CJnrnfU Cam irtjnnl Slibtarg 
 
Cornall University Library 
 KF 5305.D57 1873 
 
 V.I 
 
 The law of Municipal Corporations / 
 
 3 1924 019 959 422 
 
Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924019959422 
 
THE LAW 
 
 OF 
 
 MUOTOIPAL OORPORATIOJN^S 
 
THE LAW 
 
 OF 
 
 Municipal Corpoeations 
 
 BY 
 
 JOHIS^ F. DILLO]!^^, LL. D., 
 
 THE CIRCOIT JUDGE OF THE UNITED STATES FOK THE EfGHTH JUDICIAL CIRCUIT, 
 
 PROFEBSOB OF LAW IN THE UNIVEESITT OF IOWA, AND LATE ONE 
 
 OF THE JUSTICES OF THE 8UPKBME COURT OF IOWA 
 
 SECOND EDITION — REVISED AND ENLARGED 
 
 YOL. I 
 
 NEW YOEK 
 
 JAMES COCKCROFT & CO 
 
 1873 
 
Entered, according to Act of Congress, in the year 1873, 
 
 By JOHN F. DILLON, 
 In the ofiBce of the Librarian of Congress, at Washington. 
 
 CI 
 
 Press of ToBiTT & Bttnoe, New York. 
 

 TO THE HONORABLE 
 SAMUEL F. MILLEE, LL.D., 
 
 ASSOCIATE JUSTICE OF THE SITPKEME COURT 
 OF THE UNITED STATES. 
 
 WHETHER I SHARE IN THE 
 
 GENERAL ADMIRATION OF TOUR JURIDICAL TALENTS, 
 
 OR LISTEN TO THE MORE PERSUASIVE SUGGESTIONS OF A VOICE 
 
 THAT COMES TO ME TROM 
 
 LONG ASSOCIATION AT THE BAR AND UPON THE BENCH, 
 
 THERE IS NO ONE TO WHOM I CAN INSCRIBE, 
 
 SO iItTINGLT as TO YOURSELF, 
 
 A WORK 
 
 RELATING TO AN IMPORTANT BRANCH OF THAT SCIENCE 
 
 WHICH YOU HAVE STUDIED SO DEEPLY 
 
 AND UNDERSTAND SO WELL. 
 
PKEFAOE TO SEOOISTD EDITIOK 
 
 The favor accorded to this treatise by the profession is 
 gratifying to the author and compensates for the great 
 labor of its preparation. Nothing can be more pleasing lo 
 an author than the knowledge that the studious care given 
 to a work is appreciated by those for whom it was written : 
 then- approving opinion is the reward he covets and enjoys- 
 
 The First Edition; published about twelve months ago, 
 and of nearly double the usual size, has been exhausted, and 
 at the request of the publishers the Second Edition has 
 been prepared. As before, this has been the personal labor 
 of the author. All reported cases, decided since the first 
 publication, have been examined and the text and notes 
 prepared without the assistance of others. While this edi- 
 tion embraces a summary of recent cases to the latest date 
 and contains substantial additions, the structure of the 
 work is unaltered. Some new sections have been added and 
 others re- written. The principal changes have been made 
 in the chapters which treat of Municipal Securities, Taxes, 
 and Assessments. The amount of negotiable bonds of 
 
viii PREFACE. 
 
 Municipalities largely exceeds the sum of the indebtedness 
 of all the States, and it has been the earnest endeavor 
 herein to exhibit accurately the American law upon this 
 important subject. 
 
 In conclusion, it is deemed fitting to express to the 
 Bench and Bar of the country % sincerely grateful appreci- 
 ation of the favorable judgment already pronounced, and a 
 hope that the same, upon further examination of the work, 
 may be neither reversed nor modified. 
 
 J. F. D. 
 
 Davenport, Iowa, 1873. 
 
PEEFAOE TO FIEST EDITION 
 
 The necessity tor a work upon Municipal Corporations was so 
 seriously felt by the author when holding a seat on the Supreme 
 Bench of a state where questions relating to the powers, duties, and 
 liabilities of municipalities were presented at almost everj' term, 
 that he resolved, eight years ago and more, to endeavor to supply 
 the want. Although the subject is one of unsurpassed practical im- 
 portance, since nearly every . considerable city and town in the 
 United States is incorporated, no American work upon it has ever 
 appeared. A careful examination of the English treatises satisfied 
 the author that they were, in a great measure, inapplicable here, and 
 that they fail to cover a large portion of the existing field of the 
 law upon the subject as enlarged by American legislation and 
 practice. True, our municipal system, like the body of our jurispru- 
 dence, was derived from England, but it is remarkable how many 
 changes were necessary to adapt it to our system of government 
 and mode of administration, and to the wants and situation of our 
 people. Accordingly, if the municipalities of the one country be 
 closely compared with those of the other, it will be found that in 
 their structure, powers, and workings, they present quite as many 
 points of difference as of similarity. 
 
 We have popularized and made use of municipal institutions to 
 such an extent as to constitute one of the most striking features of 
 our government. It owes to then;, indeed, in a great degree, its 
 decentralized character. When the English Municipal Corporations 
 Eeform Act of 1835 was passed there were in England and Wales, 
 excluding London, only two hundred and forty-six places exercising 
 municipal facetious; and their aggregate population did not exceed 
 
J. PREFACE. 
 
 two millions of people. In this country our municipal corporations 
 are numbered by thousands, and the inhabitants subjected to their 
 rule by millions. 
 
 Our municipalities are habitually clothed by the legislatures 
 with extensive, important, and diversified powers, and consequently 
 possess a much more composite character than in England or else- 
 where. Strictly, a municipal corporation is an institution designed 
 to regulate and administer the mere local or internal concerns of 
 the incorporated place in matters pertaining to it and not relating 
 directly to the people of the state at large. But in this country, 
 much more generally than in England, it is the practice to make 
 use of the municipality, or of its ofBcers, as agencies of the State, 
 for the exercise, on its behalf, of public, in addition to corporate, 
 duties and functions. From the difference between these two 
 classes of powers the American courts have deduced consequences so 
 important that it is as necessary, as it is ofteutimes difficult, to dis- 
 tinguish between them. Besides, it has, unfortunately, become 
 quite too common with us to confer upon our corporations extra- 
 ordinary powers, such as the authority to aid in the construction of 
 railways, or like undertakings, which are better left exclusively to 
 private capital and enterprise, and to create, in their corporate 
 capacity, indebtedness therefor, enforceable by actions in the courts, 
 and which must be paid by taxation. 
 
 Invested, also, within certain limits, with delegated legislative 
 authority concerning the property and conduct of their inhabitants ; 
 with power, more or less extensive, to acquire and dispose of prop- 
 erty; with the power to elect their own officers; to make contracts; 
 to incur liabilities ; to exercise Eminent Domain ; and the equally 
 momentous power, to levy and collect taxes, general and special; 
 these corporate agencies are thus brought into intimate and daily 
 contact with the most important rights and interests of their inhab- 
 itants, and as a result, we have an amount and variety of litigation 
 not to be found in the tribunals of other countries. In no English 
 treatise on Municipal Corporations is there a chapter upon the sub- 
 ject of civil actions and liabilities, and no discussion of the question 
 as to their amenability to respond civilly in damages to individuals 
 for acts of misfeasance, or for neglect of duty ; and for reasons not 
 material to be here stated, the occurrence of questions of this kind 
 
PREFACE. 
 
 XI 
 
 iu the English tribunals has been oomparatiTely infrequent. The 
 American Eeports, however, teem with cases on this subject, and the 
 civil liability of municipal corporations upon contracts and for torts, 
 and the mode of enforcing it, are with us the most important prac- 
 tical topics requiring treatment in a work of this character. 
 
 There being no American work on this branch of the law, and 
 the decisions in this country relating to it being scattered through 
 the reports of the federal courts, and those of thirty-seven states, 
 there was little to guide the author, either as to the arrangement of 
 his subject or as to what had been decided by the courts concerning 
 it. Accordingly, he had no resource except to delve laboriously for 
 his materials among hundreds of volumes ; but these have, one by 
 one, been examined by him with a view to find all that could be ad- 
 vantageously used to illustrate t\e subject, and the result is given, 
 either in the text or notes, as fully as it was practicable within the 
 compass of a single volume. Nor has he overlooked the aid to be 
 derived from other sources. Every English publication relating to 
 the subject in its legal or practical relations has been subjected to 
 examination; books which could not otherwise be had have been 
 specially procured from abroad. And, throughout the present 
 volume, no inconsiderable pains have been taken to set forth where- 
 in the English and American municipalities differ, so that the ap- 
 plicability and precise legal value of the judicial dicisions of the 
 former country would be better understood. 
 
 When the work was resolved upon, the author hoped to proceed 
 with the leisurely care that would enable him to avoid the faults 
 which thorough deliberation might result in correcting. This hope 
 has not been as fully realized as he desired, lor year by year his 
 oflBcial duties have more and more encroached upon his time, leaving 
 for this work only the diminishiug intervals between courts. In its 
 preparation he has often envied the author by profession the oppor- 
 tunity for continuous and unbroken labor, and he cannot but feel 
 that if his work had not been prepared in fragments, it would not have 
 fallen both so far below his ideal, and what, under more auspicious 
 circumstances, he himself might have made it. It is hoped, how- 
 ever, if it shall lack the symmetry and finish such an author would 
 have given it, that it may have compensating advantages in its 
 thovovighly praciical character; and these it will surely owe to that 
 
xii PREFACE. 
 
 experience to which the mere student or professional writer must 
 ever be a stranger, and which can be had only upon the bench or at 
 the bar. 
 
 Some pecaliarities in the manner of its preparation will be ob- 
 served. The aim throughout has been to "make a work which will 
 be useful to the profession. Aware that in most cases access to com- 
 plete law libraries cannot be had, the author has endeavored, as far 
 as practicable, to supply this want #nd to make the text and notes 
 exhibit the substance of the adjudications. This explains why so 
 much care .has been taken to cite the cases bearing upon the sub- 
 jects discussed, and accounts for the fullness of proofs and illustra- 
 tions to be found in the notes. 
 
 He trustfully submits the Work, which fills up the interstices 
 between judicial duties for nearly nine years, to the profession for 
 whose assistance it is designed, and whose final judgment on it will 
 not be otherwise than just. If he could be assured that it has a 
 value at all proportioned to the labor first and last bestowed upon it, 
 he would venture to hope for a judgment not altogether unfavorable. 
 
 Davenpokt, Iowa, 1872. 
 
TABLE OF CONTENTS. 
 
 CHAPTER I. 
 
 MUNICrPAI/ INSTITUTIONS — INTBODUCTORT HI8T0BICAL VIEW. 
 
 Ancient cities. Grecian cities. Boman municipalities. State of towns in 
 Europe after the fall of the Roman Empire. Medieval Charters. Char- 
 ters of Community in France. Modifications of Roman municipal sys- 
 tem. Enfranchisement of towns in Spain, and its causes. Municipal 
 system of Great Britain. Historical sketch of Boroughs: their incorpo- 
 ration and distinctive features. Origin of popular representation. Lon- 
 don and its municipal history and charters. Corruption and abuses in 
 the English municipal corporations. Reform Act of 1835. Lord 
 Brougham's services in promoting municipal reform. American munici- 
 pal system. Its early origin. Decentralized character. Operation and 
 effects. Corruption and abuses. Remedy suggested. Results summed 
 up Sees. 1-8 
 
 CHAPTER IL 
 
 COBPOKATIONS DEFINED AND CLASSH-IED. 
 
 General definition. Municipal corporations defined. Different kinds and 
 grades of public corporations. Quasi Corporations. New England towns : 
 powers and mode of government. City Governments. The State as a 
 public Corporation Sees. 8a-14 
 
 CHAPTER IIL 
 
 CBEATION AND SBVBEAL KINDS OF MTTNICIPAL COBPOBATIONS. 
 
 In England. — Royal and parliamentary corporations. The old English mu- 
 nicipal corporations. Their diverse character. Integral parts. Abuses 
 in municipal rule. Municipal Reform Corporations Act of 1835. Abstract 
 of its leading provisions. Constitutes the English corporations upon an 
 uniform model. 
 
 In the United States. — Created by state legislative enactment. Their great 
 numbers. Creation by territorial legislatures. Special Charters and 
 General Incorporating Acts. Outline of ordinary charter. Advantage of 
 General Incorporating Acts. Creation by implication. Acceptance of 
 charter. Submission to vote of inhabitants. Special constitutional pro- 
 visions and their construction. General and special acts. Restriction 
 on municipal powers. , Title of incorporating Charter or Acts. Sees. 15-38 
 
TABLE OF CONTENTS. 
 
 CHAPTER IV. 
 
 PUBLIC Airo PBITATB CORPOEATIONS DISTINGUISHED. — LBGISLATITE POWER 
 ASD ITS lilMITATIOJfS. 
 
 Importance of the distinction between pvMie and private corporations. Dif- 
 ference defined. Scope of legislative authority. Complex character of 
 ordinary municipalities. Distinction between public or state and munic- 
 ipal or local powers. Legislative authority over corporate funds and 
 revenues. Limitation in favor of creditors. Power over corporate bound- 
 aries and public property. Whether municipal corporations are in any 
 respect primate. Oases cited and criticised. Public powers and rights 
 held at the will of the legislature. Creditor's rights cannot be impaired. 
 Illustrations from decided cases. Extent of legislative power over the 
 private property of municipal corporations discussed. May be compelled 
 by the legislature to pay debts not legally binding; and to incur debts 
 against their will. Power over trust property. . . Sees. 39-47 
 
 CHAPTER V. 
 
 MUNICIPAIi CHAKTBR8. 
 
 General MnnvApal Powers. — Their Nature and Gonatruetion. 
 
 Charters defined. Judicially noticed. Proof of corporate existence; user; 
 legislative recognition. Repeals and amendments. General laws and 
 special charters ; conflict ; constructions. 
 
 Extent of power ; limitations ; canons of construction. Osage as affecting 
 mimicipal powers. Discretionary powers not subject to judicial control. 
 Public powers and trusts not capable of delegation. Legislative powers 
 incapable of surrender. Mandatory and discretionary powers; difference 
 defined and illustrated. Revenues exempt from judicial seizure. Gar- 
 nishment. Sees. 48-65 
 
 CHAPTER VL 
 
 MUUICIPAL CHARTERS (CONTDfUBD). 
 
 Bpedal Powers and Special Idmitations. 
 
 1. Wharves. 
 
 3. Ferries. 
 
 3. Borrowing Money. 
 
 4. Limitation on power to become Indebted. 
 
 5. Rewards for Offenders. 
 
 6. Public Buildings. 
 
 7. Police Powers and Regulations. 
 
 8. Prevention of Fives. 
 
 9. Quarantine and Health. 
 10. Indemnifying of Officers. 
 
TABLE OF CONTENTS. 3 
 
 11. Furnishing Entertainments. 
 
 13. Impounding Animals. 
 
 13. Party Walls. 
 
 14. Public Defence. 
 
 16. Aid to Railway Companies, and herein of the constitutional power 
 of the legislature; cases cited. Power must be express. Con- 
 sti'uction of special grants of power ; cases cited. . Sees. 66-108 
 
 CHAPTER VII. 
 
 DISSOLUTION OF MUNICIPAL CORPORATIONS. 
 
 In England : 1, by act of parliament; 2, by loss of integral part; 3, by sur- 
 render; 4, by forfeiture. These modej, except the first, not applicable 
 in this country. EfEect of dissolution on property and debts. Authorities 
 reviewed. Revival of corporation and its effect. . . Sees. 109-116 
 
 CHAPTER VIII. 
 
 CORPORATE NAMB, BOUNDARIES, AND SEAL. 
 
 Corporate name. Name as respects grants and contracts. Name as re- 
 spects suits. Corporate boundaries. Legislative enlargement of terri- 
 torial limits. Territorial division — its effect on property and rights. Cor- 
 porate seal ; proof of Sees. 117-132 
 
 CHAPTER IX. 
 
 MUNICIPAL ELECTIONS AND OFFICERS. 
 
 1. Municipal Popular Elections. 
 
 3. Special tribunal to determine election contests for municipal offices. 
 
 3. Power to create and appoint municipal oMcers. 
 
 4. Oath and Official Bond. 
 
 5. Duration of Official term. 
 
 6. Vacancies in Municipal Offices. 
 
 7. Refusal to serve in office. 
 
 8. Resignation of Municipal Office. 
 
 9. Compensation of Municipal Officers. 
 
 ID. Liability of the corporation to the officer. 
 
 11. Liability of the officer to the corporation and to others, 
 
 13. Amotion and Disfranchisement Sees. 133-194 
 
 CHAPTER X. 
 
 CORPORATE MEETINaS. 
 
 1. Common law requisites of a valid corporate meeting. 
 3. Notice of corporate meetings at common law and under the English 
 Municipal Corporations Act. 
 
4 TABLE OF CONTENTS. 
 
 3. New England town meetings; requisities of notice and power or ad- 
 
 journment. 
 
 4. Constitution and meetings of councils or of select governing bodies ; 
 
 and herein of quorums and majorities; of integral parts; and 
 of stated special, and adjourned meetings. 
 
 5. Mode of proceeding when convened. . . . Sees. 195-230 
 
 CHAPTER XI. 
 
 COKPOKATE REOOBDg AND D0CTJMBNT8. 
 
 Means of Evidence : Clerk joro tern. ; power to amend records ; admissibility 
 of parol evidence. Remedy to compel delivery of books and records. 
 Mandamus. Replevin. Inspection of corporate documents and records. 
 Records as evidence. Originals and authenticated copies. Sees. 331-242 
 
 CHAPTER XII. 
 
 MTTNICIPAL ORDINANCBS, OK BT-LAWB. 
 
 1. Definition, general nature, and common law requisites of ordinances. 
 
 2. Signing, publication, and recording. 
 
 3. Power to impose fines, penalties, and forfeitures. 
 
 4. On whom binding, and notice thereof. i 
 
 5. Ordinances relating to the licensing, regulating, and taxing of 
 
 amusements and occupations, including the sale of intoxicating 
 liquors. 
 
 6. Ordinances relating to public oflFences. 
 
 7. Ordinances relating to the public health, safety, and convenience; 
 
 herein of hospitals, cemeteries, and burials; nuisances; markets 
 and inspection regulations; dangerous occupations and practices; 
 and of the police powers and general welfare clause in charters. 
 
 8. Mode of enforcing ordinances; herein of actions and prosecutions 
 
 and their nature; mode of pleading ordinances; requisites of 
 complaints to enforce ordinances; construction; defences; evi- 
 dence, &c Sees. 243-355 
 
 CHAPTER XIII. 
 
 MCTNICIPAI, COTJBTB. 
 
 In England, and at common law. American corporation courts. Consti- 
 tutional provisions. Construction. Right to jury trial. Competency of 
 citizens to be local judges, jurors, and witnesses. Summary convictions, 
 when valid. Indictable oflFences. Distinctions. Extent of jurisdiction. 
 Jury on appeal. Review by Superior Courts. . . . Sees. 856-369 
 
 CHAPTER ^ t.tV. 
 
 CONTKACTB. 
 
 1. Extent of power to contract, and how conferred. 
 8. Mode of exercising the power. 
 
TABLE OF CONTENTS. 5 
 
 3. Seal not necessary unless required ; may be concluded by vote or 
 
 ordinance. 
 
 4. When bound by contracts made by agens ; mode of execution. 
 
 5. Contracts beyond corporate powers void ; ultra vires a defence. 
 
 6. Implied contracts ; when deduoible. 
 
 7. Ratification of unauthorized contracts. 
 
 8. Provisions requiring letting to the lowest bidder. 
 
 9. Contract of suretyship. 
 
 10. Rights and liabilities as respects authorized contracts ; cases men- 
 
 tioned. Power to settle disputed claims; to give extra compensa- 
 tion ; to employ attorneys. 
 
 11. Contracts for public works ; rights of contractors. 
 
 12. Same: corporate control under stipulation. 
 
 13. Evidences of indebtedness ; negotiable bonds. 
 
 14. Ordinary warrants or orders; their legal nature. 
 
 15. Liability of indorsers thereof. 
 
 16. Payment and cancellation of orders and warrants. 
 
 17. Rights and remedies of holders thereof. 
 
 18. Befences thereto ; ultra vires ; fraud; want of consideration. 
 
 19. Orders payable out of particular fund. 
 
 20. Interest on corporate indebtedness. 
 
 21. Railroad aid bonds ; course of decision in United States Supreme 
 
 Court. 
 32. Leading cases in the National Supreme Court on the subject noticed. 
 23, Decision in State Courts referred to. Author's conclusions stated. 
 
 Sees. 870-426 
 
 CHAPTER XV. 
 
 CORPOBATB PKOPBRTT. 
 
 History of corporate capacity to take, hold, and dispose of property. Re- 
 sult stated. Grants to corporations ; statutes of mortmain ; charter the 
 source of power; power to take by devise and gift; to hold in trust; 
 Girard's will; McDonough's will; McMicken's will; MuUanphy's will; 
 power to act as charitable trustees ; eflfect of corporation exceeding its 
 power to hold property; alienation of property; sales on execution; 
 mode of alienation ; mortgages. Leases. Conveyances and their requi- 
 sites Sees. 427-451 
 
 CHAPTER XVL 
 
 EMINENT DOMAIN. 
 
 General nature of the power. Constitutional restrictions ; legislature may 
 authorize fee to be taken for streets and public places, but no more in 
 amount than necessary ; dower in streets and public places ; public use ; 
 parks ; ornamental purposes ; public squares ; legislative determination of 
 public character of use, how far conclusive ; authority delegated to mu- 
 nicipalities ; construction of power. Must be strictly pursued ; illustra- 
 tions; right of municipal authorities to abandon proceedings; when 
 
6 TABLE OF CONTENTS. 
 
 right ceases; remedy of land owner; appeal; certiorari; injunction; 
 special remedies; compensation, when to be made; damages and benefits; 
 assessments upon abutters; tribunal to determine amount ; when by jury ; 
 amount of damages ; special benefits and injuries; rules to measure dam- 
 ages stated Sees. 452^88 
 
 CHAPTER XVIL 
 
 DEDICATION. 
 ♦ _ 
 
 1. Importance of the doctiine of dedication. 
 
 2. Statutory and common law dedications. 
 
 3. Common law dedication ; rationale and requisites. 
 
 4. Extent of dedication as respects the donor. 
 
 5. "Who may dedicate ; intent ; how established. 
 
 6. Effect of long use and acquiescence. 
 
 7. Effect of platting and sale of lots. 
 
 8. Acceptance by the public; when and for what purpose necessary. 
 
 9. Dedication of public squares and their uses. 
 
 10. Dedications for other purposes. 
 
 11. Alienation and change of use. 
 
 13. Keverter ; misuser ;, remedy Sees. 490-515 
 
 CHAPTER XVIII. 
 
 Legislative control. Its extent. Legalization of obstructions. Remedy 
 by indictment; in equity, and by action. Remedy of corporation by 
 ejectment and effect of judgment. Vacation of streets. Prescription and 
 adverse possession. Statute of limitations. Highways and roads within 
 city limits. Municipal authority over streets and their uses. Power to 
 improve and graduate ; exclusive privileges therein. Gas pipes ; water 
 pipes ; telegraph poles. Openings under sidewalk. BaUroads in streets : 
 extent of legislative authority. Delegated authority, how conferred and 
 construed ; rate of speed. Horse railways in streets : extent of municipal 
 power ; its construction and limitations; rights and liabilities of the com- 
 pany; whether an additional servitude; cases cited; conclusions stated. 
 Bridges : Construction, repair, and liability. Streets primarily for public 
 travel and use. Limitations on free transit and use. Building materials 
 on streets and sidewalks; necessary temporary obstructions; projecting 
 shutters and dooi^ . Sees. 516-585 
 
 CHAPTER XIX 
 
 UTJinCrPAIi TAXATION AND liOCAL ASSESSMENTS. 
 
 Nature of taxing power. Power may be delegated to municipalities. Re- 
 strictions in Federal Constitution. State constitutional provisions. Local 
 assessments to pay for local improvements. Constitutionality of special 
 
TABLE OF CONTENTS. 7 
 
 assessments. Provisions of State Constitutions construed. Municipal 
 power to tax must be clear. Construction of grants of this character. 
 Mode of exercising power. ' General revenue laws, how far applicable to 
 municipalities with special charters. Exemption from taxation. "Tax" 
 and " assessment " distinguished. Power of municipalities to tax inca- 
 pable of delegation. Is a continuing one. What property may be, and 
 what must be, taxed. Taxations of trades and occupations. Municipal 
 taxation of rural lands. Paving streets. What the power to pave includes. 
 Conditions and mode of exercise. Drains and Sewers. Mode of collecting 
 general and special taxes Sees. 586-660. 
 
 CHAPTER XX. 
 
 MAHDAMUS. 
 
 1. Definition and General Nature of the Remedy. 
 
 2. When the Writ will be Granted or Refused. 
 
 8. Mandatory and Discretionary Powers as respects the Remedy by 
 Mavda/mus. 
 
 4. Mandamus as respects Municipal Elections and Officers; To Take 
 
 Office; To Admit to Office; To Restore to Office. 
 
 5. To obtain Possession and Inspection of Corporate Books and Papers. 
 
 6. To Enforce Duties Towjird Creditors. 
 
 7. Application for the Writ — Affidavits — Relator — Rule. 
 
 8. Form, Direction, and Service, of the Writ. 
 
 9. The Return and subsequent proceedings. 
 
 10. Peremptory Writ. 
 
 11. Attachment. 
 
 13. Judgment. Sees. 661-713. 
 
 CHAPTER XXI. 
 
 Qtro WABEAUTO. 
 
 Nature of proceeding. Usurpation of municipal office and franchises. Va- 
 lidity of munidpal elections ; when tested on mandamus to admit, and 
 when by quo wa/rranto. Office of Writ or Information. When Writ or 
 Rule granted; when not. Judgment. . . . Sees. 713-736. 
 
 CHAPTER XXn. 
 
 RBMBDEBB TO PEBVBNT, OORBBOT, ANT) BBDRBSS, It/LBGAL CORPOBATB ACTS. 
 
 1. In Equity : When injunction will lie ; At whose suit ; Right of attor- 
 ney general ; Of the citizen and tax-payer ; When equity will inter- 
 fere to prevent abuse or misuse of corporate powers ; Illegal appro- 
 priations and illegal taxes. 
 
 3. Oertiora/ri- When the proper remedy; When it lies; When not; 
 What may be examined under. 
 
8 TABLE OF CONTENTS. 
 
 3. ProMbition: When it may be resorted to, and the nature of the 
 
 remedy. 
 
 4. Indici/ment : When it lies against the corporation, and when against 
 
 its officers . . Sees. 727 748. 
 
 CHAPTER XXni. 
 
 crrtL ACTIONS and liabilitibs. 
 
 Actions on Gontraets. » Sees. 749-751. 
 
 1. Liability on Contracts — Ultt'a Vires as a defence. 
 *S. Liability on Implied Contracts, generally. 
 
 3. For Illegal Taxes, etc., compulsorily collected. 
 
 Actions for Torts. Sees. 752-802. 
 
 4. No liability in respect to the exercise of discretionary or legislative 
 
 powers. 
 
 5. Nor for imperfect execution of by-laws. 
 
 6. Nor for misconstruing extent of public powers. 
 
 7. Nor, without a statute creating it, for buildings demolished to pre- 
 
 vent fire. 
 
 8. Nor for property destroyed by mobs. 
 
 9. Implied liability for neglect of corporate duty. 
 
 10. Distinction in this respect between quasi corporations and municipal. 
 
 11. Liability for torts of officers and agents. 
 
 12. Not liable for acts ultra vires — illustrations. 
 
 13. But liable for authorized torts not ultra vires. 
 
 14. Bespondeat Superior, when applicable. 
 
 15. Bespondeat Superior : Who are, and who are not, corporate officers. 
 
 16. Liability for neglect of corporate duty. 
 
 17. Liability in capacity of property owner. 
 
 18. No liability for acts authorized by charter or statute. 
 
 19. Streets: May grade and change grade of streets. 
 
 20. Streets : Remedy therefor, if given, must be followed. 
 31. Streets : Liability for unsafe street and sidewalks. 
 
 22. Defective Highways: New England statutes and decisions on this 
 
 subject. 
 28. Streets : General liability of municipal corporations proper for unsafe 
 
 Liability of author of defect or obstruction. 
 
 Bef ects caused by railroads. 
 
 Liability as to water courses and surface water. 
 
 Drains and Sewers — liability in respect to. Sees. 749-802. 
 
 
 streets. 
 
 24. 
 
 Streets: 
 
 25. 
 
 Streets : 
 
 26. 
 
 Streets: 
 
 27. 
 
 Streets: 
 
TABLE OF OASES OITED. 
 
 [the KBPEKENCE8 AKB TO THE SECTIONS.] 
 
 A.bbott V. Herman 386 
 
 V. Mills 496, 499, 507, 521 
 
 V. Yost 176 
 
 Abby V. Billups 130, 374 
 
 Aberdeen v. Saunderson 35, 47 
 
 Abernethy v. Dennis 539 
 
 Achison v. Barlow 24 
 
 V. Bartliolew 24a 
 
 V. Butcher 46, 106, 420 
 
 V. Twine 760 
 
 Achley's Case 148, 151, 210 
 
 Adams v. Beale 660 
 
 V. Carlisle 777, 738 
 
 V. Farnsworth 383 
 
 V. Hill 231 
 
 V. Mack 24t 
 
 T. Mayor 253, 363, 297, 611 
 
 V. Newfane 476 
 
 V. Railroad Co. 
 
 426, 448, 469, 562 
 
 V. Rivers 544 
 
 V. Walker 799 
 
 V. Whittlessey 176 
 
 ■ Adley v. Reeves 279, 287, 341, 342 
 
 Adriance v. New York 735 
 
 Adsit V. Brady 176 
 
 African 8oc. v. Varick 121, 123 
 
 Aiken v. Railroad Co. 80 
 
 Albany, £x parte 61 
 
 V. Cnnliflf 381, 767 
 
 Albany St., Matter of 458, 459, 463 
 
 Albright v. Town Council 371 
 
 Alcorn v. Horner 23, 596 
 
 V. Philadelphia 773, 775 
 
 Alden v. Pinney 532 
 
 V. Rounsville 139 
 
 Aldermen v. Finley 50 
 
 Aldrich v. Howard 308, 312, 338 
 
 V. Londonderry 750 
 
 V. Pelham 768 
 
 Alexander v. Baltimore 467, 476, 481 
 
 482, 590, 496, 728 
 
 V. Heller 654 
 
 T. floyt 176 
 
 Alexander V. McDowell 696 
 
 T. Milwaukee 781, 783 
 V. Railroad Co. 67 
 
 Alexandria v. Alexandria 54 
 
 Alger V. Lowell 788, 789 
 
 Allegheny v. Railroad Co. 541, 560 
 Allegheny City v. McClurken 
 
 381, 406 
 
 Allegheny City's Appeal 659 
 
 Allegheny County v. Van Campen 
 
 155 
 
 V. Shaw 763 
 
 Allen V. Cooper 221, 386 
 
 V. Decatur 769 
 
 V. Drew 596 
 
 V. Jay 105ft, 460, 465, 587 
 
 V. McKean 80, 174 
 
 V. Taunton 13, 94 
 
 V. Turner 735 
 
 AUentown v. Seager 751 
 
 Allison V. Juniata County 410, 414 
 
 All Saints Church v. Lovett 117 
 
 Altemus v. Mayor 392 
 
 Alton V. Illinois Transfer Co. 433 
 
 V. Madison County 750 
 
 V. Mulledy 374, 383 
 
 V. Transportation Co. 
 
 508, 511, 513, 532 
 Alvey V. Henderson 445, 512, 529 
 Alvord V. Ashley 491 
 
 V. Barrett 176 
 
 Amboy v. Sleeper 303 
 
 Ambrose v. State 302 
 
 Amelung v. Seekamp 533 
 
 American Bible Soc. v. Marshall 436 
 American Ins. Co. v. Oakley ■ 383 
 American Print "Works v. Lawrence 
 
 176, 756 
 
 American, &c., Co. v. Buffalo 613 
 Ames V. County 93 
 
 Amesbury v. Insurance Co. 354 
 
 Amey v. Allegheny City 
 
 90, 104, 106, 265, 369, 407, 436, 610 
 Amrine v. K. P. R. R. Co. 738 
 
 Amy V. Supervisors 
 
 176, 666, 691, 698, 802 
 
10 
 
 TABLE OF CASES CITED. 
 
 Anderson v. Draining Co. 463 
 
 V. St. Louis 469, 476, 738 
 
 T. State 735, 761 
 
 Andover v. Gould 543, 784 
 
 V. Grafton 13, 379 
 
 V. Sutton 579 
 
 Andrews v. Insurance Co. 351 
 
 V. United States 169, 172 
 
 Annapolis v. Harwood 606, 656 
 
 V. State 38 
 
 Anonymous 239 
 
 Anthony v. Adams 13, 766, 768 
 
 V. Cleveland 381 
 
 y. Halderman 141 
 
 y. Inhabitants 412 
 
 Anthony Street, Matter of 
 
 473, 474, 487 
 Antones y. Eslaya 492, 495, 510 
 
 Appleby v. Mayor 381, 388 
 
 Applegate y. Ernst 639 
 
 Arbegust y. Louisville 633 
 
 Argenti y. San Francisco 55, 373, 383, 
 384, 393, 402, 413, 481, 599 
 Arkwright v. Cantrell 165 
 
 Armington v. Barnet 454 
 
 Armstrong v. Commissioners 30 
 
 y. Dalton 539 
 
 Armstrong County v. Clarion County 
 
 750 
 
 Arnault v. New Orleans 28, 126 
 
 Arnold v. Bridge Co. 460, 488 
 
 y. Cambridge 638, 738 
 
 v. Shields 476, 744 
 
 Amot. v. McClure 470 
 
 Arrowsmith v. New Orleans 503 
 
 Asbrook v. Commonwealth 95, 308 
 
 Ash V. People 79,291,293,313,318,319 
 
 Ashley y. Reynolds 751 
 
 Ashton y. Ellsworth 245, 275 
 
 Ashville v. Means 337, 605, 606 
 
 Aspinwall v. Knox County 425 
 
 v. Jo Daviess County 
 
 42, 105, 106, 420, 436, 608 
 
 Assessors v. Commissioners 107 
 
 Atchison v. Challiss 799, 801 
 
 V. King 788, 789, 790 
 
 Athearn v. District 238 
 
 Atkins y. Barlow 34 
 
 Atkinson v. Kailroad Co. 24a 
 
 Atlanta v. White 313 
 
 Attorney General y. Aspinwall 
 
 141, 368, 730 
 V. Birmingham 730 
 V. Brown 730 
 
 V. Detroit 
 
 389, 390, 7306 
 V. Dublin 
 
 729, 730, 735 
 
 Attorney General v. Earl Clarendon 
 
 193 
 V. Exeter 730 
 
 v. Gas Co. 312 
 
 V. Gooderich 515 
 y. Gower 113 
 
 V. Heelis 739, 730 
 y. Heishon 530, 531 
 v. Insurance Co. 407 
 V. Kerr 118 
 
 V. Lathrop 387 
 
 V. Leicester 
 
 118, 730 
 y. Litchfield 
 
 82, 141, 730 
 y. Liverpool 730 
 V. Lock 63 
 
 V. Mayor 399 
 
 y. Nepeau Road Co. 
 533 
 V. New Tork 61 
 v. Norwich 730 
 V. Patterson 737 
 v. Peterson 476 
 V. Plank Road Co. 
 
 622 
 V. Plymouth 
 
 728, 730 
 v. Poole 
 
 141, 368, 370 
 V. Railroad Co. 560 
 V. Rye 133 
 
 V. Salem 
 
 730, 731, 735 
 V. Shrewsbury 
 
 109, 487, 443 
 V. TJtica Ins. Co. 713 
 v. Wigan 730 
 
 V. Wilson 
 
 118, 738, 730 
 
 V. Worcester 118 
 
 Atwater v. Baltimore 773 
 
 Auditor v. Davies 14 
 
 Augusta V. Leadbetter 13, 398 
 
 v. Perkins 
 
 508, 513, 443, 508, 515 
 
 v. Railroad Company 639 
 
 V. Sweeny 170 
 
 Augusta Bank v. Augusta 104 
 
 AuU V. Lexington .305 
 
 Aurora v. Gillett 799 
 
 V. Puffer 788, 799 
 
 v. Reed 543, 799 
 
 V. West 30, 66, 104, 106, 405, 
 
 430, 433, 433 
 
 Austin V. Murray 
 
 93, 261, 306, 336, 354 
 
TABLE OF CASES CITED. 
 
 11 
 
 B. 
 
 Bab V. Clerke 287 
 
 Babbitt v. Savoy 98 
 
 Bacher'B Case 191 
 
 Backman v. Charlestown 383, 385 
 Bacon v. Boston 585, 786, 789 
 
 V. Robertson 
 
 109, 110, 113, 114 
 Bagg V. Detroit 574, 596, 735 
 
 Bagg's Case 
 
 178, 180, 188, 190, 193. 193 
 
 Bagot's Case 21 
 
 Bailey, Ex parte 669 
 
 V. New York 
 
 39, 176, 760, 764. 779, 780 
 V. Railroad Co. 518, 537 
 
 Baileyville v. Lowell 398 
 
 Bainbridge v. Sherlock 73 
 
 Baird v. Bank 444 
 
 V. Rice 491, 508, 509, 518, 537 
 Baker v. Boston 
 
 58, 59, 93, 336, 766, 777 
 V. Chambles 376 
 
 V. Cincinnati 593, 751 
 
 V. Commonwealth 531 
 
 T. Johnson County 
 
 374, 405, 413 
 
 V. Johnston 491, 494, 495, 503, 
 
 504, 505, 507, 508, 529, 667, 668 
 
 v. Pittsburg 170 
 
 V. Portland ■ 345, 789 
 
 V. Savage 535, 788 
 
 V. State , 176 
 
 V. St. Paul 491 
 
 V. Utica 169, 403 
 
 V. Windham 98, 335 
 
 V. Young 199 
 
 Balch V. Commissioners 470 
 
 Baldwin v. Bangor 476 
 
 V. Buffalo 495 
 
 V. Calkins 740 
 
 Baldwin County v. Liquor Dealers 
 
 397 
 
 Ball V. Armstrong 583, 794 
 
 V. Brigham 739 
 
 V. Winchester 763 
 
 Ballard v. Davis 231 
 
 Baltimore v. Board of Police 
 
 34, 30, 34, 406, 608 
 v. Bouldin 471, 642 
 
 v. Brannan 789 
 
 V. Cemetery Co. 616 
 
 v. Chase 655, 656 
 
 V. Clunet 
 
 346, 353, 458, 476 
 V. Eschbach 
 
 373, 470, 639, 766, 768 
 V. Gill 58, 85, 733, 736« 
 
 Baltimore v. Heffennan 
 
 
 751 
 
 V. Horn 45, 
 
 158, 
 
 729, 736a 
 
 V. Marriott 
 
 669, 
 
 788, 789 
 
 V. Pennington 
 
 
 
 789, 
 
 790, 791 
 
 V. Porter 
 
 45, 
 
 687, 689, 
 
 729, 736<t, 
 
 737, 738 
 
 V. Poultney 
 
 
 
 197, 
 
 231, 
 
 383, 760 
 
 V. Railroad Co. 
 
 
 147, 
 
 639, 
 
 737, 739 
 
 V. Reynolds 
 
 
 
 372 
 
 ,373 
 
 , 382, 386 
 
 V. Root 
 
 
 65 
 
 V. Turnpike 
 
 
 221 
 
 V. White 67,69,71,73,74,76 
 
 Banbury's Case 
 
 
 109, 159 
 
 Bancroft v. Lynnfleld 
 
 
 13,98 
 
 Baldwin v. Green 
 
 
 537 
 
 Banett v. Henderson 
 
 
 693 
 
 Bangor v. Lansil 
 
 
 799 
 
 Bangs V. Snow 
 
 
 55 
 
 Bank y. Bridges 
 
 
 54 
 
 V. Brown 
 
 
 23 
 
 V. C;hilicothe 
 
 55, 83, 407 
 
 V. City Council 
 
 
 629 
 
 V. Dand ridge 
 
 
 
 152, 153 
 
 237 
 
 373, 383 
 
 V. Davis 
 
 
 54 
 
 V. Dubuque 
 
 
 448, 450 
 
 V. Earle 
 
 
 436 
 
 V. Parmington 
 
 
 406, 407 
 
 V. Gottschalk 
 
 
 376 
 
 V. Hamlin 
 
 
 241, 335 
 
 V. Hart 
 
 
 342 
 
 V. Hines 
 
 
 593 
 
 V. Enoop 
 
 
 30 
 
 V. Lockwood 
 
 
 114 
 
 V. Mayor 639, 770, 771, 777 
 V. Navigation Co. 405 
 
 V. New Orleans 751 
 
 v. Niles 433, 444 
 
 V. Patterson 133, 371, 376, 377. 
 380, 383, 385, 407 
 
 V. Petway 
 
 
 159 
 
 V. Railroad Co. 
 
 130 
 
 405 
 
 V. Beton 
 
 
 236 
 
 V. Smedes 
 
 
 373 
 
 V. Supervisors 
 
 98, 
 
 737 
 
 V. Town Council 
 
 
 629 
 
 V. United States 
 
 
 348 
 
 V. Wister 
 
 
 133 
 
 Bank of Ireland v. Evans 
 
 
 130 
 
 Bank of Rome v. Rome 
 
 
 
 23, 27, 104, 106, 
 
 407, 
 
 423 
 
 Bankhead v. Brown 
 
 464 
 
 465 
 
 Banks v. Ogden 
 
 
 491 
 
 V. Poiteaux 
 
 
 444 
 
12 
 
 TABLE OF CASES CITED. 
 
 Banton v. Wilson 682 
 
 Barber v. Essex 795 
 
 V. Koxbuiy 788, 789 
 
 Barber Surgeons v. Pelson 346 
 
 Barclay v. Howell 494, 496, 498, 499, 
 
 501, 503, 504, 515, 520, 527, 544 
 
 Bardwell v. Jamaica 579 
 
 Barett v. New Orleans 433 
 
 Barker v. Loomis 82 
 
 V. State 634 
 
 Barlett v. Crosier 176, 579 
 
 Barling v. West 258 
 
 Barnes v. Atchison 605 
 
 V. Barnes 51 
 
 V. Beloit 737 
 
 V. Pennell 176 
 
 Bamett v. Newark 265 
 
 V. Jefferson County 129 
 
 Barney v. Bush 176 
 
 Barnwell v. McGrath 529 
 
 Baron v. Baltimore 74, 454, 797 
 
 Barr v. Deniston 734, 737 
 
 Barre v. Greenwich 134 
 
 Barrett v. Brooks 9, 535, 536 
 
 V. Henderson 621 
 
 V. Schuyler County 405 
 
 Barry v. Lowell 777, 779, 801, 802 
 
 V. Merchants Exp. Co. 82, 407 
 
 V. St. Louis 791 
 
 Barter v. Commonwealth 272, 302, 
 
 343, 358, 361, 366, 530, 541, 544 
 
 Bartho v. Salter • 173 
 
 Bartlett v. Amherstburg 384 
 
 V. Crozier 691 
 
 Barto V. Himrod 23, 104 
 
 Barton v. Montpelier 788 
 
 V. New Orleans 169, 305 
 
 V. Syracusj 790, 802 
 
 I v. Columbus 424 
 
 V. Fontleroy 34, 47 
 
 Bassett v. Barber 685 
 
 V. Porter 51 
 
 Bateman y. Mayor 371, 372 
 
 T. Megowan 141, 368 
 
 V. Mid Wales R. Co. 
 
 81, 82, 393, 407 
 Bates V. Mobile 626, 630 
 
 V. Plymouth 239, 684, 695 
 
 Bath y. County Commissioners 235 
 Baton Rouge y. Deering 357 
 
 Battle y. Mobile 590, 626 
 
 Batty y. Duxbury 795 
 
 Baumgard y. Mayor 777 
 
 Baxter y. Commonwealth 279, 287 
 y. Winooki Turnpike Co. 786 
 Bayergue y. San Francisco 413 
 
 Beach v. Frankenberger 795 
 
 Beach y. Haynes 433, 436, 445 
 
 Beachy v. Lamkin 
 
 703, 712 
 
 Beals v. Amador County 
 
 599 
 
 Bean y. Jay 
 
 398 
 
 y. Tompson 
 
 176 
 
 Bearce y. Fossett 
 
 204 
 
 Beard y. Brooklyn 400, 402 
 
 Beardslee v. French 630 
 Beardsleyv.Smith 445,686,762,791,794 
 
 Beatty v. Gilmore 531, 789 
 
 V. Knowles 50, 605 
 
 ^ V. Kurtz 494, 510 
 
 Beaufort v. Duncan 433, 451 
 
 Beayer Dam v. Frings 433 
 
 Bechtel v. Carslake 522 
 
 Beck y. Hanscom 159, 222 
 
 Beecher y. Bridge Co. 789 
 Beekman y. Railroad Co. 480, 483 
 
 Beekman Street, Matter of 306 
 
 Beers y. Arkansas 14 
 
 y. Beers 367, 482 
 
 y. Botsford 762 
 
 y. Phoenix Glass Co. 82 
 
 Beesman y. Peoria 357 
 
 Belcher y. Farrer 305 
 
 Belknap v. Rheinhart 176 
 
 Bell, Re 98 
 
 y. Foutch 535, 536, 580 
 
 y. Gough 433 
 
 y. Railroad Co. 514 
 Bell County y. Alexander 437, 442 
 
 Belleyille y. Stokey 491 
 
 Bellows y. Bank 116 
 
 Beloit y. Morgan 405, 424 
 
 Bemis v. Beckel 126 
 
 Benbow y. Iowa City 686 
 
 Benedict v. Denton 131 
 
 V. Goit 783 
 
 Benjamin y. Wheeler 58, 781, 788, 784 
 
 Bennefield v. Hines 297 
 Bennett v. Birmingham 291, 604, 631 
 
 V. Buifalo 660, 751, 771 
 
 y. Fisher 458 
 y. New Orleans 
 
 753, 772, 781, 799 
 
 y. People 297 
 
 Bennington y. Smith 537 
 
 Benoist v. Carondolet 132 
 
 y. St. Louis 610, 634 
 
 Benoit y. Conway 57, 83 
 
 V. Wayne County 174 
 
 Benson y. Albany 27 
 
 y. Carmel 410 
 
 y. Mayor 80, 433 
 
 Benton y. Jackson 22 
 
 Benton Street Case 594 
 
 Bentz y. Armstrong 799 
 Bergen y. Clarkson 
 
 92, 234, 279, 287, 483, 656 
 
TABLE OF CASES CITED. 
 
 13 
 
 Berks Co. v. Myers 123 
 
 Berlin v. Gorham 
 
 Berliner v. Waterloo 424 
 
 Berryman v. Wise 176 
 
 Bestor v. Powers 132 
 
 Bethune v. Hughes 313, 319 
 
 V. Turner 511 
 
 Betts V. WilUamsburg 481 
 
 Beurojohn v. Mayor 307 
 
 Beygen v. Chicago 652 
 
 Bibb County v. Railroad Co. 629 
 
 Biddle v. Shippen 491 
 
 V. Willard 161, 671 
 
 Bietry v. New Orleans 403 
 
 Bigelow V. Hillman 228, 249 
 
 V. Louisville 389, 764 
 
 V. Perth Amboy 237, 397 
 
 V. Railroad Co. 470, 487 
 
 V. Randolph 763 
 
 V. Weston 789 
 
 Bills V. Kinson 101 
 
 Bird V. Wasco County 168 
 
 Birmingham t. Anderson 499 
 
 Bischer v. Richards 579 
 
 Bishop V. Cone 232 
 
 V. Macon 757 
 
 Bissell V. Jeflfersonville 46, 227, 
 
 236, 416, 418, 420, 423, 424, 425 
 
 V. Railroad Co. 
 
 382, 496, 524, 557 
 
 Black, Ex parte 672 
 
 V. Railroad Co. 555, 558 
 
 Blackburn v. Walpole 206 
 
 Blackerby v. People 712 
 
 Blackett v. Blizard 199 
 
 Blackstone v. Taft 128 
 
 V. White 51 
 
 Bladen v. Philadelphia 87, 169, 373 
 
 Blagrave's Case 192 
 
 Blair v. Forehand 101 
 
 Blaisdell v. Portland 789 
 
 Blake v. Ferris 791, 792 
 
 V. Railroad Co. 114 
 
 V. St. Louis 789,791 
 
 V. Sturdevant 176 
 
 Blanc V. Mayor 621 
 
 Blanchard v. Bissell 126, 244, 265 
 
 V. Blackstone 376 
 
 V. Po ter 74 
 
 Blanding v. Burr 
 
 23, 30, 44, 590, 596, 608 
 Bleeker v. Ballou 616 
 
 Bleu V. Bear River Co. 385 
 
 Bliss V. Ball 496, 524, 544 
 
 V. Brooklyn 764 
 
 V. Kraus 596 
 
 Blyth V. Birmingham Water Works 
 
 551 
 
 Block V. Jacksonville 268, 299 
 
 Blodgett V. Boston 464, 786 
 
 V. Royalston 505 
 
 Bloodgood V. Mohawk, &c., R. R. Co. 
 
 105J, 458, 463, 467, 480 
 
 Bloomington v. Bay 
 
 
 789 
 
 790 
 
 V. Wah: 
 
 
 
 319 
 
 Board v. Edson 
 
 
 512 
 
 515 
 
 V. Grant 
 
 
 685 
 
 707 
 
 V. Municipality 
 
 
 
 31 
 
 V. Pooley 
 
 
 
 289 
 
 V. Strader • 
 
 
 
 579 
 
 Boardman v. Hayne 
 
 
 
 176 
 
 Bob V. State 
 
 
 
 789 
 
 Bodman v. American Tract Soc. 
 
 122 
 
 Bodwic V. Fennell 
 
 
 341, 
 
 349 
 
 Bogarr v. Mayor 
 
 
 
 743 
 
 Bogert V. Indianapolis 
 
 
 306, 
 
 307 
 
 Boggs V. Hamilton 
 
 
 
 176 
 
 Boileau's Case 
 
 
 
 136 
 
 Boiling V. Petersburg 
 
 445, 
 
 524, 
 
 526 
 
 Bolte V. New Orleans 
 
 
 
 273 
 
 Bolton V. Growth er 
 
 
 
 176 
 
 Bond V. Hiestand 
 
 
 54, 
 
 655 
 
 V. Kenosha 
 
 616 
 
 617, 
 
 738 
 
 V. Newark 
 
 401, 
 
 648, 
 
 727 
 
 Bonesteel v. Mayor 
 
 375, 
 
 388, 
 
 408 
 
 Bonner v. State 
 
 
 
 680 
 
 Boom V. Utica 
 
 308 
 
 381 
 
 768 
 
 Booth V. State 
 
 
 
 338 
 
 V. Woodbury 
 
 
 
 103 
 
 Boren v. Commissioners 
 
 
 669 
 
 Boring v. Williams 
 
 
 
 366 
 
 Borough V. Shorts 
 
 
 596, 
 
 644 
 
 BorougL of Little Meadows 
 
 
 126 
 
 Borough of Tintagel 
 
 
 
 680 
 
 Boston V. Lecraw 
 
 
 73, 
 
 498 
 
 V. Monroe 
 
 
 
 751 
 
 V. Richardson 
 
 496, 524, 544, 546, 568 
 
 V. Shaffer 
 
 241, 291, 298, 294, 606 
 
 V. Shaw 261, 548, 637, 645, 784 
 
 V, Worth ington 795 
 
 Boston Glass Manuf. v. Langdon 109 
 Boston Mill Corp. v. Newman 464 
 Boston Turnpike v. Pomfret 
 
 232, 233, 236 
 Boston Water Power Co. v. Boston 
 
 751 
 
 Boston, &c., Glass Co. v. Boston 751 
 Bosworth V. Budgen 356 
 
 Bouldin v. Baltimore 610, 639 
 
 Bouton V. Brooklyn 506 
 
 Bow V. Allentown 9, 22, 51, 431 
 
 Bowdoinham v. Richmond 129 
 
 Bowen v. Morris 378 
 
 V. Team 529, 531 
 
14 
 
 TABLE OF CASES CITED. 
 
 Bower v. State Bank 
 Bowerbank v. Morris 
 Bowlin V. Furman 
 Bowlsby V. Spear 
 Bowman v. Boston 
 
 V. St. John 
 Boyce v. Russell 
 Boyden v. Brookline 
 Boyer v. State 
 Boyland v. Mayor 
 Boyter v. Dodsworth 
 Bozant v. CampbfeU 
 Bradford v. Chicago 
 Bradley v. Ballard 
 V. McAtee 
 V. Bichmond 
 Bradshaw v. Omaha 
 Brady v. Insurance Co. 
 
 V. Mayor 381, 
 
 V. Supervisors 
 Biailey v. Southborough 
 Brainard t. Railroad Co. 
 Braintree v. Battles 
 Brander v. Judges 
 Branham v. San Jose 
 
 372, 448, 513, 526 
 
 Brashear v. Mason 670 
 
 Bray v. Wallingford 65, 762 
 
 Brevoort v. Detroit 388, 652 
 
 Brewer v. New G-loucester 
 
 Brewster v. Harwich 
 
 V. Hyde 
 
 V. Newark 
 
 V. Syracuse 44, 588, 596 
 
 Brick Church, Matter of 306 
 
 Bridge v. Gage 91 
 
 V. Lincoln 177 
 
 Bridge Co. v. Clarksville 454 
 
 V. Dubuque 
 
 594, 618, 629 
 V. Lowell 454 
 
 Bridgeport v. Railroad Co. 
 
 46, 55, 58, 104, 106, 372, 382, 616 
 
 Bridges v. Griffin 629 
 
 Briggs V. Boat 324 
 
 V. Mnrdock 204 
 
 V. Whipple 50, 98, 99 
 
 Bright V. Hewes 399 
 
 V. Supervisors 172 
 
 Brightman v. Kimer 594, 616 
 
 Biimmer v. Boston 61 
 
 Brine v. Railroad Co. 
 
 121 
 174 
 445 
 800 
 
 505, 789 
 275 
 
 667, 668 
 169 
 501 
 
 381, 768 
 174 
 
 256, 305 
 757 
 749 
 
 590, 596 
 65 
 
 683, 684 
 338 
 
 385, 387 
 399 
 786 
 560 
 61 
 678 
 
 762 
 129 
 204 
 642 
 
 Brittain v. Newland 123 
 
 Britton v. Curamington 786 
 
 V. Philadelphia 650 
 
 V. Platte City 686, 689 
 
 Broadhead v. Milwaukee 103 
 
 Broad nac's Case 346 
 
 Brocas v. London 241 
 
 Brodnax v. Groom 28, 737 
 
 Bronson v. Kinsie 41 
 
 Brookline v. Westminster 124 
 Brooklyn v. City R. R. Co. 
 
 61, 557, 567, 570, 572, 791 
 
 V. Cleves 319 
 
 V. Patchen 482 
 
 V. Tonybee 302 
 BrooKiyn Park Commissioners v. Arm- 
 strong 456,458,462,465,510,512,513 
 
 Brooks V. Somerville 790 
 
 Brower v. Appleby 23, 51 
 
 V. New York 735, 780 
 
 Brown v. Beatty 480 
 
 V. Crego 685 
 
 V.' Duplessis 569 
 
 V. Heath 65 
 
 V. Hunn 838 
 
 V. Insurance Co. 110 
 
 V. Jefferson County, 889 
 
 V. London 41 
 
 V. Lowell 543, 783 
 V. Manning 
 
 491, 498, 507, 515, 522, 735 
 
 591, 
 
 V. Maryland 
 
 V. Rundlett 
 
 V. Sarnia 
 
 V. Smith 
 
 V. Utica 
 Browning v. Railroad Co. 
 
 V. Springfield 
 Bruce v. Bruce 
 Brunette v. Mayor 
 Brunswick v. Litchfield 
 Bryan v. Bates 
 
 V. Cattail 
 
 166, 167, 168, 663, 671, 695 
 
 630 
 ■ 176 
 
 799, 800 
 144 
 412 
 476 
 
 785, 789 
 
 184 
 
 295 
 
 43 
 
 149, 347 
 
 Brinkmeyer v. Evansville 
 Briscoe v. Bank 
 
 V. Drought 
 Bristol V. New Chester 
 Briton v. New York 
 
 781, 799, 800, 802 
 
 Bryant v. McCandless 
 Bryson v. Philadelphia 
 Buchanan v. Curtis 
 Buck V. Lockport 
 Buckbee v. Brown 
 Buckner, Ex parte 
 
 V. Augusta 
 Buckwall V. Story 
 Buell V. Ball 
 
 772 
 
 773 
 14 
 
 797 
 
 28, 127 
 
 61 
 
 443, 494 
 
 61 
 
 499 
 
 77 
 740 
 512 
 658 
 634 
 
 606. 
 248, 
 
 V. Buckingham 199,216,217,221 
 Buffalo V. Halloway 401, 791 
 
 T. Le Couteulx 613 
 
 ■ V. Webster 
 
 261, 289, 390, 313, 319 
 
TABLE OF CASES CITED. 
 
 15 
 
 Buflette V. Railroad Co. 
 
 749 
 
 Butz V. Muscatine 41, 89, 
 
 107, 
 
 114, 
 
 Bulkley v. Eckert 
 
 65 
 
 416, 416J, 436, 608, 610, 
 
 685, 
 
 689 
 
 Bull V. Read 28, 
 
 590, 737 
 
 Byers v. Commonwealth 334 
 
 344 
 
 361 
 
 T. Sims 406, 
 
 408, 413 
 
 V. Olney 
 
 
 397 
 
 Bullock V. Curry 
 
 435 
 
 V. Trustees 
 
 
 399 
 
 V. Qeomble 
 
 384 
 
 
 
 
 Bulow V. City Council 
 
 629 
 
 0. 
 
 
 
 Bunnell's Appeal 
 
 533 
 
 
 
 
 Burden v. Stein < 
 
 462 
 
 Cabot V. Britt 
 
 
 235 
 
 Burditt V. Swenson 
 
 308 
 
 Cadden v. Eastwick 
 
 
 372 
 
 Burgess v. Jefferson 
 
 3£9 
 
 Cady V. Watertown 
 
 
 374 
 
 V. Pue 176, 
 
 234, 590 
 
 Cahill V. Insurance Co. 
 
 
 51 
 
 Burke v. Elliott 
 
 716 
 
 Calais v. Dyer 
 
 
 579 
 
 V. Jeffries 
 
 20 
 
 Calaveras County v. Brockway 
 
 666 
 
 Burkholter v. McConuellsville 397 
 
 Caldwell v. Alton 55, 313 
 
 315 
 
 319 
 
 Burlington v. Gilbert 
 
 639, 783 
 
 V. Harrison 
 
 
 221 
 
 V. Kellar 
 
 287, 297 
 
 V. Justices 9, 104 
 
 106 
 
 590 
 
 Bumes v. Atchison 
 
 
 Calkins v. Baldwin 
 
 
 176 
 
 18, 23, 106, 107,606 
 
 610, 735 
 
 Callaghan v. Hallett 
 
 
 173 
 
 Burnett, Ex parte 
 
 
 Callenderv. Marsh 
 
 
 
 55, 287, 288 
 
 299, 337 
 
 543, 781 
 
 783, 
 
 784 
 
 V. Auditor 
 
 685 
 
 Cambridge v. Railroad Co. 
 
 
 
 V. Buffalo 
 
 469, 605 
 
 574 
 
 746 
 
 747 
 
 V. Sacramento 
 
 599, 639 
 
 Cambridge University v. Crofts 
 
 123 
 
 Bumham v. Boston 
 
 788 
 
 Camden v. Allen 
 
 653, 
 
 656 
 
 T. Chicago 
 
 635 
 
 V. Mnlford 
 
 
 
 V. Fond du Lac 
 
 65 
 
 476, 639. 
 
 740, 
 
 741 
 
 V. Sacramento 
 
 599, 639 
 
 Campan v. Detroit 476, 
 
 483, 
 
 483 
 
 Burns v. Clarion County 
 
 30,44 
 
 Campbell v. Kenosha 
 
 
 
 V. La Grange 357 
 
 365, 740 
 
 38, 41, 387 
 
 416 
 
 424 
 
 V. Railroad Co. 
 
 458 
 
 V. Polk County 
 
 
 
 Burrill v. Boston ' 
 
 
 406, 408 
 
 410, 
 
 413 
 
 13, 376, 378, 381 
 
 384, 385 
 
 V. Race 
 
 
 788 
 
 Burr's Trial 
 
 184 
 
 Canaan v. Derush 
 
 
 383 
 
 Burt V. Merchants' Ins. Co. 
 
 463 
 
 Canal Bank v. Supervisors 
 
 
 
 Burton v. Patten 
 
 716, 733 
 
 82, 407 
 
 409, 
 
 412 
 
 V. Railroad Co. 
 
 572 
 
 Canal Co. v. Graham 785, 
 
 789, 
 
 790 
 
 Bush V. Beavan 
 
 667 
 
 V. Hall 
 
 
 498 
 
 V. Johnston 
 
 500, 794 
 
 V. Railroad Co. 54,109,396 
 
 V. Seabury 
 
 319 
 
 V. State 
 
 
 579 
 
 V. Shipman 
 
 30, 34 
 
 V. Swann 
 
 
 398 
 
 V. "Whitney 
 
 449, 450 
 
 Canal Street, Matter of 
 
 368, 
 
 474 
 
 Bushnell v. Beloit 
 
 407 
 
 Canal Trustees v. Haven 
 
 494, 
 
 535 
 
 V. Insurance Co 
 
 17 
 
 V. People 
 
 
 684 
 
 Bussier v. Pray 
 
 173, 173 
 
 Canton v. Nist 
 
 
 263 
 
 Butchers' Co. v. Bullock 
 
 275, 349 
 
 Cardigan v. Page 
 
 
 304 
 
 V. Mercy 
 
 388 
 
 Carleton v. Bath 
 
 
 13 
 
 Butler V. Charlestown 
 
 57, 379 
 
 V. Iron Co. 
 
 
 778 
 
 V. Chicago 
 
 643 
 
 V. People 
 
 
 314 
 
 V. Dunham 104, 
 
 430, 434 
 
 Carlton v. Salem 
 
 730, 
 
 735 
 
 V. Milwaukee 
 
 399 
 
 Came v. Brigham 
 
 
 407 
 
 v. Muscatine 
 
 634 
 
 CarondolBt v. McPherson 
 
 
 514 
 
 V. Pennsylvania 
 
 168 
 
 Carpenter v. Ely 
 
 
 676 
 
 V. Toledo 
 
 653 
 
 V. Lothrop 
 
 418, 
 
 433 
 
 Butman v. Fowler 
 
 537 
 
 V. Railroad Co. 
 
 524, 
 
 557 
 
 Butolph V. Blust 
 
 347 
 
 Carpenter's Case 
 
 136, 
 
 699 
 
 Buttrick v. Lowell 
 
 
 Carr v. Northern Liberties 
 
 
 
 39, 93, 149, 385, 399, 760, 
 
 772, 773 
 
 63, 752, 783, 
 
 799, 
 
 801 
 
16 
 
 TABLE OF OASES CITED. 
 
 Carrv. St. Louis 170,353 
 
 Carrol v. Board of Police 
 
 413, 685, 761 
 
 Carroll v. Mayor 291, 740 
 
 y. St. Louia 173. 399 
 
 V. Tuscaloosa 391, 633 
 
 V. Tyler 173 
 
 Carrolton R. R Co. v. Winthrop 433 
 
 Carron v. Martin 639, 737, 740, 741 
 
 V. Bailroad Co. 536 
 
 Carter v. Bridge Proprietors 43, 44 
 
 V. Dow 293, 294, 594 
 
 V. Harrison 176 
 
 Case V. Hall 835 
 
 V. Mobile 50, 346, 348 
 
 Cass V. Bellows 232 
 
 V. Dillon 90, 104 
 
 Castleton v. Langdon 433, 436 
 
 Catholic Soc. v. New Orleans 751 
 
 Caulfleld v. State 151 
 
 Caverly v. Lowell 171 
 
 Central Bridge Corp. v. LoweU 208 
 
 Central Park, Matter of 4 
 
 Centralia v. Krouse 789, 790 
 
 Chad V. Tilsed 56 
 
 Chadbourne v. Newcasilile 760 
 
 Chaffee v. Granger' 371, 735 
 
 Chaboon's Case 357 
 
 Chamberlain v. Burlington 106, 393 
 
 V. Dover 
 
 305, 307, 232, 235 
 
 V. Sibley 
 
 Chambers v. St. Louis 47, 429, 432, 
 
 483, 435, 436, 437, 441, 444 
 
 V. Satterlee 599, 783 
 
 Chance v. Temple 698, 699, 712 
 
 Chancellor of Oxford's Case 131, 122 
 
 Chandler v. Boston 
 
 V. Bradish 
 Chapin v. Osborn 
 
 V. Bailroad Co. 
 V. School District 
 Chaplin v. Hill 
 Chapman v. Brooklyn 
 
 V. Gordon 
 
 V. Lowell 
 
 V. Miller 
 
 Charitv Hospital v. Stickney 291, 594 
 Charles v. Hoboken 191, 321 
 
 Charles River Bridge v. Warren Bridge 
 
 78, 784 
 Charleston v. Chur 
 Charlton v. Allegheny City 
 Chase v. Lowell 
 
 V. Merrimac Bank 
 Chaslain v. Town Council 
 Chatfleld v. Wilson 
 Chattanooga v. State 
 
 136, 127 
 158 
 668 
 405 
 
 122, 443 
 386 
 596 
 
 510, 533 
 403 
 67 
 
 846, 355 
 783 
 
 151, 171 
 763 
 397 
 781 
 746 
 
 Chaunt v. Smart 710 
 
 Cheany v. Hooser 136, 683, 760 
 
 Cheatham v. Shearn 808 
 
 Cheenery V. Waltham 135 
 
 Chegary v. Jenkins 176 
 
 Chemung Canal Bank v. Supervisors 
 
 372 
 
 Cheney v. Shelbyville 291 
 
 Chess V. Birmingham 604 
 
 Chestnut Ave. 638 
 
 Chicago V. Colby 616 
 
 V. Evans 245, 519, 714 
 
 V. Gallagher 788, 789 
 
 V. Halsey 446 
 
 V. Johnson 789, 790 
 
 V. Lauglass 789 
 
 V. Lamed 481, 603, 616 
 
 V. McGuin 579 
 
 V. Major 790 
 
 V. Martin 789 
 
 V. People 400, 401, 414, 653 
 
 V. Powers 579, 580 
 
 V. Quimby 278, 323 
 
 V. Bobbins 555, 557, 772, 
 
 789, 790, 791, 792, 794, 795 
 
 V. Sheldon 4166 
 
 V. Starr 790 
 
 V. Ward 652 
 
 V. Wheeler 472 
 
 V. Wright 605, 606, 610, 658 
 
 Child V. Boston 772, 801, 802 
 
 V. Hudson's Bay Co. 250 
 
 Childress v. Mayor 310 
 
 Chilton V. Railroad Co. 287 
 
 Chilvers v. People 79, 80, 293 
 
 Chisey v. Canton 763, 786 
 
 Choquette v. Barada 450 
 
 Christopher v. Mayor 385, 735 
 
 Church v. Baltimore 
 
 59, 352, 471, 476, 482 
 V. Cherryfleld 788 
 
 V. Hoboken 
 
 495, 503, 509, 513. 530, 533 
 V. McAfee 596, 616 
 
 V. New York 
 
 345, 249, 306, 616 
 
 V. Railroad Co. 519 
 
 V. Scholtze 510 
 
 V. Woodward 204 
 
 Church Case 215 
 
 Cincinnati v. Bryson 291, 292, 606 
 
 V. Buckingham 
 
 283, 292, 313, 606 
 V. Combs 469, 471 
 
 T. Commissioners 491 
 
 V. Evans 539 
 
 V. Gwynne 
 
 S8, 344, 268, 366 
 
TABLE OF CASES CITED. 
 
 17 
 
 Cincinnati v. Hamilton County 499 
 
 V. Morgan 418 
 
 V. Penny 544, 545, 783 
 
 V. Rice 330 
 
 V. Stone 790, 793, 793 
 
 V. Walls 74 
 
 V. White 491, 493, 494, 
 
 499, 501, 507, 534, 544 
 
 Cisco V. Roberts 67 
 
 City V. Alexander 104 
 
 V. Burgen 640 
 
 V. Clutch 291 
 
 V. Ferry Co. 80 
 
 V. Given 158, 174 
 
 V. Lawson 38, 41, 
 
 83, 405, 413, 416, 4166, 434 
 
 V. Wistor 640 
 
 City Council v. Ahrens 
 
 253, 260, 291, 299, 591 
 V. Benjamin 253, 330 
 V. Boyd 305 
 
 V. Church 
 
 106, 260, 299, 306, 613 
 V. Condy 613 
 
 V. Corlies 350 
 
 V. Dunn 350 
 
 V. Elford 338 
 
 V. Pechman 350 
 
 V. iJilmer 
 
 781, 799, 801, 803 
 V. Goldsmith 
 
 353, 395, 823 
 V. King 289, 360 
 
 V. Moorehead 130 
 
 V. Payne 93, 149 
 
 V. Pepper 389, 293, 360 
 T. Pinckney 618, 744 
 V. Plank Road 
 
 55, 329, 330, 373, 882 
 
 V. Seeba 847 
 
 V. Smidt 350 
 
 City Fire Ins. Co. v. Corlies 757 
 
 City Gas Co. v. Thurber 628 
 
 Claflin V. Hopkinton 100, 733 
 
 V. Iowa City 65 
 
 Clague V. New Orleans 773 
 
 Claibourne, Matter of 468, 469, 473 
 
 Clapp V. Cedar County 405 
 
 V. Hartford 50, 471, 596, 677 
 
 V. Walker 65 
 
 Clark T. City 104 
 
 V. Corinth 788 
 
 V. Cuckfleld Union 880 
 
 V. Davenport 55, 107, 610, 689 
 
 V. Des Moines 106, 381, 393, 
 
 405, 406, 407, 411, 412, 414, 
 
 419, 536, 580 
 
 V. Dutcher 751 
 
 Clark V. Fry 581, 793 
 
 V. Halleck 176 
 
 V. Janesville 83, 90, 265, 405 
 V. Lewis 101, 284 
 
 v. McCarthy 538, 539 
 
 V. Mayor 308, 403, 728 
 
 V. Norton 176 
 
 V. People 183, 717 
 
 V. Polk County 381, 406, 411 
 V. Potter County 123 
 
 V. Pratt 450 
 
 V. School Commissioners 
 
 65, 406, 407 
 
 V. Syracuse 308, 313 
 
 V. Tuckett 354 
 
 V. Utica 484 
 
 V. Washington 60, 374 
 
 V. Wilmington 800 
 
 Clark's Case 136, 190, 287 
 
 Clarke v. Bank 50 
 
 V. Blackmar 557, 558 
 
 V. Tanners, &c. Co. 133 
 
 V. Newport 473 
 
 V. Rochester 
 
 19, 28, 27, 104, 109 
 Clason V. Milwaukee 
 
 253, 259, 261, 371 
 
 Clay V. County 108, 433 
 
 Clayburg v. Chicago 778 
 
 Clayton v. Heidelburg 744, 745 
 
 Cleino v. Railroad Co. 616 
 
 Clemens v. Anderson 539 
 
 Clemsford County v. Demorest 155 
 
 Gierke v. Tucker 287, 656 
 
 Cleveland v. Gas Light Co. 308 
 
 V. St. Paul 790 
 
 V. Wdck 481, 596 
 
 Clifton V. Cook 136 
 
 Clinton v. Railroad Co. 43, 496, 518, 
 
 519, 555, 356, 559, 560, 563, 570, 574 
 
 Clintonville v. Keeting 54, 399 
 
 Clough V. Hart 399 
 
 v. Unity 473 
 
 Clute V. Bond County 785 
 
 Coates V. New York 
 
 93, 806, 343, 348 
 
 Cobb V. Kingman 138 
 
 V. Portland 773 
 
 V. Standish 788, 789 
 
 Coburn v. BUemwood 451 
 
 Cochran v. McCleary 144, 148, 
 
 193, 310. 311, 214, 680, 713, 714 
 
 Cockburn v. Bank 240 
 
 Cocke V. Halsey 159 
 
 Codding v. Mansfield 91 
 
 Coffin V. Field 101 
 
 V. Nantucket 60, 221, 757 
 
 7, State 168 
 
18 
 
 TABLE OF CASES CITED, 
 
 Cofran v. Cochran 451 
 
 Ooggeshall v. New Rochelle 443 
 
 Cogshall V. Pelton 436, 442 
 
 Cogswell V. Lexington 788 
 
 Cohen v. Wigfall 134 
 
 Coker v. Birge 308 
 
 Colbeck V. Brantford 785 
 
 Colchester v. Brooke 
 
 109, 110, 113, 116 
 V. Godwin 354 
 
 V. Lowton 445 
 
 V. Seaber 
 
 109, 110, 118, 116 
 
 Cold Spring, &c. v. Tolland 124 
 
 Cole v. Green 446 
 
 V. Medina 752 
 
 V. Muscatine 783, 784 
 
 Y. Nashville 755, 768 
 
 Coleman v. Neal 685 
 
 V. Railroad Co. 756 
 
 Coles V. Madison County 30, 32 
 
 V. Williamsburg 199, 217 
 
 Coles County v. Allison 136, 222 
 
 Colgrove V. Breed 176 
 
 Colkingv. Baldwin 480 
 
 Collector v. Day 615a 
 
 V. Hubbard 384, 751 
 
 Collins V. Council Bluffs 788, 789 
 
 V. Dorchester 242 
 
 V. Hatch 55, 250, 354, 263 
 
 V. Louisville 
 
 391, 323, 606, 610 
 
 V. State 161 
 
 Colton V. Hanchett 58 
 
 V. Eosgi 480 
 
 Columbia v. Duke 330 
 
 V. Harrison 342, 850 
 
 V. Hunt 273, 605, 606 
 
 Columbia Bridge v. Kline 437 
 
 Columbia County v. King 
 
 416, 685, 688, 696 
 Columbus V. Arnold 8 
 
 V. Dahn 494, 504 
 
 V. Grey 74, 76 
 
 V. Jacques 508, 520, 521 
 V. Storey 609 
 
 V. Woolen Mill Co. 
 
 784, 802 
 Colwell V. Piden 751 
 
 Comber v. Taunton 788 
 
 Comer v. Polsom 103 
 
 Commercial Bank v. lola 
 
 34o, 1056, 106, 416J, 592 
 Commissioners v. Ashville 335 
 
 V. Bowie 480 
 
 v. Boyd 509, 522 
 
 V. Bright 405 
 
 Y. Butt 719 
 
 Commissioners v. Cox 381 
 
 V. Day 406, 411 
 
 V. Duckett 89 
 
 V. Gas Co. 233, 518, 
 527 
 V. Harris 275, 802 
 V. Hudson 551 
 
 V. Keller 406, 411 
 V. Lecky 221 
 
 V. Lynch 667, 668 
 V. Mason 413 
 
 • V. Mighels 55 
 
 V. Neil 74 
 
 V. Nesbitt 176 
 
 V. Nichols 430 
 
 V. Patterson 682 
 
 V. Perry 176 
 
 V. People 699 
 
 V. Powe 805 
 
 V. Sandusky Co. 678 
 V. Tarver 331, 705, 706 
 V. Taylor 585 
 
 V. Van Sickle 308 
 V. Wood 783, 799, 802 
 Commonwealth v. Alburger 491, 494, 
 499, 504, 508, 512, 
 530 
 V. Alger 67, 71, 93 
 V. Alleghany County 
 446, 662; 663, 665, 
 666, 685, 688, 694, 
 695, 696, 705, 706 
 V. Arrison 210 
 
 V. Athern 239 
 
 V. Bacon 170 
 
 V. Bank 210 
 
 V. Baxter 144, 716 
 V. Bean 255, 335, 847 
 V. Bilden 500, 505 
 V. Binns 166 
 
 V. Blaisdell 531, 585 
 V. Borden 347 
 
 V. Boston 552 
 
 V. Bowman 816 
 
 V. Breed 465 
 
 V. Bridge Proprietors 
 746 
 V. Brooks 588 
 
 V. Cambridge 461 
 V. Charleston 467 
 V. Chase 241 
 
 V. Cluley 
 
 135, 713, 716, 722 
 
 V. Commissioners 186, 
 
 231, 430, 480, 683. 
 
 685 
 
 T. Conely 176 
 
 V. CuUen 110 
 
TABLE OF CASES CITED. 
 
 19 
 
 Commonwealth v. Curtis 335, 038 
 V. Dallas 146, 147, 357 
 V. Dearfleld 579 
 
 V. Dennison 663 
 
 V. Dow 398, 351 
 
 V. Dugan 149 
 
 V. Duquet 345 
 
 V. Ellis 739 
 
 V. Emery 366 
 
 V. Faliey 
 
 306, 345, 347, 349 
 V. Ford 166 
 
 V. Fowler 718, 736 
 V. Garrigues 144, 71 5 
 V. Gas Co. 361 
 
 V. Gay 347 
 
 v> Genther 175 
 
 V. German Society 
 
 191, 193 
 V. Gill 717 
 
 V. Goodrich 
 
 356, 306, 313 
 V. Gray 345 
 
 V. Guardians 181, 189 
 V. Hall 763 
 
 V. Hastings 149 
 
 V. Henry 669 
 
 V. Hitching 354 
 
 V. Hopkinsville 747 
 V. Huhn 141 
 
 V. Ipswich 315 
 
 V. Johnson 6 
 
 V. Jones 
 
 184, 713, 733, 736 
 V. Judges 33 
 
 V. Lancaster 336, 685 
 V. Leech 
 
 13!b, 148, 144, 715 
 V. Locke 33 
 
 V. Low 500, 505 
 
 V. Lowell Gas Co. 638 
 V. Lyndall 706 
 
 V. Mann 170 
 
 V. Markham 361, 606 
 V. McCloskey 141 
 368, 715 
 V. McDonald 504, 530 
 V. McWilliams 104 
 V. Meeser 
 
 143, 714, 715, 723 
 V. Millman 531 
 
 V. Mlton 591 
 
 V. Montrose 30 
 
 V. Painter 38 
 
 V. Passmore 557, 581 
 V. Patch 355, 361 
 
 Commonwealth v. Pensylvania Insti- 
 tute 191, 193 
 V. Perkins 
 
 104,446, 685 
 V. Philadelphia 
 
 153, 190 
 
 V. Pindar 366 
 
 V. Pittsburgh 83, 83, 
 
 107, 151, 327, 407, 
 
 426, 610, 662, 665, 
 
 669," 684, 685, 688, 
 
 689, 698, 699, 701, 
 
 705, 709, 720 
 
 T. Eaih-oad Co. 555, 
 
 557, 560, 561, 562, 
 
 570, 713, 719, 746 
 
 V. Read 360 
 
 V. Rice 320 
 
 V. Roark 366 
 
 V. Robertson 
 
 353, 361, 336, 353 
 V. Roxbury 
 
 9, 11, 73, 74, 113 
 
 T. Rush 316, 507, 
 
 508, 513, 520, 531 
 
 V. Ryan 360 
 
 V. Sawin 461 
 
 V. Shaver 183 
 
 v. Sherman 458 
 
 V. Small 680 
 
 V. Smead 736 
 
 V. Smith 723 
 
 V. Springfield 786 
 
 V. Stiffee 258 
 
 V. Stodder 258, 261, 
 
 291, 398, 394, 395, 
 
 303, 326, 353 
 
 V. St. Patrick's Soc. 
 
 178, 181, 183, 189 
 
 V. Sutherland 
 
 ■ 181, 183, 188 
 
 V. Taylor 505, 709 
 
 V. Temple 573 
 
 V. Turner 55, 244, 
 
 350, 353, 298 
 
 V. Union Ins. Co. 109 
 
 V. Wentworth 521 
 
 V, "Wilmington 788 
 
 v. Woelper 134 
 
 V. Wolbert 155 
 
 v. Woods 481, 491 
 
 V. Worcester 52, 361, 
 
 326, 345, 347 
 
 Company v. State 579 
 
 Conboy v. Iowa City 365, 346, 368 
 
 Concord v. Boscawen 435 
 
20 
 
 TABLE OP CASES CITED. 
 
 Concord R. E. v. Greely 465 
 
 Cone V. Hartford 481,596,644,646,647 
 Congot V. New Orleans 313, 318 
 
 Congregational Soc. v. SpeiTyl58,204 
 Congreve v. Morgan 794 
 
 V. Smith 794 
 
 Conklin v. Commissioners 735 
 
 476, 
 
 132 
 
 483 
 
 33 
 
 168, 170 
 
 80 
 
 Connden v. Gierke 
 Connelly v. Griswold 
 Conner v. Bent 
 V. Mayor 
 V. New Albany 
 Connersville v. Bank 639 
 
 Connor v. Morris 685 
 
 Conrad v. Ithaca 
 
 63, 763, 778, 789, 790, 802 
 Conservators v. Ash 31, 32 
 
 Converse v. United States 173 
 
 Conwell V. Emrie 174, 756 
 
 Cook V. Boston 751 
 
 V. Buffalo 86 
 
 V. Burlington 495,497,503,511, 
 533, 545, 558, 564 
 
 738, 751 
 113, 114 
 693 
 295 
 108 
 35 
 515 
 407 
 
 105, 
 
 501, 
 
 787 
 
 707 
 
 504 
 
 106 
 
 788 
 
 382 
 
 737 
 
 67 
 
 757, "rSS 
 
 18, 55 
 
 511 
 
 V. Charlestown 
 
 V. Freeholders 
 
 V. Hillsdale 
 
 V. Manufacturing Co. ■ 
 
 V. Milwaukee 
 
 V. Shipman 
 
 Cook County v. Railroad Co, 
 
 Cooley V. Board of Wardens 
 
 V. Freeholders 579, 
 
 V. Granville 
 
 Coolidge V. Learned 
 
 Coombs V. Purrington 788, 789 
 
 Cooper V. Alden 508, 522 
 
 V. Dismal Swamp Co. 664 
 
 V. Lampeter 221 
 
 V. Reansbey 221 
 
 V. Savannah 654 
 
 V. Smith 534 
 
 Copeland v. Packard 461 
 
 Copes V. Charleston 104, 106, 424 
 
 V. Mathews 176 
 
 Copp V. Neal 45] 
 
 Cordiell v. Frizzell 159 
 
 Corfleld v. Coryell 591 
 
 Cornell v. Barnes 155 
 
 V. Guilford 
 
 20, 100, 176. 373, 381 
 Cornell College v. Iowa County 735 
 
 Coming v. Green 
 Cornish v. Pease 
 Corporation, Re 
 
 V. Scott 
 Corwein v. Hames 
 Corwin v. Wallace 
 Costar V. Brush 
 
 33,35 
 
 206 
 
 398, 437 
 
 74 
 
 360 
 
 386 
 
 Cotes V. Davenport 783, 801 
 
 Cotter V. Doty 273, 279, 285 
 
 Cotton V. Ellis 168, 671 
 
 V. County Commissioners 104 
 Coulson V. Portland 
 
 58, 88, 476, 733, 737, 
 Coulter V. Robertson 
 County V. Amy 
 
 V. Brinthall 
 V. Brinton 
 V. County 
 • V. Newport 503, 508, 
 County Commissioners v. Carter 
 
 V. Chitewood 
 238 
 V. Cox 109, 
 113. 114, 413 
 V. Dayton 508 
 V. Duckett 
 
 669, 789 
 V. Gibson 761 
 V. Holcomb 
 
 579 
 
 V. Jones 221 
 
 V. Lathrop 
 
 491, 508, 513, 514, 533 
 
 County Court v. County Court 127 
 
 V. Quarter Sessions 23 
 
 V. Simmons 176 
 
 V. State . 85 
 
 Coventry's Case 709 
 
 Covill V. Phy 366 
 
 Covington v. Boyle 247, 596 
 
 V. Bryant 790 
 
 V. Casey 639 
 
 V. Ludlow 
 
 332, 234, 235, 347 
 535 
 
 Cowan's Case • 
 Cowdin V. Huff 
 Cowen V. West Troy 
 Cowles V. Brittian 
 
 V. Gray 
 Cowley V. Sunderland 
 Cox V. Griffin 
 
 V. St. Louis 
 Coy V. Lyons 
 Craft V. Jackson County 
 Craig V. Burnett 
 
 V. Railroad Co. 
 
 V. Vicksburg 
 Crandeil v. Amador 
 V. Nevada 
 Crane v. Fond du Lac 
 
 V. Janesville 
 Cranford v. Powell 
 Crangle v. Harrisburg 
 Crawford v. Delaware 
 
 61, 78'Crawford County v. Wilson 
 
 168 
 
 253, 471, 642 
 
 591 
 
 504, 511 
 
 772, 779, 780 
 
 510, 530 
 
 346 
 
 685, 686, 689 
 
 735 
 
 176 
 
 573 
 
 405 
 
 667 
 
 591 
 
 446 
 
 610 
 
 389 
 
 480 
 
 783 
 
 406, 410 
 
 564, 
 
TABLE OF CASES CITED. 
 
 21 
 
 Crawshaw v. Koxbury 91, 385 
 
 Creal v. Keokuk 543, 783 
 
 Creamer v. Bates 401 
 
 Creighton v. Manson 364, 596 
 
 V. Piper 146 
 
 V. Scott 596, 635, 638 
 
 V. Toledo 491 
 
 Cresson's Appeal - 437 
 
 Crist V. Town Trustees 321 
 
 Crockett v. Boston 461, 495 
 
 Crommett v. Pearson 331, 335 
 
 Cronan v. Municipality 400 
 
 Crosby v. "Warren 373, 285, 308 
 
 Cross V. Morristown 
 
 384, 387, 539, 530, 535, 610, 737 
 Crossoett v. Janesville 764, 769, 784 
 Crowley v. Sunderland 803 
 
 Croydon Hospital v. Farley 132 
 
 Cruger V. Eailroad Co. 471,483,484 
 Cruikshanks v. City Council 
 
 481, 618, 596, 618 
 
 Crupps V. Darden 377 
 
 Culbertson v. Cincinnati 735 
 
 Cumberland v. Magruder 54, 89, 107 
 
 Cuming v. Prang 544 
 
 Gumming v. Mayor 169, 481, 680, 647 
 
 V. Police Jury 594 
 
 Cunningham v. Squires 368, 403, 740 
 
 Curran v. Arkansas 113, 114 
 
 V. Shattuck 480 
 
 Currier v. Lowell 796 
 
 Cuiry V. Bank 130 
 
 V. Mt. Sterling 467, 471 
 
 Curtis V. Butler County 106, 321, 407 
 
 V. Fiedler 384 
 
 V. Hope 505 
 
 V. Keesler 491 
 
 V. Leavitt 83, 407 
 
 V. Portland 376 
 
 V. Whipple 1055 
 
 Gushing v. Frankfort 194, 314 
 
 Gushman v. Smith 478 
 
 Cuthbert v. Gonley 397 
 
 V. Lewis 685 
 
 Gutting V. Stone 124 
 
 Guyler v. Rochester 381, 418, 768 
 
 Daily v. State 
 Dale County v. Gunter 
 Dallam v. Oliver 
 Dalrymple v. Whittington 
 Dalton T. Northampton 
 Dalzell V. Davenport. 
 Dameron v. Irwin 
 
 146 
 760 
 659 
 406 
 483 
 784 
 176 
 
 Damon v. Granby 23, 199, 215, 321, 
 337, 876, 377, 380, 407 
 
 Dana v. Jackson 70 
 
 V. San Francisco 406 
 
 V. Wharf Co. 433 
 
 Dane v, Derby 706, 713 
 
 Danforth v. Schoharie Turnpike Co. 
 
 383 
 
 Daniel v. Mayor 399 
 
 V. Memphis 47, 53 
 
 V. Potter 794 
 
 Daniels v. Biirford 175 
 
 V. Wilson 507 
 
 D'Antignac v. Augusta 610 
 
 Danville v. Sutherlin 414 
 
 Dargan v. Mobile 773, 775 
 
 V. Waddell 308 
 
 Darlington v. Commonwealth 
 
 338, 269, 471, 499, 502, 685 
 V. New York 
 
 30, 39, 40, 43, 760, 779 
 Darst V. People 308 
 
 Dart V. Houston 84 
 
 Dartmouth College v. Woodward 
 
 9a, 30, 40, 47 
 
 Dashiell v. Attorney General 440 
 
 Davenport v. Bii-d 302, 343, 844, 358 
 
 V. Hallowell 372, 376 
 
 V. Insurance Go. 
 
 132, 883, 446 
 V. Kelly 818, 819 
 
 V. Railroad Co. 
 
 558, 594, 613, 629 
 
 V. Ruckman 789, 790, 791 
 
 V. Stewart 556 
 
 Davenport Gas Co. v. Davenport 88 
 
 Davidson v. Ramsey County 104 
 
 Davis V. Bangor 
 
 530, 531, 747, 787, 788 
 V. Bath , 18 
 
 V. Dudley 788 
 
 V. Hill 788 
 
 V. Leominster 796 
 
 V. Mayor 
 
 521, 522, 566, 567, 735 
 V. New York 61, 557 
 
 V. Proprietor of Meeting House 
 82 
 V. Sabita 503 
 
 V. School District 386 
 
 V. State 28, 302 
 
 V. Woolnough 2gf, 857 
 
 Davison College v. Chambers 
 
 432, 433, 444 
 
 Day -v. Green 60, 331, 391, 327,770 
 
 V. Milford 789 
 
 Dayton v. Pease 753, 776, 797 
 
 Dean v. Borchenius 389, 686, 651, 669 
 
 V. Charlton 889, 390, 730 
 
22 
 
 TABLE OF OASES CITED. 
 
 Dean v. Gleason 594,605,616,617, 738 
 
 V. Todd 58, 737 
 
 De Armas v. Mayor 514 
 
 Deaton v. Polk County 488 
 
 De Baum v. Mayor ' 735 
 
 De Ben v. Girard 256 
 
 Debolt V. Cincinnati^ 173 
 
 V. Fisher 789, 799 
 
 Decatur v. Paulding 670 
 
 Decorah v. Bullis 211, 214 
 
 V. Gillis 351 
 
 De Cordova v. Galveston 405, 412 
 Deeds v. Sanborn 634 
 
 Deford v. Mercer 458 
 
 De Grave v. Monmouth 214, 885 
 
 De Groot, Ex parte 670 
 
 Deiman v. Fort Madison 634 
 
 Delabigarre v. Municipality 514, 531 
 Delacey v. Neuse 683 
 
 Delafield v. lUinois 
 
 14, 872, 385, 387, 407 
 Delmonico v. New York 777 
 
 Delphi T. Evans 
 
 229, 237, 238, 548, 544, 610, 639, 783 
 
 Den V. Vreelandt 130 
 
 Denning v. Roome 229, 341, 494, 780 
 
 Dennis v. Hughes 469 
 
 V. Maynard 35 
 
 Denton v. Jackson 20, 481,435, 735 
 
 De Pauw v. New Albany . 588 
 
 Dermont v. Detroit 801, 802 
 
 De Russey v. Davis 55 
 
 Des Moines v. Casady 660 
 
 V. Hall 491, 492,496,505, 
 
 535, 545 
 
 V. Layman 483 
 
 Desmond v. McCarty 239 
 
 Detroit v. Blakeby 765, 785, 789, 790 
 
 V.Corey 39^791,793,802 
 
 V. Jackson 874, 385 
 
 V. Plank Road Co. 519, 537 
 
 V. Railroad Co. 491, 498, 499, 
 
 500, 503, 505, 533 
 
 V. Redfield 173 
 
 De Varaigne v. Fox 456 
 
 De Vaux v. Detroit 528 
 
 Devor v. McClintock 139 
 
 Devore's Appeal 126 
 
 De VosB V. Richmond 
 
 39, 83,. 405, 419, 749 
 Devoy v. New York 169 
 
 Dew V. Parsons 751 
 
 Dewey V. Detroit 790 
 
 De Witt V. San Francisco 92, 433 
 Dey V. Jersey City 
 
 197,309,331,265,373 
 Dey V. Lee 176, 238 
 
 De Zeng v. Beekman 450, 451 
 
 Diamond v. Cain 84 
 V. Lawrence County 405 
 
 Dibolt V. Insurance Co. 61. 
 
 Dickenson v. Fitchburg 487 
 
 Dickey v. Hurlburt 136 
 
 Dietz V. City 18, 297, 347 
 
 Diggle V. Railroad Co. 873 
 
 Dighton's Case 157 
 
 Dill V. Inhabitants 372 
 
 V. Roberts 652 
 
 V. Wareham 13,381, 882,750,770 
 
 Dillin^am v. Snow 
 Dingley v. Boston 
 Dingman v. People 
 Dively v. Csdar Falls 
 Divine v. Harris 
 Dix V. Dummerston 
 Dixon V. Cincinnati 
 Dodd V. Hartford 
 
 V. Miller 
 Dodge V. Commissioners 
 V. Gridley 
 
 13, 51 
 
 308, 456, 463 
 
 61 
 
 88, 406, 580 
 
 671 
 
 398 
 
 476, 740 
 
 58, 737, 738 
 
 14 
 
 480 
 
 289 
 
 491, 503, 507 
 658 
 494, 497, 501, 514 
 118 
 788 
 616 
 555, 564 
 802 
 381 
 382 
 
 Doe V. Attica 
 V. Chunn 
 V. Jones 
 V. Norton 
 Doherty v. Waltham 
 Dolan V. Baltimore 
 Donnaher v. State 
 Donohue v. New York 
 Donovan v. New York 
 V. Vicksburg 
 Doolittle V. Supervisors 
 
 738, 730, 733, 785 
 
 Dorathy v. Chicago 649 
 
 Dorchester v. Wentworth 476, 740 
 
 Dorgan v. Boston 367, 481, 596 
 
 Dorlon v. Brooklyn 790 
 
 Dorman v. Jacksonville 783 
 
 Dorsey v. Smith 174 
 
 Dougherty v. Hitchcock 610 
 
 Doughty V. Hope 402, 470 
 
 V. Railroad " • 470 
 
 Douglas, Re 246 
 
 V. Branch Bank 121 
 
 V. Commonwealth 338 
 
 V. Placerville 55, 784 
 
 V. State 174 
 
 V. Virginia City 82,371,407 
 
 Doulson V. Clinton City 790 
 
 Dovaston v. Payne 490, 524 
 
 Dover v. Fox 491, 507 
 
 V. Twombly 155 
 
 Dover St., Re 473 
 
 Dow V. Bullock 158 
 
 Downer v. Boston 637, 645 
 
 Downing v. Marshall 436 
 
 V. Rugar 176, 231, 334 
 
TABLE OF CASES CITED. 
 
 23 
 
 Dows V. Chicago 727, 737, 738 
 
 Doyle V. Falconer 184 
 
 Draining Co.'s Case 
 
 463, 481, 594, 600, 617 
 
 Drake V. Lowell 789 
 
 v. Phillips 607, 734 
 
 V. Railroad Co 562, 564 
 
 Dronberger v. Reed 480 
 
 Drugo, Re 389 
 
 Drury v. Worcester 788 
 
 Dublin V. Mayor 443, 520 
 
 Dubois V. Augusta 250, 253, 304 
 
 v. Budlong 308 
 
 T. Campan 658 
 
 V. Canal Co. . 377 
 
 Dubuque v. Benson 492, 496, 545 
 
 V. Harrison 656 
 
 V. Insurance Co. 621, 629 
 
 V. Maloney 
 
 494, 496, 503, 520, 525 
 V. MUler 318, 323 
 
 V. Rebman 368 
 
 T. Stout 74, 76 
 
 V. Wooten 246, 471, 643 
 Dubuque College v. Township 
 
 385, 387 
 Dubuque County v. Railroad Co. 
 
 90, 104 
 
 Duckwall V. New Albany 80 
 
 Dudley v. Frankfort 529, 538 
 
 " V. Trustees 728 
 
 V. Weston 242 
 
 DufEey v. Tilton 522 
 
 Duffield V. Detroit 476 
 
 Duffleld's Case 683 
 
 Duffy v. Baltimore 760 
 
 Dugan T. Baltimore 74, 653, 656 
 
 v. United States 153, 176 
 
 Duggen V. McCruder 742 
 
 Duke V. Rome 757 
 
 Dumesnil v. Dupout 308, 312 
 
 Dummer v. Jersey City 
 
 494, 499, 510, 520, 533 
 
 Dunbar v. San Francisco 757 
 
 Duncan v. Louisville 473 
 
 V. Niles 176 
 
 Dunham v. Rochester 
 
 353, 361, 379, 391, 293, 395, 319 
 Dunion v. People 491 
 
 Dunlap v. County 655 
 
 Dunleith v. Reynolds 635 
 
 Dunn V. Charleston 457, 464 
 
 V. Rector 383 
 
 Dunning v. Aurora 532 
 
 V. Railroad Co. 51 
 
 Dunnovan v. Green 
 
 43, 90, 108, 424, 603. 738 
 
 Durach's Appeal ' 30, 34, 633 
 
 Durant v. Jersey City 643 
 
 V. Kauifman 633 
 
 V. Palmer 794, 795 
 
 V. Supervisors 653 
 
 Durfey v. Hoag 236 
 
 Durgin v. Lowell 501 
 
 Durkee v. Janesville 607 
 
 Durkin v. Troy 789 
 
 Dussean v. Municipality 476, 743 
 
 Dutton V. Strong 68, 69, 70, 311 
 
 Dwight V. Commissioners 487 
 
 V. Springfield 
 
 476, 740, 741, 742 
 Dyckman v. Mayor 469, 470, 605 
 
 Dyer v. Wightman^ 488 
 
 Dygert v. Schenck 579, 794 
 
 E 
 
 Eager, Re 389, 610, 635 
 
 Earle's Case 189, 190 
 
 East Anglian R. Co. v. Eastern Coun- 
 ties R. Co. 749 
 East Hartford v. Hartford Bridge Co. 
 31, 78, 80 
 East Kingston v. Towle 101 
 Eastman v. Meredith 
 
 13, 15, 77,762, 763, 777, 780,786 
 
 East Missouri v. Horseman 175 
 
 Easton v. Callender 176 
 
 Road in 537 
 
 East St. Louis v. St. John 468 
 
 V. Wehrung 
 
 60, 291, 297 
 
 V. Wider 668 
 
 Eaton V. Railroad Co. 784 
 
 V. State 736 
 
 Ebbw Vale Co. 749 
 
 Edenton v. Wool 357 
 
 Edgar v. Dodge 739 
 
 Edgerton v. Huflf 468 
 
 V. Municipality 31, 64 
 
 Edmunds v. Gookin 136 
 
 Edwards v. Railroad Co. 343 
 
 v. Vesey 340 
 
 Egleston v. City Council 357 
 
 Egyptian Levee Co. v. Hardin 
 
 481,596,616 
 Egypt St. 63, 54 
 
 Eidemiller v. Wyandotte City 476 
 Ela V. Smith 147, 148 
 
 Elder v. Dwight Manuf'g. Co. 366 
 Eldred v. Seaton 176 
 
 Eldridge v. Smith 464 
 
 Elkins V. Atheam 669 
 
 Elliott V. Concord 796 
 
24 
 
 TABLE OF CASES CITED. 
 
 Elliott V. Philadelphia 
 
 773 
 
 V. Eailroad Co. 
 
 573 
 
 T. Swartout 
 
 177,751 
 
 Ellis V. Iowa City 
 
 789, 799 
 
 T. State 
 
 14 
 
 Ellison, Ex parte 
 
 744 
 
 EUwood V. Bullock 
 
 354 
 
 Elmendorf v. Ewen 
 
 110, 147 
 
 V. Mayor 110, 
 
 124, 129, 
 
 158,329 
 
 , 265, 743 
 
 Elston V. Chicago 
 
 751 
 
 V. Crawfordsville 
 
 126 
 
 Elwell V. Greenwood 
 
 522 
 
 Ely V. Rochester 
 
 92 
 
 v. Supervisors 
 
 810, 760 
 
 Embury v. Connor 
 
 
 456,458,459,467,470 
 
 Emerson v. Blairsville 
 
 84 
 
 T. Newberry 
 
 385 
 
 Emery v. Gas Co. 
 
 
 481,599,605,616,648 
 
 V. Lowell 
 
 802 
 
 V. Mariavllle 
 
 406 
 
 V. Washington 
 
 505 
 
 English V. Chicot County 
 
 106 
 
 Episcopal, &c. Soc. t. l^is 
 
 copal 
 
 Church 
 
 120, 385 
 
 Erie v. Canal Co. 
 
 30,43 
 
 V. Knapp 
 
 65 
 
 V. Schwlngle 
 
 776, 789 
 
 Ernst V. Kunkle 
 
 783 
 
 Eschback v. Pitts 
 
 655, 659 
 
 Estabrook v. State 
 
 590 
 
 Estep V. Keokuk Co. 
 
 381 
 
 Estes V. School District 
 
 13 
 
 Bstey V. Westminster 
 
 387 
 
 Estwick V. London 
 
 699 
 
 Ethridge v. Hill 
 
 726 
 
 Evan V. Avon 
 
 780 
 
 Evans v. Erie County 
 
 529, 530 
 
 V. Evansville 
 
 499, 508 
 
 V. Philadelphia Club 
 
 178,181,189,190 
 
 V. Trenton 172, 176 
 
 Evansville v. Evans 494 
 
 V. HaU 626, 629 
 
 V. Paige 501 
 
 V. Pfisterer 738 
 
 Everett v. Grapes 308 
 
 Ewbanks t. Ashley 269, 343, 844, 358 
 
 Ewing V. Pilley 139, 144, 361, 868 
 
 V. Tompson 143 
 
 V. St. Louis 
 
 476, 727, 738, 739, 740 
 Exchange Alley, Matter of 468, 469 
 Exchange Bank v. Hines 622 
 
 Exeter v. Glyde 
 Eson V. Starre 
 
 Express Co. v. EUyson 594 
 
 Eyman v. People 748 
 
 Facey v. Fuller 210 
 
 Fair v. Moore 147, 376 
 
 Pairchild v. Railroad Co. 406, 408 
 Fairfield v. Ratcliff 605, 606 
 
 Fallen v. Boston 789 
 
 Falmouth v. Watson 609 
 
 Fane's»Case 180 
 
 Fanning v. Gregorie 80, 374 
 
 Farnum v. Concord 786, 789 
 
 Farrar r. Greene 788 
 
 Farrell v. Mayor 778, 801 
 
 Farrelly v. Cincinnati 789 
 
 Farwell v. Cambridge 487 
 
 Fauntleroy v. Hannibal 50 
 
 Fauvia v. New Orleans 760 
 
 Fawcett v. Charles 181, 188 
 
 Fay, Petitioner 58, 80 
 
 V. Noble 82 
 
 Fayette v. Shafroth 366 
 
 Fazakerly v. Wiltshire 272 
 
 Fellows V. Gilmau 155 
 
 Feltmakers v. Davis 253 
 
 Felts V. Mayor 433 
 
 Fenelon's Petition 596 
 
 Fennel, Re v75, 819 
 
 Feunimore v. New Orleans 778 
 
 Ferguson v. Chittenden County 230 
 V. Earl of Kinnoul 193 
 
 Pernald v. Lewis 762 
 
 Ferwald v. Boston 783 
 
 Fetterly v. Russell 384 
 
 Field V. Commonwealth 
 
 174, 188, 680 
 
 V. Girard CoUege 146, 188 
 
 Fifth St., Matter of 783 
 
 Findler v. San Francisco 450 
 
 Fink V. Milwaukee 345, 347, 358 
 
 Pinley v. Eietrick 126 
 
 V. Ihiladslphia 625 
 
 Finnell v. Kates 542, 649 
 
 Finney v. Oshkosb 431 
 
 Fire Department v. Helfenstein 229 
 
 V. Kip 33, 51 
 
 v. Milwaukee 594 
 
 V. Wright 591 
 
 First Cong. Soc. v. Atw^ter 443 
 
 V. Hartford 751 
 
 First Parish v. Cole 123 
 
 V. Steams 
 
 138, 315, 222, 289 
 
 Fish V. R. R. Co. 573 
 
 192 'Fisher v. Baird 494, 508 
 
 16 i I V. Boston 757, 758, 772, 774 
 
TABLE OF CASES CITED. 
 
 as 
 
 Eisherv. Graham 
 
 365 
 
 Fowle V. Alexandria 53, 753, 755, 763 
 
 V. Harrisburg 
 
 
 Fowler v. Pierce 
 
 671, 706 
 
 253, 261, 372 
 
 544, 644 
 
 V. St. Joseph 
 
 738 
 
 V. McGirr 
 
 354 
 
 Fox V. Hart 
 
 531 
 
 V. Prowse 
 
 . 795 
 
 V. Northern Liberties 
 
 779 
 
 V. School District 
 
 321, 386 
 
 T. Rook ford 
 
 536 
 
 V. Thirkell 654 
 
 , 794, 795 
 
 V. State 
 
 302 
 
 V. Vaughn 
 
 252 
 
 Franey v. Miller 
 
 491 
 
 Fiske V. Hazzard 
 
 103 
 
 Frank v. San Francisco 
 
 53, 686 
 
 Fitch V. Pinckard 
 
 
 Frankford R. Co. v. Philadelphia 
 
 51, 55, 350, 
 
 610, 620 
 
 
 391, 293 
 
 Pitzgibbon v. Toronto 
 
 533 
 
 Frankfort Bridge Co. v. Frankfort 
 
 Fitzhugh V. Custer 
 
 698 
 
 
 383, 384 
 
 Flagg V. Palmyra 430, 
 
 433, 688 
 
 Franklin v. Pisk 
 
 799 
 
 V. Worcester 782, 
 
 783, 797, 
 
 Frazier v. WarBeld 
 
 57, 334 
 
 799 
 
 801, 803 
 
 Frederick v. Augusta 
 
 
 Fleckner v. U. S. Bank 
 
 374 
 
 46, 106, 337 
 
 , 621, 736 
 
 Fleming, Ex parte 
 
 663 
 
 V. Goshen 
 
 733 
 
 V. Mershon 
 
 734, 737 
 
 Freedom v. Ward 
 
 579 
 
 Fleming's Appeal 
 
 97 
 
 Freeholders V. Barber 
 
 291, 609 
 
 Flemingsburg v. Wilson 
 
 521 
 
 V. Strader 746 
 
 , 760, 762 
 
 Fletcher v. Auburn, &c..R. 
 
 B. Co. 
 
 Freeland v. Hastings 
 
 103, 1055 
 
 
 524 
 
 V. Muscatine 
 
 783 
 
 V. Lowell 
 
 148 
 
 Freeman v. Cornwall 
 
 176 
 
 V. Oshkosh 
 
 401 
 
 Freeport v. Bristol 
 
 , 461 
 
 V. Peck 
 
 208; V. Marks 
 
 248 
 
 V. Railroad Co. 
 
 557, 564 French v. Commissioners 
 
 476 
 
 Flint T. Clinton Co. 
 
 450 
 
 V. Quincy 93, 436, 
 
 455, 508, 
 
 Flint River Steamboat v. Foster 344 
 
 
 516 
 
 Flournoj v. JefEers,onville 
 
 401, 651 
 
 V. Railroad Co. 
 
 510 
 
 Floyd V. Comm'ra 344, 358 
 
 360, 366 
 
 V. Teschemaker 
 
 106 
 
 V. Turner 
 
 478 
 
 Frewin v. Lewis 
 
 729 
 
 Floyd Acceptances 
 
 406, 426 
 
 Friend v. Dennett 
 
 305, 373 
 
 Fogg V. Nahant 
 
 788, 789 
 
 Frolichstein v. Mobile 
 
 330 
 
 FoUett V. People 
 
 579 
 
 Frost V. Belmont 
 
 730, 735 
 
 Folsom V. Underhill 
 
 505 
 
 V. Waltham 
 
 789 
 
 Fonda v. Canal Appraisers 
 
 741 
 
 Fullam V, Brookfleld 
 
 377, 380 
 
 Foot V. Bronson 
 
 799 
 
 Fuller, Ex parte 
 
 695 
 
 V. Prowse 156, 
 
 157, 159 
 
 V. Edings 
 
 67 
 
 Foote V. Cincinnati 
 
 23 
 
 V. Gioton 
 
 98 
 
 V. Milwaukee 
 
 401, 738 
 
 Falton V. Davenport 
 
 633, 636 
 
 V. Salem 
 
 90 
 
 V. Mehrenfield 
 
 491 
 
 Ford, Re 
 
 617, 642 
 
 Fulton County v. Mississippi, &c. R. 
 
 V. Clough 
 
 13 
 
 R. Co. 
 
 108 
 
 V. Railroad Co. 
 
 
 Furman v. Knapp 
 
 611 
 
 557, 5^9, 
 
 564, 573 
 
 V. New York 
 
 74 
 
 V. Williamson 
 
 376 
 
 V. Nichol 
 
 41 
 
 Fort Wayne v. Jackson 
 
 123 
 
 Fui'mau Street 124, 
 
 487, 543 
 
 Fortune v. St. Louis 
 
 65 
 
 Furnell v. Cotes 
 
 471 
 
 Posdick V. Perrysburg : 06 
 
 107, 610 
 
 
 
 Foss V. Chicago 
 
 617 
 
 G. 
 
 
 FoBsett V. Bearce 
 
 304 
 
 
 
 Foster v. Fowler 
 
 : 9, 446 
 
 Gabriel v. Clark 
 
 165 
 
 V. Kenosha 
 
 38, 41 
 
 GafEney v. Gough 
 
 660 
 
 V. Lane 
 
 10 
 
 Qahagan v. Railroad Co. 
 
 566 
 
 V. McKibben 
 
 176 
 
 Galbreath v. Armour 546, 
 
 555, 568 
 
 V. Rboads 
 
 389 
 
 Gale V. Kalamazoo 61, 
 
 395, 296 
 
 V. Shaw 
 
 380 
 
 V. Mead 
 
 176 
 
26 
 
 -TABLE 01" CASES CITED. 
 
 Gale V. South Berwick 91 
 
 Galena v. Amy 417, 685, 686, 689 
 V. Commonwealth B71 
 
 V. Oorwith 83, 86 
 
 Gall V. Cincinnati 313, 315, 498, 543 
 Gallia County v. Holcom 55 
 
 Galloway v. London 433 
 
 V. Railroad Co. 737 
 
 Gallup V. Tracy 331 
 
 Galveston v. Menard 70, 74, 529, 531 
 Gamble v. St. Louis 501 
 
 Gano V. State 726 
 
 Gardiner v. Boston E. R. Corp. 560 
 Gardiner, &c. Co. v. Gardiner 625 
 Gardner t. Boston 643 
 
 V. Newburg 463, 464, 476, 
 797 
 
 V. State 613 
 
 Gamier v. St. Louis 169 
 
 Garrett v. St. Louis 481, 601, 616 
 Gartside v. East St. Louis 540, 737 
 Garvin v. Wells 846 
 
 Gas Co. V. County 628 
 
 V. San I'rancisco 
 
 39, 344, 365, 384, 385 
 Gaskil V. Dudley 763 
 
 Gaskin's Case 188 
 
 Gass V. State ' 136, 141 
 
 Gassett v. Andover 383 
 
 Gates V. Delaware County 163, 165 
 v. Hancock 387 
 
 Gault's Appeal 660 
 
 Gay V. Bradstreet 476 
 
 Gearhart v. Dixon 337, 241, 610 
 
 Gee V. Wilden 341 
 
 Geiger v. Filor 67, 555, 557 
 
 Gelpcke v. Dubuque 84, 104, 106, 114, 
 
 495, 416, 416S, 418, 431, 434 
 Gentile v. State 36 
 
 Gerard v. Cook 585 
 
 Germania v. State 291, 633 
 
 Gerry v. Stoneman 100, 304 
 
 Ghenn v. Provincetown 788, 789 
 Gibbon V. Railroad Co. 90, 104 
 
 Gibson v. Bailey 333 
 
 Giesy v. Railroad Co. 465, 487, 488 
 Gilbert v. Eoxbury 788 
 
 V. SUowerman 308 
 
 Gilchrist v. Little Rock 415, 436 
 
 Giles V. School District 10, 134, 304 
 Giles' Case 669 
 
 Gilkerson v. Justices 594, 596, 633 
 Gill V. Brown 176 
 
 Gillette v. Hartford 634 
 
 Gilman v. Deerfleld 789 
 
 V. Sheboygan 41, 589, 594, 
 608, 622 
 Gilmer v. Lime Point 463, 470 
 
 Gilmore v. Holt 101 
 
 V. Lewis 91, 173, 173 
 
 v. Pope 176 
 
 Girard v. Philadelphia 30, 36, 37, 47, 
 
 53, 113, 116, 130, 136, 431, 
 
 437, 438 
 
 V. New Orleans 435, 437, 439 
 
 Glasby t. Morris 545 
 
 Glascock V. Lyons 174 
 
 Glass Co. V. Boston 751 
 
 Glasjenbury v. McDonald 413 
 
 Gless V. White 611 
 
 Gliddon v. Unity 63, 176 
 
 Goddard, Re 54, 327, 845, 358 
 
 V. Jacksonville 399 
 
 V. Smithett 713 
 
 Goddin v. Crump 104, 590 
 
 Godfrey v. Alton 491, 497, 510 
 
 Gogshall V. Pelton 443 
 
 Goldersleve v. Alexander 134 
 
 Goldschmidt v. New Orleans 410 
 
 Gooch V. Gregory 446 
 
 Goodal V. Milwaukee 543, 784 
 
 Goodale v. Tuttle 797 
 
 Goodel V. Baker 307 
 
 Goodell, Ex parte 668 
 
 Goodenow v. Buttrick 53 
 
 Goodloe v. Cincinnati 406, 407 
 
 Goodman v. Commissioners 407 
 
 Goodnow V. Commissioners 406, 407 
 
 Goodrell v. Jaokaon 431 
 
 Goodrich v. Brown 346, 366 
 
 V. Chicago 59, 63, 669 
 
 V. Detroit 87, 371, 401, 403 
 
 V. Milwaukee 784 
 
 Goodtitle v. Alker 496, 534 
 
 Goodwin v. McGehee 448 
 
 Gordon v. Appeal Tax Court 639 
 
 v. Baltimore 616, 629, 655, 75 1 
 
 V. Farrer 176 
 
 V. Preston 448 
 
 Gorham v. Springfield 28, 126, 139 
 
 Gorman v. Low 386 
 
 Goshen v. Croxton 345, 347 
 
 Goshorn v. County 106 
 
 Goss V. Corporation 824 
 
 Gosselink v. Campbell 384, 389 
 
 Goszler v. Georgetown 
 
 61, 93, 542, 783 
 
 Goudier v. Cormack 793 
 
 Gould V. Gapper 744 
 
 V. Sterling 104, 106, 108, 405, 
 
 419, 433, 425 
 
 Goundie v. Water Co. 444 
 
 Gourley v. Allen 669 
 
 V. Hawkins 450 
 
 Governor v. Allen 14 
 
 V. McEwen 30 
 
l-ABLE OF CASES Cll^t). 
 
 •^ 
 
 Governor v. Meredith 93 
 
 V. Justices 763 
 
 GrafE v. Baltimore 474, 475 
 
 Graffurs v. Commonwealth 176 
 
 Graham v. Carondelet 209, 334, 365 
 
 V. State 857 
 
 Granby «. Thurston 124, 127 
 
 Grand Chute v. Winegar 430, 431 
 
 Grand Kapids v. Hughes 374, 866, 538 
 
 Granger v. Pulaski County 785 
 
 Grant v. Brooklyn 790 
 
 V. Courter 37 
 
 V. Davenport 69, 70, 74, 88, 
 
 371, 451, 504, 511, 638, 784 
 
 V. Erie 62, 774, 801 
 
 V. Fancher 176 
 
 Graves v. Colby 349 
 
 V. Otis 783 
 
 V. Shattuck 581 
 
 Gray v. Brooklyn 30, 34, 39, 760 
 
 V. Iowa Land Co. 
 
 518, 527 
 
 V. Sheldon 
 
 124 
 
 V. State 
 
 357, 366 
 
 Green v. Canaan 
 
 498 
 
 y. Cheek 
 
 124 
 
 V. Danby 
 
 '788 
 
 V. Durham 
 
 211 
 
 V. Indianapolis 
 
 341, 846 
 
 V. Marks 
 
 446 
 
 V. Mayor 38, 30, 866, 402, 630 
 
 V. Miller 
 
 V. Mumford 
 
 V. Oaks 
 
 V. Portland 
 
 V. Beading 
 
 V. Butherf ord 
 
 V. State 
 
 V. Underwood 
 Greene v. Savannah 
 Greensboro v. Mullens 
 Greensburg v. Young 
 Gregory v. Adams 
 
 v. Eailroad Co. 
 Greley v. Railroad Co. 
 Grier v. Shackleford 
 
 V. Taylor 
 Grierson v. Ontario 
 Griffin V. Martin 
 
 V. Mayor 
 
 221 
 
 737 
 
 500 
 
 563 
 
 543, 555, 783 
 
 487 
 
 238 
 
 808 
 
 93, 308, 809 
 
 291, 302 
 
 596 
 
 788 
 
 303, 308 
 
 799 
 
 141, 144, 868 
 
 718 
 
 353 
 
 544 
 
 318, 753 
 
 V. Bising 
 
 V. Steele 
 Grifflng V. Pintard 
 Griffith V. FoUett 
 Griggs V. Foote 
 Grim v. School District 
 Grindley v. Barker 
 Griswold v. Stonuington 
 
 754, 789, 790, 795 
 473 
 713 
 660 
 176 
 479, 749, 788 
 751 
 231 
 398 
 
 Groenvelt v. Burwell 739 
 
 Grogan v. San Francisco 30, 40, 44, 
 387, 446, 514, 750 
 Guelph V. Canada Co. 515 
 
 Guerrin v. Reese 658, 660 
 
 Guilford v. Supervisors 44, 588, 596 
 Guillotte V. New Orleans 
 
 381, 835, 738 
 Gulic V. New 135, 147, 357 
 
 •Guun V. County 669, 685 
 
 Gurner v. Chicago 618, 652 
 
 Guthrie v. Armstrong 331 
 
 V. New Haven 505, 537 
 
 Gutzwell V. People 30, 35 
 
 Gwynne v. Cincinnati 459. 498 
 
 H. 
 
 Haddock's Case 189, 856 
 
 Hadley v. Chamberlain 388 
 
 V. Mayor 141, 
 
 144, 174, 181, 191 
 
 Hafford v. New Bedford 
 
 757, 758, 773, 774 
 Hagan v. Campbell 70, 71 
 
 Hagerstown v. Deckert 857, 760 
 
 Hagner v. Heyberger 144, 310, 718 
 Hague V. Philadelphia 
 
 9, 373, 875, 881, 386, 887, 888 
 
 Haight V. Keokuk 545 
 
 Haines v. School District 205, 751 
 
 Halbert v. State 176 
 
 Hale V. Cushman 735 
 
 V. Houghton 97 
 
 V. Kenosha 594, 616, 617, 622 
 
 Haley v. Philadelphia 479 
 
 Haliburton v. Frankford 379 
 
 Hall V. Cockrell 176 
 
 V. Houghton 271 
 
 V. Lowell 788 
 
 V. McCaughey 531 
 
 V. Manchester 176, 788 
 
 V. Selectmen 665 
 
 V. Smith 176 
 
 V. Supervisors 668 
 
 Hallenbeck v. Hahn 104 
 
 Halstead v. Mayor 
 
 98, 381, 383, 399, 406, 409, 413 
 Ham V. Miller 656 
 
 V. Salem 463 
 
 Hamden v. Railroad Co. 560 
 
 V. Rice 436, 443 
 
 Hamerick v. Bouse 738 
 
 Hamilton v. Carthage 851 
 
 V. McNeil 134, 135 
 
 V. Railroad Co. 
 
 374, 450, 564 
 V. State 669, 695, 737 
 
28 
 
 TABLE OP CASES CITED. 
 
 Hammer v. Covington 176, 673 
 
 Hammershold v. Bull 176 
 
 Eammett v. Philadelphia 
 
 594, 596, 619 
 Hammond v. Haines 33, 54, 397 
 
 V. McLachlin 496 
 
 Hampshire v. Franklin 138, 139 
 
 Hancock v. Hazzard 175, 176 
 
 Hancock County v. Clark 108 
 
 Hannewinkle t. Georgetown 476, 737 
 Hannibal v. Draper 
 
 491, 503, 510, 538 
 V. Kailroad Co. 538, 561 
 Hanover v. Eaton 379 
 
 Hanson v. Vernon 
 
 31, 104, 105, 106, 465, 587, 588, 589 
 Harbeck v. Toledo 467, 469, 470, 471 
 Hardcastle v. Railroad Co. 666, 795 
 V. State 304 
 
 Harding v. Railroad Co. 108 
 
 V. Yandewater 334 
 
 Hardy v. Waltham 13 
 
 Harker v. Mayor 346 
 
 Harlem v. New York 730 
 
 Harlem Gas Co. v. Mayor 388, 391 
 Harlow V. Humiston 794, 795 
 
 Harman v. Tappenden 193 
 
 Harmon v. Brotherson 176 
 
 Harness v. Canal Co. 476 
 
 Harney v. Indianapolis 731, 734 
 
 Harper v. Elberton 631 
 
 Harrington v. Railroad Co. 557 
 
 V. School District 
 
 176, 399 
 
 Harris v. Baker 176 
 
 V. Elliott 515, 527 
 
 v. Intendant 55, 397 
 
 V. Nesbit 80 
 
 V. School District 10, 333, 385 
 
 V. Wakeman 349 
 
 V. Watson 91 
 
 V. Whitcomb 337 
 
 Harrison v. Baltimore 58, 95, 96, 775 
 
 V. Bridgetown 47, 139 
 
 V. Parker 496 
 
 V. Vicksburg 590, 591 
 
 V. Williams 9b, 340 
 
 Harrold v. Simcoe County 785 
 
 Hart V. Brooklyn 538, 790 
 
 V. Burnett 513, 514 
 
 V. Gaven 599 
 
 V. Mayor 71, 74, 
 
 373, 377, 379, 384, 311, 780 
 
 V. Stone 450 
 
 V. Township 503 
 
 Hartford Bridge Co. v. East Hartford 
 
 80, 137, 138 
 
 V. Perry Co. 78 
 
 Hartwell v. Littleton 232 
 
 Harvey v. Rochester 766 
 
 Harvy v. Dermody 309 
 
 V. W. P. 8. Co. 408 
 
 Harward v. Levee Co. 736 
 
 Harwood v. Marshall 681, 699 
 Hasbrouck v. Milwaukee 
 
 44, 375, 387, 388, 685 
 
 Hascard v. Somamy 450 
 
 Hasdell v. Hancock 98, 306 
 
 Haskel v. Burlington 656 
 
 Hasteng's Case 145 
 
 Hatch V. Barr 376 
 
 V. Mann 173 
 
 V. Pendegast 318 
 
 Havemeyer v. Iowa Co. 114, 416, 4165 
 
 665, 
 
 341 
 
 668 
 
 671 
 
 473 
 
 503 
 
 458, 538 
 
 65 
 
 505, 788 
 
 386 
 
 134, 206, 259 
 
 176 
 
 358 
 
 763 
 
 797 
 
 176, 373 
 
 31 
 
 Haven v. Asylum 
 Hawkins v. Commissioners 
 V. Governor 
 V. Rochester 
 Hawley v. Baltimore 
 
 V. Harrall 
 Hawthorn v. St. Lonis 
 Hayden v. Attleborough 
 V. Madison 
 V. Noyes 
 V. Turnpike Co. 
 Hayes v. Appleton 
 Haygood v. Justices 
 Haynes v. Burlington 
 V. Covington 
 V. Municipality 
 V. Thomas 
 
 494, 531, 533, 537, 564 
 
 V. Washington Co. 136 
 
 Hays V. Pacific Steamship Co. 636 
 
 V. State 491 
 
 Hay ward v. School District 304, 386 
 
 Haywood v. Mayor 251, 353 
 
 V. Savannah 53 
 
 Hazzard's Case 163, 190 
 
 Hazen v. Essex County 465 
 
 V. Strong 305 
 
 Hazzlett v. Mount Vomon 616 
 
 Heacock v. Sherman 579 
 
 Head v. Insurance Co. 55, 373, 407 
 
 Heath, Ex parte 
 
 136, 141, 368, 676, 683 
 Hebert v. Le Valle 514 
 
 Heckerman v. Hummel 520, 531 
 
 Hedges v. Madison Co. 760, 763, 785 
 
 Heeney v. Heeney 
 HefiFuer v. Commonwealth 
 Heidelberg School District 
 
 69,70 
 695 
 
 Horst 
 376 
 
 Heisembrittle v. Charleston 
 
 250, 354, 398 
 Heise v. Town Council 373, 278, 280 
 
TABLE OF CASES CITED. 
 
 29 
 
 Heland v. Lowell 245, 
 
 Helen v. Noe 
 
 Hemphill v. Boston 
 
 Henchman v. Detroit 
 
 V. Railroad Co. 
 
 Hendee v. Pinkerton 
 
 Henderson v. Baltimore 
 
 605, 610, 633, 637, 
 V. Mayor 
 V. Railway Co. 
 
 Hendrick v. West Springfield 
 
 778, 
 174, 
 
 497, 
 
 530, 
 
 Henly v. Lyme 
 Hennen, Ex parte 
 Henry v. Atkinson 
 
 V. Bridge Co. 
 
 V. Chester 
 
 V. Pittsburg Co. 
 
 V. Railroad Co. 
 Henshaw v. Hunting 
 Hentz V. Railroad Co. 
 Hepburn v. Griswold 
 Herbert v. Benson 
 Hersey v. Supervisors 
 Herzo v. San Francisco 
 358, 
 Hesketh v. Braddock 
 
 343, 349, 356, 
 Heslep V. Sacramento 
 Hester's Case 
 
 Hewes v. Reis 610, 642, 643, 
 
 Hewison v. New Haven 773, 
 
 Heyneman v. Blake 468, 
 
 Heyward v. Mayor 433, 436 
 
 Heywood v. Buflalo 
 Hickman v. O'Neal 
 Hickok V. Plattsburg 
 Hickox V. Cleveland 
 Hicks V. Dom 
 
 V. Launcelot 
 Hiestand v. New Orleans 
 Higbee v. Railroad Co. 
 Higgins V. Chicago 473, 
 
 V. Livingston 
 Higginson v. Nahant 
 Highland Turnpike v. McKean 
 Higley v. Bunce 365, 
 
 High V. Shoemaker 
 Hilbish V. Catherman 103, 
 
 Hildreth v. Lowell 463, 643, 647, 
 Hildreth's Heirs v. Mclntire's 
 
 289 
 384 
 505 
 527 
 533 
 130 
 
 639 
 147 
 784 
 401 
 788 
 188 
 450 
 555 
 605 
 783 
 476 
 531 
 565 
 83 
 533 
 616 
 
 737, 737, 
 
 visees 
 Hill V. Decatur 
 
 V. Forsyth e County 
 
 V. Higdon 
 
 V. State 
 
 V. Supervisors 
 Hilliard v. Richardson 
 Hilsdorf v. St. Louis 
 
 383, 447, 750 
 
 860 
 
 173 
 685 
 649 
 788 
 483 
 456 
 738 
 357 
 
 63 
 784 
 781 
 159 
 171 
 522 
 749 
 176 
 786 
 
 51 
 366 
 599 
 587 
 769 
 De- 
 314 
 397 
 104 
 617 
 747 
 579 
 791 
 772 
 
 473, 
 464, 
 
 38, 345, 
 37, 593, 
 
 773, 
 
 Himmelman v. Byrne 649 
 
 V. Cofran 648, 653, 668 
 V. Danos 610 
 
 V. Oliver 610, 643 
 
 V. Spanagel 648, 660 
 
 Hinchman v. Paterson Horse R. R. 
 Co. 556, 559, 564, 567, 570, 573 
 
 Hinde v. Navigation Co. 
 
 773 
 134 
 603, 652 
 635 
 591 
 160 
 176 
 790 
 333 
 730 
 
 786, 788 
 
 Hinds V. Hinds 
 nines V. Leavenworth 
 
 V. Lockport 
 Hinson v. Lott 
 Hinton v. Lindsay 
 Hite V. Goodman 
 Hixon V. Lowell 
 Hoag V. Durfey 
 Hobart v. Detroit 
 
 V. Milwaukee, &c. Co. 570, 573 
 Hobbs V. Lowell 505 
 
 Hoblyn V. Regem 311 
 
 Hoboken v. Gear 
 
 170, 174, 181, 188, 367 
 
 V. Harrison 146, 155 
 
 Hodgden v. Dexter 176 
 
 Hodges V. Buffalo 55, 93, 100, 372, 
 
 381,382, 385, 387,413,732 
 
 • V. Mayor 294 
 
 V. Schuler 408 
 
 Hoflman v. Jersey City 364 
 
 V. St. Louis 543, 783 
 
 V. Van Nostrand 116 
 
 Hoke V. Henderson 168, 174 
 
 Holdane v. Cold Spring 494 
 
 Holbrook v. Dickenson 658 
 
 Holladay v. March 289 
 
 Holland v. Baltimore 
 
 54, 58, 637, 639, 738 
 
 V. San Francisco 47 
 
 Holliday v. Friable 433, 445, 446 
 
 V. People 
 
 30,33 
 
 HoUingsworth v. Detroit 
 
 414 
 
 Holman, Ex parte 
 
 686, 693 
 
 V. Townsend 
 
 788 
 
 Holmes v. Fuhlenburg 
 
 357 
 
 V. Jersey City 481, 
 
 505, 596, 
 
 737, 
 
 728, 740 
 
 Holroyd v. Pumphrey 
 
 658 
 
 Home V. Rouse 
 
 61 
 
 V. Earl Camden 
 
 744 
 
 Homersham v. Wol., &c. Co 
 
 373 
 
 Hood V. Lynn 
 
 57, 100 
 
 Hooker v. New Haven Co. 
 
 543, 783 
 
 Hooksett V. Amoskeag, &c.Co. 539, 579 
 
 Hoole V. Attorney General 
 
 
 313, 
 
 498, 501 
 
 Hooper v. Emery 
 
 13 
 
 Hope V. Deaderick 
 
 590 
 
 Hopkins v. Mason 
 
 643 
 
30 
 
 TABLE OP CASES CITED. 
 
 Hopkins v. Mayor 345 
 
 V. MehafEy 876 
 
 V. Whitesides 114 
 
 Hopkinson v. Marquis of Exeter 178 
 
 Horn V. Baltimore 373, 768 
 
 V. Whittier 155 
 
 Hornbeck v. Westbrook 431, 443 
 
 Hornblower v. Dunden 399 
 
 Horner r. Coffey 446, 686 
 
 Homey v. Sloan 389 
 
 Hornatein v. Railroad 488 
 
 Horton v. Ipswich 788, 789 
 
 V. Grand Haven 483 
 
 Hotohin v. Kent 387 
 
 Houfe v. Eulton 788 
 
 Houghton T. Bavenport 304 
 
 Hounsel v. Smyth 795 
 
 Houston V. Clay County 176 
 
 Hpvey V. Mayo 88, 543, 783, 784 
 
 Howard v. Bridgewater 747, 788 
 
 V. Church 481, 596 
 
 V. Drainage Co. 43, 593 
 
 V. Gage 681, 733 
 
 V. Providence 487 
 
 V. Rodgers 503 
 
 V. Savannah 358 
 
 V. Shoemaker 146, 147, 357 
 
 Howard's Case 109 
 
 Howe, Matter of 443 
 
 V. Boston 751 
 
 V. Crawford Co. 673 
 
 V. Keeler 385 
 
 V. New Orleans 
 
 39, 760, 790, 794, 795 
 
 V. Norris 338 
 Howell V. Buffalo 
 
 596, 605, 751, 766, 771 
 
 V. Philadelphia 659 
 
 Howerton v. Tate 680 
 
 Howes V. Racine 733, 738 
 
 Howland v. Luce 166 
 
 V. Vincent 795 
 
 Hoyle V. Railroad Co. 558 
 
 Hoyt V. Commissioners 635, 636 
 
 V. East Saginaw 353, 596, 597 
 
 V. Hudson 797, 799, 800, 801 
 
 .V. Thomson 385 
 
 Hoxie V. Commissioners 694 
 
 Hubbard v. Concord 788, 790 
 
 V. Lyndon 406 
 
 v. Winsor 307 
 
 Hubbell V. "Waterloo 693 
 
 Huber v. Gazly 503, 507, 533 
 
 Hubert v. People 
 
 Huddleson v. Ruffln 363, 387 
 
 Hudson V. Geary 330, 333 
 
 V. Thome 361 
 
 Hudson Co. v. State 33, 333, 335 
 
 Huff V. Knapp 691 
 
 Huffman v. San Joaquin County 785 
 
 Hughes V. Kline 737 
 
 V. Parker 144, 310 
 
 V. Railroad Co. 519, 560 
 
 Hull V. County 407 
 
 V. Supervisors 669 
 
 Hullin V. Municipality 473, 474 
 
 Hullman v. Honcomp 310, 680 
 
 Hume V. New York 788, 790 
 
 Humes v. Mayor 543, 788 
 
 Hummer v. Hummer 141, 368 
 
 Humphreys, Ex parte 333 
 
 V. County 579 
 
 v. Mears 176 
 
 Hanemau v. Fire District 94 
 
 Hunnewell v. Boston 738 
 
 Hunt V. Ambruster 103 
 
 V. Philadelphia 396 
 
 V. Pownal 788 
 
 V. School District 304, 306 
 
 V. Utica 401, 469 
 
 Hunter v. Candler 174, 733, 735 
 
 V. Field 176 
 
 V. Middleton 534 
 
 V. Newport 466 
 
 V. Sandy Hill 
 
 490, 494, 501, 510, 534 
 
 V. Trustees 491 
 
 V. Winsor 777 
 
 Hurlburt v. Litchfield 777 
 
 Hutchins v. Scott 357, 366 
 
 Hutchinson v. Pratt 
 
 381, 333, 337, 508, 509 
 
 Hyde v. Franklin 406 
 
 V. Jamaica 505, 786, 789 
 
 Hydes v. Joyes 60, 618 
 
 Hymesv. Aydelott 483 
 
 Illinois, &c. Co. v. St. Louis 61, 67 
 
 Imlay v. Railroad Co. 573 
 
 Independence v. Moore 803, 336 
 
 Indiana v. Woram 14 
 
 Indianapolis v. Blythe 303 
 
 V. Cross 494, 499, 533, 
 
 537 535 
 
 V. Imberry 337, 338^ 610 
 
 V. McClure 579 
 
 V. Mansur 596, 641 
 
 V. Skeen 374 
 
 Indianola v. Jones 339, 374 
 
 Ingham v. Chicago, &c. R. R. Co. 558 
 
 Inglis V. Railway Co. 331, 365 
 
 Ingram v. Police Jury 531 
 
 Inhabitants v. Cole 321, 436 
 
 T. Eaton 436, 444 
 
TABLE OP CAS-WS CITED. 
 
 31 
 
 Inhabitants v. New Orleans 59 
 
 V. String 131 
 
 V. Weir 381, 406, 407 
 
 V. "Wood 22 
 
 Innes v. Wylie 190, 192 
 
 Insane Asylum v. Higgins 133, 685 
 
 Insurance Co. v. Justices 639 
 
 V. Sanders 333' 
 
 V. Sort-well 335, 230 
 
 V. "Wheelwright 712 
 
 V. "Wilson's Heirs 694 
 
 Intendant v. Chandler 55, 399, 476, 
 
 590, 739, 740 
 
 V. Pippin 727 
 
 Iowa City v. Foster 170 
 
 Irish V. "Webster 176 
 
 Iron Co., Ex parte 433 
 
 Iron R. R. Co. v. Ironton 67 
 
 Irwin V. Dixion 498, 499, 501 
 
 V. Fowler 794 
 
 Isleyv. Stubbs 101 
 
 Isom V. Railroad Co. 488 
 
 Israel v. Jacksonville 343 
 
 V. Jewett 488 
 
 Ives V. Hulet 176 
 
 Jackson v. Belleviei- 
 
 
 788 
 
 V. Bowman 
 
 
 61, 373 
 
 T. Cory 
 
 
 431, 443 
 
 V. Hartwell 
 
 431 
 
 , 437, 443 
 
 V. Hathaway 
 
 
 496, 544 
 
 V. LeRoy 
 
 
 431 
 
 V. Morris 
 
 
 101 
 
 V. People 309, 
 
 368, 369, 538, 
 
 
 
 740, 743 
 
 V. Pike 
 
 
 436 
 
 V. Pratt 
 
 
 130 
 
 V. Railroad Co. 
 
 
 405 
 
 Jacob V. Louisville 
 
 
 488 
 
 Jacobs V. Hamilton Co. 
 
 
 10, 764 
 
 James v. Putney 
 
 
 349 
 
 V. "Wilwaukee 
 
 
 108, 432 
 
 v. San Francisco 
 
 
 761 
 
 James River Co. v. Anderson 518, 555 
 
 Jameson v. People 
 
 
 51 
 
 Jamison v. Popiana 
 
 
 450 
 
 Janesville v. Markoe 
 
 
 54 
 
 Janey's Executors v. Latane 
 
 443 
 
 Jansen v. Ostrander 
 
 
 176 
 
 Janvrin v. Exeter 
 
 
 91 
 
 Jarvis v. Barnard 
 
 
 735 
 
 V. Dean 
 
 
 494 
 
 V. Mayor 
 
 
 174, 193 
 
 Jay's Case 
 
 
 179, 194 
 
 Jefferson v. Courtmire 
 
 
 303, 333 
 
 Jefferson Co. v. Slagle 
 
 
 331 
 
 Jeffersonville v. Ferry Co. 
 
 67, 73, 77, 383 
 
 V. Patterson 147, 653 
 
 V. "Weems 136 
 
 Jeffries v. Ankeney 177 
 
 Jeffreys v. Carr 33 
 
 Jejikins v. Andover 105ft, 593 
 
 V. Thomasville 361 
 
 v. Waldron 177 
 
 Jenks V. Chicago 618, 643 
 
 V. Lima Township 751 
 
 Jenner v. Jolliffe 176 
 
 Jenning's Case 163, 695, 707 
 
 Jersey City v. Hudson 313 
 
 V. Morris Canal Co. 
 
 495, 497, 530, 531 
 
 V. Railroad Co. 30, 54 
 
 V. State 338, 505, 527, 
 
 529, 530, 568, 741 
 
 V. Quaife 169 
 
 Jewett T. New Haven 774 
 
 John V. Cincinnati, &c. R. Co. 105 
 
 John Street, Matter of 
 
 456, 458, 496, 513 
 Johns V. NicboUs 181 
 
 Johnson v. Almeda 479 
 
 V. Barclay 361 
 
 V. Commissioners 719 
 
 V. Common Council 401 
 
 V. Haverhill 788, 789 
 
 V. Indianapolis 119 
 
 V. Irwin 539 
 
 V. Lexington 639 
 
 V. Municipality 770, 773 
 
 V. Norway 113 
 
 V. Oregon City 639 
 
 V. Philadelphia 
 
 61, 87, 391, 293 
 V. Scott 
 
 V. Stanley 176 
 
 V. Stark Co. 405, 414 
 
 V. Steadman 176 
 
 V. Thorndike 735 
 
 V. "Whitefleld 788 
 
 V. "Wilson 176, 306 
 
 Johnson Co. v. Hicks 667 
 
 Johnston v. Charleston 138, 144 
 
 V. Railroad Co. 471 
 
 Joliet V. Verley 03, 579, 753, 788 
 
 Jonas V. Cincinnati 87, 605, 607 
 
 Jones V. Andover 208, 221, 505 
 
 V. Boston 476, 737, 739, 788 
 
 V. Ins. Co. 345 
 
 V. Lancaster 383 
 
 V. Little Rock 406 
 
 V. Liverpool 796 
 
 V. Mayor 106 
 
 V. "Waltham 188 
 
32 
 
 TABLE OF CASES CITED. 
 
 Jones V. New Haven 39, 788, 790 
 T. Richmond 371 
 
 V. Robbins 367 
 
 V. Soulard 134 
 
 V. State Auditor 699 
 
 Jordan v. School District 
 
 176, 304, 306, 338, 386 
 Joseph V. Odonoghue 
 
 V. Rogers 430 
 
 Judge V. Meriden 777 
 
 Judkins v. Hill 138 
 
 Judson V. Bridgeport 469, 473 
 
 V. Reardon 347 
 
 Junkins v. Union School District 
 
 331, 376 
 Justices, Opinion of 
 
 136, 137, 138, 135, 136 
 V. Munday 666, 667 
 
 V. Orr 406, 413 
 
 V. Plankroad Co. 737 
 
 V. Turnpike Co. 707 
 
 Kalbier v. Leonard 634 
 
 Kane v. Baltimore 456, 463, 468 
 
 Kansas P. R. R. Co. v. Russell 
 Karwischv. Atlanta 330 
 
 Kathman v. New Orleans 38 
 
 KavanaUgh v. Sanders 155 
 
 Kayser v. Trustees 30 
 
 Kearney, Ex parte 184 
 
 V. Andrews 353 
 
 V. Covington 401 
 
 Keasy v. Louisville 783 
 
 Keating v. Sparrow 386 
 
 Keckely v. Oomm'rs of Roads 390 
 Keeler v. Frost 331 
 
 V. Milledge 344, 346, 347, 369 
 Keene v. Bristol 480 
 
 Keen v. Lynch 494 
 
 Keith V. Easton 788 
 
 Keithsburg v. Prick 387, 434 
 
 Kellar v. Savage 176, 333, 285 
 
 Keller v. Hicks 408 
 
 V. Hyde 685 
 
 . V. State 591, 633 
 
 Kellogg V.' Northampton 788 
 
 Kelly v. Mayor 
 
 373, 406, 407, 413, 792, 793 
 
 V. Milwaukee 58, 59 
 
 V. Toronto 319 
 
 Kelsey v. King 494, 544, 559 
 
 V. Wright 158, 159 
 
 Kendall v. King 83 
 
 v. Stokes 175, 695 
 
 V. United States 668, 670, 693 
 
 Kennedy v. Board of Health 308 
 
 Kennedy v. Covington 74, 445, 512 
 y. Municipality 483 
 
 V. Newman 470 
 
 V. Phelps 308, 309, 313 
 
 V. Sowden 273, 285, 389 
 
 V. Washington 669 
 
 Kentucky y. Dennison 14 
 
 Kentucky Seminary v. Wallace 
 
 131, 133 
 Kepner v. Commonwealth 
 
 209, 244, 365 
 KeSin v. Campbell 496 
 
 Kerr v. Trego 
 
 143, 144, 310, 213, 675, 676. 680 
 Ketchum v. Buffalo 
 
 82, 86, 313, 315,432,531 
 
 Kettering v. Jacksonville 351, 355 
 
 Keyes v. Tait 500 
 
 V. Westford 55, 331, 376 
 
 Keyser v. School District 
 
 321, 385, 386 
 
 Kidder v. Peoria 469, 471 
 
 Kimball v. Boston 773, 773 
 
 V. Kenosha 456, 537 
 
 V. Lamprey 307, 339, 684 
 
 V. Marshall 307, 233 
 
 V. School District 386 
 
 Kimble v. Canal Co. 480 
 
 Kincard's Appeal 306 
 
 King V. Beesten 321 
 
 V. Boston 321 
 
 V. Bristol Dock Co. 669 
 
 V. Butler 176, 332 
 
 V. Chase 795 
 
 V. Cross 311 
 
 V. Duke of Bedford 134 
 
 V. Grant 53 
 
 V. Hardwick 343 
 
 V. Harris 335 
 
 V. Ingram 388 
 
 V. Jacksonville 343 
 
 V. Jones 311 
 
 V. Lisle 159 
 
 V. Madison 629 
 
 V. Mayor 159,174,334 
 
 V. Merchant Tailors' Co. 387 
 
 V. Miller 322 
 
 V MitoheU 134 
 
 V. Non-is 233 
 
 V. Round 330 
 
 V. Russell 311 
 
 V. Sergeant lo4 
 
 V. Williams 322, 733 
 
 V. Wilson 
 
 104, 415, 4165, 693, 787 
 Kingman v. County Comm'rs 476 
 
 V. School District 385 
 
 Kingsberry v. Pettis Co. 418 
 
TABLE OF CASES CITED. 
 
 33 
 
 Kingsbuiy v. School District 
 
 199, 205, 306, 231, 376 
 Kingston v. Homer 51 
 
 Kinzie v. Chicago 133 
 
 Kip V. Patterson 353, £91, 331, 344 
 346, 348, 357, 609 
 Kirby v. Boylston Market Assoc. 
 
 827, 788, 795 
 V. Shaw 594, 596 
 
 Kirk T. King 443 
 
 V. Nowill 378, 379, 388 
 
 Kirkman v. IRindy 308 
 
 Kitredge v. Milwaukee 786, 796 
 
 Klinkener v. School District 
 
 494, 510, 533 
 
 Knapp V. Grant 434 
 
 Kneeland v. Milwaukee 616, 633 
 
 Knight V. Railroad Co. 558 
 
 V. Wells 113,117 
 
 Kniper v. Louisville 391 
 
 Knowles v. Muscatine 537 
 
 Knowlton v. Inhabitants 386 
 
 V. Supervisors 633 
 
 Knox V. Heatou 530 
 
 V. Lee 83 
 
 V. Peterson 610, 658 
 
 Knox Co. V. Aspinwall 104, 405, 416, 
 
 417, 418, 419, 430, 431, 
 
 433, 687, 688, 693, 707 
 
 v.McComb 445 
 
 Koehler v. Iron Co. 130 
 
 Koester v. Ottumwa 788 
 
 Koppikus V. Commissioners 483 
 
 Korah v. Ottawa 539, 579 
 
 Krickle v. Commonwealth 848, 353 
 
 Kunkle v. Franklin 1U3 
 
 Kupper V. South Parish 331 
 
 Kyle V. Malin 55, 469, 605, 639 
 
 Kynaston v. Shrewsbury 303 
 
 Labourdette v. Municipality 199, 330 
 Lackland v. Railroad Co. 
 
 555, 563, 564 
 Lacon v. Page 788 
 
 Lacour v. New York 753, 778, 780 
 Lade v. Shepherd 494, 496 
 
 Lafayette v. Bush 476, 480, 543, 783 
 v. Cox 55, 84, 106 
 
 V. Fowler 
 
 619, 688, 641, 596, 738, 783 
 V. Jenners 30, 24, 535 
 
 V. Male Orphan Asylum 
 
 616 
 V. Spencer 783 
 
 Lafayette, &c. R. R. Co. v. Geiger 
 
 105 
 
 Lafon V. Dufrocq 38, 357 
 
 La Grange v. State Treasurer 339 
 
 Lake v. Williamsburg 648 
 
 . v. Trustees 407, 413 
 
 Lake View v. Letz 307, 308 
 
 Lakin V. Ames 139 
 
 Lambar v. St. Louis 799 
 
 Lamb v. Lane 483 
 
 V. Lynd 144, 674, 675, 676 
 
 V. Shays 446 
 
 Lancaster v. Richardson 333 
 
 Lancey v. Bryant 343 
 
 Lander v. McMillan 704 
 
 V. School District 304 
 
 Landolt t. Norvfich 788, 789 
 
 Lane v. Cotton 176 
 
 V. Kennedy 538, 539 
 
 V. School District 385 
 
 V. Sewell 173 
 
 Lane County v. Oregon 653 
 
 Lanfear v. Mayor 381 
 
 Langdon v. Castleton 169, 399, 403 
 
 V. Fire Department 611 
 
 Langhorn v. Robinson 588 
 
 Langsdale v. Ronton 337, 238 
 
 Langworthy v. Dubuque 683, 634 
 
 Lansing v. Treasurer 
 
 41, 114, 608, 698, 716 
 V. Smith 69, 70, 74 
 
 V. Van Gorder 
 
 401, 579, 647, 663 
 Larkin v. Saginaw 761, 785 
 
 Lamed v. Burlington 610 
 
 La Rosa v. Mayor 818 
 
 Lathrop v. Bank 130 
 
 V. State 176 
 
 Laver v. McLaughlin 314 
 
 Law v. Crombie 789 
 
 Lawhome. Ex parte 158 
 
 Lawrence v. Fairhaven 797 
 
 V. Gt. North R. Co. 781 
 Lawrenceburg v. West 391, 303 
 
 Lawson v. Commissioners 739 
 
 V. Railway Co. 104 
 
 V. Scott 739 
 
 Lawton v. Commissioners 368 
 
 V. Erwin 155 
 
 Layton v. New Orleans 86, 136, 139 
 Lazarus v. Toronto 836 
 
 Lea V. Hernandez 110 
 
 Leavenworth v. Casey 799, 801 
 
 V. Mills 400, 401 
 
 V. Norton 
 
 106, 605, 606, 610 
 V. Rankin 
 
 871, 881, 401, 533 
 Leavenworth Co. v. Miller 104 
 
 Leazure v. Hillegas 444 
 
34 
 
 TABLE OF OASES CITED. 
 
 Lebanon v. Heath 383 
 
 Le Claire v. Davenport 313, 318, 319 
 Le Clercq v. Gallipolis 
 
 456, 507, 515, 531 
 
 Le Oousteleux v. Buffalo 55, 432, 430 
 
 Lee V. Flemingburg 96 
 
 y. Lake 494, 498, 499 
 
 V. Sandy Hill 495, 769, 770 
 
 V. Templeton 751 
 
 V. Thomas 613 
 
 V. Walis 387, 356 
 
 Lee County v. Rogers 
 
 41, 416, 416S, 694 
 
 Leftwich v. Mayor 509 
 
 Legrand v. The College 133 
 
 Lehigh Co. v. Kleckner 750 
 
 LeiceBter v. Pittsford 788 
 
 Leland v. Portland 498 
 
 Leman v. New York 766 
 
 Lemington v. Blodgett 750 
 
 Leonard v. Burlington 107 
 
 V. Canton 55, 299, 751 
 
 Le Boy v. Mayor 693 
 
 Les Bois v. Bramell 514 
 
 Lesley v. White 176, 383, 761, 763 
 
 Leslie v. St. Louis 469, 476, 738 
 
 Leasee v. Church 529 
 
 V. Saunders 539 
 
 Levering v. Mayor 131 
 
 Levy V. New York 754 
 
 Lewenthal v. New York 803 
 
 Lewis, Ex parte 72 
 
 v. Henley 737 
 
 V. Mayor 3 
 
 V. Oliver 165, 683, 680 
 
 V. San Antonio 501, 531 
 
 V. State 363 
 
 V. United States 395 
 
 Lewiston v. Proctor 343, 344, 358 
 
 Lexington v. Butler 405, 430, 422a 
 
 V. Headley 
 
 384, 385, 347, 610, 639 
 V. McQuillan's Heirs 
 
 481, 573, 596, 603 
 
 V. MuUiken 685, 686 
 
 Libby v. Downey 333 
 
 Liddy v. bt. Louis R. R. Co. 573 
 
 Lincoln v. Hapgood 177 
 
 V. Worcester 751 
 
 Lindsey v. Luckett 161, 6S0, 683 
 
 Linning v. Charleston 634 
 
 Liquidators v. Municipality 41 
 
 Litchfield v. Polk County 738 
 
 V. Vernon 
 
 518,588,589,696,639,653 
 Little V. Merritt 176, 304, 306 
 
 Littlefield v. Maxwell 511 
 
 Little Rook v. State Bank 407 
 
 Littleton v. Richardson 707 
 
 Livingston v. Albany 633 
 
 V. Mayor 481, 483, 503 
 v. McDonald 799 
 
 V. Pippin 97, 381 
 
 V. Wider 593, 688 
 
 Lloyd V. New York 
 
 30, 752, 777, 778, 788, 790 
 
 Loan V. Boston 788, 789 
 
 Locke V. Rochester 338 
 
 Lockyood V. Mayor 793 
 
 V. St. Louis 
 
 58, 481, 596, 616, 737, 738 
 
 Logansport v. Blackemore 374 
 
 V. Dunn 498, 499,503,570 
 
 v. Legg 318, 280 
 
 V. Wright 802 
 
 Loker v. Brookline 881, 383, 386, 788 
 
 V. Damon 788 
 
 Lombard v. Cheaver 395 
 
 London v. Bamardston 349 
 
 London, City of 726 
 
 V. Wood 287, 856 
 
 V. Vanacre 163, 353, 388, 390 
 
 Londonderry v. Andover 51 
 
 V. Derry 137 
 
 Long V. Puller 480 
 
 Longworth v. Evansville 26 
 
 Loomis v. Moffitt 627 
 
 V. Spencer 176, 177 
 
 Lord V. Bigelow 22 
 
 V. Governor 210 
 
 V. Mayor 757 
 
 Lord Bruce's Case 179, 180, 190 
 
 Lord Hawley's Case 190 
 
 Lorillard v. Monroe 30. 754, 770, 777 
 
 Lot V. Ross 605, 610, 613 
 
 Loud V. Charlestown 625, 738 
 
 Louisiana State Bank v. Orleans 
 
 Nav. Co. 55, 393, 407 
 
 Louisville V. Bank 74, 544, 655 
 
 V. Commonwealth 
 
 30, 39, 433, 445, 615 
 V. Henderson 401 
 
 V. Henning 629, 751 
 
 V. Higdon 159 
 
 V. Hyatt 639, 596 
 
 V "M" p. TC ft fl.n 
 
 54, 297, 700, 701, 703, 713 
 V. McKegney 331, 387, 238 
 V. Rolling Mill Co. 543,783 
 V. University of Louis- 
 ville 34i 39, 43, 47 
 v. Zanone 517 
 Louisville City R. R. t)o. v. Louis- 
 ville 61 
 Loute V. Allegheny County 
 
 ■ 686, 687, 705, 709 
 
TABLE OF CASES CITED. 
 
 35 
 
 Love V. Hinkley 57 
 
 V. Ramsour 35, 137 
 
 V. Schenck 35, 127 
 
 Lovell V. St. Pajil 400 
 
 LoYett V. Steam, &c. Association 450 
 
 V. Railroad Co. 527 
 
 Lovingston v. "Wider 593, 788 
 
 Low V. Commissioners of Pilotage 
 
 154, 844, 366 
 
 V. Evans 150, 189 
 
 Lovel V. Pettingill 232 
 
 V. Towns 671, 716 
 
 Lowber v. Mayor 19, 30, 110 
 
 Lowden v. Cincinnatti 400 
 
 Lowell V. Boston 105i, 593 
 
 V. French 649 
 
 V. Oliver 103 
 
 V. Railroad Co. 560, 796, 768 
 
 V. Short 788, 795, 796 
 
 V. Simpson 584 
 
 V. Spaulding 585, 788,795,796 
 
 V. Wentworth 642, 649 
 
 V. Wheelock 237, 649 
 
 V. Wyman . 649, 759, 760 
 
 Lownsdale v. Portland 498 
 
 Loze V. Mayor 353 
 
 Lucas V. Pitney 
 
 V. San Francisco 400 
 
 Ludlow V. Tyler 118 
 
 Lumbard v. Aldrich 241, 355 
 
 •Lumsdenv. Milwaukee 483,483,617 
 
 Lund V. Tynesboro 788 
 
 Lutterloh v. Commissioners 707 
 
 Lycoming v. Union 44 
 
 Lyman v. Amherst 789 
 
 V. Bridge Co. 772 
 
 V. Burlington 476 
 
 V. Edgarton 777 
 
 Lyme v. Henley 109 
 
 Lynch v. Alexandria 594 
 
 V. Laffland ' 158, 160 
 
 V. People 848 
 
 V. Smith 789 
 
 Lynchburg v. Norvell 414 
 
 Lynde v. Winnebago County 
 
 108, 405, 422, 428 
 
 Lyon V. Adams 685 
 
 V. A damson 376 
 
 V. Commonwealth 134 
 
 M 
 
 Macbeth v. Haldeman 
 
 176 
 
 Macey v. Titcombe 
 
 388 
 
 Machell V. Nevinson 
 
 334 
 
 Macklot V. Davenport 
 
 141 
 
 Macon v. Franklin 
 
 494, 498 
 
 Macy V. Indianapolis 
 
 543", 783 
 
 Maddox v. Graham 104, 373, 378,405, 
 414, 436, 685, 688, 695, 696, 
 701, 706,712 
 Madison v. Bartlett 414 
 
 V. Hatcher 303 
 
 V. Kelso 170 
 
 V. Korbly 
 
 151, 183, 188, 191, 198 
 V. Ross 797 
 
 V. Whitney 626, 629 
 
 Madison County v. Alexander 685 
 V. Commonwealth 529, 396 
 V. Supervisors 669, 676 
 
 Magill V. Kauffman 383 
 
 Magruder v. Swann 671 
 
 Maher v. Chicago 383, 400 
 
 Mahon v. Railroad Co. 534, 557, 564 
 Mahoney v. Bank 32 
 
 Mahony v. Railroad Co. 789 
 
 Main v. McCarty 149, 347 
 
 Malchus V. Highlands 608 
 
 Maleverer v. Spink 756 
 
 Mallory v. Mallett 114 
 
 V. Supervisors 173 
 
 Malone v. Murphy 366 
 
 Maloy V. Marietta 27 
 
 Maltus V. Shields 633 
 
 Manchester v. Hartford 788, 790 
 
 V. Herrington 176 
 
 Mandershid v. Dubuque 
 
 499, 500, 505, 379, 788, 789, 793 
 
 Manice v. Mayor 403 
 
 Mankato v. Meagher 498, 311 
 
 V. Willard 530 
 
 Manley v. Gibson 492, 493, 496 
 
 V. St. Helen's Canal Co. 781 
 
 Mann v. Pentz 131 
 
 Manning v. Fifth Parish 385, 241 
 
 Manufacturing Co. v. Davis 117 
 
 Marble v. Worcester 788 
 
 Marbury v. Madison 153, 695 
 
 March v. Commonwealth 351, 302 
 
 Marchant v. Langworthy 304 
 
 Marietta v. Fearing 30, 353, 368, 389 
 
 Markham v. Mayor > 543, 788 
 
 Markle v. Akron 58, 344, 245, 368,366 
 
 V. Wright 310, 714 
 
 Marriage v. Lawrence 341 
 
 Marriott v. Baltimore 773 
 
 V. Hampton 751 
 
 Marsh V.Fulton Co. 106, 108,873,381, 
 
 387, 416, 418, 419, 430, 424,436 
 
 Marshall v. Guion 74 
 
 V. Vicksburg 616 
 
 Marshall County v. Cook 108, 434 
 
 Martin v. Bank 444 
 
 V. Evansville 74, 497 
 
 V. Lemon 321 
 
36 
 
 TABLE OF CASES CITED. 
 
 Martin v. Mayor 39, 61, 176, 381, 388, 
 
 413, 473, 760, 778 
 
 V. O'Brien 67 
 
 Mason v. Bristol - 379 
 
 V. Fearson 63 
 
 V. Lancaster 609, 682 
 
 V. Muncaster 431 
 
 V. Pitt 126 
 
 Master v. Warren 789 
 
 Maurice v. New York 605 
 
 Matheney v. Golden 61 
 
 Matthews v. Kelsey 558, 581 
 
 Maurin v. Smith 671 
 
 May V. Detroit 388 
 
 V. Railroad Co. 483 
 
 Mayberry v. Franklin 
 
 Mayhew y. Gayhead 236 
 
 Mayo V. Murchie 499 
 
 V. James 476, 744 
 
 Mayor, Matter of 616 
 
 V. Allaire - 303 
 
 V. Attorney General 437 
 
 V. Avenue R. R. Co. 
 
 272, 391, 293 
 V. Bailey 
 
 463, 610, 773, 779, 797 
 V. Bank of Tennessee 
 
 590, 615 
 V. Beasley 353, 355, 291, 606 
 v. Cashman 616 
 
 V. Colchester 
 V. Colgate 660 
 
 V. Conner 310 
 
 V. CunUfE 
 V. Elliott 437, 443 
 
 V. Franklin 533 
 
 V. Geisel 190 
 
 V. Gloucester 437 
 
 V. Graves 240 
 
 V. Gravier 530,533 
 
 V. Hartridge 391, 639 
 
 V. Henly 745 
 
 V. Hopkins 43, 514 
 
 V. Horn 155 
 
 V. Howard 655, 656 
 
 V. Hyatt 264, 303, 333 
 
 V. Leverich 514 
 
 V. Lockett 147 
 
 V. Long 242, 360, 469 
 
 V. Lord 685, 688, 698, 699, 
 701, 711, 756, 757, 759 
 V. Lyme Regis 240 
 
 V. McKee 655 
 
 V. Maggioli 531 
 
 V. Meserole 58,737 
 
 V. Morgan 139, 345, 368 
 
 V. Mutual Bank 613 
 
 V. Mchols 353, 364, 3^3 
 
 Mayor v. Omburg 101 
 
 V. Ordrenan 272, 277, 279 
 V. Pedley 313 
 
 V. Pentz 757, 759 
 
 V. Peyroux • 318 
 
 V. Phelps 275 
 
 V. Pilkington 178 
 
 V. Regina 700 
 
 T. Richardson 479, 485 
 
 V. Rood 
 , V. Rouse 803 
 
 V. Rowland 65 
 
 V. Savannah 
 v. Shaw 
 
 174, 183, 184, 740, 741, 743 
 
 V. Sheffield 790 
 
 V. Shelton 30 
 
 V. Simpson 197 
 
 V. Slack 306 
 
 V. State 28, 137, 669 
 
 V. Steamboat Co. 
 
 V. Stuyvesant 504,507 
 
 V. Thome 256, 838 
 
 V. Tows . 34 
 
 V. Troy R. R. Co. 795 
 
 V. Williams 339 
 
 V. Winfield 253, 355 
 
 V. Winter 883 
 
 V. Wright 190, 343, 511 
 
 V. Tuille 55, 373, 375, 279, 
 
 381, 385, 391, 395, 335, 606 
 
 Mayor of Albany's Case 742 
 
 Durham's Case 156,683 
 
 Mays V. Cincinnati 
 
 55, 351, 392, 395, 593, 605, 606 
 
 MaysvUlev. Shultz 53 
 
 McAden v. Jenkins 730J 
 
 McAllister v. Clark 310 
 
 McCall V. Byram Man'fg Co. 158, 159 
 
 McCalla v. County 785 
 
 McOann v. County 480 
 
 McCartee v. Orphans' Soc. 432,433,436 
 
 McCarthy v. Bauer 776 
 
 T. Chicago 153, 582 
 
 V. Syracuse 554, 790, 801 
 
 v. Village 785 
 
 McClung V. Silliman 670, 693 
 
 V. St. Paul 169 , 
 
 McCollough V. Mayor 778 
 
 McComber v. Taunton 788 
 
 McConnel v. Lexington 494 
 
 McCoombs v. Akron 783 
 
 McCord V. Ochiltree 442 
 
 McCormick v. Bay City 176, 229, 347 
 McCoy v. Chillicothe 176, 177 
 
 V. Harnett 705 
 
 McCrackin v. San Francisco 
 89, 219,230,372, 382,388,387,446,750 
 
TABLE OF CASES CITED. 
 
 37 
 
 McCready v. Guardians 321 
 
 McCrory v. Griswold 476 
 
 McCulloch V. State 248 
 
 MoCullom V. County 536, 537, 789 
 McCuUough V. Maryland 18, 588, 591 
 V. Mayor 418, 677 
 
 V. Moss 407 
 
 McCunn's Case 163 
 
 McOure v. Bennett 407 
 
 McCutchen. Re 801 
 
 McDermond v. Kennedy 607 
 
 McDermott v. Met. Police Board 
 
 149, 245 
 
 McDonald v. Elfe 744 
 
 V. Red Wing 757 
 
 V. Schell 367, 482 
 
 v. Schneider 449 
 
 McDonough Will Case 
 
 14, 427, 435, 436, 437, 439 
 McDonough v. Nevada City 789 
 
 McDougal V. Supervisors 65 
 
 McEwen v. Taylor 78 
 
 McFarlane v. Insurance Co. 241 
 
 McParland v. Kerr 433, 531 
 
 v. Railroad Co. 570 
 
 McGary v. Lafayette 769, 770, 789 
 McGear v. WoodrufE 361 
 
 McGehee v. Mathis 481, 596 
 
 McGinnity v. New Tork 790, 795 
 McGonigle v. Allegheny 596, 638 
 McGraft v. Brock 458, 656, 660 
 
 McGregor v. Boyle 544, 801 
 
 McGuinn v. Peri 639 
 
 Mclnnery v. Reed 618 
 
 Mclntire v. State 488 
 
 Mclntyre v. Wood 692 
 
 McKee v. McKee 285 
 
 V. Perchment 499, 501, 503 
 V. St. Louis 494, 499 
 
 V. Town Council 295, 744, 751 
 McKean v. Louisville 669 
 
 McKenna v. Commissioners 503 
 
 McKnight v. New Orleans 871 
 
 McLaughlin v. Cluley 135 
 
 V. Municipality 
 
 473, 474, 778 
 
 V. Railroad Co. 521, 564 
 
 V. Stevens 74, 802, 504 
 
 McLean v. Brantford 384 
 
 V. Flagg 596, 668 
 
 McLot V. Davenport 787 
 
 McMahon v. Railroad Co. 488 
 
 McMasters v. Commonwealth 481,596 
 
 McMillen v. Boyles 46, 424 
 
 V. City Council 278, 866 
 
 McNamara v. Estes 636 
 
 McRae v. O'Lain 285 
 
 McSpedon v. Mayor 383, 401 
 
 Mc Williams v. Morgan 510 
 
 Meagher v. County 169, 174, 357 
 
 Meacham v. Raiboad Co. 487 
 
 Mealing v. Augusta 744 
 
 Means v. Hendershott 91 
 
 Mears v. Graham 407 
 
 V. Wilmington 783 
 
 M. E. Corporation v. Herrick • 235 
 Mechanics' Bank v. Bank of 
 
 Columbia 876 
 
 Mechanicsburg v. Meredith 579, 785 
 Medical Institute v. Patterson 22 
 Med way Cotton Manuf. Co. v. 
 
 Adams 121 
 
 Meech v. Buffalo 398 
 
 Meeker v. Van Rensselaer 338, 305 
 Megowan v. Commonwealth 
 
 298, 299, 330 
 Memphis Freight Co. v. Memphis 
 
 464, 465 
 
 Mendota v. Thomson 351 
 
 Mercer County v. Hackott 
 
 104, 405, 418, 430, 431, 423, 424 
 Mercer -V. Railroad Company 
 
 43, 433, 467, 518, 538, 555, 558, 570 
 Merchants' Bank v. Cook 762 
 
 Merriamv. Moody 55, 353, 656, 657 
 V. New Orleans 291, 594 
 
 Merrick v. Amherst 592, 594 
 
 V. Plank Road Co. 385 
 
 Merrill v. Burbank 450 
 
 V. Dixfleld 398 
 
 V. Humphrey 737, 738 
 
 V. Plainfleld 98, 733, 734 
 
 Mersey Dock Cases 778, 781, 789, 802 
 Mersey Docks v. Gibbs 77, 753, 790 
 V. Penhallow 752 
 
 Merwin v. Chicago 65 
 
 Messenger v. BuflFalo 375, 403 
 
 Metropolitan Board of Health v. 
 
 Heister 9, 149, 803, 518 
 
 Metcalf V. St. Louis 245, 305 
 
 Methodist Church v. Baltimore 59, 
 
 352, 471, 476, 483 
 
 V. Hoboken 
 
 495, 508,. 509, 513, 530, 523 
 
 Meuser v. Risdon 60, 618, 648, 653 
 
 Meyer v. Carolan 669 
 
 V. Muscatine 
 
 58, 84, 104, 106, 393, 405, 
 
 407, 414, 416, 418, 420, 421 
 
 V. Newark 488 
 
 Michel V. Police Jury 400 
 
 Michie, Re, 58, 639 
 
 Middlesex, &c. v. Davis 117 
 
 Middletown v. Allegheny Co. 82 
 
 V. Lowe 671 
 
 Milburn v. Cedar Rapids 545 
 
38 
 
 TABLE OP CASES CITED. 
 
 Milbum V. Eailroad Co. 
 
 545, 559, 562, 574 
 
 Miles V. Bough 331, 265 
 
 V. Chamberlain 273, 282 
 
 V. Charletou 28 
 
 Milford V. Holbrook 788, 795 
 
 MUford County v. Brush 131 
 
 Milhau V. Sharp 61, 
 
 520, 533, 546, 551, 563, 567, 735 
 
 Mill Bam Foundry v. Hovey 180 
 
 Miller v. Burch 808, 313 
 
 V. Ford 176 
 
 V. Iron Co. 763 
 
 v. Lerch 437 
 
 V. Lynchburg 406 
 
 V. Milwaukee 
 
 V. North Fredericksburg 785 
 
 V. Savannah Fire Co. 94 
 
 V. Supervisors 168 
 
 V. Thomson 406 
 
 MilUard v. Lafayette 473, 474 
 
 Mill's Case 709 
 
 MJllfl V. Brooklyn 753, 788, 797, 
 
 799, 800, 801, 803 
 
 V. Charleton 387, 389, 653, 738 
 
 V. Gleason 83, 316, 385, 387,407 
 
 V. Thornton 635 
 
 V. "Williams 33 
 
 Milne v. Davidson 345, 305, 809 
 
 V. Mayor 135 
 
 V. Williams 29 
 
 Milward v. Thatcher 165, 166 
 
 Milwaukee v. Milwaukee 138 
 
 V. Bailroad Co. . 559 
 
 Milwaukee Iron Co. v. Hubbard 738 
 
 V. Schubel 740 
 
 Milwaukee R. E. Co., Case of 712 
 
 Miner's Bank v. United States 736 
 
 Miner's Ditch Co. v. Zellerbach 
 
 29, 373, 450, 749 
 Minor v. Bank 175 
 
 Minot v. Boston Asylum 133 
 
 V. Curtis 128 
 
 Minturn v. Larue d5, 78 
 
 Mitchell V. Burlington 
 
 84, 105a, 407, 416S 
 V. Davenport 653 
 
 V. Foster 136 
 
 v. Hay 669 
 
 V. Lemon 347 
 
 V. Milwaukee 388, 738 
 
 V. Eockland 13, 98, 149, 
 176, 305, 381, 768, 772, 775 
 V. Turnpike Co. 480 
 
 Moale V. Baltimore 
 
 455, 481, 503, 589, 596 
 
 Mobile V. Dargan 632 
 
 V. Eslava . 71 
 
 Moir V. Monday 358 
 
 Moiser v. Tompson 180 
 
 Monaghan v. Philadelphia 685, 687 
 Moneson v. Sanford 788 
 
 Monmouth V. Gardiner 579, 580 
 
 Monterey v. Commissioners 476, 741 
 Montpelier v. East Montpeller 
 
 37, 41, 44, 47, 137 
 Montville v. Haughton 156 
 
 Mooers v. Smedley 737 
 
 Mooney v. Kennett 346, 347 
 
 Modr V. Comville 387 
 
 Moore v. Abbott 788 
 
 V. Baltimore 457 
 
 V. Mayor 459 
 
 V. Newfield 304, 337, 343, 355 
 V. People 303 
 
 V. Eailroad Co. 770 
 
 Moran v. Commissioners 416 
 
 V. Miami County 
 
 108, 404, 419, 430, 435 
 Morano v. Mayor 313, 331 
 
 Morey v. Newfane 30, 762 
 
 Morf ord v. Barnes 367, 488 
 
 V. Unger 38, 136, 635 
 
 Morgan v. Beloit 698 
 
 V. Dubuque 400 
 
 V. Quackenbush 137, 144 
 Morrell v. Dixfield 176, 386 
 
 V. Sylvester 153 
 
 Morris v. Baltimore 731 
 
 V. Bowers 491 
 
 V. Burdett 178 
 
 V. Chicago 468 
 
 V. People 35, 98 
 
 V. Eome 333 
 
 V. Underwood 723 
 
 Morris' Case 713 
 
 Morris Canal Co. v. Fisher 405 
 
 V. Jersey City 
 
 497, 737, 740, 741 
 Morrison v. Lawrence 
 
 239, 336, 337, 768, 773 
 V. Hershire 596, 688, 738 
 V. McDonald 147, 357 
 
 Morse v. Eichmond 788 
 
 Moses V. Eailroad Co. 
 
 525, 555, 656, 558, 560, 570, 574 
 Mosey v. Troy 788 
 
 Mosley v. Alston 210 
 
 V. Walker 313 
 
 Moss V. Oakley 406 
 
 Mott V. Hicks 176, 376, 388, 407 
 
 V. Pa. E. E. Co. 61 
 
 V. Eeynolds 232, 283 
 
 Mount Carmel v. Wabash Co. 391,399 
 Mount Morris. Square, Ee 
 
 239, 740, 743, 743 
 
TABLE OF CASES CITED. 
 
 39 
 
 Mount Pleasant v. Breeze 
 
 350, 302, 339 
 Mount Washington Co., Petition 
 
 of 483 
 
 Mouse's Case 756 
 
 Mowatt V. Wright 751 
 
 Mower v. Leicester 13, 763, 768, 786 
 
 Moyamensing Com. v. Long 530, 531 
 
 Mullarky v. Cedetr Falls 580 
 
 Mumma v. Potomac Co. 113, 114 
 
 Municipality v. Bank 611, 616, 638 
 
 V. Blanc 
 
 V. Blineau 356, 313 
 
 V. Botts 653 
 
 V. Caldwin 176 
 
 V. Commissioners 53 
 
 V. Cotton Press Co. 610 
 
 V. Cutting 344, 313, 317, 
 
 323, 343, 344, 353 
 
 V. Dubois 391 
 
 V. Duncan 594, 631 
 
 7. Dunn 481 
 
 594, 596, 600, 619 
 
 V. Gas Light Co. 539 
 
 V. Guillotte 594,600,650 
 
 V. Hart 
 
 V. Johnson 621, 633 
 
 V. Kirk 511 
 
 V. Levee Co. 473, 495 
 
 V. McDonough 407, 434 
 
 V. Michoud 634 
 
 V. Morgan 354 
 
 T. Palfrey 504 
 
 V. Pance 656 
 
 V. Pease 67, 76 
 
 V. Railroad Co. 611, 616 
 
 V. Theatre Co. 46 
 
 V. ttrsuline Nuns 634 
 
 V. Wheeler 595 
 
 V. White 594, 596, 600 
 
 V. Wilson 303 
 
 Munn V. Pittsburg 803 
 
 Munsell v. Temple 395 
 
 Murdock, Ex parte 138 
 
 V. Academy 191, 193 
 
 V. Aiken 433 
 
 V. Warwick 789 
 
 V. Woodson 36, 38 
 
 Murphy v. Chicago 555, 563, 783 
 
 V. City Council 69, 73, 76 
 
 V. Gloucester 788 
 
 V. People 366 
 
 Murray v. Lardner 405 
 
 Murtaugh v. St. Louis 775 
 
 Muscatine v. Hershey 74, 76 
 
 T. Railroad Co. 
 
 41, 594, 608, 633 
 T. Steck 147, 85.7, 368, 369 
 
 Muscatine Turnverein v. Funck 
 
 110, 114 
 Musgrove v. Catholic Church 
 
 349, 306, 307 
 
 V. Nevison 302 
 
 Musser v. Johnson 131 
 
 Muzzy V. Shattuck 176 
 
 Myers v. Bank • 18 
 
 Y. Croft 444 
 
 V. Irwin 23 
 
 V. People 357, 866 
 
 V. Simms 476 
 
 Mylert v. Sullivan Co. 751 
 
 Myrick v. La Crosse 471, 642 
 
 N 
 
 Nagle V. Augusta , 540 
 Napman v. People 358, 336, 347, 355 
 
 Nash V. St. Paul 388 
 
 Nashville v. Althrop 680, 683 
 
 V. Thomas 639 
 National Bank v. Commonwealth 591 
 
 Navigation Co. v. Portland 605 
 
 Naylor v. Galesburg 349 
 
 Neal V. Railroad Co. 470 
 
 Neale v. Overseers 154 
 
 Neall V. mil- 181 
 
 Nebraska City v. Campbell 788, 789 
 
 Neenan v. Smith 596, 653 
 
 Negus' Case 739 
 
 NeiflFer v. Bank " 373 
 
 Nelson v. Godfrey 532, 554 
 
 V. La Porte 546,607 
 V. Milford 98, 99, 398 
 
 Neuer v. Fallon 65 
 Neuse River Co. v. Commissioners 
 
 664, 659 
 
 Nevins v. Peoria 799, 800 
 
 New Albany v. Meekin 635, 636 
 
 V. Sweeney 400, 401 
 
 Newark v. Elliott 445 
 
 V. Funk 65 
 
 V. State 696 
 
 Newberry v. New York 760 
 
 New Boston v. Dumbarton 51 
 
 Newby v. Piatt County 488 
 
 Newcastle, Re 805 
 
 Newcomb v. Police Jury 400 
 
 Newell V. People 85 
 
 New Haven v. Sargent 543, 544 
 
 V. Whitney 636 
 
 Newing v. Francis 134 
 
 New London v. Brainard 
 
 55, 733, 788, 735, 751 
 
 V. Montville ' 139 
 
 Newman v. Justices 685 
 
 V. Scott Co. 685 
 
40 
 
 TABLE OF CASES CITED. 
 
 New Orleans v. Anderson 388 
 
 V. Bank 594, 628 
 
 V. Bondu 289, 345 
 
 V. Costello 
 
 373, 387, 340, 357 
 V. Eliott 594 
 
 V. Grailile 136, 655, 656 
 V. Guillotte 313, 394 
 V. Insurance Co. 64, 446 
 V. Lambert 308 
 
 V. Magnon 530 
 
 V. Michoud 634 
 
 V. Miller 302 
 
 V. Philipi 250, 353 
 
 V. Poutz 46, 595 
 
 V. Staiger 594 
 
 V. St. Louis Church 
 
 338, 349, 806, 307, 394 
 
 V. South Bank 594 
 
 V. Turpin 291, 594 
 
 V. United States 67, 76, 
 
 490, 493, 494, 497, 508, 
 
 512, 514, 528, 531 
 
 Newport v. Taylor 74, 497, 503, 504, 
 
 509, 511, 529 
 
 V. Trustees 32 
 
 New York v. Second Ave. E. R. Co. 
 
 61,510,609 
 New York Conference v. Clarkson 
 
 130 
 
 New York Institute v. How 132 
 
 New York, &c. R. R. Co. v. Marion 368 
 
 New York, &c. School, Matter of 246 
 
 Nichol V. Boston 147, 148, 176 
 
 V. Gardner 69, 70 
 
 V. Mayor 55, 104 
 
 V. Nashville 104, 106 
 
 Nichols V. Bridgeport 
 
 469, 470, 473, 481, 596 
 
 V, Comptroller 671 
 
 Nicholson v. Bradford Union 384 
 
 V. Elizabeth City 765 
 
 V. Railroad Co. 566 
 
 Nicholson Pavement Co. v. Painter 
 
 390, 610 
 
 Nickerson v. Dyer 176 
 
 Nightingale's Case 313, 330, 333, 324 
 
 Niles Township v. Martin 761 
 
 Nill V. Jenkinson 737 
 
 Noble V. BuUis 751 
 
 Nolan V. New Orleans 175 
 
 Nolin V. Mayor 309 
 
 Norris v. Boston 591 
 
 V. Litchfield 789 
 
 y. Mayor 126 
 
 V. Staps 250, 353, 346,348,353 
 
 V. Trustees 30, 43,47 
 
 Norristown v. Mayer 581, 790 
 
 Northern Liberties v. St. John's 
 
 Church 616, 660 
 
 North Hempstead v. Hempstead 
 
 30, 32, 138, 431, 485, 443, 529 
 North Lebanon v. Arnold 763 
 
 North Missouri Railroad Co. v. 
 
 Maguire 44, 588, 590, 639 
 
 North Yarmouth v. Skillings 
 
 30, 47, 138, 139 
 North "Whitehall v. South White- 
 hall 139 
 North wood V. Barrington 304 
 Norton v. Mansfield 13 
 Norwich v. Breed 788, 795 
 V. Hubbard 643, 660 
 V. Story 537 
 Norwich Gas Light Co. v. Norwich 
 
 City Gas Co. 30, 546, 548 
 
 Nott's Case 334 
 
 Nowell V. Mayor 83 
 
 V. Wright 176, 773 
 
 iSToyes v. Ward 491, 493, 493, 494,538 
 Nugent V. State 357 
 
 O 
 
 9,19 
 
 Oakes v. Hill 
 Oakland v. Carpenter 
 
 60, 61,176,319,737, 738 
 v. Whipple 636, 653 
 
 Oakley v. Mayor 631 
 
 V. Williamsburg 543 
 
 Oates V. Hudson 751 
 
 O'Brien Co. v. Brown 738 
 
 O'Brien v. St. Paul 803 
 
 O'Conner v. Pittsburg 
 
 518, 548, 555, 557, 783 
 
 O'Docherty v. Archer 144 
 
 O'Donnel v. City 406 
 
 V. Bailey 590, 639 
 
 Oeveriche v. Pittsburg 106 
 
 O'Ferrall v. Colby 676 
 
 Ogden V. Raymond 176 
 
 Ogg V. Lansing 773 
 
 O'Hara v. Portland 30 
 
 Ohio V. Commissioners 104 
 
 V. Gazley 653 
 
 V. Hibbard 653 
 
 V. Moffitt 716 
 
 Ohio, &c. Co. V. Merchants' Co. 383 
 
 O'Kane v. Treat 536, 596 
 
 Olcutt V. Supervisors 
 
 34<t, 105a, 415, 4166, 668 
 
 O'Leary v. Sloo 600, 635 
 
 O'Linda v. Lothrop 554, 581, 585 
 
 Oliver v. Washington Mills 591 
 
 V. Worcester 
 
 39, 763, 764, 780, 786 
 Olney v. Harvey 53, 116, 127, 683 
 
TABLE OP OASES OWED. 
 
 41 
 
 Olney v. Pearce 154 
 
 V. Wickes 176 
 
 O'Neill V. Police Jury 80 
 
 Onstott V. Murray 499, 500, 501 
 
 Ontario Bank v. Bunnell BIS, 639 
 Oregon v. Pyle 168 
 
 Orr V. Baker 616 
 
 Orton V. State 399 
 
 Osborn v. Bank of United States 
 
 18, 591 
 
 V. Danvers 751 
 
 V. Mobile 590 
 
 V. Tunis 450 
 
 Osgood V. Green 101 
 
 V. Manhattan Co. 342 
 
 Oswald V. Genet 504 
 
 Oswego V. Oswego Canal Co. 505 
 
 Ottawa V. County 54 
 
 V. Macy 643 
 
 V. People 
 
 38, 63, 666, 669, 673, 695 
 
 V. Railroad Co. 643, 643, 740 
 
 V. Spencer 481, 603, 616 
 
 V. Trustees 616 
 
 V. "Walker 536 
 
 Overseers v. Kelly 139 
 
 V. Mayor 381 
 
 V. Overseers 139 
 
 V. Sears 9, 19, 31, 158 
 
 V. Supervisors 373, 431 
 
 Owen V. Smith 113, 114 
 
 Owings V. Speed 51, 341 
 
 Owners v. Albany 463, 505 
 
 Pacific Railroad Co. v. Chrystal 488 
 
 v. Lincoln Co. 18 
 
 V. Governor 671 
 
 Pack V. Mayor 793, 793 
 
 Packard v. New Bedford 788 
 
 Packet Co. v. Atlee 67, 70 
 
 Paddleford v. Mayor 630 
 
 Page V. Baltimore 67 
 
 V. Fazakerly 333 
 
 ' V. Frankfort 98 
 
 V. Graham 593 
 
 V. Hardin 174, 188 
 
 V. Heinburg 433, 436 
 
 V. State 398 
 
 V. St. Louis 58, 616 
 
 Paine, Ex parte 683 
 
 V. Commissioners 539 
 
 V. Spratley 
 
 27, 55, 616, 656, 658 
 Painter v. Pittsburg 791 
 
 Pallister v. Mayor 83 
 
 Palmer v. Andover 788 
 
 Palmer v. Carroll 175 
 
 V. Hicks 134 
 
 V. Mayor 173, 173 
 
 V. Stump 401 
 
 Palmyra v. Morton 
 
 390, 471, 481, 596, 643, 643, 660 
 Pangborn v. Westlake 491 
 
 Paris v. Graham 353 
 
 V. People 176, 747 
 
 Parish V. Jacobs 49C 
 
 Parker v. Commonwealth 23 
 
 V. Lowell 797 
 
 V. Macon 790 
 
 V. Mason 794 
 
 Parks V. Boston 58, 461, 
 
 470, 476, 739, 740, 741, 74a 
 V. Newburyport 799 
 
 Parnaby v. Canal Co. 761 
 
 Parr v. Attorney General 
 
 141, 368, 730 
 
 Parrott v. Eyre 170 
 
 Parry v. Berry 311 
 
 Parsons v. Brainard 309 
 
 V. Goshen 13, 381 
 
 V. Trustees 505, 533 
 
 Passenger, &c. Co. v. Birmingham 570 
 
 Paston V. Urber 183 
 
 Patch V. Covington 774 
 
 Paterson Gas Light Co. v. Brady 549 
 
 Patrick v. Commissioners 457 
 
 Patterson v. Bowes 147, 730 
 
 V. Society 
 
 33, 24, 30, 135, 616 
 
 Pattison v. Supervisors 90 
 
 Pattonv. Springfield 645 
 
 Paul V. Kenosha 384, 750 
 
 V. Newark 488 
 
 V. Virginia 591 
 
 Paulet V. Clark 40, 491, 494 
 
 Paxson V. Sweet 361, 345, 637 
 
 Payne v. Brecon 393 
 
 V. Mayor 83 
 
 V. Treadwell 513 
 
 Peabody v. Flint 310 
 
 Peace v. Augusta 630 
 
 Peachy v. Somerset 386 
 
 Pearce v. Milwaukee 783 
 
 V. Railroad Co. 749 
 
 Pease v. Cornish 73, 410, 413 
 
 V. Dayton 789 
 
 Peck V. Austin 318 
 
 V. Ellsworth 786 
 
 V. Fox Lake 733 
 
 V. Lockwood 359 
 
 V. Prov. &c. Co. 493 
 
 V. Smith 524, 544 
 
 Pedrick V. Bailey 147, 253, 538 
 
 Pees V. Leeds 704 
 
4S 
 
 TABLE OP CASES CITED. 
 
 Pegram v. Commissioners 713 
 
 V. County 685 
 
 Petin V. Newell 767 
 
 V. Reynolds 414 
 
 T. Smelzell 298, 299 
 
 Pellav. Scholte 
 
 494, 501, 510, 539, 531 
 Pendegast v. Peru 268 
 
 Pender v. King 159 
 
 Pendleton v. Bank of Kentucky 131 
 V. Perkins 65 
 
 Pendleton County v. Amy 
 
 418, 430, 4336 
 Peninsular R. R. Co. v. Howard 482 
 Pennington v. Taniere 380, 449 
 
 Pennsylvania District Election 136 
 Pennsylvania Hall, Re 366, 760 
 
 Pennsylvania R.R.Co.v. Heister 488 
 V. Philadelphia 
 105, 106, 108 
 Pennoyer v. Detroit 799 
 
 Penny Pot Landing Case 
 
 504, 511, 530 
 
 Penobscot Boom Corp. v. Lawson 30 
 
 Penrose v. Taniiere 373 
 
 Pentz V. .3;tDa Insurance Co. 759 
 
 People V. Adams 339, 341, 305 
 
 V. Albany 77, 780 
 
 v. Assessors 14 
 
 V. Attorney General 695 
 
 V. Auditors 170 
 
 V. Bacon 703 
 
 V. Baker 694, 705 
 
 V. Bank 55, 736 
 
 V. Bartlett 160, 214 
 
 V. Batchelor 
 
 333, 333, 324, 225, 668, 749 
 V. Bearfield 182, 191, 193 
 
 V. Bedell 146, 151 
 
 V. Benevolent Society 193 
 V. Benson ' 550 
 
 V. Bissell 671 
 
 v. Board of. Trade 181 
 
 V. Bond 41 
 
 V. Brenbam 136 
 
 V. Brennan 82, 668, 669, 685 
 V. Brighton 469. 473, 476 
 V. Brooklyn 44, 473, 481, 587, 
 596, 603, 616, 636, 645, 667, 
 668, 669, 695 
 V. Canty 592, 603 
 
 V. Carpenter 134, 310, 
 
 508, 530, 531, 558, 669, 718 
 V. Carrique 166 
 
 V. Cassidy 638 
 
 V. Chicago 9, 43, 592, 694 
 v. Cicotte ' 138, 139, 144 
 V. Clark County 686 
 
 People V. 
 
 Coleman 
 
 
 
 599 
 
 V. 
 
 Collins 
 
 662, 
 
 668 
 
 695 
 
 V 
 
 Commissioners 
 
 
 706 
 
 V 
 
 Comptroller 
 
 
 181 
 
 188 
 
 V. 
 
 Conover 
 
 
 151 
 
 726 
 
 v. 
 
 Contracting Board 
 
 669 
 
 V. 
 
 Cook 
 
 
 136, 
 
 210 
 
 T. 
 
 Coon 
 
 43 
 
 106 
 
 398 
 
 V. 
 
 Cooper 
 
 
 
 579 
 
 V. 
 
 Cornell 
 
 
 
 240 
 
 . V. 
 
 County 
 
 
 
 406 
 
 T. 
 
 Covert 
 
 
 741, 
 
 743 
 
 V. 
 
 Croton Aqueduct 
 
 Board 
 
 
 
 
 
 392 
 
 V. 
 
 Cunningham 
 
 
 521 
 
 581 
 
 V. 
 
 Davidson 
 
 
 
 70 
 
 V. 
 
 Detroit 303, 
 
 344 
 
 679 
 
 680 
 
 V. 
 
 Doe 
 
 
 
 614 
 
 V. 
 
 Draper 9, 24 
 
 34, 
 
 137, 
 210 
 
 149, 
 718 
 
 V. 
 
 Dutcher 
 
 
 
 433 
 
 V. 
 
 Edmunds 
 
 
 667 
 
 668 
 
 V. 
 
 Everett 
 
 
 
 708 
 
 V. 
 
 Pairbury 110 
 
 ,136 
 
 ,158 
 
 675 
 
 T. 
 
 Earnham 
 
 
 51, 
 
 135 
 
 V. 
 
 Finger 
 
 
 
 706 
 
 V. 
 
 Plagg 385, 
 
 387, 
 
 538, 
 668, 
 
 596, 
 685 
 
 V. 
 
 Fletcher 
 
 
 
 680 
 
 V. 
 
 Galesburg 
 
 
 
 714 
 
 V. 
 
 Gilbert 
 
 
 
 529 
 
 V. 
 
 Gray 
 
 
 
 406 
 
 V. 
 
 Halsey 
 
 
 
 695 
 
 V. 
 
 Hatch 
 
 
 
 695 
 
 V. 
 
 Harris 
 
 
 
 93 
 
 V. 
 
 Hartwell 
 
 
 723, 
 
 733 
 
 V. 
 
 Hawley 
 
 
 
 93 
 
 V. 
 
 Hayden 
 
 
 
 480 
 
 V. 
 
 Head 
 
 680 
 
 684, 694 
 
 V. 
 
 Higgins 
 
 
 
 183 
 
 V. 
 
 Hill 
 
 30, 36, 
 
 151 
 
 V. 
 
 Hilliard 
 
 680, 
 
 684, 
 
 694 
 
 V. 
 
 Hillsdale, &c 
 
 Co. 
 
 
 721 
 
 V. 
 
 Holden 
 
 
 
 715 
 
 V. 
 
 Holmes 
 
 
 
 .155 
 
 V. 
 
 Hnrlburt 
 
 
 
 
 
 9, 9b, 34, 38, 
 
 33, 
 
 39, 40, 93 
 
 V. 
 
 Insurance Co 
 
 
 
 210 
 
 V. 
 
 Jackson 
 
 302, 
 
 495, 
 
 520 
 
 V. 
 
 Johnson 
 
 
 272, 
 
 344 
 
 V. 
 
 Johr 
 
 
 
 155 
 
 V. 
 
 Jones 
 
 
 491, 
 
 505 
 
 T. 
 
 Judge 
 
 
 483, 
 
 483 
 
 V. 
 
 Kerr 43, 
 
 496, 
 
 525, 
 
 555, 
 
 
 
 656, 
 
 570, 
 
 574 
 
 V. 
 
 Kilduff 141, 
 
 680, 
 
 682, 
 
 683 
 
 V. 
 
 Kimball 
 
 
 
 483 
 
 V. 
 
 Kip 
 
 
 
 680 
 
TABLE OF CASES ClTED. 
 
 4^ 
 
 People V. Knight 136 
 
 V. Law 556 
 
 V. Lawrence 98, 691 
 
 V. Lewis 175 
 
 v. Logan County 433 
 
 V. Loomis 187, 726 
 
 V. Loiinds 723 
 
 V. Love 131 
 
 V. Lowbcr 315, 7306 
 
 V. Mahany 
 
 37, 38, 33, 34, 139, 168 
 V. Marsh 
 V. Martin 307, 335 
 
 V. Matteson 137, 680 
 
 V. Mauran 
 V. Maynard 51 
 
 V. Mayor 151, 346, 368, 476, 
 481, 593, 596, 598, 601, 616 
 666, 667, 668, 7305, 740, 
 741, 743 
 V. McCreery 587, 599, 615, 616 
 V. McKinney « 176 
 
 V. Mead 411, 419, 430, 436 
 V. Medical Society 181 
 
 V. Mellen 38 
 
 V. Metropolitan Police Board 
 134, 149, 163, 688, 706 
 
 V. Miller 
 
 174 
 
 V. Miner 
 
 730J 
 
 V. Mitchell 104 
 
 106, 434 
 
 V. Morrell 34. 
 
 139, 168 
 
 V. Morris 4, 9S, 33, 
 
 JO, 38, 53 
 
 V. Mott 
 
 340 
 
 V. Nearing 
 
 463 
 
 V. New York 
 
 403, 680 
 
 V. Niles • 
 
 635 
 
 V. Nyland 
 
 357 
 
 V. Oakland Bank 
 
 733 
 
 V. Ogdensburgh 635 
 
 , 639,740 
 
 V. Onandaga 
 
 44 
 
 V. Pacheco 
 
 695 
 
 V. Pearson 
 
 707 
 
 V. Pease 
 
 144 
 
 V. Phillips 
 
 134 
 
 V. Police Board 
 
 740 
 
 V. Police Justice 
 
 366 
 
 V. Pontiac Bank 
 
 738 
 
 V. Porter 
 
 165 
 
 V. Potter 
 
 50 
 
 V. Power 
 
 35 
 
 V. Pratt 
 
 694 
 
 V. President 
 
 33,51 
 
 V. Prison Inspectors 
 
 695 
 
 V. Railroad Co. 
 
 
 55, 469, 570, 599, 
 
 719, 730& 
 
 V. Ransom 
 
 667, 693 
 
 v. Rector 
 
 308 
 
 V, Reynolds 
 
 33 
 
 V. 
 V. 
 
 People V. Richardson 
 
 718, 716, 719, 736 
 Rochester 335, 689, 653, 743 
 Runkle 
 
 131, 158, 159, 160, 314 
 
 Salem 105, 105J, 415 
 
 Salomon 33, 48, 593, 664, 
 
 666, 673, 676 
 
 V. San Francisco 
 
 365, 374, 695, 704 
 V. Sargent 809 
 
 V. Scrugham 680, 683 
 
 V. Seaman 137, 716 
 
 V. Seymour 653, 695, 707 
 v. Slaughter 359, 361, 894 
 V. Smith 433, 465, 467, 740 
 V. Stevens 
 
 136, 160, 667, 686, 683 
 
 V. Stilwell 476 
 
 V. St. Louis 313 
 
 T. Stout 33, 398, 733 
 
 V. Supervisors 88, 90, 169, 
 
 172, 881, 398, 430, 434, 
 
 537, 665, 667, 668, 669, 
 
 685, 689, 690, 694, 707, 
 
 713, 740 
 
 Sweeting 716, 733 
 
 Swift . 385 
 
 Tazwell County 
 
 108, 414, 438 
 
 Thompson 
 
 Throop 
 
 Thurber 
 
 Tieman 
 
 Tracy 
 
 Treasurer 
 
 Turner 
 
 University Regents 
 
 Utica Ins. Co. 
 
 668, 713, 734 
 358 
 
 391 
 159 
 695 
 696 
 334 
 695 
 713 
 6^, 716 
 
 Vail 
 Vanderbilt 
 
 70, 71, 311, 530, 533 
 
 Van Slyck 
 
 Walker 
 
 Warfleld 
 
 Warren 
 
 Weant 
 
 Wetherell 
 
 Wharf Co. 
 
 Whitcourt 
 
 White 
 
 Whyler 
 
 Wiant 
 
 Wilson 
 
 Winnehammer 
 
 Wood 
 
 Works 
 
 716, 726 
 
 340 
 
 33 
 
 176 
 
 33 
 
 143, 161, 723 
 
 73, 433 
 
 731 
 
 314, 668 
 
 596, 616 
 
 673 
 
 357 
 
 757 
 
 41, 176 
 
 389 
 
 Wren 
 
 33, 80, 109, 110 
 
44 
 
 TABLE OF CASES CITED. 
 
 People T. Yates 699 
 
 People's Bailroad v. Memphis Rail- 
 road 61, 373, 558, 567 
 Peoria v. Calhoun 360, 263 
 V. Johnson 501 
 V. Kidder 481 
 Perdue v. Corporation 799, 800, 801 
 V. Ellis 345, 353, 379, 399 
 Perin v. Carey 
 
 431, 436, 437, 438, 440, 443 
 
 Perkins v. Insurance Co. 383 
 
 V. "Weston 289 
 
 Perley v. Chandler 496 
 
 V. Georgetown 770 
 
 Perin v. Railroad Co. 504, 510 
 
 Perry v. Dover 304 
 
 V. Ontario 384 
 
 v. Superior City 381 
 
 V. Tyner 331 
 
 V. Worcester 781, 797, 802 
 
 Pesterfield v. Vickers 149, 253, 773 
 
 Peterborough v. Lancaster 204 
 
 Peters v. State 762 
 
 Petersburg!! v. Mappin 398 
 
 V. Metzker 55, 273, 302 
 
 Peterson v. Mayor 93, 315, 383, 385 
 
 387, 388, 432 
 
 Petrie V. Doe 221 
 
 Pettigrew v. Evansville 781, 799 
 
 Petty V. Tooker 134 
 
 Peyton v. Hospital 242 
 
 Pfau V. Reynolds 790, 794 
 
 Phebe, The 72 
 
 Philadelphia V. Collins 779 
 
 V. Cooke 660, 751 
 
 V. Dickinson 479 
 
 V. Dyer 479 
 
 V. Eastwick 596 
 
 v. Field 
 
 30, 38, 43, 44, 588, 608 
 
 V. Flanigan 9, 87, 381 
 
 V. Fox 37, 47, 437 
 
 V. Given 169, 174 
 
 V. Greble 659 
 
 V. Hox 30 
 
 V. Lombard 570 
 
 V. Railroad Co. 445, 514, 
 
 539, 530, 538, 555, 
 
 557, 558, 570, 596 
 
 V. Tiyon 596, 647 
 
 V. Wistar G60 
 
 PhUlips V. Albany 104 
 
 V. Allen 379, 284, 325 
 
 V. Bloomington 80 
 
 V. CoflFee 130 
 
 V. Commonwealth 747 
 
 V. Mayor 168 
 
 V. Veazie 796 
 
 Phillips v. Wickham 109, 159, 253 
 Physicians v. Salman 117 
 
 Pickering v. Shotwell 437 
 
 Piemental v. San Francisco 
 
 319, 330, 373, 383, 387, 447, 750 
 
 Pierce v. Bartram 388, 389, 313, 319 
 
 V. Boston 653 
 
 V. Carpenter 124, 129 
 
 V. Richardson 176, 231, 232 
 
 V. Somerworth 131 
 
 Pienv. Shieldsboro 738 
 
 Pike V. Middletown 98, 99 
 
 Pike County v. State 695 
 
 Pilie v. New Orleans 173 
 
 Pillsbury v. Springfield 473 
 
 Pirn V. Ontario 384 
 
 Piper V. Chappel 275, 841, 348 
 
 V. Singer 590 
 
 Pitts V. Bonner 716 
 
 Pittsburg V. Craft 121 
 
 V. Grier 77, 778 
 
 V. Scott 520 
 
 V. Walter 639 
 
 V. Wood 596 
 
 Pittsonv. Clark 13 
 
 Placerville v. Wilcox 620 
 
 Plank Road Co. v. Husted 61 
 
 Plant V. Railroad Co. 563 
 
 Player v. Jenkins 313 
 
 Plimpton V. Somerset 39, 344, 361 
 
 Plum V. Canal Co. 543 
 
 Plunkett V. Crawford 139 
 
 Plymouth v. Jackson 30, 47, 137 
 
 V. Painter 160 
 
 v. Pettijohn 389, 591 
 
 Police Commissioners v. Louisville 
 
 33, 34, 149 
 Police Jury v. Britton 407 
 
 V. Shreveport 31 
 
 V. Succession of Mc- 
 
 Donough 104 
 
 V. Viilaviabo 389 
 
 Polk V. Plummer 14 
 
 Pollard v. Hagan 67 
 
 V. Wobum 789 
 
 Pollock V. Laurence County 
 
 686, 687, 705 
 Pomeroy v. Mills 496, 499, 508, 534 
 V. Raihroad Co. 557, 573 
 Pomeroy Salt Co. v. Davis 625 
 
 Pondv. Negus 228, 349 
 
 Pool V. Bentley 449 
 
 V. Boston 91, 173 
 
 Pope V. Commissioners 537 
 
 V. Headen 658 
 
 V. Union 503, 505 
 
 Poppen V. Holmes 384 
 
 Porter v. Blakely 133 
 
TABLE OF CASES CITED. 
 
 46 
 
 Porter v. Eailroad Co. 
 
 130, 555, 657, 563, 
 Port Gibson v. Moore 
 Portland v. Bangor 
 
 v. O'Neill 391, 
 
 V. Richardson 
 V. Whittle 503, 
 
 Port Wardens v. Pratt 
 V. Ship 
 Portsmouth, &c. Co. v. Watson 
 Post V. Pearsall 494, 
 
 Postmaster General v. Kice 
 Potter V. Luther 
 
 T. Menasha 809, 
 
 Potts V. Henderson 
 Pottsville V. Curry 
 Poulters Co. v. Phillips 361, 
 
 Poultney v. Wells 43, 47, 
 
 Pow T. Becker 
 Powel V. Madison 
 
 v. St. Joseph 
 Powers, Be 
 
 V. Sanford 
 V. Superior Court 
 V. Wood County 
 Poweshiek County v. Ross 
 Powles V. Page 
 Prather v. Lexington 
 
 V. New Orleans 
 Pratt V. State 
 
 V. Swanton 304, 
 
 Pray v. Jersey City 
 
 7. Northern Liberties 
 Preachers' Aid Soc. 
 Preble v. Portland 337, 
 
 Prell V. McDonald 50, 147, 149, 
 Presbyterian Church v. Mayor 
 Prescott V. Duquesne 77, 
 
 V. Gonser 
 President v. Desouchett 
 V. Holland 
 V. Indianapolis 
 
 446, 496, 510, 
 V. Myers 
 
 V. O'Malley 333, 
 
 V. Thomson 
 Preston v. Bacon 
 V. Boston 
 V. Nevastota 
 Prettyman 7. Supervisors 90, 
 
 V. TazweU County 
 Price V. Church 
 
 V. Commissioners 
 V. Harned 
 V. Thomson 
 
 491, 507, 510, 512, 
 V. Railroad Co. 
 Priestly V. Foulds 
 
 564 
 114 
 334 
 6321 
 795 
 510 
 67 
 67 
 50 
 510 
 155 
 176 
 533 
 176 
 743 
 353 
 383 
 150 
 636 
 635 
 366 
 751 
 104 
 136 
 338 
 343 
 760 
 71 
 134 
 386 
 789 
 616 
 132 
 476 
 347 
 61 
 664 
 668 
 789 
 344 
 
 513 
 131 
 363 
 110 
 173 
 751 
 503 
 104 
 84 
 515 
 685 
 598 
 
 532 
 330 
 109 
 
 Prigdenv. Bannerman 475 
 
 Primm r. Belleville 
 
 590, 592, 603, 620, 631 
 
 Prindle v. Fletcher 788 
 
 Pritchard v. Keefer 176 
 
 V. People 314 
 
 v. Stevens 101 
 
 Pritz, Ex parte 36 
 
 Proprietors v. Horton 33, 51 
 
 V. Lowell 803 
 
 V. Slack 239 
 
 Protzman v. Railroad Co. 
 
 535, 556, 564, 574 
 Providence v. Clapp 786, 788, 789 
 Pruyn v. Milwaukee 414 
 
 Pulaski Co. v. Lincoln 331, 413 
 
 Pumpelly v. Green Bay Co. 781, 784 
 Purdy V. People 35, 30 
 
 Pursley v. Hays 458 
 
 Putnam v. Johnson 134 
 
 Putuam County v. Allen County 685 
 
 Q. 
 
 Queen v. Bartels 134 
 
 V. Board 785 
 
 V. Charlesworth 546, 555, 568 
 
 V. Gas Company 555, 568 
 
 V. Governors 174, 188 
 V. Halifax Road Trustees 694 
 
 V. Justices 136 
 
 V. Pomfret 190 
 
 V. Saddlers' Co. 193 
 
 Quincy v. Ballance 334, 344 
 
 V. Warfleld 414 
 
 Quinn v. Paterson 537 
 
 R. 
 
 Raab v. Maryland 124 
 
 Rabassa v. Mayor 591, 631 
 
 RadcliflE v. Brooklyn 781, 783 
 
 Radway v. Briggs 77 
 
 Ragan v. McCoy 491, 494 
 
 Ragatz V. Dubuque 476, 483 
 
 Ragnet v. Wade 176 
 
 Railroad Co. v. Adams 555, 563, 570 
 
 V. Alexandria 
 
 54, 605, 612, 616, 639 
 
 V. Applegate 
 
 556, 558, 570, 574 
 
 V. Ball 488 
 
 V. Baltimore 
 
 60, 346, 559, 570 
 
 V. Banker 491 
 
 V. Blanchard 734, 787 
 
 V. Brooklyn 558 
 
46 
 
 TABLE OP CASES CITED. 
 
 Railroad Co. v. 
 
 Brown 
 
 
 558 
 
 V. 
 
 Brownell 
 
 
 518 
 
 T. 
 
 Buclianan 
 
 Countj 
 
 
 
 
 63, 
 
 433 
 
 V. 
 
 Buffalo 
 
 336, 
 
 554 
 
 T. 
 
 Charlestown 
 
 638 
 
 V. 
 
 Chenoa 
 
 51, 538, 
 
 565 
 
 T. 
 
 V. 
 V. 
 
 Chicago 
 
 Claghom 
 
 Cleino 
 
 
 618 
 371 
 788 
 
 V. 
 
 Clute 
 
 
 639 
 
 V. 
 
 CoUett ■ 
 
 
 488 
 
 T. 
 V. 
 
 Commissioners 33, 104 
 
 Connelly 27, 480, 589, 
 
 593, 596, 629, 638 
 
 V 
 V 
 V. 
 
 Dailey 
 Dalby 
 Davidson 
 
 County 
 
 555 
 17 
 33 
 
 V. Davis 4i 
 
 V. Decatur 560, 565 
 
 V. Deitz 573 
 
 V. Doughty 487, 488 
 V. Duquesne 537, 579 
 V. Elevator Co. 496, 534 
 V. Evansville 58, 83,. 84, 
 106, 414, 430, 433 
 
 Railroad Co. v. O'Daily 
 
 525, 564, 570, 574 
 V. Otoe County 105a,106 
 V. Owings 476 
 
 V. Payne 560 
 
 V. Philadelphia 
 
 518, 570, 571 
 V. Platte County 63,423 
 V. Plumas County 
 
 24, 51, 696 
 
 V. Porter 470 
 
 v. Prudden 523 
 
 V. Quigley 766 
 
 V. R.K.CO. 454,558,559, 
 
 570, 572, 573, 574, 578 
 
 V. Reed 558, 562, 564 
 
 Schurmier 70, 497 
 
 Shields 
 
 522, 558, 560, 561 
 
 Smith 480 
 
 Spearman 136, 596, 
 
 616, 639, 634 
 
 State 629, 665, 666, 
 
 667, 673, 746 
 
 V. 
 V. 
 
 V. 
 V. 
 
 V. Galena 537,565 
 
 V. Gladmon 573, 789 
 V. Greely 465 
 
 V. Gregory 28 
 
 V. Hartford 108 
 
 V. Heath 483 
 
 v. Hunter 488 
 
 V. Ingles 176 
 
 V. Kennedv 454 
 
 V. Kerr " 558, 570 
 V. Lafayette 639 
 
 V. Lawrenceburgh 559 
 V. Leavenworth 
 
 518, 558, 559, 570, 574 
 V. Marion County 60,434 
 V. Marvin 368 
 
 V. Mayor 558 
 
 v. Memphis 567,568,570 
 V. Miller 483 
 
 V. Morgan County 
 
 635, 639 
 V. Moye 488 
 
 V. Mt. Pleasant 635, 738 
 V. Municipality 
 
 ,64,555,558 
 V. Napa County 669 
 V. Nesbit 475 
 
 V. Newark 559 
 
 V. New York 
 
 58,61,558,570 
 V. Norwalk 802 
 
 y. Oakes 480 
 
 V. Steiner 555 
 
 V. Supervisors 594 
 
 V. Veeder 408 
 
 V. Wakefield 570 
 
 V. Whipple 740 
 
 v: Winthrop 71,74 
 
 V. Wright 628, 629 
 
 Railway Co. v. Howard 738 
 
 V. Philadelphia 556 
 
 Raleigh v. Dougherty 303 
 
 V. Sorrell 311,823,324 
 
 Ramsey v. Riley 176, 177 
 
 Ramshey, Ex parte 174, 188 
 
 Rand v. Townsend 476 
 
 V. Wilder 304, 306 
 
 Randall v. Railroad Co. 788 
 
 V. Van Vechten 
 
 377, 380, 383, 385, 407, 538 
 Rankin v. Beaird 33 
 
 Ranlett v. Leavenworth 415 
 
 Ransom v. Boal 445, 512 
 
 V. New York 764 
 
 Rappo V. Moore 788, 789, 790 
 
 Rathbuu v. Acker 471, 605, 610, 642 
 Ray V. Lynes 780 
 
 V. Manchester 788 
 
 Raymond v. Lowell 788, 789 
 
 Reading v. Commonwealth 
 
 89, 48, 518, 519, 530, 695 
 
 v. Keppleman 53, 788 
 
 Ready v. Mayor 772 
 
 Rector v. Hart 499 
 
 V. State 363 
 
 Red y. Augusta 228 
 
TABLE OF OASES CITED. 
 
 47 
 
 Reddall v. Bryan 463, 476 
 
 Reddish t. Amelia 18, 79 
 
 Redfield v. Railroad Co. 534 
 
 Reed v. Belfast 763, 786, 789 
 
 V. Northfleld 505, 788, 789 
 
 V. People 389, 390 
 
 V. Toledo 471 
 
 V. Tyler 660 
 
 Rees V. Watertown 693 
 
 Reeside v. Walker 670 
 
 Reeves v. Toronto 778, 801 
 
 V. Treasurer Wood County 
 
 463, 593, 617 
 Regents of University v. Williams 
 
 31,48,109, 163,164,316 
 
 Regina y. Anderson 
 V. Archbishop 
 v. Avery 
 V. Bewdley 
 V. B lizard 
 V. Boucher 
 V. Bradley 
 V. Bristol Dock Co 
 V. Canal Co. 
 V. Chapman 
 V. Chester 
 V. Conyers 
 V. Cottle 
 V. Deighton 
 V. Derby 
 V. Derbyshire 
 V. Dock Co. 
 V. Eye 
 
 V. Gloucester 
 V. Greene 
 V. Grimshaw 
 V. Hammond 
 V. Heath cote 
 V. Hioms 
 V. Hoyle 
 V. Ipswich 
 V. ~ 
 V. 
 V. 
 V. 
 V. 
 V. 
 V. 
 V. 
 V. 
 
 Lane 
 
 Ledyard 
 
 Leeds 
 
 Litchfield 
 
 Lloyd 
 
 Megowan 
 
 Morton 
 
 Newberry 
 
 Oxford 
 V. Paramore 
 V. Pembroke 
 V. Railway Co. 
 V. Registrar Stock Co. 
 V. Ricketts 
 V. Rogers^ '§ 
 
 V. Rowley 
 V. Sheffield Gas Co. 
 
 733 
 695 
 137 
 
 109,116 
 
 733 
 
 16 
 
 137 
 
 666, 696 
 
 668, 694 
 704 
 716 
 699 
 537 
 187 
 185, 678, 716 
 579 
 669 
 
 703, 713 
 163 
 773 
 303 
 137 
 667, 710, 713 
 
 135, 678 
 137 
 133 
 163 
 
 135, 699 
 
 674, 678, 716 
 
 82 
 
 718 
 
 156 
 
 163 
 
 179, 189, 190 
 
 183 
 
 96, 197 
 
 674 
 
 698, 745 
 130 
 
 Regina v. Blatter 
 
 678 
 
 V. Southampton 
 
 705 
 
 V. Stamford 
 
 699 
 
 V. St. Mary's 
 
 698 
 
 V. Sutton 
 
 183 
 
 V. Tart 
 
 137 
 
 V. Telegraph Co. 
 
 523 
 
 V. Tewksbury 
 
 135 
 
 V. Thomas 
 
 203 
 
 V. Train 546, 555, 568 
 
 V. Treasury 
 
 190 
 
 V. Turnpike Boads 
 
 673 
 
 V. Wells 
 
 356 
 
 V. Whipp 
 
 303 
 
 V. Wood 
 
 326 
 
 V. York 
 
 96, 197 
 
 Reichard v. Warren County 
 
 386 
 
 Reifl V. Conner 
 
 338, 249 
 
 Reilly v. Chouquette 
 
 529 
 
 V. Philadelphia 
 
 
 387,400, 401, 
 
 640, 772 
 
 Reiman v. Shepard 
 
 626 
 
 Reinboth v. Pittsburg 
 
 83 
 
 Beitchbaugh v. Railroad Co 
 
 470 
 
 Remington v. Millard 
 
 499, 505 
 
 Remy v. Municipality 
 
 433 
 
 Renthrop v. Bourg 
 
 514 
 
 Reock V. Newark 400 
 
 403, 784 
 
 Requa v. Rochester 505, 579, 
 
 789, 790 
 
 Respublica v. Caldwell 
 
 311 
 
 V. Dallas 
 
 166 
 
 V. Duquet 
 
 338 
 
 V. Sparhawk 
 
 756 
 
 Rex V. Abingdon 
 
 
 674, 699, 700 
 
 704, 723 
 
 V. Amery 109, 
 
 113, 135 
 
 V. Andover 
 
 188, 190 
 
 V. Ashwell 
 
 349, 375 
 
 V. Atkyns 
 
 156, 198 
 
 V. Atwood 
 
 354 
 
 V. Axbridge 
 
 192, 683 
 
 V. Babb 
 
 240, 684 
 
 V. Bailiffs 
 
 63, 669 
 
 V. Bank of England 
 
 668, 683 
 
 V. Bankes 
 
 674 
 
 V. Barber Surgeons 
 
 351 
 
 V. Barker 
 
 186, 663 
 
 V. Barnard 
 
 145 
 
 V. Bedford 
 
 677, 713 
 
 183 
 190 
 137 
 646 
 
 , Benchers of Grey's Inn 667 
 
 V. Bellringer 198, 199 
 
 V. Bond 165 
 
 V. Bower 162, 199 
 
 V. Bridgmaa 340 
 
 V. Bristol 683 
 
 V. Brown 722 
 
 V. BuUer 684 
 
 V, Bumstead 
 
 184, 146 
 
48 
 
 TABLE OF CASES CITED. 
 
 Rex V. Cambridge 
 
 134, 674, 680, 
 V. Campion 
 V. Canal Co. 
 V. Carlisle 
 V. Carmathen 
 V. Carter 
 V. Chalke 178, 179, 
 
 Chester 
 Chitty 
 Clapham 
 Clarke 
 Colchester , 
 Commissioners 
 Company 
 Conyers 
 Cottrell 
 Coventry 
 Croke 
 Cross 
 Cusack 
 Dawes 
 Dean 
 
 Debenham 
 Derby 189, 193, 
 Devonshire 
 Doncaster 157, 
 190, 192, 
 Dublin 
 Durham 
 Earle 
 Bgerly 
 Everett 
 Exeter 
 Peversham 
 Fishermen 
 Fowey 
 Frost 
 Graborian 
 Gloucester 
 Godwin 
 Greene 
 Griffiths 
 Grimes 
 Grosvenor 
 Gwyn 
 Harris 
 Harrison 
 Hastings 
 Head 
 Headley 
 Heath 
 Heaven 
 Hebden 
 Hereford 
 Hertford 
 Hill 
 
 190, 
 
 683, 700, 705 
 
 683 
 
 668, 694 
 
 189, 531, 581, 
 
 193 
 
 198, 199 
 189, 190,191, 
 
 193, 193, 194 
 57, 63, 719 
 
 134, 144 
 239 
 704 
 
 674, 680 
 368, 662, 673 
 354 
 698 
 313 
 188 
 311 
 
 521, 581 
 719 
 
 199, 733 
 153 
 241 
 
 674, 698, 704 
 
 199 
 
 179, 180, 188, 
 
 194, 203, 224 
 698 
 157 
 157 
 521 
 668 
 
 134, 704 
 
 180, 193, 193 
 
 354 
 
 704, 710 
 695 
 198 
 700 
 165 
 684 
 192 
 
 193, 303 
 
 109, 163 
 
 341 
 
 193, 303, 723 
 
 352, 353 
 62, 356, 669 
 211 
 199 
 134 
 179 
 199 
 699, 700, 704 
 310 
 203 
 
 Rex V. Hioms 
 
 
 674 
 
 V. Hodge 
 
 
 722 
 
 V. Hopkins 
 
 
 684 
 
 V. Hughes 
 
 
 163, 165 
 
 V. Hungerford 
 
 
 162 
 
 V. Ingram 
 
 
 
 V. Inhabitants 
 
 
 739 
 
 V. Ipswich 
 
 
 
 190, 192, 193, 239, 683, 702, 708 
 
 V. Jones 
 
 
 581 
 
 V. Kent 
 
 
 109 
 
 vj Kingston 
 
 
 698 
 
 V. Lancashire 
 
 
 694 
 
 V. Lane 
 
 
 163, 190 
 
 V. Langhorne 
 
 
 303 
 
 V. Leake 
 
 
 505 
 
 V. Leeds 
 
 
 137 
 
 V. Leicester 
 
 
 192 
 
 V. Leyland 
 
 163, 
 
 674, 677 
 
 V. Liverpool 179, 
 
 189, 
 
 190, 193, 
 
 193, 202, 
 
 234, 
 
 674, 796 
 
 V. London 
 
 
 8, 190 
 
 V. Lord Gordon 
 
 
 241 
 
 V. Lucas 
 
 
 240, 684 
 
 V. Lyme 
 
 179, 
 
 188, 193 
 
 V. Maidstone 
 
 
 253 
 
 V. Mallett 
 
 
 134 
 
 V. Margate Pier Co 
 
 
 694 
 
 V. Marshall 
 
 
 166 
 
 V. Marten ' 
 
 
 732 
 
 V. May 
 
 
 199, 203 
 
 V. Mayor 
 
 
 
 134, 174, 188, 314 
 
 ,683 
 
 , 713, 745 
 
 V. Miller 
 
 109, 
 
 199, 351 
 
 V. Monday 
 
 134, 
 
 198. 199 
 
 V. Moore 
 
 
 581 
 
 V. Morely 
 
 
 368, 743 
 
 V. Morris 
 
 109, 
 
 198, 199 
 
 V. Mothersell 
 
 
 331, 241 
 
 V. Kewbury 
 
 
 699 
 
 V. Newcastle 
 
 
 240, 684 
 
 V. Nicholson 
 
 
 109, 713 
 
 V. Norwich 
 
 
 
 674, 699, 
 
 703, 
 
 705, 707 
 
 V. Nottingham 
 
 239, 
 
 665, 669 
 
 V. Ogden 
 
 
 732 
 
 V. Osbourne 
 
 
 109 
 
 V. Oxford 
 
 
 
 188,190,303,674,694 
 
 , 699, 700 
 
 V. Oxfordshire 
 
 
 745, 747 
 
 V. Oxon 
 
 
 683 
 
 V. Parker 
 
 
 663 
 
 V. Parry 
 
 
 732 
 
 V. Passmore 
 
 
 
 »109, 110, 113, 
 V. ^teman 
 
 116, 
 
 135, 159 
 
 
 165 
 
 V. Patterson 
 
 163, 
 
 164, 165 
 
 V. Payne 
 
 
 163, 723 
 
TABLE OF CASES CITED. 
 
 49 
 
 V. Phillips 
 
 156 
 
 V. Pigram 
 
 289 
 
 V. Plymouth 
 
 700 
 
 V. Pomfret 
 
 705 
 
 V. Ponsonby 
 
 179, 722 
 
 V. Poole 
 
 159 
 
 V. Powell 
 
 222 
 
 V. Pumell 
 
 240 
 
 V. Quayle 
 
 722 
 
 V. Radford 
 
 674 
 
 V. Railroad Co. 
 
 745, 747 
 
 V. Railway Co. 
 
 666 
 
 V. Richardson 
 
 
 178,179,180,189 
 
 , 190, 192, 193 
 
 V. Ripon 
 
 163 
 
 V. Rogers 
 
 356 
 
 V. Rowe 
 
 192 
 
 V. Salop 
 
 /C9 
 
 V. Salway 
 
 57 
 
 V. Sargeant 
 
 722 
 
 V. Saukey 
 
 437 
 
 V. Saunders 
 
 109, 113, 718 
 
 V. Scarborough 
 
 674 
 
 V. Shelly 
 
 240, 684 
 
 V. Shrewsbury 
 
 192. 202 
 
 V. Slatford 
 
 683 
 
 V. Slythe 
 
 722 
 
 V. Smart 
 
 198 
 
 V. Smith 241, 
 
 699, 700, 703 
 
 V. Spencer 
 
 134, 146 
 
 V. Stewart 
 
 109 
 
 V. St. George 
 
 796 
 
 V. St. Martin 
 
 674 
 
 v. Taylor 179, 
 
 180, 190, 191 
 
 V. Theodorick 
 
 202, 204 
 
 V. Thetford 
 
 241, 674 
 
 V. Thornton 
 
 156 
 
 V. Tidderly 
 
 163, 179 
 
 V. Tizzard 
 
 166 
 
 V. Toneboy 
 
 192 
 
 V. Tooley 
 
 701 
 
 V. Totness 
 
 189 
 
 V. Tower 
 
 684 
 
 V. Tregony 
 
 109, 674, 701 
 
 V. Trelawney 
 
 165 
 
 V. Trevenon 
 
 722 
 
 V. Truro 
 
 189, 674 
 
 V. Varls 
 
 198 
 
 V. Ward 
 
 520, 581 
 
 V. Wardroper 
 
 722 
 
 V. Warlow 
 
 722 
 
 V. Watson 
 
 176 
 
 T. WeUs 
 
 189, 190 
 
 V. West Looe 
 
 189, 703 
 
 V. West Riding 
 
 579 
 
 V. Westwood 
 
 211, 326 
 
 V. Weymouth 
 
 134. 146 
 
 V. Whitwall 
 
 162,' 722 
 
 Rexv. Wigan 
 
 704 
 
 V. Wildman 
 
 339 
 
 V. Williams 210, 668 
 
 , 714, 723 
 
 v. Willis 
 
 698 
 
 V. Wilton 
 
 192 
 
 V. Winchester 137 
 
 674, 678 
 
 V. Woodrow 
 
 162, 674 
 
 V. Tates 
 
 189 
 
 V. York 674, 
 
 676, 705 
 
 V. Yorkshire 
 
 667 
 
 Rexford v. Knight 
 
 479, 480 
 
 Reynolds v. Albany 
 
 92 
 
 V. Baldwin 
 
 
 31, 147, 210, 680, 
 
 
 713, 714 
 
 V. Commissioners 
 
 
 432, 436, 
 
 507, 510 
 
 V. New Salem 
 
 204 
 
 V. Schweinefus 
 
 239 
 
 V. Shreveport 
 
 88, 783 
 
 V. Stark County 
 
 43, 445 
 
 V. Taylor 
 
 668, 685 
 
 Rhines v. Clark 344, 
 
 361, 366 
 
 Rhodes v. Cincinnati 
 
 783 
 
 V. Cleveland 
 
 780 
 
 V. Dunbar 
 
 308 
 
 Rice V. Keokuk 
 
 90 
 
 V. Osgood 
 
 510 
 
 V. Smith 
 
 676, 784 
 
 V. State 
 
 302, 366 
 
 Richards v. Daggett 
 
 128, 129 
 
 V. Enfield 
 
 788 
 
 Richardson v. Baltimore 
 
 476, 728 
 
 V. Boston 
 
 74, 433 
 
 V. Scott 
 
 377 
 
 V. Turnpike Co. 
 
 579, 788 
 
 Richland County v. Lawrence County 
 
 30, 85, 40, 138 
 
 Richmond v. Daniel 
 
 605, 629 
 
 V. Judah 
 
 751 
 
 T. Long 
 
 
 39, 753, 764 
 
 773, 774 
 
 V. Railroad Co. 
 
 
 30, 35, 590, 
 
 616. 629 
 
 V. Smith 
 
 ■ 271 
 
 V. State 
 
 442 
 
 Richmond Mayoralty Case 
 
 38, 357 
 
 Riddle v. Bedford 
 
 154 
 
 V. Proprietor of Locks 
 
 761, 
 
 762, 763 
 
 Rideout v. School District 
 
 304 
 
 Riggs V. Board of Education 
 
 
 508, 537 
 
 V. Johnson County 
 
 
 416, 
 
 686, 688 
 
 Riley v. Rochester 
 
 434, 435 
 
 Rindge v. Colrain 
 
 789 
 
 Ring V. Johnson County 
 
 132, 405 
 
50 
 
 TABLE OF CASES CITED. 
 
 Bing V. Sehoenberger 508, 530 
 
 Eipon V. Bittel 789 
 
 V. School District 751 
 
 Risley v. St. Louis 471, 643, 643, 650 
 
 Road Case 228, 249, 537 
 
 Robbins t. Chicago 793 
 
 V. County Court 414 
 
 V. Railroad Co. 487, 488 
 
 Roberts v.. Carr 501 
 
 V. Chicago 783 
 
 V. Easton 571 
 
 V. Mayor 732 
 
 ■ V. Ogle 263, 308, 335 
 
 Robertson v. Rockford 104 
 
 Robie V. Sedgwick 51 
 
 Robins, Ex parte 666 
 
 Robinson v. Bidwell 104 
 
 V. City Council 751 
 
 T. Lane 114 
 
 V. Mayor 297 
 
 V. Railroad Co. 564 
 
 V. Robinson 488 
 
 V. St. Louis 94, 377 
 
 Rochester v. Collins 780 
 
 V. Hood 319 
 
 V. Lee 118 
 
 V. Pettinger 320 
 
 Rochester White Lead Co. v. 
 
 Rochester 776, 777, 780, 797 
 
 Rofflgnac St., Matter of 473, 474 
 Rogan V. Watertown 
 
 28, 104, 105, 398 
 
 Rogers, Ex parte 199, 221, 224, 695 
 
 v. Burlington 83, 84, 105a, 
 
 106, 393, 407, 416, 4165, 
 
 418, 420 
 
 V. Jones 240, 263, 264, 
 
 302, 323, 354, 418, 420 
 
 V. Lee County 414 
 
 Roll V. Augusta 563, 783, 799 
 
 Roman v. Strauss 523 
 
 Rome V. Cabot 97, 371 
 
 V. Jenkins 479 
 
 V. Omberg 783 
 
 Rome R. R. Co. v. Rome 639 
 
 Romeo v. Chapman 123 
 
 Roosevelt v. Draper 738 
 
 Rose V. Turnpike Co. 109 
 
 Rosebaugh v. Saffln 279 
 
 Ross V. Curtis 433 
 
 V. Madison 238, 374, 797 
 
 V. St. Charles 505, 796 
 
 Rossie V. Boston 433 
 
 Rounds V. Mansfield 101, 176 
 
 V. Mumford 358, 781, 783 
 
 V. Stetson 101 
 
 Rowan v. Portland 503, 532, 529, 531 
 
 Rowe v. Addison 777 
 
 Rowe V. Leeds 784 
 
 RoweU V. LoweU 788, 789 
 
 V. Montville 505 
 T. Williams 789, 791,794,796 
 
 Roxbury V. Railroad Co. 560, 796 
 
 Ruby V. "Abysm. Society 386 
 
 Rudolphe v. New Orleans 775 
 
 Ruggles V. Collier 60 
 
 V. Nantucket 60, 579 
 
 Ruhlman v. Commonwealth 476 
 
 Rum^y V. Campton 134 
 
 Rundle v. Baltimore 743 
 
 Runyon v. Bordine 530, 531 
 
 Buppert V. Baltimore 401 
 
 Rusch T. Davenport 789 
 
 Rush V. Des Moines County 9 
 
 Russ V. Mayor 356 
 
 Russell V. Burlington 783 
 
 V. Chicago 157 
 
 V. Devon County 763, 789 
 V. New York 
 
 757, 759, 760, 772 
 
 V. Steuben 789 
 
 V. The Swift 73 
 Rutherford v. Taylor 
 
 491, 508, 512, 523 
 
 Rutter v. Chapman 16 
 
 Ryan v. Copes 308 
 
 V. County 655 
 
 Ryder v. Railroad Co. 61 
 
 8. 
 
 Sacramento v. OrocJses 599, 633 
 
 V. Kirk 374, 375 
 
 V. 8t«ame5 76 
 
 Sadler v. Evans 174 
 
 Salem v. Railroad Co. 308 
 
 Salem Mill Dam v. Ropes 13 
 
 Salisbury v. Philadelphia 383 
 
 Salter v. Reed 660 
 
 Saltonstall vl Banker 308 
 
 Sampson v. Goochland 579 
 
 V. Justices 605 
 
 Samuels v. Nashville 508 
 
 San Antonio v. Jones 104 
 
 V. Lane 426 
 
 V. Lewis 237, 374, 513 
 
 Sanborn V. Deerfleld 13 
 
 Sanders v. McLin 611 
 
 Sanderson v, Cross 633 
 
 Sanfordv. Augusta 787 
 
 V. Tremlett 132 
 
 San Francisco v. Calderwood 
 
 433, 498 
 V. Hazen 219 
 San Francisco Gas Co. v. San Fran- 
 cisco 382 
 
TABLE OF CASES CITED. 
 
 61 
 
 Sanger v. Commissioners 695 
 
 Sargeant v. Bank 491 
 
 Sargent v. Railroad Co. 573 
 
 Sarnia v. Railway Co. 533 
 
 Sarocco v. G-eary 757 
 
 ■ Sater v. Plank Road Co. ' 488 
 
 Satterlee v. San Francisco 497 
 
 Sauk V. Philadelphia 228 
 
 Saulet V. New Orleans 494, 501, 504 
 
 Saunders v. Haynes 135 
 
 Savacool v. Boughton 176 
 
 Savage v. Bangor 789 
 
 V. Gulliver 739 
 
 Savannah v. Charlton 291 
 
 V. Cullens 780 
 
 V. Hartridge 488. 605, 624 
 
 V. Hussey 303, 361 
 
 V. State 694 
 
 V. Steamboat Co. 
 
 52, 394, 528 
 
 Savings Bank v. Winchester 373 
 
 Sawyer v. Alton 536, 604 
 
 V. Corse 778 
 
 V. Northfleld 748 
 
 V. Williams 129 
 
 Saxton V. Beach 311 
 
 Scadding v. Lorant 314, 335 
 
 Scales V. Chattahoochee County 10 
 
 Scammon v. Chicago 521, 605, 643 
 
 V. Scammon 232 
 
 Scarning v. Conger 375 
 
 SchaSer v. Cadwallader 446, 686 
 
 Schenck v. Peay 331 
 
 V. Supervisors . 424 
 
 Schenley v. Alleghany 
 
 481, 594, 596, 618 
 
 V. Commonwealth 46, 60, 
 
 498, 503, 636, 653 
 
 School V. Canal 109 
 
 School Com. V. Dean 31 
 
 Scjiool Directors v. Anderson 664 
 
 V. Dunkelberger443 
 
 V. Georges 539 
 
 School District v. Atlierton 158, 204, 
 
 206, 233, 236, 237 
 
 V. Blakeslee 
 
 130, 205, 241 
 
 V. Lord 239 
 
 V. Richardson' 139 
 
 V. Tapley 139 
 
 v. Thompson 406 
 
 V. Wood . 13 
 
 Schoonmaker v. Church 501 
 
 Schroder v. City Council 273, 357 
 
 Schurmier v. Railroad Co. 
 
 491, 402, 525 
 Schuyler County v. People 108 
 
 Schwartz v. Flatboats 618 
 
 Scofield V. School District 92, 733 
 
 Scott V. Chicago 579 
 
 V. Des Moines 536 
 
 V. Manchester 777, 778, 781 
 
 Scovil V. Cleveland 
 
 53, 314, 481, 588, 596, 638 
 V. Giddings 784 
 
 Scudder v. Trenton 467 
 
 Seagraves v. Alton 383 
 
 Scale V. Mitchell 357 
 
 Seaman v. New York 77 
 
 Seamen v. Patten 175 
 
 Sears v. Dennis 788 
 
 V. West 391, 633 
 
 Secretary v. McGarrahan 670, 693,713 
 Sedberry v. Commissioners 
 
 665, 708, 710 
 Seebold v. Spitler 435, 512 
 
 Seiple V. Elizabeth City 62, 155 
 
 Selectmen v. Spaulding 633 
 
 Selma v. Mullen 374 
 
 Semmes v. Columbus , 396 
 
 Serrot v. Omaha . 790 
 
 Serrill V. Philadelphia 634 
 
 Severin v. Eddy 793, 795 
 
 Seward v. Milford 789 
 
 Seybert v. Pittsburg 83, 407, 416 
 
 Shackford v. Newing-ton 103 
 
 Shafer v. Mumma 
 
 147, 303, 310. 334, 344, 357 
 Shaflner v. St. Louis 467, 469,470,479 
 Shallcross v. Jeffersonville 80 
 
 Shapleigh v. Pillsbury 510 
 
 Sharon Iron Co. v. Erie 445 
 
 Sharp V. Dunoven 633 
 
 V. Johnson 470, 605, 658 
 
 V. Spier 470, 605, 616, 658 
 
 Sharpless v. Mayor 104, 105, 106, 483 
 Sharrett's Road 537 
 
 Shartle v. Minneapolis 505, 789 
 
 Shattuck V. Woods 173 
 
 Shaver v. Starrett 483 
 
 Shaw V. Charlestown 479 
 
 V. Dennis 104, 588 
 
 V. Kennedy 284 
 
 V. Mayor 174, 740, 741 
 
 V. Pickett 653 
 
 Shawnee Co. v. Carter 387 
 
 Shea V. Lowell 789 
 
 Shearman v. Carr 98, 734 
 
 Sheehan v. Gleason 60 
 
 v. Good Samaritan Hos- 
 pital 616 
 Sheffield v. Watson 176 
 Sherbourne v. Yuba County 775 
 Sheldon v. Kalamazoo 769, 773 
 V. School District 58, 738 
 Shelby County v. Railroad Co. 44, 588 
 
52 
 
 TABLE OF CASES CITED. 
 
 Shelton v. Mobile 319, 320, 354, 358 
 
 Shepherd v. Chelsea 788 
 
 V. Municipality 74 
 
 Shepardson v. Colerain 789 
 
 Shepley v. Fifty Associates 789, 790 
 
 Sherburne v. Fislie 175 
 
 Sherman v. McKeon 496, 534 
 Sherwin v. Bugbee 
 
 51, 57, 204, 205, 206 
 
 Shipley v. Railroad Co. 488 
 
 Shirley v. Lunenburg 866 
 
 Shoal-water v. Armstrong 611 
 Shoemaker v. Commissioners 751 
 
 V. Goshen 424 
 
 Shoolhed v. Charleston 668 
 
 Short V. New Orleans 410 
 
 Shotwell V. Mott 443 
 
 Shrader, Ex parte 95, 303 
 
 Shrewsbury v. Brown 383 
 
 Shreveport v. Walpole 581 
 
 Shriver v. Pittsburgh 636 
 Siebrecht v. New Orleans 
 
 371, 381, 383 
 
 Sights V. Tamalls 609, 669 
 
 Sikes V. Hatfield 169, 379, 386 
 
 V. Ransom 6631 
 
 Sill V. Coming 127, 263, 366 
 
 V. Lansingburg 445, 450 
 
 Silliman v. Wing 751 
 
 Sflverthoru v. Railroad Co. 706 
 
 Summons v. Camden ' 783 
 
 V. Cornell 530 
 
 V. Nahant 129 
 
 V. State 632 
 
 Simonds v. Gardner 642, 643 
 
 V. Mumford 473 
 
 Simpson v. Savage 53 
 
 Sinton t. Ash bury 
 
 43, 44, 519, 538, 596, 668 
 Sixth Ave. R. R. Co. v. Kerr 
 Skeen v. Lynch 
 Skerritt's Case 
 Skinkle v. Covington 
 Skinner v. Bridge Co. 
 Slack V. Railroad Co. 
 Slater v. Wood 
 Slatten v. Railroad Co 
 Slattery, Ex ^rte 
 Slaughter v, 
 
 V. People 
 Slaughter House Cases 
 Slee V. Bloom 
 Sleeper V. BuUen 
 Sloan V. McConahy 
 
 V. State 
 Small V. Danville 
 Smead v. Railroad Co. 
 
 570 
 
 501 
 
 136 
 
 77, 718 
 
 783 
 
 58, 90, 104 
 
 147 
 
 558, 564, 570 
 
 357, 363 
 
 Commonwealth 
 
 291, 591, 594 
 302 
 
 Smelson v. State 751 
 
 Smith, Ex parte 302 
 
 V. Aberdeen 481, 590, 596 
 
 V. Adrian 127 
 
 V. Ancker 163 
 
 V. Appleton 41,114 
 
 V. Barrett 445 
 
 V. Cheshire 57,406 
 
 V. Commonwealth 169 
 
 V. County 170, 235 
 
 V. Cronkhite 153 
 
 V. Darley 202, 224 
 
 V. Dedham 786 
 
 V. Gates 101 
 
 V. Helmer 25 
 
 V. Hueston 507, 510, 522 
 
 V. Huntington 101 
 
 V. Hutchinson 751 
 
 V. Kemochen 54 
 
 V. Kinard 505 
 
 V. Knoxville 253 
 
 V. Law 223,225,407 
 
 V. Lock 503 
 
 V. Madison 55, 291, 309 
 
 V. Marston 591 
 
 V. Mayor 388, 391 
 V. McCarthy 
 
 23, 126, 136, 245, 714 
 V. Metropolitan Gas Co. 546 
 
 V. Milwaukee 401, 800 
 
 V. Morse 41, 44, 60, 61, 86 
 V. Natchez Steamboat Co. 158 
 
 V. New Orleans 406 
 
 v. New York 139, 168, 174 
 V. Railroad Co. 
 V. Redfield 
 V. Sac County 
 V. Sacramento 
 V. San Antonio 
 V. Sheely 
 V. Smith 
 V. St. Joseph 
 V. State 
 
 550 
 
 158, 159 
 
 400,401,738 
 
 443 
 
 30,52 
 
 39, 773 
 
 381 
 
 117 
 
 706 
 
 426 
 
 399 
 
 365 
 
 444 
 
 109, 173, 181 
 
 789 
 
 160, 499, 500, 502, 
 
 520,521,530 
 
 591 
 
 458 
 
 543, 782, 783 
 
 789 
 
 109, 113 
 
 65 
 
 579, 789 
 
 799 
 
 789 
 
 T. Turner 
 
 V. Warden 
 
 V. Washington 
 
 V. Wendell 
 Smith's Case 
 Smoot V. fiart 
 
 V. Wetumpka 
 Snook V. Brantford 
 Snow V. Adams 
 Snyder v. Rockport 74, 564, 781, 783 
 Society V. Commonwealth 189,190,193 
 
 v. New London 
 
 104, 420, 423, 426 
 
 V. Pawlet 22, 51 
 
TABLE OF CASES CITED. 
 
 63 
 
 Society v. Van Dyke 
 
 192 
 
 State V. Board of Education 669 
 
 V. Young 
 
 117 
 
 V. Bonner 
 
 672 
 
 Soper V. Henry County 
 
 10 
 
 V. Bpscawen 
 
 745 
 
 Soulard v. St. Louis 
 
 789 
 
 V. Bradbury 
 
 500, 505 
 
 South Bay & Co. v. Gray 
 
 769 
 
 V. Bradford 
 
 719 
 
 South Ottawa v. Foster 
 
 785 
 
 V. Branin 
 
 54, 611 
 
 South P. R. Co. V. Reed 
 
 192, 557 
 
 V. Brown 
 
 432 
 
 Southgate v. Covington 
 
 633 
 
 V. Bryce 
 
 
 Southworth v. Railroad Co. 
 
 25 
 
 181, 183, 191 
 
 , 192, 193, 716 
 
 Soutter V. Madison 
 
 
 V. Buffalo 
 
 147,340,381 
 
 41, 114, 685, 686, 703 
 
 705, 712 
 
 T. Burbank 
 
 685, 687 
 
 Sower V. Philadelphia 
 
 
 V. Burlington 
 
 176, 747, 787 
 
 244, 473, 476, 478 
 
 V. Burnett 
 
 726 
 
 Spangler v. Jacoby 
 
 229 
 
 V. Campton 
 
 579 
 
 Spaulding v. Lowell 
 
 
 V. Canterbury 
 
 23, 124 
 
 11,13,55,57,58 
 
 314, 381 
 
 V. Carver 
 
 505 
 
 Sparhawk v. Salem 
 
 788, 789 
 
 V. Catlin 
 
 494, 499, 507 
 
 Speaker v. Glass 
 
 184 
 
 V. Chamber of Commerce 
 
 Spear v. Robinson 
 
 185, 216 
 
 
 181, 183, 185 
 
 Specht T. Commonwealth 
 
 330 
 
 V. Charleston 
 
 357,481,713 
 
 V. Detroit 
 
 469, 471 
 
 V. Choate 
 
 716 
 
 Speed V. Crawford 
 
 33 
 
 V. Cincinnati 
 
 24 
 
 Speer v. School Directors 
 
 103 
 
 V. Cincinnati Gas Co. 30, 61, 
 
 Sprague v. Coenen 
 
 658 
 
 248, 520, 529,546, 547, 550, 
 
 V. Worcester 781 
 
 797, 802 
 
 665, 713 
 
 , 719, 723, 725 
 
 Sprawl V. Lawrence 
 
 153 
 
 V. City Clerk 
 
 249 
 
 Spray v. Thompson 
 
 476 
 
 V. City Council 
 
 
 Springfield v. Hampden 
 
 699 
 
 67,591,613 
 
 629,630,631 
 
 V. Harns 
 
 375, 382 
 
 V. Clark 
 
 
 v. Le Claire 791 
 
 ,792,793 
 
 54, 245, 250, 
 
 298, 302, 333 
 
 V. Railroad Co. 
 
 555, 560 
 
 V. Clay County 
 
 686 
 
 Stackpole v. Healy 
 
 544 
 
 V. Clegg 
 
 366 
 
 Stadler v. Detroit 146, 174 
 
 188, 191 
 
 V. Cleveland 
 
 272 
 
 Staniland v. Hopkins 
 
 163. 166 
 
 V. Clerk 
 
 141 
 
 Stafford v. Albany 
 
 475 
 
 V. Clunet 
 
 475 
 
 Stanton v. Camp 
 
 376 
 
 V. Cockrell 144, 
 
 476, 741, 744 
 
 T. Springfield 
 
 786, 789 
 
 V. Conlin 
 
 361 
 
 Starin v. Genoa 104, 106, 108,419,433 
 
 V. Commissioners 
 
 176, 432, 
 
 Starr v. Rochester 
 
 768 
 
 669, 688, 695, 
 
 713, 744, 747 
 
 V. Trustees 
 
 368 
 
 V. Common Council 190, 191 
 
 V. Wilmington 
 
 147 
 
 V. Cornvil 
 
 789 
 
 State V.Addison 
 
 616 
 
 V. County Auditor 
 
 686 
 
 V. Allen 
 
 163, 167 
 
 V. County Judge 
 
 28, 676, 
 
 V. Ams 
 
 330 
 
 685, 686, 695, 
 
 699, 708, 713 
 
 V. Ancker 
 
 163 
 
 V. Cowen 
 
 303, 330, 334 
 
 T. Armstrong 
 
 20 
 
 V. Orummey 
 
 303 
 
 V.Atkinson 436,508,520 
 
 V. Curran 
 
 23 
 
 V. Atlantic City 
 
 596 
 
 V. Custer 
 
 664, 666 
 
 V. Auditor 
 
 668, 680 
 
 V. Davenport 
 
 685, 686, 687 
 
 V.Bailey 663,676,694 
 
 695, 699 
 
 V. DawliTig 
 
 639 
 
 V. Barksdale 
 
 746 
 
 v. Dawson 
 
 457 
 
 V. Barlow 
 
 388, 669 
 
 V. Dean 
 
 596 
 
 V. Beloit 
 
 446, 685 
 
 V. Delesdenier 
 
 14 
 
 V. Bergen 
 
 V. Bill 739, 740, 
 
 246, 596 
 
 V. Deliesseline 
 
 
 741, 743 
 
 144, 199, 
 
 220, 680, 714 
 
 V. Binder 23, 
 
 215, 251 
 
 V. Dews 
 
 34 
 
 V. Blanchard 
 
 134 
 
 V. Digby 
 
 488 
 
 V, Board 
 
 694 
 
 V. Directors 
 
 392 
 
54 
 
 TABLE OF CASES CITBB. 
 
 State V. 
 
 V. 
 V. 
 V. 
 V. 
 V. 
 V, 
 V. 
 V. 
 V. 
 V. 
 V. 
 V. 
 V. 
 V. 
 V. 
 V. 
 V. 
 V. 
 T. 
 V. 
 
 V. 
 V. 
 V. 
 V. 
 V. 
 V. 
 V. 
 T. 
 V. 
 V. 
 V. 
 V. 
 V. 
 V. 
 V. 
 
 V. 
 V. 
 V. 
 V. 
 V. 
 V. 
 V. 
 T. 
 V. 
 V. 
 V. 
 V. 
 V. 
 V. 
 V. 
 V. 
 V. 
 V. 
 V. 
 
 Donahay 204, 741 
 
 Douglass 716 
 
 Dousman 34 
 
 Bowling 740 
 
 Dubuclet 671 
 
 Dunn 680 
 
 Dnnnington 176 
 
 Eastabrooke 397 
 
 Elizabeth 635, 642, 643 
 
 Elkinton 703, 704, 707, 712 
 Elwood 699 
 
 Fairchild 697 
 
 Fenley 406 
 
 Ferguson 162, 165, 250, 298 
 Findley 153 
 
 Fitzgerald 139, 141, 142, 368 
 Flanders 36 
 
 Fond du Lac 685 
 
 Foster 228 
 
 Freeholders 673 
 
 Freeman 
 
 250, 253, 298, 309, 333 
 Fnllerton 591 
 
 Funk 141, 142, 368 
 
 Garlock 297 
 
 Gastinel 135 
 
 Gates 703, 712 
 
 Georgia 178 
 
 Georgia Medical Soc. 178, 181 
 Giles 135 
 
 Gilmanton 124 
 
 Glasgow 176 
 
 Glennon 11 
 
 Gorham 579, 747 
 
 Governor 141, 671 
 
 Graham • 671 
 
 Graves 
 
 61, 249, 473, 474, 482, 694 
 Great Works Milling Co. 747 
 
 Gregg 
 
 Gummersall 
 
 Gutterrez 
 
 Hamilton 
 
 Hand 
 
 Halen 
 
 Halifax 
 
 Harper 
 
 Harris 
 
 Haskell 
 
 505 
 726 
 
 Hay 
 
 Helfrid 
 
 Herod 
 
 Hill 
 
 Hoboken 
 
 Hoyt 
 
 Hudson 
 
 737 
 639 
 694 
 604 
 176 
 297 
 372 
 699 
 309 
 357 
 292, 570, 571, 628 
 491 
 291 
 166, 238 
 365, 471, 596, 639, 
 
 642, 647, 740, 741, 746, 748 
 
 State V. 
 
 Hug 
 
 
 473, 
 
 479, 
 
 686 
 
 V. 
 
 Huggins 
 
 
 
 
 144 
 
 V. 
 
 Hull 
 
 
 
 
 309 
 
 V. 
 
 Hundehausen 
 
 
 
 30 
 
 V. 
 
 Jackson 
 
 
 
 
 358 
 
 V. 
 
 Jacobs 
 
 
 129 
 
 160 
 
 374 
 
 V. 
 
 Jersey City 
 
 54, 60, 67 
 
 ,70, 
 
 
 74, 134, 
 
 180, 
 
 181, 
 
 183, 
 
 184, 
 
 
 185, 186, 
 
 193, 
 
 207, 
 
 309, 
 
 321, 
 
 
 233, 325, 
 
 238, 
 
 234, 
 
 344, 
 
 245, 
 
 % 
 
 346, 365, 
 
 308, 
 
 469, 
 
 471, 
 
 483, 
 
 
 505, 537, 
 
 565, 
 
 570, 
 
 605, 
 
 619, 
 
 
 643, 643, 
 
 644 
 
 647, 
 
 737. 
 
 
 V. 
 
 Johnson 
 
 36 
 
 140 
 
 368 
 
 505 
 
 V. 
 
 Jones 535, 
 
 698, 
 
 699, 
 
 706, 
 
 707 
 
 T. 
 
 Judge 
 
 
 
 676, 
 
 713 
 
 V. 
 
 Justices 
 
 
 
 
 176 
 
 V. 
 
 Eeokuk 
 
 
 473, 
 
 479, 
 
 668 
 
 V. 
 
 Kirkley 
 
 
 
 
 
 
 246, 373, 
 
 663 
 
 665 
 
 766, 
 
 768 
 
 Eispert 711 
 
 Hine 136 
 
 Lafferty 149, 347 
 
 Laverack 316, 531 
 
 LeflSngwell ' 599, 699 
 
 Lean 697 
 
 Ledford 303 
 
 Dehre 696, 718 
 
 Leovy 34 
 
 Lieber 313 
 
 Lingo 181, 183, 185 
 
 Loomis 676 
 
 Lyons 731 
 
 Madison 83, 405, 433, 433 
 Marble 494 
 
 Marlow 141, 144, 368, 715 
 Marston 676, 716 
 
 Mayberry 176 
 
 Maynard 147, 357 
 
 Mayor 33, 30, 84, 
 
 50, 52, 55, 86, 176, 756, 789 
 McArthur 366 
 
 McCrillus 667 
 
 McDowell 310 
 
 McGarry 183 
 
 MerriU 329, 332 
 
 Merry 53 
 
 Miller 54 
 
 Milwaukee 41, 446, 
 
 685, 686, 688, 698, 699, 704 
 Milwaukee Gas, &c. Co. 
 
 30, 548 
 Mitchell 667, 668 
 
 Mobile 52 
 
 316, 508, 520, 521, 535, 538 
 Moffitt 670 
 
 Morris Common Pleas 23 
 Morristown 54, 250 
 
TABLE OF OASES OITED. 
 
 65 
 
 State V. Moss 
 
 
 863 
 
 State V. Supervisors 
 
 678, 710 
 
 V. Moultrie ville 
 
 
 376, 378 
 
 T. Swearingen 
 
 59, 134, 135 
 
 V. Mount 
 
 
 685 
 
 V. Swift 
 
 476, 740, 741 
 
 V. Newark 
 
 
 46, 309, 
 
 V. Tappan 
 
 44, 587 
 
 265, 599, 616, 
 
 642 
 
 , 737, 740 
 
 V. Tolan 
 
 763 
 
 V. New Boston 
 
 
 505 
 
 V. Toomer 
 
 158 
 
 V. New Brunswici 
 
 
 
 V. Town Council 
 
 613, 616, 730 
 
 60, 
 
 537 
 
 596, 619 
 
 V. Township 
 
 176 
 
 V. New Orleans 
 
 
 399 
 
 V. Trask 
 
 507 
 
 V. North 
 
 
 591 
 
 V. Trustees 
 
 14, 109, 
 
 V. Norwood 
 
 
 155 
 
 113, 114, 181, 
 
 188, 191, 435 
 
 V. Noyes 
 
 
 9,33 
 
 V. Tupper 
 
 565 
 
 V. Orange 
 
 
 689 
 
 V. Turnpike Co. 
 
 718, 733 
 
 V. Passaic County 
 
 
 537 
 
 V. University 
 
 488 
 
 V. Paterson 
 
 
 60, 345 
 
 V. Van Home 
 
 435 
 
 V. Pender 
 
 
 357 
 
 V. Van Winkle 
 
 341 
 
 V. Perkins 
 
 
 154, 357 
 
 V. Volkman 
 
 594 
 
 V. Perth Amboy 
 
 
 643 
 
 V. Wakely 
 
 475, 476 
 
 V. Pettis 
 
 
 529, 531 
 
 V. Wapello County 90,' 104 
 
 v. Pinckney 
 
 
 591 
 
 V. Warmouth 
 
 671 
 
 V. Pitot 
 
 
 684 
 
 V. Warren, &c. Co 
 
 667 
 
 V. Plunkett 
 
 
 297, 303 
 
 V. Water Commissioners 
 
 V. Police Jury 
 
 
 673 
 
 
 740, 741 
 
 V. Pollard 
 
 
 303 
 
 V. Weatherly 
 
 718 
 
 V. Portage 
 
 
 
 V. Welch 253, 
 
 268, 880, 333 
 
 481, 594, 
 
 596, 
 
 617, 688 
 
 V. Whittingham 
 
 747 
 
 V. Porter 
 
 
 163 
 
 V. Wilkesville 
 
 280 
 
 T. Putnam County 
 
 
 686 
 
 V. Wilkinson 499, 
 
 501, 507, 530 
 
 V. Eahway 
 
 143 
 
 695, 696 
 
 v. Williams 
 
 304 
 
 V. Eailroad Co. 
 
 
 32, 
 
 V. Wilmington 
 
 
 386, 449, 530, 
 
 531, 
 
 695, 746 
 
 143, 
 
 146, 315, 357 
 
 V. Ramos 
 
 
 183, 680 
 
 V.Wilson 500, 
 
 505, 511, 68G 
 
 V. Raymond 
 
 
 745 
 
 V. Winkelmeier 
 
 33 
 
 V. Richland 
 
 
 103 
 
 V. Wood County 
 
 665 
 
 V. Richmond 
 
 
 505 
 
 V. Woodward 
 
 433, 
 
 V. Ricker 
 
 
 366 
 
 436, 445, 498, 
 
 499, 508, 530 
 
 V. Riordan 
 
 
 34 
 
 V. Wrotnowski 
 
 671 
 
 V. Roberts 
 
 
 391, 606 
 
 V. Young 
 
 18, 357, 366 
 
 V. Robinson 
 
 
 669 
 
 V. Zanesville, &c. 
 
 Co. 695 
 
 V. Rush 
 
 
 176 
 
 State Bank v. Brackenridge 483, 629 
 
 V. Saline County 
 
 
 423, 7805 
 
 V. Knoop • 
 
 30 
 
 V. Schnierie 
 
 144 
 
 696, 730 
 
 V. Madison 
 
 613, 638 
 
 V. Schlier 
 
 
 633 
 
 V. Navigation Co. 81 
 
 V. School Dist. 
 
 
 718 
 
 State Tax, Case of 
 
 591 
 
 V. Scott 
 
 
 33, 732 
 
 St. Charles v. Powell 
 
 539 
 
 r. Sellers 
 
 
 176 
 
 V. Rogers 
 
 740 
 
 Y. Severance 
 
 
 853 
 
 Steam Navigation Co. v 
 
 . Dandridge 
 
 V. Shelbyville 
 
 
 176, 747 
 
 
 372, 383 
 
 V. Sherman 
 
 
 297 
 
 Steamship Co. v. Joliffe 
 
 67 
 
 Y. Sherwood 
 
 
 174 
 
 v. Port Wardens 67 
 
 V. Shields 
 
 
 176 
 
 Stebbins v. Jennings 
 
 32 
 
 V. Smith 
 
 
 185 
 
 V. Merritt 
 
 180, 331 
 
 v. Southern Steamship 
 
 Co. 655 
 
 Steckert v. East Saginaw 229, 330, 
 
 V. Springfield 
 
 
 47 
 
 348, 
 
 610, 636, 738 
 
 V. Steams 
 
 
 345, 858 
 
 3teel v. Davis County 
 
 410, 413 
 
 V. Stewart 
 
 176, 
 
 740, 741 
 
 Steele v. Buckhardt 
 
 789 
 
 V. St. Louis Co. Court 
 
 
 V. Martin 
 
 189, 715 
 
 3( 
 
 ), 34 
 
 , 93.-763 
 
 Stein V. Burden 
 
 97 
 
66 
 
 TABLE OF CASES CITED. 
 
 Stein V. Mayor 104, 638 
 
 Steines v. Franklin County 63, 416, 
 
 418, 434, 426, 753 
 
 Stephani v. Brown 795 
 
 Sterrett v. Houston 777 
 
 Stetson V. Faxon 74, 531 
 
 V. Kempton 13, 55, 92, 103, 
 
 379, 381, 751 
 
 Stevens' Case 707 
 
 Stevens v. Chicago 355 
 
 V. Society 204, 237 
 
 Stewart v. Baltimore 478,474,479,482 
 
 V. Board 471 
 
 V. Commonwealth 338 
 
 V. Mayor 367 
 
 V. New Orleans 773, 775 
 
 V. Polk County 104 
 
 V. Southard 176, 177 
 
 V. State 158, 159 
 
 Stickney v. Maidstone 788 
 
 V. Salem 762, 786 
 
 Stilk V. Myrick 91 
 
 Stillham v. laham 65 
 
 Stillwater v. Green 139 
 
 Stinson v. Gardiner 786, 788 
 
 Stites V. Curtis 496, 524 
 
 St. John V. East St. Louis 603 
 
 V. New York 813, 816, 581 
 
 St. Joseph V. Anthony 650 
 
 V. Hamilton 473 
 
 V. O'Donoghue 596 
 
 V. Railroad Co. 626, 628 
 
 V. Rogers 23, 105as, 106 
 
 416c, 418, 434 
 
 V. Sayville 626 
 
 St. Louis V. Alexander 23,53,106,433 
 
 V. Allen 
 
 15, 38, 126, 634, 636, 657 
 V. Benton ' 253 
 
 V. Bentz 303 
 
 V. Boatmen's Ins. Co. 609 
 V. Boffinger 245, 805 
 
 V. CaflEerata 253, 303, 330 
 T. Clements 60, 596, 638, 
 639, 648, 650, 653 
 V. Coons 651 
 
 V. De None 650, 653 
 
 V. Eters 60 
 
 V. Ferry Co. 625, 637 
 
 V. Grove 293 
 
 V. Gurno 543, 787 
 
 V. Insurance Co. 616, 629 
 v. Jackson 318, 319 
 
 V. McCoy 305 
 
 V. McLaughlin 605, 633 
 
 V. Merton 449 
 
 V. Newman 539 
 
 V. Russell 15,38,136,634,636 
 
 St. Louis V. Shields 84, 41, 74 
 
 V. Smith 399 
 
 V. Weber 255, 261, 313, 319 
 V. Wiggins Ferry Co. 
 
 626, 627 
 St. Louis County Courts v. Sparks 
 
 680 
 
 St. Louis Gas Co. v. St. Louis 136 
 St. Louis Hospital v. Williams 121 
 Stj. Louis Public School? v. St. Louis 
 
 616 
 
 St. Luke's Church v. Slack 665 
 
 St. Paul V. Coulter 28, 245, 260, 261, 
 263, 318, 819 
 V. Kirby 789 
 
 V. Laidler 319 
 
 V. Marvin 740 
 
 V. Seitz 789, 791 
 
 V. Troyer 399 
 
 Stock V. State 176 
 
 Stockbridge v. West Stockbridge 51 
 Stocking V. State 161 
 
 Stoddard v. Gilman 338, 349 
 
 Stokes V. New York 
 
 377, 828, 334, 346 
 Stone V. Boston 476 
 
 V. Brooks 493, 503 
 
 V. Cambridge 473 
 
 V. Huggins 176 
 
 V. Mayor 740, 743, 757, 759 
 V. School District 304 
 
 Stonebnrgh v. Brighton 876 
 
 Storm V. Odell 743 
 
 Stormfeltz v. Turnpike Co. 518, 519 
 Storrs V. Utica 401 
 
 Stotesbury v. Smith 91 
 
 Stow V. Wise 334 
 
 Strahl, Ex parte 
 
 142, 144, 147, 210, 314, 368 
 
 Stratman, Ex parte 357 
 
 Stratton v. Allen 81, 83 
 
 V. Oulton 174 
 
 Strauss v. Insurance Co. 371, 407 
 
 V. Pontiac 345, 289, 299 
 
 Street v. County Commissioners 683 
 
 V. Francis 739 
 
 V. Holyoke 789 
 
 Street Case 325, 468, 469, 599, 639 
 
 Street R. R. Co. v. City R. Co. 558 
 
 V. Cumminsville 
 
 564, 570, 578, 574 
 V. Smith 572 
 
 Street Railroad Co.'s Appeal 573, 574, 
 596, 599, 638 
 Strieker v. Kelly 139, 338, 265, 470 
 Strickland v. Railroad Co. 104 
 
 Strong V. Darling 126, 491 
 
 Strong's Case 665, 668, 676, 681 
 
TABLE OF CASES CITED. 
 
 57 
 
 Stroud V. Philadelphia 
 
 481, 596, 644. 647 
 
 Stuber's Road 518, 527 
 
 Sturtevant v. Alton 133, 371, 372 
 
 V. Liberty 406 
 
 Stuyvesant v. New York 61, 253 
 
 V. "Woodruflf 499 
 
 Sumner v. First Parish 751 
 
 Simbury, &c. R. R. Co. v. Cooper 248 
 
 Sun Ins. Co. v. Mayor 588, 596 
 
 Supervisors v. Bates 373 
 
 V. Bowen 398 
 
 V. Briggs 751 
 
 V. Coffinbury 155 
 
 V. Durant 
 
 688, 693, 699, 711 
 V. Gorrell 744 
 
 V. Manny 751 
 
 V. Patterson 445 
 
 V. People 
 V. Rogers 693 
 
 V. Schenck 387, 418, 424 
 V. Stimpson 176 
 
 V. United States 
 
 669, 686, 688, 689 
 
 V. Welcher 246, 603 
 
 Surgi v. Snetchman 617 
 
 Sussex V. Strader j 579 
 
 Sutton V. Board of Police 774, 785 
 
 V. Cole 211, 443 
 
 V. Louisville 448 
 
 Sutton's Hospital Case 258 
 
 Suydam v. Keys 176 
 
 Swails T. State . 50 
 
 Swain v. Comstock 51 
 
 Swan V. Williams 467, 471 
 
 8-wann v. Buck 168 
 
 V. Cumberland 476, 638, 740 
 
 Swartz V. Flatboats 69 
 
 V. Page 450, 514 
 
 Sweet V. Carver County 409 
 
 Sweetzer v. Hay 155 
 
 V. Mead 376 
 
 Swift V. Newport 633 
 
 V. Williamsburg 372, 401, 768 
 
 Symmers v. Regem 188, 194 
 
 T. 
 
 Tackaberry v. Keokuk 613 
 
 Taft V. Montague 386 
 v. Pittsford 372, 403, 406 
 
 Tailors of Ipswich 109, 358 
 
 Tainter v. Mayor 728 
 
 Talbot V. Dent 33, 104 
 
 v. Hudson 463, 465 
 
 V. Whipple 
 
 797 
 
 Talbott V. fjrace 73, 600 
 
 Talcott V. Pine Grove 415 
 
 Tallahasse v. Fortune 789, 790 
 
 Tallman v. Janesville 595 
 
 Tanner v. Albion 309 
 
 Tarlton, Ex parte 476, 740 
 
 Tarver v. Commissioners 706 
 
 Tash V. Adams 10, 13, 732 
 
 Tate V. Railroad Co. 527, 555, 557 
 
 Tatem v. Wright 591 
 
 Taylor v. Americus 368, 740 
 
 V. Board of Health 751 
 
 V. Boulware 136 
 
 V. Carondelet 
 
 345, 379, 386, 449 
 V. Donner 605 
 
 V.Gloucester 191,193 
 
 V. Griswold 350,353, 258, 359 
 V. Henry 
 
 207, 333, 335, 237, 289, 241 
 V. Newberne 23, 104, 106 
 
 V. Palmer 
 
 209, 265, 599, 616, 653 
 
 V. Plymouth 756, 757, 759 
 
 V. Porter 458,465 
 
 V. School Commissioners 668 
 
 V. St. Louis 543, 783 
 
 V. Strong 149 
 
 Taylor's Case 163 
 
 Teagarden v. McBean 505 
 
 Teft V. Size 355 
 
 Templin v. Iowa City 800 
 
 Ten Eyck v. Canal Co. 31 
 
 Tenney v. Lenz 392, 394 
 
 v. Lumber Co. 130 
 
 Terre Haute v. Turner 538, 544, 610 
 
 Terrett v. Sharoa 732 
 
 V. Taylor 40, 431 
 
 Terry v. Bank 41 
 
 V. New York 779 
 
 Tesh V. Commonwealth 357 
 
 Thayer v. Boston 
 
 74, 500, 563, 766, 769, 770, 797 
 
 Theological Son. v. Childs 486 
 
 Thetford's Case 355 
 
 Thicknesse v. Canal Co. 109 
 
 Thillate v. Stanley 458 
 
 Thomas v. Ashland 20, 24, 93,149,366 
 
 V. Commissioners 36 
 
 V. Dakin 33 
 
 V. Leland 43, 44 
 
 V. Mt. Vernon 399, 354, 360 
 
 V. Richmond 55, 83, 251, 
 
 363, 873, 881, 384, 406, 411 
 
 V. White 155 
 
 Thomson v. Carroll 351, 630 
 
 V. Floyd 590 
 
58 
 
 TABLE OF CASES CITED. 
 
 Thomson V. Lee County 55, 104, 106, 
 114, 405, 416, 416J 
 
 V. Mayor 
 
 V. Mount Vernon 
 
 V. Nicholson 
 
 v. Pacific R. R. Co, 
 
 V. People 
 
 72, 74 
 263 
 154 
 18, 591 
 726 
 V. Pittston 103, 1056 
 
 V. Schermerhorn 55, 60,469 
 V. Stickney 176, 177 
 
 Thomdike v. Boston 134 
 
 Thornton v. Smith 366 
 
 Thurlow V. Bogart 523 
 
 Thurston v. Hancock 784 
 
 Tiemey v. Dodge 
 
 34, 54, 357, 361, 363, 368 
 Tileson v. Newman 137 
 
 Tillman v. People 495, 505 
 
 Tilmes v. Marsh 534 
 
 Tines v. State 366 
 
 Tinkham v. Tapscott 333 
 
 Tinsman v. Railroad Co. 80 
 
 Tisdale v. Minnock 351 
 
 Tobacco Co. v.. Woodroffe 353 
 
 Tobey v. Wareham 204 
 
 Todd V. Birdsall 176 
 
 V. Railroad Co. 498, 510 
 
 Tolland V. Willington 579 
 
 Toll Bridge Co. v. Railroad Co. 454 
 Toll Co. V. Betsworth 176 
 
 Tolman v. Marlborough 770 
 
 Tomlinson t. Branch 616 
 
 Tompert v. Lithgow 143, 183,191,198 
 Topping V. Gray 210 
 
 Topsham v. Rogers 885 
 
 Torbush v. Norwich 774 
 
 Toronto v. Bowes 871, 780 
 
 Torry v. Milbury 13, 206 
 
 Tottendellv. Clazby 849 
 
 Touchard v. Touchard 39 
 
 Tounier v. Municipality 400 
 
 Towles V. Justices 579 
 
 Towle V. State 671 
 
 Town Council v. Burnett 751 
 
 V. Court 208 
 
 V. Harbers 297 
 
 v. Lithgoe 499,503,505 
 Towns V. Tallahasse 295 
 
 Townsend v. Hoyle 382, 466, 586 
 Township v. Carey 176 
 
 V. Linn 176 
 
 Township Trustees v. State 667 
 
 Tracy v. Swartout 176 
 
 Trafton v. Alfoid 175 
 
 Treadwell v. Commissioners 
 
 10, 419, 420, 425, 763 
 
 V. New York 780 
 
 Treat v. Middleton 665, 673 
 
 Trenton Railroad Case 
 Trigg V. Glasgow 
 Trigally v. Memphis 
 Tripp V. Lyman 
 Trippe v. Frazier 
 
 518, 527 
 
 625 
 
 245, 372, 366 
 
 789 
 
 440 
 
 Trombley v. Humphrey 463 
 
 Trott V. "Warren 385 
 
 Trowbridge v. Mayor 74 
 
 Troy V. Railroad Co. _ 579 
 
 Truchelut v. City Council 
 
 « 46, 267, 352, 366 
 
 True V. Melvin 694 
 
 Trustees v. Aberdeen 35, 43, 47 
 
 V. Bradbury 47 
 
 V. Cherry 23, 373, 381, 413 
 
 V. Chicago 468 
 
 V. Davenport 476 
 
 T. Erie 52, 349, 369 
 
 V. Hill 159, 160, 214 
 
 V. Keeting 397 
 
 V. King 437 
 
 V. Leffler 346 
 
 V. McConnel 55, 616, 639 
 
 V. Osborne 338, 605 
 
 V. Parks 31 
 
 V. Peaslee 117, 123, 443 
 
 V. Reneau 133 
 
 v. Tatman 30, 31 
 
 V. Winston 48 
 
 Tucker v. Aikin 176, 306 
 
 V. Justices 176, 328 
 
 V. Rochester 770 
 
 V. Shorter 176 
 
 V. Virginia City 95, 305 
 
 Tufts V. Charlestown 642 
 
 Tuley V. State 158, 159 
 
 Turner, Ex parte 663, 669 
 
 V. Brantford 785 
 
 V. Dartmouth 799 
 
 Turney v. Chamberlain 433, 583 
 
 Turnpike Co. v. Berry 579 
 
 V. McKean 241 
 
 V. Railroad Co. 519 
 
 Turpen County Commissioners 168 
 
 Tuttle V. Holyoke 788 
 
 V. State 338 
 
 Tyson v. School Directors 1056 
 
 U 
 
 TJdall V. Trustees 124 
 
 Underbill v. Manchester 760 
 
 V. Smith 658 
 
 V. Trustees 405 
 
 Underwood v. Carney 585 
 
 V. Green 308 
 
 V. Stuyvesant 503 
 
 Union v. Crawford _. 763 
 
TABLE OF OASES CITED. 
 
 69 
 
 Union Pacific R. R. Co. v. Davis 
 
 County 696 
 
 Union Pacific R. R. Co. v. Lin- 
 coln County 591 
 Union R. Co. v. Cambridge 337 
 Uniontown r. Commonwealth 673 
 United States v. Addison 174, 683 
 V. Baltimore, &c. 
 R. R. Co. 30, 39, 43, 
 44, 64, 615, 615a 
 V. Bank 409 
 V. Barker 176 
 V. Boice 176 
 V. Bradley 153, 154 
 V. Bridge Co. 460 
 V. Brown 169 
 V. Chicago 462, 491, 
 498, 503, 504 
 V. Dandridge 154 
 v. Duluth 67 
 V. Fanning 80 
 V. Eillebrown 337 
 V. Guthrie 670 
 v. Hart 531 
 V. Holly 303 
 V. Hoar 539 
 V. Hudson 184 
 V. Keokuk 686, 693 
 V. Kirkpatrick 529 
 V. Land Commissioner 
 670 
 V. Le Baron 153 
 V. Linn 153 
 V. Prescott 176 
 V. Seaman 670 
 V. Tingey 153 
 V. Wright 162, 165 
 University v. Maultsby 34 
 V. Walden 170 
 V. Winston 34 
 Updegra£E v. Crans 210 
 Updyke v. Campbell 309 
 Upton V. Railroad Co. 487 
 V. Starr 176 
 Urmey v. Wooden 442 
 Utica Ins. Co. v. Scott 725 
 
 V. 
 
 Valpey v. Manley 751 
 
 Vanblaricum v. State 488 
 
 Vance v. Bank 18, 50 
 Vanderbilt v. Adams 93, 94, 326, 338 
 
 Vandersmith's Case 583 
 
 Vandever v. Mattock 150 
 
 Vandine, Petitioner 261, 303 
 
 Vandyke v. Cincinnati 307, 79" 
 
 Van Eppes v. Commissioners 762 
 Van Hoflfman v. Quincy 41, 114, 
 
 416, 436,608, 685, 686, 688 
 Van Hostrup v. Madison City 
 
 58, 416, 420, 433 
 Van Keuren v. Johnson 176 
 
 Van Ness v. Washington 512 
 
 Van Orsdall v. Hazard 134, 163 
 
 Vanover v. Davis 92 
 
 V. Justices 737 
 
 Vansant v. Roberts 133 
 
 Van Sicklen v. Burlington 13, 94 
 Van Swartow v. Commonwealth 
 
 357, 361, 366 
 Van Valkenburgh v. Milwaukee 504 
 Van Wickle v. Railroad Co. 469 
 
 Van Wormer v. Mayor 305 
 
 Varick V. New York 727, 728 
 
 v. Smith 458, 463; 465 
 
 Vamer v. Nobleborough 410 
 
 Vason V. Augusta 62, 146, 303, 361 
 Vassault v. Austin 357 
 
 Veazie v. China 108 
 
 V. Mayo 560 
 
 V. Railroad Co. 555 
 
 Veeder v. Lima 106, 423, 434, 435 
 Vernon Soc. v. Hills 159 
 
 Verrior v. Sandwich 164 
 
 Viok V. Vicksburg 494 
 
 Vidal V. Girard 438 
 
 V. Mayor 437, 443 
 
 Vinal V. Dorchester 796 
 
 Vincennes v. Richards 783 
 
 Vincennes University v. Indiana 
 
 18, 109, 110, 113 
 Vincent v. Nantucket 13, 55, 99, 381 
 Vintners v. Passey 
 
 145; 163, 361, 349, 353 
 Vionet v. Municipality 305 
 
 Virginia City v. Mining Co. 24, 57 
 Visitors v. State 34 
 
 Von Phul V. Hammer 34, 26 
 
 W. 
 
 Waco V. Powell 335 
 
 Waddell v. New York 783 
 
 Waddington v. St. Louis 67 
 
 Wade V. Richmond 136 
 
 Wadleigh v. Gillman 93, 94, 250, 338 
 
 V. Sutton 386 
 
 Wager v. Troy R. R. Co. 
 
 496, 534, 556, 557, 573, 574 
 Walcot V. People 632 
 
 Walcott T. Laurence County 750 
 
 V. Swampscott 772, 777 
 Waldo V. Wallace 147, 357 
 
60 
 
 TABLE OF CASES CITED. 
 
 Waldrayen v. Memphis 
 Waldronv. Berry 
 
 V. Lee 
 Wales V. Muscatine 
 Walker v. Cincinnati 
 V. City Council 
 V. Hallock 
 V. Railroad Co. 
 V. St. Louis 
 v. Swartout 
 Walkley v. Muscatine 
 
 664, 685, 687, 688 
 
 Wallace v. Mayor 90 
 
 v. San Jose 55, 87, 373 
 
 V. Shelton 481, 594, 600 
 
 Walling v. Bunkirk 771 
 
 V. Mayor 474, 778- 
 
 V. Shreveport 768, 769 
 
 Walsh V. Matthews 599 
 
 V. People 747 
 
 Waltham v. Kemper 785 
 
 Wammacks v. HoUoway 
 
 139, 141, 368 
 
 Wanstead v. Hill 308 
 
 Wapello County Case 587 
 
 Ward V. Bartholomew ' 451 
 
 V. Hartford County 65, 762 
 
 V. Jefferson 788 
 
 V. Maryland 591, 609 
 
 V. Morris 591 
 
 T. State 591 
 
 V. Turnpike Co. 761 
 
 Waring v. Mobile 137 
 
 Warner v. Mower 335 
 
 V. Myers 716 
 
 V. People 168, 170 
 
 Warnock v. Lafayette 218 
 
 Warren v. Charlestown 
 
 11, 23, 126, 127 
 
 V. Henly 587, 
 
 588, 596, 597, 635, 783 
 
 V. Lyons City 513, 
 
 513, 514, 515, 518, 527 
 
 V. Mayor 354 
 
 V. Railroad Co. 483 
 
 Warren County v. State 
 
 Wartman v. Philadelphia 
 
 313, 816, 317, 330 
 Warwick v. Mayo 
 
 369, 476, 524, 526, 638, 744 
 
 Washington v. Prank 340 
 
 V. Harvard 751 
 
 V. Nashville 336 
 
 V. Mayor 643, 596 
 
 V. State 593 
 
 Washington Avenue 588, 595 
 
 Water Commissions, &c. 473 
 
 151, 170 
 
 Waters v. Leech 
 
 253, 381 
 
 176 
 
 V. People 
 
 176 
 
 129 
 
 V. State 
 
 176 
 
 65 
 
 V. Waterman 
 
 176 
 
 105 
 
 Watertown v. Cady 
 
 686 
 
 738 
 
 V. Cowen 
 
 .207, 530 
 
 176 
 
 Waterville v. County 
 
 588 
 
 476 
 
 Watson V. Railroad Co. 
 
 488 
 
 751 
 
 V. South Kingston 
 
 466 
 
 176 
 
 Watts V. Carroll Parish 
 
 695 
 
 % T. Scott 849 
 
 Waugh V. Leech 491, 494, 536 
 
 Wayland v. County Commissioners 
 
 462 
 
 Wayne County v. Benoit 174 
 
 V. Detroit 303, 344, 383 
 Weaver v. Devendorf 176, 740 
 
 Webb V. Moler 515 
 
 V. Seal 437 
 
 Webber v. Gray 176 
 
 y. Railroad Co. 544 
 
 Weber v. Lee County 686, 693 
 
 V. San Francisco 738 
 
 V. Zimmerman 707, 708 
 
 Webster v. Chicago 603 
 
 V. Hawrington 9, 733 
 
 Webster County v. Taylor 412 
 
 Weder v. East St. Louis 592, 603 
 Weeks v. Foreman 343, 358, 366 
 
 V. Milwaukee 534, 
 
 596,597,616,617,630,623, 
 765 780 789 
 Weet V. Brockport' 39, 774, 789, 790 
 Weightman v. Washington 
 
 39, 774, 789, 790 
 Weir V. Bush 158, 159 
 
 Weisbrod v. Railroad Co. 
 
 494, 495, 501 
 
 Weisenberg v. Appleton 789, 790 
 
 Welch V. People 364 
 
 v. Ste. Genevieve 109, 110, 113, 
 
 114, 309, 212, 214 
 
 v. Stowell 308, 310, 312 
 
 V. Supervisors 669 
 
 Weld V. Proprietors 701 
 
 Welker v. Potter 
 
 30, 34, 470, 471, 580, 642 
 
 Wellcome v. Leeds 560 
 
 Wells V. Atlanta 58, 371 
 
 V. Battelle 333 
 
 V. Burbank 23 
 
 V. Burnham 388, 639 
 
 V. McLaughlin 537 
 
 V. Weston 588 
 
 Wendell v. Brooklyn 173 
 
 V. Troy 790, 791 
 
 Wertheimer v. Mayor 368 
 
TABLE OF CASES CITED. 
 
 61 
 
 West V. Bancroft 545 
 
 V. Blake 50, 467 
 
 V. Greenville 297 
 
 Westchester v. Apple 791, 795 
 
 West Covington v. Freking 50H 
 
 Westfall V. Hunter . 499, 508 
 
 West River Bridge Co. v. Dix 
 
 454, 464, 467, 468 
 Westerliacen v. Olive 338 
 
 Western College v. Cleveland 
 
 39, 753, 757, 759 
 
 Western Savings Fund Soc. v. Phila 
 
 delphia 30, 89, 40, 
 
 41, 43, 61, 374, 395, 764 
 
 Weston V. Charleston 588, 591 
 
 V. Syracuse 
 
 Wetmore v. Brooklyn Gas Co. 70, 71 
 
 V. Story 326 
 
 V. Tracy 780 
 
 Whalen v. La Crosse 401 
 
 Wharf Case (The) 67, 73 
 
 Wheeler v. Chicago 383, 610 
 
 V. Cincinnati 757, 758, 774 
 
 V. Railroad Co. 629 
 
 V. Westport 788, 789 
 
 V. Worcester 796 
 
 Whicker v. Hume 429 
 
 Whidden v. Drake 65 
 
 Whitaker v. West Boylston 784, 789 
 
 White v. Charleston 758 
 
 V. City Council 763 
 
 V. Cower 503 
 
 V. Flannigan 503, 523 
 
 V. Fuller 43, 47 
 
 V. Godfrey 496, 544 
 
 V. Kent 93, 149, 313, 538 
 
 V. New Orleans 373, 388 
 
 V. Mayor 60, 174, 353, 
 
 356, 481, 596, 637 
 
 V. Phillipson 175, 773 
 
 V. Polk County 172 
 
 V. Railroad Co. 405 
 
 V. Tallman 
 
 101, 146, 279, 284, 385, 287 
 
 V. Washington 347 
 
 V. Yazoo City 753, 755, 783 
 
 Whiting V. Boston 737, 738, 739 
 
 V. Sheboygan R. R. Co. 
 
 104, 105 
 Whitehouse v. Fellows 781 
 
 Whiteside v. People 332 
 
 Whitfield v. Longest 384, 289, 591 
 Whithorn v. Thomas 134 
 
 Whitlock V West 353 
 
 Whitson V. Franklin 
 
 346, 347, 564, 565 
 Whittier v. Varney 233 
 
 Whyte V. Nashville 60, 642 
 
 Wicklifie v. Lexington 503 
 
 Wier V. Railroad Co. 487 
 
 Wiggin V. New York, 59 
 
 Wiggins V. McCleary 503 
 
 V. Philadelphia 393 
 
 Wilbrund v. Avenue R. R. Co. 573 
 
 Wilcox V. Smith 176 
 
 Wilde V. New Orleans 769, 770 
 
 Wilder v. Chicago 151 
 
 Wildy V. Washburn 739 
 
 Wiley V. Board 405 
 
 V. Brinfleld 108 
 
 V. Parmer 591 
 
 Wilkes V. Dinman 176 
 
 Wilkey v. Pekin 626 
 
 Wilkinson v. Albany 305 
 
 V. Bank 663 
 
 Willard v. Killingworth 65, 306, 358 
 
 V. Newburyport 11, 13, 
 
 55, 57, 321, 376, ''96 
 
 V. Presbury 
 Willard's Appeal 
 Willey V. Greenfield 
 Williams, Ex parte 
 V. Augusta 
 
 596 
 
 181, 187 
 
 410 
 
 476, 744 
 
 250, 353, 337, 
 
 344, 358, 361, 366 
 
 V. Boardman 65 
 
 V. Cammack 481, 596 
 
 V. Church 491, 515 
 
 V. Clinton 788 
 
 V. Commissioners 694 
 
 V. County Judge 667 
 
 V. Detroit 481, 589, 596, 
 
 606, 619, 633, 635, 636, 
 
 643, 643, 735 
 
 V. Kenney 65 
 
 V. Kent 610 
 
 V. Lunenburg 304, 315 
 
 V. New Orleans 760 
 
 V. R. H. Co. 524,556,557,574 
 
 V. School District 
 
 314, 333, 616, 751 
 Williamson v. Commonwealth 
 
 343, 349, 358, 361, 364 
 
 WilUmantic Soc. v. School Soc. 137 
 
 Willis V. Booneville 366 
 
 V. Legris 137 . 
 
 Willoughby v. Jenkins 496 
 
 Willis V. County Road 482 
 
 Wilmington v. Roby 389, 590, 591 
 
 Wilson V. Berkstresser 668 
 
 V. Commissioners 085 
 
 V. Goodman 176 
 
 V. Inloes 67, 71, 74 
 
 V. Marsh Co. 467 
 
 V. Mayor 175, 753, 788, 799 
 
63 
 
 TABLE OF CA8B8 CITED. 
 
 Wilson V. New Tork 
 
 62, 753, 800, 801, 803 
 
 V. Poole 649 
 
 y. School District 10, 385, 386 
 
 V. Sexon 490 
 
 Windham v. Portland 138, 129 
 
 Wingate v. Eniskillen Oil, &c. Co. 
 
 384 
 Winn V. Macon 46, 387 
 
 Winona v. Huff 
 
 491, 494, 503, 507, 530, 533 
 
 Winpenny v. Philadelphia 77 
 
 Winsboro v. Smart 819 
 
 Winship v. Enfield 788 
 
 Winslow V. Commissioners 446, 749 
 
 Winston v. Mosebey 668, 680 
 
 Wisby V. Boute 491, 494, 505 
 
 Wisconsin v. Duluth 14 
 
 Wiswall V. Hill 73 
 
 Withers v. Buckley 454 
 
 Woelpper v. Philadelphia 333 
 
 Wolcott V. Wolcott 331 
 
 Wolfe V. Bailroad Co. 558, 570 
 
 Wood V. Bank . 33, 51 
 
 V. Brooklyn 363 
 
 V. Jefferson County Bank 341 
 
 V. Lynn 381 
 
 V. Hears 581, 583, 794 
 
 V. Peake 739 
 
 y. Searl 340, 349 
 
 y. Ward 796 
 
 V. Waterville 388 
 
 Woodbridge v. Detroit 596, 597, 683 
 
 Woodbury v. Hamilton 13 
 
 Woodfolk V. Railroad Co. 488 
 
 Woodruff y. Neal 496, 513, 515, 534 
 
 V. Parkham 591 
 
 y. Trapnall 41 
 
 Woods y. Lawrence County 
 
 108, 431, 435 
 Woodson V. Skinner 449, 514, 518 
 Woodstock V. Gallup 464, 476 
 
 Woodyer v. Hadden 501 
 
 Woolrich y. Forrest 131 
 
 Worcester v. Canal Co. 790 
 
 V. Walker 149 
 
 Work y. State 366 
 
 Workingham y. Johnson 361 
 
 Worrell v. Munn 377 
 
 Worsley v. Municipality 67, 751 
 
 Worth y. Fayetteyille 630, 737 
 
 Wray y. Pittsburgh 596 
 
 Wrexford y. People 303, 308 
 
 Wright y. Boston 645, 647, 751 
 
 y. Chicago 606 
 
 y. Def rees 248 
 
 y. Fawcett 
 
 y. Linn 433, 442 
 
 ♦ y. Victoria 445, 498 
 Wyandotte City y. Wood 24, 24<z 
 
 Wyley y. Wilson 204 
 
 Wyman y. New Tork 503 
 
 Wyncoop y. Society 90 
 
 Wynne y. Wright 291, 591 
 
 Xiquer y. Bnjac 504, 608, 510, 536 
 
 T. 
 
 Yarmouth, Borough of 21 
 
 V. North Yarmouth 30, 47 
 Yates y. Jndd 497, 504 
 
 y. Milwaukee 
 
 70, 71, 75, 308, 323, 324, 497 
 Yeatman y. Crandell 600, 617 
 
 York y. Forscht 91, 302 
 
 Yost's Keport 458 
 
 Young y. Bank 50 
 
 y. Boston 785 
 
 y. Buckingham 199, 321 
 
 y. Camden County 407 
 
 y. Commissioners 176, 761, 763 
 y. St. Louis 352 
 
 y. Yarmouth 552, 796 
 
 Zabriskie y. Railroad Co. 
 
 23, 104, 312, 559. 564 
 Zanesville v. Richards 593, 633 
 
 Zottman y. San Francisco 
 
 878, 386, 890, 610 
 Zylstra v. Charleston 373, 373, 377, 
 802, 303, 359, 366, 744 
 
MUNICIPAL CORPORATIONS. 
 
 CHAPTEE I. 
 
 MtTNICIPAI, IsrSTITTTTIONS. — IlTTBODXTOTOET HiSTOEIOAL 
 
 View. 
 
 § 1. It does not fall witMn the scope of the present 
 treatise to give a detailed account of the origin and rise of 
 cities and towns, nor to trace minutely the history of the 
 rights, powers, and jurisdiction with which they are now 
 generally invested. Such an inquiry more appropriately 
 belongs to the legal antiquary or to the historian ; and yet a 
 brief historical survey of the rise and progress of municipali- 
 ties is essential to an intelligent understanding, even its prac- 
 tical bearings, of the subject of which it is proposed to treat. 
 The origin of towns and cities, and the exercise by them, to 
 a greater or less extent, of local jurisdiction, may be 
 ascribed to a very early period. 
 
 Phoenicia and Egypt were long noted for their large and 
 splendid cities. In the latter country, we jBnd Memphis, 
 one of the old world's proudest capitals, whose location, 
 even, was, nntil very recently, a matter of learned con- 
 jecture and speculation. It was, centuries ago, buried 
 beneath the sands of the encroaching desert, and in our 
 own day it has been exhumed in the presence of Bedouins 
 too wild to be interested in the wondrous revelations of its 
 entombed mysteries. Temples and buildings, vast and 
 magnificent, dating, probably, fifteen centuries before the 
 Christian era,- and preserved by burial, both from decay and 
 spoliation, may to-day be seen almost in their original per- 
 fection. There, too, in "old, hushed Egypt and its sands,'' 
 on the banks of the Nile, are the massive ruins of Thebes- 
 5 
 
66 MUNICIPAL CORPORATIONS. [Ch. I, 
 
 (Diospolis), the cily of "the hundred gates," ante-dating 
 secular history, and claimed by the Egyptians to have been 
 the first capital, as it undoubtedly was one of the oldest cities, 
 of the world. As the eye runs along the colonnades of 
 ruined temples, the mind runs back through the Egypt of 
 the Ptolemies to the Egypt of the Pharaohs, four thousand 
 years ago, when Thebes was in its splendor and its pride. 
 But in the midst of these stupendous remains of this early 
 civilization, we find no evidence of their municipal history 
 and organization. The chief lesson they teach is, that they 
 were the centres of great wealth and power in the governing 
 classes, and that the people, who constitute the true wealth 
 of modern cities, were at the absolute disposalof their 
 masters, bound down and degraded by servitude. 
 
 § 2. Nptwithstanding the people of Greece were of a 
 common blood, language, and religion, Grreece was never 
 politically united. Political power resided not in a number 
 of independent states, but in a large number of free and in- 
 dependent cities, with districts of country adjoining or at- 
 tached to them. Each city, except in Attica, was sovereign 
 — was the sole source of supreme authority — and possessed 
 the exclusive management and control of its own affairs. 
 The citizen of one was a foreigner in the others, and could 
 not, without permission or grant, acquire property, make 
 contracts, or marry out of his own city. The Grecian heart 
 always glowed with patriotic fervor for the city, but rarely, 
 except in times of great common danger, kindled with a 
 love for the whole country. And although, according to 
 Chancellor Kent,' the "civil and political institutions of 
 some of the states of Grreece bear some analogy to the coun- 
 ties, cities, and towns in our American states," yet the anal- 
 ogy, it must be confessed, is both remote and uncertain, and 
 without practical value in the inquiries we are to prosecute. 
 
 § 3. Municipal as weU as private corporations were fa- 
 miliar to the Roman haw. "To conceive," says a modern 
 writer, " of ancient Eome as the capital of Italy in the same 
 sense that London is the capital of England, or Paris of 
 France, would be a great mistake. London and Paris are 
 
 ' Kent Com. 268, note. 
 
Cn. I.] INTRODUCTOET HISTORICAL YIEW. 67 
 
 the chief cities of their respective countries, because they 
 are the seat of government. The people of these cities an^ 
 their surrounding districts have no privileges superior to 
 those of other English or French citizens. But the city of 
 ancient Rome, with her surrounding territory, was a great 
 corporate body or community, holding sovereignty over the 
 whole of Italy and the provinces." None but persons en- 
 rolled on the lists of the tribes had a vote in the popular 
 assemblies or any share in the government or legislation of 
 the city." ' The common division of civic communities 
 established by the Roman government, was three, prefec- 
 tures, municipal towns, and colonies. The prefectures did 
 not enjoy the right of self-government, but were under the 
 rule of prefects, and the inhabitants were subjected to the 
 burdens, without enjoying any of the privileges of Roman 
 citizens. But with the municipal towns it was different. 
 They at length received the full Roman franchise, "and 
 hence," says the learned author just named, "arose the 
 common conception of a municipal town ; that is, a com- 
 munity of which the citizens are members of the whole 
 nation, all possessing the same rights, and subject to the 
 same burdens, but retaining the administration of law and 
 government in all local matters which concern not the 
 nation at large," — a description which answers almost per- 
 fectly to the modem notion of municipal organizations in 
 England and America. The colonies, composed of Roman 
 citizens, were established by the parent city, sometimes to 
 reward public services, but generally as a means of secur- 
 ing and holding the country which had been subdued by 
 Roman arms. The constitution of these colonies, and the 
 rights of the citizens and communities composing them, 
 varied, but it is not necessary for our purpose to trace these 
 differences. The colonies were obliged to provide for the 
 erection of a city, and cities thus erected were called 
 municipia. We thus perceive the justness of the observa- 
 tions of a distinguished modern historian and statesman, 
 who says that " the history of the conquest of the world by 
 Rome is the history of the conquest and foundation of a 
 vast number of cities. In the Roman world in Europe 
 
 > Dr. Liddell, Rome, chap. XXVII. sec. 8. 
 
68 MUNICIPAL COKPOKATIONS. [Ch. I. 
 
 there was an almost exclusive preponderance of cities and 
 an absence of country populations and dwellings." ' The 
 nation was a vast congeries of municipalities bound together 
 by the central power of Rome. 
 
 When the Romans colonized and settled the countries 
 they had conquered they established fixed governments 
 and carried with them, and to a greater or less extent neces- 
 sarily imparted, their arts, sciences, language, and civiliza- 
 tion to their new subjects. And altliough the political con- 
 dition of the vanquished people was far from being de- 
 sirable, still the immediate residence among them of the 
 civilized Roman could not fail to produce effects more or 
 less beneficial ; and thus the munidpia, securing what the 
 Roman arms had achieved, became the efficient means of 
 spreading civilization throughout the Roman world. 
 
 § 4. After the subversion of the Roman Empire the 
 towns of Europe from the fifth to the tenth century were in 
 a state neither of servitude nor liberty, though their con- 
 dition differed greatly in different countries. During this 
 period the power and influence of the towns were, in general, 
 on the decline. The power of the church was great, and 
 the inhabitants found their chief protection in the clergy. 
 
 The establishment of i^e feudal system worked a great 
 
 ' M. Guizot's Hist. CiTilization in Europe, Lect. 11.: "Rome, in its 
 origin, was a mere municipality, a corporation. In Italy, around Rome, 
 we find nothing but cities — no country places, no villages. The country 
 was cultivated, but not peopled. The proprietors dwelt in cities. If we 
 follow the history of Rome, we find that she founded or conquered a host 
 of cities. It was with cities that she fought, it was with cities she treated, 
 into cities she sent colonies. In the Gauls and Spain we meet with nothing 
 but cities ; the country around is marsh and forest. In the monuments left 
 us of ancient Rome we find great roads extending from city to city ; but 
 the thousands of little by-paths now intersecting every part of the country 
 were unknown. Neither do we find traces of the immense number of 
 churches, castles, country seats, and villages which were spread all over 
 the country during the middle ages. The only bequests of Rome consist 
 of vast monuments impressed with a municipal character, destined for a 
 numerous population, crowded into a single spot. A municipal corporation 
 like Rome might be able to conquer the world, but it was a much more 
 difficult task to mould it into one compact body." II. See also 3 Kent 
 Com. 270, note ; Dr. Adam Smith's interesting chapter : Wealth of Nations, 
 book III. chap. IL 
 
Ch. L] mTEODUCTORY HISTORICAL VIEW. Q9 
 
 change in the condition of the towns. Before that, towns, 
 as we have seen, were the centres of wealth and population. 
 The ruling class lived within them. The land was cultivated 
 by persons who were not recognized as having political 
 rights. After feudalism was established, this changed. The 
 proprietor then lived upon his estates, instead of living within 
 a tow* ; the town became part of the lands of the lord, or 
 enclosed within his fief. It, with its population, became thus 
 subject to his arbitrary exactions, oppression, and pillage. 
 Still the towns gradually prospered, and with prosperity 
 came wealth ; with wealth came influence and power. Such, 
 in general, was the condition pf the towns of continental 
 Euiope down to the eleventh/ century. About this time, 
 without any union or concert, inany of them in most of the 
 countries of Europe rose against the lords, and demanded 
 for the burgesses, commonalty, or inhabitants, a greater or 
 less measure of enfranchisement. Sometimes a town failed 
 in its struggle, and its oppression was redoubled by the vic- 
 torious lord. Sometimes the towns were aided by the king, 
 who was frequently not unwilling to humble the arrogant 
 and haughty nobility, and thereby acquire the influence and 
 afiiection . of those whom he thus assisted. Not unfrequently , 
 however, the struggle had to be* maintained by their own 
 unaided resources, and when successful, the result was the 
 granting of Chaktees, conferring more or less extensive 
 municipal immunities and rights, by the lords to the 
 burghers. These charters, as Graizot justly observes, were 
 in the nature of "treaties of^eace between the commons and 
 their lords ;" were, in fact, "bills of rights" for the people.' 
 During the twelfth century, "all Europe, and especially 
 France, which for a century had been covered with insur- 
 rections by burghers against their lords, was covered by 
 charters more or less favorable ; the corporators enjoyed them 
 with more or less security, but still they enjoyed them." ' 
 
 • People 7). Morris, 13 Wend. 335, 334, per Ifelion, J. 
 
 ' Guizot's Hist. Civ. in Europe, lecture VII. This philosophic and 
 valuable wori^Jp the source from whence are drawn most of the statements 
 of the text as to the condition of the towns of Europe from the fifth to the 
 tenth century. See similar account, Wealth of Nations, book HI. chap. 
 m. ; Hallam's Middle Ages, chap. U. part II., and notes to later editions. 
 
70 MUNICIPAL CORPORATIONS. [Ch. I. 
 
 § 5. After the overthrow of the Roman Empire and. the 
 civilization which accompani^d the Roman power, Europe 
 became indebted to cities and to the authority which they 
 acquired, and the jurisdiction which they exercised for the 
 creation of the third estate — ^popular power — and for the 
 development of the principles of constitutional or free 
 government.' + 
 
 The Italian cities, especially Venice, Genoa, and Pisa, 
 grew rich from the commerce resulting from the vast armies 
 which the Crusaders for two hundred years had successiyely 
 pushed forward into the Holy Land. The oppressive feudal 
 system was at this time in full force throughout Europe. 
 These Italian cities used their power and wealth to secure 
 their independence. Cities and towns, as well as people 
 who dwelt in the country, were alike subject to the arbitrary 
 and oppressive exactions of their feudal masters. Some of 
 the cities in the eleventh century obtained their freedom by 
 purchase, and some by force, and some by gift. They were, 
 in effect, constituted so many little republics, with the right 
 to manage their own concerns. In this way, before the 
 end of the thirteenth century, nearly every considerable 
 city of Italy was enfranchised or had received extensive cor- 
 porate immunities from the sovereign or lord. The happy 
 effects were soon perceived in the increased population and 
 prosperity. 
 
 § 6. Whether from example, as asserted by Dr. Robert- 
 son, or from other causes, the same course was adopted by 
 the cities of other states in Europe. The king of France, 
 Louis le Gros, and his great barons, granted many charters 
 of community, by which the inhabitants were freed from 
 feudal servitude and erected into municipal corporations, 
 with the power of local self government. These charters 
 
 ■ "The institution of cities into communities, corporations, or bodies 
 politic, and granting them the privilege of municipal jurisdiction, contrib- 
 uted more, perhaps, than any other cause, to introduce regular goTernment, 
 police, and arts, and to difiiise them over Europe." Bobertson's Charlec 
 V. ; see Hallam's Middle Ages, chap. 11. part II. M. Guizot considers thf 
 three great elements of modem civilization to be the Fe^al System, the 
 Christian Church, the Commons, or free corporate cities; Civ. in Europe. 
 Lecture VII.; see also "Wealth of Nations, book III. cbap. EU., on "The 
 Rise and Progress of Cities and Towns, after the Fall of the Boman Empire." 
 
Ch. L] mTRODUCTORT HISTORICAL VIEW. 71 
 
 contained grants of new privileges, and prescribed salutary 
 methods for the enforcement of rights and the redress of 
 grievances. They are both interesting and instructive, and 
 a brief view of their character is given in the note.' 
 
 We meet, in France, with great diversity in the origin 
 and government of towns and cities. In some of them, 
 especially in southern France, the Roman municipal system, 
 more or less modified from time to time, was perpetuated 
 The Eoman system was formed upon an aristocratic model. 
 In each municipium there was a senate, called an ordo or 
 curia. This was, politically considered, the city ; it was 
 the governing body. The mass of the population, except in a 
 few cases, had no voice in municipal affairs. This senate was 
 
 • AJbstraet of municipal charter in the middle ages. — In those turbulent 
 times personal safety was an object of the first importance, and this 
 ■was usually afforded to the vassal by the baron or lord. The com- 
 munities or free towns which were instituted, imdertook to provide for 
 the safety of their members, independent of the nobles. For, 1. All the 
 members were bound by oath to assist and defend each other against 
 all aggressors. 2. All residents in a town made free, were obliged to take 
 part in the mutual defence of its members. 3. The communities could 
 execute the judgments of their magistrates by coercion, if necessary. 4. 
 The practice, of making private satisfaction for crimes was abolished, and 
 provision made for the regular punishment of offenders. 5. A person 
 reasonably suspected to be about to injure another, might, as with us at 
 the present day, be compelled to give security to keep the .peace. These 
 communities also undertook to provide for the security of property by the 
 following: 1. Abolishing the right of the creditor to seize the effects of 
 his debtor with his own hand and by his private authority, and compelling 
 him to prodeed before a magistrate, who was authorized to issue the neces- 
 sary process for the seizure and sale of property, humane and necessary ex- 
 emptions being allowed. 3. Every member was obliged to bring some of 
 his property into the town, or build a house, or buy land; and in some 
 places the members were bound for each other. 3. -Judgments by magis- 
 trates duly selected, took the place of the arbitrary and capricious decisions 
 of the baron or feudal lord. 4. Arbitrary taxation was prohibited, and 
 regulations for an equal tax were sometimes especially prescribed. Digested 
 from Robertson's Charles V., vol. I. note XVI. Proofs and Illustrations. 
 " Th* communities of Prance never aspired," says this accurate and elegant 
 historian, " to the same independence with those in Italy. They acquired 
 in France new privileges and immunities, but the right of sovereignty re- 
 mained entire to the king or baron within whose territories the respective 
 cities were situated, and from whom they received the charter of their 
 freedom." Jb, Charters defined, post, sees. 15, 49. Municipal charters, 
 treated of, post, chaps. V. VI Outline of modern municipal charter in the 
 United States, post, sec. 19. 
 
72 MUNICIPAL CORPOBATIONS. [Ch. I. 
 
 composed of a comparatively small number of families, and 
 the office was hereditary. When the body became thinned 
 or reduced by death or otherwise, it was not filled by the 
 people, the mass of the population, but by the survivors. 
 
 Other towns or communities originated, in the most natu- 
 ral manner, upon the fiefs or estates of the feudal proprietors. 
 Many of these estates became centres or agglomerations of 
 population composed of the working and industrial classes. 
 Trade sprung up, and towns and. cities originated. The 
 lord, or proprietor, was interested in, and derived profit 
 from,' their prosperity. To induce others to settle there, he 
 often conceded certain privileges. He did not emancipate 
 them from all feudal restraints or domination, but these he 
 mitigated. Often he granted lands and privileges to all 
 who settled in towns on his domains, on receiving a moder- 
 ate fixed rent and specified military services. These con- 
 cessions had no higher origin than the personal interest of 
 the proprietor, and were often violated. They did not con- 
 stitute the towns locally independent, or make them true 
 corporations. But limited and uncertain as these conces- 
 sions were, the towns which received them prospered and 
 became more or less important. 
 
 Other places were chartered towns and true corporations. 
 In the twelfth century there was the general movement, before 
 noticed, on*the part of the towns of France, for their enfran- 
 chisement, or delivery from feudal bondage. The extent of 
 this movement may be judged from the fact that the royal 
 charters of this period are numbered by hundreds, and those 
 granted by the lords, by thousands. These were, in general, 
 wrested from the feudal proprietors by force, or the fear of 
 it, and conferred an almost independent political existence 
 upon the commune, or town. These charters gave the com- 
 munity the power of having its people judged for offences by 
 magistrates of their own choosing ; crimes and punishments 
 were defined ; arbitrary rents and taxes abolished, and fixed 
 rents and regular taxes substituted ; main-morte and other 
 restraints upon the alienation and enj oy ment of property were 
 removed. The government of towns thus created, unlike 
 those which were mere perpetuations of the Roman system, 
 was formed upon a democratic model. A voice was given to 
 all burghers, or persons of a certain fortune, or who exercised 
 
Ch. I.] INTRODUOTOEY HISTORICAL VTEW. 73 
 
 a trade or calling. lu a word, with considerable diversity, this 
 class of towns was independent, and possessed, in local mat- 
 ters, the power of self-government. From and after the four- 
 teenth century, the political power and influence of the towns 
 of France decayed. The causes of this decline have been 
 trace(|, with a masterly hand, by M. Gruizot, but they do 
 not relate to our purpose.' In the course of change, we 
 may remark, that the royal power over them became pre- 
 dominant, and instead of being self-governed, they were, 
 and are, administered by the intendants, or officers of the 
 king or emperor, or central authority at Paris. 
 
 Towns, or communes, in modern France are governed by a 
 mayor and council. By the law of 1855, in all communes 
 of 3,000 inhabitants and ^upwards, these officers are ap- 
 pointed by the emperor ; while in smaller communes the 
 appointment is made by the prefect of the department, him- 
 self appointed by the emperor. The prefect may suspend mu- 
 nicipal councillors, but the emperor alone can dismiss them.' 
 
 § 7. It seems to be well established, that the towns and 
 cities of Spain acquired charters of freedom at an earlier 
 period than towns in France, England, or Germany.' The 
 cities of Italy, as we have seen, owed, to a large extent, their 
 freedom to their commercial importance and wealth ; but 
 
 1 Histoiy Civilization in France, Lect. XIX. ; see, also, Hallam's Middle 
 Ages, chap. 11. part II. and notes. 
 
 ' American Encyclopedia, Commune. 
 
 * The most ancient of these regular charters of incorporation now ex- 
 tant was granted by Alfonso V. in 1030, to the city of Leon and its terri- 
 tory. It preceded, by a long interval, those granted to the burgesses in 
 other parts of Europe, with the exception, perhaps, of Italy. Acts of en- 
 franchisement became frequent in Spain during the eleventh century, sev- 
 eral of which are preserved, and exhibit witb sufficient precision the nature 
 of the privileges accorded to the inhabitants. Robertson (in his History of 
 Charles V. Introductory View), who wrote when the constitutional an- 
 tiqvdties of Castile had been but slightly investigated, would seem to have 
 no authority, therefore, for deriving the establishment of communities from 
 Italy, and still less for tracing their progress through France and Germany 
 to Spain. Prescott's Ferdinand and Isabella, Introduction, vol. I. note 34. 
 
 Hallam, who, as well as Prescott, founds his judgment upon the his- 
 torical works of Marina and Sempere, expresses a similar opinion as to the 
 early period at which the towns of Spain were invested with chartered rights 
 and privileges. Middle Ages, chap. IV. ; /*. chap. H. pft-.t II. and notes. 
 
74 MUNIQJPAL CORPORATIONS. [Ch. I. 
 
 those of Spain owed their privileges and. jurisdiction to an 
 entirely different cause. For nearly eigM hundred years the 
 Gfothic inhabitants of Spain had been engaged in an almost 
 uninterrupted struggle against the Moors or Arabs who occu- 
 pied the southern part of the peninsula.' It was obviously the 
 dictate of policy, as the Spaniards gradually narrowed the 
 boundaries of their enemies' territory, to make provision for 
 securing and holding the ground thus gained. With this 
 view, and for the purpose of protecting themselves from the 
 frequent raids of their Arab neighbors, liberal charters where 
 granted to towns, with extensive districts of country sub- 
 ject to their municipal jurisdiction. 
 
 By these grants or charters the citizens selected their 
 own officers, including judges and a common council, and 
 enjoyed all the essential rights of freemen. In return, the 
 community or city paid a certain (no longer an arbitrary) 
 tax or rent, and owed military service. For more effectual 
 protection, the charters , frequently prohibited the nobles 
 from acquiring real property or erecting fortresses or 
 palaces within the limits of the community, and subjected 
 them to its jurisdiction when within its territory. Large 
 portions of the adjacent country, as we have said, often em- 
 
 ' Mr. Irving's fine reflections, in his Alliambra, upon this protracted and 
 famous contest between the Crescent and the Cross, are not inappropriate : 
 " The singular fortunes of the Arabian or Morisco-Spaniards, form one of 
 the most anomalous yet splendid episodes in history. A remote wave of 
 the great Arabian inundation, cast upon the shores of Europe, they seem 
 to have all the impetus of the first rush of the torrent. But repelled (by 
 unsuccessful battle) within the limits of the Pyrenees, they gave up the 
 Moslem principle of conquest, and sought to establish in Spain a peaceful 
 and permanent dominion. Generation after generation, century after cen- 
 tury passed away, and still they maintained possession of the land. With 
 all this, however, the Moslem empire in Spain was but a brilliant exotic 
 that took no permanent root in the soil it embellished. Severed from all 
 their neighbors in the west by impassable barriers of faith and manners, 
 and separated by seas and deserts from their kindred of the east, the Mo- 
 risco-Spaniards were an isolated people. Their whole existence was a 
 prolonged, though gallant and chivalric, struggle for a foothold in a 
 usurped land. They were the outposts and frontiers of Islamism. The 
 peninsula was the great battle ground where the Gothic conquerors of the 
 north and the Moslem conquerors of the east met and strove for mastery ; 
 -and the fiery courage of the Arab was at length (after 800 years) subdued 
 by the obstinate and persevering valor of the Goth." 
 
Ch. I. J INTRODUCTORY HISTORICAL VIEW. 75 
 
 bracing towns and villages, were annexed to the city or 
 community and placed under its laws and jurisdiction. 
 "Thus," says Mr. Prescott,' to whom we are chiefly 
 indebted for this sketch of the early municipalities of 
 Spain, "while the inhabitants of the great towns in 
 other parts of Europe were languishing in feudal servitude, 
 the members of the Castilian corporations,, living under the 
 protection of their own laws and magistrates in time of peace, 
 and commanded by their own officers in war, were in full en- 
 joyment of aU the essential rights and privileges of freemen." 
 
 § 8. Britain was one of the last conquests of the 
 Caesars, and was one of the first of the western provinces 
 upon which they released their hold. The Latin language 
 did not become the language of the people ; nor did the 
 Eomans, as in many of the continental proyinces, fill the 
 country with memorials of their skill and arts. The im- 
 pressions made by the mastery of the Roman were not des- 
 tined to be permanent. According to an accurate explorer 
 and philosophic modern historian," Britain, when subject to 
 Rome, was divided into thirty-three townships, with a 
 certain share of local self-government ; and quasi municipal 
 institutions, for a long time after the withdrawal " of the 
 Roman power, constituted whatever of government the 
 people possessed. At the time of the conquest of England 
 by William of Iformandy (A. D. 1066), the towns and bor- 
 oughs were dependent upon the uncertain protection of the 
 king or lord, to whom they owed rents or service, and were 
 liable to discretionary, that is, arbitrary, rates or talliages. 
 They were not incorporated, did not constitute bodies poli- 
 tic ; and being composed mainly of tradesmen and the 
 lower classes, were regarded by their feudal masters as pos- 
 sessed of no political and of but few civil rights. IS'one of 
 them enjoyed the right of representation in the council of 
 the nation, and, with the exception, perhaps, of London 
 and a few of the greater towns, did not possess the right of 
 internal or self-government. Some time between 1100 and 
 1125 Henry I. granted to London the original charter, in 
 which were conferred many valuable municipal privileges, 
 
 ' History Ferdinand and Isabella, vol. I. Introduction, sec. 1. 
 Sir James Mackintosh's History of England, vol. I. p. 30. 
 
78 MUNICIPAL CORPORATIONS. [Ch. I. 
 
 with the right, among others, to choose certain of their own 
 oflBicers, such as sheriff, justice, and the like.' But the 
 right of local self-government was not, in general, conferred 
 upon towns and boroughs until the time of John, who 
 reigned from 1199 to 1216.' Meantime the towns and cities 
 continued to grow in population and wealth, and as these 
 increased, their disposition to submit to arbitrary exactions 
 proportionately diminished, and their independent spirit 
 and desire for freedom from opprSssive restraints became 
 more manifest ; but still they did not acquire sufficient influ- 
 ence or importance to be allowed a representation in the 
 states of the kingdom for more than two centuries after the 
 conquest. It was not uutil the time of Edward the First 
 that cities and boroughs, then mostly incorporated, ob- 
 tained the right of returning members to parliament. The 
 legislative power of the kingdom was at this time vested in 
 the king and the council, afterwards called the parliament. 
 This council was constituted of the spiritual and lay peer- 
 age. The commonalty of England had no voice or part in 
 the legislature. This wise and politic prince was greatly 
 distressed for money, and instead of attempting to raise it 
 by the levy of arbitrary taxes or talliages, which were sub- 
 mitted to with murmurs and yielded sparingly, preferred to 
 obtain it by the prior voluntary consent of the cities, towns, 
 and boroughs. He hit upon this device. He caused writs 
 to be issued to about one hundred and twenty cities and 
 boroughs, enjoining them to send to parliament, along with 
 the two knights of the shire, two. deputies from each 
 borough within their county, with authority from their 
 respective communities to consent to what the king and his 
 council should require of them. As the experiment proved 
 
 ' This famous charter has no date. Its substance is given in Norton's 
 Commentaries on the History, Constitution, and Chartered Franchises of 
 the City of London, and its various provisions explained and commented 
 on ; book II. chap. U. p. 337. In the latter clause of this charter is an 
 allusion to the very ancient custom of foreign attachment, in which is to 
 be found the germ of all our foreign attachiaent laws. Pulling's Laws, &c., 
 of London, 188; Hallam's Middle Ages, vol. III. chap. VIU. part UI. 
 Mr. Norton gives the substance of all the charters of London from the 
 time of William the Conqueror to the present. 
 
 ' Hallam's Middle Ages, vol. HI. chap. VIH. 
 
Ch. I] INTRODUCTORY HISTORICAL VIEW. 77 
 
 successful, and more money was obtained, and with less 
 trouble, than in the former way, the practice was continued. 
 And this, according to the best opinions of learned and 
 careful inquirers,' is the origin of popular representation, 
 and of the house of commons itself, the latter constituting, 
 as Macaulay well observes, ' ' the archetype of all the repre- 
 sentative assemblies which now meet, either in the old or new 
 world."' And for this England and the world are in a great 
 measure indebted, ^s this cursory review shows, tothespiritof 
 independence which animated the towns and cities, and to the 
 pecuniary wants of an enterprising and ambitious monarch. 
 The political powers thus acquired by towns gave them 
 political importance. This power was courted and con- 
 trolled by the crown. The king's judges decided that no 
 corporation was valid without the sanction of the king, and 
 most of the corporations from time' to time applied to the 
 crown for a grant or confirmation^of their privileges. Their 
 dependence upon the crown was thus established, and the 
 crown, as a check upon the nobles, encouraged j?o^ttZ(zr 
 electtuns by the wjiole corporate assembly.'. In the course 
 
 ■ Hallam's Middle Ages, vol. III. chap. VIII. ; Hume, England, toI. I. 
 App. n. ; Dr. Adam Smith's Wealth of Nations, book HI. chap. HI., 
 whose account of the condition of the towns ajid boroughs at this period, 
 and the decay of the power of the lords and the growth "of the power of 
 the inhabitants of the cities is, though brief, perspicuous and satisfactory, 
 Norton's Com. Lond. 109. A distinctive feature of horougTis, in England, 
 is the right of the borough to elect members of parliament. There the 
 term borough, includes cities as well as villages, but in the United States 
 the term borough is not in very general use, and, when used, designates an 
 incorporated village or town, but not a city. American Cyclopedia, vol. 
 m. 536, Borough. 
 
 " History England, Vol. I. Chap. I. : " The crown ! it is the house of 
 commons 1" said Mr. Roebuck, in 1858; and the recent histoid of Great 
 Britain, in several memorable instances, shows that against the declared and 
 positive determination of the commons neither the crown' nor the lords, in 
 any struggle relating to popular rights, can make effectual resistance. And 
 so a close observer of our American institutions will discover that both the 
 senate and the executive, on contested questions, ultimately yield to the 
 controlling power and growing importance of the house of representatives. 
 
 ' An English Municipal Corporation, as wiU be explained hereafter, 
 consisted usually of one or more select or definite bodies, and an indefinite 
 body, the latter being generally composed of the burgesses or citizens; and 
 a Corporate Assembly was a meeting of all the bodies and not of the select 
 or definite bodies alone. 
 
78 MUNICIPAL CORPORATIONS. [Gh. I. 
 
 of time it was found that these representatives were more 
 formidable to the power of the crown than the nobility had 
 been. In Elizabeth's time compliant judges decided that 
 although the right of election was, by the original constitu- 
 tion or charter, in the whole assembly, still from usage, 
 even when within the time of memory, a by-law may be 
 presumed giving the right of election to a select class (more 
 readily controlled by the crown) instead of the whole body.' 
 
 Afterwards, to increase the power of the crown, James 
 incorpdrated towns or boroughs, endowing them with the 
 parliamentary franchise, but confining the exercise of the 
 right to vote to select classes. The immense power of 
 popular representation was a most active agency in the 
 overthrow of Charles L, and the temp?)rary subversion of 
 the throne. This power proving inimical to the arbitrary 
 schemes of the Protector, he expelled the members by 
 violence, and subdued their authority in parliament by 
 force. He then secured this power in his own favor by 
 expelling all hostile magistrates and officers and supplant- 
 ing them with others of his own creation. 
 
 On the restoration, Charles II. commenced his reign by 
 reconstructing the corporations and filling them with his 
 own creatures. Judgqs, also creatures of the king, holding 
 commissions during his pleasure, aided him in his scheme 
 to acquire absolute control over all of the corporations of 
 the realm. London, as the largest and most influential, was 
 selected as an example, .and in 1683' the famous quo war- 
 ranto was issued against the the city to deprive it of its 
 charter, for two alleged violations, one of which was stale, 
 and both frivolous. Judgment passed, of course, against 
 the city, and its ancient charter was abrogated." As a con- 
 dition of its restoration, it was, among other things, provided 
 that thereafter the mayor, sheriff, clerk, etc., should not 
 exercise their office without the king's consent ; and that if 
 
 'Willcock on Municipal Corp. 8; 3 Hallam's Const. History, 53. 
 
 ' Rex ». City of London, Mich. 33 Car. II. ; 2 Show. SSa-jPulling'sLaws, 
 etc. of London, 14. The history of the seizure of the city franchises, by 
 virtue of the writ of quo wwrranto is given at some length by Norton, Com. 
 OD the fflstory, etc. of London, book I. chap. XX. ; see also The Case of 
 the CUy of London, 8 How. State Trials, 1340, et »ej. 
 
ch. l] introdttctokt historical view. 79 
 
 the king twice disapproved of the officers elected by the 
 corporation, he might himself appoint others. In short, the 
 city was deprived of the right of electing its own officers, 
 and made dependent upon the crown. And such was the 
 fate of most of the considerable corporations in England. 
 The whole power was in the hands of the king.' 
 
 Nor were these arbitrary proceedings confined to Eng- 
 land. In 1683 writs of quo warranto and scire facias were 
 issued for the purpose of abrogating the character of Mas- 
 sachusetts. Pariotism and religion mingled their fervors 
 and combined in its defence, but in vain. Servile judges, in 
 June, 1684, one year and six days after judgment against 
 the city of London, adjudged the charter to be condition- 
 ally forfeited ; and the charter government was displaced, 
 and popular representation superseded by an arbitrary 
 commission. In 1687, similar writs were issued against the 
 charters of Rhode Island and Gctonecticut ; when, as is well 
 known, the people of the latter colony unsuccessfully en- 
 deavored to preserve this cherished muniment of their 
 liberties by concealing it in the charter oak. The colonies, 
 as a result of the English revolution of 1688, had their 
 charters restored. Very shortly after the accession of William 
 and Mary, a bill to restore the rights of those English cor- 
 porations which had surrendered their charters to the crown 
 during the reigns of James 11. and Charles II., was intro- 
 duced into parliament and became a law, with the general 
 applause of men of all parties.' 
 
 Reference has already been made to the fact that in the 
 time of Elizabeth, the controlling power of corporations was 
 virtually vested in " select bodies." To remedy these and 
 many other abuses, the Municipal Corporations Reform Act 
 (5 and 6 Will. IV. c. 76) was passed. This law sought to 
 restore corporations to their original design, as institutions 
 for the local government of the place, to be controlled by 
 those interested in it, and not by a favored few. It is un- 
 doubtedly true, as remarked by Mr. Hallam, that " No 
 
 ' There were eighty-one quo wa/rranto informations brought against 
 municipal corporations by Charles EC. and James II. 3 Ohandl. Com. Debs. 
 316. 
 
 » Macaulay's History of England, vol. III. chap. XV., whore a graphic 
 account of the history of its passage is given. 
 
80 MUNICIPAL CORPORATIONS. [Ch. I. 
 
 political institution can endure wUch. does not rivet itself 
 to the heai-ts of men by ancient prejudice or acknowledged 
 interest." That is, it cannot permanently endure, although, 
 it may exist long after it ought to cease. If ever an in- 
 stitution outlived its usefulness— lived long after it became 
 a positive evil — ^it was the municipal corporations of Eng- 
 land, prior to the reform act just mentioned, and which be- 
 came a law as late as 1835. In many important places in 
 England the number of corporatOBS ranged as low as from 
 ten to thirty. In a large majority of the municipalities, the 
 coporations were close ; that is, the governing body had the 
 power to determine who should be admitted to freedom or 
 membership ; and often the privilege was conferred upon 
 non-residents and the residents excluded. The most im- 
 portant franchise they possessed was that of electing mem- 
 bers of parliament, and this, in many places, was the princi- 
 pal function of the corporation. Not only were the councils 
 self-elective, but their tenure was for life. They were fre- 
 quently controlled by a single party, and all persons enter- 
 taining other opinions were of course excluded. The corpo- 
 rations were not in sympathy with, nor did they reflect the 
 wishes of, the people over whom they exercised local juris- 
 diction. There was no check upon mal-administration. 
 The property was wasted; extravagance characterized the 
 expenditures of money ; officers were elected by the irre- 
 sponsible councils from favoritism or devotion to party.' One 
 of the first acts of the Reformed House of Commons was the 
 overthrow, in 1835, of this intolerable system, by the passage 
 of the above-mentioned Municipal Corporations Statute, to 
 which we shall have frequent occasion to refer in the subse- 
 quent pages of this work. 
 
 Lord Brougham has many titles to the affectionate 
 regard of posterity. Few of his claims are stronger, 
 however, than those which arise from his faithful and 
 effectiv.e services in promoting the reform of the Muni- 
 cipal Corporations of Great Britian, by abolishing these self- 
 elected and perpetual councils, and by organizing the cor- 
 porations upon an uniform model, and by establishing in 
 the act the principle that the councils should be selected for 
 
 ' Glover on Corp. XXXVIU. et teg.; Report of CommissionerB of Corpo- 
 rate Inquiry, 33, et aeq. 
 
Oh. I.] INTRODUCTORY HISTORICAL VIEW. 81 
 
 short and fixed periods by the votes of the burgesses, thus 
 recognizing and adopting the representative system. Mr. 
 Willcock, in concluding his treatise/ had recommended a 
 similar reform, but disclaimed being so visionary as to sup- 
 pose it would soon be eflfected, since parliament would not 
 willingly relinquish 'its influence over venal boroughs, and 
 members elected by corporations would not be allowed by 
 their constituents to abandon their ancient though unjust 
 privileges ; but within ten years from the time his language 
 was penned, the reform of which he almost despaired was 
 accomplished. 
 
 § 9. In general, all of our American cities, towns, and 
 counties are public corporations, full or quasi. They are 
 created by the legislature, and are usually endowed with 
 powe« to legislate upon, decide, and control local and sub- 
 ordinate matters pertaining to their respective localities. 
 The number and freedom of these local organizations, 
 whereby political power is conferred upon the citizens of 
 the various local subdivisions of a state who have a right to 
 vote and to regulate their own domestic concerns, constitute 
 a marked feature in oar free system of government." In 
 general, each road-district, each school-district, each city 
 and each county is, as to local concerns, self-governed^ 
 These organizations are, of course, subject to the legisla- 
 ture of the state, and their acts, so far as they affect private 
 
 '■Willock'aMunicipal Corp. 513, 514. London, with its "great and.notr 
 able franchises, liberties, and customs," to treat of which, says Lord Coke 
 (4 Inst. 350), "would require a whole volume of itself," was not embraced 
 in the general act of 5 and 6 Will. 4, chap. 76, but there was subsequently 
 passed an important statute known as the London Corporation Reform Act 
 of 1849. See Supplement toPulUng's Laws, etc., of London. 
 
 On the 15th day of August, 1867, after a memorable struggle between 
 the lords and the commons, what is known as the Disraeli Reform Bill, hs- 
 came a law, by which the right to vote for members of parliament for 
 borougls was greatly extended. 
 
 ' " In all quasi corporations, as cities, towns, parishes, school-districts, 
 membership is constituted by living within certain limits." Per Bhaw, C. 
 J., Overseers of Poor, etc. v. Sears, 33 Pick. 133, 130. 
 
 " When a man," says Mr. Justice Morton, Oakes «.. Hill, 10 Pick. 333,. 
 846, " moves into a town, he becomes a citizen thereof (if possessed of the 
 requisite qualifications as to age, etc., and if he remains the requisite length. 
 of time) whatever may be the desire of hipiserf or the town." 
 
82 MUNICIPAL C0EP0RATI0N8. [Ch. I. 
 
 rights, are also the subjects of judicial cognizance and re 
 view. The policy of creating local public and municipal 
 corporations for the management of matters of local con- 
 cern, runs back to an early period in our colonial history, 
 is exhibited in all our legislation, and expressly or im- 
 pliedly guaranteed in our state constitutions.' 
 
 The elective franchise in these "local republics" is not, 
 as was the case until recently in England, a privilege de- 
 pendent upon custom or usag^ or confined to certain 
 classes, but is uniform and universal, extending to all of the 
 adult male citizens. Old sarums and rotten boroughs, as 
 well as property qualifications, are unknown. Tiie effect of 
 this policy of establishing cities, towns, and districts of 
 country into bodies politic and investing the citizejns thereof 
 with the power of self-government, has, upon the whole, 
 been most happy. 
 
 Tt has been noticed by Chancellor Kent,'- that one of the 
 most philosophical and fair of foreign observers ° was much 
 
 ' Kent Com. 375 ; Cooley Const. Limit, chap. 8. See also this learned 
 author's recent opinion in the Supreme Court of Michigan, in the People 
 V. Hurlburt, 34 Mich. 44. 1871. State v. Noyes, 10 Post. (N. H.) 393; 
 BoT «. Allenstown, 34 N. H. 351; Caldwell t. Justices, etc., 4 Jones (Nor. 
 Car.) Eq. 333 ; Comw. ■». Roxbury, 9 Q-ray, 503, 510, 511, note; written by 
 Mr. Gray, now one of the justices of the Supreme Judicial Court of Massa- 
 chusetts; Webster D. Hawringtoh, 32 Conn. 131. In Mr. Quincy's Muni- 
 cipal History of Boston, chap. I. will be found an interesting historical ac- 
 count of the constitution of towns in Massachusetts, and of their mode of 
 •organization and operation — particularly of the town of Boston. 
 
 « 3 Kent Com. 375, note. 
 
 'M. De Tocqueville, Democracy in America : " Local assemblies of citi- 
 zens constitute the strength of free nations. Municipal institutions are to 
 liberty what primary schools are to science; they bring it within the peo- 
 ple's reach; they teach men how to use and how to enjoy it. A nation 
 may establish a systein of free government, but without the spirit of muni- 
 cipal institutions it cannot have the spirit of liberty." M. De Tocquevilte's 
 Democracy in America, chap. V. 
 
 "Prom time immemorial," says one of the ablest of American common 
 .aw judges, " the counties, parishes, towns and territorial subdivisions of 
 the country, have been allowed in England, and,' indeed, required, to lay 
 rates on themselves for local purposes. It is most convenient that the local 
 establishments and police should be sustained in that manner ; and, indeed, 
 to the interest taken in them by the inhabitants of the particular districts, 
 and the information upon law and public matters generally, thereby dif- 
 fused through the body of the people, has been attributed by profound 
 thinkers much of that spirit of liberty and capacity for self-government, 
 
Ch. I.] INTRODUCTORY HISTORICAL VrEW. 83 
 
 Btruck with the institutions of New England towns ; and 
 considered them as small independent republics, in all 
 matters of local concern, and as forming the principle of 
 the life of American liberty existing at this day. 
 
 The value of our system of municipal institutions, to 
 which we have thus alluded, may be seen on comparing the 
 political condition of the people of the United States with 
 that of the people of modern France — selected as a fair ex- 
 am'ple of a government without municipal freedom, France 
 is a highly centralized government. The state there is every- 
 thing ; the people, nothing. Municipal institutions, with a 
 democratic element, or with the power of independent local 
 self-government, belong, there, to the past. The central 
 power governs and regulates everything. It provides amuse- 
 ments, constructs roads, bridges, internal improvements, 
 controls trade, inspects manufactures. The*effects of this 
 system are thus stated : "Develop in the slightest degree a 
 Frenchman's mental faculties, and he flies to a town as 
 surely as steel filings fly to a loadstone. From all parts of 
 France men of great energy, aijd resource struggle up and 
 fling themselves on the world of Paris. There they try to 
 become great functionaries. Through every department of 
 the eighty -four, men of less energy and resoui'ce struggle up 
 to the provincial capital. All who have, or think they have, 
 heads on their shoulders, struggle into town to fight for 
 office which the government alone can confer. The whole 
 energy and knowledge and resource of the land are barreled 
 
 through representatives, which has been so conspicuous in the mother 
 country, and which so eminently distinguishes the people of America. 
 From the foundation of our government, colonial and republican, the 
 necessary sums for local purposes have been raised by the people or au- 
 thorities at home. Court-houses, prisons, bridges, poor-houses and the like, 
 are thus built and kept up, and the expenses of maintaining the poor, and 
 of prosecutions and jurors, are thus defrayed, and of late (in North Caro- 
 lina), a portion of the common school fund, and a provision for the indi- 
 gent insane are thus raised, while the highways are altogether constructed, 
 and repaired by local labor, distributed under the orders of the county 
 magistrates. When, therefore, the constitution vests the legislative power 
 in the General Assembly, it must be understood to mean that power as it 
 had been exercised by our forefathers, before and after their migration to 
 this continent." PeiEuffin, J., in Caldwell®. Justices, etc., 4 Jones (N. 
 Car.) Eq. 323, 1858. 
 
84 MUNICIPAL C0EP0EATI0N8. [Ch. L 
 
 up in the towns— all between towns is utter intellectual bar- 
 renness." 
 
 Such are the withering effects of a centralized despotism." 
 How different with the decentralized system of government 
 in the United States, where each local constituency chooses 
 its own officers — each road-district, school-district, village, 
 town, city, and county administers its own affairs by the 
 people and for the people." 
 
 To civil territorial divisions, erected into corporations 
 with defined powers of local administration, and the exten- 
 
 ' The foregoing was written prior to the dethronement of Napoleon in. 
 and the communist insurrection. The commune movement was but the 
 natural result of a popular uprising against centralized power. But it went 
 to the other extreme, and contemplated, without a national compact, a league 
 of 36,000 independent communes. Their declared scheme was this : 
 "France shall no» longer be one and indivisible, empire or republic; she 
 shall form a federation, not of small states or provinces, but of free cities, 
 linked together onh/ so far as shall be consistent with the most absolute de- 
 centralization and local government." {Journal Officiel de la Commune, 
 April, 1871.) But a scheme which made cities, and not the nation, prac- 
 tically the sovereign, is radically de:(ective, and open to all the objections 
 which M. Mazzini has so forcibly pointed out against it. (Contemporary 
 Eeview, 1871 : reprinted Littell's Living Age, July, 1871, p. 113.) 
 
 " Barrett •«. Brooks, 31 Iowa, 144, 151. By constitutional provision in 
 New York, "It belongs, exclusively, to the local power to fill the offices, 
 either by election or appointment, as the legislature may direct." Met. 
 Bd. Health v. Heister, 37 N. Y. 661, 667. See also constitution of Illinois, 
 art. IX. sec. 5: construed, Peoples. Chicago, 51 HI. 17, 1869. 
 
 Speaking of the power of creating debts and expending money by the 
 city of Philadelphia, under the Consolidation Act of 1854, in a case where 
 it was held that this power had been invested in the legislative department, 
 and not with subordinate officers, Agnew, J., observed: "It is manifest that 
 the city government is founded, in its leading tho&ght, upon the American 
 idea of a popular representative government, its immediate prototype being 
 the form of the state goverriment. The right of supervision and control is 
 therefore vested in the councils as the immediate representatives of the 
 popular will, which exerts and enforces its determining power by means of 
 constantly recurring elections. Subject to this primary power the affairs of 
 this people, great in numbers, wealth, intelligence, and influence, are con- 
 ducted by departments and officers." Philadelphia ». ]^lanigen, 47 Pa. St. 
 31, 1864. 
 
 "What," inquired the Abbe Sieyes, in a book which gave a powerful 
 impulse to the public mind at the beginning of the French revolution of 
 1789 — "What is the tiers etatf" And he answered, "Nothing." What 
 ought it to be ? "Everything." Thiers's French Rev. vol. I. p. 37; Guizot 
 Hist. Civ. Lect. Vll. On this popular foundation rests not only our na- 
 
Oh. LJ introductory HISTORICAL VIEW. gg 
 
 sion of the right to vote- for oflacers, to all who are to be 
 affected by their action, are due that familiarity with pub- 
 lic affairs and that love of liberty and regard for private 
 rights and property, which are characteristic of the best 
 government in Europe, Grreat Britain, and the best in 
 America, the United States.' 
 
 But the picture is not without its shadows. There are 
 evils either inherent in our municipal corporations, or which 
 so generally attend their administration as to favor the 
 notion that they are inherent, which have greatly detracted 
 from their value. Some of these may be briefly indicated : 
 1. Men the best fitted by their intelligence, business experi- 
 enpe, capacity, and moral character, for local governors or 
 counsellors, are not always, it is feared it ipight be added, 
 are not generally, chosen. 3. Those chosen are too apt to 
 merge their indimdual conscience in their corporate capac- 
 ity. Under the shield of their corporate character men 
 daily do acts which they would never do as individuals, 
 
 tional government, but as well all of our state governments and municipal 
 institutions. 
 
 ' After alluding to the antiquity of this system in England, Mr. Justice 
 Brown, in the important case of The People v. Draper (15 N. T. 533, 562), 
 says : " Wherever the Anglo-Saxon race have gone, wherever they have 
 carried their language and laws, these communities,, each with a local ad- 
 ministration of its own selection, have gone with them. It is here that they 
 have acquired the habits of subordination and obedience. to the laws, of 
 patient endurance, resolute purpose, and knowledge, of civil government, 
 which distinguish them from every other people. Here have been the seats 
 of modern civilization, the nurseries of public spirit, and the centres of 
 constitutional liberty. They are the opposites of those systems which col- 
 lect all power at a common centre, to be wielded by a common will, and to 
 effect a given purpose, which absorb all political authority, exercise all its 
 functions, distribute all its patronage, repress the public activity, stifle the 
 public voice, and crush out the public liberty." "The city corporations," 
 remarks a modem jurist, "which have grown up in modern times, are of 
 infinite advantage to society ; they bind men more closely together than 
 does any other form of political association. But that which most remark- 
 ably distinguishes them from the close corporations which formerly existed, 
 is the general spirit of freedom which has been breathed into them. More 
 especially is this the case with town corporations in America, which are as 
 different from those of England as the latter are from similar corporations 
 in Scotland and Holland." Per Orimhe, J., Rosebaugh v. Baffin, 10 Ohio, 
 81, 36 ; see also State v. Noyes, 10 Fost. (N. H.) 393. 
 
86 MUNICIPAL CORPORATIONS. [Oh. L 
 
 The pubKo, as if to retaliate, act towards corporations in tlie 
 same spirit. The notion, though not avowed, is by far too 
 much acted upon, that all that can be obtained from a pub- 
 lic, or, indeed, from any corporation, is legitimate spoil. 
 Against these, men usually honest and fair in their deal- 
 ings, do not scruple to make demands which they would 
 never make against an individual.' 3. As a result, the ad- 
 ministration of the affairs of our municipal corporations is 
 too often both unwise and extranasffbnt. 
 
 Municipal corporations are institutions designed for the 
 local government of towns and cities ; or, more accurately, 
 towns and cities, with their inhabitants, are, for purposes of 
 subordinate local administration, invested with a corporate 
 character. To clothe them with powers to accomplish 
 purposes which can better be left to private enterprise, 
 is unwise. Their chief function should be to regulate 
 and govern. To invest them vdth the powers of indi- 
 viduals or private corporatious, for objects not pertain- 
 ing to municipal rule, is to perverc the institution from 
 its legitimate ends, and to require of it duties it is not. 
 adapted satisfactorily to execute. Some of the evU effects 
 of municipal rule have arisen from legislation unwisely 
 conferring upon municipalities, at the suggestion, often, 
 of interested individuals or corporations, powers foreign 
 to the nature of these institutions, and not necessary to 
 enable them to discharge the appropriate functions and 
 duties of municipal administration. Among the most con- 
 spicuous instances of such legislation may be mentioned the 
 power to aid in the building of railways, to incur debts, 
 often without any limit, or any which is effectual, and to 
 issue negotiable securities. The result has too often been 
 that debts are incurred so large that they press with disas- 
 trous weight on the municipality and its citizens. Extraor- 
 dinary and extra-municipal powers h^/ve been too often 
 
 ' These effects are not confined to this side of the Atlantic. "It is a 
 familiar fact," says Mr. Herbert Spencer, " that the corporate conscience is 
 ever inferior to the individual conscience — that a body of men will commit, 
 as a joint act, that which every individual of them would shrink from, did 
 he feel personally responsible." Essays, No. VII. p. 261, Am Ed. 1865 ; and 
 see 11. Essays, No. V. for a description — perhaps too*highly colored — of 
 the unsatisfactory working of the English reformed municipal corporations. 
 
Ch. I.] mTRODUOTORY HISTORICAL TTEW. 87 
 
 iucauiiously or unwisely granted, and the charters or con- 
 stituent acts carelessly worded and loosely construed. The 
 remedy suggested by experience consists, in part, in con- 
 stitutional provisions prohibiting the granting of special 
 charters^ and requiring all municipal corporations to be or- 
 ganized under general laws. The legislature should also be 
 prohibited from allowing municipal corporations to engage 
 in extra^municipal projects, or to incur debts or levy taxes 
 for such purposes. The powers granted to such corporations, 
 and especially the power to levy taxes, should be more care- 
 fully defined and limited, and should embrace such objects 
 only as are necessary for the health, welfare, safety, and con- 
 venience of the inhabitants.' The amount of indebtedness 
 that may be incurred, even for municipal purposes, should 
 also be limited beyond the power to be evaded. 
 
 Experience has also demonstrated the necessity of more 
 power and more responsibility in the executive head of our 
 municipal institutions. Too often the duties of the mayor 
 or executive officer ar^ only nominal, and to these he gives 
 but little attention — a natural result of his want of import- 
 ance, and of his inabUity to control the administration of 
 municipal afl^irs. If the office be clothed with dignity and 
 real authority ; if the mayor shall be invested with the 
 veto power ; if he shall have the sole right to appoint and 
 
 ' The great increase of corruptions in municipal bodies, growing out of 
 the ability to create, by taxation, a. fund which may be squandered, has 
 made many thinking men doubt the wisdom of endowing them with the 
 power;" Mr. Justice Miller, in Rusch ®. Des Moines County, 1 Woolw. 0. C. 
 313, 333, 1868. And uote the striking observations of Mr. Justice Agnew, 
 on the abuses which attend the administration of finances by municipal 
 bodies and officers, and the too prevalent frauds in the procurement and 
 execution of public contracts; Philadelphia «. Flanigen, 47 Pa. St. 31; 
 Hague V. Philadelphia, 48 lb. 537. In the case first cited, the suggestion of 
 the text as to the wisdom of strictly guarding and limiting the power to 
 create debts, is well enforced by this learned judge. He truly says : "A 
 , valid contract is uncontrollable ; demanding its performance at the hands of 
 the judiciary, and calling to their aid the whole power of the government. 
 If an appropriation for its payment is not made this year, it must be in the 
 next or some following." The gigantic and astounding frauds and corrup- 
 tion which have been recently revealed (1871) in the local administration 
 of the affairs of the great city of New Tork have awakened public atten- 
 tion to the necessity of more efficient checks upon the misuse of municipal 
 powers. 
 
88 MUNICIPAL C0KP0RATI0N8. [Ch. I. 
 
 the unrestricted power to suspend or remove subordinate 
 officials or heads of departments, then the citizens can 
 justly demand of him that he shall be individually respon- 
 sible for the proper conduct of the concerns of the munici- 
 pality, and if grievances exist, they will know to whom to 
 apply for remedy, or upon whom to fix the blame.' 
 
 Municipal corporations, as they exist in this country, it 
 may be further suggested, are of exceedingly complex 
 character. I^ot here to allude to the legal complexity which 
 arises from their corporate nature, we may mention that 
 which arises from the exceedingly diverse character of the 
 
 ' Extended observation of the workings of our municipal institutiona 
 has satisfied the author that the views expressed in the text are sound, and 
 he is glad to find them confirmed by the Hon. Josiah Quincy in his " Muni- 
 cipal History of Boston," published in 1853. Mr. Quinoy was mayor of 
 the city of Boston from 1833 to 1838, inclusive, and his opinions are entitled 
 to great respect, not only from his known ability, but large experience in 
 municipal afEairs. It is interesting to observe the striking coincidence of 
 'his views with the recommendations of the "Committee of Seventy," of 
 New York, respecting municipal administration and the importance of 
 efficient executive superintendence, control, and responsibility. Municipal 
 Hist, of Boston, chap. V. And to same effect is Mr. Charles Nordhoffa 
 interesting article in the North American Bemew for October, 1871, entitled, 
 "The Misgovemment of New York, — A Remedy Suggested." This vigor- 
 ous writer sketches the defects in the ordinary municipal charters with a 
 masterly hand, and shows great familiarity with the subject of which he 
 treats. Many of his suggestions may be profitably stndied by the legislator. 
 
 In the Galaxy Magazine for February, 1873, the article just mentioned 
 is reviewed by Mr. Isaac Butts, who contends that the only efficient cure for 
 municipal evils is to assimilate local government to that of private corpora- 
 tions, giving tha real and ultimate control of all municipal affairs except 
 education and the support of the poor, to the property interests of the 
 municipality. He maintains that a " municipality is essentially a moneyed 
 corporation rather than a political community or a diminutive state. " He 
 insists that " the basis of municipal authority should be changed in some- 
 thing like the manner following : 1st. Let every person cast one vote, as at 
 present. 3d. In addition to the above, let every person, corporation, and 
 firm, without regard to, residence or sex, cast one vote, in person or by 
 
 proxy, for every $ for which they respectively were assessed on the 
 
 last general assessment roll of the city. 3d. A plurality of the aggregate 
 vote to elect." 
 
 It may be observed, that in England, under the reformed municipal sys- 
 tem, the right to a voice in municipal management is restricted to occupiers 
 of houses and tax-payers, and yet we have, as we have seen, complaints of 
 municipal extravagance, corruption, and abuse. 
 
Oh. L] mTEODUCTORY HISTORICAL VIEW. 89 
 
 multiform duties which are confided to their agency and 
 management, requiring the delegation of corresponding 
 powers and provisions for their execution. Some of these 
 powers are civil or political, and not pecttUar to the people 
 of the municipality ; others are purely local, of- which some 
 concern all the inhabitants and some affect only, or mainly, 
 the property owners, on whom, exclusively, the burden of 
 their exercise, or administration, falls. In the ordinary 
 mxmicipal charters, the essential diflbrences between these 
 powers have not been regarded, and, in consequence, ade- 
 quate checks upon their abuse have not been provided. 
 
 The general right of suffrage will remain, and, in the 
 author's judgment, ought to remain as extensive in the 
 municipality as in the state, and all schemes of municipal 
 reform based upon restricting it are simply impracticable. 
 But if special or extra-municipal powers be granted, not af- 
 fecting civil, political, or other rights which concern all, but 
 which involve directly the expenditure and payment of 
 money, it is but just that the project should be required to 
 have the support of a majority of those who must pay the 
 expense. 
 
 No small proportion of corruption and abuse in munici- 
 palities has had its source in their authority to make public 
 and local improvements. The power is usually conferred 
 without sufficient care, and the rights of the property owners 
 (often made liable for the whole cost of the improvement or 
 amount of the expenditure) not sufficiently respected and 
 guarded. 
 
 As it is the part of wisdom to organize municipal corpo- 
 rations under general laws, so that defects and abuses, being 
 generally seen and felt, wUl be the more speedily and better 
 remedied by the legislature, so municipal corporations 
 should be shorn of the power to grant special privileges, 
 except under ordinances, general in their character, and 
 which, on equal or fair terms, will make them available to all. 
 
 The courts, too, have duties, the most important of which 
 is to require these corporations, in all cases, to show a plain 
 and clear grant for the authority they assume to exercise ; 
 to lean against constructive powers, and, with firm hands, 
 to hold them and their officers within chartered limits. 
 
 But with all the drawbacks we have mentioned (many of 
 
90 MUNICIPAL CORPORATIONS. [Ch. L 
 
 whicli are remediable) our system of popular municipal organ- 
 izatidn and administration is, beyond controversy, the fairest 
 to the individual citizen, and, on the whole, the most satis- 
 factory in its operations and results of any that has yet been 
 devised. Any other conclusion would be equivalent to ad- 
 mitting that the people are incapable of enlightened, self- 
 government ; that holders of property ought alone to be re- 
 spected, and alone be endowed with political and municipal 
 rights ; that the few should governihe many, and that our 
 representative system, the flower of modern civilization, 
 based upon the equal right of every man to a voice in the 
 local and general government, is a failure. It is not improb- 
 able that we sometimes over-estimate the shortcomings in 
 the practical workings of our municipal system, for the sys- 
 tem is an open one, in which all are interested to bring its 
 abuses into the light of day. The fine observation of Lord 
 Bacon fitly applies: "7%e hest governments are always 
 subject to he like the fairest crystals, wherein every icicle 
 or grain is seen, which in a fouler stone is never per- 
 ceived." 
 
Ch. n.1 CORPORATIONS DEFINBD AND CLASSIFIED. 91 
 
 CHAPTER n. 
 CaEPOEATioKS Defined and Classified. 
 
 § 9a. A corporation is a legal institution, devised to con- 
 fer upon the individuals of which it is composed powers, 
 privileges, and immunities which they would not otherwise 
 possess, the most important of which are continuous legal 
 identity and perpetual or indefinite succession, under the 
 corporate name, notwithstanding successive changes, by 
 death or otherwise, in the corporators or members of the 
 corporation. It conveys, perhaps, as intelligible an idea as 
 can be given by a brief definition to say, that a corporation 
 is a legal person, with a special name, and composed of 
 such members, and endowed with such powers, and such 
 only, as the law prescribes. The most accurate notions of 
 complex subjects come not from definition, but description ; 
 and in the course of the present work we shall describe the 
 class of corporations with which it deals, by their creation, 
 constitution, faculties, powers, duties, liabilities, and pur- 
 poses. Some of the definitions and deductions in the earlier 
 reports amuse by their quaintness, but are without much 
 practical value. "As touching corporations," says Lord 
 Coke, "the opinion of Man wood, chief baron, was this: 
 that they were Invisible, immortal, having no conscience or 
 soul ; and, therefore, no subpoena lieth against them ; they 
 cannot speak, nor appear in person, but by attorney."' 
 
 Chief Justice Marshall's description of a corporation is 
 remarkable for its general accuracy and felicitous expres- 
 sion : ."A corporation is an artificial being, invisible, 
 intangible, and existing only in contemplation of law. 
 Being the mere creature of the law, it possesses only those 
 properties which the charter of its creation confers upon it, 
 either expressly or as incidental to its very existence. These 
 are such as are supposed to be best calculated to effect the 
 
 » 3 Bulst. 333; Willc. Corp. 15. 
 
93 MUNICIPAL CORPOEATIONS. [Ch. H. 
 
 object for wMch it is created. Among the most important 
 are immortalUy [in the legal sense that it may be made 
 capable of indefinite duration], and, if the expression may 
 be allowed, individuality — properties by which a perpetual 
 succession of many persons are considered as the same, and 
 may act as a single individual. They enable a corporation 
 to manage its ow.n affairs, and to hold property without the 
 perplexing intricacy, the hazardous and endless necessity of 
 perpetual conveyances for the mirpose of transmitting it 
 from hand to hand. It is chiefly for the purpose of clothing 
 bodies of men, in succession, with these qualities and 
 capacities, that corporations were invented and are in use. 
 By these means a perpetual succession of individuals are 
 capable of acting for the promotion of the particular object 
 like one immortal being.'" Thus, though the members 
 change, the corporation itself remains, in its legal person- 
 ality, the same, all of its members, past and present, con- 
 stituting, in law, but one person, in the same manner as the 
 Thames, or the Mississippi, is still the same river, though 
 the parts composing it are constantly changing." The above 
 observations are, in general, applicable to all corporations, 
 private as well as public and municipal. 
 
 § 95. Municipal corporations are bodies politic and 
 corporate of the general character above described, estab- 
 lished by law, to share in the ciTdl government of the country, 
 but chiefly to regulate and administer the local or internal 
 affairs of the city, town, or district which is incorporated.* 
 
 ' Dartmouth College «. Woodward, 4 Wheat. 636, 1819. Other defini- 
 tions: 4 Black. Com. 37; 1 Kyd Corp. 13; Grant Corp. 3, 4; Angell & Am. 
 Corp. sec. 1 ; Glover Corp. 3, 6. Willcock declines to define, but describes 
 corporations : Munie. Corp. 15. The last author observes that " A corpora- 
 tion continues the same body politic from its creation to its dissolution, 
 unaltered by the, revolution of ages or the successive changes of its mem- 
 bers, so that it is unnecessary to make grants to them and their successors, 
 or to declare their obligations binding on their successors." Ih. 16 ; Glover, 
 8; Grant, 5; 7 Vin. Abr. 358, 363. 
 
 " Glover, 8 ; 1 Black. Com. 468. 
 
 '."A pody politic," says Lord Coke, "is a body to take in succession, 
 framed as to its capacity by policy, and therefore is called by Littleton (sec. 
 413) a iody politic ; it is called a corporation, or Jxidy corporate, because the 
 persons are made into a body, and are of capacity to take, grant, &c., by a 
 particular name. Viner's Abr. Corp. (a 3). A municipal corporation is also 
 
Ch. n.] CORPORATIONS DEFINED AND CLASSIFIED. 93 
 
 Like other corporations, they must be created by statute. 
 They possess no powers or faculties not conferred upon 
 them, either expressly or by fair implication, by the law 
 which creates them, or other statutes applicable to them. 
 Persons residing in or inhabiting a place to be incorporated, 
 as weU as the place itself, are — both the persons and the 
 •place — indispensable to the. constitution of a municipal cor- 
 poration. Artificial succession, also, is of the essence of 
 such a corporation. Municipal corporations are created 
 and exist for the public advantage, and not for the benefit 
 of their officers or of particular individuals or classes. The 
 corporation is the artificial body created by the law, and not 
 the officers, since these are, from the lowest up to the 
 councilmen or mayor, the mere ministers of the corporation. 
 Even the council, or other legislative or governing body, 
 constitutes, as it has been well remarked, neither the cor- 
 poration, nor in themselves a co|:poration.' It is quite im- 
 possible, in any brief space, to convey an adequate idea of 
 the exact nature and properties of a municipal corporation. 
 There is nothing in the law more complex and abstruse. 
 Although the inhabitants of a place be incorporated, they 
 do not constitute the corporation ; neither, as we have j ast 
 observed, is it constituted by the governiDg body. Not- 
 withstanding Mr. Kyd' s criticism, the corporation is invisi- 
 ble, for, although we may see all the inhabitants, or all of 
 the officers, we do not see the legal body which makes the 
 corporation as we see an army ; but this is a property com- 
 mon to all corporations. An additional complexity in 
 municipal corporations arises out of the various and diverse 
 powers usually conferred, giving them an extremely compo- 
 site character. The primary and fundamental idea of a 
 municipal corporation is an agency to regulate and admin- 
 ister the internal concerns of a locality in matters peculiar 
 
 defined to be " An investing the people of a place with the local govern- 
 ment thereof." Salk. 183. "This latter description," says Mr. Justice 
 Nehon, in the People ®. Morris, 13 Wend. 325, 384, 1835, "is the most 
 appropriate, .and is justified by the history of these institutions, and the 
 nature of the powers with which they were, and are, invested." It is also 
 quoted by CampbeU, 0. J., ifl the People v. Hurlburt, 24 Mich. 44, 1871. 
 ' Reg. v. Paramore, 10 Ad. & El. 286; Reg. ■». York, 2 Q. B. 850; 
 Grant, 357 ; Glover, 4 ; Harrison ®. Williams, 3 Bam. & Cress. 162. 
 
94 MUNICIPAL CORPORATIONS. [Ch. H. 
 
 to the place incorporated, and not common to tlie state or 
 people at large ; but it is tlie constant practice of the states 
 to make use of the incorporated instrumentality, or of its 
 officers, to exercise powers, perform duties, and execute 
 functions not strictly or properly local or municipal in their 
 nature, but which are, ' in fact, state powers, exercised by 
 local officers, within defined territorial limits ; and it is im- 
 portant, as we shall hereafter see, to keep this distinction 
 in mind. In theory, the two classes of powers are distinct ; 
 but the line which separates the one from the other is often 
 very difficult to trace. The point may be illustrated from 
 the English law : If the king incorporate a town, its officers 
 will have no implied power as conservators or justices of 
 the peace ; express words are necessary to confer this 
 power, and when they act in the latter capacity, it is not 
 because they are corporate officers, but because of powers 
 expressly annexed to their corporate offices, and the two 
 capacities remain distinct, although united in the same per- 
 son.' The subject itself will be elsewhere discussed. The 
 name of the municipal corporation, its houndaries, Us 
 officers, its powers, its' duties, and the like, are subjects 
 regulated by legislative enactment, and will be hereafter 
 noticed. 
 
 § 10. Corporations intended to assist in the conduct of 
 local civil government are sometimes sijledi political, some- 
 times public, sometimes civil, and sometimes municipal, and 
 certain kinds of them with very restricted powers — quasi 
 corporations — ^all these by way of distinction from private 
 corporations. All corporations intended as agencies in the 
 administration of civil government, are public, as distin- 
 guished from private corporations. Thus an incorporated 
 school-district, or county, as well as city, is a public corpo- 
 ration ; but the school-district or county, properly speak- 
 ing, is not, while the city is, a municipal corporation. All 
 municipal corporations are public bodies, created for civil 
 or political purposes ; but all civil, political or public cor- 
 porations are not, in the proper use of language, municipal 
 corporations. Tlie phrase Municipal Corporations, in the 
 
 ' 1 Eyd, 337 ; People c. Hurlburt, 24 Mich. 44, 1871, per GampbeU, C. J. 
 8. C, 6 Am. Law Rev. 376. 
 
Ch. n.] C0RP0KATI0N8 DEFINED AND CLASSIFIED. 95 
 
 contemplation of this treatise, has reference to incorporated 
 milages, towns and cities, as distinguished from other pub- 
 lic corporations, such as counties and quasi corporations.' 
 
 ' Hamilton Co. v. Mighels, 7 Ohio St. 109, 1857. 
 
 The distinction, as it is usually drawn between m«mMipai! corporations 
 proper, such as chartered towns and cities, or towns and cities voluntarily 
 organized under general incorporating acts, such as exist in a number of 
 the states, and involuntary guad corporations, such as counties, is clearly 
 set forth in the carefully prepared opinion of BrinkerlhOff, J., delivering the 
 judgment of the Supreme Court of Ohio in the case just citad. " Muni- 
 cipal corporations proper " he observes, " are called into existence, either 
 at the direct solicitation or by the free consent of the persons composing 
 them, for the promotion of their own local and private advantage and con- 
 venience." On the other hand, "Counties are at most but local organiza- 
 tions, which, for the purposes of civil administration, are invested with a 
 few functions characteristic of a corporate existence. They are local sub- 
 divisions of a state, created by the sovereign power of the state, of its own 
 sovereign will, without the particular solicitation, consent, or concurrent 
 action of the people who inhabit them. The former (municipal) organiza- 
 tion is asked for, or at least assented to, by the people it embraces ; the 
 latter organization (counties) is superimposed by a sovereign and paramount 
 authority. 
 
 A municipal corporation proper is created mainly for the interest, ad- 
 vantage, and convenience of the locality and its people ; a county organisa- 
 tion is created almost exclusively with a view to the policy of the state at 
 large, ^or purposes of political organization and civil administration, in 
 matters of finance, of education, of provision for the poor, of military or- 
 ganization, of the means of travel and transport, and especially for the 
 general administration of justice. With scarcely an 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 poUcy." The learned judge, adverting 
 to the case in hand, in which it was sought to make the county liable in 
 damages to one who suffered a personal injury from the neglect of the 
 commissioners of the county in the discharge of their official duties, says : 
 " But, it is said, the members of the board of county commissioners are 
 chosen by the electors of the county, and hence the board is to be regarded 
 as the agents of t?ie county, for whose torts, in the performance of official 
 duties, the county ought to be responsible. True, the people of the 
 county elect the board of county commissioners; but they also elect the 
 sheriff and treasurer of the county. Are the people of the county, there- 
 fore, responsible for the malfeasances in office of the sheriff or for the offi- 
 cial defalcations of the county treasurer ? This will not be pretended. 
 ***** "vye cannot but think that county commissioners are not 
 agents or representatives of the county in any such sense or manner as to 
 render the people of the county justly answerable for their neglect ; even if 
 
96 MUNICIPAL CORPORATIONS. [Oh. II. 
 
 1 10a. Civil corporations are oi different grades or classes, 
 but in essence and nature they jnust all be regarded as public. 
 The school-district or the road-district is invested witb a cor- 
 porate character the better to perform witbin and for the local- 
 ity its special function, which is indicated by its name. It ia 
 but an instrumentality of the state, and the state incorporates 
 it that it may the more effectually discharge its appointed 
 duty. So with counties. They are involuntary, political, 
 or civil divisions of the state, created by general laws to aid 
 in the administration of government. Their powers are not 
 
 the neglect be such as would create a civil liability against a natural person 
 or a municipal or private corporation." "It is," he adds, "undoubtedly 
 competent for the legislature to mate the people of a county liable for the 
 ofBcial delinquencies of the county commissioners; but this has not yet 
 been done, and we think such liability cannot be derived from the relations 
 of the parties, either on the principles or the precedents of the common law." 
 Followed, Jacobs v. Hamilton Co., 4 Fisher Pat. Oases, 81, 1863. See also 
 Soper V. Henry Co. , 36 Iowa, 364, 1868 ; Treadwell «. Commissioners, 11 Ohio 
 St. 190; Angell & Ames, sees. 14, 33, 34,35. Post, sees. 32, 39, 761,'763. 
 
 Speaking of the powers of school-districts and their oflEloers, Bell, J., in 
 Harris v. School District, 8 Foster, N. H. 58, 61, 1853, observes: " These 
 little corporations have sprung into existence within a few years, and their 
 corporate powers and those of their ofScers are to be settled by the con- 
 structions of the courts upon a succession of crude, unconnected, and often 
 experimental, enactments." "School-districts," he further remarks^^refer- 
 ring to those in New Hampshire — "are quasi corporations of the most 
 limited powers known to the laws. They have no powers derived from 
 usage. They have the powers expressly granted to them, and such im- 
 plied powers as are necessary to enable them to perform their duties, and 
 no more. Among them is the power to vote money for specified purposes, 
 and the power to appoint Committees ' to carry their votes ' relative to 
 those purposes 'into effect.' The district may. clearly, by their votes for 
 building and repairing school-houses, limit the expense to a definite 
 sum ; and they may limit the precise repairs or the exact description of the 
 school-house to be built, and when this is done the committee (appointed 
 to ' carry the votes into effect ') cannot bind the district by exceeding those 
 limits. These committees are special agents without any general powers 
 over the affairs of the district, and their powers are confined to a special 
 purpose ; and no inference can be drawn from the general nature of their 
 powers. The liability of such powers to abuse, furnishes the strongest 
 arguments against their existence," as a committee might load the district 
 with debts, though the district had expressly limited their authority. See 
 also Wilson ». School Dist., 33 N. H. 118, 1855 ; Foster «. Lane, 10 Foster, 
 305, 315; Giles ». School Dist., 11 Fost. 304. Scales®. Chattahoochee 
 County, 31 Geo. 335, 1870. 
 
Ch. n.l CORPORATIONS DEFINED AND CLASSIFIED. 97 
 
 Timform in all the states, but these generally relate to the 
 administration of justice, the support of the poor, the 
 establishment and repair of highways, all of which are 
 matters of state, as distinguished from local concern. 
 They are purely auxiliaries of the state ; and to .the general 
 statutes of the state they owe their creation, and the statutes 
 confer upon them all the powers they possess, prescribe all 
 the duties they owe, and impose all liabilities to which they 
 are subject. Considered with respect to the limited number 
 of their corporate powers, the bodies above named rank low 
 down in the scale or grade of corporate existence; and 
 hence have been frequently termed quasi corporations. 
 This designation distinguishes them on the one hand from 
 private corporations aggregate, and on the other from muni- 
 cipal corporations proper, such as cities or towns acting under 
 charters, or incorporating statutes, and which are invested 
 with more powers and endowed with more functions and a 
 larger measure of corporate life. It will appear hereafter 
 that many of the courts have drawn a marked line of dis- 
 tiuction between municipal corporations and quasi corporar 
 tions, in respect to their liability to persons injured by their 
 neglect of duty ; holding the former liable, without an ex- 
 press statute giving the action, in cases in which the latter 
 are not considered liable unless made so by express legisla- 
 tive enactment. One reason often given for the distinction 
 is, that with respect to local or municipal powers proper (as 
 distinguished from those conferred upon the municipality as 
 a mere agefit of the state) the ii^habitants are to be regarded 
 as having been clothed with them at their request and for 
 their peculiar and special advantage, and that as to such 
 powers and the duties springing out of them, the corpora- 
 tion has z, private character, and is liable, on the same prin- 
 ciples and to the same extent as a private corporation. 
 This subject will be fully examined in its appropriate place, 
 and is only alluded to here for the purpose of noting the 
 distinction which has been made between municipal and 
 other public corporations. But that a municipal corpora- 
 tion is in any just view a private corporation, or possesses 
 a double character, the one private and the other public, 
 although often asserted, is only true, if true at all, in a 
 very modified, if not inaccurate, sense.. In their nature 
 7 
 
98 MUOTCrPAL CORPOEATIONS. [Ch. IL 
 
 and purposes, municipal corporations, however numerous 
 and complex their powers and functions, are essentially 
 public. 
 
 § 11. The New England Town.— In the New England 
 states, public corporations have, in many reipects, a pecu- 
 liar character. In some instances, there are acts incorpo- 
 rating cities, giving them defined powers and providing a 
 special mode of government ; bufreven then the general laws 
 in relation to towns, when not inconsistent with the provisions 
 of the local act, ordinarily apply to the places specially in- 
 corporated. In the New England town proper, the citizens 
 administer the general affairs in person, at the stated cor- 
 porate or town meetings, and through officers elected by 
 themselves." The towns are charged with the support of 
 schools, the relief of the poor, the laying out and repair of 
 highways, and are empowered to preserve peace and good 
 order, maintain internal police, and direct, and manage 
 generally, in a manner not repugnant to the laws of the 
 state, their prudential affairs ; and for defraying these and 
 all necessary and lawful charges, they may levy and collect 
 taxes. Speaking generally, the JSTew England towns are 
 organized after the same model ; and an exact notion of 
 their character will be best obtained by reference to the 
 leading statutory provisions in Massachusetts respecting 
 them, given in the note." The town in New England, while 
 
 'In towns, according to the use of the word in the New England states 
 and some of the others, the citizens administer the general affairs in person, 
 in town meetings. In cities, this is done by means of a mayor, aldermen, 
 and council, to whom the citizens entrust most of the legislative and ex- 
 ecutive powers of the place. State v. Glennon, 3 Eh. Is. 376, 378 per 
 Staples, C. J. In New England, "town" is a generic term, and it will 
 embrace cities, unless the contrary appears in other parts of the statute to 
 have been the intent of the legislature. lb. 
 
 ' Summary of the leading statutory provisions in Massachusetts respect- 
 ing towns : 
 
 \. As to powers and duties.— Thej are " bodies corporate, with all the 
 powers heretofore exercised by them, and subject to all the duties to which 
 they have heretofore been subject." Genl. St. 1860, ch. XVIII. sec. 1. 
 "Towns may, in their corporate capacity,'sue and be sued in the name of 
 the town." li. sec. 8. They may hold real estate and personal property 
 "for the public use of the inhabitants," and also "in trust for the support 
 
Ch. II.] CORPOEATIONS DEFINED AND CLASSIFIED. 99 
 
 somewhat anomalous, has some of the usual powers of a 
 regular municipal corporation, and some of the characteris- 
 tics of the county organizations in many of the states. The 
 New England town affords, perhaps, an example of as pure 
 a democracy as anywhere exists. All of the qualified in- 
 habitants meet and directly act upon and manage, or direct 
 the management of, their own local concerns. This form of 
 government was adopted at a very early period, and is 
 firmly adhered to and deeply cherished by the people of the 
 New England states. The result has demonstrated how well 
 adapted it is to promote the well-being of the . communities 
 that for so long a space of time have thus governed them- 
 selves. The remarkable growth and prosperity of the New 
 England states, not the most favored by nature, and the in- 
 telligence and character of the people, are facts known to 
 all ; and it is not strange that these results should be attrib- 
 
 of schools and the promotion of education within the limits of the town.' ' 
 n. sec. 9. They may make contraaU necessary and convenient for the 
 exercise of their corporate powers," and may dispose of their corporate 
 property. It. sees. 8, 9. "They may, at legal meetings, grant and vote 
 such sums as they judge necessary, for the following purposes : For the 
 support of town sehooU; for the relief, &c., and employment of the poor ; 
 for the laying out and discontinuing and repair of highways ; for procuring 
 the writing and publishing of town histories; tot hirial grounds ; for encour- 
 aging the destruction of noxious ardmals ; for all other necessary charges aris- 
 ing therein." Ih. sec. 10. "May make necessary ly-laws, not repugnant 
 to the laws of the state, for directing and managing the prudential aflEairs, 
 preserving the peace and good order, and maintaining the internal police 
 thereof." ^6. sec. 11. But such by-laws must, before taking effect, be 
 approved by the Superior Court, or, in vacation, a judge thereof. lb. sec. 
 14. They are binding upon all within the limits of the town, strangers as 
 well as inhabitants. IK sec. 15. 
 
 2. Corporate or Town Meetings. — " Every male citizen of twenty-one years 
 of age and upwards (except paupers, &c.), who has resided within the state 
 one year, and within the town la which he claims the right to vote, six 
 months, and who has paid a state or county tax, &c., shall have a right to 
 vote upon all questions at all meetings for the transaction of town affairs, 
 and no other person shall be entitled to vote." i&. sec. 19. "The annual 
 meeting of each town shall be held in February, March, or April; and 
 other meetings at such time as the selectmen may order." i5. sec. 30. 
 Warrants issue for all meetings, under the hands of the selectmen, directed 
 to constables or others, who notify such meeting in the manner prescribed 
 by the by-laws or vote of the town. lb. sec. 31. "The warrant shall ex- 
 press the Ume and place of the meeting, and the siibjeets to be there acted 
 upon ;" * * * " and nothing acted upon shall have a legal operation 
 
100 MUNICIPAL OORPOKATIONS. [Oh. H. 
 
 uted in a large measure, to this system of local popular gov- 
 ernment. But, in the course of time, many of the towns, or 
 portions thereof, grew to be large and populous, and the 
 system of meetings of the electors, in their original capacity, 
 became inconvenient and almost impracticable. When the 
 population of a town or place exceeds 10,000 or 13,000 
 persons, the need for the representative system is urgently 
 felt. Accordingly, in the New England states, there are now, 
 in addition to towns, a large numUfer of incorporated cities, 
 with charters or constituent statutes, organized upon the 
 usual representative model, with a legislative or governing 
 body, and an executive head and subordinate oflBlcers. The 
 people of the large city of Boston, in particular, were wedded 
 to the town system, and struggled long against the change to 
 the representative plan ; and five successive times between 
 
 unless the subject matter thereof is contained in the warrant." lb. sec. 33. 
 If selectmen unreasonably refuse to call a meeting, any justice of the peace 
 may do so upon the application of ten or more legal voters of the town. 
 Tb. sec. 33. Provision is made for moderating and conducting the meet- 
 ing, lb. sees. 35-30. Town offices are elected at the annual meeting, who 
 serve for one year, and until others are chosen and qualified. These con- 
 sist of selectmen, assessors, treasurer, constables, who are ex-offido collect- 
 ors unless others be specially chosen; field drivers, fence viewers, surveyors 
 of lumber, measurers of wood, unless selectmen appoint, "and all other 
 usual town officers." lb. sec. 31. Then follows a variety of provisions re- 
 specting the duties of these several officers, and the manner of their per- 
 formance. In addition, there are acts incorporating and establishing cities. 
 "The laws in relation to towns, where not inconsistent with the general oi 
 special provisions of the acts establishing cities, apply to them ; and cities 
 are subject to the liabilities, and city councils have the j)Owers of towns. 
 The mayor and aldermen shall have the powers and be subject to the lia- 
 bilities of selectmen, &c., if no other provisions are made in relation 
 thereto." General St. 1860, ch. XIX. 166. "The marked and characteris- 
 tic distinction between a town organization (in Massachusetts) 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, under a city 
 government, this is all done by their representatives." Per Shaw, 0. J., in 
 Warren «. Charlestown, 3 Gray, 84, 101. As to the origin mid power of 
 towns in Massachusetts, consult Commonwealth v. Roxbury, 9 Gray, 451, 
 1857, opinion of Shaw, C. J., 476, and the valuable note- of Mr. (since Judge) 
 Gray, pp. 503, 538 ; Quincy's Munic. Hist, of Boston, ch. I. ; ante, chapter I. 
 Towns were not expressly authorized to me and be sued until 1694, nor for- 
 mally incorporated until 1785. JJ. 9 Gray, 511, note "G;" 3 Dane's Ab. 
 698; Willard v. Newburyport, 13 Pick. 337, 331; Spauldinga. Lowell, 33 
 Pick. 77, 78. Post, sec. 137, note. 
 
Ch. n.] CORPORATIONS DEFINED AND OLASSIFIED. 
 
 1784 and 1821 rejected well-considered schemes for a city 
 government. The town continued to be governed by meet- 
 ings of the electors en masse, acting through boards and 
 officers, until the place had forty thousand inhabitants, of 
 whom seven thousand were qualified voters. In 1823, how 
 ever, the legislature, at the desire of a majority of the voters, 
 granted the place a city charter, by which it was provided 
 that the control of its affairs should be in a mayor and city 
 council. After this, other towns, from time to time, made 
 the change from the town to the city plan ; so that, as be 
 fore observed, we have in the New England states both 
 modes of local administration. The town system is the 
 general one ; the city, or representative system, is the ex- 
 ceptional one, and is confined to places of compact popula- 
 tion and considerable size.' 
 
 • No city was incorporated in Massachusetts until after the amendment 
 of the constitution of that state in 1830. Per SAaio, 0. J., in Warren v. 
 Charlestown, 3 Gray, 84. After referring to the previous attempts in 1784, 
 1785, 1791, 1804, and 1815, to change the town goyernment of Boston, 
 Mr. Josiah Quincy, in his Municipal History of Boston, p. 38, continues : 
 " In 1831, the impracticability of conducting the municipal interests of the 
 place, under the form of town government, became apparent to the inhabi- 
 tants. With a population upwards of forty thousand, and with seven 
 thousand qualified voters, it was evidently impossible calmly to deliberate 
 and act. When a town meeting was held on any exciting subject, in 
 Faneuil Hall, those only who obtained places near 'the moderator could 
 even hear the discussion. A few busy or interested individuals easily ob- 
 tained the management of the most important affairs, in an assembly in 
 which the greater number could have neither voice nor hearing. When 
 the subject was not generally exciting, town meetings were usually com- 
 posed of the selectmen, the town oflScers, and thirty or forty inhabitants. 
 Those who thus came were, for the most part, drawn to it from some offi- 
 cial duty or private interest, which, when performed or obtained, they gen- 
 erally troubled themselves but little, or not at all, about the other business 
 of the meeting. In assemblies thus composed, by-laws were passed, taxes, 
 to the amount of one hundred or one hundred and fifty thousand dollars, 
 voted, on statements often general in their nature, and on reports, as it re- 
 spects the majority of voters present, taken upon trust, and which no one 
 had carefully considered except, perhaps, the chainnan. In the constitu- 
 tion of the town government there had resulted, in the course of time, from 
 exigency or necessity, a complexity little adapted to produce harmony in 
 action, and an irresponsibility irreconcilable with a wise and efficient con 
 duct of its afiFairs. On the agents of the town there was no direct check oi 
 control ; no pledge for fidelity but their own honor and sense of character. 
 The prosperity of the town of Boston, under such a form of g( vernment; 
 
103 MUNICIPAL CORPORATIONS. [Ch. H 
 
 § 13. The character of towns in New England, and in 
 what respects they differ from English Municipal Cor- 
 
 the few defalcations -whicli had occurred; the frequent, and often, for 
 years, uninterrupted, re-election of the same members to the oflBciating 
 boards, are conclusive evidence of the prevailing high state of morals and 
 intelligence among the inhabitants." After mentioning the different boards 
 among which the executive power was divided, and which acted independ- 
 ently of each other, and which were invested with the expending power, 
 and, in effect, with exercise of the whole"power of taxation, Mr. Quincy 
 proceeds : " A conviction of the want of safety and of responsibility in a 
 machine thus complicated and loosely combined, became, at length, so 
 general that the inherited and inveterate antipathy to a city organization 
 began perceptibly to diminish. About this time, also, one of the most 
 common and formal objections to a city organization was removed. The 
 constitution of Massachusetts, which was passed in 1780, contained no 
 express authority to establish a city organization; and, in every attempt to 
 change that of the town, it never failed to be zealously contended that the 
 legislature of the icommonwealth possessed no such power. But by the 
 amendments to the constitution, made by the convention of 1820, and 
 adopted by the people, this power was expressly recognized. The ques- 
 tion, therefore, now stood on its own merits, and independent of constitu- 
 tional objections. The debates, also, which occurred in this convention,, 
 had a tendency to open the eyes of the inhabitants to their own interest^ 
 and to allay some of the long-cheiished prejudices against a city organiza- 
 tion." In 1831 the people voted to make the change, and measures were 
 immediately taken to obtain the sanction of the legislature. The legisla- 
 ture, on the 23d day of February, 1822, passed "An act establishing the' 
 city of Boston," commonly called "the city charter." The following is a 
 brief outline of the principal features of this charter, taken from Quincy's 
 Municipal History of Boston, p. 41 : 1. The title of the corporation to be, 
 " The City of Boston." 3. The control of all its concerns is vested in a 
 mayor, a board of aldermen, consisting of eight, and common council, of 
 forty-eight inhabitants, to be called, when conjoined, " The City Council." 
 
 3. The city to be divided into twelve wards. The mayor and aldermen 
 and common council to be>' chosen annually, by ballot, by and from inhab- 
 itants ; four of the common council from and by those of each of the wards 
 
 4. The city clerk to be chosen by the city council. 5. The mayor to receive 
 a salary. His duty, to be vigilant and active in causing the laws to be 
 executed ; to inspect the conduct of all subordinate officers ; to cause care- 
 lessness, negligence, and positive violation of the laws to be prosecuted 
 and punished; to summon meetings of either or both boards; to communi 
 cate and recommend measures for the improvement of the finances, the 
 police,, health, security, , cleanliness, comfort, and ornament of the city. 
 6. The mayor and aldermen are vested with the administration of the 
 police and executive power of the corporation generally, and with specific 
 enumerated powers. 7. All other powers belonging to the corporation are 
 vested in the mayor, aldermen, and common council, to be exercised by 
 conciurent vote. Porf, sec. 137, note. 
 
Ch. n.] CORPORATIONS DEFLNJBD A.ND CLASSIFIED. 103 
 
 porations, existing by prescription or special charter, prior 
 to the legislation by parliament in 1835, before mentioned,' 
 and the care to be observed in applying the English cases 
 relating to such corporations to municipal corporations in 
 this country, are well set forth by the learned Chief Justice 
 Perley, in delivering the opinion of the Supreme Court of 
 New Hampshire, in an important case to which we shall 
 again have occasion to allude.' He says: "It is to be 
 observed that municipal corporations in England are broadly 
 distinguished in many important respects from towns in 
 this and the other New England states. There is no uni- 
 formity in the powers and duties of English municipal 
 corporations. They were not created and established under 
 any general public law, but the powers and duties of each 
 municipality depended upon its own individual grant or 
 prescription. Their corporate franchises were held of the 
 crown by the tenure of performing the conditions upon 
 which they had been granted, and were liable to forfeiture 
 for breach of the conditions. They indeed answered certain 
 public purposes, as private corporations do which have 
 public duties to perform, and some of them exercised politi- 
 cal rights. But they are not like towns (with us) general, 
 political and territorial divisions of the country, with uni- 
 form powers and duties, defined and varied, from time to 
 time, by general legislation. Towns (in New England) do 
 not hold their powers ordinarily under any grant from the 
 government to the individual corporation ; or by virtue of 
 any contract with the government, or upon any condition, 
 express or implied. They give no assent in their corporate 
 capacity to the laws which impose their public duties or fix 
 their territorial limits." And referring to the case then 
 before the court, he added : "In all that is material to the 
 present inquiry, municipal corporations in England bear 
 much less resemblance to towns in this country than to 
 private corporations which are charged with the perform- 
 ance of public duties, and for these reasons the English 
 authorities on the subject are but remotely applicable to 
 the present case." 
 
 ' Ante, chap. I. ; post, chap. in. 
 
 » Eastman ». Meredith, 36 N. H. 284, 290, 1858. 
 
104 MTINICIPAL CORPORATIONS. [Ch. H. 
 
 § 12, The distinctive character of the New England 
 towns, and particularly the limited nature of their powers, 
 wiU be further seen by a brief glance at the course ol 
 judicial decisions with respect- to their authority to make 
 contracts and to obtain revenue. Money can only be raised 
 by them for the purposes expressed in the statute, and for 
 expenses incident to such purposes. The power of the 
 majority is wisely limited by law to the object and cases 
 which are clearly provided for alld defined by statute.' 
 
 ' Stetson V. Kempton, 13 Mass. 373, 1816; Parsons «. Goshen, 11 Pick. 
 396, 1831. "This limitation," says Mr. Justice WUde, with great truth, 
 in the case last cited, "upon the power and authority of towns to enteif 
 into contracts and stipulations, is a wise and salutary provision of law, 
 not only as it protects the rights and interests of the minority of the legal 
 vpters, but. as it may not unfrequently prove beneficial to the interests 
 of the majority, who may be hurried into rash and unprofitable speculations 
 by some popular or delusive excitement, to the influence of which even wise 
 and considerate men are sometimes liable. A town in its corporate capacity 
 will not be bound, even by the express vote of the majority, to the per- 
 formance of contracts or other legal duties, not coming within the scope of 
 the objects and purposes for which they are incorporated." Anthony n. 
 Adams, 1 Met. 384, 386, 1840, per Shaw, 0. J. ; quoted and followed in 
 Vincent «. Nantucket, 13 Cush. 105, 1858. See also Norton ». Mansfield, 
 16 Mass. 48 ; Dill «. Wareham, 7 Met. 438, 1844 (contract by the town, 
 undertaking to transfer the right of taking oysters within its limits). 
 
 Whether towns in Masmelmseits are authorized under the statute to 
 make any contract for the payment of money, which they are not authorized 
 to raise money to discharge l)y a tax on the inhabitants, does not seem to 
 be settled by express adjudication. Bancroft v. Lynnfield, 18 Pick. 566, 
 1836, per Shaw, 0. J. ; Tash a. Adams, 10 Cush. 553, 1853. 
 
 " The inhabitants of every town in this state " — Maine^says Shepley, 
 0. J., in Hooper ». Emery, 14 Maine (3 Shep.) 375, 1837; "are declared to 
 be a body politic and ooi-porate by the statute: but these corporations 
 derive none of their powers from, nor are any duties imposed upon them 
 by, the common law. They have been denominated quasi corporations, and 
 their whole capacities, powers and duties are derived from legislative enact- 
 ments." See also Pittson b. Clark, 15 Maine, 460, 463; Augusta «. Lead- 
 better, 16 Maine, 45, 1839 ; Estes ®. School Dist., 33 Maine, 170, 1871 ; Mitch- 
 ell J!. Rockland, 45 Maine, 496, 504, 1858 ; Salem Mill Dam ». Ropes, 6 Pick. 
 33, 33 ; School Dist. etc. ». Wood, 13 Mass. 193, 1816, per ParTcer, C. J. ; 
 Mower v. Leicester, 9 Mass. 347, 350, 1813. 
 
 Where the legislature has prescribed the purposes for which money may 
 be raised by taxation, it cannot be raised for other and distinct purposes. 
 Nor when it is raised and collected for authorized and proper purposes can 
 it be appropriated to, or expended upon other and different, objects. This 
 would bs to break down and defeat the limitation. Hence towns cannot 
 
Ch. II.] CORPORATIONS DEFINED AND CLASSIFIED. 105 
 
 Thus a town, under a statute which, restricts them to 
 raising money to provide for " the poor, for schools, for the 
 support of public worship, and other necessary charges," 
 cannot raise money, even in the time of war, and when the 
 town is iu immediate danger from the enemy^ for the pay- 
 ment of additional wages to- tfie drafted and enlisted militia, 
 and for oldier purposes of defence. This is not a corporate 
 duty, but the duty of the general government.' Nor can it 
 appropriate money, contract for, or levy a tax to aid in the 
 construction of a road, which, by law, is to be made at the 
 expense of the county, and not the town.' A town may, it 
 is said, raise money to meet ordinary expenditures, such as 
 the payment of officers, the support and defence of actions, 
 
 give away or distribute, ^er capita or otherwise, mouey collected by taxation. 
 Hooper o. Emery, 14 Maine (2 Shep.) 375, explaining Ford v. Olough, 8 
 Greenl. 334 ; Davis v. Bath, 17 Maine, 141, 1840 ; Pease v. Cornish, 19 Maine 
 (1 Appl.) 191,1841; Stetsons. Kempton, 13 Mass. 273; Dillingham «. Snow, 
 
 5 Mass. 547; Spauldinga. Lowell, 23 Pick. 71,1830; "Woodbury «. Hamilton, 
 
 6 Pick. 101 ; Cooley ®. Granville, 10 Cush. 56. 
 
 The Vermont statute respecting the powers of towns is nearly a tran- 
 script of that of Massachusetts. The Supreme Court of Vermont approves 
 of the exposition of the statute given by the Supreine Court of Massachusetts 
 in Willard v. Newburyport, 12 Pick. 230; Allen v. Taunton, 19 Pick. 485; 
 Torry v. Milbury, 21 Pick. 64 ; Spaulding i>. Lowell, 23 Pick. 71 ; Hardy v. 
 Waltham, 3 Met. 163, per Isham, J., in Van Sicklen v. Burlington, 27 
 Verm. (1 Wms.) 70. For discussion of powers and duties of selectmen, ani 
 digest of previous decisions in Weio Hampshire, see Carleton v. Bath, 3 'Post. 
 (N. H.) 559. Have no general authority to bind the town by contract. 
 Andover v. Grafton, 7 N. H. 300. Btit are confined to such acts as are 
 necessary to the discharge of their duties. Sanborn ». Deerfield, 3 N. H. 
 253. Cannot, ex-offldo, adjust controversies or suits, or release a cause of 
 action. Carlton v. Bath, 3 Poster, 559. May indemnify town officers in 
 proper cases. 12 N. H. 378. But there is no promise implied in law against 
 a town to indemnify selectmen in any case, for damages which they have 
 been compelled to pay, arising out of the discharge of official duty. 35 
 N. H. 189. Are supposed to be liable to the corporation for gross 
 neglect of official duty. Sanborn 8. Deerfield, 3 N. H. 253, by Woodbury, J. 
 
 ' Stetson «. Kempton, IB Mass. 272, 1816, where the phrase, necessary 
 town charges, is construed by Parker, C. J. ; and see comment of Shaw, C. J., 
 12 Pick. 227, 330, and 33 Pick. 74; and of JJewey, J., in Allen v. Taunton, 
 19 Pick. 485, 487; 18 lb. 566, 10 Cush. 57 ; of Olifford, J., in BurriU v. Bos- 
 ton, 2 Clifford Cir. C. 590, 1867. 
 
 s Parsons v. Goshen, 11 Pick 396, 1831 ; Anthony v. Adams, 1 Met. 284, 
 1840. * 
 
106 MUNICIPAL CORPORATIONS. [Ch. H. 
 
 the expenses incident to discharging duties imposed by law, 
 looking to the safety and convenience of the citizens. Thus 
 it can erect a town or city hall, or market house, but not a 
 theatre, a circus, or any place of mere amusement, nor even 
 a statue or monument, unless in populous and wealthy 
 towns, as suitable ornaments to public buildings or squares.' 
 So towns may provide for the support of a public clock, hay 
 scales, burying ground, wells, reservoirs, and many other 
 like objects which relate to the adfcommodation and conve- 
 nience of the inhabitants, and which have been placed under 
 the municipal jurisdiction of towns by statute or by usage." 
 
 § 14. Although not styled such, each one of the United 
 States, in its organized political capacity, is in effect a pub- 
 lic corporation. Corporations, however, as the term is com- 
 monly used, does not include states, but only derivative 
 creations, owing their existence and powers to the state act- 
 ing through its legislative department. Like corporations, 
 however, a state, as it can make contracts and suffer wrongs, 
 so it may, for this reason, and without express provision, 
 maintain, in its corporate name, actions to enforce its rights 
 and redress its injuries.' But a state is not liable to be sued 
 without its consent ;' although it is not unusual for states, by 
 special enactment, to authorize suits to be brought against 
 them, but, as the permission is voluntary, they may pre- 
 scribe the terms, and, unless it impairs the obligation of con- 
 tracts, may withdraw the consent at pleasure.' A devise to 
 
 ' Stetson «. Kempton, 13 Mass. 272, 1816, per Pwrler, C. J.; Allen v. 
 Taunton, 19 Pick. 485, 487, opinion by Dewey, J., as to power of towns, in 
 Massachusetts; Spalding v. Lowell, 23 Pick. 71, opinion of Sham, 0. J., on 
 same subject. 
 
 ' Willard «. Newburyport, 12 Pick. 227, 280, 1831. 
 
 8 Delafield v. Illinois, 3 Hill (N. Y.), 159, 162; 26 Wend. 193, 1841, af- 
 , firming S. C, 8 Paige, 531; Indiana «. Woram, 6 Hill (N. T.) 33, 1843. 
 These cases hold that states may sue as plaintiff in the state courts ; State 
 V. Delesdenier, 7 Texas, 76 ; People v. Assessors, 1 Hill, 620. The governor 
 of a state, as the head of the executive department, is a corporation sole, 
 and bonds made payable to him may be enforced for the benefit of those 
 interested. Governor «. Allen, 8 Hump. (Tenn.) 176, 1847; Polk, Gov- 
 ernor, ®. Plummer, 3 II. 500. 
 
 * Briscoe 1. Bank, 11 Pet. 257, 331. 
 
 •Beers ®. Arkansas, 20 How. 527, 1857; Dodd «. Miller, 14 Ind. 433; 
 
Ch. II.] CORPORATIONS DEFINED AND CLASSIFIED. 107 
 
 a state for any object wMch it may properly aid or provide 
 for, is valid.' Extended consideration of the powers of the 
 states, and of their relation to the United States and to each, 
 other, is not within the scope of the present work, which is 
 limited strictly to municipal corporations. 
 
 Auditor v. Davies, 3 Pike (Ark.) 494; Ellis v. State, 4 Ind. 1; State v. 
 Trustees, 5 Ind. 77. The supreme court of the United States has original 
 jurisdiction in cases in which a state shall be a party, as also in suit be- 
 tween states. Kentucky b. Dennison, 24 How. 66 ; Wisconsin v. Duluth, 3 
 Di'Ion C. C. 1878. The United States Circuit Court has not. li. 
 
 ' McDonough Will Case, 16 How. 367, 382, 1853. Post, sec. 489, 
 
108 MUNICIPAL CORPORATIONS. \0s. HL 
 
 CHAPTER III. 
 Ceeation, and Sbveeal Kinds of Municipal Coepoea- 
 
 TIONS. 
 
 In England. — Difference hetween Regal and Parliament- 
 tar y Corporations. — Mv/wiovpal Corporations 
 Act of 1835. 
 
 § 15. In England, corporations can only be created in 
 one of two ways: 1, by the king's charter; 3, by act of 
 parliament. They exist there, however— 1, by the common 
 law ; S, by prescription ; 3, by royal charter ; 4, by author- 
 ity of parliament. Corporations at common law are those 
 which derive their existence and powers from immemorial 
 usage, although they may have had their origin in an act 
 of parliament or royal grant, no longer disco vei able. Those 
 by prescription presuppose a grant by charter or act of 
 parliament, which has been lost. Into corporations created 
 by regal or legislative grant may be resolved what have 
 been styled corporations by implication, which is, where a 
 body, lawfully constituted, cannot carry into effect its pur- 
 poses without attributing to it a corporate character. The 
 franchise of being a corporation, and the right to exercise 
 corporate powers and to enjoy corporate privileges, can be 
 claimed in no other way than as above stated. A legal 
 sanction to the corporate character is, therefore, absolutely 
 necessary, and is always implied.' The distinction between 
 corporations deriving their existence from the king's charter 
 and those which derive their existence from parliament is 
 important. A royal charter is a written instrument, in the 
 form of letters patent, under the great seal, addressed to all 
 the subjects of the realm, containing a grant, by the crown, 
 to the persons named, of the franchises, powers, and priv- 
 
 ' 'Willc. 21; Glover, 23; Grant, 6, 7; 1 Kyd, 39; Angell & Am. sec. 
 69; Bro. Corp. 65; Eastman «. Meredith, 36 N. H. 284, 290, 1858, per 
 Ptrley, C. J. ; St. Louis ». Allen, 18 Mo. 400; Same «. Russell, 9 i6. 503. 
 
Ch. in.] CEBATION OF PUBLIC CORPORATIONS. 109 
 
 ileges therein mentioned. A charter of incorporation, 
 therefore, is the written instrument by wWch the king 
 creates the corporate body, names it, defines its objects, and 
 confers its powers. Unless restricted in the charter, all of 
 the common law incidents of a corporation attach to it, bat 
 no corporation can pursue objects not warranted by its 
 charter. .The charter is the organic act which gives to the 
 corporation both its existence and its peculiar character.' 
 
 The king's charter may confer upon the corporation it 
 institutes all the nsnal and ordinary powers of a corporate 
 body, but it cannot invest such a body with extraordinary 
 powers, such as proceeding in a manner different from the 
 common law, or punishing by forfeiture or imprisonment, 
 or conferring an exclusive right of trading. When the king 
 grants clauses which are iUegal, they are void, and if clearly 
 illegal and not confirmed by parliament, no length of time 
 or usage will make such clanses valid. Bnt parliament, in 
 the fullness of its power, may grant to corporations which 
 it erects such powers, ordinary and extraordinary, as it 
 deems proper ; and it may do, as it has often done, confirm 
 clauses in royal charters which were void, because beyond 
 the king's power to grant. 
 
 The king cannot incorporate a body of men witTiout 
 their assent. UntU. his charter has been accepted, it is in- 
 operative.' When once accepted, the acceptance is irrevo- 
 cable. The acceptance must be by those to whom it is ad- 
 dressed ; and it is held that a valid acceptance may be made 
 by a majority of the grantees. The charter must be accepted 
 in toto, or not at all, for there can be no partial acceptance 
 without the assent of the crown, which must be shown by 
 matter of record. If the corporation be a new one, accept- 
 ance of part of the charter is taken as acceptance of all. 
 Acceptance may be shown by user — by acting under it, as 
 well as by the formal action of the corporate body. Aftei 
 acceptance, the crown cannot resume the grant, nor dissolve 
 or destroy the corporation, without the consent of the 
 grantees or their successors. The crown, at common law, 
 can create a corporation for municipal government in any 
 
 ' Outline of municipal charter of the middle ages. Ante, sec. 6. 
 * Acceptance of charter. Post, sees. S3, 80, 38, 719, n. 
 
XIO MUNICIPAL CORPORATIONS. [Ch. HI. 
 
 place where there is not, at the time, an existing corporation 
 of the same kind, but there cannot be, concurrently, two 
 corporations, for the same place, having the same or similar 
 powers or jurisdiction. But such limitations upon the 
 power of the crown do not apply with respect to municipal 
 corporations created by parliament. Its power is, legally 
 speaking, illimitable. It may create, and abolish, and 
 change, at its pleasure, with or without the assent of the 
 people or corporation to be Dhereby affected. It may 
 change royal charters, but parliamentary corporations can- 
 not be affected, without the consent of parliament, by char- 
 ters granted by the crown. Except as to the extent of 
 powers which may be conferred, a parliamentary corpora- 
 tion is, at common law, similar to that which is created by 
 the crown.' 
 
 § 16. Prior to 1835, many of the towns, boroughs and 
 cities of England were incorporated in one of the ways men- 
 tioned ; that is to say, there were in them bodies corporate, 
 established for the local government thereof. There was no 
 uniformity in the constitution or powers of these corporate 
 bodies. The corporation proper was not the town or place, 
 but a corporate body constituted within it, with powers or 
 jurisdiction, more or less extensive, to govern the inhab- 
 itants. These bodies were established at different times, 
 and with different motives. The first distinct recognition of 
 a municipal corporation was in the 18th of Henry VI. 
 (A. D. 1439), with reference to Kingston-upon-HuU, which 
 had an express charter of incorporation granted to it, for 
 the first time, in that year. Charters had previously been 
 granted to it by different sovereigns, at various times, giving 
 it various privileges, but they did not incorporate the place, 
 nor was it incorpol-ated until the charter of 18th Henry YI., 
 which is the first that uses terms of incorporation." Siibse- 
 q[uently such corporations were erected from time to time, 
 each with its peculiar constitution, depending on the 
 
 Authorities last cited. Respecting the authority of the crown to 
 grant charters to incoi-porate towns, since the General Municipal Corpora- 
 tions Act of 1835, see Rutter v. Chapman, 8 M. & W. 1 ; Reg. ■». Boucher, 
 3 Q. B. 654 ; S. C, 3 G. & D. 737. 
 
 * Glover on Munic. Corp. 16. 
 
Ch. m.] OEEATION OF PUBLIC CORPORATIONS. m 
 
 provisions of the charter or prescriptive usage. The 
 constitTition of the corporations was so various, and 
 is so different from the American model, that it 
 requires care to obtain an accurate idea of it. For 
 illustration, we will take a simple form, viz. : where by 
 charter or prescription the corporation consists of the 
 mayor, aldermen, and commonalty of a town. Here there 
 are three ranks, classes, or parts : 1, the mayor or head offi- 
 cer ; 2, the aldermen, the number of whom is definite, being 
 fixed by the charter, or by prescriptive usage ; 3, the com- 
 monalty, that is, the common freemen, whose number is 
 indefinite, and whose rights, in the course of time, were 
 largely usurped or destroyed. These three classes were 
 denommated. ihe integral parts of the corporation, and no 
 corporation was complete (except it be otherwise provided 
 by the charter) unless the mayor, or head officer, a majority 
 of the definite class (that is, a majority of the aldermen), 
 and some members of the indefinite class, or commonalty, 
 be in existence. Hfence, during a vacancy in the office of 
 mayor, no valid corporate act can be done except to elect 
 another, since without a mayor the corporate body is 
 incomplete. Hence, also, at every corporate meeting it was 
 essential, at common law, that there should be present the 
 mayor, or head officer, whose duty it was to preside, a 
 majority of each definite integral class, and some members 
 of each indefinite class, if there be more than one such class. 
 In the course of time great abuses had crept into these 
 bodies, which parliament had frequently been obliged to 
 redress. Complaints of grievances were universal, and 
 misrule, confusion, and internal disputes so general that the 
 municipal system of government fell into great and deserved 
 disrepute. As a measure of reform, the Municipal Cor- 
 porations Act of 5 and 6 WUl. IV. chap. LXXVI. was 
 devised and enacted.' "I cordially concur," said the king, 
 
 ' The reformed house of commons presented an address to William IV. 
 requesting the appointment of a commission to inquire into the state of the 
 municipal corporations in England and Wales. The commission which 
 ■was fippointed made a thorough examination of the condition of the vari- 
 ous boroughs, and their report disclosed abuses and defects whicb it seems 
 marvelous that any spirited people so long endured. See chapter I. ante, 
 sec. 8. 
 
112 MUNICIPAL CORPOEATIONS. [Ch. HI. 
 
 "in this important measure, whidi is calculated to allay 
 discontent, to promote peace and union, and to procure for 
 those communities the advantages of responsible govern- 
 
 From various sources of information the commission ascertained the ex- 
 istence of two hundred and foi-ty-six corporations, in England and Wales, 
 exercising municipal functions. The population of these corporate places 
 exceeded two millions of people. Some of these corporations claimed to 
 act under prescriptive custom, but most of them under several charters, 
 forming a continued series from a very^iparly date, but generally under 
 charters granted from the reign of Edward I. down to the reign of George 
 IV. inclusive. The number of corporators stated to be definite, in fifty 
 boroughs, varied in most cases from under ten to thirty, and those indefi- 
 nite, in one hundred and sixty-two boroughs, varied from twelve to five 
 thousand, but usually averaged from fifty to two hundred corporators. The 
 titles to freedom, or citizenship, generally comprehended those arising from 
 birth, servitude, marriage, purchase, gift, or election. The governing 
 bodies were formed by the close and corrupt system of self-deelion, in a 
 great majority of the municipalities. The corporate officers, such as the 
 mayor, or other head of the corporation, the recorder — frequently unpro- 
 fessional — and the town clerk, were appointed by the self-elected govern- 
 ing body from its own immaculate conclave. Most of the municipalities 
 possessed exclusive criminal jurisdiction, extending to the trial of felonies 
 and all other offences, whereas many appear never to have had any crim- 
 inal jurisdiction. Several boroughs had civil jurisdiction extending to the 
 decision of all actions; some extending to the decision of personal and 
 mixed actions ; others to the decision of personal actions ; while in a great 
 number, no civil jurisdiction appeared ever to have existed. The property, 
 in some few boroughs, was trivial, but the revenue generally averaged from 
 6001 to lOOQZ in each, -while in some the property exceeded 50,00OZ per an- 
 num. In a few towns corporate, the accounts were printed for distribution 
 and audited publicly; but in most cases, the accounts were neither duly 
 kept, nor audited, nor published, besides being inaccurate and in a gener- 
 ally unsatisfactory state. The annual income of these municipal corpora- 
 tions amounted to about 366,000?, and the expenditure to 377,000?, while 
 the debt in one hundred and thirty-three exceeded the sum of two mil- 
 lions sterling. Throughout the course of the investigation of the commis 
 sioners there were perceptible the same complaints^of magistrates ill 
 qualified, by education and habits, for their situations, generally partial, 
 and sometimes corrupt ; of courts, which might be made the instruments of 
 much local advantage, falling into disuse through defects of their original 
 constitution and their recent maladministration; of juries improperly 
 selected by reason of notorious party bias ; of revenue misapplied ; of debt 
 contracted and of property alienated ; of the absence of all accounts and 
 the denial of all accountability by certain corporations; of the insufficiency 
 of the police, the neglect of paving and lighting, and the want of those 
 municipal accommodations for which the public property committed in 
 trust to the corporation would, if duly administered, be amply sufficient to 
 
Ch. m.] CREATION OP PUBLIC CORPORATIONS. HR 
 
 ment." TMs act organizes all of the municipal corpora- 
 ations of England and Wales upon a uniform model. It 
 does not altogether destroy their previously existing lawful 
 
 provide. Having given a general view of the ordinary constitution of the 
 various municipalities, the commissioners next proceeded to specify some 
 of their defects. The most common and most striking defect in the constitu- 
 tion of the municipal corporations was, that the an'porate todies existed inde- 
 pendently of the communities among which they were found. The corporators 
 looked upon themselves, and were considered by the inhabitants, as sepa- 
 rate and exclusive bodies; they had powers and privileges within the 
 towns and cities from which they were named, but, in most places, all 
 identity of interest between the corporation and the inhabitants disap- 
 peared. That was the case even where the corporation included a large 
 body of inhabitant freemen. It appeared in a more striking degree as the 
 powers of the corporation had been restricted to smaller numbers of the 
 resident population, and still more glaringly when the local privileges had 
 been conferred on non-resident freemen, to the exclusion of the inhabitants 
 to whom they rightfully ought to belong. The privilege of electing members 
 of parliament being that which, before the passing of the reform act, cour 
 f erred upon the self-elected governing bodies of close corporate towns their 
 principal importance, and the rewards for political services which the 
 patron was accustomed to distribute among them, caused this function to 
 be considered, in many places, as the sole object of theii institution. The 
 power so monopolized and employed in a mode unsuitable to the altered 
 circumstances of the times, led to various abuses of the system. The cus- 
 tom of keeping the number of corporators as low as possible,, may be 
 referred to the wish for preserving the parliamentary franchise, rather 
 than to the desire of monopoliaang the municipal authority, which, had 
 been coveted only as a means of securing the other and more highly prized 
 privilege. A great number of corporations were preserved solely as political 
 engines, and the towns to which they belonged derived no benefit,, but often 
 much injury, from their existence. To maintain the political ascendency of 
 a .party, or the political influence of a family, was the one end and object 
 for which the powers entrusted to a numerous class of these bodies have 
 been exercised. This object was systematically pursued in the admission 
 of freemen, resident or non-resident; in their election of municipal ftmc- 
 tionaries for the council or the magistracy ; in the appointment of subordi- 
 nate officers and the local police ; in the administration of charities entrusted 
 to the municipal authorities; in the expenditure of the corporate revenue 
 and in the management of the corporate property. The most flagrant 
 abuses arose from this perversion of municipal privileges to political objects. 
 Thus the inhabitants had to complain, not only that the election of their 
 magistrates and other municipal functionaries was made by an inferior 
 class of themselves, or by persons unconnected with the town', but also of 
 the disgraceful practices by which the magisterial office was frequently 
 obtained ; while those who, by character, residence, and property, being best 
 qualified to direct and control its municipal aflairs, were excluded from 
 8 
 
114 MUNICIPAL CORPORATIONS. [Ch. IH 
 
 corporate powers, but it does sweep away all laws, statutes, 
 charters and usages inconsistent with, or contrary to its 
 provisions. It defines who shall be burgesses or citizens; 
 making the right essentially depend upcJn occupancy of 
 houses or shops within the borough, and the payment of 
 taxes for the relief of the poor. These burgesses or citizens 
 elect, from time to time, a fixed number of proper persons 
 to be councillors, and the council (composed of the mayor, 
 aldermen, and councillors) eleol, from qualified persons, 
 the aldermen, and also the mayor and the ministerial and 
 inferior corporate officers. " The couneil" is the governing 
 
 any share in the elections or management. The exclusiye and party spirit 
 belonging to the whole corporate body, appeared in a still more marked 
 manner in the councils by which, in most cases, it was governed. These 
 councils were usually self-elected, and held their ot&cesfor life. They were 
 commonly of one political party, and their proceedings were mainly 
 directed to secure and perpetuate the ascendancy of the party to which 
 they belonged. Individuals of adverse political opinions were, in most 
 cases, systematically excluded from the governing body. These councils, 
 which embodied the opinions of a single party, were entrusted with the 
 nomination of magistrates, of the civil and criminal judges, ofted of the 
 superintendents of police, and were, or ought to have been, the leaders in 
 every measure that concerned the interests and prosperity of the town. So 
 far from being the representatives either of the population or of the prop- 
 erty of the town, they did not represent even the privileged class of free- 
 men ; and being elected for life, their proceedings were unchecked by any 
 feeling of responsibility. In conclusion, the commissioners reported that 
 there prevailed amongst the inhabitants of a great majority of the 
 incorporated towns a general and a just dissatisfaction with their municipal 
 councils, whose powers were subject to no proper control, whose acts and 
 whose proceedings, being secret, were unchecked by the influence of public 
 opinion ; a distrust of the municipal magistracy, tainting with suspicion the 
 local administration of justice, and often accompanied with contempt of 
 the persons by whom the law was administered ; a discontent under the 
 burdens of local taxation, while revenues that ought to be applied for the 
 public advantage were diverted from their legitimate use, and sometimes 
 wastefuUy bestowed for the benefit of individuals, sometimes squandered 
 for purposes injurious to the character and morals of the people. The 
 commissioners therefore felt it their duty to represent to his majesty, that 
 the municipal corporations of England and Wales neither possess nor 
 deserve the confidence or respect of his majesty's subjects, and that a 
 thorough reform must be effected before they can become, what they ought 
 to be, useful and efiicient instruments of local government. Glover's His- 
 torical Summary of the Corpo^rate System of Great Britain and Ireland, pp. 
 88 to 43. The result was the Municipal Corporations Act of 5 and 6 WilL 
 IV. chap.. LXXYI. 
 
Ch. m.] CREATION OF PUBLIC CORPORATIONS. 116 
 
 body of tlie corporation, and its most important powers are 
 defined by various acts of partiament. It will thus be per- 
 ceived that the original power is in the burgesses or citizens, 
 and that the act adopts the representative system, and 
 proceeds upon the idea that a substantial interest in the 
 incorporated place, which is made necessary in order to be 
 a burgess, or citizen, will induce care in the selection of 
 councillors, and that frequent elections will prove the most 
 effectual check on those entrusted with the administration 
 of the municipal authority, which is carefully limited and 
 defined. 
 
 The act of 1835, with some amendments, constitutes the 
 body of the existing English municipal corporations system, 
 and its leading provisions are so important to be understood 
 in the study and application of the English cases to ques- 
 tions arising in this country, and contain so much of inter- 
 est to the lawyer, the legislator, and the municipal inquirer, 
 that they are given or referred to in the note.' 
 
 ' Municipal OorporaUona Act of 5 and 6 Will. IV. cap. 76, passed Sepfem- 
 ler 9, 1835. — Name, &c. This act commences by reciting, that "Whereas, 
 divers bodies corporate at sundry times have been constituted within the 
 cities, towns, and boroughs of England and Wales, to the intent that the 
 same might forever be and remain well and quietly governed ; and it is 
 expedient that the charters by which said bodies corporate and constituted, 
 should be altered in the manner hereinafter mentioned; be it therefore 
 enacted, that so much of all laws, statutes, and usages, and so much of all 
 royal and. other charters, now in force, relating to the several boroughs 
 named in sehedules (A and B) annexed, as are inconsistent with, or con- 
 trary to, this act, shall he, and, thrf same are hereby, repealed and annulled " 
 • (sec. 1), with the reservation of certain rights, beneficial exemptions, and 
 franchises to the freemen or citizens (sees. 2-6). These schedules contain 
 an alphabetical list of all the incorporated boroughs, with the number of 
 wards, number of aldermen, and number of councillors, and style of the 
 corporate body in each; thus: '■^ Bath, — Seven wards, fourteen aldermen, 
 forty-two councillors." Corporate name — "Mayor, Aldermen, and Citizens 
 of the City of Bath." If it be a borough instead of a city, the word " Bur- 
 gesses" is used instead of "Citizens." The act provides that the body 
 corporate in each of said places "shall take and bear the name of the 
 Mayor, Aldermen, and Burgesses [or Citizens, in case of a city] of such 
 borough, ahd by that name shall have perpetual succession, and shall be 
 capable in law, hy the council hereinafter mentioned of such borough to do," 
 &c. (sec. 6). 
 
 Mbmbbebhip. — Before the passage of the act under consideration, the 
 qualifications for members or officers of municipal corporations depended 
 
116 MUNICIPAL CORPORATIONS. [Ch. m. 
 
 In the United States. 
 
 § 17. The proposition whicli lies at the foundation of 
 the law of corporations of this country is, that here, all 
 
 upon the charter, usage or by-laws of the particular corporation — the usual 
 qualifications being that the person claiming to be admitted to the freedom 
 of the corporsite town should be the son of a freeman, or should have served 
 an apprenticeship to a freeman, or (in some iftstances) married his daughter, 
 or acquired the privilege by gift or purchase ; but this act provides that 
 hereafter "no person shall be elected, made, or admitted a burgess or 
 freeman of any borough by gift or purchase" (sec. 3). It fixes the qwaU- 
 fication of iurgesses or citizens, thus : "Every male person, of full age, 
 who shall have occupied any house, warehouse, counting-house, or shop, 
 within any borough " for three years, ' ' and during the time of such occu- 
 pation been an inhabitant householder within the borough, or within seven 
 miles of the borough, shall, if duly enrolled, le a Iwrgess ofmeh lorough and 
 a member of the body corporate of tJie mayor, aldermen, and iti/rgesses of av-ch 
 tofougJi, provided he shall have been rated in respect to the premises so 
 occupied by him to all rates made for the relief of the poor within the 
 parish" (sec. 9). Such resident occupiers and tax-payers, only, are mem- 
 bers of the corporate body of the place ; all the other inhabitants are no 
 part of the municipal corporation, though subject to its government. 
 
 OouNciLLOKS, How Chosbn, &c. — ^Upon the first day of November, in 
 every year, the burgesses so enrolled in every borough shall openly assemble, 
 and elect from the persons gudl/ifled to be councillors [who must have the 
 qualifications of a burgess, and also increased pecuniary and rating qualifi- 
 cations], the councillors of the borough " (sec. 40), of whom one-third part 
 go out of office annually. The elections are held before the mayor and 
 assessors, and the mode of voting (which is exactly the opposite of the 
 ballot in America) is by delivering to the officers of election a voting-paper 
 containing the name and abode of the person voted for, and signed with 
 the name and abode of the voter. It is thus seen that the burgesses elect 
 the councillors, whose qualifications are fixed by the statute, and whose 
 number in each incorporated place is definite. 
 
 AlBekmbit, How Chosen. — On the ninth day of November, in every 
 third succeeding year, the council for the time being are directed to elect, 
 ' ^from the couneillors, or from persons quaUjied to be councillors, the aldermen 
 of the borough," who are one-third in number of the councillors (sec. 35). 
 The manner of election is prescribed, namely, by every member of the 
 council delivering to the mayor, or chairman, a voting-paper signed by the 
 member voting, which the mayor, or chairman, is directed openly to read. 
 (Act 7 Will. IV. and 1 Vict. chap. LXXVIH. sec. 14; 16 and 17 Vict, 
 chap. LXXIX. sec. 13.) 
 
 Matob, How Chosen. — At the meeting of the council, to be held on the 
 ninth day of November, each year, the council are directed to tHeet, out of 
 the aldermen or eoundUors, a fit person to be the mayor, who shall continue 
 
Oh. m.] CREATION OF PUBLIC CORPORATIONS. 117 
 
 corporations, public and private, exist and can exist only 
 by virtue of express legislative enactment, creating, or 
 authorizing the creation of the corporate body. Legislative 
 sanction is absolutely essential to lawful corporate existence. 
 That a corporation may here exist by prescription, and its 
 existence be established by long and undisputed user of 
 corporate powers may (as the cases hereafter referred to will 
 show) be true, but this prescription and user suppose a leg- 
 in office for one year (sec. 49) and until his successor shall have accepted 
 and qualified (6 and 7 Will. TV. chap. CV. sec. 4). 
 
 Who Compose! the CoimciL, &o. — The mayor, the aldermen, and the 
 councillors, for the time being, constitute "tte council''^ of the borough 
 (sec. 25). The council, as we have seen, elect the mayor and the aldermen, 
 and it also appoints the clerk, treasurer, and other corporate officers. The 
 corporate body acts by and through the council, who have the authority of 
 the old corporations, except as modified. Provision is made for the stated 
 and special meetings of the council; the notice prescribed, the quorum 
 fixed; the presiding officer defined, &c., &c. Power is given to mate by- 
 laws, and the powers of the council defined, and provision is made for 
 powers vested in trustees, under sundry local acts of parliament, for paving, 
 lighting, supplying with water or gas, cleansing, watching, regulating, or 
 improving, or for providing or maintaining a cemetery or market in the 
 boroughs being transferred to the body corporate of the borough (sec. 75, 
 20 and 21 Vict. chap. L.). By other acts of parliament the boundaries of 
 boroughs are fixed (6 and 7 Will. IV. chap. CIII. 1836); the "administra- 
 tion of the borough fund " regulated (76. chap. CIV.) ; " the administration 
 of justice" provided for {11. chap. CV. ; 13 and 14 Vict. chap. XCI.); bor- 
 ough rates regulated (7 Will. IV. and 1 Vict. chap. LXXXI. 1837; 2 and 3 
 Vict. chap. XXVm. ; 8 and 4 Vict. chap. XXVHI. ; 4 and 5 Vict. chap. 
 XLVm. ; 5 and 6 Vict. chap. XOVIII.) ; power to sell and mortgage prop- 
 erty and to charge rates given (5 and 6 Vict. chap. XCVIII. ; 23 and 34 
 Vict. chap. XVI.) ; provision made as to maintaining bridges (13 and 14 
 Vict. chap. LXIV. 1850) ; to promote public libraries (18 and 19 Viet. chap. 
 LXX. 1855; 39 and 30 Vict. chap. XCIV.); in relation to the police (19 and 
 30 Vict. chap. LXIX. ; 37 and 28 Vict. chap. LXIV. ; 38 and 29 Vict. chap. 
 XXXV.) ; the management of highways, by enabling councils to adopt parish 
 roads and apply their funds to their repair (35 and 36 Vict. chap. LXI.); 
 for safe keeping of petroleum (25 and 26 Vict. chap. LXVI.) ; for the ])ro- 
 tection of gardens and ornamental grounds (26 and 27 Vict. chap. XIII.) ; 
 in relation to prisons (28 and 29 Vict. chap. CXXVI. known as "The Pris- 
 ons Act, 1865;" 29 and 80 Vict. chap. C). A variety of other statutes, of 
 less importance, in relation to municipal corporations, have been passed 
 since the general act of 1835, some amendatory of it and some making new 
 and additional provisions. By the famous Disraeli reform bill of 1867, the 
 right to vote for a member, or members, to serve in parliament for bor- 
 oughs was extended to large numbers or classes of persons who did not 
 before possess the franchise. New American Cyclopedia, 1868, p. 337. 
 
118 1 MUNICIPAL CORPORATIONS. [Ch. m, 
 
 islative grant. Instances of prescriptive corporations, witli 
 us, are rare and exceptional. But corporations, public, and 
 private, by virtue of direct legislative authorization, are 
 being created in sucli vast numbers as to constitute one of 
 the most marked and important features of the present age. 
 Speaking of " corporations by statute," in England, Mr. 
 Willcock says that " the legislature has not often exercised 
 the power of creating municipal corporations, because it has 
 been esteemed a flower of the prerogative.'" This has refer- 
 ence to a period anterior to the famous Municipal Corpora- 
 tions Act of September 9, 1835 (5 and 6 Will. IV. chap. 
 LXXVI.), by which parliament undertook the regulation of 
 this important subject." The existing law of corporations is 
 essentially of modern growth, and has yet largely to be de- 
 veloped and settled. Having occasion to refer to this sub- 
 ject in a recent case in Illinois, a distinguished judge said: 
 "Formerly but few private corporations were created, and 
 these cut so small a comparative figure in the destinies of 
 states, that they attracted but little attention on the part of 
 law makers, and were but little studied by the courts. Even 
 in England, until a very recent period, both public and pri- 
 vate corporations were created by royal prerogative, with- 
 out the intervention of parliament, and were invested with 
 such powers and privileges as favorites might ask, or the 
 public good be supposed to require. But even then such 
 corporations were rare. Now they have become among the 
 ■ greatest means of state and national prosperity. It is prob- 
 ably true, that more corporations were created by the legis- 
 lature of EUnois, at its last session, than existed in the 
 whole civilized world at the commencement of the present 
 century. This state of things has necessarily led to a more 
 careful study of the whole subject, both by legislators and 
 the courts.' Not only are commercial or business corpora- 
 tions being thus multiplied, but municipal corporations, in 
 all of the states, are constantly created and universally 
 adopted as part of the ordinary machinery of government, 
 so that it is rare to find a town or city of any size not incor- 
 
 ' Willc. on Munic. Corp. 25. « Ante, Sec. 16. 
 
 « Per Oaton, J., Railroad Co. v. Dalby, 19 111. 363, 1857. See, al8o,similar 
 observations of Sogers, J., in Bushnell «. Insurance Co. 15 Berg. & Ba-wle, 
 176, 177. 
 
Ch. in.] CREATION OP PUBLIC CORPORATIONS. HQ 
 
 porated and invested with the power of local goverument. 
 There are in the United States thousands of incorporated 
 places acting under special charters granted by the states or 
 general incorporation acts passed by them. 
 
 § 18. The power of congress to create or authorize the 
 creation of corporations, public or private, whenever these 
 become an appropriate means of exercising any of the con- 
 stitutional powers of the general government, or of facilitat- 
 ing its lawful operations in the states or territories, must be 
 taken to be conclusively settled by the supreme court.' 
 This power has been exercised on importaht occasions, such 
 as incorporating the banks of the United States, the national 
 banks, and the Pacific Railroad Company, and, witbin the 
 above limitations, it is no longer disputed. Congress 
 habitually passes acts for the organization of territories and 
 territorial governments, which are, in substance and effect, 
 municipal corporations on a large scale and of a peculiar 
 character ; but it is not within the power of congress to 
 establish ordinary municipal corporations within the limits 
 of the-states, and it has never attempted to exercise it. 
 
 In a territorial organic act, a provision that the power of 
 the territorial legislature " shall extend to all rightful sub- 
 jects of legislation" authorizes the legislature to create 
 municipal corporations, and to invest them with the power, 
 to make ordinances, and to provide corporation courts in 
 which to enforce them. And such courts may be provided, 
 although by the organic act it is declared that tine Judicial 
 power of the territory shall be vested in a supreme court, 
 district courts, probate courts, and justices of the peace.' 
 
 . > McCuUough a. Maryland, 4 "Wheat. 316 ; Osborn ». Baak of U. S., 9 li, 
 738; Thompsons. Pacac Railroad Co., 9 WaU. 579; Pacific Raih-oad v. 
 Lincoln Co., 1 Dillon C. C. 314, 1871. 
 
 'State D. Young, 3 Kansas, 445, 1866; Burnes «. Achison, 3 J&. 454; 
 8. P. Reddick s. Amelia, 1 Mo. 5, 1831. In this case the objection made 
 was, that such a legislature was not sovereign, and that nothing short of 
 sovereign power could create a corporation. The answer given was, that 
 congress could give, and had given, the power to legislate on such subjects. 
 That a territorial legislature, vested with general legislative powers, may 
 create a corporation, which is not affected by the subsequent adoption of a 
 state constitution, was held in Vincennes University d. Indiana, 14 How. 
 268, 1853. See, also, Vance v. Bank, IBlackf. (Ind.) 80; Myers*. Bank, 
 20 Ohio, 383 ; Deitz v. City, 1 Colorado, 338. 
 
120 MUNICIPAL CORPORATIONS. [Oh. HI. 
 
 §19, In this country, Tintil comparatively a recent 
 period, municipal corporations have been created singly, 
 each with its special or separate charter passed by the legia 
 lature of the state. These charters, in all of the states, were 
 framed after the same general model, but in the extent of 
 the special powers conferred, and in the peculiar constitu- 
 tion of the governing body, and the like, there was great 
 variety. It will be useful to notice the outline features of 
 one of these charters, since it coAtitutes the organic act of 
 the corporation, and bestows upon it its legal character. 
 Such a charter usually sets out with an incorporating 
 clause declaring, "that the inhabitants' of the town of 
 (naming it), or city of (naming it), are hereby constituted a 
 body politic and corporate by the name and style of the 
 
 'town of -,' or 'city of — — ,' and by that name shall 
 
 have perpetual succession, may use a common seal, sue and 
 be sued, purchase, hold, and sell property," &c. The 
 charter then defines the territorial boundaries of the town 
 or city thus incorporated. After that follow provisions re- 
 lating to the governing body of the corporation, usually 
 styled the town or city council. This is generally composed 
 of one body, though in some instances of two ; the members 
 being called aldermen, councilmen, or trustees. The corpo- 
 
 It is now provided by act of congress, " That the legislative assemblies 
 of the several territories of the United States, shall not, after the passage of 
 this act, grant private charters or especial privileges, but they may, by 
 general incorporation acts, permit persons to associate themselves together 
 as bodies corporate for mining, manufacturing, and other industrial pur- 
 suits." Act of March 2, 1867, 14 Stats, at Large, 426, sec. 1. 
 
 ' In public corporations, as cities, towns, parishes, school-distncts, mem- 
 bership is constituted by living within certain limits, whatever may be the 
 desire of the individual thus residing or that of the municipal or public 
 body. In private corporations, on the other hand, especially those organ- 
 ized for pecuniary profit, membership is constituted by subscribing to or 
 receiving, with the assent of the corporation, when that is necessary, trans- 
 fers of its stock. Overseers of Poor, &c. ■». Sears. 32 Pick. 122, 130, ^er 
 Shaw, C. J. ; Oakes «. Hill, 10 Pick. 333, 346, fenr Morton, J. ; ante, sec. 9, 
 and notes. It is the citizens or inhabitants of a city, not the common 
 council or local legislature, who constitute the " corporation " of the city. 
 The oflScers of the council and other charter officers are the agents or 
 officers of the corporation. Lowler ». Mayor, &c. of N. T., 5 Abbott's Pr, 
 R. 335; Clarke o. Rochester, 34 Barb. 446, 1857. 
 
Ch. IU.] CREATIOi^ OF PUBLIC CORPORATIONS. 121 
 
 ration is divided into wards, and each, ward elects one or 
 more aldermen, the number being specified and definite. 
 The qualifications ol the voters are fixed by the 
 charter, which are, usually, that the voter shall be 
 a male citizen of the United States and of the state, 
 be of age, and a resident, for a specified time, within the 
 limits of the corporation. The mode of holding elections 
 is specified ; and the power is often given to the council to 
 canvass returns, and to settle disputed elections to corporate 
 offices. Provision is made for the election of a mayor, or 
 other chief executive officer of the corporation, and his 
 duties defined. The charter contains a minute and detailed 
 enumeration of the powers of the city council, which are 
 usually numerous ; the most important of which are, the 
 authority to create debts (sometimes restricted) ; to levy and 
 collect taxes within the corporation, for corporate purposes ; 
 to make local improvements and assessments to pay there- 
 for ; to appoint corporate officers ; to enact ordinances to 
 preserve the health of the inhabitants, to prevent and abate 
 nuisances, to prevent fires, to establish and regulate markets, 
 to regulate and license given occupations, to establish a 
 police force, to punish ofl'enders against ordinances ; to 
 open and grade and improve streets ; to hold corporation 
 courts, &c., &c. When it is remembered that the charter 
 of such, a corporation is its constitution, and gives it all the 
 powers it possesses (unless other statutes are applicable to 
 it), its careful study, in any given case, is indispensable to 
 an understanding of the nature of the powers it confers, the 
 duties it enjoins, and liabilities it creates. The construction 
 of its various provisions, and the determination of the rela- 
 tion which these bear to the general statutes of the state ; 
 how far the charter controls, or how far it is controlled by 
 other legislation, are among the most difficult problems which 
 perplex the lawyer and the judge. The study of a question 
 of corporation law begins with the charter, bat it must, 
 oftentimes, be pursued into the general statutes and legisla- 
 tive policy of the state, and after this into the broad field of 
 general jurisprudence, 
 
 § 20. Within a period comparatively recent, the legisla- 
 tures of a number of the states, following the example of the 
 
122 MUNICIPAL CORPORATIONS. [Ch. Hi; 
 
 English Municipal Corporations Act of 5 and 6 Will. IV. 
 cap. LXXVI. heretofore mentioned, have passed general- 
 acts respecting mmiicipal corporations. These acts abolish 
 all special charters, or all with enumerated exceptions, aud 
 enact general provisions for the incorporation, regulation, 
 and government of municipal corporations. The usual 
 scheme is to grade corporations into classes, according to 
 their size, as into Cities of the First Class, Cities of the 
 Second Class, and Towns, or Villages, and to bestow upon 
 each class such powers as the legislature deems expedient ; 
 but the powers and mode of organization of corporations 
 of each class are uniform.' General incorporation acts, 
 rather than special charters, would seem clearly to be the 
 
 ' OMo.—Bj the Towns', Cities', and Villages' Act of May 3, 1853 
 (Swan's Stat. 954), all corporations existing for the purposes of municipal 
 government are thereby organized into eities and incorporated villages. (Sec. 
 1.) In respect to the exercise of certain corporate powers, municipal cor- 
 porations are divided into classes, thus: 1. Cities of first class, which com- 
 prise all cities having a population exceeding twenty thousand inhabitants; 
 2. Cities of the second class, which comprise all cities not embraced in the 
 first class; 3. Incorporated villages ; and 4. Incorporated villages for 
 special purposes. lb. sec. 39 et seq. These are ' ' declared to be bodies 
 
 politic and corporate, under the name and style of the city of , or the 
 
 incorporated village of , as the case may be ; capable to sue and be 
 
 sued, to contract and be contracted with, to acquire, hold, and possess 
 property, real and personal, to have a common seal, and to exercise such 
 other powers, and to have such other privileges, as are incident to muni- 
 cipal corporations of like character or degree, not inconsistent with this 
 act or the general laws of the state." lb. sec. 18. These powers and priv- 
 ileges are then specified with great minuteness, twenty sections' of the act 
 being devoted to this purpose. Incorporated villages are governed by one 
 mayor, one recorder, and five trustees, elected annually; the mayor, re- 
 corder, and trustees constituting the village council, any five of whom 
 make a quorum, lb. sec. 43. The corporate authority of cities is 
 vested in the mayor, one board of trustees (two from each ward), and 
 who compose the city council, together with such officers as are mentioned 
 in the act, or as may be created under its authority. lb. sec. 53 et seq. 
 
 " The governing all cities and villages under one general law, was a 
 new experiment, supposed to be required by the present constitution. It 
 was to be expected, that, in the working of the experiment, omissions, if 
 not mistakes, would be discovered, to be corrected by additional legisla- 
 tion. It will be a work of care and time to perfect an orderly and harmo- 
 nious system." Per Gholson, J., in Thomas v. Ashland, 13 Ohio St. 124, 
 130, 1861. Tn/m, sec. 24a. 
 
 Iowa. — The Oljio act is, in substance, adopted in Iowa. Revision 1860^ 
 
Ch. m.] CREATION OF PUBLIC CORPORATIONS. 133 
 
 best method of creating and organizing municipal corpora- 
 tions. 1. It tends to prevent favoritism and abuse in pro- 
 cuxing extraordinary grants of special powers. 2. It 
 secures uniformity of rule and construction. All being 
 
 chap. LI. But it does not apply to cities having special charters, unless 
 adopted by them. Burke v. JeflMes, 20 Iowa, 145. 
 
 In Tennessee (Acts 1849, Chap. 17) provision is made by general act for 
 the incorporation of towns, cities^and villages. The constitution of Ten- 
 nessee declares, that "The legislature shall have power to grant charters 
 of incorporation as they may deem expedient for the public good." Art. 
 XI. sec. 7. In the State v. Armstrong, 3 Sneed, 634, it was held, that the 
 act of 1856, by which full power to create corporations, and determine the 
 extent of their powers, was given to the Circuit Courts, was unconstitu- 
 tional, on the ground that the legislature could not delegate its authority to 
 the courts. But in the Mayor, &c. v. Shelton, 1 Head, 34, 1858, it was 
 held, that the act of 1849 — which was a general statute for the incorpora- 
 tion of towns and cities, and by which a petition was to be presented by 
 the inhabitants of a place proposing to organize under the act, to the 
 County Court, which had power simply to record the petition and desig- 
 nate the boundaries of the corporation — was not in conflict with the con- 
 stitution, as the statute, and not the court, determined the extent and 
 nature of the powers of the corporation. 
 
 Missouri. — A general act for the incorporation of towns was passed in 
 Missouri in 1845, and it was held not unconstitutional by reason of certain 
 duties which it imposes on the County Court with reference to organization 
 of towns under the act, as these duties are not legislative but judicial, and 
 the law itself, and not the court, declares the powers of which the corpo- 
 ration shall be possessed. Kayser v. Trustees, &c., 16 Mo. 88, 1853. 
 
 Indiana. — The general law of 1857, for the incorporation of cities, is 
 not unconstitutional for want of uniformity in the mode of their organiza- 
 tion. Lafayette a. Jenners, 10 Ind. 70, 80, 1857. See also "Welker v. 
 Potter, 18 Ohio St. 85. 
 
 Pennsyhania. — A general act was passed in 1851, designed to form a 
 system for the regulation of boroughs incorporated thereafter. Comw. v. 
 Montrose, 53 Pa. St. 391. 
 
 North Carolina. — By general act, every incorporated town may elect, 
 each year, not less than three, nor more than seven, commissioners, who are 
 a body corporate and the governing body of the town. These commis- 
 sioners are elected by the vote of the citizens of the place. At the same 
 time they are also to elect a mayor, who presides at the meetings of tha 
 commissioners, but who has no vote except in case of a tie. The mayor is 
 both a peace officer and a judicial officer, with the same jurisdiction as a 
 justice of the peace, with power also to " hear and determine all cases that 
 may arise upon the ordinances of the commissioners, " &c. The commis- 
 sioners may levy certain specified taxes, and make ordinances in relation to 
 their officers, records, markets, nuisances, the repair of streets and bridges 
 
134 MUNICIPAL CORPORATIONS. [Oh. m, 
 
 created and endowed alike, real wants are the sooner felt 
 and provided for, and real grievances the sooner redressed. 
 
 By Implication. 
 § 21. It is well settled in England that, wMle a corpora- 
 tion must commence or be instituted by the proper au- 
 thority, yet no fixed, prescribed, or precise form of words 
 Is necessary, in order to create a corporation. While the 
 words "to found," " to erect*Dr establish," or "to incor- 
 porate," are commonly used to evince the intention to erect 
 or create a body politic, they are not necessary.' The king 
 
 in the town, &c., &c. These general provisions apply to all incorporated 
 towns when not inconsistent with special charters or acts in reference 
 thereto. Rev. Code 1854, chap. IH. p. 586. 
 
 New Tork. — In this state there are cities with local and special charters, 
 and also towns whose powers, duties, and privileges are particularly pre- 
 scribed by statute. Bach town is a body corporate for specified purposes ; 
 but it is declared that " No town shall possess or exercise any corporate 
 powers except such as are enumerated in this chapter, or shall be specially 
 given by law, or shall be necessary to the exercise of the powers so enume- 
 rated or given." Rev. Sts. part I. chap,. XI, p. 337, sees. 1, 3. " The sev- 
 eral towns in this state," says, Benio, J., in Lorillard i>. The Town of 
 Monroe, 11 N. T, (1 Eern.) 393, 1854, "are corporations for certain 
 special and very limited purposes, or, to speak more accurately, they have 
 a certain limited corporate capacity. They may purchase and hold lands 
 within their own limits for the use of their inhabitants. They may, as a 
 corporation, make such contracts and hold such personal property as may 
 be necessary to the exercise of their corporate or administrative powers, 
 and, as a necessary incident, may sue and be sued, where the assertion of 
 their corporate rights, or the enforcement against them of their corporate 
 liabilities, shall require such proceedings. (1 R. S. 337, sec. 1 et seq.) In 
 all other respects — ^for instance, in everything which concerns the adminis- 
 tration of civil or criminal justice, the preservation of the public health and 
 morals, the conservation of highways, roads, and bridges, the relief of the 
 poor, and the assessment and collection of taxes — the several towns are 
 political divisions, organized for the convenient exercise of portions of the 
 political power of the state, and are no more corporations than the judicial, 
 or the senate and assembly districts. lb. sec. 3. The functions and duties 
 of the several town officers respecting these subjects, are judicial and admin- 
 istrative, and not in any sense corporate functions or duties," and hence, as 
 to such svbjects, the towns as corporations are not liable for any default or 
 malfeasance of these officers. See, as to the corporate capacity of towns in 
 New Tork, Denton v. Jackson, 3 Johns. Ch. R. 320 ; North Hempstead v. 
 Hempstead, 3 Wend. 109; affirming S. C. Hopk. 388; Cornell ®. Guilforl, 
 1 Denio, 510. 
 
 ' 10 Co. 37 a, 38 a, 39 5, 30; 1 Kyd, 63; 3 Kent Com. 27. 
 
Oh. m.] CREATION OF PUBLIC CORPORATIONS. 135 
 
 grants a charter to the men of Dale, that they may annttally 
 elect a mayor, and plead and be impleaded by the name of 
 the mayor and commonalty. This is considered to be sufla- 
 cient to incorporate them.' So a grant by a charter con- 
 taining no direct clause of incorporation to the inhabitants 
 of a town " that their town shall be a/ree borough, incor- 
 porates it." So, also, a grant by the king to the men 
 of Dale that they be discharged of tolls, incorporates 
 them for this particular purpose, but does not enable them 
 to purchase.' The settled doctrine is that a corporation 
 may be created by implication, as well as by the use of 
 words. But this implication, to be sufficient, must clearly 
 evince or express the intention to establish or constitute a 
 body politic or corporate — that is, to invest it with corporate 
 powers and privileges. But the absence of express pro- 
 vision respecting the incidents which the law tacitly annexes 
 to corporations, is considered immaterial. Thus the omis- 
 sion in the charter or act of the words "to plead and be 
 impleaded," or " to have a seal," or "to make by-laws," 
 would not make it essentially defective.* So it would not 
 be essentially defective if the name was omitted, if the 
 
 ' 31 Edw. rV. 56. The doctrine of a corporation by implication orig- 
 inated in the time of Edward IV. i 6. 8 Edw. IV. 38. Post, sec. 431. 
 ' Kyd, 63, cites Firm. Burg. chap. n. ; Madox Hist. Exch. 403. 
 
 » Vin.Abr. Corp. F. pi. 6; 75. pi. 4; Bagot's Case, 7 Edw. IV. 39; Grant 
 on Corp. 43, note e, and cases cited. 
 
 * 1 Rol. Abr. 513 : 1 Kyd, 63 ; The Conservators, &c. «. Ash, 10 Barn. & 
 Cress. 349; 31 Eng. C. L. 97, 1839. "It is not necessary," says Mr. Kyd, 
 " that the charter should expressly confer those powers without which a col- 
 lective body of men cannot be a corporation, such as the power of suing 
 and being sued, and to talte and grant property, though such powers are, in 
 general, expressly given." 1 Kyd Corp. 68. Thus, in the case of the Bor- 
 ough of Twrmouth, 1609, 2 Brownlow & Goldsb. 393, part II. it was decided 
 by the common bench, per Lord Coke, that a grant of incorporation to the 
 burgesses or citizens of a borough or city, which, being an old grant, should 
 be favorably construed, was good, without the words "their successors." 
 And see, on this subject, the learned opinion of Shaw, C. J., in Overseers of 
 Poor, &c. «. Sears, 33 Pick. 133, 130, 1839. He says : "The mode of perpet- 
 uating the existence of a corporate body is not essential ; all that is essen- 
 tial is that Some mode be provided by the charter or act by which it is con- 
 stituted, or by the general laws of the government, by means of which it 
 shall be so perpetuated." 33 Pick. 130; The Conservators v. Ash, 10 Bam. 
 & Cress. 349; 31 Bng. C. L. 97. 
 
136 MUNICIPAL CORPORATIONS. [Ch. IH. 
 
 name could be ascertained from the terms of the charter or 
 act, or from the nature of the thing or matters granted.' 
 Certain attributes or powers are absolutely essential to con- 
 stitute a body corporate, such as perpetual suficession, the 
 right t& contract, to sue and be sued as a corporation, &c. 
 Now if the charter or act, which is relied upon as creating 
 a body corporate by implication, instead of simply omitting 
 to express these essential properties, negatives and ex- 
 cludes them, it is plain that th#body would not be deemed 
 incorporated.' 
 
 § 22. Although corporations in this country are created 
 by statute, still the rule is here also settled that not only 
 private corporations aggregate, but municipal or public cor- 
 porations, may be established without any particular form 
 of words, or tecbnical mode of expression, though such 
 words are commonly employed.' If powers and privileges 
 are conferred upon a body of men, or upon the residents 
 or inhabitants of a town or district, and if these can- 
 not be exercised and enjoyed, and if the purposes in- 
 tended cannot be carried into effect, without acting in a 
 corporate capacity, a corporation is, to this extent, cre- 
 ated by implication. The question turns upon the intent 
 of the legislature, and this can be shown constructively as 
 well as expressly.' This is well illustrated in a case in 
 Massachusetts, " where the question was whether the plain- 
 
 ' Trustees «. Parks, 10 Maine (1 Pairf.) 441 ; School Com. o. Dea,ii, 2 
 Stew. & Port. (Ala.) 190, 1833. 
 
 ' Grant on Corp. 30. 
 
 * Thomas «. Daken, 33 Wend. 9, 84, per Oowen, J., and authorities cited; 
 Bow v. AUentown, 34 N. H. 351, 373; Stebbins ». Jennings, 10 Pick. 173; 
 Benton v. Jackson, 2 Johns. Ch . 325, 326, 1 817 ; Mahoney v. The Bank of the 
 State, 4 Ark. 630, 1842 ; S. C. well digested in Angell & Ames on Corp. sec. 
 77 ; North Hempstead v. Hempstead, 3 "Wend. 109, 133, opinion by Smage, 
 0. J. ; Conservators of River Tone v. Ash, 10 Barn. & Cress. 349 ; JeflFreys v, 
 Garr, 2 B. and Adol. 841 ; ex parte Newport Trustees, 16 Sim. 346 ; 2 Kent 
 Com. 27. 
 
 • Same cases last cited. 
 
 ' Inhabitants, &c. ®. Wood, 13 Mass. 193, 1816 — Mr. Pessenden, for the 
 plaintiff, and Mr. Greenleaf, for the defendant. In Bow ®. AUentown, 34 
 N. H. 451, it was held that the annexation, by the legislature, of other ter- 
 ritory to the town of AUentown made that a corporate town by implication. 
 
Oh. m.] CKEA.TION OF PUBLIC CORPORATIONS. 137 
 
 tiffs were a corporate body, with power to sue. They were 
 not incorporated expressly. But, by statute, the inhabi- 
 tants of the several school districts were empowered, at any 
 meeting properly called, to raise money to erect, repair, or 
 purchase a sohoo house, to determine its site, &c., &c., the 
 majority binding the .minority. The cause was argued by 
 able counsel, and, after several consultations, the supreme 
 court all finally agreed in the opinion Jhat the plaintiffs pos- 
 sessed suflEicient corporate powers to maintain an action on 
 a contract to build a school-house, and to make to them a 
 lease of land. But the intention of the legislature, where 
 ■ it is sought to show that a corporation has been created by 
 implication, must plainly appear.' 
 
 Acceptance of Charter. 
 
 § 23. The rule which applies to private corporations, 
 that the incorporating act is ineffectual to constitute a cor- 
 porate body until it is assented to or accepted by the corpo- 
 rators, has no application to statutes creating municipal 
 corpprations. These are imperative and binding without 
 any consent, unless the act is expressly made conditional. 
 All who live within the limits of the incorporated district 
 are bound by them, and can only withdraw from the cor- 
 poration by removal. Over such corporations the legislature, 
 unless restrained by the constitution, has entire control ; 
 and unless otherwise provided by the act itself, or a differ- 
 ent intention be manifested, the public corporation is legally 
 constituted as soon as the incorporating act declaring it to 
 exist goes into effect." But while the legislature is not 
 
 if it was not so before; and such, also, was the effect, under the constitution 
 of New Hampshire, of a grant to a place having less than one hundred and 
 fifty poUs to send a representative. A legislative grant gives capacity to 
 hold the thing granted. Lord t. Bigelow, 6 Verm. 465. 
 
 ■ Medical Institute v. Patterson, 1 Denio, 61 ; 8. 0. afBrmed in court of 
 errors, 5 iJ. 618, 1846 ; Myers t. Irwin, 2 Serg. & Rawle, 368, 1816 ; Angell 
 & Ames, Sec. 79, and cases cited ; Wells xi. Burbank, 17 N. H. 393 ; Society, 
 &c. B. Town of Pawlet, 4 Pet. (TJ. S.) 480, 503. To establish a corporation 
 by implication, says Sham, 0. J., in Stebbins v. Jennings, 10 Pick. 172, it 
 must appear that the rights and powers conferred can only be enjoyed by 
 the exercise of corporate powers, and, therefore, if such powers are not 
 necessary, they are not impliedly given. 
 
 • Berlin ». Gorham, 34 N. H. 266, 1856, per Bell, J., where it is accord- 
 
128 MUNICrPAIi COEPORATIONS. [Oh. III. 
 
 bound to obtain tbe acceptance or assent of the mnmoipal 
 corporation, it is well established that a provision in a mu- 
 nicipal charter that it shall not take effect unless assented 
 to or accepted by a majority of the inhabitants, is not un- 
 constitutional, it being in no just sense a delegation of leg-, 
 islative power, but merely a question as to the acceptance 
 or rejection of a charter." So a provision in a charter, or 
 
 ingly held, that to make an incorporation tf a town effectual, it is not nec- 
 essary that there should be a legal town meeting holden in it. See also 
 People «. Wren, 4 Scam. 369; Warrens. Charlestown, 3 Gray, 104; Mills v. 
 Williams, 11 Ire. 558; State v. Ourran, 7 Eng. 331; Fire Department d. 
 Kip, 10 Wend. 367; People «. Morris, 13 Wend. 335, 337; Brouwer v. Ap- 
 pleby, 1 Sandf. 158, 1847; People «. President, 9 Wend. 851; Wood «. Bank, 
 
 9 Cow. 194, 305, 1838 ; Proprietors, &c. ■», Horton, 6 Hill, 501 ; Gorham v. 
 Springfield, 31 Maine, 58, 1843 ; People v. Stout, 38 Barb. 349, 1856 ; Bristol 
 V. New Chester, 3 N. H. 533, 583, 1836 ; State ». Canterbury, 8 Post. 318. 
 Acceptance, when requisite, may, doubtless, be implied, in proper cases, as 
 where no particular mode of expressing acceptance is prescribed, from cor- 
 porate acts and conduct, as in cases of private corporations. Taylor «. New- 
 berne, 3 Jones Eq. (N. C.) 141, 1855. See Zabriskie v. Railroad Co., 33 
 How. (U. S.) 381, 397, 1859. 
 
 ' People V. Salomon, 51 m. 53, 1869 ; Alcorn v. Horner, 38 Miss. 653, 1860 ; 
 Patterson v. Society, &c., 4 Zabr. (N. J.) 385, 1854 ; Smith*. McCarthy, 56 Pa. 
 St. 359 ; County v. Quarter Sessions, 8 Barr. 395 ; Commonwealth v. Painter, 
 
 10 li. 314; and see also Bulls. Read, ISGratt. (Va.)78, 1853; People*. Rey- 
 nolds, 5 Gilm. (111.) 1; State*. Scott, 17 Mo.. 531; Hudson Co. ■». State, *4 
 Zabr. 718; Bank ®. Brown, 36 N. Y. 467, 1863. This case asserts a distinc- 
 tion between a bill submitted to the people of the whole state for adoption 
 or rejection, and an act which leaves it to the inhabitants of a particular 
 locality whether they will avail themselves of its provisions. It has been 
 held in New Hampshire that it was competent for the legislature, under 
 the constitution of the state, to enact a penal law which shall have effect 
 only in those towns which adopt it by vote. State v. Noyes, 10 Post. 279, 
 1855. An amendment to a city charter was to take effect only when 
 adopted "by a majority of the voters of the city." This was considered to 
 manifest the intention to present the question of acceptance to the voters 
 at a regular c% election. The council ordered the vote to be taken at the 
 township polls; the voters of the two organizations possessing different 
 qualifications, but the township and city occupied precisely the same terri- 
 tory: Held, that the election was of no validity, and that the amendment 
 had never been duly accepted. Poote e. Cincinnati, 11 Ohio, 408, 1843. 
 
 A useful article upon the Constitutionality of Local Option Laws will 
 be found in 13 Am. Law Reg. (N. S.), March, 1873, p. 139. Affirming the 
 principle that municipal or public corporations or the people thereof may 
 by the legislature be invested with the power to regulate or prohibit the 
 
Ch. m.] CREATION OP PUBLIC CORPORATIONS. 129 
 
 the constituent act of a municipal corporation, by which 
 the right to make certain improvements or to create certain 
 iabilities is made to depend upon a vote of the people in- 
 terested, has frequently been upheld as valid.' So an act 
 directing an election to be held by the qualified electors in- 
 terested to determine, by ballot, whether a newly-erected 
 township should be continued, is constitutional." On the 
 same principle the legislature may provide that a statute 
 
 retail of intoxicating drinks, the supreme court of New Jersey have recently 
 decided the Chatham Local Option Law, which declared the retail of ardent 
 spirits without license to be unlawful, and which proYided that no license 
 should be granted if a majority of the voters of a township voted " no 
 license," to be constitutional. State®. Morris Common Pleas, 13 Am. Law 
 Reg. (N. S.l 32. See also, in Pennsylvania, the very r»cent case of the 
 Comw. ». Locke, et al. City Commissoners, not yet reported, which involved 
 the question of the validity of the act of May, 1871, "to allow the voters of 
 the 23d Ward of Philadelphia to vote on the question of granting licenses 
 to sell intoxicating liquors." 
 
 ' Clarke o. Rochester,- 38 N. T. 605 ; Bank of Rome v. Rome, 18 N. T. 38 ; 
 Trustees v. Cherry, 8 Ohio St. 564 ; Burnes «. Achison, 3 Kansas, 454, 1864 ; 
 Bank ®. Brown, 36 N. T. 467 ; Hammond «. Haines, 35 Md. 541 ; Raiilroad 
 Co. v. Commissioners, 1 Ohio St. 77 ; Poote a. Cincinnati, 11 Ohio, 408, 
 1843 ; St. Louis o. Alexander, 23 Mo. 483 ; Blanding v. Burr, 13 Cal. 343. 
 These cases are distinguishable from Barto v. Himrod, 4Seld. 483. 
 
 ' Commonwealth v. Judges, &c., 8 Pa. St. 391; distinguished, from Par- 
 ker*. Commonwealth, 6 11). 507; Commonwealths. Painter, 10 Pa. St. 214, 
 1849 ; Smith v. McCarthy, 56 Pa. St. 359. "Where the authority to act de- 
 pends upon the prior sanction of "a minority of the qualified voters " resid- 
 ing in the corporation, the presumption is, that all who vote are legal voters ; 
 and the better view probably is, that those who do not vote acquiesce in 
 the result, and that a majority of those actually voting is sufficient, though 
 in point of fact, it may not be a majority of all who would be entitled to 
 vote. State «. Binder, 38 Mo. 450, 1866; State 8. Mayor, &c. 37 Mo. 370. 
 And of thii opinion is the Supreme Court of the ifnited States, in which, 
 in an action on municipal bonds, the phrase " a majority of the legal voters 
 of the township " was held to mean a majority of the legal voters of the 
 township voting at the election. St. Joseph Township v. Rogers, Dec. 
 Term, 1872; Peoples. "Warfleld, 30 111. 163; People v. Weant, 48111. 363; 
 Railroad «. Davidson County, 1 Sneed (Tenn.) 693; Talbot «. Dent, 9 
 B. Mon. 536; Angell & Ames Corp. 9 ed. sees. 499, 500. But com- 
 pare State V. Winkelmeier, 35 Mo. 103, which construes such language 
 to require a "majority of all the legal voters of the city, and not 
 merely of all who might, at a particular time, choose to vote upon it." See 
 Damon v. Granby, 3 Pick. 345, 355, 1834, and chapter on Corporate Meet- 
 ings, post. Infra, sec, 25, note. 
 
 g 
 
130 MUNICIPAL CORPORATIONS. [Ch. IIL 
 
 shall cease to exist unless the municipal corporation to be 
 affected by it shall, within a prescribed period, assent to it. 
 
 Special Constitutional Provisions. 
 
 § 24. The constitutions of many of the states contain 
 provisions respecting the creation and powers of municipal 
 corporations. In some of the constitutions the legislature 
 is in terms allowed to create cof|porations for municipal 
 purposes by special act,' and, in others, it is, in tei-ms, for- 
 bidden to do this, and required to provide a general law for 
 all corporations, public and private." So far as municipal 
 
 1 Coming ®. Greene, 33 Barb. 33, 1856. 
 
 " Post, Chap. IV. Ifens) Torh constitution, 1846, art. Vlll. sec. 1 ; 
 Illinois constitution, 1847, art. X. sec. 1; see, also, new constitution, 1870; 
 MieMgan constitution, 1850, art. XV. sec. 1 ; GaUfornia, constitution, 1849, 
 art. IV. sec. 81; construed. Railroad Co. v. Plumas Co., 37 Cal. 354; Minne- 
 sota constitution, 1857, art. X. sec. 3 ; Tiemey «. Dodge, 10 Minn. 171 ; 13 
 /5. 41; Oregfore constitution, 1857, art. XL sec. 3; Xom'siajia constitution, 
 1864, title Vn. art. CXXI. ; N&vada constitution, 1864, art. Vm. sec. 1 ; 
 construed, Virginia City v. Mining Co., 3 Nev. 86. In Missouri it is prc^ 
 vided that no municipal corporation shall be created by special act, except 
 cities of at least 5,000 inhabitants, the special act to be approved by a vote 
 of the inhabitants. Constitution 1865, art. VIII. sec. 5. 
 
 " Iowa constitution, 1857, art. in. sec. 30 ; Von Phnl v. Hammer, 39 
 Iowa, 333 : Morida constitution, 1865, art. IV. sec. 30 ; Nebraska constitu- 
 tion, art. VIII. sees. 1 and 3. By the new constitution of Illinois, special 
 legislation is forbidden " incorporating cities, towns, or villages, or chang- 
 ing or amending the charter of any town, city, or village." Kansas con- 
 stitution, art. XII. sees. 1 and 5 ; construed, Wyandotte City v. Wood, 5 
 Kansas, 603; Achison.s. Barlow, 4 Z6. 134. The constitution of OJiio is as 
 follows : "The general assembly shall provide for the organization of cities 
 and incorporated villages by general laws, and restrict their power of taxa- 
 tion, assessment, borrowing money, contracting debts, and loaning their 
 credit, so as to prevent the abuse of such power." Constitution A. D. 
 1851, art. XIII. sec. 6. Under this section the legislature, by the Towns' 
 and Cities' Act of May 3, 1853 (Swan & Critchf. Stats. 1497), undertook to 
 provide for the government of all such places by a general statute. Thomas 
 v. Ashland, 13 Ohio St. 184. An act applying to all dties of the first class 
 containing less than one hundred thousand inhabitants, is not in conflict 
 with the provision of the constitution which requires all laws of a general 
 nature to have a uniform operation throughout the state. WelkerUv Potter, 
 18 Ohio St. 85, 1868; see also Lafayette ®. Jenners, 10 Ind. 70, 80, 1857. 
 Construction of constitutional provision that there shall be ' ' but one sya- 
 
Ch. m.] CEEATION OF PUBLIC CORPORATIONS. 131 
 
 corporations and their rights are protected by constitutional 
 provisions, express or implied, they are removed from legis- 
 lative control, but no further, as we shall see in a subse- 
 quent chapter. Although the constitution of a state may 
 recognize the municipal corporation of an important city by 
 fixing the number of certain officers, and providing for their 
 election, &c., yet this does not make the charter of the city 
 a constitutional charter conferring powers beyond the con- 
 trol of the legislature.' 
 
 • § 24a. The constitution of Kansas, as well of Ohio, in 
 the article entitled "Corporations," contains a provision 
 
 tem of tovm and county government," which "shall be as nearly uniform as 
 practicable." State ». Dousman, 38 Wis. 541, 1871; States. Riordan, 34 
 Wis. 484, 1869. 
 
 ' Baltimore n. Board of Police, 15 Md. 376, 1859 ; see also Paterson «. 
 Society, &c. 4 Zabr. (N. J.) 385, 1854. In People ». Draper, 15 N. Y. 561, 
 Brown, J., says: "When the present constitution was formed, the entire 
 territory of the state was separated, and appropriated by its ciWl divisions, 
 its counties, cities, and towns. These civil divisions ■ are coeval with the 
 government. The state has never existed a moment without them. All 
 our thoughts and notions of civil government are inseparably associated 
 with counties, cities, and towns. They are permanent elenients in the 
 frame of government ; they are institutions of the state, durable and inde- 
 structible by any power less than that which gave being to the organic law. 
 They are, however, subject to control and regulation by the legislature. It 
 may enlarge or circumscribe their territorial limits, increase or diminish 
 their numb^s, separate them into parts, and annex some of the parts' to 
 parts of others ; but they must still assume the form and be known and 
 governed only as counties, cities, or towns. The state at large is, and ever 
 has been, an aggregate of these local bodies." To same effect, in same 
 case, II. 541, per Denio, 0. J. See also People d. Morrell, 21 Wend. 563 
 (division of counties) ; ante, pp. 81-91. In People ». Hurlburt, decided by 
 the Supreme Court of Michigan, in 1871, 34 Mich. 44, this subject is largely 
 and learnedly examined by Mr. Justice Oooley', who, conceding to the state 
 full authority to shape and control municipal organizations at its will, 
 nevertheless maintained that there were, in the constitution of that state, 
 both express and implied restrictions upon the legislative dominion over 
 municipal institutions, and that local governments and the right of the 
 people to them were secured by the constitution, and did not exist by the 
 favor and at the mere pleasure of the legislature. And in the same case 
 the court decided, under a special provision of the constitution of the state, 
 elsewhere noticed, that the legislature could not appoint, for a city corpo- 
 ration, officers whose duties were purely local and strictly municipal. The 
 discussions by all of the judges are unusually interesting. Ante, p. 84, et seg. 
 
133 MUNICIPAL CORPORATIONS. [Ch. lU. 
 
 that "the legislature shall pass no special act Gonferring 
 corporate powers,' ' ' and the Supreme Courts of those states 
 have decided that the provision applied to municipal as 
 well as private corporations ; ' and that the effect was to 
 compel the legislatures of those states to regulate the grant 
 of powers to municipal corporations by general laws. 
 Hence an act specially amending the charter of a city in 
 respect to making local improvenffents or assessments," or 
 specially extending the limits of a particular city,* is uncon- 
 stitutional. And so it seems is an act which authorizes a. 
 city by name to issue its scrip for a particular purpose, 
 and to levy taxes to pay it in aid of a single enterprise— 
 the court inclining to hold such an enactment to be a 
 
 ' Constitution of Kansas, art. Xll. Sees. 1 and 3 of art. XIII. of the 
 constitution of Ohio is the same as sec. 1, art. XII. of the constitution of 
 Kansas. Sec. 6, art. Xin. of the OMo constitution is the same as sec. 5, 
 art. Xn. of the Kansas constitution. There is a similar constitutional pro- 
 vision in WehrasJea, and perhaps in other states. Supra, sec. 24. 
 
 ' Atchison «. Bartholew, 4 Kansas, 134, 1866 ; "Wyandotte City «. Wood, 
 5 Kansas, 603, 1870 ; The State «. Cincinnati, 20 Ohio St. 18, 1870 ; fd!- 
 Ipwing Atkinson v. Railroad Co., 15 Ohio St. 21, 1864. 
 
 ' Atchison v. Bartholew, supra. 
 
 * Wyandotte v. Wood, supra; State «. Cincinnati, supra. In the case 
 last cited, the Supreme Court of Ohio, under the constitutional provision 
 queted in the text, held that the legislature cannot by special act create a 
 corporation ; nor by special act confer additional powers on a corporation 
 already existing, and that in these respects there was no difference between 
 private and municipal corporations, since the constitution equally embraced 
 and equally applies to both classes ; and therefore the act of April 16, 1870, 
 "to presciibe the corporate limits of Cincinnati," btjing considered a 
 special act, was adjudged void. See also Atkinson v. Railroad Company, 
 supra. In this case, Bannep, J., thus expounds the constitution: "These 
 provisions of the constitution are too explicit to admit of the least doubt 
 that they were intended to disable the General Assembly from either creat- 
 ing corporations, or conferring upon them corporate powers, by special acts 
 of legislation. It was intended to correct an existing evil, and to inaugu- 
 rate the policy of placing all corporations of the same kind upon a perfect 
 equality as to all future grants of power ; of making such law applicable to 
 all parts of the State, and thereby securing the vigilance and attention of 
 its whole representation ; and finally, of making all judicial construction of 
 their powers, or the restrictions imposed upon them, equally applicable to 
 all corporations of the same class. We must give such a construction to 
 the constitution as will preserve its leading objects intact." Supra, sec. 20. 
 
Ch. in.] CREATION OF PUBLIC CORPORATIONS. 133 
 
 special act, and one which undertook to confer corporate 
 powers.^ 
 
 % 25. A constitutional provision that two-thirds of the 
 general assembly "shall be requisite to every bill creating, 
 continuing, altering, or renewing any body politic or corpo- 
 rate,^^ was held by a majority of the court of errors, revers- 
 ing the majority view of the supreme court in the same case, 
 to extend to public and municipal, as well as private, cor- 
 porations.' 
 
 1 Commercial National Bank v. City of lola, TJ. 8. Cir. Court, June, 
 1878, reported in 2 Dillon Cir. C. R. In this case the Circuit Judge, de- 
 livering the opinion of the court, and referring to the opinion of Banney, 
 J., quoted in the last note, observed: " One of the objects of the constitu- 
 tional provision in Kansas, as well as in Ohio, was to cut up by the roots 
 the mischief of special legislation, particularly in respect to corporations, 
 both public and private. This object would be defeated if the special act 
 relating to the city of lola could stand. If under the doctrine of Butz v. 
 Muscatine, 8 "Wall. 575, this court is not absolutely bound, in this class of 
 cases, to follow the interpretation of the State constitution given by its 
 highest court, yet it seems that it ought to follow it where it appears to 
 rest upon solid grounds, and was made in cases and in respect to questions 
 where there was nothing to warp the judgment of its judges,and where the 
 interpretation was settled or had been declared at the time the act in con- 
 troversy was passed. In the latest case on this subject, decided by the 
 Supreme Court of the United States, it is not denied that the Supreme 
 Court of a State is the appointed expositor of its constitution and laws 
 and that the Federal courts will adopt as rules for their own judgments 
 the decisions of the highest courts of the State ' ' respecting local questions 
 peculiar to itself, or respecting the construction of its own constitution and 
 laws." It only denies the binding force of State adjudications which rest 
 upon the general principles of law, and not upon the meaning of special 
 constitutional or legislative provisions. Olcutt v. Supervisors, U. S. Su- 
 preme Court, Dec. 'Berm, 1873. I think the present case is one in which it 
 is the duty of this court to follow the decisions of the State Supreme Court; 
 and so far as my judgment rests upon the special provisions of the constitu- 
 tion above referred to, I place it upon the State adjudications without an 
 inquiry into their soundness." 
 
 The bonds in this case were held invalid mainly on the ground that 
 they were not issued for a public purpose. Post, sec. 105 S/ .also chap. 
 XIV. on Contracts. 
 
 » Purdy «. People, 4 Hill (N. T.) 384, 1842; reversing 2 Hill, 31. 
 What is an alteration within this provision : Coming v. Green, 23 Barb. 38 ; 
 Smith v. Helmer, 7 Barb. 416; Morris ». People, 3 Denio, 381. Where a 
 constitution requires that acts of incorporation shall have "the assent of 
 
134 MUNICIPAL COiRPORATIONS. [Ch. ITL 
 
 § 26. Under a constitution which provides that "in all 
 cases where a general law can be made applicable, no 
 special law shall be enacted," the better view is, that it is 
 for the legislature to determine whether their purpose can 
 or cannot be expediently effected by a general law, and a 
 special act, as, for example, one providing for the location 
 of the county seat of a specified county, will not be held 
 invalid by the courts." 
 
 § 27. The constitutions of several of the states contain, 
 substantially, this provision, derived from the constitution 
 of New York: "It shall be the duty of the legislature to 
 provide for the organization of cities and incorporated vil- 
 lages, and to restrict their power of taxation, assessment, 
 "borrowing money, contracting , debts, and loaning their 
 credit, so as to prevent abuses in assessments, and in con- 
 tracting debts by such municipal corporations." ' This 
 obviously enjoins upon the legislature the duty of providing 
 suitable and proper restrictions' upon the enumerated 
 powers, but in what these restrictions shall consist, and how 
 they shall be imposed, are subjects left to the discretion or 
 sense of duty of the legislative department, with the exer- 
 cise of which the courts cannot interfere.' The Supreme 
 
 at least two-thirds of each house," the word house means the members 
 present doing business — these being a quorum — and not a majority of all 
 the members elected. Southworth v. Railroad Co., 3 Mich. 387. 
 
 ' State v. Johnson, 1 Kansas, 178, 1863; eonbra, ex parte Fritz, 9 Iowa, 
 30, 1859, where a special act amending the charter of a city was held in- 
 valid because all such laws were, by the constitution of the state, required 
 to be, and could be, made general. Von Phul ®. Hammer, 39 Iowa, 333. 
 It is for the legislature, and not the courts, to determine when a general 
 law can be made applicable. Gentile v. State, 39 Ind. 409, overruling 
 Thomas «. Board of Commissioners, 5 Ind. 4 ; Longworth's Executors «. 
 Evansville, 33 Ind. 333 ; Cooley Const. Lim. 139, note ; State ». County 
 Court, 50 Mo. 317, 1873; Murdock b. Woodson, 3 Dillon 0. C. 1873. 
 
 " New York constitution 1846, art. VIII. sec. 9 ; Wisconsin constitution 
 1848, art. XI. sec. 3; Michigan constitution 1859, art. XII. sec. 13; Oregon 
 constitution 1857, art. XL sec. 5 ; Kansas constitution 1859, art. XII. sec. 
 5; see Paine v. Spratley, 5 Kansas, 535; Nevada constitution 1864, art. 
 Vin. sec. 8; Nebraska constitution, art. VIII. sec. 4; California constitu- 
 tion 1849, sec. 37; Ohio constitution 1851, art. Xni. sec. 6. See, also, 
 chapters relating to Contracts and Taxation, post. 
 
 ' The failure of the legislature to perform the duty relative to restrict- 
 
Ch. m.] CEEATION OP PUBLIC CORPORATIONS. 135 
 
 Court of Wisconsin, in the case cited in the note, holds, to 
 some extent, a contrary view, but its judgment was, in 
 effect, although not in terms, overruled by the Supreme 
 Court of the United States, and in its full extent is not in 
 accord with the view elsewhere taken in the state courts.' 
 
 § 28. Many of the state constitutions contain, in sub- 
 stance, a provision that no legislative act shall embrace 
 more than one object, to be expressed in its title. This 
 provision has been frequently construed to require only the 
 general or ultimate object to be stated in the title, and not 
 the details by which the object is to be attained. Any pro- 
 
 ing the power of taxation, &c., enjoined by the constitutional provision 
 above cited, "may," says Sanney, J., in Hill ». Higdon, 5 Ohio St. 248, "be 
 of very serious import, but lays no foundation for judicial correction." See 
 Maloy V. Marietta, 11 Ohio St. 636, 638, ,where this view is left open, but 
 holding that the legislature alone has the power to determine the mode and 
 meamre of the restriction to be- imposed. It was also left open in the 
 People V. Mahaney, 13 Mich. 481, but this case illustrates what is a suffi- 
 cient restriction on the power of taxation to meet the constitutional require- 
 ment. See also Cooley Const. Lim. 518; Railroad Co. ®. Connelly, 10 Ohio 
 St. 165. To the effect that the constitutional provision quoted in the text 
 does not take away, but recognizes, the discretion of the legislature in con- 
 ferring powers of the enumerated character upon municipal corporations, 
 and that such discretion is not reviewable by the courts, see Bank of 
 Rome v. Rome, 18 N. T. 38, 1858; Benson «. Mayor, &c. of Albany, 34 
 Barb. 248, 1857; Clarke v. Rochester, 7J. 446; Grants. Courier, lb. 333. 
 
 ' Foster «. Kenosha, 13 Wis. 616, 1860. The legislature cannot, con- 
 sistently with this restriction, confer upon a municipal corporation an un- 
 limited power to levy taxes and raise money for extra-municipal purposes, 
 such aa aiding railroad companies, and an amendment to the charter of a 
 city authorizing its council ' ' to levy and collect special taxes for any pur- 
 pose (aside from what may be specially provided for in the city charter), 
 which may be considered essential to promote or secure the common inter- 
 ests of the city, or borrow, on the corporate credit of the city, any sum of 
 money at a rate of interest not exceeding ten per cent." on obtaining the 
 previous sanction of a majority of the voters of the city, is void, and the 
 requirement of the sanction of the voters is not a restriction on the power 
 to levy taxes or contract debts, within the meaning of the constitution, the 
 court being of opinion that the duty of imposing the limitation rests on the 
 legislature. li. But see Campbell v. Kenosha, 5 Wall. 194, 1866 ; City v. 
 Lamson, 9 Wall. 477, 1869 ; and the authorities cited in the last note. See 
 Rogan V. Watertown, 30 Wis. 359, 1873, as to loaning credit. 
 
 Other restrictions upon the power to contract debts : see chapters on 
 Charters and Contracts, post. 
 
136 MUNICIPAL C0KP0EATI0N8. [Ch. m. 
 
 vision calculated to carry the declared object into effect is 
 unobjectionable, although not specially indicated in the 
 title. Thus, where a constitution provides that no bill or 
 act shall pass containing any matter different from what is 
 expressed in the title thereof, an act, the title of which 
 declares it to he for the letter regulation of a certain town 
 (naming it), or to. amend or enlarge the powers of the cor- 
 poration thereof, is suffiient, without enumerating the par- 
 ticulars in which the powers are enlarged or extended.' So 
 a provision in an act entitled merely, " An act to amend the 
 act incorporating the city of M.," extending the city limits, 
 does not conflict with the constitutional requirement that 
 "every law shall embrace but one object, which shall be 
 expressed in its title."' 
 
 ' Green « Mayor, E. M. Charlt. (Geo.) 368, 1833, per Lam, J. ; Mayor ». 
 State, 4 Geo. 36 ; Hill ». Decatur, 33 Geo. 303. 
 
 " Morford «. Unger, 8 Iowa, 83, 1859; Davis «. "Woolnough (act estab- 
 lishing city court), 9 Ih. 104. 8. P. St. Paul v. Coulter, 13 Minn. 41, 50, 
 1866. In determining whether a law be in conflict with the provision of 
 the constitution, the nnity of the object is to be looked for in the ultimate 
 end to be attained, and not in the details leading to that end. State, &c. 
 «. Co. Judge, 3 Iowa, 380 ; People o. Mahaney, 13 Mich, 481, 1865 ; People 
 ®. Hurlburt, 34 Mich. 44, 1871. Construction of similar constitutional pro- 
 vision : Armault v. New Orleans, 11 La. An. 54 ; Eathman ». New Orleans, 
 lb. 145; People ». Mellen, 83 111. 181; Railroad Co. ®. Gregory, 15 111. 31; 
 Davis V. State (inspection act for Baltimore), 7 Md. 151; Annapolis ». State, 
 30 Md. 313 ; Lafou v. Dufrocq, 6 La. An. 350 ; Ottawa «. People, 48 111. 333, 
 1868 ; Miles «. Charleton, 39 Wis. 400, 1873 ; Murdock v. Woodson, 3 Dil- 
 lon C. C. B. 1873; Hubert «. People, 49 N. T. 133, 1873. 
 
Ch. IV.l EXTENT OF LEGISLATIVE COITTROL. I37 
 
 CHAPTER IV. 
 
 PijBLio AND Private Coepoeatio]S'S Distinguished — 
 Legislative Authobitt and its Limitations. 
 
 § 29. A fundamental dioision of corporations hereto- 
 fore adverted to, is into pvhlic and. private.' The import- 
 
 ' Ante, chapter U. In Milne v. Williams, 11 Ire. (Nor. Oar.) Law, 558, 
 1854, Pearson, J., commenting on the common divisions of corporations, 
 says: "The purpose in making all corporations is the accomplishment of 
 some public good. Hence, the division into public and private has a ten- 
 dency to confuse and lead to error in investigation ; for, unless the public 
 are to be benefited, it is no more lawful to confer ' exclusive rights and 
 privileges ' upon an artificial body, than upon a private citizen. The sub- 
 stantial distinction is this: Some corporations are created by the mere will 
 of the legislature, there being no other ^airfj' interested or concerned. To this 
 body a portion of the power of the legislature is delegated, to be exercised 
 for the public good, and subject at all times to be modified, changed, or an- 
 nulled. Other corporations are the result of contract. The legislature is 
 not the only party interested ; for, although it has a public puipose to be 
 accomplished, it chooses to do it by the instrumentality of a second party. 
 These two make a contract. The expectation of benefit to the public is the 
 moving consideration on one side; that of expected remuneration for the 
 outlay is the consideration on the other. It is a contract, and, therefore, 
 cannot be modified, changed, or annulled without the consent of both par- 
 ties. Counties are an instance of the former, railroad and turnpike com- 
 panies of the latter, class of corporations." This recognizes the substantial 
 difEerence between the two classes of corporations, and is, in effect, a criti- 
 cism upon the names by which they are distinguished. 
 
 According to the view of the supreme court of California, corporations 
 should be divided into three classes, to wit: Public municipal corporations, 
 the object of which is to promote the public interest ; corporations tech- 
 nically private, but of a quasi public character, having in view some public 
 enterprise in which the public interests are involved, such as railroad, turn- 
 pike, and canal companies; and corporations strictly private. Miner's 
 Ditch Company v. ZeUerbach, 87 Cal. 543, 1869. The opinion of Sawyer,C. 
 J., in this case, is able and instructive. The author prefers the ordinary 
 division of corporations into public (which includes municipal) and private. 
 See Foster v. Fowler, 60 Pa. St. 37, 1868, in which a company created to 
 supply a city with water was held to be a public, as distinguished from a 
 private corporation. 
 
138 MDOTCrPAL CORPORATIONS. [Oh. IV. 
 
 ance of this distinction cannot be too much, emphasized, 
 since upon it are based the legal principles which so broadly 
 distinguish the two classes of corporations. With private 
 corporations the present work has no other concern than to 
 point out wherein they differ from those which are public. 
 Both classes are alike created by the legislature, and in the 
 same way — by special charter or under general incorpora- 
 tion acts. Private corporatmns are created for private, as 
 distinguished from purely publie purposes, and they are 
 not, in contemplation of law, public because it may have 
 been supposed by the legislature that their establishment 
 would promote, either directly or consequentially, the pub- 
 lic interest. They cannot be compelled to accept a charter 
 or incorporating act. The assent of the corporation is 
 necessary to make the incorporating statute operative. But 
 when assented to, the legislative grant is irrevocable, and it 
 cannot, without the consent of the corporation, be impaired 
 or destroyed by any subsequent act of legislation, unless 
 the right to do so was reserved at the time. - The celebrated 
 Dartmouth College Case, by its construction of the federal 
 constitution, incorporated, wisely or otherwise, into Ameri- 
 can jurisprudence, the principle which has been attended 
 with such important practical consequences, namely, that 
 privileges and franchises granted by legislative act to a pri- 
 vate corporation, when accepted, constitute a contract 
 within the meaning of the clause of the constitution which 
 secures the inviolability of contracts by declaring that no 
 state shall pass any law impairing their obligation ; and 
 hence a law materially altering the charter of such a corpo- 
 ration is unconstitutional, unless the power to alter it was 
 reserved when the grant was made. 
 
 § 30. Public corporations are called into being at the 
 pleasure of the state, and whUe the state may, it need not, 
 obtain the consent of the people of the locality to be affected. 
 The charter or incorporating act of a municipal corporation 
 is in no sense a contract between the state and the corpora- 
 tion, although, as we shall presently see, vested rights in 
 favor of third persons, if not, indeed, in favor of the corpo- 
 ration, may arise under it. Public corporations within the 
 meaning of this rule are such as are established for public 
 
Ch. rV.] EXTENT OF LEGISLATIVE CONTROL. 139 
 
 piirposes exclusively — that is, for purposes connected with 
 the administration of civil or local government — and corpo- 
 rations are public only when, in the language of Chief 
 J nstice Marshall, '■HTie whole interests and franchises are 
 the exclusive property and domain of the government 
 itself," such as quasi corporations (so called), counties and 
 towns or cities upon which are conferred the powers of 
 local administration. With the exception of certain consti- 
 tutional limitations presently to be noticed, the power of 
 the legislature over such corporations is supreme and tran- 
 scendent : it may erect, change, divide, and eren abolish 
 them, at pleasure, as it deems the public good to require.' 
 
 •Dartmouth College «. Woodward, 4 Wheat. 518, 1819; Allen v 
 McKean, 1 Sumner, 276, 1833 (the Bowdoin College Case elaborately con 
 sidered by Sixyry, J.); People ». Morris, 13 Wend. 325, 1835. In this case 
 the defendant insisted that the rights and privileges conferred upon th« 
 village of Ogdensburg by the act incorporating it were vested rights, and 
 could not be impaired by subsequent legislation. But, said Nelson, J., 
 with his usual clearness : " 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." S. P. Penob- 
 scot Boom Corporation e. Lawson, 16 Maine, 224 ; Yarmouth «. North Yar- 
 mouth, 34 Maine, 411, 1852; Story Com. Const., sees. 1385, 1388; North 
 Yarmouth a. SkilUngs, 45 Maine, 133, 1858 ; Girard ®. Philadelphia, 7 Wall. 
 1, 1868; ante, § 9; Jersey City ». Railroad Co., 20 N. J. Eq. 360. "A 
 municipal corporation, in which is vested some portion of the administra- 
 tion of the government, may be changed at the will of the legislature. 
 Such is a public corporation, used for public purposes." Per McLean, J., 
 in State Bank ®. Knoop, 16 How. U. S. 369, 380, 1853. "Public or muni- 
 cipal corporations are established for the local government of towns or par- 
 ticular districts. The special powers conferred upon them are not vested 
 rights as against the state, but, being wholly political, exist only during the 
 will of the general legislature ; otherwise, there would be numberless petty 
 governments existing within the state and forming part of it, but independ- 
 ent of the control of the sovereign power. Such powers may at any time 
 be repealed or abrogated by the legislature, either by a general law operat- 
 ing upon the whole state, or by a special act altering the powers of the 
 corporation." Sloan v. State (implied modification of charter as to vending 
 liquor by subsequent general law), 8 Blackf. (Ind.) 361, 1847, per Smith, J. ; 
 approving People v, Morris, 13 Wend. 325 ; Armstrong v. Commissioners 
 (as to removal of county seat), 4 Blackf. (Ind.) 208, 1836 ; Post, sec. 35. 
 
 In the recent case of the United States v. The Baltimore & Ohio Rail- 
 road Company, decided by the United States Supreme Court, December 
 Term, 1873, in which it was held that the general government could not 
 tax the income or property of the City of Baltimore under the Internal 
 
140 MUNICIPAL CORPOKATIONS. [Ch. IV. 
 
 And it may be here observed that the extent of the legisla- 
 tive control over public or municipal corporations is not 
 impaired by the circumstance that the charter is granted in 
 the same act that creates a private corporation, whose rights 
 cannot be changed without their consent.' Where, in in- 
 
 Eevenue Act (Post, sec. 615 a), the court discuss and examine the nature of 
 municipal corporations and the relation they sustain to the state, of which 
 they are treated as arms or agencies. The court say: "A municipal corpo- 
 ration lilie the City of Baltimore is a Representative not only of the state, 
 but is a portion of its governmental power. It is one of its creatures, made 
 for a specific purpose, to exercise within a limited sphere the powers of the 
 state. The state may withdraw these local powers of government at 
 pleasure, and may, through its legislature or other appointed channels, 
 govern the local territory as it governs the state at large. It may enlarge 
 or contract its powers or destroy its existence. As a portion of the state, 
 in the exercise of a limited portion of the powers of the state, its revenues, 
 like those of the state, are iiot subject to taxation." Post, sees. 64, 614. 
 
 As to extent of legislative control, and the distinction between public and 
 private corporations, see, also, People v. "Wren (division of a county), 4 
 Scam. (111.) 273 ; Coles ». Madison County, Breese (111.) 120 ; Bush v. Ship- 
 man, 4 Scam. (111.) 190; Holliday «. People, 5 Gilm. (111.) 216; Richland 
 County ®. Lawrence County, 13 HI. 8 ; Trustees, &c. v. Tatman, 13 111. 80 ; 
 Gutzweller ®. People, 14 111. 143; State «. Mayor, R. M. Charlt. (Geo.). 350; 
 State, &c. V. St. Louis County Court, 34 Mo. 546 ; Purdy «. People, 4 Hill 
 (N. T.) 385 ; Morey ». Newf ane, 8 Barb. 645 ; Lloyd v. Mayor, &c. of Kew 
 York, 5 N. Y. (1 Seld.) 369; Lowler v. Same, 7 Abb. Pr. R. 348; Green v. 
 Same, 5 lb. 503 ; Aurora v. West, 9 Ind. 74 ; Plymouth v. Jackson, 15 Pa. 
 St. 44; Louisville ». Commonwealth, 1 Duvall (Ky.) 395; O'Hara o. Port- 
 land, 3 Oregon, 635 ; Gray v. Brooklyn, 10 Abb. (N. Y.) Pr. Rep. N. S. 
 186; State v. Hundelhausen, 36 Wis. 483, 1870; Tinsman «. Railroad Com- 
 pany, 3 Dutch. (K J.) 148 ; Marietta ». Peaiing, 4 Ohio, 427 ; Richmond ®. 
 Richmond, &c. R. R. Co., 31 Gratt. (Va.) 604, 1873 ; State ®. Mayor, &o. 
 24 Ala. 701 ; Governor ». McEwen, 5 Humph. (Tenn.) 241 ; Grogan v. San 
 Francisco, 18 Cal. 590; Darlington v. Mayor, &c. of New York, 81 N. Y. 
 164; Savings Fund Society ». Philadelphia, 31 Pa. St. 175, 185; Philadel- 
 phia «. Field, 58 Pa. St. 330; Erie «. Canal Company, 59 Pa. St. 174; 
 Dunsmore'a Appeal, 53 Pa. St. 374 ; Blanding v. Burr, 13 Cal. 343, 1859 ; 
 Peoples. HiU, 7 Cal. 97, 1857; Bums v. Clarion County, 62 Pa. St. 433, 
 1869; Durach's Appeal, lb. 491 ; New Orleans ». Hoyle, 23 La. An. 740. 
 
 This subject is discussed in an interesting manner by Sha^swood, J., in 
 his learned judgment, in Philadelphia v. Fox, 64 Pa. St. 169, 1870. The 
 doctrine is here laid down that since the legislature cannot alienate any 
 part of its legislative power, it cannot therefore by legislative act or con- 
 tract invest any municipal corporation with an irrevocable franchise of 
 government over any part of its territory. lb. 181 ; Post, sees. 37, 437. 
 
 ' Patterson v. Society, &c., 4 Zabr. (N. J.) 385, 1854. See, also, Balti- 
 more ». Board of PoUce, 15 Md. 376, 1859. 
 
Ch. IV.] EXTENT OP LEGISLATIVE CONTROL. 141 
 
 corporating a gas ' company, tlie legislature reserved the 
 power to alter, modify, or repeal the charter, it is com- 
 petent for it, by subsequent legislation, to subject the com- 
 pany to supervision and control, and to confer the power 
 upon the municipal corporation in which the works of the 
 company are erected to regulate the price of gas, and or- 
 dinances dul;^ passed in pursuance of such power are bind- 
 ing upon the company.* 
 
 § 31. Some of the leading differences heretofore gener- 
 ally recognized between public and private corporations 
 are well illustrated and clearly stated in a case decided 
 in New Jersey. In an action by a riparian proprietoj 
 against a canal company, for obstructing a watercourse, 
 the company insisted that it was not liable, because the 
 work was authorized by its charter ; that the acts it did 
 were legal ; that the injury complained of was conse- 
 quential ; that the enterprise was a public work, designed 
 for public purposes, and that the company, in executing 
 it, acted as the public agents of the state. But the court 
 held that the company was not a public corporation. On 
 this point Nevius, J., the organ of the court, observed : 
 "Public corporations are political corporations, or such as 
 are founded wholly for public purposes, and the whole in- 
 terest in which is in the public. The fact of the public 
 having an interest in the works or the property or the ob- 
 ject of a corporation, does not make it a public corporation. 
 All corporations, whether public or private, are, in con- 
 templation of law, founded upon the principle that they 
 will promote the interest or convenience of the public. A 
 bank is a private corporation, yet it is, in the eye of the 
 law, designed for public benefit. A turnpike or a canal 
 company is a private company, yet the pubUo have an in- 
 terest in the use of their works, subject to such tolls and 
 restrictions as the charter has imposed. The interest, there- 
 fore, which the public may have in the property or in the 
 objects of a corporation, whether direct or incidental (un- 
 less it has the whole interest), does not determine its char- 
 
 ' state V. Cincinnati Gas Conipany, 18 Ohio St. 362, 1868. See, also, 
 Narwicb Gaslight Company v. Norwich City Gas Company, 25 Conn. 19, 
 1856 ; State s. Milwaukee Gas Light Company, 29 "Wis. 454, 1873. 
 
143 MUNICIPAL CORPOEATIONS, [Ch. IV. 
 
 aoter as a public or private corporation. In tlie present 
 dase, whatever may have been the objects of the corporation, 
 whether to erect a public navigable highway, or to improve 
 the navigation of the Earitan river, or whether the public 
 have a right to the use and enjoyment of these improve- 
 ments, when made, or not, the company are essentially a 
 private company, and are not [in the sense which will con- 
 fer the state's exemption from liability,] the agents of the 
 state. Their works are not constructed by the requiremenl 
 of the state, nor at the expense of the state, nor does the 
 stock belong to the state, nor is the state answerable for the 
 lands or materials used in the construction of these works, 
 or responsible for the debts of the company, or for injuries 
 committed by them in the execution of their work. The 
 state could not compel the company to construct this canal 
 or improve the navigation of the river ; it has permitted 
 them to do so at their Own req[uest. The company might 
 have abandoned the work whenever they saw fit ; they may 
 now abandon it without responsibility to the state. The 
 corporation itself, the property of the corporation, the ob- 
 ject of the corporation are essentially private, subject only 
 to public use, under their own restrictions, and from which 
 use, the company are to derive the profits." ' 
 
 ' Nevius, J., Ten Eyck v. Canal Company, 3 Harrison (N. J.) 300, 203, 
 1841 ; approved, Hanson v. Vernon, 37 Iowa, 38, 53, 1869. 
 
 In an elaborate and well-considered opinion, in whicli the court of ap- 
 peals of Maryland held the regents of the university of that state to be a 
 private corporation, though its ends were public, Buchanan, C. J., delivering 
 the judgment of the court, thus defines a public corporation : "A public cor- 
 poration is one that is created for political purposes, with political powers, 
 to be exercised for purposes connected with the public good in the admin- 
 istration of civil government ; an instrument of the government subject to 
 the control of the legislature and its members, ofBoers of the government, 
 for the administration or discharge of public duties, as in the cases of cities, 
 towns, &c. ; so where a bank is created by the government for its own uses, 
 and the stock belongs exclusively to the government, it is a public corpora- 
 tion; and so of a hospital created and endowed by a government for 
 general purposes of charity." Eegents of University*. Williams, 9 Gill & 
 Johns. (Md.) 365, 397, 1838. See, also, Norris v. Trustees, 7 Gill & 
 Johns. 7. 
 
 Speaking of public corporations, and the relations they sustain to the 
 state, the supreme court of Louisiana uses this language : ' ' The government 
 of cities and towns, like that of the police jury of parishes (counties), forms 
 
Ch. IV.] EXTENT OF LEGISLATIVE CONTROL, 143 
 
 § 32. The adjudged cases present some contrariety of 
 opinion respecting the scope of legislative authority over 
 municipal corporations, or rather, respecting the question 
 how far such corporations, viewed as legal personalities, 
 are within the operation or protection of the usual constitu- 
 tional restraints upon legislative power. The present chap- 
 ter will be devoted to a consideration of this subject, and it 
 can, perhaps, be most satisfactorily presented by viewing it 
 in the light of actual adjudications, accompanied with such 
 observations and comment as seem to be suitable and neces- 
 sary. The extent of the ,authority of the legislature over 
 public corporations is strikingly illustrated by an important 
 case decided by the court of appeals in the state of Mary- 
 land. The legislature in incorporating a railroad company 
 made it its duty to locate its road through three towns 
 specially named, and provided, that if it failed to do so, 
 "then and in that case said company shall forfeit $1,000,000 
 to the state of Maryland for the use of Washington 
 county y The action was instituted for the benefit of the 
 
 one of the subdivisions of the internal administration of the state, and ia 
 absolutely under the control of the legislature. The laws which establish 
 and regulate municipal corporations are not contracts, but ordinary acts of 
 legislation, and the powers they confer are nothing more than mandates of 
 the sovereign power, and those laws may be repealed or altered at the will 
 of ^he legislature, except so far as the repeal or change may affect the rights 
 of third persons acquired under them." Police Jury v. Shreveport (repeal 
 of corporation ferry right), 5 La. An. 661, 1850 ; State Bank ». Navigation 
 Company (construction of charter), 3 Ih. 294, 1848; Reynolds v. Baldwin, 
 1 11. 163; HaynesD. Municipality, 5 Ih. 760; Edgerton ®. Municipality, 1 
 11. 435; Board o. Municipality, 6 IK 21, 1851. 
 
 In the opinion of the supreme court of the United States, holding that 
 the legislature of a state might lawfully repeal or discontinue a ferry fran- 
 chise granted to a municipal corporation, it is remarked that towns and 
 cities, " which are public municipal and political bodies, are incorporated 
 for public, and not private, objects. They are allowed to hold privileges 
 or property only for public purposes. The members are not shareholders, 
 nor joint partners in any corporate estate, which they can sell or devise to 
 others, or which can be attached or levied on for their debts. Hence, gen- 
 erally, the doings between them and the legislature are in the nature of 
 legislation rather than compact, and subject to aU the legislative condi- 
 tions named, and, therefore, to be considered as not violated by subse- 
 quent legislative changes." Per Woodbwry, J., in East Hartford ». Hart- 
 ford Company, 10 How. (U. 8.) 511, 531, 1850. See, also, Trustees v. Tat- 
 man, 18 111. 30 ; New Orleans «. Hoyle, 23 La. An. 740. 
 
144 MUNICIPAL CORPORATIONS. [Ch. IV. 
 
 county to recover the one million dollars, it being alleged 
 that the defendant had not constructed its road in the man- 
 ner required. The defendant pleaded that since the last 
 continuance the legislature had passed an act repealing that 
 portion of the charter of the company requiring it to build 
 its road through said towns, and specially remitting and 
 releasing the forfeiture of $1,000,000. The leading ques- 
 tion, which was argued on either side by distinguished 
 counsel, was, whether the ' provision in favor of the county 
 was one of contract (the railroad company having assented 
 to the act), and hence claimed to be inviolable by legis- 
 lative interference, or whether it was one of penalty, 
 and therefore subject to unlimited legislative control. The 
 court held the latter view to be the true one, and that the 
 defendant was not liable. The court also expressed the 
 opinion that if At should be treated as a contract made by 
 the state, yet it was a contract for the benefit of one of its 
 counties, to which the money, if collected, would belong, in 
 its political and public capacity, as part of the state, and 
 that such a contract did not come within the meaning of 
 that provision of the national constitution which prohibits a 
 state from impairing the obligation of a contract, so as to 
 prevent the legislature from releasing it at pleasure, or dis- 
 continuing an action brought for its enforcement in the 
 name of the state.' 
 
 § 33. Questions have arisen under special constitutional 
 provisions respecting the authority of the legislature over 
 municipal offices and officers. And here it is important to 
 bear in mind the distinction between state officers — that is, 
 officers whose duties concern the state at large, or the gen- 
 eral public, although exercised within defined territorial 
 limits — and municipal officers, whose functions relate ex- 
 clusively to the particular municipality. The administra- 
 
 ' State V. Railroad Co. 13 Gill & Johns. (Md.) 399, 1843; affiimed on 
 error, 3 How. (U. S.) 634, 1844. 
 
 A public corporation has no vested right to fines directed to be paid to 
 it, and the legislature may release them. No contract in such cases is 
 thereby violated, for none exists. Coles ». Madison County, Breese (IlL) 
 115; Holliday v. People, 5 Gilm. (111.) 316; Conner ». Bent, 1 Mo. 335; 
 Rankin «. Beaird, Breese (111.) 133. Effect of executive pardon on fines 
 going to county, Holliday «. People, 5 Gilm. (111.) 316. 
 
• Ch. rV.] EXTENT OF LEGISLATIVE CONTROL. 14B 
 
 tion of justice, tlie preservation of the public peace, and the 
 like, although confided to local agencies, are essentially 
 matters of public concern ; while the enforcement of mu- 
 nicipal by-laws proper, the establishment of gas works, of 
 water works, the construction of sewers, and the like, are 
 matters which pertain to the municipality, as distinguished 
 from the state at large.' The constitution of Michigan 
 enjoined upon the legislature to ' ' provide for the incorpora- 
 tion and organization of cities and villages ;" gave it 
 authority to confer upon them such powers of a local legis- 
 lative and administrative character as it should deem 
 proper, and contained the further provision that "judicial 
 officers of cities and villages shall be elected, and all other 
 [municipal] officers shall be elected, or appointed, at such 
 time and in such manner as the legislature may direct;" 
 and it was held by the Supreme Court of the state, in a 
 cause that underwent great consideration, and in which the 
 judges delivered separate opinions, that while the legislature 
 was left free to appoint officers not municipal, such, for 
 example, as a board of police commissioners in and for a 
 city, yet that it was restrained by the above-mentioned 
 provisions, especially by the one last quoted, from itself 
 directly appointing municipal officers, whose duties and 
 authority were plainly and exclusively local, such as the 
 board of water commissioners and board of sewer commis- 
 sioners for a particular city." 
 
 ■ People «. Hurlburt, 34 Mich. 44, 1871. The distinction mentioned in 
 in the text is there accurately drawn, and clearly stated and illustrated in 
 the admirable opinion of Oa/mpbell, 0. J. Ante, sees. 10, 11. See chapter 
 on Corporate Officers, poet, sees. 772, 803. 
 
 ' People V. Hurlburt, supra, distinguished from People «. Mahaney, 18 
 Mich. 481 ; ante, sec. 9, and notes. So, under the constitution of Kentucky, 
 which contains a provision that " officers of towns and cities shall be elected 
 for such terms, and in such manner, and with such qualifications, as may 
 be prescribed by law," and " shall reside within their respectiYC districts," 
 it was held that the legislature could not authorize the governor to appoint 
 municipal officers, since the constitution requires that they shall be elected 
 by the voters of the town or city (Speed «. Crawford, 8 Met. [Ky. ] 207, 1860), 
 but it was also likewise held that it was within the power of the legislature 
 to pass an act depriving the mayor and council of a designated city of the 
 power to elect the police force thereof, and establishing, instead, a loa/rd oj 
 poUee for the city, and the county in which the city was situate, to be elected 
 10 
 
146 MUNICIPAL CORPORATIONS. [Ch. IV. 
 
 § 84. And it has elsewhere been several times deter 
 mined that the legislature may, unless specially restricted 
 in the constitntion, tate from a municipal corporation its 
 charter powers respecting the police and their appointment, 
 and by statute itself directly provide for a permanent police 
 for the corporation, under the control of a board of police, 
 not appointed or elected by the corporate authorities, but 
 consisting of commissioners named and appointed by the 
 legislature. And a provision in %uch a law, transferring 
 to such commissioners, for the purposes of the new police, 
 the use of the police telegraph, station-houses, watch- 
 boxes, &c., provided by the corporation, is valid, since it 
 only takes city property dedicated to a particular use, and 
 applies it to the same purpose, changing only the agency by 
 which the use is directed; the property is still the city's.' 
 
 by the qualified voters of the city and county, and that this board, thus 
 elected, should select and enroll the permanent police force of the city, which, 
 it was provided, should be taxed to pay theta. Police Commissioners ®. 
 Louisville, 3 Bush (Ky.) 697, 1868. See Richmond Mayoralty Case, 19 
 Gratt. (Va.) 673. 
 
 ' Baltimore ». Board of Police (afBrming validity to the Baltimore Police 
 Bill), 15 Md. 376, 1859. There is nothing in the maxim that "Taxation 
 and representation go together," that can preclude the legislature from es- 
 tablishing, in a city, a metropolitan police board, with power to estimate 
 the expenses of the police, ^nd compelling the city authorities to raise, by 
 taxation, the amount so estimated. Every city is represented in the state 
 legislature, and it is for that body to determine how much power shall be 
 conferred by the municipal charters which it grants. People v. Mahaney, 
 13 Mich. 481 ; see, also, same principle, People v. Draper, 15 N. T. 532, 
 1857, where the act to establish the metropolitan police district was held 
 constitutional; Police Commissioners ®. Louisville, 3 Bush. 597; Diamond i). 
 Cain, 31 La. An. 309, 1869 ; State ®. Leovy, lb. 638. The ease.s concur in 
 holding that police officers are, in fact, state officers, and not municipal, 
 although a particular city or town be taxed to pay them. Post, sec. 778. 
 An act which makes the mayor and aldermen of a corporation commission- 
 ers of the court-house and jail may be repealed by the legislature, and 
 these buildings placed under the control of county or other officers. State 
 ». Mayor, R. M. Charlt. (Geo.) 250; see, also, State «. Dews, lb. 397. A 
 grant to a city to aid in building court-house, and for educational purposes, 
 is subject, until executed, to legislative resumption and control. Bass ®. 
 Fontleroy, 11 Texas, 698. 
 
 The management and mode of electing trustees of an ineorporated 
 academy, which is endowed entvrely by the state, may be changed by the 
 legislature at its pleasure. Dart o. Houston, 33 Geo. 506 ; see, also, TJni- 
 
Oh. IV.] EXTENT OP LEGISLATIVE CONTEOL. 147 
 
 So in the absence of special restriction it is constitutionally 
 competent, likewise, to the legislature of a state to direct 
 that the county shall pay a portion of the expenses of a 
 police force in a city situated wholly within, and forming 
 part of, the county. It may even direct a county to appro- 
 priate part of its revenue already collected in this way, since 
 such legislation is not unconstitutional, as being retrospec- 
 tive in its operation, or as taking away vested rights, or 
 impairing the obligation of contracts, or violating the princi- 
 ples of taxation. As moneys acquired by taxation are not 
 strictly the private property of the county, such legislation 
 is not the application of private property to public use 
 without compensation, since the police board, by virtue of 
 the act creating it, was an agency of the state government 
 and performed public duties.' 
 
 § 35. The legitimate authority of the legislature over 
 municipal corporations extends to making provisions con- 
 cerning Va.Qvc fumds and revenues, and the authority is not 
 abridged because the purpose to which the revenue is to be 
 
 versity of North Carolina v. Maultsby, 8 Ire. Eq. 357 ; University of Ala- 
 bama B. Winston, 5 Stew. & Port. 17 ; Louisville «. University of Louisville, 
 15 B. Mon. 645; Visitors, &c. v. State, 15 Md. 330. 
 
 ' State ex rel. St. Louis Police Commissioners «. St. Louis County Court 
 (mandamus), 34 Mo. 546, 1864; coreira. Mayor, &o. ». Tows, 5 Sneed (Tenn.) 
 186. The view of the Supreme Court of Missouri is undoubtedly the cor- 
 rect one. Approved, St. Louis «. Shields, Supreme Court, Missouri, March, 
 1878. 
 
 The maintenance of a police force may be committed to the corporate 
 authorities of a municipality, and if there are no special constitutional re- 
 strictions on the power of the legislature, it may authorize the assessment 
 of a tax upon the keepers of saloons and restaurants in the municipality for 
 the purpose of maintaining such police force therein, to be levied and col- 
 lected as other taxes. Durach's Appeal, 63 Pa. St. 491, 1869 ; Post, sees 
 593, 594, 633; Eailroad Company «. Adler, 56 111. 344, 1870. 
 
 Behool districts being public corporations, under legislative control, a 
 law providing that school debts might be paid in bills of the state bank of 
 the state, is valid as against the objection that the legislature had no power 
 to direct that anything except gold and silver should be received in pay- 
 ment of debts. Bush 11. Shipman, 4 Scam. (HI.) 190. 
 
 A municipal corporation may constitutionally be exempted from pro- 
 spective liability for nonfeasance of its officers or liability for torts. Gray 
 ». Brooklyn, 10 Abb. Pr. R. N. S. 186; post, se&. 760. 
 
148 MUNICIPAL CORPORATIONS. [Ch. IV. 
 
 appropriated is specified in the charter, and the ground of 
 the doctrine ia, that such corporations have no vested rights 
 in powers conferred upon them for civil, political, or admin- 
 istrative purposes. Thus, the legislature may repeal the 
 power it had given to cities to grant licenses for the sale of 
 intoxicating liquors, although the money to be derived from 
 the sale of such licenses was directed to be appropriated to 
 the support of paupers within the citv.' Such an authority, 
 it was remarked, "gives the city no more a vested right to 
 issue licenses, because the legislature specified the objects to 
 which the money should be applied, than if it had been put 
 into the general fund of the city." " 
 
 § 36. Legislative acts respecting municipal corporations 
 not being in the nature of contracts, the provisions thereof 
 may be changed at pleasure where the constitutional rights 
 of creditors and others are not invaded. By act of the leg- 
 
 • Gutzweller ®. People, 14 HI. 143, 1853. AnU, sec. 30, note. 
 
 ' Gutzweller «. People, 14 HI. 143, 1853, per Oaton, J. See, also, Rich- 
 land Co. v. Lawrence Co., 13 111. 1. 1850; People ». Power, 35 111. 187; 
 Richmond «. Richmond, &c. R. R. Co. 31 Gratt. (Va.) 604, 1873, holding 
 that the state may exempt property from municipal taxation. By the 
 charter of a municipal corporation there was granted to it sole power to 
 grant licenses to sell spirituous liquors withia its limits, and to appropriate 
 the money arising therefrom to city purposes. Subsequently the legislature 
 passed an act directing the money thus arising to be paid by the corpora- 
 tion to an academy located within the town. The municipal corporation 
 refused to pay over to the academy an amount received for licenses after the 
 passage of the last named act, and the academy brought an action to re- 
 cover it. The court held the subsequent act to be unconstitutional, and 
 that the town was not liable. The court were of opinion, that, by its 
 charter, the town had a vested right in the profits arising from licenses. 
 It admitted that the legislature might altogether take away from the town 
 the power to grant licenses; but if it allowed the power to remain, it 
 denied the right of the legislature " to make a dififerent disposition of the 
 funds arising from such licenses, from that contained in the charter, unless 
 with the consent of the corporation." Trustees of Aberdeen Academy v. 
 Aberdeen, 13 Sm. & Marsh. (Miss.) 645, 1850. See, also, Aberdeen v. Saun- 
 derson, 8 J5. 663. The doctrine that the town corporation had a vested 
 right in profits arising from licenses, cannot, we think, be sustained, and ia 
 not in harmony with the decisions elsewhere. 
 
 County and townahi/p funds are under legislative control. County b. 
 State, 11 HI. 303 ; County ®. County, 13 111. 1 ; Dennis v. Maynard, 15 UL 
 477 ; Love v. Schenck, 13 Ire! Law, 304 ; Love «. Ramsour, lb. 338. 
 
Ch. rv.] EXTENT OF LEGISLATIVE CONTROL. 149 
 
 islature the separate city of Lafayette was added to and 
 incorporated with the city of New Orleans, with a provision 
 that the added district, which was less in debt than the city 
 of New Orleans, should be charged only with its own debts ; 
 and by a subsequent act of the legislature it was provided 
 that taxes should be equal and uniform throughout the 
 entire limits of the city, the effect of which was to increase 
 the amount of taxes to be raised within that portion of the 
 corporation which was formerly the city of Lafayette. A 
 bill was filed by residents and property owners of the an- 
 nexed district to enjoin the collection of the excess of taxes 
 beyond the amount fixed by the act incorporating the an- 
 nexed district into the "old city," claiming that the act 
 was a contract, and the levy of taxes under the latter act, so 
 far as regards debts due antecedently to the annexation, 
 violated the vested rights of the inhabitants of the annexed 
 district. The Supreme Court, on the ground that public 
 corporations are wholly under the control of the legislature, 
 which has the power to provide in what manner taxes shall 
 be levied for their support, and how their debts shall be 
 paid on their dissolution, held the act authorizing increased 
 taxation to be valid, and dismissed the bill.' 
 
 § 37. The power of the legislature to alter and abolish 
 municipal corporations, to erect new corporations in the 
 place of the old, to add to the old, or to carve out of the old 
 a new corporation, or the power to divide and dispose of 
 the property held by such corporations for municipal pur- 
 poses, is not defeated or affected by the circumstance that 
 the corporation is, by its charter, made the trustee of a 
 charity, or of other private rights and interests. Where 
 the legal existence of the municipal trustee is destroyed by 
 legislative act, the" Court of Chancery will assume the exe- 
 cution of the trust, and, if necessary, will appoint new trus- 
 tees to take charge of the property and carry into effect the 
 trust." 
 
 ' Layton «. New Orleans, 13 La. An. 515, 1857. See, also, Girard «. 
 Philadelphia, 7 Wall. 1, 1868; People 0. Hill, 7 Cal. 97, 1857; poit, chap 
 Vm; State v. Flanders, 34 La. An. 57. 
 
 « Girard «. Philadelphia, 7 "Wall. 1, 1868; Philadelphia 0. Pox, 64 Pa. 
 St. 169, 1870; Montpelier«. Bast Montpelier (division of town and contest 
 as to trust property held for the benefit of the inhabitants of the original 
 
150 MUNICIPAL CORPORATIONS. [Oh. IV. 
 
 § 38. The supremacy of the legislative authority over 
 municipal corporations is not, however, in all respects, un- 
 limited ; but the limitations must be sought either in the 
 national or state constitution, and if not there found, in 
 terms, or by fair implication, they do not exist. In Eng- 
 land, it is settled that the crown has no power, without the 
 consent of those to be affected thereby, to alter or abolish mu- 
 nicipal chartersj'or to impose new^ones on the corporation. 
 But parliament may create new corporations, or abolish or 
 alter charters, or impose new ones, at its will, and without 
 the consent of the inhabitants. And so may the state legis- 
 latures in this country, if there be no special constitutional 
 restriction, as generally there is not, upon the power.' 
 
 § 39. It may assist to an understanding of the extent of 
 legislative power over municipal corporations proper (incor- 
 porated towns and cities) to observe, that these, as ordi- 
 narily constituted, possess, according to many courts, a 
 double character — the one gooernmental, legislative, or 
 publie; the other, in a sense, proprietary or private. The 
 distinction between these, though sometimes difficult to 
 trace, is highly important, and is frequently referred to, 
 particularly in the cases relating to the implied or common 
 law liability of municipal corporations for the negligence of 
 their servants, agents, or officers in the execution of corpo- 
 rate duties and powers. On this distinction, indeed, rests 
 the doctrine of such implied liability.' In its governmental 
 
 township), 39 Vermont (3 Wms.) 12, 1856; same controversy at law, -27 
 Vermont, 704. See infra, sec. 47, and chapters on Corporate Property and 
 Remedies against Illegal Corporate Acts, post. 
 
 '. St. Louis ■». Allen (extension of city limits), 13 Mo. 400, 1850 ; St. 
 Louis V. Russell, 9 Mo. 503, 1845. It is justly observed, that " Most, if not 
 all, of the leading cases in the books, involving the question of the inviola- 
 bility of municipal charters, in the English courts, arose between the pre- 
 rogatwe of the crown and the corporation. The right or power oi parliament 
 in England, or of the legislature here, would present (and was decided to 
 present) quite a different question." Per Nelson, J., in People v. Morris, 
 13 Wend. 335, 384, 1885 ; Philadelphia v. Field, 58 Pa. St. 820, 1868. 
 
 ' Ante, sees. 10, 11. "The distinction is well established between ithe 
 responsibilities of towns and cities for acts done in theii public capacity, in 
 the discharge of duties imposed on them by the legislature for the public 
 benefit, and for acts done in what may be called their private diaracter, .n 
 
Oh. IV.] CREATION OF PUBLIC CORPORATIONS. 151 
 
 or pablio character, the corporation is made, by the state, 
 one of its instruments, or the local depositary of certain 
 limited and prescribed political powers, to be exercised for 
 the public good, on behalf of the state, and not for itself. 
 In this respect it is assimilated, in its nature and functions, 
 to a county corporation, which, as we have seen, is purely 
 part of the governmental machinery of the sovereignty 
 which creates it. Over all its civil, political, or govern- 
 mental powers, the authority of the legislature is, in the 
 nature of things, supreme and without limitation, anless 
 the limitation is found in some peculiar provision of the 
 constitution of the particular state. But in its proprietary 
 or private character, the theory is, that the powers are sup- 
 posed not to be conferred, primarily or chiefly, from con- 
 siderations connected with the government of the state at 
 large, but for the private advantage of the particular corpo- 
 ration as a distinct legal personality, and as to such 
 powers, and to property acquired thereunder, and contracts 
 made with reference thereto, the corporation is to be re- 
 garded as qiM ad hoc a private corporation, or, at leastj not 
 public in the sense that the power of the legislature over it 
 is omnipotent.' 
 
 the management of property and rights voluntarily held by them for their 
 own immediate profit or advantage, as a corporation, although inuriag, of 
 course, ultimately to the benefit of the public." Per Oray, J., In Oliver s. 
 Worcester, 103 Mass. 489, 499, 1869; S. P. Detroit ». Corey, 9 Mich. 165, 
 184, 1861. In the one case, no private action lies unless it be- expressly 
 given; in the other, there is an implied or common law liability for the 
 negligence of their officers in the discharge of such duties. In further 
 illustration of this alleged dual character, the reader is referred to the cases 
 cited in the next note. Post, §§ 761, 778, 779. 
 
 ' West. Sav. Fund Soc. v. Philadelphia, 31 Pa. St. 175; Ih. 185; Bailey 
 e. Mayor, &c. of New York, 3 Hill, 531 ; Small v. Danville, 51 Maine, 359 ; 
 Jones ». New Haven, 34 Conn. 1 ; Western College v. Cleveland, 13 Ohio 
 St. 375, 1861 ; Howe «). New Orleans, 13 La. An. 481 ; Martin «. Mayor, &c. 
 1 Hill, 545; Buttrick v. Lowell, 1 Allen, 173; Oliver «. Worcester, 103 
 Mass. 489, 1869 ; Touchard v. Touchard, 5 Cal. 306 ; Gas Co. ■». San Fran- 
 cisco, 9 Cal. 453; Commissioners «. Duckett, 30 Md. 468; Weet «. Brook- 
 port, 16 N. Y. 161, note; Louisville v. University of Louisville, 15 B. Mon. 
 643; Louisville v. Commonwealth, 1 Duvall (Ky.) 395; Weightman «. 
 Washington, 1 Black (U. S.) 39, 1861; Reading ». Commonwealth, 11 Pa 
 St. 196, 1849; Richmond v. Long's Admr., 17 Gtratt. (Va.) 375; De Voss a. 
 Richmond, 18 Graft. 338; S. C, 7 Am. Law Reg. (N. 8.) 589; Detroit o 
 
153 MUNICIPAL CORPORATIONS. [Ch. IV. 
 
 § 40. It is, perhaps, at present, impossible to state, with 
 confidence, wtiat limitations exist upon the power of the 
 legislature over municipal corporations, as ordinarily con- 
 stituted. It is practicable only to refer to the leading cases 
 
 Corey, 9 Mch. 165, 184, 1861; People v. Hurlbnrt, 34 Mich. 44, 1871, 
 opinioQ of Oooley, 3. As to what are municipal duties, and what fails 
 within the scope of municipal powers, see United States ». Baltimore & 
 Ohio Railroad Company, decided by the United States Supreme Court, Be- 
 cember term, 1872. Pout, sec. 615 a. ^ 
 
 This division of the powers and duties of a municipal corporation into 
 two classes, one public and the other private, is, to our mind, far from sat- 
 isfactory ; and the prwate character thus ascribed to it, difficult exactly to 
 comprehend. In what sense are powers conferred and to be exercised for 
 the good of all the people of the place, private ? Wherein do such powersj 
 in their origin or nature, differ from those admitted to be public ? Are not 
 all powers conferred upon municipalities, whether many or few, given, and 
 given only, for their better regulation and government, and to promote 
 their welfare as parts of the state at large ? The small municipality, with 
 few and simple powers, is no more completely under the supreme dominion 
 of the legislature than the more populous one, requiring for its proper gov- 
 ernment organs and powers peculiar to itself. Are the latter, therefore, 
 , private ? If so, it must be in a qualified and peculiar sense. Ante, p. 97. 
 Contracts in favor of the creditor are protected by the national constitu- 
 tion ; but as against a state, what private powers and rights can a muni- 
 cipal corporation be said to have, when it is within the power of the state, 
 which breathed into it the breath of life, utterly to extinguish its existence 
 at pleasure. The distinction originated with the courts, to promote justice 
 and to escape technical difficulties in order to hold such corporations liable 
 to private actions. On this subject, the opinion of Chief Justice Demo, in 
 Darlington ■». Mayor, &c., 31 N. Y. 164, 1865, may be read with profit. 
 The Chief Justice there asserts the unlimited power of the legislature over 
 municipal corporations and their property. He maintains that such corpo- 
 rations are altogether public, and all their rights and powers public in 
 their nature, and that their property, though held for income or sale, and 
 unconnected with any use for the purposes of the municipal government, is 
 under the control of the legislature, and not within the provisions of the 
 constitution protecting private property. He denies the correctness of the 
 distinction' taken in Baileys. The Mayor, &c., of New York, 3 Hill, 531, 
 and other cases, between the public and private functions of city govern- 
 ments, and maintains that as respects tJte state, all their powers and func- 
 tions are public. He affirms that the legislature may compel a municipal 
 corporation to submit to arbitration claims as to which private corporations 
 and natural persons would be entitled by the constitution to a trial by jury. 
 Gray ». Brooklyn, 10 Abb. Pr. Rep. N. S. 186 ; post, sec. 760. See, as to 
 jury, Dunamore's Appeal, 52 Pa. St. 374. Holding contrary view, Plimp- 
 ton V. Somerset, 33 Vt. 283, 1860. See, also, chapters on Municipal 
 Courts, Property, and Ordinances, poet. 
 
Ch TV.] EXTENT OF LEGISLATIVE CONTROL. 153 
 
 upon the subject, and attempt to extract the principles upon 
 which they rest. 
 
 It is decided that a grant by the legislature of the state to 
 a town, of the right to establish Siferrp, is not in the nature 
 of a contract, hence the grant is repealable, and the corpora- 
 tion may constitutionally be deprived of the franchise.' So an 
 act conferring upon a municipal corporation st. public trust, 
 and the title to land as ancillary to its execution, is not a con- 
 tract, but may be repealed at the will of the legislature. ' But 
 suppose the legislature had granted in fee, to the corporation, 
 a tract of land within its limits, is such a grant, or an ordinary 
 grant of land to the corporation from others, a contract as 
 respects the state, and protected by the constitution from 
 legislative invasion, the same as if the grant had been made 
 to, or the property acquired by, an individual or private 
 corporation ? The question thus stated has never arisen 
 directly for adjudication in the Supreme Court of the United 
 States ; but, in the celebrated Dartmouth College Case, two 
 of the judges expressed the opinion that the legislative con- 
 trol over public and municipal corporations was not so 
 transcendent and absolute as to extend to an arbitrary 
 
 ' East Hartford v. Hartford Bridge Co., 10 How. 511, 1850; 8. C, 16 
 Conn. 149; 17 II. 79; Trustees ». Tatman, 13 111. 30; Police Jury b. 
 Bhreveport, 5 La. An. 661, 1850 ; Darlington t>. Mayor, 31 N. Y. 164, 302, 
 203, per Denio, C. J. 
 
 « People V. Vanderbilt, 26 N. Y. 287, 1863. Where an act incorporat- 
 ing a city donated lands included therein, for the erection of certain public 
 buildings, and the residue to be applied to education, and the charter was 
 afterwards repealed, it was held that until the trust had been executed it 
 was competent for the legislature to change or abolish it, and that the re- 
 peal of the charter extinguished the trusts, they being public, unexecuted, 
 and conditional. Bass «. Pontleroy, 11 Texas, 698-708, 1854. Where an 
 act of the legislature, instead of granting certain moneys received by the 
 st» te for the pm-poses of internal improvements to certain counties abso- 
 lutely, simply appropriated it to he drawn by such counties and expended by 
 them in the improvement of roads, &c., it was held that before its expendi- 
 ture by the counties the legislature had entire control over the fund, and 
 might resume or change the purposes for which it was originally designed 
 to be expended, or provide for the payment by an old county, which had 
 received, but not expended, its proportion of such fund, to a new countj 
 erected out of the old county of sn equitable share of the fund. Richland 
 County ■». Lawrence County, 12 111. 1, 1850, distinguished from Hampshire 
 e. Franklin, 16 Mass. 76. Pust, chap. VIH. 
 
154 MUNICIPAL COEPORATIONS. [Ch. IV. 
 
 divestiture of its private property and the destruction of 
 rights of a private nature. On the other hand, it is the 
 opinion of a distinguished and able judge in New YorTs, in 
 a case already mentioned, that the authority of the legisla- 
 ture over the powers, rights, and property of municipal 
 and public corporations, is, as respects the corporations, 
 quite without limit.' The weight of opinion seems to be in 
 favor of the doctrine, that there may be, in such corpora- 
 tions, rights under contracts an^ grants which are beyond 
 destruction by the legislature, though not beyond legitimate 
 legislative authority and control ;' but in the present state 
 
 ^Denio, 0. J., in Darlington ®. New York, 31 N. T. 164, 1865. 
 
 ' In Richland County v. Lawrence County, 13 111. 1, 1850, while the 
 plenary power of the legislature over the public, civil, or political rights of 
 public corporations was asserted and declared, still it was admitted by the 
 very able and cautious judge who delivered the opinion, that "the state 
 may make a contract with, or a grant to, a public municipal coi-poration 
 which it could not subsequently resume; but in such case the corporation 
 is to be regarded as a private company." Per Trumlull, 3. See "West. 
 Bav. Fund Society ®. Philadelphia, 31 Pa. Bt. 175 ; lb. 185. 
 
 "But while the legislative power (to enlarge, restrain, or even destroy 
 municipal corporations, as the public interest may require) may be exercised 
 over public and municipal corporations, it has as uniformly been held that 
 towns, and other public corporations, may have private rights and interests 
 vested in them under their, charter ; and as to those rights, they are to be 
 regarded and protected the same as if they were the rights and interests of 
 individuals or of private corporations, and grants of property in trust for 
 other than corporate and municipal use (that is, as we understand, for pri- 
 vate, as distinguished from public, purposes), are no more the subject of 
 legislative control than are the private and vested rights of individuals." 
 Per IsJiam, 3., argtiendo, in Montpelier «. East Montpelier, 29 Vermont 
 (3 Wms.) 12, 19, 1856 ; S. C, 27 lb. 704. 
 
 Legislative grants of property to private, and it seems, also, to public and 
 municipal, corporations, cannot be repealed so as to divest the rights of the 
 grantees. Town of Pawlet «. Clark, 9 Cranch (U. 8.) 292, 836, 1815, per 
 Story, J., obiter ; Terret a. Taylor, lb. 43, 52. In this last case, Mr. Justice 
 Story remarks, arguendo: "In respect, also, to public corporations, which 
 exist only for public purposes, such as counties, towns, cities, &c., the legis- 
 lature may, under proper limitations, have a right to change, modify, en 
 large or restrain them, securing^ however, the property, for the uses of those 
 for whom and at whose expense it was originally purchased." Followed 
 by Chancellor Kent, 2 Com. 305 ; by Mr. Justice Washington, Dartmouth 
 College Case, 4 Wheat. 518, 663. In the last case, Mr. Justice Story said : 
 "But it will hardly be contended, that even in respect to such [public] cor- 
 porations, the legislative power is so transcendent that it may, at its will, 
 
Ch. IV.] EXTENT OP LEGISLATIVE CONTROL. 155 
 
 of the decisions the subject cannot be fairly said to be 
 settled. 
 
 § 41. It is an interesting inquiry, which has not yet 
 arisen for judgment, whether the legislature of the state has 
 the right, in virtue of its control over municipal corpora- 
 tions, to annul or interfere with contracts between two 
 municipalities. If a municipal corporation, however, be 
 comes indebted, the rights of the creditors cannot, it is 
 clear, be impaired by any subsequent legislative enactment.' 
 
 take away the private property of the corporation, or change the uses of ita 
 private funds acquired under the public faith." 4 Wheat. 518, 694, oUter. 
 And such is Mr. Justice Coolei/'s view in his valuable treatise. Constitu- 
 tional Limitations, 338. He reiterates it in his learned opinion in People v. 
 Hurlburt, 24 Mich 44 ; S. C, 6 Am. Law Rev. 376, 1871. In Grogan v. San 
 Francisco, 18 Cal. 590, Mr. Chief Justice Meld, delivering the opinion of 
 the Supreme Court of California, takes the ground that the real estate or 
 private property of a municipal corporation is protected by the clause in 
 the national constitution securing the inviolability of contracts; that all 
 legislative authority over it must be exercised in subordination to this 
 guaranty, and that it is subject to legislative control to the same extent, 
 but no greater extent, than all other property in the state. But in Darling- 
 ton ». Mayor, &c. of New York, 31 N. T. 164, 193, 305, Mr. Ciief Justice 
 Denio observes : " Let us suppose the city to be the owner of a parcel of 
 land not adapted to any municipal use, but valuable only for sale to private 
 persons for building purposes, or the like ; no one, I think, can doubt but 
 what it would be competent for the legislature to direct it to be sold, and 
 the proceeds devoted to some municipal or other public purpose, within the 
 
 city, as a court-house, a hospital, or the like It is unnecessary 
 
 to say whether the legislative jurisdiction would extend to diverting the 
 city property to other pubUc use than such as concerns the city and its 
 inabitants." And he considers the expression of Chancellor K6nt (3 Com. 
 805) and of Mr. Justice Story, that where a municipal corporation is em 
 powered to have and to hold private property, such property is invested 
 with the security of other private rights, to mean only that it possesses such 
 rights against wrong-doers, and not that it is exempt from legislative con- 
 trol. 31 N. Y. 164, 196. 
 
 ' Van Hoffman «. Quincy, 4 Wall. 535 ; Butz v. Muscatine, 8 Fi. 575 ; 
 Lee County v. Rogers, 7 i5. 175; Furman v. Nichol, 8 lb. 44; Woodruff «. 
 Trapnall, 10 How. 306 ; Bronson ®. Kinsie, 1 Ih. 316 ; Lansing b. County 
 Treasurer, 1 Dillon Cir. C. R. 533; Muscatine v. Railroad Company, lb. 
 536 ; State «. Milwaukee, 35 Wis. 133 ; Brooklyn Park Com. v. Armstrong, 
 45 N. Y. 334, 1871 ; Soutter v. Madison (act forbidding city to levy taxes 
 to pay judgments held void), 15 Wis. 30 ; Western Savings Fund Society v. 
 Philadelphia, 31 Pa. St. 175, 185. Further, see chapter on Contracts, poat; 
 Bee. 415 et leq. 
 
156 MUNICIPAL CORPORATIONS. [Ch, TV. 
 
 Thus, where an act of the legislature was passed to provide 
 for the payment of the debts of a municipal corporation and 
 authorizing the creation of a sinking fund, to be deposited 
 and applied in a particular manner, and where creditors 
 acting thereunder have surrendered the evidences of their 
 debts and received new bonds, for the payment of which the 
 fund stands pledged by the act, it is not competent — because 
 it impairs the obligation of contracts — ^for a subsequent leg- 
 islature, in providing for the lifciuidation of the corporate 
 debts, to give a different destination to the sinking fund by 
 changing the depository of the fund.' So where the effect 
 of an act of the legislature authorizing a city to fund its 
 Hooting debt was, in substance, a pledge to those who sur- 
 rendered their claims and received new obligations, to 
 trustees of a portion of her revenues and property, to be 
 applied to the payment of her obligations in a specified 
 mode, this, if acted on, constitutes a contract which cannot 
 be materially altered, either by the municipality or the leg- 
 islature, without the sanction of the creditors ; but it was 
 held that a subsequent act, simply changing the mode of 
 levying taxes, and which did not and could not affect the 
 result or impair the security of the creditors, was not 
 invalid.' So, also, where the legislature authorized an 
 indebted city to issue bonds to a specified amount, in pay- 
 ment of a like amount of its outstanding bonds, and, among 
 other provisions, plainly intended to induce creditors to 
 make the exchange, was one prohibiting the city from 
 thereafter issuing its bonds, "except in payment of its 
 bonded debt," and this authority having been acted on, and 
 the arrangement accepted by the creditors, and new bonds 
 issued, it was decided by the Supreme Court of Wisconsin 
 that the prohibition against the issue of further bonds con- 
 stituted, in favor of the holders of the new bonds, a con- 
 tract, which the legislature could not impair by a subse- 
 quent enactment, authorizing the municipality to issue 
 additional bonds for other purposes.' 
 
 ' Liquidators v. ITunicipality, 6 La. An. 31, 1851. As to sinUng fund, 
 Bee Terry v. Bank, 18 Wis. 87; post, chapter on Charters. Fraudulent 
 transfers of properly by municipal corporations, Smith ®. Morse, 2 Cal. 524. 
 
 ' People D. Bond, 10 Cal. 563, 1858. And see People v. "Wood, 7 Cal. 
 679, 1857; Brooklyn Park Com. «. Armstrong, 45 N. T. 334, 1871. 
 
 ' Smith V. Appleton, 19 Wis; 468, 1865. Extent of legislative power 
 
Ch. IV.] EXTENT OP LEGISLATIVE CONTROL. 157 
 
 § 42. But authority to a city to borrow money, and to 
 tax all the property therein to pay the debt thus incurred, 
 does not necessarily deprive the state of the power to modify 
 taxation so as to exempt portions of the property, if the 
 rights of creditors be not thereby impaired.' So authority 
 given in a railroad charter to a county to take stock and 
 issue bonds therefor, if a majority of the voters so deter- 
 mine, is not a contract, but a mere authority conferred upon 
 the county in its public capacity, and may be repealed at 
 any time before the subscription has been made." 
 
 over municipal indebtedness as against the municipality, see City v. Lamson, 
 9 Wall. 477, and read, in connection therewith, Campbell «. Kenosha, 5 
 Wall. 194, in effect overruling the practical application of Foster v. Keno- 
 sha, 13 Wis. 616, 1860 ; post, chapters on Charters and Contracts. 
 
 Where the performance of the obligation of a public or municipal cor- 
 poration has been rendered impossible by act of the law, as, for example, 
 by a subsequent statute, the obligation is discharged, and no action against 
 the corporation will lie thereon. This principle is well exemplified in 
 Brown v. Mayor, &c. of London, 9 Com. B. (N. S.) 736, 1861, respecting 
 the liability of London on bonds payable out of tolls and duties levied on 
 vessels navigating the Thames. In this country, however, it is to be re- 
 membered that the legislative power, as respects creditors, is restrained by 
 the provision of the Federal Constitution that no state shall pass any act 
 impairing the obligation of contracts. 
 
 ' Oilman v. Sheboygan, 2 Black, 510, 1863; Muscatine v. Railroad Com- 
 pany, 1 Dillon C. C. 536. 
 
 As against a municipal corporation, the legislature may, it has been re- 
 cently decided by the Supreme Court of Missouri, repeal its powers to levy 
 and collect wharfage, although the proceeds of the public wharf had been 
 pledged by the corporation, under legislative authority, as a fund in .connec- 
 tion with other revenues for the payment of bonds issued for money bor- 
 rowed by .the corporation to maintain and improve the wharf. After the 
 issue of such bonds, which were outstanding, and after the passage of a 
 subsequent act repealing all acts which authorized the municipality to col- 
 lect wharfage, it sued the defendant for refusing to pay wharfage, on the 
 ground that the repealing act was unconstitutional ; but the Supreme Court, 
 assimilating the case to that of Oilman v. Sheboygan, 3 Black, 510, and 
 distinguishing it from Van Hoffman v. Quinoy, 4 Wall. 535, held that the 
 city could not recover. The language of the judge delivering the opinion 
 would seem to imply that the repealing act would not be invalid as to 
 creditors unless other funds should prove insufficient; but it should be 
 observed that this was not a point adjudged in the case. St. Louis v. 
 Shields, Supreme Court of Missouri, March, 1873. 
 
 " Aspinwall v. County of Jo Daviess, 33 How. 364, 1859. If not indeed 
 at anytime before it is paid for. -People v. Coon. 25 Cal. 635; TJnioD 
 Pacific R. R. Co. «. Davis County, 6 Kansas, 356, 1870;iJW«, sec. 696, note. 
 
168 MUNICIPAL CORPOEATIONS. [Ch. IY 
 
 §43. The legislature, as the trustee for the general 
 public, has full control over the public property and the suJ)- 
 ordinate rigMs of municipal corporations. Accordingly, it 
 may authorize a railroad company to occupy the streets m 
 a city without its consent and without payment, but it could 
 not, probably, authorize the taking of the private property 
 of a city by a railroad company, except for public purposes, 
 and upon compensation being made.' It may authorize 
 corporations to make contractii but it is more doubtful 
 whether it can make contracts for them, since the essence 
 of a contract consists in the agreement of the parties. And 
 on this view it has been held, in Vermont, that the legis- 
 lature cannot, without the consent of a municipal corpora- 
 tion, appoint an agent for it, and authorize him, as such 
 agent, to purchase property and bind the corporation to pay 
 for it.' So the supreme court of Illinois has, very recently, 
 decided that the legislature, under peculiar provisions in 
 the constitution of that state, has no power to compel a city 
 
 ' Darlington!). Mayor, &c., 31 N. T. 164, 1865 ; Reynolds v. Stark County, 
 5 Ohio, 204 ; 5 Ohio St. 113 ; Clinton v. Railroad Company, 24 Iowa, 455, 
 1868; Louisville ■». University of Louisville, 15 B. Mon. 643, 1855. See, 
 further, chapters on Streets and on Dedication, posi; People v. Kerr, 27 
 N. Y. 188; Mercer i>. Railroad Company, 36 Pa. St.. 99; Mayor, &c. v. 
 Hopkins, 13 La. An. 326; Reading *. Commonwealth, 11 Pa. St. 19Q; post, 
 sac. 655. 
 
 " Atkins V. Randolph, 31 Vt. 226, 1858. The case was this : Plaintiff 
 sued the town of Randolph in assumpsit for liquor sold to an "agent" 
 appointed by the county commissioners to purchase liquors (under the act 
 of 1853, "to prevent the traflBc in intoxicating liquors"), at the expense of 
 the town for which he was appointed. The town never gave any assent, 
 express or implied, to this appointment ; nor did it receive any benefit from 
 the sale of the liquors, or have any knowledge that the agent was purchas- 
 ing liquors on its credit. The court held the act of 1852 unconstitutional, 
 and that the plaintiffs could not recover. The decision was put mainly upon 
 the ground that the legislature could not authorize a binding contract to be 
 made creating a debt against a public corporation without its consent. 
 Bennett, J., dissented, not on the ground that the corporation was bound 
 by force of any contract, but because thie act of 1853 imposed a duty upon 
 the towns, as wmnieipal corporations, to pay for the liquors, and this for 
 puWie purposes, and to carry out a poUce regulation. Chief Justice Denio 
 
 criticises this case, and considers it as " standing upon no principle " 
 
 Darlington v. Mayor, &c. of New York, 31 N. Y. 164, 206, 1866. And see 
 Philadelphia v. FieH, 58 Pa. St. 320, 1868. 
 
Ch. rV.] EXTENT OF LE(JISLATIVB CONTROL. I59 
 
 to incur a debt against its will.' Questions of this kind 
 depend, for correct solution, not only upon the constitu- 
 tional provisions in the particular state, bat also, we think, 
 upon the nature of the debt which the municipality is 
 ordered to create. If there is no special limitation in the 
 constitution, and the debt is one to be incurred in the dis- 
 charge of a public duty, which it is proper for the legislature 
 to impose upon the municipality, it can constitute no ob- 
 jection to the validity of the act, that the debt or liability is 
 to be created without its consent. Thus, in the absence of 
 constitutional restriction, it has been decided, and the de- 
 cision is doubtless correct, that it is competent for the legis- 
 lature to direct a municipal corporation to build a bridge 
 over a navigable watercourse within its limits, or the state 
 may appoint agents of its own to build it, and empower 
 them to create a loan to pay for the structure, payable by 
 the corporation.' 
 
 ' People v. Chicago (Lincoln Park Case), 51 111. 17, 1869 ; People ». Salo- 
 mon (South Park Case), iS. 37 ; Howard «. Drainage Company, lb. 130. 
 Though the reasoning of the court is general, yet the point decided, that 
 the city could not be compelled to contract a debt against its consent, was 
 influenced by, if it does not rest upon, a constitutional provision (art. IX. 
 eec. 5), which was constioied to restrict the legislature from granting the 
 right of local or corporate taxation to any other than the corporate authori- 
 ties of the municipality or district to be taxed. Compare Darlington 
 o. Mayor, &c. of New York, 31 N. T. 164. See Dunnovan v. Green, 57 
 111. 30; Sinton v. Ashbury, 41 Cal. 525, 1871. 
 
 The general propositions in the text as to the restrictions on legislative 
 power over municipal corporations will be found to be sustained by the 
 following cases: Atkins v. Randolph, 31 Vt. 236, 1858; White v. Fuller, 39 
 Vt. 193; Louisville v. The University, 15 B. Mon. 642; Western Savings 
 Fund Society®. Philadelphia, 31 Pa. St. 175, 185 ; Montpelier v. East Mont- 
 pelier, 29 Vt. 13; Poultney v. Wells, 1 Aik. (Vt.) 180 ; Trustees ». Winston, 
 5 Stew. &Port. (Ala.) 17; Norris v. Trustees Abingdon Academy, 7 Gill & 
 Johns. (Md.) 7 ; Regents of University v. Williams, 9 iJ. 865 ; Trustees of 
 Academy ®. Aberdeen, 13 Sm. & Mar. (Miss.) 645 ; Brunswick v. Litchfield, 
 2 Maine (2 GreenL), 38, 33. 
 
 " Philadelphia v. Field, 58 Pa. St. 330, 1868, approving Thomas d. Le- 
 land, 24 Wend. 65 ; supra, sec. 30, note, and cases cited. United States «. 
 B. & O. R. R. Co., U. S. Sup. Court, December term, 1873; post, sec. 615a/ 
 Carter v. Bridge Proprietors, 104 Mass. 236, 1870. But the legislature 
 would not, of course, possess such extensive powers over a private corpora- 
 tion. Erie v. Canal, 59 Pa. St. 174. 
 
160 MUNICIPAL CORPORATIONS. [Oh. TV. 
 
 I 44. The fact that a claim against a municipal or public 
 corporation is not such an one as the law recognizes as of 
 legal obligation, has been decided to form no constitutional 
 objection to the validity of a law imposing a tax and direct- 
 ing its payment;' but the validity of legislation of this 
 
 ' Guilford v. Supervisors, &C., 13 N. T. (3 Kern.) 143, 1855. This case, 
 holds the following propositions : 1. That the legislature has power to levy 
 a tax upon the taxable property of a town, and appropriate the same to the 
 payment of a claim made by an individual%gainst the town. 3. That it is 
 not a valid objection to the exercise of such power that the claim, to satisfy 
 which the tax is levied, is not recoverable by action against the town. 3. 
 That it does not alter the case that the claim has been rejected by the 
 voters of the town, when submitted to them at a town meeting, under an 
 act of the legislature authorizing such submission, and declaring that their 
 decision should be final and. conclusive. 
 
 This case has recently been approved, arguendo, by the Supreme Court of 
 the United States. The United States v. Baltimore & Ohio Railroad Co., 
 December tei-m, 1873. 
 
 On the contrary, the same case has been lately disapproved by the 
 Supreme Court of Wisconsin, in the State v. Tappan, 39 Wis. 664, 1873, and 
 an act of the legislature of Wisconsin, similar in its natui-e and principles 
 to that involved in Guilford ». Supervisors, mpra, was held unconstitutional. 
 The opinion of Lyon, J., evinces great care in its preparation, but it has 
 failed to satisfy us, that, in the absence of special constitutional restraints, 
 the extent of the legislative power of taxation depends upon the consent of 
 the municipality or the people therein, or that the special act before the 
 court exceeded the rightful power of the legislature. The principle has 
 been recently reaflBrmed, in Massachusetts, that the discretionary power of 
 the legislature in the distribution of public burdens embraces the power to 
 authorize an assessment on one district for part of the expense of repairing 
 a portion of a bridge in another. Carter ». Bridge Proprietors, 104 Mass. 
 286, 1870; post, sec. 588. See Mr. Sedgwick's opinion of this legislation. 
 Const, and St. Law, 318, 314. The principle of Guilford «. Supervisors 
 was applied in Brewster v. Syracuse, 19 N. T. 116, 1859, where it was 
 decided by all of the judges of the court of appeals that the legis- 
 lature has the power to authorize the levy of a tax for the purpose of 
 paying to one who has constructed a municipal improvement (a street 
 sewer) an addition to the contract price, which the corporation was for- 
 bidden to pay by its charter. The court did not consider that there was 
 any contract in the case, and sustained the legislation on the ground that 
 it was warranted by the taxing power, which, in that state, was not 
 restrailied, thus leaving it in the discretion of the legislature to recognize 
 and direct the payment of claims founded in eqftity and justice, or in grati- 
 tude or charity. People ». Mayor, &c. of Brooklyn, 4 Comst. 419. And see 
 Thomas v. Leland, 34 Wend. 65, 1840 ; Shelby Co. v. Railroad Co., 5 Bush 
 (Ky.) 335 ; Philadelphia v. Field, 58 Pa. St. 330, 1868. This seems to bp 
 carrying the doctrine of the control of the legislature over public corpora- 
 
Ch. IV.] EXTENT OF LEGISLATIVE CONTROL. 161 
 
 character, if it interferes with what has been called fhe private 
 contracts of such corporations, must be sustained on the 
 ground that such contracts, so far as the corporations are 
 concerned, are under the absolute control of the legislature, 
 and not within the protection of the national constitution. 
 The cases on this subject, when carefully examined, go no 
 further, probably, than to assert the doctrine that it is com- 
 petent for the legislature to compel municipal corporations 
 to recognize and pay debts not binding in law, and which, 
 for technical reasons, could not be enforced in equity, but 
 which, nevertheless, are just and equitable in their character, 
 and involve a moral obligation.' To this extent and with 
 this limitation, the doctrine seems unobjectionable in prin- 
 ciple, although it asserts a measure of control over munici- 
 palities, in respect of their duties and liabilities, which does 
 not exist as to private corporations and individuals. 
 
 § 45. Accordingly, it has been decided recently, in 
 Maryland, that, as against the abutters, the legislature 
 could not ratify an assessment for a local improvement in 
 front of their property, and which had been adjudged to be 
 
 tions to its extreme limit. See Mr. Justice Oooley's views, Const. Lim. 380, 
 491, notes. The Supreme Court of California has followed and approved 
 Guilford v. Supervisors. Blanding ». Burr, 13 Cal. 343, 1859. North Mo. 
 R. R. Co. «. Maguire, 49 Mo. 490, 500, 1872. Under special provisions of 
 Michigan constitution, see People v. Onandaga, 16 Mich. 354. Where one 
 county is under a moral obligation to reimburse another county for certain 
 expenses, the legislature may give this a legal effect by a subsequent act. 
 Lycoming v. Union, 15 Pa. St. 166, 1850. Rights of trial by jury may be 
 denied by the legislature to municipal corporations, these being mere 
 creatures of its policy, with such rights only as it sees proper to confer. 
 Borough of Dunsmore's Appeal, 53 Pa. St. 374 ; but see, supra, sec. 39, 
 note. 
 
 ' Blanding v. Burr, 13 Cal. 343, 1853 ; Lycoming «. Union, 15 Pa. St. 
 166; Guilford v. Supervisors, 13 N. T. 144, 1855; Brewster ». Syracuse, 19 
 N. y. 116, 1859; Thomas v. Leland, 34 Wend. 65, 1840; Hasbrouck v. Mil- 
 waukee, 31 Wis. 317, 1866; Smith s. Morse. 3 Cal. 534; Grogan «. San 
 Francisco, 18 Cal. 590 ; Sinton v. Ashbury, 41 Cal. 535, 1871. 
 
 The legislature, in favor of a county collecting oflBcer, who has settled 
 and paid a claim against him, may pass an act authorizing the settlement to 
 be opened and equitably adjusted, and such an act is an implied direction 
 that the rule of law, as to voluntary payments, shall not apply. Bums e. 
 Clarion Co., 63 Pa. St, 433, 1869. 
 11 
 
162 MUNICIPAL COKPORATIONS. [Ch. iV. 
 
 void, and compel them to pay fertile same.' In the case 
 jast mentioned, the legislature, in an act relating to the 
 grading and paving of an avenue in the city of Baltimore, 
 among other things, required, as preliminary to proceedings 
 thereunder, that the mayor and council of the city should 
 determine the' proposed work to be consistent with the pub- 
 lic good. An application, by property owners^ for the im- 
 provement, was made to the city commissioners instead of 
 the mayor and council, and the "Commissioners determined 
 to grade the avenue, awarded the contract, and the con- 
 tractor did the work at the cost of over $100,000. The 
 abutters instituted no proceeding to stop the work, and 
 after it was completed the city passed an ordinance ratifying 
 the contract to grade, and all the acts of the officers of the 
 city in relation to the grading of the avenue. An assess- 
 ment being made upon their property, to pay the expense 
 of the grading, they filed a bill for an injunction and relief, 
 and it was judicially determined that the proceedings of the 
 city commissioners were' coram non judice and void, and 
 that they could not be ratified by ordinance." After this 
 judicial determination, the legislature passed an act direct- 
 ing the city to pay the contractors for the work done by 
 them and accepted by the city, to borrow the money for the 
 purpose, and levy a tax for its payment, which the city did. 
 But at the same session, the legislature, to reimburse the 
 city treasury, empowered the city to collect from the 
 abutters on the avenue graded the amounts which had been 
 assessed and ascertained by the city commissioners, and 
 this last act was held by the Court of Appeals to be void, 
 because it was an assumption of judicial power by the legis- 
 lature, and, in effect, a legislative reversal of the former 
 judgment of the court. 
 
 § 46. In general, however, the legislature m-ay, by sub- 
 sequent act, validate and confirm previous acts of the 
 corporation otherwise invalid.' Merely because such legis- 
 lation, in matters not relating to crimes, is retrospective, 
 
 ' Baltimore «. Horn, 36 Md. 194, 1866, 
 ' Baltimore «. Porter, 18 Md. 284, 1861. See infra, sec. 652. 
 " Bridgeport «. Railroad Co., 15 Conn. 475, 1843, in which it was held, 
 that the legislatare might validate prior, subscription of city to stock of 
 
Ch. TV.] EXTENT. OP LEGISLATIVE CONTROL. 163 
 
 does not make it void. If in addition to its being retrospective, 
 it unjustly impairs or abrogates vested rights, and, without 
 reasonable cause, imposes upon third persons new duties in 
 respect to past transactions, it wUl be void because in con- 
 flict with the constitution.' 
 
 § 47. While it is undeniable that the legislature has 
 fuU control over public corporations, and over the funds 
 which belong to them as such, and held for strictly corpo- 
 i-ate purposes ; yet where, by' authority of law, such corpo- 
 rations hold property or funds in trust for specific uses, 
 it is left in doubt by the cases how far the legislature can, 
 unless the uses be strictly public or charitable, interfere 
 with or control such trust property or funds. In a very re- 
 cent case of great interest, the Supreme Court of Pennsyl- 
 vania decided, that it was within the power of the legisla- 
 ture to deprive the city of Philadelphia of the right to 
 administer charitable trusts under the will of Mr. Girard 
 and others, which had been granted to and accepted by it, 
 and to confer the administration of these trusts upon a sepa- 
 rate body, called " Directors of City Trusts," appointed by 
 
 railroad company. S. P. Winn b. Macon, 31 Geo. 275, 1857 ; McMillen v. 
 Boyles, 6 Iowa, 304; 11. 391; New Orleans «. Poutz, 14 La. An. 853; 
 Bissell V. Jeffersonville, 24 How. 287, 295, 1860; Achison «. Butcher, 8 
 Kansas, 104, 1865 ; Frederick s. Augusta, 5 Geo. 561 ; Truchelut ®. City 
 Council, 1 Nott & McCord (South Car.) 227 ; Cooley Const. Lim. 371, 379. 
 Post, sees. 352, 424, 653. 
 
 ' Bridgeport «. R. R. Co., 15 Conn. 475, 497, and cases cited ^er Church, 
 J. Laws passed to remedy defective execution of powers of public corpora- 
 tions, or their officers, are valid, though retrospective in their operation, 
 unless they contravene some provision of the state constitution. State v. 
 Newark, 3 Dutch. (N. J.) 187, 1858 ; Bissell v. Jeffersonville, 24 How. 287, 
 295, where such curative acts are said to be valid when contracts are not im- 
 paired, or the ^ghts of third persons injuriously affected. 
 
 It is competent for the legislature to validate a city ordinance which had 
 become null and void for want of being recorded, and to provide that the 
 omission to record shall not impair the lien of the assessments against the 
 lot owners. Schenley v. Commonwealth, 36 Pa. St. 29, 1859. The legisla- 
 ture may ratify, and thereby make binding an unauthorized municipal 
 suleeri^thn to the stock of an incorporated theatre company. Municipality 
 v. Theatre Co., 3 Rob. (La.) 309, 1842; but, quere, whether, if the legisla- 
 ture had the power, the act in this case was properly held to be a ratifica- 
 tion See, further, chapter on Contracts, poit, sec. 424. 
 
164 MUOTCIPAL CORPORATIONS. [Ch. IV. 
 
 the judges of tlie Supreme Court and other judges named 
 in the act. It is to be remarked, however, that the legisla- 
 ture did not attempt to change or pervert the trusts thein- 
 selves.' Certain it is, that without legislative authority, a 
 municipal corporation holding the legal title to property in 
 trust, cannot use the funds derived from such property for 
 corporate purposes, or, indeed, for any except the trust 
 purposes.' 
 
 « 
 • Philadelphia v. Fox, 64 Pa. St. WO, 1870. Post, sec. 437 ef seq. 
 
 » White «. Puller, 39 Vt. 193; ante, sec. 37; Montpelier v. East Mont- 
 pelier (contest as to trust property on division of town), 37 Vt. (1 "Wms.) 
 704, 1854 ; same controversy in chancery, 39 Vt. (3 Wms.) 13. See, also, 
 Trustees, &c. ■». Bradbury, 3 Pairf. (Me.) 118 ; Poultney v. Wells, 1 Aik, 
 (Vt.) 180 ; Plymouth v. Jackson, 15 Pa. 44 ; Harrison v. Bridgeton, 16 
 Mass. 16 ; Daniel v. Memphis, 11 Humph. (Tenn.) 583 ; Trustees of Academy 
 V. Aberdeen, 13 Sm. &«Mar. (Miss.) 645, as to which, qiier^. Aberdeen v. 
 Sanderson, 8 Jh. 670 ; Chambers v. St. Louis, 39 Mo. 543 ; Holland ». San 
 Francisco, 7 Cal. 361 ; Girard v. Philadelphia, 7 Wall. 1. See, post, chap- 
 ters on Corporate Property and Remedies Against Illegal Corporate Acts. 
 
 A conveyance was made in 1873, by the proprietors of the lands, to the 
 selectmen of North Yarmouth, of " all the flats, sedge banks, and muscle 
 beds in said town, lying below high water mark," "for the sole use and 
 benefit of the present inhabitants, and of all such as may or shall forever 
 inhabit or dwell in said town," &c. It was decided that this property was 
 held by the town as a piMic corporation, subject to legislative control, in 
 trust for the use of all of the inhabitants, and that upon a division of the 
 town, it was competent for the legislature to provide that the original town 
 should still hold such property in trust for the inhabitants of both towns. 
 North Yarmouth v. Skillings, 45 Maine, 138, 1858. Post, sec. 137. 
 
 To another town in Maine, lands were granted by Massachusetts prior 
 to the separation of Maine therefrom, for the use of its schools. , The legisla- 
 ture, in 1803, on the application of the town, authorized the sale of the 
 lands, an(J gave to certain designated trustees the right to control the funds 
 raised by the sale of the lands. This was considered as constituting a eon- 
 tract, and it was accordingly held that a subsequent act of the legislature, 
 authorizing the town to choose a new set of trustees, and directing the first 
 trustees to deliver over the trust property, was, agrqeably to the principles 
 settled in the Dartmouth College Case, unconstitutional and void. The 
 Trustees, &c. ■». Bradbury, 11 Maine, 118, 1884; Yarmouth «. North Yar- 
 mouth, 34 Maine, 411, 1853. In this last case the trustees of the funds 
 were a prwate corporation, and not subject to legislative control. In North 
 Yarmouth v. Skillings, 45 Maine, 133, 1858, the trustees of the property or 
 fund in question were a public corporation, and subject to such control. The 
 rule as to private and public corporations is well exemplified in these two 
 cases. See, also, Norris o. Abiagton Academy, 7 Gill & Johns. (Md.) 7 ; 
 
ch. iv.j extent of legislative control. 166 
 
 Bass «. Fontleroy, 11 Texas, 698 ; Louisville v. University of Louisville, 15 
 B. Men. 643. 
 
 In the State v. Springfield Township, 6 Ind. (Porter) 83, 1854, it was 
 held, that a law of the state (act of 1852), so far as it diverted the proceeds 
 of the sale of the sixteenth section (granted by act of Congress of April 19, 
 1816) frota the use of schools in the congressional township where the land 
 was situated, to the use of the school system of the state at large, was in 
 contravention of that section of the state constitution (sec. 7, art. Vin.) 
 which provides, that " All trust funds, held by the state, shall remain in-, 
 violate, and be 'faithfully and exclusively applied to the purpose for which 
 the trust was cieated." 
 
166 MUNICIPAL CORPORATIONS. [Ch. V. 
 
 CHAPTER V. 
 
 Municipal Chaetees. 
 
 General Municipal Powers.— ^pTieir Nature and Con- 
 struction. 
 
 % 48. This chapter will treat of Municipal Charters, and 
 the principles upon which they are construed, and of the 
 general nature of the powers which they confer upon the 
 corporation or upon its legislative or governing body. The 
 subject will be considered under the following heads: 
 
 I. Charters Defined. 3. Judicially Noticed. 3. Proof of 
 Corporate Existence. 4. Repeal and Amendment of Char- 
 ters. 6. Conflict between General Laws and Special Char- 
 ters. 6. Extent of Corporate Powers, Limitations Thereon, 
 and Canons of Construction. 7, Usage as affecting Powers 
 and Their Interpretation. 8. Discretionary Powers. 9. 
 Public Powers Incapable of Delegation. 10. Or Surrender. 
 
 II. Mandatory and Discretionary Powers. 12. Exemption 
 of Revenues from Judicial Seizure, and herein of Gramish- 
 ment. 
 
 Charters Defined. 
 
 % 49. We have before seen that, in this country, muni- 
 cipal corporations are created by legislative act, either in 
 the form of a legislative charter or by general incorporating 
 statutes.' A municipal charter, granted by the crown in 
 England is a written instrument, made in the form of letters 
 patent, with the great seal appended to it, addressed to aU 
 the subjects, and constituting the persons therein named, 
 and their successors, a body corporate for or within the 
 place therein specified, and prescribing the powers and 
 duties of the corporation thereby created. But such char- 
 ters are inoperative until accepted." Here, as we have else- 
 
 ■ AnU, sees. 19, 20. 
 
 ' Ante, sees. 15, 23. Outline of charter of the middle ages, ante, sec. tt. 
 
ch. v.] municipal chaeters. 167 
 
 where shown, the legislature creates, alters, and, in the 
 absence of constitutional restriction, can destroy, municipal 
 and public corporations at its will, and it invests them with 
 such powers, and requires of them such duties, as it deems 
 most expedient for the general good, and for the benefit of 
 the particular locality.' No precise form of words is neces- 
 sary to create a corporation, and a corporation may be 
 created by implication," 
 
 GTiarters JvMdally Noticed. 
 
 § 50. .Courts will judicially notice the charter or incor- 
 porating act of a municipal corporation without being spe- 
 cially pleaded, not only when it is declared to be a public 
 statute, but when it is public or general in its nature or 
 purposes, though there be no express provision to that 
 effect. But the acts, votes, and ordinances of the corpora- 
 tion are not pubho matters, and must be pleaded.' 
 
 Proof of Corporate Existence. — User. ^Legislative Re- 
 cognition. 
 
 % 51. The primary evidence of a special charter or act of 
 incorporation, in this country, is the original, or an authen- 
 ticated copy, or printed copy, published by authority. But 
 if primary evidence cannot be had, parol or secondary evi- 
 dence of its existence is admissible.* Thus, where a public 
 corporation had existed for a long space of time (in the instance 
 
 ' Ante, sees. 8, 9, 10. ' Ante, sees. 31, 33. 
 
 ' Beatty «. Knowles, 4 Pet. (U. S.) 153, 157, 1830 ; Aldermen «. Flnley, 
 5 Eng. (Ark.) 433, 1850; Pauntleroy ». Hannibal, 1 Dillon C. C. 118, 1871; 
 Prell ». McDonald, 7 Kansas, 426, 1871; Wests. Blake, 4 Blaokf. (Ind.) 
 284, 1836; Briggs v. Whipple, 7 Vt. 15, 18, 1885; Case «. Mobile, 80 Ala. 
 538, 1857; Clarke v. Bank, 5 Eng. (Ark.t 516; State ». Mayor, 11 Humph. 
 (Tenn.)317, 1850; see Vance o. Bank, 1 Blackf. (Ind.) 80, and note (3); 6 
 Bac. Abr. 374, note; Young v. Bank, &c., 4 Cranch, 384; Swails «. State, 
 4 Ind. 516, 1853 ; Portsmouth, &c. Co. ®. Watson, 10 Mass. 91 ; Clapp o. 
 Hartford, 35 Conn. 66 ; People «. Potter. 35 Cal. 110 ; see, post, chapter on 
 Ordinances, sec. 355. Where a public law creates the mayor and aldermen 
 an incorporated body, no averment or proof is necessary to establish the 
 existence of the corporation. State v. Mayor, 11 Humph. (Tenn.) 317, 1850. 
 
 * Stockbridge b. West Stoekbridge, 13 Mass. 400, 1815 ; Brdntree «. 
 Battles, 6 Vt. 395, 1834 Blackstone «. Wtite, 41 Pa. St. 330. 
 
168 MUNICIPAL CORPORATIONS, [Ch. V. 
 
 before the court for forty years), the court admitted proof 
 of its incorporation hy reputation, the original act not being 
 found, and it being probable that it had been destroyed by 
 fire.' So evidence that a town has for many years exercised 
 corporate privileges, no charter, after search, being found, is 
 competent to go to the jury to establish that it was duly in- 
 corporated. And where there is no direct or record evidence 
 that a place has been incorporated, and it is sought to show 
 the fact of incorporation from ciAjumstantial evidence, the 
 question is for the jury, and not the court ; that is, the jury, 
 under the circumstances, determine whether there is or is 
 not sufficient ground to presume a charter or act of in- 
 corporation," or the due establishment and existence of a 
 corporate district under some general act.' So corporate 
 
 » Dillingham «. Snow, 6 Mass. 547, 1809. S.P.Bassett «. Porter, 4 Ciish. 
 487, 1849. In view of the defective manner in which the records of quad 
 corporations— such as school and road districts, and the like^are kept, the 
 courts, in the absence of any statute requiring record evidence, will permit 
 the existence and organization of the corporation to be proved by reputation 
 and acts, where these facts do not appear of record. Barnes i>. Barnes, 6 
 Vt. 388, 1834; Londonderry*. Andover, 38 li. 416, 1856; Sherwin v. Bug. 
 bee, 16 li. 439 ; Ryder v. Railroad Company, 13 III. 523 ; Highland Turn- 
 pike V. McKean, 10 Johns, 154; wings «. Speed, 5 Wheat. 4:20. See 
 chapter on Corporate Records and Documents, post. 
 
 Irregularities in the proceedings to organize a corporation are not favored 
 when set up, long afterwards, to defeat the corporate existence. Jameson 
 0. People, 16 111. 357, 1855; Dunning®. Railroad Company, 2 Ind. 437, 1850; 
 Pitch V. Pinckard, 4 Scam. (111.) 76. 
 
 Where a corporation is created, and declared to exist as such, by the 
 legislature, without condition, proof of organization or user is not necessary 
 to enable them to maintain an action. Cahill v. Insurance, Company, 2 Doug. 
 (Mich.) 134; Fire Department «. Kip, 10 Wend. 366, 1833. And see Proprie- 
 tors, &c. V. Horton, 6 Hill (N. T.) 501; People a. President, 3 Wend: 351; 
 Wood i). Bank, 9 Cowen, 194, 205. When construed to \i^ vrmiediately 
 created, the omission to do certain acts prescribed to organize the institu- 
 tion, was held immaterial as respects persons contracting with the corpora- 
 tion. Brouwer ®. Appleby, 1 Sandf. 153, 1847. S. P. People «. President, 
 9 Wend. 851, See, also, ante, sec. 23. 
 
 ' New Boston o. Dumbarton, 16 N. H. 201, 1844 ; Mayor of Kingston ». 
 Homer, Oowp. 103, per Lord Mansfield. 
 
 • Bassett ». Porter, 4 Cush. 487, 1849 ; New Boston «. Dumbarton, 13 
 N. H; 409, 412, 1841. S. C, 15 N. H. 301; Robie «. Sedgwick, 35 Barb. 
 819, 1861. The exercise of corporate powers by a place for twenty years, 
 without objection, and with the knowledge and assent of the legislature^ 
 
Ch. V.J MUNICIPAL CHARTERS. 169 
 
 existence may be inferred aad judicially noticed, although 
 the incorporating act or charter tjannot be found, if the fact 
 of incorporation is clearly recognized by subsecLuent legisla- 
 tion, not in contravention- of any constitutional provision 
 respecting the mode of creating corporations.' 
 
 Jiepeals and Amendments, and their Effect. 
 
 § 52. The powers conferred upon municipal corporations 
 may at any time be altered or repealed by the legislature, 
 either by a general law operating upon the whole state, or, 
 in absen.ce of constitutional restriction, by a special act.'' 
 A charter may be amended, and the name of the place and 
 the governing body may be changed, and its boundaries 
 altered, while in law the corporation remains the same. 
 
 furnishes conclusive evidence of a charter, which has been lost ; or, in other 
 words, of a corporation by prescription, which supposes a grant. Bow «. 
 Allentown, 34 N. H. 351, 1857. In this case it was also held that an act of 
 incorporation subsequently passed does not raise any eonclume presumption 
 that the town was not before incorporated. Long use and acquiescence are 
 evidence in support of the legal existence of a municipal corporation. 
 People V. Famham, 35 HI. 563; Jameson v. People, 16 111. 257, 1855; 
 People V. Maynard, 15 Mich. 463, 1867. Long acquiescence in the proceed- 
 ings of a school district is presumptive evidence of the regular organization 
 of such district. Sherwin v. Bugbee, 16 Vt. 439, 1844; Londonderry v. 
 iAndover, 38 lb. 416. "It is now well settled in this state, that the mere 
 fact of a school district maintaining its existence and operation for a great 
 Dumber of years — say fifteen — is sufficient evidence of its regular organiza- 
 tion. The same rule of presumption must be applied to the subdivision of 
 the town iuto districts." PerEedJield, J., in Sherwin «. Bugbee, supra. 
 
 • Jameson v. People, 16 lU. 357, 1855; Swain «. Oomstock, 18 Wis. 46-^, 
 1864; People v. Pamham, 35 lU. 563; Bow v. Allentown, 34 N. H. 351, 
 1857; Society, &c. ■». Pawlet, 4 Pet. 480, 1830; Railroad Company ». 
 Chenoa, 43 HI. 309; Virginia City ». Mining Company, 3 Nev. 86, 1866; 
 Railroad Company v. Plumas County, 37 Oal. 354. Ante, sec. 31. 
 
 ' Per Smith, J., Sloan v. State, 8 Blackf. (Ind.) 361, 1847, approving 
 People V. Morris, 13 Wend. 325;. Daniel®. Mayor, &c., 11 Humph. (Tenn.j 
 583 ; State v. Mayor, 24 Ala. 701, 1854 ; Girard ». Philadelphia, 7 Wall. 1, 
 1868. Ante, sec. 34 ; sec. 39 et seq. The provisions of an amendatory act, 
 reducing the number of councilmen, though the act too^K efiect at once, 
 ■were postponed until the next year, when they could be called into requisi- 
 tion at the election — no earlier election being provided for — an,d mean- 
 •wtiile the existing council remained unaffected by the amendment. Scovill 
 V Cleveland, 1 Ohio St. 126, 1853. Same principle applied. Reading o 
 Keppleman, 61 Pa. St. 333, 1869. 
 
170 MUNICIPAL CORPORATIONS. [Ch. V. 
 
 The insertion in an amended charter of the same provisfons 
 that were contained in the old is not, unless such upon the 
 whole act appears to have been the intention of the legisla- 
 ture, a repeal of the latter. The law on this subject is 
 thus stated : " Where a statute does not, in express- terras, 
 annul a right or power given to a corporation by a former 
 act, but only confers the same rights and powers under a 
 new name, and with additional powers, such subsequent 
 act does not annul the rights and*powprs given under the 
 former act and under its former name," there being no ex- 
 press repeal.' 
 
 § 53. A repeating claxise in a revised and amendatory 
 charter, when a former provision is included in the re- 
 vised act, does not, as to such provision, interrupt the con- 
 tinuity of the original act.' Where the original charter of 
 a city prescribed the qnalifications required to make a per- 
 son eligible to the oflBlce of mayor, and contained a proviso 
 that a certain fact disqualified, and an amendatory act, in 
 dealing in the same subject, copied all of the original adt 
 
 ' State, &c. «. Mobile, 24 Ala. 701, 1854; Girard «. Philadelphia, 7 
 Wall. 1, 1868; Commonwealth ®. Worcester, 3 Pick. (Mass.) 474, 1836; 
 Grant on Corp. 24, and cases cited ; lb. 305. Bee chapter on Dissolution, 
 •pott. " There is no doctrine better settled," says Mr. Justice Strong, "than 
 that a change in the form of government of a community does not ipto 
 facto abrogate pie-existing law, either written or unwritten. This is true 
 in regard to what is strictly municipal law, even when the change is by 
 conquest. The act of assembly converting a borough into a city did not, 
 therefore, of itself, and in the absence of express provisions to that effect, 
 either repeal the former acts of assembly relative to the borough, or annul 
 existing ordinances. It was solely a change in the organic law for the 
 future, and left unaffected the existing ordinances, precisely as a change «f 
 a state constitution leaves undisturbed all prior acts of assembly." Trfistees 
 of Academy «. Erie, 31 Pa. St. 515, 517, 1858. As to transfer to new or 
 reorganized corporation of the property and rights of the old or former 
 corporation, see Girard v. Philadelphia, 7 Wall. 1, 1868; Savannah «. 
 Steamboat Company, R. M. Charlt. (Geo.) 343; Fowler v. Alexandria, 3 
 Pet. 398, 408; Municipality v. Commissioners, 1 Rob. (La.) 279. Transi- 
 tion from town to city organization does not dissolve the corporation on 
 extinguish its indebtedness. Olney n. Harvey, 50 HI. 453, 1869 ; MaysvilleJ 
 v. Shultz, 8 Dana, 10, 1865 ; Frank v. San Francisco, 21 Cal. 668 ; pottf. 
 Chapter Vn. 
 
 » St. Louis v. Alexander, 23 Mo. 483, 1856. 
 
Ch. v.] MUmCIPAL CHARTERS. 17] 
 
 except the pro\dso, which was omitted, tlie court held that 
 the proviso in the original act was not repealed, placing 
 stress, however, upon the express declaration that all parts 
 of the new act inconsistent with, or contrary to, the old one, 
 were repealed. There is, however, much, room to contend 
 that the subject matter having been revised in the amenda- 
 tory act w the manner it was, the legislative intention was 
 to repeal, and not to continue in force, the proviso.' A 
 general law, forbidding the opening of streets through 
 cemeteries, is not repealed by a subsequent act extendifg 
 the limits of a town and appointing commissioners with 
 authority "to survey, lay out, &c., streets and aUeys, as 
 they shall deem necessary within said limits," since both 
 acts can stand, and repeals by implication are not favored.' 
 So a general statute expressly prohibiting a municipal cor- 
 poration from debarring citizens from selling at wholesale 
 in the city market is not repealed, by implication, by a sub- 
 sequent act, by which the city authorities are invested with 
 power to pass such ordinances as appear to them necessary 
 for the security, welfare, &c., of the city.' So, also, where a 
 state law required auctioneers to take out a state license, 
 and a subsequent charter to a city gave it power "to pro- 
 vide for licensing,' taxing, and regulating auctions," &c., 
 it was held that a license granted by the city corporation 
 to an auctioneer did not relieve Mm of the necessity of ob- 
 taining, also, a license from the state authorities, the court 
 being of opinion that both statutes should and ought to 
 stand, as they were not inconsistent.* 
 
 Oeneral Laws and fecial Charters. — Conflict. — Con- 
 struction. 
 
 § 54. It is a principle of very extensive operation, that 
 statutes of a general nature do not repeal, by implication, 
 charters and special acts passed for the benefit of particular 
 
 » State V. tlLeti's, 3 Mo. 378, 1833. Consult Goodenow «. Buttrick, 7 
 Mass. 140, 143; Kings. Grant, 1 Bam. & Adol. 104. 
 
 ' Egypt Street, 2 Grant (Pa.) Cas. 455, 1854. See, further, infra, sec. 
 S4, as to repeals by implication. 
 
 • Haywood ®. Savannah, 13 Geo. 404, 1853. 
 
 * Simpson «. Savage, 1 Mo. 359, 1838. 
 
172 MUNICIPAL CORPORATIONS. [Ch. V, 
 
 municipalities ;' but they do so when this appears to have 
 been the purpose of the legislature. If both the general 
 and special acts can stand, they will be construed accord- 
 ingly. If one must give way it will depend upon the sup- 
 posed intention of the law-maker, to be collected from the 
 entire course of legislation, whether the charter is super- 
 seded by the general statute, or whether the special charter 
 provisions apply to the municipality, in exclusion of the 
 general enactments. So particulaf provisions of charters , 
 should be read and construed in the light of the whole in- 
 strument, of all preceding charters, of the general' legislation 
 of the state, and of the object of the legislature in the erec- 
 tion of municipalities, as before explained." 
 
 ' Bond i>. Eiestand, 20 La. An. 139 ; Railroad Company n. Alexandria, 
 18 Gratt. (Va.) 176, 1867; Hammond v. Haines, 25 Md. 541; Louisville v. 
 McKean, 18 B. Mon. 9 ; Cumberland s. Magruder, 34 Md. 381, 1871 ; 'post, 
 sees. 89, 107. B^eals lyy vm^lication are not favored; and special laws 
 conferring particular rights upon municipal corporations were held not 
 to be repealed by subsequent statutes, general in their character. Ottawa 
 V. County, 13 111. 339; Egypt Street, 2 Grant (Pa.) Cas. 455, 1854; supra, 
 sec. 53. A general statute, repealing all acts contrary to its provisions, 
 held not to repeal a clause in the charter of a municipal corporation upon 
 the same subject. State v. Branin (taxation), 3 Zabr. (N. J.) 464, 1852. 
 
 The principle that general legislation on a particular subject must, in the 
 absence of anything showing a different intent on the part of the legisla- 
 ture, give way to inconeUtent apedal legislation on the same subject, is recog- 
 nized and applied in the following cases: State «. Morristown, 33 N. J. 
 Law, 67, 1868; State*. Branin, 3 Zabr. 484; State «. Clark, 1 Dutch. 54; 
 State V. Jersey City, 5 J6. 170; Jersey City v. Railroad Co., 20 N. J. Eq. 
 360; in re Goddard, 16 Pick. 504; Railroad Company v. Alexandria, supra. 
 In Bank v. Bridges, 1 Vroom (N. J.) 113, and State «. Miller, li. 368, 
 special laws gave way to general laws, because the legislature had annexed 
 to the latter a repealing clause, abrogating all inconsistent local or special 
 acts. Per Depue, J., 88 N. J. 57, 60. See Bank v. Davis, 1 McCarter Oh. 
 (N.. J.) 386 ; Clintonville v. Keeting, 4 Denio, 341 ; Tiemey v. Dodge, 10 
 Minn. 166. Other illustrations will be found in the chapters on Ordinances 
 and Taxation, post, sec. 614.. 
 
 ' Alexandria ®. Alexandria (taxing power), 5 Cranch, 3, 1809 ; Grant on 
 Corp. 27 ; Canal Company «. Railroad Company, 4 Gill & Johns. 1 ; Smith 
 V. Kemochen, 7 How. 198 ; Janesville «. Markoe, 18 Wis. 350 ; ante, sees. 
 •9, 10, 13. AotB in pai i materia should be construed together; and on this 
 principle, the definition of the word " owner," in a subsequent paving act, 
 was considered as proper to be adverted to, and as applicable to the same 
 word in prior acts on the same subject. Holland «. Baltimore, 11 Md. 186, 
 1857. 
 
Ch. v.] MUinCIPAL CHARTERS. 173 
 
 Extent of Power — Limitation — Canons of Construction. 
 
 % 55. It is a general and undisputed proposition of law 
 that a municipal corporation possesses, and can exercise, 
 the following powers, and no others : First, those granted 
 va. express words ; second, those neeessg,rily or fairly im- 
 plied in, or incident to the powers expressly granted ; third, 
 those essential to the declared objects and purposes of the 
 corporation — ^not simply convenient, bnt indispensable. 
 Any fair, reasonable doubt concerning the existence of 
 power is resolved by the courts against the corporation, and 
 the power is denied. Of every municipal corporation the 
 charter or statute by which it is created is its organic act. 
 Neither the corporation, nor its officers, can do any act, or 
 make any contract, or incur any liability, not authorized 
 thereby. All acts beyond the scope of the powers granted 
 are void. Mnch less can any power be exercised, or any 
 act done, which is forbidden by charter or statute. These 
 principles are of transcendent importance, and lie at the 
 foundation of the law of municipal corporations. Thetc 
 reasonableness, their necessity, and their salutary character 
 have been often vindicated, but never more forcibly than by 
 the late learned Chief Justice Shaw, who, speaking of 
 municipal and public corporations, says: "They can ex^ 
 ercise no powers but those which are conferred upon them, 
 by the act by which they are constituted, or such as are 
 necessary to the exercise of their corporate powers, the per- 
 formance of their corporate duties, and the accomplishment 
 of the purposes of their association. This principle is 
 derived from the nature of corporations, the mode in which 
 they are organized, and in which their affairs must be con- 
 ducted. In aggregate corporations, as a general rule, the 
 act and will of a majority is deemed in law the act and wiU. 
 of the whole — as the act of the corporate body. The conse- 
 quence is, that a minority must be bound not only without, 
 but against, their consent. Such an obligation may extend 
 to every onerous duty, to pay money to an unlimited 
 amount, to perform services, to surrender lands, and the 
 like. It is obvious, therefore, that if this liability were to 
 extend to unlimited and indefinite objects,, the citizen, by 
 
174 MUNICIPAL COEPORATIONS. [Ch. V 
 
 being a member of a corporation, might be deprived of lis 
 most valuable personal rights and liberties. The security 
 against this danger is in a steady adherence to the principle 
 stated, viz : that corporations can only exercise their 
 powers over their respective members, for the accomplish- 
 ment of limited and defined objects. And if this principle 
 is important, as a general rule of social right and. municipal 
 law, it is of the highest importance in these states, where 
 corporations have been extended and multiplied so as to 
 embrace almost every object of human concern." ' 
 
 ' Per Shmo, C. J., in Spaulding v. Lowell, 33 Pick. 71, 74, 1839 ; Bangs d. 
 Snow, 1 Mass. 181 ; Stetson v. Kempton, 18 Mass. 372 ; Willard v. Newbury- 
 port, 13 Pick. 237 ; Keyes i). Westford, 17 Pick. 373, 37^^ ; Comw. ■». Turner, 
 1 Cush. 493, 495, 1848; Cooley v. Granville, 10 Cush. 57, 1853; Merriam v. 
 Moody, 25 Iowa, 163, 1868 ; Mintum ®. Larue, 38 How. 435 ; Lafayette v. 
 Cox, 5 Ind. (Port.) 38, 1834 ; Paine «. Spratley, 5 Kansas, 535 ; Vincent v. 
 Nantucket, 13 Cush. 103, 105 ; Clark «. Davenport, 14 Iowa, 494 ; Mays v. 
 Cincinnati, 1 Ohio St. 268; Gallia Co. v. Holcomb, 7 Ohio, part I. 232; 
 Comnu-s. v. Mighels, 7 Ohio St. 109 ; Fitch v. Pinckard (taxing power), 4 
 Scam, (111.) 78 ; Caldwell v. Alton (market ordinance), 33 El. 416 ; Trustees, 
 &c. V. McConnel, 13 111. 140 ; Louisiana State Bank v. New Orleans Nav. 
 Co., 3 La. An. 394; State v. Mayor, &c. (market house case), 5 Port. (Ala.) 
 379 ; Head v. Ins. Co., 3 Cranch, 168 ; De Russey v. Davis (sale of ferry lease), 
 13 La. An. 468; People v. Bank, &c., 1 Doug. (Mich.) 382; City Council «. 
 Plank Eoad Co., 31 Ala. 76; State v. Mayor, 5 Port. (Ala.) 379; EJx pa/rU 
 Burnett, 30 Ala. 461, and cases cited ; Le Couteleux v. Buffalo, 33 N. T. 
 333; People «. Railroad Co., 12 Mich. 387. 
 
 " The powers of all corporations are limited by the grants in their char- 
 ters, and cannot extend beyond them." Per Breese, J., Petersburg v. Metz- 
 ger, 21 111. 205. " Corporations have only such rights and powers as are 
 expressly granted to them, or as are necessary to carry into effect the rights 
 and powers so granted." Per Btorrs, J., in New London v. Brainard (illegal 
 appropriation of money to celebrate 4th of July), 33 Conn. 552, 1853, ap- 
 proving Stetson V. Kempton, 13 Mass. 372; Hodge v. Buffalo, 2 Denio, 110, 
 ante, p. 104, sec. 12. "In this country, all corporations, whether public or 
 private, derive their powers from legislative grant, and can do no act for 
 w^hich authority is not expressly given, or may not be reasonably inferred. 
 But if we were to say that they can do nothing for which a warrant could 
 not be found in the language of their charters, we should deny them, in 
 some cases, the power of self-preservation, as well as many of the means 
 necessary to effect the essential objects of their incorporation. And there- 
 fore, it has long been an established principle in the law of corporations, 
 that they may exercise all the powers within the fair intent and purpose of 
 their creation which are reasonably proper to give effect to powers expressly 
 granted. In doing this, they must [unless restricted in this respect,] have 
 a choice of means adapted to ends, and are not to be confined to any one 
 
Ch. v.] municipal charters. 175 
 
 These general principles of lavr are indisputably settled, 
 but diflB.culty is often experienced in their application, on 
 
 mode of operation!" Per Church, J., in Bridgeport v. Railroad Co., 15 Conn. 
 475, 501, 1843. The incidental powers of a municipal corporation must be 
 germane to the purposes for which the corporation was created. Mayor v. 
 Yuille, 3 Ala. 187 (license to bakers) ; Harris v. Intendant, 28/6. 577 (retail- 
 ing liquors); Intendant v. Chandler, 6 lb, 899 (retailing liquors). 
 
 Courts adopt a sbriet, rather than liberal, construction of powers : . " It is a 
 well settled rule of construction of grants by the legislature to corporations, 
 ■sfhefheT piMic or private, that only such powers and rights can be exercised 
 under them as are clearly comprehended within the words of the act, or 
 derived therefrom by necessary implication, regard being had to the objects 
 of the grant. Any ambiguity or doubt arising out of the terms used by the 
 legislature must be resohed in/aeor q/ the public. This principle has been 
 so often applied in the construction of corporate powers, that we need not 
 stop to refer to authorities." Per Nelson, j.,in Mintum v. Larue, 33 How. 
 (U. S.) 435, 436, 1859, construing municipal charter as to ferry rights of 
 corporation thereunder. In subsequent cases, the Supreme Court has said 
 that a municipal corporation " can exercise no power which is not, in eaypress 
 terms, or hy fair implication, conferred upon it." Thompson v. Lee Co., 3 
 Wall. 320 ; Thomas v. Richmond, United States Supreme Court, December 
 Term, 1871, 13 Wall. 349. S. P. Clark v. Davenport, 14 Iowa, 495; Mer- 
 riam v. Moody's Executors, 25 Iowa, 163 ; Nichol v. Mayor, &c,, 9 Humph. 
 353; Leonard c. Canton, 85 Miss. 189, where Fisher, J., gives a clear expo- 
 sition of the rationale of the doctrine that corporate grants should be strictly 
 construed. Douglas v. Placerville, 18 Oal. 643, 647 ; Argenti v. San Fran- 
 cisco, 16 Cal. 282 ; Wallace «. San Jose, 29 Cal. 180. With us, cities, towns 
 and municipal corporations of all kinds, are created and endowed with 
 powers by the legislature. These are of a legislative and administrative 
 character, to aid in the better government of localities or portions of the 
 state. This power exists no further than it has been delegated. And mu- 
 nicipal corporations, in their action, are confined "to a strict construction of 
 the grants of powers contained in their charters " or acts of incorporation. 
 Lafayette v. Cox, 5 Ind. (Porter) 38, 1854. " It is proper, too, that these 
 powers should be strictly construed, considering with how little care char- 
 tered privileges are these days granted." Bank ®. Chilicothe, 7 Ohio, part 
 n. 31, 35, 1836, per Eitchcoclc, J. ; Collins v. Hatch, 18 Ohio, 523. " Boroughs 
 and towns are, confessedly, inferior corporations. They act not by any 
 inherent right of legislation, like the legislature of the state, but their au- 
 thority is delegated, and their powers, therefore, must be strictly pursued. 
 Within the limits of their charter, their acts are valid ; without it, they are 
 void. Willard v. Killingworth, 8 Conn. 247, per Daggett, J., approved 10 lb. 
 442. " The action of municipal corporations is to be held strictly within the 
 limits prescribed by statute. Within these limits, they are to be favored by 
 the courts. Powers expressly granted, or necessarily implied, are not to be 
 defeated or impaired by a stringent construction." Smith «. Madison, 7 
 Ind. 86 ; Kyle «. Malin, 8 lb. 34, 57, per Stuart, 3. 
 
176 MUNICIPAL COEPORATIONS. [Ch. V. 
 
 account of the complex character of municipal duties, and 
 the various, miscellaneous, and frequently indefinite, pur- 
 poses or objects which municipalities are authorized to ex- 
 ecute or carry into operation." 
 
 Usage as Affecting Municipal Powers. 
 % 56. In England municipal corporations claim and 
 exercise many powers wholly in virtue of long- established 
 usage, or of prescription, which ilnplies a lost charter con- 
 ferring such powers." Indeed, from immemorial usage, 
 powers are recogifized as valid, which could not lawfully 
 originate in a royal charter. A usage to give a right must, 
 however, be long established, and forty years' duration was 
 not considered, of itself, to be suflBcient for this purpose." 
 But usage in this country has a much more limited opera- 
 tion. It seems to be a necessary result of the manner in 
 which our municipal corporations are created, viz : by ex- 
 press legislative act, wherein their powers and duties are 
 wholly prescribed, that the powers themselves cannot be 
 added to, enlarged, or diminished, by proof of usage. 
 
 § 57. In a case in Massachusetts, the* learned Chief Jus- 
 tice Bigelow, after stating the decision of the Supreme 
 Court, that towns in Massachusetts had no authority to ap- 
 
 In concluding this note, the author thinks it pertinent to remark, that 
 the principle of strict construction should not be pressed in any case to such 
 an unreasonable extent as to defeat the legislative purpose fairly appearing 
 upon the entire charter or enactment. Perhaps the rule as it is briefly ex- 
 pressed in the text, best embodies the result of the adjudications upon this 
 point, namely : If, upon the -whole, there be fair, reasonable, and substan- 
 tial doubt whether the legislature intended to confer the authority in ques- 
 tion, particularly if it relates to a matter extra-municipal or unusual in its 
 nature, and the exercise of which will be attended with taxes, tolls, assess- 
 ments, or burdens upon the inhabitants, or oppress them, or abridge natural 
 or common rights, or divest them of their property, the doubt should be 
 resplved in favor of the citizen, and against the municipality. Infra, 
 sec. 73. 
 
 ' Spalding ». Lowell, 33 Pick. 71 ; ante, sees. 8-11 ; post, chap. VI. where 
 some of these miscellaneous or special powers are considered. 
 
 ' Ante, chap. II. sec. 12 ; chap. III. sec. 15. 
 
 ' Chad ® Tilsed, 5 J. B. Moore, 185. As to the proper office of usage 
 in England, both as a source of power and to aid in the interpretation of 
 charters, see Grant on Corp. 19, 27, 28, 39, 552, 564. 
 
Ch. v.] municipal OHAKTBRa, I77 
 
 propriate money for the celebration of the Fourth of July, 
 remarks, in relation to the attempt to sustain the appropria- 
 tion on the ground of usage : " Usage cannot alter the case. 
 An unlawful expenditure of money by a town cannot be 
 rendered valid by usage, however long continued. Abuses 
 of power and violations of right derive no sanction from 
 time or custom. A casual or occasional exercise of a powpr 
 by one or a few towns will not constitute usage. It must 
 not only be general, and of long continuance, but, what is 
 more important, it must also be a custom necessary to the 
 exercise of some corporate power, or the enjoyment of some 
 corporate right, or which contributes essentially to the ne- 
 cessities and convenience of the inhabitants. The usage 
 relied on in the present case would not satisfy either of these 
 last-named recLuisites, which are necessary to give it valid- 
 ity.'" But general and long-continued usage is not without 
 its importance, and usage of this character may be resorted 
 to in aid of a proper construction of the charter or statute, 
 but no further. If the language be uncertain or doubtful, a 
 uniform, long-established, and unquestioned usage will be 
 regarded by the courts in determining the mode in which 
 powers may be exercised, and to a reasonable extent in 
 determining the scope of the powers themselves ; but usage 
 can have no room for operation where the language of the 
 enactment is plain and the legislative intent is clear upon' 
 the face of it,' 
 
 • Hood B. Lynn, 1 Allen (Mass.), 103, 1861. Further as to usage, con- 
 sult Willard ®. Newburyport, 13 Pick. 337 ; Spaulding ». Lowell, 33 Pick. 
 71; Smith v. Cheshire, 13 Gray (Mass.), 308, 1859; Butler «. Charlestown, 
 7 Gray, 13, 16, 1856 ; Benoit v. Conway, 10 Allen, 538. 
 
 ' Smith v. Cheshire, 13 Gray, 308 ; Butler «. Charlestown, 7 Gray, 13, 
 16 ; Sherwin v. Bugbee (validity of school meeting), 16 Vt. 439, 444, where 
 Bedfleld, J., remarks: "In construing statutes applicable to public corpora- 
 tions, courts will attach no slight weight to the uniform practice under 
 €hem, if this practice has continued for a considerable period of time." It 
 is a rule "founded on reason and common sense," says the Court of Appeals 
 of Maryland, that "doubtful words in a general statue may be expounded 
 with reference to a general usage ; and when a statute is applicable to a 
 particular jjlace only, such words may be construed by usage at that place." 
 Frazier «. Warfield (Inspection Act for Baltimore), 13 Md. 279, 303; 8. P. 
 Love v. Hinckley, Abt. Adm. 436; see, also, Bex «. Chester,. 1 Maule & 
 Selw. 101 ; Bex v. Salway, 9 B. & C. 434. 
 11 
 
178 MUNICIPAL CORPORATIONS. [Ch. V. 
 
 Discretionary Powers not Subject to Judicial Control. 
 
 % 58. Power to do an act is often conferred upon muni- 
 cipal corporations, in general terms, without being accom- 
 panied by any prescribed mode of exercising it. In such 
 cases the common council, or governing body, necessarily 
 have, to a greater or less extent, a discretion as to the man- 
 ner in which the power shall be used.' So where the law 
 
 Where the true construction of a charter admits of doubt, and the con- 
 struction adopted by the city authorities has been acquiesced in generally, 
 and acted upon by third persons in good faith, in their transactions with 
 the city, it will be precluded by the courts in actions by such third parties 
 from denying its construction to be the true one. Van Hostrup v. Madison 
 City (on railroad bonds), 1 Wall. (U. S.) 391, 1863 ; Meyer ». Muscatine (on 
 railroad bonds), J&. 384, 891. Post, sec. 353. Further as to estoppel, see 
 chapter on Contracts, post. Post, sees. 381, 431 n., 433 n., 738 n., 749, 766. 
 
 ' Railroad • Co. v. Evansville (power to subscribe stock and to borrow 
 money), 15 Ind. 895, 1860; Kelly®. Milwaukee, 18 Wis. 83; Slack v. Rail- 
 road Co., 18 B. Mon. 1 ; Bridgeport v. Railroad Co., 15 Conn. 475, 501, 1848, 
 per OTmrch, J. ; Harrison e. Baltimore, 1 Gill (Md.) 364, 1843 ; Cincinnati 
 «. Gwynne, 10 Ohio, 193; Markle v. Akron, 14 Ohio, 586. Where a muni- 
 cipal corporation is entrusted with the execution of a power, and is not 
 confined to a particular mode, but has a discretion in the choice of means, 
 a plain case of abuse must be shown resulting in an injury to the petitioner, 
 to warrant an injunction against the corporation. Page v. St. Louis 
 (spbcial assessment), 20 Mo. 136, 1853 ; Colton «. Eanchett, 13 111. 615 ; 
 Mayor of Baltimore v. Gill, 31 Md. 375; Holland o. Baltimore, 11 Md. 186; 
 Dodd V. Hartford, 35 Conn. 333; Sheldon d. School District, Ih. 334; 
 Lockwood V. St. Louis, 34 Mo. 30 ; Dean v. Todd, 23 Mo. 19 ; Mayor, &c. 
 v. Meserole, 26 Wend. 182. See chapters on Contracts and Taxation, post. 
 Wells «. Atlanta, 43 Geo. 67, 1871; Ooulson «. Portland, Deady R. 481, 
 1868. Post, sec. 741. In respect to the legislative functions of a muni- 
 cipal body, the courts are bound to presume that they will exercise any 
 discretion with which they are clothed properly, and that they had suffi- 
 cient reasons for doing an act, the result of such discretion. Railroad Co. 
 «. Mayor of New York, 1 Hilton, 563, 1858. 
 
 By statute in Canada, certain superior courts have power in their dis- 
 cretion to set aside by-laws for illegality on the application of persons in- 
 terested, but these courts will not entertain an application to set aside a 
 by-law on a matter of fact, which according to municipal act, or a by-law 
 passed under it, should be ascertained and finally determined by an officer 
 of the corporation, unless perhaps fraud or corrupt conduct be imputed 
 to such officer. See In re Michie and the Corporation of the City of Toronto. 
 11 U. C. C. P. 379. 
 
ch. v.] municipal charters. 179 
 
 or charter confers upon the city council, or local legislature, 
 power to determine upon the expediency or necessity oJE 
 measures relating to the local government, their judgment 
 upon matters thus committed to them, while acting within 
 the scope of their authority, cannot be controlled by the 
 courts. In such case, the decision of the proper corporate 
 officers is final and conclusive, unless they transcend their 
 powers.' Thus, for example, if a city has power to grade 
 streets, the courts will not inquire into the necessity of the 
 exercise of it, or the refusal to exercise it, nor whether a 
 particular grade adopted, or a particular mode of executing 
 the grade, is judicious.' So if a city has power to build a 
 market-house, the courts cannot inquire into the size and 
 fitness of the building for the object intended.' 
 
 § 59. So, also, where, by its charter, a municipal cor,- 
 poration is empowered, if it deems the public welfare or 
 convenience requires it, to open streets or make public im- 
 provements thereon, its determination, whether wise or un- 
 wise, cannot be judicially revised or corrected.* On the 
 ground that it is the province of the municipal authorities, 
 and not of the judicial tribunals, to determine what im- 
 provements shall be made in the streets and highways of 
 the corporation, the court, on application of citizens, re- 
 fused to compel a city to cover over an open draining canal 
 of long standing, it " not appearing to be a nuisance in the 
 legal sense of the word." ' So where it i§ made the duty 
 of a city to remove, as far. as they may be able, every 
 nuisance which may endanger health, the courts cannot 
 control the manner in which this shall be done.' And 
 
 • Baker e. Boston, 12 Pick. 184; Hovey «, Mayo, 43 Maine, 322, 1857; 
 Fay, petitioner, 15 Pick. 248, 1834; Parks o. Boston, 8 Pick. 218, 1829. 
 
 ' Hovey v. Mayo, street commissioner, 43 Maine, 322, 1857; Benjamin 
 V. Wheeler, 8 Gray, 409, 413, 1857. 
 
 » Spalding v. Lowell, 23 Pick. 71, 80, 1839. 
 
 < Methodist P. Church v. Baltimore, 6 Gill. (Md.) 391, 1848. Passing 
 ordinances in relation to opening, &c.,. of streets, is the exercise of legis- 
 lative, not judicial, power. Wiggin v. Mayor, &c. of New York, 9 Paige, 
 16, 1841. See chapter on Eminent Domain, post. 
 
 ' Inhabitants v. New Orleans, 14 La. An. 452, 1859. 
 
 • Baker «. Boston, 12 Pick. 184, 1831 ; see, also, Kelly v. Milwaukee, 18 
 
180 MTJOTCIPAL COKPORATIONa [Oh, V. 
 
 generally, the judicial tribunals will not interfere with, 
 municipal corporations in their internal police and admin- 
 istrative government, unless some clear right has been with- 
 held or wrong perpetrated.' 
 
 Public Powers and Trusts Incapable of Delegation. 
 
 § 60. The principal is a plain one, that the public 
 powers or trusts devolved by law or charter upon the council 
 or governing body, to be exercised by it when .and in such 
 manner &sit shall judge best, cannot be delegated to others. 
 Thus, where by charter or statute, local improvements, to be 
 assessed upon the adjacent property owners, are to be con- 
 structesd in "such manner as the common council shall 
 prescribe " by ordinance, it is not competent for the council 
 to pass an ordinance delegating or leaving to any officer 
 or committee of the corporation the power to determine 
 the mode, manner, or plan of the improvement. Such an 
 ordinance is void, since powers of this kind must be exer- 
 cised in strict conformity with the charter or incorporating 
 act." So, where a power, for example, the power to issue 
 
 Wis. 88, 1864; Goodrich v. Chicago, 20 HI. 445. Further as to nuisances, 
 see chapter on Ordinances, post. Index — Nuisances. 
 ' State u. Swearingen, 13 Geo. 33. Post, chap. XXn. 
 
 'Thompson ». Schermerhom, 6 K. T. (2 Seld.) 93, 1851, relating to 
 grading and leveling streets; affirming S. C., 9 Barb. 153, and approving, 
 in the main, the views there expressed by Mr. Justice Oady. Same principle 
 applied in similar case, Ruggles v. Collier, 43 Mo. 359, 1869, holding that 
 ■where the charter gave the city power to require streets to be paved, "in 
 all cases where the dty council shall deem it necessary," it could not, by 
 ordinance, make the mayor the judge of the necessity for paving. Re- 
 affirmed but distinguished, Sheehan «. Gleeson, 46 Mo. 100, 1870 ; East St. 
 Louis V. Wehrung, 50 111. 28, 1869. So, where the charter gives the city 
 council power to construct sewers of such "dimensions as maybe prescribed 
 by ordinance," the council cannot, by ordinance, require sewers to be con- 
 structed of such dimensions as may be deemed requisite by the city en- 
 gineer. St. Louis V. Clemens, 43 Mo. 395j 1869, overruling St. Louis v. Eters, 
 86 Mo. 456. See, further. State s.-New Brunswick, 1 Vroom (N. J.) 895, 
 1863 ; Meuser e. Risdon, 36 Cal. 339 ; Hydes v. Joyes, 4 Bush (Ky.) 464 ; 
 post, chapter on Taxation. So, where a charter directed the' common council 
 ta appoint a time when persons interested in an application for opening a 
 street would be heard, the council must itself fix the time, and cannot del- 
 egate that duty to the clerk. If it does so, its proceedings will be set aside 
 
Ch. v.] municipal OHAKTEKS. 181 
 
 licenses, is granted by law, or by an ordinance duly passed, 
 to the mayor and aldermen, they are constituted to act as 
 one deliberative body, to the end that they may assist each 
 other by their united wisdom and experience, and the 
 result of their conference be the ground of their determina- 
 tion ; and where this is the case, the board of aldermen 
 cannot, even by a vote, delegate the power to the mayor 
 alone." But the principle that municipal powers or dis- 
 cretion cannot be delegated, does not prevent a corporation 
 from appointing agents and empowering them to make con- 
 tracts, nor from appointing (3ommittees and investing 
 them with duties of a ministerial or administrative char- 
 acter.' 
 
 Legislative Powers Incapable of Surrender. 
 
 § 61. Powers are conferred upon municipal corporations 
 for public purposes, and as their legislative powers cannot, 
 as we have just seen, be delegated, so they cannot be bar- 
 gained or bartered away. Such corporations may make 
 authorized contracts, but they have no power, as a party, 
 to make contracts or pass by-laws which shall cede away, 
 control or embarrass their legislative or governmental 
 powers, or which shall disable them from performing their 
 public duties." The cases cited illustrate this salutary prin- 
 
 on eertiorcn-i or other direct proceeding. State v. Jersey City, 1 Dutch. (N. 
 J.) 309, 1855 ; State d. Jersey City, 3 II. 444, "447 ; State «. Paterson, 34 
 N. J. Law, 163, 1870. A municipal corporation cannot delegate powers 
 conferred upon and to be exercised by it to a street committee or others. 
 White B. Mayor (sidewalk assessment), 2 Swan (Tenn.) 364, 1853. See Smith 
 V. Morse, 3 Cal. 534; Oakland v. Carpentier, 13 Cal. 540; Whyte «. Nash- 
 ville, 3 Swan (Tenn.) 364. Post, sees. 567, 618. 
 
 ' Day v. Green, 4 Cush. 433, 1849, and cases there cited. Further, as to 
 delegation of power. Coffin v. Nantucket, 5 Cush. 369, 1850 ; Ruggles v. 
 Nantucket, 11 Cush. 433; Clark v. Washington, 13 Wheat. 40, 94, 1837; 
 Cooley, Const. Lim. 304; Railway Co. «. Baltimore, 31 Md. 93, 1863. 
 
 ' Railroad Co. v. Marion Co., 36 Mo. 394; Schenley v. Commonwealth, 
 36 Pa. St. 63. See chapters on Contracts and Corporate Meetings, post. 
 
 ' Milhau V. Sharp, 37 N. Y. 611, 1863; 111. &c. Co. ®. St. Louis, 3 Dillon 
 C. C. Rep. 70 ; Gale v. Kalamazoo (market-house contract), 33 Mich. 344, 
 1871 ; Louisville City Railroad Co. •». Louisville, 8 Bush. (Ky.) 416, 1871 ; 
 People's Railroad ®. Memphis Railroad, 10 Wall. 88, 50, 1869; Presb. Church 
 V. Mayor, &c. of N. Y., 5 Cow. 538, 1836; followed, Stuyvesant v. Mayor, 
 
182 MUNICJPAL CORPORATIONS, [Ch. V. 
 
 ciple in a great variety of circumstances, and, for the pro- 
 tection of the citizen, it ia of the first importance that it 
 shall be maintained by the conrts in its full scope and vigor. 
 
 Mandatory and Discretionary Powers. 
 
 § 62. It often becomes a question whether a duty, im- 
 posed by law or charter upon muj^icipal corporations or 
 public oflScers, is imperative or discretionary. This is a 
 question of legislative intention. The words that a corpo- 
 ration, or officer, "may" act in a certain way, or that it 
 "shall be lawful" to act in a certain way, may be impera- 
 tive. On this subject the cases sustain the doctrine, that 
 what public corporations or officers are empowered to do 
 for others, and which is beneficial to them to have done, the 
 law holds they ought to do, especially if the law supplies 
 them with the means of executing the power. The power 
 in such cases is conferred for the benefit of others ; and the 
 intent of the legislature, which is the test in such cases, 
 ordinarily seems, under such circumstances, to be, to im- 
 
 &c. of N. T., 7 Cow, 588; Sav. Fund e. Philadelphia, 31 Pa. St. 175; Ez 
 parte Mayor, &c. of Albany,- 33 Wend. 277; Railroad Co. o. Mayor, &o., 1 
 Hilt. 562, 568; Martin «. Mayor, &c., 1 Hill (N. T.) 545, 1841; Goszler v. 
 Georgetown, 6 'Wheat. 593; Sedgw. Const, and St. Law, 684; State v. 
 Graves, 19 Md. 351, 373, 1862; Bryson ». Philadelphia, 47 Pa. St. 329; 
 Oooley Const. lam. 206; Albany St., 6 Abb. Pr. R. 273; Britton «. Mayor, 
 &c. of N. Y., 21 How. Pr. R. 251 ; New York v. Second Av., &c. Co., 32 
 N. Y. 361 ; Dingman v. People, 51 111. 277 ; Brimmer v. Boston, 102 Mass. 
 19, 1869 ; Johnson e. Philadelphia, 60 Pa. St. 445 ; State v. Cin. Gas Co., 18 
 Ohio St. 362, 295 ; -Jackson «. Bowman, 39 Miss. 671, 1861 ; Oakland v. Car- 
 pentier, 13 Cal. 540, 1859, opinion of Baldwin, J. ; Smith v. Morse, 2 Cal. 
 534 ; Louisville City Railway ®. Louisville, 8 Bush. (Ky.) 415. Ante, sec. 
 30 and note. Compare Attorney General ». Mayor, &c. of N. T., 3 Duer, 
 119, 131, 147; Davis ». Same, 14 N. Y. (4 Kern.) 506, 533; Costar ». Brush, 
 35 Wend. 628; Brooklyn v. City Railroad Co., 47 N. Y. 475, 1872. One 
 legislature, in the enactment of laws, cannot, by contract, put it out of the 
 power of a subsequent legislature to repeal or amend them; cannot thus 
 surrender a portion of its sovereign' power. Dibolt v. Ins. and Trust Co., 
 1 Oliio St. 564; Plank R. Co. v. Husted, 3 i6. 578, per Bartley, G. J., dis- 
 senting; Matheny v. Golden, 5 Ohio St. 876; Mott v. Pa. Railroad Co., 30jj 
 Pa. St. 9, 1858. But see, in Supreme Court of the United States, Home v.^ 
 Rouse, 8 Wall. 430, and prior cases cited, and the vigorous dissent, lb. 441, 
 which seems, were the question open, to be the sound view. Cooley, Const. 
 Lim. 137, 280 ; Sedg. Const, and St. Law, 616, 633. Post, sees. 318, 567. 
 
Ch. v.] municipal charters. 183 
 
 • 
 
 pose a positive and absolute duty. But, under other cir- 
 cumstances, where the act to be done does lot aflFect third 
 persons, and is not clearly beneficial to them or the public, 
 and the means for its performance are not supplied, the 
 words, "may" do an act, or it is "lawful" to do it, do not 
 mean "must," but rather indicate an intent in the legisla- 
 ture to confer a discretionary power.' Bach case must be 
 largely decided on its own circumstances, and the legisla- 
 tive intent gathered from the whole act. 
 
 § 63, It is, also, sometimes difficult to determine 
 whether specific duties prescribed by the charter or incor- 
 porating act rest upon the corporaiion, or upon the alder- 
 men or other officers named, in their individual capacity. 
 The question is one of construction. The general rule is 
 
 ' Mason ■». Fearson (duty of city under tax law), 9 How. (U. S.) 248, 
 259, per Woodbury, J., and authorities there cited. It is the settled doc- 
 trine in New York, that where a public or municipal corporation or body la 
 invested with power to do an act which the public interests require to be 
 done, and the means for its complete performance are placed at its disposal, 
 tiot only the execution, but the proper execution of the power, may be in- 
 sisted on as a duty, though the statute conferring it be only permissive in 
 its terms. Mayor, &c. of New York v. Furze, 3 HUl, 612, holding corpora- 
 tion liable for omitting its duty to repair sewers, although it would not 
 have been liable for omitting to have constructed them originally. Ap- 
 proved, 16 N. Y. 162, note, per Selden, J. ; per Denio, J., 9 N. Y. 168, 458; 
 per Allen, J., lb. 461. See, further, the chapter on Actions, ^m*, sees. 753, 
 800-803. 
 
 When words are imperaUiie, and when direetory, see further: Grant Corp. 
 34, 35 ; Rex v. Mayor, &c. of Hastings, 5 Bam. & Aid. 593, note ; Attorney 
 General v. Lock, 8 Atk. 164; Rex v. Mayor, &c. of Chester, 1 Maule & Sel. 
 101; Rex®. Bailiffs, &c., 1 Bam. & Cress. 86; 3 lb. 273; Railroad Co. v. 
 Platte Co., 43 Mo. 171 ; Railroad Co. ■». Buchanan Co., 89 Mo. 485 ; Grant v. 
 Erie, 69 Pa. St. 420; Goodrich v. Chicago, 20 111. 445, authority to city 
 "to remove all obstructions in the harbor," held not imperative, lb. Ot- 
 tawa B. People, 48 111. 283 ; Carr v. North Liberties, 35 Pa. St. 324 ; Joliet 
 e. Verley, 35 111. 58; Wilson ». Mayor, &c., 1 Denio, 595. An act that "the 
 city council are hereby authorized to elect a recorder, in whom they may 
 vest excluave jurisdiction of all violations of their ordinances," imposes 
 the duty to elect this officer. The language is injunctive, and not discre- 
 tionary. Vason V. Augusta, 38 Geo. 543, 1868. The expression, in a sup- 
 plemental charter, " U shdl be lawful," construed not to enjoin an impera- 
 tive duty on the corporation. Seiple t Elizabeth, 3 Dutch. (N. J.) 407; 
 Steines ». Franklin Co., 48 Mo. 167, 1871. See^o««, sees. 669-678. 
 
184 MUNICIPAL CORPORATION'S. [Ch. V. 
 
 this : that where powers pertaining to the duties of a cor- 
 poration are conferred upon those who officially represent 
 the corporation, these powers, unless the contrary appear, 
 are deemed to be conferred upon them in their corporate, 
 not their individual, character — in other words, upon the 
 corporation itself/ 
 
 Exemption of Revenues fronl, Judicial Seizure. 
 
 % 64. Municipal corporations are instituted by the 
 supreme authority of a state for the public good. They ex- 
 ercise, by delegation from the legislature, a portion of the 
 sovereign power. The main object of their creation is to act 
 as administrative agencies for the state, and to provide for 
 the police and local government of certain designated civil 
 divisions of its territory.' To this end they are invested 
 with governmental powers and charged with civil, political, 
 and municipal duties. To enable them beneficially to exer- 
 cise these powers and discharge these duties, they are 
 clothed with the authority to raise revenues by taxation and 
 other modes, as by fines and penalties. The revenue of the 
 public corporation is the essential means by which it is en- 
 abled to perform its appointed work. Deprived of its regu- 
 lar and adequate supply of revenue, such a corporation is 
 practically destroyed, and the very ends of its erection 
 thwarted. Based upon considerations of this character, it 
 is the settled doctrine of the law that the taxes and puWic 
 revenues of such corporations cannot be seized under exe- 
 cution against them. Such taxes and revenues cannot be 
 seized either in the treasury or when in transit to it. Judg- 
 ments rendered for taxes, and the proceeds of such judg- 
 ments in the hands of officers of the law, are not subject to 
 execution unless so declared by statute. The doctrine of 
 the inviolability of the public revenues by the creditor is 
 maintained, although the corporation is in debt, and has no 
 
 ' Conrad ». Ithaca, 16 N. T. 158, per Selden, J., ^. 170; Hickok ». 
 Plattsburg, 15 Barb. S. C. 427 ; GMden v. Unity, 10 Fost. (N. H.) 104, 
 I19;i)0««, §778. 
 
 ' Ante, chap. IE. sees. 9 11. 
 
Ch. v.] municipal chaeters. 185 
 
 means of payment but the taxes whicll it is authorized to 
 collect.' 
 
 § 65. Upon similar considerations of public policy, 
 municipal corporations' and their officers have usually, 
 though not uniformly, been considered not to be subject to 
 garnis/iment, although private corporations, equally with 
 natural persons, are liable to this process. The cases on the 
 subject, as respects municipal corporations, are referred to 
 
 ' Edgerton v. Municipality, 1 La. An. 435, 1846, where the subject is 
 ably discussed in the opinion of JBoat, 3. He says: "On the first view of 
 this question there is something very repugnant to the moral sense in the 
 idea that a municipal corporation should contract debts, and that, having 
 no resources but the taxes which are due to it, these should not be sub- 
 jected, by legal process, to the satisfaction of its creditors. This considera- 
 tion, deduced from the principles of moral duty, has only given way to th^ 
 more enlarged contemplation of the great and paramount interests of public 
 order and the principles of government." lb. 440. 9. P. Municipality v. 
 Hart, 6 La. An. 570, 1851. This case holds that a judgment in favor of the 
 corporation for a fine incurred for a violation of a municipal ordinance is 
 exempt from execution ; but that an ordinary debt due the corporation (as 
 on a bond taken for paving) is liable to be seized. But qtmre f In Edger- 
 ton V. Municipality, supra, it was decided that the public taxes and revenues 
 of the corporation could not be seized under execution, notwithstamding the 
 genertil provision%f the Code of Practice of Louisiaila, authorizing the 
 seizure, under execution, of "all sums of money which may be due to the 
 debtor in whatsoever right," — this general language being construed to 
 refer alone to rights of property, and not to taxes imposed for the protection 
 of those rigflts. So in the Eailroad Co. t. Municipality, 7 La. An. 148, 
 1853, it was held that perpetual ground rents, created and intended by the 
 legislature to form part of the permanent revenue of the city to enable it to 
 exercise its municipal powers of police and local government, cannot be sold 
 on execution against the corporation. 
 
 The public nature of municipal corporations is well illustrated by the 
 decision of the Supreme Coxirt of the United States in the late case of The 
 United States ®. The Baltimore & Ohio Railroad Company, Dec. Term, 1873. 
 The case involved the right of Congress to levy a tax upon the income or 
 property of a municipal corporation; and viewing such a corporation as an 
 arm of the state, and partaking of the state's exemption from liability to be 
 taxed upon the means and instrumentalities employed in conducting its 
 operations, it was held that the tax sought to be enforced under the Inter- 
 nal Revenue Act could not be collected. Post, sec. 615 a. See chapter on 
 Taxation, post. Property owned by a city as an investment of funds 
 merely, held liable to seizure on execution. New Orleans «. Insurance Co., 
 23 La. An. 61, 1871. Post, sees. 446, 686, 693, 713. 
 
186 MUNICIPAL CORPORATIONS, [Ch. V., 
 
 in the note, and it will be seen, on examination, that some 
 of them turn on the construction of particular statutes, and 
 that the judges differ in opinion respecting the policy and 
 expediency of subjecting, upon general principles, such 
 • corporations to the process of garnishment. The author 
 suggests, where the question is left entirely open by statute, 
 that, on principle, a municipal corporation should be ex- 
 empt from liability of this character with respect to its 
 revenues and the salaries of its cKficers, but that where it 
 owes an ordinary debt to a third person, the mere incon- 
 venience of having to answer as garnishee furnishes no 
 suflBlcient reason for withdrawing it from the reagh of the. 
 remedies which the law gives to creditors of natural persons 
 and private corporations.' 
 
 ' The Supreme Court of Pennsylvania is of the opinion that, on principle, 
 a municipal corporation or its officers are iiot subject to garnishment on 
 attachment or execution, and that, by the statutes of that state, they are 
 not made liable thereto. Erie v. Knapp, 39 Pa. Bt. 173, 1857; Bulkley ». 
 Eckert, 3 Barr (Pa.) 368, per Sargeant, 3. ; S. P. McDougal ®. Supervisors, 
 4 Minn. 184; Bradley «. Richmond, 6 Vt. 131; Bumham v. Pond du Lac, 
 15 Wis. 198, 1863, where the inconvenience of the opposite doctrine is 
 forcibly pointed out by Paine, 3. ; Drake on Attach,, sec. 516, 10 ; Hadley 
 o. Peabody, 13 Gray, 300. 
 
 In Mimouri, alsp, it is held, upon general principles, that municipal 
 corporations are not subject to garnishment on ac'couat of salary due to 
 their officers. Hawthorn v. St. Louis, 11 Mo. 59, 1847 ; S. P. Fortune ». 
 St. Louis, 33 Mo. 339, 1856, where the decision is placed upon the broad 
 ground that such corporations are not liable to be garnished, and not on the 
 ground that an officer's salary is exempt from such process. See, also,, 
 Neuer v. Pallon, 18 Mo. 377. Since the first edition of this work the Su- 
 preme Court of Missouri has modified in an important respect the broad 
 statement of the doctrine held in the former cases. See Pendleton b. Per- 
 kins and the City of St. Louis, 49 Mo. 565, 1872. It was there held, after 
 great consideratioo, that a city corporation in that state is subject to gar- 
 nishment where th% main debtor has absconded so that judgment cannot 
 be obtained against him and he has no property in the state subject to attach- 
 ment, but has money in the city treasury belonging or due to him, and that 
 it may in such case be reached by bill in equity in the first instance without 
 a previous judgment at law and without showing fraud or other ground of 
 equitable jurisdiction. It was so decided, notwithstanding the garnish- 
 ment act, in terms, exempts municipal corporations from its operation. 
 The opinion of Bliss, C. J., is very full and elaborate. 
 
 In Oonnectimit, public officers having money in their hands, to which an 
 individual is entitled, are not subject to garnishment at the suit of the cred- 
 itors of such individual. StiUman v. Isham, 11 Conn. 138, 1835, and cases 
 
Ch. v.] MUNICIPAL CHARTERS. 187 
 
 cited; Ward v. County of Hartford, 13 11. 404, 408. And in that state, a 
 connty, not having power to contract a debt for which an action will lie 
 against it, is not subject to garnishment in such a case. Ward v. County of 
 Hartford, 13 Conn. 404. But under a statute enabling towns and cities to 
 contract debts, and which provides that debts due from "any person " to a 
 debtor may be attached, these corporations may be factorized or garnished. 
 Bray v. Wallingford, 20 Conn. 416, 1850. 
 
 In Smoot V. Hart, 33 Ala. 69, 1858, it is held that the marshal of a city 
 may be garnished for city funds in his hands; whether the treasurer could 
 be garnished not decided. Mayor v. Rowland, 36 Ala. 498, holds that a 
 municipal corporation cannot be garnished as respects accruing salaries to 
 its officers. See, also, Clark v. School Com., 36 Ala. 631. In Masmehwetta, 
 a county is not chargable as a garnishee for jurors' fees. Williams v. Board- 
 man, 9 Allen, 570. In Ma/ryland, notwithstanding a general statute of the 
 state authorized the garnishment of any "person or persons whatever, cor- 
 porate or sole," it was held that municipalities were not included, and that, 
 upon general grounds of public policy and convenience, the city could not 
 be garnished in respect of money due from the salaries of its officers, 
 although the officer whose salary was attached could havp sued the city 
 therefor. Baltimore v. Root, 8 Md. 95, 1855. The city, in this case, waa 
 garnished, in respect of money due from it to a police officer. 
 
 But in Jfew Hampshire, under a statute making "any corporation pos- 
 sessed of any money " of the debtor subject to garnishment, a town was 
 held to be included. Whidden «. Drake, 5 N. H. 18. See Brown ®. Heath, 
 45 N. H. 185. In Iowa, it was held that the words " debtor orperson hold- 
 ing property," in the attachment act, extended to municipal corporations, 
 and that they were subject to garnishment with respect to ordinary debts 
 which they owed the main debtor. Wales v. Muscatine, 4 Iowa, 303, 1856. 
 The decision of the court asserts the liability to garnishment on general 
 principles; but subsequently the legislature enacted that " a municipal or 
 political corporation should not be garnished." Rev. 1860, sec. 8196. 
 Requisites of notice to corporation, Claffin ». Iowa City, 13 Iowa, 384; 
 Williams v. Keimey, 98 Mass. 143. In Ohio, under a statute which provides 
 that "any claims or choses in action, due or to become due" to the judg- 
 ment debtor, or "money which he may have in the hands of any person, 
 body politic or corporate," are subject to execution, salaries of officers of 
 incorporated cities, due and unpaid, may be subjected by the judgment 
 creditors of such officers to the payment of their judgments, and munidpal 
 corporations may be garnished with respect to such salaries. The court 
 admits the conflict in the decisions of other states upon similar statutes, but 
 regards the construction above given as being in accordance with public 
 policy and the meaning of the statute. Newai-k v. Funk, 15 Ohio St. 463, 
 1864. In Illinois, municipal corporations are not subject to garnishment in 
 any case, no matter what may be the character of the indebtedness. This 
 position is maintained by Lavyrence, J., with great force. Merwin «. Chi- 
 cago, 45 111. 133. Waiver. Clapp t Walker, 35 Iowa, 315. 
 
188 MUNICIPAL CORPORATIONS. [Ch. YI. 
 
 CHAPTER YI. 
 
 Municipal Chaetebs. — Coktintjbd. 
 
 Special Powers and Special Limitations. 
 
 % 66. While miinicipal corporations are instituted for 
 the same general purposes, heretofore explained,' and while 
 there is a striking resemblance in the authority with which 
 they are clothed, yet, except when organized under general 
 acts, the powers given to them are various, both in character 
 and extent." True policy, indeed, requires, as before sug 
 gested, that the powers of these bodies should, in general, 
 be confined to subjects connected with civil government 
 and local administration, but legislatures are usually liberal 
 in grants of this character, and there is no limit to the 
 faculties and capacities with which municipal creations 
 may be endowed, unless that limit is contained in the state 
 constitution.' The leading powers ordinarily possessed by 
 municipalities, such as those relating to contracts, eminent 
 domain, streets, taxation, ordinances, corporate oflBLcers, 
 actions, and the like, will be, hereafter, separately treated. 
 But it will be convenient to notice, in this place, some 
 special powers usually or often conferred upon munici- 
 palities, and some special limitations upon ordinary muni- 
 cipal powers, and the construction which such provisions 
 have judicially received. We shall here consider the fol- 
 lowing subjects as they relate to municipal corporations : 
 1. Wharves. 2. Ferries. 3. Borrowing Money. 4. Limita- 
 tions on the Power to Create Debts. 5. Eewards for Offend- 
 ers. 6. Public Buildings. 7. Police Powers and Regula- 
 tions. 8. Prevention-of Fires. 9. Quarantine and Health. 
 10. Indemnifying Officers. 11. Furnishing Entertainments. 
 
 • Ante, chaps. I., II. ; supra, sees. 63, 64. 
 ' Ante, sec. 19. 
 
 • Aurora «. West, 9 Ind. 74, 1857; ante, chap. 17. 
 
Ch. yi.] municipal chaktees. 189 
 
 12. ImpoundiTig Animals. 13 Party Walls. 14. Public 
 Defence. 15. Aid to RaDway Companies. 
 
 Wharxies. 
 
 % 67. Among the powers of a special and extra-mnnicipal 
 nature freqiiently conferred by the legislature upon muni- 
 cipal corporations bordering upon the high seas or navi- 
 gable waters, is the authority to erect wharves, and charge 
 wharfage as a compensation for keeping the same and their 
 approaches in a proper and safe condition for the landing, 
 loading, and unloading of vessels.' The authority of the 
 State- OTer navigable waters, and the shores, is, of course, 
 subject to the constitution of the United States, and the 
 laws made in pursuance thereof regulating commerce, and 
 the admiralty jurisdiction of the federal courts." But al- 
 though the power to erect wharves and charge wharfage is 
 not strictly one relating to municipalities, it is, nevertheless, 
 competent for the legislature to make them, in such measure 
 as it deems expedient, the repository of it.' 
 
 ' Commonwealth o. Alger, 7 Cush. 53, 83, 1831 ; Pollard's Lessee ». Ha- 
 gan, 3 How. (XJ. 8.) 312; Municipality ». Pease, 3 La. An. 538, 1847; Wors- 
 ley B. Municipality, 9 Kob. (La.) 834; New Orleans*. United. States, 10 Pet. 
 663, 737; The Wharf Case, 8 Bland Ch. (Md.) 388; 111. &c. Co. «. St. 
 Louis, 3 Dillon C. C. R., 70, 1873. 
 
 ' State and authorized municipal jAlot amd Tiwrbor regulations, when not 
 in conflict with* the federal constitution or federal legislation, are valid. 
 Steamship Co. v. JolifFe, 3 Wall. 450 ; Cooley v. Board of Wardens, 13 How.' 
 (U. S.) 296; Pollard's Lessee v. Hagan, 3 lb. 313; Cisco v. Koberts, 86 
 N. Y. 393; Port Wardens «. Ship, &c., 14 La. An. 389, 1859; Same «. Pratt, 
 10 Rob. (La.) 459 ; Chapman v. Miller (pilotage fee), 3 Speers (South Car.) 
 Law, 769 ; Alexander v. Railroad Co. (duty on tonnage), 3 Strob. (South 
 Car.) Law, 594, 1847; State v. City Council, 4 Rich. (South Car.) Law, 
 386; Commonwealth v. Alger, 7 Cush. 63, 83, 1850; Worsley «. Munici- 
 ■ pality, above cited; JefEersonville v. Ferry Boat, 35 Ind. 19, 1870. But 
 state enactments, which amount to a regulation of commerce or impose a 
 duty on tonnage are, of course, void. Steamship Co. v. Port Wardens, 6 
 Wall. 81, 1867. See, also. United States v. Duluth, 1 Dillon C. C. 469 ; 
 Packet Co. ». Atlee, 3 Dillon C. C. R., 1878. 
 
 • Puller V. Edings, 11 Rich. (South Car.) Law, 289, 1858 ; Waddington 
 c. St. Louis, 14 Mo. 190, 1851 ; Baltimore v. White, 3 Gill. (Md.) 444, 1845; 
 Wilson V. Inloes, 11 Gill. & J._(Md.) 351. The owner of a private wharf, 
 whose land is compulsorily taken for a public wharf, is not necessarily en- 
 
190 MUNICIPAL CORPORATIONS. [Ch. YI. 
 
 It may authorize a municipal oorporaMon to establish a 
 public wharf upon private properiiy on making compensa- 
 tion to the owner of the land ; and the power, when con- 
 ferred upon the municipality, cannot be arrested by an 
 offer on the part of the land- owner himself to erect a 
 wharf.' 
 
 § 68. Wharves, piers, quays, and landing places, may 
 be either public or private. Th#y may be, in their nature, 
 public, although the property be owned by an individual. 
 If private, the public have no right to use the erection with- 
 out the owner's consent, express or implied ; if public, they 
 may be used by persons generally upon the payment, of a 
 reasonable compensation. Whether they are public or 
 private depends, in case of dispute, upon circumstances, 
 such as the purpose for which they were built, the uses to 
 which they have been applied, the place where located, and 
 the character of the structure.' 
 
 § 69. The keeping of a wharf or dock, erected and 
 opened to the public, like the keeping of an inn, confers a 
 general license to boats and vessels to occupy it for lawful 
 purposes — a license which can only be terminated by 
 notice and request to remove the vessel.' When thus es- 
 
 titled to be compensated for Ion of income from his private wharf, resulting 
 in the establishment of the public wharf near to the private one. Fuller «. 
 Edings, supra. The grant of an exclusive right to keep a wharf, in order 
 to secure its erection, does not violate the provision of a state constitution, 
 declaring " that no man or set of men are entitled to exclusive, separate, 
 public emoluments or privileges from the community, but in consideration 
 of public services." Such an improvement is beneficial to the public, and, 
 in order to secure it, the exclusiye profits for a given period may be granted 
 . to the contractor. Martin v. O'Brien, 34 Miss. (5 George) 21, 1857 ; see, also, 
 Geiger «>. Filor, 8 Flor. 335, 1859. 
 
 ' Waddington «. St. Louis, above cited ; Iron R. R. Co. o. Ironton, 19 
 Ohio St. 299, 1869; Page v. Baltimore, 34 Md. 558, 1871; State «. Jersey 
 City, 34 N. J. Law, 390. 
 
 » Button V. Strong, 1 Black (U. S.) 23, 1861. The owner ot&prvBaU 
 pier may, it was held in this case, cut loose a vessel attached to it without 
 a license if the pier be thereby endangered, no matter how great the stress 
 of the weather or the peril to which the vessel'may be thereby subjected. 
 
 ' Heeney «. Heeney, 2 Denio, 625 ; Nicoll ®. Gardner, 13 Wend. 289, 
 
Ch. yi.] municipal charters. 19] 
 
 tablished, the owner at common law is, as respects the pub- 
 lic, bound to keep it in good repair. In view of these 
 obligations on the part of the owner of the wharf, the com- 
 mon law gave him the right to distrain for his wharfage or 
 toU.' 
 
 § 70. By the common law, the riparian owner has the 
 right to establish a wharf on his own soil, this being a law- 
 ful use of the land." The right is judicially recognized in 
 this country, and riparian proprietors on ocean, lake, or 
 navigable river, have, in virtue of their proprietorship, and 
 without special legislative authority, the right to erect 
 wharves, quays, piers, and landing places on the shore, if 
 these conform to the regulations of the state for the protec- 
 tion of the public, and do not become a nuisance by ob- 
 structing the paramount right of navigation. This right 
 has been exercised by the owners of the adjacent land from 
 the first settlement of, the country. The right terminates 
 at the point of navigability, unless special authority be con- 
 ferred, because at this point the necessity for such erections 
 ordinarily ceases. Such structures are presumptively law- 
 ful where they are confined to the shore, and no positive 
 law is violated in their erection.' 
 
 1835; Lansing v. Smith, 4 Wend. 9; Button v. Strong, 1 Black, 33, dis- 
 tinguished from Heeney ®. Heeney, supra. 
 
 ' Hale de Port. Maris, 77; Bradley on Distress, 133; NicoU v. Gardner, 
 13 Wend. 289. The right of distress is regulated by statute in the city of 
 New York, and it was there held, that where wharfage accrued in the 
 seventh ward, the owner of the wharf might distrain therefor in the 
 eleventh ward. 13 Wend. 289. See Lansing ®. Smith, 4 Wend. 9, 31. 
 Wharfage is not properly a tax, like that levied to support government, 
 but rather compensation paid by owners of vessels for accommodation for 
 their boats and merchandise. Swartz v. Flatboats, 14 La. An. 243, 1859. 
 If a city is entitled to the wharfage from public wharfs, and the owner of 
 a lot adjacent to such wharf receives wharfage, he is liable to the city 
 therefor. Baltimore v. White (assumpsit), 3 Gill (Md.) 444. The right, as 
 between private persons and a city corporation, to the moneys collected 
 for wharfage, may be tried in an action for money had and received. 
 Murphy v. City Council, 11 Ala. 586, 1847. See Grant v. Davenport, 18 
 Iowa, 179. 
 
 ' NicoU V. Gardner, 18 Wend. 389, 1835, per Mlson, 3. ; Lansing v. 
 Smith, 4 Wend. 9, affirming S. C, 8 Cow. 146; Heeney «. Heeney, 3 Denio, 
 635. 
 
 ' Heeney v. Heeney, 3 Denio, 685 ; Dutton v. Strong (action of trespass 
 
192 MUNICIPAL OOEPOBATIONS. [Ch. VL 
 
 § 71. The right of riparian proprietors, in respect to 
 the erection of wharves, are subject to such reasonable lim- 
 itations and restraints as the legislature may think it neces- 
 sary and expedient to impose. Therefore it is competent 
 for the legislature to pass acts establishing harbor and dock 
 lines, and to take away the right of the proprietors to 
 build wharves on their own land beyond the lines, even 
 when such wharves would be no actual injury to naviga- 
 tion.' * 
 
 by owner of vessel against owner of private pier for cutting the vessel 
 loose), 1 Black (XT. S.) 23, 1861, distinguished from Heeney ®. Heeney, 
 above cited. Same principle reaflBrmed, Railroad Co. ». Schurmier. 7 
 Wall. 373 ; Yates «. Milwaukee, 10 Wall. 497 ; State t. Jersey City, 1 Dutch. 
 (N. J.) 535, 530 ; Wetmore ®. Brooklyn Gas Co., 43 N. T. 384 ; Galveston ®. 
 Menard, 33 Texas, 349; Grant v. Davenport, 18 Iowa, 179, per Wright, J. 
 But in California, see Dana «. Jackson, &c. Co. 31 Cal. 118. As to right 
 to erect wharf by other than riparian owner, on a tidal river, below high 
 water mark, qumre,see Hagan v. Campbell, 8 Port. (Ala.) 9. In this case it 
 is said : "It is clear that no part of such erections can be rested upon the 
 lands of the riparian proprietor, nor can he be excluded from the use of the 
 water, or denied other riparian rights." ,See People «. Davidson, 30 Cal. 
 879; Packet Co. v. Atlee, 3 Dillon C. C. B., 1873. 
 
 ' Commonwealth e. Alger, 7 Cush. 53, 1851. This subject is here very 
 fully and learnedly discussed and examined. See, also. Hart ■». Mayor, 9 
 Wend. 571, valuable case, afBrming 3 Paige, 313 ; Wetmore v. Brooklyn 
 Gas Co., 43 N. Y. 384; People ®. Vanderbilt, 26 N. Y. 287; Same v. Same, 
 28 N. Y. 396; Pollard's Lessee v. Hagan, 3 How. (U. S.) 312; Hagan e. 
 Campbell, 8 Port. (Ala.) 9 ; Mobile s. Eslava, 9 Port. (Ala.) 577, 1839 ; 
 Railroad Co. ii. Winthrop, 5 La. An. 36. In Yates n. Milwaukee, 10 Wall. 
 497, Mr. Justice Miller, on behalf of the court, speaking of an existing 
 wharf, denied that the city of Milwaukee, under the power to establish dock 
 and wharf lines, could create an artificial and imaginary dock line, hun- 
 dreds of feet away from the navigable part of the river, and without 
 making the river navigable up to that line, deprive the riparian owners of 
 the right to avail themselves of the advantages of the navigable channel 
 by building wharves and docks to it for that purpose, and said, that if the 
 city deemed the removal of the wharf in question necessary in the prosecu- 
 tion of any general scheme of widening the channel or improving the navi- 
 gation of the river, it must first make the owner compensation for his prop- 
 erty thus taken for the public use. 
 
 Municipal control, under legislative grant, over right of riparian owner 
 to wharf out: Baltimore v. White, 2 Gill (Md.) 444, 1845; Wilson v. Inloes, 
 11 Gill & J. (Md.) 351. Where, under acts of the legislature, a city hiad 
 the power to refuse assent to riparian owners to erect wharves, or to allow 
 it upon such terms as they deemed beneficial to navigation and the use of 
 
Ch. VI.] MUNICIPAL CHARTERS. igg 
 
 § 72. While the riparian proprietor has the right to 
 erect wharves, which are private in their nature, but which 
 may be used by the public by the consent of the owner, 
 express or implied, the right to erect public wharves and to 
 demand tolls or fixed rates of wharfage is, according to the 
 better view, a franchise, which must have its origin in a leg- 
 islative gBant.' 
 
 § 72. If a municipality \b itself a riparian proprietor, 
 this will probably give to it, in the absence of any restrictive 
 provision in its organic act, the implied authority to erect a 
 wharf thereon, and it would have the incidental right, the 
 same as a private owner, to charge compensation for its use." 
 
 the port of that cdty, it was held, that the city might make the grant of the 
 right to erect a wharf upon the condition that its exterior margin should 
 constitute a pvhUe wharf. Baltimore ». White, supra. 
 
 ' People o. Wharf Company, 31 Oal. 34; The Wharf Case, 3 Bland Ch. 
 (Md.) 383; Wiswall v. Hall, 3 Paige Ch. 313; Houck on Rivers, sec. 283; 
 Thompson ». Mayor, 11 N. T. 115. See, as to navigator's right to moor 
 and land, Bainbiidge v. Sherlock, 39 Ind. 364 ; Talbott «. Grace, 30 Ind. 
 389; Jeffersonville 0. Ferry Company, 37 Ind. 100; S. C, 35 Ind. 19, 1870. 
 State Oourta have jurisdiction of suits for wharfage against domestic ves- 
 sels, lb. 35 Ind. 19, 33; The Phebe, Ware Rep. 360;.Russel ». The Swift, 
 Newb. R. 553; ex parte Lewis, 3 Gallis. 483. 
 
 » Murphy ». City Council, 11 Ala. 586, 1847. The court say: "The title 
 to the wharf is in the city, and, such being the fact, it had the same right 
 as any other proprietor to collect wharfage from those landing goods there. 
 This right, resulting from its proprietary interest, is not a franchise, but a 
 right of property." Ih. per Ormond, J., p. 558. The city of Boston has, 
 under the laws of Massachusetts, the same rights as other littoral proprie- 
 tors, and was held not to dedicate a dock, which it owned, to the public, 
 by merely abstaining from any control over it. The court observe : " The 
 people of Boston, who owned the land as their common and private prop- 
 erty, acted through a corporation (the city), whose corporate grants and 
 licenses are matters of record. Their own use of their own property for 
 their own benefit cannot be called a dedication of it to any other public of 
 wider extent. Whetherit was called "town dock" or "public dock " (which 
 were used as synonymous terms), it would furnish no ground to presume 
 that they had parted with their right to govern and use it in the manner 
 most beneficial to the people or public of the town or city." Boston ». Le- 
 craw, 17 How. (U.S.) 426, -1854, Commonwealth v. Roxburyj 9 Gray, 514,, 
 519, and note. Bonaflde purchaser of a wharf in the city of Baltimore, 
 erected under contract with the city, and in which the city had certain 
 rights, held affpcted, with notice of those rights. Baltimore «. White, 2 
 Gill (Md.) 444. 
 13 
 
194 MUNICIPAL CORPORATIONS. [Oh. VL 
 
 Its rights would be the same as those of any similar pro- 
 prietor, and no greater, unless enlarged by legislative grant. 
 
 § 74. All the powers of a mimicipality in respect to 
 wharves and docks, must, like all its other powers, be derived 
 from the legislature.' In regard to private wharves lawfully 
 erected, the municipal authorities have only such powers of 
 local regulation and government as their charters or con- 
 stituent acts, in general or special ^erms, confer upon them.' 
 Their own right to erect wharves may be express or implied. 
 The power, even when conferred in terms, is, like other 
 powers, to be construed somewhat strictly when it affects 
 private rights, but not so strictly as to defeat the purpose 
 of the grant.' Thus, although the corporate boundaries 
 
 " Snyder v. Rockport, 6 Ind. (Porter) 237, 1856 ; Railroad Company a, 
 Winthrop, 4 La. An. 36 ; State «. Jersey City, 34 N. J. Law, 81. While a 
 city may be enjoined; at the instance of a tax-payer, from raising taxes or 
 appropriating money for the unauthorized construction of a wharf, it will 
 not be restrained from exercising a clear power to grade streets, merely be- 
 cause, by such grstding, a wharf at the river end of the street will incident- 
 ally result. Snyder ». Rockport, above cited. As to right of municipal 
 corporation to erect, or allow others to erect, wharf at terminus of street, 
 see Doe «. Jones, 11 Jila. 63. In Galveston ». Menard, 33 Texas, 349, 1859, 
 the right of the city, under a grant from the legislature to build and con- 
 trol wharves in front of the streets is affirmed. In Newport v. Taylor, 16 B. 
 Mon. 699, 1855, it was decided that the city might build wharves on prop- 
 erty dedicated as a "common," along a navigable river. See also, Louis- 
 ville ». Bank, 3 B. Mon. 144; Kennedy ®. Covington, 8 Dana, 61. The city 
 of Dubuque, under its charter, was held to have power to prohibit all per- 
 sons, including riparian owners, from using any place but the public wharf 
 without paying wharfage. Dubuque «. Stout, 33 Iowa, 80. 
 
 " Grant ®. Davenport, 18 Iowa, 179, 1865. Where the charter of a city 
 authorizes it "to regulate the erection and repair of prvoate wharves and 
 the rates of wharfage thereat," " the city," says WrigM, C. J., " may regvr 
 late, but not destroy ; may exercise control as over other private property 
 within its limits, but not to the extent of appropriating the use and enjoy- 
 ment thereof to the public without compensation. 11. Liability of city 
 corporation for an injury to a private wharf, caused by diverting streams of 
 water to a point near the wharf, thereby causing a great deposit of sand and 
 earth, which lessened the depth of water at the wharf and impaired its 
 value. Baron a. Baltimore, 3 Am. Jurist, 203, cited and approved in Stet- 
 son ®. Faxon, 19 Pick. 147, 1858, and see, also, Thayer s. Boston, 19 Pick. 
 510. 
 
 " As to the extent of municipal power over public and private wharves 
 and the respective rights of the riparian owner and municipal authorities! 
 
Cu. VI.] MUNICIPAL CHARTERS. . I95 
 
 may by the charter be extended to low water mark, and the 
 corporation has express power "to regulate the erection 
 and occnpation of all wharves or levees within the corporate 
 limits," this does not give the corporation as against the 
 riparian proprietor (whose right was construed to extend to 
 low water mark), the power to control the river bank so as 
 to rec[uir© such proprietor or his lessee to take out a license 
 for his wharf -boat, fastened to the shore of his own land, 
 and used for business purposes.' 
 
 § 75. So where a riparian proprietor had constructed a 
 wharf which extended to, but did not encroach upon, the 
 navigable part of the river, and which was not shown to be 
 a nuisance in fact, it was held by the Supreme Court of the. 
 United States that the city within which the wharf was 
 situated could not, under the charter power to establish 
 dock and wharf lines and restrain and prevent encroach- 
 ments upon the river and obstructions thereto, pass an 
 ordinance declaring the wharf to be an obstruction to navi- 
 gation, and a nuisance, and ordering it to be summarily 
 abated.' 
 
 concerning wharves and wharfage: Grant v. Davenport, 18 Iowa, 179, 1865; 
 Cincinnati a. Walls, 1 Ohio St. 233 ; Muscatine v. Hershey, 18 Iowa, 39 ; Gal- 
 veston «. Menard, 33 Texas, 348 ; Baltimore ». White, 2 Gill (MA.) 444, 1845 ; 
 Furman v. New Tork, 5 Sandf. S. C. 16; affirmed, 10 N. Y. 567; Dugan v. 
 Baltimore, 5 Gill & Johns. (Md.) 357, 1833 ; reversing S. C, 3 Bland Ch. 361 ; 
 Wilson V. Inloes, 11 Gill & Johns. (Md.) 358 ; Shepherd ®. Municipality, 6 
 Rob. (La.) 349; Columbus v. Grey, 3 Bush (Ky.) 476; Kennedy v. Coving- 
 ton, 17 B. Mon. 567 ; Commissioners v. Neil, 3 Teates (Pa.) 54 ; Richardson 
 t). Boston, 34 How. (U. S.) 188; S. C, 19 lb. 263; 17 lb. 426; Newport d. 
 Taylor, 16 B. Mon. 699, 1855; Commonwealth «. Roxbury, 9 Gray, 514, 
 519, and note by Mr. (since Judge) Gray ; Trowbridge v. Mayor (right of 
 Albany under Dongan charter), 7 Hill (N. T.) 439; S. C, 5 i J. 71 ; Hart v. 
 Mayor, 9 Wend. 571 ; Lansing «. Smith, 4 Wend. 4 ; Thompson «. Mayor, 
 11 N. T. 115; Marshall c. Guion, lb. 461; Corporation 0. Scott, 1 Caines, 
 543. Principles of construction, ante, sec. 55, and notes. 
 
 The powers of a municipality in respect to wharfage are subject to the 
 unlimited control of the legislature, except so far as the rights of creditors 
 may be impaired. St. Louis*. Shields, Sup. Ct. of Mo., 1873, not yet re- 
 ported. Ante, sec. 41. 
 
 ' McLaughlin ■». Stevens 18 Ohio, 94, 1849; Blanchard v. Porter (extent 
 of riparian right), 11 Ohio, 138, 144; Muscatine v. Hershey, 18 Iowa, 89; 
 Martin v. Evansville, 33 Ind. 85, 1869. 
 
 " Yates V. Milwaukee, 10 Wall. 497, 1870. 
 
196 MTINICIPAL COEPORATIONS. [Ch. VL 
 
 § 76. If the right to impose wharfage is given to a mxini- 
 cipality, but not limited, the question of the amount which 
 the municipal authorities may exact is confided to their dis- 
 cretion, and is one with which the courts cannot interfere, * 
 unless, perhaps, in a case where the by-law imposing it is 
 plainly unreasonable. But the amount of tolls or wharfage 
 may, of course, be regulated by the legislature." 
 
 § 77. The interests of commerce imperatively require 
 that public wharves should be in a safe condition; and if a 
 municipal corporation is in possession of such a wharf and 
 exercises control over it, and receives tolls for its use, it 
 owes a duty to the public to keep it in proper and secure 
 condition for use, and it is liable, without statutory enact- 
 ment to that efi'ect, to an action for any special injuries to 
 boats and vessels caused by its failure to discharge this 
 duty. In such a case it is not material whether the city had 
 adopted ordinances for the regulation of the wharf, or, hav- 
 ing such, neglected to enforce them, as in either event the 
 responsibility is the same." 
 
 'Municipality®. Pease, 2 La. An-. 538, 1847; Muscatine o. Hershey, 18 
 Iowa, 39, 42, 1864, per Wright, J. 
 
 * ' Baltimore n. White, 2 Gill (Md.) 444, 1845; Murphy u. City Council, 
 11 Ala. 686, 1847. Authority to a city "to erect, repair, and regulate 
 wharves and the rates of wharfage," authorizes it to collect wharfage upon 
 goods landed on the bank, the space in front of the city being dedicated to 
 the public, although no artificial wharf was erected. Sacramento v. Steamer 
 4 Cal. 41. This subject is discussed by Wright, J., in Muscatine v. Hershey) 
 18 Iowa, 39, but the point is not decided by the court. Dubuque a. Stout, 
 33 Iowa, 47, 80, 1871. In Kentucky, however, it is held that the owner of 
 the land must build wharves, or improve the shore, or make some prepara- 
 tion for the reception or delivery of goods, or accommodation of vessels, 
 before he is entitled to collect tolls or wharfage. Columbus ». Grey, 2 Bush 
 (Ky.) 476. If he permits the municipal authorities to so improve the 
 wharves, he will only be entitled to reasonable compensation for the use of 
 the river bank. lb. The word "quay" defined hy McLean, J., in New 
 Orleans v. United States, 10 Pet. 661, 715. 
 
 ' Pittsburg ». Grier, 23 Pa. St. 54, 1853. " This case," saysP«r%, C. J., 
 in Eastman «. Meredith, 86 N. H. 384, 396, "is put distinctly upon the 
 ground that the public duty, which was the foundation of the action, arose 
 out of the control which the city exercised over the wharf, and the income 
 received for the use of it." That the right to collect wharfage by the city 
 imposes the duty to keep in repair, and a correlative liability, has been often 
 
ch. yi.] municipal charters. 197 
 
 Ferries. 
 
 § 78. It is not unusual for tlie legislature to make to a 
 municipal corporation a more or less extensive giant res- 
 pecting ferries and ferry francMses. Sacli a grant is not, 
 unless otherwise expressed, a compact whicli cannot be im- 
 paired, but, in tbe nature of a public law, subject to be 
 repealed or changed, as the public interests may demand.' 
 If the legislature has conferred, as in some of the ancient 
 charters in England and in this country, upon a municipal 
 corporation, its voTiole power, to establish and regulate 
 ferries within the corporate limits, the corporation thus rep- 
 resenting the sovereign power may make an exclusive 
 grant.' But such a corporation has not an exclusive power 
 )ver the< subject, unless, by express words or necessary in- 
 ference, it be plainly and clearly given to it by the legisla- 
 ture. Hence, power to a municipality to establish and 
 regulate ferries within its limits, does not give it an exclusive 
 power, and consequently does not anthorize it to confer an 
 exclusive privilege upon others to establish a ferry," 
 
 determined. Shinkle v. Covington, 1 Bush (Ky.) 617, where there was a 
 failure to provide proper fastenings for boats. People v. Albany, 11 WendP. 
 539, 543; Buckbee v. Brown, 31 Wend. 110; Mersey Dock Trustees®. Gibbs, 
 1 Law R. H. L. 93. Lessee of city is under like liability. Radway v. Briggs, 
 37 N. Y. 356. 1867. In form, the action in such a case against the city may 
 be either ease or assumpsit. Pittsburg v. Grier, 33 Pa. St. 54, 1853. But it 
 is no defence to on action by a city for wharfage, that the wharf is not well 
 built and needed further improvement or repairs. Prescott v. Duquesne, 48 
 Pa. St. 118; Jeffersonville v. Perry Company, 37 Ind. 100; Same case, 
 35 Ind. 19, 1870,; Winpenny ». Phila., 65 Pa. St. 185, 1870. Where it was 
 rendered unsafe by acts of others, notice, express or implied, is an element 
 necessary to liability, the same as in the case of defective highways. Sea- 
 man V. New York, 8 Daly (N. Y.) 147. Post, aeo. 789. 
 
 » Bast Hartford v. Hartford Bridge Co., 10 How. (U. S.) 511, 1850. 
 Ante, sec. 40. As to extinguishment of ferry franchise by a subsequent 
 legislative grant to build a bridge at the site of the ferry, and take tolls, 
 see Charles River Bridge v. Warren Bridge, 11 Pet. (U. S.) 430, 1887. Con- 
 struction of special grant, Hartford Bridge Co. ■». Perry Co., 39 Conn. 310. 
 
 ' Costar B, Brush, 35 Wend. 638, 1841. 
 
 • Mintum v. Larue, 38 How. (U. S.) 435, 1859; Harrison v. State, 9 Mo. 
 636, 1845 ; McEweri a. Taylor, 4 G. Greene (Iowa) 533. Ante, sec. 55, note. 
 
198 MUNICIPAL CORPOBATIONS. [Ch. VL 
 
 § 79. By its charter, a city was empowered "to license, 
 continile, and regulate," as many ferries within its limits, 
 to the opposite shore of a river bounding it, as the public 
 good required, and the common council were further 
 authorized "to direct the manner of issuing and registering 
 the licenses, and to prescribe the sum of money to be paid 
 therefor into the treasury of the corporation." Under this, 
 an ordinance prohibiting all persons from ferrying, without 
 a license from the mayor, and authorizing this officer to 
 grant licepses to any person upon payment into the treasury 
 of the city of the sum of the sum of fifty dollars, was sus- 
 tained against the objections that there was no power to 
 'prohibit ferrying without a license, and that the license 
 fee was a tax. The words of the charter — "To prescribe 
 the sum of money to be paid into the treasury of the corpo- 
 ration,"— were regarded by the court as showing a clear 
 intent to make licenses a source of revenue to the city ; and 
 the court added, that the amount charged as a license fee 
 did not appear to be unreasonable.' 
 
 § SO. If a municipal corporation seized of a ferry, lease 
 the same, through the agency of the mayor and aldermeji, 
 with a covenant for quiet enjoyment, this covenant will not 
 restrain the mayor and aldermen from exercising the powers 
 vested in them by statute, to license another ferry over the 
 same waters, if, in their judgment (which cannot be re- 
 viewed by the coui-tg), the public necessity and convenience 
 require it. On such a covenant the city may be liable to 
 the covenantees ; but the powers vested in the city officers, 
 as trustees for the public, cannot be thus abrogated. If, 
 however, the city, in its corporate capacity, is the legal 
 owner of an exclusive franchise, its grantees or lessees would 
 hold it, notwithitanding any license to others, whether 
 granted by the mayor and aldermen or any other tribunal." 
 
 ' Cbilvers v. People, 11 Mich. 43, 1863. As to distinction between a 
 license fee and a tax, see Ash v. People, 11 Mich. 347, and the chapters on 
 Ordinances and Taxation, post, sees. 391, 609. Amount of license city may 
 exact, the state law on the suhject being held to affect the city, Reddick v. 
 Amelia, 1 Mo. 5, 1831. 
 
 ' Fay, Petitioner, 15 Pick. 343, 1834. The court will not try on cer- 
 tiorm the conflicting titles of parties to a ferry franchise. II. Ante, chap. 
 V. sec. 61. 
 
Ch. VI.] MUNICIPAL CHARTERS. 190 
 
 Borrowing Money. 
 
 % 81. We will hereafter treat of the implied power of 
 municipal corporations to issue negotiable securities. But 
 this is a different question from the power to borrow 
 money. The power to borrow may be given in express lan- 
 guage, in which case the terms and purpose of the grant 
 will measure its extent. But suppose the power is not ex- 
 pressly conferred, does it exist by implication ? It is per- 
 haps settled law, that private corporations, organized for 
 pecuniary profit, have, unless specially restricted, an in- 
 cidental authority to borrow money for their legitimate 
 purposes, and to give the usual obligations for its re-pay- 
 ment.' The question of the implied authority of municipal 
 corporations to borrow money has not, perhaps, been so 
 often or so thoroughly considered as to be entirely closed 
 
 to controversy. In view of the legislative practice to confer, 
 
 • 
 Rights of municipal corporations in connection with ferries and extent 
 of legislative control; see Fanning b. Q-regoire et al., 16 How. (U. S.) 534, 
 1853; East Hartford «. Hartford Bridge Co., 10 Ih. 511 ; affirming B. C, 16 
 Conn. 149; 17 Conn. 80, 96; Chilvers «. People, 11 Mich. 43; O'Neill*. 
 Police Jury, 21 La. An. 586; Aiken v. Railroad Co., 30 N. Y. 870, 1859, 
 relating to the ferry rights of the city of Albany ; Benson ®. Mayor, &c. of 
 New York, 10 Barb. 333; Harris ». Nesbit, 24 Ala. 398; United States®. 
 Fanning, Morris (Iowa), 848; Conner «. New Albany, 1 Blackf. (Tnd.) 43; 
 City B. Ferry Co., 27 Ind. 100; Shallcross «. Jeffersonville, 36 Ind. 193. The 
 right of a city, given by charter, to license and tax ferries, is not, unless so 
 expressed, exclusive of a like right in the state or county. Harrison «. 
 State, 9 Mo. 526, 1845. "Power, to regulate ferries," given to municipal 
 corporations in general incorporation act, construed, DuckwaU ®. New 
 Albany. 25 Ind. 283. When equity will annul lease, Phillips v. Blooming- 
 ton, 1 Gr. Greene (Iowa) 498. Upon dimsion of an old town owning ferry 
 franchise, the new town owns no interest therein except so far as conferred 
 by the legislature. Hartford Bridge Co. e. East Hartford, 16 Conn. 149 ; 
 post, Chap. Vn. 
 
 ' Stratton v. Allen, 16 N. J. Eq. 339 ; see ante, sec. 37, and chapter on 
 Contracts, poet, sec. 407. But see observations of Bj/les, J., in Bateman v. 
 Mid-Wales Railway Co., Law Rep. 1 C. P. 510, 1866, as to powers of com- 
 mon-law corporations in respect to drawing, accepting, or indorsing nego 
 tiable securities. The court in this case deny (in the absence of express 
 legislative authority conferring the power) that it is competent to a com- 
 pany incorporated in the usual way for the formation and working of a 
 railway to draw, accept, or indorse bills of exchange. 
 
MUNICIPAL CORPORATIONS. [Ch. VI. 
 
 in terms, aU powers so important as this, the dangerous 
 nature of this power by reason of the temptation it holds 
 out to incur needless debts and to make extravagant ex- 
 penditures, and the facilities it oflters for frauds, and the 
 settled and salutary doctrine that such corporations have 
 no powers but such as are expressly conferred, and those 
 which are necessary to effect the objects of the corporation, 
 and those which are incidental to the express grants, the 
 author would be strongly inclined %o deny the existence of 
 an implied power to borrow money. But it must be ad- 
 mitted that the few express adjudications on the subject 
 favor the contrary opinion. 
 
 § 82. The question arose in Ohio, in 1836, and was fully 
 argued and considered. The town of Chillicothe possessed 
 authority to purchase real estate, erect public buildings, 
 repair streets, and the usual municipal powers. The right 
 tq borrow money was Tiot expressly granted, and the only 
 question in the case (an action upon the bonds of the town 
 given for borrowed money) was, whether it was granted by 
 implication. The case was regarded as of the first impres- 
 sion, no authorities in point being produced. The court 
 distinctly decided, that in carrying out the express powers, 
 or in effecting any legitimate municipal object, the corpora- 
 tion possessed the incidental or implied right to borrow 
 money.' And subsequently the Supreme Court of Wis- 
 consin affirmed the implied authority of a municipal cor- 
 poration, as incidental to the execution of the general 
 powers granted by its charter, and in the absence of a spe 
 cial restriction, to borrow money and issue its bonds there- 
 for, it appearing that the proceeds thereof went into the 
 treasury of the city and were expended by it." " The 
 charter," says the court, stating its reasons, "does confer 
 thp power to purchase fire apparatus, cemetery grounds, 
 etc., to establish markets, and to do many other things, for 
 the execution of which money would be necessary as a 
 means. It would seem, therefore, that in the absence of any 
 
 ' Bank ». Chillicothe, 7 Ohio, part II. p. 31, 1836. 
 
 " Mills v. Glejson, 11 Wis. 470, 1860; S. C, 8 Am. Law Reg. 692; State 
 B. Madison, 7 Wis. 688 ; Clark v. Janesville, 10 Wis. 136. 
 
Ch. Vr.] MUNICIPAL CHARTERS. 201 
 
 restriction, the power to borrow money would pass as an 
 incident to these general powers, according to the well- 
 settled rule that corporations may resort to the usual and 
 convenient means of executing the powers granted ; for 
 certainly no means is more usual for the execution of such 
 objects than that of borrowing money." In this case, as in 
 the other, the question was not raised until the money had 
 been borrowed and the right of third persons had attached." 
 
 ' City V. Lamson, 9 Wall. 477, 486, 1869, where the Wisconsin cases are 
 referred to by Jfelson, J. Ante, sec. 37, and notes. The right of privatf 
 corporations generally to horrov) money, as incidental to the express powers 
 granted, is extensively considered upon principle and authority in the im- 
 poitant case of Curtis «. Leavitt, 15 N. Y. 9, 1857. See, also, Barry v. 
 March. Ex. Co., 1 Sandf. Ch. 380; Beers i>. Phoenix Glass Co., 14 Barb. 
 358 ; Stratton v. Allen, 16 N. J. Eq. 339 ; Lucas v. Pitney (power of rail- 
 road company), 3 Dutch. (N. J.) 331 ; Fay v. Noble (manufacturing cor- 
 poration), 13 Cush. 1 ; Davis v. Prop. &c. of Meeting House (religious cor- 
 poration), 8 Met. 331. Perhaps it is difficult to draw a distinction between 
 private and municipal corporations in respect to the implied right to boj;- 
 row money. But we see much more reason for affirming the existence of 
 an incidental power of this kind with respect to trading, banking, manu- 
 facturing, and railroad corporations than in relation to municipal corpora- 
 tions. There is a difference between contracting a debt in the prosecution 
 of a legitimate corporate purpose and borrowing money for that purpose. 
 In the one case, the application of the credit is secured to the advancement 
 of the authorized object, while money borrowed is liable to be lost, or to be 
 diverted to illegitimate purposes. It should be remembered, that the 
 express powers can be executed without holding that there is an implied 
 power to borrow money. The revenue provisions of charters supply it with 
 the means designed to furnish it with money. And powers are not held to 
 exist merely because they are convenient. As applicable to municipal cor- 
 porations, there is great and almost convincing force in the argument of 
 Selden, J., in Curtis ®. Leavitt, siipra, pp. 367, 368. And see Ketchum v. 
 City of Buffalo, 14 N. T. 356, 365, 1856, where the subject is considered by 
 the same judge, and the power of a municipal corporation to contract debts 
 on credit, for legitimate purposes, is admitted to be a question which has 
 " yet to be judicially settled." See, on the general subject, Canal Bank v. 
 Supervisors, 5 Denio, 517, 1848; Barker v. Loomis, 6 Hill, 468, 1844; Peo- 
 ple V. Brennan, 39 Barb. 533, 1863. In Commonwealth «. Pittsburgh, 41 
 Pa. St. 378, Strong, J., says, that the power to execute and issue bonds is 
 inseparable from the existence of all corporations, public and private. 
 Douglass V. Virginia City, 5 Nevada, 147, 1869. In New York, see Stat. 
 1853, 1135, chap. 603. In Mississippi, Boards of Police of counties have no 
 implied power to borrow money ; and when special power to borrow money 
 "is conferred, it must be fairly pursued ; and it was held that where a war- 
 rant properly signed did not (as required by the statat'l^ state on its face 
 
209 MUNICIPAL CORPORATIONS. [Ch. VL 
 
 § 83. Express power to a municipal corporation "to 
 borrow money " includes the power to issue its negotiable 
 bonds, or other usual securities, to the lender.' But it does 
 not include the power to issue notes to circulate as money, 
 in violation of the statute law and public policy of the 
 state.' 
 
 § 84. A contract whereby a city agrees with an indi- 
 vidual that if the latter will pay or advance the amount of 
 interest due and to become due on certain bonds of the city 
 already issued, the city will pay or refund the amount, is 
 not a "borrowing of money" within the terms or spirit of 
 the charter prohibiting the municipal authorities from bor- 
 rowing money unless authorized by a prior vote of the 
 citizens ; such a contract being one simply for the payment 
 of a debt.' Under authority to a city to borrow money, it 
 
 th'e object for which it was issued, nor upon what fund drawn, it could not 
 be enforced. Beamair v. Board ol Police, 42 Miss. 338; 15 Wall. 566. There 
 may be ground for a distinction, as to the implied power to borrow money, 
 between counties and ordinary city corporations. 
 
 Beceni MigUsh Decisions. — Bond for borrowed money, given after the 
 Municipal Corporations Act, held valid : Pallister v. Mayor, &c., 9 C. B. 
 744 ; Payne v. Mayor, &c., 3 Hurl. & Nor. 573. See Now ell «. Mayor, &c., 9 
 Exch. 457 ; Kendall v. King, 17 C. B. 483. Note for borrowed money held 
 invalid under the act : Attorney General ». Lichfield, 18 Sim. 547 ; Reg. v. 
 Lichfield; 4 Queen's B. 893. See Bateman v. Mid-Wales R. W. Co., L. R. 
 1 C. P. 510. 
 
 ' Commonwealth v. Pittsburg, 34 Pa. St. 496, 511. 1859 ; Railroad Co. 
 V. Evansville, 15 Ind. 395,413, 1860; Middleton ». Allegheny Co., 37 Pa, 
 St. 341; Reinboth v. Pittsburg, 41 Pa. St. 378; Seybert e. Pittsburg, 1 
 Wall. 373; Rogers v. Burlington, 3 Wall. 654, 666, per OUfford, 3. ; De Voss 
 c. Richmond, 18 Gratt. (Va.) 338; S. C, 7 Am. Law Reg. (N. S.) 589; 
 Galena v. Corwith, 48 111. 433, 1 868. Money borrowed, and note given by 
 officers of a town, without authority, does not bind the town in case it 
 never receives the benefit of it. Benoit v. Conway, 10 Allen, 538 ; People 
 0. Supervisors, 34 N. Y. 516 ; Police Jury v. Britton, 15 Wall. 566. 
 
 » Thomas «. Richinond, U. S. Supremo Com-t, December, 1871, 13 Wall. 
 349. ^ V" 
 
 Construction of the constitutional power of the general government to 
 "iorrow money." See Hepburn v. Griswold, 8 Wall. 603, and Knox v. Lee, 
 December term, 1871, known as the "legal tender cases." 
 
 » Gelpcke v. Dubuque, 1 Wall. (U. S.) 331, 1863, Miller, J., dissenting. 
 Where a city can make such a contract, with the sanction of a prior vote, 
 
Ch. VI.] MTmiCIPAL CHARTERS. 203 
 
 may, if there be no statutory restriction, make the principal 
 and interest payable at the place where the money is bor- 
 rowed, or where it pleases, though beyond the limits of the 
 state.' Among the powers of a strictly municipal nature 
 conferred upon a city was the power ' ' to borrow money for 
 any object, in its discretion," or "for any public purpose," 
 on a two-thirds vote of the citizens, and this was held, in 
 connection with a general statute of the state recognizing, 
 by implication (as construed), the validity of city and 
 county bonds generally, to authorize such city to issue 
 bonds to aid in the construction of a railway or plank road 
 leading to, through, or from the city." 
 
 Limitation on Power to Become Indebted. 
 
 % 85. Provisions are frequently made in constitutions, 
 or in charters or incorporating acts, to prevent the creation 
 
 the sanction will, in an action on such a contract, be presomed until the 
 contrary is shown by the city. lb. per Swayrie, J. 
 
 ' Meyer v. Muscatine, 1 Wall. (TJ. S.) 384, 1863. In this case, the 
 court, per Swayne, J., say (1 Wall. 391) : "The power of a municipal cor- 
 poration to make any contract does not depend upon the place of perform- 
 ance, but upon its scope and object. A city authorized to establish gas- 
 works and water-works, and to gravel its streets, may buy water, coal, and 
 gravel beyond its limits, and agree to pay where they are found, or else- 
 where. The principal power, when expressed, draws to it, by necessary 
 implication, the means of its execution. This ia the settled rule in the con- 
 struction of all grants of authority, whether to governments or indi- 
 viduals." Express authority to a city " to borrow money," necessarily im- 
 plies the power to determine the time of payment and to issue bonds, or 
 other evidence of iniebtodness, to borrow within or T^thout the state, and 
 to agree to pay where borrowed. Railroad Company v. Evansville, 15 Ind. 
 395, 413, 1860, distinguished as to place of payment from Prettyman v. 
 Tazwell Co., 19 111. 406, 33 Tb. 147, which were regarded as turning, upon 
 peculiar statutory provisions. See, further, chapter on Contracts, poit. 
 
 " Meyer v. Muscatine, 1 Wall. (IT. S.) 384, 1863, Miller, J., dissenting, in 
 an opinion of marked ability; Mitchell v. Burlington, 4 Wall. 370, 1866; 
 Rogers v. Burlington, 3 Wall. 654, 1865. General power granted to a city 
 to create a debt will be construed to mean debts for specified, legitimate, 
 and proper muniaipal purposes, and not for any or all purposes, at the dis- 
 cretion of the city council or inhabitants. Lafayette v. Cox, 5 Ind. 
 (Porter) 38, 1854. Limitation on taxing power does not limit power 
 to contract debts. Emerson v. Blairsville, 3 Pittsb. (Pa.) Rep. 39. Post, 
 sec. 107. See, further, chapter on Contracts, post. 
 
204 MUOTCIPAL CORPORATIONS. [Ch. VI, 
 
 or increase of municipal indebtedness beyond certain limits, 
 or except upon certain conditions. The judicial construc- 
 tion of some of these provisions will be noticed in this 
 place. The constitution of Maryland contains a provision 
 that "JS^o debt shall be created by the mayor and city 
 council of Baltimore" (except for specified temporary pur- 
 poses), unless it shall be first sanctioned by the legislature 
 and approved by the voters of the city. The city being 
 the owner of a large amount of ^tock in the Baltimore 
 and Ohio Railroad Company, without previous legis- 
 lative authority or the approval of the voters, passed an 
 ordinance to provide for the raising of one million of dol- 
 lars, by hypothecating its railroad stock, and for the in- 
 vestment of the same in the bonds of another railroad com- 
 pany in process of construction. The validity of this or- 
 dinance being drawn in question, the court considered it to 
 be plain, that the constitutional provision quoted was in- 
 tended to prohibit the city from aiding in the construction 
 of works of internal improvement without the previous as- 
 sent of the legislature and of a majority of the voters of 
 the city ; and that the ordinance (notwithstanding the in- 
 genious use of the phrase raising instead of borrowing 
 money, and the further provision that the parties furnishing 
 the money should look for its repayment exclusively to -the 
 stock pledged, and that the city should not be responsible 
 for any deficit) did create a debt within the meaning of the 
 constitution, and was therefore void.' 
 
 § 86. Ulider a charter prohibiting the common council 
 of a city from " authorizing any expenditifre, for any pur- 
 pose," in the current political year, exceeding the amount 
 of the annual tax levy, the council cannot authorize any 
 expenditure to be made within the year exceeding the 
 limit ; but they are not forbidden to authorize, in that year, 
 an expenditure to be made in a subsequent year, for ser- 
 vices to be performed in such subsequent year," 
 
 ' Baltimore «. Gill, 31 Md. 375, 1869. That a debt may be ereated by 
 borrowing money, although there be a provision exempting the borrower ' 
 from liability beyond the property pledged, see Newell v. People, 3 Seld, 
 9,87. 
 
 » Weston «. Syracuse, 17 N. T. 110, 1858. See, also, Cook«. Cityof Buf 
 
Ch. YI.T MUNICIPAL CHAKTEES. 205 
 
 § 87. A mxinicipal charter provided that it should not 
 be lawful for the city council to make, or authorize to be 
 made, " any contract for the payment of money heyond the 
 current fiscal year,''^ declaring every such prohibited con- 
 tract "illegal and void." In construing this language the 
 court say : "By this section of the charter, the legislature 
 have, in » the most explicit manner, prohibited the city 
 council from contracting any debt beyond the fiscal year. 
 If the city council had, at the time the contract was made, 
 in 1845, passed an ordinance that the expense of lighting 
 the streets of the city for that year should be paid in 1848, 
 by a tax then assessed for that purpose, it would have come 
 within the letter of the prohibition. It is none the less a 
 violation of its spirit, that the council did not pass the 
 ordinance providing for its payment until 1848." ' 
 
 § 88. If a municipal corporation has the means in itg 
 treasury to meet its indebtedness, the issue of warrants to an 
 amount larger than five per cent, of its taxable property ia 
 not a violation of th^ section of the state constitution which 
 provides that ' ' no municipal corporation shall be allowed 
 to become indebted, in any manner or for any purpose, to 
 an amount exceeding five per cent, of the taxable property 
 within the corporation." In such case it would not be- 
 come indebted within the meaning of the constitutional 
 clause.' An act of the legislature pi'ohibiting counties and 
 
 falo, 1 Clinton's N. T. Digest, " Buffalo," sect. 3. Limitation on rate of tax 
 to be annually levied construed. State v. Mayor, 23 La. An. 358. The 
 charter of a city provided that '■^ no funded, debt shall be contracted." It 
 was decided, that a city bond, issued on time, for the purchase of market 
 grounds, was not a funded debt. Ketchum v. Buffalo, 14 N. Y. 856. 
 Meaning of ''funded debt" and "funding" considered by Selden, J., ij. p. 
 367, and by Wriffht, J., p. 378. City majfundyalid debt and issue its bonds 
 therefor, without express authority. Galena «. Corwith, 48 111. 433, 1868. 
 How fund, Smith e. Morse, 2 Cal. 524. Ante, sees. 41, 36 ; 15 Wall. 366. 
 
 ' Per Caldwell, J., Jonas o. Cincinnati, 18 Ohio, 318, 322, 1849. Con- 
 struction of similar provision in other charters: Goodrich «. Detroit, 13 
 Mich. 279 ; Philadelphia «. Flanigen, 47 Pa. St. 21 ; Johnson o. Philadelphia, 
 lb. 383 ; "Wallace «. San Jose, 29 Cal. 180 ; Bladen «. Philadelphia, 60 Pa. 
 St. 464,. construing an act applying to the city to the effect that no debt 
 Bhall be binding unless authorized by law or ordinance, and a sufficient ap- 
 propriation therefor be made. 
 
 ' Dively v. Cedar Palls, 37 Iowa, 337, 1869. A contract by the corpo- 
 
206 MUNICIPAL 00RP0BA.TI0N8. [Ch. VI. 
 
 cities from thereafter " contracting any debt or pecuniary 
 liability, without fully providing, in the ordinance creating 
 the debt, the means of paying the principal and interest of 
 
 ration to pay for work when it shall be performed, in the future, does not 
 constitute an indebtedifess, within the meaning of this provision of the 
 constitution, until the performance of the work. lb. But quaere. See 
 Davenport, &c. Gas Co. v. Davenport, 13 Iowa, 329. A similar provision 
 exists in the constitution of Illinois and of some other states. The mean- 
 ing and effect of the Iowa constitution, qu<^ed above, were much discussed 
 before the Supreme Court of Iowa, in a very recent case, in which the 
 question was, Is a city corporation liable to a tona fide holder, upon its 
 negotiable bonds issued for value, when at the time of such issue the city 
 was indebted to the full extent of the constitutional limit ? The cause was 
 settled before being decided, and no opinions were filed ; but the judges 
 differed in their judgment. In the Western Jurist (vol. VI. p. 1, January, 
 1873), will be found two able and interesting articles upon the question 
 above stated, containing the arguments upon .both sides of it — the one 
 being prepared, as it is understood, by Mr. Justice Beck, and the other by Mr. 
 Justice Oole, of the Supreme Court of Iowa. The proposition upon which 
 they differ is whether the.yower given to a city to issue its bonds, absolutely 
 ceases as to innocent holders, the moment the consitutional limit is reached, 
 the same as if it had never been conferred. In fiew of the language shall 
 not " be allowed ;" the course of decision in the United States Supreme Court, 
 •elsewhere noticed, protecting the holders of this class of securities; and the 
 impractibility, and even impossibility, of purchasers ever to ascertain, at a 
 given moment, the amount of indebtedness of a corporation, the author, 
 while appreciating the difficulties of the question, is inclined to think that 
 if the power to issue negotiable securities be given, and the inhabitants 
 stand by and allow such bonds to be issued, for value received by the cor- 
 poration, and sold, that it should be held liable thereon. If the bonds are 
 void, and the city has received value, it would be liable to pay back what 
 it had received from innocent persons, or else the provision of the constitu- 
 tion would operate to ensnare and defraud those who deal with it; and, 
 if thus liable, the constitutional limit may be exceeded in this way, as well 
 as by sustaining the right to recover on the bonds. 
 
 The provision of the Iowa constitution, above quoted, was further ex- 
 pounded in the late case of Grant <o. Davenport, April term, 1873, not yet 
 reported, which involved the validity of a contract by the city to supply 
 itself with water; and it was held that where a contract made by a muni- 
 cipal corporation pertains to its ordinary expenses, and is, together with 
 other like expenses, within the limit of its current revenues and such special 
 taxes as it may legally, and in good faith intends to levy therefor,»8uch 
 contract does not constitute "the incurring of indebtedness " virithin the 
 meaning of the constitutional provision limiting the power of municipal 
 corporations to contract debts. 
 
 The charter of the City of Portland, Oregon, prohibited the city from 
 contracting an indebtedness exceeding $50,000; and it was held by Judge 
 
Ch. VI.] MUNICIPAL CHARTERS, 207 
 
 the debt so contracted," does not extend to ordinary street 
 work, wMcli forms part of the current expenses of the 
 corporation, and which may be paid out of its currenl 
 revenues.' 
 
 § 89. A restrictive provision in a city charter, that the 
 " council shall not create, or permit to accrue, any debts or 
 liabilities which shall exceed" a specified sum, unless a 
 certain course be pursued by the council and approved by 
 a vote of the people, has been considered to have no relation 
 to liabilities arising ex delicto, or to those which the law 
 may cast upon the corporation, and to apply, at most, only 
 to contracts or liabilities voluntarily created. The court, 
 indeed, regarded the provision as directory simply, and not 
 as limitation on the power of the councU to create debts.' 
 
 But in another case a provision in a city charter that the 
 council shall not have power to pledge the credit of the city 
 for more than a specified sum without submitting the ques- 
 tion to the voters of the city was regarded as a definite re- 
 striction on the power ; and hence a statute authorizing the 
 city to issue bonds to defray the expenses of buUding a 
 bridge is subordinate to, and does not override, the restric- 
 tion in the charter.' 
 
 § 90. Constitutional limitations on state indebtedness 
 apply to the state alone, and not to her political and muni- 
 cipal subdivisions.* A legislative provision prohibiting the 
 
 DeadLy Vaa-t an ordinance assuming a liability of $350,000, to be paiid in 
 semi-annual instalments extending through twenty years was in violation of 
 the charter, and this although the ordinance made provisions for the pay- 
 ment of such instalments as they fell due by the levy of taxes for that pur- 
 pose. Coulson ®. Portland, Deady, 481, 1868. 
 
 As to constitutional provision requiring the legislature to reibrvA the 
 power of municipalities to levy taxes, borrow money, &c. see, am,U, chap, 
 m. sec. 37. 
 
 ' Reynolds s. Shreveport, 13 La. An. 326, 1858. 
 
 « McCracken «. San Francisco, 16 Cal. 591, 1860. 
 
 ' Cumberland v. Magruder, 34 Md. 381, 1871. But see Butz ». Musca- 
 tive, 8 Wall. 575, 1869. Post, sec. 107. 
 
 < Pattison «. Supervisors, 13 Cal. 175, 1860 ; Cass ». Dillon, 8 Ohio St. 
 607, 1853; Slack*. Railroad Company, 13 B. Mon. 16; Clark «. Janesville, 
 10 Wis. 136; Prettyman n. Supervisors, 19 111. 406. See People ®. Super- 
 
208 MUNICIPAL CORPORATIONS. [Ch. VL 
 
 city autTiorities from incurring an indebtedness beyond a 
 designated amount, does not apply to the legislature of the 
 state ; and the latter may, of course, by a subsequent act, 
 authorize an increase of the amount.' 
 
 Rewards for Offenders. 
 
 § 91. The governing body of a municipal corporation 
 (which has power to protect the ;^operty and promote the 
 welfare of its inhabitants), may oflfer a reward for the de- 
 tection of oflfenders against the general safety of its people, 
 as, for example, those guilty of the crime of arson within 
 the corporate limits." If made by the mayor, it may be 
 ratified by the city council subsequently, and is binding 
 upon the city, though, not so ratified until after the per- 
 formance of the service for which the reward is claimed.' 
 A promise to reward an officer for doing that wMch, with- 
 out such reward, it was his duty to do, is void. Such a 
 promise is, on general principles, without consideration, 
 
 visors, 16 Mich. 354, and Mri Justice Loweh individual opinion — ^not the 
 court's — in State v. County of Wapello, 13 Iowa, 388, 418-433; Dubuque 
 County V. Railroad Company, 4 G-. Greene, 1 ; Dean «. Madison, 7 Wis. 
 688. 
 
 ' Amey v. Allegheny City, 34 How. (U. S.) 364, 1860. Construction of 
 particular limitation : 11. See, on the general subject, Wallace ®. Mayor, 
 39 Cal. 180 ; Wyncoop «. Society, 10 Iowa, 185 ; Rice v. Keokuk, 15 Iowa, 
 579 ; Gibbon v. Railroad Company, 36 Ala. 410 ; Toote v. Salem, 14 Allen, 
 487; Dunnovai). Green, 57111, 30. 
 
 » York B. Pprscht, 23 Pa. St. 391, 1854 ; Crawshaw v. Roxbury, 7 Gray, 
 374, 1856. Such an oflfer is not void for ambiguity, and entitles a person 
 to the reward who gives information to the police officers of the city upon 
 which the incendiary is arrested, he being afterwards convicted. The 
 power of towns in Maine to oflfer rewards denied ; Gale v. South Berwick, 
 51 Maine, 174. See Lee «. Pleminsburg, 7 Dana, 59. 
 
 ' Crawshaw ». Roxbury, mpra. Under a statute authorizing the mayor 
 and city council of any city, or the selectmen of any town, to oflfer and pay 
 from the treasury of such city or town a suitable reward, not exc(*eding 
 $300, for apprehending and securing a person charged with a capital or 
 other high crime, any city or town may be bound by an offer of a reward in 
 such cases; and city person who performs the service, relying upon such 
 offer, may, in action of aammpsit, recover the amount oflfered of such city or 
 town. Janvrin v. Exeter, 48 N. H. Requisites of declaration where reward 
 is oflfered by a town, see Codding v, Mansfield, 7 Gray, 378. 
 
Oh. VI.] MUNICIPAL CHARTERS. 209 
 
 if, indeed, it be not illegal.' Therefore, a watchman of a 
 city, who, while in the discharge of his duty as such, dis- 
 covers a person in the act of committing a crime, cannot re- 
 cover from the city a reward oflEered by it." 
 
 Puhlio Buildings. 
 
 % 92. Power to the officers or to one of the departments 
 of a municipal corporation, to provide for repairs to pub- 
 lic buildings, does hot give authority to erect a new build- 
 ing, and certainly not a large and expensive edifice.' But 
 power to a municipal corporation to rebuild or repair car- 
 ries with it the right to determine plan and mode.* 
 
 Police Powers and Regulations. 
 
 % 93. Many of the powers most generally exercised by 
 municipalities are derived from what is known as 'Cob police 
 power of the state, and are delegated to them to be exer- 
 cised for the public good. Of this nature is the authority 
 to suppress nuisances, preserve health, prevent fires, to 
 regulate the use and storing of dangerous articles, to estab- 
 lish and control markets, and the like. These and other 
 
 ' Stotesbury®. Smith, 3 Burr. 934; 3 Kent Com. 185; Harris t. Wat- 
 son, Peake, 73 ; Stilk v. Myrick, 3 Campb. 317 ; Bridge v. Cage, Cro. Jac. 
 103. See chapter on Corporate Officers, ipoit, sees. 173, 173. 
 
 Pool®. Bo ston, 5 Gush. 219, 1849; Gilmore ®. Lewis, 13 Ohio, 381; 
 Means «. Hendershott, 34 Iowa, 78; Chap. IX. fost. 
 
 ' Peterson ®. Mayor, &c., 17 N. Y. 449, 455, per Derm, J. Contract be- 
 tween city and county in respect to public buildings : Bergen v. Olarkson, 
 1 Halst. (N. J.) 353, 1796; De Witt v. San Francisco, 2 Cal. 289, 1853. 
 
 ■* Ely V. Rochester, 26 Barb. 133, 1837. As to power to build town house. 
 French v. Quincy, 3 Allen, 9. Incidental power to provide suitable accom- 
 modations for the transaction of the business of the corporation. People v. 
 Harris, 4 Cal. 9 ; see Vanover v. Davis, 37 Geo. 354 ; chapter on Corporate 
 Property, post. Council have power to fit up and furnish the room in 
 which they meet, and the court refused to enjoin them from furnishing the- 
 council chamber with portraits of the governors of the state. Reynolds v. 
 Mayor of Albany, 8 Barb. 597; People v. Harris, 4 Cal. 9; but see Hodges. 
 ■0. Buffalo, 3 Denio, 110; Stetson v. Kempton, 13 Mass. 373, 1816, per 
 Parker, 0. J. Proper uses of public buildings: Scofleld t. School District,, 
 37 Conn. 499 ; French v. Quincy, 3 Allen, 9. Ma/rhet Houses, post, sees. 
 813-318, 433, 510. 
 14 ' 
 
210 JIUNICIPAL CORPOEATIONS. [Ch. VI. 
 
 Ksimilar topics will be considered in appropriate places. 
 But it may here be observed, tliat every citizen holds his 
 property subject to the proper exercise of this power, either 
 by the state legislature directly, or by public corporations 
 to which the legislature may delegate it. Laws and ordi- 
 nances relating to the comfort, health, convenience, good 
 order, and general welfare of the inhabitants, are compre- 
 hensively styled, " Police Laws or Regulations." And it 
 is well settled that laws and regulations of this character, 
 though they may disturb the enjoyment of individual rights, 
 are not unconstitutional, though no provision is made for 
 compensation for such disturbances. They do not appro- 
 priate private property for public use, but simply regulate 
 its use and enjoyment by the owner. If he suffers injury, 
 it is either damnum absque injuria, or, in the the theory 
 of the law, he is compensated for it by sharing in the gen- 
 eral benefits which the regulations are intended and calcu- 
 lated to secure. The citizen owns his property absolutely, 
 it is true ; it cannot be taken from him for any private use 
 whatever, without his consent, nor for any public use with- 
 out compensation ; still he owns it subject to this restric- 
 tion, namely : that it must be so used as not to injure others, 
 and that the sovereign authority may, by police regulations, 
 so direct the use of it that it shall not prove pernicious to 
 his neighbors or the citizens generally. These regulations 
 rest upon the maxim, salus populi suprema est lex. This 
 power, to restrain a private injurious use of property, is 
 very different from the right of eminent domain. It is not 
 a taking of private property for public use, but a salutary 
 restraint on a noxious use by the owner, contrary to the 
 maxim, sic utere tuo ut alienum, non ladas.^ 
 
 ' Baker v. Boston, 13 Pick. 184, 1831 (as to nuisances) ; Wadleigh ». 
 Gillman, 13 Maine, 403 (as to ■wooden buildings) ; Vanderbilt s. Adams, 7 
 Cowen, 349 (as to harbor regulations, where the general principle upon 
 which police laws rest, is very satisfactorily discussed by WoodMorth^ J.) ; 
 Commonwealth v. Alger, 7 Cush. 53, 84 (valuable opinion by Shwa, C. J.) ; 
 Coates «. Mayor, &c. of New York, 7 Cowen, 585 (as to ordinance prohibit- 
 ing the interment of the dead within the city) ; Goszler «. Georgetown, 6 
 Wheat. 181 (as to power to grade). Speaking of turnpike acts, paving acts, 
 &c., Lord Kenyon, in the case of the Governor, &c. t. Meredith, 4 Term 
 Rep. 790, 796, says: " Some individuals suflfer an inconvenience under all 
 these acts of paxliament; but the interests of individuals must give way to 
 
Ch. VI.] MUNICIPAL CHARTERS. 211 
 
 Prevention of Fires. 
 
 % 94. The prevention of damage by fire is usually an 
 object within the scope of municipal authority, either by 
 express grant or by the power, in a chartered town or city, 
 to make_^police regulations or needful by-laws. And where 
 such is the case, the town or municipal body is authorized 
 to appropriate money for the purchase of engines, or for 
 the repair thereof, if used for the purpose of extinguishing 
 fires therein ; and this, whether they belong to the corpora- 
 tion or were purchased by private subscription.' And 
 money may also be appropriated for the benefit of engine 
 and hook and ladder companies therein." 
 
 Quarantine and Health. 
 
 § 95. The preservation of the public health and safety is 
 often made a matter of municipal duty, and it is competent 
 
 the accommodation of the public." And per Bull&r, J., in same case: 
 " There are many cases in -which individuals sustain an injury, for which 
 the law gives no action ; for instance, pulling down houses, or raising bul- 
 warks, for the preservation and defence of the kingdom against the king's 
 enemies." But " the law will not allow the right of property to be invaded, 
 under the guise of a police regulation for the preservation of health, when 
 it is manifest that such is not the object and purpose of the regulation." 
 Per Wilde, J., in Austin v. Murray, 16 Pick. 136; Greene v. Savannah, 6 
 Geo. 1, 1849; Peoples. Hawley, 3 Mich. 330; Ames «. County, 11 Mich. 
 139. The extent of the police power will be further discussed in the chap- 
 ter on Ordinances, post. See, also, Cooley Const. Lim. 572-594. How far 
 and when, cities, in executing police duties, are agents of the state, and not 
 of the municipality. See Buttrick v. Lowell, 1 Allen, 173; Mitchell «. 
 Rockland, 51 Maine, 118, 133; State ex rel. &c. v. St. Louis Court, 84 Mo. 
 356 ; "White «. Kent, 11 Ohio St. 550 ; Thomas v. Ashland, 13 li. 137 ; City 
 CouncU V. Payne, 3 Nott & McCord (South Car.), 475 ; People v. Hurlburt, 
 24 Mch. 44, 1871. AnU, sec. 34. Post, sees. 191, 336, 329, 609. 
 
 ' Allen B. Taunton, 19 Pick. 485, 1837 ; Huneman «. Fire District, 37 
 Vt. 40 ; Robinson v. St. Louis, 38 Mo. 488 (repair of engine house) ; Wad- 
 leigh ■». Gillman, 13 Maine, 403; Vanderbilt v. Adams, 7 Cowen, 349, 353; 
 post, sees. 338, 443 n., 545, 756-759, 774. 
 
 ' Van Sicklen v. Burlington, 37 Vt. (1 Wms.) 70, 1854. Approving, Allen 
 e. Taunton, mpra. See post, chapter on Ordinances. Powet of council 
 over fire companies, and to appoint officers therefor. See Miller v. Savan- 
 nah Fire Co., 26 Geo. 678. 
 
213 MUNICIPAL CORPORATIONS. [Ch. VI. 
 
 for the legislature to delegate to municipalities the power to 
 regulate, restrain, and even suppress, particular branches of 
 business, if deemed necessary, for the public good.' The 
 subject will be considered more in detail in the chapter on 
 Ordinances. The general nature and scope of the authority 
 as it is not unfrequently bestowed, are well illustrated by a 
 case in Maryland. By its charter the city of Baltimore was 
 vested with "full power and authority to enact all ordi- 
 nances necessary to preserve the health of the city, prevent 
 and remove nuisances, and to prevent the introduction of 
 contagious diseases within the city and within three miles 
 of the same." Commenting on this provision of the char- 
 ter, the Court of Appeals say : " The transfer of this salu- 
 tary and essential power is given in terms as explicit and 
 comprehensive as could have been used for such a purpose. 
 To accomplish, within the specified territorial limits, the 
 objects enumerated, the corporate authorities were clothed 
 with all the legislative powers which the general assembly 
 could have exercised. Of the degree of necessity for such 
 municipal legislation, the Mayor and City Council of Bal- 
 tiTTborewexe the exclusive judges. To their sound discretion 
 is committed the selection of the means and manner (con- 
 tributory to the end) of exercising the powers which they 
 might deem requisite to the accomplishment of the objects 
 of which they were made the guardians. ' To prevent the 
 introduction of contagious diseases within the city, and 
 within three miles of the same,' they might impose heavy 
 penalties on the captain, owner, or consignee of any ship or 
 other vessel entering the port of Baltimore, on board of 
 which small pox or other contagious diseases might prevail, 
 or they might seek the accomplishment of their object by 
 causing the vessel and all persons to be taken possession of 
 and controlled until their purification and disinfection were 
 efi'ected, and impose on the captain, owner, or consignee, 
 the payment or reimbursement of all the expenses incurred 
 by such proceedings ; or they might adopt, at the same 
 time, both suggested remedies, if for the successful and 
 
 ' Shrader, Ex parte, 33 Cal. 379, 1867; Asbrook v. Commonwealth,! 
 Buah (Ky.) 139, 1866; Tucker «. Virginia City, 4 Nev. 30. Post, sees. 303, 
 805, 306, 775. 
 
Ch, yr.] MUNICIPAL charters. 213 
 
 faithful execution of their powers they deemed it necessary 
 to do so.'" 
 
 § 96. And it was held, that, under this authority, it was 
 competent for the city to pass an ordinance providing 
 for the appointment of a "health officer," prescribing his 
 duties and powers ; and that the city might recover from the 
 consignee of a vessel, and was not confined to the charterer, 
 the expenses incurred by it in disinfecting and purifying the 
 vessel, persons, and baggage on board of her at the time of 
 her arrival, from the infection of the small pox. Eespecting 
 the extent of liability, the court decided, that the defendant 
 was not entitled to an instruction that the recovery must be 
 limited to the amount of expenses absolutely necessary to 
 preserve the health of the city, or to prevent the introduc- 
 tion of the small pox. On this point the court expressed its 
 judgment to be that, "if the health officer" (on whom the 
 duty of disinfecting the vessel was imposed by ordinance), 
 in causing expenses, "acted bona fide, within the limits of 
 a sound discretion, and with reasonable skill and judgment, 
 in the discharge of his official duties, the reasonable ex- 
 penses thus incurred must be paid." Concerning the power 
 of the corporation over the persons on board of an infected 
 vessel, the court was of opinion, that it was competent for 
 the health officer to be authorized, by ordinance, to send 
 persons laboring under infectious disease to the hospital, 
 and also those on board of the vessel liable to be affected by 
 the disease, if, in his opinion, such a course be necessary to 
 prevent the spread of disease ; and the owner, master, or 
 consignee may be liable for expenses thus incurred, if the 
 health officer acts with reasonable skill and judgment, and 
 exercises a sound and honest discretion." 
 
 § 97. A city having power to pass ordinances respect- 
 ing the poUce.of the place, and to preserve Tiealih, is author- 
 ized, as a sanitary and police regulation, to contract to pro- 
 cure a sv/pTply of water, by boring an artesian well, or 
 otherwise, on the public square, and is the judge of the 
 mode best adapted to accomplish the object.' ! 
 
 ' Harrison s. Baltimore, 1 Gill (Md.) 264, 1843. Ante, sec. 58. 
 
 » Harrison ». Baltimore, 1 Gill (Md.) 364, 1843. 
 
 • Livingston b. Pippin, 31 Ala. 543, 1858. As to water-works: Rome e. 
 
214 MUNICIPAL CORPORATIONS. [Ch.' VL 
 
 Indemnifying Officers. 
 
 % 98. Where a municipal corporation has no interest in 
 the event of a suit, or in the question involved in the case, 
 and where the judgment therein can in no way affect the 
 corporate rights or corporate property, it cannot assume 
 the defence of the suit, or appropriate its money to pay the 
 judgment therein ; and warrants or orders based upon such 
 a consideration are void.' But a municipal corporation has 
 power to indemnify its oflScers against liability which they 
 may incur in the honaflde discharge of their duties, although 
 the result may show that the officers have exceeded cheir 
 legal authority.' Thus, it may vote to defend suits brought 
 against its officers for acts done in good faith in the exercise 
 of their office.' So, if a public corporation is charged with 
 the duty of repairing highways, and is made liable for de- 
 Cabot, 28 Ga. 50 ; Hale b. Houghton, 8 Mich. 458. A municipal corporation 
 owning lands on a watercourse, distant from the city, to supply its inhab- 
 itants with water, has no right (unless acquired by purchase or by the ex- 
 ercise o( the right of eminent domain) to diyert water to the injury of other 
 riparian proprietors. Stein «. Burden, 34 Ala. 130, 1854 ; Fleming's Appeal, 
 6S Pa. St. 444 ; ante, sec. 13. 
 
 ' Halstead v. Mayor, &c. of N. T., 3 Comst. 430, 1850, aflSrming S. C, 5 
 Barb. 318, and deciding that corporate funds cannot be appropriated to pay 
 penalties personally incurred by officers for refusing to discharge their of- 
 ficial duties; refer to, in explanation, Morris d. The People, 3 Denio, 381. 
 And see, also, People «. Lawrence, 6 Hill, 344, holding that the supervisors 
 of a county had no right to appropriate money to defray the costs of a jus- 
 tice of the peace who had been prosecuted for official misconduct and 
 acquitted; recognized in Bank v. Supervisors, 5 Denio, 517, 521. Same 
 principle, Merrill v. Plainfield, 45 N. H. 136. In Canada it is held that a 
 municipal corporation cannot pass a by-law to pay the costs of a contested 
 election to a municipal office, nor indemnify one of the parties to such a 
 contest. In re BeU, &c., 3 Upper Can. Com. Pleas Rep. 607 ; S. C, 3 Ih. 
 400. 
 
 * Pike v. Middleton (indemnifying tax collector), 13 K H. 378, 1841 ; 
 Fuller «. Groton, 14 Gray, 340 ; Sherman v. Carr (indemnifying executive 
 officer), 8 R. L 431, 1867; Briggs «. Whipple, 6 Vt. 95, 1834; Bancroft v. 
 Lynnfleld, 18 Pick. 566, 1836; Nelson ®. Milford, 7 Pick. 18, 36, 1828; 
 Babbitt v. Savoy, 3 Cush. 530, 1849; Hasdell ®. Hancock, 3 Gray, 536, 
 1853. In Page «. Prankford, 9 Greenl. 155, this was left an open question. 
 
 ' 11. Baker «. Windham, 13 Maine (1 Shep.) 74, 1836. 
 
Ch. VI.] MUNICrPAIi CHARTERS. 215 
 
 fects therein, it has the incidental power to indemnify an 
 officer who digs a ditch for the purpose of raising a legal 
 question as to the bounds of the highway.' 
 
 § 99. So, a vote by a town to refund money paid by 
 assessors on an illegal assessment of a town tax made by 
 them, is an express promise, founded upon a meritorious 
 and legal consideration, and is irrevocably binding upon 
 the town. And this, although, without such vote, the town 
 could not have been compelled to refund or indemnify the 
 assessors. But such a vote, by a town, would be without 
 consideration in respect to state and county iSi.x.QS.'' So, if 
 the town is not concerned, having nothing to lose or gain in 
 the result of the litigation, a vote to indemnify an officer 
 would be in excess of its power, and void ;' but it would be 
 otherwise if the suit against the officer was in respect to 
 matters in which the corporation was interested.* 
 
 Furnishing Entertainments. 
 
 § 100. Without express power, a public corporation 
 cannot make a contract to provide for celebrating the Fourth 
 of July, or to provide an entertainment for its citizens or 
 guests. Such contracts are void, and although the plaintiff 
 complies therewith on his part, he cannot recover of the 
 corporation.' 
 
 ' Bancroft ». Lynnfield, supra. 
 
 ' Nelson v. Milford, 7 Pick. 18, 1838. A separate action, on such a 
 vote, lies against the town in favor of each assessor for his share, which 
 does not include, however, his own tax, paid by him voluntarily. Ih. 
 
 ' Vincent ». Nantucket, 13 Gush. 105, 1853. "A promise to indemnify 
 a tax collector if he would collect, by pretense of his official authority, a 
 tax whiqh he knew was illegal, would be an agreement to violate the law, 
 and could not be enforced." Pike v. Middleton, 13 N. H. 381, per Qilchriit, 
 3. Selectmen, under their authority "to order and manage all of the pru- 
 dential affairs of the town," may bind the town thus to indemnify its 
 officers. 33 N. H. 381, supra; ante, sec. 13, and notes. 
 
 * Briggs V. "Whipple, 6 Vt. 95, 1834. 
 
 ' Hodges ®. Buffalo, 3 Denio (N. T.) 110, 1846. Same principle: Cornell 
 e. Guilford, 1 Denio, 510; Hood v. Lynn, 1 Allen (Mass.) 103, 1861; 
 Gerry v. Stoneman, Ih. 319. Nor to celebrate surrender of Cornwallis: 
 Tash ®. Adams, 10 Cush. 353, 1853. Nor can towns in Massachusetts 'vote 
 money for the purchase of uniforms for an artillery company : Claflin e. 
 
216 MUNICIPAL CORPORATIONS. [Ch. VI. 
 
 Impounding Animals. 
 
 § 101. Power to impound and forfeit domestic aaimals 
 must be expressly granted to the corporation, and laws or 
 ordinances autborizing the officers of the corporation to 
 impound, and, upon taking specified proceedings, to sell 
 the property, are penal in their nature, and where doubtful 
 in their meaning will not be construed to produce a for- 
 feiture of the property, but rather the reverse. And the 
 pound-keeper cannot justify in an action brought against 
 him by the property owner unless he has strictly complied 
 with all the requisites of the law under which he acts. 
 Thus, if he sells without giving the requisite notice, or for 
 the full length of time required, he is liable, although the 
 owner sustains no actual injury from the omission, or the 
 owner may treat the sale as void and recover his property.' 
 
 Hopkinton, 4 Gray, 503, 1855. " Corporations," says Jewett, J., in Hodges 
 t). Buffalo, 3 Denio, 110, have no other powers than such as are expressly 
 granted, or such as are necessary to carry into efEect the powers expressly 
 granted." In New York there is a statutory declaration of this common 
 law principle. 1 Rev. Sts. 599, sees. 1-3. "Until the case of Hodges «. 
 Buffalo, 3 Denio, 110, nothing," says Pratt, J., 3 Comst. 433, "was more 
 frequent than for city authorities to vote largesses and give splendid ban- 
 quets for objects and purposes having no possible connection with the 
 growth or weal of the body politic, thus subjecting their constituents to 
 unnecessary and oppressive taxation." Ante, sec. 55; post, chap. XXH. 
 sec. 733. 
 
 > White v. Tallman, 3 Dutch. (N. J.) 67, 1856; Willis v. Legris, 45 111. 
 389 ; IK 318 ; Rounds v. Stetson, 45 Maine, 596, 1858 ; Gilmore v. Holt, 4 
 Pick. 358, 1836; Rounds v. Mansfield, 38 Maine, 686, 1854; Smith v. Gates, 
 31 Pick. 55, where the rule in the text was applied, although the sale was 
 made only twenty minutes before the expiration of the time required by 
 law. So actual knowledge, by the owner of the beasts, of the impsunding 
 thereof, is not equivalent to the written notice required by the statute. 
 CoflBn V. Field, 7 Cush. 355. Abridgment of the required notice for the 
 shortest period avoids the sale ; and so does a sale, at one bidding, of two 
 animals having different owners. Clark v. Lewis, 35 111. 417, 1864. Pur- 
 chaser must show a regular and authorized sale when his title is questioned 
 by the former owner. lb. Breach of a pound, and liberating an animal 
 therein confined, is no violation of an ordinance prohibiting "any person 
 from opposiDg or interrupting any city officer in the execution of the ordi- 
 nances of the city.'! Mayor, &c. v. Omburg, 33 Geo. 67, 1857. Marshal 
 must strictly comply with the ordinance, or he becomes a trespasser from 
 
Ch. VI.] MUNICIPAL CHAHTBRS. 217 
 
 A statute directing the mayor to issue a warrant annually 
 within ten days from July 1st, commanding , police officers 
 to kill all dogs not licensed according to law, whenever and 
 wherever found," is not in conflict with the constitution of 
 Massachusetts.' 
 
 Party Walls. 
 
 § 102. Power in a charter to pass ordinances "to 
 authorize the erection of party walls and fences, and to 
 regulate them," includes the power to authorize their erec- 
 tion upon the application of either owner, and without the 
 consent of the other ; and such an ordinance is not uncon- 
 
 the beginning: 13 Pick. 384; 4 lb. 358; 31 11. 55; 13 Met. 407; 7 Cush. 
 355; 9 Pick. 14; 13 Met. 118; 33 Pick. 355; 13 Met. 198. Owner cannot 
 legally break pound and rescue animals: 5 Pick. 514; 5 Gush. 367. Pound 
 defined : 3 Cusb. 305. Marshal cannot delegate his authority to others to 
 impound for him generally, and in Ms absence, but may have assistants to 
 act in concert with him : Jackson v. Morris, 1 Denio, 199. Officers must 
 use the public pound: 1 Rhode Island, 319. Replevin does not lie against 
 a pound-keeper, at common law, while the creatures are in his legal 
 custody. Co. Litt. 47 B. ; lb. 145 B.; 1 Chit. PI. 159; Pritchard «. Stevens, 
 6 Bum. & E. 533; Isley v. Stubbs, 5 Mass. 383; Smith v. Huntington,' 3 N. • 
 H. 76 ; but it does lie if he voluntarily parts with his legal control over 
 them, or if he impounds them in any other places than those prescribed by 
 the law, as, for example, in his pasture or bam, although this be done the 
 more conveniently to furnish them with food and drink : Bills v. Kinson, 1 
 Foster (N. H.) 448, 1850. In New Hampshire, if creatures are found 
 " doing damage," they may be impounded and appraisers are to ascertain 
 "whether any damage was done;" held that the statute contemplated 
 actual, 8,ni not merely nominal damages, to justify impounding: Osgood 
 e. Green, 33 N. H. 318, and cases cited. As to power to take up and forfeit 
 animals at large, see also, chapter on Ordinances, post. 
 
 • Blair v. Forehand, 100 Mass. 136. The act of July 3d, 1863, entitled 
 "an act in relation to damages occasioned by dogs," so far as it undertakes 
 to charge the owner with the amount of damage done by his dog, as fixed 
 by the selectmen of the town, without an opportunity to be heard, is un- 
 constitutional; because it is contrary to natural justice and not within the 
 scope of legislative authority conferred by the constitution on the general 
 court, and also because it is in violation of the provision of the bill of rights 
 which secures the right of trial by jury in all controversies concerning prop- 
 erty, except in cases where it had not theretofore been used and practiced : 
 East Kingston v. Towle, 48 N. H. The legislature have power to make 
 towns liable for damage done within their limits by dogs, and to give to-fns 
 a right of action to recover the actual damage from the owners of the 
 dogs, lb. 
 
218 MUNICIPAL COKPORATIONS. [Ch. VL 
 
 stitutional because compensation is not provided for the 
 land occupied by the wall.' 
 
 Public Defense. 
 
 § 103. During the late rebellion, acts were passed by 
 many of the legislatures of the adhering states, in effect 
 authorizing municipalities to raise money, by loans and 
 taxation, to pay bounties to volunte*s, to enable the muni- 
 cipality to fillits quota under the calls of the president for 
 troops, and thereby avoid an anticipated draft. The con- 
 stitutional principles involved ia legislation of this character 
 will be 'found learnedly discussed in the cases below cited, 
 which fully establish the validity of such legislation." But, 
 withont express authority, a municipality possesses no such 
 power ; ' yet, if exercised, it may be validated by subse- 
 quent legislative action.* 
 
 Aid to Railroad Companies. 
 
 § 104. The most noted of extraordinary powers con- 
 ferred upon municipal and public corporations is the 
 authority to aid in the construction of railways by subscrib- 
 ing to their stock, and taxing the inhabitants or the prop- 
 erty within their limits to pay the indebtedness thereby 
 incurred. Legislation of this kind had its origin within a 
 period comparatively recent, and has been more or less re- 
 sorted to, at times, by almost every state in the Union. As 
 
 ' Hunt ». Ambruster, 17 N. J. Eq. 308, 1865. 
 
 ' Speer v. School Directors, 50 Pa. St. 150, two judges dissenting. See 
 Hilbish «. Catherman, 64 Pa. St. 154, 1870, where the prior cases in that 
 state are commented on by Agnew, J. State v. Richland Township, 30 Ohio 
 St. 363 ; Thompson v. Pittson, 59 Maine, 545 ; Broadhead «. Milwaukee, 19 
 Wis. 653 ; Booth v. Woodbury, 33 Conn. 118 ; Shackford ®. Newington, 46 
 N. H. 415; Lowell ». Oliyer, 8 Allen (Mass.) 347; Preeland v. Hastings, 10 
 Allen, 570; Comer ®. Polsom, 13 Minn. 319; Cooley Const. Lim. 319-339; 
 Veazie v. China, 50 Maine, 518. 
 
 ' Stetson «. Kempton, 13 Mass. 373; Piske v. Hazzard, 7 Eh. Is. 438; 
 Shackford v. Newington, supra; ante, sec. 13. 
 
 ' Booth o. Woodbury, 33 Conn. 118; Kunkle ®. Franklin, 13 Minn. 137; 
 Comer «. Folsom, 13 Minn. 319; Hilbish ®. Oatherman, 64 Pa. St. 154, 18'id- 
 State V. Richland Township, 30 Ohio St. 363, 1870 ; anU, sec. 46. 
 
Ch. VI.] MUNICIPAL CHAKTEE8. 219 
 
 it is an author's duty, in a work of this character, to state 
 what the law is, rather than what, in his judgment, it ought 
 to be, he feels constrained to admit that a long and almost 
 unbroken line of judicial decisions in the courts of most of 
 the states has established the principle that, in the absence 
 of special restrictive constitutional provisions, it is compe- 
 tent for the legislature to authorize a municipal or public 
 corporation to aid, in the manner above indicated, the con- 
 struction of railways running near, or to, or through them. 
 The cases on this subject are referred to in the note ; ' but, 
 
 • Goddin v. Crump (act authorizing the city of- Richmond to subscribe 
 stock in a company incorporated to improve the navigation of the James 
 river, and to build a road to the falls of the Eanawha river), 8 Leigh (Va.) 
 120, 1837. This is the earliest case of the class. Bridgeport ». Bailroad 
 Company, 15 Conn. 475, 1843 ; Society, &c. v. New London, 29 Conn. 174 ; 
 Nichol V. Nashville, 9 Humph. (Tenn.) 353, 1848 ; Powers v. Superior Court, 
 23 Geo. 65, 1857; Talbot ®. Dent, 9 B. Mon. (Ky.) 526, 1849; Slack v. Rail- 
 road Company, 13 lb. 1, 1853; Maddox n. Graham, 2 Met. (Ky.) 56; Com- 
 monwealth v. Mo Williams, 11 Pa. St. 61, 1849 ; Sharpless v. Mayor, &c., 31 
 lb. 147; lb. 188; Commonwealth «. Perkins, 43 Pa. St. 410} 47 Tb. 189; 
 Cotton V. County Commissioners, 6 Flor. 610, 1856 ; Railroad Company ». 
 Commissioners, 1 Ohio St. 77, 1853 ; Cass «. Dillon, 3 lb. 607, 1853 ; Ohio 
 0. Commissioners, &e., 6 lb. 280; 7 lb. 827; 8 lb. 394; 12 lb. 596, 624; 14 
 lb. 569 ; Strickland v. Railroad Company, 27 Miss. 209 ; City v. Alexander, 
 33 Mo. 483, 1856; 39 lb. 485; Leavenworth County «. Miller, Supreme 
 Court of Kansas, 1871, 7 Kansas, 479. The opinion of Valentine, J., covers 
 the whole ground of controversy. Kingman, 0. J., concurred, and Brewer, 
 J., dissented. Clarke v. Rochester, 24 Barb. 446, 1857 ; Bank of Rome v, 
 Rome, 18 N. ^. 38, 1858 ; Starin ®. Ge^oa, 33 N. T. 431, 1861 ; People v. 
 Mitchell, 35 N. T. 551, 1866 ; Police Jury v. Succession of McDonough, 8 
 La. An. 341 ; Aurora v. "West, 9 Ind. 74, 1857 ; 33 lb. 88 ; Robinson v. Bid- 
 well, 22 Cal. 379; Stein d. Mayor, &c., 24 Ala. 591, 1854; Gibbons v. Rail- 
 road Company, 36 Ala. 410; Prettyman v. Supervisors, 19 lU. 406, 1858; 
 8. P. 24:1b. 75, 308; Butler v. Dunham, 37 111. 474, 1861; Robertsons. 
 Rockford, 31 111. 451; and see, also, as to authority to precinct to levy tax 
 to maintain a bridge, Shaw «. Dennis, 5 Gilm. (lU.) 405 ; San Antonio «. 
 Jones, 28 Texas, 19; Copes «. Charleston, 10 Rich. (S. C.) 136, 1857; Au- 
 gusta Bank v. Augusta, 49 Maine, 507; Clark «. City, &c., 10 Wis. 136; lb. 
 195, 1859 (compare Whiting d. Sheboygan Railroad Company, infra). The 
 Supreme Court of Wisconsin, in an opinion delivered in Phillips v. Albany, 
 28 Wis. 340, 1871, say, the power of the legislature to authorize municipal 
 subscriptions to the stock of railroads is settled by former decisions in this 
 state, as well as in other states, though the majority of this court would be 
 disposed to deny the power, if it were a new question. S. P. Eogan ». 
 Watertown, 30 Wis. 359, 1873; Lawson ®. Railway Co., 30 Wis. 597. The 
 
^0 MUNICIPAL C0RP0EATI0N8. [Uh. VI. 
 
 notwithstanding the opinion of so many learned and emi- 
 nent judges, there remain serious doubts as to the soundness 
 
 Supreme Court of the United States have decided, that the power may be 
 conferred by the legislature. Infra, sec. 105a. Thompson v. Lee County, 3 
 Wall. 327; Knox County e. Aspinwall, 31 How. (U. S.) 539, 547,1858; 
 Zabriskie v. Railroad Company, 23 Ih. 381 ; Amey t. Mayor, 34 1 h. 365, 
 376 ; Gelpcke v. Dubuque, 1 "Wall. 175, 1863 ; Mercer County v. Hacket, Tb. 
 81; Meyer®. Muscatine, Ih. 384; Caldwell «. Justices, 4 Jones (N. C.) Eq. 
 323; Taylor ®. Newbeme, 3 11. 141, 1854;*S. P. Hill «. Porsytlie Co., 67 
 N. 0. 367, 1870. In Iowa the constitutionality of railroad subscriptions by 
 municipalities was first (1853) affirmed in Dubuque County v. Railroad Com- 
 pany, 4 Gr. Greene, 1 ; afterwards (1863) denied. State ». Wapello County, 
 13 Iowa, 888; .denial adh»red to down to 1869, Hanson c. Vernon, 37 Iowa, 
 26; but note the virtual, yet not acknowledged, overthrow of the line of 
 decisions denying the power, in Stewart ». Polk County, 30 Iowa, 1, 1870. 
 The legislative and judicial history of the subject is fully stated in King v. 
 "Wilson, 1 Dillon's C. C. R. 555, 1871. By the constitution of Tennessee, 
 the legislature has power to authorize counties and incorporated towns to 
 impose taxes for " county and corporation purposes." In Mchol «. Mayor, 
 &c. of Nashville, 9 Humph. 252, 1848, it was held, notwithstanding this 
 provision, that the legislature possessed the power to authorize municipal 
 corporations to subscribe for the stock of railway companies whose roads 
 run to or near such corporations, and that this was a legitimate corpwate 
 purpose. So, in Florida, held to be a "county purpose," within the mean- 
 ing of the constitution ; but qumre? There is nothing in the constitution of 
 Alabama prohibiting the legislature from authorizing a municipal corpora- 
 tion to levy a tax on the real estate within the corporation to aid in the 
 construction of a railroad, even though the road extends beyond the limits 
 of the corporation, or even of the state. So held, in Stein v. Mobile, 24 
 Ala. 691, 1854. An act authorizing a municipal corporation to borrow 
 money to aid in the construction (^ a railroad, upon the written assent of 
 two-thirds of the resident tax-payers, or upon the approval of two-thirds of 
 the tax-paying electors, is constitutional and valid ; and it is not open to 
 the objection that it submits a legislative question to the town. Staiin v. 
 Genoa, 33 N. T. 439, 1861; Gould b. Sterling, J6. 439, 456; Bank of Rome 
 ». Rome, 18 N- V. 38. These cases distinguished on this point from Barto 
 V. Himrod, 4 Sold. 483. Ante, see. 23. 
 
 Since the first edition of this work the Supreme Court of Minnesota has 
 affirmed the validity of compulsory aid to railways, and that it is wholly 
 for the legislature to determine whether the aid shall be by subscribing to 
 the stock and issuing bonds in payment or by a donation of money or bonds 
 to secure their construction, the court in either case regarding the iise to be 
 a puMic use ioT which taxation may be authorized. Davidson v. Ramsey 
 County, 18 Minn. 482, 1872. And the validity of such legislation has also 
 been affirmed by the Supreme Court of Nebraska ; Orounse and Lake, JJ. 
 • concurring, and Mason, C. J., dissenting. The opinion of Orounse, J., re- 
 views the principal cases. Hallenbeck ». Hahn, 3 Neb. 377. 
 
Ch. vi.] municipal chakters. 221 
 
 of the principle, viewed simply as one of constitutional law. 
 Begarded in the light of its effects, however, there is little 
 hesitation in affirming that this invention to aid the enter- 
 prises of private corporations has proved itself baneful in 
 the last degree. 
 
 § 105. It is not proposed here to enter into a discussion 
 of the constitutional principles involved in such legislation. 
 The arguments in favor of the power are fully presented in 
 the leading case of Sharpless v. The Mayor," and against it 
 in Hanson v. Vernon,' in Whiting v. Sheboygan Railway 
 Company,' and in The People v. Township Board of Salem,* 
 
 ' Sharpless v. Mayor, 31 Pa. St. 147. See, also. Am. Law Kev. Oct., 
 1870; ir^ra, sec. 105 a. 
 
 ' Hanson v. Vernon, 37 Iowa, 38, 1869. 
 
 • Whiting V. Sheboygan Railway Co., 9 Am. Law Reg. (N. S.) 156, 1870; 
 8. C, 35 Wis., opinion by Diaxm, 0. J. ; Rogan v. Watertown, 30 Wis. 369, 
 1873. 
 
 ' Reople V. Township Board of Salem, 9 Am. Law Reg. (N. S.) 487, and 
 notes, 1870; S. C, 30 Mich. 453. " Bonds like these are of modern inven- 
 tioa, and when counties and towns were decoyed into the use of them for 
 the purpose of railroad corporations, they had to obtain enabling statutes 
 before they could prostitute municipal seals to any such purpose. And as 
 soon as the people [of Pennsylvania] began to feel the consequences of ap- 
 plying the fundamental principle of commercial paper to their bonds, they 
 altered their organic law so as to render such bonds and enabling statutes 
 irapossibiltties in the future." Per Woodward, C. J., County v. Brinton, 47 
 Pa. St. 367, 1864. The evil of these subscriptions was the cause of the 
 amendment to the constitution. Per Bead, J., Pennsylvania Railroad Co. 
 e. Philadelphia, lb. 193. The amended constitutional provision in Penn- 
 sylvania is as follows: "The legislature shall not authorize any county, city, 
 Dorough, township, or incorporated district, by virtue of a vote of its citi- 
 zens, or otherwise, to become a stockholder in any company, association, or 
 corporation, or obtain money for, or loan its credit to, any corporation, 
 association, institution, or party." Sec. 7, art. XI., Amendment to Consti- 
 tution, 1857. See Pennsylvania Railroad Co. ■». Philadelphia, 47 Pa. St. 
 189, for construction of this amendment. 
 
 The Ohio OonstiPutim (art. VIII. sec. 6) provides that "the General 
 Assembly shall never authorize any county, city, town, or township, by vote of 
 its citizens or otherwise, to become a stockholder in any joint stock company, 
 corporation, or association whatever ; or to raise money or loan its credit to, 
 or in aid of, any such company, corporation, or association ; " and this was 
 held not to prohibit the legislature from authorizing a municipal corpora- 
 tion to engage in building a railroad mainly outside of the state on its own 
 
222 MUNICIPAL CORPOBATIONS. [Ch. VT. 
 
 to whicli, and to the other cases before cited, the reader is 
 referred. The judgments affirming the existence of the 
 power have, generally met with strong judicial dissent and 
 
 account. "Walker e, Cincianati, 21 Ohio 9t. 14, 1871; S. 0., 11 Am. Law 
 Reg. (N. S.) 346, and note of Judge Bedfleld. Considering the evil which 
 this provision of the constitution was aimed at, it seems difficult to avoid 
 the conclusion that this construction thwarts the intention and purpose for 
 which the provision was designed and adopted. 
 
 This case illustrates the dangerous natur» of the invention of brining 
 the taxing power to aid in the building of railway lines, and particularly 
 does it subvert all previous notions of the appropriate powers, functions, 
 and duties of municipalities. Here a single city, in the face of the consti- 
 tution, was authorized to borrow $10,000,000 and issue its bonds in pay- 
 ment, to be appropriated to the construction of a long railroad line by itself 
 and for itself, lying chiefly in other states, and yet the validity of the act 
 giving the authority was sustained. In May of the present year, 1873, the 
 same constitutional provision was before the Supreme Court of the state, 
 and the act of 1878, mentioned below, was held to be in conflict with it, 
 since the legislature could not do indirectly what it was prohibited from 
 doing directly. The court are said, in a case not yet reported, to have 
 held: 
 
 1. Taxation can only be authorized for public purposes. When, there- 
 fore, a statute authorizes a county, township, or municipality to levy taxes 
 not above a given per cent, on the taxable property of the locality for the 
 purpose of building so much of a railroad as can be built for that amount, 
 and the part of a railroad so to be built can be of no public utility unless 
 used to accomplish an unconstitutional purpose, such tax is illegal and can- 
 not be enforced. 
 
 3. Where public credit or money is furnished by any of the subdivisions 
 of the state named in the constitution, to be used in part in the construc- 
 tion of a work which, under the statute authorizing its construction, must 
 be completed, if completed at all, by other parties out of their own means, 
 who are to own, or have the beneficial control and management of the work 
 when completed, public money or credit thus used can only be regarded as 
 furnished for, or in aid of such parties. 
 
 The act of April 23, 1872, to authorize counties, townships, and other 
 municipalities therein named to build railroads, &c. [59 O. L. 84], author- 
 izes the raising of money by taxation, which is equally applicable to the un- 
 lawful purpose of aiding railroad companies, and others engaged in build- 
 ing and operating railroads, as it is any lawful purpose, and gives to the 
 officers entrusted with the control and operation of the money thus raised, 
 no means or power of discrimination as to the lawfulness of the work or 
 purpose to which it is to be applied, and this in contravention of sec. 6, 
 art. "V 111. of the Constitution, and therefore void. 
 
 The GonstUution of Indiana provides that " No county shall subscribe 
 for stock in any incorporated company, unless the same be paid for at the 
 time of such subscription." Art. 10, sec. 10. What is an "incorporated 
 
Ch. VI.] MUNICIPAL CHARTERS. 223 
 
 with much professional disapproval, and experience has 
 demonstrated that the exercise of it has been productive of 
 bad results. Taxes, it is everywhere agreed, can only be 
 imposed fov public objects, and taxation to aid in building 
 the roads of prvoate railway companies^ even if the use is 
 a public use, is hardly consistent with a proper respect for 
 the inviplabLlity of private property and individual rights. 
 Fraud usually accompanies the exercise of the power, and 
 extravagant indebtedness is the result ; and, sooner or later, 
 the power wUl be denied either by constitutional provision 
 (as in Pennsylvania, Ohio, and Illinois, it already is) or by 
 legislative enactment. It is too late to expect, in view of 
 the line of decisions referred to, that the courts in the states 
 which have already passed upon the question will retrace 
 their steps, and too much to hope that the courts in other 
 states will have the boldness successfully to stem the strong 
 tide of authority, strengthened, as it will be, by temporary 
 popular feeling and insidious corporate influence. 
 
 § 105a. Since the first edition of this work, the Su- 
 preme Court of the United States, following repeated in- 
 timations of its judges in previous cases, have directly sus- 
 tained the validity of legislative acts authorizing municipal 
 aid to railways.' In view of the prior adjudications of that 
 tribunal in the municipal bond cases, referred to in the 
 chapter on Contracts, and of the almost uniform holding of 
 the State Courts, no other result could have been anticipated. 
 This ends judicial discussion, if it does not terminate doubts. 
 The Supreme Court, in reaching this result, places its judg- 
 ment upon the ground that highways, turnpike?, canals and 
 railways,' although owned by individuals under public 
 grants or by private corporations, are publici juris ; that 
 they have always been regarded as governmental affairs, 
 
 company," and how and when stock may be paid for, see Lafayette, &c. 
 Railroad Company ®. Geiger, 34 Ind. 185, 1870, where the subject is very 
 elaborately considered by BusMrh, 3. John v, Oin., &c. Railroad Co., 35 
 Ind. 539; Aspinwall v. Jo Daviess Co., 33 How. 364. 
 
 ' Olcutt «. Supervisors, Dec. Term, 1873; Railroad Co. ■». Otoe County, 
 Dec. Term, 1873; S. C, reprinted, 3 Neb. 496; St. Joseph Township «. 
 Rogers, Dec. Term, 1873; S. C, 7 Albany Law Journal, 363 ; Rogers ». Bur- 
 lington, 3 Wall. 654; Mitchell d. Burlington, 4 Wall, 870. 
 
224 MUNICIPAL OOBPOBATIONS. [Ch. VI. 
 
 and their establishment and maintenance recognized as 
 among the most important duties of the State, in order to 
 facilitate transportation and easy communication among its 
 different parts ; and hence the State may put forth, in favor 
 of such improvements, both its power of eminent domain 
 (as it constantly does) and its power to tax, unless there be 
 some special restriction in the constitution of the particular 
 State. These powers may, in the judgment of the court, be 
 lawfully exerted, because the use ife in its nature a public 
 use, and these works are subject to public control and regu- 
 lation (except so far as this right has been lawfully parted 
 with by valid legislative contract), notwithstanding they 
 may be exclusively owned by private persons or corpo- 
 rations. It must be admitted that compulsory taxation in 
 favor of railways and like public improvements owned by 
 individuals or companies is an exercise of power going quite 
 to the verge of legislative authority. Although it is a doc- 
 trine that must now be considered as judicially settled, still 
 it is one which has, as we think, justly encountered a vigor- 
 ous opposition, both on the ground of expediency and 
 of power, and the exercise of the authority has, as before 
 noticed, been so disastrous as already, in some of the States, 
 to have led to constitutional provisions for the protection of 
 the citizen. 
 
 § 1055. But it is obvious, from this statement of the 
 grounds upon which the validity of such legislation rests, 
 that it furnishes no support for the validity of taxation in 
 favor of enterprises and objects which are essentially pri- 
 vate. We consider the principle equally sound and salu- 
 tary, that the mere incidental benefits to the public or the 
 State, or any of its municipalities or divisions, which result 
 from the pursuit by individuals of ordinary branches of 
 business or industry, do not constitute a public use in the 
 legal sense, which justifies the exercise either of the power 
 of eminent domain or of taxation. It would have b'een well, 
 in our judgment, if this doctrine had been extended in its 
 application to railway companies ; but it cannot be aban- 
 doned without unsettling the foundations of individual 
 rights, without recognizing legislative omnipotence over 
 private property, or the irresponsible despotism of a local 
 
Ch. VI.] MUNICIPAL CHARTERS. 225 
 
 majority, and unwisely opening the way for frauds and 
 abases which, in view of the past, cannot be contemplated 
 without deep anxiety." 
 
 ' The doctrine of the text finds interesting illustrations in several cases 
 recently determined. One is Lowell ®. Boston, decided by the Supreme 
 Judicial Court of Massachusetts in 1873. After the great fire in Boston, in 
 1873, the legislature enacted that the city might issue its bonds to the 
 amount of $20,000,000, the proceeds of which three commissioners appointed* 
 by the Mayor were authorized to loan in a safe and judicious manner "in 
 such sums as they shall determine to the owners of land, the buildings 
 upon which were burned by the fire in said Boston, on the 9th and 10th 
 days of November, 1873, upon the notes or bonds of said owners secured 
 by first mortgages of said land ; said mortgages to be conditioned that the 
 rebuilding shall be commenced within one year from the first day of Janu- 
 ary, 1873, and said commissioners to have full power to apply the proceeds 
 of said bonds in making said loans in such manner, and to make such 
 further provisions, conditions and limitations in reference to said loans, 
 and securing the same, as shall be best calculated, in their judgment, to 
 insure the employment of the same in rebuilding upon said land burned 
 over, and the payment thereof to the said city." 
 
 It will be seen that the object of this act, as shown by its provisions, 
 was "to insure the speedy rebuilding on land the buildings upon which 
 were burned " by the great fire ; and the question was as to the right of the 
 State to impose any taxes for this object, and this depended upon the 
 further question whether this object was, in a legal sense, a public object. 
 
 The court distinctly held, to use the language of the rescript send down 
 in the case, that taxes can only be laid " for some public service or some 
 object which concerns the public welfare •,"that "the preservation of the 
 interests of individuals either in respect of property or business, although it 
 may result incidentally in the advancement of the public welfare is, in its 
 essential character, a private and not a public object." " That the incidental 
 advantages to the public or to the State which result from the promotion of 
 private interests, or the prosperity of private enterprises or business does 
 not justify their aid by taxation. "That as a Judicial question the case is 
 not changed by the magnitude of the calamity which has created the emer- 
 gency." And finally the court say, "The expenditure authorized by this 
 statute being for private and not for public objects, in a legal sense, it ex- 
 ceeds the constitutional power of the legislature, and the city cannot legally 
 issue the bonds tor the purposes named in the act. 
 
 Another case is Allen «. Inhabitants of Jay, decided by the Supreme 
 Judicial Court of Maine, July, 1871, 13 Am. Law Reg. N. S. 481. The legis- 
 lature authorized the town of Jay to lend $10,000 to enable the borrowers to 
 build a saw-mill and grist-mill, and to exempt the mills from taxation foi 
 ten years. On the ground that the purpose was not a public one, the act 
 was adjudged unconstitutional. See opinions of the judges, 58 Maine, ap- 
 pendix, 590, et acq., given to the House of Representatives. 
 
 The other case is the Commercial National Bank v. City of lola, decided 
 15 
 
226 MUNICIPAL CORPORATIONS. [Ch. VI. 
 
 § 106. The courts concur, witli great unaaimity, in 
 holding that there is no implied authority in municipal, 
 corporations to incur debts or borrow money in order to be- 
 come subscribers to the stock of railway companies, and 
 that such power must be conferred by express grant. To 
 become stockholders in private corporations is manifestly 
 foreign to the usual purposes intended to be subserved by 
 •the creation of corporate municipalities, and the practice of 
 bestowing powers of this kind fs of recent origin, and hence 
 the rule, that in order to exist the authority must be spe- 
 cially conferred, and cannot be deduced from the ordinary 
 municipal grants.' 
 
 by the U. S. Circuit Court for the District of Kansas, June, 1873, to be re- 
 ported in 3 Dillon 0. Ct. Reports. For the same reasons the act of the 
 legislature which authorized the city of lola to appropriate $50,000 to aid 
 private persons in the erection and equipment of buildings, at or near the 
 city, to be used for manufacturing puiposes, was held unconstitutional, and 
 the bonds void which had been issued to raise the money thus appropriated. 
 The case was distinguished from those relating to railway aid bonds, and 
 also construes the provision of the constitution of the State that " The leg- 
 islature shall pass no fecial act conferring corporate powers." Ante, sec. 24a. 
 Further, as to extent and nature of the taxing power and distinction be- 
 tween public and private use, see, post, sees. 686, 587 ; Bloodgood ®. Rail- 
 road Co., 18 Wend. 65; Jenkins v. Andover, 103 Mass. 94, holding invalid 
 a statute authorizing taxation in favor of a private incorporated academy. 
 Same principle : Curtis «. Whipple, 34 Wis. 850 ; People «. Salem, 30 Mich. 
 453 ; Preeland v. Hastings, 10 Allen, 570 ; Tyson ». School Directors, 51 Pa. 
 St. 9; Thompson®. Pittson, 59 Maine, 545, 1871. 
 
 ' Aurora v. West, 33 Ind. 88, 508, 1864 ; Starin v. Genoa, 33 N. T. 
 439, 1869 ; Gould v. Sterling, li. 439, 456 ; Atchison ». Butcher, 3 Kansas, 
 104, 1865; Bumes u. Atchison, 3 lb. 454; Bank ». Rome, 18 N. T. 38; 
 Bridgeport v. Housatonic Railway Co. , 15 Conn. 475 ; Marsh v. Fulton Co., 
 10 Wall. 676, 1870; Cook ?. Manufacturing Co. 1 Sneed (Tenn.) 698, 1854; 
 Nichol V. Nashville, 9 Humph. (Tenn.) 353 ; City and County of St. Louis 
 V. Alexander, 33 Mo. 483, 1856; Jones v. Mayor, &c., 35 Geo. 610, 1858; 
 Oevricke v. Pittsburg, 7 Am. Law Reg. 735 ; Duanesburg «. Jenkins, 40 
 Barb. 574; French v. Teschemaker, 34 Cal. 518, 1864; People ®. Mitchell, 
 35 N. T. 551, 1866; St. Joseph Township v. Rogers, U. S. Sup. Ct., Dec. 
 T., 1873 ; English v. Chicot County, 36 Ark. 454, 1871 ; Thompson v. Lee 
 County, 3 Wall. 337. Commercial Bank v. lola, 3 Dillon C. C. R., 1873. 
 "No lawyer doubts that a borough can only subscribe to a irailroad when 
 expressly authorized by law." Block, 0. J., in Sharpless's Case, cited 
 Pennsylvania Railway Co. v. Philadelphia, 47 Pa. St. 189. A railroad is 
 such a " road " as is embraced in the terms of a charter by which the com- 
 mon council of a city were authorized ' ' to take stock in any chartered 
 
Ch VI.] MnNICrPAL CHAETERS. 327 
 
 Accordingly, where a city was, by charter, specifically 
 authorized to construct wharves, docks, piers, water works, 
 works for lighting the city, &c., and was also authorized, 
 upon certain formalities, to create a debt, this was con- 
 sidered to mean a debt for some of these specified purposes, 
 and not to empower the corporate authorities to issue bonds 
 to aid in the construction of a railroad. ' So there is no im - 
 plied power in a municipal corporation to take stock in a 
 manufacturing company located in or near the corpora- 
 tion,' or to aid or engage in other enterprises, essentially 
 private.' 
 
 company for making roads to said city." Railroad Co. «. Evaasville, 15 
 Ind. 395, 1860 ; Aurora «. West, 9 lb. 74 ; post, chapter on Contracts. The 
 legislature may, before (Aspinwall b. Daviess County, 23 How. 364), if not, 
 indeed, after, the subscription is made, but before it is paid for, annul the 
 proceeding and authorize the municipal corporation to withdraw the sub- 
 scription and release its right to the stock. People v. Coon, 25 Cal. 635. 
 Extent of legislative power, ante, chap. IV. 
 
 ' Lafayette ». Cox, 5 Ind. (Port.) 38, 1854. As to rights of bondholders, 
 however, see post. Contracts, and decisions in the National and State Courts, 
 there cited. Power in general to the city council of Charleston, by the 
 charter of 1783, to pass, inter alia, "every other by-law as shall appear to 
 the city council requisite and necessary for the security, welfa/re, and conve- 
 nience of said city," was held by the Court of Errors to authorize the city 
 to subscribe to the stock of railroad companies within or without the state. 
 Copes v. Charleston, 10 Rich. (South Car.) Law, 491, 1857 ; see City Council 
 V. Baptist Church, 4 Strob. Law, 306, 308, for preamble to the charter of 
 Charleston. There can be little doubt that this is pressing the constructive 
 powers of the corporation to an unwarrantable extent. 
 
 Constritction of special acts or charters held to give power to take stock and 
 issue lands, Meyer d. Muscatine, 1 Wall. 384, 1863 ; Curtis ». Butler County, 
 24 How. 435; Gelpcke ».. Dubuque, 1 Wall. 220; City and County of St. 
 Louis v. Alexander, 23 Mo. 483; Railroad Company ®. Otoe County, 1 
 Dillon C. C. 338, 1871 ; Rogers v. Burlington, 3 Wall. 654 (compare. Cham- 
 berlain «. Burlington, 19 Iowa, 395) ; Fosdick ». Perrysburg, 14 Ohio St. 
 472 ; Goahom ®. County, 1 West Va. 308 ; Taylor «. Newberne, 2 Jones 
 (North Car.) Eq. 141 ; Caldwell ». Justices, 4 11. 323; Veeder v. Lima, 19 
 Wis. 280, 1865. The opinion of Dixon, 0. J., contains an interesting dis- 
 cussion of the questions presented by that case. 
 
 « Cook «. Manufacturing Co. 1 Sneed (Tenn.) 698, 1854; Com. Nat. 
 Bank «. lola, 2 Dillon 0. 0. R., 1873. 
 
 « Clark v. Des Moines, 19 Iowa, 199, 1865 ; Hanson ». Vernon, 27 Iowa, 
 28; Cooley Const. Lim. 212. A city corporation cannot subscribe for 
 stock in a gteamislmp line without express legislative authority. (Pennsyl- 
 vania Railroad Company t>. Philadelphia, 47 Pa. St. 189 ; and since the new 
 
228 MUNICIPAL CORPORA'nONS. [Ch. VI. 
 
 § 107. Whether special author iiy to a municipality to 
 borrow money to pay for stock subscribed to a railway 
 company will impliedly repeal, pro tanto, existing charter 
 limitations upon the rate of taxation, is a question depend- 
 ing upon construction, and in relation to which the courts 
 have diflfered. But the strong inclination of the National 
 Supreme Court seems to be in favor of that construction 
 which restricts such limitations to the exercise of the power 
 of taxation in the ordinary course of municipal action." 
 
 § 108. If ^e power to issue bonds in aid of railway and 
 other like enterprises does not exist, they are void into 
 whosesoever hands they may come.' The power, when it has 
 been conferred, to aid or engage in extra- municipal enter- 
 prises, being extraordinary in its nature and burdensome to 
 
 constitution of Pennsylvania (art. XI. sec. 7, Amendment to Constitution, 
 1857), the legislature cannot give that power. Where a charter recited its 
 purpose to delegate to the city authorities power to make such ordinances 
 as the "contingencies, or the local circumstances," of the corporation 
 might require, and gave " full power and authority to make such assess- 
 ments on the inhabitants of the city, or those who hold taxable property 
 therein, for the safety, benefit, and advantage of the city, as shall appear to 
 them expedient," the court were of opinion that the city might assess a tax 
 upon the real estate within the corporation for the purpose of constructing 
 a canal " for manufaclmring purposes, and for the better securing an abun- 
 dant supply of water for the city," and if it could not, yet that it was com- 
 petent for the legislature, as it did by a subsequent act, to adopt and con- 
 firm the action of the city in passing such an ordinance. Frederick v. 
 Augusta, 5 G-eo. 561, 1848. Aside from the curative act, the correctness of 
 the view taken by the court is by no means clear. Ariie, p. 92, sec. 46; 
 sees. 105a, 105&. 
 
 ' Butz V. Muscatine, 8 Wall. 575, 1869. Contra, Clark v. Davenport, 14 
 Iowa, 494; Learned v. Burlington, 2 Am. Law Reg. (N. S.) 394, and note; 
 Leavenworth ». Norton, 1 Kansas, 433 ; Bumes «. Atchison, 2 Kansas, 254. 
 And see Commonwealth v. Pittsburg, 34 Pa. St. 496 ; Amey v. Allegheny 
 City, 24 How. (TJ. 8.) 364, ante, sec. 89 ; Fosdick v. Perrysburg, 14 Ohio St. 
 472; Cumberland o. Magruder, 34 Md. 381, 1871; see Assessors «. Commis- 
 sioners, 3 Brews. (Pa.) 333. 
 
 ' Marsh v. Pulton County, supra; Clay v. County. 4 Bush (Ky.) 154. 
 See further, chapter on Contracts, post, where the rights of hona fide hold- 
 ere of such instruments are considered at length. Dunovan «. Green, 57 111. 
 30; Lynde ®. Winnebago County, Supreme Court United States, January, 
 1873. James «. Milwaukee, United States Supreme Court, December T., 
 1872. Post, sec. 426. Police Jury «. Britton, 15 Wall. 566. 
 
Ch. VI.] MUNICIPAL CHARTERS. 329 
 
 the citizen, must (at least between all persons except hona 
 fide holders of the securities) be strictly pursued according 
 to the terms and conditions of the grant conferring it.' 
 Thus, under an act authorizing town officers to borrow 
 money upon the credit of the town, and to pay it over to a 
 railroad corporation, to be expended by it " in grading and 
 constructing a railroad," taking in exchange its stock at 
 par, it is not within the power of municipal officers to make 
 a direct exchange of the bonds of the town, even for an 
 equal nominal amount of stock, as this leaves it in the 
 . power of the railroad corporation to sell such bonds at a 
 discount.' So, in a case where a county had by the legis- 
 lative act no authority to issue its bonds to the railroad 
 company unless upon the sanction of a previous vote after 
 fhirty days' notice of the election to be held for that 
 purpose, the Supreme Court of Illinois held, in a direct pro- 
 ceeding against the county to enjoin it from issuing its 
 bonds, that although there was an election at which a 
 majority voted in favor of the subscription, yet the failure 
 to give the thirty days' notice was a fatal defect, and the 
 issue of the bonds was restrained.' It may be observed in 
 
 ' In Pennsylvania the doctrine has been adopted, that equity will compel 
 the holder to take what he gave and interest where the bonds were issued 
 in violation of statute ; but qum-e ? See County ». Brinton, 47 Pa. St. 367 ; 
 Pennsylvania Railroad Company v. Philadelphia, li. 193, 
 
 » Starin c. Genoa, 33 N. Y. 439 ; Gould v. Steriing, II. 439. In the 
 case last cited, Selden, J., p. 460, remarks: "In the present case the only 
 authority given [to the town] by the act is to borrow upon the bonds of 
 the town. No express power to sell the bonds is given, and no such power 
 can, I think, be implied. To borrow money, and give a bond or obligation 
 for it, and to sell a bond or obligation for money, are by no means identical 
 transactions. In the one case the money and the bond would, of course, be 
 equal in amount; in the other they might or might not be equal." Whether 
 such a defence would be available against a bona fde holder of the bonds 
 was not determined. See Woods r>. Lawrence County, 1 Black, 386 ; Moran 
 ©. Miaini County, 2 Black, 733. That such a defence is not available against 
 a holder for value, see ^Mi, sec. 421. 
 
 ' Harding «. Rockford, &c. Railroad Co., Illinois Supreme Court, May, 
 1873, 5 Chicago Legal News, 434. 
 
 In delivering the opinion of the court, Thornton, J., remarks: "Such 
 municipalities were not created with the view to engage in commerce, or to 
 aid in the construction of railways, but for governmental purposes only. 
 When they exercise the functions given by the statutes under consideration, 
 
230 MUNICIPAL CORPORATIONS. [Ch. VL 
 
 conclusion, that the Supreme Court of the United States, in 
 the municipal railway aid bond cases referred to in a subse- 
 quent chapter,' have held the doctrine in favor of the inno- 
 cent holders for value of such securities, that the munici- 
 pality may be estopped, by recitals in the bonds, by the 
 subsequent levy of taxes to pay interest thereon, and by 
 retaining the stock which was received in exchange for the 
 bonds or purchased with their proceeds, to set up in de- 
 fence a non-compliance with preliminary conditions." This 
 is a doctrine, however, which is asserted for the protection 
 of such holders, and has no place in controversies which 
 arise before the issue of the bonds, between the tax-payers 
 or municipality on the one hand, and the company on the 
 other. In such cases estoppel has no place, and the sound 
 doctrine is that compliance with all substantial or material 
 conditions is essential. 
 
 the powers granted must not only be clearly conferred, but strictly pursued. 
 If the mode prescribed for carrying into effect the right to issue bonds is 
 not complied with in all material matters, then the bonds should not be 
 issued, and thus the tax-payer will be exempt from the imposition of 
 illegal taxes, and a grievous burden upon his property. These principles 
 have been so elaborately discussed and fully settled by this court, that we 
 need only refer to some of the cases : The People v. Tazewell County, 33 
 111. 147 ,' Fulton County ®. The Mississippi & "Wabash R. E. Co., 31 111. 
 273 ; Supervisors of Schuyler Co. ». The People, 15 HI. 181 ; Supervisors 
 of Hancock County «. Clark, 37 Ih. 305 ; Marshall County v. Cook, 38 lb. 
 44 ; Wiley ®. The Town of Brimfield (not reported.)" 
 
 If aid has been conditionally voted, the condition must be complied 
 with before the company can demand the aid. Railroad Co. o. Hartford, 
 68 Maine, 33. 
 
 • Pos«, chapter SIV. 
 
 ' Post, sec. 417, ei acq. 
 
Oh. YIL] DISSOLUTION. 231 
 
 CHAPTER VII. 
 
 DiSSOLTTTIOK OF MUNICIPAL COEPOEATIOITS. 
 
 In England. 
 
 § 109. In England, a municipal corporation may be dis- 
 solved, 1. By an act of 'parliament, this power being con- 
 sidered a necessary consequence of the omnipotence of that 
 body in all matters of political institution.' The Mng may, 
 by his prerogative, create, but cannot dissolve or destroy a 
 corporation ; may grant privileges, but, when vested, cannot 
 take them away." 
 
 It has there often been declared, that a municipal cor- 
 poration may also be dissolved, 3. By fhe loss of an integral, 
 part, or the loss of all, or of the majority of the members of 
 any integral part, without which it cannot transact its bussir ' 
 ness, unless the parts that remain have the right to act or to 
 restore the corporate succession.' 
 
 ' Co. Litt. 176, note; 3 Kyd, 447; Eex v. Amery, 3 Term B. 515 ; Glover, 
 408; Angell & Ames, ch. 23, sec. 767; 3 Kent's Com. 305; County Com- 
 missioners V. Cox, 6 Ind. 403; State ». Trustees, &c. 5 Ind; 77; ante, 
 sec. 15. 
 
 ■■' Ante, sec. 15; sec. 16; Rex v. Amery, mpra; Regents of University «. 
 Williams, 9 Gill and Johns. 365, 409, 1838. In this case, Buchanan, J., in 
 substance, observes: The crown may create, but cannot, at pleasure, dis- 
 solve a corporation, or, ■without its consent, alter or amend, its charter. 
 Parliament may do this; but, restrained by public opinion, it bas not under- 
 taken to dissolve any private corporation since the time of Henry VIII. so 
 that the power to do so rests wholly in theory. In 1783 a bill was proposed 
 to remodel the East India Company. Lord Thuilow opposed it as sub- 
 versive of the law and constitution, and, in strong: language, declared it to 
 be " an atrocious violation of private property, which cut every English- 
 man to the bone." 
 
 ' Willc. on Corp. 335, chap. YH. This chapter contains an interesting 
 discussion of the question of dissolution, and it would seem that the author, 
 notwithstanding the occasional judgments and the many and broad diotaia 
 the books, doubts whether there can be an actual and total dissolution of a 
 municipal corporation, either by the loss of an, integral part, or by surren 
 
232 MUNICIPAL CORPOBATIONS. [On. VIL 
 
 3. By a surrender of the francMse of being a corpora- 
 tion to tlie crown, whose acceptance is necessary ; and to be 
 effectual the surrender must be enrolled in chancery. The 
 power to surrender has been much cLuestioned ; the argu- 
 ment in favor of it being, that since by royal grant and ac- 
 ceptance a corporation may be created, so by surrender 
 and acceptance it maybe annulled. It is admitted, how- 
 ever, that a corporation created or confirmed by parliament 
 or statute cannot dissolve itself bv a surrender of its charter 
 or franchise.' 
 
 4. "Qj forfeiture of its charter, through negligence or 
 abuse of its franchise, judicially ascertained by proceedings 
 in quo warranto or scire facias. This mode of dissolution 
 proceeds upon the doctrine, well settled as to private cor- 
 porations, both in England and in this country, and, per- 
 haps, settled in that country, also, as respects the old muni- 
 cipal corporations when created by royal charter, that there 
 is a tacit or implied condition annexed to the grant of every 
 act or charter of incorporation, that the grantees shall not 
 
 • 
 der, or by forfeiture. But see 3 Kyd, oh. 5; Glover, ch. 30; Angell & 
 
 Ames, sec. 769 ; and particularly Eex v. Morris and Rex «. Stewart, 3 East, 
 213; 4 East, 17. In Rex v. Passmore, 2 Term R. 241, where the subject 
 was much considered, Lord Kenyon observed, when an integral part of a 
 corporation is gone, without whose existence the functions of the cor- 
 poration cannot be exercised, and the corporation has no manner of supply- 
 ing the integral part, the corporation is dissolved as to certain purposes. 
 But the king may renovate either with the old or new corporators. 
 
 The leading authorities respecting the effect of the loss of an integral 
 ■paa-t are, 1 Rol. Abr. 514 ; Regina v. Bewdley, 1 P. Wms. 207 ; Banbury's 
 Case, 10 Mod. 346; Rex «. Tregony, 8 Mod. 129; Colchester v. Seaber, 3 
 Burr. 1870; S. C, 1 Wm. Bl. 591, which, however, is said not to be a case 
 of the loss of an integral part, but of magistrates ; Grant Corp. 305, note ; 
 Rex v. Passmore, 3 Term R. 341. The foregoing cases are succinctly 
 stated by Mr. Kyd, 3 Corp. ch. 5. See, also, Mayor, &c. of Colchester «. 
 Brooke, 2 Queen's B. 383, and Mr. Justice OamplelVs learned opinion in 
 Bacon ii. Robertson, 18 How. (U. S.) 480, 1855; infra, sec. 113, note; 
 people «. Wrpn, 4 Scam. 375, citing and relying on Colchester v. Seaber, 
 supra; Smith's Case, 4 Mod. 53; Smith v. Smith, 3 Dessaus. (^S. C.) 557; 
 "VKelch ». Ste. Genengye, 1 Dillon C. C. 180 ; chapters on Corporate Officers 
 and Corporate Meetings, post, 
 
 ' Rex. V. GshQurne, 4 East, 336; Eex v. Miller, 6 T. B. 377; Willc. 832, 
 pi. 861; Howard's Case, Hutt, 87; Grant on Corp. 306, 308; Thicknesse a 
 ■jCaMlQo..,.4M- *F.. 473, 
 
Ch. Vn.J DISSOLUTION. 233 
 
 neglect to use, or misapply the powers granted, and tliat if 
 they do, the condition is broken upon which the corpora- 
 tion was created, and the corporation thereupon ceases to 
 exist. And in the cases in the time of Charles II. it was 
 held, that the corporation might forfeit its franchise by 
 reason of the neglect or misconduct of its officers. ' 
 
 In the United States. 
 
 § 110. These various modes of dissolution, except the 
 first, are believed by the author to be inapplicable to muni- 
 cipal corporations in this country as they are generally 
 created and constituted. Here it is the people of the locality 
 who are erected into a corporation, not for private, but for 
 public purposes. The corporation is mainly and primarily 
 an instrument of government. The officers do not constitute 
 the corporation, or an integral part of it. The existence of 
 the corporation does not depend upon the existence of of- 
 ficers. The qualified voters or electors have, indeed, the 
 right to select officers, but they are the mere 9,gents or ser- 
 vants of the corporation, and hence the doctrine of a disso- 
 lution by the loss of an integral part has, in such cases, no 
 place. If all the people of the defined locality should 
 wholly remove from or desert it, the corporation would, 
 from necessity, be suspended or dormant, or, perhaps, en- 
 
 ' 1 Blacks. Com. 485; 2 Kyd, 447; Willc. chap. YH. 335; ««. ieq.; 
 Taylors of Ipswich, 1 Eol. 5 ; Kex ». Grosvenor, 7 Mod. 199 ; Smith's Case, 
 4 Mod. 55*^ 58 ; S. C, 13 Mod. 17 ; Skin. 311 ; 1 Show. 378 ; Rex v. Saunders, 
 3 Bast, 119; Mayor, &c. of Lyme n. Henley, 3 01. & F. 331; Eex ®. Kent, 
 13 East, 330 ; Priestley v. Foulds, 3 Scott K. R. 305, 335 ; Attorney General 
 V. Shrewsbury, 6 Beav. 330. The American cases relating to the dissolution 
 of private corporations by forfeiture of their charters ; what will constitute 
 sufficient ground of forfeiture ; and the mode of proceeding to ascertain 
 and enforce the forfeiture, are collected, and the result very clearly and 
 satisfactorily stated, in Angell & Ames on Corporations, chap. XXII. See, 
 also, 3 Kent Com. 305. Private corporations may lose their legal existence, 
 1. By the act of the legislature; 3. By the death of aU their members; 3. 
 By a forfeiture of their franchises ; and 4. By a surrender of their charter. 
 No other mode of dissolution is anywhere alluded to. Boston Glass Manuf . 
 «. Langdon, 34 Pick. 49, 53, per Morton, J. ; Commonwealth v. Union Ins. 
 Co., 5 Mass. 330, 333; Riddle v. Locks and Canals, 7 Mass. 169; School d. 
 Canal, &c. Co., 9 Ohio, 303; Canal Co. ». Railroad Co. 4 Gill & Johns. 1; 
 Vincennes University v. Indiana, 14 How. 368. 
 
234 SIDOTCIPAL CORPORATIONS. [Ch. VIL 
 
 tirely cease ; but the mere neglect or mere failure to elect 
 efflcers will not dissolve the corporation, certainly not while 
 the right or capacity to elect remains.' In this respect 
 municipal corporations resemble ordinary private corpora- 
 tions, which exist per se, and consist of the stockholders 
 who compose the company. The officers are their agents, 
 or servants, but do not constitute an integral part of their 
 corporation, the failure to elect whom may suspend the 
 functions, but will not dissolve th% corporation. ° 
 
 § 111. Since all of our charters of incorporation come 
 
 Mr. Grant, in his work on Corporations, considers it doubtful whether 
 an information in the nature of quo wa/iTanto will lie, in England, against 
 parliamentary or statute corporations, for usurping powers not given, or 
 misusing those conferred (Corp. 307, 308 ; Rex. v. Nicholson, 1 Str. 39) ; but 
 in this country, the law as to private corporations is indisputably settled, 
 that in such cases an information may be brought. 
 
 ' Willc. chap. Vn. and observations at pp. 335, 336, 837, pi. 853 ; Col- 
 chester D. Seaber, 3 Burr. 1866 ; Colchester v. Brooke, 7 Queen's B. 383 ; 
 Rex B. Passmore, 3 Term R. 341 ; Grant on Corp. 308 ; Bacon «. Robertson, 
 18 How. 480 ; Lowber ®. Mayor, &c. of New York, 5 Abb. 335 ; Clarke ®, 
 Rochester, 76. 107; "Welch «. Ste. Genevieve, 1 Billon C. C. 130, 1871. 
 That iJiLQ failure to elect officers does not dissolve, while the capacity to elect 
 remains, see, also. Philips v. Wickam, 1 Paige Ch. 59 ; Commonwealth v. 
 Cullen, 1 Harris (Pa.) 133; President v. Thompson, 30 III 197; Rose v. 
 Turnpike Co., 3 Watts (Pa.) 46; People v. "Wren, 4 Scam. (III.) 275; Brown 
 V. Insurance Co., 3 La. An. 177; "Welch ». Ste. Genevieve, supra; Green 
 Township, 9 "Watts & S. (P*-) 38; Vincennes "University v. Indiana, 14 
 How. 368 ; Muscatine Tumverein v. Funck, 18 Iowa, 469. In Lea ». Her- 
 nandez, 10 Texas, 137, 1853, it appeared that a place was incorporated as a 
 town prior to 1848, that in the year just named the legislature passed an 
 act to incorporate the town, and that no election for officers nor any organ- 
 ization was had thereunder for three years and down to the commencement 
 of the action, nor were there any officers de facto acting. The court held 
 that the failure to elect officers operated to dissolve the corporation, there 
 being no express provision of the charter to the contrary. But no au- 
 thorities are cited and no reasons given, and the conclusion that an actual 
 dissolution of the corporation resulted from a failure to elect, is believed to 
 be unsound. 
 
 The existence of a municipal corporation is not considered to be inter- 
 rupted in consequence of a change in the council. Elmendorf v. Ewen, 
 N. T. Leg. Obs. 85 ; Ebnendorf v. Mayor, &o. of New York, 35 Wend. 693. 
 Further, see chapters relating to Corporate Officers and Corporate Meetings, 
 uost. 
 
 ' Angell & Ames on Corp. sec. 771, and cases there cited ; People ». 
 Fairbury, 51 111, 149, 1869. 
 
Oh. Vn.] DISSOLUTION. 235 
 
 from the legislature," there can be no dissolution of a nmni- 
 cipal corporation by a surrender of its franchise. The state 
 creates such corporations ioT public ends, and they will and 
 must continue until the legislature annuls or destroys them, 
 or authorizes it to be done. If there could be such a thing 
 as a surrender, it would, from necessity, have to be made . 
 to the legislature, and its acceptance would have to be mani- 
 fested by appropriate legislative action. 
 
 § 112. The doctrine of a forfeiture of the right to be a 
 corporation has also, it is believed by the author, no just or 
 proper application to our municipal corporations." If they 
 neglect to use powers in which the public or individuals 
 have an interest, and the exercise of such po\yers be not 
 discretionary, the courts will interfere and compel them to 
 do their duty.' On the other hand, acts done beyond the 
 powers granted are void.* If private rights are threatened 
 or invaded, the courts will, as hereafter shown, restrain or 
 redress the injury.' With what surprise would we hear of 
 a proceeding to forfeit the charter of the city of New York 
 or Chicago because of the misconduct of its officers, or be- 
 cause the common council, as in the famous case against 
 the city of London, were assuming to exercise unauthorized 
 powers by ordaning an oppressive by-law. In short, unless 
 otherwise specially provided by the legislature, the nature 
 and constitution of our municipal corporations, as well as 
 the purposes they are designed to subserve, are such that 
 they can, in the author's judgment, only be dissolved by 
 the consent of the legislature. They may become inert, or 
 dormant, or their functions may be suspended, for want of 
 officers or of inhabitants, but dissolved, when created by an 
 act of the legislature, and once in existence, they cannot be, 
 by reason of any default, or abuse of the powers conferred, 
 either on the part of the officers or inhabitants of the in- 
 
 ' Ante, sec. 17; sec. 32; sec. 30. 
 
 » See "Welch v. Ste. Genevieve, 1 DiUon 0. 0. 130, 1871, arguendo. 
 ' Ante, chap. V. sec. 63 ; poO,, chapter on Mandamus. 
 ' Ante, sec. 6S, and notes. 
 
 ' See chapter on Remedies to Prevent, Correct, and Eedresa Illegal Oo^ 
 porate Acts, jk?«*, sees. 737-748. 
 
936 MUNICIPAL CORPORATIONS. [Ch. YIL 
 
 corporated place. As they can exist only by legislative 
 sanction, so they cannot be dissolved or cease to exist ex- 
 cept by legislative consent, or pursuant to legislative 
 provision. 
 
 Effeeb of Dissolution. 
 
 § 113. At common law, a corporation, of whatever kind, 
 which was wholly dissolved, was considered to be civilly 
 dead ; and the effect was, that tl^eir lands reverted to the 
 grantor or his heirs, and the debts of the corporation, wheth- 
 er owing to or by it, were extinguished. Leases made by 
 the corporation would cease because of the reversion of the 
 lands to the original owners ; and, for the same reason, 
 lands given to, or held by, the corporation for charitable 
 purposes would be lost.^ These inconveniences and results 
 are so disastrous that the English courts, as the more recent 
 cases before cited will show, have doubted and limited, al- 
 though they may not have overthrown the doctrine that 
 municipal corporations may be totally dissolved. These 
 consequences of a dissolution of a corporation attached to 
 all corporations, eleemosynary, municipal, and private ; and 
 since this doctrine has, in this country, been generally re- 
 jected as to private corporations organized for pecuniary 
 profit, and rests upon no foundation in reason or justice, it 
 may, perhaps, be safely affirmed that it would not, on full 
 consideration, be applied to the dissolution of a municipal 
 corporation, by an absolute and unconditional repeal of its 
 charter, or (if that may be done) to the case where the 
 charter of such a corporation is forfeited by judicial sentence. 
 Therefore, the leases of a corporation would not be dis- 
 turbed by its dissolution, nor would their lands held in fee 
 revert, nor would those held in trust for charitable purposes 
 be lost, since equity would supply trustees." 
 
 1 Co.Litt. 13; 1 Lev. 237; Knight «. Wells, 1 Lut. 519; Rex ®. Sanders, 
 S East, 119 ; Attorney General v. Gower, 9 Mod. 226 ; 1 Rol. Abr. 816 ; 
 Colchester «. Seaber, 3 Burr. 1866; "Willc. 330, pi. 858; 3 Kyd, 516; Rex 
 e. Passmore, 3 Term R. 247 ; Grant Corp. 305 ; Colchester s. Brooke, 7 
 Queen's B. 383 ; Commonwealth ®. Roxbury, 9 Gray, 610, note. 
 
 « Ante, sec. 37 ; sec. 47 ; chapters on Corporate Boundaries and Prop- 
 erty, 'goxt. Bacon t. Robertson, 18 How. (tJ. 8.) 480, 1855; Girard o. 
 Philadelphia, 7 Wall. 1, 1868 ; Mumma e. Potomac Company, 8 Pet. 281, 
 
Ch. vn.] DISSOLUTION. 237 
 
 § 114. As respects the creditors of a municipal corpora- 
 tion, their rights are protected from the legislative invasion 
 by the .Constitution of the United States, and no repeal of a 
 
 1834; Currana. Arkansas, 15 How. (U. S.) 312; 2 Kent, 307, note; Augell 
 & Ames'Corp. 779 a; Coulter «. Robertson, 24 Miss. 378; County Com- 
 missioners v. Cox, 6 Ind. 403 ; State v. Trustees, &c., 5 Ind. 77 ; Vincennes 
 University v. Indiana, 14 How. 268 ; Owen v. Smith, 31 Barb. 641 ; Com- 
 monwealth ». Roxbury, 9 Gray, 510, note. 
 
 The general subject of the effect of a dissolution of a corporation is exten- 
 sively discussed by Mr. Justice Campbell, in Bacon ®. Robertson, mpra. 
 The case was a bill in chancery by the stoctholders of a bank, whose 
 charter had been judicially forfeited, for a distribution of the surplus after 
 the payment of the debts, and the relief was granted. The Supreme Court 
 of the United States seemed to be of opinion that, upon the general princi- 
 ples of equity jurisprudence, and mthout statutory aid, the suiplus of the 
 assets of a corporation for pecuniary profit, after the payment of debts and 
 expenses, belonged to the shareholders ; that the creditor of such a corpora- 
 tion, dissolved or declared forfeited by judgment upon quo warranto or 
 judicial sentence, has, without a statute to that effect, a claim in equity 
 upon the corporate property for the satisfaction of his debt; that lands 
 conveyed to the corporation in fee and for a full price do not revert, and 
 that the stockholder, as to the sxirplus after paying the debts, stands upon 
 grounds as high and has claims as irresistible as the creditor before had. 
 The usual consequences of a dissolution, as stated by the text writers, if 
 correct, which was doubted, were deemed inapplicable to moneyed or 
 trading corporations. 
 
 In the course of his admirable opinion, the learned justice named ob- 
 served : " The common law of Great Britain was deficient in supplying the 
 instrumentalities for a speedy and just settlement of the affairs t)f an insol- 
 vent corporation whose charter had been forfeited by judicial sentence. 
 The opinion usually expressed as to the effect of such a sentence was un- 
 satisfactory and questioned. There had been instances in Great Britain of 
 the dissolution of public or ecclesiastical corporations by the exertion of 
 public authority, or as a consequence of the death of their members, and 
 parliament and the courts had aflSrmed, in these instances, that the endow- 
 ments they had received from the prince or pious founders would revert in 
 suoh a case, Stat, de terris Templariorum, 17 Edw. n. ; Dean and Canons 
 of Windsor, Godb. 211; Johnson «. Norway, Winch. 37; Owen, 73; 6 Vin. 
 Abr. 280. What was to become of their personal estate, and of their debts 
 and credits, had not been settled in any adjudicated case, and, as was said 
 by Pollexfen in the argument of the quo warranto against the city of Lon- 
 don, was, perhaps, " non deflnitur in jure." [See ante. Introductory Chapter, 
 sec. 8.] Solicitor Finch, who argued for the crown in that cause, admitted : 
 "I do not find any judgment in a quo warranto of a. corporation being 
 forfeited." Treby, on behalf of the city, said: "The dissolving a corpora- 
 tion by a judgment in law, as is here sought, I believe is a thing that never 
 
238 MUNICIPAL COEPORATIONS. [Ch. VH. 
 
 charter of a municipal corporation can so dissolve it as to 
 impair the obligation of the contract, or, it may probably be 
 safely added, preclude the creditor from recovering his 
 debt.' 
 
 came within the compass of any man's imagination till now ; no, not so 
 much as the putting of a case. For in all my search (and upon this occa- 
 sion I have bestowed a great deal of time in searching) I cannot find that 
 it even so much as entered into the conception of any man before ; and I 
 am the more confirmed in it because so learnM a gentleman as Mr. Solicitor 
 has not cited any one such case wherein it has been (I do not say adjudged, 
 but) even so much as questioned or attempted; and, therefore, I may very 
 boldly call this a case primcB impresaionia. " The argument of PoUexC en was 
 equally positive. 
 
 The power of courts to adjudge a forfeiture so as to dissolve a corpora- 
 tion was affirmed in that case, but the efiect of that judgment was not 
 illustrated by any execution, and the courts were relieved from their em- 
 barrassment by an act of parliament annulling it. Smith's Case, 4 Mod. 
 63; Skin. 310; 8 St. Trials, 1043, 1053, 1383. Nor have the discussions 
 since the revolution extended our knowledge upon this intricate subject. 
 The case of Rex v. Amery, 3 Term R. 515, has exerted much influence upon 
 text writers. The questions were, whether a judgment of seizure quoaque 
 upon a default was final, and, if so, whether the king's grant of pardon and 
 restitution would overreach and defeat a charter granting to a new body of 
 men the same liberties, intermediate the seizure and the pardon. The 
 king's bench, relying upon the Year-Book, discovered that it did not sup- 
 port the conclusion drawn from it, and Chief Baron Eyre says that "Lord 
 Coke had adopted the doctrine too hastily." The discussions upon this 
 case show how much the knowledge of the writ of quo warranto, as it had 
 been used and applied under the Plantagenets and Tudors, had gone from 
 the memories of courts and lawyers. 4 Term R. 133; Tan. on Quo War. 
 24. In Colchester v. Seaber, 3 Burr. 1866, where the suit was upon a bond, 
 and the defence was, that certain facts had occurred to dissolve the corpora- 
 tion, and that the creditor's claim was extinguished on the bond, Lord 
 Mansfield said, "Without an express authority, so strong as not to be 
 gotten over, we ought not to determine so much against reason as that 
 parliament should be obliged to interfere." The question occurs here, 
 Could parliament interfere ? And the answer would be, by their authoriz- 
 ing a suit to be brought, notwithstanding the dissolution. These are all 
 cases of municipal corporations where the corporators had no rights in the 
 property of the corporation in severalty." 
 
 ' Ante, chap. IV. passim ; particularly, sec. 41 ; Cooley Const. Lim. 390, 
 293; Curran b. Arkansas, 15 How. (U. S.) 313; Bacon v. Robertson, supra; 
 2 Kent, 307, note; Coimty Commissioners v. Cox, 6 Ind. 403; State v. 
 Trustees, 5 Ind. 77; Coulter «. Roberson, 34 Miss. 378; Gelpcke v. Du- 
 buque, 1 Wall. 175, 1865 ; Von Hoffman v. Quincy, 4 Wall. 535 ; Welch v. 
 Bte. Genevieve, 1 Dillon 0. C. 130; Thompson v. Lee County, 8 Wall. 337; 
 
Ch. Vn.] DISSOLUTION, 239 
 
 § 115. The name of an incorporated place may be 
 changed, its boundaries enlarged or diminished, and its 
 mode of government altered, and yet the corporation not be 
 dissolved, but in law remain the same." 
 
 § 116. Where the functions of an old corporation are 
 superseded, or where the corporation, by loss of all its 
 members, or of an integral part, is dissolved as to certain 
 purposes, it may be revived by a new charter, and the 
 rights of the old corporation be granted over to the same, or 
 a new set of corporators, who, in such case, take all tlie 
 rights, and are subject to all the liabilities, of the old cor- 
 poration, of which it is but a continuation." 
 
 Havemeyer ®. Iowa County, 3 "Wall. 394; Butz v. Muscatine, 8 "Wall. 575; 
 Lansing b. Treasurer, &c., 1 Dillon 0. C. 523 ; Soutter ». Madison, 15 Wis. 
 30; Smith ». Appleton, 19 Wis. 468; Blake v. Railroad Co., 39 JST. H. 435. 
 The dissolution of a private corporation by authorized legislative act, or 
 judicial sentence, does not impair the obligation of a contract any more 
 than the death of a private person impairs the obligation of his contract. 
 This doctrine was based upon two grounds: First, the obligation survives, 
 and the creditors may enforce their claims against any property belonging 
 to the corporation which has not passed into the hand of hona fide pur- 
 chasers ; second, every creditor is presumed to contract with reference to a 
 possibUity of a dissolution of the corporate body. Mumma v. Potomac 
 Company (holding that on sei. fa. a judgment could not be revived, or costs 
 adjudged, against a corporation legislatively annulled), 8 Pet. (U. S.) 381, 
 1834. In the case of the town of Port Gibson v. Moore, 13 Sm. & Marsh. 
 157, 1849, it was held, indeed, that the repeal of the charter of an indebted 
 municipal <S)rporation dissolved it ; that stuih dissolution emtinguisTied debts 
 to and from the corporation, and that a subsequent act re-incorporating the 
 place did not make it liable for a debt existing anterior to the act repealing 
 its charter. The court overlooked the constitutional provision protecting 
 contracts, and the case as to the effect of a dissolution upon the rights of 
 creditors seems to conflict with those above cited. See further, as to ex- 
 tinguishment of debts by dissolution of corporation : Mallory «. Mallett, 6 
 Jones Eq. 345 ; Hopkins v. Whitesides, 1 Head (Tenn.) 31 ; Bank v. Lock- 
 wood, 3 Harring. (Del.) 8; Robinson «. Lane, 19 Geo. 337; Muscatine 
 Turnverein v. Funck, 18 Iowa, 469 ; Owen ». Smith, 81 Barb. 641 ; Welch 
 v. Ste. Genevieve, 1 Dillon C. C. 130; post, chap. XTV. 
 
 ' Ante, sec. 53, and cases cited; post, chap. "VUI. and see ante, chap. IV., 
 where the extent of the legislative authority over municipal corporations is 
 considered. 
 
 ' Rex V. Passmore, 3 Term R. 119, 247; Regina v. Bewdley, 1 P. Wms. 
 907 ; Colchester i Brooke, 7 Queen's Bench, 383 ; Colch ster v. Seaber, 3 
 
240 MUNICIPAL CORPORATIONS. [Ch. VII. 
 
 Burr. 1866 ; Grant on Corporations, 304 and note ; 3 Kyd, 516. Whether 
 a statute or legislative charter will operate to revive or continue an old, or 
 to create a new and distinct corporation, depends upon the intention of the 
 legislature. Ante, chap. V. ; Bellows ». Bank, &c., 2 Mason C. 0. 43, pm- 
 8tgry, J. ; Angell & Ames, sec. 780 ; Grant on Corporations, 304, 305 ; Hoff- 
 man V. Van Nostrand, 42 Barb. 174 ; Girard ®. Philadelphia, 7 "Wall. 1 ; 
 Olney ®. Harvey, 50 111. 453, 1869. 
 
Ch. Vm.] CORPOEATE NAME. 241 
 
 CHAPTER VIIL 
 
 CoEPOEATB Name, Bottwdabies, ahd Seaz. 
 
 Corporate Name. 
 
 % 117. Every corporation must have a name. This is 
 essential to distinguish it from other corporations. In Eng- 
 land, before the Municipal Corporations Act of 5 and 6 
 WUl. IV. chap. LXXVI. 1835,' such corporations obtained 
 their name by having it expressed in their charter (whether 
 royal or parliamentary), or by usage or by implication." If 
 a particular name be given to a corporation in its charter, 
 the corporation can no more change it at its pleasure than 2k 
 man can at pleasure change his baptismal name. If no 
 name be given to a corporation by its charter or by statute,, 
 it may obtain one by implication. Where a corporation. 
 exists by prescription, it may have more than one name, 
 but the names, to be recognized as valid, must be prescrip- 
 tive, and cannot be acquired by usage within the time of 
 memory. It has been decided, in England, that a corpora- 
 tion may have one name by prescription and another by 
 grant ; but it is said that the same corporation cannot, at the 
 same time, have two different names by different grants, for 
 the name in the last grant will take the place of the other." 
 
 § 118. But the Municipal Corporations Act, just men- 
 tioned, which changed the corpdrate constitution of the 
 cities, towns, and boroughs of England and Wales, and re- 
 
 ■ Ante, sec. 16, and note. 
 
 ' Glover, 52, 63; Willc. 35; Grant, 50; ante, sec. 81. As to mage, see, 
 ante, chap. V. sec. 56. 
 
 • Knight e. Wells, 1 Ld. Raym. 80; Physicians v. Salmon, 3 Salk. 102; 
 Com. Dig. Pranch. F. 9; per Holt, 1 Salk. 191; 1 Str. 614; Smith ». Rail- 
 road Company, 30 Ala. 650, 1857. See, also. All Saints Church v. Lovett, 
 1 Hall (N. T.) 191'; Manufacturing Company v. Davis, 14 Johns. 238; 
 Middlesex, &c. v. Davis, 3 Md. 133; Trustees v. Peaslee, 15 N. H. 317; 
 Society, &c. v. Young, 2 N. H. 310. , 
 
 16 
 
3.13 MUNICIPAL CORPORATIONS. [CH. Vin. 
 
 duced them to an uniform model, made this provision as 
 the name of the corporation, under the new act : " Said 
 body, or reputed body, corporate shall take and bear the 
 name of the mayor, aldermen, and burgesses of such 
 borough, and by that name shall have perpetual succession, 
 and shaU be capable, in lavs^, by the council hereinafter 
 mentioned of such borough, to do and suffer all acts which 
 now lawfully they and their successors may do and suffer, 
 by any name or title of incorporation, so far as not altered 
 or annulled by the provisions of this act.'" It is settled by 
 the decisions under this act that the true or proper corporate 
 name for "boroughs mentioned in it is "mayor, aldermen, 
 
 and burgesses of the borough of ," and (under the 
 
 interpretation clause,.sec. 142 of the act), for cities, " mayor, 
 
 aldermen, and citizens of the city of .'" It may also 
 
 be here observed that the courts have determined that, 
 though this act changed the name and made new and im- 
 portant alterations in the constitution of the corporations, 
 yet that its effect was not in any case to create a new corpo- 
 ration, but to continue the old, with all their rights, privi- 
 leges, and franchises, except so far as inconsistent with the 
 provisions of the act.' But, the name mentioned in the act 
 would doubtless govern, and by that they would have to 
 sue and be sued. 
 
 § 119. Charters granted by legislative enactment, in this 
 country, almost invariably prescribe the name of the corpo- 
 rate body thus: "The inhabitants of the city or town of 
 
 are hereby constituted a body politic and corporate, 
 
 by the name and style of 'city of ,' or 'town of 
 
 .' "* So the general municipal incorporation acts 
 
 • 5 and 6 Will. IV. chap. LXXVI. sec. 6; ante, sec. 16, and note. 
 
 » Attorney General 0. Corporation of 'Worcester, 2 Phillips, 3; Corpora- 
 tion of Rochester B. Lee, 15 Sim. 376; Grant, 343; Rawlinson, 13. 
 
 ' Corporation of Ludlow «. Tyler, 7 Car. & P. 587 ; Attorney General v. 
 Wilson, 9 Sim. 30, 48; Attorney General u. Kerr, 3 Beav. 420,429; Attor- 
 ney General ». Corporation of Leicester, 9 Beav. 46 ; Doe, &c. v. Norton, 11 
 M. & W. 913, 928. Pa/rJce, B., there said, " though the name and style of 
 the corporation, and the mode of electing members were ^hanged, the 
 dentity of the body itself was not affected." Ante, chap. Vn. sec. 116. 
 
 * Ante, sec. 19. 
 
Ch. Vin.] CORPORATE NAME. 243 
 
 usually contain a provision to the eflfecttliat "cities and 
 towns organized or to be organized thereunder, are declared 
 to be bodies politic and corporate, under the name and style 
 
 of the city of , or town of , as the case may be'," 
 
 &c. Where such an act authorized any existing town or 
 city to adopt its provisions in place of its special charter, 
 and was silent as to the corporate name after the change 
 was made, it was held that the former name was retained.' 
 
 § 120. Where a name is given to a municipal corpora- 
 tion by charter or statute, this cannot be changed by the 
 act of the corporation." But, in this country, general 
 statutes are not unfrequent, authorizing the creation of 
 quasi corporations, without making it necessary to desig- 
 nate the name by which a particular district shall be called ; 
 in such case it may acquire a name hy reputation, and sue 
 and be sued by such name.' 
 
 § 121. A misnomer, or variation from the precise name 
 of the corporation, in a grant or obligaUon by or to it, is 
 not material, if the identity of the corporation is unmistak- 
 able, either from the face of the instrument or from the 
 averments and proof.* 
 
 ' Johnson e. Indianapolis, 16 Ind. 337, 1861. Corporate name of the city 
 not judicially noticed. It. Ante, sec. 20. 
 
 ' Willcock, 34, 37, 38 ; Regina v. Registrar Joint Stock Company, 10 Q. 
 B. 889. See Episcopal, &c. Society v. Episcopal Church, 1 Pick. 373. 
 Change of name does not necessarily involve a change of identity. Girard 
 V. Philadelphia, 7 Wall. 1. Ante, chap. YII. sec. 116. 
 
 ' School District v. Blakeslee, 13 Conn. 337, 1839. As to qvmi corpora- 
 tions, ante, sec. 10, and note ; post, chapll^r on Actions. 
 
 * Inhabitants v. String, 5 Halst. (IT. J.) 333, 1839; Kentucky Seminary 
 e. Wallace, 15 B. Men. 35, 1854; New York Conference v. Olarkson, 4 Halst. 
 Ch. 541, 1851 ; Angell & Ames, sec. 185 ; Pendleton v. Bank of Kentucky, 1 
 Mon. 177; Med way Cotton Manufacturing Company «. Adams, 10 Mass. 360; 
 People v. Love, 19 Cal. 676; African Society b. Varick, 13 Johns. 38; Wool- 
 rich V. Forrest, 1 Pa. 115 ; Bower v. State Bank, 5 Ark. 234 ; Pierce a. 
 Somerworth, 10 N. H. 369; Pittsburgh v. Craft, 1 Pitts. (Pa.) 158, 1871; 
 Douglas e. Branch Bank, &c., 19 Ala. 659. 
 
 " The general rule to be collected from the cases is," says Chancellor 
 Kent, "that a variation from the precise name of the corporation, when the 
 true name is necessarily to be collected from the instrument, or ia shown by 
 
244 MUNICIPAL CORPOBATIONS. [Ca. VHI. 
 
 § 122. "Where the intention of the testator is clear, a 
 mistake in the name or description of the object of his 
 bounty will not make the devise void. This general prin- 
 ciple is applicable to all corporations, private and public. 
 But the intention must be so clear as to remove all reasonable 
 doubt as to the corporation meant. This rule may be 
 illustrated by a few examples. Thas, a devise to a college 
 by its common name, though not t^ie true corporate name, 
 is good.' So, where the devisees were called by their popu- 
 lar name, " The South Parish in Sutton,''^ their legal name 
 being, " The ^«r*^ Parish in Sutton," the devise was sus- 
 tained.' So, also, the "Mayor, Juriats, and Commonalty of 
 the Town of Rye," that being the corporate name, were 
 held entitled to lands by a devise to " The Right Worship- 
 ful the Mayor, Jurats, and Town Qouncil of the Town of 
 Rye," although there was no town council in the town, and 
 although the court admitted the proposition of counsel 
 against the will, that if the "intent appears to give to a part 
 of the corporation, although that intent fails of effect, the 
 whole corporation cannot take."' So, also, a devise to the 
 Mayor, Chamherlain, and Cfovernors, is valid to a corpora- 
 proper averments, will not invalidate a grant by or to a corporation, or a 
 contract with it, and the modern cases show an increased liberality on this 
 subject." 3 Kent Com. 393; approved, St. Louis Hospital v. Williams, Ad- 
 ministrator, 19 Mo. 609, 1854. "We adopt the more reasonable rule laid 
 down by Mr. Eyd (Corp. vol. I. pp. 386, 288), that the variance must be 
 materially different, in substance, to injure." Per (7«ri(M», People «. Runkle, 
 
 9 Johns. 147, 157. 
 
 "I take the law of the present day to be, that a departure from the 
 strict style of the corporation will not avoid its contracts, if it substantially 
 appear that the particular corporation was intended, and that a latent am- 
 biguity may, under proper averments, be explained by parol evidence, in 
 this as in other cases, to show the iiftention." Per &ibson, J., in President, 
 &c, s. Myers, 6 Serg. & Eawle, 13; S. P. Milford, &c. Company v. Brush, 
 
 10 Ohio, 111. 
 
 When an act of parliament makes a grant to a corporation, it takes effect 
 though the true corporate name be not used, provided the corporation in- 
 tended be sufficiently identified or described. 1 Kyd, 356 ; Chancellor of 
 Oxford's Case, 10 Co. 44, 57 6. 
 
 ' Chancellor of Oxford's Case, 10 Co. 87 5. 
 
 ' First Parish in Sutton v. Cole, 3 Pick. 333, 1825, and, cases there cited, 
 
 " Attorney General o. Mayor of Rye, 7 Taunton, 546 ; 3 Bng. Com. Law, 
 ai3 1817. 
 
Ch. mi.] CORPOEATE NAME. 245 
 
 tion whose true name is Mayor, Citizens, and Commonalty.^ 
 So, a legacy may be given to a corporation either by its cor- 
 porate name or by a description which clearly distinguishes 
 and identifies the legatee." 
 
 • 
 
 § 123. Where the name of the corporation is expressly 
 defined by charter or statute, it is usually provided in terms 
 that by sucTi name it may sue and he sued. In such case 
 the true corporate name should be used both in suits by and 
 against the corporation. A name in a grant or obligation to 
 or by a corporation may be sufficient to enable the corpora- 
 tion to enjoy or to make it liable, which would not be suffi- 
 cent in an action by or against it." If the name of a corpo- 
 ration is lawfully changed, not the identity of the corpora- 
 tion itself, suit should, in general, unless provision be 
 otherwise made, be in the new name.* If a note, bond, or 
 
 ' Owen, 35 (14 Eliz.), "The devise held good hySyer, Weston, and Man- 
 wood, for it shall 'be taken according to the intent of the deviipr." See, 
 also, Connden v. Gierke, Hobart, 32 ; •Croydon Hospital ». Parley, 6 Taun- 
 ton, 467; 1 English Common Law, 457, 1816, where OMs, C. J., justly 
 condemns the absurd nicety of many of the decisions from the reign of Ed- 
 ward VI. to the end of James I. on the subject of the names and description 
 of corporate bodies. 
 
 * New York Institute v. How, 10 N. Y. (6 Seld.) 84, 1854. In this case 
 the plaintiff whose corporate name was, " The New York Institution for 
 the Blind," was decided to be entitled to a legacy given to the " Trustees of 
 the Institution for the Maintenance and Instruction of the Indigent Blind, " 
 there being no other institution in the city of New York for the blind. See, 
 also, Vansant v. Roberts, 3 Md. 119 ; Preachers' Aid Society, 45 Maine, 553 ; 
 Chapin v. School District, &c., 35 N. H. 445 ; Minot v. Boston Asylum, 7 
 Met. 416. Parol evidence may, in proper cases, be received to identify the 
 corporation intended. Trustees v. Peaslee, 15 N. H. 317; Bodman v. 
 American Tract Society, 9 Allen, 447. 
 
 ' Cambridge University «. Crofts, 10 Mod. 808; 1 Kyd, 253; 'WiUc. 37; 
 Brittain ». Newland, 3 Dev. & Bat. (North Oar.) 363 ; Insane Asylum v. Hig- 
 gins, 15 m. 185; Berks Co., &c. v. Myers, 6 Serg. & Eawle (Pa.) 13; Clark 
 «. Potter Co., 1 Barr (Pa.) 163; Porter ®. Blakely, 1 Boot (Conn.) 440; 
 Kentucky Seminary v. Wallace, 15 B. Mon. 85 ; Romeo v. Chapman, 3 Mich. 
 179. 
 
 'Mayor, &c. of Colchester, 8 Burr. 1866; Regina «. Ipswich, 3 Ld. 
 Raym. 1382, 1338; Angell & Ames, sec. 644; Glover, 63. Mr. Kyd says: 
 " Where a corporation becomes liable to any duty, and then its name is 
 changed, the torit brought against it should be in the new name." 1 Corp. 
 888. On a merger, by statute, of a town into a eity corporation, it was pro- 
 
246 MUNICIPAL COKPOKATIONS. fOK, VIIL 
 
 other promise be made to a corporation, by a name differing 
 from the corporate name, the corporation may sue in its true 
 name, and allege that it is the party to whom the promise 
 or obligation was made.' 
 
 • 
 
 Corporate Bovmdaries. 
 
 § 124. Since the leading object of an American muni- 
 cipal corporation is to invest the ilihabitants of a defined 
 locality or place with a corporate existence chiefly for the 
 purposes of local government, it is obvious that the geo- 
 graphical limits or boundaries of the corporation ougM to 
 'be defined and certain. These boundaries are usually de- 
 scribed in the charter or constituent act, or a method is pre- 
 scribed therein, by which they may be ascertained and set 
 tied. Because residence within the corporation confers 
 rights and imposes duties upon the residents, and the local 
 jurisdi^lion of the incorporated place is, in most cases, con 
 fined to the limits of the corporation, it is necessary that 
 these limits be definitely fixed.' They are established by 
 
 vided that aU of the books, papers, moneys, and eflFeots of the former 
 should vest in the latter. Held, that a suit on a bond made to a town 
 before the transfer could not, afterwards, be instituted in the name of the 
 town, but should be brought in the corporate name of the city. Fort 
 Wsyne ®. Jackson, 7 Blackf. (Ind.) 36, 1843. 
 
 ' 10 Co. 135 b; 1 Kyd, 387; African Society s. Varick, 18 Johns. 88, 
 1816; Trustees «. Eeneau, 3 Swan (Tenn.), 94, 1853; Fort Wayne «. Jack- 
 son, 7 Blackf. (Ind.) 36, 1843. An allegation that the defendants acknowl- 
 edged themselves to be bound unto the plaintiffs, ly the deacripiion, &c., is 
 equivalent to such an averment. 13 Johns. 38, mipra. 
 
 ' Cutting «. Stone, 7 Vt. 471 ; Gray ». Sheldon, 8 lb. 403 ; Pierce ». Car- 
 penter, 10 JS. 480. As to boundaries generally, and construction of acts 
 relating thereto, see Hamilton ». McNeil, 13 Grratt. (Va.) 389 ; Raab ®. Mary- 
 land, 7 Md. 483; Green v. Cheek, 5 Ind. 105; People v. Carpenter, 24 
 N, Y. 86; Elmendorf ». Mayor, &c., 35 "Wend. 693. Post, sees. 433, 497. 
 
 The following fiases relate to questions which have arisen with respect 
 to places bounded on risers. An act extending the bounds of a town over 
 the adjacent navigable waters does not thereby grant to the town the land 
 covered by the water, and consequently confers no right to make rules to 
 regulate the use of such land, although such an act will bring the territory 
 within the limits of the town for the purpose of civil and criminal jurisdic- 
 tion. Palmer. ». Hicks, 6 Johns. 183, 1810. 
 
 In Mw Hmnpshire, towns bounded by or on rivers not navigable, or by 
 
Ch. Vin.] JDORPORATE BOUNDARIES. 247 
 
 legislative authority. The power to incorporate a place 
 necessarily includes the power to fix and. change its boun- 
 daries. 
 
 § 125. There cannot he, at the same time, within the 
 same territory, two distinct municipal corporations, exer- 
 cising the same powers, jurisdictions, and privileges.' 
 
 lines up and down the river, extend to the centre of ihe rker, and this prin- 
 ciple is held to apply to the great streams, the Connecticut and the Herri- 
 mack. State V. Canterbury, 8 Fost. (N. H.) 195, 1854 ; State v. Gilmanton, 
 14 N. H. 467. See, also. Cold Springs, &e. v. Tolland, 9 Cush. 493. 
 
 In Oonnectieut, towns bounded on rivers, in some instances, take the 
 land on each side of the river, in which case the whole river is within the 
 jurisdiction of the town. In other instances, where towns are bounded on 
 rivers, the jurisdiction thereof is construed, (Without any express provision 
 to that effect, and in virtue of ancient usage to that effect, to extend to 
 the centre of the stream. Opposite towns have each political and civil 
 jurisdiction to the centre, though the charter limits extend only to the 
 stream, or margin or channel thereof. Pratt «. State (assult on officer on 
 the river Connecticut), 5 Conn. 388, 1834; Hayden ®. Noyes (oyster fishery 
 on the Connecticut river), lb. 391, 395. Soamer, C. J. (Ih. 395), remarks: 
 *' Every part of the Connecticut river, so far as it relates to jurisdiction, is 
 within some town in the state ; or these waters would be a sanctuary for 
 debtors or criminals. Such has been the invariable usage." 
 
 The jurisdiction of Brooklyn, for police purposes, extends to low water 
 line, whether formed naturally or artificially. Furman Street, 17 Wend. 
 649, 661. See Udall ®. Trustees, 19 Johns. 175, lb. 179, as to boundary of 
 Ifew TorTc city. By statute, the bounds of Albany extend to the middle of 
 the Hudson river. 9 Wend. 603. Eastern boundary line of St. Louis was 
 defined by the charter to be the Mississipi river, and it was held to extend 
 to the middle of the stream, and not simply to the bank. Jones i). Soulard, 
 24 How. 41, 1860. 
 
 Where the riparian proprietor only owns to high water mark, and all be- 
 low belongs to the state, a city cannot tax lots covered by water beyond 
 high water mark. State v. Jersey City, 1 Dutch. (N. J.) 525 ; lb. 530. 
 
 Statute duty as to bridges of adjacent towns bounding.on a river running 
 between them. Brookline v. Westminster, 4 Vt. 224 ; Granby «. Thurston, 
 23 Conn. 416. 
 
 The same conBtruetion that is given to grants is given to statutes which 
 prescribe the boundary of incorporated territories. Thus, where a stream 
 not navigable is made the boundary, the centre of the stream is the true 
 line. Cold Springs, &c. v. Tolland, 9 Cush. 492, 1852 (action lor defective 
 bridge); Inhabitants of Ipwick, 13 Pick. 431. 
 
 ' "Willc. on Corp. 27 ; Patterson ». Society, &c., 4 Zabriskie (N. J.) 385, 
 899, per Orem, C. J., 1854 ; Rex v. Passmore, 3 Term R. 243 ; Rex v. Amery, 
 2 Bro. P. C. 336 ; Grant on Corp. 18. Where the boundary line of a cor 
 
348 MUNICIPAL CORPORATIONB. [Oh. VHI. 
 
 § 126. Not only may the legislature originally fix the 
 limits of the corporation, but it may, unless specially re- 
 strained in the constitution, subsequently annex, or au- 
 thorize the annexation of, contiguous or other territory, and 
 this without the consent, and even against the remonstrance, 
 of the majority of the persons residing in the corporation or 
 on the annexed territory. And it is no constitutional ob- 
 jection to the exercise of this power of compulsory annexa- 
 tion, that the property thus brot^ht within the corporate 
 limits will be subject to taxation to discharge a pre-existing 
 municipal indebtedness, since this is a matter which, in the 
 absence of special constitutioi^al restriction, belongs wholly 
 to the legislature to determine.' 
 
 poration was vague and indefinite, the practical interpretation which had 
 been given to the statute by the citizens of the disputed distriet in exer- 
 cising municipal privileges,' such as voting, &c. was adopted by the court. 
 Milne v. Mayor, &c., 13 La. 69, 1838. See, also, Hamilton v. McNeil, 13 
 Q-ratt. (Va.) 389, 1856. Post, sec. 353, n. Boundaries may be defined by 
 long use, confirmed by a legislative recognition. People «. Famham, 35 HI. 
 563. If a dwelling house is divided by the boundary line between two 
 towns, that portion of the house which the occupant mainly and substan- 
 tially makes his home (as by sleeping, eating, &c.) fixes his residence, and he 
 cannot elect to reside and be taxed in the other town. Cheeneiy e, Wal- 
 tham, 9 Gush. 337. 
 
 ' Blanchard v. Bissell, 11 Ohio St. 96, 1860, defining contiguity and con- 
 struing statute authorizing county commissioners to annex ; following and 
 approving Powers «. Wooti County, 8 Ohio St. 385, 1858. See, also. Lay- 
 ton 9. New Orleans, 13 La. An. 515, 1857; Amoult v. New Orleans, 11 75. 
 54 ; Ch'eany v. Hooser, 9 B. Mon. 330 ; Gorham v. Springfle'ld, 31 Maine, 
 59; Morfordc. Unger, 8 Iowa, 83, 1859; St. Louisa. Russell, 9 Mo. 503, 
 1845'; St. Louis s.' Allen, 13 Mo. 400, 1850; Smith v. McCarthy, 56 Pa.. St. 
 359 ; Chandler «. Boston, Supreme Court, Mass., 1873, not yet reported ; 
 Railroad Company v. Spearman, 13 Iowa, 113; Wade v. Richmond, 18 
 Gratt. (Va.) 583, 1868 ; Norris a. Mayor, &c., 1 Swan (Tenn.) 164 ; Elston 
 B. Crawf ordsville, 30 Ind. 373 ; Edmunds «. Gookins, Ih. 477 ; Girard o. 
 Philadelphia, 7 Wall. 1, 1868 ; Opinion of Justices, 6 Oush. 580 ; Warren 
 V. Charlestown, 3 Gray, 104. "It would require," says Swan, J., in Powers 
 V. Wood County, 8 Ohio St. 385, 390, "a very artificial and unsound mode 
 of reasoning to hold that territory could not be annexed to a town which 
 ■ owed debts, until the owners of such territory were paid a compensation in 
 money for a proportional part of such debts, on the ground that the prop- 
 erty annexed was condemned for public use. It is not to be presumed that 
 a municipal corporation has contracted a debt without being correspond- 
 ingly benefited." Ante, chap. IV. 
 
 It is held in Pennsylvania that, under the terms of the act of the legis- 
 
Oh. Vm.] CORPORATE BOUNDARIES. 249 
 
 § 127. In connectioii with tlie power of the legislature 
 to create corporations and determine their territorial extent, 
 reference may be made to the dimsion of towns or publio 
 corporations by legislative act or authority. There is no 
 restriction on the general power, unless it be found in the 
 constitution of the state.' In case of division, the legislature 
 may, as we have already seen, apportion the burden be- 
 tween the two, and determine the proportion to be borne by 
 each.' In Connecticut, " the legislature," says the Supreme 
 Court, " have immemoriaUy exercised the power of dividing 
 towns at its pleasure, and, upon such division, apportioning 
 
 latnre anthorizing the incorporation of villages, the boundaries cannot be 
 extended so as to include a large body of farm lands ; but the district to be 
 incorporated should be restricted by the courts in which the proceeding is 
 had, so as to include no more than the village itself and its proper territory. 
 Borough of Little Meadows, 35 Pa. St. 335, 1860; Devore's Appeal^ 56 Pa. 
 St. 163 ; Blooming Valley, Ih. 66 ; and see chapter on Taxation, post, sees. 
 633, 634. 
 
 In Indiana, under act of June 18, 1852, lots adjoining a city, which are 
 laid off, platted, and recorded, may be included within the city limits by 
 resolution of the common council. Contiguous territory not thus laid off, 
 &c., can only be annexed by petition to the board of county commissioners. 
 Jeffersonville o. Weems, 5 Ind. (Porter) 547, 1854. 
 
 Effect of extension of corporate limits on homestead right, where different 
 provisions are made for country and town homesteads. Taylor ®. Boulware, 
 17 Texas, 74 ; Pinley v. Dietrick, 12 Iowa, 516. 
 
 Ordinances or contracts designed to operate throughout the city at large, 
 extend to and operate within subsequent enlarged municipal limits. St, 
 Louis Gas Co. ■». St. Louis, 46 Mo. 121, 1870. 
 
 Recording town plats. JBemis v. Becker, 1 Kansas. 326 ; Mason «. Pitt, 
 21 Mo. 391; Strong «. Barling, 9 Ohio, 301. Post, sec. 491. 
 
 As to taxation, for general municipal purposes, of rural property within 
 corporate limits, and the restrictions on the right, see chapter on Taxation, 
 post, sees. 633, 634. 
 
 ' Ante, chap. IV. sees. 30, 36. 
 
 « AnU, sec. 36 et seq. ; Londonderry o. Derry, 8 N. H. 330, 1836 ; Bristol 
 e. New Chester, 3 N. H. 533 ; Sill v. Corning, 15 N. Y. 397 ; People v. 
 Draper, Ih. 533 ; Smith ». Adrian, 1 Mich. 495 ; Waring ®. Mobile, 34 Ala. 
 701; Mayor v. State, 15 Md. 376; Love v. Schenck, 13 Ire. Law, 304, 1851 ; 
 LoveB. Ramsour, II. 328,1855; Olney ». Harvey, 50 111. 453; Dunsmore's 
 Appeal, 53 Pa. St. 374 ; County Court v. County Court, 3 Bush (Ky.) 93. 
 And see, ante, chap. lY. for a general view of the extent of the legislative 
 authority over public and municipal corporations and their rights, liabili- 
 ties, property, and contracts ; and chap. VIL as to the dissolution of muni- 
 eipal corporations and its effect upon their creditors and property. 
 
350 MUNICIPAL CORPORATIONS. [Ch. Vm. 
 
 the common property and common burdens in sucli manner 
 as to it shall seem reasonable and equitable. ' ' ' Accordingly, 
 it may impose on one town, upon such division, the entire 
 expense of erecting and maintaining a bridge across a river 
 vrhich is the dividing line between the two towns." 
 
 § 128. On the division of a town or public corporation 
 possessing corporate property, into two separate towns or 
 communities, each, in the absenc^ of a different provision 
 by the legislature, w^as considered by the Supreme Court of 
 New York to be entitled to hold in severalty the public prop- 
 erty whicli fell within its limits.' In Connecticut, it is de- 
 
 ' Granby v. Thurston, 23 Conn. 416, 419, per Waite, O. J. ; Willimantic 
 Society v. School Society (division of school societies and funds), 14 Conn. 
 457 ; Hartford Bridge Company «. East Hartford (ferry franchise), 16 Conn. 
 149 ; affirmed, 10 How. (U. S.) 511, 541. Legislature cannot control an ed- 
 ucational fund raised by individual bounty and not by taxation, Plymouth 
 V. Jackson, 15 Pa. St. 44. See, also, Montpelier «. East Montpelier, 27 Vt. 
 704; 29 lb. 12. Ante, sees. 37, 47, 52, 115. 
 
 ' Granby ®. Thurston, supra. Ante, sec. 43. 
 
 The tenacity with which the people of New England cling to the popular 
 or town form of government has been before noticed (ante, sees. 11, 12); and 
 the Constitution of Massachusetts in the second amendment accepted in 
 1821 contains the provision that the legislature " shall have full power and 
 authority to erect and constitute municipal or city governments in any cor- 
 porate town or towns in this commonwealth, .... promded, that no 
 such government shall be erected or constituted in any town not contain- 
 ing 12, 000 inhabitants, nor unless it be with the consent and on the appli- 
 cation of a majority of the inhabitants of such town present and voting 
 thereon at a meeting duly warned and holden for that purpose." On 
 May 16, 1863, the, legislature, without any application by a majority of 
 the inhabitants of the town of BrookHne, which contained a population 
 of about 6,500, annexed it to the city of Boston, the act to take effect 
 if accepted by a majority of voters voting at meetings to be held in 
 October, 1873. In the case of Chandler v. Boston and BrookUne, now 
 (June,- 1873) pending before the Supreme Judicial Court of Massachusetts, 
 the question is presented whether an entire town with less than 12,000 
 inhabitants can be annexed to a city, and also whether a premovs appTAeor 
 Uon of a majority of the inhabitants of the town is not essential to the 
 erection or constitution of a city government therein or over the inhabitants 
 thereof. See opinion of Justices, 6 Cush. 580 ; Warren b. Charlestown, 3 
 Gray, 104, as to general power of the legislature to change the boundaries 
 of towns and cities. 
 
 ° North Hempstead a. Hempstead, 2 Wend. 109, 1828. "Suppose," saya 
 Savage, C. J., delivering the opinion of the court in this case, "the state to 
 
CH.yni.] CORPOEATE BOUKDAEIES. 251 
 
 clared to be " well settled that when part of the inhabitants 
 and territory of an older town are erected into a new cor- 
 poration, the old town retains all of the property, rights, 
 and privileges formerly belonging to it, and is subject to all 
 its former duties and liabilities, at least as it regards prop- 
 erty which has no fixed location in the new town, as lands, . 
 buildings, &c. ;" accordingly, " upon the division of Hart- 
 ford, no part of the ferry franchise would pass to the new 
 town of East Hartford, except by virtue of a legal provision 
 to that effect.'" So, in Massachusetts, it has been held that 
 if ia new corporation is created out of the territory of an 
 old corporation, or if part of its territory or inhabitants 
 is annexed to another corporation, unless some provision 
 is made in the act respecting the property and existing lia- 
 bilities of the old corporation, the latter will be entitled to all 
 the property, and be solely answerable for all the liabilities. 
 
 § 129. But upon the division of the old corporation, 
 and the creation of a new corporation out of part of its in- 
 
 be divided into two states, without some special agreement, each would 
 own the public property within its limits. So of counties — ^the. piiblio 
 buildings remain the property of the old county ; yet public buildings are 
 as much public property as public lands. So as to the plains, meadows, and 
 marshes which are the subject of this suit. A bill filed by a new county 
 for the partition of the goal and court-house, which had been common 
 property, would be the same in principle as the bill in this suit. Would 
 not such a suit be considered preposterous? Suppose a religious corpora- 
 tion, possessed of a church and parsonage; it becomes expedient to erect 
 part into a new corporation; would not the old corporation retain the 
 property, unless an agreement was made as to the partition of it ?" 3 Wend. 
 109, 135. Incorporation of a part of a town into a eity, held not to divest 
 the title of the town to a tract of land owned by it in fee simple, "in trust, 
 for the use of the town, forever." Milwaukee v. Milwaukee, 13 Wis. 93. 
 
 ■ Per Church, J., in Hartford Bridge v. East Hartford, 16 Conn. 149, 171, 
 1844; affirmed by Supreme Court of the United States, 10 How. (U. S.) 511, 
 641. Approving Windham ». Portland, 8 Mass. 884 ; Hampshire v. Franklin, 
 16 Mass. 76 ; North Hempstead v Hempstead, 3 Wend. 109. Ante, sec. 9. 
 
 " Windham v. Portland, 4 Mass. 384, 1808 ; Eichards v. Daggett, 4 li. 
 539 ; Hampshire v. Franklin, 16 Mass. 76, 1819 ; Bichland County®. Lawrence, 
 12 111. 1, 1850 ; Blackstone s. Taft, 4 Gray, 350, 1855 ; North Yarmouth v. 
 Skillings, 45 Maine, 133, 143, 1858; Cobb v. Kingman, 15 Mass. 197; 
 Minot «. Curtis, 7 Mass. 441, 445. Opinion of Supreme Judges, 6 Oush. 
 575; II. 578. 
 
263 MUNICIPAL CORPORATIONS. [Ch. Vm, 
 
 habitants and territory, or upon the annexation of part to 
 another corporation, the legislatv/re may provide for an 
 equitable appropriation or division of the property, and 
 impose upon the new corporation, or upon the people and 
 territory thus disannexed, the obligation to pay an equitable 
 proportion of the corporate debts." The charters and con- 
 
 ' Gorham v. Springfield, 21 Maine 61; North Yarmouth «. Skillings, 45 
 Maine, 133, 1858; Brewster ®. Harwic^, 4 Mass 378; Ih. 315; 76. 384; 
 Harrison v. Bridgton, 16 Mass. 16 ; lb. 76, 1819 ; Lakin e. Ames, 10 Cush. 
 198, 1853. See School District v. Richardson, 33 Pick. 63, 1839, as to the 
 effect in Massachusetts upon the title to property of the abolition of old 
 tehool districts and the formation of new ones ; followed by School District 
 V. Tapley, 1 Allen, 49 ; but a dictum therein questioned by Hoar, J. Sim- 
 mons V. Nahant, 3 Allen, 316, as to necessity of a deed of conTeyance for 
 real estate. Tileson «. Newman, 33 Vt. 431 ; Richards «. Daggett, 4 Mass. 
 634; Waldron v. Lee, 5 Pick. 333. In Pennsylvania it was held that, on a 
 division of a township, each fraction remains liable for the whole debt due 
 by the old township ; if one pays the whole amount, it lays the foundation 
 for contribution. Plunkett Tow:nship e. Crawford, 37 Pa. St. 107, 1856. 
 See New London v. Montville, 1 Root (Conn.) 184. As to right to collect 
 taxes on such division, see Bamett Township v. Jefferson County, 9 Watts, 
 166 ; Devor v. McClintock, 9 Watts & S. 80. 
 
 As to support of poor in case of division : North Whitehall v. South 
 Whitehall, 3 Serg. & Rawle, 117; Overseers, &c. v. Overseers, &c., 3 lb. 
 423; Stillwater v. Green, 4 Halst. (N. J.) 59. 
 
 Where there has been an insufflcient legal division and organization of a 
 new district, this may be afterwards ratified and made binding. Sawyer v. 
 Williams, 35 Vt. 311; Pierce «. Carpenter, 10 Vt. 480; Alden v. Rounsville, 
 7 Met. 319. 
 
 The mode of proceeding, under the statute of New York, in' the division 
 of old and the erection of new towns, the directory nature of the statute as 
 to mode of proceeding, and the presumption in favor of the regularity of 
 the proceedings, are clearly set forth in the case of tHe People v. Carpenter, 
 24 N. Y. 86. 
 
 As illustrating the directory nature of such statutes, see Elmendorf v. 
 Mayor, 35 Wend. 693; Striker s. KeUy, 7 Hill (N. Y.) 9. But an agree- 
 ment in such division, transcending the powers of the oflScers who make it, 
 is not binding on the town. Overseers v. Same, 18 Johns. 383. Effect of 
 erection of a new out of a portion of an old county on tlie terms of officers 
 who respectively reside in the new and old portions, see People v. Morrell, 
 31 Wend. 563, 1839, and authorities cited by Oowen, J., p. 580. County 
 commissioners must, by law, reside in the county, and on the erection of a 
 new county in which their residences is included, they become residents of 
 the new county and non-residents of the old county, and cannot legally act 
 for it, unless they remove within it ; though if they continue to act without 
 such removal their, acts are valid, being officers de facto. State ». Harts- 
 horn, 17 Ohio, 135; State v. Jacobs, lb. 148. 
 
Ch. 71.] COEPORATE SEAL. 253 
 
 stituent acts of public and municipal corporations are' not, 
 as we have before seen, contracts, and they may be changed 
 at the pleasure of the legislature, subject only to the re- 
 straints of special constitutional provisions, if any there be. 
 And it is an ordinary exercise of the legislative dominion 
 over such corporations to provide for their enlargement or 
 division ; and, incidental to this, to apportion their property 
 and to direct the manner in which their debts or liabilities 
 shall be met, and by whom. The opinion has been ex- 
 pressed that the partition of the property must be made at 
 the time of the division of, or change in, the corporation, 
 since otherwise the old corporation becomes, under the rule 
 just-before stated, the sole owner of the property, and hence 
 cannot be deprived of it by a subsequent act of the legisla- 
 ture.' But, in the absence of special constitutional limita- 
 tions upon the legislature, this view cannot, perhaps, be 
 maintained, as it is inconsistent with the necessary supre- 
 macy of the legislature over all its corporate and unincor- 
 porate bodies, divisions and parts, and with several weU- 
 cousidered adjudications.' 
 
 Corporate Seal. 
 
 § 130. The charters of municipal corporations usually 
 contain a clause authorizing them to have and use a com- 
 mon seal, and to alter the same at pleasure. Without an 
 express grant it is, however, incident to every corporation 
 to adopt and use a corporate seal. The essential importance 
 which the common law anciently attached to seals, and the 
 
 ' Hampshire v. Franklin, 16 Mass. 76 ; Windham «. Portland, 4 lb. 890 ; 
 Bowdoinham «. Bichmond, 6 Grreenl. (Maine) 113, holding that subsequent 
 legislation could not change the apportionment of the debts between an 
 old town and one created from it, since such an apportionment was in the 
 nature of a contract. But see, ante, chap. lY. sec. 87, 44. 
 
 '' Layton s. New Orleans, 13 La. An. 515, 1857, cited, ante, sec. 36 ; 
 Dunsmore's Appeal, 52 Pa. St. 374. In this last case, one borough was 
 d.ivided into four, and the legislature was held to have the power afterwards 
 to provide for an equitable adjustment of the indebtedness among them all, 
 by commissioners to be appointed by a designated court, and from whose 
 determination no- appeal was allowed. As to extent of legislative control 
 over public and municipal corporations and their rights, liabilities, prop- 
 erty, and contracts, see, ante, chapter lY. and cases there cited ; Cooley 
 Const. Lim. 193, 331, 383 ; post, chapter on Taxation. 
 
254 MUNICIPAL CORPORATIONS. [Ch. VIH. 
 
 modern relaxation of the rule, are well known. Eespecting 
 seals, the same general principles apply to private and to 
 mnnicipal corporations. Thus, a corporation of the latter 
 class would doubtless be bound equally with a private 
 corporation by any seal which has been authoritatively 
 affixed to an instrument re4uiring it, though it be not the 
 seal regularly adopted.' On the other hand, it would not be 
 bound by the affixing of either tjjie regular or temporary seal 
 by a person not legally and duly authorized." So, under 
 the modern doctrine, a corporation can do an act in pais 
 by an attorney in fact, and such attorney need not neces- 
 sarily be appointed under seal.' 
 
 § 131. The seal of a private corporation attached to an 
 instrument does not prove its own authenticity ; but it 
 should be shown by evidence aliunde to be reaUy the seal 
 of the corporation.* The same doctrine is, propably, ap- 
 plicable to the seal of a municipal corporation, except 
 where changed by charter or statute, although it seems that 
 it is usual in England to allow deeds and other instruments 
 relating to real estate go to the jury when authenticated by 
 the corporate seals of London, Edinburgh, or Dublin— these 
 being corporations of great antiquity, or recognized by the 
 legislature.' The corporate seal attached to an instrument 
 
 » Bank, «fcc. v. Railroad Company, 30 Vt. 159, 1858, p&r BedfleU, C. J. ; 
 Tenney c. Lumber Company, 43 N. H. 343 ; Mill Dam Foundry v. Hovey, 
 21 Pick. 417; Porter v. Railroad Company, 37 Maine, 349; Angell & Ames 
 Corp. sec. 217; Phillips «. Coflfee, 17 111. 154; Stebbins ». Merritt, 10 Cush. 
 27 ; City Council «. Moorehead, 2 Rich. Law, 480 ; Grant on Corp. 59, and 
 cases, and note author's opinion and his doubt as to the existence of any 
 common law right to change the common seal. An impression of a corporate 
 seal stamped upon and into the substance of the paper containing the instru- 
 ment is sufficient, without wafer or wax. Hendee «. Pinkerton, 14 Allen, 881. ■ 
 
 ' Koehler v. Iron Company, 2 Black, 715, 1862 ; Bank of Inland ». Evans, 
 33 Eng. Law and Eq. 28. 
 
 " Curry ■». Bank, 8 Porter. (Ala.) 361, 1839 ; Lathiop v. Bank, 8 Dana, 
 114; Abby b. Billups, 35 Miss. 618. 
 
 * Den«. Vreelandt, 2 Halst. (N. J.) 352, 1800; Gilbert Ey. 19; Jackson 
 «. Pratt, 10 Johns. 381 ; Moises «. Thompson, 9 Term R. 303 ; City Council 
 V. Moorehead, 3 Rich. (South Car.) Law, 430; Poster e. Shaw, 7 Serg. & 
 Eawle, 163 ; II. 318; Mann e. Pentz, 2 Sandf. Ch. 267. 
 
 « PerEvrmy, 0. J., Den«. Vreelandt, 2 Halst. (N. J.) 352. 
 
Cn. Vin.l CORPORATE SEAL. 255 
 
 attested by the signatures of the proper officers, is prima 
 facie evidence that it was lawfully placed there, and that 
 the instrument is the act of the corporation.' 
 
 § 132. The modem rule is that corporations may be 
 "bowcid-hj contracts not under seal, and the circumstances 
 under which they will be bound have been stated by Story, 
 J., in terms which have been approved by the courts of 
 nearly every State in the Union. " Wherever a corporation 
 is acting within the scope of the legitimate purposes of its 
 institution, all parol contracts made by its authorized 
 agents are express promises of the corporation ; and all 
 duties imposed on them by law, and all benefits conferred 
 at their request, raise implied promises, for the enforcement 
 of which an action lies.' 
 
 ' Levering v. Mayor, 7 Humph. (Tenn.) 553, 1847 ; Abbott Corp. Digest, 
 tit. Beal, p. 735, sec. 31, and the many cases there cited ; Benedict v. Den- 
 ton, Walk. Ch. 336; Musser v. Johnson, 43 Mo. 74. 
 
 » Bank of Columbia «. Patterson, 7 Cranch (U. S.) 399, 306, 1813; Bank 
 f. Wister, 3 Pet. 318; Davenport v. Insurance Company,- 17 Iowa, 376; 
 Ring B. Johnson County, 6 Iowa, 365. See, further, chapters on Contracts 
 and Property, post, sees. 883. 750. Corporate seal affixed to the note of the 
 corporation makes it a specialty, having in this respect the same effect as 
 the seal of a natural person. Clarke «.Farmers'&c.Co.,15 Wend. 356 ; lb. 365 ; 
 Benoist «. Carondblet, 8 Mo. 350 ; Sturtevant ». Alton, 3 McLean, 393. 
 Lease held void for want of the corporate seal. Kinzie «. Chicago, 3 Scam. 
 (HI.) 188. But otherwise of an authorized agreement by an agent of a cor- 
 poration to sell lands: Legrand v. The College, 5 Munf. (Va.) 334; or au- 
 thorized assignment of a lease: Sanford v. Tremlett, 43 Mo. 384. Corpo- 
 rate seal to conveyance by county commissioners : Bestor ». Powers, 3 Gilm. 
 (HL) 136. 
 
 Further, see Index — Beal. 
 
 Mr. Broom gives an excellent view of the exceptions to the rule that 
 corporations must contract by deed, as recognized and established by the 
 modem English decisions. Broom Com. on Com. Law, 563-569. 
 
j?|f6 MUNICIPAL COKPORATIONS. [Ch. IX. 
 
 CHAPTEE IX. 
 
 MtriflOIPAL ElEOTIONS and OFflOEBS. 
 
 § 133. In considering the Creation and Constitution of 
 Municipal Corporations, we have ifow reached, in its order, 
 the subject of Munioipal Eleotiows and Ofpioees. It 
 will be treated under the following heads : — 
 
 1. Municipal Popular Elections — sees. 134-138. 
 3. Special Tribunal to Determine Election Contests for 
 Municipal Offices — sees. 139-144. 
 
 3. Power to Create and Appoint Municipal Officers — 
 sees, 145-152. 
 
 4. Oath and Official Bond— sees. 153-155. 
 
 5. Duration of Official Term— sees. 156-160. 
 
 6. Yacancies in Municipal Offices — sec. 161. 
 
 7. Refusal to Serve in Office — sec. 163. 
 
 8. Resignation of Municipal Officers — sees. 163-167. 
 
 9. Compensation of Municipal Officers — sees. 168-173. 
 
 10. Liability of the Corporation to the Officer — sec 174. 
 
 11. Liability of the Officer to the Corporation and to 
 Others— sec. 175. 
 
 12. Amotion and Disfranchisement — sees. 177-194. 
 
 Municipal Popular Elections. 
 
 § 134. Elections by the people, with exceptions in a few 
 States, are by folded or secret ballot, and not open or niva 
 voce.^ The quaUHcations of electors or voters are fixed by 
 the constitution and laws, and cannot be changed by any 
 ordinance or act of the corporation." Residence for a certain 
 
 ' Cooley Const. Urn. chap. XVII. 598, where the subject of Popular 
 Elections, the Eight to Participate therein, the Conditions Necessary to 
 the Exercise of the Right, the Manner of Voting, the Conduct and Suffi- 
 ciency of Elections are satisfactorily presented; and the rules and doctrines 
 deduced from the cases are, in general, applicable to popular municipal 
 elections. 
 
 • Petty*. Tooker, 81 N. T. 267; Commonwealth «. Woelper, 3 Serg. & 
 
Ch. IX.J MUNICIPAL POPULAR ELECTIONS. 257 
 
 period within the nmnicipality is almost invariably required 
 in express terms, as one of the qLualincations of the right to 
 vote at elections therein, and as one of the conditions of 
 eligibility to told a municipal office. Non-residents of the 
 corporation hiave, however, been held competent to be 
 elected to office when residence was not expressly required, 
 but the decisions cannot, perhaps, be said to conclnde th.e 
 point,' and, if extended to the higher offices, are hardly 
 
 Eawle, 29 ; People v. Phillips, 1 Denio, 388 ; Rex v. Spencer, 3 Burr. 1827 ; 
 Rex «. Mayor of Weymouth, 7 Mod. 371 ; Newling v. Francis, 8 Term R. 
 189; Rex v. Chitty, 5 Ad. & E. 609; Rex «. Bumstead, 2 B. & Ad. 699. 
 
 ' Municipal officers may be elected from non-residents of the corporation 
 when there is no statute or consitution prohibiting it, particularly when 
 the office to be filled is one requiring professional skill, and not representar 
 live or legislative in its character. State v. Blanchard (city surveyor), 6 La. 
 An. 515, 1851. The conclusion was reached with hesitation, but the whole 
 court concurred. lb. So in The State v. Swearingen, 12 Geo. 28, 1852, it 
 was decided where the charter of the town provided " for the election of 
 city officers by the people of the city qualified to vote,'' and was silent as to 
 requiring the officers to be residents, that a person might legally be elected 
 and qualified who was not a resident of the place. Residence as a qualifi- 
 cation for municipal office : See Commonwealth v. Jones, 12 Pa. St, 365. 
 BesidenU, who are: Cohen «. Wigfall, 8 Rich. Law, 337; 2 i6. 489; 
 Goldersleeve v. Alexander, 2 Speer (South Car.) 398. In England, by the 
 Municipal Corporations Act (sec. 9), inhabitant householders resident 
 within the borough, or within seven miles of the borough, and rated to the 
 relief of the poor, are made burgesses or citizens. Before that act was 
 passed, residence in the freeman or citizen was sometimes required, to ren- 
 der him eligible to office, although non-residents, wherever residing, might, 
 by a similar perversion of the purposes of a municipal corporation, be ad- 
 mitted to freedom or membership, unless expressly restrained by the char- 
 ter; and if residence was expressly required as a condition of eligibility, it 
 was not necessary that the officer should continue to reside in the place 
 while holding the office. Not only so, but it was held that where residence 
 was necessary as a qualification during office, it was not, by implication, 
 necessary that the person elected should have been a resident at the time 
 of the election. And when inhabitancy was requisite, it meant not merely 
 residence, but keeping a house within the place, and paying scot and lot. 
 Willcockon Munic. Corp. 188, pi. 472; II. 191, pi. 481 ; 11. 193,488; Rex ». 
 Monday, Cowp. 539; Rex v. Mallet, 3 Barnard. 408; Rex v. Cambridge, 4 
 Burr. 3008 ; Rex «. Heath, 1 Barnard. 417. These rules are of a very doubt- 
 ful application in this country, since here all of the inhabitants are mem- 
 bers of the corporation, and non-residents cannot become such. And, in 
 general, it may be said that a person is an inhabitant or resident who has 
 his domicil or home in the place ; but it is foreign to the purpose of this. 
 17 
 
258 MUNICIPAL CORPORATIONS. [Ch. IX, 
 
 consistent with the fundamental idea of municipal govern- 
 ment, 
 
 § 135. The cTioioe of a disqualified person is ineffectuaL 
 Thus, if the law requires freeholders to be chosen for certain 
 officers, the election of a person not a freeholder is void.' 
 But unless the votes for an ineligible person are expressly- 
 declared to be 'Boid, the effect (^ such a person receiving a 
 majority of the votes cast is, according to the weight of 
 American authority, and the reason of the matter (in view 
 of our mode of election, without previous binding nomina- 
 tions, by secret ballot, leaving each elector to vote for whom- 
 soever he pleases), that a new election must be held, and 
 
 work to enter into the difficult questions which have arisen with respect to 
 residency and domicil. Hinds o. Hinds, 1 Iowa, 36 ; Story Confl. Laws, 
 sec. 43 ; Putnam ®. Johnson, 10 Mass. 488 ; Thomdike v. Boston, 1 Met. 245. 
 Public officers vacate their office by permanent removal from the territorial 
 limits of the corporation. Barre" v. Greenwich, 1 Pick. 120 ; Rumsey «. 
 Campton, 16 N. H. 567; Giles «. Sehool District, 11 Post. 304. But a tem- 
 porary removal, with an intention to return, will not, of itself, have this 
 effect. Van Orsdall «. Hazard, 3 Hill (N. Y.) 243, 1842; People ®. Metro- 
 politan Police Board, 19 N. T. 201 ; Lyon v. Commonwealth, 3 Bibb (Ky.) 
 430 ; Rex ®. Exeter, Comb. 197. 
 
 " Nice questions," says Mr. Harrison (Munic. Manual for Upper Canada, 
 2d ed. 60, note), arise as to when a party can, or cannot be said to be a 
 resident of a municipality. A man cannot, within the meaning of the muni- 
 cipal laws of Canada, be said to be resident in two municipalities at the 
 the same time. A man's residence is where his home is situate — where his 
 family live. An occasional absence from his home to attend to business in 
 another municipality does not make his home less his residence. Where A. 
 had a dwelling-house at Bowmanville, where his wife and family lived, but 
 had a saw-mill and store and was postmaster in the township of Cartwright, 
 which occasioned him frequently to visit that place, and who, while there 
 used to board with one of his men in a house owned by himself, — Held, that 
 after voting in Bowmanville, he had no right to vote in Cartwright. The 
 Queen 63! reZ. Taylors. Caesar, 11 U. C. Q. B. 461. Mere colourable residence 
 is in no case sufficient. The King v. Duke of Bedford, 6 T. R. 560. Each 
 case must, to a great extent, depend on its own circumstances. As to 
 what is sufficient, see The King v. Sergeant, 5 T. R. 466 ; Bmcf s. Bruce, 2 
 B. & P. 229; The King c. Mitchell, 10 East, 511 ; "Whithorn v. Thomas,' 7 
 M. & Q. 1 ; The Queen ex rel. Forward v. Bartels, 7 U. 0. C. P. 533. 
 
 " Spear v. Robinson, 29 Maine, 531, 1849; State ». Swearingen, 12 Geo. 
 23, 1852 ; State v. Gastinel, 20 La. An. 114, 1868. 
 
Ch. IX.-; MUNICIPAL POPULAR ELECTIONS. 25& 
 
 not t||give tlie office to the qualified person having the next 
 highest number of votes.' 
 
 § 136. Where it is discretionary with the municipal au- 
 thorities whether they will hold an election or not, votes at 
 an unauthorized election are simply, nullities." Elections 
 fixed by law at a certain time and place may be legally 
 hoiden, although notice has not been published or given ; 
 but if the time be not defined by statute, and is to be fixed 
 by notice, the notice required is imperative.' Time and 
 
 » State c. Swearingen, 13 Geo, 33; State t. Giles, 1 Cliand. (Wis.) 113 ; 
 State D. Smith, 14 Wis. 497 ; Saunders v. Haynes, 13 Cal. 145 ; State c. 
 Gastinel (under charter), 30 La. An. 114; Cooley Const. Lim. 630; Com- 
 monwealth ex rel. McLaughlin «. Cluley, Sheriff, Pitts. Leg. Jour. February 
 3, 1868. But in Indiana the view is taken that, whether an election, be- 
 cause of the ineligibility of the candidate receiving the highest number of 
 ballots, is a failure, and must be held over, or whether the highest eligible 
 candidate is elected, depends upon circumstances: 1. If the candidate re- 
 ceiving the highest number of votes is ineligible, but from a cause unknown 
 to the voters, and which they were not lound to hnow — as, for example, in- 
 fancy, want of naturalization, and the like — the result is a failure, and 
 there must be another election. 3. If the voters know, or are bound to 
 know, the ineUgility of a candidate, the election is not a failure, as the 
 eligible candidate receiving the highest number of votes is legally elected. 
 3. Where the ineligibility of a candidate arises from his holding, or having 
 held, a public office, the people within the jurisdiction of such office are 
 held in law to know — are chargeable with notice of — such ineligibility, 
 and votes given for such a candidate are of no effect, and his highest eligible 
 competitor is elected. Gulick v. New, 14 Ind. 93^ 103, 1860, ^«r PerMns, J.; 
 commenting on State ». Swearingen (case of non-residency), 13 Geo, 33; 
 Opinion of Judges, 38 Maine, appendix, where a portion of the people 
 voted for a person not in being; State v. Giles, 1 Chand. (Wis.) 113. 
 
 In England, candidates are previously nominated and known, and the 
 votes are, or at least until very recently have been, open, and there are 
 cases there which decide or favor the .proposition that votes for a disquali- 
 fied person, given after notice of disqualification, are thrown away, and the 
 other candidate is elected. Grant on Corp. 303-308, and cases cited. But 
 see, as to disqualification and notice: Eegina v. Hioms,-? Ad. & E. 690; 
 Begina i>. Councilors of Derby, 7 Ad. & E. 419 ; and particularly Eegina v. 
 Mayor of Tewkesbury, Law Eep.3 Q. B.639, 1868 ; Eegina v. Ledyard, 8 Ad. 
 &E. 535; Eawlinson on Corp. (5th ed.) 64, note, and authorities. "The 
 principle of these decisions," says the London Law Times, January 35, 
 1873, " must be materially affected by secret voting." 
 
 ' Opinions of Judges, 7 Mass. 535; Same, 15 It. 537; Cooley Const. 
 Lim. 603. 
 
 • Cooley, Const. Lim. 303, and cases cited; People «. Brenham, 8 Cal 
 
260 MDOTCIPAL CORPORATIONS. 'Ch. ES. 
 
 place are generally essential, but many ot the details%s to 
 the conduct of elections are usually regarded as directory.' 
 Courts are anxious rather to sustain than to -defeat the 
 popular wiU.' 
 
 § 137. Thus, an inaccurate designation of tb'^ name of 
 the office voted for— as, for example, "Police Justice," in- 
 stead of " Police Magistrate " (the term used in the statute) 
 — wiU not render the votes invalid, where the legislative 
 prdvisions make clear the intention of the voters in thus 
 casting their ballots — to which intention effect should be 
 given.' But if a specific number of officers only can be 
 chosen — ^for example, four — ballots containing the names 
 of more than four persons for the office in question must be 
 rejected. Any other doctrine might result in giving the 
 elector two votes. There are usually two competing tickets, 
 
 477, 1851 ; People ®. Fairbury, 51 111. 149, 1869. OomputaUm of Ume of 
 noUee. Queen v. Justices, 8 Ad. & E. 173 ; Mtchell «. Foster, 9 Dowl. P. 
 C. 537. 
 
 , ' Dickey v, Hurlburt, 5 Cal. 343 ; People s. Knight (essentialneas of 
 place), 13 Mich. 434 ; Gass v. State, 84 Ind. 435, 1870. Where the legisla- 
 ture provided that the polls of the diflferent wards should be kept open 
 until 10 o'clock p. m. and they were closed at 8 o'clock, the election was set 
 aside. Pennsylvania District Election, 3 Par. (Pa.) 536; Clark's Case, 76. 
 531. Illegal mdJjoumment of election to a different plaee from the one desig- 
 nated in the notice. Commonwealth ». Commissioners, &c., 5 Rawle, 75. 
 Where an election is held on a day Bubsequent to that named in the charter, 
 the acts of officers thus elected are valid, as respects the public and third 
 persons, and cannot be collaterally inquired into. Coles County v. Allison 
 33 111. 437, distinguished from Haynes v. Washington Cbunty, 19 111. 66, 
 and approved in People «. Fairbury, 51 111. 149, 1869. Title of officers 
 elected before the legal incorporation of a place may be validated by the 
 legislature. State o. Kline, 33 Ark. 587. Post, sees. 194, 314, 716 n. 
 
 « Skerritt's Case, 3 Par. (Pa.) 516 ; Boileau's Case, 3 Par. 505 ; Carpen- 
 ter's Case, 3 Par. 537 ; Kew Orleans «. Graihle, 9 La. An. 573 ; Clifton d. 
 Cook, 7 Ala. 114; People ®. Cook, 14 Barb. 359; 8 N. T. 67. The rule as 
 therein stated is regarded by Mr. Justice Ooohy as " an eminently proper 
 one, and to furnish a very satisfactory test of what is essential, and what 
 not, in election laws." Const. Lim. 618. See, also, as to charter elections 
 and returns, ExpaHe Heath, 3 Hill (N. Y.) 42, 53; People ®. Stevens, 5 Hill, 
 616; Morgan «. Quackenbush, 33 Barb. 73. Courts will not enjoin muimvpal 
 eleetiom unless the power and right to do so plainly exist. Smith «. Mc- 
 Carthy, 56 Pa. St. 359. Post, sec. 345, note. 
 
 > People B. Matteson, 17 HI. 167, 1855. 
 
Ch. IX.] MUNICIPAL POPULAR ELECTIONB. 261 
 
 and if an elector can, in the case supposed, cast a ballot 
 containing five names, he may one of eight, and thus vote 
 (if he chooses to insert the names) for both tickets.' 
 
 § 138. Receiving illegal or improper votes will not alone 
 vitiate an election. It must be shown affirmatively, in 
 order to overturn the declared resnlt, that the wrongful 
 action changed it. This rule applies to corporation elec- 
 tions as well as others." 
 
 ' People e. Loomis, 8 "Wend. 396, 1833; People v. Seaman, 5 Denio, 409. 
 Where only one vamney exists, votes given for two persons jointly are thrown 
 away. Rex v. Mayor of Leeds, 7 Ad. & E. 963 ; and in this case it was 
 held that a third candidate chosen by a single regular vote was elected ; 
 but as to votes being thrown away, see supra. Where, by an erroneous con- 
 struction of the act, an election has been held for but one councillor, instead 
 of two, the candidate second on the poll cannot have a mandamiis to admit 
 him to the oflSce. Regina «. Hoyle, H. T. 1855, cited in Rawl. on Corp. 65, 
 note. His remedy is, by mandamus, to have a new election held for coun- 
 cillor, or (if the office be filled) by a quo wa/ranto. lb. The voting papers 
 (corresponding in function to the American ballot, except that it is to be 
 signed by the voter and openly voted) must distinguish between different 
 classes of candidates; and hence where an election of four councillors had 
 taken place on the 1st of November, three of whom were to supply ordinary 
 vacancies, and one an extraordinary vacancy, but no distinction had been 
 made between them in the notice of election, in the voting papers, or in 
 publishing the names of the persons elected, the election was irregular and 
 void. Regina b. Rowley, 3 Q. B. 143; 8. 0. in Exchequer Chamber, 6 Q. 
 B. 668. See sec. 47, Municipal Corporations Act, and also 7 Will. IV. and 
 1 Vict. chap. LXXVm. sec. 11. Patterson, J., says: " There is no objection 
 to the votes all being given on the same paper, if a proper distinction were 
 made." Regina «. Rowley, supra; and see Rex ». Winchester, 2 Ad. & E. 
 215. By the Municipal Corporations Act, sec. 32, the voting paper is re- 
 quired to contain " the Christian and surnames of the persons for whom the 
 burgess votes, with their respective places of abode, such voting paper being 
 previously signed with the name of the burgess voting and th& name of the 
 street in which the property for which he appears to be rated is situate." 
 In construction of this section, it is held that the Christian name of the per- 
 son voted for need not be written out in full ; the contraction ordinarily 
 used is sufficient. Regina v. Bradley, 3 E. & E. 634. But it seems that an 
 initial letter only would not be sufficient. lb. Though it would be in the 
 signature of the voter. Regina v. Avery, 18 Q. B. 576 ; Regina v. Tart, 1 E. 
 & E. 618. " Places of abode " held to mean places of residence, not of 
 business. Regina v. Hammond, 17 Q. B. 772; Regina ®. Deighton, 5 Q. B. 
 896; Dav. &M. 682. 
 
 ^xpaa-U Murphy, 7 Cow. 153, 1827; People, v. Cicotte, 16 Mich. 283, 
 
262 MUNICIPAL CORPORATIONS. [Ch. JX. 
 
 Special Tribunal to Decide Election Contests for Muni- 
 cipal Offices. 
 
 % 139. A constitutional provision that the judicial 
 power of the state shall be vested in a supreme and inferior 
 courts, does not disable the legislature, in creating muni- 
 cipal corporations, from providing that the city council 
 shall he the judge of the electfcn of its mayor, members, 
 and other officers, and from prohibiting the ordinary courts 
 of justice from inquiring into the validity of the determina- 
 tion of the city council.' 
 
 § 140. Where, by the charter, the councQ are author- 
 ized to provide, by ordinance, a special tribunal before 
 which contested municipal elections shall be tried, and to 
 provide the mode of procedure, it may pass such ordinance 
 after an election has been held, and authorize it to deter- 
 mine contests arising out of a previous election. After such 
 determination, quo warranto will lie against the party who 
 
 1868; First Parish «. Steames, 21 Pick. 148; Jiidkins v. Hill, 50 N. H. 140, 
 1870 ; Johnston v. Charleston, 1 Bay (8. 0.) 441, 1795. In this last case the 
 city council was specially authorized to judge of elections of corporation 
 oflBcers, and the court, respecting a contest before the council, said : " If the 
 bad votes be deducted from the highest candidate, and he still has a ma- 
 jority, his election is good ; but if, after such deduction, the next candidate 
 has an equal or greater number of votes than the other, arid it is dotibtful 
 which candidate had the greatest number of valid votes, the council should 
 send the matter back to the people." 
 
 ' Mayor, &c. v. Morgan, 7 Martin, La. (O. S.) 1 ; 9 II. (N. S.) 381, 1838 ; 
 infra, sec. 183. In Wammacks v. HoUoway, 3 Ala. 31, 1841, a shrievalty 
 contest, it was denied that it was within the constitutional power of the 
 legislature to deprive a party claiming a public office of the right to a jury 
 trial by making the summary or extra-judicial method conclusive. And to 
 this effect was the opinion of two of the judges in The People ®. Cicotte, 16 
 Mich. 383. Since elections to offices are not in the nature of contracts, 
 there does not seem to be any substantial reason, in view of the plenary 
 authority of the legislature over offices and officers, to doubt its power to 
 provide, prospectively, by a general act, the mode in which contests shall 
 be determined. See State e. Fitzgerald, 44 Mo. 435, 1869; Ewing ®. Filley, 
 43 Pa. St. 384; Commonwealth «. Leech, 44 Pa. St. 333; Cooley, Const 
 Lim. 376; 11. 633, 634, note; Smith «. New York, 37 N. T. 518; People v. 
 Mahaney, 13 Mich. 481 ; Steele «. Martin, 6 Kansas, 430, 1870. 
 
Ch. IX.] MUNICIPAL POPULAR ELECTIONS— CONTEST. 263 
 
 was unsuccessful before the local tribunal, if he continue to 
 claini and exercise the office.' 
 
 § 141. Common law courts of general and original 
 jurisdiction have the admitted power to inquire into the 
 regularity of elections, corporate and others, by quo war- 
 ranto, or an information in that nature, and, in certain 
 cases, by mandamus. It is not unusual for charters to 
 contain provisions to the eflfect that the common council or 
 governing body of the municipality " shall be the judge of 
 the qualifications," or "of the qualifications and election 
 of its own members," and of those of the other officers of 
 the corporation. What effect do provisions of this kind 
 have upon the jurisdiction of the superior courts ? The 
 answer must depend upon the language in which these pro- 
 visions are couched, viewed in the light of the general laws 
 of the state on the subjects of contested elections and quo 
 warranto. The principle is, that the jurisdiction of the 
 courts remains unless it appears with unequivocal certainty 
 that the legislature intended to take it away. Language 
 like that quoted above will not, ordinarily, have this effect, 
 but will be construed to afford a cumulative or primary 
 tribunal only, not an exclusive one. A provision that no 
 court should, take cognizance of election cases by qv^ 
 warranto, &c., would doubtless be sufficient to divest the 
 jurisdiction of the judicial tribunals. And so, perhaps, of 
 a provision that the council should have the sole, or the 
 final, power of deciding elections." 
 
 • State 0. Johnson, 17 Ark. 407, 1856 (mayoralty contest). 
 
 ' Bx parte Heath, 3 Hill (N. T.) 43, 53, and cases cited by Gowm, J., 
 who is of opinion that no mere negative words, and that nothing less than 
 express words, will oust the supervisory jurisdiction of the courts. Greer ». 
 Shackelford, Const. Rep. 643; State v. Fitzgerald, 44 Mo. 435, 1869; Com- 
 monwealth ®. McCloskey, 3 Rawle, 369 (two judges dissenting) ; Mx parte 
 Strahl, 17 Iowa, 369, 1864; State ». Funck, 17 Iowa, 365, 1864; Bateman v. 
 Megowan, 1 Met. (Ky.) 533 ; "Wammacks v. Holloway, 3 Ala. 31, 1841 (sher- 
 iffalty contest) ; Hummer v. Hummer, 8 G. Greene (Iowa), 43 ; Macklot «. 
 Davenport, 17 Iowa, 379 ; Gass v. State, 34 Ind. 434, 1870. State ». Mar- 
 low, 15 Ohio St. 114 ; post, chapters on Qim Wm-ranto, Mandamus, and Rem- 
 edies against Illegal Corporate Acts. Action of board of canvassers not 
 conclusive of the right of the party to an office, though it may deprive 
 nim, in the first instance, of a commission or certificate Quo wasrcmti 
 
264 MUNICIPAL CORPORATIONS. [Oh. ES. 
 
 § 142, Agreeably to the rule just stated, a clause in the 
 charter of a munieipal corporation, that the city council 
 "shall be the judges of the election, returns and qualifica- 
 tions of their own members, and of all other officers of the 
 corporation," was held by the Supreme Court of Delaware 
 not to oust the Superior Court of the state (invested with 
 the usual powers of the King's Bench) of its superintending 
 ' jurisdiction over corporations, and it was declared, if the 
 council should erroneously d^ide that a person duly 
 elected by the people to an office was not qualified to hold 
 it, a mandamus might issue commanding them to admit 
 him to the office.' 
 
 lies notwithstanding the determination of the board of canvasserB, on which 
 full investigation may be had. State ®. Governor, 1 Dutch. (N. J.) 331, 
 1856; State ®. The Clerk, II. 354; People v. Kilduff, 15 111. 492; Cooley 
 Const. Lim. 623, and cases cited ; Hadley v. Mayor, 33 N. Y. 608, 1865 ; 
 Anthony «. Halderman, 7 Kansas, 50, 1871. 
 
 Conformably to the views expressed in the text it has been recently de- 
 cided by the Supreme Court of Pennsylvania, that the right given to city 
 councils to be the judges of the qualification of their own members "in 
 like manner as each branch of the legislature " does not preclude the juris- 
 diction of the courts to try the question of qualification by qw> warranto, 
 though the opinion of the profession seems to be otherwise, and it was 
 otherwise held in the court below. Commonwealth v. Huhn, 1872, not yet 
 reported. 
 
 A special remedy given by statute is eumulatwe and not exclusive of the 
 ordinary jurisdiction of the courts, unless such be the manifest intention of 
 the statute. Attorney-General v. Corporation of Poole, 4 Mylne & Cr. 17, 
 overruling 2 Keen, 190. See, also, Attorney-General v. Aspinwall, 2 Mylne 
 & Cr. 613. And hence a breach of a public trust by a municipal corpora- 
 tion is held, in England, to be cognizable in chancery, notwithstanding a 
 special appeal be given in the particular matter to the lords of the treasury. 
 n. ; Parr n. Attorney-General, 801. &F. 409; Attorney-General ®. Corpora- 
 tion of Litchfield, 11 Beav. 120. See chapter on Remedies against Illegal 
 Corporate Acts, ^osi, sec. 730. 
 
 ' State «. "Wilmington, 3 Harring. (Del.) 294, 1840; S. P. State v. Fitz- 
 gerald, 44 Mo. 426, 1869. So, in Iowa, where the city charter provided that 
 the council should be "the judge of the election and qualifications of its 
 own members," but no ordinance had been passed prescribing any method 
 of trial, it was held that the mere provision in the charter did not preclude 
 a contestant from a resort to an information in -the nature of i,qiw warranto. 
 State v. Punck (mayoralty contest), 17 Iowa, 365, 1864. In a previous case, 
 '.he same court decided that under a charter making the council "judges of 
 the election, returns and qualifications of their own members," it was com- 
 petent foj the council to pass a general ordinance providing for the trial of 
 
Oh. IX.] MUNICIPAL POPTTLAR ELECTIONS. 265 
 
 § 143. Where the legislatwe intent is clear, tTiat fhe 
 action of the council in contested election cases sTtall be 
 iinal, the court will not inctuire into election frauds, sin»e 
 the council is the judge of this matter as of others pertain- 
 ing to the election ; but the courts will inquire whether, in 
 point of law, there was an office or vacancy to be filled.' 
 
 § 144. Where, by statute, the returns of all municipal 
 elections were declared to be "subject to the inquiry and 
 determination of the Court of Common Pleas upon the 
 complaint of fifteen or more voters filed in said court within 
 twenty days, and the court, in judging of such elections, 
 was directed to proceed upon the merits thereof, and deter- 
 mine finally concerning the same according to the laws of 
 the commonwealth," this was held to exclude the remedy 
 by quo warranto and all common law remedies as to matters 
 which might have been investigated in the special mode 
 prescribed by the statute. The opinion was expressed that 
 the judgment of the Common Pleas was final ; that it could 
 not be reversed by quo warranto or in any other collateral 
 manner, and that even a certiorari would enable the ap- 
 
 contested elections of city officers, and making the council the tribunal foi 
 the trial of the same, such an ordinance being consistent with the general 
 laws of the state, which, in providing special tribunals for contesting state, 
 <!ounty, and township officers, omitted to make any special provision for 
 contested elections to municipal offices. Expa/rte Strahl, 16Iowa, 369, 1864 
 (mayoralty contest). 
 
 ' Commonwealth n. Leech, 44 Pa. St. 333, 1863 ; Commonwealth v. 
 Meeser, Ih. 341. Construction of words making the number of members 
 of the council from a ward depend upon " the Mat of the taxable inhabi- 
 tants." 11.; People «. Wetherell, 14 Mich. 48 ; Tompert ». Lithgow, 1 Bush 
 (Ky.) 176, 1866. 
 
 Pending legal proceedings, the court, in favor of the officer apparently 
 entitled, enjoined the admerse claimant from attempting to take possession of 
 the office. Bwing v. Thompson, 43 Pa. St. 384, 1862; Kerr «. Trego, 47 Pa. 
 St. 16, 293, 1864. Certificate of election is the prima fade written title to 
 office, and remains so until regularly set aside or annulled. It. Post, sec. 
 313. 
 
 The council, as hoard of ■ eaneamers, cannot investigate the legality of an 
 election, but are concluded by the returns of the judges; but the council, 
 when sitting as a tribunal to judge of the election of members of their 
 body, may go behind the returns and inquire into the faet as to who is 
 elected. State ®. Rahway, 33 N. J. Law, 111, 1868. 
 
266 MUNICIPAL CORPORATIONS. FCh. IX. 
 
 pellate court to examine only the regularity of the proceed- 
 ings of the Common Pleas, but not to examine the case on 
 itg merits as disclosed in the evidence.' 
 
 > Commonwealth v. Garrigues, 38 Pa. St. 9, 1857; Commonwealth v. 
 Baxter, 35 Pa. St. g63 ; Commonwealth v. Leech, 44 Pa. St. 332 : Followed 
 and approved. State v. Marlow, 15 Ohio St. 114 ; see Ewing «. Filley, 43 Pa. 
 St. 386; Lapib v. Lynd, 44 Pa. St. 336. MT/yson, ex parte, 30 Gratt.(Va.) 10, 
 29, 1870, commenting on Commonwealth v. Garrigues, supra. Function 
 and powers of common council as election S&nvassers. Morgan «. Quacken- 
 bush, 22 Barb. 72. A city council, under authority "to canvass returns 
 and determine and declare the result " of elections to municipal offices, ex- 
 hausts its power when it has once legally canvassed the returns and declared 
 the result, and it cannot, at a subsequent meeting, make a re-canvass and 
 reverse its prior determination. Hadley v. Mayor, 33 N. T. 603, 1865. The 
 rule stated in the text, that the original or superintending jurisdiction of 
 the superior courts should not be held to be taken away by any language 
 which does not expressly, or by unequivocal implication, show this to have 
 been the legislative intention, is a salutary one, but seems, in some cases, 
 not to have been very strictly observed. In Texas, where the statute con- 
 ferred upon the County Court the power to determine contested elections of 
 county officers, and gave no right to appeal, it was considered to be the 
 policy of the statute to secure an early determination of such disputes, and 
 it was held that the judgment of the County Court could not be revised 
 either upon appeal 'or eertiora/i'i, and was final. O'Docherty o. Archer, 9 
 Texas, 295, 1853. Post, chap. XXIL 
 
 The constitution of Ohio requires the general assembly "to determine, by 
 law, before what authority, and in what manner, the trial of contested 
 elections shall be conducted," and accordingly a specific mode of contesting 
 elections in that state was provided by statute ; and this mode was held to 
 exclude the common law mode by proceedings in qiio warranto, and the re- 
 sult to bind the state as well as individuals. State v. Marlow, 15 Ohio St. 
 114, 1864. 
 
 In South Carolina it was held, where the legislature had authorized man- 
 agers of elections "to hear and determine" cases of contested elections, 
 without making any provision for an appeal, or any reference in the act to 
 proceedings by qybo warranto that their decision was, without any express 
 statutory declaration to that effect, final anc^ conclusive, and that courts had 
 no control over it. Grier «. Schackelford, 3 Brev. (South Car.) 491, 1814 
 {Sott, J., dissenting); followed in the State v. Deliesseline, 1 McCord, 
 (South Car.) 53, 1831 (two judges dissenting). See State ». Huggins, Harper 
 Law, 94, 1834. But note remarks of Evam, J., in State v. Cockrell, 2 Rich. 
 (South Car.) Law, 6, who, speaking of the subsequent act of 1839 (requiring 
 the managers to hear and determine the validity of the election, and pro- 
 viding that their " decisions shall be final "), says: " I take it to be clear 
 that the validity of an election, in all cases, must [under the act], in the 
 first instance, be decided by the court of managers duly authorized accord- 
 
Ch. IX.] CREATION AND APPOINTMENT OP OPPICERB. 267 
 
 Power to Create and Appoint Municipal Officers. 
 
 § 14B. At common law, municipal corporations may 
 appoint officers, but only such as the nature of their consti- 
 tution requires. The right of electing such officers as they 
 are authorized to have is incidental to every corporation, 
 and neecl not be conferred by charter. The power of ap- 
 pointing officers is, at common law, to be exercised by the 
 corporation at large, and not by any select body, unless it 
 is so provided in the charter'. The powers of corporate offi- 
 cers proper, at common law, are very limited, extending 
 only to the administration of the by-laws and charter regu- 
 lations of the corporation.' 
 
 § 146. In this country the charter or constitution of the 
 
 ing to law. AU questions, whether of law or fact, must be submitted to 
 this tribunal. Their decisions, on questions of fact, must necessarily be 
 final, as no appeal is given ; but I do not mean to say that their errors of 
 law may not be corrected by eerUora/ri, or such of the prerogative writs as 
 may be best suited to the case." Accordingly, where an election, within 
 the act, had not been contested before the managers, the court refused 
 leave to file an information in the nature of a quo warranto. It was after- 
 wards stated, by a distinguished judge in that state, that the scrutiny of 
 municipal elections, as an incidental power, belongs, in the first place to 
 the city council, and if they abuse that power, the correction of that abuse 
 devolves upon the courts by information in the nature of a quo warrants. 
 Per O'Neall, J., in State v. Schmierie, 5 Rich. Law (South Car.) 399, 301, . 
 1853 (§ao, Wa/r. to test validity of defendant's election as mayor of Charles- 
 ton). S. P. Johnson v. Charleston, IBay (South Car.) 441, 1795. But the 
 city council, in order to determine a contest for a municipal ofQce, cannot 
 swear the individual voters to compel them to declare for whom they voted. 
 This is an inquisitorial power unknown to the principles of our government, 
 and of dangerous tendency. lb. See, also. People v. Pease, 37 N. Y. 81 ; 
 People «. Cicotte, 16 Jlich. 383; Cooley Const. Lim. 604-606. Election 
 contests for office will not be determined on habeas corpus. Ex parte Strahl, 
 16 Iowa, 369 ; nor, in 'general, on bill in equity. Hagner v. Heyberger, 7 
 Watts & S. 104; but see Kerr r>. Trego, 47 Pa. St. 393. Post, sec. 213. 
 Hughes V. Parker, 30 N. H. 58; Cochran v. McOleary, 33 Iowa, 75, 1867, 
 and chapter on Corporate Meetings, pott. But as to county seat contest, 
 where fraud is alleged, see Brown v. Smith, 46 111. See, also, chap. XXTT . 
 
 fOSt. 
 
 •Willc. 284, pi. 598; Tb. 397, pi. 767; Tb. 398, pi. 769; Glover, 330; 
 Vintners «. Passey, 1 Burr. 337 ; Easting's Case, 1 Mod. 24; Rex v. Barnard, 
 Comb. 416. 
 
MUNICIPAL CORPOEATIGNS. [Ch. IX, 
 
 corporation usually provides with care as to all the prin- 
 cipal officers, such as mayor, aldermen, marshal, clerk, 
 treasurer, and the like, and prescribes their various duties. 
 This leaves but little necessity or room for the exercise of 
 any implied power to create other offices and appoint other 
 officers.' It is supposed, however, when not in contraven- 
 tion of the charter, that municipal corporations may, to a 
 limited extent, have an incidental right to create certain 
 minor offices of a ministerial or executive nature. Thus, if 
 power be conferred to provide for the health of the inhabit- 
 ants, this would give the corporation the right to pass ordi- 
 nances to secure this end, and the execution of such ordi- 
 nances might be committed to a health officer, although no 
 such officer be specifically .named in the organic act, if this 
 course would not conflict with any of its provisions. But 
 the power to create offices even of this character would be 
 limited to such as the nature of the duties devolved on the 
 corporation naturally and reasonably required. 
 
 The provisions of the charter as to time and mode of 
 election, the appointment, cLualifications, and duration of 
 
 ' Where it was manifest, from the whole tenor of a city charter, that it 
 was the intention of the legislature itself to specify therein all the offices, 
 and designate all the officers to be. elected or chosen, and to regulate the 
 mode of appointment, it was held that the city council could not, by virtue 
 of an inherent or implied power, create another officer, fix his term, provide 
 for his appointment, and clothe him with the powers of a municipal officer. 
 Hoboken v. Harrison, 1 Vroom (N. J.) 73, 1863. It is said, in the opinion, 
 that the power to create municipal officers should be expressly conferred. 
 In New Jeriey, pound-keepers, from a very early period, had been public 
 townsh'up officers, elected in the same way as other officers of the township. 
 Under these circumstances it was held that a municipal corporation could 
 not, without express authority therefor, establish another public pound 
 within the limits of the township, and prescribe regulations and fees vari- 
 ant from those prescribed by the general law ; and it was further held, that 
 the office of pound-keeper could not be considered as one essential to the 
 business of the corporation ; nor is a pound-keeper one of those subordi- 
 nate officers, which all municipal corporations may, as of course, appoint. 
 It was, however, admitted by the court, that where such a corporation has 
 power to do an act, it has the incidental power to appoint persons to carry 
 it into effect. White v. Tallman, 2 Dutch. (N. J.) 67, 1856. Authority to a 
 municipal corporation to appoint an officer was inferred from the frequent 
 mention of the office and its duties in the charter. People ©. Bedell, 2 Hill 
 (N. Y.) 196 ; see, also, Field v. Girard College, 54 Pa. St. 233. 
 
Ch.ix.] creation and appointment of officers. 269 
 
 the terms of officers, must be strictly observed. ' Therefore, 
 an ordinance which makes eligible those whoy by the charter, 
 are not so,' or which abridges the term of officers as fixed 
 by the charter, is unauthorized and void.' 
 
 § 147. Every municipal corporation is provided with an 
 exeautive', Jiead, usually styled the mayor. In the chapter 
 on Corporate Meetings we have pointed out the difference, 
 in some respects, between the mayor of an old corporation 
 in England and the officer known by tbat name in this 
 country. In both countries the mayor is the head officer or 
 executive magistrate of the corporation ; but with us it is 
 important to bear in mind that all his powers and duties 
 depend entirely upon the provisions of the charter or con- 
 stituent act of the corporation, and valid by-laws passed in 
 pursuance thereof, — ^and these vary, of course, in different 
 municipalities. It is usually made his duty, however, to 
 see tliat municipal ordinances are executed, and to preside 
 at corporate meetings ; and he is frequently expressly de- 
 clared to be a member o^ the council or "local legislative 
 body. Properly and primarily his duties are executive and 
 administrative, and not judicial or legislative. But judicial 
 duties are often superadded to those which properly apper- 
 tain to the office of mayor, and he is invested with the 
 authority to administer not only the ordinances of the cor- 
 poration, but also, judicially, to administer the laws of the 
 state.' 
 
 ' Rex V. Mayor of Weymouth, 7 Mod. 373; Rex «. Bumstead, 3 B.& Ad. 
 699; Rex v. Spencer, 3 Burr. 1837; Rex v. Chitty, 6 Ad. & E. 609. 
 
 « Stadler ®. Detroit, 13Mioh. 346, 1865; Vason v. Augusta, 38 Geo. 543, 
 1868. Chapter on Ordinances, post. The office of treasurer of a municipal 
 corporation is not a "civil office " within the meaning of the provision of 
 the constitution excluding the clergy from "holding any well office in this 
 state, or from being a member of the legislature." State v. Wilmington, 
 3 Earring. (Del.) 394, 1840 ; see Commonwealth v. Dallas, 3 Teates (Pa.) 
 800. " Lucrative offices," in the constitutional sense, defined to embrace 
 county recorder, commissioner, township trustee, and supervisor. Daily v. 
 State. 8 Blackf. 339; Creighton r>. Piper, 14 Ind. 183; Howard ?i. Shoemaker, 
 35 lud. 111. 
 
 ' Waldo V. Wallace, 13 Ind. 569, 1859, and growing out of it, see, also, 
 Gulicku. New, 14 11. 93, 1860; Howards. Shoemaker, 35 Ind. Ill, 1871; 
 Reynolds v. Baldwin, 1 La. An. 163, 1846; Muscatine ®. Steck, 7 Iowa, 505; 
 a io. 330; Ex pwrte Strahl, 16 Iowa, 369; Bhafer s. Mumma, 17 Md. 831; 
 
270 MUNICIPAL CORPORATIONS. [Ch. IX. 
 
 § 148. Th() office of mayor h^ long existed in Eng- 
 land,' and many of its general features have been adopted 
 
 Slater «. Wood, 9 Bosw. 15. Ante, chap. in. Morrison ®. McDonald, 31 
 Maine, 550, 1842 ; State b. Maynard, 14 III. 419 ; Commonwfealtli ». Dallas, 
 8 Yeates (Pa.) 300, 1801; Starr v. Wilmington, 3 Harring. (Del.) 294, 
 1839 ; Prell v. McDonald, 7 Kansas, 426, 1871. 
 
 Power of mayor. In his official name, to bring suit to prevent or restrain 
 violations of law by other municipal officers, declared. Genois, Mayor, &a 
 e. Lockett, 13 La. 545, 1838. But quoire ? The mayor of a city has no inci- 
 dental power to execute an a/ppeal land for the corporation ; and such a 
 bond was regarded as not even incidental to the power of taking an appeal, 
 bulrmust be authorized by the council. Baltimore c. Railroad Co., 21 Md. 
 50, 1863. A precept to collect a street assessmfent, signed by a member of 
 the council acting temporarily as president thereof, is void, when' the stat- 
 ute requires the signature of the mayor. JefEersonville v. Patterson, 32 Ind. 
 140, 1869. Injunction will lie to restrain a sale on such a precept. It. 
 See chapter on Remedies against Illegal Corporate Acts, post. 
 
 Sa to nature and extent of authority of mayors and other civil officers to 
 employ force for the prevention or suppression of mobs, riots, &c. : See Ela 
 «. Smith, 5 Gray, 121, 1855, arising out of the arrest of Anthony Bums as a 
 fugitive slave. Power of mayor to order demolition of works and buildings 
 in publio places : Henderson v. Mayor, 8 L#563. Mayor may sanction an 
 ordinance passed by a common council, whose term has expired : Blmen- 
 dorf v. Eweh, 3 N. T. Leg. Obs. 85. Notice to mayor : Nichols ». Bostoii, 98 
 Mass. 89. Police and executive power of Mayor : Shafer ». Mumma, 17 Md. 
 831 i Slater ®. Wood, 9 Bosw. 15 ; Pedrick v. Bailey, 12 Gray, 161 ; Nichols «. 
 Boston, 98 Mass. 39. Alderman acting as mayor : State s. Buflfalo, 2 Hill, 
 434. Judicial power of mayor : See Municipal Courts, post. Prell v. Mc- 
 Donald, 7 Kansas, 436; Howard*. Shoemaker, 35 Ind. Ill, 1871. Presence 
 and functions of mayor at meetings of the council : See the chapter on 
 Corporate Meetings, post. 
 
 Liability of Mayor in Upper Canada to private actions in respect to his 
 official acts: Pair v. Moore, 3 Upp. Can. C. P. 484; Moran ®. Palmer, 13 lb. 
 450, 538. Fraud of Mayor restrained and relieved against : Patterson e. 
 Bowes, 4 Grant, 170 ; lb. 489. Post, sec. 730, note. 
 
 ' History and nature of office of Mayor, consult : 4 Jacob's Law Diet. 304 
 265; 3 Toml. Law Diet. 540; 3 Bouv. 150. Spelm. Gloss. "Mayor; " Ela«. 
 Smith, 5 Gray (Mass.) 521, 1855; Achley's Case, 4 Abb. Pr. Rep. 35, 1856; 
 Cochran i>. McCleary, 23 Iowa, 75, 82, 1867; Nichols ■». Boston, 98 Mass. 39; 
 Fletcher «. Lowell, 15 Gray, 103. Ante, 6ecs. 9, 116; post, sees. 191, 198, 
 209, 365, 358. The office in England is quite ancient. In 1304 King John 
 made the bailiff of Kong's Lynn a mayor, with administrative powers. The 
 title was a common one as early as the time of Bracton. 
 
 Mr. Norton, in his valuable " Commentaries on the History, Constitution, 
 and Chartered Franchises of the City of London," says that the first speoiTu 
 grant of the mayoralty to the city of London was made by King John in • 
 
Ce IX.] CREATION AND APPOINTMEiffT OP OPFICBKS. 271 
 
 in this couutry. In a former page suggestions have been 
 made in favor of increasing its dignity and responsibility, 
 as a means of insuring more satisfactory municipal rule ; 
 but the subject is not sufficiently connected with practical 
 law to warrant more than an allusion to it in a work of this 
 character.' 
 
 § 149. The office of a Police Officer is not known to 
 the common law ; it is created by statute, and such an 
 officer has, and can exercise, only such powers as he is au- 
 thorized to do by the legislature, expressly or derivatively.' 
 
 charter dated on the 9th day of May, in the sixteenth year of his reign, 
 A. D. 1207. This charter declares that the king has granted and conflrmed 
 to the barons of London the right of choosing a mayor every year, and at 
 the end of the year of removing him and substituting another, if they will, 
 or eiecnng the same again. He is to be presented to the king, and swear 
 to be Taithful to him. The use of the word confivmed, in this charter, shows 
 that the name and oflScer existed before. The first civic magistrate had 
 begun to be called by the name of mayor toward the end of the reign of 
 his predecessor, Richard. The denomination of moA/or, it is said on the 
 authority of legal antiquaries, can be traced to a very far date among the 
 German and French nations of Europe. The chief governor of the town 
 communities which arose in Prance in the eleventh century, was often styled 
 the mayor. It is a matter of history, that in France, the mayor of the palace 
 was the governor of Paris, often holding sovereign power, and, indeed, in 
 time, usurping it, since it was from one of the mayors of the palace that the 
 fami-y of Charlemagne descended. And it is suggested by Mr. Norton that 
 the term mayor, familiar to the Normans, may have been originally, 
 though remotely, derived from the same source : Norton's Com. pp. 90, 
 t02, 403; see, also, Pulling's Laws, Customs, &c. of London, chap. 11. 16 m. 
 
 ' Ante, chap. I. sec. 9, and notes. 
 
 ' Commonwealth v. Dugan, 13 Met. 333, 1847 ; Commonwealth ®. Hast- 
 mgs. 9 Met. 359; ante, sees. 33, 34. In Massachusetts they are peace 
 officers, and a person who assaults or obstructs them in the discharge of 
 theii duties, is indictable, thought they have not been sworn — the statute 
 not requiring this: Buttrick«. Lowell, 1 Allen, 173; Mitchell®. Rockland, 
 51 Maine, 118, 133. In The People v. Metropolitan Police Board, 16 N. T. 
 188, 1859, growing out of the act to establish a Metropolitan Police Dis- 
 trict, It was decided by a taajority of the Court of Appeals that, though 
 the office was a new one, yet the mode of filling it not heing provided by 
 ,he constitution, it was in the power of the legislature to confer it upon 
 persons discharging substantially the same duties within a more limited 
 territorial jurisdiction, and to dispense with an oath of oflSce. See, also. 
 People V. Draper, 15 N. T. 533, 1857, where the Court of Appeals held the 
 Act to establish a Metropolitan Police District" valid; approved, Metro- 
 
873 MUNICIPAL CORPORATIONS.' [Oh. IX. 
 
 Where police officers are, by statute, invested with all 
 the powers of constables, as conservators of the peace, this 
 gives them authority to arrest, upon view, intoxicated, 
 persons while guilty of disorderly conduct, or other persons 
 violating the laws, and to detain them until they can be 
 brought before a magistrate.' If such an officer releases 
 an intoxicated person, whom he had arrested while con- 
 ducting himseK in a disorderly manner, upon his promise 
 to go directly home, he may lawfully retake him, on his 
 going into a bar-room before he is out of the officer's sight, 
 and such arrest is justified, whether it be regarded as a re- 
 
 politan Board of Health v. Heister, 37 N. T. 661, 1868; McDermotts. Metro- 
 politan Police Board, 5 Abb. Pr. 433 ; Police Commissioners v. Louisville. 3 
 Bush (Ky.) 597, 1868 ; ante, sec. 33, and notes. Extent of legislative power 
 and control over appointment, powers, &c. of police, health, and other local 
 ofBcers : Baltimore v. Board of Police (Baltimore Police Act), 15 Md. 376, 
 1859 ; Metropolitan Board of Health v. Heister, 37 N.T. 661, 1868; Peoples. 
 Hurlburt, 34 Mich. 44, 1871 ; Police Commissioners*. Louisville, above cited* 
 ante, sec. 33, n. Mode of compensation : Worcester «. Walker, 9 Gray, 78. 
 
 ' Taylor s. Strong, 3 Wend. 384, 1839 ; Bacon Ab. Constable, 0. ; Com- 
 monwealth B. Ha,stings, 9 Met. 259, 1843 ; Prell v. McDonald, 7 Kansas, 436, 
 1871. As to power of constables in such cases, see 1 Hale P. 0. 587; 
 Hawkins P. C. book H. chap. XHI- sec. 8. Where such a course is not 
 repugnant to the general law of the state, the proper officers of a municipal 
 corporation may authorize to arrest, without warrant, or upon view, offenders 
 who violate ordinances in the presence of such officers. Bryan v. Bates, 15 
 m. 87, 1858; Main «. MoCarty, 15 El. 443; State v. Lafferty, 5 Earring. 
 (Del.) 491. Post, sec. 347, n. 
 
 Power to a city corporation to make ordinances for the security, or good 
 order, or government of the place, and to appoint or elect officers to carry 
 out ordinances, authorizes the appointment of city guards, or police officers, 
 or peace officers, and such officers may arrest, without a warrant, persons 
 engaged in breaches of the peace. City Council ». Payne, 3 Nott & McCord 
 (South Car.) 475, 1830. A city council may authorize arrests vpon view, 
 without warrant, for violation of its by-laws, when not inconsistent with 
 the general statutes or policy of the state. White v. Kent, 11 Ohio St. 550. 
 1860 ; Thomas «. Ashland, 13 lb. 137. But not otherwise. Thus, where 
 the city charter declared all by-laws inconsistent with the general law to be 
 void, and where the general law did not allow an officer to arrest for a mis- 
 demeanor not committed in his presence, without a warrant, it was held 
 that an ordinance authorizing police officers to make arrests, without a 
 warrant, for violation of ordinances not committed in their presence, was 
 void, and would not protect' the officer against a suit for trespass. Pester- 
 field 9. Vickers, 3 Coldw. (Tenn.) 305, 1866 
 
Ch. nr.] CREATION AND APPOINTMENT OP OPPICERS. 273 
 
 caption for tlie original purpose, or as a new arrest for dis- 
 orderly conduct still continuing.* 
 
 § 150. Charters authorizing municipal officers to make 
 arrests upon view, and witJiout process, are to be viewed in 
 connection with the general statutes of the State, and being 
 in derogation of liberty, are strictly construed ; hence an 
 officer making such an arrest, though on the Sabbath day, 
 should instead of imprisoning, take, without unreasonable 
 delay, the person arrested before the proper tribunal and 
 prefer a complaint against him, as provided by the statutes 
 of the State." 
 
 § 151. A city coTincil authorized to elect certain officers, 
 may, where no mode of election is prescribed, appoint 
 them by resolution, and is not bound to elect them by 
 ballot ;' and the corporation has full control, unless specially 
 restricted, over all offices and officers existing only under 
 by-laws.* A vote of an authorized committee of a city, 
 
 1 Commonwealth ®. Hastings, Bupra. It follows that an obstruction 
 offered by a third person, to the oflScer in making such an arrest, would be 
 unjustifiable. Ih. 
 
 " Low V. Evans, 16 Ind. 486, 1868 (action for false imprisonment) ; Pow 
 c. Becker, 3 Ind. 475, 1852; Vandever ». Mattock, 3 Ind. 479. In Low v. 
 Evans it was held that there was no authority in the officer making the ar- 
 rest for imprisoning the party arrested for aa indefinite time («. g:, from 
 Sunday until the next day), because he may be subject to a penalty, to be 
 recovered in a ^uit in the nature of an action of debt. 
 
 ° Low v. Commissioners of Pilotage, R. M. Charlt. (Geo.) 303, 1830, per 
 Law, J. Ante, sec. 58. Power of council to appoint, and when it may 
 delegate this power to a committee. People ®. BedeU, 3 Hill (N. Y.) 196; 
 Commonwealth v. Pittsburg (police force), 14 Pa. St. 177, 1850 ; Wilder s. 
 Chicago, 36 HI. 183; Russell v. Chicago (collectors), 33 111. 385 ; ante, sec. 60. 
 
 * As t« plenary power and control, when not restricted, of a municipal 
 corporation over offices and officers existing only under ordinances, see 
 People ®. Conover, 17 N. Y. 64, 1858; Waldraven e. Memphis (right to 
 abolish office), 4 Coldw. (Tenn.) 431, 1867 ; infra, sec. 170. Madison v: 
 Korbly, 33 Ind. 74, 79, 1869. The power to appoint implies, in general, 
 the power to remove the appointees. People v. Hill, 7 Cal. 97. Thus, a 
 municipal corporation appointing commissioners in cases of local improve- 
 ments, may remove them. People v. Mayor, &c. of New York, 5 Barb. 43, 
 1848. But in South Carolina, see Oaulfield v. State, 1 8. C. 461, 1869, 
 The exercise of the power to appoint to office is an executive, not a legis. 
 tive act. Achley's Case. 4 Abb. Pr. 35, 1856. 
 18 
 
274 MUNICIPAL CORPORATIONS. [Ch. IX, 
 
 electing their clerk city engineer for a year from a sub- 
 Bequent day, duly recorded, and signed by him as their 
 clerk, is sufficient to take his appointment out of the statute, 
 of frauds.' 
 
 § 152. The same presumptions which are applicable to 
 individuals are, in general, applicable to acts of corpora- 
 tions. Thus, if a person acts notoriously as the officer of a 
 corporation, and is recognized bj*it as such officer, a regular 
 appointment will he pi-esumed, and his acts will bind the 
 corporation, although no written proof is or can be adduced 
 of his appointment." 
 
 Oath and Official Bond. 
 
 § 153. All public officers are usually required to take 
 an oatJt of office, and those entrusted with money or prop- 
 erty are also generally required to give bond and sureties 
 for the faithful performance of their duties. In England 
 it is said that an oath of office cannot be required to be 
 taken by a by-law when none is required by the charter.' 
 But in this country the oath of office is, in substance, only 
 that the officer will support the constitution and faithfully 
 perform his official duties. And such an oath may, doubt- 
 less, be required, by ordinance, to be taken by every muni- 
 Chase V. Lowell, 7 Gray, 33, 1856. 
 
 ■' Bank of United States «. Dandridge, 12 Wheat. (U. S.) 64, 70, where 
 Mr. Justice Story cites many cases, establishing the principle "that the 
 acts of artificial persons aflford the same presumptions as the acts of natural 
 persons." 
 
 = Rex«. Dean, &c., 1 Str. 539; Glover, 305; Willc. 133; Grant, 76. It 
 is the settled doctrine of the Supreme Court, that the United States, being a 
 body politic, with a capacity to enter into contracts, may, within.the sphere 
 and in the execution of its appropriate powers, take bonds and securities, 
 which are not prohibited by law, though such bonds and securities may not 
 haye been prescribed by any pre-existing legislative act. These, though 
 voluntary, — that is, not extorted or coerced, — if taken for a lawful purpose 
 and upon a good consideration, are vaUd. United States ». Tingey, 5 Pet. 
 (U. S.) 114, 128, 1831, approved, Same v. Linn, 15 li: 290, 1841 ; and see 
 Dugan ». United States, 3 Wheat. (U. S.) 172; United States «. Bradley, 10 
 Pet. (U. S.) 343. Right of city to require bond of indemnity from the 
 owner, who proposes to excavate sidewalk to make cellars, vaults, or im- 
 provements. McCarthy «. Chicago, 53 111. 38, 1870. 
 
Ch. IX.] OATH AND OPFIOIAL BOND. 375 
 
 cipal offlcer before entering upon his office. Statutes re- 
 quiring an oath of office and bond are usually directory in 
 their nature ; and unless the failure to take the oath or give 
 the bond by the time prescribed, is expressly declared, 
 ipso facto, to vacate the office, the oath may be taken or 
 the bond given afterwards, if no vacancy has been de- 
 clared.' 
 
 § 154. When the statute requires a prescribed oath of 
 office before any person elected '■'^ shall act therein,'''' a 
 person cannot justify as such officer unless he has taken an 
 oath in substantial, not necessarily literal, compliance with 
 the law. Third parties, however, acting in good faith with 
 him as such officer, are protected, notwithstanding his 
 failure to take the requisite oath." 
 
 ' Smith t. Cronkhite, 8 Ind. 134 ; State ». Findley, 10 Ohio, 51, 59, and 
 cases cited ; State ®. Porter (failure to give bond by city marshal in time), 7 
 Tna. 304 ; Sprawl ®. Laurence, 33 Ala. 674 ; Bank ». Dandridge, 13 Wheat. 
 P4; United States t. Le Baron, 19 How. 73; S. C, 4 Wall. 643; Marbury ». 
 Madison, 1 Cranch. 137. A town may lawfully require a collector of taxes 
 or other officer, to furnish sureties for the faithful discharge of the duties of 
 his office. This power is incidental, and need mn be express. If the per 
 Bon chosen neglects, or is unable, to furnish sureties, this amounts to a non- 
 acceptance of the trust, although he has taken the oath of office. Morrell 
 V. Sylvester, 1 Greenl. 348. While it is the duty of an officer to perfect his 
 title to his office by complying with the directions of the law as to taking 
 oath, depositing bonds, &c., yet his failure to do so is his own wrongful 
 neglect, and is no defense to his sureties in an action on his official bond. 
 State «. Toomer, 7 Rich. (South Car.) Law, 316, 1854; State v. Findley, 10 
 Ohio, 51, 1840. 
 
 A city council, whose duty it is to decide upon the sufficiency of the 
 sureties of a city officer, cannot refuse to do so or postpone its decision be- 
 cause the title to the office is elsewhere disputed ; and a mandamus will lie 
 to compel it to act upon the sufficiency of the securities offered. Common- 
 wealth V. City Council of Philadelphia, 7 Am. Law Reg. (N. S.) 363. 
 
 ' Olney «. Pearce, 1 Rh. Is. 393, 1850, and authorities cited by Mr. 
 Angell in note ; Riddle v. Bedford County, 7 Serg. & Raw. 393 ; Neale v. 
 Overseers, 5 Whart. (Pa.) 538. Where an officer, before acting, is required 
 to qualify by taking an oath of office, he has no legal right, until he quali- 
 fies, to recover fees of an incumbent received after the plaintiff 's appoint 
 ment or election, and before he qualifies. Thompson v. Nicholson, 13 Rob. 
 (La.) 336, 1845. See City v. Given, 60 Pa. St. 186. Post, sec. 174. 
 
 If members of a common council, who are required by the charter to be 
 Bworn before they enter on the duties of their office, are sworn before an 
 officer not authorized to administer the oath, they are still officers de facto. 
 
276 MUNICIPAL COKPORATIONS. [Ch. TX. 
 
 % 155. The principal is well settled, that official ionds 
 are valid if the condition complies substantially with the 
 requirements of the statute. The exact forni prescribed is 
 not essential unless made so .by the charter or act." As 
 such bonds are intended to secure the public the courts do 
 not favor technical defences. Accordinglj, actions have 
 been sustained on bonds, not required by law, when ex- 
 ecuted voluntarily, and with projjpr conditions, to secure 
 the performance of official duty.' And when required by 
 law bonds are good, as common law obligations, though 
 they do not conform to the statute, if they contain no con- 
 dition contrary to law. In such case the obligor voluntarily 
 agrees to make the obligee named a trustee for the persons 
 interested in the due performance of the condition.' Thus, 
 an action may be maintained on a bond given to the " select- 
 men " instead of to the "town," oj a town treasurer, con- 
 ditioned for the faithful performance of his duties." 
 
 and a tax levied by them is not invalid, and will not be set aside even in a 
 direct proceeding. State v. Perkins, 4 Zabr. (N. J.) 409, 1854. 
 
 An act of Congress provided that paymasters should, ^'^ previouB to enter- 
 ing upon the duties of their office, give good and mffiaient ionds," &c. It was 
 held, that an appointment as paymaster was complete when made by the 
 president and confirmed by the senate ; that the giving of the bond was a 
 mere ministerial act for the security of the government, and not a condition 
 precedent to his authority to act as paymaster ; and that a recital in the 
 bond of the appointment estops the principal and sureties to deny the fact 
 United States v. Bradley, 10 Pet. (U. S.) 343, 1836 ; and see, also, United 
 States Bank v. Dandridge, 13 Wheat. 64. 
 
 ' Allegheny County v. Van Campen, 3 Wend. 49, 1829; Peoples, Holmes, 
 
 8 Wend. 281 ; lb. 615; Fellows v. Gilman, 4 Wend. 414; Lawton v. Erwin, 
 
 9 Wend. 383 ; Cornell v. Barnes, 1 Denio, 35. 
 
 s Postmaster General v. Rice, Gilpin, 534 ; Montville v. Hanghton, 7 
 Conn. 548 ; Commonwealth ®. Wolbert, 6 Binney, 293. 
 
 " Thomas «. White, 12 Mass. 869 ; 5 li. 314 ; Kavanaugh s. Sanders, 8 
 Greepl. 443; Sweetzer v. Hay, 3 Gray, 49, and cases there, cited. 
 
 * SWeetzer «. Hay, 3 Gray, 49 ; Horn v. Whittier, 6 N. H. 88. A bond 
 given by the treasurer of a county for the faithful performance of his offi- 
 cial duties, to the board of supervisors of the same county, is a good and 
 valid bond, notwithstanding there may be no statute requiring one. Super- 
 visors «. Coffinbury, 1 Mich. 355 ; People v. Johr, 33 Mich. 461, 1871. 
 
 Municipal corporations may sue on official bonds of public officers when 
 interested therein. State, &c. v. Norwood, 13 Md. 177, 1858. In an action 
 on the official bond of an officer appointed by a municipal corporation, 
 
Ch. es.] dukation of official TEBM. 277 
 
 Dv/ration of Official Term. 
 
 % 156. It was a settled rule of law respecting the old 
 jorporations in England that the office of the mayor or 
 jther head officer was annual, and absolutely expired at 
 i;he end of the year ; and that without an express clause in 
 the charter, he could not hold over until his successsor was 
 provided. The right, in such case, to Tiold oner did not 
 exist by implication, and was not an incident to the office.' 
 In some charters, however, it was in terms provided that 
 the mayor or other chief officer though elected for a year, 
 should hold until his successor was chosen." When this 
 right existed it was frequently abused, by neglecting to 
 hold an election on the charter day, by which means the 
 officer continued his term. It was this abuse that gave rise 
 to the Statute of Anne, which enacted "that no person in 
 such annual office for one whole year, should be capable of 
 being chosen into the same office for the year immediately 
 ensuing," and imposed a fine upon every such officer who 
 "should voluntarily and unlawfully obstruct and prevent 
 the choosing of another person to succeed into such office 
 at the time appointed for making another choice."" Under 
 the Municipal Corporations Act the provision is, that the 
 mayor shall be elected each year, at the meeting fixed for 
 the ninth of ]S"ovember, and shall "continue in his office 
 
 reciting the appointment of the principal as such officer, neither he nor his 
 sureties can set up the invalidity of his appointment as a defence to an 
 action for moneys collected. Hoboken v. Harrison, 1 Vroom (N. J.) 73; 
 Seiple «. Elizabeth, 3 Dutch. 407. Sureties on official bond of &e facto muni- 
 cipal officer are liable for moneys collected by him ; and this though he was 
 an officer which, in point of fact, the corporation could not create. 1 
 Vroom, 78, swpra. A surety in an official bond of an officer whose term is 
 limited to a year, is not liable beyond the year, though the officer continues 
 by law until a successor is provided. Dover v. Twombly, 42 N. H. 59, 
 I860; Clemsford Co. v. Demorest, 7 Gray, 1, 1856; Mayor «. Horn, 3 Hap 
 ring. (Del.) 190, 1838. 
 
 ' Bex V. Atkyns, 4 Mod. 13; Kexu.Earle, 1 Str. 627; Mayor of Durham's 
 Case, 1 Sid. 33; Bex i>. Thornton, 4 East, 308; Foot «. Prowse, 1 Str. 625; 
 8. C, 3 Bro. P. C. 169; Willc. 398; Glover, 173. 
 
 * 11.; Bex V. Phillips, 1 Str. 394. 
 
 • 9 Anne, chap. XX. sec. 8. 
 
278 MUNICIPAL COKPORATIONS. [Ch. IX. 
 
 for one whole year,'" and by an amendment, until his suc- 
 cessor shall have accepted the office of mayor, and made 
 and subscribed the requisite oath ;° and subsequently, the 
 statute of Anne above mentioned was repealed, as being no 
 longer necessary.' 
 
 § 157. At common law, the office of an alderman, jurat, 
 capital burgess, or other member of a select body, is a 
 franchise for life, though by prescijption or charter it may 
 be limited to a definite period, but the office was so much in 
 the nature of a freehold that there was an implied right to 
 hold over, unless it was otherwise provided.* So with 
 respect to recorder, town clerk, and the like officers, the 
 duration of the office depended upon the particular charter, 
 but presumptively it was not limited, and their offices were 
 so much in the nature of a freehold that if they are " eligi- 
 ble for a year " and are constituted in general terms, they 
 do not expire with the year, but the possessors are entitled 
 to hold over until others are elected. But it is considered 
 that if they are "eligible for a year only,'''' the office ipso 
 facto determines on the expiration of the year.' 
 
 § 158. In this coTintry, however, a public office is not 
 considered as being in the nature of a grant or contract, 
 and the officer, as against the public, has no freehold or 
 property in the office ; and it is almost an invariable pro- 
 vision of law, that all officers shall be elected or appointed 
 for a fixed and definite period. To guard against lapses, 
 sometimes unavoidable, the provision is almost always 
 made in terms that the officer shall hold until Ms successor 
 is elected and qualified. But even without such a pro- 
 vision, the American courts have not adopted the strict rule 
 of the English corporations, which disables the mayor or 
 chief officer from holding beyond the charter or election 
 
 ' 5 and 6 Will. IV. chap. LXXVT. sec. 49; ante, sec. 16, and notes; Reg. 
 3. McG-owan, 12 A. & E. 869. 
 
 • 6 and 7 WiU. IV. chap. CV. sec. 4. 
 » 3 and 4 Vict. chap. XL VII. 
 
 * Eex ». Doncaster, 3 Ld. Ba;m, 1564 ; Foot v. Prowse, supra. 
 
 » "Willc. 296, pi. 766; Rex «. Durham, 10 Mod. 147; Dighton's Case, 1 
 Vent. 82. 
 
Ch. IX.] DUEATION OP OFFICIAL TERM. 279 
 
 day, but rather tlie analogy of the other corporate officers," 
 who hold over until their successors are elected, unless the 
 legislative intent to the contrary be manifested.' Thus, in 
 Vermont it is held, — ^there being no statute to the contrary, 
 and such having been the practice, — that school officers 
 elected at the annual meeting hold over until others are 
 elected at another annual meeting, whether more or less 
 than a year from the time of their election.' 
 
 § 159. The law on this subject has been thus stated by 
 a learned American judge: "Where, in the charter or 
 organic la.w of a corporation, there is an express or implied 
 restriction upon the time of holding office, as that the 
 officers shall be annually elected on a particular day, and 
 that they shall hold from one charter (election) day till the 
 next, or that they shaU be elected ' for the year ensuing 
 only,^ in such case they cannot hold ower beyond the next 
 election day or the end of the year."' "But where, by the 
 
 ' People B. Bundle, 9 Johns. 147 ; Slee ». Bloom, 5 Johns. Ch. 366, 378 ; 
 3 Kent Com. 288; Kelsey «. Wright, 1 Root (Conn.) 83; Smith «. Natchez 
 Steamboat Co., 1 How. (Miss,) 479; Lynch «. Laffland, 4 Cow. (Tenn.) 96; 
 South Bay, &c. Co. «. Gray, 30 Maine, 547 ; Elmendorf ®. Mayor, &c. of 
 New York, 35 Wend. 693. And see cases infra. 
 
 « Chandler o. Bradish, 23 Vt. 416, 1851. 
 
 " The better opinion," says Shaw, C. J., curguendo, in Overseers of Poor, 
 &c. V. Sears, 33 Pick. 123, 130, " is, that town officers annuaUy chosen, hold 
 their offices until others are chosen and qualified in their place." School 
 District «. Atherton, 12 Met. 105,1846; Dow«. Bullock, 13 Gray, 136, 1859. 
 So in Illinois. People v. Fairbury, 51 111. 149, 1869. So in Connecticut, an 
 officer elected for "the year ensuing" is, in the absence of any other re- 
 strictive provision, entitled to hold beyond the year, and until he is super- 
 seded by the election of another person in his place. McCall v. Byram 
 Manuf. Co., 6 Conn. 428, 1837, where the authorities are reviewed and com- 
 mented on by Hosmer, C. J. ; S. P. Cong. Soc. &c. ». Sperry, 10 Conn. 200 ; 
 Weir V. Bush, 4 Litt. (Ky.) 433, where, by statute, an officer holds for a 
 given term, and "until his successor is elected and qualified," he con- 
 tinues in office until his successor is duly elected and qualified, though this 
 (from failure to elect, or from other causes), be after the expiration of the 
 term. Stewart a. State, 4 Ind. 396, 1853; Tuley v. State, 1 II. 500, 515; 
 Ex pwrte Lawhorne, 18 Gratt. (Va.) 85. 
 
 2 Tuley V. State, 1 Ind. (Cart.) 500, 502, 1849, per PerUns, J.; King «. 
 Mayor, &c., 6 Vin. Abr. 296; Corporation of Banbury, 10 Mod. 346; Rex«. 
 Passmore, 3 Term R. 199; 6 Petersd. Abr. 738. But whether a provision 
 merely that an officer shall " be annually elected on a particular day," is 
 
280 MUNICIPAL CORPORATIONS. [Ch. IX. 
 
 constitution of the corporation, the officers are elected for a 
 term, and until their successors are elected and qualified, or 
 where they are elected 'for the year ensuing,' and the 
 charter or organic law contains no restrictive clause, the 
 officers mail continue to hold and exercise their offices, 
 after the expiration of the year, until they are superseded 
 by the election of other persons in their places.'" 
 
 § 160. As against the public, however, officers cannot 
 found a valid title or right to nold over upon their own 
 neglect of duty. Therefore, where the charter made it the 
 express duty of the trustees in office to give notice of, and 
 themselves to hold, the annual elections, it was held, that 
 
 an implied restriction that he shall not hold over, see the cases in Vermont, 
 Massachusetts, New York, Illinois, and Connecticut, above cited. The 
 weight of authority in this country is the other way. Where a city charter 
 gave the mayor power to hold until his successor was elected and qualified, 
 but denied this power to the members of the city council by providing that 
 they should be elected for a specified term, " and no longer," and that theii 
 seats should be vacated at the end of such term, they cannot hold over, 
 and their action, after the time thus fixed, is void, and does not bind the 
 corporation. Louisville «. Higdon, 3 Met. (Ky.) 520, 1859. When the law 
 is silent as to the term, but requires an election to be held every two years, 
 an officer holds over until his- successor is provided. Cordiell «. Frizeell, 
 1 Nevada, 130. 
 
 = Per Perhina, J., Tuley b. State, 1 Ind. (Cart.) 500, 503, 1849 (action on 
 official bond against sureties). Footi). Prowse, Str. 635; Queen «. Durham, 
 10 Mod. 146 ; King v. Lisle, Andrews, 163 ; McCall ». Manufacturing Com- 
 pany, 6 Conn. 438; 9 75. 536; 10 II. 300; 17 lb. 588; Kelsey ». Wright, 
 1 Root, 83 ; Weir e. Bush, 4 Litt. (Kj.') 439 ; People ». Runkle, 9 Johns. 147 ; 
 Vernon Society ». Hills, 6 Cow. 38 ; Slee t>. Bloom, 5 Johns. Ch. 366 ; Pender 
 V. Eng, 6 Vin. Abr. 396; 3 Kent Com. 395, note 5/ Hicks «. Launcelot, 1 
 Rol. Abr. 513 ; Bank v. Petway, 3 Humph. (Tenn.) 533 ; Stewart v. State, 4 
 Ind. 396 ; Rex «. Poole, Cas. Temp. Hardw. 33, and Phillips ». Wickham, 1 
 Paige ,Ch. 690, were considered to have a contrary bearing. It was decided, 
 in Beck «. HansCom, 9 Post. (N. H.) 313, 333, 1854, that where the charter 
 or incorporating act made no provision for the continuance of corporate 
 officers va office after the expiration of the term for which they were elected, 
 they could not hold over until others should be chosen and qualified; 
 citing the opinion of Chancellor Walworth, in Phillips v. Wickham, 1 Paige, 
 590 ; but admitting that the People v. Runkle, 9 Johns. 147, and Trustees ii. 
 Hills, 6 Cow. 33, held a different view. In People «. Tieman, 8 Abb. Pr. 
 359; S. C, 30 Barb. 193, the Supreme Court, at special term, denied that the 
 officer himself could hold over unless authorized by statute, though to pro- 
 tect the public his acts are sustained. Cocke v. Halsey, 16 Pet. 71. 
 
Oh. IX.] VACANCIES IN MUNICIPAL OFFICES. 381 
 
 if they omitted to discharge this duty, though inadvertently, 
 in consequence of which omission there was and could be 
 no election, that they were not entitled to Tiold over, al- 
 though by the charter it was provided that they should 
 continue in office until a new election should be made and 
 their successors should qualify.' 
 
 Vacancies in Municipal Offices. 
 
 % 161. At common law there miist be a vacancy in the 
 office existing at the time of the election; "for one can- 
 not," says Mr. Willcock, "be elected to a corporate office 
 in reversion."' And the same doctrine has been recognized 
 in this country, and a vacancy must exist before an election 
 to fill it can be ordered,' and an election to fill an anticipated 
 vacancy is not valid unless expressly authorized by the char- 
 ter or statute. * Elections, however, in advance of the expira- 
 tion of the regular term of the incumbent of an office, are al- 
 ways provided for and held, but such cases are not elections to 
 vacancies within the meaning of the rule under consideration. 
 
 ' People v. Bartlett, 6 "Wend. 333, 1831. In sucli a case, being trustees 
 defotcto, their acts would be good. And their Ufle would also be good ex- 
 cept when called in question by quo wa/rranto. lb.; Lynch ». Laffland, 4 
 Coldw. (Tenn.) 96, 1867. Validity of acts of officers de facto. People s. 
 Stevens, 5 Hill (N. T.) 616, per Branson, J. ; People v. Eiinkle, 9 Johns. 
 147; Trustees v. Hill, 7 Cow. 23; Plymouth!). Painter, 17 Conn. 685; Smith 
 V. State, 19 lb. 493 ; People v. Bartlett, 6 "Wend. 433 ; State v. Jacobs, 17 
 Ohio, 143 ; Hinton b. Lindsay, 30 Geo. 746. Post, sees. 314, 716. 
 
 = "Willc. Corp. 307, pi. 536; Hob. 150; Skin. 45; Glover, 316. 
 
 ' Lindsey v. Luckett, 30 Texas, 516; Biddies. Willard, 10 Ind. 63, 1857; 
 People V. "Wetherell, 14 Mich. 48. 
 
 * Biddle v. "Willard, supra. In this case it was said, that a resignation to 
 take effect at a fixed future time may, if no new rights have attached, be 
 withdrawn, even after acceptance, by the consent of the party accepting; 
 and under the laws of that state it was held, that such a resignation did not 
 create a vacancy which would authorize an election at a period prior to the 
 taking effect of the resignation. 
 
 There is no technical or peculiar meaning to the word " vacant," as used 
 in the constitution. It means empty, unoccupied ; as applied to an office, 
 without an incumbent. There is no basis for the distinction urged, that it 
 applies only to offices vacated by death, resignation or otlierwise. An ex- 
 isting office, without an incumbent, is vacant, whether it be a new or an old 
 one. Per Stuart, J., Stocking v. State ("vacancy in new judicial circuit), 7 
 Ind. 336, 1855; followed, Collins i>. State, .8 lb. 344, 1856^ 
 
^2 MUNICIPAL CORPOBATIONS. [Oh. IX. 
 
 Refusal to Serm in Office. 
 
 % 162. It is an established common law principle, that 
 since a municipal corporation is entitled to the official 
 service of its eligible members, it may, by virtue of its in- 
 herent or incidental power, pass a by-law imposing a 
 pecuniary penalty upon such as refuse, without legal ex- 
 cuse, an office to which they have* been duly elected.' The 
 ground of this doctrine is clearly set forth by Lord Holt iu 
 Vanacker's Case, and although all of his reasoning is not 
 applicable to our American municipal corporations, still it 
 is believed that under the usual general welfare clause, or 
 under their incidental power to pass reasonable and neces- 
 sary by-laws, they would be authorized, where such an 
 ordinance did not contravene the charter or statute, or 
 public legislative policy respecting offices, to impose a 
 reasonable fine for refusing corporate offices. In this 
 country, however, offices have not usually been regarded as 
 burdens to be avoided, but rather, as distinctions to be 
 coveted, and hence there has been little occasion to call into 
 
 ' City of London «. Vanacker, 1 Ld. Raym, 496; S. C, Cartb. 482; 8. 0., 
 12 Mod. 272; 1 Salk. 142; Rex ®. Bower, 3 Dowl. & R. 761, 842; S. C, 1 
 Bam. & Cress. 587 ; Vintners' Company «. Passey, 1 Burr. 339 ; Willc. 330 ; 
 Glover, 181 ; Grant, 311. If of a public and magisterial nature, the penalty 
 for refusal may be imposed, though the person be also liable to be punished 
 by indictment, or, in the disrcetion of the court, by criminal information. 
 London®. Vanacker, ILd. Raym. 499; Rex«. Grosvenor, 1 Wils. 18; S. C, 
 2 Str. 1193; Rex ». Hungerford, 11 Mod. 133, 143; Rex v. Woodrow, 3 Term 
 R. 782; Rex«. Whitwell, 5 Term R. 86; Rex ». Leyland, 3 M. & 8. 184. 
 The Municipal Corporations Act (5 and 6 Will. IV. chap. LXXVI. sec. 
 51) requires every qualified person elected to the office of alderman, coun- 
 cillor, auditor, or assessor, or mayor, to accept the office or pay a fine to 
 the borough fund. The refusal to take the requisite oaths is a refusal of 
 the office. Exon ». Starre, 3 Show. 159. As there is a common law duty to 
 serve in an office to which a person has been duly elected, this duty may, if 
 the office be sufficiently important, be enforced by mandam.us, and the pay- 
 ment of the fine is not in lieu of service unless the statute or by-law release 
 him from service by treating the penalty as compensation. Rex ». Bower, 
 1 Barn. & Cress. 585; S. C, 3 Dowl. & R. 843 ; Rex «. Leland, 3 Made & 
 Bel. 185; Rex ». Woodrow, 2 Term R. 731. Post, sec. 667. By the above 
 mentioned provision of the Municipal Corporations Act, the fine is in lieu 
 of the acceptance of the office. Grant on Corp. 322. 
 
Ch. rx.] RESIGNATION OF MUNICIPAL OFFICES. 283 
 
 exercise the power of the courts, or to test the authority of 
 the corporations, to enforce the undertaking of their oflBces. 
 If, under the charter or statute, an officer has the rigJit to 
 resign or lay down his office at pleasure, the authority to 
 impose a fine for refusing to serve would probably not exist,' 
 
 Mesignation of Municipal Offices. 
 
 % 163. An office must he resigned either (first) express- 
 ly, or (second) by implication.'' If the charter prescribes 
 the mode in which the resignation is to be made, that mode 
 should, of course, be complied with.' Acceptance by the 
 corporation is, at common law, necessary to a consumma- 
 tion of the resignation, and until acceptance by proper au- 
 thority, the tender or oflFer to resign is revocable.* The 
 right to accept a resignation is a power incidental to every 
 corporation.* It is also a common law principle that the 
 right to accept the resignation of an officer is incidental to 
 the power of appointing him." If no particular mode is 
 
 ■ See Willo. 133, pi. 808; Grant, 331, 333; Gates v. Delaware County, 12 
 Iowa, 405 ; United States ». Wright, 1 McLean, 509 ; State, &c. t. Ferguson, 
 81 N. J. (2 Vroom) 107. 
 
 » Regents of Uniyersity n. Williams, 9 Gill & J. (Md.). 865, 433, 1838 ; 
 Willc. 133, 238; Grant, 268, 346, note e; II. 331, 332. 
 
 ' Willc. 239; Rex «. Hughes, 5 Barn. & Cress. 886, 896; Rex ». Mayor of 
 Ripon, 1 Ld. Raym. 563 ; Rex ®. Payne, 3 Chitty, 366 ; Reg. ■». Morton, 4 
 Q. B. 146. 
 
 < Rex B. Lane, 3 Ld. Raym. 1304; Rex v. Ripon, supra; Hazard's Case, 
 2 Rol. 11 ; Jenning's Case, 13 Mod. 403 ; Rex ®. Patteson, 4 B. & Ad. 9 ; 1 
 Nev. & Mann. 613. The acceptance may be by entry in books, by vote, or 
 resolution, or by treating the place as vacant and electing another to fill it, 
 or ordering an election if to be fiUed by a popular vote. Van Orsdall ®. 
 Hazard, 3 Hill (N. T.) 243; State v. Ancker, 2 Rich, (South Car.) 345. One 
 elected to an office cannot redgn it before he has qualified and become an 
 incumbent of it. Miller v. Supervisors, &c., 35 Cal. 93 ; Willc. 336. 
 
 'Rex «. Tidderley, 1 Sid. 14; Hazard's Case, supra. The "common 
 council " may regulate resignations by by-laws, and it may accept resigna- 
 tions, as it represents the corporation at large. Rawlinson (5th ed.) 317, 
 note; Staniland v. Hopkins, 9 M. & W. 178; Willc. 340, pi. 615. 
 
 ' Van Orsdall v. Hazard, 3 Hill (N. T.), 243 ; asserting, arguendo, the in- 
 cidental power of municipal corporations, as such, to accept resignations, 
 and approving the opinion of Mr. Willcock (Munic. Corp. 340), who ob 
 serves, respecting the cases on this subject ; " I presume that a right to 
 
384 MUOTCIPAL OOEPOBATIONS. [Ch. IX. 
 
 prescribed, neither the resignation or acceptance thereof 
 need be in writing, or in any form of words." 
 
 : § 164. An office may be impliedly resigned or vacated 
 by the incumbent being elected to and accepting an incom- 
 patiMe office. The rule, says ParJce, J., in a leading Eng- 
 lish case on this subject, that where two offices are incom- 
 patible they cannot be held together, is founded on the 
 plainest principles of public policy, and has obtained from 
 very early times.' The principle applies not only where 
 the second office is the superior and more important one, 
 but also where it is not.' The rule has been generally 
 stated in broad and unqualified terms, that the acceptance 
 of the incompatible office by whomsoever the appointment 
 or election might be made, absolutely determined the 
 original office, leaving no shadow of title in the possessor, 
 whose successor may be at once elected or appointed, neither 
 quo warranto nor amotion being necessary.* 
 
 § 165. The doctrine just stated is undoubtedly true 
 where the acceptance of the second office is made by or 
 with the privity of that authority which has the power to 
 accept the surrender of the first or to amove from it ; but 
 " such acceptance does not operate as an absolute avoidance 
 in cases where a person cannot divest himself of an office 
 by his own mere act, but requires the concurrence of another 
 
 accept a resignation passes incidentally with a right to elect." See, also, 
 Rex V. Tidderley, 1 Sid. 14, per Male, Ch. b! ; Jenning's Case, 12 Mod. 402; 
 Taylor's Case, Poph. 133. 
 
 ' Same authorities; and see, also, Bex ®. Eipon, 1 Ld. Eaym. 563; S. C, 
 2 Salk. 433; Regina v. Lane, 1 Ld. Raym. 1304; Jenning's Case, 12 Mod. 
 402 ; Regina v. Gloucester, Holt R. 450 ; Van Orsdall v. Hazard, 3 Hill (N. 
 Y.) 243, 248; State a. Allen, 21 Ind. 516, 1863; People ». Police Board, 2& 
 N. Y. 316; McCunn's Case, 19 Ih. 188, distinguished. 
 
 ' Per Parlce, J., Rex v. Patteson, 4 Bam. & Adol. 9, 1832; 1 Nev. & 
 Mann. 612; Regents of the University o. Williams, 9 Gill & Johns. (Md.) 
 365, 1838; 1 Kyd, 369-375. 
 
 « Milward ». Thatcher, 2 Term R. 87, which settled this point conclu- 
 Bively; Rex v. Trelawney, 3 Burr. 1615 ; Gabriel v. Clarke, Cro. Car. 138; 
 Rex«. Godwin, Doug. 883, note 22; Willc. 240, pi. 617; Glover, 139. 
 
 * Gabriel «; Clark, supra; Verrior «. Sandwich, 1 Sid. 305; Milwij:d e. 
 Thatcher, supra; Glover, 329; Willc. 240, pi. 617. 
 
Ch. IX.] RESIGNATION OF MUNICIPAL OFFICES. 285 
 
 axithority to his reisignation or amotion, ilnless that au- 
 thority is privy and consenting to the second appoint- 
 ment."' If one holding an office in a • corporation be by 
 that corporation elected to an incompatible office, this, of 
 course, is a consent on the part of the corporation that the 
 first office be vacated, and if the second office be accepted, 
 the first is at once and ipso facto determined. But, until 
 acceptance, the former office is not vacated." 
 
 § 166. The rule imder consideration is not limited to 
 corporate offices, but extends, both in its principle and ap- 
 plication, to all public offices. Thus, if a Judge of the 
 Common Pleas accepts an appointment to the King's Bench, 
 the first office is vacated, since it is the duty of the one to 
 correct the errors of the other.' 
 
 Whether offices are incompatible depends upon the 
 charter or sta.tute, and the nature of the duties to be per- 
 formed.' The same man cannot be judge and minister in 
 
 • Parlce, J., Rex v. Patteson, supra. It has been held in this country, 
 however, that an incumbent of a public office may lay it down at his pleas- 
 ure, and, that the officer to whom the resignation, by law, is to be made 
 cannot forbid it or refuse it; and that when received by such officer it 
 operates to vacate the office resigned. Gates v. Delaware County, 13 Iowa, 
 405 ; United States 'o. Wright, 1 McLean, 509. See, however, State, &c. v. 
 Ferguson, 31 N. J. (3 Vroom) Law, 107 ; Lewis v. Oliver, 4 Abb. Pr. R. 131 ; 
 People V. Porter, 6 Cal. 36. 
 
 ^ Tb. Milward v. Thatcher, supra; Rex v. Pateman, supra ; Willc. 343, 
 pi. 633; Arkwright v. Cantrell,'7 Ad. & E. 565. Acceptance necessary: see, 
 also, State v. Ferguson, 31 N. J. (3 Vroom) Law, 107, 1864 ; see Lewis ■». 
 Oliver, 4 Abb. Pr. 131. Acceptance of an incompatible office, even under a 
 void election, puts an end to the first office, and the officer, on being ousted 
 from the second office, cannot be restored to the first. Rex ». Hughes, 5 B. 
 & C. 386; Rex «. Bond, 6 D. & R. 833. 
 ' Glover on Corp. 139. 
 
 * Milward v. Thatcher, supra, per Buller, J. ; People ». Carrigue, 3 Hill 
 (N. T.) 93, and cases cited ; Staniland s. Hopkins, 9 M. & W. 178. 
 
 Incompatibility in offices exists where the nature and duties of the two 
 offices are such as to render it improper, from considerations of public pol- 
 icy, for one incumbent to retain both. It does not necessarily arise when 
 the incumbent places himself, for the time being, in a position where it ia 
 Impossible for him to discharge the duties of both offices. Bryan «. Cattell, 
 15 Iowa, 538, 1864, per Wright, C. J. ; and accordingly that case held that the 
 office of district attorney and of captain in the volunteer service of the 
 
286 MTTNICIPAL CORPORATIONS. [Oh. EK. 
 
 the same court, and hence the offices are not compatible,' 
 Where the recorder is an adviser to the mayor, the two 
 offices pannot be held together.' 
 
 § 167. An office may be vacated hy abandonment* 
 A voluntary enlistment by a civil officer in tTie military 
 service of the United States for three years, or during the 
 war, vacates the civil office, being a constructive resignation 
 by abandonment.' So where residence within the corpora- 
 tion is necessary in order to be eligible to hold an office, 
 permanent removal from the municipality may undoubtedly 
 be taken as evincing an intention to resign, and as an im- 
 plied resignation.' 
 
 Compensation of Municipal (Officers. 
 
 % 168. We have had occasion to discuss the complete 
 sv/premacy of the legislature over public corporations, 
 limited only by express constitutional restraints.' Its 
 authority over public offices, which are created or author- 
 ized solely for the public convenience, is equally great,' and 
 may be conferred upon municipal corporations with respect 
 to municipal offices. The legislature, in the absence of con- 
 United states were not legally incompatible. Two offices are incompatible 
 ■where the holder cannot, in every instance, discharge the duties of each. 
 Per Bailey, J., Rex v. Tizzard, 17 Eng. 0. L. 193. 
 
 ' Poph. 28, 39; 1 Sid. 305; 2 Keb. 98; Glover, 139. 
 
 « Willc. 341, pi. 518; Rex s. Marshall, dted, 2 B. & A. 341. ChrTc of a 
 Bchool district and collector of the district were held not incompatible, and 
 the same person may, therefore, be appointed to both offices, there being 
 no prohibition in the act. Howland o. Luce, 16 Johns. 185, 1819. The 
 offices of councilman and, city marshal are incompatible. State ®. Hoyt, 2 
 Oregon, 246. See, generally, as to incompatible state and federal offices : 
 Respublica v. Dallas, 3 Yeates (Pa.) 816; S. C, 4 Ball. 239; Commonwealth 
 e. Binns, 17 Serg. & Rawle, 219 ; Commonwealth ®. Ford, 5 Barr (Pa.) 67. 
 
 a Willc. 288; State v. Allen, 31 Ind. 516, 1863. 
 
 ♦ State V. Allen, 31 Ind. 516, 1863. But see Bryan s. Cattell, 15 Iowa, 
 687. 
 
 ' Willc. 388. Ante, sec. 184. 
 
 ' Ante, chap. IV 
 
 '' Ante, chap. lY. As to special constitutional restrictions, ^ante, sees. 
 88,34. 
 
Ch. IX.] COMPENSATION OF MUNICIPAL OFFICERS. 287 
 
 etitntional limitation, may create and abolisli offices, add to, 
 or lessen, their duties, abridge or extend the term of office, 
 and increase, diminish, or regulate, the compensation of 
 officers at its pleasure." 
 
 § 169. There is no such implied obligation on the part 
 of municipal corporations, and no such relation between 
 them and officers which they are required by law to elect, as 
 will oblige them to make compensation to such officers, 
 unless the rigM to it is expressly given by law, ordinance, 
 or by contract." Officers of a municipal corporation are 
 deemed to have accepted their office with knowledge of, 
 and with reference to, the provisions of the charter or in- 
 corporating statute relating to the services which they may 
 be called upon to render, and the compensation provided 
 therefor. Aside from these, or some proper by-law, there 
 is no implied assumpsit on the part of the corporation with 
 respect to the services of its officers. In the absence of 
 express contract, these regulate the right of recovery, and 
 the amount. If the charter or by-laws provide for a pecu- 
 liar mode of compensation, as, for example, to a city sur- 
 veyor, for superintending grading of streets, by an assess- 
 ment upon the property owners, the city is not liable before 
 
 ' Ante, chap. IV. and see, also, Conner v. "Ulajat, &c. of New York, 1 
 Seld. (N. T.) 285, 1851; affirming 8. C, 2 Sandf. S. C. E. 355; Warner ■a. 
 People, 7 Hill, 81; 2 Denio, 272; People ». Morrell, 11 Wend. 563, 1839: 
 Phillips v. Mayor, &c. of New York, 1 Hilt. (Com. PI.) 483 ; Bryan v. Cattell, 
 15 Iowa, 538, 553, per Wright, C. J. ; Coffin v. State, 7 Ind. 157, 1855 ; People 
 V. Mahaney, 13 Mich. 481 ; Turpen v. County Oommrs., 7 Ind. 172; Oregon 
 «. Pyle, 1 Oregon, 149 ; Bird v. Wasco Co., 3 Oregon, 282, 1871 ; Cowdin v. 
 Hufl, 10 Ind. 83 ; Cooley Const. Lim. 376 ; Butler v. Pensylvania, 10 How. 
 402; Smith n. New York, 37 N. Y. 518, 1868; Swann v. Buck, 40 Miss. 268, 
 1866. While the office is continued, and the officer not removed, he is 
 entitled to salary. Hoke v. Henderson, 4 Dev. (N. C.) 1 ; Cotten v. Ellis, 
 8 Jones (N. C.) Law, 545. 
 
 « Sikes B. Hatfield, 13 Gray, 347, 1859 ; Barton v. New Orleans, 16 La. An. 
 317 ; Gamier v. St. Louis, 37 Mo. 554, 1866. It is advisable that salaries 
 should be fixed by ordinance, and not voted as a matter of grace and favor. 
 Smith o. Commonwealth, 41 Pa. St. 335. Devoy d. New York, 39 Barb. 169 ; 
 Bladen v. Philadelphia, 60 Pa. St. 464. See opinion of Thompson, C. J., 
 Philadelphia v. Given, Ih. 136. Municipal corporations are not liable for 
 services performed by an officer under an nnconstitutional statute. Meagher 
 V. County, 5 Nev. 244, 1869. Poet, sec. 730. 
 
288 MUmCIPAL COEPORATIONS. [Off. IX, 
 
 it collects the inoney, if it makes the requisite assessments, 
 and is proceeding with proper diligence to enforce them.' 
 
 § 170. A municipal corporation may, unless restrained 
 by charter, or unless the employment is in the nature of a 
 contract, reduce or otherwise regulate the salaries and 
 fees of its officers, according to its view of expediency and 
 right. Althougli an officer may be elected or appointed for 
 a fixed period, yet where he is not bound, and cannot be 
 compelled to serve for the whole time, such election or ap- 
 pointment cannot be considered a contract to hire for a 
 stipulated term. Ordinances fixing salaries are not in the 
 nature of contracts with officers.' 
 
 ' Baker v. City of TJtica, 19 N. T. 326 ; People «. Supervisors, 1 Hill, 362 ; 
 Cumming «. Mayor, &c. of Brooklyn, 11 Paige, 596 ; Jersey City «. Quaif e, 3 
 Dutch. (N. J.) 63; Andrews ®. United States, 3 Story C. C. 303; United 
 States V. Brown, 9 How. 487; Barton®. New Orleans, 16 La. An. 395; Mc- 
 Clung V. St. Paul, 14 Minn. 420, 1869; Smith «. Commonwealth, 41 Pa. St. 
 885. " It is very plain to us that a town ofiScer, as such, has no legal claim 
 against the town to recover pay for services rendered, unless by an express 
 vote of the town, or an uniform usage to pay that particular officer from 
 year to year, for his services. And in the latter case, it would be very ques- 
 tionable whether a recovery at law could be had, if it had all along been left 
 to the town to make such compensation as they should deem reasonable, 
 after the services had been rendered. * * * xhe same princi- 
 ple has always been recognized in this state in regard to all officers. If no 
 law of the state fixed their fees or pay, their services must be gratuitous." 
 Per BedfleU, J., Boyden ■». Brookline, 8 Vt. 284, 1836. But the decision (in 
 Boyden v. Brookline, 8 Vt. 384,) does not extend strictly beyond offleM ser- 
 vices, and when a town agent, acting for the town, or the town itself, em- 
 ploys an attorney at law to prosecute or defend suits against the town, the 
 latter is liable for the services. And the rule is the same if the "town 
 agent," being an attorney, renders for the town professional services, in 
 suits which the proper authorities of the town directed to be instituted. 
 Langdon «. Castletou, 80 Vt. 385, 1858. 
 
 « Commonwealth v. Bacon, 6 Serg. & Rawle (Pa.) 333, 1830 ; followed, 
 Baker «. Pittsburg, 4 Pa. St' 49, 1846 (abolishing annual salary of collector 
 of tolls); also, approved: University v. Walden, 15 Ala. 655, 1849, but dis- 
 tinguished ; Carr «. St. Louis, 9 Mo. 190 ; Comw. v. Mann, 5 W. & S. (Pa.) 418 ; 
 Smith «. County, 3 Par. (Pa.) 293 ; Madison ». Kelso, 33 Ind. 79 ; Warner 
 0. People, 3 Denfo, 373 ; Conner ». Mayor, &c. of New York, 1 Seld. 385, 
 396; Augusta®. Sweeny, 44 Geo. 463, 1871. In an action against a city 
 treasurer, on his official bond, for moneys received by him, he cannot charge 
 commissions for the whole term at the rate allowed by law at his accession 
 to office, when his compensation has been changed to a lower rate subse- 
 
Ch. IX.] COMPENSATION OF MUNICIPAL OFFICERS. 289 
 
 § 171. But where the services to be performed are pro- 
 fessional or private, rather than public or oflB.oial, an 
 employment under an ordinance for a fixed time, at a fixed 
 sum for the period, has been held to be a contract, and not 
 subject to be impaired by the corporation. Thus, the 
 appointment or election by a city council, for a fixed and 
 definite p^iod, of a city officer— for example, a city engin- 
 eer, for one year, at the rate of one thousand dollars per 
 year — if accepted by him, constitutes, in the opinion of 
 the Supreme Court of Massachusetts, a contract between 
 him and the city, and the city, in such a case, has no au- 
 thority, unless expressly conferred, to abolish or shorten 
 the term of office, so as to deprive the officer, 'without his 
 consent, of the right to compensation for the full period, 
 unless for misbehavior or unfitness to discharge the duties 
 of the place.' 
 
 quently. Iowa City a. Poster, 10 Iowa, 189 ; mpra, sec. 151. In Commonr 
 wealth 1). Bacon, lupra, it was held that an ordinance which reduced the 
 salary of the mayor after the commencement of his term, was valid. The 
 court said, " this cannot be considered in the nature of a hiring for a year, 
 because it was not obligatory on the mayor to serve out the year." Though 
 ordinance may fix term and compensation of officer, the office may bo abol- 
 ished, if its abolition be not forbidden, or salary reduced. There is no con- 
 tract between corporation and officer that the service shall continue, or the 
 salary not be changed. Waldraven «. Memphis, 4 Coldw. (Tenn.) 431, 1867 ; 
 Hoboken v. Gear,, 3 Dutch. (N. J.) 265, 1859. General power to a corpora- 
 tion to fix the compensation of its officers does not authorize it to take away 
 the fees of an officer, which are gpeaijkall/y fixed by the same charter. Carr 
 V. St. Louia, 9 Mo. 190, 1845. The legislature may provide that the salary 
 of an officer may be fixed by one board, e. g.,& commxm council, though it 
 is payable by another, e. gr., a county, or board of supervisors, and in that 
 case, the latter have no authority to change it when once fixed. People i>. 
 Auditors of Wayne, 13 Mich. 338. 
 
 ' Chase ®. Lowell, 7 Gray, 88, 1856 ; and see Caverley v. Lowell, 1 Allen 
 (Mass.) 289, 1861, as to ordinance constituting a contract with city attor- 
 ney. These cases, if really distinguishable from the others, should not, it is 
 believed, be extended, but the principle limited to instances where the ser- 
 vices are not essentially official in their nature, and where the officer or 
 other party is bound to serve for the fixed and definite period. 
 
 A resolution of the council empowering an individual to collect the taxes 
 due the city, at a given rate per cent, on the amount collected for his com- 
 pensation, may be repealed or modified at any time by the corporation,, on 
 the sole condition that it shall be liable for any compensation earned under 
 the resolution previous to its repeal or modification. Hiestand v. New 
 •19 
 
890 MUNICIPAL C0RP0EATI0N8. [Ch. IX. 
 
 § 172. It IS a well settled rule that a person accepting a 
 public office, with a fixed salary, is bound to perform the' 
 duties of the office for the salary. He cannot legally claim, 
 additional compensation for the discharge of these duties, 
 even though the salary may be a very inadequate remunera- 
 tion for the services. Nor does it alter the case that by 
 subsequent statutes or ordinances his duties within the 
 scope of the cTiarter powers pertaining to the office are in- 
 creased and not his salary. Whenever he considers the 
 compensation inadequate, he is at liberty to resign. The 
 rule is of importance to the public. To allow changes and 
 additions in the duties properly belonging or which may 
 properly be attached to an office to lay the foundation for 
 extra compensation, would soon introduce intolerable mis- 
 chief. The rule, too, should be very rigidly enforced. The 
 statutes of the Jegislature and the ordinances of our mu- 
 nicipal corporations seldom prescribe with much detail and 
 particularity the duties annexed to public offices ; and it 
 requires but little ingenuity to run nice distinctions between 
 what duties may, and what may not, be considered strictly 
 official ; and if these distinctions are much favored by 
 courts of justice, it may lead to great abuse.' 
 
 Orleans, 14 La. An. 330, 1859. The court did not regard the resolution as 
 creating a contract, or, if so, it was one of mandate, revocable at the vrill of 
 the principal. lb. 
 
 ' Per Potts, J., in Court of Errors and Appeals, Evans «. Trenton, 4 Zabp. 
 (N. J.) 766, 1853. See, also, Andrews v. United States, 3 Story C. Ct. 202; 
 Palmer «. The Mayor, &c. of New York, 3 Sandford (N. T.) 318; Bussier«. 
 Pray, 7 Berg. & Rawle, 447; Angell & Ames on Corp. sec. 317; Gilmore v. 
 Lewis, 12 Ohio, 281 ; Detroit «. Redfield, 19 Mich. 376, 1869. 
 
 A salaried officer of a public corporation has no claim for compensation 
 extra his salary, on the ground that the duties of his office have been in- 
 creased, or new duties added since the salary was fixed. People v. Super- 
 visors, 1 Hill (N. T.) 363; Wendell 8. Brooklyn, 39 Barb. 304; Palmer v. 
 Mayor, &c. of New York, 3 Sandf; (N. Y.) 318. Special instances, where a 
 claim for compensation, in the absence of express provision, has been sus- 
 tained, where the law has required a public officer to perform a duty, 
 attended with trouble and expense, clearly outside of his regular official 
 duties, see People ». Supervisors, 12 Wend. 267 ; Bright v. Supervisors, 18 
 Johns. 343 ; Mallory o. Supervisors, 3 Cowen, 631 ; II. 533 ; Detroit v. Red- 
 field, 19 Mich. 376, 1869. This suliject is discussed in White v. Polk 
 County, 17 Iowa, 413. 
 
 Where salary ia fixed by ordinance, it cannot be changed by a commit- 
 
Ch. IX.] LIABILITY TO OFFICER. 291 
 
 § 173. Not only has an offlcar, under such oirctina- 
 stances, no legal claim for extra compensation, but a 
 promise to pay him an extra fee or sum beyond that fixed 
 by law is not Mnding, though he renders services and 
 exercises a degree of diligence greater than could legally 
 have been required of him.' 
 
 Iddbility of Corporation to the Officer. 
 
 % 174. Where an officer of a municipal corporation, 
 elected by the people for a specified term, is improperly 
 removed by the city council, he may sue the corporation 
 for his salary and perquisites for the time intervening his 
 removal and the expiration of his term." It is a defence to 
 
 tee or individual members of the corporation ; nor will their promise to pay 
 extra compensation for the duties of the office be binding on the corpora- 
 tion. But for services performed by request, not part of the duties of his 
 office, and ■which could as appropriately have been performed by any other 
 person, such officer may, in proper cases, recover a just remuneration. 
 Evans «. Trenton, 4 Zabr. (N. J.) 764, 1853.. S. P., Detroit v. Redfleld, 19 
 Mich. 376, 1869 ; Converse ®. United States, 21 How. 463. For services 
 required by ordinances, the city attorney is entitled to the compensation 
 fixed by ordinance, and no other; and the mayor, by virtue of his duty to 
 see that the "ordinances are duly enforced," cannot bind the corporation 
 to pay more than the fixed salary or compensation, and this duty does not 
 authorize that officer to employ assistant or independent counsel in any case, 
 at the expense of the corporation. Carroll v. St. Louis, 12 Mo. 44, 1849. 
 Further, as to liability of city to attorneys, see the chapter on Contracts. 
 
 ' Heslep V. Sacramento, 3 Cal. 580 ($10,000 voted to mayor for merito- 
 rious services, held void); Hatch «. Mann, 15 Wend. 44; reversing S, C, 9 
 IT). 262; approved Palmer v. Mayor, &c. of New York, 3 Sandf. 218; 
 Bartho ». Salter, Latch, 54 ; W. Jones, 65 ; S. C. Lane v. Sewell, 1 Chitty, 
 175; Ih. 395; Morris v. Burdett, 1 Camp. 318; 3 lb. 374; Callaghan o. 
 Hallett, 1 Gaines (N. Y.) 104 ; S. C, Col. & C. Cas. 179 ; Preston v. Bacon, 4 
 Conn. 471 ; Shattuck v. Woods, 1 Pick. 175 ; Bussier ». Pray, 7 Serg. & 
 Rawle, 447; Carroll ». Tyler, 3 Har. & Gill, 54; Smith «. Smith, 1 Bailey, 
 70 ; Debolt v. Cincinnati, 7 Ohio St. 337 ; Pilie ®. New Orleans, 19 La. An. 
 373. The principle operates to deprive a public officer, or an officer of a 
 municipal corporation, of a claim for a reward oflered for a service which 
 is embraced in his official or legal duties. Gilmore e. Lewis, 13 Ohio, 281, 
 where a. constable who arrested a thief was held not entitled to a reward 
 offered by the defendant. S. P., Pool «. Boston, 5 Cush. 219. See anU, 
 chap. VI. sec. 91. 
 
 ' Stadler v. Detroit, 13 Mich. 346, 1865; Shaw «. Mayor, &c., 19 Geo. 468, 
 1856. The court, in considering the rule of damages in such a case, hold 
 
293 MUNICIPAL CORPOBATIONS. [Oh. IX. 
 
 the corporatijDii that the officer was legally removed ; but if 
 he was illegally removed, it is no answer to the action that 
 the corporation, in making the removal, acted judicially, 
 and therefore is not liable for the error it committed.' 
 
 that the officer cannot recover of the corporation counsel fees for defending 
 himself against the charges preferred against him, but may recover such 
 "damages as necessarily resulted from nis amotion from office, viz: M» 
 , sala/ry and perquisites." 19 Geo. 468, supra. ♦But the corporation, it is sug- 
 gested, may recoup the same as individuals who improperly dismiss servants 
 employed for a determinate period. 3 Greenl. Ev. sec. 261*. But see ITnited 
 States V. Addison, 6 Wall. 391 ; Hoke v. Henderson, 4' Dev. 1. 
 
 ' Shaw «. Mayor, &c., 19 Geo. 468, 1856; Shaw v. Mayor, &c., 31 Geo. 
 380; see S. 0. Mayor, &c. v. Shaw's Administrator, 35 Geo. 590. In the 
 case last cited, it was decided that if the removal of a city officer be for 
 a specfied cause, not. warranting the removal, and the officer sue the corpo- 
 ration for his salary, as a defense to such action it may aver and prove other 
 matters, good in law, to justify such removal. In thus holding, the court 
 say : " If his term of office had not expired when this suit was instituted, 
 and he had moved for a mandamus to restore him, instead of bringing an 
 action for his salary, the court would not have interfered, if good cause for 
 his removal could have Ijeen shown, although he may have been removed 
 without notice. Bex v. Mayor, &c., 3 Cowp. 533; The King ». The Mayor, 
 &c., 3 Term R. 183"— p«»- MaDonaU, J. ; 35 Geo. 690. 593. See Hoboken v. 
 Gear, 3 Dutch. (N. J.) 365. An incumbent was appointed by the aldermen 
 and removed by the mayor, who nominated a successor ; the incumbent's 
 salary did not cease until his successor was confirmed. White v. MayoF, &c. 
 of New York, 4 E. D. Smith, 568, 1855. 
 
 Declaring an office and the prospective fees of the officer not to be prop- 
 erty, and that the right to fees grows out of services performed, it was de- 
 cided by the Com't of Appeals that a municipal officer who had been kept 
 out of his office and had not performed its duties, could not maintain an 
 action against the city to recover the amount of fees accruing from the 
 office. Smith «. New York, 37 N. Y. 518, 1868 ; Hadley v. Mayor, 33 N. Y. 
 WZ, ^Ql, per Denio, C. J.; Benoit ®. Wayne County, 30 Mich. 176, Oooley, 
 J., dissenting. It has, however, several times been decided in California 
 that the sala/ry annexed to a public office is incident to the title to the office, 
 and not to its occupancy and exercise, and that the right to compensation is 
 not affected by the fact that an usurper, officer de facto, has discharged the 
 duties of the office. Dorsey «. Smith, 28 Cal. 21; Stratton ». Oulton, 11. 
 44 ; Carroll v. Siebenthaler, 37 76. 193, 1869 ; approved Meagher s. County, 
 5 Nev. 244, 1869. See People v. Miller, 34 Mich. 458, 1873; Benoit n. 
 Wayne County, supra; Philadelphia «i Given, 60 Pa. St. 136, per Thompson, 
 C. J. 
 
 The legal incumbent of a municipal office rendering service is entitled to 
 compensatiQn until he has actual notice of hia removal. Jarvis v. Mayor, 
 &c, of New York, 2 N. Y. Leg. Obs. 396. As to notice: Field v. Common 
 
Ch. IX.] LIABILITY OF OFFICEE. 293 
 
 Liability of the Officer to the Corporation and to Others. 
 
 % 175. Public officers, elected pursuant to statute by a 
 municipal corporation, are not the servants or agents of the 
 corporation in such a sense as will enable the corporation, 
 in the absence of a statute giving the remedy, to recover 
 damages against such officers for negligence in the dis- 
 charge of their official duty. If the corporation can recover 
 at all in such an action, it can only be for want of fidelity 
 and integrity, not for honest mistakes.' To protect the 
 
 wealth, 32 Pa. St. 478, 1849; ^pflsrteRamshay, 83 Eng. C. L. 174, 1853; Ex 
 parte Hennen, 13 Pet. 230 ; Queen b. Governors, &c., 8 Ad. & El. 683 ; Page «. 
 Hardin, 8 B. Mon. (Ky.) 648; Bowerbank ». Morris, Wall. C. 0. R. 118. In 
 The Oity v. Given, 60 Pa. St. 136, the plaintiff acted as city commissioner 
 for some months, when it was decided that he had not been duly elected, 
 and, in a suit brought for his salary, it was held that he could not recover, 
 because he had not qualified by giving security. In an action by the right- 
 ful officer on a supersedeas bond given in a quo warranto proceeding by an 
 intruder, the measure of damages is the full amount of the salary (where 
 the office has a fixed salary) received by the intruder pending the opera- 
 tion of the supersedeas. United States v. Addison, 6 "Wall. 391. See people 
 e. Miller, 34 Mich. 458, 1873. 
 
 Respecting liability of an intruder to the officer de jure for salary and 
 ■ fees received, and when an action will lie for money had and received. 
 Glascock V. Lyons, 20 Ind. 1; Douglas v. State, 31 Ind. 479; Dorsey v. 
 Smythe, 38 Cal. 31; Stratton v. Oulton, lb. 44; City v. Given, 60 Pa. St. 
 186 ; Allen v. McKean, 1 Sumn. 117 ; State «. Shei-wood, 43 Mo. 179 ; Huntei 
 e. Chandler, 10 Am. Law Reg. (N. S.) 440, and note; Boyter v. Dodsworth, 
 6 Term R. 681; Sadler «. Evans, 4 Burr. 1984; Peoples. Miller, 24 Mich. 
 458. 
 
 ' Parish in Sherburne ». Piske, 8 Gush. 364, 366, 1851, opinion by 
 Bewey, J.; cites White v. Philipson, 10 Met. 108; Trafton «. Alfred, 3 
 Shepl. 358 ; Kendall v. Stokes, 3 How. 87 ; Commonwealth v. Genther, 17 
 Serg. & Rawle, 135 ; Wilson v. Mayor, &Cr of New York, 1 Denio, 595 ; 
 Hancock «. Hazzard, 12 Cush. 112; Minor v. Bank, 1 Pet. (U. S.) 46, 69. 
 Where a surveyor of highways has, by law, a discretion as to the kind of 
 repairs, and exercises his best judgment and acts in good faith, the corpo- 
 ration for which he acts is bound, and cannot defeat his recovery for the 
 price of materials furnished by evidence to show that the repairs were not, 
 in fact, necessary. But it would be otherwise if fraud or corruption were 
 shown. Palmer «. Carroll, 4 Post. (N. H.) 814, 1851. See, also, People v. 
 Lewis, 7 Johns. 73 ; Seaman «. Patten, 2 Caines, 312. 
 
 Personal liability of municipal Councillors to the corporation for misa])- 
 propriation of its funds : see municipality of East Nissouri e. Horseman, 16 
 
2M MTJlSriCIPAL CORPOEATIONS. [Ch. IX. 
 
 public, however, oflBcers are usually required to give bonds, 
 in which case they are, of course, liable, as we have seen, 
 according to the conditions thereof. By charter, the power 
 to appoint policemen was conferred on a board of police, 
 composed of the mayor and recorders, and this board 
 was authorized to discharge policemen, for cause, and to 
 " decide on aU police maters pertaining to appointments, 
 dismissals, &c., finally and without appeal." In an action 
 for wages, brought against the ci^ by a policeman, who 
 claimed that he had been appointed for a year and dis- 
 missed at the end of a month, without good cause, the 
 Supreme Court decided that the board having dismissed the 
 plaintiff for what it deemed sufficient cause, its decision was 
 final, and the sufficiency of the cause of dismissal was not 
 inquirable into in the action.' 
 
 § 176. In this country the officers of municipal cor- 
 porations are, in many respects, public officers, being 
 charged with duties which concern both the corporation and 
 the public at large. The duties and liabilities of such 
 officers to the corporation fall within the scope of this 
 treatise, and have been considered. But their individual 
 rights and their liability to others, upon contracts and for 
 torts, are not, strictly speaking, embraced in the plan of the 
 work. It has, however, been thought, that a brief reference 
 to some of the more important rules and adjudications on 
 this subject was desirable, and this has accordingly been 
 made in the note." 
 
 Upper Canada Q. B. 588. Of treasurer for paying money on an illegal order 
 or resolution : Daniels «. Burford, 10 Up. Can. Q. B. 481. 
 
 5 Nolan «. New Orleans, 10 La. An. 106, 1855. 
 
 " Stjits. — ^Public officers ftave, in general, a power to sue commensurate 
 with their duties. If officers of a corporate body, suit should be brought 
 in the name of the corporation, unless the statute direct otherwise. Stock v. 
 State, 6 Ind. 113 ; State ». Rush, 7 It. 331 ; Supervisors v. Stimpson, 4 Hill, 
 136, and cases cited; Todd v. Birdsall, 1 Cow. 360, and cases cited in note; 
 Jansen «. Ostrander, 1 Cow. 670; Cornell s. Guilford, 1 Denio, 510; com- 
 pare Commissioners «. Perry, 5 Ohio, 57 ; Barney v. Bush, 9 Ala. 345 ; Van 
 Keuren v. Johnson, 3 Denio, 183. But it has been held, that a public officei; 
 cannot, without the aid of a statute, maintain a suit in his own name, al- 
 though he may have taken a note or contract to himself individually, if the 
 consideration for such a note or contract be a liability to the state. The 
 
Ch. IX.] AJttOTION AND DISFRANCHISEMENT. 295 
 
 Amotion and Disfranchisement. 
 
 % 177. The elementary works treat of Amotion and Dis- 
 francliisement together: indeed, formerly, the important 
 
 ground of tMs rule is public policy to discourage public ofScers from trans- 
 acting, in their own name, the business of the public. Hunter v. Field, 20 
 Ohio, 340, 1851 ; Irish e. Webster, 5 Greenl. (Me.) 171 ; Gilmore ». Pope, 5 
 Mass. 491. If the obligation is taken to the officer as agent, or in his 
 official capacity, the action is properly brought in the name of the govern- 
 ment beneficially interested. Dugan v. United States, 3 "Wheat. 172; S. P. 
 United States b. (Boice, 3 McLean, 352; United States «. Barker, 1 Paine 
 C. Ct. 152 ; 2 Parsons on Notes and Bills, 451, and other cases cited. An . 
 action by a public officer does not abate by the expiration of his term of 
 office. The suit may be continued in his name until its termination, or, by 
 the practice in many of the States, his successor may be substituted. Kellar 
 e. Savage, 20 Maine, 199, 1841 ; Todd ». Birsdsall, 1 Cow. 260 ; Haynes ». 
 Covington, 13 Sm. & Mar. 408; Grant •». Faucher, 5 Cow. 369; Colgrove v. 
 Breed, 2 Denio, 125; Manchester v. Herrington, 10 N. T. 164; Upton v. 
 Starr, 3 Ind. 538. 
 
 EvTDBNCB. — Where the authority of an officer of a public corporation 
 comes incidentally in question in an action in which he is not a party, it is 
 sufficient to show that he was an acting officer, and the regularity of his 
 appointment or election cannot be made a question. Proof that he is an 
 acting officer is prima facie evidence of his election or appointment, as well 
 as of his having duly qualified. But if he relies alone on proof of a due 
 election or appointment, such election or appointment must be legally es- 
 tablished. Pierce v. Richardson, 37 N. H. 306, 1858 ; Tucker v. Aiken, 7 
 N. H. 113; Johnson v. Wilson, 2 N. H. 202; Baker v. Shephard, 4 Fost. QS. 
 H.) 212, 1851, and cases cited; Bean v. Thompson, 19 N. H. 290; Blake d. 
 Sturdevant, 12 N. fl. 573; Burgess v. Pue, 2 Gill (Md.) 354. An officer, 
 even when justifying, may prima fade establish his official character by 
 proof of general reputation, and that he acted as such officer. Johnson «. 
 Steadman, 3 Ohio, 94 ; followed, Eldred ». Seaton, 5 It. 215 ; Berryman v. 
 Wise, 4 Term R. 366 ; Potter «. Luther, 6 Johns. 431 ; Wilcox o. Smith, 5 
 Wend. 233; People ®. McKinney, 10 Mich. 54. But it is not enough to 
 show that the officer was acting officially in the particular instance in 
 controversy in the case upon trial, and in which his authority is ques- 
 tioned. Hall «. Manchester, 39 N. H. 295, 1 859. An acting officer is es- 
 topped to dispute the validity of his own appointment and election. State 
 B. Sellers, 7 Rich. Law, 368; State ». Mayberry, 3 Strob. 144. 
 
 Acts anb Dbolaeations of officers, when evidence for or against the cor- 
 poration. Mitchell v. Rockland, 41 Me. 363 ; Jordan «. School District, 38 
 lb. 1864; Morrell c. Dixfield, 30 Ih. 157; County t>. Simmons, 5 Gilm. (111.) 
 516; Railroad Company b. Ingles, 15 B. Mon. 637; Glidden «. Unity, 33 
 N. H. 577 ; Toll Co. v. Betsworth, 30 Conn. 380 ; Barnes «. Pennell, 2 H, 
 
296 MUNICIPAL C0EP0RATI0N8. [Ch. IX. 
 
 distinction between the two was not observed. Amotion re- 
 lates alone to officers; disfranchisement, to corporators or 
 
 of L. Cas. 497. See chapter on Corporate Records and Documents, post. 
 The acta of the officers of municipal corporations in the line of their official 
 duty, and within the scope of their authority,' are binding upon the body 
 they represent, and deelaraUons and admissions accompanying such acts as 
 part of the res gestm, calculated to explain and unfold their character, and 
 not narrative of past transactions, are competent evidence against the cor- 
 poration. To render such declarations and admissions evidence, they must 
 accompany acts, which acts must be of a nature to bind the corporate 
 body. Glidden v. Unity, 33 N. H. 571, 1856. 
 
 Notice. — Where the officers or agents or a public corporation have no 
 powers or duties with respect to a given matter, their individual knowledge,- 
 or the individual knowledge of the inhabitants or voters, do not bind or 
 affect the corporation. Harrington ®. School District, 30 Vt. 155, 1858 ; An- 
 gell& Ames Corp. sec. 339; Hayden v. Turnpike Co., 10 Mass. 397. The 
 mayor is chief executive officer of the city, and notice to him of a nuisance 
 is sufficient, when it would not be to the clerk, who is only a recording offi- 
 cer, not authorized to act upon the notice. Nichols «. Boston, 98 Mass. 39, 
 1867; ante, sees. 147, 148. 
 
 Indictment of Public and Cobpokate Ofeicbbs. — "A public .officer," 
 it is declared in North Carolina, " instrusted with definite powers to be ex- 
 ercised for the benefit of the community, who wickedly abuses or fraudu- 
 lently exceeds them, is punishable by indictment." State v. Glasgow, North 
 Car. Conf. R. 186, 187 (indictment of secretary of state) ; State ». Justices, 
 &c., 4 Hawks (North Car.) 194 (when county authorities indictable for non- 
 repair of jail) ; see Paris «. People, 27 111. 74 ; State v. Commissioners of 
 Fayetteville (non-repair of streets), 3 North Oar; Law, 617 ; i 6. 633 ; 2 Murph. 
 871. But see as to street commissioner: Graffiirs v. Commonwealth, 3 Pa. 
 (Penn. & W.) 503; State «. Commissioners, Walk. (Miss.) 368. Indictment 
 of municipal officers for violation of charter. People ®. Wood, 4 Park. Cr. 
 R. 144; Hammer n. Covington, 3 Met. (Ky.) 494; State ». Shelbyville, 4 
 Sneed (Tenn.) 176j State «. Shields, 8 Blackf. 151 ; Lathrop v. State, 6 
 Blackf. 502; State v. Burlington, 86 Vt. 531. Requisites of indictment tat 
 non-performance of official duty. Waters v. People, 13 Mich. 44Q; States. 
 Mayor, 11 Humph. 317; State «. Commisrioners, 3 Dev. 345; 3 Chitty 
 Crim. Law, 586, 606,, for precedents of indictments against corporations. 
 Onminal information against municipal officers. Willc. Corp. 315-318; 
 Rex V. Watson, 3 Term R. 304 ; lb. 198. Indictment against municipal cor- 
 vorations. See chapter on Remedies against Illegal Corporate Acts, post, 
 sees. 745, 747. 
 
 Liability for Monetb Received.— A public or municipal officer, who 
 is required to account for and pay over money that comes into his hands, ia 
 liable, though it be stolen without his fault, unless relieved from this re- 
 sponsibility by statute. Halbert ®. State, 33 Ind. 135, 1864; Muzzy ®. Shat- 
 tuck, 1 Denio, 233 ; State «. Township, 38 Ind. 86 ; Hancock v. Hayard, 13 
 Gush. 113; United States ®. Prescott, 3 How. (U. S.) 578; Commonwealths 
 
Gh. ES.] amotion and disfranchisement, 397 
 
 members of the corporation. Amotion, therefore, is the 
 removal of an officer in a corporation from his office, bat it 
 
 Ooneley, 4 Pa. St. 373; State v. Harper, 6 Ohio St. 707. And a direction 
 to a public officer (e. g. a county treasurer) how and where to keep the money 
 (e. ^. in a sale provided by the county), if made by a board or authority 
 having no legal control or power over the matter, will not be a defence to 
 such officer if the money is stolen from the safe. Halbert i>. State, supra. 
 It is no defence to a tax collector to recover moneys received by him, — that 
 he received the money on account of taxes which the legislature had no 
 constitutional power to impose. Waters «. States, 1 Gill (Md.) 303, 1848 ; 
 Thompson v. Stickney, 6 Ala. 579 ; Evans v. Trenton, 4 Zabr. 764. Treasurer 
 held not entitled to credit for money paid contractors upon warrants not 
 drawn according to the charter. McCormick «. Bay City, 23 Mich. 4S7. 
 
 Liability on Contbacts.— Public and municipal officers are not person- 
 ally liable on contracts within the scope of their authority and line of duty, 
 unless it is very apparent that they intended to bind themselves person- 
 ally. Macbeth v. Haldeman, l,Term E. 173, and Hodgden v. Dexter, 1 
 Cranch, 145, are the leading cases. The question is, to whom was the 
 credit given ? — did the defendant contract in his public or private capac- 
 ity ? See Olney v. Wickes, 18 Johns. 133, where the promise was held not 
 personal. Compare King «. Butler, 15 Johns. 381; Gill ». Brown, 13 Johns. 
 385; "Walker v. Swartout, Ih. 444; Mott v. Hicks, 1 Cow. 513; Sheffield ». 
 Watson, 3 Gaines, 69; commented on, 12 Johns. 448; Brown «. Kundlett 
 (full discussion), 15N.H. 360, 1844, and cases cited and criticised; Belknap 
 V. Rheinhart, 2 Wend. 375; Adams «. Whittlessey, 3 Conn. 560; 8 «. 339; 
 Hammerskold «. Bull, et al. (" state capitol commissioners "), 11 Rich. (South 
 Car.) Law, 493 ; Lesley <b. White, 1 Speers, 31 ; Young «. Commissioners of 
 Roads, 3 Nott & McC. 537; Miller v. Ford, 4 Rich. (South Car.) Law, 376; 
 S. C, 4 Strob. 213; Copes®. Mathews, 10 Sm. & Marsh. 398; Tucker*. Short- 
 er, 17 Geo. 630 ; Hall v. Cockrell, 38 Ala. 507, 1856 ;. but qumre, as to its cor- 
 rectness. In Nickerson ». Dyer, 105 Mass. 320, the agents or committee of 
 a town were held not to be personally liable. Post, chap.. XIV. In the 
 absence of a provision to the contrary, an officer of a municipal corporation 
 is not disabled from entering into a contract with it. Municipality v. Cald- 
 win, 3 Rob. (La.) 368, 1842. It is held, that where the officers of a public 
 or municipal corporation, acting officially, and under an innocent mistake 
 of the law, in which the other contracting party equally participated, with 
 equal opportunities of knowledge, neither party at the time looking to per- 
 sonal liability, the officers a/re not, in such case, personally liable, nor is the 
 corporation liable. Houston ®. Clay County (unauthorized contract by town 
 ship trustees for the erection of a bridge), 18 Ind. 396, 1862 ; Boardman v, 
 Hayne, 29 Iowa, 339, 1870 ; Duncan v. Niles, 33 111. 532, 1868, and cases 
 cited; Ogden ®. Raymond, 22 Conn. 379, 1858; Dameron v. Irwin, 8 Ire. 
 Law. 421, 1848 ; Hite v. Goodman, 1 Dev. & Bat. Bq. 364, 1836 ; Ives v. 
 Hulet, 13 Vt. 814, 1840 ; Stone v. Huggins, 28 /*, 617 ; Tucker v. Justices, 
 13 Ire. (Law) 434 ; Dey v. Lee, 4 Jones (Law) 338 ; Tucker !• Shorter, 17 
 Geo. 630; Copes v. Mathews, 10 Sm. & Marsh. 398; HfiU v. Cockrell, 38 
 
298 MUNICIPAL COEPORATIONS, [Ch. IX. 
 
 leaves Mm still a member of tlie corporation, Disfrancliise- 
 ment is to destroy or take away the franchise or right of 
 
 Ala. 507 ; compare Potts v. Henderson, 3 Ind. (Carter) 337, 1850. Liability 
 under statute, of trustees or directors of public works who make unauthor- 
 ized contract: Higgins ®. Livingstone, 4 Dow. 341; Parrott v. Eyre, 10 
 Bing. 388 ; Wilson v. Goodman, 4 Hare, 54. 
 
 Tax Collbctob's Liability to Third Pbksons. — Tax collector liable ia 
 trespass who seizes without color of law for tax assessment, or under an un- 
 constitutional law. McCoy ». Chillicothe, S Ohio, 370 ; Eagnet «. Wade, 4 
 lb. 107; Loomis v. Spencer, 1 Ohio St. 150. But a collector whose warrant 
 is in due form, with nothing on its face to show the illegality of the tax or 
 the want of authority in the assessors or previous officers, will be protected 
 in executing it, even though the tax be not lawfully assessed. Chegary v. 
 Jenkins, 1 Seld. "(N. Y.) 376, 1861 ; affirming S. C, 3 Sandf. Sup. Ct. R. 409;. 
 Abbott ». Yost, 3 Denio, 86 ; Savacool v. Boughton, 5 Wend. 170, 1880, 
 leading case ; Downing v. Rugar, 31 Wend. 178, warrant of justice J;o over- 
 seers of poor; Alexander v. Hoyt, 7 Wend. 89; Clark v. Halleck, 16 Wend. 
 607 ; People v. Warren, 5 Hill, 440 ; Webber v. Gray, 34 Wend. 440 ; Loomis 
 V. Spencer, 1 Ohio St. 153 ; Little v. Merritt, 10 Pick. 547 ; see Suydam v. 
 Keys, 18 Johns. 444; Gale v. Mead, 3 Denio, 160; lb. 333; Eastons. Callen- 
 der, 11 Wend. 90,; Clark «. Norton, 49 N. Y. 348. 
 
 LiABiiiiTT 01' Public Officers for Acts of Subordinatbs. — ^Public 
 officers are not liable for the misconduct or malfeasance of such persons as 
 they are obliged to employ ; the reason here being, that the maxim ,of res- 
 pondeat superior has no application, there being no freedom of choice as to 
 the selection and control of agents. Bailey «. Mayor, &c., 8 Hill (N. Y.) 531, 
 1843; affirmed in error, 3 Denio, 433, 1845; Hall ». Smith, 3 Bing, 156; 
 Pritchard v. Keefer, 53 111. 117; Humphreys v. Mears, 1 Man. & Ryl, 187; 
 Bolton V. Crowther, 3 Dowl. & Ryl. 195 ; Harris v. Baker, 4 Maule & Selw. 
 27. See, also: Lane v. Cotton, 1 Salk. 17; Story on Agency, 330, et seq.-; 
 Story on Bail. 300, 303 ; Martin v. Mayor, &c., 1 HiU, 545, 551 ; Mayor, &c. 
 V. Furze, 8 HUl (N. Y.) 613, 618. 
 
 Liability of Public Officers for Acts Judicial in their Natuee. — 
 Officers are not liable for honest errors or mistakes of judgment as to acta 
 within the scope of their authority, judicial in their nature, in the absence 
 of malice, or corruption, or statute imposing the liability. Ramsey ». Riley, 
 13 Ohio, 157 ; Stewart «. Southard, 17 lb. 403 ; Conwell v. Emrie (road 
 supervisor), 4 Ind. 300 ; Bartlett v. Crozier -(highway overseer), 17 Johns. 
 439 ; Freeman v. Cornwall (highway overseer), 10 lb. 470 ; Johnson ». Stan- 
 ley, 1 Root (Conn.) 245; Township ». Carey, 3 Dutch. 377; Waters «. 
 Waterman, 3 lb. 314 ; Craig b. Burnett, 33 Ala. 738 ; State b. Dunnington, 
 13 Md. 840 ; Commissioners «. Nesbitt, 11 Gill & J. 50. Liability where 
 the officer's function is j^asi judicial. Wilkes b. Dinman, 7 How. 89, where 
 the subject is much considered, and malice or willful wrong held to be 
 essential. Waldron ®. Berry, 51 N. H. 136, 1871. The members of a city 
 council are not individually liable, in a civil or criminal action, for acts in- 
 volving the exercise of discretion, unless they act corruptly. Walker v. 
 
ch. ex.] amotion and disfranchisement. ^ 299 
 
 being any longer a member of the corporation.' American 
 municipal corporations are, in many respects, essentially 
 
 Hallock, 33 Ind. 339, 1869; Baker «. State, 37 Ind. 485. Pullie duty, not 
 ordinarily enforceable by private action against the officer, unless given by 
 statute. Foster v. McKibben, 14 Pa. St. 168. MimppUcation of public funds 
 by officer. Township, &c. v. Linn, 86 Fa. St. 481. Neglect to take a bond 
 required by law. Boggs ». Hamilton, 3 Const. (South Car.) R. 381 ; State 
 t). Dunnington, 13 Md. 840. A municipal officer misled into issuing ordei 
 not liable to the holder. Boardman v. Hayne, 39 Iowa, 389. 
 
 Liability for Tobts. — Alvord «. Barrett (town clerk), 16 Wis. 175 ; 
 American Print Works ®. Lawrence, 3 Zabr. 590, 601. No liahility for acts 
 done by a public officer under lawful authority and in a proper manner. 
 lb. Full discussion and cases cited by Carpenter, J. S. P. in S. C, 1 Zabr. 
 348, 360, per Green, C. J.; Caldins v. Baldwin, 4 Wend. 667, and cases 
 cited. How far protected by an unconstitutional statute. lb. Liability 
 for nonfeasance or misfeasance, where the duty is specific, imperative, and 
 not judicial, in its nature. Griffith v. FoUett, 20 Barb. 630, 1855; Weaver 
 V. Devendorf, 3 Denio, 117 ; Harmon v. Brotherson, 1 Denio, 537 ; lb. 595 ; 
 Adsit V. Brady, 4 Hill (N. T.) 630, 1843. The principle on which a public 
 officer is held personally liable for injuries resulting from improper execu- 
 tion of official duties, is well stated in Nowell v. Wright, 8 Allen, 166. In 
 Amy «. Supervisors, 1 Wall. 136, 1870, where county supervisors were held 
 to be personally liable for failing to levy a tax, as commanded by the 
 court, to pay the plaintiff's judgtaent, Mr. Justice Swayne,^ statiog the prin- 
 ciple of the decision, says: "The rule is well settled, that where the law 
 requires absolutely, a ministerial act to be done by a public officer, 'and he 
 neglects or refuses to do such act, he may be compelled to respond in damages 
 to. the extent of the injury arising from his conduct; mistake of duty and 
 honest intentions will not excuse the offender." Liability ion fraud: 
 Oakland ». Carpenter, 13 Cal. 540. Vast, sees, 147 n., 730 n. A ministerial 
 officer, acting in good faith, is liable for actual, but not for exemplary 
 damages, for illegal acts injurious to private persons. Tracy v. Swartout, 
 10 Pet. (U. S.) 80, 1886 (action against collector of customs); lb. 137; 
 Jenner v. JoUffe, 9 Johns. 383. A provision of law making a civil corpo- 
 ration liable "for the illegal doings and defaults ''of its officers (there 
 being no provision that the officers shall not also remain liable) does not 
 deprive the party injured of his right to proceed, personally, against the 
 officer or agent who committed the injury. Both are liable. Rounds v. 
 Mansfield, 38 Maine (3 Heath) 586, 1854. Election offlAsers for refusing vote, 
 when liable. Gordon ». Farrer, 3 Doug. (Mich.) 411 ; Carter ». Harrison 5 
 
 » 3Kyd, 50-94; Willc. 345-376; Glover, chap. XVI. pp. 337-338; 
 Grant, 350, 363. And see 3 Kent Com. 378, 397, where amotion and dis- 
 franchisement are used as convertible terms. Angell & Ames Corp. chap. 
 XII. where the cases ^re very fully collected, and the doctrine of the Eng 
 lisb decisions satisfactorily presented. 
 
300 MUNICIPAL CORPORATIONS. [Ch. IX. 
 
 diflferent in their constitution from the old English muni- 
 cipal corporations, under which most of the cases on the 
 subject of Amotion and Disfranchisement, usually cited in 
 the books, arose. These cases are often inapplicable here, 
 and should, it is believed by the author, be followed by 
 our courts as precedents with unusual caution, and only 
 when they rest upon or declare principles general in their 
 nature, and which embrace in their operations municipal 
 institutions possessing the distinctive characteristics of 
 ours. Here, the inhabitants of the municipality are the 
 corporators ; certain of those inhabitants (usually all of 
 the adult male residents), have the right to elect the legis- 
 lative or governing body, and also, freq^uently, the other 
 more important officers of the corporation. It would seem 
 that the English doctrine of disfranchisement of a corpo- 
 rator or member has no application to our municipal corpo- 
 rations, whether the corporator be considered the "inhab- 
 itant," or the " voter.' 
 
 , 55 
 
 § 178. Whether the power of disfranchisement be inci- 
 dental to the corporation, or must be expressly conferred, 
 respecting which there is in England some contrariety of 
 view,' we need not inquire, for here (were there no constitu- 
 tional obstacles) the legislature never bestows upon the 
 council or governing body which represents the corporation 
 the right to disfranchise the citizen or corporator, and it is 
 clear that such a formidable and extraordinary authority 
 does not exist, and cannot be exercised by the council, as 
 an incidental or implied right. To burn or destroy the 
 charters of the corporation, or willfully to falsify its books, 
 were in England, considered such breaches of duty on the 
 part of a corporator as would work a forfeiture of the cor- 
 
 Blackf. 138; Jeffries «. Ankeny, 11 Ohio, 374; compare Ramsey v. Riley, 18 
 Ohio, 157. See Jenkins ». Waldron, 11 Johns. 114; Lincoln v. Hapgood, 
 11 Mass. 350 ; Bridge v. Lincoln, 14 lb. 367. Oollection and revenue officer) 
 not liaWe to the party paying for money voluntarily paid to them. Elliott 
 e. Swartout, 10 Pet. 137, 1886 ; Thompson v. Stickney, 6 Ala. 579. When 
 liable in trespass. McCoy ». ChUlicothe, 3 Ohio, 370; Loomis ». Spencer, 
 1 Ohio St. 153. Beaording officer. Ramsey ®. Riley, 13 Ohio, 157 ; approved, 
 Stewart v. Southard, 17 11. 402. 
 
 ' Grant, 263. " This right [of disfranchisement] has been but sparingly 
 exercised, though it is undoubtedly an incident to every corporation, with, 
 
Ch. IX.] AMOTION AND DISFRANCHISEMENT. 301 
 
 pora,te character,' there being according to Lord Coke, "a 
 tacit condition annexed to the franchise, which, if he break, 
 he may be disfranchised."' Snrely, there is here no such 
 tacit condition annexed to the right of a resident of a muni- 
 cipality to be and remain a corporator, though there may 
 be a similar condition annexed to municipal oflBces. Will- 
 fully to destroy or falsify the charter or books of a muni- 
 cipal corporation is an act which is punishable by the 
 criminal codes of the different states, and if the offender is 
 convicted and imprisoned, it may result as an incident of 
 such conviction that he will cease, for the time, to be a resi- 
 dent, and hence, vrill cease to be a member of the corpora- 
 tion ; but the corporation itself has no power' to disfran- 
 chise him, that is, to deprive him of the privileges and 
 rights, without absolving him from the liabilities of other 
 . citizens, while he remains within the limits of the munici- 
 pality, 
 
 179. The power to amove a corporate officer from his 
 oflBce, for reasonable and just cause, is one of the common 
 law incidents of all corporations.' This doctrine, though 
 
 perhaps, some exceptions in cases of trading and monetary bodies." JJ. 
 Willcock (271, pi. 709) denies that it is an incidental right, and claims that 
 the rule laid down in the second resolution (Bagg's Case) on this point, that 
 "no freeman of any corporation can be disfranchised by the corporation, 
 unless they have authority .to do so by the express words of the charter, or 
 by prescription," is the law. Mr. Glover simply adopts Mr. Willcock's lan- 
 guage. Glover, 335. Mr. Kyd's exposition of the second resolution in 
 Bagg's Case, 2 Kyd, 53. And see leading case of Rex«. Richardson, 1 
 Burr. 517, which was a case of amotion, but has been often taken as assert- 
 ing an incidental power to disfranchise for cause as well as amove. Angell 
 & Ames, sees. 408, 409 ; see generally. Commonwealth v. St. Patrick's So- 
 ciety, 3 Binn. 448, 1810 ; Evans v. Philadelphia Clubj 50 Pa. St. 107 ; Hop- 
 kinson «. Marquis of Exeter, Law Rep. 5 Eq. 63 ; State s. Georgia Med. Soc, 
 Am. Law Reg. (N. S.) 533, Mr. Mitchell's note. 
 
 1 Mayor o. Pilkiuton, 1 Keb. 597 ; Rex v. Chalke, 5 Mod. 357 ; 1 Lord 
 Raym. 336 ; Grant Corp. 365. 
 
 " 13 Coke. 98, a. 
 
 ' Rex v. Richardson, 1 Burr. 517; Rex s. Liverpool, 3 Burr. 733; Rex v. 
 Doncaster, 3 Burr. 738; Jay's Case, 1 Vent. 303; Lord Bruce's Case, 3 Stra. 
 819; Rex v. Ponsonby, 1 Ves. Jr. ; Rex v. Lyme Regis, Doug. 153; Rex ®. 
 Tidderly, 1 Sid. 14, per Hale, C. B. ; Rex «. Taylor, 3 Salk. 331 ; 1 Roll. Rep. 
 409; S. C, 3 Bulst. 189; Rex ®. Chalke, 1 Lord Raym. 335; Rex v. Heiven, 
 
3(® MUNICIPAL CORPORATIONS. [Ch. EX. 
 
 declared before,' has been considered as settled, ever sincfl 
 Lord Mansfield's judgment in tlie well-known case of the 
 King against Richardson.^ It is there denied' that there 
 can be no power of amotion unless given by charter or pre- 
 scription ; and the contrary doctrine is asserted, that from 
 the reason of the thing, from the nature of corporations, 
 and for the sake of order and government, the power is in- 
 cidental. 
 
 § 180. But the power to amove, like every other inci- 
 dental power, is incident to the corporation at large, and 
 not to any select body or particular part of it, and unless 
 delegated to a select body or part, it must be exercised by 
 the whole corporation, and at a corporate asserably regu- 
 larly and duly convened,' The power to hold such an as- 
 sembly is, however, implied in the power of amotion.* 
 
 § 181. By the corporation at large, as here used, is 
 meant the different ranks and orders which compose it, in- 
 cluding the definite and indefinite bodies. The essentials in 
 such a corporation of a valid corporate assembly have else- 
 where been described. Our corporations, however, have no 
 
 3 Term R. 773; Reg. ■». Newbury, 1 QueeB's BencU, 751; 2 Kyd, 60-94, 
 where the old cases are digested ; Glover, chap. XVI. j Willc. 346 ; Grant, 
 240 ; Angell & Ames, chap. XII. ; 2 Kent Com. 397. 
 
 » Lord Bruce's Case, Stra. 819, 830; Tidderley's Case, 1 Sid. U^perEale, 
 C. B. 
 
 ' !^px V. Richardson, 1 Burr. 517 (31 George 11.) " It is necessary to the 
 good order and government of corporate bodies that there should be such 
 power [amotion], as much as the power of making by-laws." lb. 
 
 ' Lord Bruce's Case, 2 Stra. 819 ; Rex ». Lyme Regis, Doug. 153 ; Rex v. 
 Richardson, supra; Rex ». Doncaster, Say. 88; Rex «. Taylor, 8 Salk. 331; 
 Rex «. Feversham, 8 T. R. 356 ; Fane's Case, Doug. 153 ; Willc. 246, pi. 639 ; 
 Grant, 240, 241 ; 2 Kyd, 56 ; GlOver, 339 ; State «. Jersey City, 1 Dutch. (N. 
 J.) 586, 1856. Even if the right to elect an officer be in a particular person 
 or select class, the power to amove is not incidental to it, but unless ex- 
 pressly changed or limited by charter, it belongs to the corporation at large. 
 Lord Mansfield seemed to be of opinion that it was competent to transfer 
 this power from the whole body to a select body by an ordinance, or by 
 law. Bagg's Case, 11 Co. 99, a; Rex «. Richardson, 1 Burr. 539. But this 
 question seems not to have been directly determined! Willc. 347, pi. 634; 
 n. 248, pi. 685; State v. Jersey City, 1 Dutch. (N. J.) 536. 
 
 ♦ Fane's Case, Doug. 153; Rex v. Lyme Regis, Tb. 149. 
 
Ch. rS.] AMOTION AND DISFKANOHISEMENT. 303 
 
 ranks, orders, or integral parts corresponding strictly to the 
 constitution of an old English corporation. Her« the com- 
 mon council, or the elective governing body (whatever name 
 be given to it), exercises all of the powers of the incorpo- 
 rated place. Has the council, as the representative of the 
 corporation, the incidental powers of a corporation, such as 
 the power to amove, or the power to ordain by-laws ? or is 
 the council in the nature of a select body, possessing no 
 right to exercise any of the ordinary incidental powers of 
 the corporation, unless expressly authorized by charter or 
 legislative grant ? The question not being judicially settled 
 as to our municipal corporations, the opinion is ventured 
 that, in the absence of an express grant or statute conferring 
 or limiting the power, the common council of .one of our 
 ordinary municipal corporations, in the absence of any ex- 
 press or implied restriction in the charter, does possess the 
 incidental power not only to make by-laws, but, for cause, 
 to expel its members, and, for cause, to remove corporate offi- 
 cers, whether elected by it or by the people. Whatever ne- 
 cessity or reason exists for the right of amotion at common 
 law with respect to the corporation at large, exists here with 
 respect to that authorized body by which alone the corpora- 
 tion acts, and which exercises all its powers and functions. 
 All of the inhabitants cannot meet and act in their primary 
 capacitj'-, except in organizations like the towns in the New 
 England states, and if the right of amotion exist at all, it 
 must be exercised by the councU or governing body of the 
 corporation. If it does not exist in the council, it cannot 
 be delegated to it by an ordinance or by any act of the cor- 
 poration, though if the right does exist, its exercise may, 
 of course, be regulated by ordinance or by-law.' 
 
 » See, generally, WiUard's Appeal, 4 Rh. Is. 597 ; State, &c. ». Trustees, 
 &c., 5 Ind. 89; State «. Bryce, 7 Ohio, part n. p. 82; Commonwealtli s. St. 
 Patrick's Society, 3 Birni. (Pa.) 448 ; Commonwealth v. Buasier, 5 Serg. & 
 Rawle, 451; Commonwealth v. Guardians, &c.,6 Serg. & Bawle, 469; Com- 
 monwealth V. Sutherland, 3 Serg. & Rawle, 145 ; Johns v. Nicholls, 3 Ball. 
 184; 1 Teates, 80; People «. Comptroller, &c., 20 Wend. 595; State, &c. v. 
 Lingo, 26 Mo. 496; Fawcett v. Charles, 13 Wend. 473; Hoboken ®. Gear, 3 
 Dutch. 365; People r>. Board of Trade, 45 111. 112, 1867; Neall'i). Hill, 16 
 Cal. 145 ; State v. Chamber of Commerce, 20 Wis. 63 ; People v. Medica 
 Society, 34 Barb. 570; Evans a/Philadelphia Club, 50 Pa. St. 107 ; State «. 
 Georgia Medical Society, 8 Am. Law Reg. (N. S.) 533, and note ; Smith ». 
 
304 MUNICIPAL CORPORATIONS. [Ch. EX. 
 
 § 182. A provision in a city charter vesting tlie board 
 of aldermen with the sole power to try all impeachments 
 of city officers, the judgment only extending to removal 
 and disqualification to hold any corporate office under the 
 charter, is not unconstitutional as authorizing the exercise, 
 of jndicial powers by a legislative or municipal body, but is 
 rather the exercise of a power necessary for its police and 
 good administration.' 
 
 § 183. When the terms under which the power of 
 amotion is to be exercised are prescribed, they must he 
 pursued with strictness.'' Whether, if the power to expel 
 
 Smith, 3 Dfesaus. 557. But see State v. Jersey City, 1 Dutch. (N. J.) 536, in 
 ■which the power to expel a member of the council was expressly conferred, 
 but where Mr. Justice JPotts, delivering the opinion of the court, says: — 
 
 "The rule is well settled, that a corporation has, at common law, an in- 
 herent jurisdiction to expel a member for sufficient cause." After noticing 
 the offenses which will justify expulsion, he adds: _ " But the jurisdiction in 
 this case is not derived from the common law. The common council is not 
 the corporation, and, whatever powers a municipal corporation may have to 
 amove or expel a member at common law, it is clear that the corporation 
 itself has not, by any by-law, delegated any of them to the commop coun- 
 cil, and that body, therefore, cannot avail itself of the coriimon law juris- 
 diction, vested as an inherent right in the corporation itself, to expel a 
 member of their own body. 3 Bac. Abr. 31, title OorporaUons ; Willc. on 
 Corp. 639. The council derives its jurisdiction from the charter of the cor- 
 poration." This case rules that where, in express terms, 'the right of the 
 council to expel a member for certain causes is given, it cannot exercise the 
 power for any other cause. And it would seem to be the opinion of the 
 court, or at least of the judge delivering the opinion, that the common law 
 power of expulsion belonging to a corporation could not be exercised by 
 the common council, that body not being the corporation in which the 
 power is vested. Same principle as to private corporations. State o. 
 Chamber of Commerce, 30 Wis. 73. Compare People «. Board of Trade, 45 
 ni. 113. 
 
 ' State ®. Ramos, 10 La. An. 430. See People v. Bearfield, 35 Barb. 354 , 
 supra, sec. 139. A board of aldermen sitting in a judicial capacity as a 
 court of impeachment to try charges preferred against a city officer by 
 another branch of the municipal governing body, is a court of limited juris-' 
 diction, and if not sworn, or not sworn by an officer authorized to adminis- 
 ter oaths, their proceedings and judgment of guilty are void, and create no 
 vacancy. Tompert v. Lithgow, 1 Bush (Ky.) 176, 1866. See Eadley v. 
 Mayor, &c., 33 N. T. 608, cited infra, sec. 191, note. 
 
 ' State V. Lingo, 36 Mo. (5. Jones) 496; State ®. Trustees of University, 5 
 Ind. 77, 89, 1854; State v. Bryoe, 7 Ohio, part IL p. 83 ; State e. Chamber 
 
Oh. IX.J AMOTION AND DI8FEANCHIBEMENT, 305 
 
 or remove be given for certain causes, tMs excludes the 
 right to exercise the power in any other case, will depend 
 upon the intent of the legislature to be gathered from a con- 
 sideration of the whole charter or statute. Power to ap- 
 point " subject to removal only for," &c., clearly limits the 
 power of removal to the specified causes.' Express power 
 of expulsion or removal for specified reasons was, in New 
 Jersey and in Georgia, considered to exclude any implied 
 power, or to limit the right to the enumeratedtcauses.' 
 
 § 184. A charter of a municipal corporation gave to the 
 common council express power to " expel a member for dis- 
 orderly conduct" and one of the aldermen being guilty of 
 oflSicial corruption in receiving bribes, was, after a hearing, 
 expelled from the council. The court was of opinion that 
 the question as to the right to expel for the conduct 
 charged, depended upon the construction of the words 
 "disorderly conduct," and it held that receiving bribes for 
 his official influence and votes was disorderly conduct, within 
 the meaning of the charter.' In another case, the charter 
 
 of Commerce, 30 Wis. 63 ; Regina ». Sutton, 10 Mod. 76 ; Paston ®. Urber, 
 Hutt. 103 ; Regina v. Ricketts, 7 Ad. & El. 966 ; Regina v. Oxford, 6 Ad. & 
 El. 349; Commonwealth v. Sutherland, 3 Serg. & Rawle, 146 ; Common- 
 wealth V. Shaver, 3 Watts & S. 338. In the Queen v. Sutton, supra, so 
 strictly was a clause in a charter conferring the right of removal construed; 
 that it was held that where acts were to be done by a majority, that word 
 was to be understood as a majority of the whole corporation, and that if' the 
 oflScer whose removal was proposed was a member, it could be effected only 
 by a majority of all the members, including himself, and that his personal 
 interest did not exclude him from voting as a member upon the question. 
 See, also. State v. Z&c&e^ City, 1 Dutch. (N. J.) 536; Madison s.. Korbly, 33 
 Ind. 74 ; State «. McGarry, 31 Wis. 496, where " other cause " for removal 
 was held to mean "other Uhe cause." 
 
 • People s. Higgins, 15 HI. 110. 
 
 « State B. Jersey City, 1 Dutch. 536, 1856; The Mayor, &c. n. Shaw, 16 
 Ga. 173, 1854. See S. C, 19 II. 468; 31 II. 380; 35 76.. 590, But see 
 Commonwealth ■». St. Patrick's Society, 3 Binn. 441 ; 4 i J. 448 ; Angell «. 
 Ames, sec. 415. Under the Illinois statute, it is held that the county 
 authorities do not possess general powers of removal, and that they cannot, 
 remove a treasurer elected by the people, except for causes specified in the 
 statute ; but it may be observed that a county treasurer is not a corporate 
 officer. Clark «. The People, 15 lU. 318, 1853. 
 
 » State ®. Jersey City, 1 Dutch. (N. J.) 536, 1856* 
 30 
 
306 MUNICIPAL CORPORATIONS. [Ch. IX. 
 
 authorized tlie council "to dismiss the marshal for mal- 
 practice in office, or neglect of duty ;" and it was held that 
 the council could not remove this officer for the crime of 
 gambling, as this was neither malpractice in office, nor 
 official neglect, within the meaning of the charter.' 
 
 § 185. The power to expel a member of the council does 
 not authorize a resolution by it that " the president of the 
 council be directed not to appoiift a certain member on any 
 committee, •nor call his name, nor allow him to take part in 
 the action of the board," since this would create no vacancy 
 which could be supplied, but would leave the seat occu- 
 pied, while it silenced the occupant, and left his constitu- 
 ents unrepresented.' 
 
 § 186. The expulsion of a member of the common 
 council does not disqualify him from being re-elected to the 
 same office, unless it is expressly so provided by the 
 charter, for where the law annexes a disqualification to an 
 offence, it does so in terms. Hence, if a member having 
 been expelled, even for bribery, be re-elected, he cannot be 
 
 • Mayor ®. Shaw, &c., 16 Ga. 172, 1854. 
 
 Whether the council possesses the power jpit/iisA /<w contempt depends 
 upon the provisions of the charter. The power must, as the author con- 
 ceives, be conferred either expressly or as incidental to some power which is 
 conferred, or it will not exist. In Doyle v. Falconer, 1 Privy Council Ap- 
 peals, 339, it was held that the colonial parliament of Dominica had not the 
 inherent privilege of parliament as a court, and could not therefore punish 
 for contempt ; but in the later case of The Speaker ®. Glass, 3 Ih. 560, it 
 was decided that the delegation of legislative authority to the Victoria par- 
 liament was broad enough to include this power. These cases afford very 
 interesting illustrations of the nature of the power to punish for contempt. 
 Power of courts of the United States to punish for contempt. Burr's Trial, 
 355 ; U. S. B. Hudson, 7 Oranch, 33. Bx pourte Kearney, 7 Wheat. 88. Power 
 of Congress, 11 U. S. Stats, at Large, 155 ; 13 IT). 333. 
 
 2 State «. Jersey City, 1 Dutch. (N. J.) 536, 1856. See State*. Chamber 
 of Commerce, 20 Wis. 73. Whether, pending proceedings to expel, a mem- 
 ber can be suspended from his duties, was a question not determined in the 
 case ; but in the State, &c. «. Lingo, 36 Mo. 496, 1858, it was held that the 
 power to provide for removing from office corporate oflScers gives the power 
 to suspend from office during the investigation of the charges for which the 
 suspension was made. The court say, ' ' The power to remove necessarily 
 includes the minor power to suspend." 11. 499. 
 
Ch. IX.] AMOTION AND DISFRANCHISEMENT. 307 
 
 expelled a second time for the same identical act for wMch 
 he had before been expelled.' 
 
 § 187. It was held in a case in Rhode Island that a 
 clerk of a school committee, — an officer created by the 
 school law, and necessary to the organization and' legal 
 action of the committee, — may, after an election by the 
 committee, be removed from office by the committee, bnt 
 only for cause, as the statute gives no express power to re- 
 move, and after due notice and opportunity given him to 
 defend himself upon the charges presented." 
 
 § 188. Where an officer is appointed during pleasure, 
 or where fhe power of removal is discretionary, the power 
 to remove may be exercised without notice or hearing. 
 But where the appointment is during good behavior, or 
 where the removal can only be for certain specified causes. 
 the power of removal cannot, as will presently be shown, be 
 exercised, unless there be a charge against the officer, 
 notice to him of the accusation, and a hearing of the evi- 
 dence in support of the charges, and an opportunity giver 
 to the party of making defence.' 
 
 * State v. Jersey City, 1 Dutch. (N. J.) 536, 1856. If the common coun 
 oil, without authority, suspend a member from the duties of his office, man 
 damus is a proper remedy to restore him to the exercise of his legal rights. 
 76. Willc. on Municipal Corporations, 368, pi. 74, 75; li. 377, pi. 96; 3 
 Blacks. Com. 110 ; Rex v. Barker, 3 Burr. 1266 ; Angell & Ames on Corpora- 
 tions, sec. 702, 706. 
 
 ' Willard's Appeal, 4 Rh. Is. 595, 597, per Ames, C. J., who says, "Such 
 a power with regard to such an officer, unless expressly forbidden by law, 
 is incidental to the committee as necessary to enable it duly to perform its 
 functions." li. p. 601. It is sufficient cause for the removal of such a 
 clerk, that he refuses to produce papers which belong to the body which 
 elected him, and of which he is simply the custodian, or refuses to keep or 
 amend the records when duly ordered to do so. lb. 
 
 ' Field V. Commonwealth, 83 Pa. St. 478, 1859 ; Ex parU Ramshay, 83 
 Eng. Com. Law, 174, 189, 1853; Mx pwrte Hennen, 18 Pet. (U. S.) 380; 
 Queen v. Governors, &c., 8 Ad. & El. 683; Bagg's Case, 11 Coke, 98 (6) ; Rex 
 ■B. Coventry, 1 Ld. Raym. 391 ; Dr. Gaskin's Case, 8 T. R. 309 ; Rex ®. Ox- 
 ford, 1 Salk. 438; Rex «. Mayor, &c., 1 Lev. 391 ; 3 Kyd, 58, 59; Willc. 353, 
 254; Grant, 344; Rex «. Andover, 1 Ld. Raym, 710; Page «. Hardin, 8 B. 
 Mon. 648 ; Hoboken v. Gear, 8 Dutch. 365 ; Madison ». Korbly, 33 Ind. 74, 
 1869; Stadler v. Detroit. 13 Mich. 346, 1865. As to the removal, by the 
 
308 MUNICIPAL COEPORATIONS. [Oh. IX 
 
 § 189. lu the leading case of the King «. Eichardson, 
 the point was decided, as above mentioned, that a corpora- 
 tion, in the absence of an express grant of authority, had 
 the incidental power to make a by-law to remove officers for 
 just cause. Lord Mansfield^ in that case, classified the 
 offences which would justify the exercise of the power ; and 
 his judgment therein has been f&llowed both in England 
 and in this country, in cases arising in private corporations 
 not of a pecuniary character. According to Lord Mans- 
 field, there are three sorts of offences for which an officer or 
 corporator may be discharged : 1. Such as have no im- 
 mediate relation to Ms office, but are themselves of so in- 
 famous a nature as to render the offender unfit to execute 
 any public franchise. 3. Such as are only against his oath 
 and (he duty of his office as a corporator ; and amount to 
 breaches of the tacit condition annexed to his franchise or 
 office. 3. Offences of a mixed nature — as being an offence 
 not only against the duty of his office, but also a matter in- 
 dictable at the common law.' In offences of the first class 
 
 appointing power, of officers, the duration of whose term is not fixed, see 
 Peoples. Comptroller, &c., 30 Wend. 595; Commonwealth «. Sutherland, 3 
 Serg. & Rawle, 145 ; Field v. Girard College, 54 Pa. St. 233. 
 
 It is the law in England, as applied to the old corporations, that causes 
 which MsquaUfy the person to be an officer will not authorize the corpora- 
 tion to amove him, but he must be ousted by qito warranto. The reason 
 given is, that one so disquaUfled is not, in law, a corporate officer, and 
 hence, cannot be amoved as such by the corporation. Eex ». Doncaster, 
 Say. 40 ; BuUer N. P. 203 ; Rex ®. Lyme Regis, Doug. 85 ; Symmers «. Re- 
 gem, Cowp. 502 ; Willc. 259, pi. 669 ; 11. 281, pi. 728. And see Pawceti 
 ®. Charles, 18 Wend. 473, 1835. It has elsewhere been shown, that with 
 us, the councils of municipal corporations are often made judges of the 
 qualifications of their members and officers, and this may modify or change 
 the rule above mentioned, which seems to rest on narrow and technical 
 grounds. 
 
 ' Rex ®. Richardson, 1 Burr. 517, 538, 1768; followed, Rex v. Liverpool, 
 2 Ih. 723. So, also, in Commonwealth v. St. Patrick's (Benevolent) Society, 
 2 Binn. 441, 1810; Commonwealth v. Guardians, &c., 6 Serg. & Rawle, 469, 
 1821. These cases adopt Lord Mansfield's classification, and assert the in- 
 herent power of corporations to expel for ofiences falling within any of the 
 three classes. See, also, Butch. Benef. Ass., 85 Pa. St. 151; 88 II. 278; 
 Evans b. Philadelphia Club, 50 Pa. St. 107 ; Society, &c. «. Commonwealth, 
 52 Pa. St. 125. 
 
 The courts may, by mamdomms, compel a corporation to amove an officer; 
 and the result of the cases on this point is considered to be that where the 
 
Cn. IS.] AMOTION AND DISFRANCHISEMENT. 309 
 
 the removal can only be made after there has been a pre- 
 vious conviction in a court of law ; and an amotion will not 
 be sustained by a subsequent conviction.' In offences of 
 the second class the corporation may try, and if the charge 
 is established, remove, without any previous or other pro- 
 ceeding in the courts.' In. offences of the third class the 
 English judges have differed on the point whether the 
 officer may or may not be removed before a conviction in a 
 court of justice. The principal cases and the result on this 
 point are briefly stated in the note.' 
 
 oflFence of the ofBcer is such that the corporation has the power to 
 amove, the court will only compel it to do so where some one is injured by 
 the omission to remove ; but where it is required to amove, or the ofiBce is 
 declared by the charter or statute to be void if such an act be done or 
 omitted, there the court will compel it to amove, though no one be shown 
 to have been aggrieved. Rex o. Truro, 3 Bam. & Aid. 593 ; Rex v. West 
 Looe, 5 Dowl. & R. 416 ; Rex v. Totness, 1 b. 483 ; Grant on Corp. 243, and 
 note. 
 
 ' Rex «. Richardson, supra, and cases cited in last note. 
 
 ' Rex n. Richardson, supra ; Commonwealth v. St. Patrick's Society, 
 supra, and. cases cited in preceding note. 
 
 * Rex n. Carlisle, Fortesc. 200; S. C, 11 Mod. 379. In this case the cor- 
 poration, before conviction, amoved a capital citizen for giving a bribe to a 
 freeman and offering him another to influence his vote at the election for 
 a mayor. The court's judgment was in favor of the right to amove. 
 Although there might have been a previous conviction, yet this being a 
 great offence against the duty of his office, the corporation might amove 
 without a ' conviction. In Rex v. Derby, Cas. Temp. Hardw. 155, Lord 
 flardwicke mistook the above case on this point, and inclined to think 
 there ought to be a previous conviction. And such seemed also to be the 
 inclination of Holt, 0. J., in Rex o. Chalke, Comb. 397, where the removal 
 was before conviction, for criminally razing entries in the corporation 
 books which were at first proper, but the point was not decided. In Had- 
 dock's Case, T. Raym. 439, the amotion was for riotously assembling and 
 assaulting several corporators, thereby impeding the business of the cor- 
 poration. It was considered that the offence was two-fold : one against the 
 duty of his office as a corporator: the other (wholly disconnected) of a riot. 
 And as he might be guilty of one and yet be acquitted the other, the cor- 
 poration might amove without conviction, and the case is said to be dif- 
 ferent from that of Chalke {supra), for there the officer could not have been 
 guilty of the offence at law without at the same time having been guilty of 
 a breach of his duty. The cases decided are considered to favor this view, 
 viz: if the act is criminal and single in its nature, so that a conviction or 
 acquittal in the courts of law will necessarily determine the guilt or inno- 
 
310 MUNICIPAL CORPORATIONS. [Ch. IX. 
 
 § 190. Principle and sound policy require that the iin- 
 pUed power of removal for oflFences against the corporation 
 be restricted to acts of a serious nature directly afltecting 
 the rights and interests of the corporation.' Causes for re- 
 moval have, in some instances, been held sufficient in Eng- 
 land which would not, probably, be so regarded in this 
 country. The principal English cases are given in the note. 
 The sufficiency and reasonableness of the cause of removal 
 are questions for the courts." * 
 
 cence of the party, there must be a conviction, but otherwise there may be 
 a removal vnthout, or independent of, a conviction. Buller's N. P. 206 ; 
 WUlc. 249, 250, 251, 252; Glover, 331, 338; Grant, 240; 2 Kyd, 88-94, 
 ■where the prior cases are digested and stated. Lord Mansfield, in Rex v. 
 Richardson, 1 Burr. 538, leaves the point untouched. A removal for a liot 
 in the council chamber, without a previous conviction, is said to have been 
 held good. Rex v. Yates, Style, cited 8 Mod. 101. See, further, Earle's 
 Case, Carth. 173; Rex v. Wells, 4 Burr; 1999; Regina v. Newberry, 1 Q. B. 
 751 ; 2 Bac. Abr. (Bouv. ed.) 476, and cases cited. 
 
 1 Evans v. Philadelphia Club, 50 Pa. St. 107; Butch. B. Ass., 35 Pa. St. 
 151; 38 i 5. 278; Society, &c. v. Commonwealth, 52 Pa. St. 125; Common- 
 wealth V. Philadelphia Society, 5 Binn. 486 ; State v. Common Council, 9 
 Wis. 254; Mayor, &c. ■». Geisel, 19 Ind. 344; Same «. Wright, 2h. 346. 
 
 " Rex V. Andover, 3 Salk. 229. Poverty of alderman, so that he could 
 not pay taxes, sufBcient cause for amoving him: lb.; but not applicable 
 here. But tanhruptay insufficient cause of amotion of councilman. Rex «. 
 Liverpool, 2 Burr. 723; see Rex «. Chitty, 5 Ad. & E. 609. Total desertion 
 of duties of office sufficient cause. Buller's N. P. 206 ; Rex n. Richardson, 1 
 Burr. 541. Wlien absence arid nort-attendance upon meetings, and neglect of 
 duty, ■will be sufficient cause. See Rex n. Richardson, supra ; Rex «. Wells, 
 4 Burr. 2004; 1 Hawk. P. C. chap. LXVI. sec. 1, as to official neglect of 
 duty; approved by Lord Mansfield, in case last cited; Lord Bruce's Case, 2 
 Stra. 819, and notes; Rex ». Ipswich, 2 Ld. Raym. 1283; S. C, Salk. 443; 
 Buller's N. P. 206, 207 ; Lord Hawley's Case, 1 Vent. 146 ; Rex o. Harris, 1 
 Bam. & Ad. 936 ; Queen n. Mayor, &c. of Pomfret, 10 Mod. 107 ; 2 Kyd, 65 
 et seq., where the older cases are stated. WiUc. 255-264; AngeU & Ames, 
 sec. 427, giving summary of English cases. Much depends upon the cause 
 of the neglect, and whether the effect is to obstruct or hinder the business 
 of the corporation or officer from being done. 
 
 MMtual drunkenness, disgualifylng from the performance of duty, is a 
 sufficient cause to remove an alderman or officer charged with magisterial 
 functions. Rex «. Taylor, 3 Salk. 231 ; 1 Rolle, 409 ; 3 Bulst. 190. But 
 casual intcxicizUon, or being drunk by accident, is not a sufficient cause, for 
 the reason (charitably allowed) that this is likely to happen to the best 
 
Ch. IX.] AMOTION AND DISFRANCHISBMBNT, 311 
 
 § 191. Respecting tTie proceedings to amove, it has 
 already been observed, that ttey must be had by and 
 before the authorized hody duly assembled, in conformity 
 with the rules on that subject, which are elsewhere stated.' 
 
 Rex v. Taylor, supra, A. D. 1616. Old age is insufficient. Bac. Abr. Corp. 
 E. 9 ; Hazard's Case, 3 RoUe, 11. 
 
 Mere threats or attempts, no injury resulting, not sufficient. Bagg's Case, 
 11 Coke, 9B. Insulting language, or libel upbn mayor or officers, held in- 
 sufficient, on the ground that personal oflfences are to be punished by law, 
 and not by the corporation. Rex v. Oxford, Palm. 455 ; Bagg's Case, 11 
 Coke, 93, 96, 97, 98, 99; Clark's Case, 2 Cro. 506; BuUer's N. P. 303; Rex 
 e. Lane, Portesc. 275; S. C, 11 Mod. 270; Earle's Case, Carth. 174; Willc. 
 261, pi. 680. See Regina ». Rogers, 2 Ld. Raym. 777 ; Innes «. Wylie, < 
 Carr. & P. 357; Regina v. Treasury, 10 Ad. & E. 374; 3 Perr. & D. 498. 
 
 Official misconduct, amounting to misdemeanor, has been before men- 
 tioned, and the cases cited. The misconduct must, it seems, specially relate 
 to the execution of the office. Rex v. Wells, 4 Burr. 1999; see Regina v. 
 Newberry, 1 Q. B. 751. If the same person hold two offices, misconduct 
 with respect to one will authorize removal from that one, but not from both ; 
 but if the oflEence is against the duties of both, the removal may be from 
 both. Rex v. Chalke, 1 Ld. Raym. 326 ; S. C. 5 Mod. 357 ; Rex ®. Doncaster, 
 2 Ld. Raym. 1566; S. C, 1 Barnard. 365; Rex «. Wells, 4 Burr. 1999; Rex 
 o. Harris, 1 B. & Ad. 936. Misemployment of corporate funds in his custody 
 is not sufficient cause of amotion, though generally it is good cause of sus- 
 pension from a financial office, for the court will not grant a mandamus to 
 restore until the accounts are made up and submitted to the corporation. 
 Rex ®. Chalke, 1 Ld. Raym. 366; 8. C, 5 Mod. 359; Rex v. London, 2 Term 
 R. 182; Willc. 362, pi. 685; AngeU v. Ames, sec. 428. On principle, it may 
 be suggested that if such a thing as an implied power of amotion exists at 
 all, it should extend to a case where the financial officer of a corporation is 
 misemploying its funds intrusted to his safe-keeping. 
 
 ' Rex «. Taylor, 8 Salk. 331 ; Rex v. Sandys, 2 Barnard. 302 ; Taylor v. 
 Gloucester, 1 Roll. 409; S. C, 3Bulst., 190; RexB. Chalke, 1 Ld.Raym. 236; 
 2 Kyd, 57; Grant, 345, 275; Willc. 264; pi. 691; /J. 366; pi. 698. Neces- 
 sity for vote or corporate act, declaring the removal or expulsion. Com- 
 monwealth V. Pennsylvania, &c. Institute, 3 Serg. & Rawle, 141 ; Common- 
 wealth V. German Society, 15 Pa. St. 251 ; Stadler v. Detroit, 13 Mich. 346. 
 
 Where, by statute, the mayor, recorder, and an alderman were constitu- 
 ted a body to try charges against policemen appointed by the corporation, 
 with power to suspend or remove, the presence of the mayor is essential to 
 the constitution of the legal body, and if one act, in the trial of such a 
 charge, as mayor, who is not such dejure [or de/acto], the order of removal 
 is void. Hadley v. Mayor, &c., 33 N. Y. 603; see supra, sec. 183. Special 
 provision of charter construed tb give the power of removal to the mayor 
 and council, and not to the council alone. Charles «. Hoboken, 3 Dutch. 
 (N. J.) 203. 
 
312 MUNICIPAL CORPORATIONS. [Ch. DL. 
 
 The proceeding in all cases where the amotion is for cause, 
 is adversary or judicial in its character ; and if the organic 
 law of the corporation is silent as to the mode of procedure, 
 the substantial principles of the common law as to proceed- 
 ings affecting private rights must be observed.' 
 
 § 192. And first, the officer is entitled to a personal 
 notice of the proceeding against him and of the time when 
 the trial body will meet. It i^ not necessary that the 
 notice, citation, or summons set out the charges in detail, 
 but it should contain the substantial fact that a proceeding 
 to amove is intended." The analogies of the ordinary pro- 
 cedure in the courts of the State (in the absence of statute 
 or by-law) may be followed respecting such details as the 
 notice or summons, mode of service, &c. Notice may be 
 dispensed with: 1st. By appearance and answer to the 
 charges." 2d. By a total desertion of the place,* so that it 
 
 ' State V. Bryce, 7 Ohio, part H. pp. 414, 416, 1836. " This proceeding," 
 (amoval of a trustee of the university) "is essentially adversary,; the jua- 
 tice of the common law permits no investigation of facts which may be 
 followed by a loss of a right or by the infliction of a penalty, to be con- 
 ducted as ^fl»'*«." lb., per Lane, 3. Mnrdock ®. Academy, 13 Pick. 344; 
 State V. Trustees, &c., 5 Ind. 77. Charter mode, if prescribed, must be pur- 
 sued, i S. ; Bacher's Case, 30 Pa. St. 435 ; see People ». Bearfleld, 35 Barb. 
 354; State v. Common Council, 9 Wis. 354; Madison «. Korbly, 33 Ind. 74; 
 Tompert v. Lithgow, t Bush (Ky.) 176, 1866. 
 
 '' Queens. Saddlers' Co., 10 House of Lords Cases, 404; State v. Bryce, 
 supra ; Rex «. Richardson, 1 Burr. 540 ; Rex v. Doncaster, 3 Burr. 788 ; see 
 1 B. & Ad. 943; Rex t. Liverpool, 3 Burr. 731 ; Bagg's Case, 11 Rep. 99 a; 
 Rex ■B. Wilton, 5 Mod. 359 ; Exeter ®. Glyde, 4 Mod. 37 ; Rex ». Ipswich, 3 
 Ld. Raym. 1340 ; Willc. 364, 365 ; Innes «. Wylie, 1 C. & K. 357; South P. 
 R. Co., 5 Ind. 165 ; People «. Benevolent Society, 34 How. Pr. 316 ; Dela- 
 cey B. Neuse, &c. Co., 1 Hawks, 374; Commonwealth b. Pennsylvania 
 Benef. Institute, 3 Serg. & Rawle, 141 ; Society ». Vandyke, 3 Whart. 309. 
 
 '' Willc. 364 ; Rex 9. Wilton, 3 Salk. 438 ; Rex ». Ipswich, 3 Ld. Raym. 
 1340 ; Rex «. Feversham, 8 Term R. 856 ; Rex «. Carmathen, 1 Maule & Sel. 
 697; S. P. Commonwealth v. Pennsylvania Benef. Institute, 3 Serg, & 
 Rawle, 141. 
 
 * Willc. 365, 366 ; Grant, 345 ; Rex o. Harris, 1 B. & Ad. 936 ; Rex ». 
 Shrewsbury, Cases Temp. Hardw. 151 ; 7 Mod. 303 ; Rex v. Toneboy, 3 Ld. 
 Raym. 1275 ; 11 Mod. 75 ; Rex «. G-rimes, 5 Burr. 3601 ; Rex ». Leicester, 4 
 Burr. 3089. 
 
Oh-IX.] amotion and disfranchisement. 313 
 
 is not practicable to give the notice, as where the officer has 
 permanently, not temporarily, left the municipality and 
 resides constantly elsewhere with his family. Though he 
 may have been absent or left the borough, yet if he return 
 and be in the place at the time of the amotion, he is entitled 
 to notice.' If the amotion be for good cause, such as con- 
 viction of an infamous crime," or the repeated declaration 
 of the officer that he would not discharge the duties of his 
 office,' while it would be more regiolar to give the notice, 
 yet its omission will not entitle him to a mandamus to be 
 restored ; for if restored he could be amoved again, and the 
 courts will not order a restoration where they can see that 
 there is good ground of removal, and that the order to 
 restore would be without practical and useful effect." With 
 these exceptions, the party is entitled to notice oi the inten- 
 tion to amove, so that he may have full and fair opportunity 
 to be heard in his defence. 
 
 § 193. There must be a charge^ or charges, against him, 
 specifically stated, with substantial certainty ; yet the 
 technical nicety required in indictments is not necessary." 
 And reasonable time and opportunity must be given to 
 answer the charges and to produce his testimony ; and he 
 is also entitled to be heard and defended by counsel, and to 
 cross-examine the witnesses, and to except to the proofs 
 against him." If the charge be not denied, still it must, if 
 
 ' Rex v. I«eicester, 4 Burr. 2089. 
 
 ' Angell & Ames Corp. sec. 423, where this opinion is expressed ; Grant, 
 265 f Rex v. Chalke, 1 Ld. Raym. 226. 
 
 ' Rex «. Axbridge, Cowp. 633 ; see 2 Term R. 182 ; Grant Corp. 245. 
 
 * Rex V. Griffiths, 3 B. & Aid. 735 ; see Blagrave's Case, 2 Sid. 6, 49, 73 ; 
 Rex V. Rowe, 1 Show. 188 ; S. C, Carth. 199; Grant, Corp. 345. If one 
 irregularly amoTed for good cause be restored by Tnandamus, he may be 
 again amoved by regular proceedings de novo. Taylor ». Gloucester, 8 Bulst. 
 190 ; Rex «. Ipswich, 3 Ld. Raym. 1383. In such case the office is vacated 
 from the time of the second amotion; the proceedings do not relate back to 
 the former irregular amotion. Willc. 369, pi. 707. 
 
 ' Tompert n. Lithgow, 1 Bush (Ky.) 176, 1866; Rex v. Lyme Regis 
 Doug. 174; Bagg's Case, 11 Co. 99 a; 8. C, 1 Roll. 225; Glover, 334; 
 Willc. 267. 
 
 ' State V. Bryce, 7 Ohio, part 11. p. 414, 1836; Rexs. Richardson, IBurr. 
 B40; Rex®. Liverpool, 2 Burr. 734; Murdock v. Acadenny, 12 Pick. 244; 
 
314 MUNICIPAL COKPORATIONS. [Ch, IX. 
 
 not admitted, be examined and proved.' Where the 
 specific charge stated is insufficient to justify the removal, 
 or where the removal is erroneous and no good and suffi- 
 cient ground therefor appears, the officer is entitled to a 
 mandamus to restore Mm." But where the proceedings 
 are in conformity with the charter, and are regular, the 
 Sentence will not be inquired into collaterally, nor its merits 
 examined by mandamus or action.' 
 
 § 194. If the amotion be legal%nd authorized, ±he office 
 becomes ipso facto vacant from the time the amotion is de- 
 clared, and another person may be elected or appointed to 
 fill it. If the removed officer afterward continues to act he 
 is a mere usurper, and may be ousted on qv^o warranto and 
 punished. Amotion from one office does not, of course, 
 affect the party's title to another.' 
 
 where the requisites of a valid proceeding to amove are stated. Rex v. 
 Chalke, 1 Ld. Raym. 236 ; Rex v. Derby, Gas. Temp. Hardw. 154. 
 
 ' Rex «. Feversham, 8 Term R. 356 ; Harman ». Tappenden, 1 East, 563 ; 
 Willc. 367 ; Glover, 334 ; Murdock ». Academy, 13 Pick. 344. A municipal 
 officer, when removed by the corporation appointing Mm, is entitled to 
 actual notice of his removal, and to compensation until he receives such 
 notice. Jarvis v. Mayor, &c. of New York, 3 N. T. Leg. Obs. 396. 
 
 ' Rex ». Ipswich, 3 Ld. Raym. 1340 ; Madison v. Korbly, 33 Ind. 74, 
 1869 ; Commonwealth ». German Society, 15 Pa. St. 351, 1850 ; State ». 
 Jersey City, 1 Dutch. (N. J.) 536. The restoration puts him in the same 
 situation that he was before the attempted removal. Willc. 369 ; post, sec. 
 683. 
 
 'Society, &c. v. Commonwealth, 53 Pa. St. 135, 1866; People ». Bear- 
 field, 35 Barb. 354. -Though the amotion be illegal, the officers who took 
 part in it are not personally Uable, unless both malice and want of probable 
 cause be shown. Harmen e. Tappenden, 3 Espin, 378; S. C, 1 East, 555; 
 Ferguson v. Earl of Kinnoul, 9 CI. & F. 389. 
 
 Jurisdiction as to the eUetion and amotion of officers in corporations, when 
 not changed by statute, belongs to the Common Law Courts and not to 
 Equity. Attorney General v. Earl Clarendon, 17 Ves. 491; Dyer, 333; 
 Cochran b. McCleary, 33 Iowa, 75. Ante, sec. 141. Post, sec. 313. 
 
 * Jay's Case, 1 Vent. 363 ; Symmers v. Regem, Cowp. 503 ; Willc. 368, 
 pi. 704; Rex «. Doncaster, 3 Ld. Raym. 1566; 1 Barnard. 365; Rex v. 
 Chalke, 1 Ld. Raym. 336. Mr, Willcock, 367, pi. 704, whose language is 
 adopted by Glover (Corp. 334), states that, if a person legally amoved con- 
 tinues to act, he is a mere usurper, and that "all corporate acts in which he 
 has concurred are equally void, as though he had never been elected or 
 admitted." But if he is permitted to act after amotion, it would probably 
 
Ch. IX.] AMOTION AND DISFRANCHISEMENT. 315 
 
 De considered, in this country, that his acts would, as to third persons, be 
 valid, like those of an officer de facto. If the removal be unauthorized, Mr. 
 WiUcock states the rule to be, "that all corporate acts in which he has 
 concurred between the moment of his removal and restitution are of equal 
 validity as if he had never been amoved," &c. Willc. 369, pi. 707. If he 
 was regularly present and concurred, it can well be seen how this should be 
 so; but his concurrence when not regularly acting, or when a de facto suc- 
 cessor has taken his place and is acting, would not seem to alter the legal 
 quality of the act. In this country the acts of de faiAo officers are every- 
 where considered valid as respects the public. Poit, sees. 314, 716, note; 
 Gushing v. Fiankfort, 57 Maine, 541. 
 
316 MUNICIPAL C0EP0EATI0N8- [Oh. X 
 
 CHAPTER X. 
 
 CoEPOKATE Meetings. 
 
 § 195. The subject of Corporate Meetings will be con- 
 sidered under the following genial heads : — 
 
 1. Common Law Requisites of a Valid Corporate Meet- 
 ing—sees. 196-199. 
 
 3. Notice of Corporate Meetings at Common Law and 
 Under the English Municipal Corporations Act — sees. 200- 
 203. 
 
 3. Few England Town Meetings ; Requisites of Notice 
 and Power of Adjournment — sees. 204r-207. 
 
 4. Constitution and Meetings of Councils, or of Select 
 Governing Bodies, and herein of Quorums and Majorities ; 
 Of Integral Parts ; and of Stated, Special, and Adjourned 
 Meetings — sees. 208-225. 
 
 5. Mode of Proceeding when Convened — sees. 226-230. 
 
 Common Law Requisites of a Valid Corporate Meeting. 
 
 § 196. As respects their mode of action, municipal cor- 
 porations in this country are of two general classes. In 
 the one, as in the organization of towns in the New England 
 states, heretofore adverted to, all of the qualified inhabitants 
 meet, act, and vote, inperson."^ In the other, which is the 
 kind that prevails generally throughout the states, and even 
 in many of the larger places in New England, the affairs of 
 the town or city are administered by a select or representa- 
 tive body, usually denominated the Council, and which is 
 elected by the qualified voters of the incorporated place, 
 not assembled together in a meeting, but at an election, 
 where each elector votes separately and by ballot." 
 
 § 197. The latter class of corporations are properly 
 municipal. The former class are not so strictly municipal 
 
 ' Ante, chap. II. sec. 11. 
 
 ' Ante, chap. 11. sec. 11 et seq.; ante, chap. IV. 
 
Ch. X.] CORPOBATE MEETINGS. 317 
 
 as they are public in their character.' Where there is a 
 council or governing body, the inhabitants or voters, in 
 their natural capacity, have no power to act for or bind, the 
 corporation, but the corporation must act, and can be bound 
 only, through the medium of this body. Therefore, au- 
 thorized acts done by the council are not their acts, but those 
 of the corporation. The council is a body which is con- 
 stantly changing ; it is simply the agent of the corporation. 
 But its members, it has been weU observed, are not only not 
 the municipal corporation, but are not even a corporation." 
 Whether the corporation be of the one class or the other, 
 its affairs must be transacted at a corporate meeting, in 
 the one case of the qualilied inhabitants, and in the other of 
 the members of the council or governing body, duly con- 
 vened* at the proper time and place, and upon due notice in 
 cases where notice is requi'^ite.' 
 
 § 198. In England, prior to the General Municipal Cor- 
 porations Act of 1835,* the requisites of a valid corporate 
 meeting depended upon the constitution of the particular 
 corporation under its charter or prescriptive usage. To 
 constitute a corporate assembly there must, at common law, 
 be present, the mayor or other head -^flScer (he being con- 
 sidered an integral part of the corporation,' in whose ab- 
 sence no valid corporate act could be done), a majority of 
 the members of each select or definite class (these classes 
 being also considered integral parts), and some members of 
 the indefinite body (indefinite in point of numbers) usually 
 styled the commonalty, and of each of the indefinite classes 
 if there were more than one.' If there were no indefinite 
 
 ' Ante, chap. I, sec. 9 ; ante, chap. 11. sees. 10, 10 a, and note. 
 
 ' Begina b. Paramore, 10 Ad. & El. 386 ; see Begina v. York, 3 Queen's 
 B. 850 ; Mayor v. Simpson, 8 Queen's B. 73. Ante, sec. 19. 
 
 » Dey 1). Jersey City, 19 N. J. Eq. 413, 1869; Baltimore ». Poultney, 35 
 Md. 18, 1866. 
 
 * Ante, chap. IH. sec. 16 et seq. 
 
 ' Ante, chap. in. sec. 16. Further as to mayor, see ante, chap. IX. 
 relating to Municipal Elections and Officers, sec. 147. 
 
 ' Willc. 53, 53, 66; Bex v. Atkyns, 3 Mod. 33; 1 Bol. Ab. 514; Bex «. 
 Carter, Cowp. 59; Bex v. Smart, 4 Burr. 3143; Bex v. Gaborian, 11 Bast. 
 
318 MUNICIPAL CORPORATIONS. [Ch. X 
 
 class, and the governing body consisted of a select or definite 
 class, the common law requisite of a valid corporate as- 
 sembly is, that a majority of the select class must be present, 
 and if there was more than one such class, then a majority of 
 each of the select' classes of which the corporation is consti- 
 tuted ; and the presence of the mayor at a select assembly 
 of this kind is not necessary, unless it is expressly required.* 
 But where a common council exists (which, in contempla- 
 tion of the ancient law, is a m^feting of the body at large, 
 or those of them who thought proper to attend, or were con- 
 sidered by their fellow freemen the men best fitted to at- 
 tend), though such council has become a select or definite 
 class, there the presence of the mayor or head presiding 
 officer is necessary to a valid assembly, though such 
 presence be not required by the charter.' . 
 
 § 199. A majority of each definite 'part means a ma- 
 jority of the number of members of which that part con- 
 sists, not merely a majority of the existing members of the 
 part; but if the act is to be done by an indefinite body 
 alone, it is valid if done at a meeting duly convened, 
 although but a small fraction of the whole body at 
 large be present. But while the presence of a majority of 
 each definite integral part was necessary to a valid corporate 
 meeting, yet it is settled law that a majority of those 
 present, when legally assembled, will bind the rest,' Not 
 
 87, note ; Rex ». Morris, 4 East, 36 ; Rex v. Bellringer, 4 Term R. 833 ; Rex 
 ». Miller, 6 Ih. 378; Rex «. Varls, Cowp. 250 ; Rex v. Monday, II. 539. 
 
 ' See authorities cited in the last note. 
 
 ' Willo. 67. 
 ■ ' Rex 0. Bellringer, 4 Term R. 810, 1793, and cases cited; Rex ». Miller, 
 6 It. 368 ; Rex ». Monday, Cowp. 531, 538 ; Rex b. DevonsMre, 1 Barn. & 
 Cress. 609; Rex ®. Bower, 11. 493; Rex «. May, 4 B. & Ad. 843; Rex v. 
 Headley, 7 Barn. & Cress. 496; Willc. 216, pi. 546; Blacket n. Blizard, 9 
 Bam. & Cress. 851; Ex pcn-U Rogers, 7 Cow. 536, 1827; 11. note a, 764; 
 ExpaHeWiVLcocks, 7 Cow. 403, and note 463, 463, 1837; Young ■». Buck- 
 ingham, 5 Ohio, 485, 489, 1833; BuelU. Buckingham, 16 Iowa, 384, 1864, 
 and cases cited ; State v. Deliesseline, 1 McCord (South Car.) 53, 1831 ; 
 State «. Huggins, Harper (South Car.), 94, 1824; Baker v. Young, 13 Gratt, 
 (Va.), 303, 1855, approving Willc. 216, pi. 646; Labourdette «. Municipal- 
 ity, 2 La. An. 537, 1847; Kingsbury ». School District, 21 Met, 99, 1846; 
 Bamon v. Granby, 3 Pick. 345, 355, 1834 ; Coles ». Trustees, &c. of Williams- 
 burg, 10 Wend. 658, 1833; 3 Kent Com, 293; Angell & Ames Corp. sec. 501. 
 
Oh. X.] NOTICE CF CORPOEATE MEETINGS. 319 
 
 only did the law of the old corporations in England require 
 the presence of a majority of the members of each definite 
 integral part, but it went to the extreme length of holding 
 that where the presence of the mayor was necessary, he 
 must be the legal mayor, and if he be merely an officer de 
 facto, and a;fterwards be ousted on quo warranto, all 
 corporate acts done under the sanction of his office are 
 voidable.' By reason of the change in the constitution of 
 municipal corporations in England, wrought by the Cor- 
 porations Act of 1835, many of the rules respecting corporate 
 meetings are no longer applicable, though, as we shall see, 
 some of them still are. IFnder that statute the corporation 
 acts, and can only act, through the council ; and it is pro- 
 vided that all questions shall be decided by a majority of 
 all the councillors present, including questions of adjourn- 
 ment ; that one-thixd part of the number of the whole 
 council shall be a quorum ; that the mayor, if present, shall 
 preside, and if absent, that a presiding officer shall be 
 chosen, who shall have a second or casting vote." 
 
 Notice of Corporate Meetings at Common Law, and under 
 the English Municipal Corporations Act. 
 
 § 200. Due notice of the time and place of a corporate 
 meeting is, by the English law, essential to its validity, or 
 its power to do any act which shall bind the corporation. 
 Respecting notice, the courts in England adopted certain 
 rales, wMch, since they form the basis of much of the 
 statute law in this country upon the subject, and have, in 
 the main, been followed by our courts, and are founded on 
 reason, may advantageously be here mentioned. All cor- 
 porators are presumed to know of the days appointed by 
 the charter, statute, usage, or by-laws, for the transaction 
 of particular business, and hence, no notice of such meet- 
 ing for the transaction of such business is necessary, or for 
 the transaction of the mere ordinary affairs of the corpora- 
 tion on such days, yet if it is intended to proceed to any 
 
 ' Bex v. Carte*, Cowp. 59 ; Eex v. Hebden, Anstr. 391 ; Rex «. Dawes, 4 
 Burr. 2379; Willc. 54, 55. 
 
 '' 5 and 6 Will. IV. chap. LXXVI. sec. 69. Rawlinson on Corp. (5tli ed.) 
 136. Ante, chap. HI. sees. 16, 17. 
 
320 MUNICIPAL COEPOEaTIONS. [Ch. X. 
 
 other act of importance, a notice is necessary, the same as 
 at any other time. 
 
 § 201, A notice, when necessary, must, if practicable, 
 be given to emry memher who has a right to vote, where 
 the act is one to be done by a body consisting of a definite 
 class or classes, and it must be given by, or issued hy order 
 of, some one who has the authority to convene a coi-porate 
 meeting. But notice may be alto§^the^ dispensed with, or 
 its necessity waimd, by the presence and consent of every 
 one of those entitled to it. It must be served personally 
 upon every resident member, or left at his house. If 
 temporarily absent, it may be left with his family, or at his 
 house or last place of abode. An order to serve all is not 
 suflQlcient ; all, if practicable, must be served, but if the 
 party entitled to notice has entirely quit the municipality, 
 and has no family or house within its limits, notice is not 
 necessary. It must be served a reasonable time before the 
 hour of meeting, of which the court will judge from all the 
 circumstances, including usage. 
 
 § 203. The notice must state the time of meeting, and 
 the place, if it be not the usual place. It is not necessary 
 to state what business is to be done when the meeting re- 
 lates only to the ordinary affairs of the corporation ; but 
 when it is for the purpose of electing or removing officers, 
 passing ordinances, and the like, the fact should be stated, 
 so that members may know that something more than the 
 usual routine of business wiU be transacted. Such great 
 importance is attached to notice, that it can only be waived 
 by universal consent ; but if every member of a select body 
 be present at a regular or stated meeting, or at a special 
 meeting, they may, if every one consents, but not otherwise, 
 transact any business, ordinary, or extraordinary, though 
 no notice was given, or an insufficient notice, but the 
 unanimity of consent should plainly appear from their 
 recorded declaration, acts, or conduct. This unanimity is 
 only necessary to enter upon the business ; once com- 
 menced, the usual rules which govern the body and its 
 actions apply. It is to be observed that the foregoing rules 
 are not applicable where they are in conflict with the 
 
Cn. X.] NOTICE OF COEPORATE MEETINGS. 821 
 
 charter, and hence, if this recLuires a special notice^ it can- 
 not be waived, even by consent of all. The guildhall is the 
 proper place for the meeting ; if there be none, the meeting 
 should be at the usual place ; and if at any other place, it 
 should be stated, to prevent fraud or surprise. Acts done 
 at an unusual- place will be closely scrutinized.' 
 
 § 203. By the English Municipal Corporations Act,' the 
 subject of meetings, stated and special, and the notice and 
 summons required are made matter of express regulation. 
 It provides for every borough or city four quarterly meet- 
 ings of the council in each year, to be held at a fixed date. 
 No notice of the business to he transacted at these quarterly 
 meetings is necessary ; but three days' notice, by posting on 
 or near the town hall, is required of the time and place of 
 every intended meeting. Power is given to the mayor to 
 call special meetings, or, on his refusal, to five members of 
 the council, in which case, the notice on or near the town 
 hall shall state therein the business proposed to be trans- 
 acted at such meeting, and in every case a summons (in ad- 
 dition to the notice) must be left at the usual place of abode 
 of every member of the council, or at the premises occupied 
 by him, in respect of which he is enrolled as a burgess, at 
 least three clear days before the meeting, and no business 
 can be transacted not specified in the summons. Power to 
 adjourn meetings is expressly conferred upon the council 
 by the same section.' 
 
 ' Authorities in support of the last and two preceding sections of the 
 text : Willc. chap. I. sec. 43, et seq. Rex v. Hill, 4 B. & C. 441 ; Rex v. 
 Liverpool, 2 Burr. 734; Rex v. Doncaster, 26. 744; Rex «. Theodorick, 8 
 East, 545 ; Rex v. May, 5 Burr. 3683 ; Rex «. Oxford, Palm. 453 ; Rex «. 
 Grimes, 5 Burr. 3601 ; KynaSton ». Shrewsbury, 3 Stra. 1051 ; Musgrove ®. 
 Nevison, 1 Stra. 584; S. 0.,3 Ld. Raym. 1359 ; Rex«. Mayor of Shrewsbury,. 
 Cases Temp. Hardw. 147 ; Smith v. Darley, 3 House of Lords Cases, 789 ;. 
 Grant on Corp. 154-156 ; Glover on Corp. chap. YUI. pp. 146-173. Form- 
 erly, the rule that where notice was necessary every member must be notified, 
 was applied only to the case of definite bodies, but it has more recently 
 been declared to be applicable, both to select and indefinite bodies of public- 
 corporations. Rex V. Langhome, 4 Ad. & El. 538. See, also, Rex b. 
 Faversham, 8 Term R. 356, jper Ld. BTenyon, arguendo.- 
 
 ' 5 and 6 Will. IV. chap. LXXVI. sec. 69. Ante, sees. 16, 17. 
 
 ' In construing this statute, it has been held that where the meeting is 
 21 
 
322 MUNICIPAL C0EP0RATI0N8. [Ch. X, 
 
 New England Town Meetings — Notice and Adjournment. 
 
 % 204. In New England the inhabitants are required to 
 be notified or warned of town meetings. The requisites of 
 such notice, and manner of giving it, are prescribed by 
 statute. The provision is quite general, that the articles or 
 matters to "be acted upon shall he specified or inserted in the 
 notice or warrant. The courts yi those states concur in 
 requiring the statute as to notice to be faithfully observed 
 by the officers charged with the duty of calling meetings. 
 Meetings, to be valid, must be warned or notified according 
 to law. The rule of the English courts applied to indefinite 
 corporate bodies, that if all are present notice may, by 
 unanimous consent, be waived,' is not regarded as applic- 
 able to the town meetings of New England, and hence a de 
 facto meeting, not duly notified, though attended by all the 
 voters capable of attending, is not a valid meeting, and its 
 acts are void." 
 
 an adjourned quarterly meeting, notice is necessary as to any business 
 which was not actually entered upon at the general or regularly quarterly 
 meeting, but not otherwise ; and hence, a coroner cannot be elected at such 
 an adjourned quarterly meeting without the notice and summons which the 
 statute requires. Regina «. Grimshaw, 10 Queen's Bench, 747, 755. See 
 Regina e. Thomas, 8 Ad. & El. 183 ; Rex ». Harris, 1 B. & Ad. 936. As to 
 notice. Town Council, &c. ®. Court, IE. & E. 770 ; Regina v. Whipp, 4 
 Queen's Bench, 141. 
 
 ' Rex V. Theodorick, 8 East, 545 ; ante, sec. 11. 
 
 = Hayward «. School District, 2 Cush. 419, 1848 ; Moor v. Newfleld, 4 
 Greenl. (Maine) 44, 1826 ; School District v. Atherton, 13 Met. 105, 1846 
 Little V. Merrill, 10 Pick. 543 ; Perry v. Dover, 12 Pick. 306 ; Reynold ». 
 New Salem, 6 Met. 340 ; Congregational Society ®. Sperry, 16 Conn. 300 
 Rand «. Wilder, 11 Cush. 394, 1853; Stone «.^ohool District, 8 Cush. 593 
 Brewster v. Hyde, 7 N. H. 306 ; Northwood v. Barrington, 9 N. H. 369 
 Giles ». School District, 11 Fost. 304 ; Lander v. School District, 33 Maine, 
 239, 1851 ; Jordan «. School District, 38 Maine, 164, 1854. So in Vermont 
 it has been decided that it cannot be shown, by parol, to validate the levy 
 of tax by a meeting not legally warned, that all of t?ie legal voters of the dis- 
 trict were present at the meeting. Sherwin v. Bugbee, 17 Vt. 337, 1845 ; 
 distinguished by the court from Rex v. Theodorick, 8 East, 543. And see, 
 also. Hunt ». School District, 14 Vt. 300 ; Pratt «. Swanton, 15 Vt. 147. 
 Requisites of notice and sufficiency. Wyley ». "Wilson, 44 Vt. 404, 1873. A 
 tax voted at a meeting not legally warned is illegal, and may be recovered 
 back if the party did not pay it voluntarily. Rideout o. School District, 1 
 
Ch. X.] NEW ENGLAND TOWN MEETINGS. 323 
 
 § 205. It is, however, sufficient if the purpose or ohjeot 
 of the meeting can fairly he understood from the notice or 
 warrant.' And where the statute requires the time and 
 place to be stated in the notice, its requirements must be 
 observed, and there can be no legal meeting unless it origin- 
 ally assembles at the prescribed time and place. The law is 
 
 Allen (Mass.) 233, 1861. So it may be recovered back if the assessment is 
 void. Gerry v. Stoneham, 1 Allen (Mass.) 319, 1861 ; Tobey «. Wareham, 3 
 Allen nyiass.) 594. Post, sec. 751. See Massachusetts act of 1859, chap. 
 CXYTLI. limiting, in such cases, the plaintiff 's right of recovery to illegal 
 eixesa of taxation. 
 
 Authority to the clerk to call and warn " the annual meetings," does not 
 authorize him to call and warn special meetings ; and the acts and doings 
 of a special meeting thus called are wholly void. School District ». Ather- 
 ton, 13 Met. 105, 1846. And authority "to warn" future meetings does 
 not authorize him "to call" such meetings. Stone v. School District, 8 
 Cush. 593, 1851. 
 
 As to proof of notice, and the return of the person or officer making the 
 warning, and what it shall show, see State is. Williams, 35 Maine, 564, 1846, 
 and the Massachusetts and Maine decisions therein cited and commented 
 on; Christ's Church v. Woodward, 31 Maine (13 Shep.) 173, 1846; Fossett 
 9. Bearce, 39 Maine, 538, 1849 ; Bearce v. Eossett, 34 Maine, 575, 1853 ; Jor- 
 dan 'B. School District, 38 Maine, 164, 1854; Perry «. Dover, 13 Pick. 306; 
 Houghton «. Davenport, 33 Pick. 335 ; Williams v. Lunenberg, 31 Pick. 75 ; 
 Briggs V. Murdock, 13 Pick. 305; Band o. Wilder, 11 Cush. 394, 1853; 
 Cardigan v. Page, 6 N. H. 183 ; State v. Donahay, 1 Vroom (N. J.) 404 ; 
 Hardcastle v. The State, 3 Dutch. (N. J.) 353. In Sherwin ». Bugbee, 17 
 Vt. 337, the strict view is held that the notice or warning must he recorded 
 by the clerk. If, as recorded, the time for which the meeting was to be 
 holden is not specified, the defect cannot be supplied by parol evidence 
 that in the original warning the hour for the meeting was named. This 
 decision was not put upon the ground that the statute expressly required 
 the warning to be recorded (which it did not), but upop the ground that 
 the statute intended that the records should furnish all the means for test- 
 ing the validity of the proceedings. See, also, Stevens «. Society, &c., 13 
 Vt. 688, 1839. Post, sec. 346. Presumption in favor of legality of meeting 
 after lapse of long time. Peterborough o. Lancaster, 14 N. H. 383, 393, 
 Length of notice. Hunt v. School District, 14 Vt. 300; Pratt «. Swanton, 
 15 lb. 347. 
 
 Under a statute of New York, the notice it required of school meetings 
 held to be directory only, and the want of notice, when not fraudulently or 
 willfully omitted, does not render the meeting invalid, and its proceedings 
 void. Marchant v. Langworthy, 6 Hill (N. Y.) 646 ; affirmed in error, 3 
 Denio, 536. See, also, Williams «. Larkin, 3 Denio, 114. Ante, sec. 339. 
 
 ' School District v. Blakeglee, 13 Conn. 337. 
 
324 MUNICIPAL C0EP0RATI0N8. [Ch. X. 
 
 Strictly held as to the important particulars of time and 
 place, as •will appear by the illustrations in the notes.' 
 
 § 206. Where the statute requires the notice " to specify 
 the business to he done,'''' an omission to comply with this 
 requirement makes the meeting void, and it is held that a 
 notice stating, generally, "to do any proper business," is 
 insufficient, and the acts and votes of a meeting held under 
 it are of no binding or legal force." Indeed, the rule is 
 general that where the statute requires the business to be 
 stated in the warrant or notice, this is absolutely essential, 
 and the meeting must be confined to those matters." 
 
 ' Sherwin ■». Bugbee, 16 Tt. 439, 444, 1844. In reference to town meet- 
 ings, the statute of Vermont requires that the notice shall be in writing, and 
 shall " specify the business to be done, and the time and place of holding 
 said meeting." Referring to this statute, Redfleld, J. (in Sherwin v. Bugbee, 
 supra), says: " We hare no doubt the place of holding the meeting must be 
 definitely specified. It would hardly do to warn a meeting to be held at 
 some place in the district, or at a designated village, or at one of two or 
 more dwelling houses. So, too, in regard to tirAe, there seems to be a 
 propriety in having it definitely fixed. If the day, only, is named, the 
 question immediately arises, shall the inhabitants be required to attend the 
 whole day ? or, when can the meeting transact the business for which they 
 meet, so as to bind the absent members ? The fact that the meeting ad- 
 journed to another day and hour, will not help the matter, on the obvious 
 principle that the adjourned meeting could have no more authority than 
 the original meeting, which was void." 
 
 Where it appears that a meeting was held on the day appointed, it will 
 be presumed that it was held at a suitable time in the day, and pursuant to 
 the notice. A meeting should be opened within a reasonable time after the 
 hour specified ; but what is such reasonable time, depends upon circum- 
 stances. School District v. Blakeslee, 13 Conn. 337. Where a meeting was 
 called at a certain school house, it was held to mean within the walls of the 
 building. An assemblage of some of the citizens in the highway near the 
 school house, and an adjournment to another place, is not a legal meeting, 
 and its trangaptions are not binding, though the school house was locked, 
 and the weather cold and no fire in the building. Chamberlain 8. Dover, 
 13 Maine, 466, 1836. See, also, Haines ». School District, 41 Maine, 246, 
 1856 ; Kingsbury v. School District, 13 Met. 99, 1846. 
 
 » Hunt ». School District, 14 Vt. 300, 1843 ; Sherwin «. Bugbee, 16 Vt. 
 439 ; S. C, 17 II. 837, 444, 1844. " Such meetings are void for all purposes 
 of transacting business not specified " in the written notice required by the 
 statute. It. per Bedfleld, 3. 
 
 ' n. Johnson o. Wilson, 3 N. T. 303; Tucker ®. Aiken, 7 N. H. 113; 
 Baker v. Shepherd, 4 Fost. 308. 
 
 By-laws passed at a town meeting not duly warned (as, for example, 
 
Ch. X.]. NEW ENGLAND TOWN MEETINGS. 325 
 
 § 207. At a meeting duly constituted and organized, a 
 majority of tte members, electors or corporators present, in 
 the absence of any statute either conferring or denying the 
 power, have the implied incidental corporate right to ad- 
 journ the meeting to another time, either on the same or to 
 a future day, and, if fairly done, to another place within 
 the corporate limits.' 
 
 where the notice did not " specify the objects " of the meeting as required 
 by statute), are void. Hayden n. Noyes, 5 Conn. 391, 1824 ; Willard ®. Kil- 
 lingworth, 8 Ih. 247. The party claiming under a by-law must show it 
 was passed at a meeting duly warned. 8 Conn. 347, sufra. And must, 
 perhaps, show all the essentials of its vaKdity, such as the due passage, 
 publication, &c. Ih. 
 
 Where the statute requires that all matters to be acted upon at the meet- 
 ing shall be inserted in the warrant or notice, a failure to do this will avoid 
 as to both parties any contract that may be made, or any act that may be 
 done, with respect to a matter not embraced in the warrant or notice. 
 Cornish b. Pease, 18 Maine (1 Appl.) 184, 1841; Spear b. Robinson, 29 
 Maine (16 Shep.) 531, 1849; Little «. Merrill, 10 Pick. 643; Blackburn «. 
 Walpole, 9 Pick. 97; Torrey e. Millbury, 21 Pick. 64; 11. 75; Hasdell 'o. 
 Hancock, 3 Gray, 526; Jones %. Andover, 9 Pick. 146, 1829; Kingsbury ». 
 School District, 12 Met. 99, 1846 ; Eand «. Wilder, 12 Gush. 294, 1853. But 
 if the matter is embraced, and the meeting duly met, it is no objection to 
 its action that it was had near the close of the meeting, and when a por- 
 tion of the voters had retired. Dean v. Jay, 23 Maine (10 Shep.) 117, 1843. 
 Subsequent legal meeting may ratify acts of previous meeting not duly 
 notified. Jordan v. School District, 38 Maine, 164. By participating in a 
 meeting illegally called, a party is not estopped to deny its legality. School 
 District n. Atherton, 12 Met. 105. 
 
 ' Chamberlain v. Dover, 13 Maine (1 Shep.) 466, 1836 ; People v. Mar- 
 tin, 1 Seld. (N. Y.) 22, 1851 ; Hubbard v. Winsor, 15 Mich. 146 ; Kimball 
 •0. Marshall, 44 N. H. 465, 1863; Goodell s. Baker, 8 Cowen, 286. Electors 
 exclusive judges of necessity of adjournment of town meeting, and such ad- 
 journment to next day, and at another place, in the town twenty miles dis- 
 tant, was considered lawful. Tb. The statute provided that if at any annual 
 town meeting no place is fixed by the electors for the next annual town 
 meeting, such town meeting shall be held at the place of the last annual 
 town meeting. 1 B. Sts. N. T. 340, sec. 3. Held, in People ». Martin, 1 
 Seld. 22, that though the place of meeting was thus contingently fixed by 
 statute, the electors, being duly assembled, might adjourn it for the residue 
 of the day to another place in the town. Concluding his opinion in this case, 
 Paige, J., well remarks: "I confess that I have had some difiSculty in com- 
 ing to this conclusion, and I think the power [which is decided to exist] of 
 adjourning a town meeting to another time and place may, under peculiar 
 circumstances, be oppressively exercised, and lead to a defeat of the popu- 
 
326 MUNICIPAL COKPORATIONS. [Ch. X. 
 
 Constitution and Meetings of Councils or Select gonerning 
 todies ; and herein of Quorums and Majorities, 
 of Integral Parts, and of Stated, Spe- 
 cial, and Adjourned Meetings. 
 
 § 308. Unlike the towns of New England, in whicli all 
 the qualified voters meet and act in their primary capacity, 
 the councils of cities and towns ar» representative bodies, 
 the number of whose members is fixed by law, and they are 
 elected by the legal voters of the incorporajted place. This 
 council is the governing body of the municipal corporation, 
 and the corporation, unless it is otherwise provided, can act 
 and be bound only through the medium of the council.' 
 The charter or constituent act of the place usually contains 
 provisions as to the constitution of the council, its stated 
 and special meetings, and the notice thereof requisite to be 
 given, how many shall constitute a quorum, and an enume- 
 ration of its powers. The usual scheme of the organization 
 of the council is to divide the territory of the incorporated 
 place into districts or wards, the voters in each of which 
 elect one or more representatives annually, called aldermen, 
 or councUmen, and these, when duly convened, constitute 
 the council, over which the mayor or head executive ofllcer 
 of the corporation presides, sometimes constituting a mem- 
 ber of the council, and in other instances, having power to 
 
 lar will. This power ought not to be exercised except in a case of extreme 
 necessity." 1 Seld. 27. 
 
 After a valid ad^ovjrnment, acts by a portion of the voters who remain are 
 inralid. Kimball v. Lamprey, 19 N. H. 315. In Massachusetts, an adjourn- 
 ment of a meeting should appear of record, wiA. parol evidence of an adjourn- 
 ment to another day is held to be inadmissible. Taylor v. Henry, 3 Pick. 
 397, 1824. See State «. Jersey City, 1 Dutch. (N. J.) 309, and chapter on 
 Corporate Records and Documents, post, sec. 335. The statute of New York 
 (1 R. Sts. 342) only requires the town meeting to be kept open during the 
 day time, or some part thereof, but not that it shall be kept open during the 
 whole and every part of the day, between the rising and setting of the sun. 
 People «. Martin, 1 Seld. (N. T.) 22, 1851. 
 
 ' Central Bridge Corp. ». Lowell, 15 Gray, 106, 116, 1860, where an 
 act affecting a city was, by its terms, to take eflfect on acceptance by 
 the city, it w'as held that the acceptance might be made by the governing 
 body. J6. 
 
Ca. X.] CONSTITUTION OF COUNCILS. 327 
 
 vote only when there is a tie, or to give a second vote in 
 case of a tie.' 
 
 § 209. The doctrine of the English courts as to the old 
 corporations in that country, that the mayor was an inte- 
 gralpart of the corporatioji, whose presence, unless other- 
 wise provided in the charter, was necessary to a valid cor- 
 porate meeting ; that during a vacancy in the office of 
 mayor, the corporation could do no valid act, unless ex- 
 pressly empowered, except to elect another, and thus com- 
 plete the body, and that the acts of the corporation under 
 the presidency of any other than a mayor de jure, were 
 voidable, has, it is believed, no application to the office of 
 mayor io the corporations of this country.' 
 
 § 210. The right of (he mayor or other officer to preside 
 over the meeting of the council is afrancMse, and may be 
 tested by an information in the nature of a quo warranto,' 
 
 ' Power to preside and give casting vote at meetings of a religious cor- 
 poration construed. People v. Rector, &c., 48 Barb. 603. 
 
 ' Infra, sec. 223; "Welch ». Ste. Genevieve, 1 Dillon 0. C. 130, 1871. 
 And see ante, chap. IX. as to powers and duties of the mayor, sees. 147, 148. 
 
 The presiding officer of a town meeting, with statute authority to main- 
 tain order, may make a valid order, though it be by parol only, for the 
 removal of a disorderly person who disturbs the business of the meeting. 
 Parsons v. Brainard, 17 Wend. 532, 1837. Approval by the moA/or of proceed- 
 ings of the council, may, by special requirement of charter, be essential to 
 their validity. Graham d. Carondolet, 33 Mo. 363, 1862; Kepner «. Com- 
 monwealth, 40 Pa. St. 124. "When not. State «, Jersey City, 1 Vroom, 93, 
 148; see Dey v. Jersey City, 19 N. J. Eq. 413; Taylors. Palmer, 81 Cal. 241 ; 
 State ». Newark, 1 Dutch. (N. J.) 399 ; post, sec. 365, note. 
 
 * Cochran v. McCleary, 32 Iowa, 75, 1867, and authorities there cited ; 
 Tleynolds ®. Baldwin, 1 La. An. 163, 1846 ; Eex i>. Williams, 1 Burr. 402 ; 
 Willc. 456, pi. 337; Rex v. Hertford, 1 Ld. Raym. 426; approved, Common- 
 wealth i>. Arrison, 15 Serg. & Rawle, 130. Ante, chap. IX. sec. 147. In 
 Cochran ®. McCleary, supra, it was held that the mayor, in cities of the 
 second class, organized under the General Incorporation Act (Rev. of 
 Iowa, 1860, chap. LI.) is not, ex-offieio, a member of, nor has he any right to 
 preside over, the city council; that the council was composed exclusively of 
 trustees or aldermen, and elected its own presiding officer. The mayor of 
 New York is not a member of the common council, and the common coun- 
 cil, having the power by statute to appoint to office, may exercise it with- 
 out the concurrence of the mayor, who has no veto power upon the appoint- 
 ment, Achley's Case, 4 Abb; Pr. Rep. 35, 1856. 
 
328 MUNICIPAL CORPORATIONS. [Ch. X. 
 
 ■but cannot be determined, at least, ordinarily, unless by 
 statute provision, on a bill in chancery to enjoin, or in any 
 other indirect or collateral proceeding.' 
 
 § 211. Who shall compose the council or governing' 
 body of the corporation is, in all cases, prescribed by the 
 charter or incorporation act, but the language used has been 
 such as sometimes to lead to controversy." The organic 
 act of a city provided " that the intendant of police shall 
 have a seat in the board of commissioners [the governing 
 body of a city corporation], and when present, shall pre- 
 side therein ; in Ms absence, the board shall appoint a 
 chairman pro tempore.^' It was held that the intendant 
 was thereby constituted one of the commissioners, and had 
 the right to participate in making ordinances.' Where the 
 
 ' Cochran ®. McCleary, 32 Iowa, 75, 86, 1867; Topping v. Gray, 7 Hill 
 (N. T.) 359; affirming S. C, 9 Paige, 507; Markle v. "Wright, 13 Ind. 548; 
 Hnllman «. Honcomp, 5 Ohio, 337 ; People ®. Cook, 4 Seld. 67 ; affirming 
 S. C, 14 Barb. 357 ; Mayor v. Conner, 5 Ind. 171 ; Mosley v. Alston, 1 PhiU. 
 790; Lord «. The Governor, &c., 3 PhiU. 740; Peabody ®. Flint, 6 Allen 
 (Mass.) 52 ;, Hagner e. Heyberger, 7 Watts* Serg. 104; Peoples. Carpenter, 
 34 N. T. 86; People «. Draper, 15 N. Y. 632; Peoples. Insurance Company, 
 3 Johns. Ch. 371 ; People v. Same Company (quo warranto), 15 Johns. 858 ; 
 Commonwealth v. Bank (quo warranto), 38 Pa. 289; in chancery, li. 379; 
 Hughes®. Parker, 30 N.H. 58; Hx parte Strahl, 16 Iowa, 369; Updegraff s. 
 Crans, 47 Pa. St. 103; Facey v. Fuller, 33 Mich. 537; see Kerr v. Trego, 47 
 Pa. St. 393, cited infra, sec. 213. 
 
 « Cochran v. McCleary, 23 Iowa, 75, 1867. 
 
 ' Raleigh v. Sorrell, 1 Jones (North Car.) Law, 49, 1853. In this case the 
 Supreme Court of North Carolina admit (arguendo) that an officer — as, for 
 example, the intendant — ^has no rigKt, under the act of incorporation, to sit 
 with the legislative body of the corporation, but if he does so and acts with 
 them, that an ordinance thus passed will be void, because the powers given 
 to the corporation must be exercised in strict conformity to the special del- 
 egation of authority, and because, in the case supposed, the ordinance ia 
 not passed by the body to which the power is given ; citing Rex «. Croke, 
 Cowp. 36. The view of the court is in accordance with the rule of the 
 English courts as applied to their corporations. Thus, Mr. Willcock says : 
 "It may 'be unnecessary to add, that whenever a particular business is dele- 
 gated to a select body, if others join in the performance of it, the act ia 
 void ; as if the mayor, aldermen, and commonalty join in making a by-law 
 which is directed to be made by the mayor and aldermen. For if othera 
 are allowed to vote, a by-law might be established, although all those to 
 whom the power is specifically delegated should be in the minority." Corp. 
 
Ch. X] CONSTITUTION Or COUNCILS. 339 
 
 power to legislate for the corporation is vested in "the* 
 mayor and councilmen," the council by itself cannot legis- 
 late, but must act in conjunction with the mayor. In de- 
 ciding the point the court observes : "If a simple resolution 
 [instead of an ordinance] would be sufficient, yet, before it 
 would have any validity, it would necessarily have to be 
 signed by the mayor as a part of the law-making power — 
 the co-ordinate action of both is required."' 
 
 § 212. It is undoubtedly true, as already stated, that 
 the corporate authority must he exercised hy the proper 
 tody. Thus, where a town was organized under a charter 
 which vested the corporate powers of the place in a presi- 
 dent and six trustees, and subsequently a general incorpo- 
 ration act was passed which was erroneously supposed to 
 apply to the town, and under which the town elected diflfer- 
 ent officers from those provided in the special charter, at a 
 different time and constituting a different body, it was held, 
 in the absence of legislative ratification, that this latter body 
 could not exercise the authority of the corporation, since 
 they were a body without any legal existence, and were not 
 the body authorized to act for the corporation. The prin- 
 ciple that the acts of defa^to officers are valid was consid- 
 ered not to be applicable.' 
 
 § 213. Where there are two bodies, each of which 
 claims to be the regular organized council, and is acting as 
 
 68, pi. 128; Parry c. Berry, Comyns, 269; Eex v. Head, 4 Burr. 2521; 
 Hoblyn v. Regem, 6 Bro. P. 0. 530; Eex ». Westwood, 4 B. & C. 799, 818; 
 Green v. Durham, 1 Burr. 131. Whether the mere fact that a single un- 
 authoiTzed person is, by a mistaken construction of the charter, allowed to 
 participate in the transaction of a meeting of the council, would, in this 
 country, be held necessarily to avoid them, is a question which, perhaps, 
 remains yet to be settled. It has been held, that if persons who are not 
 qualified vote at a town, parish, or district meeting, without objection or 
 challenge at the time, proof of that fact cannot afterwards be made with a 
 view to invalidate the proceedings. Sutton «. Cole, 3 Pick. 233, 183*5. So, 
 if such a meeting is called by persons acting under color of authority, it will 
 be legal if no exception to their authority is taken at the time. Tb. 
 
 ' Saxton v. Beach, 50 Mo. 488, 1872, per Wagner, J. 
 
 ' Decorah ■». Bullis, 35 Iowa, 13, 1868 ; Welch v. Ste. Genevieve, 1 DiUon 
 C. C. 130, 1871. Infra, sec. 314. 
 
830 MUNICIPAL COEPOEATIONB. [Ch. X 
 
 such to the detriment of the public, the hody xigntfully en 
 titled to act may have an injunction to restrain the other 
 from interference with them. To the argument, that in re- 
 lation to public corporations, the attorney general alone 
 can tile such a bill, the court replied : " We do not think 
 so. It is right lor those to whom public functions are in- 
 trusted to see that they are not usurped by others."' 
 
 § 214. In this country the dextrine is everywhere de- 
 clared, that the acts of de facto officers, as distinguished 
 from the acts of mere usurpers, are valid, and the principle 
 extends not only to municipal oflBlcers generally, but also to 
 those composing the council, or legislative or governing . 
 body of a municipal corporation." But in order that there 
 may be a de facto officer, there must be a de jure office ; 
 and the notion that there can be a de facto office has been 
 characterized as a political solecism, without foundation in 
 reason and without support in law ; and, therefore, a person 
 
 ' Kerr o. Trego, 47 Pa. St. 392, 1864, per Lowrie, C. J. ' Mode of or- 
 ganizing councils to which new members are to be admitted, and tests, in 
 case of conflicting councils, for determining which is the legal organization. 
 lb. Buprn, sec. 143, note; sec. 310; sec 193, note. 
 
 ' Scoville V. Cleveland, 1 Ohio St. 126, 185§ ; Decorah v. Bullis, 25 Iowa, 
 13, 1868; Cochran v. McCleary, 33 Iowa, 75, 84; Eh parte Strahl, 16 Iowa, 
 360; People ». Stevens, 5 Hill, 616; State «. Jacobs, 17 Ohio, 143; Peoples, 
 Bartlett, 6 Wend. 432 ; Pritchard e. People, 1 Gilm. (^111.) 539 ; People ». 
 Eunkle, 9 Johns. 147 ; Trustees, &c. ii. Hill, 6 Cow. 38 ; Williams v. School 
 District, 31 Pick. 75 ; see Rex «. Mayor, &c., 9 Mod. Ill ; De Grave ®, 
 Monmouth, 4 Car. & P. 411 ; Laver ®. McGlachUn, 38 Wis. 364; post, sec. 
 716, note ; Cushing v. Frankfort, 57 Maine, 541. In a case in the House of 
 Lords, decided in 1851, it was held, that an act done by a definite body, 
 under authority of parliament, was not invalid because officers de facto 
 joined with officers de jure in the doing of it. The judges having unani- 
 mously declared this to be their opinion; the Lord Chancellor said: " The 
 opinion of tbe judges as to vestrymen de facto and dejure was of great im- 
 portance. When it was considered that there were many persofas who were 
 charged with very important duties, and whose title to perform those duties 
 or to exercise the powers necessary for their performance, the 'public could 
 not easily ascertain at the time, and when it was remembered what incon- 
 veniences would arise if the validity of their acts depended on the propriety 
 of the election of the persons who had to perform them, the value of the 
 clear enunciation of the principle thus made by the judges was very great, 
 and in the correctness of it he begged to declare Ms entire concurrence. 
 Scadding s. Lorant, 5 Eng. Law & Eq. 16, 80, per Lord Chancellor Thuro. 
 
Oh.X] constitution of councils. 33] 
 
 cannot claim to be a de facto officer of a municipal corpora 
 tion when the corporation^sr people have, in law, no power, 
 in any event, to elect or appoint such an officer. ' 
 
 § 215. The common law principle, that if an act is to be 
 done by an indefinite body it is valid, if passed by a 
 majority of those present at a legal meeting, no matter how 
 small a portion they may constitute of the whole number 
 entitled to be present, has been deemed applicable to the 
 towns of New England. In those towns the corporate 
 power resides, as we have seen, in the inhabitants, or 
 citizens at large, and these form the constituent body. It 
 the meeting has been duly called and warned, those who 
 assemble, though less than a majority of the whole, have 
 the power to act for and bind the whole, unless it is other- 
 wise provided by law. Those who remain away are justly 
 and conclusively presumed to assent to what may lawfully 
 be done by those who attend." 
 
 § 216. The common law rules as to quorums and 
 
 ' Decorah «. BuUis, 35 Iowa, 15, 18, 1868. Hildreth's Heirs v. Mclntire's 
 Devisees, 1 J. J. Marsh. (Ky.) 206; People v. ■White,_24 Wend. 530, 540, 
 541 ; Carleton v. People, 10 Mich. 350 ; Welch v. Ste. Genevieve, 1 Dillon 
 C. C. 130, 1871; supra, sec. 313; post, chap. XXI. ; pott. sec. 716. 
 
 * Damon « Granby, 3 Pick. 345, 355, 1834 ; Commonwealth v. Ipswich, 3 
 Pick. 70; Williams v. Lunenhurg, 31 Pick. 75; Church Case, 5 Kobert 
 (N. T.) 649, 1867; First Parish «. Stearns, 21 Pick. 148,1838; State®. Binder, 
 88 Mo. 450, 1866. 
 
 At a popular election, a candidate for a municipal office received a 
 plurality of all the votes cast, but not a majority. There was no provision 
 of the charter nor any by-law on the subject. The usage in the corporation 
 seemed to have been to consider the person having the highest number of 
 votes, although not a majority of the whole, as duly elected. The statute 
 in relation to state elections expressly provided . that " plurality, or the 
 highest number of votes, should make a choice." Under these circum- 
 stances, the majority of the court were of opinion that the common law 
 rule, that a majority is necessary to a valid election, applied, and was not 
 controlled by the terms or spirit of the general election law of the state. 
 State V. Wilmington, 3 Haning. (Del.) 304, 1840. Earrington, J., dissented, 
 holding (and', as it would seem, with reason) that the plurality principle 
 had been the one "invariably adopted as most in consonance with our 
 institutions in all cases where the law of election is silent in this respect." 
 li. p. 305. See First Parish v. Steams, 21 Pick. 148. As to municipal eleo- 
 lions: Ante, chap. IX. 
 
MUNICIPAL C0BP0RATI0N8. [Oh. X. 
 
 majorities, established with, reference to corporate bodies, 
 consisting of a definite nymber of-corporatdrs, have also, in 
 general, been applied to the common council, or select 
 goveraing body of onr municipal corporations, where the 
 matter is not specially regulated by the charter or statute. 
 Thus, to use Mr. Dane's illustration, if the body consists of 
 twelve common councilmen, seven is the lea^t number that 
 can constitute a valid meeting, though four of the seven 
 may act.' Accordingly, a statnt# in reference to a definite 
 body, declaring that a ^^ majority of those present at any 
 regular meeting shaM be competent" to transact business, 
 leaves the number which may form a quorum to be de- 
 termined by the common law. — ^that is, there must be at 
 least a majority present, and such a provision, it was con- 
 sidered, did not authorize a minority of the whole body to 
 act.' 
 
 § 317. So, if a board of village trustees consists of five 
 members, and all, or four, are present, two can do no valid 
 act, even though the others are disqualified, by interest, 
 from voting, and therefore omit or decline to vote ; their 
 assenting to the measure voted for by the two will not make 
 it valid. If three only were present they would constitute 
 a quorum, then the votes of two, being a majority of the 
 quorum, would be valid ;' certainly so where the three are 
 aU competent to act.* 
 
 § 218. In another ease, the power of amotion was con- 
 ferred upon a city council to be exercised " 5y a note of 
 two-thirds of that body," and this was considered to give 
 the power of removal to two-thirds of a legal quorum. 
 Two-thirds of the whole number of members composing the 
 council were held not to be required. The point was ad- 
 
 ' 5 Dane Abr. 150; Ex parte •Willcocks, 7 Cow. 403, 410, 1837, ndte d, 
 and criticism on the rule stated in 1 Kyd on Corp. 418, 435; 2 Kent, Com. 
 293; Buell v. Buckingham, 18 Io*a, 284, 1864; Regents. &c. e. Williams, 9 
 Gill & Johns. (Md.) 365; Mills o. Gleason, 11 "Wis. 470. 
 
 » Ex parte Willcocks, 7 Cow. 403, 1827; 25. 463, and note; lb. 526, and 
 note. 
 
 ' Coles v. Williamsburg, 10 Wend. 658, 1833. 
 
 * Buell V. Buckingham, 16 Iowa, 284, 1864, and cases cited. 
 
Ch. X.] CONSTITUTION OF COUNCILS. 333 
 
 mitted to be close, and the French text of the charter was 
 relied on as favoring the conclusion reached.' 
 
 § 219. In a case which arose in California, the charter 
 of the city contained a provision that no ordinance should 
 be passed by the common council, ex^^ept by a majority of 
 all the members elected. Eight were elected, and it was 
 decided, under the above-mentioned requirement of the 
 charter, that an ordinance could not be passed by a vote of 
 four against three, since four did not constitute a majority 
 of all the members elected, although it did constitute a 
 legal quorum.' 
 
 § 220. In the absence of special provision, the major 
 'part of those present, at a meeting of a select body, must 
 concur in order to do any valid act. Therefore, when it 
 appeared that thirteen ballots were cast when the members 
 present were only entitled to give twelve votes, of which 
 seven were for one person and six for another, there is no 
 election, and the council, though it has declared that the 
 person receiving seven votes was duly elected, may subse- 
 quently rescind its action and proceed to a new election.' 
 And in South Carolina the general rule is recognized, and a 
 majority of the board of managers of elections — having 
 power, by statute, to determine the validity of contested 
 elections — is a quorum, and a majority of that quorum may 
 act and decide.' 
 
 § 221. And, as a general rule, it may be stated, that 
 
 • Wamock ®. Lafayette, 4 La. An. 419, 1849. See, on this point, Lo- 
 gansport b. Legg. 30 Ind. 315. 
 
 ' San Francisco «. Hazen, 5 Cal. 169, 1855. See, also, Oakland v. Car- 
 pentier, 13 Cal. 540 ; McCracken v. San Francisco, 16 Cal. 591 ; Piemental «. 
 San Francisco, 31 Cal. 351. 
 
 ' Labonrdette ». Municipality, 2 La. An. 537, 1847. 
 
 • State V. Deliesseline, 1 McCord (South Car.) 53, 1831, where the sub- 
 ject is elaborately considered by NoU, 3. ; S. P. State v. Huggins, Harper 
 (South Oar.) Law, 94, 1834, further holding that where, of eighteen mana 
 gers appointed by the legislature, two refused to qualify, one was disquali' 
 fied, and one dead, the remaining fourteen (from necessity and public con- 
 venience) properly constituted the board, and might act by a majority of 
 the fourteen. The decision rests upon the legislative intent, deduced from 
 various provisions of the act, to commit the matter to the aetmg managers. 
 
334 MUNICIPAL CORPORATIONS. [Ch. X. 
 
 not only where tlie corporate power resides ia a select "body, 
 as a city council, but where it has been delegated to a com- 
 mittee or to agents, then, in the absence of special provis- 
 ions otherwise, a minority of the select body, or of the 
 committee or agents, are powerless to bind the majority or 
 do any valid act. If all the members of the select body or 
 committee, or if all of the agents are assembled, or if all 
 have been duly notified, and the minority refuse or neglect 
 to meet with the others, a majqlity of those present may 
 act, provided those present constitute a majority of the 
 whole number. In other words, in such case, a major part 
 of the whole is necessary to constitute a quorum, and a 
 majority of the quorum may act. If the major part with- 
 draw so as to leave no quorum, the power of the minority 
 to act is, in general, considered to cease.' But where the 
 duties are purely ministerial, and not judicial, or are of 
 such a nature as to exclude the idea of action as a body or 
 board, and where they are devolved on public officers or 
 agents rather than on the agents of corporations, the rule 
 above stated (as the cases below referred to will show) has 
 been relaxed, and, in some instances, deemed wholly in- 
 applicable.' 
 
 1 Kingsbury v. School District, 13 Met. 99, 1846 ; Day v. Green, 4 Cush. 
 438, 439, 1849; Fisher e. School District, 4 Cush. 494, 1849; Coffin ». Nan- 
 tucket, 5 Cush. 369, 1850; 11 Cush. 483; Damon e. Granby, 3 Pick. 345, 
 355, 1834 ; State ®. Jersey City, 3 Dutch. (N. J.) 493 ; Chai'les v. Hoboken, 
 li. 303 ; Dey e. Jersey City, 19 N. J. Eq. 413, 1869 ; Baltimore «. Poultney, 
 35 Md. 18, 1866. 
 
 ' With respect to persons or officers appointed by law to act judidaUy in 
 &piMic matter, it is generally held, there being no proTision of statute to 
 the contrary, that where all meet, and act, a majority may decide and bind 
 the rest, and this notwithstanding the express dissent of the minority, or 
 their wrongful withdrawal before the act is consummated. Mb pa/rte Rogers, 
 7 Cow. 536, 1837 (appraisal of damages by canal appraisers), and see II. note 
 a, and the cases there cited and reviewed ; JS. 764, explanation. See, fur- 
 ther, Em parte Willcocks, 7 Cow. 403, and note ; J}. 463, 468 ; Young ». Buck- 
 ingham, 5 Ohio, 485, 489, 1883; Charles «. Hoboken, 3 Dutch. (N. J.) 303; 
 Martin ii. Lemon, 36 Conn. 193, 1857 ; post, sec. 757. 
 
 The statute authorized the appointment of three levee inspectors, and 
 prescribed their duties, which involved the exercise of judgment. Held, 
 that all must meet and act, and that the action of a majority in the 
 absence of the third was void. Ballard ». Davis, 31 Miss. 535, 1856. 
 
 Where a majority of a committee is authorized to act, they constitute a 
 
Ch. X.] CONSTITUTION OF COUNCILS. 335 
 
 § 223. The doctrine of the English courts is, that all of 
 the integral parts of a corporation necessary to do an act 
 
 party capable of contracting, and another member of a committee, not act- 
 ing as such, but as an individual, constitutes another party capable of being 
 contracted with. It is accordingly held, that a majority of such a conimittea 
 may contract with or employ one of their own number, and such contract, if 
 fairly made_^nd without fraud or corruption, will be binding upon the cor- 
 poration. Junkins s. Union School District, 39 Maine, 330 ; Buell v. Buck- 
 ingham, 16 Iowa, 384; post, sec. 371 note, sec. 330; Willard «. Newbury- 
 port, 13 Pick. 337. But a contract made by less than a majority of a commit- 
 tee of the corporation, though in the name of the whole, binds neither -party. 
 Post, sec. 376. But it will be binding if the authority was joint and several, 
 or if ratified. Adams v. Hill, 16 Maine (4 Shep.) 315, 1889 ; Kupfers. South 
 Parish, &c., 13 Mass. 185, 1815; Allen e. Cooper, 33 Maine, 183, 1843. In 
 Damon v. Granby, 3 Pick. 345, 1842, this distinction is taken. If a public 
 corporation appoints a committee of its own members, a majority may bind, 
 for such is the usage and. the common law in relation to corporations. But 
 if the authority is given to persons not members of the body, such persons 
 are agents, and not technically a committee, and all must concur, unless it 
 appear that it was intended that a majority should act. See authorities cited 
 by Solicitor General Davis in same case, p. 350 ; Viner's Ab. title Authority, 
 B. pi. 7. Further as to binding force of the act of majority of a committee 
 or board of selectmen, see Jones v. Andover, 9 Pick. 146; Crommett*. Pear- 
 son, 18 Maine (6 Shep.) 344, 1841 ; Junkins v. School District, 39 Maine, 330, 
 1855; Inhabitants, &c. n. Cole, 3 Pick. 333, 344; Kingsbury®. School Dis- 
 trict, 13 Met. 99, 1846 ; Keyes v. "Westford, 17 Pick. 373, 1835 ; Green «. Miller, 
 6 Johns. 39, 1810 ; Grindley v. Barker, 1 Bos. & Pul. 386, per Eyre, C. J. ; King 
 V Boston, 3 Term R. 593; Guthrie v. Armstrong, 5 Earn. & Aid. 638, 1833 
 where it was held, that a power given to fifteen jointly and severally was 
 well executed by four. A school committee appointed according to and 
 under a statute are public officers within the meaning of the statute which 
 gives a majority of such officers authority to act for the whole. Keyser v. 
 School District, 35 N. H. 477, 1857. Where an authority is given, by law, 
 to a committee, or to more persons than one, to do an act of a public nature, 
 one alone, unless there be something to show such intention, cannot act 
 independently and without the concurrence of the others, or at lefist of a 
 majority. If the act is ministerial, a majority at least must concur; but 
 unless required, or such is the practice, they need not act as a board, and 
 be convened or notified to be convened as such. But if tha act is judicial 
 in its nature, that is, requiring the exercise of judgment, unless special pro- 
 vision is otherwise made, all must meet or have notice to meet, a majority 
 will constitute a quorum, and a majority of the quorum will be competent 
 to act. Martin n. Lemon, 36 Conn. 193, 1857. In this case it was ruled, that 
 one of a committee of three to remove encroachments on highways could 
 act alone. Committees of public corporations have sometimes been held to 
 be governed, with respect to meeting and notice, by different rules from a 
 board which has necessarily to be assembled or convened before it can act. 
 
936 MUNICIPAL CORPORATIONS. [Ch. X. 
 
 miist not only meet, but remain present till the act is com- 
 pleted ; and therefore if one of' snch parts deserts or with- 
 draws, though wrongfully, and to defeat any action, before 
 the act is consummated, the act is not valid. ' The liability 
 
 And the acts of a majority of such committees hare been considerecl valid, 
 though some member of the committee was not' notified. Gallup v. Tracy, 
 (town committee to stake out oyster grounds), 35 Conn. 10, 1856. But 
 compare Martin v. Lemon, 26 Conn. 193. And see Damon v. Granby, 3 
 Pick. (Mass.) 345, 354 ; Grindley ». Bark?t, 1 Bos. & Pul. 339 ; Keeler ». 
 Frost, 33 Barb. 400; Perry ». Tyner, lb. 137. Where a public authority is to 
 be exercised by two oflSoers — a number not admitting of a majority — reg- 
 ularly, both should act ; yet, tp prevent a failure of justice, it seems one 
 may, in cei:tain cases, as where the other is dead, disqualified, or absent, 
 act alone. But certain it is, that where one only acts, the consent of the otAer 
 wUl le presumed. This is an application of the strong presumption which 
 obtains in favor of the performance of official duty. Downing v. Rugar, 31 
 Wend. 178, 1839, and authorities cited. This case also holds, that the pre- 
 sumption of consent should be rebutted only by the testimony of the other 
 officer. Th. 185. " It is a general principle, that where a board of officers 
 (for example, overseers of the poor) is constituted to perform a duty pro- 
 vided by law, the act of the majority is the act of the whole body." Per 
 Bennett, J., Wolcott v. Wolcott, 19 Vt. 37, 39, 1846. See, also, King®. Bee- 
 sten, 3 Term K. 593 ; Jones v. Andover, 9 Picfe 146. 
 
 Under the statutes of Pensylvania, all powers conferred upon county 
 commissioners may be legally executed by two without the concurrence of 
 the third. Commissioners «. Leckey, 6 Serg. & Rawle, 166; Cooper ». 
 Reansbey, 8 Watts, 138; Curtis v. Butler Co., 34 How. (U. S.) 435. Jeffer- 
 son Co. ■». Slagle, 66 Pa. St. 303, where it is held that a contract by two 
 county commssioners withia tie scope of their authority bound the county, 
 although not made at their office. 
 
 Where three commissioners are appointed to contract for site for poor 
 house, two of them cannot make a valid purchase. Pulaski Co. «. Lincoln, 
 4 Eng. (Ark.) 330, 1849. Action of less than a majority of commissioners of 
 public Ibuildings, appointed by act of legislature, is void. Petrie ®. Doe, 
 30 Miss. 698, 1856. A statute declaring that every board of township trus- 
 tees, " and the members thereof," shall be overseers of the poor, was con- 
 strued to make eaah member an overseer, with power to act. County Com- 
 missioners V. Jones, 7 Ind. 3, 5, 1855. When majority may lawfully execute 
 powers of a public nature. Commissioners ». Lecky^ 6 Serg. & Rawle (Pa.), 
 170 ; Baltimore v. Turnpike, 5 Binn. 484 ; McCready «. Guardians, 9 Serg. & 
 Rawle, 99 ; Commonwealth «. Commissioners, 9 Watts, 466, 471 ; Cooper ■». 
 Lampeter, 8 Watts, 128; Caldwell o. Harrison, 11 Ala. 755; Commissioners 
 e. Tarver, 31 11. 661; Crist o. Town Trustees, 10 Ind. 453; Schenck ». Peay, 
 1 Dillon. C. C. R. 367. 
 
 ' Kings. Williams, 3 Maule & SeL 141 ; following King v. Butler, 8 East, 
 888 ; questioning King «. Norris, 1 Barnard. K. B. 385 ; cited and reviewed 
 
Ch. X.] CONSTITUTION OP COUNCILS. 337 
 
 of this rule to abuse, since it enables one of the parts of a 
 joint meeting or assembly to defeat any action whatever, 
 has led the courts in this country to deny its applicability 
 here, or to apply it with caution." 
 
 7 Cow. 526, note; King v. Miller, 7 Term R. 378; 3 Kent's Com. 393. Mr. 
 Willcock vindicates the rule, but on grounds not very satisfactory, Corp. 
 53, 54. Supra, sec. 309. 
 
 ' Ex parte Humphreys, 10 Wend. 613, 1834; People b. Batchelor, 23 N. 
 T. 128, U6, per Dmio, J.; First Parish «. Steams, 31 Pick. 148, 1838; Coles 
 Co. v. AlUson, 23 HI. 437. 
 
 The common law rule, that to the diie constitution of a corporate assemhly a 
 majority, at least, of each integral or component part or body, must neces- 
 sarily be present, was departed from by the Supreme Court of New Hamp- 
 Bhire in the case of Beck «. Hanscom. By the charter, the city government 
 of Portsmouth was vested in a mayor, "one council of seven, to be denom- 
 inated the board of aldermen, and one council of twenty-one, to be denom- 
 inated the common council, which boards should, in their joint capacity, be 
 denominated the city council." It was further provided by the charter, 
 that a "majority of each board shall constitute a quorum; " that the two 
 bodies shall sit and act separately, except "when the two are required to 
 meet in convention;" that at the meeting of the "city council in conven- 
 tion, if it shall appear that a majority of either of said bodies is not pres- 
 ent," the members may compel the attendance of the absentees, &c. The 
 bDardof aldermen and the common council separately voted to meet in 
 convention on the 13th of June, for the choice of city officers; but when, 
 the time arrived, only a minority (three out of seven) of the board of alder- 
 men appeared. The common council and these aldermen, twenty-three in- 
 all, being a majority of both boards, proceeded to elect city officers ; and it 
 was held, 1st, that the election was valid ; and 2d, that a majority of the 
 twenty-three present could elect. In reference to this decision it may be 
 observed, that the court take no notice of the power of compelling the at- 
 tendance of the absentees, and that this provision seemed to contemplate 
 the presence of a majority of each of the constituent bodies. The court 
 cite and approve Whitside v. People, 36 Wend. 634, and Ex parte Hum- 
 phreys, 10 Wend. 613 ; in both of which, however, the constituent bodies, 
 so to call them, duly met but refused to act. It is substantially admitted 
 by the court, that the decision they make is not in conformity with the 
 English rule, but they qonsider it to be the one ' ' which will best enable- 
 the government of the city to proceed -with regularity;" and that "after 
 every preliminary step has been properly taken, the mere neglect of one 
 of the constituent bodies to carry its previous vote into effect ought not to^ 
 hinder the other bodies from performing the duties required by the char- 
 ter." Per GilaJmst, 0. J., in Beck ■». Hanscom, supra, 9 f ost. 213, 236. In 
 Kimball v. Marshall, 44 N. H. 465, 1863, Bell v. Hanscom, supra, is ap- 
 proved, and its doctrine applied to a different state of facts. 
 
 Effect of refusal of one of Ub'o distinct lodges to go into a joint meeting,. ' 
 22 
 
3:-?8. MUNICIPAL C0EP0RATI0N8. [Ch. X. 
 
 § 223. The usual division of the meetings of corporate 
 bodies is into (1) stated or regular, and (3) special meetings ; 
 and meetings of either class possess an incidental power of 
 adjournment, from whence we have another class known 
 as adjourned meetings. The time of holding regular or 
 stated meetings is fixed by the charter, or by ordinance or 
 by-law, passed in pursuance thereof, and, in either case, 
 the time thus appointed is presumed to be known to the 
 members of the body ; and unless the charter or by-law 
 otherwise provides, it is their duty to attend such meetings 
 without further or special notice. Absent members, equally 
 with those who are present, are bound by whatever is law- 
 fully done at a regular or stated meeting, or any regular 
 and valid adjourned meeting.' 
 
 § 224. If the meeting be a special one, the general rule 
 is, unless modified by the charter or statute, that notice is 
 necessary, and must be personally served, if practicable, 
 Tjipon every member entitled to be present, so that each one 
 loay be afforded an opportunity to participate and vote." 
 
 or, after being assembled in joint meeting, to participate in "the joint bal- 
 lot" by which oflBcers (by statute) are to be removed or appointed, see, in 
 Court of Errors, Whitside v. The People, 36 Wend. 634, 1841, reversing 
 decision of Supreme Court in same case, 33 Wend. 9. See act of congress 
 of July 35, 1866 (I4 Statutes at Large, 343), regulating the election of 
 United States senators by the legislatures of the several states in joint as- 
 gembly, containing provisions (the necessity for which has been shown by 
 experience) to prevent one of the bodies from defeating action. 
 
 ' People «. Batchelor, 33 N. Y. 138, 1860; Smith v. Law, 31 N. T. 396; 
 Hudson Co. n. State presumption of regularity), 4 Zabr. 718 ; Insurance Co. 
 B. Sanders, 86 N. H. 353. See and compare, State «. Jersey City, 1 Dutch. 
 (N. J.) 309. 
 
 ' People V. Batchelor, 33 N. T. 138, 134, per 8ddm, J. ; Ih. 146, p^r 
 Denio, J. ; Ex pwrte Bogers, 7 Cow. 536, and cases cited in valuable note ; 
 Downing v. Kugar, 31 Wend. 178; Burgess «. Pue, 3 Gill (Md.) 354; Stow 0. 
 Wise, 7 Conn. 314; Harding v. Vandewater, 40 Cal. 77; Smith v. Darley, 3 
 House Lords Cases, 789, 1849. 
 
 At a stated meeting of a select body at which all the members are not 
 present, it is not competent, in the opinion of the Court of Appeals of New 
 York, in the absence of a statute or by-law to that effect, to appoint a 
 future new or special meeting to determine independent matters not taken- 
 .jap, and which could not legally have been taken up, 'at the stated meeting, 
 and to act at such future time, unless all have actual notice. If any one 
 thus entitled to notice does not receive it, and is not present, the action is 
 
Ch. X.] CONSTITUTION OF COUNCILS. ggg 
 
 3y tlie charter of a city, the power of imposing taxes be- 
 longed to the inhabitants assembled in annual town meet- 
 ing. It was provided, that if, at this meeting, no tax was 
 voted, or insuflScient tax, the common council ' ' should call 
 a meeting of the inhabitants, by advertisement or other- 
 wise," for the purpose of having them vote a tax. The 
 court seemed to be of opinion, that the common council 
 were obliged to specify the objects of the call in theii 
 notice, it being a special meeting ; and it decided, that if i1 
 did specify a particular purpose, that any act of the meet- 
 ing, " wholly beside the special purpose of the meeting as 
 stated," was void.' 
 
 § 225. A regular meeting, unless special provision ip 
 made to the contrary, may adjourn to a future fixed day ; 
 and at such meeting it will be lawful to transact any busi- 
 ness which might have been transacted at the stated meet- 
 ing, of which it is, indeed, but the continuation. Unless 
 such be the special requirement of the charter or a by-law, 
 the adjourned regular meeting would not, it is supposed, be 
 limited to completing particular items of business which had 
 been actually entered upon and left unfinished at the first 
 meeting ; but might, if the adjournment was general, do 
 any act which might have been done had no adjournment 
 taken place." Where the meeting, if a regular one, can 
 only act upon a specific matter, or, if a special one, can 
 only act upon matters of which notice has been given to 
 the members, while it is competent, in either case, to ad- 
 journ, the adjourned meeting is, in both cases, limited, 
 equally with the first meeting, to the specified matters.' 
 
 void. People v. Batchelor, 33 N. T. 138, 1860 ; to be read in connection 
 with Smith v. Law, 31 N. T. 396. 
 
 ' Bergen ®. Clarkson, 1 Halst. (N. J.) 353, 1796. See, also, Eex ». 
 Liverpool, 3 Burr. 735; Rex v. Doncaster, It. 375; King ». Mayor, &c., 1 
 Str. 385 ; MacheU v. Nevinson, 3 Ld. Raym. 1355 ; 3 Bac. Abr. 18. 
 
 = Smith V. Law, 31 N. T. 396; Warner e. Mower, 11 Vt. 385; People ». 
 Batchelor, 33 N. Y. 138; Rawlinson on Corp. (5th ed.) 136, note ; Scad- 
 ding V. Lorant, 5 Eng. Law and Equity, 16, 1851 ; People «. Martin, 1 Seld. 
 (N. T.) 33 ; Street Case, 1 La. An. 413 ; Hudsoil Co. v. State, 4 Zabr. 718. 
 Adjournment by minority to day appointed for regular meeting. People ». 
 Rochester, 5 Lansing (N. Y.) 143, 1871. 
 
 • Scadding ». Lorant, 5 Eng. Law and Equity, 16; S. C, 17 Law T. 335^ 
 
340 MUNICIPAL CORPORATIONS. [Ch. X. 
 
 Mode of Proceeding when Convened. 
 
 % 236. After a meeting of the council is duly convened, 
 the mode of proceeding is regulated by the charter or con- 
 stituent act, by ordinances passed for that purpose, and by 
 the general rules, so far as in their nature applicable, which 
 govern other deliberative and legislative bodies. If the 
 council consists of two boards, thfe concurrence of both is 
 essential to valid legislation, and this concurrence must be 
 by simultaneously existing bodies.' The rule of legislative 
 bodies consisting of two branches, that unfinished business 
 at the end of a session is discontinued, and must be after- 
 wards taken up anew, if at all, was considered applicable to 
 the legislative acts Qf the common council of 2few York, 
 composed of a board of aldermen and a board of assistant 
 aldermen." 
 
 H. of L. 1851. In this case, the statute (a local act) required ^tice to be 
 given of a meeting of vestrymen to be held for the purpose of making a 
 rate for the relief of the poor. Such notice was given, specifying the pur- 
 pose of the meeting ; the meeting was held accordingly, on the 13th of 
 August, when it was resolved that a rate should be made; but as the details 
 could not be completed, the meeting was adjourned, and at an adjourned 
 meeting the matter of the rate was completed ; but the notice for the ad- 
 journed meeting contained no mention of the purpose for which the meet- 
 ing assembled. And the question which the House of Lords put to the 
 judges, in reference to the adjourned meeting, was: " Supposing the rate 
 to be otherwise valid, was it invalid by reason of the notice not stating 
 the purpose for which the [adjourned] meeting assembled ?" The judges 
 answered: "We are unanimously of opinion, that the rate was not rendered 
 invalid by reason of the alleged defect in the notice of the adjourned meet- 
 ing. It was sufficient to give notice [as required by the act] on the church 
 door of the purpose for which the first meeting was to be held, and, that 
 notice having been duly given, we think that the notice so given extended 
 to- all the adjourned meetings, such adjourned meetings being held for the 
 purpose of completing the unfinished business of the first meeting, and 
 being in continuation of that meeting." And such was the judgment of 
 the House of Lords. See, also. King v. Harris, 1 Barn. & Ad. 936. 
 
 Presumption as to regularity of adjournment when proceedings of the 
 adjourned meeting come before the court: Hudson Co. ». State, 4 Zabr. 
 (N. J.) 718; Insurance Oo. ■». Sortwell, 8 Allen, 317; State ». Jersey City, 1 
 Dutch. (N. J.) 309. 
 
 ' Wetmore ®. Story, 33 Barb. 414, 1856. 
 
 ' Wetmore v. Story, 33 Barb. 414, 1856. A subsequent council is bound 
 
Ch. X.] MODE OF PROCEEDING. 34] 
 
 § 227. The council may ascertain facts through the me 
 dium of a coTnmittee, and the members of the council may 
 where they know the facts of their personal knowledge, act 
 without further inquiry." As a public corporation may en- 
 tirely revoke the powers of a committee it has appointed, po 
 it may control the execution of those powers by increasing 
 the number of the committee. If the new members, either 
 by design or mistake, are excluded from acting, the pro- 
 ceedings of the others will be irregular.' 
 
 § 228. At any time before the rights of third persons 
 hare attached, a council or other corporate body may, if 
 consistent with its charter and rules of action, rescind pre- 
 vious votes and orders.' Thus a vote levying a tax, so long 
 
 by knowledge duly communicated to a previous council. Bank ». Seton, 1 
 Pet. (U. S.) 399, 1828. In Commonwealth v. Lancaster, 5 Watts, 153, 
 CHhaon, C. J., expressed his opinion to be, that notwithstanding a by-law or 
 rule requires certain corporate acts to be in a given form, and that altera 
 tions of such by-law or rule shall only be made by a vote of two-thirds of 
 the members, yet that a majority may repeal the by-law or rule, and may, 
 without such repeal, do valid acts, not in the prescribed form, by a majority 
 vote. 
 
 ' Bissell V. Jeflfersonville, 24 How. (U. S.) 287, 396, ^je?" Olifford, J. ; Com- 
 monwealth v. Pittsburg, 14 Pa. St. 177, 1850. As to power of council to ap- 
 point officers, and when it may delegate its powers to a committee: lb.; 
 Preble v. Portland, 45 Maine, 341 ; ante, sec. 60. 
 
 * Damon v. Granby, 3 Pick. 345, 1834. In this case it was further held, 
 where the agents of a town contracted with the plaintiff "to erect a meet- 
 ing-house on a place to be designated by a committee of the town," that 
 the town might disagree to the selection, and " designate the place for 
 themselves, at any time before the ground was prepared," on indemnifying 
 the plaintiff for any extra labor or expense which their fluctuating proceed- 
 ings may have occasioned. A notice to appear before a committee to whom 
 a matter, as for example, the laying out or altering of a street, has been 
 duly referred, is equivalent to a notice to appear before the city council, as, 
 for this purpose, the committee represent the council. Preble v. Portland, 
 45 Maine, 241, 1858. 
 
 ' Bigelow V. Hillman, 37 Maine, 58 ; Reiff v. Conner, 5 Eng. (Ark.) 341 ; 
 State V. Hoyt, 3 Oregon, 246 ; ante, sec. 41 ; Road Case, 17 Pa. St. 7 1, 75 ; 
 New Orleans ». St. Louis Church, 11 La. An. 344. Reconsideration at sub- 
 sequent meeting. Locke «. Rochester, 5 Lansing (N. Y.) 11, 1871; Sauk d. 
 Philadelphia, 1 Pa. Leg. Gaz. Rep. 359." The right of reconsidering lost 
 measures [at the same meeting, or pursuant to its rules] inheres in every 
 body possessing legislative powers." Per Whelpley, C. J., Jersey City o. 
 
342 MUNICIPAL CORPORATIONS. [Ch. X. 
 
 as it rests in mere resolution, and has not been acted upon, 
 may be reconsidered, and, if rescinded, the collector cannot 
 legally proceed to collect the tax.' 
 
 § 229. A provision of a city charter, that the ayes and 
 nays shall he called and published whenever the vote of 
 the common council should be taken on any proposed im- 
 provement involving a tax or assessment upon the citizens, 
 was considered, by two of the three%iembers of the Supreme 
 Court of New York, notwithstanding the use of the word 
 "«AaZZ," to be directory merely ; "the essential requisite 
 being the determination of the corporation, and not the 
 form or manner of expressing that determination."" But 
 an opposite view has elsewhere, as we think properly, been 
 taken of similar provisions, the court regarding the require- 
 ment that votes shJall, in such cases, be entered at large on 
 the. minutes, as intended to accomplish an important 
 public purpose, and therefore consider the requirement as 
 
 State, 1 Vroom (N. J.) 521, 539, 1863; Red ®. Augusta, 25 Ga. 386. "All 
 deliberative assemblies, during their session, have a right to do and undo, 
 consider and reconsider, as often as they think proper, and it is the reivM 
 only which is done." Per KirhpatrioTc, 0. J., in State ». Foster, 3 Halst. 
 (N. J.) 101, 107, 1838. See, also, State v. Jersey City, 3 Dutch. 536. 
 While public money is in the possession of the proper officer, the proper 
 authorities have entire control over it, and they may, so far as the officer 
 holding it is concerned, rescind a prior order (not yet complied with) to 
 pay money to an individual. Tucker v. Justices, 18 Ire. (N. Car.) Law, 
 434; Bey v. Lee, 4 Jones (N. Car.), Law, 238. A resolution is not invalid 
 because passed upon a reconsideration of a negative vote moved by one 
 who voted originally with the minonty. Locke v. Rochester, 5 Lansing 
 (N. Y.) 11, 1871. But in Sauk «. Philadelphia, 8 Phila. Rep. (l)y Wallace) 
 117, a nisi prius decision of the Supreme Court, it was held that the city 
 councils having once voted to sustain the mayor's veto of an ordinance passed 
 by them^ could not reconsider this vote, nor take any further action on the 
 measure. 6 Am. Law Rev. 730. 
 
 ' Stoddard v. Gilman, 33 Vt. 568; Pond v. Negus, 3 Mass. 230. 
 
 ' Striker v. Kelly, 7 Hill (N. Y.) 9, 34, 39, 1844, Sronaon, J., dissenting; 
 S. C. in Error, 3 Denio, 333; see McCorraick «. Bay City, 33 Mich. 457, 
 1871 ; Indianola v. Jones, 29 Iowa, 383 ; In re Mount Morris Square, 3 Hill, 
 20; Elmendorf v. Mayor, «&c. of N. Y., 35 Wend. 693. In Morrison «. Law- 
 rence, 98 Mass. 316, the grant of an important special power was construed 
 to require, as a condition to its exercise, the taking of the ayes and nays, 
 8jad a record of the-vote.. The decision or determination of a question by 
 
tm X.] MODE OF PEOOEEDING. 343 
 
 mandatory and its observance essential to valid corporate 
 action.' 
 
 § 230. Acts done when less than a legal quorum is 
 present, or which were not concurred in by the rectnisite 
 number, are void.' This is a fudamental rule in the law of 
 corporations ; but whether, in favor of the bolder of 
 negotiable securities issued, or purporting to be issued, 
 under authority conferred by the legislature, the corpora- 
 tion might not, in some C3,ses, be estopped to show that a 
 quorum was not present or that the requisite number did 
 not concur in the act, is a question which remains, perhaps, 
 to be settled.' It is clear that members of a council cannot 
 properly act in questions upon which their own pecuniary 
 interest is directly and specially involved. Butit has been 
 held in Michigan that proceedings on the part of a mu- 
 nicipal corporation ordering a paving impifovement are not 
 rendered invalid on the ground that two of the aldermen 
 who formed part of the quorum of the common councU, 
 which ordered the improvement, and without whose presence 
 there would have been no quorum, were petitioners for the 
 improvement and owners of property liable to assessment 
 
 a town meeting or common council should be, and probably must be, by a 
 formal vote or resolvMon. People ». Adams, 9 Wend. 333, 1833; Denning ». 
 Roome, 6 "Wend. 651, 1831. 
 
 ' Steckert c. East Saginaw, 32 Mich. 104, 1870, -where the purpose of the 
 requirement is well expounded; Spanglers. Jacoby, 14 HI. 397; Supervisors, 
 &c. ®. People, 35 111. 397; Morrison ®. Lawrence, mupra ; McCormick v. 
 Bay City, 33 Mich. 457, 1871 ; Delphi v. Evans, 36 Ind. 90, 1871. Accord- 
 ingly a profvision of statute that no ordinance for the improvement of a 
 street should be adopted, except upon the report and recommendation of 
 the city board of improvements, and requiring that such report be recorded 
 in its proceedings, is mandatory, and the report and recommendation were 
 held jurisdictional and not provable by parol evidence. Reynolds d 
 Sohweinefus, 1 Sup. Court Cin. (O.) Rep. 113. 
 
 ' LogansportB. Legg, 30 Ind. 315, 1863; Ferguson «. Chittenden Co., 1 
 Eng. (Ai-k.) 479. 1846; Price t. Railroad Company, 13 Ind. 58, 1859; Mo- 
 Cracken v. San Francisco, 16 Cal. 591 ; Piemental v. San Francisco, 31 CaL 
 351 ; State s. Wilkesville, 30 Ohio St. 388. Number present and acting, 
 how proved. 13 Ind. 58, supra. Presence of quorum, when presumed. 
 Insurance Company v, Sortwell, 8 Allen, 317. 
 
 ' See cmte, sec. 55 ; post, chapter on Contracts. Construction of charter 
 provision requiring unanimity : post, sec. 347. , 
 
344 MUOTOIPAL CORPORATIONS. [Ch. X 
 
 therefor. It migM be otherwise, the court concede, if the 
 common council acted as commissioners of apportionment 
 in making the assessment upon the property that was to 
 bear the burden, or on the confirmation of a report in which 
 the interest of these aldermen was directly involved.' 
 
 ' Steckert v. East Saginaw, 33 Mich. 104, 1870, where the reasons for 
 the distinctions taken are clearly stated by Coohy, 3. 
 
 Sight of corporation, to contract mtJi its officers or eoundlmen. Ante, sec. 
 331, note 3, and cases cited. Post, sec. 371,, note. 
 
Oh. XI.] CORPORATE RECORDS. 345 
 
 CHAPTER XI. 
 
 COEPOEATE ReCOEDS AND DOOUMEITTS. 
 
 § 331. Corporations have the incidenlal power, if the 
 regular clerk is temporarily absent, to appoint a private 
 person a clerTc pro tern, for the purpose of making the 
 entries of vrhat is transacted at the corporate meeting. His 
 entries, made by the direction of the corporate authorities, 
 or entries made by the regular clerk from memoranda 
 furnished by the clerk pro tern., are competent evidence of 
 the proceedings of the meeting.* 
 
 § 232. The clerk or officer of a New England town' wTio 
 Jms made an erroneous record, may, while in office (but 
 not afterwards), or after a re-election to the same office, 
 amend the same according to the truth, being liable, like a 
 sheriff who amends his return, for any abuse of the right, 
 as where he makes a fraudulent or untruthful amendment, 
 the town is not concluded or bound by an erroneous record, 
 whether made by design or accident, unless when it would, 
 on general principles, be estopped.' 
 
 ■ Hutchinson «. Pratt, 11 Vt. 403, 1839. See also Rex v. Mothersell, 1 
 Stra. 93, also referred to infra. SuflBciency of memoranda : Louisville ». 
 McKegney, 8 Bush (Ky.) 651, 1870. Faiure of clerk to take oath of office 
 does not invalidate his record. Stebbins ». Merrit, 10 Cush. 37. Ante, 
 sec. 153. /Signature of chairman to minutes afiSxed at a day subsequent to 
 the meeting, held sufficient, under a statute requiring the minutes of cor- 
 porate meetings to be signed by the chairman. Miles «. Bough, 3 Gale & 
 D. 119; Inglis «. Railway Company, 16 Eng. Law and Eq. 55. See, also, 
 chapters relating to Corporate Meetings and Corporate Officers. Post, sec. 
 265. 
 
 ' Ante, sees. 13, 13, as to New England towns, 
 
 ' Cass V. Bellows, 11 Post (N. H.) 501, 1855; Harris «. School District, 8 
 Post. 58, 66, 1853; Gibson®. Bailey, 9 N. H. 168; Whittier d. Vamey, 10 N. 
 H, 391; Wells®. Battelle, 11 Mass. 477; Low ®. Pettingill, 13 N. H. 340; 
 Pierce v. Richardson, 87 N. H. 306 ; Scammon v, Scammon, 8 Post. 429 ; 
 President, &c. v. O'MalJey, 18 111. 407, 1857; Mott ®. Reynolds, 37 Vt. (1 
 Wms.) 206, 1855 ; Boston Turnpike Co. v. Fomfret, 30 Oo-- 590, 1850; coro 
 
348 MUNICIPAL C0BP0RATI0N8. [Ch. XL 
 
 § 233. In a case in Vernont, tjie clerk of the town, 
 pending a trial, a/mended the record by adding his signa- 
 ture as clerk to the record of the warning for the meet- 
 pare Covington o. Ludlow, 1 Met: (Ky.) 295, below cited. The necessity 
 and reasonableness of the doctrine, stated in the text, are thus expounded 
 by Parher, C. J., in Wells ». Battelle, 11 Mass. 477, 481, 1814: ""We have had 
 frequent occasion to perceive the great irregularity which prevails in the 
 records of our towns and other municipal corporations ; and the courts tjave 
 always been desirous to uphold these proceedings, where no fraud or willful 
 error was discoverable. Too much strictness on subjects of this nature 
 would throw the whole body politic into confusion [Kellar ®. Savage, 17 
 Maine, 444]. For it cannot be expected that; in all corporations, persons 
 will be every year selected, who are capable of performing their duty with 
 the exactness which would be useful or convenient." "The first entry 
 made by the clerk here [that an officer was sworn into office] was certainly 
 defective, but the defect is properly cured by the subsequent entry of the 
 existing clerk, he being the same person that officiated at the time of the 
 first entry. He will be sufficiently watched by interested parties, to render 
 a deviation from truth neither safe nor easy." The doctrine of the case in 
 11 Mass. 477, was followed and applied in Chamberlain v. Dover, 13 Maine, 
 466, 1836, where it was further held, that the municipal body was not 
 bound by an erroneous record of a clerk, even though the plaintiflFs, con- 
 fiding in its correctness, had made a building contract with the " contract- 
 ing and building committee " named in the record. The meeting, in this 
 case, which attempted to confer this power upon the committee, was not a 
 legal one, because not held at the time and place appointed ; and it was 
 considered by the court that the plaintiflfs' remedy was against the commit- 
 tee and not against the town, if the former acted without authority. See, 
 further, as to correcting and amending records, Williams s. School District, 
 31 Pick. 75, holding that where two different, but not contradictory, records 
 were made up by the clerk from memoranda taken at the meeting that 
 both were originals and competent testimony. 
 
 Clerk cannot a/mend records after he is out of office. School District v. 
 Atherton, 13 Met. 105, 1846; HartweU «. Littleton, 18 Pick. 239, 383, 18b3; 
 Contra, to the effect that he may amend, though out of office at the time, 
 see Gibson v. Bailey, 9 N. H. 168, 1838. But may, while he is in office. 
 Bishop r>. Cone, 3 N. H. 513, 1831 ; Hoag v. Durfey, 1 Aiken (Vt.) 286, 
 1836 ; Chamberlaia v. Dover, 13 Maine, 466, 1836. That successor cannot 
 make the amendment. State v. Williams, 35 Maine, 561, 555 ; 39 lb. 533 
 Taylor v. Henry, 3 Pick. 397. But the corporation might, in proper cases, 
 authorize the successor to supply the omitted, or correct the erroneous, en- 
 try. Hutchinson v. Pratt, 11 Vt. 403, 419. 
 
 In New Hwmpshire it is the practice to allow these amendments only upon 
 the order of the Supreme Court or Court of Common Pleas by the officer by 
 whom they were made, even after he has ceased to hold the office. A clear 
 case must be made out. The court do not permit any erasures or interlin 
 eations of the original record, but require the amendment to be written 
 
Ch. XI.] COEPORATE RECORDS. 347 
 
 ing in question. His right to do so though he had mean- 
 time been out of office, but was again restored^ was sanc- 
 tioned bj the Supreme Court, Medfleld, C. J., remark- 
 ing : " We think, in general, it must be regarded a? 
 the right of the clerk of a town or other municipal cor- 
 poration, while having the custody of the records, to make 
 any record according to the facts. His having been out 
 of office, and restored again, could not deprive him of 
 that right. But even an officer could not alter or amend 
 a record upon the testimony of third persons ordinarily, 
 and ought not to do it upon his own recollection unless 
 in very obvious cases of omission or error, of which 
 the present might fairly be regarded as one, probably. 
 Such amendments should ordinarily be made by the original 
 documents or minutes.'" The right of the cleric ex parte to 
 amend the records of the proceedings of town corporations 
 was very thoroughly considered in a case in Connecticut." 
 The statute of that state requires town clerks to keep the 
 record books of their respective towns, and to enter truly 
 all the votes and proceedings of the town. The town clerk 
 made an entry showing that at a town meeting held in 1843, 
 the town assumed to the plaintiflf a liability to commence 
 January 1, 1844. If the time thus stated was the 1]rue time, 
 the plaintiff had a cause of action against the town. In 
 1849, the clerk, not upon his own personal knowledge, nor 
 upon any written memorandum, but on the information of 
 others (with the correctness of which, however, he was per- 
 fectly satisfied), amended the record so as to show that the 
 liability of the town was not, by the vote, to commence un- 
 til April 1, 1844. If this was the true time, the plaintiff had 
 no cause of action. The majority of the court (three judges 
 against two) held that the clerk, still continuing in office, 
 
 upon a separate piece of paper, signed by the proper officers, and with it a 
 copy of the order allowing the amendment ; and this paper is annexed to 
 the original record. Pierce ». Richardson, 37 N. H. 306, Zll, per Bell, 3. 
 
 > Mott V. Reynolds, 27 Vt. (1 Wms.) 206, 208, 1855. Amendments in 
 open court of town record by clerk of the town pending trial, to which the 
 clerk is a party, and to meet a particular decision of the court, disregarded. 
 Hadley v. Chamberlain, 11 Vt. 618, 1839. Commented on and distinguished. 
 Mott «. Reynolds, 27 Vt. (1 Wms.) 206, 1855. 
 
 ' Boston Turnpike Co. ®. Pomfret, 20 Conn. 590, 1850. 
 
348 MUNICIPAL CORPORATIONS. [Ch. XI. 
 
 was competent to amend the record — ^that this power is de- 
 rived solely from his official character, and does not depend 
 on the permission of the court in which the record is 
 offered as an instrument of evidence, nor on inquiry into 
 the truth of it as originally made, or as amended, and that 
 such a record is, in such an action, conclusive evidence of 
 its own truth. The dissenting judges, without denying the 
 power of amendment in all cases, were of opinion that in 
 view of the lapse of time, the absence of written memoranda, 
 or personal recollection by the clerk, the clerk had no au- 
 thority to make the amendment, and that the correct course 
 would have been to have made application to the proper 
 court by legal process, e. g., maTidamus, to correct the mis- 
 take in the record, if one existed, and thus give the opposite 
 interested party an opportunity to show that the record was 
 already right. It would seem, under the special circum- 
 stances that the dissenting view was the better one. 
 
 § 234. Where the clerk makes up the record of the pro- 
 ceedings of the council, and it is read and approved at the 
 same or at a subsequent meeting, the author doubts his au- 
 thority, on his own motion, to amend it afterwards without 
 the direction of the council. The council, unless private 
 rights have attached, may, doubtless, order the record of its 
 own proceedings, even after it has once been approved, to 
 be corrected according to the facts. The Court of Appeals 
 of Kentucky, without determining the extent of the power 
 of the same council at a subsequent meeting, to correct 
 errors and omissions in the journal entry of proceedings at 
 a previous meeting, decided that this could not be done by 
 an entirely new board in respect to the official action of 
 iYiiia: predecessors ; and it was accordingly held, that where 
 the records, as kept, showed only that in August, 1854, an 
 ordinance was reported, a new council could not, in 1856, 
 add to the records words showing that the ordinance had 
 passed, nor could the fact of its passage be shown by 
 extrinsic evidence.' 
 
 > Covington v. Ludlow, 1 Met. (Ky.) 395, 1858 ; see, also, Lexington v. 
 Headley, 5 Bush (Ky.) 508, 1869; Graham n. Carondelet, 33 Mo. 263; State 
 V. Jersey City. 1 Vroom (N. J.) 93,' 148, and chapters on Corporate Meetings 
 and ordinances, post, sec. 347 ; ante, sec. 238. 
 
Ch. XI.] CORPOKATE RECORDS. 349 
 
 § 235. Parol evidence may, if necessary, be admitted to 
 apply a resolution or recorded vote of a town to its proper 
 subject matter,' but not, in general, to explain, enlarge, or 
 contradict its terms or meaning, in respect, to matters (as, 
 for example, laying out a highway or street) regularly 
 within the jurisdiction of the town or its officers, and where 
 the entry of record is made in pursuance o.f law." Where 
 the record of a meeting states that "the inhabitants met 
 and adjourned the meeting," parol evidence may be ad- 
 mitted to show when and where the meeting was held, how 
 many were present, and how many afterwards came, and, 
 finding no meeting, went home.' 
 
 § 236. Parol evidence in a collateral action cannot be 
 
 ' Baker «. Windham, 13 Maine (1 Shep.) 74, 1836. In this case the town 
 of Windham entered upon its records the following: " Voted to indemnify 
 Benj. Baker, in his costs in the action against A. Small, which have or may 
 arise in the same on account of Qra/y line." In an action by Baker against 
 the town to recover costs of a suit which he had brought against Small, 
 parol evidence was adjudged to have been rightly admitted to show that 
 Baker brought the action in his name against Small, on account of the Chray 
 line, at the request of the selectmen of Windham, for the purpose of 
 settUng a disputed line between that and the adjoining town, with the ex- 
 press agreement that the town should pay all costs, and to show that these 
 facts were before the town when the vote was passed, and also to show that 
 the suit so instituted was conducted under the advice and direction of the 
 authorities of the town. 
 
 ^ Manning's. Fifth Parish, &c. 6 Pick. 16 ; Crommett v. Pearson, 18 
 Maine, 344 ; Covington®. Ludlow, 1 Met. (Ky.) 395; Cabot v. Britt, 36 Vt. 
 349; Lexington v. Headley, 5 Bush (Ky.) 508, 1889. Post, sec. 347; ante, 
 sec. 339. 
 
 = Chamberlain v. Dover, 13 Maine, 466, 1836. But parol evidence of an 
 adjournment to another day cannot be given so as to validate acts done on 
 the day adjourned to. Taylor v. Henry, 2 Pick. 397. Where a statute 
 requiring a record to be made of the persons swora into office is directory, 
 if the record is not made, the fact may be shown by parol or other com- 
 petent evidence. Kellar v. Savage, 17 Maine (5 Shep.) 444, 1840. In the 
 M. E. Corporation «. Herrick, 35 Maine, 354, it was held, that to establish 
 a resulting trust in the corporation [with respect to lands], it could not 
 prove the authority of the committees to act for it by parol evidence ; the 
 authority should appear, and could only be shown by its records. Further 
 as to what facts may be shown by parol : Bath v. County Commissioners, 
 36 Maine, 74; 35 lb. 373; Smith ®. County Commissioners, 43 Maine, 395. 
 Ante, sec. 206, and note. Post, sec. 347. 
 
300 MUNICIPAL CORPORATIONS. [Ch. XI. 
 
 received to contradict the records of a public corporation, 
 required by law to be kept in writing, or to show a mistake 
 in the matters as therein recorded. Thus, if the records of 
 a school district show that the district voted to authorize 
 their clerk to call and warn " their annual meetings," parol 
 evidence in an action by the district is not admissible to 
 prove that the real vote of the district was to authorize the 
 clerk to call and warn all district meetings.' So, where the 
 record pf a town stated the warning to have been on the 
 17th, and the meeting to have been held on the 19th of 
 January, parol evidence cannot be admitted to show that, 
 by mistake, the clerk inserted the "19th" instead of the 
 "29th." The remedy is, to have him correct the record, 
 if in office, according to the truth." 
 
 § 237. But a distinction has sometimes been drawn be- 
 tween evidence to contradict facts stated on the record and 
 evidence to show facts omitted to be stated upon the 
 record. Parol evidence of the latter kind is receivable un- 
 less the law expressly and imperatively requires all matters 
 to appear of record, and makes the record the only evi- 
 dence.' Thus, in a weU-considered case in the Supreme 
 
 ' School District ®. Atherton, 13 Met. 105, 1846; Morrison o. Lauienoe, 
 98 Mass. 219 ; Mayhew v. Gayhead, 13 Allen, 129. 
 
 2 Durfey v. Hoag, 1 Aiken (Vt.) 386, 1836. So in Connecticut, if a town 
 corporation makes an erroneous record of its proceedings, this cannot he 
 contradicted in a collateral action. In such an action the record is conclu- 
 sive. If false, and the corporation will not correct the record, a party in- 
 terested may, by mandamus, comf A it to make the correction. Boston 
 Turnpike Co. v. Pomfret, 20 Conn. 500, 1850. Upon this point, all the 
 judges, though different on other points, seemed to agree. Post, chap. 
 XIX. Supra, sec. 233. 
 
 Purchasers of such paper [bonds issued by cities for stock in railroads] 
 look at the form of the paper, the law which authorized it to be issued, and 
 the recorded proceedings on which it is baaed. Therefore, as against pur- 
 chasers, the record cannot be contradicted by parol evidence. Per Clifford, 
 J., in Bissell «. Jeffersonville (action on municipal bonds), 34 How. (U. S.) 
 387, 398. See chapter on Contracts, post, as to the rights of holders of such 
 securities. 
 
 » Moor V. Neufleld, 4 Greenl. 44, 1836. " The only legal mode of proving 
 fctaaon record is by the record itself, or by an attested copy of it." Ih. per 
 Mellen, C. J. ; School District ». Atherton, 12 Met. 105, 113, 1847, per Dewey, 
 J. ; Langsdale v. Bonton, 18 Ind. 467; Indianapolis v. Imberry, 17 Ind. 175, 
 
Ch. XI.] COEPOKATE RECORDS. 351 
 
 Court of the United States,' it was held, that the acts of a 
 oorporation might be proved otherwise than by its records 
 or some written document, even although it was its duty 
 
 179; Delphi*. Evans (referring to previous oases), 36 Ind. 90, 1871; Bij?e- 
 low «. Perth Amboy, 1 Dutch. (N. J.) 397, 1855; Gearhart v. Dixon, 1 Pa. 
 St. 324, 1845. Where the law or charter requires the clerk to keep a, journal 
 of all of the acts and proceedings of the city council, that, or a copy, is the 
 proper evidence of the official doings of the body. City of Lowell ®. 
 Wheelock, 11 Gush. 391, 1853; Harris ». Whitcomb, 4 Gray, 438; Morrison 
 t). Lawrence, 98 Mass. 219 ; Louisville v. McKegney, 7 Bush (Ky) 651, 1870. 
 Post, sec. 347. 
 
 ' Bank, &c. v. Dandridge, 12 Wheat. 64. Delivering the opinion of the 
 court, Mr. Justice Stori/, a/rgu-endo, makes these important observations: 
 " Would the omission of the corporation to record its own doings have 
 prejudiced the rights of the party relying upon the good faith of an actual 
 vote of the corporation ? If such omission would not be fatal to the plain- 
 tiff in suits against the corporation (as, in our opinion, it would not be), it 
 establishes the fact, that acts of the corporation, not recorded, may be 
 established by parol proofs, and, of course, by presumptive proofs. In 
 reason and justice, there does not seem any solid ground why a corpora- 
 tion may not, in case of the omission of its officers to preserve a written 
 record, give such proofs to support its rights as would be admissible in 
 suits against it to support adverse rights. The true question in such case 
 would seem to be, not which party was plaintiff or defendant, but whether 
 the evidence was the best the nature of the case admitted of, and left 
 nothing behind in the possession or control of the party higher than sec- 
 ondary evidence." "We do not admit, as a general proposition, that the 
 acts of a corporation are invalid merely from an omission to have them 
 reduced to writing, unless the statute creating it makes such writing indis- 
 pensable as evidence, or to gives them an obligatory force. If the statute 
 imposes such restriction, it must be obeyed." (13 Wheat. 69, 74.) The 
 same principle was applied, in the case of the United States v. Fillebrown, 
 7 Pet. 38, to the acts of boards of public agents or officers, and it was in 
 that case accordingly held, that the board of commissioners of the navy 
 hospital fund, not being required by law to reduce its proceedings to writ- 
 ing, in order to make them binding, oral evidence of such proceedings (no 
 record having been made) was competent. Langsdale v. Bonton, 13 Ind. 
 467. 
 
 " It appears to us, that in the absence of all record, it might be competent 
 for the defendants (trustees and collector of the corporation justifying 
 under its proceedings) to show, by parol, the proceedings of the meeting. 
 Where there is a record, it cannot be added to or varied by parol. Taylor 
 «. Henry, 3 Pick. 403. But where there is an omission to make records, 
 the rights of other persons acting under or upon the faith of a vote not 
 recorded, ought not to be prejudiced. And it would seem that the right in 
 such a case is reciprocal in the corporation and in these who claim ad- 
 
352 MUNICIPAL CORPORATIONS. [Oh. XL 
 
 "to keep a fair and regular record of its proceedings," 
 The statute did not prescribe that nothing but a recorded 
 vote or written document should bind the corporation or be 
 received as evidence. Such written evidence was not 
 deemed indispensable "unless positively required. The 
 direction to keep a record was regarded as directory, 
 
 § 238. Where the records of a municipal corporation 
 have been so carelessly and imperfectly kept as not to show 
 the adoption of a resolution or other acts of the city council, 
 and there is no written evidence in existence, parol testi- 
 mony may be admitted ; e. g., to show that certain work 
 was done by authority of the city, by proving the 
 passage of a resolution of the councU, the appointment of a 
 committee to make the expenditure, their report after the 
 work was done, and its adoption by the council,' 
 
 versely to it." Tw Williams, C. J., Hutchinson v. Pratt, 11 Vt. 402, 421. 
 But compare Stevens v. Eden, &c. Society, 12 Vt. 688; 16 lb. 439; 17 J5. 
 837. 
 
 The rights of creditors, or of third persons, cannot be prejudiced, by the 
 neglect at the council to keep proper minutes; against the corporation 
 ■what the council in fact did, may be shown by evidence aliunde the record 
 kept by it. Bigelow ». Perth Amboy, 1 Dutch. (N. J.) 297, 1855; San An- 
 tonio «. Lewis, 9 Texas, 69, 1853. 
 
 Proof of the action and orders of a municipal lom-d of health, see chapter 
 on Ordinances, post, sec. 305, note. ' 
 
 ' Ross ». Madison, 1 Ind. (Carter) 281, 1848; Langsdale ®. Bonton, 12 
 Ind. 467 ; Indianapolis v. Imberry, 17 Ind. 175, 179 ; Delphi «. Evans (re- 
 viewing previous cases), 86 Ind. 90, 1871. In the same state, however, 
 county commissioners and township trustees are required by law to keep a 
 true record of their proceedings, and it is held that they " can only speak 
 by their record " when legally assembled. County Commissioners ». Chit- 
 V ood, 8 Ind. 504, 607, 1851 ; Trustees v. Osborne, 9 Ind. 458. So, in Maine, 
 " school districts are required by law to keep an account of their proceedings 
 by a sworn clsrk, and such proceedings can be proved only by the record 
 or a copy thereof duly authenticated." Jordan ». School District, 88 Maine , 
 164, 1854. The records of public or quasi corporations are not, in Ohio, con-, 
 ffldered to be " of that absolute verity that any person shaU be estopped to 
 show the truth in consequence of any matter which they contain " or omit 
 to contain; and it was accordingly adjudged that the fact whether an offi- 
 cial bond was received or refused and rejected may be shown hj pa/rol evi- 
 dence, on which point the record was silent. Westerhaven ®. Olive, 6 Ohio, 
 136, 1831, as to records of township trustees. See Green «. State, 8 Ohio, 
 810, 1838, in which it was queried, whether the county commissioners could 
 
Ch. XI.] COEPOBATE RECORDS. 353 
 
 § 239. Mandamus is an appropriate remedy for the 
 duly elected and authorized officer of a public or municipal 
 corporation to compel the delixiery to him by Ms predecessor, 
 or by au usurper, of the hooks, papers, records, and seal 
 pertaining to the office.' And such a corporation may 
 maintain replevin in its name for the possession of its 
 records ; and this action is maintainable against a stranger 
 
 appoint an agent by parol or only by record ? In Iowa, it has been held 
 that where no record entry is made such an appointment may be shown by 
 parol testimony and that the agent acted accoidingly. Poweshiek County 
 e. Ross, 9 Iowa, 511; Atheam ». District, 33 lova, 105, 1871; and see aco. 
 Ross V. Madison, 1 Carter (Ind.), 381 ; compare Meeker v. Van Rensselaer, 
 15 Wend. 397. Where recording is not required by charter or law, resolu- 
 tions of a council are admissible in evidence, although not recorded. Dar- 
 lington v. Commonwealth, 41 Pa. St. 68. See ^o«*, sec. 347; Louisville ». 
 McKlegney, 7 Bush. (Ky.) 651, construing charter as to requisites of the 
 journal required to be kept by each board of the council. 
 
 • Proprietors of Church v. Slack, 7 Cush. 336, 339, 1851 ; Common- 
 wealth ®. Atheam, 3 Mass. 385 ; Rex «. Wildman, 3 Strange, 879 ; King v. 
 Ingram, 1 W. Bl. 50; King. v. Round, 4 Ad.&El. 139; Cranford v. Powell, 
 2 Burr. 1013; Rex®. Clapham, 1 Wils. 305 ; 3 Bl. Com. 310; Kimball «. 
 Lamprey, 19 N. H. 315, 1848, where the above authorities are cited and 
 digested by Gilchrist, C. J. ; Taylor v. Henry, 3 Pick. 397 ; Parish, &c. ■». 
 Steams, 31 Pick. 148, 156 ; Bates v. Plymouth, 14 Gray, 163 ; Perkins «. 
 Weston, 3 Cush. 549. 
 
 The following points have been ruled in respect to corporations in Engr 
 land : If the custody of their documents belong to one of their officers in 
 virtue of his office, the corporation cannot compel him to deliver them up, 
 but may require that he submit them to their inspection whenever they 
 think proper. Rex v. Ipswich, 3 Ld. Raym. 1338 ; Rex v. Pigram, 3 Burr, 
 767 ; Willc. 345 ; GlQver, 360. Sometimes the custody of these documents 
 is entrusted to the town clerk or other officer, merely as the servant of the 
 corporation, in which case they may appoint another to receive them,, and 
 if they are not delivered over after demand, the corporation may obtain 
 possession of them by an action of detinue or the court will compel a de- 
 livery by maridamus. It. If the predecessor in office, or, he being dead, 
 his personal representative, or another person having possession of cor- 
 porate documents under him, refuse to deliver them over to the successer 
 or the corporation, on a proper application, the court will grant a mwndamiM 
 to compel him to do so. Rex v. Nottingham, 1 Sid. 31 ; Anonymous, 1 
 Barnard, 402; Willc. 345; Glover, 360. This writ is said, indeed, to lie 
 to any person, whether stranger or corporator, who happens to be in pos. 
 session of the books of a corporation, and who refuses to deliver them up. 
 Proprietors of Church v. Slack, 7 Cush. 336, 231, 1851, per Vhteheir, J.;. 
 EexB. Ingram, 1 W. Bl. 50; Willc. 246; Glover, 331. PM«,.chap. XX. 
 33 
 
ijiSi MUNICIPAL CORPORATIONS. [Ch. XL 
 
 or any officer or person not legally entitled to the custody 
 Sif the records.'. 
 
 § 240. ' Concerning the right to inspect corporate docu- 
 ments and papers, the following points have been ruled as 
 fcitated by Mr. Willcock : Every corporator has a right to 
 inspect all the records, books, and other documents of the 
 corporation, upon all proper occasions ; and If, upon appli- 
 cation for that purpose, the officer who has the custody re- 
 fuse to show them, the court will grant a manda/mus to en- 
 force his right." One who has 2b prima facie title to a cor- 
 porate office has a right to inspect such documents as relate 
 to that title, and may obtain a :mandamus for this purpose 
 before any suit has been instituted.' A corporator has a 
 right to inspect these documents, to obtain information as to 
 his rights, whether in dispute with a stranger or the corpora- 
 tion itself, or any of its members.* When the corporator's 
 application to inspect is founded on his general right, he 
 has a mandamus, but when it is founded on a suit pending, 
 
 ' Parish, &c. v. Steams, 31 Pick. 148 ; School District v. Lord, 44 Maine, 
 374 — ^replevin for records of district. The court, holding that repl&dn 
 would lie, say: "The action is, therefore, rightfully brought, and maybe 
 maintained if the defendant was not the legal clerk of the district." Per 
 Rice, J., 44 Maine, 374, 384. The right or title of an office cannot be de- 
 termined by a civil action between the respective claimants, as by an action 
 of replevin for the official books and papers, and until the issue as to the 
 right is determined by quo wmrtmto or other proper proceeding, no suit in 
 replevin can be maintained by one claimant against the other for the posses- 
 sion of the appurtenances' of the office. Desmond «. McCarty, 17 Iowa, 
 535. In La Grange ®. State Treasurer, 34 Mich. 466, the court decided that 
 replevin does not lie for papers filed in a public office, Post, sec. 684. 
 
 ' Rex v. Shelley, 3 Term R. 143; Rex c. Babb, II. 580; Harrison «.' 
 Williams, 3 Bam. & Cress. 163 ; Rogers d. Jones, 5 D. & R. 484 ; Willo. 
 347 ; Glover, 363. Any person sufficiently interested is entitled to inspect 
 entries in books of public corporations relating to public matters of the 
 corporation, where the evidence is required in a civil action. Grant Corp. 
 811. See, also. People «. Comell, 47 Barb. 339, in which it is held, that a 
 corporator without any special or private interest has the right to inspect 
 and take copies of all public documents and records, under reasonable re- 
 strictions to secure the safety of the originals. 
 
 ' Rex u. Newcastle, 3 Stra. 1333; Rex ®. Lucas, 10 East, 336; Rex«. 
 .Puraell, 1 Wils. 343. 'Post, chap. XX. 
 
 * Edwards v. Vesey, Caa. Temp. Hardw. 138; Rex d. Babb, 3 Term B. 
 180 ; Re* v. Bridgman, 3 Stra. 1303 ; Grant on Corp. 313. 
 
Oh. XI.] CORPOBATE RECORDS. 355 
 
 he obtains a rule.' In an action by one corporation against 
 another, rules were made absolute for each corporation to 
 inspect so much of the books and records as related to the 
 subject in dispute.' The motion for the rule to inspect and 
 to have copies should be supported by affidavits showing 
 the foundation of the claim, the application, the proper 
 officer and his refusal. The rule will require the expense 
 attending obedience to be borne by the applicant, and will, 
 in proper cases, allow the officer a remuneration for his 
 trouble. If the officer disobey, without sufficient reason, 
 the rule to allow an inspection or to give copy of, or to pro- 
 duce corporate documents, the court will grant an attach- 
 ment against him.' 
 
 § 341. A public or municipal corporation, required by 
 law to keep a record of its public, or official, proceedings, 
 may itself use such records as evidence in suits to which it 
 is a party ; but the records must first be properly authenti- 
 cated.* Indeed, in actions generally, including actions 
 
 ' Eex c. Shelley, 3 Term R. 143. 
 
 ' Mayor of London ». Lynn Regis, 1 H. Bl. 206 ; Mayor, &c. of Southamp- 
 ton V. Graves, 8 Term E. 593. 
 
 ' Willc. 353, 353 ; Grant, 311 et aeq. See, also, People «. Mott, 1 How. 
 Pr. R. 347 ; Cockbum v. Bank, 13 La. An. 389 ; People a. "Walker, 9 Mich. 
 338. 
 
 * School District v. Blakeslee, 13 Conn. 237, 1839; Denning v. Roome, 6 
 Wend. 651 ; Woods. Jefferson County Bank, 9 Cow. 305; State v. Van Win- 
 kle, 1 Dutch. (N. J.) 78 ; McFarlane v. Insurance Company, 4 Denio, 392 ; 
 Turnpike Company v. McKean, 10 Johns. 154. Denning ». Roome, above 
 cited, holds, that the original minutes or records of the corporation of a city 
 were competent evidence of corporate acts, without further proof of their 
 verity. Records of corporation held admissible, though not required by 
 law to be kept, and, where defective, explainable by parol evidence. Gear- 
 hart ».. Dixon, 1 Pa. St. 324, 1845; Adams ®. Mack, 3 IT. H. 493, 499,i?«r 
 Bicha/rdion, C. J. 
 
 The following points have been decided respecting English corporations: 
 Where charters or corporation books are to be given in evidence, being 
 records or instruments of a pvblic nature, they may themselves be produced ; 
 and examined copies of their contents may also be given in evidence. The 
 Court of King's Bench will not make a rule to produce the originals, unless 
 it be shown by affidavit that a new entry, rasure, or some other circumstance, 
 renders an inspection necessary. To g'ive books this public character, it 
 must appear, if they be questioned, that they have been publicly kept, and 
 that entries have been made by the proper officers; not but that entries 
 
356 MUNICIPAL CORPORATIONS. [Ch. XI. 
 
 against agents or officers of the corporation, as individuals, 
 the original minutes or records of the corporation are com- 
 petent evidence of the acts and proceedings of the corpora- 
 tion. Duly autJienticaied copies have often been received 
 in evidence, where the original document or proceeding was 
 of a public nature.' 
 
 made by other persons may be good, if the town clerk be sick or refuses to 
 attend, -which, however, must be proved, anS* the reason why they were not 
 made by the proper officer shown. Rex ». Mothersell, 1 Stra. 93 ; Brocas ». 
 Mayor, &c. of London, 1 Stra. 307; Rex ®. Gwyn, Mayor, &c., 1 Stra. 401; 
 Willc. '343; Glover, 258; Rex ». Smith, 1 Stra. 126; Grant, 318. Whoever 
 produces the book must establish its authority before he delivers it in, and 
 may be required to show where it has been kept, and how it came to his 
 possession. Rex «. Mothersell, 1 Stra. 93; Rex v. Thetford, 12 Vin. Abr. 90, 
 p. 16 ; Willc. 344 ; Glover, 358. A book containing minutes of some cor- 
 porate acts which occurred ten years ago, entirely written by the relator's 
 clerk, who was not an officer of the corporation, and appearing never to 
 have been kept among, or esteemed as, one of the corporate documents, or 
 even seen "before the present application for an information, is not admissible 
 as a corporate document. Rex v. Mothersell, 1 Stra. 93. Nor is the copy 
 of a letter made fifty years ago and found in the corporation chest, but the 
 original must be first accounted for, as though it had been found in the 
 . jjossession of a private person. Rex ®. Gwyn, 1 Stra. 401. Nor are entries 
 «)f a primate nature, in the public books of a corporation, evidence for them 
 iu support of a right which they claim, for this were allowing the party to 
 fabricate evidence for themselves. Rex v. Debenham, 2 B. & Ad. 187; 
 Marriage v. Lawrence, 3 B. & Ad. 144; Grant on Corp. 318, 319, and cases; 
 3 Phill. Ev. .123; Angell & Ames Corp. sec. 679 ; Willc. 344. 
 
 ' Denning v. Roome, 6 Wend. 651, 1831 ; citing Owings «. Speed, 5 
 Wheat. 424; Rex®. Mothersell, 1 Stra. 93; 12 Vin. Abr. 90, pi. 16. See, 
 also, People v. Adams, 9 Wend. 333 ; Wood v. Jefferson County Bank, 9 
 Cow. 194, 205 ; Angell & Ames on Corp. sec. 679 ; Turnpike Company v. 
 McKean, 10 Johns* 154. In Denning v. Roome, supra, the defendant was 
 sued in his ind/mdual capacity for removing, by order of the city council, a 
 certain fence erected by the plaintifif. The defendant (although it was 
 argued that, being the agent of the corporation, the latter should be con- 
 sidered as the forty and its own records as incompetent in its own favor to 
 justify its acts) was allowed to show by the records of the corporation that 
 the fence was on a portion of the public street. 
 
 The clerk of a city or town is, by law, the proper certifying officer to 
 authenticate copies of the votes and ordinances thereof. Such copies are 
 admissible in evidence without preliminary proof, as in ordinary instruments» 
 of the genuineness of the clerk's signature, but are, of course, only ^ma 
 faxie evidence, and they may be shown to be inaccurate, false, or forged. 
 Commonwealth b. Chase, 6 Cush. 348, 1850. Where the original document 
 is of a publie- nature, and would be evidence if produced, it is not necessary 
 
Ch. XI.] COEPOKATE EECOEDS. 35? 
 
 § 242. An admission by a corporation of a fact or of a 
 liability, duly and properly made, is, of course, evidence 
 against it. But a municipal corporation, by accepting, tbat 
 is, receiving/ the report of a committee of inquiry, does not 
 admit tbe truth of tbe facts stated therein ; and such a re- 
 port, though accepted by a vote of the corporation, is not 
 admissible in evidence against it.' In an action of assumpsit 
 
 to show the document itself, for It may be required at many places at the same 
 time ; for that reason an immediate sworn copy, made by the proper officer, 
 will be admitted. Rex «. Lord George Gordon, Doug. 593 ; 1 Phil. Bv. 
 405; Willc. 344; Glover, 259. Grant, 818, lays down the rule generally, 
 that sworn copies of public entries in books of public corporations are ad- 
 missible wherever the originals would be, and the corporation will not be 
 compelled to produce their books in court except for reasons shown. It has, 
 however, been held, that the by-laws of a corporation, in the absence of 
 special provision, must be proved by the production of the by-laws them 
 selves, as these are the primary evidence. Lumbard v. Aldrich, 8 N. H. 31 , 
 Moore v. Newfleld, 4 Greenl. 44 ; Hallowell Bank v. Hamlin, 14 Mass. 178. 
 So, of the votes of a corporation, the record is the best evidence. Haven v. 
 Asylum, 13 N. H. 533. See, also. Manning v. Parish, 6 Pick. 6; Taylor v. 
 Henry, 2 Pick. 403; Green v. Indianapolis, 35 Ind. 490. It may be re- 
 marked that there are statutes in various states under which certified copies 
 would be receivable in evidence instead of the originals. Licenses from a 
 city or town authorizing person? to pursue particular employments, &c., 
 need not be in writing. Boston v. Shaffer, 9 Pick. 415, 1830. 
 
 • Dudley «. Weston, t Met. 477, 1846 ; followed by Collins v. Dorchester, 
 6 Gush. 396, 1850 ; and both relating to defective highways. In the King 
 t). Hardwick, 11 East, 578, a rated parishioner made a confession, which 
 was admitted in evidence against the parish, on the ground that the parish 
 was an aggregate corporation or company, of which he was a member: 
 compare Mayor, &c. ®. Long, 1 Camp. 68. But this is not the law in this 
 country, and it may be safely laid down that the admission of a corporator 
 cannot be received against the body. Hartford Bank v. Hart,' 3 Day (Conn.) 
 493, denying Eng v. Hardwick, supra; Osgood v. Manhattan Co., 3 Cow. 
 612, 633. But the admission of an officer when made in the ordinary course 
 of his official duty, and within the scope of his powers, may be admissible 
 against the corporation. Peyton v. Hospital, 3 C. & P. 363 ; Angell <fc Ames 
 on Corp. sec. 309 ; lb. sec. 659. Ante, sec. 176, note. 
 
 NoUee to corporator or member is not notice to the corporation ; it should 
 be formally given as such to the authorized head or proper officer; Powles 
 ®. Page, 8 Com. B. 31; Edwards ». Railroad Co., 1 Myl. & Cr. 659; Grant, 
 Corp, 315. Lancey brought an action for Wbd against the mayor and clerk 
 of the city of Bangor for the following statement contained in their annual 
 report: " Balance due from John Lancey, Collector, $6,004.50." The bal- 
 ance was shown to be less. It was held that there was no presumption of 
 law that the officers of a city or town knew the contents of tha city records, 
 
358 MUOTCIPAL CORPORATIONS. [Oh. XI, 
 
 against a town corporation, to support Ms cause of action, 
 tlie plaintiff produced tlie books of the corporation, by 
 which it appeared that the sum demanded in the declaration 
 had been allowed by the council to the plaintiff on the 5th 
 of September, on final settlement, at which time the plain- 
 tiff was present and assented to the settlement. The de- 
 fendant contended that the resolution had been passed by 
 mistake, and offered to show, by the same books, the pass- 
 age, three days afterwards, in the plaintiff's absence, of a 
 resolution rescinding the amount of the plaintiff's accoant. 
 It was held that the subsequent resolution was not com- 
 petent evidence, the court basing this opinion on the prop- 
 osition that the books of a corporation are evidence against, 
 but not in its favor, in an action against the corporation by 
 a stranger.' 
 
 and no rule of law obliging them to be acquainted therewith, and unless 
 the defendants made the publication maliciously they were entitled to a 
 verdict. Lancey ». Bryant, 30 Maine (17 Shep.) 466, 1849. Ante, sec. 176, 
 note. 
 
 ' Mayor ®. Wright, 2 Port. (Ala.) 330, 1885; citing 1 Stark Ev. 293; but 
 is not the proposition too broadly stated \ 
 
Ch. xn.l REQUISITES OP ORDINANCBS. 359 
 
 CHAPTER XII. 
 
 Mttttioipal Okdinanoes oe By-Laws. 
 
 § 243. This subject wiU be considered under the follow- 
 ing heads : — 
 
 1. Definition, Greneral Nature, and Common Law Req- 
 uisites of Ordinances — sees. 344-264. 
 
 2. Of the Signing, Publication, and Recording — secs. 
 265-269. 
 
 3. Of the Power to impose Fines, Penalties, and For 
 feitures— sees. 270-287. 
 
 4. On Whom Binding, and Notice thereof— sees. 288- 
 290. 
 
 5. Ordinances Relating to the Licensing, -Taxing, and 
 Regulation of Amusements and Occupations, including the 
 Sale of Intoxicating Liquors — sees. 291-299. 
 
 6. Ordinances Relating to Public OflFences — sees. 300- 
 302. 
 
 7. Ordinances Relating to the Public Health, Safety 
 and Convenience; Herein of Hospitals, Cemeteries, and 
 Burials ; Nuisances ; Markets and Inspection Regulations ; 
 Dangerous Occupations and Practices^, and of the. Police 
 Power and General Welfare Clauses in Charters — sees. 303- 
 340. 
 
 8. Mode of Enforcing Ordinances : Herein of Actions 
 and Prosecutions, and their Nature ; Mode of Pleading 
 Ordinances ; Requisites of Complaints to Enforce Ordi- 
 nances; Construction, Defences, Evidence, &c. — sees. 341- 
 365. 
 
 Definition, Qeneral Nature, and Common Law Requisites 
 of Ordinances. 
 
 § 244. Definition. — Under the general term of ordi- 
 nances have been sometimes included aU the regulations by 
 v?hich a corporation is governed, including special charter 
 or statute regulations, as well as by-laws. In this country, 
 the term ordinance is not usually applied, if ever, to charters 
 
360 MUNICIPAL COEPORATIONS. [Ch. XIL 
 
 or acta of the legislature respecting municipal corporations, 
 regulating their powers and mode of action, but is limited 
 in its application to the acts, in the nature of local laws, 
 passed by the proper assembly or governing body of the 
 corporation. Indeed, in general and professional use, the 
 term ordinance is almost, if not quite, equivalent in mean- 
 ing to the term ty-law, and is the word most generally used 
 to denote the by-laws adopted by municipal corporations. 
 According to Lord Coke, the w^rd hy or bye signifies a 
 habitation, and thence a by-law in England, and a by-law 
 or ordinance in this country, may be defined to be the law 
 of the inhabitants of the corporate place or district, made 
 by themselves or the authorized body, in distinction from 
 the general law of the country or the statute law of the 
 particular State.' 
 
 ' WiUc. 73; 3 Kyd, 95, 98. 
 
 JDefinitwn and WaVwre of OrAvnances or By-Loms. — In a case in Massachu- 
 setts, denying to towns in that state power, under the statute, to prohibit by 
 ordinance the sale of intoxicating liquor, Mr. Chief Justice Sfhaw observed 
 that the term " by-law " has a limited and peculiar meaning, and is used to 
 designate such ordinances or regulations which a corporation, as one of its 
 legal incidents, has power to make with respect to its own members and its 
 own concerns. In respect to municipal and quasi corporations, this mean- 
 ing has been somewhat extended, but even here the word is used to desig- 
 nate such ordinances and regulations as have reference to legitimate and 
 proper municipal or corporate purpose^. There is a broad distinction 
 between the power of a public corporation to make "by-laws" and the 
 general power to make " laws;" authority to make the former does not in- 
 clude the power to legislate upon general subjects. Commonwealth v. 
 Turner, 1 Cush. 493. A municipal 'by-law^ ^cording to the definition of a 
 distinguished English judge, .is » rule obligatory over a particular district, 
 not being at variance with the general laws of the realm, and being reason- 
 able and adapted to the purposes of the corporation ; and any rule or ordi- 
 nance of a permanent character which a corporation is empowered to 
 make, either by the common or statute law, is a by-law. Per Parke, B., 19 
 Law J. (N. S.) Q. B. 135. 
 
 BesoluUons and Ordinances Disorvminated. — A resolution is an order of the 
 council of a special and temporary character; an ordinance prescribes a per- 
 manent rule of conduct or government. Blanchard®. Bissell, 11 Ohio St. 96, 
 103, per Scott, J. "Where the charter commits the decision of a matter to 
 the council and is silent as to the mode, the decision may be evidenced by a 
 resolution, and need not necessarily be by an ordinance. States. Jersey City, 
 8 Dutch. (N. J.) 493, 1859. A resolution has ordinarily the same effect as an 
 ordinance, as both are legislative acts. Sower e. Philadelphia, 35 Pa. St. 231, 
 
Ch. Xn.] KEQTJISITES OF ORDINANCES. SQl 
 
 § 245. AutTiority Delegated to Municipalities— Nature 
 of Ordinances— Repeal. — Although, the proposition that 
 the legislature of a State is alone competent to make laws is 
 true, yet it is also settled that it is competent for the legisla- 
 ture to delegate to municipal corporations the power to 
 make by-laws and ordinances,' which, when authorized, 
 
 I860 ; Q-as Cfompany v. San Francisco. 6 Cal. 190. Where* the power to make 
 ordinances and by-laws is general, and no form in which these shall be 
 enacted or passed' is prescribed, it was held that an ordinance containing a 
 prohibition and annexing a penalty was valid, notwithstanding it purported 
 by its terms to be a resolution. In substance it was an ordinance or regula- 
 tion, and the form in which it was passed did not make it void. Municipal- 
 ity V. Cutting, 4 La. An. 335, 1849. By one section of the charter, the coun- 
 cil was authorized to make " by-laws, ordinances, resolutions, arid regula- 
 tions," and by another "by-laws and ordiuances " were to be submitted to 
 the mayor for his approval, and it was held that there was no such distinc- 
 tion as to require that " by-laws and ordinances " must, and ' ' regulations 
 and resolutions " need not, be submitted to the mayor, to be approved by 
 him. Kepner v. Commonwealth, 40 Pa. St. 134. The words " regulation," 
 '* resolution," and " ordinance," as used in the charter, defined by Lowrie, 
 C.J. Ih. 
 
 Mode of Exercising Power. — Where the power to do certain acts or pass 
 certain ordinances is conferred upon the council, but the particular mode of 
 exercising the power is not prescribed, this may be done by ordinance, and 
 any mode may be adopted which does not infringe the charter or general 
 law of the land. Thus, for example, power was given to a city " to levy 
 and eolleet a special tax," not specifying the mode of collection ; held that 
 an ordinance requiring the mayor to enforce the collection of the tax by 
 suit, in the nature of an action for debt, was valid, as it did not violate the 
 charter or the general law. Cincinnati v. Gwynne, 10 Ohio, 193; Markle*. 
 Akron, 14 Ohio, 586, 1846. Prescribed mode essential. Crosse v. Morris- 
 town, 18 N. J. Eq. 305. Post, chap. XIX. 
 
 ' Perdue «. Ellis, 18 Geo. 586, 1855; St. Paul «. Coulter, 13 Minn. 41, 
 1866 ; Commonwealth «. Duquet, 3 Teates (Pa.), 493 ; Hill a. Decatur, 33 
 Geo. 303; State v. Clark, 8 Fost. (N. H.) 176, 1854; Milne ». Davidson, 5 
 Martin (La.) 586, 1837; Marble*. Akron, 14 Ohio, 586, 590, 1846; Mayor, 
 &c. V. Morgan, 7 Martin (La. O. 8.) 1, per Martin, J. ; Trigally v. Memphis, 
 6 Coldw. (Tenn.) 383, 1869; Metcalf o. St. Louis, 11 Mo. 103, 1847. In 
 Strauss «. Pontiac, 40 lU. 301, 1866, the Supreme Court held that a pro- 
 vision in a town charter forbidding any person from doing a certain act, 
 fixing the amount of fine, and prescribing the penalty, was a complete 
 enactment of itself; that an ordinance to the same effect was void, and that 
 a party could be prosecuted only under the charter, and not under the 
 ordinance. In view of the general authority given in the same charter to 
 make all ordinances necessary to carry into effect the powers granted in the 
 charter, the correctness of this decision r -ay admit of fair debate, although 
 
362 MUNICIPAL CORPORATIONS. [Ch, XIL 
 
 have the force, as to persons bound thereby, of laws passed 
 by the legislature of the State.' 
 
 § 246. Ordinances being among the most important 
 and solemn acts of a corporatioQ, it is essential to their 
 validity that they shall be adopted hy the proper body, 
 duly assembled, and in the manner prescribed by the 
 charter. What is necessary to constitute a valid corporate 
 meeting, and the manner of perfoEjgaipig valid corporate acts, 
 are subjects treated of in another chapter." When the 
 mode of enacting ordinances is prescribed, it must be pur- 
 sued. Thus, if the charter provides that no by-law shall 
 be passed unless introduced at a previous regular meeting, 
 this is a restriction on the power, and must be observed ; 
 and, accordingly, an ordinance for opening a street was 
 
 it is undoubtedly true that no ordinance is necessary where the prohibition, 
 in the charter is complete, the penalty fixed, and the remedy prescribed. 
 Ashton ®. Ellsworth, 48 111. 399. 
 
 ■ Heland ». Lowell, 3 Allen, 407, 1863; Church v. City, <fcc., 5 Cow. 538 
 1836; St. Louis «: Boffinger, 19 Mo. 13, 15, per Gamble, J.; St. Louisa. 
 Bank, 49 Mo. 574; Jones ». Ins. Co., 2 Daly (N. T.) 307; McDermott ». 
 Board of Police, 5 Abb. Pr. R. 423, 1857. A city council is " a miniature 
 general assembly, and their authorized ordinances have the force of laws, 
 passed by the legislature of the state." Per Scott, J., Taylor v. Carondelet 
 (forfeiture clause in lease), 22 Mo. 105, 1855. In Hopkins «. Mayor of 
 Swansea, 4 M. & W. 621, 640, Lord AMng&r said: "The bylaw has the 
 same efiect within its limits, and with respect to the persons upon whom it 
 lawfully operates, as an act of parliament has upon the subjects at large." 
 Valid ordinances of corporations are as binding on the corporators and in- 
 habitants of the place as the general laws of the state upon the citizens at 
 large. Milne v. Davidson, 5 Martin (La.) 586, 1827. And, therefore, it has 
 been held, that contracts between the inhabitants of a city in violation of 
 the express provisions of a valid ordinance of a municipal' corporation are 
 LUegal, and cannot be enforced. Milne v. Davidson (Lease of house for pri- 
 vate hospital), 5 Martin (La.) 586, 1837 ; Heland «. Lowell, 3 Allen, 407, 
 1867; but compare Baker v. Portland, 58 Maine, 199; S. C, 10 Am. Law 
 Reg. (N. S.) 559, and see Judge BedfielWs note. The courts will not enjoin 
 the passage of unauthorized ordinances, and will ordinarily act only when 
 steps are taken to make them available. Chicago o. Evans, 24 111. 52, 1860; 
 Smith V. McCarthy, 56 Pa. St. 359. But if a party is injuriously affected by 
 an ordinance, he may have its validity judicially determined before it is 
 attempted to be executed. State o. Paterson, 34 N. J. Law, 163. State ». 
 Jersey City, 76. 31, 390, 1870. 
 
 ' Ante, chap. X. 
 
OH. Xn.] EEQinSITES OF ORDINANCES. 363 
 
 adjudged void, on the ground that the name of one of the 
 commissioners was changed without laying the ordinance 
 over until another meeting.' Municipal ordinances other- 
 wise valid, may, like an act of the legislature, be adopted 
 to take effect in future and upon the happening of a con- 
 tingent event." 
 
 § 247. In the absence of required record evidence of 
 the passage of an ordinance, it is not competent to estab- 
 lish its adoption by extrinsic testimony ;' but where unan- 
 imity is necessary to legal authority to make an order, 
 and an order is entered, it wUl be presumed, when the con- 
 trary does not appear, that it was made with the required 
 unanimity.' 
 
 § 248. Courts will not, in general, inquire into the 
 motives of members of the council in passing ordinances.' 
 But in Ohio, in a case where the legislature chartered a gas 
 company, reserving the power of control, and subsequently 
 empowered the city council to regulate the price of gas, the 
 court considered the intention to be to limit the company to 
 a fair and reasonable price, and that it must be fairly ex- 
 ercised, and if, in the colorable exercise of the power, a 
 majority of the members, for a fraudulent purpose, com- 
 bined to fix the price at a rate at which they knew it could 
 not be made and sold without loss, their action would not 
 
 ' State ■». Bergen, 33 N. J. Law, 39, 1868, distinguished from State v. 
 Jersey City, 3 Dutch. 448, where the variance was immaterial. Construction 
 of similar restriction requiring previous publication. In re Douglass, 46 
 N. T. 43; Matter of N.'T., &c. School, 47 N. Y. 556; Dubuque v. Wooton, 
 28 Iowa, 571. 
 
 2 Baltimore b. Clunet, 33 Md. 449, 1865 ; Railway Company ». Baltimore, 
 21 Md. 98, 1863 ; State v. Kirkley, 39 Md. 85, 1868. AnU, sec. 23. 
 
 ' Covington v. Ludlow, 1 Met. (Ky.) 395, 1858. See ante, sees. 238, 
 204 n., 334; 'poxt, sec. 269. 
 
 * Lexington o. Headley, 5 Bush (Ky.) 508, 1869 ; Covington «. Boyle, 6 
 Bush (Ky.) 204, 1869; McCormick v. Bay City, 33 Mich. 457, 1871; see 
 Steckert «. East Saginaw, 22 Mich. 104 ; 'pout, sec. 639. 
 
 ' Freeport t. Marks, 59 Pa. St. 253; Buells. Ball, 20 Iowa, 283 (collateral 
 action between third persons). 
 
364 MUNICIPAL CORPORATIONS. [Ch. XO. 
 
 bind the company, and in such a case, their good faith, it 
 was held, might be inquired into.' 
 
 § 249. Since a valid by-law never becomes obsolete, 
 it remains in force until repealed by the legislature or the 
 corporation. The power to make includes the power to re- 
 peal. The repeal cannot operate retrospectively to disturb 
 private rights vested under it.' Therefore, the legislature 
 having authorized a religious corporation to establish a 
 cemetery within the limits of a city, on obtaining the con- 
 sent of the city, and such consent having been given, the 
 city authorities cannot, after tbeir consent has been act«d 
 upon, repeal tbe resolutions giving it, and enjoin the re- 
 ligious corporation from the use of the cemetery, unless, 
 indeed, it is shown to be an actual nuisance, detrimental to 
 tbe health of the city, in which case its police and govern- 
 mental powers might doubtless be exercised." 
 
 § 250. Mode of Canf erring the Power — Construction 
 of Grants of Authority. — Municipal charters, or incorpo- 
 rating acts, are sometimes silent as to the power to pass %y- 
 
 • State t. Cincinnati Gas Company, 18 Ohio St. 262, 1868, distinguished 
 from Fletcher ». Peck, 6 Cranch, 87 ; Bank «. United States, 1 G. Greene, 
 653. The courts will not inquire, even on the complaint of the state, into 
 the motives which governed members of the legislature in the enactment of 
 a law, or allow to be shown, for the purpose of defeating the operation of 
 the law, that it was passed by fraud, corruption, and bribery of the mem- 
 bers. Wright v. Befrees, 8 Ind. 298; followed, McCulloch v. State, 11 Ih. 
 424, 431, 1858; S. P. Simbury, &c. Railroad Company «. Cooper, 7 Am. 
 Law Reg. 158, 1858. 
 
 « Rex i>. Ashwell, 12 East, 22; 3 Term R. 198; State ®. City Clerk, &c. 7 
 Ohio St. 355; Stoddard v. Gilman, 22 Vt. 568; Pond^. Negus, 3 Mass. 230; 
 ante, chap. X. ; State ®. Graves, 19 Md. 351, 1863 ; Bigelow ts. Hillman, 37 
 Maine, 52; ReiflF®. Conner, 5 Eng. (Ark.) 241 ; Road Case, 17 Pa. St.' 71, 75. 
 An act changing an incorporated town into a city does not of itself repeal 
 pre-existing ordinances. Per iSiSj-onpr, J. ^ Trustees of Academy ®. Erie, 31 
 Pa. St. 515, 1858. AnU, sec. 52; note. 
 
 ' New Orleans ®. St. Louis Church, 11 La. An. 244, 1856, distinguished 
 from Presbyterian Church «. Mayor, 6 Cow. 538; Musgrove ®. Catholic 
 Church, 10 La. An. 431. Ante, sec. 61. The reipeal of an ordinance pvAi 
 an end to a pending prosecution under the repealed ordinance, unless there be 
 a saving clause. The contrary rule as to state statutes held not to apply to 
 by-laws or ordinances. Naylor «. Galesburg, 56 III. 285, 1870. 
 
Ch. XII.] REQUISITES OF ORDINANCES. 365 
 
 laws or ordinances, and where this is the case, the mnnicipal 
 body has the power, incidental to all corporations, to enact 
 appropriate by-laws. Occasionally, the charter or incorpo- 
 rating act, without any specific enumeration of the pur- 
 poses for which by-laws may be made, contains a general 
 and comprehensive grant of power to pass all such as may 
 seem necessary to the well-being and good order of the place. 
 More frequently, however, the charter or incorporating 
 act authorizes the enactment of by-laws in certain speci- 
 fied cases and for certain purposes ; and after this specific 
 enumeration a general provision is added, that the corpora- 
 tion may make any other by-laws or regulations necessary 
 to its welfare, good order, &c., not inconsistent with the 
 constitution or laws of the state. This difi'erence is essen- 
 tial to be observed, for the power which the corporation 
 would possess under what may, for convenience, be termed, 
 "the general welfare clause," if it stood alone, may be 
 limited, qualified, or, when such intent is manifest, impliedly 
 taken away by provisions specifying the particular pur- 
 poses for which by-laws may be made. It is clear that the 
 general clause can confer no authority to abrogate the lim- 
 itations contained in special provisions. When there are 
 both special and general provisions, the power to pass by- 
 laws under the special or express grant can only be exer- 
 cised in the cases, and to the extent, as respects those mat- 
 ters, allowed by the charter or incorporating act ; and the 
 power to pass by-laws under the general clause does not 
 enlarge or annul the power conferred by the special pro- 
 visions in relation to their various subject matters, but gives 
 authority to pass by-laws, reasonable in their character, 
 upon all other matters within the scope of their municipal 
 authority, and not repugnant to the constitution and general 
 laws of the state.' And it has been very properly held, 
 
 • State v. Ferguson, 33 N. H. 424, 1856, where this subject is ably 
 treated in a judgment delivered by Mr. Justice Foster, holding a by-law of 
 the city of Concord, in relation to the sale of intoxicating liquor, invalid 
 as contravening the special provisions of the charter, and therefore not 
 sustainable under the general welfare clause of the charter. 
 
 "The power to make by-laws, when not expressly given, is implied as 
 an incident to the very existence of a corporation, but in the case of an 
 express grant of the power to enact by-laws limited to certain specified 
 
366 MUNICIPAL CORPORATIONS. [Ch. Xn 
 
 that a special grant of power to a municipal .corporation to 
 adopt ordinaQces on eniinierated subjects connected with 
 municipal concerns, is in addition to the incidental- power of 
 the corporation.' 
 
 § 251. Ordinances cannot enlarge or change the 
 Charter or Statute. — Since all of the powers of a corpora- 
 cases and for certain purposes, the corporate power of legislation is con- 
 fined to the objects specified, all other^being excluded by implication." 
 Per Saioyer, J., arguendo, in State v. Ferguson, 33 IT. H. 424, 430, 1856; 
 citing 3 Kyd on Corp. 103; Angell & Ames on Corp. 177; and Child v. 
 Hudson's Bay Company, 3 P. Wms. 307. The true rule in such cases may, 
 perhaps, be 'correctly expressed to be, that the enumeration of special cases 
 does not, unless the intent be apparent, exclude the implied power any fur- 
 ther than necessarily results from the nature of the special provisions: 
 Heisembrittle ». Charleston, 3 McMuUen, 333; Wadleigh ». Gilman, 3 
 Pairf . (Maine) 408 ; State v. Clark, 8 Foster (N. H.) 176, and comments in 
 33 N. H. 433 ; State «. Freeman, 88 N. H. 436 ; Commonwealth a. Turner, 1 
 Cush. (Mass.) 493 ; Collins ®. Hatch, 18 Ohio, 538. See New Orleans «. 
 Philipi (taxation), 9 La. An. 44. 
 
 In Georgia, the Superior Courts adopt the following as the true rule for 
 ascertaining tJie extent of the power of a city to pass ordinances. " The city 
 council is restrained to such matters, whether specially enumerated or in- 
 cluded under general ^ant, as are indifEerent in themselves, such matters as 
 are free from constitutional objection and have not been the subject of 
 general legislation ; or, as it is expressed in the charter, are not repugnant to 
 the constitution or laws of the land." Dubois «. Augusta (health ordinance), 
 Dudley (Geo.) Rep. 30, 1831 ; Williams v. Augusta (powder ordinance), 4 
 Geo, R.~509, 514, 1848. Power to pass necessary by-laws is incidental, but 
 this power is limited not only by the terms, but the spirit and design, of the 
 charter, and the general principles and policy of the common law. Taylor 
 ». Griswold, 3 Green (N. J.) 233, 1834 ; Mount Pleasant v. Breeze, 11 Iowa, 
 399, 1860, per Wright, J. 
 
 ' State V. Morristown, 33 N. J. Law, 57, 1868. Dy)ue, J., in his 
 opinion, distinguishes such a case from Norris v. Staps, Hobart, 310, where 
 the corporation was created by the Crown, and where it was held that a 
 special clause in the letters patent authorizing the corporate body (a fellow- 
 ship of weavers) to make by-laws, did not add tb implied powers, and that 
 its by-la^s were subject to the general law of the realm and subordinate to 
 it. "But," he adds, " a special grant of power to a municipal corporation 
 is an entirely different thing; it is a delegation of authority to legislate by 
 ordinance on the enumerated subjects, and does add to the powers incident 
 to the creation of the corporation. The numerous instances, in our own 
 state, of the grant of such powers in relation to the opening and improve- 
 ment of streets, the making of sewers, and the assessment of taxes, "afford 
 illustrations of this distinction.." lb.- 62. 
 
Ca. Xn.] REQinSITES OF ORDDTANCBS. 367 
 
 tion are derived from the law and its charter, it is evident 
 that no ordinance or by-law of a corporation can enlarge, 
 diminish, or loary, its power s."^ A similar rule obtains in 
 England, where it is held, that neither the king' s charter 
 nor any by-law can introduce an alteration in rules which 
 have been prescribed to a corporation by an act of parlia- 
 ment.' By-laws are, in their nature, strictly local, and 
 subordinate to the general laws. 
 
 § 252. Ordinance Need not Recite Authority to Pass 
 it. — It is not essential to the validity of an ordinance exe- 
 cuting powers conferred by the legislature, that it should 
 state the power in execution of which the ordinance is 
 passed. If it state no particular power as its basis, it will 
 be judicially regarded as emanating from that power which 
 would have warranted its passage. If two such powers 
 
 ' Thompson v. Carroll, 33 How. 433, 1859 ; Andrews ®. Insurance Com- 
 pany, 37 Maine, 356, 1854; Thomas ». Richmond, U. 8. Supreme Court, 
 Dec. T., 1871, 13 Wall. 349. "A power vested by legislation in a city 
 corporation, to make by-laws for its own government and the regulation of 
 its own police, cannot be construed as imparting to it the power to repeal 
 the [general] laws in force, or to supersede their operation by any of its 
 ordinances. Such a power, if not expressly conferred, cannot arise by mere 
 implication, unless the exercise of the power given be inconsistent with the 
 previous law, and does necessarily operate as its repeal pro tanto. Nor can 
 the presumption be indulged, that the legislature intended that an ordi- 
 nance passed by the city should be superior to, or take the place of, the 
 general law of the state upon the same subject," Simpson, C. J., March v. 
 Commonwealth, 13 B. Mon. 35, 39, 1851. " Huckster " means a petty dealer 
 or retailer of small articles of provisions, &c., and an ordinance cannot en- 
 large the ordinary meaning so as to embrace " any person not a farmer or 
 butcher who should sell, or offer for sale, any commodity not of his own 
 manufacture,'" and subject such person to a penalty; it not being, says 
 Bmmey, J., "part of the franchise of municipal corporations to change the 
 meaning of English words." Mayor i). Cincinnati, 1 Ohio St. 368, 373, 
 1853. 
 
 ^ Eex n. Miller, 6 Term R. 377 ; Rex ». Barber Surgepns, 1 Ld. Raym. 
 685. It has even been said that the general assembly cannot authorize a 
 municipal corporation to repeal, by ordinance, a statute of the state. Hay- 
 wood V. Mayor, &c., 13 Geo. 404, per Lwmphin, 3. But it may provide that 
 on the passage of an ordinance of a certain character, the state lav; on the 
 subject shall not b") in force in the corporate limits. State «. Binder, 38 
 Mo. 450. Post, sec. 757. 
 
368 MUNICIPAL CORPORATIONS. FCh. XH. 
 
 exist, it may be impated to either, in conformity to which 
 its provisions and pre-rec[uisites show that it has been 
 adopted. If, in these respects, in accordance with both, no 
 injustice can result in regarding it as the offspring of both, 
 or either of the powers.' 
 
 § 253. Must he Beasondble and Lawful.— In England, 
 the subjects upon which by-laws may be made were not 
 usually specified in the king's Charter, and it became an 
 established doctrine of the courts that every corporation 
 had the implied or incidental right to pass by-laws, but this 
 power was accompanied with these limitations, namely, that 
 every hy-law must he reasonable, not inconsistent with the 
 charter of the corporation, nor with any statute of parlia- 
 ment, nor with the general principles of the common law of 
 the land, particularly those having relation to the liberty of 
 the subject or the rights of private property.' In this 
 country the courts have often aiffirmed the general incidental 
 power of municipal corporations to make ordinances, but 
 have always declared that ordinances passed in virtue of 
 the implied power must be reasonable, consonant with the 
 general powers and purposes or the corporation, and not in- 
 consistent with the laws or policy of the state,' 
 
 ' P&r Dorsey, C. J., Methodist P. Church v. Baltimore, 6 Gill (Md.) 391, 
 1848. Under power to pass an ordinance if found necessa/ry, the necessity for 
 its enactment, being implied from its mere passage, need not be recited in 
 the ordinance, nor averred in proceedings to enforce it. Stuyvesant v. 
 Mayor, &c. of New York, 7 Cow. 588; S. P. Young v. St. Louis, 47 Mo. 
 493, 1871. But the charter may be imperative in requiring the necessity to 
 be expressed by ordinance or resolution : so held in Hoyt v. East Saginaw, 
 19 Mich. 39, 1869. So, in England it is not necessary that the preamble to 
 a by-law should state the reasons for maldng it. Rex v. Harrison, 3 Burr. 
 1838. See, also, G-rierson d. Ontario, 9 Up. Can. Q. B. 633; Fisher d. 
 Vaughan, 10 Up. Can. Q. B. 493. 
 
 ' Sutton's Hospital Case, 10 Rep. 31 a ; Peltmakers v. Davis, 1 Bos. & P. 
 98, 100 ; Norris o. Stops, Hob. 311 ; Rex ®. Maidstone, 3 Burr. 1837 ; Com. 
 Dig. Franch. F. 10 ; London ». Vanacre, 1 Ld. Raym. 496 ; 3 Kyd, chap. 
 IV. sec. 10, p. 95, and cases cited ; Bac. Abr. tit. By-Law. 
 
 ' Must le Be-asoruMe. Kip v. Patterson, 3 Dutch. (N. J.) 398 ; Commis< 
 sioners «. Gas Co., 13 Pa. St. 318, 1859; Fisher v. Harrisburg, 3 Grant (Pa.) 
 Cases, 381, 1854; Commonwealth <o. Robertson, 5 Cush. 438, 1850; Waters 
 r. Leech, 3 Ark. 140; Mayor ®. Winfield, 8 Humph. (Tenn.) 767, 1848; 
 
Sb. Xn.] REQUISITES OP 0BDINANCE8. 359 
 
 § 254, Must not he Oppressive. — The principle of law, 
 that ordinances passed under the general authority to enact 
 all such as will be necessary, must be reasonable, or they 
 may be void, is well illustrated by a case in Pennsylvania.' 
 A municipal corporation passed two ordinances in relation 
 to a gas company — a private corporation, with a special 
 charter authorizing the construction and maintenance of 
 suitable gas works within the limits of the municipal cor- 
 poration, and the use of the streets for the laying down of 
 pipes. The first ordinance prohibited the gas company 
 from opening paved streets from December to March in each 
 year, for the purpose of laying gas mains. This ordinance 
 the court considered to be reasonable, in view of the diffi- 
 culty of repairing the paved streets during the winter 
 months. And the other ordinance prohibited the gas com- 
 pany from opening a paved street at any time, for the pur- 
 pose of laying pipes from the main to the opposite side of 
 
 Commonwealth ®. Steflfee, 7 Bush (Ky.) 161, 1870 ; People «. Throop, Vi 
 Wend. 183, 186, 1834; Mayor «. Beasley, 1 Humph. 233, 1839; State v. 
 Freeman, 38 N. H. 436, 1859; White r>. Mayor, «&c., 3 Swan (Tenn.) 364, 
 1853; Pedrick v. Bailey, 13 Gray (Mass.) 161; Dunham 11. Rochester, 5 Cow. 
 463 ; Clason «. Milwaukee, 30 Wis. 316, 1873. 
 
 Must not confliet wi/.h the cha/i-teror statute, or "be repwgnant to fundamental 
 rights. Dubois «. Aigusta (health ordinance), Dudley (Geo.) R. 80, 1831; 
 Williams v. Augusta (powder ordinances), 4 Geo. 509, 1348; Adams v. 
 Mayor, &c. (liquor statute), 29 Geo. 56 ; Taylor ®. Griswold, 3 Green (N. J.) 
 233, 1834; New Orleans v. Philpi (taxation), 9 La. An. 44; Perdue ». Ellis 
 (liquor traffic), 18 Geo. 586 ; Haywood v. Mayor, 13 Geo. 404 ; Paris v. 
 Graham (tax on dram-shops), 33 Mo. 94; St. Louis ». Cafflerata, 34 Mo. 94; 
 St. Louis V. Benton, 11 Mo. 61 ; Carr «. St. Louis (fee of officers), 9 Mo, 1845 ; 
 Marietta v. Fearing (estray animals), 4 Ohio, 437, 1831 ; Collins «. Hatch 
 (animals at large), 18 Ohio, 532, 1849 ; Mayor, &c. of New York v. Nichols 
 (inspection laws), 4 Hill, 309, 1843; Commonwealth v. Turner (liquor traf- 
 fic), 1 Cush. 493, 1848; Phillips v. Wickam, 1 Paige, 590; Howards. Savan- 
 nah, T. Charlt. R. 173; Smith v. Knoxville, 3 Head (Tenn.) 345, 1859; 
 Cowen «. West Troy, 43 Barb. 48, 1864; Petersfleld ». Vickers, 3 Coldw. 
 (Tenn.) 205; City Council «. Benjamin, 2 Strob. (South Car.) 251; City 
 Council v. Ahrens, lb. 341 ; Heisembrittle Ads. «. City Council, 3 McMul. 
 (South Car.) 333; City Council «. Goldsmith, 3 Speer (South Car.) 435; 
 State «. Welch, 36 Conn. 315. An ordinance prohibiting heavy awnings 
 over sidewalks, withftut consent of municipal authorities, is reasonable and' 
 valid. Pedrick v. Bailey, 12 Gray, 161. 
 
 ' Commissioners of North Liberties «. Gas Company, 13 Pa. St. 318, 1849* 
 24 
 
370 MUNICIPAL CORPOKATIONS. fCn. XH. 
 
 the street. The court say : "The effect of this ordinance 
 is, to compel the company to construct two mains, one on 
 each side of the street, instead of one, thereby materially 
 increasing the expense to the company, and consequently 
 enhancing the price of gas to the inhabitants of the district." 
 And this ordinance was declared to be void. 
 
 § 255. Courts will declare void ordinances that are op- 
 pressixie in their character. Th^fs, the Supreme Court of 
 Tennessee, in a judgment which reflects credit upon the 
 tribunal that pronounced it, declared void an ordinance of 
 the city of Memphis which ordered the arrest, imprisour 
 ment, and fine of all free negroes who might be found out 
 after ten o'clock at night, within the limits of the corpora- 
 tion.' 
 
 § 256. Must he Impa/rttal, Fair, and Oeneral. — As it 
 would be unreasonable and unjust to make, under the same 
 circumstances, an act done by one person penal, and if done 
 by another not so, ordinances which have this effect cannot 
 be sustained, fecial and unwarranted discrimination, 
 or unjust or oppressive interference in particular cases is 
 not to be allowed. The powers vested in municipal cor- 
 porations should, as far as practicable, be exercised by 
 ordinances general in their nature and impartial in their ■ 
 operation." 
 
 ' Mayor v. Winfleld, 8 Humph. (Tenn.) 767, 1848. The oppressiveness 
 and inequality, alleged to invalidate a by-law, must be made apparent to 
 the court. Mayor v. Beasley, 1 Humph. (Tenn.) 333, 1839; St. Louis v. 
 Weber, 44 Mo. 547, 1869. A by-law prohibiting swine running at large in a 
 city is presumptively reasonable as a sanitary or police regulation. Com- 
 monwealth v. Patch, 97 Mass. 331 ; Commonwealth o. Bean, 14 Gray, 53. 
 
 ' Russ V. Mayor, &c. of New York, 13 N. Y. Leg. Obs. 38 ; White v. 
 Mayor, 3 Swan (Tenn.) 864, 1853; De Ben b. (Jirard, 4 La. An. 30; Chicago 
 ». Eumpff, 45 m. 90; Mayor, &c. of Hudson v. Thome, 7 Paige, 361. Or- 
 dinances should be general, or, at all events, not discriminating in their 
 operation. They may, it is said, impose fines on persons violating their 
 provisions within the corporation or within a designated district therein, or 
 in a certain street ; but an ordinance naming one individual and directing 
 him to do certain acts with respect to a building alleged to be a nuisance, 
 and in default of compliance, imposing a fine of a specific amount upon 
 him, was held to be unreasonable, contrary to common right, and void. 
 
Oh. Xn.] EEQUISITES OF OEDINANCES. 371 
 
 § 257. May regulate, hut not Restrain, Trade.— In 
 England, certain castoma prevail in prescriptive corpora- 
 tiona restrictive of freedom of trade and against common 
 riglit. Such customs, from long usage and unknown origiu, 
 are regarded in the light of regulations prescribed by a 
 charter which is supposed to have existed, but is lost. 
 Such customs, while not favored by the English courts, are 
 yet held legal, but must be incontrovertibly established. 
 But by the Municipal Corporations Act of 1835 (5 & 6 Will. 
 rV. chap. LXXyi. sec. 14),' exclusive rights of trading 
 have been abolished, and it is enacted, "that notwithstand- 
 ing such custom or by-law [to the contrajy], every person 
 in any borough may keep any shop for the sale of all lawful 
 wares and merchandise, by wholesale or retail, and use 
 every lawful trade, occupation, mystery, and handicraft, 
 for hire, gain, sale, or otherwise, within any borough." 
 
 § 258. In this country corporations derive all their 
 powers from legislative acts of comparatively modern date, 
 and prescriptive customs, in restraint of trade' or against 
 common right, are unknown. No inconsiderable portion of 
 the cases in the old books in England relate to these cus- 
 toms, their validity and mode of proof, but they are, in the 
 main, inapplicable to the present period and to the institu- 
 tions in this country, where freedom in the choice and pur- 
 suit of all occupations never has been denied. The inappli- 
 cability of the English decisions is noticed by Mr. Justice 
 Dewey in delivering the opinion of the Supreme Court of 
 
 Municipality t. Blineau, 3 La. An. 688, 1848. Compare Bozant v. Campbell, 
 9 Rob. (La.) 411, 1845, where, without repealing an ordinance prohibiting 
 private hospitals, the grant of permission to one or more individuals to erect 
 such hospitals, was sustained. And see, also, Commonwealth e. Goodrich, 
 13 Allen, 545, where a municipal regulation, limited in its charter, was con- 
 sidered valid. In exercising its power to require adjacent lot owners to 
 make local improvements, the corporation, it has been held in Tennessee, 
 must .not act in a partial and oppressive manner ; therefore it cannot select 
 particular individuals by name, and require them to construct pavements or 
 local improvements in front of their lots, and omit others in the same im- 
 provement district, if this be done without good cause or reason for the 
 distinction. White «. Mayor, &c., 3 Swan (Tenn.) 364, 1853. Po»t, sec. 
 638. 
 
 ■ Ante, chap. EH. sec. 16 and note. 
 
372 MUNICIPAL COEPOEATIONS. [Oh. XIL 
 
 Massacliusetts in an important case involving the validity 
 of an ordinance of the city of Boston regulating the use of 
 hackney coaches and other vehicles within the city. He 
 observes, that "in the arguments addressed to the court, 
 the question was somewhat discussed as to the power 
 incident to municipal corporations to create by-laws of the 
 character here adopted ; and a . reference was made to 
 various cases in the English courts, where questions of this 
 nature had arisen. Upon examinatioti of those cases, they 
 will be found less important and less, satisfactory as guides 
 here, inasmuch as it is quite obvious that in many of them, 
 and particularly those where the ordinance seemed most 
 questionable as not being within the ordinary exercise of 
 municipal authority, the by-laws were sustained upon the 
 ground of ancient and long-continued usage, ripening into 
 a prescriptive right on the part of the municipal corpora- 
 tion." But "no such ground," he adds, "can be urged 
 here, and the present ordinance, if sustained at all, must be 
 shown to be authorized by the express provision of the 
 charter, or be derived as an incidental power resulting from 
 its incorporation as a city, or be found in some general or 
 special statute.'" 
 
 ■ Commonwealth d. Stodder, 2 Cush. 563, 568, 1848. See as to English 
 decisions, remarks of Shodes, J., in Herzo v. San Francisco, 33 Cal. 134, 145, 
 1867. In the case first cited the court decided that the business of ea/rrymg 
 persons for hire from town to town, in stage coaches and omnibuses, is not 
 so far a territorial or local occupation as wiU authorize one city, unless it 
 has express and direct authority so to do from the legislature, to pass an 
 ordinance requiring the inhabitants of other towns to obtain from it a 
 license before exercising that employment in carrying persons to or ii-om 
 it. Such an ordinance was considered to be an unnecessary restraint upon 
 business, and is not binding upon citizens of other places. The court does 
 not question the right of the city, by reasonable by-laws, to require inhabi- 
 tants, whose business is local and carried on within the city, to obtain a li- 
 cense before exercising certain employments. Per Dewey, J., 3 Cush. 563, 
 575; see also Napman v. People, 19 Mich. 353, 1869; Barling v. West, 39 
 Wis. 307 ; Hayes «. Appleton, 34 Wis. 642. 
 
 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 indi- 
 viduals or the public, the power to do so must come from plain and direct 
 legislative enactment. Taylor «. Griswold, 3 Green (N. J.) 333, 1834. Ante, 
 sec. 55, and note. 
 
Bh. Xn.] EEQDI8ITES OF OEDINANCES. 373 
 
 § 259. Must not Conl/ravene Common Might. — An 
 ordinance cannot legally be made wMch. contravenes a 
 common right, unless the power to do so be plainly con- 
 ferred by legislative grant ; and in cases relating to such a 
 right, authority to regulate conferred upon towns of limited 
 powers, has been held not necessarily to include the powei 
 to prehibit.' Thus, in Connecticut, it is held that every 
 one has, presumptively, a common law right to fish in 
 navigable rivers, and that though every town may, by 
 statute, have the power to make by-laws to regulate fish- 
 eries of clams and oysters within its limits, yet this power 
 does not authorize a by-law prohibiting all persons, except 
 its own inhabitants, from taking shell-fish in a navigable 
 river, within the limits of such town ; such a by-law, being 
 in contravention of a common right, is void." 
 
 § 260. But there is, however, no common right to do 
 that which, by a valid law or ordinance, is prohibited ; and 
 hence courts will not declare an authorized ordinance void 
 because it prohibits what otherwise might lawfully be done. 
 In discussing the subject, Mr. Justice Moans illustrates it 
 in this wise : "If there was no law interfering, the butcher 
 might kill his beeves and hogs in the street. If the butcher 
 could do it any man might, and it might, therefore, be said 
 to be a common right ; but when the law prohibited it, it 
 was no longer a common right. A legal restraint may be 
 imposed on a few for the benefit of the many.'" 
 
 § 261. Validity is for the Court, and not the Jury, to 
 Determine. — Whether an ordinance be reasonable and con- 
 sistent with' the law or not, is a question for the court, and 
 not the jury, and evidence to the latter on this subject is 
 inadmissible. But in determining this question the court 
 will have to regard all the circumstances of the particular 
 
 ' Taylor v. Griswold, 2 Green (N. J.) 223, 1834. 
 
 s Hayden «. Noyes, 5 Conn. 391, 1834 ; Peck «. Lockwood, 5 Day (Conn. 
 22; Willard ». Killingworth, 8 Conn. 247; Clason «. Milwaukee, 80 Wis. 
 316. Ante, sec. 55. 
 
 • Per Evans, J., in City Councils. Ahrens, 4 Strob. (South Car.) Law, 341, 
 257, 1850; City Council «. Baptist Church, /&. 306, 310; Peoria «. Calhoun, 
 29 El. 317, 1863; St. Paul v. Coulter, 13 Minn. 41, 1866. 
 
374 MUNICIPAL COKPORATIONS. [Ch. XIL 
 
 <jity or corporation, tlie objects sought to be attained, and 
 the necessity which exists for the ordinance. Eegulations 
 proper for a large and prosperous city might be absurd or 
 oppressive in a small and sparsely populated town, or in 
 the country. An unreasonable byjaw is void.' 
 
 § 263. Legislative Authority to Adopt Unreasonable 
 Ordinances. — ^Where the legislature, in terms, confers upon 
 a municipal corporation the power ^ pass ordinances of a 
 specified and defined character, if the power thus delegated 
 be not in conflict with the constitution, an ordinance passed 
 
 ' Bacon Abr. tit. By-Law ; Commonwealth v. Worcester, 3 Pick. 463, 
 1862; Paxsons. Sweet, 1 Green (N.J.) 196, 1832; Vandine, Petitioner, &c., 
 6 Pick. 187, 1828; Boston «. Shaw, 1 Met. 130, 135, 1840; Austin v. Murray, 
 16 Pick. 121, 125, 1884 ; Hudson ®. Thome, 7 Paige, 261 ; Common'wealth 
 e. Stodder, 3 Cush. 562, 573, 1848; Commonwealth v. Gas Company, 13 Pa. 
 St. 318. Dunham «. Rochester, 5 Cow. 462, 465, 1826 ; Buffalo b. Webster, 
 10 Wend. 100. 
 
 " Where the municipal legislature has authority to act, it must be goy- 
 emed, not by our discretion, but by its own ; and we shall not be hasty in 
 convicting them of being unreasonable in the exercise of it." Per Lowrie, 
 J., Fisher ». Harrisburg, 3 Grant (Pa.) Cas. 391, 1854. 8. P. St. Louis ®. 
 Weber, 44 Mo. 547. "The courts," says Bewey, J., "doubtless have the 
 power to deny effect to a by-law obnoxious to the objection that it is un- 
 reasonable. It is, however, a power to be cautiously exercised, " especially 
 where the question is a practical one — for example, the length of time 
 which ought to be allowed to vehicles to remain in the street, and as to 
 which the city authorities, it is to be presumed, can judge better than the 
 court. Commonwealth «. Robertson, 5 Cush. 438, 442, 1850. See, also, Vint- 
 ners v. Passey, 1 Burr. 339 ; Workingham ®. Johnson, Cas. Temp. Hardw. 
 285; Poulter's Co. «. Phillips, 6 Bing. (N. 0.) 814; St. Paul ». Coulter, 13 
 Minn. 41 ; Commonwealth v. Patch, 97 Massi 231. 
 
 The doctrine of the text that the validity of a by-law is in all cases a 
 question for the court and that evidence to the jury is inadmissible, has 
 been denied by the Supreme Court of Wisconsin which, in Clason «. Mil- 
 waukee, 30 Wis. 316, 1872 (involving the validity of an ordinance to pro- 
 tect the. harbor, and also the city, from inundation by preserving 'the shore 
 or beach), considered it to be no violation of principle, in a case where the 
 reasonableness of the ordinance depended upon extrinsic facts, to submit 
 testimony to the jury bearing upon the reasonableness of the requirements 
 of the ordinance. But the argument of the counsel for the city that this 
 view makes the same by-law " valid in one case and invalid in another, ac- 
 cording to the varying weight of testimony and the varying views of juries " 
 seems unanswerable, and the text states probably the true doctrine. See 
 Glover on Corp. 297, and cases in this note. 
 
Ch. XU.J REQUISITES OF ORDINANCES. 375 
 
 aursuant thereto cannot be impeached as invalid because it 
 fFOuld have been regarded as unreasonable if it had been 
 passed under the incidental power of the corporation, or 
 under a grant of power general in its nature. In other 
 words, what the legislature distinctly says may be done 
 cannot be set aside by the courts because they may deem it 
 unreasonable. But where the power to legislate on a given 
 subject is conferred, but the mode of its exercise is not 
 prescribed, then the ordinance passed in pursuance thereof 
 must be a reasonable exercise of the power, or it will be 
 pronounced invalid.' 
 
 § 263. Must be Consistent with Publio Legislati'pe 
 Policy.— The rule that a municipal corporation can pass no 
 ordinance which conflicts with its charter or any general 
 statute in force and applicable to the corporation has been 
 before stated. Not only so, but it cannot, in virtue of its 
 incidental power to pass by-laws, or under any general 
 grant of that authority, adopt by-laws which infringe the 
 spirit or are repugnant to the policy of the state as declared 
 in its general legislation. This principle is well exemplified 
 by a case in Ohio," in which incorporated towns were, by 
 statute, prohibited from subjecting stray animals owned by 
 persons not residents of such towns to their corporation 
 ordinances. It was held that an ordinance operating, not 
 on the animals but on the non-resident owner, in the shape 
 of a penalty, violated the spirit of the statute, and was void. 
 So, in a later case in the same state, it was shown that the 
 general policy of the state was to allow animals to run at 
 large ; and it was ruled that a municipal corporation with 
 power to pass " all by-laws deemed necessary for the well 
 regulation, health, cleanliness, &c.," of the borough, and 
 with power to "abate nuisances," had no authority to pass 
 a by-law restraining cattle from running at large, such a by- 
 law being in contravention of the general law of the state.' 
 
 • Peoria d. Calhoun, 29 HI. 317, 1863; St. Paul®. Coulter, 13 Minn. 41, 
 1866. 
 
 '' Marietta «. Fearing, 3 Ohio, 437, 1831. 
 
 « Collins V. Hatch, 18 Ohio, 433, 1849. But in Illinois it has been de- 
 cided that a town, authorized by its charter to declare what should be 
 nuisances, and to provide for the abatement thereof by ordinance, may 
 
376 MUNICIPAL C0RP0KATI0N8. [Ch. XH. 
 
 § 264. The general statutes of the state abolished the 
 system of inspecting hay, and, in the place of it, the seller 
 was recLuired to prepare the article for market in a particu- 
 lar manner at the peril of being subjected to certain desig- 
 nated penalties. In other words, he was at liberty to dis- 
 pose of his hay without inspection if he chose to do so. 
 Under these circumstance, it was decided that a city ordi- 
 nance prohibiting the sale of pressed hay without inspection 
 was Yoid, because it conflicted 'Mth the laws of the state 
 upon the same subject.' 
 
 Of the Signing, Publication, and Recording of Ordi- 
 nances. 
 
 % 365. Signing, Publication, and Recording. — When 
 ordinances are required to be published before they shall go 
 into effect, this requirement is essential, and the publication 
 must be in the designated mode. Until such publication be 
 made, or until they have gone into operation, no penalty 
 
 pass an ordinance declaring swine running at large within the corporation 
 to be nuisances, and providing for the taking up of the same, &c., and this 
 though under the laws of the state the owners of stock may lawfully allow 
 it to run at large upon the common — -the court regarding the power named 
 in the charter as abridging or limiting any right of common which might 
 otherwise exist. Roberts ». Ogle, 30 111. 459, 1863. By-laws which contra- 
 vene the policy of the general statutes of the state, by undertaking to pun- 
 ish acts which those statutes authorize, are void. Canton v. Nist, 9 Ohio 
 St. 439, holding void a by-law, which, disregarding the statutory excep- 
 tions of cases of necessity, charity, &c., prohibited the opening of shops for 
 business on Sunday. Followed, Thompson v. Mount Vernon, 11 II. 688, 
 adjudging an ordinance to be invalid because inconsistent with the liquor 
 law of the state. And see Adams v. Mayor, &c., 39 Geo. 56; Sill «. Com- 
 ing, 1 B. P. Smith (N. Y.) 397; Cincinnati «. Gynne, 10 Ohio, 390; Wood 
 r. Brooklyn, 14 Barb. 435; Markle v. Akron, 14 Ohio, 586; Thomas v. 
 Richmond, U. 8. Sup. Ct. Dec. Term, 1870, 13 Wall. 349. But a corpora- 
 tion may, in some cases, consistently with general law, further regulate by 
 ordinance subjects already regulated by statute. Huddleson ». Ruffin, 6 
 Ohio St. 604 ; Rogers «. Jones, 1 Wend. 337 ; State «. Welch, 36 Conn. 315, 
 1869. 
 
 ' Mayor, &c., of New York v. Nicholls, 4 Hill CN. Y.) 309, 1843. Com- 
 pare, Mayor «. Hyatt, 3 E. D. Smith, 156; Rogers ®. Jones, 1 Wend. 3i7. ^^q 
 Construction of power to appoint weighmasters. Hoffman v. Jersey City, 
 34 N. J. Law, 173, 1870. 
 
Dh. Xn.] SIGNING, &o. OF ORDINANCES. 377 
 
 lan be enforced under them.' Whether the mayor's signa- 
 ture is essential to the validity of an ordinance depends 
 upon the charter, but unless made essential, such provisions, 
 where the ordinance is duly enacted, have sometimes been 
 regarded as directory." 
 
 § 266. Where alternate modes of publication of a by 
 law are allowed by statute, and the statute requires the cor- 
 'poration to direct which mode shall be adopted, a publica- 
 tion made by order of the clerk, without direction from, or 
 selection of, the mode having been made by the corporation, 
 is not valid.' 
 
 § 267. A municipal charter required every ordinance to 
 
 ' Bamett v. Newark, 28 111. 62, 1863; Conboy s. Iowa City, 3 Iowa, 90, 
 1855 ; Hlgley a. Bunce, 10 Conn. 567, 1835. Failure to publish ordinance 
 held not to afEect validity of bonds issued under a subsequent act authorizing 
 the corporation to incur a debt. Amey v. Allegheny City, 34 How. 364 ; 
 Clark «. Janesville, 10 Wis. 136, 1859; State «. Newark, 1 Vroom (N. J.) 
 303 ; People v San Francisco, 37 Cal. 655. 
 
 ' Blanchard v. Bissell, 11 Ohio St. 96, 101, 103, 1860; Striker®. Kelly 
 7 Hill, 9 ; Elmendorf v. Mayor of New York, 25 Wend. 693. See, however 
 Conboy o. Iowa City, supra; State ®. Newark, 1 Dutch. 399; State v. Hud- 
 son, 5 Dutch. 475; Kepner v. Commonwealth, 40 Pa. St. 124; State ®. 
 Jersey City, 1 Vrnom, 93; Creighton «. Manson, 27 Cal. 613; Taylor v. 
 Palmer, 31 Cal. 241 ; Dey ®. Jersey City, 19 N. J. Eq. 413; Gas Company v. 
 San Francisco, 6 Cal. 190. See ante, chapter on Corporate Meetings, sec. 
 331. Signing minutes not equivalent to signing resolution, when latter is 
 essential. Graham v. Carondelet, 33 Mo. 262, 1863. When to be signed. 
 Miles V. Bough, 3 Gale & D. 119 ; Inglis v. Railway Company, 16 Eng. Law 
 & Eq. 55. A legislative provision requiring the presiding officer of the 
 council to sign all ordinances, is directory in its nature. If regularly 
 passed, an ordinance is valid, though not thus authenticated. It is, of 
 course, competent for the legislature to make the signature an essential 
 condition of validity. Blanchard v. Bissell, 11 Ohio St. 96, 101, 103, 1860 ; 
 Fisher «. Graham, 1 Cin. (O.) 113, 1870. AnU, sec. 331. See State v. 
 Newark, 1 Dutch. (N. J.) 399. Ante, sec. 309, note. 
 
 = HigbyB. Bunce (restraining cattlej 10 Conn. 435; S, 0.,ll. 567, 1835. 
 The language of the statute was this: " Such by-laws shall not be in force 
 until published four weeks in a newspaper printed in such town, or in the 
 town nearest to such town in which a newspaper is printed, or in some 
 other newspaper generally circulated in the town where such by-law is 
 made, as the town shall direct." Rev. 1831, p. 458. Held, that the town 
 must point out one of the three descriptions of newspapers in which the 
 by-law should be printed. lb. 
 
378 MUNICIPAL COKPOEATIONS. [Ch. XU. 
 
 be pvMished for the space of twenty days in at least one 
 newspaper before it should go into effect ; and it was held 
 that an ordinance would go into force in twenty days after 
 its publication in the first number of the paper ; that twenty 
 days need not intervene between the first and last insertions ; 
 that it is clearly suflSlcient if it be published in each number 
 of the paper issued within the twenty days, and probably 
 sufficient if there is but one insertion, twenty days after 
 which the ordinance will go into te'ect. ' 
 
 § 268. A charter provided that no ordinance should be 
 in force until published in some newspaper of the place, and 
 also declared that ordinances should be sufficiently proved 
 in any court (among other modes) by a printed copy taken 
 from the newspaper or printed pamphlet in which the same 
 had. been published, provided the same purports to have 
 been done by authority of the corporation. Under this pro- 
 vision, the production of a newspaper published in the 
 town, containing what appears as an ordinance, with a 
 caption, "Published by Authority," duly signed, is evi- 
 dence of the existence and adoption of the ordinance." 
 
 § 369. A provision in a statute changing an incorporated 
 town into a city, that the existing town ordinances shall re- 
 main in force provided they shall be recorded within four 
 months thereafter, is merely directory, and such ordinances 
 are valid though not recorded within the designated period.' 
 Nor is it a valid objection to a municipal ordinance that it 
 is recorded in print (being printed and pasted in the proper 
 book), and not in manuscript.* 
 
 ' Hoboken o. Gear, 3 Dutch. (N. J.) 165, 1839. Where a city is required 
 to promulgate its ordinances, it is suificient to publish them in the news- 
 paper in which the ordinances are usually published, though there may be. 
 other newspapers within the city. Truchelut b. City Council, 1 Nott & McO. 
 (South Car.) 337, 1818. 
 
 " Block V. Jacksonville, 36 HI. 301, 1865. See Pendegast v. Peru, 30 
 HI. 51. Proof of publication under special charter proTision. President, 
 &c. V. O'Malley, 18 111. 407. 
 
 ' Trustees of Academy «. Erie, 31 Pa. Si 515, 1858. Amey «. Allegheny 
 City, 34 How. 364. See Chapter on Corporate Records and Documents, 
 ante. 
 
 * Ewbanks v. Ashley, 36 HI. 177, 1864. Parol evidence of resolutions is 
 
fta. Xn.] POWER TO IMPOSE FINES, &o. 379 
 
 Of the Power to Impose Fines, Penalties, and 
 Forfeitures. 
 
 % 270. Common Law Principles Adopted. — That by- 
 laws or ordinances may not be inoperative or useless, it ia 
 necessary that some penalty should be annexed to the 
 breach of them ; and it is settled in England, in accordance 
 with the principles of Magna Charta, that without the ex- 
 press sanction of parliament no by-law can be enforced by 
 disfranchisement of the oflfender, or by his imprisonment, or 
 by forfeiture of his goods or property. Under incidental 
 power to pass by-laws, a corporation may, in England, an- 
 nex pecuniary penalties of a certain fixed and reasonable 
 eharacter, but without express authority given by a statute, 
 the only penalty it can prescribe is a pecuniary one, usually 
 oalled a fine. Therefore, in the absence of a statute or 
 special custom justifying it, a by-law cannot give a power 
 of distress and sale of the goods of the offender, since such 
 a power is contrary to the common law. And where a cor- 
 poration is empowered to enforce its by-laws, in a special 
 manner, as by fine, it is limited to the manner prescribed. 
 These safe, salutary, and enlightened principles of law have 
 been recognized by the American courts as applicable to the 
 ordinances of our municipal corporations, as the cases to 
 which reference will be made fully show. 
 
 § 271. By the Municipal Gorporaiions Act, the subject 
 of by-laws and their penalties is regulated. It is declared, 
 " that it shall be lawful for the council of any borough to 
 make such by-laws as shall to them seem meet for the 
 good rule and government of the borough, and for the pre- 
 vention and suppression of all such nuisances as are not 
 already punishable in a summary manner by virtue of an 
 act in force throughout such borough, and to appoint, by 
 such hy-laws, such fines as they shall deem necessary for 
 the prevention and suppression of such offences ; provided 
 
 competent where the charter does not require them to be recorded, and 
 no record thereof has been made. Darlington ®. Commonwealth, 41 Pa. 
 St. 68. See ante, sec. 347. 
 
380 MUNICIPAL COKPORATIONS. [Ch. XH. 
 
 that no fine, to be so appointed, shall exceed the sum of 
 five pounds, and that no such by-law shall be made, unless 
 at least two-thirds of the whole number of the councU shall 
 be present.'" Respecting the fines mentioned in this sec- 
 tion, Mr. Eawlinson suggests the inquiry whether it be 
 necessary or not that the exact amount of each fine should 
 be mentioned in the by-law, the limit, to wit, 61., being fixed 
 by the act. It is contended, he observes, by some persons, 
 that the amount may be left open, and that a by-law enact- 
 ing that the offence shall be punishable by a fine not less 
 than 105. and not exceeding 51. would be valid. This would 
 be convenient, but some have doubted whether the corpora- 
 tion could enforce it by the usual common law remedies, 
 viz: by an act of debt or assumpsit. It is believed, he 
 adds, that by-laws have invariably fixed the exact sum , 
 but, nevertheless, it would seem that a fine of 51., with 
 power to the mayor or other officer to reduce it to any sum 
 not exceeding a specified amount, would be good." In this 
 country, the practice, if not general, is at least not uncom- 
 mon, to prescribe limits to fines, and allow them to be im- 
 posed within those limits, at the discretion of the magistrate 
 or court intrusted with jurisdiction to hear complaints for 
 breaches of municipal ordinances. 
 
 § 272. Imi/plied Power to Annex Pecuniary Penalties. — 
 Since an ordinance or by-law without a penalty would be 
 nugatory,' municipal corporations have an implied power to 
 provide for their enforcement by reasonable and proper 
 fines against those who break them.* So the right to make 
 
 * 5 & 6 Will. IV. chap. LXXVI. sec. 90. AnU, sec. 16, and note. 
 
 * Rawlinson on Corp. (5th ed.) 165, 166, note. Infra, sec. 3T5. 
 
 ' State «. Cleveland, 3 Rh. Is. 117. Bnt no penalty can be enforced for 
 an illegal exaction. Mayor «. Avenue Railroad Company, 33 N. T. 43 ; 82 
 11. 261. " Municipal fine," as used in the constitution of California, means 
 a fine imposed by local laws of particular places, such as incorporated 
 towns and cities, and not a fine imposed by the general laws of the State. 
 People v. Johnson, 30 Cal. 98, 1866. 
 
 * Fisher «. Harrisburg, 3 Grant (Pa.) Cas. 291, 1854; Barter v. Common- 
 wealth, 3 Pa. (Pen. & W.) 253 ; Trigally b. Memphis, 6 Ooldw. (Tenn.) 382, 
 1869. The amount must be reasonable. Zylstra v. Charleston, 1 Bay (South 
 Car.) 383. The penalty, says Mr. Willcock, must be imposed on the person 
 who violates the by-law. Thus, if goods be sold by an unauthorized per 
 
Ch. Xn.] POWER TO IMPOSE PINES, &o. 381 
 
 by-laws gives to the corporation, without any express grant 
 of power, the incidental right to enforce them by reasonable 
 pecuniary penalties. What is reasonable depends upon the 
 nature of the offence and the circumstances.' 
 
 § 273. Oharter Mode Ooverns. — Where the charter or 
 organic act prescribes the manner in which by-laws are to 
 be enforced, or the sanctions ov punishments to be annexed 
 to their violation, this constructively operates to negative 
 the right of the corporation to proceed in any other manner, 
 or to inflict any other punishment. Thus, in the leading 
 case' on this subject, the charter prescribed in what manner 
 
 son within the city, the penalty must be imposed on the seller, and not on 
 the buyer, for how can he distinguish between those authorized to sell and 
 those who are not. Willc. on Corp. 154, pi. 369, 370 ; Cadden ®. Eatwick, 
 1 Salk. 143, 193; S. C, 6 Mod. 134; and see, also, Pazakerley o. Wiltshire, 
 1 Stia. 469. The rule stated above, as to the person on whom penalties 
 must be imposed, may be extended or enlarged by express provisions of the 
 organic act of the corporation. 
 
 " Mayor, &c. of Mobile ®. Tuille, 8 Ala. 137, 1841. A penalty, although 
 small, fixed on every stroke of the hammer which an unauthorized per- 
 son uses in his trade of a goldsmith, is unreasonable, Willc. 154, pi. 368. 
 Same principle. Mayor, &c. of New York v. Ordrenan, 13 Johns. 133,1815. 
 
 ^ Kirk V. Nowill, 1 Term E. 118, 134, 1786, per Mansfield and Buller ; fol- 
 lowed in Hart V. Mayor, &c., 9 Wend. 571, 588, 606, 1833; Cotter b. Doty, 5 
 Ohio, 394, 1833 ; Heise v. Town Council, 6 Rich. (South Car.) Law, 404, 1853 ; 
 Miles V. Chamberlain, 17 Wis. 446, 1863. In Hart v. Mayor, supra, it was ac- 
 cordingly decided that a corporation having authority "to inflict penalties 
 for the violation of any by-law, not exceeding $35 for any one ofience," 
 could not pass a by-law subjecting property to seizure and sale, or forfeiting 
 it, even though it was used contrary to the by-law which was in other 
 respects valid, the remedy for enforcing their by-laws having been specified. 
 9 Wend. 571. Infra, sec. 383; sec. 656. 
 
 Where ^edfia modes of procedure and penalties are prescribed against 
 persons failing to take out license for keeping drinking houses, as fines, 
 suits, and prosecutions, a municipal corporation, in the absence of express 
 grant, has no right to close the doors of a drinking house sunimarily, be- 
 cause the keeper has failed to take out a license. Bolte v. New Orleans, 10 
 La. An. 321, 1855. That a municipal corporation cannot annex others or 
 greater penalties than those authorized in its organic act ; that power to pun- 
 ish by " fine " is exclusive, and that it is not competent to order a forfeiture 
 in addition, see Schroder ». City Council, 3 Const. Rep. (South Car.) 736; 
 8. C, 3 Brev. 533, 1815; McMuUen v. City Council, 1 Bay (South Car.) 46; 
 Zylstra ®. Charleston, /&. 383; New Orleans ». Costello, 14 La. An. 37; Co- 
 lumbia V. Hunt, 5 Rich. 550, 558; Kennedy v. Sowden, 1 McMul. (South 
 
382 MTJNICIPAL CORPORATIONS. [Oh. XII. 
 
 by-laws should be enforced, namely, hj fine and amercia- 
 ment, or either, and it was decided that the corporation was 
 precluded from declaring 9. forfeiture of property, or from 
 inflicting any other punishment, and the doctrine of this 
 case has been everywhere followed in the courts of this 
 country. 
 
 § 274. A charter of a city specifically enumerated vari- 
 ous powers which the council was expressly authorized to 
 enforce by a penalty not exceeding one hundred dollars for 
 their violation ; and the same charter empowered the coun- 
 cil to prevent and remove encroachments upon the streets, 
 but was silent as to the imposition of penalties for a viola- 
 tion of its provisions. The council passed an ordinance 
 imposing a continuing penalty of ten dollars a day for 
 every day's failure to remove an encroachment, after notice ; 
 and it was held, and properly so, that it possessed no power 
 to impose such a penalty, but the decision was put upon the 
 ground that the specific enumeration of the powers which 
 might be rendered effectual by penal provisions was an im- 
 plied exclusion of the right to impose any penalties what- 
 ever in other cases.' 
 
 § 275. Penalty may be Within Fixed Limits. — A mu- 
 nicipal corporation, with power to pass by-laws and to affix 
 penalties, may, if not prohibited by the charter, or if the 
 penalty is not fixed by the charter, make it discretionary, 
 within fixed limits, for example, "not exceeding fifty dol- 
 lars." This enables the tribunal to adjust the penalty to 
 the circumstances of the particular case, and is just and rea- 
 sonable. The older English authorities, so far as they hold 
 
 Car.) 328; compare Crosby v. "Warren, 1 Rich. Law, 385. An ordinance 
 treated as wholly void because it fixed the minimum fine for an ofience at 
 five dollars when the law required it to be three dollars.- Petersburg -o, 
 Metzker, 21 lU. 205, 1859. 
 
 > Grand Rapids ». Hughes, 15 Mich. 54, 1866. "Whether there is such an 
 implied exclusion must depend in each case upon the supposed intention 
 of the legislature, to be gathered from a survey of the whole charter. The 
 authority to adopt an ordinance implies the right to enforce it by proper 
 pecuniai^r penalties, and this right exists unless excluded by other provis- 
 ions of the charter. 
 
Ch. xn.] POWER TO IMPOSE FINES, &0. 383 
 
 such a by-law void for uncertainty, are regarded as not 
 sound in principle, and ought not to be followed. ' 
 
 § 276. Single Offence Cannot be Made Double. — As the 
 power to pass ordinances and to punish for their violation 
 must be reasonably exercised, the corporation cannot mul- 
 tiply one offence into many, and punish for each. Thus, 
 where an authorized ordinance prohibited "any person from 
 cutting down and making use of cedar and other trees," 
 ■within a specified locality, a complaint, charging the de- 
 fendant "with having cut down a cedar tree at various 
 times, and that he continued to do so, from time to time, 
 until he had committed one hundred violations of the ordi- 
 nance, by cutting down one hundred cedar trees," was held 
 to set forth but a single offence, for, said the court, "the 
 matter charged is a trespass with a continuando, which, in 
 law,is but one offence, and it may well be that every tree cut 
 by the defendant was cut on one day, and, under the ordi- 
 nance, the cutting of more trees than one, at one time, would 
 be but one offence."" 
 
 § 277. Where there is a limitation upon the corporation 
 as to the amount of penalties to be imposed for the infrac- 
 tion of by-laws, they cannot exceed the limit directly, noi 
 can they do so indirectly by multiplying what is, in sub- 
 stance, one offence, into several, or subdividing one trans- 
 action or violation into a number of offences, and annexing 
 a penalty to each.' But where each offence is distinct, and 
 
 ' Mayor, &c. v. Phelps, 37 Ala. 55, 1855, overruling, on this point. 
 Mayor, &c. «. Tuille, 3 It. 137; compare, Commissioners ®. Harris, 7 Jones 
 (Law) 381. See, also. Piper v. Chappell, 14 Mees. & W. 633, 649, 1845 ; 
 Butchers' Co. ■». Bullock, 3 B. & Pul. 434 ; Grant on Corp. 84. In re Pen- 
 nell, &c., 34 Upper Can. Q. B. 338. A by-law fixing one penalty for the first 
 offence and a larger for the second, and a still larger one for every 'subse- 
 quent offence, does not appear to be bad for uncertainty. Butchers' Co. «. 
 Bullock, supra. Where the penalty ip fixed by by-law, it can only be 
 changed by the same authority which affixed it. Eex v. Ashwell, 13 East, 
 39; Seaming o. Conger, 3 Leon. 7; Moore, 75; Bendl. 159; Davis o. Low- 
 den, Carth. 39. A penalty fixed either by the charter or by-law is essential. 
 Bowman ». St. John, 47 111. 337 ; Ashton ». Ellsworth, 48 111. 399. Supru, 
 sees. 371, 373. 
 
 « State V. MoultrieviUe, Eice (South Car.) Law, 158, 1839. 
 
 " Mayor, &c. of New York ». Ordrenan, 13 Johns. 133, 1815 (penalty for 
 
384 MUNICIPAL COKPOBATIONS. [Ch. XIL 
 
 the pnmsliment for each is within the power of the corpora- 
 tion to impose, the punishment is not made illegal, though 
 the separate fines in the aggregate exceed the limit allowed 
 by the charter, and are imposed hy the same magistrate or 
 tribunal at one sitting.' 
 
 § 278. By its charter, the power of a city corporation 
 to impose fines for breaches of its ordinances was limited 
 to one" hundred dollars. By the*oharter the city had also 
 the power to regulate the inspection of flour, and passed an 
 ordinance by which any person selling flour without inspec- 
 tion should be fined "five dollars for each barrel so sold." 
 It was held that this ordinance, as to the penalty, was valid 
 so far as to authorize a fine not exceeding one hundred 
 dollars ; that if a single sale exceeded twenty barrels the 
 fine could be but one hundred dollars, while, if it was less 
 than twenty barrels, the fine would be five dollars on each 
 barrel. The court observed, that a recovery on a single 
 transaction where more than twenty barrels were sold, 
 would bar any future proceeding for the balance." 
 
 § 279. Fower of Forfeiture must he Expressly Con- 
 ferred. — A corporation under a general power to make by- 
 laws cannot make a by-law ordaining a, forfeiture of prop- 
 erty. To warrant the exercise of such an extraordinary 
 authority by a local and limited jurisdiction, the rule is 
 reasonably adopted that' such authority must be expressly 
 conferred by the legislature." And even if the power to 
 
 illegally keeping powder), citing and approving opinion of Lord Mansfield 
 in Crupps v. Darden, Oowp. 640. See, also, Hart «. Mayor, &c., 9 Wend. 
 671, 588, 606, 1832; Zylstra «. Charleston, 1 Bay (South Car.) 383, 1794; 
 mde Stokes v. Corporation of New York, 14 Wend. 87. 
 
 ' Heise v. Town Council, 6 Rich. (South Car.) Law, 404 (fines for vio- 
 lating Uquor ordinance) ; compare. State v. Town Council of Moultrieville, 
 
 « Chicago V. Quimby, 38 El. 374, 1865. 
 
 3 Kirk «. Nowill, 1 Term R. 118, 124, per Mansfield and BuUer, followed 
 by Court of Errors of New York, in Hart v. Mayor, &c. of Albany, 9 Wend. 
 571, 088, per Sutherland, J.; p. 605, ^e?- Edmonds, Senator; 3 Kyd on Corp. 
 110 ; Willcock on Municipal Corporations, 180, pi. 449; Angell & Ames on 
 Corp, sec. 360 ; Cotter «. Doty, 5 Ohio, 394, 1833 ; White v. Tallman, 3 
 Dutch. (N. J.) 67, 1856; PhilUps v. Allen, 41 Pa. St. 481. In further illus- 
 
Ch. Xn.] POWER TO IMPOSE PINES, &c. 385 
 
 declare a forfeiture is conferred, still no perspn can, by 
 ordinance, be deprived of Ms property by forfeiture with- 
 out notice or without legal investigation or adjudication ; 
 an ordinance in violation of this principle is void, as " con- 
 trary to the genius'of our laws and institutions."' In Eng- 
 land the power of municipal corporations to impose a for- 
 feiture for offences created by ordinances or by-laws, has 
 beeu, in many cases, sanctioned by usage, without any 
 express power in the charter to impose the forfeiture. . But 
 iu this country, inasmuch as corporations derive all their 
 power from charter or act of the legislature, the right to 
 inflict a forfeiture must be plainly given, and cannot be 
 derived from usage.' 
 
 § 280. Power to Fine does not include Power to For- 
 feit. — How strictly the courts hold that municipal corpora- 
 tions cannot pass by-laws ordaining a forfeiture is strik- 
 ingly illustrated by the case of Heise v. The Town Council 
 of Columbia. The town council had power to enforce 
 obedience to their ordinances " ty fine, not exceeding fifty 
 dollars." Special authority was given to municipal corpo- 
 rations to grant Mcehses to retail liquor. The council passed 
 an ordinance relating to this subject, the penalty for violat- 
 ing which was a "fine of not more than fifty dollars for 
 each offence, and also a forfeiture of the license.^'' It was 
 held tha.t the license which was granted and paid for was, 
 essentially, property ; that the council could only impose 
 fines, and that it had no power to ordain a forfeiture of the 
 license, there being (in the opinion of the court) no differ- 
 ence between the forfeiture of a license and of goods and 
 chattels;" 
 
 tratipn, see Mayor, &c. ■». Ordrenan, 13 Johns. 133 ; Phillips a. AUen, 41 
 Pa. St. 481 ; Dunham v. Eochester, 5 Oowen, 463, 1836 ; Baxter ». Common- 
 ■wealth, 3 Pa. (Pen. & W.) 253; Bergen t. Clarkson, 1 Halst. (K. J.) 353; 
 Taylor n. Carondelet (forfeiture of lease), 33 Mo. 105, 112; Mayor, &c. of 
 Mobile «. Yuille, 3 Ala. 137, 1841. 
 
 'Cotter B. Doty, 5 Ohio, 384, 398; Rosebaugh «. SaflBn,. 10 Ohio, 83, 
 1840. 
 
 = Taylor v. Carondelet, 33 Mo. 105, 113; Kirk «. No-will, 1 Term R. 118; 
 Adiey ■». Reves, 1 Maule and Sel. 60. 
 
 " Heise v. Town Council, &c., 6 Rich. (South Car,) Law, 404,. 1853. 
 25 
 
B86 MUNICIPAL COKPORATIONS. [Ch. XH, 
 
 § 281. Judicial Procedure Necessary in some Instances. 
 — An ordinance of the city of New Orleans authorizing, 
 without any prior judicial proceedings, a sale, under the 
 orders of the mayor, of all property suffered to remain on 
 the levee beyond a specified period, is invalid, since it makes 
 the corporation judges and parties in the same cause, and 
 enforces a forfeiture and divests the owner of his property 
 without a trial in due course of law. Such a power is -not 
 similar to that exercised by a« corporation in removing 
 nuisances, as that power arises from necessity and ceases 
 with that necessity. It would be competent for the corpo- 
 ration to ordain that the property should be removed at the 
 expense of the proprietor, and to recover these expenses, 
 and any fine which niight be imposed, by judicial proceed- 
 ings.' 
 
 § 282. Forfeiture of Animals at Large. — The right to 
 denounce a forfeiture against animals running at large in a 
 town or city contrary to the provisions of ordinances for- 
 bidding it, must be plainly conferred or it well not be held 
 to exist. This is in accordance with the rule of the English 
 courts, that a statute will not be taken to invest, by impli- 
 cation, a municipal corporation with the extraordinary 
 powers of forfeiting the property of the subject, and that, if 
 it be intended that any such power shall be given, it must 
 be by express words to that effect. The cases agree in hold- 
 ing that when the power to denounce the forfeiture against 
 such animals is given, there should be either notice, actual 
 or constructive, or prior legal proceedings. The view of 
 the courts will be best understood by referring to some of 
 the cases upon the subject. In Mississippi, an ordinance au- 
 
 * Lanfear ». Mayor, 4 La. 97, 1831. Compare with Guillott'e ». New 
 Orleans, 13 La. An. 433, 1857, in which it was held that an ordinance pro- 
 viding a forfeiture, for the use of the city workhouse, of bread illegally 
 baked in violation of an authorized by-law of the corporation, is not contrarj 
 to a consitutional provision declaring that vested rights shall not be di- 
 vested unless for purposes of public utility and for adequate compensation 
 previously made. It may be observed, that the court, without any special 
 discussion, assumed that power "to regulate everything which relates to 
 bakers " gave authority to denounce a forfeiture of bread baked contrary 
 to the provisions of the ordinance -of the city. See, on this point, Mayor, 
 &c. of Mobile n. Yuille, 3 Ala. 137, 1841. 
 
Ch. Xn.] POWER TO IMPOSE FINES, &o. 387 
 
 thoriziug the seizure and sale of hogs running at large, 
 without notice or trial, or opportunity for trial, and pro- 
 viding that one-half of the proceeds of the sales should go 
 to the hospital and the other half to the city marshal, was 
 ■held to be in violation of the constitutional provision that 
 no person "can be deprived of his property but by due 
 course o| law," and securing right to a jury trial.' 
 
 § 283. In a similar case in Ohio, OrimTce, J., delivering 
 opinion of the court, observes : ' ' The ordinance commands 
 the marshal to seize and impound the hogs, and then, with- 
 out any reserve, without any notice, by means of which the 
 owner might be able to exculpate himself, directs them to 
 be sold and the proceeds placed in the city treasury. Such 
 an ordinance is as contrary to the spirit of the charter (Cin- 
 cinnati) as it is alien from the general genius of our institu- 
 tions." ° 
 
 § 284. In North Carolina the general principle was de- 
 clared that an ordinance of an incorporated town which 
 authorizes the property of one man to be taken from Mm 
 and given to another, without any notice to the owner or 
 trial of his rights, was unlawful. The town authorities, un- 
 der power given to make ordinances for the removal of 
 nuisances and for the good government of the town, passed 
 an ordinance to this effect : " That every hog at large in the 
 said town shall be taken up and penned, and advertised to 
 be sold on the third day, and unless the owner should pay 
 the charges (specified in the ordinance) for taking up and 
 keeping such hog, and a sale is effected, the money arising 
 therefrom, aft;er paying the charges, shall be paid over to 
 
 Donovan v. Vicksburg, 39 Miss. (7 Cush.) 247, 1855. Power to impose 
 penalties on the owners of animals running at large excludes, by implica- 
 tion, the power to enforce a by-law upon the subject in any other way, as, 
 for example, by a sale of the animals found at large. Miles ». Chamberlain, 
 17 Wis. 446, 1863. Swpra, sees. 372, 373. 
 
 = Rosebaagh ®. Baffin, 10 Ohio, 33, 37, 1840. However it may be when 
 the power to forfeit without notice or prior legal proceedings is explicitly 
 conferred, it is clear that the power, unless plainly and expressly given, can- 
 not be exercised without such noti'ce and previous adjudication; but with 
 these the remedy may, if needful, be " prompt and strong." Cincinnati « 
 Buckingham, 10 Ohio, 257, 26'i, per Lane, C. J. 
 
388 MlTNICrPAL CORPORATIONS. [Oh. XH. 
 
 the owner of the said hog." The validity of this ordinance 
 was drawn in question, and two points were ruled by the 
 Supreme Court: 1. That the ordinance was reasonable, and 
 the corporation, under the power above referred to, had au- 
 thority to pass it. 2. That it suflSciently provided for- 
 notice to the owner by the impounding of the animal and 
 the three days' public advertisement, and that personal 
 notice was not necessary.' In a subsequent case in the same 
 "ourt a similar ordinance was ^stained. It was objected 
 that it was invalid, because it provided for no judicial 
 decision condemning the property to be sold. This objec- 
 tion the court regarded as insufficient, "since the owner 
 may, if he choose, have a full investigation of the case by 
 bringing an action of replevin, as in any other case of 
 distress.'" 
 
 § 385. In South Carolina it has been held, that under 
 authority to enforce by-laws by fine, an ordinance, other- 
 wise legal, which authorized the marshal to kill hogs run- 
 ning at large, contrary to the ordinance, and appropriate 
 them to his own use, was void.' 
 
 • Shaw V. Kennedy (North Oar.) Term R. 158, 1817; Helen s. Noe, 3 
 Ire. (Law) 493, 1848. 
 
 " Whitfield ®. Longest, 6 Ire. (Law) 168, 1846. In Iowa a similar ordi- 
 nance was sustained. Grooselink v. Campbell, 4 Iowa, 396, 1856 ; Ooniyra, 
 Willis «. Legris, 45 111. 389,1867; Bullock ®. Geomble, Ih. 318; Poppen 
 e. Holmes, 44 lU. 360. But see Hart ®. Mayor, &c. of Albany, 9 Wend. 
 571, 1883; White®. Tallman, 3 Dutch. (N. J.) 67, 1856; Phillips «, Allen, 
 41 Pa. St. 481. Power must be strictly pursued or the sale will be void, 
 and the officer a trespasser. Clark ®. Lewis, 35 111. 417. Sale is void where 
 two animals, belonging to different owners, are sold at once. J5. Ante, 
 sec. 101. 
 
 ' McRae «. O'Lain, cited Kennedy r>. Sowden, 1 McMuUen (South Car.) 
 Law, 338. But authority to impose '■'■fines and pe^nalties " authorizes a fine 
 against those who violate the ordinance forbidding hogs running at large, 
 an3l the seizure, impounding, and sale (upon notice) of the animals to pay 
 the fine, whether they belong to residents or non-residents. Kennedy v. 
 Sowden supra; S. P. Crosby v. Warren, 1 Rich. (South Car.) Law, 385, 
 1845, Wardlaw, J., dissenting; McKee v. JfoKee, 8 B. Mon. 433, 1848. But 
 it seems doubtful, upon the principles adopted in the construction of 
 powers of this character, whether authority to Impose fines and penalties 
 extends any further than to the imposition of peawnia/ry fines and, penalties. 
 See Mayor of Mobile «. Tuille, 3 Ala. 137; White v. Tallman, 3 Dutch. 
 (N. J.) 67, 1856. The power to forfeit, like the power to tax, should be 
 
Ch. Xn.J POWER TO IMPOSE PINES, &o. 389 
 
 § 286, Equity will not Ordinarily Helieve against 
 Valid Forfeitures. — A forfeiture imposed by a municipal 
 corporation, under legislative authority, for a violation of a 
 valid by-law, and inflicted as a penalty for such violation, 
 cannot be relieved against in equity, unless, perhaps, where 
 peculiar circumstances furnish grounds for equitable inter- 
 position, the general doctrine being that equity may relieve 
 against forfeitures declared by contract, but not against 
 those expressly declared or authorized by statute," 
 
 § 387. Power to Miforce iy Imprisonment must be Ex- 
 pressly Given. — In this country it is not unusual to provide, 
 in the organic act of municipal corporations, that if fines 
 for violation of by-laws or ordinances are not paid, the 
 oflfender may be committed to prison for a limited period. 
 And, in respect to some offences public in their character, 
 the power to imprison in the first instance is often con- 
 ferred." It is scarcely necessary to add, that unless the 
 authority be plainly given it does not exist, and when given, 
 before it can be exercised there must be a judicial ascertain- 
 ment by a competent tribunal or magistrate of the guilt of 
 the party." 
 
 given either expressly, or, at all .events, by neeeasa/ry implication. And it 
 has been held, that it cannot be implied from the power " to impose reason- 
 able fines," and to cause "all such fines and all such forfeitures and 
 penalties as may be incurred under the laws and ordinances of the cor- 
 poration to be assessed, levied, and collected." Cotter v. Doty, 5 Ohio, 
 395, 1833. 
 
 ' Taylor v. Carondelet, 22 Mo. 105 (forfeiture clause in lease) ; Peachy 
 0. Somerset, 1 Str. 447 ; Gorman v. Low, 3 Edw. Oh. 334 ; Keating ». Spar- 
 row, 1 Ball & Beat. 367 ; State v. Railroad Company, 8 How. (IT. S.) 534. 
 
 " Barter v. Commonwealth, 3 Pa. (Pen. & W.) '353, 1831 ; New Orleans 
 V. Costello, 14 La. An. 37; Burlington ■». Kellar, 18 Iowa, 59; London ». 
 "Wood, 13 Mod. 686 ; Bab «. Clerke, Moore, 411 ; Clarke's Case, 5 Co. 64 : 1 
 Roll. Abr. 364 ; Com. Dig. By-law, E, 1 ; Chilton v. Railway Company, 
 16 M. & W. 213; King v. Merchant Tailors' Company, 3 Lev. 200. 
 
 ' McpaHe Burnett, 30 Ala. 461, 1857. Pines for the violation of ordi- 
 nances, held under special charter provisions, collectible by commitment of 
 the persons or by fieri facias. Huddleson «. Ruffin, 6 Ohio St. 604. Au- 
 thority to enforce penalties for violations of ordinances by " distress and 
 tale " of property must be expressly or plainly granted. White ®. Tallman, 
 2 Dutch. (N. J.) 67, 1856; Bergen v. Clarkson, 1 Halst. (N. J.) 67. And 
 in England, likewise, such a power cannot be conferred by the crown, and 
 
390 MUOTCIPAL COEPORATIONS. [Ch. XTL 
 
 " On Whom Ordinances are Binding, and Who must 
 Notice them. 
 
 § 288. Who Bound.— la England the by-laws of a 
 municipal corporation bind not only the members, but, if 
 they are general in their nature and purposes, and not 
 limited to any particular class or description, but intended to 
 extend to all persons coming witllin the local jurisdiction of 
 the corporation, they bind all, whether members or strangers, 
 and all must take notice of them at their peril. And by- 
 laws made by a municipal corporation with respect to a 
 liberty or franchise granted them, with local jurisdiction 
 beyond the limits of the municipality, are as binding upon 
 persons going into the liberty as the by-laws of the city 
 upon those who come within its walls.' 
 
 § 289. So, also, in this country it is settled that valid 
 ordinances bind not only the inhabitants of the corporation, 
 but also strangers or non-residents coming within its 
 limits. These, for the time being, are regarded as inhabit- 
 ants, and liable in the same manner for violations of ordi- 
 nances." So far is plain. But suppose a person living with- 
 
 can only exist by authority of parliament or a special custom. Clarke ». 
 Tucker.'s Lev. 281; 8. C, 2 Vent. 183; Lee ®. "Walls, 1 Keny. Cas. 295; 
 Sayer, 263; Adley«. Reeves, 2 Maule & Sel. 60; Willc. 179; Glover, 311. 
 
 ' Willc. 105, 107; Glover, 289, 290; London®. Vanacker, 1 Ld. Raym. 
 498 ; Salk. 142 ; Pierce ®. Bartram, Cowp. 270 ; Fazakerley v. Weltshire, 1 
 Stra. 462; Kirk ®. Nowill, 1 Term R. 118; Butcher Co. t. Mercy, 1 H. Bl. 
 370. Bo not bind beyond limits of authorized jurisdiction. See 3 Mod. 
 158; T. Jones, 144; 2 Brownl. 177; Hob. 211; Hutt. 6; 11 Rep. 58; Godb. 
 352. An ordinance passed in 1834, prohibiting the erection of "stables, &c. 
 in the interior of the city of New Orleans, or any of its incorporated sub- 
 urbs," held not to extend to the city of Lafayette, subsequently added, by 
 act of the legislature, to the city of New Orleans. New Orleans ®. Ander- 
 son, 9 La. An. 323, 1854. 
 
 « Heland v. Lowell, 3 Allen, 407, 1862; Whitfield «. Longest, 6 L-e.(LaW 
 268, 1846; approving Pierce v. Bai-tram, Cowp. 269. See, also, Buffalo®. 
 Webster, 10 Wend. 99; Commissioners of Wilmington ®. Roby, 8 Ire. (Law) 
 250 ; Commissioners of Plymouth -o. Pettijohn, 4 Dev. (Law) 591 ; Strauss «. 
 Pontiac, 40 111. 301, 1866 ; City Council v. Pepper, 1 Rich. ^8. Car.) Law, 
 364, 1845; City Council v. King, 4 McOord (S. Car.) 487; Marietta ». Fear- 
 ing, 4 Ohio, 427, 1881 ; Dodge s. Gridley, 10 Ohio, 173 ; Homey b. Sloan, 1 
 Smith (Ind.) 186 ; Kennedy ». Sowden, 1 McMuUen, 323, 
 
Ch. Xn.] ON "WHOM ORDOTANCES ARE BINDINa. 391 
 
 out the limits of the corporation suffers "his cattle or prop- 
 erty to stray into it and violate its ordinances. Here two 
 questions may arise : 1st. Can such property, being within 
 the corporation, be dealt with the same as if it belonged to 
 an inhabitant of the corporation? It is held that it can.' 
 2d. Can such non-resident owner be made amenable per- 
 sonally to a penalty to the corporation? In other words, 
 has a corporation power, unless expressly conferred, to pro- 
 vide for collecting a penalty from a non-resident who suffers 
 his property to violate an ordinance, but who himself was, 
 at the time, without the corporate limits? This remains, 
 perhaps, to be settled, though it is certain that ordinances 
 will not be construed to extend to persons living without the 
 corporation and not being within it, unless such an intention 
 plainly appears." 
 
 § 290. Notice. — All persons upon whom ordinances are 
 binding are bound to take notice of them." But where a 
 party is liable to a penalty if he does not do a given act 
 upon notice, a newspaper notice is not sufficient, unless that 
 mode is pointed out by the law or general power is given to 
 
 ' Whitfield B. Longest, 6 Iredell (Law), 368, 1846; Gosselink®. Campbell, 
 4 Iowa, 396, 300, 1856 ; Reed ». People, 1 Park. Or. Rep. 481. 
 
 ' Plymouth «. Pettijohn, 4 Dev. (Law) 591. Inability to pimish non- 
 resident owner criminally in respect to property within corporate limits, see 
 Reed ®, People, 1 Park Cr. Rep. 481. Power "to make such prudential 
 rules and tegulations as may seem necessary for the better improving of the 
 common lands of a, town," &c., extends only to regulations as between those 
 who have the right to enjoy them in common, but does not confer the power 
 of imposing a penalty for trespasses hy strangers ; for such acts the town 
 must pursue its common law remedy. Foster b. Rhoads, 19 Johns. (N. Y.) 
 191, 1831. See, also. People ». Works, 7 Wend. 486; Holladay «. Marsh, 3 
 Wend. 143. Ordinances cannot have an extra-territorial effect, unless the 
 power be plainly conferred upon the corporation. Strauss v. Pontiac (liquor 
 ordinance), 40 111. 301, 1866 ; GosselinkB. Campbell, 4 Iowa, 396. Whether 
 a party resides within the limits embraced by an ordinance, is a question of 
 fact. Board ». Pooley, 11 La. An. 743; Police Jury ®. Villaviabo, 13 i6. 
 788 ; New Orleans v. Boudu, 14 Ti. 303. 
 
 " Palmyra v. Morton (sidewalk ordinance), 35 Mo. 593, 1860 ; Buffalo v. 
 Webster, 10 Wend. 99, 1833. See Reed v. People, 1 Park. Cr. Rep. 481; 
 City of London v. Vanacre, 13 Mod. 370, 373; Glover on Corp. 307, 390- 
 post, sees. 471, 643. 
 
392 MUNICIPAL CORPORATIONS. [Ch. XH, 
 
 the corporation embracing witliin it the authority to pre- 
 scribe the kind and manner of notice.' 
 
 Ordinances Relating to the Licensing, Regulation, and 
 Taxing of Amusements and Occupations, In- 
 cluding the Sale of Intoxicating Liquors. 
 
 % 291. Nature of License Pom (?r]— Charters not nnfre- 
 quently confer upon the corporafton the power " to license 
 and regulate," or to "license, regulate, and tax," certain 
 avocations and employments, and to " tax and restrain" or 
 "prohibit" exhibitions, shows, places of amusement, and 
 the like ; and unless there is some specific limitation on the 
 authority of the legislature in this respect, such provisions 
 are constitutional." Concerning useful trades and employ- 
 
 ' Kecteley v. Commissioners of Roads, 4 McOord (8. Car.) 357, 1838. 
 
 ' City «. Clutch, 6 Iowa, S46, 1858. In Mayor, &c. of Mobile ». Yuille, 3 
 Ala. 137, 1841, it was determined that there was nothing in the constitu- 
 tion of the state which would invalidate a grant of power to a municipal 
 corporation "to license haters, and regulate the weight and price of Iread, and 
 to prohibit the baking, for sale, except by those licensed." Such a grant of 
 power does not unlawfully interfere with the right of citizens to pursue 
 their lawful occupations. In the City of Boston ». Schaffer, 9 Pick. 415, 
 1830, it was decided that it is competent for the legislature to grant a city 
 or town power to require the payment of money as the condition of exer- 
 cising particular employments, e. g. giving theatrical or other exhibitions. 
 This is not in the nature of a tax, which must be general, but of an excise 
 on special vocations. Approved, Cincinnati e. Bryson, 15 Ohio, 635 ; New 
 Orleans v. Turpin (auctioneers), 13 La. An. 56, 1858 ; Municipality «. Dubois 
 (livery stable keeper), 10 11. 56; Charity Hospital «. Stickney, 3 La. An. 
 550; Slaughter v. Commonwealth, 13 Gratt. (Va.) 967; Carrol a. Mayor, &c., 
 13 Ala. 173; Merriam ii. New Orleans, 14 La. An. 318; Wynne v. Wright, 1 
 Dev. &B. (N. Car) Law, 19; The Mayor, &c. v. Hartridge, 8 Geo. 33; Cin- 
 cinnati «. Bryson, 15 Ohio, 635, dissenting opinion of Surehard. J. ; Collins 
 «. Louisville, 3 B. Mon. (Ky.) 133; The Germania «. State, 7 Md. 1; The 
 States. Roberts, 11 Gill & Johns. (Md.) 506; Sears®. West,l Murph. (N. 
 Car.) 391 ; People v. Thurber, 13 111. 557 ; Savannah v. Charlton, 36 Geo. 
 460, 1867. Ptst, sees. 634, 630 ; see chapter on Taxation, post: Ante, sec. 
 79. Kniper ». Louisville, 7 Bush (Ky.) 599. 
 
 These cases show some diversity of opinion as to the right to tax partic- 
 ular employments as distinguished from property ; but the correct view, it is 
 submitted, is this: Unless specially restrained by the constitution, the leg- 
 islature may provide for the taxing of any occupation or trade ; and may 
 confer this power upon municipal corporations. But such taxes are apt to 
 
Ch. Xn.] ORDINANCES LICENSING AMUSEMENTS, &o. 393 
 
 ments, a distinction is to be observed between the power to 
 "license " and the power to "tax." In such cases the for- 
 mer right, unless such appears to have been the legislative 
 intent, does not give the authority to prohibit, or to use the 
 license as a mode of taxation, with a view to revenue, but a 
 reasonable fee for the license and the labor attending its 
 issue may be charged. Respecting amusements, exhibi- 
 tions, &c., the authority of the corporation under the power 
 to license has been regarded as greater than when the same 
 word is employed as to trades and occupations.' Words of 
 this character, however, do not always have exactly the 
 satae meaning, and the intention of the legislature in using 
 them must often be gathered from the whole charter and the 
 general legislation of the state respecting the subject matter. 
 
 § 292. In harmony with the foregoing principles, it has 
 been held that, under authority "to license and regulate" 
 
 be inequitable and the principle not free from danger of great abuse. Hence 
 ordinances of this character ought not to be sustained, unless the authority 
 be expressly or otherwise unequivocally conferred. 
 
 ' Ash «!. People, 11 Mich. 347; ante, p. 198, sec. 79; Freeholders v. Bar- 
 ber, 2 Halst. 64; Carroll v. Tuscaloosa, 12 Ala. (N. S.) 173; Greensboro v. 
 Mullins, 13 lb. 341; State v. Roberts, 11 Gill & Johns. 506; City Council v. 
 Ahrens, 4 Strob. 241 ; Kip n. Patterson, 2 Dutch. 298 ; Portland v. O'Neill, 
 1 Ire. 218; Bennett v. Birmingham, 31 Pa. St. 15; Commonwealth v. Stod- 
 der, 2 Cush. 562 ; Day v. Green, 4 Cush. 433 ; Dunham ». Rochester, 5 Cow. 
 463; Lawrenceburg v. West, 16 Ind. 337; Cheney v. Shelbyville, 18 Ind. 
 84 ; Bennett d. People, 30 111. 389 ; East St. Louis v. Wehrung, 46 111. 392 ; 
 Savannah v. Charlton, 36 Geo. 460. Post, chap. XIX. 
 
 Distinction between taxation and police regulation well stated by Depue, 
 J., in State ». doboken, 33 N. J. Law, 280, 1869; Commonwealth v. Mark- 
 ham, 7 Bush, 486, 1870. Post, sec. 609. feee, also, Kip v. Patterson, 2 
 Dutch. (N. J.) 298; Mayor v. Avenue Railroad Company, 32 N. Y. 261; 33 
 n. 42, distinguished. and questioned in Prankford Railway Company ». 
 Philadelphia, 58 Pa. St. 119, 1868; Johnson v. Philadelphia, 60 Pa. St. 445; 
 Freeholders v. Barber, 3 Halst. (N. J.) 64. Diflference between tax and a 
 license to exercise particular callings upon making pecuniary compensation 
 for the privilege. People ®. Thurber, 13 III. 557; Mount Carmel v. "Wabash 
 Co., 50 111. 69; Kniper ■». Louisville, 7 Bush, 599. Smith «. City of Madi- 
 son, 7 Ind. 86, 1855, so far as it holds that authority " to suppress and re- 
 strain " bowling saloons confers the power to license and tax them, cannot, 
 as it seems to us, be sustained. Mayor, Ac. ■». Beasley, 1 Humph. (Tenn.) 
 240, holds that power in a charter to regulate and restrain tippling houses 
 did not confer 'the power to tax them. 
 
394 MTINICIPAL CORPORATIONS. [Oh. XH. 
 
 draymen, &c., a municipal corporation may, by ordinance, 
 require a license to be first taken out, and charge a reason- 
 able snm for issuing the same and keeping the necessary 
 record, but cannot, by virtue of this authority, without 
 more, levy a tax upon the occupation itself ; and, under the 
 power to regulate, it may make proper police regulations as 
 to the mode in which the employment shall be exercised.' 
 
 § 293. So authority to a city to adopt rules and orders 
 "for the due regulation of omnibuses, stages, &c.," was 
 
 ' Cincinnati v. Bryson, 15 Ohio, 635, 1846. Af to correctness of applica- 
 tion of the principle of law to the facts, qucere. Consult, in connection with 
 the above case. Mays ii. Cincinnati, 1 Ohio St. 268, 1853 ; with which com- 
 pare, Cincinnati v. Buckingham, 10 Ohio, 361 ; and see cases cited supra, 
 sec. 391. An act to regulate and license the keeping of dogs, was regarded as 
 an exercise of the police, and not the taxing power of the state, and not to 
 be within the constitutional provision requiring uniformity of taxation. 
 Carter «. Dow, 16 Wis. 398, 1863 ; Tenney ®. Lenz, lb. 566. In the case last 
 cited, Paine, J., observes: "We cannot assent to the position that, if the 
 sum required for a license exceeds the expense of issuing it, the act tran- 
 scends the licensing power, and imposes a tax. By such a theory the police 
 power would be shorn of all efficiency. . . . We have no doubt, there- 
 fore, that the legislature may, in regulating any matter that is a proper sub- 
 ject of the police power, impose such sums for licenses as will operate as 
 partial restrictions upon the business, or upon the keeping of the particular 
 kinds of property regulated." See, also. Fire Department «. Helfenstein, 16 
 Wis. 136. Ante, sec. 93. Post, sec. 609. 
 
 In Ash B. People, 11 Mich. 347, 1863, it appeared that, by its charter, 
 authority was given to a city to erect, establish, and regulate markets and 
 market places, and to license and regulate butchers and shop-keepers at any 
 other place in the city, for the sale of meats, &c. and to authorize the mayor 
 to grant such licenses and to prescribe the sum of money to IJB paid into the 
 treasury of the city therefor. An ordinance prohibiting the keeping of 
 meat shops outside of the public markets without a license, and requiring 
 the payment of a license fee of five dollars, was sustained, although the 
 amount exceeded the expense of making and registering the license. The 
 court denied that the fee demanded was a tax, and regarded it as but a rea- 
 sonable compensation for the additional expense of municipal supervision 
 over the business at the place licensed. A ferry license fee of fifty dollars 
 was held not to be a tax, within the meaning of the term, as used in the 
 constitution of Michigan and t'he charter of the city of Detroit Chilvers ®. 
 People, 11 Mich. 48, 1863; ante, sec. 79. "The power to license and reg- 
 ulate carries with it the right to require the payment of a [reasonable] suii 
 in consideration of the license." Per Wright, J., in State v. Herod, 39 Iowa, 
 133, 1870. Post, chap. XIX. sec. 609. 
 
Ch. Xn.] OKDINANCES LICENSING AMUSEMENTS, &o. 396 
 
 held not to autliorize the adoption of an ordinance requiring 
 the payment of a tax, or duty, on each carriage licensed, 
 varying from one to twenty dollars, according to the 
 different kinds of carriages, and the stands occupied. This 
 was regarded as a direct tax upon the vehicle used, or its 
 owner, and not necessary to secure the objects of the above 
 grant of power to the city.' So where under an act author- 
 izing the trustees of a village corporation to make ordinances 
 "in relation to hucksters, and for the good government of 
 the village," it was held that an ordinance was unauthor- 
 ized which required that hucksters should, before exercising 
 their employment, take a license, and be taxed a sum 
 varying from five to thirty dollars." 
 
 § 294. On the other hand the power to "license, regu- 
 late, and restrain amusements," it was admitted or taken 
 for granted would authorize an ordinance taxing, or re- 
 quiring exhibitors to pay a specific sum for the privilege, 
 this being considered as a means of regulating and restrain- 
 ing them.' So a grant of power to a city or town to license 
 
 • Commonwealth v. Stodder, 2 Cush. 562, 572, 1848 ; distinguished from 
 Boston B. Schaffer, 9 Pick. 415, as to licenses for theatrical exhibitions. 
 Power to the city council of Charleston to make inter alia, ' ' such ordi- 
 nances respecting streets, carriages, wagons, carts, drays, &c. as to them 
 shall seem expedient and necessary," was held to authorize an ordinance 
 requiring all persons who drive for hire any cart, dray, wagon, or omnibus, 
 within the city, to take out a license, and to require the vehicle to be num- 
 bered, or on failure to do so to pay a fine. City Council v. Pepper, 1 Kich. 
 (South Car.) Law, 364, 1845. A similar ordinance, and imposing annual 
 charge on each car of a street railway company, was sustained as a police 
 regulation. Frankford Railway Company «. Philadelphia, 58 Pa. St. 119, 
 1868; S. P. Johnson ®. Philadelphia, 69 Pa. St. 445. Contra, Mayor v. 
 Avenue Railroad Company, 32 N. T. 361. Power to license, tax and regu- 
 late horse railroads, hackney carriages, <fcc. does not extend to taxation of 
 private vehicles used by a merchant or manufacturer. St. Louis ». Grove, 46 
 Mo. 574, 1870.« 
 
 ' Dunham v. Rochester, 5 Cowen, 462, 466, 1826. See further, Index, 
 Markets. 
 
 ' Hodges V. Mayor, 3 Humph. (Tenn.) 61. See also, Carter v. Dow, 16 
 Wis. 299 ; Tenny v. Lenz, i b. 567. Speaking of this subject, Mr. Justice 
 Oooley expresses it as his opinion that, where the right to impose license 
 fees to operate as a restriction upon the business or thing licensed can be 
 fairly deduced from the taxing power conferred upon the corporation, it 
 
398 MUNICIPAL CORPORATIONS. [Ch. XH. 
 
 exMbitions "on such terms and conditions as to it may 
 seem just and reasonable," authorizes it to exact money for 
 the license ; it is not confined to regulating time and place, 
 establishing police regulations, &o.' 
 
 § 295. UigM must he plainly Oonf erred.— ENen the 
 right to license must be plainly conferred, or it will not be 
 held to exist. Thus, power to make "by-laws relative to 
 hucksters, grocers, and victualliag shops," does not au 
 thorize the corporation to exact a license from persons 
 carrying on such business. Nor does the general power 
 to pass prudential by-laws, not inconsistent with the laws 
 of the state, confer the authority to demand a license." 
 
 § 396. Monopolies invalid. — The power to license and 
 regulate a lawful and necessary business will not give the 
 
 should be done, rather than to derive .the right solely from the power to 
 regulate. Const. Lira. 303, note. 
 
 ' Boston V. Schaffer, 9 Pick. 415, 1830; distinguished from Common- 
 wealth «. Stodder, 3 Gush. 563, 572, 1848. 
 
 ' Dunham v. Rochester, 5 Cow. 463, 1836; Commonwealth v. Stodder, 3 
 Cush. 563, 1848; Mays ». Oincinaati, 1 Ohio St. 368, 1853; Gale o. Kala- 
 mazoo (market house contract), 33 Mich. 344, 1871. By-laws requiring a 
 license, which may be so heavy as to amount to a prohibition, were justly 
 considered to be in restraint of trade, which the general law favors, and in 
 this case were adjudged void, " both for want of jurisdiction " in the cor- 
 poration to pass them, and for want of "conformity to the general law." 
 1 Ohio St. 308. Where the charter gave the corporation the power "to 
 license bakers, and to prohibit sales of bread except by those licensed," the 
 court doubted whether under this, aside from the taxing power of the cor- 
 poration, an ordinance could be supported which required twenty dollars 
 to be paid by the baker for a license, although it admitted that the corpora- 
 tion could require a fee for issuing and registering the license. Mayor, &c. 
 of Mobile s. Tmlle, 3 Ala. 187, 1841. Statutory conditions precedent must 
 be complied with to make a license valid ; and licenses are generally con- 
 sidered personal, ceasing with the life of the license, and not transferable 
 without consent. Munsell n. Temple (grocery license), 3 Gilm. (111.) 96 ; 
 Lewis ®. United States, Morris (Iowa) 199; Lombard v. Cheever (ferry 
 license), I-h. 473; Brunette e. Mayor, 9 La. 430. As to power to revoke 
 licenses: Towns v. Tallahassee, 11 Plor. 180, 1866. " Junk Shops," defined 
 by 0''Neall, C. J., "to be a place where odds and ends are purchased or 
 Bold," and cities are often empowered to exact a license from keeper^ 
 thereof. City Council b. Goldsmith, 13 Rich. (South Car.) Law, 470, 1860. 
 Shows defined : McKee v. Town Council, Rice (South Car.) Law, 34. Licensed 
 auctioneer held not liable to the payment of a pawnbroker's license, under a 
 city ordinance. Hunt e. Philadelphia, 35 Pa. St. 377. 
 
Ch. Xn.] ORDINANCES LICENSING AMUSEMENTS, &o. 397 
 
 corporation the power to make contracts wMcli create, or 
 tend to create, a monopoly." 
 
 § 297. Intoxicating liquors. — The authority of muni- 
 cipalities to license, tax, restrain, or prohibit the traffic in, 
 or sale of, intoxicating liquors, is so differently conferred, 
 and so lp.rgely influenced by the general legislation and 
 policy of the State on the subject, that the decisions relat- 
 ing to it are mostly of local application. Sometimes the 
 State laws are manifestly intended to repeal or modify prior 
 special charter provisions, which gave the control of the 
 matter to the local authorities •' and at other times incorpor- 
 ated places have, by the course of legislation, been excepted 
 from the general operation of the State laws, and have been 
 allowed to license, regulate, or prohibit the traffic, as they 
 deemed best." 
 
 • Chicago c. Rumpff, 45 HI. 90, 1867. In this case, nnder a power 
 granted to city, in its charter, to regulate and license the slaughtering of 
 animals within the corporate limits, the common council passed an ordi- 
 nance, whereby a particular building was designated for the slaughtering of 
 all animals intended for sale or consumption in the city, the owners of 
 which were granted the exclusive right, for a specified period, to have all 
 such animals slaughtered at their establishment, they to be paid a specific 
 sum for the privilege by all persons exercising it, and to have the option of 
 accepting such proposition, but which was not to take effect until they ex- 
 ecuted a certain bond therein required ; and it was held that this action of 
 the corporate authorities could not be regarded as regulating or licensing 
 the business, but was simply a conditional proposition, which, if accepted, 
 would constitute a contract. It was also held that this contract tended to 
 create a monopoly, and was therefore void. And the opinion was expressed 
 that under the charter, authority was conferred simply to puss ordinances 
 to locate and construct, and to regulate, license, restrain, abate, or prohibit, 
 slaughtering establishments within the prescribed limits ; and to that end 
 the corporate authorities may so regulate the business as to prohibit its ex- 
 ercise, except in a particular place; but the spot so designated must be 
 open to the enjoyment of all persons alike, upon the same terms and condi- 
 tions. A monopoly cannot be implied, but must rest upon express grant. 
 Canal Company «. EaUroad Company, H Leigh (Va.) 43, per Tucker, Presi- 
 dent; Gale V. Kalamazoo, 33 Mich. 344, 1871, in which the opinion of 
 GooUy, J., will be found to be highly instructive. Post, chap. XVIII. as to 
 gas companies. Post, sec. 318, note. 
 
 " State v. Harris, 10 Iowa, 441 ; Burlington v. Kellar, 18 Iowa, 59 ; Ham- 
 mond t. Haines, 35 Md. 541. 
 
 ■ Peidue V. Ellis, 18 Geo. 586; Trustees v. Keeting, 4 Denio, 341. Con- 
 
398 MUNICIPAL C0RP0EATI0N8. [Ch. XH. 
 
 § 298. Where there are general laws of the State re- 
 specting the sale of intoxicating liquors, a public coi-pora- 
 tion, by virtue of a general power " to make all hy-laws 
 that may be necessary to preserve the peace, good order, 
 and internal police " therein, is not not authorized to pass 
 an ordinance recLuiring a corporate license, and punish- 
 ing persons who sell such liquors without being thus li- 
 censed.' 
 
 § 299. In the absence, however, of controlling general 
 legislation, power to a city to pass " in general, every other 
 by-law or regulation that shall appear to the dty council 
 requisite and necessary for the security, welfare,, and conve- 
 nience of the city, or for preserving the peace, order, and 
 good government within the same," was held to authorize 
 an ordinance (and the same is constitutional) to prevent 
 shopkeepers, unless licensed by the city, from keeping 
 
 stniction of charters in connection with state laws on the subject. Town 
 Councils. Harbers, 6 Rich. (South. Gar.) Law, 96; Ih. 404; States. Esta- 
 brook, 6 Ala. 653; West v. Greenville, 39 Ala. 69; Adams «. Mayor, 39 Geo. 
 56; Chaslain ®. Town Council, 29 Geo. 333; Cuthbert b. Conley, 32 Geo. 
 211; States. Garlock, 14 Iowa, 444; Harris s. Intendant, &c., 28 Ala. 577; 
 Robinson s. Mayor, &c., 1 Humph. 156 ; Pekin «. Smelzel, 21 111. 464 ; State 
 «. Plunkett, 3 Harr. (N. J.) 5 ; both held consistent and able to stand to- 
 gether. Byers v. Olney, 16 111. 85 ; Page o. State, 11 Ala. 849 ; Benefleld v. 
 Hines, 18 La. An. 420 ; Louisville s. McKean, 18 B. Mon. 9 ; Dietz v. City, 
 1 Colorado, 323, 1871; Burckholter s. McConnellsville, 20 Ohio St. 308; 
 Baldwin Co. ®. Liquor Dealers, 42 Geo. 825 ; State v. Sherman, 20 Mo. 265. 
 Liquor license fee held not a tax, in the constitutional sense of the term, 
 compelling uniformity of taxation. East St. Louis ». Wehrung, 46 111. 392. 
 Special provision of charter construed not to give power to prohibit abso- 
 lutely the sale of liquor in the town. Hill s. Decatur, 22 Geo. 203. 
 
 ' Commonwealth v. Turner, 1 Cush. 493, 1848. The limitations on such 
 a general power to make by-laws, discussed by Shaw, C. J. As to text, see 
 Commonwealth v. Dow, 10 Met. 382, 1845. General welfare clause does not 
 authorize a municipal corporation to pass an ordinance prohibiting the 
 retail of intoxicating liquors, when this is repugnant to the state laws on 
 the subject. Ex parte Burnett, 30 Ala. 461, 1857. But under a different 
 state of general legislation, see State v. Clark, 8 Poster (N. H.) 176, 1854; 
 Heisembrittle v. City of Charleston, 2 McMuUen (South Car.) 283 ; State s. 
 Ferguson, 22 N. H. 424, 1851 ; distinguished from and commenting on the 
 above cases. State v. Freeman, 38 N. H. 426, approving and following, 
 State V. Clark, 8 Post. 176 ; Megowan v. Commonwealth, 3 Met. (Ky.) 3, 
 1859. 
 
Ch. Xn.] RELATING TO PUBLIC OFFENCES. 399 
 
 spirituous liquors in their shops, or in any acljacent 
 room.' 
 
 A corporation whose charter contained the general wel 
 fare clause, and also Specific power "to license persons to 
 retail spirituous liquors, and to prohibit persons from sell- 
 ing without such license," and was, it seems, silent as to the 
 amount which might be demanded for a license, was ad- 
 judged competent to enact an ordinance demanding $500 as 
 the fee for a retail license." 
 
 Power by its charter to a city " to tax, or entirely sup- 
 press, all petty groceries," was held, in connection with 
 other provisions of the charter expressly authorizing certain 
 other subjects to be licensed, not to confer upon the corpo- 
 ration the power to grant licenses for retailing vinous liquors, 
 and to demand a sum of money therefor.' 
 
 Ordinances Relating to Public Offences. 
 
 % 300. Distinction Between Laws and By-Laws— Con- 
 current Prohibitions, &c. — Statute law and by-laws are 
 
 ' Heisembrittle v. City Council, 2 McMuUen (South Car.), Law, 233, 1842. 
 Followed and afflnned: City Council v. Ahrens, 4 Strob. (South Car.) Law, 
 241, 1850. See City Council v. Baptist Church (giving preamble to charter 
 in question), 1 b. 306, 308. A town had exclusive authority over the sale of 
 liquors therein, and it was held that power to "regulate, restrain, and sup- 
 press shops and places for the sale of ardent spirits by retail,'' amounted to 
 an authority to forbid the sale ; for if there is a sale it must be made in 
 some shop or place. Clintonville v. Keeting, 4 Denio, 341, 1847 ; Thomas ». 
 Mt. Vernon, 9 Ohio, 290. Construction of charter provisions, holding that 
 the sale of intoxicating liquors might be declared a nuisance by the muni- 
 cipal authorities. Block v. Jacksonville, 36 111. 301 ; Goddard v. Same, 15 
 n. 588; Byers«. Trustees, &c., 16 li. 35; Peking. Smelzel, 21 Z5, 464. 
 
 ' Perdue v. Ellis, 19 Geo. 586, 1855. But see Bx parte Burnett, 30 Ala. 
 461, and compare that with Intendant «. Chandler, 8 Ala. 899. See also St.' 
 Louis V. Smith, 2 Mo. 113; where there was charter power to "restrain and 
 prohibit tippling houses, " and the corporation was held entitled to impose 
 a license fee. Power to "tax" and "restrain" sale of liquor includes 
 power to grant licenses. Mt. Carmel «. Wabash County, 50 111. 69, 1869. 
 
 ' Leonard i>. Canton, 35 Miss. (6 Geo.) 189, 1858. Power "to prohibit 
 tippling houses," does not authorize an ordinance prohibiting sales of beer 
 by brewers. Strauss v. Pontiac, 40 111. 801, 1866. Prohibition in ordinance 
 to sell liquors without license, held not to apply to sales by manufacturers, 
 but to retail dealers. St. Paul v. Troyer, 3 Minn. 291. 
 
400 MUNICIPAL COEPORA.TIONS. [Ch. XH. 
 
 intended to meet different wants and exigencies, and to serve 
 different pnrposes. The former, when genei&l in its nature 
 and operation, is intended to furnish a rule for the govern- 
 ment of the people of the state everywhere. The latter, 
 made by the corporation under derivative authority, are 
 local regulations for the government of the inhabitants of 
 the incorporated place ; and of course they must be void 
 unless specially authorized by the charter or organic act of 
 the corporation, when they are repugnant to, or inconsistent 
 with, the general law of the land. No implied power to 
 pass by-laws, and no express general grant of the power, 
 can authorize a by-law which conflicts either with the na- 
 tional or state constitution, or with the statute of the state, 
 or with the general principles of the common law adopted 
 or in force in the state. 
 
 § 301. The laws of the state operate within the limits of 
 municipal corporations and upon their inhabitants the same 
 as elsewhere, unless it is otherwise clearly provided in the 
 charter, or by some statute of the state : and unless so pro- 
 vided, in case of conflict between laws and by-laws, the 
 latter must give way. But the state may, and as to local 
 matters frequently does, except municipal corporations 
 from the operation of its laws, and either provides a special 
 law for them or authorizes them to provide special regula- 
 tions for themselves ; and when this is done there is no con- 
 flict. But these local laws and regulations are at all times 
 subject to the paramount authority of the legislature. 
 Questions of difficulty have arisen in consequence of grants 
 of power to municipal corporations to make ordinances re- 
 specting matters and acts already regulated by general 
 statute, and if criminal in their nature, punishable under 
 the laws of the state. Hence, the same act comes to be for- 
 bidden by general statute, and by the ordinance of a muni- 
 cipal corporation, each providing a separate and different 
 punishment. The same transaction may, if complex in its 
 nature, be in one part of it an offence against the general 
 law, and in another against the by-law, but such cases pre- 
 sent no difficulty. But can the same act be twice punished, 
 once under the ordinance and once under the statute? The 
 cases on this subject cannot be reconciled. Some hold that 
 
Ch. Xn.] RELATING TO PUBLIC OFFENCES. iOl 
 
 the same act may be a double ofEence, one against the state 
 and one against the corporation. Others regard the same 
 act as constituting a single offence, and hold that it can be 
 punished but once, and may be thus punished by which- 
 ever party first acquires jurisdiction. 
 
 § 303, In view of the somewhat strict construction of 
 grants of corporate powers, elsewhere explained and illus- 
 trated, and of the subordinate nature and purposes of by- 
 laws, the following rules, although seeming to rest on sound 
 principles, are, in view of the decisions, stated with some 
 distxust of their entire correctness : I. A general grant of 
 power, such as mere authority to make by-laws, or au- 
 thority to make by-laws for the good government of the 
 place, and the like, should not be held to confer authority 
 upon the corporation to make an ordinance punishing an 
 act — ^for example, an assault and battery — which is made 
 punishable as a criminal oflfence by the laws of the State. 
 The intention of the State that the general laws shall not 
 extend to the inhabitants of municipal corporations, or that 
 these corporations shall have the power, by ordinance, to 
 supersede the State law, will not be inferred from granta of 
 power general in their character ; nor will such authority in 
 the corporation be held to exist as an implied or incidental 
 right. IL Where the act is, in its nature, one which con- 
 stitutes two offences, one against the State and one against 
 the municipal government, the latter may be constitu- 
 tionally authorized to punish it, though it be also, an offence 
 under the State law ; but the legislative intention that this 
 may be done should be manifest and unmistakable, or the 
 power in the corporation should be held not to exist. 
 III. Where the act or matter, covered by the charter or 
 ordinance, and by the State law, is not, essentially, criminal 
 in its nature, and is one which is generally confided to the 
 supervision and control of the local govt^rnment of cities and 
 towns, but is also of a nature to require general legislation, 
 the intention that the municipal government should have 
 power to make new, further, and more definite regulations, 
 and enforce them by appropriate penalties,, will be inferred: 
 from language which would not be su,fiicient were the 
 matter one not specially relating to corporate duties, and 
 26 
 
403 MUNICIPAL CORPORATIONS. [Ch. XH. 
 
 fully provided for by the general laws. Such are the 
 general principles to be extracted from the authorities, but 
 the exact state of the law will more satisfactorily appear, 
 and, indeed, can only be seen by reference to the adju- 
 dicated cases ; accordingly, the leading ones upon the sub- 
 ject are stated in the note,' and in some of its aspects the 
 
 ' Ex pwrte Smith, Hempstead, 301, 1833 ; Mayor, &c. of Savannah v. 
 Hussey, 31 Geo. 80, 1857; New OrleaUs v. Miller, 7 La. An. 651, 1853; 
 Municipality v. Wilson, 5 lb. 747; State-*. Cowan, 39 Mo. 330 (furious 
 driving) ; St. Louis ». CafFerata, 24 Mo. 94 (Sunday ordinances) ; Amboy v. 
 Sieger, 81 III. 499 ; State «. Ledford, 8 Mo. 103 ; Independence v. Moore, 
 33 Mo. 893; McLaughlin®. Stevens, 3 Cranch 0. 0. R. 148; St. Louisa. 
 Bentz, 11 Mo. 61 (ordinance against vagrants); United States v. Holly, 3 
 Cranch C. C. R. 656; Jefferson City v Courtmire, 9 Mo. 683 (ordinance 
 against riots) ; Davis v. State, 4 Stew. & Port. (Ala.), 83 ; State v. Plunkett, 
 3 Harrison (N. J.), 5, 1840 ; Rice «. State, 3 Kansas, 141, 1865 ; Rogers v. 
 Jones, 1 Wend. 361 ; Mayor, &c. of New York v. Hyatt, 3 E. D. Smith, 156 ; 
 Borough of York ». Forscht, 33 Pa. St. 391 ; March v. Commonwealth, 13 
 B. Mon. 35 ; Commissioners «. Harris, 7 Jones (Law) 381 ; Brooklyn v. Toyn- 
 bee, 31 Barb. 383; Davenport v. Bird, 34 Iowa, Dec. Term, 1871 ; Zylstra v. 
 Charleston, 3 Bay (South Car.), 383; Petersburg v. Metzker, 21 111. 205, 
 1859 ; Barter v. Commonwealth, 3 Pa. 253 ; State v. Clark, 1 Dutch. (N. J.) 
 54; State v. Pollard, 6 Rh. Is. 290; People ®. Jackson, 8 Mich. 110. 
 
 Treating of the constitutional question involved, Mr. Justice Goohy re- 
 marks, that although the decisions are not uniform, the clear weight of 
 authority is, " that the same act may constitute an offence both against the 
 state and the municipal corporation, and both may punish it without viola- 
 tion of any constitutional principle." Const. Lim. 199 ; S. P. March «. Com- 
 monwealth, 12 B. Mon. 35, 29, per Simpson, C. J. In England a by-law im- 
 posing a penalty on a corporator, for refusing to serve in a corporate office, 
 is valid, notwithstanding the party may be indicted for the same refusal, as 
 he may be in all cases of municipal offices necessary or proper to carry on 
 the government of the corporation. Grant on Corp. 82. A distinction was 
 there early made between grave offences classified as pleas of the crown and 
 triable upon an issue of not guilty between the king and the defendant, and 
 lesser or petty offences punishable by fine or amerciament Vipon presentment 
 in court leet, or inferior jurisdictions. See Hale P. C. vol. I. chap. LII. ; 
 vol. n. chap. XIX. Norton's Com. London, 370, 453. 
 
 In Georgia the general welfare clause in a charter was decided not to 
 authorize the passage of an ordinance prescribing a different mode of trial 
 and punishment in addition to that provided for by the general criminal 
 code of the state, for harboring and enticing seamen. Savannah v. Hussey, 
 31 Geo. 80, 1857. The power of municipal corporations to legislate respecting 
 offences fully covered by the state law is denied, and the general subject is 
 largely and satisfactorily discussed, and it is well remarked that, in such 
 cases, " the law of the state is the law of the corporation; and they cannot 
 
Ch. Xn.] RELATING TO PUBLIC OFFENCES. 403 
 
 matter is further considered in the chapter on Municipal 
 Courts. 
 
 make another law for themselves." The following is extracted from the 
 opinion delivered by a very able judge:— "Under the general grant o( 
 power (to pass all such ordinances as may seem necessary for the security, 
 welfare, &c. of the city) the city authorities may cover all [proper] cases not 
 provided for by the paramount authorities of the state. All those ordi- 
 nances regulating cemeteries, commons, markets, vehicles, fires, exhibi- 
 tions, lamps, licenses, water works, watch, police, city taxes, city officers, 
 health, nnisamces, &c., are legitimate and proper. Nay, I nught go further, 
 and concede that where a state law defines an ofEence generally, and pre- 
 scribes a punishment without reference to the place where it is committed, 
 in town or country, and the act, when committed in the streets and public 
 places of the city, would be attended with circumstances of aggravation, 
 such as an affray, for instance, the corporate authorities, with a" view to 
 suppress this special mischief, might probably provide against it by ordi- 
 nance. But this is going quite far enough." But I deny that '■ a municipal 
 corporation can legislate oriminaliter upon a case fully covered by the state 
 law, though aware that decisions may be found to support" that view. 
 Per Lumpkin, J., in Savannah v. Hussey, 21 Geo. 80, 86, 1857. And it is set- 
 tled in Georgia, that where an act amounts to an indictable offence it can- 
 not be punished under municipal ordinances, but the offender must be 
 bound over to the proper court ; if it does not amount to an indictable 
 offence the offender may be punished under the ordinances of the munici- 
 pality, and if it is a nuisance, steps may also be taken to have it abated. 
 Vason «. Augusta, 38 Geo. 543, 1868. 
 
 But in Alabama it is held that a municipal corporation, with power to 
 enact ordinances " for the good government of the place, not contravening the 
 laws of the state," may pass an ordinance imposing a fine for an assault and 
 battery within its limits, and a punishment under the state law for the 
 same act is "no bar to a prosecution under the ordinance. Collier, C. J., de- 
 livering the opinion of the court, says: "The object of the power con- 
 ferred by the charter, and the purpose of the ordinance itself, was not to 
 punish an offence against the criminal justice of the country, but to provide 
 a meie police regulation for the enforcement of good order and quiet within 
 the limits of the corporation. * * The offences against the corporation 
 and the state are distinguishable and wholly, disconnected, and the prosecu; 
 tion at the suit of each proceeds upon a different hypothesis — the one con- 
 templates the observance of the peace and good order of the city; the other 
 has a more enlarged object in view — the maintenance of the peace and 
 dignity of the state." Mayor, &c. of Mobile i>. Allaire, 14 Ala. 400, 1848. 
 If the principle stated in the text be correct, the soundness of this decision 
 under the powers conferred upon the corporation may admit of doubt, but 
 the same view had been previously taken in the same court in The Mayor, 
 &c. of Mobile ». Kouse (liquor law), 8 Ala. 515, 1845. And see Moore e. 
 State, 16 Ala. 411 ; Greensboro v. MuUins, 13 Ala. 341. Extent of police 
 power. Shafer t Mumma, 17 Md. 331. Ante, sees. 03, 95, 391, 393. 
 
404 MUNICIPAL CORPORATIONS. [Ch. XH. 
 
 Ordinances Relating to the Public Health, Safety, and> 
 Convenience. 
 
 § 303. Health Ordinances— Hospitals and Burials. — 
 Our municipal corporations are usually invested with power 
 
 Authority to pass ordinances " to preserve the health and comfort of the 
 town," does not empower the corporation to pass an ordinance to prevent 
 or punish Ireaehes of the peace. Raleigife «. Dougherty, 3 Humph. (Tenn.) 
 11, 1843. See chapter on Municipal Courts, ^o«i. Where gambling stud the 
 keeping of gamWing houses are made public offences by the state laws, offend- 
 ers may be prosecuted in the state courts for the violation of these laws, 
 notwithstanding the organic acts of cities may give to the city council power 
 " to restrain, prohibit, and suppress games and gambling houses. " In thus 
 holding, the court adds, "It is not necessary, in this case, to decide 
 whether both the state and the city can punish for the same act; but we 
 have no doubt that the one which shall first obtain jurisdiction of the per- 
 son of the accused may punish to the extent of its power." Rice v. State, 
 3 Kansas, 141, 1865. The same point has been decided the same way in a 
 late case by the Supreme Court of Mihnesota. State v. Crummey, 17 Minn. 
 73, 1871. Gambling being punishable under the general law, a city coun- 
 cil "invested with authority to make ordinances to secure the inhabitants 
 against fire, against violations of the law and the public peace, to suppress 
 riots, gambling, drunkenness, indecent and disorderly conduct, to punish 
 lewd behavior in public places, * * and, generally, to provide for the 
 safety, prosperity, and good order of the city," possesses, by virtue thereof, 
 no power to make the keeping of any gambling device a misdemeanor, and 
 to punish the same. Mount Pleasant ». Breeze, 11 Iowa, 399, 1860. 
 
 In Missouri it is held that where the same act (as, for example, furious 
 driving in highways and public places) is a violation of a valid municipal 
 ordinance and of the general criminal statutes of the state, the oflfender can 
 be punished but once, and hence, to an indictment jIn the state court, he 
 may plead a former conviction under the ordinance of the municipal cor- 
 poration. State v. Cowan, 39 Mo. 330, 1860. But qucere. The opinion in 
 this case assumes, without discussion, that the ojfense is single, lb. 
 
 In Slaughter v. People, 3 Doug. (Mich.) 334, the principle was decided 
 that it was not competent to punish, under a city ordinance, an act which 
 was indictable. Illustrating the difference between prosecutions under 
 special penal provisions of a city charter, of acts with specified fines and 
 penalties affixed by the charter, but which acts are breaches of the law of 
 the state wherever committed, and ordinary prosecutions under municipal 
 ordinances, see Wayne County v. Detroit, 17 Mich. 390, 1868; People v. 
 Detroit, 18 Mich. 445, 1869; People ®. Jackson, 8 Mich. 110. Post, chap. 
 XIII. 
 
 In Indiana it was first held, that where the act complained of is indicta- 
 ble as a criminal offence against the laws of the state, a person could not be 
 punished for such act under or by virtue of the ordinances of a city. City 
 
Ch. XU.J KELATINQ TO PUBLIC HEALTH, &o. 405 
 
 to preserve the health and safety of the inhabitants. This. 
 is, indeed, one of the chief purposes of local government, 
 and reasonable by-laws in relation thereto have always 
 been sustained in England as within the incidental au- 
 thority of corporations to ordain. It will be useful to illus- 
 trate the subject by reference to some of the adjudged cases.' 
 An ordinance of a city prohibiting, under a penalty, any 
 person, not duly licensed therefor by the city authorities, 
 from " removing or carrying through any of the streets of 
 the city any house dirt, refuse, offal, or filth," is not im- 
 properly in restraint of trade, and is reasonable and valid. 
 Such a by-law is not in the nature of a monopoly, but is 
 founded upon a wise regard for the public health. It was 
 contended that the city could regulate the number and 
 kind of horses and carts to be employed by strangers or 
 unlicensed persons as well as they could those of licensed 
 persons. But practically it was considered that the main 
 object of the city could be better accomplished by employ- 
 ing men over whom they have entire control, night and day, 
 who are at hand, and able from habit to do the work in the 
 best way and at the proper time." 
 
 Council of Indianapolis o. Blythe, 3 Ind. (Carter) 75, 1850. In this case the 
 city, unsuccessfully, sought to recover a penalty prescribed by ordinance 
 tor an assult and battery committed by the defendant within the city. 
 Same principle, City of Madison a. Hatcher, 8 Blackf. 341, 1846. But these 
 cases were overruled by Ambrose v. State, 6 Ind. 351, in which it was held 
 that a single act might constitute two offences, one against the state and 
 one against the municipal government, and "that each might punish in its 
 own mode, by its own oflBcers, the same act as an offense against each." 
 J'erMns, J., in Waldo ». Wallace, 13 Ind. 583, 1859, where prior cases in that 
 state are referred to. See, aldo, Lawrenceburg v. West, 16 Ind. 337 ; Fox 
 e. State, 5 How. 410 ; Moore v. People, l4 How. 13. 
 
 In Louisiana, municipal corporations are held to have no power to im 
 pose a penalty on that which is made punishable as a criminal offense by 
 the laws of- the state. But it is admitted that there is a class of offenses 
 against public order not made punishable by the state law, which it is with- 
 in the power of such corporation to suppress. New Orleans v. Miller, 7 La. 
 An. 651, 1853; Municipality p. Wilson, 5 li. 747. This cases seems to con- 
 cede that the city corporation cannot punish for an act identical vfith that 
 punished by the state law. See, also. Commissioners ». Harris, 7 Jones 
 (Law) 381 ; People v. Jackson, 8 Mich. 110. 
 
 ' Ante, chap. VI. sec. 98. 
 
 ' Vandine, petitioner, 6 Hck. 187, 1838; commented on in Common- 
 
406 MUNICIPAL CORPORATIONS. [Oh. XH. 
 
 § 304. Authority by ch'arter to pass ordinances respect- 
 ing tbe harbors and wharves, and "every other by-law- 
 necessary for the security, welfare, and convenience of the 
 city," gives to the city council power to pass a health 
 ordinance, requiring boats coming from infected places to 
 anchor before landing, and to submit to an examination, 
 provided such ordinance be not repugnant to the general 
 law of the state. And it was further held, that a general 
 law of the state proTiibiting " any person coming into the 
 state from an infected place, and in violation of quarantine 
 regulations," was not repugnant to and did not render the 
 ordinance invalid.' 
 
 § 305. Sospitals.—Aufhonty to the corporation of New 
 Orleans "to pass such by-laws as they shall deem neces- 
 sary to maintain the cleanliness and salubrity of the city," 
 was considered, in view of its extensive nature, certain pro- 
 visions of the Civil code, and the liability, of the city to 
 epidemics, as conferring power upon the city council to 
 prohibit the erection and maintenance of private hospitals ; 
 the court admitting that the same question had been de- 
 cided otherwise by tribunals governed by the common law 
 jurisprudence.' 
 
 wealth v. Stodder, 3 Cush. 563, 575, 576, 1848. In Zylstra v. Corporation 
 of Charleston, 1 Bay (South Car.) 382, 1794, Mr. Justice Waties (one of 
 the most accomplished of early American judges), speaking of an ordinance 
 prohibiting the making of soap or candles contrary to the mode prescribed 
 and within the limits of the city, says: "I am willing to admit that the 
 by-law itself is a valid one. If it restrained an inoffemojoe trade it would 
 not be so ; but it is made to restrain one that is both offensive and danger- 
 ous. It is, therefore, calculated to guard the comfort and safety of the 
 citizens ; and the lenefit of a ly-lom is, generally, the touch-stone of its 
 
 Power to a city council to compel the owners and occupants of slmighter- 
 hcuses to cleanse and abate them whenever necessary for the health of the 
 inhabitants, was considered not to authorize an ordinance entirely prohib- 
 iting the slaughtering of animals within certain limits of the city. Wre- 
 ford «. People, 14 Mich. 41, 1865; see Metropolitan Board of Health, 37 
 N. Y. 661; Shrader, Ex pan-fe, 38 Cal. 279, 1867. Powers with respect to 
 iwivies. Gregory ®. Railroad Company, 40 N. Y. 373. 
 
 ' Dubois D. Augusta, Dudley (Geo.) 30, 1881. Ante, sec. 95. 
 
 ' Milne v. Davidson, 5 Martin (La.), 410, 1827. 
 
 As to dty hospitals, see Vionet «. Municipality, 4 La. An. 43 ; Bozant e. 
 
Ch. Xn.] RELATING TO PUBLIC HEALTH, &o 407 
 
 § 306. Cemeteries and Burials. — The public health, 
 comfort, and convenience are concerned in the proper regu- 
 lation of burials ; and the evils resulting from its neglect 
 are especially to be apprehended in the crowded popula- 
 tions of cities. Power to regulate tMs matter may properly 
 be conferred upon municipal corporations. And such 
 power will be held to be given by authority to make police 
 regulations or to pass by-laws respecting the health, good 
 government, and welfare of the place. ' Power to city cor- 
 
 Campbell, 9 Rob. (La.) 411; City Council ». Boyd, 1 Const. Kep. A. D. 1817 
 (South Car.) 353 ; Tucked s. Virginia City, 4 Ner. 30. Municipal corpora- 
 tion may found hospitals for the poor under 39 Eliz. chap. V. In re iCew- 
 castle, 13 Clark & Fin. 403. 
 
 Q,uwrantme ordinances of a municipal corporation, passed by virtue of a 
 grant of power irom the state, whereby passenger vessels are required to 
 remain in quarantine for a specified period, are not repugnant to the com- 
 merce clause of the federal constitution. ^St. Louis «. McCoy, 18 Mo. 388, 
 1853; S. P. St. Louis b. Boffinger, 19 Ih. 13; Metcalf ». St. Louis, 11 iJ. 103. 
 In modern usage, quarantine is not confined to vessels having on board the 
 plague, but extends 'to vessels having on board other contagious diseases. 
 Per Tetmey^ 0. J., Mitchell «. Rockland, 41 Maine, 363, 1856; S. 0. again, 
 45 Maine, 496, 1858; ante, sec. 95. 
 
 Boards of Health. — An ordinance creating and giving to the board of 
 health " general supervision over the health of the city, "and " all necessary 
 power to carry the ordinance into effect,'' was considered to include the 
 power to rent a building for a temporary hospital, to protect the city from 
 an apprehended visitation of the cholera, and to make the corporation 
 liable for the rent, although it did not become necessary to use the house. 
 AuU «. Lexington, 18 Mo. 401, 1853. Power of hoard, of health to bind corpo- 
 ration. Filnd «. Dennett, 4 C. B. (N. S.) 576 ; Bartons. New Orleans, 16 La. 
 An. 317; Belcher ». Farrar, 8 Allen, 335; Hazen v. Strong, 3 Vt. 437; Com- 
 missioners ». Powe, 6 Jones (Law) 134; Wilkinson «. Albany, 8 Fost. 9. 
 Regularly, the orders ot a board of health, directing the abatement of a 
 nuisance, should be in writing. Such orders may be proved by the minutes 
 of the board, by the written orders themselves, or by being recited in the 
 proceedings of the corporation of which the board of health are members. 
 How isLV parol emdence may be received of such orders, when it appears that 
 no record or written evidence ever existed, is not free from doubt. Meeker 
 V. Van Rensselaer, 15 Wend. 397, 1836, where parol evidence of this kind 
 was held inadmissible by the Supreme Court. But see, in Court of EiTors, 
 Van Wormer v. Mayor, 18 Wend. 169; afiirming S. C, 15 Wend. 363. See, 
 also. People ». Adams, 9 Wend. 333 ; 6 Th. 651 ; ante, chap. XI. 
 
 ' Bogert V. Indianapolis, 13 Ind. 134, 1859, per Perhins, J.; Mayor, &c. of' 
 New York ». Slack, 3 Wheel. Cr. Cas. 337, 1834; Presbyterian Church «. ' 
 Mayor, &c. of New York, 5 Cow. 538, 1836 ; Coates ». Same, 7 Cow. 583, 
 
408 MUNICIPAL CORPORATIONS. [Ch. Xn. 
 
 poration, after enumerating various objects, "«?i general 
 to pass every other by-law that to it shall seem requisite and 
 necessary for the security, welfare, and convenience of the 
 city," &c., was, by the Court of Appeals of South Carolina, 
 considered to give authority to regulate the burial of the 
 dead, and particularly to prevent the establishment of new 
 burial grounds within the limits of the city, and, in the 
 opinion of the organ of the court, also to regulate the time 
 of burial, the manner of intermemt so as to prevent noxious 
 effluvia, and to prohibit interments ia the private gardens, 
 yards, and by-places of the city.' But as every by-law 
 mugt be reasonable, an arbitrary or unnecessary or oppres- 
 sive restraint upon the right of burying the dead is invalid." 
 
 § 307. Where the burden to support a public cemetery 
 is required to be borne by all the citizens, an ordinance 
 throwing .that burden upon a particular class is unreason- 
 able and void.' Cemeteries in cities are not per se nuisances, 
 
 1827; Austin «. Murray, 16 Pick. 131, 1834; Commonwealth ®. Fahey, 5 
 Cush. 408, 1850 ; New Orleans b. St. Louis Church, 11 La. An. 244, 1856 ; 
 distinguished from Presbyterian Church v. Mayor, &c. of New York, supra; 
 Commonwealth ®. Goodrich, 13 Allen, 546. The power of disinterment may 
 be delegated by the legislature to municipalities. Eincaid's Appeal, 66 Pa. 
 St. 411, 1870. 
 
 » City Council «>. Baptist Church, 4 Strob. (South Car.) Law, 306, 309, 
 1850, per Frost, J. ; S. P. Bogert v. Indianapolis, 13 Ind. 134, per PerUns, 
 J. ; New Orleans ». St. Louis Church, 11 La. An. 244; distinguished from 5 
 Cowen, 538, supra ; Musgrove ». Catholic Church, 10 La. An. 431. 
 
 « Austin ?. Murray, 16 Pick. 121, 1834; Coates 'b. Mayor, &c. of New 
 York, 7 Cow. 585; Commonwealth v. Fahey, 5 Cush. 408, 1850. 
 
 The hm of burials, in some of its relations to property and municipal 
 lights, was ably considered by the Hon. Samuel B. Buggies, referee, in the 
 matter of the opening of Beekman street, in New York City, whose report 
 establishing the following principles was confirmed by the Supreme Court : 
 1. In this country, corpses and their burials are not matters of ecclesiastical 
 cognizance. 2. That the right to bury a corpse and preserve its remains is 
 a legal right, belonging, in the absence of testamentary disposition, exclu- 
 sively to the next of kin, and includes the right to select and change the 
 place of sepulture at pleasure. 3. If place of burial is taken for public use 
 the next of kin may claim indemnity for expense of removing and suitably 
 re-interring their remains. Matter of Beekman street, 4 Bradf. (N. Y.) 503, 
 533, 1856; Bogert v. City of Indianapolis, 13 Ind. 134, 1859, per Perhins,3. 
 See, also, Matter of Brick Church, 3 Edw. Ch. Rep. (N. Y.) 155. 
 
 ' Beurojohn v. Mayor, Ac, 27 Ala. 58, 1855. 
 
Ch. Xn.] RELATING TO PUBLIC HEALTH, &c. 409 
 
 but special circumstances may make them so. It is not, 
 however, sufficient that they affect the market value of 
 property in the vicinity.' A city corporation had power, 
 by charter, " to establish cemeteries or burial places within 
 or without the city." It was held that this would author- 
 ize the city to establish cemeteries of its own, and regulate 
 them ; b,p.t that it did not emjjower the council to subject to 
 the control of the city sexton cemeteries other than those 
 belonging to the city, nor to pass an ordinance prohibiting 
 lot owners in private cemeteries, though within the city 
 limits, from entering to bury without the permission of the 
 city sexton, to be obtained only by paying him the price of 
 digging a grave." 
 
 § 308. Nuisances, and of the Power to Prevent and 
 Abate. — It is to seciire and promote the public health, 
 safety, and convenience that municipal corporations are so 
 generally and so liberally endowed with power to prevent 
 and abate nuisances. This authority may be constitution- 
 ally conferred on the incorporated place, and it authorizes 
 its council to act against that which comes within the legal 
 notion of a nuisance, but such power, conferred in general 
 terms, cannot be taken to authorize the extra-judicial con- 
 demnation and destruction of that as a n'aisance which, in 
 its nature, situation, or use, is not such.' Speaking upon 
 this subject in a very recent case, where a city, under au- 
 thority to prevent and restrain encroachments on rivers 
 
 ' New Orleans v. St. Louis Church, 11 La. An. 244, 1856 ; Musgrove v. 
 Same, 10 11. 431; Lake View ®. Letz, 44 LI. 81, 1867. 
 
 = Bogert ». Indianapolis, 13 Ind. 184, 1859. 
 
 ' Crosby s. Warren, 1 Rich. (South Car.) 385 ; Roberts v. Ogle, 30 111. 
 459; Salem v. Railroad Company, 98 Mass. 431; Dingley v. Boston, 100 
 Mass. 544 ; Van Dyke v. Cincinnati, 5 Disney, 583 ; Lake View v. Letz, 44 
 111. 81; Wreford v. People, 14 Mich. 41, 1865; State ». Jersey City, 5 Dutch. 
 (N. J.) 170. That which is authorized by legislative authority cannot be 
 declared a nuisance by a city corporation. J6. The power to abate nuis- 
 ances is a portion of police authority necessarily vested in the corporation of 
 all populous towns. Kennedy «. Phelps, 10 La. An. 237, per Buchanan, J. 
 May pass ordinances to prevent as well as remove. Gregory ®. Railroad 
 Company, 40 N. Y. 373. A city held to have no power to destroy a dam 
 across a creek within its limits as a nuisance. Clark «. Mayor, &c. of Syra- 
 cuse, 13 Barb. 33. 
 
410 MUNICIPAL CORPOKATIONS. [Ch. XXL 
 
 running throngh it, commenced summary proceeding to re- 
 move a private wharf, an eminent judge uses this language : 
 "But the mere declaration hy the city council, that a cer- 
 tain structure was an encroachment or obstruction, did not 
 make it so, nor could such declaration make it a nuisance 
 unless it in fact had that-character. It is a doctrine not to 
 be tolerated in this country, that a municipal corporation, 
 without any general laws either of the city or of the state, 
 within which a given structure •can be shown to be a 
 nuisance, can, by the mere declaration that it is one, sub- 
 ject it to removal by any person supposed to be aggrieved, 
 or even by the city itself. This would place every house, 
 every business, and all the property in the city, at the un- 
 controlled will of the temporary local authorities.'" 
 
 ' Per Miller, J., Tates v. Milwaukee, 10 "Wall. 497, 1870 ; Underwood v. 
 Green, 42 N. T. 140; Darst v. People, 50 111. 286, 1869; Miller u. Burch, 
 32 Texas, 209, 1869. A person sick, even with contagious disease, in his 
 own house or at a hotel, is not a nuisance. Boom v. Utica, 2 Barb. 104, 1848. 
 
 Works that amount to a private nuisance, causing actual damage to pri- 
 vate persons, cannot be justified, under a license from the city council to 
 erect them. But the fact of such license is evidence of great but not con- 
 clusive weight in favor of the party erecting and owning the works claimed 
 to be a nuisance. Ryan v. Copes, 11 Rich. (South Car.) Law, 217, 1858. A 
 pig sty in a populous place is, per se, a nuisance. Commissioners v. Van- 
 sickle, Bright. (Pa.) R. 69. Livery stable in a town is not, per se, a nuisance, 
 it depends upon its location and the manner in which it is built, kept or 
 used. Aldrich a. Howard, 7 Rh. Is. 87; S. C, 8 lb. 246; Burditt v. Swen- 
 son, 17 Texas, 489, 1856; Dargan «. Waddell, 9 Ire. (Law) 244; Kirkman v. 
 Handy, 11 Humph. (Tenn.) 406; Coker «. Birge, 10 Geo. 336. Bricl 
 making: Wanstead, &c. v. Hill, 13 C. B. (N. S.) 479. Slaughterhouse: 
 Dubois V. Budlong, 10 Bosw. (N. T.) 700; 20 N. J. Eq. 415. Powder house, 
 with large quantities of powder therein, located in a city, is a nuisance. 
 Cheatham b. Sheam, 1 Swan (Tenn.) 213, 216 ; Dnmesnil ®. Dupont, 18 B. 
 Mon. 800. Planing miU: Rhodes ®. Duijbar, 57 Pa. St. 274. As to gas 
 worhs: Cleveland o. Gas Light Co., 30 N. J. Eq. 201. Steam flouring mill: 
 Gilberts. Showerman, 23 Mich. 448. Stock yards: li. 296; Ashbrook v. 
 Commonwealth, 1 Bush (Ky.) 189. In Louisiana, where the civil code (art. 
 655) provides that works, &c., causing annoyance " shall be regulated by 
 the rules of the police or the customs of the place " where located, an ordi- 
 nance of a city council ordering a blacksmith shop to be closed, as a 
 nuisance is authorized by law, and may be carried into effect by an injunc- 
 tion, procured by the city in its corporate name, restraining the owner from 
 continuing the shop. New Orleans v Lambert, 14 La. An. 247, 1859. 
 
 Power of municipal corporation to remove nuiaances, and how far their 
 
Ch. XU.] EBLATESra TO PUBLIC HEALTH, &c. 411 
 
 § 309. Power to municipal corporation to make ' ' by- 
 laws relative to nvdsances generally," has been decided to 
 authorize an ordinance prohibiting the keeping, in any 
 manner whatsoever, of a bowling alley for gain or hire, 
 such a place being a public nuisance at common law.' So 
 
 decision as to fact of nuisance is conclusive. Welch «. Stowell, 3 Doug. 
 (Mich.) 833 ; Kennedy v. Board of Health, 3 Pa. St. 366 ; Commissioners v. 
 Vansickle, Bright. (Pa.) 69; Green ». Savannah, 6 Geo. 1; Roberts «. Ogle, 
 30 m. 459; Clark v. Mayor, &c., 13 Barb. 83; Saltonstall «. Banker, 8 Gray, 
 195; Kennedys. Phelps, 10 La. An. 337; Green v. Underwood, 43 N. T. 
 140; Darst®. People (intoxicating liquors) 51 111. 386, 1869. 
 
 Under the English Municipal Corporations Act the council of any bo- 
 rough is empowered to make by-laws for the good rule and government of 
 the borough, and the prevention and suppression of nuisances (ante, sec. 371), 
 and it is held that this power respecting the suppression of nuisances is 
 confined to the suppression and prohibition of acts which, if done, must 
 necessarily and inevitably cause a nuisance, and it does not empower the 
 coimcil to impose penalties for the doing of things which may or may not 
 be a nuisance according to circumstances. Thus, where the town council 
 imposed a fine upon every person who should "keep, or suffer to be kept 
 any swine within the borough, between the first of May and the first of Oc- 
 tober,"it was held that the by-law was wholly invalid, as the keeping of a 
 pig did not necessarily create a nuisance. Addison on Torts, 84, citing, 
 Everett v. Grapes, 3 Law T. R. N. 8. Q. B. 699 ; Wanstead Local Board v. 
 HUl, 13 C. B. N. S. 479. 
 
 ' Tanner «. Albion, 5 Hill (N. Y.) 131, 1843; followed, Updyke«. Camp- 
 bell, 4 B. D. Smith, 570, 1855; The People v. Sargeant, 8 Cow. 139, which 
 held that a room kept for the playing of billiards was not a public nuisance, 
 though a profit was 'made of it, commented on and distinguished, and by 
 Cowen, J., doubted, in 5 Hill, supra. Whether a ball alley could be prohibited 
 under the general authority to pass by-laws relative to good government, &c., 
 was alluded to, but not determined. See Jackson ii. People, 9 Mich. Ill ; 
 Smith ■». Madison, 7 Ind. 86. In the State v. Hull, 32 K. J. 158, 1867, it was 
 held that a ten-pin alley kept for gain and public use in a town is not, p&r 
 se, a nuisance. The law on the subject is very fully examined in the opin- 
 ion of Beasley, C. J., and the case of Tanner «. Albion, supra, reviewed and 
 disapproved. Where a city has, by its charter, the power to determine 
 whether bowling alleys should be allowed, and, if so, under what restrictions, 
 an ordinance requiring them to be closed at a certain hour is valid. State 
 e. Hay, 39 Maine (16 Shep.) 457, 1849 ; State v. Freeman, 38 N. H. 436 ; 
 supra, sec. 303, note. Under authority to pass such ordinances as the coun- 
 cil "may consider fit and proper to remove nuisances or causes of disease," 
 &c., it was held that the city of Savannah might prohibit the growing of 
 rice within the corporate limits, as being injurious to the health of the city, 
 and abate the same, and that such an ordinance was valid as a police regu- 
 lation. Green v. Savannah, 6 Geo. 1, 1849. Where proceedings in respect 
 
412 MUNICIPAL CORPORATIONS. ''Cii. XH. 
 
 under power to pass by-laws to prevent and remove nui- 
 sances, an ordinance may be passed inflicting a fine on any 
 person who should exhibit a stud-Tiorse in the streets of the 
 corporation.' 
 
 § 310. Power "to suppress Mwdy houses,''^ gives the 
 corporation authority, by implication, to adopt, by ordi- 
 nance, the proper means to accomplish the end ; and among 
 the methods which may be adopted, is one forbidding the 
 owners of houses from renting or letting the same for this 
 purpose, or with knowledge that they are to be thus used." 
 But power to the common council of a city "to make all 
 such by-laws as it may deem expedient for eflfectually 
 preventing and suppressing hoases of ill-fame," does not 
 authorize the council to decide that a given house is kept 
 for that purpose, nor if kept for that purpose, does it au- 
 thorize the council to order it to be demolished ; nor if thus 
 demolished, will it justify the officers of the city who did it, 
 in execution of the ordinance and resolution of the council.' 
 
 § 311. A city charged by law with the duty of prevent- 
 to nuisances are instituted by order of the city council, chancery will not 
 enjoin or interfere, "unless the municipal corporation have clearly tran- 
 scended their powers." , Kennedy ii. Phelps, 10 La. An. 337, 1855 (building 
 for curing hides) ; S. P. Mihae ». Davidson (private hospital), -5 Martin (La.) 
 ■ 586, 1837; Potter •». Menasha, 30 Wis. 493, 1873. 
 
 ' Nolin «. Mayor, 4 Yerg. (Tenn.) 163, 1833. Under power "to prevent 
 and remove nuisances," a corporation may, if a vacant building is so used 
 as to endanger by fire tlje property of others, or the health of the commu- 
 nity, declare the same a nuisance and notify owner to abate it, and if he 
 fails, the individual officer of the corporation who abates the nuisance may, 
 on being individually sued, justify the act. Harvey «. Dewoody, 18 Ark. 
 353, 1856. 
 
 " Childress v. Mayor, &c., 3 Sneed (Tenn.) 347, 1855. Power to make by- 
 laws relative to nuisances, gives authority to impose penalties on the keep- 
 ers of houses of ill-fame, and on persons owning houses used, with their 
 knowledge, for this purpose. McAlister «. Clark, 33 Conn. 91, 1865. See 
 Ely V. Supervisors, 36 N. Y. 397; Shaffer ». Mumma, 17 Md. 331, 1861. In 
 prosecutions for keeping bawdy houses, the law, it has been said, so far re- 
 laxes the ordinary rule, that common reputation as to the character of the 
 defendants, and of the houses which they keep, is admissible. State v. Mc- 
 Dowell, Dudley (South Car.) Law, 346. 
 
 ' Welch V. atowell, 3 Doug. (Mich.) 333, 1846. " 
 
Ch. Xn.] RELATING TO PUBLIC HEALTH, &c. 413 
 
 ing obstructions of a river witMn its limits, may, by its own 
 act, and without proceeding by indictment, abate or remove 
 anything which obstructs the free and public use of the 
 river, such as a floating store-house, calculated to remain 
 stationary in the water, and which exclusively occupies a 
 portion of the river, such a structure being a public nui- 
 sance ' It is no answer to this right of abatement that room 
 enough is left for the public, or that the structure is bene- 
 ficial ;" or that the party erecting it is the owner of the 
 adjacent lots.' 
 
 § 312. But under the power to abate nuisances, prop- 
 erty lawfully erected and existing, or a house which is only 
 a nuisance because occupied by a business which is such, 
 cannot be destroyed or demolished. The public can pro- 
 ceed by indictment, or the business carried on in the house 
 suppressed.*' 
 
 § 313. MarTcets, and of the Power to Establish and 
 HegiiZate. — The states, under their police power, may dele- 
 
 ' Hart B. Mayor, &c., of Albany, 9 Wend. 571, 1833; a valuable and very 
 carefully considered case; afSrming S. C, 3 Paige Ch. R. 318; People «. 
 Vanderbilt, 38 N. T. 396. See Button v. Strong, 1 Black, 23. The corpo- 
 rate body may abate or remove the nuisance ; but without express authority 
 cannot ordain a forfeiture of the structure, or seize and seB it, or convert 
 the materials to their own use. 9 "Wend. 571, 609, supra. 
 
 ' 1 1. Respublica v. Caldwell, 1 Dallas, 150 ; King v. Russel, 6 Bast, 437 ; 
 King v. 0|0S8, 3 Camp. 334 ; King v. Jones, 3 Camp. 339. 
 
 » Hart«. Mayor, &c., 9 Wend. 571, 608; Strange R. 1347; 3 Bac. Abr. 
 686; 1 Hawk. P. C. 363, note 1. 
 
 » Clark «. Syracuse, 13 Barb. 32 ; Welch v. Stowell, 3 Doug. (Mich.) 332, 
 1846; Miller «. Burch, 33 Texas, 309, 1869. When equity will interfere to 
 prevent and remove nuisances which aflfect the public generally. People «. 
 St. Louis, 5 Gilm. (111.) 373 ; Hoole ». Attorney-General, 33 Ala. 190. At- 
 torney-General v. Gas Company, 19 Eng. Law and Eq. 639; Aldrich ». 
 Howard, 7 Rh. Is. 87 ; Zabriskie « Railroad Company, 2 Beasley Ch. (N. J.) 
 314; Jersey City v. Hudson, II. 430; Dumesnil v. Dupont, 18 B. Mpn. 800, 
 1857. A city council may, by resolution, direct its officers to proceed 
 against a specified establishment as a nuisance, and cause the same to be 
 abated under a general ordinance of the coi-poration ; this is a different 
 thing from passing an ordinance inflicting a fine upon a particular person 
 for keeping a nuisance, which cannot be lawfully done. Kennedy «. Phelps, 
 10 La. An. 237, 1855. See Commonwealth ». Goodrich, 13 Allen, 545; 
 Municipality v. Blineau, S La. An. 688. 
 
414 MUNICIPAL CORPORATIONS. [Ch. XII. 
 
 gate to municipal corporations the authority to establish, oi 
 authorize the establishment of, markets ; and it is compe- 
 tent to such corporations, under proper grants of power, to 
 enact ordinances forbidding sales and purchases of market- 
 able articles, except at designated market places. The 
 extent of the power possessed by a particular corporation 
 depends upon its charter. In England the regulation of 
 markets by by-laws has long berai exercised, and such by- 
 laws are sustained as being reasonable, and conducive to the 
 health and good government of the municipality." In this 
 country the practice is almost universal on the part of the 
 legislature to confer upon the municipal agencies more or 
 'less authority with respect to markets and market places, 
 and such grants are not so strictly construed as those which 
 invest the corporation with powers of a more extraordinary, 
 or unusual character — at least such is the case unless a mo- 
 nopoly in favor of private individuals is sought to be sus- 
 tained, against which the courts strongly lean.' 
 
 ' Pierce v. Bartram, Cowp. 270 ; Player v. Jenkins, 1 Sid. 384 ; Rex b. 
 Cottrell, 1 B. & Ad. 67, 1817. See, also, Mosley v. Walker, 7 Barn.& Cress. 
 40; Mayor, &c. v. Pedley, 4 Bam. & Adol. 397; Q-rant on Corp. 166, as W 
 exclusive privileges in England as to markets and market tolls. Defini- 
 tion. — A market is a franchise or liberty derived from the crown, by grant, 
 or prescription which presupposes a grant. 3 Black. Com. 37. "It is a 
 designated place in a town or city, to which all persons can repair who 
 wish to buy or sell articles there exposed for sale." Per Breese, J., Cald- 
 well i>. Alton, 33 111. 416. 
 
 "A municipal market consists: 1. In a place for sale of provisions and 
 articles of daily consumption. 3. Convenient fixtures. 3. A system of police 
 regulations, fixing market hours, making provisions for lighting, watching, 
 cleaning, detecting false weights and unwholesome food, and other arrange- 
 ments calculated to facilitate the intercourse and insure the honesty of buyer 
 and seller. 4. Proper ofiicers to preserve order and enforce obedience 
 to the rules." Per Lane, C. J., Cincinnati «. Buckingham, 10 Ohio, 357, 
 1840. 
 
 " Wartman v. Philadelphia, 33 Pa. St. 203, 309, 1854 ; Le Claire v. Daven- 
 port, 13 Iowa, 310; White ®. Kent, 11 Ohio St. 550; St. John ■». Mayor, &c. 
 of New York, 6 Duer, 315; Ash «. People, 11 Mich. 347; St. Louis v. Jack- 
 son, 35 Mo. 37; St. Louis a. Weber, 44 Mo. 547, 1869; Nightingale's Case, 
 11 Pick. 168; Congot v. New Orleans, 16 La. An. 31; Bufi'alo«. Webster, 
 10 Wend. 99; Yates v. Milwaukee, 13 Wis. 673; Bethune v. Hughes. 7 Geo. 
 560; Ketchum ®. Bufialo, 14 N. Y. 356; Municipality v. Cutting, 4 La. An. 
 336 ; New Orleans o. Guillotte, 13 La. An. 818 (corporate partnership with 
 individuals); State*. Lieber, 11 Iowa, 407; Dubuque v. Miller, 11 Iowa, 
 
Ch. Xn.] RELATING TO PUBLIC HEALTH, &c. 415 
 
 § 314. Power to Build and Establish. — Incorporated 
 cities and towns may have tlie power to build marltet houses 
 without an express grant. Thus it has been held, that a 
 town having authority " to make by-laws for managing and 
 ordering its prudential affairs," has power— the court look- 
 ing somewhat to usage and custom to ascertain what sub- 
 jects of, common interest are embraced under the term, 
 " prudential," — ^to appropriate money for the erection of a 
 market house, and to raise the amount by taxation. This 
 power, it was admitted, more clearly exists in' the case of 
 large towns and populous villages,' 
 
 §315. Power conferred upon a municipality "to es- , 
 tdblish and regulate markets," authorizes, as a necessary 
 incident, the purchase of ground upon which to erect a 
 market building.' If the title to land purchased for the 
 erection of a market house be taken by the municipal cor- 
 poration in fee, no length of use of the same for a market 
 will dedicate it for market purposes ; and the markets may 
 be abandoned or changed at the will of the council, and the 
 land thus acquired and held be sold-.' It is incident to the 
 
 583 ; Municipality v. Cutting, 4 La. An. 335 ; Morano v. Mayor, 3 La. 318 ; 
 St. Paul V. Coulter, 13 Minn. 41 ; Atlanta v. White, 33 Gfeo. 229. 
 
 The power to establish and regulate markets, like most other municipal 
 powers, is a continuing one, and markets once established maybe abandoned 
 or changed at the pleasure of the coiporation, and the tax-payers or prop- 
 erty owners cannot restrain the action or determination of the council en- 
 trusted by the charter with the exercise of the power. Gall v. Cincinnati, 
 18 Ohio St. 563, 1869. 
 
 1 Spaulding ». Lowell, 33 Pick. 71, 1839. If the real and principal 
 object is the building of a market house, the appropriation of a portion of 
 the building for other purposes, as the holding of courts, does not render 
 (he erection of the building illegal. If, however, the building of the 
 market house is merely colorable, that is, done for the purpose of accom- 
 plishing distinct and unauthorized objects, it would, says Chief Justice ShoM, 
 probably be treated as an abuse of uower and a nullity. Ih. 
 
 2 Ketchum v. Buffalo, 14 N. Y. 356; 17 IT. Y. 449; Caldwell «>. Alton, 
 33 111. 416. It is immaterial whether this power is conferred in express or 
 diiect terms, or given only as part of the power to make by-laws, ordi- 
 nances, &c. Per 8elden, J., in Ketchum v. Buffalo, 14 N. Y. 356, 362. 
 Purchase of land for market. People ». Lowber, 38 Barb. 65 ; S. C. more 
 fu'.ly, 7 Abb. Pr. Rep. 158; Gale v. Kalamazoo, 33 Mich. 344, 1871. 
 
 " Gall «. Cincinnati, 18 Ohio St. 568, 1869. 
 
416 MUNICIPAL CORPOEATIONS. [Ch. XH. 
 
 general power to build a market to determine nppn the 
 form, dimensions, and style of the edifice, and therefore to 
 employ an architect to prepare plans, specifications, &c.' 
 
 § 316. But power to a municipal corporation to establish 
 markets and build market houses will not give the author- 
 ity to build them on a public street. Such erections are 
 nuisances though made by the corporation, because the 
 street, and the entire street, is 'for the use of the whole 
 people. They are nuisances when built upon the streets, 
 although sufficient space be left for the passage of vehicles 
 and persons. Such erections may, it seems, be legalized by 
 an express act of the legislature. But unless so legalized, 
 a nuisance erected and maintained by a public corporation 
 may be proceeded against, criminally or otherwise, the same 
 as if erected by private persons." 
 
 § 317. Every municipal corporation which has power to 
 make by-laws and establish ordinances to promote tbe gen- 
 eral welfare, and preserve the peace of a town or city, may 
 fix the time or places of Tiolding public marJcets.ioT \h.Q sale 
 of food, and make such other regulations concerning them 
 as may conduce to the public interest.' The right to estab- 
 lish a market includes the right to abandon it, or shift it to 
 another place when the public convenience demands it, and 
 of this the council is the judge.* 
 
 ' Peterson ®. Mayor, &o. of New York, 17 N. T. 449, 1858. His unauthor- 
 ized employment by a committee is ratified by a resolution of the council 
 passed with notice of the facts, adopting his plans, drawings, &c., and he 
 may recover of the city for the labor and service of preparing them. Ih. 
 
 « Wartman ®. Philadelphia, 33 Pa. St. 302, ,310, 1854 ; St. John v. New 
 York, 3 Bosw. (N. Y.) 488; State ®. Mobile, 5 Port. 379, 1837; Common- 
 wealth «. Bush, 14 Pa. St. (3 Harris) 186; Commonwealth r>. Bowman, 3 
 Pa. St. (3 Barr ) 203, 306. See chapter on Streets, post, sec. 531. Under 
 the Constitution of New Jersey, the legislature cannot authorize a market 
 in the public streets without providing compensation to adjoining lot 
 owners. State v. Laverack, 84 N. J. Law, 301, 1870. 
 
 ' Per Black, C. J., Wartman «. Philadelphia, 83 Pa. St. 203, 309, 1854. 
 Note his observations in this case upon the necessity and convenience of 
 markets. 
 
 * 11. "The right to establish markets is a branch of the sovereign 
 
Ch. Xn.] EELATINa TO PUBLIC HEALTH, &o. 417 
 
 § 318. Nature of Power to Establish and Regulate.— 
 A city corporation was invested by its charter with power 
 "to erect market houses, to establish markets and market 
 places, and to provide for the government and regulation 
 thereof," and it was at first decided, and in the author's 
 judgment properly decided, by the Supreme Court of the 
 state, that this did not authorize the corporation to pass an 
 ordinance delegating to an individual the right to erect 
 market houses, and to charge rent for the use of the stalls 
 therein, reserving to itself no power to control the same, 
 and that the corporation could not compel persons to go to 
 such markets ; but subsequently this ruling was reversed, 
 and it was held that such an ordinance was valid, and that 
 the city had the power to authorize the erection of market 
 houses by an individual, and to declare the same a public 
 market, and to covenant to protect the owner in the exclu- 
 sive privilege thereof ; and that the city was liable for fail- 
 ing to protect him by the passage of the requisite ordi- 
 nances, he having, on the faith of the ordinance, erected an 
 expensive market house.' 
 
 power, and the right to regulate them is necessarily a power of municipal' 
 police." Per Eustes, C. J., Municipality «. Cutting, 4 La. An. 335. 
 
 ' Le Claire i>. Davenport, 13 Iowa, 310, 1863 ; overruling, Davenport ■». 
 Kelly, 7 Iowa, 103. It may be suggested that the right to pass such an or- 
 dinance, and the liability for failing to pass others, may admit, at least, of 
 fair debate, in view of the surrender by the cityof its charter powers, and its 
 inability in law to make binding contracts with reference to the future ex- 
 ercise of its .legislative authority. The soundness of this suggestion ia con- 
 firmed by the decision in Q-ale v. Kalamazoo, 33 Mich. 344, 1871. Post, sec. 
 754. In the Kelly case, supra, the point was decided, and is not overruled, 
 that the charter power to establish markets, &c., conferred upon the coimcil 
 the authority to prohibit the exposing and offering for sale meat in any 
 other places than those the ordinance designated. Ash v. People, 11 Mich. 
 347; Hatch v. Pendergast, 15 Md. 351. 
 
 A city in granting a license and selling to a party the right to occupy a 
 stall in the market does not impliedly coTaSnajcst to protect the lessee from 
 competition by unlicensed persons ; nor can such a contract be implied 
 against the corporation from the existence of an ordinance prohibiting the 
 same ; and the failure of the officers of the corporation, though willful, to 
 enforce the ordinance against unlicensed sellers, is no defence to a bond 
 given by the lessee for the payment of stall rent. Pecks. Austin, 33 Texas, 
 261, 1858. Nor does a city owning and leasing a market house impliedly 
 engage or covenant that it will not exercise its power to establish markets 
 27' 
 
418 MUNICIPAL CORPORA 1 IONS. [Ch. XH. 
 
 § 319. Construction of Special Powers in Belation to 
 MarJcets. — Power to make "by-laws relative to tlie public 
 markets," &c., while it would not authorize a corporation 
 entirely to prohibit the sale of meats, &c., within its limits, 
 because this would be in general restraint of trade, will 
 nevertheless authorize a bylaw forbidding the hawMng 
 about or selling hy retail meats, &c., except at the public 
 markets and within certain linnts about the same." The 
 courts differ somewhat in their construction of the extent of 
 power to establish and regulate markets, as will be seen by 
 the cases cited in the note.' 
 
 by erecting other market houses and" leasing them to others; if it does so, 
 the injury to the first lessees is damnum absque irtjuria. Congot «. Kew Or- 
 leans, 16 La. An. 21, 1861. As to duty of corporation -where they sell or 
 farm out an exclusive privilege to vend articles, to enforce ordinances de- 
 signed to protect the privilege : La Rosa ». Mayor, 4 La. 34 ; Same v. Same, 
 1 It. 136 ; Mayor, &c. v. Peyroux, 6 Martin (La.) 155 ; Griffin v. Mayor, 5 
 Martin (La.) 379. City corporation cannot agree to abdicate its legislative 
 powers in relation to markets, nor contract to create a monopoly. Gale ». 
 Kalamazoo, 33 Mich. 344, 1871. Ante, sec. 296. 
 
 ' Buffalo t. Webster, 10 Wend. 100, 1833. Chief Justice Bwnage affirms, 
 arguendo, that such to ordinance would be valid under the common law 
 power of corporations to make by-laws for the general good of the corpora- 
 tion. 11. Approving Pierce •». Bartram, Cowp. 369; following Bush v. 
 Seabiiry, 8 Johns. 418, 1811, and distinguished from Bunham «. Rochester, 
 5 Cow. 462; Shelton ». Mobile, 80 Ala. 540, 1857. "The fixing the place 
 and times at which markets shall be held and kept open," says the Supreme 
 Court of New York in Bush v. Seabury, 8 Johns. 418, " and the prohibition 
 to sell at other places and times, are among the most ordinary regulations 
 of a city or town police, and would naturally be included in the general 
 power to pass by-laws relative to the public markets. If the corporation 
 had not the power in question, it is difficult to see what useful purpose 
 could be effected, or what object was intended, by the grant of power to 
 pass laws ' relative to the public markets.' " 
 
 '' Power to make ordinances concerning " markets, health, and good or- 
 der " of the town, authorizes an ordinance prohibiting the sale of butcher's 
 meat within the corporate limits, excepting at the public market, Winsboro 
 V. Smart, 11 Rich. (South Car.) Law, 551, 1858. It seems the defendant was 
 convicted, though he sold the meat inside his own blacksmith shop. Such 
 ordinances are sustained, says the court, on the ground that they are not in 
 restraint of trade, but a proper regulation of it. IK So, in the City of St. 
 Louis ». Jackson, 35 Mo. 37, 1857, where it appeared that the city, under 
 proper authority, had erected a public, or city, market-house, and that by 
 its charter it had power also, " to regulate," by ordinance, the sale of meats, 
 it was held that this gave the city authority to provide, by ordinance, that 
 
Cb. XI.] RELATING TO MAEKETS, &o. 419 
 
 § 320. In a well considered case in Massachusetts it is 
 decided that a city corporation has the clear right to pro- 
 
 " no person, not a lessee of a stall in the market, shall sell, or ofEer for sale, 
 meat in less quantities than one quarter." The court considered such an 
 ordinance as reasonable, highly proper, and not in restraint of trade, and 
 not embraced in the reasoning in the case of Dunham v. Trustees of Roches- 
 ter, 5 Co*. (N. T.) 463; S. P., see, also, St. Lou;s «. Weber, 44 Mo. 547, 
 1869; Le Claire J). Davenport, 13 Iowa, 210; Davenports. Kelly, 7 Iowa, 103; 
 Ash V. People, 11 Mich. 347. But in Caldwell «. Alton, 33 111. 416, 1864, 
 where the city, by its charter, had power " to estahUsh and regulate ma/rhets," 
 and under the power passed an ordinance forbidding, during market hours, 
 the sale of vegetables outside the limits of the market, it was held that the 
 city could not restrain a regular dealer or merchant from vending vegeta- 
 bles at his place of business outside of market limits during any part of the 
 day, such a restraint of trade being unreasonable. The court reviewed 
 many of the cases in other states on this subject, and were of opinion that 
 the power to regulate could only extend to the market limits, and that 
 these limits could not, under this power, be made to extend throughout the 
 city. The court adhered to its views in a subsequent case in which it was 
 held that power "to erect market houses, establish markets and market 
 places, and provide for the government and regulation thereof," does not 
 authorize the council of a large and growing town to fix upon one market 
 place, and prohibit all persons at all hours of the day from selling fresh 
 meats elsewhere. Such ao ordinance was regarded as unreasonable, in 
 restraint of trade, and tending to create a monopoly. It was admitted, 
 however, that if the ordinance had fixed a reasonable number of. hours 
 each day in which the prohibition should operate, leaving persons free to 
 sell outside of market hours, it would probably be unobjectionable. Bloom- 
 ington «. Wahl, 46 111. 4:89, 1868. So, in Bethune ». Hughes, 38 Geo. 560, 
 1859, the court, leaning against exclusive privileges, held that power by 
 the charter to the corporation "fo establish and keep up a public market in 
 the city for the sale of," &c.,does not confer upon the city power to pass an 
 ordinance prohibiting the sale of marketable articles elsewhere than at the 
 market place. S. P. St. Paul v. Laidler, 3 Minn. 190, 1858; commented on 
 and disapproved in St. Louis v. Weber, 44 Mo. 547, 1869; see St. Paul v. 
 Coulter, 13 Minn. 41. An ordinance regulating the killing and bleeding 
 of meats is authorized by power to regulate butchers, the place and mode 
 of selling, and to prevent unlicensed persons from acting as butchers. City 
 of Brooklyn «. Cleves, Hill & Denio, Suppl. 331, 1843. Under power to 
 regulate the vending of meats, a conviction under an ordinance forbidding 
 the sale of unwholesome meats and other provisions cannot be sustained for 
 selling putrid eggs. Mayor, &c. of Rochester v. Rood, Hill & Denio, SuppL 
 146. 
 
 By the Municipal Act of Canada the Council may pass by-laws " for 
 establishing and regulating all markets; for preventing or regulating the 
 sale by retail in the public streets of any meat, vegetables, fruit, or bever- 
 ages; for regulating the place and manner of selling and weighing butcher's 
 
420 MimiCrPAL CORPORATIONS. [Ch. Xn. 
 
 Mbit, by ordinance, the occupation of a stand, for the vend- 
 ing of commodities, in the streets. It may thus prohibit 
 not only its own inhabitants, but others. It may make the 
 prohibition absolute, or it may make it conditional on 
 obtaining license or permission. It is in the nature of a 
 police regulation, and does not violate private rights or im- 
 properly restrain trade.' 
 
 meat, fish, hay, straw, fodder, wood, aSd. lumber, &c. Harr, Munic. 
 Manual, 3d ed. p. 338. The following cases, digested by Mr. Harrison, show 
 the judicial construction of the act : 
 
 The power is to regulate all markets established, apparently including 
 those established by the Crown as well as those established by municipal 
 authority. Regulation must of necessity include the appropriation of one 
 or more parts of the market for one purpese and other part or parts for 
 other purposes ; of providing that free passage through the market be kept 
 open for ready access to shops, stalls, or other places where different com- 
 modities are exposed for sale. Per Draper, C. J., in Kelly and the Corpora- 
 tion of the City of Toronto, 33 U. 0. Q. B. 436. 
 
 A by-law enacting " that no butcher or other person shall cut up or ex- 
 pose for sale any fresh meat in any part of the city except in the shops and 
 stalls in the public markets, or at such places as the Standing Committee on 
 Public Markets may appoint, " was held good. It. But a by-law enact- 
 ing " that no person should expose for sale any meat, fish, poultry, eggs, 
 butter, cheese, grain, hay, straw, cord-wood, shingles, lumber, flour, wool, 
 meal vegetables, or fruit (except wild fruit), hides or skins, within the 
 town, at any place but the public market, without haying first paid the mar- 
 ket fee thereon as therein provided, except all hides and skins from animals 
 slaughtered by the licensed butcher of the corporation holding a stall in 
 the market," was held bad. In re Fennell and the Corporation of the Town 
 of Guelph, 34 U. C. Q. B. 338. Also, "that meat, fish, poultry, eggs, cheese, 
 grain, hay, straw, cord-wood, shingles, lumber, flour, wool, meal, 'oe-geUMes or 
 fruit (except Wild fruit), should not be exposed for sale within the muni- 
 cipality except ia the market, before 13 o'clock, noon," was held bad as to 
 the articles mentioned in italics. Ih. 
 
 ' Nightingale, Petitioner, &c., 11 Pick. 168, 1831. In this case the ordi- 
 nance of the city (Boston) provided " that no inhabitant of the city of Bos- 
 ton, or of any town in the mdniiy thereof, not oflering for sale the produce 
 of his own farm, &c., should, without the pennission of the clerk of Faneuil 
 Hall market, be suffered to occupy any stand with cart, sleigh, or otherwise, 
 for the purpose of vending commodities in either of the streets mentioned 
 in the first section of this ordinance," &c. It was objected against this 
 ordinance t'\at it was void : 1. Because it was partial, not operating upon 
 all the citizens of the state equally. 3. Because it was uncertain, the term 
 " vicinity " being indefinite. And, 3. Because it was in restraint of trade. 
 But neither of these objections was considered tenable. The validity of 
 Buch an ordinance was again affirmed by the same court in Commonwealth 
 
Ch. Xn.] RELATING TO MARKETS, &o. 431 
 
 § 221. But authority to erect a market, and power " to 
 regulate the general police," and "to preserve the peace 
 and good order of the city," do not authorize the corpora 
 tion to impose a tax for revenue purposes upon persons oc- 
 cupying market stands in the streets, or selling produce 
 therein. Such a power must be plainly conferred or it will 
 not be held to exist.' 
 
 § 322. The right to regulate markets established by a 
 dty under its charter is one of municipal police. The city 
 authorities may say what articles shall or shall not be sold 
 at the public markets, and may impose penalties on those 
 who violate their ordinances. They may, for example, 
 prohibit groceries and oysters from being sold at the public 
 markets, and require oysters, which have a great tendency 
 to putrefaction, to be sold at certain designated stands, and 
 prevent their being sold elsewhere." 
 
 § 323. Inspection Ordinances. — A municipal corpora- 
 tion, says Mr. Willcock, may regulate the manner of carry- 
 ing on trade within a municipality so far as to prevent 
 
 V. Rice, 9 Met. 353, 1845. See this case, also, as to requisites, in certain 
 respects, of complaints for the violation of such an ordinance, and as to 
 what acts will be deemed to be violations. Shelton v. Mayor, &c. of Mobile, 
 30 Ala. 540, 1857 ; Wartman v. Philadelphia, 83 Pa. St. 203, 1854. An 
 ordinance forbade the sale of fresh meats except by persons licensed, but 
 contained a proviso in favor of farmers, authorizing them to sell meats, the 
 produce of their oifn fa/rms. The evident object was considered to be to 
 protect licensed iutehers, and at the same time to allow farmers to come in 
 and sell the produce of their own farms. It was held that an unlicensed 
 butcher was not a '■^farmer " within the meaning of the proviso, although the 
 meats which he sold came from sheep fattened on his farm, if the farm was 
 only a convenient appendage to Ms business as a butcher. Rochester ». 
 Pettinger, 17 Wend. 265, 1837. 
 
 ' Kip v. Patterson, 3 Dutch. (N. J.) 298, 1857. This power, it was said, 
 would authorize " the renting of stalls in the market house, and perhaps of 
 even prohibiting sales in the public streets.'' Jb. per Elmer, J. 
 
 ' Municipality v. Cutting, 4 La. An. 335, 1849 ; Morano ■». Mayor, 2 La. 
 218. Power of city to vacate leases and stalls in public market, under ordi- 
 nance reserving the right, see City Council v. Goldsmith, 2 Speer's (South 
 Car.) Law, 438. Occupant of city market failing to pay rent in advance, 
 according to contract, held a tenant at will. Dubuque ®. Miller, 11 Iowa, 
 503. Control over tenants. Woelpper v. Philadelphia, 38 Pa. St. 303. 
 
422 MUlSrrCIPAL COEPOEATIONS. [Ch. XIL 
 
 monopoly, or the sale of unfit commodities, and to insure 
 proper conduct in those who practice it within their jurisdic- 
 tion.' In general, it may be said, that incorporated cities 
 and larger towns in this country have conferred upon them 
 the power to pass ordinances regulating, to a reasonable 
 extent, the mode in which the traffic of the place shall bs 
 conducted ; but they can exercise no powers in this respect 
 not conferred." Laws requiring articles to be inspected or 
 weighed and measured before being sold, are in the nature 
 of police regulations, and are valid in the absence of special 
 constitutional provisions. When reasonable in their nature, 
 they are not regarded as being in restraint of trade.' 
 
 § 324. Power to a city "to regulate the public market, 
 and to pass such other ordinances as shall seem meet for 
 the improvement and good government of the city," au- 
 thorizes an ordinance requiring oats, hay, &c., to be weighed 
 
 • Willc. Corp. 143, pi. 333. 
 
 ' Nightingale's Case, 11 Pick. 108; Stokes ®. New York, 14 Wend. 87; 
 Baleigh v. Sorrell, 1 Jones (North Car.) Law, 49 ; Chicago v. Quimby, 88 
 HI. 274, 1858 ; Howe ®. Norris, 13 Allen, 83 ; Libbey v. Downey, 5 Allen, 
 399 ; CoUins ». Louisville, 3 B. Mon. 134, 1841. Power to appoint measurers 
 of wood, and affix a reasonable allowance to them, does not justify the im- 
 position of a tax for revenue. lb. 
 
 '' Cooley Const. Lim. 596; Baleigb «. Sorrell, supra; Stokes «. New 
 York, supra; Page «. Pazakerly, 36 Barb. 393 ; Mayor, &c. of New York v. 
 Nichols, 4 Hill (N. Y.) 309, 1843; compare Mayor v. Hyatt, 3 E. D. Smith, 
 156 ; Eogers «. Jones, 1 Wend. 387 ; Yates «. Milwaukee, 13 Wis. 673. The 
 system of inspection laws, and the hosts of officers which they engendered, 
 were considered by the constitutional convention of New York to entail 
 annoyances and burdens upon the community sufficient to outweigh any 
 benefits resulting from them ; and the constitution of 1846 (art. V, sec. 8) 
 abolished all such offices and forbade the legislature to re-create them, in 
 this language : " All offices for the weighing, measuring, culling, or inspect- 
 ing of any merchandise, produce, manufacture, or commodity whatever, are 
 hereby abolished, and no such offices shall hereafter be created by law." 
 See Tinkham b. Tapscott, 17 N. Y. 144, 147, 1858, where the origin, scope, 
 and purpose of this provision are very satisfactorily discussed by Denio, J. 
 In Illinois it is held that inspection power conferred upon a board of trade, 
 to be exercised when requested by its members, may co-exist with like 
 power in the city authorities to be exercised in all cases when requested. 
 Chicago «. Quimby, 38 111. 374, 1858. 
 
Ch. Xn.] RELATING TO MARKETS, &c. 423 
 
 by the public weigbmaster before being offered for sale, and 
 imposing a penalty for its violation.' 
 
 § 325. A grant to the common council of " all powers, 
 rights, &c., incident to municipal corporations and necessary 
 to the proper government of the same," might authorize a 
 city to prevent the sale of bread made out of unwholesome 
 flour, and, as a consecLuence, to provide for its inspection, 
 but it would not give the power to regulate the assize, that 
 is, the weight and price of bread, for the latter is a power 
 not absolutely necessary for the proper government of a 
 city. Power, however, to a city, ' ' to regulate everything 
 which relates to bakers," does authorize an ordinance 
 regulating the weight, size, and, it seems, the price, of bread, 
 and the forfeiture of bread illegally baked; and such an 
 ordinance, it has been held, is not in violation of any pro- 
 vision of the constitution of Louisiana.' 
 
 § 326. Police Regulations Respecting the Public 
 Peace and Safety. — Our city governments usually possess 
 the power, either by express grant or by virtue of their au- 
 thority to make by-laws relating to the public safety and 
 good order of the inhabitants,* to regulate the rate of speed 
 of travel in the public streets ; the route or streets over 
 which omnibuses, stage-coaches, drays, &c., may run ; the 
 time of day in which the streets may be used for certain 
 purposes ; to interdict stoppages in the street to the delay 
 of others ; to exclude vehicles of aU kinds from entering 
 upon or passing over the sidewalks, &c., &c. The public 
 
 ■ Raleigh s. Sorrell, 1 Jones (North Car.) Law, 49, 1853; approTing 
 Nightingale's Case, 11 Pick. 108 ; Stokes «. Corporation of New York, 14 
 Wend. 87. This power was also held to authorize the creation of the office 
 of weighmaster and the payment of his salary, 1 Jones, 49, supra. Con- 
 struction of ordinance as to weighing hay on public scales. Goss ». Corpo- 
 ration, &c., 4 Sneed (Tenn.) 62; Yates ®. Wilwaukee, 12 Wis. 673. Con- 
 struction of statute as to mode of measuring grain. Frazier ®. Warfleld, 13 
 Md. 379. Of ordinance as to survey of lumber before sale. Briggs «. Boat, 
 7 Allen, 387. 
 
 " Guillotte ». New Orleans, 13 La. An. 432, 1857 ; Page v. Fazakerly, 
 36 Barb. 393. But as to forfeiture, quaire, in absence of express power, and 
 see Phillips «. Allen, 41 1'a. St. 481 ; Mayor, &c. of Mobile «. Yuille, 3 Ala 
 139. 
 
424 MUNICIPAL CORPORATIONS. [Ch. XH. 
 
 safety and convenience may require regulations of this 
 character ; but they must not, unless made by virture of 
 specific authority, be unreasonable or improperly in re- 
 straint of trade.' Power to make by-laws for "the good 
 rule and government " of the borough {ante, sec. 271), has 
 reference to the government of the borough as a corpora- 
 tion, and the making of regulations for carrying into effect 
 the purposes for which it was incorporated ; but it does not 
 enable a town council to carry (fat any peculiar ideas of 
 general good government, and to impose penalties for the 
 doing of things which are not proMbited by any public 
 statute, nor by the common law." 
 
 § 327. Under a general power to make "needful and 
 
 ' Commonwealth «. Stodder, 3 Cush. 563, 1848, where the subject of the 
 power of cities over streets, particularly in reference to omnibuses, is fully 
 considered by Mr. Justice Demey ; Commonwealth «. Robertson, 5 Cush. 
 438, 1850, as to stoppages in streets contrary to ordinance ; Baker v. City of 
 Boston, 13 Pick. 184, 1831 ; "Vanderbilt «. Adams, 7 Cow. 349 ; II. 885 ; Aus- 
 tin B. Murray, 16 Pick. 136. Power to a city ' ' to regulate the running of rail- 
 road cars," authorizes the adoption of 'an ordinance prohibiting the pro- 
 pulsion of cars by steam within the (jorporate limits. Railroad Company 
 s. Buflalo, 5 Hill (N. T.) 209, 1843. Post, chapter on Streets, sec. 565. 
 In Napman ;;. People, 19 Mich. 353, 1869, a lawful arrangement between 
 a railroad company and an omnibus company as to the delivery of passen- 
 gers was held to be beyond municipal interference. 
 
 A by-law prohibiting rapid d/riving in the streets of a city by carters and 
 others is not in restraint of trade, and is reasonable and valid ; and in a 
 prosecution for its violation, it is not necessary to prove that any individual 
 was actually endangered by the fast driving. As the mayor and aldermen 
 have no authority to give a person permission to violate an ordinance, evi- 
 dence of such permission, as well as evidence of the defendant's general 
 character as a careful driver, is inadmissible. Commonwealth ». Worcester, 
 3 Pick. 463, 1826; Commonwealth «. Stodder, 3 Cush. 563, 570, 1848; Wash- 
 ington V. Nashville, 1 Swan, 177. Post, chapter on Streets, sec. 565. 
 
 There is no obligation, in the absence of a valid municipal by-law or stat- 
 ute, on the part of people to keep roofs dear of snow, or to detain the snow 
 so that it cannot slide into the street, though there may be, it seems, such a 
 faulty construction of roof, as on proof thereof, would involve a liability on 
 the part of the owner or occupier for accidents. Lazarus i>. Toronto, 19 
 Upper Can. Q. B. 13, per BoMnson, C. J. Seejpos*, sec. 788, note, and cases 
 cited. 
 
 » Addison on Torts, 34; Rex v. Westwood, 4 B & C. 781; Reg. v. 
 Wood. 5 Ell. & Bl. 55. 
 
Ch. XI.J EESPECTma PEACE AND SAFETY. 425 
 
 salutary by -laws," a city ordinance of Boston, requiring the 
 tenant or occupant, or, in case there shall be no tenant, the 
 owners of buildings bordering on certain streets, to clear 
 the snow from the sidewalks adjoining their respective 
 buildings, is reasonable and valid. It was objected against 
 this ordinance that it violated the fundamental maxim, that 
 all burdens and taxes laid upon the people for the public 
 good shall be equal. The objection was overruled. And it 
 was justly regarded by the court as in the nature of a police 
 regulation, requiring a duty to be performed highly 
 salutary and advantageous to the citizens of a populous and 
 closely built city, and imposed upon the persons named be- 
 cause they are so situated, as that they can promptly and 
 conveniently perform it ; and it is laid not uf)on a few, but 
 upon a numerous class, and equally upon all fvho are 
 within the description composing the class and who com- 
 monly derive a j)eculiar benefit from the duty required. It 
 would doubtless be otherwise if the ordinance arbitrarily 
 imposed this duty upon the mechanics, or merchants, or 
 any other class of citizens between whose convenience and 
 the labor required there is no natural relation.' 
 
 § 328. The power to make "salutary by-laws," with 
 respect to the use of streets, will, it seems, authorize a city 
 to pass by-laws regulating the removal of buildings, and 
 the temporary use of the streets and highways for that 
 purpose.' 
 
 § 329. Ordinances under Police Power and General 
 Welfare Clause. — Other illustrations of what a municipal 
 corporation may due under the general welfare clause in its 
 organic act, or under its police power or its implied right to 
 
 ' Goddard, Petitioner, &o., 16 Pick. 604, 1835; Union Eailway Company 
 V. Cambridge, 11 Allen, 387; Kirbyii. Boylston Market Association, 14 Gray, 
 253. Post, sec. 788. 
 
 ' Day V. Green, 4 Cu8h.'433, 437, per Sham, C. J. And where such a by- 
 law prohibits the moving without a license granted by the mayor and alder- 
 men, a license granted by the mayor is void, even though thie board >.f 
 aldermen, by a vote, had previously undertaken to delegate the power to 
 grant such license to the mayor alone. The by-law contemplates that the 
 mayoi and aldermen should act unitedly as one body. li. 
 
426 MUNICIPAL C0EP0RATI0N8. 'LCh. XL 
 
 pass by-laws, or under a general grant of authority for that 
 purpose, may be here given. 
 
 Under authority " to ordain and publish such acts, laws, 
 and regulations, not inconsistent with the constitution and 
 laws of the state as shall be needful to the good order of the 
 city," it can, says Howard, J., "subject to these restric- 
 tions and certain statute regulations, establish all suitable 
 ordinances for administering the government of the city, 
 the preservation of the health of 4he inhabitants, and the 
 convenient transaction of business within its limits, and for 
 the performance of the general duties required by law of 
 municipal corporations.'" 
 
 § 330. Power to pass such ordinances "to maintain the 
 peace, good government, and order of the city, and the 
 trade, commerce and manufactures thereof, as the council 
 may deem expedient, not repugnant to the constitution and 
 laws of the state," authorizes an ordinance prohibiting the 
 keeping open of stores, shops, and places of business on 
 Sunday, if its provisions do not conflict with state legisla- 
 tion." But the general welfare clause does not authorize a 
 
 ' Per Howard, J., State «. Merrill, 37 Maine (2 Heath), 229, 1853. Such 
 would uttdoubtedly be the proper construction if this were the only power 
 given to the city to pass ordinances or by-laws. It should then be some- 
 what liberally construed. But,if such a general grant is given in connec- 
 tion with, or at the end of, a long list of specific powers, perhaps so ex- 
 tended a construction might not then be due to it. The power conferred by 
 general welfare clause is restricted by reference to other provisions of the 
 charter or constituent act. City Council «. Plank Road Company, 81 Ala. 
 76, 1857 ; Mount Pleasant ®. Breeze, 11 Iowa, 399, 400, 1860, per Wright, J. 
 
 « St Louis V. Caflferata, 34 Mo. 94, 1856 ; see State a. Cowan, 29 1 i. 380 ; 
 State V. Ams (constitutionality of Sunday laws affirmed), 20 Mo. 214 ; 8. P. 
 Frolichstein B. Mobile, 40 Ala. 725, 1867; Hudson o. Geary, 4 Rh. Is. 485, 
 1857; Specht v. Commonwealth, 8 Pa. St. 312; Cincinnati «. Rice, 15 Ohio, 
 225 ; Karwisch v. Atlanta, 44 Geo. 204, 1871. In the case of the City Coun- 
 cil V. Benjamin, 2 Strob. (South Car.) Law, 508, 1846, it was decided by the 
 Court of Appeals of South Carolina, that an ordinance of the city of 
 Charleston, prohibiting "public exposures for sales, or sales of merchandise, 
 on Sunday," was not a violation of that section of the state constitution which 
 declares that "the free exercise and enjoyment of religious profession or 
 worship, without diBcrimination or preference, shall forever hereafter be 
 allowed within this state to all mankind." In that case the defendant was 
 a Jew, and the city was not denied to be possessed of aU the power on the 
 
Ch. XI.] ORDINANCES UNDER WELFARE CLAUSE. 427 
 
 city to construct, or aid in constructing, a plank road or 
 toll bridge built by a private companv beyond the corporate 
 limits of the city.' 
 
 § 331. The general welfare clause to pass ordinances for 
 the good government, &c., of the corporation, does not au- 
 thorize an ordinance requiring the proprietor of a theatre, 
 circus, or other exhibition licensed by the corporation, to 
 pay a peace or police officer of the place two dollars, or 
 any sum, for each night's attendance upon such place for 
 the purpose of enforcing order. Such an ordinance is un- 
 reasonable, and can only be passed when clearly authorized." 
 
 § 332. Where a city corporation is authorized " to ordain 
 such laws not inconsistent with the constitution and laws of 
 the state as shall be needful to the good order of the city," 
 it may pass an ordinance imposing a penalty upon any per- 
 son who shall mutilate or destroy any ornamental tree 
 planted in the streets, lanes, or other public places within 
 the limits of the city." Such an ordinance is not inconsist- 
 ent with a state law punishing the malicious or wanton 
 destruction of trees growing for ornament or use. Under 
 the ordinance it is not necessary to allege or prove that the 
 mutilation was malicious or wanton, and it would seem to 
 be considered that it was no defence that the tree alleged to 
 be mutilated was upon the street in front of the lot of the 
 accused, who owned, subject to the public easement, ad 
 medium filum mm.' 
 
 subject which the legislature could constitutionally bestow. In the case of 
 Columbia b. Duke and Marks, cited 2 Strob. 530, and approved, a similar 
 decision was made at nuiprma by Mr. Justice Martin. And in this last case 
 is was further ruled, that power in the charter to " establish such by-laws 
 as may tend to the quiet, peace, safety, and good order of the inhabitants," 
 authorized the passage of such an ordinance. Under " full power to pass 
 such ordinances as the city council shall deem expedient for the govern- 
 ment of the city, not contrary to the constitution of the state or the United 
 States," a city may prohibit, within its limits, the sale of liquor on Sunday. 
 Megowan v. Commonwealth, 3 Met. (Ky.) 3, 1859 ; State v. Welch, 86 Conn. 
 215, 1869. 
 
 ' City Council v. Plank Road Company, 31 Ala. 76, 1857. Ante, sec. 106. 
 
 ' Waters v. Leech, 3 Ark. 110, 1840. Bupra, sec. 253. 
 
 • State ». Merrill, 37 Maine (2 Heath), 329, 1858. Contra as to right of 
 
428 MmnCIPAL CORPORATIONS. [Ch. XH. 
 
 333. Under a general power to pass "any other by-laws 
 for the well-being of the city," its conncil may, by ordi- 
 nance, prohibit saloons, restaurants, and other places of 
 public entertainment, to be kept open after ten o'clock at 
 night. The objections that such a by-law was unreasonable, 
 and deprived the citizen of the constitutional right of "ac- 
 quiring property," were not considered to be well taken. 
 It regulates, but does not deprive the party of his rights.' 
 
 § 334. Power " to regulate the police of the city," and 
 to pass ordinances not inconsistent with law, authorizes an 
 ordinance for arresting and fining vagrants, although, by 
 the general law of the state, vagrants may be proceeded 
 against befoi-e a justice of the peace, the court considering 
 that this did not forbid the corporation from making a local 
 regulation on the same subject not in conflict with the gen- 
 eral law.' 
 
 adjoining owner. Lancaster v: Richardson, 4 Lansing (N". T.) 136, 1871, 
 see post, sec. 534, note. The case in Maine is a quite liberal constmction 
 of the words good order. But it is necessary that cities should have such 
 an authority, and the power to pass the ordinance could, perhaps, be sus- 
 tained as incidental to the power of the city over its streets and public places. 
 Posi, chapter on Streets. 
 
 ' The State ®. Freeman; 38 N. H. 436, 1859; following and approving on 
 this point, State «. Clark, 8 Fost. (N. H.) 176; Morris v. Rome, 10 Geo. 
 533, 1851; Hudson «. Geary, 4 Rh. Is. 485, 1857. '-It is an unavoidable 
 consequence of caty ordinances, that they in some degree interfere with the 
 tmlimited exercise of private rights." Per BeU, J., in State v. Freeman, 38 
 N. H. 438; State e. Welch, 86 Conn. 315, 1869. 
 
 ' St. Louis o. Bentz, 11 Mo. 61, 1857; distinguished from Jefferson City 
 p. Courtmire, 9 II. 693, which was a summary proceeding for an indictable 
 offence. See State v. Cowan, 29 Mo. 330; Byers «. Commonwealth, 42 Pa. 
 St. 89, per Btrong, J. ; Shafer a. Mumma, 17 Md. 331, 1861. Supra, sec. 
 303. 
 
 A gtatute by which "two or more overseers of the town " were author- 
 ized to commit to the workhouse until discharged by law, by writing under 
 their hands, to be there employed and governed according to the rules and 
 orders of the house," &c., " all persons, able of body to work, and not hav- 
 ing estate or means otherwise to maintain themselves, who refuse or neglect 
 to do so, live a dissolute, vagrant life, and exercise no ordinary calling or 
 lawful business sufficient to gain an honest livelihood," does not violate the 
 constitutional right to "life and liberty," or the right, in " criminal pro- 
 ceedings, to be heard by counsel, confronted vrith witnesses," &p. The 
 eourt did not regard it as a criminal proceeding, but as a reformatory or 
 
Cn. Xn.] GEKEKAL WELFARE CLAUSE— CONTINUED. 439 
 
 § 335. By virtue of its police power, a municipal cor- 
 poration may pass an ordinance imposing a fine upon the 
 owner of any animal found estray or at large within the 
 limits of the corporation. 
 
 § 336. If a municipal corporation has, by its charter, 
 power to pass ordinances to preserve the peace and good 
 order of the place, this gives it authority to provide for the 
 punishment, in the manner allowed by its charter, of persons 
 who shall rescue, or attempt to rescue, prisoners from the 
 custody of the municipal officers." But the general power, 
 though expressly conferred, to enact by-laws for the good 
 government of the town, does not confer the power to levy 
 taxes of any kind, not even upon retailers of ardent spirits.' 
 
 § 337. General Welfare Clause — Continued. — ^The gen- 
 eral welfare clause, ia a charter empowering the city council 
 to pass such other ordinances as appear necessary for the 
 security of the city, authorizes an ordinance regulating the 
 mode of keeping and sale of gunpowder within the limits 
 of the corporation, such as requiring all gunpowder brought 
 into the city to be conveyed to the public magazine of the 
 
 correctional one, so far as the person proceeded against was concerned, and 
 designed to protect the community from becoming chargeable with the perr 
 son's support. Adeline Nott's Case, 11 Maine, 308, 1834; 8. P. Portland o. 
 Bangor, 43 Maine, 403, 1856, Bice, J., dissenting. See Byers v. Common- 
 wealth, 43 Pa. St. 89. In a late case in Illinois, the Supreme Court of that 
 state decided that the act creating the Reform School was unconstitutional, 
 and that the act, so far as it restrained liberty for ariy cause except actual 
 crime, was in violation of the Bill of Rights. People v. Turner, 10 Ani. 
 Law Reg. (N. 8.) 366, and approving note of Judge Bedfield ; S. C, 55 111. 
 380. 
 
 > Municipality v. Blanc, 1 La. An. 885, 1846; Case 0. Hall, 31 111. 633; 
 Commonwealth ». Bean, 14 Gray, 53; Commonwealth ■». Curtis, 9 Allen, 
 366; Roberts ■». Ogle, 30 111. 459; McKee v. McKee, 8 B. Mon. 433, 1848; 
 Waco B. Powell (hogs at large), 33 Texas, 358, 1869. Ante, sec. 355, note. 
 Supra, sec. 383. Construction of ordinance prohibiting the suffering of 
 animals to run at large, and what must be shown to subject a person to 
 liability under such an ordinance. CoUinsville v. Scanland, 111. Sup. Court, 
 1873. 
 
 " Independence ®. Moore, 33 Mo. 393, 1863. 
 
 » Coinmissioners of Ashville v. Means, 7 Ire. (Law) 408, 1847; ExparU 
 Burnett, 80 Ala. 461, 1857. Post, chap. XIX. 
 
430 MUNICIPAL CORPORATIONS. [Ch. XH. 
 
 city, except when it is to be retailed, and then to be kept in 
 limited quantities and in secure canisters. And it was so 
 held, notwithstanding the point was made in argument that 
 the general welfare clause in the charter could not enlarge 
 the powers of the corporation further than is necessary to 
 carry into effect the specific grants of power.' 
 
 § 338. Municipal corporations, with power to provide 
 for the safety of their inhabitante, may prohibit the throw- 
 ing of heavy or dangerous articles, from the upper stories 
 of buildings, into the streets or open spaces near them, 
 where persons are in the habit of passing ; and may estab- 
 lish fire limits, and prevent erection therein of wooden 
 building.^ 
 
 § 339. Under authority to make police regulations, or 
 to pass by-laws for the good rule and government of the 
 corporation, it has the power to require Jioistways inside 
 of stores (usually places of public resort) to be enclosed by 
 a railing, and closed by a trap door after business hours 
 each day. It was justly regarded as a reasonable po- 
 
 ' Williams o. Augusta, 4 Geo. 509, 1848; Frederick v. Augusta, 4 / J. 
 561, where the charter of Augusta is more fully given. 
 
 « City Council n. Elford, 1 McMuUen (South Car.) Law, 334, 1841; 
 Brady ». Insurance Company, 11 Mich. 435; Douglas v. Commonwealth, 2 
 Bawle, 363; Wadleigh t. Oilman, 13 Maine, 403; Vanderbilt r). Adams, 7 
 Cow. 349, 353, per Woodruff, J., argitendo. Instance of a want of power to 
 restrict erection of wooden buildings. Mayor, &c. v. Thome, 7 Paige, 361. 
 Cities may constitutionally be authorized to prevent the erection of wooden 
 Jmildings in certain portions thereof. Respublica v. Duqnet, 3 Teates (Pa.) 
 493. In Wadleigh ®. Oilman, supra, itinas decided that the remosa/ of a 
 wooden building to the prohibited district, or even from one part of the 
 district to another, was within the meaning of the term, erection,, as used Jn 
 the ordinance. "The mischief," says Weston, C. J., "did not consist in 
 the act of erecting, but in the continuance of the erection. The ordinance 
 did not meddle with erections as they stood ; this would have transcended 
 their power." Difference between '' erecting " and " repairing." Brady «. 
 Insurance Company, 11 Mich. 425, 449, opinion of GampbeU, J. ; Brown v. 
 Hunn, 37 Conn. 333; Booth b. State, 4 Conn. 65; Tuttle v. State, Ih. 68; 
 Stewart ®. Commonwealth, 10 Watts, 307. Remedy against wrong-doer, 
 by private action in favor of an adjoining owner specially injured by a 
 violation of a statute in relation to- the erection of wooden buildings. 
 Aldrich v. Howard, 7 Rh. Is. 199. See Index— Mre. 
 
Ch. Xn.] MODE OP ENFOKCma OEDINANCES. 43I 
 
 lice regulation not unnecessarily interfering with private 
 rights.' 
 
 § 340. Power " to prevent disturbances and disordeily 
 assemblages, and maintain the good government of the city," 
 authorizes it to take measures to preserve the peace and to 
 protect, the lives and property of the citizens, and the acts 
 of the city in procuring a loan of arms and giving a bond 
 for their return, are valid and binding upon it." Authority 
 to preserve the peace and quiet of the place authorizes an 
 ordinance forbidding "all disorderly shouting, dancing, 
 &c., in the streets and public places," though such conduct 
 violates no existing state law.' 
 
 ■ Mode of Enforcing Ordinances. 
 
 § 341. Givil Actions and Complaints. — In the old cor- 
 porations in England, by-laws were usually made in virtue 
 of their implied power ; they did not extend to matters 
 criminal in their nature, and could only be enforced, unless 
 by virtue of a statute or valid custom, by fines or pecuniary 
 penalties, commonly for a small sum, and always, or almost 
 always, in a fixed or certain amount.* So, by the Muni- 
 
 > Mayor, &c. of New York t. Williains, 15 N. T. 503, 1859. Johniion, 
 J., observes: " The danger is not confined to the owner and ordinary occu- 
 pants of the building. The ordinance, in that respect, stands on the same 
 footing %s a regulation prohibiting a well or cistern in a man's yard unpro- 
 tected by curb or cover, the reasonableness of which could not be doubted. 
 In case of fire, these openings would tend directly and powerfully to allow 
 the fire to extend through all parts of the building, and, if left uncovered, 
 would also tend to endanger those whom duty might require to enter to 
 effect the extinguishment of the fire." Paige, J., considered the ordinance 
 the same La principle as fire laws, prescribing the height, thickness of 
 walls, and materials of building within the city^ 
 
 2 State v. Buffalo, 2 Hill (N. T.) 434, 1843; New Orleans v. Costelfo, 14 
 La. An. 37. 
 
 ' Washington v. Frank, 1 Jones (N. C.) Law, 436, 1854. As to what 
 regulations of this kind are necessary, "much," says the court, "must be 
 left to the judgment and discretion " of the corporate authorities. lb. 
 State V. Bell, 18 Ire. (Law) 378. Post, chap. XIH. 
 
 * Gee®. Wilden, Lutw. 1330, 1324; Wood ». Searl, Bridg. 139; Piper 
 V. Chappell, 14 M. & W. 634; Rawlinson on Corp. 665, note. Bee peat, 
 chapter on Municipal Courts. 
 
432 MUNICIPAL CORPORATIONS. [Ch. Xn. 
 
 cipal Corporations Act of 1835, tlie council are enapowered 
 to make such, by -la ws as to them shall seem meet for the 
 good rule and government of the borough, and for the pre- 
 vention and suppression of all such nuisances as are not 
 punishable by act of parliament in force in the borough, and 
 to appoint such fines as they shall deem necessary for the 
 prevention and suppression of such offences, with the pro- 
 viso that no fine shall exceed the sum of five pounds." The 
 act provides that prosecutions for'a breach of by-laws made 
 under it, shall be commenced within three months after the 
 commission of the offence ; that the charge shall be made 
 on oath ; that a summons shall issue and be served, with 
 power to the magistrate to proceed without the appearance 
 of the defendant, or to issue a warrant for his arrest ; that 
 if convicted, the penalty shall be paid either immediately or 
 within such period as the magistrate shall think fit ; that it 
 maybe levied by distress and sale of the goods and chattels 
 of the offender, and for want of sufficient distress the 
 offender may be imprisoned for a term not exceeding one 
 month, the imprisonment to cease upon payment of the 
 sum due.' It is suggested that the remedy thus prescribed 
 is cumulative, and will not debar the corporation from avail- 
 ing itself of the usual common law mode of enforcing a by- 
 law by action of debt or assumpsit.' But the point seems 
 not to have been yet adjudged. 
 
 § 342. Aside from statutory regulation, the general 
 method of enforcing a by-law in England is, as just stated, 
 by bringing, in the name of the proper party or corporation, 
 an action, in the proper court, against the person who has 
 violated the by-law, to recover the penalty which it imposes, 
 and this action may be either debt or assumpsit. By the 
 common law, assumpsit may be mainta,ined for the breach 
 of any duty which the defendant has been legallv liable to 
 
 ' 5 and 6 Will. IV. chap. LXXVI. sec. 90. AnU, sees. 16, 270. 
 
 s II. sec. 91 ; sees. 127-133. Supra, sec. 271. 
 
 ° Rawlinson on Corp. (5th ed.) 167, note. See Adley v. Reeves, 2 Maale 
 «fc Sel. 61 ; Bodwic v. Fennel], 1 Wils. 283. On the other hand, Mr. Grant 
 is of opinion that the remedy prescribed by the act is exclusive, and supei^ 
 aedes thg common law remedy of debt or assumpsit for the amount of the 
 fine or penalty. Grant on Corp. 364. Supra, sees. 371 375. 
 
Ch Xn.] MODE OF ENFORCING OBDINANCES. 433 
 
 perform in favor of the plaintiff, the law implying a promise 
 to perform the particular act, and hence no principle was 
 violated in holding that assumpsit would lie to recover the 
 penalty of a by-law. As the penalty was for a sum certain, 
 and was considered to be in the nature of liquidated dam- 
 ages, an action of debt would also lie to recover the amount 
 of the penalty ; but where the by-law itself provided that 
 the penalty should be recovered by debt, then that form of 
 action alone could be maintained. But, aside from statute 
 jiuthority or a valid custom, it was not competent for the 
 by-law to provide that its penalty should be recovered by 
 "distress and sale" of goods, that being contrary to the 
 common law.' 
 
 § 343. In tMs country, the courts hold that where the 
 mode of enforcement is prescribed by the charter, that mode 
 must be pursued ;' but if the mode or form of action is not 
 prescribed, then the recovery of the penalty or fine for the 
 violation of a municipal ordinance may be as at common, 
 law, by an act of debt or assumpsit, or where these forms- 
 are abrogated, by a civil action- in substance the same.' 
 
 'Waic. 164-181; 1 Saund. PI. and Ev. 683; 3 Wheat. Selw. 11T8; 3 
 Chitty PL 401, where form of declaration in debt is given ; Adley v. Reeves,- 
 2 M. & S. 60. •The law implies a promise on the part of a corporator to pay 
 all penalties incurred for his violation of by-laws.; and if the mode of en- 
 forcing such penalties is not pointed out, the corporation may sue therefor 
 in any competent court. Columbia v. Harrison, 3 Const. (South Oar.) Rep. 
 313, per Nott, J. 8upra, sees. 370-380. 
 
 = Weeks v. Foreman, 1 Harris. (N. J.) 337, 1837 ; Ewhanks ». Ashley, 36 
 111. 177, 1864; Israel d. Jacksonville, 1 Scam. (111.) 390; Williamson ». Com- 
 monwealth, 4 B. Mon. 146, 151, 1843. An action may be' brought for the 
 fines and penalties incurred for the violation of ordinances, and it is not 
 necessary that the fine be assessed before the suit is brought. King «. Jack- 
 sonville, 3 Scam. (HI.) 306. In Weeks ». Foreman,, 1 Harris. (N. J.) 387, 
 1837, it was held that, although certain corporate officers were ex officio jus- 
 tices of the peace within the city, with power to take cognizance of viola- 
 tions of by-laws, they could not entertain or try actions of debt, to recover 
 a debt or penalty for a breach of an ordinance, although is was conceded 
 that they had jurisdiction of the quad criminal proceeding, founded upon a 
 complaint or information, resulting in what is technically called a oonmo- 
 tion; \m.tqu(ere. Supra, sees. 370-387. 
 
 ' Ewbanks v. Ashley, 36 111. 178, 1864 ; Israel «.. Jacksonville, 1 Scam. 
 (111.) 390; Coates v. Mayor, 7 Cow. 585, 608, 1837. Unless it is otherwise 
 28 
 
434 MUNICIPAL C0EP0RA.TI0N8. [Gh. xn. 
 
 And where such an action is brought, the proceeding is 
 civil and not criminal, and the rules of proceednre in civil 
 cases, unless otherwise provided, are applicable to it.' The 
 penalties to ordinances are often fixed upon a movable 
 scale, and this would appear to be done under the supposi- 
 tion that they will, be eoforced, not by a common law 
 action in the common law courts to recover the amount of 
 the penalty, but by a complaint or proceeding before the 
 proper municipal magistrate, wlft) will, within the pre- 
 scribed limits, determine the amount of the fine or penalty 
 to be paid, by reference to the circumstances of the particular 
 case. 
 
 § 344. Nature of Proceeding, Civil or Criminal. — 
 Where, instead of a civil action to recover the pecuniary 
 fine or penalty, the proceeding is in the nature of ^ com- 
 plaint for the violation of the ordinance, this has sometimes 
 been considered to be a criminal or quasi criminal, and not 
 a civil, proceeding. The cases on this subject, however, are 
 not harmonious, but the difference in them, to some extent, 
 depends upon the character of the act or offence charged, 
 the nature of the charter, and the legislation in the particular 
 state as to the extent of jurisdiction intended to be con- 
 ferred upon the municipal authorities." The constitution of 
 Georgia declares that "trial by jury, as heretofore used in 
 this state, shall remain inviolate." It was claimed that the 
 legislature could not constitutionally confer on the city 
 council the power to pass an ordinance inflicting a fine for 
 its violation where the guilt of the party was to be tried by 
 the council, without a jury. The court held that the objec- 
 tion was not sound, observing that violations of ordinances 
 
 provided by statute or charter, it is considered that corporations have an 
 inherent power to provide for the recovery of a pensilty by an action of debt 
 in their ovm courts. Hesketh d. Braddock, 3 Burr. 1858; Barter v. Com- 
 monwealth, 3 Pa. (Pen. & W.) 253. Supra, sec. 275. 
 
 ' n.; MunicipaUty v. Catting, 4 La. An. 335; Lewiston c. Proctor, 23 
 HI. 538, 1860; Quincy n. Ballance, 30 HI. 185; Davenport v. Bird, Iowa 
 Supreme Court, December Term, 1871; Williamson o. Commonwealth 4 
 B. Mon. 146, 151, 1848. 
 
 ' "Wayne County®. Detroit, 17 Mich. 890; Peoples. Detroit, 18 Mich. 445 
 Davenport v. Bird, 34 Iowa, December Term, 1871. See chapter on Mu 
 nicipal Courts, pest. Supra, sees. 381, 300. 
 
Ch. Xn.] MODE OF ENFOECDTG ORDINANCES. 435 
 
 are not criminal cases within the meaning of the state con- 
 stitution, and " that, inasmuch as the right of trial by jury 
 existed in England, and was secured by Magna CTiarta, 
 and municipal corporations in that country enforced their 
 by-laws by pecuniary penalties, in a sv/rnmary manner, 
 and the same right being conferred upon similar corpora- 
 tions in this state anterior to the adoption of the constitu- 
 tion, and constantly exercised, " the right of trial by jary, 
 as heretofore used in this state," was not violated by the 
 city council of Augusta, by the imposition of the penalty 
 for the breach of the local police regulations of that city.'" 
 
 § 345. On the other hand, in Massachusetts, prosecu- 
 tions for breaches of by-laws or ordinances made to enforce 
 police regulations are regarded as substantially public 
 prosecutions, and in such prosecutions it is competent, 
 though confessed not to be very just, to disallow the de- 
 fendant costs. Applying this doctrine, it is held that a 
 .statute providing that prosecutions for violations of city 
 
 ' Williams 9. Augusta (gunpowder ordinance), 4 Geo. 509, 1848, f&r 
 "Warner, J., approving Low «. Commissioners of Pilotage, E. M. Oharlt. 
 (Geo.) 316; Flint River Steamboat Company ». Foster, 5 'Geo. 194; Floyd s. 
 Commissioners, &c., 14 Geo. 354; Kip ». Patterson, 2 Dutcli. (N. J.) 298; 
 Keeler 1). Milledge, 4 Zab. 142; Shaferu. Mumma, 17 Md. 381. " Summary 
 convictions for petty offences against statutes -were always sustained, and . 
 they were never supposed to be in conflict with the common law right to a 
 trial by jury." Per Strong, J., Byers «. Commonwealth, 43 Pa. St. 89, 94, 
 1863. In the case last cited, the extent of the right of jury trial at common 
 law is learnedly examined by Mr. Justice Strong. See, also, Dunsmore's 
 Appeal, 52 Pa. St. 874; Rhines v. Clark, 51 Pa. St. 96, 1865. Compare, 
 Plimpton «. Somerset, 33 Vt. 288, 1860. See post, Municipal Courts. A 
 statute requiring security for costs, in prosecutions for "penal statutes," 
 does not embrace prosecutions under city ordinances which impose penalties 
 for their violation, such ordinances not being " statutes " within the mean- 
 ing of the act. Lewistown v. Proctor, 33 111. 533, 1860; 8. P. Quincy v. 
 Ballance, 30 lb. 185. And see, also. Municipality i>. Cutting, 4 La. An. 
 335; Ewbants v. Ashley, 36 III. 177; "Wayne County v. Detroit, 17 Mich. 
 390; People v. Detroit, 18 Mich. 465, construing the phrase "penal laws" 
 as used in the Michigan constitution. Phrase "municipal fine," in the 
 constitution of California, construed. People ». Johnson, 30 Cal. 98, 1866. 
 Violations of ordinances imposing fines and penalties are in the nature of 
 torts, and actions for such violations may be prosecuted against one or 
 more of the offending parties — they need '^ot all be joined. President, &c. 
 0. Holland, 19 III. 371, 1857. 
 
436 MUNICIPAL CORPOEATIONS. [Ch. XH. 
 
 ordinances in the name of the state or commonwealth is not 
 unconstitutional, notwithstanding the result is that the de- 
 fendant does not recover costs on acquittal.' 
 
 § 346. Mode of Pleading Ordinances. — The courts, 
 unless it be the courts of the municipality, do not judicially 
 notice the ordinances of a municipal corporation, unless 
 directed by charter or statute to d© so.' Therefore, such 
 
 • Goddard, Petitioner, 16 Pick. 504, 1835 ; Commonwealth «. Worcester, 
 3 Pick. 463. "If," says Chief Justice Shaw, in the case first cited, " the 
 prosecution were to enforce a prwate right by the city, there would be 
 weight in the objection, and it would stand on different grounds. " 16 Pick. 
 508. See Commonwealth v. Gray, 5 Pick. 44 ; Commonwealth v. Pakey, 5 
 Cush. 408. Similar observations in relation to making sidewalks, by Vord, 
 J., in Paxon v. Sweet, 1 Green (N. J.) 196, 300, 1833. So, in New Hamp- 
 shire, a public prosecution for an offence made penal by a city ordinance 
 because of its supposed eyil consequences to society — as, for example, the 
 offence of unlawfully keeping a bowling alley — is considered to be a criminal, 
 and not a civil, proceeding. State ®. Steams, 11 Post. (N. H.) 106, 1855. 
 Pink ®. Milwaukee, 17 Wis. 36, 1863, is decided upon the basis that a prose- 
 cution of a party for the violation of a city ordinance, where the penalty is 
 a fine, is a criminal prosecution to which the bill of rights applies, which 
 declares that, "in all criminal prosecutions, the accused shall be entitled 
 to demand the nature and cause of the accusation against him.'' But a 
 principle so broad, it is believed, can hardly be maintained where the act 
 charged is not a crime at common law or in its essential nature. See chap- 
 ter on Municipal Courts, post. In Indiana an action to recover the penalty 
 of a by-law, though a waiTant for the arrest of the defendant be issued and 
 served, is considered to be a cvoU suit, and governed by the rules of practice 
 in such suits. Goshen a. Croxten, 34 Ind. 337, 1870. Ante, sees. 300-303, 
 and notes. 
 
 = Trustees i>. Leffler, 33 111. 90; Mooney v. Bennett, 19 Mo. 551,. 1854; 
 New Orleans v. Bondo, 14 La. An. 303, 1859 ; Harker v. Mayor, 17 Wend. 
 199, 1837; Case ». Mobile, 30 Ala. 538, 1857; People v. Mayor, &c. of New 
 York, 7 How. Pr. R. 81, 1851 ; Cox v. St. Louis, 11 Mo. 431, 1848 ; Garvin «. 
 Wells, 8 Iowa, 386; Goodrich v. Brown, 30 Iowa, 391, 1870. In England, 
 when an action on a by-law founded on a custom is brought in a court of 
 the municipality the court will take judicial notice of it, but in an action in 
 the Buperior Courts the custom and the by-law must be set out, for these 
 courts will not take notice of them. Willc. 166, pi. 403 ; II. 173, pi. 433 ; 
 lb. 173, pi. 435 ; Broadnac's Case, 1 Vent. 196 ; Barber Surgeons «. Pelson, 
 2 Lev. 353; Norris v. Staps, Hob. 311. In Conboy v. Iowa City, 2 Iowa, 
 90, it was held that the mayor, on whom was conferred exclusive jurisdic- 
 tion of the violation of the ordinances of the city, was authorized to take 
 judicial notice, ex officio, of the city ordinances. The provision of a city 
 charter that its published and printed ordinances shall be recei\fed in evi- 
 
Ch. XU.] mode of enforcing ordinances. 437 
 
 ordinances, when sought to be enforced by action, or when 
 set up by the defendant as a protection, should be set out 
 in the pleading. It is not sufficient that tbey be referred to 
 generally by the title or section. It is, however, believed to 
 be sufficient, in the absence of special legislative provision 
 prescribing the manner of pleading, to set forth the legal 
 substance of that part of the ordinance alleged to have been 
 violated, it being advisable, for purposes of indentification, 
 to refer also to the- title, date, and section. The liberal rules 
 of pleading and practice which characterize modern judicial 
 proceedings should extend to, and doubtless would be held 
 to embrace suits and prosecutions to enforce the by-laws or 
 ordinances of municipal corporations.' 
 
 § 347. Requisites qf Complaints. — Under a charter au- 
 thorizing "complaint" to be made of the violation of 
 ordinances, but not prescribing the mode or requisites, a 
 complaint is not in the nature of an information by a 
 common informer, and the same strictness is not required 
 as in an information or indictment. " It is sufficient if it 
 sets out with clearness the offence charged, and the sub- 
 stance of that part of the ordinance which has been 
 violated, vdth a reference to the title, date or section.'" 
 
 dence in aU courts without proof, does not dispense with the necessity of 
 making them part of the record in order to bring them to the knowledge of 
 an appellate court. Cox a. St. Louis, 11 Mo. 431, 1848 ; New Orleans v. 
 Bondo, 14 La. An. 303, 1859. 
 
 ' Harker v. Mayor, &c. 17 Wend. 199, 1837. See Stokes v. Corporation 
 of New York, 14 Wend. 87; Mooney ®. Kennett, 19 Mo. 551, 1854. In 
 justifying, the defendant must set out in his plea or answer the ordinance, 
 or so much thereof as will show on what the defence rests. Ih. ; Keeler «. 
 Maiedge, 4 Zabr. (N. J.) 143, 1857. It is sufficient to set out the substance 
 of that part of the ordinance which has been violated, with a reference to 
 the title, date, and section. Ih. ; approved, Kip «. Patterson, 2 Dutch. 
 (N. J.) 298. Regularly, the by-law or its substance should be set forth. 
 Case.®. Mobile, 80 Ala. 538, 1857; Charleston v. Chur, 2 Bailey (South 
 Car.) 164. In England, the by-law itself must be fully set out in an action 
 oi Mt upon it, and not by way of recital; but in assumpsit upon the same 
 by-law, latitude is allowed. Willcock, 173, pi. 435. But in this country it 
 is said that "it is not necessary to hold to the strictness anciently required." 
 Keeler v. Millege, 4 Zabr. 142. In Indiana, before the act of 1867, it was 
 necessary to file with complaint copy of ordinance or section thereof alleged 
 to have been violated. Green ». Indianapolis, 25 Ind. 490 ; Whitson ». 
 Franklin, 34 Ind. 393, 1870. 
 
 2 Keeler v. Milledge, 4 Zabr. (N. J.) 143, 1857 ; approved, Kip v. Patter- 
 
438 MimiCIPAL CORPORATIONS. [Ch. Xn. 
 
 § 348. In an action or proceeding to recover a penalty 
 for the violation of a by-law or ordinance of a corporation, 
 the declaration or complaint should state facts which make 
 the liability of the defendant distinctly to appear.' And 
 regularly, as before stated, the by-law should be set forth 
 
 son, 2 Dutch. 398; City Council t. Seeba,4 Strob. (South Car.) Law, 319; 
 Commonwealth «. Bean, That. 85; compare. Fink v. Milwaukee, 17 Wis. 
 36, 1863 ; see, also, Commonwealth s. Bean, 14 Gray, 52 ; Deitz o. City, 1 
 Colorado, 333 ; Napman c. People, 19 ffich. sll2, 1869 ; Goshen v. Croxton, 
 34Ind. 339, 1870; Whitson b. Franklin, 34 Ind. 393, 1870. By statute, 
 prosecutions for the violations of the ordinances of Boston may be prose- 
 cuted in the name of the commonwealth ; and it is decided that in a com- 
 plaint for such a violation it is not sufficient that it concludes "against 
 the form of the by-laws of the said city," but it must conclude also against 
 the form of the statute. Commonwealth s. Gay, 5 Pick. 44, 1827 ; Com- 
 monwealth v. Worcester, 3 Pick. 463, 1836. Complaint must be in the 
 name of the treasurer of the city or town, and not in that of the common- 
 wealth, for violation of health ordinances, since the statute of 1849. 
 Chap. CCXL sec. 7 ; Commonwealth ■». Fakey, 5 Gush. 408, 1850. Police- 
 men, marshals, and other officers of a municipal corporation, where such a 
 course is not repugnant to the constitution or general law of the state, may 
 be empowered by an ordinance to arrest offenders without warrant, for 
 breaches of ordinances committed in their presence. Bryan v. Bates, 15 
 IlL 87; Main®. McCarty, 15 HI. 442; State b. Lafferty, 5 Harring. (Del.) 
 491. A city ordinance providing that any person who shall refuse to obey 
 an order at a fire given by any officer duly authorized, " may be arrested 
 and detained in custody until the fire is extinguished," is unconstitutional, 
 because the person is deprived of his liberty without due process of law, 
 and because his right to trial by jury is invaded. The court distinguish 
 between an arrest of this kind and where the purpose of the arrest is pre- 
 liminary to and contemplates a judicial examination. Judson v. Beardon, 
 16 Mnn. 431, 1871. Ante, sees. 149, 150 ; Mitchell v. Lemon, 34 Md. 176, 
 1870; Butolph v. Blust, 5 Lansing (N. T.) 84, 1871. Requisites of warrants 
 for the violation of municipal ordinances. White v. Washington, 3 Cranch 
 Cir. C. 337. Other cases: lb. 356; li. 459; i lb. 103; lb. 582; Prells v. 
 McDonald, 7 Kansas, 426, 1871. Sufficiency of notice to the accused' under 
 special charter provisions. 4 Zabr. 143, supra. Essentials of summary con- 
 victions. Commonwealth v. Borden, 61 Pa. St. 373. 
 
 ' Saund. PI. <fc.Ev. 334; Comyn Dig. tit. Pleader (3 W. 11); Feltmakers 
 ». Davis, 1 Bos. & Pul. 93 ; Piper e. Chappell, 14 M. & W. 623 ; Case ». 
 Mobile, 30 Ala. 588, 1857 ; Coates «. Mayor, 7 Cow. 585, 608, 1827; where 
 the substance of a declaration in debt is given ; Charleston v. Chur, 3 Bailey 
 (South Car.) 164 ; Krickle ®. Commonwealth, 1 B. Mon. 361, 1841. Pleader 
 need not negative exception in a proviso to the enacting clause of an ordi- 
 nance or in a subsequent section, this being a matter of defence. Lynch ©. 
 People, 16 Mich. 473, 1868. The conviction must be for the same offence 
 for which the defendant is prosecuted. Columbus v. Arnold, 30 Geo. 517. 
 
Oh. XII.] MODE OF ENFOKCING ORDINANCES, 439 
 
 or its substance stated, the bi-eacli and the plaintiff's right 
 to sne for the penalty. But wheije the charter or organic 
 act of the corporation will be judicially noticed, it cannot 
 be necessary to set out, as it has been held to be in England, 
 the authority of the corporation to make the by-law.' 
 
 § 349. Where the penalty is given in general terms, it 
 is understood to be to the use of the corporation, and the 
 action or prosecution must be by and in the name of the 
 corporation.' In England it was the practice, in many cases, 
 to appoint in the by-law tlie penalty to be sued for in the 
 name of the chamberlain, treasurer, or some other officer of 
 the corporation, and though the power of thus suing for 
 the penalty could not be given to a mere stranger, yet it 
 was not absolutely necessary that the penalty should be 
 given to the corporation, but it might be given to the in- 
 former.' Whenever the mode of enforcing obedience to a 
 by-law is prescribed by such by-law, that mode must be 
 strictly pursued, and the plaintiff (where the rules of 
 common law pleading prevail) must be the party to whom 
 the penalty is given. Where it is given to the chamberlain 
 for the use of the corporation, the action must be in the 
 the name of the chamberlain, and not in that of the corpo-. 
 ration. And when the chamberlain may sue, he need not 
 set out his election or appointment, but may aver generally 
 ,that he is chamberlain, and set forth his right to sue and to 
 recover.' Unless the ordinance show that it was intended 
 that no action for a penalty should lie without a previous 
 demand, it is not necessary to aver one.' !N"or is it necessary 
 
 ' Norris v. Staps, Hop. Sit. 
 
 ' Bodwicj). Fennell, 1 Wils. 333; Vintners' Co. b. Passey, 1 Burr. 335; 
 Glover, 313; 3 Kyd, 157; Graves*. Colby, 9 Ad. & El. 356; Williamson «. 
 Commonwealth, 4 B. Mon. 146, 151, 1843. Ante, chap. VIU. 
 
 » Glover, 313, 314, 315; Feltmakers v. Davis, 1 Bos. & P. 101; Bodwic 
 c. Fennell, 1 "Wils. 333 ; Tottendell ». Glazby, 3 Wils. 266 ; Hesketh v. Brad- 
 dock, 8 Burr. 1848 ; Wood b. Searl, Bridg. 141 ; Graves v. Colby, 9 Ad. & 
 El. 356. 
 
 * Harris a. Wakeman, Say. 355 ; Bxon «. Starre, 3 Show. 159. Under con- 
 stituent act, town treasurer held entitled to sue in his own name for penal- 
 ties. Watts 0. Scott, 1 Dev. (North Car.) 391 ; Commonwealth v. Pakey, 5 
 Cush. 408, 1850. 
 
 ' Butchers v. Bullock, 3 Bos. & P. 434, 437. 
 
440 MUNTCIPAL CORPORATIONS. [Oh. XH. 
 
 to aver that the defendant liad notice of the ordinance, foi 
 this is conclusively presumed with respect to all on whom 
 it is binding." 
 
 .§ 350. Mode of Procedure, Defences, JEMdence, <6c.— 
 In prosecutions to enforce ordinances, the ordinary rules 
 of evidence apply,- except so far as specially modified by 
 statute ; and it is not competent for a municipal corporation, 
 without express authority, to m^ke or alter the rules of 
 evidence or of law." It is, however, competent for a city t(| 
 provide by general ordinance, after siiit commenced to re- 
 cover a penalty for acting without a license, that the granlf 
 ing of a license, though by its terms it takes effect from » 
 day previous to the commission of the offence, shall not (ai 
 might otherwise be the case) rdease or waive the penalty.^ 
 
 % 351. In proceedings to enforce ordinances, the ille- 
 gality of the corporate organization cannot be shown to 
 defeat a recovery ; in such a collateral proceeding, evidence 
 that the corporation is acting as such is aU that is rec[uired.' 
 
 § 352. The legislature may ratify ordinances not other- 
 wise binding ; and offenders should thereafter be prosecuted 
 under the ordinances, and not under the validating act." | 
 
 i 
 
 § 353. In prosecutions or actions to enforce ordinancesl 
 
 or in considering the question of their validity, courts will 
 
 i 
 
 * London b. Barnardston, 1 Lev. 16 ; James v. Putney, Cro. Car. 498. 
 
 » City Council ®. Dunn, 1 McCord (South Car.) 333 ; Pitch v. Pinckard, 4 
 Scam. (111.) 78. The defendant's admission of a violation of an ordinanca 
 is competent evidence. Columhia o. Harrison, 3 Const. R. (South Car.) 213, 
 1818. 
 
 3 City Council v. Smidt, 11 Rich. (South Car.) Law, 343 ; City Council 
 ■B. Corlies, 2 Bailey (South Car.) 189. Commented on by O'Neall, J., in City 
 Council v. Peckman, 3 Rich. (South Car.) Law, 385. And see case last cited 
 as to other circumstances, in which it was held that a prior penalty was 
 not waived by a subsequent acceptance of the amount of a license for a 
 year. 
 
 * Hamilton ®. Carthage, 24 HI. 23; Mendota ®. Thompson, 20 HI. 197, 
 Coles County B. Addison, 38 HI. 387; Decorah v. Gillis, 10 Iowa, 334; Ket- 
 tor.ng V. Jacksonville, 50 111. 39 ; Tisdale «. Minonk, 46 111. 9, 1867. 
 
 ' Truchelut v. City Council, 1 Nott & McC. (South Car.) 327, 1818. AntA, 
 chap. rV. sec. 46, and note. , 
 
Ch. Xn.] MODE OF ENFORCING ORDINANCES. 44I 
 
 give them a reasonable construction, and will incline to 
 sustain rather than to overthrow them, and especially is this 
 so where the question depends upon their being reasonable 
 or otherwise. Thus, if by one construction an ordinance 
 will be valid, and by another void, the courts will, if pos- 
 sible, adopt the former. But an ordinance which transcends 
 the power vested in the body which passed it is void, and 
 may be taken advantage of by plea or answer to an action 
 to recover the penalty or other proceedings to enforce it.' 
 Its validity may also be tested in proper cases by suits 
 against the corporation or its officers for acts done under it,' 
 
 ' Commonwealth v. Robertson, 5 Cush. 438, 443, 1850; Vintners v. Pas- 
 sey, 1 Burr. 339 ; Poulters Co. v. Phillips, 6 Bing. (N. C.) 314, 333 ; Tailors of 
 Ipswich, 11 Rep. 54, a; Norris ». Staps, Hob. 211; Tobacco, &c. Co. «. 
 Woodrofle, 7 B. & C. 838 ; Moir «. Munday, Sayer, 181, 185 ; Rounds v. 
 Mumford, 3 Rh. Is. 154, 1853. Where the legislature has conferred full and 
 exclusive jurifldiction on a municipal corporation over a certain subject, the 
 acts of the corporation will be supported by every fair intendment and pre- 
 sumption. Baltimore ». Clunet, 33 Md. 449, 1865. In view of the inarti- 
 ficial character of town by-laws, they are especially entitled to a reasonable 
 construction. Whitlock v. West, 36 Conn. 406 ; Willc. Mun. Corp. 159, pi. 
 383. By-laws with penalties are not properly penal statutes. The penalty 
 is in the nature of liquidated damages, established as such in lieu of dama- 
 ges which a court would be authorized to assess. Therefore the strict rules 
 by which the validity of penal statutes are to be tested are not to be ap- 
 plied to the by-laws or ordinances of municipal corporations. It is well 
 remarked, that " the by-laws of very few of these corporations could stand 
 such a test. They should receive a reasonable construction, and their terms 
 must ngt be strictly scrutinized for the purpose of making them void.' 
 Per BasUs, 0. J., Municipality «. Cutting, 4 La. Ann. 335; Merriam v. New 
 Orleans, 14 li. 318; S. P. Loze b. Mayor, &c., 3 La. 437. If, however, the 
 ordinance is, in its nature, highly penal, it vpill be construed strictly, and it 
 must clearly embrace the offence charged. Krickle ■». Commonwealth, 1 
 B. Mon. 361, 1841. Contemporaneous construction often of great weight 
 in interpreting doubtful provisions. State v. Severance, 49 Mo. 401, 1873. 
 Ante, sec. 57, note, sec. 135, note. 
 
 " Moir V. Munday, Sayer, 181, 185. See protective provisions to corpor- 
 ate officers and agents in Municipal Corporations Act, 5 and 6 Will. IV. chap. 
 LXXVI. sees. 133, 133. In the Canadian Municipal Act (sec. 198, Harrison's 
 Munic. Man. 3nd ed. p. 145), there is what the author would suppose to be a 
 very useful provision to test summarily the validity of by-laws, to the effect 
 that a resident of a municipality of any other person interested in a by- 
 law, order or resolution may, within one year, apply to either of the Supe- 
 rior Courts of Common Law to have it quashed, and the court, after notice 
 to the corporation, may quash the by-law, order or resolution, in whole or 
 
442 MUNICIPAL COEPORATIONS. [Ch. XH. 
 
 or by a return to 2, mandamus where the party justifies his 
 refasal to . comply with the writ, on the ground that the 
 ordinance is invalid,? or, as elsewhere shown, by bill in 
 chancery to enjoin proceedings thereunder. 
 
 § 354. 11 part of a hy-law he void, another essential ^pd 
 connected part of the same by-law is also void." But it 
 must be essential and connected, to have this effect. . Thus, 
 if an ordinance, or even the same»section of an ordinance, 
 contains two separate prohibitions relating to different acts, 
 with distinct penalties for each, one of which is valid and 
 the other void, the ordinance may be enforced as to that 
 portion of it which is valid.' 
 
 in part, for illegality; and it is further provided (sec. 205), that in case any- 
 thing has been done under such illegal by-law, order or resolution, which 
 gives any person a right of action, no action shall be brought until 'one 
 month's notice thereof be given to the corporation, and such action must be 
 brought against the corporation and not against 'any person acting under 
 the by-law, order or resolution. Construction of provision, see Harrison's 
 Munio. Man. (Snded.) pp. 148, 153. 
 
 ' Rex v. Harrison, 3 Burr. 1333; Grant on Corp. 89. An ordinance may 
 be void for -uncertainty in its provisions, as, for example, one which alters 
 street grades, without referring to any plan or establishing new grades. 
 Kearney v. Andrews, 2 Stock. (N. J.) 70. 
 
 ' Austin v. Murray, 16 Pick. 131, 126, 1834 ; Com. Dig. By-law, chap. 
 Vn. ; Kex v. The Company, &c., 8 Term R. 356. See Commonwealth v. 
 Stodder, 3 Cush. 563, 1848 ; Fisher v. McGirr, 1 Gray, 1 ; "Warren v. Mayor, 
 &o., 3 Gray, 84; Commonwealth v. Hitchings, 5 Gray, 483. 
 
 ' Commonwealth v. Dow, 10 Met. 383, 1845 ; Amesbnry b. Insurance Co. 6 
 Gray, 596 ; Shelton ». Mayor of Mobile, &c. (market ordinance), 30 Alas 
 540, 1857; Rogers®. Jones, 1 Wend. 337 ; Thomas «. Mount Vernon, 9 Ohio, 
 390; 1 Stra. 469; Sir T. Raym. 288, 394; Sayer, 356; IB. & Ad. 95; 7 Term 
 R. 549. ''If a by-law be entire, each part having a general influence over 
 the rest, and one part of it be void, the entire-by-law is void." Willcock 
 on Corp. 160, pi. 384; approved Municipality v. Morgan, 1 La. An. Ill, 116, 
 1846. "But if a by-law consist of several distinct and independent parts, 
 although one or more of them may be void, the rest are equally valid, as 
 though the void clauses had been omitted." Willcock, 161, pi. 389 ; Pazak- 
 erly v. Willshire, 11 Mod. 353 ; Lee ». Walls, 1 Kenyon, 395. In a leading 
 case. Rex ». The Co. of Fishermen, 8 Term R. 356, Lord Kenyon said: 
 "With regard to the form of the by-law indeed, though a by-law may be 
 good in part and bad in part, yet it can be so only when the two parts are 
 entire and distinct- from each other." Approved, Municipality ®. Morgan, 1 
 La. An. Ill, 116, 1846. It is stated in Grant on Corporations, 88, that it is 
 
Oh. xn.] MODE OF EKFQBCING 0EDINANCE8. 443 
 
 § 355. When not specially regulated by charter or 
 statute, the proof of osrdinances uiu6t be by the production 
 of the originals or the books in which they are registered, 
 as these are the primary evidence.' Printed copies, or au- 
 thenticated copies, are often made competent evidence by 
 the legislature. 
 
 " now fully settled that a by-law that is void in part is void wholly; e. g. if 
 the penalty be unreasonable the rest of the by-law is vitiated thereby, and 
 becomes whoUy inoperative and null." Citing Com. Dig., By-Law, chap. 
 VII. ; Colchester ». Godwin, Carter, 121; EUwood v. Bullock, 6' Queen's B. 
 383; Clarke ». Tuckett, 3 Vent. 183; Rex «. Atwood, 4 B. & Ad. 481. But 
 the rule in the text is well sustained, and is reasonable ; and it is not true 
 that the void part of a by-law will make null complete and independent 
 parts of the same by-law which would otherwise be good. 
 
 ' Lumbard v, Aldrieh, 8 N. H. 31; Stevens v. Chicago, 48 111. 498; 
 Moore v. Newfleld, 4 Greenl. (Me.) 44 ; Hallowell Bank ». Hamlin, 14 Mass. 
 178; Case of Thetford, 13 Vin. Abr. 90. See chapter on Corporate Records 
 and Documents, ante. Proof may be made by the clerk that he posted up 
 copies of an ordinance appearing on the records, without producing such 
 copies or accounting for their absence. Tef t e. Size, 6 Gilm. (111.) 433. 
 As to promulgation and publication of ordinance. Charleston «. Chur, 3 
 Bailey (South Car.), 164; Battering ». Jacksonville, 50 HI. 39. Supra, sees. 
 365-369. 
 
 Where the charter provides that the printed volume of City Ordinances 
 shall be evidence in all courts, the ordinances printed therein will be judi- 
 cially noticed the same as public statutes. Napman v. People; 19 Mich. 
 853, 1869. Ante, sec. 50. 
 
444 MUNICIPAL CORPORATIONS. [Oh. XI EI. 
 
 CHAPTEK XIII. 
 
 Municipal Cotdbts. 
 Municipal Courts in England and at Common Law. 
 
 § 356. A municipal corporation may, at common law, 
 enjoy the franchise of holding a court ; and corporation or 
 municipal courts, which were local or inferior jurisdictions, 
 were not uncommon.' They were treated as the tribunals 
 of the corporation, but since courts of justice are for the 
 public benefit, words in a charter permitting the coi-pora- 
 tion to hold a court are imperative ;" and the right cannot be 
 lost by non-user ; and therefore the mere disuse, for two 
 hundred years, of a court granted to a corporation by 
 charter, is no answer to a rule for a mandamus command- 
 ing them to hold it, though it was alleged that there were 
 no sufficient funds for the purpose." 
 
 The common law doctrine respecting municipal courts 
 was settled to be that the municipal corporation could bring 
 no action therein against a stranger where the effect would 
 be to benefit the corporation or increase its funds, for that 
 would be to make the corporation itself both judge and 
 party, which an inflexible and fundamental maxim of the 
 xommon law prohibited ; and the same principle was con- 
 sidered to operate to disqualify corporators to sit as jurors 
 in such cases ; but this objection did not apply when both 
 parties were corporators.* 
 
 The English Municipal Corporation Act of 1835 proxrides 
 for the establishment of borough courts, defines their juris- 
 diction and powers, makes burgesses or citizens competent 
 
 ' 1 Inst. 114; 4 II. 87, 224; Cro. Jac. 313; Haddock's Case, T. Raym. 
 435. 
 
 ' Rex V. Mayor, &c. of Hastings, 5 B. & Aid. 592; Grant on Corp. 34. 
 
 • Regina v. Mayor, «&c. of Wells, 4 Dowl. P. C. 562. 
 
 ' Hesketh v. Braddock, 8 Burr. 1856-1868; Grant on Corp. 194; London 
 ». Wood, 12 Mod. 674; 1 Balk. 398; Bosworth v. Budgen, 7 Mod. 461; Rex 
 t. Rogers, 2 Ld. Raym. 778; WUlc. on Corp. 157, 165. 
 
Ch. Xm.] MXiNICIPAL COUETS. 445 
 
 jurors, contains an express provision that no witness or 
 magistrate shall be incompetent or discLualified by reason of 
 Ms being liable to contribute to the fund of the corporation, 
 and regulates in general the proceedings therein for viola- 
 tion of by-laws or ordinances, and the collection and en- 
 forcement of penalties.' 
 
 It may, however, be observed that the power to make 
 by-laws is limited, and does not extend to acts criminal in 
 their nature, and which are punishable by criminal statutes 
 in force throughout the municipality. 
 
 American Qorporation Courts— Constitutional Provisions. 
 
 § 357. In this country it is usual to provide in the 
 charter or organic act of a municipal corporation for a local 
 or special tribunal, called by different names, such as the 
 mayor' s court, recorder' s court, city court, and the like ; 
 and which is invested with jurisdiction over complaints and 
 prosecutions for the violation of the ordinances of the cor- 
 poration, and often, for public convenience, with special 
 civil and limited criminal jurisdiction under the laws of the 
 state. 
 
 It is competent for the legislature to provide for the 
 establishment of these inferior courts, and to invest them 
 with such measure of power and jurisdiction as may be 
 deemed expedient, if no provision of the constitution of the 
 particular state be infringed." 
 
 ■ 5 and 6 Will. IV. chap. LXXVI. sees. 90, 91-11S-134, 1835. 
 
 ^ State i>. Mayor of Charleston, 14 Rich. (So. Car.), Law, 480; State ». 
 Helfrid, 3 Nott & McCord, 333, 1830. Full discussion of legislative power 
 to create inferior courts, and define jurisdiction. li. ; Gray ». The State, 2 
 Barring. (Del.) 76, 1835. Mayor's court an inferior court within meaning 
 of state constitution. Ih.; Egleston ®, City Council, 1 Const. (So. Car.) E. 
 45 1818. As to official character of city recorder. Ih. ; Schroder v. City 
 Council, 3 Const. R. 736 ; S. C, 3 Brev. 533 ; Tesh ®. Commonwealth, 4 
 Dana, 533 ; Nugent «. The State, 18 Ala. 521, 1831. Holding the city court 
 of Mobile, which is invested with criminal jurisdiction, and from whose 
 judgment an appeal lies, to be constitutional, and defining meaning of in- 
 terim- court. 1 6. ; New Orleans ®. Costello, 14 La. An. 87 ; Myers v. People, 
 36 111. 173; Davis ». Woolnough, 9 Iowa, 104; People «. Wilson, 15 111. 389; 
 State*. Maynard, 14 111. 420; Beesman c. Peoria, 16 111. 484; Holmes®. 
 Fihlenbirg, '54 111. 303, 1870; Van Swartow ». Commonwealth, 34 Pa. St. 
 
446 MTINICIPAL CORPORATIONS. [Oh. SH. 
 
 358. We have elsewliere shown that the courts have 
 aniformly held that it was competent for the state legisla- 
 
 131. 1854 ; Tiemey v. Dodge, 9 Minn. 166 ; Bums «. La Grange, 17 Texas, 
 415, 1856; Ex parte Slattery, 3 Ark. 434; 11. 561 ; Graham v. State, 1 Pike 
 (Ark.) 171; Floyd «. Commissioners, 14 Geo. 854, 1853; State o. Guttierrez 
 15 La. An. 190; Muscatine «. Steck, 7 Iowa, 505; Richmond Mayoralty Case, 
 19 Gratt. (Va.) 673, 1870. The superior court of the city of San Francisco 
 is constitutional. Scale «. Mitchell, 5 Cal. 403 ; Vassault «. Austin, 36 Cal. 
 691 ; Hickman v. O'Neal, 10 Cal. 394. The constitution of California, as 
 amended in 1862, authorized the legi-ilature to establish "recorder's or other 
 inferior courts in any incorporated city or town ;" and it was held, in view 
 of the prior decisions in the state just cited, that the municipal criminal 
 court of the city and county of San Francisco was an inferior court, and 
 constitutional. People v. Nyland, 41 Cal. 129, 1871; Stratman, Ex parte, 
 39 Cal. 517, 1870. The Hustings ■ Court of Richmond is constitutional. 
 Chahoon's Case, 21 Gratt. (Va.) 833, 1871 ; Richmond Mayoralty Case, 19 
 Gratt. (Va.) 673, 1870. 
 
 Under a constitutional provision declaring that " the judicial power shall 
 be vested in a Supreme Court, in district courts, and in justices of the 
 peace," an act conferring judicial powers on the mayor of a city was con- 
 sidered void, and it was held that for violations of its ordinances the corpo- 
 ration should resort to the judicial tribunals organized under the constitu- 
 tion. Lafon -0. Dufrocq, 9 La. An. 350, 1854. But see The State v. Young, 
 3 Kansas, 445, 1866, where a provision in an organic act that the judicial 
 power shall be vested exclusively in a Supreme Court, district, probate, and 
 justice courts, was held not to prohibit the legislature from establishing 
 municipal courts for the enforcment of municipal regulations and ordin- 
 ances. And this seems to be the correct view. Shafer v. Mumma, 17 Md. 
 331. In Hutchins v. Scott, 4 Halst. (N. J.) 318, 1837, the objection was 
 made that the legislature could not constitutionally confer the powers of 
 justices of the peace on the mayor, recorder, or aldermen of a dty or borough, 
 the argument being that since the constitution provided for the appoint- 
 ment of justices of the peace only, and not for corporate oflBcers, officers 
 exercising the authority and powers of a justice of the peace should be ap- 
 pointed as such; but the objection was not sustained. In Illinois, mayors 
 of cities cannot, it is held, be constitutionally invested with judicial power. 
 The State, &c. v. Maynard, 14 III. 430 ; Beesman s. Peoria, 16 111. 484. By 
 the general law of Indiana of 1857, for the incorporation of cities, mayors, 
 in addition to their duties proper, have, "within the limits of cities, the 
 jurisdiction and powers of a justice of the peace in all matters, civil and 
 criminal, arising under the laws of the state, and for crimes and misde- 
 meanors a jurisdiction co-extensive with the county." The constitution of 
 the same state (art. VII. sec 16) declared that " no person elected to any 
 judieidl office shall, during the term, be eligible to any office of trust or 
 profit under the state, other than a judicial office." One Wallace was 
 elected mayor of Indianapolis, and within his term he resigned and received 
 a majority of votes for sheriff of the county. It was held by the Supreme 
 
Ch. Xm.] MUNICIPAL COURTS. 447 
 
 tures to create municipal corporations with powers of local 
 government, and to authorize them to adopt ordinances or 
 
 Court of Indiana (Waldo v. Wallace, 13 Ind. 569, 1859; Gulick v. New, 14 
 11. 93), that Wallace was a "judicial officer," and therefore ineligible to 
 the office of sheriff; that the voters of the county were chargeable with 
 notice of his ineligibility ; that votes cast for him were therefore ineffectual, 
 and that his competitor, having received the greatest number of legal votes, 
 though not a majority of the ballots, was duly elected. Notwithstanding 
 the great consideration which these cases received, I venture, with great 
 deference, to state that it is by no means clear to my mind that the mayor 
 was a " judicial officer " within the meaning of the constitution. See, as 
 bearing upon the above decision, and illustrative of the nature of the office 
 of mayor, Howard v. Shoemaker, 35 Ind. Ill, 1871 ; Morrison v. McDonald, 
 21 Maine, 550, 1843; State v. Maynard, 14 HI. 419, 1853; Commonwealth v. 
 Dallas, 4 Dallas, 239 ; S. C. more fully, 3 Teates, 300, 1801 ; State «. Wil- 
 mington, 3 Harring. (Del.) 394, 1839. Authority of a mayor under a statute 
 investing him with the powers of a justice of the peace. State v. Perkins, 
 4 Zabr. (M. J.) 409 ; 1 Harr. (N". J.) 387. See Baton Rouge v. Deering, 15 
 La. An. 308. A constitutional provision as to eligibility "to the office of 
 judge of any court of the state," &c., and requiring a two years' residence "in 
 the division, circuit, or county," was considered to have no reference to the 
 office of recorder of a city. The People «. Wilson, 15 HI. 389. 
 
 The constitution of Nevada provided that "the legislature may also 
 establish courts for municipal purposes only, in incorporated cities and 
 towns," and it was held that an act authorizing the city recorder to ex- 
 ercise the duties of committing magistrates in respect to offences against 
 t 'ae public laws of the state was in conflict with the constitution. Meagher 
 V. County, 5 Nev. 344, 1869. The constitution of Maryland contains a pro- 
 vision that " the judicial power of the state shall be vested in a Court of 
 Appeals, in circuit courts, in such courts for the city of Baltimore as 
 may be hereafter prescribed, and in justices of the peace," and it was held 
 that the legislature might authorize municipal courts to try and punish dis- 
 orderly persons and lewd women within the corporate limits, and generally 
 to authorize the corporate authorities to exercise police powers, which were 
 distinguished from the ordinary judiciary powers of the state. Shafer v. 
 Mumma, 17 Md. 331, 1861. Further as to construction of constitution of 
 Maryland as to judicial powers of Mayors. Hagerstown v. Dechert, 33 Md. 
 369, 1869. 
 
 Under the constitution of North Carolina " special courts " are author- 
 ized "for the trial of misdemeanors in cities and towns where they may be 
 necessary;" and it was held to be no objection to an act of the legislature 
 that it did not authorize the officers of such court to try persons charged 
 with misdemeanors, but only to bind them over.' State ». Pender, 66 No. 
 Car. 318 1873. But under the constitution the legislature cannot confer 
 upon mayors the judicial powers of justices of the neace in ei/eil actions. 
 Edenton v. Wool, 65 Ih. 379. 
 
448 MTTNICIPAL CORPORATIONS. [Ch. XHL 
 
 by-laws witJi appropriate penalties for their violation. The 
 power to do this includes, by fair implication, the power 
 to authorize violations of ordinances (where the acts are not 
 criminal in their nature) to be tried and determined in a 
 summary manner, by a local or corporation tribunal. 
 
 The distinction between statute law and municipal by- 
 laws has been pointed out, and the subject of concurrent 
 prohibitions of the same act by the general law and by the 
 local ordinances of a municipality treated, in the chapter 
 on Ordinances. The distinction is there drawn, and is to be 
 observed between acts not essentially criminal, relating to 
 ^lunicipal police, and those intrinsically criminal, and 
 which are made punishable by the general laws of the state. 
 The pecuniary penalties which are annexed to violations of 
 the former class, the legislature may, we think, authorize 
 the corporation to enforce in its own name, by civil action, 
 or by complaint, and provision need not necessarily be made 
 that they shaU be prosecuted in the name of the people or 
 of the state.' 
 
 ' Barter v. Common-wealth, 3 Pa. (Pen. & W-) 353 ; Weeks v. Foreman, 
 1 Harrison (N. J.), 337; Ewbank v. Ashley, 36 111. 177; "Williams b. Augus- 
 ta, 4 Geo. 509 ; Floyd v. Commissioners, 14 Geo. 354 ; Kip ®. Patterson, 2 
 Dutch. (Kf. J.) 298; Lewistown v. Proctor, 33 111. 533; State o. Jackson, 8 
 Mich. 110. See State v. Stearns, 11 Fost. 106 ; Goddard, Petitioner, 16 Pick. 
 504 ; Fink v. MHwaukee, 17 Wis. 26. 
 
 The constitution of the state of Iowa contains this provision: " The style 
 of all process shall be ' The State of Iowa,' and all prosecutions shall be con- 
 ducted in the name and by the authority of the same." Constitution of 
 Iowa, art. V. sec. 8. The charter of the city of Davenport, in terms, 
 authorized prosecutions for violations of municipal ordinances to be insti- 
 tuted in the name of the city, and it was contended that this portion of the 
 charter was in conflict with the above quoted provision of the constitution. 
 But the Supreme Court, in the case of Davenport c. Bird, 4 Iowa, 534, 
 1871, held otherwise. It was a prosecution in the name of the city against 
 the defendant for a violation of an ordinance of a police nature, but for 
 which, under the charter, the city was authorized to punish by a limited 
 fine and imprisonment. In giving the opinion of the court. Miller, J., says: 
 "Is it necessary, under the constitution, that all prosecutions for violations 
 of municipal police ordinances shall be conducted in the name and by the 
 aiUhm-ity of the state of Iowa ? Or, in other words, is that clause of the 
 city charter of Davenport, which directs that ' all suits, actions, and prose- 
 cutions be instituted, commenced, and prosecuted in tXe name of the city of 
 Davenport,' in conflict with the constitutional provision before refererd to ?" 
 We are of opinion that it is not. This clause of . the constitation occurs in 
 
Ch. Xin.] MUNICIPAL COURTS. 4^ 
 
 359. In creating local tribunals, however, and in pre- 
 scribing their jurisdiction, it is essential that the legislature 
 should keep in view two cardinal considerations : First. 
 That these inferior cqurts will have only such jurisdiction, 
 and can exercise only such powers, as are expressly given, 
 or necessarily implied. Fair doubts as to the extent of 
 jurisdiction are resolved against the corporation ; to this 
 effect are all the authorities. Second. Regard should also 
 be had to constitutional provisions intended to secure the 
 liberty and protect the rights of the citizen. The state con- 
 stitutions contain the substance of- the provisions of Magna 
 Charta to the effect that no citizen shall be deprived of life, 
 liberty, or property but by the judgment of his peers or by 
 
 art. v., which treats of the judicial department of the government. This 
 article vests and defines the judicial power of the state, establishes the 
 tenure of office of the judges, and defines the mode of their election ; fixes 
 their salary and limits the number of judicial districts ; provides for the 
 election of an attorney general, and other matters pertaining to the judicial 
 arm of the state, among which is the clause under consideration. From all 
 this, it seems manifest that the requirement ' that all proseeutions shall be 
 conducted in the name of "The State of Iowa"' contemplates such criminal 
 prosecfutions as shall be instituted and prosecuted before the tribunals which 
 areprovided for in that article of the constitution under the statutes of the 
 state. It is fitting and appropriate that prosecutions for violations of the 
 criminal laws of the state should be carried on in the name of the govern- 
 ment. But there is no fitness or propriety in requiring the state to be a 
 party to every petty prosecution under the police regulations of a municipal 
 corporation. Such a construction of this article of the constitution seems 
 to us unwarranted, and not intended by the framers of the constitution. 
 It was held by the Supreme Court of Pennsylvania that the word process, in 
 the 12th section of the 5th article of the constitution of the state of Penn- 
 sylvania, which provides that ' the style of all process shall be the Oommon- 
 weglth of Pennsyhama,' was intended to refer to such writs only as should 
 become necessary to be issued in the course of the exercise of t^i&t judicial 
 power which is established and provided for in the article of the constitu- 
 tion, and forms exclusively the subject matter of it. On the same principle, 
 we are of opinion that the word ' prosecutions,' in the 8th section of article 
 V. of our constitution, was intended to refer only to such criminal prosecu- 
 tions under state laws as should be cognizable by Vae judicial power, which 
 is established and provided for in that article, and that it was not intended 
 to include prosecutions under ordinances of municipal corporations cogniz- 
 able before local police magistrates." 
 
 And the same view is held by the Court of Appeals of Kentucky. Wil- 
 liamson V. Commonwealth, 4 B. Mon. 146, 1843. As to mode of enforce- 
 ment and requisites of complaints, vide chapter on Ordinances, sec. 341. 
 39 
 
450 MUKICrPAL CORPORATIONS. [Ch. XIH. 
 
 the law of tie land, and also provisions, more or less exten- 
 sive, securing the right of trial by jury. These and other 
 provisions of the fundamental law cannot be violated in acts 
 of the legislature establishing and fixing the jurisdiction of 
 the corporation court or tribunal.' 
 
 Citizens Competent to he Local Judges, Jurors, and Wit- 
 nesses. 
 
 * 
 
 § 360. The maxim of the common law above adverted 
 to, that no one shall be a judge in his own case, has no Just 
 application to legislation creating municipal courts, and in- 
 vesting them with jurisdiction to try complaints for breaches 
 of municipal ordinances. The mayor, though a citizen of 
 the corporation, may be clothed with judicial powers of this 
 character, and the inhabitants, though interested in a min- 
 ute degree in the recovery, are, or at least may be declared, 
 competent witnesses. In this respect the common law rules 
 have not been adopted and applied by the American courts 
 to onr municipal corporations.' 
 
 ' Zylstra s. The Corporation of Charleston, 1 Bay, 382, 1794 ; People v. 
 Slaughter, 3 Doug. (Mich.) 334, 1842. 
 
 " Thomas v. Mount Vernon, 9 Ohio, 290, 1839 ; Commonwealth «. Read, 
 1 Gray (Mass.) 475 ; The Mayor t. Long, 31 Mo. 369, 1861 ; Commonwealth 
 p. Ryan, 5 Mass. 90; Cooley Const. Lim. 410, 412. 
 
 In The City Council ». Pepper, 1 Rich. (So. Car.) Law, 364, 1845, the de- 
 fendant, a non-resident of the city, was prosecuted in the city court, estab- 
 lished by act of the legislature, for violation of a city ordinance. The 
 defendant made the point that as the judge of that court, the sheriflf', and 
 jurors were corporators, and therefore interested in the penalty, they were 
 incompetent to try the cause. In holding this objection unsound, the 
 Court of Appeals, after alluding to Hesketh t. Braddock, 3 Burr. 1847, re- 
 lied on by the defendant, remarks: " The statutory authority given to the 
 city court to try aU offenders against city ordinances, impliedly declares that, 
 notwithstanding the common law objection, it was right and proper to give 
 it the power to enforce the city laws against all offenders. The interest is 
 too minute, too slight, to excite prejudice against a defendant ; for the-judge, 
 slieriff, and jurors are members of a corporation of many thousand mem- 
 bers. What interest of value have they in a fine of twenty dollars ? It 
 would put a most eminent calculator to great trouble to ascertain the very 
 minute grain of interest which each of these gentlemen might have. To 
 remove so shadowy and slight an objection, the legislature thought proper 
 to clothe the city court, consisting of its judge, clerk, sheriff and jurors, 
 with authority to try the defendant, and he cannot now object to it." Per 
 
Ch. xm.] ■ MUNICIPAL COURTS. 451 
 
 Bwni/niary Proceedings may, in Certain Cases, he Author- 
 ized. — Jury Trial. 
 
 § 361 Proceedings for the violation of municipal ordi- 
 nances are frequently summary in their character, and it 
 has been made a question how far statutes or charters au- 
 thorizing such proceedings are valid, especially where no 
 provision is made for trial by jury. This must depend upon 
 the constitution of the state and the extent to which the 
 power of the legislature is therein restricted. OflFences 
 against ordinances properly made in virtue of the implied 
 or incidental power of the corporation, or in the exercise of 
 its legitimate police authority for the preservation of the 
 peace, good order, safety, and health of the place, and 
 which relate to minor acts and matters not embraced in the 
 public criminal statutes of the state, are not usually or 
 properly regarded as criminal, and hence need not neces- 
 sarily be prosecuted by indictment or tried by a jury.' An 
 
 O'NeaU, J., City Council ». Pepper, 1 Rich. (So. Oar.) Law, 364, 1845 ; City 
 Council V. King, 4 McNott (So. Car.) 487; Corwein ». Hames, 11 Johns. 76, 
 1814. The mayor is not disqualified from presiding in the Mayor's Court, 
 before which the proceedings are held, from the fact that he is the owner 
 of a lot on the street sought to be widened. The Mayor v. Long, 31 Mo. 
 369, 1861. 
 
 ' Williams v. Augusta, 4 Geo. 509, 1848 ; approved, Floyd ». Oommis- 
 Bioners, 14 Geo. 358, 1858; Vason r>. Augusta, 88 Geo. 543, 1868; States. 
 Guttierrez,15 La. An. 190 ; Tiemey v. Dodge, 9 Minn. 166, 186 ; "Byers v. Com- 
 monwealth, 42 Pa. St. 89; 1 Bish. Cr. Pr. sec. 758; State v. Conlin, 37 Vt. 
 318. Thus, in New Jersey it is held that legislative authority to municipal 
 courts to punish violations of ordinances by a limited fine and imprison- 
 ment, without providing for a trial by jury, is not in conflict with the con- 
 stitutional provision that "the right of trial by jury shall remain inviolate." 
 McGear «. Woodruff, 33 N. J. Law, 313, 1868 ; Johnson v. Barclay, 1 Harr. 
 (N. J.) 1. Ante, sees. 300, 344, 345. 
 
 Treating of this subject, Mr. Sedgwick says : " Extensive and summary 
 police powers are constantly exercised in all the states of the Union for the 
 repression of breaches of the peace and petty offences ; and these statutes 
 are not supposed to conflict with the constitutional provisions securing to 
 the citizens a trial by jury." Stat, and Const. Law, 548, 549 ; Oooley, Const. 
 Lim. 596. In Williams v. Augusta, siipra, proceedings before a city council 
 for violations of its ordinances, although punishable by flne, were consid- 
 ered not to be " criminal cases " within the moaning of the constitution of 
 Georgia, vesting the jurisdiction of all criminal cases in tribunals other than 
 
453 MUNICIPAL CORPORATIONS. [Ch. Xm. 
 
 act of the legislature authorizing the arrest of professional 
 thieves and burglars frequenting any railroad depot, &c., 
 in the city of Philadelphia, and their commitment by the 
 mayor, without a trial by jury, is not in conflict with the 
 provision of the constitution of the state, which guarantees 
 "that trial by jury shall be as heretofore, and the right 
 thereof remain inviolate." 
 
 corporation courts, the court being of opinion that the term "criminal 
 cases," as used in the constitution, had reference to such acts and omissions 
 as are in violation of the public laws of the state, and not to violations of 
 local ordinances made for the internal police and government of the city. 
 In the state last named the settled rule is that the same act cannot be twice 
 punished — once by the municipality and once by the state — and the rule 
 is adopted that the municipal power ends where the right to indict under 
 state authority exists, as any other rule would deprive the accused of the 
 right to a jury trial. Jenkins v. Thomasville, 35 Geo. 145, 1866 ; Vason v. 
 Augusta, swpra; Savanna c. Hussey, 21 Geo. 80, 1857. So in Michigan: 
 People v. Slaughter, 2 Doug. (Mich.) 334, 1842. Otherwise in Kentucky: 
 Williamson v. Commonwealth, 4 B. Mon. 146, 1843. Ante, sees. 302, 844. 
 
 - Byers v. Commonwealth, 42 Pa. St. 89. In this case the extent of the 
 right of trial by jury at common law is thoroughly examined in a valuable 
 opinion by Strong, J., now one of the justices of the Supreme Court of the 
 United States, and the validity of summary convictions sustained. See 
 chapter on Ordinances, ante. The doctrine may be considered as settled 
 in Pennsylvania that municipal corporations are not within the constitu- 
 tional guaranty of jury trial, and that the right to a trial by jury may be 
 withheld by the legislature from new offerees, and from nem jurwdieHons 
 created by statute without common law powers, and from proceedings out 
 of (he course of (he common law. Rhines «. Clark, 51 Pa. St. 96, 1865, ^er 
 Woodward, C. J. ;DunsmorB's Appeal, 52 Pa. St. 374, 1866; Ewing «. Filley, 
 43 Pa. St. 384, 1862; Van Swartow a. Commonwealth, 24 Pa. St. 131, 1854. 
 See Barter v. Commonwealth, 3 Pa. (Pen. & W.) 253, 1831. A different 
 view is, to some extent, taken by the Supreme Court of Vermont under the 
 constitution of that state, whose language is, that "when an issue of fact 
 proper for cognizance of a jury shall be joined in a court of law, the parties 
 have a right to trial by jury which ought to be held sacred." In the opinion 
 of the court, a public corporation, although the liability on the corporation 
 be created by statute, is entitled to a jury trial, and therefore a statute pro- 
 viding for a compulsory and final reference of a case, in its nature one at 
 common law, is void, and the constitution applies to all controversies fit to 
 be tried by a jury, although the particular right was created by statute 
 enacted after the adoption of the constitution. Plimpton v. Somerset, 33 
 Vt. 283, 1860. It would, perhaps, be going too far to say that municipal 
 corporations are not in any case within the constitutional guaranty of a 
 trial by jury, and yet it would not follow that provision might not be made 
 
Ctt. Xm.] MUNICIPAL COURTS. 453 
 
 § 362. But where the legislature uudertakes to confer 
 upon the courts of the corporation, or where the corporation 
 seeks to give its court summary jurisdiction to fry persons 
 for acts which are indictable, or are criminal oflFences, it not 
 unfrequently happens that some provision of the constitu- 
 tion, designed to protect the rights or liberty of the citizen, 
 is violated. Thus, under a constitution declaring "that no 
 freeman shall be put to answer any criminal charge, but by 
 indictment," etc., and " that no freeman shall be convicted 
 of any crime, but by the unanimous verdict of a jury of 
 good and lawful men in open court, as heretofore used," 
 an act of the legislatiire which gives to an officer of an in- 
 corporated town the power of trying assaults and batteries, 
 or other crimes, is, in the opinion of the Supreme Court of 
 North Carolina, void, because it violates both of these pro- 
 visions of the constitution.^ 
 
 § 363. A similar view was taken in the state of Arkansas, 
 the constitution of which provided that ' * no man shall be 
 put to answer' any criminal charge but by presentment, in- 
 dictment, or impeachment ;" and it was held that the legis- 
 lature could not confer upon the corporation courts of a 
 city the power to punish an assault and battery — this being 
 a criminal charge — without presentment or indictment ; and 
 it was consequently decided that the judgment of convic- 
 tion of such a court for an assault and battery is coram non 
 judice, and constitutes no bar to a prosecution by indict- 
 ment In the courts of the state for the same offence. ° 
 
 for the trial in a summary way, before municipal courts, of petty or police 
 ofEences. Ante, Chap. IV. Bupra, sees. 300-303, 344, 345. 
 
 1 State V. Moss, 3 Jones (N. C.) Law, 66, 1854. See Tieruey i>. Dodge, 
 9 Minn. 166, 1864. The constitution of Louisiana (art. 103 inquires that 
 "prosecutions shall be by indictment or information. The accused shall 
 have a speedy trial by an impartial jury of the vicinage.'' Another article 
 (124) provides that " the mayors, recorders, &c., may be commissioned, and 
 the legislature may vest in them such criminal jurisdiction as may be 
 necessary for the punishment of minor crimes and offences, as the police 
 and good order of. the city of New Orleans may require." It was held that 
 article 103 laid down the general rule, to which article 134 was an excep- 
 tion, and that under the latter article it was competent for the legislature 
 to provide for the prosecution of minor oflFences, without indictment 01 
 jury trial, in the Recorder's Court." State v. Guttierrez,15 La. An. 190, 1860. 
 
 ' Rector v. State, 6 Ark. (1 Eng.) 187, 1845; Durr«. Howard, 6 Ark. 461 ; 
 
454 MTHSUGIPAL CORPORATIONS. [Ch, XIH. 
 
 § 364. The same doctrine was declared, in Michigan. 
 The constitution of that state contained a provision that 
 " no person shall be held to answer for a criminal offence 
 unless on the presentment of a grand jury, ^cept cases 
 cognizable by justices of the peace," &c.; and, by the 
 statutes of the state, the keeping of a bawdy house was 
 declared to be an offence punishable by fine and imprison- 
 ment. Under this state of the law the city of Detroit was 
 empowered by the legislature " to* make all such by-laws 
 and ordinances as may be deemed expedient by the common 
 council for effectually preventing and suppressing houses of 
 ill-fame within the limits of the city." It was held that the 
 term "criminal offence" in the constitution included both 
 felonies and misdemeanors, and embraced the offence 
 (which was such both at common law and by the statute of 
 the state) of keeping a house of ill-fame, and therefore an 
 ordiuance of the common council prescribing the punish- 
 ment for keeping such a house within the city and provid- 
 ing for the trial and conviction of the offenders in the 
 municipal court without indictment, was unconstitutional, 
 the judgment of the court resting upon the principle that 
 under the constitutional provision quoted, there could be no 
 summary conviction under an ordinance for that which is a 
 criminal offence by the general laws of the state.' 
 
 § 365. So, by the constitution of Texas, it is provided 
 that " in all cases in which, justices of the peace or inferior 
 
 Lewis V. State, 31 Ark. 211. But it is held in the same state that a corpo- 
 ration court may punish a person for using obscene language in the streets, 
 because such an offence is not declared criminal bj any statute of the state. 
 Slattery, Exporter, 3 Ark. 484. 
 
 ' People 7). Slaughter, 3 Doug. (Mich.) 334, 1843, note ; and see Welch v. 
 People, lb. 333, 1846. But in Kentucky, the constitution of which provides 
 that "no person shall, for any indictable offence, be proceeded against 
 criminally by information, " and that " all prosecutions shaU be carried on 
 in the name and by the authority of the commonwealth," the legislature 
 may authorize a city corporation to proceed in its name against offenders 
 for violating its ordinances, and punish them by fine, although the offence, 
 as in the case before the court (an assault and battery), is indictable under 
 the laws of the state. The court regarded the proceeding in the name of 
 the corporation as of a quOfd civil or penal nature, and not as criminal. 
 Williamson ». Commonwealth, 4 B. Mon. 146, 1843. 
 
Ch. Xni.] MIINICIPAL COUBTS. 
 
 tribunals shall have jurisdiction of causes where the pen- 
 alty is fine and imprisonment (except in cases of contempt), 
 the accused shall have the right of trial by jury," and 
 under this it was held that the mayor's court could not con- 
 stitutionally be invested with power to try summarily, and 
 without a jury, a person for assault and battery, in viola- 
 tion of the ordinances of the corporation, where the mayor 
 was authorized to impose a fine.' 
 
 § 366. In Zylstra v. The Corporation of Charleston, it 
 appeared that the organic act of the city gave to the com- 
 mon coiincil power to aflSlx and levy fines for all offences 
 against their by-laws, and there was no limitation of the 
 amount of the fines. In this respect the charter was sUent. 
 The "Court of Wardens" (the corporation tribunal) had 
 the power expressly given to it to commit for fines and penal- 
 ties. Uoder these circumstances the corporation of Charles- 
 ton passed an ordinance prohibiting the exercise of the 
 trade of candle and soap making within the limits of the 
 city, under a penalty of £100. Zylstra was prosecuted in 
 the Court of Wardens — composed of members of the city 
 council — for a violation of this by-law, and fined by this 
 court £100. On his motion to obtain a proMMMon it was 
 held, under the constitution of that state, that the proceed- 
 ings of the Court of Wardens were void, not being accord- 
 ing to the lex terrce recognized by Magna Charta, and ex- 
 pressly adopted by the state constitution. And the judges 
 who expressed themselves on that point were of opinion, 
 under the state constitution, that that tribunal could not be 
 invested with a jurisdiction greater than that exercised by 
 justices of the peace, unless there was provision for secur- 
 ing a trial by jury, which in the instance before the court 
 bad not been made." 
 
 ' Burus V. La Grange, 17 Texas, 415, 1856 ; S. P. Smith «. San Antonio, 
 n. 643. 
 
 « Zylstra v. Charleston, 1 Bay, 383, 1794. 
 
 In holding that the charter of the city of Lancaster did not confer upon 
 the councils the right to vest in the mayor and aldermen jurisdiction to con- 
 vict summarily, and imprison ip default of payment of the penalty affixed 
 to an ordinance, Oibaon, C. J., remarked: "Now, if the charter even pur- 
 ported to confer a power to imprison on summary conviction [for a mis- 
 
456 BTDOTCIPAL CORPORATIONS. • ^Ch. XIH, 
 
 Sufficient of the Right of a Jury Trial is Oiven hy Appeal. 
 
 % 367. It is, however, the prevailing doctrine, that al- 
 though the charge or matter in the municipal or local 
 courts be one, in respect of which the party is entitled to a 
 trial by jury, yet if by an appeal, clogged with no unrea- 
 sonable restrictions, he can have such a trial as a matter of 
 right in the appellate court, this is suflScient, and his consti- 
 tutional right to a jury trial is not ipvaded by the summary 
 proceeding in the first instance.' 
 
 demeanor] and without appeal to a jury, it would be so far unconstitutional 
 and void." Barter «. Commonwealth, 3 Pa. (Pen. & W.) 253, 1831. 
 
 A statute providing for summary conviction for a new offence before in- 
 ferior jurisdictions, without a jury, does not violate the provision of the 
 constitution that " trial by jury shall be as heretofore, and the right there- 
 of remain inviolate." Van Swartow o. Commonwealth, 34 Pa. St^ 131, 
 1854. See, also, Boring v. Williams, 17 Ala. 510 ; Tines ®. The State, 26 
 Ala. 165 ; In re Powers, 25 Vt. 261 ; Murphy v. People, 3 Cow. 815 ; Shirley 
 B. Lunenburg, 11 Mass. 379; Rhines v. Clark, 51 Pa. St. 96. Supra, sec. 
 861. 
 
 As to the right, under particular constitutional and statutory provisions, 
 to a, jury trial, for violations of municipal by-laws : Thomas ®. Ashland, 13 
 Ohio St. 134 ; Work ®. State, 3 lb. 296 ; Gray ». State, 2 Barring. (Del.) 
 76, 1836; Low v. Commissioners of Pilotage, R. M. Charlt. (Geo.) 302; 
 Green o. Mayor, lb. 368, 371; Williams v. Augusta, 4 Geo. 509; approved, 
 Floyd ®. Commissioners, 14 Geo. 354, 1853 ; State «. Guttierrez,15 La. An. 
 190 ; TrigaUy v. Memphis, 6 Coldw. (Tenn.) 382, 1869. 
 
 Jurisdiction of mayor^s, recorder's, and police courts under statutes or special 
 charters. Commonwealth s. Pindar, 11 Met. 539 ; Commonwealth b. Roark, 
 8 Cush. 210; Same a. Emery, 11 Cush. 406; Elders. Dwight Manufacturing 
 Company, 4 Gray, 301 ; State v. Ricker, 33 N. H. 179 ; Myers n. People, 36 
 HI. 173; Rice ®. State, 3 Kansas, 141; State v. Young, 3 Kansas, 445; 
 Malone v. Murphy, 2 Kansas, 350; Gray v. State, 2 Harring. (Del.) 76; 
 Hutchins ». Scott, 4 Halst. (N. J.) 318 ; Cincinnati v. Gwynne, 10 Ohio, ' 
 193 ; 14 lb. 250, 603 ; Markle ». Akron, 14 Ohio, 586 ; Weeks ®. Foreman, 1 
 Harris. (N. J.) 337; Truchelut ». City Council, 1 Nott & McC. 327; Thorn- 
 ton V. Smith, 1 Washing. (Va.) R. 106 ; McMuUen v. City Council, 1 Bay 
 (South Car.) 46; Zylstra v. Charleston, lb. 383; Willis v. Booneville, 38 
 Mo. 543; Fayette e. Shafroth, 35 Mo. 445; Sill ©. Corning, 15 N. Y. 397; 
 Goodrich s. Brown, 30 Iowa, 391, 1870. In re Penna. HaU, 5 Pa. St. 304, 
 1847. 
 
 Extent of jurisdiction tenitoriaUy. State ». Clegg, 27 Conn. 593 ; Covill 
 V. Phy (process) 26 111. 433; State v. McAi-thur, 13 Wis. 383. 
 
 ' Stewart v. Mayor, 7 Md. 501 ; Morford v. Barnes, 8 Yerger (Tenn.) 
 444 ; McDonald v. Schell, 6 Serg. & Rawle, 340 ; Beers v. Beers, 4 Conn. 
 
Ch. xni.] MUNICIPAL COURTS. 4S7 
 
 Review of Proceedings hy Swperior Tribunals. 
 
 % 368. With, respect to inferior jurisdictions, the right to 
 review their proceedings by the superior tribunals will not 
 be taken away unless the intention of the legislature to this 
 effect is expressed with unequivocal clearness. The author 
 ities cited in the note will show the great length to which 
 the courts go in preserving the right to review the proceed- 
 ings of subordinate tribunals, administered frequently by 
 men without professional or judicial knowledge or experi- 
 ence. A declaration by the statute concerning an inferior 
 tribunal, that its proceedings "shall be final and conclu- 
 sixie.y or '■'■ without appeal,'' etc., will not deprive a party 
 of the right of review by certiorari, error, or the proper 
 proceeding.' But where it is declared with respect to a 
 
 535; Jones v. Bobbins, 8 Grray, 339; Dorgan v. Boston, 12 Allen, 333; 
 Sedg. St. and Const. Law, 549; Cooley Const. Lim. 410. Infra, sec. 651. 
 
 * Rex ». Commissioners, 3 Keeble, 43 ; Rex «. Morley, . 3 Burr. 1040 ; 
 Lawton «. Commissioners, 3 Caines (N. T.) 179, 181 ; Starr «. Trustees, 6 
 Wend. 564; People*. Mayor, 3 Hill (N. T.) 9; Tierney b. Dodge, 9 Minn. 
 166 ; Ex parte Heath, 3 Hill (N. Y.) 42, 58, and cases cited and reviewed 
 by Oowen, J. 
 
 A kindred subject is treated in the chapter on Municipal Officers — 
 " Special Tribunal to Determine Election Contests for Municipal Offices," ante^ 
 sec. 139, and it is there shown that the ordinary constitutional provision 
 that the judicial power shall be vested in certain courts does not disable the 
 legislature from providing that the council of municipal corporations may, 
 finally determine the validity of the election of corporation officers. Mayor, 
 &c. V. Morgan, 7 Martin (La.) 1; 9 11. (N. S.) 381, 1838; State ii. Fitzger- 
 ald, 44 Mo. 435, 1869; Ewing ». Filley, 43 Pa. St. 384; State «. Johnson, 
 17 Ark. 407. But the supervisory jurisdiction of the superior courts will 
 not be held to be taken away by mere negative words. Grier «. Sbackle- 
 f ord, Const. Eep. 642 ; State ». Fitzgerald, sv/pra ; Commonwealth «. Mc- 
 Closkey, 3 Rawle, 369; Bx pa/rte Strahl, 16 Iowa, 369; State v. Funck, 17 
 Iowa, 365 ; Bateman v. Megowan, 1 Met. (Ky.) 533 ; Wammacks v. Hollo- 
 way, 3 Ala. 31 ; Hummer v. Hummer, 3 G. Greene, 42 ; State v. Marlow, 15 
 Ohio St. 114 ; Attorney General v. Corporation of Poole, 4 Mylne & Cr. 17 ; 
 Attorney General v. Aspinwall, II. 613; Parr ». Attorney General, 8 CI. & 
 F. 409 ; Taylor v. Americus, 39 Geo. 59. Post, chaps. XX. XXI. XXIL 
 Post, sec. 740. 
 
 The Supreme Court of Michigan, in reviewing, on certiorari, the legality 
 of a conviction of a defendant in the recorder's court on a complaint for 
 violating a municipal ordinance, speaking of the extent of the revisory 
 
458 MUNICIPAL CORPORATIONS. [Ch. XTTT, 
 
 court of general and superior jurisdiction, as of the Su- 
 preme Court of New York, that its action (for example, in 
 confirming appraisements for opening streets, or under a 
 railroad act) " shall he final and conclusive upon the parties 
 interested and upon all other persons," the right of appeal, 
 which would otherwise exist from the decision of such 
 30urt to a still higher tribunal, as to the Court of Appeals, 
 is destroyed.' A charter provision to the effect that appeals 
 and writs of error from judgment^of the mayor, in cases 
 arising under the charter, should only be allowed in cases 
 where the fine was over five dollars, was considered as 
 evincing the legislative intention that in cases where the 
 fine was under that sum the judgment should be final, and 
 
 power of the superior tribunals, and the nature and purposes of the municipal 
 tribunals, says: "The power of reviewing upon certiorari judicial proceed- 
 ings of inferior tribunals and bodies not according to the course of the 
 common law, has been long exercised in England, as well as in this country. 
 The power has been jealously maintained, and has been deemed necessary 
 to prevent oppression. There are certain classes of questions which, by 
 common undeffetanding from time immemorial, belong to the course of the 
 judicial inquiry under the laws of the land. The common law, and the 
 various charters and bills of rights, recognized and assured the right to 
 such an inquiry. And the constitution, in apportioning the judicial power, 
 as well as in aflSrming the immunity of life, liberty, and property, has 
 always been understood to guarantee to each citizen the right to have his 
 title to property, and other legal privileges, determined by the general 
 tribunals of the state. These municipal courts, so far as they act under city 
 by-laws, are not designed to decide between man and man, or to adminis- 
 ter general laws. They are ordained to prevent disorder in matters of local 
 convenience, and to regulate the use of public and qiiasi public easements, 
 so as to prevent confusion. If in exercising this power they can incident- 
 ally decide upon the rights of private property so as to determine its en- 
 joyment without review, there would seem to be a practical annihilation 
 of the right to resort to the general tribunals and the common law." Per 
 Campbell, J., Jackson v. People, 9 Mich. Ill, 117, 1860. Further, see chap. 
 XXU. post. 
 
 An appeal from inferior tribunals does not exist unless plainly given. 
 People V. Police Justice, 7 Mich. 456; Conboy v. Iowa City, 3 Iowa, 90; 
 Muscatine ®. Steck, 7 Iowa, 505 ; Dubuque ». Rebman, 1 Iowa, 444. Cer- 
 tiorari, on the other hand, will lie unless plainly denied, or other specific 
 remedy be given. Cunningham v. Squires, 2 West Va. 432, 1865. Post, 
 sec. 476, and chapter on Remedies Against Illegal Corporate Acts, post. 
 
 ' Matter of Canal and Walker streets, 12 N. T. (3 Kern.) 406, 185S ; 
 New York, &c. Railroad Company v. Marvin, 11 Ih. (1 Kern.) 376. 
 
Oh. Xm.] MUNICIPAL COURTS. 459 
 
 hence a writ of prohibition will not lie to restrain its collec- 
 tion, nor can it be reviewed on certiorari.^ 
 
 % 369. In Virginia it is decided that in a proceeding 
 before the mayor or a justice to impose a penalty on a party 
 for obstructing a street, the mayor or justice cannot, if the 
 defendant bona flde sets up title to the land claimed as a 
 street, inquire into the validity of the claim, the court hold- 
 ing that by the principles of the common law (which are 
 not changed by the statutes), a hona flde assertion of title 
 to property or to an incorporeal hereitament, or real fran- 
 chise, ousted the jurisdiction of these inferior magistrates 
 or tribunals.' 
 
 ' Wertheimer «. Mayor, &o., 29 Mo. 254, 1860. 
 
 ' Warwick «. Mayo, 15 Gratt. (Va.) 528, 1860. To the same effeet, see 
 Jackson ®. People, 9 Mich. Ill, 1860 ; Grand Bapids v. Hughes, 15 Mich. 
 54, 1866. See chapter on Streets. What record of conviction before cor- 
 poration oflScere or courts should show. Keeler v. Milledge, 4 Zabr. (N. J.) 
 142 ; Muscatine v. Steck, 7 Iowa, 505. See chap. XXII. post. 
 
mi MUNICIPAL CORPORATIONa [Oh. XIH 
 
 CHAPTER XIV. 
 
 CONTEACTS. 
 
 § 370, The mode of enforcing tlie contracts of mu- 
 nicipal corporations will be considered hereafter.' In this 
 chapter we wUl treat, in the order below indicated, of the 
 power of such corporations to make contracts of different 
 kinds, the mode of exercising the power, and the effect of 
 transcending it : 
 
 1. Extent of Power to Contract, and How Conferred — 
 sees. 371, 372. 
 
 2. Mode of Exercising the Power — sec. 373. 
 
 3. Seal Not Necessary Unless Required — May be Con- 
 cluded by Yote or Ordinance — sees. 374, 375. 
 
 4. When Bound by Contracts Made by Agents— Mode 
 of Execution — sees. 376-380. 
 
 5. Contracts Beyond Corporate Powers Yoid — Ultra 
 Vires a defence — sees. 381, 382. 
 
 6. Implied Contracts — When Deducible — sees. 383, 384. 
 
 7. Ratification of Unauthorized Contract — sees. 385-387. 
 
 8. Provision Requiring Letting to Lowest Bidder — sees. 
 388-392. 
 
 9. Contract of Suretyship — sees. 393. 
 
 10. Rights and Liabilities as Respects Authorized Con- 
 tracts — Illustrations — Cases Mentioned. Power to Settle 
 Disputed Claims — ^to Give Extra Compensation — to Employ 
 Attorneys — sees. 394-399. 
 
 11. Contracts for Public Works — Rights of Contractors 
 —sees. 400-403. 
 
 12. Same— Corporate Control Under Stipulation — sees. 
 400-403. 
 
 13. Evidences of Indebtedness — Negotiable Bonds — sees. 
 404, 405. 
 
 ' See post, chaps. XX. XXn. XXm. Legislative power over contracts 
 made by municipal corporations. See chap. IV. ante. 
 
Ch. XIV.] CONTBACTS. 461 
 
 14. Ordinary Warrants or Orders— Their Legal Nature 
 —sees. 406, 407. 
 
 14. Liability of Indorsers Thereof— sec. 408. 
 
 16. Payment and Cancellation of Orders and Warrants 
 —sec. 409. 
 
 17. Rights and Remedies of Holders Thereof- -sees. 
 410, 411. 
 
 18. Defences Thereto — XTLtra Vires — Fraud — Want of 
 Consideration — sec. 412. 
 
 19. Orders Payable out of a Particular Fund — sec, 413. 
 
 20. Interest on Corporate Indebtedness — sec. 414. 
 
 21. Railroad Aid Bonds — Course of Decision in U. S. 
 Supreme Court — sees. 415, 416, 
 
 22. Leading Cases in National Supreme Court on the 
 Subject Noticed— sees. 417, 422. 
 
 23. Decisions in State Courts Referred to — Conclusion 
 Stated— sees. 423-i26. 
 
 § 371. Extent of Power, and How Conferred. — In de- 
 termining the extent of the power of a municipal corpora- 
 tion to make contracts, and in ascertaining the mode in 
 which the power is to be exercised, the importance of a 
 careful study of the charter or incorporating act, and the 
 general legislation of the state on the subject, if there be 
 any, cannot be too strongly emphasized. Where there are 
 express provisions on the subject, these will, of course, 
 measure, as far as they extend, the authority of the cor- 
 poration. The power to make contracts, and sue and be 
 sued thereon, is usually conferred, in general terms, in the 
 incorporating act. But where the power is conferred in this 
 manner it is not to be construed as authorizing the making 
 of contracts of all descriptions, but only such as are neces- 
 sary and usual, fit and proper, to enable the corporation to 
 secure or carry into effect the purposes for which it was 
 created ; and the extent of the power will depend upon the 
 other provisions of the charter defining the matters in re- 
 spect of which the corporation is authorized to act. To the 
 extent necessary to execute the special powers and func- 
 tions with which it is endowed by its charter, there is, in ■ 
 
402 MHOTCIPAL corporations. [Ch. XIV. 
 
 deed, an implied or incidental authority to contract obli 
 gations and sue and be sued in the corporate name.' 
 
 ' 1 Kyd, 69, 70; 2 Kent Com. 234; AngeU & Ames, sees. 110, 271; 
 Oalena v. Commonwealth, 48 HI. 423, 1868 ; Straus s. Insarance Company, 
 5 Ohio St. 59, 1855 ; ChafEee v. Granger, 6 Mich. 51 ; Douglas «. Virginia 
 City, 5 Nev. 147, 1869; Goodrich o. Detroit, 12 Mich. 279; Bank of Colum- 
 bia ®. Patterson, 7 Cranch, 299, 1813 ; Siebrecht v. New Orleans, 12 La. An. 
 496, 1857*; Bateman v. Mayor, &c., 3 Hurl. & Nor. 322, 1858. 
 
 Under general authority to make all contracts necessary for its welfare, 
 a city may contract for water workt. Rome a, Cabot, 28 Geo. 50 ; see Wells 
 V. Atlanta, 43 Geo. 67. Duty and power as owner of water works. Mc- 
 Knight B. New Orleans, 24 La. An. 412, 1872. Grant ». Davenport, Iowa 
 Sup. Ct. 1873; Hall «. Houghton, 8 Mich. 458. Yot grading streets. Sturte- 
 vant «. Alton, 3 McLean, 393. For "hreahoater" to protect streets of a 
 city on the lake. Miller v. Milwaukee, 14 Wis. 643; approved, (irj'zteretfo, 
 by Cole, J., in Clason ®. Milwaukee, 80 Wis. 316, 321, 1872. Supra, sec. 
 261, note. Legislative power over munie^al coniraets. Ante, chap. IV. Grant 
 e. Davenport, Iowa Sup. Ct., 1873. 
 
 The city of Richmond possessed, under its charter, all the powers of 
 municipal corporations, including the power "to contract and be contracted 
 with," and its council was specially empowered to "pass all by-laws which 
 they shall deem necessary for the peace, comfort, convenience, good order, 
 good morals, health, or safety of the city, or of the people or property 
 therein." In April, 1865, in anticipation of the evacuation of the cify by 
 the confederate army and the entry of the national forces, the city eouneU 
 ordered the destruction of all the liquor in, the dty, and pledged the faith of 
 the city for the payment of its value, and it was decided by the Court of 
 Appeals that under the provision of the charter above mentioned the 
 council had authority to make the order and pledge, and hence the city was 
 responsible for the value of liquor destroyed under the order of the council. 
 Jones V. Richmond, 18 Gratt. (Va.) 517, 1868. The same question upon 
 the same resolutions of the city council was presented to the United States 
 Supreme Court in Richmond v. Smith, 15 Wall. 429, 1872; and it followed, 
 without examination into its correctness, the exposition of the charter given 
 by the State Court in Jones v. Richmond, supra. Upon the general princi- 
 ples of construction, the author doubts whether the order for the destruc- 
 tion of the liquors was within the scope of the corporate powers of the city. 
 Ante, sec. 55. Contract made by city under government therein set up by 
 the United States military authority held valid. Prather v. New Orleans, 
 24 La. An. 41, In the absence of a provision in the statute or ordinances 
 to the contrary, a municipal corporation may lawfully enter into a contract 
 with an officer of the corporation. Albright v. Town Council, 9 Rich. 
 (South Car.) Law, 399. In this case, a contract entered into between the 
 town council and intendant of a town, whereby the latter agreed to keep 
 the streets in repair, was held valid. See, also. Railroad Company v. Clag- 
 hom, Speers Eq. 562. Compare, City of Toronto b. Bowes, 4 Grant 
 (Canada) 504, as to contracts with members of the council. Ante, sec. 221, 
 note, sec. 230. 
 
Ch. XrV.] CONTRACTS. 463 
 
 § 373. Thus, if the corporation is authorized to erect 
 markets, it may contract to buy, or may receive a grant of 
 land, on which to place market buildings, and it may make 
 contracts for the erection of market houses. As it is the 
 general practice in granting municipal charters and in general 
 acts for the incorporation of towns and cities, to enumerate 
 their powers and define their duties, it will suflBce' in this 
 place to remark generally that the authority to enter into 
 contracts necessary and proper to carry into effect their 
 powers and discharge their duties is impliedly given to 
 every such, corporation. But this implied authority is only 
 co-extensive with the powers and duties of the corporation ; 
 and if any greater authority is claimed it must be sought 
 for in an express or special grant from the legislature. It 
 is scarcely necessary to observe that no contract can be 
 made by a corporation which is proMMted by its charter or 
 by the statute law of the state.' And it is a general and 
 fundamental principle of law, that all persons contracting 
 with a municipal corporation must, at tTieir peril, inquire 
 into the power of the corporation or its officers to make the 
 contract ; and a contract beyond the scope of the corporate 
 power is void, although it be under the seal of the corpora- 
 tion." So, also, those dealing with the agent of a municipal 
 
 ' Jackson V. Bowman, 39 Miss. 671, 1861. Contracts to violate the char- 
 ter, or to bargain away or restrict the free exercise of legislative discretion, 
 vested in a municipality or its officers in reference to public trusts, are void. 
 n. Thomas v. Richmond, 13 Wall. 349, 1870, in whicn notes issued by 
 the city to circulate as money in contravention of law were adjudged void, 
 and the city held not to be liable either in special or general assumpsit. 
 Ante, sec. 61, and cases there cited. 
 
 2 Marsh v. Fulton County, 10 Wall. 676, 1870; Ante, sec. 55; Infra, sec. 
 380; Leavenworth v. Rankin, 3 Kansas, 357, 1864; Horn v. Baltimore, 30 
 Md. 318, 1868; Bridgeport ». Railroad Company, 15 Conn. 475, 498, 1843 
 Haynes is. Covington, 13 Sm. & Mar. 408, 1850; Taft «. Pittsford, 38 Vt, 
 (3 Wms.) 386, 1856; City Council «. Plank Road Company, 31 Ala. 76, 1857 
 Steam Navigation Jompany n. Dandridge, 8 Gill & J. 348, 319; Hodges v. 
 BuflFalo, 3 Denio, 110; Baltimore ». Escbbach, 18 Md. 376, 383, 1861; Balti 
 more v. Reynolds,' 30 Md. 1 ; Dill ®. Inhabitants, &c., 7 Met. 438, 1844 
 Branham s. San Jose, 34 Cal. 585, 603; Sturtevant ». Alton, 3 McLean, 398, 
 1844; Wallace*. San Jose, 39 Cal. 180; State «. Kirkley, 39 Md. 85, 111 
 1868; Bateman ». Mayor, &c., 3 Hurl. & Nor. 333; State «. Haskell, 30 
 Iowa, 376. Within the scope of its power a corporation may contract to do 
 an act at any place other than the one where it is located. Bank of Utica 
 
464 MUNICIPAL CORPOBATIONS. [Ch. XIV. 
 
 corporation are likewise bound to ascertain tlie nature and 
 extent of his authority. This is certainly so in all cases 
 where this authority is special and of record, or conferred 
 by statute. The fact in such a case that the agent made 
 false representations in relation to his authority and what 
 he had already done, will not aid those who trusted to such 
 representations to establish a liability on the part of his 
 corporate principal.' 
 
 ■v. Smedes, 3 Cow. 662 ; Maddox v. Graham, 2 Met. (Ky.) 56. Or prospec- 
 tive in its terms. Davenport v. Hallowell, 10 Maine, 317. As to corporate 
 seal. Ante, sec. 130. Where a public corporation, transcending its legal 
 power, assumes to direct its officers — for example, commissioners of high- 
 ways — to bring an action in their own names, or in their name of office, 
 against third persons for trespasses upon the highways, and the action is 
 accordingly brought and the officers are defeated, they cannot sustain an 
 action against the corporation to be reimbursed their costs and expenses ; 
 and the reason is, that the action of a corporation directing sueh a suit to 
 be brought, being in excess of its lawful power, is void, and cannot be the 
 foundation of any contract, express or implied. Cornell v. Guilford, * 
 Denio, 510, Ante, sec. 98. 
 
 ' Baltimore v. Eschbach, 18 Md. 376, 282; Baltimore v. Reynolds, 20 
 Md. 1, 1863; Delafleld ». State of Illinois, 2 Hill (N.T.) 159, 174; 26 Wend. 
 1-93, 1841; affirming S. C, 8 Paige, 531, restraining unauthorized sale of 
 bonds. Hodges v. Buffalo, 2 Denio, 110 ; 3 Comst. 430 ; 2 Barb. 104 ; Super- 
 visors, &c. V. Bates, 17 N. T. 242, 1858. This case also determines how far, 
 in such a case, the sureties of such an agent or officer are liable for his acts. 
 And see cases cited li. p. 245. Chemung Canal Bank v. Supervisors, 5 
 Denio, 517, 1848 ; Overseers, &c. v. Same, 15 N. T. 341 ; 2 Comst. 178, per 
 Strong, 3. ; Marsh v. Fulton Co., 10 Wall. 676, 1870 ; Miner's Ditch Co. v. 
 Zellerbach, 37 Cal. 543, 1869 ; Swift v. Williamsburg, 34 Barb. 427 ; Hague 
 «. Philadelphia, 48 Pa. St. 527; State d. Kirkley, 29 Md. 85, 111; Horn v. 
 Baltimore, 30 Md. 218, 1868; Thomas®. Richmond, 12 Wall. 349, 1870, per 
 Bradley, J. 
 
 Special and limited authority to torrow money conferred upon the town 
 treasurer, when exercised, is exhausted, and the town is not liable for money 
 he subsequently borrows and converts to his own use, although he assumed to 
 act, and was, by the lender, supposed to be acting under the authority con- 
 ferred upon him. SavingsBank«.Winchester,8 Allen, 109, 1864; ante, sec. 81. 
 
 So in Upper Canada it is held that an individual dealing with a corpo- 
 ration through its council or the members of the governing body, is bound 
 to notice the objects and limits of their powers and the manner in which 
 those powers are to be exercised, and it should be borne in mind that their 
 acts, when beyond the scope of their authority or done in a manner unau- 
 thorized, are in general nugatory and not binding on the corporation. Ram- 
 say et al. V. The Western District Council, 4 U. C. Q. B. 374 ; Harr. Manual, 
 2nd ed. p. 20. 
 
Ch. Xn.] CONTRA.CTS. 465 
 
 § 373. Mode of Exercising the Power.— Respecting the 
 mode in which contracta by corporations should be made, 
 it is important to observe, that when, as is sometimes the 
 case, the mode of contracting is specially and plainly pre- 
 scribed and limited, that mode is exclusive, and must be 
 pursued, or the contract will not bind the corporation ;' but 
 the courts have sometimes regarded provisions on this sub- 
 ject as directory. Thus, where the charter directed the 
 mode in which moneys should be drawn from the treasury 
 to be by an order of the council, signed by the mayor, such 
 an order, issued upon a memorandum in the minutes of the 
 corporation, without a formal order being entered, was ad- 
 judged a sufficient compliance with the charter." But un- 
 less the mode be prescribed and limited, valid contracts 
 within the scope of the corporate powers may be made, as 
 we shall see, otherwise than under seal or in writing. 
 
 § 374. Seal not Necessary — Hotjo Concluded. — Modern 
 decisions have established the law to be, that the contracts 
 
 ' Head «. Insurance Company, 3 Cranch (U. S.) 127, 1804; White «. 
 New Orleans, 15 La. An. 667; Infra, sec. 388; Dey v. Jersey City, 19 N. J. 
 Eq. 413, 1869; Baltimore i>. Keynolds, 30 Md. 1. Speaking of this subject 
 in the case first cited, MarahaU, C. J., says: "The act of incorporation is to 
 them an enabling act; it gives them all the power they possess; it enables 
 them to contract, ' and when it prescribes to them a mode of contracting, they 
 must observe that mode, or the instrument no more creates a contract than 
 if the body had never been incorporated." Approved, Bank of United 
 States ». Dandridge, 13 Wheat. 64, 68, 1827 ; see also Angell & Ames Corp. 
 sec. 353 ; Diggle v. Railway Company, 5 Exch. 443 ; Homersham v. Wol. 
 &c. Company, 4 Eng. Law & Eq. 436 ; Erend ». Dennett, 4 C. B. (K. S.) 
 576 ; Butler ». Charlestown, 7 Gray (Mass.) 13 ; Trustees ». Cherry, 8 Ohio 
 St. 564, 1858 ; Bladen ». Philadelphia, 60 Pa. St. 464 ; McCracken v. San 
 Francisco, 16 Cal. 591 ; Piemental «. San Francisco, 31 Cal. 851 ; Zottman 
 «. San Francisco, 30 Cal. 90; Argenti v. San Francisco, 16 Cal. 355, 383, 
 opinion of I'ield, 0. J. Post, chapter on Taxation and Local Assessments. 
 If a corporation sue upon a contract, though it be executory on their part, 
 and not executed, this amounts to a conclusive admission that the contract 
 was duly entered into by them. Grant on Corp. 63 ; 5 Man. & Granger, 
 193. A contract by a city with street railway company held not concluded, 
 something remaining to be done. People's B. R. «. Memphis R. R. , 10 
 WaU. 38. 
 
 « Kelly V. Mayor, &c. of Brooklyn, 4 Hill (N. Y.) 263, 1843 ; see Neififer 
 V. Bank, 1 Head (Tenn.) 163 ; Penrose v. Taniere, 13 Queen's B. 1011 ; Mad- 
 dox ». Graham, 3 Met. (Ky.) 56. 
 30 
 
460 MUNICIPAL CORPOEATIONS. [Ch. XIV. 
 
 of imiTiicipal corporations need not be under seal Tinless the 
 charter so requires. The authorized body of a municipal 
 corporation may bind it by an ordinance, which, in favor 
 of private persons interested therein, may, if so intended, 
 operate as a contract ; or they may bind it by a resolution, 
 or by note clothe its officers, agents, or committee^, with 
 power to act for it ; and a contract made by persons thus 
 appointed by the corporation, though by parol (unless it be 
 one which the law requires to bean writing) will bind it.' 
 
 ' Fanning®. Gregoiie, 16 How. (U. S.) 524, 1853; AnU, sec. 133; Abbey 
 e. BiUups, 35 Miss. 618; Alton ®. Mnlledy, 21 111. 76, 1859; Western, &c. 
 Society «. Philadelphia, 31 Pa. St. 173 ; J5. 185 ; Clark v. Washington, 13 
 Wheat. 40, 1827; Hamilton t>. Railroad Company, 9 Ind. 359, 1857; Eoss 
 t). Madison, 1 Ind. (Cart.) 281, 1848 ; Story Agency, sec. 53, where it is said 
 that, " as the appointment of an agent of a corporation may not always be 
 evidenced by written vote, it is now the settled doctrine — at least in Amer- 
 ica — that it may be inferred and implied from the adoption or recognition 
 of the acts of the agent by the corporation." Infra, sec. 383. Parol con- 
 tract by council with city physician held valid, no provision of the charter 
 being contravened. Selma v. Mullen, 46 Ala. 411, 1871. See, also, Broot 
 Com. on Com. Law, 561-570. 
 
 In Fleckner v. United States Bank, 8 Wheat. (U. S.) 338, 357, 1833, it 
 was urged that a corporation could not authorize any act to be done by an 
 agent by a mere vote of the directors, but only by an appointment under its 
 corporate seal. But the court declared that such a doctrine, whatever may 
 have been its original correctness as applied to common law corporations, 
 had " no application to modern corporations created by statute, whose 
 charters contemplate the business of the corporation to be transacted by a 
 special body or board of directors. And the acts of such a body or board, 
 evidenced by a written vote, are as completely binding upon the corpora- 
 tion, and as complete authority to their agents, as the utmost solemn acts 
 done under the corporate seal." Per Story, J. Further, as to common 
 seal, see ante, sec. 130. Authority of agent, in absence of special restric- 
 tion, may be given by parol or inferred from acts. Detroit v. Jackson, 1 
 Doug. (Mich.) 106. See ante, sec. 130. Infra, sec. 383. 
 
 A provision in the organic act of a city, that " on the passage of every 
 by-law or order to enter into a contract by the council, the ayes and nays 
 shall be called and recorded," prescribes how the order to contract shall be 
 made and evidenced when directed by the council, but it is not a limitation 
 on the power of authorized agents to make a contract iy 'parol. Indianola 
 t). Jones, 29 Iowa, 282, 1870. Ante, sec. 339 ; Baker ®. Johnson Co. (parol 
 contract), 33 Iowa, 151. 
 
 Contract may be conchided ty ordinance or action of the council (accept- 
 ing proposals), without signature by parties. People ®. San Francisco, 37 
 Cal. 655, 1865 ; Sacramento ». Kirk, 7 Cal. 419 ; Logansport v. B1a,jkemore, 
 
Ch. XIV.] CONTRACTS. 467 
 
 § 375. The assent of a municjipal corporation to the 
 variation or modification of a contract neeA. not necessarily 
 be expressed by tbe formal action or resolution of the com- 
 mon conncil ; but it may be implied from acts relating to 
 the contract work subsequent to the date of the contract.' 
 
 § 376. Contracts made hy Agents — Mode of Execution. 
 — Where officers or agents of a corporation, duly appointed, 
 and acting within the scope of their authority in executing 
 an instrument in behalf of the corporation, sign their own 
 names and aflBix their own seals, such seals are simply nu- 
 gatory, and the instrument, according to the weight of 
 modern judicial opinion, is to be regarded as the simple 
 contract of the corporation, and will bind the corporation 
 and not the individuals executing it, where the purpose to 
 act for the corporation is manifest from the whole paper, 
 and where there are no words evincing an intention to as- 
 sume a personal liability.* 
 
 17 Ind. 318. How sho-wn. San Antonio v. Lewis, 9 Texas, 69. In Indian- 
 apolis s. Skeen, 17 Ind. 638, 1861, it was held that third persons dealing 
 with an agent of the city appointed by the council "fo negotiate its ionds at 
 not less than " a specified rate, were not obliged to look to the records of 
 the council for either his appointment or his instructions, since they were 
 not necessarily of record there ; but persons dealing with such an agent 
 are, of course, bound to ascertain the fa(it of his appointment and the ex- 
 tent of his authority, but not his private instructions. Authority of agent 
 to negotiate sales of ionds. Cady v. Watertown, 18 Wis. 323. 
 
 ' Messenger «. Bufialo, 21 K. T. 196, 1860. Where certain work is stipu- 
 lated to be done under the direction of a street commissioner of a city, this 
 oflBcer has authority, without a vote of the council, to authorize extra work 
 to be done, or materials to be furnished, where these are rendered necessary 
 by the action of the city authorities subsequent to the making of the con- 
 tract, and where, without such extra work or materials, it would be im- 
 possible to fulfill the requirements of the contract. Ih. Modification of 
 contracts by unauthorized officers not binding upon the corporation. Bone- 
 steel V. Mayor, &c. of New York, 33 N. Y. 163, 1860; Hague d. Philadelphia, 
 48 Pa. St. 537. As to changes in contracts iy parol, see Hasbrouck v. Mil- 
 waukee, 21 Wis. 317, 1866; compare Sacramento ». Kirk, 7 Cal. 419. Infra, 
 sec. 883. Acceptance by city of proposals to it ; see Springfield v. Harris, 
 107 Mass. 583, 1871. 
 
 ' Begents, &c. v. Detroit, &c., 13 Mich. 188; Sweetzer «. Mead, -5 Mich. 
 107 ; Bank of Metropolis v. Gottschalk, 14 Pet. 19 ; Story Agency, sees. 154, 
 ■260, 276, 377 ; Bank of Columbia v. Patterson, 7 Oranch, 399, 307 ; Hatch v. 
 Barr, 1 Ham. (Ohio) 390 ; Baker v. Chambles, 4 G. Greene (Iowa) 438 ; Lyon 
 
468 MTmiCIPAL CORPORATIONS. [Oh. XIV. 
 
 377. A few cases will be referred to, illustrating the 
 rule just stated. A contract in relation to the survey of a 
 city, a subject exclusively appertaining to the corporation, 
 
 «. Adamson, 7 Iowa, 501 ; 1 Am. Lead. Gas. 603 ; Mott a. Hicks, 1 Oow. 513, 
 534; Blanchard ®. Blackstone, 103 Mass. 343; Stanton v. Camp Tcontract 
 signed individually, with addition of "committee"), 4 Barb. 374; Mechan- 
 ics' Bank v. Baak of Columbia, 5 Wheat. 336; Hopkins v. Meha%, 11 Berg. 
 & Rawle, 136 ; Angell & Ames, sees. 393, ^5 ; ' Gale s. Kalamazoo, 38 Mich. 
 844, 1871 ; Burrill «. Boston, 3 Clifford 0. C. S90, 1867. "Where a town 
 clothes its agent, or its committee, with full power to make a contract, and 
 it is accordingly made, it is valid and binding, notwithstanding there has 
 been no formal acceptance by a vote, or even if it be afterwards rejected by 
 the corporation. Baveliport ■», HalloweU, 10 Maine, 31'7 ; Junkins «. School 
 District^ 39 Maine, 230, 185&; Willard v. Newburyport, 12 Pick. 227; 
 Kingsbury b. School District, 12 Met. 99, 1846. 
 
 Where school directors gave an authoiized bond for borrowed money, in 
 their individual names, as school directors, though signed and sealed in 
 their individual names, the corporation, and not the individuals, are liable 
 thereon. Heidelberg School Dist. d. Horst, 62 Pa. St. 301, 1869. 
 
 The power of a committee, appointed by a vote of a tovrn, ' ' to let out and 
 superintend the making " of a highway, is completely executed by the 
 making of a contract with a third person embracing the whole subject mat- 
 ter of the vote and by the superintending of the construction of the high- 
 way. And, therefore, if the person contracted vrith fails to complete the 
 road according to his contract, this is a matter for the town to deal with, 
 and the committee have no power, without new authority from the town, to 
 enter into a contract with another person for its completion. If they do so, 
 and pay money in pursuance thereof, the town is not liable to them therefor. 
 Nor is it liable if they transcend their power, and make a contract for a 
 more expensive road than they were authorized to do. Keyes v. Westford, 
 17 Hck. 373, 1835. 
 
 Power to a town committee "to superintend the building of a house for 
 the town," was adjudged to include the power to make the necessary con- 
 tracts, it not appearing that any other or special committee or agent was 
 appointed for that purpose — the court being of opinion that the making of 
 contracts was essential to the building of the house. Damon v. Granby, 2 
 Pick. 345, 1824. Ante, chaps. IX. X. Majority of committee must sign 
 contract. So held: Curtis «. Portland, 59 Maine, 483, 1871. ArOe, sec. 331, 
 and note. 
 
 It has been held in Upper Canada where work was done under a con 
 tract not made with the corporation or any of its known officers, but 
 merely with persons assuming to act as a duly appointed committee, 
 that no action would lie against the corporation. Stoneburgh a. The 
 Municipality of Brighton, 5 TJ. C. Law J. 38. No action can be sustained 
 for a breach of duty against the head of a corporation in not applying the 
 seal to make a contract between a corporation and an individual, founded 
 oa a refusal (which if there had been a previous valid contract) would have 
 
Ch. XIV.] OONTEAOTS. 469 
 
 was entered into "between T. Yan Y., J. W., C. D. C, a 
 committee appointed by tlie corporation of the city of 
 Albany for that purpose, of the first part, and John R. Jr., 
 of the second part." The parties of the first part agreed to 
 pay for the work to be done, and signed their individual 
 names and affixed their individual seals to the agreement. 
 The authority of the committee to act for the corporation 
 and to make the contract being conceded, it was ruled that 
 they were not personally liable, and th^t it must be enforced 
 by and against the corporation.' In another case, a contract 
 for the repair of an engine house of a city was entered into 
 by the inspector of the fire department in his own name, 
 describing himself as "G. N. S., inspector, &c., of the first 
 part," and signed in the same way. It was, in fact, made 
 for and on account of the city, and it was held that the city 
 was liable thereon, although its agent did not use its name 
 in contracting, the court being of opinion, however, that the 
 contract on its face showed it was made for the city.' 
 
 § 378. So, where on a sale of real property by a corpo- 
 ration, a memorandum of the sale was signed by the parties, 
 on which it was stated that the sale was made to A. B., the 
 purchaser, and that he, C. D., " mayor of the corporation, 
 in behalf of himself and the rest of the burgesses and com- 
 monalty of the borough of Caermarthen, do mutually agree 
 to perform and fulfill, on each of their parts respectively, the 
 conditions of the sale," and then came the signature of the 
 purchaser, and of "C. D., Mayor," it was held that the 
 
 constituted a breach of it ; in other words, there cannot be a remedy agarnst 
 the head of a corporation, equivalent to a remedy on the contract against 
 the corporation, had the contract been duly made so as to create a valid 
 and binding agreement. Fair v. Moore, 3 U. 0. C. P. 484; Harrison Muni- 
 cipal Manual for U. C. p. 20. 
 
 ' Randall ». Van Vechten, 19 Johns. 60, 1831 ; compare, however, Fullam 
 V. Brookfield, 9 Allen, 1, 1864, where the court denies the doctrine of Ran- 
 dall V. Van Vechten ; Bank, &c. v. Patterson, 7 Cranch, 399, and certain 
 dicta in Damon v. Granby, 3 Pick. 345. But the text states the prevailing 
 American rule. See also Dubois v. Canal Company, 4 Wend. 385 ; Wonell 
 V. Munn, 1 Seld. 339 ; Ford v. Williams, 3 Kern. 577, 585 ; Richardson o, 
 Bcott, &c. Co., 32 Cal. 150. 
 
 » Robinson v. St. Louis, 28 Mo. 488, 1859. 
 
470 MTJOTCIPAL CORPOEATIONS. [Ch. XIV. 
 
 agreement was that of the corporation, and not that of the 
 mayor personally ; and that, consequently, the mayor could 
 not sue thereon.' 
 
 § 379. But the action or contract of the officers of a 
 public corporation in their indimdual capacity, is not 
 binding upon the corporate body." For example : If the 
 selectmen of a town in New England, as individuals, 
 request a citizen to furnish supplied to a public enemy, to 
 prevent violence to the town, this gives no legal right of 
 recovety against the town ; and as the transaction was 
 wholly beyond the official duty of selectmen, or the duty 
 of the town as a corporation, it was doubted whether a 
 regular vote to pay the plaintiff would have been legal, 
 though it was admitted that a voluntary agreement among 
 the inhabitants to this effect would have been binding, being 
 founded on a meritorious consideration, as it was tJieir 
 property, and not that of the town, which was in danger.' 
 
 § 380. While the agent of a public corporation, who by 
 its vote or authority contracts for its use, cannot bind the 
 
 ' Bowen b. Morris, 3 Tatmt. 374, 387. The case of Burrill v. Boston, 3 
 Clifford' C. R. R. 590, 1867, presents also, an instance in which it was con- 
 sidered that a contract signed by the mayor was one intended to be made 
 on behalf of the corporation. 
 
 " Haliburton v. Frankford, 14 Mass. 214, 1817 ; Butler v. Charlestown, 7 
 Gray, 13, 1856. 
 
 " Haliburton ■b. Frankford, mpra ; Stetson v. Kempton, 13 Mass. 372, 
 1816. Bunill e. Boston, 3 Chfford, 0. C. R. 590,; 1867. Ante, sec. 13. A 
 majority of selectmen may, by statute, bind a town in New Hamp- 
 shire by their written contract when acting within the limits of their 
 authority. But a contract signed by one only of the selectmen in his own 
 name, " for the selectmen," does not bind the town, nor will it be rendered 
 valid by proof that another selectman authorized him so to sign the contract, 
 or by proof that such was the practice in the town. If the corporate name 
 had been affixed by one, such proof might have been sufficient. Andover 
 V. Grafton, 7 N. H. 298, 305 ; Mason o. Bristol, 10 N. H. 36 ; Hanover v. 
 Eaton, 3 N. H. 38. Powers of towns in New England. Ante, sees. 12, 13. 
 
 Contracts made by a majority of the board of aldermen, without any offi- 
 cial action of the city council, are not binding upon the city; so decided 
 where counsel were thus employed who rendered legal services beneficial to 
 the corporation. Butler v. Charlestown, 7 Gray, 12, 1856; see, also, Sikes 
 J). Hatfield, 13 Gray, 347, 1859. See chapter on Corporate Meetings, ante. 
 
Ch. XIV.] CONTRACTS. 471 
 
 corporation by making a contract hy deed : yet if such, 
 agent had authority to make the contract, it is binding upon 
 the corporation as evidence of such contract. It follows 
 that a contract of an agent or committee of a town, under 
 his or their own seals, cannot be declared on, in covenant 
 or debt, as the deed of the town. The form of the remedy 
 against the town' is for damages, or in assumpsit. Although 
 inDamon v. Granby" it was left an open question, whether 
 a vote of a town having no corporate seal, expressly au- 
 thorizing an agent to make a deed of land, or other contract, 
 under seal, would, if executed according to the power, 
 become technically the deed of the town, no substantial 
 reason is perceived. why such an instrument, thus executed, 
 should not be treated as having all the attributes and 
 qualities of a sealed instrument. If the corporation, how- 
 ever, has a common seal, which is the case with towns in 
 many of the States, and with cities generally, and it is affixed 
 to an instrument in pursuance of a vote of the corporation, 
 or by the proper officer, such an instrument is, beyond 
 doubt, technically the deed of the corporation.' 
 
 § 381. Contracts in Excess of Corporate Power — Ultra 
 Vires as a Defence. — The general principle of law is settled, 
 beyond controversy, that the agents, officers, or even city 
 council, of a municipal corporation, cannot bind the corpo- 
 ration by any contract which is beyond the scope of its 
 powers, or entirely foreign to the purposes of the corpora- 
 tion, or which (not being in terms authorized) is against 
 public policy. This doctrine grows out' of the nature of 
 such institutions, and rests upon reasonable and solid 
 grounds. The inhabitants are the corporators — the officers 
 are but the public agents of the corporation. The duties 
 and powers of the officers or public agents of the corpora- 
 
 ' Randall v. Van Vechten, 19 Johns. 60, 65, 1821 ; Damon ». Granty, 2 
 Pick. 345, 1834 ; compare, FuUam a. Brookfleld, 9 Allen, 1 ; Bank of Colum- 
 bia s. Patterson's Administrator, 7 Cranch, 339, and rule as stated by Story, 
 J., 306, 1813; Clark v. Cuckfleld Union, 11 Eng. Law & Eq. 443; Penning- 
 ton V. Taniere, 13 Queen's B. 1011. Ante, sec. 133. 
 
 ' Damon v. Granby, 3 Pick. 345, 353, 1834. 
 
 « II. Randall «. Van Vechten, 19 Johns. 60, 65, 1831. But see Fu lam- 
 B. Brookfleld, 9 Allen, 1. Corporate seal. Ante, sees. 130-133. 
 
472 MUNICIPAL CORPORATIONS, [Ch. XIV. 
 
 tion, are prescribed by statute or charter, which all persons 
 not only may know, but are bound to know. The opposite 
 doctrine would be fraught with such danger, and accom- 
 panied with such abuse, that it would soon end in the ruin 
 of municipalities, or be legislatively overthrown. These 
 considerations vindicate both the reasonableness and neces- 
 sity of the rule that the corponftion is bound only when its 
 agents or officers, by whom it can alone act, if it acts at aU, 
 keep vnthin the limits of the chartered authority of the 
 corporation. The history of the workings of municipal 
 bodies has demonstrated the salutary nature of this principle, 
 "and that it is the part of true wisdom to keep the corporate 
 win^ clipped down to the lawful standard.' It residts 
 fromrthis doctrine that, unauthorized contracts are void, 
 and in actions thereon the corporation may successfully 
 interpose the plea of ultra vires, setting up as a defence its 
 own^want of power under its charter or constituent statute 
 to enter into the contract.' In favor of bona fide holders of 
 
 ' This subject is touched upon in the concluding portion of chap. I. ante. 
 
 " Post, chap. XXin. sec. 749 ; and see also the following cases : Marsh 
 «. Fulton County, 10 Wall. 676, 1870; Thomas v. Richmond, 13 Wall. 349, 
 1870; Bridgeport s. Housatonic Railroad Company, 15 Conn. 475, 493, 
 1843; Burrill «. Boston, 2 Clifford C. C. 590, 1867; Martin d. Mayor, &c., 1 
 Hill (N. T.) 545, 1841 ; Overseers, &c. «. Same, 18 Johns. 382 ; Donovan »." 
 New York, 33 N. Y. 291 ; Siebrecht v. New Orleans, 13 La. An. 496, 1857 ; 
 Olark v. Des Moines, 19 Iowa, 199, 209, 1865; Loker v. Brookline, 13 Pick. 
 343, 348 ; Philadelphia ®. Flanigen, 47 Pa. St. 21 ; Trustees v. Cherry, 8 
 Ohio St. 564; Hague ». Philadelphia, 48 Pa. St. 527; Albany v. CunlifE, 3 
 Comst. (N. Y.) 165, 1849, reversing S. C, 2 Barb. 190; Cuyler v. Rochester, 
 12 Wend. 165, 1834; Hodges®. Buffalo, 2 Denio, 110, 1846; Halstead «. 
 Mayor, 3 Comst. 430, 1850 ; Martin b. Mayor, 1 Hill, 545 ; Boone v. Utica, 2 
 Barb. 104 ; Cornell «. Guilford, 1 Denio, 510 ; Boyland v. Mayor, &c. of 
 New York, 1 Sandf. (N. Y.) 37, 1847; DiU «. Wareham, 7 Mete. 438, 1844; 
 Vincent v. Nantucket. 13 Cush. 103, 105, 1858, per Merrick, J. ; Stetson ». 
 Eempton, 13 Mass. 372 ; Parsons v. Inhabitants of Goshen, 11 Pick. 396 ; 
 Wood V. Lynn, 1 Allen (Mass.) 108, 1861; Spalding.®. Lowell, 33 Pick. 71; 
 Mitchell V. Rockland, 45 Maine, 496, 1858; S. C, 41 lb. 368; Anthony v. 
 -Cleveland, 13 Ohio, 375, 1861; Commissioners s. Cox, 6 Ind. 403, 1855; In- 
 habitants V. Weir, 9 i6. 224, 1857 ; Smead v. Railroad Company, 11 Jb. 104, 
 1858; Brady ®. Mayor, 30 N. Y. (6 Smith) 313; Appleby v. The Slayor, &c., 
 15 How. Pr. 428 ; Estep o. Eeokuk County, 18 Iowa, 199, and cases cited 
 by Gole, J.; Clark®. Polk County, 19 Iowa, 248, 1865. Supra, sec. 373; 
 poH, sec. 749 ; Perry ». Superior City, 33 Wis. 64, 1870. 
 
 Corporation may defend against unauthorized contract, although its 
 
Ch. XlV.l CONTRACTS. 473 
 
 negotiable securities, the corporation may be estopped to 
 avail itself of irregularities in the exercise of power con- 
 ferred ; but it may always show that under no circumstances 
 could the corporation lawfully make a contract of the 
 character in cLuestion. This subject has, however, been 
 already referred to, and will be considered in a subsequent 
 portion of the present chapter.' 
 
 § 383. Agreeably to the foregoing principles, a corpo- 
 ration cannot maintain an action on a bond or a contract 
 which is invalid, as where a city, without authority, loaned 
 its bonds to a private company, and took from it a penal 
 bond, conditioned for the faithful application of th^city 
 bonds to works which the city had no power to construct or 
 assist in constructing.' So a contract by a city to waive its 
 
 seal is attached to it. Leavenworth v. Bankin, 3 Kansas, 358, 1864 ; •ante, 
 sec. 132. 
 
 Mr. Justice Coulter, in delivering the opinion in Allegheny City v. Mc- 
 Clurkan, 14 'Pa. St. 81, expresses the opinion that a municipal corporation 
 may be liable for the contracts ultra mres of its officers, when these are 
 publicly entered into with the knowledge of the people, and not objected 
 to until after the rights of third persons have attached. Such a principle 
 is believed to be both unsafe and unsound ; the only true and safe view 
 being that all persons are bound to take notice of the powers and authority 
 which the law confers upon the officers of such corporations. See Loker «. 
 Brookline, 13 Pick. 343. Auditing and paying ^art of a claim presented, 
 accompanied with a denial of liability for the residue, does not estop the 
 debtor corporation from contesting the residue, even though it be upon 
 grounds which show the former allowance to have been improper. People 
 «. Supervisors, 1 Hill (N. T.) 363, 1841. In an action on a contract for 
 doing work which a municipal corporation had the power to make, it is no 
 defence that the city ought to have adopted some less expensive means of 
 accomplishing the purpose in view. Livingston «. Pippin, 31 Ala. 543, 1858. 
 
 The case of The State v. Buffalo, 3 Hill (N. T.) 434, determines an in- 
 teresting point. Arms belonging to the state were loaned to the city 
 authorities to suppress disorderly assemblages. The keeper of the arsenal 
 had no right to make the loan, but it was made in good faith, and the bond 
 of the city taken for their return on demand. The city being sued on this 
 bond, made the point that it was void for illegality, but the court regarded 
 it rather as a lonaflde excess of authority simply, and held that though the 
 loan was unauthorized the state might waive the tort committed on the 
 property and seek a remedy upon the bondl 
 
 ' Ante, sec. 108 ; infra, sees. 415-436. ^ 
 
 " City Council a. Plank Road Company, 81 Ala. 76, 1857. See Mayor, 
 
474 MUNICIPAL CORPORATIONS. [Ch. XIV. 
 
 right to go on with the laying out of a street or not, as it 
 might choose, is, it seems, against public policy, and it is 
 void if it amounts to a surrender of its legislative discretion. - 
 So a promise to pay a public corporation, or their agents, 
 a premium for doing their duty, is illegal and mid / and a 
 contract will not be sustained which tends to restrain or con- 
 trol the unbiased judgment of public officers. But a 
 promise by individuals to pay a portion of the expenses of 
 public improvements does not napessarily fall within this 
 principle, and such a promise *is not void as being against 
 public policy ; and if the promisors have a peculiar and 
 local interest in the improvement, their promise is not void 
 for want of consideration, and may be enforced against 
 them." So, on the other hand, a party making with a city 
 a contract which is ultra mres, is not estopped, when sued 
 thereon by the corporation for damages, to set up its want 
 of authority to inake it.' 
 
 &c. V. Winter, 39 lb. 651; Halstead ». Mayor, &c., 3 Comst. 430; S. C, 5 
 Barb. 318 ; Bridgeport ». Housatonic Railroad Company, 15 Conn. 475, 493. 
 
 ' Martin «. Mayor, &c., 1 Hill (N. Y.) 545, 1841 ; ante, sec. 61. As to 
 public policy, see Ohio, &c. Company ». Merchants, &c. Company, 11 Humph. 
 (Tenn.) 1 ; ante, chap. XH. 
 
 Corrupt agreements with aldermen, to influence them to a particular course 
 in the discharge of oificial duties, are, of course, void, no matter to whom 
 executed. Cook ». Shipman, 24 HI. 614. 
 
 Contracts with municipal officers. Ante, sees. 221, n, 330, 371, n. 
 
 ^ Townsend s. Hoyle, 20 Conn. 1, 1849. This case holds that a promise 
 by the defendants to pay the city the expense of laying a certain street was 
 binding; and Ellsworth, J., in delivering the opinion, said: "We cannot 
 assent to the proposition that a promise by individuals to pay a part of the 
 expenses of public improvements, ordered by public authority, is, of course, 
 illegal and void. The amount or cost may properly enough enter into the 
 question of expediency or necessity. If made in one way or in one place, 
 it will be much better for the public, though more expensive; but individ- 
 uals specially benefited stand ready, by giving their land, their money, or 
 their labor, to meet the extra expense. Will these promises be void, as 
 being without consideration, or against public policy ? We think not." 
 See chapter on Streets, post ; Springfield «. Harris, 107 Mass. 583. 
 
 ' City Council ®. Plank Road Company, 31 Ala. 76, 1857 ; Steam Naviga- 
 tion Company v. Dandridge, 8 Gill & J. 248, 319, 330 ; Hodges «. Buffalo, 3 
 Denio, 110. If a corporation has received money in advance, on a contract 
 void on account of want of authority to make it, and afterwards refuses to 
 fulfill the contract, the party advancing the money may, without demand, 
 
Ch. XIV.] CONTRACTS. 475 
 
 § 383. Implied Contracts. — The present state of the 
 authoTities clearly justifies the opinion of Chancellor Kent, 
 that corporations may be bound, by implied contracts 
 within the scope of their powers, to be deduced by inference 
 from aijthorized corporate acts, without either a vote, or 
 deed, or writing.' This doctrine is applicable equally to 
 public and private corporations, but in applying it, how- 
 ever, care must be taken not to violate other principles of 
 law." Thus it is obvious that an implied promise cannot be 
 
 recover it back in an action for money had and received. Dill «. Wareham. 
 1 Met. 438, 1844. In this case the corporate defendant undertook, without 
 authority, to transfer to the plaintiff the right of taking oysters within its 
 limits; contract held wholly void. See, also, McCracken v. San Francisco, 
 16 Oal. 591. Infra, sees. 383, 384. Compare Herzo «. San Francisco, 33 Cal. 
 134. That the contract of agents within the scope of corporate power may 
 be ratified, or a contract implied from the enjoyment of the benefit of the 
 consideration. San Francisco Gas Company o. San Francisco, 9 Cal. 458, 
 1858, opinion of Field, 3. ; Backmana. Charlestown, 42 N. H. 135. SeeBis- 
 sell V. Eailroad Company, 33 N. Y. 258. Post, sec. 750. 
 
 ' 3 Kent Com. 391 ; Bank of Columbia v. Patterson, 7 Cranch, 399 (1813 
 — a leading American case); Mott v. Hicks, 1 Cow. 513; Dunn ®. Rector, 
 &c., 14 Johns. 118; Bank ». Dandridge, 13 Wheat. 74; Perkins v. Insurance 
 Company, 4 Cow. 645 ; Davenport v. Peoria Insurance Company, 17 Iowa, 376, 
 and cases cited by Oole, J. ; American Insurance Company v. Oakley, 9 
 Paige, 496 ; Magill i>. Kaufiman, 4 Serg. & Raw. 317 ; Randall «. Van Vech- 
 ten, 19 Johns. 60; Wayne County ®. Detroit, 17 Mich. 390; Lesley «. White, 
 1 Spears (S. Car.) Law, 81 ; Canaan ». ^terush, 47 N. H. 311 ; Lebanon a. 
 Heath, II. 853; Adams ». Farnsworth, 15 Gray, 423; Shrewsbury «. Brown, 
 25 Vt. 197; Gassett o. Andover, 11. 342; Peterson v. Mayor, &c. of New 
 York, 17 N. Y. 449, 458, 1858 ; Danforth ». Schoharie Turnpike Company, 
 12 Johns. 337 ; Angell & Ames, sec. 237 ; Maher v. Chicago, 38 111. 266 ; 
 Frankfort Bridge Company ». Frankfort, 18 Ben. Mon. 41. Supra, sec. 
 374. Broom Com. on Com. Law, 561-570, where the English cases are 
 collected. 
 
 ' Petersen v. Mayor, &c. of New York, 17 N. Y. 449, 453 ; Poultney «. 
 Wells, 1 Aiken (Vt.) 180 ; Where a city contracted with a railroad company 
 to do certain work, and the company employed persons to do it, there is no 
 implied contract on the part of the city to pay them, although the city saw 
 them at work. Alton v. Mulledy, 31 111. 76, 1859. 
 
 Must le an authorized request. " No person can make himself a creditor of 
 another by voluntarily discharging.a duty which belongs to that other." 
 Btrmg, J., in Salsbury v. Philadelphia, 44 Pa. St. 303 ; Baltimore «. Poult- 
 ney, 25 Md. 18; Jeflfersonville v. Ferry Boat, 35 Ind. 19, 1870. In Seibrecht 
 ■B. New Orleans, 12 La. An. 496, 1857, carpets were furnished for certain 
 corporation courts, by order of the clerks or judges, but without any author- 
 
476 MUNICIPAL CORPORATIONS. [Ch. XIV. 
 
 raised against a corporation, where by its charter it can only 
 contract in a prescribed way, except it be a promise for 
 meney received, or psoperty appropriated under the con- 
 tract." So where the corporation orders local street im- 
 provements to be made, for which the abutters are the 
 parties ultimately liable, and which, by the charter, must 
 be made in a prescribed mode ; if made without any con- 
 tract, or a valid one, the doctrine of implied liability does 
 not apply in favor of the contracltor, unless, indeed, the 
 corporation has collected the' amount from the adjoining 
 owners and has it in its treasury." 
 
 § 384. " The doctrine of implied municipal liability,'''' 
 says Mr. Chief Justice Field, in a case where the subject 
 underwent very thorough examination, "applies to cases 
 where money or other property of a party is received under 
 such circumstances that the general law, independent of ex- 
 press contract, imposes the obligation upon the city to do 
 justice with respect to the same. If the city obtain money 
 of another by mistake, or without authority of law, it is her 
 
 ity of the common council, and were worn out before the plaintifE pre- 
 sented his bill. It was contended that the city was liable ex equo et bono, 
 having used, and not returned the carpets ; but it did not appear that the 
 council knew that they had been purchased for the city, and were being 
 Used in its buildings. The court denied the liability, saying that "The 
 only safe rule is to hold that the "city cannot be bound for any contract 
 made without its authorization, expressed by a resolution of the common 
 council." That an unauthorized contract, however advantageous, does not 
 bind the corporation, see Loker v. Brookline, 13 Pick. 343; Jones «. Lan- 
 caster, 4 Pick. 149; Wood «. Waterville, 5 Mass. 294. 
 
 A contract was implied on the part of a city, which was bound to sup- 
 port its paupers and which had refused to pay a person who had furnished 
 a pauper with necessaries. Seagraves «. Alton, 13 111. 371. Here it will be 
 noticed that there was an express refusal on the part of the city to support 
 the pauper, and yet a promise was implied. This implication is a pure fic- 
 tion to support what the court regarded as a just claim. 
 
 ■ McSpedon v. Mayor of New York, 7 Bosw. 601 ; McCracken v. San 
 Francisco, 16 Cal. 591 ; Piemental a. San Francisco, 31 Cal. 351. 
 
 « Argenti v. Ban Francisco, 16 Cal. 255— opinion of Meld, C. J. A 
 municipal corporation was holden liable, under its charter, upon an implied 
 assumpsit to collect and pay over assessments awarded to property owners, 
 for the opening of a street. Wheelers. Chicago, 24 HI. 105, 1860; see infra, 
 sees. 388, 400, 403. 
 
Ch. XrV.] CONTRACTS. 477 
 
 duty to refund it — not from any contract entered into by 
 her on the subject, but from the general obligation to do 
 justice, .which binds all persons, whether natural or artificial. 
 If the city obtaip other property whib^ does not belong to 
 her, it is her^uty to restore it ; or if used by her, to render 
 an equivalent to the trde owner, from the like general 
 obligftion : the law,*which always intends justice, implies 
 a promise. In reference to money or other property, it is 
 not difficult to determine in ^ny particular case, whether a 
 liability with respect to the same has attached to the city. 
 The money must have gone into her treasury, or been ap 
 propriated by her, and when it is property other than 
 money, it must have been used by her, or be under her con- 
 trol. But with reference to services rendered, the case is 
 diJQFerent. Their acceptance must be evidenced by ordtijanc6 
 [or express corporate action] to that effect. If not originally 
 authorized, no liability can attach upon any ground of im- 
 plied contract. The acceptance upon which alone the obli- 
 gation to pay could arise, would be wanting. As a general 
 rule, undoubtedly, a city corporation is only liable upon 
 express contracts, authorized by ordinance [or other due 
 corporate proceedings]. The exceptions relate to liabi lities 
 from the use of money or other property which does not 
 belong to her, or to liabilities springing from the neglect of 
 duties imposed by the charter, from which injuries to 
 parties are produced. There are limitations even to these 
 exceptions, in many instances, as where property or money 
 is received in disregard of positive prohibitions ; as, for 
 example, the city would not be liable for moneys received 
 upon the issuance of bills of credit, as this would be, in 
 effect, to support a proceeding in direct contravention of the 
 inhibition of the charter."' Wor for money received for 
 
 ' Per Field, C. J., in Argenti v. San Fransoisco, 16 Cal. 355, 383, 1860. 
 
 ''The law," says an eminent Judge, "never implies a promise to pay 
 unless some duty creates such an obligation, and more especially it never 
 implies a promise to do an act contrary to duty or contrary to law. As- 
 sumpsit may be maintained against a municipal corporation in certain cases 
 upon an implied promise, but the better opinion is that a promise to pay 
 can never be implied in a case where the corporation possesses no power to 
 contract." Per Clifford, J., in Burrill «. Boston, 3 Clifford 0. C. 590, 596, 
 1867. The subject is further expounded by the same learned justice in his 
 
478 MDOTCIPAL COEPOEATIONS. [Ch. XH 
 
 notes issued by it to circulate as money, in violation of an 
 express statute and the public policy of the state.' 
 
 § 385. BatificaUon of Unauthorized Qontract.—K 
 
 opinion in The Collector «. Hubbard, 13 Wall. 1, 13, 1870. See, also 
 Curtis D. Fiedler, 3 Black, 478. 
 
 ' Thomas t>. Richmond, 13 Wall. 349, 1870. The principles upon which 
 the decision rests are admirably stated in the opinion of Mr. Justice 
 Bradley. ♦ 
 
 Illustrations of implied liaMlity. — City is liable for gas furnished to it 
 with knowledge of the council, though no ordinance or resolution was 
 passed authorizing it to be furnished. Gas Company c. San Francisco, 9 
 Cal. 453, 46%, 1858 — opinion of Field, J. If a city sells its void bonds, there 
 is an implied assumpsit to repay the purchase-money. Paul v. Kenosha, 32 
 Wis. 366, 1867. Where a bridge corporation was requested by the city 
 authorities to communicate to them the terms upon which the city might 
 attach its water pipes to the bridge, to carry the water from one side of the 
 river to the other, which the bridge company answered, fixing a sum, upon 
 which the city coimcil took no action, but proceeded to extend the water 
 works and used the bridge, the court held the city was liable. Bridge 
 Company v. Frankfort, 18 Ben. Mon. 41, 1857. Broom Com. on Com. Law, 
 567, where the English cases are cited in which corporations have been 
 held liaMe ty reason of enjoying the benefits resulting from particular con- 
 tracts. Post, sees. 750, 751. 
 
 Mr. Harrison, in his excellent "Municipal Manual for Upper Canada," 
 has digested the decisions in the province on the subject of the power of 
 corporations to contract. He says (3nd ed. p. 19), " It is a principle applicable 
 to all corporations that they must contract under seal. To this principle 
 there are some exceptions. One of some moment has been created with 
 regard to municipal corporations. It is that such a corporation is Uable to 
 be sued in an action of debt on simple contract for the price of goods 
 furnished, or labor done at their request and accepted by them. Fetterly 
 v. The Municipality of Russell and Cambridge, 14 U. C. Q. B. 433. Though 
 in such a case there be no contract under seal, the law,implie8 an imder- 
 taking by a corporation to pay for labor and materials employed in their 
 service, and of which they have accepted and are enjoying the benefit, pro- 
 vided the purpose for which the labor and materials have been applied is 
 one clearly within the legitimate object of their character. Bartlett v. The 
 Municipality of Amherstburgh, 14 U. C. Q. B. 153 ; Fetterly v. The Munici- 
 pality of Russell and Cambridge, 14 U. C. Q. B. 483 ; Pirn ». The Municipal 
 Council of Ontario, 9 U. C. C. P. 304 ; Perry i>. The Corporation of Ontario, 
 23 U. C. Q. B. 891 ; Nicholson v. The Guardians of the Bradford Union, 1 
 L. R. Q. B. 630. The exception, however, does not extend to executory 
 contracts, such as work, &c., to he done, but is confined to work in fact 
 done and accepted. McLean ». The Town Oouucil of the Town of Brant- 
 ford, 16 U. C. Q. B. 347; Wingate v. The Enniskillen Oil Refining Com- 
 pany, 14 U. C. C.P. 379." . 
 
Ch. XrV.] CONTRACTS. 479 
 
 mtinicipal corporation may ratify the unauthorized acts 
 and contracts of its agents or ofiBcers, which are within the 
 corporate powers, but not otherwise. Katification may be 
 inferred from acquiescence after knowledge of all the 
 material facts, or from acts inconsistent with any other sup- 
 position. The same principle is applicable to corporations 
 as to .individuals.' The employment, however, by a muni- 
 cipal council, of an attorney to defend a policeman charged 
 with an assault, does not adopt his act so as to render the 
 city liable for the damages recovered against him.'' 
 
 § 386. Where work done for a corporation, without 
 complete legal authorization, is beneficial to it, and the 
 price reasonable, strong evidence of the assent of the cor- 
 poration is not required ; hut such assent must be shown. 
 Ratification of the acts of a committee in building upon the 
 
 ' People 71. Swift, 31 Cal. 36, 1866 ; Bleu v. Bear River Company, 30 
 Cal. 603, 1863; Peterson v. Mayor, 17 N. Y. 449, 453, 1858, and authorities 
 cited, reversing S. C, 4 E. D. Smith, 413 ; San Francisco Gas Company v. 
 San Francisco, 9 Cal. 453; Hoyfc v. Thompson, 19 N. T. 307, 318, 1859; 
 Howe V. Keeler, 37 Conn. 588; Emerson «. Newberry, 13 Pick. 377; Hodges 
 B. Buffalo, 3 Denio, 110, 1846; 5 II. 567; People v. Flagg, 17 N. Y. 584; 
 S. C, 16 How. Pr. R. 86; Brady v. Mayor, &c. of New York, 30 N. Y. 313, 
 affirming S. C, 3 Bosw. 178; Delafleld v. State of Illinois, 3 Hill (N. Y.) 
 159, 176, 1841; S. C, 8 Paige, 581, and 36 Wend. 193; Mills «. Gleason, 8 
 Am. Law Reg. 693 ; S. C. , 11 Wis. 470, 1860 ; Dubuque, &c. College v. 
 Township, &e., 13 Iowa, 55; Merrick ». Plank Road Company, 11 Iowa, 
 74, per Wright, 3. ; Betroit v. Jackson, 1 Doug. (Mich.) 106 ; Crawshaw ». 
 Roxbury, 7 Gray, 374; Burrill v. Boston, 3 Clifford 0. 0. 590, 1867. 
 
 A municipal corporation may ratify unauthorized expenditures, not ultra 
 vires, which they deem beneficial to it, and such ratification, as in the case 
 of natural persons, is equivalent to previous authority. Backman v. Charles- 
 town, 43 N. H. 135 ; Harris «. School District, 8 Post. (N. H.) 65 ; Wilson 
 s. School District, 33 N. H. 118; Keyser ®. School District, 35 N. H. 477 ; 
 Episcopal Society ii. Episcopal Church, 1 Pick. 873 ; Bank v. Patterson, 7 
 Cranch, 399; Randall b. Van Vechten, 19 Johns. 60; Trott s. Warren, 3 
 Fairf. (Maine) 337; Topsham ». Rogers, 43 Vt. 189; People v. Swift, 81 
 Cal. 36. In DeGrave ®. Monmouth, 19 Eng. C. L. 300, it was held that the 
 examination of weights and measures, which had been ordered by a mayor 
 de facto, and which were the subject of the controverted contract, at a 
 meeting of the corporation, and the subsequent use of some of them, re- 
 cognized the contract for their purchase and made the corporation liable 
 to pay for them. Infra, sees. 387, 651 ; Broom Com. on Com. Law, 567. 
 
 ' Buttrick V. Lowell, 1 Allen (Mass.) 173, 1861. Post, sees. 399, 773. 
 
480 MTJNICIPAL COKPORATIONS. [Cn. XTV. 
 
 land of the district a more expensive house than they were 
 authorized tp do by the vote of the corporation, cannot be 
 inferred from the mere fact that the school is kept in it for 
 a few weeks, there being no evidence that the corporation 
 had knowledge of the over expenditure, or had taken any 
 action on the subject.' 
 
 ■ Wilson' ». .School District, 32 N. H. 118, 1855. See, further, as to effect 
 of use as a ratification : Kingman v. Schodi District, 3 Cush. 435 ; Davis v. 
 School District, 34 Maine, 349; Lanes. School District, 10 Met. 463; Chap- 
 lin ■«. Hill, 34 Vt. (1 Dean) 638; Fishers. School District, 4 Cush. 394; 
 Taft ». Montague, 14 Mass. 385 ; Keyser «. School District, 35 N. H. 477 ; 
 Pratt V. Swauton, 15 Vt. 147 (use of bridge by public). 
 
 In Wilson v. School District, above cited, Mr. Justice Bell well remarks: 
 " In most cases where work and labor is performed upon real estate by con- 
 tract, the mere fact that the ovmer makes use of the building or structure 
 built upon his land, furnishes no evidence of approval or acceptance, be- 
 cause he has no choice to reject it. Alone, the use of such buildings gives 
 no evidence of acceptance. Accompanied by silence, and absence of com- 
 plaint, where to complain would be natural and suitable, or by any circum- 
 stance indicating acquiescence, it would be suflBcient." 33 N. H. 135. As 
 to effect of acceptance of public worh by the agents of the town, see Wad- 
 leigh v. Sutton, 6 N. H. 15, 1833. Of school house built upon a qumitum, 
 meruit employment by a committee, but without a legal contract. Kimball 
 0. School District, 38 Vt. 8, 1855. See, also, Oorwin «. Wallace, 17 Iowa, 
 334 ; Zottman ». San Francisco, 30 Cal. 96 (valuable discussion) ; Jordan ». 
 School District, 38 Maine, 164, 1854; Keichard ». Warren Co., 31 Iowa, 
 381, 1871. Surveyor of highways cannot recover of the town for work volun- 
 tarily performed, there being no contract, not even if beneficial. Sikes v. 
 Hatfield, 13 Gray, 347, 1859. Infra, sees. 388, 400. 
 
 A public corporation is not liable for work done against, or even with- 
 out, its direction or authority (such as building a bridge, road, school house, 
 &c.), although these are afterwards used by the public or the district. Loker 
 B. Brookline, 13 Pick. 343, 1832; Knowlton v. Inhabitants, &c., 14 Maine 
 (3 Shep.) 35, where note critique on, and remarks of C. J. Mellen, as to 
 Haydens. Madison, 7 Greenl. 79; Morrell v. Dixfleld, 30 Maine (17 Shep.) 
 157, 160 ; Davis v. School District, 24 Maine (11 Shep.) 849 ; Hayward ■». 
 School District, 3 Cush. 419, 1848; li. 436; Moor «. Comville, 13 Maine, 
 293, 1836, wher^ the action was brought by the surveyor or supervisor of 
 highways, who built a bridge without pursuing the course pointed out by 
 law. Aliens. Cooper, 32 Maine, 133 (deciding that the power of a committee 
 with authority to contract to make a road does not embrace power to ac- 
 cept the work or waive performance). But if the work be done under be- 
 lief of authority, as where it was performed under a contract with a com- 
 mittee who assumed to have authority, but who, in fact, had none, then if 
 the corporation accept it, or even tnowingly avail itself of it, it will 
 be liable to pay a reasonable compensation, and a promise thus to pay may 
 
Ch. XIV.] CONTRACTS. 
 
 387. The ratification, whatever its form, must be by the 
 principal or authorized agents. This is well illtistrated 
 by a case where, by statute, certain agents or officers of a 
 State were authorized to borrow money for public use, and 
 for that purpose to sell its bonds at not less than their par 
 value. They exceeded their power by selling for less than 
 par, and on credit. It was contended that this contract was 
 ratified, because the governor, after he knew of the con- 
 tract, signed the bonds and caused them to be delivered, and 
 because the auditor and some of the other state officers 
 acted under the contracts, drawing money and receiving 
 payments. But it was held that these oflScials were likewise 
 agents of limited authority — that, as they would have had 
 no power to make the contracts originally, they could not 
 ratify them ; that ratification must come from the- principal 
 — ^the State — ^represented by its legislature.' 
 
 be implied on the part of a corporation from the acts of its general agent, 
 or an agent with powers of a general character [?]. Abbot «. Herman, 7 
 Greenl. 118; Hayden «. Madison, II. 79. "Perhaps these two cases carry 
 the doctrine of the implied responsibility of corporations as far as it ought 
 to be carried." Per Bmery, J., in Ruby «. Abysm. Society, 15 Maine, 306, 
 308, 1839. As to extent of powers of New England towns, see ante, sees. 
 13, 13. And see, particularly, Jordan «. School" District, and other cases 
 cited, supra; Baltimore a. Reynolds, 20 Md. 1, 1862; Hague ». Philadelphia,, 
 48 Pa. St. 527. 
 
 • Delafleld v. State of Elinois, 2 Hill (N. T.) 159, 175, where difference 
 between ratification by a state and by other corporations and individuals is 
 clearly set forth by Bronson, J. ; affirming S. C, 8 Paige, 531 ; S. C; further, 
 26 Wend. 192. In further illustration of the text, see Hague B.Philadelphia, 
 48 Pa. St. 527 ; Hotchin v. Kent, 8 Mich. 526 ; Marsh «. Pulton County, 10 
 Wall. 676, 1870 ; Dubuque, &c. College ■». Dubuque, 13 Iowa, 535 ; Estey e. 
 Inhabitants of Westmii?ster, 97 Mass. 324 ; Branham v. San Jose, 24 OaL 
 585. Attorney General v. Lathrop, 34 Mich. 235, 1872. 
 
 In applying the doctrine that unautliorized corporate ceots may ie rattled, 
 other principles of law must be borne in mind. The care which, in this, 
 respect, should be observed, is very clearly set forth by Denio, J., in giving 
 judgment in Peterson «. Mayor, &c. of New York, 17 N. Y. 449, 454, 1858. 
 "For instance, no sort of ratification can make good an act without the 
 scope of the corporate authority. So where the charter or a statute binding 
 upon the corporation has committed a class of acts to particular officers oi 
 agents, other than the governing body, or where it has prescribed certain 
 formalities as conditions to the performance of any descriptioa of corporate 
 'business, the proper functionaries must act, and the diesignated forms mus* 
 be observed, and generally no act of recognition, can; supply a defect in 
 31 
 
4^ MDOTCIPAL CORPORATIONS. [On. XIV, 
 
 § 388. Letting to the Lowest Bidder. — Where the 
 charter or incorporating act requires the officers of the city 
 to award contracts to the lowest bidder, a contract made in 
 violation of its requirements is illegal ; and in an action 
 brought on such contract for the work, the city may plead 
 its illegality in defence.' 
 
 these respects." Brady®. Mayor, &c., 20 N. T. 313; Hodges s. Buffalo, 2 
 Denio (N. T.) 110; 17 N. T. 584; Gates*. Hancock, 45 N. H. 528; Reilly 
 s. Philadelphia, 60 Pa. St. 467. Bupra, sees. 385, 386. 
 
 Where the corporation can only act by ordinance, the ratification must be 
 by ordinance. McCracken v. San Francisco, 16 Gal. 591, 1860 ; Piemental a. 
 San Francisco, 31 Gal. 351; Gross v. Morristown, 18 N. J. Eq. 805, 1867. 
 Ante, chap. xil . 
 
 Legialaiure may, within constitutional limits, ratify or a/uthorize ratifiaor- 
 tion. Campbell v. Eenosha, 5 Wall. 194 ; Supervisors v. Schenck, lb. 772 ; 
 Keithsburg ». Frick, 34 HI. 405 ; Mills v. Gleason, 11 Wis. 470 ; Winn v. 
 Macon, 21 Geo. 375 ; Grogan v. San Francisco, 18 Cal. 590, 1861 ; Hasbrouck 
 c. Milwaukee, 21 Wis. 217, 1866; Mills ®. Gharleton, 39 Wis. 400, 1873. 
 Ante, sec. 46; sec. 106, note. In Shawnee County «. Carter, 3 Kansas, 115, 
 1863, the Supreme Court of Kansas held invalid, as not being within the 
 rightful scope of legislative power, an act.of the legislature which declared 
 valid and binding l)onds which had been issued by the county officers on 
 account of the county court house, and which londs were not .enforceable 
 against the county because differing in form and substance from the warrants 
 authorized by the statute. Such a strict limitation on legislative power ia 
 not generally asserted. See, on this point, chap. PV. ante. 
 
 ' Brady v. Mayor, &c. of New York, 30 N. T. (6 Smith) 313, 1859. It is 
 intimated that it is not essential to the defence that the city should show a 
 fraudulent collusion between the bidder and the officers awarding the con- 
 tract. Whether the city is liable on a quantum meruit to one who has bona 
 fide performed labor under a void contract where the work has been accepted 
 and used, was not determined. II. S. G., 3 Bosw. 173 ; 7 Abb. Pr. K. 
 334 ; 16 lb. 433. As further illustrating the text> see People v. Flagg, t7 
 N. Y. 584 ; Peterson ». Mayor, &c., 17 N. Y. 457, referring to but expressing 
 no opinion upon Christopher v. Mayor, &c., 13 Barb. 567; Appleby «. Mayor, 
 (fee, 15 How. Pr. R. 428; Harlem Gas Company d. Mayor, &c. of New York, 
 33N. Y. 309; Maceyi). Titcombe, 19 Ind. 153, 1862; Boneesteel b. Mayor, 
 &c., 33 N. Y. 163; Smith b. Mayor, &c., 31 How. Pr. 1; Nash ». St. Paul, 8 
 Blinn. 173, 1863; 8. 0., 11 Minn. 174; White v. New Orieans, 15 La. An. 
 667. State «. Barlow, 48 Mo. 17, 1871; post, sec. 669, note; Breevort «. 
 Detroit, 34 Mich. 333, 1872; May e. Detroit, 3 Mich. Gir. G. Rep. 335, 
 1871. There can be no recovery against a municipal corporation for extra 
 work, where the officers who requested it to be done had no authority. 
 Hague ». Philadelphia, 48 Pa. St. 527; Bonesteel ®. Mayor, &c. of New 
 Vork, 23 N. Y. 162. 
 
Ch. XIV.] CONTRACTS. 483 
 
 § 389. The Supreme Court of Michigan has affirmed, 
 while the Supreme Court of Wisconsin and of other states 
 have denied, the proposition that where a city charter pro- 
 vides that no contracts shall be made by the city except 
 with the lowest bidder, after advertisement of proposals, it 
 does not prohibit the corporation from contracting to lay 
 NicTi&lson pavement, though the right to lay it is patented 
 and owned by a single firm. The question is close, but 
 there seems, so far, to be a tendency in the courts to adopt 
 the Wisconsin view.' 
 
 § 390. Where the municipal authorities were required 
 by law to advertise for sealed proposals for making local 
 improvements, and award the work to the lowest responsible 
 bidder, to publish a notice of the award, and to allow the 
 owners of the major part of the frontage to take the contract 
 
 Where the charter requires that all wort for the city shall be let to the 
 lowest bidder, after a prescribed notice of the time and place of letting shall 
 have been given, and requires that similar notice shall be given where work 
 is re-let, an assessment upon a lot for work done is void, if the contract was 
 let or re-let without notice. Mitchell v. Milwaukee, 18 Wis. 92, 1864; see, 
 also, Wells v. Burnham, 30 Wis. 112; Hasbrouck «. Milwaukee, 31 Wis. 
 217, 1866. Owner may, in such case, restrain the sale. It. The contract 
 must be the same that was advertised. Nash v. St. Paul, 11 Minn. 174. 
 
 ■ Dean «. Charlton, 33 Wis. 590, 1869; Hobart «. Detroit, 17 Mich. 346, 
 1868. Dean v. Charlton, supra, was approved by Sutherland, J., in Dolan ■». 
 Maypr, &c. of New York, 4 Abb. Pr. (N. S.) 397, 1868, and followed by the 
 Supreme Court of Louisiana in Burgess v. Jefferson, 21 La. An. 143, 1869, 
 in which it appeared that the contractors with the city had the exclusive 
 right to lay the patented pavement in the state. But under provisions of 
 law relating to the City of New York which require all work to be done, 
 and sitpplies to be furnished, to be by contract, where the expenditure will 
 exceed $1,000, and which direct all contracts to be made or let, after adver- 
 tisement, to the lowest bidder, the City Council is not, in the opinion of the 
 Court of Appeals, prohibited from making or paving a street in the manner, 
 or with materials which do not admit of competitive bids. In re Dugro 
 (58th street), 1878, not yet reported. Further, as to rights of lowest bid- 
 ders, see Attorney General v. Detroit, Michigan Supreme Court, 13 Atn. 
 Law Reg. (N. S.) 149. Post. sees. 390, 699, n., 729, 791, n. Sequel to Dean 
 V. Charlton, supra, see Mills v. Charleston, 29 Wis. 400, and Dean v. 
 Borchenius, 30 Wis. 236, the legislature having validated the assessment. 
 Post, sec. 653, and note. See, also, in re Eager, 46 N. Y. 100, 1871. Lia- 
 bility of city to patentee to pay Mm "royalty." Bigelow v. Louisville, 3 
 Fish Pat. Cas. 602, 1869. Post, sec. 764, n. 
 
484 MUNICIPAL CORPORATIONS. [Ch. XFV. 
 
 upon the same terms if they should desire, the court were 
 of opinion that the city authorities had no power to do 
 work which could not be contracted for in this mode, 
 or which the abutters could not themselves perform, and 
 that the award of a contract for a 'patented patement to the 
 assignee of the patentee, and who had the exclusive right 
 to lay the same, was unauthorized, and the contract void. ' 
 
 As the purpose of such a provision in the charter is 
 to secure, through competition, the most advantageous 
 terms, something is necessarily left to the discretion, to be 
 fairly exercised, of course, of the council, in the adoption 
 of the course which will best attain the end ; and it does not 
 contravene this restriction to call for bids putting down vari- 
 ous kinds of wood and stone pavements, some patented and 
 some not, and afterwards, when all the proposals are in, 
 selecting the one which is relatively the lowest or the most 
 satisfactory, all things considered ; but when the kind is 
 thus selected, the lowest responsible bidder, who has the 
 lawful power to perform his undertaking, has the absolute 
 legal right to have the contract awarded to him." 
 
 § 391. In an action on d contract fbr lighting certain 
 streets in New York City with gas, it appeared that the 
 company had, by law, the exclusive right to furnish that 
 part of the city with gas. The charter of the city, however, 
 required all contracts for wants and supplies beyond a cer- 
 tain value, which the contract in suit exceeded, to be let to 
 the lowest Mdder, and the contract not being so let, it was 
 claimed to be void. It was held that since the company 
 h^d the exclusive right to furnish the gas (which prevented 
 competition), the provision of the charter requiring contracts 
 to be let to the lowest bidder (with a view to secure compe- 
 
 ' Nicholson Pavement Company ®. Painter, 35 Cal. 699, 1868. This case 
 was decided before Dean ». Charlton, supra, and the opinion of Sanderson, 
 J., in its general scope, sustains the view of the Wisconsin court; and ap- 
 proving of the language of Field, C. J., in Zottman's Case, 30 Cal. 103, 
 treats "the mode as constituting the measure of the power." Post, chap. 
 XIX. 
 
 « May, Atty.-G-enl. e. Detroit, 13 Am. Law Reg. (N. ;S.) March, 1873, 
 p. 149. Remedy of lowest bidder when contract is awarded to another 
 11. Post, chap. XXII. sec. 730a. 
 
Cn. XIV.] CONTRACTS. 485 
 
 tition) was inapplicable, and the contract was sustained 
 under the general corporate power of the city to contract 
 for the lighting of its streets.' 
 
 § 393. Although notice has been published inviting 
 proposals to do public work, yet the contract is incomplete 
 until the proposal is actually accepted, and the corporation 
 inviting the proposal is not, it seems, liable to damages for 
 refusing to accept an offer, even though it be the lowest 
 regular offer made. It is certainly not thus liable where 
 the notice and the proposals, with respect to the amount 
 and form of the security, do not comply with the require- 
 ments of the ordinances of the city, and where these pro- 
 vided that contracts should not be executed until laid before 
 the common council.' 
 
 §393. Contracts of Suretyship. — A municipal corpora- 
 tion cannot, without legislative authority, become surety 
 for another corporation or individual ; cannot guaranty the 
 bonds or obligations of another, or make accommodation 
 indorsements. Such an authority cannot be impUed or 
 deduced from the general and usual powers conferred upon 
 such corporations. Although such a corporation may have 
 power directly to accomplish a certain object, and itself ex- 
 pend its revenues or money therefor, yet this does not give 
 or include the power to lend its credit to another who may 
 be empowered to effect the same object. Expending money 
 by a city council, as agents or administrators of their con- 
 stituents, is a very different thing from binding their con- 
 
 ^ ' Harlem Gas Company o. Mayor, &c., 33 N. T. 309. 
 
 « Smith ». Mayor, &o. of New York, 10 N. T. (6 Seld.) 504, 1853 ; affirm- 
 ing S. C, 4 Sandf. 8. C. R. 231. " The notice inviting proposals to do the 
 ■work," says WiUard, J., delivering the opinion of the Court of Appe'als (10 
 N. T. 504), " did not, in my judgment, bind the street commissioner of the 
 corporation to accept, at all events, the lowest bid, even though, in all res- 
 pects, formal. Until the bid is accepted by some act on the part of the cor- 
 poration, no obligatory contract was created." See, also, People v. Croton 
 Aqueduct Board, 36 Barb. 240; States. Directors, &c., 5 Ohio St. 334, 1855; 
 Altemus V. Mayor, &c., 6 Duer, 446; Argenti ®. San Francisco, 16 Cal. 355; 
 "Wiggins «. Phila., 3 Brews. (Pa.) 444; Ih 443. 
 
 Further as to lowest Udder, see chapter on Mandamus, post, sees. 699, n., 
 791 n. 
 
4S6 MUNICIPAL . C0KP0RATI0N8. [Ch. XTV. 
 
 stituents by a contract of suretyship — "a contract which 
 carries with it a lesion by its very nature.'" 
 
 § 394. AutJiorizedQontracts. — Rights and Liabilities. 
 — Bilt with respect to authorized contracts a municipal cor- 
 poration has the same rights and. remedies, and is bonnd 
 thereby, and may be sued thereon m the same manner as 
 individuals. Thus, if such a corporation, duly empowered, 
 enters into a partnership relation with private individuals 
 with respect to the profits to be derived from a market 
 house, its rights, especially as regards the copartners and 
 the financial administration of the partnership property, are 
 not different from those of an ordinary partner." 
 
 ' Louisiana State Bank v. Orleans Nayigation Company, 3 La. An. 294, 
 1848. In this case the municipal corporation was sought to be made liable 
 upon its guaranty of bonds issued by the navigation company, -which the 
 mayor, in the name of the municipality, was authorized, by certain resolu- 
 tions of the council, to indorse. It was held that the council transcended 
 its powers, and the guaranty did not impose any legal obligation upon the 
 municipality. The disability of such corporations, without express power, 
 to enter into contracts of suretyship, is shown in the masterly and exhaust- 
 ive opinion delivered by Busies, C. J. 
 
 A municipal corporation has no implied power to lend its credit or make 
 accommodation paper for the benefit of citizens, to enable them to execute 
 private enterprises.^ Clark ». Des Moines, 19 Iowa, 199, 334, 1865; 1 Par- 
 sons N. & B. 166 ; Smead v. Railroad Company, 11 fiid. 105. 
 
 The power to Imrrow money for any public purpose does not authorize the 
 loan of the credit of the city. Chamberlain v. Burlington, 19 Iowa, 395 ; 
 contra, Rogers «. Burlington, 3 "Wall. 654, four judges dissenting. And see 
 Meyer v. Muscatine, 1 Wall. 384. The author cannot but think that power 
 to a corporation to borrow money should not be construed to give the 
 power to loan its credit, but only to borrow money for legitimate and 
 proper municipal objects, as shown by the charter or constituent act of the 
 corporation. See Payne «. Brecon, 3 Hurl: & Nor. 573. Ante, sec. 81 ; Bate 
 man %. Mid- Wales Railway Co., Law Rep. 1 0. P. 510. 
 
 ' New Orleans v. Guillotte, 12 La. An. 818, 1857. In New Orleans v. St. 
 Louis Church, 11 La. An. 244, 1856, it was contended by the counsel for the 
 dty that even if certain resolutions in favor of the defendants allowing 
 them to establish a cemetery within the city amounted to a contract, and 
 though their repeal be not justified by the facts, and a violation of the con- 
 tract by the city, yet that the latter has the power to violate its contracts, 
 and the defendants have no redress except in an action for damages. But 
 this doctrine was rejected by the court, which declared it to be as "un- 
 sound as it is novel," since a liability for damages is "the very opposite of 
 a recognition of a right to violate the contraofc" Per Buchanan, J. 
 
Ch. XrST.] CONTBACTS. 487 
 
 § 395. So where a municipal corporation, acting within 
 the scope of its powers, in order to secure the erection of 
 gas works, passed an ordinance whereby the gas works and 
 their income were placed in the hands of trustees, for the 
 benefit of those who loaned money to execute the under- 
 taking, such ordinance is a contract, and cannot be vio- 
 lated by the city, although it may deem it for the interest of 
 its citizens to do so ; nor is it in the power of the legislature 
 to authorize its violation.' 
 
 § 396. So where the mayor and council have, by the 
 charter, power to make, in their corporate capacity, all 
 such contracts as they may deem necessary for the welfare 
 of the corporation, they may contract to sell stock owned by 
 the city in a private corporation, to enable the city to pay 
 its debts ; and the discretionary power with which the 
 mayor and council are invested cannot, when hona fide 
 exercised, be controlled by a court of equity, at the in- 
 stance of property owners and tax-payers." 
 
 § 397. Power to a city corporation to pave streets at the 
 expense of the owners and recover the amount from them if 
 they fail themselves to pave when required by ordinance, 
 gives the corporation the power to 'purchase paving ma- 
 terials and incur a debt for that purpose ; and in a suit by 
 the vendor of such materials against the corporation, it is 
 no defence that the council had not passed an ordinance be- 
 fore they purchased the materials, requiring the owners to 
 pave : this is a matter to which a creditor is not bound to 
 look. The question would be different if the city had 
 sought to make the lot owner liable for the cost of paving ; 
 in such case, it must show a strict compliance with the re- 
 quirements of its charter.' 
 
 § 398. Settlement of Disputed Claims, <&c.— Growing 
 out of its authority to create debts and to incur liabilities, a 
 
 * Western Savings Fund Society «. Philadelphia, 31 Pa. St. 175, 1854 ; 
 Same v. Same, IT). 185, 1858; Ante, chap. IV. sec. 41. 
 
 ° S6mmes ». Columbus, 19 6a. 471, 1856. Ante, sec. 58; pout, chapter 
 on Corporate Property, sec. 445. Post, chap. XX. 
 
 » Bigelow ». Perth Ambgy, 1 Dutch. (N. J.) 297, 1855. Post, chap. XIX 
 
488 MUNICIPAL CORPORATIONS. [Ch. XIV. 
 
 municipal corporation has power to settle disputed claims 
 against it, and an agreeraent to pay these is not void foT 
 want of consideration.' If it has obtained a contract which, 
 by mistake or a change of circumstances, it deems to 
 operate oppressively upon the other party, an agreement to 
 make an additional compensation, or to modify or annul 
 it, is not invalid for want of consideration." A town may 
 make a contract with a creditor whereby the latter agrees 
 to discount or throw oflF a poison of his. debt, and such 
 an agreement, if founded on a sufficient consideration, will 
 be enforced." 
 
 § 399. Contracts with Attorneys. — Kesulting also from 
 
 ' Augusta V. Leadbetter, 16 Maine, 45, 1839; Bean v. Jay, 33 Maine, 117, 
 121, 1848 ; People ®. Supervisors, 37 Gal. 655 ; People «. Coon, 35 Cal. 648. 
 It may annex conditions to a proposal of settlement, and is not liable unless 
 the conditions are met: Merrill «. Dixfleld, 30 Maine, 157, 1849. A munici- 
 pality may, without special grant, issue new bonds in the place of old bonda 
 which had been issued according to law. Rogan «. Watertown, 30 Wis. 
 359, 1879, infra, sec. 413, n. 
 
 * Bean «. Jay, 33 Maine, 117, 131; Meech v. Buffalo, 39 N. T. 198, 1864. 
 Further, as to consideration : BaileyviUe v. Lowell, 30 Maine, 178, 1841 • 
 Nelson «. Milford, 7 Pick. 18, 1838 — valuable opinion of Pa/rker, C. J. See 
 People V. Stout, 33 Barb. 349. Ante, chap. IV. sec. 44. The power to suo 
 and be sued gives to a corporation the right to settle or compromise claims. 
 Where a city has a judgment, from which an appeal is about to be taken, 
 the council may, if done in good faith, cancel the judgment on the payment 
 of costs, and such an agreement, when executed, is binding upon the cor- 
 poration. Petersburg «. Mappin, 14 111. 193, 1852; Supervisors®. Bowen, 
 4 Lansing, 34, 1871. 
 
 Power to submit to arbitration. Dix v. Bumimerston, 19 Vt. 363 ; Gris- 
 wold V. Stonington, 5 Conn. 867; Canal Company ®. Swann, 5 How. (U. S.) 
 83. Power exists unless the corporation be disabled. In re Corporation, &c., 
 6 Upper Can. Law J. 307 ; In re Corporation, &o., 19 Upper Can. Q. B. 450. 
 
 'BaileyviUe v. Lowell, 20 Maine, 178, 1841. In this case, the town 
 against which the creditor had an execution had the option, and was 
 authorized to raise the money by loan or by assessment; and if in the latter 
 mode, either at once or by instalments. If not raised and paid, the creditor 
 was authorized to cause the property of the inhabitants to be distrained 
 upon his writ. It was held, under these circumstances, that an agreement 
 by the creditor, which was accepted and complied with by the town, that 
 if the town would at once assess the amount required, and collect the same, 
 he would abate a portion of his debt, was founded upon a sufficient con- 
 sideration, and was binding upon him. 
 
Ch. XrV.] CONTRACTS. 489 
 
 the power to make contracts, to own property, and to incur 
 liabilities, is the authority in a municipal corporation, in the 
 absence of express or implied restriction, to employ an 
 attorney ^^ to conduct or defend suits in which the corpora- 
 tion is interested in its corporate capacity, and the corpora- 
 tion is bound to pay for services rendered by him, on due 
 employment, without an express vote to that eflFect.' If a 
 corporation attorney, after his terra of office has expired, 
 continues in the management of suits in which the corpora- 
 tion is interested, without objection from, and with the 
 knowledge of, the corporation, and of his successor, he 
 may, it has been held, recover for such services." 
 
 ' Smith V. Sacramento, 13 Cal. 531. May employ, unless specially re- 
 stricted, an attorney in addition to the city attorney. 11. See Hornblower 
 V. Dunden, 35 Cal. 644. Compare Clough «. Hart, decided by the Supreme 
 Court of Kansas, reported in 11 Am. Law Reg. (N. S.) 95. This case holds 
 that there is prima fade, if not absolutely, an implied restriction upon city 
 and county corporations to employ other attorneys to perform the precise 
 duties, as prescribed by law, of the city and county attorneys elected by the 
 people or provided for by incorporating statutes. A municipal corporation 
 which has employed an attorney to file a bill seeking to destroy, by suit, 
 the existence of the corporation itself, cannot apply the corporate funds in 
 payment for such services. Daniel «. Mayor, &c., 11 Humph. (Tenn.) 582, 1851. 
 
 Unless there is some special restriction the corporation may incur lia- 
 bility to compensate an attorney employed by it to conduct or defend suits 
 which relate to the due performance of the duties or trusts with which, in 
 its corporate capacity, it is charged by law. Attorney-General i>. Mayor, 
 &c. of Norwich, 3 Myl. & Cr. 406 ; Lewis v. Mayor, &c. of Rochester, 9 
 Com. B. (N. S.) 401, 1860. Ante, sec. 98. The Supreme Court of Wiscon- 
 sin hold that no action will lie against a city having " the general powers of 
 municipal corporations at common law " to recover compensation for ser- 
 vices of counsel to aid in eriminal prosecuUona against persons who had 
 lately been officers of the city for offenses committed under color of their 
 official duties, resulting in pecuniary injury to the city. Butler v. Milwau- 
 kee, 15 Wis. 493. Compare ante, sec. 91, and cases there cited, as to power 
 to offer rewards for offenders. Buttrick ®. Lowell, 1 Allen (Mass.) 172. 
 
 ' Langdon «. Castleton, 30 Vt. 385, 1858. 
 
 ' lb. See Harrington v. School District, 30 Vt. 155 ; supra, sec. 383, aa 
 to implied contracts. Compare Clough v. Hart, 11 Am. Law Reg. (N. S.) 
 95. Compensation of city attorney. S§e Carroll «. St. Louis, 12 Mo. 444; 
 Orton V. State, 13 Wis. 509 ; also, chapter on Corporate Officers, ante. Lia- 
 bility for attorney's fee under charter or special statutes, see Brady ». Super- 
 visors, 3 Sandf. S. C. R. 460, iiffirmed 10 N. T. (6 Seld.) 360, 1851, for 
 reasons given by Oakley, C. J., in ,3 Sandf. 460; Halstead v. Mayor, &c. of 
 New York, 3 Oomst. 430; State v. New Orleans, 30 La. .'.n. 173; Bright ». 
 
490 MUNICIPAL C0EP0EATI0N8. [Oh. XIV. 
 
 § 400. Contracts for Local Improvements. — A munici- 
 pal corporation contracted with a paver to do certain work 
 at a fixed price, of which it was to pay one-third and the. 
 owners two-thirds. It was judicially determined that the 
 proprietors were, in law, liable to pay only one-third, and 
 it was held, in an action by the paver against the corpora- 
 tion, that it wa.s a warrantor for the remaining one-third, 
 and it was held liable accordingl v.' But where the charter 
 or constituent act, in reference to improving streets, provides 
 that the city shall be liable to the contractor for so much 
 only of the improvement as is occupied by streets and 
 alleys crossing the same, and that the owners of adjacent 
 lots shall be liable for the rest, the city is not liable for the 
 deficiency, in case the adjacent property does not sell for 
 enough to pay the assessment, and though the owner be a 
 non-resident." 
 
 § 401. A city charter rectuired the consent of a majority 
 
 Hewes, 19 La. An. 666 ; Parker v. "Williamsburg, 13 How. Pr. 350 ; Clough 
 0. Hart, mtpra, and cases cited by Valentine, J. 
 
 ' Tounier u. Municipality, 5 La. An. 398. See, also, Oronan v. Same, Th. 
 537, where, by the construction of the contract, the city was held liable for 
 the whole expense, the proprietors having refused to make payment. A 
 contractor failing, for want of power in a city, to be able to get his pay from 
 special assessments, the city was held liable to him, it being regarded as 
 guaranteeing that it possessed the specific powers relied on by the con- 
 tractor for his compensation. Ma,her v. Chicago, 38 HI. 366, 1865. But see 
 Chicago ». People, 48 111. 416, where the first case is explained and distin- 
 guished. See, also, Reilly v. Philadelphia, 60 Pa. St. 467 ; Sleeper «. Bullen, 
 6 Kansas, 800, 1870; Chicago «. People, 56 111. 327; Lowden v. Cincinnati, 
 3 Disney (O.) 303. Right of contractor to sue the corporation where, in 
 consequence of its neglect, it .would be nugatory to proceed against the 
 owners or the property. See Michel «. Police Jury, 9 La. An.- 67 ; Newcomb 
 V. Same, 4 lb. 333; Michel e. Same, 3 2 b. 133; Leavenworth s. Mills, 6 
 Kansas, 388, 1870. Compare Reock ®. Newark, 33 N. J. Law, 139. Fur- 
 ther, as to local improvements, see chap. XIX. ; post, sec. 648 ; supra, sees. 
 383, 389. 
 
 ' New Albany v. Sweeney (construing general Towns and Cities Act), 13 
 Ind. 345, 1859; Lucas o. San Francisco, 7 Cal. 463; Lovell ®. St. Paul, 10 
 Minn. 390. Contracts with municipal corporations are construed with refer- 
 ence to the chartered or corporate powers of the city. 13 Ind. 345, supra. 
 If the eiiy corporation agrees with the contractor to collect the assessments from 
 the abutting owners, a failure to do so will render it liable. Morgan o. 
 Dubuque, 38 Iowa, 575, 1870. See Beard «. Brooklyn, 31 Barb. 143. 
 
ch. xivj contracts. 491 
 
 of property owners to make certain improvements, which, 
 when made, were chargeable upon the adjacent property. 
 An ordinance provided that contractors doing such work 
 should look to the adjacent property, and not to the city, 
 for their pay. Under these circumstances, the city entered 
 into a contract with the plaintiflF to grade a certain street, 
 the plaintiff agreeing that he would receive his pay from the 
 adjoining property. The plaintiff performed the work, and, 
 inasmuch as the adjacent owners had never given their con- 
 sent to the making of the improvement, he sued the city on 
 the contract, to recover for the work done ; and it was held 
 that the action could not be maintained.' 
 
 ' Leavenworth B. Rankin, 3 Kansas, 357,1864; Swift v. Williamsburg, 
 34 Barb. 427; Goodrich v. Detroit, 13 Mich. 379; Johnson®. Common Coun- 
 cil, 16 Ind. 337; New Albany v. Sweeney, 13 Ind. 345. 
 
 Where the contraelor has agreed to look for payment to the lot benefited, 
 or to the owner, he cannot hold the city, unless it may be in cases where the 
 whole proceeding is void, or the city neglects its duty. Kearney v. Coving- 
 ton. 1 Met. (Ky.) 339; Smith a. Milwaukee, 18 Wis. 63, 1864;. Finney «. 
 Oshkosh, lb. 309 ; Chicago v. People, 48 111. 416 ; Ruppert v. Baltimore, 33 
 Md. 184 ; Louisville v. Henderson, 5 Bush (Ky.) 515, 1869. 
 
 A city advertised for proposals to do certain public work, and the plain- 
 tiflf made proposals, which were accepted, without qualification, by an entry 
 on city records ; and it was decided that the statement in the published 
 notice, " the expense of the work to be assessed," &c., was part of. the con- 
 tract, no other provision for payment having been made, and that the 
 plaintiff could not maintain an action against the city until after the assess- 
 ment and collection of his compensation, or until it or its officers failed to 
 proceed with reasonable diligence, after the expense of the work was ascer- 
 tained, to make and collect an assessment, and to pay over money thus 
 collected. Hunt n. Utica, 18 N. Y. 443, 1858. 
 
 Extent of recovery by contractor against abutter where the woik is done 
 in a manner inferior to that stipulated for in the contract. Creamer ». 
 Bates, 49 Mo. 533, 1873. 
 
 Further, as to the rights and remedies of the contractor; of the property 
 owner, and the liabilities of the municipal corporation. Smith v. Milwau- 
 kee, 18 Wis. 68; Foote ®. Same, II. 370; Bond v. Newark, 19 N. J. Bq. 
 376 ; Fletcher v. Oshkosh, 18 Wis. 338, 333 ; Palmer v. Stump, 39 Ind. 339 ; 
 McSpedon v. New York, 7 Bosw. iSOl ; Reilly o. Philadelphia, 60 Pa. St. 
 467 ; Whalen «. La Crosse, 16 Wis. 371 ; Flournoy ®. Jeffersonyille, 17 Ind. 
 169; Creighton®. Toledo, 18 Ohio St. 447; Goodrich ». Detroit, 13 Mich. 
 379; Buffalo ». Halloway, 7 N. Y. (3 Seld.) 493; Storrs ®. Utica, 17 N. Y. 
 104; Leavenworth v. Mills, 6 Kansas, 388, 1870; Sleeper v. Bullen, 6 Kan- 
 sas, 300 ; Lansing v. Van Gorder, 34 Mich. 456, 1873. Post, chapter on 
 Taxation and Local Improvements. Supra, sec. 884. Infra, sec. 648; 
 HondnV-k V. Wert Springfield, 107 Mass. 541. 
 
492 MUOTCIPAIi CORPORATIONS. [Ch. XIV.. 
 
 § 402. It has beea asserted that where the expense of 
 making a local improvement is not to be raised by a general 
 tax, but solely upon the property benefited, that & failure 
 of (he corporation, though it is only the agent of the owners 
 to be assessed, to discharge its duty, by making the neces- 
 sary assepsment, or its unreasonable delay in collecting and 
 paying over the money, gives the contractor a right to re- 
 cover his compensation in an action against the corporation.' 
 The right to a general judgmen^shoqld, in our opinion, be 
 limited, in any event, to cases where the corporation can 
 afterwards reimburse itself by an assessment. For, why 
 should all be taxed for the failure of the council to do its 
 duty in a case where the contractor has a plain remedy, by 
 mandamus, to compel the council to make the necessary 
 assessment and proceed in the collection thereof with the 
 requisite diligence ? 
 
 § 403. Same. — Corporate Control hy Stipulation. — An 
 agreement by a contractor to execute a public improvement 
 under the general direction and supervision of a committee 
 of a city, makes such committee — acting reasonably, and 
 honestly, not arbitrarily and capriciously^ — exclusively the 
 judge, not only as to materials and manner, but also as to 
 the time of doing the work." But where a written contract 
 has been entered into between a municipal corporation and 
 a contractor, a general provision of an ordinance that the 
 work shall be done under the directions of certain officers, 
 confers no authority upon them essentially to change or 
 
 ' Beard ». Brooklyn, 31 Barb. 142, 1860. See Goodrich «. Detroit, 13 
 Mich. 279, 1864; Gumming ». Mayor, &c. of Brooklyn. 11 Paige, 596, 1845; 
 Baker v. Utica, 19 N. T. (5 Smith) 326, 1859; Green «. Mayor, &c. of New 
 York, 5 Abb. Pr. Rep. 503. See, generally, as to assessments for public 
 works : Doughty ». Hope, 3 Denio, 249 ; Manice «. Mayor, 8 N. T. 120 ; 
 People V. Mayor, &c. of New York, 5 Barb. 48 ; 8 Barb. 95 ; 23 Barb. 390 ; 
 In principle sustaining the view suggested in the text : Reock a. Newark, 
 33 N. J. Law, 129. Post, sec. 778, note. And see opinion of Field, C. J., 
 in Argenti v. San Francisco, 16 Cal. 255, 282, 1860. Post, chap. XX. on 
 Mandamus. 
 
 « Chapman ». Lowell, 4 Cush. '378, 1849, relating to drains in the streets 
 of the city. As to power of chancery to correct mistake of the engineer or 
 other person whose decision both parties to the contract have agreed to 
 abide by, see Railroad Company ». Veeder, 17 Ohio, 385. 
 
Ch. XIV.] CONTRACTS. 493 
 
 modify tbe provisions of the contract.' If, in a contract for 
 a public work, the corporation employer reserves the right 
 to make alterations in the form, dimensions, or materials of 
 the work, the contractor is bound by any such alterations 
 made in good faith ; but such -a clause does not authorize 
 the employer to annul the agreement, or to. stop the work 
 in an unfinished state." 
 
 § 404. Emdences of Indebtedness— Negotiable Bonds. 
 —We have elsewhere discussed the power of the legislature 
 to authorize the issue of municipal bonds in aid of railway 
 and other like enterprises,' and have also considered the 
 express and implied power of municipal corporations to 
 borrow money and issue obligations therefor.' It appropri- 
 ately belongs to this place, however, to notice more at 
 length the different kinds of corporate evidences of debt, 
 and the rights and remedies of the holders thereof, and to 
 this general subject will the remainder of the present chapter 
 be devoted. 
 
 § 405. Bonds issued by Tinunicipal corporations on 
 time, negotiable in form, and for sale in the market^ under 
 express authority from the legislature, are negotiable, with 
 all the qualities and incidents of negotiability. Such securi- 
 ties are made to raise money by their sale, and this object 
 
 ' Bonesteel «. Mayor, &c. of New York, 33 N. T. 163, 1860. But the 
 authority of the corporation may be implied from its having by its own act 
 rendered extra materials necessary to conform the work to the conditions 
 of the contract. Messenger v. Buffalo, 31 N. Y. 196, 1860. 
 
 As to reserved right to discontinue worh and annul contract. Bietry v. 
 New Orleans, 34 La. An. 31, 1873. 
 
 » Clark v. Mayor, &c. of New York, 4 Comst. 338, 1850. Eemedy of con- 
 tractor, and measure of damages in such a case, considered. It. It is 
 held, in Vermont, that a person who has contracted with the proper town 
 officers to build a road| cannot proceed with his contract after notice of an 
 appeal and recover of a town therefor. This decision is based upon a con- 
 struction of the statute of that state by which the appeal is intended to 
 stay or suspend all proceedings toward building the road, and the con- 
 tractor was bound to take his contract, subject to the contingency of the 
 appeal allowed by law. Taft ®. Pittsford, 33 Vt. (Wms.) 286, 1856. 
 
 ' Ante, sec. 104, et eeq. 
 
 ' Ante, sec. 81, ei aeq. ; supra, sec. 393, note. 
 
494 MUNICIPAL CORPOBATIONS. [Ch. XIV. 
 
 would be defeated if they were subject to equities (where 
 the power to issue exists) in the hands otbona fide holders.' 
 
 § 406. Ordinary Corporation Orders or Warrants. — 
 But ordinary city, county, and town orders or warrants 
 are in some respects, different from bonds of the character 
 just mentioned, and, in the author's judgment, the better 
 opinion is, that there is no implied power in the oflBlcers of 
 a town, county, or city corporation to issue warrants or 
 orders which shall be free from equities in the hands of 
 
 ' Mercer County v. Hactet, 1 "Wall. 83, 1863 (denying Diamond s. Lau- 
 rence County, 37 Pa. St. 368) ; Meyer ». Muscatine, 1 Wall. 384 ; Gelpcke v. 
 Dubuque, J6. 175; Moran v. Miami County, 3 Black, 733, 1863; Clapp ®. 
 Cedar County, 5 Iowa, 15 ; Morris Canal Company d. Fisher, 1 Stockt. Ch. 
 667, 1855 ; Craig «. Vicksburg, 31 Miss. 316 ; Jackson v. Railroad Company, 
 3 Am. Law Beg. (N. S.) 585; S. C, lb. 748, and note of Judge BedfleU; 
 Chapin «. Railroad Company, 8 Gray, 575; Lynde «. Winnebago County 
 (Iowa Courthouse bonds), U. S. Sup. Ct. Dec. Term, 1873; Clark v. Janes- 
 ville, 10 Wis. 136; Gould ». Sterling, 33 N. T. 464; S. C, 1 Am. Law Reg. 
 (N. S.) 390, and note; Clark v. Des Moines, 199, 313, and cases cited. 
 White V. Railroad Company, 31 How. 575 ; Bank ■». Railroad Company, 3 
 Kem. 599; S. C, 4Duer, 480; Aurora v. West, 33 Ind. 88; Commissioners 
 
 B. Bright, 18 Ind. 93 ; Barrett «. Schuyler County, 44 Mo. 197 ; De Voss o. 
 Richmond, 18 Gratt. 338; 7 Am. Law Reg. (N. S.) 589; State v. Madison, 
 7 Wis. 688; Clark v. Janesville, 10 Wis. 136, 1859; Maddox v. Graham, 3 
 Met. (Ky.) 56, 1859. 
 
 Oowpons attached to such bonds are negotiable, and the holder may sue 
 thereon in his own name without being interested in or producing the bonds 
 to which they were originally attached. Thompson v. Lee County, 3 Wall. 
 337, 1865 ; Murray v. L^rdner, 3 Wall. 110, 1864 ; Knox County v. Aspin- 
 wall, 31 How. 539, 1858; Johnson v. Stark County, 34 lU. 75; City v. 
 Lamson, 9 Wall. 478, 1869 ; Railroad Company v. Otoe County, 1 Dillon 
 
 C. C. R. 338. An action on a coupon is not barred in less time than the 
 bond to which it was originally attached. City ». Lamson, supra ; Lexing- 
 ton ». Butler, 14 Wall. 383, 1871. Row declared on. Ring «. County, 6 
 Iowa, 365; Railroad Company s. Otoe County, mpra ; Wiley v. Board, &o., 
 11 Minn. 371. The better practice in the author's judgment is to set out in 
 the declaration, the bond to which the coupon in srfit was attached, or its 
 legal effect and recitals. Effect of judgment for interest as an estoppel in a 
 subsequent suit for interest or principal. Bank v. Navigation Company, 3 La. 
 An. 394 ; Beloit v. Morgan, 7 Wall. 619. As to interest, infra, sec. 414. 
 
 Municipal corporations may plead the statute <tf Ihnitations in actions 
 against them on their bonds payable at a fixed time. De Cordova ». Galves- 
 ton, 4 Texas, 470, 1849; see Underhill e. Trustees, 17 Col. 173; Baker «. 
 Johnson Co., 33 Iowa, 151. 
 
Ch. Xrv.] CONTRACTS. 495 
 
 holders ; that the existence of such a power is not necessary 
 as an incident to those ordinarily granted or to carry out 
 ths purposes of the corporation, and would be attended 
 with abuse and fraught with danger. Ordinary warrants or 
 orders, negotiable in form, may be made by the proper 
 officers, and in many of the States such instruments may be 
 transferred by delivery or indorsement, and the holder sue 
 thereon in his own name, yet they are not commercial or 
 negotiable paper in the hands of holders so as to exoluda 
 inquiry into the legality of their issue, or preclude defences 
 thereto.' Ordinary warrants drawn, by one officer on 
 another officer of the same corporation are not bills of 
 exchange, as such bills involve the idea of two parties ; but 
 are orders by the corporation on itself — mere directions to 
 the treasurer to pay the amount to the bearer.' 
 
 ' Emery v. Mariaville, 56 Maine, 315; Clark v. Dea Moines, 19 Iowa, 
 199, 211-214, 1865, and cases cited ; Clark «. Polk County, lb. 248 ; People 
 e. County, 11 Cal. 170, 1858; Sturtevant v. Liberty, 46 Maine, 457; Smith 
 ». Cheshire, 13 Gray, 818, 1859 ; AndoTer v. Grafton, 7 N. H. 398, 1834 ; . 
 compare, however, Bank «. Farmington, 41 N. H. 82 ; Dalrymple v. Whitting- 
 ham, 26 Vt. 845; Inhabitants ®. Weir, 9 Ind. 324, 1857; School District v. 
 Thompson, 5 Minn. 280, 1861 ; S. P. Goodnow «. Commissioners, 11 lb. 
 31, 1865; Hyde®. Franklin, 27 Vt. 185, 1855; approved, Taft o. Pittsfoid, 
 28 lb. 286; Halstead v. Mayor, 3 Comst. 480; S. C.,5 Barb. 318; The Floyd 
 Acceptances, 7 Wall. 666, and reasoning of Mr. Justice Miller ; People v. 
 Gray, 23 Cal. 125 ; i 6. 447 ; Hubbard v. Lyndon, 28 Wis. 674, 1871. Warrants, 
 duly signed and sealed, axe prima facie valid, but open to defences. Com- 
 missioners o. Keller, 6 Kansas, 510 ; Commissioners v. Day, 19 Ind. 540, 
 1863. Infra, sec. 411. 
 
 Transferee or holder may aus in Ma own name. Emery s. Mariaville, 56 
 Maine, 315; Crawford County o. Wilson, 3 Eng. (Ark.) 314; Clark v. Des 
 Moines, 19 Iowa, 199; Campbell «. Polk County, 3 Iowa, 467 ; Clark ». Polk 
 County, 19 Iowa, 248. Otherwise in Massachusetts : Smith «. Cheshire, 13 
 Gray, 318, treating a town order, payable to bearer, as a mere chose in 
 action which could not be enforced in the name of an assignee. 8. P. 
 O'Donnell ». City," 7 Phil. (Pa.) 234. In many of the states, " the real 
 party in interest " may sue in his own name. In Vermont, as to right of 
 holder of town and cJounty orders to sue in nis own name, see Dalrymple v. 
 Whittingham, 36 Vt. 845 ; compare, Taft v. Pittsford, 28 Vt. 286, 289 ; 
 Hyde v. Franklin, 27 Vt. 185". Bight of indorsee to sue or enforce by manda- 
 mus in his own name. Kelly ». Mayor, &c., 4 Hill, 363; Clark ». School 
 District, 3 Bb. Is. 199; Moss «. Oakley, 3 Hill (N. Y.) 265; Commissioners 
 B. Day, 19 Ind. 450 ; Dively v. Cedar Falls, 21 Iowa, 565 ; Justices «. Orr, 
 13 Geo. 137. Post, chap. XX. sec. 685. 
 
 " Miller v. Thompson, 3 Man. & Gr. 576 ; Fairchild v. Railroad Company, 
 
496 MUNICIPAL CORPORATIONS. [Ch. XIV. 
 
 § 407. BanTcing and trading corporations have im- 
 plied or incidental power to make negotiable pgper ;" and 
 the same rule has, in some of the cases, been applied to 
 municipal corporations. The ordinary warrants of such 
 corporations, it is clear, do not cut oflf equities, and it is at 
 least doubtful how far they have the implied power to 
 make paper which shall have this eflPect, The adjudged 
 cases on this point are conflicting." 
 
 15 N. T. 337; Bulls v. Sims, 33 N. Y. 570, 572; Clark v. Polk County, 19 
 Iowa, 347; Harvey «. W. P. S. Co., 1 Doug. (Mich.) 193 ; Danas. San Fran- 
 cisco, 19 Cal. 486; Justices v. Orr, 13 Geo. 187. Munioipal certificates of 
 indebtedness are not " JtZfe of credit " within the meaning of the prohibition 
 (art. 1, sec. 10) of the National Constitution. Baltimore v. Board of Police, 
 15 Md. 376, 1859. As a county wa/rrant is an instrument by which the 
 money, property, or rights of a county may be affected, it is such an one as 
 may le forged. State v. Penley, 18 Mo. 445, 1853. Requisites of indictment 
 in such a case. 11. 
 
 Liability as respects scrip issued to circulate as money. Thomas v. Rich- 
 mond, 13 WaU. 349, 1870, and in which the city was held not to be liable. 
 See, on this subject, Allegheny City v. McOlurkan, 14 Pa. St. 81, 1850; 
 Jones ». Little Rock, 25 Ark. 301; Miller®. Lynchburg, 30 Gratt. (Va.) 330, 
 1871; Smith v. New Orleans, 33 La. An. 5, 1871; Clark ®. Des Moines, 19 
 Iowa, 199, 1865 ; Dively ®. Cedar Palls, 31 Iowa, 565 ; S. C, 37 lb. 337. 
 
 ' McCuUough V. Moss, 5 Denio, 567 ; Straus ®. Eagle Insurance Company, 
 5 Ohio St. 59 ; Mott ». Hicks, 1 Cow. 513 ; Attorney General v. Insurance 
 Company, 9 Paige, 470 ; 3 Kent Com. 299 ; 1 Parsons N. & B. 165 ; Clark v. 
 Des Moines, 19 Iowa, 313. Ante, sees. 81, 82. 
 
 « Kelly «. Mayor, &c., 4 Hill (N. T.) 263; Clark v. Des Moines, 19 Iowa, 
 190, 313 ; Came e. Brigham, 39 Maine, 39 ; Clarke ®. School District, 3 Rh. 
 Is. 199; Goodmans. Commissioners, ,11 Minn 31. Ante, sees. 81-83. 
 
 The ground has been broadly taken, that for debts and obligations law- 
 fully created, any corporation, public as well as private, has the implied 
 authority, unless prohibited by statute, charter or by-law, to evidence the 
 same by the execution of a bill, note, bond, or other contract, and to secure 
 the same by a mortgage, pledge, or other proper disposition of its property ; 
 that power to contract a debt c§,rries with it the power if) give a suitable 
 acknowledgpaent of it; and there is no rule of law in the absence of a 
 statute limiting the length of the credit. Municipality v. McDonough, 3 
 Rob. (La.) 343, 350, 1843; Barry v. Merchants' Express Company, 1 Sandf. 
 Ch. 380 ; cited with approval in Curtis ®. Leavitt, 15 N. T. 9, 63, and in 
 Smith V. Law, 31 N. Y. 396, 399, 1860 ; Bank, &c. •». Chilicothe, 7 Ohio, 
 part n. 31, 1836 ; Ketchum t>. Buffalo, 14 N. Y. 356, 1856, market house 
 bonds given on twenty-five years' time held valid, and see cases cited on 
 page 375, by Wright, J. ; Douglass v. Virginia City, 5 Nev. 147. See and 
 compare, however, Bateman «. Mid-Wales Railway Company, Law Rep. 1 
 
Ch. XIV.] CONTEACTS. 497 
 
 e * 
 
 § 408. Liability of Indorser of Warrants. —Warrants 
 or orders of a iminicipal corporation for the unconditional 
 
 C. p. 510. As to express power to issne bonds, &c., see also Bank of Bome 
 e. Village of Rome, 18 N. Y. 38, 44, and cases cited; Mills «. Gleason, 8 
 Am. Law Beg. 683 ; Louisiana State Bank ». Orleans Navigation Company, 
 3 La. An. 394. State bonds negotiable. Delafleld ®. Illinois, 3 Hill, 159. 
 
 Power '■'■to borrow mon&g" held to include power to issue negotiable bonds 
 or other usual securities to the lender. Commonwealth b. Pittsburg, 34 Pa. 
 St. 496, 511; Rogers v. Burlington, 3 Wall. 654, 1865. Ante, sec. 81. 
 Board of Supervisors of a county have not power to issue bill of exchange. 
 Canal Bank v. Supervisors, &c., 5 Denio, 517, 1848. Nor have village trus- 
 tees. Lake v. Trustees, 4 Denio, 530. Corporate city has the power. Kelly 
 V. Mayor, 4 Hill, 368; compare Clark «. Des Moines, 19 Iowa, 199, 313. In 
 Inhabitants, &c. <b. "Weir, 9 Ind. 334, 1857, an action against a congressional 
 township upon a promissory note made by the trustees, the court, per 
 Stiiart, J., says : " There is no power to make notes conferred by the act of 
 1841. That act was the charter under which they acted. The trustees, as 
 a corporation, had no power but such as that act expressly conferred, and 
 such as -might arise by implication, or essential to the exercise of those 
 granted. Such a power is always expressed, even jn bank charters. In so 
 limited a corporation as a congressional township, the power to make 
 promissory notes could hardly be implied. The case at bar cannot eaisily bt 
 distinguished in principle from McClure v. Bennett, 1 Blackf. 189, and 
 Mears v. Graham, 8 i5. 144." 
 
 Stahitory power " to issue county/ orders" gives no authority to issue ne- 
 gotiable bonds payable at a future clfay, with interest coupons attached. 
 The difference is substantial. Goodnow v. Commissioners, 11 Minn. 31, 
 1865; County Commissioners ». Carter, 3 Kansas, 115, 1860; Hull «. County 
 13 Iowa, 143. Statutory form of county warrants held to be directory, and 
 a^mere departure from this form is no defence to an action on the warrant. 
 Young «. Camden County, 19 Mo. 809, 1854. ' 
 
 Authority to a city to subscribe for stock to be paid for by " certificates 
 o/foosre," authorizes it to issue negotiable bonds with coupons attached— 
 =iuch "certificates of loan" and "bonds" being considered identical. Amey 
 ».■ Allegheny City, 34 How. (U. S.) 364, 1860; see Commonwealth v. Pitts- 
 Durg (power "to borrow money") 34 Pa. St. 496, 511; Same ®. Same, 41 
 Pa. St. 378. Power by public corporations to issue negotiable bonds may 
 be inferred f ronj the power to subscribe for stock and to make payment for 
 it. Curtis ®. Butler County, 34 How. (U. S.) 435 ; Bushnell b. Beloit, 10 
 Wis. 195. Express legislative authority to a city to subscribe lor stock in 
 a railroad " as fully as any individual," authorizes the issue, by the city, of 
 negotiable bonds inpayment therefor. Seybert ®. Pittsburg, 1 Wall. (U, S.) 
 373, 1863; approving, Commonwealth v. Same, 41 Pa. St. 378; Rogers ». 
 Burlington (power to " borrow money for any public purpose ") 3 Wall. 
 654, 1865; Meyers. Muscatine, 1 Wall. 385; Mitchell®. Burlington, 4 Wall, 
 370. By resolution, the council authorized the mayor to borrow money of 
 a bank and execute the note of the corporation therefor, instead of which 
 33 
 
498 MUNICIPAL CORPORATIONS. [Ch. XIV, 
 
 payment of money to a peAon named, or order, or bearer, 
 have the character of negotiable paper, so far, at least, as 
 to render parties indorsing them liable as indorsers."^ 
 
 he executed the "bond of the corporation under the seal of the corporation. 
 In an action on this hond by the payee, it was held that the corporation 
 could plead non extfaetum, since the act of the mayor in executing a writing 
 obligatory instead of a note, did not bind the corporation. Little Rock o. 
 State Bank, 3 Eng. (Ark.) 227; see Damon s. Granby, 3 Pick. 345 ; Randall 
 V. Van Vechten, 19 Johns. 60 ; Bank v. Patterson, 7 Oranch, 239 ; Head v. 
 Insurance Company, 3 Ih. 137. Where towns were required " to purchase" 
 liquors, and the selectmen were indictable if they failed to make provision 
 for executing the law, it was held that a town might give a negotiable note 
 for liquors actually purchased, and that the town could not defend against 
 it in the hands of a hma fide holder on the ground that the liquors were 
 sold in violation of the law of the state. Bank v. Parmington, 41 N. H. 
 33, 1860. What an indorsee is bound to inquire about, stated. 76. 43. 
 
 The general doctrines of the text in sections 405-407, are coincident with 
 the views of the United States Supreme Court in the recent case of the 
 Police Jury v. Britton, 15 Wall. 566, 1872, where it was held that county 
 officers in Louisiana, with the usual powers of such officers, have no implied 
 authority to issue negoticible pa/per (bonds with coupons), payable in the 
 future, to raise money or to fund an existing debt, which will cut ofi equities 
 in the hands of bona fide holders. Such a power is not necessarily incident 
 to the power to make speqjfled expenditures or improvements, though it 
 may be implied from certain express powers, as for example the power to 
 borrow money. After stating other instances in which the power has been 
 implied, Mr. Justice Srac^foy observes: " But in our judgment these impli- 
 cations should not be encouraged or extended beyond the fair inferences to 
 be gathered from the circumstances of each case. It would be an anomaly, 
 justly to be deprecated, for all our limited territorial boards, charged with 
 certain objects of necessary local administration, to become fountains of 
 commercial issues, capable of floating about in the flnancial whirlpools of 
 bur large cities." 15 Wall. 573. 
 
 ' Bull «. Sims, 38 N. T. 570, 1861. In this case the action was by an 
 indorsee against the defendant as indorser of the following instrument: — 
 
 " MrLWAtiKBB, Aug. 1, 1859. 
 
 "The treasurer will, or on before the 1st day of February next, pay to 
 the order of E. Sims, fifty dollars, out of any funds belonging to the city not 
 before spedaU/y appropriated, the same having been this day allowed for 
 dredging, and chargeable to the general city fund. 
 
 " R. R. Lynch, Ciej-i. . H. L. Page, Jlfoyor." 
 
 It was held that the defendant incurred the responsibility of an indorser 
 of negotiable paper, and that the plaintiff was not bound to show the exist- 
 ence of sufficient funds in the city treasury to pay the warrants, and not 
 specially appropriated at the time of its maturity. Campbell v. Polk 
 County, 3 Iowa, 4,67; Hodges v. Shnler, 23 N. Y. 114; Fairchild ®. Ogden- 
 
Ch. XrV.] CONTRACTS. 499 
 
 § 409. Payment and Cancellation of Warrants. — 
 Payment by the treasurer or proper oflBcer of a muDicipal 
 corporation of its orders or warrants ipso facto extinguishes 
 them. If lent, re-issued, or put into circulation again by 
 the officer, after he has once obtained credit therefor, they 
 are not valid securities, not even, it seems, in the hands of 
 an inmocent holder.' 
 
 § 410. RigMs and Remedies of Holder of Warrants. — 
 A creditor of a town is not bound to receive an order on the 
 treasurer, but may sue upon his original cause of action.' 
 But if he does receive it he is charged with the duty of 
 presenting it to the treasurer, upon whom it is drawn, or of 
 alleging facts which excuse presentment, before he can 
 maintain an action upon it. As such aa order is, in effect, 
 an order by the debtor on himself, if presented and pay- 
 ment be refused, the town is liable instantly, and without 
 notice of non-payment." 
 
 burgh, &c. Railroad Company, 15 N. Y. 337. Compare as to liability of in- 
 dorse! : Keller ». Hicks, 22 Cal. 457. 
 
 ' Canal Bank ». Supervisors, 5 Denio (N. T.) 517, 1848. In this case it 
 •was held that where, without any fraudulent intent, the holder of valid 
 county orders exchanged them with the treasurer for others which were 
 in fact paid, but which had never been allowed him in his accounts, the 
 debt represented by the valid orders was not extinguished, and was a 
 sufficient consideration to support a settlement with the county allowing 
 it. As to illegal orders in hands of boriaflde holder : Halstead v. The Mayor, 
 &c. of New York, 3 Comst. 430 ; affirming S. C, 5 Barb. 218. Payment to 
 bearer in good faith exonerates the corporation. Sweet ». Carver Co., 16 ' 
 Minn. 106, 1871. 
 
 ' Benson v. Carmel, 8 G-reenl. 112; "Willey v. Greenfield, 30 Maine, 452, 
 1849. 
 
 * Vamer t. Nobleborough, 2 Greenl. 121, where Mellm, C. J., says: "No 
 sound reason can be given why a town should be subjected to the perplexity 
 of costs of an 'action before the payee of an order will do his duty and re- 
 quest the payment.'' " There is an implied engagement to conform to es- 
 tablished usage,* and present the order for payment." Benson v. Carmel, 
 supra; Pease ®. Cornish, 19 Maine (1 Appl.) 191, 1841. As to mode of pre- 
 sentment : Steel ®. Davis County, 2 G. Greene (Iowa) 469; Campbell v, 
 Polk County, 3 Iowa, 467. Where the payee has accepted county orders 
 for a debt against the county, and has parted with such orders, he cannot 
 sue the county for the original debt. Crawford Coimty v. Wilson, 3 Eng. 
 (Ark.) 314, 1846. See Allison ». Juniata County, 50 Pa. St. 351. An unpaid 
 and dishonored warrant on the corporation treasurer is not, prirtia facie, at 
 
500 MUNICIPAL CORPORATIONS. [Ch. XIV. 
 
 §411. Presvmption of Liability.— County and city 
 orders signed by the proper officers are, prima facie, Mnd- 
 ing and legal. These officers will be presiimed to have 
 done their duty. Such orders make % prima facie cause of 
 action. Impeachment must come from the defendant.' 
 
 § 412. Defences. — A municipal corporation is not es- 
 topped, after a warrant upon its treasury has been issued, to 
 set up the defence of ultra vires^or fraud, or want, or 
 failure of consideration.'' And it may maintain a bill in 
 equity to cancel warrants illegally issued.' 
 
 least, an extinguishment or novation of the original debt. Goldschmidt v. 
 New Orleans, 5 La.*An. 436; Short v. New Orleans, 4 /S. 381. 
 
 ' Commissioners «. Day, 19 Ind. 450, 1863; 9 76. 359; Commissioners©. 
 Keller, 6 Kansas, 510, 1870; Clark v. Des Moines, 19 Iowa, 311, 1865. Such 
 debts " do not stand on the footing of those contracted under a special eon- 
 ditwnal grant of power." 19 Ind. 450; People i;. Mead, 34 N. T. 114. Ante, 
 chap. IX. p. 374, sec. 153 ; supra, sec. 406. 
 
 ^ Thomas ». Richmond (scrip to circulate as money), 13 Wall. 349 
 1870; Webster County v. Taylor, 19 Iowa, 117, 1865; Clark «. Des Moines, 
 n. 199; Clark «. Polk County, IS. 348; Hodges v. Buffalo, 3 Denio, 110; 
 Halstead ». Mayor, &c., 3 N, Y. 430; Brown «. Utica, 3 Barb. 104; An- 
 thony «. Inhabitants,. &c., 1 Met. 386. The allowance of a claim by a county 
 board is not final and conclusive. Such allowance is prima fade evidence 
 of the correctness of the claim, "\>vA,," &a.j& Kingman, C. J., "the settle- 
 ment of an account by the county board is not more sacred than a settle- 
 ment made by individuals." The court therefore held, and properly so, 
 that the allowance of a claim by the county was not an adjudication in the 
 sense that it would conclude the county as to the amount allowed when 
 sued upon the warrant drawn in pursuance of such allowance. • Commis- 
 sioners ®. Keller, 6 Kansas, 510, 1870. Post, chap. XXin. Warrants 
 may, it seems, be usurious. Clark v. Des Moines, mpra. Post, sec. 414, 
 note. 
 
 ' Pulaski County*. Lincoln, 4 Eng. (Ark.) 830, 1849; Webster County 
 ■B. Taylor, 19 Iowa, 117, 1865; Trustees «. Cherry, 8 Ohio St. 564, 1858; 
 Glastenbury ®. McDonald, 44 Vt. 450, 1873. In Mississippi a board known 
 as the board of police are authorized by law to audit and allow, upon due 
 proof, all claims against the county, and counties in that state cannot be 
 sued directly. The action of theboard in allowing claims for matters of 
 county charge, and in ordering warrants to issue therefor, is final and con- 
 clusive on the county, in the absence of fraud, until it is reversed or va- 
 cated. Carroll «. Board, &c., 38 Miss. (6 Cush.) 38, 1854. laming new 
 orders far old r Effect of, see Clark v. Des Moines, 19 Iowa, 109; Canal 
 Bank v. Supervisors, 5 Denio, 517; Lake v. Trustees, 4 Ih. 530. On war- 
 »ants or orders the statute of. limitations does not begin to run until payment 
 
ch. xtv.] contracts. 501 
 
 § 413. Payable out of a particular fund. — If by law a 
 partictilar claim is to be paid out of a special fund, a war- 
 rant or order issued therefor should be made payable out of 
 such fund ; if made payable from the treasury generally by 
 the officers issuing it, the corporation is not bound by their 
 act.' An order or warrant concluding with the words " and 
 charge the same to the account of Union Avenue," is pay- 
 able out of the particular fund indicated, and is not a claim 
 against the corporation." But the distinction must be ob- 
 served between orders payable out of a particular fund, and 
 those which evidence a general corporate liability but are 
 directed to be charged to a particular account.' 
 
 is denied. Justices b. Orr, 12 Ga. 137, 1853. See Carroll «. Board, &o., 
 28 Miss. 38 ; De Cordova ®. Galveston (bonds), 4 Texas, 470 ; City v. Lamson 
 (coupons), 9 Wall. 478. 8npra, sec. 406, note; Baker ®. Johnson County, 
 83 Iowa, 151. 
 
 • County Commissioners v. Cox, 1 Ind. 403, 1855; Campbell v. Polk, 
 County, 49 Mo. 314, 1873. Post, chap. XX. 
 
 » Lakes. Trustees, &c., 4 Denio (N. Y.) 530, 1847, remedy of holder 
 discussed; distinguished from Kelly v. Mayor, &c. of Brooklyn, 4 Hill, 
 363 ; and see McCuUough ». Mayor, &c., 33 Wend. 458 ; Cuyler v. Rochester, 
 13 Wend. 165 ; Argenti v. San Francisco, 16 Cal. 355, and note remarks of 
 Field, C. J.; Martin v. San Francisco, Tb. 285; Kingsberry ». Pettis Co., 
 48 Mo. 207, 1871. An instrument in this form : 
 
 " Dbcembbb 31, 1836. 
 
 " City of Brooklyn, ss. To the City Treasurer. Pay A. Jj- or order. 
 $1500, for award No. 7, and charge to Bedford road assessment, &c. 
 
 "J. T., Mayor. 
 "A. G. S., Olerl." 
 Held, 1st. Negotiable, and not payable out of any special fund. 2nd. Cor- 
 poration was not discharged by failure to present and give notice, no dam- 
 age or injury being sustained in consequence of the omission. Kelly v. 
 Mayor, &c., 4 Hill (N. T.) 263, 1843; Steel v. Davis County, 2 G. Greene 
 (Iowa) 469 ; Campbell v. Polk County, 3 Iowa, 467. 
 
 ' Clark V. Des Moines, 19 Iowa, 199, 323 ; Edwards on Bills, 143 ; Pease 
 V. Cornish, 19 Maine, 191; Campbell®. Polk County, 3 Iowa, 467; Com- 
 missioners «. Mason, 9 Ind. 97 ; Bayergue ». San Francisco, 1 McAU. 0. C. 
 R. 175; Bull v. Sims, 23 N. Y. 570; Montague ». Horan, 13 Wis. 599. In 
 an action on a county order -payable out of the three per cent, fund, " as 
 fast as the same shall accrue to the county," it must he alleged that the county 
 has received money from the specific fund named applicable to the order in 
 suit, or that the order was fraudulently drawn upon a fund in which the 
 county had no assets. Commissioners v. Mason, 9 Ind. 97, 1857. See 
 chapter on Mandamma, post 
 
603 ttUNIOIPAL CORPORATIONS. [Oh. XIV. 
 
 § 414. Interest on 'Corporate Indebtedm,ess. —The ru le ia 
 respect to interest on debts against municipal corporations, 
 does not ordinarily differ from that which applies to 
 individuals.' Under the Missouri statute, providing gen- 
 erally that creditors shall be allowed interest at the rate of 
 six per cent, per anum, &c,, it is held that county warrants 
 draw interest after presentment to the treasury and refusal 
 of payment by the treasurer, the cqjirt regarding the general 
 statute as to interest broad enough to embrace all debtors — 
 counties as well as individuals." But in Illinois it is held 
 that the debts of municipal corporations are payable at the 
 treasury of the body ; that interest on coupons — that is, 
 interest on interest — cannot be recovered, unless there be a 
 special agreement to that effect, since such corporations are 
 not named in the act regulating interest. The court remarks : 
 ".Whatever power these corporations may possess to con- 
 tract for the payment of interest, in the absence of any 
 express legislation on the subject, we are of opinion that 
 their indebtedness, in the absence of such agreement, does 
 not bear interest. If such instruments (coupons) could in 
 any event draw interest without an express agreement, it 
 could only be after a proper demand of payment. Until a 
 demand is made, such a body is not in default. They are 
 not like individuals — bound to seek their creditors to make 
 payments of their indebtedness." " 
 
 ' Langdon s. Castleton, 30 Vt. 385 (action on book account). 
 
 ' Bobbins v. County Court, 3 Mo. 57, 1831. In Iowa, coupons on comity 
 and city bonds are held to d/rom interest. Rogers ®. Lee County, 1 Dillon 
 C. C- R. 629. See Railroad Company v. Evansville, 15 Ind. 395 ; Hollings- 
 ■worth V. Detroit, 3 McLean, 472 ; Pruyn v. Milwaukee, 18 Wis. 367. If, 
 under authority to issue bonds with eight per cent, interest, bonds be issued 
 drawing twelve per cent., they are valid and bear interest at the statutory 
 rate. Quincy v. Warfield, 25 111. 317. Umr^. Whether usury can be pre- 
 dicated of a sale or issue by a corporation of its securities. So held, Danville 
 3. Sutherlin, 20 Gratt. , (Va.) 555, 1871 ; Lynchburg v. Norvell, 30 Gratt. 
 (Va.) 601, 1871 ; Clark v. Des Moines, 19 Iowa, 199. May be ma.de payable 
 out of the state. Meyer v. Muscatine, 1 Wall. 384 ; Maddox v. Graham, 3 
 Met. (Ky.) 56. 
 
 ' Pekin v. Reynolds, 31 111. 529, 1863 ; S. P. Chicago v. People, 56 111. 
 327, 1870 ; People v. Tazewell County, 22 111. 147; Johnson v. Stark County, 
 24 111. 75. In Madison County v. Bartlett, 1 Scam. (111.) 67, it was held 
 'that cohnties were not liable to pay interest on their orders or warrants, 
 
Ch. XIV.] CONTRACTS. 505 
 
 § 415. Railroad Aid Bonds — Qourse of Decision in 
 the United States Supreme Qowrt. — There has been nnich 
 controversy, as heretofore shown, in the different States con- 
 cerning the constitutional power of the legislature to au- 
 thorize municipal and public corporations to subscribe for 
 stock in private railway companies and to levy and collect 
 taxes to pay indebtedness thus created.' Eeapecting nego- 
 
 not being named in the statute regulating interest, and the common law 
 not allowing it to be recovered. So in Pennsylvania: Allison v. County, 50 
 Pa. St. 351. In tbat state a county is not suable on its warrants, but suit 
 must be on original claim. IT). Post, chap. XX 
 
 ■ Ante, chap. VT. sec. 104, et seq. Since the decision of the Supreme 
 Court of Michigan, in the People v. Township, Board of Salem, 30 Mich. 
 452 ; S. C, 9 Am. Law Reg. (N. S.) 487, before mentioned {anie, sec. 105), 
 the question arose in the United States Circuit Court for the western dis- 
 trict of Michigan, in an action on municipal railway aid bonds, whether the 
 federal court was conehided by the judgment of the Supreme Court of the 
 state, and, if not, whether the holder of bonds, issued in full compUarvce 
 with the statute, could recover thereon. Emmons, Circuit Judge, in an 
 elaborate opinion, holds, as to bonds issued iefore the decision of the 
 Supreme Court of the state, that the federal courts are not concluded 
 thereby, and that the constitutional power of the legislature to authorize 
 their issue, in the absence of special limitations, must be regarded as settled, 
 at least as respects the federal tribunals. The opinion displays great 
 research and learning, and will be found reported under the name of Tal- 
 cott «J. Township of Pine Grove, vol. L Bench and Bar (N. S.) 50, 1873. 
 The Supreme Court of Michigan adheres to its opinion on this subject in 
 the latter case of the People «. State Treasurer. Ante, sec. 105. The 
 course- of reasoning of Emmons, J., in this case is coincident with that of 
 the Supreme Court of the United States in the recent case of Olcott ». The 
 Supervisors, December Term, 1873. In the case just mentioned the Circuit 
 Court of the United States, sitting in Wisconsin, decided that since the 
 Supreme Court of that state had held a certain act under which the bonds 
 in question were issued to be unconstitutional, and had never holden other- 
 wise, that.this construction, though given after the bonds were issued, was 
 binding upon or should be followed by the federal courts. But the Supreme 
 Court of the United States was of the opinion that, inasmucl^ as the decision 
 of the State Supreme Court was not based upon any special and peculiar 
 provision of the state constitution, but upon general principles of law, and 
 related to contracts, the case was not one in which the decision of the State 
 Court had any other than a persuasive force, and it reversed the judgment 
 of the Circuit Court, and held that the bonds could be enforced. Post, eec. 
 416J. 
 
 In Gilchrist ®. Little Rock, 1 Dillon C. C. R. 261, and in Ranlett v. 
 Leavenworth, 1 6. 363, the Circuit Court of the United States for the eighth 
 circuit, prior to any decisions of the Supreme Courts of the states of Arkan- 
 
604 MUNICIPAL C0RP0EATI0N8. [Ch, XTV. 
 
 liable bonds issued under legislative autliority by munici- 
 palities for such and kindred, purposes, when in the hands 
 of bona fide holders, the Supreme Cotirt of the United 
 States, influenced, doubtless, by a keen sense of the in- 
 justice and odium of repudiation, has at aU times displayed 
 a strong determination effectually to enforce their payment. 
 
 § 416. Accordingly, it has refused to be concluded by 
 decisions of the state court against the validity of such 
 bonds, made after the bonds were issued;' -it has- adopted, 
 when necessary to protect the bonaflde holders of such se- 
 curities, liberal constructions or statutes and charters au- 
 thorizing the creatiomof such debts ;" against such holders 
 it has given no favor to defences based upon mere irregu- 
 larities in the issue df the bonds or non-compliance with 
 preliminary requirements, not going to the question of 
 power to issue them ;' and has held that the Circuit Courts 
 of the United States were clothed with full authority, by 
 mandamus or otherwise, to enforce the collection of judg- 
 ments rendered therein on such bonds, and that this author- 
 ity could not in the least be interfered -with, either by the 
 legislature or the judiciary of the states.* It has upheld 
 
 gas and Kansas as to the constitutional validity of municipal railway aid 
 bonds, declined to pronounce such bonds in the hands of bona fide holders 
 to be void for the want' of authority in the state legislature to authorize 
 their issue. History of the Iowa municipal bond cases. King v. Wilson, 1 
 Dillon C. 0. R. 555. 
 
 ' Gelpcke «. Dubuque, 1 Wall. 175, 1865 ; Havemeyer v. Iowa County, 3 
 11). 294; Thompson «. Lee County, lb. 837; Lee County ». Rogers, 7 lb. 
 181 ; Butz ®. Muscatine, 9 lb. 571 ; Olcott «. Supervisors, December Term, 
 1873; Post, sec. 4166; City «. Lamson, 9 Wall. 477; Campbell «. Kenosha, 5 
 Wall. 194, 1866. Read last two cases in connection with Foster ». Kenosha, 
 13 Wis. 616, which, in effect, is overruled or disregarded. See on this point 
 Steines «. Frafiklin County, 48 Mo. 167; Columbia County v. King, 13 
 Florida, 451. 
 
 ^ Gelpcke ». Dubuque, »Mpm/ Meyer e. Muscatine (charter authorizing 
 borrowing of money), 1 Wall. 384; Rogers v. Burlington, Z lb. 654; "Van 
 Hostrup B. Madison City, 1 Wall. 391 ; Seybert ». Pittsburg, 1 Wall. 373. 
 
 ' Knox County v. Aspinwall, 31 How. 539 ; Moran ®. Commissioners, 3 
 Black, 733; Bissell ». Jeflfersonville, 34 How. 387; Marsh ». Fulton County, 
 10 Wall. 676, 1870. 
 
 • Yon Hoffman v. Quincy, 4 Wall. 535 ; Galena v. Amy, 5 lb. 705 ; Riggs 
 
Ch. XIV.] CONTRACTS. 505 
 
 and protected the rights of such creditors with a firm hand, 
 disregarding, at times, it would seem, principles which it 
 applied in other cases, and asserting the jurisdiction and 
 authority of the federal courts with such striking energy 
 and vigor as apparently, if not actually, to trench upon the 
 lawful rights of the states and the acknowledged powers of 
 the state tribunals ; yet, upon the whole, there is little 
 doubt that its course has had the approval of the profession 
 in general and of the public, and it will be well if it shall 
 teach municipalities the lesson that if, having the power to 
 do so conferred upon them, they issue negotiable securities, 
 they cannot escape payment if these find their way into the 
 hands of innocent purchasers. Unfortunately, as will pres- 
 ently appear, the decisions on this important subject in the 
 Supreme Court of the nation, and in some of the state 
 courts, are not in all respects harmonious.' 
 
 § 416a. Under the line of decision in the several States 
 heretofore adverted to, sustaining the constitutionality of 
 municipal railway aid bonds," millions upon millions of these 
 securities have been issued by townships, counties and 
 cities in the diflfetent states, and sooner or later their issue 
 has been quite generally, though not always, followed by 
 attempts to escape payment. The misrepresentations which 
 have oftentimes induced the issue of the bonds, and the dis- 
 appointment arising from the over-estimated benefits of the 
 roads to the localities which aided their construction, make 
 the attempts to avoid payment of the bonds not unnatural, 
 and more excusable than they would otherwise be. The 
 judicial history of these attempts is found in the law reports 
 of the diff'erent states and in those ot the federal tribunals ; 
 and a comparison of their judgments shows such a diversity 
 of opinion upon some important questions connected with 
 such securities as to render it most expedient to refer sepa- 
 rately to the decisions of the two classes of courts. It is 
 
 ». Johnson County, 6 IK 166 ; Butz v. Muscatine, 8 Ih. 375. See, also, post, 
 chap. XX. on Mandamus, and cases there, cited. 
 
 ' The general questions relating to the power to aid railways are con- 
 sidered in a previous chapter. Ante, chap. VI. sec. 104, et seq. 
 
 ' Ante, sec. 104, et seq. 
 
506 MUNICIPAL CORPORATIONS. fCaXIY. 
 
 particularly important to notice with Bome fullness and car«f 
 the opinions of the Supreme Court of the United States, 
 since, for the reasons above-mentioned, the course of 
 this tribunal and of the state tribunals has been such as to 
 draw to the federal courts, in most of the states, all, or nearly- 
 all, of the litigation arising from this source. Wherein the 
 state courts and the federal courts dtflFer, and wherein they 
 agree, will best appear by referring to some of the principal 
 adjudications. 
 
 § 4166. In the well-known Iowa municipal railway aid 
 bond cases,^ the bonds were issued after the State Supreme 
 Court had aflSrmed the constitutional power of the leg- 
 islature to authorise their issue, and before the same 
 court had reversed its holding in this respect ; and in 
 these cases the Supreme Court of the United States held it 
 was at liberty to take, and it did take, the view which ob- 
 tained in the highest judicial tribunal of the state at the 
 time the bonds were issued ; and hence it adjudged that the 
 bonds were binding upon and enforceable against the muni- 
 cipalities and counties, although the Supreme Court of the 
 State was at the same time holding that under the constitu- 
 tion and laws of Iowa the bonds were utterly void. Subse- 
 quently, the Supreme Court of the United States went 
 farther, and in a recent case it held that such bonds in the 
 hands of innocent holders are valid, although the State 
 Supreme Court had held otherwise, the latter basing its 
 judgment, however, upon the general principles of the law 
 and not upon any special and peculiar provision of the con- 
 stitution of the state." It seems quite clearly to be the doc- 
 
 > Gelpcke v. Dubuque, 1 Wall. 175, 1865; Thompsons. Lee Co., 3 Wall. 
 337, 1865 ; Havemeyer v. Iowa County, 3 Wall. 394 ; Rogers ». Burlington, 
 3 Wall. 654, 1865; Mitchell «. Burlington, 4 WaU. 270 ; ante, sec. 416; Lee 
 County ». Rogers, 7 Wall.. 181, 1868; Butz «. Muscatine, 8 Wall. 575; King 
 e. Wilson, 1 Dillon C. C. 555, 1871, gives a view of the decisions of the 
 state and federal courts upon the subject of municipal railway aid bonds in 
 Iowa. That obligations of contracts cannot be impaired by subsequent 
 decisions see, also, Chicago v. Sheldon, 9 Wall. 50 ; City «. Lawson, 9 Wall. 
 477, 1869. 
 
 » Olcott V. Supervisors, &c., U. S. Sup. Court, Dec. T. 1873. Ante, 
 Bee. 4-15, note. 
 
Oh. XIV.] MUNICIPAL COURTS. 607 
 
 trine of the United States Supreme Court upon this subject, 
 that it is not concluded by the decisions of the state courts 
 in any, case where they are made after the bonds are issued 
 £Hid have been sold in the markets ; and such is undoubtedly 
 its doctrine in all cases relating to this class of securities, 
 where the questions involved do not turn upon the construc- 
 tion of »peculiar provisions of the state constitution and 
 laws. It has not decided that it would hold valid bonds 
 issued after the Supreme Court of the state had held them 
 to be invalid, and it would not probably so hold, since such 
 a doctrine is not necessary to protect the innocent owners of 
 such securities, and would involve the consequence of the 
 federal courts setting up a policy in a state contrary to its 
 constitution and laws as expounded by its authorized and 
 rightful tribujials.' 
 
 § 416c. As preliminary to a more immediate view of the 
 principal cases decided by the Supreme Court of the United 
 States upon municipal railway aid securities, it may 
 be observed that the general result of its decisions have 
 beenvery clearly summarized in one of its most recent judg- 
 ments relating to bonds of this character. " Bonds, payable 
 to bearer," says the learned Justice- who delivered the 
 opinion of the court, "issued by a municipal corporation 
 to aid in the ooastruction of a railroad, if issued in pursuance 
 of a power conferred by the legislature, are valid com- 
 mercial instruments ; but if issued by such a corporation 
 which possessed no power from the legislature to grant 
 such aid, they are invalid, even in the hands of innocent 
 holders. Such a power is frequently conferred to he exer- 
 cised in a special manner, or subject to certain regulations, 
 conditions or qualifications, but if it appears that the bonds 
 issued show by their recitals that the power was exercised 
 in the manner required by the legislature, and that the 
 bonds were issued in conformity with those regulations and 
 pursuant to those conditions and qualifications, proof that 
 any, or all, of those recitals are incorrect will not constitute 
 
 ■ King ». Wilson, 1 Dillon C, C. 555, 1871 ; Commercial Bank «. Ida, 3 
 Dillon C. C. R. 1873. See, howevef, on this subject, Butz v. Muscatine, 8 
 Wall. 575, 1869 ; Olcott b. Supervisors, supra. 
 
608 MUNICIPAL CORPORATIONS. [Ch. XIV. 
 
 a defence to the corporation in a suit on the bonds or 
 coupons, if it appears that it was the sole province of the 
 municipal officers who executed the bonds to decide whether 
 or not there had been an antecedent compliance with the 
 regulation, condition, or qualification which it is alleged 
 was not fulfilled.'" 
 
 It is definitely settled by this court that mere irregulari- 
 ties in the exercise of the power will not avail as a defence 
 against an innocent holder for value, and that the only 
 defence open against such a holder is the want of power to 
 issue the hands. Obviously, then, the most important 
 inquiries to be considered are those which relate to the 
 question, wJien the power exists or arises ; who is to decide 
 whether it existed or had arisen when the bonds were 
 issued ; and what will estop the corporation which issued 
 them to set up in defence a non-compliance with antecedent 
 or preliminary conditions ; and it is these inquiries that 
 we shall seek to illustrate by a reference to the decisions of 
 the courts in cases which have arisen for judgment. 
 
 § 417. Leading Cases in the United States Supreme 
 Court Notided — The case of The Commissioners of Knox 
 County «. Aspinwall," respecting the liability of municipal 
 and public corporations on their negotiable railway aid 
 bonds, deserves to be particularly noticed, as it is a leading 
 case on this subject The action was by a bona fide holder 
 for value of certain coupons attached to bonds issued by 
 Knox county, Indiana, in payment of a subscription to rail- 
 road stock. The defence was that the bonds were not bind- 
 ing upon the county, because the county commissioners 
 possessed no power to execute them. By statute, the 
 county commissioners were authorized "to take stock in 
 the railroad, payable in county bonds, provided a majority 
 of the qualified voters of said county, at a designated elec- 
 tion, shall vote for the same.'''' The ground upon which 
 
 ' St. Joseph Township «. Rogers, V. S. Supreme Court, December Term, 
 1873, not yet reported; opinion by Olifford, J. 
 
 In general throughout this work the author has not referred at length 
 in the text to particular cases, but the importance of this subject has in- 
 duced him to depart to some extent f rotn his usual course. 
 
 » Commissioners of Knox County «. Aspinwall, 31 How. 539, 1858. 
 
Ch. XIV.] CONTEACTS. 509 
 
 the want of authority to execute the bonds was placed by 
 the county was the omission to comply with the requisition 
 of the statute in respect to the notices for the election 
 (which the statute provided should be held on a fixed day), 
 at which a vote was to be taken for and against a subscrip- 
 tion to the stock of the railroad company. It was admitted 
 in the case that the required notices were not given ; and 
 the court seemed to concede "that this would be 5.ecisive 
 against the authority of the county to issue the bonds, 
 were it not for the question which underlaid it ; and that is, 
 who is to determine whether or not the election has been 
 properly held, and a majority of the votes cast in favor of 
 the subscription ?" " Is it," the court inquires, " to be de- 
 termined by the court, in this collateral way, in* every suit 
 upon the bond, or coupon attached, or by the board of 
 commissioners, as a duty imposed upon it before making 
 the subscription i" The court were qf the opinion, and so 
 decided, that the county commissioners were the proper 
 judges whether or not a majority of the votes in the county 
 had been cast in favor of the subscription to the stock, and 
 whether or not the election had been properly held, and 
 that these questions cannot be determined collaterally in 
 actions upon the bonds or coupons. The court, in assign- 
 ing the reasons for this holding, speaking through Mr. 
 J wsiice Nelson, say: "The right of the board [of county 
 commissioners] to act in execution of the authority [con- 
 ferred by the statute] is placed upon the fact that a majority 
 of the votes had been cast in favor of the subscription ; and 
 to have acted without first ascertaining it, would have been 
 a clear violation of duty ; and the ascertainment of the fact 
 was necessarily left to the inquiry and judgment of the 
 board itself, as no other tribunal was provided for the pur- 
 pose. The board was one, from its organization and general 
 duties, fit and competent to be the depository of the trust 
 thus confided to it. The persons composing it were elected 
 by the county, and it was already invested with the highest 
 functions concerning its general police and fiscal interests." 
 " We do, not say," he adds, " that the decision of the board 
 would be conclusive in a direct proceeding to inquire into 
 the facts previously to the execution of the power, and be- 
 fore the rights and interests of third parties had attached ; 
 
510 MUNICIPAL CORPORATIONS. [Ch. XIV. 
 
 but after the authority has been executed, tbe stock sub- 
 scribed, and the bonds issued and in the hands of innocent 
 holders, it would be too late, even in a direct proceeding, 
 to call it in question. Much less can it be called in question 
 to the prejudice of a lona fide holder of the bonds in tMs 
 collateral way."' 
 
 § 418. The author Ventures to remark that he believes 
 the decision to be right, and Iqf the reasons thus clearly 
 stated by this able and experienced judge. But as sustain- 
 ing the decision, a further position by way of argument is 
 taken which, unless it is to be understood in the limited 
 sense herein suggested,, he considers to be untenable, of a 
 most dangerous nature, and subversive of an important 
 principle in the law of agency applicable both to private 
 and public agents. That position is this : that a purchaser 
 of the bonds had a right to assume, from the mere fact that 
 they were issued, that the condition on which the county 
 was authorized to issue them had been complied with, and 
 that a recital in the bonds that the requirements of the law 
 had been met amounts to an estoppel in pais upon the cor- 
 poration, of which the officers issuing the bonds were the 
 public agents. That this is the position assumed by the 
 court, will appear by the following extract: "Another 
 answer," continues Mr. Justice Nelson, " to this ground of 
 defence is, that the purchaser of the bonds bad a right to 
 assume that the vote of the county, which was made a con- 
 dition to the grant of the power, had been obtained, from 
 the fact of the subscription by the board to the stock of the 
 railroad company, and the issuing of the bonds. The bonds, 
 on their face, import a compliance with the law under which 
 they were issued. 'This bond,' we quote, 'is issued in 
 part payment of a subscription of $200,000, by the said 
 Knox county, to the capital stock, &c. by order of the 
 board of commissioners in pursuance of the 3d section of 
 the act, &c. passed by the General Assembly of the State 
 of Indiana, and approved January 15th, 1849.' The pur- 
 chaser was not hound to look further for evidence of a 
 compliance with the conditions to the grant of tTie power. ''"'^ 
 
 ' Commissioners of Knox County ®. Aspinwall, 31 How. 539, 544. 
 
 ' i&. 545. If by this it is meant that where the power to issue bonds ig 
 
Ch. XrV.] CONTRACTS. . 511 
 
 This principle has been reiterated and applied by the court 
 in subsequent cases.' Notwithstanding the broad la:iguage 
 
 given upon the condition of a previous majority vote in favor of the pi' vj- 
 osition, the public or municipal officers can, where no vote has been taken yr 
 the propositwn has leen voted down, bind the county by the issue of bonds 
 and false recitals thereini the author feels bound respectfully to insist that 
 in his judgment, the principle is unsound, and certainly it is one which will 
 entail needless and incalculable injury upon public and municipal corpora- 
 tions. These securities, it is true, are intended to be sold in distant mar- 
 kets, and therefore it cannot reasonably be required that purchasers shall 
 be af!ected with irregularities, but they ought to be held to ascertain 
 •whe*,her the substantial precedent conditions of the power have been, in fact, 
 coi'iplied with, and it ought not to be in the power of public officers, unless 
 th* decision of this question is plainly committed to them, to bind the 
 CJiporation for which they act by their mere statements of what is in point 
 of fact untrue. 
 
 On grounds similar to those here suggested it has been held by the 
 Supreme Court of Missouri that bonds issued where an election is required, 
 but none ever held and no vote taken, are void, because of want of power 
 to issue them — void in the hands of all persons; but they may be validated 
 by the legislature. Steines «. Franklin County, 48 Mo. 167, 1871. Warner, 
 J., in this case reviews the prior adjudications of the United States Supreme 
 Court and of the Supreme Court of the State of Missouri, and limits the 
 language used by the judges to the facts before them, and distinguishes 
 between the case of irregularities in an election and no election whatever. 
 See also Carpenter v. Inhabitants of Lathrop, Mo. Sup. Court, 1873, not 
 yet reported. 
 
 ' Moran v. Miami Connty, 2 Black, 733, 734, 1863. Referring to Knox 
 County «. Aspinwall, the court observe that the main defence was, that the 
 commissioners of the county had no power to execute the bonds, and hence 
 they were not binding upon the county; but, says the Supreme Court of the 
 United States, jjar- Wwyne, J., in Moran «. Miami County, xwpra, "our an- 
 swer and judgment was, that the bonds on their face import a compliance 
 with the law under which they were issued ; and that the purchasers of 
 them were not bound to look further for evidence of a compliance with the 
 conditions annexed to the grant of power to issue them." * * * 
 
 " We think and adjudge that the recitals in the bonds are conclusive, con- 
 etituting an estoppel in pais upon the defendants in this suit." (3 Black, 
 733, 734, 733.) As to estoppel in such cases: Supervisors v. Schencfc, 5 
 Wall. 773, 1866 ; Rogers v. Burlington, 3 Wall. 654 ; Cincinnati a. Morgan, 
 Jb. 375; Mercer County «. Hacket, 1 li. 83; Meyer «. Muscatine, 11. 885, 
 893, per Swayne, J.; Bissell v. Jeflfersonville, 34 How. 387; Gelpcke e. 
 Dubuque, 1 Wall. 175, 303; Pendleton Co. v. Amy, 13 Wall. 397, 1871; St. 
 Joseph Township s. Rogers, Deer. Term, 1873; 8. C, 7 Albany Law Joum., 
 364. In the case last cited it was insisted that the bonds were invalid for 
 want of the required vote. One of the answers of the court to this objection 
 was that " the act of the legislature made it the duty of the supervisor who 
 
512 MUOTCIPAL COEPORATIONS. [Ch. XIV. 
 
 in some of the opinions to the effect that where the power 
 exists under any circumstances in the corporation to issue 
 negotiable securities, the hona fide holder has the right to 
 presume that they were duly issued, yet when the fads of 
 the cases are considered in which such language is used, we 
 are unable, after a careful review of the decisions of the 
 Supreme Court, to say that they lay down the doctrine that 
 merely by recital in the bonds, the corporation will, under 
 all circumstances, in favor of an inftocent holder, be estopped 
 from showing that in point of fact no election whatever was 
 holdeu, or that any other condition precedent to the exercise 
 of the power has not been complied with. If upon a true 
 construction of the legislative enactment, conferring the 
 the authority, the corporation or certain officers, or a given 
 body or tribunal, are invested with po^er to decide whether* 
 the condition precedent has been complied with, theq it may 
 well be that their recital of their determination of a matter 
 in pais which they are authorized to decide, will, in favor of 
 the bond holder for value, bind the corporation ; and to this 
 extent, and no further, as it seems to us, have the decisions 
 of the Supreme Court gone, when critically viewed, upon 
 the point of estoppel by mere recital. 
 
 % 419. A correct view of this subject would seem to be 
 this : Officers are the agents of the corporate body ; and 
 the ordinary rules and principles of the law of agency are 
 applicable to their acts. Their unauthorized acts are not 
 binding upon the corporate body of which they are the 
 public agents. Ordinarily, theii- unauthorized representa- 
 tion that they have power to do an act is not bindiug upon 
 
 executed the bonds to determine the question whether an election was held 
 and whether a majority of the votes cast were in favor of the subscription, 
 and inasmuch as he passed upon that question and subscribed for the stock 
 and subsequently executed and delivered the bonds, it was clearly too late 
 to question their validity where it appears, as in this case, that they are in 
 the hands of an innocent holder." 
 
 Estoppel to set up irregularities in issue of bonds by reason of the subse- 
 quent paymenf of interest. Supervisors v. Schenck, 5 Wall. 772. Compare 
 Marsh v. Fulton Co., 10 Wall. 676. 
 
 Estoppel by retaining proceeds of bonds. Pendleton County ®. Amy 13 
 Wall. 297, 1871. 
 
Ch. XIV.] CONTEACTS. 513 
 
 the corporation ; tliat is, the question is as to their power, 
 in fact and in law, not what they have represented it to be. 
 The only exception to this rule in addition to the one above 
 suggested, to wit, where it is the sole province of the officers 
 who issued the bonds to decide whether conditions prece- 
 dent have been complied with, is where both parties have not 
 equal means of knowledge as to the extent and scope of 
 their powers, and where the particular character of their 
 commission and authority is, from its natue and circum- 
 stances, peculiarly known to the officer or agent ; in which 
 case the principal will, or may be bound by the false rep- 
 resentations of the agent respecting his authority and its 
 extent and scope ; but where the authority to act is solely 
 conferred by statute, which, in effect, is the letter of attor- 
 ney of the officer, all persons must, at their peril, see that 
 the act of the agent on which he relies is within the power 
 under which the agent acts ; and this doctrine is recognized 
 by the Supreme Court of the United States in some of its 
 judgments.' Accordingly, bonds issued in violation of an 
 express statute or constitution are void, though in the hands 
 of innocent holders, for value." 
 
 § 420. So in a sabsequent case, similar in character, 
 the common council of a city were, by virtue of various 
 statutes, authorized to subscribe for stock in a railroad 
 company, and to issue bonds in payment therefor on the 
 petition of tTiree fourths of the legal voters, of the dty. 
 Before the issue of the bonds, the council decided that 
 three-fourths of the citizens had petitioned, and the bonds 
 
 • The Floyd Acceptances, 7 Wall. 666, 1868; Marsh v.. Fulton County, 
 10 "Wall. 676, 1870. See, also, Clark ». Des Moines, 19 Iowa, 199, aiO, 
 1865 ; TreadweU «. Commissioners, 11 Ohio St. 183, 1860, revie-wing and 
 criticising Knox County v. Aspinwall, 31 How. 539. See, also, Gould «. 
 Sterling (action on bonds), 23 N. T. 464; S. C, 1 Am. Law Reg. (N. S.) 
 290, and note of Prof. Dwight; Starin v. Gtenoa, 23 N. Y. 452; People », 
 Mead, 36 N. Y. 234. United States ». City Bank of Columbus, 31 How. 
 356, 1858, is a very striking illustration of the general principle that a cor- 
 porate officer cannot bind the corporation by his unauthorized acts or repre- 
 sentations concerning the authority of himself or others. De Voss ». Rich- 
 mond, 7 Am. Law Reg. (N. S.) 589; S. C, 18 Gratt. (Va.) 339, 1868. 
 
 ' Aspinwall v. County of Baviess, 33 How. 364 ; Marsh v. Fulton County, 
 nmra. 
 
 33 
 
514 MUNICIPAL CORPOEATIONS. [Ch. XTV. 
 
 themselves thus recited. The Supreme Court of the United 
 States held that the council was the tribunal to decide 
 whether the requisite number had petitioned ; that it wa3 
 contemplated that tMs question, which was one of fact, 
 should be ascertained and conclusively settled prior to the 
 issue of the bonds ; and that when sued upon the bonds by 
 innocent holders for value, parol testimony was inadmissible 
 to show that the petitioners did i^t constitute three^fourths 
 of the legal voters of the city." 
 
 ' Bissell v. JeflFersonville, 34 How. (U. S.) 387, 1860, approving Knox 
 County V. Aspinwall, 21 How. 539 ; S. P. Railroad Company «. Evansville, 
 15 Ind. 395, 1860. This is clearly right, for the reason that the council 
 were the body to decide the preliminary fact, and because, also, according 
 to the rule before stated, the fact was one not of a nature to be ascertained 
 by purchasers in the market to whom the bonds were designed to be sold. 
 
 Asto pro(xeding preU/mina/ry to issuing of ionde : Ante, sec. 108; Com- 
 missioners®. Nichols, 14 Ohio St. 360; Atchison v. Butcher, 8 Kansas, 304, 
 1865 ; Mercer County v. Hacket, 1 Wall. 83 ; Eogers «. Burligton, 3 Z 6. 654 ; . 
 Moran ». Miami Co. 2 Black, 723; Flagg «. Palmyra, 33 Mo. 440; Common- 
 wealth t. Commissioners, &c., 37 Pa."^ St. 337 ; compare, Marsh v. Fulton 
 County, 10 Wall. 676, 1870; Treadwell v. Commissioners, 11 Ohio St. 183, 
 1860. Post, sec. 423. Pendleton County v. Amy, 18 Wall. 397 ; City of 
 Lexington v. Butler, 14 Wall. 384 ; Joseph Township b. Eogers, December 
 Term, 1872; S. C, 7 Albany Law Journal, 364; Grand Chute s. Winegar, 
 S Wall. 572, 1872; S. C, 5 Chicago Legal News, 837. 
 
 A city was authorized to take stock in a railroad company " on the peti- 
 tion of two-thirds of the citizens, who are freeholders," &c. Bonds of the 
 city were duly issued, signed by the proper officers and attested by the seal 
 of the city, and on their face recited that they were issued by virtue of an 
 ordinance of the city making the subscription. The minutes of the city 
 council simply stated that "the freeholders of the city, toifA great unanimity, 
 had petitioned," &c. It was held that the city council were the proper 
 judges whether or not the required number had petitioned, and that the city, 
 as against bona fide holders for value, was " concluded " by the ordinance 
 "as to any irregularities that may have existed in carrying into execution 
 the power granted to subscribe the stock and issue the bonds.'' Van 
 Hostrup «. Madison City, 1 Wall. (U. S.) 291, 1863; S. P. Meyer a. Mus- 
 catine (where charter required ' ' a majority of two-thirds of the votes 
 given") 11. 384, 393; Auroras. West, 32 Ind. 88, 1864; cmitn-a. People v. 
 Mead, 36 N. Y. 224. 
 
 Where the act authorizing a municipality to issue bonds was not to take 
 effect until " approved by two-thirds of the electors present at a city meet- 
 ing held for that purpose, and a copy of its doings lodged in the office of the 
 secretary of state ,•" honajide purchasers of such bonds are not bound to look 
 beyond the, certificate thus lodged, and aie not affected by the action of the 
 
ch. xiv.] contracts. 515 
 
 § 421. In another case,' the action was upon coupons 
 payable to bearer belonging to negotiable bonds issaed by 
 a county in payment of stock subscribed in a railroad com- 
 pany. By an act of assembly, the county commissioners 
 were authorized to subscribe the stock and issue the, bonds 
 only upon the following "restrictions, limitations, and con- 
 ditions, and in no other manner or way whatever :" 
 1. " 4/"fer, and not lefore, the amount of such subscription 
 shall have been designated, advised, and recommended by 
 a grand jury of the county." 3. Said "bonds shall, in no 
 case, be sold by the railroad company less than par.'''' 3. 
 That the acceptance of this act shall be deemed the accept- 
 ance of another act fixing the gauges of railroads in the 
 county of Erie. The plaintiff was a hona fide holder, for 
 value, of a number of the bonds issued by the county. To 
 defeat a recovery, the county on the trial offered to show, 
 not that no recommendation by a grand jury was ever 
 made, but that no such recommendation was made as the act 
 
 city, refusing at prior meetings to approve the act. Society for Savings v. 
 New London, 29 Conn. 174, 1860. 
 
 VrauA in the election authorizing the subscription must be set up before 
 rights have accrued. Butler v. Dunham, 37 III. 474; People o.. Supervisors, 
 37 Cal. 655. Further as to the construction of f ewers to aid in the Imlding 
 ofrmt/iBcys, see ante, chap. VI. ; sec. 104 et 8eq. 
 
 ' Mercer County v. Eacket, 1 Wall. 83, 1863. This case, and the case 
 of "Woods ®. Lawrence County, 1 Black, 386, are cited by Mr. Justice 
 Hunt in the recent case of Grand ®. Chute v. Winegar, 15 Wall. 573, 
 1873; 8. C, 5 Chicago Legal News, 337. The learned Justice says: "The 
 sameprinciples were announced in Gelpcke «. The City of Dubuque, 1 Wall. 
 175, and in Meyer ®. The City of Muscatine, 1 J>. 384. In the latter case the 
 court said that if the legal authority was sufBciently comprehensive, a lona 
 ■Me holder for value has a right to presume that all precedent requirements 
 have been complied with. By the act of February 10, 1854, the legislature 
 of Wisconsin authorized the supervisors of the town of Grand Chute to 
 make a plank road subscription to the amount of ten thousand dollars. 
 The bonds in question were signed by the chairman of the board of super- 
 visors of that town, and recited that the subscription had been made by 
 the supervisors of the town, and that these bonds were issued in pursuance 
 thereof for the purpose of carrying out the provisions of that act. The 
 plaintiff was the Ixmafide holder for value of the bonds in suit, tod his title 
 accrued before their maturity. The cases cited are an answer to the numer- 
 ous, offers to show want of compliance with the forms of law, or to show 
 fraud in their own agents." 
 
616 MUNICIPAL COKPOEATIONS. [Ch. XIV. 
 
 required. The following was the recommendation: The 
 grand jury " would recommend (omitting the words 'desig- 
 nate and advise') the commissioners of Mercer county to 
 subscribe an amount not exceeding $150,000," — but not 
 otherwise designating the amount. The bonds referred on 
 their face to the act of assembly and its date which author- 
 ized their issue, and recited that they were issued in 
 pursuance thereof. This was regar(Jed by the court not as 
 an offer to show " that no law exists to authorize their issue, 
 but as one to show that the recitals in the bonds are not 
 true, and to show that they were not made ' in pursuance 
 of the acts of assembly ' authorizing them ;" and following 
 Knox County «. Aspinwall,' it was adjudged that the 
 matters thus offered to be shown constituted no defence 
 against a bona flde holder, on the principle that " where 
 bonds on their face import a compliance with the law under 
 which they were issued, the purchaser is not bound to look 
 further." And following Woods v. Lawrence County,' 
 it was also ruled that it was no defence against such a 
 holder, that the bonds were sold by the raUroad company 
 less than par, they being negotiable and the plaintiff inno- 
 cent. And it was also decided that the acceptance by the 
 railroad company of the bonds authorized by the act, 
 operated per se as an acceptance of the guage law. 
 
 § 422. In aaother case, authority to a city "to take 
 
 ' Knox County ». Aspinwall, 21 How. 539. 
 
 ' Woods «. Lawrence County, 1 Black, 386. In Woods ». Lawrence 
 County, just cited, it was also held that where the statute requires the 
 grand jury to fix the amount of a subscription to railroad stock, and to ap- 
 prove of it, and upon their report being filed empowers commissioners to 
 carry the same into effect by making its subscription in the name of the 
 county, and if these things be done agreeably to the law, the county can 
 not afterwards deny its obligation to pay the amount subscribed. In a suit 
 brought to recover the arrears of interest on such bonds, it is not necessary 
 for the holder to show that the grand jury fixed the manner and terms of 
 payipg for the stock ; nor is it a defense for the county to show that the 
 grand jury omitted to do so. It is enough that the manner and terms of 
 payment were agreed upon between the company and the commissioners. 
 This case, among others, was cited and approved in Grand Chute v. Wine- 
 gar, 15 Wall. 572, 1872; 8. 0., 5 Chicago Legal News, 337. 
 
• 
 
 Oh. XIV.] CONTRACTS. 517 
 
 stock in any chartered company for making* a road, or 
 roads, to the said city," was held, in favor of a hona fide 
 purchaser of its bonds, to authorize it to subscribe to a 
 railroad which, by the terms of its charter, and in fact, did 
 not terminate at said city, but whose nearest terminus was 
 forty-six miles distant, it appearing that there was, at the 
 timtf of said subscription, another railroad leading from that 
 terminus to the city.' Authority was given by the legisla- 
 ture to the city of Milwaukee to issue bonds in aid of a 
 railroad company specially named, "and any other railroad 
 company duly incorporated and organized for the purpose 
 of constructing railroads leading from the city of Mil- 
 waukee," &c., and it was held, such having been the con- 
 struction put upon it by the city authorities at the time, 
 that the power to issue bonds was not confined to companies 
 then in existence, but extended to companies afterwards 
 created.' 
 
 § 422a. In another case,' the city was held liable upon 
 bonds issued to a railway company under the following cir- 
 cumstances, viz. : the legislature authorized the city to sub- 
 scribe on the condition of a majority vote ; the city em- 
 bodied three conditions in the proposition submitted to the 
 
 ' Van Hostrup «. Madison City, 1 Wall. 291. 1863. See Aurora v. West, 
 9 Ind. 74; S. C, 22 Ind. 88, 96, 503. The decision in Van Hostrup v. 
 Madison City was undoubtedly influenced by the natural desire to protect 
 the holders of the bonds. Doubts cannot but be entertained that the 
 Columbus and Shelby road, distant and between different points, was a 
 road leading to Madison. See remarks of Nelson, 3. 
 
 ' James & Taylor v. Milwaukee, U. S. Supreme Court, December Term, 
 1872. 
 
 In Lynde v. Winnebago County, U. S. Supreme Court, December Term, 
 1872, a special submission, under the. laws of Iowa, to a popular vote, was 
 construed to give the requisite authority to issue the bonds of the county to 
 raise money to build a court house. The case also holds that it was com- 
 petent for the proper county official (the county judge) to visit New York 
 for purposes connected with the disposition of the bonds, and while there, 
 and out of Ms jiirisdietion, to issue and seal new lands with a new seal procured 
 at the time, in exchange for bondi already issuedpljut not yet put on the 
 market, and it was so held although the statute of the state provided that in 
 the case of the aisenee of that officer the county clerk should take his place. 
 
 » City of Lexington v. Butler, 14 Wall. 282, 1871. 
 
518 MUNICIPAL CORPORATIONa. [Ch. XIY. 
 
 voters, one 'of wMeli was that $1,000,000 should be sub- 
 scribed by other parties ; the vote carried ; other parties 
 did not subscribe the $1,000,000 ; the city refused to sub- 
 scribe and issue bonds, but was compelled to do so by a 
 mandamus of an inferior court, whose judgment was after- 
 wards reversed by the Court of Appeals of the state, which 
 held that the city had no authority to take the stock or issue 
 the bonds untU the $1,000,000 had been subscribed by other 
 parties. Meanwhile, however, bonds were issued by the 
 city, bearing its seal and signed by its mayor and clerk, re- 
 citing that they were duly issued under a specified act of 
 the general assembly. 
 
 The Supreme Court of the United States held that a hona 
 fide holder for value of these bonds, who had no actual 
 notice of the facts relied on for a defence, could recover 
 thereon. Mr. Justice Glifford, delivering the opinion of 
 the court, makes use of this language in stating the ground 
 of the judgment : " Admitted, as it is, that the corporation 
 defendants possessed the power to subscribe for the stock 
 and issue the bonds, it is clear thattthe plaintiff is entitled 
 to recover upon the merits, as the repeated decisions of this 
 court have established the rule that when a corporation has 
 power under any circumstances to issue negotiable securities, 
 the honafide holder has a right to presume that they were 
 issued under the circumstances which give the requisite 
 authority, and that they are no more liable to be impeached 
 in the hands of such a holder than any other commercial 
 paper." By the expression that it is admitted that the city 
 " possessed the power to subscribe for the stock and to issue 
 the bonds," reference is undoubtedly made to the act of the 
 legislature which gave this power on condition of a ma- 
 jority vote, and possibly to the fact that it was admitted in 
 the plea that the vote was cast in favor of the subscription, 
 for otherwise it seems to have been denied that the power 
 existed ; and that it did not exist as between the city and the 
 railroad corporation was decided by the Court of Appeals 
 of the state. The substance of the decision of the United 
 States Supreme fourt in this case would, seem to be that a 
 bona fide purchaser of the bonds had a right to presume that 
 the condition annexed by the city as to the $1,000,000 of 
 other subscriptions had been eouiplied with, and thus viewed 
 
Oh. XIV.] CONTRACTS. 619 
 
 the judgment of the court rests upon grounds whose sound- 
 ness cannot admit of question. It is not an authority upon 
 its essential facts in favor of the proposition that if the 
 bonds had been issued without any vote, or attempt at a 
 vote, they would have been binding in the absence of estop- 
 pel other than by recitals or other ground of liability. 
 
 § 422&. In another case,' the authority to subscribe to 
 the stock of the company was given on condition that th^ 
 county should so vote \)y a majority of real estate holders 
 residing therein. A subscription was made in 1853, and a 
 certificate of stock issued to the county, which was received 
 by it and still owned by it in 1869, when suit was brought. 
 It did not appear that the bonds contained any recitals that 
 conditions precedent had been complied with, or that the 
 county had subsequently levied taxes to pay interest on the 
 bonds. The county set up- as a defence that there was no 
 power to issue the bonds, because no vote of the people had 
 ever been taken. The plaintiff being a bona fide holder, it 
 was held, that he was entitled to recover, and that the 
 connty was estopped to set up that no vote was had. The 
 ground of the estoppel is thus stated by Mr. Justice Strong : 
 " The county received in exchange for the bonds a certificate 
 of the stock of the railroad company, which it held about 
 seventeen years before the present suit was brought, and 
 which it still holds. Having' exchanged the bonds for the 
 stock, we think the county cannot retain the proceeds of 
 the exchange, and assert against a purchaser of the bonds 
 for value, that though the legislature empowered it to make 
 them, and put them upon the market, upon certain con- 
 ditions, they were issued in disregard of the conditions." 
 
 It will be observed that if the court had been of opinion 
 that the bonds were enforceable in the hands of a holder foi 
 value though no election had in fact ever been held, the case 
 would naturally have been put upon that ground. 
 
 § 433. State Court Decisions Referred to. — The au- 
 thority to subscribe to the stock of a i-ailroad corporation 
 may be made conditional on certain previous steps being 
 
 ' Pendleton County v. Amy, 13 Wall. 297, 1871, 
 
620 MUNICIPAL COKPORATIONS. [Ch. XIV. 
 
 taken, as, for example, a prior authorization of the act by 
 a majority of the qualified voters of the municipality or 
 district to be affected, or a recommendation in its favor and 
 a designation of the amount by a grand jury, and the statute 
 may be so framed as to evince the legislative intention to be, 
 that no power to subscribe or issue bonds shall exist unless 
 this be done.' Thus, where the act authorizing a town to 
 borrow money to pay for the stock subscribed expressly 
 
 ' Mercer County v. Pittsburg & Erie Railroad Company, 27 Pa. St. 389, 
 1856 ; Mercer County v. Hacket, 1 Wall. 83* Aurora ». West, 33 Ind. 88, 
 503, 1864. Ante, sec. 104, et seq. City and County of St. Louis ». Alexan- 
 der, 33 Mo. 483, 1856. In this last case the provision requiring a submis- 
 sion of the question to the voters "before the subscription hereby 
 authorized shall be made," was held not merely directory, but mandatory. 
 Where the enabling act requires the amount to be specified, a vote not 
 specifying definitely the amount is, as to the immediate parties, void. State 
 e. Saline County, 45 Mo. 343, 1870; following, Mercer County v. Pittsburg, 
 &c. Railroad Company, 37 Pa. St. 389, and Starin v. Genoa, 37 N. T. 439 
 {aee-infra), and distinguishing Kiiox County v. Aspinwall, 31 How. 539, 
 and Flagg v. Palmyra, 33 Mo. 440. It should be remarked, however, that 
 the case above referred to (State v. Saline County, 45 Mo. 243, 1870) was 
 mandamus to compel the relator to deliver the bonds and to assess taxeg to 
 pay interest on bonds which had been issued, and the writ was denied because 
 the amount of bonds to be issued was not specified ; but subsequently, in The 
 State V. Saline County, 48 Mo. 390, 1871, it was held that such bonds, when 
 in the hands of an innocent holder for value, could be collected. What, in the 
 opinion of the Supreme Court of Missouri,' such a holder must show in the 
 way of compliance with precedent conditions, in order to recover, see the 
 recent case of Carpenter v. Inhabitants of Lathrop, 1873, not yet reported. 
 This case seems in spirit if not in effect to depart from the earlier cases in 
 that court upon this subject. See Railroad Company v. Platte County, 43 
 Mo. 171, where permissive words respecting an election to authorize sub- 
 scriptions were held to be imperative. In the Railroad Company ». Bu 
 chanan County, 39 Mo. 485, the words that the County Court, after an 
 affirmative vote by the people, "shall have power to subscribe,'' were held 
 to leave it discretionary with the court whether to subscribe or not. In the 
 case of the People ex rel. v. Tazewell County, 23 lU. 147, it was held, under 
 the general law of the state, that it was discretionary whether the county 
 should subscribe all or but a portion of the amount voted by the citizens, 
 and that county authorities might impose any proper conditions they might 
 choose. So where the legislature, without conditions, provides for submit- 
 ting the questwm of subscription to the voters of a township, the electors 
 have the power to vote to subscribe on any conditions they may see proper 
 to annex. People v. Butcher, 111. Sup. Court, May, 1871 ; see also People 
 V. Logan County, 45 111. 139 ; Veeder v. Lima, 19 Wis. 280, 1«65. Poet, 
 chap. XX. 
 
Ch. xiv.j conteacts. 521 
 
 provided that the officers thereof should ''have no power" 
 to do so until the written assent of two-thirds of the 
 resident tax- payers had been obtained, this was held a con- 
 dition precedent, without which the power did not exist." 
 
 "■ 8tariii«. Genoa, 23 N. Y. 439, 1861; Gould v. Sterling, U. 439, 456; 
 distinguished, on this point, from Bank of Rome v. Village of Rome, 19 N. 
 T. 20. Under the act it was held that the onus was on the plaintiflF to 
 show affirmatively the written assent of the requisite number of tax -payers ; 
 and the manner in which this must be shown is considered at length. But 
 see Bissell v. JefEersonTille, 24 How. 287 ; Knox County v. Aspinwall, ,21 
 How. 539; Mercer County ». Hacket, 1 Walt. 83, heretofore referred to. In 
 the People v. Mead, 36 !{. Y. 224, 1867, the decision in Starin v. Genoa, 
 and Gould r>. Sterling, above cited, was adhered to by the Court of Appeals, 
 though it was admitted that a contrary ruling as to the evidence of the 
 assent of the tax-payers, had been made by the Supreme Court of the 
 United States in favor of similar bonds in the hands of honajide holders, 
 and the case was distinguished from Murdock v. Aiken, and Ross v. Curtis, 
 31 N. Y. 606. Illustrating text, see Benson ®. Mayor, &c. of Albany, 24 
 Barb. 248. 
 
 Where the statute gives the power to issue bonds when a majority of 
 the tax-payers whose names appear upon the last preceding tax list or 
 assessment roll as owning a majority of the taxable property in the cor- 
 porate limits, make application to the county judge, by petition, &c., 
 such a petition is essential to to the jurisdiction of the county judge, 
 and the authority conferred by the act will, on certiorari, be required to 
 be exercised in strict conformity with the act in its letter and spirit. 
 The petition, it was held, must be that of the tax-payers, and it is 
 erroneous to count as petitioners those whose names are affixed, in their 
 absence, under previous verbal authority. In such proceedings, where there 
 are no provisions to the contrary, competent common law evidence of the 
 facts to be established should be produced before the county judge, and 
 this officer cannot act upon his personal knowledge. The People «. Smith, 
 45 N". Y: 772, 1871. 
 
 By its charter a city was authorized to take stock in railroads, ^^ provided, 
 that no stock shall be subscribed or taken by the co.mmon council, unless 
 upon the petition of two-thirds of the residents of said city, who are free- 
 holders of said city." It was held, in an action by the railroad company 
 against the city on the contract of subscription, that it was the duty of the 
 common council to determine whether the requisite number of the free- 
 /Dolders of the city had petitioned for the subsciiption, no other tribunal 
 having been provided for that purpose ; and having passed upon that ques- 
 tion their determination is conclusive, unless it may be set aside in some 
 direct proceeding for that purpose: Railroad Company v. Evansville, 15 
 Ind. 395, 1860 ; following and applying, Knox County ». Aspinwall, 31 How. 
 539; see, also, Bissell v. Jeffersonville, 24 How. 287, 1860; Mercer County 
 r. Hacket, 1 Wall. 83; compare, however, Veeder «. lima, 19 Wis. 380 
 
522 MUNICIPAL CORPORATIONS. [Ch. XIV. 
 
 § 424. So, under au act providing "that no subscrip- 
 tion or purchase of stock shall be made, or bonds issued, 
 by any county or city, creating a debt for the payment of 
 such subscription, unless a majority of the qualified voters 
 of the county or city shaU vote for the same," it was held 
 that bonds issued without an election, or where the election 
 was called by the wrong authority (as by the county court 
 instead of the county board of supervisors), are void, for 
 want of power to issue them, in Vhose hands soever they 
 may be, and are not validated by the levy of taxes and the 
 payment of interest thereon.' But this view was denied to 
 be sound by the Supreme Court of the United States, which 
 
 1865; Duanesburg «. Jenkins, 40 Barb. 574; Society, &c. «. New London, 
 29 Conn. 174 ; State v. Saline County, 45 Mo. 243, 1870. Subscriptions to 
 turnpike roads by the county judge, under acts of the legislature, were held 
 unauthorized and void, it being admitted that an amount of stock sufficient, 
 with the aid of county subscriptions, to complete each mile of road, had 
 not been taken by private subscription, as required by the statutes. Clay v. 
 County, 4 Bush (Ky.) 154. 
 
 ' Marshall County n. Cook, 38 111. 44, 1865, commenting on and distin- 
 guishing Mercer County ». Hacket, 1 Wall, 83, and Gelpcke v. Dubuque, 
 lb. 175. See, also, Shoemaker ». Goshen, 14 Ohio St. 569; Berliner v. 
 Waterloo, 14 Wis. 378 ; Veeder v. Lima, 19 Wis. 380, 1865 ; DunnoTan v. 
 Green, 57 111. 30; St. Joseph Township v. Rogers, U. S. Supreme Court, 
 December Term, 1873; S. P. as to ratification, Marsh ». Fulton County, 10 
 Wall. 676, 1870. The corporation is estopped — where the power to issue 
 existed — from setting up irregula/ritiea in the issue of the bonds, after re- 
 peated payments of interest thereon. Keithsburg v. Frick, 34 111. 405; 
 Railroad Company ». Marion County, 36 Mo. 394; Mercer County ■». Hub- 
 bard, 45 111. 139; Beloit r>. Morgan, 7 Wall. 619, 1868; Schenck ?>. Super- 
 visors, 5 WaU. 772, 1866 ; compare. Marsh o. Fulton County, 10 Wall. 676. 
 The municipal authorities, on manda/mut or other proceedings to compel 
 them to make subscription to the railroad company, may show that the 
 election was influenced by it and its employes, by bribery and corruption. 
 People «. Supervisors, 37 Gal. 655, 1865 ; Butler «. Dunham, 37 111. 474. 
 Fost, chap. XX. 
 
 Defective subscriptions may, of course, be ratified by the legislature in all 
 cases where the legislature could originally have conferred the power. 
 Keithsburg v. Frick, supra; Copes u. Charleston, 10 Rich. (So. Car.) Law, 
 491; McMillen ®. Boyles, 6 Iowa, 304; lb. 394; Gelpcke v. Dubuque, 1 
 Wall. 330 (note statute there construed) ; People v. Mitchell, 35 N. Y. 551 j 
 Thompson v. Lee County, 3 Wall. 327 ; Bass ». Columbus, 30 Geo. 845, 1860 ; 
 Bissell V. Jefifersonville, 34 How. 387, 1860 ; Campbell v. Kenosha, 5 Wall. 
 194, 1866 ; City v. Lamson, 9 Wall. 477, 1869. Ante, sees. 42-44. Steines a, 
 Franklin County, 48 Mo. 167, 1871 ; Knapp v. Grant, 27 Wis 147, 1870. 
 
Ch. XIV.] CONTEA0T8. 623 
 
 decided, tliat an innocent holder for value of such bonds 
 was entitled to recover upon them. The only defect in the 
 execution of the power was that the election was ordered by 
 the wrong authority, but the Supreme Court held that the 
 conduct of the county in retaining the stock, and in levying 
 taxes and paying interest for a series of years, estopped it 
 to set up as a defence that the bonds were illegal, and it 
 refused to follow the judgment of the Supreme Court of the 
 State, which had held the same issue of bonds to be void.' 
 
 § 425. In a case in Ohio, where the legislature author- 
 ized " the county commissioners of any county through or 
 in which a railroad might be located, to subscribe to the 
 capital stock of the said company," and, for the purpose of 
 paying therefor, " to borrow the necessary amount of 
 money, for which they shall issue their negotiable bonds," 
 &c., it was decided to be a defence to an action on the bonds 
 (though by a hona fide holder), that the railroad was 
 "never made or located through or in the county ;" that it 
 was " located and completed so as not to touch the county." 
 The defence was held good, upon the ground that the 
 authority to issue the bonds never existed." 
 
 § 426. It may be remarked, in conclusion, that this 
 general survey of the adjudications shows some difference 
 
 ' Supervisors of Marshall County «. Schenck, 6 Wall. 773, 1866. 
 
 ° Treadwell ». Commissioners, 11 Ohio St. 183, 1860, reviewing and 
 criticising, Aspinwall v. Commissioners of Knoz County, 21 How. (U. S.) 
 539, approved in Bissell «. JeflFersonville, 24 How. (U. S.) 387, 1860. In 
 Veeder ». Lima, 19 Wis. 380, 3 885, Treadwell ». Commissioners, and Gould 
 %. Sterling, before cited, are approved, and Aspinwall ». Commissioners, and 
 Moran b. Miami Cbunty, are criticised. Compare State, &c. «. Van Home, 
 7 Ohio St. 337; re-affirmed, State Trustees, &c., 8 Ohio St. 894, 401. The 
 two cases last cited (7 Ohio St. 337, 8 lb. 394), do not intend, probably, to 
 assert tb^ principle that the non-action of the tax-payers or inhabitants will 
 supply a want of power, in the just sense of that expression, in the trustees 
 to subscribe for the stock, or estop the quasi corporation from making the 
 defence of vM/ra tivres, if it existed. 
 
 Under a charter authorizing counties "through which " a given railroad 
 "may pass "to subscribe to its stock, it was held that a county between 
 the termini of the road might subscribe without waiting until the route was 
 located, or built within tie county. Woods «. Lawrence County, 1 Black, 
 886, 1861. 
 
524 MUNICIPAL CORPORATIONS. [Ch. XIV. 
 
 of judicial opinion (chiefly in cases involving the rights of 
 innocent holders of negotiable municipal securities) respect- 
 ing the evidence of the compliance with conditions pre- 
 cedent, and as to what will estop the municipality from 
 showing a non-compliance in fact with such conditions. 
 Yet, aside from these diflferences, the courts all agree that 
 such a corporation may successfully defend against the 
 bonds in whosesoever hands they may be, if its officers or 
 agents, who assumed to issue them, had no power to do so.' 
 The officers of such corporations possess no general power 
 to bind them, and have no authority except such as the 
 legislature confers. If the statute authorizes such a cor- 
 poration to issue its bonds onl'i/ when the measure is sanc- 
 tioned by a majority of the voters, bonds issued without 
 «uch a sanction (either in fact or according to the decision 
 of authorized officers or some authorized body or tribunal), 
 or when voted to one corporation and issued to another, are 
 void, into whosesoever hands they may come." This is the 
 sound and true rule of law on this subject, and the one 
 which has had the uniform approval of the state courts in 
 this country, and it has also received the high sanction of 
 the Supreme Court of the Uniied States.' The distinction, 
 however, must be remembered, between want of power to 
 issue the bonds and irregularities in the exercise of the 
 power, which are unavailing against the bona fide holder, 
 without notice of the irregularity. 
 
 ' Anie, chap. VI. sec. 108. The provisions of a railroad charter made 
 it lawful for certain counties to subscribe stock on a majority vote, and, on 
 such vote being had, made it the dutn/ of the county commissioners to sub- 
 scribe for stock and issue bonds therefor. Accordingly a vote was had 
 resulting in favor of a subscription; after the vote, but lefore the sub- 
 scription was actually made and the bonds issued, counties were prohibited 
 by law from subscribing for stock, unless paid for in cash. Held, that the 
 power to subscribe and the vote did not constitute a contract within the 
 meaning of the clause of the constitution making contracts inviolable; that 
 until the subscription was actually made the contract was unexecuted, and 
 that bonds thus issued were void, even in the hands of innocent holders for 
 value. Aspinwall «. County of Jo Daviess, 32 How. (U. S.) 364, 1859. Ante^ 
 sec. 43 ; Marsh v. Fulton County, 10 Wall. 676. 
 
 " Ante, chap. VI. sec. 108. 
 
 « Marsh «. Fulton County, 10 Wall. 676, 1870. Speaking of this sub- 
 ject, Mr. Justice Meld, in the case just cited, delivering the opinion of the 
 
Ch. XrV.] CONTRACTS. 625 
 
 Ccurt, says: "But it is earnestly contended that the plaintiff was an in- 
 nocent purchaser of the bonds, without notiee of their invalidity. If such 
 were the fact, we do not perceive how it could affect the liability of the 
 county of Fulton. This is not a case where the party executing the instru- 
 ments possessed a general capacity to contract, and where the instruments 
 might, for such reason, be taken without special inquiry into their validity. 
 It is a case where the power to contract never existed — where the instru- 
 ments might,, with equal authority, have been issued by any other citizen of 
 the county. It is a case, too, where the holder was bound to look to the 
 action of the ofHcers of the county and ascertain whether the law had been 
 so far followed by them as to justify the issue of the bonds. The authority 
 to contract must exist before any protection as innocent purchaser can be 
 claimed by the holder. This is the law even as respects commercial paper, 
 alleged to have been issued under a delegated authority, and is stated in 
 the case of Floyd Acceptances, 7 Wall. 666. In speaking of notes and bills 
 issued or accepted by an agent, acting under a general or special power, the 
 court says : ' In each case the person dealing with the agent, knowing that 
 he acts only by virtue of a delegated power, must, at his peril, see that the 
 paper on which he relies comes within the power under which the agent 
 acts. And this applies to every person who takes the paper afterwards ; 
 for it is to be kept in mind that the protection which commercial usage 
 throws around negotiable paper cannot be used to establish the authority 
 by which it was originally issued.'" And in this case the bonds of the 
 Bounty of Fulton, though negotiable in iform, and not disclosing or reciting 
 their purpose or origin, were held void, in the hands of lonafide holders, 
 for want of authority in the county to issue them — having been voted to 
 one corporation and delivered to (according to the view of the court) 
 another and distinct corporation. See Society, &c. v. New London, 29 
 Conn. 174; compare, People ». Mead, 36 N. T. 324; Adams v. Railroad 
 Company, 2 Coldw. (Tenn.) 645 ; Lynde v. Winnebago County, Sup. Ct. 
 U. S. 1873 ; Steines «. Franklin County, 48 Mo. 167, 1871 ; Super. ®. "Welder, 
 5 Chicago Legal News, 265. 
 
 Defences grounded on corporate neglect, or technical in their nature, are 
 not favored when the bonds are in innocent hands. Maddox ®. Graham, 2 
 Met. (Ky.) 56 ; Commonwealth v, Pittsburgh, 43 Pa. St. 391 ; San Antonio 
 V. Lane, 82 Texas, 405. The issue of the bonds proves that conditions 
 precedent, imposed by ordinance^ have been complied with or waived. 
 Commonwealth ». Pittsburgh, supra; Gilchrist v. Little Rock, 1 Dillon C. 
 C. 261. 
 
 The Supreme Court of the United States has veiy recently held, in an 
 action on negotiable bonds issued by a public corporation, that where the 
 defendant has shown/rawi? in the origin or inception of the instruments, this 
 will throw upon the holder the burden of showing that he gave value 
 for them before maturity. Smith v. Sac County, 11 Wall. 139, 1870, 
 Clifford, J., dissenting. 
 
 When special a/uthority to borrow money or to subscribe to the stock of a 
 railroad company will impUedly repeal existing charter limitations upon the 
 
520 MITNICIPAL CORPORA.TIONS. [Ch. XTV. 
 
 amount of indebtedness that may be contracted by a municipality, or upon 
 the rate of taxation. See Amey v. Allegheny City, 24 How. 364, 1860; 
 Butz V. Muscatine, 8 WalL 575, 1869. Ante, sec. 107, and cases there cited. 
 Mode of mfordng payment of municipal bonds. See chapter on J[/a7M?ai- 
 mus, post. The authority to levy and collect special taxes to pay bonds 
 authorized to be issued cannot be ■withdrawn or repealed bj the legislature 
 to the prejudice of the holders of such bonds. Von Hoffman v, Quinoy, 4 
 WalL 535, 1866; ante, chap. IV. ; pott, chap. XX. 
 
KP 5305 D57 1873 
 
 Author VoC" 
 
 Dillon, John Forrest 1 
 
 ''title The law of mimlclpal corp- capt 
 orati ons .