6' So 5" -X^ Cornell Universi-Ty Law Library THE GIFT OF .&^k^...l4lie^..^......^^^. t&^..^...>£.c^...^.d^.. Ti.t...%L...I%.JJ..f..^.. KF5305.A4M?r"'*»'''»V Library * ^election of Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019959547 DATE DUE INTtR LIBRARY I -OAN NY SILL GAYLORD PRINTED IN U.5. A. A SELECTION OF CASES ON MUNICIPAL OR PUBLIC CORPORATIONS A SELECTION OF CASES ON MUNICIPAL OR PUBLIC CORPORATIONS JOHN E. MACY, LL.M. PHOFESSOE OF LAW, BOSTON UNIVERSITY LA,W SCHOOL BO STON LITTLE, BEOWN, AND COMPANY 1911 ^g/73 Copyright^ 1911, By Little, Brown, and Company. S. J. Pabehill & Co., Boston, U.S PREFACE From the profusion of legal agencies which has come to exist, and the increase in their activities, and especially from the contest over their constitutional position, a body of case-law has developed of an extent scarcely dreamed of by those who are not in close touch with the sub- ject, and which is of great importance to the student. This work was undertaken about seven years ago as an endeavor to fill, in some measure, the urgent need for a book of cases upon the subject. In research, an endeavor has been made to read or consult all the reported decisions on the topics treated; and the vastness of the great maze of authorities, as well as the scarcity of good student's material among them, is almost beyond belief. Over three hundred and eighty cases were read or examined in making up the simple little section, consist- ing of four cases, on the establishment of a public easement (Ch. IV, § 1). The list of cases and the arrangement, as they finally here appear, have been gradually evolved during the last several years, from lists used and experimented with in the author's classes at Boston University Law School. A number of the cases which have been inserted were previously used, it will be found, in Judge Smith's col- lection of cases on Selected Topics in the Law of Municipal Corpora- tions, which, I believe, is the only previous collection of cases on the subject; but this is due, not to any lack of research by the author, but to the nature of those cases as leading and eminent decisions which must necessarily be included in any case-book on the subject. In the choosing of cases, those have been selected which seemed to present, in short sequences where possible, the most fundamental and basical principles. In this branch of the law — more it seems than in any other — there is danger of the student's being left unable to com- prehend the question involved in an important case because of the lack of a view-point from which to grasp it, which could have been shown to him by the use of some simple case (perhaps to the teacher seeming too simple) supplying the original and most elementary prob- lem on the principle concerned. An abridgment has been made of the opinions of judges where it has seemed advisable to cut out extraneous questions and to concen- trate the discussion upon the principle to be brought out. A great difiiculty in the way of the student in reading the original reports in "VI PEEFACE governmental law is the confusing inconsistencies in the dicta and re- marks of the various judges, and in their use of terms. An attempt has here been made to avoid using these inconsistent writings. In abridging the facts of the cases, an effort has been made to avoid the most frequent criticism of case-books — namely, that they state the facts of cases in such general and meager terms as to deprive them of their greatest value to the student. The paramount advantages from case reading seem to be gained from the study and use of the facts of the cases in nearly their original concreteness. The student is thereby trained in analyzing practical situations for the purpose of extracting correctly the general legal problem involved; he is given, facts for discussion so graphic that they may be impressed upon his mind and be always recollected in connection with the principle which they illustrate; he is supplied with material for observation from which he cannot very well fail to gather invaluable knowledge of the ways, dealings, and proceedings of the courts and of men and functionaries in general. The facts of the cases are as essential at least as the opinions of the courts; they are much more important in class-room discussions. By this it is not intended to advocate encoiu-aging students to examine and remember a case simply for itself, as an isolated problem, having no value except for the mental gymnastics of reasoning about it; for undoubtedly decisions should be discussed and used principally with a view to legal generalization and the formulation or induction of prin- ciple; and it is the principle which the student should be taught to get, by extracting it accurately from the cases. In the division of the subject, it has been thought best to avoid any classification based upon such confusing, if not questionable, terms as "public and private capacities," "governmental," "quasi govern- mental," "corporate," "business," "powers," etc.; and the arrange- ment made has been adopted with the intention of following the book -with a text-book which can be used in connection with it. The characters placed against the titles of cases are to signify changes made in preparing them. An asterisk (*) means that the statement of facts given has been made up or condensed either from the reporter's statement, from the judge's opinion, or from both. The dagger (f) means that the reporter's statement of facts has been omitted. The double dagger (J) means that the case, as given, is reported only with reference to the point for which it is to be used, and that other points have been excluded. The briefs and arguments of counsel have been omitted in almost aU the cases, without mention of them. John E. Mact. Boston, Mat 1, 1911. CONTENTS PAGE PREFACE V TABLE OF CASES xi CHAPTER I Definition and Natuke 1. Difference between Public and Private Corporations 1 2. Legal Status of Public Corporations 8 CHAPTER II Cbeation 1. Legislative Power to Create and Alter 17 2. Legislative Power to Invest with Governmental Authority ... 18 3. Form of Municipal Government: Creation by General Laws . . 25 CHAPTER III Powers 1. In General 32 2. Police Power 46 3. Taxation 62 4. Power to Adjust Claims and Pay Money 71 5. Power to Purchase Property 80 6. Power to Employ Property for Revenue 88 7. Power to Acquire Property otherwise than by Purchase .... 92 8. Power to Execute Trusts 93 VIU CONTENTS CHAPTER IV Public Easements PAGE 1. How EstabUshed KM: 2. Interest of a Municipality in a Public Way 113 3. Power to Obstruct or Alienate a Public Way 115 4. Public Rights as against the Fee-owner 130 5. The Abutter's Easement 138 6. Regulation of Fee-Owner's or Abutter's Uses 156 CHAPTER V Public Services 163 CHAPTER VI Limitations on Municipal Disceetion 1. Unreasonable or Abusive Action 188 2. Discrimination 208 3. Licenses and Permits 224 4. Conferring or Reserving Executive Discretion 228 5. Restricting the Future Exercise of Discretion 241 CHAPTER VII Municipal Bodies 1. Notice and Quorum 258 2. Prevailing Number 264 3. Elections 270 4. Voting Rights 274 5. Reconsideration: Adjourned Meetings 276 6. Executive Veto or Approval 280 CHAPTER VIII Contractual Liabilities 1. Officers as Agents 283 2. Corporate Consent 287 3. Ultra Vires and Irregular Contracts 304 4. Liability for Borrowed Money and on Commercial Paper .... 317 5. Liability for Interest 333 CONTENTS -^ IX CHAPTER IX Liability for Tobts PAGE 1. For the Torts of Officers and Employees, under the Rule Re- spondeat Superior 336 2. For Failure to Provide for the Safety of Employees 348 3. For Failure to Provide for the Safety of Persons Rightfully upon the Corporate Property 353 4. For a Positive Trespass on, Appropriation of, or Nuisance to, Private Property 357 5. For Permitting a Public Nuisance 368 6. For Failure to Furnish a PubUc Service or Protection 372 7. For Failure to Perform a Ministerial Duty Made Mandatory on the Corporation by Statute 376 8. For an Error in the Exercise of Corporate Discretion: Fault in the Plan of an Undertaking 396 9. For Results of an UUra Vires Undertaking 401 10. Distinction between Independent Officers and Corporate Officers or Agents 403 CHAPTER X Rights and Remedies of Cbeditobs . . .^. . 406 CHAPTER XI State Contbol or Municipal Afpaibs 1. Contracts 423 2. Pubhc Service Powers 431 3. Property: Right of Local Self-Government 435 4. Property and Debts as Affected by a Transfer of Territory . . . 478 INDEX 495 TABLE OF CASES Abendroth v. Manhattan Rail- way Co. Abbott, Attorney General v., Adams v. Brenan Akron, East Ohio Gas Co. v., Albany County, Laramie County v., Allen, Bernards v., Ashley v. Port Huron Attorney General v. Abbott Attorney General, Coyle v., Bailey v. Mayor, etc., of New York Baker, Chimine v., Ball, New Shoreham v., Ballon, Litchfield v., Baltimore, Darling v., Baltimore, Heiskell v., Baltimore v. O'Donnell Baltimore, Mayor, etc., of, v. Eschbach Baltimore, etc.. Railroad Co., State v., Baltimore, etc., Railroad Co., United States v., Bancroft v. Lynnfield Barnard v. Sangamon County Bartholomew County, Driftwood Valley Turnpike Co. v., Barrows v. Sycamore Bassett, Bates v.. Bates 0. Bassett Bayonne, Paret v., , Beckwith, Mt. Pleasant v., Berlin v. Gorham Bernards v. Allen Bettinger, Bufialo v., BienviSe Water Co., Mobile v., Board of Comm'rs, Driftwood Valley Turnpike Co. v., Board of Education, BrinkerhoS Board of Health of Yonkers, People v., Boerth v. Detroit City Gas Co. Boston, Burrill v., Boston, Lincoln v., Boston, Proprietors of Mt. Hope Cemetery v., Brenan, Adams v., 146 111 208 181 478 474 360 111 461 342 189 92 322 416 262 387 285 427 8 74 295 304 152 88 88 73 483 17 474 71 211 304 406 204 179 305 370 449 208 Brick Presbyterian Church v. Mayor, etc., of New York 241 Brinkerhofi v. Board of Education, etc., of New York 406 Brooklyn, Mills v., 372 Brooklyn, Speir v., 368 Brown, Chicago v., 188 Brown v. Galveston 469 Buffalo V. Bettinger 71 Bull, Quincy »., 173 BurriU V. Boston 305 Canton v. Nist 57 Cape May, Green v., 40 Cedar Rapids, etc.. Railroad Co., Chnton v., 445 Chicago V. Brown 188 Chicago V. Northwestern, etc.. Insurance Co. 172 Chimine v. Baker 189 Christensen ». Fremont 167 Cincinnati, Wheeler v., 375 Circleville v. Sohn 398 Clark, Denniston v., 130 Clark, New Orleans v., 423 Clajfton V. Henderson 401 CUnton V. Cedar Rapids, etc., Railroad Co. 445 Clute, People v., 270 Cohoes V. Delaware, etc., Canal Co. 104 Colo^a V. Eaves 326 Colwell V. Waterbury 348 Commonwealth, Gedge v., 105 Cornish, Sargent v., 98 Costello V. State 118 County of St. Charles v. Powell 15 Covington, Henderson v., 38 Coyle V. Attorney General 461 Coyle ti. Mclntire 461 Crowley, Soon Hing »., 214 Cruzen, Turner v., 308 Dargan v. Mayor, etc., of Mobile 336 Darling v. Mayor, etc., of Balti- more 416 Delaware, etc.. Canal Co., Co- hoes w.j 104 Demopolis v. Webb 113 DemopoUs, Webb v., 123 Denniston v. Clark 130 Xll TABLE OF CASES Des Moines, Eckerson »,, 25 Dee Moines, State v., 21 Detroit City Gas Co., Boerth v., 179 Dill V. Wareham 306 Drew, Pierce v., 131 Driftwood Valley Turnpike Co. V. Comm'rs 304 Drury v. Natick 101 Duggan V. Peabody 346 East Hartford v. Hartford Bridge Co. 431 Eastman v. Meredith 353 East Montpelier, Montpelier v., 490 East Ohio Gas Co. v. Akron 181 Eaves, Coloma v., 326 Eckerson v. Des Moines 25 El Paso V. Hoagland 128 Epping, Gove v., 76 Erwin v. Jersey City 280 Eschbach, Mayor, etc., of Balti- more v., 285 Eufala V. McNab 83 Evansville v. Miller 200 Fishkill, etc.. Plank Road Co., People v., 430 Flynn v. little Falls, etc., Co. 247 Fredericksburg, Standard Oil Co. v., 217 Fremont, Christensen v., 167 Friend v. Pittsburgh 333 Fulton, Lancaster Co. v., 78 Galveston, Brown v., 469 Garrett, Meriwether v., 419 Gedge v. Commonwealth 105 Gerhard v. Seekonk River Bridge Comm'rs 155 Girard's Ex'rs, Vidal v., 93 Goddard, Petitioner, 221 Gordon v. Thorp 414 Gorham, Berlin v., 17 Gove V. Epping 76 Governor, etc., v. Gridley 426 Grafton, Hunneman v., 278 Granger, Pope Manufacturing Co. v., 292 Granger t». Pulaski Co. 383 Green v. Cape May 40 Gridley, Governor »., 426 Gross V. Portsmouth 403 Haben, State v., 458 Hackettstown v. Swackhamer 317 Hagan, Mayor, etc., of Nash- ville v., 287 Ham V. Miller 67 Harrow, Phillips v., 95 Hayes v. Oshkosh 337 EeiskeU v. Mayor, etc., of Balti- more 262 Henderson, Clayton v., 401 Henderson v. Covington 38 Hines v. Lockport 385 Hoagland, El Paso v., 128 Hong Shen, Ex parte, 59 Hood V. Mayor, etc., of Lynn 41 Hunneman ». Grafton 278 Hurlbut, People v., 435 Hydes if. Joyes 230 Ingersoll, Lawrence v., 264 IngersoU, People v., 13 Ivins V. Trenton 156 Jacksonport v. Watson 36 Jellico, London, etc.. Land Co. v., 316 Jersey City, Erwin v., 280 Jersey City, Pray v., 381 Jersey City, State v. Mayor, etc., of, 176 Johnson v. Somerville 365 Johnston, Monroe »., 410 Joyes, Hydes v., 230 Judy V. Lashley 63 Justices, People v., 18 Kalamazoo, Sheldon v., 357 Kavanaugh v. Wausau 258 Lambertville, Stiles v., 276 Lancaster Co. v. Fulton 78 Lansing, Ostrander v., 352 Laramie County v. Albany County 478 Lashley, Judy v., S3 Lawrence v. Ingersoll 264 Lee, State v., 47 Le Roy v. Hurlbut 435 Lewis V. Providence 80 Lincoln v. Boston 370 Litchfield v. Ballou 322 Little Falls, etc., Co., Flynn v., 247 Lockport, Hines v., 385 London, etc.. Land Co. v. Jellico 316 Long Branch Comm'rs, State v., 224 LoweU, Spaulding v., 32 Lynnfield, Bancroft v., 74 Lynn, Hood v., 41 Lynn, Wormstead v., 297 Manhattan Railway Co., Aben- droth »., 146 Maryland v. Baltimore, etc.. Rail- road Co. 427 Mayor, etc., of Baltimore, Darl- ing v., 416 Mayor, etc., of Baltimore o. Esch- bach 285 Mayor, etc., of Baltimore, Heis- kell v., 262 Mayor, etc. of Baltimore v. O'- Donnell 387 TABLB OF CASES XIU Mayor, etc., of Des Moines, State v., 21 Mayor, etc., of Jersey City, Pray v., 381 Mayor, etc., of Jersey City, State v., 176 Mayor, etc., of Mobile, Dargan v., 336 Mayor, etc., of Monroe v. John- ston 410 Mayor, etc., of Nashville o. Hagan 287 Mayor, etc., of New York, Bailey v., 342 Mayor, etc., of New York, Brick PresbyterianliChurch v., 241 Mayor, etc., of New York, Mc- Donald v., 313 Mayor, etc., of New York, Morton v., 363 Mayor of St. Joseph, State v., 264 McDonald v. Mayor, etc., of New York 313 Mclntire, Coyle v., 461 McKim V. Philadelphia 390 McKim V. Odom 1 McNab, Eufala v., 83 Mears, Wood v., 158 Menasha, Schneider v., 85 Meredith, Eastman v., 353 Meriwether v. Garrett 419 Miles V. Worcester 361 Miller, Evansville v., 200 Miller, Ham v., 67 Mills V. Brooklyn 372 Minnesota Transfer Ry. Co., State v., 244 Mobile V. Bienville Water Co. 211 Mobile, Dargan v., 336 Monroe v. Johnston 410 MontpeUer v. East MontpeUer 490 Morton v. Mayor, etc., of New York 363 Mott, State v., 191 Mt. Hope Cemetery v. Boston 449 Mt. Pleasant v. Beckwith 483 Muhlenbrinck, Prosecutor, v. Long Branch -Comm'rs 224 Mimdy v. Water Comm'rs of Perth Amboy 189 Murphy, People v., 195 Nashville, Mayor, etc., of, v. " 287 101 283 423 412 62 92 342 241 313 Natick, Drury v., Neal, Sanborn v., New Orleans v. Clark New Orleans, Peterkin v., New Orleans, United States v., New Shoreham v. Ball New York, Bailey v.. New York, Brick Presbyterian Church v.. New York, McDonald v., New York, Morton »., New York Elevated Railroad, Sto^ v., Nist, Canton v., Northwestern, etc.. Insurance Co., Chicago v., Odom, McKim v., O'Donnell, Baltimore v., Oliver v. Worcester Opinion of the Justices in re Municipal Fuel Yards Oshkosh, Hayes v., Ostrander v. Lansing Ould V. Richmond Paret v. Bayonne Peabody, Duggan v., People V. Board of Health of Yonkers People V. Clute People V. Fishkill, etc., Plank Road Co. People V. Hurlbut People V. IngersoU People V. Justices of Court of Special Sessions People V. Murphy People V. Reed Perth Amboy, Mundy v. Water Comm'rs of, Peterkin v. New Orleans Peters v. St. Louis Philadelphia, Winpenny v., Philadelphia, McKim v., Phillips V. Harrow Phillips, State v., Pierce v. Drew Pittsburgh, Friend v., Pope Manufacturing Co. v. Granger Port Huron, Ashley v., Portsmouth, Gross v., Portsmouth, Rider I^, Powell, St. Charles County t».. Pray v. Mayor, etc., of Jersey City Presbjrterian Church v. Mayor, etc., of New York Proprietors of Mt. Hope Ceme- tery V. Boston Pulaski Co., Granger »., Quinoy v. Bull Redmond, Winchester v., Reed, People v., Regents of University of Mary- land V. Williams Richmond, Ould v., Rider v. Portsmouth Rochester, Wilcox v., 363 138 57 172 1 387 355 163 337 352 233 73 346 204 270 430 435 13 18 195 107 189 412 115 376 390 95 277 131 333 293 360 403 274 15 381 241 449 383 173 43 107 3 233 274 339 XIV TABLE OF CASES St. Charles County v. Powell St. Louis, Peters v., St. Paul, State, ex rel. v. Minne- sota Transfer Ry. Co. 244 St. Paul, Tate v., 396 Sanborn v. Neal 283 San Francisco, Zottman v., 300 Sargent v. Cornish 98 Schneider v. Menasha 85 Seekonk River Bridge Comm'rs, Gerhard v., 155 Sheldon v. Kalamazoo 357 Silkman v. Water Conun'rs 169 Smith, State v., 65 Smith, State v., 261 Sohn, Circleville v., 398 Somerville, Johnson v., 365 Soon Hing v. Crowley 214 Spaulding v. Lowell 32 Speir V. Brooklyn 368 Standard Oil Co. v. Fredericks- burg 217 State V. Baltimore, etc.. Railroad Co. 427 State, Costello v., 118 State V. Haben 458 State V. Long Branch Comm'rs 224 State V. Lee 47 State V. Mayor, etc., of Des Moines 21 State V. Mayor, etc., of Jersey City 176 State V. Mayor of St. Joseph 264 State V. Mott 191 State V. Tenant 235 State V. Minnesota Transfer Ry. Co. 244 State V. Phillips 277 State V. Smith 65 State V. Smith 261 Story V. New York Elevated Railroad Co. 138 Stiles V. LambertviUe 276 Swackhamer, Hackettstown v., 317 Sycamore, Barrows v., 152 Tate V. St. Paul 396 Tenant, State v., 235 Thorp, Gordon v., 414 Todd V. Troy 386 Trenton, Ivins v., 156 ' 15 Troy, Todd v., 115 Turner v. Cruzen United States v. Baltimore, etc., Railroad Co. University of Maryland v. Wil- liams United States v. New Orleans Valparaiso o. Valparaiso Water Co. Vandine, Petitioner Vidal V. Girard's Ex'rs Walla WaUa v. Walla Walla Water Co. Wareham, DiU v., Washington, Weightman v., Waterbury, Colwell v., Water Comm'rs of Perth Amboy, Mundy v., Water Comm'rs, Silkman v., Watson, Jacksonport v., Wausau, Kavanaugh v., Webb, Demopolis v., Webb V. Demopolis Weightman v. Washington West Point, Whiting v., Wheeler v. Cincinnati Whiting V. West Point Wilcox V. Rochester Williams, University of Maryland v., Wilson, In re Winchester v. Redmond Winpenny v. Philadelphia Wineburgh Advertising Co., People, ex rel. v. Murpny Wisconsin v. Haben Wood V. Mears Worcester, Miles v., Worcester, OUver v., Wormstead «.. Lynn 3S6 308 3 62 310 46 93 251 306 377 348 189 169 36 258 113 123 377 68 375 68 339 3 228 43 376 195 458 158 36i 353 297 Yonkers, Board of Health of, People v.^ 204 Yonkers, Silkman v. Water Com- m'rs of, 169 Zottman v.- San Francisco 300 A SELECTION OF CASES ON MUNICIPAL OE PUBLIC COKPORATIONS CHAPTER I Definition and Natxtre 1. Difference between Public and Private Corporations BLAND, CH*R, IN McKIM v. ODOM 3 Bland's Ch. {Md.) 417. 1829 The multitude of bodies politic, that have been created either by the government of the Province or of the Republic, most of which still subsist, may be considered, in reference to their objects, as belong- ing to one or other of three distinct classes. The first kind are such as relate merely to the public police; which, by assuming upon themselves some of the duties of the State, in a partial or detailed form, and having neither power nor property for the piu^joses of personal aggrandizement, can be considered in no other light than as the auxiliaries of the government of the Republic; and consequently, as the secondary and deputy trustees and servants of the people. The right to establish, alter, or abolish such corpora- tions, seems to be a principle evidently inherent in the very natiu-e of the institutions themselves; since all mere municipal regulations must, from the nature of things, be subject to the absolute control of the government. These institutions being, in their nature, the auxiliaries of the government in the great business of municipal rule, cannot have the least pretension to sustain their privileges, or their existence, upon anything like a contract between them and the government; because there can be no reciprocity of stipulation; and because their objects and duties are incompatible with everything of the nature of such a compact. The power of acquiring and holding property, although almost always given, is by no means a necessary incident to all corporations of this class; they may be established without any such capacity; as in the instance of the commissioners for emitting bills of credit. 1769, ch. 14, s. 6. The preservation of morals and the administration of justice are the chief ends for which government has been instituted; and infancy, insanity, infirmity, and helpless poverty have an un- 2 CASES ON MUNICIPAL OS PUBUC CORPOEATIONS [CHAP. T doubted claim upon the protecting care of the Republic. Montesq. Sp. Laws, b. 23, c. 29. Bodies politic of this class having these objects in view, are city corporations, 1708, ch. 7; 1796, ch. 68; Levy Courts, 1804, ch. 73; County schools of the Provincial or State government, 1696, ch. 17; 1723, ch. 19; public colleges, April, 1782, ch. 8; hos- pitals, 1797, ch. 102; 1816, ch. 156; trustees of the poor of the several counties, etc., 1768, ch. 29; 1785, ch. 15. The second class of corporations are such as have no concern what- ever with the duties of the Republic; nor are in any manner bound to perform any acts for its benefit; but whose only object is the per- sonal emolument of their members. . . . It is remarkable, that there is no instance of the creation of any body pohtic of this description under the Provincial government; but since the establishment of the Republic they have increased and multi- plied to a very large and still rapidly growing family. The examples of ^ this class of corporations are the insurance companies, April, 1787, ch. 20; the Free Mason societies, 1821, ch. 147; the banks, 1790, ch. 5; th& manufacturing companies, 1808, ch. 49; the library companies, etc., 1797, ch. 35. The third species of corporations partake, in many respects, of the natm-e of the first two classes; and are sure such as have a concern with some of the expensive duties of the State, the trouble and charge of which are undertaken and defrayed by them in consideration of a certain emolument allowed and secured to their members. In cases of this kind there are certainly many of the material features of a con- tract between the government and the corporation; there is mani- festly a quid pro quo. But this contract, if it be so, is, and of necessity must be, like all others to which a government or State is a party, one of imperfect obligation as regards the State; Vattel, Law of Nati(m» Prelim. § 17; and as such, subject to be dealt with by the government of the State as the public good may require, on making a just com- pensation for any private property which may be taken for a public use. No bodies politic of this description were ever created under the Provincial government; but since our independence, a great number of them have been called into existence; such as canal companies, November, 1783, ch. 23; bridge companies, 1795, ch. 62; turnpike road companies, etc., 1797, ch. 65. CHAP. l] REGENTS OF THE UNIVERSITY OF MARYLAND V. WILLIAMS 3 REGENTS OF THE UNIVERSITY OF MARYLAND V. WILLIAMS t QG.&J. (Md.) 365. 1838 Appeal from Baltimore County Com-t. Action of assumpsit on a count for money had and received to the plaintiffs' use. The plain- tiffs are a corporation, the governing body of the University of Mary- land, created by an act of the General Assembly of Maryland passed in 1812; the defendant is treasiu-er under an act passed in 1825 pur- porting to abolish the plaintiffs and to create in their stead a corpora- tion styled "Trustees of the University of Maryland." The plaintiffs seek to recover money in the hands of the defendant received and held by him for the purposes of the University. The plaintiffs excepted to rulings of the trial court admitting in evidence the Act of 1825, against the plaintiffs' objection that it was unconstitutional, and rejecting a prayer for instructions which raised the same question. The evidence showed the following: In 1812, an act was passed, "For founding an University in the City or Precincts of Baltimore." It authorized "The College of Medicine of Maryland" (a corporation chartered in 1807 for the promotion of medical knowledge), to establish the three other departments; namely, the faculty of divinity; the faculty of law, and the faculty of the arts and sciences; and declared "that the four faculties or colleges thus united shall be, and tbey are hereby, constituted an University, by the name and under the title of the ' University of Maryland.' " The members of the four faculties, and the !^rovost of the University, and their successors, were declared to be one corporation and body politic, to have continuance forever by the name and style of "Regents of the University of Maryland:" with capacity to acquire, enjoy and dispose of real and personal estate for the purposes and interests of the Uni- versity; the Regents were empowered to appoint the Provost, and each faculty was to appoint its own professors and lecturers. The act provided further " that the professors now appointed and authorized in the Colljege of Medicine of Maryland and their successors, shall constitute the faculty of physic; that the professor of theology, to- gether with six ordained ministers of any religious society or denomina- tion and their successors, shall form and constitute the faculty of divinity; that the professor of law, together with six qualified members of the bar, and their successors, shall form and constitute the faculty of law; and that the professors of the arts and sciences, together with three of the principals of any three academies or colleges of this State, and their successors, shall form and constitute the faculty of the arts and sciences." The Regents were authorized to make regulations for the govern- 4 CASES ON MUNICIPAL OK PUBLIC COBPOEATIONS [cHAP. I ment and discipline of the University, to vacate by certain proceed- ings the seat of the Provost of the University; to grant diplomas and certificates of admission to the medical profession, to confer degrees, to sue and be sued, to have a common and a privy seal. The Act of 1825 recognized the existence of the prior corporation and stated that the good government and discipline of the University required important alterations in the act of incorporation. It pur- ported to discontinue and abolish the board of Regents, and the mem- bers of its several faculties (declaring that the faculties should consist of professors alone), to appoint a number of persons by name to be known by "the corporate title of trustees of the University" of Mary- land; to invest'them with all the powers and privileges before belong- ing to the corporation of the regents, with power to elect officers and professors, and to make by-laws for the regulation and discipline of the institution; declared that the Governor of the State should be ex-offlcio president of the board of trustees; that all the pecuniary concerns of the University should be under the control and direction of the trustees; that all the rights of property then possessed by the regents should vest in the trustees; that vacancies occurring in the board of trustees should be filled up by the Executive of the State; and it professed to repeal all such parts of the act creating the corpora- tion of the Regents of the University, as were inconsistent therewith. Evans, Mayer, Martin, and Meredith, for the appellants. Nelson and jR. Johnson, for the appellees. Buchanan, C. J. [After holding that the Act of 1812 did not violate any vested right, because none was created by the prior acts, and proceeding to inquire whether the Act of 1825 was constitutional:] The next subject of inquiry is, whether the corporation of "The Regents of the University" [created by the Act of 1812] is a public or a private corporation; if at this day, that can be considered an open question. A public corporation is one that is created for political purposes, with political powers, to be exercised for purposes connected with the public good in the administration of civil government; an instrument of the government, subject to the control of the legislature, and its members officers of the government, for the administration or discharge of public duties, as the cases of cities, towns, etc. ; 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 corporation; and so of a hospital created and endowed by the government for general pur- poses of charity. The corporation of the University has none of the ch^aracteristics of a public corporation. It is not a municipal corporation. It was not created for political purposes, and is invested with no political powers. It is not an instrument of the government created for its own uses, nor are its members officers of the government, or subject to its control CHAP. l] EEGENTS OF THE UNIVEESITT OF MAHTLAND V. WILLIAMS 5 in the due management of its afifairs, and none of its property or funds belong to the government. The State was not the founder, in the sense of that term as applied to corporations. It was the creator only, by means of the act of incorporation, and may be called the incipient not the perficient founder. It gave to it in its creation the capacity to acquire and to hold property, but made to it no donation; and whatever property the corporation has, is its own, to be managed and disposed of by the Regents for the uses of the institution, in such manner as they may judge most promotive of its interests, and not for the uses of the government, nor in the exercise of any poHtical powers, but as the trustees merely for the University. It is said there have been sub- sequent endowments by the State. If it be so, that cannot affect the character of this corporation. If eleemosynary and private at first, no subsequent endowment of it by the State could change the char- acter, and make it public. But it nowhere appears that any such en- dowments have been made. Several Acts of Assembly were passed, authorizing money to be raised by lottery for the use of the University; and by the Act of 1821, ch. 88, certificates of five per cent stock of the State were authorized to be issued by the treasurer, to the amount of $30,000, to be appropriated to the payment of the debts of the insti- tution; the medical professors of the University being required to enter into bond for the annual payment of interest on that sum, which can scarcely be called endowments. The authority to raise money by lottery certainly was not; it was a mere privilege granted, which cost the State nothing; and the appropriation of the $30,000 to the liquidation of the debts of the institution, on the payment of interest by the professors of one of its faculties, assumes more properly the shape and character of a loan to a private corporation for its own private purposes, than of an endowment or appropriation of money for the uses or political piurposes of the government. . . . But it has been urged in argument at the bar, that whenever the end is public, the franchise granted to effect that end is also public. That here, the end was the preservation of life and health, which de- pend upon the skill of those who minister to the sick, etc., a public end in which the whole public have an interest, and therefore that this corporation is public. . . . It is not enough to say that the public has an interest in the skill and learning of physicians and surgeons. The pubhc has a deep in- terest in the dissemination of learning and useful knowledge, and so it has in the beneficial results to the community of insiu-ance, canal, railroad, and turnpike companies, etc. The uses or objects may, in a, certain sense, be called public; but the corporations as distinguished from the uses or objects are private. The objects for which almost if not all corporations are created are such as the government deems it expedient to promote, upon the sup- position that they will be beneficial to the public; and these expected 6 CASES ON MUNICIPAL OK PUBLIC COHPOKATIONS [cHAP. I benefits constitute the chief, and usually the only, consideration of the grants. The distinction is between the franchise granted, and the expected beneficial results to the community from the possession and exercise of the franchise, upon the performance of the implied condition of the grant to exert the rights acquired in a manner suited to the promo- tion of the objects proposed. The institution, the bank, canal, rail- road, college, etc., from the nature of its particular object, and the interest the pubUc has in that object, may, and commonly does, acquire in a popular sense the character of a public institution; but the cor- poration, the artificial being composed of natural persons for the management of the affairs of the institution, in contemplation of law, is private; as much so as the individuals composing it were before the act of incorporation imparted to them an artificial existence, with power to take and hold property in that particular form, and for par- ticular purposes; which is all the act of incorporation does, and that only because the particular objects can best be effected in that par- ticular form. But not therefore making the artificial being or cor- poration an instrument, nor the persons composing it members, of the civil government of the country. Supposing an association of private individuals had contributed funds in real or personal property, for the estabhshment and conduct of this very University (which, in legal understanding, would be a private charity), and had appointed professors, and constituted them governors and managers of the institution, and of the appropriated funds; the objects being the same as now, the promotion of religion, and the dissemination of scientific, literary, and medical knowledge, and the interests of the public in those objects the same; could the governors so appointed be considered public officers, or members of the civil government? and if not, why should the artificial being created by law, and composed of the same persons for the same pur- poses, thereby become a part of the civil government, and a public corporation? A private charity cannot, by a mere act of incorpora- tion, be made a pubHc one. In the language of Lord Hardwicke, " the charter of the crown cannot make a charity more or less public, but only more permanent than it would otherwise be," 2 'Atk. Rep. 88, and that is the settled law upon the subject. Again, "a charity may be public, though administered by a private corporation; and to hold a corporation to be public, because the charity was public, would be to confound the popular with the strictly legal sense of terms, and to jar with the whole current of decisions from the time of Lord Coke." 2 Kent's Com. 273, Public corporations are to be governed according to the laws of the land, and the government has the sole right, as trustee of the public interest, to inspect, regulate, control, and direct the corporation, its funds and franchises. That is of the essence of a public corporation. CHAP. l] REGENTS OP THE UNIVERSITY OF MARYLAND V. WILUAMS 7 But it has no such right in relation to eleemosynary corporations, or the management of their affairs. That belongs to the visitors alone, under the visitatorial power incident to such corporations. . . . I That a charter or act of [private] incorporation, when accepted, is a contract, is a proposition too self-evident and universally assented to, to be drawn in question, or to require the aid of argument or au- thority to support it. . . . The Act of 1812, then, incorporating the Regents of the University of Maryland, being by acceptance a contract between the State and the corporation, the organization and continuing existence of which have been recognized by various subsequent acts of the legislature, is it a contract protected by that clause of the Constitution of the United States, which declares that "no State shall pass any law im- pairing the obligation of contracts"? This question would seem to have been fully settled by the decisions in the cases already cited of Dartmouth College v. Woodward [4 Wheat. 518]; Allen v. McKeen [1 Sumner 276] and The Society, etc., v. New Haven Judgment reversed, and 'procedendo awarded} • In Head v. Curators of University of Missouri, 47 Mo. 220 (1871), an act had been passed terminating the offices in the university, and providing for a new election. In holding that the university was a public corporation, and that the act ■was constitutional, the court (Currier, J.) said: "Whether the university and its affairs are subject to the direction and control of the Legislature, depends upon its character as a corporation, whether public or private. If it is a private corporation, the Legislature has no control over its internal management. On the other hand, if it is a public corporation — a State institution — it is subject to the discretionary control of the law-making department of the State government. "The university is clearly a public institution, and not a private corporation. It ■was established by an act of the Legislature, which was passed February 11, 1839 (Sess. Acts 1838-9, 176). The act commits the government of the institution to a board of fifteen curators. The curators were not named in the act, but provision ■was made for their election by a joint vote of the senate and house of representatives. They were removable at the pleasure of the Legislature, and had no power to appoint their successors. (Sess. Acts 1838-9, 176, §§ 1-3.) "There are no named grantees in the act, and consequently no parties either to accept or reject the grant. In a word, the State entered into no compact with pri- vate parties. The State established an institution of its own, and provided for its control and government through its own agents and appointees. The act creating the institution, in its first section, declares that a 'university is hereby instituted in this State, the government whereof shall be vested in a board of curators.' The uni- versity is then (§ 2) declared a ' corporation and body politic ' and invested with cer- tain powers. These powers are given into the hands of a board which is made subject to the pleasure of the Legislature. This is not the way in which a private corporation is brought into being and endowed with corporate franchises. A private corpora- tion involves the idea of private parties and private rights. No such parties or rights were concerned in the institution of the University of the State of Missouri. By establishing the university the State created an agency of its own, through which it proposed to accomplish certain educational objects. In fine, it created a public cor- poration for educational purposes — a State university. (A. A. on Corp. §§ 31-36; 5 Stew. & Port. Ala. 17; University of North Carolina v. MauUsby, 8 Ired. 257; Bush V. Shipman, 4 Scam. 190.) "The Legislature by an act passed February 8, 1839 (Sess. Acts 1838-9, 184), ap- pointed a board of commissioners to locate the university, and receive grants of land, as also bids from certain named ' counties and from the citizens thereof for such sums of money' as might be offered to secure the location of the institution. Under this act, as the case shows, 'private citizens of Boone county subscribed the sum of $108,000; and Columbia College, by its board of trustees, subscribed the buildings and apparatus, valued at $10,000, to the building fund of said university.' It further appears that the university was located in Boone county, in 'consideration' of the above mentioned subscriptions. In other words, the parties named contributed a CASES ON MUNICIPAL OB PUBLIC COEPOKATIONS [CHAP. I 2. Legal Status of Public Corporations UNITED STATES v. BALTIMORE AND OHIO RAILROAD COMPANY * 17 WaUace (U. S.), 322. 1872 Eeroe to the Circuit Court for the District of Maryland. In 1854, the Legislature of Maryland gave to the city of Baltimore, •which desired to aid the Baltimore and Ohio Railroad Company in the construction of its road, authority to issue bonds to the extent of $5,000,000, payable in 1890; and to lend the proceeds to the railroad company after deducting ten per cent for a sinking fimd. The city issued its bonds accordingly, and the raiboad, to secure the payment of the bonds and interest on the money lent, gave a mortgage to the city on all its road, revenue, and franchises. The 122d section of the Internal Revenue Act of 1864, as amended by that of 1866, provided "that any railroad, canal, etc., company indebted for any money f or| jwhich bonds or other evidence of indebted- ness have been issued . . . upon which interest is stipulated to be paid . . . shall be subject to and pay a tax of 5 per centum on the amount of aU such interest . . . whenever and wherever the same shall be payable, and to whatsoever party or person the same may be pay- able. . . . And such companies are hereby authorized to deduct and withhold from all payments on account of any interest . . . due and payable, as aforesaid, the tax of 5 per centum. . . ." The United States claimed a tax of five per cent from the company, which they alleged the company was bound under the aforesaid act to withhold from the interest payable to the city and pay to the United States. The company refused to pay the five per cent to the govern- ment, on the ground that the tax was not a tax laid on it, the company, but one laid on the creditor, the city of Baltimore; and that because the city was a municipal corporation, its revenues could not be taxed by the Federal government. The United States brought this action against the company in assumpsit. The defendant pleaded the general issue, and judgment was given below for the defendant. The United States then brought this writ of error. Mr. G. H. Williams, Attorney-General, and Mr. S. F. Phillips, Solicitor- General, for the plaintiff in error. liberal/ bonus to secure the location of an existing State institution in their county. But these contributions to the building fund did not constitute the contributora founders of the university. Nor did the contributions alter the 'nature of the found- ation, or change the character of the corporation.' University, etc., v. MauUshy, ubi supra. Between this and the Dartmouth College case and the cases following that decision there is a broad distinction — namely, the difference that exists between a public institution of the State and a private corporation." CHAP. l] UNITEDl STATES V, BALTIMORE AND OHIO R. E. CO. 9 t Messrs. J. H. B. Latrobe and I. N. Steele, contra. Mr. Justice Hunt. [After holding that the tax involved in this case was a tax upon the creditor, and not one upon the corporation, which was merely made use of as a convenient means of collecting the tax.] The creditor here is the city of Baltimore, and the question then arises whether this tax can be collected from the revenues of that municipal corporation. There is no dispute about the general rules of law appHcable to this subject. The power of taxation by the Federal government upon the subjects and in the manner prescribed by the act we are considering, is undoubted. There are, however, certain departments which are excepted from the general power. The right of the States to admin- ister their own affairs through their legislative, executive, and judicial departments, in their own manner through their own agencies, is con- ceded by the uniform decisions of this court and by the practice of the Federal government from its organization. This carries with it an exemption of those agencies and instruments, from the taxing power of the Federal government. If they may be taxed lightly, they may be taxed heavily; if justly, oppressively. Their operation may be impeded and may be destroyed, if any interference is permitted. Hence the beginning of such taxation is not allowed on the one side, is not claimed on the other. In the "Compendiiun of Internal Revenue Law," by Davidge & Kimball (p. 505), it is said, " Congress niay not tax the revenues of a State," and also (p. 425), " A national bank is not liable under the in- ternal revenue laws to the tax upon dividends due a State on stock owned by the State." Again (p. 471), "The term corporation as used in the acts of Congress touching internal revenue does not include a State, consequently the income of the State of Georgia from the Western and Atlantic railroad, property owned, controlled, and managed by that State, has not been made by law a subject of taxation." Again: "The term person as used in §§ 9 and 44 does not include a State. The receipts or certificates issued by the State of Alabama are not subject to the tax of 10 per cent imposed by the Act of Con- gress of March 25th, 1867." 12 Opinions of the Attorneys-General, 176. The inquiry then arises, what is the natiu-e and character of muni- cipal corporations, and what is their connection with the government of the State. A work on corporations (A. & A. on Corp. § 16 e< seq.) says, that in- ferior and subordinate communities, imperia in imperio, such as cities and towns, . . . are allowed to assume to themselves some of the duties of the State in a partial or detailed form, but having neither property nor power for the purposes of personal aggrandizement, they can be considered in no other light than as auxiliaries of the govern- 10 CASES ON MUNICIPAL OB PUBLIC COEPOEATIONS [CHAP. I ment, and as the secondary deputies and trustees and servants of the people. . . . A mumcipal corporation like the city of Baltimore is a representa- tive iiot 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. ... 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 not subject to taxation. This proposition is very properly admitted by the counsel for the govern- ment. In their brief it is said, "We admit that municipal corporations, acting merely within the scope of their duties as such, are not to be included within general words imposing taxes upon persons or cor- porations." In support of this view is cited the proviso to the amend- ment in 1866, in these words: "Provided that it is the intent hereby to exempt from liability to taxation such State, county, town, or other municipal corporation, in the exercise only of functions strictly belonging to them in their ordinary governmental and municipal capacity." Assuming for the argument that this qualification is well made, let us look at the facts of the case before us. [His Honor here rehearsed the authorization by the legislature, and the other facts of the case.] That the State possessed the power to confer this authority upon the city, we see no reason to doubt. {Gelpcke v. Dvbuque, 1 Wall. 202; Rogers v. BurlingUm, 3 Wall. 664.) Was it exercised for the benefit of the municipality that is in the course of its municipal business or duties? In other words, was it acting in its capacity of an agent of the State, delegated to exercise certain powers for the benefit of the municipaUty called the city of Baltimore? Did it act as an auxiliary servant and trustee of the su- preme legislative power? The legislature and the authorities of the city of Baltimore decided that the investment of $5,000,000 in aid of the construction of a railroad, which should bring to that city the un- bounded harvests of the West, would be a measure for the benefit of the inhabitants of Baltimore and of the municipaKty. This vast business was a prize for which the States north of Maryland were contending. Should it endeavor by the expenditiu-e of this money or this credit to bring this vast business into its own State, and make its commercial metropolis great and prosperous, or should it refuse to incur hazard, allow other States to absorb this commerce, and Balti- more to fall into an inferior position? This was a question for the decision of the city under the authority of the State. It was a question to be decided solely with reference to public and municipal interests. The city had authority to expend its money in opening squares, in widening streets, in deepening rivers, in building common roads or railways. The State could do these things by the direct act of its legislature, or it could empower the city to do them. It could act CHAP. l] UNITED STATES V. BALTIMORE AND OHIO H. E. CO. 11 directly or through the agency of others. It is not a question to be here discussed, whether the action proposed would in the end result in the benefit of the city. It might be wise, or it might prove other- wise. The city was to reap the fruits in the advanced prosperity of all its material interests, if successful. If unsuccessful, the city was to bear the load of debt and taxation, which would surely follow. The city had the power given it by the legislature to decide the question. It was within the scope of its municipal powers. This advance of the city bonds was not a donation. It was an in- vestment supposed to be judiciously made and adequately secured. It was not for the individual benefit of those managing the business. No one received advantage except as he was a citizen or his property was within the city. It was not a loan for the benefit of the railroad; it was for the benefit of the city solely. That the railroad company was also benefited did not affect the purpose of the transaction. . . . We admit the proposition of the counsel, that the revenue must be municipal in its nature to entitle it to the exemption claimed. Thus, if an individual should make the city of Baltimore his agent and trustee to receive funds, and to distribute them in aid of science, literature, or the fine arts, or even for the relief of the destitute and infirm, it is quite possible that such revenues would be subject to taxation. The corporation would therein depart from its municipal character, and assume the position of a private trustee. It would occupy a place which an individual could occupy with equal propriety. It would not in that action be an auxiliary or servant of the State, but of the individual creating the trust. There is nothing of a governmental character in such a position. It is not necessary, however, to specu- late upon hypothetical cases. We are clear in the opinion that the present transaction is within the range of the municipal duties of the city, and that the tax cannot be collected. Judgment affirmed. Mr. Justice Beadley concurred on other grounds. Mr. Justice Clifford (with whose dissent and views concurred Mr. Justice Miller), dissenting: I dissent from the opinion and judgment of the court. Property owned by a municipal corporation and used as means or instruments for conducting the public affairs of the municipality may not be subject to Federal taxation, as it may perhaps be regarded as falling within the implied exemption established by a recent decision of this court. (The Collector v. Day, 11 Wall. 113.) Well-founded doubts, however, may arise even upon that subject, as the tax in that case was levied directly upon the salary of a judicial oflScer, and the opinion of the court is carefully limited to the case then before the court. But concede, for the sake of the argument, that the means and instruments for conducting the public affairs of the municipality are entitled to the same exemption from such taxa- 12 CASES ON MUNICIPAL OH PUBLIC COEPOKATIONS [CHAP. I tion as the revenues of the State, it by no means follows that the pri- vate property owned by such a corporation, and held merely as private property in a proprietary right, and used merely in a commercial sense for the income, gains, and profits, is not taxable just the same as prop- erty owned by an individual, or any other corporation. Such a right is one which may be of great value to the government in time of war and imminent public danger, and one which the United States ought never to surrender. Corporations of the kind are very numerous and they may and often do own large amounts of bank stock, bonds, and stocks of railroads, vacant lots and other real estate of great value, and many other species of personal property and choses in action never used or intended to be used as means or instruments for conducting the public affairs of the municipality, and in respect to all such property the right of Congress to pass laws subjecting the same to taxation with the property of the citizens generally is as clear, in my judgment, as it is that the power to lay and collect taxes, duties, imposts, and excises is vested by the Constitution in the national legislature. McCulloch v. Maryland, 4 Wheat. 434; Louisville v. Commonwealth, 1 Duvall, 295; National Bank v. Commonwealth, 9 Wall. 353; Veazie Bank v. Fenno, 8 id. 533. It was decided by this court, in the case of Vidal v. Girard's Ex- ecutors (2 How. 127), that the corporation of the city of Philadel- phia had the power under its charter to take real and personal estate by deed and also by devise, inasmuch as the English statute which excepted corporations from taking such properties in the former mode was not in force in that State; that where a corporation has this power it may take and hold property in trust in the same manner and to the same extent as a private person may do, even though the trust is not strictly within the scope of the direct purposes of the charter of the municipality. Ten years later this court affirmed that same rule in the case of The Executors of McDonogh v. Murdoch (15 How. 367), which gave $3,000,000 to the city of Baltimore and more than a half million of dollars to the city of New Orleans. Both of those cdrporations, it was held in that case, were empowered to take the property by devise, as the laws of the respective States do not prohibit such dispositions of property in their favor, affirming the principle that such corpora- tions may take real and personal estate by deed or devise, and that they hold such property in trust in the same manner and to the same extent as private persons, and the statistics will show that such cor- porations have become the grantees or devisees of vast amounts of personal and real estate, and that many of them still hold and enjoy the same for the income, rents, and profits. Apply the rule here suggested to the case before the court and it is clear, whether it be held that the tax was levied upon the municipal CHAP. l] PEOPLE OF THE STATE OF NEW TOEK V. INGEESOLL 13 corporation or the railroad company, that the judgment should be reversed. Judgment affirmed, in accordance with the opinion of the majority of the court. PEOPLE OF THE STATE OF NEW YORK v. INGERSOLL* 56 N. Y. 1. 1874 LThis action was brought by the State of New York against Tweed, Woodward, IngersoU, and Garvey, to recover money fraudulently ob- tained from the treasury of the county of New York. The plaintiff alleged in substance that the defendants, in pursuance of a fraudulent conspiracy among themselves and with others, public officers, made various fictitious claims and accounts against the county of New York, procured an issue of bonds by the said coimty, secured the ap- propriation of the money thereby obtained by the county to the pay- ment of the said fictitious and fraudulent claims, and divided the proceeds among themselves and others. The defendant IngersoU "^S^imrred, upon the groimd, among others, that the plaintiff had no legal Vapawty to sue to recover this money. The State app^led^from an oraer sustaining the demurrer. ^I4vk*«*«l (TV* Ot^rWUiJ /{.-is <* v/"^ Charles 0' Conor, Samuel J. TUdml'knd Wheeler H. Peekham for the appellants. William Fullerton, Elihu Boot, and David Dudley Field, for the re- spondents. Allen, J. . . . The party to maintain an action for a tort or wrong to property must be one whose property rights have been tortiously interfered with or invaded — one who, as trustee, special property man, bailee, or general owner, has been pecuniarily damaged, The State cannot, any more than an individual, have a civil action for the recovery of money, whether by way of damages for fraud or other wrong, the wrongful conversion of chattels, or for money received by and in the possession of others, except upon proof of title and owner- ship. A distinction is to be observed between actions by the people or the State, in right of the prerogative incident to sovereignty, and those founded on some pecuniary interest or proprietary right. The latter are governed by the ordinary rules of law by which rights are determined between individuals. . . . Whatever other remedies the people may have to redress or punish thisi wrong, no precedent has been referred to for the maintenance of a civil action by the people to recover either the money lost or for compensatory damages, without proof of a right in the State as a political and corporate entity to the 14 CASES ON MUNICIPAL OE PUBLIC COHPORATIONS [cHAP. I money asowner, and which would give it a place in the treasury of the State when recovered, or for some pecuniary damages sustained by the State, the compensation for which would of right belong to its treasury. The people, by the complaint, claim as owners, and do not seek to reclaim the money and compel its appropriation to any par- ticular use or purpose. . . . Corporate capacity is conferred upon each county in the State, and New York is not excepted, to sue and be sued, to purchase and hold lands within its limits, for the use of its inhabitants; to make con- tracts and possess personal property, and to dispose of and regulate the use of its corporate property; and all suits and proceedings by and against a county in its corporate capacity are directed to be in the name of the board of supervisors of such county, that serving pro hoc vice, as the corporate name. (1 R. S. 364, §§ 1-3; id., 384, §§ 1, 2; 2 id., 473, §§ 92, 95; Supervisors of Onondago v. Morgan, 2 Keyes, 277.) Counties are public, as distinguished from private corporations, and they are political as auxiliaries to the government of the State, and they are trustees of the people, the inhabitants within their county. (North Hampstead v. Hempstead, 2 Wend. 109.) They are sometimes called quasi corporations, because not in terms declared by statute to be corporations, and have a corporate capacity only for particular specified ends. But so long as they are invested with corporate attri- butes, even if it be sub modo, the distinction is without a substantial difference within the limits of the corporate powers conferred. (2 Kent's Com. 278, 279; A. & A. on Corp. § 23.) . . . The credit of the county, with granted power to use it, supported by the power of taxation delegated by the State, is a corporate right, and the fruits and avails of that credit, when exercised by the bor- rowing of money, are as much the property and rightfully belong to the treasury of the Qounty as if the specific sum had been granted in terms and paid from any other source. In political and governmental matters the municipalities are the representatives of the sovereignty of the State, and auxiliary to it; in other matters, relating to prop- erty rights and pecuniary obligations, they have the attributes and the distinctive legal rights of private corporations and may acquire property, create debts, and sue and be sued as other corporations; and in the borrowing of money and incurring pecuniary obligations in any form, as well as in the buying and selling of property within the limits of the corporate powers conferred, they neither represent nor bind the State. The relation of principal and agent does not and cannot exist, for obvious reasons, between the State and the various municipal corpora- tions created with power to contract debts, in respect to the exercise of the corporate functions. Debts contracted by municipalities, by authority of the legislature, are contracted by them as principals and not as agents of the State. . . . Judgment affirmed. CHAP, l] COUNTY OF ST. CHAELES V. POWELL 15 COUNTY OF ST. CHARLES v. POWELL* 22 Mo. 525. 1856 Action by the county, commenced April 19, 1855, upon a bond executed to it by the defendant which became due February 5, 1842. The defendant rehed in his answer on the statute of Hmitations of this State, the period of which is ten years. At trial, the court held that the debt was barred by the statute of limitations, and gave judgment for the defendant. The county appeals. C. C. Whittelsey and T. Cunningham, for appellant. J. Coalter and Alexander for respondent. Leonard, J. In 6 Bacon's Abr. tit. "Prerogative," E. 5, it was said that when a statute is general, and thereby any prerogative, right, title, or interest is divested or taken from the king, in such case the king should not be bound, unless the statute is made by express words to extend to him. It is upon this principle that, by the English com- mon law, statutes of limitations do not apply to actions brought by the crown, unless there be an express provision including it; and Story {United States v. Hoar, 2 Mason, 312) after referring to the reason given by Blackstone (1 Com. 247), says that the true reason of the king's prerogative, nullum temjms occurrit regi, is to be found in the great public policy of preserving the public rights, revenues, and prop- erty from injury and loss by the negligence of public oflBcers. But whatever the reasons of the prerogative may have been, it was origi- nally adopted, it is believed, in all the American States governed by the common law. It seems, however, to have had no place in the Roman law of the prescription of actions, except to enlarge the time within which the public authorities, both general and local, were re- quired to bring their suits. (1 Mackeldey's Civil Law by KaufTnan, 200, 202.) The new French code, expressly renounces it (Civil Code, § 2227); and our own State has recently done so too. (Practice Act, 1849, art. 2, § 10.) The immunity, however, it seems, was, even at common law, an attribute of sovereignty only, and did not belong to the municipal corporations or other local authorities established to manage the aflFairs of the political subdivisions of the State. It was so expressly held in the Lessee of the city of Cincinnati v. First Presbyterian Church (8 Ohio, 309),'and in Armstrong v. Dalton (4 Dev. N. C. 569); and we are not aware of any case to the contrary. In Marion County v. Moffett (15 Mo. 604), the omission of a public functionary to do an act required by law for the security of the public interest, was not allowed to operate as a release of the seciu:ity; but the decision had nothing to do with the application of the statute of limitations to cases of that character. 16 CASES ON MUNICIPAL OB PUBLIC COEPOEATIONS [CHAP. I The money here sued for belonged to the county and not to the State at large. It was vested in the county by a legislative donation — im- pressed, it is true, with a trust for local improvements; but yet it be- longed exclusively to the county, although for local and not for general purposes. . . . The judgment is affirmed. ; CHAP. Il] BEELIN V. GOEHAM 17 CHAPTER II Creation 1. Legislative Power to Create and Alter ^BERLIN V. GORHAMJ 34 N. H. 266. 1856 Assumpsit; to recover for supplies furnished for the support of Jeremiah Harding, and his wife Nancy Harding, alleged to be paupers having their settlement in Gorham. The plaintiffs gave evidence that when Gorham was incorporated, on the 18th of June, 1836, Jeremiah Harding resided and had his home in the place which was incorporated into that town. The court ruled that if he so resided, he would thereby gain a settlement in Gorham, although no legal town meeting was holden, and though no town officers were chosen, before his removal. The defendant excepted to the foregoing ruling, and moved that the verdict returned for the plaintiffs be set aside. Bellows & Fletcher, for defendant. G. C. WiUiams, for plaintiff. Bell, J. By the statute of 1828 (Laws. Ed. 1830, p. 301), relating to the settlement of paupers, which is re-enacted without material change in the Revised Statutes, ch. 65, s. 1, cl. 6 (Comp. Stat. 157), "all persons, dwelling and having their homes in any unincorporated place at the time when the same shall be incorporated into a town, shall thereby gain a settlement therein." It was objected that to make an incorporation of a town effectual, there must be a legal town meeting holden in it; and as the pauper, though he resided in the town at the passage of the act, removed before any meeting was holden, he did not gain a settlement. This objection rests upon the idea that the rule which applies in the case of private corporations, that the act is ineffectual until it is accepted by the corporators, governs also the case of public corporations, like towns. See A. & A. on Corp. 68. But there is no such rule in the case of public corporations of a municipal character. The acts of incorporation are imperative upon all who come within their scope. Nothing depends upon consent, unless the act is expressly made conditional. No man who lives upon the incorporated district can withdraw from the corporation, unless by a removal from the town; and by the mere passage of the law the 18 CASES ON MUNICIPAL OK PUBLIC COEPOKATIONS [CHAP. It town is completely constituted, entitled to the rights and subjected to the duties and burdens of a town, whether the inhabitants are pleased or displeased. The legislature has entire control over muni- cipal corporations, to create, change, or destroy them at pleasure, and they are absolutely created by the act of incorporation, without the acceptance of the people, or any act on their part, unless otherwise provided by the act itself. The People v. Wren, 4 Scam. 269; Warren V. Mayor, etc. of Charlestown, 2 Gray, 104; Mills v. Williams, 11 Ired. 558; The State v. Curran, 7 Eng. 321; Fire Department v. Kip, 10 Wend. 267; The People v. Morris, 13 Wend. 337. . . . Judgment on the verdict. 2. Legislative Power to Invest with Governmental Authority PEOPLE, ex rel. COX v. JUSTICES OF THE COURT OF SPECIAL SESSIONS 7 Hun {N. Y. Supreme Ct.), 214. 1876 Ceetiohaei to the Court of Special Sessions to review the convic- tion of the plaintiff in error of a misdemeanor. Daniels, J. The relator was tried, convicted, and sentenced to imprisonment for the period of one month in the penitentiary, for keeping and offering for sale watered and adulterated milk. The act charged against him was a violation of section 45 of the sanitary code, adopted and promulgated by the board of health of the city of New York."^ By that section of the code it was declared "that no person shall have at any place where milk, butter, or cheese is kept for sale, nor at any place offer or have for sale, nor shall any person bring or send to said city any unwholesome, watered, or adulterated milk, or milk known as swill milk, or milk from cows or other animals that, for the most part, lived in stables," etc. It is not claimed in behalf of the relator, that the act charged against him was not a violation of the terms of this section of the sanitary code. But it is objected that the board of health could not be con- stitutionally empowered to enact it. If the legislature could confer such authority on the board, ample reason exists for concluding that it has been done, for by section 82, article 11, of chapter 335 of the Laws of 1873, it was provided that, besides conforming the existing > Under the statutes {Laws of New York, 1873, ch. 335, §§ 25, 80), the board wa» a department of the city organization, and its members were appointed by the mayor -with the consent of the board of aldermen. CHAP, ii] PEOPLE ex rel. cox v. court of special sessions 19 sanitary ordinances to its provisions, the board should also be "au- thorized and empowered to add to such sanitary code from time to time, and shall publish additional provisions for the security of life and health in the city of New York, . . . which shall be published in the City Record. Any violation of said code shall be treated and punished as a misdemeanor, and the offender shall also be liable to pay a penalty of fifty dollars, to be recovered in a civil action in the name," etc. The propriety of such an ordinance as that which the board has enacted is so evident as to be clearly within the power contained in this section of the charter. It was necessary for the protection and preservation of the health of the inhabitants of the city. A more wholesome regulation could hardly have been devised or adopted, and it should be sustained and enforced by the courts, unless the board were deprived of the power to prescribe it, by some constitutional disability. The objection seems to be, that it involved such an exer- cise of legislative power as had been exclusively confided to the senate and assembly. Several adjudicated cases were cited and relied upon as maintaining that position, but an examination of them will at once show that they result in no such conclusion. Hart v. Mayor of Albany, 3 Paige, 216; Aiken v. Western R. R., 20 N. Y. 370; Corning v. Greene, 23 Barb. 33; Bacon v. Robertson, 18 How. (U. S.) 480; People v. Albert- son, 55 N. Y. 50. Neither of these cases contains anything which would justify a denial of the authority exercised in this instance by the legislature. It is an authority which for many years has been ex- ercised by legislative bodies in this country and in England and it results from, and is incidental to, the power to create and maintain municipal organizations. The power to enact and enforce ordinances has always formed an essential feature in the creation of those cor- porations, and the Constitution contains nothing restricting its ex- ercise to any particular part of the municipal body. It may be con- ferred upon the mayor and common council, or the latter body alone, or any other department of the municipal government, as may appear to be most just and expedient in the judgment of the legislature. That is a necessary result of the plenary authority secured by the Constitu- tion to the legislature. Under that instrument the power exists to create and maintain bodies of that character; and how it may be most judiciously done, what authority over their inhabitants they may have, and how it may best be exercised, are matters that must neces- sarily be confided to the judgment of the legislatiu-e.' It had the power to authorize the city of New York to enact ordinances from time to time, as might appear to be necessary for the promotion, preservation, and protection of the public health, and as the constitution nowhere required that the authority should be given to the common coimcil, the legislature was at liberty to deposit it elsewhere. Its authority to enact laws where the constitution has not restrained it was complete 20 CASES ON MUNICIPAL OK PUBLIC COKPOEATIONS [CHAP. 11 and ample {Leggett v. Hunter, 19 N. Y. 445, 463), and as its power in this respect had not been Umited, that was sufficient to warrant the delegation of the power to enact this ordinance, to the board of health. It was empowered as a department of the municipal government to enact this and other ordinances required to maintain the proper sani- tary condition of the city, for the obvious reason that it would dis- cover what might be requisite for that purpose in the discharge of its other duties, more readily than either of the other departments. The power was necessary to provide for apprehended emergencies, and it was placed where it could be most efficiently exercised. That the legislature could confer it upon the corporation is very clearly settled by an unbroken weight of authority; Jones v. Firemen's Fund Ins. Co. (2 Daly, 307) ; Hopkins v. Mayor of Swansea (4 Meeson & W. 621), where it was held that corporate by-laws, enacted by authority, have the same effect within the appropriate Kmits as an act of Parliament (id. 640); Heland v. City of Lowell (3 Allen, 407), in which an ordi- nance was held to be as binding on the members of the corporation and all other persons, as any statute or other law of the Common- wealth {id. 408); City of Brooklyn v. Breslin (57 N. Y. 591); Heister V. Metropolitan Board of Health (37 id. 661); Tanner v. Trustees of Albion (5 Hill, 121), where such power was given to, and exercised by, the trustees of a village; and there is nothing in either of these de- cisions by which it has been required to be lodged in any particular functionaries of the municipality. The practice, on the other hand, has long existed, by which this power has been conferred upon boards of health, and it has not been limited to the cases of large cities, but the trustees of villages and the local officers of towns, even, have been made its recipients, and they, with the more complete boards of cities, have been delegated similar authority to enact and enforce such ordinances and regulations as the exigencies of the public health should appear to require. (Laws of 1850, ch. 324, §§ 1-3; sub. 3, § 3; Laws of 1854, ch. 169; Laws of 1870, eh. 559.) The ordinance in this case could not be held invalid without practically undermining this entire system, which has existed for years entirely unchallenged. The power of the legislature over this subject has not been denied by the constitution, and the conclusion necessarily follows that it could, as it has, delegate to the board of health of the city of New York the power to make the ordinance in question. It was merely the exercise of municipal authority through the intervention of this board instead of the common council, and no well founded objection could be taken to that, as long as the ordi- nances to be enacted were to be confined to the subject committed to its jurisdiction and control. ... / Davis, P. J., and Beadt, J., concurred. Judgment affirmed. CHAP. Il] STATE, ex rel. HOWE V. MATOK OF DES MOINES 21 I STATE, ex rel. HOWE, COUNTY ATTORNEY, v. MAYOR, ETC., OF DES MOINES * 103 Iowa, 76. 1897 Action for mandamm to compel the city council of the city of Des Moines to levy a tax for library purposes, at a rate fixed and certified by the board of library trustees of the city. That board was estab- lished by ch. 41, Acts Twenty-fifth General Assembly, as amended; which provides that the members shall be appointed by the mayor,, with the approval of the council; that the board shall have full control over the library of the city and over the funds raised for library pur- poses by taxation; that the board shall annually fix the amount to- be raised for library purposes for the ensuing year (for maintenance not exceeding one mill on the dollar and for a building and a sinking fund not exceeding three mills on the dollar), and cause the same to be certified to the city council; and that the city coimcil shall levy taxes necessary to raise the sums so certified and shall certify the rate of such taxes to the county auditor. This act, by its terms, applied to all cities which had previously ac- cepted the provisions of § 461, of the Code of 1873, and Des Moines is one of those cities. By that section of the Code cities of the first and second classes were empowered to levy an annual tax, not exceeding one-half mill on the dollar of taxable property, for a public library. A jury was waived. After trial, the court gave judgment for the defendants. Plaintiff appeals. Read ds Read and Hubbard & Dawley, for appellant. J. K. Macomher and Bishop, Bowen & Fleming for appellee. KiNNE, C. J. ... If it be conceded that a tax for the maintenance of a public library and for the erection of a library building is a tax for a public purpose, and hence one which, in furtherance of the general public policy of the State, may be compelled to be levied, may the legislature authorize its levy by the board of Ubrary trustees? Touch- ing the power of the legislature to delegate the taxing power. Judge Cooley says : " It is a general rule of constitutional law that a sovereign power conferred by the people upon any one branch or department of the government is not to be delegated by that branch or depart- ment to any other. This is a principle which pervades our whole political system, and, when properly understood, permits of no excep- tion, and it is applicable with peculiar force to the case of taxation. The ■power to tax is a legislative power. The people have created a legislative department for the exercise of the legislative power, and within that power lies the authority to prescribe the rules of taxation, and to regulate the manner in which those rules shall be given effect. . . . There is, nevertheless, one clearly defined exception to the rule. 22 CASES ON MUNICIPAL OH PUBLIC CORPORATIONS [CHAP. II that the legislature shall not delegate any portion of its authority. The exception, however, is strictly in harmony with the general features of our political system, and it rests upon an implication of popular assent, which is conclusive. These exceptions relate to the case of municipal corporations. Immemorial custom, which tacitly or ex- pressly has been incorporated in the several State constitutions, has made these organizations a necessary part of "the general machinery of State government, and they are allowed large authority in matters of local government, and to a considerable extent are permitted to make the local laws. This indulgence has been carried into matters of taxation; the State in very many cases doing little beyond pre- scribing rules of limitation within which, for local purposes, the local authorities may levy laxes. . . . The legislature, however, in thus making delegation of the power to tax, must make it to the corporation itself, and provide for its exercise by the proper legislative authority of the corporation. . . . What is true of the State is equally true of the municipality, — that the power they possess to tax must be ex- ercised by the corporation itself, and cannot be delegated to its officers or other agencies." Cooley, Taxation (2d ed.), pp. 61, 63, 65. The doctrine laid down by the learned author is that the delegation of the power to tax by the legislature must be made to the municipality itself, and that it cannot be delegated to other agencies. The constitution of the State of Illinois contains the following pro- vision: "The corporate authorities of counties, townships, school districts, cities, towns, and villages may be vested with power to assess and collect taxes for corporate purposes." Constitution Illinois, 1848, Art. 9, § 5. In construing this provision, the supreme court of that State said that the phrase "corporate authorities," as used in the constitution, must be understood as "those municipal officers who are either directly elected by the people to be taxed, or appointed in some mode to which they have given their assent. People v. Mayor, etc. of City of Chicago, 51 111. 17. The same court, in construing the same constitutional provision, said: "The power of taxation is, of all powers of government, the one most liable to abuse, even when exer- cised by the direct representatives of the people; and, if committed to people who may exercise it over others without reference to their consent, the certainty of its abuse would simply be a question of time. No person or class of persons can be safely intrusted with irresponsible power over the property of others, and such a power is essentially despotic in its nature, and violative of all just principles of govern- ment. It matters not that, as in the present instance, it is to be pro- fessedly exercised for public uses by expending for the public benefit the tax collected. If it be a tax, as in the present instance, to which the persons who are to pay it have never given their consent, and im- posed by persons acting under no responsibility of official position, and clothed with no authority of any kind, by those whom they propose CHAP n] STATE, ez Tel. HOWE V. MATOB OF DES MOINES 23 1o tax, it is, to the extent of such tax, niisgovernment of the same char- acter which our forefathers thought just cause of revolution. We are of opinion that we do no violence to the language of the clause in the constitution we have been considering by holding that it was designed to prevent such ill-advised legislation as the delegation of the taxing power to any person or persons other than the corporate authorities of the municipality or district to be taxed. These authorities are ■elected by the people to be taxed, or appointed in some mode to which the people have given their assent, and to them alone can this power be safely delegated." Harward v. Drainage Co., 51 111. 130. In still another case, in which the constitutionality of the metropolitan police act of the city of East St. Louis was under consideration, and in which the police commissioners were appointed by the act, and given power, not to levy a tax, but to estimate what sum of money would be neces- sary for each fiscal year to enable them to discharge the duties imposed upon them, and the act required the city council to appropriate and set apart the amount so certified out of the general fund of the city, and, in case the council failed so to do, then it was made the duty of the board of commissioners to issue certificates of indebtedness in the name of the city for the amounts so certified, the court said: "These police commissioners are not the corporate authorities of East St. Louig, and therefore can have no power of taxation. They are not elected by the people of that city nor appointed in any mode to which the people have given their assent. The act creating them has never been accepted by the people or by the city council, but, on the other hand, as alleged in the bill, the council has constantly denied the authority of the commissioners." Hinze v. People, 92 111. 406. See, also, Updike v. Wright, 81 111. 49; People v. Morgan, 90 111. 558. . . . [The court then stated, and quoted from, Board of Commissioners v. Abbott, 52 Kan. Sup. 148 (34 Pac. Rep. 416) ; Parks v. Board of Commissioners, 61 Fed. Rep. 436, and People v. Common Council of Detroit, 28 Mich. 228.] We say, then, that there is an implied limitation upon the power of the legislature to delegate the power of taxation. This, of neces- sity, must be so, otherwise the legislature might clothe any person with the power to levy taxes, regardless of the will of those upon whom such burdens would be cast, and such person might be directly re- sponsible to no one. Whatever the effect of the constitutional pro- visions in Illinois and Kansas may be, the reasoning of the cases is in line with the views expressed by Judge Cooley, and it is equally applic- able to cases where there are no express constitutional limitations. It is said that it is not true that power to determine the rate of taxes must be committed to the proper legislative authority of the corporation, and certain instances in this State are cited, as the power given the executive council to determine the rate of tax for State purposes. • • • Code 1873, section 835. But counsel have cited no instance in the legislation of this State, and we have found none, where the power to 24 CASES ON MUNICIPAL OE PUBLIC COEPOKATIONS [CHAP. U tax was conferred upon a board or officer not elected by and imme- diately responsible to the people, and we are unwUling to extend the right to delegate such power to any body or person not directly repre- senting the people. The danger which lies in delegating such power to any person or board not directly responsible to the taxpayers is so forcibly set forth in the citations we have made that we need not en- large upon it. If the power to tax may be by them vested in a board of library trustees, against the will of the people, it may be reposed in any other body which is not directly accoimtable to the people. . . . We have treated this statute as, in effect, authorizing the library board to levy the tax. In fact, it in terms directs them to fix and de- termine the amount of the tax, which, upon being certified to the council, it must levy. The right to thus fix and determine is equiva- lent to the right to levy. ... The remaining question is. Have the people of the city of Des Moines in any manner assented to the exercise of the power of taxation at- tempted to be conferred upon and exercised by the board of library trustees? The people of the city did by vote accept the provisions of the law as it then existed. The law then did not authorize any in- crease of taxation, and the library was under the direct control* and management of the city council, who were elected by the people. By subsequent acts of the legislature a board of trustees was established and their duties and powers fixed; the control and management of the library was by statute vested in said board, and the board was vested with the power of absolutely determining the amount of tax that should be levied. It will be seen that the people assented by their vote to maintaining a public library, which should be under the con- trol of the council which they elected. They never consented to the creation of a board of library trustees which should be in control of the library, and be substantially vested with the power to levy taxes without the consent and against the will of the people. The placing of the extraordinary power of taxation in a body not the direct crea- tion of, or directly responsible to, the people, was in no way involved in the vote of the people had before such powers were conferred or thought of. Here, by an act passed subsequent to the vote of the people, the legislature empowers an irresponsible board (irresponsible in the sense that they are not directly accountable to the people) to fix a tax levy limited in the amount which may be raised each year, but unlimited in duration, so that millions of dollars may be accumu- lated without consulting the people, or their immediate representa- tives, the city council. . . . Nor can we agree to the contention that, inasmuch as the people elect the city council and the mayor, and the mayor -appoints the library board with the consent of the council, therefore such board is, in fact, selected by the people, or that thereby the people assented to the legislation creating the board and endowing it with the power CHAP. Il] ECKERSON V. CITY OF DES MOINES 25 to fix and ^determine the taxes to be levied. If such contention was correct, it would be difficult to find a case of an officer or board vested with taxing powers, no matter by whom appointed, when by the same process of reasoning the original power could not be traced through the various offices or agencies to the people themselves. Suppose the act at bar had provided that the board of library trustees for the public library of the city could be appointed by the governor of the State, it would not be contended for a moment that the people, by voting for and electing the governor who appoints such a board, thereby gave their assent to such a mode of appointment. ... The action of the district court in refusing a writ of mandamus and in rendering a judgment against the plaintiff for costs was correct, and ttie ^ Judgment is affirmed. 3. Form of Municipal Government: Creation by General Laws ECKERSON et ah. v. CITY OF DES MOINES et ah.* 137 Iowa, 452. 1908 Action in equity by taxpayers for an injunction to prevent the city and its officers from going forward with the organization of a new city government under chapter 48 of the Acts of the Thirty-second General Assembly. The petition alleges that at an election duly held in the city under that act a majority of the votes cast were in favor of adopting its provisions, and that the defendants are preparing to hold a primary and a general election for the choice of officers thereunder. The ground of the petition is, as averred, that the act is unconstitu- tional. The city of Des Moines is a city of the first class, organized under previous general statutes, and its population is over forty thousand. The act here involved provides that "any city of the first class, or with special charter, now or hereafter having a population of twenty-five thousand or over, . . . may become organized as a city under the provisions of this act by proceeding as hereinafter provided; "that is, on petition of electors an election shall be held on the question whether the city shall organize under the act; and if the majority of votes cast shall be in favor of so organizing, an election shall be held for choosing the officers for which the act provides. The act vests the powers of the city in a council, composed of five members — a mayor and four coimcilmen to be nominated and elected at large. The niayor is to preside, and to have the right to vote, but not to veto. Section 7 is as follows: 26 CASES ON MUNICIPAL OB PUBLIC COKPOEATIONS [CHAP. n "The council shall have and possess and the council and its members shall exercise all executive, legislative, and judicial powers and duties now had, possessed and exercised by the mayor, city council, board of public works, park commissioners, board of police and fire commis- sioners, board of waterworks trustees, board of library trustees, solic- itor, assessor, treasurer, auditor, city engineer, and other executive and administrative officers in cities of the first class and cities acting under special charter. The executive and administrative powers, authority, and duties in such cities shall be distributed into and among five de- partments, as follows : 1. Department of public affairs. 2. Department of accounts and finances. 3. Department of public safety. 4. Depart- ment of streets and public improvements. 5. Department of parks and public property. The council shall determine the powers and duties to be performed by, and assign them to, the appropriate departmeiit; shall prescribe the powers and duties of officers and employees; . . . and may make such other rules and regulations as may be necessary or proper for the efficient and economical conduct of the business of the city." By section 8 it is provided that the mayor shall be superinten- dent of the department of public works, and to each of the other depart- ments a cotmcilman shall be elected by the council as superintendent. The council is to elect the city clerk, treasurer, and various other executive officers. It is provided also that the ordinances, and the rights, property, and liabilities of the city as previously organized shall continue. From a ruling which sustained demurrers to the petition and to the petitions of certain interveners, the plaintiffs and the interveners appeal. Samson & Dillon, for appellant Eckerson. Carr, Hetoitt, Parker, and Wright, for appellant A. M. Huston. W. L. Read, for appellants board of park commissioners. Bremmer, Earle, Cohen, McLaughlin, for appellees. Bishop, J. ... I. Taking up the matters of contention in the order which seems to us best adapted to a disposition of the case, we have as the first question. Is chapter 48 violative of section 4, article 4, of the Federal Constitution? The portion of the section invoked reads thus: "The United States shall guarantee to every State in this Union a repubHcan form of government." This guaranty — so runs the con- tention — is not alone to the State, as such, but extends to the various subdivisions thereof intended to have part in the affairs of government. And the argument follows that a form of municipal government which ignores the essential features of executive, legislative, and judicial de- partments, each of which shall be separate and distinct from the others, and commits the functions of government to a single board or body, is non-republican, and hence repugnant to the guaranty. In our view the hypothesis is wholly wrong, and hence the argument is without force. The purpose of the Federal Constitution was to provide a form of gov- ernment, republican in character, for the States as a united whole. This CHAP. Il] ECKEESON V. CITY OF DES MOINES 27 is manifest from'the history of the times, the contemporaneous writings and public addresses, the constitutional debates, and the provisions of the instrument itself as adopted. And whatever may be the form of -words employed by the lexicographers — and they are more or less varied — to define what is meant by the expression " a republican form of government," it is clear that it was understood by the fathers to mean a government by the people, through representatives appointed by them to the various departments — executive, legislative, and judi- cial, as provided — either by direct vote or through some intervening oflScer or body by them selected and appointed by direct vote for the purpose. Now, at the time the Constitution was adopted, as it is well Imown, there were in existence thirteen States, each thereof supreme as related to its own domestic affairs, and in each of which the govern- ment was divided into three departments — executive, legislative, and judicial — and carried on through representatives selected from time to time by vote of the people. It is to be noted, however, that the form of local government provided for municipalities and other State subdivisions varied in the different States. In some pure democracy obtained through the medium of the "town meeting;" in others, boards of selectmen were chosen, etc. That the form of government in vogue in these States was republican was not made the subject of question when the Federal Constitution came to be considered. No one of such States was called upon to amend its plan of government — State or municipal — to bring it into harmony with the plan proposed for the Federal government. Now, having agreed upon a form or plan of general government it became of interest, as we conceive, that there should be maintained in the several States, then and thereafter composing the Union, a form of government constructed along the lines then presently existing, and generally to be in harmony with the Federal plan agreed upon. And, to secure this there was included in the constitutional writing the guar- anty provision now under consideration. In this view it becomes ap- parent that the guaranty was intended to be to the States as such; that it was not intended to have any relation to the systems of local govern- ment provided by the several States for the regulation of their munici- palities or other subdivisions. Says Judge Cooley in his work on Con- stitutional Limitations, 28 : " The purpose of this guaranty was to protect a Union founded upon republican principles against aristocratic and monarchical invasion," that is, to prevent the people of a State from abolishing a republican form of government. And this is the thought of text and essay writers generally. Clearly enough, there is nothing in the language of the guaranty to indicate a purpose on the part of the general government to interfere with those matters of internal or do- mestic concern within a State which are of interest only to the people thereof — at large, or as divided into communities. And as the language does not give warrant, the power does not exist. . . . 28 CASES ON MUNICIPAL OK PUBLIC COEPOBATIONS [CHAP. n II. More or less in line with the contention disposed of in the preced- ing division of this opinion is the further contention of plaintiffs that chapter 48 is void because repugnant to section 1, article 3, of the con- stitution of this State. That section reads as follows: "The powers of the governmentof lowashall be divided into three separate departments: the legislative, the executive, and the judicial; and no person charged with the exercise of powers properly belonging to one of these depart- ments shall exercise any function appertaining to either of the others." It will be observed that by section 7 of chapter 48, the municipal powers — executive, legislative, and judicial — possessed by the cities becoming organized vmder the act, shall be exercised by the council consisting of the mayor and four councilmen elected as herein provided for. But little is necessary to be said in making disposition of this contention. To our minds it seems plain that the Constitution has reference solely to the instrumentalities through which the powers of the State — acting directly in its sovereign capacity — shall be exercised. ... As it is well known, the county courts of this State, when they existed, were not only authorized to perform judicial duties, but executive and legis- lative as well. Under the general statutes now existing, mayors of cities and towns have conferred upon them powers and duties both executive and judicial, and, particularly in towns, the mayor, in virtue of his right to vote on all questions coming before the council, constitutes in all strictness a part of the town corporate legislative body. Boards of supervisors, city and town councils, boards of school directors, town- ship trustees, and various individual officers are directly charged with and are in the performance of powers and duties, now admihistrative in character, and again judicial, etc. We shall not stop to further par- ticularize. The statute book of this State, as of every State in the Union, is replete with illustrative examples. In support of their position, counsel for plaintiffs rely upon Attorney General v. Detroit, 112 Mich. 145 (70 N. W. 450, 37 L. R. A. 211) and Whitcomb's Case, 120 Mass. 118 (21 Am. Rep. 502). In our opinion the cases thus cited do not reach the question as made on the record before us. As the books in which they are to be found are generally accessible, we shall not stop to discuss them. III. Section 30, article 3, of the constitution of this State, provides that the General Assembly shall not pass, local or special laws for the incorporation of cities and towns. In such cases, the laws shall be gen- eral, and of uniform operation throughout the State, and by section 6, article 1, it is provided that all laws of a general nature shall have a uniform operation. Plaintiffs and interveners challenge chapter 48 as violative of the provisions thus cited. And this is the matter upon which principal stress is laid in argument. As we understand, the grounds of contention are these: (1) The act is local or special legisla- tion, because the proposed operation thereof is restricted to a limited number of cities — i. e., those of the first class and under special charter CHAP. Il] ECKEHSON V. CITY OF DES MOINES 29 having a certain population and which elect to adopt the same; (2) the act is not intended to have, nor is it possible that it should have, uni- form operation, because (a) the classification adopted is arbitrary and without substantial grounds of distinction in its designation of the cities to be affected; and (6) it is intended to have application only to those cities which accept it on popular vote of the electorate. The questions arising out of these matters of contention are somewhat interwoven, and may properly be discussed in the same connection. In a sense, it is true that according to its terms the act is to have a limited operation. But it is a limitation founded upon inherent con- ditions, and not upon nimiber. It will be observed that the reading of the act is "any city"; there is no attempt to make individual selection. This being true, there is no force in the contention that the act must be condemned because local or special. Those words as employed in the Constitution are essentially descriptive. While, theoretically, they are not strictly similar in meaning, still when we consider the circumstances of their use, as we are authorized to do, it becomes clear that the framers of the Constitution employed them as equivalents — as descriptive of one and the same thing. ... Failing to specialize the place, an act could not in the very nature of things be local. On the other hand, it does not seem that there could be a special act for incorporation without reference made therein in some way, direct or indirect, to the place within the limits of which the act should have force of operation. From all this, we have the ultimate conclusion that the prohibitive ban of the present Constitution is against an incorporation act, the distinctive features of which shall be the selec- tion of a fixed and definite territorial location, and a grant of individual- ized powers; powers not necessarily different in character from those to be found in other grants, but made up without reference to any other grant. It follows from this that the words "local" and "special" must be accepted as synonymous, in the sense that they are descriptive of one and the same thing. When analyzed, our own cases will be found to rest upon this view. The practice of municipal classification — each class having granted powers differing in many respects from those enjoyed by the others — dates back to the organization of the State. And this com-t has uniformly recognized the practice as within the legislative authority. The doctrine of all the cases is that an act is not local or special if it brings all municipalities similarly conditioned — then existing and thereafter to come into existence — into a class, and in respect of each of which the act is to have uniform operation. . . . The act under consideration in TuUle v. Polk [92 la. 433] was one granting certain powers and privileges to all cities of the first class having a population of thirty thousand or over; thus excluding, it is to be observed, other cities of the first class then existing within the State. The act was assailed as local or special, and in disposing of the contention the court said: "At the time it (the act m question) was 30 CASES ON MUNICIPAL OR PUBLIC C0HP0KATI0N3 [CHAP. II enacted the city of Des Moines was the only one in the State having a population as great as the number stated, but that fact did not make the act special, for the reason that it was not restricted to cities having the required population at the date it became a law, but was general, applying to all cities which should thereafter have more than thirty thousand." If, in respect of its intended application, the act particu- larizes the place — or, for that matter, places — which is made the re- cipient of corporate authority, it is offensively special. On the other hand, an act is general if the effect thereof on being put into operation is to bring into a class all places similarly conditioned — then existing, or thereafter to come into existence — and in respect of each of which places the provisions of the act are to be equally applicable. . . . Coming to the second question, in the situation of this case, it would seem that but little need be said. Conceding the rule that classification of municipalities by legislative act — the object being to confer upon a class selected some exclusive power or powers — must be founded upon some appreciable difference in condition, existing or to be apprehended, still it remains to be said that the question whether conditions do exist which reasonably call for the classification and exclusive grant of powers must be answered, primarily at least, by the lawmaking body. And it is fundamental doctrine that the courts will not interfere on consti- tutional grounds unless the act is clearly and palpably within the inhi- bition of the fundamental law. . . . If all cities availing themselves of the act are to be governed alike, the law is uniform. And this conclusion is not disturbed because, for- sooth, it is possible, or even probable, that some one or more of the eligi- ble cities may not avail themselves of the act. Fiu-ther discussion of the point does not seem to us necessary. Our conclusion finds support in the following cases: DaHyy v. Wolf, 14 la. 228; State v. King, 37 la. 462; Lytle v. May, 49 la. 224; State v. Forkner, 94 la. 733; Ad After this decision, the city council passed a resolution declaring that ''it has become for the interest of the city, in its highway department and for other muni- cipal uses," to purchase the property concerned, and authorizing its purchase. The property was accordingly bought and paid for by the city. Taxpayers then brought a bill to have the conveyance annulled and the price returned; Sieging that the true purpose of the council in passing the resolution was to force Clark to abandon or settle his suits. The case was heard on bill, answers, and oral evidence; and the court granted the relief prayed for. Potter, J., said: "And power to compel the parties to repay the money and to restore the former condition of things is as essential as the power to enjoin an appro- priation or payment of money, otherwise the corporation, by speedy action and payment, might anticipate and defeat the relief to which the complainants are entitled. "And it is also well settled that the parties may resort to evidence db extra to show the true object and intent of the municipal action. "'And from the answers and the oral evidence it is well established that the pur- chase was not for any of those purposes for which the city may lawfully purchase, but was primarily, if not solely, for the purpose of enabling the city to obtain a con- irol of certain property, and to make use of it in settling a lawsuit with one of its citizens." Place v. Providence, 12 R. 1. 1. 84 CASES ON MUNICIPAL OK PUBLIC COEPOEATIONS [CHAP. Ill of the purchase. 2 Dill, Mun. Corp. § 444; Weismer v. VUlage of Douglas, 64 N. Y. 91, 21 Am. Rep. 586. But the terms of the charter are imperative, that such property must be "required for the use, con- venience, and improvement of the city." Collateral advantages, inci- dentally resulting in the promotion of the city's commercial or business prosperity, will not be sufficient. It is not contemplated or permitted that such property shall be acquired in aid of any private enterprise not of a public character, however laudable may be its purpose, or however useful may be its encouragement. As said by Mr. Justice Miller, m Loan Association v. Topeka, 20 Wall. 655, 660: "It follows that in this class of cases the right to contract must be limited by the right to tax, and if in the given case no tax can lawfully be levied to pay the debt, the contract itself is void for want of authority to make it," .... It is useless to review in detail the evidence in this case as to the pur- pose for which this land was purchased. The scheme was manifestly inaugurated for the benefit of a private corporation, with the expec- tation, no doubt, of incidental advantages to the city of Eufaula, and with the belief, perhaps, that it would never necessitate municipal tax- ation for the debt created. The city ordinance of May 21, 1872, pro- vided, " That his Honor, the Mayor, be authorized to have nine thousand, seven hundred dollars, twenty years' bonds, of the city of Eufaula, bearing eight per cent interest, payable annually on the 1st day of December, printed for the purpose of complying with the contract made with Mr. John McNab, for the land to be used by the South-East Ala- bama Agricultural and Mechanical Association." The evidence fur- ther shows that all the contracting parties fully understood that this land was reaUy purchased by the city for the benefit of this agricultural association, as a suitable place for holding " their annual fairs," and that they had the " exclusive use of the premises." And the bonds, as printed and delivered to appellee, show on their face that they were given "for land embraced in the present Fair Grounds in said city; " a small dif- ference of a few hundred dollars being paid in money. We are of opinion that the city of Eufaula had no power to make this purchase for such a purpose. The city council, therefore, have no au- thority to levy taxes for the payment of the bonds, or the accumulated interest on them, and they impose no legal liability for their payment upon the municipality of Eufaula. Loan Association v. Topeka, 20 Wall. 655; Allen v. Inhabitants of Jay, 60 Me. 124; Lowell v. City of Boston, 111 Mass. 454; Hanson v. Vernon, 27 la. 28; Railroad Co. v. Dunn, 61 Ala. 128; Weismer v. Village of Douglas, 64 N. Y. 91. .. . . This view of the case compels a reversal of the Chancellor's decree, and the, dismissal of the bill. Under the present frame of it, we do not think it can be retained as a bill for rescission and cancellation. .... CHAP, in] SCHNEIDER V. CITY OF MENASHA et ols. 85 SCHNEIDER v. CITY OF MENASHA a ah. 118 Wis. 298. 1903 Taxpayer's action to restrain defendant city and its officers from consummating a contract to purchase a tract of land just outside the corporate limits of the city, from which to obtain stone for manufactur- ing crushed rock for city purposes. The complaint contained all the necessary allegations to raise the question of whether the city possessed power to do the act sought to be prevented. The defendant city an- swered that the purpose of purchasing the land was to obtain a supply of crushed rock for use upon the city streets, and that such land was; conveniently located for such purpose. A motion for a preliminary in- junction was denied, and plaintiff appealed. J. C. Kerwin, for the appellant. For the respondents there was a brief by Bouck & Hilton and J. M. Pleasants, and oral argument by Gabe Bouck. Marshall, J. . . . Can a city, under its general power to '' purchase and hold real estate sufficient for the public use, convenience, or neces- sities" (Charter of Menasha, § 4, subch. XV., ch. 123, Laws of 1801), piu-chase real estate outside of its corporate limits convenient for use in obtaining a supply of crushed rock to be used upon the city streets? The city of Menasha had express authority to improve its streets. It had express authority to purchase such real estate as it deemed rea- sonably necessary or convenient for the city's use. It possessed, by implication, all the powers reasonably necessary to the proper exercise of such express powers, and those essential to the objects and purpose of its corporate existence. Trester v. Sheboygan, 87 Wis. 496. The acquirement of a supply of crushed rock for use upon the city streets was a legitimate city purpose. That is conceded. It must be conceded, also, that to obtain such supply by the purchase of real estate and man- ufacturing the crushed rock therefrom within the city hmits would be a legitimate exercise of corporate power. Would an act which does not involve the exercise of sovereign authority, — one in the exercise of the ordinary business functions of a city inside the city limits, — cease to be such if performed just over the boundary line or within a conven- ient distance from the city? The language of the charter is general. Looking at the literal sense thereof, the city may do business outside its boundaries so far as rea- sonably necessary to carry out the express powers granted to it, as well as within. It is admitted that a city may own realty outside its limits for purposes which are essential to its welfare, as for a cemetery or pest house. On that, 2 DHL, Mun. Corp. (4th ed.) § 565, is cited. Judge Dillon, as we shall see later, some time after the text of his work was written, successfully maintained much broader authority for 86 CASES ON MUNICIPAL OH PUBLIC COHPORATIONS [CHAP. in cities. Counsel suggests that if the city can go outside its boundaries for a stone quarry because the corporation needs crushed rock for use upon its streets, it can go to any distance therefor, and that if it caa go into the rock crushing business, it can also go into the business of building rock crushers. That argument, though plausible, lacks the merit of novelty, as will hereafter be seen. As an authority peculiarly in point, we are referred to Duncan v. Lynchburg, 34 S. E. 964, 48 L. R. A. 331, decided in the supreme court of appeals of Virginia. At first glance the case seems to strongly support counsel's side of the con- troversy, but upon a careful study thereof it appears that the powers of the charter of Lynchburg were much less liberal than those of the respondent city. Moreover, we find that the authorities cited do not support the extreme views of the Virginia court. The Lynchburg charter only authorized the purchase of property necessary for city purposes. The charter before us authorizes the pxu'chase of property necessary or convenient for such purposes. The authorities cited by the Virginia court, in the main, bear on the question of exercising gov- ernmental powers outside the city. Those that touch on mere rights of ownership support a view rather contrary to the decision of the court. For example, Riley v. Rochester, 9 N. Y. 64, is referred to. The learned counsel here rely upon that and similar cases. The New York court expressly declined to hold that a city cannot take title to realty outside its limits for any purpose. It held that it cannot do so for the purpose of exercising governmental authority over the same. Coldwakr V. TvLcker, 36 Mich. 474, was cited by the Virginia court and is also relied upon here. That holds that a city may own public works outside its boundaries by implied authority under some circumstances. The rule that a city cannot exercise its governmental authority outside its limits has nothing to do with the case in hand. This court held that it cannot exercise such authority in Backer v. La Crosse, 99 Wis. 414. It at the same time recognized that a city may exercise its mere right to own and use property for legitimate city purposes outside its boundaries. That is very decisively maintained in the following cases, which seem to fully cover the case in hand, so far as decisions in another jurisdiction can do so; People ex rel. Murphy v. Kelly, 76 N. Y. 475; Matter of Application of Mayor, etc., 99 N. Y. 569; Lester v. Jackson, 69 Miss. 887. In the second case cited Judge Dillon appeared for the city of New York and prevailed in the contention that the city possessed power to purchase land outside the city for a park. It was suggested to the court by the opposition, as an indication of the absurd- ity of that doctrine, that if land outside a city can be held for a park, it can acquire property regardless of distance; that if the city of New York can purchase land three miles from its limits, it can go to the Falls of Niagara or to the Adirondack Mountains, and can also build and operate a railroad to the premises acquired, and when its right in the matter is challenged, defend upon the plea of city purpose and implied ■CHAP. Ill] SCHNEIDER V. CITY OF MENASHA et ah. 87 power to subserve the same. That argument was taken seriously by the <;ourt and considered, with the result, based upon reason and authority, that a general grant of power, as regards those matters which do not involve governmental functions, cannot be fenced about by corporate limits; that what constitutes a city purpose within such limits does not change merely by passing beyond the same. This language was used: "The truth is that neither in authority, nor in the legislative practice, nor in the common sense of the question is there any basis for declar- ing that there can be no true and sound municipal purpose which reaches beyond the corporate lines." The undoubted right to purchase a water supply outside the city was suggested, and the instance was pointed to of New York going for such purpose to a distance of forty miles from the city and expending millions of dollars in that regard. After disposing of the primary ques- tion of whether all city purposes end at the corporate limits going out- ward, and commence at such Umits coming inward, the court took up the idea of distance suggested by the illustration given by counsel, and held that power in that regard is limited by the very nature of it; that so long as, considering the end in view, the range of reasonable conven- ience and adaptation to the exercise of the express power is not over- stepped, municipal authority is not exceeded; that when an extreme action shall have been taken, so as to impress the impartial mind of some ulterior purpose, it is time to pause if not to turn backward. That doctrine was indorsed in Lester v. City of Jackson, supra, which was another case of buying land beyond the city Umits for a park. The lan- guage of the court, in substance, was this : A municipal corporation may take and hold land convenient and accessible for a park, although it lies outside the corporate limits, and the charter confers no express authority to own land outside; the city cannot exercise its sovereignty over it, but it can exercise all the rights and powers pertaining to owner- ship. It would not be profitable to examine at length the numerous cases . called to our attention by appellant's counsel to support his view. It seems sufficient to say that, in the main, they hold that municipal au- thority in a governmental sense cannot be exercised outside the limits of the municipality. That is in harmony with the decision of this court, as we have seen. It is also in harmony with the view that municipal ownership may reach beyond corporate limits, as held in the cases to which we have referred. When one draws the distinction between mere right to own property for city purposes and the right to exercise sov- ereign authority over property, the authorities upon which this case was grounded are easily seen not to warrant the result sought. In testing the question of whether a municipality has exceeded its corporate authority in going outside its boundaries in any given case we must first determine the purpose in view. If that be foimd to be 88 CASES ON MUNICIPAL OK PUBLIC CORPORATIONS [CHAP. Ill the exercise of police authority, or authority to govern in any sense, the conclusion must be that the end does not justify the act. If it be found to be the mere exercise of a business function, the conclusion must be that the mere act of going beyond the boundary does not necessarily involve excess of power. In determining whether corporate authority has been exceeded by reason of the distance from the city limits to which the act in question reaches, we must solve that by an appeal to reason and common sense, keeping in mind that municipal corporations, in their business matters, are governed by very much the same rules as private corporations. Washburn Co. v. Thompson, 99 Wis. 585. It comes down in each case to the exercise of mere human judgment. That being the case, there must necessarily be a wide range within which municipal oflBcers, acting in good faith, may go, and not be guilty of such an abuse of power as to render their acts, as acts of the city, void. As suggested in the New York case, they may go to the point where to go further would indicate some ulterior motive, — indicate that a legitimate city purpose was no longer in view. That would be true whether the act done were performed within or without the corporate limits. Manifestly, in purchasing real estate for the convenience of a city, the element of convenience wiU enter into the matter, whether the purchase be made on one side or the other of the boundary line of the corporation. If the agents of the city should go so far from its boundary to obtain land for its use that the element of convenience would be no longer apparent, there would undoubtedly be such an abuse of authority as to render the act void. There is nothing of the kind in this case. It is not questioned, as we understand it, that municipal authority was not exceeded if power existed to purchase land for the purpose of obtaining a supply of crushed rock for usd^ upon the city streets, beyond the city limits, at all. It follows, therefore, that the order appealed from must be affirmed. Order affirmed. 6. Power to Employ Property for Revenue i BATES V. BASSETT * 60 Vt. 630. 1888. Replevin for one cow, etc. Plea that the property was taken by defendant, as collector of taxes on a rate bill and warrant. Judgment for the defendant. It appeared that the town of Barre owned an old town hall in the second story of a building, the lower story of which was owned by an- CHAP. Ill] BATES V. BASSETT 89 other party; that in the winter of 1885, from the accumulation of snow on the roof, the town hall building was crushed in, completely destroy- ing the walls of that part of the second story belonging to the town. The town voted to build a new town hall; and to authorize the select- men to repair the old hall by putting up walls dividing it into several rooms, and to rent the rooms. The votes were carried out. The court found: That the old town hall was not and is not needed or used for any purposes of the town, and that the same was not neces- sary or incidental to any use of the town; that the said old town hall was refitted and repaired by the said town of Barre at an expense of over $2,500, for the purpose of renting the same; that the same apart- ments are now rented to various parties for a term of years by written leases and the town of Barre receives and takes the rent for the same. " We find that it would have been as profitable for the town in the end to have sold their interest in the old town hall instead of repairing and renting it." In regard to the new town hall the court found that the building could have been built for all the suitable and reasonable uses of the town without being buUt in the manner and with the purposes set forth. " It is at the present time a profitable investment; we cannot find whether it will so continue or not. We think a town hall suitable and proper for the town could have been built without building any part or por- tion of it for rental purposes, and as profitable for the town; that the money expended in repairing the old town hall, together with the building of the new town hall and the fitting up of the same with scenery and heating apparatus, both together went in to make up a portion of the indebtedness of said town of Barre for the payment of which a tax was levied against the plaintiff and his property distrained, and was included in the tax so assessed against the plaintiff." The coiui; also found, among other things, that the facts in the following statement, signed by the defendant, were true: That said building so erected by said committee is built of solid brick walls, is two stories high, with basement underneath the whole of said building; that said basement is divided into five apartments or rooms. In one of them is the apparatus for heating the whole building, and the other four are rented to several parties for a term of years. And none of them are required or used by the' town. And while one of them might be used as a storage room for the road machine, spile driver, and other town property, it is found that the same can be housed elsewhere at one-fourth of the rental value of one of said rooms. That the first story of said building was divided intb four apartments or rooms. The first is used as a post office, and a small room finished off in the rear of said office is occupied by the town and village clerk and treasurer, and contains the safe and records of the town; and said room is small, not over twenty feet square, and of little value with the rental of said town, and the fair rental of the town will not exceed $50 per year. 90 CASKS ON MUNICIPAL OB PUBLIC CORPOKATIONS [CHAP. in The annual rental of the first story and basement is about $1,300. The second story of the building is finished off for a town hall, or, as it is generally known, the "Opera Hall." The hall was built and finished off for a town hall and an "opera hall." Several dressing rooms and closets were fitted for the accommodation of theatrical troops. " It is agreed that the old site is centrally located and easily accessi- ble, and that it could have been rebuilt and furnished at an expense to the town of not exceeding $5,000, so that the same would have been as safe and as convenient to the voters of said town assembled in free- man's and town meeting for the transaction of the business of the town as is the new hall, but would not be as convenient, desirable, or valuable to rent for thteatrical, operatic, or other purposes." The new building cost over $29,000. The selectmen purchased scenery for the stage in the hall at an expense of $413.50, and the whole expense of fitting up the stage was $850. The population of Barre is rapidly increasing. The town was obligated to a third party to keep the walls of the second story and the roof of the building in which the old hall was situated in good repair. John G. Wing, for the plaintiff. E. W. Bisbee and S. C. Shurtleff, for the defendant. Powers, J. . . . In this case the town was confronted with a calamity which compelled a choice between building a new town house or re- pairing the old one. It might lawfully do either. It elected to build a new one. The building of the new one was an object of a public character which made taxation for the purpose lawful. Having the power to impose taxation for the new building, the town in legal meet- ing is the only umpire to decide how much it will expend in such build- ing. We do not say that the discretion of the majority of the voters is unlimited in respect to a proposed expenditure for a proper muni- cipal purpose. Cases may be easily conceived where a majority might vote an excessive tax from a reckless disregard of all rules of prudence. But courts do not undertake to set up their own views of the propriety ■of municipal actions as the standard by which to try the action of a town in the exercise of a power lodged with it by the law, but leave the exercise of such power just where the legislature has left it, in the discretion of the voters, until it is seen that the discretion is abused by a willful perversion of the power to illegal ends or abuse of its exercise that demands restriction. The town of Barre might well anticipate its prospective needs in providing itself with a new town hall. It was not tied down to the iron rule of absolute necessity in determining the kind or style of its town hall. But it might build fitly according to its ability and accord- ing to its manifest destiny. It might provide such conveniences and improvements as prudent people customarily employ in the day and generation in which it builds. If steam heating is thought superior to CHAP. Ill] BATES V. BASSETT 91 the old-fashioned fireplace, if the introduction of water into the build- ing conduces to health as well as cleanliness, both manifestly are proper furnishings to the new building. The fitting up of rooms for rent was an expense incidental to the building of the town hall. The town has no right as a primary purpose to erect buildings to rent, but if in erection of its hall for its proper municipal uses, it conceives that it will Ughten its burdens to rent part of its building whereby an in- come is gained, no sound reason is suggested why it may not do so. The true distinction drawn in the authorities is this: If the primary object of a pubUc expenditure is to subserve a public municipal pur- pose the expenditure is legal, notwithstanding it also involves as an incident an expense which standing alone would not be lawful. But if the primary object is not to subserve a public municipal purpose but to promote some private end, the expenditure is illegal, even though it may incidentally serve some public purpose. This is the test where good faith is exercised in making the expenditure. If a public piurpose is set up as a mere pretext to conceal a private purpose, of coiu-se the expenditure is illegal and fraudulent. There is nothing in this case that invalidates the action of the town in building its new town hall. Spaulding v. Lowell, 23 Pick. 71. Having elected to build, the town had on its hands an old building. In the exercise of what seemed to them to be a wise discretion, the voters decided to repair it for rental purposes. This is said to be illegal. It would be, if the primary object was to invest money in a building to rent. The town could not purchase a building for rental purposes solely. But here the town already owns a building purchased or erected for its proper mimicipal purposes. It no longer has use for it for mimicipal piu-poses. Must it sacrifice its property, or may it not do with it what a prudent man would do with such a building? Suppose in a few years its road machine is supplanted by some im- proved machine which it deems it is wise to purchase; could it not keep its old one in repair to rent advantageously to others? It is no answer to say that the town would in the long run be as well off to give away its old building. The question was one for the town to decide for itself and its decision made in good faith is final. The numerous cases cited in the defendant's brief fully support the conclusions here reached. Judgment affirmed. 92 CASES ON MUNICIPAL OK PUBLIC CORPORATIONS [CHAP. Ill 7. Power to Acquire Property Otherwise than by Purchase TOWN OF NEW SHOREHAM v. BALL et ds. J 14 R. I. 566. 1884 DuRFEE, C. J. This is a petition for the new trial of an action of ejectment in which the plaintiff, the town of New Shoreham, recovered a verdict against the defendants, who are the petitioners. The new trial is asked because, as alleged, the court erred in certain rulings and instructions given at the trial, and in refusing certain rulings and in- structions requested by the defendants. The town in proof of title adduced evidence of possession for more than twenty years. It appeared, however, that the premises were not used for municipal purposes, but were part of a larger tract which was for the most of the time in the occupation of tenants of the town. The defendants contended that the town could not acquire title by possession for any other than municipal purposes, and requested the coiu-t so to charge, but the court refused so to charge, and they ex- cepted. The cases cited in support of the exceptions do not go to the point that a town cannot acquire land by possession for other than municipal piu-poses, but only to the point that it is ultra vires for a town to purchase land for other than such purposes. We think this is quite a different proposition; for a town cannot purchase land without expending its moneys, and it has no right to expend its moneys, raised by taxation or otherwise for municipal purposes, for other pur- poses. The acquirement of land by possession does not involve an expenditure any more than does the acquirement of land by deed of gift or by devise; and it has been decided that a gift or devise of land to a town is good, even though the land be given or devised in general terms, and be accepted without any intent to use it directly for muni- cipal purposes. Inhabitants of Worcester v. Eaton, 13 Mass. 371; Sar- gent V. Cornish, 54 N. H. 18; Dill, on Mun. Corp. § 437. Land so given, even when not wanted for municipal purposes, may be applied by sale or lease to the alleviation of municipal burdens.-- It is not necessary to suppose that the possession here, which was maintained under a claim of right, began otherwise than rightfully. Indeed, the cases hold that if land be acquired ultra vires by a corporation, the title passes, never- theless, and cannot be collaterally impeached. Chambers v. City of St. Louis, 29 Mo. 543; Barrow v. Nashville & Charlotte T. C, 9 Humph. 304; Davis v. Old Colony Railroad, 131 Mass. 258; Jones v. Habersham, 17 Otto, 174. We do not think the defendants are entitled to a new trial on the ground first assigned. . . . Petition dismissed. CHAP, in] viDAL et als. v. gieard's ex'rs et ah. 93 8. Power to Execute Trusts VIDAL et ds. v. GIRARD'S EX'RS et als.t ' 2 Howard (U. S.) 127. 1844 Appeal from the circuit court of the United States for the eastern district of Pennsylvania. The appellants, who were heirs at law and next of kin of Stephen Girard, filed their bill against his executors, and other heirs, to set aside so much of his will as devised and bequeathed the property therein mentioned to found and support a college. The devise in question was to the corporation of the city of Philadelphia — " the Mayor, Aldermen, and Citizens of Philadelphia " — in trust for the establishment and support of a college for poor orphan boys. Jones and Webster, for the appellants. Binney and Sergeant, contra. Stoky, J. ... As to the first question, so far as it respects the capac- ity of the corporation to take the real and personal estate, independently of the trusts and uses connected therewith, there would not seem to be any reasonable ground for doubt. The Act of 32 and 34 Henry VIII, respecting wiUs, excepts corporations from taking by devise; but this provision has never been adopted into the laws of Pennsylvania or in force there. The Act of 11th of March, 1789, incorporating the city of Philadelphia, expressly provides that the corporation, thereby consti- tuted by the name and style of the mayor, aldermen, and citizens of Philadelphia, shall have perpetual succession, "and they and their successors shall at all times forever be capable in law to have, pur- chase, take, receive, possess, and enjoy lands, tenements, and heredit- aments, liberties, franchises, and jurisdictions, goods, chattels, and effects to them and their successors forever, or for any other or less estate," etc. . . . Now, although it was in early times held that a corporation could not take and hold real or personal estate in trust upon the ground that there was a defect of one of the requisites to create a good trustee, namely, the want of confidence in the person; yet that doctrine has been long since exploded as unsound, and too artificial; and it is now held, that where the corporation has a legal capacity to take real or personal estate, there it may take and hold it upon trust, in the same manner and to the same extent as a private person may do. It is true that, if the trust be repugnant to, or inconsistent with, the proper purposes for which the corporation was created, that may furnish a ground why it may not be compellable to execute it. But that will furnish no ground to declare the trust itself void, if otherwise unexceptionable; but it will simply require a new trustee to be substituted by the proper court, possess- 94 CASES ON MUNICIPAL OR PUBUC C0HP0KATI0N8 [CHAP. m ing equity jurisdiction, to enforce and perfect the objects of the trust. . . . But if the purposes of the trust be germane to the objects of the incor- poration; if they relate to matters which will promote, and aid, and perfect those objects; if they tend (as the charter of the city of Phila- delphia expresses it) " to the suppression of vice and immorality, to the advancement of the pubhc health and order, and to the promotion of trade, industry, and happiness," where is the law to be foimd which prohibits the corporation from taking the devise upon such trusts, in a State where the statutes of mortmain do not exist (as they do not in Pennsylvania), the corporation itself having a legal capacity to take the estate as well by devise as otherwise? We know of no authorities which inculcate such a doctrine or prohibit the execution of such trusts, even though the act of incorporation may have for its main objects mere civil and municipal government and regulations and powers. If, for example, the testator by his present will had devised certain estate of the value of $1,000,000, for the purpose of applying the income thereof to supplying the city of Philadelphia with good and wholesome water for the use of the citizens, from the River Schuylkill (an object which some thirty or forty years ago would have been thought of transcendant benefit), why, although not specifically enumerated among the objects of the charter, would not such a devise upon such a trust have been valid, and within the scope of the legitimate purposes of the corpora- tion, and the corporation capable of executing it as trustees? We pro- fess ourselves unable to perceive any sound objection to the vaUdity of such a trust; and we know of no authority to sustain any objection to it. Yet, in substance, the trust would be as remote from the express provisions of the charter as are the objects (supposing them otherwise maintainable) now under our consideration. In short, it appears to us that any attempt to narrow down the powers given to the corporation so as to exclude it from taking property upon trusts for purposes confess- edly charitable and beneficial to the city or the pubhc, would be to in- troduce a doctrine inconsistent with sound principles, and defeat instead of promoting the true policy of the State. We think, then, that the charter of the city does invest the corporation with powers and rights to take property upon trust for charitable purposes, which are not other- wise obnoxious to legal animadversion; and, therefore, the objection that it is incompetent to take or administer a trust is unfounded in principle or authority, under the law of Pennsylvania. . . . We are, then, led directly to the consideration of the question which has been so elaborately argued at the bar, as to the vahdity of the trusts for the erection of the college, according to the requirements and regu- lations of the will of the testator. That the trusts are of an eleemosynary nature, and charitable uses in a judicial sense, We entertain no doubt. Not only are charities for the maintenance and rehef of the poor, sick, and impotent, charities in the sense of the common law, but also dona- CHAP. Ill] PHILLIPS et al. V. HAEEOW et ol. 95 tions given for the establishment of colleges, schools, and seminaries of learning, and especially such as are for the education of orphans and poor scholars.' . . . Decree affirmed. PHILLIPS el al. v. HARROW et ai.J 93 Iowa, 92. 1894 Action in equity to set aside the probate of two paragraphs of the •will of P. G. Ballingall, deceased, and to have them decreed to be void and of no effect. Robinson, J. . . . The plaintiffs are heirs of the decedent. The defendants include the executors of the will, the Ottumwa Library Association, the city of Ottumwa, and two persons, one of whom it is supposed may be an heir of the decedent. The city and the two per- sons last designated do not appeal. The will devises to the city of Ottumwa, subject to mortgages thereon and charges specified, the real estate described in the first part of para- graph 9 "in trust " for the purposes specified. The property so devised is to be managed and controlled by three trustees, to be selected by the city council. Among the purposes of the trust are the following: . (1) To provide a sinking fund of twenty thousand dollars for the purpose of rebuilding [devised] property in case of fire and remodelling the [de- vised] hotel building "to suitably keep up with the times and the growth of the city;" (2) to provide a fund of six thousand dollars for the benefit of the public library then established in the city of Ottumwa; (3) to use a part of other funds for the further benefit of the Public Library Association; (4) to aid the poor and needy people of the city of Ottumwa who are dependent upon their own labor for a livelihood; (5) to aid religious societies of the city; (6) to accumulate a fund to build or aid in building and maintaining a foundhng hospital. It is claimed that these purposes, excepting that with respect to the library, are not germane to the objects of the city, and that it has not the power necessary to take the property and execute the trust. It is said in section 55, 2 Dill., Mun. Corp., that "it is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the fol- lowing powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and piUT)oses of the corporation, — not simply convenient, but indispensable. Any fair, reasonable doubt concerning the existence of power is resolved > Contrast Chapin v. School District, 35 N. H. at 456. 96 <;ases on municipal oe public coepoeations [chap, m by the courts against the corporation, and the power is denied." In City of Burlington v. Kellar, 18 la. 65, it is said to be "a well settled rule that the authority conferred upon municipal corporations is to be strictly construed, and must be clearly pursued." This coiu-t has in several cases held that acts of municipal corporations were invalid because not expressly authorized by statute. City of Burlington v. Dankwardt, 73 la. 170, 34 N. W. Rep. 801; City of Chariton v. Barber, 54 la. 360, 6 N. W. Rep. 528; Field v. City of Des Moines, 39 la. 575. But it is said that the defendant has an implied power to take property and execute trusts as provided by the will. Cities and towns organized under the laws of this State have power to "sue or be sued; contract or be con- tracted with, acquire and hold property real and personal, . . . and have such other privileges as are incident to municipal corporations of like character or degree, not inconsistent with the laws of the State." ' Code, section 454. They also have the power to enact ordinances to promote the prosperity, improve the morals, order, comfort, and con- venience of the corporation and of its inhabitants. Code, section 482. They may establish and maintain free public Ubraries, and may receive gifts, devises, and bequests for their benefit. Code, section 461. They may also provide for parks. Acts Twentieth General Assembly, chap- ter 151. Cities of the first class may establish and maintain infirma- ries for the poor, and also distribute to the poor outdoor relief. Code, section 538. There is no provision for the maintenance of foundling hospitals. Yet that contemplated by the will is to be for the special pur- pose of relieving unfortunate females, and protecting and caring for their off -spring; and such persons, when requiring aid, may well be classed as of the poor. Municipal corporations have no power to appropriate or otherwise use pubhc money for the benefit of any institution, association, or ob- ject which is under ecclesiastical or sectarian management. Code, section 552. But, as we have seen, they may do what will tend to pro- mote the prosperity, improve the morals, comfort, and convenience of their inhabitants. The money appropriated by the will for the religious societies is to be distributed among them without regard to sect, and without partiality, the test of distribution being that the recipients be religious societies professing to work for the good and well-being of mankind. It is scarcely necessary to say that the purposes of such socie- ties are miiversally to improve the morals and promote the interests of mankind, and that the work they do is, as a rule, of a nature to accom- plish these purposes. Such purposes are in entire harmony with the objects for which municipal corporations are created, and, while they may not use pubUc money for purposes of that kind, yet it is not incon- sistent with the laws of the State to use money or other property given by private individuals for such purposes, where it is not used to benefit one denomination to the harm of another, or to promote purely secta- rian purposes. CHAP. Ill] PHILLIPS et d. V. HAEKOW et al. 97 Whether Ottumwa was a city of the first class when the will took effect we are not advised, nor is the fact material in this case; for, evea though it had not the power to establish infirmaries for the benefit of the poor, to estabUsh and maintain them was recognized by the law as a proper municipal object, although the right to do so at the public cost was restricted to cities of the first class. It is not, therefore, inconsis- tent with law, but in harmony with it, for municipal corporations to use private funds, given for the purpose, to aid the poor. The requirement of the will that the Ballingall House and the tene- ments connected therewith shall be kept perpetually and that a fund of twenty thousand dollars be provided to preserve the property and make, such improvements in the hotel building as shall be demanded by the growth of the city and the times, is merely a means to preserve the property in a condition to yield a revenue, and thus secure the charitable objects sought to be accomplished by the will. That the name " Bal- Ungall House " should be retained is not inconsistent with such objects, and imposes no burden on the trustee. The obhgation to raise a fund of six thousand dollars for the benefit of a public library is germane to the objects of the city. It was said in Jones v. Habersham, 107 U. S. 188, 2 Sup. Ct. Rep. 336, that a " corporation may hold and execute a trust for charitable objects in accord with or tending to promote the purposes of its creation, although such as it might not by its charter or by general laws have authority itself to establish, or to spend its corporate funds for. A city, for instance, may take a devise in trust to maintain a col- lege, an orphan school, or an asylum." In Vidcd v. Girard's Ex'rs, 2 How. 189, it was said: "If the purposes of the trust be germane to the objects of the incorporation, if they relate to matters which will pro- mote and perfect and aid those objects," and the corporation has the legal capacity to take the estate as well by devise as otherwise, the trust may be assumed and executed by the corporation, " even though the act of incorporation may have for its main object mere civil and muni- cipal government and regulations and powers." See, also, McDonogh's Ex'rs V. Murdoch, 15 How. 367; Attorney General v. Parker, 126 Mass. 221; Perrin v. Carey, 25 How. 465; Davis v. Inhabitants (Mass.), 28 N. E. Rep. 165; 2 Dill, Mun. Corp. § 437 et seq. It is said that the Ottumwa Library Association is a private corporation, and hence that donations to it are not in the nature of public charities. It was organ- ized as a private corporation, but not for pecuniary profit, and it has never been conducted for that purpose. Persons may become subscrib- ers for a fixed time by paying a prescribed fee, and are then entitled to take books from the Kbrary without the payment of other fee, but non- subscribers are required to pay ten cents for each book they take away. In the use of books and periodicals in the library rooms, no distinc- tion is made between subscribers and non-subscribers. Fines^ are im- posed for the violation of rules and for damage done to books. But the money collected from these and all other sources is used to maintain the 98 CASES ON MUNICIPAL OH PUBLIC COBPOEATIONS [cHAP. m library and to purchase books. The objects of the association are in all essential respects for public welfare, and are charitable. See Quinn v. Shields, 62 la. 135, 17 N. W. Rep. 437; 2 Perry, Trusts, § 687. We conclude that the purposes of the trust created by the will are charitable, that they are germane to the objects for which the city of Ottumwa was organized, and that it has power to accept the property devised to it by the will, and to execute the trust thereby created. . . . SARGENT V. TOWN OF CORNISH 54 N. H. 18. 1873 Jacob Foss, by his will, gave to the town of Cornish the sum of $1,000, for the purposes and on the conditions in said will expressed, as folows: " I give and bequeath to the town of Cornish, N. H., my native place, for the purpose of perpetuating the ' United States flag,' that the stars and stripes of which may remind the inhabitants of their bounden duty to themselves and their fellow-citizens of the whole United States to so act in harmony with right and justice that no occasion will occur to disturb our peace and tranquility in all coming time, the sum of one thousand dollars, on condition that the same be accepted, and invested by the said town so as to yield an income of not less than six per centum per annum, which income shall be invested yearly in 'United States flags,' to be used within the said town on all proper occasions; and it is my wish that they shall be used often enough so that not more than two years' purchases shall be on hand at a time. If the said town does not accept of the above named legacy, or should fail to carry out fully the above condition, then I give and bequeath the said sum of one thousand dollars to my late sister Deborah's children, to be divided equally be- tween them, or, if they are deceased, to their legal heirs." The will was duly proved and allowed. The town voted to accept the legacy, and an ofiicer was appointed to take charge of the fund and see to its application. The executor of said will paid to said officer the sum of $940, being the amount due after deducting $60 United States in- ternal revenue tax. This fund was invested immediately by said officer at six per cent interest, which interest has been regularly received,, being payable September 14 of each year. On July 1, 1868, said officer or trustee expended, of the income accruing up to that time, $85.59 for flags, including flag-staifs and the necessary ropes and fixtures for operating the same, and the labor pertaining thereto, leaving a balance unexpended, at that time, of $27.21. In 1869 said trustee < CHAP. Ill] SARGENT V. TOWN OF C0RNI8H 99 in the same way 181.35 of the income. In 1870 said trustee expended $28.50 for flag, and $34.37 for pole, ropes, and putting up the same; 1871, for flag, $28.80; 1871, for pole, ropes, and labor, $28.10; 1872, paid for flag, $34.25; 1871, paid for fixtures, putting up, and expense of get- ting, $15.60; — and which flags have been placed in different parts of the town where Kkely to do the most good. The amount of interest received up to the commencement of the action was $56.40 per year. The action is indebitatus assumpsit on the general counts, and the plaintiffs are the persons who would be entitled to the fund if forfeited by the town's failure to perform the condition of the will. The questions of law arising on the above case were reserved for the full bench. Flanders, for the plaintiffs. Cushing, for the defendants. Foster, J. Municipal corporations may be the objects of public and private bounty. Legacies of personal property, directly to the cor- poration for benevolent or public piu"poses, are vaUd in law, in the ab- sence of disabling or restraining statutes. Dill., Mun. Corp. § 436. Towns in this State "may purchase and hold real and personal es- tate for the pubUc uses of the inhabitants." Gen. Stats., ch. 34, § 3. Not only may municipal corporations take and hold property in their own right, by direct gift, conveyance, or devise, but such corporations, at least in this country, are capable, unless specially restrained, of taking property, real and personal, in trust, for purposes not foreign to their institution, and not incompatible with the objects of their organization. And equity will compel such corporations to execute any lawful trusts which may be reposed in them. 2 Kent's Com. *279, *280; Dill., Mun. Corp. §§ 437 and 443, and cases cited in notes; Perry on Trusts, §§ 42, 43; Vidal v. Girard's Executors, 2 How. 127; Perin v. Carey, 2A How. 465; Trusteesv. Peaslee, 15 N. H. 331; Chapin v. School District, 35 N. H. 445; The Dublin Case, 38 N. H. 459. [The court then quoted from the opinion in Vidal v. Girard's Executors.] These remarks indicate the views of that eminent jurist [Judge Story] that the scope of the purposes of a municipal organization is exceedingly broad and comprehensive. It is manifest that a municipal or other corporation should not be permitted to take and execute trusts for objects "utterly dehors the purposes of the incorporation;" but we fail to recognize any reason why its capacity in this respect should be limited to objects technically denominated charities or pious uses, or to religious or educational purposes; or, indeed, why it should be cir- cumscribed by any other limitations than such as should exclude in- consistent, incompatible, and improper objects. It would seem to be impossible to prescribe in definite terms the almost innumerable objects of a liberal bounty, with which a town might be advantageously and happily endowed, directly or in trust. It would probably be agreed by all, that a town in this State may hold property 100 CASES ON MUNICIPAL OH PUBLIC COEPOKATIONS [cHAP. HI in trust for educational purposes. And what are they? Not merely the means of instruction in grammar, or mathematics, or the arts and sciences, but all that series of instruction and discipUne which is in- tended to enlighten the understanding, correct the temper, purify the heart, elevate the affections, and to inculcate generous and patriotic sentiments, and to form the manners and habits of rising generations, and so fit them for usefulness in their future stations. And the means of education are not solely books and printed rules and maxims, but representations and symbols and pageantry, it may be. And it may be questioned if the youth of the land do not derive more of instruction in the holy duty of patriotism and love of country from bonfires and illuminations and the display of the old flag of our Union, than from books on the science of government or political econ- omy, or commentaries on the constitution. Generous men endow oiu* towns with funds for the maintenance of soldiers' monuments; and every "decoration day" we place flowers upon soldiers' graves; and suspended in the capitol are the flags of noble regiments — from their tattered folds drop eloquent eulogy for the dead, and lessons from their example for the instruction and emulation of the living; and we do not regard any of these things as foreign to the pur- poses of, nor inconsistent with, our State or mimicipal organization or policy. The purpose declared by the testator was the perpetuation in his native town of the "United States flag," to "remind the inhabitants of their bounden duty, to themselves and their fellow-citizens of the whole United States, to so act in harmony with right and justice that no occasion will occur to disturb our peace and tranquility in all coming time." This purpose is certainly patriotic and good. The intention of the testator seems to have been "to educate the rising generation of Cor- nish to patriotic impulses." The legal status of a charity is not deter- mined by its practical results, which can seldom be foreseen, and "this court cannot say, judicially, that the means adopted by the testator are not adapted to effect his patriotic piu-pose." Though not directly within the scope of the more appropriate duties and powers of towns, this bequest and trust, certainly, is not repugnant to the general object of such corporations, and with slight change of phraseology the language of Perley, C. J., in the Dublin Case, may well foe appUed to the present: "Towns in this State are to be regarded as a co-ordinate branch of the government, estabhshed to advance the gen- eral good of the people; and under our constitution no one can entertain a doubt that to maintain (and cherish love for the Union of the States) is an object quite consistent with the general purposes for which towns are created, and that towns have, at least, an indirect interest in pro- moting (patriotism) within their limits." . Our conclusion is, that the town of Cornish possesses legal capacity CHAP. Ill] DRUET et ds. V. INHABITANTS OF NATICK d d. t 101 1 * V V ^^' to take and hold the testator's bounty in trust for the purposes declared by his will. /.*: We are of the opinion that the case discloses a practical and sub- stantial compliance, by the town, with the condition, upon the per- formance of which the vesting in them of the legacy depends. Since the town, though capable of holding the fund for the purpose designated, has not the power of raising money by taxation for the pur- pose of executing the trust, it can only make the fund available by appro- priating a portion of the income to expenses necessarily incidental to the use, and without which the legacy and the trust must fail. The testator, knowing the law, and intending, of course, to make a valid bequest, must have also understood and intended (since he pro- vided no additional fund for the purpose) that the government tax should be paid out of the fund, and that a portion of its income should be appropriated to the furnishing of the indispensable appurtenances and paraphernalia without which the flags could not be displayed. If the bequest here is a charity, or analogous thereto, it must receive that liberal construction which courts, whether of law or of equity, employ in such cases — Snell's Equity, 90; and perhaps, if it were necessary, in order to support the testator's design, the doctrine of ci/ pres might be put in requisition. At any rate, the will is to have a reasonable and not necessarily an exactly Uteral construction, to effectuate the manifest intention of the testator. , . . Case discharged. - DRURY et ds. v. INHABITANTS OF NATICK et alt 10 Allen {Mass.), 169. 1865 Bill in equity by trustees chosen by the town of Natick, under the provisions of the will of Mary Ann Morse, seeking instructions as to their duty. The will devised real and personal estate to the town " for the pur- pose of founding and estabhshing" "for the use and benefit of all the inhabitants of said town," a free library, and, if the funds should prove sufficient, a free reading-room. The institution was to be controlled by trustees chosen by the town. The will contained the following clause: " Seventh. Said town of Natick shall forever pay all the expenses of the care of said library and reading-room, including the librarian's salary, and shall keep said building and grounds in good repair and order, and shall also keep said building and library insured against loss or 102 CASES ON MUNICIPAL OE PUBLIC COKPORATIONS [cHAP. lU damage by fire; and in case they shall be destroyed or damaged by fire, the money accruing from said insurance shall be appropriated for re- building, repairing, and re-establishing the same." It appeared from the bill and answer that the will was admitted to probate in August, 1862, and on the 6th of April, 1863, the town of Natick voted to receive and accept the said bequest, and chose the plaintiffs as the five trustees to take care of the same, who accepted the trust; and on the 4th of April, 1864, the town reconsidered said vote, and voted to decline to receive said bequest, and chose a committee of three to relinquish and release all its right, title, and interest therein. The answer of the defendants averred, amongst other things, that the estate of the testatrix proved so small that it would not be beneficial to the town to accept the same, with the burdens imposed by the will. The defendants were the town of Natick and the heir at law of the testatrix. The case was reserved by Gray, J., upon the bill and answer, for the determination of the whole court. J. G. Abbott & J. W. Bacon ((?. B. Perry with them), for the plaintiffs. H. W. Paine & T. H. Sweetser, for the defendants. Geat, J. . . . This gift to the town of Natick to establish a Ubrary for the use of all the inhabitants was therefore clearly a'public charity. The capacity of a city or town to take and hold devises and bequests for appropriate charitable uses is perfectly well settled. Vidal v. Girard, 2 How. 190; Perin v. Carey, 24 How. 505; White v. Soidh Parish in Braintree, 13 Met. 506; Nourse v. Merriam, 8 Gush. 19; Webb V. Neal, 5 Allen, 575. Indeed, the statutes of the Commonwealth in terms authorize towns to hold real and personal estate "for the public use of the inhabitants," or "in trust for the support of schools and for the promotion of education within the limits of the town;" and "to receive, hold, and manage any devise, bequest, or donation, for the establishment, increase or maintenance, of a public library within the same." Gen. Stats., eh. 18, § 9; ch. 33, § 9. The devise and bequest to the town of Natick vested in the town from the death of the testatrix, subject to be renounced by the town within a reasonable time and before manifesting an intention to accept it. Totomon v. Tickell, 3 B. & Aid. 31; Doe v. Smyth, 9 D. & R. 136, s. c. 6 B. & C. 112. Ex parte Fuller, 2 Story R. 330. The town in April, 1863, at a meeting duly called for the purpose, voted to accept and receive this gift, and chose trustees to take charge of it according to the will. Upon such acceptance, the power to renounce the gift ceased, and the estate could not pass from the town without a conveyance in due form of law. Besides, the gift being for a charitable purpose, and once accepted, could not afterwards be renounced or conveyed away, so as to defeat the charity. American Academy v. Harvard College, 12 Gray, 551; Harvard College v. Society for Theological Ediication, 3 Gray, 280; At- CHAP. Ill] DHUET et ds. V. INHABITANTS OF NATICK et d. 103 tomey Generd v. Christ's Hospitd, 1 Russ. & Myl. 626, s. c. Tamlyn, 393; Attorney Generd v. Caius College, 2 Keen, 163. The town could not by such acceptance bind itself to appropriate money to the support of the charity beyond the limit prescribed by the statute, which provides that towns may " appropriate money annually for the maintenance or increase of a public library a sum not exceeding fifty cents for each of its ratable polls in the year next preceding that in which such appropriation is made." Gen. Stats., ch. 33, § 9. It is unnecessary, for the decision in this case, to consider whether the town can, by accepting a charitable gift for such a purpose, bind itself in advance to appropriate money to its support, or whether the sum to be so voted must be determined by annual vote of the inhabitants from time to time. It is not to be presumed that the town will fail to carry out, to the extent of its legal powers, the wishes of its benefactress. The provision in the will for the payment by the town forever of all expenses of this charity and of repairing and insuring the building and library, even if [not?] subject to the vote of the town from time to time, does not invalidate the gift, nor forfeit the estate upon non-compliance with this provision, nor enable the town to renounce the gift at pleasure, after having once accepted it. This provision is not in the form of a condition, but of a direction. If it were in the strictest form of a condi- tion, then so far as it undertook to impose obligations upon the town for the future, which it could not by law assume, it would be repugnant to the grant and void. Nourse v. Merriam, 8 Cush. 11; Attorney Generd v. GremhiU, 33 Beav. 193; 2 Bl. Cam. 156. . . , 104 CASES ON MUNICIPAL OB PUBLIC COEPOEATIONS [CHAP. IV CHAPTER IV Public Easements 1. How Established VANN, J., IN CITY OF COHOES v. DELAWAEE, ETC., CANAL CO. 134 N. Y. 397, at 402. 1892 Public highways may be created in four ways: 1. By proceedings under the statute. (2 R. S., 8th ed., p. 1372 et seq.; also p. 1383, § 100.) 2. By prescription, or where land is used by the public for a high- way for twenty years, with the knowledge, but without the consent, of the owner. The presumption of a grant of the right of way springs from the mere lapse of said period of time in connection with the ad- verse user by the public.^ 3. By dedication through offer and implied acceptance, or where the owner throws open his land intending to dedicate it for a highway, and the public use it for such a length of time that they would be seriously inconvenienced by an interruption of the enjoyment. This rests upon the principle that the owner is estopped from revoking his offer after the public have acted on it for so long a period that it would be a fraud upon them if he were permitted to do so. No particular length of time is required to effect such a dedication, as every case of an estoppel in -pais necessarily depends upon its own facts. 4. By dedication through offer and actual acceptance, or where the owner throws open his land and by acts or words invites accept- ance of the same for a highway, and the public authorities, in charge of the subject, formally, or in terms accept it as a highway. In the absence of an actual conveyance the owner does not part with his title to the land, but only with the right to possession for the purpose of a highway. ' Some authoritiea deny that technical prescription can apply to support a public easement; for prescription involves the presumption of a grant, and the unorganized public is not capable of taking by grant. See AngeU on Highways (3d ed.), § 131, and cases cited. But the weight of authority appUea, under the term prescription, an analogous presumption, first stated by Shaw, C. J., in Reed v. Northfield, 13 Pick. 94, at 98, as follows: "Public easements, as well as others, may be shown by long and uninterrupted use and enjoyment, upon the conclusive legal presumption from such enjoyment, that they were, at some anterior period, laid out and established by com- petent authority." Angell on Highways (3d ed.), p. 144, and oases cited. CHAP, IV] GEDGE et ols. V. COMMONWEALTH 105 GEDGE et als. v. COMMONWEALTH 9 Bush {Ky.) 61. 1872 Prtob, J. W. K. Wall on the 12th of August, 1852, conveyed to the President, Directors, and Company of the Covington & Lexington Raihoad a small parcel of ground, situated in Harrison County and adjacent to the town of Cynthiana. The land conveyed, to use the language of the deed, was "to be held by the raihoad company for the purposes of a depot for said road for freight and passengers and the necessary buildings pertaining thereto, including a street thirty feet wide on the east and west sides thereof, to be kept open for public use, but not to be used for sale to or speculation with others, or as lots or depot for live-stock." The railroad company took possession of the ground under the conveyance, and have been using it in con- junction with the public since the year 1854. This use consisted in the constant travel over the ground with horses, wagons, cattle, and persons having business at the railroad depot. The thirty feet of ground designated as the street by the conveyance referred to was never marked or staked off either as a street or road, and was never used or traveled over at any time, from its beginning at Bridge Street to its termination at or near the stock-pens. The use the public made of this thirty feet was in crossing it in order to get to the depot. The raihoad company constructed a switch leading from the main tract over the groimd, or a part of it, embraced in the deed from Wall, so as to obstruct the travel upon the thirty feet of ground designated as the street. The grand jury of Harrison County, at the September term, 1871, of the Circuit Court, found an indictment against the appellants, charging them with having erected and continued a nuisance in and across a pubUc street and highway in the town of Cynthiana, in the county of Harrison, etc. The nuisance complained of coi^sists in the construction of the switch by the railroad comiJS,ny aheady described. The case was tried by a jury, resulting in a verdict and judgment against the appellants for four hundred dollars. The court having refused them a new trial, the case is now here on appeal. It appears from the evidence in the case that neither the town of Cynthiana nor the County Court of Harrison County had ever ac- cepted the dedication made to the public by Wall by any entry of record, nor in any other manner whatever, unless the mere user by the public in crossing this thirty feet of ground in order to reach the depot will imply such acceptance. The deed from Wall establishes the dedication of the ground for public use, and the only question to be considered is. Can the Commonwealth maintain an indictment against the railroad company for a nuisance in obstructing its way created by the grant from Wall in the absence of any other acceptance by the 106 CASES ON MUNICIPAL OK PUBUC CORPORATIONS [CHAP. IV public than the mere user in crossing it? The right in Wall to make the dedication of the ground to be used as a street or highway is un- questioned, but such a dedication does not compel the town of Cyn- thiana to improve the street or keep it in repair. If the act dedicating the land makes it a street or highway, then it is within the power of any person to compel a town or county to improve or keep in repair a highway, whether desired or not. There must be some acceptance of the dedication, by the town if a street, or by the county court if a public road, before an indictment can be maintained against those whose duty it is to keep the street or road in repair, or against one or more for a nuisance in obstructing the travel, etc. If the mere travel on or across a way is a sufficient acceptance by the pubhc of the dedi- cation made, then every passway used by the pubUc would be con- verted into a highway, and the county or town authorities hable for failing to keep them in repair. A road or street dedicated to the public must be accepted by the county court or town, either upon their records or by the continued use and recognition of the ground as a highway for such a length of time as would imply an acceptance. The con- tinued use of a road by the public for fifteen years or more,^ with the exercise of power on the part of the county court over it by appoint- ing overseers, etc., would constitute it a highway; and where a dedica- tion has been made of the ground by deed, as in this case, the marking out of the street by order of the town authorities, connected with its use by the public as a street, would be an acceptance of the grant. In the case of the State of Maine against Bradbury it is said that a way by dedication of the owner of the land does not become a pubUc high- way without user for twenty years, or an acceptance on the part of the town. In the case of Curtis v. Hope (19 Conn.), it was held "that to create a highway by adoption the road must be accepted by the pubUc." In the case of WiMoughby v. Jenks (20 Wendell), "that when a street is dedicated to the public it must be accepted or recognized by the local authorities as a pubUc street." In Oswego v. The Oswego Canal Co. (2 Selden, 257) it is said " that anyone may lay out a way or thoroughfare through his own land, and may dedicate it to the public use, but such dedication does not confer upon the town in which the land lies the duty of improving or keeping it in repair," for the reason that there must not only be a dedication, but an acceptance also. In the present case the ground, or the most of it, conveyed by Wall to the railroad company was left vacant and uninclosed from the year 1854 until the year 1868, and during this whole period the public used the ground of the company as much as they did the thirty feet of ground dedicated for the street. The entire open space was used by the public in their ingress and egress to and from the depot and cattle- pens of the company. The ground in controversy had never been 1 This ia the period of the statute of limitations in Kentucky tor the recovery of leal property. G. S. ch. 71, art. 1, § 1. CHAP. IV] THE PEOPLE V. REED et ol. 107 even maxked out or used as a street by the trustees of the town of Cynthiana, and no acceptance by them, either expressly or by implica- tion, of the dedication. The fact of the town limits having been ex- tended so as to embrace the ground where the switch was constructed is not an acceptance of the benefit of the grant from Wall; and if the acceptance had been shown, still, as there was no street marked out or used by the public on the ground designated, this indictment could not be sustained against the appellants for the obstruction complained of. For the reasons indicated the judgment of the court below is re- versed, and the cause remanded with directions to award to the appel- lants a new trial, and for further proceedings consistent herewith.^ THE PEOPLE V. REED et d* 81 Cal. 70. 1889 This action was brought by the people on the relation of the mayor of the city of San Jose, to declare a certain strip of land to be a public street, to compel the defendants to remove certain buildings there- from, and to enjoin them from maintaining said obstructions, and from setting up any claim of right to maintain the same thereon. The court found facts substantially as follows: In 1862, one Reed caused a plan or map of his land and land of ad- joining owners to be made, which platted it into streets, lots, and blocks. This plan was never recorded. Reed exhibited it, however, to persons interested in the property, and made conveyances and leases of lots owned by him by reference to it. Some of the proposed streets were afterward opened. Divine Street, which, as marked out in the plan, ran between three pairs of proposed blocks on Reed's land, was opened by the abutters, except between the middle blocks; it was never opened beween those blocks. No sales of lots were made in those blocks; and, in 1867, Reed conveyed them, including the proposed section of Divine Street, as one parcel. The defendants have become the owners. In 1884, more than twenty years after the map was made, and after the land had come to be occupied with buildings and fences, the city passed an ordinance declaring that the strip of land in contro- versy "be and the same is hereby dedicated and set apart to public use as a public street forever," and instructing the street commissioner 1 Accord (acceptance must be by the municipal authorities): Kelly's Case, 8 Gratt. 632; Attorney General v. Morris, etc., R. Co., 19 N. J. Eq. 386: Bowers v. Suffolk Mfg. Co., 4 Gush. 332. 108 CASES ON MUNICIPAL OK PUBLIC CORPORATIONS [cHAP. IV to demand possession thereof, and if possession was given, to remove all obstructions therefrom, and throw the same open to public use as a street of said city; and directing the city attorney, if possession were refused, to institute proceedings to recover the same for the city as a pubUc street. The coiu-t below concluded that the land had been dedicated as a pubKc street, and gave judgment for the plaintiff. Defendant appealed. W. Matthews, for appellant. Attorney General Johnson and D. W. Herrington, for respondent. Works, J. ... In an early case this court said: "In dedication, no particular formality is necessary. It is not affected by the statute of frauds. It may be made either with or without writing, by any act of the owner, such as throwing open his land to public travel, or plat- ting it and selling lots bounded by streets designated in the plat, thereby indicating a clear intention to dedicate; or an acquiescence in the use of his land for a highway, or his declared assent to such use, will be suiBcient; the dedication being in most, if not all, of the cases* by matter in pais, and not by deed. The vital principle of the dedication is the intention to dedicate; and whenever this is unequivocally mani- fested, the dedication, so far as the owner of the soil is concerned, has been made. Time, therefore, though often a very material ingredient in the evidence, is not an indispensable ingredient in the act of dedica- tion. If accepted and used by the public in the manner intended, the dedication is complete, — precluding the owner and all claiming in his right from asserting any ownership inconsistent with such use. Dedication, therefore, is a conclusion of fact to be drawn by the jury from the circumstances of each particular case; the whole question, as against the owner of the soil, being whether there is sufficient evi- dence of an intention on his part to dedicate the land to the public use as a highway." Harding v. Jasper, 14 Cal. 647. It is well settled by the decisions of this court that the making and filing of a map, designating certain streets thereon, is only an offer to dedicate such streets to the pubUc, and that the dedication does not become effectual and irrevocable until the same is accepted by the public. Hayward v. Manzer, 70 Cal. 476; Harding v. Jasper, 14 Cal. 647; Sanderson v. Calderwood, 31 Cal. 588; San Francisco v. Canavan, 42 Cal. 552; People v. Williams, 64 Cal. 502. But it is not the mere maldng of the map, or its delivery or exhibi- tion to private individuals, that constitutes the offer of dedication to the public, but the filing; and where the right to claim the street by the public rests upon the map alone, there is no offer to be accepted until the same is filed for record. It may be otherwise with private individuals who have purchased some of the property on the faith of the map designating the streets, r but this must be solely on the ground of estoppel, resting upon the rep- CHAP. IV] THE PEOPLE V. EEED et ol. 109 resentations made whereby parties have been induced to purchase on the faith of the imphed statement that the designa,ted streets were to be and remain open for pubUc use. Such individual purchasers may, if it be shown that they acted on such representations, compel the opening of the streets, but if they do not, the public has no ground of complaint. No dedication or offer of dedication has been made to the pubUc, and it is not an interested party. It is conceded by counsel for respondent that the portion of the street in controversy "has never been opened as a street," and that "on it the defendant had maintained a barn and shed and kept it in- closed with substantial fences for more than twenty years before this suit." They take the position, however, that where the owner surveys and plats his property, and makes sales of lots with reference to such plat, the streets designated thereon are irrevocably dedicated to the public as streets. There are authorities sustaining this position.^ Bartlett v. Bangor, 67 Me. 464; CaHer v. Mason, 4 Or. 339; Stone v. Brooks, 35 Cal. 494; Grogan v. Hayward, 6 Saw. 498; Dill., Mun. Corp., 3d ed., § 640. But it is manifest that no such rule can prevail in this State, where it has been uniformly held that the owner may, at any time before his offer of dedication is accepted by the public, withdraw the same. As between him and the public, therefore, his act alone is not suffi- cient to constitute an irrevocable dedication. As we have said, it may be different as between him and private individuals to whom he has made sales of property with reference to the map. Much of the con- fusion in the decided cases has, in our judgment, grown out of the failure to distinguish between the right of the public authorities to claim a dedication and the right of a purchaser to compel the opening of a street on the ground of estoppel. Holdaw v. Trustees, etc., 21 N. Y. 474; Child v. Chappel, 9 N. Y. 257. In the case of Grogan v. Hayward, 6 Saw. 498, reUed upon by the respondent, which was an action by a private individual, this distinction is clearly made. If the pur- chaser of property asserts his rights, the result may be the same, as to the mere keeping open of the street, as if a dedication is claimed by the pubhc; but it does not follow that if he waives his right, the public can assert it, nor can the purchaser, by asserting his right to an open « The following is quoted from Bartlett v. Bangor, 67 Me. at 464-5: "When the owner of land within or near a growing village or city divides it into streets and build- ing lots, and makes a plan of the land thus divided, and then sells one or more of the lots, by reference to the plan, he thereby annexes to each lot sold a right of way in the streets, which neither he nor his successors in title can afterwards interrupt or destroy. And we think reason and the weight of authority are in favor of holding that such a platting and selling of lots constitute an incipient dedication of the streets to the public, which the owner of the land cannot afterward revoke. The dedica- tion is not complete, and will impose no burden upon the public, till the streets are accepted by competent authority, or the public has used them for at least twenty years. But so far as the owner of the land is concerned, such acts constitute a proposition to dedicate, which he cannot afterward withdraw. Platting alone will have no such effect; but platting and selling will. There are dicta to the contrary, but the later and better considered cases hold to this view." See cases cited. 110 CASES ON MUNICIPAL OH PUBLIC CORPORATIONS [CHAP. IV ■way, impose on the public the duty of keeping a street in repair that has never been accepted. The case of San Leandro v. Le Breton, 72 Cal. 172, seems to overlook this plain distinction between the right of a purchaser and the public, but there it appeared that there was an acceptance by the public au- thorities, so that, so far as the opinion can be construed as militating against the rule above laid down, it is a mere dictum, and should have no weight. Therefore, conceding that a platting of property and sale of lots constitute a dedication, as between the owner and purchasers under him, of the streets delineated on the map, in order to constitute a dedication which can be taken advantage of by the public authori- ties of a city, the offer of dedication must have been accepted by such authorities, either by user or some formal act of acceptance. Hardr ing V. Jasper, 14 Cal. 647; Hayward v. Manzer, 70 Cal. 476; Sanderson V. Calderwood, 31 Cal. 588; San Francisco v. Canavan, 42 Cal. 552; People V. Williams, 64 Cal. 502; City of Galveston v. Williams, 69 Tex. 449; State v. Trask, 6 Vt. 355; 27 Am. Dec. 554, 563; Gilder v. City of Brenham, 67 Tex. 345; Cook v. Harris, 61 N. Y. 448; Briel v. City . of Natchez, 48 Miss. 423; Field v. Manchester, 32 Mich. 279; Hamilton v. Chicago, 124 111. 235; Fisk v. Tovm of Havana, 88 111. 208. Nu- merous other cases to the same effect might be cited. Such acceptance must be within a reasonable time after such offer of dedication, and if not accepted, the owner may resume the posses- sion of the property and thereby revoke his offer. Hayward v. Manzer, 70 Cal. 476; State v. Trask, 6 Vt. 355; 27 Am. Dec. 554, 566; Field v. Manchester, 32 Mich. 279; County of Wayne v. Muller, 31 Mich. 447. In this case there was no use of the street, and no attempt to accept the dedication by formal act of the public authorities for more than twenty years. This was not within a reasonable time, as shown by the authorities cited above, and therefore came too late. But if this were not so, we think the ordinance passed by the com- mon council of the city was not in any sense an acceptance of the dedi- cation. It did not refer to the appellant or his alleged dedication of the street. As was well said in the former opinion, it appears more like an attempt to take private property for public use without compensation than an acceptance of the street. There was neither a dedication to nor an acceptance by the public in this case. Littler v. City of Lincoln, 106 111. 353; Kennedy v. Mayor, etc., 65 Md. 514. Judgment reversed, with instruction to the court below to conform its conclusions of law to the views expressed in this opinion, and to render judgment on the findings in favor of the defendant. McFakland, J., Sharpstein, J., Fox, J., Paterson, J., and Beatty, C. J., concurred. Thornton, J., dissented. CHAP. IV] ATTORNEY GENERAL V. ABBOTT 111 ATTORNEY GENERAL v. ABBOTT 154 Mass. 323. 1891 Information, filed August 17, 1887, by the Attorney General, to prevent the defendant from interfering with Ocean Park, Hartford Park, and Waban Park, so called, in Cottage City, to which he claimed title under a deed from the Oak Bluffs Land Company, dated April 28, 1885. The case was heard in 1889, by Field, J., upon the pleadings and evidence reported by the commissioner and special master, and was reserved by him for the consideration of the full court, such decree to be entered as justice might require. The facts appear in the opinion. The case was argued at the bar in October, 1890, and afterwards, in June, 1891, was submitted on the briefs to all the judges. J. D. Ball & G. C. Abbott, for the defendant. T. M. Stetson & H. M. Knowlton, for the Attorney General. Allen, J. A perusal of the voluminous evidence, aided by the full briefs of counsel, shows to our satisfaction that there was an intention on the part of the owners of the parcels of land called Ocean Park, Hartford Park, and Waban Park to dedicate them to the use of the public as parks, and that the same were used by the public enough to show an acceptance thereof prior to the year 1880. It will not be useful to state in much detail the evidence which leads to these results, or to discuss the particulars in which witnesses disagree or contradict each other. The general features, however, are as follows: In 1866, six persons united in a plan for making a place of summer re- sort at Oak Bluffs in Edgartown, One of them already owned a large lot of vacant land which was deemed suitable for the purpose. Each of the five others purchased an undivided sijrth part thereof. A pro- fessional landscape gardener, Mr. Copeland, was employed to lay out the grounds in such a manner as would be likely to attract people who should come there only for the summer, and to induce them to buy lots, build cottages, and establish a village. In 1867 a deed of the premises was made to two of their number, as trustees for the benefit of the six owners; and in 1868 an act of incorporation was obtained, and the land was conveyed to the corporation. . . . It is not necessary to go nicely into the question at what time the in- tention to devote these open spaces to the public became fully formed. There certainly was an intention that some spaces should be left open at an early day. Before the corporation was created a plan showing such spaces was prepared and put on record. Some changes were afterwards piade in the boundaries. The land containing Waban Park was subse- quently purchased. The limits of these three several open spaces were finally settled after the corporation was formed. For a time there was a somewhat fluctuating intention, so far as limits and boundaries were 112 CASES ON MUNICIPAL OB PUBLIC COKPOEATIONS [CHAP. IV concerned. But the limits as shown on the last two plans may be taken as representing the final conclusion of the corporation as to the limits of the spaces that were to be left open. The fact that not much was done to adorn these spaces, and that the corporation itself did whatever was done in this respect, and to some extent assumed to exercise a certain control over the land, is not of much weight in opposition to the conclusion to which we have come. The chief element of a pubHc park in such a place, at least till the village is well settled, is to have the land kept open. The adornment would natiu-ally come later, if at all. The corporation did a little towards improving and caring for these open spaces. It had some interest in doing so. Ordinarily, when parks are established for public use, the municipal authorities exercise control over them. Washburn on Ease- ments, 146, 147, 156. It was not so here. Whatever was done was done by the corporation, which to some extent did what municipal authorities usually do. The corporation was interested in pushing its speculation, and as long as it had many lots left for sale it did something for the parks; but afterwards they were much neglected. ;; On the whole, we think the evidence is sufficient to show an oifer to the public of the spaces shown on the last two plans as Ocean Park, Hartford Park, and Waban Park. In Attorney General v. Whitney, 137 Mass. 450, where a majority of the court thought there was not suffi- cient evidence of such an intention, the evidence of dedication was far less strong. The acceptance of such a dedication at common law need not appear of record, and need not be by the town. The acceptance is by the public at large, and the principal thing to show it is use by the public. Wash- hum on Easements, 128, 139, 140. There is no need of a formal grantee. The fee remains in the original owner. Cincinnati v. White, 6 Pet. 431. No assent of the town is necessary, because no burden is put upon the town, as in the case of a way. The improvements upon a park thus dedicated are left to be made by those who are interested. The town may take it up, or it may be left to individuals. If in a seaside summer resort no improvements at all are made, there will still be some benefit from having a space left for air, and for an open, unobstructed prospect Whether the easement of a public park could be accepted merely by enjoying an unobstructed view over it of the ocean, need not be con- sidered. Various other acts of use of all the parks are shown, sufficient to show an acceptance of them by the public. Such acceptance need not be very specific. The defendant contends that such acceptance must have been by the town of Edgartown originally, or by the town of Cottage City after- wards. The chief argimnent in support of this view is, that there must be somebody who can be held responsible for the abatement of a nuisance, if one should exist upon the property; and that if the dedication is not to the town, and accepted by the town, there is virtually no owner of CHAP. IV] CITY OF DEMOPOLIS V. WEBB et ol. 113 the property. This argument is of force, but the technical answer is that the fee remains in the original owner. The dedication for a park carries only an easement. This easement is not in the town, but it is in the public at large. There may be inconveniences in this doctrine in cases which are supposable and possible, but the doctrine itself has been widely adopted, and has been expressly recognized as in force in this Commonwealth. Abbott v. Cottage City, 143 Mass. 521. We need not consider whether this mode of accepting a park has been done away with by the Stat, of 1882, c. 154. . . . Decree for the plaintiff. 2. Interest of a Municipality in a Public Way CITY OF DEMOPOLIS ». WEBB et alt 87 Ala. 659. 1889 SoMEEViLLE, J. The bill is filed by the city of Demopolis, a munici- pal corporation, to restrain the continuance of a fence erected by John C. Webb, one of the defendants, across Arch Street, a highway in said town, said obstruction being alleged to be a public nuisance, and sought to be abated as such. The bill further seeks to restrain the alleged unlawful collection of wharfage by the said Webb and his co-defendants at a steamboat landing on the margin of the Tombigby River, which is averred to be an appropriation of a part of said street, and an obstruc- tion to the free use of said landing by the public. The highway in ques- tion, called "Arch Street," is alleged to be on the east margin of the river, running north and south, and extending from the low-water mark to the lots on the west side of the street, which are marked out and numbered on the map of the city. Said street is also designated on this map, and is alleged to have been duly dedicated to the public use. There was a demurrer to the bill, some grounds of which were sus- tained and others overruled. The case comes before us on cross-appeals by both the complainant and the defendants. . . . It is well settled that a fence or other like obstruction erected across a street is a public nuisance, and it may be such although the obstruc- tion is created under an accompanying claim of title to the soil. A, right of action at law will lie for its maintenance in favor of any one who may sustain from it a special or particular injm-y. For such nuisance an indictment will also lie, and any private person aggrieved by it may rightfully abate it by removal. Stetson v. Faxon, 31 Amer. Dec. 123, and note, 132; Davis v. Mayor, etc., of New York, 67 Amer. Dec. 186, note. 114 CASES ON MUNICIPAL OB PUBLIC COKPOEATIONS [CHAP. rv 203; narrower v. Ritson, 37 Barb. 303; Milarkey v. Foster, 25 Amer. Rep. 531. Chancery, however, will often assume jurisdiction to abate such a nuisance by preventing its continuance through the aid of an injunc- tion, where the fact of its existence is undoubted. This will be done either on the ground of the irreparable nature of the injury, or to pre- vent a multiplicity of suits liable to be occasioned by its repetition or continuance, or other grounds which render the remedy at law inade- quate. The disturbance of easements, existing or threatened, will especially be restrained with much favor. 3 Pom. Eq. Jur. §§ 1350, 1351. Acting on these principles, this court, in State v. Mayor, etc., 5 Port. (Ala.) 279, authorized an injunction to issue restraining the erection of a market-house in one of the public streets of the city of Mobile, which was pronounced to be such an obstruction in the highway as to consti- tute a nuisance. A like jurisdiction exists to abate a nuisance aheady created, the remedy at law being inadequate on the ground that one action, or even several, may not be sufficient to redress the plaintiff's grievances by reason of the continuous nature of the injury. An appeal to the chancery court, moreover, is a more orderly method of settling such disputes; being less apt to lead to breaches of the peace than the dangerous attempt to redress one's rights by taking the law in one's own hands. Tovm of Burlington v. Schwarzman, 52 Amer. Rep. 571; Hoole V. Attorney General, 22 Ala. 190; Steam-Engine Co. v. Steam-Ship Co., 34 Amer. Rep. 652; Dumesnil v. Dupont, 68 Amer. Dec. 750. That the city of Demopolis has the right to bring this suit is, in our judgment, clear, on both authority and principles of reason. Such jurisdiction was recognized and asserted long ago by the EngUsh court of chancery in Mayor, etc., v. Bolt, 5 Ves. 129, where an injimction was granted on the application of the corporate authorities of the city of London to prevent a nuisance which threatened to be dangerous to the lives of the citizens. In Trustees v. Cowen, 4 Paige, 510, it was decided that the village of Watertown, in its corporate capacity, was so far the representative of the equitable rights of the inhabitants as to authorize the filing of a bill in its name to restrain the erection of buildings on a public square, which were declared to be a public nuisance, and liable to be abated as such. So it was held in Town of Burlington v. Schwarzman, 52 Conn. 181, that one who unlawfully erects a fence across a public street in a town, and threatens to maintain it, could be restrained by injunction at the suit of the town. The court, among other reasons, thought that the liability of the town to pay damages in case of a person being injured by the obstruction a sufficient interest to enable it to appear as plaintiff in a complaint in equity to prevent the threatened destruction. An equally good reason is found in the power and duty to prevent and re- move nuisances, and to keep a general control of and supervision over all municipal highways as incidental to the right to repair and improve CHAP. IV] PETERS et ol. V. CITY OF ST. LOUIS et d. 115 streets, to say nothing of the express power in the city charter "to open all streets as laid down on the maps of said city." City Charter, Acts 1872-73, pp. 305, 310, 311, § 19; M. E. Church v. Mayor, etc., 97 Amer. Dec. 698, note 707; Inhabitants of Greenwich v. Railroad Co., 24 N. J. Eq. 221. There would be a great defect of justice if the governing au- thorities of a town or city, charged as trustees with the duty of pro- tecting the public rights, were compelled to sit still with hands tied, and witness the unlawful appropriation of the municipal highways to private use without any power to prevent so monstrous an evil. Mr. Pomeroy, discussing the subject of public nuisances, observes: "A court of equity has jurisdiction to restrain existing or threatened public nuisances by injunction, at the suit of the attorney general in England, and at the suit of the State, or the people or municipality, or some proper officer representing the Commonwealth in this country." 3 Pom., Eq. Jut., § 1349. See &\so2Dill., Mun. Corp. (3d ed.) § 659; 1 High, Inj. (2d ed.) §§ 768, 769. It is peculiarly appropriate, in our judgment, that this jurisdiction should be asserted in this age and country at the suit of towns and cities, as it harmonizes with the modern American theory of remitting the governmental management of local affairs, as far as convenient and practicable, to the local authorities; for, as said by a learned judge, " the law is made for the times, and will be made or modified by them." Railroad Co. v. Applegate, 8 Dana, 289. It is needless to add that the action of ejectment for a highway by a municipality, even if the right be admitted to exist, as held by some authorities, is not a complete and adequate remedy, in a case of this nature. This suit, we hold, was properly brought in the corporate name of the city of Demopolis. . . . Affirmed. [The concurring opinion of McClellan, J., is omitted. Stone, C. J., dissented on another point.] 3. Power to Obstruct or Alienate a Pvblic Way PETERS et d. v. CITY OF ST. LOUIS et d.t 226 Mo. 62. 1909 Appeal from St. Louis City Cu-cuit Court. Bill in equity by the commissioners of the South Market, in St. Louis, to enjoin the city and the city marshal from removing the market-house from Fifth Street, a public street. The market-house is a brick building, which was con- 116 CASES ON MUNICIPAL OH PTTBLIC COEPOEATIONS [cHAP. IV structed under city ordinances in 1839. The ordinances provided that the expenses of construction and maintenance should be defrayed by .contributions from individuals, and that proportionate shares should be issued to the contributors. The rents of the market were to be ap- propriated to the redemption of these shares, and the city reserved the right at any time to refund a sufficient amount to redeem them. Some of the shares are still outstanding. The ordinances declared the building to be a public market, and placed the management and control of it in the hands of three conamissioners, to be elected by the shareholders. The commissioners were declared to be city officers, and the market was to be conducted in conformity with the ordinances of the city. The market-house is 36 feet in width and 375 feet in length, containing about forty stalls or places of business. Upon either side of the house is about thirty feet of the street. In other words, the public highway at this point is nearly one hundred feet in width, and the market place occupies 36 feet, practically in the middle thereof. Wm. E. Wise and Kehr & Fottmann for appellants. L. E. Walther and B. H. Charles for respondents. Graves, J. . . . But to the proposition as to the right of the city to pass the two ordinances in question. If the city had such power there is an end to this controversy. It appears that other market places were established about this time and they too were placed in the public streets. This, however, does not change the legal status of all such ordinances and of all such acts. Such could only be considered as tending to show the city's construction of its own powers, and not further. To our mind the ordinances in question, as well as all similar ordinances, are void for the reason that they exceed the lawful powers of a munici- pal corporation, such as we have involved here. Where land has been dedicated as a street and thereby dedicated to pubhc use, the same cannot be diverted from that use in the manner indicated in these ordinances. Licenses may be granted to street railways, which, for a public purpose, will subject the use of the street to additional burdens, but neither the street itself nor any portion thereof is absolutely with- drawn from use by the general public. Under such grants it has been subjected to an additional use. Not so with reference to the two ordi- nances in question. These ordinances absolutely withdraw from public use a material portion of a public highway. They do not merely en- cumber such highway with an additional public use, but absolutely withdraw the same from public use. This we say advisedly, for it is argued that the use to which the street was subjected under these ordi- nances is a public use. In a sense that is true. The market accom- modated that portion of the population adjacent thereto, but not the general public. PubUc streets are for the general public and not for local interests. Licenses to railway corporations are tolerated on the theory that their limited use of the' public thoroughfare is for the gen- eral public, but even such licenses cannot be tolerated when they oper- CHAP. IV] PETEKS et ol. V. CITY OF ST. LOUIS et ol. 117 ate in such a manner as to preclude the use of the streets m the usual and ordinary manner by the general public. Staie ex rel. v. Railroad, 206 Mo. 251, and cases cited therein. Power to estabUsh and control market places does not mean power to usurp the rights of the public in and to public streets. The case law seems to be firmly set this way. Dillon, with a citation of the case law (1 Dill., Mun. Corp. [4th ed.] § 383) says: " But power to a municipal cor- poration to establish markets and build market-houses will not give the authority to build them on a public street. Such erections are nuisances though made by the corporation, because the street, and the 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 per- sons." [The court here cited and quoted from the following decisions: Mayor v. Wilson, 49 Ga. at 478; Wartman y. Philadelphia, 33 Pa. St. at 210; Richmond v. Smith, 148 Ind. at 296; McDonald v. Newark, 42 N. J. Eq. at 138.] Many cases could be cited, but they all follow the trend of the origi- nal cases, and all are in harmony with the cases from this State, reviewed in State ex rel. v. Wabash Railroad, supra. A municipal corporation, has no right to obstruct a public highway, by ordinance or otherwise, in the manner in which this highway is obstructed. What the city can- not do, it cannot by ordinance authorize individuals to do. The ordi- nances in this case upon which plaintiffs rely are void. They exceed the granted power of the city. . . . Something is said as to the statute of limitations, but this does not and cannot apply, for the reason that the plaintiffs throughout recognized that the building in question was one within a dedicated street. Plaintiffs claim under and through the city by reason of these ordinances and not otherwise. They have never asserted an independent right of possession and do not in the pleadings assert it now. From first to last their claim has been one under the grant made by these two ordinances. . . . The judgment of the trial court which dismissed plaintiff's bill should be and is affirmed. All concur. 118 CASES ON MUNICIPAL OB PUBLIC CORPORATIONS [CHAP. IV COSTELLO V. STATE* STATHAKIS v. SAME PAPALEXANDRAKIS ». SAME 108 Ala. 45. 1895 Appeals from the criminal court, Jefferson County. Each of the appellants was convicted of the offense of maintaining a public nuisance in the city of Birmingham, in the form of a fruit stand occupying a por- tion of the sidewalk of a public street. The undisputed evidence showed that Costello, for a year next before the commencement of the prosecution, kept and maintained a fruit stand, constructed of timber and lumber, so arranged as to display fruits, etc., for the purpose of doing business. It was situated on the inside portion of the sidewalk on Twentieth Street, in said city, between First and Morris avenues, and next to, and along by the side of, a four-story brick storehouse. It was 31 feet long, 3 feet and 8 inches wide, being 2 feet high at the lower or outer edge, and rising, as it re- ceded in width towards the storehouse, to a height of 4 feet next to and adjoining the storehouse; the width at the top, and next to the store- house, being 1 foot. The sidewalk was 15 feet wide. Prior to the erec- tion of this stand, there was in the sidewalk, next to the building, an open way, leading to a room or cellar under the building; and in October, 1894, Costello covered this opening, and erected the fruit stand thereon, the stand occupying only the surface space occupied by the cover to the opening. The opening was made by the owners of the storehouse in the year 1887, and remained there until covered by Costello; the city authorities never having objected to it. The cellar or room to which it afforded entrance has not been used since the opening was covered. Costello kept the stand under a lease from the owners of the building. So far as the legal questions presented by the records are concerned, there is no material difference in the facts of the several cases. There are sUght differences in the dimensions of the stands. Two are for fruits, and one for candies and confections. They are located at differ- ent places in the city, but all on important and commonly used public sidewalks of the city; and they take up, practically, the same sidewalk space, and in the same manner. In the two other cases, there was no cellar opening. It was shown by each of the appellants that he had been granted a license by the city to occupy the portion of the highway used for his fruit stand, under a city ordinance requiring the payment of a license tax of $20 per annum for such privilege. Upon the introduction of all the evidence, the court, at the request of the State, instructed the jury in writing as follows: "Gentlemen of the jury, if you believe the evidence beyond a reasonable doubt, you CHAP. IV] COSTELLO V. STATE 119 should find the defendants guilty." To the giving of this charge in each of the cases, each of the defendants separately excepted. Walker, Porter & Walker and J. J. Altman, for appellants. Wm. C. FiMs, Attorney General, for the State. Head, J. . . . Here, then, we have, in either case, the undisputed, fact, that, at least, 3J^ feet of the 15 feet width of sidewalk (nearly one-fourth), and nearly thirty feet of its length, were exclusively and permanently appropriated by the defendant to his private uses, to the entire deprivation of the public of the space so appropriated, and to this must be added, as a necessary legal inference from the fact that these stands were used for carrying on the business of selling fruits, etc., the permanent occupation of the sidewalk by the person or persons engaged in making the sales; and by the standing thereon, from time to time, day by day, of customers trading at such stands. The trial court was of opinion that these facts, of themselves, constituted, as matter of law, public nuisances, indictable as such, without requiring the prosecutor (as then and now contended for by appellants' counsel) to go further and prove that such erections actually incommoded the general public. It seems to us that the statement of the case necessarily precludes any other conclusion. It is not and cannot be denied that the public has the right to the use of the entire sidewalk for the ptu-pose of passage and otiier public purposes; that the appellants have, without lawful au- thority, permanently appropriated, to their own exclusive use and en- joyment, material portions of the sidewalks in question, thereby wholly depriving the public of the use of such portions. An unlawful depriva- tion of a substantial legal right necessarUy imphes injury to the party so deprived: and it is so with reference to the right of the public to the free use of the streets. When it is established that a party has, perma- nently and unlawfully, obstructed a material portion of a public street which the public have a right to use, and, but for the obstruction, would use, for public purposes, it is thereby concluded that the pubUc have been injured and put to inconvenience by reason of the obstruction, and this constitutes, in law, an indictable nuisance. Mr. Freeman tersely states the law, as extracted from the numerous authorities he cites, in his extended annotation of Callanan v. Oilman (N. Y. App.), 1 Am. St. Rep. 840 (14 N. E. 264), as follows: "The public have a right to passage over a street to its utmost extent, unobstructed by any im- pediments. Any unauthorized obstruction, which necessarily impedes the lawful use of a highway, is a pubKc nuisance at common law." An(^ Judge Ruffin, a distinguished jurist, said, in State v. Edens, 85 N. C. 526: "Any permanent obstruction to a public highway, such as would be caused by the erection of a fence or building thereon, is, of itself, a nuisance, though it should not operate as an actual obstacle to travel, or work a positive inconvenience to anyone. It is an encroachment upon a public right, and, as such, is not permitted by the law to be done with impunity." Confusion of ideas upon this subject grows out of the fad- 120 CASES ON MUNICIPAL OE PUBLIC CORPORATIONS [CHAP. IV ure to properly distinguish between street obstructions which are per se unlawful, and capable of working public detriment, and those which are not, in themselves, unlawful, but may be so, by virtue of circum- stances necessary to be shown in evidence in order to estabUsh the criminality of the act. There are classes of highway obstructions which may create public inconveniences, and yet are not unlawful. Mr. Freeman also makes these appear very clearly. After laying down the principle above credited to him, he proceeds, in the same annotation, to say: "Temporary obstruction and partial occupation of streets may, however, be justified on the ground of necessity. The street may be so obstructed by placing thereon materials for building or repairing, if it be done in such a way as to occasion the least inconvenience to the public, and the obstruction be not continued for an unreasonable length of time. So, too, a private person carrying on business may occupy a portion of the street for a reasonable length of time for the necessary purpose of receiving and delivering his goods. A street may also be used for the purpose of moving a building from one place to another, provided it be done in a reasonable and judicious manner. Streets may be lawfully used for other purposes than the accommodation of the traveling pubUc, provided such use be not inconsistent with the reasonable free passage of travelers over them. SUght inconveniences and occasional interruptions in the use of a street, which are temporary and reasonable, are not illegal merely because the public may not, for the time being, have the full use of the highway. ... If a person finds it necessary to obstruct a public street, he must see to it that the incon- venience to the traveling public be as slight as possible, and that it be allowed to continue for a reasonable time only. And a reasonable time is such as is necessary, in the ordinary course of business, for its removal. A teamster has no right to keep his team standing in the street in such a manner as to impede travel for an unnecessary length of time. If his wagon breaks down, and he is compelled to throw his goods upon the street, he must remove them out of the way in a reasonable time. A tradesman has no right to deposit his goods and wares on the street for the purpose of exposing them for sale. An individual has no right to appropriate a part of the street to his exclusive use in carrying on his business, even though enough space be left for the passage of the pubhc. Nor has a storekeeper any right to use the sidewalk in front of his store as a sort of annex to his place of business. If a man's premises are not sufficiently extensive for the transaction of his business, without en- croaching upon the street or sidewalk, he is boimd to seek more spacious quarters elsewhere. The public convenience is paramount to the neces- sities of private individuals." No doubt, the habitual and constant occupation of a material portion of the sidewalk for displaying goods for sale, which would naturally interfere with public passage, would be declared a nuisance per se. Speaking of permanent structures, he says: "Permanent structures, obstructing streets and interfering with their CHAP. IV] COSTELLO V. STATE 121 unimpeded use by the public, are nuisances, which may be abated, although there be space left for the passage of the public. The follow- ing are instances of such structures, held to be nuisances: A bam occupying nearly half the street in a populous village; a show case in front of a store extending beyond the house line; a bay window 16 feet above the sidewalk, and projecting S}4 feet over the sidewalk; a bridge extending across a street from the second story of a building on one side of the street to the second story of a building on the opposite side, supported by the buildings, and being 13 feet and 3 inches above ground; hay scales in the street, in front of the owner's premises; a fruit stand encroaching upon the sidewalk; a show board extending 113^ inches over the sidewalk in front of a shop; a wooden awning in front of a store, extending over the sidewalk. But in Hawkins v. Sanders, 45 Mich. 491, 8 N. W. 98, it was held that such an awning was not per se a nuisance. So, too, in Osbom v. Ferry Co., 53 Barb. 629, it was held that a log of wood placed by the defendant in the public street, at the threshold of its gate, was a nuisance." Mr. Freeman collects and cites a great array of authorities in support of the principles he lays down. We have read the most of them, as well as a number of others, and they establish to our entire satisfaction that obstructions of the kind in the present cases are per se nuisances. Being in themselves, without more, unlawful infringements of the public right to have the free use of the whole of the streets, which includes the sidewalks, for the purposes for which the streets were dedicated or established, they are, without more, conclusive of pubUc injury. In such cases, evidence would not be admitted that public injury did not result. Such evidence, beyond what the acts themselves manifest, would consist in the opinions of witnesses merely. One jury might accord such weight to such opinions as to result in conviction, another in acquittal, when the acts are, with- out dispute, identical and unlawful, and the legal consequences of both are necessarily the same. It would be a very discordant administration of justice to have Costello convicted and Stathakis acquitted, when both have, without question, committed the very same unlawful acts, with the same consequences, merely because one jury viewed the opin- ions of men, as to the consequences, one way, and another jury the other way. Inasmuch as the law, upon the undisputed facts, declares both the nature of the act and its consequences, such opinions will not be received. The rule is different where one is charged with an improper and detrimental exercise of his public right to use the street. Thus, for instance, as we have seen, a merchant has the right to use the street for receiving and delivering his goods, but he must do so, in a reasonable and proper manner, — in a manner that will not unreasonably impede public travel. The act of using the street for such purposes is not, in itself, unlawful. The unlawfulness of the act consists in the unreason- able manner of its performance, producing unnecessary pubUc incon- 122 CASES ON MUNICIPAL OR PUBLIC CORPORATIONS [cHAP. IT venience. These are the elements which give the character of wrong to the act otherwise right, and they must be proven, in order to estabhsh the criminal offence. Indeed, it is not so much the improper manner of Alker, 1 Kenyon, 427, 437, s. c. 1 Burr. 133, 143; Adams v. Emerson,, 6 Pick. 57; Commonwealth v. Noxon, 121 Mass. 42; Tucker v. Eldredy 6 R. I. 404; Overman v. May, 35 la. 89. The decision in Smith v. Rome, 19 Georgia, 89, cited for the plaintiff, unless it can be considered as substantially a case of a quarry, cannot be upheld. DiM., Mun. Corp. (2d ed.) § 544, note. But it is equally clear that the grant of such an easement to the public, or to the corporation to which its rights have been delegated, authorizes the doing of any act in the highway, including the digging down or raising the soil to any extent, that is necessary or proper tO' make and keep the way safe and convenient for the public travel.^ Callender v. Marsh, 1 Pick. 418; Smith v. Washington, 20 How. 135; Boston V. Richardson, 13 Allen, 146, 159; Pontiac v. Carter, 32 Mich. 164. All acts done for the purpose of repairing the way are of this character, although they may require the removal of the soil from one part of the way to another; and it is accordingly well settled that the public in the case of a highway, or a turnpike corporation or a rail- road company in the case of a turnpike or railroad, has the right, act- ing through proper officers, for the purpose of repairing the same high- > It is held by all authorities (except the Ohio Supreme Court) that it is within the rights of the public, through the proper public authorities, to raise or lower the grade of a highway. The adjoining owner, whether or not he owns the fee, has no legal ground of complaint, even though the change of grade renders access to his property more difficult. See the cases cited by the court. Also, Sauer v. New York, 206 U. S. 536, and oases cited; Selden v. Jacksonville, 28 Fla. 658. As to the rule in Ohio, see Crawford v. Delaware, 7 Ohio St. 459; Akron v. Chamberlam Co., 34 Ohio St. 328. CHAP. IV] PIERCE et d. V. DREW d ols. 131 way, turnpike, or railroad, to take earth, gravel, or stones from one part and deposily them on another, although if the officer appHes them to other uses he may become liable as a trespasser. In Adams v. Emerson, for instance, in which an action was main- tained by the owner of land over which a turnpike road had been laid out, against a servant of the corporation, for taking the herbage grow- ing thereon, Mr. Justice Wilde, deUvering the opinion of the court, said, "The locus in qvo, although part of a turnpike road, is the soil and freehold of the plaintiff. He has the exclusive right of property in the land, subject however to the easement or rights incident to a public highway, such as the right of passage over it, and the right which the turnpike corporation has to construct a convenient path- way, and to keep it always in good repair. To accomplish these pur- poses, the corporation may dig up and remove from place to place, within the limits laid out for the road, any earth, sand, and gravel, and may dig or cut up sods, and .turf." 6 Pick. 58. See also Phillips V. Bowers, 7 Gray, 21, 26; Burr v. Leicester, 121 Mass. 241; Jackson V. Hathaway, 15 Johns. 447, 453; Fish v. Mayor, etc., of Rochester, 6 Paige, 268, 272; Bissell v. Collins, 28 Mich. 277; Baxter v. Winooski Turnpike, 22 Vt. 114; Cole v. Drew, 44 Vt. 49; Chapin v. Sullivan Railroad, 39 N. H. 564; Aldrich v. Drury, 8 R. I. 554, In New England, at least; the same rule has been appUed by law and usage to the taking of materials from one highway for the repair of another within the jurisdiction of the same municipal authorities. Hovey v. Mayo, 43 Me. 322; New Haven v. Sargent, 38 Conn. 50. In such a case, both highways must, for this purpose, be deemed as much parts of one plan of public improvement for the accommodation of the public travel, as if they formed parts of a continuous Une of road called by one name, as in the case of a turnpike or of a railroad. In Delphi V. Evans, 36 Ind. 90, to which the plaintiff has referred us, although there a"re dicta inconsistent with this view, the decision ap- pears to have been based upon the want of any such order of the city council as was required by statute. PIERCE et al. v. DREW et als* 136 Mass. 75. 1883 Bill in equity against the selectmen of the town of Brookline and the American Rapid Telegraph Company of Massachusetts, to restrain the selectmen from granting to the telegraph company a location for its 132 CASES ON MUNICIPAL OE PUBLIC COEPORATIONS [cHAP. IV posts and wires in Brookline. The defendants demurred to the bill for want of equity. At the hearing a decree was entered sustaining the de- murrer and dismissing the bill; and the plaintiffs appealed to the full court. The plaintiffs are owners of land on a certain street in Brookhne, in- cluding the fee to the middle of the way. The selectmen, acting under Pub. Stats., ch. 109, are about to grant to the telegraph company a location along said street or way for their posts and wires. The bill goes upon the ground that this statute is unconstitutional. A. D. Chandler, for the plaintiffs. F. Morrison, for the defendants. Devens, J. ... As the chapter does not, in our opinion, provide for damages to the owner of the fee in the highway by reason of the erection of the telegraphic posts and apparatus, it is to be determined whether such a use of the highway creates a separate and additional burden, requiring an independent assessment of damages, for which the owner of the land was not compensated when the highway was laid out, and thus whether the omission of the act to provide for this com- pensation renders it unconstitutional. It is to be observed that, for more than thirty years, the right to ap. propriate highways to this public use, without any compensation to the owners of the fee therein, has been ass^tec^. . . . No right to take the private property of the owner of the fee in the highway is conferred by this act; all that is given is the right to use land, by permission of the municipal authorities, the whole beneficial use of which had' been pre- viously taken from the owner and appropriated to the public. It is a temporary privilege only which is conferred; no right is acquired as against the owner of the fee by its enjoyment, nor is any legal right ac- quired to the continued enjoyment of the privilege, or any presumption of a grant raised thereby. Pub. Sts., c. 109, § 15. The discontinuance of a highway would annul any permit granted under the statute, and no incumbrance would remain upon the land. In Chase v. Sutton Manuf. Co., 4 Cush. 152, 167, it is said by Chief Justice Shaw, " that where, under the authority of the legislature, in virtue of the sovereign power of eminent domain, private property has been taken for a public use, and a full compensation for a perpetual easement in land has been paid to the owner therefor, and afterwards the land is appropriated to a public use of a hke kind, as where a turn- pike has by law been converted into a common highway, no new claim for compensation can be sustained by the owner of the land over which it passes." The case itself goes further than the illustration used by the chief justice. It related to a claim made by an owner in fee of land which had been taken by a canal company by statutory authority, for the purpose of a navigable waterway, which company had been per- mitted by statute to sell its property to a railway company; but, al- though the two modes of transportation were entirely different, the CHAP, rv] PiEKCE et al. v. dkew et ah. 133 validity of the act was sustained, and the claim of the landowner for further compensation disallowed. "It is well settled," says Mr. Justice Gray, in Boston v. Richardson, 13 Allen, 146, 160, " that when land, once duly appropriated to a pubUc use which requires the occupation of its whole surface, is applied by authority of the legislature to another similar public use, no new claim for compensation, unless expressly provided for, can be sustained by the owner of the fee." When land has been taken or granted for highways, it is so taken or granted for the passing and repassing of travelers thereon, whether on foot or horseback, or with carriages and teams for the transportation and conveyance of passengers and property, and for the transmission of intelligence between the points connected thereby. As every such grant has for its object the procurement of an easement for the public, the in- cidental powers granted must be so construed as most effectually to secure to the public the full enjoyment of such easement. Common- wealth V. Temple, 14 Gray, 69, 77. It has never been doubted that, by authority of the legislature, high- ways might be used for gas or water pipes, intended for the convenience of the citizens, although the gas or water was conducted thereunder by companies formed for the purpose; or for sewers, whose object was not merely the incidental one of cleansing the streets, but also the drainage of private estates, the rights of which to enter therein were subject to public regulations. Commonwealth v. Lowell Gas Light Co., 12 Allen, 75; Attorney General v. Metropolitan Railroad, 125 Mass. 515, 517; Boston V. Richardson, uhi supra. Nor can we perceive that these are to be treated as incidental uses, as suggested by the plaintifE, because the pipes are conducted under the surface of the traveled way, rather than above it. The rights of the owner of the fee must be the same in either case, and the use of the land under the way for gas-pipes or sewers would effectually prevent his own use of it for cellarage or similar purposes. When the land was taken for a highway, that which was taken was not merely the privilege of traveling over it in the then known vehicles, or of using it in the then known methods, for either the conveyance of property or transmission of intelligence. Although the horse railroad was deemed a new invention, it is held that a portion of the road might be set aside for it, and the rights of other travelers, to some extent^ limited by those privileges necessary for its use. Common- wealth V. Temple, ubi supra; Attorney General v. Metropolitan Rail- road, uhi supra. The discovery of the telegraph developed a new and valuable mode of communicating intelligence. Its use is certainly similar to, if not identical with, that public use of transmitting informa- tion for which the highway was originally taken, even if the means adopted are quite different from the post-boy or the mail-coach. It is a newly discovered method of exercising the old public easement, and 134 CASES ON MUNICIPAL OE PUBLIC COKPOKATIONS [CHAP. IV ill appropriate methods must have been deemed to have been paid for when the road was laid out. Under the clause to regulate commerce imong the States, conferred on Congress by the Constitution of the United States, although telegraphic communication was unknown when t was adopted, it has been held that it is the right of Congress to prevent the obstruction of telegraphic communication byhostile.State legislation, IS it has become an indispensable means of intercommunication. Pensacola Telegraph v. Western Union Telegraph, ubi supra [96 U. S. 1]. JNo question arises as to any interference with the old methods of communication, as the statute we are considering, by § 8, guards care- 'ully against this by providing that the telegraphic structures are not ;o be permitted to incommode the public use of highways or public •oads. We are therefore of opinion that the use of a portion of a high- vay for the public use of companies organized under the laws of the state for the transmission of intelligence by electricity, and subject to he supervision of the local municipal authorities, which has been per- nitted by the legislature, is a public use similar to that for which the lighway was originally taken, or to which it was originally devoted, md that the owner of the fee is entitled to no further compensation. There remains the inquiry, whether there is any objection to the tatute because it does not provide a sufficient remedy for the owners of troperty near to or adjoining the way, who may be incidentally in- ured by the structures which the telegraph companies may have been (ermitted to erect along the line of the highway and within its limits. Such remedy is given by § 4 as the legislature deemed sufficient. We hould not be willing to believe that the landowner thus injured would le without remedy, if the company failed to pay the damages lawfully ,ssessed under this section, while it still endeavored to maintain its tructures; but the only compensation to which such owner is entitled 3 that which the legislature deems just, when it permits the erection of hese structures. The legislature may provide for compensation to the idjoining owners, but without such provision there can be no legal laim to it, as the use of the highway is a lawful one. Attorney General ^ Metropolitan Railroad, ubi supra. The clause in the Declaration of Rights which provides that, " when- ver the public exigencies require that the property of any individual hould be appropriated to public uses, he shall receive a reasonable com- (ensation therefor," is confined in its application to property actually aken and appropriated by the government. No construction can be ;iven to it which can extend the benefit of it to the case of one who suf- ers an indirect or consequential damage or expense by means of the ightful use of property already belonging to the public. Callender v. \Iarsh, 1 Pick. 418, 430. The majority of the court is therefore satisfied that the demurrer to his bill was properly sustained, and the entry will be. Decree affirmed. , CHAP, iv] piEECE et al. V. DREW et ah. 135 C. Allen, J. [dissenting]. A minority of the court, consisting of Mr. Justice William Allen and myself, are unable to agree with the majority of the court upon the principal question in this case, which IS this: When the pubhc has acquired an easement in land for a high- way, by taking it under the right of eminent domain, by prescription, by dedication, or by grant, is an additional servitude to be deemed as imposed by appropriating the highway, under legislative authority, for the use of a hne of electric telegraph, by the erection of poles and wires above the surface of the ground, so that the owner of an abutting es- tate and of the soil to the center of the highway is entitled to further com- pensation therefor? The corresponding questions are necessarily in- volved, whether, when land is taken for a highway by the right of eminent domain, it is to be considered as an element of the damages sus- tained by the owner, and to be paid by the city or town, that the land may be used, not merely for a highway, but also for a telegraph line; and whether, in case of a dedication or grant of land for a highway, with or without the payment of a consideration, the right of establishing a telegraph line along the highway, under the authority of general or special statutes, is also included by implication. If such owner is in law entitled to further compensation, it is plain that the statute fails to meet the constitutional requirement, inasmuch as no adequate provision for such compensation is made. A mere right of action at law is not suiBcient. Connecticut River Railroad v. County Commissioners, 127 Mass. 50. It has been held in this Commonwealth and elsewhere, though with- out entire uniformity of decision, that the establishment of a street railway does not entitle the owner of the land to further compensation. Attorney General v. Metropolitan Railroad, 125 Mass. 515. Recognizing this decision as founded on just principles, the question remains, whether the same rule appHes to other uses, and with what limitations, if any. The great weight of opinion thus far expressed by courts is that street railways, with cars propelled by horse power, are not to be regarded as imposing a new servitude which will entitle the owner of the fee of the highway to additional compensation, but that steam railroads are to be so regarded. It is considered that the latter use is so far different in its nature, that the law ought to take notice that it could not have been within the contemplation of the parties that the laying out of an ordi- nary highway should also include such a mode of traveling. While it is always recognized that the proper and contemplated use of the highway is not to be deemed limited to such vehicles as are in use at the time, it is considered to be too great an extension of the easement acquired by the public to hold that it embraces its use for a steam railway. At this point the line has been drawn by a great weight of judicial decision. See Williams v. New York Central Railroad, 16 N. Y. 97; Wager v. Troy Union Railroad, 25 N. Y. 526, 535; Jersey City & Bergen Rail- road V. Jersey City & Hoboken Horse Railroad, 5 C. E. Green, 61 ; Imlay 36 CASES ON MUNICIPAL OK PUBLIC COEPOEATIONS [CHAP. IV ■. Union Branch Railroad, 26 Conn. 249, 255; Grand Rapids & Indiana lailroad v. Heisel, 38 Mich. 62; Sherman v. Milwaukee, Lake Shore & Western Railroad,'iO Wis. 645; Kiicheman v. Chicago, Clinton & Dubuque lailway, 44 la. 366; Kaiser v. St. Paul, Stillwater & Taylor's Falls lailroad, 22 Minn. 149; Southern Pacific Railroad v. Reed, 41 Cal. 256; 'ooley. Const. Urn. 546, 550;. 2 Dill, Mun. Corp. §§ 722, 725. The use of a highway for the purpose of communicating information y electricity, by means of posts and wires erected along its course, may, 1 a certain sense, be said to be a use for a purpose similar to that for 'hich highways are established; namely, the increase of communica- ion between persons at different points. But this is a somewhat remote nalogy, and the more direct piu-pose of establishing highways is to Qable persons and teams to pass more easily from one place to another, 'he analogy between a steam railway and conveyance by ordinary teams 1 much more direct. . . . An argument has been drawn from the judicial sanction which has een given to the use of streets for drains and sewers, and for gas and 'ater pipes. But there is a palpable distinction between such uses and iat of the establishment of a telegraph line. It may be said, in a eneral way, that, when a highway is laid out, the whole beneficial use f the soil is temporarily taken from the owner and appropriated to the ublic use; and ordinarily the laying of underground pipes, "in such a lanner as to cause no injury to the adjoining land, does not deprive the wner of the fee of any use which he could otherwise have made of the jil. Ordinarily, therefore, he cannot be deemed to suffer any legal in- iry from the laying of underground pipes. A different question, how- rer, might by possibility arise, if such pipes interfered with underground perations which the owner might carry on, notwithstanding the exist- ace of the highway. Then, again, sewers and drains are built more irectly by public officers, and usually are of direct benefit to the abut- ng estates, as well as to the streets themselves. The advantage to butting owners is so apparent, that, under our statutes, they may be ssessed for the expenses of construction. Gas pipes also are likely to e of direct service in furtherance of the purposes for which streets re laid out, aiding public travel, and benefiting the abutting lots. There 1 a general recognition that all these uses are directly subservient to the urposes for which highways are established; and, by statute, towns are uthorized or required to lay water pipes, erect watering troughs and mntains, set out and maintain shade trees, erect guide-posts, and erect Qd maintain street lamps. Pub. Sts. ch. 27, §§ 37, 50; ch. 53, §§ 1^; li. 54, § 9. But the erection of telegraph lines along a highway is of no irect and peculiar benefit to travelers upon the highway, to the high- ay itself, or to abutting estates; and, as has been seen, such lines do or lay interfere materially with the beneficial use and enjoyment which le owner of the soil might otherwise have of his estate. The fact that the statute provides that no permanent easement shall CHAP. IV] PIERCE a d. V. DEEW et als. 137 be acquired by a telegraph company is not material. While the line exists, the injury to the owner is continuoite; and he is deprived, without his consent, of the rightful use of his property for a period which, though indefinite and liable to be determined, may yet be perpetual, and which he himself is powerless to bring to an end. The authorities which hold that using a highway for a steam railroad imposes an additional servitude, for which the owner of the fee is enti- tled to additional compensation, go farther than is necessary to support the view above taken. The case of Attorney General v. Metropolitan Railroad, 125 Mass. 515, related only to horse railroads, and leaves it an open question in this State as to steam railways. The case of Cal- lender v. Marsh, 1 Pick. 418, 431, as to damage caused by changing the grade of the street, has always been recognized as a hard case, and an intimation was given at the time that the legislature might well inter- fere by general or special statute for the relief of parties so injured. The doctrine of that case should not be extended. In Young v. Yarmouth, 9 Gray, 386, the telegraph line was established, so far as appears, by the landowner's consent, and no question involving his rights arose or was considered. As to elevated railroads, it was held by a majority of the justices of the New York Court of Appeals, that an abutting owner, even if he does not own the fee of any part of the street, has such a property as to be entitled to additional compensation. Story v. New York Elevated Rail- road, 90 N. Y. 122. The case would be much stronger if he owned the fee. In the Supreme Court of New York, and in the United States Cir- cuit Court for the Northern District of Illinois, and in the Supreme Court of Illinois, it has been held that the use of a highway for a tele- graph line will entitle such owner to additional compensation. Dusen^ hum V. Mutual Telegraph, 11 Abb. New Cas. 440; Atlantic & Pacific Telegraph -v.TChicago, Rock Island & Pacific Railroad, 6 Biss. 158. Board of Trade Telegraph v. Bamett, 107 111. 507. For these reasons, we are of the opinion that the demurrer should be overruled.! ' Accord with the majority opinion: Hobbs v. Telephone Co., 147 Ala. 393 ; Magee v. Overshiner, 150 Ind. 127; People v. Eaton, 100 Mich. 208; St. Louis v. Bdl Td. Co., 96 Mo. 623. Accord with the minority opinion: Eels v. American Tel. & Tel. Co., 143 N. Y. 133; Postal Tel. Cable Co. v. Eaton, 170 111. 520; Chesapeake, etc., Tel. Co. v. Macjcenzie, 74 Md. 36; Stowers v. Postal Tel. Cable Co., 68 Miss. 559; NicoU v. New York, etc., Co., 62 N. J. L. 733; Dailey v. State, 51 Ohio St. 348; Kreuger v. Wis. Telephone Co., 106 Wis. 96. See, for more citations, DUl. Mun. Corp. (5th ed.) § 1221. 138 CASES ON MUNICIPAL OK PUBLIC CORPORATIONS [CHAP. IV 5. The Abutter's Easement STORY V. NEW YORK ELEVATED RAILROAD COMPANY f 90 N. Y. 122. 1882 Action to restrain defendant from constructing its road in front of the plaintiff's premises. Danporth, J. The plaintiff is the owner of land situated on the corner of Moore and Front streets in the city of New York, on which he or his grantors erected buildings. To their enjoyment, light, air, and access are indispensable, and are had through Front Street. The complaint states that the defendant is about to construct a railroad above the surface of that street, in such manner as will obstruct access to the buildings, and deprive the plaintiff of the benefit of light and air. The trial court has in substance found these matters in favor of the plaintiff, and among other things leading to that result, that the defendant intends to construct such road upon a series of columns, about 15 inches sjjuare, 14 feet and 6 inches high, placed 5 inches inside the edge of the sidewalk and carrying girders from 33 to 39 inches deep, for the support of cross ties for three sets of rails for a steam railroad. The cars intended for this road will, when placed hereon, have bodies .11 feet high above the tracks, in running will project 2 feet over the sidewalk on either side of the street, and will reach within 9 feet of the j>laintiff's buildings. The defendant Intends to run its trains as often as once in three minutes, and at a rate of speed as high as eighteen miles an hour. , The learned court found that this construction would, "to some jxtent obscure the light of the abutting premises; that the passing trains will also do this, and give to the light a flickering character ob- iectionable for business purposes" "and to some extent impair the general usefulness of the plaintiff's premises ; " " that the line of columns ibridges the sidewalk and interferes with the street as a thoroughfare, where such columite are located;" that the structure "will fill so much of the carriage-way of the street as is more than fifteen feet above the road-way;" "that the fronts of the abutting buildings will be ex- posed to observation from passengers in the passing trains, and the privacy of those in the second or upper stories of the premises invaded." [t is also found, that these things will be " of a constant and continuing character," and will "tend to the occasioning of incidental damages to the plaintiff's premises and depreciation of its value;" but also inds that the acts of the defendants producing these results would be awful, and that the plaintiff has no cause of action. This conclusion •ests upon the further finding that the mayor, aldermen, and com- nonalty of the city of New York are the owners in fee of Front Street, CHAP. IV] STORT V. NEW YORK ELEVATED RAILROAD COMPANY 139 opposite the plaintiff's lots, and that he is not, and never has been seized of the same in fee, nor had any estate or interest therein. The complaint was, therefore, dismissed, and an order made giving to the defendant an extra allowance of costs. From this order and from the judgment of dismissal the plaintiff appealed to the General Term, where both judgment and order were affirmed. Although this statement is somewhat extended, it is evident that the essential facts of the case are within a, narrow compass, and it will be found, I think, that the material legal question, however difiicult to answer, is simple in its terms, and leads at once to the inquiry whether the scheme of the defendant involves the taking of any prop- erty of the plaintiff. If it does, the judgment in its favor is erroneous upon the substantial ground that the intended act, when performed, would violate not only the provision of the Constitution, which de- clares that such property shall not be taken without just compensa- tion (Art. 1, § 6), but the statutes by which the defendant is bound (Laws of 1875, ch. 606; Act of 1850> ch. 140; Act of 1866, ch. 697; Act of 1867, ch. 489), or to which they owe their existence (Laws of 1867, ch. 489; Laws of 1875, ch. 606), and whose validity would not have been upheld, unless, in the opinion of this court, they provided means to secure such compensation. In re Petition of Gilbert Ele- vated R. Co., to acquire land in the city of New York, respondent, v. Kohhe, appellant, 70 N. Y. 361; In re Petition New York Elevated R. R., ■id. 327. The plaintiff contends, first, that as the owner of the abutting premises he has the fee of one-half the bed of the street opposite thereto and through which the proposed road is to be built; secojnd, if the fee of the street is in the city, he, as abutting owner, has such right to air and light and access afforded by the street above the road-bed as entitles him to protect it and have it kept open for those uses, until by legal process and upon just compensation that right is taken from him. In the first place I propose to discuss the second ground as of greater general importance than the other, and equally sufficient, if found in the plaintiff's favor, to sustain his case. It assumes that the fee of the streets is in the city of New York. The defendant justifies its intended acts through permission of that city. It is not material to inquire in what manner the city acquired its title, for the plaintiff's interest or title, whatever it is, was derived from it. His lots and the street in question are parts of a larger tract, which, prior to May, 1773, thte city caused one of its engineers .to survey and lay out into streets and lots, and designate upon a map. By deeds dated respectively in May and in December of that year, they conveyed the lots in question to the grantees named therein, by metes and bounds. The street already referred to as Front Street is marked out upon the map under the name of Water Street, and if the 140 CASES ON MUNICIPAL OK PUBLIC CORPORATIONS [CHAP. IV description of the premises conveyed does not include its bed — as I am now assuming that it does not — it at least brings it to the street and causes it to adjoin or front upon it. The lots and the streets are upon the map, and in the deed are described as being upon the "side of Water" (now Front) Street, so many feet and inches, "as by the survey made of this and sundry other lots by Gerard Bancker, one of the city sxu-veyors, dated the tenth day of November, 1772, and filed in the office of the town clerk, will more fully appear, with the appurte- nances thereto belonging or appertaining." The deeds contain a covenant on the part of the grantee, "to build and erect," at his own expense, certain streets, and among others, the one now in question, "which said several streets" (it declares) "shall forever thereafter continue and be for the free and common passage of, and as public streets and ways for, the inhabitants of the said city, and>OT, 4 Paige, 510. The right thus secured was an incorporeal lereditament; it became at once appurtjsnant to the lot, and formed 'an integral part of the estate" in it. It follows the estate and con- CHAP. IV] STOET V. NEW YORK ELEVATED RAILROAD COMPANY 141 stitutes a perpetual incumbrance upon the land burdened with it. From the moment it attached, the lot became the dominant, and the open way or street the servient, tenement. Child v. Chappell, 9 N. Y. 246; HiUs v. Miller, 3 Paige, 256; Trustees of Watertovm v. Cowen, 4 id. 514. Nor does it matter that the acts constituting such dedication are those of a municipality. The State even, under similar circumstances, would be bound, and so it was held in the City of Oswego v. Oswego Canal Co. (6 N. Y. 257). "In laying out the village plot," say the court, " and in selling the building lots, the State acted as the owner and proprietor of the land; and the effect of the survey and sale in reference to the streets laid down on the map, was the same as if the survey and sale had been made by a single indi^-idual." Lesser cor- porations can claim no other immiuiity, and all are bound upon the principle that to retract the promise implied by such conduct, and upon which the purchaser acted, would disappoint his just expecta- tions. Child V. Chappell, supra. But what is the extent of this easement? what rights or privileges are secured thereby? Generally, it may be said, it is to have the street kept open, so that from it access may be had to the lot, and light and air furnished across the open way. The street occupies the surface and 'to its uses the rights of the adjacent lots are subordinate, but above the surface there can be no lawful obstruction to the access of light and air, to the detriment of the abutting owner. To hold other- wise would enable the city to derogate from its own grant, and violate the arrangement cin the faith of which the lot was purchased. This in effect was an agreement, that if the grantee would buy the lot abut- ting on the street, he might have the use of light and air over the open space designated as a street. In this case it is found by the trial court, in substance, that the structure proposed by the defendant, and in- tended for the street opposite the plaintiff's premises, would cause an actual diminution of light, depreciate the value of the plaintiff's ware- house, and thus work his injury. In doing this thing the defendant will take his property as much as if it took the tenement itself. With- out air and light, it would be of little value. Its profitable manage- ment is secured by adjusting it in reference to the right obtained by his grantor over the adjoining property. The elements of light and air are both to be derived from the space over the land, on the surface of which the street is constructed, and which is made servient for that purpose. He therefore has an interest in that land, and when it is sought to close it, or any part of it, above the surface of the street, so that light is in any measure to his injury prevented, that interest is to be taken; and one whose lot, acquired as this was, is directly depend- ent upon it for a supply, becomes a party interested and entitled, not only to be heard, but to compensation. The easement is property within the meaning of the Constitution and the statutes authorizing 142 CASES ON MUNICIPAL OR PUBLIC CORPORATIONS [CHAP. IV the construction of the defendant's road, as well as the warehouse upon the lot, by whi^ch it was used and enjoyed, and the owner is, in the language of the Act of 1850 (ch. 140, §§ 14, 15, 18), a person hav- ing an "estate or interest in real estate, so that if proceedings were instituted to condemn the street for railroad uses he would, as one of those persons, whose estate or interests are to be affected by the pro- ceedings," be entitled to notice of the same (§ 14), and compensation (§ 16). So under the Act of 1866 (ch. 697); it is supplementary to that of 1850, and embodies its provisions as to compensation, while the Act of 1867 (ch. 489), providing for the construction of an experi- mental line of railway in the counties of New York and Westchester, and under which the road of which the defendant is successor was empowered to iact, declared that if in the course of its construction "private vaults or improvements are interfered with or occupied by said construction company, compensation therefor shall be paid by said company to the owner thereof," as in said act afterward pro- vided (§ 6), and section 7 provides that any " private property used or acquired shall be compensated for by said company, 'under provisions of existing laws, authorizing the formation of railroad corporations, and the acquisition of rights of way therefor." The plaintiff will also be within the terms of the provisions of the act entitled " An act further to provide for the construction and opera- tion of a steam railway or railways in the counties of the State." (Chapter 606, Laws of 1875.) As, therefore, it is conceded that his consent to the proposed appropriation of the street has not been given, or compensation made or provided for, or the proceedings above re- ferred to taken, it would seem plain that the cause of action stated in the complaint was made out. . . . In The City of Oswego v. The Oswego Canal Co. (supra), it appeared that certain of the plaintiff's streets were appropriated by the de- fendant, under an act of the legislature (Laws of 1823, ch. 241), for the construction of a canal. In denying their liability to the plaintiff, Ruggles, Ch. J., says: "If the construction and maintenance of the canal deprived any of them (referring to the proprietors of lands within the plan of the village as laid out by the surveyor-general) of their easement in the land derived from its dedication, it was a proper subject of appraisal," and Edmonds, J., concurring, says: "There is nothing to show that these streets were public highways at the time the defendants were incorporated. All there is upon that subject is that the owner of the land sold it in lots, bounding them on those streets. This did not make those streets pubUc highways. It gave, to be sure, certain rights to the purchasers of those lots in respect to the strips of land thus called streets, but that was all." What some of those rights are, I have endeavored to show. The case cited holds that they are property rights, and the loss of them a proper subject of compensation. CHAP, rv] STORY V. NEW YORK ELEVATED EAILEOAD COMPANY 143 On the other hand, it is contended by the respondent, that the principles heretofore enunciated by the Supreme Court of the United States and the courts of this State as the grounds of theu- decisions in other cases, and especially by this court in People v. Kerr (27 N. Y. 188) and Kellinger v. Forty-second Street Railway Co. (50 id. 206), known as the surface railway cases, are at variance with this conclu- sion. It is due, therefore, to the importance of this case, and the elaborate and ingenious argument submitted by the respondent, that the cases so referred to be considered, viz.: Transportation Co. v. Chicago (99 U. S. Rep. 635). The claim against the city was for damages for obstruction to the plaintiff's docks by the deposit of materials, the construction of a cofferdam, and other work necessary in the build- ing of a tunnel for the extension of a city street. The work was a necessary city improvement, and the interruption and obstruction was temporary — ceasing with the completion of the work. It was held that the plaintiff could not recover, and this upon the principle applied and practiced upon in all our cities, that the municipality, whether owners of the fee of the street, or vested with an easement only, may repair and improve it, "to adapt it to easy and safe passage." It permits the leveling of a street by filling up, or digging away, and if intersected by a stream, the erection of a bridge or tunnel. If in doing either of these things materials are necessarily collected, or an excavation made, to the present and temporary detri- ment of a lot owner, he cannot complain. His ownership is subject to the exercise of this public right, and he must submit to the incon- venience in order that the street may be preserved. So in placing a pavement, or excavating for a sewer, the stone for one, and the dirt from the other, may for a time incommode the lot owner. To this, in like manner, he must submit, as to a burden provided for in his grant, or as one of the terms implied by his location upon a public avenue. But the case would be quite different, if upon the cofferdam used in the construction of the tunnel, or upon the piles of rubbish or mate- rial, the city should erect a building, or from them extend the girders of a railroad, and I find nothing in the case cited which would prevent the lot owner from maintaining his action. In Corning et al. v. Lowerre (6 Johns. Ch. 439), Kent, Chancellor, restrained the defendant by in- junction from obstructing Vesey Street in New York City, by build- ing a house thereon, holding it was not only a public nuisance, but a special grievance to the plaintiffs, affecting the enjoyment of their property, and the value of it, and working a special injury to them. In accordance with the distinction which I have suggested between the character of the obstructing acts, is the decision in Barney v. Keokuk (94 U. S. Sup. Ct. 324), a case also cited by the respondent. It is there held that there is no substantial difference between streets in which the legal title is in private individuals, and those in which it is in the public, as to the rights of the public therein, that in either 144 CASES ON MUNICIPAL OE PUBLIC COKPOEATIONS [CHAP. IV Case the street is to be deemed open and free for public passage, and, agreeing in this respect with People v. Kerr {supra), for such other pubUc uses as are necessary in a city, and do not prevent its use as a thoroughfare. Within this principle, its surface might be broken up for the insertion of gas or water pipes, or sewers, or occupied by rails imbedded therein for a surface railroad. But its limit would be found in these and like uses. It appearing, therefore, that the premises in question adjoined a wharf, affording access to a navigable stream, it was held, that a packet depot was reasonably located, on the ground that "it is a necessary adjunct to the steamboat landing, and the use of the wharf and levee for the purposes of navigation, and does not occupy any portion of the original street." But on the other hand, the construction of a permanent freight depot in that street was deemed an unauthorized and improper occu- pation of it, because "subversive of and totally repugnant to the dedication of the street, as well as to the rights of the public." The railroad structure designed by the defendant for the street opposite the plaintiff's premises is liable to the same objection as the house in Vesey Street {Corning v. Lowerre, supra), and the freight- house in the case last cited. It is true that travel on the surface of the street would, notwithstanding its erection, still be possible, but fifteen feet above it the street is wholly occupied, and light detained from the abutter's lots. The cases cited recognize private or special right in the individual, as well as a public right in a municipality — a sub- stantial right and one to be protected. Other cases cited by the respondent {Lansing v. Smith, 4 Wend. 21, and Gould v. Hudson River Railroad Co., 6 N. Y. 522) involve the right of the State to deal with the navigable waters therein. They stand upon the assertion of an exclusive public right, common to every citizen, and deny a private right peculiar to an individual. But even in Lansing v. Smith, upon which the other rests, this right to regulate is stated by the Chancellor to exist, " provided the legislature do not interfere with vested rights which have been granted to individuals." In the case before us there is in effect a covenant securing to the plain- tiff's grantor a right peculiar to the individual, and necessary to the lot conveyed. It is no doubt true that the grade of a street or highway may be altered by raising or lowering it, without liability on the part of the municipality to the abutter, but this is on the ground that the public had already paid a full compensation for all damage to be done by them to the adjacent owners by any reasonable or convenient mode of grad- ing the way. But the principle applicable to such a case does not aid the defendant. There is no change in the street surface intended; but the elevation of a structure useless for general street purposes, and as foreign thereto as the house in Vesey Street {Corning v. Lowerre, 6 Johns. Ch. 439), or the freight depot {Barney v. Keokuk, supra). CHAP, iv] STOBT V. NEW YORK ELEVATED EAILKOAD COMPANY 145 The plaintiff's case may also rest upon another ground. The tenure of the city, although, as I have assumed, in fee, is not absolute, but in trust for the piu-poses mentioned in the grant above referred to, and confers no other right or title upon the city than is given by the Street Opening Acts of 1691, 1787, 1801 (Colonial Laws, Vol. I, p. 8; Laws of 1787, ch. 88; Laws of 1801, ch. 129, or the Acts of 1813, 2 R. L., p. 408), entitled: "An act to reduce several laws relating particularly to the city of New York ' into one act,' where, in substantial repetition of the former acts, it is declared that the mayor, aldermen, and com- monalty of the city of New York shall be seized of the lands taken for streets." "In trust nevertheless that the same be appropriated and left open for or as a part of a public street, avenue, square, or place forever, in like manner as the other public streets in the said city are, or of right ought to be." The trial court has indeed found without qualification, that the mayor, aldermen, and commonalty of the City of New York are the owners in fee of Front Street opposite the plaintiff's premises, and if by this was intended any estate except as limited by the purposes prescribed by the grant or by the statute (supra), viz., the uses of a street, it would be necessary to sustain the plaintiff's exception thereto, and for this alone reverse the judgment. The decisions already made (Matter of Seventeenth St., 1 Wend. 262; People v. Kerr, 27 N. Y. 188; Kellinger v. Forty-second St., etc., Railroad Co., 50 id. 206) show that the title is so limited. The argument of the respondent, however, proceeds upon that view of the title of the city, and the finding may be regarded as of that effect. It is, however, urged by the respondent, that the trust imposed upon the city is subject to legislative control. So far as the public or the city is concerned, this may be conceded, but a different question is presented when the rights of an adjoining owner are involved. It is certainly well settled that where a grant is made or trust created for a specific and defined purpose, the subject of the grant or trust cannot be used for another and foreign purpose without the consent of the party from whom it was derived, or for whose benefit it was created. Trustees of Watertovm v. Cowen, 4 Paige, 510; Hunter v. Trustees of Sandy Hill, 6 Hill, 407; Warren v. Mayor of Lyons City, 22 la. (Stnes), 351. . . . I find no difficulty in agreeing with the views of the learned Judge Emott in People v. Kerr, and those of the ingenious and able counsel for the respondent as to the propriety of extending the law of city ways to meet the demands of a progressive civilization, but to uphold this judgment requires us to hold that the way may be extinguished. This cannot be done even by the legislature, without compensation to the abutting owner. It would be a perveirsion of law and reason to construe a trust to keep open land for street purposes, as subject to such regulation as would destroy the street, or enable the legislature 146 CASES ON MUNICIPAL OB PUBLIC COEPOEATIONS [cHAP. IV or the municipality to grant away an exclusive right to any part of it. . . . I also think the plaintiff may stand upon his first proposition, that he owns the fee of the street, and that the learned trial court erred in holding that the bed of Front Street was excepted from the grants to which I have above referred. Front Street was not then con- structed. ... ' [The concurring opinion of Tract, J., and the dissenting opinions of Miller, Earl, and Finch, JJ., are omitted.] For reversal, Andrews, Ch. J., Rapallo, Danforth, and Tracy, JJ. For affirmance. Miller, Earl, and Finch, JJ. Judgment reversed. ABENDROTH v. MANHATTAN RAILWAY CO. et d^ 122 N. Y. 1. 1891 Appeal from order of the General Term of the Superior Court of the city of New York, made May 12, 1887, which reversed a judg- ment of the special term dismissing the complaint on the merits and which granted a new trial. This action was brought in November, 1883, to recover plain- tiff's land and building on Pearl Street in the city of New York, alleged to have been caused by the erection and operation by defend- ants of an elevated railroad in said street; also to restrain the defend- ants from maintaining or operating the road, and to compel them to remove it. The elevated railroad structure consists of a double row of hollow- latticed iron columns, set about opposite each other in the edges of the sidewalk, on each side of the street, at intervals along the street of about forty feet, each column being fifteen inches square, said pairs of columns being connected, at a height of about sixteen feet above the street, with open-work iron cross girders, upon which, along the street, were placed four open-work iron longitudinal girders, on which were laid, at a height of about twenty-two feet above the street, two railway tracks, consisting of iron rails placed upon wooden ties or sleepers. The defendants, by their answers, deny that they have taken or im- paired any of the rights of the plaintiff, and allege that he has acquiesced, for five years in the construction and operation of the raiboad. The trial court found as facts the following: "The said railroad struc- ture does not interfere with the air of plaintiff's building, or with access^ thereto, in any substantial degree." "That said structure is perma- nent, has and does fill a large portion of the space of said street in front CHAP. IV] ABENDROTH V. MANHATTAN RAILWAY CO. d ol. 147 of plaintiff's said premises and seriously impairs his light; that said engines (those drawing the trains) emit smoke, gas, steam, and cinders which, at times, have and do enter the plaintiff's premises through his doors and windows, and cause him injury; that by reason of the facts aforesaid, the rental value of the plaintiff's premises has been seriously diminished . . . and his property has been and is permanently dam- aged and its value lessened." Edward C. James and Julien T. Davies, for appellants. Charles P. Cowles and Justus A. B. Cowles, for respondent. Wm. H. Arnoux, for Charles S. Nine and others. G. Willett Van West, for James P. Kernochan and others. FoLLETT, C. J. The principal questions involved in this appeal are: (1) Has the plaintiff, by his ownership of a lot abutting on Pearl Street, private rights or rights of property therein? (2) Have the de- fendants taken or materially impaired those rights, if any the plaintiff has, within the meaning of the Constitution? The term " abutting owner" will be used in this judgment to denote a person having land bounded on the side of a public street and having no title or estate in its bed or soil, and no interests or private rights in the street except such as are incident to lots so situated. The evidence upon which the facts were found not appearing in the record, the findings of the trial court must be accepted as true. In addition to the finding that the plaintiff's lot does not extend beyond the line of the street, it should be noted that there is no finding that the plaintiff or any one of his predecessors ever had any title to or estate in the land whereon this street is maintained, or any interest in the street except that of an abutting owner. The view taken of the rights of abutting owners renders it unnecessary to consider the much debated and interesting historical question as to whether the island of Manhattan was, within the law of nations, so discovered, set- tled, subjugated, or possessed by the United Provinces as to impress upon it and its inhabitants the law of that country and the general rule of the civil law, that the title to the soil of highways and the beds of public streets is in the government. If the plaintiff, by virtue of being an abutting owner, has not sufficient private right or interests in this street to have enabled him to have maintained an action for the injuries found to have been inflicted, or for similar injuries inflicted without legislative authority, then he is without remedy in this case. In the cases about to be referred to, the plaintiffs were not all abutting owners, but none of them owned the part of the street whereon the ob- struction or encroachment was placed which was the cause of the injiu-y complained of. In Coming v. Lowerre (6 Johns. Ch. 439), the owner of a lot on Vesey Street was held entitled to maintain an action to restrain the defendant from obstructing the street. In Van Brunt v. Ahearn (13 Hun, 388), the parties owned lots on Catharine Street in Brooklyn. The defendant obstructed the street at a point some distance from the plaintiff's lot, causing him special damages, and it was held 148 CASES ON MUNICIPAL OE PUBLIC COBPOHATIONS [CHAP. IV that the plaintiff had such a private right, the right of free ingress and egress, that he could maintain an action to recover his damages and restrain the continuance of the obstruction. In Crooke v. Anderson (23 Hun, 266), the parties owned lots on Washington Avenue in the city of Brooklyn, and the defendant en- croached (not obstructed) on the part of the street which was in front of his lot, so that the street was less convenient for the plaintiff's use in going to and from his lot, thus specially damaging the plaintiff, and it was held that he could maintain an action to abate the encroachment. In Fanning v. Osborne (34 Hun, 121, 102 N. Y. 441), the plaintiff was an abutting owner on Harden Street in the city of Auburn, and the defendant, without legislative authority, maintained a railroad track in the street, over which cars were drawn by the power of steam. It was held that the plaintiff (he showing that he had sustained special damages) had a sufficient private right in the street to maintain an action to restrain the operation of the railroad. The same doctrine was held m Hussner v. B. C. R. R. Co. (114 N. Y. 433). In Cdlanan v. Oilman (107 N. Y. 360), two abutting owners on Vesey Street in the city of New York were engaged in business in ad- joining stores. It was held that the plaintiff could, by action, restrain the defendant from improperly obstructing the sidewalk by using a temporary bridge or plankway by which goods were taken from and into the store, and thus causing a special injury or damage to the plaintiff. In Stetson v. Faxon (19 Pick. 147), the parties owned adjoining lots in the city of Boston, which were bounded north by Ann Street and south by a street running along the north side of Market Square. The city laid out a new street south of the last mentioned one, and sold to the defendant the land between his lot and the new street, which had formed a part of the old street. The defendant erected fences and build- ings on the land so purchased which impaired the value of the plaintiff's property by rendering it less convenient of access and obscuring the view. In an action to recover damages it was held that the old street not having been legally discontinued, the defendant was liable. The principle running through these cases has been maintained in England for at least two hundred years. Maynell v. Saltmarsh, 1 Keb. 847; Fritz V. Hobson, L. R. (14 Ch. Div.) 542. The same rule has been held appli- cable to country highways (Pierce v. Dart, 7 Cow. 609; Hood v. Smith, 5 Wkly. Dig. 117), and has received the sanction of the courts of most of , the States of the Union. Angell on Highways, § 285. These cases do not rest on the fact that the wrongs happened to amount to public nuisances, for no person can maintain a private action for the recovery of damages against the creator or maintainer of a public nuisance unless it occasions him special damages by an immediate injury to his person or property, or by a consequential injury to his property. Lansing v. Smith, 8 Cow. 146, 4 Wend. 10; Wood on Nuis. 655. All of these cases were for the recovery of consequential damages tp real property bounded CHAP. IV] ABENDROTH V. MANHATTAN RAILWAY CO. d d. 149 by the side or center of the street, or for the recovery of such damages sustained by occupants of such property, and in none of the cases were the obstructions or encroachments on or opposite to the property of the plaintiff. There are important differences between the case at bar and those cited. In the cases referred to, the acts which were held to be actionable wholly or partly obstructed the streets and rendered the property of the plaintiffs less accessible, and none of them were done pursuant to legislative authority; while in the case at bar the acts com- plained of were done pursuant to such authority, and do not, as found by the court, impair in any substantial degree the accessibility of the plaintiff's premises. But these cases do estabUsh the principle that the owner of a lot on a public street, whether it extends across to the center, or only to the side of the street, has incorporeal private rights therein which are incident to his property which may be so impaired as to en- title him to damages. If this be not so, it is difficult to see how he can maintain any action except such as can be maintained by a stranger for an immediate injury to person or property caused by an obstruction while lawfully traveling in the street. The judgments in Story v. N. Y. E. R. R. Co. (90 N. Y. 122); Lahr v. M. E. R. Co. (104 id. 268) seem to compel this conclusion. In Story's case importance was given to the language of a covenant contained in the grants dividing and conveying the lots forming a larger tract owned and granted by the city (of which Story's lot was a part), and to chapter 86 of the Revised Laws of 1813, '^ under which the street was laid out. But the judgment in Lahr's case was not placed on the ground that any rights in or to the bed of the street had been granted or reserved to him, or to any of his predeces- sors; and it was held, some force being given to the Act of 1813, that he had rights of property in the street. The learned judges who deUvered the dissenting opinions in Story's case did not deny, but rather assumed that the abutting owner had rights of property in the street, and held that those of the public were paramount, that the rights of both arose and existed by virtue of the same authority, and that those of the abutting owner could, by legis- lative and municipal action, be further subordinated to the rights of the public for the purpose of affording additional and necessary facili- ties for the transportation of persons and property through the street. Since Story's case was decided, questions akin to the one under consider- ation have been discussed by the Court of Appeals. In Mahady's case (91 N. Y. 153), Andrews, J., in delivering the opinion of the court, said: "The plaintiff, though an abutting owner simply, the fee of the street being in the city, was entitled to the use of the street, and neither the legislature nor the city could devote it to purposes inconsistent with street uses, without compensation, according to the principle of Story V. N. Y. E. R. R. Co. (90 N. Y. 122)." Agam, the same learned judge, in deKvering the opinion in Pond's case (112 N. Y. 188), said: "The Story case (90 N. Y. 122) established the principle that an abutting 150 CASES ON MUNICIPAL OB PUBLIC CORPORATIONS [CHAP. rV owner on streets in the city of New York possesses, as incident to such ownership, easements of light, air, and access in and from the adjacent streets, for the benefit of his abuttmg lands, and that the appm-tenant easements and outlying rights constitute private property of which he cannot be deprived without compensation." In Powers v. M. R. Co. (120 N. Y. 178), Brown, J., in his opinion said: "The facts of the Story case were not broad enough to necessarily cover the case of an abutting owner whose only property in the street •was an easement for light, air, and access, and hence the right of such owners to maintain actions for damages was not finally set at rest until the decision in Lahr v. M. E. R. Co." The cases last cited did not, perhaps, involve the question discussed in the remarks quoted; but it cannot be assumed that they were made without deliberation, for since Story's case this precise question has been much debated and hardly out of the minds of the judges of the court of last resort. The judgments for damages which have been recovered and sustained against the elevated roads do not and cannot rest on the ground that the roads are public nuisances, for they were constructed pursuant to statutes; and besides, as before stated, a public nuisance does not create a private cause of action, unless a private right exists and is specially injiu*ed by it. The only remaining ground upon which they can, and do, stand is that by the common law the plaintiffs had private rights in the streets before the roads were built or authorized to be built. It is clear, we think, that these rights were not created by the statutes Tinder which the corporations were organized, nor by the construction of the roads; nor do they exist by force of the judgment in Story's case; but they existed anterior to the construction of the roads, and have simply been defined and protected by the decisions made in the Htiga- tions against these corporations. It being established that an abutting owner has property rights in the streets and that an action could have been maintained against the defendants for the recovery of the damages caused by their acts, had they been done without legislative authority, it becomes material to inquire whether such right of action is cut off because the road was constructed pursuant to such authority. The constitution of this State provides: "Nor shall private property be taken for public use without just compensation." It is settled by Story's case and Lahr's case that such rights as the plaintiif has in Pearl Street "are private property" within the meaning •of the constitutional provision quoted; and these cases also hold that by the construction and operation of an elevated road in the street in front of an owner's premises, his rights are "taken for pubhc use," within the meaning of the constitution. It follows that the authority conferred fey the legislature to construct the road is not a defense to the action. Fobes y. R., W. & 0. R. R. Co. (121 N. Y. 505) does not decide that &n abutting owner has not vested rights to light, air, and access in a CHAP. IV] ABENDROTH V. MANHATTAN RAILWAY CO. Ct ol. 151 public street, which are incident to his lot and which are private prop- erty, within the meaning of the constitution; but that the operation, pursuant to legislative authority, by the defendant of its steam raihoad on the grade of the street which was at about the natural surface of the ground, was not on actionable invasion of the abutter's right. The learned judge who wrote the opinion in that case thus defined the limits of the question to be discussed: "It (defendant) admits that plaintiff had an easement in the street in question, but it denies that it has oc- cupied or appropriated it. Whether it has taken any portion of the plaintiff's easement in the street in question is what the defendant asks shall be decided by us, and it denies in toto any taking whatever of the plaintiff's property or any portion thereof." The conclusion which we arrive at is, that the erection and operation of the elevated road in Pearl Street immediately in front of the plain- tiff's premises in the manner and with the effect described in the findings of fact, was a material impairment of the plaintiff's right of property, for which he is entitled to recover compensation for the damages inflicted. It is urged that if the plaintiff ever had a right of action, it has been lost by his acquiescence in the construction and use of the road by de- fendant. It is found that when the road was being built through this street the plaintiff forbade the New York Elevated Railroad Company to construct it, and threatened that corporation with litigation, but began no action until this suit was commenced, and in the meantime he has occasionally been a fare-paying passenger on the road. Had this action been brought in equity solely for the purpose of compelling the defendants to remove their structure, and if all persons having such interests in the elevated road as would entitle them to be heard before such relief could be granted, were parties to the action, personally, or representatively, this question might require some consideration; but in an action for the recovery of damages, the conduct of the plaintiff, as found by the court, and his delay in bringing the action, is not a defense. The order should be affirmed and judgment absolute rendered against the appellants, with costs. All concur. Order affirmed and judgment accordingly. 152 CASES ON MUNICIPAL OK PUBLIC CORPORATIONS [CHAP. IV BARROWS V. CITY OF SYCAMORE * 150 lU. 588. 1894 Action against the city to recover damages for an alleged injury to real estate. A demurrer to the declaration was sustained, and judg- ment rendered for the defendant. Plaintiff appeals. The cause of action set up in the declaration is that plaintiff is the owner of a certain lot in the city of Sycamore, with a two-story building thereon, fronting south and west on State and Main streets, which she uses and occupies as a residence and hotel; that the city "injuriously, unjustly, and wrongfully constructed, or caused to be constructed and erected, at or near the center of the intersection of said streets, and at a distance of about fifty-six and one-half feet from said hotel building, a standpipe or water tower " fifteen feet high, made of steel or iron plates five feet wide riveted together. The allegations of damage are sufficiently described in the opinion. Jones & Rogers, for the appellant. Carries & Dunton, for the appellee. Wilkin, C. J. ... It is insisted on behalf of the city, that being the owner of the fee in the streets, and having the absolute control over them, it had a right to build the standpipe in them, and that if injury resulted thereby to plaintiff's property it is damnum absque injuria. The soundness of this position depends upon whether the placing of a structure, like that described in the declaration, in the streets of a city, is consistent with the objects for which streets are established and held by municipal authorities in trust for the public use. The general rule long recognized by this/Court is, that, having the fee and exclusive con- trol over streets, municipal authorities may appropriate them to any use not incompatible with the object for which they were established. City of Quincy v. Bull et al., 106 111. 337, and cases there cited. In the application of the rule it has been held in the case cited, and others, that a city council may lawfully authorize the laying of railroad tracks upon, and water, sewer, and gas pipes under, public streets, and that property owners could neither enjoin such use, nor recover damages to property occasioned thereby. Laying pipes under the streets for the purpose of distributing water and gas and carrying off sewage, is lawful both because it is necessary for the health, comfort, and convenience of the inhabitants, and because it in no way interferes with and is not in- compatible with the use of such streets for public travel. Railroad tracks may be lawfully laid in streets, for the reason, as stated in the Moses case cited in Quincy v. Bull, supra, " a street is made for the pas- sage of persons and property, and the law cannot define what exclusive means of transportation and passage shall be used." It was, however, held in Stack v. City of St. Louis, 85 111. 377, and cases cited to the same CHAP. Vl] BAKROWS V. CITY OF SYCAMORE 153 effect in Legate v. City of Chicago, 13& 111. 46, that in permitting the use of streets for other purposes than pubhc thoroughfares, "the city- has no right to so obstruct them as to deprive the public and adjacent property holders of their use as streets. The primary object is for ordi- nary passage and travel, and the pubUc and individuals cannot be rightfully deprived of such use." It does not follow, therefore, that because railroad tracks may be put on or pipes under the streets, structures like the one described in this declaration can be built in them. Water and gas pipes, with hy- drants, lamp-posts and other appliances, are necessary for the distribu- tion of water and light over the city, and the streets may be legitimately used for that purpose; but it would scarcely be contended that the water or gas works themselves could be lawfully built in a public street, as not being inconsistent with the public use. In fact, directly the con- trary was held in City of Morrison v. Hinkson, 87 111. 587, as to water- works. It was there said: " But it is not conceded that the erection of a water tank in the center of the street, occupying one-half of the width thereof, and the erection and operating of a steam engine in connection therewith, even for the purposes of supplying the city and the residents thereof with water, is one of the uses of a street, as such, for which the ground may be appropriately used under a dedication thereof as a street. The owner of a lot adjoining a street does not take the same subject to any such easement." It is true, it was stated in that case that the proof did not show in whom the fee of the street was vested; but if the same could not be said here, there being no allegation in the declaration as to that fact, still, as shown by Stack v. Easft St. Louis, supra, and cases there referred to, the fact that the title is in the city gives it no right to pervert its use as a street. The fee simple title, though in the city, is held in trust for the public use, as a street. Nor do we re- gard the fact that the tank in City of Morrison v. Hinkson occupied more of the street, and was filled by machinery immediately attached, also in the street, distinguishes that case in principle from this. A standpipe is but a part of the machinery and appliances with which water is forced into the pipes throughout the city. There is no necessity for, placing it in a public street, and, so far as appears in this case, neither the health, comfort, nor convenience of the public or individual citizens is promoted by so doing. Therefore, placing it there was an unlawful use of the street, and the dimensions of the structure, and the manner of operating it, in the decision of this case, affect only the question of damages, to be hereafter considered. Our opinion then is, that the allegations of the declaration admitted by the demurrer show that the city wrongfully placed the structure in its streets. It does not, however, follow, that a good cause of action in the plaintiff is shown by her declaration. It is well settled, that for obstructions to streets, resulting in no special injury to an individual, the pubhc alone can complain. McDonald v. English, 85 111. 232; City of 154 CASES ON MUNICIPAL OK PUBLIC CORPORATIONS [CHAP. IV Morrison v. Hinkson, supra. The individual right, under our present constitution, is thus stated in Rigney v. City of Chicago, 102 111. 80: "While it is clear that the present constitution intended to afford re- dress in a certain class of cases for which there was ho remedy under the old constitution, yet we think it equally clear that it was not intended to reach every possible injury that might be occasioned by a public im- provement. There are certain injuries which are necessarily incident to the ownership of property in towns or cities, which directly impair the value of private property, for which the law does not, and never has, afforded any relief. For instance, the building of a jail, police station, or the like, will generally cause a direct depreciation in the value of neighboring property, yet that is clearly a case of damnum absque in- juria. So, as to an obstruction in a public street, if it does not practi- cally affect the use or enjoyment of neighboring property, and thereby impair its value, no action will lie. In all cases, to warrant a recovery, it must appear there has been some direct physical disturbance of a right, either public or private, which the plaintiff enjoys in connection with his property, and which gives to it an additional value, and that by reason of such disturbance he has sustained a special damage with respect to his property in excess of that sustained by the public generally. In the absence of any statutory or constitutional provisions on the sub- ject, the common law afforded redress in all such cases, and we have no doubt it was the intention of the framers of the present constitution to require compensation to be made in all cases where, but for some legis- lative enactment, an action would lie by the common law. When the action is by an individual, the special injury is the gist of the action, and ■unless it is alleged and proved there can be no recovery." McDonald v. English, supra. Under this rule it is too clear for argument that neither of the first three counts of the declaration shows a right of action in the plaintiff. The special injury attempted to be set up in each of these counts is, that her property has been depreciated in value because of the danger of the building being destroyed or damaged by the standpipe faUing or being blown upon it, or by bursting and flooding it with water, but not a single fact is alleged upon which the apprehension of such danger can be based. In the first count nothing but the apprehension itself is alleged, and in the second and third, merely that it (the standpipe) is liable to fall, blow over or burst. Why the apprehension exists, or why it is liable to fall, etc., is left wholly to conjecture. It certainly will not be contended that the manner in which it is constructed, as shown by the declaration, necessarily renders it dangerous. No one -will deny that such a structure could be rendered reasonably secure by proper stays and braces, though it might not be so without. True, as in the instances referred to by counsel for appellee, water towers and stand- pipes have fallen or been destroyed; but the same is true of buildings of every kind, — perhaps of all superstructures. If this one is liable to CHAP. IV] GERHARD et UX. V. SEEKONK COMMISSIONERS 155 fall, blow down, or burst, that liability must arise from certain facts, and those facts must be pleaded. Here we have nothing but the mere conclusion of the pleader. The fourth count avers that "said standpipe obstructs the light to said plaintiff's hotel building and particularly to the parlor and sitting- room in the southwest corner," etc. We are unable to see why this is not a sufficient allegation of special injury to plaintiff's property to en- title her to recover. Rigney v. City of Chicago, supra. The extent of the injury is a question of fact, to be determined upon plea and trial. We think the Circuit Court erred in sustaining the demurrer to the fourth count. Judgment reversed. GERHARD et ux. v. THE SEEKONK RIVER BRIDGE COMMISSIONERS t 15 R. I. 334. 1886 Exceptions to the Court of Common Pleas. Commissioners appointed under Pub. Laws R. I. ch. 349, of March 28, 1883, and acting under the authority given to them by that act, built a bridge across the Seekonk River from Providence to East Providence. The east part of the bridge passed over tide-flowed flats, and was sup- ported at its end by a masonry pier which completely blocked Warren Avenue, a street in East Providence that had been a highway since A. D. 1735. The bridge continued Warren Avenue westerly, but its erection raised the avenue much above its former grade. Persons owning realty on side streets which debouched on Warren Avenue at its former level, but which were cut off from Warren Avenue by the east pier of the bridge and the new grade of the avenue made necessary by the pier, presented claims for damages to the commis- sioners, and on the rejection of their claims appealed to the Court of Common Pleas, and on the dismissal of their appeals filed their excep- tions in this court, charging that the dismissal of their appeals by the Court of Common Pleas was error. Amasa M. Eatmi & Edward C. Dubois, for appellants. Nicholas Van Slyck, for appellees. Per Curiam. . . . The second question is whether the erection of an abutment of the bridge across Warren Avenue, thereby interrupting the use of the avenue as a thoroughfare, entitles the appellants to com- pensation. No portion of the land of the appellants is occupied by the abutment, and their only claim for damages arises from the fact that they are the owners of estates on Warren Avenue and upon other con- 156 CASES ON MUNICIPAL OE PUBLIC CORPOHATIONS [CHAP. IV tiguous streets, and are greatly injured in going to and from their estates by the obstruction, the value of their estates being thereby very much impaired. It does not appear from the statement that the appellants have any private right or easement in Warren Avenue unless they have it as abutters. The question therefore is whether the abutters upon a public street, simply as abutters, have any right of travel in the street as against the State which would entitle them to compensation if the street be obstructed under the authority of the State, in a case where no portion of the street in front of their abutting estates is occupied or obstructed. We do not think that they have any such right. The easement of travel which they enjoy is a public ease- ment, and they enjoy it simply as a portion of the public. It is compe- tent for the State, representing the public, to authorize the entire discon- tinuance of the street, and a fortiori its partial obstruction, at least so long as the abutters have, as they have in the present case, access and egress to and from their Estates by other ways. This was expressly so decided in Fearing v. Irwin, 55 N. Y. 486; Paid v. Carver, 24 Pa. St. 207; Bauer v. Andrews, 7 Phila. 359. And see also State v. Dexter, 10 R. I. 341 ; The People v. The Supervisors of Ingham County, 20 Mich. 95. Some of the cases cited by the appellants seem to have been, or to have been assumed to have been, cases where the owner of a tract of land platted it into house-lots with intersecting streets and sold the lots by plat. In such cases, without doubt, the abutters acquire a private easement in the platted streets distinct from the public easement, and the State could have no power to destroy the street by an obstruction without compensation to the purchasers by the plat injured by such obstruction. The other cases which are in point are in conflict with the great weight of authority, and we are not disposed to follow them. Exceptions overruled. 6. Regulation of Fee-owner's or Abutter's Uses, j IVINS V. CITY OF TRENTON t 68 N. J. L. (Sup. Ct.) 501. 1902 On certiorari to review an ordinance. The opinion of the court was delivered by Hendkickson, J. The prosecutors seek to set aside as invahd an ordinance of the city of Trenton, approved March 18, 1902. The or- dinance ordains that the erection, etc., of any stationary or swinging sign, or any stationary awning, shed, or other obstruction across the whole or any portion of any sidewalk, within that portion of the city CHAP. IV] IVINS V. CITY OF TRENTON 157 of Trenton embraced within certain bounds defined in the ordinance, shall be deemed and is thereby declared to be a nuisance. It contains provisions empowering and directing the poKce depart- ment to prevent such erections or other obstructions across the whole or any portion of any sidewalk within said bounds, and to remove any such erection or obstruction there existing in front of any buildiag where the owner or occupant neglects or refuses to remove the same after ten days' notice, in writing. A penalty of $20 is also added in case of such neglect or refusal after notice. The prosecutors are the owners of a brick store building and lot, known as No. 120 North Broad Street in said city, where for several years they have conducted the business of dealers in fruits, vegetables, and produce. They have an awning in front of their premises 25 feet 11 inches long, consisting of an iron frame and roof covered with boards and tin, 14 feet in height next to the building and 12 feet in height at the ciu-b and extending over the whole sidewalk. This awning was constructed by the grantor of the prosecutors in 1886 and has been maintained there ever since. . . . With regard to the suggestion that the ordinance is inconsistent with the abutters' property interests, we think the proposition is clearly untenable. The title of the abutting owner may run to the center of the street, as it generally does, but his rights must always be subservient to the public easement. He may make as of right all proper uses of the street, subject to the paramount right of the public user, and subject also to reasonable and proper municipal and police regulation. 2 Dill., Mun. Corp. § 656a; Weller v. McCormick, 23 Vroom, 470. In the latter case, Mr. Justice Dixon, in discussing the rights of the abutting owner, says: "He may use the highway in front of his premises, when not restricted by public enactment, for loading and imloading goods, for vaults and chutes, for awnings, for shade trees, etc., but only on con- dition that he does not unreasonably interfere with the safety of the highway for public travel." No decision has been cited, and we know of none in this State, which asserts the doctrine that the exercise of such rights by the abutting owner is not subject to municipal control. Other authorities supporting this view are PedricJc v. Bailey, 12 Gray, 161; Drake v. Lowell, 13 Mete. 292; Augusta v. Burum, 93 Ga. 68; Farrell v. New York, 5 N. Y. Sup. 580, 672, and other cases cited in note 7 of 15 Am. The report of the case on re-argument has been omitted. 252 CASES ON MUNICIPAL OB PUBLIC CORPORATIONS [CHAP. VI supply the city with water, and to issue bonds for that purpose to the amount of one hundred and sixty thousand dollars, which ordinance was accepted by the necessary majority of legal voters. The Water Company then filed its bill to enjoin the city from creating the proposed water-works, or from expending city moneys for that purpose, or from issuing city securities therefor. To this bill the city demurred, resting its demurrer upon a want of jurisdiction. It also filed an answer in- sisting that the contract with the plaintiff was not a valid and binding contract, so far as concerned the stipulation binding the city not to erect or maintain or become interested in any system of water-works other than that of the plaintiff. The demurrer to the bill having been overruled, and a preliminary injunction having been granted pursuant to the prayer of the bill, the case subsequently went to a hearing upon the pleadings and proofs, and resulted in a decree perpetuating the injunction. From this decree defendants appealed directly to this court, pursuant to section 5 of the Circuit Court of Appeals Act, allowing such appeal in any case that involves the construction or application of the Constitution of the United States. Mr. A. H. Garland, for appellants. Mr. J. Hamilton Lends and Mr. R. Garland were on his brief. Mr. John H. Mitchell, for appellee. Mb. Justice Brown. . . . These allegations, upon their face, raise a question of the power of the city to impair the obligation of its contract with the plaintiff by the adoption of the ordinance of June 20, 1893. The argument of the defendant in this connection is that the action of the city in contracting with the water company, and in passing the ordinance of 1893 providing for the erection of water-works, was not in the exercise of its sovereignty, that in these particulars the city was not acting as the agent of the State, but was merely exercising a power as agent of its citizens, and representing solely their proprietary interests; that the council in such cases, as trustee for the citizens, stands in the relation to them as directors to stockholders in a private corporation, acting solely as the agent of the citizens and nowise as the agent of the State; and, therefore, that neither the State nor the city as its agent can be charged either with the making or the impairing of the original contract; that for these reasons the Constitution of the United States has no application to the case, the Federal Court has no jurisdiction, and the bill, upon its admitted facts, presents only a violation by a citizen of the State of its contract with another citizen, and the plaintiff is bound to resort to the State court for its remedy. It may be conceded as a general proposition that there is a substantial distinction between the acts of a municipality as the agent of the State for the preservation of peace and the protection of persons and property, and its acts as the agent of its citizens for the care and improvement of the public property and the adaptation of the city for the purposes of CHAP. Vl] WALLA WALLA CITY V. WALLA WALLA WATER CO. 253 residence and business. Questions respecting this distinction have usu- ally arisen in actions against the municipality for the negligence of its officers, in which its liability has been held to turn upon the question whether the duties of such officers were performed in the exercise of pubUc functions or merely proprietary powers. It is now sought to carry this distinction a step farther, and to hold that, if a contract be made by a city in its proprietary capacity, the question whether such contract has been substantially affected by the subsequent action of the city does not present one of impairment by act of the State or its authorized agent, but one of an ordinary breach of contract by a private party, and hence the case does not arise under the Constitution and laws of the United States, and the court has no jurisdiction, unless there be the requisite diversity of citizenship. How far this distinction can be carried to defeat the jurisdiction of the court, or the application of the contract clause, may admit of considerable doubt, if the contract be authorized by the charter; but it is sufficient for the purposes of this case to say that this court has too often decided for the rule to be now questioned, that the grant of a right to supply gas or water to a munici- pality and its inhabitants through pipes and mains laid in the streets, upon condition of the performance of its service by the grantee, is the grant of a franchise vested in the State, in consideration of the perform- ance of a public service, and after performance by the grantee, is a con- tract protected by the Constitution of the United States against State legislation to impair it. New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650, 660; New Orleans Water Works Co. v. Rivers, 115 U. S. 674; St. Tammany Water Works v. New Orleans Water Works, 120 U. S. 64; Crescent City Gas Light Co. v. New Orleans Gas Light Co., 27 La. Ann. 138, 147. . . . The case upon the merits depends largely upon the power of the city under its charter. The ordinance authorizing the contract which pur- ports to have been passed in pursuance of this charter, declared that until such contract should be avoided by a court of competent jurisdic- tion, the city should not erect, maintain, or become interested in any water-works except the ones established by the company, while the ordinance of June 20, 1893, provided for the immediate construction of a system of water-works by the city for the purpose of supplying the city and its inhabitants with water. Upon the face of the two ordinances there was a plain conffict — the latter clearly impaired the obligation of the former. The argument of the city is that the council exceeded its powers in authorizing the contract with the water company for a continuous supply of water and the payment of rentals for twenty-five years, and that such contract was specially obnoxious in its stipulation that the city should not construct water-works of its own dining the life of the contract. The several objections to the contract are specifically stated by counsel for tKe city in their brief as follows: 254 CASES ON MUNICIPAL OB PUBUC COEPOBATIONS [CHAP. VI a. The contract creates a monopoly which, in the absence of an ex- press grant from the legislature of power so to do or such power neces- sarily implied, is void as in contravention of public policy; b. The contract is void as an attempt to contract away a part of the governmental power of the city council; c. The contract is void as creating an indebtedness in excess of the charter limits; d. The contract is in violation of the express provision of a general statute of the Territory of Washington. By section 10 of the city charter, the city is authorized "to grant the right to use the streets of said city for the purpose of laying gas and other pipes intended to furnish the inhabitants of said city with light or water, to any persons or association of persons for a term not exceed- ing twenty-five years . . . provided always, that none of the rights or privileges hereinafter granted shall be exclusive or prevent the council from granting the said rights to others;" and by section 11 "the city of Walla Walla shall have power to erect and maintain water-works within or without the city limits, or to authorize the erection of the same for the purpose of furnishing the city, or the inhabitants thereof, with a sufficient supply of water." As the contract in question was expressly limited to twenty-five years, and as no attempt was made to grant an exclusive privilege to the Water Company, the city seems to have acted within the strictest limitation of the charter. Atlantic City Waier Works v. Atlantic City, 48 N. J. Law, 378. Had the privilege granted been an exclusive one, the contract might be considered objectionable upon the ground that it created a monopoly without an express sanction of the legislative to that effect. It is true that in City of Brenham v. Brenham Water Works, 67 Texas, 542, a city ordinance granting to the water company the right and privilege for the term of twenty-five years of supplying the city with water, for which the city agreed to pay an annual rental for each hydrant, the Supreme Court of Texas held to be the grant of an exclusive privilege to the water company for the period named. The decision seems to have been rested largely upon the use of the words "privilege" and "supplying" — words which are not found in the contract in this case. Without expressing an opinion upon the point involved in that case, we are content to say that an ordinance granting a right to a water company for twenty-five years to lay and maintain water pipes for the purpose of furnishing the inhabitants of a city with water, does not, in our opinion, create a monopoly or prevent the granting of a similar franchise to another com- pany. Particularly is this so when taken in connection with a further stipulation that the city shall not erect water-works of its own. This provision is not devoid of an implication that it was intended to exclude only competition from itself, and not from other parties whom it might choose to invest with a similar franchise. CHAP. Vl] WALLA WALLA CITT V. WALLA WALLA WATER CO, 255 The argument that the contract is void as an attempt to barter away the legislative power of the city council rests upon the assumption that contracts for supplying a city with water are within the police power of the city, and may be controlled, managed, or abrogated at the pleasure of the council. This court has doubtless held that the police power is one which remains constantly under the control of the legislative authority, and that a city council can neither bind itself, nor its succes- sors, to contracts prejudicial to the peace> good order, health, or morals of its inhabitants; but it is to cases of this class that these rulings have been confined. If a contract be objectionable in itself upon these grounds, or if it become so in its execution, the municipality may, in the exercise of its. police power, regulate the manner in which it may be carried out, or may abrogate it entirely, upon the principle that it cannot bind itself to any course of action which shall prove deleterious to the health or morals of its inhabitants. In such case an appeal to the contract cause of the Constitution is ineffectual. Thus in FertUizing Co. v. Hyde Park, 97 U. S. 659, an act of the General Assembly of Illinois authorized the Fertilizing Company to establish and maintain for fifty years certain chemical works for the purpose of converting dead animals into agri- cultural fertilizers, and to maintain depots in Chicago for the purpose of receiving and carrying out of the city dead animals and other animal matter which it might buy or own. Subsequently, the charter of the village of Hyde Park was revised, and power given it to define or abate nuisances injurious to the public health. It was held that under this, power the village had the right to prohibit the carrying of dead ani- mals, or offensive matter, through the streets; that the charter of the company was a suflacient license until revoked, but was not a contract guaranteeing that the company might continue to carry on a business, which had become a nuisance by the growth of population around its. works, or that it should be exempt for fifty years from an exercise of the police power of the State, citing Coates v. Mayor, etc., of New York, 7 Cowen, 585. Substantially the same ruling was made in Butchers' Union Co. v. Crescent City, etc., Co., Ill U. S. 746, wherein an act of the legislature of Louisiana, granting exclusive privileges for maintaining slaughter- houses, was held to be subject to subsequent ordinances of the city of New Orleans, opening to general competition the right to build slaughter- houses. The same principle has been applied to charters for the maintenance of lotteries which, upon grounds of public policy, have beien held to be mere licenses and subject to abrogation in the exercise of the police power of the government; Boyd v. Alabama, 94 U. S. 645; State v. Mis- sissipjn, 101 U. S. 814; Douglas v. Kentiicky, 168 U. S. 488; as well as to laws regulating the liquor traffic. Beer Co. v. Massachitsetts, 97 U. S. 25; Metropolitan Board of Excise v. Barrie, 34 N. Y. 657; and even laws 256 CASES ON MUNICIPAL OR PUBUC COKPOEATIONS [CHAP. VI regulating the inspection of coal oil; United States v. DeWitt, 9 Wall. 41; Patterson v. Kentucky, 97 U. S. 501. In the latter case it was held that a person holding a patent under the laws of the United States for an invention was not protected by such patent in selling oil condemned by a State inspector as unsafe for illuminating purposes. ^ Under this power and the analogous power of taxation we should have no doubt that the city council might take such measures as were necessary or prudent to secure the purity of the water furnished under the contract of the company, the payment of its just contributions to the public burdens, and the observance of its own ordinances respect- ing the manner in which the pipes and mains of the company should be laid through the streets of the city. New York v. Squire, 145 U. S. 175; St. Louis V. Western Union Tel. Co., 148 U. S. 92; Ladedp Gas Light Co. V. Murphy, 170 U. S. 78. But where a contract for a supply of water is innocuous in itself and is carried out with due regard to the good order of the city and the health of its inhabitants, the aid of the poUce power cannot be invoked to abrogate or impair it. Nor do we think the contract objectionable in its stipulation that the city would not erect water-works of its own during the life of the contract. There was no attempt made to create a monopoly by grant- ing an exclusive right to this company, and the agreement that the city would not erect water-works of its own was accompanied, in section 8 of the contract, with a reservation of a right to take, condemn and pay for the water-works of the company at any time during the existence of the contract. Taking sections 7 and 8 together, they amount simply to this : That if the city should desire to estabHsh water-works of its own it would do so by condemning the property of the company and making such changes in its plant or such additions thereto as it might deem de- sirable for the better supply of its inhabitants; but that it would not enter into a direct competition with the company during the life of the contract. As such competition would be almost necessarily ruinous to the company, it was little more than an agreement that the city would carry out the contract in good faith. An agreement of this kind was a natural incident to the main purpose of the contract, to the power given to the city by its charter to provide a sufficient supply of water, and to grant the right to use the streets of the city for the purpose of laying water pipes to any persons or associ- ation of persons for a term not exceeding twenty-five years. In estab- lishing a system of water-works the company would necessarily incur a large expense in the construction of the power house and the laying of its pipes through the streets, and, as the life of the contract was limited to twenty-five years, it would naturally desire to protect itself from competition as far as possible and would have a right to expect that at least the city would not itself enter into such competition. It is not to be supposed that the company would have entered upon this large undertaking in view of the possibility that, in one of the sudden changes CHAP. Vl] WALLA WALLA CITY V. WALLA WALLA WATEE CO. 257 of public opinion to which all municipalities are more or less subject, the city might resolve to enter the field itself — a field in which it undoubt- edly would have become the master — and practically extinguish the rights it had already granted to the company. We think a disclaimer of this kind was within the fair intendment of the contract, and that a stipulation to that effect was such a one as the city might lawfully make as an incident of the principal undertaking. Cases are not infrequent where under a general power to cause the streets of a city to be lighted, or to furnish its inhabitants with a supply of water, without Imitation as to time, it has been held that the city has no right to grant an exclusive franchise for a period of years; but these cases do not touch upon the question how far the city, in the exer- cise of an undoubted power to make a particular contract, can hedge it about with limitations designed to do little more than bind the city to carry out the contract in good faith, and with decent regard for the rights of the other party. The more prominent of these cases are Minium v. Lartie, 23 How. 435; Wright v. Nagle, 101 U. S. 791; State V. Cincinnati Gas Light & Coke Co., 18 Ohio St. 262; Logan v. Pyne, 43 la. 524; Jackson Co. Horse Railroad v. Rapid Transit Railway Co., 24 Fed. Rep. 306; Norwich Gas Co. v. Norwich City Gas Co., 25 Conn. 19; Saginaw Gas Light Co. v. Saginaw, 28 Fed. Rep. 529; Grand Rapids Electric Light and Power Co. v. Grand Rapids Edison etc.. Gas Co., 33 Fed. Rep. 659; Gale v. Kalamazoo, 23 Mich. 344. These cases furnish little or no support to the proposition for which they are cited. If, as alleged in the answer, the water company failed to carry out its contract, and the supply furnished was inadequate for domestic, sanitary, or fire purposes, and the pressiu-e so far insufficient that in many parts of the city water could not be carried above the first story of the buildings, the seventh section of the contract furnished an ade- quate and complete remedy by an application to the courts to declare the contract void. . . . Upon the whole case, we are of opinion that the decree of the Circuit Court must be Affirmed. 258 CASES ON MUNICIPAL OE PUBUC COBPOKATIONS [CHAP. VII CHAPTER VII Municipal Bodies 1. Notice and QvMrum KAVANAUGH v. CITY OF WAUSAU * 120 Wis. 611. 1904 Appeal from a judgment of the Circuit Court for Marathon County, Action to recover the purchase price of a horse alleged to have been sold and delivered to defendant by plaintiff, for $100. Defendant an- swered by general denial; and further that a committee of the council consisting of three members thereof was authorized to purchase a horse for the city, that two of them without any notification to the other of a meeting to consider the matter, negotiated with the plaintiff for the pur- chase of the horse in question, and made such purchase so far as they had authority to do so, the other member of the committee not being consulted in the matter or having any notice of the proceeding. Upon the trial the evidence was undisputed that a committee was em- powered to buy a horse as alleged in the answer, and that two of such committee acted in the matter without any notification to the other of any meeting for that purpose, and without any participation by such other in the matter, as alleged. At the close of the evidence defendant's counsel made a motion that a verdict be directed for the defendant which was overruled. The verdict was for the plaintiff. Exceptions were duly taken by the defendant to the rulings discussed in the opinion. M. B. Rosenberry, for appellant. Need Brovm, for respondent. Marshall, J. The motion of appellant's counsel for a verdict was based on the theory that the action of two members of the committee, in contracting for the horse without notice to their associate or oppor- tunity for him to participate in the matter, was not valid. The motion was overruled on the theory that a committee of a governing body in- trusted to do a particular thing of a public nature, though requiring the exercise of judgment, may act when a majority of its members are present and concur; and that when action is thus taken there is a con- clusive presumption that all essentials to the validity thereof have been duly complied with. We confess unfamiliarity with such a rule. True, a committee may act by a majority of its members in such a case as the one in question, but only when all members have due opportunity to be CHAP. Vn] KAVANAUGH V. CITY OF WAUSAU 259 present, and in the absence of evidence to the contrary, the presump- tion is that there was such opportunity; but the mere circumstance of such a majority action in the absence of the minority raises no conclu- sive presumption that such minority was duly notified and could have been present by making a reasonable effort to do so, or that such minority consented. There are authorities to the effect that such a committee, empowered to perform some mere ministerial duty, may act validly by concert of a majority regardless of notice to the minority; and some cases may be found — counsel for respondent discovered one of them — supporting the validity of the act of the majority of a committee in a matter requiring the exercise of judgment without opportunity for the minority to participate in the proceedings. But such authorities are rare. They are based on exceptional circumstances and probably in the main, if not universally, recognize the general rule to be that such a committee can act vaUdly only by a majority vote when all the members are either present or have been notified and given oppor- tunity to be present. In the case cited by counsel, Gallup v. Tracy, 25 Corm. 10, the court said: "We make no question that the general principle of law is that public agents may act by majorities where all are present or when all have notice to be present, and generally not otherwise." Many cases might be cited to the same effect, mostly quite ancient, since the rule is so elementary that it is rarely called in question with a sufficient degree of success to require a restatement of it in published decisions. We will refer to the following: Downing w.Rugar, 21 Wend. 178; Grindley v. Barker, 1 Bos. & Pull. 229; Bobson v. Fussy, 7 Bing. 305; Green v. Miller, 6 Johns. 39; Groton v. HurUmrt, 22 Conn. 178; Martin v. Lemon, 26 Conn. 192; Wilson v. Waltersmlle School Dist,, 46 Conn. 400; Keeler v. Frost, 22 Barb. 400; Perry v. Tynen, 22 Barb. 137; 1 Dill, Mun. Corp., § 283 and note. The gist of what the coiu-t said in Perry v. Tynen, as embodied in the syllabus, is in harmony with the language of all courts in speaking on the subject above discussed: "In cases of the delegation of a public authority to three or more persons, the authority conferred may be exercised and performed by a majority of the whole number. If the act to be done by virtue of such public authority requires the exercise of discretion and judgment — i. e., if it is a judicial act — the persons to whom the authority is dele- gated must meet and confer together, and be present when the act is performed; or at least a majority must meet, confer, and be present, after all have been notified to attend." ' 1 In the opinion from which this quotation is taken, the words are preceded by the following: "There is a distinction between a delegation of power for public, and for private purposes. Where the power is delegated for a mere private purpose, all the persons (if more than one) upon whom the authority is conferred must unite and concur in the exercise." _ The court farther on remarks: "If there are only two to whom a public authority is delegated, it necessarily follows that nothing can be done without the consent of both." 260 CASES ON MUNICIPAL OR PUBUC COHPOEATIONS [CHAP. VH That the duty which devolved upon the committee in question was other than merely ministerial in character, seems evident. They were required, not only to buy a horse, but to select a horse to be bought, passing upon the suitableness of the animal for the purposes for which it was intended. The learned counsel for respondent seem to have labored industriously to discover support for the view entertained by the learned circuit judge, without success. The only authority cited to our attention applying any such view is Gallup v. Tracy, 25 Conn. 10, and that, as we have seen, does not support it. In Wilson v. Waltersmlle School DisL, supra, it is said that of the niunerous decisions of the Supreme Court of Connecticut on the subject, Gallup v. Tracy stands alone in violating the common- law doctrine declared in Martin v. Lemon. Counsel lay great stress on Downing v. Ry,gar, 21 Wend. 178, but that, though an extreme case, goes no further than to hold that in circumstances like those before us, the presumption that the absent member consented to the act of his asso- ciates should prevail in the absence of testimony to the contrary. The testimony here is all one way that two members of the committee met without previous notice or concurrence in the matter, and made the trade without the other member of the committee knowing that any such transaction was in contemplation. In the face of tha,t, the presump- tion of notice to the non-participating member of the committee, or con- sent by him to the act of his associates, is obviously most completely rebutted. The absent one could not have been notified of a meeting that was never caUed. He could not have consented to an action which was not official- and of which he had no knowledge whatever. To hold in such circumstances that there is a conclusive presumption of concur- rence by the absent member of the committee, as did the trial court, would open the door wide for the perpetration of frauds upon municipali- ties by committees of their governing bodies, which, in the very nature of things, must be entrusted with the performance of many duties of a discretionary character in business transactions. The ruling of the trial court was clearly wrong. The motion for a directed verdict should have been granted, at least unless there was some warrant for holding that the unauthorized act of the two members of the committee was subsequently ratified. It does not appear from the judge's charge to the jury that the idea of ratification was indulged in upon the trial. The cause was rested solely upon the theory that if a majority of the committee agreed with respondent as to the purchase of the horse, that was sufficient on the question of whether a valid contract in that regard was made or not, irrespective of whether the third member of the committee had any opportunity to consider the matter. The learned judge, consistent with his decision on the motion to direct a verdict, so erroneously instructed the jury. No claim is now made of any ratffication by the committee of the unauthorized transaction by the two members, but it is suggested CHAP. VIl] COENELL, J., IN STATE V. SMITH 261 that the disallowance of the claim by the common council upon the report of the comptroller that the horse was not as represented, was in effect a ratification of the contract and rescission thereof. There would be much force in that if there was evidence showing that the common council, when such action was taken knew the facts rendering the trans- action with respondent invalid. It is elementary that the infirmities as to the validity of a contract made by one ostensibly for and upon the authority of another must be known, actually or constructively, to such other, else his conduct in respect thereto cannot be construed as a ratification thereof. That rides this case on the subject in favor of appellant. ... By THE cotJKT. The judgment is reversed, and the cause remanded for a new trial. CORNELL, J., IN STATE v. SMITH 22 Minn. 218. 1875 Inasmuch as it is not only the duty, but the right, of each member to be present and participate in the deliberations and proceedings of the council, a legal notice to all of every meeting, whether regular or special, is requisite, in order to enable a quorum of the council to act, and to give validity to its transactions. This object is accomplished, in the case of its regular meetings, by a resolution fixing the time and place thereof, of which all must take notice; whereas, as to special meetings, called by the mayor, personal notice must be served in the manner provided by the charter; and, as these two are the only modes provided by the charter for convening the council, a meeting assembled under any other authority, or in any other manner, would be so f^r unauthorized and iUegal that no valid action could be taken by a mere quorum, neither would any alderman be under any obligation to take any notice of it, nor could his attendance be enforced. In case, however, all the members concur in meeting, organizing and acting as a body in reference to matters clearly within the scope of their corporate powers, there is nothing in the charter expressly or impliedly prohibiting them from so doing, or invalidating their action. The powers conferred, and the duties imposed upon the common council were obviously with the view of their being exercised when- ever occasion required, and no limitation or restriction upon its right voluntarily to meet at any time for such piu-pose can be inferred from the fact that it is made obligatory upon it to provide by resolution for a regular time and place of meeting, or the fact that it may be convened at any time upon call of the mayor. . . , 262 CASES ON MUNICIPAL OR PTTBUC CORPOEATIONS [cHAP. VII Assuming, as is claimed by appellants, that the adjournment from the 25th to the 29th of April was irregular because of the want of a quorum,! it does not appear, either from the findings of the court below or otherwise, but that the adjourned meetmg was fully attended by all the members of the council, and that they all participated in its proceedings and in the election which was then had. In the absence of such finding the presumption is that they all did so attend, and acquiesced in the irregular adjournment. "Illegality will not be pre- sumed, but the contrary. The maxim of law in such cases is, omnia rite acta presumuntur." Citizens' M. F. Ins. Co. v. SortweU, 8 Allen, 219, 223; Sargent v. Webster, 13 Met. 497, 504. ... STONE, J., IN HEISKELL v. MAYOR, ETC. OF BALTIMORE 65 Md. 125. 1885 The question then is squarely presented, "Had the First Branch the legal right to determine what should constitute a quorum?" The appellee, a municipal corporation, was created by Act of the General Assembly. Of the power of the General Assembly to fix and determine what should be a quorum, there can be no possible doubt. This power the General Assembly has several times exercised. Thus in 1796 it provided that a quorum of the city council should consist of three-fourths of the members; subsequently the legislature fixed the quorum at two-thirds; but, fimally, in 1868, in amending the law relating to the city council, nothing was said as to what should be a quorum, and so the law stood, at the time the repealing ordinance was passed. . . . Now it has been urged, in behalf of the appellant, that the legislature having granted to this municipal corporation the right, " to settle their rules of procedure," this power includes the right to fix the quorum. "Rules of procedure" are rules made by any legislative body, as to the mode and manner of conducting the business of the body. They are intended for the orderly and proper disposition of the matters before it. Thus, what committees, and upon what subjects they shall be appointed; what shall be the daily order in which the business shall be taken up; in what order certain motions shall be rieceived, and acted upon, and many other kindred matters, are proper subjects of the rules of procedure. These rules operate nowhere except in the 1 The weight of authority is to the effect that less than a quorum, if met at the time and place set for a duly called meeting may keep the meeting alive by adjournment. CHAP. VIl] STONE, J., IN HEISKELL V. MAYOR, ETC. OF BALTIMORE 263 legislative hall of the body that adopts them, and in this country, where what are called in England standing orders are almost unknown, expire at the end of the session. But these ndes of procedure never contravene the statute or com- mon law of the land. When the Constitution of the United States gave to each hcmse of Congress, and the constitution of the State of Maryland to each house of the General Assembly, the right to deter- mine its rules of proceeding, it was never held for a moment that such a right included the power to change any existing statute or common law; much less can a municipal corporation claim the right under the guise of permission to frame their rules of procedure, such unlimited power. This surely must be conceded by every one; and being so conceded, the next question for us to consider is whether the right to fix a quorum, does contravene any existing law of the land. As a general rule in this country the constitutions of the several States fix upon what shall be a quorima in the legislative assemblies. So as a general rule, perhaps, the power that creates a municipal cor- poration fixes the number of the members that shall constitute the quorum. The quorum of a body may be defined to be that niunber of the body, which, when assembled in their proper place, will enable them to transact their proper business, or in other words that number that makes the lawful body, and gives them the power to pass a law or ordinance. But when in the case, like the present, of a municipal corporation, the statute law creating it is silent, as to what shaU constitute a legal assembly, the common law, both in England and in this country is well settled, that the majority of the members elect shall constitute the legal body. In Blacket v. Blacket, 9 B. & C, 851, the court recog- nize the general rule of law prevailing in England, " that a public trust conunitted to a definite number of persons should be executed at a meeting where a majority of that number is present." So in this country Mr. Dillon states that, "The common-law rules as to quorums and majorities established with reference to corporate bodies, consisting of a definite number of corporators, have in general been applied to the common councU, or select governing bodies, of our municipal corpo- rations where the matter is not regulated by charter or statute." 1 Dill, Mun. Corp. 278. Indeed the appellant concedes that in the absence of a statute fixing a quorum, a majority of any body consisting of a definite number, is necessary to constitute a quorum; but he insists that the majority, when so organized, may make more than a majority necessary to con- stitute a legal body. But if we concede, as we must do, that where the charter is silent the common law fixes the majority as the legal body, the case of the appellant is at an end. For the body itself to attempt to fix a greater number, is for the body to attempt to change a rule of the common law. 264 CASES ON MUNICIPAL OB PUBLIC CORPORATIONS [CHAP. VII 2. Prevailing Number STATE V. MAYOR OF ST, JOSEPH 37 Mo. 270. 1866 Holmes, J. This is a petition for a mandamus on the mayor of the city of St. Joseph, requiring him to sign and issue certain bonds of the (dty. The return admits the facts stated in the petition. By the Act of the General Assembly of Missouri of the 19th of December, 1865, it ■was provided that the mayor and council of the city of St. Joseph should cause all propositions "to create a debt by borrowing money for any purpose whatsoever," to be submitted " to a vote of the qualified voters of said city," and that in all such cases it should require "two-thirds of such qualified voters to sanction the same." . . . The only reason given by the mayor for declining to sign the bond in question was, that he was in doubt whether the matter was to be deter- mined by two-thirds of all the votes polled at that special election, or by two-thirds of all the voters resident in the city, absolutely, whether voting or not. We think it was sufficient that two-thirds of all the qualified voters who voted at the special election, authorized for the express purpose of determining that question, on public notice duly given, voted in favor of the proposition. This was the mode provided by law for ascertaining the sense of the qualified voters of the city upon that question. There would appear to be no other practicable way in ■which the matter could be determined. A peremptory mandamus will be ordered. LAWRENCE v. INGERSOLL et als* 88 Tenn. 62. 1889 Appeal from Chancery Court of Knox County. BiU by Lawrence, claiming to be a duly elected and qualified member of the board of education of Knoxville, for an injunction against the four other members of the board to prohibit them from meeting and acting without him, and to compel them by mandamV:S to recognize him as a member. By the city charter, the board of mayor and aldermen were made to consist of nine aldermen, beside the mayor, who should not vote ex- cept in case of a tie when he should have the deciding vote. A majority CHAP. Vn] LAWRENCE V. INGEESOLL et (ds. 265 of the members of the board of mayor and aldermen were made a quormn for the transaction of business. The plaintiff introduced the records of the mayor and aldermen, which showed that at a meeting on January 27, 1888, eight aldermen and the mayor were present. Upon balloting to elect a member of the board of education, to fill a vacancy caused by resignation, the plaintiff had four votes and one Fisher three votes, and a blank ballot was cast which was throTim out. The mayor declared the plaintiff duly elected. A motion to reconsider was made and seconded, the ayes and noes were taken on roll call, and it appeared that four aldermen voted aye and foiu* no; and the mayor decided the motion lost. An injimction was issued and a mandamus awarded as prayed for. Respondents appealed and assigned errors. Taylor & Hood and Wat. M. Cocke, for Lawrence. J. W. Caldwell and IngersoU & Peyton, for Ingersoll. Snodgrass, J It is observed that there are nine aldermen, who, with the mayor, are to make the election, if all are present, the. mayor having no vote, as no tie could result; that if less than nine are present, but a majority of that number, then those present may elect; but, if equally divided in an election, the mayor may cast the deciding vote, the only contingency in which his act can affect the question. In the election now being considered a majority (eight) were present and participating in the election. This appears both in the recitals of the record hereinbefore shown and in the fact that seven ballots were cast for the candidates and one blank ballot. It remains now to inquire what is the effect of this action on the part of this board acting through its eight members, an authorized quorum. In determining this question it must be borne in mind that we are not examining the effect of an election by an indefinite number of electors — as, the vote of the body of the people of the city, or the vote of any in- definite number of people in a popular election — for the rule governing the one is entirely different from that governing the other. In the case of a general or special election by the vote of the people, by the vote of an indefinite number, the common-law rule is that a plurality of votes elects, — that is, the candidate getting more votes than any other is elected, although he does not get a majority of the votes cast, and hence it makes no difference that there are absent voters or blank votes cast. They do not change the fact that one candidate receives a plural- ity, and cannot do so in the very nature of things. - Cooley, Const. Lim., § 779, 5th ed. See also §§ 770,771. Mr. Cooley treats alone the subject of popular elections, the scope of his work not including elections by governing bodies of corporations. This is not only the rule at common law, but it is so by statute in this State; and hence in our elections by the people the candidate who gets the highest number of votes is elected. And this rule is applied to cor- porate action where the corporate power resides in the inhabitants or 266 CASES ON MUNICIPAL OB PUBLIC COKPOEATIONS [CHAP. VII citizens at large, and where they meet and act in their primary capacity, — and hence in indefinite numbers. DUl., Mun. Corp., §§ 208-215. But the rule is equally well settled, and indeed is not open to controversy, that where an election is to be made by a definite body of electors, as a number of aldermen, that, " in the absence of special provision, the major ■part of those present at a meeting of this select body must concur in order to do any vahd act." DUl, Mun. Corp., vol. 1., §§ 216, 220. "Where, therefore," adds the author, " it appeared that thu-teen 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 rescind its action and proceed to a new election." Ibid. And this common law rule as to majorities, he declares is applied to governing bodies of mimicipal corporations where not specially regulated by charter or statutes. §§ 216, 217. We have seen that it is not only differently regulated by the charter of Knoxville or other statute of Tennessee, but that the charter provides for the transac- tion of business only by a majority of a quorum, and gives the mayor a right to vote when the majority thereof cannot decide, thereby con- clusively showing that a majority must concur, or there is no result. A different rule, as we have seen, and we repeat, prevails at common law where the election is by an indefinite number of electors, in which a plu- rality of votes is sufficient for an election. These rules and their distinctions are very forcibly and clearly stated in the able treatise on elections in the sixth volume of American and English Encyclopedia of Law, as follows : " The only way to defeat the election of a candidate at an election where the number of the electors is indefinite, or where the law does not require a majority of all the mem- bers of a body, having a definite number (as opposed to a majority of. those voting), is by voting for another candidate; and the fact that a majority enters a protest against the minority candidate voted for at a regularly called election will not defeat the election if no other candidate is voted for. This rule does not apply to cases where the elective body consists of a definite number and a majority of the members is required for an election. In such case a refusal to vote, or a blank vote by a majority, will defeat an election." Pages 331, 332. We have heretofore seen that under this charter a majority of the quorum is required. This author shows, further, that the rule respect- ing the election by a definite number in a municipal body extends also to other bodies of definite numbers, as legislatures, etc., and shows that in such case a majority must concur and vote for the candidate in order to elect him, quoting several cases and instances of high au- thority. . . . Thus it appears, by concurrence of text-book, judicial, senatorial, con- gressional, and legislative authority, that the rule is settled that a ma- jority of a definite body present and acting must vote /or a candidate in CHAP. VIl] LAWRENCE V. INGERSOLL et ols. 267 order to elect him, and that it is not sufficient that he receive a pluraUty of votes cast, or a majority of blank ballots are excluded. His claim must not depend upon the negative character of the opposition, but upon the affirmative strength of his own vote. It is not sufficient that a majority were not cast against him; to be elected, the majority must be cast for him. " So if a board of village trustees consists of five members and aU or four are preseni, two can do no valid act, even though the others are dis- quahfied by interest from voting, and therefore omit or decline to vote. Their assenting to the measure voted for by the two will not make it valid. If three only were present, they would constitute a quorum. Then the votes of two, being a majority of the quorum, would be valid; certainly so where the three are all competent to act." Dili., Mun. Corp., vol. 1, § 217. These authorities answer the proposition lu-ged by complainant that the blank vote must not be considered, and it must be treated as though only seven votes were cast and he got four. It is true that the blank vote cannot be, in the technical sense, a ballot; but it is nevertheless an act of negation — affirmative in showing that another voter acted , and negative in determining the majority. It was one of eight, attempted to be cast with a purpose of not supporting complainant, and is only to be counted as showing that he did not get a majority; just as would have resulted had^it been an illegal vote, as, being for two candidates or other- wise. But complainant's case would be no better if that vote was entirely disregarded, because the record otherwise shows that eight aldermen were present, and, without reference to their vote, he must have received five votes in order to be elected. . . . But it is said that the mayor declared the election carried, and that this is equivalent to a vote for him, and, with four votes for him and four not for him, the mayor's vote or action makes the election. There are several answers to this — all conclusive. First, the mayor had no right to vote, as there Was no tie; and second, he did not vote. Third, his action declaring the result without voting could not make an election, because the law does not allow him to de- clare a candidate elected, even on a tie, without voting, or at all. He can only, in such case, vote and make an election; and when he does this, it makes it, even though he should then declare the candidate not elected. A still further argument is made, however, that the board appears to have ratified it, and this should be treated as giving it validity. The answers to this are, if possible, even more conclusive. They are: First, that the board has no power to elect except by ballot. There was never but one ballot cast, and if that did not make it, no election could othervnse he made. Second, the board did not ratify it. On the contrary, four members voted to reconsider, and, therefore, against ratification, and four for it. This, at best, while unimportant, was not an affirmative; 268 CASES ON MUNICIPAL OK PUBLIC COBPOBATIONS [CHAP. VII it was, at most, but a tie, which the mayor might, by his vote, have decided. He did not choose to vote, but instead, declared the matter lost. In both instances the mayor refused or failed to vote, and con- tented himself with declaring that the results stood accomplished without his vote. ^ (We are not presenting the parliamentary question, or attempting to show that four against four would rescind any legal action. We are only showing that no majority ever in any way voted to ratify the elec- tion.) The argument need not be repeated here that this meant nothing and accomplished nothing. The law is Aat they could not make an election by ratification, and the fact is, they did not. The construction herein given to the charter regulating municipal elec- tions and the action of municipal boards is not only sound in law but in policy. It would be of the most injurious consequence to hold that municipal bodies could make elections, or appropriate money, legislate rights away, or pass measures affecting vast property interests by less than an affirmative vote of an acting majority. . . . Reverse the decree and dismiss the bill with cost. TuENEY, C. J., dissenting. . : . Under the facts stated, a majority is of opinion there was no such elec- tion as the charter contemplates, and in support, rely, in part, on sec- tion 220, second volume of Dillon on Municipal Corporations, which is: " In the absence of special provision, the major part of those present at a meeting of a select body mitst concur in order to do any valid act." This is construed to mean that the candidate must have a majority of the votes of all present entitled to a vote, and that, while the seven voting constituted a quorum for the transaction of any business of the board, there was not the majority of all present, and, therefore, no elec- tion, and complainant entitled to no relief imder his bill. I do not assent to this conclusion, and am of opinion that, even under the rule laid down by Mr. Dillon, there was an election. There was no dissent to the motion for an election; therefore, to hold it, as was done, was a " valid act," to which there was a concurrence, not only of the " major part," but of all present. If it was necessary that all the alder- men present should vote, then I am of opinion such necessity was con- formed to, and that eight votes were cast, although one of the ballots was a blank. If the blank can be regarded at all, it must be as an expres- sion of indifference by the alderman who cast it as between the two nominated candidates, and, therefore, as an expression of consent that he who should receive a majority of those actually voting should be the elected member of the board of education, and (if the blank was con- sidered at all) such was the interpretation of the mayor when he declared Lawrence elected. Such was the interpretation of the board in refusing to reconsider; and also in the unchallenged certificate of election, fur- nished by the recorder, "by order of the Board," with objection from no one. CHAP. VIl] LAWRENCE V. INGEESOLL el ols. 269 To my mind it is clear that no account should be taken of the blank ballot, nor of the nominal presence of the alderman who cast it. He might have retired from the room, in which event I understand it to be agreed that a majority of the seven voting would have made an election; his absence would, of itself, make the "' action " of the " major part pres- ent " " vaUd." The question then is. Was it necessary that his absence should have carried him out of sight or hearing? I think not. When he determined (after voting that an election be held), that he would take no part in the election, he in legal contemplation absented himself from the board, and did not change that contemplation by dropping a blank in the ballot-box, any more than would the failure of a qualified voter present at the poles of a town or city election, to cast a vote; nor any more than the casting a blank by such voter would change the result. Both would be failures to vote; both would be absences from the elec- tion as a voter. No weight should be attached to the fact that he voted for an election to be held at that meeting. That would not make him present for the election any more strongly than it would make him present for an elec- tion on the next or any subsequent day. Nothing can constitute a pres- ence but participation. If there was participation, it was by acts signi- fying a full acquiescence in the action of the majority voting. Judge Cooley, in his work on Constitutional Limitations, 3d ed.. Sec- tion 14, states the rule more strongly against the defendants than I have done. He says: " In most of the States a plurality of the votes cast de- termines the election; in others, as to some elections, a majority. But in determining upon a majority or plurality, the blank votes, if any, are not to be counted, and a candidate may therefore be chosen without re- ceiving a pluraUty or majority of voices of those who actually participated in the election." (Italics mine.) Under this rule the blank is not to be counted. The presence of him who cast it was not necessary to a quorum to make an election. If he had been in fact absent, it is admitted the election would have been lawful, and free from objection. If Judge Cooley is right, it follows that, although we may hold that the casting a blank ballot was a participa- tion in the election, still complainant, having a majority of such num- ber as was authorized to elect, was elected, notwithstanding the presence and participation of him who cast the blank, which is not to be counted. If there had been five present at the election, with three voting for one man and two for another, or two voting blanks or not voting at all, the election would have been complete. Here were seven actually voting, and one not, and we are asked to count the blank against the com- plainant. We may as well, by the same process of reasoning, count it for him. The juster rule is not to count it at all. It seems to me the rule cited from Judge Cooley is the one this State should adopt in the first case of the kind arising in our courts. The blank was nothing, should be counted for nothing; without it or its author there was a complete 270 CASES ON MUNICIPAL OE PUBLIC CORPORATIONS [cHAP. VII quorum, and their action should be affirmed. If a quorum may hold an election, a majority of that quorum may make an election. Under the rule laid down by the majority, it is put in the power of one man to defeat an election when he sees that his vote for his favorite will make a tie, as then the mayor cannot cast his vote. So if he, the voter, desires a defeat, he can accomplish it by a blank." 3. Elections PEOPLE ex rel. FURMAN et al. v. CLUTE J 50 N. Y. 451. 1872 Action to oust the defendant from the office of superintendent of the poor of the county of Schenectady and to put the relator in possession. At the general election in 1871, the relator, Furman, and the de- fendant, Clute, were candidates for that office. The whole number of votes cast was 4,676, of which Clute received 2,448 and Furman 2,228. Of the votes given for Clute 295 were given in the fifth ward. Clute was declared elected, was duly qualified, entered into office, and con- tinues therein. At the time of the election Clute was supervisor of the fifth ward of the city of Schenectady, and he continued to fill that office until December 12, 1871, when he resigned. By R. S., 4th ed., part 1, title 1, ch. 20, § 22, as amended by Laws of 1853, ch. 80, § 22, it is provided that: "No supervisor of any town . . . shall be elected or appointed to hold the office of superintendent of the poor ... in any county ..." The charter of the city of > Rushville Gas Co. v. Rushville is in accord with the minority opinion. In that case Elliott, J., said: "The rule is that if there is a quorum present and a majority of the quorum vote in favor of a measure, it will prevail, although an equal number should refrain from voting. It is not the majority of the whole number of members present that is re- quired; all that is requisite is a majority of the number of members required to con- stitute a quorum. If there had been four members of the common council present, and three had voted for the resolution and one had voted against it, or had not voted at all, no one would hesitate to affirm that the resolution was duly passed, and it can make no difference whether four or six members are present, since it is always the vote of the majority of the quorum that is effective. The mere presence of inactive members does not impair the right of the majority of the quorum to proceed with the business of the body. If members present desire to defeat a measure they must vote against it, for inaction will not accomplish their purpose. Their silence is acqui- escence, rather than opposition. Their refusal to vote is, in effect, a decliaration that they consent that the majority of the quorum may act for the body of which they are members." In Dillon, Municipal Corporations C4th ed.), p. 369, in noting the decision in this (the Rushville) case. Judge Dillon says: "It deserves further consideration whether this result is consistent with the majority rule applicable to definite bodies." CHAP. VIl] PEOPLE ex Tel. FUHMAN et ol. V. CLXTTE 271 Schenectady provided that the supervisors of wards in the city should be subject to the provisions of law applicable to the supervisors of towns. There was no proof of actual notice to any of the electors of the county of Clute's ineligibility, nor proof of any facts from which notice could be inferred other than that he held the office of supervisor of the fifth ward. The Special Term adjudged that neither candidate was entitled to the office. The General Term affirmed the judgment so far as that the defendant be ousted from the office, but adjudged that the relator was entitled thereto, and gave judgment accordingly. The defendant appealed. J. S. London, for the appellant. E. W. Paige, for the respondents. FoLGEB, J. . . . We are, therefore, of the opinion that the de- fendant Clute was not, at the general election in 1871, eKgible to the office of superintendent of the poor of the county of Schenectady. The second question to be considered is whether Furman, the re- lator, was, at the general election of 1871, duly elected to the office. Neither a majority nor a plurality of all the ballots found in the boxes were for him. He had but a minority of them. It is the theory and the general practice of our government that the candidate who has but a minority of the legal votes cast does not become a duly elected officer. But it is also the theory and practice of our government, that a minority of the whole body of qualified electors may elect to an office, when a majority of that body refuse or decline to vote for anyone for that office. Those of them who are absent from the polls, in theory and practical result are assumed to assent to the action of those who go to the polls; and those who go to the polls, and who do not vote for any candidate for an office, are bound by the result of the action of those who do; and those who go to the polls and who vote for a person for an office, if for any valid reason their votes are as if no votes, they also are bound by the result of the action of those whose votes are valid and of eifect. As if , in voting for an office to which one only can be elected, two are voted for, and their names appear together on the ballot, the ballot so far is lost. The votes are as if for a dead man or for no man. They are thrown away; and those who cast them are to be held as intending to throw them away, and not to vote for any person capable of the office. And then he who receives the highest number of earnest valid ballots, is the one chosen to the office. We may go a step further. They, who, knowing that a person is in- eligible to office by reason of any disqualification, persistently give their ballots for him, do throw away their votes, and are to be held as meaning not to vote for anyone for that office. But when shall it be said that an elector so knows of a disqualification rendering ineligible the person, and knowing, persistently casts for him his ballot? There 272 CASES ON MUNICIPAL OE PUBLIC COKPOEATIONS [cHAP. VH may be notice of the disqualifying fact, and of the legal effect of it, given so directly to the voter, as that he shall be charged with actual knowledge of the disqualification. There may be a disqualifying fact so patent or notorious, as that knowledge in the elector of the ineligibility may be presumed as matter of law. In modern times Lord Denman, C. J., thus puts a case: "No one can doubt that if an elector would nominate and vote only for a woman to fill the oflBce of mayor, or burgess in parliament, his vote would be thrown away; there the fact would be notorious, and every man would be presumed to know the law upon that fact." Gosling v. Veley, 7 Ad. & Ell. N. R. 406-439; 53 Eng. Com. Law, 406. In the multitude of cases in which the question has arisen, we think that up to this point, there is no essential diEFerence of result. All agree that there must be prior notice to, or knowledge in the elector of fact and law, to make his vote so ineffectual as that it is thrown away. But some say that if there be a public law, declaratory that the ex- istence of a certain fact creates ineligibility in the candidate, the elector having notice of the fact, is conclusively presumed in law to have knowledge of the legal rule, and to be deemed to have voted in per- sistent disregard of it. Others deny that the maxim, " Ignorantia juris excuset neminem" (even with the clause of it, "quod quisque scire tenetur," not often quoted, and of which we are reminded by the very thorough brief of the learned counsel for the relator), can be carried to that length, and insist that there does not apply to this question the rule that all citizens must be held to know the general laws of the land, and the special law affecftng their own locality. That maxim, in its proper application, goes to the length of denying to the offender against the criminal law a justification in his ignorance thereof; or to one liable for a breach of contract, or for civil tort, the excuse that he did not know of the rule which fitxes his liability. It finds its proper application when it says to the elector, who, ignorant of the law which disquahfies, has voted for a candidate in^gible. Your ignorance will not excuse you and save your vote; the law must stand, and your vote in conflict with it must be lost to you. But it does not have a proper appUcation when it is carried further, and charges upon the elector such a presumption of knowledge of fact and of law as finds him full of the intent to vote in the face of knowledge, and to so per- sist, in casting his vote for one for whom he knows that it cannot be counted, as to manifest a purpose to waste it. The maxim itself con- cedes that there may be a lack of actual knowledge of the law. For it is ignorance of it which shall not excuse. Then the knowledge of the law, to which each one is held, is a theoretical knowledge; and the doc- trine urged upon us would carry a theoretical knowledge of the statute further than goes the statute itself. The statute but makes ineffec- tual to elect the votes given for one disqualified. The doctrine would make knowledge not actual, of that statute thus limited, waste the CHAP, vii] PEOPLE ex rel. furman et al. v. cltjte 273 votes of the majority, and bring about the choice to oflSce by the votes of a minority. We are not cited to nor do we find any decision to that extent of any court in this State. The industrious research of the learned counsel for the relator has found some from courts in sister states. Gulick v. New (14 Ind. 97), is to that effect. Carson v. McPhe- tridge (15 id. 331), follows the last cited case. [The court here refers to various authorities.] We have consulted many of the authorities cited to us from the English books; and in them it will be found, we think, that where it was held that votes for an ineUgible person would be treated as thrown away, it was not extended beyond cases in which there was actual notice of fact and of law to the voters before their votes were cast. Gosling v. Veley, supra; Rex v. Hawkins, 10 East. 211; Claridge v. Emlyn, 5 Barn. & Aid. 81; Douglass 398 n. (22); Rex v. Parry, 14 East. 549; Rex v. Bridge, 1 Maule & Selw. 76. And there are American authorities which hold that if a majority of those voting by mistake of law or fact happen to cast their votes upon an ineligible candidate, it by no means follows that the next to him in poll shall receive the office. Saunders v. Haynes, 13 Cal. 145; State V. Giles, 1 Chand. (Wis.) 112; State v. Smith, 14 Wis. 497. And in Dill. Mun. Corp. (p. 176, § 135) it is stated that unless the votes for an ineligible person are expressly declared to be void, the effect of such person receiving a majority of the votes cast is, according to the weight of American authority and the reason of the matter (in view of our mode of election, without previous blading nominations, by secret ballot, leaving each elector to vote for whomsoever he pleases), that a new election must be had, and not to give the office to the qualified person having the next highest number of votes. And this view is sustained by a preponderance of the authorities cited by the author in the footnote, some of which are cited above. . . . We think that the rule is this: The existence of the fact which dis- qualifies, and of the law which makes that fact operate to disqualify, must be brought home so closely and so clearly to the knowledge or notice of the elector, as that to give his vote therewith indicates an intent to waste it. The knowledge must be such, or the notice brought so home, as to imply a willfulness in acting, when action is in opposi- tion to the natural impulse to save the vote and make it effectual. He must act so in defiance of both the law and the fact, and so in opposi- tion to his own better knowledge, that he has no right to com- plain of the loss of his franchise, the exercise of which he has wantonly misappKed. To state a truism; our theory of government by the people is upon the assumption that the people as a whole, are intelligent of their rights and interests, and are honestly and earnestly concerned in the due and wise administration of affairs, and zealously alive to the need of good and fitting men in the various places of public trust, and hold 274 CASES ON MUNICIPAL OE PUBLIC COKPOEATIONS [CHAP. VU in high esteem the privilege of suffrage, and are unready to pretermit its exercise or to exercise it meaninglessly. It is much to presume, with this as our starting point, that any considerable body of elector* will purposely so exercise their right of electing to office as that it shall be but an empty form; and that going through with outward signs of an election they will of intent so cast their ballots, as that they will be votes wasted. Now the finding in this case is, that there was no proof of actual i notice of Clute's ineligibility, nor of any facts from which notice could ; be implied, save that he was a supervisor. , There was but this fact, and the law upon the statute book; suffi- , cient in themselves, as we hold, to render him inehgible. But therefrom to give the office to the relator, it is first to be pre- sumed, as a matter of law, that near three hundred of those who voted for Clute had knowledge of the fact that he was supervisor; had know- ledge of the existence of the Act of 1853; and knew that the fact and the law, concurring thus, he was ineligible to receive and avail himself of their votes in his favor, and knew that their votes given to him were wasted, without effect upon the count. It is to be presumed further, that knowing this, they all, though seemingly desirous of taking an effectual participation in the choice of a person to the office of superintendent, deliberately so acted as that they are assumed to have persisted against knowledge; determined to " do nothing but tender their vote for him." It is not in accordance with common sense, and we find no rule or authority so stringent as to compel us to that result. . . . We are therefore of the opinion that the judgment of the General Term should be reversed, and that of the Special Term affirmed. All concur. Judgment accordingly. 4. Voting Rights RIDER V. PORTSMOUTH* 67 N. H. 298. 1892 Assumpsit for money paid. Facts found by the court. The board of mayor and aldermen appointed two of its members, including the plaintiff, a committee to look after the interest of the city as affected by a bill then pending before the legislature, "in all matters where they are of the opinion it will best subserve the interest of the city or its citizens." CHAP. VIl] EIDEB V. PORTSMOUTH 275 The plaintifF went to Concord for the purpose of obtaining changes in some objectionable provisions of the bill, expending for car fares and hotel expenses $11.56. He also paid the further sum of $31.50 for the expenses of three other citizens incurred in going to Concord at his request for the same piu-pose. The plaintiff seeks to recover these sums. After the bill had been presented to the board of mayor and aldermen, five aldermen, including the plaintifF (five being necessary to make a quorum), approved it. Verdict for the plaintiff for $11.56 and interest, which the defendants moved to set aside. The plaintiff moved to increase the verdict by including the item of $21.50 and interest. Samuel W. Emery and John Hatch, for the plaintiff. Ernest L. GuptUl and Calvin Page, for the defendants^ Smith, J. The vote appointing the plaintiff and another alderman a committee gave them authority to do what in their opinion would "best subserve the interest of the city or its citizens" in relation to the bill then pending in the legislature. For personal expenses neces- sarily incurred in the discharge of their duties each member is entitled to be reimbursed by the city, and each may maintain his separate action for the recovery thereof. The motion to set aside the verdict must there- fore be denied. The vote authorized the committee to act jointly, and if the committee had consisted of more than two members, the consent of a majority would have been necessary to bind the city by its action; but consisting of only two members, the concurrent action of both was necessary for the employment of persons at the expense of the city. It was entitled to action governed by the combined wisdom of both members. The item of $21.50 was authorized by the plaintiff alone. If the other member had been consulted, the plaintiff might have been convinced of the inexpediency of the expenditure. The next inquiry is, whether the action of the plaintiff has been rati- fied, or the claim approved. ... It was not approved by the commit- tee on accounts, nor by a majority of the aldermen without the plaintiff, who was a member of the board. In Dorchester v. Youngman, 60 N. H. 385, it was held that a citizen's pecuniary interest in a question of town affairs does not disqualify him from voting upon it. The municipal affairs of the city of Portsmouth are managed by a city council, consisting of a board of aldermen and a board of common councilmen, chosen by the legal voters in their re- spective wards to represent and act for them in aU business matters entrusted by law to the councils. The plaintiff in his capacity as alderman acted as the representative of the people of the city. In all matters where his interest was the same as that of any other citizen his right to vote cannot be questioned. But in a matter where he had a direct personal and pecuniary interest and upon which he was re- 276 CASES ON MUNICIPAL OH PUBUC COEPOKATIONS [CHAP. VII quired to act judicially, he was, according to well recognized legal prin- ciples, disqualified from acting. He claimed to be a creditor of the city. His claim had never been adjudicated, and the question before the board was whether his claim should be paid. Without his vote there was not a majority in favor of paying it. In Holdemess v. Baker, 4A N. H. 414, it was held that a selectman cannot act for the town in making a loan of its money to himself. We think the doctrine of Dorchester v. Youngman does not apply to the facts in this case. The item for $21.50 not having been authorized by the committee nor approved by any committee nor by the aldermen, cannot be re- covered. Judgment on the verdwt. 5. Reconsideration: Adjourned Meetings STILES V. CITY OF LAMBERTVILLE 73 N. J. L. {Sup. Ct.) 90. 1905 On rule to show cause why a mandamus should not issue. Dixon, J. In pursuance of "An act to estabUsh an excise depart- ment in cities of this State," approved April 8, 1902 (Pamph. L., p. 628), an ordinance for that purpose was adopted _in the city of Lambert- ville on March 14, 1903, and imder it a board of excise commissioners was duly organized. The fourth section of the ordinance provides that "in case of the . . . resignation ... of any member of said board . . . the common council shall appoint another person in his stead." At a regular meeting of the council, held on August 7, 1905, a member of the board sent in his resignation to take effect immediately, and the council accepted it. Thereupon, on motion, the relator was appointed by unanimous vote to fill the vacancy. Before these proceed- ings, the council, having under consideration an appropriation .for the fire department, laid it over for one week, and resolved that when the council adjom-ned it would adjourn to meet on August 14, at eight o'clock in the evening, and subsequently the council so adjourned. When the council reassembled, on August 14, a motion was made to reconsider the vote by which the relator had been appointed, and that motion prevailed. On fxu-ther motion', the matter of appointing a member of the excise board was left open for a month. The Act of 1902 requires the excise commissioners to give such bond for the faithful performance of their duties as the council shall fix by ordinance, and the ordinance requires that each person appointed as a member of the board shall, before entering upon the duties of the office. CHAP. VIl] STATE V. PHILLIPS 277 take an oath, etc., and give bond, etc., to be approved by the council. The relator took the required oath on August 8, but when, on August 14, he tendered a bond to the council, it was refused because of the reconsideration above stated. The application of the relator is for a mandamus ordering the council to approve his bond and give him a certificate of election. The proposition that every deliberative assembly may reconsider any vote previously taken at the same meeting was adjudged by this court in State v. Foster, 2 Halst. 101. In other tribunals it has sometimes been denied (State v. Barbour, 53 Conn. 76) and sometimes been admitted (Baker v. Cushman, 127 Mass. 105). In this State it has more than once been affirmed and should be regarded as settled. Jersey City v. Howeth, 1 Vroom, 521, 529; Whitney v. Van Buskirk, 11 id. 463, 467. In the present case the general doctrine is expressly supported by a rule of the council, providing that "when a motion or resolution has been once made and carried ... it shall be in order for any member voting with the majority to move for a reconsideration of the vote at the same meeting." The next question, therefore, is whether the session of August 14 was the same "meeting" as the session of August 7. ^ The authorities hold that the Session of a deliberative assembly, convened in pursuance of a special motion, adopted at a regular meeting, to adjoiu-n the meeting to a stated time, is a continuation of the regular meeting, and at such session the assembly can do anything that it could have done at the earlier session. 1 Dill., Mun. Corp., § 287 (225); State V. Jersey City, 1 Dutcher, 309, 312; Staates v. Borough of Wash- ington, 15 Vroom, 605, 611; Lantz v. Hightstown, 17 id. 102, 107. At the session of August 14th, therefore, the council legally recon- sidered the vote appointing the relator, and such reconsideration an- nulled the appointment. The rule for a mandamus must be discharged. STATE V. PHILLIPS 79 Me. 506. 1887 An information of the attorney general in the nature of quo warranto. LiBBET, J. At a meeting of the aldermen of the city of Ellsworth, held on the 15th of March, 1887, for the purpose of electing city officers, a ballot was taken for second assessor of taxes; and Albert G. Blaisdell was declared elected, and his election was entei'ed of record. The meeting then took a recess till the next day, March 16, when, on motion 278 CASES ON MUNICIPAL OR PUBUC COHPOEATIONS [cHAP. VU therefor it was voted to reconsider the election of second assessor, and a. new ballot was taken, and the respondent was declared elected. Blais- ■dell took the necessary oath of oiEce on the first day of April, 1887. On the foregoing facts, the court held that Blaisdell was duly elected, and that the election of Phillips, the respondent, was void, and ordered judgment of ouster against him. To which rulings exception was taken. We think the rulings of the court below correct. The election of as- sessors was required to be by ballot. While a municipal body having the power of election may set aside a ballotl)y which it appears that an elec- tion is made, for some iregularity or illegality before the election is de- clared (Baker v. Cushman, 127 Mass. 105), we are aware of no authority which holds that, when the election by ballot is declared and entered of record, it may be reconsidered at an adjourned meeting on a subse- quent day, and a new election had. When the aldermen balloted and declared the election of Blaisdell, and it was recorded, their power over the election to that oflBce was exhausted unless he should decline to accept it. He did not decline to accept and the aldermen could not deprive him of the office except by removal in the manner provided by law. There being no vacancy in the office when the respondent was elected, his election was void. Exceptions overrded. Jvdgmmt of cyuater affirmed. HUNNEMAN v. INHABITANTS OF GRAFTON* 10 Mel. {Mass.) 454. 1845 Indebitatus Assumpsit for two fire engines sold and delivered. Writ dated July 11, 1844. Trial before Wilde, J., whose report thereof was as follows: Evidence was given, that at a legal meeting of the defendants, on the 11th of March, 1844, it was voted to procure two fire engines, and that a committee of five was chosen to purchase the same; that a motion was then made to reconsider said vote, and it was voted not to reconsider it; that it was then voted to instruct said committee not to exceed the sum of two thousand dollars, in procuring said engines and fixtures necessary for the same; and that it was then voted to adjourn the meet- ing to the 25th of said March, at two o'clock p. M. : That said committee, before the 25th of said March, made a contract with the plaintiffs to furnish two fire engines, for the sum of $1974: That at a legal meeting of the inhabitants of Grafton, held on the 25th of March, 1844, at (me o'clock, p. M., it was voted "to reconsider the vote passed at the last meeting, whereby the town voted to procure two fire engines:" It was CHAP. VIl] HUNNEMAN V. INHABITANTS OF GKAFTON 279 also "voted to choose a committee of three to inform Messrs. W. C. Hunneman & Co. of the vote of the town, and to leave it in the hands of the committee to settle with them according to their best skill and judgment:" That the defendants met at two o'clock, on the same day, pursuant to adjournment from the 11th of said March, and "voted that the committee chosen to procure engines be discharged from any further duties:" That the votes passed at the meeting aforesaid, held at one o'clock, were communicated to the plaintiffs on the 27th of said March, by the committee then chosen for that purpose. The plaintiffs offered to show that the aforesaid meeting, held on the 25th of March, 1844, was after they had made some progress in the com- pletion of their contract to make the engines. The judge suggested a doubt, whether the action could be main- tained, and a nonsuit was entered by consent, subject to the opinion of the whole court. J. P. Rogers and J. J. Clarke, for the plaintiffs. C. Allen and Bacon, for the defendants. Hubbard, J. It is objected that the committee to procure the fire engines could not legally proceed to act, till the meeting at which they were appointed was dissolved, as the town noight, at the adjournment, reconsider their vote and rescind the power conferred; and that in fact, at a meeting called for the purpose and held at a previous hour, on the same day with the adjourned meeting, a vote was reconsidered and the committee discharged. And it is contended that it was incumbent on the plaintiffs to ascertain the extent of the authority of the committee ■ to bind the town, before contracting with them, and to take notice of the adjournment. But we are of opinion that the authority conferred upon tie committee was not conditional, nor dependent on any further action of the town, on the day of adjoiu-nment; that they, having been appointed to procure the engines, without any restriction, except as to the cost thereof, had a right to go on immediately and contract for the engines; and that, acting within the powers given, their proceedings were binding on thetown. To have been affected by the adjournment, the subject should have been suspended, or the committee directed not to proceed till the meeting was dissolved. An adjournment is for the purpose of acting upon matters not determined, or not yet brought forward for action, and not to revise matters disposed of and finished. And though matters acted upon, where no step has been taken in which the rights of others are affected, may be reconsidered and rescinded; yet when the subject of the votes has been so far carried into effect that rights and duties have grown out of such action, the town cannot, at an adjournment of the same meeting, by a mere reconsideration of their previous act, destroy or affect any right thus vested. As a further answer to this objection, it is insisted by the plaintiffs that, immediately after the votes authorizing the purchase of the engines and the appointment of a committee for the purpose, a further vote 280 CASES ON MUNICIPAL OK PUBLIC COKPORATIONS [CHAP. VH was passed, that they would not reconsider those votes, and that such vote was binding on the town; so that there was no legal right to rescind them at the adjourned meeting. But the case before us requires no specific decision on the legal effect of such a vote not to reconsider. The consequence probably was, to assure the committee, as well as the plaintiffs (if communicated to them), that the town would not rescind their doings; but we are strongly inclined to think it could not bind the town, so as to prevent a future action thereon, if no intermediate steps had been taken. The technical rules of a legislative body, framed for its own convenient action and government, are not of binding force on towns, unless such rules have been so acted upon and enforced by the town in their regular meetings, as to create a law for themselves and binding on the inhabitants. . . . Though the revocation of the authority, and notice thereof to the plaintiffs, and the refusal to accept the engines, furnish no substantial ground of defence to the plaintiff's claim for damages, yet they do create an objection to the plaintiff's form of declaring in the case. There was no acceptance of the engines. The delivery at the depot of the railroad did not, under the circumstances, constitute an acceptance. Atkinson V. Bell, 8 Barn. & Cres. 277, and 2 Man. & Ryl. 292. Anderson v. Hodgson, 5 Price, 630. Hilliard on Sales, 322. . . . The credit also had not expired when the action was commenced. . . . The remedy of the plaintiffs, therefore, is by action on the special contract, and not in indebitatus assumpsit. . . . The nonsuit is to stand, unless a motion should be made to take it off and amend the declaration. Such a motion may be granted on terms. 6. Executive Veto or Approval ERWIN V. JERSEY CITY J 60 ;\^. J. L. 141. 1897 On error to the Supreme Court. Magie, C. J. ... In conformity with the views expressed in the prevailing opinion of the Supreme Court, a verdict was directed in favor of the city. The pleadings disclose that Erwin's action was brought to recover the compensation attached to the office of corporation attorney of the city of Jersey City for the period of three months. At the trial Erwin claimed (1) that he had been duly appointed to that office. . . . CHAP. VIl] EEWIN V. JEESET CITY 281 It is, however, further contended that the appointment of Erwin by the board of finance gave him no apparent title to the office of cor- poration attorney, because, as is claimed, that action required the approval of the mayor of Jersey City, which approval, it appears, was refused. This contention is put upon the provisions of section 19 of " An act for the government of cities of this State," approved April 6, 1889, Pamph. L., p. 187. Although this act has been pronoxmced by this court to be a general law, it is called in the brief of counsel the new charter of Jersey City. Assuming, although there is no proof of it, that the act in question is in force in Jersey City, we will consider the contention thus made. By the provisions of the section above referred to, the mayor of the city is given authority to veto the "acts" of any board of the city, and it is required that copies of all resolutions and "other matters" shall be furnished to the mayor for consideration, and the board is enipowered to pass any vetoed resolution or other matter over the mayor's objections, by a two-thirds vote. It is insisted that a resolu- tion appointing to office is subject to the mayor's veto. If a hteral construction be given to the provisions of the section thus appealed to, it is obvious that the business of any municipal board will not only be hampered and delayed, but practically be ren- dered impossible to be performed. Resolutions to approve minutes, to lay on the table, to postpone, to adjourn, and numberless others, are resolutions expressing acts of such boards. If all such acts are to be presented to the mayor, and only be effective upon his approval or their passage over his veto, the business of the board could not be done. It is so incredible that the legislative intent was to produce such a result that a restricted construction of thefee provisions, consistent with their practical operation, should be adopted if possible. A question identical with that thus presented was considered by the Supreme Court in Haight v. Love, 10 Vroom, 14. By the provisions of a section of a former charter of Jersey City, the mayor was given power to veto the "action" of any municipal board, and all ordinances and resolutions were required to be sent to him for consideration. If any were vetoed, it was provided that the action resolved upon or or- dained should be void, unless such board should sustain it by a two- thirds vote at its next meeting. The point presented in the case was whether the appointment, by the board of finance, of a city collector was required to be presented to the mayor for his approval. The opinion of the court was delivered by Mr. Justice Dixon, who justly pointed out the impracticability of a literal construction of those provisions, and who concluded that the actions which the mayor might approve or veto must belong to the class of acts usually performed by such bodies by resolutions or ordinances, viz., acts of a legislative char- acter. As appointments to office were not of that character and were not usually made by resolution, but rather by ballot or mve wee, the 282 CASES ON MUNICIPAL OH PUBLIC COHPOHATIONS [CHAP. VH legislation then under consideration was construed as inapplicable to acts of such boards appointing to oflice, and it was held that such acts See McDonald v. Mayor, infra. CHAP. VIll] BUKEILL V. CITY OF BOSTON 305 BURRILL V. CITY OF BOSTON 2 Clifford ((7. S. Dist. Ct.) 590. 1867 This was an action of assumpsit upon the following contract, made between the plaintiff and F. W. Lincoln, Jr., as mayor of the city of Boston: "In consideration that Charles Burrill, of Brookline, Mass., shall obtain credits upon the quota of the city of Boston, I hereby agree to pay to the said Charles Burrill the sum of one hundred and twenty-five dollars per man, for each and every full man so credited upon said quota, the money to be paid to the said Burrill whenever he presents to me the oflBcial certificate from the proper authority, showing that such credits have been given. "F. W. Lincoln, Jr., Mayor. "May 31, 1864." , The credits referred to were for sudh residents of the city of Boston as had enlisted into the service ofme United States during the late Rebellion, but had not been enrolled and credited to the quota of the city prior to February 24, 1864. The plaintiff was to obtain these credits under the provision of § 8, of the Act of July 4, 1864. Plain- tiff claimed to have obtained credits for six thousand five hundred and* twenty-nine men. At the close of the plaintiff's case, the defendants moved the court for instructions that the plaintiff had not made out his case, and was not entitled to maintain his action. B. F. Butler, Henry W. Paine, Benjamin Deane, William Gaston, for plaintiff. B. R. Curtis, J. G. Abbott, J. P. Healey, for defendants. Clifford, J. ... It is obvious that the mayor could not make such a contract in behalf of the city without the assent of the city council; and it is equally clear that the assent of the city council, if given, would be without any legal efficacy, unless the corporation possessed the power to contract such a pecuniary obligation. The great question, therefore, is the question of power, and it is the one first to be consid- ered, because if it be determined against the plaintiff it is unnecessary to inquire whether the mayor did or did not act by the assent of the city council. The argument for the plaintiff is that the city council, even if they did not previously assent to the contract, subsequently ratified the act of the mayor in executing it; but, if the corporation possessed no power to incur such a pecuniary obligation, the city council could not effectually ratify it. [The court held that, without an express statutory grant of authority to do so, towns cannot raise money for military purposes, and that the statutes of the State which authorized towns to raise money to procure their quotas of vol- unteers in the War of the Rebellion, did not empower them to pay for 306 CASES ON MUNICIPAL OB PUBLIC COEPOEATIONS [CHAP. Vllt obtaining credits upon their quotas for residents previously enlisted and not credited.] Our conclusion is that the defendants had no power to make the con- tract mentioned in the declaration; that they possess no power to assess and collect taxes for any such purpose, and consequently that the plaintiff cannot recover upon the special counts. Suppose that to be so, still, it is insisted by the plaintiff that he is entitled to recover a reasonable compensation for his labor and expenses under the common counts. Every suggestion upon that subject was listened to with at- tention, and has been carefully considered. Willing to be convinced, it was the purpose of the court to invite discussion upon the point, that no argument in support of the proposition might be overlooked. Some of the arguments are very ingenious, but they have failed to con- vince. Want of power to assess and collect the money to discharge the obligation, is the obstacle in the way of maintaining the suit on the express contract, and the same difficulty stands in the way of an action founded on an implied promise. Indebitatus assumpsit is founded upon what the law terms an implied prdfiuse on the part of the defendant to pay what in good conscious he is bound to pay to the plaintiff. Where the case shows that it is the duty of the defendant to pay, the law imputes to him a promise to fulfil that obligation. Such a promise is always charged in the declaration, and must be so charged in order that the action may be maintained. But the law 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. Curtis' s Adm'rs. v. Fiedler, 2 Black, 478; Cary v. Curtis, 3 How. 236. Assumpsit 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. Unable to perceive that the plaintiff can recover in any view of the case, it becomes the duty of the court to give the instruction as prayed by the defendants. Verdict must be for the defendants, and the form of the verdict will be prepared accordingly. DILL et ids. v. INHABITANTS OF WAREHAM * 7 MbUmIJ {Mass.) 438. 1844 Assumpsit upon a written agreement dated July 27, 1837, with a. general indebitatus count for money had and received. In the written contract the town appeared to grant to the plaintiffs all the right of the town to take oysters from certain rivers and coves, for a term of five years, with certain reservations. In consideration CHAP, vni] DILL et cda. v. inhabitants of waheham 307 thereof, the plaintiffs agreed to pay to the town twelve and one-half cents for every bushel of oysters taken, and to make and keep a deposit of $500 in the hands of the town treasurer to secure payment. The breach assigned was that the town, after for a time performing its part of the agreement, wrongfully refused to grant permits to the plaintiffs (which were necessary under the statutes), forbade them to take the oysters, and permitted others to take them; "whereby the plaintiffs have been put to great expense for vessels and men employed for the purpose, and have lost the profits secured to them by said agree- ment," etc. Plea, general issue, with a specification of defense. At the trial, the contract was shown to have been regularly author- ized by votes of the town, the deposit was shown to have been made, and there was evidence of the breach assigned. The defendant re- quested the court to instruct the jury that the town had no authority to make the contract, and that the evidence woxild not support a verdict for the $500 paid. The court refused these requests, and in- structed the jury that the contract was valid. A verdict was returned for the plaintiffs for $4560.42, which was to be set aside, and a new trial granted, if the foregoing rulings and instruc- tions were erroneous; otherwise, judgment to be rendered upon the verdict. J. P. Rogers and Washburn, for defendants. Simmons and Gardiner, for plaintiffs. Shaw, C. J. [After reviewing colonial and state legislation.] . . . Such a transfer of the fishery, and the power of making contracts re- specting it, is not within the jurisdiction of towns, nor one of the corpo- rate powers conferred on them by law. The supposed contract, there- fore, upon which this action is brought, was one which the town of Wareham had no authority, as a corporation, to make, and the town is not bound by it. In regard to the sum of $500, as it appears that it was received by the treasurer and went to the use of the town, and was so received in ad- vance, upon a consideration which has failed, it must be regarded as money had and received by the town to the plaintiff's use; and therefore the action for that sum will lie. No special demand was necessary. Where there is a debt, a duty to pay money presently, not dependent upon any condition or contingency, an action may be brought to recover it, without a previous demand. . . . With the plaintiff's consent, the verdict may be amended, to stand as a verdict for $500, with interest from the date of the writ, and judg- ment may be entered upon it; otherwise, the verdict is to be set aside and a new trial granted.' « " It is said that an action for money had and received may be maintained against a municipal corporation, when the money has been received under such circumstances that, independently of express contract, the obligation of repayment is imposed as a matter of right and justice. Thus, when it is received under a contract made with- out authority or in violation of law, the duty arises to refund the money to the party 308 CASES ON MUNICIPAL OR PUBLIC CORPORATIONS [CHAP. VIII TURNER et al. v. CRUZEN et d* 70 Iowa, 202. 1886 Action by taxpayers of Adams County to cancel a contract made by the county for the purchase of a farm from defendant Cruzen for a poor-farm, and to restrain defendant Hunter as county treasurer from paying warrants issued for the purchase money. The supervisors of the county are also joined as defendants. The plaintiffs allege that the purchase was ultra vires because not authorized by a vote of the people. The answer, filed by Cruzen alone, shows that he has conveyed the property to the county, and that the latter has been occupying the same for a poor-farm for two years, and has never offered to reconvey the property nor to pay for the use of it. He avers that in any event the county should be made a party defendant. On demurrer to the answer, the Circuit Court granted a decree for the relief prayed for, and the defendants appealed. F. M. Davis and S. McPkerson, for appellants. T. M. Stuart and W. 0. Mitchell, for appellees. Adams, C. J. , . . The legal title to the property having been placed in the county, we are unable to see how the county could be divested by from whom it waa received, if, without aflfeming the illegal contract, the latter seeks only to recover his own money and prevent the defendant from unjustly retaining the benefit of its own illegal act. MorviUe v. American Tract Society, 123 Mass. 129. Dill V. Wareham, 7 Met. 438. White v. Franklin Bank, 22 Kck. 181. See also Thomas v. Richmond, 12 Wall. 349, 355. But in such cases it must appear that the money was actually and beneficially appropriated by the town or city in- its corporate ca- pacity. It cannot be treated as appropriated, merely because it has been applied by the unauthorized act of the town treasurer, or of any other person, to the payment of municipal debts, for the payment of which other provision had been made." Colt, J., in Agawam National Bank v. So. Hadley, 128 Mass. 503, at 508. "The moneys paid by the bidders went into the treasury of the city, and were afterward by different ordinances and resolutions appropriated to municipal purposes. To the different actions, as we have mentioned, various defenses have been inter- posed. In some of them, as already stated, the entire transactions giving rise to or connected with the alleged sale have been treated as transactions to which the city was an absolute stranger; in other words, a want of privity, as it is termed, between the bidders and the city has been alleged. This alleged want of privity, as we under- stand it, amounts to this: that inasmuch as the mayor and land committee had no authority to make the sale, they had no authority to pay the money which they re- ceived from the bidders into the treasury of the city, and therefore no obligation can be fastened from such unauthorized act upon the city. The position thus restricted in its statement is undoubtedly correct, but the facts of the cases go beyond this state- ment. They show an appropriation of the proceeds, and the liability of the city arises from the use of the moneys, or her refusal to refund them after their receipt. The city is not exempted from the common obligation to do justice, which binds indi- viduals. Such obligation rests upon all persons, whether natural or artificial. If the city obtain the money of another by mistake, or without authority of law, it is her duty to refund it, from this general obligation. If she obtain other property, which does not belong to her, it is her duty to restore it, or if used, to render an equiv- alent therefor, from the like obligation. {Argenti v. San Francisco, 16 Cal. 282.) The legal liability springs from the moral duty to make restitution. And we do not appreciate the morality which denies in such cases any rights to the individual whose money or other property has been thus appropriated. The law countenances no such wretched ethics; its command always is to do justice." Field, C. J., in Pimental v. San Francisco, 21 Cal. 352, at 362. See also the language of the same judge in Argenti v. San Francisco, 16 Cal. 256, at 283; McCracken v. San Francisco, 16 Cal. 591. CHAP. VIIl] TURNER et ol. V. CRUZEN et ol. 309 a decree to which it is not a party. It may be that the county has no desire to rescind, and could, in fact, show that its contract of purchase was not vMra vires. Without question, the county has a right to be heard before its title can be disturbed. Possibly the court below did not intend to disturb the title. The language of the decree is " that the contract between the defendant Cruzen and the board of supervisors of Adams County, for a poor-farm, is absolutely null and void." It may be that the intention in decreeing the invaUdity of the contract was merely to afford a basis for enjoining the payment of warrants issued for a part of the piurchase money. If this is so, then the court proceeded upon the theory that the county could be relieved of a part of the bur- den of its contract while retaining the entire benefit of it. Of such de- cree the coimty could not, of course, complain. But such a decree cannot, in our opinion, be sustained. It appears to us to be well settled as a rule, with one exception, that, where the consideration received by a corporation under an vltra vires contract can be restored, a court of equity will not relieve the corpora- tion, as against the contract, without providiug for a restoration of the consideration. Pratt v. Short, 53 How. Pr. 506; Leonard v. City of CanUm, 35 Miss. 189; Argmti v. San Francisco, 16 Cal. 255 (282); Moore v. Mayor, etc., of New York, 73 N. Y. 238; Lucas v. Co. Hunt, Ohio St. 488. It is no sufficient answer to say that Cruzen might still have his action against the county for reconveyance of the title. His right to a recon- veyance should be decreed to him at the same time that the county is relieved from payment. There is nothing in the decree now which would estop the county from contesting the right of Cruzen to a reconveyance, because the county is not a party to this decree. Nor is it a sufficient answer to say that Cruzen has already received a large part of the pur- chase money, and that no judgment is rendered against him for it, and that none is asked. If a court of equity could deprive him of a part of the purchase money without decreeing a reconveyance of the farm, it might have deprived him of the whole, if the farm had been sold wholly on credit, and no payment had yet been made. The principal involved would be the same. We are aware that there is a class of cases where courts of equity declare a contract ultra vires, and grant relief in favor of a corporation, without any decree for the restoration of the consid- eration received by the corporation. This is so where municipal bonds have been issued in excess of the constitutional limit of indebtedness, and the money obtained thereon has been expended. Courts of equity decree the cancellation of such bonds, or enjoin payment, without de- creeing repayment to the bondholders of the money received by the corporation on the bonds. But this results from the necessity of the case. If the courts should decree repayment, the very object of the constitutional provision would be defeated Reversed. 310 CASES ON MtTNICIPAL OE PUBLIC COKPOKATIONS [cHAP. VIII CITY OF VALPARAISO v. VALPARAISO CITY WATER COMPANY * 30 Ind. App. 316. 1903 Appeal from Circuit Court, Lake County. Action by the water company against the city. The complaint shows that in 1885, the plain- tiff's assignors accepted an ordinance which granted exclusive authority to construct a system of water-works and use the streets, to supply the city and inhabitants with water for fifty years. The ordinance fixed the rental per hydrant of the hydrants specifically provided for, and required that the grantees construct and maintain "additional hy- drants," whenever directed by the city council, at a rental of $50 per year each. The city reserved the right to piu-chase the system at any time after fifteen years, and a forfeiture in case of breach by the gran- tees was provided for. The plaintiff sues to recover $25 per hydrant for the rental or use of certain additional hydrants from January 1 to July 1, 1910, which hydrants had l^een directed, accepted, and used by the city. The complaint alleges further that the amount stated is the rea- sonable value of the use of the hydrants for that period. A demurrer was overruled. A. D. Bartholomew, H. A. GUlett, and H. H. Loring, for appellant. N. L. Agnew, for appellee. Black, J. . . . By way of objections to the complaint it is suggested that the contract provided for a monopoly by granting the exclusive use of the streets and the exclusive right to furnish the city and its in- habitants with water for a period of fifty years upon the conditions ex- pressed in the ordinance; that hence the city exceeded its powers by agreeing to forego and postpone the exercise of legislative and discre- tionary powers, and therefore the contract is void; also the contract to pay a fixed and determinate sum for hydrant rental for so long a period was against public policy, and void. . . . But we think the objections thus urged against the contract are not properly involved in this action, and that the decision of the cause does not require a determination as to the extent of the authority of the city in this exercise of its business powers in the making of a contract for the construction and maintenance of water-works, either with reference to the period of the franchise or with reference to the exclusiveness of the grant. No question is made as to the authority of the city to make a contract with the assignors of the appellee for the construction and maintenance by them or their succes- sors or assigns of a system of water-works for the city, and to provide therein for the payment of rentals by the city for the use of fire hydrants constructed and maintained under such contract. The furnishing of the use of the hydrants, the promised compensation for which it is here sought to recover, was the performance Jby the water-works company of CHAP. VIIl] CITY OP VALPAKAISO V. VALPARAISO CITY WATEE CO. 311 a whplly lawful consideration. If, in addition to its promise to pay for such use the reasonable value thereof, the city made other stipulations or promises beyond its authority, which could not be enforced against it because against public policy or unlawful, this would be no sufficient reason for its refusal to perform such lawful promise, based upon a •wholly lawful consideration. The particular promise violated by the ap- pellant was the promise to pay the hydrant rental after the use, and the action is to recover the value of the use as promised after the hydrants liad been actually provided and used, the stipulated time for pay- ment being past. The promise to pay for this use already enjoyed by the <;ity may be enforced without sustaining any unauthorized or unlawful promise of the city. It cannot be supposed that the rental for the use of the additional hydrants was affected, as to the amount thereof, to the detriment of the city, by the provisions of the contract thus questioned. ... In Hitchcock v. Galveston, 96 U. S. 341, the city, having power to xnake a valid contract to pave its streets, made such a contract, wherein it agreed to make payment for the work in certain bonds. It was con- tended that, since no express power was given to issue bonds for such purpose, the whole contract was inoperative and void. The Supreme ■Court of the United States, per Mr. Justice Strong, said that, if the city had no lawful authority to issue the bonds, it did not follow that the contract was wholly illegal and void, or that the plaintiff had no right under it. " They are not suing upon the bonds, and it is not necessary to their success that they should assert the validity of those instruments. It is enough for them that the city council have power to enter into a contract for the improvement of the sidewalks; that such a contract ■was made with them; that under it they have proceeded to furnish materials and do work as well as to assume liabilities; that the city has received, and now enjoys, the benefit of what they have done and fur- jiished; that for these things the city promised to pay; and that, after having received the benefit of the contract, the city has broken it. It ' matters not that the promise was to pay in a manner not authorized by law. . . . The contract between the parties is in force so far as it is law- ful. . . . Having received benefits at the expense of the other contract- ing party, it cannot object that it was not empowered to perform what it promised in return in the mode in which it promised to perform. This was directly ruled in State Board of Agriculture v. Citizens' St. Ry. Co., 47 Ind. 407, 17 Am. Rep. 702." In Nebraska City v. Gas Co., 9 Neb. 339, an action brought by the gas company against the city to recover the contract price for gas furnished under a contract to the city for a certain month, it having been urged as against any recovery under the contract that it contained certain illegal provisions respecting the ex- emption of property from taxation, and the payment of money out of the sinking fund of the city, devoted by law to another purpose, it was said by the court that, admitting that in these particulars the city au- thorities exceeded their powers (which, however, was not decided). ,312 CASES ON MUNICIPAL OK PUBLIC COEPOKATIONS [CHAP. VIII that would be no defense to the action; that under the charter they were authorized to contract for Ughting the streets with gas, and to bind the city for the price agreed upon; and that, so long as the city voluntarily received gaslight under the provisions of the contract, it could not resist payment of the agreed price simply because of these alleged illegal promises as to the particular fund from which the money should be drawn. "The consideration for these promises being entirely legal, and the price agreed upon being payable, if not otherwise, out of the general fund, these objectionable provisions may, if necessary, be rejected, and the rest of the contract permitted to stand; especially where, as here, the city has received the consideration for which the promises were made. Chitty, Cont, § 674. If the company were resisting a tax levied in violation of this agreement, or if they were endeavoring to compel pay- ment of a gas bill out of the sinking fund, the argument of counsel for the city in this behalf would be entitled to great weight, but under the issues in this case we deem it altogether inapplicable." ... In City of Brenham v. Brenkam Water Co. (Tex. Sup.), 4 S. W. 143, the action was brought to recover the stipulated price for the use of hy- drants from June 1, 1885, to January 1, 1886. After construing the con- tract as intended by the parties to confer on the water company the exclusive right to furnish all the water the city and its inhabitants might need to have furnished through a system of water-works for the full period of twenty-five years, and to be paid therefor; and after holding that the city did not possess power, to confer such rights, the court was of the opinion that the contract, by its terms, precluded the city from the proper exercise from time to time of its legislative power, and that it was unconstitutional, because it created a monopoly; and that, therefore, it was invalid. Yet it was held that, if the company furnished water between the time the works were put in operation imder the or- dinance passed June 1, 1885, and the 10th of July of that year, when the city declined further to regard the contract as binding, for that the city ought to be held liable. We do not mean to be taken as approving all the opinion of the court in this Texas case, and we refer to it as an instance where a court of high reputation, upon such a contract, ap^^ proved the recovery of the stipulated price for actual use and benefit under the contract. Illinois Trust & Sav. Bank v. City of Arkansas City, 76 Fed. 271, 22 C. C. A. 171, involved the question as to the right to re- cover from the city rentals for hydrants used under a contract in which the city assumed to grant the exclusive use of its streets to a private corporation. It was held, notwithstanding the exclusiveness of the grant that, after the contract had been substantially performed by the grantee, after the water-works had been constructed according to the terms of the contract, and after the city had accepted and used them for years, and had thus secured the substantial benefits of its grant, it could not repu- diate all the obligations it had the power to assume, because it assumed one that was beyond its power. It was further said: "No one who CHAP, vin] McDonald v. mayok, etc., of new york 313 does not infringe or threaten to infringe the exclusiveness of the grant in a contract made by a municipality can, after the substantial perform- ance of the contract by the grantee, be heard to say that the contract or grant is void on account of the exclusive character of the latter." In Maker v. City of Chicago, 38 111. 266, it was said: "If a municipal cor- poration, in dealing with individuals, assumes that it possesses certain corporate powers, upon which the validity of its acts depends, and it turns out that it does not possess the specific powers relied on, it is not thereby excused from the performance of its obUgations, if they can be performed through the agency of other powers that it does possess." In Dodge v. City of Council Bluffs, 57 la. 560, the court upheld the action of the trial court in sustaining a demurrer to a petition of taxpayers to restrain action, piu-suant to a contract for the construction of water- works, the accepted ordinance ptuporting to confer on the American Con- struction Company exclusive privileges. The court (page 566) said: " The ordinance purports to grant an exclusive right. Whether it is com- petent for the city to grant such a right we need not determine. If we should conclude that it was not, it is manifest that the ordinance would not be void. It would result merely that the right 'granted is not exclu- sive, and the plaintiffs, as mere taxpayers, cannot properly raise that question. Such question cannot properly be raised until a conflict arises between the American Construction Company and some person or per- sons or corporation claoming also a right from the defendant city to con- struct and operate water-works. Grant v. City of Davenport, 36 la. 406." See also Schipper v. City of Aurora, 121 Ind. 154. . . . ^Judgment affirmed. *■ . McDonald v. mayor, etc., of new york* 68 N. Y. 23. 1876 Appeal from order of the General Term of the Supreme Court in the first judicial department reversing a judgment in favor of plaintiff entered upon a verdict, and granting a new trial. FoLGER, J. The plaintiff sues to recover from the city the value of materials furnished by him to certain officials, which were used in the repair of a pubUc way. The amount he claims is over $1,600 in the whole. The materials were furnished at different times, in parcels, each of which, except one, was less in value than $250. He does not aver, nor did he prove in terms, that a necessity for the purchase or use of the materials was certified to by the head of the department of public works, or that the expenditure therefor was au- thorized by the conunon council (Laws of 1857, vol. 1, p. 886, ch. 446, 314 CASES ON MUNICIPAL OK PUBLIC COEPOKATIONS [CHAP. Vm I 38); nor did he aver or prove in terms, that a contract for the pur- chase of the materials was entered into by the appropriate head of de- partment, upon sealed bids or proposals, made in compUance with public notice advertised. {Id.) The existence and stringency of these statutory provisions are recognized by plaintiff's counsel, but the force of them is sought to be avoided. It is urged, that the object of the expenditure was proper, as it is part of the defendants' corporate duty to keep public ways in repair; that the material was delivered to the superintendent of roads, an official of the defendant, charged with carrying that duty into practical effect; and that the plaintiff had reason to beUeve that the superintendent was acting within the line of his duties. The first two of these propositions may be admitted; the third may not be. Doubt- less, to the apprehension of the plaintiff, the superintendent was so acting, as to do work which it was the duty of the defendant to cause to be done. But we see nothing in the case which brought to his mind, so as to create a beUef, that there had been a contract made for the material, as above indicated, or that the necessity for the expenditure had been certified to and authorized, as required by law. And though the superintendent of roads had certified to be correct, the bills for the m.aterials, rendered by the plaintiff, this did not meet the letter of the statute laws. Such certification did not precede the reception of the material; nor was the certification by the head of the department, nor was the taking and use of the material, nor payment for it, au- thorized by the common council. Nor can it be that the provisions of the statute, are alone for the instruction of the department and offi- cials of the defendant. They were a restraint upon them, but upon other persons as well. They put upon all who would deal with the city, the need of first looking for the authority of the agent with whom they bargain. Quite clearly do they impose upon the paying agent of the defendant a prohibition against an unauthorized expenditure. And are they not also a restraint upon the municipality itself? They are fitted to insure official care and deliberation, and to hold the agents of the pubUc to personal responsibility for expenditure; and they are a limit upon the powers of the corporation, inasmuch as they prescribe an exact mode for the exercise of the power of expenditure. . . . But the main reliance of the plaintiff, is upon the proposition that the defendant, having appropriated the materials of the plaintiff and used them, is bound to deal justly and to pay him the value of them. The case of Nelsm v. The Mayor (63 N. Y. 535), is cited. The learned judge who delivered the opinion in that case does, indeed, use language which approaches the plaintiff's proposition; but the judgment in that case did not go upon the doctrine there put forth; and when the opinion is scrutinized it does not quite cover this case. It is said: "If it (the city), obtains property under a void contract, and actually uses the property, and collects the value of it from property owners by means of CHAP, viii] McDonald ». matok, etc., of new yokk 315 assessments, the plainest principles of justice require that it should make compensation, for the value of such property, to the person from -whom it was obtained." The words we have marked in italics indi- cate a difference between the two propositions; though it is to be ad- mitted, not a great difference in the principles upon which each rests. The case in the California courts (Argenti v. San Francisco, 16 Cal. 255), goes upon the ground set forth in the opinion in Nelscm's Case, {supra). There is, however^ a more radical difference, than that above noted, in the two cases cited and that in hand. In those two cases the way was open for implying a promise to pay what the property was worth, if with no disregard of statute law, such an impUcation was admissible; that is to say, there was in those cases, so far as appears from the facts, no express inhibition upon the city that it should not incur a liability save by an express contract. Here there is an express legislative inhibition upon the city, that it may not incur liability unless by writing and by record. How can it be said that a munici- pality is liable upon an implied promise, when the very statute which continues its corporate life, and gives it its powers, and prescribes the mode of the exercise of them, says, that it shall not, and hence cannot, become liable, save by express promise? Can a promise be implied, which the statute of frauds says must be in writing to be valid? How do the cases differ? The Bank of the United States v. Dandridge (supra) Il2 Wheat. 64], which is a leading case upon the doctrine of the liabiUty of a corporation aggregate, upon a promise impUed, holds, as we have already said, that if the charter imposes restrictions upon the manner of contracting, they must be observed. And the California cases above cited concede the same. It is plain that if the restriction put upon municipalities by the legislature, for the purposes of reducing and limit- ing the inciuring of debt and the expenditure of the pubUc money, may be removed, upon the doctrine now contended for, there is no legislative remedy for the evils of municipal government, which of late have ex- cited so much attention and painful foreboding. Restrictions and inhibition by statute are practically of no avail, if they can be brought to naught by the unauthorized action of every official of lowest degree, acquiesced in, or not repudiated, by his superiors. Donovan v. The Mayor, etc. (33 'N. Y. 291), seems to be an authority in point, though the exact question now presented was not considered. And incidental remarks of Denio, J., in Peterson v. The Mayor (17 N. Y. 449), are to the same purport. And see Peck v. Burr (10 N. Y. 294). The views here set forth, are not to be extended beyond the facts of the case. It may be, that where a municipality has come into the possession of the money or the property of a person, without his voluntary inten- tional action concurring therein, the law will fix a Uabihty and imply a promise to repay or return it. Thus, money paid by mistake, money collected for an illegal tax or assessment; property taken and used by an official, as that of the city, when not so; — in such cases, it may 316 CASES ON MUNICIPAL OK PUBIJC CORPORATIONS [CHAP. VIII be that the statute will not act as an inhibition. The statute may not be carried further than its intention, certainly not further than its letter. Its purpose is to forbid and prevent the making of contracts by unauthorized official agents, for supplies for the use of the corpora- tion. This opinion goes no further than to hold, that where a person makes a contract with the city of New York for suppKes to it, with- out the requirements of the charter being observed, he may not re- cover the value thereof upon an implied KabiUty. The judgment should be affirmed. LONDON, ETC., LAND COMPANY v. CITY OF JELLICO 103 Tenn. 320. 1899 Caldwell, J. The London and New York Land Company brought this bill] against the city of Jellico to recover a certain svun of money for grading one of defendant's streets, under a contract made for that purpose. The chancellor dismissed the bill, but the court of chancery appeals reversed his action, and pronounced a decree in favor of the complainant for $476.86. The principal defense interposed by the city is rested upon the fact that the contract under which the grading was done was made at a special meeting of the board of mayor and aldermen, called without notice to some of the aldermen, and held in their absence. The result of the authorities upon the subject is that, as a general rule, every member of a municipal council is entitled to reasonable notice of special meetings, and that no important action can lawfully be taken at such meeting unless such notice has first been given, or unless the members not notified actually attend and par- ticipate in the business of the meeting. [Citations omitted.] The present contract was confessedly subject to this general rule, and, being so, it was undoubtedly invalid, and, nothing else appearing, the complainant would inevitably be repelled from court. There is another aspect of the case, however, that demands the consideration of the court. The contract was fair and reasonable in its terms, and was within the scope of the powers conferred upon the council for the improvement of streets. It soon became known to the members of the council, who permitted it to go unrescinded and un- challenged, and allowed the complainant to continue the work through several months to completion, in the belief that all was satisfactory, and with the unquestionable result of large and permanent advantage to the municipality. Having thus received benefits for which the council might well have contracted in a proper meeting, the city will CHAP. VIIl] TOVm OF HACKETTSTOWN V. SWACKHAMEB 317 not now be heard to deny liability therefor. In such a case, liability arises by implication of law, and payment must be made according to the benefits received. The law, which always intends justice, implies a promise. [Citations omitted.] Since the price named in the in- valid contract is shown to be entirely fair and reasonable, not only in view of the labor done, but also in reference to the benefits conferred, it will be taken as the true measure of recovery. . . . The decree of the Court of Chancery appeals is affirmed.'^ 4. Iddfyility for Borrowed Money and on Commercial Paper TOWN OF HACKETTSTOWN v. SWACKHAMER 37 N. J. Law, 191. 1874 Beaslet, C. J. The note, which is the subject of this suit, was given by the treasurer of the town of Haekettstown, in the name and behalf of the town, for money borrowed. This case, therefore, raises the question whether a municipal corporation, in the absence of an express power for that purpose, can contract for loans for the supply of its or- dinary expenses. At the present time it seems to be generally conceded that a private corporation, constituted with a view to pecuniary profit, has, by impli- cation, when not in this particular specially restricted, the power in question. The law was so held in this State, in the case of Lucas V. Pitney, 3 Dutcher, 221, and the same rule has been repeatedly recog- nized in other decisions. And this result is the appropriate product of the principle that corporate powers which are the necessary accom- paniments of powers conferred, will be implied. In these instances the ability to borrow money is so essential that without it the business authorized could not be conducted with reasonable efficiency, and, as it cannot be supposed that it was the legislative intent to leave the company in so imperfect a condition, the inference is properly drawn that the power to raise money in this mode is inherent in the very con- stitution of such corporate bodies. Such a deduction is simply, in eifect, a conclusion that the lawmaker designed to authorize the use of the means fitted to accomphsh the purpose in view. It has been often said that the means which can be thus raised up by implication must be necessary to the successful prosecution of the enterprise, and ' For an interesting decision upholding an action on a contract notwithstanding an irregularity in the passage of the ordinance under which it was made, see Moore v. Mayor, etc., of New York, 73 N. Y. 238. 318 CASES ON MUNICIPAL OE PUBLIC COKPOEATIONS [CHAP. VIII that the circumstance that they are convenient will not legalize their introduction. But the necessity here spoken of does not denote ab- solute indispensableness, but that the power in question is so essential that its non-existence would render the privileges granted practically inoperative, or incomplete. It is, consequently, obvious that a presump- tion, resting on such a basis as this, must spring up in favor of almost the entire mass of commercial and manxifacturing corporations, for without the franchise to effect loans, the chartered business could be but imperfectly transacted. And yet, even in such instances, the usual inference that such an implied power exists may be repelled by the lan- guage of the particular charter or the pecuUar circumstances of the case. In a word, the rule of law in question is nothing but the discovery, by the courts, of the legislative intent, such intent having been ascertained by a construction of charters, as applied to the subject matters. Taking this as the groimd of our reasoning, I am at a loss to perceive how it can be inferred that a power to borrow money is an appendage to the usual franchises given to municipal corporations. Such a right cannot, in any reasonable sense, be said to be necessary within the meaning of that term as abeady defined. Under ordinary circumstances, it is not certainly indispensable as common experience demonstrates. In the great majority of instances the municipal affairs are, with ease and completeness, transacted without it. I do not wish to be understood as indicating that under certain special conditions an opposite deduc- tion may not be legitimately drawn. It is plain that it is practicable to impose a duty on a municipality requiring the immediate use of large sums of money, and in such a situation the inference may become irresistible that it was intended that funds were to be provided by loans. My remarks are to be restricted to that class of cases where charters are granted containing nothing more than the usual franchises incident to municipal corporations, and under such conditions it seems clear to me that the power to borrow money is not to be deduced. I have al- ready said that it does not appear to be a necessary incident to the powers granted, for such powers can be readily and eflBciently executed in its absence. It would be to fly in the face of aU experience to claim that the ordinary municipal operations cannot be efficiently carried on except with the assistance of borrowed capital. Without any help of this kind, it is well known that, our towns and cities have long been, and are now being, improved and governed. For the attainment of these ends it has not generally been found necessary to resort to loans of money. The supplies derived annually from taxation have been found amply sufficient for these purposes. Consequently I am imable to perceive any necessity to borrow money, under these conditions, from which the gift of such power to borrow is to be implied. It un- doubtedly is clear that if, as has been asserted, the ends of the muni- cipal charter can be conveniently reached, without a resort to the device of raising moneys by loan, there is not the least legal basis for a claim CHAP. VIIl] TOWN OF HACKETTSTOWN V. SWACKHAMEK 319 of the power to obtain funds in that way. Granted the fact that the charter can be executed with reasonable ease and with completeness, the conclusion is inevitable that the power in question cannot be called into existence by intendment, and as I claim the fact to exist I must, of necessity, reject the right of implication in question. Nor is there anything in the language or in the frame of the present charter which would seem to favor the idea of the existence of an authority in the corporation to borrow money. It is in the ordinary fashion, giving the usual prerogatives of administration, improvement,, and police, and then follows the important clause, declaring "that it shall be lawful for the common council, from year to year, to vote and raise by tax such sum or sums of money as they shall deem necessary and proper." Of course there can be no doubt with respect to the pur- poses to which the money thus authorized to be levied is to be applied. It is the means whereby the duties of local government are to be dis- charged. There is no limitation on the amount that may be raised. But there is a limitation on the method of raising it. It is not a general authority to raise money in any mode which the common council shall devise. The restriction is, it shall be raised " by tax." How can it be claimed, then, that it can be raised by loan? The power to borrow money is, in a certain sense, a larger power than that of raising money by taxation. There is, in the natiu-e of the thing, an immediate check to excessive taxation; that is, the resistance of the parties taxed. There is none such in the power to borrow, for the immediate burthen of a loan is but slightly felt. Indeed, it is difficult to imagine any greater power that one person can confer upon another than an unUmited au- thority to borrow money. It is a common thing for an agent to have the right to contract debts in the name of his principal; but a very un- conunon thing for such agent to be authorized to borrow money ad libitum. A more dangerous confidence could scarcely be given. If the municipal authorities under one of these charters, which in these days are so common, have this power to borrow, which is claimed for them,, such power is practically unlimited. I see no limit to it, except the good sense, virtue, and intelligence of the depositaries of it. It may be resorted to on all occasions in the management of the affairs of the city. The use of such a power might, at the will of the officials, be co-extensive with the corporate operations. All the usual enterprises and improve- ments could be undertaken on a basis of a credit; and annual taxation, instead of being made the basis and measure of annual expenditure, could readily be converted into a subordinate auxiliary to an extended system of loans. It is plain that such a power would be full of peril to the owners of cityJproperty, and the widest door would be thus thrown open to extravagance, recklessness, and fraud. In my judgment, if such a system was judicially recognized, and such recognition was promulgated, almost every city in the State would be soon overwhelmed with indebtedness. Nor do I for a moment believe that a municipality 320 CASES ON MUNICIPAL OK PUBUC COKPOEATIONS [CHAP. VIU could obtain from any legislature an unrestricted power to borrow money. It is probable that such a boon has never been solicited by any pubKc corporation. Our statutory history evinces clearly that the power in question has been granted with a stinted hand and circum- scribed by well defined limitations. My judgment is entirely averse to raising up this dangerous power by impHcation. If the rules of law com- pelled the court to make such implication, it seems to me such result would be largely injurious to the well-being of the State; and it is, there- fore, a satisfaction to know such rules of law do not exist. The au- thority to tax affords a sufficient source of funds requisite for all mtmi- dpal purposes, and the consequence is there can be no inference of the existence of the superfluous power to borrow money for the same end. An examination of the books will show that this question has not as yet received much juoicial consideration. The courts of Wisconsin and Ohio have had this matter before them, and have arrived at a result the opposite of that which has just been stated. I have carefuUy weighed the arguments of these learned tribunals, but they have failed to convince my understanding. The cases referred to are those of MUls V. Gleason, 11 Wis. 470; and Bank v. Chillicothe, 7 Ohio, part II, 31. As a counterpoise to these views stands the weighty opinion of Judge Dillon, in his treatise on Municipal Corporations, vol. 1, § 81. Much emphasis is added to this expression of opinion, from the fact that this author had before him, at the time he wrote, the opposing cases just cited. In this state of the authority, it cannot be claimed that the principle is so settled that the judgment of this court cannot be freely exercised with respect to this important subject. My conclusion is that already expressed, that a right to borrow money is not to be in- ferred from any of the ordinary powers conferred in the charters of mu- nicipal corporations, and that, under ordinary circumstances, such a power can proceed only from an express grant to that effect. Nor do I think that it adds anything to the right, to enforce the note in this case, that the money which it represents and which was borrowed has been expended in behalf of the corporation for legitimate purposes. The argument on this head was that, as the money had gone for the benefit of the corporation, the law, upon general principles, would com- pel its re-payment. If this is so, then the rejection of an impUed power to borrow is of little avail. The doctrine, although repudiated in the abstract, would be ratified in the concrete. If this contention is tenable, it is impossible to close the eye to the fact that the loan, although held illegal and void in its inception, would thus, by a subsequent act, be rendered valid and enforceable. To style it, as was done in the argu- ment, money had and received, would not change the real nature of the transaction. To permit a recovery of it in this secondary form would be, virtually and in truth, to effectuate a loan, and all the evils attend- ant on the power to borrow money in an unrestricted form, would supervene. And it is to be noted, that it is altogether a fallacy to argue CHAP. VIIl] TOWN OV HACKETTSTOWN V. SWACKHAMEB 321 that the law will raise an implied promise to repay the money after it has been used. The impediment to such a theory is, that the corpora- tion has not the competency to make the promise thus sought to be implied. An express promise, to the effect contended for, would be illegal, and, therefore, clearly, the law will not create one by implica- tion. It is not the case of a principal using money borrowed by his agent without authority, but it is the case of a principal who is incapaci- tated by law from borrowing, and who, therefore, cannot legalize the act, either directly or by circuity. Perhaps a parallel instance would be presented in case of a loan to a married woman at common law, the money being used by her. Her promise to repay the loan would be void; and, from the fact of her having made use of the money, no implied promise in law could be deduced. The lender of such money may, perhaps, have his redress against the officer of the corporation, who unjustifiably held himself out as possessed of the right to take the loan in the name and on the responsi- bility of the city, or by a recourse to equity, asking to be subrogated to the rights of those creditors who have received his money, instead of having their debts paid by the corporation. But even if the holder of this note should be remediless, the result is the same. No one can justly reproach the law for not providing him a remedy for his own folly or in- discretion. Such folly or indiscretion may have enabled the city officials to create a burthen, or may have stimulated them to acts of extrava- gance which would not have been otherwise created or done. It is but just that the individual who has occasioned the evil should bear the loss. / But whether the owner of this paper be remediless or not, it is enough for the present purpose to say that there is no apparent ground on which this money, thus illegally loaned, can be recovered by an action at law. The establishment of these general principles necessarily leads to a decision gaainst the plaintiff in this case. But there are narrower grounds which would conduct to the same result. On the admission that the common council, which is the ruling power of the corporation, had authority to contract the debt in question, it was not shown at the trial, with anything like legal certainty, that this loan was either authorized or ratified by such body. The treasurer obtained the' money and gave the note. The proof of his authorization consisted in his statement that he had a "verbal authority to borrow money needed for the purposes of the town." This is entirely too loose. Such a power could not be transferred, except by a formal resolution, passed at a legal meeting of the council, or by an ordinance duly enacted. Nor was it shown that the fact of the money's having been expended for town purposes, was ever known to the council. The result is that, at the trial, there was proof neither of the authorization of the treasurer, nor of ratification of his act. One of the essentials of the plaintiff's case was wanting to it. On this ground alone there must be a new trial. 322 CASES ON MUNICIPAL OR PUBLIC COEPOKATIONS [CHAP. VIII The further question was discussed at the bar, whether a municipal corporation, lacking a special "authority to that end, can execute a promissory note. I have examined the subject, but the views already expressed render it unnecessary to pronounce any final conclusion with respect to it, for the purposes of the present case. I may say, however, that my present view is, that a corporate body of this character has the general and inherent right to execute a note as a voucher of indebt- edness, but that such note will not have the effect, when in the hands of a bona fide holder before maturity, of cutting off the equities existing between the maker and payee. In this respect I fully concur in the learned opinion of j Mr. Justice Bradley, recently read in the Supreme Court of the United States, in the case of The Mayor v. Raij, 19 Wall. 468. Let a venire de novo be awarded. LITCHFIELD v. BALLOU 114 U. S. 190. 1885 This was a bill in chancery to enforce payment of moneys loaned to a municipality in violation of law, and for which it had been held that an action could not be maintained at law. Biichanan v. Litchfield, 102 U. S. 278. The facts are stated in the opinion of the court. John M. Palmer and B. S. Edwards, for appellant. D. T. lAttler, for appellees. MiLLEH, J. This is an appeal from a decree in chancery of the Circuit Court for the Southern District of Illinois. The suit was commenced by a bill brought by Ballou against the city of Litchfield. Complainant alleges that he is the owner of bonds is- sued by the city of Litchfield to a very considerable amount. That the money received by the city for the sale to him of these bonds was used in the construction of a system of water-works for the city, of whichjthe city is now the owner. He alleges that one Buchanan, who was the owner of some of these bonds brought suit on them in the same court and was defeated in his action in the Circuit Court and in the Supreme Court of the United States, both of which courts held the bonds void. He now alleges that, though the bonds are void, the city is liable to him for the money it received of him, and as by the use of that money the water-works were constructed, he prays for a decree against the city for the amount, and if it is not paid within a reasonable time to be fixed by the court, that the water-works of the city be sold to satisfy the decree. The bill also charges that he was misled to purchase the bonds by the false statements of the officers, agents and attorneys of the city, that the bonds were valid. Other parties came into the liti- CHAP. VIIl] UTCHFIELD V. BALLOT! 323 gation, and answers were filed. The answer of the city denies any- false representations as to the character of the bonds, denies that all the money received for them went into the water-works, but part of it was used for other piu-poses, and avers that a larger part of the sum paid for the water-works came from other sources than the sale of these bonds, and it cannot now be ascertained how much of that money went into the works. The case came to issue and some testimony was taken, the substance of which is that much the larger part of the money for which the bonds were sold was used to pay the contractors who built the water-works, while a very considerable proportion of the cost of these works was paid for out of taxation and other resources than the bonds. There is no evidence of any false or fraudulent representations by the authorized agents of the city. The bonds were held void in the case of Biuihman v. Litchfield, 102 U. S. 278, because they were issued in violation of the following provision of the Constitution of Illinois: "Article IX, Section 12. No county, city, township, school dis- trict, or other municipal corporation, shall be allowed to become indebted in any manner, or for any purpose, to an amoimt, including existing in- debtedness, in the aggregate exceeding five per centum on the value of the taxable property therein, to be ascertained by the last assessment for State and county taxes, previous to the incurring of such indebtedness." It was made to appear as a fact in that case, that at the time the bonds were issued the city had a pre-existing indebtedness exceeding five per cent of the value of its taxable property, as ascertained by its last assessment for State and county taxes. The bill in this case is based upon the fact that the bonds are for that reason void, and it makes the record of the proceedings in that suit an exhibit in this. But the complainant insists that, though the bonds are void, the city is bound, ex cequo et bono, to retiu-n the money it re- ceived for them. It therefore prays for a decree against the city for the amount of the money so received. There are two objections to this proposition: 1. If the city is liable for this money, an action at law is the appropriate remedy. The action for money had and received to plaintifiE's use is the usual and adequate remedy in such cases where the claim is well founded, and the judg- ment at law would be the exact equivalent of what is prayed for in this bill, namely, a decree for the amount against the city, to be paid within the time fixed by it for ulterior proceedings. In this view the present bill fails for want of equitable jurisdiction. 2. But there is no more reason for a recovery on the implied con- tract to repay the money, than on the express contract found in the bonds. The language of the Constitution is that no city, etc., " shall be al- 324 CASES ON MUNICIPAL OK PUBLIC CORPORATIONS [CHAP. VIII lowed to become indebted in any manner or for any purpose to an amount including existing indebtedness, in the aggregate exceeding five per centum on the value of its taxable property." It shall not become in- debted ; shall not incur any pecuniary liability. It shall not do this in any manner. Neither by bonds, nor notes, nor by express or implied promises. Nor shall it be done for any purpose. No matter how ur- gent, how useful, how unanimous the wish. There stands the existing indelitedness to a given amount in relation to the sources of payment as an impassable obstacle to the creation of any further debt, in any man- ner, or for any purpose whatever. If this prohibition is worth anything it is as effectual against the im- plied, as the express, promise, and is as binding in a court of chancery as a court of law. Counsel for the appellee in their brief, recognizing the difficulty here pointed out, present their view of the case in the following language: "The theory of relief asstmied by the bill is, that notwithstanding the bonds were wholly invalid, ancJno suit at law could be successfully maintained either upon the bonds or upon any contract as such grow- ing out of the bonds, yet as the city of Litchfield is in possession of the money received for the bonds, or, which is the same thing, its equivalent in property identified as haying been procured with this money and having repudiated and disclaimed its UabUity in respect of the bonds, it must, upon well established equitable principles, restore to the complainants what it actually received, or at least, so much of -what it received as is shown now to be in its possession and in its power to restore." If such be the theory of the bill, the decree of the court is quite un- warranted by it. The money received by the city from Ballou has long passed out of its possession, and cannot be restored to complain- ant. Neither the specific money nor any other money is to be found in the safe of the city or anywhere else under its control. And the de- cree of the court, so far from attempting to restore the specific money, declares that there is due from the city of Litchfield to complainants a sum of money, not that original money, but a sum equal in amount to the bonds and interest on them from the day of their issue. Is this a decree to return the identical money or property received, or is it a de- cree to pay as on an implied contract the sum received with interest for its use? As regards the water-works, into which it is said the money was trans- muted; if the theory of counsel is correct, the water-works should have been delivered up to plaintiffs as representing their money, as property which they have purchased, and which, since the contract has been de- clared void, is their property as representing their money. In this view the restoration to complainants of the property which represents their money puts an end to obligations on both sides growing out of the transaction. The complainants, having recovered what was theirs. CHAP. Vni] LITCHFIELD V. BALLOU , 325 have no further claim on the city. The latter having discharged its trust by returning what complainant has elected to claim as his own, is no longer liable for the money or any part of it. But here also the decree departs from what is now asserted to be the principle of the bill. Having decreed an indebtedness where none can exist, and declared that complainant has a lien on, not the ownership of, the water-works, it directs a sale of the water-works for the payment of this debt and the satisfaction of this lien. If this be a mode of pursuing and reclaiming specific property into which money has been transmuted, it is a new mode. If the theory of appellee's counsel be true, there is no lien on the property. There is no debt to be secured by a lien. That theory discards the idea of a debt, and pursues the money into the property, and seeks the property, not as the property of the city to be sold to pay a debt, but as the prop- erty of complainant, into which his money, not the city's, has been in- vested, for the reason that there was no debt created by the transaction. The money received on the bonds having been expended, with other fimds, raised by taxation, in erecting the water-works of the city, to impose the amount thereof as a lien upon these public works would be equally a violation of the constitutional prohibition, as to raise against the city an impUed assumps^ for money had and received. The holders of the bonds and agents of the city are partidpes criminis in the act of violating that prohibition, and equity will no more raise a resulting trust in favor of the bondholders than the law will raise an implied as- sumpsit against a pubUc policy so strongly declared. But there is a reason why even this cannot be done. Leaving out of view the question of tracing complainants' money into these works, it is very certain that there is other money besides theirs in the same property. The land on which these works are con- structed was bought and paid for before the bonds were issued or voted. The streets through which the pipes are laid are public property, into which no money of the complainants entered. Much, also, of the ex- pense of construction was paid by taxation or other resources of the city. How much cannot be known with certainty, because, though the officers of the city testify that on the books a separate water-works account was kept, there is no evidence that the funds which went to build these works are traceable by those books to their source in any instance. If the complainants are after the money they let the city have, they must clearly identify the money, or the fund, or other property which represents that money, in such a manner that it can be reclaimed and delivered without taking other property with it, or injuring other per- sons or interfering with others' rights. It is the consciousness that this cannot be done which caused the court and coimsel to resort to the idea of a debt and a lien which cannot be sustained. A lien of a person on his own property which is and has 326 CASES ON MUNICIPAL OB PUBUC CORPORATIONS [CHAP. Till always been his, in favor of himself, is a novelty which only the neces- sities of this case could suggest. Another objection to this assertion of a right to the property is, that the bondholders, each of whom must hold a part of whatever equity there is to the property, are numerous and scattered, and the relative amount of the interest of each in this property could hardly be cor- rectly ascertained. The property itself cannot be divided; its value consists in its unity as a system of water-works for the city. Without the land and the use of the streets, the value of the remainder of the plant is gone. In these, complainants can have no equity. The decree of the court is reversed and the case remanded, loith directions to^dismiss the hill. . Harlan, J., dissented. TOWN OF COLOMA v. EAVES 92 U. S. 484. 1875 Error to the Circuit Court of the United States for the Northern District of Illinois. Assumpsit brought by the plaintiff below to recover jthe amount due on the coupons attached to certain bonds, purporting to have -been issued by the toAwn of Coloma, through its proper officers, to the Chicago and Rock River Railroad Company, in payment of a subscription of $50,000 by the town to said company. The form of the bond is as follows: " United States op America ; ($1,000. "CoTJNTSr OP WmTBSIDE, "State of Illinois, Town aj Coloma: — "Know all men by these presents, That the townsMp of Coloma, in the County of Whiteside, and State of Illinois, acknowledges itself to owe and be indebted to the Ciiicago and Rock River Railroad Company, or bearer, in the sum of $1,000, lawful money of the United States; which siim the said town of Coloma promises to pay to the Chicago and Rock River Railroad Company, or the bearer thereof, on the first day of July, 1881, at the office of the treasurer of the County of Whiteside aforesaid, in the State of Illinois, on the presenta- tion of this bond, with interest thereon from the first day of January, 1872, at the rate of ten per centum per annum, payable annually at the office of the treasurer of the County of Whiteside aforesaid, on the presentation and surrender of the annexed coupons. " (U. S. $5 revenue-stamp.), "This bond is issued imder and by virtue of a law of the State of Illinois en- titled ' An Act to incorporate the Chicago and Rock River Railroad Company,' approved March 24, 1869, and in accordance with a vote of the electors of said CHAP. Vin] TOWN OF COLOMA V. EAVES 327 township of Coloma, at a regular election held July 28, 1869, in accordance with said law, and under a law of the State of Illinois entitled ' An Act to fund and provide for the paying of the railroad debts of counties, townships, cities, and towns,' in force April 16, 1869; and, when this bond is registered in the State auditor's office of the State of Illinois, the principal and interest will be paid by the State treasurer,^ as provided by said last-mentioned law. "In witness whereof, the supervisor and town-clerk of said town have here- unto set their hands and seals this first day of January, a. d. 1872. " (Signed) M. R. Adams, Supervisor. (seal.) "(Signed) J. D. Davis, Towrv-Clerk. (seal.)" Recovery was resisted by the town, mainly upon the alleged ground of a want of power in the officers of the town to issue the bonds, because the legal voters of the town had not been notified to vote upon the question of the town's making the subscription in question. On the trial of the case, judgment was rendered for the plaintiff for the amount of the coupons, and interest after they were due. C. M. Osbom, for plaintiff. J. Grant, contra. Strong, J. It appears by the record that the plaintiff is a bona fide holder and owner of the coupons upon which the suit is founded, having obtained them before they were due, and for a valuable consideration paid. The bonds to which the coupons were attached were given in payment of a subscription of $50,000 to the capital stock of the Chicago and Rock River Raiboad Company, for which the town received in re- turn certificates of five hundred shares of $100 each, in the stock of the company. That stock the town retains, but it resists the payment of the bonds, and of the coupons attached to them, alleging that they were issued without lawful authority. \ Saying nothing at present of the dishonesty of such a defense while the consideration for which the bonds were given is retained, we come at once to the question, whether authority was shown for the stock sub- scription, and for the consequent issue of the bonds. At the outset, it is to be observed that the question is not between the town and its own agents; it is rather between the town and a person claiming through the action of its agents. The rights of the town as against its agents may be very different from its rights as against parties who have hon- «stly dealt with its agents as such, on the faith of their apparent authority. By an act of the legislature of Illinois, the Chicago and Rock River Railroad Company was incorporated with power to build and operate a railroad from Rock Falls on Rock River to Chicago, a distance of about one himdred and thirty miles. The tenth section of the act en- acted that, "to aid in the construction of said road, any incorporated city, town, or township, organized under the township organization laws of the State, along or near the route of said road, might subscribe to the capital stock of said company." That the town of Coloma was one of the municipal divisions empowered by this section to subscribe 328 CASES ON MUNICIPAL OE PUBLIC COEPOKATIONS [CHAP. VIII fully appears, and also that the railroad was built into the town before the bonds were issued. But it is upon the eleventh section of the act that the defendant relies. That section is as follows : "No such subscription shall be made until the question has been submitted to the legal voters of said city, town, or township, in which the subscription is proposed to be made. And the clerk of such city, town, or township, is hereby required, upon presentation of a petition signed by at least ten citizens who are legal voters and taxpayers in such city, town, or township, stating the amount proposed to be subscribed, to post up notices in three public places in each town or township; which notices shall be posted not less than thirty days prior to holding such election, notifying the legal voters of such town or township to meet at the usual places of holding elections in such town or township, for the purpose of voting for or against such subscriptions. If it shall appear that a majority of all the legal voters of such city, town, or township, voting at such election, have voted ' for subscription,' it shall be the duty of the president of the board of trustees, or other executive officer of such town, and of the supervisor in townships, to subscribe to the capital stock of said railroad company, in the name of such city, town, or town- ship, the amount so voted to be subscribed, and to receive from such company the proper certificates therefor. He shall also execute to said company, in the name of such city, town, or township, bonds bearing interest at ten per cent per annum, which bonds shall run for a term of not more than twenty years, and the interest on the same shall be made payable annually; and which said bonds shall be signed by such presi- dent or supervisor or other executive officer, and be attested by the clerk of the city, town, or township, in whose name the bonds are issued." Sect. 12 provides, "It shall be the duty of the clerk of any such city, town, or township, in which a vote shall be given in favor of subscrip- tions, within ten days thereafter, to transmit to the county-clerk of their counties a transcript or statement of the vote given, and the amoimt so voted to be subscribed, and the rate of interest to be paid." Most of these provisions are merely directory. But conceding, as we - do, that the authority to make the subscription was, by the eleventh section of the act, made dependent upon the result of the submission of the question, whether the town would subscribe, to a popular vote of the township, and upon the approval of the subscription by a majority of the legal voters of the town voting at the election, a preliminary in- quiry must be. How is it to be ascertained whether the directions have been followed? whether there has been any popular vote, or whether a majority of the legal voters present at the election did, in fact, vote in favor of a subscription? Is the ascertainment of these things to be before the subscription is made, and before the bonds are issued? or must it be after the bonds have been sold, and be renewed every time a claim is made for the payment of a bond or a coupon? The latter appears to us inconsistent with any reasonable construction of the CHAP. Vm] TOWN OF COLOMA V. EAVES 329 statute. Its avowed purpose was to aid the building of the railroad by placing in the hands of the railroad company the bonds of assenting munidpalities. These bonds were intended for sale; and it was ration- ally to be expected that they would be put upon distant markets. It must have been considered, liiat the higher the price obtained for them the more advantageous would it be for the company, and for the cities and towns which gave the bonds in exchange for capital stock. Every- thing that tended to depress the market value was adverse to the object the legislature had in view. It could not have been overlooked that their market value would be disastrously affected if the distant purchasers were under obligation to inquire before their purchase, or whenever they demanded payment of principal or interest, whether certain con- tingencies of fact had happened before the bonds were issued, — con- tingencies the happening of which it would be almost impossible for them in many cases to ascertain with certainty. Imposing such an obligation upon the purchasers would tend to defeat the primary pur- pose the legislature had in view; namely, aid in the construction of the road. Such an interpretation ought not to be given to the statute if it can reasonably be avoided; and we think it may be avoided. At some time or other, it is to be ascertained whether the directions of the act have been followed; whether there was any popular vote; or whether a majority of the legal voters present at the election did, in fact, vote ia favor of the subscription. The duty of ascertaining was plainly intended to be vested somewhere, and once for all; and the only persons spoken of who have any duties to perform respecting the election, and action consequent upon it, are the town clerk and the supervisor or other executive officer of the city or town. It is a fair presumption, therefore, that the legislature intended that those officers, or one of them at least, should determine whether the requirements of the act prior to a subscription to the stock of a railroad company had been met. This presumption is strengthened by the provisions of the twelfth section, which make it the duty of the clerk to transmit to the county clerk a transcript or statement, verified by his oath, of the vote given, with other particulars, in case a subscription has been voted. How is he to perform this duty if he is not to conduct the 'election, and to determine what the voters have decided? If, therefore, there could be any obUgation resting on persons proposing to purchase the bonds purporting to be issued under such legislative authority, and in accordance with a popular vote, to inquire whether the provisions of the statute had been followed, or whether the conditions precedent to their lawful issue had been complied with, the inquiry must be addressed to the town clerk or executive officer of the municipality, — to the very person whose duty it was to ascertain and decide what were the facts. The more the statute is examined, the more evident does this become. The eleventh section (quoted above) declared, that if it should appear that a majority of the legal voters of the city, town. 330 CASES ON MUNICIPAL OR PUBLIC CORPORATIONS [CHAP. VIII or township, voting, had voted "for subscription," the executive officer and clerk should subscribe and execute bonds. "If it should appear," said the act. Appear when? Why, plainly, before the subscription was made and the bonds were executed; not afterwards. Appear to whom? In regard to this, there can be no doubt. Manifestly not to a court, after the bonds have been put on the market and sold, and when payment is called for, but if it shall appear to the persons whose province it was made to ascertain what had been done preparatory to their own action, and whose duty it was to issue the bonds if the vote appeared to them to justify such action under the law. These persons were the supervisor and town clerk. Their right to issue the bonds was rniade dependent upon the appearance to them of the performance of the conditions precedent. It certainly devolved upon some person or persons to decide this prelim- inary question; and there can be no doubt who was intended by the law to be the arbiter. In Commissioners v. Nichols, 14 Ohio St. 260, it was said that " a statute, in providing that county bonds should not be delivered by the commissioners until a sufficient sum had been provided by stock subscriptions, or otherwise, to complete a certain railroad, and imposing upon them the duty of delivering the bonds when such provi- sion had been made, without indicating any person or tribunal to de- termine that fact, necessarily delegates that power to the commissioners; and, if delivered improvidently, the bonds will not be invalidated." In the present case, the person or persons whose duty it was to deter- mine whether the statutory requisites to a subscription and to an author- ized issue of the bonds had been performed were those whose duty it was also to issue the bonds in the event of such performance. The statute required the supervisor or other executive officer not only to subscribe for the stock, but also, in conjunction with the clerk, to execute bonds to the railroad company in the name of the town for the amount of the subscription. The bonds were required to be signed by the supervisor or other executive officer, and to be attested by the clerk. They were so executed. The supervisor and the clerk signed them; and they were registered in the office of the auditor of the State, in accordance with an act, requiring that, precedent to their registration, the supervisor must certify under oath to the auditor that all the preliminary conditions to their issue required by the law had been compKed with. On each bond the auditor certified the registry. It was only after this that they were issued. And the bonds themselves recite that they " are issued under and by virtue of the act incorporating the railroad company," approved March 24, 1869, " and in accordance with the vote of the electors of said township of Coloma, at a regular election held July 28, 1869, in ac- cordance with said law." After all this, it is not an open question, as between a bona fide holder of the bonds and the township, whether all the prerequisites to their issue had been complied with. Apart from and beyond the reasonable presumption that the officers of the law, the town- ship officers, discharged their duty, the matter has passed into judgment. CHAP. VIIl] TOWN OF COLOMA V. EAVES 331 The persons appointed to decide whether the necessary prerequisites to their issue had been completed have decided, and certified their de- cision. They have declared the contingency to have happened; on the occurrence of which the authority to issue the bonds was complete. Their recitals are such a decision; and beyond those a bona fide purchaser is not bound to look for evidence of the existence of things in pais. He is bound to know the law conferring upon the municipality power to give the bonds on the happening of a contingency; but whether that ■ has happened or not is a question of fact, the decision of which is by ; the law confided to others, — to those most competent to decide it, — and which the purchaser is, in general, in no condition to decide for himself. This we understand to be the settled doctrine of this court. Indeed, some of our decisions have gone farther.* In the leading case of Knox v. Aspinwall, 21 How. 544, the decision was rested upon two grounds. One of them was that the mere issue of the bonds, containing a recital that they were issued under and in pursuance of the legislative act, was a sufficient basis for an assumption by the purchaser that the conditions on which the county (in that case) was authorized to issue them had been complied with; and it was said that the purchaser was not bound to look farther for evidence of such compliance, though the recital did not afiirm it. This position was supported by reference to The Royal British Bank v. Torquand, 6 Ell. & Bl. 327, a case in the Exchequer Chamber, which fully sustains it, and the decision in which was concurred in by all the judges. This position taken in Ktwx v. Aspinwall has been more than once reaffirmed in this court. It was in Moran v. Miami County, 2 Black, 732; in Mercer County v. Hackettil Wall. 83; in Supervisors v. SchenJc, 5 id. 784; and in Mayor v. Muscatine, 1 id. 384. It has never been overruled; and, whatever doubts may have been suggested re- specting its correctness to the full extent to which it has sometimes been announced, there should be no doubt of the entire correctness of the other rule asserted in Knox v. Aspinwall. That, we think, has been so firmly seated in reason and authority, that it cannot be shaken. What it is has been well stated in sect. 419 of Dillon on Mun. Corp. After a review of the decisions of this court, the author remarks, " If, upon a true construc- tion of the legislative enactment conferring the authority (viz., to issue municipal bonds upon certain conditions), the corporation, or certain ofiicers, or a given body or tribunal, are invested with power to decide whether the condition precedent has been complied with, then it may well be that their determination of a matter in pais, which they are au- thorized to decide, will, in favor of the bondholders for value, bind the corporation." This is a very cautious statement of the doctrine. It may be restated in a slightly different form.- Where legislative authority has been given to a municipality, or to its officers, to subscribe for the stock of a railroad company, and to issue municipal bonds in payment, but only on some precedent condition, such as a popular vote favoring the sub- scription, and where it may be gathered from the legislative enactment 332 CASES ON MUNICIPAL OE PUBUC CORPORATIONS [CHAP. VIH that the officers of the municipality were invested with power to decide whether the condition precedent has been comphed with, their recital that it has been, made in the bonds issued by them, and held by a bom fide purchaser, is conclusive of the fact, and binding upon the munici- paUty; for the recital is itself a decision of the fact by the appointed tribunal. In Bissell v. JeffersonmUe, 24 How. 287, it appeared that the common council of the city were authorized by the legislature to sub- ' scribe for stock in a railroad company, and to issue bonds for the sub- scription, on the petition of three-fourths of the legal voters of the city. The council adopted a resolution to subscribe, reciting in the preamble that more than three-fourths of the legal voters had petitioned for it, and authorized the mayor arid city clerk to sign and deliver bonds for the sum subscribed. The bonds recited that they were issued by au- thority of the common council, and that three-fourths of the legal voters had petitioned for the same, as required by the charter. In a suit subsequently brought by an innocent holder for value to recover the amount of unpaid coupons for interest, it was held inadmissible for the defendants to show that three-fourths of the legal voters of the city had not signed the petition for the stock subscription. A similar ruling was made ia Von Hostrop v. Madison City, 1 Wall. 291, and in Mercer County V. Hackett, id- 83. The same principle has recently been asserted in this court after very grave consideration, and it must be considered as settled. In St. Joseph's Township v. Rogers, 16 Wall. 644, it is stated thus: "Power to issue bonds to aid in the construction of a railroad is fre- quently conferred upon a municipality in a special manner, or subject to certain regulations, conditions, or qualifications; but if it appears by their recitals that the bonds were issued in conformity with these regulations, and pursuant to those conditions and qualifications, proof that any or all of these recitals were incorrect will not constitute a de- fense for the corporation in a suit on the bonds or coupons, if it appears that it was the sole province of the municipal officers who executed the bonds to decide whether or not there had been an antecedent compli- ance with the regulation condition, or qualification, which it is alleged was not fulfilled." There is nothing in the case of Marsh v. Fulton Co., 10 Wall. 675, to which we have been referred, at all inconsistent with the rule thus as- serted. In that case, there were no recitals, in the bonds; and there was no decision that the conditions precedent to a subscription, or to the gift of authority to subscribe, had been performed. The question was, therefore, open. What we have said disposes of the present case without the necessity of particular consideration of the matters urged in the argument of the defendant below. It was inadmissible to show what was attempted to be shown; and even if it had been admissible the effort to assimilate the case to Marsh v. Fulton Co. would fail. There the subscription was for CHAP. VIIl] FRIEND V. CITY OP PITTSBUEGH 333 the stock of a different corporation from that for which the people had voted; here it was not. Judgment affirmed. [The concurring opinion of Bkadlet, J., is omitted. JJ. Miller, Davis and Field dissented. See dissenting opinion of Miller, J., in Humboldt Tmonship v. Long, 92 U. S. 642.] 5. Liability for Interest 4 FRIEND V. CITY OF. PITTSBURGH f 131 Pa. St. 305. 1890 On February 11, 1888, John W. Friend brought assumpsit against the city of Pittsburgh upon a municipal bond issued by the defendant. The plea was non-assumpsit. Mr. Chief Jttstice Paxson; This suit was brought in the court be- low against the city of Pittsburgh to recover the amount due on a bond given by said city, and payable by installments. There was no dispute as to the amount of the bond, nor that the respective installments were all due; the contention was over the question of interest on the re- spective installments after their maturity. It appeared upon the trial below that no demand had ever been made by the holder of the bond for payment, and that for a portion of the time, at least, the money had been provided for its payment, and was in the city treasury. Under these circumstances the learned judge instructed the jury as follows: "Therefore, as I say, the simple question is this: Did the city of Pittsburgh provide the means for the payment of these bonds? If she did, before the maturity of the bond, that is, by the maturity of the last payment, then the interest would stop from that date, and you will fix the time when that provision was made. As I have said before, the evidence does not satisfy me that a provision was made before 1880. It is a question of fact, however, for you, and you will fix the time, and allow interest on the installment from the time it came due, up until the time that you find that the city had provided for the payment of the bonds. That is all the in- terest the plaintiff is entitled to, in my judgment." This and other instructions of like tenor were assigned for error here. Thei contention of the plaintiff is that a municipal corporation, like an individual, must seek out its creditor, if it desires to stop interest, and tender him the money due. If this contention is well founded, the effect of it will be to work a revolution in the mode of transacting 334 CASES ON MUNICIPAL OE PUBLIC COBPOHATIONS [CHAP. VIII business with such municipalities. Singularly enough, the precise point does not appear to have been decided in this State; yet there are plenty of dicta scattered through our books, which plainly show the bent of the judicial mind. In the case of Luzurne Company v. Day, 23 Pa. 141, it was said by this court: " When a legal claim is presented for payment, it is the duty of the commissioners to draw their warrant for its payment. If this is refused, or if the order is not paid when de- manded, a suit will lie against the county; but, until demand is made, neither the commissioners nor the county are in default, and without it a suit cannot be maintained." And in Allison v. Jviniata Co., 50 Pa. 351, it was held that the holder of a county warrant or order cannot recover interest, even after demand and non-payment for want of , funds. It is true these cases were put partly upon the ground that such orders are neither bills, notes, checks, nor contracts, nor even a satis- faction of the original indebtedness. Had the action been upon such original indebtedness, as was said in Dyer v. Covington Tp., 19 Pa. 200, the court could decide whether it was a case for the allowance of in- terest or not. In Emlen v. Navigation Co., 47 Pa. 76, it was said by Justice Read in discussing the general rule upon the allowance of in- terest: "There are, however, exceptions to the general rule, as in the case of banks, who are the debtors of their depositors, and of trustees who have not failed in the discharge of their trusts. And we must un- doubtedly add the cases in which the United States and the several States have been prepared to pay their loan holders when their loans fell due, of which it is their practice to notify their creditors before- hand. . . . The result is that these debts are payable at a fixed period, ... at which time and place the loan holder is to present his evidence of debt and receive payment. Whether he does or not, interest stops from that moment." The point decided in that case was that the Lehigh Coal & Navigation Company was not bound to seek its creditor in a foreign country, and make a tender, in order to stop interest. In the State of Illinois it has been repeatedly decided that muni- cipal corporations are not bound to discharge their indebtedness else- where than at their treasuries: City of Pekin v. Reynolds, 31 111. 529; People V. Taxewell Co., 22 111. 147; Johnson v. Stark Co., 24 111. 75; South Park Commissioners v. Dunlevy, 91 111. 49. It must be conceded that this is the rule applicable to the United States and to the several States. And the rule does not depend upon the fact alone that in such instances no suit would lie. It rests upon the broader ground of public policy and public convenience, and the further reason that, as to all municipal organizations or governments, the municipal treasury is the recognized place where all claims against it shall be paid. This rule has been recognized by common consent, by every person, and in every place. The reason of it applies with equal force to a city as to a State. The only difference between them is that one can be sued; CHAP. Vm] FKIEND V. CITY OF PITTSBURGH 335 the other cannot. It would entail intolerable inconvenience if the rule were otherwise. The bonds of some municipal corporations are largely- held in every State, in the Union, and in nearly every nation abroad. It is impossible, in many instances, for such corporations to know their creditors, or where they reside. To hold that they must find them and tender the amount of their debt, before interest could be stopped, would entail endless confusion, and do no practical good. Their obligations are as much payable at their treasury as if so " nomi- nated in the bond," and it is so understood by all who deal with them. We regard the instructions of the court below as favorable to the plaintiff as he was entitled to. There is nothing in the remaining specifications of error which requires discussion.^ ■* Judgment affirmed. • In Chicago v. N. W. Mutual Insurance Co., 218 111. 40, the plaintiff sued to re- cover back money paid to the city under protest as water charges, which the court held to have been illegally ex,acted. Wilkin, J., said; "Complaint is made that the court allowed interest on the various amounts from the date of payment by appellee to the date judgment was rendered. We do not think there was any error, for the reason that appellant wrongfully took from appellee the sum of $1,564.94 and had it in its possession from that time until the present. As a general rule, a municipal corporation is not liable for interest unless so required by special contract or by statute, but in case where a municipal corporation wrongfully exacts money and holds that money without just right or claim, it is liable for in- terest on the same. Vider v. City of Chicago, 164 111. 354 ; City of Danville v. Danville Water Co., 180 id. 235." 336 CASES ON MUNICIPAL OR PUBUC COKPOKATIONS [CHAP. IX CHAPTER IX Liability for Torts 1. For the Torts of Officers and Employees, under the Rule Respondeat Superior DARGAN V. MAYOR, ETC., OF MOBILE* 31 Ala. 469. 1858 Appeal from the Circuit Court of Mobile. Action for damages for the loss of a slave, which, the plaintiff alleges, was negligently killed by police officers of the city while attempting to arrest the slave for violating the city ordinances. The ordinances con,cerned are adverted to in the opinion of the court. A demurrer to the complaint was sus- tained by the Circuit Court. E. S. Dargan, pro se. Daniel Chandler, contra. Walkee, J. The corporation of the city of Mobile had authority to pass ordinances providing for the arrest and punishment of slaves abroad in the city, after nine o'clock at night, without written per- mission; or assembling in numbers of four or more, off the owner's premises, without the permission of the mayor or one of the alder- men. — See the charter of the city, in Pamphlet Acts of 1843^44, p. 180, § 15. This power was purely political in its character, and ex- clusively for the benefit of the pubUc. As to that power, the corpora- tion was a government, imperium in imperio. The employment of the officer for whose negligence in the discharge of his duty the cor- poration is sued, was the necessary, proper, and authorized means for the execution of that power; and the action of the officer, from its nature, was not susceptible of supervision by the corporation. See 37th section of charter. In the legislative adoption of the ordi- nances described in the pleading, and in the appointment of the officer, ' the corporation exercised a lawful authority. It is not alleged that the corporation was guilty of any negligence or misconduct in the selection of the officer. The question here is not as to the liability of a corporation for the omission to discharge its duty; nor for the performance of an unlaw- ful act by it or its authority; nor for the exercise of a power not dele- gated; nor for the negligence of its agents, or officers, in the perform- CHAP. IX] HAYES V. CITY OF OSHKOSH 337 ance of an act for the private benefit of the corporation, or done under the immediate supervision of the corporation. The question of this case is, whether a municipal or public corporation is liable in damages, for an injury resulting from the careless or negligent oflBcial conduct of one of its officers, in whose selection there was no negligence, and whose employment was the lawful and necessary means of executing a governmental power vested in it for the public benefit, and whose acts are not done under the supervision of the corporation. This ques- tion we decide in the negative. Because the corporation is, as to the passage of the ordinances and the appointment of the officer described in the pleadings, a govern- ment, exercising political power, it is irresponsible for the official mis- conduct alleged, upon the same principle which generally protects governments and public officers from liability for the misfeasances and malfeasances of persons necessarily employed under them in the public service. — Sfor?/ on Agency, §§ 319, v 319a, 319b, 320, 321; Dunlap's Foley's Agency, 376. Municipal corporations, quoad hoc stand upon the same foundation with public officers, counties, town- ships, and other quasi corporations, charged with some public duty, or invested with some portion of the authority of the government, where the employment of officers is necessary and lawful. [The court then reviewed a number of early decisions.] . . . The judgment of the court below is affirmed. HAYES V. CITY OF OSHKOSH* 33TFis. 314. 1873 Action against the city for damages. There was evidence that plaintiff's property was set on fire by sparks allowed to escape from fire engines of the city, by the negligence of engineers while using the engines to put out a fire on Other property. The engineers were members of the fire department, employed and paid by the city. The charter provided that, "The common council shall procure fire engines " etc., and have charge and control of the same;" and have power to appoint and pay officers and firemen, specify their duties, and remove them at pleasure. A verdict was directed for defendant. Plaintiff appealed. C. Coolbaugh & Son, for appellant. W. R. Kennedy (Gabe Bouck with him), for the city. Dixon, C. J. The question presented in this case is settled by au- thority as fully and conclusively as any of a judicial nature can ever 338 CASES ON MUNICIPAL OK PUBLIC COEPOEATIONS [CHAP. IX be said to have been. The precise question may not have been here- tofore decided by this court, but a very similar one has, and the governing principle recognized and aflSrmed. Kelley v. Milwaukee, 18 Wis. 83. Neither the charter of the city of Oshkosh, nor the general statutes of this State, contain any peculiar provision imposing lia- bility in cases of this kind; and the decisions elsewhere are numerous and uniform, that no such liability exists on the part of the city. The case made by the plaintiEE is in no material respect distinguishable from those adjudicated in Hafford v. New Bedford, 16 Gray, 297, and Fisher v. Boston, 104 Mass. 87, as well as in several other reported de- cisions cited in the briefs of counsel, and in all of which it was held that the actions could not be maintained. The grounds of exemption from liability, as stated in the authori- ties last named, are, that the corporation is engaged in the performance of a public service, in which it has no particular interest, and from which it derives no special benefit or advantage in its corporate capacity, but which it is bound to see performed in pursuance of a duty imposed by law for the general welfare of the inhabitants, or of the community; that the members of the fire department, although appointed by the city corporation, are not, when acting in the discharge of their duties, servants or agents in the employment of the city, for whose conduct the city can be held liable, but they act rather as public officers, or officers of the city charged with a public service, for whose negligence or misconduct in the discharge of official duty no action will lie against the city, unless expressly given; and hence the maxim respondeat superior has no application. The reasons thus given are satisfactory to our minds, and lead to a conclusion which on the whole seems to us to be just and proper. In- dividual hardship or loss must sometimes be endured in order that still greater hardship or loss to the public at large or the community may be averted. It would seem to be a hard rule which would hold the city responsible in damages in such cases, when the work in which it or rather its public officers are engaged, is one of mere good will, a charity, so to speak, designed for the relief of suffering members of the community, or it may be of the entire people of a district. If the legislature sees fit to enact such liability, so let it be; but, in the ab- sence of such enactment, we must hold the liability does not exist. By the Coukt. — Judgment affirmed.^ > In Wilcoxy. Chicago, 107 111. 334, which was an action to recover damages caused by the negligence of the driver of a hook and ladder wagon in colliding with plain- tiff's carriage, Walkeh, J., said: "The qufestion presented is, whether the relation of master and servant exists between the driver of the ladder wagon and the city and [so that] it is responsible for the negligent acts of the driver whenever engaged in the performance of his duty under the ordinance of the city, or whether the relation is an exception to the general rule. It has long been settled, and perhaps never qifestioned, that the master is liable for injury from the negligent acts of his servant whilst performing acts within the line of his duty. But the whole question here turns upon whether that relation exists. "Appellant contends that inasmuch as the city voluntarily undertook to, and did. CHAP. IX] WILCOX V. CITT OF ROCHESTER 339 WILCOX V. CITY OF ROCHESTER J 190 N. Y. 137. 1907 Appeal from a judgment of the Appellate Division of the Supreme Court affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial. Action for damages for personal injuries. The plaintiff was injured, as he alleges, by reason of the negUgence of an employee of the city in charge of the elevator in the police station. The evidence tended to show that the employee came out of the elevator and left the door open; that the plaintiff, supposing that the elevator had remained in position, stepped through the door and fell to the bottom of the shaft. The ele- vator had been moved upward and away from the door by a police telegraph operator. William A. Sutherland, for appellant. George B. Draper, for respondent. WiLLARD Bartlett, J. . . . The more serious question involved in this appeal is presented by the proposition urged upon us in behalf of the appellant, that in no event can the city of Rochester be held liable for any alleged neglect on the part of an employee in the poHce depart- ment for operating in any manner an elevator in the poUce building. organize a fire department, which is under the entire control of the city, and as it appoints its officers, pays them and the firemen, and discharges them through its officers, and the whole department is controlled, regulated, and its duties prescribed, by city ordinance, nothing more can be required to create the relation of master and servant between it and its employees. The department is as completely under the control of the city as the board of public works, or any other department of the city government. ... "On turning to the reported cases of the courts of other States, we find a uniform line of decisions holding that cities are not liable for the negligent acts of the officers or men employed in their fire departments whilst in the discharge of their duty, thus creating an exception in this class of cases to the general rule of respondeat superior. In his work on Municipal Corporations, Dillon (1st ed. § 774) says: 'So, although a municipal corporation has power to extinguish fires, to establish a fire department, to appoint and remove its officers, and to make regulations in respect to their govern- ment and the management of fires, it is not liable for the negligence of the firemen ap- pointed and paid by it, who, when engaged in the line of their duty, upon an alarm of fire, ran over the plaintiff, in drawing a hose reel belonging to the city, on their way to the fire; nor for injuries to the plaintiff caused by the bursting of the hose of one of the engines of the corporation, through the negligence of a member of the fire de- partment. The exemption from liability is placed upon the ground that the service is performed by the corporation in obedience to an act of the le^slature, — is one in which the corporation has no particular interest, and from wmch, it derives no special benefit in its corporate capacity; that the members of the fire department, although appointed by the city corporation, are not the agents and servants of the city, for whose conduct it is liable, but they act rather as officers of the city, charged with a public service, for whose negligence in the discharge of official duty no action lies against the city without being expressly given, aiid the maxim respondeat superior has, therefore, no application.' He refers to the cases of Hafford v. New Bedford, 16 Gray, 297, and Fisher v. Boston, 104 Mass. 87, which support the text. In New York the same doctrine as applied in Maximilian v. Mayor, 62 N. Y. 160, and Smith v. Rochester, 76 id. 513. In Connecticut, in the case of Jewett v. New Haven, 38 Conn. 36S. In Iowa, in Ogg v. Lansing, 35 la. 495, and Fidd v. Des Moines, 39 id. 675. In Missouri, by Heller v. Mayor, 53 Mo. 159. In California, in Howard v. San Francisco, 51 Cal. 52. The same doctrine has been announced by the Supreme Court of Ohio." The court held that the city was not liable. 340 CASES ON MUNICIPAL OK PUBLIC CORPOEATIONS [CHAP. IX The argument is that the defendant, although a municipal corporation, was engaged solely in the discharge of public governmental functions as distinguished from municipal functions, in the maintenance, manage- ment, and repair of the police station, and therefore, under the doctrine of Maximilian v. Mayor, etc., of N. Y. (62 N. Y. 160) and similar cases, is not responsible for the acts or omissions of those engaged in applying the building to such public purposes of government. This was evidently the view entertained by the learned justice who dissented in the Appel- late Division. He wrote no opinion, but simply placed his dissent upon the authority of Snider v. St. Paul (51 Minn. 466), where the Supreme Court of Minnesota held, in reference to an elevator accident in the St. Paul city hall, that the duty of providing and maintaining a city hall was a public and governmental one and, therefore, the city was not responsible for the neghgence of its officers, agents, or servants in the management of such building. The broad general doctrine of the Maximilian case, which is certainly not now open to question in the courts of this State, is that " two kinds of duties are imposed on municipal corporations, the one governmental and a branch of the -general administration of the State, the other quasi private or corporate;" and " that in the exercise of the latter duties the municipahty is liable for the acts of its officers and agents, while in the former it is not." (CuUen, J., in Lefrois v. County of Munroe, 162 N. Y. 563, 567.) The question which confronts us, on the branch of this appeal now under consideration, is whether the duty exercised by the city of Rochester, under the general statutes relating to cities of the second class, of maintaining and caring for a police station, is a governmental duty appertaining to the general administration of the State or a duty imposed and underWken for the benefit of the munici- pality as a corporate body. If it falls within the first of these categories, the present action cannot be maintained. To my mind, it seems perfectly clear that if there is any logical validity in the distinction laid down in the Maximilian case, and so firmly established by the subsequent decisions of this court, it must be applied in favor of the defendant and appellant here. What powers and duties are there which can be conferred and imposed upon a munici- pality that more clearly constitute a function of general government than the power and duty to maintain a poUce force and provide suitable buildings for its occupation and use? The agency which caused the accident out of which the Maximilian case arose was the driving of an ambulance wagon through the streets of New York by an employee of the commissioners of public charities and corrections. The statu- tory duties of the department of which the commissioners were the head were to care for paupers, destitute children, lunatics, and certain classes of offenders. This court held that these functions were "acts to be done by them in their capacity as public officers in the discharge of duties imposed upon them by the legislature for the public benefit;" and that CHAP. IX] WILCOX V. CITT OF ROCHESTER 341 they were not acts done for the city of New York " in what may be called its private character, in the management of property or rights volun- tarily held by it for its own immediate profit or advantage as a corpora- tion, though inuring ultimately to the benefit of the public." The general governmental character of the functions of the police in our cities strikes me as much more apparent than was such character on the part of the commissioners of public charities and corrections in Maximilian v. Mayor, etc., of N. Y. (supra). For one thing, their powers were strictly local, while in some respects the powers of municipal police ofiicers extend throughout the entire State. . . . The suggestion is made, however, that inasmuch as the alleged negligence in the pres- ent action was not the omission of a pohce officer or member of the police force assuming to act as such, but was done by an employee of the city engaged in the maintenance of a police station, the rule which denies the application of the doctrine of respondeat superior to the torts or negligent acts of police officers does not apply. This proposition simply brings us back to the question whether the safe and proper mainte- nance of a police station building is not an appropriate, not to say neces- sary, element in the maintenance of a police force; and if it is, whether it is not the exercise of a public governmental function. I have already indicated that I think these questions must be answered in the affirma- tive. The evidence leaves no doubt as to the character of this building. The city engineer, who had been in office several years, and was its custodian, testified: "Since I have had charge of it, it has been occupied as headquarters for the police department and by the police court — nothing else. There are four stories in the building. The police tele- phone system is on the top storj^ — police patrol and fire alarm. There is a portion of the fire alarm tlii^re and the police patrol calls. The third is the women's cells and matron's room. The second floor is the men's cells and the court room. The first floor is the assembly hall and the office of the captain and some other officers. The assembly hall is where the policemen assemble and are given their instructions. That is the use to which the building has been put during all the time I have been city engineer, and to no other purpose." It thus appears that the structure was used in part as a jail for pris- oners, as well as in part for the accommodation of the police force of the city of Rochester. The weight of judicial authority in this country is in favor of the doctrine that the maintenance of a jail is a govern- mental function (Lahner v. Town of Williams, 112 la. 428; Gray v. Mayor, etc., of Griffin, 111 Ga. 361; Le Clef v. City of Concordia, 41 Kans. 323; City of New Kiowa v. Craven, 46 Kans. 114; Gullikson v. McDonald, 62 Minn. 278; Brovm v. Town of GuyandoUe, 34 W. Va. 299) ; although a contrary view has been entertained in North Carolina (Shields v. Town of Durham, 118 N. C. 450) and by a Federal judge in the fourth circuit (Edwards v. Town of Pocahontas, 47 Fed. Rep. 268). I think that the. prevailing view is based on sound reason, and that it 342 CASES ON MUNICIPAL OK P0BUC COEPOKATIONS [CHAP. IX is equally applicable to a police station, such as this was in Rochester. It was actually applied to a police station in the case of Kelley v. Cook (21 R. I. 29), where the defendant, city treasurer, was sued as the rep- resentative of the city of Woonsocket to recover damages for the negli- gence of the city in caring for a person who had been unlawfully ar- rested by a police officer and incarcerated in a police station, and by reason of the city's neglect to provide for him therein, was rendered so ill that he died. The court said: "In the temporary care of persons under arrest the city by its police department is aiding in the enforce- ment of the laws and thus discharging a public duty for which it re- ceives no pecuniary benefit, and for the manner in which it discharges this duty it is legally responsible to no one. The police regulations of a city are not made and enforced in the interest of the city in its corporate capacity but in the interest of the people." I cannot see that any distinction can logically be drawn which will take this case out of the rule which defeated the plaintiff in Maximilian V. Mayor (supra), growing out of the fact that the person or persons whose alleged negligence caused the accident here were not at. the time actually endeavoring to exercise any authority over the plaintifif, or with reference to the plaintiff, as officers or members of the police force. If their acts were in aid of the maintenance of the police station, and such maintenance by the municipality was as much the exercise of a public governmental function as was the organization or the regulation or the discipline of the police force itself, then the non-liability of the city depends on the character of the duties thus imposed and assumed, and not at all on the relation to the municipality of those affected by the manner in which such duties may be discharged. . . . Judgment reversed, etc. Haight, J., dissented. [His opinion is here omitted. Three judges concurred with Willaed Baetlett, J., in the above opinion, and two concurred on another ground.] BAILEY et als. v. MAYOR, ETC., OF NEW YORK * 3 mn {N. Y. Supreme Ct.) 531. 1842 Case, to recover damages for the destruction of plaintiff's mill property on the Croton River by the bursting of a dam on that river. The plaintiffs allege that the bursting of the dam was the result of the negligence of agents and servants of the defendant in charge of construct- ing and maintaining it. At trial it appeared that the dam had been built under the direction CHAP. IX] BAILEY et ds. V. MAYOR, ETC., OP NEW YORK 343 of water commissioners, appointed by the governor for the purpose, in pursuance of certain special statutes. These statutes provided that the commissioners should prepare and submit to the city council a plan for supplying the city with water; and that upon the favorable vote of the city council, and of the electors of the city, and the furnishing of funds therefor by the city council, the commissioners should construct the works. Under the ordinance which instructed the commissioners to proceed with the work, seciurities of the city were to be issued to provide funds; and revenues, which were to be derived from furnishing "water to the inhabitants, were to be devoted first to redeeming the securities. The compensation of the commissioners was to be paid by the city. Plaintiffs excepted to the rejection of evidence that the dam was negligently and unskillfuUy constructed. A. S. Johnson & E. P. Hurlbut, for the plaintiffs. P. A. Cowdrey & D. B. Tallmadge, for the defendants. / Nelson, C. J. The principal ground taken at the circuit against this action, and the one upon which it is understood the cause there tiu-ned was, that the defendants were not chargeable for negligence or Tinskillfulness in the construction of the dam in question; inasmuch as the water commissioners were not appointed by them, nor subject to their direction or control. In other words, the commissioners not being their agents in the construction of the dam, the rule respondeat su- perior could not properly be applied. Another ground is now taken, which I will first notice, viz., that admitting the water commissioners to be the appointed agents of the defendants, still the latter are not liable, inasmuch as they were acting solely for the State in prosecuting the work in question, and therefore are not responsible for the conduct of those necessarily employed by them for that purpose. We admit, if the defendants are to be regarded as occupying this relation, and are not chargeable with any want of diligence in the selection of agents, the conclusion contended for would seem to follow. They would then be entitled to all the immunities of public oflScers charged with a duty which, from its nature, could not be executed without availing themselves of the services of others; and the doctrine of respondeat superior does not apply to such cases. If a public oflScer authorize the doing of an act not within the scope of his authority, or if he be guilty of negligence in the discharge of duties to be performed by himself, he will be held responsible; but not for the misconduct or malfeasance of such persons as he is obliged to employ. Hall V. Smith, 2 Bing. 156; J. B. Moore, 226 S. C; Humphreys v. Mears, 1 Man. & Ryl. 187; Bolton v. Crowther, 4 Dowl. & Ryl. 195; Harris v. Baker, 4 Maule & Selw. 27. But this view cannot be maintained upon the facts before us. The powers conferred by the several acts of the legislature authorizing the execution of this great work are not, strictly and legally speaking, con- 344 CASES ON MUNICIPAL OE PUBLIC CORPORATIONS [CHAP. IX f erred for the benefit of the public. The grant is a special, private fran- chise, made as well for the private emolument and advantage of the city, as for the pubUc good. The State, in its sovereign character, has no interest in it. It owns no part of the work. The whole investment under the law and the revenue and profits to be derived therefrom, are a part of the private property of the city; as much so as the lands and house? belonging to it, situate within its corporate limits. The argument of the defendants' counsel confounds the powers in question with those belonging to the defendants in their character as a municipal or pubHc body — such as are granted exclusively for public purposes to counties, cities, towns, and villages, where the corporations have, if I may so speak, no private estate^or interest in the grant. As the powers in question have been conferred upon one of these public corporations, thus blending in a measure those conferred for private advantage and emolument with those already possessed for public pur- poses, there is some difliculty, I admit, in separating them in the mind, and properly distinguishing the one class from the other, so as to dis- tribute the responsibility attaching to the exercise of each. But the distinction is quite clear and well settled, and the process of separation practicable. To this end, regard should be had, not so much to the nature and character of the various powers conferred, as to the object and purpose of the legislature in conferring them. If granted for public purposes exclusively, they belong to the, corporate body in its public, political, or municipal character. But if tM'grant was for purposes of private advantage and emolument, though the public may derive a common benefit therefrom, the corporation, quoad' hoc, is to be regarded as a private company. It stands on the same footing as would any individual or body of persons upon whom the like special franchises had been conferred. Dartmouth College v. Woodward, 4 Wheat. 668, 672; Philips V. Bury, 1 Ld. Raym. 8, 2 T. R. 352, s. c; Allen v. McKeen, 1 Sumner, 297; The People v. Morris, 13 Wend. 331, 338; 2 Kenfs Com., 275, 4th ed.; U. S. Bank v. Planter's Bank, 9 Wheat. 907; Clark' v. Corp. of Washington, 12 id. 40; Moodalay v. The East India Co., 1 Brown's Ch. R. 469. Suppose the legislature, instead of the franchise in question, had conferred upon the defendants banking powers, or a charter for a railroad leading into the city, in the usual manner in which such powers are conferred upon private companies; could it be doubted that they would hold them in the same character, and be subject to the same duties and liabilities? I cannot doubt but they would. These powers in the eye of the law would be entirely distinct and separate from those appertaining to the defendants as a municipal body. So far as related to the charter thus conferred, they would be regarded as a private company and be subject to the responsibilities attaching to that class of institutions. The distinction is well stated by the master of the rolls in Moodalay v. The East India Company (1 Brown's Ch. R. 469), in answer to an objection made by counsel. "There the plaintiff CHAP. IX] BAILET et ols. V. MAYOE, ETC., OP NEW YORK 345 had taken a lease from the company, granting him permission to supply the inhabitants of Madras with tobacco for ten years. Before the ex- piration of that period, the company dispossessed him, and granted the privilege to another. The plaintiff, preparatory to bringing an action against the company, filed a bill of discovery. One of the ob- jections taken by the defendants was, that the removal of the plaintiff was incident to their character as a sovereign power, the exercise of which could not be questioned in a bill or suit at law. The master of the roUs admitted that no suit would lie against a sovereign power for anything done in that capacity; but he denied that the defendants came within the rule. "They have rights," he observed, "as a sovereign power, they have also duties as individuals; if they enter into bonds in India, the sums seciured may be recovered here. So in this case, as a private company they have entered into a private contract, to which they must be liable." It is upon the like distinction that municipal corporations, in their private character as owners and occupiers of lands and houses, are regarded in the same light as individual owners and occupiers, and dealt with accordingly. As such, they are bound to repair bridges, highways, and churches; are liable to poor rates; and, in a word, to the discharge of any other duty or obligation to which an individual owner would be subject. 2 Inst. 703; Thursfield v. Jones, Sir T. Jones, 187; Rex v. Gardner, Cowp. 79; Mayor of Lynn v. Turner, id. 87; Henly v. Mayor of Lyme, 5 Bing. R. 91, 1 Bing. N. C. 222, s. c. in the House of Lords. Regarding the dfefemdants then in the light of any other private company upon whom the like special franchises had been conferred, the next question is, whether the water commissioners charged with the immediate superintendence and execution of the work stand in the relation of agents deputed by the defendants to perform this duty. If they do, it is not denied, in this aspect of the case, that the defendants are answerable to the plaintiffs for any damages sustained through the negligence or unskillfulness of the commissioners. The question de- pends mainly upon a construction of the Act of 1834. . . . We have already given our views of the character of this work, and of the capacity in which the defendants hold the powers under which it has been executed. If we are not mistaken in that conclusion, and they are to be regarded as a private company, like any other body of men upon whom special franchises have been conferred for their own private advantage — such as banking and railroad corporations — then the appointment of the agents by the State did not make them less the agents of the defendants. The appointment in this way is but one of the conditions upon which the charter was granted; and stands on the footing of any other condition to be found in the grant, subject to which it has been accepted. By accepting the charter, the defendants thereby adopted the commissioners as their own agents to carry on the work. The acceptance was entirely voluntary; for the State could not enforce 346 CASES ON MUNICIPAL OE PUBLIC COKPOBATIONS [CHAP. IX the grant upon the defendants against their will. This would be so upon general principles (A. & A. on Corp., 46, 50, and cases there cited); but here, the charter itself left it optional with the common council of the city to accept or not. (§ 7.) The undertaking of the work was made to depend upon the approval of the plan of the commissioners, which necessarily involved the right to adopt or reject the work itself altogether, if they disliked the system prescribed by the legislature. The approval having taken place, this, together with the subsequent measures of the common council instructing the commissioners to pro- ceed in the execution of the' work, constituted them the agents of the defendants, as effectually so as if the latter had originally appointed them. The act of adoption in the one case was as free and voluntary as the appointment in the other. . . . New trial granted. DUGGAN V. INHABITANTS OF PEABODY * DUGGAN V. SAME 187 Mass. 349. 1905 Two actions of tort, one by Mary W. Duggan for personal injuries from being struck on the head by a piece of stone from a blast in the stone quarry of the defendant maintained for the preparation of stone to be used in repairs of highways, and the other by James Duggan, hus- band of Mary, for the loss of her services and companionship by reason of the injuries. Defendant alleges exceptions to the refusal of the court to order verdicts for defendants. J. J. Cahill & N. D. Crowley, for the defendant. W. H. Niles, for the plaintiffs. Knowlton, C. J. The plaintiff in the first case, while on her own premises not far from the defendant's quarry, was struck on the head and injured by a stone thrown from a blast in the quarry, and her hus- band, James Duggan, suffered damages on account of her injuries. It was conceded by the defendant at the trial, that she was in the exercise of due care, and that the blast was negligently exploded. One Hooper, who was the superintendent of streets duly appointed by the selectmen, was in charge of the work, and the only question is whether the defendant is liable for his negligence. For his negligence as a public officer, acting under the authority of law in the performance of the duties of his office in regard to matters which involve no element of profit or income to the town, but were imposed solely in the interest of the general public, the town is not liable. Hafford v. New Bedford, 16 CHAP. IX] DUGGAN V. INHABITANTS OF PEABODV 347 Gray, 297; Walcott v. Swampscott, 1 Allen, 101; Buttrick v. Lowell, 1 Allen, 172. If the enterprise in which he was engaged was conducted primarily as a work of the town, imposed upon it for the benefit of the public, but in part as a source of income, a commercial element was , introduced which made him to that extent at least an agent of the town, and which deprived the town of the exemption from liability for negligence which pertains to the performance of duties that are strictly public. The purchase of real estate, to be paid ior by a town and used as a stone quarry, is not ordinarily within the authority of a superintendent of streets acting merely as a public officer, and as such an officer he probably would have no right to take in charge such a quarry belonging to a town to carry on the business of quarrying and crushing stone there, even for use upon the public streets, unless the town authorized or permitted him to do so. In the present case the town has for years been making sales of broken stone from this quarry. In the year ending January 15, 1898, there were three sales amounting to $11.50. In the next year there were seven sales amounting to $189.37, in the next year six sales amounting to $460.88, in the next year twelve sales amount- ing to $1,193.65, and in the year of the accident there were twenty-four sales amounting to $352.40. The money received for these sales went into the hands of the town treasurer, some of it by payments to him directly and some through the superintendent of streets. In his anriual reports to the town, the treasvirer accounted for all these moneys, and the amounts so received also appeared in the annual town report pub- lished by the selectmen. We think these facts bring the case within the principles stated in Collins v. Greenfield, 172 Mass. 78; Neffv. Wellesley, 148 Mass. 487, 493; and Warden v. New Bedford, 131 Mass. 23. See also Waldron v. Haverhill, 143 Mass. 582; Sullivan v. Holyohe, 135 Mass. 273, 277; Oliver v. Worcester, 102 Mass. 489, 500; Norton v. New Bed- ford, 166 Mass. 48, 52; Hawkes v. Charlemont, 107 Mass. 414; Aldrich V. Tripp, 11 R. I. 141. In Neff V. Wellesley, ubi supra, the principle is stated as follows: " When property is used or business is conducted by a town principally for public purposes, under the authority of the law, but incidentally and in part for profit, the town is liable for negUgence in the management of it." ^ In Collins v. Greenfield, ubi supra, the plaintiff's intestate was injured while at work about a stone crusher in preparing stone for use in macadamizing streets. Some income was received from the business, 1 Neff V. Wellesley was an action against a town to recover damages for personal injuries caused by the negligence of a person employed by the town in connection with its almshouse or poor-farm, and who, while cMving through a street in a wagon used in connection with the farm, negligently drove the horse upon the plaintiff. The evidence showed that, although the poor-farm was maintained principally for the support of the town's paupers, paupers of another town and of the State were boarded there at a price per week; employees of the town working in its highway department were boarded there; and surplus produce from the farm was sold, or exchanged for other supplies. It was held that the town was liable. 348 CASES ON MUNICIPAL OE PUBLIC COBPOEATIONS [CHAP. IX derived in part from payments of a street railway company and in part from small sales of crushed stone. The work was in charge of the superintendent of streets. It was held that the town was liable for his negligence. The same principle is applied in Warden v. New Bedford, ubi supra, and in other cases. In Murphy v. Needham, 176 Mass. 422, the plaintiff's intestate was injured while engaged in getting out gravel in a gravel pit, and the facts in regard to the crushed stone were held to be too remote to affect the plaintiff's case. It was contended in Neff v. Wellesley, and in Warden v. New Bedford, and in other cases, that there was no liability because the use of the property for profit was ultra vires; but the defense was not sustained, as it was held that an incidental use resulting in profit, from property acquired and held primarily for a public purpose, was legitimate. See also, as overruling this defense on another ground, Nims v. Mount Her- man Bays' School, 160 Mass. 177. It is objected that there was no vote of the town authorizing the sale of crushed stone, or particularly refer- ring to it. But the business was carried on for years in an open way, and was annually referred to in the reports of the selectmen and town treas- urer, made to the inhabitants in town meeting assembled, and pre- sumably accepted by votes of the town. The reports were also published and distributed among the inhabitants. This is suSicient evidence to warrant a finding that the business was conducted with the approval of the town, and that the acts of its agents appearing in the reports were ratified. Arlington v. Peirce, 122 Mass. 270. The case is very different from Wormstead v. Lynn, 184 Mass. 425, in which the plaintiff, in an action of contract against the city, relied on a previous habit of the super- intendent of streets to make certain contracts without authority, which, so far as appeared, never had been brought to the knowledge of the city council or ratified in any way by municipal action of the defendant. In this case we have no occasion to consider whether there is a special liability founded on the use of an explosive which is intrinsically dan- gerous to persons and property in the vicinity who are not connected with the work. We are of opinion that the cases were properly submitted to the jury. Judgmerd for the plaintiffs. 2. For Failure to Provide for the Safety of Employees COLWELL V. CITY OF WATERBURY * 74 Conn. 568. 1902 Action by an employee of the city to recover damages for the loss of an eye, claimed to have been caused by the negligence of the defendant CHAP. IX] COLWELL V. CITY OF WATEEBUEY 349 in using a defective stone crusher and putting him to work upon the same. Upon the trial it appeared that the stone crusher was owned by the defendant, and was being used by the defendant, in the town of Chesh- ire, ten miles from Waterbury, in crushing stone to be transported by rail to Waterbury and by teams to a street which was being macadam- ized, and there used in macadamizing said street. The plaintiff, it ap- peared, was employed by the defendant's street inspector, who had the general superintendence of this work and the care and maintenance of streets. Plaintiff was put to work on the stone crusher by the fore- man, who, subject to the superintendent, had charge of the work of stone-crushing at Cheshire. There seems to have been no evidence that the defendant ever sold the stone crushed by said machine, or used it for any other purpose than in macadamizing its streets. The defendant requested the court to charge the jury that the de- fendant was not liable because performing a public, governmental duty, imposed upon it by the State. The court charged that the maintenance of streets was a governmental duty, and that if the work was being done in the performance of that duty there was no liability; but that "the crushing of stone intended to be used and subsequently used in macad- amizing a street ten miles away was not work done in the care and maintenance of the street. Such work is confined to the work done on the street itself, or in bringing to the street the necessary materials and instrumentalities used in the work; it has no relation to the manufacture of material, or instrumentalities, or the use of machinery for that manu- facture." There was a verdict for the plaintiff, and the defendant appealed. By statute the city, by its common council, is given the^ole and ex- clusive authority and control over streets; with power to lay out, repair and improve them, and to assess a reasonable part of the expense of paving, macadamizing, or improving a street, upon the persons whose property is specially benefited thereby. Lucien F. Burpee and John P. Kellogg, for the appellant (defendant). John O'Neill and George H. Cowell, for the appellee (plaintiff). Hall, J. The injury to the plaintiff was caused by operating a de- fective stone crusher upon which he was at work. The alleged ground of liability is the negligence of the city, or that of its street inspector, in placing the plaintiff, as an employee of the city, at work upon such de- fective machine. If the city or its street inspector, in operating the stone crusher, was engaged in the performance of a public governmental duty, the defend- ant, in the absence of any statute making it liable, is not responsible in damages to the plaintiff for the injury caused by such act of negligence, either upon the theory that the city failed to perform its duty toward an employee, viz., to provide him a reasonably safe place in which to work 350 CASES ON MUNICIPAL OB PUBLIC COKPOEATIONS [CHAP. IX or reasonably safe instrumentalities with which to work, or upon the theory that the plaintiff, if not a servant of the city, was injured by the carelessness of the defendant's agent while the latter was performing the defendant's work. If the city was negligent in furnishing its workmen with defective machinery with which to perform a public service, it is exempt from lia- bility for such negligence, for the reason that in all that either the city or the plaintiff did in the performance of such public duty they acted as governmental agencies, and not in the exercise of any privilege or power for the immediate benefit of the municipality; and because, while so acting, although the city paid the plaintiff for his services, the relation between them was not the ordinary one of master and servant which exists between a city and its employees in the performance of strictly municipal duties. Jones v. New Haven, 34 Conn. 1, 13; Jewett V. New Haven, 38 id. 368; Daly v. New Haven, 69 id. 644, 649; Bartram V. Sharon, 71 id. 686, 692. On the other hand, if the street inspector, as an officer or agent of the city, and as the one having, by authority of the board of street com- missioners and in discharge of the duties imposed upon them by the city charter, the entire care and maintenance of the streets, was guilty of negligence in the performance of a public duty, in using a defective stone crusher or in failing to provide a proper covering for it whUe it was in operation, the city of Waterbury is not liable for the consequences of his negligence, since the street inspector was so far a public agent that as to such acts of negligence the rule respondeat superior does not apply to the defendant. Judge v. Meriden, 38 Conn. 90, 97; Daly v. New Haven, 69 id. 644, 650. We have had occasion to state heretofore that the rule which thus exempts municipalities from liability, when they or their servants are acting in the discharge of a public duty, does not relieve them from re- sponsibility for the negligent acts of their workmen which are not inci- dent to and do not flow from the performance of the public work in which they are engaged, and in doing which acts such workmen are there- fore not properly acting as agents of the law; nor from liability for the consequences of the particular acts which the municipaUty has directed to be performed, and which, from their character or the manner in which they are so ordered to be executed, will naturally work a direct injury to the property of others, or create a nuisance, or occasion a wanton injury to the property or rights of other persons. Judd v. Hartford, 72 Conn. 350; Norwalk Gas Light Co. v. Norwalk, 63 id. 495; Mootry v. Danhury, 45 id. 550, 556; Weed v. Greenwich, id. 170, 183; Danhury & N. R. Co. V. Norwalk, 37 id. 109, 119. The trial court, while recognizing the rule of municipal immunity above stated, in effect instructed the jury that when the plaintiff was injured the defendant was not engaged in the performance of a govern- mental duty. That part of its charge was incorrect. CHAP. IXj COLWELL V. CITY OF WATEEBURT 351 In doing the work of constructing and repairing its highways the city was clearly performing a governmental act. Janes v. New Haven, 34 Conn. 1. The acceptance by the city of a charter authorizing it to dis- charge such governmental duty, neither created a contract between it and the State that such duty should be performed, nor rendered the dis- charge of such duty the exercise of a special privilege for the non-per- formance or negUgent performance of which the city would become liable. Hewison v. New Haven, 37 Conn. 475, 482; Hill v. Boston, 122 Mass. 344. Macadamizing its streets was one of the ways by which the city might perform its duty of maintaining and repairing its highways {New Haven v. Whitney, 36 Conn. 373, 376), and it was for the city to decide whether that was the best way of discharging that duty. Hoyt V. Danbury, 69 Conn. 341, 352; Healey v. New Haven, 47 id. 305, 314. It was within the taxing power of the legislature to provide that a rea- sonable part of the expense of such repairs should be borne by those whose property was especially benefited thereby {New London v. Miller, 60 Conn. 112, 116), and the fact that a part of such expense might be so paid did not make the duty of repairing the streets any the less a gov- ernmental one than if the entire expense were to be paid by a general city tax. The work of breaking, by means of a stone crusher, the stone to be used in macadamizing the street, was a part of the work of macadamizing such street. It was necessary that the stone used in macadamizing should be broken into small pieces. If laborers had been employed to break the stones with hammers, upon the street to be macadamized, it would hardly be said they were not performing a part of the work of macadamizing the street. But to become part of the work of macad- amizing, it is not necessary that the labor should be performed upon the street to be repaired. Part of the work of macadamizing is necessarily performed elsewhere, as the carrying of the materials to the street. . . . Whether or not the stone-crusher, either before or after the accident, had been used by the city for other purposes than in macadamizing its streets, was not decisive of the case. It was a question for the jury, whether at the time of the accident either the city, or its street inspector, or its other agents in charge of the work, were in fact engaged in operat- ing the stone crusher for the purpose of macadamizing a city street, as claimed by the defendant. It seems to have been shown at the trial that when the plaintiff was injured the stone crusher was being operated to crush stone to be used, and which in fact was used, in macadamizing a certain street. For an injm'y sustained by the plaintiff under such cir- cumstances the city has the same immunity from Uability as from one suffered by its employee in operating a defective street-roller or fire engine. Municipal corporations are not liable unless made so by statute for injuries occasioned by negligence in using or failing to keep in repair the fire engines owned by them. Dillon, Mun. Corp. (4th ed.), p. 976, note 1; Jewett v. New Haven, 38 Conn. 368, 381. 352 CASES ON MUNICIPAL OE PUBLIC CORPORATIONS [CHAP. IX A very similar case in many of its aspects to the one at bar is that of Barney v. Lowell, 98 Mass. 570, cited in Jewett v. New Haven, in which it was held that the city was not liable for an injury caused by the negli- gence of a teamster, engaged in carting stone from a stone crusher to repair a highway, and employed in that work by the superintendent of streets who had charge of the repairing of the streets and the crushing of the stone for that purpose. In the case of Hughes v. County of Monroe, 147 N. Y. 49, it was held that the county was not liable for an injury sustained by one of its em- ployees in operating a steam mangle in a laundry, which the servants of the defendant had failed to keep in proper repair; and in Wild v. Pater- son, 47 N. J. L. 406, that the defendant,was not liable for an injury to a member of the fire department caused by a defective brake on the steam fire engine which he was assisting in taking to a fire. In the latter case it was held that, since such employees of the corporation were mere in- struments in the execution of its public duties, the fact that the plaintiff was a paid employee of the city would not create between them the ordinary relation of master and servant so as to render the city liable for its failure to keep the engine in good repair. For the reasons given we think the trial court erred in not charging the jury substantially as requested by the defendant, and in charging that the crushing of stone, intended to be used and subsequently used in macadamizing a street, was not work done in the care and maintenance of the street. The allegations in the complauit, of a promise by the defendant's foreman to furnish new teeth and a proper covering for the stone crusher, were, as stated in plaintiff's brief, not intended as a statement of liability upon a contract, but of facts affecting the question of contribu- tory negligence. As bearing upon that question the coiu-t properly charged the jiu-y, that information of such promises, if given to the in- spector of streets, was sufficient information to the city. There is error and a new trial is granted. In this opinion the other judges concurred, except Hamerslet, J., who dissented. OSTRANDER v. CITY OF LANSING % 111 Mich. 693. 1897 Case against the city for personal injuries received while employed by the city as a workman. From a judgment for plaintiff, defendant brings error. The iHs-intiff was injured by the caving in of earth on the side of a trench in which he was at work, and which was being dug for a sewer. CHAP. IX] EASTMAN V. TOWN OF MEREDITH 353 There was evidence that the injury might have been avoided by the defendant, by properly shoring up the sides of the ditch. In defendant's brief the point is made that the construction of the sewer was the exer- cise of a governmental function, and that the city is therefore not liable. Clark C. Wood, City Attorney (Black & Dodge of counsel), for ap- pellant. Cahill & Ostrander, for appellee. Montgomery, J. . . . We think the claim that the city was in the exercise of a governmental function, instead of a private municipal enterprise, is ruled by the case of City of Detroit v. Corey, 9 Mich. 165 (80 Am. Dec. 78). The charter of the city 'of Lansing contains the following provision: "The council may charge and collect annually, from persons whose premises are connected by private drains with the public sewers, such reasonable sum, not exceeding two dollars per year, as they may deera just, in proportion to the amount of drainage through such private drain." It was said of a similar power in City of Detroit V. Corey: " It is to be observed that the power under which they acted, and which made that lawful which would otherwise have been unlawful, was not a power given to the city for governmental purposes, or a public municipal duty imposed on the city, as to keep its streets in repair, or the like, but a special legislative grant to the city for private purposes. The sewers of the city, like its works for supplying the city with water, are the private property of the city. They belong to the city. The cor- poration and its corporators', the citizens, are alone interested in them. The outside public, or people of the State at large, have no interest in them, as they have in the streets of the city, which are public highways." It may be added that, as to the sewers constructed under the charter by the city of Lansing, they may be also a source of revenue. See, also, Barron v. City of Detroit, 94 Mich. 601 (34 Am. St. Rep. 366); Baker v. City of Grand Rapids, ante, 447. . . . [Judgment was reversed on another ground.] 3. For Failure to Provide for the Safety of Persons Rightfully upon the Corporate Property EASTMAN V. TOWN OF MEREDITH 36 N. H. 284. 1858 Perlet, C. J. The following may be taken for a general state- ment of the case set up by the plaintiff. The town of Meredith built a town-house, to be used lot holding town-meetings and other public 354 CASES ON MUNICIPAL OR PUBUC COEPOKATIONS [CHAP. IX purposes. The house, by the default and negligence of those who built it in behalf of the town, was so improperly constructed that the flooring gave way at the annual town-meeting in 1855, and the plain- tiff, an inhabitant and legal voter, in attendance on the meeting, re- ceived a serious bodily injury. The accident and mjury were caused by the defects and insufficiency of the building. [A lengthy discus- sion of early doctrines and decisions is omitted.] Then, again, towns and other municipal corporations, including counties in this State, have power, for certain purposes, to hold and manage property, real and personal; and for private injuries, caused by the improper management of their property, as such, they have been held to the general Uability of private corporations and natural persons that own and manage the same land of property. Bailey v. The Mayor, etc., of New York, 3 Hill, 541. So far as they are the owners and managers of property, there would seem to be no sound reason for exempting them from the general maxim which requires an individual so to use his own that he shall not injure that which belongs to another. So if a town or city maintain an erection or struc- ture which is a private nuisance, and causes a special damage, or, in the performance of an authorized act, invade any right of property, the corporation has been held liable to a civil action. Thayer v. Boston, 19 Pick. 511; Akron v. McComb, 18 Ohio, 229; Rhodes v. Cleveland, 10 Ohio, 159. If the defendants in the present case had laid and main- tained the foundations of their town-house across a stream, and caused the water to flow back on the plaintiff's land, according to these au- thorities they would have been liable to an action for the damage. The case of the plaintiff cannot be classed with any of those to which we have adverted. The question here is, whether a town is liable to the action of a citizen of the town who has suffered a special damage from neglect of the town to provide a safe place for holding the annual town-meeting. The public duty relied on is not enjoined by express provision of any statute. If such a duty exists, it is im- plied from the general character and design of such qtiasi corporations, and must depend on the general law applicable to all towns. Here is no contract, express or implied, between the State and the individual town, and no grant of any special power or privilege which can be supposed to have been voluntarily accepted by the town upon con- dition of performing the public duty. Towns are involuntary terri- torial and poKtical divisions of the State, like counties, established for purposes of government and municipal regulation. It is chiefly through this organization of towns that the people exercise the sov- ereign power of government; and the plaintiff's claim is for damages which he has suffered from neglect of the town to provide him a safe place for the exercise of his public and poHtical rights as a citizen of the town and State. ... We regard the present case as one of new impression. We have CHAP. IX] OLIVER V. CITY OF WORCESTER 356 heard of no earlier attempt in this State to maintain an action against a town, for a private injury suffered by a citizen of the town from neglect of the town to provide him with safe and suitable means of exercising his pubUc rights, and we are not informed of any case in which such an action has been maintained in any other State. We believe it to have been the general understanding of the profession in this State, that an action wiU not lie against a town for neglect to perform a mere public duty, unless the action is given by statute. The authorities cited in support of the plaintiff's action are very dis- tinguishable, as we think, from the present case, and there is a great weight of authority on the other side. Our conclusion is, that this action, on the case stated to us, cannot be maintained. OLIVER V. CITY OF WORCESTER* 102 Mass. 489. 1869 ToRT, for^juries caused by falling into an excavation on the south side of the city hall, upon the pubUc common, in Worcester. The judge reported the case. The excavation had been dug imder the direction of a committee of the city council, which had charge of making certain alterations in the city hall building. It was situated about fifteen feet from the building, and was to be the location of steam boilers for heating the building. There was evidence that plaintiff fell into the excavation in the evening, while crossing upon a path which had been used by the public for a walk for more than twenty years; and that her injury was due to care- lessness in leaving the excavation unguarded. The city hall, the Old South meeting-house, and a public school-house are situated upon the common, which at present contains about nine acres and is fenced. Before the city hall was repaired and improved as aforesaid, the city had leased a part of the basement for markets. At the time of the in- jury, the building, being under repair, was not occupied for any purpose. But ever since the repairs were completed the entire building has been used for city offices, and meetings of the city government, and ward- rooms, excepting that the municipal court and pohce court for the city have occupied a part of the second story, for which the city receives rent from the county; and the entire basement is used for a lockup and for police offices for the city police, which said rooms were prepared for these purposes at the time of the repairs aforesaid. The judge ruled that the plaintiff could not recover, directed a verdict for the defendant, and reported the case. G. F. Verry, for the plaintiff. 356 CASES ON MUNICIPAL OH PUBLIC COBPOKATIONS [CHAP. IX W. W. Rice, for the defendants. Gray, J. The distinction is well established between the responsi- bilities of towns and cities for acts done in their public capacity, in the discharge of duties imposed upon them by the legislature for the public benefit, and for acts done in what may be called their private character, in the management of property or rights voluntarily held by them for their own immediate profit or advantage as a corporation, although inuring, of course, ultimately to the benefit of the public. To render municipal corporations hable to private actions for omis- sion or neglect to perform a corporate duty imposed by general law on all towns and cities alike, and from the performance of which they de- rive no compensation or benefit in their corporate capacity, an express statute is doubtless necessary. Such is the well settled rule in actions against towns or cities for defects in highways. 5 Edw. IV. 2, pi. 24; Riddle v. Proprietors of Locks & Canals, 7 Mass. 169, 187; Mower v. Leicester, 9 Mass. 247; Holman v. Townsend, 13 Met. 297; Brady v. Lowell, 3 Cush. 121 ; Providence v. Clapp, 17 How. 161, 167. The same rule has been held to govern an action against a town by a legal voter therein, for an injury suffered while attending a town meeting, from the want of repair in the town-house erected and maintained by the town for mimicipal purposes only; or by a child, attending a public school, for an injiu-y suffered from falling into a dangerous excavation in the school-house yard, the existence of which was known to the town, and which had been dug by order of the selectmen to obtain gravel for the repair of the highways of the town and to make a regular slope from the nearest highway to the school-house. Eastman v. Meredith, 36 N. H. 284; Bigelow v. Randolph, 14 Gray, 541. But this rule does not exempt towns and cities from the liabiUty to which other corporations are subject, for negligence in managing or dealing with property or rights held by them for their own advantage or emolument. Thus where a special charter, accepted by a city or town, or granted at its request, requires it to construct public works, and enables it to assess the expense thereon upon those immediately benefited thereby, or to derive benefit in its own corporate capacity from the use thereof, by way of tolls or otherwise, the city or town is liable, as any other corporation would be, for any injury done to any person in the neghgent exercise of the powers so conferred. Henley v. Lyme, 5 Bing. 91, s. c. 3 B. & Ad. 77, 1 Scott, 29, 1 Bing. N. C. 222, 2 CI. & Fin. 331, 8 Bhgh (n. s.), 690; Weet v. Brockport, 16 N. Y. 161, note; Weightman v. Washington, 1 Black, 39; Nebraska City v. Campbell, 2 Black, 590. Perley, C. J., in Eastman v. Meredith, 36 N. H. 289-294; Metcalf, J., in Bigelow v. Randolph, 14 Gray, 543; Child v. Boston, i Allen, 41, 51. So where a municipal corporation holds or deals with property as its own, not for the direct and immediate use of the public, but for its own benefit, by receiving rents or otherwise, in the same way as a CHAP. IX] SHELDON V. VILLAGE OF KALAMAZOO 357 private owner might, it is liable to the same extent as he would be for the negligent management thereof to the injury of others. [The court here referred to various cases.] In the case at bar, it appears from the report of the learned jiidge who presided at the second trial, that the evidence tended to show that the plaintifF, while walking, using due care, upon a footpath which had been used by the public for more than twenty years, and had been laid out and graded from time to time and prepared and cared for by the town and city of Worcester, and was within the pubKc common which had been used by the inhabitants of the town for a much longer period, fell into a deep excavation, made by direction of a joint commit- tee of the city council, under the authority and at the expense of the city, in the course of repairing and improving a building standing within the common, used by the city principally for municipal purposes, but a substantial portion of which, both before and after the time of the accident, the city leased, and received rent for, either from private persons or from the county, and which was therefore held and used by the city, not for mimicipal purposes exclusively, but in considerable part as a source of revenue; and that this excavation was within a few feet of the building, and was carelessly left unguarded. If, in the course of repairing this building, the servants and agents of the city, acting by its authority, neghgently suffered the adjoining land within its control to be in a dangerous condition, without proper notice to persons exposed to the danger, coming there rightfully under an implied invitation and license, and using due care, the city was responsible, as any private owner would be, for an injury sustained by such a person by reason of such negligence; and it is immaterial whether the title in the land was or was not in the defendant. Carleton v. Franconia Iron & Steel Co., 99 Mass. 216. The case should therefore have been submitted to the jury. New trial ordered. 4. For a Positive Trespass on, Appropriation of, or Nuisance to, Private Property SHELDON V. VILLAGE OF KALAMAZOO 24: Mich. 383. 1872 Error to Kalamazoo circuit. Campbell, J. The present controversy arises out of a certain action of the marshal of the village of Kalamazoo, in pursuance of a resolution of the village board, in entering upon the close of the plain- tiff and throwing down his fences, on a claim that he was occupying part of a village street. 358 CASES ON MUNICIPAL OK PUBLIC CORPOKATIONS [CHAP. IX The plaintiff proved title to the land, and offered to show a resolu- tion of the president and trustees of the village duly assembled, whereby the committee on streets were directed to notify all persons on the line of the Olmstead road, so called, who had encroached upon that road within the village hmits, by the erection of fences or otherwise, to re- move theu- fences and cease to encroach on it, and on failure of any one to comply, then the committee were directed to notify the mar- shal forthwith to remove the fences, so that said encroachments should cease to exist. He further offered to show that his land adjoined said road and his fence stood on the line, but that defendants claimed the fence was in the road and encroached on it; that thereupon they passed said resolution, and in piursuance thereof the street committee notified the plaintiff to remove the fence, and set it back ten or twelve feet on his land, which he refused to do; that thereupon the com- mittee directed the marshal to tear down and remove the fence, and threatened to remove him from office unless he did so; and he there- upon complied with their directions and removed the fence. The court refused to allow any evidence to be received, basing the refusal on the ground (as we infer from the objections) that the presi- dent and trustees acted in the capacity of public officers and not mu- nicipal agents, and that the corporation is not liable for their acts in the premises. The injurious act complained of is not a public grievance, but is a wrong done to a private person. It is not a wrong arising from neglect, but is the direct operation of a willful trespass. The case is therefore f reed ^ from all those complications which attend the discussion of questions of liability for neglects and for public grievances. And as the whole control over the subject of streets in the village of Kala- mazoo is in the corporate authorities, there is no room for the con- sideration of those difficulties which arise where corporate action is aimed at matters entirely foreign to the concerns of the municipality. The doctrine is entirely untenable that there can be no municipal liability for unlawful acts done by municipal authorities to the preju- dice of private parties. In this respect, public corporations are as distinctly legal persons as private corporations. There are officers who are corporation agents, and there are municipal officers whose duties are independent of agency and with distinct liabihties. But when the act done is in law a corporate act, there is no ground upon reason or authority for holding that if there is any legal liability at all arising out of it, the corporation may not be answerable. There is no conffict whatever in the authorities on this head. The only dis- agreement is concerning corporate responsibility in cases of alleged neglect of duty, and concerning the bounds of what may be termed their legislative discretion, as distinguished from their other action. To hold that positive wrongs must in all cases be considered as purely individual and not corporate acts, would be a novelty in jurisprudence. CHAP. IX] SHELDOX V. VILLAGE OF KALAMAZOO 359 Although not subject like corporations to the jurisdiction of courts, it has always been understood that even states and nations may be held responsible for the wrongs of their authorized agents, and the whole system of pubhc law rests on this assumption. The idea, therefore, that a corporate body has a discretionary power to do wrong and not suffer for it, is not in harmony with any safe principle. There may be certain cases where is, of necessity, a final discretion; but there can be no absolute discretionary power over private persons or property. They are assured by the law of the land against any improper inter- ference, and no pubhc authority exists which can authorize their im- munity to be taken away. The act complained of here is a forcible taking of private lands for public use, without either compensation, or any steps under the forms of law to determine the necessity of taking them. The only justifica- tion of the act must be found in showing them to belong already to a lawfully existing public highway. This is a question of fact and of private right, and the claimant of the land cannot be deprived, by any power in this State, from having his rights passed upon by the legal tribunals. There are decisions which hold that when a corporate board has power to establish grades and other public works, merely incidental inconveniences will not authorize their honestly exercised discretion to be disregarded. How far this doctrine can be carried we have no occasion now to consider. The incidental damage which may arise from the vicinity of public improvements, and the imperfections of their plan, is very different from the actual invasion of private posses- sions. There is no case where the actual taking of private property is damnum absque injuria. Compensation is a constitutional condition of such taking, and it can only be lawful when the necessity of the taking, as well as the measure of compensation, has been determined in a legal way. If a municipal board can finally determine that a highway already exists over private lands, there can be no security whatever ajgainst unlawful seizures. It would not only allow interested judges to decide, but it would cut off all appeal from their decisions. In all the proceedings for taking land for streets, in cities and villages, the municipality is regarded as a party litigant: People v. Brighton, 20 Mich. R. 57. When the local authorities decide that they desire the way established, they then become petitioners and movers, just as railroad companies do where land is needed for their purposes. The contest is between the city or village and the private citizen, and when the damages are determined and the land is to be used, the former is responsible for their payment. There would be no more propriety in allowing a corporation to determine for itself that it already owned the way, than in permitting a private person to decide his own action of ejectment. If the property in dispute is not subject to the pubhc easement 360 CASES ON MUNICIPAL OK PUBLIC CORPOHATIONS [CHAP. IX asserted, then the village of Kalamazoo has taken possession of prop- erty it could not lawfully appropriate without a legal condemnation. There is no authority that we can find which holds such an invasion of private lands not to be an act of the corporation, and none which would exempt the corporation from liability to an action for the wrong. The directions to the marshal came from the authority of the village board, acting as a board, and not as individuals, and all that was done under the resolution was in the course of agency, and not in the dis- tinct exercise of discretionary powers over which the board had no con- trol. None of the persons acting possessed any such discretionary jurisdiction in relation to protecting public ways. The whole control, as already suggested, is given by the charter to the corporate board, and all parties acted on that theory. The principle of liability is, therefore, well established on a line of authority which has not been questioned: Thayer v. Boston, 19 Pick. R. 511; Clark v. Washington, 12 Wheat. R. 40; Allen v. Decatur, 23 111. 332; Lee v. Sandy Hill, 40 N. Y. 442; Nichols v. Boston, 98 Mass. R. 39; Rochester White Lead Co. V. City of Rochester, 3 N. Y. 465; Detroit v. Corey, 9 Mich. R. 165; Pennoyer v. Saginaw City, 8 Mich. R. 534. . . . We think the judgments should be reversed with costs, and a new trial granted. ASHLEY V. CITY OF PORT HURON 35 Mich. 296. 1877 CooLET, C. J. The action in this case was instituted to recover damages for an injury caused to the house of the plaintiff by the cut- ting of a sewer under the direction of the city authorities, and under city legislation, the validity of which is not disputed. The necessary result of cutting the sewer, the plaintiff claims, was, to collect and throw large quantities of water upon his premises which otherwise ■would not have flowed upon them; and it is for an injury thereby caused that he sues. The evidence offered on the part of the plaintiff tended to establish the case he declared upon, but the court instructed the jury that though they should find the facts to be as the plaintiff claimed, they must still return a verdict for the defendant. The ground of this decision, as we understand it, was, that the city, in ordering the construction of the sewer and in constructing it, was act- ing in the exercise of its legislative and discretionary authority, and was consequently exempt from any liability to persons who might happen to be injured. That is the ground that is assumed by counsel for the city in this court, and it is supposed to be the ground on which the case was decided in the court below. . . . CHAP. IX] MILES V. CITY OP WORCESTER 361 It is very manifest from this reference to authorities, that they recognize in municipal corporations no exemption from responsibihty where the injury an individual has received is a direct injury accom- plished by a corporate act which is in the nature of a trespass upon him. The right of an individual to the occupation and enjoyment of his premises is exclusive, and the public authorities have no more liberty to trespass upon it than has a private individual. If the cor- poration send people with picks and spades to cut a street through it without first acquiring the right of way, it is liable for a tort; but it is no more liable imder such circumstances than it is when it pours upon his land a flood of water by a public sewer so constructed that the flooding must be a necessary result. The one is no more unjustifi- able, and no more an actionable wrong, than the other. Each is a tres- pass, and in each instance the city exceeds its lawful jurisdiction. A municipal charter never gives and never could give authority to ap- propriate the freehold of a citizen without compensation, whether it be done through an actual taking of it for streets or buildings, or by flooding it so as to interfere with the owner's possession. His property right is appropriated in the one case as much as in the other. Pum- pelly v. Green Bay Co., 13 Wall. 166; Arimond v. Green Bay, etc., Co. 31 Wis. 316; Eaton v. B. C. & M. R. R. Co., 51 N. H. 504. A like excess of jurisdiction appears when in the exercise of its powers a mimicipal corporation creates a nuisance to the injury of an indi- vidual. The doctrine of liability in such cases is familiar and was acted upon in Pennoyer v. Saginaw, 8 Mich. 534. . . . Judgment reversed. New trial ordered. MILES V. CITY OF WORCESTER* 154 Mass. 511. 1891 Tort for damages occasioned by an encroachment upon plaintiff's land of a retaining wall, which had been built by the city in 1871 on the dividing line between the plaintiff's land and a lot owned by the city. There was evidence that the defendant had acquired the lot and had always used it for the purposes of a public high school; that the wall since it was built had been pressed out of position by reason of the weight of the filling behind it or by the action of surface water or frost, so that for nearly or quite a foot at the bottom it had bulged out and come upon the plaintiff's land; and that this bulging out of the wall had increased within six years before the date of the writ, and had gradually affected the plaintiff's estate. 362 CASES ON MUNICIPAL OB PUBLIC CORPORATIONS [CHAP. IX The judge instructed the jury, in substance, that if the plaintiff by- reason of the encroachment of the wall had been kept out of possession and occupation of a part of this land, and if within six years before the date of the writ the city had allowed or suffered the wall to be pushed and crowded upon the plaintiff's land, creating a nuisance thereto, causing him special and peculiar damage, then there was a liability in a,n action of tort as for a nuisance, no other objection existing to a recovery. The jury returned a, verdict for the plaintiff; and the defendant alleged exceptions. F. P. Goulding, for the defendants. W. S. B. Hopkins {F. B. Smith with him), for the plaintiff. Allen, J. It is obvious that the defendant's wall, in its present posi- tion upon the plaintiff's land, must be deemed an actionable nuisance, unless the defendant can claim exemption from responsibility on some special ground. Codman v. Evans, 7 AUen, 431; Nichols v. Boston, 98 Mass. 39, 43; Fay v. Prentice, 1 C. B. 828. The defendant suggests that it is not liable, because the wall was built and maintained solely for the public use, and with the sole view to the general benefit and under the requirement of general laws; and that the case cannot be distinguished in principle from the line of cases beginning with Hill v. Boston, 122 Mass. 344, and ending with Howard v. Worcester, 153 Mass. 426. We are not aware, however, that it has ever been held that a pri- vate nuisance to property can be justified or excused on that ground. The verdict shows a continuous occupation of the t)laintiff's land by the encroachment of the defendant's wall. The question of negligence in the building of the wall is not material. The erection was com- pleted, and was accepted by the defendant, and is now in the defend- ant's sole charge; and if it is a nuisance, the defendant is responsible. Staple V. Spring, 10 Mass. 72, 74; Nichols v. Boston, 98 Mass. 39. Such an occupation of the plaintiff's land cannot be excused for the reasons assigned. A city cannot enlarge its school grounds by taking in the land of an adjoining owner by means of a wall or fence. The public use and the general benefit will not justify such a nuisance to the property of another. If more land is needed, it must be taken in the regular way, and compensation paid, but 'if, by the action of the elements or other- wise, without the plaintiff's fault, the defendant's wall comes upon the plaintiff's land and continues there, it becomes a nuisance for which the defendant is responsible; and so are the authorities. Gorham v. Gross, 125 Mass. 232, 239; Khron v. Brock, 144 Mass. 516; Eastman v. Mere- dith, 36 N. H. 284, 296; Hay v. Cohoes Co., 2 Comst. 159; Tremain v. Cohoes Co., 2 Comst. 163; Weet v. Brockport, 16 N. Y. 161, 172, note; St. Peter v. Denison, 58 N. Y. 416, 421; Mayor & City Council of Cum- berland V. Willison, 50 Md. 138; Harper v. Milwaukee, 30 Wis. 365; Pumpelly v. Green Bay Co., 13 Wall. 166, 181; Dillon, Mun. Corp' § 985. CHAP. IX.] MOHTON S. MAYOR, ETC., OF NEW YORK 363 The case is distinguishable from Middlesex Co. v. McCtie, 149 Mass. 103, where soil from the defendant's land upon a hillside was washed into the plaintiff's mill-pond by the rains, when the defendant had built no artificial structure, and had done nothing more than to cultivate his land in the ordinary way. Exceptions overruled. MORTON V. MAYOR, ETC., OF NEW YORK* 140 N. Y. 207. 1893 Appeal from judgment of the General Term of the Supreme Court entered upon an order which reversed a judgment in favor of defendant entered upon a decision of the court on trial at Circuit. Action to recover damages for maintaining a pumping station near certain brick houses owned by the plaintiff. The injury of which the plaintiff complained was that, by reason of the operation of the pumps and machinery in the station, the noise and vibration therefrom greatly damaged the plaintiff's houses, next adjoining, rendering them unten- antable, or at least greatly diminishing their rental value. The pumping station was established in connection with the Croton water system, to supply water to high places in the city. It was erected under an act of 1878, which empowered the city authorities to raise and spend funds in extending the pipes and enlarging the distribution of the water; and "in laying mains and erecting or constructing such struc- tures and fixtures as the said Commissioner of Public Works may deem necessary to deliver said water at high levels and in greater quantities, an additional sum not exceeding one million five hundred thousand dol- lars." The structure was placed on land previously owned by the city. Charles J. Blandy, for appellant. B. F. Traxn), for respondent. O'Brien, J. . . . There is no complaint of negligent management on the part of the municipal authorities, but the plaintiff's contention is that he was entitled to the use and enjoyment of the property which he owned free from such annoyance or loss. On the other hand the de- fendant insists that it is not liable for the results of the injury for the reason that it acted in the exercise of powers for pubKc purposes con- ferred by express legislative authority. These positions assumed by the respective parties sufficiently disclose the natxu-e of the legal question involved. The defendant's position was sustained by the trial court, and the complaint dismissed, but the General Term has reversed the judgment. The defendant, by the exercise of the power of eminent domain. 364 CASES ON MUNICIPAL OR PUBLIC CORPORATIONS [CHAP. IX could have taken such portion of the adjoining property as would enable it to conduct its operations without damage to what remained, and the owner would then be entitled to compensation. It may be a question worthy of consiideration whether upon the facts disclosed the defend- ant's acts do not virtually amount to a taking without any compensa- tion to the extent of the damage caused, but a consideration of this featiu-e of the case is rendered unnecessary by recent decisions of this court which, when applied to the facts disclosed by the record, fully sustain the view taken by the learned General Term. These cases have grafted upon the principle contended for in behalf of the defendant (that legal liability in damages cannot result from acts done by a cor- poration in the performance of a pubhc duty by express legislative au- thority, resulting in consequential injury to others, and which, as between individuals would be regarded as a nuisance), an important limitation. It is that the authority which will shelter an actual nuisance must be express or a clear and unquestionable implication from powers conferred, certain and unambiguous, and such as to show that the legis- lature must have intended and contemplated the doing of the very act in question. Hill v. Mayor, etc., 139 N. Y. 495; Bohan v. Port Jervis Gas Light Co., 122 id. 18; Cogswell v. N. Y., N. H. & Hartf. R. R. Co., 103 id. 10. The authorities cited show that this qualification of the general doc- trine is founded in reason and justice, and that it is not by any means a new principle. It only remains to point out its application to this case. The legislature undoubtedly authorized the defendant to construct a building, and to place in it the necessary machinery to accomplish the purpose in view. But that is not the act complained of, or which pro- duced the injury to the plaintiff's property. The wrong consisted in placing the building and machinery so near to the adjoining property as to injuriously affect it by the noise and vibration. The city has a right to build upon its own land, but there was nothing in the statute that required it to place the structure where it did. It could perform every duty imposed by the statute by building the pumping station at such distance from the adjoming houses as to avoid the results of which the plaintiff justly complains. If it was not possible or practicable to do that upon the land that the defendant owned, then more could have been acquired for the purpose. The legislature did not select the place for the station, but the defendant did. A general authority to raise and expend money for the purpose of extending and enlarging the supply of water, and erecting the necessary structures and machinery for that purpose, is neither an express nor imphed authority to construct a pump- ing station which adjoins the walls of another house or block of houses in such manner as to render them untenantable by the noise and vibra- tion. It was entu-ely possible to execute the statute without invading the property rights of others. General powers for the accomplishment of a general purpose were conferred upon the defendant, but no express or CHAP. IX] JOHNSON V. CITY OF SOMEEVILLE 365 implied power or authority was conferred to do the very act complained of, nor can it be said that the legislature contemplated it. It is quite likely that all the power intended to be conferred by the statute was to enable the city to raise and expend the money for the purpose indi- cated. Aside from this power, the city probably could, if it had the means, build the station under existing law, and without any additional legislation. But, however that may be, it cannot be said that the legis- lature contemplated the selection of such a place for the station that the operation of the pumps and machinery would inevitably expose private property to destruction or injury. The language of Chief Justice Marshall in U. S. v. Fisher (2 Cranch, 358) is applicable: "Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness to induce a court of justice to suppose a design to effect such objects." It is plain, we think, that the specific act of the defendant which re- sulted in the injury is not within the express words of the statute, or any necessary implication. The order appealed from, should, therefore, be affirmed, and judgment absolute ordered for the plaintiff, with costs. JOHNSON V. CITY OF SOMERVILLE t 195 Mass. 370. 1907 LoEiNG, J. This case comes up on a report after a verdict for the plaintiff. What the plaintiff complained of in this action was that his cellar was flooded because of ashes being dumped into a water course on the next lot of land owned by the heirs of Mary C. Gurney. The jury must be taken to have found that there was a water course on the next lot, and that the plaintiff's cellar was flooded by reason of the dumping of ashes into such water course. The question left open under the report is whether on any aspect of the evidence the jury were warranted in finding that the defendant city was liable. It appeared that the water course in question was a brook which ran dry in summer. There was evidence that when it ran dry a mud hole of stagnant water was left on the premises in or near its course. The record of the board of health of the defendant city showed that in 1893 that board voted that the brook "must be drained to the sewer," and in 1896 the board passed the same vote with the addition that the work should be done by the heirs of Mary C. Gurney. 366 CASES ON MUNICIPAL OR PUBLIC CORPORATIONS [CHAP. IX At the trial the plaintiff testified that the deposit of ashes began in 1896 and continued for four years; that he knew of the deposits and never made any attempt to prevent them. . . . If the filling here complained of was not found by the jxu-y to have been made under an order of the board of health, they must have found that it was made by Huse of his own motion because he found it con- venient to dump there the ashes collected by him, as an employee of the city, from the residences in that neighborhood. The way and the only way in which the plaintiff has made out that the act of Huse (and those acting with him) was in law the act of the defendant city was in , the proof that what Huse did was done in the course of his employment by the defendant city in removing ashes from residences in the neighborhood. . . . This brings us to the question of the defendant's liability in the case at bar if the jury found that Huse in removing the ashes was in the service of the city and not of the board of "health acting as such. If the plaintiff had been run over and injured through the negligence of a driver of one of the defendant's carts, while it was being used in the removal of the ashes here in question, he could not have recovered damages for the injury from the defendant city. That is established by the recent case of Haley v. Boston, 191 Mass. 291. The ground on which it was contended that the city is liable here is that the rule applied in Haley v. Boston is confined to cases of negUgence and does not apply to injuries caused by intentional acts, that is to say, by acts which if done on the plaintiff's land in place of being done on land not owned by the plaintiff would be ground for an action of trespass quare clausum f regit, as distinguished from an action on the case. In the opinion of a majority of the court no distinction can be made between negligent and intentional acts. [The court here reviewed or cited many Massachusetts decisions.] In Kelly v. Boston, 186 Mass. 165, the plaintiff sought to make the defendant city liable for injury to an awning on his store caused by snow being thrown from the roof of the city hall. It was held that the rule here in question applied, and that the plaintiff could not recover. In Barry v. Smith, 191 Mass. 78, it was held that by reason of this same rule the members of a board of health were not liable for acts of trespass committed by men employed under them in conducting a hospital. . . . In the first place the rule now under consideration has nothing to do with mere nonfeasance. It is settled that for non-performance of a public duty resulting in damage to an individual, no action lies against the municipal body or against the person upon whom the public duty in question is put. Riddle v. Proprietors of Locks & Canals, 7 Mass. 169; Mower v. Leiceister, 9 Mass. 247; Rvssell v. Men of Devon, 2 T. R. 667. See also Hill v. Boston, 122 Mass. 344, 351, where the cases are collected. Again the rule with which we are dealing has nothing to do with the liabihty of a city or town, nor has it to do with the liability of a pubUc CHAP. IX] JOHNSON V. CITY OF SOMEKVILLE 367 officer, for the tortious acts done by the city or town itself or by the public officer in person. Where the tortious act complained of is done in pursuance of a vote of the inhabitants of the town in town meeting (as was the case in Lawrence v. Fairhaven, 5 Gray, 110) or in pursuance of a vote of the city council of a city (as was the case in Perry v. Worces- ter, 6 Gray, 544), the town and city respectively are Kable. The lia- bility of a city under those circumstances was recognized in terms by Field, J., in Manners v. Haverhill, 135 Mass. 165, 171. To the same effect see Edgerly v. Concord, 62 N. H. 8, 19. So where the tortious act is done by the public officer personally, or by some one in his presence and under his personal direction (as to which see Elder v. Bemis, 2 Met. 599), the pubHc officer is personally hable. This was decided in Moynihan v. Todd, 188 Mass. 310, and in the earlier case of Elder v. Bemis, 2 Met. 599. It was afterwards laid down as the rule to be fol- lowed at the new trial ordered in Barry v. Smith, 191 Mass. 78, 91. Lastly, the rule with which we are dealing has nothing to do with the liability of a mimicipal body as owner of land or of a building. Its liability as owner of land or of a building is the same as that of a natural person. Miles v. Worcester, 154 Mass. 511. See also in this connection Field, J., in Manners v. Haverhill, 135 Mass. 165, 171. To the same effect see Eastman v. Meredith, 36 N. H. 284, 295, 296. The rule we are deaUng with here has to do with the liability of a municipal body (whether a city or a town), and with the liability of a pubUc officer, for damages caused by the tortious acts of misfeasance done by employees ia the course of their employment. . . . The question, and the only question in such a case, is whether the relation of master and servant exists between the employee and the municipal body or between the employee and the public officer accord- ingly as one or the other is the defendant in the action in question. [An exhaustive collection and discussion of Massachusetts decisions has been omitted.] In Lawrence v. Fairhaven, 5 Gray, 110, the defendant town by vote of the town, and in Perry v. Worcester, 6 Gray, 544, the defendant city by vote of, the city council, directed the act to be done for which it was held to be liable as an invasion of the plaintiff's right of property, as we already have pointed out. . . . To conclude: The dumping of the ashes complained of in the case at bar was not done on the land of the defendant but upon land of the heirs of Mary C. Gurney. It was not done in pursuance of an order of the defendant city itself, that is, of the city council. It was done by the city's superintendent in the performance of a pubUc duty from which the city derived no private benefit. Haley v. Boston, 191 Mass. 291. In the opinion of a majority of the court the act of dumping these ashes on the Gurney land was not in contemplation of law the act of the defendant city, and for that reason it is not liable for it. The maintenance of the nuisance caused by the ashes remaining where 368 CASES ON MUNICIPAL OH PUBLIC COKPORATIONS [CHAP. IX they were dumped would appear to be the act of the owucts of the Gurney estate. It is not the act of the defendant city. Judgment jor the defendant. 5. For Permitting a Public Nuisance SPEIR V. CITY OF BROOKLYN * 139 N. Y. 6. 1893 Appeal from judgment of the General Term of the City Court of Brooklyn entered upon an order which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. Action to recover damages for injuries to plaintiff's premises in the city of Brooklyn, caused by the explosion of a rocket. Under the city ordinances, one Amatrano obtained a permit from the mayor's office, for the discharge of fireworks at the corner of Montague and CKnton streets. Under this permit, there was a display of fireworks, in the streets, at the place mentioned, on the occasion of a political meeting. During the display one of the rockets entered the window of plaintiff's house, within sixty or eigh.ty feet from the point where it was discharged, occasioning the damage for which the action is brought. It had been customary for the mayor to grant similar permits under the assumed authority of the ordinance referred to. The city ordinance forbade, under penalty, the discharging of fireworks, except by order of the com- mon council, or on July 4, or when " authorized by a permit from the mayor," or, in another provision, when "allowed under permit from the mayor," etc. Further facts are stated in the opinion. Almet F. Jenks, for appellant. William C. De Witt, for respondent. Andrews, C. J. The finding of the trial judge that the use of the street for the discharge of fireworks constituted a pubhc nuisance is amply justified in view of the circumstances. It has been decided in some cases that the discharge of fireworks in the streets of a city or village is a nuisance per se, and subjects persons engaged in the transac- tion to responsibility for any injury to person or property resulting therefrom. Jenne v. Sutton, 43 N. J. L. 257; Conklin v. Thompson, 29 Barb. 218. It may be doubted whether the doctrine in its full breadth can be maintained. The practice of making the display of fireworks a part of the entertainment furnished by municipalities on occasions of the celebration of holidays or the commemoration of important public CHAP. IX] SPEIE V. CITY OF BKOOKLTN 369 events, is almost universal in cities and villages, and we are not prepared to say that this may not be done, and that streets and public places may not be used for this purpose, under the supervision of municipal authorities, due care being used both as to the place selected, and in the management of the display, without subjecting the municipality to the charge of sanctioning a nuisance and the responsibility of wrong- doers. But the circumstances iu the present case do not take the transaction in question out of the category of nuisances, or relieve the parties who conducted or promoted the affair from liability for the injury occasioned. The discharge of fireworks in a city under any circumstances is attended with danger. In the present case the danger was greatly enhanced by the location. It was at the junction of two narrow streets of a large city, completely built upon, and where any misadventure in managing the discharge would be likely to result in injury to persons or property. The display was of considerable magnitude, and the explosives, especially the rockets, were heavily charged and, when exploded, were carried with immense velocity. It was managed by private persons under no official responsibility, and no municipal or public interest was concerned. Under the circumstances, in view of the place, the danger involved, and the occasion, the transaction was an unreasonable, unwarranted, and unlawful use of the streets, exposing persons and property to injury, and was properly found to constitute a public nuisance. The judgment below adjudges that the city of Brooklyn is liable for the injury sustained by the plaintiff and this is the only question in the case. That a municipal corporation may commit an actionable wrong and become liable for a tort is now beyond dispute. If the city directed or authorized the discharge of the fireworks which resulted in the in- jury complained of, it is, we think, liable. The inquiry is whether the city of Brooklyn did anything which as to this plaintiff placed it in the attitude of a principal in carrying on the display. The mayor of the city, its chief executive officer, expressly authorized it, assuming to act under an ordinance of the common council. In so doing and in construing the ordinance as authorizing him to grant a permit to private persons to use the public streets for the discharge of fireworks, he was following the practice which had long prevailed, and so far as appears no question had been raised that such permits were not within the ordinance. The ■ permit when given and communicated to the police was understood as preventing any poUce interference with the act permitted, and it had that effect in the case in question. The city had power to prohibit or regulate the use of fireworks within the city and to enact ordinances upon the subject. The ordinances passed were not ultra vires in the sense that it was not within the power or authority of the corporation to act in reference to the subject under any circumstances. (See Dillon on Mun. Corp., par. 963, et seq.) . . . (See Cohen v. Mayor, etc., 113 N. Y. 532.) But it is claimed that the ordinance did not by its 370 CASES ON MUNICIPAL OB PUBLIC COEPOEATIONS [CHAP. IX true construction authorize the mayor to grant permits to use the streets for the discharge of fireworks. . . . The ordinance was, in fact, the reason for the granting of the permit in this case. We think that as to the plaintifP, who has suffered the injury, the city is bound by the construction of the ordinance placed upon it by the mayor, and upon which for years the mayor had acted. We think the judgment is sustainable and it should, therefore, be affirmed. All concur. Jvdgment affirmed. LINCOLN V. CITY OF BOSTON * 148 Mass. 578. 1889 ToKT. The Superior Court sustained a demurrer; and the plaintiff appealed. The declaration alleges facts in substance as follows: While the plaintiff, using due care, was driving in a buggy on Charles Street, in Boston, adjacent to the Common, his horse was frightened and caused to run away and injure plaintiff, by the firing of cannon on the Common one hundred feet distant from the street. The carmon be- longed to a battery of the State militia, and had been fired by them under a permit or license granted by the mayor in pursuance of the following city ordinance: "No cannon or artillery shall be fired by the militia or others upon the Common or other public grounds, unless such firing is authorized by the city council, the mayor, or the com- mander in chief of the militia of the Commonwealth." The plaintiff avers that the Common is a tract of land owned by the defendant, over which it has full control; and that the firing of the cannon thereon was a public nuisance. W. K. Richardson (J. T. Wheelwright with him), for the plaintiff. A. J. Bailey, for the defendant. Holmes, J. We shall not enter upon the discussion to which we were invited by the arguments, as to whether a private land owner would be liable to travelers upon a highway for the noise caused by the firing of a cannon three times upon his land by his license. The case of White v. Jameson, L. R. 18 Eq. 303, assuming that we should follow it, does not go to the extent of holding a landowner liable for a transitory act of a third person, the scope of which cannot be enlarged by calling it a public nuisance, and which has in it no element of con- tinuing use of the real estate. See Butter field v. Boston, ante, p. 544; Commonwealth v. Patterson, 138 Mass. 498, 500. But we express no opinion whether the principle of White v. Jameson, or of Jackmrni v. Arlington Mills, 137 Mass. 277, Dalay v. Savage, 145 Mass. 38, and CHAP. IX] LINCOLN V. CITY OF BOSTON 371 the cases cited in Clifford v. Atlantic Cotton Mills, 146 Mass. 47, would extend to the one supposed, because, if it would, we are of opinion that a different principle governs the liability of the city of Boston for the firing of cannon on the Common under a license granted in pur- suance of the ordinance set out in the declaration. Revised Ordinances of 1885, ch. 42, par. 14. The city is alleged to own the Common. But it appears by statutes and decisions, of which we are bound to take notice, that its rights, even at common law, hardly extend beyond a technical title, without the usual incidents of title, and it is equally apparent that the license which it gave was not given by it as an act of ownership, but as an act of municipal government. " The city holds the Common for the public benefit, and not for its emolument, or as a source of revenue." The use of it is dedicated to and belongs to the public. Steele v. Boston, 128 Mass. 583; Veale v. Boston, 135 Mass. 187; Abbott v. Cottage City, 143 Mass. 521. And the legislature has regidated the use very strictly. The city cannot let or sell the Common. St. 1854, ch. 448, par. 39. It cannot build upon it except within the narrowest limits. Pub. Sts. ch. 54, par. 16; ch. 27, par 50. See St. 1859, ch. 210, par. 3. It cannot lay out ways over it. Pub. Sts. ch. 54, par. 13. Conversely, the city is not bound to keep it in safe condition, and is not answerable for defects in the paths which cros^ it. Steele v. Boston, 128 Mass. 583; Veale v. Boston, 135 Mass. 187. See, also, Oliver v. Worcester, 102 Mass. 489; Clark v. Waltham, 128 Mass. 567. These considerations make plainer what is very plain without them, that the ordinance set out in the declaration is not the exercise of an owner's authority over his property, but is a police regulation of the use of a public place by the public, made by the city under its power to make needful and salutary by-laws, without regard to the accidental ownership of the fee. St. 1854, ch. 448, par. 35. [Citations omitted.] Like the ordinance discussed in Commonwealth v. Davis, its purpose is prohibitory, and the license which it implicitly authorizes (Revised Ordinances of 1885, ch. 1, par. 7) is merely a removal of the prohibi- tion, and of the liability to a penalty which otherwise would be in- curred. Revised Ordinances of 1885, ch. 1., par. 5. It makes no differ- ence whether the license is given by the mayor or by the commander in chief of the mihtia. See St. 1887, ch. 411, par. 90, 108, 109. In either case, the license is not a permission granted by the agents of the owner, but an adjudication of an exception to a quasi statutory rule, made by a person who for that purpose is not the owner's agent. A fortiori, the person who fires the cannon is not the city's agent or ser- vant, and the firing is not the city's act. The case, then, is simply that the city has failed to prohibit by legislation the firing of cannon in a public park, or has given its legis- lative sanction on certain conditions. It has no private interest in 372 CASES ON MUNICIPAL OK PUBLIC COEPOHATIONS [CHAP. IX the matter, and there is no statute giving an action for such a cause. Clark V. Waltham, 128 Mass. 567, 570, and cases supra- See Hutchin- son V. Concord, 41 Vt. 271, 274; Tindley v. Salem, 137 Mass. 171. Annoying, and even dangerous, as such firing may be, an adjoining householder could not maintain an action against the city; and the plaintifif stands no better than an adjoining owner would. We do not understand that he seeks to charge the city for a breach of its statu- tory duty with regard to highways. With regard to that, however it may be as to the duty of landowners, it would be enough to say that the act of the person who fired the cannon was the proximate or at least a concurring cause, and that he was not a servant of the city; Kidder V. Dunstable, 7 Gray, 104; or more shortly still, that noises outside the limits of the highway amounting to a public nuisance are not a statutory defect in the way. Hixon v. Lowell, 13 Gray, 59, 63; Keith V. Boston, 2 Allen, 552, 555; Bemis v. Arlington, 114 Mass. 507; Cook V. Montague, 115 Mass. 571. For these reasons, without considering other defenses, the demurrer must be sustained, and the judgment must be for the defendant. Perhaps it will save future litigation if we go one step further, and intimate that, as the subject matter was within the city's authority to regulate by by-law, and as the by-law, so far as appears, is reason- able, those who act under it are justified in doing what we all know extra-judicially to have been done upon the Common time out of mind. Judgment affirmed. 6. For Failure to Furnish a Public Service or Protection MILLS et al. v. CITY OF BROOKLYN * 32 N. Y. 489. 1865 Action to recover damages for injuries to plaintiffs' premises alleged to have been caused by the insufiiciency of a public sewer. The complaint set forth that the plaintiffs were the owners of a lot, with a brick dwelling-house thereon, situate at the northwest corner of Franklin and Putnam avenues, in the city of Brooklyn; that the city corporation had, by law, the care of the streets and avenues and the control of the widening, sewerage, and draining thereof; "that the defendant, etc., negligently and unskillfuUy built, provided, and established sewers at the corner of Franklin and Putnam avenues; that said sewers were, and always had been, insufllcient to conduct and carry away properly the water that was brought to said corner by the grade of Putnam and Franklin avenues, and the streets and avenues CHAP. IX] MILLS et al. V. CITY OF BROOKLYN 373 thereto adjacent; and that said sewers were so negligently and un- skillfuUy built, that they failed to perform the office for which they were constructed." It was then averred, that by reasbn of the premises, the plaintiffs' lot and house had been repeatedly ^oded with water, causing the walls to settle and crack, and the builflfeg'1igee»yeffiaBr«B^ %7in - y fl* ^ i {\vs \ t^^ n t ihr r fin j r Ti . f rom I 'nh r na i' j r-t;^ 1891) are named in the act. In January, 1894, and each year thereafter, the mayor and aldermen are required to appoint a member of the board to hold the office three years from the first day of the following February. They may " appoint a superintendent of the works and such other agents and servants as they may deem necessary, and may fix their compensation. 404 CASES ON MUNICIPAL OE PTTBUtC CORPORATIONS [CHAP. IX They may make such rules and regulations for their own government and in relation to all officers and agents appointed by them as they may deem proper. They shall have the control and management of the con- struction and enlargement of said works, and may make all such con- tracts and agreements for and on behalf of the city in relation thereto as they may deem proper and advisable, and shall have full charge and control over the said works when enlarged and constructed. They shall estabUsh rates and tolls, and prescribe rules and regulations for the use of water, and may sell and dispose of such articles of personal property connected with said works as they shall deem expedient, and may purchase such property as may be in their judgment necessary for said works and the purposes contemplated by this actTQLaws 1891, ch. 209, §§ 4, 5, 6, 8. The water commissioners are not the city's agents, but an inde- pendent board. The city cannot direct or control them in the discharge of their duties. They have exclusive authority to determine where and in what manner water pipes shall be laid, and to do all other things touching the construction, maintenance, and management of the water- works. For their misfeasance or that of their employees, the defend- ants are not liable, because they are not the defendant's servants. Ball V. Winchester, 32 N. H. 435; Edgerly v. Concord, 62 N. H. 8, 20; Walcott V. Swampscott, 1 Allen, 101; Morrison v. Lawrence, 98 Mass. 219, 221; Ham v. Mayor, 70 N. Y. 459. The defendants have no authority, and can confer none upon their officers and agents, to do any act relating to the construcjtion or manage- ment of the works. Their ordinance authorizing or directing their servants to lay water pipes in Market Street or elsewhere, or prescribing the manner of laying them, would be illegal and void. At common law a municipal corporation is not responsible for the acts of its agents or servants, or for their negligence in the performance of acts, that it has no power to authorize. Edgerly v. Concord, 62 N. H. 8, 19; Anthony v. Adams, 1 Met. 284; Lemon v. Newton, 134 Mass. 476; McCarthy v. Boston, 135 Mass. 197, 200, 201; Smith v. Rochester, 76 N. Y. 506; 2 Dill, Mun. Corp. § 766; Cool, Torts, 119. Whether the acts of which the plaintiff complains were done by the water commissoners or the defendants' servants, the declaration discloses no cause of action, and the demurrer must be sustained. The question whether the demurrer might be sustained upon another ground urged by the defendants (Laws 1893, ch. 59, § 1) is not considered.^ > See, also, Bailey v. New York, supra, p. 342. A good specimen of the indepen- dent public officer is a surveyor of highways in New England. In Walcott v. Swampscott, 1 Allen (Mass.), 101, a town was held not responsible for an injury' caused by the negligence of a laborer employed by the highway surveyor of the town. The following ia quoted from the opinion: "They (highway surveyors] are elected by towns and cities, not because they are to render services for their peculiar benefit or advantage, but because this mode of appointment has been deemed expedient by the legislature in the distribution of pubhc duties and burdens for the purposes of government, and for the good order CHAP. IX] GROSS V. PORTSMOUTH 405 and welfare of the community. They are, strictly speaking, public oflScers, clothed with certain powers and duties which are prescribed and regulated by statute. Towna cannot direct or control them in the performance of these duties; they cannot remove them from office during the term for which they are chosen; they are not amenable to towns for the manner in which they discharge the trust reposed in them by law; nor can towns exercise any right of selecting the servants or agents by whom they perform the work of repairing the highways. In the discharge of these general duties they are wholly independent of towns, and can in no sense be considered their ser- vants or agents. It is only in certain specified cases, and under carefully guarded limitations, that they can bind towns by their acta." 406 CASES ON MUNICIPAL OR PUBUC CORPORATIONS [cHAP. X CHAPTER X Rights and Remedies of Creditors BRINKERHOFF v. THE BOARD OF EDUCATION FOR THE CITY AND COUNTY OF NEW YORK et ah* 37 Howard's Practice Bep. (N. Y. Common Pleas) 499, s. c. Abbot's Practice (n. s.) 428. 1869 Before Dalt, F. J., Brady and Barrett, JJ. Action by a sub- contractor to enforce upon a public school-house in the city of New York, a lien under the Mechanic's Lien Law for labor and materials furnished by him in the construction of the building. By the Court, Daly, F. J. I expressed the opinion in McMahon v. The TerUh Ward School Officers, etc. (12 Abb. 129), that a party who per- formed work towards the erection of a public schoolhouse in the city of New York, had a lien upon the building, which could be enforced under the acts for the better security of mechanics and others erecting build- ings, or fiu-nishing materials therefor in this city (Laws of 1851, ch. 513; of 1855, ch. 404). But the point was not taken in the case, nor neces- sarily involved, as the judgment was reversible upon other grounds. . . . Since the decision in the case of McMahon v. The School Officers, etc., the Coiu"t of Appeals, in Darlington v. The Mayor of N. Y., etc. (31 N. Y. R. 164), have considered the question how far a judgment against the city can be enforced by a levy upon and sale of property belonging to, or held in trust by it, as a municipal corporation. Chief Justice Denio, by whom the opinion of the majority of the court was delivered, held that a municipal, equally with a private corporation, may have its prop- erty taken in execution if payment of a judgment is not otherwise made; but he distinguishes as exempt from the exercise of this right, such estate, real or personal, as may by law, or by authorized acts of the city government, be devoted to public use, such as the pubUc edifices, or their furniture, or ornaments, or the public parks, or grounds, or such as may be legally pledged for the payment of its debts. These, he holds, cannot be seized to satisfy a judgment, as these structures are public property devoted to specific public uses, in the same sense as similar structures are, in use by the State government, and though this is a distinction which appears to have been taken for the first time, it is one that when the purposes for which mimicipal corporations are created are considered, commends itself as founded in public necessity. • . . CHAP. X] BEINKEEHOFF V. BOARD OF EDUCATION 407 Municipal corporations came into use in England in the form of boroughs, through an arrangement by which certain managers of the local community undertook to pay the yearly rent or sum due to the superior or sovereign, in consideration of which they were permitted to levy the old duties, and were responsible for the funds committed to their care. This privilege of farming their tolls or duties was afterwards confirmed to them by acts of incorporation embracing other privileges, either gradually acquired or long enjoyed in places where the Romans had introduced the municipia, or cities enjoying the right of local self- government. Thompson's Essay on Municipal History, pp. 10, 11, 12; Paigrave's Anglo-Saxons, pp. 6, 11 ; Millar's English Government, p. 340; Angell and Ames on Corporations, §§ 16, 18, 21. Having thus the right to collect duties, and being responsible for the funds coming into their hands, it came to be recognized, very naturally, that they might on the one hand sue to enforce the payment of duties, and on the other be themselves sued to compel them to discharge the obligations they had assumed. As their municipal authority and duties gradually increased, the power to bring actions, and their hability at the suit of others, was both increased and varied. Actions by and against them are to be found as early as the Year Books, and the power was generally conferred specifically in the acts of incorporation; but the works of authority are barren of exact information as to the manner in which judgments against them were enforced, which may have arisen from the fact that they rarely refused to pay a judgment when recov- ered against them, and were always able, from the nature of their powers, to procure the means to discharge it. In Rex V. Gardiner (Cowp. 86), Justice Aston says: "As to the remedy of levying a duty upon a corporation, the books all agree that it may be levied, but they differ as to the mode." But he was speaking only to the question whether a private corporation (that is, a college) could be rated for the support of the poor of a parish. It is probable that a municipal corporation might, as was held in the case of private and trading corporations, be compelled to appear, or obey decrees for the payment of money after execution issued by the common law process of distringas, under which the lands and goods of the corpora- tion could be distrained, and, in the event of non-compUance, seques- trated. The Master and Wardens of the Company of Wax Chandlers, Skin. 27; The African Co., id. 84, 1 Ver. 121; The East India Co., 2 id. 396; Precs. in Chy. 129; The Hamborough Co., of Merchant Adventu- rers, Cases in Chy. 204. The right, however, to recover a judgment against them, would nec- essarily carry with it the right to enforce the payment of it. But the mode of enforcing it, so far as I have been able to find, is by no means cleariy indicated. Rolle, C. J., in the case of the Totim of Colchester (Styles, 267), says: ^' If a sum of money be to be levied upon a corporation, it may be levied 408 CASES ON MUNICIPAL OK PtTBLIC C0EP0KATI0N8 [CHAP. X upon the mayor, or upon any person being a member of the corporation." And in another case, in Styles, 366, the court ordered a distringas to levy a fine of twenty pounds, imposed after indictment, upon the in- habitants of a parish, for not keeping a bridge in repair. But I do not find in the early Abridgments of Fitzherbert, Brookes, or Sheppard, nor in that great repository of the common law adjudications, Viner's Abridgment, nor in the English treatises which I have examined, any- thing to indicate that judgments against municipal corporations ever were, or could be enforced by the seizure and sale of buildings or other property of the corporation devoted to public objects, such as jails, poor- houses, markets, courthouses, and other structures necessary in the local government of the place, and indispensable to enable a mimicipal corporation to carry out the purpose for which it is created. There are three cases, of comparatively recent origin, all relating to the borough of Poole, a small seaport town in the south of England, in which, or in one of which, this right appears to have been recognized; but the point was not involved, and it is apparent from the report of each case, that in no one of them was the question examined, or so' de- liberately considered or passed upon, as to entitle it to the weight of an adjudication upon this point. This will appear from a very brief statement of these cases. [The learned judge then reviewed Regina v. Ledgard, 1 Ad. & El. (U. S.) 616; Doe v. Roe, 1 Ad. & El. (U. S.) 700; Mayor v. Whitt, 15 M. & W. 571.] Chancellor Kent, in declaring that municipal corporations can sue and be sued, remarks that the judicial reports of this country abound with cases of suits against towns in their corporate capacity for debts and breaches of duty, for which they are responsible; but he says nothing as to the mode in which judgments against them in such actions can be enforced (2 Kent, 275, 4th ed.), and the question is one upon which the authorities in this country are by no means agreed, for in some in- stances it has been held that their property cannot be taken on execu- tion issued upon a judgment against them (Chicago v. Halsey, 25 111. R. 595) ; while in others it has been held that it can, or the right to take it has been impliedly recognized. Crafts v. EUiottvUle, 47 Maine, 141; Darlington v. The Mayor, etc., supra. In the first of these cases (Chicago v. Halsey, 25 HI. R. 595), it was held by the Supreme Court of Illinois, that upon a judgment against a municipal corporation the corporate property cannot be seized and sold under execution; that the proper remedy is mandami^s to compel a levy of taxes sufficient to enable the corporation to pay the judgment. The Superior Court of Chicago having refused to set aside an execution issued upon a judgment against the city, the Supreme Court of the State, upon appeal, reversed the decision of the court below, and directed it to enter an order quashing the execution. "It is true," says Breeze, J., "that by the charter of the city it can sue and be sued, but it is not an inference that, if sued, and a judgment CHAP. X] BRINKEEHOFF V. BOAKD OF EDUCATION 409 passes against it, an ordinary writ oi fieri facias can issue, under which its corporate property can be seized and sold. Nor is there any necessity for such writ. On a debt being ascertained by judgment against a city and a refusal to pay it, a mandamus can issue to compel payment, or to compel a levy of taxes sufficient to discharge the judgment," closing with the remark, " We decide this on principle." It may be collected, as the result of this examination, that, under an execution upon a judgment against a municipal corporation, the prop- erty of the corporation not devoted to public use, may be taken and sold to satisfy the judgment; that if there is no such property, the remedy is by mandamus, to compel the payment of the judgment out of any money or fimd under the corporate control, or to compel the raising of it by tax, when the corporation is clothed with the power to impose a tax; and if it should not be, that then the creditor of the municipal government is placed in the same condition as are the creditors of the State, or of the United States. Property which is exempt from seizure and sale tmder an execution, upon grounds of public necessity, must for the same reason be equally exempt from the operation of the lien law, unless it appears by the law itself, that property of this description was meant to be included. There is nothing in the lien law that would warrant this inference. A lien is given by the act for labor performed, or materials furnished in the building, altering, or repairing of any house or other building, upon the building and the lot of land upon which it stands, to the ex- tent of the right, title, and interest of the owner at the time when notice of the claim was filed and served. The object of the act was to give mechanics and material men a security for the ultimate enforce- ment of their claim, by making it, from the time that notice of it as provided is given, a hen or incumbrance upon the property benefited. Where the Ken thus attaches either party may bring the claim to a final determination, and if anything is ascertained to be due to the claimant, judgment is entered for the amoimt of it, which judgment may be satisfied by the sale of all the right, title, and interest, which the owner had to the property when the notice of the claim was filed and served. When judgment is recovered in a court of record, it is a lien upon the real estate of the defendant, from the time when the lien is docketed; and when recovered in courts not of record, it becomes a lien upon the filing of the judgment in the office of the county clerk. In these cases, it is enforced as a lien only from the time of the docketing of the judg- ment or the filing o^ the transcript; but the judgment obtained by foreclosure under the lien law may be enforced as a lien against the par- ticular property from the time of the filing and service of notice of the claim, and that constitutes the particular benefit which it was the design of the act to confer upon the laborer or material man, and is the advan- tage which it gives him, over ordinary creditors, as a security for the pay- ment of the judgment he may ultimately obtain. With this exception, 410 CASES ON MUNICIPAL OH PUBLIC COHPORATIONS [CHAP. X the judgment he obtains is, by the express language of the act, " to be enforced in all respects in the same manner as judgments rendered in all other civil actions for the payment of money." (Laws of N. Y., 1851, p. 955, § 8.) And if judgments recovered in other actions cannot be enforced against a certain kind of property, for the reason that it is exempt from seizure and sale, upon grounds of public necessity, neither can a judgment under the lien law, which is a mere foreclosure of a security obtained by the filing and service of notice of a claim. Cronk- right v. Thomscm, 1 E. D. Smith, 661; Noti's New York Lien Law, p. 63. And no such security can be obtained upon property which for reasons -of public necessity cannot be taken and sold to satisfy judgments ob- tained in ordinary civil actions. I think the fair construction of the lien law is, that the security con- templated by the law may be obtained upon the building upon which the labor was bestowed or the materials furnished, and upon the lot of land upon which the building stands, if the land and building could be sold to enforce a judgment in an ordinary civil action, but not other- wise. That we are not justified in holding that the legislature meant that this particular kind of creditor should have a lien upon public edifices and the right to sell them to satisfy his claim, unless the legislature has expressly said so. The reason which exempts such structures, upon the grounds of public necessity, applies as forcibly in this case, as in that of any other judgment creditor, and if all other judgment creditors are precluded from the exercise of such a right he niust be considered pre- cluded also, in the absence of any provision that would warrant us in holding that the legislature designed that his case should be an excep- tion to the operation of a general rule, having its foundation in public necessity. The erecting and maintaining of schoolhouses in this city for pubUc education, is imposed as a duty upon the city by statute. Their erec- tion, maintenance, and government are regulated by numerous statu- tory provisions. They are by law devoted to a public use, and therefore come within the operation of the rule above considered. Jvdgrnent affirmed. I dissent. G. C. Babeett, J. MAYOR, ETC., OF CITY OF MONROE v. JOHNSTON e< ofo. 106 La. 350. 1901 Blanchard, J. The J. G. Wagner Company, a judgment creditor of the city of Monroe, caused execution to issue, and under the writ the sheriff seized a tract of land containing eighty acres, belonging to CHAP. X] CITY OF MONROE V. JOHNSTON 411 the debtor, and also fourteen head of mules, two horses, eight wagons, and eight sets of harness; whereupon the city of Monroe sued out a writ of injunction to restrain the sale of the property. The allegation is made that the land contains a bed of gravel, and was bought by the city for the sole purpose of obtaining material to gravel and improve its streets; also that the mules, horses, harness, and wagons seized were acquired by the city for the sole purpose of hauling the gravel from the pit to the streets and distributing the same on them. It is further averred that the land and the other property mentioned have been used, siace the city's acquisition thereof, solely for the purposes named, and that by means thereof useful and valuable improvements have been made on the streets. It is represented that the expense of buying the property, as well as the care and maintenance of the mules and horses, was defrayed by the city out of a fxmd realized from the sale of an issue of $40,000 street improvement bonds put upon the market imder the authority of law. The contention of the plaintiff is that the property seized, both real and personal, is public property, acquired and held and exercised for the public use, and therefore is not subject to seizure and sale in satisfaction of an ordinary judgment against the city. The defense is that the property seized is neither essential nor necessary to the conduct of the affairs of the municipal corporation, and hence is liable to seizure for its debts. The judgment of the court a qua sustained plaintiff's contention, and defendant the J. G. Wagner Company prosecutes this appeal. RuUng: The proof appears to sustain the essential allegations of the plaintiff's petition. The streets of the city of Monroe are under the control and regulation of the city council. Their improvement is within the scope of the powers granted by the charter. It was there- fore competent for the council to take steps to improve them, and to this end to devise the ways and means therefor, and to determine the method and manner in which the work should be done. In this in- stance the council decided to gravel certain streets. It could have let the work by contract, or it could have purchased the gravel, and hired conveyances and teams for its delivery and distribution, or it could do as it did do, — piu-chase a gravd pit and an outfit of wagons and teams for hauling the gravel. Either method employed would have been in execution of a public purpose, and therefore legitimate. The land and the outfit needed for opening the gravel pit on it, for getting out the gravel, and for hauling and distributing it on the streets, is property, which, while not essential to the existence of the corpora- tion, is necessary to the useful and proper exercise of its functions, and to deprive the corporation of the same would be to hinder it in one of the functions contemplated by its charter, to wit, the care and improvement of the streets of the city. City of New Orleans v. Home Mut. Ins. Co., 23 La. Ann. 61. Such property, so acquired, dedicated and used, is not subject to seizure at the hands of the judg- 412 CASES ON MUNICIPAL OR PUBLIC CORPORATIONS [CHAP, X ment creditors of the city. Klein v. City of New Orleans, 99 U. S. 149; Meriwethfir v. Garrett, 102 U. S. 472, 518, 525. Whether or not property held as pubhc property is necessary for the public use is a political, rather than a ju(hcial, question. Pickett v. Brovm, 18 La. Ann. 562; Police Jury v. Foulhmize, 30 La. Ann. 67. Judgment affirmed. PETERKIN V. NEW ORLEANS 2 Woods {U. S. Cir. Ct.), 100. 1875 Heard on motion to dissolve attachment. The plaintiff, being the holder of certain bonds issued by the city of New Orleans in aid of the Opelousas Railroad and of the Jackson Railroad, and the bonds having become due and remaining unpaid, had reduced the same to judgment in this court. In pursuance, as it is claimed, of the original act which authorized the issue of the bonds, the city had levied a tax to pay the interest thereon, and a fund for this purpose, amounting to $105,000, had been deposited by the city in the Louisiana National Bank. It was deposited in the bank to the credit of the fund for the payment of the interest on the bonds, but was not sufficient to pay the interest on all the bonds. The plaintiff having, as stated, recovered a judgment both for the principal and interest due on his bonds, had attached this fund and served notice of garnishment upon the Louisiana 'National Bank. The motion was to dissolve this attachment. B. F. Jonas, City Attorney, for the motion. T. J. Semmes, contra. Woods, Circuit Judge. It is claimed in behalf of the city that the taxes and pubhc revenues of a municipal corporation cannot be seized under execution against it, and that the doctrine of the inviolabiUty of the public revenues by the creditor is maintained, although the cor- poration is in debt and has no means of payment but the taxes which it is authorized to collect. Dillon, Mun. Corp. § 64; Edgerton v. The Third Municipality, 1 La. An. 435; Hart v. Same, 6 id. 571. This, as a general rule, is conceded; but it is claimed that the circum- stances of this case make it an exception. 1. It is said that the city having deposited this money in a bank, the bank has thereby become the debtor of the city, and the fimd has lost its distinctive character as public revenue and become simply a debt due the city from the bank, and subject to garnishment by any creditor of the city. In support of this view the cases of Stetson v. Gurney, 17 La. 162, and Norris v. Henry, 26 La. An. 625, are cited, where it is held that money deposited in a bank by an agent in his own CHAP. X] PETEKKIN V. NEW ORLEANS 413 name cannot be identified, and becomes a debt due the depositor from the bank, and is not a debt due the principal. b This argument applies to all the fimds of the city raised by taxation for all purposes. So that if we give this theory full force, it follows that whenever a municipal corporation, either from necessity or as a matter of convenience, deposits its revenues in a bank to be drawn upon for public uses, no matter to what purposes appropriated, they are liable to be seized by its creditors ; that funds for feeding prisoners, sustaining hos- pitals, lighting the streets, keeping a supply of water for the extinguish- ment of fires, paying the pohce, etc., are all subject to be appropriated by any enterprising creditor who chooses to make the necessary effort. If funds raised for the payment of interest can be seized because the city has deposited them in a bank, it follows that funds raised for any of the other purposes named may also be seized. I do not think the manner or place in which the public revenues of a mimicipal corporation are kept divests them of their public, character, or subjects them to be diverted from the purposes for which, and for which only, the law authorized them to be collected. In my judgment, a municipal corporation stands in a different plight from an individual in such a case. The officers of a city are charged with the execution of a great pubhc trust, on which depend the comfort, safety, lives, and prop- erty of the inhabitants, and cannot, by the manner in which they keep the public revenues, subject them to seizure by the public creditors, and thus defeat the very purposes for which the mimicipal body was created. The fact, therefore, that the city made the Louisiana National Bank the depository of its public revenues, does not subject them to seizure and garnishment. 2. It is claimed that the law authorizing the city to issue the bonds held by plaintiff, only authorized the city to levy a tax to pay the in- terest thereon until their maturity; that the fund attached was for in- terest on the bonds after matiuity, and is therefore property of the city which is not applicable by law to any specified purpose, and is therefore subject to seizure by any creditor who has a judgment against the city. But the law does not so read. It provides that " a special tax on real estate and slaves shall be levied in January of each year sufficient to pay the annual interest on said bonds, . . . provided that no levy of a tax for the payment of interest on said bonds shall be made after the payment of dividends of 6 per cent per annum on the stock of the com- pany held by the city." Under this act, the authority to levy a tax for the payment of the interest upon the bonds is just as clear, and the duty just as imperative, after the maturity of the bonds as before, unless the stock for which the bonds were issued pays dividends of 6 per cent, which is not and never has been the case. If the city refused to levy a tax for interest after the maturity of the bonds, I think a bondholder who had reduced his bonds to judgment might have the writ of man- damus to compel the city to levy and collect the tax. The collection 414 CASKS ON MUNICIPAL OB PUBLIC CORPOHATIONS [CHAP. X of the money seized, was, therefore, authorized by law. It was collected for a special purpose, and it cannot be diverted from that purpose by the vigilance and enterprise of the city's creditors. The officers of the city could be compelled by mandamm at the instance of creditors having judgments on their bonds, to apply the funds so raised to the payment of interest pro rata on all the bonds of this class. It therefore follows that no single creditor has the right to seize the whole fund for his sole"benefit and apply it to the payment of the prin- cipal as well as the interest of his debt. This fund must be applied to the purpose for which the law author- izes i^s collection, and no other. The attachment must therefore be dissolved. GORDON t. THORP et ux* 53 it nevertheless may justly be said to be private property, as being such property as is exempt from being taken or applied to any other public use by the State, or by authority of the State, without compensation being made. It was said in the course of the argument of the present case that the corporation of Wilmington owned a lot within the limits of the city, called the " sand lot." Now, if the legislature of this State had passed an act authorizing the Baltimore and Ohio Railroad Company to take any portion of this lot for the purpose of constructing their road, now in the course of construction through that city, without compensation, there could be no doubt that such an act would be unconstitutional as against the spirit of the Constitution, which declares that private prop- erty shall not be taken for pubhc use without compensation being made. The lot would be considered private as belonging exclusively to the cor- poration, although the use for which it is held by the corporation is pubhc, for the benefit of all the inhabitants of the city. And the title in fact is in all the corporators, that is, the inhabitants of the city. Had the Baltimore and Ohio Railroad Company attempted to construct their road across this lot there can be no doubt that the city would have been entitled to an injunction restraining them from so doing. While the municipahty of Wilmington exists as a corporation, endowed with the capacity of purchasing and holding property, it has a right as against every other corporation or person to the use and enjoyment of its property as freely and fully as a private person can hold and enjoy similar property; but city corporations are emanations of the supreme law-making power of the State, and they are established for the more convenient government of the people within their limits. In cities, for reasons partly technical and partly founded upon motives of conven- ience, the title of certain property is vested in the corporate body. It is not thereby shielded from the control to a certain extent of the legislature as the supreme law-making power of the State. While the corporation exists by authority of the State, authorized to purchase and hold property for the inhabitants of the city to be paid for by the taxes levied upon the inhabitants, it would not, in our opinion, be competent for the State to take away such property and give it to other corpora- tions or persons. In case of condemnation for pubUc purposes, as, for CHAP. Xl] COTLE V. ATTORNEY GENERAL BX Tel. McINTIRE 467 instance, to enable the Baltimore and Ohio Railroad Company to con- struct a road across the lot referred to, it would not, we suppose, be competent for the legislature to direct that the condemnation money should be given to the corporation of the city of New Castle, or should be applied to any municipal purpose of that city. But suppose the sand lot owned by the city of Wilmington should become worthless to the city or not adapted to any municipal use and valuable only for sale to private persons for building purposes. Could it be doubted that the legislature might direct it to be sold and the proceeds be devoted to some municipal or public purpose within the city of Wilmington? The right to acquire the property by means of taxation was conferred upon the city that the property so acquired might be useful to the city, and we can imagine no j limit to the control of the State over property so acquired consistent with the preservation of the property or of its proceeds for the uses and pur- poses for which it was acquired and for the benefit of those for whom it was acquired. The constituting a board of commissioners for the management of the property of a municipal corporation for the benefit of the corpora- tors is no diversion of the property from the purposes of its acquisition. No title is thereby divested, and no property is wrongfully taken. In the case of the water-works of the city of Wilmington, these works were not taken away from the city by the appointment of a board of commis- sioners to manage them; nor was their use diverted from its original purpose. Whether managed by the city council or by the board of commissioners appointed by the authority of the legislature, the uses and purposes of the water-works — the supply of water to the corpora- tors or inhabitants of the city — will be the same; and while these purposes and objects continue the same we can see no violation by the act of the legislature of aiiy equitable right of which the city may com- plain. . . . We do not suppose that, if the powers conferred upon the board of water commissioners by the act of the legislature creating it had by that act been conferred on the council of Wilmington, any serious objection could or would have been made to the constitutionality of the act. If not, the controversy would be narrowed down to very small dimensions indeed. Has the city council of Wilmington any vested or constitutional rights as against the State to manage or control the water-works of the city of Wilmington, or to appoint agents or managers to control them? They are the mere creatures of the legislature, which can in a moment destroy, as in a moment it created them. The legislature can divest the council of any and every power and authority it possesses. It can direct that those powers should be exercised by any other department or agency of the city government, and it could even direct that the func- tions now performed by the city council should hereafter be performed by a like number of any other corporators of the city. ... We have no doubt that, should occasion arise for the exercise of the 468 CASES ON MUNICIPAL OE PUBLIC COEPOKATIONS [CHAP. XI power, the legislature of the State would have the right to declare that the city of Wilmington should have and maintain not only suitable water-works for the supply of the city with good and wholesome water, but should have and maintain a proper fire department and proper gas- works, for the protection of the city from fire and the proper lighting of the city, for the convenience, safety, and comfort of the inhabitants. They might authorize the levying of taxes upon the inhabitants of the city for the defraying of the expenses necessary for the accomplishment of these purposes, and they might appoint commissioners to do what- ever was necessary to be done to eilectuate the act. . . . We deem it not improper, however, to say that in our opinion the affairs of a municipal corporation should generally be administered in accordance with the will of its inhabitants, who, it is reasonable to sup- pose, are better acquainted with what will conduce to their comfort, hap- piness, and prosperity than others possibly can be. Whether this act should have been passed by the legislature was a question to be deter- mined solely by the legislature itself. We can determine only as to the constitutionaUty of what the legislature has done, and, in our opinion, the city of Wilmington, being a municipal corporation, all its powers imder its charter are subordinate to the powers of the legislature. The legislature having the power to repeal its existence, necessarily has the power to alter, amend, or abolish any of the agencies through which the powers of the corporation are exercised, or to change them or to substi- tute others in their place. Although the water-works of the city may have been, prior to the passage of the act to establish a board of water commissioners, under the control and management of the city council in any manner whatever, which may have been exercised through any agencies whatever, it was competent for the legislature to alter and change that control, management, and agency as they might deem proper. Such alteration of control, management, and agency, provided the same was not a diversion of the object and purposes for which the water-works were established, would aJEfect no vested right of the city or the corporation as against the State. The rights of the corporators to the property being secured to them, and the property of the corporators being preserved for its original pur- poses, if stich be the case, and we see nothing in the act establishing a board of water commissioners to the contrary, this court is not at liberty to declare the act itself unconstitutional. The judgment below is therefore affirmed. CHAP. Xl] BEOWN et ol. V. CITY OF GALVESTON 469 BROWN et d. V. CITY OF GALVESTON* 97 Texas, 1. 1903 Action by citizens of Galveston, who own vehicles kept for pubhc or private use or for hire, to have the city enjomed from enforcing certain ordinances imposing license dues or taxes upon owners of such vehicles. From the plaintiff's allegations it appears that, by an act of the legis- lature which took effect July 8, 1901, the previous charters of Galves- ton were repealed and a new charter of incorporation granted. This charter vests the governmental power of the city in a board of five com- missioners, of whom three including the president are to be appointed by the Governor and two are to be elected by the voters. Each com- missioner must be a citizen of the United States and for five years next preceding his appointment or election a resident of the city. Each is to hold office for two years and until his successor is qualified. This board is to represent the city in all matters in which the former mayor and aldermen had represented it. The act transfers to the new city all the water-works, sewerage plants, fire-engines, fire alarms, and all other property of the old city, and con- fers general power to pass ordinances, to levy and collect ad valorem, occupation and license taxes, etc. Jos. B. and Chas. J. Stubbs, for appellants. J. Z. H: Scott, for appellee. Beown, J. . . . The following questions are submitted to this court by the Court of Civil Appeals: " (1) Did the city of Galveston have authority, under the act of the legislature approved April 18, 1901, granting it a new charter and re- pealing all pre-existing charters, to enact and enforce the ordinances by virtue of which the right to collect the hcense tax was claimed? "(2) Were the charter and ordinances authorizing the collection of the tax in conflict with the provisions of the Constitution of this State on taxation? " (3) Did the Court below err in sustaining the motion to dissolve the injunction and in dismissing the petition?" The first question submitted to us involves the constitutionality of those sections and provisions of the charter of the city of Galveston which empower the Governor of the State to appoint three members of the governing board of commissioners for that city, and of those which invest that commission so constituted with the powers of mayor and board of aldermen. This question arose in the case of Ex parte Lewis, which was decided by the Court of Criminal Appeals of this State, re- ported in 73 S. W. 811. The majority opinion was delivered by the Honorable John N. Henderson, justice, and concurred in by the Hon- orable W. L. Davidson, presiding justice, of that court. Judge M. M. Brooks dissented from the opinion of the majority. In that case the 470 CASES ON MUNICIPAL OK PUBLIC COKPOKATIONS [CHAP. XI majority held that the law which authorized the governor to make the appointment of the three commissioners was contrary to the Constitu- tion of the State of Texas. The majority and dissenting opinion each show extensive research into the authorities, and contain able and elaborate arguments and discussion of the principles involved. Recog- nizing the equal authority and dignity of that court, we approach the investigation of the question with much hesitancy, because of the deli- cacy of the duty to be performed. We shall accord to the opinion of the majority in that case equal weight as an authority with that of any other court of last resort, and, because it is a court of co-ordinate powers with this, acting under authority derived from the same Constitution, we feel constrained to conform our opinion to that, if we can properly do so in the discharge of our duty. . . . It is asserted by the appellant that the people of Galveston had the " inherent right" to select their own municipal officers and that the legis- lature had no power to authorize the governor of the State to appoint municipal officers for that city. This proposition seems to be sup- ported by the majority opinion in the case of Ex parte Lewis, 73 S. W. 811, from which we quote. After citing a number of cases, the Court of Criminal Appeals said: "But the reasoning in all of the cases — those referred to as well as all others — to which our attention has been called, except State of Nevada v. Swift, 11 Nev. 134, strongly supports the proposition that, even without some express constitutional provi- sion, neither the legislature nor the governor has the power to appoint the permanent officers of a mtinicipality. In the cases cited it occurs to us that the real effect of the decisions was to establish the doctrine that in the absence of a grant of authority in the Constitution authorizing the appointment of such local officers by the legislature or the governor, this power was denied by implication arising from the history and traditions which time out of mind had conferred local self-government on munici- palities." That honorable court drew its conclusion from the following cases: People v. Hurlhut, 24 Mich. 44, 9 Am. Rep. 103; Allor v. Wayne Co., Auditors, 43 Mich. 76; Davock v. Moore (Mich.), 63 N. W. 424, 28 L. R. A. 783; Geake v. Fox, 63 N. E. 19; State v. Benny, 118 Ind. 382. People V. Hurlbut is the cornerstone upon which this theory rests, and upon which all of the other decisions cited have been constructed. In that case three great jurists (Christiancy, Campbell, and Cooley) delivered separate opinions, and in the course of the discussion of the question which was before them each referred to the history and tra- ditions of that State, in reference to municipal corporations, as throw- ing light upon and aiding in the construction of this provision of the constitution of that State. "Judicial officers of cities and villages shall be elected, and all other officers shall be elected or appointed at such time and in such manner as the legislature shall direct." The question before the cotut was whether the legislature had the power to appoint officers for a city or village, or should it have provided for the election by CHAP. Xl] BEOWN et ol. V. CITY OF GALVESTON 471 the voters of such city or village, or for appointment of such officers by the municipal authorities. In discussing the question, the three eminent Judges went elaborately into the history of municipal corporations in the State of Michigan, avowedly for the purpose of showing that the convention intended to preserve the rights, which had previously ex- isted under their charters, of the people of cities and villages to elect or appoint their own local officers, and they used the facts to show that the language of the Constitution was intended to express that the legis- lature should provide for the appointments or election by the munici- pality, from which they implied a prohibition against the legislature making appointments of water and light commissioners for the city of Detroit. Each of the distinguished jurists was careful to state the ground upon which his opinion rested, that is, upon the true intent and mean- ing of the Constitution, in proof of which we quote from the opinion of Judge Cooley, as follows : " In view of these historical facts and of these general principles, the question recurs whether om- State Constitution can be so construed as to confer upon the legislature the power to ap- point, for municipalities, the officers who are to manage the property interests and rights in which their own people alone are concerned." The court in that case held that the Constitution forbade the legislature to enact such a law, except that in the organization of a city or village it might make provisional appointments of officers to hold until the people could elect those which were provided by the charter. A miscon- ception of those opinions, and the purposes for which those able jurists referred to the history of corporations in that State, has led some courts into the use of very extravagant and sensational language upon the sub- ject of " the inherent right " of a people to control their own local affairs when organized into municipal corporations. An examination of cases cited fails to show a suigle authoritative decision which upholds the doc- trine announced by the Court of Criminal Appeals in Ex parte Lewis. In every case that we have been able to find, no matter what the judge may have said, the judgment of the court was finally rested upon some provision of the Constitution of that State, except the case of State v. Moores, 55 Neb. 480, which has been overruled by the Supreme Court of that State. We have examined many authorities upon this question, and find but one case which directly negatives the proposition that is asserted in the opinion of the Court of Criminal Appeals, but all of the cases cited by us sustain appointments of municipal officers made by the governor. The case of ReMl v. Moores, 88 N. W. 243, 55 L. R. A. 740, decided by the Supreme Court of Nebraska, directly overruled Sfofe v. Moores, be- fore cited. Of the opinion deUvered in the former case, the Supreme Court of Nebraska says: "The majority opinion, to our minds, in- troduces a new principle into our system of jurisprudence, and one pregnant with mischievous consequences. We have been taught to re- gard the State and Federal constitutions as the sole test by which the 472 CASES ON MUNICIPAL OE PUBLIC COEPOEATIONS [CHAP. XI validity of acts of the legislature are to be determined. If the majority opinion in that case is to stand as the law of the State, then in addi- tion to such test there is another — an illusive something, elastic and uncertain as an unwritten constitution, which may be invoked to defeat the legislative will. We cannot beUeve that such a principle should re- ceive the final sanction of this court." From the many authorities which support the position of the Nebraska court, we cite : Newport v.. Horton, 22 R. I. 196; Americus v. Perry, 114 Ga. 871; Harris v. WrigU, 121 N. C. 172; Philadelphia v. Fox, 64 Pa. 169; State v. Hunter, 38 Kan. 578; Luehrman v. Taxing District, 2 Lea, 425; People v. Draper, 15 N. Y. 532; Nevada v. Sioift, 11 Nev. 128. In our own State the doctrine is well settled that a municipal corpora- tion can exist only by and through an act of the legislature of the State, and that it has no power not granted by the charter, and can have no officer not provided for by law. Blessing v. Galveston, 42 Tex. 641; Pye v. Peterson, 45 Tex. 312; Vosburg v. McGrary, 77 Tex. 568. But the doctrine of vested rights and powers, derived from "history and traditions," asserts a higher law than the Constitution; for if, in the ab- sence of a prohibition, the legislature cannot enact a law in contraven- tion of "history and traditions," the convention could not by express provision have authorized it to be done. The legislature of Texas may exercise any power that could be exercised by a constitutional convention except wherein the Constitution contains a prohibition, expressed or implied. According to the theory advocated, an unorganized com- munity has rights which cannot be enjoyed, and powers which cannot be used, until those rights are conferred and the powers are granted by the State in the form of a charter. Yet the dormant rights and powers are protected by "history and traditions," which are thus made supe- rior to the creative power. In the case of State v. McAllister, 88 Tex. 284, section 3 of article 6 of the Constitution of this State was under examination, but with a view to determine another question; and in the discussion of that question the Court referred to the fact that, before the present Constitution was adopted, corporations existed with certain forms of government, which was considered by the court in reaching the conclusion that the con- vention did not intend to overturn the existing municipal corporations in the State; and, in view of the facts, the language of that section of the constitution was construed so as to harmonize with conditions that ex- isted at the time of its adoption. It was not said nor intimated that municipal corporations existed in this State before the organization of the State government or the government of the Republic. In fact, there were no such municipalities within the territory constituting this State, and we have no such traditions nor history coimected with the municipal corporations to influence the court in determining the mean- ing of any provision of the Constitution upon that subject. The doctrine contended for is antagonistic to the fundamental prin- CHAP. Xl] BKOWN et al. V. CITY OF GALVESTON 473 ciples of our State government, as we understand them. . . . The doctrine is in conflict with the well-settled principle of constitutional construction that the power of the legislature can be restrained only by a prohibition expressed or implied from some provision or provisions of the Constitution itself. Lytle v. Hdff & Bro. before cited. Harris Co. V. Stewart, 91 Tex. 143. The doctrine rests upon a basis, which is op- posed to the well-settled rule of construction, that a law which is passed by the legislature of a State cannot be set aside by the courts because it is in conflict with the principles of natural justice, nor because of its conflict with the spirit of the Constitution. Cooliy, Const. Idm., 205. That author says: "Nor are the courts at Uberty to declare an act void because in their opinion it is opposed to a spirit supposed to pervade the constitution, but not expressed in words." It contradicts the truth of the history of municipal corporations in Texas, for it is a matter of com- mon knowledge that charters are formulated by the people of the towns presented by their representatives to the legislature, and, in case of opposition, committees attend upon the legislature to secure the wish of the majority. The city of Galveston had two representatives in the House and one in the Senate that enacted this law, and the bUl was in- troduced in the House by one of her representatives, and supported by all. To overthrow the charter of that city, upon the assumption of a "history and tradition " which have no real existence, would in fact deny to the people of Galveston the right to govern their affairs in their own way, arid thereby to substitute a form of municipal govern- ment dictated by the courts. In fact, this theory is out of harmony with the practices of republican State governments in America, and opens up a broad field in which to search for grounds to declare laws of a legis- lature void, without the shadow of authority in the well-established powers of the courts under our Constitution. As said by the court in RedeU v. Moores, before cited, it is " an illusive something, elastic and uncertain as an unwritten constitution, which may be invoked to defeat the legislative will." "The doctrine " furnishes no standard or rule by which to determine the validity of any law framed by the legislature, but leaves each judge to try it according to his own judgment of what constitutes the "history and traditions " of the State, and what rights have been vested m the people by reason of such "history and tradi- tions." To this theory we cannot give ovu- consent, but must adhere to the well-established rules of construction which confine the court to the Constitution as the standard by which it is to determine the validity of legislative enactments. ... To the first and second questions we answer that the city of Galveston had authority under its charter to enact and enforce the ordinances which are brought in question in this action, and that the said ordi- nances are not in conflict with the provisions of the constitution of this State on taxation. To the third question we answer that the court did not err in sustaining the motion to dissolve the injunction and dismissmg the petition. 474 CASES ON MUNICIPAL OE PUBLIC COEPOKATIONS [cHAP. XI TOWNSHIP OF BERNARDS v. ALLEN et d* SAME V. POST et al. 61 N. J. L. 228. 1897 Writ of ereoe sued out by the township to review a judgment of the Supreme Court, rendered on certiorari brought by taxpayers to review & levy of taxes by the commissioners of taxation of the township. The commissioners were appointed by the governor under an act passed in 1884 (Gen. Stat., p. 3411). That act provides that, if the local authorities shall neglect or fail to levy taxes for the purposes specified in section 5 of the act, or if there be a vacancy in the local boards or officers, or if the latter have not commenced the assessment or valuation of property, or if the taxes have not been levied at the time required by law, "it shall be the duty of the governor, upon notice to the local authorities, to appoint and commission three free- holders, who shall be residents of such city, town, or municipality, to be known as commissioners of taxation," whose duty it shall be to assess and levy the taxes specified in section 5, and to discharge all other duties therein required. The fifth section enacts that the com- missioners " shall have power to levy taxes for such sums as they shall deem expedient for the following and no other purposes: 1. For the support of public schools and the repair of school houses. 2. For pro- tecting prctperty within such city, town, or municipality from fire. 3. For the protection and maintenance of the public health within such city, town, or municipality. 4. For the maintenance and support of the poor. 5. For the support and maintenance of a police force •within such city, town, or municipality. 6. For keeping the highways and streets within the limits of such city, town, or municipality in a safe condition for public use. 7. For the expenses of assessing and col- lecting the taxes levied under this act, and in addition thereto a sum to meet deficiencies not exceeding ten per cent of the sums required to be raised for the above-stated purposes." At the annual town meeting of the township, duly held in March, 1893, $1,200 was voted to be raised for support of the poor, $4,000 for roads, and $500 for removal of snow. On application to the governor, pursuant to the provisions of the above statute, he appointed these commissioners of taxation, who made a new levy as follows: $2,000 for the protection and maintenance of public health, $2,300 for the main- tenance and the support of the poor, $324 for the support and main- tenance of a police force, $14,000 for keeping the highways and streets in a safe condition for public use, and $1,700 for the expense of assess- ing and collecting such taxes and to meet deficiencies, in all $21,124, instead of $5,700, the total amount voted by the town meeting. The appointment of the commissioners appears to have been made on the CHAP. Xl] TOWNSHIP OF BERNARDS V. ALLEN Ct ol. 475 two grounds that the township authorities — that is, the town meeting of the township — had not made adequate provision for taxation for the purposes mentioned in the fifth section of the act, and that there was also a vacancy in the office of assessor. On the hearing of the certiorari the Supreme Court exscinded so much of the levy of the commissioners as exceeded the amounts appropriated by the town meeting for supporting the poor and for keep- ing highways in a safe condition, on the ground that the town meet- ing had performed its duty in relation to the poor and roads of the township, and consequently the commissioners, under the statute re- ferred to, had no power to levy taxes for those purposes. The coiu-t also excluded the levy of the commissioners for the support of a poHce force, for the reason that no poUce force had been established in the township. The court allowed the levy of the commissioners for the protection of public health to stand, on the ground that it was the duty of the voters of the township, at the town meeting, to provide for raising funds for these purposes. The levy of the commissioners to meet the expense of assessing and collecting the taxes imposed by them and to meet deficiencies was reduced to the sum of $200. For the plaintiffs in error, Richard V. Lindahury. For the defendants in error, Francis E. Marsh and Frank B. Allen. Depue, J. . . . On the argument of the writ of error, this court of its own motion directed that the case should be re-argued on the con- stitutionality of the Act of 1884, and the case was accordingly re- argued on constitutional groimds. [The court reviewed the history of taxation in England and early America to show that the right to levy taxes is appropriate only to the popular representatives in the legislature.] As already observed, the right of taxation is vested in the people; but legislation is necessary to exercise the right of taxation. Under our form of government this legislative power is lodged, in the first in- stance, in the legislature of the State. The legislature, in the exercise of its sovereign power, may confer upon the minor political subdivi- sions of the State (which are merely instrumentalities for the better administration of the government in matters of local concern), power to impose and levy local rates, taxes and assessments to provide the revenue by which municipal expenses are borne and debts and liabili- ties paid, on the. principle that for local purposes the local authorities are the representatives of the people. The powers conferred on boards of chosen freeholders in the counties, and upon other political sub- divisions, such as cities, towns, townships, etc., are instances in which this legislative power has been conferred upon minor subdivisions of the State. The townships, from an early period, were accustomed to regulate their Ipcal affairs and provide means for local purposes by a vote of the inhabitants assembled in town meeting, probably, in the first instance, without statutory authority. [The court then reviewed 476 CASES ON MUNICIPAL OR PUBLIC CORPORATIONS [CHAP. XT historically the statutes which conferred the power of taxation upon the townships.] The legislation just referred to constituted the qualified voters of the township assembled in town meeting the legislative body by which the affairs of the township were administered, and invested the town meeting with power to appropriate and raise moneys by taxation for local purposes. Except as the legislature of the State may confer upon political divisions powers to legislate and to provide revenue for defraying the expenses of the local governments, it has no power to delegate the power of taxation to ministerial officers or to another department of government. Cooley, Tax., p. 47; 25 Am. & Eng. Ency. L., 79, 186. It may provide for the appointment of officers and other persons to assess and collect taxes, but the essential power of taxation, which is the power to levy a tax, is incapable of being delegated by the legislature. Every system of taxation consists of two parts — one the levying of taxes, the imposition of taxes on persons or property; the other the assessment and collection of taxes. The first is a legislative func- tion controlled by constitutional prescriptions; the other, the assess- ment and collection of taxes, is mere machinery by which the legislative purpose is effectuated. Whether taxes shall be assessed and col- lected by officers elected by the people, called assessors and collectors, or by officers holding office under some other authority, is left to legis- lative discretion. Tnistees of Public Schools v. Trenton, 3 Stew. Eq. 667, 678. " The legislature must prescribe the rulfe under which taxa- tion shall be laid, and originate the authority under which taxing officers assess and collect the taxes; it need not prescribe all the details or fix with precision the sum to be raised. If the rule is prescribed which, in its administration, works out the result, that is sufficient; but to refer the making of the rule to another authority would be in excess of legislative power. To leave to a State officer or board the power to determine whether a tax should be laid for the current year, or^at what rate, or upon what property, prescribes no rule and origi- nates no authority; it merely attempts to empower some other tribunal to prescribe a rule and set in motion the tax machinery. This is clearly incompetent." Cooley, Tax., p. 50. The legislature, having prescribed a rule of taxation, may entrust the assessment and collection of taxes, in conformity with prescribed rules, to officers appointed by other authority. . . . But the essential power of taxation, the power to levy a tax, cannot be delegated by the legislature. In State v. Sickels, 4 Zab. 125, the Supreme Court held that a resolution of a town meeting to raise for general township ex- penses as much as the township committee should direct, "ways and means left to the committee," was illegal as a delegation of the taxing power which the town meeting cotdd not delegate or transfer to the township committee or any other officer. In State v. Rosier, 9 Vroom, CHAP. Xl] TOWNSHIP OF BERNARDS V. ALLEN et al. 477 308, it was decided that a vote of the town meeting "for notes and bonds to be left to the town committee" was illegal. It appeared in that case that there were outstanding notes and bonds made by the township. The court held that if the vote of the town meeting had authorized the raising of money to pay such notes, leaving the calcula- tion of the amount to the committee, as the amount ordered to be raised could be made certain by mere computation, the action of the town meeting would have been legal, but that a resolution to leave the amount to be raised in the discretion of the town committee was unauthorized. In Munday v. Rahway, 14 Vroom, 339, 347, an act by which the court was required to determine what rate of taxation could be imposed on a corporation without injury to the interests of its cred- itors, was held to be invalid, on the ground that it conferred upon the courts a purely legislative function. These decisions ai;e precedents in our own coiuits, aflBrming the want of power in the legislative body in which the power of taxation is vested, to delegate the authority to others to determine in its judgment or discretion the amount to be raised by taxation. . . . This act does not purport in any sense to confer on local municipal bodies powers of taxation. Its legal effect is to delegate the powers mentioned in the act to three persons appointed by the governor. In making this delegation the legislature prescribed no rule by which the taxation should be laid. The power conferred upon the commissioners was in express words the "power to levy taxes," with no prescription or limitation, except that the taxes levied for any one year for all pur- poses should not exceed one and one-quarter per cent, and commits to the judgment and discretion of the commissioners the right to deter- mine whether taxes for the purposes mentioned should be laid, and at what rate and upon what property, as they might deem expedient. Plainly the scheme of taxation devised by tiiis act is a delegation of the power of taxation. A decision which would sustain this legislative action would antagonize fundamental principles of constitutional law and in effect overrule State v. Sickels, State v. Koster, and Munday v. Rahway, above cited. In this respect the act is imconstitutional. Some of the sections provide for the performance of mere muiisterial duties in the assessment of taxes — duties which the legislature, having perfected a scheme of taxation, may delegate to other persons. Whether these sections can be separated from the main provisions of the act, and sustained as in themselves an exercise of competent legislative authority within the doctrine laid down by this court in Johnson v. State, 30 Vroom, 535, need not be decided in this case. The writ of certiorari was allowed on condition that taxes assessed in compliance with the vote of the town meeting should first be paid, and the same were paid, and persons assessed for such taxes have not taken out writs of error, and no reason appears on this record which would present that question for decision. The result is that the judgment of the 478 CASES ON MUNICIPAL OB PUBLIC CORPORATIONS [CHAP. XI Supreme Court, in so far as it sustains the assessment of taxes voted at the town meeting, should be affirmed, and with respect to the assess- ment of taxes beyond the amount so voted it should be reversed. [For affirmance there were four judges; for reversal, and disposition accord- ing to the opinion, there were eleven.] ' 4, Property and Debts as Affected by a Transfer of Territory LARAMIE COUNTY v. ALBANY COUNTY 92 U. S. 307. 1875 Appeal from the Supreme Court of the Territory of Wyoming. Mr. Justice Clifford. . . . Sufficient appears to show that the complainant county was first organized under the act of the 3d of January, 1868, passed by the legislature of the Territory of Dakota, which repealed the prior act to create and establish that county. When organized, the county was still a part of the territory, and embraced within its territorial limits all the territory now comprising the coun- ties of Laramie, Albany and Carbon, in the territory of Wyoming, — an area of three and one-half degrees from east to west, and four degrees from north to south. Very heavy expenses, it seems, were incurred by the county during that year and prior thereto, greatly in excess of their current means, as more fully explained in the bill of complaint, which increased the indebtedness to the sum of 128,000. Other liabilities, it is alleged, were also incurred by the authorities of the county during that period, which augmented their indebtedness to the sum of $40,000 in the aggregate. Pending these embarrassments, the charge is, that the legislature of the territory passed two acts on the same day, — to wit, Dec. 16, 1868, — creating the counties of Albany and Carbon out of the western portion of the territory of the complainant county, reducing the area of that county more than two-thirds; that, by the said acts creating said new counties, fully two-thirds of the wealth and taxable property previpusly existing in the old county were withdrawn from its juris- diction, and its Umits were reduced to less than one-third of its former size, without any provision being made in either of said acts that the new counties, or either of them, should assume any proportion of the debt and liabilities which had been incurred for the welfare of the whole before these acts were passed. 1 See State v. Mayor, etc. of Des Moines, supra, p. 21, and oases cited. CHAP. Xl] LARAMIE COUNTY V. ALBANY COUNTY 479 Payment of the outstanding debt having been made by the com- plainant county, the present suit was instituted in her behalf to compel the new counties to contribute their just proportion towards such in- debtedness. Attempt is made to show that an equitable cause of action exists in the case by referring to the several improvements made in that part of the territory included in the new counties before they were incorporated, and by referring to the great value of the property withdrawn from taxation in the old county, and included within the limits of the newly-created counties. Process was served, and the respondents appeared and filed separate demurrers to the bill of complaint. Hearing was had in the District Coittt of the territory, where the suit was commenced; and the court entered a decree sustaining the demurrers, and dismissing the bill of complaint. Immediate appeal was taken by the complainant to the Supreme Court of the Territory, where, the parties having been again heard, the Supreme Court entered a decree affirming the decree of the District Court, and the present appeal is prosecuted by the complainant. Two errors are assigned, as follows: (1.) That the Supreme Court erred in affirming the decree of the District Court sustaining the de- murrers of the respondents to the bill of complaint. (2.) That the Supreme Court erred in rendering judgment for the respondents. . . . Sixty-five years before the decree under review was rendered, a case was presented to the Supreme Court of Massachusetts, sitting in Maine, which involved the same priaciple as that which arises in the case before the court. Learned coimsel were employed on both sides, and Parsons was Chief Justice of the coiu-t, and delivered the opinion. First he adverted to the rights and privileges, obligations and duties, of a town, and then proceeded to say, "If a part of its territory and inhabitants are separated from it by annexation to another, or by the erection of a new corporation, the former corporation still retains all its property, powers, rights, and privileges, and remains subject to all its obUgations- and duties, unless some new provision should be made by the act au- thorizing the separation." Windham v. Portland, 4 Mass. 389. Decisions to the same effect have been made since that time in nearly all the States of the Union where such municipal subdivisions are known, until the reported cases have become quite too numerous for citation. Nor are such citations necessary, as they are all one way, showing that the principle in this country is one of universal applica- tion. Concede its correctness, and it follows that the old town, unless the legislatiire otherwise provides, continues to be seized of all its lands held in a proprietary right, continues to be the sole owner of all its personal property, is entitled to all its rights of action, is bound by all its contracts, and is subject to all the duties and obligations it owed before the act was passed effecting the separation. Suppose that is so as applied to towns: still it is suggested that the same rule ought not to be applied to counties; but it is so obvious that 480 CASES ON MUNICIPAL OE PUBLIC COKPOKATIONS [CHAP. XI the suggestion is without merit, that it seems uimecessary to give it any extended examination. County of Richland v. County of Lawrence, 12 III. 8. Public duties are required of counties as well as of towns, as a part of the machinery of the State; and, in order that they may be able to perform those duties they are vested with certain corporate powers; but their functions are wholly of a pubUc nature, and they are at all times as much subject to the will of the legislature as incorporated towns, as appears by the best text-writers upon the subject and the great weight of judicial authority. Institutions of the kind, whether called counties or towns, are the auxiliaries of the State in the important business of municipal rulej and cannot have the least pretension to sustain -their privileges or their existence upon anything like a contract between them and the legis- lature of the State, because there is not and cannot be any reciprocity of stipulation, and their objects and duties are utterly incompatible with everything of the nature of compact. Instead of that, the con- stant practice is to divide large counties and towns, and to consolidate small ones, to meet the wishes of the residents, or to promote the pubKc interests, as understood by those who control the action of the legis- lature. Opposition is sometimes manifested; but it is everywhere acknowledged that the legislature possesses the power to divide counties and towns at its pleasure, and to apportion the common property and the common burdens in such manner as to them may seem reasonable and equitable. School Society v. School Society, 14 Conn. 469; Bridge Co. V. East Hartford, 16 id. 172; Hampshire v. Franklin, 16 Mass. 76; North Hempstead v. Hempstead, 2 Wend. 109; Montpelier v. East Mont- pelier, 29 Vt. 20; SUl v. Coming, 15 N. Y. 197; People v. Draper, id. 549; Waring v. Mayor, 24 Ala. 701; Mayor v. The State, 15 Md. 376; Ashby V. Wellington, 8 Pick. 524; Baptist Society v. Candia, 2 N. H. 20; Denton v. Jackson, 2 Johns. Ch. 320. Political subdivisions of the kind are always subject to the general laws of the State; and the Supreme Court of Connecticut decided that the legislature of the State have immemorially exercised the power of dividing towns at their pleasure, and upon such division to apportion the common property and the common burdens as to them shall seem reasonable and equitable. Granby v. Thurston, 23 Conn. 419; Yar- mouth V. Shillings, 45 Me. 142; Langworth v. Dubuque, 16 Iowa, 273; Justices' Opinion, 6 Cush. 577. Such corporations are the mere creatures of the legislative will; and, inasmuch as all their powers are derived from that source, it follows that those powers may be enlarged, modified, or diminished at any time, with- out their consent, or even without notice. They are but subdivisions of the State, deriving even their existence from the legislature. Their officers are nothing more than local agents of the State; and their powers may be revoked or enlarged and their acts may be set aside or CHAP. Xl] LARAMIE COUNTY V. ALBANY COUNTY 481 confirmed at the pleasure of the paramount authority, so long as private rights are not thereby violated. Russell v. Reed, 27 Penn. St. 170. Civil and geographical divisions of the State into counties, town- ships, and cities, said Thompson, C. J., had its origin in the necessi- ties and convenience of the people; but this does not withdraw these municipal divisions from the supervision and control by the State in matters of internal government. Proof of that is found in the fact that the legislature often exercises the power to exempt property hable to taxation, and in many other instances imposes taxes on what was before exempt, or increases the antecedent burdens in that behalf. It changes county sites, and orders new roads to be opened and new bridges to be built at the expense of the counties; and no one, it is supposed, dis- putes the exercise of such powers by the legislatiure. Bums v. Clarion County, 62 Penn. St. 425; People v. Pinkney, 32 N. Y. 393; St. Lmiis v. Russell, 9 Mo. 507. Old towns may be divided, or a new town may be formed from parts of two or more existing towns; and the legislature, if they see fit, may apportion the common property and the common burdens, even to the extent of providing that a certain portion of the property of the old town shall be transferred to the new corporation. Bristol v. Chester, 3 N. H. 524. In dividing towns, the legislature may settle the terms and conditions on which the division shall be made. It may enlarge or diminish their territorial liabilities, may extend or abridge their privileges, and may impose new liabilities. " Towns," says Richardson, C. J., " are public corporations, created for purposes purely public, empowered to hold property, and invested with many fimctions and faculties to enable them to answer the purposes of their creation." There must, in the natiu-e of things, be reserved, by necessary impli- cation, in the creation of such corporations, a power to modify them in such manner as to meet the public exigencies. Alterations of the kind are often required by public convenience and necessity; and we have the authority of that learned judge for saying that it has been the con- stant usage, in all that section of the Union, to enlarge or curtail the power of towns, divide their territory, and make new towns, whenever the convenience of the public requires that such a change shall be made. _ _ i • * HaK a century ago, when that decision was made, the authority of the legislature to make such a division of a municipal corporation was deemed to be without doubt; and the same court decided that the power to divide the property of a municipal corporation is necessarily incident to the power to divide its territory and to create the new corporation. Barlingtm v. Mayor, 31 N. Y. 195; Clirdxm v. Railroad, 24 Iowa, 475; Laytm v. New Orleans, 12 La. Ann. 516. Cases doubtless arise where injustice is done by amiexmg part of one municipal corporation to another, or by the division of such a corpo- 482 CASES ON MUNICIPAL OR PUBLIC COEPOBATIONS [CHAP. XT ration and the creation of a new one, or by the consolidation of two or more such corporations into one of larger size. Examples illustrative of these suggestions may easily be imagined. (1.) Consolidation will work injustice where one of the corporations is largely in debt and the other owes nothing, as the residents in the non-indebted municipality must necessarily submit to increased burdens in consequence of the indebtedness of their associates. (2.') Like consequences follow where the change consists in annexing a part of one municipal corporation to another, in case the corporation to which those set off are annexed is. greatly more in debt than the corporation from which they were set off. Hardships may also be suffered by the corporation from which a portion of its inhabitants, with their estates, may be set off, in case the corporation is largely in debt, as the taxes of those who remain must necessarily be increased in proportion as the polls and estates within the municipality are diminished. Even greater injustice may arise in cases where the legislature finds it necessary to circumscribe the juris- diction of a county or town by dividing their territory, and creating new coimties or towns out of the territory withdrawn from their former boimdaries. Legislative acts of the kind operate differently under different circum- stances. Instances may be given where the hardship is much the greater towards the new municipality, as where the great body of the property and improvements are left within the new boundaries of the old corpo- ration. Other cases are well known where the hardship is much greater towards the old corporation, as where the newly-created subdivision embraces within its boundaries all the public buildings and most of the pubUc improvements and the most valuable lands. Circumstances of the kind, with many others not mentioned, show beyond doubt that Such changes in the subdivisions of a State often present matters for adjustment involving questions of great delicacy and diflSculty. Allusion was made to this subject by the Supreme Court of New Hampshire in the case to which reference has already been made. 3 N. H. 524. Speaking of the power to divide towns, the court in that case say that the power in that regard is strictly legislative; and that the power to prescribe the rule by which a division of the property of the old town shall be divided is incident to the power to divide the terri- tory, and is in its nature purely legislative. No general rule can be pre- scribed by which an equal and just decision in such cases can he made. Such a division, say the court in that case, must be foimded upon the circumstances of each particular case; and in that view the coiu"t here entirely concurs. Powers v. Commissioners of Wood Ccnmty, 8 Ohio St. 290; Shelby County v. Railroad, 5 Bush, 228; Olney v. Harvey, 60 111. 455. Regulation upon the subject may be prescribed by the legislatiu-e; but, if they omit to make any provision in that regard, the presumption must be that they did not consider that any legislation in the particular case was necessary. Where the legislature does not prescribe any such CHAP. Xl] TOWN OF MOUNT PLEASANT d ol. V. BECKWITH 483 regulation, the rule is that the old corporation owns all the public property within her new limits, and is responsible for all debts contracted by her before the act of separation was passed. Old debts she must pay, without any claim for contribution; and the new subdivision has no claim to any portion of the public property except what falls within her boundaries, and to all that the old corporation has no claim. North Hempsteadv. Hempstead,2Vfend. 134; Dill, an Mun. Corp., Sect. 128; Wade V. Richmond, 18 Gratt. 583; Higginbotham v. Com., 25 id. 633. Tested by these considerations, it is clear that there is no error in the record. Decree affirmed. TOWN] OF MOUNT PLEASANT _et d. v. BECKWITH * 100 U. S. 514. 1879 Appeal from the U. S. Circuit Coiu-t for the Eastern District of Wisconsin. Bill in equity against the town of Mount Pleasant, the town of Caledonia, and the city of Racine, brought by Beckwith to enforce payment of certain bonds issued by the town of Kacine in 1853, under legislative authority. In 1859, the name of the town of Racine was changed to Orwell. In 1860, the legislature aboKshed the towa of Orwell, and annexed a part of its territory to Caledonia and the rest to Mount Pleasant; but the act did not provide for the apportionment, or the payment, of tibe in- debtedness of Orwell. In 1871, the le^latiu-e passed an act separating a portion of the territory which had been annexed to Mount Pleasant, and annexing it to the city of Racine. That act provided that the city of Racine " shall assume and pay so much of the indebtedness of the town of Radne as the lands described in the first section of the act may be or become legally chargeable with and liable to pay." Demurrers were filed by the defendants but were overruled. Answers were filed, and the case was referred to a master, who found the valuation of the taxable property which each defendant had received from the town of Orwell, and the proportion which it bore to the full amount of taxable property formerly within the territory of that town. The court decreed that each defendant should pay a portion of the amount of the bonds of the town of Racine equivalent to the portion of the taxable property of the town of Racine annexed to its territory. The itown of Mount Pleasant and the town of Caledonia appealed. L. S. Dixon and John T. Fish, for appellants. William P. Lynde, for appellees. CuFFOBD, J. ... It follows that the only question open in the case for examination is, whether the other two respondent municipal cor- porations are liable to any extent for the debts of the extinguished 484 CASES ON MUNICIPAL OR PTJBUC CORPORATIONS [CHAP. XT municipaUty, portions of whose territory were transferred by the legis- lature into their respective jurisdictions. We say, liable to any extent, because the question of amount was submitted to the master, and the record shows that neither of the appellants excepted to the master's report. Gordon v. Lewis, 2 Sum. 143; McMicken v. Perin, 18 How. 507 (59 U. S. XV, 504). Nor do either of the assignments of error allege that the master committed any error in that regard. Brockett v. Brockett, 3 How. 691. Viewed in that light, as the case should be, it is clear that if the ap- pellants are Uable at all, they are liable for the respective amounts specified in the decree. Harding v. Handy, 11 Wheat. 103; Story v. Livingston, 13 Pet. 359. WherjB one town is by a legislative act merged in two others, it would, doubtless, be competent for the legislature to regulate the rights, duties, and obligations of the two towns whose limits are thus enlarged; but if that is not done, then it must follow that the two towns succeed to all the public property and immunities of the extinguished municipahty. Morgan v. BeloU, 7 Wall. 613, 617 (74 U. S. XIX, 203, 204). It is not the case where the legislature creates a new town out of a part of the territory of an old one, without making provision for the payment of the debts antecedently contracted, as in that case it is settled law that the old corporation retains all the public property not included within the limits of the new municipality, and is liable for all the debts contracted by her before the act of separation was passed. Depere v. BeUemte, 31 Wis. 120, 125. Instead of that, it is the case where the charter of one corporation is vacated and rendered null, the whole of its territory being annexed to two others. In such a case, if no legislative arrangements are made, the effect of the annulment and annexation will be that the two enlarged corporations will be entitled to all the pubUc property and immunities of the one that ceases to exist, and that they will become liable for all the legal debts contracted by her prior to the time when the annexation is carried into operation. Speaking to the same point, the Supreme Court of Missouri held that where one corporation goes entirely out of existence by being annexed to or merged in another, if no arrangements are made respecting the property and habiKties of the corporation that ceases to exist, the sub- sisting corporation will be entitled to all the property and be answerable for all the Kabilities. Thompson v. Abbott, 61 Mo. 176, 177. Grant that; and it follows that when the corporation first named ceases to exist there is then no power left to control in its behalf any of its funds, or to pay off any of its indebtedness. Its property passes into the hands of its successor, and when the benefits are taken the burdens are assumed, the rule being that the successor who takes the benefits must take the same cum onere, and that the successor town is thereby estopped to deny that she is liable to respond for the attendant burdens. CHAP. Xl] TOWN OF MOUNT PLEASANT et al. V. BECKWITH 485 Swain v. Seamens, 9 Wall. 254, 274 (76 U. S. XIX, 554, 560); Pickard V. Sears, 6 Ad. & El. 474. Powers of a defined character are usually granted to a municipal corporation, but that does not prevent the legislature from exercising unlimited control over their charters. It still has authority to amend their charters, enlarge or diminish their powers, extend or limit their boundaries, consoHdate two or more into one, overrule their legislative action whenever it is deemed unwise, impoUtic, or unjust, and even abolish them altogether, in the legislative discretion, and substitute in their place those which are different. Cooley, Const. lAm., 4th ed. 232. Municipal corporations, says Field, J., so far as they are invested with subordinate legislative powers for local purposes, are mere instrumental- ities of the State for the convenient administration of their affairs; but when authorized to take stock in a railroad company, and issue their obligations in payment of the stock, they are, to that extent, to be deemed private corporations, and their obligations are secured by all the guaranties which protect the engagements of private individuals. Brmighton v. Pensacola, 93 U. S. 266, 269 (XXIII, 896, 897). Modifications of their boundaries may be made, or their names may be changed, or one may be merged in another, or it may be divided and the moieties of their territory may be annexed to others; but in all these cases, if the extinguished municipality owes outstanding debts, it will be presumed in every such case that the legislature intended that the liabilities as well as the rights of property of the corporation which, thereby ceases to exist shall accompany the territory and property into the jurisdiction to which the territory is annexed. Colchester v. Seaher, 3 Burr. 1866. Neither argument nor authority is necessary to prove that a State leg- islature cannot pass a valid law impairing the obligations of a contract, as that general proposition is universally admitted. Contracts under the Constitution are as sacred as the Constitution that protects them from infraction, and yet the defense in this case, if sustained, will es- tablish the proposition that the effect of State legislation may be such as to deprive a party of all means of sustaining an action of any kind for its enforcement. Cases, doubtless, may arise when the party cannot collect what is due under the contract; but he ought always to be able, by some proper action, to reduce his contract to judgment. Suppose it be admitted that the act of the State legislature annulling the charter of the municipality indebted to the complainant, without making any provision for the payment of outstanding indebtedness, was unconstitutional and void, still it must be admitted that the very act which annulled that charter annexed all the territory and property of the municipality to the two appellant towns, and that they acquired with that the same power of taxation over the residents and their es- tates that they previously possessed over the estates of the inhabitants resident within their limits before their boundaries were enlarged. 486' CASES ON MUNICIPAL OH PUBUC COHPOKATIONS [CHAP. XI Extinguished municipal corporations neither own property nor have they any power to levy taxes to pay debts. Whatever power the ex- tinguished municipality had to levy taxes, when the act was passed an- nulling her charter, terminated, and from the moment the annexation of her territory was made to the appellant towns, the power to tax the prop- erty transferred, and the inhabitants residing on it, became vested in the proper authorities of the towns to which the territory and juris- diction were by that act transferred; from which it follows that, for all practical purposes, the complainant was left without judicial rem- edy to enforce the collection of the bonds or to recover judgment for the amoimts they represent. When the appellant towns accepted the annexation, their authorities knew or ought to have known that the extinguished municipality owed debts, and that the act effecting the annexation made no provision for their payment. They had no right to assume that the annulment of the charter of the old town would have the effect to discharge its indebtedness, or to impair the obligation of the contract held by its creditors to enforce the same against those holding the territory and jurisdiction by the authority from the legislature, and the public prop- erty and the power of taxation previously held and enjoyed by the extinguished municipality. Express provision was made by the act annulling the charter of the debtor municipality for annexing its territory to the appellant towns; and when the annexation became complete, the power of taxation pre- viously vested in the inhabitants of the annexed territory as a separate municipality ceased to exist, whether to pay debts or for any other purpose — the reason being that the power, so far as respected its future exercise, was transferred with the territory and the jurisdiction over its' inhabitants to the appellant towns, as enlarged by the annexed terri- tory; from which it follows, unless it be held that the extinguishment of the debtor municipality discharged its debts without payment, which the Constitution forbids, that the appellant towns assumed each a proportionate share of the outstanding obligations of the debtor town when they acquired the territory, public property, and municipal juris- diction over everything belonging to the extinguished municipality. Corporations of a municipal character, such as towns, are usually organized in this country by special acts or pursuant to some general State law; and it is clear that their powers and duties differ in some im- portant particulars from the towns which existed in the parent country before the Revolution, where they were created by special charters from the Crown, and acquired many of their privileges by prescription, ■without any aid from parliament. Corporate franchises of the kind granted during that period partook much more largely of the natxu-e of private corporations than do the municipaUties created in this coun- try, and known as towns, cities, and counties. Power exists here in the legislature, not only to fix the boundaries of such a municipaUty CHAP. Xl] TOWN OP MOUNT PLEASANT d ol. V. BECKWITH 487 when incorporated, but to enlarge or diminish the same subsequently, •without the consent of the residents, by annexation or set-off, unless restrained by the Constitution, even against the remonstrance of every property holder and voter within the limits of the original municipality. Property set off or annexed may be benefited or burdened by the change, and the liabiUty of the residents to taxation may be increased or diminished; but the question, in every case, is entirely within the control of the legislature, and, if no provision is made, everyone must submit to the will of the State, as expressed through the legislative department. Inconvenience will be suffered by some, while others will be greatly benefited in that regard by the change. Nor is it any objec- tion to the exercise of the power, that the property annexed or set off will be subjected to increased taxation, or that the town from which it is taken or to which it is annexed will be benefited or prejudiced, unless the Constitution prohibits the change, since it is a matter, in the absence of constitutional restriction, which belongs wholly to the legislature to determine. Courts everywhere in this country hold that, in the division of towns, the legislature may apportion the biu-dens between the two, and may determine the proportion to be borne by each. Sill v. Coming, 15 N. Y. 297; Mayor v. State, 15 Md. 376; Olney v. Harvey, 50 lU. 453; Borough of Dunmore's App., 52 Pa. 374. Public property and the subordinate rights of a mimicipal corpora- tion are within the control of the legislature; and it is held to be settled law that, where two separate towns are created out of one, each, in the absence of any statutory regulation, is entitled to hold in severalty the public property of the old corporation which falls within its limits.* N. Hempstead v. Hempstead, 2 Wend. 109; Hartford Br. Co. v. E. Hart- ford, 16 Conn. 149, 171. Extensive powers in that regard are, doubtless, possessed by the legislature; but the Constitution provides that no State shall pass any " law impairing the obUgation of contracts," from which it follows that the legislature, in the exercise of any such power, cannot pass any valid law impairing the right of existing creditors of the old municipality. 1 BiU., Mun. Corp., 2d ed., § 41; Van Hoffman v. Quincy, 4 Wall. 535, 554 (71 U. S. XVIII, 403, 409); Lee Co. v. Rogers, 7 Wall. 181, 184 (74 U. S. XIX, 160, 161); Bviz v. Muscatine, 8 Walh 575, 583 (75 U. S. XIX, 490, 493); Furman v. Nichol, 8 WaU. 44, 62 (75 U. S. XIX, 370, 377). ^ . . Where a municipal corporation has the power to contract a debt, it has, says Dixon, C. J., by necessary implication, authority to resort to the usual mode of raising money to pay it, which, undoubtedly, is tax- ation. Hashrouck v. Milwaukee, 25 Wis. 122, 133. Whenever the charter of a city, at the time of the issue of bonds, made 1 See Bloomfield v. Olen Ridge, 54 N. J. Eq. 276, where, upon the separation of nart nf the temtarv of a town and the erection thereon of a borough government, it w^heldth^t^Tewer pipes and connections within the detached territory passed to the borough government. 488 CASES ON MUNICIPAL OE PUBLIC C0KP0KATI0N8 [cHAP. XI it the duty of the city authorities to levy and collect the amount, when reduced to judgment, like other city charges, the same court held that a subsequent act of the legislature prohibiting the city from levying such a tax would be repugnant to the Constitution. Sautter v. Madison, 15 Wis. 30. State control over the division of the territory of the State into cities, towns, and districts, unless restricted by some constitutional limitation, is supreme, but the same court admits that it cannot be exercised to annul another regulation of the Constitution. Chandler v. Boston, 112 Mass. 200; Ops. of Justices, etc., 6 Cush. 580. Cities or towns, whenever they engage in transactions not public in their nature, act under the same pecuniary responsibility as individuals, and are as much bound by their engagements as are private persons, nor is it in the power of the legislature to authorize them to violate their contracts. Saving Soc. v. Philadelphia, 31 Pa. 175, 185. Text writers concede almost unlimited power to the State legislatures in respect to the division of towns and the alteration of their bounda- ries; but they all agree that in the exercise of these powers they cannot defeat the rights of creditors nor impair the obligation of a valid con- tract. 1 DHL, Mun. Corp., § 128; Blanchard v. Bissell, 11 Ohio, 96; Lansing v. Co. Treas., 1 DiU. (C. C), 522, 528. Concessions of power to municipal corporations are of high impor- tance; but they are not contracts, and, consequently, are subject to legislative control without limitation, unless the legislature oversteps- the limits of the Constitution. Layton v. New Orleans, 12 La. An. 515. Bonds had been issued and used by a city for purchasing land for a^ park, which was pledged for the payment of the bonds; held, that a sub- sequent act of the legislature authorizing a sale of a portion of the park, free of all liens existing by virtue of the original act, was in violation of the Federal Constitution, as impairing the obligation of contracts. Brooklyn Park Gem. v. Armstrong, 45 N. Y. 234, 247. Laws passed by a State impairing the obUgation of a contract are void, and if a State cannot pass such a law, it follows that no agency can d» so which acts under the State with delegated authority. Cooley, Const. Lim., 4th ed., 241; A. & A. Corp., 9th ed., §§ 332, 333. Municipal debts cannot be paid by an act of the legislature annulling the charter of the municipality, and, if not, then the creditors of such a political division must have some remedy after the annulment takes place. Without officers, or the power of electing such agents, a mirnici- pal corporation, if it can be so called, would be an entity very difficult to be subjected to judicial process or to legal responsibility; but when the entity itself is extinguished, and the inhabitants with its territory and other property are transferred to other municipalities, the sug- gestion that creditors may pursue their remedy against the original con- tracting party is little less than a mockery. Public property, with the inhabitants and their estates, and the power of taxation, having been. CHAP. Xl] TOWN OF MOtTNT PLEASANT d ol. V. BECKWITH 489 transferred by the authority of the legislature to the appellants, the prin- ciples of equity and good conscience require that, inasmuch as they are and have been for nearly twenty years in the enjoyment of the benefits resulting from the annexation, they shall in due proportions also bear the burdens. New Orleans v. Clark, 95 U. S. 644, 654 (XXIV, 521, 522). Equitable rules of decision are sufficiently comprehensive in their reach to do justice between parties htigant, and to overcome every difficulty which can be suggested in this case. States are divided and subdivided into such mimicipalities, called counties, cities, towns, and school districts, and the legislature of every State is required every year to pass laws modifying their charters and enlarging or diminishing their boundaries. Nor are the questions presented in this case either new in principle or difficult of application. New forms are given to such charters in every day's experience, when the limits of an old corporation are changed by annexation of new territory, or portions of the territory of the old mimicipality are set off and annexed to another town. Both corpo- rations, in such a case, continue, though it may be that the charters are much changed, and that the inhabitants of the territory annexed or set off fall tmder different officers and new and very diverse regulations. Beckivith v. Racine, 7 Biss. 142, 149. Pecuniary burdens may be increased or diminished by the change; but, in the absence of express provisions regulating the subject, it will be presumed in every case where both municipalities are continued, that the outstanding Uabilities of the same remain unaffected by such legis- lation. Unlike that, in this case the charter of the old town was vacated and annulled; from which it follows that the same principles of justice require that the appellant towns, to which the territory, property, and inhabitants of the annulled mimicipaUty were annexed, should become liable for its outstanding indebtedness. Hearing was had in this case during the last term of this court and the case now numbered 283 was heard at the same time. Both cases, it is agreed by the parties, depend upon substantially the same facts, and, of course, they must be decided in the same way.^ Decree in ea/ik case is affirmed. Miller, J., dissenting. Mb. Justice Field, Mb. Justice Bkadlet, and myself are of opinion that it requires legislation to make a legal obligation against the new town, and make the apportionment of the debt; and we dissent, on that ground, from the judgment and from the opinion of the court in this case. 1 "In MobOe v. Wateon, 116 U. S. 289, it was held that when a municipal corpora- tion with fixed boundaries is dissolved by law and a new coiyoration is created by the leridatare for the same general purposes, but with new boundaries, embracing kss Sto^btrt containing substantiaUy the same population, the great mass of the tSKroperty, ar^e corporate property of the old corporation which passes ^th^t coiS^dffin and for the same uses, the debts of the old corporation faU ^on the ne^ ai its legal successor; and that powers of taxation to pay them, which k'had at thSe of^eir creation and which entered into the contracts, also survive ^d pass into the new corporation." Shapleigh v. San Angela. 167 U. S. 646, at 653. 490 CASES ON MUNICIPAL OH PUBUC COEPOEATIONS [CHAP. XI I TOWN OF MONTPELIER «. TOWN OF EAST MONTPELIER * 27 Vt. 704. 1854 Assumpsit to recover rents received by the defendants on leases of •certain lots of land, which were formerly situated within the territory of the original town of Montpelier. They were granted to that town in 1781, in its original charter, for certain public uses; namely, the settlement of a minister or ministers of the gospel, the support of the wcJrship of God, and the support of an English school or schools. At trial, the plaintiffs relied on an Act of 1848, which declared the old town of Montpelier to be divided and incorporated into two dis- tinct towns, Montpelier and East Montpelier; and which provided for a division of the property of the original town in proportion to the grand lists of the persons and property of the new towns. The evi- dence showed that after the division the lands were situated within the territory of East Montpelier. They had been leased before the di- vision to individuals. The leases had been delivered to the treasurer of the present town of Montpeher, but the treasurer of East Montpelier had collected the rents. The cotirt ruled that the plaintiffs were entitled, imder the Act of 1848, to a part of the rents in proportion to the grand lists of the towns; and rendered judgment accordingly. To that ruluig both parties excepted. J. A. Vail and Merrill & Willard, for the plaintiffs. P. Dillingham and Peck & Colhy, for the defendants. Bennett, J. . . . From the peculiar and explicit language of the act, it is clear that it was the intention of the legislature to make two new and distinct corporations; and the effect of this, from necessity, must be to abolish the old municipahty, for we cannot suppose it was the in- tention of the legislature that the old municipahty should continue to exist with a curtailed territory, and at the same time a new munici- pality be created and organized out of the same territory. If, by the act, the town had been simply divided, creating East Montpeher a new municipahty out of a part of the territory included in the old town of Montpelier, the old municipality of Montpelier, might, by imphcation, have continued to exist with a curtailed territory. And this I think, has been the usual mode that has been adopted in the division of towns. ' We must regard this suit, then, as brought by the new municipahty, known as Montpelier, and for all legal and substantial purposes the name is of no particular account. The question then is, can this action i be maintained, either to recover the whole fund or a part of it? . . . The individual inhabitants of the township, as incorporated in 1781, may be regarded as the beneficiaries, or cestui que trusts. AU the right "which the old miuiicipahty of Montpelier could have had to these I CHAP. Xl] MONTPELIEH V. TOWN OF EAST MONTPELIER 491 funds was as trustees, and to see them applied to the uses to which they had been assigned. The question then is, can the new township of MontpeUer, incor- porated under the act of 1848, maintain this action. If they can, a recovery would not be for their own use, but in trust, for the uses speci- fied in the original charter. To simplify the case, we may suppose the defendant to be an entire stranger to all interest in the funds. The fact that East Montpelier may set up a conflicting claim to some por- tion of them, or even to the whole, cannot alter the principles upon which the plaintiff's claim must rest. If this action can be sustained, it must be entirdy by force of the fourth section of the Act of 1848, creating two new municipal cor- porations. It is not necessary to call in question the powers of the legislature over municipal corporations, and the fimds which belonged to them as such, and which they hold for their own corporate purposes. No such questions are before us. The object of this suit is to test the right of tiie present town of Montpelier to manage and control trust funds which, by the terms of the grant creating them as contained in the charter of 1781, were, by the donors, declared to be under the charge, direction, and disposal of the inhabitants of said township for- ever. By this, as I understand it, is meant the inhabitants of the terri- tory of Montpelier, as then chartered, but, as I now think, in their corporate capacity. The form of the gift in the original charter, is somewhat peculiar. An important inquiry then is, what should be the effect of the Act of 1848, upon the legal control of these trust funds? Did the legislature attempt to divide these funds into two fra^nents, and give the control of one to Montpelier and that of the other to East Montpelier? We apprehend the construction of the act should be such, as to operate only, upon such property, as belonged to the towns for their own municipal and corporate purposes. . . . In Harrison v. Bridgeton, 16 Mass. 16, by the terms of the charter of the township of Bridgeton, one right was to be appropriated to the use of schools, and one right to the use of the ministry; and when the town of Harrison was incorporated out of a part of Bridgeton, and part out of an adjoining town, the act of incorporation provided for a divi- sion of all the property, rights and credits of the towns of Bridgeton, with the new town of Harrison; yet the court held, that the funds which were held in trust were not within the act. We are inclined to give the Act of 1848 a similar construction, otherwise, for one, I apprehend that the act providing for a division of the property of the town would be liable to constitutional objections. , . , , • 4. t There is nothing in the case to show any consent of the mhabitants ot the old township to a division of these trust funds, between the two new corporations. If the fourth section of the Act of 1848 was to be so construed as to include property held in trust by the town, it might 492 CASES ON MUNICIPAL OB PUBLIC COBPOKATIONS [CHAP. XI not, it is true, divert the fund from the objects for which they were designed by the donors; yet its effect would be, to divide into two parts, what before was an entire fund, and create a new and several regency for each fragment, when the donors by their grant made it an entire fund, and placed it under a different regency from what the Act of 1848 would create for the control of each fragment. In the Dartmovtk College Case, Chief Justice Marshall well says, "that no authority exists in a government to regulate, control or di- vert a corporation or its funds, except where the corporation is, in the strictest sense, public, that is," he adds, "where the whole interests and franchises are the exclusive property and domain of the govern- ment itself." Although towns, may be regarded as public corporations, created for political purposes; and although the corporations them- selves, and the property belonging to them as municipal corporations, may be subject to the control of the legislature; yet if made the almo- ners of a charity, or the guardians of a trust fund, it by no means follows that the legislature can alter or change the trust. In the Dartnunith College Case v. Woodward, 4 Wheat. 518, there was no attempt to pervert the funds of the college to a use different from the one to which they had been assigned by the donors. The only ob- ject of the statute of the New Hampshire legislature was to change the regency of those funds, and yet the law was held unconstitutional. So ia the case of the Commonwealth ex rel. Claghom et al. v. CvUen et al., 1 Harris 133, it was held that an act increasing the number of trustees and changing the time of their election without the assent of the corporation was not a vaUd act. See also Brotm v. Hummell, 6 Ban- 86. The case of the Trustees of the New Ghucester School Fund v. Wm. Bradburjf, 2 Fairfield 118, is quite analogous to what the case before us would have been, had the fourth section of the Act of 1848 extended in its terms, to include the trust funds now in dispute. In that case, an act of the legislature, authorizing the town to choose a new set of trus- tees for the school fund, and directing the first trustees to deUver over the trust property to them, was held unconstitutional. The school fimd had the effect to reduce the sum to be raised and collected by taxation for the support of schools in the town, and in this way the town had a beneficial interest in the funds of the corporation, and brought the case, it is said, within the very language of the court in the case of Dartmouth College v. Woodward. The court repudiated an at- tempt to distinguish between the two cases upon the ground that New Gloucester was a municipal corporation. [Pmiltney v. Wells, 1 Aik. 180, and Plymouth v. Jackson, 15 Penn. 44, reviewed.] The effect of the Act of 1848, of oiu- legislature, being to abolish the trustee of these funds, created by the charter of 1781, and the Act of 1848 being inoperative, to create a valid division of the funds between CHAP. Xl] MONTPEUER V. TOWN OF EAST MONTPELIEK 493 the two new towns, it must follow that this action cannot be sustained. The new township of Montpelier has no legal interest in the funds, vested in them as trustees. The judgment of the county court is reversed, and the cause re- manded. [Redfield, C. J., did not sit.]^ 1 After thia decision, the town of Montpelier and its selectmen, in behalf of them- selves and the other inhabitants, brought a bill in equity against East Montpelier and its selectmen, as properly representing the interests of all the inhabitants of that town; and prayed that a trustee might be appointed to take charge of the lands and rents held by the old town in trust. The court decided that the prayer should be granted and a trustee appointed, as if the original trustee had been a natural person, and had died. Montpelier v. East MontpelieT, 29 Vt. 12. INDEX. A. ADJOURNMENT. (See Municipal Bodies.) B. BILLBOARD ORDINANCES, 195. BOARD OF HEALTH. (See Tokts, Liability poh.) BONDS, MUNICIPAL, when power implied to tax for payment, 62. mandamus, when bondholders entitled to, 62. recitals in, etc., 326. {See Contractual Liabilities.) statute validating city bonds, 423. _ BORROWING. {See Contractual Liabilities.) BRIDGES. (See Powers.) CITY HALL. (See Torts, Ll*bilitt fob.) CONTRACTS. (See Contractual Liabilities.) CONTRACTUAL LIABILITIES, ' ofiScers as agents, 283. whether signature binds the corporation or the oflScer, 283. liability of public agents where they exceed their authority, 283. liability of corporation on the contract where there are conditions prece- dent to the oflScer's authority, 285, 300. whether rule of apparent authority applies, 285, 296. how corporate consent can be given, 287-300. appropriations in advance, 292. ratification, 289, 300. liability on contract implied in fact, 291, 300. acquiescence in an irregular practice, estoppel by holding out, etc., 295-300. requirement of advertising and bidding, 300. whether estopped to set up tdtra vires, 304. UabiUty as on quantum, meruit where contract ultsra vires, 305, 310, 322. liability for money received, 306, 322. obligation to restore property received, 308. right of creditor to trace money into property, 322. liability as on quantum meruit, where the contract was irregularly made, 313-317. liability for borrowed money, 317, 322. 496 INDEX CONTRACTUAL LIABILITIES — continued, liability on negotiable instruments, 317. rights of bona fide purchasers, 317-333. effect of Constitutional proVision limiting municipal indebtedness, 322. effect of recitals in bonds, 326. liabiUty on instruments issued upon officer's decision that conditions pre- cedent have occurred, 326. liability for interest, 333-335. CORPORATIONS, public and private distinguished, 1. different classes of, 1. COUNTY, nature of, 1, 13, 15. independent owner of property, 13. liability for non-repair of highways, 383. CREATION OF PUBLIC CORPORATIONS, legislative power to create and alter, 17-31, 437, 480. to invest with authority, 18-25. form of government, 25. by general laws, 25. constitutional provision against local or special laws, 25. provision for referendum, 30. CREDITORS, can compel taxation, 62, 421. rights and remedies of, 406-422. remedy by mechanic's lien, 406. remedy by execution, 409, 416. levy upon gravel-pit, 410. garnishment of funds, 412. attachment of revenues, 412-415. levy upon land bought at tax sale, 414. creditors' rights after dissolution, 419. administration in equity, 419. right to mandamus, 409, 413, 418, 421. , D. DEDICATION. (See Public Easements.) DEFINITION AND NATURE OF PUBLIC CORPORATIONS, 1-7, 10. distinguished from private, 1. nature of charter, 1, 6. DELEGATION OF DISCRETION, when illegal, 228-241. in a Ucense ordinance, 228, 235. in an improvement ordinance, 230. when legal, 233. in a taxing ordinance, 233. DISCRETION, EXECUTIVE, conferring or reserving unlimited executive discretion, 235. (See DEtEGATiON or Dmcbetion.) INDEX 497 DISCRETION, LIMITATIONS ON, unreasonableness, 108-208. (See Unreasonableness.) abuse of police power resulting in confiscation, 191-203. (See Police Power.) discrimination, 208-224. {See Discrimination.) , licenses and permits, 224. conferring or reserving executive discretion, 228. (See Delegation of Discretion.) restricting future exercise of discretion, 241. (See Restricting Discre- tion.) DISCRETION, RESTRICTING FUTURE EXERCISE OF. (See Re- stricting Discretion.) DISCRIMINATION, in municipal contracts, 208. in public services, 211. in police ordinances, 214, 221. in taxation, 216, 221. E. ELECTIONS. (See Municipal Bodies.) EMPLOYEES, LIABILITY TO. (See Torts, Liability for.) EXECUTIVE VETO OR APPROVAL. (See Municipal Bodies.) F. FERRY. (See Powers, State Control op Municipal Affairs.) FIRE ENGINE. (See Powers.) FIREMEN. (See Torts, Liability for.) FIREWORKS. (See Powers ; Torts, LiABiLrrY for.) FRANCHISES. (See Public Services.) FUEL-YARDS. (See Public Services.) H. HEALTH DEPARTMENT. (See Torts, Liability for.) I. INDEPENDENT OFFICERS. (See Torts, Liability for.) INTEREST. (See Contractual Liabilities.) L. LEGAL STATUS OF PUBLIC CORPORATIONS, 8-16. LIABILITIES. (See Contractual Liabilities ; Liability for Torts.) LICENSES AND PERMITS, under taxing or police power, 224r-227. ordinance granting too great a discretion, 228. 498 INDEX LIGHT PLANTS. (See Public Services.) LIGHTING CONTRACTS. (See Public Services.) LIMITATIONS ON INDEBTEDNESS, 322. LOCAL OR SPECIAL LAWS, CREATION BY. (See Creation op Public Corporations.) LOCAL SELF-GOVERNMENT, RIGHT OF. (See State Control of Municipal Affairs.) M. MAJORITY. (See Municipal Bodies.) MANDAMUS, as a remedy in favor of creditors. (See Cbeditobs.) MARKET-HOUSE. (See Powers.) MUNICIPAL BODIES, notice and quorum, 25S-263. committee, procedure of, 258. ratification of committee's acts, 260. notice of body's meeting where time is fixed by law, 261. notice of special meetings, 261. adjournment by less than a quorum, 262. whether the body can fix the quorum in bylaws, 262. authority to adopt rules of procedure, 262. quorum at common law, 258-263. prevailing number, 264r-270. where members of electorate do not vote, 264. number required in select bodies, 264. where members present but not voting, 264-270. elections, candidate inehgible, 270. voting rights, where member is interested, 274. when vote can be- reconsidered, 276. nature of adjourned meeting, 276. whether appointment of officer can be reconsidered, 277. whether authorization of a contract can be reconsidered, 278. what measures require executive approval, 280. construction of charter; what are "acts" which maj be vetoed, 280. different kinds of acts by municipal bodies, 280. MUNICIPAL CORPORATIONS, nature of, 8, 44. taxation of, by federal government, 8. pubKc or private capacity, 11-13, 251, 342, 427-467. form of government, 25. N. NEGLIGENCE. (See Torts, Liability for.) NEGOTIABLE INSTRUMENTS. (See Contractual Liabilities.) NOTICE AND QUORUM. (See Municipal Bodies.) 2TOISANCES. (See Public Easements ; Police Power ; Torts, Liabil- ity FOR.) INDEX 499 o. OFFICERS. (See Powers op Public Cobpobations.) {See Municipal Bodies.) (See CoNTBACTUAL Liabilities.) (See State Control.) ^ ORDINANCES, nature of poKce ordinances, 46, 47. whether co-exiatent with state law on some subject, 47-65. whether conviction under bars indictment under statute, 47. when inconsistent with statute or legislative poUcy, 57-61. PARKS, outside of boundaries, 86. (See State Control, Public Easements.) POLICE OFFICERS. (See Tobts, Liability for.) POLICE POWER, delegation of by legislature, 18. vesting in a municipal board, 18. power to suppress fires, 40. nature of ordinance power, 46-48. power to offer a reward, 43. whether co-existent with state power on same subject, 47-56. whether conviction under ordinance bars indictment under statute, 47. when ordinance is inconsistent with statute or legislative policy, 57-61. abuse of, 191-203. in relation to nuisances, 191-203. billboard ordinances, 195. discrimination in police ordinances, 214, 221. licenses and permits, 224-227. delegating or reserving too great an executive discretion, 228, 235. restrictions of by contract, 241-246, 251. POLICE STATION. (See Tobts, Liability fob.) POWERS OP PUBLIC CORPORATIONS, to build a market-house, 32. to build a town-house, 32. usage, in detemmung, 34, 42. to construct a building so as to let, 36. to maintain a ferry, 37. to aid in constructing railroads, bridges, etc., 8, 38. to petition legislature, 38. to purchase a fire engine, 40. to hold fireworks exhibition, 41. police power, 4&-56. to offer a reward, 43. taxation. (See Taxation.) to adjust claims and pay money, 71. to compromise, 71. to submit to arbitration, 73. to indemnify officers, 74r-77. to pay an officer additional compensation, 78. ^ 500 INDEX POWERS OF PUBLIC CORPORATIONS — co-.rfintied. to purchase property, 80-88. to purchase a gravel-pit, 85. to own property outside of boundaries, 85. to employ property for revenue, 88. to acquire property otherwise than by purchase, 92. to execute trusts, 93-103. {See Tbusts, Municipal.) regarding pubUc easements, 105-129. {See Public Easements.) regarding public services, 163-188. {See Public Services.) to borrow money, 317. to issue negotiable instruments, 317. PRESCRIPTION. {See Public Easements.) PREVAILING NUMBER. {See Municipal Bodies.) PROPERTY. (See Powers op Public Corporations.) PUBLIC EASEMENTS, modes of establishing, 104. by prescription, 104. by dedication, 104-113. creation of park by dedication, 112. interest of municipality in a public way, 113. bill by city to enjoin obstruction, 113. power of city to obstruct or alienate, 115-129. power to license an obstruction, 118. adverse possession as against a city, 123. estoppel as defence against a city, 125-129. fee-owner's rights in soil, etc., 130. fee-owner's rights as against a new servitude, 131. what are new servitudes, 131. abutter's rights in a pubUc highway, 138-156. abutter's rights where a way is discontinued, 155. regulation of fee-owner's and abutter's uses, 156-162. finality of regulation as to nuisance, 168. PUBLIC SERVICE CONTRACTS, reasonableness of terms, 247, 251. PUBLIC SERVICES, power to maintain fuel yard, 163. power to maintain Ught and water plants, 165, 167. nature of charges, 169-173. power to grant street-franchise, 173-179. nature of street franchise and whether revocable, 173-187. power to fix rates, 179-187. right of grantee of franchise to discontinue, 184, discrimination against customers, 216, 221. QUANTUM MERUIT, LIABILITY AS ON. (See Contbactual Lia- bilities.) QUORUM. (See Municipal Bodies.) INDEX >501 R. 'BAILROADS, 67. (See Powers.) RECONSIDERATION, 68. {See Municipal Bodies.) RESTRICTING DISCRETION, by convenant in lease, 241. by contract with franchise company respecting maintenance of bridge, 244. in public service contracts, 247-257. REWARD. (See Powers.) S. SCHOOL-HOUSE. (See Toetb, Liability foe ; State Control.) SEWERS. (See Torts, Liability for.) SPECIAL ASSESSMENTS, when unreasonable, 188. STATE, suit by to recover money of a county, 13. immunity of from statute of limitations, 15. STATE CONTROL OF MUNICIPAL AFFAIRS, contracts, 423-431. power to validate vltra vires and irregular contracts, 423. power over city revenues, 425. power of local taxation, 425. power to release or control right of a city to collect a judgment, 426. power to release a contractual claim or debt due a coimty, 427. power to annul the contract of a town relative to streets, 430. control over pubUc service powers, 431-435. power to annul the right to maintain a ferry, 431. power over property: right of the locahty to seh-govemment, 435, 493. power to appoint municipal officers, 435, 461-478. history of local seU-govemment, 439. different classes of local officers, 442. power over highways, 445. different kinds of municipal property, 448, 450, 461. power over the property.which is private to the municipality, 448, 449, 461, cemetery, 449. waterworks, 454, 461. parks, 455. market, 455. hospital, 455. library, 455. power to transfer municipal property to a private corporation, 455. power to appropriate money raised by taxation to state purposes, 458. STATUTE OF LIMITATIONS, whether appUes against a pubhc corporation, 15. STREET^FRANCHISES. (See Public Services.) STREETS AND HIGHWAYS. (See Public Easements ; Torts, Liabil- ity for.) 602 INDEX T. TAXATION, by municipal corporation by federal government, 8. whether legislature can vest power to tax in municipal board, 21. delegation of taxing power by legislature, 18. whether power impUed, 62, 65. whether power impUed to impose a lien on property, 67. municipal power to grant, exemption from, 68. taxation distinguished from charges for public service, 169-173. discrimination in, 216-221. licenses as taxes, 224-227. ordinance conferring executive discretion to classify for taxation, 233. compulsory taxation of locality, 423, 458. TAXPAYERS' ACTIONS, to restrmn vUra vires act, 36. mandamus in favor of, 68. TORTS, LIABILITY FOR, unauthorized torts of ofSceis and employees, 336-348. poUce oflScers, 336. health department, 365. firemen, 337-338. employee in pohce station, 339. employee in city hall, 340. employee constructing highways, 346, 348. employee constructing water-works, 342. sewers, 352. where enterprise is commercial in nature, 342, 355. where an incidental revenue is obtained from public property, 346, 355. liabihty for injuries to employees, 348-353. for injuries to persons by the condition of its property, 353-357. town-house, 353. city hall, 355. school-house, 356. authorized trespasses on, or appropriations of, private property, 357-368. moving back highway fences, 357. nuisances to private property, 360-368. constructing sewer so as to flood, 360, 396. allowing school-house wall to encroach, 361. defence of statutory authority, 363. nuisances caused by employees but neither authorized nor resulting from its property, 365. intentional trespasses of employees but not authorized, 366. public nuisances licensed by the corporation, 368-372. licensed fireworks exhibition, 368. licensed firing of cannon on common, 370. failure to furnish public service or protection, 372-375. insuflSciency of sewer, 372, 397. insuflSciency of fire protection, 375. failure to perform a statutory duty, 376-395, 398. neglect to remove wreck from river, 376. neglect to repair bridge, 377. nature of duty to repair highway, 377-383, 385. liability of counties for non-repair of highways, 383. INDEX 503 TORTS, LIABILITY ¥0R — contmued. where statute is permissive ia form, 385. what constitutes negligence in failing to repair, 386. snow and ice, 386. constructive notice of defect, 386. duty to inspect, 386. where defect is caused by an independent contractor or his employee, 387. defence of le^lative authority, 390. trolley pole in street, 390. error of discretion; fault in the plan of a lawful undertaking, 396-401. where the result is a private nuisance, 396. where the result is a neglect of statutory duty' — defect in a highway, 398- liability for the result of an ultra vires undertaking, 401-403. nuisance forbidden by statute, 401. independent ofScers, 403-405. TOWN-HOUSE. (See Powers ; Tobts, Liabilitt fob.) TRUSTS, MUNICIPAL, power to execute, 93-103. for college, 93. for public library, 95, 101. for a public library association, 95. for poor, 95. for religious societies, 95. for hospital, 95. for flags, 98. power to pay incidental expenses, 98. where conditions are annexed which require taxation, 101. power to renounce after acceptance, 101. U. ULTRA VIRES. (See Contbactttal LiABiLiriBS ; Tobts, Liabilitt fob.) UNIVERSITY, whether a public or a private corporation, 3-7. state university, 7. UNREASONABLENESS, in improvement assessment, 188. in municipal purchases, 189. where the ordinance is particularly authorized by statute, 189. in police ordinances, 191-203. in public service contracts, 247. V. VETO. (See Municipal Bodies.) VOTING RIGHTS. (iSee Mttnicipal Bodies.)' W. WATER WORKS. (See Powebs ; Tohts, Liabilitt fob ; Public Sebvices ; State Contbol.) KF ^30^ AU M17 Author Vol. Macy, John Edward Tide A selection of cases on copy municipal or public corpora- Date Boxiower's Name