SOVEREIGN POWER 168. Counties have the implied power, as incidentsil to their objects and existence, to take and hold such real estate as may be essential and useful for county purposes. 169. Such property is held for the public use, and subject to the sovereign power of the state. This power to purchase and hold sufficient real estate to en- able the county to discharge all its public functions is essen- tial to it as an agency of the state for more efficient govern- ment ; and, where the legislature has omitted to give the coun- ty the express power to take and hold necessary real property, the courts readily imply the same as reasonably necessary and proper for the execution of the powers expressly granted, as in case of private corporations. °* This would include in New England, where the county functions are few, such real es- tate as is necessary for the convenience of a courthouse and jail; and in the South, where these functions are most numer- ous, the taking and holding of title to as much realty as may be necessary not only for courthouses and jails, but also for workhouses and poor-farms, reformatories and asylums. °' Legislative Control The county, being only an agency of the state, holds such property for its constituent sovereign, and subordinate to its rights and power of disposition.^' The Legislature, as the trustee for and representative of the general public, has full B6 People V. IngersoU, 58 N. T. 1, 17 Am. Rep. 178; Hay ward v. Davidson, 41 Ind. 212 ; Board of Sup'rs of Warren County v. Patter- son, 56 111. Ill ; Clark, Priv. Corp. §§ 51, 52. 5 7 Board of Sup'rs of Warren County v. Patterson, 56 111. Ill ; Hayward v. Davidson, 41 Ind. 212 ; People v. IngersoU, 58 N. Y. 1, 17 Am. Kep. 178. 5 8 Stone V. City of Charlestown, 114 Mass. 214; People v. Inger- soU, supra ; Smith v. City of Leavenwortli, 15 Kan. 81. 512 QUASI CORPORATIONS COUNTIES (Ch. 16 power and control over the public property held by the^coun- ty.°' The only limitations upon this power are those ex- pressed in the state and federal Constitutions.*" Unless so re- strained, the Legislature may by valid law compel the county to. purchase and hold appropriate and necessary real estate, or may in its discretion compel the sale thereof, and cover the purchase price into the public treasury.'^ GOVERNMENT AND OFFICERS 170. The administration of county affairs is committed by lawr to an official body chosen by the people, and in- vested with discretionary powder necessary for the efficient exercise of their powers, functions, and du- ties; and by whatever name this body may be called, whether supervisors or commissioners, board or court, it constitutes the county govern- ment. Sheriffs, coroners, clerks and other so-called county officers are properly state officers for the county. Their functions and duties pertain chiefly to the affairs of state in the county ; their duties are ministerial, and, though local officers, their duties are performed in the name of the state, and for the general welfare.*^ Certain county duties are connected with these of- fices which pertain to county affairs; but they are usually ministerial only, and do not involve the control or management B9 Jefferson County Com'rs v. People ex rel. Griggs, 5 Neb. 136, wherein it was held that, a county being justly indebted under a contract for the erection of public buildings therein, the Legislature may require it to issue its bonds to pay such indebtedness. 60 Dill. Mun. Corp. § 65 ; State ex rel. Slipp v. McFadden, 23 Minn. 40; State ex rel. Attorney General v. County of Dorsey, 28 Ark. 378. 61 People V. Ingersoll, 58 N. T. 1, 17 Am. Rep. 178; Shanklin v. Madison County Com'rs, 21 Ohio St. 575. 62 BOARD OF COM'RS OF HAMILTON COUNTY v. MIGHELS, 7 Ohio St. 109, Cooley, Cas. Mun. Corp. 4; Tuthill y. City of New York, 29 Misc. Rep. 555, 61 N. Y. Supp. 968; Bouv. Law Diet, sub- § 170) GOVERNMENT AND OFFICEE8 513 of county affairs, which necessarily require the exercise of discretionary power." County Government — Of What Constituted The county government, properly so called, is composed of a board of commissioners, a board of supervisors, or a county court, including the justices of the county, presided over by a chairman chosen by the body, or a county judge elected by the people.** This body resembles a city council or board of al- dermen in a municipality, and in some particulars also a board of directors in a private corporation.®" It directs, manages, and controls the county affairs, and is vested with all neces- sary power and discretion for so doing. ®° These affairs are exclusively public, but are such as pertain peculiarly to local in- terest and welfare of the county, and affect the county rev- enues and treasury. In all such affairs this body governs and controls, and is therefore properly called the county govern- ment." ject "Sheriffs" ; Texas & P. Ry. Co. v. Walker, 93 Tex. 611, 57 S. W. 568. See, also, Bouldin v. Lockhart, 3 Baxt. (Tenn.) 263 ; Braden v. Stumph, 16 Lea (Tenn.) 581 ; Dougherty County v. Kemp, 55 Ga. 252. 83 South V. Maryland,' 18 How: (U. S.) 396, 15 L. Ed. 433 ; Bell y. Mobile & O. Railroad Co., 4 Wall. (U. S.) 598, 18 L. Ed. 338; State V. Colt, 8 Ohio S. & C. P. Dec. 62. 8* Elliott, Mun. Corp. § 5; Kankakee County v. .^tna Life Ins. Co., 106 D. S. 668, 2 Sup. Ct 80, 27 L. Ed. 309 ; Moultrie County v. Rockingham Ten-Cent Sav. Bank, 92 U. S. 631, 23 L. Ed. 631; Shanklin v. Madison County Com'rs, 21 Ohio St. 575. 85 Pegram v. Cleaveland County Com'rs, 65 N. C. 114; Sterling V. Parish of West Feliciana, 26 La. Ann. 59. 66 Shanklin v. Madison County Com'rs, 21 Ohio St. 575; State ex rel. Mason v. Board of County Com'rs of Ormsby County, 7 Nev. 392; Sheboygan County v. Parker, 3 Wall. (U. S.) 93, 18 L. Ed. 33 ; ESell v. Giles County Justices, 3 Head (Tenn.) 586 ; Louisville & N. E, B. Co. V. Davidson Cbunty Court, 1 Sneed (Tenn.) 639, 62 Am. Dec. 424; Bridgenor v. Rodgers, 1 Cold. (Tenn.) 261. 67 Boone, Corp. § 316; Stewart v. Roberts, 1 Yerg. (Tenn.) 389; Maury County v. Lewis County, 1 Swan (Tenn.) 239. COOL.MUN.COEP. — 33 514 QUASI COEPOEATIONS COUNTIES (Ch. 16 POWERS OF COUNTY GOVERNMENT 171. The county government has only such powers as are expressly conferred by statute, or necessarily im- plied therefrom. 172. In the exercise of lawful discretion the county board or court may — (a) Employ attorneys. i (b) Purchase, hold, and sell real estate. (c) Contract for the construction and furnishing of coun- ty buildings. (d) Provide for the support of the poor, and the mainte- nance of county schools. (e) And, generally, contract for any object within the scope of the duties and powers of the county. Chief among the powers of the county government is the power to contract in the name of the county, and for its ben- efit.®' Without this power no business can be wisely trans- acted. The county board or court is general agent and trus- tee for the county in all its affairs.®' It must have general supervision and management of all county affairs, but must necessarily intrust matters of detail to individual attention and personal supervision of its agents. As a general rule, a con- tract on behalf of the county must be made by the body in lawful session.'''' In such case, of course, the memorandum of the contract is written on the minutes ; but it may also con- . 68 Hopkins v. Clayton County, 32 Iowa, 15 ; Ellis v. Waslioe Coun- ty, 7 Nev. 291 ; Montgomery County v. Barber, 45 Ala. 237 ; Babcock V. Goodrich, 47 Cal. 488; Highland County Com'rs v. Rhoades, 26 Ohio St. 411. 6 9 Andrews v. Pratt, 44 Cal. 309; Board of Sup'rs of Richmond County V. Wandel, 6 Lans. (N. Y.) 33 ; Board of Com'rs of Bladen County V. Clarke, 73 N. C. 255. '"Clarke v. Lyon County, 7 Nev. 75; Talbott v. Iberville Parish, 24 La. Ann. 135 ; Mitchell v. Leavenworth County Com'rs, 18 Kan. 188. §§ 171-172) POWERS OF COUNTY GOVERNMENT 515 tract by parol through its agents in small matters^* An un- authorized contract, if within the scope of the county pow- ers, may be made binding by ratification; '= but contracts made beyond the scope of the lawful powers of the county are subject to the general doctrine of ultra vires." In varying but appropriate language the statutes of the states have conferred upon these county governing bodies the power to do such acts as are necessary for the management of the county affairs. This is a general expression covering the implied powers of a corporation, and is probably not essential to clothe the county government with such powers. Having the power to sue and be sued, the county, of course, must be represented by counsel. It has therefore been adjudged in numerous cases that the county government has power in its discretion to employ an attorney to represent and act for the '1 Ring T. Johnson County, 6 Iowa, 265; Montgomery County v. Barber, 45 Ala. 237; Hopkins v. Clayton County, 32 Iowa, 15 ; Bab- cock V. Goodrich, 47 Cal. 488 ; Ellis v. Washoe County, 7 Nev. 291 ; Highland -County Com'rs v. Khoades, 26 Ohio St. 411 ; Beck v. Puck- ett, 2 Tenn. Cas. 490. 72 Hawk V. Marion County, 48 Iowa, 472; Talbott v. Iberville Parish, 24 La. Ann. 135 ; Clarke v. Lyon County, 7 Nev. 75 ; Mitchell V. Leavenworth County Commissioners, 18 Kan. 188. But ratifica- tion cannot validate acts void for want of power. Wallace v. Tip- ton County, 3 Tenn. Cas. 542 ; Colburn v. Chattanooga Western Railroad Co., 94 Tenn. 43, 28 S. W. 298. 7 3 King v. Mahaska County, 75 Iowa, 329, 39 N. W. 636. A con- tract by county authorities for building a courthouse provided that changes thereafter made in the plan, increasing or lessening the cost, should be followed by like changes in the amount to be paid for the building, which was the full sum authorized by vote of the peo- ple under a law requiring the question to be submitted to them. It was held that changes imposing liability for more than the sum voted were void. See, also, Burnett v. Maloney, 97 Tenn. 712, 37 S. W. 689, 34 L. R. A. 541 ; CLAIBORNE "COUNTY v. BROOKS, 111 U.'S. 400, 4 Sup. Ct. 489, 28 L. Ed. 470, Cooley, Cas. Mun. Corp. 366. An agreement between the board of commissioners of a county and an attorney, whereby, in return for services in aiding the state's attorney to collect taxes against railroad lands, he is to receive 25 per cent, of any amount recovered, either in money or lands, out of which one-fifth is to be paid the state's attorney, was held ultra 516 QUASI COEPOEATIONS COUNTIES (Ch. 16 county iri its litigation, actual or prospective ; '* and it may exercise this power even in cases which the law provides shall be prosecuted by the state's attorney.'^ But this employment is not binding beyond the term of office of the board making the contract.'* Buyifig, Holding and Selling Real Estate by County In the due discharge of its public functions it is necessary for the county to have real estate on which to erect county buildings, such as courthouses, jails, workhouses, reforma- tories, and the like. The county court or board, therefore, has power to purchase and hold sufficient real estate on which to erect all necessary public buildings; and, where the support of the poor devolves upon the county, it may also purchase a farm therefor.'" The courthouse and jail must, of course, vires as to the commissioners, and void. Storey v. Murphy, 9 N. D. 115, 81 N. W. 23. In Grannis v. Board of Com'rs of Blue Earth County, 81 Minn. 55, 83 N. W. 495, an agreement between the commissioners and an attorney, under which the attorney was to unearth and bring to light personal property in the county which had not been assessed or taxed for a number of years, in consideration of which service the board of commissioners agreed by resolution to pay him a compen- sation equal to one-half of all taxes paid into the county treasury as the result of his labors, was held to be void, as being ultra vires. See, also, Municipal Security Co. v. Baker County, 39 Or. 396, 65 Pac. 369. But see American Stave & Cooperage Co. v. Butler Co. (0. C.) 93 Fed. 301. ^* Lassen County v. Shinn, 88 Cal. 510, 26 Pac. 365 ; Sterling Gas Co. V. Higby, 134 111. 557, 25 N. E. 660; Ottawa Gaslight & Coke Co. V. People, 138 111. 386, 27 N. E. 924; Franklin County v. Lay- man, 34 111. App. 606; Tatlock v. Louisa County, 46 Iowa, 138; Bevington v. Woodbury County, 107 Iowa, 424, 78 N. W. 222 ; Du- iuth S. S. & A. R. Co. V. Douglass County, 103 Wis. 75, 79 N. W. 34. 76 Jordan v. Osceola Co., 59 Iowa, 389, 13 N. W. 344; Taylor County V. Standley, 79 Iowa, 666, 44 N. W. 911; SterUng Gas Co. V. Higby, 134 111. 557, 25 N. E. 660. T6 Board of Com'rs of Jay County v. Taylor, 123 Ind. 148, 23 N. E. 752, 7 L. E. A. 160; Vacheron v. City of New York, 34 MLsc. Rep. 420, 69 N. Y. Supp. 608. " Holten v. Board of Com'rs of Lake County, 55 Ind. 194, wherein the county commissioners were held to have a prima facie right to purchase land for a home for the county poor. As to power of com- §§ 171-172) POWERS OF COUNTY GOVERNMENT 517 be located at the county seat; but the location of the other buildings, and the situation of the other county real estate, rest in the discretion of the governing body of the county.'* So, also, the amount of real estate necessary for each one of these purposes, and the sum to be paid therefor, lies in the discretion of the county board or court.'* In case the county should contract to purchase land for other than public pur- poses, or to purchase an unreasonable quantity for public pur- poses, such purchase might be enjoined at the suit of the tax- payers as ultra vires, the county authorities having power to purcliase only for public uses, and then only so much as is reasonably necessary.'" Whenever it is necessary the "county may also buy in real estate at execution, foreclosure, or tax missioners of the county to lease premises or rent rooms for county purposes, see Board of Com'rs of Norfolk County v. Cox, 98 Va. 270, 36 S. E. 380 ; Gardner v. Board of Dakota County Com'rs, 21 Minn. 33. But see Ford v. Mayor, etc., of City of New York, 4 Hun (N. T.) 58T ; Stewart v. Otoe County, 2 Neb. 177 ; Thayer v. McGee, 20 Mich. 195. As to employment of a physician for care of the county poor, see Morgan County Com'rs v. Holman, 34 Ind. 256; Board of Com'rs of Perry County v. Lamax (Ind. App.) 31 N. E. 584. 7 8 Board of Sup'rs of Culpeper County v. Gorrell, 20 Grat. (Va.) 484 ; Allen v. Lytle, 114 Ga. 275, 40 S. E. 238. 7 8 Sheidley v. Lynch, 95 Mo. 487, 8 S. W. 434; Lyman v. Gedney, 11* 111. 388, 29 N. E. 282, 55 Am. Rep. 871. 80 Crampton v. Zabriskle, 101 U. S. 601, 25 L. Ed. 1070; Colorado Paving Co. v. Murphy, 78 Fed. 30, 23 C. C. A. 631, 37 L. R. A. 630 ; Davenport v. Buffington, 97 Fed. 237, 38 C. C. A. 453, 46 L. R. A. 377; Burnett v. Abbott, 51 Ind. 254. See, also, Grannis v. Blue Earth County Com'rs, 81 Minn. 55, 83 N. W. 495; Wells v. Pontotoc County, 102 TJ. S. 625, 26 L. Ed. 122 ; Warren County Agricultural Joint Stock Co. V. Barr, 55 Ind. 30; Rothrock v. Carr, 55 Ind. 334; Hooper v. Ely, 46 Mo. 505. As to the purchase of property at an excessive valuation, see State v. Board of Chosen Freeholders, 53 N. J. Law, 531, 22 Atl. 343. An injunction will also lie to restrain the payment of public money for a purpose wherein the commis- sioners are being misled or .defrauded: State ex rel. Fanning v, Cuyahoga County, 9 Ohio S. & C. P. Dec. 76. But in Scalf v. Collins County, 80 Tex. 514, 1^ S. W. 314, an attempt was made to have a conveyance of a homestead to the county set aside on the ground that it was not needed for county buildings or other county, pur- poses. The conveyance was held good. 518 QUASI CORPORATIONS COUNTIES (Ch. 16 sale, for the purpose of saving debts due to it." Property so purchased, unless redeemed, may be sold and transferred by the county, and a good title thereby conveyed.'^ This power is implied in favor of counties equally with other corpora- tions, and for the same reasons.'^ A county may likewise receive and hold property conveyed to it, either by deed or devise in trust, for any public use within the scope of its pow- ers.** Construction of County Buildings The county board or court has likewise authority to .contract for the construction of necessary county buildings and the fur- nishing thereof; and in the absence of statute directing the mode of contracting, as by plans, specifications, and competi- tive bidding, the method of negotiations and contracting is in the discretion of the governing body; and it has been held even, where the statute provides the method of negotiations and contracting, that the county board may in emergency de- part from the statutory method.*' The county board or court 81 Cardwell v. Hargls, 24 Ky. Law Rep. 1406, 71 S. W. 488 ; Shep- ard V. Murray County, 33 Minn. 519, 24 N. W. 291 ; Audubon County V. American Immigrant County, 40 Iowa, 460. 82 Shannon v. O'Boyle, 51 Ind. 565. "All civil corporations, * * * unless expressly restrained by the act which establishes them, or by some subsequent act, have, and always have had, an unlimited control over their respective properties, and may aUenate in fee, or make what estates they please, for years, for life, or In tail, as fully as any individual may do with respect to his own property." 1 Kyd, Corp. 108. 8 3 Clark, Priv. Corp. pp. 142-144; Page County v. American Immi- grant County, 41 Iowa, 115; Linville v. Bohanan, 60 Mo. 554. 84 Bell County v. Alexander, 22 Tex. 350, 73 Am. Dec. 268. In Jackson v. Hartwell, 8 Johns. (N. Y.) 422, it was decided that, while the supervisors of a county, who were made by statute a corpora- tion for special purposes, might take by grant a parcel of land in trust that they might erect a courthouse and jail, these being county purposes, they could not be seised as trustees for the use of an ill- dividual, or in trust for building a church or schoolhouse for the use of the inhabitants of a particular town in the county. See 1 Dill. Mun. Corp. (4th Ed.) §§ 567-574. 8 Board of Com'rs of Harrison County v. Byrne, 67 Ind. 21, where the contractor had abandoned the construction of the county build- §§ 171-172) POWEES OF COUNTY GOVERNMENT ^X^ cannot delegate this power to contract for a public building tq any other person or number of persons.*" Actions , ijpqn claims for extras, swelling the price beyond the contract limit, have been repeatedly sustained in Indiana ; *' and' in Dakota it has been decided that taxpayers of the county cannot enjoin the issuance of warrants in payment of work done in the erection of a courthouse under an unauthorized contract.'^ In the absence of statutory provision, the same general rules control contracts for the erection of any other necessary pub- lic buildings by the county.** Poor, Support of — Schools In many states the support of the poor is a town or town- ship charge ; but in the majority of them this duty is devolved upon the county. In these latter states the county authorities, in addition to purchasing land for a poorhouse and ereqting the same, have power to contract for the ' necessary expense for the support of the poor, including food, clothing, and med- ing, and the county commissioners were held to have the power to take up and finish the work without change of plans or specifica- tions, or the letting of a new contract. See, also, Board of Ooni'rs of CUnton County v. Hill, 122 Ind. 215, 23 N. E. 779. 88 Russell V. Cage, 66 Tex. 428, 1 S. W. 270. Contra, Beck v. Puck- ett, 2 Tenn. Cas. 490, in which the general statement is made that the county court may delegate to a committee its power to make a binding contract pertaining to any matter in which the court might bind the county. 87 Commissioners of Gibson County v. Cincinnati Steam-Heating Co., 128 Ind. 240, 27 N. E. 612, 12 L. R. A. 502 ; Board of Com'rs of Gibson County v. Motherwell Iron & Steel Co., 123 Ind. 364, 24 N. E. 115. 88 Wood V. Bangs, 1 Dak. 179, 46 N. W. 586. See, also, Ferriss V. WilUamson, 8 Bast. (Tenn.) 424. 89 McDonough County v. Thomas, 84 111. App. 408 ; Bradford County V. Horton, 6 Lack. Leg. N. (Pa.) 306 ; Stuart v. Easton, 170 U. S. 383, 18 Sup. Ct. 650, 42 L. Ed. 1078. See, also, CLAIBORNE COUNTY V. BROOKS, 111 U. S. 400, 4 Sup. Ct 489, 28 L. Ed. 470, Cooley, Cas. Mun. Corp. 366; Nelson v. Justices of Carter County, 1 Cold. (Tenn.) 208; and State ex rel. Ross v. Anderson County, 8 Baxt. (Tenn.) 249, wherein it was held that the county cannot Issufe commercial paper. 620 QUASI CORPOKATIONS— COUNTIES (Ch. 16 ical attention.'" In some cases necessaries have been provided in emergency without contract with the proper authority, but the person claiming compensation therefor must prove the necessity.'^ So, also, where schools of any kind are a county charge, it is competent for the county board to contract for the erection of necessary buildings, and for incurring other expenses necessary for the conduct of the schools."'' Other Purposes Other functions are also devolved upon the county in sev- eral of the stated, such as the care of roads, bridges, ferries, and other public concerns. For the necessary construction, maintenance, and r-epair of these utilities, it is competent for the county authorities to enter into contracts and incur lia-. bility on behalf of the county.*' In general, it may be said »« King V. Sullivan County, 8 Baxt. (Tenn.) 329 ; Board of Com'rs of Morgan County v. Sea ton, 90 Ind. 158; Board of Com'rs of Perry County V. Lamax (Ind. App.) 31 N. E. 584; Morgan County v. Sea- ton, 122 Ind. 521, 24 N. E. 213; Board of Com'rs of Orange County V. Ritter, 90 Ind. 862; Smith v. Shawnee County Commissioners, 21 Kan. 669. ei "Tiie function of administering public charities is governmental, and township trustees are agents of the county for that purpose. This agency is created and defined by law, and consequently is of eiuch a character that all are bound to take notice of its scope and limitations. Commissioners of Warren County v. Osburn, 4 Ind. »2 Nashville & C. & St. L. R. Co. v. Franklin County, 5 Lea (Tenn.) 707 ; Shelby County v. Tennessee Centennial Exposition Co., 96 Tenn. 659, 36 S. W. 694, 33 L. R. A. 717 ; McCallle v. Mayor, etc., of Town of Chattanooga, 3 Head (Tenn.) 318; Luttrell v. Knox County, 89 Tenn. 253, 14 S. W. 802. The general statutes of Maryland pro- vided that, where the state school fund was insufficient in any county, it was incumbent upon the county commissioners, on de- mand of the school board, to levy a pro rata tax not exceeding a certain amount on each $100 for school purposes; and a special local statute provided that in Anne Arundel county there might be an additional levy, not exceeding a certain rate, for the purposes of a separate fund, both to be applied by the treasurer for school expenses. It was held that the county commissioners must apply the gross amount of tax levied to the school commissioners, and de- ductions for any other purpose, either as commissions or expenses of gathering the tax, could not be made. Board of County School Com'rs of Anne Arundel County v. Gantt, 73 Md. 521, 21 Atl. 548. 8 Nashville & C. & St. L. R. Co. v. Franklin County, 5 Lea §§ 171-172) POWEES OF COUNTY GOVERNMENT 521 that, wherever the county is endowed with a function or charged with a duty, the county authorities may make con- tracts, in their discretion, for the performance of such func- tions and discharge of such duties, to the end that the pubHc weal and convenience may not suffer;'* but all such con- tracts must be within the method and limits prescribed by statute, otherwise they are subject to be impeached as ultra vires acts."" But by all lawful contracts by the county board or court, within the scope of their authority, and for all emer- gent necessaries for public uses suppUed to the county and received by proper officers, a valid obligation is laid upon the county, which may be enforced by appropriate proceeding, and for the breach of which there is a remedy by action at law.** (Tenn.) 707 ; LuttreU v. Knox County, 89 Tenn. 253, 14 S. W. 802 ; Beck V. Puckett, 2 Tenn. Oas. 490; Shelby County v. Tennessee- Centennial Exposition Co., 96 Tenn. 666, 36 S. W. 694, 33 D. E. A. 717. See, also, Einseidler v. Whitman County, 22 Wash. 388, 60 Pac. 1122, and for powers of county over roads, Ledbetter v. Clarks- ville & R. Turnpike Co., 110 Tenn. 92, 73 S. W. 117. 0* Kelly V. Multnomah County, 18 Or. 356, 22 Pac. 1110, in which the county was held liable for the cost of blankets furnished by the keeper of prisoners confined under criminal process in its jail, the statute maldng it the duty of the keeper to furnish and keep clean necessary bedding for such prisoners, and providing for the charges of safe-keeping and maintaining such prisoners to be paid from the county treasury. But see Warren County Agricultural Joint Stock Co. v. Barr, 55 Ind. 30; Wells v. Pontotoc County, 102 tr. S. 625, 26 L. Ed. 122; Flagg v. Parish of St. Charles, 27 La. Ann. 319 ; Police Jury of Parish of Tensas v. Britton, 15 Wall. 566, 21 L. Ed. 251 ; Commonwealth v. Commissioners of Philadelphia County, 2 Serg. & R. (Pa.) 193; Jackson County v. Rendleman, iOO 111. 379, 39 Am. Rep. 44 ; Henry v. Cohen, 66 Ala. 382; Lewis v. Board of Chosen Freeholders of Hudson County, 37 N. J. Law, 254. OB The county possesses no powers except such as are conferred- expressly or by necessary implication, and these are strictly con- strued. Burnett v. Maloney, 97 Tenn. 712, 37 S. W. 689, 34 L. B. A. 541 ; CLAIBORNE COUNTY v. BROOKS, 111 U. S. 400, 4 Sup. Ct. 489, 28 D. Ed. 470, Cooley, Cas. Mun. Corp. 366; State ex rel. Sharpe v. Puckett, 7 Lea (Tenn.) 709 ; Colburn v. Chattanooga West- ern Railroad Co., 94 Tenn. 43, 28 S. W. 298 ; LouisvUle & N. R. Co. V. Davidson County Court, 1 Sneed (Tenn.) 637, 62 Am. Dec. 424. 88 Gibson County v. Rains, 11 Lea (Tenn.) 20; Taylor v. Mayor^ etc., of City of New York, 82 N. Y. 10 ; Adams v. Tyler, 121 Mass. 522 QUASI CORPORATIONS COUNTIES (Ch. 16 TORTS 173. A county, in the exercise of the governmental functions delegated to it by the state, is not liable for corpo- rate neglect, nor for the misfeasance or negligence of its officers or agents. As we have already seen,'' counties are but subdivisions of the state, erected solely for the exercise of governmental au- thority; and it would be as proper to hold the state as the county liable for the wrongful acts of its officers.** But the sovereign is not liable to action by the citizen unless it chooses to make itself so. Unless, therefore, the state gives a right of action by statute against a county for the nonfeasance or misfeasance of its officers, no such action can be brought.** "No suit can be maintained against the county upon the prin- ciple of respondeat superior, because the relation of master and servant does not exist. County officers are quasi public officers of the state." ^ 380; Commissioners of Roads and Revenues for Floyd County v. Hurd, 49 Ga. 462, 15 Am. Rep. 682. See People ex rel. Lawrence V. Board of Supervisors of Clark County, 50 111. 213; Murphy v. Steele County Commissioners, 14 llinn. 67 (Gil. 51) ; Klein v. Board of Supervisors of Warren County, 51 Miss. 878. As to when man- damus is a proper remedy, see Commissioners' Court v. Moore, 53 Ala. 25. 9 7 Ante, § 166. 98 Wood V. Tipton County, 7 Baxt (Tenn.) 112, 32 Am. Rep. 561; Nashville & K. R. Co. v. Wilson County, 89 Tenn. 597, 15 S. W. 446 ; Hawkins v. Trousdale County Justices, 12 Lea (Tenn.) 356 ; Hollen- ,beck V. Winnebago County, 95 111. 151, 35 Am. Rep. 151. 99 Barbour County v. Horn, 48 Ala. 649 ; MARKEY v. QUEENS COUNTY, 154 N. Y. 675, 49 N. E. 71, 39 L. R. A. 46, Cooley, Cas. Mun. Cprp., 357 ; 1 Beach, Pub. Corp. pp. 744r-746. 1 FRY V. ALBEMARLE COUNTY, 86 Va. 195, 9 S. E. 1004, 19 Am. St. Rep. 879, Cooley, Cas. Mun. Corp. 363. See, also, Dougherty County V. Kemp, 55 Ga. 252. § 174) POWEK OF EMINENT DOMAIN ' 523 POWER OF EMINENT DOMAIN 174. Counties may exercise the sovereign power of eminent domain in taking property for public use, without the consent of the owner, on making due com- pensation therefor. The power of eminent domain has been declared by the courts to be "a necessary and inherent attribute of sovereignty in the state, which does not depend upon constitutional pro- visions for its existence." ^ The county, being an agency of the state to execute the sovereign will and administer public affairs in a part of its territory, must necessarily possess and exercise this power wherein it is charged with public duties. Thus it has been authorized to take private property for the purpose of making public highways, establishing ferries, tak- ing lands for public buildings, and other like works of pub- lic necessity.' Delegation This sovereign power exists primarily, of course, in the leg- islature.* But the Legislature may in its discretion exercise 2 United States v. Jones, 109 TJ. S. 513, 3 Sup. Ct. 346, 27 L. Ed. 1015 ; People v. Mayor, etc., of City of New York, 32 Barb. (N. T.) 102 ; Ealeigli & G. E. Co. v. Davis, 19 N. C. 451 ; Noll v. Dubuque, B. & M. Railroad "Co., 32 Iowa, 66 ; Brown v. Beatty, 34 Miss. 227, 69 Am. Dec. 389. For the distinction between eminent domain and police power, see City of Philadelphia v. Scott, 81 Pa. 80, 22 Am. Rep. 738; Hine v. City of New Haven, 40 Conn. 478; Inhabitants of Watertown v. Mayo, 109 Mass. 315, 12 Am. Rep. 694; King v. Davenport, 98 111. 305, 38 Aija. Rep. 89 ; Vanderbilt v. Adams, 7 Cow. (N. Y.) 349. See, also, Lewis, Em. Dom. §§ 1, 8. s Reeves v. Treasurer of Wood County, 8 Ohio St. 333 ; Inhab- itants of Wayland v. Middlesex County Commissioners, 4 Gray (Mass.) 500 ; Culpeper County Sup'rs v. Gorrell, 20 Grat. (Va.) 484. 4Beekman v. Saratoga & S. Railroad Co., 3 Paige (N. Y.) 45, 22 Am. Dec. 679; Tide- Water Co. v. Coster, 18 N. J. Eq. 518, 90 Am. Dee. 634 ; De Varaigne v. Fox, 2 Blatchf. (U. S.) 95, Fed. Cas. No, 3,836. But see In. re New York Cent. R. Co., 66 N. Y. 407. 524 • QUASI CORPORATIONS COUNTIKS (Ch, 16 this power through a public corporation." ' This power is commonly delegated by statute; expressing the purposes for which it may be exercised, and the mode and manner of exer- cising it, which statute may be either special or general.' But where the county is charged with the performance of public duties, and invested with general powers of performance of acts necessary therefor, the right to acquire land by eminent domain has been held to be an incidental power necessarily im- plied therefrom.^ But such power will be implied only for obvious public purposes, and in cases of plain necessity.* POLICE POWER 175. In many states, counties, as important agencies for the public welfare, are clothed with a limited measure of police power for the public health and safety of the locality. The police power may justly be regarded in America as the supreme exercise of sovereignty. Under it the government may, for the protection of the public, summarily destroy pri- vate property without compensation, and with impunity.® 5 Mercer v. Pittsburgh, Ft. W. & O. Railroad Co., 36 Pa. 99 ; Weir V. St Paul, S. & T. F. Railroad Co., 18 Minn. 155 (Gil. 139); West River Bridge Co. v. Dix, 6 How. (U. S.) 507, 12 L. Ed. 535 ; Harbeck V. City of Toledo, 11 OMo St. 219 ; Eastern R. Co. v. Boston & M. Railroad Co., Ill Mass. 125, 15 Am. Rep. 13 ; Patterson v. Mississippi & R. R. Boom Co., 3 Dill. (U. S.) 465, Fed; Gas. No. 10,829 ; City of East St. liouis v. St. John, 47 111. 463; Barrington v. Neuse River Perry Co., 69 N. C. 165 ; Reddall v. Bryan, 14 Md. 444, 74 Am. Rep. 550 ; Johnson v. Utica Water Works Co., 67 Barb. 415. 6 Buffalo & N. Y. C. R. Co. v. Brainard, 9 N. Y. 100. * Culpeper County Sup'rs v. Qorrell, 20 Grat. (Va.) 484. 8 1 Beach, Pub. Corp. § 665 ; Boone, Corp. §§ 92, 93. » "The destruction of infected trees by order of a public official, after due inspection, is a remedy which, however severe, is ap- propriate to the end in view, and may properly be enforced with- ovit any preliminary judicial inquiry, as well as without any com- pensation to the owner for resulting loss." Baldwin, J., in State § 175) POLICE POWEB I 525 This power is inherent in the state, and may be delegated to public corporations.^" It is usually exercised by state officials, or delegated to municipalities, where dense population re- quires its most frequent exercise. But county governments are often clothed by express statute with poHce power to pro- tect the public health and private property. In ■ cities this power extends to a variety of objects, including the regulation of occupations and amusements, of wharves and markets, and other lawful business, the prohibition of liquor shops and houses of ill fame, and the prevention of fires, and generally the abatement of nuisances.^^ Limited Scope The power is conferred upon counties usually for the' pur- pose of preventing the spread of contagious and infectious diseases, either among people or cattle, thereby preserving the public health and the property of the locality; and where granted by valid statute, there can be no doubt of the lawful possession of the power by the county.^^ Contrary opinions V. Main, 69 Conn. 123, 37 Atl. 80, 36 L. R. A. 623, 61 Am. St. Rep. 30; Bissell v. Davison, 65 Conn. 183, 32 Atl. 348, 29 L. R. A. 251;. Powell v. Pennsylvania, 127 tJ. S. 678, 8 Sup. Ct. 992, 32 L. Ed. 253; Dunbar v. City Council of Augusta, 90 Ga. 390, 17 S. B. 907; Mc- Donald V. City of Red Wing, 13 Minn. 38 (Gil. 25); Cooley, Const. Lim. (4tli Ed.) 746; Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205. 10 Baumgartner v. Hasty, 100 Ind. 575, 50 Am. Rep. 830; King V. Davenport, 98 111. 305, 38 Am. Rep. 89 ; Pratt v. Borough of Litch- field, 62 Conn. 112, 25 Atl. 461. 11 Munn V. Illinois, 94 U. S. 113, 24 L. Ed. 77; People ex rel. Shumway v. Bennett, 29 Mich. 451, 18 Am. Rep. 107; Raymond v. Fish, 51 Conn. 80; 50 Am. Rep. 3; Ogden City v. Mcl/aughlin, 5 Utah, 387, 16 Pac. 721; Odell v. City of Atlanta, 97 Ga. 670, 25 S. E. 173; Crowley ,v. Christensen, 137 U. S. 86, 11 Sup. Ct. 13, 34 L. Ed. 620 ; Robinson v. Mayor, etc., of Town of Franklin, 1 Humph. (Tenn.) 156, 34 Am. Dec. 625 ; Wartman v. City of Philadelphia, 33 Pa. 203. 12 City of Clinton v. Clinton County, 61 Iowa, 205, 16 N. W. 87; Hurst V. Warner, 102 Mich. 238, 60 N. W. 440, 26 L. R. A. 484, 47 Am. St Rep. 525. In California county commissioners are given 526 QUASI COKPORATIONS COUNTIES (Ch. 16 have been expressed by the courts of diflferent states as to the power of the Legislature to devolve upon counties medi- cal treatment of indigent inebriates, such a statute being held valid in Maryland and void in Wisconsin." But there seems to be general assent to the doctrine that statutes are valid which are calculated to preserve the public health and pre- vent the spread of disease, which may destroy not only peo- ple, but also animals and vegetation. In short, saving of life,, whether animal or vegetable, is a lawful purpose of govern- ment; and the police power is appropriate and lawful when- ever it preserves and protects the public against epidemic.^* "Counties are clothed, just as states and commonwealths are, with certain police powers which are not the creatures of leg- islation, and cannot wait upon legislation, but must be as- serted, just as the exigencies of the county demand, but al- ways for public purposes, and within the scope and objects of their organization." ^^ Such paramount police power can, of course, be implied in favor of a county only in case of great emergency, where the state has failed to provide ade- quate sanitary means for the public protection. In such ex- igencies the reasonable exercise of appropriate sanitary meas- power to license and regulate occupations. Los Angeles County v. Eikenberry, 131 Cal. 461, 63 Pac. 766. 13 City of Baltimore v. Keeley Institute, 81 Md. 106, 31 Atl. 437, 27 L. E. A. 647 ; Wisconsin Keeley Institute Co. v. Milwaukee Coun- ty, 95 Wis. 153, 70 N. W. 68, 36 L. R. A. 55, 60 Am. St. Rep. 105. The latter opinion is based upon the idea that this was not a public purpose nor a public act. 1* Slaughter House Cases, 16 Wall. (U. S.) 36, 21 L,. Ed. 394; Town of Greensboro v. Ehrenreich, 80 Ala. 579, 2 South. 725, 60 Am. Rep. 180; City of St. Paul v. Byrnes, 38 Minn. 176, 36 N. W. 449; Belling v. City of Evansville, 144 Ind. 644, ,42 N. E. 621, 35 L. R. A. 272; Markham v. Brown, 37 Ga. 277, 92 Am. Dec. 73; Thom- as V. Town of Mason, 39 W. Va. 526, 20 S. E. 580, 26 L.. R. A. 727 ; Hale V. Houghton, 8 Mich. 458; State v. Wordin, 56 Conn. 216, 14 Atl. 801; Smith v. City of Nashville, 88 Tenn. 464, 12 S. W. 924, 7 L. R. A. 469. 10 Beck V. Puck€tt, 2 Tenn. Cas. 496. § 175) POLICE POWER , ;527 ures by the county authorities finds judicial approval in our courts.^ * Salus populi est suprema lex. 1 The act challenged In this case was a contract made by a coun- ty court with a private person to transcribe and rebind the iregistra- tion books of the county, which had been so charred and injured in a fire as to make this work indispensable to the consulting of the county records by the public. Sneed, J., In delivering the opinion of the court, sustaining the exercise of this power by the county officials, says: "The principle, upon which these police powers are exercised is the safety and welfare of the people, a sort of jus excelsior, that cannot wait upon delay. 'Salus populi est suprema lex.' A ne- cessity which Lord Coke says makes that lawful which seemeth un- lawful. 8 Coke, 68. The law, says Sir Matthew Hale, of a par- ticular time and place. Hale, P. C. 54. A necessity, says Hobart, that even overcomes the law, and defends what it compels. Hob. 144. In times of exigency, such powers have been exercised by pub- lic corporations from immemorial times, and are justified as the necessary incidents of corporate entity." 528 QUASI C*)bPOEATIONS — COUNTIES (Ch. 17 CHAPTER XVII QUASI CORPORATIONS— COUNTIES (Conttnued) 176. County Liabilities. 177. Contracts— Subject-Matter. 178. Forms of Contracts. 179. Borrowing Money. 180. County Bonds. 181. Fiscal Management. 182. Taxation. 183. Same— Legislative Control. COUNTY LIABILITIES 176. Counties, being involuntary civil divisions of the state, created as governmental agencies for purely public purposes, partake of the state's exemption from liability, and can be sued only when that immunity has been waived by the state for the county. The favorite maxim of the common law that there is no wrong without its remedy, is not applicable to counties.^ By another maxim the sovereign was exempt from suit. And so with us the state can only be sued by its express consent ; and counties, being merely parts of the state, partake of that im- munity." The law exempting the sovereign, rather than the 1 Gallia County Com'rs v. Holcomb, 7 Ohio, 232, pt. 1 ; FRY v. ALBEMARLE COUNTY, 86 Va. 195, 9 S. E. 1004, 19 Am. St Rep. 879, Cooley, Oas. Mun. Corp. 363; White v. Commissioners of Chow- an, 90 N. C. 439, 47 Am. Rep. 534; Brabham v. Board of Sup'rs of Hinds County, 54 Miss. 363, 28 Am. Rep. 352; Monroe County v. Flynt, 80 Ga. 489, 6 S. B. 173 ; Schuyler County v. Mercer County, 9 111. (4 Oilman) 20; Ward v. Hartford County, 12 Conn. 404; Hun- saker v. Borden, 5 Cal. 288, 63 Am. Dec. 130; Lyell v. St. Clair Coun- ty, 3 McLean, 580, Fed. Cas. No. 8,621. 2 Watkins v. Walker County, 18 Tex. 585, 70 Am. Dec. 298; Wood V. Tipton County, 7 Baxt. (Tenn.) 112, 32 Am. Rep. 561; Bailey v. Lawrence County, 5 S. D. 393, 59 N. W. 219, 49 Am. St. Rep. 881; § 176) COUNTY LIABILITIES 529 law making the subject liable, is the fundamental law ap- plicable to counties.^ Hence, as we have seen,* the county is exempt from liability for the misfeasance or malfeasance of its officers, unless suit is expressly given by statute therefor. The same general rule prevails also in regard to contracts. Counties^ being created by statute, and receiving all their pow- ers therefrom, are subject only to such liabilities as are im- posed by statute with respect to their powers and functions." Possessing no powers except such as are conferred expressly or by necessary implication, their liabilities are strictly cor- relative. There is no liability resting upon the county, and Commonwealth v. Cominissioners of Huntingdon County, 3 Rawle (Pa.) 487; Wolcott v. Lawrence County, 26 Mo. 272; Raymond v. Stearns County Com'rs, 18 Minn. 60 (Gil. 40); Emerson v. Inhabitants of Washington County, 9 Me. (9 Greenl.) 88; Heller v. Board of Com'rs of Shawnee County, 23 Kan. 128; James v. Conecuh County, 79 Ala. 304 ; Brewster County v. Presidio County, 19 Tex. Civ. App. 638, 48 S. W. 213. 3 Burnett v. Maloney, 97 Tenn. 712, 37 S. Wl 689, 34 L. R. A. 541; Harvey v. Tama County, 46 Iowa, 522; Moon v. Board of Com'rs of Howard County, 97 Ind. 176; Granger v. Pulaski County, 26 Ark. 37; Madden v. Lancaster County, 65 Fed. 191, 12 C. C. A. 566; Eastman V. Clackamas County (C. C.) 32 Fed. 24; Ayers v. Thurston County, 63 Neb. 96, 88 N. W. 178; Board of Com'rs of Greer County v. Wat- son, 7 Okl. 174, 54 Pac. 441. ' 4 Ante, § 173. 5 Board of Jefferson County Sup'rs v. Arrighi, 54 Miss. 668; Saline County V. Wilson, 61 Mo. 237; Brainard v. Kings County, 84 Hun, 290, 32 N. y. Supp. 311; Davis v. Board of Sup'rs of Ontonagon County, 64 Mich. 404, 31 N. W. 405; Morrison v. Board of Com'rs of Decatur County, 16 Ind. App. 317, 44 N. E. 65, 1012^ Keller v. Hyde, 20 Cal. 594 ; Pacific Bridge Co. v. Clackamas County (C. C.) 45 Fed. 217. A county is not liable for damages caused by the negligent con- struction of a ditch by its officers or agents, unless liability is ex- pressly or by necessary Implication imposed by statute. Florla ■ v. Galveston County (Tex. Civ. App.) 55 S. W. 540. Nor for damages ■caused by a mob, though resulting from torts of its officers. See Board of Chosen Freeholders of Sussex County v. Strader, 18 N. J. Law, 108, 35 Am. Dec. 530; Mower v. Inhabitants of Leicester, 9 Mass. 247, 6 Am. Dec. 63; Talbot County Com'rs v. Queen Anne's County Com'rs, 50 Md. 245; Ward v. Hartford County,- 12 Conn. 404; Soper V. Henry County, 26 Iowa, 264. Also Crause v. Harris Coun- ty, 18 Tex. Civ. App. 375, 44 S. W. 616. COOL.MUN.COKP. — 34 530 QUASI CORPOKATIONS COUNTIES (Ch. 17 no right of action against it, except by statutory expression or necessary implication ; * and, with regard to this liability and action based upon statute, the tendency of the court is to apply the rules of strict construction.^ Strict Construction This rule and practice of courts is the key of numerous de- cisions against the validity of claims against counties. Their dominant tone is the protection of the public, and this is low- ered only by some prevailing equity. It pervades decisions on all classes of county claims, including bonds as well as war- rants and accounts. The maxims of the law of agency are rigidly applied. The public is the principal, speaking through the legislature, restrained only by constitutional limitations. The county is the agent of the state, solely for public pur- poses.* The statute is the power of attorney or letter of au- « Wlegel V. Pulaski County, 61 Ark. 74, 32 S. W. 116; Lancaster County V. Fulton, 128 Pa. 48, 18 Atl. 384, 5 L. R. A. 436 ; Borough of Henderson v. Sibley County, 28 Minn. 515, 11 N. W. 91; Allegheny County V. Parrish, 93 Va. 615, 25 S., E. 882 ; Byrne v. East Carroll Parish, 45 La. Ann. 392, 12 South. 521; Lebcher v. Board of Com'rs of Ouster County, 9 Mont. 315, 23 Pac. 713; Board of- Cass' County Com'rs V. Ross, 46 Ind. 404; J'loria v. Galveston County (Tex. Civ. App.) 55 S. W. 545. Counties have been invested with express powers only of limited extent, and in all other matters, including the conservation of high- ways and bridges, being mere divisions organized for the convenient exercise of portions of the political power of the state, are not liable for injuries suffered through their agents in discharging their du- ,ties, unless expressly made liable by statute. MARKEY v. QUEENS COUNTY, 154 N. Y. 675, 49 N. E. 71, 39 L. R. A. 46, Cooley, Cas. Mun. Corp. 357. See, also, as to county liability for defective bridge. Board of Com'rs of Jasper County v. Allman, 142 Ind. 573, 42 N. E. 206, 39 L. R. A. 58 ; Montgomery County Com'rs v. Coffienberry, 14 Ind. App. 701, 42 N. B. 491. 7 Richardson v. Grant County (C. C.) 27 Fed. 495; Hight v. Board of Com'rs of Monroe County, 68 Ind. 575 ; Steines v. Franklin Coun- ty, 48 Mo. 167, 8 Am. Rep. 87; State ex rel. Tread well v. Commission- ers of Hancock County, 11 Ohio St. 183. 8 Savage v.- Bangor, 40 Me. 176, 63 Am. Dec. 658; Browning v. City of Springfield, 17 111. 143, 63 Am. Dec. 345; Highway Com'rs of Nlles Tp. V. Martin, 4 Mich. 557, 69 Am. Dec. 333 ; Lorillard v. Town § 176) COUNTY LIABILITIES 531 thority — in some instances the note of instructions. This is public, and every one dealing with the county must take no- tice of its teiTns and provisions. It is the only warrant of authority to the agent. Outside of it the county has no pow- ■ er to bind the public. The county officials or boards can act as agents only within its limits. Beyond these their agency ceases, and their acts and contracts are void.' Whoever rec- ognizes their assumptions and pretensions of public agency outside of the statutes, and there seeks by contract with them to bind the public to obligations and expose it to liability, does so at his own peril. The courts protect the public against such efforts by a strict construction of the law. The deci- sions are far from harmonious in all particulars, and some of them seem to ignore this cardinal doctrine and underlying theory in the results attained. But none of the courts have avowed a conflicting rule of decision, and the relation of public agency and the rule of strict construction must be re- garded as the settled law of the land with regard to the con- tractual liability of counties.^* of Monroe, 11- N. Y. 392, 62 Am. Dec. 120; Eastman v. Meredith, 36 N. H. 284, 72 Am. Dec. 302. "A county is but an agent of the state, and therefore not liable for interest under general provisions of a statute for payment of interest, but only where it contracts for interest, or is required by a statute to pay the same." Seton v. Hoyt, 34 Or. 266, 55 Pac. 967, 75 Am. St. Rep. 641, 43 L. R. A. 634. It was held in the case of Board of Com'rs of Buncombe County v. Payne, 123 N. C. 432, 31 S. E. 711, that the payment of interest on the bonds of a county doe^not estop the county to deny their validi- ty. See, also, Hughes v. Monroe County, 79 Hun, 120, 29 N. Y. Supp. 495 9 Board of Orange County Com'rs v. Ritter, 90 Ind. 362 ; Smith v. Board of Sup'rs of Barrow County, 44 Wis. 686; Stamp v. Cass County, 47 Mich. 330, 11 N. W. 183; Dennison v. St. Louis County, .33 Mo. 168. One contracting with county commissioners is charged with knowl- edge of the limits of their authority. Lebcher v. Board of Com'rs of Custer County, 9 Mont. 315, 23 Pac. 713. 10 Norton v. Shelby County, 118 U. S. 425, 6 Sup. Ct. 1121, 30 L. Ed 178- Hill v. Memphis, 134 U. S. 198, 10 Sup. Ct 562, 33 L. Ed. 532 QUASI CORPOEATIONS COUNTIES (Ch. 17 CONTRACTS— SUBJECT-MATTER 177. To create contractual obligation on the part of the county, and render it legally liable for indebtedness of any kind, the following elements are usually de- clared by the coiuts as essential requisites: (1) There must be a valid statute or statutes empower- ing the county to contract in regard to the subject- matter of the undertaking. (2) The contract must be confined within the limitations of this statutory authority with reference both to the public objects included in it, and the amount of consideration to be paid therefor. (3) Any condition precedent involving popular consent or approval must be strictly performed or complied with. (4) The contract must be made on the part of the county by the board or officers thereunto, appointed by law, and substantially in the mode prescribed by the statute. The source of contractual powers in a county may be found either in the state Constitution, or in general statutes, or in special laws. When not expressly conferred by these or any of them, authority is often held to exist under the doctrine of implied powers. ^^ But cases are rare in which such implica- 887; Eayburn v. Davis, 2 111. App. 548; Murphy v. Napa County, 20 Cal. 497; Richardson v. Grant County (C. C.) 27 Fed. 495; Board of Shawnee County Com'rs v. Carter, 2 Kan. 115. In two Illinois cases it has been declared by the Supreme Court of that state that it will not imply power in a county to donate money or land to a railroad company from a grant of power to It to subscribe for stock in stich company. Choisser v. People ex rel. Rude, 140 111. 21, 29 N. B. 546; Sampson v. People ex rel. Rich, 140 111. 466, 30 N. E. 689. A county has no power to execute a deed with covenants of warran- ty, no statute conferring such power, and It cannot be implied. Har- rison V. Palo Alto County, 104 Iowa, 383, 73 N. W. 872. ■11 Woods V. Board of Sup'rs of Madison County, 136 N. Y. 411, 32 § 177) dONTBACTS — SUBJBOT-MATTEB , 533 tion is made by the courts in regard to subject-matter. If this cannot be found expressed in special law, or designated in some enumeration of powers, or included within the scope of a general grant of authority to counties, then the contract is beyond the scope of the county's agency, and is therefore void.^^ In these cases the courts apply the maxim, "Expressio unius exclusio alterius," and, in favor of the public, presume against the threatened liability. Limitations as to Objects and Amount In determining the validity of claims against it, the next question for consideration is whether the county has confined its contract to objects appropriate to the subject-matter, and to the amount authorized to be expended for that purpose. Ordinarily counties may not incur an annual indebtedness in excess of annual revenue. Public contracts require ap- propriations, and appropriations require public funds, and the annual expense of the county under general laws must be lim- ited to the annual resources. When special expenditures are to be made for extraordinary purposes, they must be pro- vided for either by an additional tax levy, or by authorized corporate indebtedness, usually in the form of bonds. The amount of this indebtedness is generally fixed in the statute, &nd this is the limit of the authority of the county. Any contract binding the county to a greater expenditure is Void, either in whole, or as to the excess above the statutory limit.^' N. E. 1011 ; Salt Lake County v. Golding, 2 Utah, 319 ; Levy Court V. The Coroner, 2 Wall. (U. S.) 501, 17 L. Ed. 851 ; Grant County v. Lake County, 17 Or. 453, 21 Pac. 447. 12 Cooley, Const. Lim. (6th Ed.) p. 461; Dill. Mun. Corp. § 457. Marsh v. Fulton County, 10 Wall. (TJ. S.) 676, 19 L. Ed. 1040 ; Drift- wood Val. Turnpike Co. v. Board of Com'rs of Bartholomew Couhty, 72 Ind. 226; Maupin v. Franklin County, 67 Mo. 327; Clark \: Polk County, 19 Iowa, 248; Estep v. Keokuk County, 18 Iowa, 199; Board of Tippecanoe County Com'rs v. Cox, 6 Ind. 403; Nashville v. Suth- erland, 92 Tenn. 335, 21 S. W. 674, 19 L. R. A. 619, 36 Am. St. Rep. 88; Pugh V. City of Little Rock, 35 Ark. 75; Cowdrey v. Town of Caneadea (C. C.) 16 Fed. 532; City of Eufaula v. McNab, 67 Ala. 588, 42 Am. Rep. 118. IS King V. Mahaska County, 75 Iowa, 329, 39 N. W. 636 ; Dixon 534 QUASI COEPOEATIONS COUNTIES (Ch. 17 The latter ruling has been made in some cases where the contract was severable. So, also, the contract may embrace with lawful subject-matter other objects not included in the statutory authority, in which case the contract will be void as to all matters dehors the statute; and, unless they are severable from the valid portion of the contract, it will be entirely void.^* Extraordinary Expenditures — Popular Assent Thereto Extraordinary expenditures, such as the removal of a coun- ty seat, involving the construction of new county buildings, the erection of some large public improvement by the county, and especially the subscription of a county subsidy to promote the construction or completion of a railroad, canal, or other public work undertaken by private companies, are rarely, if ever, permitted without popular consent expressed at the bal- lot box. Full and strict compliance with such a condition precedent is a sine qua non to a valid contract upon this sub- ject. The public election must be diily held at the prescribed time throughout the county by the proper officers, and lawful return made, showing the statutory majority required, before the county officers are authorized to bind the county to any expenditure upon the subject.^" The courts evince no dis- position to liberalize the rules of strict construction in this particular. The rule is so inflexible in such case that no tax County V. Field, 111 U. S. 83, 4 Sup. Ct. 315, 28 L. Ed. 360; Daviess County V. Dickinson, 117 U. S. 657, 6 Sup. Ct. 807, 29 L. Ed. 1026; Lake County v. Graham, 130 U. S. 674, 9 Sup. Ct. 654, 32 L. Ed. 1065. A county by receiving benefits, is not estopped to assert the invalidity of warrants issued in excess of the 'constitutional limit of indebted- ness. Municipal Security Co. v. Baker County, 39 Or. 396, 65 Pac. 369. 14 People V. May, 9 Colo. 404, 12 Pac. 838; Hunt v. Fawcett, 8 Wash. 396, 36 Pac. 318. 10 Nelson v. Haywood County, 87 Tenn. 781, 11 S. W. 885, 4 L. R. A. 648; Hobart v. Butte County Sup'rs, 17 Cal. 23; Orooke v. Board of Com'rs of Daviess County, 36 Ind. 320; Colburn v. Chat- tanooga Western R. Co., 94 Tenn. 43, 28 S. W. 298; Allen v. Cerro Gordo County, 34 Iowa, 54; Lewis v. Lofley, 92 Ga. 804, 19 S. E. 57; Dyer v. Erwin, 106 Ga. 845, 33 S. E. 63. § 177) CONTEACTS — SUBJECT-MATTER 535 can be imposed or liability incurred without the consent of the taxpayers. If the legislature requires this as a condition precedent to a contract, the mandate is imperative, and non- compliance with it avoids all contracts based upon it.^' County Liabilities Incurred upon Whose Authority All county liabilities not specially prescribed by law arise in consequence of the act of some board or officer authorized to represent the county and incur the liability. This liability may be contracted by the county board under general authority, or by a committee thereunto lawfully appointed by it, or by some officer duly authorized by statute. In some instances the course of action to be taken by the constituted authority to in- cur the liability is prescribed by the statute. The general rule of law . is that that particular board or officer of the county empowered to do the act or make the contract alone has power to make the county liable. ^^ No other can assume the power and responsibility; he would be a mere volunteer, and could not bind the county by his acts. The method of official action is sometimes so prescribed by the statute as to become ma- terial to the contract. In such case the law must be substan- tially pursued, or the contract will not be binding; ^* as, for 18 Reichard v. Wapren County, 31 Iowa, 381; Lewis v. Bourbon County Com'rs, 12 Kan. 186 ; State, to Use of Neal, v. Saline County Court, 48 Mo. 890, 8 Am. Rep. 108. In Black v. Board of Com'rs of Buncombe County, 129 N. C. 121, 39 S. E. 818, It was ruled that a tax levy for building a courthouse was not such extraordinary expense, within the meaning of the Constitution, as to require its submission to popular vote. But see Dyer v. Erwin, 106 Ga. 845, 33 S. E. 63, where, on full and exhaustive examination, the conclusion was reach- ed as stated in the text. See, also, Locke v. Davison, 111 111. 19. 17 Simmes v. Chicot County, 50 Ark. 566, 9 S. W. 308; Tatlock v. Louisa County, 46 Iowa, 138; Davis v. Linn County, 24 Iowa, 508; Anthony v. Jasper County, 101 U. S. 693, 25 L. Ed. 1005; Merchants' Exchange Nat. Bank v. Bergen County, 115 U. S. 348, 6 Sup. Ct. 88, 29 L. Ed. 430; BROWN v. BON HOMME COUNTY, 1 S. D. 216, 46 N. W. 173, Cooley, Cas. Mun. Corp. 372 ; Chlsholm v. Montgomery, 2 Woods, 584, Fed. Cas. No. 2,686. 18 State ex rel. Reed v. Marion County Com'rs, 21 Kan. 419; Bent- ley V Board of Com'rs of Chisago County, 25 Minn. 259; Head v. Providence Ins. Co., 2 Cranch (U. S.) 127, 2 L. Ed. 229 ; wherein Mar- 536 QUASI CORPORATIONS COUNTIES (Ch. 17 instance, if the statute prescribes that the contract shall be in writing, and shall be signed by specified officers, no action could be maintained upon an oral contract made by the designated officer^s, or written contract signed by other officers, though it be otherwise authorized by, law.^* Illustrations Thus where the chairman of the board of supervisors, who was also ex officio chairman of the building committee, con- tracted with the plaintiffs for materials for a jail upon the credit of the county, but without express authority from the supervisors or the building committee, the court refused to infer the authority of the chairman in the premises, and held the contract void ; ''° and it was held in the same case that a statement by the chairman of the county board, made to the claimant in open session and without objection, that the board could not pay the bill that day, but would do so as soon as the work was accepted, did not constitute a contract binding as an obligation upon the county. And where a coun- ty tax collector employed an attorney to represent the inter- ests of the county, the contract was held void, because that ishall, C. J., declared: "When the law prescribes to the corporation a ■mode of contracting, it must observe that mode, or the Instrument no more creates a contract than if the body had never been incorporat- ed." See, also, Agawam Nat. Bartk v. Inhabitants of South Hadley, 128 Mass. 503. 18 Hasbrouck v. City of Milwaukee, 21 Wis. 217; City of Sacra- mento V. Kirk, 7 Cal. 419; Bonesteel v. Mayor, etc., of City of New York, 22 N: Y. 162 ; O'Hara v. City of New Orleans, 30 La. Ann. 152; Hague V. City of Philadelphia, 48 Pa. 527 ; Starkey v. City of Min- neapolis, 19 Minn. 203 (Gil. 166) ; Lebcher v. Board of Com'rs of Cus- ter County, 9 Mont. 315, 23 Pac. 713. But the ancient formalities in regard to corporation contracts are not now observed or required, even in case of public corporations. Fanning v. Gregoire, 16 How. (U. S.) 524, 14 L. Ed. 1043; Mayor, etc., of City of Chattanooga v. Geiler, 13 Lea (Tenn.) 611; Ross v. City of Madison, 1 Ind. 281, 48 Am. Dec. 361 ; Bellmeyer v. Inde- pendent Dist. of Marshalltown, 44 Iowa, 564 ; City of Alton v. Mul- ledy, 21 111. 76; Montgomery County v. Barber, 45 Ala. 237. 2 Rice V. Plymouth County, 43 Iowa, 136. § 177) OONTKACTS — SUBJECT-MATTER 537 power was vested alone in the county court.*^ So, also, it has been held in Indiana that a promise made by county com- missioners to pay extra compensation for extra work by a contractor on a "free gravel road" was not binding upon the county, because the statute had imposed the expense of con- structing these roads upon the landowners. ^^ In Pennsyl- vania it has been decided that a county is not liable to an inn- keeper for board and lodging of militia called out by the sher- iff to quell a riot and keep the peace, but that the innkeeper must look to the sheriff personally.^* In regard to attor- neys, it has also been held that the county is not liable for one appointed by the court to represent the prosecution in the absence of the county attorney;^* nor when retained by the district attorney to assist him in a state case; "^ nor one ap- pointed by a justice of the peace;''* nor for a special attor- ney to represent the county when there is a regular county attorney; " nor for one assisting in the prosecution of a state case, even when retained by the county commissioners.^* Implied Contracts On the other hand, a county has been held liable in an action of assumpsit for the value of property or services of a person received and appropriated by it, in the absence of any express contract. In such cases, of course, knowledge of the facts must be brought home in due season to the county board in order to fasten liability upon the county.^" But the law will «i Slmmes v. Chicot County, 50 Ark. 566, 9 S. W. 308. ' 22 Little V. Board of Com'rs of Hamilton County, 7 Ind. App. 118, 34 N. E. 499. 2 3 Raush V. Ward, 44 Pa. 389. 24 Miller v. Buena Vista Co., 68 Iowa, 711, 28 N. W. 31. 20 Tatlock V. Louisa County, 46 Iowa, 138. 2 8 Davis V. Linn County, 24 Iowa, 508. 27 Brome v. Cuming County, 31 Neb. 362, 47 N. W. 1050. 28 Storey v. Murphy, 9 N. D. 115, 81 N. W. 23; Modoc County v. Spencer, 103 Cal. 498, 37 Pac. 483. 28 Madison County v. Gibbs, 9 Lea (Tenn.) 383; Butler v. Board of Com'rs of Neosho County, 15 Kan. 178; Brady v. Supervisors of City and County of New Xork, 10 N. Y. 260 ; Montgomery County v. Barber, 45 Ala. 237. 538 QUASI COEPOEATIONS COUNTIES (Ch. 17 not imply a contract in conflict with an express contract,'" nor where an express contract is forbidden.'^ An action will also lie against a county for money had and received under an ultra vires contract, provided the money was applied to a lawful county purpose.'* FORMS OF CONTRACTS 178. If the form of contract, or mode of executing the same, be not prescribed by statute, the contracts of coun- ties may be made in the same way as those of other corporations, and may be either in writing or by pcwol. Important county contracts, requiring the exercise of discre- tion, must, of course, be made by the governing board of the county, whether it be court, commissioners, supervisors, free- holders, or police juries. Such boards .are required to keep a record of their proceedings and it has been held that their ac- 30 Emerson t. Inhabitants of Washington County, 9 Me. (9 Greenl.) 95; Young v. Iberville Parish, 22 La. Ann. 87. 81 Hovey v. Board of Com'rs of Wyandotte County, 56 Kan. 577, 44 Pac. 17 ; Richardson v. Grant County (C. C.) 27 Fed. 495 ; Argentl V. City of San Francisco, 16 Cal. 255; McDonald v. Mayor, etc., of City of New York, 68 N. Y. 23, 23 Am. Rep. 144; Burrill v. Boston, 2 CUfC. 590, Fed. Cas. No. 2,198 ; The Collector v. Hubbard, 12 Wall. (U. S.) 1, 20 Lr. Ed. 272 ; Murphy v. City of Louisville, 9 Bush (Ky.) 189; CurUs v. Fiedler, 2 Black (U. S.) 478, 17 L. Ed. 273; Thomas v. Richmond, 12 Wall. (U. S.) 349, 20 L. Ed. 453; Paul v. City of Ken- osha, 22 Wis. 266, 94 Am. Rep. 598. 3 2 Peed V. McCrary, 94 Ga. 487, 21 S. E. 232; Borough of Hen- derson V. Sibley County, 28 Minn. 515, 11 N. W. 91 ; Marsh v. Ful- ton County, 10 Wall. (U. S.) 676, 19 L. Ed. 1040 ; Waitz v. Ormsby County, 1 Nev. 370; Dowell v. City of Portland, 13 Or. 248, 10 Pac. 308 ; ALLEN v. INTENDANT & COUNCILMEN OF CITY OF LA FAYETTE, 89 Ala. 641, 8 South. 30, 9 L. R. A. 497, Cooley, Cas. Mun. Corp. 303; Chapman y. Douglas County, 107 U. S. 348, 2 Sup. Ct. 62, 27 L. Ed. 378 ; Morton v. City of Nevada (C. C.) 41 Fed. 582. § 178) FORMS OF CONTKA0T3 539 tion as a board can be proven only by the record.'' In other cases proof has been admitted of the oral declarations of the chairman made in open session to the contractor.'* The ques- tion of the contract is thus made to turn upon the rules of evi- dence. The rule enforced in the courts seems to be that strict proof will be required of persons suing the county upon a contract wholly executory.'" But if under a contract infor- mally made, the county has received the benefits contracted for, either in property or services, and the matter is within the scope of the county's authority, formal proof will not be re- quired; thus following the rule applied to private corpora- tions." 33 Rich V. Town of Mentz, 134 TJ. S. 632, 10 Sup. Ct. 610, 33 L. Ed. 1074 ; Cowdrey v. Town of Caneadea (C. C.) 16 Fed. 532 ; Crump v. Board of Sup'rs of Colfax County, 52 Miss. lOT; People v. Board of Sup'rs of Fulton County, 14 Barb. (N. Y.) 56. But the contrary rule Is the prevailing one. United States Bank v. Dandridge, 12 Wheat. (U. S.) 64, 6 I.. Ed. 552; Wayne County v. City of Detroit, 17 Mich. 390; Bank of Columbia v. Patterson, 7 Cranch (U. S.) 299, 3 L. Ed. 351; Gassett v. Town of Andover, 21 Vt. 342. In Kentucky it has been held that where bodies like the county court have judicial powers, and also large administrative and ex- ecutive powers, and are by law enipowered to employ agents in the execution of the latter branch of powers, the acts of the agents are not In every case required to appear of record. 3* Rice V. Plymouth County, 43 Iowa, 136; Curtis v. Cass County, 49 Iowa, 421.. See Gordon v. Denton County (Tex. Civ. App.) 48 S. W. 737. 35 Starkey v. City of Minneapolis, 19 Minn. 203 (Gil. 166); Gil- bert V. City of New Haven, 40 Conn. 102; Board of Huntington Coun- ty Com'rs V. Boyle, 9 Ind. 296. seDowell v. City of Portland, 13 Or. 248, 10 Pac. 308; Mott v. Hicks, 1 Cow. (N. Y.) 513, 13 Am. Dec. 550; State Board of Educa- tion V. City of Aberdeen, 56 Miss. 518; Wayne County v. City of De- troit, 17 Mich. 390; Inhabitants of Adams v. Farnsworth, 15 Gray (Mass.) 423; Taylor v. Lambertville, 43 N. J. Eq. 107, 10 Atl. 809; Dauphin County v. Bridenhart, 16 Pa. 458 ; Ring v. Johnson County, 6 Iowa, 265 ; Montgomery County v. Barber, 45 Ala. 237. If a county obtains the money or property of others without authority, the law, independently of statute, will compel restitution or compensation. Marsh v. Fulton County, 10 Wall. (U. S.) 676, 19 L. Ed. 1040 ; City of Louisiana v. Wood, 102 U. S. 294, 26 L. Ed. 153. 540 QUASI CORPORATIONS COUNTIES (Ch. 17 Agency — Ratifica Hon In minor contracts relating to small matters of detail enter- ing into current expenses of the county, and in purely minis- terial matters where official discretion is not required, con- tracts may be by parol, and may be made by agents or em- ployes under special or general authority.^ ^ In these cases the general doctrines of the law of agency are controlling, and, in matters within the scope of the county purposes, con- tracts originally unauthorized may become valid and binding by ratification, so as to render the county liable thereon.'* But ratification will not validate even an executed contract pertaining to matters beyond the limit of the county author- ity/" 8 T City of Alton v. Mulledy, 21 111. 76; Abby v. Billups, 35 Miss. 618, 72 Am. Dec. 143; Bank of Columbia v. Patterson, 7 Crancli (U. S.) 299, 3 L. Ed. 351; Fanning v. Gregoire, 16 How. (U. S.) 524, 14 L. Ed. 1043. See, also, Schuylkill County Com'rs v. Snyder, 20 Pa. Co. Ct. R. 649 ; Hanley v. Randolph County Court, 50 W. Va. 439, 40 S. E. 389; Black v. Board of Com'rs of Buncombe County, 129 N. C. 121, 39 S. E. 818 ; Steiner v. Polk County, 40 Or. 124, 66 Pac. 707, where a county judge advised that a wounded pauper be taken to the hospital for treatment, and requested a physician to attend him and present his bill to the county court. The court allowed bills for care) board, and hospital charges, and it was held that such action constituted a ratification of the arrangement made by the judge, so as to render the county liable for the value of the physician's serv- ices. See Duncombe v. City of Ft. Dodge, 38 Iowa, 281. ' 88 Schmidt v. Stearns County, 34 Minn. 112, 24 N. W. 358; Mor- ris County Com'rs v. Hinchman, 31 Kan. 729, 3 Pac. 504; Clarke v. Lyon County, 8 Nev. 181 ; Mills v. Gleason, 11 Wis. 470, 78 Am. Dec. ' 721; City of Galveston v. Morton, 58 Tex. 409; Wilhelm v. Cedar County, 50 Iowa, 254; Otoe County v. Baldwin, 111 U. S. 1, 4 Sup. Ct. 265, 28 L. Ed. 331 ; BROWN v. BON HOMME COUNTY, 1 S. D. 216, 46 N. W. 173, Cooley, Cas. Mun. Corp. 372. In Grenada County Sup'rs V. Brown, 112 U. S. 261, 5 Sup. Ct. 125, 28 L. Ed. 704, it was declared that a subscription to the stock of a railway company, or in aid of the construction of a railroad, made without authority pre- viously conferred, may be confirmed and legalized by subsequent en- actment, when legislation of that character Is not prohibited by the Constitution, and when that which is done would have been legal, had it been done under legislative sanction previously given. 3 8 Board of Jefferson County Sup'rs v. Arrighl, 54 Miss. 668 ; Marsh v. Fulton County, 10 Wall. (U. S.) 676, 19 L. Ed. 1040 ; City of Bryan § 179) BOEKOWING MOKEY 541 BORROWING MONEY 179. Liability cannot be fixed upon a county for money bor- rowed in its name without statutory authority. This rule applies to all cases of borrowing, even though the money borrowed be applied to strictly public purposes, and be within the scope of the county government.*" In this respect the county is wholly unlike the private corporation. Not be- ing for private profit, but solely for public use, it cannot en- gage in business ventures. Power to borrow money is not im- plied as an inherent power of a quasi corporation.*^ Public V. Page, 51 Tex. 532, 32 Am. Rep. 637; Brown v. Mayor, etc., of City of New York, 63 N. Y. 239; Scott's Ex'rs v. City of Slireveport (C. C.) 20 Fed. 714; GREEN v. CITY OF CAPE MAY, 41 N. J. Law, 46, Coojey, Cas. Mun. Corp. 99. A county cannot ratify a contract to pay for extra materials and labor furnished to complete a county build- tag, the value of which exceeded the statutory limit, which contract was void for the failure of the county commissioners to advertise for bids in the performance of such labor and furnishing of such mate- rials. TuUock V. Webster County, 46 Neb. 211, 64 N. W. 705; Da- viess County V. Dickinson, 117 U. S. 657, 6 Sup. Ct. 897, 29 L. Ed. 1026. 40 Goodnow V. Board of Com'rs of Ramsey County, 11 Minn. 31 (Gil. 12) ; Police Jury of Parish of Tensas v. Britton, 15 Wall. (U. S.) 566, 21,ri. Ed. 251; Duke v. Williamsburg County, 21 S. C. 414; Lew- is V. Board of Com'rs of Sherman County (C. C.) 5 Fed. 269; Curtis v. Leavitt, 15 N. Y. 9 ; Swackhamer v. Town of Hackettstown, 37 N. J. Law, 191; Gause v. Clarksville, 5 Dill. 165, Fed. Cas. No. 5,276; Robertson v. Breedlove, 61 Tex. 316; Nashville v. Ray, 19 Wall. (U. , S.) 468, 22 L. Ed. 164; Knapp v. Mayor, etc., of City of Hoboken, 39 N. J. Law, 394 ; Shirk v. Pulaski County, 4 Dill. 209, Fed. Cas. No. 12,794; Thomas v. City of Port Huron, 27 Mich. 320. See, contra, Mills V. Gleason, 11 Wis. 470, 78 Am. Dec. 721; President, etc., of Bank of Chillicothe v. Mayor, etc., of Town of Chlllicothe, 7 Ohio, 31, pt. 2, 30 Am. Dec. 185; Miller v. Board of Com'rs of Dearborn County, 66 Ind. 162. But see 1 Dill. Mun. Corp. §§ 117, 121-126. 41 CLAIBORNE COUNTY v. BROOKS, 111 U. S. 400, 4 Sup. Ct. 489, 28 L. Ed. 470, Cooley, Cas. Mun. Corp. 366; Police Jury of Par- ish of Tensas v. Britton, 15 Wall. (U. S.) 566, 21 L. Ed. 251. See, also, Lynde v. Winnebago County, 16 Wall. (U. S.) 6, 21 L. Ed. 272, where the county had express legislative authority to borrow money for the erection of public buildings, when authorized by the voters 542 QUASI CORPORATIONS COUNTIES (Ch. 17 revenues are provided for its necessary expenses, and the wholesome rule prevails that a county must live within its means. Annual appropriations must not exceed annual rev- enues. If emergencies arise requiring extraordinary expendi- ture for the public good, resort must then be had to such ex- traordinary means as the legislature may provide. Most states have permanent general statutes providing for exi- gencies of frequent occurrence in the counties, such as the erection of costly public buildings, the purchase of expensive property for public use, the construction of some great public improvement within the sphere of county purposes, and also subscriptions in aid of quasi public corporations. In such cases power to borrow money is generally conditioned upon popular approval by public election. But unless forbidden by the Constitution, the Legislature may grant this power with- out popular cdnsent,*^ and either by general legislation or by special act in favor of a particular county or class of coun- ties. There are cases, however, holding counties liable for money loaned to the county and used by it strictly for county at an election called for the purpose. In Claiborne County v. Brooks the court also declared that the power to issue negotiable paper can- not be conceded to counties and townships, which are political divi- sions, unless it is authorized by express legislation or by very strong implication. See, also, City of St. Louis v. Alexander, 23 Mo. 483; Thompson v. Lee County, 3 Wall. (U. S.) 327, 18 L. Ed. 177; 1 Dill. Mun. Corp. §§ 117-125; Combs v. Letcher County, 107 Ky. 379, 54 S. W. 177. * 2 Allen V. Cerro Gordo County, 34 Iowa, 54; Crooke v. Board of Com'rs of Daviess County, 36 Ind. 320; Hobart v. Butte County Sup'rs, 17 Cal. 23; Pauly Jail Bldg. & Mfg. Co. v. Board of Com'rs of Kearney County, 68 Fed. 171, 15 C. C. A. 351 ; Hefferlin v. Cham- bers, 16 Mont. 349, 40 Pac. 787. The Iowa Code provides for the sub- mission to the people of the question of expenditure for a county building of a sum over $5,000, involving the levy of a tax, and renders the county supervisors incompetent to act in the erection of a build- ing to cost more than that amount. It was held that, where there was money in the county treasury sufficient to pay the expense of the erection of a proposed county building, It is not necessary to sub- mit the question of a tax levy to the people of the county. Miller 7. Merriam, 94 Iowa, 126, 62 N. W. 689. § 179) BORKOWING MONEY 543 purposes, notwithstanding the contract was ultra vires; the action in such case not being upon the express contract, but for money had and received to the use of the county.*^ County Paper As a corollary of the above doctrine on borrowing money, it is held that counties cannot issue negotiable paper without leg- islative authority.** County warrants, in whatever form, drawn by the proper officer upon the county treasurer, or notes or duebills issued in the current business of the county, evi- dencing county obligations, are not public securities or nego- tiable instruments,*'' and do not, therefore, come within the provision of the law pertaining to those subjects. Generally *3 Borough of Henderson v. Sibley County, 28 Minn. 515, 11 N. W. 91; Gray v. Board of Sup'rs of Tompkins County, 93 N. Y. 603; Stamp V. Cass County, 47 Mich. 330, 11 N. W. 183 ; State, to Use of Neal, V. Saline County Court, 48 Mo. 390, 8 Am. Rep. 108 ; Argenti v. City of San Francisco, 16 Cal. 255 ; Dowell v. City of Portland, 13 Or. 248, 10 Pac. 308; Board of Sup'rs of Sangamon County v; City of Springfield, 63 111. 66 ; Richardson v. County of Grant (0. C.) 27 Fed. 495; Lynde v. Winnebago County, 16 Wall. (U. S.) 6, 21 L. Ed. 272; CLAIBORNE COUNTY v. BROOKS, 111 U. S. 400, 4 Sup. Ct. 489, 28 L. Ed. 470, Cooley, Cas. Mun. Corp. 366. a CLAIBORNE COUNTY v. BROOKS, 111 U. S. 400, 4 Sup. Ct. 489, 28 L. Ed. 470, Cooley, Cas. Mun. Corp. 366; Goodnow v. Board of Com'rs of Ramsey County, 11 Minn. 31 (Gil. 12); Kirkbride v. Lafayette County, 108 U. S. 208, 2 Sup. Ct. 501, 27 L. Ed. 705; Clay V. Nicholas County Court, 4 Bush (Ky.) 154; Hawkins v. Board of Sup'rs of Carroll County, 50 Miss. 735; Board of Com'rs of Dela- ware County V. McClintock, 51 Ind. 325; Mercer County v. Hackett, 1 Wall. (U. S.) 83, 17 L. Ed. 548; Clapp v. Cedar County, 5 Iowa, 15, 68 Am. Dec. 678 ; Thompson v. Lee County, 3 Wall. (U. S.) 327, 18 L. Ed. 177; Police Jury of Tensas Parish y. Britton, 15 Wall. (U. S.) 566 21' L. Ed. 251; Marshall County Sup'rs v. Cook, 38 111. 44, 87 Am. Dec. 282; Ball v. Presidio County, 88 Tex. 60, 29 S. W. 1042; Colburn v. Chattanooga Western R. Co., 94 Tenn. 43, 28 S. W. 298. 45 Clark V. Polk County, 19 Iowa, 248; People ex rel. Raun v. Board of Sup'rs of El Dorado County, 11 Cal. 170 ; Crawford Coun- ty V. Wilson, 7 Ark. 214; Campbell v. Polk County, 3 Iowa, 467; Board of Com'rs of Floyd County v. Day, 19 Ind. 450 ; International Bank of St. Louis v. Franklin County, 65 Mo. 105, 27 Am. Rep. 261; Carroll County v. United States ex rel. Reynolds, 18 Wall. (U. S.) 71 21 L. Ed. 771; Shirk v. Pulaski County, 4 Dill. 209, Fed. Cas. No. 12794; Bauer v. Franklin County, 51 Mo. 205; Erskine v. Steele 544 QUASI CORPORATIONS COUNTIES (Ch. 17 they are held not to bear interest," whatever may be their form, and, in the hands of assignees or indorsees, are subject to all. defenses, legal and equitable, which the county would, have against them in the hands of the original payee.*' COUNTY BONDS 180. County bonds, when duly authorized by valid statute, and issued by proper coimty officers in substantial compliance with the terms and conditions of the statute, impose a legal liability upon the county, arid, like other negotiable paper, are subject to the rules of the law of negotiable instruments. The term "cgunty bonds" is commonly used to include all written promises to pay money executed by a county which, if made by individuals, ' would be called "promissory notes." County, 4 N. D. 339, 60 N. W: 1050, 28 L. K. A. 645; McPeeters v. Blankenship, 123 N. C. 651, 31 S. E. .876. * 6 Camp V. Knox County, 3 Lea (Tenn.) 199; Gibson County v. Rains, 11 Lea (Tenn.) 22; Robbins v. Lincoln County Court, 3 Mo. 57; South Park Com'rs v. Dunlevy, 91 111. 49 ; People ex rel. Peoria & O. R. Co. V. Tazewell County, 22 111. 147; Madison County v. Bart- lett, 1 Scam. (111.) 67; Rogers v. Lee County, 1 Dill. 529, Fed. Cas. No. 12,013; HoUingswortli v. Detroit, 3 McLean, 472, Fed. Cas. No 6,613. *T Garner v. State, 5 Lea (Tenn.) 216; Goyne v. Ashley County, 31 Ark. 552 ; Bauer v. Franklin County, 51 Mo. 205; United States ex , rel. Carhart v. Miller County, 4 Dill. 233, Fed. Cas. No. 15,776; Shirk V. Pulaski County, 4 Dill. 209, Fed. Cas. No. 12,794; Carroll County V. United States, 18 Wall. (U. S.) 71, 21 L. Ed. 771 ; Gibson County V. Rains, 11 Lea (Tenn.) 22; Ouachita County v. Wolcott, 103 U. S 559, 26 L. Ed. 505; Wall v. Monroe County, 103 U. S. 74, 26 L. Ed. 430 ; Jerome v. Commissioners of Rio Grande County (C. C.) 18 Fed. 873. See, also, Police Jury of Tensas Parish v. Britton, 15 Wall. (U. S.) 566, 21 L. Ed. 251; CLAIBORNE COUNTY v. BROOKS, 111 U. S. 400, 4 Sup. Ct. 489, 28 L. Ed. 470, Cooley, Cas. Mun. Corp. 366; Goodnow V. Board of Com'rs of Ramsey County, 11 Minn. 31 (Gil. 12) ; Hyde v. Franklin County, 27 Vt. 185; Erskine v. Steele County, 4 N. D. 339, 60 N. W. 1050, 28 L. R. A. 645; Bardsleyv. Sternberg, 17 Wash. 243, 49 Pac. 499. But they have been held so far negotia- § 180) ' COUNTY BONDS 545 The nature and extent of the obligation is shown in the face of the paper. The bond is executed by the county authorities as agents of the county. Their power depends upon the statutes. It may appear in the statute authorizing the issuance of the bonds, and designating the officer appointed to perform this function ; or the agency for this purpose may be expressed in the general statutes. Legal appointment of the officer to this duty is essential to the validity of the bonds.** Unless he be the agent of the county for this purpose, he cannot bind his principal. Within the scope of his agency, the county is bound by his official action. Mere irregularities will not affect the validity of the bonds.*^ The fundamental question is the power of the county to issue the bonds. Having this power, it is the business of the county and its officers to execute it in a proper manner. It is not required of a bona fide pur- chaser that he shall go outside the record and inquire wheth- er the agent has pursued his instructions, provided his act ble as to render parties indorsing them liable as indorsers. Camp- bell V. Polk County, 49 Mo. 214; State ex rel. Livesay v. Harrison, 99 Mo. App. 57, 72 S. W. 469. 18 Anthony v. Jasper County, 101 U. S. 693, 25 L. Ed. 1005; BROWN V. BON HOMME COUNTY, 1 S. D. 216, 46 N. W. 173, Cooley, Gas. Mun. Corp. 372 ; Merchants' Exch. Nat. Bank v. Bergen County, 115 U. S. 384, 6 Sup. Ct. 88, 29 L. Ed. '430; Coler v. City of Cleburne, 131 U. S. 162, 9 Sup. Ct. 720, 33 L. Ed. 146 ; Chisholm v. Montgomery, 2 Woods, 584, Fed. Cas. No. 2,686. The Supreme Court of Tennessee having decided the board of commissioners of Shelby county to have been an unauthorized and illegal body, it was held, in an action on certain bonds issued by said board, that the power of de facto offi- cers could not be invoked in the plaintiff's aid,, as there could be no officers de facto where there is no office de jure, and the facts failed to show any ratification by the county. Norton v. Shelby County, 118 U. S. 425, 6 Sup! Ct. 1121, 30 L. Ed. 178. See, also, Daviess Coun- ty V. Dickinson, 117 U. S. 657, 6 Sup. Ct. 897, 29 L. Ed. 1026. *8 Maddox v. Graham, 2 Mete. (Ky.) 56; City of San Antonio v. Lane, 32 Tex. 405; Danieliy v. Cabaniss, 52 Ga. 211; Anderson v. Santa Anna Tp., 116 U. S. 356, 6 Sup. Ct. 413, 29 L. Ed. 633 ; BROWN V. BON HOMME COUNTY, 1 S. D. 216, 46 N. W. 173, Cooley, Cas. Mun. Corp. 372; Potter v. Lainhart, 44 Fla. 647, 33 South. 251; Otc^ County V. Baldwin, 111 U. S. 1, 4 Sup. Ct. 265, 28 L. Ed. 331. COOL.MUN.COKP. — 35 546 ' QUASI CORPORATIONS COUNTIES (Ch 17 be within the scope of his authority /J" The general doctrines of agency apply to county bonds. If upon their face they appear to be in pursuance of the authority lawfully conferred, a purchaser in good faith may assume compliance with in- structions by the agent. The bad faith or misconduct of the duly authorized agent is the misfortune of his principal, and is not visited by the law upon an innocent third party. °^ Authority — Indispensable Payment of county bonds is ordinarily resisted (1) for want of authority in the county to execute the bonds; (2) for il- legal exercise of the authority. The first objection, if well made, is always fatal. ^^ Even a bona fide holder for value 5 Carroll County v. Smith, 111 U. S. 556, 4 Sup. Ct. 539, 28 L. Ed. 517; Cromwell v. Sac County, 96 U. S. 58, 24 L. Ed. 681; Knox Coun- ty V. Aspinwall, 21 How. (U. S.) 539, 16 L. Ed. 208 ; Scotland County v. Hill, 132 U. S. 107, 10 Sup. Ct. 26, 33 L. Ed. 261 ; Manhattan Co. v. City of Ironwood, 74 Fed; 535, 20 C. C- A. 642 ; City of Evansville v. Dennett, 161 U. S. 434, 16 Sup. Ct. 618, 40 L. EG. 760; Board of Com'rs of Comanche County v. Lewis, 133 U. S. 198, 10 Sup. Ct. 286,, 33 L. Ed. 604. Where refunding bonds, payable to bearer, recite that they are issued in conformity with an act authorizing the county to issue such bonds and provide for retirement of outstanding bonds, a purchaser is not bound to investigate the nature of the refunded indebtedness. Ashley v. Board of Sup'rs of Presque Isle County, 8 C. C. A. 455, 60 Fed. 55. See Territory ex rel. Jones v. Hopkins, 9 Okl. 133, 59 Pac. 976. As to recitals other than upon the face of the bonds, as a certificate indorsed on the bond to the effect that the re- quirements had been complied with in their issuance, see BoUes v. Perry County, 92 Fed. 479, 34 C. C. A. 478. Where county officers is- sue their obligations, it will be presumed that they were issued for lawful corporate purposes, within the scope of the officers' powers. Board of Com'rs of Custer County v. 'De Lana, 8 Okl. 213, 57 Pac. 162. 51 Moran v. Miami County, 67 U. S. (2 Black.) 722, 17 L. Ed. 342; Moultrie County v. Rockingham Ten-Cent Say. Bank, 92 U. S. 631, 23 L. Ed. 631; Town of Coloma v. Eaves^92 D. S. 484, 23 L. Ed. 579; Town of Pana v. Bowler, 107 U. S. 529, 2 Sup. Ct. 704, 27 L. Ed. 424 ; Dixon County v. Field, 111 U. S. 83, 4 Sup. Ct. 315, 28 L. Ed. 360 ; BROWN v. BON HOMME COUNTY, 1 S. D. 216, 46 N. W. 173, Cooley, Cas. Mun. Corp. 372; Wesson v. Saline County, 73 Fed. 917, 20 C. C. A. 227 ; Belo v. Forsyth County Com'rs, 76 N. C. 489. "Marsh v. Fulton County, 10 Wall. (U. S.) 676, 19 L. Ed. 1040; CLAIBORNE COUNTY v. BROOKS, 111 U. S. 400, 4 Sup. Ct. 489, § 180) COUNTY BONDS 547 cannot withstand it." The bond is void. Ratification cannot vahdate it.°* Estoppel cannot be invoked to save it.'° Un- less the state has conferred vipon the county authority to im- pose this liability upon its people and property, the bond places 'no obligation upon them, and cannot be enforced by any ju- dicial tribunal. Such an unauthorized instrument is, in the view of the law, like a piece of blank paper, and no merit or good faith of the holder can give it vitality or legal obli- gation. If, therefore, there be no statute or constitutional provision empowering the county to make the bond,°'' or if the statute be unconstitutional,"' or if the purpose for which 28 L. Ed. 470, Cooley, Cas. Mun. Corp. 366; Blair v. Cuming County, 111 U. S. 363, 4 Sup. Ct. 449, 28 L. Ed. 457 ; Wells v. Pontotoc Coun- ty, 102 U. S. 625, 26 L. Ed. 122 ; Clay v. Nicholas County Court, 4 Bush (Ky.) 154. 5 3 Ogden V. Daviess County, 102 U. S. 634, 26 L. Ed. 263; Wells V. Pontotoc County, 102 U. S. 625, 26 L. Ed. 122; Harshman v. Bates County, 92 U. S. 569, 23 L. Ed. 747; Bates County v. Winters, 112 U. S. 325, 5 Sup. Ct. 157, 28 L. Ed. 744; English v.' Chicot County, 26 Ark. 454. The cases in this and the previous note establish the doc- trine that the authority to issue bonds for strictly county purposes may be implied from general or special power conferred by statute on the county. Authority to issue bonds in aid of railroads or other works of public nature must be expressly conferred by statute. 5* Daviess County v. Dickinson, 117 U. S. 657, 6 Sup. Ct. 897, 29 L. Ed. 1026 ; City of Ottawa v. Carey, 108 U. S. 110, 2 Sup. Ct. 631, 27 li. Ed. 669; Mills v. Gleason, 11 Wis. 470, 78 Am. D«c. 721; Rus- seU v. Place, 94 U. S. 606, 24 L. Ed. 214; Kelley v. Town of Milan, 127 tJ. S. 139, 8 Sup. Ct. 1101, 32 L. Ed. 77 ; Coleman v. Broad River Tp., 50 S. C. 321, 27 S. E. 774. 5 5 Marsh v. Fulton County, 10 Wall. (U. S.) 676, 19 L. Ed. 1040; Citizens' Savings & Loan Ass'n v. Topeka, 20 Wall. (U. S.) 655, 22 L. Ed. 455 ; Williamson v. City of Keokuk, 44 Iowa, 88; Bissell v. City of Kankakee, 64 111. 249, 21 Am. Rep. 554 ; Town of Douglass V. Niantic Savings Bank, 97 111. 228; Lamoille Val. R. Co. v. Select- men, etc., of Town of Fairfield, 51 Vt. 257. 5 6 CLAIBOPvNE COUNTY v. BROOKS, 111 U. S. 400, 4 Sup. Ct. 489, 28. L. Ed. 470, Cooley, Cas. Mun. Corp. 366; Carter County v. Sinton, 120 U. S. 517, 7 Sup. Ct. 650, 30 L. Ed. 701; Provident Life & Trust Co. V. Mercer County, 170 U. S. 600, 18 Sup. Ct. 788, 42^ L. Ed. 1156. 5T German Savings Bank v. Franklin County, 128 TJ. S. 526, 9 Sup. Ct. 159, 32 L. Ed. 519; Steines v. Franklin County, 48 Mo. 167, 8 Am. 548 QUASI CORPORATIONS COUNTIES (Ch. 17 the bond was executed be purely private,'* the bond is void, and the county cannot be held liable upon it. Irregularities — Recitals — Estoppel The defense of an illegal exercise of authority, though of- tener made, is not so easily available. County bonds are com- monly made payable to bearer, and many defenses allowed to the county against an original holder cannot be used against a bona fide holder for value. Moreover, defects in execution may be cured by ratification, lost by waiver, or covered by estoppel. The county or the Legislature may ratify by sub- sequent action bonds originally invalid by reason of some ir- regularity in their execution." The Legislature may vali- date an irregular issue of bonds, provided it has constitutional power to authorize an original issuance thereof. °" The coun- ty, with full knowledge of the facts, may, by long acqui- escence and recognition of the obligation, waive any original Rep. 87 ; Columbia County Com'rs v. King, 13 Fla. 451 ; Harshman V. Bates County, 92 U. S. 569, 23 L. Ed. 747 ; Wells v. Pontotoc Coun- ty, 102 .U. S. 625, 26 L. Ed. 122; Ogden v. Daviess County, 102 U. S. 634, 26 L. Ed. 263; Amoskeag Nat. Bank v. Ottawa, 105 V. S. 667, 26 L. Ed. 1204. 6 8 Cooley, Const. Lim. (6tii Ed.) pp. 129, 175, 214; Osborne v. Ad- ams County, 106 U. S. 181, 1 Sup. Ct. 168, 27 L. Ed. 129 ; Sbarpless V. Mayor, etc., of City of Philadelphia, 21 Pa. 147, 59 Am. Dec. 759; Baltimore & E. S. R. Co. v. Spring, 80 Md. 510, 31 Atl. 208, 27 L. R. A. 72; Allen v. Inhabitants of Jay, 60. Me. 124, 11 Am. Rep. 185; Brodhead v. City of Milwaukee, 19 Wis. 624, 88 Am. Dec. 711; Weis- mer v. Village of Douglass, 64 N. Y. 91, 21 Am. Rep. 586. B9 Steines v. Franklin County, 48 Mo. 167, 8 Am. Rep. 87; Ritchie V. Franklin County, 22 Wall. (XJ. S.) 67, 22 L. Ed. 825 ; Otoe County V. Baldwin, 111 U. S. 1, 4 Sup. Ct. 265, 28 L. Ed. 331 ; BROWN v. ' BON HOMME COUNTY, 1 S. D. 216, 46 N. W. 173, Cooley, Cas. Mun. Corp. 372 ; Noel Young Bond & Stock Co. v. Mitchell County, 21 Tex. Civ. App. 638, 54 S. W. 284 ; Watson v. De Witt County, 19 Tex. Civ. App. 150, 46 S. W. 1061, where thei county failed at time of issuance of the bonds to provide for levying a tax for their payment. 60 Grenada County Sup'rs v. Brogden, 112 U. S. 261, 5 Sup. Ct 125, 28 L. Ed. 704; Anderson v. Santa Anna Tp., 116 U. S. 364, 6 Sup. Ct. 413, 29 L. Ed. 633; Utter v. Franklin, 172 U. S. 424, 19 Sup. Ct. 183, 43 L. Ed. 498 ; Steele County v. Erskine, 98 Fed. 217, 39 C. C. A. 173 ; Sykes v. Mayor, etc., of Town of Columbus, 55 Miss. 115 ; § 180) COUNTY BONDS 549 objection to their irregularity,*^ or by the recitals in the bonds it may estop itself from asserting invalidity arising out of irregular execution.'" But the act of ratification must be by due authority; '* the waiver must be with knowledge, 'actual or constructive;**, and th€ act constituting the estoppel must have been performed by officers thereunto legally authorized.*" A mayor having no authority to issue bonds has no power to perform an act of ratification,** and officers having no authority to determine or decide whether conditions precedent had been complied with cannot bind the county by recital of Katzenberger v. Aberdeen, 121 U. S. 172, 7 Sup. Ct. 947, 30 L. Ed. 911; Erskine y. Steele County (C. C.) 87 Fed. 630. 61 Heed v. Commissioners of Cowley County (O. C.) 82 Fed. 716; Presidio County v. City Nat. Bank, 20 Tex. Civ. App. 511, 44 S. W. 1069; State ex rel. Moran v. Commissioners of Clinton County, 6 Ohio St. 280 ; Ray County v. Vansyele, 96 XJ. S. 675, 24 L. Ed. 800 ; Pendleton County v. Amy, 13 Wall. (U. S.) 297, 20 L. Ed. 579 ; Mar- shall County V.' Sehenck, 5 Wall. (U. S.) 781, 18 I/. Ed. 556; Board of Sup'rs of Mercer County v. Hubbard, 45 111. 139; Jasper County v. Ballou, 103 U. S. 745, 26 L. Ed. 422. «2 Moran v. Miami County, 67 17. S. (2 Black) 722, 17 L. Ed. 342; Knox County v. Aspinwall, 21 How. (U. S.) 539, 16 L. Ed. 208 ; Moul- trie County V. Bank, 92 U. S. 631, 23 L. Ed. 631; Dixon County v. Field, 111 U. S. 83, 4 Sup. Ct. 315, 28 L. Ed. 360; Coffin v. Board of Com'rs of Kearney County, 57 Fed. 137, 6 C. C. A. 288 ; BROWN v. ' BON HOMME COUNTY, 1 S. D. 216, 46 N. W. 173, Cooley, Cas. Mun. Corp. 372. 63 Marsh v. Fulton County, 10 Wall. (U. S.) 676, 19 L. Ed. 1040; Manhattan Life Ins. Co. v. Broughton, 109 U. S. 121, 3 Sup. Ct. 99, 27 L. Ed. 878; Daviess County v. Dickinson, 117 U. S. 665, 6 Sup. Ct. 897, 29 li. Ed. 1026 ; Board of Com'rs of Oxford v. Union Bank of Richmond, 96 Fed. 298, 37 C. G. A. 493; Steines v. Franklin Coun- ty, 48 Mo. 167, 8 Am. Rep. 87; Norton v. Shelby County, 118 U. S. 425, 6 Sup. Ct 1121, 30 L. Ed. 178. «*McPherson v. Foster, 43 Iowa, 48, 22 Am. Rep. 215. 85 BROWN V. BON HOMME COUNTY, 1 S. D. 216, 46 N. W. 173, Cooley, Cas. Mun. Corp. 372 ; Coffin v. Board of Com'rs of Kearney County, 57 Fed. 137, 6 C. O. A. 288 ; Dixon County v. Field, 111 U. S. 83, 4 Sup. Ct. 315, 28 L. Ed. 360 ; German Savings Bank v. Frank- lin County, 128 U. S. 526, 9 Sup. Ct. 159, 32 L. Ed. 519; Moran v. Miami County, 67 U. S. (2 Black) 722, 17 L. Ed. 342. 66 Kelley v. Milan, 127 U. S. 139, 8 Sup. Ct. 1101, 32 L. Ed. 77. 550 QUASI COEPOEATIONS COUNTIES (Ch. 17 such compliance in the face of the bonds executed by them."^ A public corporation is not estopped to deny the authority of persons assuming to act for it."* Public officers cannot ac- quire authority by their own declarations, and a body politic cannot be estopped thereby from denying their authority to bind it."' A bona fide purchaser of a county bond is not charged with constructive notice of objections to the validity of bonds being made by the county in pending litigation/" nor with knowledge of latent defects in the execution or is- suance of county bonds ;^^ but he is bound to take notice of the Constitution and laws of the state/ ^ and particularly ST Dixon County v. Field, 111 U. S. 83, 4 Sup. Ct. 315, 28 L. Ed. 360; B,oard of Sup'rs of Carroll County v. Smith, 111 U. S. 562, 4 Sup. Ct. 539, 28 L. Ed. 517; Daviess C9unty v. Dickinson, 117 U. S. 665, 6 Sup. Ct. 897, 29 L. Ed. 1026 ; Hedges v. Dixon' County, 150 U. S. 188, 14 Sup. Ct. 71, 37 L. Ed. 1044; Mercer County v. Provident Life & Trust Co., 72 Fed. 623, 19 C. C. A. 44 ; Board of Com'jrs of Oxford V. Union Bank of Richmond, 96 Fed. 298, 37, C. C. A. 493; Coffin V. Board of Com'rs of Kearney County, 57 Fed. 137, 6 C. C. A. 288. 8 8 Coler V. Cleburne, 131 U. S. 162, 9 Sup. Ct. 720, 33 L. Ed. 146; Merchants' Exch. Nat. Bank v. Bergen County, 115 U. S. 384, 6 Sup. Ct. 88, 29 L. Ed. 430 ; BROWN v. BON HOMME COUNTY, 1 S. D. 216, 46 N. W. 173, Cooley, Cas. Mun. Corp. 372. 6 9Chisholm v. Montgomeiy, 2 Woods, 584, Fed. Cas. No. 2,686; Flagg V. School Dist. No. 70 of Barnes County, 4 N. D. 30, 58 N. W. 499, 25 L. R. A. 363 ; Lehman v. City of San Diego, 83 Fed. 669, 27 C. C. A. 668 ; Board of Com'rs of Oxford v. Union Bank of Rich- mond, 96 Fed. 293, 37 C. C. A. 493 ; Marsh v. Fulton County, 10 Wall. (U. S.) 676, 19 L. Ed. 1040 ; Daviess County v. Dickinson, 117 U. S. 657, 6 Sup. Ct. 897, 29 L. Ed. 1026 ; Lake County v. Graham, 130 U. S. 674, 9 Sup. Ct. 654, 32 L. Ed. 1065 ; Lewis v. Shreveport, 108 U. S. 282, 2' Sup. Ct. 634, 27 L. Ed. 728. 7 Board of Sup'rs of Carroll County v. Smith, 111 U. S. 556, 4 Sup. Ct. 539, 28 L. Ed. 517 ; Scotland County v. Hill, 132 U. S. 107, 10 Sup. Ct. 26, 33 L. Ed. 261 ; Town of Enfield v. Jordan, 119 U. S. 680, 7 Sup. Ct. 358, 30 L. Ed. 523 ; Stone v. Elliott, 11 Ohio St. 252 ; Cass County v. Gillett, 100 U. S. 585, 25 L. Ed. 585; Winston v. Wesitfeldt, 22 Ala. 760, 58 Am. Dec. 278; Mims v. West, 38 Ga. 18, 95 Am. Dec. 379. 71 Knox County v. Aspinwall, 21 How. (U. S.) 539, 16 L. Ed. 208; State V. Board of Com'rs of Wichita County, 62 Kan. 494, 64 Pac. 45. 72 Marsh v. Fulton County, 10 Wall. (U, S.) 676, 19 L. Ed. 1040; § 180) COUNTY BONDS 551 the statute under which the bonds are issued,'' the public records in relation to the issue/ ^ and what appears upon the face of the instrument.' ° Recitals As to matters in pais, he may rely for his information upon the recitals contained in the bond — as, for example, if the stat- ute requires popular consent as a condition precedent to the issuance of the bonds, and the county, by its proper officers thereunto duly authorized, recites in the face of the bond a compliance with the statutory conditions, the purchaser |is war- ranted in acting upon this recital.' ° The rule of d^ision con- stantly applie'd by the Supreme Court of the United States in numerous cases involving this question is thus stated by Mr. Justice Sirong: "Where it may be gathered from the legisla- Merchants' Exch. Nat. Bank v. Bergen County, 115 U. S. 391, 6 Sup. Ct. 88, 29 L. Ed. 430 ; Barnett v. Denison, 145 U. S. 139, 12 Sup. Qt. 819, 36 L. Ed. 652; Moore v. Mayor, etc., of City of New York, 73 N. Y. 238, 29 Am. Rep. 134 ; Sage v. Fargo Tp., lOT Fed. 383, 46 C. C. A. 361 ; Stebbins v. Perry County, 167 111. 567, 47 N. B. 1048 ; MitcheU County v. City Nat. Bank, 91 Tex. 361, 43 S. W. 880. 73 Barnett v. Denison, 145 TJ. S. 135, 12 Sup. Ot. 819, 36 L. Ed. 652; Mercer County v. Provident Life & Trust Co., 72 Fed. 630, 19 C. C. A. 44 ; Gilson v. Dayton, 123 U. S. 59, 8 Sup. Ct. 66, 31 L. Ed. 74 ; German Savings Bank v. Franklin County, 128 U. S. 526, 9 3up. Ct. 159, 32 L. Ed. 519 ; Mitchell County v. City Nat. Bank, 91 Tex. 361, 43 S. W. 880. 7 4 Shaw V. Independent School Dist., 77 Fed. 277, 23 C. C. A. 169; Valley County v. McLean, 79 Fed. 728, 25 C. C. A. 174 I Supervisors of Marshall County v. Cook, 38 111. 44, 87 Am. Dec. 282. 7 5 Gilson V. Dayton, 123 U. S. 59, 8 Sup. Ct. 66, 31 L. Ed. 74; Bol- les V. Perry County, 92 Fed. 479, 34 C. C. A. 478. 7 6 Moultrie County v. Kockingham Ten-Cent Savings Bank, 92 U. S. 631, 23 I/. Ed. 631 ; Dixon County v. Field, 111 XJ. S. 83, 4 Sup. Ct. 315, 28 L. Ed. 360 ; Coffin v. Board of Com'rs of Kearney County, 57 Fed. 137, 6 C. C. A. 288 ; Second Ward Savings Bank v. City of Huron (C. C.) 80 Fed. 661 ; Smith v. Clark County, 54 Mo. 58 ; Wilkinson v. City of Peru, 61 Ind. 1. Where a county court, under color of an election issued bonds for aiding a railroad, such bonds were declared void and ultra vires, as being in violation of a constitutional provision forbidding all municipal subscriptions in aid of railroad companies, except where authorized under existing law by vote of the people. Stebbins v. Perry County, 167 111. 567, 47 N. E. 1048. 552 QUASI CORPORATIONS COUNTIES (Ch. 17 tive enactment that the officers of the municipality were in- vested with power to decide whether the condition precedent has been compHed with, their recital that it has been made in bonds issued by them and held by a bona fide purchaser is conclusive of the fact, and binding upon the municipality." " And in a later case it was added: "It is not necessary that the, recital should enumerate each particular fact essential to the existence of the obligation. A general statement that the bonds have been issued in conformity with the law will suf- fice, so as to embrace every fact which the officers making the statement are authorized to determine and certify." \? In further explication of this subject the same court declared: "The facts which a public corporation is not permitted, as against a bona fide holder, to question in the face, of recital in the bond of their existence, are those connected with or occurring out of the discharge of the ordinary duties of such of its officers as were invested with authority to execute them, and which the statute conferring the power made it their duty to ascertain and determine before the bonds were issued." " Excessive Issues This recital in the face of the bond of compliance with con- ditions precedent has been held conclusive even in cases of alleged overissue of bonds, where the law empowers the of- ficers issuing the bonds to decide, on proof of facts aliunde, the value of the county property upon which is to be com- puted the amount of bonds which the county may lawfully issue ; i-" but where the statute makes reference to some rec- ord as evidence of this valuation, such as an assessment roll or a census report, then, notwithstanding a recital in the bond of full compliance with the law, the purchaser is bound to ■f Town of Coloma v. Eaves, 92 U. S. 484, 23 L. Ed. 579. 78 Inhabitants of Bernards Tp. v. Morrison, 133 U. S. 523, 10 Sup. Ct. 333, 33 L. Ed. 766. TO Northern Nat. Bank v. Porter Tp., 110 U. S. 608, 4 Sup. Ct. 254, 28 L. Ed. 258. soMarcy v. Oswego /Tp., 92 U. S. 637, 23 L. Ed. 74'8; New Provi- dence Tp. V. Halsey, 117 U. S. 336, 6 Sup. Ct. 764, 29 L. Ed. 904. § 181) FISCAL MANAGEMENT 553 take notice of such facts as the records, referred to for au- thority in the statute, disclose concerning the vakiation of the taxable property.!-^ He is 'charged with knowledge of the statutory reference to this source of information, and also of the facts therein disclosed ; and these records, rather than the recitals in the bonds, will prevail in any contention over their validity based upon allegations of excessive issue. , 82 FISCAL MANAGEMENT 181. The fiscal management of counties is commonly pre- scribed with particularity in the general, perma- nent statutes of the state ; and, in matters wherein specific directions are not given, the analogies,, rules, and practice of the state government, rather than of private corporations, is favored by the courts. Every state has its peculiar form of county organization, created by Constitution and statute, wherein are specified the 81 Francis v. Howard County, 54 Fed. 487, 4 C. C. A. 460; Valley County V. McLean, T9 Fed. 728, 25 C. C. A. 174; Quaker City Nat. Bank v. Nolan County (C. C.) 59 Fed. 660 ; Citizens' Bank v. City of Terrell, 78 Tex. 456, 14 S. W. 1003. See, also, Rathbone v. Board of Com'rs of Kiowa County, 83 Fed. 125, 27 C. C. A. 477 ; Heed v. Com- missioners of Cowley County, Kan. (C. 0.) 82 Fed. 716; Board of Com'rs of Lake County v. Sutliff, 97 Fed. 270, 38 C. O. A. 167 ; Board of Com'rs of Gunnison County v. E. H. Rollins & Sons, 173 U. S. 255, 19 Sup. Ct. 390, 43 L. Ed. 689 ; ChafCee County Com'rs v. Potter, 142 U. S. 355, 12 Sup. Ct. 216, 35 L. Ed. 1040. But where the limit of an issue of bonds is to be ascertained from records or data which lare peculiarly within the knowledge and control of the officers of the municipality, or they have better access to the information than oth- er persons, and can jlscertain the amount with more certainty than strangers, then the bonds will be held valid in the hands of bona fide holders. Chilton v. Town of Gratton (C. C.) 82 Fed. 873. 82 Board of . Com'rs of Lake County v. Sutlife, 97 Fed. 270, 38 C. C. A. 167 ; Board of Com'rs of Gunnison County v. E. H. Rollins & Sons, 173 U. S. 255, 19 Sup. Ct. 390, 43 L. Ed. 689 ; Chaffee County Com'rs V. Potter, 142 V. S. 355, 12 Sup. Ct. 216, 35 L. Ed. 1040; Val- 554 QUASI COEPORATIOXS--COUNTIES (Ch. 17 various officers of the county government, and the duties and functions of each. The assessment, collection, and appropria- tion of county revenues, and the disposition' of county funds, are specifically regulated and directed by those statutes which give to each state its own peculiar rules of fiscal management. But since human foresight cannot provide for every possible contingency, many things are necessarily taken for granted. In the interpretation and application of these statutes the courts are averse to recognizing and following the rules and usages of private corporations,'^ but, because of the purely public character and functions of counties, are inclined to conform rather to the rules and usages prevailing in the fiscal management of the state government, wherever practicable.'* Most county officers, indeed, charged with fiscal functions, rep- ley County V. McLean, 79 Fed. 728, 25 C. C. A. 174 ; Shaw t. Inde- pendent School Dlst., 77 Fed. 277, 23 C. G. A. 169. The Supreme Court of the United States has necessarily come to be the chief source of the law of public securities, because of the great number of cases hitherto decided by it, and the preference of bondholders for federal decisions bringing nearly all cases of im- portance into the federal tribunals. County bonds, being negotiable instruments, are generally in the hands of nonresident holders, to whom these courts are open on account of diverse citizenship. Hav- ing the choice of forum, they naturally choose the one whose juris- prudence is most acceptable to them. The state Supreme Courts have generally concurred with the federal authority in their deci- sions. They have not adopted in toto the recital doctrine in its full measure, but have rather heeded the wise monitions of Judge Dillon as to the rules which should prevail with reference to this class of negotiable paper. 1 Dill. Mun. Corp. §§ 549-553. The federal courts hold that the recitals of the bond are sufficient, and, in the hands of a bona fide holder, are conclusive evidence of compliance with the ,law and with conditions precedent. The state courts consider re- citals as only prima facie evidence, and allow proof to show that legal requirements have not been observed.' It may safely be assum- ed that the federal rules will decide nearly every contention over these securities, and probably come to be generally recognized in the state courts, with slight modifications yet to be made by the federal Suprerne Court. 83 Coles V. Madison County, 1 111. (Breese) 154, 12 Am. Dec. 161. 84 Milam County v. Bateman, 54 Tex. 165 ; People ex rel. City of Springfield v. Power, 25 111. 187. § 181) FISCAL MANAGEMENT .555 resent both the state and the county, and, in matters of asf sessment and collection of revenue, perform the same : duties for each. The appropriation and disbursement of the county revenue are purely county functions, as is likewise the audit of county claims.'* County Claims It is a general rule that, before suit can be brought upon any county claim, it must be duly presented for audit.*^ In some states the rule prevails that the action of the county board of audit is conclusive, unless appealed from, both upon the county and claimant." In others, it is only prima facie evidence in favor of a claim, and the county may thereafter contest its validity; *' while a rejection of the claim by the auditing au- thority amounts to a mere refusal to pay, and gives the claim- ant his right of action.*' 8s Mayor, etc., of City of Nashville v. Towns, 5 Sneed (Tenn.) 186; Tippecanoe County v. Lucas, 93 U. S. 108, 23 L. Ed. 822. S6 Autauga County v. Davis, 32 Ala. 703 ; Board of Sup'rs of Law- rence County V. City of Brookhaven, 51 Miss. 68; foard of Com'rs of Sullivan County v. Arnett, 116 Ind. 438, 19 N. E. 299 ; Armstrong V. Tama County, 34 Iowa, 309 ; McCann v. Sierra County, 7 Cal. 121 ; Waitz V. Ormsby County, 1 Nev. 370 ; Board of Com'rs of Washing- ton County V. Clapp, 83 Minn. 512, 86 N. W. 775 ; Shepard v. Easter- ling, 61 Neb. 882, 86 N. W. 941; Lorsbach v. Lincoln County, Nev. (C. C.) 94 Fed. 963. 8' Board of Com'rs of Warren County v. Gregory, 42 Ind. 32 ; Moser v. Boone County, 91 Iowa, 359, 59 N. W. 39 ; Endriss v. Chip- pewa County, 43 Mich. 317, 5 N. W. 632; Taylor v. Marion County, 51 Miss. 731. See, also, State v. Griggsby, 6 Ohio N. P. 202 ; Taylor V. Davey, 55 Neb. 153, 75 N. W. 553 ; Trites v. Hitchcock County, 53 Neb. 79, 73 N. W. 215 ; Lamberson v. JefCerds, 118 Cal. 363, 50 Pac. 403; State ex rel. Porter v. Headlee, 18 Wash. 220, 51 Pac. 369. But see Dean v. Saunders County, 55 Neb. 759, 76 N. W. 450 ; Board of Com'rs of Huntington County v. Buchanan, 21 Ind. App. 178, 51 N. E, 939. 8 8 Leavenworth County Com'rs v. Keller, 6 Kan. 510; Kyan v. Dakota County, 32 Minn. 138, 19 N. W. 653;. Abernathy v. Phifer, 84 N. C. 711; Jones v. Commissioners of Lucas County, 57 Ohio St. 189, 48 N. E. 882, 63 Am. St. Rep. 710. ssGillett V. Lyon County Com'rs, 18 Kan. 410; Boswell v. Board of Com'rs of Albany County, 1 Wyo. 235 ; Murphy v. Steele County 556 QUASI CORPORATIONS COUNTIES (Cll. 17 Compensation of County Oihcers County officers are compensated for their services either by salary, fees, or commissions fixed by law. This limit of com- pensation cannot be transgressed by the county by extra al- lowance without statutory authority.'" The basis of this rule is that the officer has, by taking the office, agreed to perform all the duties of the office, whether prescribed at the date of his induction or subsequently added by statute, for the com- pensation fixed by law,°^ and that these include all services performed in the line of his official employment.®'' It has accordingly been held that public corporations cannot lawfully allow extra compensation to attorneys, physicjans, and other county officers for extraordinary services rendered by them in the line of their professional and official duty, though they were npt foreseen or contemplated at the time of induction into office."* So, likewise, where service had been rendered by persons in effecting the organization of a county, they can- not be treated as preliminary or quasi officers, nor can they receive compensation for services rendered in promoting and Com'rs, 14 Minn. 6T (GU. 51) ; Waitz v. Ormsby County, 1 Nev. 370; Clay County v. Chickasaw County, 76 Miss. 418, 24 South. 975. 00 Gilmore v. Lewis, 12 Ohio, 281 ; Albright v. Bedford County, 106 Pa. 582; Wayne County v. Reynolds, 126 Mich. 231, 85 N. W. 574, 86 Am. St Rep. 541; Garfield County v. Leonard, 26 Colo. 145, 57 Pac. 693; Ellis v. Steuben County, 153 Ind. 91, 54 N. E. 382; Grant County Com'rs v. McKinley, 8 Okl. 128, 56 Pac. 1044; Jones V. Commissioners of Lucas County, 57 Ohio St. 189, 48 N. E. 882, 63 Am. St. Rep. 710 ; The Judges' Salary Cases, 110 Tenn. 370, 75 S. W. 1061, holding statute unconstitutional. 81 1 Dill. Mun. Corp. § 233 ; Glavey v. U. S., 35 Ct. CI. (U. S.) 242. But see Id., 182 U. S. 595, 21 Sup. Ct. 891, 45 L. Ed. 1247. »2Heslep V. City of Sacramento, 2 Cal. 580; Debolt v. Trustees of Cincinnati Tp., 7 Ohio St 237 ; Pilie v. City of New Orleans, 19 La. Ann. 274; Hatch v. Mann, 15 Wend. (N. Y.) 44; Hobbs v. City of Xonkers, 102 N. Y. 13, 5 N. E. 778 ; Brissenden v. Clay County, 161 111. 216, 43 N. E. 977. »3 Henderson County v. Dixon, 63 S. W. 756, 23 Ky. Law Rep. 1204; Sipler V. Clarion County, 8 Pa. Dist R. 253; Morgantowa Deposit Bank v. Johnson, 108 Ky. 507, 56 S. W. 825 ; Carroll v. City of St. Louis, 12 Mo. 444; Memphis v. Brown, 20 Wall. (U. S.) 289, 22 L. Ed. 264; Callagan v. Hallett, 1 Caines (N. Y.) 104; Preston v. § 181) FISCAL MANAGEMENT 557 competing the county organization.** A de facto officer may lawfully claim and receive official salary until his official right to the office has been adversely decided," but he cannot main- tain an action for salary."' A majority, of cases hold that the de jure officer cannot recover from a county the salary paid by it to the de facto officer,"' but has his action there- Bacon, 4 Conn. 471; Shattuck v. Woods, 1 Pick. (Mass.) 175; Smith V. Smith, 1 Bailey (S. C.) 70. But see, contra, HufCman v. Board of Com'rs of Greenwood County, 23 Kan. 281 ; McBride v. Grand Rap- ids, 47 Mich. 236, 10 N. W. 353. The Judges' Salary Oases, 110 Tenti. 370, 75 S. W. 1061, declare unconstitutional and void a legislative act authorizing a county to pay additional salary to a judge of the state court sitting in that county only. 94 Board of Com'rs of Fremont County v. Perkins, 5 Wyo. 166, 88 Pac. 915. 95 McVeany v. Mayor, etc., of City of New. York, 80 N. Y. 185, 36 Am. Rep. 600; Steubenville v. Culp, 38 Ohio St. 18, 43 Am. Rep. 417 ; Michel v. City of New Orleans, 32 La. Ann. 1094 ; Parker v. Board of Com'rs of Dakota County, 4 Minn. 59 (Gil. 30) ; Brinker- hofE v. Jersey City, 64 N. J. Law, 225, 46 Atl. 170; Atchison v. Lucas, 83 Ky. 451; Manor v. State ex rel. Stoltz, 149 Ind. 310, 49 N. E. 160 ; Sullivan v. Haacke, 5 Ohio N. P. 26. The acts and judg- ments of a de facto officer are as valid and binding as though per- formed and rendered by an officer de jure. Dredla v. Baache, 60 Neb. 655, 83 N. W. 916 ; Morford v. Territory, 10 Okl. 741, 63 Pac. 958, 54 L. R. A. 513. See, also, Wilson v. Brown, 109 Ky. 229, 58 S. W. 595, 22 Ky. Law Rep. 708 ; Id. (Ky.*) 59 S. W. 513. 98 Andrews v. Portland, 79 Me. 484, 10 Atl. 458, 10 Am. St. Rep. 280; Romero v. United States, 24 Ct. CI. (U. S.) 331, 5 L. R. A. 69. See Farrell v. City of Bridgeport, 45 Conn. 191; City of Vicksburg V. Groome (Miss.) 24 South. 306. The charter of Jersey City provided for the appointment of a sin- gle person as city attorney. Two persons acted in that capacity as de facto officers. It was held that, while the acts of each were valid with respect to strangers, neither could maintain a suit for official salary. City of Jersey City v. Erwin, 59 N. J. Law, 282, 35 Atl. 948. 37 Greeley County v. Milne, 36 Neb. 301, 54 N. W. 521, 19 L. R. A. 689, 38 Am. St. Rep. 724; Nichols v. MacLean, 101 N. Y. 523, 5 N. B. 347, 54 Am. Rep. 730; Parker v. Board of Sup'rs of Dakota Coun- ty, 4 Minn. 59 (Gil. 30). If, during the incumbency of an officer de facto, and before any judgment of ouster has been rendered against him, the city or coun- ty of which he is such officer de facto pays him the salary of the office, a very decided preponderance of authorities sustains the posi- tion that by means of such payment the right of the officer de jure 558 QUASI CORPORATIONS COUNTIES (Ch. 17 for against the ousted de facto officer.'*' The opposite view has been strongly maintained in municipal decisions in several states."' to collect his salary from such city or county is lost. Board of Au- ditors of Wayne County v. Benoit, 20 Mich. 176^ 4 Am. Rep. 382 ; Shaw V. Pima County, 2 Ariz. 399, 18 Pac. 273 ; State ex rel. Vail v. Clark, 52 Mo, 508 ; Smith v. Mayor, etc., of City of New York, 37 N. Y. 518 ; Westberg v. Kansas City, 64 Mo. 493; McVeany v. Mayor, etc., of City of New York, 80 N. Y. 185, 36 Am. Bep. 600 ; Dolan v. Mayor, etc., of City of New York, 68 N. Y. 274, 23 Am. Rep. 168 ; Steuben- ville V. Gulp, 38 Ohio St. 23, 43 Am. Rep. 417 ; Saline County Com'rs V. Anderson, 20 Kan. 298, 27 Am. -Rep. 171. If a judgment of ouster has been entered against an officer de facto, and salary is thereafter paid to him, the officer de jure may maintain an action therefor against the city or couaty, notwith- standing such payment. McVeany v. Mayor, etc., of City of New York, supra. If none of the salary has been paid to the officer de facto, the officer de jure, although he performs no duties of the office, may maintain an action against the city and county for the salary and emoluments thereof. Comstock y. City of Grand Rapids, 40 Mich. 397. A county or municipality which has paid a salary to a de facto officer, who performed the duties of the office under color of title, while the right to it was in litigation, cannot be held liable there- for again to another who may thereafter establish his title to the office. Fuller v. Roberts County, 9 S. D. 216, 68 N. W. 308. But in Tennessee and California it has been in several cases held that a de jure officer can maintain an action against a city, county, or other public body charged with the duty of making payment of the salary office for the payment of such salary, where it has been paid to a de facto officer. Mayor, etc., of City of Memphis v. Wood- ward, 12 Heisk. (Tenn.) 499, 27 Am. Rep. 750; Savage v. Pickard, 14 Lea (Tenn.) 46 ; People ex rel. Dorsey v. Smyth, 28 Cal. 21 ; Car- roll V. Siebenthaler, 37 Cal. 193. 9 8 In an action by a de jure officer against a person wrongfully in possession of the office for fees received by the incumbent, plain- tiff is entitled to recover the entire amount received by defendant, though the value of defendant's services equals the fees received. Wenner v. Smith, 4 Utah, 238, 7 Pac. 293. If he has in fact received the emoluments of the office, he has no right whatever to retain them, and he may be compelled to account therefor to the officer de jure, in any appropriate form of action. «» See note 99 on following page. § 181) riSCAL MANAGEMENT 559 County Revenues County revenues are generally divided into distinct funds for separate purposes, such as schools, roads, bridges, build- ings, and current expenses, and claims allowed are charged to the proper fund and warrants drawn accordingly. The county treasurer can pay a warrant only out of the fund upon which it is drawn ; and, if the fund be insufficient or exhausted, he cannot pay out of any other special f und,^ but may pay out of a general fund in his hands unappropriated for that year, or Douglass V. State ex rel. Wright, 31 Ind. 429; Lawlor v. Alton, 8 Ir. R. C. L. 160; Mayfield v. Moore, 53 111. 428, 5 Am. B.ei>. 52. An officer de facto is not entitled to the salary of the office, and, although he may faithfully discharge its duties, he cannot main- tain an action against the city or county for the compensation to which he would have been entitled if he were an officer de jure. McCue V. Wapello County, 56 Iowa, 698, 10 N. W. 248, 41 Am. Rep. 134; Matthews v. Board of Sup'rs of Copiah County, 53 Miss. 715, 24 Am. Rep. 715; Dolan v. Mayor, etc., of City of New York, 68 N. y. 274, 23 Am. Rep. 168. In Booker v. 'Donohoe, 95 Va. 359, 28 S. E. 584, it was held that one elected to an office, but excluded therefrom by an intruder, who collected the fees and emoluments pertaining thereto, may recover against such intruder in an action of indebitatus assumpsit, though he had not previously qualified as such officer by taking the oath and executing the bonds prescribed by law. In New Jersey an officer de jure cannot recover from an officer de facto the emoluments of office received by the latter while in the discharge ""of its duties In good faith, and in the belief that he was entitled to the office and its emoluments. Stuhr.v. Curran, 44 N. J. Law, 181, 43 Am. Rep. 353. See, also, Kreitz v. Behrensmeyer, 149 111. 496, 36 N. E. 983, 24 L. R. A. 59; Bier v. Gorrell, 30 W. Va. 95, 3 S. E. 30, 8 Am. St. Rep. 17; Hunter v. Chandler, 45 Mo. 452; Petit v. Rousseau, 15 La. Ann. 239. 9 9 Mayor, etc., of aty of Memphis v. Woodward, 12 Heisk. (Tenn.) 499, 27 Am. Rep. 750; Ward v. Marshall, 96 Cal. 155, 30 Pac. 1113, 31 Am. St. Rep. 198 ; Kempster v. City of Milwaukee, 97 Wis. 343, 72 N. tV. 743; Larsen v. City of St Paul, 83 Minn. 473. 86 N. W. 459. See Dickerson v. City of Butler, 27 Mo. App. 9. 1 Campbell v. Polk County Court, 76 Mo. 57; People v. Wood, 71 N. Y. 371; Clark v. City of Des Moines, 19 Iowa, 199, 87 Am. Dec. 423; Pease v. Inhabitants of Cornish, 19 Me. 191. 560 QUASI CORPORATIONS COUNTIES (Ch. 17 out of the particular fund collected the ensuing year. Failure to pay the claim on demand authorizes suit and judgment against the county.' TAXATION 182. The power of taxation is an attribute of sovereignty, and can therefore be exercised only for public pur- poses, and by officers and agencies created and thereunto authorized by law. Counties possess only such measure of this power as is expressly conferred upon them by statute for the purposes therein prescribed. Assessment The elements constituting taxation are assessment, levy, and collection. These can be exercised by the county only upon the property and persons within its limits.* A single assess- ment of the property in a county is generally provided by law as the basis of all taxes levied — state, county, and town or township. In states where town and township functions are most important, assessment is made by ofiScers of those organ- izations constituting the county. In other states the assess- ment is made by a county officer or county officers. The mode and manner of such assessment are prescribed and regulated by statute law. To insure a just apportionment of the burden of taxation, state and county boards of equalization are pro- vided, which have general authority to correct errors of as- sessment, to the end that such assessments may be uniform and equal. Errors made by assessments in the ownership or 2 Cobb County v. Adams, 68 Ga. 51; Curtis v. Cass County, 49 Iowa, 421;. Taylor v. Marion County, 51 Miss. 731 ; Clark v.. City of Des Moines, supra. See Modoc County v. Madden, 120 Cal. 555, 52 Pac. 812. sCooley, Const. Lim. (6th Ed.) pp. 615-621; Sangamon & M. E. Co. V. Morgan County, 14 Ilh 163, 56 Am. Dee. 497; Mills v. Thorn- ton, 26 111. 300, 79 Am. Dee. 377 ; Carrier v. Gordon, 21 Ohio St. 605; Blood V. Sayre, 17 Vt. 609; Wells v. City of Weston, 22 Mo. 384, § 182) TAXATION 561 valuation of property are corrected by these boards upon ap- peal to them, and. their decision is generally held to be final.*. Levy The levy ot taxes tor county purposes, being a matter pe- culiarly of local knowledge and interest, is committed by the state to the county board or court, which is empowered to fix the rate of the annual levy.° In some states the statutes set no limit upon the amount of the county levy, but commit this subject entirely to the discretion of the county authorities. In others, the amount of the county levy is limited by law — as, for example, that the amount or rate for county purposes shall not exceed that for state purposes. Within this- limit, the county authorities have full, discretion in making the annual levy for county purposes.* This function is legislative, and not judicial, and from the action of the county authorities in 66 Am. Dec. 627; Swift v. City of Newport, 7 Bush (Ky.) 37; Mor- ford V. Unger, 8 Iowa, 82. Injunction will lie, at the suit of a tax- payer, to restrain a county from incurring expense for equipping a free ferry outside the county, It having no authority to establish such a one. Johnston v. Sacramento County, 137 Cal. 204, 69 Pac. 962. See Northwestern Lumber Co. v. Chehalls County, 25 Wash. 95, 64 Pac. 909, 54 L. R. A. 212, 87 Am. St. Eep. 747; Barnes v. Wood- bury, 17 Nev. 383, 30 Pac. i068 ; Ford v. McGregor, 20 Nev. 446, 23 Pac. 508; State v. Shaw, 21 Nev. 222, 29 Pac. 321. Also, see Denver & E. G. R. Co. V. Church, 17 Colo. 1, 28 Pac. 468, 31 Am. St. Rep. 252; Smith v. Mason, 48 Kan. 586, 30 Pac. 170. * Fuller V. Gould, 20 Vt. 643 ; Longfellow v. Quimby, 29 Me. 196, 48 Am. Dec. 525; Davis v. Kalamazoo Tp., 1 Mich. N. P. 16 ; Stewart V. Maple, 70 Pa. 221; Smith v. Board of Sup'rs of Jones County, 30 Iowa, 531; Bellinger v. Gray, 51 N. Y. 613; People ex rel. Shank v. Nichols, 49 111. 517. B Burroughs, Tax., § 133; Caldwell v. Burke County Justices, 57 N. C. 323 ; Perry v. City of Rockdale, 62 Tex. 457; STATE ex rel. JAMESON V. DENNY, 118 Ind. 382, 21 N. E. 252, 4 L. R. A. 79, Cooley, Cas. Mun. Corp. 4; Smith v. Aberdeen Corp., 25 Miss. 458; Osborne v. MayoB^etc, of Mobile, 44 Ala. 493; PEOPLE ex rel. LE ROY V. HURLBUT, 24 Mich. 44, 9 Am. Rep. 103, Cooley, Cas. Mun. Corp. 36. See State ex rel. Ross v. Headlee, 22 Wash. 126, 60 Pac. 126. 6. Cannon County Justices v. Hoodenpyle, 7 Humph. (Tenn.) 145; Smith V. Aberdeen Corp., 25 Miss. 458; Osborne v. Mayor, etc., of CooL.MuN.CoBr. — 36 562 QUASI COKPOEATIONS COUNTIES (Ch. 17 fixing this levy there is no appeal/ If the limit prescribed .by law is transgressed by them, the taxpayers have recourse to the courts to enjoin collection of the excess beyond the law- ful limit, or recover same back from the officer.^ So, like- wise, if the county authorities levy a tax for any purpose not authorized by law.' This levy must be made by the board of county authorities in regular session, and entered upon its minutes of the proceeding. This record is a sine qua non of a valid levy.^" It must specify the several county purposes for which the respective levies are made, composing the aggregate of the county levy.^^ The sums received from these various sources constitute separate funds of the county to be applied Mobile, 44 Ala. 493; PEOPLE ex rel. I^E ROT v, HURLBUT, 24 Mich. 44, 9 Am. Rep. 103, Cooley, Cas. Mun. Corp. 36; Hilliard Y. Bunker, 68 Ark. 340, 58 S. W. 362. 7 Grant v. Lindsay, 11 Helsk. (Tenn.) 666 ; Obion County, Court V. Marr, 8 Humph. (Tenn.) 634. See Dodge v. Mission Tp., Shawnee County, Kan., 107 Fed. 827, 46 C. C. A. 661, 54 L. R. A. 242. 8 Vanover v. Davis, 27 Ga, 354; Fleming v. Mershon, 36 Iowa, 413 ; Mayor, etc., of City of Baltimore v. Porter, 18 Md. 284, 79 Am. Dec. 686; City of Richmond v. Crenshaw, 76 Va. 936; Bright v. Halloman, 7 Lea (Tenn.) 309. An interested taxpayer may sue to prohibit the negotiability of funds issued by county .commissioners for the payment of the construction of a road, based on the ground that the bonds are void, as being in excess of the limit prescribed by law. Owen County Com'rs v. Spangler, 159 Ind. 575, 65 N. E. 743. See, also, Rogers v. Board of Sup'rs of Westchester County, 77 App. Div. 501, 78 N. Y. Supp. 1081. ■> Holland V. Mayor, etc., of City of Baltimore, 11 Md. 186, 69 Am. Dec. 195; City of Delphi v. Bowen, 61 Ind. 29; Leslie v. City of St. Louis, 47 Mo. 474. In Grannis v. Board of Com'rs of Blue Earth County, 81 Minn. 55, 83 N. W. 495, it was declared that a taxpayer of the county might maintain an action to restrain the performance of an ultra vires contract by the county oflScials. See, also, Franklin v. Baird, 9 Ohio S. & C. P. Dec. 715, 7 Ohio N. P. 571; Burness v. Multnomah County, 37 Ot.,460, 60 Pae. 1005. 10 Moser v. White, 29 Mich. 59; Farrar v. Fe'ssenden, 39 N. H. 268 ; People v. Eureka Lake & Xuba Canal Co., 48 Cal. 143; West v. Whitaker, 37 Iowa, 598. But see Hilliard v. Bunker, 68 Ark. 340, 58 S. W. 362. 11 Cooley, Const. Lim. (6th Ed.) p. 636; Kennedy v. Montgomery County, 98 Tenn. 179, 38 S. W. 1075; Clark v. City of Davenport, 14 § 182) TAXATION 563 to the objects specified in the levy.^'' A levy for a particular purpose by the county authorities amounts to an appropriation of that fund to that purpose, and, unless expressly authorized by statute, such fund cannot be diverted from that purpose by any county board or officer. ^^ Collection The collection of county taxes is regulated by the statutes of the state, and is generally made at the same time, in the same way, and by the same officer as the collection of the state revenue. In some states county revenue is collected by the town officer at the same time with, and in the same manner as, the town revenue, and the collection officers of the sev- eral towns constituting the county pay over the county por- tion of the public tax to the county treasurer. This county officer, whether called "treasurer," "trustee," or by any other name, is the legal custodian of the county funds, and disburses the same only upon warrants drawn upon the county treasury by the officer intrusted with the fiscal management of its af- fairs.^* Collection of county revenue from delinquent tax- payers is made in pursuance of the general statute of the state regulating this function. This is effected sometimes by en- forcement of the tax lien upon the property, and sometimes Iowa, 494; Simmons v. Wilson, 66 N. C. 336; Lett v. Ross, 38 Ala. 156; State v. Mayor, etc., of Ashland, 71 Wis. 502, 37 N. W. 809. 12 Board of Com'rs of Tippecanoe County v. Cox, 6 Ind. 403; Camp- bell V. Polk County, 49 Mo. 214; Boro v. Phillips County,, 4 Dill. 216, Fed. Cas. No. 1,663. 13 Carroll County v. United States ex rel. Reynolds, 18 Wall. (U. S.) 71, 21 L. Ed. 771; Campbell v. Polk County, 49 Mo. 214; 'Nash- ville, C. & St. L. R. Co. V. Franklin County, 5 Lea (Tenn.) 707; Nashville, C. & St. L. R. v. Hodges, 7 Lea (Tenn.) 663; Smathers v. Commissioners of Madison County, 125 N. C. 480, 34 S. E. 554. i*A county treasurer cannot be compelled to receive money of which he is not made official custodian, nor to hold money, which he does receive, subject to any condition not imposed upon that fund by statute. Davis v. Patterson, 12 Pa. Super. Ct. 479. See Gartley v. People, to Use of Pueblo County, 28 Colo. 227, 64 Pae. 208; Wil- son V. Wichita County, 67 Tex. 647, 4 S. W. 67. 564 QUASI CORPORATIONS — COUNTIES (Ch. 17 by process against the owner.^* The methods of assessment, levy, and collection in each state are regulated by the local statutes, and are so various and different in their details as to preclude the possibility of general treatment and considera- tion, and are too numerous and multiform for the compass of the present work. They can only be known and understood by a very careful study of the revenue statutes of the several states. I Principles The controlling decisions of the courts of the various states not only reflect the variety and differences in the systems of taxation, but are themselves sometimes inconsistent and irrec- oncilable on identical questions. For the most part, however, they concur in recognizing and establishing the following prin- ciples in regard to county taxation : (1) The county niust be authorized by statute to levy the tax." (2) It must be levied by the county board designated and empowered to perform that function.^'' (3) There must be an official record of the levy.^* (4) The tax can be levied only upon persons and property or privileges within the limits of the county.^' (5) The tax must be for a public purpose and a county ob- ject.2» 15 2 Dill. Mun. Corp. §§ 815-822. See Smith v. Riding, 9 Houst. (Del.) 235, 22 Atl. 97. 16 Stetson, V. Kempton, 13 Mass. 2T2, 7 Am. Dee. 145 ; Daily v. Swope, 47 Miss. 367; Laramie County v. Albany County, 92 U. S. 307, 23 L. Ed. 552; Thompson v. Lee County, 3 Wall. (U. S.) 330, 18 L. Ed. 177; Caldwell v. Burke County Justices, 57 N. 0. 323 ; City of Philadelphia v. Planigen, 47 Pa. 21. 17 Bright V. Halloman, 7 Lea (Tenn.) 309; West v. Whitaker, 37 Iowa, 598; Gearhart v. Dixon, 1 Pa. 224. 13 People V. Eureka Lake & Yuba Canal Co., 48 Cal. 143 ; Martin v. Cole, 38 Iowa, 141; Farrar v. Fessenden, 39 N. Hi 268; Moser v. White, 29 Mich. 59. 19 See note 102. 20 Lpuisvllle & N. R. Co. v. Davidson County Court, 1 Sneed Barnard & Co. v. Knox County. 416. Barnert v. Paterson, 158, 159. Barnes v. District of Columbia, 33, 70, 375, 387. Barnes v. Minor, 32. Barnes v. Philadelphia, 196, 231. Barnes v. Williams, 214. Barnes v. Woodbury, 561. Barnett v. Denison, 551. Barnett v. Newark, 168. Barney v. Lowell, 471. Barnum v. Okolona, 576. Barr v. Kansas City, 391, 397, 398. Barr v. New Brunswick, 163, Barr v. Omaha, 293. Barrett v. Coleman, 581. Barrett v. Mobile, 429. . Barrett v. New Orleans, 474. Barrington v. Neuse Eiver Ferry Co., 524. Barrows v. Sycamore, 95, 344. Barry v. Goad, 579. Bartch v. Cutler, 215. Barter v. Commonwealth, 318, 466. Barthet v. New Orleans, 317. Bartlett v. Clarksburg, 378. Barton v. Pittsburg, 161. Bassett v. Barbin, 463. Bassett v. Fish, 495, 569. Bassett v. New Haven, 301. Bassett v. Porter, 577. Bass Foundry & Machine Works V, Board of Com'rs of Parke Cpunty, 255, 430. Bateman v. Florida Commercial Co., 61. Bates V. Bassett, 371. Bates V. Coronado Beach Co., 504. Bates V. Porter, 424, 425. Bates V. Twist, 281. Bates V. Westborough, 404. Bates County v. Winters, 547. Bath V. Eeed, 218. Bath County v. Amy, 462. Batsel V. Blaine, 165. Battis, Ex parte, 181, Battle V. Mobile, 444. Bauer v. Franklin County, 543, 544. Bauer v. Rochester, 394, 397. CASES CITKD 591 [The figures refer to pages] Bauman v. Detroit, 401. Bauman v. Ross, 445. Baumgard v. New Orleans, 384. Baumgartner v. Plasty, 19, 130, 317, 324, 325, 328, 340, 525. Bayle t. New Orleans, 489. Beach v. Elmira, 405. Beach v. Leahy, 13, 15, 495, 569, 577, 578. Beachy v. Lamkin, 463. Bealafeld v. Verona, 403. Beard v. Decatur, 215. Beard v. Hopkinsville. 417. Bearden v. Madison, 16, 184. Beardsley v. Hartford, 388, 399. Beardsley v. Smith, 499. Beaudry v. Valdez, 288. Beaumont v. Wilkes-Barre, 300. Beazan v. Mason City, 387. Bedell v. Long Island R. Co., 96. Bedford City v. Sitwell, 390. Beck V. Buflfalo, 400. Beck V. Holland, 284. Beck V. Puckett, 515, 519, 521, 526. Beck V. St. Paul, 415. Becker v. Henderson, 162. Becker v. Washington, 286. Beebe v. Little Rock, 251. Beebe v. Supervisors of Sullivan County, 487. Beekman v. Saratoga & S. R. Co., 523. Beekman v. Third Ave. R. Co., 355. Beers v. Dalles City, 154. Beers, use of Platenius v. Arkan- sas, 377. Beiling v. EvansvlUe, 179, 321, 526. Bell V. Henderson, 390. Bell V. Kirkland, 249, 250, 253, 258. Bell V. Mobile & O. R. Co., 513. Bell V. Platteville, 486. Bell v. York, 400. Bell County v. Alexander, 518. Bellaire Goblet Co. v. Findlay, 263. Belling V. Evansville, 321. Bellinger v. Gray, 561. Bellmeyer v. Independent Dist. of Marshalltown, 536. Belo V. Forsyth County Com'rs, 546. Beloit V. Morgan, 81. Bender v. Streabich, 581. Bennett v. Buffalo, 306, 454. Bennett v. Fifield, 396. Bennett v. Lovell, 395. Bennett v. Marion, 405. Bennett v. Mt. Vernon, 351. Bennett v. Sing Sing, 398. Bennett v. Whitney, 229. Bennett's Branch Imp. Co., Ap- peal of, 11, 16. Benson v. Carmel, 424. Benson v. Hoboken, 457. Benson v. New York, 94. Bentley v. Board of Com'rs of Chisago County, 535. Benton v. Boston City Hospital, 381. •Benton v. Hamilton, 83, 262. Bergman v. Cleveland, 334, 337. Berlin v. Gorham, 17, 22, 37, 38, 40, 49, 145. ^ Berlin Iron Bridge Co. v. San Antonio, 197. Betham v. Philadelphia, 377, 403. Bethlehem City Water Co. v. Bethlehem Borough, 127. Bethune-v. Hughes, 336. Beiz V. Llmlngl, 398. Bevington v. Woodbury County, 516. Blddle V. Willard, 218. Bleber v. St. Paul, 350. Bier V. Gorrell, 216, 559. Bietry v. New Orleans, 266. Bigelow V. Perth Amboy, 163. Bigelow V. Randolph, '500. Bill V. Denver, 289. BllUnghurst v. Spink County, 451. Bllllngsley v. State, 228. Bill Posting Sign Co. v. Atlantic City, 166. Bills V. Goshen, 189. Bird V. Perkins, 61. Blrdsall v. Clark, 155. Blscoe V. Coulter, 446. 592 CASES CITED [The figures refer to pages] Bishop V. Banks, 490. Bissell T. Davison, 321, 525. Bissell V. Jeffersonville, 155, 160, 238. Blsseli V. Kankakee, 414, 485, 547. Bissell V. Michigan Southern & N. I. R. Co., 250. Bizzell, Ex parte, 186, 187. Black V. Board of Com'rs of Bun- combe County, 535, 540. Black V. Columbia, 471. Black V. Cornell, 578, 579, 580. Black V. Detroit, 427. Black V. State, 193. Blackburn v. Oklahoma City, 118, 195. Blackwell v. Thayer, 220. Blades v. Board of Water Com'rs of City of Detroit, 77, 436. Blair v. Charleston, 293. Blair v. Chicago, 355. Blair v. Cuming County, 547. Blair v. Forehand, 332, 340. Blair v. Lantry, 226, 425. Blake V. Pontiac, 379. Blanchard v. Bissell, 19, 101, 102, 109, 164, 282. Blanchard y. Blackstone, 225. Blanchard v. Bristol, 340. Blanchard v. Hartwell, 117. . Blanchard v. Ivers, 339. Blatchley v. Moser, 193. Blauvelt v. Nyack, 51. Blennerhassett v. Forest City, 353. Blessing v. Galveston, 17, 37, 51. Bliss V. Ball, 349. Block V. Jacksonville, 323. Blood V. Beal, 159. Blood V. Manchester Electric Light Co., 247. Blood V. Sayre, 560. Bloomer v. StoUey, 147. Bloomfield V. Charter Oak Nat. Bank, 495, 496, 572, 575. Bluedorn v. Missouri Pac. R. Co., 183. Blydenburgh v. Miles, 334. Blyhl V. Waterville, 398. Boalt V. Williams County Com- missioner's, 503. Boardman v. Hayne, 224. Board of Aldermen v. Darrow, 213, 220. Board of Auditors of Wayne County V. Benoit, 558. Board of Chosen Freeholders of Altantic County v. Weymouth Tp., 459. Board of Chosen Freeholders of Sussex County v. Strader, 499, 529. Board of Com'rs of Bladen Coun- ty V. Clarke, 514. Board of Com'rs of Brown Coun- ty V. Butt, 497. Board of Com'rs of Buncombe County V. Payne, 531. Board of Com'rs of Cass County V. Ross, 530. Board of Com'rs of Clinton Coun- ty V. Hill, 519. Board of Com'rs of Comanche County V. Lewis, 546. Board of Com'rs of Custer Coun- ty V. De Lana, 546. Board of Com'rs of Delaware County V. McClintock, 543. Board of Com'rs of El Paso Coun- ty V. Bish, 570. Board of Com'rs of Floyd County V. Day, 543. Board of Com'rs of Fremont County V. Perkins, 557. Board of Com'rs of Gibson Coun- ty V. Motherwell Iron & Steel Co., 519. Board of Com'rs of Greer County V. Watson, 529. Board of Com'rs of Gunnison County V. E. H. Rollins & Sons, 553. Board of Com'rs of Hamilton County V. Mighels, 11, 13, 15, 20, 493, 494, 497, 502, 503, 506, 512, 582. CASES CITED [The a-gures refer to pages] 593 BtiaM of Gom'rs of Harrison County V. Byrne, 518. Board of Com'rs of Huntington County V. Boyle, 539. Board of Com'rs Of Huntington County V. Buchanan, 555. Board of Com'rs of Jasper County V. Allman, 530. Board of Com'rs of Jay County v. Taylor, 516. Board of Com'rs of Knox County V. Johnson, 207, 476. Board of Com'rs of Knox County . V. Montgomery, '499. Board of Com'rs of Lake County V. SutlifC, 553. Board of Com'rs of Montgomery County V. FuUen, 471, 583. Board of Com'rs of Morgan Coun- ty V. Seaton, 520. Board of Com'rs of Norfolk Coun- ty V. Cox, 517. Board of Com'rs of Orange Coun- ty V. Bitter, 520, 531. Board of Com'rs of Owen County V. Spangler, 489. Board of Com'rs of Oxford v. Union Bank of Richmond, 549, 550. Board of Com'rs of Perry County V. Lamax, 517, 520. Board of Com'rs of Seward Coun- ty, Kan. V. .astna Life Ins. Co., 419. Board of Com'rs of Shawnee County V. Carter, 532. Board of Com'rs of Socorro Coun- ty V. Leavitt, 143. Board of Com'rs of Sullivan Coun- ty V. Amett, 555. Board of Com'rs of Tippecanoe County V. Cox, 237, 533, 563. Board of Com'rs of Tippecanoe County V. Mitchell, 198. Board of Com'rs of Warren Coun- ty V. Gregory, 555. Board of Com'rs of Washington County V. Clapp, 555. COOL.MUN.COEP. — 38 Board of Council of Harrodsburg V. Renfro, 175. Board of Councilmen of City of Frankfort v. Brawner, 202. Board of Councilmen of City of Frankfort v. Commonwealth, 382. Board of Councilmen of City of Frankfort v. Mason, 115. Board of Councilmen of City of Frankfort v. Murray, 289. Board of Directors for Leveeing Wabash River v. Houston, 6, 11, 14. Board of Education v. Board of Education, 65. Board of Education v. Commis- sioners, 79. Board of Education v. Quick, 214. Board of Education of City and County of San Francisco v. Fowler, 84. Board of Education of Covington V. Board of Trustees of Public Library of City of Covington^ 76. Board of Education of Flatwoods Dist. V. Berry, 58, 61. Board of Education of Lexington V. Moore, 215. Board of Education of Territory V. Territory, 489. Board of Health of Borough of Glen Ridge v. Werner, 316. Board of Improvement Dist. No. 60 V. Cotter, 281. Board of Liquidators of City Debts V. Municipality No. 1, 85, 426. Board of School Com'rs of Anne Arundel County v. Gantt, 520. Board of Selectmen of Jersey City V. Dummer, 469. Board of Sup'rs of Bedford Coun- ty V. Bedford High School, 578. Board of Sup'rs of Carroll Coun- ty V. Smith, 550. Board of Sup'rs of Culpeper County V. Gorrell, 517. 594 CASES CITED [The figures refer to pages] Board of Sup'rs of Jefferson County V. Arrigtii, 529, 540. Board of Sup'rs of Lawrence County V. Brookhaven, 555. Board of Sup'rs of Mercer Coun- ty V. Hubbard, 549. Board of Sup'rs of Eichmond County V. Wandel, 514. Board of Sup'rs of St. Joseph Coil? ty V. CofCenbury, 465. Board of Sup'rs of Sangamon County V. Springfield, 75, 76, 77, 79, 432, 543. Board of Sup'rs of Warren Coun- ty V. Patterson, 511. Bodge V. Philadelphia, 385. Bodine v. Trenton, 142, 279. Boehm v. Baltimore, 202, 230. Boehme v. Monroe, 171. Bogert V. Elizabeth, 297. Bohen, Ex parte, 316, 321. Bohen v. Waseca, 362, 399. Boice V. Plalnfleld, 458. BoUes V. Brimfield, 429. BoUes V. Perry County, 546, 551. Bolster v. Ithaca St. R. Co., 369. Bond V. Hiestand, 142, 148. Bonebrake v. Wall, 230. Bonesteel v. New York, 237, 536. Bonner v. State, 213. Bonsall V. Lebanon, 306. Booker v. Donohoe, 559. Booth V. Carthage, 170. Booth V. McGuinness, 70. Booth V. Woodbury, 439, 443. Borchard v. Board of Sup'rs of "Ventura County, 43. Boro V. Phillips County, 425, 563. Borough of Alliance, In re, 103. Borough of Avoca v. Pittston, J. & A. St. Ry. Co., 158, 161. Borough of Blooming Valley, In re, 47. Borough of Brookville v. Arthurs, 388. Borough of Butler, Appeal of, 321. Borough of Dunmore, Appeal of, 66. Borough of Freeport v. Marks, 171, 172. Borough of Glen Ridge v. Stout, 58. Borough of Henderson v. Sibley County, 260, 530, 538, 543. Borough of Larksville, In re, 103. Borough of Little Meadows, In re, 46. Borough of Mauch Chunk v. Kline, 400. Borough of New Hope v. Western Union Tel. Co., 336. Borough of Norristown v. Fitz- patrick, 198. Borough of St. Peter v. Bauer, 68. Borough of Shamokin v. Shamo- kin & M. C. E. R. Co., 488. Borough of Stamford v. Studwell, 326. Borough of Tarentum v. Moore- head, 257. Borough of Taylor, In re, 43. Borough of Uniontown v. Com- monwealth, 276. Borough of Warren v. Geer, 334. Borough of York v. Forscht, 251. Boston Belting Co. v. Boston, 406. Boston Electric Co. v. Cambridge, 257. Boston Electric Light Co. v. Bos- ton Terminal Co., 310. Boswell V. Board of Com'rs of Albany County, 555. Bosworth V. New Orleans, 195. Bott V. Pratt, 63. Bouldin v. Lockhart, 513. Bourbon Stock Yard Co. v. Wool- ey, 363. Bourgeois, Ex parte, 318, 319. Bousquet v. State, 151. Boutte V. Emmer, 226. Bow y. AUenstown, 53, 54, 55, 56, 577. Bowden v. Derby, 227. CASES CITED 595 [The figures refer to pages] Bowditch V. Boston, 317, 328, 472. Bowe V. St. Paul, 214. Bower v. Bainbridge, 301, 458. Bowerbank v. Morris, 216. Bowers V. Bowers, 195. Bowers v. Horen, 188. Bowes V. Boston, 396. Bowl&s V. District of Columbia. 319. Bowman v. St. John, 189. Bowyer v. Camden, 45, 143, 203. Boyce v. Tuhey, 283. Boyd V. Chambers, 145. Bozarth t. McGilicuddy, 241. Brabham v. Board of Sup'rs of Hinds County, 528. Brabon t. Seattle, 343, 350. Brace v. New York Cent. R. Co., 343. Braden v. Stumph, 513. Bradford v. Anniston, 391. Bradford v. City and County of San Francisco, 264. Bradford v. Pontiac, 279. Bradford County v. Horton, 519. Bradish v. Lucken, 66. Bradley v. Ballard, 250. Bradley v. Commissioners, 510. Bradley v. McAtee, 487. Bradley v. West Duluth, 280. Bradwell v. Illinois, 204. Braldy v. Bartlett, 265. Brady v. Bayonne, 134; 154. Brady v. Howe, 210. Brady v. Lowell, 392. Brady v. Northwestern Ins. Co., 325, 326. Brady v. State, 64. Brady v. Supervisors of City and County of New York, 537. Brainard v. Colchester, 426. Brainard v. Kings County, 529. Brake v. Kansas City, 398. Brakken v. Minneapolis & St. L. R. Co., 349. Brand v. San Antonio, 154. Brander v. Chesterfield Justices, 223. Brayton v. Fall River, 383. Brei] v. Buffalo, 391. Brenham v. German-American Bank, 269, 414, 422. Brenke v. Belle Plaine, 105. Brennan v. Weatherford, 117. Brent v. Kimball, 340. Brevoort v. Detroit, 301. Brewer Brick Co. v. Brewer, 438. Brewls v. Duluth, 110. Brewster v. Hough, 426. Brewster v. Syracuse, 80, 86, 444. Brewster County v. Presidio County, 529. Briekerhoff v. Board of Educa- tion, 494. Brick Presbyterian Church Corp. v. New York, 246, 251, 426. Bridgenor v. Rodger, 513. Briegel v. Philadelphia, 381. Brieswick v. Brunswick, 188. Briggs V. Borden, 580. Briggs V. Lewiston, 467. Briggs V. Russellville, 447. Bright V. Halloman, 562, 564. Brighton v. Toronto, 185. Brinkerhoffi v. Jersey City, 211, 557. Brinton, Appeal of, 102. Prissenden v. Clay County, 556. Bristol V. New Chester, 17, 110. Brittish Commercial Life Ins. Co. V. Commissioners of Texas & Assessments in New York, 451. Brittle v. People, 23. Britton v. New York, 246, 251, 312. Britton v. Steber, 74, 199. Broadbelt v. Loew, 362. Broadfoot v. Fayetteville, 117, 118. Broad St., In re, 160, 171. Broadway Baptist Church v. Mc- Atee, 306. Brobine v. Revere, 369. Broburg v. Des Moines, 400. Brockman v. Creston, 252, 486, 489. 596 CASES CITED [The figures refer to pages] Broderick v. St. Paul, 240. Brodhead v. Milwaukee, 440, 548. Broking v. Van Valen, 54, 55. Brome v. Cuming County, 537. Bronson v. Washington, 470. Brooklyn Park Com'rs v. Arm- strong, 320, 368. Brooklyn Teachers' Ass'n v. Board of Education of City of New York, 472. Brooks V. Fischer, 40. Brooks V. Mangan, 226. Brophy v. Hyatt, 332. Brophy v. Perth Amboy, 190. Brotherton v. Board of Police Com'rs of City of Baltimore, 202. Broughton v. Pensacola, 48, 116, 117, 118, 436. Brown v. Beatty, 523. Brown v. Blake, 206. Brown v. Bon Homme County, 535, 540, 545, 546, 548, 549, 550. Brown y. Carpenter, 340. Brown v. Central Bermudez Co., 281, 301. Brown v. Chillicothe, 398. Brown v. Corry, 417. Brown v. Crego, 463. Brown v. District of Columbia, 159. Brown v. Duplessis, 362. Brown v. Gates, 462, 468. Brown v. Grand Kapids, 294. Brown v. Hines, 65. Brown v. Houston, 243, 477. Brown v. Hunn, 326. Brown v. Louisburg, 396. Brown v. Lowell, 291. ■ Brown v. Milllken, 66. Brown v. New York, 541. Brown v. Rundlett, 224. Brown v. Russell, 195, 208, 209. Brown v. Saginaw, 284. Brown v. Town Board of School Directors of Jacobs, 423. Brown v. Turner, 199, 213. Brown v. Vinalhaven, 379. Brown's Adm'r v. Guyandotte, 377. Brown's Case, 68. Browne v. Boston, 415. Browning v. Springfield, 530. Brule County v. King, 460. ^ Brumm's Appeal, 16. Brummitt v. Ogden Waterworks , Co., 134. Bruner v. Bryan. 216. Brunswick Gas Light Co. v. Brunswick Village Corp., 276. Brush V. New York, 396. Brush Electric Light & Power Co. of Montgomery v. Montgomery, 259, 260. Bryant v. St. Paul, 379, 471. Bryant's Lessee v. McCandless, 351, 483. Buchanan v. Beaver Borough, 223. Buchanan v. Duluth, 365. Buchanan v. Litchfield, 415. Buck V. Eureka, 214, 215, 259, 260, 416. Buck V. Miller, 445. Buckley v. Kansas City, 391, 398. Buckman v. Cuneo, 305. Bucroft V. Council Bluffs, 289. Budd V. Camden Horse R. Co., 170, 357. Budlong, Petition of, 210. Buell V. Ball, 171. Buell V. Buckingham, 159. Buell V. State, 131. Buffalo City Cemetery v. Buffalo, 303. Buffalo & N. F. R. Co. v. Buffalo, 329. Buffalo & N. Y. C. R. Co. v. Braln- ard, 524. Buford V. State, 113, 148. Bull V. Quincy, 457. Bull V. Read, 50. Bull V. Sims, 422. Bullis V. Chicago, 45. Bullitt V. Selvage, 289. Bullitt County v. Washer, 155. Bunting v. Willis, 218. CASES CITED 597 [The figures refer to pages] Burbank v. Fay, 354. Burch V. Hardwicke, 75, 138, 198, 199, 200, 201. Burckhardt v. Atlanta, 284. Burden v. Stein, 315, 438. Burdick v. Richmond, 429. Burditt V. Swenson, 324. Burford v. Grand Rapids, 382, 401. Burger v. Pliiladelphia, 403. Burgess v. Jefferson, 242. Burghard v. Fitch, 286. Burk V. State, 112. Burke v. Edgar, 216. Burke v. Jeffries, 39. Burlington Sav. Bank v. Clinton, Ill- Burlington & M. R. Go. V. Spear- man, 302. Burnes v. Atchison, 35, 434, 456. Burnes v. St. Joseph, 356, 390, 395, 396. Burness v. Multnomah County, 562. Burnett, Ex parte, 131, 132, 337, 455, 456. Burnett v. Abbott, 467, 517. Burnett v. Maloney, 515, 521, 529. Burnett v. New York, 366. Burnett v. Sacramento, 296. Burns v. Bradford, 398. Burns v. New York, 195. Burr V. Atlanta, 454. Burr V. New Castle, 345. Burrill v. Augusta, 380. Burrill v. Boston, 250, 260, 429, 465, 538, 571. Burt V. Winona & St P. R. Co., 152, 211, 212. Bush V. Geisy, 431. Bush V. Portland, 251. Busklrk v. Strickland, 227. Butler t. Board of Com'rs of Neosho County, 537. Butler V. Dunham, 238. Butler V. Mountclalr, 289. Butler V. Passaic, 164, 166. Butler V. Walker, 45, 113, 152 Butler & Co. v. Shirley Tp. School Dist, 581. Butterfield v. Treichler, 481. Butterworth v. Bartlett, 358. Butz V. Cavanaugh, 382. Butz V. Muscatine, 91, 469. Byers v. Commonwealth, 331, 340. Byers v. Manley Mfg. Co., 245. Byington v. Merrill, 389. Byram v. Foley, 294. Byrne v. East Carroll Parish, 530. Cadmus v. Farr, 159, 206. Cain V. Brown, 113. Cain V. Davie County Com'rs, 296. Cain V. Wyoming, 93, 417. Cairncross v. Pewaukee, 389. Caldwell v. Alton, 336. Caldwell v. Burke County Jus- tices, 561, 564. Caldwell v. Nashua, 293. Caldwell v. State, 188. Calhoun v. Fletcher, 173. California v. Central Pac. R. Co., 33. California Imp. Co. v. Reynolds, 242. CaUfornla Reduction Co. v. San- itary Reduction Works of San Francisco, 314. Call V. Chadbourne, 41. Callagan v. Hallett, 556. Callam v. Saginaw, 372, 373, 452. Callan v. Wilson, 191. Callanan v. Gilman, 95, 344, 358, 359. Callaway v. Mims, 178. Callen v. Junction City, 99, 100, 101. Callender v. Marsh, 291. Calloway v. Strum, 219. Calwell V. Boone, 377. Camden & A. B. Co. v. May's Landing, etc., R. Co., 250. Camp V. Knox County, 544. Camp V. Minneapolis, 111. 598 CASES CITED [The figures refer to pages] Campana V. Calderhead, 581. Campbell, Ex parte, 337. Campbell v. Polk County, 543, 545, 563. Campbell t. Polk County Court, 559. Campbell v. Thompson, 190. Campbell v. Wainright, 43. Campbell's Adm'x t. Montgomery, 320, 387, 471. Canal St., In re, 108. Canavan v. Oil City, 396. Cannon v. Board of Canvassers of Providence, 477. Cannon County Justices v. Hood- enpyle, 561. Canova v. Williams, 186. Capdevlelle v. New Orleans & S. P. R. Co., 311, 368. Capital Bank of St. Paul v. School Dist. No. 53, 579, 580. Card well v. Hargis, 518. Carey v. Washington, 313, 318. Carland v. Custer County, 152. Carleton v. People, 211. Carlisle v. Saginaw, 212. Carlyle Water, Light & Power Co. V. Carlyle, 247. Carney v. Marseilles, 393, 402. Carondelet Canal Nav. Co. v. New Orleans, 79. ' Carpenter v. People, 82. Carpenter v. Yeadon Borough, 168. Carr v. Northern Liberties, 364. Carr v. State, 221. Carrier v. Gordon, 448, 560. Carriger v. Morristown, 446. Carrington v. St. Louis, 381. Carrithers v. Shelbyville, 98. Carroll v. Board of Police of Tis- hamingo County, 499. Carroll v. St. Louis, 556. Carroll v. Siebenthaler, 558. Carroll v. Tuskaloosa, 317. Carroll County v. Smith, 546. Carroll County v. t'nlted States ex rel. Reynolds, 543, 544, 563. Carron v. Martin, 238. Carson v. McPhetridge, 205. Carstesen v. Stratford, 391. Carter v. Cambridge & B. Bridge Proprietors, 87, 567. Carter v. Wade, 434. Carter County v. Sinton, 547. Carthage v. Carthage Light Co., 272. Cary v. Blodgett, 127. Gary Library v. Bliss, 48. Cascaden v. Waterloo, 159, 160. Case V. Johnson, 280, 287. Casey v. Chase, 479. Casey v. Pilkington, 423. Cash V. Douglasville, 109. Casinello, Ex parte, 322. Gason v. Ottumwa, 399. Cass County v. Gillett, 550. Cass County v. Johnston, 576. Gass Farm Go. v. Detroit, 242. Castleberry v. Atlanta, 361. Gate V. Martin, 151. Cathcart v. Comstock, 15, 582. Oatlin V. Hull, 450. Oatlin V. Valentine, 490. Gaulfield v. State, 220. Cedar Rapids Water Co. v. Cedar Rapids, 237, 250. Cemansky v. Fitch, 305. Central Bitulithlc Pav. Go. v. Mt. Clemens, 260. Central Bridge Corp. v. Lowell, 201. Central Park Com'rs, In re, 438. Central R. Co. v. Elizabeth, 165. Central Transp. Go. v. Pullman's Palace Car Co., 254. Chadbourne v. Newcastle, 470. Chadwell, Ex parte, 18, 121. Chaffee County Com'rs v. Potter, 553. Ghalkley v. Richmond, 404. Chalstran v. Board of Education of Township High School Dist. No. 13, 109, 115. Chamberlain v. Board of Educa- tion of Cranbury Tp., 577. CASES CITED 599 [The figures refer to pages] Chamberlain v. Cleveland, 445. Chamberlain v. Woolsey, 460, 461. Chambers v. St. Louis, 144, 483. Champer v. Greencastle, 125, 179. Champion v. Crandon, 403. Chancellor of State of New Jersey V. Elizabeth, 460. Chandler v. Boston, 105. Chapman v. Douglas County, 254, 538. Charleston City Council v. Hei- senbrlttel, 337. Charnock v. District Tp. of Col- fax, 469. Chase v. City Treasurer of Los Angeles, 279. Chase v. Lowell, 395. Chase v. Portland, 293. Chatham County Com'rs v. Sea- board Air Line R. Co., 303. Cheaney v. Hooser, 17, 37, 38, 105. Cheatham v. Shearon, 329. Cheeney v. Brookfield, 236, 237, 430. Cheney, Ex parte, 331. Chesapeake & O. Canal Co. v. Baltimore & O. R. Co., 7. Chesapeake & O. R. Co. v. Mays- ville, 329. Chesapeake & P. Tel. Co. v. Balti- more, 355. Chicago, B. & Q. B. Co. v. Hitch- cock Co., 449. Chicago, B. & Q. R. Co. v. Iowa, 5, 14, 16. Chicago, B. & Q. B. Co. v. Klein, 575. Chicago, B. & Q. R. Co. v. Quincy, 290. Chicago General R. Co. v. Chicago City R. Co., 353. Chicago, I. & L. R. Co. v. Salem, 169. Chicago League Ball Club v. Chi- • cago, 378. Chicago Packing- & Provision Co. V. Chicago, 20, 140, 315. Chicago, R. I. & P. R. Co. v. Union Pac. R. Co., 250. Chicago, St. L. & N. O. B. Co. v. Kentwood, 60. Chicago Union Traction Co. v. Chicago, 127, 165, 293, 312. Chicago Union Traction Co. v. Stanford, 3U. Chicago & A. R. Co. v. Adler, 79. Chicago & A. R. Co. v. Carlinville, 180. Chicago & A. R. Co. v. Winters, 192. Chicago & E. I. R. Co. v. Hines, 167. Chicago & E. R. Co. v. Keith, 125. Chicago & N. W. R. Co. v. Oconto, 101. Chicago & W. t. R. Co. v. Dunbar, 70, 91. Chidsey v. Canton, 499. Child V. Boston, 382, 403. Childress v. Nashville, 333. Chilson V. Wilson, 278. Chilton V. Gratton, 553. Chimene v. Baker, 179, 325. Chinn v. Trustees, etc., 306. Chipman v. Wayne County Audi- tors, 473. Chippewa Bridge Co. v. Durand, 241, 243, 257, 287. Chisholm v. Georgia, 21, 33. Chisholm v. Montgomery, 535, 545, 550. Chittenden v. Wurster, 209. Choisser v. People, 532. Chosen Freeholders of Hudson County V. State, 158. Christ V. Webster City, 106. Christensen, Ex parte, 79, 165, 169. Christenson v. Tate, 178. Christie v. Maiden, 486. Christy v. Kingfisher, 220. Church V. People, 288. Churchill v. Walker, 142. Churchman v. Indianapolis, 287. 301. 600 CASES CITED [The figures refer to pages] Cicero Lumber Co. v. Cicero, 80, 95, 187, 344. Cincinnati v. White, 348, 358. Cincinnati, N. O. & T. P. R. Co. V. Baugbman, 113. Citizens' Bank v. Terrell, 553. Citizens' Bank of Des Moines v. Spencer, 256, 260, 287. Citizens' Coach Co. v. Camden Horse R. Co , 362. Citizens' Gas & Mining Co. v. Eiwood, 140, 164. Citizens' Sav. Bank v. Green- burgh, 421. Citizens' Savings & Loan Ass'n V. Topeka, 438, 439, 440, 442, 454, 547. Citizens' St. E. Co. v. Memphis, 345. Citizens' Water Co. v. Bridgeport Hydraulic Co., 264. City Council v. Dunn, 466. City Council of Augusta v. Bur- urn, 352. City Council of Augusta v. Dun- bar, 449, 461. City Council of Augusta v. Hud- son, 385. City Council of Augusta v. Lom- bard, 385. City Council of Augusta v. Tharpe, 397. City Council of Charleston v. Ben- jamin, 130. City Council of Charleston v. Blake, 327. City Council of Charleston v. Elford, 130, 327. City 'Council of Charleston v. Goldsmith, 336. City Council of Charleston v. King, 68. City Council of Charleston v. Palmer, 327. City Council of Charleston v. Pepper, 68, 69. City Council of Montgomery v. Gilmer, 364, 404. City Council of Montgomery v-. Montgomery & Wetumpka Plank Road Co., 131, 256. City Council of Montgomery v. Parker, 183. City Imp. Co. v. Broderick, 243. City of Akron v. France, 489. City of Albany v. CunlifC, 403,. 471. City of Allegheny v. Zimmerman^ 362. City of AUentown v. Western Un- ion Tel. Co., 336. City of Alpena v. Alpena Circuit Judge, 485. City of Alton v. Job, 277. City of Alton v. Middleton's Heirs, 289. City of Alton v.Mulledy, 155, 536,. 540. City of Amboy v. Sleeper, 318. City of Americus v. Eldridge, 357. City of Americus v. Perry, 74. City of Anderson v. East, 377. City of Anderson v. O'Conner,. 315, 322. Ci'ty of Annapolis v. Harwood, 299, 435, 454, 455. City of Annistou v. Davis, 162. City of Atchison v. Price, 299,- 365. City of Atlanta v. First Presby- terian Church, 303. City of Atlanta v. Gabbett, 302. Cif7 of Atlanta v. Smith, 281. City of Auburn v. Union Water Power Co., 156. City of Augusta v. North, 461. City of Austin v. Austin City Cemetery Ass'n, 321. City of Austin v. Bartholomew,. 259. City of Austin v. Valle, 415. City of Ballard v. keane, 199. City of Baltimore v. Beck, 397. , City of Baltimore v. Board of Po- lice of City of Baltimore, 80. City of Baltimore v. Boyd, 283. CASES CITED [The figures refer to pages] 601 •City of Baltimore v. Eschbach, 196, 230, 231. City of Baltimore v. Gill, 415, 485. City of Baltimore v. Hanson, 273, 274. City of Baltimore v. Horn, 79. City of Baltimore v. Howard, 461. ■City of Baltimore v. Johns Hop- kins Hospital, 279. 'City of Baltimore v. Keeley Inst., 526. •City of Baltimore v. Marriott, 388. City of Baltimore v. Musgrave, 230. ■City of Baltimore v. Porter, 562. City of Baltimore v. Poultney, 149, 154, 159, 201, 320. ■City of Baltimore v. Proprietors of Green Mount Cemetery, 303. City of Baltimore v. Radecke, 174, 179. ■City of Baltimore v. Reitz, 453. City of Baltimore v. Reynolds, 237, 239. City of Baltimore v. Ritchie, 214. City of Baltimore v. Scharf, 18. Cit7 of Baltimore v. Schnitker, 404. City of Baltimore v. State, 74, 80, 144, 446. •City of Baltimore v. Stewart, 284. City of Beardstown v. Clark, 397. ■City of Beatrice v. Edminson, 422. City of Belleville v. Citizens' Horse R. Co., 186. City of Belton v. Central Hotel Co., 490. •City of Benwood v. "Wheeling R. Co., -158. City of Biddeford v. Yates, 134. •City of Birmingham v. Alabama G. S. R. Co., 184. ■City of Birmingham v. Land, 406. City of Birmingham v. Lewis, 392, 395, 396. City of Birmingham v. Railroad Co., 182. City of Birmingham v. Rumsey, 455, 468. City of Birmingham v. Starr, 391. City of Bloomington v. Brokaw, 292, 469. City of Bloomington v. Chicago & A. R. Co., 284, 297, 298. City of Bloomington v. Richard- son, 331. City of Bluefleld v. Johnson, 166. City of Bonham v. Taylor, 432. City of Boonville ex rel. Cosgrove V. Stephens, 288. City of Boston v. Bobbins, 470. City of Boston v. Schaffer, 317, 334, 335, 464. City of Boulder v. Niles, 390. City of Bowling Green v. Carson, 184, 339. City of Brazil v. McBride, 153. City of Brenham v. Brenham Water -Co., 247, 251, 265. City of Bridgeport v. Housatonic R. Co., 469. City jot Bridgeport v. New Tork & N. H. R. Co., 303, 444. City of Brooklyn v. Breslin, 335, 338. City of Brooklyn v. Furey, 128, 129. City of Brooklyn v. Toynbee, 318. City of Brownville v. Cook, 190. City of Brunswick v. Finney, 50. City of .Bryan v. Page, 238, 259, 540. City of Buffalo v. Bettinger, 234, 465. City of Buffalo v. Collins Baking Co., 181, 333. City of Buffalo v. Hill, 338. City of Buffalo v. Linsman, 336. City of BufCalo v. New York, L. E. & W. R. Co., 328. City of Buffalo t. Schleifer, 140. 602 CASES CITED [The figures refer to pages] City of Burllngame v. Thompson, 310. City of Burlington v. Burlington & M. E. Co., 461. City of Burlington v. Dennison, 155. City of Burlington r.Leebrick, 31, 99, 100. City of Burlington v. Quick, 306. City of Butte v. School Dist. No. 1, 299. City of Cairo v. Allen, 468. City of Caldwell v. Prunelle, 377. City of Camden v. Allen, 461. City of Canton v. Dewey, 394. City^of Cape Girardeau v. Fougeu, 153, 164, 165. City of Cape May v. Cape May Transp. Co., 330, 457. City of Carbondale v. Wade, 133, 311. City of Carlisle v. Hecklnger, 319. City of Carlyle y. Clinton Coun- ty, 282. City of CarroUton v. Bazzette, 181. City of Cartersville v. Baker, 371. City of Cartersville v. Lahham, 332. City of Carthage v. Burton, 61. City of Carthage v. Duvall, 323. City of Carthage v. Munsell, 323. City of Carthage v. Rhodes, 332. City of Centerville v. Fidelity Trust & Guaranty Co., 417. City of Central v. Sears, 154, 167, 168, 209. City of Centralia v. Smith, 325. City of Chariton v. Simmons, ,320. City of Charleston v. Oliver, 461. City of Charleston v. Reed, 325, 340, 454. City of Chaska v. Hedman, 235; 252, 256. City of Chattanooga v. Geiler, 536. City of Chattanooga v. Norman, 331. City of Chester v. Chester Trac- tion Co., 182. City of Chicago v. Apel, 396. City of Chicago v. Banker, 328. City of Chicago v. Bartee, 335. City of Chicago v. Brown, 296. City of Chicago v. Chicago Union Traction Co., 182. City of Chicago v. Cook County, 81. City of Chicago v. DufEy, 237. City of Chicago v. Fraser, 236. City of Chicago v. Gunning Sys- tem, 129, 174, 179, 314. City 'of Chicago v. Hanreddy, 241, 243. City of Chicago v. Hulbert, 286, 289. City of Chicago v. Illinois Steel Co., 96. City of Chicago v. Jarvis, 390. City of Chicago v. Keefe, 387, 393. City of Chicago v. Lamed, 296. City of Chicago v. McCabe, 391. City of Chicago v. McCoy, 169. City of Chicago v. McDonald, 416. City of Chicago v. McKechney, 154, 257. City of Chicago v. Manhattan Cement Co., 86. City of Chicago v. Netcher, 336. City of Chicago v. Norton Mill. Co., 254. City of Chicago v. O'Brien, 185. City of Chicago v. Peck, 322. City of Chicago v. Pennsylvania Co., 378. City of Chicago v. Railroad Co., 498. City of Chicago v. Ripley, 136. City of Chicago v. Sawyer, 348, 350. City of Chicago v. Selz Schwab & Co., 384, 385. City of Chicago v. Stratton, 183. City of Chicago v. Taylor, 470. City of Chicago v. Walsh, 281. City of Chicago v. Ward, 368. CASES CITED 603 [The figures refer to pages] City of Chicago v. Williams, 230, 427. City of Chicago v. Wright, 199, 509. City of Chillicothe v. Brown, 177. City of Cincinnati v. Bryson, 335. City of Cincinnati v. Buckingham, 339. City of Cincinnati r Cameron, 94 , 115. City of Cincinnati v. Penny, 357, 361. City of Cincinnati v. Rice, 331. City of Cincinnati v. Sherike, 283. City of Cincinnati v. White, 348, 358. City of Cincinnati v. Wilder, 300. City of Circleville v. Sohn, 395. City of Cleveland v. King, 397. City of Clinton v. Cedar Bapids & M. R. Co., 91, 346. City of Clinton v. Clinton Co., 322, 525. City of Clinton v. Phillips, 131. City of Coldwater v. Tucker, 19, 20, 104, 141, 315, 365. City of Colorado Springs v. Ne- ville, 70, 86. City of Columbus v. Jaques, 368. City of Connersville v. Merrill, 288. City of Corry v. Corry Chair Co., 243. City of Corsicana v. White, 471. City of Corvallis v. Carlile, 192, 454. City of Council BlufEs v. Kansas City, St J. & C. B. K. Co., 70, 91. City of Council Bluffs v. Water- man, 202, 215. City of Covington v Bollwinkle, 393. City of Covington v. Johnson, 398. City of Covington v. Ludlow, 162. City of Covington v. McKenna, 264. City of Covington v. Mayberry, 214, 215. City of Covington v. Southgate, 100. City of Crawfordsville v. Braden, 127, 154, 276, 310. City of Cumberland v. Magruder, 142. City of Dallas v. Jones, 397. City of Dallas v. Meyers, 391, 397. City of Dallas v. Moore, 390, 398. City of Dalton v. Wilson, 378, 382. City of Danville v. Hatcher, 187, 311. City of Davenport v. Bird, 190. City of Davenport v. KaufCman, 447. City of Davenport v. Mississippi & M. R. Co., 448, 450. City of Davenport v. Peoria Ma- rine & Fire Ins. Co., 259. City of Dayton v. Glaser, 389. City of Daytona v. Edson, 396. City of Defiance, Ohio, v. Schmidt, 422. City of Delphi v. Bowen, 562. City of Delphi v. Evans, 167, 291. City of Delphi v. Startzman, 103. City of Denver v. Aaron, 390. City of Denver v. Baldasari, 389. City of Denver v. Campbell, 281. City of Denver v. Coulehan, 100, 101. City of Denver v. Dean, 387. City of Denver v. Dumars, 244, 301. City of Denver v. Dunsmore, 376, 390, 405. City of Denver v. Moewes, 390. City of Denver v. Murray, 393. City of Denver v. Sherret, 394. City of Des Moines v. Gilchrist, 326. City of Des Moines v. Keller, 176. City of De , Soto v. Brown, 188. City of Detroit v. Beckman, 383. City of Detroit v. Blackeby, 388, 570. City of Detroit v. Circuit Judge of Wayne County, 276. 604 CASES CITED [The figures refer to pages] City Of Detroit v. Corey, 90, 364, 394, 404, 465. City of Detroit v. Detroit Citizens' St. R. Co., 247. City of Detroit v. Detroit United Ry., 276. City of Detroit v. Detroit & H. Plank Road Co., 89. City of Detroit v. Donovan, 451. City of Detroit v. Jackson, 239. City of Detroit v. Jepp, 461. City of Detroit v. Osborne, 389. City of Detroit v. Park Com'rs, 29, 367. City of Detroit v. Redfleld, 214. City of Detroit v. Robison, 260. City of Dubuque v. Illinois Cent. R. Co., 460. City of Dubuque v. Maloney, 331, 349, 359. City of Duluth v. Dlbblee, 295, 298. City of Duluth v. Krupp, 165, 186. City of Duluth v. Mallett, 184. City of East Dallas v. State, 103. City of Easton v. Drake, 460, 461. City of East Portland v. Mult- nomah County, 565. City of East St. Louis v. East St. Ljouis Gaslight & Coke Co., 417. City of East St. Louis v. Flannl- gen, 425, 432. City of East St. Louis v. Maxwell, 142. City of Ii3ast St. Louis v. St. John, 524. City of East St. Louis v. Weh- rung, 18, 154. City of Elgin v. Thompson, 350. City of Elkhart v. Wickwire, 283. City of El Paso v. Dolan, 395. City of Emporia v. Gilchrist, 284. City of Emporia v. Smith, 100, 103. City of Emporia v. Soden, 223. City of Emporia v. Volmer, 190. City of Emporia v. Wagoner, 183. City of Ensley v. Simpson, 142, 146. City of Erie v. Bier, 167, 243. City of Erie v. Schwingle, 393, 403, 585. City of Eufaula v. McNab, 252, 454, 533. City of Eureka v. Wilson, 186. City of EJvansville V. Dennett, 546. City of Evansville v. Frazer, 397. City of Evansville v. Miller, 323. City of Evansville v. Page, 101,. 102. City of Evansville v. State, 71, 72, 74, 75, 138, 144, 203, 373, 444. City of Fairfield v. Ratcliff, 296,. 299, 434, 454, 455. City of Faribault v. Wilson, 332. City of Fergus Falls v. Boen, 365, 366. City of Fergus Falls v. Edison, . 365. City of Fergus Falls v. Fergus Falls Hotel Co., 235, 256. City of Flora v. Naney, 393, 398, 468. City of Ft. Scott V. W. G. Ead» Brokerage Co., 124, 133, 254. City of Ft. Wayne v. Coombs, 276, 406. City of Ft. Wayne v. Lehr, 252, 460. City of Ft. Wayne v. Rosenthal, 197, 262. City of Ft. Wayne v. Shoaff, 274, City of Ft. Worth v. Crawford, 409. City of Frankfort v. Aughe, 318. City of Franklin v. Harter, 399. City of Freeport v. Isbell, 396. City of Fremont v. Dunlap, 400. City of Frostburg v. Wineland, 135. City of Fulton v. Northern IlL nols College, 251. City of Gadsboro v. MofCett, 239, City of Galena v. Amy, 426. CASES CITED 605 IThe figures refer to pages] City of Galena v. Corwith, 234, 266, 414, 421. City of Galesburg v. Hawkinson, 19, 100, 102. City of Galveston v. Devlin, 371. Cil7 of Galveston v. Hutches, 201. City of Galveston v. Loonie, 234, 265, 275. City of Galveston v. Morton, 540. City of Galveston v. Posnainsky, 388, 409, 495, 501, 570. City of Geneva v. Geneva Tel. Co., 355. City of Girard v. Bissell, 336. City of Goldsboro v. MofCett, 238. City of Goshen v. Croxton, 190. City of Goshen v. England, 387. City of Grand Rapids v. Blakely, 467. City of Grand Rapids v. Brandy, 185. City of Grand Rapids v. De Vrles, ■ 186, 265, 322. City of Grand Rapids v. Grand Rapids & I. R. Co., 252. City of Grand Rapids v. Newton, 182, 320. City of Grand Rapids v. Norman, 170. City of Grayville ^. Gray, 486. City of Green Bay v. Brauns, 161, 167. City of Greencastle v. Allen, 431. City of Greenville v. Anderson, 229. City of Greenville v. Greenville Waterworks Co., 265. City of GrifiBn v. Inman, 142, 148. City of Griffin v. Johnson, 402. City of Guthrie v. New Vienna Bant. 82. City of Guthrie v. Territory, 23, 87. City of Guthrie v T. W. Harvey Lumber Co., 30. City of Guthrie v. Wylic 18, 59, 66, 106. City of Hagerstown v. Wltmer, 331. City of Hammond v. Evans, 423. City of Hannibal v. Draper, 348. City of Hannibal v. Hannibal & St. J. R. Co., 345. City of Harrlsburg v. Sheck, 142. City of Hartford v. Mechanics' Sav. Bank, 305. City of Helena v. Kent, 313. City of Helena v. Mills, 415. City of Helena v. Thompson, 376. City of Helena v. United States, 473. City of Henderson v. Lambert, 305. City- of Henderson v. Young, 126, 127. City of Hoboken v. Ivison, 66. City of Houston v. Gulf, C. & S. F. R. Co., 346. City of Hughes v. Carl, 445. City of Hull V. Horner, 55. City of Huntington v. Cheesbro, 336. City of Huron v. Bank of Volga, 490. City of Huron v. Second Ward Sav. Bank, 269, 417. City of Independence v. Cleve- land, 125. City of Independence v. Trou- valle, 191, 468. City of Indianapolis v. Bleler, 173, 335. City of Indianapolis v. Consum- ers' Gas Trust Co., 165. City of Indianapolis v. Geisel, 221. City of Indianapolis v. Huegele, 193. City of Indianapolis v. Imberry, 162, 164. City of Indianapolis v. Indianap- olis Gaslight & Coke Co., 84, 141, 142, 155, 165, 263, 265, 276. City of Indianapolis v. Lawyer, 45T. 606 CASES CITED [The figures refer to pages] City of Indianapolis v. Patterson, 348. City of Indianapolis v. Ritzinger, 106. City ofl, IndianapoUs v. Wann, 415. City of lola v. Birnbaum, 378. City of Jackson v. Newman, 335. City of Jacksonville v. Drew, 402. City of Jacksonville v. Jackson- ville R. Co., 368. City of Jacksonville v. Ledwith, 338. City of Janesville v. Milwaukee & M. R. Co., 464. City of Jefferson v. Edwards, 117. City of Jefferson v. McCarty, 461. City of Jeffersonville v. Louisville & J. Steam Ferry Co., 385. City of Jeffersonville v. Weems, 100. City of Joliet v. Adler, 293. City of Joliet v. Petty, 170. City of Joliet v. Verley, 389, 402. City of Jonesboro v. McKee, 460, 465, 466. City of Joplin v. Leekie, 330. City of Kalamazoo v. Francoise, 300. City of Kankakee v. Potter, 155. City of Kenosha v. Lamson, 269. City of Keokuk' V. Dressell, 189. City of Keokuk v. Scroggs, 326. City of Knoxville v. Africa, 346. City of Knoxville v. Bell, 388. City of Knoxville v. King, 63, 69, 140. City of Knoxville v. Knoxville Water Co., 157, 169, 312. City of Kokomo v. Mahan, 278, 342. City of Lafayette V. Poor, 183. City of Lafayette v. Allen, 381. City of Lafayette V. Cox, 126. City of Lafayette v. Fowler, 298. City of Lafayette v. Jenners, 17, 38, 51. City of Lafayette v. Larson, 390. City of Lafayette v. Male Orphan Asylum, 303. City of La Harpe v. Elp Tp. Gas, Light, Fuel & Power Co., 347. City of Lake Charles v. Police Jury of Calcasieu Parish, 457. City of Lake View v. Tate, 328. City of Lamar v. Weidman, 314. City of Lambertville v., Apple- gate, 311. City of Lancaster v. Arnold, 229. City of Lancaster v. Miller, 241, 287. City of Laporte v. Gamewell Fire Alarm Telegraph Co., 416, 417. City of Leavenworth v. Norton, 124, 128. City of Lebanon v. Gordon, 319. City of Lexington v. Thompson, 74. City of Lincoln v. Pirner, 391. City of Lincoln v. Smith, 388. City of Lincoln v. Staley, 398. City of Little Rock v. Board of Improvements, 154. City of Little Rock v. Little Rock, 165. City of Little Rock v. Merchants' Nat. Bank, 2B4. City of Livingston v. Woods, 229. City of Logansport v. Crockett, 162. City of Logansport v. Dick, 383. City of Logansport v. Seybold, 437. City of Louisiana v. Wood, 260, 539. City of Louisville v. Brewer's Adm'r, 391. City of Louisville v. Common- wealth, 90. City of Louisville v. Hyatt, 296. City of Louisville v. Johnson, 397. City of Louisville v. Keher, 394. City of Louisville v. Leatherman, 289. CASES CITEI> 607 [The figures reter to pages] City of Louisville v. McKegney, 161. City of Louisville v. President, etc., of University of Louisville, 91, 233. City of Louisville v. Shanahan, 408. City of Lowell v. Boston, 438. City of Lowell v. French, 306. City of Lowell v. Hadley, 305. City of Lowell v. Wheelock, 301. City of Ludlow v. Richie, 214. City of Lynchburg v. Wallace, 392. City of Lynn -v. Nahant, 110. City of McGregor v. Cook, 468. City of McKeesport v. McKees- port & R. Passenger R. Co., 311. City of Macon v. HufE, 368. City of Macon v. Shaw, 221. City of Madison v. Mayers, 844. City of Madison v. Smith, 222. City of Madisonville v. Price, 314. City of Mankato v. Barber As- phalt Pav. Co., 244. City of Mankato v. Fowler, 177, 331, 334. City of Mansfield v. Balliett, 406. City of Marquette v. Michigan Iron & Land Co., 449. City of Marshall v. Allen, 247, 251. City of Marshall v. Anderson, 348. City of Marshalltown v. Blum, 454. City of Marshalltown v. Forney, 273. City of Maysville v. Stanton, 65. City of Memphis v. Brown, 82, 223, 289, 556. City of Memphis v. Kimbrough, 5, 385. City of Memphis v. Memphis Wa- ter Co., 19, 115, 147. City of Memphis v. United States ex rel. Brown, 78, 267, 426. City of Memphis v. Winfield, 174. City of Memphis v. Woodward, 216, 558, 559. City of Milledgeville v. Cooley, 585. City of Milwaukee v. Milwaukee & B. R. Co., 96. City of Mobile v. Allaire, 318. City of Mobile v. Baldwin, 449. City of Mobile v. Bienville Water Supply Co., 365. City of Mobile v. Dargan, 124, 125, 299. City of Mobile v. Jones, 190. City of Mobile v. Moog, 18, 19. City of Mobile v. Squires, 230. City of Mobile v. Watson, 425. City of Mobile v. Yuille, 181. City of Monroe v. Hoffman, 205, 325, 326. City of Montezuma v. Minor, 146. City of Montezuma v. Wilson, 391. City of Morristown v. Shelton, 19, 121. City of Mt. Pleasant v. Breeze, 124, 172'. City of Murphysboro v. Baker, 391. City of Murphysboro v. O'Riley, 391. City of Muskegon v. Gow, 108. City of Napa v. Easterby, 168, 169. City of Nashville v. Althrop, 457. City of Nashville v. Brown, 408. City of Nashville v. Comar, 406. City of Nashville v. Llnck, 128, 129, 331. City of Nashville v. Ray, 253, 269, 277, 419, 430, 541. City of Nashville v. Smith, 446. City of Nashville v. Thompson, 219. City of Nashville v. Toney, 467. City of Nashville v. Towns, 555. City of Nevada to Use of Gilfillan V. Eddy, 133, 153, 281. City of Newark v. Verona, 446. City of New Haven, v. Fair Haven & W. C. R. Co., 483. 608 CASES CITED [The figures refer to pages] City of New Haven v. Fresenius, 229. City of New London v. Brainard, 125, 428, 485, 489. City of New Orleans v. Becker, 483. City of New Orleans v. Clark, 79, 82, 86, 87, 568. City of New Orleans v. Danneman, 327. City of New Orleans v. Guillotte's Heirs, 467. City of New Orleans v. Home Mut. Ins. Co., 468. City of New Orleans v. Hopkins, 92. City of New Orleans v. Hop Lee, 337. City of New Orleans v. Leverich, 349. City of New Orleans v. Miller, 320. City of New Orleans v. Morgan, 223. City of New Orleans v. Morris, 468. City of New Orleans v. New Or- leans City & L. R. Co., 356. City of New Orleans v. New Or- leans Waterworks Co., 107, 435. City of New Orleans v. Phillippi, 128. City of New Orleans v. Poutz, 458. City of New Orleans v. Stafford, 338. City of New Orleans v. United States, 349, 474. City of New Orleans v. Wardens of Church of St. Louis, 234. City of New Orleans v. Wire, 306. City of Newport v. Covington & C. St. R. Co., 446. City of rJewport v. Phillips, 254, 265, 266. City of Newport News v. Potter, 242, 259, 266. City of New York, In re, 303, 367, 455. City of New York v. Bailey, 315. City of New York v. Brifton, 312. City of New York v. Crawford, 467. City of New York v. Nichols, 178. City of New York v. Ordrenan, 329. City of New York v. Reesing, 335. City of New York v. Second Ave. R. Co., 317. City of New York v. Sheffield, 395. City of New York v. Tenth Nat. Bank, 80. City of New York v. Watts, 458. City of New York v. Williams, 130. City of Niles v. Muzzy, 198. City of Norfolk v. Flynn, 335. City of Northport v. Northport Townsite Co., 198. City of North Vernon v. Voegeer, 292. City of Norwich v. Story, 346. City of Oakland v. Carpentier, 18, 133, 159, 226. City of Olney v. Harvey, 118, 462. City of Omaha v. Croft, 386. City of Omaha v. Harmon, 187. City of Omaha v. Jensen, 408. City of Omaha v. Megeath, 223. City of Omaha v. Richards, 393. City of Omaha v. South Omaha, 57, 58. City of Omaha v. State, 306. City of Ord v. Nash, 360. City of Orlando v. Equitable Bldg. & Loan Ass'n, 458. City of Oshkosh v. Schwartz, 190. City of Ottawa v. Bodley, 335. City of Ottawa v. Carey, 250, 454, 547. City of Ottawa v. Spencer, 444. City of Ottumwa v. Chinn, 324. City of Ottumwa v. Schaub, 191. City of Ottumwa v. Zekind, 181. City of Owensboro v. Sparks, 312. City of Palestine v. Hassell, 391. City of Parkersburg v. Brown, 254, 440, 422. CASES CITED [The flgures refer to pages] 609 City of Passaic v. Paterson Bill Posting, Advertising & Sign Painting Co., 313, 324. City of Paterson v. Bamet, 153. City of Paterson v. Society for Es- tablishing Useful Manufactures, 22, 38, 41, 49, 91, 120, 303. City of Pekin v. McMahon, 470. City of Pekln v. Beynolds, 423, 430. City of Pensacola v. Sullivan, 459. City of Peoria v. Gugenheim, 180. City of Peoria v. Johnston, 358. City of Peoria v. Kidder, 806. City of Peoria v. Simpson, 398. City of Petersburg v. Applegarth's Adm'r, 385. City of Petersburg v. Petersburg Aqueduct Co., 311. City of Philadelphia v. Dlbeler, 272. City of Philadelphia v. Empire P. E. Co., 184. City of Philadelphia v. Field, 80, 83, 444. City of Philadelphia v. Flanigen, 435, 564. City of Philadelphia v. Fox, 19, 20, 67, 70, 83, 90, 141, 144, 493. City of Philadelphia v. Hays, 254. City of Philadelphia v. Marcer, 219. City of Philadelphia v. Pemberton, 244. City of Philadelphia v. Philadel- phia & E. E. Co., 302. City of Philadelphia v. Ridge Ave. Pass. E. Co., 355. City of Philadelphia v. Scott, 523. City of Philadelphia v. Tryon, 365. City of Pittsburg v. Cluley, 162. City of Pittsburgh v. Daly, 275. City of Pittsburg v. Epping-Car- penter Co., 490. City of Pittsburgh v. Grier, 138, 385. City of Pittsburg v. W. H. Keech ■ Co., 323. COOL.MUN.CORP. — 39 City Of Platteville v. Hooper, 467. City of Plattsburg v. Eiley, 104. City of Plattsburg v. Trimble, 334. City of Plattsmouth v. Murphy, 257. City of Port Huron v. McCall, 126, 127. City of Portland v. Schmidt, 337. City of Portsmouth v. Lee, 389. City of Poughkeepsie v. Wiltsie, 215. City of Providence v. Providence Electric Light Co., 241. City of Providence v. Union E. Co., 170. City of Pueblo v. Eobinson, 300. City of Quincy v. Bull, 354. City of Quincy v. jbheS, 342, 361. City of Quincy v. O'Brien, 108. City of Quincy v. Warfleld, 418, 423. City of Ealeigh v. Peace, 299, 300, 306. • City of Ealeigh v. Sorrell, 150. City of Reading v. Berks County, 446. City of Eeading v. Keppleman; 141. City of Eichmond v. Crenshaw, 562. City of Riehnlond v. Dudley, 325. City of Richmond v. Gibson, 445. City of Richmond v. Long's Adm'rs, 377, 381, 471. City of Richmond v. McGlrr, 269, 419. City of Richmond v. Mason, 392. City of Richmond v. Model Steam Laundry, 136. City of Eichmond v. Eichmond & D. E. Co., 79, 108, 304. City of Eichmond v. Smith, 357. City of Richmond v. .Southern Bell Telephone & Telegraph Co., 314. City of Roanoke v. Boiling, 325. City of Rochester v. Ooe, 446. 610 GASES CITED [The figures refer to pagesj City Of Eochestef v. Gleichauf, 461. City of Eochester v. Upman, 456. City of Roekford v. Hollenbeck, 393, 399. City of Rock Island v. Huesing, 485, 489. City of Rockville v. Mercliant, 166, 167. City of Rome v. Cabot, 276, 315. City of Rome v. McWilliams, 416. City of Rome v. WMtestown Waterworks. Co., 280. City of Rosedale v. Golding, 402. City of Rutherford v. Swink, 192. City of Sacramento v. California Stage Co., 449. City of Sacramento v. Dillman, 168. City of Sacramento v. Kirk, 536. City of Saginaw v. Swift Electric Light Co., 182, 330. City of St. Chai4es y. Meyer, 130. City of St. Joseph) ex rel. Han- nibal & St. J. R. Co. V. Saville, 449. City of St. Louis v. .Alexander, 542. City of St. Louis v. Allen, 38, 105. 112, 114. City of St. Louis t. Bentz, 193, 331. City of St. Liouis v. Davidson, 237, 287. City of St. Louis v. Fischer, 191. City of St. Louis v. Fitz, 174, 334. City of St. Louis v. Klausmeier, 178. City of St. Louis v. Meyrose Lamp Mfg. Co., 330. City of St. Louis v. Regina Flour Mill Co., 316, 323. City of St. Louis v. Roche, 191. City of St. Louis v. Russell, 18, 38, 154. City of St. Louis v. Schoenbusch, 130, 319, 331. City of St. Louis v. Shields, 62, 79, 426, 566. City of St. Louis v. Vert, 190. ' City of St. Louis v. Weber, 180, 184. City of St. Louis v. Weitzel, 335, 476. City of St Louis to TJse of Creamer v. Clemens, 429. City of St. Paul v. Briggs, 126. City of St. Paul v. Byrnes, 526. City of St. Paul v. Chicago, M. & St. P. R. Co., 356. City of St. Paul v. Colter, 21, 177. City of St. Paul v. Haugbro, 3-30. City of St. Paul v. Laidler, 318, 436. City of St. Paul v. Lytle, 335. City of Salem v. Eastern R. Co., 328. City of Salem v. Maynes, 326. City of Salem ex rel. Roney v. Young, 58, 174. City of San Antonio v. Lane, 545. City of San Antonio v. Lewis, 163. City of ^an Antonio v. Micklejohn, 154. City of San AntOnio v. Salvation Army, 174. City of San Antonio v. White, 379. City of San Francisco v. Canavan, 30, 37, 60, 70, 81, 82, 349, 370. City of Santa Barbara v. Sher- man, 189. City of Santa Rosa v. Coulter, 100. City of Savannah v. Charlton, 334, 336. City of Savannah v. CoUens, 885. City of Savannah v. Grayson, 199, 220. City of Savannah v. Hartridge, 277. City of Savannah v. Hussey, 131, 171. City of Scranton v. Straff, 180. City of Seattle v. Hinckley, 327. CASES CITED Cll [The figures refer to pages] City of Seattle v. Yesler, 34, 35, 306. City of Selma v. Mullen, 239. City of Shawneetown v. Mason, 294. City of Sherman v. Langham, 474. City of Sherman v. Smith, 474. City of Shreveport v. Drouin, 348. City of Shreveport v. Levy, 316, 331. City of Shreveport v. Robinson, 181, 316. City of Shreveport v. Eoos, 333. City of Somerset v. Smith, 151. City of Somerset v. Somerset Banking Co., 158. City of Somerville v. Dickerman, 266. City of Somerville v. Waltham, 446. City of South Bend v. Martin, 335. City of South Bend v. University of Notre Dame du Lac, 446. City of South Omaha v. Burke, 350. City of South Omaha v. Cunning- ham, 396. City of South Omaha v. Powell, 393. City of Spokane v. Macho, 175, 176. City of Spokane Falls v. Browne, 301. City of Springfield v. Edwards, 486. City of Springfield v. Mathus, 286. City of Springfield v. Sale, 365. City of Springfield v. Starke, 460. City of Sterling v. Gait, 282. City of Stillwater v. Lowry, 355. City of Streator v. Chrisman, 391. City of Syracuse v. Hubbard, 80, 82, 86. City of Talladega v. Fitzpatrick, 319. City of Tallahassee v. Fortune, 387. City of Tampa v. Kaunltz, 446. , City of Tampa v. Salomonson, 489. City of Terre Haute v. Lake, 153, 239, 285. City of Terre Haute v. Turner, 345. City of Texarkana v. Leach, 357. City of Toledo v. Cone, 384. City of Topeka v. Boutwell, 185. City of Trenton v. McQuade, 278. City of Troy v. Winters, 325. City of Tyler v. Adams, 257. City of Tyler v. L. L. Jester & Co., 418, 427. City of Unionville v. Martin, 133. City of Valparaiso v. Bozarth> 362. City of Valparaiso v. Gardner, 485. City of Valparaiso v. Valparaiso City Water Co., 258. City of Vandalia v. Huss, 396. City of Vicksburg v. Groome, 557. City of Vicksburg v. Vicksburg Waterworks Co., 276. City of Vincennes v. Citizens' Gaslight Co., 247. City of Wabasha v. Southworth, 399. City of Wahoo v. Dickinson, 99, 100. City of Walla Walla v. Walla Walla Water Co., 416. City of Wardner v. Pelkes, 42. City of Watertown v. Cady, 463. City of Waverly v. Reesor, 393. Cits' of Waycross v. Youmans, 207. City of Weatherford v. Lowery, 396. City of Wellington v. Wellington Tp., 92. City of Wellston v. Morgan, 238, 248. 612 CASES CITED [The figures refer to pages] City of Wheeling v. Blact, 209, 210. City of Wilkes-Barre v. Garebed, 320. City of Williamsport v. Common- wealth, 266, 269, 276, 419. City of Wilmington v. Bryan, 247, 251. City of Winohester v. Eedmond, 125, 251. City of Winona v. Botzet, 137. City of Winona v. Huff, 349, 469. City of Winona v. School Dist. No. 82, 65, 66, 110. City of Wyandotte v. Drennan, 213. City of Wyandotte v. Wood, 17. City of Wyandotte v. Zeitz, 234. City of Yonkers v. Yonkers E. Co., 181. City of York v. Chicago, B. & Q. E. Co., 456. City E. Co. V. Citizens' St. E. Co., 345, 355. City Water Supply Co. v. Ottum- wa, 415. Claflin V. Hopkinton, 427. Claiborne County v. Brooks, 84, 515, 519, 521, 541, 542, 543, 544, 546, 547. Clapp V. Cedar County, 543. Clapp V. Hartford, 301. Clapp V. Spokane, 483. Clark V. Davenport, 434, 562. Clark V. Des Moines, 235, 250, 414, 422, 423, 430, 559, 560. Clark V. Elizabeth, 171, 293. Clark V. Janesville, 40, 420. Clark V. Kansas City, 102. Clark V. Polk County, 423, 533, 543. Clark V. Sou<;h Bend, 129, 172, 325, 327. Clark 7. Stanley, 195. Clark V. Syracuse, 324. Clark V. Thompson, 495. Clark V. Washington, 239. Clarke v. Chicago, 288, 289. Clarke v. Lyon County, 514, 515, 540. Clarke v. Northampton, 422. Clarke v. Eochester, 19, 33. Clarke v. Eogers, 17, 18. Clarke v. School Dist., 419. Clason V. New Orleans, 449. Clay r. Nicholas County Court, 543, 547. Clay V. St. Albans, 366, 404. Clay County v. Chickasaw County, 556. Clayton v. Board of Chosen Free^ holders of Hudson County, 479. Clearwater v. Meredith, 48. Cleaveland v. Grand Trunk E. Co., 96. Cleaveland v. King, 397. Cleavelafid v. Stewart, 5, 11. Clemens v. Baltimore, 306. Cleveland v. Amy, 579. Cleveland v. Tripp, 300. Cleveland, C, C. & St. L. E. Co. V. Connersville, 182. Cleveland, P. & A. E. Co. v. Penn- sylvania, 450. Clifton Forge v. Alleghany Bank, 422. Cline V. Crescent City R. Co., 388. Cline V. Seattle, 158. • Cloonan v. Kingston, 215. Cloughessey v. Waterbury, 400. Cloutman v. Pike, 207. Coast Co. V. Borough of Spring Lake, 488. Coates V. Campbell, 440. Coates V. New York, 188, 321, 466. Cobb V. Kingman, 145. Cobb V. School Dist. No. 1, In Pom- fret, 580. Cobb County v. Adams, 560. Coburn v. Bossert, 278. Cochran v. Collins, 306. Cochran v. McCleary, 150, 151, 153, 200, 211, 213. Cochrane v. Frostburg, 331. Cochrane v. Maiden, 364. CASES CITED 613 [The figures reler to pages] Coe V. Columbia, P. & I. K. Co., 449. Coffin V. Board of Com'rs of Kear- ney County, 549, 550, 551. Coggeshall v. Des Moines, 414. Coit V. Grand Rapids, 256, 258, 446. Coker v. Atlanta, K. & N. R. Co., 357. Coker v. Birge, 490. Colburn v. Chattanooga Western R. Co., 515, 521, 534, 543. Cole V. Fire Engine Go. In East Greenwich, 14, 584. Cole V. La Grange, 440. Coleman v. Broad River Tp., 547. Coleman v. Elgin, 215. Coleman v. Hartford, 236. Coleman v. Sands, 217. Coler V. Cleburne, 545, 550. Coles V. Madison County, 17, 49, 79, 554. Coles County v. Allison, 44, 57. Coley V. Statesville, 379. Collector v. Hubbard, 538. CoUett V. New York, 393. Collins V. Hatch, 129, 172, 178, 330. Collins V. Holyoke, 155, 278. Collins V. Keokuk, 284. Collins V. Louisville, 339. Collins V. McDaniel, 228. Collins V. Miller, 450. Collins V. New Albany, 104. Collins V. Welch, 266. CoUopy V. Cloherty, 159. Coloma V. Eaves, 421, 546, 552. Colorado Pav. Co. v. Murphy, 517. Colton V. Rossi, 59. Columbia County Com'rs v. King, 548. Columbus Waterworks Co. v. Co- lumbus, 248. Colwell V. Waterbury, 353. Comanche County Com'rs v. Lew- is, 546. Combs V. Lakewood Tp., 335. Combs V. Letcher County, 542. Comfort V. Kosciusko, 331. Commissioners v. Murray, 214. Commissioners' Court v. ]>!loore, 522. Commissioners' Court of Lowndes County V. Hearne, 162. Commissioners of Brownville Tax- ing Dist. V. League, 477. Commissioners of Easton v. Cov- ey, 324, 327. Commissioners of Gibson County V. Cincinnati ' Steam-Heating Co., 519. Commissioners of King County v. Davies, 143. Commissioners of Roads and Rev- enue for Floyd County v. Hurd, 522. Commissioners of Scioto v. Gher- ky, 495, 570. Commissioners of Town of Ashe- ville V. Johnston, 293. Commissioners of Town of Ashe- ville V. Means, 131, 434, 435, 455. Commissioners of Town of Bath v. Boyd, 54, 469. Commissioners of Town of Wash- ington V. Frank, 130. Commissioners of Warren County V. Osburn, 520, Committee of Union Tp. v. Ba-' der, 91. Common Council of Indianapolis V. Croas, 343, 346. Common Council of Muskegon y. Gow, 108. ' Commonwealth v, Alger, 309. Commonwealth v. Allen, 222. Cotnmonwealth v. Angle, 150. Commonwealth v. Arrison, 478. Commonwealth v. Bacon, 214. Commonwealth v. Boston, 354, 491. Commonwealth v. Bredin, 375, 492. Commonwealth v. Brooks, 184. Commonwealth v. Cluley, 478. 614' CASES CITED [The figures refer to pages] Commonwealth v. Commissioners of Huntington County, 529. Commonwealth v. Commissioners of Philadelphia County, 521. ComBionwealth v. Connell, 479. Commonwealth v. Corcoran, 151. Commonwealth v. Crogan, 205, 221. Commonwealth v. Crownlnshleld, 328. Commonwealth v. Cullen, 436. Commonwealth .V. Cutter, 179, 186, 313, 321. Commonwealth v. Davis, 174, 331. Commonwealth v. De Camp, 263. Commonwealth v. Dow, 132. Commonwealth v. Emsley, 327. Commonwealth v. Fenton, 184. Commonwealth v. Gamble, 195. Commonwealth v. Gilligan, 64. Commonwealth v. Gingrich, 235, 427. Commonwealth v. Gloucester, 491. Commonwealth v. Grant, 199. Commonwealth v. Green, 14. Commonwealth v. Henry, 222. Commonwealth y. Howard, 154. Commonwealth v. Jimison, 459. Commonwealth v. Jones, 221. Commonwealth v. Lally, 218. .Commonwealth v. Lansford, 375. Commonwealth v. Louisville & N. E. Co., 447. Commonwealth v. Lowell Gaslight Co., 6. Commpnwealth v. McCafferty, 168. Commonwealth v. Macf erron, 108. Commonwealth v. Matthews, 184. Commonwealth v. Moir, 70. Commonwealth v. Mulhall, 183. Commonwealth v. Murray, 478. Commonwealth v. Newburyport, 375. Commonwealth v. Page, 335. Commonwealth v. Park, 475. Commonwealth v. Parks, 331. Conunonwealth v. Passmore, 352. •Commonwealth v. Philadelphia, 16, 90, 186. Commonwealth v. Pindar, 68. Commonwealth v. Pittsburgh, 155, 419, 420. Commonwealth v. Plaisted, 138, . 144, 198, 584. Commonwealth v. Proprietors of New Bedford Bridge, 492. Commonwealth v. Rice, 338. Commonwealth v. Roark, 68. Commonwealth v. Robertson, 184. Commonwealth v. Roxbury, 494, 496. Commonwealth v. Roy, 171. Commonwealth v. Stodder, 176, 183, 329. Commonwealth 7. SummervUle, 147. Commonwealth v. Tewksbury, 325. Commonwealth v. Trustees of Hopkinsville, 375, 491. Commonwealth v. Turner, 164. Commonwealth v. West Chester Borough, 477. Commonwealth v. Willis, 203. Commonwealth v. Worcester, 180. Commonwealth Real Estate Co. v. South Omaha, 43, 46. Comstoek v. Grand Rapids, 558. Comstock v. Waterford, 447. Condran v. New Orleans, 230. Conelly v. Nashville, 471. Conklin v. School Dlst. No. 37, 578. Conlin V. Seaman, 305. Conner v. Bent, 79. Connor v. Marshfield, 283. Conservators v. Ash, 53, 122. Consetvators of River Tone V. Ash, 584. Contas V. Bradford, 326. Continental Const. Co. v. Al- toona, 264. Conway v. Russell, 227. Conwell V. Emrie, 317. Cook V. Burlington, 486, 490. CASES CITED 615 [The figures refer to pages] Cook V. Harris, 348. Cook V. Sumner Spirming & Mfg. Co., 235. Coolidge V. Brookline, 572. Coombs V. MacDonald, 314. Coonley v. Albany, 189. Cooper V. Detroit, 344. Cooper V. People, 190. Cooper V. Scranton City, 403. Cooper v. Springer, 79. Coquard v. Oquawka, 269. Corbalis v. Newberry Tp., 402. Corcoran v. Peekskill, 399. Corey v. Ann Arbor, 391, 400. Corey v. Ft. Dodge, 353. Corliss, In -re, 195. Corning v. Saginaw, 378. Cornwall v. Todd, 450. Corporate Powers of City of Council Grove, In re, 41. Corporation of BlufCton v. Studa- . baker, 327. Corporation of City of Amite v. Clementz, 461. Corporation of City of Marshall V. Snediker, 468. Correas v. San Francisco, 317. Corrigan v. Gage, 180. Corry v. Baltimore, 449. Corry v. Columbia, 390. Co'Bter V. Albany, 358. Couglin V. McElroy, 217. Councils of Reading v. Common- wealth, 92, 476. County Com'rs of Duval County V. Jacksonville, 91. Courtney v. Louisville, 447. Coverdale v. Edwards, 354. Cowan's Case, 343. ^ Cowdrey v. Caneadea, 252, 533, 539. Cowert, Ex parte, 187. Cowie V. Seattle, 398. Cox V. Lancaster, 344. Cox V. Louisville, N. A. & C. R. Co., 342, 362. Coy V. Lyons City, 223, 462, 463, 469. Coyle V. Mclntlre, 91. Coyne v. Rennie, 207. Craig v. Burnett, 226, 457. Craig V. Philadelphia, 288. Crampton v- Zabriskie, 517. Crane v. Fond du Lac, 468. Cranston v. Augusta, 68. Crause v. Harris County, 529. Craw V. Tolono, 306. Crawford County v. Wilson, 430, 543. Creighton v. Board of Sup'rs of City and County of San Fran- cisco, 75, 76, 79, 82, 86, 432. Creighton v. Commonwealth, 210. Crittenden County Court v. Shanks, 432. Crockett v. Boston, 370. Cromwell v. Sac County, 546. Cronin v. Jersey City, 272. Crook \^. People, 141, 142, 145, 146. Crooke v. Board of Com'rs of Daviess County, 534, 542. Cross, Ex parte, 319. Cross V. Morristown, 128, 142, 174, 347. Cross V. School Directors, 581. Crouch V. McKinney, 135* Crowder v. Sullivan, 240, 417. Crowell V. Hopkinton, 439. Crowley v. Christensen, 333, 525. Crowther v. Yonkers, 395. Crum V. Bray, 313, 332. Crump V. Board of Sup'rs of Col- fax County, 539. Cuddon V. Eastwick, 15, 20, 494. Culbertson v. Fulton, 429. Culpeper County Sup'rs v. Gor- rell, 523, 524. Culver V. Streator, 198, 378. Cummings v. Hartford, 394. Cummings v. St. Louis, 92, 348, 490. Cummins v. Seymour, 141, 364, 403. CunlifC V. Albany, 403. Cunningham v. Seattle, 380. 616 CASES CITED- [The figures refer to pages] Curran y. Boston, 375, 379, 381. Curry v. District Tp. of Sioux City, 495. Curry v. Savannah, 462, 468. Curry v. Stewart, 218. Curtis V. Cass County, 539, 560. Curtis V. Fielder, 538. Curtis V. Leavitt, 253, 419, 541. Curtis' Adm'r v. Whipple, 438, 439. Cushing V. Frankfort, 565. Outcomp V. Utt, 166. Cutting V. Stone, 19. D Dabney v. Hudson, 152, 210. Daily v. Swope, 434, 564. Daley v. St. Paul, 70, 74, 95, 344. Dalrymple v. Whitingham, 430. Daly V. Georgia S. & F. R. Co., 354, 356. Daly V. Morgan, 105, 107, 453. Damon v. Granby, 155, 494. Dana v. San Francisco, 422. Danaher v. Brooklyn, 377. Dancer v. Mannington, 134. Dane v. Derby, 478. Danforth v. Paterson, 18, 134. Daniel *v. Memphis, 124, 141, 142, 147. Danielly v. Cabaniss, 545. Daniels v. Newbold, 213. Dargan v. Mobile, 316, 341, 377, 472. Darker v. Beck, 348. Darling v. Baltimore, 462. Darling v. Taylor, 415. Darlington v. Commonwealth, 162. Darlington v. New York, 69, 91, 92, 93, 139, 320, 368, 462, 468. Darrow v. People, 204. Darst V. Griffin, 79. Darst V. People, 188. Dartmouth College v. Woodward, 1, 7, 9, 11, 48, 94, 116, 145. Dauphin County v. Bridenhart, 539. Davenport v. Buffington, 517. Davenport v. Klelnschmidt, 241. Davenport v. Richmond City, 311, 327, 329. David V. Portland Water Com- mittee, 202, 367. Davidson v. New Orleans, 298. Davies v. Los Angeles, 279. Davies v. Saginaw, 284. Daviess County v. Dickinson, 534, 541, 545, 547, 549, 550. Davis V. Anita, 318. Davis V. Appleton, 359. Davis V. Bangor, 491. Davis V. Berger, 207. Davis V. Board of Sup'rs of On- tonagon County, 520. Davis V. Clinton, 360. Davis V. Crawfordsville, 292. Davis V. Kalamazoo Tp., 561. Davis V. Knoxville, 371, 378. Davis V. Lebanon, 380. Davis V. Linn County, 535, 537. Davis V. Lynchburg, 300. Davis V. Massachusetts, 174. Davis V. Montgomery, 381. Davis V. New York, 172, 222, 311, 425. Davis V. Patterson, 563. Davis V. Philadelphia, 196, 231. Davis V. Point Pleasant, 447. Davis V. Proprietors of Second Unlversalist Meeting-House, 269. Davis V. Read, 155, 457. Davis V. School Dist. No. 1 of Niles, 579. Davis V. Winslow, 352. Davock V. Moore, 81, 95, 432. Day V. Green, 154, 352. Day V. Milford, 362. Day V. Roberts, 453. Day V. Stetson, 3. Dayton v. Qulgley, 174. Dean v. Borchsenius, 458. Dean v. Campbell, 476. Dean v. Charlton, 242, 487. Dean v. Davis, 16, 52, 583. Dean v. Gleason, 151, 152, 211. Dean v. Saunders County, 555. CASES CITED C17 [The figures refer to pages] Deason v. Dixon, 109, 459. Debnam y. Chitty, 422. Debolt V. Trustees of Cincinnati Tp., 215, 556. Dechert v. Commonwealth, 477. Decie v. Brown, 185, 337. Decker v. Sergeant, 185. Deehan v. Johnson^ 476. Deemar v. Boyne, 479. Defiance Water Co. v. Defiance, 247, 248. De Gintlier v. New Jersey Home for Education and Care of Fee- ble-Minded Children, 327. De Hart v. Atlantic City, 17. Deichsel v. Maine, 154. Deitz V. Central, 23, 24, 29, 33, 35, 466. De Lacey v. Brooklyn, 209. Delafield v. Illinois, 21, 22, 237, 257. Delaney, Ex parte, 331. Delaware County v. Diebold Safe & Lock Co., 288. Delaware, L,. & W. R. Co. v. Buf- falo, 356. Delaware, L. & W. R. Co. v. East Oranse Tp., 184. Delger v. St. Paul, 393. Dell Rapids Mercantile Co. v. Dell Bapids, 360. De Loge v. New York Cent. & H. R. R. Co., 169. De Lucca v. North Little Rock, 290. Demarest v. New Barbadoes Tp., 249. Demarest v. New York, 38, 217. De Mattos v. New Whatcom, 111. Dempster v. Chicago, 297. Deneen v. Houghton Co. St. R. Co., 111. Dennison v. Kansas City, 280. Dennison r. St. Louis County, 531. Denver Circle R. Co. v. Nestor, 345. Denver & R. G. R. Co. v. Church, 561. Department of Health of City ofj New York v. Ebling Brewing Co., 330. Desanta, In re, 178. Deshong v. New York, .360. Des Moines County v. Harker, 21. Des' Moines Gas Co. v. Des Moines, 29, 63, 165. Desmond v. JefCerson, 455. . Detroit v. Detroit Citizens' St. B. Co., 247. Detroit Citizens' St. R. Co. v. Detroit, 354. Detroit Free Press Co. v. State Auditor, 196. Detroit, G. H. & IJ. B. Co. v. Grand Rapids, 302. De Varaigne v. Fox, 523. Devers v. Howard, 254. Devlin v. Dalton, 481. Devlin V. Philadelphia, 295. Devore's Appeal, 19, 102. De Voss V. Richmond, 268, 418, 421. Dewey v. Des Moines, 297. Dewey v. Toledo, A. A. & N. M. K. Co., 250. Dexter v. Tree, 343. Dey V. Jersey City, 154, 159, 201, 240, 287. Diamond v. Mankato, 244, 284,. 285. Diamond Match Co. v. New Hav- en, 364. Diamond Match Co. v. Ontonagon,. 448. Dickerson v. Butler, 559. Dickerson v. Le Roy, 353. Dickinson v. Poughkeepsie, 579. Dikes V. Miller, 22. Dillingham v. Snow, 55. Dingley v. Boston, 20. District of Columbia v. Boswell,. 393. District of Columbia v. Woodbury,. 387, 401. Division of Howard County, In le^ 510. 618 CASES CITED [The figures refer to pages] Dixon County v. Field, 415, 533, 546, 549, 550, 551. Dobbins v. Los Angeles, 327. Dodd V. Consolidated Traction Co., 355. Dodge V. Essex County Com'rs, 474. Dodge V. Granger, 380. Dodge V. Gridley, 140. Dodge v. Memphis, 421. Dodge V. Mission Tp., Sliawnee County, Kan., 438, 439, 440, 562. Dodson V. Mock, 340. Doe ex dem. Chandler v. Douglass, 18. doherty v. Braintree, 402. Dolan V. New York, 216, 558, 559. Dolese v. McDougall, 288. Domer v. District of Columbia, 398, 399, 400. Domestic Telephone Co. v. Ne- wark, 354. Donable's Adm'r v. Harrisonburg, 139. Donahoe v. Kansas City, 364, 366, 404. Donahoe v. Richards, 226. Donahue v. Keystone Gas Co., 359. Donovan v. AUert, 349. Donovan v. Vicksburg, 188, 332. Dooley v. Sullivan, 471. Doolittle V. Walpole, 575. Dorey v. Boston, 155, 160. Dorgan v. Boston, 298, 444. Dorman v. Lewiston, 279. Dorris v. Miller, 451. Dorsey County v. Whitehead, 432. Dorton v. Burks, 332. Doss V. Wiley, 579. Dougherty v. Hitchcock, 288. Dougherty County v. Kemp, 513, ■ 522. Douglass V. Commonwealth, 243. Douglass V. Harrisville, 306, 488. Douglass V. Montgomery, 347. Douglass V. State, 559. Douglass V. Virginia City, 467. Dousman v. Milwaukee, 111. Dowell v. Portland, 538, 539, 543. Dowie V. Chicago, W. & N. S. R. Co., 44. Downing v. Roberts, 565. Downs y. Commissioners, 390. Dowty V. Pittwood, 203. Doyle V. Newaxk, 459. Doyle V. Raleigh, 195-. Drainage Com'rs v. Lewis, 255. Drake v. Elizabeth, 197, 263. Drake v. Phillips, 299. Drake v. Seattle, 395. Draper v. Springport, 239. Dredla v. Baache, 557. Dressman v. . Farmers' & Traders' Nat. Bank, 305. Drew v. Rodgers, 205. Drew V. Sutton, 396. Dreyfus v. Lonergan, 160. Dries v. St. Joseph, 358, 359. Driftwood Val. Turnpike Co. v. Board of Com'rs of Bartholo- mew County, 533. Driggs V. Phillips, 358. Drummond v. Eau Claire, 287. Dubaeh v. Hanuibal & St. J. R. Co., 96. Dube V. Lewiston, 408. Dudley v. Kentucky High-School, 9. Dudley v. Trustees of Frankfort, 223. Duffy V. State, 480. Dugan V. Baltimore, 466. Dugan V. Farrier, 152. Duke V. Williamsburg County, 541. Duluth S. S. & A. R. Co. V. Doug- lass County, 516. Dunbar v. Alcalde Ayuntamlento of San Francisco, 317. Dunbar v. Augusta, 328, 525. Dunbar v. Board of Com'rs of Canyon County, 489. Duncan v. Charleston, 198, 203, 414, 415. Duncan v. Niles, 231. CASES CITED [The figures refer to pages] 619 Duneombe v. Ft. Dodge, 239, 540. Duncombe v. Prindle, 114. Dundy, v. Board of Com'rs of Ricbardson County, 41. Dunham v. New Britain, 140, 315, 322. Dunham v. Trustees of Eochester, 333, 336, 457. Durach, Appeal of, 264. Durant V. Jersey City,- 134. Durfee v. Old Colony & F. K. Co., 9. Durr V. Howard, 68. Dutton V. Aurora, 170. Duty V. State, 215. Duval County Com'rs v. Jackson- ville, 566, 567. Dwight V. City Council of Spring- field, 482. Dyar v. Farmington Village Corp., 273. Dyer v. Covington Tp., 430. Dyer v. Erwin, 534, 535. Dyer v. Newport, 276. ■Dyer v. Woods, 284. Dyker Meadow Land & Imp. Co. V. Cook, 304. Dykes v. Lockwood Mortgage Co., 450. E Earl V. Board of Improvement of Morrilton, 283. Easterly v. Incorporated Town of Irwin, 377. Eastern R. Co. v. Boston & M. R. Co., 524. Eastern & A. R. Co. v. Central R. Co., 85. Easthampton v. Hill, 573. East Hartford v. Hartford Bridge Co., .48, 94, 143. Eastman v. Clackamas County, 529. Eastman v. Meredith, 112, 120, 383, 494, 496, 500, 531, 572. Easton & A. R. Co. v. Central R. Co., 567. Bast, Saginaw M(g.- Co. v. East Saginaw, 426. East Tennessee Telephone Co. v. Russellville, 355. East Tennessee University v. Knoxville, 15, 19, 20, 67. Echols V. State, 222. Eckhardt v. Darby, 582. Eddy V. EUicottville, 379. Edgerton v. Goldsboro Water Co., 434. Edison Electric Light & Power Co. of St. Paul V. Blomquist, 351, 353. Edmonds v. Herbrandson, 71. Edmondson v. Board of Education of City of Memphis, 76. Edmunds v. Gookins, 105. Edward O. Janes Co. v. Gutten- berg, 247, 477. Edwards v. Bates County, 422. Edwards v. Berlin, 242. Edwards v. Kearzey, 267. -, Edwards v. Pocahontas, 379. Edwards v. United States ex rel. Thompson, 206, 207, 217, 218, 219, 223. Edwards v. Watertown, 135. Eels V. Bailie, 480. Egan V. Chicago, 164. Egan V. St. Paul, 196. Egbert v. Lake Shore & M. S. R. Co., 278. Egleston V. Charleston, 68. Eichenlaub v. St. Joseph, 325, 340. Eichman v. Buchheit, 328- Einseidler v. Whitman County, 521. Elam V. Mt. Sterling, 389. Elder v. Central City, 31, 32. Elizabethtown Water Co. v. Wade, 443. EUerman v. McMains, 115. EUinwood v. Reedsburg, 276. Elliot V. Minneapolis City, 240, 243. , , , , , Elliott V. Burke, 210. Elliott V. Detroit, 473. : i 620 CASES CITED [The figures refer to pagesl ISUiott V. Fair Haven & W. R. Co., 362. Elliott V. Kalkaska Sup'rs, 322. Elliott V. Kansas City, 81. Elliott V. Louisville, 336. Elliott V. PMladelpliia, 472. Ellis V. Cleburne, 256. EUis V. Greaves, 479. Ellis V. Marshall, 7. Ellis V. People, 448, 460. Ellis V. Steuben County, 556. Ellis V. Washoe County, 514, 515. Ellsworth V. Lord, 347. Elmendorf v. New York, 168. Elmore" v. Drainage Com'rs, 582. Elmore v. Overton, 226. Elting V. Hickman, 81, 438. Ely v., Rochester, 371. Embler v. Wallkill, 65. Emeric v. Gilman, 468. Emerson v. Washington County, 529, 538. Emery v. San Francisco Gas Co., 300, 446, 461. Emmert v. De Long, 247. Empire City Subway Co. v. Broad- way & S. A. R. Co., 354. Enders v. Friday, 135. Endriss v. Chippewa County, 555. Enfield V. Jordan, 550. English V. Chicot County, 547. Enos V. Springfield, 273, 274. Ensley v. Nashville, 151, 152. Epplng V. Columhus, 415, 417. Erie County v. Erie, 446. Ersklne v. Steele County, 543, 544, 549. Erving v. New York, 243. Eschenburg v. Board of Com'rs of Lake County, 82. Eslava v. Jones, 228. Essex Public Road Board v. Skin- kle, 79, 108. Estep V. Keokuk County, 533. Estes V. Owen, 278. Eureka City v. Wilson, 325, 326. Evans v. Trenton, 214. Evansville v. Dennett, 546. Everett v. Council BlufCs, 323. Everett v. Deal, 162, 223. Everett v. Independent School Dist. of Rock Rapids, 422. Everson v. Syracuse, 471. Everts v. District Tp. of Rose Grove, 580. Evison V. Chicago, St. P., M. & O. B. Co., 180. Ewbanks v. President, etc., of Town of Ashley, 188, 466. Ezell V. Giles County Justice, 513. Fair's Estate, In re, 449. Fairbanks, Morse & Co. v. North Bend, 241, 242. Fairchild v. Masonic Hall Ass'n, 3. Fairfield v. Pbople, 459. Fairgrieve v. Moberly, 395. Panning v. Gregoire, 239, 536, 540. Farmers' Loan & Trust Co. v. Galesburg, 266. Farmers' & Merchants' Nat. Bank of Valley City v. School Dist. No. 53, 578. Farnsworth v. Pawtucket, 237. Farquar v. Roseburg, 388. Farrar v. Fessenden, 458, 562, 564. Parrar v. St. Louis, 296. Farrell v. Bridgeport, 557. Farwell v. Seattle, 125. Path V. Koeppel, 225. Path V. Tower Grove & L. Ry., 355. Fatout V. Board of School Com'rs, 581. Faulk V. McCartney, 579. Faulkner v. Seattle, 415. Faulkner v. Sisson, 214. I'aust V. Huntington, 348. Fawcett v. Mt. Airy, 272, 276. Fehler v. Gosnell, 236, 289. Feldman v. Charleston, 440, 441. Fellows V. Walker, 223. Felts V. Memphis, 371, 570. Ferguson v. Cable, 279. • Ferguson v. CJjittenden County, 159. CASES CITED 621 [The figures refer to pages] Ferguson v. Landram, 440. Ferguson v. Selma, 322, 331. Ferguson v. Snohomish, 47. Femald v. Oilman, 262, 422. Fernandez v. New Orleans, 423. Ferrell v. Opelika, 118. Ferrenbach v. Turner, 357. Ferriss v. Williamson, 519. Fessler v. Union, 369. Field V. Commonwealth, 216, 220. Field V. Des Moines, 317. Field V. Malster, 221. Field T. Shawnee, 250. Fields V. Stokley, 317. Fifield V. Phoenix, 382. Finch V, Bangor, 388, 390. Finch V. Eiverside & A. B. Co., 263. Fuidley v. Hull, 277. Fine v. Stuart, 489. Finley v. Territory, 215, 223. Fire Department of City of New York T. Sturtevant, 327. Fire Department of New York v. Chapman, 327. Fire Extinguisher Mfg. Co. v. Perry, 264. First Division of St Paul & P. B. Co. V. St Paul, 304. First Municipality v. Cutting, 166, 338. First Municipality of New Orleans V. Blineau, 175. First Nat Bank v. Arthur, 431, 432. First Nat Bank v. Board of Sup'rs, 430. First Nat Bank v. Felknor, 580. First Nat Bank v. Gates, 423. First Nat Bank v. Sarlls, 175, 325, 326. First Nal;. Bank v. Tyson, 352, 359, 360, 362. First Nat. Bank y. Yankton Coun- ty, 24, 34. First Presbyterian Church of Ft. Wayne v. Ft. Wayne, 133, 299. Pish V. Branin, 91, 142. Fisher v. Boston, 380. Fisher v. New Bern, 376. Fisher v. Seventeenth School Dist in Attleborough, 255. Fisher v.Thirkell, 860. Fisk V. Kenosha, 421. Fitch V. Pinckard, 436, 466. Fitzgerald v. Concord, 390. Fitzgerald v. New Brunswick, 64. Fitzgerald v. Pawtucket St. By. Co., 157. Flagg V. Palmyra, 463. Flagg V. Parish of St Charles, 521. Flagg V. School Dlst No. 70 of Barnes County, 550. Fleckner v. Bank of United States, 239. Fleming v. Dyer, 474. Fleming v. Mershon, 562. Fletcher v. Lowell, 197. Fletcher v. Oshkosh, 287. Flewellin v. Proetzel, 287, 299, .301. Flick V. Harpham, 432. Flood V. Atlantic City, 166. . Fieri V. St. Louis, 404. Floria v. Galveston County, 529, 530. Florida Cent & P. R. Co. v. Ocala St. & S. E. Co., 353, 357. Flournoy v. Jeffersonville, 227. Floyd V. Commissioners of Town of Eatonton, 190. Floyd County v. Rome St. E. Co., 344. Flynn v. Canton Co. of Baltimore, 185. Flynn v. Little Falls Electric & Water Co., 45, 248. Fockler v. Kansas City, 350, Folley V. Passaic, 482. Folmar v. Curtis, 332. Folsom V. Ninety-Six, 576. Folsom V. Underbill, 350. Foote, Ex parte, 330. Foote V. Cincinnati, 50. Ford V. Clough, 266. 622 CASES CITED [The figures refer to pages] Ford V. Delta & P. Land Co., 303. Ford V. McGregor, 561. Ford V. New York, 517. Ford V. North Des Moines, 32, 50. Ford V. Thralkill, 325. Ford V. Williams, 225. Foreman v. Marianna, 31, 100. Forney v, Calhoun County, 348. Forsyth v. Atlanta, 377. Forsyth v. Dunnagan, 369. Forsyth v. Hammond, 100. Ft Smith V. Ayers, 317. Ft.' Smith V. Dodson, 188. Ft. Smith V. York, 388. Foss V. Chicago, 457. Foster V. Cape May, 198, 263. Foster v. Fowler, 462. Foster v. Lane, 495. Foster v. Lookout Water Co., 380. Foster-Cherry Commission Co. v. Caskey, 450. Fowle V. Alexandria, 377, 382, 500. Fox V. McDonald, 206. Fox V. Richmond, 259, 261. Foy V. Winston, 396. Francis v. Howard County, 416, 553. Francis v. Troy, 239. Frank, Ex parte, 176. Frankfort Bridge Co. v. Frank- fort, 259. Franklin v. Baird, 562. Franklin Bridge Co. v. Wood, 2, 19. Franklin County v. Layman, 516. Fraser v. James, 510. Frazee, In re, 131, 174, 189. Frazer v. Chicago, 322. Frederick r. Augusta, 130. Frederick y. Columbus, 380. Fredericks v. Hoffmeister, 482. Frederick Street, In re, 172. Freeland v. Hastings, 440. Freeman v. Huron, 415, 423. French v. Brunswick, 362. Fretwell V. Troy, 335. Frey v. Michie, 153. Frommer v. Richmond, 335. Frost V. Belmont, 83. Frost V. Chicago, 181. Fry V. Albemarle County, 522, 528. Fryer t. Norton, 218. Fuller V. Atlanta, 283. Fuller V. Gould, 561. Fuller r. Jackson, 391. Fuller V. Roberts County, 558. Fuller V. Trustees of iPlainfield Academic School, 3. Fulliam v. Muscatine, 397, 398. Fulton V. Andrea, 211. Fulton V. Lincoln, 239. Fulton St., Brooklyn, In re, 272. Furhman v. Huntsville, 190. Gabler v. Treasurer of City of Elizabeth, 468. Gage V. Chicago, 286. Gage V. Evans, 306. Gale V. Kalamazoo, 133, 134, 225, 426. Galena v. Amy, 426. Galena v. United States ex rel. Amy, 463. Gallia County Com'rs v. Holcomb, 528. Gallup V. Liberty County, 256. Galveston, H. & S. A. R. Co. v. Harris, 167. Galveston & W. R. Co. v. Galves- ton, 356. Galvin v. New York, 399. Gans V. Philadelphia, 305. Garden City v. Abbott, 171, 336. Gardner v. Benn, 108. Gardner v. Board of Dakota Coun- ty Com'rs, 517. Gardner v. Chicago, 284. Garey v. Galveston, 118, 459. Garfield County v. Leonard, 556. Garner v. State, 544. Garrett v. Aby, 147. Garrett v. Janes, 352, 363. Garrison v. Chicago, 259. Gartley v. People, 563. Garvie v. Hartford, 202, 215. CASES CITED 623 tTho ag«res reter to pages] Garvin v. Daussman, 295. Garza, Ex parte, 334. Gaskins v. Atlanta, 896. Gaslight & Coke Co. v New Al- bany, 247. Gass V. Corporation of Greene- ville, 314. Gassett v. Andover, 539. Gates v.. Hancock, 237, 285. Gatlin v. Tarboro, 453. Gauld V. Board of Sup'rs of City and County of San Francisco, 482. Gause v. Clarksville, 253, 541. Gaylord v. New Britain, 400. Gearhart v. Dixon, 564, Gentle v.. Board of School Inspec- tors, 580. George v, Wi^andotte Electric Light Co., 264. Georgetown v. Commonwealth, 492. Georgia v. Stanton, 21. Gerber w. Kansas City, 392. Gerberling v. Wunnenberg, 348. German-American Sav. Bank of Burlington v. Spokane, 431. German Ins. Co. v. Manning, 415. German Sav. Bank v. Franklin County, 547, 549, 551. Gianfortone v. New Orleans, 378. Gibbins v. Adamson, 445. Gibson v. Harrison, 331. Gibson County v. Rains, 521, 544. Gilbert v. Craddock, 479. Gilbert v. New Haven, 539. Gilbert v. Paducah, 213. Gilboy V. Detroit, 378. Gilchrist v. Schmidling, 188, 332. Gilchrist's Appeal, 19. Gilder v. Brenham, 350. Gilham v. Wells, 132, 175. Gilkey v. How, 58. Gillen v. Spring Lake, 280. Gillett V. Board of Sup'rs of Lo- gan County, 335. Gillett V. Lyon County Com'rs, 555. Gillrie v. Lockport, 400. Oilman v. Gilby Tp., 423, Oilman v. Laconia, 404, 499. Oilman y. Milwaukee, 349, 368. Gilman v. Sheboygan, 78, 84. Gilmore v. Holt, 332. Gilmore v. Lewis, 214, 556, Gilmore v. Utica, 155. Gilpin V. Ansonia, 65. Gilson V. Dayton, 551. Gilsonite Const. Co. v. Arkansas McAlester Coal Co., 279. Giovanni, The v. Philadelphia, 385. Giozza v. Tiernan, 337. Girard v. Philadelphia, 60, 93, 105, 107, 141, 144, 145, 483, 484. Gladwin v. Ames, 428. Glaessner v. Anheuser-Buscb Brewing Ass'n, 356. Glascock V. Lyons, 216. Glasgow V. Rowse, 440. Glasgow v,St. Louis, 172. Glavey v. U. S., 556. Gleason v. Barnett, 167. Glendinning's Estate, In re, 450. Glenn v. Wray, 422. Glennon v. Gates, 242. Glover v. Terre Haute, 104. Goddard v. Lincoln, 375. Goddard v. President, etc., of Jacksonville, 337. Goddard's Case, 185, 189. Godfrey v. Bennington Water Co., 458. Goldsmith V. Baker City, 431. Gooch V. Gregory, 469. Gooche V. Exeter, 74, 213. Goodale v. Fennell, 78, 84, 426. Goodall V. Milwaukee, 291. Goodhue v. Beloit, 66. Goodloe T. Cincinnati, 291. Goodnow V. Board of Com'rs of Ramsey County, 16, 541, 543, 544. Goodrich v. Detroit, 234. Goodrich v. Waterville, 197. Goodwillie v. Detroit, 280. 624 Cases citee* [The figures refer to pages] Goodwin V. Bast Hartford, 423. Goodwin Gas Stove & Meter Co.'s Estate, In re, 460. Goodyear Eubber Co. v. Eureka, 161. Gordon v. Baltimore, 460, Gordon v. Comes, 444. Gordon v. Denton County, 539. Gordon v. Preston, 9. Gordon v. Elchmond, 397. Gordon County Com'rs v. Harris, 215. Gorum v. Mills, 124, 146. GosseUnk v Campbell, 69, 188, 332. Goszler v. Georgetown, 312. Gottschalk v. Becher, 10&. Goud V. Portiand, 199, 200, 214, ■ 215. Gould V. Rochester, 140, 406. Governor v. Allen, 3, 570, 584. Governor v. Gridley, 583. Goyne v. Ashley County, 544. Grady v. Landram, 415. Graham v. Albert Lea, 897. Graham v. Carondelet, 162. Graham v. Greenville, 60. Graham v. Spokane, 415. Granby Mining & Smelting Co. v. Richards, 121. Grand Island Gas Co. v. West, 197, 268. . Granger v. Parsons, 565. Granger v. Pulaski County, 16, 502, 529. Grannis v. Blue Earth County Com'rs, 517. Grannis v. Board of Com'rs of Blue Earth County, 516, 562. Grant v. Alpena, 205. Grant v. Berrisford, 45. Grant v. Erie, 380. Grant v. Lindsay, 562. Grant Oounty v. Lake County, 533. Grant County Com'rs v. McKin- ley, 556. Grantham v. State, 79. Graves v. Bloomington, 321. Graves v. Shattuek, 352. Gray v. Board of Sup'rs of Tomp- kins County, 548. Gray v. Burr, 281. Gray v. Cicero, 274. Gray v. Griffin, 377, 379, Gray v. State, 480. Gray v. Wilmington, 181. Grayson v. Latham, 42S. Great Falls Ice Co. v. District of Columbia, 79. Greeley v. Passaic, 466. Greeley v. People, 372. Greeley County v. Milne, 557. Green, Ex parte, 188. Green v. Cape May, 127, 327, 541, 582. Green v. Fresno, 138. Green v. Hlotaling, 446. Green v. New York, 213. Green v. Savannah, 321. Green v. Ward, 277, 287, 306, 434, 458. Greenbanks v. Boutwell, 372. Greene v. Rienzi, 211. Greeneville & Paint Rock Narrow Gauge R. Co. v. Johnson, 18, 19, 121. Greenough v. Wakefield, 428. Greenwood v. Louisville, 380, 388. Greenwood v. State, 319. Greer v. Asheville, 205. Gregory v. Bridgeport, 155, 265, 266, 276. Gregory v. New York, 220. Grenada County Sup'rs v. Brog- den, 548. Grenada County Sup'rs v. Brown, 540. Gribben, 111 re, 183. Grider v. Tally, 228. Gridley v. Bloomington, 185, 360, 399. Grieb v. Syracuse, 195. Grier v. Homestead Borough, 293. Griffin v. Gloversville, 323, 326. CASES CITED 625 tThe figures refer to pages] Grlfflh V. Messenger, 150. Griggs V. Macon, 331, 332. Grim V. Weissenberg School Dist., 439. Grimes v. Keene, 138. Grimmell v. Des Moines, 301, 365. Grogan v. San Francisco, 16, 71, 80. Groner v. Portsmouth^ 127. Grossenbach v. Milwaukee, 400. Grube v. St. Paul, 380. Grumon v. Raymond, 226. Grunewald v. Cedar Bapids, 299, 434. Guild V. Chicago, 32, 142. Guilder v. Otsego, 83, 95. Guillotte V. New Orleans, 181. Gulf, O. & S. F. E. Co. V. Eddins, 346. GuUck V. New, 206, 219. GuUikson v. McDonald, 378, 379. Gulline v. Lowell, 393. Gundling v. Chicago, 311, 321. Gushee v. New York, 369. Gustafson v. Hamm, 356. Guthrie V. New Haven, 349. Guttery v. Glenn, 359, 369. Gutzweller v. People, 77. H Haas v. Chicago & N. W. R. Co., 328. Hafford v. New Bedford, 232, 471. Hagar v. Reclamation Dist. No. 108, 448. Hague V. Philadelphia, 250, 257, 536. Haight V. Love, 209, 221. Haisch v. Seattle, 288. Halbut V. Forrest City, 239. Hale v. Bischoff, 210. Hale V. Brown, 581. Hale V. Houghton, 526. Hale V. Kenosha, 298, 461. Halfway Elver School Dist. v. Bradley, 55, 577. Hall V. Austin, 408. COOL.MtJN.CORP. — 40 Hall v. Concord, 279. ffall V. De Armond, 43. Hall V. Lebanon, 345. Hall V. Moo.re, 305. HaU V. Taylor, 495. Ham V. New York, 471- Ham V. Sawyer, 435. Hambleton v. Dexter, 113. Hamilton v. Chicago, B. & Q. E. Co., 342. Hamilton v. McNeil, 19. Hamilton v. San Diego County, 577. Hamilton v. Shelbyville, 235, 237, 246. Hamilton County v. Garrett, 13, 496, 582. Hamilton Gaslight & Coke Co. v. Hamilton, 276. HamUn v. Kassafer, 152, 210, 211. Hammett v. Philadelphia, 296, 444. Hammond v. Haines, 148. Hammond v. Place, 436. Hanbury v. Woodward Lumber Co., 356. Hand v. Elizabeth, 300. Handley v. Palmer, 483. Hanger v. Des Moines, 251. Hang Kle, In re, 130. Haniford v. Kansas City, 388. Hankins v. People, 193, 318. Hanley v. Randolph County Court, 540. Hannibal & St. J. R. Co. v. Husen, 322. Hannibal & St. J. R. Co. v. Marion County, 16. Hanscom v. Burmood, 188. Hanson v. Eastman, 370. Hanson v, Vernon, 16, 440. Harbeck v. Toledo, 524. Harcourt v. Common Council of Asbury Park, 134. Hardee v. Brown, 175. Hardenbrook v. Ligonier, 188. Hardy v. Gainesville, 263. Harkreader v. State, 204. 626 CASES CITED [The figures refer to pagesl Harman v. St. Louis, 377, 382. Harmon v. Chicago, 309, 323. Harney v. Indianapolis, C. & D. E. Oo., 489. Harrington v. St. Paul & S. C. R. Co., 362. Harris v. Martindale, 47. Harris v. Millege, 43. Harris v. People, 151. Harris v. School Dist. No. 10 in Canaan, 13, 495, 496, 502, 569, 578. Harris Franklin & Co. v. Lay- port, 460. Harrison v. Baltimore, 315j 322, 323. Harrison y. Brooks, 324. Harrison v. Chicago, 288. Harrison v. Elizabeth, 262. Harrison v; Palo Alto County, 532. Harrison v. Vicksburg, 437, 444. Harshman v. Bates County, 547, 548, 576. Hart V. Albany, 323, 330. Hart V. Bridgeport, 378. Hart V. Henderson, 458. Hart V. New Orleans, 462. Hart V. Omaha, 275. Harter v. San Jose, 368. Hartford Bridge Co. v. East Hartford, 93, 94, 106, 110. Hartford County Corners v. Wise, 401. Hartman v. Wilmington, 482. Hartnall v. Ryde Com'rs, 585. Hartnet v. New York, 390. Harvard College v. Board of Al- dermen of City of Boston, 304, 446. Harvey v. Dewoody, 226, 322. Harvey v. Tama County, 529. Hasbrouck v. Milwaukee, 86, 414, 536, 568. Haskell, Ex parte, 183. Haskell V. Dutton, 211. Haskell v. New Bedford, 406. Haswell v. New York, 195. Hatch V. Consumers' Co., 108. Hatch v. Mann, 556. Hathaway v. New Baltimore, 138. Haubner v. Milwaukee, 292. Hawes v. Chicago, 180, 182. Hawk V. Marion County, 515. Hawkins v. Board of Sup'rs of Carroll County, 543. Hawkins v. Jonesboro, 60, 82, 211. Hawkins v. Sanders, 362. Hawkins v. Trousdale County Jus- tices, 522. Hawley v. Atlantic, 396. Hawthorne v. East Portland, 272, • 301. Hawver v. Seldenridge, 211. Hayes, Ex parte, 333, 337. Hayes v. Douglas County, 443. Hayes v. Michigan C. R. Co., .329. Hayes v. Oshkosh, 231, 380, 471. Hayes v. Porter, 227. Hayes v. West Bay City, 395. Haynes v. Cape May, 177, 335. Hayter v. Benner, 207. Hayward v. Davidson, 511. Haywood v. Wheeler, 207. Hazen v. Lerche, 578. Hazen v. Strong, 315. Hazzard v. Heacock, 306. Head v. Curators of State Uni- versity, 14. Head v. Providence Ins. Co., 83, 239, 535. Healey v. Kelly, 345. Heard v. Com'rs of Charities of City of New York, 202. Heath v. Manson, 392. Hecht V. Coale, 151. Heck V. McEwen, 18. Hedderich v. State, 337. Hedges v. Dixon County, 550. Heed v. Commissioners of Cowley County, 549, 553. HefCerlln v. Chambers, 542. HefCran v. Hutchins, 223. Heidler, In re, 103. Heilbron, Ex parte, 321. Heine v. Levee. Com'rs, 115. CASES CITED [The figures refer to pages] 627 Heirieck v. Grosse, 349, 360. Heins v. Lincoln, 167, 417. Helple V. East Portland, 342, 343. Heiskell v. Baltimore, 158, 160. ' Heland t. Lowell, 15, 21, 63, 69, 165. Held T. Bagwell, 228. Helena ConsoL Water Co. v. Steele, 81, 94. Hellen v. Noe, 322, 330, 331, 332. Heller v. Atchison, T. & S. F. E. Co., 95. Heller v. Board of Com'rs of Shawnee County, 529. Heller v. Sedalia, 380. Heller v. Stremmel, 15, 20, 202, 493. Helm, Ex parte, 81. Heman v. Handlan, 274. Heman v. Schulte, 136. Heman Const. Co. v. Loevy, 306. Heman Const. Co. v McManus, 300. Hemple v. Hastings, 448. Henderson v. Baltimore, 435. ! Henderson v. Covington, 126. Henderson v. London & Lanca- shire Ins. Co., 199. Henderson v. Minneapolis, 359, 364. Henderson Bridge Co. v. Hender- son, 434, 445. Henderson County v. Dixon, 556. Hendricks v. State, 195. Henkel v. Detroit, 342, 343. Henkle v. Bussey, 481. Hennessy v. St. Paul, 327. Henry v. Cohen, 521. Hentig v. Gilmore, 273. Hequembourg v. Dunkirk, 414. Herman v. Oconto, 168, 169, 414. Herrlck v. Kandolph, 437. Hertzler v. Cass County, 460. Hesing v. Scott, 358, 490. Heslep V. Sacramento, 215, 556. Hesselbach v. St. Louis, 396. Hewes v. Glos, 274. Hewes v. Eeis, 285. 1 Hewitt y. Board of Education of Normal School Dist, 269, 277. Heywood v. Buffalo, 306. Hibbard v. Barker, 135. ' Hibbard v. Clark, 188. Hibbard, Spencer, Bartlett & Co. V. Chicago, 352, 353. Hickox V. Cleveland, 377. Hicks V. Long Branch Commis- sioner, 159. Hiestand v. New Orleans, 460. Higgins V. Ausmuss, 306. Higgins V. Chicago, 474. Higgins V. San Diego Water Co., 261. Higginson v. Nahant, 367. Higginson v. Turner, 66. Highbarger v. Milford, 344, 357. Highland County Com'rs v. Ehoades, 514, 515. Hight V. Board of Com'rs of Mon- roe County, 530. Hightower v. Thornton, 3. Highway Com'rs of Nlles Tp. v. Martin, 530. Higley v. Bunco, 168. Hildreth v. Lowell, 293, 365. Hildreth's Heirs v. Mclntire's Devisee, 152. Hill V. Abbeville, 332, 334. Hill v. Anderson, 112, 113, 203. Hill V. Board of Aldermen of Charlotte, 401. Hill V. Boston, 15, 378, 381, 388, 491, 499. Hill V. Forsythe County Com'rs, 565. Hill V. Indianapolis, 257. Hill V. Memphis, 276, 277, 531. Hill V. New York, 382. Hill V. Swinney, 579. Hill V. Warrell, 299, 365. Hill V. Washington Territory, 205. Hilliard v. Bunker, 562. Hinckley v. Somerset, 396. Hlne V. Keokuk & D. M. E. Co., 362. Hine v. New Haven, 325, 326, 523. 628 CASES CITED [The figures refer to pages] Hines v. Leavenworth, 296. Hines v. liOckport, 585. Hirt V. Erie, 417. 'Hirth v. Indianapolis,, 295. Hiss V. Baltimore & H. Pass. R. Co., 362. Hitchcocli V. Galveston, 155, 253, 255, 258, 260, 299. Hitchcock V. St. Louis, 438, 454. Hoadley v. Essex County Com'rs, 2. Hoag V. Ward, 305. Hobart v. Butte County Sup'rs, 534, 542. Hobart v. Detroit, 242. Hobart v. Milwaukee City R. Co., 362. Hobbs V. Yonkers, 556. Hodges V. Buffalo, 237, 256, 428. Hodges V. Nashville, 317. Hodges V. Runyan, 225. Hodges V. Western Union Tele- graph Co., 336. Hodgman v. Chicago & St P. R. Co., 486, 489. Hoffman v. Jersey City, 178, 339. Hoffman v. Quincy, 76. Hogan V. Collins, 221. Hoggatt V. Bigley, 226. Hohmann v. Chicago, 358. Hoke V. Henderson, 207, 217. Holdane v. Cold Spring, 349. Holden V. Alton, 223, 264^ Holderness v. Baker, 197. Holdom v.. Chicago, 284. Holladay v. Frisbie, 462. Holland v. Baltimore, 490, 562. Holland v. State, 155. Hollenbeek v. Winnebago Coun ty, 499, 522. Holliday v. Hilderbrandt, 577. HoUiday v. People, 79. Hollingsworth v. Detroit, 544. Hollingsworth v. Virginia, 33. HoUister v. Rochester, 104. Holman, Ex parte, 463. Holmes v. Hyde Park, 297. Holmes & Bull Furniture Co. v. Hedges, 577. Holmquist, Ex parte, 173. Holt County v. Scott, 207. Holten V. Board of Com'rs of Lake County, 516. Home Ins. Co. v. Augusta, 79. Home Ins. Co. v. Board of As- sessors, 451. Home Savings & Trust Co. v. Dis- trict Court of Polk County, 481. Honaker v. Board of Education of Pocatalico Dist, 581. Honey Creek School Tp. v. Barnes, 581. Hong Wah, In re, 323, 324. Hoole V. Attorney General, 348. Hooper v. Ely, 517. Hooper v. Emery, 440, 572, 575. Hoover v. Reap, 477. Hope V. Alton, 169. Hope V. Deaderick, 18, 22, 30, 33, 34, 37, 434, 444. Hope Mut Life Ins. Co, v. Weed, 503. Hopewell v. State, 198. Hopkins V. Clayton County, 514, 515. Hopkins V, Swansea, 21. Hopper V. Stack, 314. Horney v. Sloan, 69, 332. Horton v. Nashville, 276, 357, 382, 475. Horton v. Newport, 74. Houghton, Appeal of, 284. Houlden v. Smith, 226. House V. Board of Com'rs of Mont- gomery County, 499. House Bill No. 165, In re, 448. Houston V. Board of Com'rs of Clay County, 224, 231. Hover v. Barkhoof, 226, 585. Hovey v. Board of Com'rs of Wy- andotte County, 538. Hovey v. Mayo, 306. Howard v. Shoemaker, 219. Howard v. Worcester, 38L CASES CITED 029 [The figures refer to pages] Howard-Harrison Iron Co., Ex parte, 480. Howard's Case, 113. Howe V. New Orleans, 90. Howell V. Buffalo, 435. Howeth V. Jersey City, 162. Howland v. Maynard, 384. Howsmon v. Trenton Water Co., 401. Hoyt V. East Saginaw, 282, 285. Hubbard v. Sandusky, 243. Hubbell Y. Custer City, 423, 424. Hudmon v. Slaughter, 222. Hudson V. Marietta, 237, 285. Hudson Electric Light Co. v. Hud- son, 265. Hudson River Tel. Co. v. Water- vllet Turnpike & R. Co., 354. Huesing v. Rock Island, 321, 489. Huey V. Jones, 205. Huff V. Jacksonville, 305. Huff V. Macon, 369. Huff V. Pruitt, 43. Huffman v. Board *of Com'rs of Greenwich County, 557. Huffman v. Board of Com'rs oi Greenwood County, 215. • Hughes V. Fond du Lac, 395. Hughes V. Kline, 306. Hughes V. Momence, 282. Hughes V. Monroe County, 531. Hughes V. Parker, 281. Huling V. Topeka, 100. Hull V. Independent School Dist. of Aplington, 580. Humes v. Knoxville, 291. Humphreys v. Armstrong County, 403. Humphreys v. McKissock, 8. Hungerford v. Hartford, 363, 365. Hunsaker v. Borden, 504, 528. Hunt V. BoonvUle, 155, 384, 409. Hunt V. Boston, 384. Hunt V. Fawcett, 534. Hunt V. Salem, 394. Hunter, In re, 350. Hunter v. Board of Sup'rs of Page County, 450. Punter v. Chandler, 559. Hunter v. Mobley, 474. Huntington v. Calais, 389. Huntington v. Nevada, 72. Hurford v. Omaha, 490. Hurla V. Kansas City, 101, 102, 103. Hurley Water Co. v. Vaughn, 247. Hurst V. Warner, 315, 322, 525. Hurt V. Hamilton, 110. Hutchings v. Sullivan, 398. Hutchins v. School Dist. No. 1, Colfax Tp., 579. Hutchinson v. Belmar, 159. Hutchinson v. Olympia, 388. Hutchinson v. Pratt, 163. Huthsing v. Bousquet, 231. Hutton V. Camden, 315. Hyatt V. Rondout, 585. Hyde v. Franklin County, 544. Hydes v. Joyes, 155. Her V. Ross, 314, 322, 327. Illinois Cent. R. Co. v. Decatur, 299, 303. Illinois Cent. R. Co. v. Galena, 345. Illinois Cent R. Co. v. Kankakee, 302. Illinois State Board of Health v. People, 475. Illinois Trust & Savings Bank v. Arkansas City, 90, 92, 164, 247, 251, 258, 259, 425, 426. Imes V. Chicago, B. & Q. R. Co., 187. Imlay v. Union Branch R. Co., 362. Imler v. Springfield, 405. Incorporated Town of Avoca v. Heller, 178. Incorporation of Haines Mission, In re, 48. Incorporation of Village of North Milwaukee, In re, 18, 31, 34. Independent Dist. of Flint River V. Kelley, 581. G30 GASES CITED tThe figures refer to pages] Indiana Imp. Co. v. Wagner, 47. Indiana Road-Macli. Co. v. Sul- pliTir Springs, 262. Inge Vv Board of Public Works of Mobile, 241, 243, 244. Ingerman v. State, 474. ■ Ingersell v. Newton, 315. Inhabitants of Adams v. Farns- worth, 539. Inhabitants of Bernard Tp. v. Morrison, 552. Inhabitants of Bloomfield Tp. v. Glen Ridge, 110. Inhabitants of Congressional Tp. No. 11 V. Weir, 238. Inhabitants of Essex v. Low, 65. Inhabitants of First Parish in Brunswick v. Dunning, 3. Inhabitants of First Parish in Sudbury v. Stearns, 470. Inhabitants of Fourth School Dist. in Eumford v. Wood, 53, 54, 495, 504, 569, 570, 578. ' Inhabitants of Frankfort v. Wih- terport, 110. Inhabitants of Gorham v. Spring- field, 17, 37, 49, 105. Inhabitants of Hancock v. Haz- zard, 229. Inhabitants of North Yarmouth v. SkillLngs, 48, 105, 111, 436. Inhabitants of Norton v. Mans- field, 495. Inhabitants of Norwich y. Hamp- shire County Com'rs, 96. Inhabitants of Orvil Tp. v. Wood- clifC, 110. Inhabitants of Springfield v. Con- necticut River R. Co., 362. Inhabitants of Stockbridge Y. West Stockbridge, 55, 56. Inhabitants of Town of Freder- iektown v. Fox, 61. Inhabitants of Town of Griswold V. North Stonington, 266. Inhabitants of Town of Mont- vlUe T. Haughton, 467. Inhabitants of Towns of Windsbr & Suffield V. Field, 306. Inhabitants of Trescott v. lloab, 228. Inhabitants of Village of HoUs- tonia V. Grubbs, 305. Inhabitants of Watertown v. Mayo, 322, 334, 523. Inhabitants of Wayland r. Mid- dlesex County Com'rs, 523. ■■ Inhabitants of Winthrop v. New England Chocolate Co., 327. Inman v. Tripp, 406. International Bank of St. Louis V. Franklin County, 423, 543. International Trading Stamp Co. V. Memphis, 488. Interstate Transp. Co. v. New Or- leans, 227. Interstate, Vitrified Brick & Pav- ing Co. V. Philadelphia, 244. Irvine v. Chattanooga, 471. Irvine v. Wood, 363. Irwin V. Great Southern Tel. Co., 354. Irwin V. Mattox, 331. Israel v. Jewett, 294. Ives V. Hulet, 224. Ivins V. Trenton, 363. J Jackson v. Greenville, 389. Jackson v. Hartwell, 518. Jackson v. People, 480, 481. Jackson v. Pool, 399. Jackson County v. Eendleman, 521. Jackson Electric Ry., Light &: Power Co. v. Adams, 239, 257. Jacobs V. Board of Sup'rs of City & County of San Francisco, 150, 200. Jahn, In re, 178. Jain V. Bossen, 203. James v. Conecuh County, 529. James v. Darlington, 358. James v. Seattle, 428. CASES CITED 631 [The figures refer to pages] Jameson v. People, 18, 37, 54, 55, 61, 62. Jamison v. Independent School Dist. of Rock Rapids, Lyon County, Iowa, 578. Jansen v. Atchison, 390. Jansen v. Ostrander, 3. Jasper County v. Ballou, 549. Jeans v. Morrison, 382. JeflEerson City v. Oourtmire, 320. Jefferson County Com'rs v. Peo- ple, 453, 512. Jefferson School Tp. v. Litton, 581. Jenkins v. Cheyenne, lOO* Jenkins v. Scranton, 199. Jenkins v. Stetler, 286. Jenney v. Des Moines, 283. Jennings v. Le Breton, 300. Jennings Banking & Trust Co. v. Jefferson, 421. Jensen, In re, 441. Jensen v. Board of Sup'rs of Polk County, 83, '85, 453, 567. Jerome v. Commissioners of Rio Grande County, 544. Jersey City v. Erwin, 216, 557. Jersey City v. Harrison, 240, 245. Jersey City v. Howeth, 300. Jersey City v. Kiernan, 405. JeweU V. Gilbert, 152. Jewell Belting Co. v. Bertha, 134, 155, 236. Jewett V. New Haven, 380. Jex V. New York, 280. John Anisfield Co. v. Edward B. Grossman & Co., 343, 360, 363. John Hancock Mut. Life Ins. Co. V. Huron, 415. Johnson v. Bessemer, 186. Johnson v. De Bary-Baya Mer- chants' Line, 449. Johnson v. Forest City, 105. Johnson v. Indianapolis, 135, 136. Johnson v. Mann, 206, 209, 210. Johnson v. Oregon City Council, 450. Johnson t. Philadelphia, 317. Johnson v. San Diego, 110. Johnson v. Sanitary Dist. of Chi- cago, 243. Johnson v. School Corp.' of Cedar, 580. Johnson v. Simonton, 130, 140. Johnson v. Utica Water Works- Co., 524. Johnson v. Whltefleld, 395. Johnson v. Wilson, 207. Johnston v. Charleston, 399. Johnston v. District of Columbia, 382, 403. Johnston v. Macon, 155, 457. Johnston v. Sacramento County, 561. Johnstone v. Scott, 348. Jolly V. Railroad Co., 198. Jonas V. Cincinnati, 455. Jones, In re, 188. Jones V. Albany, 429. Jones V. Board, 585. Jones V. Boston, 363, 389. Jones V. Clinton, 390. Jones V. Commissioners of Lucas County, 555, 556. Jones V. Duncan, 332. Jones V. Easton, 216. Jones V. Fonda, 477. Jones V. Greensboro, 391. Jones V. Holzapfel, 275. Jones V. Jefferson, 217, 223. Jones V. Keith, 401. Jones V. Lind, 287. Jones V. Loving, 171. Jones V. Memphis, 105. Jones V. Mills, 204. Jones V. New Haven, 16, 89, 90. Jones V. North Wilkesboro, 135. Jones v. Pensacola, 112, 145, Jones v. Richmond, 137, 266. Jones V. School Dist. No. 3 of Iosco, 581. Jones V. South Omaha, 280. Jones Co. v. Guttenberg, 247, 477. Jones' Estate, -In re, 445. Jordan v. Benwood, 364, 405. J[ordan v. Hanson, 225, 244. 632 CASES CITED {The figures refer to pages] Jordan v. Hannibal, 402. Jordan v. Osceola Co., 516. Joslyn V. Detroit, 395. Joyce V. Woods, 457. Judd V. State, 46, 104. , Judge V. Meriden, 404. Judges' Salary Oases, 556, 557. , Judy V. Lashley, 313, 331. Julia Bldg. Ass'n v. Bell Tel. Co., 354, 355. Julienne v, Jackson, 341. Justices of Clarke County Court V. Paris, 463. Jutte & Foley Co. t. Altoona, 415. K Kahn v. Eisler, 328. Kahn v. Supervisors of San Fran- cisco, 285. Kahn V. Sutro, 47, 73. Kakeldy v. Columbia & P. S. R. Co., 347. Kane v. Troy, 395. Kankakee County v. iEtna life Ins. Co., 513. Kansas City v. Baird, 444. Kansas City v. Bermlngham, 387. Kansas City v. Flanagan, 190. Kansas City v. Garnier, 185. Kansas City v. Hallett, 319. Kansas City v. liemen, 376, 377. Kansas City v. McDonald, 181, 328. Kansas City v. Orr, 390, 394. Kansas City v. Stegmiller, 105. Kansas City v. Trotter, 284. Kansas City Exposition Driving Park V. Kansas City, 303. Kansas Town & Land Co. v. Ken- sington, 58. Karst V. St Paul, S. & T. F. R. Co., 278. Katzenberger v. Aberdeen, 422, 549. Kaufman v. Stein, 325, 326. Kayser v. Trustees of Bremen, 31, 32. Kean v. Elizabeth, 345. Keane v. New York, 260. Keating v. Stack, 223. Keeler v. Milledge, 190* 467. Keeler v. New Bern, 210. i Keeler v. Westgate, 434. Keeling, Ex parte, 60, 61. Keely v. Atlanta, 135. Keen v. Coleman, 256. Keen v. Featherston, 209, 217. Keeney v. Jersey City, 416. Keith V. Covington, 158. Keller v. Corpus Christi, 317. Keller v. Hyde, 529. Keller v. Scranton, 414. Kelley v. Brooklyn, 238. Kelley v. Milan, 84, 235, 547, 549'. Kellogg V. Janesville, 399. Kellow V. Scranton, 397. Kelly 7. Baltimore, 486. Kelly V. Meeks, 101, 102. Kelly V. Minneapolis, 85, 416, 426. Kelly V. Multnomah County, 521, Kelly V. Pittsburgh, 19, 447. Kemp V. Monett, 171. Kempster v. Milwaukee, 206, 210, 216, 559. Kendall v. Frey, 427. Kendall v. Raybould, 216. Kennedy v. Cumberland, 350. Kennedy v. Montgomery County,. 562. Kennedy v. Phelps, 321, 322, 331. Kennedy v. Sowden, 69, 332. Kennedy v. Washington, 223. Kennelly v. Jersey City, 362. Kenosha v. Lamson, 269. Kentucky v. Dennison, 472. Kenyon v. Spokane, 423. Kepner V. Commonwealth, 167. Kerr V. Bellefontaine, 230, 237. Kerr v. Trego, 153. ICerrigan v. West Hoboken Tp.,. 346. Ketchum v. Buffalo, 69, 131, 486. Kettelle v. Warwick & Coventry Water Co., 458. Kettering v. Jacksonville, 187. Kies V. Erie, 232, 378. CASES CITED 633 [The figures refer to pages] Kimball v. Boston, 198. Kimball v. Kosendale, 17. Kimberlin v. Commission to Five Civilized Tribes, 472. Kimble v. Peoria, 169, 286. Kincaid v. Hardin Co., 499. King V. Butler, 224. King V. Davenport, 130, 324, 325, 340, 523, 525. King V. Kansas City, 403. King y. Mahaska County, 515, 533. King V. Oshkosh, 395*. King V. Portland, 300. King V. Sullivan County, 520. King V. Superior, 422. Kingman v. Brockton, 438. Kingsley v. Chicago, 131. Kinnare v. Chicago, 231. Kinnear Mfg. Co. v. Beatty, 349. Kinney v. Tekemah, 398. Kinsel, In re, 191. Kinsley v. Chicago, 131, 338. Kip V. Buffalo, 201. Kip V. Paterson, 456. Kipley v. Luthardt, 208. Kirkbride v. Lafayette County, 543. Kirkendall v. Omaha, 293. Kirkham v. Russell, 132, 179. Kirker v. Cincinnati, 151, 152, 211. Kirkpatrick v. Brownfleld, 205. Kirkpatriek v. McKee, 31. Kirkpatrick v. State, 31. Kirtland v. Hotchkiss, 450. Kitson V. Ann Arbor, 456. Kittannlng Electric Light, Heat & Power Co. v. Kittannlng Bor- ough, 311. Klein v. Board of Sup'rs of War- ren County, 522. Klein v. New Orleans, 462, 469. Kleopfert v. Minneapolis, 375. Klinger v. Bickel, 325, 326. Knapp V. Hoboken, 541. Knapp, Stout & Co. Company v. St. Louis, 223. Kneedler v. Norristown, 180. Knight V. Philadelphia, 231. Knight V. West Union, 170. Knobloch v. Chicago^ M. & St P. R. Co., 180, 329. Knox County v. Aspinwall, 546, 549, 550. Knoxville Corp. v. Bird, 130, 325, 326. Koch V. Williamsport, 396. Koen, Ex parte, 61. Koester v. Commissioners of Atch- ison County, 71. Koontz V. Burgess, etc., of Han- cock, 151, 211. Kopf V. Utter, 354. Kosciusko V. Slomberg, 176. Kosmak v. New York, 404^ Kraft V. Board of Education of Weehawken Tp., 579. Kramrath v. Albany, 155. Kranz v. Baltimore, 365, 404. Kreger v. Bismarck, 576. Kreigh v. Chicago, 95, 343. Kreitz v. Behrensmeyer, 559. Kronsbein v. Rochester, 243, 415. Kuhlman v. Rost, 207. Kuhn V. Chicago, 186. Kundinger v. Saginaw, 243, Kunkle v. Franklin, 429. Kurtz V. Clausen, 369. Labourdette v. First Municipality of New Orleans, 159, 160. Lacey, Ex parte, 183. Lackland v. Walker, 483. La Clef V. Concordia, 377, 379. Ladd V. East Portland, 167. Ladd V. Portland, 108. Lafayette, M. & B. B. Co. v. Gei- ger, 50. LafCerty v. Huffman, 210. La France Fire-Engine Co. v. Da- vis, 424. Lahner v. Incorporated Town of Williams, 377. Lahr v. Metropolitan E. R. Co., 360. Lahr's Case, 358. 634 GASES CITED [The figures refer to pages] Laird v. D6 , Soto, 58, 66. Lake v. Aberdeen, 322. Lake Charles Ice, Light & Water- works Co. V. Lake Charles City, 111, 259. Lake County v. Graham, 416, 534, 550. Lake County v. Rollins, 415, 417. Lake Erie & W. B. Co. v. Alexan- dria, 105. Lake Shore Foundry Co. v. Cleve- land, 242. ' Lamar Water & Electric Light Co. V. Lamar,' 256. Lamberson v. Jefferds, 555. Lambert v. Norman, 74. Lamoille Val. B. Co. v. Fairfield, 547. Lamson Consol. Store Service Co. V. Boston, 445. Lancaster County v. Fulton, 530. Landau v. New York, 382. Landes v. State, 166, 167. Landes v. Walls, 206, 212. Landis v. Vineland, 189. Land, Log & Lumber Co. v. Brown, 447. Landolt v. Norwich, 393. Landon v. Syracuse, 490. Lane, Ex parte, 130. Lane v. Concord, 179. Lane v. Lewiston, 395. Lane v. Otis, 480. Lane v. Schomp, 223. Lane County v. Oregon, 461. Lanfear v. New Orleans, 339. Lang v. Bayonne, 59, 60. Langan v. Atchison, 399. Lange v. Benedict, 225, 244. Lange v. La Crosse & E. E. Co., 355. Langhorne v. Eobinson, 434. Langley v. Augusta, 104, 289. Langlols v. Cohoes, 402. Langsdale v. Bonton, 163. Lanning v. Carpenter, 61. Laramie County v. Albany County, 16, 434, 510, 564. Larkin, v. Saginaw County, 499. : Lamed v. Briscoe, 570, 584. Larney v. Cleveland, ,190. Larsen v. St. Paul, 559. Larson v. Grand Forks, 387. Lassen County v. Shinn, 516. Lathrop V. Central Iowa E. Co., 358. Lauenstein v. Fond du Lac, IS. Laugel V. Bushnell, 323. Launder v. Chicago, 335, 339. Launtz v. People, 151, 207. Lavelle v. Julesburg, 55. Laver v. McGlachlin, 151, 565. Laviosa v. Chicago, St. Louis & N. O. E. Co., 174. Lawe V. Kaukauna, 348. Lawler v. Lyness, 480. Lawlor v. Alton, 558. Lawrence v. IngersoU, 150, 160, 206, 213. Lawrence v. Toothaker, 224. Lawson v. Seattle, 380. Layton v. New Orleans, 60, 77, 82, 93, 105. Lea V. Hernandez, 49. Leavenworth County Com'rs v. Keller, 555. Leavenworth County Com'rs v. Miller, 564. Lebcher v. Board of Com'rs of Custer County, 530, 531, 536. Ledbetter v. Clarksvllle & E. Turn- pike Co., 521. Lee V. Dawson, 450. Lee V. Thief Elver Falls, 61, 118. Lee V. Wilmington, 212. Lee County v. Yarbrough, 402. Leeds v. Eichmond, 284, 347, 357. Le Feber v. West AUis, 289. Leflore County v. Cannon, 241. Lehman v. San Diego, 269, 550. Leiper v. Denver, 292. Lemmon v. Guthrie Center, 326. Lennon v. New York, 79, 96. Lent V. Tillson, 95. Leonard v. Boston, 394. Leonard v. Canton, 254, CASES CITED 635 [The figures refer to pages] Ijesley v. White, 499. Leslie v. St. Louis, 562. Le Tourneau v. Hugo, 244, 286. Leveridge v. Ne^v York, 214. Levitt V. Wilson, 47, 61. Levy V. New York, 382. lievy V. Salt Lake City, 388. Levy Court v. Coroner, 14, 495, 533, 570, 584. Lewick v. Glazier, 157. Lfiwis V. Albertson, 281. Lewis V. Board of Chosen Free- Iwlders of Hudson County, 521. L€wis V. Board of Com'rs of Sher- man County, 541. . Lewis V. Bourbon County Com'rs, 535. Lewis V. Forehand, 188. Lewis V. Lofley, 534. Lewis V. Shreveport, 550. Lewis V. State, 68. Lexington Life, Fire & Marine , Ins. Co. V. Page, 9. Lexington & O. R. Co. v. Apple- gate, 362. L'Herault v. Minneapolis, 391. L'Hote v. Milford,. 64. L'Hote V. New Orleans, 177, 333. Libby v. Portland, 137. Liberty Bell, The, 428, 485, 489. Ligare v. Chicago, 273. Ligonier Valley R. Co. v. Latrobe Borough, 179. Lilly v. Indianapolis, 171. Lima v. Lima Cemetery Ass'n, 303. Lincoln v. Boston, 320. Lincoln v. Stockton, 254. Lincoln v. Worcester, 467. Lincoln Land Co. v. Grant, 260, 261. Lincoln St. R. Co. v. Lincoln, 153, 154, 465. Lindsay v. Chicago, 191. Lines v. Otego, 260. Lipville V. Bohannan, 517. lipes V. Hand, 293. Lisbon Ave. Land Co. v. Lake, 278. Litchfield V. Ballou, ,415, 417. Litchfield v. McComber, 307. Litchfield v. Vernon, 440. Little V. Board of Com'rs of Ham- ilton County, 537. Little V. Committee of Union Tp., 82. Little Falls Electric & Water Co. V. Little Falls, 247, 265. Littlefield v. Boston & A. R. Co., 238. Littlefield v. Norwich, 399. Little Rock v. Merchants' Nat. Bank, 254. Little Roci v. North Little Rock, 100, 101. Littlewort v. Davis, 495, 569, 577. Livaudais v. Municipality No. 2, 195. Lloyd V. New York, 5, 375, 394, Locke V. Davison, 535. Lockhart v. Troy, 151, 211. Lockwood V. St. Louis, 296. Lockwood V. Wabash R. Co., 356. Loeb V. Attica, 132, 318, 337. Loeffler v. Chicago, 273. Logan V. Rose, 370. Logan County v. Carnahan, 459. Logansport R. Co. v. Logansport, 353. Logwood V. President, etc., of Planters' & Merchants' Bank of Huntsville, 6. Loker V. Brookllne, 238. London v. Franklin, 221. London v. Headen, 207. London & N. Y. Land Co. v. Jel- lico, 255. London & San Francisco Bank v. Block, 451. Londonderry v. Derry, 110. Long V. Duluth, 265. Long V. Elberton, 371. Long V. Jersey City, 179. Long V. Long, 228. 636 CASES CITED [The figures refer to pages] Long V. Taxing Dist. of Shelby County, 131, 173. Longfellow v. Quimby, 561. Longworth v. Sedevic, 359. Lord V. Anoka, 157. Lord V. Mobile, 392. Lord V. Oconto, 155. Lore V. Wilmington, 486. Lorensen, Ex parte, 183. Lorillard v. Monroe, 199, 499, 530. Lorsbach v. Lincoln County, 555. Los Angeles City Water Co. v. Los Angeles, 127. Los Angeles County v. Blkenberry, 526. Lothrop V. Stedman, 334. Lott V. Ross, 277, 301, 434, 458, 563. Lott V. Waycross, 417. Loughran v. Des Moines, 409. Louisiana v. Pillsbury, 565. Louisiana v. Wood, 260, 467, 539. Louisiana ex rel. Folsom v. New Orleans, 378. Louisiana ex rel. Nelson v. St. Martin's Parish, 77, 84. Louisiana ex rel. Southern Bank T. Pilsbury, 77, 84, 425, 565. Louisiana State Bank v. Orleans Nav. Co., 235. Louisville Bagging Mfg. Co. v. Central Pass. R. Co., 96. Louisville Trust Co. v. Louisville, 445. Louisville & N. R. Co. v. Davidson County Court, 16, 462, 513, 521, 564. Louisville & N. R. Co. v. East St. Louis, 284. Louisville & N.- R. Co. v. Louis- ville, 179. Louisville & N. R. Co. v. Pendle- ton County, 443. Louth V. Thompson, 359, 360, 361. Love V. Atlanta, 379. Love V. Jersey City, 213. Love V. Judge of Recorder's Court of Detroit, 320. Love V. Schenck, 79, 81. Lovejoy v. Foxcroft, 269. iiovell V. Charlestown, 573. Lovell V. St. Paul, 306. Low V. Maysville, 273. Lowber v. New York, 19. Lowe V. Board of Com'rs of Howard County^ 302. Lowe V. Conroy, 379. Lowell V. Boston, 357, 441. Lower Board of Com'rs of Roads for St. Peters Parish v. McPher- son, 495, 570. Lowry V. Lexington, 199. Loyd V. Columbus, 410. Lucas V. Board of Com'rs of Tip- pecanoe County, 79. Luce V. Board of Examiners of Dukes County, 213. Luehrman v. Taxing District of Shelby, 41, 113, 114, 115, 145, 148. Lund V. St. Paul, M. & M. R. Co., 352. Lussem v. Sanitary Dist. of Chi- cago, 583. Luther v. Borden, 22. Lutterloh v. Fayetteville, 98. Luttrell V. Knox County, 520, 521. Lux & Talbott Stone Co. v. Don- aldson, 294. Lycoming County v. Union Coun- ty, 86, 567. Lyell V. St. Clair County, 504, 528. Lyman v. Gedney, 517. Lyman v. Hampshire, 402. Lynch v. Eastern, L. F. & M. R. Co., 489. Lynch v. Lafland, 115, 145, 210. Lynde v. Winnebago County, 541, 543. ; Lyndeborough Glass Co. v. Mas- sachusetts Glass Co., 604. Lynn v. Polk, 426. Lyon V. Alley, 287, 301. Lyon V. Board of Com'rs of Grani ville County, 479. Lyon V. Irish, 231. CASES CITED 037 [The figures refer to pages]; M McAleer v. Angell, 237. McAUen v. Hamblin, 125. McAllster v. Clark, 333. McAllister v. Albany, 397. McAllister v. Bridgeport, 891. McAuli£fe v. Victor, 377. McBean v. Fresno, 20, 235. McBride v. Akron, 405. McBride v. Grand Rapids, 198, 557. McCain v. Des Moines, 100, McCain v. State, 65. McCallie v. Chattanooga, 520. McCann v. Otoe County, 266. McCann v. Sierra County, 555. McCarthy v. Chicago, 352. McCarthy v. De Armit, 226. McCarthy v. Syracuse, 360. McCartney v. Philadelphia, 405. TMcCaughey v. Tripp, 381. Macauley v. New York, 5. McChesney v. Chicago, 191, 284, . 286. McClain v. McKisson, 161. McClay v. Lincoln, 46, 61, 102, 447. McClesky v. State, 46. MeCloskey v. Albany, 260. McCloskey. v. Doherty, 3. McClbskey v. Kreling,' 325. McCloud V. Columbus, 241. McConnell v. Lexington, 349. MeConnell v. Osage, 398. McCord V. Jackson, 229. McCord V. Laiiterbach,, 242. MeCormack v. Patchin, 297. McCornlck v. Thatcher, 195. McCortle v. Bates, 154, 201, 579, 581. McCotter v. New York, 245. McCouU V. Manchester, 388. McCoy V. Briant, 133. McCoy V. State, 475. McCracken v. Lavalle, 224. McCredie v. Buffalo, 127. McCrowell v. Bristol, 18, 155, 279, 382, 383. McCue V. Wapello County, 216, 558. McCuUoch V. Ayer, 327. McCuUoch V. State, 62. McOuUoch V. State of Maryland, 19, 33, 433, 437, 446. McCullough V. Brooklyn, 424. McCune v. Norwich City Gas Co., 11. McDade v. Chester, 382. McDermott v. Boston, 408. McDonald v. Ashland, 391. McDonald v, Denton, 179. McDonald v. Louisville, 77. McDonald v. Murphee, 305. McDonald v. Newark, 217. McDonald v. New York, 238, 250, 415, 538. McDonald v. Ked Wing, 525. McDonald v. Troy, 395. McDonogh V. Murdoch, 144. McDonough v. Virginia City, 388. McDonough CoBnty v. Thomas, 519. McDonough's Ex'r v. Murdoch, 69. McDowell V. People, 286. McBlhinney v. Superior, 197, 262. McBlroy v. Albany, 378. McFarland v. Gordon, 149. McGann v. People, 356. McGavock v. Omaha, 154, 166. McGee, Appeal of, 80, 95, 358. McGee v. Salem, 79. McGehee v. Mathis, 296. McGillivray v. Joint School Dist, 429. McGinnis v. Medway, 386. McGovern v. Board of Public Works of City of Trenton, 243. McGrath v. Newton, 156. McGraw v. Whitson, 166. McGrew v. Stewart, 345. McGuire v. Spence, 393, 399. McHugh V. St. Paul, 396. Mclnerney v. Denver, 150, 191, 193. 638 CASES CITED [The figures refer to-pages] Mclnemey v. Huelefeld, 453. Mclnerny v. Reed, 483. Mcintosh V. Nome, 344. Mackay v. San Francisco, 449. ~' MeKee v. District Court of Polk County, 481. McKee v. McKee, 188, 332. McKee v. Pendleton, 288. McKee V. Perchment, 347. McKenna v. Boston, 348. McKevitt V. Hoboken, 357. McKey v. Hyde Park, 348. McKlbbin v. Ft. Smith, 326, 340. Maeklln v. Trustees of Common School Dist, 581. McLauren v. Grand Forks, 282. McLean v. East St. Louis, 158. McLoud V. Selby, 14. McMlllin V. Richards, 209. • McMinnville v. Stroud, 341. McNamara v. Estes, 299. McNulty V. New York, 231. McNulty V. Toof, 187. Macomber v. Taunton, 394. McPeeters v. Biankenship, 544. McPherson v. Chebanse, 172. McPherson v. Foster, 19, 549. McRae v. Americus, 193. McRea v. Olaln, 332. McSurley v. McGrew, 71, 72, 79. McTeer v. Lebow, 226. McVeany v. New York, 557, 558. McVey v. Barker, 332. McWethy v. Aurora Electric Light & Power Co., 354. Macy V. Duluth, 83, 262, 263. Madden v. Kinney, 202. Madden v. Lancaster County, 529. Maddox V. Brooklyn, 238. Maddox v. Graham, 238, 463, 545. Madison County v. Bartlett, 544. Madison County v. Gibbs, 537. Madry v. Cox, 99, 108, 109; Magaha v. Hagerstown, 350. Magee v. Brooklyn, 406. Magee v. Commonwealth, 300. Maggie P., The, 233. Magie v. Stoddard, 219. Magneau v. Fremont, 156, 157, 158. Magner v. St. Louis, 221. Mahady v. Bushwick R. Co., 95, 344. Maher v. Chicago, 259, 261. Mahoney v. Bank of State, 53. Main v. Ft. Smith, 155, 160. Makley v. Whitmore, 305. Malone's Estate, In re, 90. Maloy V. Marietta, §00. Maltby v. Tautges, 82. Mangam v. Brooklyn, 198. Manhattan Co. v. Ironwood, 546. Manhattan Life Ins. Co. v. Broughton, 549. Manhattan Mfg. & Fertilizing Co. V. Van Keuren, 322. Manhattan Transp. Co. v. New York, 385. Manhattan Trust Co. v. Dayton, 248. Manning v. Bruce, '321. Manning v. Den, 306. Manning v. Devils Lake, 246, 438. Manor v. State, 557. Manuel v. Commissioners of Cum- berland County, 15. Manufacturers' Ins. Co. v. Loud, 451. Marble Co. v. Harvey, 254, 261, 467. Marcy v. Oswego Tp., 552. Marietta Chair Co. v. Henderson, 344, 345, 357. Marion County v. Coler, 473. Marion County v. Grundy Coun- ty, 510. Marion Water Co. v. Marion, 237, 280. Mark v. State, 173. Markey v. Queens County, 522, 530. Markham v. Brown, 322, 525. Markle v. Akron, 21, 165. Marquis v. Santa Ana, 214. Marsh v. Board of Sup'rs of Clark County, 453. CASES CITED 639 [The figures refer to pages] Marsh V. Fulton County, 257, 259, 260, 261, 533, 538, 539, 540, 546, 547, 549, 550. Marshall v. Board of Managers of Illinois State Reformatory, 479. Marshall y. Ellwood City, 263. Marshall County v. Schenck, 549. Marshall & Bruce Co. v. Nash- vUle, 264. Marth v. Kingfisher, 381. Martin v. Brooklyn, 247, 251, 263. Martin v. Cole, 564. Martin v. Dix, 447. Martin v. Gleason, 315. Martin v. Territory, 417. Martin v. Tyler, 295. Martindale v. Palmer, 151, 168, 289. Martindale v. Rochester, 279. Maryland, to Use of Washington County, V. Baltimore & O. R. Co., 79, 487. Mason v. Cumberland, 335. Mason v. Pewabic Min. Co., 8. Mason v. Shawneetown, 15, 21, 165. Mason v. Sioux Falls, 283. Mather v. Ottawa, 440. Mathews v. Kelsey, 352. Mathewson v. Grand Rapids, 287. Matthews v. Alexandria, 18, 155. Matthews v. Board of Sup'rs of Copiah County, 559. Matthis V. Cameron, 423. Mattox V. State, 36, 46, 54. Maumee School Tp. v. School Town of Shirley City, 66. Maupin v. Franklin County, 533. Maury County v. Lewis County, • 513. Maxmilian v. New York, 89, 381, 384, 471. Maxwell v. Board of Fire Com'rs of City and County of San Francisco, 479. Maxwell .v. Jonesboro Corpora- tion, 333. May V. Anaconda, 396. Mayall v. St. Paul, 301. Maydwell v, Louisville, 443. Mayfleld v. Moore, 216, 559. Mayfleld Woolen Mills v. May- field, 434. Mayhew t. Gay Head Dist., 65, 162. Mayo V. Dover & Foxcroft Vil' lage Fire Co., 125. Mayor v. Park Com'rs, 367. Mayor, etc., of City of Americas V. Eldridge, 357. Mayor, etc., of City of Annapolis V. Harwood, 299, 435, 454, 455. Mayor, etc., of City of Baltimore V. Boyd, 283. Mayor, etc., of City of Baltimore V. Eschbach, 196, 230, 231. Mayor, etc., of City of Baltimore V. Gill, 415, 485. Mayor, etc., of City of Baltimore V. Hanson, 273, 274. Mayor, etc., of City of Baltimore V. Horn, 79. Mayor, etc., of City of Baltimore V. Howard, 461. Mayor, etc., of City of Baltimore V. Johns Hopkins Hospital, 279. Mayor, etc., of City of Baltimore V. Marriott, 388. Mayor, etc., of City of Baltimore V. Musgiave, 230. Mayor, etc., of City of Baltimore V. Porter, 562. Mayor, etc., of City of Baltimore V. Proprietors of Green Mount Cemetery, 303. Mayor, etc., of City of Baltimore V. Poultney, 149, 201, 320. Mayor, etc., of City of Baltimore V. Radecke, 174. Mayor, etc., of City of Baltimore V. Reynolds, 237, 239. Mayor, etc., of City of Baltimore V. Ritchie, 214. Mayor, etc., of City of Baltimore V. Scharf, 18. 640 CASES CITED [The figures refer to pages] Mayor, etc., of City of Baltimore V. State, 74, 80, 144. Mayor, etc., of City of Birming- hain V. Alabama G. S. K. Co., 184. Mayor, etc., of City of Birming- ham, v. Land, 406. Mayor, etc., of City of Birming- ham V. Lewis, 392, 395, 396. Mayor, etc., of City of Birming- ham V. Railway Co., 182. Mayor, etc., of City of Birming- ham V. Rumsey, 468. Mayor, etc., of City of Birming- ham V. Starr, 391. Mayor, etc., of City of Brunswick V. Finney, 50. Mayor, etc., of City of Carters- vlUe V. Baker, 371. Mayor, etc., of City of Carters- vlUe V. Lanham, 332. Mayor, etc., of City of Chatta- nooga V. Geiler, 536. Mayor, etc., of City of Columbus V. Jaques, 368. Mayor, etc., of City of Cumber- land V. Magruder, 142. Mayor, etc., of City of Detroit v. j'ackson, 239. Mayor, etc., of City of Detroit v. Park Com'rs, 29. Mayor, etc., of City of Griffin v. Inman, 142, 148. Mayor, etd, of City of Griffin v. Johnson, 402. Mayor, etc., of City of Guthrie v. Territory, 87. Mayor, etc., of City of Hagers- town V. Witmer, 331. Mayor, etc., of City of Helena v. Thompson, 376. Mayor, etc., of City of Hoboken V. Ivison,, 66. Mayor, etc., of City of Hull v. Horner, 55. Mayor, etc., of City of Indian- apolis V. Geisen, 221. Mayor, etc., of City of Jefferson- ville V. Weems, 100. Mayor, etc., of City of Jonesboro V. McKee, 465, 466. Mayor, etc., of City of Knoxville V. Bell, 388. Mayor, etc., of City of Knoxville - V. King, 63, 69, 140. Mayor, etc., of City of Knoxville V. Knoxville Water Co., 169. Mayor, etc., of City of Macon v. Huff, 368. Mayor, etc., of City of Macon v. Shaw, 221. Mayor, etc., of City of Memphis V. Kimbrough, 385. Mayor, etc., of City of Memphis V. Winfield, 174. Mayor, etc., of City of Memphis V. Woodward, 216, 558, 559. Mayor, etc., of City of Milledge- ville V. Cooley, 585. Mayor, etc., of City of Mobile v. Allaire, 318. Mayor, etc., of City of Mobile v. Baldwin, 449. Mayor, etc., of City of Mobile v. Dargan, 299. Mayor, etc., of City of Mobile v. Jones, 190. Mayor, etc., of City of Mobile v. Moog, 18. Mayor, etc., of City of Mobile v. Squires, 230. Mayor, etc., of City of Monroe v. Hoffman, 205, 325, 326. Mayor; etc., of City of Montezuma V. Minor, 146. Mayor, etc., of City of Montezuma V. Wilson, 391. Mayor, etc., of City of Morrlstown V. Shelton, 19, 121. Mayor, etc., of City of Nashville V. Althrop, 457. Mayor, etc., of City of NashviUe V. Brown, 408. Mayor, etc., of City of Nashville V. Linck, 129, 331- CASES CITED 641 [The figures refer to pages] aiayor, etc., of City of Nashville V. Ray, 253. Mayor, etc., of City of Nashville V. Thompson, 219. Mayor, etc., of City of 'Nashville V. Toney, 467. Mayor, etc., of City of Nashville V. Towns, 555. Mayor, etc., of City of New Or- leans V. Hopkins, 92. Mayor, etc., of City of New Or- leans V. Leverich, 349. Mayor, etc., of City of New Or- leans V. Morgan, 223. Mayor, etc., of City of New York, In re, 303, 367. Mayor, etc., of City of New York V. Bailey, 315. Mayor, etc., of City of New York V. Britton, 312. Mayor, etc., of City of New York V. Crawford, 467. Mayor, etc., of City of New York V. Nichols, 178. Mayor,' etc., of City of New York V. Ordenan, 329. Mayor, etc., of City of New York V. Second Ave. R. Co., 317. Mayor, etc., of City of New York v. Tenth Nat. Bank, 80. Mayor, etc., of City of Niles v. Muzzy, 198. Mayor, etc., of City of Paterson V. Barnet, 153. Mayor, etc., of City of Rome v. Cahot, 276, 315. Mayor, etc., of City of Rome v. / McWilliams, 416. Mayor, etc., of City of Savannah V. Charlton, 334, 336. Mayor, etc., of City of Savannah v. CoUens, 385. Mayor, etc., of City of Savannah V. Hartridge, 277. Miayor, etc., of City of Savannah V. Hussey, 131, 171. Mayor, etc., of Jersey City v. Howeth, 300. COOL.MUN.COEP. il Mayor, etc., of Town of Bristol v. Burrow, 190. Mayor, etc., of Town of Chatta- nooga V. State, 383, 491. Mayor, etc., of Town of Columbia V. Beasly, 456. Mayor, etc., of Town of Franklin V. Maberry, 300. Mayor, etc., of Town of Frostburg V. Hitchins, 292. Mayor, etc., of Town of Homer V. Blackburn, 331. Mays V. Cincinnati, 171, 435, 455, 457. Maywood Co. v. Maywood, 351, 364. Mead v. New Haven, 471. Mead v. Roxborough, 450. Meads v. Belt Copper Mines, 481. Meagher v. Storey County, 216. Meaher v. Chattanooga, 339. MearejS v. Commissioners of Wil- mington, 383, 388. Meday v. Rutherford, 126. Medical Inst, of Geneva College v. Patterson, 123. Medland v. Linton, 302. Meehan v. Board of Chosen Free- holders of Hudson County, 216. Meek V. State, 105. Meggett V. Eau Claire, 288. Slegowan v. Commonwealth, 130. Meissner v. Boyle, 214. Melvin v. Lisenby, 487. Memphis v. Brown, 82, 223, 289, 556. Memphis v. United States ex rel. Brown, 78, 267, 426. Memphis Gas-I^ight Co. v. Mem- phis, 259. Menasha v. Hazard, 576. Mendel v. Wheeling, 380. Mendenhall v. Burton, 61. Mendocino County v. Bank of Mendocino, 79. Menken v. Atlanta, 192. Merced County v. Fleming, 180. 642 CASES CITED [The figures reler to pages] Mercer v. OPittsburgh, Ft. W. & C. R. Co., 92, 524. Mercer County t. Hackett, 543. Mercer County v. Provident Life & Trust Co., 550, 551. Merchants' Exch. Nat. Bank t. Bergen County, 535, 545, 550, 551. Merchants' Nat. Bank of St. Paul V. East Grand Forks, 79, 86. Merchants' Union Barb Wire Co. V. Chicago, B. & Q. Ey. Co., 164, 167. Meredith v.. United States, 460. Meriwether v. Garrett, 48, 71, 114, 116, 141, 144, 146, 267, 436, 451, ■461, 462. Merrick v. Burlington & W. Plank Epa-d Co., 239. Merrick v. Intramontaine E. Co., 362. Merrill v. MonticoUo, 276, 421. Merritt v. Portchester, 282. Mersey Dock Cases, 138. Mersey Dock Trustees v. Gibbs, 585. Metcalf V. St. Louis, 165. Metcalf V. State, 185, 337. Metropolitan Board of Health v. . Heister, 140. Metzger v. Attica & A. E. Co., 487. Meyer v. Boonville, 258. ' Meyer v. Covington, 306. Meyer v. Fromm, 168, 169. Meyer v. Lincoln, 353. Meyer v. Teutopolis, 273. Meyers v. Hudson County Elec- tric Co., 355. Michel V. New Orleans, 216, 557. Michel V. Police Jury of Terre- • bonne, 289. Michener v. Philadelphia, 297. Michigan City v. Phillips, 398. Michigan Tel. Co. v. Charlotte, 355. Micks V. Mason, 326. .Middleton v. Greeson, 579. Midway v. Lloyd, 397. Mllam County v. Bateman, 554. Milarkey v. Foster, 344. Milford V. Milford Water Co., 263. Milhau v.. Sharp, 276, 354, 426. Milledge v. Kansas City, 391. Miller, In re, 188. Miller v. Board of Com'rs of Dear- born County, 419, 541. Miller v. Bowers, 489. Miller v. Bridgewater Tp. Com- mittee, 474. Miller v. Buena VisU Co., 537. Miller v. Burch, 171. Miller v. Camden, 102. Miller v. Greaves, 479. Miller v. Merriam, 542. Miller v. Milwaukee, 234. Miller v. O'Eeiley, 190. Miller v. Pineville, 105. Miller v. Savannah Fire Co., 199. Miller & Meyers v. Newport News, 381, 406. Milliken v. Weatherford, 177, 221. Mills V. Brooklyn, 364, 382," 403. Mills V. Charleston, 443. Mills V. Gleason, 206, 269, 418, 419, 429, 540, 541, 547. Mills V. San Antonio, 153, 157. Mills V. Thornton, 448, 560. Mills V. Williams, 11, 18. Milne V. Davidson, 16. Milwaukee & M. E. Co. v. Milwau- kee & St. P. E. Co., 449. Mims V. West, 550. Mindermann v. Tillyer, 213. Miners' Bank v. State of Iowa, 23. Miners' Ditch Co. v. Zellerbach, 6, 11, 237; 253. Minneapolis Gaslight Co. v. Min- neapolis, 155, 279. Minneapolis & St. L. E. Co. v. Beckwith, 320. Minneapolis & St. L. R. Co. v. LInquist, 303. Minnesota Linseed Oil Co. v. Palmer, 455. CASES CITED 643 [The figures refer to pages] Minnesota Thresher Mfg. Co. v. Langdon, 249. Minnetonka Dam, In re, 481. Minot V. West Roxbury, 434. Mlntzer v. Schilling, 112, 149. Mirande, Ex parte, 108, 333, 334. Mississippi, O. & R. R. Co. v. Cam- den, 421. Missouri Pac. R. Co. v. Wyan- dotte, 282. Mitchell V. Denver, 348. Mitchell V. Lake Tp., 448. Mitchell V. Leavenworth County Com'rs, 514, 515.. Mitchell V. Negaunee, 280. Mitchell V. Rockland, 250, 384. Mitchell V. Rome, 361. Mitchell V. Tell City, 389. Mitchell. V. Wiles, 485, 489. Mitchell County v. City Nat. Bank, 551. Mitchell County Sup'rs v. Horton, 157. Mobile V. Watson, 84, 116, 117, 118, 425. Mobile County v. Kimball, 445. Modoc County v. Madden, 560. Modoc County v. Spencer, 537. Moeschen v. Tenement House Dept. of City of New York, 313. Moffitt V. Asheville, 377, 378. Molineux, In re, 222. Monaghan v. Philadelphia, 468, 469. Monfort v. Wheelock, 202. Monk v. New Utrecht, 392. Monroe v. Lawrence,. 20, 68, 321. Monroe County v. Flynt, 528. Montezuma Valley Water Co. v. Bell, 460. Montgomery City Council v. Park- er, 359. Montgomery County v. Barber, 239, 514, 515, 536, 537, 539. Montgomery County Com'rs v. Coflfenberry, 530. Montpelier Academy Trustees v. George, 114. Moon V. Board of Com'rs of Howard .County, 529. Moon V. Ionia, 393, 399. Mooney v. Clark, 489. Mooney v. Luzerne Borough, 399. Moore, Ex parte, 212. Moore v. Cape Girardeau, 382. Moore V. Huntington, 388. Moore v. Jonesboro, 162. Moore v. Los Angeles, 409. Moore v. New York, 150, 230, 253, 254, 255, 551. Moore v. Perry, 156, 157, 158, 482. Moore V. Seymour, 479. Moore v. State, 188. Moran v. Atlanta, 319., Moran v. Long Island City, 143. Moran v. Miami County, 546, 549. Moran v. New Orleans, 173. Moran v. Pullman Palace Car Co., 382. Moreland v. Millen, 75. Moreland v. Passaic, 239, 241, 263. Morey v. BufCalo, 278. Morey v. Newfane, 500. Morford v. Territory, 557. Morford v. Unger, 17, 36, 37, 49, 105, 438, 439, 561. Morgan v. Beloit, 105, 107. Morgan v. Parham, 449. Morgan County v. Seaton, 520. Morgan County Com'rs v. Hol- man, 517. Morgantown Deposit Bank v. Johnson, 556. Moriarty v. New York, 256. Morrell v. Sylvester, 467. Morris v. Cummings, 457. Morris v. Rome, 130, 337. Morris v. Salt Lake City, 389. Morris v. State, 113, 115, 267. Morris County Com'rs v. Hinch- man, 540. Morrison v. Board of Com'rs of Decatur County, 529. Morrison v. Surges, etc., of Bor- ough of Conshohocken, 350. 644 CASES CITED [The figures refer to pages] Morrison v. Casey, 460. Morrison v. Lawrence, 471. Morrison v.Morey, 583. Morse v. Lowell, 199. Morse v. Norfolk County, 481. Morse v. Omaha, 282, 301. Morse, Williams & Co. v. Baake, 481. Morton v. Carlin, 223. Morton v. Nevada, 538. Morton v. Woodford, 31. Moser v. Boone County, 555. Moser v. White, 458, 562, 564. Mosher v. Independent School Dlst. of Ackley, 82, 416. Moss V. Cummlngs, 225, 228. Moss V. Sugar Bidge Tp., of Clay County, 260. Mostyn v. Fabrigas, 225, 226. Mott V. Hicks, 225, 539. Mott V. Pennsylvania R. Co., 426. Mott V. Reynolds, 161. Moulton V. Scarborough, 375, 384, 470. Moultrie County v. Rockingham Ten-Cent Sav. Bank, 513, 546, 549, 551. Mt. Pleasant v. Beckwith, 39, 70, 82, 105, 107, 111, 116, 267, 487. Mower v. Leicester, 388, 494, 499, 500, 529, 574. Mowery v. Salisbury, 340. Mowry v. Mowry, 574. Mueller v. Cavour, 575. Mueller v. Egg Harbor City, 159. Mugler v. Kansas, 525. Muhlenbrinck v. Long Branch Com'rs, 333. Muhler v. Hedekin, 220. Mullen V. Rutland, 402. Mulligan v. New Britain, 395. Mulligan v. Smith, 280. Municipal Security Co. v. Baker County, 516, 534. Municipality No. 1 v. Wilson, 322. Municipality No. 2 v. Dubois, 335. Municipality No. 2 v. Dunn, 296. Municipality No. 3 v. Levee Steam Cotton Press Co., 370. Munley v. Sugar Notch Borough, 395. Munn V. State of Illinois, 5, 14, 16, 68, 525. Munsell v. Carthage, 323. Munson v. Fenno, 191. Murphy v. Chicago, R. I. & P. Ry. Co., 135, 136. Murphy v. East Portland, 489. Murphy v. LouisviUe, 287, 538. Murphy v. Lowell, 138. Murphy v. Napa County-, 532. Murphy v. Ramsey, 24. Murphy v. Steele County Com'rs, 522, 555. Muscatine Turn Verein v. Funck, 49. Musick V. Latrobe, 393. Mutual Union Telegraph Co. v. Chicago, 354. Myers v. Irwin, 123. Myers v. JefCersonville, 251. Myers v. People, 68. N Naegle v. Centralia, 155. Nalle V. Austin, 414. Napman v. People, 177, 192, 467. Narbeth Borough, In re, 17, 46. Nashville v. Ray, 269, 277, 419, 423, 430, 54i; Nashville v. Sutherland, 538. Nashville, Q. & St. L. B. Co. v. Attalla, 334. Nashville, C. & St. L. R. Co. v. Franklin County, 520, 563. Nashville, C. & St. L. R. v. Hodg- es, 563. Nashville & C. R. Co. v. Wilson County, 522. Nason v. Whitney, 459. Natal V. Louisiana, 339. National Bank of Commerce v. Greneda, 169. ■ CASES CITED 645 [The figures refer to pages] National Surety Co. v. Kansas City Hydraulic Press Brick Co., 242. National Water Works Co. v. Kansas City, 134. Nazworthy v. Sullivan, 323. Nealis v. Hayward, 329. Nebraska BltuUthic Co. v. Omaha, 260. Neenan v. Smith, 444. Neff V. Wellesley, 381, 384. NeiU V. Gates, 134. Neiman v. St. Bernard, 244. Neitzel v. Concordia, 190. Nelson v. Godfrey, 360. Nelson v. Haywood County, 534. Nelson v. Justices of Carter Coun- ty, 463, 519. Nelson v. New York, 416. Nevins v. Peoria, 384. Newatk Aqueduct Board v. Pas- siac, 324. New Bedford & F. S. R. Co. v. Achushnet S. R. Co., 143. New Brunswick v. Fitzgerald, 71. New Castle v. Rearic, 241. Newcomb v. Indianapolis, 202. New Decatur v. Berry, 237, 287. New England Telephone & Tele- graph Co. V. Boston Terminal Co., 310. New Iberia v. Foutelieu, 281. New Jersey Junction R. Co. v. Jersey City, 350. New Jersey. R. & Transp. Co. v. Newark, 304. Newman v. Emporia, 164, 301. New Orleans v. Clark, 82, 86, 87, 568. New Orleans v. Home Mutual Ins. Co., 468. New Orleans v. Morris, 468. New Orleans v. New Orleans Waterworks Co., 107, 435. New Orleans v. U. S., 349. New Orleans City & L. R. Co. v. State Board of Arbitration, 488. New Orleans, M. & C- R- Co. v. Dunn, 485. New Orleans, M. & C. R. Co. v. New Orleans, 70, 72, 92. New Orleans, M. & T. R. Co. V. EUerman, 94. Newport Charter, In re, 196, 202. New Providence Tp. v. Halsey, 551. Newson v. Galveston, 338. Newton v. Keech, 487. Newton v. Mahoning County Com'rs, 451. New York y. Sheffield, 395, New York Cent. R. Co., In re, 523. New York Fire Dept. v. Kip, 17. New York, N. H. & H. R. Co. v. Wheeler, 230. New York & N. E. R. Co. v. Bris- tol, 353. New York & N. E. R. Co. v. Wa- terbury, 167. Niblett V. Nashville, 399. Niehol V. Nashville, 16, 70, 89, 90, 235. Nichols V. Bridgeport, 296, 439. Nichols v. MacLean, 216, 557. Nicholson v. Detroit, 376. Nicholson v. New York & N. H. R. Co., 362. Nickerson v. Dyer, 231. Nicoulin v. Lowery, 321. Niles Water Works Co. v. Niles, 90, 416, 417. Nisbet v. Atlanta, 379. Niver V. Bath-on-the-Hudson, 297. Noble V. Amoretti, 461. NoWe V. St. Albans, 364. Nobles V. Piollet, 481. Noel V. San Antonio, 264. Noel Young Bond & Stock Co. v. Mitchell County, 548. Nolan County v. Simpson, 432. Nolen V. State, 480. Nolin V. Franklin, 334. Noll V. Dubuque, B. & M. R. Co., 523. 646 CASES CITED [The figures refer to pages] Nordyke & Marmon Co. v. Mc- Conkey, 481. Norfolk City v. Ellis, 296. Norris V. Mayor, 105. Norris v. School Dist, No. 1 in Windsor, 580. North V. Gary, 156. Northampton County t. Easton Pass. R. Co., 79. Northern Indiana li. Co. v. Con- nelly, 300. Northern Liberties v. St. John's Church, 303. Northern Nat. Bank v. Porter Tp.,: 552. Northern Pac. R. Co. v. Lake, 356, 368. Northern Pac. R. Co. v. Spokane, 223. Northern Transp. Co. v. Chicago, 97, 251, 346, 401. North Missouri R. Co. v. Maguire, 80, 87. ' North Pac. Lumber & Mfg. Co. v. East Portland, 289, 346. North River Electric Light & Power Co. v. New York, 241. Northwestern Lumber Co. v. Aber- ' deen, 424, 431. Northwestern Lumber Co. v. Che- halis County, 450, 561. Northwestern Telephone Exch. Co. V. Anderson, 353. Northwestern Union Packet Co. V. Shaw, 253. Northwestern University v. Wil- mette, 64, 279. Norton v. Dyersburg, 235/ Norton v. Shelby County, 152, 211, 212, 531, 545, 549. Norwood V. Baker, 296, 297, 445. Nowell V. Wright, 226. Nowlen v. Benton Harbor, 306. Nunemacher v. Louisville, 197, 263. O Oakes v. Hill, 63. Oakley v. Atlantic City. 240, 284, Obion County Court v. Marr, 562. O'Brien v. Erie, 355. O'Brien v. Louer, 326. O'Brien v. New York, 218. O'Brien v. Thorogood, 201. O'Connor v. Pittsburgh, 291, 292. O'Connor v. Walsh, 201. Oconto City Water Supply Co. v. Oconto, 455. Ocorr & Rugg Co. v. Little Falls, 199. Odd Fellows' Cemetery Ass'n v. San Francisco, 313. ; Odell V. Atlanta, 333, 525. Odell V. Bretney, 357. Ogden V. Daviess County, 547, 548. Ogden V. Raymond, 196, 231. Ogden City v. McLaughlin, 20, 68, 525. Ogg V. Lansing, 379. ^ O'Hara v. New Orleans, 536. O'Hara v. Park River, 169. Ohio Life Ins. & Trust Co. v. Merchants' Ins. Sf Trust Co., 254. Oil City V. Oil City Trust Co., 336. Oklahoma City v. Meyers, 396. Old Colony R. Co. v. Fall River, 306. O'Leary, Ex parte, 323. Olive Cemetery Co. v. Philadel- phia, 303. Oliver v. Americus, 221. Oliver v. Jersey City, 211. Oliver v. Washington Mills, 453. Oliver v. Worcester, 5, 90, 347, 394, 465, 470. Olmsted v. Dennis, 228. Olney v. Pearce, 207. Olson v. Worcester, 400. Omaha Water Co. v. Omaha, 247. O'Malia v. Wentworth, 189. O'Meara v. Green, 289. O'Neil V. Flanagan, 197. O'Neil V. Tyler, 161. O'Neill V. Hoboken, 82. Ontario Bank v. Bunnell, 451. CASES CITED 647 [The figures refer to pages] Opening First St, In re, 276. Opinion of Supreme Court Judges on Tp. Organization Law, 510. Opinion of the Justices, In re, 82. Orange & A. K. Co. v. Alexandris, 451. Oregon v. Jennings, 576. O'Reilley v. Kingston, 300. Orman v. People, 475. O'Eourke v. New Orleans, 312. Orr V. Omaha, 280. Orth V. Milwaukee, 401. Osborn v. Bank of United States, 33. Osborne v. Adams County, 440, 548. Osborne v. Mobile, 561. Osborne v. Oakland, 61, 479. ■ Osburn v. Chicago, 325. Osgood V. Boston, 237. Oshkosh Waterworks Co. v. Osh- kosh, 125. ■ Ostrander v. Lansing, 364. Oswego Tp. V. Anderson, 59. Otoe County v. Baldwin, 540, 545, 548. Ott V. State, 151. Ottawa V. Carey, 250, 454, 547. Ottawa Gaslight & Coke Co. v. People, 516. Ouachita County v. Wolcott, 544. Ould V. Richmond, 155, 275. Over V. Greenfield, 239. Overseers of Poor of Norwich v. Overseers of Poor of Town of Pharsalia, 237. Overseers of the Poor of City of Boston V. Sears, 202, 583. Owen County Com'rs v. Spangler, 562. Owens V. Lancaster, 406. Oyster v. Bank, 480. Pacific Bridge Co. v. Clackamas County, 529. Pacific Coast Sav. Soc. v. San Francisco, 449. Pacific Sheet Metal , Works v. Roeder, 448. Packard v. Hayes, 257. Padavano v. Fagan, 167, 168, 473. Padelford v. Eagle Grove, 397, 398. Page V. Belvin, 133. Page v. Board of Supervisors, 42. Page V. Hardin, 216. Page County v. American Immi- grant County, 518. Paige V. Fazackerly, 181, 339: Paine v. Boston, 171. Paine v. Spratley, 461. Palmer v. Danville, 274, 298. Palmer v. Fitts, 81, 502. Palmer v. Haverhill, 288. Palmer v. Pettingill, 460, 461. Palmer v. Portsmouth, 408. Palmer v. Stumph, 296. Pana v. Bowler, 546. Pancoast v. Troth, 142. Papworth v. Milwaukee, 360. Parish v. Golden, 286. Parish Board of School Directors V. Shreveport, 428. Parish of Tensas v. Britton, 521, 541, 543, 544. Parker v. Bethel Hotel Co., 8, 9. Parker v. Board of Sup'rs of Da- kota County, 557. Parker v. Challiss, 300, 301. ■ Parker v. Macon, 331, 387. Parker v. New Brunswick,. 343, 458. Parker v. Zeisler, 105. Parkersburg v. Brown, 254, 422. Parks V. Ross, 224. Parr v. Greenbush, 265, 578. Parrott v. Bridgeport, 276, 476. Parrotte v. Omaha, 274. Parsel v. Barnes, 230, 237. Parsons, In re, 215. Parsons v. Goshen, 495. Persons v. Grand Rapids, 281. Parsons v. Monmouth, 235. Parsons r. Trustees of Atlanta University, 350. 648 CASES CITED [The figures refer to pages] Patterson v. Austin, 396. Patterson v. Barber Asphalt Pav. Co., 244. IPatterson v. Johnson, 325. Patterson v. Mississippi & R. B. Boom Co., 524. Patterson v. Taylor, 475. Patton V. Chattanooga, 361. Patton V. Stephens, 251. Paul V. Kenosha, 254, 538. Paul V. Walkerton, 100, 104. Paulson V. Pelican, 400. Eauly Jail Bldg. & Mfg. Co. v. Board of Com'rs of Kearney County, 542. Pavey v. Braddock, 108. Paxton V. Bogardus, 277. Payne v. English, 223, 483. Payne v. South Springfield, 274, 300. Payne v. Treadwell, 81. Peacock & Co. v. Pratt, 453. Peake v. Superior, 389. Pease v. Cornish, 559. Peay v. Little Rock, 301. Peck V. Austin, 378. Peck V. Bridgeport, 281, ' Peck V. Rochester, 168. Peed V. McCrady, 538. Pegram v. Cleaveland County Com'rs, 513. Peik V. Chicago & N. W. R. Co., 5. Pell V. Newark, 41, 71. Pence v. Bryant, 285, 359. Peijce V. Frankfort, 105, 109, 151. Pendleton County v. Amy, 549. Pennie v. Reis, 566. Pennoyer v. Saginaw, 375. Pennsylvania Co. v. Chicago, 378. Pennsylvania Co. v. Pittsburgh, 111. Pennsylvania D. & M. Steam Nav. Co. V. Dandridge, 256. Pennsylvania R. Co. v. Jersey City, 182, 186. Pennsylvania R. Co. v. Lipincott, 96. Pennsylvania R. Co. v. Philadel- phia, 421. [Penny v. Croul, 89. People V. Ah Ung, 68. People V. Albany Corp., 491, 492. People V. Albertson, 74, 75, 143, 198, 205. People V. Alturas County, 510. People V. Armstrong, 171, 179. People V. Assessors of Village of Watertown, 3, 8. People V. Austin, 438, 440. People V. Ballhorn, 203. People V. Bancroft, 117. People V. Bartlett, 210. People V. Batchellor, 87, 438, 453, 474. People V. Batchelor, 157, 158. People V. Bay City, 319. People V. Bender, 225, 229. People V. Benfleld, 467. People V. Bennett, 19, 20, 30, 31, 37, 43, 68, 70, 98, 101, 102, 119, 525. People V. Blair, 151. People V. Blocki, 356. People V. Bloomington, 473. People V. Board of Com'rs of Cook County, 475. People V. Board of Delegates of San Francisco Fire Department, 199. People V. Board of Police Com'rs, 221. People V. Board of Police for Met- ropolitan Police Dist., 218. People V. Board of Sup'rs of Clark County, 462, 522. People V. Board of Sup'rs of El Dorado County, 543. People V. Board of Sup'rs of Es- sex County, 80, 86, 568. People V. Board of Sup'rs of Ful- ton County, 539. People V. Board of Sup'rs of Glad- win County, 62. People V. Board of Sup'rs of San Luis Obispo County, 83, 85, 567. CASES CITED 649 [The figures refer to pages] /People V. Bogart, 215. People V. Bond, 84, 85, 267. People V. Borda, 315. People V. Bowman, 61. People V. Brennan, 216. People V. Brooklyn, 80, 288, 296, 437, 444, 448. People V. Brown, 68. People V. Burke, 286. People V. Burr, 51, 80, 87, 568. People V. Butte, 16, 17, 23, 35, 40, 49. People V. Canaday, 63. People V. Carpenter, 19, 102. People V. Carrique, 218. People V. Cheritree, 482. People V. Chicago, 75, 367. People V. Clunie, 142. People v. Clute, 138. People V. Coleman, 71, People V. Com'rs Dept. Fire & Buildings, 220. People V. Com'rs of Taxes, 448. People V. Cooper, 71, 212, 229. People V. Cornell, 163. People y. Corporation of Albany, 383. People V. Cregier, 172, 337. People V. Detroit, 5, 15, l6, 20, 67, 68, 72, 73, 74, 75, 81, 87, 90, 139, 143, 200, 367, 452. People V. Detroit United Ey., 111. People V. Devlin, 213. People V. Diamond, 226. People V. Drape, 112. People V. Draper, 34, 46, 74, 75, 80, 199. People V. Eureka Land & Tuba Canal Co., 562, 564. People V. Farnham, 54, 62. People V. Ferris, 209, 210. People V. Fields, 79, 347. People V. Flagg, 83, 85, 439, 444. People V. Fleming, 31, 33, 50. People V. Foody, 226. People V. Forrest, 6. People V. Freeman, 206. People V. Gardner, 172. People V. Gilbert, 178. People V. Goldtree, 458. People V. Gooseman, 68. People V. Gordon, 186. People V. Grand Trunk Western By. Co., 136. People V. Green, 219. People V. Gregg, 200. People V. Gunn, 50. People V. Hagadorn, 565. People V. Hamilton, 204. People V. Hanifap, 218, 219. People V. Hanraban, 319. People V. Harper, 87, 570, 584. People V. Harris, 362, 370, 371. People V. Harshaw, 150. People V. Hartwell, 479. People V. Hecht, 152, 211. People V. Henshaw, 64. People V. Herring, 209. People V. Hill, 60, 114. People V. Hofeman, 208. People V. Holly, 325. People V. Hulett, 68. People V. Hull, 218. People V. Hurlbut, 15, 16, 19, 20, 68, 70, 73, 74, 75, 76, 90, 115, 138, 139, 143, 199, 200, 373, 444, 494, 509, 561, 562. People V. Ihnken, 161, 162. People V. IngersoU, 90, 511, 512. People V. Inspectors, etc., of State Prison, 476. People V. Johnson, 476. People V. Jones, 351. People V. Keechler, 581. People V. Kent, 243, 244. People V. Kerr, 70, 91, 92, 95, 96, 344. People V. Kilduff, 213, 474. People V. Kingman, 369, People V. Latham, 170. People V. Lathrop, 495. People V. Lease, 47. People V. Leonard, 205. People V. Linden, 42, 43. People V. Loeffler, 208. People V. Los Angeles, 57, 102. 630 CASES CITED [The figures refer to pages] People V. Lowber, 4S6. People V. Loyalton, 43, 47. People V. Lynch, 199. People V. McAllister, 220, 221. People V. McBride, 70. People V. McClave, 230. People V. McClintock, 315. People V. McDonald, 75, 138. People V. McFadden, 50. People V. McFall, 581. People V. McGulre, 221. People V. McKinney, 138, 206, 207. People V. McWethy, 279. People V. Mahaney, 75, 80. People V. May, 415, 416, 534. People V. Maynard, 37, 61, 62. People V. Meyfir, 79. People V. Miller, 216, 333. People V. Morris, 11, 15, 16, 17, 20, 40, 49, 65, 67,. 76, 82, 91, 115, 124, 141, 142, 147, 148, 451, 566. People V. Morse, 567. People V. MulhoUand, 335. People V. Murray, 167, 218. People V. Nally, 32, 510. People V. Nearing, 357. People V. Neilson, 199. People V. Nevada, 31. People V. New, 43. People V. New York, 220, 259, 352, 523. People T. New York & H. R. Co., 80, 95. People V. Nibbe, 47. People V. Nichols, 212, 221, 561. People V. North River Sugar Re- fining Co., 9. People V. Nostrand, 211. People V. Oakland, 100. People V. Oakland Water Front Co., 109. People V. O'Keefe, 343. People V. Olds, 476. People V. Ontario, 100. People V. Page, 64. People V. Parker, 218. People V. Pease, 478. People V. Perry, 476. People V. Pierce, 310. People V. Pinckney, 199. People V. Piatt, 203. People V. Porter, 217. People V. Power, 76, 79, 554. People V. President, etc., of Man- hattan Co., 18, 50. People V. President, etc., of Vil- lage of Brooklyn, 476. People V. Pullman's Palace Car Co., 504. People V. Rector, etc., of Church of the Atonement, 150. People V. Reynolds, 41, 50. People V. Riverside, 33, 34, 43. People V. Rochester, 280. People V. Rodgers, 209. People V. Rontey, 336. People V. St. Louis, 22. People V. Salomon, 50. People V. Salt Lake City, 415. People V. San Luis Obispo, 406. People V. Sausalito, . 43. People V. Sawyer, 183. People V. Smith, 61, 282, 460. People V. Smyth, 558. People V. Staton, 211. People V. Stevens, 153. People V. Stockton & C. R. Co., 565. People V. Stout, 16. People V. Stowell, 154. People V. Stratton, 42, 195. People V. Sturtevant, 222. People V. Supervisor of Barnett Tp., 218. People V. Sup'rs of Albany Coun- ty, 215. People V. Sup'rs of City and Coun- ty of New York, 215. People V. Swift, 255. People V. Syracuse, 474. People V. Tazewell County, 544. People V. Terry, 212. People V. Troy, 243. People V. Trustees of Schools, 577. People V. Trustees of Village of Ogdensburgh, 450. CASES CITED 651 _[Tlie figures refer to pages] ■ People V. Tweed, 145. People V. Van Cleave, 222, 4T5. People V. Wagner, 335. People V. Walker, 163. People V. Walsh, 80. People V. Watseka Gamp Meet- ing Ass'n, 446. People V. Weber, 287. People V. Wendell, 431. People V. White, 211. People V. Whitlock, 220". People V. Williams, 583. People V. Wilson, 345. People V. Wong Wang, 68. People V. Wood, 200, 424, 559. People V. Wren, 8,~17, 30, 34, 37. People V. Wright, 34, 150, 151. People ex rel. Argus Co. v. Bres- ler, 151. People ex rel. Babylon R. Co. v. Board of R. Com'rs of State of New York, 481. People ex rel. Bank for Savings in City of New York v. Miller, 447. People ex rel. Boyd v. Hertle, 475. People ex rel. City of New York V. Board of Assessors, 446. People ex rel. Clapp v. Ldstman, 475. People ex rel. Coughlin v. Glea- son, 243. People ex rel. De Groat v. Mar- lett, 223. People ex rel. Dives-Pelican Min. Co. V. Feitner, 450. People ex rel. Durand-Ruel v. Wells, 450. People ex rel. French v. Town, 236. People ex rel. Goodwin v. Coler, 473. People ex rel. Joyce v. York. 477. People ex rel. Kellner v. New York, 86. People ex rel. Kittredge v. Ma- bie, 100. People ex rel. Lawyer v. Board of Sup'rs of Schoharie County, 473. People ex rel. Lemmon v. Feitner, 450. People ex rel. Lewis v. Brush, 158. People ex rel. Lieberman v. Van- decarr, 321. People ex rel. Loughran v. Board of R. Com'rs, 481. People ex rel. Lucey v. MoUoy, 473. People ex rel. Mershon v. Shaw, 481, 482. People ex rel. New York Cent. & H. R. R. Co. v. Knight, 449, 450. People ex rel. New York Electric Lines v. Squire, 79. People ex rel. Nichols v. Board of Sup'rs of Queens County, 285. People ex rel. Nostrand v. Wilson, 473. People ex rel. Oak Hill Cemetery Ass'n V. Pratt, 79. People ex rel. Orinoka Mills v. Barker, 451. People ex rel. Osborne v. Gilon, 482. People ex rel. Pennell y. Treanor, 478. People ex rel. Philip Carey Mfg. Co. V. Commissioners of Taxes & Assessments, 450. People ex rel. Rhodes v. Mole, 473. People ex rel. Rodgers v. Coler, 72, 92, 242. People ex rel. Sinnott v. Trustees of Brooklyn Bridge, 212. People ex rel. Smart v. Board of Sup'rs, 473. People ex rel. Stratton v. Stratton, 209. People ex rel. T. Martin Bros. Mfg. Co. V. Barker, 445. People ex rel. Tyroler v. Warden of City Prison of New York, 314. 652 CASES CITED [The figures refer to pages] , People ex rel. United Auctioneers of New York v. Scully, 476. People ex rel. United States Standard Voting Mach. Co. v. Geneva, 168. Perdue v. Ellis, 140, 165. P6reles V. Watertown, 78. Perin v. Carey, 144. Perine Contracting & Paving Co. V. Pasadena, 155. Perkins v. Burlington, 447. Perkins v. New Haven, 198, 378. Perkins v. Oxford, 402. Perkins v. Slack, 88, 368, 373, 452, 455. Perley v. Georgetown, 471. Perry v. New Orleans, M. & C. R. Co., 362, 370. Perry v. Bockdale, 561. Perry v* Torrence, 449. Perry V. Worchester, 364, 403. Peterson v. New York, 259, 261, 467. Peterson v. Santa Eosa, 406. Petit V. Bousseau, 559. Pettengill v. Yonkers, 407. Pettigrew v. Evansville, 406. Pettlt V. Grand Junction, Greene County, 361. Pettit V. Yewell, 204. Petz V. Detroit, 311. Phelan v. New York, 288. Phelps V. New York, 155, 279. Philadelphia v. Dibeler, 272. Philadelphia Ass'n for Relief of Disabled Firemen v. Wood, 440. Philadelphia, W. & B. R. Co. v. Appeal Tax Court of Baltimore City, 449. Phillips V. Reed, 415, 424. Phillips V. Wickham, 7. Phillipsburg Electric Lighting, Heiating & Power Co. v. Phil- lipsburg, 354. Phoenix Assur. Co. of London v. Fire Dept. of Montgomery, 438, 440, 453. Phoenix Fire & Marine Ins. Co. v. Tennessee, Use of Memphis, 446. Phoenix Iron Co. v. Common- wealth, 475. Pickard v. Collins, 324. Pickles -v. Ansonia, 293. Pidgeon v. McCarthy, 55. Pierce v. Aurora, 181. , Pierce v. Kimball, 339. Pierce v. 'Roberts, 350. Piercy v. Averill, 227. Pierson v. People, 284, 286. Pike v. Megoun, 171. Pike's Peak Power Co. v. Colorado Springs, 247. Pilie V. New Orleans, 556. Pine Hill, In re, 42. Piuney v. Brown, 230. Pioneer Iron Co. v. Negatinee, 434. Piper V. Spokane, 391. Pipper V. Carpenter, 474, 479. Pittsburgh, C, C. & St L. R. Co. V. Anderson, 98. Pittsburgh, C, O. & St. L. R. Co. V. Crown Point, 184. Pittsburgh, C, C. & St. L. R. Co. v. Taber, 303. Pittsburg, Ft. W. & C. R. Co. v. Chicago, 356. Pitzman v. Freeburg, 235, 421. Planters' Oil Mill v. Monroe Waterworks & Light Co., 381. Piatt V. San Francisco, 39, 123. Platter v. Seymour, 293. Plimpton V. Somerset, 86. Plymouth Com'rs v. Pettijohn, 140. PoUce Jury of Parish of Ouchita V. Monroe, 584. Ppllce Jury of Parish of Tensas v. Britton, 521, 541, 543, 544. Polk V. McCartney, 283. Polk V. Plummer, 14, 570, 584. Pollock's Adm'r v. Louisville, 378. Pomeroy v. Wells, 495. Pompton Tp. v. Cooper Union, 576. CASES CITED 653 [The figures refer to pages] Pontiac v. Oxford, 162. Pool V. Trexler, 357. Poole V. Jackson, 391. Pope V. Brandon, 9. Poppleton V. Moores, 489. Porter v. Thomson, 229. Porter v. Vinzant, 128, 129, 331. Port Gibson v. Moore, 118. Port Jervis Waterworks Co. v. Port Jervis, 259. Portland Lumbering & Mfg. Co. v. East Portland, 250, 265, 266. Portland Sav. Bank v. Montesano, 474. Portland & W. V. R. Co. v. Port- land, 69, 91, 92, 95. Port of Mobile v. Watson, 84, 116, 117, 118. Postal Tel. Cable Co. v. Norfolk, 451, 457. Potter V. Lalnhart, 545. Potts V. Philadelphia, 488. Powell V. Bowen, 399. Powell V. Parkersburg, 100, 143. Powell V. Pennsylvania, 321, 525. Powell V. Scranton, 108. Powers, Appeal of, 299. Powers V. Decatur, 464. Powers V. Penn Mut. Life Ins. Co., 395. Poyer v. Des Plaines, 323. Prather v. Lexington, 196, 320, 377, 378. Pratt V. Utchfield, 326, 525. Pratt V. Swan, 209. Prescott V. Lennox, 110. President, etc., of Bank of Chil- licothe V. Chillicothe, 268, 418, 419, 541. President, etc., of Bridge over River Lehigh v. Lehigh Coal & Nav. Co., 7. President, etc., of City of Pater- son V. Society for Establishing Useful Manufactures, 22, 38, 41, 49, 91, 120, 303. President, etc., of Harvard Col- lege V. Board of Aldermen of City of Boston, 304, 446. President, etc., of Michigan State Bank v. Hastings, 22. President, etc., of Town of Chil- licothe V. Chillicothe, 541. President, etc., of Town of Peters- burg V. Mappin, 266. President, etc., of "Village of Platteville v. Bell, 130. Presidio County v. City Nat. Bank, 549. Pressman v. Dickson City, 403. Preston v. Bacon, 215, 556. Preston v. United States, 219. Price V. Baker, 206. Price V. Beale, 150. Price V. People, 313. Price V. Thompson, 868. Prickett V. Marceline, 415. Prideaux v. Mineral Point, 392. Priet V. Rpis, 425, 432. Prlmm v. Carondelet, 217. Prince v. Crocker, 70, 81, 95, 223, 280, 368, 443, 453. Prince v. Skillin, 195.. Prince George's County Com'rs v. Bladensburg, 37. Pritchett v. People, 151. Privett V. Bickford, 204. Probasco v. Moundsville,' 142. Proprietors of Jeffries Neck Pas- ture V. Ipswich, 69. Proprietors of Land of Southold V. Horton, 17. Proprietors of Mt. Hope Cemetery V. Boston, 69, 92. Protzman v. Indianapolis & O. R. Co., 346. Prout V. PIttsfleld Fire Dist., 202. Providence Bank v. Billings, 433. 437, 443, 446. Provident Inst, for Savings v. Allen, 302. Provident Life & Trust Co. v. Mercer County, 547. Provo City v. Shurtliff, 185, 337. 654 GASES CITED [The figures refer to pages] Pruden v. Love, 226. Pryor v. Kansas City, 237. Ptacek V. People, 479. Pugh V. Little Eock, 533. Pulaski County v. Keeve, 15, 494. Pullman v. New York, 233, 266, 276. Pumpelly v. Green Bay & M. Ca- nal Co., 291. Pumphrey v. Baltimore, 83, 85, 96, 276, 453. Purdy V. Independence, 214. Purdy V. People, 41. Putnam v. Douglas County, 294. Pye V. Peterson, 326, 340. Pyle V. Brenneman, 449. Quaker City Nat. Bank v. Nolan County, 553. Quaker City Nat. Bank of Phila- delphia V. Tacoma, 423, 424. Queens County Water Co. v. Mon- roe, 434. Quill V. Indianapolis, 415. Qulnchard y. Board of Trustees of Alameda, 481. Quinn, In re, 211. Quinton v. Burton, 223. R Rabbetto v. Mott, 186. RadelifC's Ex'rs v. Brooklyn, 291. Rader v. Southeasterly Road Dlst. of Union Tp., 91. Rae V. Flint, 265. Railroad Commission Cases, 14. Rains v. Oshkosh, 62. Raleigh & G. R. Co. v. Davis, 11, 523. Ralls County Court v. United States, 78, 435. Randall v. Elwell, 449. Ranken v. McCallum, 66. Ransom v. Belvidere, 391, 400. Ranson v. Kitner, 340. Rapelye v. Van Sickler, 577. Rathbone v. Board of Com'rs of Kiowa County, 558. Rathbone v. Hopper, 576. Raton Waterworks Co. v. Raton, 237, 264, 431. Rau V. Little Rock, 171. Rauh V. Board of Com'rs of De- partment of Public Works, 202. Raush V. Ward, 537. Ravenna v. Pennsylvania Co., 184. Rawson v. Spencer, 81. Ray V. Colby & Tenney, 350. Ray V. Wilson, 222, 430. Rayburn v. Davis, 532. Ray County v. Bentley, 16. Ray County v. Vansycle, 549. Raymond v. Fish, 68, 525. Raymond v. Keseberg, 352. Raymond v. Stearns County Com'rs, 529. . Raymond v. Wichita, 65. Raymond's Estate v. Rutherford, 300. Raynolds v. Cleveland, 845. Raynsford v. Phelps, 228. Reat V. People, 450. Reclamation Dist. v. Goldman, 295. Rector v. State, 68. Reddall v. Bryan, 438, 524. Redell v. Moores, 30, 83, 70. Red Star Line S. S. Co. v. Jersey City, 175. Reed v. Anoka, 84, 135, 235, 248. Reed v. Louisville, 168. Reed v. Orleans, 239. Reed v. Toledo, 299. Reed City v. Madison, 894. Rees V. Watertown, 114, 463. Reeves v. Anderson, 117. Reeves v. Treasurer of Wood County, 523. Regenstein v. .Atlanta, 284, 444. Regents of University v. McCon- nell, 11. Regents of University v. Williams, 112. CASES CITED 635 [Tie figures refer to pages] Regents of University of Mary- land V. Williams, 11. Regina v. Bewdley, 113. Reichard v. Flinn, 368. Reichard v. Warren County, 535. Reld V. Clay, 241. Reif T. Paige, 215. Reiff V. Conner, 160. Reilly v. Albany, 289. Reilly v. Racine, 167, 350, 358. Reiter v. State, 217, 218. Rens V. Grand Rapids, 236, 237. Rensselaer County Sup'rs v. Bates, 237. Requa v. Rochester, 350. Renting v. Titusrille, 230, 244, 279. Rex V. Amory, 112. Rex V. Grosvenor, 113. Rex V. Kent, 113. Rex V. Miller, 113. Rex V. Morris, 113. Rex V. Osbourne, 113. Rex V. Oxfordshire, 375. Rex V. Pasmore, 113. Rex V. Saunders, 113. Rex V. Stepney, 473. Rex V. Stewart, 113. Rex V. Stratford on Avon, 55. Rex V. Tregony, 113. Reynolds v. Albany, 370, 371. Reynolds t. United States, 24, 33, 34. Reynolds v. Waterville, 415. Rice V. Milwaukee, 414. Rice V. Plymouth County, 536, 539. Rich V. Chicago, 279. Rich V. McLaurin, 205. Rich V. Mentz, 539. Richards v. Clarksburg, 149, 150, 201, 220. Richardson v. Grant County, 530, 532, 538, 543. Richardson v. Morgan, 296. Richardson v. Omaha, 157. Richland County v. Lawrence County, 77, 79, 81, 566. Richmond, F. &P. R. Co. v. Rich- mond, 329. Richmond Mayoralty Case, 138. Richmond Safety Gate Co. v. Ash- bridge, 329. Richmond & D. R. Co. v. Brog- den, 565. Richmond & W. P. Land, Nav. & Imp. Co. V. West Point, 69. Richter v. New York, 297. Riddlck V. Amelin, 23, 24, 35. Riddle v. Proprietors of Merri- mack River Locks & Canals, 13, 500. Rider v. Portsmouth, 198. Righter v. Newark, 294. Riley y. Trenton, 193. Ring V. Cohoes, 394, 395. Ring V. Johnson County, 515, 539. Rippe V. Becker, 68. Risley v. Utica, 454. Rissing v. Ft. Wayne, 199. Ritchie v. Franklin County, 548. Ritchie v. South Topeka, 118. Rittenhouse v. Baltimore, 426. River Rendering Co. v. Behr, 173. Rivers v. Augusta, 401. Riverside & A. Ry. Co. v. River- side, 272. Rives V. Columbia, 227. Roane County v. Anderson Coun- ty, 510. Roanoke Gas Co. v. Roanoke, 290. Robbins v. Lincoln County Court, 544. Robbins v. Taxing Dist. of Shelby County, 454. Roberson t. Bayonne, 479. Robert V. Sadler, 360. Roberts v. Detroit, 389. Roberts v. First Nat. Bank, 263. Roberts v. Ogle, 178, 331, 332. Robertson v. Breedlove, 254, 269, 419, 541. Robertson v. Omaha, 289. Robey v. County Com'rs of Prince George's County, 473, 847. Robie V. Sedgwick, 55, 577, 656 CASES CITED [The figures refer to pages] Robinson, In re, 204. Robinson v. Baltimore, 170. Robinson v. Evansville, 380. Robinson v. Fowler, 576. Robinson v. Franklin, 166, 336, 525. Robinson v. Greenville, 382. Robinson v. Jones, 36, 37. Robinson v. Rohr, 225, 227. Roche V. Jones, 151, 152, 211. Rocheblave Market Co. v. New Or- leans, 451. Rochester White Lead Co. v. Rochester, 404. Rochester & L. O. Water Co. v. Rochester, 354. Rock Island County v. Steele, 504. Roe V. Kansas City, 397, 399. Roe V. St. John, 565. Roff V. Calhoun, 415. Rogers v. Board of Sup'rs of Westchester County, 562. Rogers v. Buffalo, 208. Rogers v. Burlington, 23, 238, 434. Rogers v. Danby Universalist Soc, 9. Rogers v. Jones, 178, 319. Rogers v. Lee County, 544. Rogers v. People, 13, 15, 495, 578. Rogers v. St. Paul, 273, 274, 288. Rollins V. Board of Com'rs, 229. Rolph V. Fargo, 300. Roman Catholic Archbishop of San Francisco v. Shipman, 3. Romero v. United States, 557. Rommeney v. New York, 395. Rondot V. Rogers Tp., 422. Roosevelt v. Draper, 487. Root's Case, In re, 294. Roper V. McWhorter, 226, 483. Rose V. Hardle, 69, 142, 188. Rose V. Hawley, 66. Rose V. Low, 242. Rose V. Toledo, 376, 379. Roseboom v. Jefferson School Tp., 579. Rosell v. Board of Education of Neptune City, 207. Rosenheim, Ex parte, 188. Rosett'a Gravel Pav. & Imp. Co. V. Jollisaint, 305. Rosevere v. Osceola Mills, 391. Ross V. Butler, 490. Ross V. Madison, 163, 239, 536. Ross V. Stackhouse, 244. Ross V. Wimberley, 118. Rothrocb v. Carr, 517. Rounds V. Mumford, 226, 227. Roundtree v. Galveston, 296. Rounsaville v. Kohlheim, 490. Rouse y. Moore, 583. Rowe V. (Portsmouth, 386. Rowell V. School Dist., 580. Rowland v. Superintendents of Poor for Kalamazoo County, 375. Royce v. Salt Lake City, 379. Rudisill V. State, 474. Ruggles V. Collier, 278. Ruggles V. Nantucket, 18. Rumsey v. People, 37, 61. Rumsey v. Sauk Centre, 66, 110, 118. Rumsey Mfg. Co. v. Schell City, 166, 168. Rundell v. Lakey, 460. Rusher v. Dallas, 198. Rushville Gas Co. v. Rushville, 159, 336. Russell V. Cage, 519. Russell V. Men of Devon, 392, 492, 499, 504. Russell V. Place, 547. Russell V. Tacoma, 471. Russell V. Tate, 252, 483. Russell V. Toledo, 400. Rutgers College Athletic Ass'n v. New Brunswick, 168. Rutland v. West Rutland, 573. Rutland Electric Light Co. v. Marble City Electric Light Co., 354. Rutledg" V. Fogg, 565. Ruttle V. Covington, 354, 356, 362. Ryan v. Central City, 447. Ryan v. Dakota County, 555. CASES CITED [The flgurss ref er ta pages] 657 Ryan v. Paterson, 135, 233, 236. Ryan v. Tuscaloosa, 157. Ryce V. Osage, 214. Ryder's Estate v. Alton, 161, 162. Ryerson v. Utley, 439. Sackett v. New Albany, 417. Sadler, In re, 102. Safety Insulated Wire & Cable Co. y. Baltimore, 90. Sage V. Brooklyn, 295. Sage 7. Fargo Tp., 551. Sage V. Laurain, 226, 228. St Joseph Fire & Marine Ins. Co. V. Leland, 228. St Louis T. Fischer, 191. St Louis V. St Louis R. Co., 184, 192. St Louis V. Wiggins Ferry Co., 449. St. Louis County Court v. Gris- wold, 74. St. Louis County Court V. Sparks, 213. St Louis Gaslight Co. v. St Louis, 111. St. Louis Quarry & Construction Co. V. Frost, 243. St Louis & S. R. Co. V. Lindell R. Co., 355. St. Paul Gaslight Co. v. Sand- stone, 61. St. Vincent Female Orphan Asy- lum V. Troy, 352. Saleno v. Neosho, 158, 168. Saline County v. Wilson, 529. Saline County Com'rs v. Ander- son, 216, 558. Salisbury v. Andrews, 352, 363. Salmon T. Haynes, 160. Salt Lake City v. HoUister, 410. Salt Lake County v. Golding, 533. Samiuons v. Gloversville, 490. Sampson v. People, 532. Sanborn r. Neal, 224. Sanborn v. Rice County Com'rs, 86, 565, 568. CooL.MuN.OoRP. — 42 • Sanborn v. School Dist No. 10, Rice County, 358, 578. Sandusky City Bank v. Wilhor, 426. Sanford V. Boyd, 196. San Francisco Gas Co. v. San Francisco, 90, 167. San Francisco Gaslight Co. v. Dunn, 134. Sangamon & M. R. Co. v. Morgan County, 560. Sanitary Reduction Works of San Francisco v. California Reduc- tion Co., 322. Sank V. Philadelphia, 160, 168. Santa Ana Water Co. v. San Bue- naventura, 197, 263. Sauer v. New York, 291. Saulsbury v. Ithaca, 397. Saunders v. Fitzgerald, 430. Saunders v. Ft. Madison, 380. Savage v. Bangor, 530. Savage v. Pickard, 558. Savage v. Tacoma, 166. Savannah & T. R. Co. v. Savan- nah, 96, 362. Sawmill Run Bridge, In re, 273. Sawyer, In re, 153, 482. Sawyer v. Corse, 228. Scales V. Faulkner, 209. Scales V. Ordinary of Chattahoo^ chee County, 13, 495, 502, 578. Scalf V. ColUns, 517. Schenley v. Commonwealth, 301, 348, 458. Schigley v. Waseca, 70. Schipper v. Aurora, 260, 261. Schmalzried v. White, 327. Schmidt v. Indianapolis, 178, Schmidt v. Lewis, 170. Schmidt v. Stearns County, 540. Schmitz V. Germantown, 370. Sehneck v. Jeffersonville, 125. Schneider v. Menasha, 125, 141, 252, 253, 260. Schoen v. Atlanta, 322. Schofield V. Tampico, 157, 166. School Com'rs v. Dean, 53, 122. 658 CASES CITED [The figures refer to pages] School Com'rs of Washington County V. Wagaman, 579. Schoolcraft's Adm'r v. Louisville & N. K. Co., 208. School Dist. V. Bennett, 578, 579. School Dist. No. 1 V. Weber, 83, 86. School Dist. No. 2 v. Clark, 163. , School Dist. No. 3 v. Bodenhamer, 576. School Dist. No. 3 v. Macloon, 577. School Dist. No. 3 of Everett Tp. V. School Dist. No. 1 of Wilcox Tp., 576. School Dist. No. 4 v. Smith, 479, 578. School Dist. No. 5 in Sanford v. Lord, 470. School Dist. No. 7 of Wright County v. Thompson, 577. School Dist. No. 11 v. Williams, 13, 495. School Dist. No. 56 v. St. Joseph F. & M. Ins. Co., 41. School Dist. No. 80 v. Brown, 579, 581. School Dist. Tp. v. Lombard, 422. School Town of Milford v. Pow- ner, 579, 580. School Town of Milford v. Zeigler, 579. School Town of Princeton v. Geb- hart, 570. School Town of Winamac v. Hess, 415, Schriber v. Langdale, 108. Schultes V. Bberly, 15. Schultze v. Manchester Tp., 416, 425. Schuyler County v. Mercer Coun- ty, 528. Schuylkill County Com'rs v. Sny- der, 540. Schwartz v. Oshkosh, 168, 169. Schwartz v. Thirty-Two Flatboats, 457. Schwede v. Hemrich Bros. Brew- ing Co., 349, 356. Schweitzer v. Liberty, 33T. Scotland County v. Hill, 546, 550, Scott V. Crump, 217. Scott V. Davenport, 82, 277. Scott V. Fishblate, 226. Scott V. La Porte, 126, 127, 132, 250, 272. Scott V. Saratoga Springs, 72, 74. Scott V. Watkins, 565. Scott's Ex'rs V. Shreveport, 541. Scovil V. Geddings, 226. Scovill V. Cleveland, 145, 151, 211, 301, 565. Scripture v. Burns, 476. Seaman v. New York, 385. Searing v. Clark, 213. Sears v. Atlantic City, 281. Sears v. Street Com'rs of Boston, 274. Seattle v. Barto, 170. Seattle v. Tyler, 23. Second Ave. M. E. Church, In re, 434. Second Municipality of New Or- leans V. Morgan, 186. Second Ward Sav. Bank v. Huron, 551. Sedgwick County Com'rs v. Bai- ley, 60. Seely v. Pittsburgh, 301. Segars v. Parrott, 510. Seibert v. Lewis, 84, 116, 267. Seibrecht v. New Orleans, 250. Seifert v. Brooklyn, 386. Semple v. Vicksburg, 365, 404, 405. Seton V. Hoyt, 531. Seward v. Orange, 369. Seward v. Wilmington,- 392, 393. Shakespear v. Smith, 581. Shanfelter v. Baltimore, 191. Shankland v. Phillips, 581. Shanklin v. Madison County Com'rs, 512, 513. Shanley v. Brooklyn, 197, 198-. Shannon v. Huron, 423, 424. Shannon v. O'Boyle, 517. Shannon v. Omaha, 278. Shannon vi Portsmouth, 220. CASES .CITED 659 tThe figures refer to pages] Shapleigh v. San Angelo, 58, 60, 71, 84, 118,'" 267, 426. Sharp V. Contra Costa County, 504. Sharp V. New York, 468. Sharp V. Speir. 299. Sharp V. Teese, 255. Sharp's Ex'r y. Dunavan, 447. Sharpless v. Philadelphia, 437, 438, 439, 440, 441, 548. Shartle v. Minneapolis, 350. Shattuck V. Woods, 557. Shaw V. Dennis, 444. Shaw V. Independent School Dist, 551, 554. Shaw V. Jones, 157, 195. Shaw V. Peckett, 461. Shaw V. Pima County, 558. Shea V. Attumwa, 348. Shea V. Muncie, 167. Shearer v. Buckley, 388. Sheboygan County v. Parker, 196, 513. Sheehan v. Good Samaritan Hos- pital, 303. Sheffield School Tp. v. Andress, 239. Sheidley v. Lynch, 517. Shelby v. Alcorn, 196. Shelby County v. Tennessee Cen- tennial Exposition Co., 520, 521. Sheley v. Detroit, 300. Shelton v. Mobile, 346. Shepard v. Easterling, 555. Shepard v. Murray County, 518. Sherbourne v. Yuba County, 499. Sheridan v. Oolvin, 205. Sherry v. Gilmore, 55. Sherwin v. Bugbee, 577. Shields v. Durham, 379, Shipley v. Bolivar, 391. Shippy V. Au Sable, 398. Shiras v. Olinger, 324. Shirk V. Chicago, 345. Shirk V. Pulaski County, 541, 543, 544. Shoe V. Nether Providence, 575. Short V. Gouger, 100. | Sort V. Symmes, 197. Shoup V. Shoup, 481. Shroder v. Lancaster, 170. Shuck V. State, 204. Shugars v. Hamilton, 156, 157. Shuman v. Ft. Wayne, 335. Shumate v. Heman, 284. Sibley v. Mobile, 455. Sidway v. South Park Com'rs, 214. Sievers v. San Francisco, 405, 407. Silva V. Newport, 278. Simmerman v. Wildwood, 160. Simmes v. Chicot County, 535, 537. Simmonds v. Holmes, 340. Simmons, Ex parte, 193. Simmons v. State, 334. Simmons v. Toledo, 489. Simmons v. Wilson, 563. Simmons Medicine Co. v. Ziegen- hein, 443. Simon v. Hoboken, 212, 213, 479. Simon v. Northup, 80, 83, 95, 344. Sims V. Chattanooga, 354. Singleton v. Austin, 579. Sinton v. Ashbury, 96, 345. Sioux City v. Simmons Hardware Co., 175. Sipler V. Clarion County, 556. Skaggs V. Martinsville, 179. Skinker v. Heman, 174, 179. Skinner v. Christie, 460. Slack V. Maysville & L. K. Co., 81. Slattery, Ex parte, 68. Slaughter v. People, 192. Slaughter House Cases, 309, 526. Slauson v. Kacine, 98. Sloan V. State, 142, 145, 147. Slocomb V. Fayetteville, 435. Slocum V. Ocean Grove Camp Meeting Ass'n, 189. Sluder V. St. Louis Transit Co., 165. Small V. Danville, 89, 90. Smathers v. Commissioners of Madison County, 563. Smiley v. MacDonald, 322. 660 CASES. CITED [The figures refer to pages] Smith, Ex parte, 182, 188. Smith, In re, 313. Smith V. Aberdeen Corp., 561. Smith V. Adrian, 145. Smith V. Albany, 263. Smith V. Appleton, 84, 85, 267. Smith V. Board of Sup'rs of Bar- row County, 531. Smith V. Board of Sup'rs of Jones County, 561. Smith V. Cincinnati, 291. Smith V. Clark County, 551. Smith V. Collier, 322. Smith V. commonwealth, 154. Smith V. Crutcher, 49, 62. Smith V. Davis, 395. Smith V. Dedham, 417. Smith V. Farrelly, 468. Smith V. Gould, 401. Smith V. Havemeyer, 385. Smith V. Howell, 434. Smith V. Hurd, 9. Smith V. Inge, 93, 348. Smith V. Kernochen, 143. Smith V. Knoxville, 185, 333. Smith V. Leavenworth, 511. Smith V. McCarthy, 17, 50, 105. Smith v. Malone, 17. Smith V. Mason, 561. Smith V. Milwaukee Builders' & Traders' Exchange, 352. Smith V. Moore, 207. Smith V. Morse, 80. Smith V. Nashville, 321, 526. Smith V. Navasota. 348. Smith V. New Albany, 136. Smith V. Newborn, 421. Smith V. New York, 405, 558. Smith V. People, 108, 111. Smith V. Proctor, 580. Smith V. Riding, 564. Smith V. Rochester, 328. Smith V. Saginaw, 109, 111. Smith V. Seattle, 274. Smith V. Selinsgrove, 382. Smith V. Shawnee County Com'rs, 520. Smith V. Sherry, 71, 101, 102. Smith V. Silver Vajley Min. Co., 7,8. Smith V. Sioux City, 391. Smith .V. Smith, 8, 557. Smith V. Stephan, 234, 265, 275. Smith V. Syracuse, 241. Smith V, Syracuse Imp. Co., 242. Smith V. Westcojtt, 48, 144, 574. Smith V. Westerly, 574. Smith's Case, 113. Smith, to Use of Cushing, v. Washington, 290, 292. Smyrk v. Sharp, 170. Smythe v. Chicago, 286. Snell, In re, 174, 335. Snider v, St. Paul, 376, 379, 471. Snipes v. Winston, 263. Snowden, Ex parte, 178. Snyder v. Albion, 390. Snyder v. Mt. Pulaski, 351. Society for Propagation of Gos- pel v. Pawlet, 52, 61. Somers v. Westcoat, 481. Sommercamp v. Kelley, 156. Somo Lumber Co. v. Lincoln Coun- ty, 117. Soon Hing v. Crowley, 336. Soper V. Henry County, 11, 13, 15, 499, 529. South V. Maryland, 513. south Covington & C. St R. Co. v. Berry, 184, 329. Southern Pac. R. Co. v. Orton, 10. Southern Pac. R. Co. v. Reed, 362. South Highland Land & Imp. Co. V. Kansas City, 369. South Jersey Telegraph Co. v. Woodbury, 166. South Nashville St. R. Co. v. Mor- row, 450. South Omaha v. Cunningham, 395. South Park Com'rs v. Chicago, B. & Q. R. Co., 302. South Park Com'rs v. Dunlevy, 423, 544. South Park Com'rs v. Illinois Trust & Sav. Bank, 278. CASES CITED [The figures refer to pages] 661 South Platte Land Co. v.- Ruffalo Co., 102. Southport V. Ogden, 170. Southwestern Telegraph & Tele- phone Co. V. San Antonio, 445. Southworth v. Flanders, 225. Sower V. Philadelphia, 164, 167, 470. Sowles V. Bailey, 480. Spangler v. San Francisco, 405. Sparks Mfg. Co. v. Newton, 315. Spaulding v. Arnold, 428. Spaulding y. Lowell, 128, 372, 436, 573. Spaulding v. North San Francisco Homestead & R. Ass'n, 285. Speed V. Crawford, 199, 200. Speed V. Detroit, 206, 213, 220. ■ Speer v. Athens, 288, 444. Speer v. Board of Com'rs, 59, 423. Speir V. Brooklyn, 382. Spencer v. Merchant, 295, 297, 448. Spiech V. Tierney, 460. Spiegler v. Chicago, 325. Spilman v. Parkersburg, 415. Spitler V. Young, 188. Spokane Falls v. Browne, 287. Spokane St R. Co. v. Spokane, 346. Sprigg V. Garrett Park, 324. Springfield v. Spence, 364. Springfield Fire & Marine Ins. Co. V. Keeseville, 91, 380, 381. Spring Valley Coal Co. v. Spring Valley, 378. Spring Valley Waterworks v. San Francisco, 17, 222. Spring Valley Waterworks v. Schottler, 5. Squiers v. Neenah, 226. Staats V. Washington, 185, 466. ^tadtler v. School Dist. No. 40, 581. Stamp V. Cass County, 531, 543. Stanchfield v. Newton, 405. Stanfield v. State, 138. Stanislaus County v. Myers, 16. Stanley v. Davenport, 329, 356, 395. Staples V. Bridgeport, 170. Starin v. Genoa, 235. Starkey v. Minneapolis, 237, 243, 536, 539. Starr v. Burlington, 15, 21. State V. Agee, 480. State V. Alice, 47. State V. Anderson, 165. State V. Anderson Coumty, 462, 519. State V. Armstrong, 18, 31, 32, 446. State V. Arnold, 44. State V. Ashland, 299, 563. State V. Atkinson, 368. State V. Babcock, 17, 49, 108,269, 419. State V. Baird, 47. State V. Baltimore & O. R. Co., 78, 79. State V. Barbour, 160. State V. Barker, 72, 74. State V. Barksdale, 491. State V. Berdetta, 343. State V. Bilby, 43, 48. State V. Bingham, 212. State V. Blue, 83, 86. State V. Board of Chosen Free- holders, 517. State V. Board of Com'rs of Ormsby County, 513. State V. Board of Com'rs of Paw- nee County, 509. State V. Board of Com'rs of Wich- ita County, 550. State V. Board of Education, 584. State V. Board of Education of City of Columbus, ,581. State V. Board of Health of City of Newark, 584. State V. Board of Park Com'rs, 134. State v. Board of Regents of Uni- versity of Kansas, 585. State V. Bogard, 138. State V. Brandt, 199. CC2 CASES CITED [The figures refer to pagea] State V. Brinkei-hoff, 218, 219. State V. Bristol, 433, 435, 436. State V. Braatch, 206, 213, 480. State V. Brown, 447. State y. Bruckhauser, 331, State V. Bulkeley, 209. State V. Bunker, 56. State V. Burlington, 375. State V. Butler, 127, 241. State T. Cainan, 189, 331. State V. Canal & C, R. Co., 182. State V. Canterbury, 49. State V. Cantieny, 186, 188, 189. State V. Carpenter, 189. State V. Carr, 61, 216. State V. Carroll, 212, 216. State V. Cassidy, 334, 335. State V. Cederaski, 139, 179. State V. Charleston, 457. State V. Chittenden, 314. State V. Cincinnati, 107, 109. State V. Cincinnati Gaslight & Coke Co., 135, 172, 354. State V. Clark, 46, 185, 337. State V. Clarke, 124, 146, 173, 186, 333. State V. Clayton, 207, 217. State V. Colt, 513. State V. Commissioners of Clin- ton County, 549. State V. Commissioners of Han- cock County, 530. State V. Commissioners of Put- nam County, 65. State V. Censer, 480. State V. Cook, 425, 432. State V. Cornell, 443. State V. Corning, 432. State V. Council, 43. State V. Covington, 75. State V. Cowan, 192. State V. Cram, 68. State V. Culver, 358. State V. Curran, 17, 49. State V. Curry, 205. State V. Curtis, 478. State y. Cuyahoga County, 517. State V. Daniel, 446. State, V. Dawson, 7. State V. Dean, 296. State V. De Gress, 219. State V. Demann, 106, 110. State V. Denny, 15, 16, 21, 72, 73, 74, 75, 90, 138, 143, 200, 373, 561. State V. Dering, 174. State V. Des Moines, 434, 457. State V. Dickie, 159. State V. Dimond, 46. State V. District Court for John- son County, 475. State V. District Court of Henne- pin County, 481. State V. District Court of Ramsey County, 240, 274, 278, 284. State V. District Court of Second Judicial Dist., 481. State V. District of Narragansett, 41. State V. Doherty, 206. State V. Donovan, 45, 221. State V. Dorsey County, 509, 512. State V. Douglas, 195. State V. Dover, 491. State V. Duerr, 578. State V. Duluth, 221, 222. State V. Dunn, 213. State V. Dunson, 113, 117. State V. Dupaquier, 321. State V. Eidson, 103. State V. Elofson, 316. State V. Ernhardt, 331. State V. Eshelby, 206, 216, 217. State V. Eubanks, 178. State V. Evans, 478. State V. Ferguson, 129. State V. Ferris, 62. State V. Flint, 192, 318. State V. Forman, 316. State V. Foster, 160. State V. Fourcade, 180. "■ State V. Freed, 579, 581. State V. Freeman, 130, 185. State V. Fridley Park, 19, 46. State V. Froehlich, 441. State V. Frost, 43. CASES CITED [The figures refer to pages] 663 State V. Fuller, 61. State V. Funk, 263. State V. Gandy, 430. State V. Garibaldi, 133. State V. Gates, 223. State V. George, 1-38, 203, 204. State V. Gilbert, 46, 47. State V. Godfrey, 459. State V. Goowin, 51, 152. State V. Gorhara, 492. State V. Grace, 218. State V. Graves, 311. State V. Gray, 152, 211. State V. Great Falls, 247. State T. Griggshy, 555. State V. Grimes, 383. State V. Haben, 76. State V. H'ager, 135. State V. Haines, 37, 40. State V. Hamilton, 114. State v. Hampton, 80, 86, 568. State V. Hardy, 186. State V. Harris, 46, 54, 55, 56, 62, 478. State V. Harrison, 210. State V. Hauser, 155. State V. Haworth, 86. State V. Hayes, 165. State V. Headlee, 555, 561. State V. Hellman, 185, 337. State V. Henderson, 168. State V. Hibbard, 33.4; State V. Hine, 138. State V. Hoard, 43. State V. Hofif, 573. State V. Holden, 38, 70. State V. Holloway, 46. State V. Hoyt, 160. State V. Hudson County, 492, 499. Stdte V. Humphries, 221. State V. Hunter, 75, 138, 198. State V. Husband, 51, 112. State V. Indianapolis Union K. Co., 323. State V. Ironton Gas Co., 5, 14, 16. State V. Irvin, 316. State V. Itzcovitch, 334. State V. Jacksonville St. R, Co., 69, 91. State V. Jacobs, 152, 565. State V. Jelks, 475. State V. Jennings, 19, 34,- 112, 145. State V. Jersey City, 155, 212, 482. State V. Johnson, 221, 325. State V. Jones, 240, 346. State V. Kansas City, 107. State V. Kantler, 156, 171. State V. Kearns, 209. State V. Keith, 192, 319. State V. Kennedy, 162. State V. Kennelly, 220, 221. State V. Kersten, 213. State V. Kiichli, 150, 195, 201, 220. State V. Kirk, 157, 195, 201. State V. Kolsem, 48, 70, 75, 83, 107, 142, 436. State V. Knoxville, 340. State V. Kraft, 207. State T. Krez, 74. State V. Lake City, 110. State V. Lammers, 46, 48. State V. Lane, 211, 213. State V. Langston, 318. State V. Lawi-ence, 86, 87, State V. Leatherman, 18, 50, 54, 56, 61, 62. State V. Lee, 190. State V. Leischer, 479. State V. Lincoln, 217, 222. State V. Lockwood, 340. State V. Loudon, 491. State V. Luce, 96. State V. Ludwig, 318. State V. McAllister, 203. State V. McCabe, 475. State V. McFadden, 509, 512. State V. McGeary, 204. State V. McGrath, 243. State V. McLean County, 479. State V. McMahon, 325, 334. State V. Madison, 463, 492. State V. Madison St. R. Co., 356. State V. Mahner, 175. 664 CASES CITED [The figures refer to pages] State V. Main, 524. State V. Marion County Com'rs, 239, 535. State V. Martin, 107, 429. State V. -Maysville, 434. State V. Meadows, 114. State V. Medbery, 417. StUte V. Merrill, 130, 140, 331. State V. Miller, 208. State V. Milne, 216. State V. Milwaukee, 15, 463. State V. Minnesota Transfer R. Co., 230, 237, 246, 248, 250, 251, 264. State V. Minnetonka Village, 46, 47. State V. Mitchell, 43. State V. Mobile, 124, 147. State V. Moores, 72, 74, 205. State V. Mote, 19, 42, 46. State V. Mott, 151, 323, 480. State V. Muir, 193, 319. State V. Mulvihill, 199. State V. Murfreesboro, 375, 383, 491. State V. Murray, 204. State V. Nashville, 171, 215. State V. Nelson, 468. State V. New Whatcom, 107. State V. Nichols, 204. State V. Nine Justices, 138. State V. North, 454. State V. Northern -Pac. K. Co., 311. State V. Northup, 64. State V. Noyes, 50. State V. Oakland, 43. State V. Gates, 213. State V. O'Connor, 45, 138. State V. Oleson, 193. State V. Omaha & C. p. Ry. & Bridge Co., 169, 175. State V. O'Neil, 325. State V. Orr, 68, 265. State V. Osawkee Tp., 438. State V. Osborn, 114. State V. Oshkosh, A. & B. W. R. Co., 480. State V. Owen, 333. State V. Palmer, 142. State V. Parker, 446. State V. Parrott, 96. State V. Passaic County Agr. Sec, 491. State V. Payssan, 179, 243. State V. Pender, 68. State V. Peterson, 43, 220. State V. Pillsbury, 281. State V. Pinkerman, 211. State V. Portage City Water Ca, 478. State V. Portland, 375, 492. State V. Pratt, 352, 353. State V. Priester, 160. State V. Proudfit, 336. State V. Puckett, 521. State V. Pugh, 41. State V. Quayle, 415. State V. Quong, 318. State V. Ratterman, 242. State V. Ray, 177. State v.(,Reads, 112, 115. State V. Reis, 298, 300. State V. Robb, 186. State V. Robinson, 177, 214. State T. Ruff, 207. State y. Ruhe, 203. State V. St. Bernard, 244. State V. Savage, 445, 451, 453. State V. School Dist. No. 1, 581. State V. Schram, 207. State V. Seavey, 198, 373. State V. Several Parcels of Land,. 61. State V. Shaw, 561. State V. Shea, 215. State V. Shearman, 220. State V. Sheboygan, 354. State V. Shelbyville Corp., 375,. 491. State V. Sheppard, 328. State V. Sherwood, 473. State V. Simons, 18, 31, 37, 47, 50. State V. Sloan, 356. State V. Smith, 74, 156, 157, 158, 274, 336, 338, 339, 473. State V. Spaude, 143. CASES CITED 665 [The figures refer to pages] State V. Standard Oil Co., 9, State V. Steams', 190. State V. Steunenberg, 17. State V. Stevens, 205, 204. State V. Stormont, 3. State V. Strauss, 175. State V. Streukens, 204. State V. Stuht, 58. State V. Superior, 221. State V. Superior Court of King County, 480. State V. Swearingen, 204. State V. Taft, 324, 386. State V. Tampa Waterworks Co., 129. State V. Tappan, 86, 568, State V. Taylor, 193. State V. Thompson, 220. State V. Thorne, 434. State V. Tipton, 38. State V. Toledo, 142. State V. Tomahawk, 416. State V. Topeka, 332, 340. State V. Tosney, 50, 54. State V. Traders' Bank, 453. State V. Travelers' Ins. Co., 450. State y. Trenton, 179, 180, 184. State V. Trumpf, 204. State V. Tryon, 15, 21, 165. State V. Tweedy, 574. State V. Tyrrell, 335. State V. Ueland, 32. State V. Van Auken, 215'. State V. Van Beek, 204. State V. Van Home, 238. State V. Vanosdal, 159. State V. Wadhams, 206. State V. Waggoner, 113, 114 State V. Walton, 199. State V. Warner, 100. State V. Waxahachie, 51, 99, 101, 102. State V. Webb, 62. State V. Webber, 172, 333. State V. Welch, 130, 185, 192, 331, 337. State V. West Hoboken, 283. State V. Wheatley, 480. State V. Whiteher, 4§1. State V. White, 474. State V. Whitingham, 492. State f. Wilkinson, 342, 343. State V. Williams, 130, 220, 333. State V. Wilmington City Council, 206. State V. Wilson, 114, 148, 209, 210. State V. Winter Park, 43, 47. State V. Woodward, 347. State V. Wordin, 526. State V. Worth, 189. State V. Wright, 209. State V. Yates, 151, State V. Yopp, 345. State V. Young, 35, 54, 62. State Bank v. Clark, 5. Stafe Board of Education v. Aber- deen, 83, 86, 236, 589. State ex inf. Crow v. Fleming, 43, 61, 479. State ex rel. Alderson v. Moeh- lenkamp, 480. State ex rel. Attorney General v. Doherty, 220. State ex rel. Attorney General v. Gill, 481. State ex rel. Attorney General v. Miller, 64. State ex rel. Attorney General v. Page, 205. State ex rel. Attorney General v. Schweickardt^ 67, 92. State ex rel. AuU v. Shortridge, 434. State ex rel. Barber Asphalt Pav. Co. V. New Orleans, 428. State ex rel. Bauman v. Judge of Civil Dist. Court, 223. State ex rel. Beasley v. Young, 42. State ex rel. Board of School Di- rectors V. New Orleans, 81. State ex rel. Bromade v. Judge of Division C, Civil District Court, 480. State ex rel. Brown v. Westport, 43. 666 CASES CITED [The figures refer to pages] State ex rel. Cameron v. Shan- non, 199. State ex i-el. Campbell v. Police Com'rs, 220. ' State ex rel. Cbouteau v. LeflSng- well, 15, 274. State ex rel. City of Carthage v. Cowgill & Hill Mill. Co., 154, 158. State ex rel. Clement v. Stokes, 223. State ex rel. Crow v. Harrison, 481. State ex rel. Crow v. St. Louis, 427. State ex rel. Cullen v. Carr, 216. State ex rel. Deering v. Berkeley, 205. State ex rel. Dome v. Wilcox, 17, 50. State ex rel. Foy v. New Orleans, 474. State ex rel. Garth v. Rassieur, 443. State ex rel. Garth v. Switzler, 443. State ex rel. Hawes v. Mason, 74, 81. State ex rel. Hernandez v. Flan- ders, 60. State ex rel. Hopper v. Cottengin, 462. State ex rel. Hull v. Gray, 207. State ex rel. Jackson v. Mansfield, 43, 479. State ex rel. Johnston v. Badger, 213. State ex rel. Kane v. Johnson, 205. State ex rel. Kansas City, St. 3. & C. B. R. Co. V. Severance, 148, 460. State ex rel. Kuhlman v. Rost, 207. State ex rel. Laclede Gaslight Co. V. Murphy, 96. State ex rel. Lee y. Jenkins, 42. State ex rel. Livesay t. Harrison, 545. State ex rel. Lynn v. Board of , Education of City of St. Louis, 76. State ex rel. McMahon v. New Or- leans, 220. State ex rel. Marchand v. New Orleans, 77, 84. State ex rel. Martin v. Wofford, 64. State ex rel. Moulin v. New Or- leans, 476. State ex rel. National Subway Co. V. St. Louis, 355. State ex rel. New Orleans & C. R. Light & Power Co. v. St. Paul, 475. State ex. rel. North Missouri C. R. Co. V. Linn County Court, 565. State ex rel. Paquet v. Fernandez, 336. State ex rel. Patterson v. McRey- nolds, 47. State ex rel. Rudy v. Tomkies, 480. State ex rel. Saunders y. Kohnke, 199. State ex rel. Scott v. Lichte, 47. State ex rel. Stewart v. Police Jury of Jefferson Parish, 455. State ex rel. Sutton v. Wiethaupt, 42. State ex rel. Thomas v. Williams, 203, 205. State ex rel. Town of Jennings V. Miller, 480. State ex rel. Turner v. FitzgeraJd, 222. State ex rel. Vail v. Clark, 217, 558. State ex rel. Van Buskirk v. Boecker, 207. State ex rel. Waring v. Mbbile, 124. State ex rel. Warmoth v. Graham, 218. CASES CITED [The figures refer to pages] 667 State ex rel. White v. Clay Coun- ty, 462. State ex rel. White v. Small, 46, 47. State ex rel. Wingate v. Valle, 74. State ex rel. Wyatt v. Ashbrook, 77. State of Indiana v. Woram, 22. State of Kentucky v. Dennison, 472. State of Maryland v. Baltimore & O. R. Co., 79. State on Petition of. Taylor v. St. Louis County Court, 450. State, to Use of Board of Educa- tion of Cape Girardeau, v. Tie- demann, 578. State, to Use of Neal, v. Saline County Court, 535, 543. Stebbins v. Jennings, 52, 123. Stebbins v. Keene Tp., 399. Stebbins v. Perry County, 551. Stedman v. Berlin, 417. Stedman v. San Francisco, 137. Steel V. Burgess, etc., of Borough of Huntington, 350. Steele v. Dunham, 225. Steele v. Municipal Signal Co., 486. Steele v. Willis, 477. Steele County v. Erskine, 548. Steenerson v. Fontaine, 164. Stein V. Lafayette, 292. Steiner v. Polk County, 540. Steines v. Franklin County, 530, 547, 548, 549. Steinmuller v. Kansas City, 280. Stembel v. Bell, 43. Stephan v. Daniels, 468. Stephani v. Manitowoc, 231. Stern v. Fargo, 127. Sterling v. West Feliciana, 513. Sterling Gas Co. v. Higby, 516. Stetson V. Kempton, 250, 312, 313, 434, 495, '564, 571, 572. Steubenville v. Culp, 217, 557, 558. Stevens v. Campbell, 579. Stevens v. Carter, 474. Stevens v. Dudley, 228, Stevens v. Miller, 474. Stevens v. Muskegon, 383, 403. Stevenson v. Bay City, 167, 199. Stevenson v. Chattanooga, 349. Stewart v. Chicago General St. R. Co., 362. Stewart v. Maple, 561. Stewart v. New Orleans, 316, 341, 377. Stewart v. Otoe County, 517. Stewart v. Roberts, 518. Stewart v. Southard, 226. Stiffler v. Board of Com'rs of Del- aware County, 215. Stiles v. Lambertville, 158. Stilz V. Indianapolis, 101, 102. Stinson v. Smith, 299. Stock V. Boston, 385, 404. Stockdale v. Rio Grande Western R. Co., 356. Stockwell V. Genesee Sup'rs, 215. Stoddard v. Saratoga Springs, 405, 406, 409. Stokes V. State, 565. Stone V. Bevans, 198.. Stone V. Charlestown, 111, 511. Stone V. Chicago, 417. Stone V. Elliott, 550. Stone V. Langworthy, 350. Stone V. Mississippi, 309. Storer Post No. 1, G. A. R., v. Page, 477. Storey v. Murphy, 516, 537. Stormfeltz v. Manor Turnpike Co., 96, 344. Storrs V. Utica, 394. Story V. New York El. R. Co., 359. Story's Case, 359. Stout V. Gleu Ridge, 495. Stout V. St. Louis, I. M. & S. R. Co., 46. Stoutenburgh v. Henniek, 29, 33. Stowe V. Flagg, 2. Stowell V. Board of Public Works for City of New Bedford, 293. Strahan v. Malvern, 252. Strahl, Ex parte, 118. 668 CASES CITED [The figures refer to pages] Strand, In re, 108. Stratton v. Allen, 269. Strauss v. Pontiac, 63, 69. Straw V. Han-is, 146. Street v. New Orleans, 320. Strenna v. Montgomery, 306. , Strong V. District of Columbia, 154. Strong V. Stevens Point, 402. Strosser v. Ft. Wayne, 100, 104. Stroud V. Stevens Point, 108. Stuart V. Easton, 519. Stuart V. Ellsworth, 152. Stuart V. Havens, 352. Stuart V. Palmer, 295, 298. Stubbs V. Lee, 219. Stuhr V. Curran, 559. Sturges V. Carter, 450. Sturmer v. County Court of Ran- dolph County, 490. Sturtevants v. Alton, 277. Sullivan, In re, 209. Sullivan v. Gilroy, 208. Sullivan v. Haacke, 557. Sullivan v. Helena, 388. Sullivan v. Leadville, 237, 244, 285, 429. Sullivan v. School Dist. No. 39, 579. Summers v. Daviess County, 378. Sunderland v. Martin, 305. Sun Printing & Publishing Ass'n V. New York, 235. Supervisors of Marshall County V. Cook, 543, 551. Sutjherland-Innes Co. v. Evart, 246, 438. Sutton V. McConnell, 190. Sutton V. Snohomish,. 347. Sutton's Hospital, "Case of, 468. Swackhamer v. Hackettstown, 269, 419, 541. Swain v. Comstock, 61. Swain v. Fulmer, 301. Swan V. Indianola, 135, 136. Swanson v. Ottumwa, 415. Sweeney v. Butte, 399. Sweeney v. Newport, 388. Sweeny v. Mayhew, 481. Sweet V. Carver County Com'rs,. 430. Sweetser v. Hay, 465. Swift V. Newport, 561. Swift V. People, 166. Swift V. Topeka, 140. Swindell v. State, 166. Sykes v. ColumbuSj 548. Syracuse Water Co. v. Syracuse,. 252. Taber v. Grafmiller, 302, 342. Taber v. New Bedford, 279. Taft V. Pittsford, 430. Tainter v. Worcester, 380. Talbot V. Hudson, 438. Talbot County Com'rs v. Queea Anne's County Com'rs, 13, 15^ 494, 529. Talbot Pav. Co. v. Detroit, 243,. 244, 477. Talbott V. IbervUle Parish, 514,. 515. Tallman v. Janesville, 458. Tallon V. Hoboken, 356. Talty V. Atlantic, 396. Tanner v. Auburn, 247. Tappan v. Merchants' Nat. Bank,. 450. Tarbutton v. Tennille, 382. Tate V. Greensboro, 226. Tatlock V. Louisa County, 516^ 535, 537. Taxpayers & Freeholders of Vil- lage of Plattsburgh, In re, 455. Taylor v. Austin, 365, 404. Taylor v. Ballard, 396. Taylor v. Board of Health of City of Philadelphia, 202. Taylor v. Carondelet, 15, 21, 487. Taylor v. Chandler, 299, 300, 301,^ 328, 444, 565. Taylor v. Davey, 555. Taylor v. Donner, 434. Taylor v. Ft. Wayne, 19, 102, 104. Taylor v. Griswold, 124, 176. CASES CITED 669 [The figures refer to pages] Taylor v. Henry, 162. Taylor v. Lake Shore & M. S. R. Co., 328. Taylor v. Lambertville, 164, 539. Taylor v. McFadden, 280. Taylor v. Marion County, 555, 560. Taylor t. Nashville & C. R. Co., 309. Taylor v. Newberne, 17, 49, 51. Taylor v. New York, 521. Taylor v. Owensboro, 378. Taylor v. Palmer, 306. Taylor v. Patton, 272, 281. Taylor v. Peckham, 389. Taylor T. Pine Bluff, 339. Taylor v, Plymouth, 317, 328. Taylor v. Portsmouth, K. & Y. St. Ry., 354. Taylor v. Postal Telegraph & Cable Co., 336. Taylor v. Robinson, 79. Taylor v. St. Louis, 291, 361. Taylor v. Salt Lake County' Court, 504. Taylor v. Sandersville, 319. Taylor v. School Dist., 578. Taylor v. Sullivan, 205. Taylor v. Waverly, 447. Taylor County v. Standley, 516. Tazewell County Sup'rs v. Daven- port, 450. Teass v. St Albans, 353. Temple v. Sumner, 334, 336. Ten Eyck v. Delaware & R. Canal Co., 6, 11. Terhune v. Passaic, 239. Terrel v. Wheeler, 79. Terrett v. Taylor, 90, 93. Territory v. Crum, 475. Territory v. Guyott, 23. Territory v. Hopkins, 546. Territory v. Jacobs, 209. Territory v. Smith, 203. Territory v. Stewart, 18, 31. Terry v. Richmond, 383. . Texarkana v. Leach, 347. Texarkana & Ft. S. R. Co. v. Tex- as & N. O. R. Co., 356. Texas v. White, 21. Texas & P. R. Co. v. Walker, 513. Textor v. Baltimore & O. R. Co., 356. Thatcher v. Toledo, 166. Thayer v. Boston, 384. Thayer v. McGee, 517, Thellan v. Porter, 190, 340. Theobmd v. Louisville, N. O. & T. R. Co., 361. Third Municipality of New Or- leans V. Ursuline Nuns, 134. Thomas v. Ashland, 17. Thomas v. Boonville, 278. Thomas v. Burlington, 467. Thomas v. Dakin, 10, 53. - Thomas v. Gain, 300. Thomas v. Leland, 79, 83, 85, 95, 444. Thomas v. Mason, 315, 526. Thomas v. Owens, 203. Thomas v. Port Huron, 246, 254, 260, 269, 541, Thomas v. Richmond, 38, 235, 250, 255, 264, 430, 538. Thomas v. Sorrell, 492. Thomas v. West Jersey R. Co., 256. Thomason v. Ashworth, 124, 143. Thomasson v. State, 337. Thompson v. Abbott, 106, 107, 111. Thompson v. Board of Trustees of City of Alameda, 134. Thompson v. Carroll, 171. Thompson v. Jackson, 226. Thompson v. Lee County, 542, 543, 564, 565. Thompson v. Millen, . 332. * Thompson v. Nicholson, 207. Thompson v. Ocean Grove Camp Meeting Ass'n, 173. Thompson v. Schermerhorn, 18, 133, 155. Thompson v. State, 43. Thompson v. Stickney, 229. Thomson v. Booneville, 457. Thomson v. Elton, 253. 670 CASES CITED [Tile figures refer to pages] Thomson v. Union P. R. Co., 11, 33. Thomson-Houston Electric Co. v. Newton, 280. Thorpe v. Rutland & B. R. Co., 34, 309. Thunborg v. Pueblo, 395. 9:hurston v. Hancock, 361. Thurston v. Huston, 159." Thurston v. Little, 565. Tlce V. Bay City, 391. Tice V. Mayfield, 79. Tide-Water Co. v. Coster, 523. Tierney v. Dodge, 142. Tilford V. Olathe, 104. Tillman v. People, 370. Tilly V. Mitchell & Lewis Co., 352. Times Pub. Co. v. Weatherby, 236, 238. Tindley v. Salem, 404. Tinsman v. Belvidere Delaware R. Co., 6, 14. Tippecanoe County v. Lucas, 555, 567. Tissot V. Great Southern Tele- graph & Telephone Co., 323. Titler v. Iowa County, 499. Todd V. Birdsall, 495. Todd V. Laurens, 416. Todd V. Pittsburg, Ft. W. & O. R. Co., 348. Toledo, W. & W. R. Co. v. Jack- sonville, 182, 329. ToUefson v. Ottawa, 378. Tomlin v. Cape May, 155. Toney v. Mapon, 98, 100, 109, 174. Torreiit v. Muskegon, 127, 370, 372., Towers Excelsior & Ginnery Co. v. Inman, 250. Towle V. Nesmith, 483. Town Council of Summeryille v. Pressley, 321. Town of Areata v. Areata & M. R. R. Co., 344. Town of Belolt v. Morgan, 81. Town of Bennington v. Smith, 346. Town of Bloomfield v. Charter Oak Nat. Bank, 495, 496, 572, 575. Town of Bloomfield v. Trimble, 193, 318, 331. Town of Bristol v. Burrow, 190. Town of Brookville v. Gagle, 340, 466. Town of Castleton v. Langdon, 469. Town of Chattanooga v. State, 383, 491. Town of Cicero v. Chicago, 70, 98, 102. Town of Cicero v. People, 473. Town of Cicero v. 'Williamson, 104. Town of Clarksdale v. Broaddus, 489. Town of Coloma v. Eaves, 546,/ 552. Town of Columbia v. Beasly, 456. Town of Constitution v. Chestnut Hill Cemetery Ass'n, 58, 61. Town of Cordova v. Le Sueur, 584. Town of Crowley v. Rucker, 338. Town of Crowley v. West, 324. Town of Danville v. Shelton, 454. Town of Davis v. Davis, 324. Town of Decorah v. Bullis, 45, 151, 152, 211. Town of Decorah v. Dunstan, 335. Town of Decorah v. Gillis, 61. Town of Dixon v. Mayes, 447. Town of Douglass v. Niantic Sav. Bank, 547. Town of Drummer v. Cox, 276, 434. Town of Durango v. Pennington, 239. Town of Eastchester, Matter of, 427. Town of East Hartford v. Hart- _ ford -Bridge Co., 143. Town of Edenville v. Chicago, M. & St. P. R. Co., 348. Town of Enfield v. Jordan, 550. CASES CITED C71 [The figures reler to pages] Town of Enterprise v. State, 47, 57, 101. Town of Essex v. Day, 483. Town of Franklin v. House, 391. Town of Franklin v. Maberry, 300. Town of Freeport v. Board of Sup'rs of Stephenson County, 494, 510. Town of Frostburg v. Hitchins, 292. Town of Geneva v. Cole, 460, 466. Town of Gower v. Agee, 140. Town of Granby v. Thurston, 145, 495. Town of Greensboro v. Ehren- reich, 173, 275, 321, 324, 526. Town of Guilfprd v. Board of Sup'rs of Chenango County, 80, 568. Town of Guilford v. Cornell, 86, 87. Town of Henderson v. Davis, 61. Town of Homer v. Blackburn, 331. Town of Humboldt v. Barnesville, 66, 110, 111. Town of Huntsville- v. Phelps, 189. Town of Kirkwood v. Meramec Highlands Co., 187, 258. Town of La Grange v. Overstreet, 136. Town of Latonia v. Hopkins, 447. Town of Lewiston v. Proctor, 190. Town of Lisbon v. Clark, 166, 167. Town of Ix)ndonderry v. Andover, 55. Town of Macon v. Patty, 277, 278, ~ 296, 297, 306, 448. Town of Madison v. Newsome, 237. Town of Marietta v. Fearing, 170, 177. Town of Middletown v. Berlin, 565. Town of Milwaukee v. Milwaukee, 109, 110. Town of Montpelier v. East Mont- pelier, 16, 81, 112, 145. Town of Mt. Pleasant v. Beck- with, 70, 82, 105, 107, 111, 116, 267, 487. Town of New Boston v. Dunbar- ton, 19, 30, 33, 55, 56. Town of New Castle v. Lake Erie & W. R. Co., 356. Town of New Decatur v. Berry, 287. Town of Newport v. Batesville & B. Ry. Co., 128. Town of Nome v. Lang, 307. Town of Norman v. Teel, 350. Town of North Hempstead v. Hempstead, 14, 110, 494. Town of Ocean Springs v. Green, 165. Town of Oregon v. Jennings, 576. Town of Ottawa v. Walker, 489. Town of Pana v. Bowler, 546. Town of Petersburg v. Mappin, 266. Town of Plymouth v. Painter, 210. Town of Rosedale v. Ha;iner, 318. Town of Roswell v. Ezzard, 99. Town of Rushville v. Adams, 395. Town of Sanbomton v. Tilton, 109. Town of Searcy v. Tarnell, 61. Town of South Portland v. Cape Elizabeth, 110. Town of State Center v. Baren- stein, 131, 177, 180, 335. Town of Stillwater v. Moor, 168. Town of Suffleld v. Hathaway, 321. Town of Suffolk v. Parker, 383, 470. Town of Tipton v. Norman, 191. Town of Tumwater v. Hardt, 207. Town of Union v. Crawford, 499. Town of Union Mines, In re, 43. Town of Washington v. Ham- mond, 320. Town of Watervliet v. Colonie, 66. 672 CASES CITED [The figures refer to pages] Town of Winamac v. Huddleston, 489. Town of Woodbury v. Brown, 37. Townsend v. Epstein, 343, 351, 360, 363, 490. Townsend v. Greeley, 468. Township of Bloomfield v. Glen Ridge, 109. Township of Darby v. Lansdowne, 66. Township of Doon Dist v. Cum- mins, 416. Township of Garfield v. Tinnup, 510. Township of Hartford v. Bennett, 207. Township of Hanover Tp. v. Grant, 581. Township of Pepin v. Sage, 115. Township of Salamanca v. Jasper County, 430. Train v. Boston Disinfecting Co., 322. Trainor v. Board, 220. Trainor v. Board of Auditors, 197, 220, 231. Trammell v. Russellville, 382. Trapp V. Newport, 243. Travelers' Ins. Co. v. Denver, 423, 431. Travelers' Ins. Co. v. Oswego Tp., 196. Traynor v. Beckham, 472, 475. Trenton Horse R. Co. v. Trenton, 165. Trigally v. Memphis, 21, 165. Tripp V. Yankton, 147. Trites v. Hitchcock County, 555. Trott V. Warren, 55. Trowbridge v. Hudson, 243. Trowbridge v. Schmidt, 430. Truax v. Pool, 101. True v. Davis, 100, l05, 107. Truman v. San Francisco, 158. Trustees v. White, 429. Trustees, etc., of Town of South- ampton V. Mecox Bay Oyster Co., 92. Trustees of Alabama University v. Moody, 239. Trustees of Belleview v. Hohn, 237, 238. Trustees of Brie Academy v. Erie, 167. Trustees of Hazelgreen v. Me- Nabb, 163. Trustees of Illinois & M. Canal v. Chicago, 303. Trustees of Ministerial & School Fund in Levant v. Parks, 53, 122. Trustees of School Dist. No. 1 v. Jameson, 455. Trustees of Schools v. Board of School Inspectors of City of Peoria, 108. Trustees of Schools v. Tatman, 81, 93. Trustees of Schools of Tp. 24 v. Trustees of Schools of Tp. 25, 580. Trustees of Town of Catlettsburg V. Kinner, 276. Trustees of Vernon Soc. v. Hills, 151, 152. Tucker v. Justices of Iredell County, 231. Tucker v. Virginia City, 259, 467. Tufts V. Chester, 259. Tugman v. Chicago, 316. TuUock V. Webster County, 541. Turner v. Clark County, 465. Turner v. Guthrie, 431. Turner v. Hutchinson, 157. Turner v. Maryland, 339. Turner v. Newburgh, 390. Tuthill V. New York, 512. Twist V. Rochester, 390. Twyman's Adm'rs v. Board 6f Council of Frankfort, 378. Tyler v. Beacher, 439. Tyrrell v. Jersey City, 221. Tyson v. School Directors of Hali- fax Tp., 440. GASES CITED 6T3 [The figures refer to pages] u Olman v. Baltimore, 298, 300. Qncas Nat Bank v. Superior, 269, 422. Dnderhill v. Manchester, 378. Dnion Bank v. Jacobs, 504. Union Bank of Richmond v. Ox- ford, 476. Qnion Coal Co. v. La Salle, 469. Union County v. Knox County, 510. Union Depot & R. Co. v. Smith, 150, 201. Union Pac. R. Co. v. Cheyenne, 148. Union Pac. R. Co. v. Kansas City, 103, 104. United New Jersey Railroad Can- al Co. V. National Docks & N. J. J. Connecting R. Co., 236. United States v. Alexander, 212. United States v. Baltimore & O. R. Co., 16, 80. United States v. Brindle, 198. , United States v. Capdevielle, 438. United States v. Church of Jesus Christ of Latter-Day Saints, 34. United States v. Green, 217. United States v. Hartwell, 196. United States v. Home Ins. Co., 18. United States v. Jones, 523. United States v. Lawrence, 223. United States v. Mobile, 147. United States v. New Orleans, 435, 469. United States v. Railroad Co., 87, 91. ' United States v. Treasurer of Muscatine County, 267. United States v. Wright, 207. United States Bank v. Dandrige, 539. United States Brewing Co. v. Stoltenberg, 328. United States ex rel. Brown v. Memphis, 60, 138, 199, 223, 509. COOL.MUN.CORP. — 43 United States ex rel. Carhart v. Miller County, 544. United States ex rel. Crawford v. Addison, 195. United States ex rel. Holzendorf V. Hay, 475. United States ex rel. Huidekoper V. Macon County, 477. United States ex rel. Mutual DIst Messenger Co. v. Wright, 478. United States ex rel. Banger v. New Orleans, 435. United States ex reU West v. Hitchcock, 472. United States ex rel. WolfC v. New Orleans^ 76, 77, 82, 84, 436, 455. United States Water Works Co. v. Du Bois, 254, 266. Upton V. Hansbrough, 62. Urtel V. Flint, 3^1. Utter V. Franklin, 548. Vacation of Henry St., 147. Vaeheron v. New York, 516. Vail V. Amenia, 575i Valley County v. McLean, 551, 553. Van Buren v. Wells, 331. Vance v. Little Rock, 60, 82, 299, 434. Vanderbeck v. Jersey City, 306. Vanderbilt v. Adams, 523. Van der Leith v. State, 170. Vandine, In re, 69, 322. Van Hook v. Selma, 20, 140. Vanhorn v. Des Moines, 380. Van Ness v. Washington, 368. Van O'Linda v. Lothrop, 363. Vanover v. Davis, 370, 562. Van Wagoner v. PateJrson, 365. Varner v. Noblesborough, 423, 430. Vason V. Augusta, 320, 322. Vasser v. George, 86, 568. Vaughan v. Johnson, 206, 207. Venable v. Curd, 210. 674 CASES CITED [The figures refer to pages] Vernon t. Board of Sup'rs of San Bernardino County, 43. Vestal V. Little Rock, 101, 102, 103, 104. Vicksburg v. Vlcksburg Water- works Co., 276. Vidal V. Girard's Ex'rs, 483. Village of Arapahoe v. Albee, 58. Village of Belknap v. Miller, 161. Village of Bellevue v. Bellevue Inip. Co., 347. I Village of Biron, In re, 47. Village of Buffalo v. Harling, 465. Village of Buffalo v. Webster, 63, 69. Village of Carthage v. Frederick, 275, 309. Village of Chester v. Leonard, 254. ViUage of Dwight v. Palmer, 262. Village of Elba, In re, 48. Village of Evanston v. Fitzgerald, 399. Village of Fairmont v. Meyer, 313. Village of Fulton v. Tucker, 361. Village of Gloversville v. Howell, 165. Village of Hampton v. Chicago, M. & St. P. R. Co., 316. Village of Hartington v. Luge, 103. Village of Ho v. Ramey, 42, 48. Village of Itasca v. Schroeder, 490. Village of Kenmore, In re, 127. Village of Kent v. Dlthridge & Smith Cut-Glass Co., 234. Village of London Mills v. Fair- view London Telephone Circuit, 354. Village of Marseilles v. Howland, 342, 402. Village of Morgan Park v. Wis- wall, 274, 284, 299. Village of North Springfield v. Springfield, 107, 111. Village of Norwood v. Baker, 299, 445. Village of Oquawka v. Graves, 269. Village of Pillager v. Hewett, 254, 260. Village of Platteville v. Bell, 130. Village of Princeville v. Auten, 347, 490. Village of Reed aty v. Reed City Veneer & Panel Works, 256. Village of Bidgefleld Park, In re, 30, 31. Village of St. Johnsbury v. Thomp- son, 63, 146, 165. Village of Shelby v. Clagett, 388, 392. Village of Sheridan v. Hibbard, 468. Village of Syracuse v. Mapes, 105. Village of Winnetka v. Chicago & M. Electric R. Co., 359. Village of Winnetka v. Prouty, 348, 349. Village of Wykoff v. Healey, 187. Villavaso v. Barthet, 171, 172. Vincennes 'University v. Indiana, 23, 33. Vionet v. First Municipality, 311. Vogel V. Little Rock, 101, 102, 103, 104, 111. Vogel v. State, 204. Von Hoffman v. Quincy, 76, 78, 84, 91, 426, 436. Von Phul v. Hammer, 17. Voorhies v. Houston, 481. W Wabash R. Co. v. Defiance, 251, 278, 353. Wabaska Electric Co. v. Wymore, 410. Wade V. Richmond, 98, 100, 105, 489, 509. Wadleigh v. Gilman, 325, 326. Wagner v. Garrett, 185. Wagner v. Harris, 35. Wagner v. Rock Island, 16, 90, 92. Waitz V. Ormsby Coun^, 538, 555, 556. Wakefield v. Newell, 382. Wakeling v. Cocker, 353. CASES CITED [The figures reler to pages] 675 Waldraven v. Memphis, 213. Wallsh V. Milwaukee, 291. Walker v. Aurora, 365. Walker v. Chicago, 285, Walker v. Ferrill, 210. Walker v. Jameson, 132. Walker v. Reidsville, 393. Walker v. Towle, 340. Walker v. Wantland, 480. Walkley v. Muscatine, 463. Wall V. Monroe County, 544. Wall V. Trumbull, 226. Wallace v. Board of Trustees of Sharon Tp., 124, 142, 146. Wallace t. Tipton County, 515. Walla Walla v. Walla Walla Wa- ter Co., 416. Walls V. Jersey City, 481. Wain's Heirs v. Philadelphia, 168, 169. Walsh v. Matthews, 300. Walsh V. Scranton, 294. Walter, In re, 301. Walters v. Exeter, 390. Walters v. Ottawa, 86. Waltman v. Riind, 348. Wamesit Power Co. v. Allen, 225. Wanamaker v. Rochester, 408. Ward T. Farwell, 334. Ward V. Gradin, 58, 61. Ward V. Greeneville, 175. Ward V. Hartford County, 500, 503, 504, 528, 529. Ward V. Little Rock, 323. Ward V. Marshall, 216, 559. Ward T. Murphysboro, 326. Ward V. Piper, 135. Ward T. Washington, 317. Ware v. Rutherford, 282. Waring v. Catawba Co., 9. Warmolts v. Keegan, 223, 472. Warner v. Beers, 10. Warner v. Coatesvllle Borough, 152. Warner v. Holyoke, 358. Warner v. Mower, 158. Warner y. New Orleans, 254. Warren v. Charlestown, 17, 40, 49, 107, 496, 572. Warren V. Chicago, 302. Warren v. Grand Haven, 301. Warren v. Lyons, 349. Warren v. Street Com'rs of City of Boston, 241, 242. Warren County v. Nail, 446. Warren County Agr. Joint Stock Co. V. Barr, 517, 521. Wartman v. Philadelphia, 338, 339, 525. Washburn v. Chicago, 281. Washburn Memorial Orphan Asy- lum V. State, 303. Washburn Waterworks Co. v. Washburn, 66, 107, 117, 118. Washington v. Lynch, 332. Washington v. Nashville, 329. Washington Ave., In re, 438, 445. Washington County v. Miller, 565. Washington Female Seminary v. Washington Borough, 254. Washington Southern R. Co. v. Lacey, 183. Waterman v. Mayor, 214. Waters v. Bonvouloir, 427. Waters v. Leech, 131, 182. Waters v. Townsend, 340. Watkins v. Walker County, 528. Watson V. De Witt County, 548. Watson V. Fairmont & S. R. Co., 355. Watson V. Huron, 419, 423. Watson v. Kingston, 291. Watson V. New York, 349. Watson T. Pamlico County Com'rs, 111. Watt V. Jones, 191. Waugh V. Leech, 348. Wayne County v. Detroit, 539. Wayne County v. Reynolds, 556. W. C. Peacock & Co. v. Pratt, 453. Weaver v. Cherry, 51. Weaver v. Devendorf, 225. Webb v. Beaufort, 460. Webb V. Demopolis, 353, Webb V. Mayor, 90. 676 CASES CITED [The figures refer to pages] ,Webb r. New York, 16, 71, 92. Weber v. Dillon, 415. Webster v. Chicago, 276, 473. Webster v. Douglas County, 430, 489. Webster v. Harwlnton, 83, 495. Weed y. Boston, 20. Weed V. Greenwicb, 499. Weeks V. Milwaukee, 442, 454. Weeping Water v. Reed, 469. Wehn V. Gage County Com'rs, 13. Weidman v. New York, 403. Weigand v. District of Columbia, 179. Weightman v. Washington, 389. Weightman v. Washington Corp., 499. Weinstein v. Terre Haute, 394. Weir V. St. Paul, S. & T. F. R. Co., 524. Weirs v. Jones County, 402. Weis V. Madison, 364. Weismer v. Douglas, 438, 439, 440, ' 548, 565. Weitz V. Independent Dist. of Des Moines, 578, 579. Welch V. Boston, 68. Welch V. Hotchkiss, 317. Welch V. Post, 235. Welch y. Ste. Genevieve, 113, 152. Welker v. Potter, 287. Wellington, In re, 476. ' Wells V. Atlanta, 234, 266, 275. Wells V. Burbank, 123. Wells V. McLaughlin, 346. Wells V. Pontotoc County, 517, 521, 547, 548. Wells V. Salina, 419. Wells V. Savannah, 434. Wells V. Sioux Falls, 416. Wells V. Weston, 448, 560. Welsh, Appeal of, 481. Welsh V. Rutland, 376, 380, 383, 389, 472. Welter v. St. Paul, 388. Wenner v. Smith, 558. Wentink v. Board of Chosen Free- holders of Passaic County, 260. Wenzlick v. McCotter, 361. Wesson v. Saline County, 546. West V. Bancroft, 359. West V. Berry, 83, 262, 263. West V. Blake, 346. West V. Utica; 487. West V. Whitaker, 458, 562, 564. Westberg v. Kansas City, 216, 558. Westbrook v. Middlecoff, 255. West Chicago Park Com'rs v. McMuUen, 69. West End v. State, 42. Westerhaven v. Olive, 163. Western College of Homeopathic Medicine v. Cleveland, 89, 90, 250, 378. Western Sav. Fund Soc. v. Phila- delphia, 90, 234, 385. Western Town-Lot Co. v. Lane, 424. Western Union Tel. Co. v. Hop- kins, 95. Western Union Tel. Co. v. Mayer, 437. Western Union Tel. Co. v. New York, 355. West Jersey Traction Co. v. Board of Public Works of City of Cam- den, 198. Westlake & Button v. St. Louis, 468. Westminster Water Co. v. West- minster, 248, 251. Weston v. Charleston, 437. West Philadelphia Title & Trust Co. V. Olympia, 423. West River Bridge Co. v. Dix, 524. Wetmore v. Board of Education of City of St. Louis, 579. Wetmore v. Chicago, 286. Wetzell V, Paducah, 421. Weymouth & B. Fire District v. Norfolk County Com'rs, 81. Wharton v. Greensboro, 70. Wharton v. School Directors of Cass Tp„ 577. Wheeler v. Cincinnati, 380, 471. CASES CITED [The figures refer to pages] 677 Wheeler v. Commonwealth, 159, 206. Wheeler v. Plymouth, 382. Wheeler v. Sault Ste Marie, 252. Whipple V. Fair Haven, 386. Whipple V; Henderson, 205. Whitaker v. Topeka, 216. White V. Atlanta, 109. White V. Bayonne, 301. White V. Board of Com'rs of Sul- livan County, 378. White V. Charleston, 328, 50O, 570. White V. Clarksville, 162. White V. Commissioners of Chow- an, 13, 528. White V. Decatur, 427. White V. Kent, 336, 346. White V. McKeesport, 276. White V. New Orleans, 239. White V. New York, 209. White V. People, 300. White V. Polk County, 214. White V. Quanah, 58, 118. White V. Saginaw, 282, 301. White V. St. Louis & S. F. R. Co., 183. White V. School Dlst, 578, 579. White V. Stevens, 287. Whitehead v. Board of Education of City of Detroit, 202. Whitehead v. Manor Borough, 294. Whitfield V. CarroUton, 385. Whitfield V. Longest, 332, 469. Whitfield V. Meridian', 388, 392. Whitfield v. Paris, 378, 379. Whiting v. Quackenbush, 300. Whiting V. Sheboygan & F. du L. R. Co., 6. Whiting V. West Point, 125, 434. Whitmier & Filbrick Co. v. Buffa- lo, 330.' Whitney v. Hudson, 160. Whitney v. New Haven, 134, 155, 157, 429. Whitney v. New York, 134. Whitney v. Port Huron, 167. Whitney v. Ticonderoga, 395. Whitsoh v. Franklin, 328. Whitworth v. Webb City, 278, 279.. Whyte V. Nashville, 155, 175* 278, 300. Wiegel V. Pulaski County, 530. WIggin V. Lewiston, 142. Wiggin V. New Xork, 284. Wiggin V. St Louis, 396. Wiggins V. Chicago, 335. Wilbur V. Springfield, 300, 301. Wilcox, Ex parte, 175. Wilcox V. Chicago, 380. Wilcox V. Ellis, 450. Wilcox v., Hemming, 186. Wilcox V. People, 221. Wild V. Deig, 162. Wild V. Paterson, 388, 491. Wild V. People, 101, 103. Wilder v. Cincinnati, 300. Wilder v. East St. Louis, 80. Wiley V. BlufCton, 144. Wiley V. Corporatiop of Bluffton, 124. Wiley V. Parmer; 454. Wilhelm v. Cedar County, 540. Wilkes V. Dinsman, 226. Wilkey v. Pekin, 448. Wilkie V. Chicago, 335. Wilkins v. Detroit, 296. Wilkinson v. Cheatham^. 438. Wilkinson v. Peru, 551. Willard v. Albertson, 61, 289. Willard v. Newburyport, 573. Willard V. Pike, 446. Willett V. Young, 224. Williams v. Augusta, 190. Williams V. Bank of Michigan, 23, 24. Williams v. Bergin, 242. Williams v. Brace, 158. Williams v. Citizens' R. Co., 352. Williams v. First Presbyterian Society in Cincinnati, 348; ■ Williams v. Holden, 305; Williams v. Inhabitants of School Dist. No. 1 in Lunenburg, 151, 211, 458. 678 CASES CITED [The figures refer to pages] Williams: v. Nashville, 41, 106, 113,. 114. Williams v. New Orleans, 470. Williands v. New York Cent. K. Co., 362. Williams v. Rahway, 473. Williams v. Warsaw, 319. Williamson v. Joyce, 286. Williamson v. Keokuk, .421, 547. WilUamson v. New Jersey, 435, 452. Williamson County v. Farson, Leach &. Co., 269. Williamson's Syndics v. . Smoot, 9. Willis V. Chapman, 7. Willoughby v. Florence, 237. Wills V. Ft. Smith, 339. Wilmington & W. R. Co. v. Reid, 426. Wilson, In re, 154, 185, 337, 482. Wilson V. Aberdeen, 424, 431. Wilson T. Allegheny City, 343. Wilson V. Brown, 557. Wilson V. Hudson, 481. Wilson V. King, 219. Wilson V. Lambert, 275. Wilson V. Lexington, 457. Wilson V. Neal, 432. Wilson V. School Dist. No. 4 in Chester, 495, 578. Wilson V. Seattle, 482. Wilson V. Spencer, 170. Wilson V. Wheeling, 394. Wilson V. White, 397. Wilson V. Wichita County, 563. Wilt V. Redkey, 230. Wingate v. Ketner, 459. Wingate v. Sluder, 437. Winkler v. Halstead, 488. Winspear v. District Tp. of Hol- man, 495. Winston v. Salem, 448. Winston v. Taylor, 277. Winston v. Westfeldt, 550. Winter v. Montgomery, 460. Winter v. Niagara Falls, 86. Winters y. George, 111. Winton Coal Co. v. Commission- ers, 449. Wisby V. Bonte, 350. Wisconsin Cent. R. Co. v. Taylor County, 565. Wisconsin Industrial School for Girls V. Clark County, 438. Wisconsin Keeley Institute Co. V. Milwaukee County, 526. Witheril v. Mosher, 380. Witherop v. Tituaville School Board, 581. Wolcott V. Lawrence County, 529. Wolf, Ex parte, 158, 337. Wolf V. District of Columbia, 398. Wolf V. Oiler, 425. Wolf V. Philadelphia, 298. Wolfe V. Moorehead, 145, 280. Wolfe V. New Orleans, 267, 426. Wood V. Atlantic City, 64. Wood V. Bangs, 455, 519. Wood V. Brooklyn, 190. Wood V. Draper, 486. Wood V. Gordon, 159. Wood V. Hinton, 311, 382. Wood V. Mears, 352. Wood V. National Water Works Co., 351. Wood V. Seattle, 172. Wood T. Tipton County, 522, 528. Woodhull V. New York, 378. Woodman v. Nottingham, 402. WoodrufC V. Eureka Springs, 101, 104. Woods V. Armstrong, 339. Woods V. Board of Sup'rs of Madison County, 532. Woods V. Chicago, 286. Woods V. Potter, 198. Woods ex rel. Rodgers v. Henry, 57. Woolf V. Chalker, 340. WooUey v. Baldwin; 227. Worcester Agricultural Society v. Worcester, 461. Word V. Schow, 43. Worden v. New Bedford, 375. Worley v. Columbia, 375. CASES CITED 679 [The figures refer to pages] Worley v. Harris, 61. SVormstead v. Lynn, 236. SVorth V. Commissioners of Fay- etteville, 457. Worthlngton v. Covington, 239. Worthley v. Steen, 147. Wright V. Boston, 299, 365. Wright V. Chicago, 435, 454, 456. Wright V. Chicago & N. W. R. Co., 327. Wright V. Def rees, 172. Wright V. Hughes, 250. Wright V. Jacobs, 209. Wright V. Kinney, 473. Wright V. Overstreet, 117. Wright V. Pipe Line Co., 250. Wrought Iron Bridge Co. v., At- tica, 568. Wyandotte Electric-Light Co. v. Wyandotte, 354. Wyatt V. Rome, 378. Wyker v. Francis, 473. Yale University v. New Haven, 439. Taney v. Fairview, 211. yaple V. Morgan, 198. Yarnell v. Los Angeles, 489. yates V. Milwaukee, 304, 3f3, 339. Yates T. West Grafton, 490, Yeaton v. Bank of Old Dominion. 7. Yick Wo, In re, 181. Yick Wo v. Hopkins, 181, 264, 336. Young V. Caroy, 477; Young V. Chadima Bros., 359, 362. Young .v. Charleston, 389. Young v. Clarendon Tp., 421. Young V. Commonwealth, 314. Young V. Iberville Parish, 538. Young V. Kansas City, 81, 399. Young V. People, 287, 288. Young V. Rothroek, 359, 362. Young V. Thomas, 336. Young V. Webb City, 390. Youngblood v. Sexton, 83, 453. Youngs V. Hall, 79. Zabriskie v. Cleveland, C. & C. R. Co., 17, 4i9. Zalesky v. Cedar Rapids, 277, 282, 283. Zane v. Roseiiberry, 150. Ziegler v. Chajjln, 287. Zimmerman v. Metropolitan St R. Co., 359. Zottman v. San Francisco, 124, 133, 238, 301. INDEX [The figures refer to pages] A ABUTTING OWNERS, - ■' Access, 358. , Additional burdens, 361. Apportionment of special assessments, 298. Awnings, 362. Balconies, 362. Lateral support, 361. Vaults, 360. ACCEPTANCE OF CHARTER, Condition of grant, 50. Generally unnecessary, 48. Special cases, 51. Under general laws, 5L ACCESS, Property of abutting owners, 358. ACTIONS, Counties, 528. Municipal corporations, 464. Certiorari, 480. Criminal, 490. Ex contractu, 465, 466. Ex delicto, 469, 470. Injunction, 488. Mandamus, 472. Quo warranto, 478. Remedies for damages from improvements, 290. Suits in equity, 482, 484. - Quasi-corporations, 497. . ' ADJOURNMENT, i Meetings, 157. ADVERTISEMENTS, Making of improvements and special assessments, 280, 297. Municipal contracts, 241. AGENTS, . County, S13, 540. Defined, 229. COOL.MUN.CORP. (681) 682 INDEX [The figures refer to pages] AGENTS— Continued, Issuing bonds, 545. Municipal, 194, 229, 236. AEDERMEN, Act only as a body, 154. Fiduciary relation, 197. Motives, 171. Officers, 201. ALLEYS, See streets. ALTERATION AND DISSOLUTION, Effected how, 99, 112. Legislative power, 98. AMENDMENT, Charter, 141. Municipal records, 162. Ordinances, 169. AMUSEMENTS, Regulation, 333. ANIMALS, Vagrant, 332. ANNEXATION, To municipal territory, 99. APPOINTMENT, Officers, 205. APPORTIONMENT, Debts, 109. Municipal taxes, 443. Special assessments, 298. APPROPRIATIONS, Municipal, 431. ARRESTS, For violation of ordinances, 341. ASSESSMENTS, See Special Assessments; Taxation. ASSUMPSIT, Application of doctrine of implied contract, 542. Liability for money borrowed, 268. ATTACHMENT, Against property of municipality, 468. AUTOMOBILES, Regulation, 328. INDEX G83. [The figures refer to pagesj AVENUES, See Streets. AWNINGS, Rights of abutting owners, 862. B BANKS, What kind of corporations, 5. BAWDT-HOUSES, Prohibition, 333. BAY WINDOWS, Rights of abutting owners, 362. BENEFITS, Local assessments, 335. BICYCLES, Regulation, 328. BIDS, Municipal contracts, 242. BOARDS, Constituting quasi corporations, 583; BONDS, Application of doctrine of agency, 545 Authority to issue, 268, 420, 544, 547. Dependent on popular vote, 421. Bona fide purchasers, 421, 544-548. Estoppel of county, 548. Excessive issue, 552. Irregularities, 548. Cured by waiver, 548. Not fatal, 421. Negoflability, 268, 544. Public purpose essential, 547. Ratification, 547. Recitals, 551. Conclusiveness, 551. Township, 575. BOROUGHS, Municipalities, 201. BORROWING MONEY, Authority of municipality, 268, 418, 446. Of county, 541. 684' INDEX [Tbe flgures refer to pages] BOUNDARIES, Alteration, 98. Territorial limit of municipal authority, 139. BRIDGES, County, 520. Injuries from defects, 401. Legislative control, 94. Neglect to erect or repair, 4921 Parts of streets, 401. BUDGET, Municipal, 428. BUILDINGS, See Public Buildingai BY-LAWS, Of municipality, 164. See Ordinances. CERTIORARI, Review of municipal acts and proceedings, 480. CHANCERY, Relief to or against mtinicipality, 482, 484. CHARTER, Acceptance, 40. When unnecessary, 4S. Amended, how, 141. Assent, 48. Classification of powers, 124, 136. Constitution of municipality, 123. Contract, not a, 48. Defined, 119. Form and contents, 121. Framed by citizens, 44. • General welfare clause, 127. Powers conferred thereby, 129. Obtained how, under general law, 51. Popular consent, 40. Powers, 124, 186. Delegation, 133. Governmental, 136. Mode of exercise, 132. Municipal, 124, 137. Repeal, 112, 145. Special and general, 39, 42, 119. INDBX 685 [The figures refer to pages] CITIZENS, Members of municipal corporation, 8, 62. CIVIL SERVICE, Laws and rules, 207. CLAIMS, County, 555. Municipal, 429. CLASSIFICATION, Of municipalities, 63. COLLATERAL ATTACK, Validity of incorporation, 56. COMMISSIONERS, County government, 513. COMMISSION, Form of city government, 27. Quasi corporations, 583. COMMON COUNCIL, See Council. COMPENSATION, Officers, 213. De facto, 215, 557. CONDITIONS PRECEDENT, Incorporation, 56. Office holding, 206. Substantial compliance, 56. CONFLAGRATION, Extinguishment, police power, 328. CONGRESS OF UNITED STATES, Creates corporations, 32. CONSOLIDATION, Of cities, 106. Legislative power, 106. CONTRACTS, See Counties; Improvements; Municipal Contracts; Special As- sessments. Personal liability of officers, 224. CORPORATE UNITY, Essential characteristic, 9. CORPORATIONS, See Municipal Corporations; Quasi Corporations. Attributes, 2, 3. Classified, 4. 6S6 INDEX [The figures refer to pages] CORPORATIONS— Ck)ntmued, Created, how, 14, 29. Defined, 1, 2. Incidents, 3. Members, 7, 8, 62. Nature, 7. Private and public distinguished, 4, Qualities, 7, 8. Termination, 8. COUNCIL, Act as a body, 154. As contracting agency, 236. As governing body of municipality, 149. De facto, 151. How composed, 149. Mayor as member, 150. Meetings, 156. Adjourned meetings, 157. Mode of procedure, 153, 159. Motives, 171. Power to bind successors, 246. Quorum, 158. COUNTIES, As quasi corporation, 505. Bonds, 544. Borrowing money, 541. Claims against, 555. Presentation and audit, 555. Contracts, 532. Agents, 538. Authority, 535. Executed by whom, 538. Extraordinary expenditures, 534. Form of, 538. Implied, 537. Limitations as to objects and amount, 533. Popular assent, 534. Ratification, 540. Void, when, 533. Creation, 508. Eminent domain, 523. Fiscal management, 553. Government, 512. Legislative coiitrol, 510, 511. Liabilities, 528. Are solely statutory, 529. Rule of strict construction, 530. INDEX 687 tThe figures refer to pages] COUNTIES— Continued, Officers, 512. Compensation, 556. De facto and de jure, 557. Powers, 505, 514. Buildings, 518. Buy, hold, and sell realty, 516. None inherent, 514. Police powers, 524. Poor, support of, 519. Boads, bridges, and ferries, 520. Schools, 519. Property, 511. Legislative control, 511. Revenue, 559. Legislative power over, 566. Taxation, 560. Assessment, 560. Collection, 563. Levy, 561. Principles, 564. Torts, 522. COUNTY BOARDS, Constitution of, 513. COUNTY BONDS, Authority indispensable, 547. Bona fide purchasers, 544-548. Excessive issue, 552. Irregularities, 548. Cured by waiver, 548. Issued by agents, 545. Negotiability, 544. Promissory notes, are, 544. PubUc purpose essential, 547. Ratification, when and when not possible, 547-549. Recitals, 551. Conclusive when, 551. COUNTY BUILDINGS, See Public Buildings. COUNTY CLAIMS, See Counties. COUNTY COMMISSIONERS, See County Boards. COUNTY PAPER, Not negotiable, 543. 688 iNDtex •IThe figures refer to pages] COURTS, Control of municipal offices, 222. Jurisdiction of violations of municipal ordinances, 1U2, CREATION OF CORPORATIONS, Act of sovereign power, 14, 29. Bodies having power, 32. Delegation of power, 30. Implication, 52. Mode of creation, 38. Operation and effect, 65. Popular consent, 40. Reconciliation' of conflicting decisions, 32. CREDITORS, Right in property, 115. Right to funds, 425, 462. CRIMINAL PROSECUTION, Munidpallties, 490. CROSSINGS, Regulation of operation of railroads, 329. D DAMAGES, Improvements, 290, 293. Remedy, 294. Special tribunals, 294. DEBTS, Apportionment, 109. Power to contract, 413. Power of county, 532. Limitations as to objects or amount, 414, 533. How computed, 416. DEDICATION, Acceptance, 349. Dedicator, 348. Of parks, 368, 369. Of streets, mode, 347. Common-law, 348. Statutory, 350. DE FACTO CORPORATIONS, Defined, 57. Essential elements, 57, Hot* tested, 60. INDEX 689 [The figures refer to pages] DE FACTO COUNCIL, Essential elements, 151. DE FACOX) OFFICERS', Compensation, 215, 557. Defined, 210. Validity of acts, 211. DELEGATION OF POWER, Control of streets,/ 345. Creation of corporations, 30. Eminent domain, 523. Municipal legislation, 164. Police power, 310. Taxation, 433, 560. DISCRETION, Constitutional limitation, 37, 41. Erection of public buildings, 372. Legislative, plenary, 35, 48, 98, 105, 106, 114, Municipal council, assessments, 283, 2D7. Improvements, 283. Contracts, 235, 243. Expenses, 427. Seveers, 364, DISSOLUTION, Of municipalities, effected how, 112, 145. Constitutional limitation, 115. Legislative power, 98, 112. DIVISION, Municipal territory, 106. DOGS, Regulation, 332. DRAINS, See Sewers. DUE PROCESS OF LAW, Improvements, 294. Special tribunals, 294. E ELECTIONS, Creation of corporation, 40. Issue of bonds, 421, 534. Officers, 205. COOL.MUN.CORP. — 44 G90 INDEX [The figures refer to pagesj EMINENT DOMAIN, Counties, 523. MnniclpaUties, 346, 366. Sewerage, 365. EMPLOYES, Municipal, 194, 231. EQUITY, Relief to or against municipality, 482, 484. ESTOPPEL, County, 548. Municipality, 253. EVIDENCE, Corporate records, 161, 162. Ordinances, 191. Proceedings of council, 161. EXECUTION, Against municipality, 468. EXEMPTIONS, From special assessments, 303. EXPENSES, County, 532. Municipal, 427. FEDEKAL. CORPORATIONS, Creation by Congress, 32. FERRIES, Duties of counties, 520. FINES, Power to impose, 187. FIRE, Apparatus, 327. Extinguish, 328. Limits', 325. Summary power, 328. FIRE LIMITS, Power to prescribe, 325. FIREMEN, Negligence of, 380. FISCAL MANAGEMENT, Municipality, 41o. INDEX 691 [The figures refer to pages] FLAGMAN, Street crossings, 329. FORFEITURES, Power to impose, 188. FORMER JEOPARDY, Prosecution under both statute and ordinance, 192. FRANCHISES, Classified, 69. Legislative control, 93. Revocable, 93. FRONTAGE, Basis of assessments, 29S. FUNDS, Municipal, 424. Appropriation, 431, Rights of creditors, 109. G GENERAL LAWS, Authorizing incorporation by communities, 51. Charter obtained under, 51. GENERAL WELFARE, Powers conferred by charter, 127. GOVERNMENTAL FUNCTIONS, Defined and distinguished from municipal functions, IBtt. Liability for failure in, 377. GRADE, Change, 291. H HEALTH, Powers of counties, 525. Powers of municipalities, 320. HIGHWAY, Powers of counties, 520. Street, 342. HISTORY, Of municipal corporations, 24-27. HOLDING OVER, OflJcers, 209. HOUSES OF ILL FAME, Prohibition, 333. 692 INDEX [The figures refer to pages] I ICE AND SNOW, Duty to remove from streets and sidewalks, 400. IMPAIRING OBLIGATIONS, Municipal contracts, 26T. IMPLICATION, Corporation created by, 52. Liability on contract, 259. IMPRISONMENT, Enforcement of fine, 187. IMPROVEMENTS, Contracts for, 286. Authority, 288. Method, 287. Powers inalienable, 290. Damages, 290. Remedies, 294. Statutory changes, 293. Extraordinary, 276. General or local, 271, 272, 277. Municipal "discretion, 283, 297. Popular consent, 280. Power to make or aid, 275. Continuing, 278. Delegation, 278. Preliminary proceedings, 280. Notice, 280. Special tribunals, 294. INCORPORATION, See Creation of Corporations. INDEBTEDNESS, See Debts. INDEPENDENT CONTRACTORS, Liability for injuries from negligence, 408. INDICTMENT, Municipalities, 490. INHABITANTS, Members of municipal corporation, 8, 62. INJUNCTION, Control of officers, 222. Municipal corporations, 488. INDEX 693 [The figures refer to pages] INSPECTION, Corporate records, 163. IRKEGULAE INCORPORATIONS, See De Facto Corporations. J JUDGMENT, Enforcement against municipality, 468. JURISDICTION, Violations of municipal ordinances, 192. JURY TRIAL, Proceedings for violations of municipal ordinances, 191. LATERAL SUPPORT, Abutting property, 361. LEGISLATIVE CONTROL, Bridges,. 94. Charter, 112. Counties, 510, 511, 566. Expenditures, 75, 85. Franchises, 93. Governmental powers, plenary, 137. Limitation, 71. Municipal contracts, 83. Municipal powers exempt from, 137. Obligations, 83, 85. Officers, 73. Property, 88. Reincorporation, 116. Repeal of ordinances, 170. Revenue, 75. Qualified, 77. Streets, 94. Supervision of municipality, 67. - Taxation, 85, 435, 451, 462, 479. LEGISLATIVE SANCTION, Creation of corporation, 14, 16. Creation of county, 508. LEGISLATURE, Change municipalities, 98-108, 112. Create corporations, 14, 29, 32, 33. Authority, how expressed, 16. How exercised, 38. 694 INDEX [The figures refer to pages] LEGISLATURE— Continued, Delegation of power, 30, 50. Discretion plenary and conclusire, '65. Dissolve corporations, 112. Impose obligations, 85. Repeal charters, 112, 145, 190. Method, 145. LETTING CONTRACTS, See Municipal Contracts. LIABILITY, Contracts, 233, 465, 466. Crimes, 490. Torts, 374, 469, 470. LICENSE, Authority of municipality, 317. Occupations and amusements, 334. Taxes, 456. LIGHTING, Streets, 396. LIMITATION, Indebtedness, 414, 533. Legislative power, 71. Police power, 312. LIQUOli SELLING, Prohibiting, 333. Regulating, 333, 337. By ordinance, 185. LOANS, To municipal corporations, 268, 418, 446. LOCAL ASSESSMENTS, See Special Assessments; Taxation. M MAJORITY, Council, 158-160, 206. MANDAMUS, Control of officers, 222. Municipal corporations, 468, 472. Granted, 472. Refused, 475. To compel levy of taxes, 462. MARKETS, Establishment and regulation, 338. INDEX 695 [The figures refer to pages] MAYOR, Duties in general, 150. Member of council, 150. Municipal officer, 200. Power to approve or veto ordinances. 167. MEETINGS, Adjourned, 157.-^ Called, 156. Notice, 157. Proceedings, 159. Quorum, 158. Regulations, 160. Stated, 156. Town meetings, 574. MEMBERSHIP, What constitutes, 7, 8, 62. MOB, Exercise of police power, 316. MONUMENTS, Control of erection in parks and squai'iis, 369. MOTIVES, •Aldermen, 171. Council, 171. « MUNICIPAt, BONDS, See Bonds; Municipal Contracts, , MUNICIPAL- CONTRACTS, Actionable, 233. Annulling, 265. Bonds, 268-270, 420, 445. Power to issue, 420. VaUdity, 421.' Borrowing money, 268, 316. Power not inherent, 418. Contracting agencies, 236. Corporate object, 234. Estoppel, 253. Form, 239. Illegal, 262. Implied promise, 259. Improvements, 286. Irregular, 248. Letting, 240. Advertisement, 241, Bids, 242. 696 INDEX IThe figures reler to pagesj MUNICIPAL CONTRACTS— Continued, Mode, 238. Money contracts, 268. Negotiable paper, 420. Power to bind successors, 246. Protected by federal Constitution, 267. Ratification, 253, 256. Subject-matter, 234. Term and duration, 246. Ultra vires, 248. Partially, 257. Void, against public policy, 263. Contrary to law, 264. With officers, 262. Warrants, 422. MUNICIPAL. CORPORATIONS, Actions, 464. , Certiorari, 480. Ex contractu, 465, 466. Ex delicto, 469, 470. Injunction, 488. Mandamus, 472. Quo warranto, 478. Alteration, 98. Operation and effect, 108. Continuing operation of ordinances, 111> Appropriations, 431. Attributes, 14-21. Borrowing money, 418. Boundary of authority, 139. Bridges and viaducts, 401. Budget, 428. Charter, 119-148. Amendment, 141. Classiflcation of powers, 124, 136. Defined, 119. Delegation of powers, 133. Exercise of powers, 132. Judicial supervision, 135. Form and contents, 121. Repeal, 145. Self-chartered cities, 44. Claims, 429. Classification, 63. Commission form of city government, 27. Consolidation, 106. Operation and effect, 108. INDEX 697 IThe figures refer to pages] MUNICIPAL CORPORATIONS— Oontinued, Contracts, 233. Annulling, 265. Borrowing money, 268. Contracting agencies, 236. For improvements, 286. Illegal, 262. Impairing obligation, 267. Legislative control, 83. Letting, 240. Liability on implied contract, 259. Mode of contracting, 238. Power to bind successors, 246. Ratification and estoppel, 253. Subject-matter, 234. T^rm and duration, 246. Ultra viresj 248. Partially ultra vires, 257. Validity in general, 245. <3ouncil as governing body, 149. Corporate records, 161. Meetings, 156. Mode o£ action, 153. Ordinances and resolutions, 164. Essentials of valid ordinance, 170. Mode of enactment, 165. •Created, how, 16, 29-66, 126. / Assent to, 48. By general law, 42. Assent, 51. Notice, 42. Petition, 42. By implication, 52. . By prescription, 54. Delegation of power, 50. ,^., ., Mode, 38. ; „; .' Operation and efEect, 65. Prerequisites as to territory and population, 45^ Territory must be contiguous, 46. ■Creditors, 425. Defined, 12, 14. ' Dissolved, how, 98, 112, 114. Division, 106. Drains and sewers, 403. Expenses, 427. Funds, 424. Specific, 424. 698 INDEX [The figures refer to pages] MUNICIPAL CORPORATIONS— Continued, History of, 24-27. Improvements, 271. Contracts, 286. Damages, 290. General and local, 272, 277. Power to make or aid, 275. Preliminary proceedings, 280. Special assessments, 295. Enforcing collection, 304. Indebtedness, 413. Kinds, 416. Limitation, 414. Sum total, how computed, 416. Legislative control, 67-97. * Classification of powers, franciiises, and property, &9. Limitations, 71. Membership,. 62. Negotiable paper, 268. Officers, agents, and employes, 194. Appointment and election, 205. De facto, 210. Eligibility, 203. Governmental or municipal, 198. Liability to reimburse municipality, 228. Personal liability in torts, 225. On contracts, 224. Removal, 220. Resignation, 217. Salary, 213. Term of office, 209. Title to office, 212: Ordinances, 164. Essentials, 170. Fines and penaltiep, 187. Mode of enactment, 165. Procedure on violation, 189. Parks, 366. Police powers, 808. Delegation, 310. Double, 318. Enforcement of regulations, 339. Exercise of power, 316. Extent and limitations, 312. Markets, 338. Occupations and amusements, 333. INDEX 699 [The figures refer to pages] MUNICIPAL CORPORATIONS— Continued, Peace and order, 319. Public comfort, 330. • Safety, 324. Sanitation, 320. Power to issue bonds, 420. Prescription, 52, 54. Public buildings, 370. Quasi corporations are not, 14. Reincorporation, IKjj. Effect on ordinances, 118. Self -chartered cities, 44. Sewers, 363. Sidewalks, 397. State is not, 15, 21. Streets, 342. Care of, 387. Dedication and acceptance, 347. Legislative control, 343. Obstructions, 394. Rights of abutting owners, 358. Use, 351. Taxation, 433. Apportionment of taxes, 443, Exercise of power, 457. Limitations, 453. For benefit of creditors, 462. ImpUed power, 454. • Legislative control, 435, 451. License taxes, 456. Purposes, 437. Subjects, 445. Termination, 98, 112. Territories are not, 15, 23. Torts, 374. Care of streets, 387. Governmental and municipal duties distinguished, 376. Respondeat superior, 406. Ultra vires, acts, 409. Validity of incorporation, 56. Collateral attack, 60. De facto corporations, 57. How tested, 60. Warrants, 422. MUNICIPAL WARRANTS, Issuance of, 422. 700 INDEX [Tile figures refer to pages] N NEGLIGENCE, Municipal, 374. NEGOTIABLE PAPER, Counties, 543. Municipalities, 268. NOTICE, Council meetings, 157. Of claims, 429, 555. Special assessments, 298. Town meetings, 574. NUISANCES, County, 525. Municipal, 323. OATH, Of officers, 207. OBLIGATIONS, Impairing, 267. Imposed by legislature, 85. See Bonds ; Municipal Contracts. OBSTRUCTIONS, Streets, 351. OCCUPATIONS, Prohibited, 333. Regulated, 334. OFFICE, See Officers. OFFICERS, Acceptance, 206. Aldermen, 201. Appointment, 205. ■ As contracting agencies, 236. Civil service, 207. Compensation, 556. Contest, 212. Contracts with, void, 262. De facto and de jure, 210. Departments and boards, 202. Election, 203. Eligibility, 203. Fiduciary character, 197. INDEX 701 [The figures refer to pages] OFFICERS— Continued, Governmental, 73, 198. Judicial control, 222. Mayor, 200. Municipal, 24, 194, 198. Personal liability on contract, 224. Beimbursement of municipality, 228. Removal, 220. " Resignation, 217. Acceptance, 218. Implied, 218. Term of office, 209. Holding over, 209'. Title to office, 212. Torts, 225. Liability of city, 406. Veteran acts, 207. Who are, 512. ORDINANCES, Amendment, 169. Authorized, 172. By-laws, 164. Contrary to statute, 173. Contravening common right, 176. Effect of division or consolidation, 111. Effect of reincorporation, 118 Enactment, 165. Essentials, 170. Fines, 187. Forfeitures, 188. Form, 166. Imprisonment, 188. Mode of enactment, 165. Oppressive, 174. Partial, 175. Penalties, 187. Police regulations, 185. Procedure, 189. Proof of, 191. Publication, 168. Public poUcy, 177. Reasonable, 179, 183. Liquor selling, 185. Sanitary, 185. Record, 166. Repeal, 169, 170. Resolutions, 164. 702 INDEX [The figures refer to pages] ORDINANCES— Continued, Trade regulations, 176. Unconstitutional, 173. Unreasonable, 179, 180. Veto, 166. Violation and enforcement, 339. ORGANIZATION, ' Municipal corporations, 40. PARKS, Dedication, 368, 369. Perversion, 368. Withdrawal, 36S». Eminent domain, 366. Extraterritorial, 366. Municipal concern, 367. Proper uses, 368. PAUPERS, Support, 519. PEACE AND ORDER, Police power of municipality, 319. PENALTIES, Violation of ordinances, 187. PEKSONAL LIABILITY, Officers, 224, 225. Exemptions, 228. Summary powers, 340. POLICE OFFICERS, Torts of, 377. POLICE POWER, Amusements, 333. Arrests, 340. Comfort, 330. CQunty, 524. Limited scope, 525. Dangerous forces, 329. Delegatipn by state, 310, 524. Double, 318. Establishment of fire limits, 325. Exercise, 316, 339. Extent, 312. Fire apparatus, 327. Imprisonment, 340. IIJDBX 703 rr\e figures refer to pages] POLICE POWER— Continued, Licenses, 317. Limitations, 313. Territorial, 314. Liquor selling, 333, 337. ' • Markets, 338. Municipal attribute, 308. Nuisances, 323. Occupations, 333. Peace and order, 319. Safety, 324. Sanitation, 320. Sovereign,- 308. Speed regulations, 328. State, 318. Stopping conflagrations, 328. Summary, 316, 340. Arrest and imprisonment, 340. POLITICAL POWER, Not a vested right, 82. POOR, Support, 519. POPULAR CONSENT, ' ^ Creation of municipality, 40. POPULATION, As basis of classification of municipalities, 63. As prerequisite to incorporation, 45. POWERS, Municipal, 124. Classified, 69, 124, 136. See Bonds ; Improvements ; Legislative Control ; Municipal Con- tracts; Ordinances; Police Power. PRESCRIPTION, Creation of corporation by, 54. Existence of public corporations, 52, 54. PRIVATE CORPORATIONS, Distinguished from public, 4. PROCEDURE, Violations of municipal ordinances, 189, PROCEEDINGS, Meetings of council, 156. ^ PROHIBITION, Occupations and amusements, 333. 704 INDEX [The figures reter to pages] PROMISSORY NOTES, County, 544. PROOF, Ordinances, 191. Proceedings of council, 161. PROPERTY, Apportionment on division of municipality, 109. Classified, 69. Creditors' rights, 90. Municipal, 88. PUBLIC BUILDINGS, County, 518. Essential, 370, 518. Land therefor, 370. Municipal discretion, 372. Power to erect and maintain, 370, 371, 51Sl Regulation of construction, 325. PUBLIC COMFORT, Protection, 330. PUBLIC CORPORATIONS, Classified, 12. Created how, 14, 16. Defined, 10. Distinguished from private, 4. PUBLIC FUNCTIONS, Defined and distinguished, 136. PUBLIC HEALTH, See Health. PUBLIC IMPROVEMENTS, See Improvements. PUBLIC POWERS, Inalienable, 290. PUBLIC SCHOOLS, See School Districts. PUBLIC SQUARES, See Parks. QUARANTINE, Cities, 322. Counties, 525. INDEX 705 [The figures refer to pages] QUASI CORPORATIONS, Boards constituting, 583. Counties, 505. Defined, 12, 493. Distinguished from corporations, 13, 493, 501. Distinguishing elements, 501. Governmental only, 501. Local benefits, 502. No charters or inherent powers, 501, 503. Popular consent unnecessary, 502, 509. Districts which are, 582. Enumerated, 494. Immunities, 497. Reasons for, 498. New England towns, 570. Other than counties, 569. School districts, 576. Townships, 574. Bonds, 575. QUASI PUBLIC CORPORATIONS, Defined, 4, 12, 14. Distinguished from private, 6. QUORUM, Meeting of council, 158. QUO WARRANTO, Usurpation of franchise or office, 478. R RATIFICATION, County contracts, 540. Municipal contracts, 253, 256. RECITALS, Bonds, 551. RECORDS, Corrected, 162. Evidence, 161. Inspection, 163. REINCORPORATION, Of municipality, 116. REMEDIES, See Actions. REMOVAL, Officers, 220. COOL.MUN.COEP. — i5 706 INDEX [The ngures refer to pages] REPAIR, Streets, 387. REPEAL, Charter, 112, 145i Method, 145. Ordinances, 169, 170. RESIDENTS, Members of municipal corporation, 8, 62. RESIGNATION, Officers, 217. RESOLUTION, Municipal legislation, 164. See Ordinances. REVENUES, Legislative control, 75. Examples, 78. Qualified, 77. ROADS, See Streets. SAFETY, Police power of municipality, 324. SALARY, County officers, 556. Officers, 213. De facto, 215. SANITATION, County, 525. Municipality, 320. SCHOOL DISTRICTS, As quasi corporations, 576. Contracts, 578. Directors, 580. Existence and management, 577. SCHOOLS, Power to maintain, 519. SELF-CHARTERED CITIES, Ejescribed, 44. SERVITUDES, Abutting property, 361. INDEX 707 [The figures refer to pages] SEWEfiS, Compulsory, 363. Connections, 365. Eminent domain, 365. Extraterritorial, 364. Municipal discretion, 364. Negligence, 366. SIDEWALKS, Abutting owners, 358. Care of, 398. Coal chutes and hatchways, 399. Ice- and snow, 400. See Streets. SINKING FUND, Rights of creditors, 426. SITUS, Property for taxation, 448. SNOW AND ICE, Duty to remove from streets and sidewalks, . 400. SOIL, Lateral support, 361. SPECIAL ASSESSMENTS, Apportioning, 298. Authority, 275, 277, 295. Basis, 335. Benefits, 335. Collection, 304. Constitutional questions, 296, 297. Due process of law, 297. Estoppel, 307. Exemptions, 303. Frontage rule, 298. Lien enforced, 305. Assignee, 305. Municipal discretion, 297. Notice, 298. Personal liability, 306. Petition, 280. Property liable, 302. Recoupment, 305. Set-off, 293. SPECIATi CHARTERS, Effect of general law on, 45. Municipal corporations, 38, 120. 708 INDEX [The figures refer to pages] SPECIAL MEETINGS, Council, 156. STATE, Not a municipal corporation, 15, 21. Power of legislature to create corporations, 32, 33. STREETS, Abandonment, ' 358. Abutting owners, 358. Bridges, 401. Dedication and acceptance, 347. Definition, 342. Legislative control, 94, 343. Delegation, 345. Lights, 396. Obstructions, 394. Bailways, 355. Reasonable care, 387, 392. Surface, 356. Underground, 356. Uses, paramount, 351. Subordinate, 352, 355. Vacation, 357. See Sidewalks. SUBMISSION TO VOTE, See Elections. SUITS, ■ See Actions. SUMMARY PROCEEDINGS, Exercise of police power, 316. Violations of ordinances, 340. SUPERVISORS, County, 513. TAXATION, County, 560. Assessment, 560. Collection, 563. Levy, 561. Principles, 564. Municipal, 433. Apportionment, 443. General, 459. Assessment, 459. INDEX 709 [The figures rgter to pages] TAXATION— Continued, Collection, 459. Compulsory, 451, 462. Creditors' rights, 462. Mandamus, 462. Exercise of power, 457. Legislative control, 82, 85, 451, License tax, 456. Lien, 459. Limitations, 453. Power delegated, 433. Express, 453. Implied, 454. Public purposes only, 437. Judicial question, 439. What are, 441. Record evidence, 458. Subjects, 445. Adjacent lands, 448. Choses in action, 449. Situs, 448. Taxes are debts, 460. TAXPAYERS, Actions, 485. TERRITORIES, Not municipal corporations, 15, 23. Power of legislature to create corporations, 32, 34. TERRITORY, MUNICIPAL, Addition to, 99. Adjacent or contiguous lands, 102. Farming lands, 103. What territory may be annexed, 102. Diminution of, 105. Division of, 106. Limit of authority, 139. I TORTS, Action for failure to perform .municipal duty, 376. Care of streets,' 386, 387. Conflicting decisions, 386, 387. Defenses, 390. , Drains, 403. Governmental and municipal functions, distinguished, 376. Liability of counties, 522. Municipal function, 384. , Municipal performance of governmental duty, 386. 710 INDEX [The figures refer to pages] TORTS— Continued, Independent contractor, 408. Ministerial functions, 402. Municipal liability, 374. Municipal property, 384. No action for failure to perform governmental duty, 37tS. Officers, 225, 377, 406, Public functions, 377. Respondeat superior, 406. Sewers, 403. Sidewalks, 397. Coal chutes, 399. Hatchways, 399. Ice and snow, 400. Latent defects, 398. Statutory liability, 383. Streets, 386. Bridges, 401. Lights, 396. Obstructions, 394. Reasonable care, 387, 392. Tests of liability, 389. Ultra vires acts, 409. TOWN MEETINGS, Annual and special, 574. TOWNS, Are quasi corporations only, 494. TOWNSHIP BONDS, Validity, 575. TOWNSHIPS, Local governments, 574. TRIAL BY JURY, Proceedings for violations of municipal ordinances, 191. u ULTRA VIRES, i Contracts, 248. Torts based on ultra vires acts, 409. UNITED STATES, Power of Congress to create corporations, 32. USURPATION, Franchise or office, 478. INDEX 711 [The figures refer to pages] VAULTS, Under sidewalk, 360. VESTED EIGHTS, Creditors, 115, 425, 462. VETERAN ACTS, Municipal offices, 207. VETO, Ordinance, 166. VOTE, See Elections. w WARRANTS, Issue by municipality and effect, 422. WOODEN BUILDINGS, Restrictions, 325. WRITS, See Certiorari ; Injunction; Mandamus ; Quo Warranto. WEST FVBLISHINQ CO., PBINTEBS, ST. FAUL, UISll. KP 5305 C77 ' Author Cooley, Roger William Title Handbook of the law or municipal corporations. Vol. 1 Copy