:CO
THE PRINCIPLES
OF THE LAW OF
PUBLIC CORPORATIONS
BY
^
CHARLES B. ELLIOTT, PH.D., LL.D.
JUDGE OF THI DISTRICT COUBT or MINNESOTA
CHICAGO
CALLAGHAN AND COMPANY
1898
COPYRIGHT, 1898,
BY
CHARLES B. ELLIOTT.
STATE JOURNAL PRINTING COMPANY,
PRINTERS AND STEREOTYPKRS,
MADISON, wis.
TO THE
HOK EGBERT G. EYAXS,
OF MINNESOTA,
THIS VOLUME IS CORDIALLY AXD RESPECTFULLY
DEDICATED.
THIS book is the result of an attempt to state the law of
Public Corporations in a manner suited to the needs of stu-
dents. The plan made it necessary to pass rapidly over ques-
tions which are no longer controverted, and to treat very
briefly matters which more properly belong to other titles of
the law. A writer on this subject must necessarily be under
unmeasured obligation to the Hon. John F. Dillon. I gladly
acknowledge that obligation.
The authorities have been verified and the table of cases
prepared by TV. E. Hewett, Esq., of the Minneapolis bar.
MINNEAPOLIS, April, 1898.
B
TABLE OF CONTENTS.
CHAPTER I.
INTRODUCTORY.
DEFINITION, CLASSIFICATION AND HISTORY.
In general . • § 1
Different kinds of corporations . ....... 2
Classification of public corporations . . . . . . .3
School districts 4
Distribution of powers and duties . 5
The county — Its organization and functions . . . . 6
The township ........... 7
The town meeting ...8
The township elsewhere than in New England . .... 9
The English municipality 10
The American municipality . . . ... . • .11
BOOK I.
THE CREATION AND CONTROL OF PUBLIC CORPORA-
TIONS.
CHAPTER IL
THE CREATION OF PUBLIC CORPORATIONS.
CHAPTER III.
LEGISLATIVE CONTROL OVER PUBLIC CORPORATIONS.
CHAPTER IV.
CONSTITUTIONAL LIMITATIONS UPON LEGISLATIVE POWER OVER PUBLIC
CORPORATIONS.
CHAPTER IL
THE CREATION OF PUBLIC CORPORATIONS.
Legislative authority . . . .§12
The power to create . .13
Compulsory incorporation . .• . ., 14
By the United States 15
By territorial legislatures ....16
By implication ......17
Vlll TABLE OF CONTENTS.
By prescription . . . . . . §18
Manner of legislative action ...,..,,19
Name, boundaries and powers ...•..,.20
CHAPTER III.
LEGISLATIVE CONTROL OVER PUBLIC CORPORATIONS.
General statement 21
Dual character of municipal corporations ...... 32
Local self-government ......... 23
Power over charters . . . . . . , . . .24
Public property ,,..25
Roads and streets 26
Certain franchises 27
The private property of a corporation ...... 28
Disposition of property upon dissolution ...... 29
L POWER OVER OFFICES AND OFFICERS.
Various kinds of officers .........30
Police officials ..31
Their appointment and payment .......33
Park commissioners ..........33
Board of public works 34
Officers to lay out streets . . . . . . . . .35
Mayor 36
IL FUNDS AND REVENUES.
Power over revenue of public corporations 37
IIL LEGISLATIVE CONTROL OVER CONTRACTS.
Relation of the corporation to the state 38
Rights of parties contracting with corporation ..... 39
Illustrations 40
Rights in a sinking fund . . . 41
Limitation on indebtedness ........ 42
IV. THE POWER TO IMPOSE OBLIGATIONS.
Nature of the debt ...43
Compulsory taxation ..........44
Construction of highways 4'
Support of public schools . . . ... • . .46
Local corporate purposes . . . . . . . ..47
Subscription for stock . . . 48
Compulsory payment of claims . .. . . , , . 49
V. THE TERRITORY AND BOUNDARIES.
The general rule 50
\Vhatterritorymaybeannexed . . . * , . .51
Illustrations ... ... . • . 52
Property and debts upon division of territory . , • • . 58
TABLE OF CONTENTS. IX
CHAPTER IV.
CONSTITUTIONAL LIMITATIONS UPON LEGISLATIVE POWER
OVER PUBLIC CORPORATIONS.
In general . . . • . • § 5i
General laws ...........55
The requirement of a "uniform system of government" ... 56
Illustrations . . . . . . .. . • .57
The requirement that " laws of a general nature shall have uniform
operation throughout the state " . . . . . . .58
Illustrations ........... 59
Local-option laws 60
Classification «.• ...61
Class containing but one member . . . . . ..63
Geographical conditions . ..63
Population .....'64
Illustrations . . .. . • . . . • .65
Possible accession to a class 66
Legislation regulating the "business," "affairs" and "internal af-
fairs " of corporations .........67
The prohibition of special legislation " where a general law can be
made applicable " ....68
Amendment or repeal of existing special charters .... 69
BOOK II.
THE POWERS OF PUBLIC CORPORATIONS.
CHAPTER V.
GENERAL POWERS — NATURE AND CONSTRUCTION.
CHAPTER VL
PARTICULAB POWERS.
CHAPTER VIL
PARTICULAR POWERS — CONTINUED.
CHAPTER VHL
PABTTCULAR POWERS — CONTINUED.
CHAPTER IX.
MUNICIPAL SECURITIES.
CHAPTER X.
MUNICIPAL INDEBTEDNESS.
CHAPTER Y.
GENERAL POWERS — NATURE AND CONSTRUCTION.
The general principle . . . . . . . . . .§70
Comments upon the rule .....•••.71
Construction 72
X TABLE OF CONTENTS.
Usage . . § 73
Delegation of powers . . . . 74
Illustrations •••••75
CHAPTER YL
PARTICULAR POWERS.
Manner of granting powers « . 76
Statutory requirements •••.77
The exercise of power beyond corporate limits . . • , . 78
Power to enact ordinances ... 79
General welfare clause .80
L MISCELLANEOUS POWERS.
Power to contract ..81
Letting contracts to lowest bidder ....... 82
Remedy of bidder 83
Contracts for a term of years ,..84
Exclusive privileges 85
Power to borrow money .........86
Compromise and arbitration ........87
Powers of school boards — Text-books ...... 88
IL POLICE POWERS.
Nature and scope of the police power , . 89
Regulation of occupations and amusements 90
The preservation of health 91
Nuisances 92
Regulation of wharves ... 93
Licenses .......94
Markets . . . .95
Prevention of fires 96
Care of indigent and infirm ........ 9V
CHAPTER YIL
PARTICULAR POWERS— CONTINUED.
L POWERS RELATING TO STREETS AND HIGHWAYS.
Power over streets . , . . 98
Rights of abutting owners . . . . . . , . . ^99
The proper uses of a street ......... 100
Obstructions «... 101
Temporary uses of a street . . . . , , . . . 102
Power to improve streets 103
Gas and water pipes • . . 10*4
Projecting doors, windows and porches ...... 105
Railroads in streets . , .106
Conditions imposed ...•• 107
Telegraph and telephone poles ........ 108
TABLE OF CONTENTS. XI
Additional servitudes — Compensation to abutting owners . . § 109
Railways as additional burdens 110
Telegraph and telephone poles as additional burdens .... Ill
H. TAXATION AND SPECIAL ASSESSMENTS.
Power of taxation • 113
Nature of special assessments ........ 113
Their constitutionality 114
Purposes for which local assessments may be levied . • . .115
Method of apportionment .-««•••••• 110
By benefits . 117
The frontage rule . . 118
Property exempt from taxation • • . 119
Collection of assessments . • • . 120
Personal liability for assessments ....... 121
CHAPTER YIU.
PARTICULAR POWERS — CONTINUED,
L THE POWEB OF EMINENT DOMAIN.
Definition 123
May be delegated 123
What may be taken .......... 124
Must be for public use 125
Property already appropriated to public use . . . . .126
Meaning of " property " 127
What constitutes a taking 128
The proceedings ........... 129
The tribunal 130
Notice 131
The compensation .......... 132
Consequential injuries ......... 133
Benefits 134
Manner of payment . . . . .. . . , . 135
Right of appeal 136
H JUDICIAL POWEB.
Power to establish courts . . . . . . . • . 137
Jurisdiction ••••«. 138
Qualifications of judges and jurors . 139
Procedure — Jury trial 140
HI. COBPOBATE OB PBIVATE POWEBS.
In general . 141
Right to hold property . . . . . . . .. 142
Parks and cemeteries . . . . . . .. . . 143
Wharves and ferries '••••. 144
"\Vater and lights 145
Power to own and operate gas, light and water plants . . . 146
Xll TABLE OF CONTENTS.
Nature of the power . . . . . . . . . . § 147
The acquisition of the plant . 148
Contracts between municipalities and franchise companies • . 149
CHAPTEK IX.
MUNICIPAL SECURITIES.
L WARRANTS AND ORDERS.
Power to issue • . 150
Form 151
Negotiability .153
Effect of acceptance 153
Presentment and demand • . 154
Payable out of a particular fund . . . . • . .155
Rights of indorser .......... 156
Defenses 157
IL MUNICIPAL BONDS.
Power of public gwcm-corporations ....... 158
Power of municipal corporations ....... 159
Ratification of illegal bonds ........ 160
Liability for money received ........ 161
Right to restrain issue of illegal bonds ...... 162
a. PURPOSES FOR WHICH BONDS MAY BE ISSUED.
Must be a public purpose ......... 163
What are public purposes ......... 164
Railways 165
Private purposes 166
How determined 167
b. CONDITIONS PRECEDENT TO LEGAL ISSUE.
In general 168
Consent of the people .. . . .. . . . . 169
Manner of obtaining consent . . . . . . . . 170
Majority of voters 171
Location and completion of roads . . . . . . . 172
c. ESTOPPEL.
When estoppel arises 178
Authority of officers 174
Estoppel by conduct — Illustrations ....«..* 175
By judgment 176
d. RIGHTS OF BONA FIDE HOLDERS.
Who are such 177
Defenses available against a bonafidc holder ..... 178
Recitals in bonds . 179
Effect of recitals — Continued ........ 180
Authority of officials to make recitals 181
Recital that bonds have been issued "in conformity to law" . . 182
Excessive issues . . . 183
TABLE OF CONTEXTS. XH1
CHAPTEK X.
MUNICIPAL INDEBTEDNESS.
Power to incur debts ....*•••••§ 184
The meaning of indebtedness .....••• 185
Contingent obligations . . . . . • • • • 186
Contracts requiring annual payments . . . . • 187
Anticipation of revenues •• 188
BOOK III.
OF THE MODE AND AGENCIES OF CORPORATE
ACTION.
CHAPTER XL
OF THE MANNER OF EXERCISING CORPORATE POWER.
CHAPTER XIL
OF THE FORM AND ENACTMENT OF ORDINANCES.
CHAPTER XIIL
THE VALIDITY OF ORDINANCES.
CHAPTER XIV.
GOVERNING BODIES, OFFICERS AND AGENTS.
CHAPTER XI.
OF THE MANNER OF EXERCISING CORPORATE POWER.
Charter provisions § 189
Meaning of terms .......... 190
Statutory directions 191
Procedure in the enactment of ordinances 192
Where no mode is prescribed 193
Illustrations . . 194
CHAPTER XIL
OF THE FORM AND ENACTMENT OF ORDINANCES.
The form 195
The title . . . . .196
The enacting clause . 197
The penalty 198
Need not recite authority 199
Council meeting 200
Introduction — Notice 201
Readings ; . . 202
Suspension of the rules . 2C3
Presumption as to regularity ........ 204
Signing £05
XIV TABLE OF CONTENTS.
Approval § 206
Approval — Illustrations ......... 207
The executive veto 208
Nacessity for publication . ........ 209
Publication, when directory . 210
Ultra vires acts of officials 211
Manner of publication -213
Designation of paper 213
Location of paper — "Printed and published in the city" . . . 214
Manner and sufficiency ......... 215
Distinction between publication and notice . . . . . 216
Time and period 217
Proof of publication 218
CHAPTER XIII.
THE VALIDITY OF ORDINANCES.
General statement 219
Under express power .......... 220
Motives of legislative body 221
Ordinances valid in part ......... 222
Nature of an ordinance . . 223
Injunctions — Invalid ordinances . . . . . . . 224
L GENERAL PRINCIPLES GOVERNING VALIDITY.
Must conform to charter 225
Must be constitutional . . . 226
Must conform to law 227
Must not contravene common right 228
Must be general and impartial 229
Must not be oppressive 230
Must be reasonable . • . 231
Reasonableness a question for the court 232
Presumption of reasonableness 233
IL ILLUSTRATIONS OF VALID AND INVALID ORDINANCES.
Laying pipes in streets ......... 234
Location and speed of vehicles 235
Handling of trains 236
Regulation of street railways . . . . . . . * 237
Parades, music and speaking in public places 238
Licenses 239
Discrimination against non-residents ... . . . . 240
Regulation of markets . 241
Regulation of liquor traffic ' 242
Fire regulations 243
Quarantine regulations — Second-hand clothing . . . .244
Hotel runners and hack men 243
Miscellaneous decisions . . , 246
TABLE OF CONTEXTS. XV
ITL ORDINANCES WHICH PROHIBIT ACTS WITHOUT THE CONSENT OF CER-
TAIN OFFICIALS.
General statement ..§ 247
Cases sustaining such ordinances . . . . . . . 248
Delegation of authority ......... 249
Nature of prohibited acts 250
Uniform conditions — Unjust discrimination ..... 251
CHAPTEK XIY.
GOVERNING BODIES, OFFICERS AND AGENTS.
Distribution of powers .. . 252
The corporate meeting 253
Notice of corporate meetings ........ 254
The common council 255
Place of meeting 256
Majority and quorum 257
Who are officers 258
Election and appointment 259
Qualifications 260
Conditions precedent to entering upon an office .... 261
Relation of officer to corporations 263
Incompatible offices ...•. 263
Illustrations 264
Officers de facto 265
Officers de facto — Continued 266
Compensation 267
Compensation — De facto officers ....... 268
Increase of salary — Misdemeanor . . . . . . . 269
Compensation of employees — Attorneys ...... 270
The mayor 271
Control by the courts . 272
Holding over after expiration of term ...... 273
Resignation ............ 274
Amotion ............. 275
Removal — Express authority — Proceedings ..... 276
Personal liability on contracts ........ 277
Liability in tort 278
Liability of officers acting judicially . . . . . . - 279
Liability of recorder of deeds 280
Liability of sheriff . .......... 281
Liability of highway officers ........ 282
Liability of various officers ........ 283
Liability for loss of public funds ...*... 284
Manner of trying title to an office ...... 285
TABLE OF CONTENTS.
BOOK IV.
THE LIABILITIES OF PUBLIC CORPORATIONS.
CHAPTER XV.
LIABILITY ON CONTRACTS.
CHAPTER XVI.
LIABILITY FOB TOET — GOVERNMENTAL AND CORPORATE DUTIES.
CHAPTER XVIL
MUNICIPAL DUTIES RELATING TO GOVERNMENTAL AFFAIRS.
CHAPTER XVIII.
THE CONSTRUCTION AND CARS OF PUBLIC WORKS.
CHAPTER XIX.
ACTIONS AND PROCEEDINGS.
CHAPTER XY.
LIABILITY ON CONTRACTS.
General liability ...§ 286
Presentation and demand 287
Doctrine of ultra vires 288
Estoppel — Contract executed by one party 289
Contracts within scope of general powers • 290
Contract in part ultra vires 291
Liability on implied contract 292
Illustrations 293
Right to recover back illegal taxes 294
Payment must be compulsory 295
Voluntary payment 296
CHAPTER XYI.
LIABILITY FOR TORT — GO VERNMENT AL AND CORPORATE
DUTIES. *
Nature of corporation • . 297
Nature of duty 298
Discretionary powers 299
Imposed and assumed duties 300
Liability for acts of agents — Respondeat superior . . . -.301
Ultra vires torts 802
Ratification of ultra vires acts . . . . . . . . 303
Increase of liability by contract 304
General rules 805
TABLE OF CONTENTS. XV 11
L SOLELY GOVERNMENTAL Durns.
Definition . . ... . . . • • • • • § 306
Neglect to enact or enforce laws ...•••• 807
Suspension of ordinances ......... 308
Liability for acts of a mob 309
Acts of police officers .......... 310
Prevention of fires 311
Destruction of property to prevent spread of fire .... 313
Acts of firemen 313
Acts of board of health — Care of hospital ...... 314
Care of criminals .......... 315
Care of the indigent 316
Care of school buildings 317
IL SOLELY CORPORATE DUTIES.
Rule of liability for negligence ........ 318
As owner of property 319
Illustrations — Wharves 320
Private business enterprises — Gas and water ..... 321
CHAPTEK XVII.
MUNICIPAL DUTIES RELATING TO GOVERNMENTAL AFFAIRS.
General statement . . . . • « .-• • . 323
Common-law duty to repair highways 323
Conflicting rules — Chartered municipalities ..... 324
Liability of counties and towns ........ 325
Extent of duty to care for highways 326
Lighting the streets 327
Necessary obstructions 328
Illustrations 329
Lack of funds as a defense ......... 330
Liability for acts of licensees 331
Care of sidewalks 332
Obstructions on sidewalks «... 333
Ice and snow on highways .. . . . . . . . 334
Care of bridges 335
Notice .336
CHAPTER XYILL
THE CONSTRUCTION AND CARE OF PUBLIC WORKS.
Care of public property 337
Surface waters 338
Drainage and sewers 339
The plan of a public work . . . • . .. . . . 340
Direct injury to property ......... 341
The construction and care of sewers ....... 342
Consequential damages 343
XV'ili TABLE OF CONTENTS.
CHAPTER XIX.
ACTIONS AND PROCEEDINGS.
The right to sue and be sued . . . . . * • .§ 344
Notice of claim ........... 345
Mandamus • 346
Mandamus to enforce duties toward creditors ..... 347
Further illustrations of the use of mandamus 348
Quowarranto 349
Remedy in equity 350
Certiorari 351
Levy of execution on corporate property ...... 352
Liability to garnishment ...- 353
TABLE OF CASES CITED.
References are to pages.
Aaron v. Broils (64 Tex. 316, 53 Am.
St. Rep. 764), 253.
Abbett v. Johnson Co. (114 Ind. 61), 6.
Abbott v. Kitnball (19 Vt. 551), 47
Am. Dec. 708), 251.
Abel v. Minneapolis (Minn., 70 N. W.
Rep. 851), 313.
Adams v. Mayor, etc. (29 Ga. 56), 199!
Adams v. Selina (48 Pac. Hep. 918),
279.
Adams v. Smith (6 Dak. 94), 60.
Adams v. Tyler (121 Mass. 330), 326.
Addis v. Pittsburgh (85 Pa. St. 379),
77.
Agnew v. Corunna (55 Mich. 428, 54
Am. Rep. 388), 297.
Ah Yon, In re (83 CaL 99, 11 L. R A.
408), 182.
Aikman v. Edwards (55 Kan. 751, 30
L. R. A. 149), 41.
Alabama R Co. v. Kidd (29 Ala.
221), 3.
Aldrich v. Gorham (77 Me. 287), 291.
Aldrich v. Tripp (11 R L 141, 23
Am. Rep. 434), 288.
Alexander v. Milwaukee (16 Wis.
264), 313.
Alexandria, etc. Ry. Co. v. Alex-
andria (75 Va. 780), 120.
Allamango v. Albany County (25
Hun, 551), 284.
Alleghany County v. Gibson (90 Pa.
St. 387, 35 Am. -Rep. 607), 278, 279.
Allegheney v. Millville, etc. R Co.
(159 Pa. St. 411, 28 AtL Rep. 202),
102.
Allegheny v. Zimmerman (95 Pa, St.
287, 40 Am. Rep. 649), 101.
Allegheny County v. Paris (93 Va.
615, 25 S. E. Rep. 882), 258.
Allen v. Baltimore & Ohio Ry. Co.
(114 U. S. 311), 32a
Allen v. Burlington (45 Vt. 22), 2C6.
Allen v. Chippewa Falls (52 Wis. 430,
38 Am. Rep. 748), 304, 310.
Allen v. Decatur (23 III 332), 27a
Allen v. Drew (44 Vt 174), 110.
Allen v. Jay (60 Me. 124, 11 Am. Rep.
185), 154
Allen v. Jones (41 Ind. 438), 120.
Allen v. La Fayette (89 Ala. 641, 9
L. R A. 497), 81, 133, 148, 151.
Allen v. Louisiana (103 U. S. 80),
156.
Allentown v. Henry (73 Pa. St. 404),
112.
Allison v. Juniata Co. (50 Pa. St. 351),
146.
Alney v. Pierce (1 R L 292). 226.
Altgeld v. San Antonio (81 Tex. 436),
81, 108.
Altnow v. Town of Liberty (30 Minn.
186, 44 Am. Rep. 191), 293.
Alton v. Mulledy (21 HL 76), 176.
Altoona v. Bowman (171 Pa. St 307),
177.
Alvord v. Syracuse Savings Bank
(98 N. Y. 599, 8 Am. & Eng. Corp.
Cas. 598), 161.
Amberson Ave., In re (36 Atl. Rep.
354), 113.
American T. & T. Co. v. Pearce (71
Md. 535, 7 L. R. A. 200), 107.
Ames v. Lake Superior, etc. Co. (21
Minn. 241), 124.
Amey v. Watertown (130 U. S. 301),
sia
Ampt v. Cincinnati (35 L. R A. 737),
134.
Anderson, In re (109 N. Y. 554), 79.
XX
TABLE OF OASES CITED.
References are to pages.
Anderson v. Board (122 Mo. 61, 26 L.
R. A. 707). 77.
Anderson v. City of Wellington (40
Kan. 173, 2 L. R. A. 110, 10 Am.
St. Eep. 175), 69, 97, 201, 206, 214,
215, 216.
Anderson v. East (117 Ind. 126, 2 L.
R. A. 712), 271, 277, 292.
Anderson v. Insurance Co. (88 Iowa,
579), 171.
Anderson v. Santa Anna Co. (116
U. S. 356), 151.
Anderson v. Trenton (42 N. J. L. 486),
53, 60.
Anderson v. Wilmington (Del., 19
AtL Rep. 509), 292.
Andrews v. Nat F. & P. Works (C.
C. A., 61 Fed. Rep. 782), 136.
Andrews v. Portland (79 Me. 84, 10
Am. St. Rep. 280), 236, 237.
Anne Arundel County v. Diwell (54
Md. 350, 39 Am. Rep. 393), 270,
293.
Anthony v. Adams (1 Met. 284), 272.
Anthony v. Jasper Co. (4 Dill. C. C.
136), 163.
Argenti v. San Francisco (16 Cal. 255),
151, 260, 262.
Arkadelphia Lumber Co. v. City of
Arkadelphia (56 Ark. 370, 19 S.
W. Rep. 1003), 180.
Armour v. Concord (48 N. H. 211, 97
Am. Dec. 605), 278.
Armstrong v. Ackley (71 Iowa, 76),
301.
Armstrong v. St. Paul (30 Minn. 299),
314.
Arnold v. Hudson R. Co. (55 N. Y.
661), 123.
Arnott v. Spokane (6 Wash. 442),
145.
Aron v. City of Wausau (74 N. W.
Rep. 354), 279.
Arras v. Stukely (2 Mod. 260), 237.
Ashley v. Calliope (71 Iowa, 466), 44.
Ashley v. Port Huron (35 Mich. 296),
311.
Askey v. Hals Co. (54 Ala, 639), 5.
Aspinwall v. Daviess Co. (22 How.,
U. S., 160, 364), 164.
Assessment for Grad. Prior Av., In re
(71 N. W. Rep. 27), 116.
Aston v. Newton (134 Mass. 507), 294.
Astor v. Mayor (66 N. Y. 567), 31.
Astor v. New York (62 N. Y. 567), 26.
Atchison St. R. Co. v. Mo. Pac. "R. R.
Co. (31 Kan. 660), 101.
Atkins v. Phillips (26 Fla. 281, 10 L.
R. A. 158). 182.
Atkins v. Town of Randolph (31 Vt.
226), 39.
Atkinson v. Bartholow (4 Kan. 124),
65.
Atlanta v. First Presb. Church (86
Ga. 730, 12 L. R. A. 852), 115, 116.
Atlanta v. Halleday (96 Ga. 546, 26
S. E. Rep. 509), 198.
Atlantic W. W. v. Atlantic City (48
N. J. L. 378), 79.
Atlantic City W. W. v. Atlantic City
(39 N. J. Eq. 367), 138.
Atlantic City W. W. v. Read (49 N.
J. L. 558, 50 N. J. L. 665), 169, 174,
Attaway v. Cartersville (68 Ga. 740),
280.
Attorney-General v. Boston (123
Mass. 460), 323.
Attorney-General v. Common Coun-
cil (70 N. W. Rep. 450), 30, 32.
Attorney-General v. Common Coun-
cil of Detroit (71 N. W. Rep. 632,
37 L. R. A. 211), 230.
Attorney-General v. Detroit (26 Mich.
262), 323.
Attorney-General v. Jochim (99 Mich.
358, 23 L. R A. 699), 245.
Attorney-General v. Lathrop (24
Mich. 235), 31.
Attorney-General v. Marston (66
N. H. 485, 13 L. R. A.^570), 230.
Attorney-General v. Northampton
(143 Mass. 589), 324.
Atwell v. Zeluff (36 Mich. 118), 266.
Aurora v. West (22 Ind. 88), 163.
Austin v. Austin Cemetery Ass'n
(87 Tex. 330), 197, 202.
Austin v. Austin Gas Co. (69 Tex.
180), 108.
Austin v. Johns (62 Tex. 179), 23a
Austin v. Nalle (85 Tex. 520), 150.
TABLE OF CASES CITED.
XXI
References are to pages.
Austin v. Seattle (2 Wash. 667), 172.
Austin v. Vrooman (128 N. Y. 229, 14
L. R A. 138), 249.
Austin v. Wilson (4 Tex. 400), 256.
Ayers, Appeal of (122 Pa. St. 266), 55,
56, 6a
B.
Babcock v. Fond du Lac (58 Wis.
231), 265.
Back v. Carpenter (29 Kan. 349),
20.
Backus v. Detroit (49 Mich. 110, 43
Am. Rep. 447\ 89.
Backus v. Lebanon (11 N. H. 19, 35
Am. Dec. 466), 125.
Bacon v. Savannah (86 Ga. 301), 114.
Badeau v. United States (130 U. S.
439), 230.
Badger v. United States (93 U. S.
599), 242, 318.
Bailey v. Mayor (3 Hill, N. Y., 581), a
Bailey v. New York (3 Hill, 531, 30
Am. Dec. 669), 3, 139, 267, 287.
Bailey v. Tabor (5 Mass. 286, 4 Am.
Dec. 57), 163.
Bailey v. Woburn (126 Mass. 416), 121.
Baker v. Johnson (41 Ma 15), 319.
Baker v. Marshall (15 Minn. 177, GiL
136), 316.
Baker v. Portland (58 Me. 199, 10 Am.
L. Reg., N. S., 559X 195.
Baker v. Seattle (2 Wash. 576), 169.
Baker v. Steamboat (14 Iowa, 214), 65.
Balch v. County Com'rs (103 Mass.
106), 121.
Baldwin v. Smith (82 I1L 162), 19&
Ball v. Woodbine (61 Iowa, 83, 47
Am. Rep. 805), 273, 277.
Baltimore v. Cemetery Co. (7 Md.
517), 115.
Baltimore v. Gill (31 Md. 375), 170,
323.
Baltimore v. Hughes (1 Gill & J.
265), 114.
Baltimore v. Keeley Institute (81 Md.
106, 27 L. R A." 647), 94, 317.
Baltimore v. Keyser (72 Md. 106),
79.
c
Baltimore v. Marriott (9 Md. 160),
292,
Baltimore v. O'Donnell (54 Md. 110),
297.
Baltimore v. Poultney (25 Md. 18),
221.
Baltimore v. Proprietors (7 Md. 517),
116.
Baltimore v. Radicke (49 Md. 217),
197, 201.
Baltimore v. Root (8 Md. 95), 326.
Baltimore v. State (15 Md. 376), 30.
Baltimore, etc. R. Co. v. M'Gruder
(34 Md. 79, 6 Am. Rep. 310), 123.
Baltimore, etc. Ry. Co. v. Spring (80
Md. 510, 27 L. R. A. 72), 152, 154,
Bancroft v. Cambridge (126 Mass.
438), 121.
Bangor Sav. Bank v. Stillwater (49
Fed. Rep. 721), 151.
Bank v. Dibrell (3 Sneed, Tenn., 379),
326.
Bank v. Mayor (7 Ohio, pt 2, 31), 149.
Bank v. School -District No. 53 (3 N.
Dak 496, 28 L. R A. 642), 163.
Bank of United States v. Planters'
Bank (9 Wheat, U. S., 904), a
Bankhead v. Brown (25 Iowa, 545),
121.
Barber v. Abendroth (102 N. Y. 406),
i-r.
Barber Asphalt Pavement Co. v.
Hunt (100 Ma 22, 18 Am. St. Rep.
530), 77, 186.
Barbier v. Connelly (113 U. & 27), 85,
199, 213, 214.
Barker v. People (3 Cowen, N. Y.,
685, 15 Am. Dec. 322), 225.
Barling v. West (29 Wis. 307), 9L
Barnard v. Knox Co. (37 Fed. Rep.
563, 2 L, R A. 426), 170.
Barnert v. Patterson (48 N. J. L. 395),
222.
Barnes v. Chicopee (138 Mass 67, 52
Am. Rep. 259), 296.
Barnes v. District of Columbia (91
U. S. 540), 18, 270, 2^.
Barnes v. Palestine (50 Tex. 538), 4.
Barnes v. Williams (53 Ark. 205, 13
S. W. Rep. 845), 238.
XX11
TABLE OF CASES CITED.
References are to pages.
Barnett v. Dennison (145 U. S. 138),
160, 163.
Barnett v. Newark (28 Iowa, 62), 188.
Barnum v. Oilman (27 Minn. 466, 38
Am. Dec. 304), 230, 322.
Barr v. Kansas City (105 Mo. 550),
296.
Barre Ry. Co. v. Montpelier, etc. Ry.
Co. (61 Vt. 1, 4 L. R. A. 785), 121.
Barren v. Detroit (94 Mich. 601, 19 L.
R, A. 452), 286.
Barry v. Good (89 Cal. 215), 82.
Bartle v. Des Moines (38 Iowa, 414),
169.
Bartlett v. Crosier (17 Johns. 449, 8
Am. Dec. 428), 252.
Barton v. Pittsburgh (4 Brew., Pa.,
373), 184.
Barton v. Syracuse (36 N. Y. 54), 304.
Barton Co. v. Walser (47 Mo. 189), 5.
Bassett v. Atwater (65 Conn. 355, 32
L. R. A. 575), 316.
Bates v. Bassett (60 Vt. 530, 1 L. R.
A. 66), 134.
Bates v. Houston (37 S. W. Rep. 383),
284.
Bates v. Westborough (151 Mass. 174,
23 N. E. Rep. 1070, 7 L. R. A. 156),
312, 313.
Bauer v. Franklin Co. (51 Mo. 205),
145.
Bauer v. Rochester (35 N. Y. State
Rep. 959, 12 N. Y. Sup. 418), 295.
Bauman v. Campau (58 Mich. 444),
268.
Baumgartner v. Hastings (100 Ind.
575), 88, 93.
Baxter v. Turnpike Co. (10 Lea,
Tenn., 488), 4.
Bayer v. Hoboken (44 N. J. L. 131),
189.
Beach v. GaylorJ (43 Minn. 466),
308.
Beach v. Leahy (11 Kan. 30), 7, 63.
Beard v. Hopkinsville (Ky., 23 L. R.
A. 402), 170, 173.
Beardon v. Madison (73 Ga. 184), 195.
Beardsley v. Hartford (50 Conn. 529,
47 Am. Rep. 677), 291, 302.
Beardsley v. Smith (10 Conn. 368, 41
Am. Dec. 147), 325.
Beardsley v. Steinberg (49 Pac. Rep.
499), 145.
Beatrice v. Leary (45 Neb. 149, 50
Am. St. Rep. 547), 310.
Beaumont v. Wilkesbarre (142 Pa.
St. 198), 114
Beaver Creek v. Hosbergs (52 Mich.
528), 220.
Becker v. Keokuk Water Works (79
Iowa, 419), 275.
Becker v. Philadelphia, etc. R. Co.
(177 Pa. St. 252, 25 L. R. A. 583),
127.
Becker v. Washington (94 Mo. 375),
186.
Bedell, Ex parte (20 Mo. App. 125),
190.
Beecher v. People (38 Mich. 289, 31
Am. Rep. 316), 101.
Beiling v. Evansville (144 Ind. 644,
42 N. E. Rep. 621), 86.
Belcher's S. R. Co. v. Grain Elevator
Co. (101 Mo. 192, 13 S. W. Rep.
822), 134
Belfast v. Brooks (60 Me. 569), 157.
Belknap v. Louisville (Ky., 34 L. R.
A. 256), 157.
Bell, Ex parte (32 Tex. Cr. Rep. 308,
42 Am. St. Rep. 778), 200.
Bell v. Foutch (21 Iowa, 119), 97.
Bell v. Mobile, etc. Ry. Co. (4 Wall.
598), 154
Bell v. York (31 Neb. 842, 48 N. W.
Rep. 878), 302.
Belleville v. Citizens' Horse Car Co
(153 111. 171, 26 L. R. A. 681), 194
Belo v. Forsyth Co. (76 N. C. 489), 155.
Belton v. Boston (54 N. Y. 245), 303.
Bennett's Appeal (65 Pa. St. 242), 2.
Bennington v. Park (50 Vt. 178)» 161.
Benson v. Green (80 Ga. 230), 250.
Benson v. Mayor (10 Barb., N. Y.,
225), 136.
Bentley v. Board of Co. Com'rs (25
Minn. 259), 67.
Benton v. Trustees of Boston City
Hospital (140 Mass. 113), 284
Berford v. Grand Rapids (53 Mich.
98, 51 Am. Rep. 105), 277.
Bergman v. Cleveland (39 Ohio St.
651), 210.
TABLE OF CASES CITFD.
References are to page*.
Bergman v. St Louis, etc. R Co. (88
Ma 678), 181.
Berlin v. Gorham (34 N. H. 266), 18.
Bermonsey v. Ramsey (L. R 6 C. P.
247), 117.
Bernards Tp. v. Morrison (133 U. S.
523), 165, 167.
Bessey v. Unity (65 Me, 342), 19.
Bethune y. Hughes (28 Ga. 560, 73
Am. Dec. 7£9), 92.
Betz v. Limingi (46 La. Ann. 1113, 4G
Am. St Rep. 344), 299.
Bickenstaff, In re (70 CaL 35), 214.
Bieling v. Brooklyn (120 N. Y. 98),
302.
Bier v. Grell (30 W. Va, 96, 8 Am. St.
Rep. 17), 237.
Bigelow v. Topliff (25 Vt 282), 251.
Biggs v. McBride (17 Oreg. 640, 5 L.
R, A. 115), 319.
Billings v. Lafferty (31 111. 318), 25a
Billingsley v. State (14 MdL 369), 248.
Bills v. Goslien (117 Ind. 221, 3 L. R
A. 261), 176; 182, 186, 195.
Birge v. Chicago, etc. Ry. Co. (65
Iowa, 440), 125.
Birmingham v. Alabama, etc, Ry.
Co. (98 Ala. 134, 13 So. Rep. 141),
206.
Birmingham v. Lewis (92 Ala, 352, 9
So. Rep. 243), 298.
Bishop v. Macon (7 Ga. 200, 50 Am.
Dec. 400), 281.
Bissell v. Davidson (65 Conn. 183, 29
L. R. A. 251), 83, 87.
Bissell v. Jeffersonville (24 How.,
U. S., 287), 161, 165,
Bissell v. Kankakee (64 HL 249, 21
Am. Rep. 554), 154, 160, 163.
Bittenhaus v. Johnson (92 Wis. 595,
32 L. R, A. 380), 84.
Bitting v. Commonwealth (12 AtL
Rep. 29), 64.
Bittinger v. Bell (65 Ind. 445), 157.
Bizzell, In re (112 Ala, 210, 21 So.
Rep. 371), 194,
Black v. Columbia (19 S. C. 412, 45
Am. Rep. 785), 275, 281.
Black v. Cohen (52 Ga. 621), 151.
Blair v. Cummings (111 U. S. 363),
154.
Blair v. West Point Precinct (3 Mo
Crary, 459), 19, 20.
Blanchard v. Bissell (11 Ohio St 103),
18, 41, 74, 177, 180, 186, 187.
Blandin v. Burr (13 Cal. 343), 39, 40.
Bledsoe v. Gary (95 Ala. 70, 10 So.
Rep. 502), 131.
Blen v. Bear River, etc, Co. (20 CaL
60, 81 Am. Dec, 132), 150.
Bliss v. Hosmer (15 Ohio St 44), 120.
Blizzard v. Danville (175 Pa. St. 479),
312.
Blodgett v. Boston (8 Allen, 237), 301.
Bloodgood v. Mohawk, etc. R Co. (18
Wend. 9, 31 Am, Dec. 313), 129.
Bloom v. Xenia (32 Ohio St. 4<il), 177,
185.
Bloomfield v. Charter Oak Bank (121
U. S. 121), 11, 13, 220, 325.
Bloomington v. Latham (142 I1L 462,
18 L. R A. 487), 202.
Bloomington v. Richardson (38 I1L
60), 206,
Bluffton v. Silver (63 Ind. 262), 322.
Bluffton v. Studabaker (106 Ind.
129X65.
Board v. City of Springfield (63 III
66X33.
Board v. Harrell (Ind., 1807, 46 N. E.
Rep. 124), 169.
Board v. Leahy (24 Kan. 54), 59.
Board v. Minor (23 Ohio St 211, 13
Am. Rep. 233), 8i
Board v. Stevenson (46 N. J. L, 173),
47.
Board of Commissioners v. Board of
Commissioners (26 Kan. 181, 201),
171.
Board of Commissioners v. Duprez
(87 Ind. 509X 272.
Board of Commissioners v. Mitchell
(Ind., 15 L, R A. 520), 22$.
Board of Commissioners v. Platt (C.
G A., 79 Fed. Rep. 572), 162, 172.
Board of Education v. Blodgett (155
111. 441, 31 L. R A. 70), 148.
Board of Education v. Minor (23
Ohio St 211, 13 Am. Rep. 233X
sa
Board of Education v. State (26 Kan.
44), 152.
TABLE OF CASES CITED.
References are to pages.
Board of Park Commissioners v.
Common Council of Detroit (28
Mich. 237), 5.
Board of Trade TeL Co. v. Barnet
(107 111. 507), 107.
Bodge v. Philadelphia (167 Pa. St.
492), 289.
Boehm v. Baltimore (61 Md. 259), 91.
Bogaert v. Indianapolis (13 Ind. 134),
86.
Bogie v. Waupun (75 Wis. 1), 303.
Bohan, In re (115 CaL 372, 36 L. R A.
618), 86.
Bohen v. Waseca (32 Minn. 176, 50
Am. Rep. 564), 101, 302.
Bolles v. Brimfield (120 U. S. 759),
151.
Bolton v. Velines (26 S. E. Rep. 847),
280.
Bonaparte v. Camden, etc. R. Co. (1
Bald. 205), 3.
Bonds of Madeira Irrigation District,
In re (92 CaL 296, 14 L. R. A. 755),
111.
Bonner v. State (7 Ga. 473), 256.
Boom Co. v. Patterson (98 U. S. 403),
126.
Boro v. Phillips Co. (4 Dill. C. C. 216),
147.
Borough y. Alabama, etc. Ry. Co.
(Ala., 13 So. Rep. 141), 205.
Boss Machine Works v. Park Co.
Com'rs (115 Ind. 244), 259.
Boston v. Baldwin (139 Mass. 315), 131.
Boston, etc. Co. v. Boston (4 Mete.
181), 264
Boston & M. R. R. Co. v. Lowell, etc.
R. Co. (124 Mass. 368), 122.
Boston Belting Co. v. Boston (149
Mass. 44), 311.
Boston Seaman's Friend Society v.
Boston (116 Mass. 181, 19 Am.
Rep. 153), 116.
Bott v. Pratt (33 Minn. 823), 195.
Boucher v. New Haven (40 Conn.
456), 295.
Boutte v. Emmer (43 La. Ann. 980,
15 L. R A. 63), 247.
Bowditch v. Boston (101 U. S. 16), 281.
Bowdoinham v. Richmond (6 Me. 112,
19 Am. Dec. 197), 44
Bowen v. Greensboro (79 Ga. 709),
157.
Bowen v. Mauzy (117 Ind. 258), 89.
Bowery Nat. Bank v. Wilson (122
N. Y. 478, 9 L. R. A. 706), 235.
Bowes T. Boston (155 Mass. 344, 15 L.
R A. 365), 297.
Bowling Green v. Carson (10 Bush,
Ky., 164), 209.
Bowman v. St. John (43 111. 337), 182.
Boyd v. Chambers (75 Ky. 140), 130.
Boyd v. Insurance Patrol (113 Pa. St.
269), 283.
Boyden v. United States (80 U. S.
17), 254
Bradley v. Fisher (13 Wall., U. S.,
385), 249.
Bradley v. Rochester (54 Hun, N. Y.,
140), 214
Bradwell v. Illinois (16 Wall. 130),
224
Brady v. New York (20 N. Y. 312), 78.
Bray v. Wallingford (20 Conn. 416),
326.
Breinger v. Beloibere (44 N. J. L.
350), 198.
Brenham v. Brenham Water Co. (67
Tex 542), 69, 80, 138.
Brenhnm v. German Am. Bank (144
U. S. 191), 149, 150, 163.
Brennan v. City of St. Louis (92 Mo.
482), 297.
Brennan v. Guardians (L. R. 2 C. L.
42), 285.
Brewer v. Otoe Co. (1 Neb. 373), 148.
Brewster v. Syracuse (19 N. Y. 116), 39.
Brick Presbyterian Church v. New
York (5 Cow., N. Y, 538), 76.
Bridgeport v. Housatonic Ry. Co. (15
Conn. 475), 68, 151. ^
Bridgeport v. Railway Co. (36 Conn.
255), 109, 115, 116.
Briegel v. Philadelphia (135 Pa. St.
451, 30 Am. & Eng. C. C. 501), 306.
Briggs v. Lewiston (29 Me. 472), 265.
Brighton v. Toronto (12 U. C. 433), 209.
Bristol v. New Chester (3 N. H. 524),
44
Britton v. Steber (62 Mo. 370), 32.
Broadway Church v. McAtee (8 Bush,
Ky., 508, 8 Am. Rep. 408), 118.
TABLE OF CASES CITED.
XXV
References are to pagct.
Broburg v. Des Moines (63 Iowa, 523,
19 N. W. Rep. 340, 50 Am. Rep.
756), 303.
Brock v. Hishen (40 Wis. 674), 129.
Brodhead v. Milwaukee (19 "Wis. 624,
88 Arn. Dec. 711), 154
Brohme v. Monroe (106 Mich. 401, 64
N. Y. 204), 177.
Brooklyn, In re (143 N. Y. 596, 26 L.
R A. 271), 123, 141.
Brooklyn v. Breslau (57 N. Y. 591), 193.
Brooklyn v. Meserole (26 Wend., N. Y.,
132), 322.
Brooklyn Park Com'rs v. Armstrong
(45 N. Y. 234, 243, 244, 6 Am. Rep.
70), 35, 120, 207.
Brooks v. Baltimore (48 Md. 265), 109.
Brooks v. Hyde (37 CaL 366), 48.
Brooks v. Morgan (86 Mich. 576), 249.
Brookville v. Arthurs (130 Pa, St.
501), 292, 299.
Broughton v. Pensacola (93 U. & 268),
26, 29.
Brown v. Atchison (39 Kan. 54), 261.
Brown v. Bon Horn me Co. (1 S. Dak.
216, 46 N. W. Rep. 173), 15, 160,
163, 165, 166.
Brown v. Bradlee (156 Mass. 28, 15
L. R A. 509), 246.
Brown v. City of Cory (175 Pa. St
528, 34 Atl. Rep. 854), 174.
Brown v. Denver (7 Colo. 305), 63, 65.
Brown v. District of Columbia (127
U. S. 579), 222,
Brown v. Gates (15 W. Va. 131), 325.
Brown v. Guyandotte (12 S. E. Rep.
1207, 11 L. R. A. 121), 284.
Brown v. Ingalls Tp. (81 Fed. Rep.
485), 163.
Brown v. Jerome (102 111. 371), 130.
Brown v. Keener (74 N. C. 714), 87.
Brown v. Lester (21 Miss. 392), 253.
Brown v. Rundlett (15 N. H. 360).
247.
Brown v. Russell (166 Mass. 14, 43 N.
E. Rep. 1005, 33 L. R. A. 253), 223,
225.
Brown v. Turner (70 N. C. 93), 256.
Brown v. Vinalhaven (65 Me. 402),
284.
Brownell v. Greenwich (114 N. Y.
518, 4 L. R. A. 685), 165.
Browning v. Board (44 Ind. 11), 272.
Brownville v. Cook (4 Neb. 105), 196.
Brownville v. League (129 U. & 493),
3ia
Brugerman v. True (25 Minn. 123),
125.
Brumm's Appeal (Pa. Si, 12 AtL Rep.
855), 24.
Brunswick v. Braxton (70 Ga. 193),
292.
Bryan v. St Paul (33 Minn. 289), 270,
284
Bryant v. Robbins (7 Iowa, 258), 51.
Bryden v. Campbell (40 Md. 338), 250.
Bubridge v. Astoria (25 Oreg. 417, 42
Am. St Rep. 796), 187.
Buchanan v. Litchfield (102 U. S.
278), 161, 167.
Buck v. Eureka (109 CaL 405, 30
L. R A. 409), 238.
Buckner v. Gordon (81 Ky. 665), 225.
Buell v. Ball (20 Iowa, 282), 19a
Buell v. Buckingham (16 Iowa, 284),
22a
Buffalo, In re (68 N. Y. 167), 122.
Buffalo v. Bettinger (76 N. Y. 393),
257.
Buffalo v. Harling (50 Minn. 551, 52
N. W. Rep. 931), 315.
Buffalo v. New York, etc. Ry. Co.
(152 N. Y. 276, 46 N. E. Rep. 496),
195, 205.
Buffalo City Cemetery v. Buffalo (46
N. Y. SOS), 115.
Bulger v. Eden (82 Me. 352), 269, 272.
Bunch v. Edenton (90 N. C. 431),
292.
Bunting v. Willis (27 Grat 144, 21
Am. Rep. 338), 242, '
Burch v. Hardwicke (30 Grat 24),
30, 31.
Bureau of Sayre v. Phillips (148 Pa.
St 482, 24 Atl. Rep. 76), 208.
Burford v. Grand Rapids (53 Mich.
98, 51 Am. Rep. 105), 268, 299, 311.
Burg v. Chicago, etc. Ry. Co. (90
Iowa, 106, 48 Am. St Rep. 419),
205.
xx vi
TABLE OF CASES CITED.
References are to pages.
Burkholtz v. Dinnie (N. D., 1897, 72
N. W. Rep. 931), 171.
Burleson v. Reading (117 Mich. 115,
68 N. W. Rep. 294), 305.
Burlington v. Dennison (42 N. J. L.
165), 178.
Burlington Water Co. v. Woodward
(49 Iowa, 62), 173.
Burmeister, Petition of (76 N. Y. 174),
111.
Burmeister v. Howard (1 Wash. 207),
195.
Burnes v. City of Atchison (2 Kan.
454), 19.
Burnett v. Maloney (97 Tenn. 697, 34
L. R. A. 541), 148.
Burnham v. Fond du Lao (15 Wis.
193-211), 326.
Burns v. Bradford (137 Pa. St. 361, 11
L. R. A. 726), 293, 301.
Burns v. Cohoes (67 N. Y. 204), 309.
Burns v. Harper (59 111. 29), 326.
Burr v. Plymouth (48 Conn. 460),
303.
Burrill v. Augusta (78 Me. 118, 57
Am. Rep. 788), 282.
Burritt v. Commissioners of State
Contracts (120 III 322), 178, 182.
Burton v. Harvey Co. Bank (28 Kan.
390), 145.
Burwell v. Vance Co. (93 N. C. 73),
124.
Bush v. Portland (19 Oreg. 45, 20 Am.
St. Rep. 789), 99.
Butchers v. Crescent City (111 U. S.
746), 86.
Butler v. Passaic (44 N. J. L. 171),
178.
Buttrick v. Lowell (1 Allen, 172), 279.
Butz v. Cavanaugh (Mo., 38 S. W. Rep.
1102), 277.
Byers v. Com. (42 Pa. St. 89), 196.
0.
Cairncross v. Pewaukee (78 Wis. 66,
10 L. R A. 473), 291, 297.
Cairo, etc. R Co. v. Sparta (77 111.
505), 39.
Calder v. Smalley (66 Iowa, 219), 300.
Caldwell v. Alton (33 111. 416, 85 Am.
Dec. 282), 92, 93.
Caldwell v. Boone (51 Iowa, 647, 33
Am. Rep. 154), 280, 299.
California, etc. Ry. Co. v. Butte Co.
(18 Cal. 671), 155.
Callan v. Wilson (127 U. S. 540), 132.
Callanan v. Oilman (107 N. Y. 360),
295, 301.
Callendar v. Marsh (1 Pick., Mass.,
417), 313.
Camden v. Mulford (26 N. J. L. 49),
75, 82, 324.
Camden, etc. R Co. v. May's Land-
ing, etc. Co. (48 N. J. L. 530), 258.
Campana v. Calderhead (17 Mont.
548, 36 L. R A. 277), 82.
Campbell v. Polk Co. (3 Iowa, 467),
147.
Campbell v. Polk Co. (76 Mo. 57), 147.
Campbell v. Race (7 Gush. 408), 294.
Campbell v. Still water (32 Minn. 308),
297.
Cannon v. New Orleans (20 Wall.
577), 136.
Canto, Ex parte (21 Tex. App. 61, 57
Am. Rep. 609), 92.
Canton v. Nist (9 Ohio St. 439, 34
Am. Dec. 625), 199.
Cantrill v. Sainer (59 Iowa, 26), 177,
194.
Cape Girardeau v. Forgen (30 Mo.
App. 551), 179.
Cape Girardeau v. Riley (52 Mo. App.
424), 182.
Carpenter v. Cohoes (81 N. Y. 21, 37
Am. Rep. 468), 293.
Carpenter v. People (8 Colo. 116), 63.
Carr v. State (111 Ind. 1), 244.
Carr v. St. Louis (9 Mo. 191), 199. *
Carrington v. St. Louis (89 Mo. 208),
283, 307.
Carroll v. Iowa Land Co. (39 Iowa,
151), 5.
Carroll Co. v. Smith (111 U. S. 556,),
157, 162.
Carson v. McFettridge (15 Ind. 327),
227.
Carstesen v. Town of Stratford (67
Conn. 428), 305.
TABLE OF CASES CITED.
XXV11
References are to pages.
Carter v. Bridge Co. (104 Mass. 236),
38,40.
Carter v. Thorson (So. Dak., 24 L. R
A. 734), 170.
Carter Co. v. Linton (120 U. S. 517),
148.
Carthage v. Frederick (122 N. Y. 269,
19 Am. St Eep. 490, 10 L. R A.
178), 67, 68, 299, 303.
Cary v. North Plainfield (49 N. J. L.
110), 92,
Cary v. Somerset Co. (45 N. J. L.
445), 77.
Cass v. Dillon (2 Ohio St 617), 5&
Cass v. Jordan (95 U. S. 373), 159.
Cass Co. v. Johnston (95 U. a 360),
157.
Cater v. N. W. TeL Exch. Co. (60
Minn. 539, 63 N. W. Eep. Ill),
104, 106.
Central v. Sears (2 Colo. 588), 179.
Central v. Wilcoxen (3 Colo. 566), 146.
Central Bridge Corp. v. Lowell (15
Gray, 106), 220.
Central Trans. Co. v. Pullman P. C.
Co. (139 U. S. 22), 259, 263.
Chaddock v. Day (75 Mich. 527, 13
Am. St Rep. 468), 84
Chadeayne v. Robinson (55 Conn.
345), 307.
Chadoburne v. Newcastle (48 N. H.
196), 279.
Chad wick v. Coif ax (51 Iowa, 70),
325.
Chaffee Co. Com'rs v. Potter (142
U. S. 355), 167.
Chamberlain v. Doner (13 Me. 466, 29
Am. Dec. 517), 221.
Chamberlain v. Evansville (77 Ind.
542), 65.
Chambers v. Barnard (127 Ind. 365,
11 L, R A. 613), 231.
Chambers v. Satterlee (10 Minn. 290),
116.
Champaign v. Jones (132 III 304), 296.
Champer v. Greencastle (138 Ind.
339, 46 Am. St Rep. 390), 92, 93,
201.
Chan Yen, Ex parte (60 CaL 78), 193.
Chandler v. Boston (112 Mass. 200),
41.
Chandler v. Douglass (8 Blackf. 10,
44 Am. Dec, 732), 17.
Chandler v. Scott (127 Ind. 226, 10 L.
R A. 375), 250.
Chapman v. Douglas Co. (107 U. S.
348), 151, 262, 263.
Chapman v. Oshkosh, etc, Ry. Co. (33
Wis. 629), 126.
Chapman v. Rochester (110 N. Y.
273, 1 L. R A. 296), 311.
Charleston v. Reed (27 W. Va. 681, 55
Am. Rep. 336), 93.
Charliton v. Fitzsimmons (87 Iowa,
226), 206.
Cheeney v. Brookfield (60 Mo. 53),
148.
Chemung Bank v.Chemung (5 Denio,
517), 148.
Chesapeake P. TeL Co. v. Mackenzie
(74 Md. 36, 21 Atl. Rep. 690, 28
Am. St Rep. 219), 107.
Chicago v. Baptist Theo. Union (115
111. 245), 115.
Chicago v. Bartree (100 HI. 57), 91.
Chicago v. Blair (149 111. 310, 24 I*
R A. 412), 111.
Chicago v. Keefe (114 I1L 222), 292.
Chicago v. Lamed (34 DL 253), 114.
Chicago v. McCoy (136 III 344, 11 L.
R A. 413), 189.
Chicago v. McGiven (78 111. 347), 302.
Chicago v. O'Brien (111 I1L 532, 53
Am. Rep. 640), 211, 303.
Chicago v. Seben (165 El. 371), 309.
Chicago v. Union Building Ass'n (102
III 79), 323.
Chicago v. Stratton (162 HL 494, 35
L. R A. 84), 214,
Chicago v. Trotter (136 EL 430\ 216.
Chicago, etc. Co. v. Chicago (88 IlL
221), 91.
Chicago, etc. Ry. Co. v. Dunbar (100
HL 110), 27.
Chicago, etc. Ry. Co. v. Iowa (94 U. S.
155), 4.
Chicago, etc. Ry. Co. v. Langlade (56
Wis. 614), 41.
Chicago, etc. Ry. Co. v. Minnesota
(134 U. S. 418), 136.
Chicago, etc, Ry. Co. v. Oconto (50
Wis. 189, 36" Am. Rep. 840), 41.
xxviii
TABLE OF CASES CITED.
References are to pages.
Chicago, etc. Ry. Co. v. Otoe Co. (16
Wall. 667), 154,
Chicago, etc. R. Co. v. Sawyer (69 111.
285, 18 Am. Rep. 618), 304,
Chicago, etc. R Co. v. U. P. R Co.
(47 Fed. Rep. 15), 258.
Chicago, B. & Q. R. Co. v. Quincy
(139 111. 355), 100.
Child v. Boston (4 Allen, 41, 81 Am.
Dec. 680), 252, 313.
Childrey v. Huntington (34 W. Va.
459, 11 L. R A. 313), 801.
Chin Tan, In re (60 CaL 78), 201.
Chisholm v. Montgomery (2 Woods,
C. C. 584), 160.
Chope v. Eureka (78 Cal. 588, 4 L. R.
A. 327), 291.
Christianson, In re (43 Fed. Rep. 243),
214, 215.
City v. Erie Pass. Ry. Co. (7 Phila.,
Pa., 321), 206.
City v. Kingsboro (161 Ind. 290), 126.
City v. Nash (Neb., 69 N. W. Rep.
964), 299.
City Council v. Aherns (4 Strob.,
S. C., L. 241), 201.
City Council v. Lombard (25 S. E.
Rep. 772), 287.
City Council v. Pepper (1 Rich., S. C.,
364), 131.
City Council v. Van Dorn (41 Ala.
505), 326.
City of Augusta v. Sweeney (44 Ga.
463, 9 Am. Rep. 172), 236.
City of Burlington v. Putnam Ins.
Co. (31 Iowa, 102), 180.
City of Caldwell v. Prunelle (57 Kan.
511), 280.
City of Chadron v. Glover (43 Neb.
732, 62 N. W. Rep. 62), 293.
City of Chicago v. Hesing (83 111.
204), 297.
City of Delphi v. Evans (36 Ind. 90),
178.
City of Detroit v. Fort Wayne, etc.
R Co. (95 Mich. 456, 35 Am. St.
Rep. 580, 20 L. R A. 79), 194
City of Ellsworth v. Rossitter (46
Kan. 237, 20 Pac. Rep. 674), 238.
City of Eufaula v. McNab (67 Ala.
588), 258.
City of Flora v. Naney (136 111. 45, 26
N. E. Rep. 645), 299.
City of Goshen v. Craxton (34 Ind.
239), 196.
City of Indianapolis v. Bieler (138
Ind. 30, 36 N. E. Rep. 857), 208.'
City of Indianapolis v. Emmelman
(108 Ind. 530), 297.
City of Laredo v. Nalle (65 Tex. 359),
327.
City of Paterson v. Barnett (46 N. J.
L. 62), 178. 179.
City of Pawtucket v. Bray (R L,
37 Atl. Rep. 1), 300.
City of Port Huron v. Jenkinson (77
Mich. 414.. 18 Am. St. Rep. 409),
303.
City of Poughkeepsie v. Quintard
(136 N. Y. 275, 32 N. E. Rep. 764),
171.
City of St. Paul v. Lawton (61 Minn.
537), 215.
City of Tarkio v. Cook (120 Mo. 1, 41
Am. St. Rep. 678), 194, 195.
City R. Co. v. Citizens' St Ry. Co.
(166 U. S. 557), 100.
City Ry. Co. v. Mayor (77 Ga. 731, 4
Am. St. Rep. 106), 195.
Citizens' Bank v. City of Terrell (78
Tex. 456, 14 S. W. Rep. 1003),
168.
Citizens' Gas & Mining Co. v. Ell-
wood (114 Ind. 336), 176, 195.
Cincinnati v. Buckingham (10 Ohio,
257), 92.
Cincinnati v. Cameron (33 Ohio St.
336), 80, 139.
Cincinnati, etc. R. Co. v. Belle Cen-
ter (48 Ohio St. 273, 27 N. E. Rep.
464), 122. *
Circleville v. Neuding (41 Ohio St.
465), 270.
Claghorn v. Cullen (13 Pa. St. 133, 53
Am. Dec. 450), 26.
Claiborne Co. v. Brooks (111 U. S.
400), 145, 149, 150.
Clapp v. Board of Police (72 N. Y.
415), 246.
Clapp v. Davis (25 Iowa, 315), 826.
Clark v. Chicago (166 III 84, 46 N. E.
Rep. 730), 115.
TABLE OF CASES CITED.
XXIX
References are to pages.
Clark v. Des Moines (19 Iowa, 199),
67, 145, 147.
Clark v. Iowa City (20 Wall 583), 148.
Clark v. Miller (54 N. Y. 528), 249, 253.
Clark v. Mobile (36 Ala. 621), 326.
Clark v. Rogers (81 Ky. 43), 18.
Clark v. Thompson (37 Iowa, 536), 5, 7.
Clark v. Worcester (125 Mass. 226),
120.
Clarke v. Irwin (5 Nev. 92), 6a
Clarke v. Rochester (24 Barb., N. Y.,
446), 5.
Clason v. Milwaukee (30 Wis. 316),
202.
Clay v. Nicholas Co. (4 Bush, Ky.,
154), 150.
Clement v. Town of Casper (Wyo.,
35 Pac. Rep. 472), 208.
Cleveland, In re (52 N. J. L. 188), 54,
55.
Cleveland v. King (132 U. S. 295), 292,
295.
Cleveland v. Stewart (3 Ga. 283), 3.
Cleveland, etc. Ry. Co. v. Conners-
ville (Ind., 1897, 38 L. R. A. 175),
206.
Cleveland, etc. Tel. Co. v. Met, Fire
Com. (55 Barb. 288), 79.
Clifford v. Commissioners (59 Me.
262), 124
Cline v. Crescent City R. Co. (41 La.
Ann. 1031, 6 So. Rep. 851), 292.
Clinton v. Cedar Rapids, etc. Ry. Co.
(24 Iowa, 455), 26.
Clinton v. Clinton Co. (61 Iowa, 205),
86.
Clinton v. Henry Co. (115 Mo. 557),
118.
Closson v. Trenton (48 N. J. L. 438),
57.
Coal Float v. Jeffersonville (112 Ind.
19), 19a
Coates v. New York (7 Cow. 585), 86,
183.
Cobb v. Portland (55 Me.,381, 92 Am.
Dec. 598), 280.
Cochran v. Frostburg (81 Md. 54), 75,
277, 278.
Cochran v. McCleary (22 Iowa, 75),
221, 321.
Cochrane v. Maiden (152 Mass. 365),
309.
Coe v. Railway Co. (27 Minn. 197),
155.
Coffin v. Kearney Co. Com'rs (57 Fed.
Rep. 137), 165.
Coggshal v. Des Moines (78 Iowa,
235), 79.
Cohen v. Cleveland (43 Ohio St. 190),
313.
Cohen v. New York (113 N. Y. 532),
273, 296, 298, 299.
Col. Pav. Co. v. Murphy (78 Fed. Rep.
28, 49 C. C. A. 17), 79.
Cold water v. Tucker (36 Mich. 474, 24
Am. Rep. 601), 74,
Cole v. Kegler (64 Iowa, 69), 88.
Cole v. Muscatine (14 Iowa, 296), 314.
Cole v. Nashville (4 Sneed, Tenn.,
162), 298.
Cole v. State (102 N. Y. 48), 37.
Coleman v. Second Ave. Ry. Co. (38
N. Y. 201), 100.
Coler v. Cleburne (131 U. S. 162),
160.
Coler v. D wight School Tp. (3N. Dak.
249, 55 N. W. Rep. 587), 165.
Coletrain v. McKane (3 Dev., N. C.,
238, 24 Am. Dec. 256), 252.
Collins v. Davis (57 Iowa, 256), 324
Collins v. Hatch (18 Ohio, 523, 51
Am. Dec. 465), 75.
Collinswood v. New Whatcom (16
Wash. 224, 47 Pac. Rep. 439), 273.
Coloma v. Eaves (92 U. S. 484), 150.
Columbus W. W. v. Mayor of Colum-
bus (48 Kan. 99, 25 L. R. A. 534),
79, 259.
Colville v. Judy (73 Mo. 65), 134
Colwell v. Boone (51 Iowa, 687), 279.
Comanche Co. v. Lewis (133 U. S.
. 198), 149.
Comer v. Folsom (13 Minn. 219, GiL
205), 151.
Commissioners v. Allen (70 Pa. St.
465), 240.
Commissioners v. Allman (142 Ind.
58), 277.
Commissioners v. Aspinwall (21
How., U. S., 539), 164.
TABLE OF CASES CITED.
"References are to pages.
Commissioners v. Gas Co. (12 Pa. St.
318), 201, 204.
Commissioners v. Detroit (28 Mich.
228, 15 Am. Rep. 202), 24.
Commissioners v. Johnson (19 Am.
St. Eep. 96), 226.
Commissioners v. Johnson (71 N. C.
398), 128.
Commissioners v. Jones (12 Pa. St.
365), 224
Commissioners v. League (121 U. S.
493), 162.
Commissioners v. North Liberty Gas
Co. (2 Jones, 318), 204.
Commissioners v. Railway Co. (63
Iowa. 297), 126.
Commissioners v. Reynolds (20 Atl.
Rep. 1011), 64.
Commissioners v. Shoemaker (27
' Kan. 77), 63.
Commissioners v. Shorter (50 Ga.
489), 156.
Commissioners v. Standley (49 Pac.
Rep. 23), 147.
Commonwealth v. Abraham (156
Mass. 57), 214.
Com. v. Adams (114 Mass. 323, 19
Am. Rep. 362), 205.
Com. v. Baltimore (132 Pa. St. 383),
23, 149.
Com. v. Boston (97 Mass. 555), 104,
Com. v. Brooks (100 Mass. 55), 204,
209, 214.
Com. v. Cutler (156 Mass. 52, 29 N. E.
Rep. 1146), 86, 212.
Com. v. Davis (140 Mass. 485), 75, 189.
Com. v. Den worth (145 Pa. St. 172), 54.
Com. v. Elliott (121 Mass. 367), 208.
Com. v. Fahey (5 Cush. 408), 183.
Com. v. Fenton (139 Mass. 195, 29
N. E. Rep. 653), 204.
Com. v. Gage (118 Mass. 328), 204.
Cora. v. Halstead (7 Atl. Rep. 221), 55.
Com. v. Jacksonville (Fla., 29 L. R.
A. 416, 18 So. Rep. 338), 27, 33.
Com. v. Look (108 Mass. 452), 127.
Com. v. Macferron (152 Pa. St. 244,
23 Atl. Rep. 557), 55.
Com. v. Matthews (122 Mass. 60), 191,
204.
Com. v. Meeser (44 Pa. St. 841), 256,
321.
Com. v. Mitchell (82 Pa. St. 343), 77,
79.
Com. v. McCafferty (145 Mass. 384, 14
N. E. Rep. 451), 189.
Com. v. Mulhall (162 Mass. 496, 44
Am. St. Rep. 387), 204.
Com. v. Passmore (1 Serg. & R. 217),
98.
Com. v. Patch (97 Mass. 221), 201.
Com. v. Philadelphia (132 Pa, St. 238),
212.
Com. v. Pittsburg (34 Pa. St. 496),
316, 318.
Com. v. Parks (155 Mass. 531, 30 N. E.
Rep. 174), 75.
Com. v. Patch (97 Mass. 221), 203.
Com. v. Patton (88 Pa. St. 258), 57, 60.
Com. v. Plaisted (148 Mass. 875), 25,
30, 71, 206.
Com. v. Robertson (5 Cush. 439), 204.
Com. v. Roy (140 Mass. 432), 198.
Com. v. Roxbury (9 Gray, 451), 11.
Com. v. Stodder (2 Cush. 563), 204.
Com. v. Turner (1 Cush., Mass., 493),
176.
Com. v. Wilkins (121 Mass. 356), 209.
Com. v. Worcester (3 Pick. 462), 202,
205.
Compton v. Zabriskie (101 U. S. 601),
323.
Conastota Knife Co. v. Newington
Tramway Co. (69 Conn. 146, 36
Atl. Rep. 1107), 105.
Concord v. Robinson (121 U. S. 165),
150.. 153.
Condict v. Jersey City (46 N. J. L.
157), 307.
Conklin v. School District (22 ifan.
521), 7.
Conner v. Woodfill (126 Ind. 85), 308.
Converse v. Porter (45 N. H. 399),
251.
Converse v. United States (21 How.,
U. S., 470), 230.
Cook v. Anamosa (60 Iowa, 427), 304.
Cook v. Hall (6 111. 579), 250.
Cook v. March (54 Ga. 468), 280.
Cook v. Milwaukee (27 Wis. 191), 302.
TABLE OF CASES CITED.
References are to pages.
Cook Co. v. Industrial School (125
III 540, 8 Am. St. Rep. 386), 83.
Coolidge v. Brookline (114 Mass. 592),
108.
Coonley v. "Albany (57 Hun, 327), 277.
Cooper, In re Application of (38 Hun,
N. Y., 515), 121.
Cooper v. Phipps (L. R. 2 H. L. 149),
265.
Oorbalis v. Newberry Tp. (132 Pa. St.
9), 304.
Corliss, In re (11 R. L 638), 227.
Corpus Christi v. "Woessner (58 Tex.
462), 170.
Corry v. Holtz (29 Ohio St. 320), 114
Costello v. Wyoming (49 Ohio, 202,
30 N. K Rep. 613), 51, 6a
Cotton v. New Providence (47 N. J.
L. 401), 167.
Cotton v. Phillips (56 N. H. 220), 230.
Council Bluffs v. K C. etc. Ry. Co.
(45 Iowa, 358), 27.
Council Bluffs v. Stewart (51 Iowa,
385), 170.
Council Grove, Corp. Powers of (20
Kan. 619), 47.
County v. Graves (84 CaL 71), 57.
County v. People (11 111. 202), 33.
County v. St. Paul & Sioux City Ry.
Co. (28 Minn. 503, 508, 11 N. W.
Rep. 73), 6.
County Com'rs v. Gibson (36 Md. 229),
252.
County of Richland v. County of
Lawrence (12 111. 1), 33.
County of San Luis Obispo y. Hen-
dricks (71 Cal. 242), 184,
County of Tipton v. Kimberlin (108
Ind. 449, 9 N. R Rep. 407), 315.
Corington v. St. Louis (78 111. 548),
200.
Cowan's Case (1 Overton, Tenn., 311),
97.
Cowdry v. Caneadea (16 Fed. Rep.
532), 156.
Cowert, Ex parte (92 Ala. 94, 9 So.
Rep. 225), 194.
Cowley v. Sunderland (6 H. & N.
565). 237.
Craig v. Andes (93 N. Y. 405), 157.
Crane v. West Chicago Park Com-
missioners (153 111. 348, 26 L. R.
A. 311), 111.
Craw v. Tolono (96 EL 255, 35 Am.
Rep. 143), 14, 118.
Crawford Co. v. Wilson (7 Ark. 214),
145.
Crawfordsville v. Brader (130 Ind.
149, 14 L. R. A. 268), 72, 137, 138,
178.
Creely Co. v. Milne (36 Neb. 301, 19
L. R, A. 689), 236.
Creighton v. Com. (83 Ky. 147), 233.
Creighton v. Marson (27 Cal. 613), 176.
Creighton v. San Francisco (42 CaL
446), 33, 37, 40.
Cricket v. State (18 Ohio St. 9), 51, 53.
Cromarty v. Boston (127 Mass. 329,
34 Am. Rep. 381), 296.
Cromwell v. Sac Co. (96 U. S. 51), 162.
Cronin v. People (82 N. Y. 318), 18a
Cross v. Mayor of Morristown (18
X. J. Eq.' 305), 179.
Crow v. Oxford Tp. (119 U. S. 215),
iea
Crowder v. Town of Sullivan (128
Ind. 486, 28 N. K Rep. 94), 174
Crowley v. Christensen (137 U. S. 86),
85.
Cuddon v. Eastwick (1 Salk. 143), 5.
Culbertson v. Fulton (127 I1L 30X
173.
Culler, In re (53 Hun, N. Y., 534), 40.
Culver v. Streator (130 111. 238), 30,
271, 279, 280.
Cumberland Co. v. Pennell (69 Me.
357, 31 Am. Rep. 284), 255.
Cummins v. City of Seymour (79 Ind.
491, 44 Am. Rep. 226), 272, 309.
Cupp v. Commissioners (19. Ohio St.
173), 125.
Curran v. Boston (151 Mass. 505, 8 L.
R. A. 243), 268, 285.
Curry v. District (62 Iowa, 102), 7.
Curry v. Township of Sioux City (63
Iowa, 104), 5, 7.
Curryer v. Merrill (25 Minn. 1, 33
Am. Rep. 450). S2.
Gushing v. Boston (128 Mass. 330, 35
Am. St. Rep. 383), 101, 295.
XXX11
TABLE OF CASES CITED.
References are to pages.
Cnshing v. The John Frazer (21 How.,
U. 8., 184), 89.
Cutcamp v. Utt (60 Iowa, 156), 185.
Cutler v. Houston (158 U. S. 423), 162.
Cutting v. Stone (7 Vt. 471), 21.
Czarziieck's Appeal (11 Atl. Rep. 660),
88.
D.
Dabney v. Hudson (68 Miss. 292, 24
Am. St. Rep. 276), 233.
Daggett v. Colgan (92 CaL 53, 14 L.
R. A. 474), 153.
Dailey v. State (8 Blackf., Ind., 329),
231.
Dakota County v. Parker (7 Minn.
267), 266.
Daley v. St. Paul (7 Minn. 890, Gil.
311), 32.
Dalrymple v. Whitingham (26 Vt.
345), 146.
Daly v. Georgia, etc. R. Co. (80 Ga.
793, 12 Am. St. Rep. 286), 102.
Daly v. Morgan (69 Md. 460), 41.
Damon v. Granby (2 Pick, 345), 221.
Damour v. Lyon City (44 Iowa, 276),
310.
Danaher v. Brooklyn (119 N. Y. 241),
307.
Danversberger v. Pendergast (128 TIL
229), 194
Danville v. Shelton (76 Va. 325), 177.
Darby v. Sharon Hill (112 Pa. St. 66),
43, 44.
Dargan v. Mobile (31 Ala. 469, 70 Am.
Dec. 505), 279.
Darkin, In re (10 Hun, N. Y., 269), 189.
Darlington v. City of New York (31
N. Y. 164), 24, 26, 278, 279.
Darlington v. Ward (48 S. C. 570), 193.
Darrow v. People (8 Colo. 426), 57, 65,
225.
Dartmouth College v. Woodward (4
Wheat. 518), 23, 134.
Datz v. Cleveland (52 N. J. L. 188, 7
L. R. A. 431), 240.
Davenport v. Bird (34 Iowa, 524), 132.
Davenport v. Kleinschmidt (6 Mont.
502), 79, 81, 174.
Davenport v. Peoria Ins. Co. (17 Iow^»,
276), 299, 325.
Davidson v. Ramsey Co. (18 Minn.
482, GiL 432), 150, 153, 154, Ibi,
167.
Davis v. Burger (54 Mich. 692), 226.
Davis v. Com. (167 U. S. 43, 162 Mass.
510, 44 Am. St. Rep. 389), 26 L. R.
A. 712), 207.
Davis v. Crawfordsville (119 Ind. 1,
12 Am. St. Rep. 361), 308, 309, 312.
Davis v. Gaines (48 Ark. 370), 63.
Davis v. Graves (38 N. J. L. 104),
326.
Davis v. Litchfield (145 111. 313), 115,
202.
Davis v. Lynchburg (84 Va. 861), 114.
Davis v. Mayor of New York (1 Duer,
451), 240.
Davis v. Montgomery (51 Ala. 139),
277.
Davis v. New York (14 N. Y. 506),
100.
Davis v. Sawyer (133 Mass. 289), 89.
Davis v. Winslow (51 Me. 264), 98.
Davis v. Woolonough (9 Iowa, 104),
65.
Davock v. Moore (105 Mich. 120, 28
L. R. A. 783), 30, 38.
Davos v. Portland Water Com. (14
Oreg. 98), 135.
Day v. Jersey City (19 N. J. Eq. 412),
176.
Day v. Milford (5 Allen, 98), 101.
Day v. Mt. Pleasant (70 Iowa, 193),
302.
Dean v. Davis (51 Cal. 406), 219.
Dean v. New Milford Tp. (5 W. & S.,
Pa., 545), 293.
Decie v. Brown (167 Mass. 290,«45 N.
E. Rep. 765), 209.
Decker v. Sergeant (125 Ind. 404), 209.
Decorah v. Bullis (25 Iowa, 12), 232.
Deehan v. Johnson (141 Mass. 23), 317.
Deems v. Baltimore (80 Md. 104, 26
L. R. A. 541), 87.
Deering, In re (93 N. Y. 651), 121.
Defer v. Detroit (67 Mich. 346), 312.
Deitz v. City of Central (1 Colo. 332),
18, 19.
TABLE OF CASES CITED.
Delane v. McDonald (41 Conn. 517),
256.
Delaware Co. v. McClintock (51 Ind.
325), 150.
Delger v. St, Paul (14 Fed. Rep. 567),
29a
Demattos v. New Whatcom (4 Wash.
127, 29 Pac. Rep. 933), 45.
Demorest v. New York (147 N. Y.
203, 41 N.'E. Rep. 405), 237.
Dempter v. People (158 III 36), 117.
Dennis v. Maynard (15 HI. 477), 33.
Denny v. Spokane (48 C. C. A. 282,
79 Fed. Rep. 719), 117.
Dent v. Cook (45 Ga. 323), 149.
Denton v. Jackson (2 Johns. Ch. 220),
19.
Denver v. Bayer (7 Colo. 113), 123.
Denver v. Coulehan (20 Colo. 471, 27
L. R, A. 751), 41, 42,
Denver v. Darrow (13 Colo. 460, 16
Am. St. Rep. 215), 244, 255.
Denver v. Dunsmore (7 Colo. 328),
292,
Denver v. "Williams (12 Colo. 475),
292,
Depot v. Simmons (112 Pa, St 384),
270.
De Puyster, Petition of (80 N. Y. 565),
125.
Des Moines v. Gilchrist (67 Iowa,
210), 93, 177.
Des Moines Co. v. Harker (34 Iowa,
84), 6.
Des Moines Gas Co. v. Des Moines
(44 Iowa, 505, 24 Am. Rep. 756),
80, 195.
Des Plaines v. Poyer (123 111. Ill), 88.
Detroit v. Blackeby (21 Mich. 84),
291.
Detroit v. Howell Plank R Co. (43
Mich. 140), 29.
Detroit v. Martin (34 Mich. 170), 265.
Detroit v. Osborne (135 U. S. 492),
292,
Detroit v. Detroit City Ry. Co. (37
Mich. 558), 102.
Detroit v. Fort "Wayne, etc, Ry. Co.
(95 Mich, 456, 20 L. R. A. 79), 100,
201.
Detroit Citizens' St. Ry. Co. v. Detroit
(68 N. W. Rep. 304, 35 L. R. A.
859), 67, 96, 101.
Detroit City Ry. Co. v. Mills (So Mich.
634), 105.
De Turk v. Com. (129 Pa. St. 151, 15
Am. St. Rep. 705, 5 L, R, A. 853),
229.
Devine v. Cook Co. (84 11L 590), 55, 66.
De Vose v. Richmond (18 Gratt, 338,
98 Am. Dec, 646), 149.
Dew v. Judges (3 Hen. & Munf. 1, 3
Am. Dec, 639), 256.
Dewey v. Des Moines (70 N. W. Rep.
605), 111, 113, 117.
Dey v. Jersey City (19 N. J. Eq. 414),
186, 219, 221.
Diamond Match Co. v. New Haven
(55 Conn. 510), 309, 310.
Dibble v. New Haven (56 Conn. 199),
78.
Dickinson v. Neeley (30 S. C. 587, 3
L. R. A. 672), 153, 158.
Diehn v. Cincinnati (25 Ohio St 305),
285.
Dimock v. Suffield (30 Conn. 129), 297.
Dingley v. Boston (100 Mass. 544), 88,
121.
Directors v. Houston (71 111. 318), 3.
Disdall v. Olmstead Co. (30 Minn. 96),
292.
District v. Bradley (164 U. a 112), 108.
District Attorney, In re (11 PhiL 645),
231.
District of Columbia v. Cornell (130
U. S. 655), 145.
District of Columbia v. Woodbury
(136 U. S. 450), 270, 292, 301.
Dively v. Elmira (51 N. Y. 506), 131.
Dix v. Dummuston (19 Vt 263), 82.
Dixon Co. v. Field (111 U. S. 83), 165,
. 167, 168.
Doane v. Chicago R. R. Co. (160 I1L
22, 35 L. R. A. 588), 102.
Doane v. Lake Street Elevated R.
Co. (165 III 510, 46 N. E. Rep. 510,
36 L. R A. 97), 106.
Dobbins v. Northampton (5 N. J. I*
496), 57.
Dobbs v. Stauffer (24 Kan. 127), 8a
XXXIV
TABLE OF CASES CITED.
References are to pages.
Dodd v. Hartford (25 Conn. 232),
323.
Dodge v. Granger (17 R. I. 664), 283.
Doggert v. Colgan (92 Cal. 53, 14 L.
R. A. 474), 108.
Doherty v. Braintree (148 Mass. 495),
304.
Donaher v. Brooklyn (51 Hun, 563),
276.
Donahoe v. Kansas City (136 Mo.
657), 273.
Donahoe v. Richards (38 Me. 379, 61
Am. Dec. 256), 83.
Doniell v. Sinclair (L. R, 6 App. Cas.
181), 265.
Donohue v. County of Wills (100 111.
94), 245.
Donovan v. Board of Education (85
N. Y. 117), 285.
Doolittle v. Broome County (18 N. Y.
155), 323.
Doon Tp. v. Cummins (142 U. S. 366),
171.
Door v. Mickley (16 Minn. 20, Gil. 8),
251.
Dosdale v. Olmstead County (33
Minn. 96, 44 Am. Rep. 185), 6, 306.
Dougherty v. Austin (94 Cal. 601),
53.
Douglas Co. v. Wallbridge (38 Wis.
179), 156.
Douglass v. Com. (108 Pa. St. 559),
77, 108.
Douglass v. Virginia City (5 Nev.
122), 75, 149.
Douglass v. Yallup (Burr. 722), 253.
Douglassville v. Johns (62 Ga. 423),
264.
Dovack v. Moore (105 Mich. 120, 28
L. R, A. 783), 33.
Dow v. Chicago (11 Wall., U. S., 108),
323.
Dowlan v. Sibley (36 Minn. 431), 5.
Downing v. Mason County (87 Ky.
208), 306.
Doyle v. Austin (47 Cal. 353), 116.
Drake v. Hudson River R Co. (7
Barb., N. Y., 539), 178.
Drew v. Rogers (Cal., 34 Pac. Rep.
1081), 227.
Driftwood Co. v. Board (72 Ind. 226),
272.
Droz v. Baton Rouge (36 La. Ann.
340), 327.
Drummer v. Cox (165 III 648, 46 N.
E. Rep. 716), 108.
Du Bois v. Augusta (Dudley, Ga., 30),
199.
Dubois v. Kingston (102 N. Y. 219),
301.
Duffield v. Williamsport (162 Pa. St.
476, 25 L. R, A. 152), 83.
Duffy v. Dubuque (63 Iowa, 171), 301.
Duffy v. New Orleans (49 La. Ann.
114), 120.
Dullan v. Wilson (53 Mich. 392), 245.
Duluth v. Dibblee (62 Minn. 18), 109,
110.
Duluth v. Mallett (43 Minn. 204), 203,
205.
Dunbar v. Augusta (90 Ga. 390), 94.
Dunham v. Hyde Park (75 III 371),
120.
Dunlap v. Knapp (14 Ohio St. 64),
252.
Dunnell Mfg. Co. v. Newell (15 R. I.
233), 265.
Durango v. Pennington (8 Colo. 257),
74.
Durgan v. Mobile (31 Ala. 469), 280.
Dutton v. Aurora (114 111. 138), 81.
Duty v. State (Ind. App., 36 N. E.
Rep. 655), 238.
Duval Co. Com. v. Jacksonville (Fla.,
29 L. R A. 416), 319.
Dwight v. Springfield (4 Gray, 107),
324.
Dyer v. Covington Tp. (19 Pa. St. 200),
146.
»
E.
Eagle v. Kohn (84 111. 292), 155.
Earley v. San Francisco (55 CaL 489),
47.
Easterly v. Town of Erwin (68 N. W.
Rep. 919), 280.
Eastern, etc. Ry. Co. v. Central Ry.
Co. (52 N. J. Law, 267, 31 Am. &
Eng. Corp. Cas. 262), 38.
TABLE OF CASES CITED.
X3 JLV
References are to pages.
Easthampton v. County Com'rs (164
Mass. 424), 123.
East Hartford v. Hartford Bridge
(10 How., U. S., 511), 26, 28.
Eastman v. Clackamas County (32
Fed. Rep. 24), 293.
Eastman v. Meredith (36 N. H. 284),
11, 291, 306.
Eastman v. New York (5 Robt, N. Y.,
389). 279.
East Oakland Tp. v. Skinner (94 U. S.
256), 152.
Easton Com, v. Covey (74 Md. 262),
214
East St. Louis v. Bux (43 111. App.
276), 92.
East St. Louis v. East St. Louis G. L,
Co. (98 111. 415, 38 Am. Rep. 97),
75, 174, 261.
East St. Louis v. People (124 111. 655,
23 Am. & Efcg. Corp. Cas. 408),
169.
East Union Tp. v. Ryan (80 Pa. St.
459), 146.
Eaton v. Berlin (49 N. H. 219), 145.
Eaton v. Boston, etc. R Co. (51 N. H.
504), 1:23.
Eaton v. Manitowoc (44 Wis. 489), 5,
46.
Eddy v. Granger (19 R L 105), 277.
Edgerley v. Concord (59 N. H. 78), 280,
287.
Edgwood, In re (130 Pa. St. 348), 43.
Edmonds v. Herbrandson (2 N. D.
270, 14 L. R. A. 725». 55, 60, 63.
Edmondson v. School District (Iowa,
67 N. W. Rep. 671), 162.
Edwards v. Charlotte R R Co. (39
S. C. 472, 22 L. R, A. 246), 307.
Edwards v. Chicago (140 I1L 440), 115.
Edwards v. Pocahontas (47 Fed. Rep.
268), 284.
Edwards v. United States (103 U. S.
471), 242.
Edwards v. Watertown (24 Hun, 428),
70.
Eels v. Am. T. & T. Co. (143 N. Y. 133,
38 N. E. Rep. 202). 107.
Effingham v. Hamilton (68 Mich. 523),
8:3.
Egan v. Chicago (5 El. App. 70), 180.
Egerton v. Third Municipality (1 La.
Ann. 435), 326.
Ehrgott v. New York (96 N. Y. 264),
270, 292.
Eichels v. Evansville St Ry. Co. (78
Ind. 261), 65, 105.
Eischenlaub v. St. Joseph (113 Mo.
395), 93, 240.
Eitel v. State (33 Ind. 201), 61.
Eldora v. Burlingame (62 Iowa, 32),
194.
Eldridge v. Smith (34 Vt. 482), 1C?.
Electric L. Co. v. Jacksonville (36
Fla. 229, 30 L. R. A. 540), 15&
Electric Ry. Co. v. Grand Rapids (84
Mich. 257), 102.
Elizabethtown v. Lefler (23 III 90),
188.
Elliott v. Kalkaska Sup. (58 Mich.
452, 55 Am. Rep. 706), 86.
Elliott v. Lisbon (57 N. H. 27), 291.
Elliott v. Minneapolis (59 Minn. 126),
77.
Elliott v. Philadelphia (75 Pa. St. 342,
15 Am. Rep. 581), 280.
Ellis v. Pratt City (113 Ala. 541, 33
L. P.. A. 264), 325.
Ellis v. Lewiston (89 Me. 60), 302.
Ellison v. Rawley (89 N. C. 125), 243,
319.
Elmendorf v. Mayor, etc. (25 Wend.,
N. Y., 693), 188.
Elrnore v. Drainage Commissioners
(135 I1L 269, 25 N. E. Rep. 1010),
270.
Ely v. Grand Rapids (84 Mich. 337),
77.
Emery v. Bradford (29 Cal. 75), 117.
Emery v. Lowell (104 Mass. 13). 308.
Emery v. Mariaville (50 Me. 315), 145.
Emery Co. v. Burresen (14 Utah, 328,
37 L. R A. 732), 325.
Empire State, The (1 Newb. Adm.
541), 135.
Emporia v. Volmer (12 Kan. 622), 132.
English v. Smock (54 Ind. 115, 7 Am,
Rep. 215), 152.
Enterprise v. State (29 Fla. 128, 10 So,
Rep. 740), 50.
XXX VI
TABLE OF CASES CITED.
References are to parjet.
Erie's Appeal, In re (91 Pa. St. 398),
171, 174.
Erie v. Knapp (29 Pa. St. 173), 326.
Erie v. Magill (101 Pa, St. 616, 47 Am.
Rep. 739), 303.
Ernest v. Parke (27 Am. Dec. 288),
37.
Ernst v. Morgan (39 N. J. Eq. 391),
56.
Erskine v. Steele Co. (4 N. Dak. 339,
23 L. R. A. 645), 145.
Erwin v. G. S. TeL Co. (37 La. Ann.
63), 106.
Esling's Appeal (89 Pa. St. 205), 181.
Essex County Ry. Co. v. Lunensburg
(49 Vt. 143), 155.
Estelle v. Lake Crystal (27 Minn.
243), 294.
Eufalie v. McNab (67 Ala. 588, 42 Am.
Rep. 118), 133, 152.
Evans v. Job (8 Nev. 322), 63.
Evano v. Philadelphia Club (50 Pa.
St. 107), 243.
Evansville v. Bayard (39 Ind. 450), 65.
Evansville v. Decker (84 Ind. 325, 43
Am. Rep. 86), 309, 311.
Evansville v. Dennett (161 U. S. 434),
164.
Evansville v. Evansville, etc. Ry. Co.
(15 Ind. 395), 149.
Evansville v. State (118 Ind. 426, 4 L.
R. A, 93), 30, 63.
Evansville v. Summers (108 Ind.
189), 65.
Everett v. Marquette (53 Mich. 450),
88.
Everett v. Smith (22 Minn. 53), 157,
222.
Evergreen Cemetery Ass'n v. New
Haven (43 Conn. 234), 122.
Everts v. District (77 Iowa, 37, 14 Am.
St. Rep. 264), 83.
Evison v. C., M. & St. P. Ry. Co. (45
Minn. 370), 202, 205.
Ewing v. Hoblizelle (81 Mo. 64), 57.
Ewing v. State (81 Tex. 177), 42.
Ewing v. Webster City (Iowa, 72
N. W. Rep. 511), 196, 197.
Eyler v. Commissioners (49 Md. 257,
23 Am. Rep. 249), 293.
F.
F. & M. Bank v. Loftus (133 Pa. St.
97, 19 Atl. Rep. 347), 63.
Fairchild v. Ogdensburg, etc. Ry. Co.
(15 N. Y. 337), 145.
Fallbrook Irrigation Dist. v. Bradley
(164 U. S. 112), 112, 152.
Fanner v. Alliance (29 Fed. Rep. 169),
199.
Fargusson v. Winslow (34 Minn. 384),
266.
Farmington River W. P. Co. v.
County Com'rs (112 Mass. 206),
129.
Farquar v. Roseburg (18 Oreg. 271, 17
Am. St. Rep. 272), 292, 295.
Farr v. Grand Rapids (70 N. W. Rep.
411), 149.
Farrar v. St. Louis (80 Mo. 379),
114.
Farris v. Dudley (78 Ala, 124), 307.
Farwell v. Des Moines (66 N. W. Rep.
176), 115.
Farwell v. Manufacturing Co. (66 N.
W. Rep. 177), 117.
Fass v. Seehawer (60 Wis. 525), 129.
Fath v. Keppel (72 Wis. 289, 7 Am.
St. Rep. 867), 248.
Fath v. Tower Grove, etc. R Co. (105
Mo. 537, 13 L. R. A. 74), 102.
Faulkner v. Aurora (85 Ind. 130, 44
Am. Rep. 1), 278.
Fawcett v. Pritchard (14 Wash. 604),
130.
Felchlin, Ex parte (96 Cal. 360, 31
Am. St. Rep. 223), 198.
Ferguson v. Davis County (57 Iowa,
601), 804,
Ferguson v. Halsell (47 Tex. 4% 177.
Feske, Ex parte (72 Cal. 125), 214.
Field v. Com. (32 Pa. St. 478), 245.
Field v. Des Moines (39 Iowa, 557),
269, 281, 282.
Field v. West Orange (36 N. J. Eq.
118), 311.
Fife v. Oshkosh (89 Wis. 540), 299,
302.
Fifield v. Phoenix (Ariz., 24 L. R. A,
430), 27a
TABLE OF CASES CITED.
XXXVU
Reftrencet are to pages.
Finch v. Board of Education (30
Ohio St 37), 285.
Findlay v. Pittsburgh (82 Pa. St 351),
77.
Findlay, City of, v. Pertz (66 Fed.
Re'p. 427, 31 C. C. A. 340), 76.
Findley v. Salem (137 Mass. 171, 50
Am. Rep. 289), 27a
Fire Ins. Co. v. Keeseville (148 N. Y.
46), 24, 73, 138, 139.
First Municipality v. Cutting (4 La.
Ann. 336), 178.
First Municipality v. McDonough (2
Rob., La., 244), 149.
First Nat. Bank v. Americus (68 Ga.
190), 264.
First Nat. Bank v. Saratoga Co. (106
N. Y. 488), 148.
First Nat. Bank v. Sarles (129 Ind.
201, 28 Am. St Rep. 185), 210.
Fisher v. Boston (104 Mass. 87, 6 Am.
Rep. 196), 282, 307.
Fisk, Ex parte (72 CaL 125), 191.
Fisk v. Kenosha (26 Wis. 23), 150.
Fitzgerald v. Berlin (64 Wis. 203),
294.
Fitzsimmons v. Brooklyn (102 N. Y.
537, 7 N. E. Rep. 878), 236.
Flack v. Hughes (67 111. 384), 152,
Flagg v. Hudson (142 Mass. 280), 297.
Flagg v. School District (4 N. Dak.
30, 25 L. R A. 363, 58 N. W. Rep.
499), 160, 164, 165.
Flaherty, In re (105 Cal. 558, 27 L. R
A. 529;, 201, 207, 213, 215.
Fleming v. Guthrie (32 W. Va. 1, 3
L. R. A. 57), 319.
Flemming v. Appleton (55 Wis. 90),
258.
Flieth v. City of Wausau (93 Wis.
448), 257, 315.
Flint v. Webb (25 Minn. 93), 111.
Flood v. State (19 Tex. App. 584),
199.
Florence, Ex parte Mayor of (78 Ala.
419), 69.
Flori v. St. Louis (69 Mo. 341, 33 Am.
Rep. 504), 286.
Florida, etc. R Co, v. State (31 Fla.
482, 20 L. R A. 419), 317.
D
Flynn v. Canton Co. (40 Md. 321, 17
Am. Rep. 603), 211, 300, 30a
Flynn v. Taylor (127 N. Y. 5£6), 301.
Fobes v. Rome, W. & O. R Co. (121
N. Y. 505, 8 L. R A. 4-53), 105.
Folds v. Curlin (105 Ind. 221), 229,
230, 231.
Fond du Lac v. Crane (16 Wis. 196), 5.
Fones Bros. H. Co. v. Erb (54 Ark.
645, 13 L. R A. 353), 74, 79.
Foote v. Cincinnati (11 Ohio St 408,
38 Am. Dec. 737), 26.
Fopper v. Wheatland (59 Wis. 623),
297.
Forbes v. Escambria Board of Health
(48 Fla. 26, 13 L. R A. 549), 284.
Force v. Town of Batavia (61 III 100),
160.
Ford v. Delta, etc, Co. (164 U. S. 662),
115.
Forman v. Hennepin Co. (64 Minn.
371, 67 N. W. Rep. 207), 95.
Forsyth v. Atlanta (45 Ga. 152), 277.
Forsyth v. B. & O. TeL Co. (12 Mo.
App. 494), 106.
Foster v. Coleman (10 CaL 278), 145.
Foster v. Fowler (60 Pa. St 27), 4, 325.
Foster v. Kansas (112 U. S. 201), 244,
Foster v. Lane (30 N. H. 315), 7.
Foster v. Police Com'rs (102 CaL 183,
41 Am. St Rep. 194), 195.
Fouche v. Swain (80 Ala. 153), 250.
Fowle v. Alexandria (3 Pet., U. S.,
398), 277.
Fox v. Ellison (43 Minn. 41), 130.
Fox v. McDonald (101 Ala. 51, 46 Am.
St. Rep. 98, 21 L. R A. 529),
224
Foxworthy v. Hastings (25 Neb. 133X
294, 299.
Frame v. Felix (167 Pa. St 47, 27
L, R A. 802), 77.
Frances v. Howard Co. (54 Fed. Rep,
487), 168.
Franklin Co. v. German Sav. Bank
(142 TJ. S. 93), 162.
Franklin Co. v. Mitchell (25 Ohio St
143), 5.
Franklin Wharf Co. v. Portland (67
Me. 46), 9a
XXXV1U
TABLE OF CASES CITED.
References are to pages.
Frazee, In re (63 Mich. 396), 69, 182,
202, 204, 206, 214, 215, 216.
Frazer v. Warfield (13 Md. 279), 70.
Freeholders v. Buck (51 N. J. L. 155),
61.
Freeholders v. Stevenson (46 N. J. L.
173), 51.
Freeport v. Isbell (83 111. 440), 295.
Freeport v. Marks (59 Pa. St. 253), 193.
French v. Boston (129 Mass. 592), 286.
French v. Kirkland(l Paige, 117), 112.
French v. Brunswick (21 Me. 29), 101.
French v. Burlington (42 Iowa, 614),
169, 170, 175.
Frey v. Michie (68 Mich. 323), 256.
Friend v. Pittsburgh (131 Pa. St. 305,
6 L. R. A. 636), 146.
Fritz v.' Hobson (L. R 14 Ch. Div.
542), 98.
Frost v. Beekman (1 Johns. Ch. 288),
250.
Frost v. Cherry (122 Pa. St. 417), 54,
61.
Ft. Smith v. York (52 Ark. 84), 291.
Ft. Wayne v. Lake Shore, etc. R. Co.
(18 L. R. A. 367, 32 N. E. Rep. 215),
133, 134.
Ft. Wayne v. Rosenthal (75 Ind. 156,
39 Am. Rep. 127), 228.
Ft. Worth v. Crawford (74 Tex. 404),
307.
Fuller v. Grand Rapids (105 Mich.
529, 63 N. W. Rep. 530), 271.
Fulliam v. New Muscatine (70 Iowa,
436, 30 N. W. Rep. 861), 299.
Fulton v. Riverton (42 Minn. 395), 165.
Furnell v. St. Paul (20 Minn. 117, Gil.
101), 304.
G.
Gabel v. Houston (29 Tex. 336), 195.
Gahagan v. Railway Co. (1 Allen, 187),
205.
Gale v. Kalamazoo (23 Mich. 344, 9
Am. Rep. 80), 80.
Galena v. Corwith (48 111. 423, 95 Am.
Dec. 557), 149.
Galesburg v. Hawkinson (75 111. 156),
5, 21, 41.
Galesburg v. Searles (114 111. 217), 114
Gallerno v. Rochester (46 U. C. Q. B.
279), 190.
Galveston v. Posnainsky (62 Tex. 118),
6, 292.
Galveston & W. R. Co. v. Galveston
(39 S. W. Rep. 96, 36 L. R. A. 33),
103.
Galveston, etc. Ry. Co. v. Harris
(Tex. Civ. App., 36 S. W. Rep.
776), 182.
Galvin v. New York (112 N. Y. 223),
306.
Gambel v. Stolte (59 Ind. 446), 125.
Gannon v. Hargadon (10 Allen, 106),
307.
Garden City v. Abbott (34 Kan. 283),
198.
Gardner, In re (68 N. Y. 467), 256.
Gardner v. Newburg Tp. (2 Johns.
Ch. 162), 122.
Gargan v. Louisville, etc. R. Co. (89
Ky. 212, 6 L. R. A. 340), 104.
Garham v. Conger (85 Ky. 583), 115.
Garrett v. Jones (65 Md. 260), 100.
Garrison v. Chicago (7 Biss. 480), 79.
Garvin v. Wiswell (83 111. 215), 145.
Garza, Ex parte (28 Tex. App. 381,
19 Am. St. Rep. 845), 69, 90.
Gas Co. v. Donnelly (93 N. Y. 557), 79.
Gas Co. v. San Francisco (9 Cal. 453),
178, 264.
Gaskill v. Dudley (6 Met. 546), 19.
Gay v. Mutual N. T. Co. (12 Mo. App.
485), 106.
Gelpcke v. Dubuque (1 Wall. 475), 153.
George v. Oxford Tp. (16 Kan. 72), 157.
George's Creek Coal Co. v. New Cen-
tral Coal Co. (40 Md. 425), 125.
German Savings Bank v. Frankj^n
Co. (128 U. S. 526), 159, 163.
Geuild v. Chicago (82 111. 472), 64.
Gianfortone v. New Orleans (61 Fed.
Rep. 64, 24 L. R. A. 592), 278, 279.
Gibbs v. Morgan (39 N. J. Eq. 136), 57.
Gibson v. Huntington (38 W. Va.
177), 297.
Gilbert- Arnold Land Co. v. Superior
(91 Wis. 353, 64 N. W. Rep. 999),
195.
TABLE OF CASES CITED.
References are to pages.
Gilchrist v. Gough (63 Ind. 588), 250.
Giles v. School Dist. (31 N. H. 304), 7.
Gilham v. Well (64 Ga. 192), 210.
Gillespie v. Lincoln (35 Neb. 34, 16
L. R. A. 349), 2Sa
Gillespie v. Rogers (146 Mass. 612), 251.
Gillison v. Charleston (16 W. Va, 282,
37 Am. Rep. 763), 311.
Gilluly v. Madison (63 Wis. 518), 311,
312.
Gillvie v. Lockport (122 N. Y. 403),
303, 305.
Oilman v. Laconia (55 N. H. 130, 20
Am. Rep, 175), 303, 312.
Oilman v. Sheboygan (2 Black, 510),
35, 36.
Gilmore v. Holt (4 Pick. 257), 195.
Gilson v. Dayton (123 U. S. 59), 163.
Giozza v. Tiernan (148 U. S. 657), 209.
Girard v. Omaha, etc, Ry. Co. (14 Neb.
270), 125.
Girard v. Philadelphia (7 Wall., U. S.,
1), 26.
Gladstone v. Throop (71 Fed. Rep.
341, 37 U. S. App. 481), 152.
Glantz v. Bend (106 Ind. 305), 296.
Glass Co. v. Ashbury (49 CaL 571),
177.
Glasscock v. Lyons (20 Ind. 1, 83 Am.
Dec. 299), 237.
Glessner v. Anheuser-Busch Ass'n
(100 Mo. 508), 102.
Goddard's Case (16 Pick. 504, 28 Am.
Dec. 259), 211.
Goddard v. Hartwell (33 Am. St. Rep.
373), 269.
Goddard v. Seymour (30 Conn. 349),
265.
Goerler v. Georgetown (6 Wheat,
V S., 593), 100.
Gooch v. McGee (83 N. C. 59), 4.
Goodale v. Fennell (27 Ohio St. 426),
35.
Goodfellow v. New Tork (100 N. Y.
15), 294, 300.
Goodnow v. Ramsey Co. (11 Minn.
31), 145, 147, 148, 149.
Goose River Bank v. Willow Lake
School Tp. (1 N. Dak. 26), 259.
Gosheii v. England (119 Ind. 368, 5
L. R, A. 253), 292.
Goshen v. Myers (119 Ind. 196), 30a
Gould v. Topeka (32 Kan. 485), 295.
Govern v. State (48 N. J. L. 612,9 AtL
Rep. 577), 57.
Graham v. Albert Lea (48 Minn. 201,
50 N. W. Rep. 1108), 299.
Graham v. Carondelet (33 Mo. 262),
186.
Granby v. Thurston (23 Conn. 416),
44.
Grand Rapids v. Blakely (40 Mich.
367), 264
Grand Rapids v. Braudy (105 Mich.
670, 32 L. R. A. 116), 204, 210, 211.
Grand Rapids v. Newton (Mich.,
1896, 35 L. R. A. 226), 212,
Grand Rapids B. Co. v. Jarvis (30
Mich. 308), 123.
Grand Rapids Electric Co. v. Grand
Rapids Gas Co. (33 Fed. Rep. 659),
69, 98.
Grank v. Stillwater (35 Minn. 242),
270.
Grant v. Davenport (36 Iowa, 396),
108, 170, 174.
Grant v. Erie (69 Pa. St. 420, 8 Am.
Rep. 272), 275, 281.
Grant Co. v. Lake Co. (17 Oreg. 453),
170.
Gratiot v. Mo. Pac, Ry. Co. (116 Mo.
450, 16 L. R, A. 189), 205.
Graves v. Shattuc (35 N. H. 257), 98.
Gray v. Iowa Land Co. (26 Iowa,
387), 96.
Gray v. McWilliams (98 CaL 157, 21
L. R. A. 593), 307.
Great Falls Bank v. Farmington (41
N. a 32), 147.
Green v. Cape May (41 N. J. L. 46),
178, 179.
Green v. Harrison County (61 Iowa,
311), 29a
Green v. Reading (9 Watts, Pa., 382),
3ia
Green v. Spenser (67 Iowa, 410), 257.
Green v. Savannah (6 Ga. 1), 86.
Green v. Ward (82 Va. 324), 70.
Green County v. Eubanks (80 Ala,
204), 5.
Greensborough v. Ehrenruch (80 Ala.
579, 60 Am. Rep. 130), 86, 88, 210.
xl
TABLE OF CASES CITED.
References are to pages.
Greenville W. W. Co. v. Greenville
(70 Miss. 669), 80.
Greenwood v. Louisville (13 Bush,
226, 26 Am. Rep. 263), 283, 292.
Gregory, Ex parte (20 Tex. App. 210,
54 Am. Rep. 516), 91.
Gregory v. Bridgport (41 Conn. 76),
75.
Gregory v. New York (113 N. Y. 416),
245.
Grenada Co. v. Brogden (112 U. S.
261, 7 Am. & Eng. Corp. Cas. 329),
151.
Gridley v. Bloomington (88 111. 554,
30 Am. Rep. 566), 211.
Griffin v. Inman (57 Ga. 370), 157.
Grim v. Weisenberg School District
(57 Pa. St. 433), 265, 266.
Grimes v. Keene (52 N. H. 335), 289.
Grinnell v. Des Moines (57 Iowa, 144),
112, 178.
Grogan v. San Francisco (13 Cal. 590),
28, 39, 134.
Grossenbach v. Milwaukee (65 Wis.
31, 56 Am. Rep. 614), 302,
Grossman v. Oakland (37 L. R. A.
593), 88.
Grousch v. State (42 Ind. 547), 214.
Grove Street, In re (61 Cal. 438),
124.
Grube v. St. Paul (34 Minn. 402),
282.
Grummon v. Raymond (1 Conn. 40,
6 Am. Dec. 200), 249.
Gude v. Mankato (30 Minn. 256),
304.
Guerrero, In re (69 Cal. 88), 215.
Guilder v. Otsego (20 Minn. 74), 38.
Guilford v. Supervisors (18 Barb. 615,
13 N. Y. 144), 39, 40.
Gullikson v. McDonald (62 Minn.
278), 279, 280, 284.
Gunn, In re (9 L. R. A. 519), 233.
Gurnee v. Chicago (40 111. 165), 111.
Gustafson v. Ha mm (56 Minn. 334),
102.
Guthrie v. Territory (1 Okla. 188, 21
L. R A. 841), 320.
Gutzweller v. People (14 111. 142), 34.
Guy v. Washburn (23 Cal. Ill), 266.
H.
H., etc. v. Norfolk (6 Allen, Mass.,
353), 38.
Haag v. Board (60 Ind. 511, 28 Am.
Rep. 654), 271, 272.
Hager v. Reclamation Dist. (Ill U. S.
701), 112.
Hager v. Supervisors (47 CaL 222),
112.
Hagerston v. Sehner (37 Md. 180), 279.
Halbren v. Campbell (82 Mich. 255,
9 L. R. A. 408), 256.
Haldeman v. Penn. Ry. Co. (50 Pa.
St. 435), 120.
Hale v. Houghton (8 Mich. 458), 87.
Halgren v. Campbell (82 Mich, 255,
9 L. R. A. 408), 234, 244.
Hall v. Bray (51 Mo. 288), 63.
Hall v. Houghton (8 Mich. 451), 138.
Hall v. Lauderdale (46 N. Y. 70),
247.
Hall v. Ray (40 Vt. 576, 94 Am. Dec.
440), 221.
Hallenbeck v. Hahn (2 Neb. 377), 153.
Halsey v. Rapid Tr. St. Ry. Co. (47
N. J. Eq. 380, 20 Atl. Rep. 859),
105, 106, 178.
Hamilton Gas L. Co. v. Hamilton
City (146 U. S. 258), 142.
Hamlin v. Meadville (6 Neb. 227), 23,
149.
Hamm v. New York (70 N. Y. 460),
285.
Hammer v. State (44 N. J. L. 667),
57, 62.
Hammett v. Philadelphia (65 Pa. St.
146), 110, 111.
Hampshire Co. v. Franklin Co. (16
Mass. 75), 44. »
Hancock v. Chicot Co. (32 Ark. 575),
145.
Hancock v. Hazzard (12 Gush. 112,
59 Am. Dec. 171), 254.
Hand v. Brookline (126 Mass. 824),
288.
Hand v. Newton (92 N. Y. 88), 134
Handley v. Howe (22 Me. 562), 250.
Hani ford v. Kansas City (103 Mo. 172),
292.
TABLE OF CASES CITED.
ili
References are to page*.
Hanlin v. Chicago, etc. Co. (61 Wis.
515), 307.
Hannibal v. Fauntleroy (105 U. S.
408), 157.
Hannibal v. Marion Co. (69 Mo. 571),
23.
Hanson v. Vernon (27 Iowa, 38, 53), a
Hardenbrock v. Town of Legonier
(95 Ind. 70), 199.
Hardy v. McKinney (107 Ind. 367),
129.
Harker v. Des Moines Co. (34 Iowa,
84), &
Harmon v. Chicago (110 m. 400), 199.
Harmon v. St. Louis (38 & W. Rep.
1102), 88, 89, 277.
Harper v. Milwaukee (30 Wis. 365),
310.
Harrington v. Buffalo (121 N. Y. 147),
302.
Harrington v. Lansingburg (110 N. Y.
145), 270.
Harrington v. Town of Plain View
(27 Minn. 224, 229, 6 N. W. Rep.
777), 6, 153.
Harris v. Atlanta (62 Ga. 290), 280.
Harris v. School District (28 N. H.
58), 7.
Harris v. State (92 Miss. 960, 33 L. R
A. 85), 221.
Harrisburg v. Segelbaum (151 Pa St.
348), 110.
Harrison v. Baltimore (1 Gill, Md.,
202), 86.
Harshman v. Bates (92 U. S. 569), 157.
Hart v. Bridgeport (13 Blatcht 289),
27a
Hart v. Murray (48 Ohio St. 605), 53.
Hart v. New Orleans (12 Fed. Rep.
292), 325.
Hart v. Red Cedar (63 Wis. 634), 29a
Hartford v. Talcott (48 Conn. 525),
soa
Hartford County v. Wise (75 Md. 38),
304.
Harvard v. Drainage Co. (51 m. 130),
31.
Harvey v. Hillsdale (86 Mich. 330, 49
N. W. Rep, 141), 270.
Harwood v. Marshall (9 Md. 83), 256,
319.
Harwood v. Shaw (126 HI. 53), 129.
Hasbroucke v. Milwaukee (21 Wis.
219), 39.
HaskelL, In re (112 CaL 412, 32 L. R
A. 527), 181, 194.
Haskell v. Bartlett (34 Cal. 281), 190.
Hathaway v. Hinton (1 Jones, N. C.,
243), 252,
Haupt's Appeal (125 Pa. St 211, 3 L.
R A. 536), 139.
Haus v. Bethlehem (134 Pa, St 13, 19
AtL Rep. 437), 313.
Hausmann v. Madison (85 Wis. 187,
21 L. R A. 263), 302.
Havens v. Lathene (75 N. C. 505), 254.
Hawes v. Chicago (158 ILL 653, 30 L.
R A. 225), 202.
Hawkins v. Carroll Co. (50 Miss. 735),
150.
Hawkins v. Huron (2 U. P. C. C. P.
72), 182,
Hawkins v. Sanders (45 Mich. 491),
101.
Hawley v. City of Atlantic (92 Iowa,
172, 60 N. W. Rep. 519), 297.
Hayden v. Noyes (5 Conn. 391), 201.
Hayes, Ex parte (98 CaL 555, 20 L. R
A. 701), 86, 209.
Hayes v. Douglass Co. (92 Wis. 429,
31 L. R A. 213), 15a
Hayes v. Holly Springs (114 U. S.
120), 156.
Hayes v. Hyde Park (153 Mass. 514,
12 L. R A. 249), 296.
Hayes v. Oshkosh (33 Wis. 314, 14
Am. St Rep. 760), 280, 282.
Hayes v. Porter (22 Me. 371), 25a
Hayne v. Cape May (50 N. J. L. 55),
19a
Haynes, In re (54 N. J. L. 6), 59.
Hays v. Oil City (11 AtlT Rep. 63), 238.
Hay ward v. School District (2 Cush.
419), 220.
Haywood v. Buffalo (14 N. Y. 534),
322,
Hazzard v. Council Bluffs (79 Iowa,
106), 312.
Health Dept v. Rector (145 N. Y. 32,
27 L. R A. 710), 84
Heath v. Des Moines, etc. R Co. (61
Iowa, 11), 102.
xlii
TABLE OF CASES CITED.
References are to pages.
Heath v. Fond du Lac (63 Wis. 228),
811.
Heeney v. Sprague (11 R. L 456, 23
Am. Rep. 502), 303.
Heine v. Levee Com'rs (19 Wall,
U. S., 655), 318.
Heiser v. New York (104 N. Y. 68),
314.
Heiskell v. Baltimore (65 Md. 125, 57
Am. Rep. 308), 222, 223.
Heiskell v. Mayor (65 Md. 125, 4 Atl.
Rep. 116), 68.
Helen v. Lowell (3 Allen, Mass., 407),
195.
Helena Consol. Wat. Co. v. Steele (49
Pac. Rep. 382, 37 L. R. A. 412), 14,
139.
Heller v. Seclalia (53 Mo. 159, 14 Am.
Rep. 444), 281.
Heller v. Stremmel (52 Mo. 309), 7.
Henderson v. County Court (50 Mo.
317, 11 Am. Rep. 415), 63.
Henderson v. Davis (106 N. C. 88),
1C1
Henderson v. Minneapolis (32 Minn.
319), 309, 314.
Henkes v. Minneapolis (42 Minn. 530),
302.
Henley v. Lyme (5 Bing. 91), 223.
Hennepin v. Bartleson (37 Minn. 343),
110.
Henry v. Sprague (11 R. I. 457, 23
Am. Rep. 502), 195.
Henry Co. v. Soper (26 Iowa, 264), 5.
Hensley v. People (82 III. 544), 152.
Herschoff v. Beverly (43 N. J. L. 139),
130.
Herzo v. San Francisco (33 Cal. 134),
177.
Hess v. Pegg (6 Nev. 23), 63.
Hewitt's Appeal (88 Pa. St. 55), 41.
Hewitt v. School Dist. (94 111. 528),
149.
Higby v. Bunce (10 Conn. 567), 188,
189.
Higginson v. Nahant (11 Allen, 532),
122.
Hill v. Boston (122 Mass. 344), 11, 291,
292, 306.
Hill v. Boyland (40 Miss. 618), 182.
Hill v. Charlotte (72 N. C. 55, 21 Am.
Rep. 451), 278.
Hill v. Easthampton (140 Mass. 381),
153.
Hill v. Fond du Lac (56 Wis. 242),
294
Hill v. McNichol (76 Me. 815), 250.
Hill v. Memphis (134 U. S. 198), 149,
150.
Hill v. Rensselaer County (119 N. Y.
344), 279.
Hill v. Territory (Wash., 7 Pac. Rep.
63), 227.
Hine v. Keokuk, etc. R. Co. (42 Iowa,
636), 101.
Hine v. Robbins (8 Conn. 347), 250.
Hines v. Charlotte (72 Mich. 278, 1
L. R. A. 844), 271.
Hines v. Lockport (50 N. Y. 236), 298.
Hinze v. People (92 111. 406), 65, 226.
Hitchcock v. Galveston (96 U. S. 351),
70, 259, 2GO.
Hitchins v. Frostburg (69 Md. 100),
811, 312.
Hoboken v. Gear (27 N. J. L. 267), 191.
Hockett v. State (105 Ind. 250), 4.
Hodges v. Buffalo (2 Denio, 110), 153,
274.
Hodgman v. Chicago, etc. Ry. Co. (20
Minn. 48), 152, 155, 156, 159.
Hoffmann v. Greenwood Co. (23 Kan.
307), 239.
Hoglan v. Carpenter (4 Bush, Ky.,
86), 230.
Hogland v. Sacramento (15 Cal. 142),
38.
Holden v. Smith (3 Moore, P. C. C.
75), 249.
Holdenell, Ex parte (74 Mo. 401), 196.
Holland v. Baltimore (11 Md. 18JJ&
323.
Hollandbeck v. Winnebago County
(95 III 148, 35 Am. Rep. 151), 256.
Hollenbeck v. Marshalltown (62 Iowa,
21), 132.
Holmes v. Shreeveport (31 Fed. Rep!
113), 149.
Holt Co. v. Scott (Neb., 1898, 73 N.
W. Rep. 681), 226, 231, 232.
Holton v. Milwaukee (31 Wis. 27), 109.
TABLE OF CASES CITED.
xliii
References are to pages.
Holwedell, Ex parte (74 Mo. 395),
132.
Homestead St Ry. Co, v. Pittsburgh,
etc. Ry. Co. (166 Pa. St. 162, 27
L. R A. 383), 102.
Hood v. Lynn (1 Allen, 103), 70, 15a
Hoole v. Kincaid (16 Nev. 217), 77.
Hooper v. Creager (84 Md. 197), 222.
Hooper v. Emery (14 Me. 375), ia
Hope v. Dederick (8 Humph., Tenn.,
1, 47 Am. Dec. 597), 17.
Hope v. Henderson (15 N. C. 29, 25
Am. Dec. 677), 242.
Hope v. Henderson (4 Dev. N. C. L.
1),242,
Hopkins v. Mayor (4 M. & W. 461,
640), 195.
Hopkins v. Ogden City (5 Utah, 390,
16 Pac. Rep. 596), 296.
Horton v. Mobile Com'rs (43 Ala. 598),
46.
Horton v. Shelby Co. (118 U. S. 425),
232,
Hotchkiss v. Marion (12 Mont 218, 29
Pac. Rep. 821), 171.
Hough v. Cook (44 Iowa, 639), 224.
House, Re (23 Colo. 87, 33 L. R. A.
832), 95.
House v. State (41 Miss. 737), 214.
House Roll No. 284, In re (31 Neb.
505), 154.
Houston v. Houston C. Ry. Co. (84
Tex. 581), 80.
Hover v. Barkhoff (44 N. Y. 113, 125),
252.
How v. People (88 I1L 389), 190.
Howard v. Huron (S. D., 59 X. W.
Rep. 833, 60 N. W. Rep. 803), 162,
318.
Howard v. Manufacturing Co. (1S9
U. S. 199), 76.
Howard County Com'rs v. Legg (93
Ind. 523, 47 Am. Rep. 390), 293.
Howe v. Plain field (8 Vroom, N. J.,
151), 196.
Howe v. West End St Ry. Co. (167
Mass. 46), 105.
Howe v. White (49 CaL 658), 251.
Howe v. Wright Co. (82 Iowa, 164, 47
N. W. Rep. 1036), 234,
Howes v. Chicago (158 HI. 653, 30 L.
R A. 225), 19a
Howsman v. Trenton Water Works
(119 Mo. 304, 23 L. R A. 146), 268,
281.
Hoyt v. Danbury (69 Conn. 341), 300.
Hoyt v. East Saginaw (19 Mich. 39),
109, 184.
Hoyt v. Hudson (27 Wis. 656, 9 Am.
Rep. 473), 30a
Hubbard v. Concord (35 N. EL 52, 69
Am. Dec, 520), 294.
Hubbard T. Linden (48 Wis. 674), 145.
Hubbell v. Viroqua (67 Wis. 343, 58
Am. Rep. 866X 277.
Hudson v. Marlborough (154 Mass.
218, 28 N. K Rep. 147), 296.
Hu Ison, Freeholders of, v. Buck (51
N. J. L. 155), 57.
Hudson R T. Co. v. Waterveldt Tp.
(135 N. Y. 393, 17 L. R A. 674),
101.
Huesing v. Rock Island (128 111. 465,
15 Am. St Rep. 129), 67, 86.
Hughes v. Lawrenceburg (37 S. W.
Rep. 257), 284.
Hughes v. Milligan (42 Kan. 396, 23
Pac, Rep. 313), 6a
Hughes v. Monroe County (147 111.
49), 284, 285.
Hughes v. Recorder's Court (75 Mich.
574, 4 L. R A. 863), 9a
Hughson v. Crane (115 CaL 404), 152.
Huling v. Kaw Valley R Co. (130
U. S. 559), 125.
Hume v. New Haven (40 Conn. 478),
2ia
Hungerford v. Hartford (39 Conn.
279), 112.
Huntv. Chicago, etc, Ry. Co. (121
HL 638), 102.
Hunt v. New York (109 N. Y. 134),
293.
Hunter v. Chandler (45 Ma 452), 237.
Hunter v. Farren (127 Mass. 481), 89.
Hursh v. Warner (102 Mich. 238, 26
L. R A. 484). 86.
Huston v. Council Bluffs (Iowa, 69
X. W. Rep. 1130, 36 L, R A. 211),
soa
xliv
TABLE OF CASES CITED.
References are to pages.
Hutchings v. Sullivan (Me., 37 Atl.
Rep. 883), 299.
Hutchins v. Mt. Vernon (40 111. App.
19), 191.
Hutchinson v. Ypsilanti (103 Mich.
12, 61 N. W. Rep. 279), 302.
Hutt v. Chicago (132 111. 352), 115.
Hyde v. Franklin Co. 27 Vt. 185),
145.
Hydes v. Joyes (4 Bush, 464, 96 Am.
Dec. 311), 71.
Inchbold v. Robinson (L. R 4 Ch.
App. 388), 89.
Indiana v. Consumers' Gas T. Co.
(140 Ind. 107, 27 L. R A. 514), 100.
Illinois v. Canal Co. (2 Dill. C. C. 70),
135.
Illinois Cent. R. Co. v. Bloornington
(76 111. 447), 198.
Illinois Cent. R. Co. v. Decatur (126
111. 92, 1 L. R A. 613), 115.
Illinois Cent. R. Co. v. People (143
111. 434, 19 L. R A. 119), 316.
Illinois Cent. R Co. v. People (161
III 244), 117.
Illinois Trust & Savings Bank v. Ar-
kansas City (76 Fed. Rep. 271, 40
U. S. App. 257, 34 L. R A. 518),
23, 28, 76, 80, 81, 139, 177, 179, 259,
261.
Illinois & M. Canal v. Chicago (12
111. 403), 115.
Indianapolis v. Bieler (138 Ind. 30), 90.
Indianapolis v. Buffer (30 Ind. 235),
309.
Indianapolis v. Imbery (17 Ind. 175),
178, 179.
Indianapolis v. Indianapolis, etc. (66
Ind. 390), 79.
Indianapolis v. Indianapolis Home,
etc. (12 Ind. 215), 33.
Indianapolis v. Ind. Gas L. Co. (66
Ind. 396), 100.
Indianapolis v. Miller (27 Ind. 394),
179.
Indianapolis v. Wanii (144 Ind. 175,
4 N. E. Rep. 901, 31 L. R. A. 743),
79, 174
Indianapolis, etc. Ry. Co. v. Hartley
(67 111. 439, 16 Am. Rep. 624), 104,
107.
Indianapolis & C. R. Co. v. Lawrence-
burg (34 Ind. 304), 103.
Indianola v. Jones (29 Iowa, 282), 188.
Indianola v. G. W. T. & P. R Co. (56
Tex. 594), 103.
Ingaman v. Chicago (78 111. 405), 201.
Inhabitants of Quincy v. Kennard
(151 Mass. 563), 215.
Inman v. Tripp (11 R. I. 520), 308.
International Bank v. Franklin Co.
(65 Mo. 105, 27 Am. Rep. 241), 146.
Interstate V. B. & P. Co. v. Phila-
delphia (164 Pa. St. 477), 77.
Iowa Land Co. v. Carroll (39 Iowa,
151), 5.
Iowa Land Co. v. County of Sac (39
Iowa, 149), 177.
Irvine v. Wood (51 N. Y. 224, 10 Am.
Rep. 603), 101.
Irwin v. Great So. TeL Co. (37 La.
Ann. 63), 104,
Israel v. Jewett (29 Iowa, 475), 128.
Ivanhoe v. Enterprise (35 L. R. A. 58,
29 Greg. 245), 109, 117, 118.
Iverson v. Indianapolis, etc. (39 Fed.
Rep. 735), 83.
Ives v. Hulet (12 Vt, 314), 247.
Ivory v. Deerpark (116 N. Y. 476), 294,
298.
J.
Jackson v. Michigan (9 Mich. Ill),
324.
Jackson v. Newman (59 Miss. 385,
42 Am. Rep. 367), 91.
Jackson v. People (9 Mich. 11), 324.
Jackson Co. v. Brush (77 111. «69),
156.
Jackson Co. H. R. Co. v. Interstate,
etc, (24 Fed. Rep. 306), 81.
Jacksonville v. Electric Light Co.
(36 Fla. 229, 30 L. R. A. 540), 138.
Jacksonville v. Ledwith (26 Fla. 163,
23 Am. St. Rep. 558), 177; 184, 195.
Jacksonville, etc. Ry. Co. v. Adams
(33 Fla. 608, 24 L. R A. 272), 125.
Jacksonville, etc. Ry. Co. v. Walsh
(106 III 253), 126.
TABLE OF CASES CITED.
xiv
References are to pages.
Jacksonville Elec. L. Co. v. Jackson-
ville (30 L. R A. 540), 138.
Jacksonville R R Ca v. Virden (104
111. 339), 157.
Jacobs, In re (98 N. Y. 98, 50 Am.
Rep. 636), 84,
Jameson v. Denny (118 Ind. 449, 4
L. R A. 79), 33.
Jameson v. People (16 HI. 257, 63 Am.
Dec. 304), 17, 20.
Jefferson v. Chapman (127 111. 438),
270.
Jefferson Co. v. Arrighi (54 Miss. 668),
148.
Jefferson Co. Com'rs v. Lineburger
(3 Mont. 231, 35 Am. Rep. 562),
254
Jeffries v. Harrington (11 Colo. 191),
225.
Jeffries v. Rowe (63 Ind. 592), 227.
Jenks v. Township (45 Iowa, 554), 326.
Jenks Tp. v. Sheffield Tp. (135 Pa. St.
400, 19 Atl. Rep. 1004), 47.
Jenny v. Brooklyn (120 N. Y. 164),
307.
Jensen v. Board (47 Wis. 298), 38.
Jensen v. Waltham (166 Mass. 344),
271.
Jersey City, etc. Ry. Co. v. Railroad
Co. (20 N. J. Eq. 61), 102.
Jewell v. Gilbert (64 N. H. 13, 10 Am.
St. Rep. 357), 231.
Jewett v. New Haven (38 Conn. 368,
9 Am. Rep. 382), 282.
Jewhurst v. Syracuse (108 N. Y. 303),
294, 299.
John v. Mayor (7 Eng. Rul. Cas. 278),
91.
Johnson v. Board (107 Ind. 15), 63, 64.
Johnson v. Indianapolis (16 Ind. 227),
21.
Johnson v. Joliet, etc, R Co. (23 111.
202), 125.
Johnson v. Mayor of Croyden (1886,
16 Q. B. D." 708, 7 Eng. RuL Cas.
278), 202, 207.
Johnson v. San Diego (109 Cal. 468,
30 L. R A. 178), 44.
Johnson v. Simonton (33 CaL 242, 249),
195.
Johnson v. Wells Co. (107 Ind. 15), 63.
Johnson Co. v. Thayer (94 U, S. 631),
156, 159.
Jolly v. Hawesville (89 Ky. 278), 279.
Jones v. Boston (104 Mass. 75, 6 Am.
Rep. 194), 101, 111.
Jones v. Clinton (Iowa, 69 N. W. Rep.
418), 305.
Jones v. Detroit Bd. etc, (88 Mich.
371), 83.
Jones v. Hannoran (55 Mo. 462), 307.
Jones v. Billiard (68 Ala, 300), 214.
Jones v. Insurance Co. (2 Daly, N. Y.,
307), 195.
Jones v. Jefferson (66 Tex. 573), 242,
Jones v. New Haven (34 Conn. 1), 307.
Jones v. Richmond (18 Grat. 517), 94.
Jones v. Robins (8 Gray, 329), 102.
Jones v. Scanlan (6 Humph., Tenn.,
195), 231.
Jordan v. Benwood (W. Va., 26 S. E.
Rep. 266), 309.
Jordan v. Hannibal (87 Ma 673), 304.
Jordan v. Hansom (49 N. H. 199, 6
Am. Rep. 508), 248.
Jordon v. Cass Co. (3 Dillon, 185), 19.
Judge v. ' r, riden (38 Conn, 90), 312.
Julia Biu^. Ass'n v. Bell TeL Co. (88
Mo. 258), 104, 106.
Justices v. Armstrong (3 Dev. 284),
19.
K.
Kahn v. Sutro (114 Cal. 316, 46 Pac,
Rep. 87, 33 L. R A. 620), 5.
Kane v. Fond du Lac (40 Wis. 495), 82,
Kansas City v. Birmingham (45 Kan.
212, 25 Pac, Rep. 569), 292.
Kansas City v. Cook (30 Mo. App,
6GOj, 20a
Kansas City v. Corrigan (86 Ma 67),
198.
Kansas City v. Garnier (57 Kan. 412,
46 Pac. Rep. 707), 211.
Kansas City v. Kansas City Belt Ry.
Co. (102 Ma G33, 10 L. R A. 851),
127.
Kansas City v. Marsh Oil Ca (41 S.
W. Rep. 943), 120.
xlvi
TABLE OF CASES CITED.
References are to pages.
Kansas City v. Whipple (136 Mo. 475,
35 L. R. A. 746), 225.
Kansas City Ry. Co. v. Alderman (47
Mo. 349), 159.
Karst v. St. Paul, etc. R. Co. (22 Minn.
118), 314.
Katzenberger v. Aberdeen (121 U. S.
173), 151.
Kauffman v. Griesemer (26 Pa. St.
407, 67 Am. Dec. 437), 308.
Kaukauna Water Co. v. Green Bay
Canal Co. (142 U. S. 254), 120.
Kaufmann v. Stein (138 Ind. 49, 46
Am. St. Rep. 368), 210.
Keihl v. City of South Bend (76 Fed.
Rep. 921), 173, 175.
Keller v. Corpus Christi (50 Tex. 614,
32 Am. Rep. 613), 282.
Kelley v. Madison (43 Wis. 638), 257.
Kelley v. Mayor (4 Hill, N. Y., 265),
145, 147.
Kelley v. Milan (127 U. S. 139), 149,
150, 151, 162.
Kelley v. Minneapolis (57 Minn. 294,
26 L. R. A. 92), 100.
Kellogg v. Malin (50 Mo. 496), 120.
Kellogg v. Janesville (34 Minn. 132),
300, 301.
Kelly v. Chicago (62 111. 279), 77, 79.
Kelly v. Minneapolis (63 Minn. 125,
65 N. W. Rep. 115, 30 L. R. A.
281), 36, 172.
Kelly v. Pittsburgh (104 U. S. 156), 5.
Kelly v. State (92 Ind. 236), 63.
Kelly v. Meeks (87 Mo. 396), 42.
Kelsey v. Marquette F. & W. Com'rs
(71 N. W. Rep. 589), 137.
Kemper v. Louisville (14 Bush, 87),
131.
Kempster v. City of Milwaukee (Wis.,
1897, 72 N. W. Rep. 734), 234, 237.
Kendall v. Frey (74 Wis. 26, 17 Am.
St. Rep. 118), 228, 240.
Kennedy v. Cumberland (65 Md. 514),
292.
Kennedy v. New York (73 N. Y. 365),
287.
Kenner v. Louisiana (92 U. S. 480),
Kennelly v. Jersey City (57 N. J. L.
293, 26 L. R A. 281), 101, 102, 105.
244,
Kenney v. Goergen (36 Minn. 90), 231.
Kennison v. Beverly (146 Mass. 467),
311.
Kentucky v. Dennison (24 How., U. S.,
66, 97), 316.
Keokuk v. Independent District (53
Iowa, 352, 36 Am. Rep. 226), 299.
Keokuk v. Keokuk P. Co. (45 Iowa,
190), 136.
Kepner v. Commonwealth (40 Pa. St.
124), 176, 177, 187.
Kerr v. Jones (19 Ind. 351), 231.
Kessel v. Zeiser (102 N. Y. 114, 55
Am. Rep. 769), 237.
Ketchum v. Buffalo (14 N. Y. 356),
133.
Kichli v. Minn. Brush Electric Co.
(58 Minn. 418), 174.
Kies v. Erie (135 Pa. St. 144), 279.
Kies v. Erie (109 Pa. St. 598), 297.
Kiley v. Forsee (57 Mo. 390), 184.
Kilgore v. Magee (85 Pa. St. 401), 55,
57.
Kimball v. Boston (1 Allen, 417), 30,
279.
Kimball v. Marshall (44 N. H. 465),
221.
Kimberlane v. Tow (130 Ind. 120, 14
L. R. A. 858), 241.
Kimble v. Peoria (140 III 156, 29 N. E.
Rep. 723), 189.
Kincaid v. Hardin County (53 Iowa,
430, 36 Am. Rep. 236), 306, 325.
Kincaid v. Indianapolis Nat. Gas. Co.
(124 Ind. 577, 8 L. R. A. 602), 106.
Kindiger v. Saginaw (59 Mich. 355),
131.
King v. Butler (15 Johns., N. Y., 281),
247.
King v. Davenport (98 III. 305), 8£, 93.
King v. Mahaska Co. (75 Iowa, 329),
259.
King v. Minneapolis (32 Minn. 224),
126, 127.
King v. Williams (2 Maule & Sel. 141),
221.
Kingsbury v. Sperry (119 111. 279), 47.
Kingsley v. Chicago (124 III. 359, 19
N. E. Rep. 260), 91.
Kingston v. Dubois (102 N. Y. 219),
295.
TABLE OF CASES CITED.
xlvii
References are to pages.
Kinmundy v. Mahan (72 111. 463), 71,
214.
Kinney v. Troy (108 N. Y. 567), 302.
Kinney v. United States (60 Fed. Rep.
883), 234
Kipp v. Paterson (26 N. J. L. 298),
202.
Kirth v. Howard (24 Pick. 292), 249.
Kistnei v. Indianapolis (100 Ind. 210),
102.
Klatt v. Milwaukee (53 Wis. 196), 295.
Klein v. New Orleans (99 U. S. 149),
325.
Klinger v. Bickel (117 Pa. St. 326), 93.
Knapp v. Hoboken (39 K J. L. 394),
149.
Knee'dler v. Norristown (100 Pa. St.
368), 202.
Knickerbocker v. People (102 III 218),
59.
Knight v. Nash (22 Minn. 456), 326.
Knightstown v. Musgrove (116 Ind.
121, 9 Am. St Rep. 827), 292.
Knoedler v. Norristown (100 Pa. St.
368), 93.
Knoglauch v. Railway Co. (31 Minn.
402), 205.
Knox County v. Aspinwall (24 How.,
U. S., 376), 163, 3ia
Knox County v. Goggin (105 Mo. 182,
16 S. W. Rep. 684), 133.
Knox County v. Johnson (124 Ind.
145, 7 L. R. A. 684), 226, 317.
Knox County v. Nichols (14 Ohio St
260), 156.
Knoxville v. Bell (12 Lea, Tenn.,
157), 292.
Knoxville v. Byrd (12 Lea, Tenn.,
121), 93.
Kobs v. Minneapolis (23 Minn. 159),
270.
Koch v. North Ave. Ry. Co. (75 Md.
222, 15 L. R. A, 377), 101, 105, 194,
308.
Kochersperger v. Markley (166 HL
48. 46 N. E. Rep. 742), 110.
Kohl v. United States (93 U. S. 367),
119, 125.
Kosmak v. New York (117 N. Y. 361,
22 N. E. Rep. 945), 312.
Kratzenberger v. Law (90 Tenn. 235,
25 Am. St. Rep. 681), 199.
Kreitz v. Behrensmeyer (149 I1L 496,
24 L. R. A. 59), 237.
Kuehn v. Milwaukee (92 Wis. 263),
284.
Kuhn v. Chicago (30 III App. 203),
211.
Kuhn v. Milwaukee (92 Wis. 263),
269.
Kunkle v. Franklin (13 Minn. 127,
Gil. 119), 151.
Kunz v. Troy (104 N. Y. 344, 10 N. R
P.ep. 442], 269, 302.
La Clef v. City of Concordia (41 Kan.
323, 13 Am. St Rep. 385), 284.
Lafayette v. Allen (81 Ind. 166), 307.
La Fayette v. Fowler (34 Ind. 140),
111.
La Fayette v. Male Orphans' Asylum
(4 La. Ann. 1), 115.
Lafayette v. Timberlake (88 Ind. 330),
299.
Lafferty v. Huffman (Ky., 35 S. W.
Rep. 123, 32 L. R. A. 203), 241.
Lahr v. Metro. Elev. Co. (104 N. Y.
268), 97.
Lake v. Palmer (18 Fla. 501), 48.
Lake v. Williamsburgh (4 Denio,
520), 147.
Lake Co. v. Graham (130 U. & 674),
167, 169.
Lake Co. v. Rollins (130 U. S. 662),
161, 170.
Lake Pleasanton Water Co. v. Con-
tra Costa Water Co. (67 CaL 659),
121.
Lake View v. Tate (130 III 247, 6 L.
R A. 58), 202, 205.
Lake View School Trustees v. Peo-
ple (87 I1L 303), 83.
Lake vi He, In re (7 Kulp, 84), 4a
Lamar Water & E. L. Co. v. City of
.Lamar (128 Mo. 188, 32 L. R. A.
157), 174.
Lambert v. Alcorn (144 III 313, 21
L. R A. 611), 307.
xlviii
TABLE OF CASES CITED.
References are to pages.
Lamborn v. Dickson Co. (97 17. S.
181), 265.
Lamoille, etc. Ry. Co. v. Fairfield (51
Vt. 257), 160.
Land Co. v. Oneida (83 Wis. 649),
44.
Land, etc. Co. v. Brown (73 Wis. 294,
3 L. R. A. 472), 48, 152.
Landis v. Borough of Vineland (37
Atl. Rep. 965), 110.
Landow West v. Burtram (26 Ont.
Rep. 1G1), 179.
Lane v. Woodbury (58 Iowa, 462),
285.
Langan v. Atchison (35 Kan. 318, 57
Am. Rep. 165), 302.
Langdon v. Castleton (30 Vt. 285),
234, 238.
Langlois v. Cohoes (58 Hun, N. Y.,
226), 301, 304.
Lansing v. County Treas. (1 Dill.
C. C. 522), 35.
La Porte v. Gamewell Fire Alarm
Tel. Co. (146 Ind. 466, 45 N. E.
Rep. 588), 169, 173, 174, 175.
Laramie Co. v. Albany Co. (92 U. S.
307), 5, 23, 44.
Laredo v. Nalle (65 Tex. 359), 326.
Laredo, City of, v. Int. B. & T. Co.
(66 Fed. Rep. 246, 30 U. S. App.
110), 81.
Larkin v. Burlington, etc. Ry. Co.
(85 Iowa, 492, 52 N. W. Rep. 480),
205.
Larson v. Grand Forks (3 Dak. 307),
292.
Last Chance Min. Co. v. Tyler Min.
Co. (157 U.S. 683), 162.
Latah Co. v. Peterson (2 Idaho, 1118,
16 L. R A. 81), 121.
Lauenstein v. Fond du Lac (28 Wis.
336), 70, 71.
Launtz v. People (113 111. 137, 55 Am.
Rep. 405), 222, 226.
La Valle v. Supervisors (62 Wis. 376),
51.
Law v. People (87 111. 385), 169, 172,
175, 190,
Lawrence v. Boston (119 Mass. 126),
126.
Lawrence v. Ingersoll (88 Tenn. 52,
6 L. R. A. 308, 17 Am. St. Rep.
870), 221, 222, 256, 320.
Lawrence v. Meecham (166 Mass. 206,
44 N. E. Rep. 247), 139.
Lawrence v. Monroe (44 Kan. 607, 10
L. R. A. 520), 74, 86.
Lawrence v. Webster (167 Mass. 513,
46 N. E. Rep. 123), 110.
Lawson v. Milwaukee, etc. Ry. Co.
(30 Wis. 597), 157.
Laycock v. Baton Rouge (35 La. Ann.
475), 170.
Leach v. People (122 111. 420), 48.
Leavenworth v. Miller (7 Kan. 479),
153.
Leavenworth, etc. Ry. Co. v. Platte
Co. (42 Mo. 171), 155.
Leavenworth, etc. R Co. v. Douglas
Co. (18 Kan. 169), 156.
Leavenworth Co. v. Brewer (9 Kan.
307), 238.
Leavenworth Co. Com'rs v. Sellew
(99 U. S. 624), 318.
Lee v. Drake (2 Salk. 468), 237.
Lee v. Minneapolis (22 Minn. 13), 313.
Leech v. Wilson Co. (68 Tex. 353), 148.
Leeds v. Atlantic City (52 N. J. L.
333), 256.
Leeds v. Richmond (102 Ind. 372), 120,
273.
Leep v. St. Louis Iron Mountain R.
Co. (58 Ark. 407, 23 L. R A. 264),
52.
Leets v. Pilgrim Church (14 Mo. App.
590), 89.
Lehew v. Brummell (103 Mo. 546, 23
Am. St. Rep. 895), 83.
Lehigh Water Co.'s Appeal (102 Pa.
St. 515), 69, 140. »
Lehr v. Metr. Elev. Ry. Co. (104 N. Y.
268), 105.
Lent v. Tillson (140 U. S. 316), 110.
Leonard v. Brooklyn (71 N. Y. 498),
325.
Leonard v. Canton (35 Miss. 189), 69.
Levy v. New York (1 Sandf. 465), 277.
Levy v. Salt Lake City (3 Utah, 63),
292.
Lewis v. Colts (39 La. Ann. 259), 250.
TABLE OF CASES CITED.
xlix
References are to pages.
Lewis v. Llewellyn (53 Kan. 510, 23
L. R A. 510), 244
Lewis v. Newton (75 Fed. Rep. 884),
203.
Lewis v. Shreveport (108 U. S. 282),
150.
Lexington v. Mulliken (7 Gray, Mass.,
280), 316.
L'Herault v. Minneapolis (Minn., 72
N. W. Rep. 73), 305.
Liberty Bell, The (23 Fed. Rep. 843),
153, 323.
Liddy v. Long Island City (104 N. Y.
218), 238.
Lima v. Cemetery Ass'n (42 Ohio St.
128), 115.
Lincoln v. Boston (148 Mass. 578, 3
L. R A. 257), 271, 298.
Lincoln v. Smith (29 Neb. 228), 292.
Lincoln v. Smith (28 Neb. 762), 305.
Lincoln v. Washburn (148 Mass. 578,
3 L. R. A. 257), 278.
Lincoln v. Worcester (8 Gush. 55),
264.
Lindall v. Covington (90 Ky. 444, 29
Am. St Rep. 398X 201.
Lindley v. Polk County (50 N. W.
Rep. 975), 284.
Lindsay Irr. Co. v. Mehrtens (97 CaL
676), 121.
Linegar v. Rittenhouse (94 I1L 208),
240.
Linn v. Adams (2 Ind. 143), 252.
Linn v. Chambersburg (160 Mass. 511,
25 L. R. A. 217), 138.
Liquidators v. Municipality (6 La.
Ann. 21), 36.
Lipes v. Hand (104 Ind. 503), 128.
Lippelman v. Cincinnati (4 Ohio C. C.
327), 71.
List v. Wheeling (7 W. Va. 501), 169.
Litchfield v. Ballou (114 U. S. 190),
169.
Little v. Madison (49 Wis. 605*), 29S,
299.
Littlefield v. State (42 Neb. 223, 47
Am. St. Rep. 697), 203, 208.
Littler v. Jayne (124 111. 123), 79.
Little Rock v. Parish (36 Ark. 160), 63.
Livingstone v. Wolf (136 Pa. St. 519,
20 Am. St Rep. 937), 100.
Lloyd v. New York (5 N. Y. 369, 55
Am. Dec. 347), 267.
Loan Ass'n v. Topeka (20 WalL, U. S.,
655), 52, 154, 160, 161.
Lock v. City of Central (4 Colo. 65,
34 Am. Rep. 66), 234
Locke's Appeal (72 Pa. St. 491), 214
Lockhart v. Railway Co. (139 Pa. St
419), 105.
Logan v. Pyne (43 Iowa, 524, 22 Am.
Rep. 261), 69, 80.
Lombard v. Culbertson (59 Wis. 433),
251.
London v. Wood (12 Mod. 674), 131.
Long v. Duluth (49 Minn. 287), 69, 80,
81, 138, 140.
Long v. Fuller (68 Pa. St. 170), 129.
Long Branch v. Sloane (49 N. J. L.
356), 56, 62.
Longe v. Benedict (73 N. Y. 12),
248.
Longworth v. Council (32 Ind. 322),
63, 65.
Look v. Industry (51 Me. 375), 264
Lord v. Anoka (36 Minn. 176), 220.
Lord v. Mobile (Ala., 21 So. Rep. 366),
298, 300.
Lord v. Oconto (47 Wis. 386), 134.
Lorence v. Ellensburg (13 Wash. 341,
52 Am. St. Rep. 42), 305.
Los Angeles v. Teed (112 CaL 319,
44 Pac. Rep. 580), 171.
Los Angeles v. Waldren (65 Cal. 283),
179.
Louis v. Bourbon Co. (12 Kan. 186),
156.
Louisiana v. Police Jury (111 U. S.
716), 31&
Louisiana v. Pilsbury (105 U. & 278),
35.
Louisiana v. Wood (102 U. S. 294),
262, 26a
Louisville, etc. Co. v. N. R Co. (14
L, R A. 579), 226.
Louisville, etc. R. Co. v. Pritchard
(131 Ind. 564, 11 Am, St Rep.
395), 293.
Love v. Atlanta (95 Ga. 129, 51 Am.
St. Rep. 64), 284
Love v. Raleigh (116 N. C. 296, 28 L,
R A. 192), 271.
TABLE OF CASES CITED'.
References are to pages.
Love v. Schenck (12 Ired., N. C., 304),
38.
Lover v. Glochin (28 Wis. 364), 232.
Lowber v. Mayor (5 Abb. Pr., N. Y.,
325), 5.
Lowell v. Boston (111 Mass. 454, 15
Am. Rep. 39), 155.
Lowry v. Polk Co. (51 Iowa, 50, 33
Am. Rep. 113), 254.
Lowry v. Rainwater (70 Mo. 152, 35
Am. Rep. 420), 85.
Lozier v. Newark (48 N. J. L. 452),
199.
Luce v. Board of Exam. (153 Mass.
108), 256.
Ludlow v. Cincinnati S. R. Co. (78
Ky. 357), 114.
Lund v. Chippewa Co. (93 Wis. 640,
67 N. W. Rep. 927, 34 L. R. A.
131), 108, 148.
Lycoming v. Union (15 Pa. St. 166,
53 Am. Dec. 571), 18, 37, 39.
Lyell v. Lapeer Co. (6 McLean, C. C.,
446), 146.
Lynch v. New York (76 N. Y. 60), 811.
Lynchburg v. Slaughter (75 Va. 57),
162.
Lyon v. Adamson (7 Iowa, 509), 247.
Lyon v. Cambridge (136 Mass. 419),
295.
Lyon v. Lynd (44 Pa. St. 336), 319.
M.
McAleer v. Angell (R. L, 1897, 36 Atl.
Rep. 588). 170.
McAllister v. Clark (33 Conn. 91), 85.
McAunich v. M. etc. R Co. (20 Iowa,
338), 47.
McBean v. Chandler (9 Heisk., Tenn.,
349), 114.
McBean v. Fresno (Cal., 1897, 31 L. R.
A. 794), 174.
McBride v. Grand Rapids (47 Mich.
236), 228.
McCann v. Waltham (163 Mass. 344),
271.
McCarthy v. Boston (135 Mass. 187),
271.
McCarthy v. Chicago (53 111. 38), 98.
McCarthy v. Chicago, etc. Ry. Co.
(112 111. 611), 102.
McCaull v. Manchester (85 Va. 579, 3
L. R. A. 691), 278.
McChaon v. Leavenworth Co. (8 Kan.
438), 234.
McClure v. La Platte Com'rs (19
Colo. 122), 255.
McClure v. Oxford Tp. (94 U. S. 429),
162, 163.
McComb v. Akron Council (15 Ohio,
474), 313.
McConihe v. McMurray (17 Fla. 238),
49.
McConihe v. State (17 Fla, 238), 54.
McConnell v. Dewey (5 Neb. 385), 252.
McConnell v. Osage City (80 Iowa,
29D), 300, 301.
McCool v. Grand Rapids (58 Mich. 41),
296.
McCormick v. District of Columbia
(4 Mackey, 396, 54 Am. Rep. 284),
106.
McCormick v. Pratt (8 Utah, 294, 17
L. R. A. 243), 223.
McCoull v. Manchester (85 Va. 579),
292, 295.
McCoy v. Briant (53 Cal. 248), 152,
177.
McCracken v. San Francisco (16 Cal.
591). 170.
McCrowell v. Bristol (89 Va, 652, 20
L. R. A. 653), 70, 71, 118.
McCullough v. Mayor (23 Wend. 458),
147.
McCumber v. Waukesha Co. (91 Wis.
442, 65 N. W. Rep. 51), 234.
McDade v. Chester (117 Pa. St. 414,2
Am. St. Rep. 681), 277.
McDermott v. Board (5 Abb.^r., N.
Y., 422), 195.
McDermott v. Miller (45 N. J. L. 251),
187.
McDonald v. Massachusetts General
Hospital (120 Mass. 432), 281
McDonald v. New York (68 N. Y. 23,
23 Am. Rep. 144), 260.
McDonald v. Red Wing (13 Minn. 38,
Gil. 25), 94, 281, 282.
McDonald v. State (80 Wis. 411), 184.
TABLE OF CASES CITED.
Li
References are to fages.
McDonald's Ex'r v. Murdock (15
How., U. S., 363), 133.
McDonough v. Virginia City (6 Nev.
431), 292.
McDougall v. Hennepin Co. (4 Minn.
184, Gil. 130), 326.
McDowell v. Mass. etc. Co. (96 N. C.
514), 158.
McElroy v. Albany (65 Ga, 387, 38
Am. Rep. 781), 280.
McGavock v. Omaha (40 Neb. 64, 58
N. W. Rep. 543), 17a
McGee v. Com. (46 Pa. St. 358), 114.
McGill v. State (34 Ohio St 228), 53.
McGoffin v. Cohoes (104 N. Y. 387),
257.
McGraw v. Whitson (69 Iowa, 348),
184, 185.
McGuire, In re (57 Cal. 604), 210.
McHugh v. St. Paul (Minn., 70 N. W.
Rep. 5), 294, 295.
Mclnerney v. Denver (29 Pac. Rep.
516), 57.
Mclnerny v. Reid (23 Iowa, 410), 117.
McKean v. Lee (51 N. Y. 300), 89.
McKeesport v. Soles-(178 Pa. St. 363,
35 Atl. Rep. 927), 115.
McKenzie v. "Wooley (39 La. Ann.
944), 186.
McLellan v. Young (54 Ga. 399, 21
Am. Rep. 276), 326.
McManus v. Duluth, C. & W. R Co.
(51 Minn. 30), 159.
McMillan v. Anderson (95 U. S. 37),
110.
McMillan v. Richards (45 Neb. 786, 64
N. W. Rep. 242), 241.
McNally v. Cohoes (127 N. Y. 350),
292.
McNeil v. Chamber of Com. (154
Mass. 277, 13 L. R A. 559), 77.
McPherson v. Foster (43 Iowa, 48, 22
Am. Rep. 215), 161.
McPherson v. Leonard (29 McL 377),
182.
McRae v. Hogan (39 Wis. 529), 50.
Macey v. City of Duluth (Minn., 1897,
71 N. W. Rep. 687), 238.
Macomber v. Nichols (34 Mich. 212,
•22 Am. Rep. 522), 297,
Macomber v. Taunton (100 Mass. 255),
295.
Macon v. Patty (57 Miss. 378), 108, 109.
Madison v. Harbor Board (73 Md. 395,
25 AtL Rep. 337), 79.
Magenan v. Fremont (30 Neb. 843, 9
L. R A. 786X 194.
Magie v. Stoddard (25 Conn, 565, 68
Am. Dec. 375), 230.
Maguire v. Spence (91 N. Y. 302), 301,
302,
Mahan, In re (20 Hun, 301), 78.
Mallory v. Ferguson (50 Kan. 685, 22
JL R A. 99), 250.
Mandlin v. Greenville (33 S. C. 1, 8
L. R A. 291), 138.
Mangam v. Brooklyn (98 N. Y. 585, 5
Am. Rep. 705), 235.
Manhattan Co. v. Ironwood (43 TJ. S.
App. 369, 74 Fed. Rep. 535), 163.
Manhattan L. Ins. Co. v. Broughton
(109 U. S. 121), 150.
Manhattan Trust Co. v. Dayton Nat-
ural Gas Co. (55 Fed Rep. 181),
137.
Mankato v. Arnold (36 Minn. 62, 30
N. W. Rep. 505), 196.
Mankato v. Fowler (32 Minn. 354), 75.
Mankato v. Fowler (32 Minn. 364), 86,
90, 20a
Manners v. Haverhill (135 Mas& 165),
273.
Mansfield v. Moore (124 UL 133), 299.
Marble Co. v. Harvey (91 Tenn. 125),
263.
March v. Corn. (12 B. Mon., Ky., 25),
200.
Marcy v. Oswego Tp. (92 U. S. 637),
167.
Marion Co. Com. v. Barker (25 Kan.
258), 221.
Mark v. State (97 N. Y. 572), 200.
Markham v. Brown (37 Ga. 277, 92
Am. Dec. 76), 86.
Markle v. Akron (14 Ohio, 586), 199.
Marmet v. State (45 Ohio St 63), 57,
210.
Marsh v. Fulton Co. (10 Wall, U. S.,
676), 160, 262.
Marshall v. Silliman (61 I1L 225), 39.
lii
TABLE OF CASES CITED.
References are to pages.
Marshall v. Snediker (25 Tex. 460),
266.
Marshalltown v. Bloom (43 Am. Rep.
116, 58 Iowa.. 184), 91.
Marshall Co. v. Johnson (127 Ind.
238, 26 N. E. Rep. 821), 235.
Martin v. Dicks (52 Miss. 53), 41.
Martin v. State (23 Neb. 371, 36 N. W.
Rep. 554), 185.
Martin v. Tyler (4 N. Dak. 278, 25
L. R. A. 838), 125, 128, 129.
Martindale v. Palmer (52 Ind. 411),
185, 186, 221.
Mason v. Shawneetown (77 111. 533),
155.
Mather v. Ottawa (114 111. 659, 11 Am.
& Eng. Corp. Cas. 248), 155.
Matthews v. Alexandria (68 Mo. 115,
30 Am. Rep. 776), 71.
Matthews v. Kelsey (58 Me. 56), 98.
Matthis v. Cameron (62 Mo. 504), 147.
Mauran v. Smith (8 R. I. 192, 5 Am.
Rep. 554), 317.
Maus v. Springfield (101 Mo. 613, 20
Am. St. Rep. 634), 292.
Maximilian v. Mayor (62 N. Y. 160),
285.
Maxwell v. Board (119 Ind. 20), 132.
May v. Cincinnati (1 Ohio St. 268),
199.
May v. Rice (91 Ind. 546), 179, 182.
Maynard v. Board of District Can-
vassers (84 Mich. 298, 11 L. R. A.
332), 319.
Mayor v. Beasly (1 Humph., Tenn.,
232), 201.
Mayor v. City Bank (58 Ga. 587), 163.
Mayor v. Dry Dock, etc. Ry. Co. (133
N. Y. 104, 28 Am. St. Rep. 609),
203.
Mayor v. Kelley (98 N. Y. 467), 235.
Mayor v. Keyser (72 Md. 106, 19 Atl.
Rep. 703), 79.
Mayor v. Marriott (9 Md 174, 66 Am.
Dec. 326), 277.
Mayor v. Morgan (7 Mart., N. S., 1,
* 18 Am. Dec. 232), 240.
Mayor v. Porter (18 Md. 284, 79 Am.
Dec. 686), 69, 177.
Mayor v. Ray (19 Wall., U. S., 468),
.81, 144, 149.
Mayor v. Sikes (94 Ga. 80, 47 Am.
St. Rep. 132), 307.
Mayor v. State (15 Md. 376, 74 Am.
Dec. 572), 69.
Mayor v. Widfield (8 Humph., Tenn.,
707), 201.
Mayor of Baltimore v. State (15 Md.
376, 74 Am. Dec. 572), 26, 27.
Mayor of Nashville v. Ray (19 Wall
478), 145.
Mayor of New York, In re (11 John.
77), 115, 121.
Mayor, etc. of New York v. Bank (111
N. Y. 446), 37.
Mazet v. Pittsburgh (137 Pa. St. 548),
74, 77, 78, 79.
Meeker v. Van Rensaeller (15 Wend.
397), 94.
Melick v. Washington (47 N. J. L.
254), 182.
Memphis v. Memphis Water Co. (5
Heisk., Tenn., 529), 17.
Memphis v. United States (97 U. S.
293), 35.
Memphis v. Woodard (12 Heisk.,
Tenn., 499, 27 Am. Rep. 750),
237.
Mendel v. Healey (28 W. Va. 233, 57
Am. Rep. 664), 275.
Mendel v. Wheeling (28 W. Va. 233),
281, 289.
Mendenhall v. Burton (42 Kan. 570),
42.
Mercer v. Corbin (117 Ind. 450), 98.
Mercer County v. Fleming (111 Cal.
46), 202.
Merchants' Bank v. Bergen Co. (115
U. S. 348), 160.
Merrick v. Wallace (19 111. 486), 250.
Merrill v. Austin (53 Cal. 379), «65.
Merrill v. Campbell (49 Wia 535), 326.
Merrill v. Chicago (45 111. 133), 326.
Merrill v. Monticello (138 U. a 673),
149.
Merrill, etc. Ry. Co. v. Merrill (80
Wis. 358), 79.
Merriwether v. Garrett (102 U. S.
472), 26, 35, 134, 317, 325.
Metcalf v. State (76 Ga. 208), 209.
Methodist E. Church v. Baltimore (6
Gill, 391), 183.
TABLE OF CASES CITED.
liii
References are to pages.
Metzger v. Beaver Falls (178 Pa. St.
1), 141.
Meyer v. Fromm (108 Ind. 208), 188.
Meyer v. Graham (33 Neb. 566, 18 L.
R A. 146), 99.
Meyer v. Muscatine (1 Wall, U. S.,
384), 161.
Michel v. New Orleans (32 La. Ann.
1094), 237.
Michener v. Philadelphia (118 Pa. St.
535), 110, 113.
Michigan City v. Boeckling (122 Ind.
39), 294, 296.
Mifflin Bridge Co. v. Juniata Co. (144
Pa. St. 235, 13 L. R A. 431), 127.
Milan v. Tennessee C. Ry. Co. (11 Lea,
Tenn., 330), 150.
Miles v. Worcester (154 Mass. 511),
310.
Milhan v. Sharp (27 N. Y. 611, 15
Barb. 193. 84 Am. Dec. 314), 100.
Millen v. Lansing (11 Fed. Rep. 829),
159.
Miller v. Bradford (12 Iowa, 19), 250.
Miller v. Kister (68 CaL 142), 5a
Miller v. School District (Wyo., 39
Pac. Rep. 879), 171.
Miller v. Ware (31 Iowa, 524), 250.
Mills v. Brooklyn (32 N. Y. 489), 309.
Mills v. Gleason (11 Wis. 470, 78 Am.
Dec, 721), 150, 151.
Mills Co. Nat. Bank v. Mills Co. (67
Iowa, 697), 146.
Milne v. Davidson (5 Mart, N. S.,
La., 586), 195.
Milward v. Thatcher (2 T. R 81, 7
Eng. Rul. Gas. 320), 228, 230.
Milwaukee v. Koeffler (116 U. S, 219),
32a
Milwaukee v. Milwaukee (12 "Wis. 93),
134.
Mimms v. Mimms (35 Ala. 23), 250.
Miners' Bank v. United States (1
Greene, Iowa, 553), 3.
Miners' Ditch Co. v. Zelkrbach (37
Cal. 543, 99 Am. Dec. 300), 3, 4,
260.
Minneapolis v. N. W. Ry. Co. (32
Minn. 452), 129.
Minneapolis Gas L. Co. v. Minneapo-
lis (25 Minn. 159), 136.
E
Minneapolis W. R Co. v. M. & St L.
R Co. (61 Minn. 502), 122.
Minnesota Linseed Oil Co. v. Palmer
(20 Minn. 424), 322.
Minturn v. Larue (23 How. 435), 69,
74.
Minot v. West Roxbury (112 Mass.
1), 107.
Mirande, Ex parte (73 Cal. 365), 85.
Mississippi, etc. R Co. v. Camden (23
Ark. 300), 150.
Missouri Pac. Ry. Co. v. Humes (115
U. S. 512), 125.
Missouri Pac. Ry. Co. v. City of Wy-
andotte (38 Kan. 573, 23 Pac. Rep.
950), 181.
Missouri Pac. Ry. Co. v. Keys (55
Kan. 205, 49 Am. St Rep. 249),
307.
Missouri Pac. Ry. Co. v. Tygard (84
Mo. 263, 54 Am. Rep. 97), 158.
Mitchell v. Franklin Co. (25 Ohio St.
143), 5.
Mitchell v. Illinois, etc. Ry. Co. (53
111. 286), 125.
Mitchell v. Negaunee (71 N. W. Rep.
646), 138.
Mitchell v. Rockland (52 Me. 118),
274,
Mittelstadt v. Morrison (76 Wis. 265),
205.
Moale v. Baltimore (61 Md. 224), 118.
Mobile v. Watson (116 U. a 289), 35,
45.
Mobile v. Yuille (3 Ala. 137X 182.
Modock, The (26 Fed. Rep. 718), 304,
Moffett v. Asheville (103 N. C. 237,
14 Am. St. Rep. 810), 271, 276.
Monad nock Ry. Co. v. Petersboro (49
N. H. 281), 71.
Monk v. New Utrecht (104 N. Y. 552),
293, 298.
Monongahela Bridge Co. v. Pittsburg
(114 Pa. St 478), 304
Monongahela City v. Fisher (111 Pa.
St 9), 294
Monroe v. Lawrence (44 Kan. 607), 84
Montague v. Horton (12 Wis. 668),,
147.
Montclair v. Ramsdell (107 U. S. 147),
166.
liv
TABLE OF CASES CITED.
References are to pages.
Montezuma v. Minor (73 Ga. 484), 131.
Montgomery v. Gilmer (33 Ala. 116,
70 Am. Dec. 562), 309, 312.
Montgomery v. Parks (Ala., 21 So.
Rep. 452), 211.
Montgomery v. "Wright (72 Ala. 411),
292.
Montgomery City Council v. Mont-
gomery, etc. By. Co. (31 Ala. 76),
259.
Montgomery Co. v. Menifee (93 Ky.
33), 44.
Montgomery Co. v. Schuylkill Bridge
Co. (110 Pa. St. 54), 127.
Monticello v. Fox (Ind. App., 28 N. E.
Rep. 1025), 312.
Montpelier v. E. Montpelier (27 Vt.
704, 29 Vt. 12), 26, 28, 134.
Moody v. Moeller (72 Tex. 635), 221.
Moody v. Niagara County (46 Barb.,
N. Y., 659), 279.
Moon v. Ionia (81 Mich. 535, 46 N. W.
Rep. 25), 301.
Moore v. Abbot (32 Me. 4G), 291.
Moore v. Kenockee Tp. (75 Mich. 332),
304.
Moore v. Mayor (73 N. Y. 238, 29 Am.
Rep. 134), 164.
Moore v. Minneapolis (19 Minn. 300,
Gil. 259), 304, 305.
Moore v. Monroe (64 Iowa, 364, 52
Am. Rep. 444), 83.
Moore v. New York (73 N. Y. 38), 260,
274.
Moran v. Miami Co. (67 U. S. 722), 165.
Moran v. New Orleans (112 U. S. 69),
198.
Moran v. Palace Car Co. (138 Mo. 641,
56 Am. St. Rep. 543), 277.
Morford v. Unger (8 Iowa, 82), 41.
Morgan v. Chicago, etc. Ry. Co. (36
Mich. 428), 125.
Morgan v. Dubuque (28 Iowa, 575),
116.
Morgan v. Morley (1 Wash. 464), 292.
Morris v. Rome (10 Ga. 532), 209.
Morris v. State (62 Tex. 728), 35.
Morris v. Taylor (49 Pac. Rep. 23), 149.
Morrison v. Ba chert (112 Pa. St. 322),
61.
Morrison v. Hershire (32 Iowa, 271)
117.
Morrison v. Hinckson (87 111. 588, 29
Am. Rep. 77), 325.
Morrison v. Lawrence (98 Mass. 219),
273.
Morrison v. St. Paul (5 Minn. 108),
115.
Morrison v. Semple (6 Binn., Pa., 94),
123.
Morse v. Richmond (41 Vt. 435, 98
Am. Dec. 600), 297.
Morton v. Nevada (41 Fed. Rep. 582),
151.
Mosher v. School District (44 Iowa,
122), 37.
Moss v. Augusta (93 Ga. 787), 280.
Moss v. Comings (44 Mich. 359), 248.
Moss v. Oakland (88 111. 109), 1'JO.
Mostyn v. Fabrigas (Cowp. 161,
Smith's L. C. 1027), 248.
Moulton v. Evansville (25 Fed. Rep.
383), 161.
Moulton v. Moulton (5 Barb. 286),
251.
Moulton v. Scarborough (71 Me. 267,
36 Am. Rep. 308), 286.
Moultrie Co. v. Rockingham Sav.
Bank (9'3 U. S. 631), 165.
Mount Hope Cemetery v. Boston (158
Mass. 509), 134.
Mount Pleasant v. Beckwith (100
U. S. 514), 35, 41, 44.
Mount Pleasant v. Vancise (43 Mich.
C61), 198.
Mouse's Case (12 Coke, 13, 63), 281.
Moutz v. Detroit (18 Mich. 495), 115.
Mower v. Leicester (9 Mass. 237), 291.
Mowry v. Providence (16 R L 42^ 16
Atl. Rep. 511), 134.
Mugler v. Kansas (123 U. S. 623), 87.
Mullen v. Rutland (55 Vt 77), 304
Municipality v. Cutting (4 La. Ann.
335), 178.
Municipality v. Dunn (10 La. Ann.
57), 109.
Municipality v. Pease (2 La. Ann.
538), 135.
Munn v. Illinois (94 U. S. 113), 4, 84.
Murphy v. Kelley (68 Me. 521), 307.
TABLE CF CASES CITED.
IV
References are to pages.
Murray v. Allen (R. L, 38 AtL Rep.
497), 308.
Muscatine v. Hershey (18 Iowa, 39),
135.
Musser v. Hyde (2 W. & & 314), 251.
Mutual Ben. Life Ins. Co. v. Eliza-
beth (42 N. J. L. 235), 161.
Myers v. Spooner (55 CaL 262), 250.
N.
Nance v. Falls City (16 Neb. 85), 257.
Nansen v. Grizzard (96 N. C. 293),
224.
Napa v. Esterly (61 Cal. 509, 16 Pac.
Rep. 256), 188.
Nappeau v. People (19 Mich. 352), 211.
Nash v. Lowry (37 Minn. 261), 8L
Nash v. Muldoon (16 Nev.404), 251.
Nash v. St Paul (11 Minn. 174, Gil.
110), 79, 148.
Nashville v. Sutherland (92Tenn. 335,
19 L. R. A. 619), 258, 275.
Nashville v. Taney (10 Lea, Tenn.,
643), 264.
National Bank of Commerce v. Gre-
nada (44 Fed. Rep. 282), 176, 188.
National Life Ins. Co. v. Board of
Education (62 Fed. Rep. 783), 164,
Neeld's Road (1 Pa. St. 353), 125.
Neeman v. Smith (50 Mo. 525), 117.
Neff v. Wellesley (148 Mass. 487, 2 L.
R. A. 500), 285, 286.
Neier v. Missouri Pac. Ry. Co. (12 Ma
App. 25), 202.
Nelson v. Hay wood Co. (87 Tenn. 781,
4 L. R. A. 648), 153, 156.
Nelson v. La Porte (33 Ind. 258), 100.
Nelson v. St. Martin's Parish (111
U. S. 716), 35.
Nesbit v. Atlanta (97 Ga. 650), 284.
Netzer v. Crookston (59 Minn. 244),
298, 310, 313.
Nevada v. Hampton (13 Nev. 441), 40.
Nevada Bank v. Steinmetz (61 Cal.
301), 159.
Newark v. Funk (15 Ohio St. 463),
326.
Newark, etc. v. Passaic (45 N. J. Eq.
393), 89.
Newark Pass. R. Co. v. Block (55 N.
J. L. 605), 105.
Newberry v. Fox (37 Minn. 141, 15
Am. St Rep. 830), 76, 258.
New Boston v. Dunbarton (12 N. H.
409), 17.
New Brunswick v. Fitzgerald (48 N.
J. L. 457, 8 AtL Rep. 729), 57.
Xewcomb v. Boston Protection
Dept (151 Mass. 215, 24 N. E. Rep.
39), 283.
Newell v. Minneapolis, etc. R. Co. (35
Minn. 112, 59 Am. Rep. 303), 102,
106.
New Hampshire, etc. Ry. Co. v.
Chatham (42 Conn. 465), 161.
New London v. Brainerd (22 Conn.
552), 323.
Newman v. Emporia (41 Kan. 583),
114.
Newman v. Metropolitan, etc. Ry.
Co. (118 N. Y. 618), 128.
Newmeyer v. Missouri, etc/Ry. Co.
(52 Ma 81, 14 Am. Rep. 394),
323.
New Orleans v. Abagznatto (62 Fed.
Rep. 240, 26 L. R. A. 329), 278.
New Orleans v. Clark (95 U. S. 644),
37, 39, 40, 100.
New Orleans v. Finerty (27 La, Ann.
681, 21 Am. Rep. 569), 236.
New Orleans v. Home Ins. Co. (23
La. Ann. 61), 325.
New Orleans v. Morris (105 U. S. 600),
325.
New Orleans v. New Orleans, etc. R.
Co. (40 La. Ann. 587, 4 So. Rep.
512), 102.
New Orleans v. New Orleans, etc.
Co. (35 La. Ann. 548), 1D&
New Orleans v. Stafford (27 La. Ann.
393, 21 Am. Rep. 561), 92.
New Orleans v. Water-wcrks (142
U. S. 79), 108.
New Orleans Gas Co. v. Hart (40 La.
Ann. 474, 8 Am. St. Rep. 544), 85.
New Orleans Gas Ca v. Louisiana L.
Co. (115 U. S. 650), 81, 100.
New Orleans G. etc. Co. v. New Or-
leans (42 La. 188), 79.
Ivi
TABLE OF CASES CITED.
References are to pages.
New Orleans M. & T. Co. v. Eller-
man (105 U. S. 166), 136.
New Orleans, etc. Ry. Co. v. Dunn
(51 Ala. 128), 150.
New Orleans Water Works v. New
Orleans (16-4 U. S. 481), 74, 195,
197.
New Orleans Water Works Co. v.
Rivers (115 U. S. 674), 100.
Newport v. Newport Gas Co. (84 Ky.
466), 186.
New Providence v. Halsey (117 U. S.
336), 167.
Newsome v. Cook (44 Miss. 352, 7 Am.
Rep. 686), 243.
Newson v. Galveston (76 Tex. 559, 7
L. R A. 797), 92.
New York v. Bailey (2 Denio, 433),
270.
New York Bank v. Grace (102 N. Y.
313), 172.
New York & N. E. R. Co. v. Bristol
(151 U. S. 556), 99.
New York R Co. v. City of Water-
bury (55 Conn. 19), 186.
New York, etc. R. Co. v. Long (69
Conn. 424), 121, 125.
New York, etc. R. Co., In re, v. Metro-
politan Gas Co. (63 N. Y. 326), 3.
Nichols v. Bridgeport (23 Conn. 189),
119.
Nichols v. City of St. Paul (44 Minn.
494), 297, 303.
Nichols v. Duluth (40 Minn. 389), 314
Nichols v. McLean (101 N. Y. 526, 64
Am. Rep. 730), 236, 237.
Nichols v. Walters (37 Minn. 264), 60.
Nickerson v. Tirrell (127 Mass. 236),
287.
Nickodemus v. East Saginaw (25
Mich. 456), 266.
Nicoulin v. Lowery (49 N. J. L. S91),
86.
Nightingale, Petitioner (11 Pick 168),
208, 213.
Niles v. Muzzy (33 Mich. 61, 20 Am.
Rep. 670), 228, 239.
Niles Water-works v. Niles (59 Mich.
311), 74, 174.
Ninkle v. Detroit (49 Mich. 249, 43
Am. Rep. 464), 93.
Nivens v. Rochester (75 N. Y. 619),
270.
Nixson v. Campbell (106 Ind. 47), 159.
Noble v. St. Albans (56 Vt. 522), 309.
Nolan v. King (97 N. Y. 565), 295, 301.
Noonan v. Albany (79 N. Y. 470), 310,
Noonan v. Stillwater (33 Minn. 198),
118, 299, 300.
Norris v. Staps (1617, Hob. 210), 199.
Norris v. Waco (57 Tex. 635), 41.
Norristown v. Fitzpatrick (94 Pa. St.
121), 30.
Norristown v. Moyer (67 Pa. St. 355),
302.
North Birmingham v. Colderwood
(89 Ala. 247, 18 Am. St. Rep. 105),
196.
North Carolina R. Co. v. Baltimore
(21 Md. 93). 103.
Norfleet v. Cromwell (70 N. C. 634),
121.
Northampton Bridge Case (116 Mass.
443), 120.
Northern Liberties v. St. John's
Church (13 Pa. St. 104), 115.
Northern Trans. Co. v. Chicago (99
U. S. 635), 96, 99, 313, 314
Northern Trust Co. v. Porter Tp. (110
U. S. 608), 166.
North Hempstead v. Hempstead (2
Wend. 109, 110), 19, 44
North Hudson Co. R Co. v. Hoboken
(41 N. J. L. 81), 208.
North Milwaukee, In re (93 Wis. 616,
67 N. W. Rep. 1033, 33 L. R A.
638), 17.
North Vernon v. Voegler (103 Ind.
314), 309.
North way v. Sheridan (Mich., 69 N. W.
Rep. 82), 230. »
Northwestern Union Packet Co. v.
Shaw (37 Wis. 655, 19 Am. Rep.
781), 260.
North Mo. Ry. Co. v. McGuire (49
Mo. 490), 40.
North Yarmouth v. Shilling (45 Me.
133, 71 Am. Dec. 530), 26.
Norton v. Bedford (166 Mass. 48), 271.
Norton v. Dyersburg (127 U. S. 160),
150r 153.
Norton v. Nye (56 Me. 211), 25L
TABLE OF CASES CITED.
Ivii
References are to pages.
Norton v. Peck (3 Wis. 714), 5.
Norwich v. Hampshire (13 Pick. 60),
38.
Norwich G. L. Co. v. Norwich, etc,
(25 Conn. 20), 80, 81, 100, 136.
Nuhlenbrinck v. Com. (44 N. J. L.
365), 208.
0.
O'Brien v. New York (15 N. Y. Supp.
520), 270.
O'Brien v. St. Paul (25 Minn. 331), 309,
314.
O'Connor v. Pittsburg (18 Pa. St. 187),
96.
O'Gorman v. Morris (26 Minn. 267),
296.
O'Hara v. State (112 N. Y. 146), 37.
O'Hare v. Parker River (N. D., 47 N.
W. Rep. 380), 188.
O'Leary v. Board of Commissioners
(79 Mich. 281, 19 Am. St. Rep.
169, 7 L. R. A. 170), 270, 283.
O'Leary, Ex parte (30 Tex. App. 493,
17 S. W. Rep. 1057), 88.
O'Linda v. Lathrop (21 Pick. 292),
101.
O'Reilley v. Kingston (114 N. Y. 439),
114.
Oats v. Walls (28 Ark. 244), 250.
Oberg, In re (21 Oreg. 406, 14 L. R. A.
577), 52.
Odell v. Atlanta (97 Ga. 670, 25 S. E.
Rep. 173), 85.
Odell v. Schroeder (58 111. 3q3), 279.
Ogden v. McLaughlin (5 Utah, 387),
74,84
Ogden v. Raymond (22 Conn. 379, 59
Am. Dec. 429), 223.
Ogg v. Lansing (35 Iowa, 495, 14 Am.
Rep. 499), 284.
Oil City v. Oil City Boiler Works
(152 Pa. St. 348), 110.
Old Colony Ry. Co. v. Farmington
Water Co. (153 Mass. 561, 13 L. R.
A. 333), 122.
Oliver v. Worcester (102 Mass. 489),
286.
Oliver Cemetery Co. v. Philadelphia
(93 Pa. St 129), 115.
Olney v. Harvey (50 EL 453), 44
Olson v. Chippewa Falls (71
558), 295.
Omaha v. Olmstead (5 Neb. 446), 131.
Omaha v. Richards (49 Neb. 244), 286,
297, 309.
Opelousas v. Andrus (37 La. Ann.
699), 186.
Opening First St,In re (66 Mich. 42),
99.
Opinion of the Justices (81 Me. 602,
18 Atl. Rep. 291), 171.
Opinion of the Justices (150 Mass.
392, 8 L. R. A. 487). 138.
Opinion of Justices (167 Mass. 599, 46
N. E. Rep. 118), 231.
Oregon v. Jennings (119 U. S. 74), 167.
Oregon St Nav. Co. v. Winsor (20
Wall., U. S., 64), 261.
Orlando v. Pragg (31 Fla, 111, 34 Am.
St Rep. 17), 284.
Orth v. Milwaukee (59 Wis. 336), 30a
Osborne v. Adams Co. (106 U. S. 181,
109 U. S. 1), 154.
Oshkosh v. State (59 Wis. 425), 324
Otoe Co. v. Baldwin (111 U. S. 1), 151.
Ottawa v. Carey (108 U. S. 110), 150,
160.
Ottawa v. Chinn (75 Iowa, 405), 89.
Quid v. Richmond (23 Gratt 464, 14
Am. Rep. 139), 107.
Overing v. Foote (65 N. Y. 262), 110.
Overton Bridge Co. v. Means (33 Neb.
857, 51 N. W. Rep. 240, 29 Am.
St. Rep. 514), 240, 325.
Owens v. City of Lancaster (182 Pa.
St. 257, 38 AtL Rep. 8-58), 312.
Owners v. Mayor (15 Wend. 374), 121.
Owners v. People (113 III 296), 47, 63.
P.
Pacific Ry. Co. v. Leavenworth (1
Dili C. C. 393), 10a
Packwood v. Kittitas Co. (15 Wash.
88, 33 L. R. A. 673), 157.
Paddock v..Symonds (11 Barb. 117),
146.
Palestine v. Barnes (50 Tex. 538), 4
Palmer v. Concord (48 N. H. 211, 97
Am. Dec. 605), 279.
Iviii
TABLE OF CASES CITED.
References are to pages.
Palmer v. Danville (158 111. 156), 202.
Palmer v. Danville (166 III 42, 46
N. E. Rep. 629), 114.
Palmer v. Helena (Mont, 47 Pac. Rep.
209), 171.
Palmer v. Stumph (29 Ind. 329), 114.
Palmyra v. Morton (25 Mo. 594), 114.
Pana v. Bowler (107 U. S. 539), 156,
165.
Parch v. Bayonne (39 N. J. L. 559),
82.
Park Com'rs v. Mayor (29 Mich. 347),
31.
Park Com'rs v. Common Council of
Detroit (28 Mich. 228, 15 Am. Rep.
203), 25.
Parker v. Challis (9 Kan. 155), 114
Parker v. Dakota Co. (4 Minn. 59, Gil.
39), 236.
Parker v. Mill Dam Co. (20 Me. 353,
37 Am. Dec. 56), 127.
Parkersburg v. Brown (106 U. S. 487),
152, 154.
Parkersburg Gas Co. v. Parkersburg
(30 W. Va. 435), 138.
Parks v. Rooss (11 How., U. S., 362),
247.
Parrott v. Bridgeport (44 Conn. 180,
3 L. R. A. 265), 317.
Parrott v. Shaubhut (5 Minn. 331),
251.
Parsons v. Jackson (99 U. S. 434), 163.
Passaic, In re (54 N. J. L. 156, 23 Atl.
Rep. 517), 59.
Patch v. Covington (17 B. Mon. 722,
66 Am. Dec. 186), 281.
Paterson Horse Ry. Co. v. Grundy
(51 N. J. Eq. 213, 228), 105.
Patten Paper Co. v. Kaukauna Water
Co. (90 Wis. 370, 28 L. R. A. 443),
120.
Patterson v. Society (24 N. J. L. 385),
115.
Paul v. Brewster Co. (40 N. J. L. 585),
54
Paul v. Detroit (32 Mich. 108), 125.
Paul v. Gloucester (50 N. J. L. 585),
50.
Paul v. Kenosha (22 Wis. 266), 263.
Paulson v. Pelican (79 Wis. 445, 48
N. W. Rep. 715), 302.
Paulson v. Portland (149 U. S. 30),
110.
Pawlet v. Clark (9 Cranch, 292), 134.
Paxson v. Sweet (13 N. J. L. 196), 303.
Paxton & Hershy Co. v. Farmers', etc.
Co. (45 Neb. 884, 29 L. R. A. 853),
121.
Paxton v. Sweet (30 N. J. L. 196), 203.
Payne v. Pavey (29 La. Ann. 116),
250.
Peabody v. West. Water Works Co.
(37 Atl. Rep. 807), 138.
Pearsall v. Eaton Co. Sup'rs (74 Mich.
558, 4 L. R. A. 193), 104
Pearson v. Zable (78 Ky. 170), 313.
Pease v. Cornish (19 Me. 191), 147.
Peay v. Little Rock (32 Ark. 31), 114
Peck v. Rochester (3 N. Y. Supp. 873),
187.
Pedrick v. Bailey (12 Gray, 161), 213.
Pekin v. McMaben (154 III 141, 27
L. R. A. 206), 286.
Pekin v. Reynolds (31 111. 529, 28 Am.
Dec. 244"), 146.
Pell v. Newark (40 N. J. L. 71), 61.
Pendleton Co. v. Amy (13 Wall, U. S.,
297), 161.
Pennie v. Reis (132 U. S. 464), 33.
Pennsylvania Co. v. Chicago (81 Fed.
' Rep. 317), 279.
Pennsylvania Co. v. Hortoii (132 Ind.
187), 205.
Pennsylvania Hall, In re (5 Pa. St.
204), 40.
Pennsylvania Ry. Co. v. Philadelphia
(47 Pa. St. 189), 150.
People v. Albertson (55 N. Y. 50), 26,
30, 31.
People v. Armstrong (73 Mich. 288,
16 Am. St. Rep. 578), 97, 198. *•
People v. Barnett Tp. (100 IlL 332),
242.
People v. Bartlett (6 Wend., N. Y.,
422), 241.
People v. Batchellor (35 N. Y. 128, 13
Am. Rpp. 480), 39, 319.
People v. Bennett (83 Mich. 457), 23,
74, 84.
People v. Bennett (29 Mich. 451), 5, 18.
People v. Bloomington Tp. Com'rs
(130 IlL 482, 6 L. R. A. 161), 320.
TABLE OF CASES CITED.
lix
References are to pages.
People v. Board of Co. Com'rs (129
N. Y. 395, 14 L. R. A. 624), 319.
People v. Board, etc. (49 Cal. 684), 83.
People v. Board of Supervisors (27
Cal. 655), 190.
People v. Board (50 CaL 561), 38.
People v. Bogart (3 Park. Crim. Rep.
143), 238.
People v. Bond (10 CaL 563), 35, 36.
People v. Brisbane (76 N. Y. 558, 32
Am. Rep. 337), 282.
People v. Brooklyn (106 N. Y. 64),
244
People v. Brooklyn Council (22 Barb.,
X. Y., 404), 3*19.
People v. Broom (138 N. Y. 95, 20 L.
R. A. 81), 320.
People v. C. P. R. Co. (43 Cal. 432),
51.
People v. Campbell (72 N. Y. 496),
78.
People v. Carpenter (24 N. Y. 86),
321.
People v. Carrique (2 Hill, N. Y., 93),
228.
People v. Chicago (51 I1L 17, 2 Am.
Rep. 278), 39, 15a
People v. Chenango County (11 N. Y.
563), 316.
People v. City of Butte (4 Mont. 174),
19.
People v. Cleveland (5 Hill, N. Y.,
616), 31G.
People v. Cline (63 III 394), 157, 161.
People v. Commissioners of High-
ways (130 III 482, 6 L. R. A. 161),
316.
People v. Common Council (77 N. Y.
503, 33 Am. Rep. 659), 230.
People v. Cooper (S3 I1L 585), 54, 64.
People v. Cratty (93 I1L 181), 179, 180,
316.
People v. Creiger (138 III 401, 28 N.
E. Rep. 812), 20a
People v. Dayton (55 N. Y. 367), 40.
People v. Detroit (18 Mich. 338), 319.
People v. Detroit (28 Mich. 228), 24,
31, 39, 135, 153.
People v. Draper (15 N. Y. 532), 30, 31.
People v. Dwyer (90 N. Y. 402), 78.
Peopl- v. Eaton (100 Mich. 208), 106.
People v. Fairbury (51 I1L 149), 319.
People v. Field (58 N. Y. 491), 323.
People v. Flagg (46 N. Y. 401), 38, 152,
319.
People v. Freeman (80 Cal. 233, 13
Am. St. Rep. 122), 224.
People v. French (52 Hun, N. Y., 464),
235.
People v. French (102 N. Y. 583),
2-15.
People v. Green (58 N. Y. 295), 229,
231.
People v. Gordon (Mich., 45 N. W.
Rep. 658), 212.
People v. Governor (29 Mich. 320, 18
Am. Rep. 89), 317.
People v. Hager (52 CaL 171), 110.
People v. Haines (49 N. Y. 587), 111.
People v. Hanrahan (75 Mich. 611, 4
L. R. A. 751), 181, 200.
People v. Harper (91 HI 357), 39.
People v. Hayden (113 N. Y. 198),
244
People v. Hechst (105 CaL 621, 27 L.
R A. 203), 233, 234
People v. Henshaw (76 Cal. 436, 18
Pac, Rep. 413), 59.
People v. Higgins (15 I1L 110), 246.
People v. Hoffman (116 HI 587, 56
Am. Rep. 793), 54, 214
People v. Holden (82 111. 93), 159.
People v. Hurlbut (23 Mich. 44), 5,24,
29, 32, 34.
People v. Ingersoll (58 N. Y. 491), 33,
134
People v. Johnson (100 I1L 537), 145.
People v. Kane (84 Mich. 223), 243.
People v. Kelly (5 Abb, New Cas. 383),
39.
People v. Kerr (27 N. Y, 188), 27, 105.
People v. Killduff (15 111. 492), 256.
People v. Lake Co. (33 Cal. 487), 48.
People v. Lawrence (82 Cal. 182), 130.
People v. Lee (112 111. 112), 182.
People v. Leonard (73 CaL 230, 14
Pac. Rep. 853), 227.
People v: Little (86 Mich. 125), 205.
People v. Londoner (13 Cola 303, 6
L. R. A. 444), 65, 321.
Ix
TABLE OF OASES CITED.
References are to pages.
People v. McFadden (81 CaL 489), 5,
46 63.
People v. McKinney (52 N. Y. 374),
226.
People v. Mahaney (13 Mich. 481), 30,
31.
People v. May (9 Colo. 80, 13 Am. &
Eng. Corp. Cas. 307), 169, 170.
People v. Mayor (82 N. Y. 491), 244.
People v. Mayor (15 Md. 376), 30.
People v. Mayor (4 N. Y. 419), 40, 108.
People v. Mead (24 N. Y. 114), 316.
People v. Miller (24 Mich. 458, 9 Am.
Rep. 131), 237.
People v. Mil-ton (19 Colo. 565, 24 L.
R. A. 201), 245.
People v. Morris (13 Wend. 325, 327),
2, 5, 34.
People v. Morrow (21 Wend., N. Y.,
563), 234.
People v. Mulholland (82 N. Y. 324),
207.
People v. Murray (57 Mich. 396), 182.
People v. Nally (49 Cal. 478), 26.
People v. New York (2 Hill, N. Y., 9),
324.
People v. New York Infants' Asylum
(122 N. Y. 190, 10 L. R. A. 381),
319.
People v. Nortrand (46 N. Y. 378), 232.
People v. Oldtown (88 111. 202), 157.
People v. Preveens (34 Cal. 518), 239.
People v. Porter (6 Cal. 26), 242.
People v. Rice (129 N. Y. 449, 14 L.
R. A. 643), 319.
People v. Richardson (4 Cow., N. Y.,
91, 109), 321.
People v. Riverside (70 Cal. 461), 41.
People v. Robb (126 N. Y. 180), 243.
People v. Rochester (44 Hun, N. Y.,
166), 206.
People v. Rogers (Cal., 46 Pac. Rep.
740, 50 Pac. Rep. 658), 227, 241.
People v. Rossau (15 La. Ann. 238),
237.
People v. Salem (20 Mich. 452, 4 Am.
Rep. 400). 153.
People v. Schroeder (76 N. Y. 160),
186.
People v. Shepard (36 N. Y. 285), 31.
People v. Smythe (23 CaL 21), 237.
People v. South Mich. Ry. Co. (3
Mich. 496), 129.
People v. Spencer (55 N. Y. 1), 157.
People v. Spring Valley (129 III 169),
321.
People v. State Board of Canvassers
(129 N. Y. 360, 14 L. R. A. 646),
231, 316.
People v. State Treasurer (23 Mich.
499), 153.
People v. Steward (74 Mich. 411, 16
Am. St. Rep. 644), 245.
People v. Sturtevant (9 N. Y. 263, 59
Am. Dec. 536), 240.
People v. Supervisors (70 N. Y. 228),
39.
People v. Thatcher (55 N. Y. 525), 321.
People v. Therrein (80 Mich. 187), 245.
People v. Thompson (98 N. Y. 6), 122.
People v. Vilas (36 N. Y. 459), 235.
People v. Wagner (86 Mich. 594, 24
Am. St. Rep. 141), 91, 181.
People v. Waite (70 111. 25), 322.
People v. Walsh (96 111. 232, 36 Am.
Rep. 135), 28, 96.
People v. Warfield (20 111. 160), 157.
People v. Wiant (48 111. 263), 157.
People v. Williams (145 111. 573, 24
L. R, A. 492), 320.
People v. Whitlock (92 N. Y. 191), 244.
People v. Wood (71 N. Y. 371), 147.
People v. Wright (70 111. 358), 61.
People v. Wright (78 111. 338), 47.
People v. Yonkers Board of Health
(140 N. Y. 1, 23 L. R. A. 481),
324.
Peoria v. Simpson (110 III 294, 51
Am. Rep. 683), 300, 301.
Peoria Gas L. Co. v. Peoria R. Qo.
(146 111. 372, 21 L. R. A. 373), 127.
Perry v. John (79 Pa. St. 412), 292.
Perry v. Keene (56 N. II. 514), 153.
Perry v. Worcester (6 Gray, 544, 66
Am. Dec. 431), 304, 308, 309, 312.
Perry Co. v. Conway Co. (52 Ark. 430,
6 L. R A. 665), 44.
Perkins v. Fayette (68 Me. 152), 294
Perkins v. New Haven (53 Conn. 214),
30, 279.
TABLE OF CASES CITED.
Ixi
References are to pages.
Peters v. Fergus Falls (35 Minn. 549),
292.
Peters v. Lindsburg (40 Kan. 654),
280.
Petersburg v. Applegarth (28 Grat
343. 26 Am. Rep. 357), 277.
Peterson v. Mayor (17 N. Y. 449), 264.
Pettengill v. Yonkers (116 X. Y. 558),
270. 295.
Pettigrew v. Evansville (25 Wis. 223),
i2a
Phelan v. Granville (140 Mass. 386),
235.
Phelps v. Mayor of New York (112
N. Y. 216/2 L. R. A. 625), 265.
Philadelphia v. Field (58 Pa. St. 320),
38.
Philadelphia v. Fox (64 Pa. St. 180),
24, 26, 134.
Philadelphia v. Ridge Ave. Ry. Co.
(143 Pa. St. 444), 102.
Philadelphia v. Rule (93 Pa. St 15),
115.
Phillips, Matter of (60 N. Y. 16), 111.
Phillips v. Denver (19 Colo. 189, 41
Am. St. Rep. 230), 193, 198, 201.
Phillips v. Ritchie County (31 W.
Va. 477), 292.
Phoenix Iron Co. v. Com. (113 Pa. St.
563), 316.
Pierce v. Drew (136 Mass. 75), 106.
Pierce v. New Bedford (120 Mass. 534,
37 Am. Rep. 387), 278.
Pierce v. Smith (48 Kan. 331), 63.
Pierie v. Philadelphia (139 Pa, St. 573,
21 Atl. Rep. 90), 235.
Piesk v. Chicago, etc. R. Co. (94 U. S.
164, 178), 4.
Pince v. City of Fresno (88 CaL 407,
26 Pac. Rep. 606), 234
Pinck v. Milwaukee (46 Wis. 565, 32
Am. Rep. 735), 270.
Pine Grove Tp. v. Talcott (19 Wall.
666), 15a
Pinkham v. Topsfield (104 Mass. 78),
303.
Piollet v. Simmers (106 Pa. St 95, 51
Am. Rep. 496), 297.
Pitts v. Opelika (79 Ala. 527), 188.
Pittsburg v. Reynolds (48 Kan. 360,
29 Pac. Rep. 757), 189.
Pittsburg, etc. Co. v. Benwood Iron
Works (31 W. Va. 710, 2 L. R. A.
680), 121.
Pittsburg, etc. Ry. Co. v. Chicago
(159 III 369, 42 N. E. Rep. 781). 103.
Pittsburg, etc. R. Co. v. Crown Point
(Ind., 35 L. R. A. 684), 205.
Pittsburg, etc. R. Co. v. Keokuk, etc.
R. Co. (131 U. & 371), 263.
Pitzman v. Freeburg (92 111. Ill), 150.
Place v. Providence (12 R. L 1), 323.
Placke v. Union Depot Co. (41 S. W.
Rep. 915), 105.
Platter v. Elkhart Co. (103 Ind. 360),
184,
Platteville v. Galena (43 Wis. 493),
156.
Platteville v. McKennan (54 Wis.
487), 196.
Pleasant Hill v. Dasher (120 Mo. 675),
118.
Plimpton v. Somerset (33 Vt. 283), 40.
Pointdexter v. Greenhow (114 U. S.
305), 104.
Police Com'rs v. Louisville (3 Bush,
Ky., 597), 31.
Police Jury v. Britton (15 Wall 566),
145, 149.
Polk v. Tunica (52 Miss. 422), 147.
Pollock v. Louisville (13 Bush, 221),
279.
Poplin v. Mundell (27 Kan. 159), 250.
Ponca v. Crawford (18 Neb. 551, 28
Neb. 762, 8 Am. St. Rep. 144), 292.
Portage Co. v. Wis. etc. Ry. Co. (121
Mass. 460), 159.
Portland, etc. Ry. Co. v. Hartford (58
Me. 23), 158.
Portland, etc. Ry. Co. v. Portland (14
Oreg. 188, 12 Pac. Rep. 565), 27.
Portsmouth Savings Bank v. Spring-
. field (4 Fed. Rep. 276), 161.
Potter v. Douglas Co. (87 Mo. 240), 170.
Potts v. Breen (167 111. 67, 60 111. App.
201, 47 N. E. Rep. 81), 83.
Powell v. Board of Education (97 I1L
375), 37 Am. Rep. 123), 82.
Powell v. Boston (111 Mass. 454), 107,
108.
Powell v. City of Madison (107 Ind,
106, 8 N. k Rep. 31), 171.
TABLE OF CASES CITED.
References are to pages.
Powell v. Pennsylvania (127 U. S.
678), 87.
Powell v. St. Croix County (46 Wis.
210), 265.
Powell v. Wytheville (Va., 27 S. E.
Rep. 805), 313.
Powers' Appeal (29 Mich. 504), 120.
Powers v. Council Bluffs (50 Iowa,
197), 310.
Powers v. Grand Rapids (98 Mich.
293, 57 N. W. Rep. 230), 113.
Prather v. Lexington (13 B. Mon. 559,
56 Am. Dec. 585), 278.
Pratt v. Litchfleld (62 Conn. 112), 93.
Pray v. Jersey City (32 N. J. Law,
406), 291.
Pray v. North Liberties (31 Pa. St. 69),
109.
Prescott v. Waterloo (26 Fed. Rep.
592), 274.
Preston v. Boston (12 Pick. 14), 265.
Preston v. Manvers (21 U. C. Q. B.
626), 185.
Preston v. United States (37 Fed.
Rep. 417), 231.
Prewitt v. Missouri, etc. Ry. Co. (134
Mo. 615, 36 S. W. Rep. 667), 205.
Prince v. Crooker (166 Mass. 347, 32
L. R. A. 610), 96, 167.
Prince v. Quincy (105 III 138), 170.
Princess Co. Com. v. Bladensburg (51
Md. 468), 41.
Prior, In re (55 Kan. 724, 29 L. R. A.
398), 137.
Pritchett v. Stanislaus Co. (73 Cal.
310), 55.
Pritz, Ex parte (9 Iowa, 30), 64, 65.
Privet v. Bickford (26 Kan. 53, 40
Am. Rep. 301), 227.
Propagation Society v. Dudley (4
Pet., U. S., 480), 19.
Proprietors of, etc. v. Inhabitants
(153 Mass. 42, 26 N. E. Rep. 239),
133.
Protestant Episcopal Church v. Ana-
mosa (76 Iowa, 538, 2 L. R. A.
606), 292.
Provost City v. Sheriff (4 Utah, 15, 5
Pac. Rep. 302), 209.
Puffer v. Orange (122 Mass. 389, 23
Am. Rep. 268), 296.
Pumpelly v. Green Bay, etc. Co. (13
Wall. 166), 123, 127.
Pumphrey v. Baltimore (47 Md. 145),
38.
Purdy v. Lansing (128 U. S. 557),
159.
Purple v. Greenfield (138 Mass. 1), 98.
Putnam v. Douglas Co. (6 Oreg. 328,
25 Am. Rep. 627), 128.
Putnam v. Grand Rapids (58 Mich.
417), 138.
Pye v. Peterson (45 Tex. 312), 93.
Pyre v. Mankato (36 Minn, 373, 1 Am.
St. Rep. 671), 308.
Q.
Quaker City Nat. Bank v. Nolan Co.
(59 Fed. Rep. 660), 168.
Queen v. Justices (4 Q. B. 522, 29
Moak's Eng. Rep. 61), 189.
Quill v. Indianapolis (124 Ind. 292, 7
L. R. A. G81), 169.
Quincy v. Barker (81 111. 300), 303.
Quincy v. Bull (106 111. 337), 100.
Quincy v. Chicago, etc. Ry. Co. (92
111. 23), 178.
Quincy, etc. Ry. Co. v. Morris (84 III
410), 153.
Quinton v. Burton (61 Iowa, 471), 303.
Quong Woo (13 Fed. Rep. 229), 214.
K.
Rae v. Mayor (51 Mich. 526), 75.
Rahway Savings Inst. v. Rahway (49
N. J. L. 384), 318.
Railroad Commission Cases (116 U.
S. 307), 4.
Railroad Co. v. Ellerman (105 JJ. S.
166), 28, 135.
Railway Co. v. East Orange (41 N.
J. L. 127), 202, 205.
Railway Co. v. Huesen (95 U. S. 465),
86.
Railway Co. v. Ren wick (102 U. S.
180), 124.
Railway Co. v. Rochmond (96 U. S.
521), 201.
Raleigh v. Pease (110 N. C. 32, 17 L,
R. A. 331), 108, 109, 114, 117.
TABLE OF CASES CITED.
Ixiii
References are to pages.
Rails Co. Court v. United States (105
U. S. 733), 35.
Ramsey v. Riley (13 Ohio, 157), 250.
Randolph v. Wood (49 N. J. L. 85),
57, 59.
Ranney v. Baeder (50 Mo. 600), 156.
Rathburn v. Wirth (150 N. Y. 459, 34
L. R A. 403), 225.
Rathke v. Gardner (134 Mass. 14), 308.
Rauch v. Chapman (Wash., 36 L. R.
A. 407), 170.
Ray T. Wilson (29 Fla, 342, 14 L. R A.
773), 316, 320.
Ray Co. v. Vansycle(96 U. S. 675), 161.
Raymond v. Fish (51 Conn. 80, 50
Am. Rep. 3), 84.
Raymond v. Lowell (6 Cush., Mass.,
524, 53 Am. Dec. 57), 293.
Read v. Plattsmouth (107 U. S. 568),
152.
Reading v. Savage (124 Pa. St 328),
54.
Reardon v. Madison (73 Ga. 184), 206.
Reardon v. St. Louis County (36 Mo.
555), 293.
Reclamation Disk v. Goloman (65
Cal. 635), 110.
Redford v. Coggeshall (R L, 36 Atl.
Rep. 89), 273.
Redwood Co. Com'rs v. Towler (28
Minn. 45), 254.
Reed v. City of Madison (83 Wis.
171), 297, 301.
Reeder v. City of Wahoo (27 Neb.
770, 43 N. W. Rep. 1145), 5.
Reese v. Watertown (19 Wall, U. S.,
107), 325.
Reeves v. Continental R Co. (152 Pa.
St. 153, 25 Atl. Rep. 517), 55.
Reeves v. Wood Co. (8 Ohio St. 333),
111.
Regan v. Farmers' L. & Tr. Co. (154
U. S. 362), 262.
Regina v. Church Wardens (1 App.
Cas. 611, 35 L. T. 381), 256.
Reg. v. Justin (24 Ont Rep. 327), 98.
Reg. v. Rogers (2 Lord Raym. 777),
131.
Reilly v. Albany (112 N. Y. 30, 19 X.
E. Rep. 508), 117.
Reimer's Appeal (100 Pa. St 182, 45
Am. Rep. 373), 101.
Reineman v. Covington, etc. Ry. Co.
(7 Neb. 310), 150l
Reiter v. State (61 Ohio St 74, 23 L.
R A. 681), 24-?.
Renick v. Davenport (47 Iowa, 511),
153.
Renken v. Fuehring (130 Ind. 3S2, 15
L. R A. 624). 111.
Reno Co. School Dipt. v. Shadduck
(25 Kan. 467), 82, 83.
Reusch v. Chicago, etc. Ry. Co. (57
Iowa, 685), 120.
Rex v. Burder (4 T. R. 778), 242.
Rex v. Commissioners of Sewers (8
Barn. & Cress. 355), 307.
Rex v. Harrison (3 Burr. 1328), 183.
Rex v. Jones (2 Stra. 1146\ 242.
Rex v. Lone (2 Stra. 920), 242.
Rex v. Maidston (3 Burr. 1837), 200.
Rex v. Mayor (5 Barn. & Aid. 692),
130.
Rex v. Mayor (2 T. R 259, 7 Eng. RuL
Cas. 328), 256.
Rex v. Patteson (4 B. & Ad, 9), 228.
Rex v. Richardson (1 Burr. 517, 538),
243, 244.
Rex v. Saunders (3 East, 119), 321.
Rex v. Bower (1 Barn. & Cress. 585),
242,
Rex v. Pateman (2 T. R 777), 228.
Reynolds v. Mandain (4 Harr., DeL,
317), 205.
Rice v. Austin (19 Minn. 103, 18 Am.
Rep. 330), 317.
Rich v. Mentz Tp. (134 U. S. 623), 156,
157.
Rich v. Naperville (42 111. App. 222),
206r 316.
Richard v. Clarkburg (30 W. Va. 591),
243.
Richards v. Cincinnati (52 Ohio St.
419, 27 L. R A. 737), 18.
Richards v. Raymond (92 III 612, 34
Am. Rep. 151), 82, 152.
Richardson v. Heydenfeldt (46 CaL
68), 71.
Richey v. Griffith (1 Wash. 429, 12 L,
R A. 3-84), 250, 251.
Ixiv
TABLE OF CASES CITED.
References are to pages.
Richman v. Muscatine Co. (77 Iowa,
513, 4 L. R. A. 445), 64.
Richmond v. Long (17 Gratt. 375, 94
Am. Dec. 461), 277.
Richmond v. McGirr(78 Ind. 192), 149.
Richmond Co. v. Lawrence Co. (12
111. 1), 34.
Richmond, etc. Co. v. West Point (27
S. E. Rep. 460), 133.
Richter v. Harper (95 Mich. 221, 54
N. W. Rep. 768), 191.
Riddell v. Proprietors (7 Mass. 169, 5
Am. Dec. 43), 286, 291.
Riddick v. Amelin (1 Mo. 7), 19.
Rideout v. Knox (148 Mass. 368, 2 L.
R. A. 81), 84.
Riggs v. Johnson County (6 Wall.,
U. S., 166), 318.
Ring v. Cohoes (77 N. Y. 83), 295.
Rippe v. Becker (56 Minn. 100, 22 L.
R. A. 857), 85.
Ritchie v. People (155 111. 98, 29 L. R.
A. 79), 84.
Rittenhouse v. Mayor (25 Md. 336, 76.
Rivers v. Augusta (67 Ga. 376, 38 Am.
Rep. 787), 278.
Road in Sterritt Tp., In re (114 Pa.
St. 637), 124.
Roane v. Anderson (89 Tenn. 259), 41.
Roanoke Gas Co. v. Roanoke (88 Va.
810), 100.
Robbins v. Milwaukee, etc. Co. (6
Wis. 637), 128.
Roberts v. Easton (19 Ohio St. 78),
102.
Robinson, Ex parte (30 Tex. App. 493,
17 S. W. Rep. 1057), 88.
Robinson's Case (131 Mass. 376), 224.
Robinson v. Franklin (1 Humph. 156,
34 Am. Dec. 625), 92, 93, 178, 199.
Robinson v. Greenville (42 Ohio St.
625, 51 Am. Rep. 857), 277, 278.
Robinson v. Jones (14 Fla. 256), 322.
Robinson v. Rohr (73 Wis. 436, 2 L.
R. A. 366), 249, 271.
Robinson v. Ruggles (50 Iowa, 240),
266.
Roby v. Sedgwick (35 Barb. 319), 20.
Roby v. Sheppard (W. Va., 26 S. E.
Rep. 278), 41.
Rochester v. Campbell (123 N. Y. 405,
20 Am. St. Rep. 760), 299, 300, 303.
Rochester v. Upham (19 Minn. 108,
Gil. 78), 90.
Rochester White Lead Co. v. Roches-
ter (3 N. Y. 463). 309. 310.
Rock Island County v. United States
(4 Wall., U. S., 435), 318.
Roderick v. Whitson (51 Hun, N. Y.,
620), 206.
Rodman v. Musselman (12 Bush, Ky.,
354, 23 Am. Rep. 724), 326.
Roe v. Kansas City (100 Mo. 190), 299.
Roeck v. Newark (33 N. J. L. 129),
319.
Roeller v. Ames (33 Minn. 132), 326.
Rogers v. Bradshaw (20 Johns. 744),
129.
Rogers v. Burlington (3 Wall., U. S.,
654), 152, 161.
Rogers v. Marlowe (55 Kan. 737, 42
Pac. Rep. 555), 246.
Rogers v. People (68 111. 154), 7.
Rolf v. Greenville (102 Mich. 544), 302.
Rollins v. Gunmson Co. (49 U. S.
App. 399, 80 Fed. Rep. 682), 162.
Rollins v. Lake Co. (34 Fed. Rep. 845),
170.
Romero v. United States (24 Ct. of
Cl. 331, 5 L. R A. 69), 234, 236.
Rooney v. Randolph (128 Mass. 580),
294
Roosevelt v. Draper (23 N. Y. 318),
823.
Roosevelt Hospital v. New York (84
N. Y. 108), 116.
Root's Case (77 Pa. St. 276), 128.
Rosenthal v. Board of Canvassers (50
Kan. 129, 19 L. R, A. 157), 318,
319. *
Ross v. Winsor (48 N. J. L. 95), 56, 58,
62.
Rothschild v. Darien (69 Ga. 503),
198.
Rowe v. Portsmouth (56 N. H. 291),
313.
Royce v. St. Louis (49 Pac. Rep. 290),
274.
Royce v. Salt Lake City (49 Pac.
Rep. 290), 284.
TABLE OF CASES CITED.
Ixv
References are to pages.
Ruan Street, In re (133 Pa. St. 257).
63.
Ruggles v. Collier (43 Mo. 353), 71.
Ruggles v. Fond du Lac (53 Wis. 436),
266, 315.
Ruilson v. Post (79 Ind. 567), 83.
Rumsey v. N. Y. & N. E. Ry. Co. (130
N. Y. 88, 15 L. R A. 618), 120.
Rurusey Mfg.. Co. v. Shell City (21
Mo. App. 175), 178, 181.
Rundle v. Delaware, etc. Canal (1
WalL Jr. 275, 290), 3.
Rusher v. Dallas (83 Tex. 151), 39.
Rushville v. Adams (107 Ind. 475, 57
Am. Rep. 124), 297.
Rushville Gas Co. v. Rushville (121
Ind. 206, 23 N. K Rep. 72, 6 L. R.
A. 315), 149, 222.
Russell v. M'Lellan (14 Pick. 63), 18.
Russell v. Men of Devon (2 T. R. 672),
19, 291.
Russell v. Place (94 U. S. 606), 150.
Rutgers v. New Brunswick (42 N. J.
L. 486), 55, 59, 60.
Rutherford v. Hamilton (97 Mo. 543),
59, 114
Rutherford v. Heddens (82 Mo. 388),
57.
Ruttles v. Covington (10 Ky. L. Rep.
766, 10 S. W. Rep. 644), 101.
Rychlicki v. St. Louis (98 Mo. 497),
308, 311.
Ryerson v. Brown (35 Mich. 333, 24
Am. Rep. 564), 121.
S.
Sackett v. New Albany (88 Ind. 473,
45 Am. Rep. 467), 170.
Sacramento v. Colorado Stage Co. (12
Cal. 132), 92.
Sacramento v. Dillman (102 CaL 107,
36 Pac. Rep. 385), 189.
Sadler v. Eureka Co. (15 Nev. 44), 177.
Safety Ins., W. & C. Co. v. Baltimore
(66 Fed. Rep. 140, 25 U. S. App.
166), 23, 80.
Safety Ins., W. & C. Co. v. Mayor (66
Fed. Rep. 140), 76.
Sage v. Brooklyn (89 N. Y. 189), 128.
Sage v. Lorain (19 Mich. 137), 248.
Saginaw G. L. Co. v. Saginaw (28 Fed.
Rep. 529), 80, 138, 262.
Salamanca Tp. v. Jasper Co. Bank
(22 Kan. 696), 148.
Salem "Water Co. v. Salem (5 Oreg.
30), 170, 174.
Saleno v. City of Neosho(127 Mo. 627,
27 L. R A. 769), 170, 174, 185, 187.
Saline Co. Com'rs v. Anderson (20
Kan. 398, 27 Am. Rep. 171), 237.
Salisbury v. Andrew (128 Mass. 336),
100.
Salisbury v. Ithaca (94 N. Y. 27), 299.
Salisbury v. Herchenroder (106 Mass.
458, 8 Am. Rep. 354), 101.
Salt Lake City v. Hollister (118 U. S.
256), 151, 271.
Saltpetre Case (6 Coke, 206), 94.
Sanborn v. Neal (4 Minn. 126, 77 Am.
Dec. 502), 247.
Sanborn v. Rice Co. (9 Minn. 273), 40.
San Francisco Gas Co. v. San Fran-
cisco (6 CaL 190), 178.
Sangamon v. Springfield (63 III 66),
34.
San Luis Water Co. v. Estrada (48
Pac. Rep. 1075), 140.
Santa Anna Co. v. San B. etc. (56
Fed. Rep. 339), 79.
Santo v. State (2 Iowa, 155, 63 Am.
Dec. 487), 239.
Sargent v. Tuttle (67 Conn. 162, 34
AtL Rep. 1028, 32 L. R. A. 822),
108.
Satterfield v. Malone (35 Fed. Rep.
445, 1 L. R A. 35), 250.
Sauk v. Philadelphia (8 Phila., Pa.,
118X 187.
Sault Ste. Marie v. Van Dusen (40
Mich. 429), 148.
Savannah v. Donnelly (71 Ga. 258),
296.
Savings Society v. Philadelphia (31
Pa. St 175), 198.
Sawyer v. Adams (8 Vt. 172), 251.
Sawyer v. Concordia (12 Fed. Rep.
754), 35.
Sawyer, In re (124 U. S. 200), 22L
Saxton v. St. Joseph (60 Mo. 153), 176.
Ixvi
TABLE OF OASES CITED.
References are to pages.
Scales v. Cbattahoochee Co. (41 Ga.
225), 7, 293.
Scanlon v. Wedger (16 L. R. A. 395),
278.
Schenly v. Com. (36 Pa. St. 39), 111.
Schipper v. Aurora (121 111. 154, 6 L.
R. A. 318), 262.
School District v. Gage (39 Mich. 484),
326.
School District v. Smith (67 Vt. 566,
32 Atl. Rep. 484), 232.
School District v. Stough (4 Neb. 357),
145.
School District v. Thompson (5 Minn.
280), 147.
School District v. Weber (75 Mo. 558),
39.
School District v. Williams (38 Ark.
454), 5.
School District v. Wood (13 Mass.
192), 6, 19.
Schroeder v. Baraboo (93 Wis. 95, 67
N. W. Rep. 27), 310, 312.
Schultz v. Milwaukee (48 Wis. 254,
35 Am. Rep. 779), 278, 299.
Schumann v. Ft. Wayne (127 Ind. 109,
11 L. R. A. 378), 91.
Schumm v. Seymour (24 N. J. Eq.
143), 176.
Schwartz v. Oshkosh (55 Wis. 490),
188.
Schweizer v. Liberty (82 Mo. 309),
188.
Scotland Co. v. Hill (132 U. S. 107),
162.
Scott v. Davenport (34 Iowa, 208),
171.
Scott v. Fishbate (117 N. C. 265, 30
L. R. A. 696), 239, 249.
Scowden's Appeal (96 Pa. St. 422),
58, 61.
Scranton's Appeal (113 Pa. St. 190),
55.
Scranton v. Catterson (94 Pa. St. 202),
296.
Scranton v. Whyte (148 Pa. St. 419,
23 Atl. Rep. 1043), 55.
Screws v. Watson (48 Ala. 628), 251.
Scudder v. Hinshaw (134 Ind. 56), 205.
Seagraves v. Alton (13 111. 366), 263.
Seaman v. New York (80 N. T. 239),
287.
Searcy v. Grow (15 Cal. 117), 227.
Seattle & Mont. R. Co. v. State (7
Wash. 150, 22 L. R. A. 217), 126.
Seben v. City of Chicago (165 111.
371), 286, 297.
Second Ward Sav. Bank v. City of
Huron (80 Fed. Rep. 661), 164.
Sedgwick v. Bunker (16 Kan. 498), 44
Seele v. Deering (79 Me. 343), 271.
Seeley v. Litchfield (49 Conn. 134, 44
Am. Rep. 213), 294.
Seeley v. Westport (47 Conn. 294),
266.
Seely v. Pittsburgh (82 Pa. St. 360,
22 Am. Rep. 760), 114, 115.
Seep v. St. Louis, etc. R. Co. (58 Ark.
407, 23 L. R A. 264), 84.
Seibert v. Lewis (122 U. S. 284), 35, 36.
Seifert v. Brooklyn (101 N. Y. 136),
309, 310, 311, 312.
Selleck v. Tall man (93 Wis. 246),
300.
Selma & Gulf R. Co., Ex parte (45
Ala. 696, 732), 6, 153.
Selvin v. North, etc. (L. R. 9 Ch. App.
705), 89.
Senate Bill, In re (12 Colo. 188), 24, 32.
Senate of Happy Home Club v. Al-
pena Co. (99 Mich. 117, 23 L. R.
A. 144), 95.
Sessions v. Boykin (78 Ala. 328), 316.
Severin v. Cole (38 Iowa, 463), 126.
Seybert v. Pittsburgh (1 Wall. 272),
149.
Seymore v. Turnpike Co. (10 Ohio,
477), 4
Seymour v. Cummings (119 Ind. i48,
5 L. R, A. 126), 309.
Seymour v. School District (53 Conn.
502), 826.
Shad v. Crawford (3 Mete., Ky., 207),
30.
Shadier v. Blair County (136 Pa. St.
488), 293.
Shaefler v. Sandusky (33 Ohio St.
246), 303.
Shafer v. Mumma (79 Md. 331), 130,
196.
TABLE OF CASES CITED.
Ixvii
References are to pages.
Shaffel v. State (72 N. W. Rep. 888),
131.
Shane v. St. Paul (26 Minn. 543), 265.
Shannon v. Portsmouth (54 N. H.
183). 245.
Shapleigh v. San Angelo (167 U. S.
646), 35, 45.
Sharon R. Co.'s Appeal (122 Pa. St.
533), 122.
Shaw v. Independent School District
(40 U. S. App. 475, 77 Fed. Rep.
277), 168.
Shaw v. Pickett (26 Vt 482), 118.
Shawnee Co. Com'rs v. Carter (2
Kan. 115), 144,
Shawneetown v. Baker (85 III 563),
82.
Shawneetown v. Mason (82 III 337),
128.
Sharpless v. Philadelphia (21 Pa. St.
147, 27 L. R A. 72), 152, 153, 154
Sbartle v. Minneapolis (17 Minn. 308,
Gil. 284), 292.
Shaub v. Lancaster (156 Pa. St. 362,
21 L. R. A. 691), 186.
Sheehan v. Good Samaritan Hospital
(50 Mo. 155, II Am. Rep. 112), 115.
Shelby v. Clagett (46 Ohio St 549),
29*2.
Sheldon v. Fox (48 Kan. 356, 16 L. R
A. 257), 79.
Sheley v. Detroit (45 Mich. 431), 111,
114.
Shelle v. Bryden (114 Pa. St. 147), 251.
Shepard v. People (40 Mich. 487), 88.
Shepard v. Pulaski County (Ky., 18
S. W. Rep. 15), 306.
Shepard son v. Milwaukee, etc. R Co.
(6 Wis. 605), 129.
Sheperd v. Burkhalter (13 Ga. 447),
250.
Sheperd v. Sullivan (166 III 78, 46 N.
E. Rep. 720), 117.
Sherbourne v. Yuba Co. (21 CaL 113), 6,
284
Sheridan v. Salem (14 Oreg. 328), 292.
Sherlock v. Stuart (96 Mich. 193, 21
L. R. A. 580), 317.
Sherman v. Williams (84 Tex. 421, 19
S. W. Rep. 606), 325.
Sherman Co. v. Simmons (109 U. S.
735), 5, 167.
Sherwin v. Bugbee (17 Vt 337), 220.
Sherwood v. C. W. Co. (90 CaL 635),
137.
Sherwood v. City (109 Ind. 410). 126.
Sheuck v. Borough (181 Pa. St. 191),
178.
Shields v. Durham (118 N. C. 450), 284
Shipley v. Baltimore, etc. R Co. (34
Md. 336), 128.
Shirk v. Pulaski Co. (4 Dili C. C. 209),
145.
Short v. Maryland (80 Md. 392), 225.
Short v. Symes (150 Mass. 298, 15 Am.
St. Rep. 204), 228.
Short-Conrad v. School District (69
N. W. Rep. 337), 68.
Shrove v. Larson (22 Wis. 142), 251.
Shue v. Commissioners (41 Mich. 638),
124
Shussler v. Hen nepin County (Minn.,
70 N. W. Rep. 6), 272, 273, 274.
Sibley v. Dowlan (36 Minn. 431), 5.
Sievers v. San Francisco (115 Cal.
648), 269.
Simms v. Hymmes (121 Ind. 534), 129.
Simon v. Atlanta (67 Ga. 618, 44 Am.
Rep. 729), 283.
Simon v. Northrup (27 Oreg. 487, 30
L. R A. 171), 28, 38.
Sinclair v. Baltimore (59 Md. 592), 295.
Sinclair v. Slasson (44 Mich. 127), 251.
Sinking Fund Cases (99 U. S. 700), 29.
Sinton v. Ashbury (41 CaL 525), 39.
Sioux City v. Weare (59 Iowa, 195),
172, 300.
Sioux City, etc. St. Ry. Co. v. Osceola
Co. (45 Iowa, 168, 52 Iowa, 26),
162.
Skaggs v. Martinsville (140 Ind. 476,
49 Am. St. Rep. 209, 33 L. R A.
781), 193.
Skinner v. Henderson (26 Fla. 121, 8
L. R A. 55), 34
Skinner v. Santa Rosa (29 L. R A.
512), 157. "
Sloane v. Beebe (24 Kan. 343), 111.
Smith v. Appleton (19 Wis. 468), 35, 37.
Smith v. Com. (41 Pa. St 335), 179.
Ixviii
TABLE OF CASES CITED.
References are to pages.
Smith v. Dedham (144 Mass. 177), 79,
174
Smith v. Duncan (77 Ind. 92), 71.
Smith v. Gould (61 Wis. 31), 268.
Smith v. Emporia (27 Kan. 528), 177.
Smith, Ex parte (135 Mo. 223, 33 L.
R. A. 606), 198, 212.
Smith, Ex parte (38 Cal. 702), 52.
Smith v. Farrelly (52 CaL 77), 266.
Smith, In re (99 N. Y. 424), 111.
Smith v. Knoxville (3 Head, Tenn.,
245), 209.
Smith v. Mayor (88 Tenn. 464), 138.
Smith v. Milwaukee Bldg. Ex. (91
Wis. 360, 30 L. R. A. 63), 26, 99.
Smith v. Nashville (88 Tenn. 464, 7
L. R. A. 469), 87, 138.
Smith v, Newbern (70 N. C. 14, 16
Am. Rep. 766), 67, 68.
Smith v. People (162 III 534, 33 L. R.
A. 470), 178.
Smith v. Philadelphia (81 Pa. St. 38,
22 Am. Rep. 731). 288.
Smith v. Rochester (76 N. Y. 506),
271.
Smith v. Sherry (50 Wis. 200), 41.
Smith v. Waterbury (54 Conn. 174, 7
Atl. Rep. 17), 238.
Smith v. Westcott (17 R. L 366, 13 L.
R, A. 217), 26.
Smith v. Whitney (116 U. S. 167), 322.
Smoot v. Weturnpka (24 Ala. 112),
292.
Snell, In re (58 Vt, 257), 200.
Snider v. St Paul (51 Minn. 466), 271.
Snyder v. Albion (Mich., 71 N. W.
Rep. 475), 305.
Snyder v. Rockport (6 Ind. 237), 135.
Society of Savings v. New London
(29 Conn. 174), 153.
Somer v. Philadelphia (35 Pa. St. 231),
178, 179.
Somerville v. Dickerman (127 Mass.
272), 67.
Sommers v. Marshfield (90 Wis. 59),
299.
Sonoma County Tax Case (13 Fed.
Rep. 791), 265.
Soon Hing v. Crowley (113 U. S. 703),
199, 214.
Soper v. Henry Co. (26 Iowa, 264), 5.
South Bend v. Martin (142 Ind. 81, 29
L. R. A, 531), 91.
South Cov. Ry. Co. v. Barry (93 Ky.
43, 18 S. W. Rep. 1026), 206.
South Omaha v. Powell (Neb., 70 N.
W. Rep. 391), 299.
South Park Com'rs v. Williams (51
111. 57), 121.
Southern Bell Tel. Co. v. Richmond
(78 Fed. Rep. 858), 107.
Southport v. Ogden (23 Conn. 128),
199, 200.
Sowles v. Soule (59 Vt. 131), 265.
Spangler v. San Francisco (84 Cal.
12), 310.
Spaulding v. Andover (54 N. H. 38),
33.
Spaulding v. Lowell (23 Pick. 71), 69.
Spaulding v. Peabody (153 Mass. 129,
26 N. E. Rep. 421), 137, 138.
Speakorship, In re (15 Colo. 500, 11
L. R A. 240), 220.
Speed v. Detroit (98 Mich. 360, 22 L.
R. A. 842), 30, 245, 246.
Speir v. Brooklyn (138 N. Y. 6, 21 L.
R. A. 641), 273, 278.
Spencer v. Merchant (125 U. S. 345),
110, 113.
Springfield v. Edwards (84 111. 626),
172, 173, 175.
Springfield v. Green (120 111. 269), 114.
Springfield v. Le Claire (49 III 476),
304.
Springfield v. Spence (39 Ohio St.
665), 309.
Springfield Fire Insurance Co. v.
Keeseville (148 N. Y. 46, 30 L. R.
A. 660), 281, 287, 288.
Spring Valley Co. v. Spring Va*lley
(65 111. App. 571), 279.
Spring Valley Water-works v. San
Francisco (82 Cal. 286, 16 Am. St.
Rep. 116), 240.
Spring Valley Water-works v. Scbot-
tler (110 U. S. 347), 4.
Staates v. Washington (44 N. J. L.
605), 184.
Stafford v. Oskaloosa (57 Iowa, 748),
294.
TABLE OF CASES CITED.
bd s
References are to pages.
Stanfield v. State (83 Tex. 370, 18 S.
W. Rep. 577), 54
Stanke v. St. Paul (Minn., 73 N. W.
Rep. 629), 302.
Stanley v. Davenport (54 Iowa, 463,
37 Am. Rep. 216), 102, 272, 297, 299.
Starr v. Burlington (45 Iowa, 87), 195.
State v. Ackerman (51 Ohio St. 163,
24 L. R A. 298), 322.
State v. Ames (31 Minn. 440). 316.
State v. Anderson (44 Ohio St 247),
60.
State v. Anderson (58 N. J. L. 515, 33
Atl. Rep. 846), 224.
State v. Anderson (45 Ohio St. 196,
12 N. E. Rep. 656), 223.
State v. Anwerda (40 Iowa. 151), 89.
State v. Atlantic City (49 N. J. L.
558), 170.
State v. Atlantic City (52 N. J. L. 332,
8 L. R. A. 697), 319.
State v. Austin (114 N. C. 855, 41 Am.
St. Rep. 817), 199.
State v. Ballin (144 U. S. 1), 222.
State T. Barrows (Minn., 1898, 73 N.
W. Rep. 704), 226.
State v. Bayonne (35 N. J. L. 335),
177, 179.
State v. Bayonne (44 N. J. L. 114),
71, 214.
State v. Benerly (45 N. J. L. 289), 181.
State v. Bennett (29 Mich. 451, 18
Am. Rep. 107), 42.
State v. Bergen (33 N. J. L. 39, 72),
179, 184
State v. Berka (30 N. W. Rep. 267), 55.
State v. Bill (13 Ired., N. C., 273), 324
State v. Binder (38 Mo. 450), 221.
State v. Blair (76 N. C. 78), 254
State v. Blossom (19 Nev. 312), 234
State v. Blue (122 Ind. 600), 83.
State v. Board (24 Wis. 683), 79.
State v. Board of County Canvassers
(129 N. Y. 395), 319.
State v. Board of Freeholders (52 N. J.
L. 512, 19 AtL Rep. 972), 55.
State v. Board of Pub. Works (27
Minn. 62), lia
State v. Boneil (42 La. Ann. 1110, 21
Am. St. Rep. 413), 196.
State v. Boucher (3 N. Dak. 389, 21
L. R. A. 539), 224
State v. Boyd (19 Nev. 43), 48, 60.
State v. Briugeman (8 Kan. 458), 316.
State v. Brinkerhoff (66 Tex. 45), 230.
State v. Bronson (115 Mo. 271), 82.
State v. Brown (19 Fla. 563), 214
State v. Bruggerman (31 Minn. 493),
129.
State v. Bulkley (61 Conn. 287, 14 L.
R A. 657), 241, 321.
State v. Buss ( 125 Mo. 335, 33 L. R A.
616), 229, 231, 2oi
State v. Camden (58 N. J. L. 515, 33
Atl. Rep. 846), 185.
State v. Caminade (54 N. J. L. 135,
25 Atl. Rep. 933), 59.
State v. Cantiney (34 Minn. 1), 181.
State v. Cantler (33 Minn. 69), 214
State v. Carr (129 Ind. 44, 13 L. R A.
127), 237.
State v. Carrigan, etc. R Co. (85 Mo.
263), 101.
State v. Carrol (38 Conn. 449, 9 Am.
Rep. 409), 232.
State v. Cassidy (22 Minn. 312), 9t
State v. Cassidy (22 Minn. 321, 21 Am.
Rep. 765), 90.
State v. Chicago, etc. Ry. Co. (80
Iowa, 586), 125.
State, Childs v. Minnetonka (57 Minn.
526, 25 L. R A. 755), 42.
State v. Choate (11 Ohio, 511), 256.
State v. Churchill (15 Minn. 455, GiL
369), 320.
State v. Cincinnati (20 Ohio St 18),
65.
State v. Cincinnati (52 Ohio St 419,
27 L. R A. 737), 1&
State v. Cincinnati, etc. Gas Co. (18
Ohio St 262). 80, 100, 193, 322.
State v. City of Great Falls (Mont,.
1897, 49 Pac. Rep. 15), 23.
State v. City of Hudson (29 N. J. L,
475), 184
State v. City of Orange (N. J., IS
AtL Rep: 240), 208.
State v. City of Trenton (53 N. J. 1+
132, 20 Atl. Rep. 1076), 20a
State v. Clark (54 Mo. 17), 193, 200.
Ixx
TABLE OF OASES CITED.
State v. C'.irk (3 Nev. 566), 227, 242.
State v. Clark (23 Minn. 422), 158.
State v. Clark (52 Mo. 508), 236.
State v. Clark (28 N. H. 176), 209.
State v. Clayton (27 Kan. 442, 41 Am.
Rep. 482), 242.
State v. Clinton Co. (6 Ohio St. 280),
161.
State v. Comm. (51 N. J. L. 402, 14
Atl. Rep. 587), 57.
State v. County Com'rs (39 Ohio St.
188), 78.
State v. Considine (16 Wash. 358, 47
Pac. Rep. 75), 210.
State v. Cooley (83 111. 585), 47.
State v. Cooley (56 Minn. 540), 55, 56.
State v. Copeland (96 Tenn. 296, 81
L. R A. 844), 253, 255.
State v. County Court (51 Mo. 83), 63.
State v. Covington (29 Ohio St. 102),
47, 51, 53.
State v. Covington (29 Ohio St. 109), 30.
State v. Covington (29 Ohio St. Ill), 73.
State v. Craig (132 Ind. 54, 16 L. R.
A. 688), 30.
State v. Croft (24 Ark. 560), 254
State v. Daviess Co. (64 Mo. 30), 156.
State v. Defies (44 La, Ann. 45, 12
So. Rep. 841), 216.
State v. De Gress (53 Tex. 387), 256.
State v. Delaney (N. J., 1893, 25 Atl.
Rep. 946), 225.
State v. Denny (118 Ind. 382, 4 L. R.
A. 79), 30, 31.
State v. Denny (118 Ind. 449, 4 L. R.
A. 65), 25, 29, 30.
State v. Deriug (84 Wis. 585, 19 L.
R. A. 858, 36 Am. Rep. 948), 189,
206, 207, 215.
State v. Dickson County Com'rs (24
Neb. 106), 79.
State v. Dillon (32 Fla. 545, 22 L. R
A. 124), 223, 225.
State v. Dillon (125 Ind. 65, 5 N. R
Rep. 136), 222, 223.
State v. District Court (29 Minn. 62),
113.
State v. District Court (33 Minn.
235), 5.
State v. District Court (41 Minn. 518),
186.
State v. Dixon, etc. (31 Neb. 552), 82.
State v. Doherty (16 Wash. 382, 47
Pac. Rep. 958), 224.
State v. Donaldson (41 Minn. 74), 84.
State v. Donovan (20 Nev. 75, 15 Pac.
Rep. 783), 57.
State v. Dousnian (28 Wis. 541), 48, 50.
State v. Draper (45 Mo. 355), 229.
State v. Dunn (12 Am. Dec. 25), 256.
State v. Du Barry (44 La. Ann. — ,
11 So. Rep. 718), 216.
State v. Dupaquier (46 La. Ann. 577,
26 L. R A. 162), 87.
State v. Eau Claire (40 Wis. 533), 121.
State v. Eidson (76 Tex. 302, 7 L. R
A. 733), 42, 43.
State v. Elizabeth (37 N. J. L. 432),
179.
State v. Elizabeth (57 N. J. L. 71, 23
L. R A. 525), 56.
State v. Ellet (47 Ohio St. 90, 23 N. E.
Rep. 931), 52, 53, 60.
State v. Ermentrout (63 Minn. 106, 65
N. W. Rep. 251), 224.
State v. Essex County (23 N. J. L.
214), 317.
State v. Everly (12 Nev. 616), 327.
State v. Fagin (42 Conn. 32), 241.
State v. Ferguson (31 N. J. L. 170),
242.
State v. Ferris (53 Ohio St. 1, 30 L.
R A. 218), 47, 52.
State v. Finn (87 Mo. 310), 251.
State v. Fond du Lac, etc. (24 Wis.
683), 78.
State v. Forest (74 Wis. 610), 42.
State v. Forkner (94 Iowa. 733, 28 L.
R A. 208), 54.
State v. Fountain (14 Wash. 236), 182.
State v. Fourcade (45 La. Ann. t!7,
40 Am. St. Rep. 249), 203, 203.
State v. Freeman (38 N. H. 426), 211.
State v. French (17 Mont. 54, 39 L. R.
A. 415), 91, 208.
State v. Friedley (135 Ind. 119, 21 -L.
R A. 634), 236, 246.
State v. Gardner (34 N. J. L. 327), 114.
State v. Gary (21 Wis. 496), 246.
State v. Gas Co. (29 Wis. 452), 137.
State v. Gas Light Co. (102 Mo. 472),
137.
TABLE OF CASES CITED.
Ixxi
'References are to pages.
State v. Gates (35 Minn. 385), 240.
State v. George (23 Fla, 585), 224.
State v. Glenn (54 Md. 571), 132.
State v. Goff (15 R L 207, 2 Am. St
Rep. 921), 229, 230.
State v. Goodville (30 W. Va. 179, 6
L. R A. 621), 225.
State v. Govan (70 Miss. 535, 12 So.
Rep. 959), 18.
State v. Graham (16 Neb. 74), 57.
State v. Green (37 Ohio St. 227), 222.
State' v. Hamilton (47 Ohio St 52, 23
N. E. Rep. 935), 138.
State v. Hammer (42 N. J. L. 435, 440),
56, 58, 60.
State v. Hannibal, etc, Ry. Co. (75
Mo. 209), 108.
State v. Hardy (7 Neb. 377), 191, 194.
State v. Harper (6 Ohio St. 607, 67
Am. Dec. 363), 254.
State v. Harrington (68 Vt. 622, 34 L.
R A. 100), 208.
State v. Harris (50 Minn. 128, 53 N.
W. Rep. 387). 132, 183, 196.
State v. Harris (96 Mo. 29, 22 Am. &
Eng. Corp. Cas. 43), 158.
State v. Harrison (113 Ind. 440), 241.
State v. Harshaw (73 Wis. 211), 44.
State v. Hart (33 L. R A. 118), 134,
State v. Hawkins (44 Ohio St. 98), 245.
State v. Haworth (122 Ind. 462), 39,
82.
State v. Hellmon (56 Conn. 190), 209.
State v. Henderson (38 Ohio St. 644),
185.
State v. Hermann (75 Mo. 340), 60.
State v. Hill (32 Minn. 275), 318.
State v. Hitchcock (1 Kan. 178), 63.
State T. Hordey (39 Kan. 657, 18 Pac.
Rep. 942), 156.
State v. Houston (78 Ala. 576, 56 Am.
Rep. 59), 255.
State v. Hoyt (2 Oreg. 246), 230.
State v. Hughes (72 N. C. 25), 206.
State v. Hughes County (1 S. D. 292,
10 L. R A. 588), 324.
State v. Hunter (38 Kan. 578), 25, 30,
55.
State v. Hutt (2 Ark. 282), 230.
State v. Huy venhan (42 La. Ann. 483,
7 So. Rep. 621), 211.
State v. Ironton Gas Co. (37 Ohio SL
45), 4.
State v. Itzkovitch (49 La, Ann. 366,
21 So. Rep. 544), 89.
State v. Jacksonville S. R Co. (29
Fla. 590), 27.
State v. Janesville, etc, Ry. Co. (87
Wis. 72, 41 Am. St. Rep. 23), 204.
State v. Jersey City (25 N. J. L. 536),
245, 246, 319.
State v. Jersey City (27 N. J. L. 493),
178, 179.
State v. Jersey City (29 N. J. L. 441),
117.
State v. Jersey City (34 N. J. L. 429),
184.
State v. Jersey City (37 N. J. L. 128),
115.
State v. Johnson (30 Fla. 433, 18 L.
R A. 414), 244, 245.
State v. Johnson (35 Fla, 2, 35 L. R
A. 357), 320.
State v. Jones (109 U. S. 513), 124.
State v. Judge (38 La, Ann. 43, 58
Am. Rep. 158), 241.
State v. Judges (21 Ohio St. 1), 51.
State v. Judge, etc. (42 La. Ann. 1089,
10 L. R A. 248), 324.
State v. Kemp (69 Wis. 470, 2 Am. St
Rep. 753), 240.
State v. Kiichli (53 Minn. 147, 54 N.
W. Rep. 1069, 19 L. R A. 779),
220, 223, 243.
State v. Kirk (44 Ind. 401), 231.
State v. Kirkwood(14Iowa, 162), 317.
State v. Kolsen (130 Ind. 361), 26, 30,
34, 63.
State v. Labatate (39 La. Ann. 513,
2 So. Rep. 550), 200.
State v. Laclede Gas Co. (102 Mo. 472,
22 Am. St. Rep. 789), 134
State v. Langlie (5 N. D. 594, 32 L. R
A. 723), 316, 320.
State v. Lanier (31 La. Ann. 423), 254.
State v. Leavey (22 Nev. 454), 30.
State v. Leavy (21 La. Ann. 538), 31.
State v. Lee" (22 Minn. 407, 13 N. W.
Rep. 913), 196.
State v. Lee (29 Minn. 445), 132.
State v. Leech (60 Me. 58, 11 Am. Rep.
172), 246.
Ixxii
TABLE OF CASES CITED.
References are to pages.
State v. Leffingwell (54 Mo. 458), 5, 6.
State v. Lincoln Co. (35 Neb. 346), 79.
State v. Long Branch (42 N. J. L. 364,
36 Am. Rep. 518), 210.
State v. Lusk (48 Mo. 242), 231.
State v. McCabe (74 Wis. 481, 43 N. W.
Rep. 322), 316.
State v. McGarry (21 Wis. 496), 244.
State v. McGrath (91 Mo. 886), 77, 79.
State v. McMahon (Minn., 1897, 72
N. W. Rep. 79), 90, 215.
State v. McNally (48 La. Ann. 1450,
21 So. Rep. 27, 36 L. R. A. 533),
208.
State v. McQuay (12 Wash. 554, 14
Pac, Rep. 897), 244.
State v. McReynolds(61 Mo. 203), 321.
State v. Macklin (13 S. W. Rep. 680),
59.
State v. Madison St. Ry. Co. (72 Wis.
612, 1 L. R. A. 771), 103.
State v. Mahner (43 La. Ann. 496, 9 So.
Rep. 840), 217.
State v. Maine (37 Atl. Rep. 80), 87.
State v. Manitowoc (52 Wis. 421), 316,
318.
State v. Marlow (15 Ohio St. 114), 240.
State v. Mayor, etc. (37 N. J. L. 348),
205.
State v. Mayer of Atlantic City (52
N. J. L. 332, 8 L. R. A. 967), 234.
State v. Mayor of Newark (53 N. J. L.
4, 20 Atl. Rep. 86), 62.
State v. Medbery (7 Ohio St. 523), 174.
State v. Merrill (37 Me. 329), 75.
State v. Messenger (27 Minn. 119), 129.
State v. Meyer (54 N. J. L. Ill, 22 Atl.
Rep. 1004, 14 L. R. A. 62), 190.
State v. Miller (100 Mo. 439), 59.
State v. Milner (Minn., 68 N. W. Rep.
732), 226.
State v. Milwaukee (20 Wis. 87), 5.
State v. Mitchell (31 Ohio St. 592), 60.
State v. Montgomery (74 Ala. 226),
156.
State v. Moore (90 Ind. 294), 226.
State v. Moore (74 Mo. 413, 41 Am.
Rep. 322), 254.
State v. Moores (Neb., 1898, 73 N. W.
Rep. 299), 227.
State v. Morristown (33 N. J. L. 57),
200.
State v. Morse (50 N. H. 9), 124.
State v. Moyer (5 Port, Ala., 279), 93.
State v. Municipal Court (32 Minn.
329), 198.
State v. Murray (29 Wis. 96, 9 Am.
Rep. 489), 227.
State v. Nashville (15 Lea, Tenn., 697),
198, 239.
State v. Nelson (34 L. R. A. 318), 74.
State v. Nelson (41 Minn. 25, 4 L. R.
A. 300), 266, 320.
State v. Nelson (Minn., 68 N. W. Rep.
1066), 207.
State v. Nelson Co. (45 N. W. Rep. 33,
8 L. R. A. 283), 154.
State v. Nevin (19 Nev. 162), 254.
State v. Newark (25 N. J. L. 399), 177,
187, 324.
State T. Newark (27 N. J. L. 185), 116.
State v. Newark (30 N. J. L. 303), 185.
State v. New Brunswick (58 N. J. L.
255), 177.
State v. New Orleans (37 La. Ann.
13), 35.
State v. New Orleans (109 U. S. 285),
278.
State v. Northumberland (46 N. H.
156), 304.
State v. Norton (63 Minn. 497), 114.
State v. Oats (86 Wis. 6S4, 39 Am. St.
Rep. 912), 256.
State v. Ocean Grove, etc. Ass'n (55
N. J. L. 507, 26 Atl. Rep. 798), 208.
State v. Ocean Grove Camp Meeting
Ass'n (57 N. J. L. 110, 35 AtL Rep.
794), 183.
State v. O'Connor (54 N. J. L. 36, 22
AtL Rep. 1091), 62.
State v. Ollinger (Iowa, 1897, 72 N.
W. Rep. 441), 235.
State v. Orange (50 N. J. L. 389, 13
Atl. Rep. 240), 202.
State v. Orr (68 Conn. 101, 28 L. R. A.
279), 84
State v. Osawkee Tp. (14 Kan. 418, 19
Am. Rep. 99), 154.
State v. Parker (25 Minn. 215), 321.
State v. Parkinson (5 Nev. 17), 175.
TABLE OF CASES CITED.
Ixxiii
References are to pages.
State v. Parsons (40 N. J. L. 1), 47.
State v. Paterson (34 N. J. L. 163), 71.
State v. Patterson (98 N. C. 660), 182.
State v. Patterson (40 N. J. L. 186),
238.
State v. Peterson (50 Minn. 241), 245.
State v. Pinkerman (63 Conn. 176, 22
L. R A. 563), 234, 236, 239.
State v. Pond (93 Mo. 606, 6 S. W. Rep.
469), 54, 55.
State v. Porter (113 Ind. 79)? 223.
State v. Powell (97 N. C. 417), 132.
State v. Powers (38 Ohio St. 54), 52.
State v. Powle (67 Ma 395, 29 Am.
Rep. 512), 254
State v. Pratt (52 Minn. 131), 98.
State v. Priester (43 Minn. 373), 194.
State v. Pritchard (36 N. J. L. 101),
245.
State v. Pugh (43 Ohio St. 98), 60.
State v. Putnam Co. Coin'rs (23 Fla.
632), 97.
State v. Rahway (33 N. J. L. Ill), 319.
State v. Rahway (58 N. J. L. 578),
183.
State v. Redmon (43 Minn. 250),
214.
State v. Reis (38 Minn. 371), 109, 111,
114.
State v. Riordan (24 Wis. 484), 48, 49,
50.
State v. Roberts (74 Mo. 21), 83.
State v. Robinson (35 Neb. 401, 17 L.
R A. 383), 320.
State v. Robitshek (60 Minn. 123), 132,
196.
State v. Rogers (10 Nev. 250), 182.
State v. Rose (4 N. D. 319, 26 L. R. A.
593), 324.
State v. Ruff (4 Wash. 334, 16 L. R. A.
140). 226.
State v. Saline Co. (48 Mo. 390, 8 Am.
Rep. 108), 156.
State v. Saline Co. (51 Mo. 350, 11 Am.
Rep. 454), 323.
State v. Savage (89 Ala. 1, 7 L. R. A.
426), 246.
State v. Schar (50 Mo. 393), 251.
State v. Schweick (19 So. Rep. 97),
135.
State v. Seavey (22 Neb. 454), 30.
State v. Secrest (13 Minn. 381), 318.
State v. Segel (60 Minn. 507), 210.
State v. Sexton (42 Minn. 154), 132.
State v. Shannon (132 Mo. 139), 226.
State v. Shea (Iowa, 1897, 72 N. W.
Rep. 300), 238.
State v. Shearer (46 Ohio St 275), 52.
State v. Sheppard (64 Minn. 287, 36
L. R. A. 305), 202, 205.
State v. Sherwood (15 Minn. 221, 2
Am. Rep. 116), 320.
State v. Simon (53 N. J. L. 550, 22
AtL Rep. 120), 57.
State v. Sloan (48 S. C. 21, 25 & K
Rep. 598), 102.
State v. Smith (26 N. E. Rep. 1069), 60.
State v. Smith (87 Mo. 158), 241.
State v. Smith (44 Ohio St. 348), 31.
State v. Smith (22 Minn. 218), 320.
State v. Smith (14 Wis. 497), 226.
State v. Somerby (42 Minn. 55), 321.
State v. Soniers' Point (52 N. J. L. 33,
6 L. R. A. 57), 56.
State v. Sonne (16 R L 620), 256.
State v. South Kingston (18 R L 258,
22 L. R. A. 65), 320.
State v. Southern Minn. Ry. Co. (IS
Minn. 40, Gil 21), 316.
State v. Spande (27 Minn. 322, 34 N.
W. Rep. 164), 47, 55.
State v. Spaulding (Iowa, 72 N. W.
Rep. 288), 223.
State v. Spondee (37 Minn. 322), 47.
State v. Squires (26 Iowa, 340), 64
State v. Stark (18 Fla. 255), 49.
State v. Stone (120 Mo. 428, 23 L. R.
A. 194), 317.
State v. Stout (58 N. J. L. 598, 33 AtL
Rep. 858), 17.
State v. Strauss (49 Md. 288), 210.
State v. St. Joseph (37 Mo. 270), 158.
State v. St. Paul (32 Minn. 329), 93.
State v. St. Paul (34 Minn. 250), 324
State v. St. Paul, etc. R Co. (35 Minn.
131, 59 Am. Rep. 313), 29.3.
State v. Sullivan (45 Minn. 309, 11 L.
R A. 272), 321.
State v. Superior (90 Wis. 612, 64 N.
W. Rep. 304), 245.
Ixxiv
TABLE OF CASES CITED.
References are to pages.
State v. Supervisors (25 Wis. 339), 48,
50.
State v. Sutton (63 Minn. 147, 65 N.
W. Rep. 262, 30 L. R. A. 630), 227.
State v. Synott (89 Me. 41), 181.
State v. Taft (118 N. C. 1190, 23 S. E.
Rep. 970, 32 L. R. A. 122), 85, 86,
87, 210.
State v. Tappan (29 Wis. 664, 9 Am.
Rep. 622), 39, 40, 41.
State v. Tippecanoe County (45 Ind.
501), 317.
State v. Toledo (48 Ohio St. 112, 11
L. R. A. 729), 57.
State v. Tolle (71 Mo. 645), 57, 59.
State v. Tolon (33 N. J. L. 195), 322.
State v. Tracy (48 Minn. 497, 51 N. W.
Rep. 613), 321, 322.
State v. Trenton (35 N. J. L. 485), 226.
State v. Trenton (42 N. J. L. 486), 55.
State v. Trenton (49 N. J. L. 339), 77,
79.
State v. Trenton (53 -N. J. L. 132, 20
Atl. Rep. 1076), 102, 193, .206.
State v. Trenton (54 N. J. L. 444, 24
Atl. Rep. 478), 60, 62.
State v. Trenton R. Co. (58 N. J. L.
666, 33 L. R. A. 129), 105.
State v. Trumpf (50 Wis. 103), 227.
State v. Tryon (39 Conn. 183), 195.
State v. Tucker (46 Ind. 355), 63.
State v. Tyler (14 Wash. 495, .45 Pac.
Rep. 31), 325.
State v. Wadham (64 Minn. 318, 67
N. W. Rep. 64), 224
State v. Wagner (34 Neb. 116, 15 L.
R. A. 740), 319.
State v. Walsen (17 Colo. 170), 255.
State v. Warner (4 Wash. 263, 17 L.
R. A. 263), 26, 42.
State v. Weatherby (45 Mo. 17), 321.
State v. Webber (107 N. C. 962, 22
Am. St. Rep. 920), 85, 194, 196.
State v. Webber (108 Ind. 81, 58 Am.
Rep. 30), 82.
State v. Weir (33 Iowa, 134, 11 Am.
Rep. 115), 54
State v. Welch (36 Conn. 215), 209.
State v. Wells (46 Iowa, 662), 131.
State v. West (42 Minn. 147), 196.
State v. Wheelock (95 Iowa, 577, 30
L. R A. 429), 91, 208.
State v. White (64 N. Y. 48), 206.
State v. Whitesides (30 S. C. 579, 3
L. R. A. 777), 209, 316, 321.
State v. Williams (99 Mo. 291, 12 S.
W. Rep. 905), 227.
State v. Williams (25 Minn. 340), 320.
State v. Wilson (12 Lea, Tenn., 246),
47.
State v. Withrow (108 Mo. 1), 322.
State v. Womack (4 Wash. 19), 82.
State v. Wood (49 N. J. L. 85, 7 Atl.
Rep. 286), 57.
State v. Woodbury (17 Nev. 337), 57.
State v. Woodin (56 Conn. 216), 87.
State v. Worth (95 N. C. 615), 182.
State v. Wright (80 Wis. 648), 130.
State v. Wright (54 N. J. L. 130, 23
Atl. Rep. 117), 58.
State v. Wrightson (56 N. J. L. 126,
22 L. R. A. 538), 319.
State v. Van Aucken (Iowa, 68 N. W.
Rep. 454), 238.
State v. Van Beek (87 Iowa, 569, 19
L. R. A. 622), 226.
State v. Village of Lambertson (37
Minn. 362), 324
State v. Vuhler (90 Mo. 560), 316.
State v. Young (30 Kan. 445), 19, 130.
State v. York Co. Com'rs (13 Neb. 57),
79.
State v. Zigler (32 N. J. L. 264), 182.
State Bank v. Gibbs (3 McCord, S. C.,
377), 3.
State Board v. Aberdeen (56 Miss.
518), 39.
State Board of Agri. v. Citizens' St.
Ry. Co. (47 Ind. 407, 17 Am. Rep.
702), 259. «
State Center v. Bartenstein (66 Iowa,
249), 91, 208,
State Railway Tax Cases (92 U. S.
575), 323.
State Reservation, Matter of (133
N. Y. 734), 129.
Stearns Co. v. St. Cloud, etc. (36
Minn. 425), 89.
Stebbins v. Jennings (10 Pick. 172),
19.
TABLE OF CASES CITED.
Ixxv
References are to pagct.
Stebbins v. Keene Township (55
Mich. 552), 300, 301.
Stebbins v. Mayor (38 Kan. 573, 16
Pac. Rep. 745), 181.
Steele v. Boston (126 Mass. 583), 299.
Steele v. Dunham (76 Wis. 393), 248.
Stein v. Bienville Water Supply Co.
(141 U. S. 67), 143.
Steines v. Franklin Co. (48 Mo. 167, 8
Am. Rep. 87), 161.
Stephen, Ex parte (114 CaL 278), 194.
Stephens v. Props, of Canal (12 Mass.
466), 123.
Stephlan v. Daniel (27 Ohio St. 527),
266.
Sterling's Appeal (111 Pa. St. 35), 106.
Sterling v. Merrill (124 111. 522), 304.
Steubenville v. Gulp (38 Ohio St. 18,
43 Am. Rep. 417), 237.
Stevens v. Carter (27 Oreg. 553, 35 L.
R. A. 343), 320.
Stevens v. Muskegon (69 N. W. Rep.
227), 277.
Stevenson v. Bay City (26 Mich. 44),
186.
Stewart v. Board of Police (25 Miss.
479), 125.
Stewart v. New Orleans (9 La. Ann.
461, 61 Am. Dec. 219), 280.
Stewart v. Palmer (74 N. Y. 183), 110,
125.
Stewart v. Polk Co. (30 Iowa, 9), 154.
Stickney v. Salem (3 Allen, 374), 304.
Stilling v. Thorp (54 Wis. 528), 293.
Still water v. Moor (Okla., 33 Pac.
Rep. 1024), 188.
Stinson v. Smith (8 Minn. 366), 109.
Stock v. Boston (149 Mass. 410), 288.
Stockdale v. Wayland School Dis-
trict (47 Mich. 226), 167.
Stockton v. Powell (29 Fla. 1, 15 L.
R, A. 42), 149, 225.
Stockton, etc. Ry. Co. v. Stockton (51
Cal. 328), 158.
Stoddard v. Saratoga Springs (127
X. Y. 261), 271, 312. " '
Stone v. Charlestown (114 Mass 214),
45.
Stone v. Mobile (57 Ala. 61), 324.
Story v. N. Y. Elev. R. Co. (90 N. Y.
122), 97, 105.
Stout v. Glen Ridge (58 N. J. L. 578,
35 Atl. Rep. 913), 5.
Stoutenburgh v. Hennick (129 U. S.
141V 18.
Stow v. Wyse (7 Conn. 214, 18 Am.
Dec. S9\ 220.
Stowers v. Postal Tel. & C. Co. (68
Miss. 559, 12 L. R, A. 864), 107.
Striker v. Kelley (7 Hill, N. Y., 9, 2
Denio, 323), 188.
Strosser v. Ft. Wayne (100 Ind. 443),
42.
Strout v. Pennell (74 Me. 262), 255.
Stubbs v. Lee (64 Me. 195, 18 Am, Rep.
251), 230.
Stuher v. Kern (44 N. J. L. 181, 43
Am. Rep. 353), 237.
Stuhr v. Hoboken (47 N. J. L, 147>,
188.
Sturtevant v. Liberty (46 Me. 457),
145.
Stuyvesant v. Mayor (7 Cow., N. Y.,
588), 184,
St Joe, etc. Ry..Co. v. Buchanan Co.
(39 Mo. 485), 154.
St. Johnsbury v. Thompson (59 Vt
300), 200.
St Joseph Tp. v. Rogers (16 Wall
644), 157, 163.
St. Louis v. Allen (13 Mo. 400), 23.
St. Louis v. Allen (53 Ma 44), lia
St. Louis v. Bell TeL Co. (96 Mo. 623,
9 Am. St. Rep. 370, 2 L. R. A.
278), 67, 69, 137.
St. Louis v. Buckner (44 Mo. 19), 71.
St. Louis v. Buffinger (19 Mo. 13), 195.
St. Louis v. Fitz (53 Ma 582), 85, 201.
St. Louis v. Foster (52 Mo. 313), 182,
188, 195.
St. Louis v. Green (70 Mo. 562), 204.
St Louis v. Know (6 Mo. App. 247),
208.
St Louis v. Russell (9 Mo. 508), 23.
St. Louis v. Russell (116 Ma 248, 20
L. R. A. 721), 70, 214.
St. Louis v. Shields (52 Mo. 351), 34
St Louis v. Shields (62 Mo. 247), 63.
St Louis V. St. Louis R. Ca (89 Mo.
44), 194, 206.
St Louis v. Webber (44 Ma 547), 84,
201, 203, 203, 209.
Ixxvi
TABLE OF CASES CITED.
References are to pages.
St. Louis Co. v. Griswold (58 Mo.
175), 81.
St. Louis Co. Ct. v. Sparks (10 Mo.
117, 45 Am. Dec. 355), 256.
St. Louis, etc. Co. v. Gill (54 Ark. 105,
11 L. R A. 452), 184.
St. Paul v. Byrnes (38 Minn. 176), 86.
St. Paul v. Colter (12 Minn. 41, 90
Am. Dec. 278), 74, 84, 190, 208.
St. Paul v. Gilfillan (36 Minn. 298),
88, 89.
St. Paul v. Laidler (2 Minn. 190, Gil.
159, 72 Am. Dec. 89), 68.
St. Paul v. Smith (27 Minn. 364), 204.
St. Paul v. Traeger (25 Minn. 248), 68,
91.
St. Paul G. L. Co. v. McCardy (62
Minn. 509), 138.
St. Paul, etc. Co. v. Minneapolis (35
Minn. 141), 122.
St. Paul Ry. Co., In re (34 Minn. 227),
121.
St. Vincent's Orphan Asylum v. Troy
(76 N. Y. 108, 32 Am. Rep. 286), 98.
Suchaneck v. State (45 Minn. 26), 131.
Suffield v. Hathaway (44 Conn. 521),
87.
Suffolk v. Parker (79 Va. 660, 52 Am.
Rep. 640), 286.
Suffolk Sav. Bank v. Boston (149
Mass. 364, 4 L. R. A. 516), 162.
Sullivan v. Gilroy (55 Hun, N. Y.,
285), 225.
Sullivan v. Helena (10 Mont. '134, 25
Pac. Rep. 94), 292.
Summers v. Davis County (103 Ind.
263), 284.
Summerville v. Pressley (33 S. C. 56,
8 L. R. A. 854), 85, 86.
Supervisors v. Rogers (7 Wall., U. S.,
175), 318.
Supervisors of Marshall County v.
Schenck (5 Wall., U. S., 781), 161.
Sutcliffe v. Board (147 U. S. 230), 168.
Sutherland v. Town of Goldsboro (96
N. C. 49), 158.
Sutro v. Pettit (74 CaL 332, 5 Am. St.
Rep. 442), 258.
Button's Hospital Case (10 Reports,
31a), 200.
Swan v. Buck (40 Miss. 268), 234
Swarth v. People (109 111. 621), 71, 214.
Swartout v. Michigan, etc. R. Co. (24
Mich. 394), 20.
Sweet v. Carver Co. (16 Minn. 106),
147.
Sweet v. Hulbert (51 Barb. 312), 154.'
Swift v. Falmouth (167 Mass. 115, 45
N. E. Rep. 184), 258.
Swift v. Topeka (43 Kan. 671, 8 L. R.
A. 772), 98, 204.
Swindell v. Moxey (143 Ind. 153, 42
N. E. Rep. 528), 185.
Swindell v. State (143 Ind. 153), 178,
320.
Sykes v. Columbus (55 Miss. 115), 151.
Sylvester Coal Co. v. St. Louis (130
Mo. 323, 51 Am. St. Rep. 556), 196,
197.
Symonds v. Clay County (71 111. 350),
285.
Syracuse W. Co. v. Syracuse (116 N.
Y. 167, 5 L. R. A. 546), 80, 140.
T.
Tacoma v. Tacoma L. & W. Co. (15
Wash. 499, 46 Pac. Rep. 1119), 133,
138.
Tacoma G. & E. Co. v. Tacoma (14
Wash. 288, 44 Pac. Rep. 655), 137.
Taft v. Pittsford (28 Vt. 286), 148.
Taggart v. Newport St. Ry. Co. (16
R. I. 668, 7 L. R. A. 205), 105.
Tainter v. Worcester (123 Mass. 311,
25 Am. Rep. 90), 281, 287.
Talbot v. New York & Harlem R R
Co. (151 N. Y. 155), 124, 128.
Talbot Co. v. Queen Anne Co. (50 Md.
245), 23.
Talbot Pav. Co. v. Detroit (67 N. W.
Rep. 979), 79.
Tallahassee v. Fortune (3 Fla. 19, 52
Am. Dec. 358), 292.
Tarkio v. Cook Co. (120 Mo. 1, 41 Am.
St. Rep. 678), 181, 182.
Tarney v. New York (12 Hun, 542),
270.
Tate v. Greenboro (114 N. C. 392, 24
L. R. A. 671), 70.
TABLE OF CASES CITED.
Ixxvii
References are to pages.
Tate v. St. Paul (56 Minn. 527), 310,
311.
Tatham v. Philadelphia (11 PhiL 276),
153.
Taunton v. Taylor (116 Mass. 254), 87.
Taylor v. Americus (39 Ga. 59), 324
Taylor v. Austin (52 Minn. 247), 312.
Taylor v. Bay City R Co. (80 Mich.
77), 67.
Taylor v. Carondelet (22 Ma 105), 195.
Taylor v. Com. of Newberne (2 Jones'
Eq. 141, 64 Am. Dec. 566), 18.
Taylor v. Lambertville (43 N. J. Eq.
112), 176.
Taylor v. Owensboro (98 Ky. 271),
279.
Taylor v. Palmer (31 CaL 241), 117.
Taylor v. Palmer (21 CaL 240), 191.
Taylor v. Phila. Bd. of Health (31 Pa.
St. 73, 72 Am. Dec. 724), 30.
Taylor v. Sullivan (45 Minn. 309, 11
L. R A. 272), 227.
Taylor v. Taylor (10 Minn. 107, GiL
" 81), 157.
Taylor v. Woburn (130 Mass. 494), 293.
Teass v. St. Albans (38 W. Va, 1, 19
L. R A. 802), 99.
Templeton v. Linn County (22 Oreg.
313, 15 L. R A. 730), 292.
Templeton v. Voshloe (72 Ind. 134, 37
Am. Rep. 150), 309.
Ten Eyck v. Canal Co. (18 N. J. L.
200), 2.
Terre Haute v. Lake (43 Ind. 480),
176.
Terrett v. Taylor (9 Cranch, 52), 29.
Terrill v. Taylor (9 Cranch, 43), 134
Territory v. Oklahoma (2 Okla. 158),
174*
Territory v. Smith (3 Minn. 240, GiL
164), 227.
Territory v. Stewart (1 Wash. 98. 8
L. R A. 106). 17.
Terry v. Milwaukee (15 Wis. 543), 146.
Terry v. Richmond (Va., 27 S. E. Rep.
429, 38 L. R A. 834), 275, 276, 313.
Texton v. B. & O. Ry. Co. (59 Md. 63,
43 Am. Rep. 340), 102.
Thayer v. Boston (19 Pick. 511), 272,
274
Theisen v. McDaniel (34 Fla. 440, 26
L. R A. 234), 199, 201.
Theobald v. Louisville, etc. Ry. Co.
(66 Miss. 279, 4 L. R A. 735),
104
Thomas, Re (53 Kan. 659, 37 Pac. Rep.
171), 181.
Thomas v. Board (5 Ind. 4), 63.
Thomas v. Boonville (61 Mo. 282), 71.
Thomas v. Burlington (69 Iowa, 140),
170, 172, 266.
Thomas v. Findley (6 Ohio C. C. 241),
283.
Thomas v. Gaines (35 Mich. 155), 114.
Thomas v. Leland (24 Wend. 65), 38,
39. 40.
Thomas v. Markman (Minn., 62 N.
W. Rep. 206), 251.
Thomas v. Mason (39 W. Va. 526, 26
L. R A. 727), 86, 317.
Thomas v. Port Huron (27 Mich. 320),
153, 263.
Thomas v. Richmond (12 WalL, U. S.,
349), 69, 148, 198.
Thompson v. Carroll (22 How., U. S.,
422), 19a
Thompson v. Jackson (93 Iowa, 376,
27 L. R A. 92), 249.
Thompson v. Lee Co. (3 WalL 327),
69, 153.
Thompson v. Moran (44 Mich. 602),
120.
Thompson v. Pacific R Co. (9 Wall.,
U. S., 579), 3.
Thompson v. Schermerhorn (6 N. Y.
92, 52 Am. Dec. 385), 70.
Thomson-Houston Elec. L. Co. v.
Newton (42 Fed. Rep. 723), 138.
Thorp v. Witham (65 Iowa, 566), 125.
Throckmorton v. Price (28 Tex. 609),
251.
Tice v. Bay City (84 Mich. 461, 47 N.
' W. Rep. 1062), 301.
Tiedt v. Carstensen (61 Iowa, 334),
129.
Tie Lay, In re (26 Fed. Rep. 611), 199.
Tierney v. Dodge (9 Minn. 156), 132.
Tiger v. Morris (42 N. J. L. 631), 62, 65.
Tillinghast v. Merrill (151 N. Y. 135,
34 L. R A. 678), 254
Ixxviii
TABLE OF CASES CITED.
References are to pages.
Tillmon v. Otter (93 Ky. 600, 29 L. R.
A. 110), 221.
Times Pub. Co. v. Everett (9 Wash.
518), 78.
Tindley v. Salem (137 Mass. 171), 268.
Tipton v. Norman (72 Mo. 380), 178.
Tisdale v. Town of Minonk (46 111. 9),
190.
Tissot v. Great So. Tel. Co. (39 La.
Ann. 996, 4 Am. St. Rep. 248), 88.
Title G. & T. Co. v. Chicago (162 111.
505), 110, 114
Toledo v. Cone (41 Ohio St. 149), 287.
Toledo, etc. Ry. Co. v. Jacksonville
(67 111. 37, 16 Am. Rep. 611), 206.
Tomlin v. Dubuque, etc. Ry. Co. (32
Iowa, 106, 7 Am. Rep. 126), 124.
Tomlinson v. Board of Equalization
(88 Tenn. 1, 6 L. R. A. 207), 324.
Tomlinson v. Indianapolis (144 Ind.
142, 36 L. R A. 413), 90, 92.
Topeka v. Boutwell (53 Kan. 20, 27
L. R. A. 593), 211.
Topeka v. Tuttle (5 Kan, 186), 292.
Topeka Board, etc. v. Welch (51 Kan.
797), 82.
Torbush v. Norwich (38 Conn. 225, 9
Am. Rep. 395), 283.
Torrey v. Millbury (21 Pick. 64), 264.
Toutloff v. Green Bay (91 Wis. 490),
300.
Town of Coloma v. Eaves (92 U. S.
484), 164.
Town of Douglass v. Niantic Sav-
ings Bank (97 111. 228), 160.
Town of Essex v. Day (53 Conn. 483,
11 Am. & Eng. Corp. Cas. 265),
161.
Town of Kosciusko v. Stomberg (68
Miss. 469, 9 So. Rep. 297), 210.
Town of Venice v. Murdock (92 U. S.
494), 165.
Townsend, In re (39 N. Y. 171), 155.
Train v. Boston, etc. (144 Mass. 523,
59 Am. Rep. 113), 86.
Trainor v. Board of Auditors (87
Mich. 162, 15 L. R. A.' 95), 223, 243,
244, 245.
Transportation Co. v. Chicago (99
U. S. 635), 124, 268.
Travelers' Ins. Co. v. Oswego (59
Fed. Rep. 58, 7 C. C. A. 69), 223.
Treadway v. Schnauber (1 Dak. 233),
23.
Tread well v. Hancock Co. (11 Ohio
St. 183), 159.
Trento v. Clayton (50 Mo. 541), 214
Trescott v. Moan (50 Me. 347), 248.
Trustees v. Milwaukee, etc. Co. (77
Wis. 158), 101.
Trustees v. People (87 Iowa, 305), 83.
Tryon v. Pingree (Mich., 1897, 70 N.
W. Rep. 905, 37 L. R. A. 222), 240.
Tuller v. Redding (16 Misc. Rep. 634),
98.
Turner v. Fish (19 Nev. 295), 57.
Turner v. Forsyth (78 Ga. 683), 322.
Turner v. Newburgh (109 N. Y. 301),
270.
Turner v. Nye (154 Mass. 578, 14 L. R.
A. 487), 121.
Turner v. People's Ferry (21 Fed.
Rep. 90), 135.
Tuttel v. Everett (51 Miss. 27), 266.
Tuttle, Ex parte (91 CaL 589), 84, 215.
Tweighton v. San Francisco (42 Cal.
446), 40.
Twilley v. Perkins (77 Md. 252), 98.
Tyler v. Beacher (44 Vt. 648, 8 Am.
Rep. 398), 154.
Tyler v. Hudson (147 Mass. 609), 121.
Tyrrell v. Andrew Co. (44 Mo. 309),
251.
U.
Underbill v. Calhoun (63 Ala. 216),
326.
Underbill v. Manchester (45 N. H.
214), 279.
Union Bank v. Commissioners ofOx-
ford (119 N. C. 214), 318.
Union Ferry Works, In re (98 N. Y.
139), 81, 120.
Union Pacific Ry. Co. v. Dodge
County (98 U. S. 541), 265.
Union Pacific Ry. Co. v. Montgomery
(49 Neb. 429, 68 N. W. Rep. 619),
191.
United States v. Addison (6 Wall.
291), 237.
TABLE OF CASES CITED.
Lsxix
References are to pages.
United States v. Alexander (46 Fed.
Rep. 728), 255.
United States v. Baltimore & Ohio
R Co. (17 Wall, U. S., 322), 40,
325.
United States v. Behan (110 U. S.
338), 76.
United States v. Brindle (110 U. S.
688), 228.
United States v. Clough (55 Fed. Rep.
373, 5 C. C. A. 140), 235.
United States v. Dashiel (71 U. S.
182), 254.
United States v. Green (53 Fed. Rep,
709). 242.
United States v. Macon County Court
(99 U. S. 582), 318.
United States v. Morgan (52 U. S.
151), 254.
United States v. New Orleans (98
U. S. 381), 107.
United States v. Prescott (44 U. S.
589), 254
United States v. Thomas (82 U. S.
337), 254.
United States Bank v. Dandridge (12
Wheat. 64), 20.
V.
Valentine v. St. Paul (34 Minn. 446),
266.
Valley Co. v. McLean (49 U. S. App.
131, 79 Fed. Rep. 728), 158, 168.
Valparaiso v. Gardner (97 Ind. 1, 49
Am. Rep. 416), 79, 80, 174.
Van Arsdale v. Hazard (3 Hill, N. Y.,
243), 242.
Van Baalen v. People (40 Mich. 258),
90.
Van Buren, Petition of (79 N. Y. 384),
112.
Vance v. Little Rock (30 Ark. 435),
198.
Vanderbilt v. Adams (7 Cow. 349),
2ia
Vanderslice v. Philadelphia (103 Pa.
St. 102), 313.
Vandines' Case (6 Pick. 187), 195.
Van Giesen v. Bloomfield (47 N. J. L.
422), 57.
Van Hoffman v. Quincy (4 "Wall. 535),
34, 35.
Van Hook v. Selma (70 Ala. 361), 14,
203.
Van Home v. Des Moines (63 Iowa,
447, 55 Am. Rep. 750), 275, 281.
Van Pelt v. Davenport (43 Iowa, 308),
309.
Van Riper v. Parsons (40 N. J. L. 123),
55, 57.
Van Schaick v. Sigel (60 How. Pr.
122), 250.
Varner v. Martin (21 W. Va. 538), 121.
Varner v. Nobleborough (2 Me. 121,
11 Am. Dec. 48), 146.
Vassar v. George (47 Miss. 713), 40.
Vaux v. Jeffrun (2 Dyer, 114), 237.
Veale v. Boston (135 Mass. 187), 293.
Vegelahn v. Guntner (167 Mass. 92),
197.
Veneman v. Jones (118 Ind. 41, 20
N. E. Rep. 644), 204
Vestal v. Little Rock (54 Ark 321,
11 L, R. A. 778), 42, 43.
Vickery v. Chase (50 Ind. 461), 63.
Village of Carterville v. Cook (129
111. 152), 297.
Village of Ponca v. Crawford (23
Neb. 662, 8 Am. St. Rep. 144), 296,
298.
Village of Rankin v. Smith (63 EL
App. 522), 294
Village of Ravenna v. Pennsylvania
Co. (45 Ohio St. 118, 12 N. E. Rep.
445), 205.
Village of St. Johnsbury v. Thomson
(59 Vt. 301), 195.
Vincennes v. City G. L. etc. Co. (133
Ind. 114), 79, 80.
Vincennes University v. Indiana (14
How., U. S., 268), 319.
Virginia v. Plummer (65 I1L App.
419), 302.
Virginia, etc. Ry. Co. v. Lyon Co. (6
Nev. 68), 158, 159.
Vidal v. Girard (2 How., U. S., 127),
• 26.
Voegthy v. Pittsburgh, etc. Ry. Co.
(2 Grant's Cas., Pa., 243), 126.
Vogel v. State (107 Ind. 374), 227.
Volk v. Newark (47 N. J. L. 117), 199.
Ixxx
TABLE OF CASES CITED.
References are to pages.
Wabash v. Pearson (120 Ind. 426),
304.
Wabash R. Co. v. Defiance (167 U. S.
88), 96, 99, 100.
Wade v. Oakmont (165 Pa. St. 479),
172, 174.
Waggoner v. Point Pleasant (42 W.
Va, 798), 299.
Wagner v. Rock Island (146 111. 139,
21 L. R. A. 519), 24, 28.
Wagner v. Town of Garrett (118 Ind.
114), 209.
Wahn v. Philadelphia (99 Pa. St. 330),
188.
Wahoo, City of, v. Reeder (27 Neb.
770, 43 N. W. Rep. 1145), 5.
Wakefield v. Newell (12 R. I. 75), 308.
Wales v. Muscatine (4 Iowa, 302), 326.
Walker v. Cincinnati (21 Ohio St. 14,
8 Am. Rep. 24), 51, 54.
Walker v. City of Aurora (140 111.
402, 39 N. E. Rep. 741), 199.
Walker v. Cook (129 Mass. 577), 327.
Wall v. Trumbull (16 Mich. 228), 249.
Walla Walla Water Co. v. City of
Walla Walla (60 Fed. Rep. 957),
175.
Wallace v. Lawyer (54 Ind. 501, 23
Am. Rep. 661), 326.
Wallace v. Trustees (84 N. C. 164), 23.
Walnut Tp. v. Wade (103 U. S. 683),
157.
Walsh v. New York (41 Hun, 299),
270.
Walton v. Missouri (91 U. S. 275), 91.
Wampler v. State (Ind., 38 L. R. A.
829), 320.
Wang Hane, In re (108 Cal. 680, 49
Am. St. Rep. 138), 194
Ward v. Colfax Co. (10 Neb. 293, 35
Am. Rep. 477), 254.
Ward v. Greenville (8 Bax., Tenn.,
288), 210.
Ward v. Hartford County (12 Conn.
404), 315.
Ward v. Marshall (96 Cal. 153, 30
Pac. Rep. 113), 2o7.
Warden v. New Bedford (131 Mass.
23, 41 Am. Rep. 185), 286.
Ware v. Percival (61 Me. 391), 264.
Warner v. Hoagland (51 N. J. L. 62),
59.
Warnock v. Lafayette (4 La. Ann.
419), 223.
Warren v. Charlestown (2 Gray, 84);
11.
Warren v. Evansville (106 Ind. 104),
65.
Warren v. Henley (31 Iowa, 31), 115.
Warren v. Westbrook Mfg. Co. (86
Me. 32, 26 L. R, A. 284), 308.
Warren v. Whitney (24 Me. 561, 41
Am. Dec. 406), 37.
Warthman v. Philadelphia (33 Pa, St.
202), 92, 93.
Washburn v. Oshkosh (60 Wis. 453),
41.
Washington Ave., In re (69 Pa. St.
352), 110, 114, 152.
Washington Street, In re (132 Pa. St.
257, 7 L. R. A. 193), 55.
Waterbury v. Commissioners (10
Mont. 515, 24 Am. St. Rep. 67),
326.
Water Co. v. Hamilton (81 Ky. 517), 4.
Waterer v. Freeman (Hob. 366), 248.
Waterloo Mfg. Co. v. Shannahan (128
N. Y. 345). 121.
Waters v. Leach (3 Ark. 110), 212.
Watertown v. Cady (20 Wis. 501), 5.
Watertown v. Mayo (109 Mass. 315),
86.
Watson v. Carey (6 Utah, 150), 182.
Watson v. N. Y. etc. Ry. Co. (47 N. Y.
157), 125.
Wayne County Auditor v. Benoit (20
Mich. 176), 237.
Weaver v. Devendorf (3 Den., N. Y.,
117), 248. »
Weaver v. Mississippi & R. R. Boom
Co. (28 Minn. 534), 311.
Webb's Case (8 Coke, 45), 237.
Webb v. Demopolis (95 Ala. 116, 21
L. R. A. 62), 135.
Webb v. Mayor (64 How. Pr. 10), '28.
Weed v. Ballston Spa (76 N. Y. 329),
298.
Weed v. Boston (126 Mass. 443), 74.
Weeks v. Milwaukee (10 Wis. 258),
115.
TABLE OF CASES CITED.
Ixxxi
References are to pages.
Weese v. Barker (7 Colo. 181), 250.
Weil v. Kerfield (54 Cal. Ill), 184.
Weil v. Record (24 X. J. Eq. 169), 210.
Weinman v. Pass. R Co. (118 Pa. St
192), 59.
Weis v. Madison (75 Ind. 241), 309,
311.
Weismer v. Douglas (64 N. Y. 91, 21
Am. Rep, 586), 40, 154.
Weiss v. Edgerton Board (76 Wis.
177, 7 L. R A. 330), 83.
Weitz v. Independent Dist (79 Iowa,
423), 74, 77.
Welch v. Rutland (56 Vt, 228,48 Am.
Rep. 762), 280, 252, 283, 286, 291,
307.
Welker v. Porter (18 Ohio St 85), 47,
59, 177.
Weller v. St. Paul (Minn., 12 Am. St
Rep. 754), 312,
Wellington v. Gregson (31 Kan. 99,
47 Am. Rep. 482), 101.
Wellnian v. Board (84 Mich. 558, 47
X. W. Rep. 559), 245.
Wells, Ex parte (21 Fla. 280), 57.
Wells v. Buffalo (SO N. Y. 253), 265.
Wells v. Burnham (20 Wis. 119), 74.
Wells v. Salina (119 N. Y. 280, 7 L.
R A. 799), 81.
Wells v. Somerset, etc. R Co. (47 Me.
345), 1-20.
Wellsborough v. New York, etc, Ry.
Co. (76 X. Y. 182), 157.
Welsh v. Boston (126 Mass. 442), 84
Welsh v. St. Louis (73 Mo. 71), 313.
Welter v. St Paul (40 Minn. 460, 12
Am. St. Rep. 752), 292.
Welton v. Dickson (38 Xeb. 767, 32
L. R A. 496), 121.
Wesch v. Common Council (Mich.,
1895, 64 N. W. Rep. 1051), 238.
Wesson v. Collins (72 Miss. 844, 18
So. Rep. 360, 917), 203.
Wesson v. Saline Co. (34 U. & App.
680, 73 Fed. Rep. 917), 1.67.
West v. Lynn (110 Mass. 514), 302.
West berg v. Kansas City (64 Ma
493), 245.
West Chicago Park Com'rs v. Mc-
Mullen (134 111. 170, 25 X. E. Rep.
676), 38, m
Westerly Nat Works Co. v. Westerly
(80 Fed. Rep. 611), 136, 141.
Western R Co. v. Alabama, etc, R
Co. (17 L. R A. 474, 96 Ala. 272),
106.
Western Reserve College v. Cleve-
land (12 Ohio St 375), 278.
Western Sav. F. Society v. Philadel-
phia (31 Pa. St 183, 72 Am. Dec.
730), 139.
Western Savings Society v. Phila-
delphia (31 Pa. St 175), 287.
Western Union TeL Co. v. Burling-
ton, etc. R Co. (11 Fed. Rep. 1),
262.
Western Union Tel. Co. v. Williams
(86 Va, 696, 8 L. R A. 429), 107.
Westfield v. Mayo (122 Mass. 100, 23
Am. Rep. 292), 300.
West Jersey R Co. v. Camden & W.
R Co. (52 N. J. 31, 29 AtL Rep.
423), 105.
Westlake v. St Louis (77 Ma 47), 266.
Weston v. Syracuse (17 N. Y. 110), 174
West Plains Tp. v. Sage (32 U. S.
App. 725, 69 Fed. Rep. 943), 150.
Westport v. Kansas City (103 Ma
141), 42,
West River Bridge Ca v. Dix (6 How.,
U. S., 507), 120.
Weymouth v. New Orleans (43 La.
Ann. 244), 286.
Wharf Case (3 Bland, Ch. 361), 135.
Wheeler v. Cincinnati (19 Ohio St
19, 2 Am. Rep. 358), 280.
Wheeler v. Philadelphia (77 Pa. St
338), 55, 56, 57.
Wheeler v. Plymouth (116 Ind. 158,
9 Am. St. Rep. 837, 18 N. E. Rep.
532), 277, 298.
Wheeler v. Wayne (31 m. App. 598,
24 N. E. Rep. 625X 74
Whidden v. Drake (5 N. H. 13), 326.
White v. Kent (11 Ohio St. 550), 203.
White v. Marshfield (48 Vt 20), 284
White v. Meadville (177 Pa. St 643,
• 34 L. R A. 567), 141.
White v. People (94 I1L 604), 111, 114
White v. Polk (17 Iowa, 413), 239.
White v. State (Ga., 1897, 37 L. R A.
642), 206.
Ixxxii
TABLE OF CASES CITED.
References are to pages.
Whitfield v. Meridian (66 Miss. 570,
14 Am. St. Rep. 296), 292, 298.
Whitfield v. Paris (84 Tex. 431, 15 L.
R A. 783), 280, 284.
Whiting v. Sheboygan, etc. Ry. Co.
(25 Wis. 167, 3 Am. Rep. 30), 153,
154.
Whiting v. Townsend (57 Cal. 515),
114.
Whiting v. West Point (88 Va. 905,
15 L. R A. 861), 74, 107, 108.
Whitney v. Port Huron (88 Mich. 268,
26 Am. St. Rep. 291), 187.
Whitney v. Town of Ticonderoga
(127 N. Y. 40, 27 N. E. Rep. 403),
296.
Whittaker v. Tuolumne County (96
Cal. 100, 30 Pac. Rep. 1016), 315.
Whitten v. Covington (43 Ga. 421),
214.
Whitwell, Ex parte (93 Cal. 73, 19 L.
R A. 727), 84
Wiggin v. St. Louis (135 Mo. 558), 294.
Wilcocks, Ex parte (7 Cow. 403), 223.
Wilcox v. Chicago (107 III 337, 47
Am. Rep. 434), 282, 283.
Wilcox v. Hemings (58 Wis. 144), 75.
Wild v. Deig (43 Ind. 455), 121.
Wild v. Paterson (47 N. J. L. 406), 307.
Wilde v. New Orleans (12 La. Ann.
15), 274.
Wiley v. Blufton (111 Ind. 152), 63, 65.
Wiley v. Greenfield (30 Me. 452), 148.
Wilkins v. Rutland (61 Vt. 336), 289,
291.
Wilkins v. St. Paul (16 Minn. 271),
125.
Wilkinson v. Saginaw (Mich., 1897,
70 N. W. Rep. 142), 236.
Will v. Village of Mendon (Mich., 66
N. W. Rep. 588), 293.
Willard's Appeal (4 R L 595), 245.
Willard v. Presbury (14 Wall. 676),
111.
Willett v. Young (82 Iowa, 292, 11 L.
R A. 115), 247.
Willey v. Alleghany City (118 Pa. St.
490), 287.
Williams' Appeal (72 Pa. St. 215), 35.
Williams v. Boynton (147 N. Y. 426,
42.N. W. Rep. 184), 232.
Williams v. Brewster (148 Mass. 256),
243.
Williams v. Com. (4 B. Mon., Ky.,
146), 132.
Williams v. Commack (27 Minn. 209),
112.
Williams v. Nashville (89 Tenn. 487,
15 S. W. Rep. 364), 47.
Williams v. New York Ferry Co. (105
N. Y. 419), 135.
Williams v. Pittsburg (83 Pa. St. 71),
125.
Williams v. School District (37 Vt.
271), 121.
Williams v. State (112 Ala. 688), 131.
Williamson v. Keokuk (44 Iowa, 88),
150, 160.
Williamson v. Lacey (86 Me. 80, 25
L. R. A. 506), 249.
Williamson v. New Orleans (130 U. S.
190), 108.
Williamsport v. Com. (84 Pa. St. 487),
5, 149.
Willis v. Erie L. & T. Co. (37 Minn.
347), 107.
Wilmington v. Von Degrift (29 Atl.
Rep. 1047, 25 L. R A. 538), 277, 299. .
Wilson, In re (32 Minn. 145), 209, 214,
324.
Wilson v. Board (133 111. 143, 27 N. E.
Rep. 209), 47, 63.
Wilson v. Dullan (53 Mich. 392), 244.
Wilson v. Granby (47 Conn. 59), 304.
Wilson v. Jefferson County (13 Iowa,
181), 293.
Wilson v. People, etc. (19 Colo. 199,
22 L. R A. 449), 255.
Wilson v. Rochester (180 Pa. St. 509),
141.
Wilson v. School District (32 N.*H.
118), 7.
Wilson v. White (71 Ga. 506, 51 Am.
Rep. 269), 295.
Wilson Co. v. First Nat Bank (103
U. S. 770), 159.
Winbigler v. Los Angeles (45 Cal. 3G),
291.
Winchester & L. T. Co. v. Croxton
(98 Ky. 739, 33 L. R A. 177), 137.
Windsor v. McVeigh (93 U. S. 274),
125.
TABLE OF CASES CITED.
Ixxxiil
References are to pages.
Winn v. Rutland (52 Vt 481), 3ia
Winona v. Cowdry (93 U. S. 612), 159.
Winona v. Thompson (24 Minn. 199),
159.
Winona v. Winona School District
(40 Minn. 13, 13 L. R A. 4-5, 12
Am. St. Rep. 687), 41, 44, 45.
Winona & St P. Ry. Co. v. Water-
town (1 S. Dak. 46, 44 N. W. Rep.
1072), 115.
Winspear v. Holman (37 Iowa, 542),
5, 6, 7.
Winter v. Henry County (61 Iowa,
684), 270.
Wirth v. Wilmington (68 N. C. 24),
193.
Wisconsin Keeley Inst v. Milwaukee
Co. (36 LL R. A. 53), 84, 95, 108, 153.
Wisconsin Water Co. v. Winans (85
Wis. 26, 20 L. R. A. 662), 121.
Wistar v. Philadelphia (80 Pa. St. 505),
111.
Witham v. Portland (72 Me. 539), 301.
Wixon v. Newport (13 R L 454), 291,
306.
Wolcott v. Wells (21 Nev. 47, 37 Am.
St Rep. 478), 256.
Wolf, Ex parte (14 Neb. 24), 209.
Wolff v. New Orleans (103 U. S. 358),
35.
Wong Hane, In re (108 CaL 680, 49
Am. St Rep. 138). 194
Wood v. Brooklyn (14 Barb., N. Y.,
425), 199.
Wood v. Varnum (S3 CaL 46), 245.
Woodard v. Brien (14 Lea, Tenn., 520),
60.
Woodhull v. New York (150 N. Y.
450), 279.
Woodruff v. Stewart (63 Ala, 208), 186.
Woonsocket, etc. Ry. Co. v. Sherman
(8 R L 564), 158.
Wooster v. Mullins (64 Conn. 340, 25
L. R A. 694), 239.
Worcester Nat Bank v. Cheney (87
m. 602), 250.
Worcester Nat Bank v. Cheney (94
111. 430), 55, 59.
Worden v. New Bedford (131 Mass.
23), 306.
Worley v. Columbia (88 Ma 106), 271.
Worth v. Springfield (78 Mo. 103), 186.
Wragg v. Penn Tp. (94 IlL 23), 196.
Wray v. Pittsburgh (46 Pa. St 365),
IlL
Wright v. Boston (9 Cush. 233), 112,
Wright v. Defrees (8 Ind. 298), 19&
Wright v. Nagle (101 U. & 791), 81.
Wrought Iron Bridge Co. v. Town of
Attica (119 N. Y. 204), 39.
Wullenwaber v. Dunigan (30 Neb.
877, 13 L. R A. 811), 153.
Wurts v. Hoagland (114 U. S. 606),
125.
Wyoming Coal Co. v. Price (81 Pa.
St 156;, 120.
Y.
Yarn old v. City of Lawrence (15
Kan. 126), 77.
Yates v. Lansing (5 Johns. 282, 9
Johns. 395, 6 Am. Dec. 290X 248.
Yates v. Milwaukee (10 Wall 497), 88.
Yesler v. Seattle j[l Wash. 308), 152.
Yick Wo v. Hopkins (118 U. S. 369),
85, 199, 214. 216.
York Co. v. Watson (15 S. C. 1, 40
Am. Rep. 675), 255.
Yorks v. City of St Paul (62 Minn.
250, 64 N. W. Rep. 565), 236.
Young v. Charleston (20 S. C. 116, 47
Am. Rep. 827), 291, 292.
Young v. Clarendon Tp. (132 U. S.
340), 149, 150.
Young v. St Louis (47 Mo. 492), 184,
Youngblood v. Sexton (32 Mich. 406,
2 Am. Rep. 65), 323.
Youngs v. Hall (9 Nev. 212), 33, 62.
z.
Zable v. Louisville Orphan Asylum
(92 Ky. 89, 13 L. R A. 668), 71, 116.
Zanesville v. Fannan (53 Ohio St
605, 53 Am. St Rep. 664), 293. 300.
Zaume v. Mound City (103 IlL 552),
201.
Zeigler v. Gaddis (44 N. J. L. 365), 60.
Zeiler v. Central Ry. Co. (84 Md. 304,
34 L. R A. 469), 184, 223.
Zottman v. San Francisco (20 CaL
96), 67, 69, 74, 177, 179.
PUBLIC CORPORATIONS.
CHAPTEE I.
INTRODUCTORY.
DEFINITION, CLASSIFICATION AND HISTOET.
§ 1. In general.
2. Different kinds of corporations.
3. Classification of public corpora-
tions.
4 School districts.
5. Distribution of powers and du-
ties.
§ 6. The county — Its organization
and functions.
7. The township.
8. The town meeting.
9. The township elsewhere than in
New England.
10. The English municipality.
11. The American municipality.
§ 1. In general. — The people residing within the territorial
limits of a state constitute a public body, organized for the pur-
pose of self-government. The powers of government are dis-
tributed by the organic law among the three departments,
which take their names from the nature of the powers dele-
gated to each. In order that these powers may be executed
with the least confusion and expense, it has been found advis-
able to subdivide the territory of the state, and to create the
people resident within these subdivisions into artificial persons
or corporations, charging them with the execution and admin-
istration of certain of the functions of the state. When by
reason of local conditions, such as a congestion of population,
special laws and methods of administration are required, local
corporations have been created, to which are delegated certain
powers, and upon which is conferred the privilege of conduct-
ing the affairs peculiar to that locality. They differ from the
ordinary territorial subdivisions in the possession of these spe-
cial powers and franchises, which are granted for the benefit
of the people of that particular locality, as distinguished from
the people of the state at large of which they form a part.
Many of these bodies are very old, and have grown out of con-
1
2 INTRODUCTORY. [§ 2.
ditions which have long since passed away. The state has
confirmed their ancient privileges, and in addition has imposed
upon them many duties in connection with the work of public
administration. The common form of public corporation in
this country is a distinct creation by the state, and is provided
for in the constitution of the state. Ordinarily, they are in-
separably connected with a portion of the territory of the state;
but the state may, and often does, create corporations for public
purposes, without reference to territory.
§ 2. Different kinds of corporations. — These corporations
are literally created by the state for its own purposes, without
reference to the wishes of the people who reside within the ter-
ritory. It also grants to individuals the right or franchise of
being a corporation for the purpose of advancing their individ-
ual interests. The difference between the two kinds of corpo-
rations is apparent. The one is public, the other private. The
former is created by the state on its own initiative, as an aid
in the work of public administration and the government of
the people of the state. It consents to or authorizes the crea-
tion of the other for the purpose of enabling the individuals to
more advantageously conduct their private business. They are
both corporations as they are legal entities or artificial persons,
endowed with certain powers in common, but having different
objects, and possessed of different powers. Private corporations
are the result of contract, while public corporations are invol-
untary ; and there is no contractual relation between the mem-
bers or between the members and the state.1
1 Dean v. Davis, 51 Cal. 406; People founded upon the principle that they
v. Morris, 13 Wend. 825,327; Bennett's will promote the interest or conven-
Appeal, 65 Pa. St. 242. The supreme ience of the public. A bank is a
court of New Jersey in Ten Eyck v. private corporation, yet it is, in the
Canal Co., 18 N. J. L. 200, said: "Pub- eye of the law, designed for puMic
lie corporations are political corpora- benefit. A turnpike or a canal com-
tions, or such as are formed wholly pany is a private company, yet the
for public purposes, and the whole public have an interest in the use
interest of which is in the public, of their works, subject to such tolls
The fact of the public having an in and restrictions as the charter has
terest in the works or the property imposed. The interest, therefore,
or the object of a corporation does which the public may have in the
not make it a public corporation, property or in the objects of a cor-
All corporations, whether public or poration, whether direct or inci-
private, are, in contemplation of law, dental (unless it has the whole inter-
§ 2.] DEFINITION, CLASSIFICATION AND HISTORY. 3
If the corporation was created for the benefit of the incor-
porators or members, it is a private corporation, although, as
we shall hereafter see, the nature of the business in which it
proposes to engage may be such as to justify the state in exer-
cising over it some of the powers ordinarily exercised only over
public corporations. If, however, it was created for public,
political purposes, with the primary object of aiding in the
work of government, it is a public corporation, notwithstand-
ing the fact that it may involve some private interests. Such
organizations as cities, towns, villages, counties and townships
are clearly public corporations.
The fact that the state has an interest in a corporation does
not make such corporation public,1 nor does the fact that a cor-
poration derives a part of its support from the state 2 or is em-
ployed in the service of the state.* The rule is that, " if the
whole interest does not belong to the government, or if the cor-
poration is not created for the administration of political or
municipal power, it is a private corporation." 4
An attempt has been made to create a third class of corpora-
tions under the name of gua-si-publio corporations, and to in-
clude therein such as are organized for the primary benefit of
the members, but are engaged in enterprises in which the pub-
lic interests are directly involved, such as railway and ware-
house companies.5 But this classification has not been generally
accepted. It is the use and not the corporation which is of a
public nature. And it is an old principle of the law that, when
" private property is affected with a public interest, it ceases
est), does not determine its character 205; Alabama R. Co. v. Kidd, 29 Ala.
as a public or private corporation." 221; In re New York, etc. R. Co. v.
Approved, Hanson v. Vernon, 27 Metropolitan Gaslight Co., 63 X. Y.
Iowa, 23, 53. 326; Bailey v. Mayor, 3 Hill (X. Y.),
iBank of United States v. Plant- 531; Directors v. Houston, 71 I1L
ers' Bank, 9 Wheat (U. S.) 904. 318; Miners' Bank v. United States,
2 Cleveland v. Stewart, 3 Ga. 28a 1 Greene (Iowa), 553; State Bank v.
3 Thompson v. Pacific R. Co., 9 Gibbs, 3 McCord (S. CL), 377. Becom-
"WalL (U. S.) 579. ing owner or stockholder, the state
4 Beach, Pub. Corp., § 3. Citing descends from its sovereign dignity
Bundle v. Delaware, etc; Canal, 1 to individuality so far as to place it
Wall Jr. 275-290; Vincennes Uni- on an even footing of legal Lability
versity v. Indiana, 14 How. (U. S.) with other corporations of like char-
268; Bank of United States v. Plant- acter and purposes.
ers' Bank, 9 Wheat. (U. S.) 907; Bona- 5 Miners' Ditch Co. v. Zellerbach,
parte v. Camden, etc. R. Co., 1 Bald. 37 CaL 54&
4 INTKODUOTOKY. [§ 3.
to be juris privati only;"1 or, as stated in a modern decision,
when a person devotes his property " to a use in which the pub-
lic has an interest, he, in effect, grants to the public an interest
in that use, and must submit to be controlled by the public for
the common good to the extent of the interest he has created.
He may withdraw his grant by discontinuing the use, but, so
long as he maintains the use, he must submit to the control."2
Corporations which have received aid from the government
for public purposes are sometimes classed as public corpora-
tions, but they are private corporations charged with public
duties ; and, in order that they may properly perform such du-
ties, the state grants to them certain privileges and exemptions.
Thus, the property of such a corporation which is necessary to
enable it to perform the public duties with which it is charged
cannot be seized and sold to satisfy an ordinary judgment.3
Such bodies are what the supreme court of California4 has
designated as " corporations technicall}7 private, but of a quasi-
public character, having in view some public enterprise in which
the public interests are involved."
§ 3. Classification of pullic corporations, — Public corpora-
tions fall into two classes: The first are known as municipal
corporations, and what remains may for want of a better name
be grouped under the head of public ^incorporations. Dis-
tinguishing features of municipal corporations are the posses-
sion of certain powers of legislation, and of certain powers and
privileges, which are to be exercised for the particular benefit
of the inhabitants of the municipality.
The corporation includes both the territory and the inhabit-
1 Lord Hale in De Portibus Maris, 3 Overton Bridge Co. v. Means, 33
1 Hargrave's Law Tracts, 78. Neb. 857, 51 N. W. Rep. 240, 29 Am.
2Munn v. Illinois, 94 U. S. 113. St. Rep. 514; Gooch v. McGee, 83
This is the doctrine of the " Granger N. C. 59; Baxter v. Turnpike Co.? 10
Cases" and "Railroad Commission Lea (Tenn.), 488; Water Co. v. Hamil-
Cases." Chicago, etc. R. Co. v. Iowa, ton, 81 Ky. 517; Palestine v. Barnes,
94 U.S. 155(1876); Peisk v. Chicago, 50 Tex. 538; Gue v. Canal Co., 24
etc., R Co., 94 U. S. 164-178; Rail- How. (U. S.) 257; Seymour v. Turn-
road Commission Cases, 116 U. S. 307 pike Co., 10 Ohio, 477; Foster .T.
(1886); Hockett v. State, 105 Ind. 250 Fowler, 60 Pa. St. 27.See§352,in/ra.
(Tel. Co.); State v. Ironton Gas Co., * Miners' Ditch Co. v. Zellerbach,
37 Ohio St. 45 (Gas and Water 37 CaL 54a
Cos.); Spring Valley Water Works
v. Schottler, 110 U. S. 347.
§3-]
DEFINITION, CLASSIFICATION AND HISTORY.
ants residing therein;1 and may be defined as "the incorpora-
tion by the authority of the government of the inhabitants of a
particular place or district, and authorizing them in their cor-
porate capacity to exercise subordinate specified powers of
legislation and regulation with respect to their local and in-
ternal concerns."2
The word " municipal " is sometimes used in statutes as syn-
onymous with public and political, thus including all the gov-
ernmental subdivisions of the state. Thus, counties have been
held to be municipal corporations for the purpose of bringing
them within the provisions of certain statutes,3 although they
are not properly municipal corporations.4
i Kelly v. Pittsburgh, 104 U. S. 79;
Galesburg v. Hawkinson, 75 111. 156;
People v. Bennett, 29 Mich. 451 ; Low-
ber v. Mayor, 5 Abb. Pr. (N. Y.) 325;
Clarke v. Rochester, 24 Barb. (N. Y.)
446.
21 DilL Mun. Corp., sec, 20. The
fundamental idea of a municipal
corporation is " the investing of the
people of a place with the local gov-
ernment thereof." Cuddon v. East-
wick, 1 Salk. 143, quoted with ap-
proval in People v. Morris, 13 "Wend.
(N. Y.) 325, 334. People v. Hurlbut,
23 Mich. 44; State v. Milwaukee, 20
Wis. 87; Watertown v. Cady, 20 Wis.
501; Crane v. Fond du Lac, 16 Wis.
196; Norton v. Peck, 3 Wis. 714. The
words "city" and "village" refer
only to municipal corporations. City
of Wahoo v. Reeder, 27 Neb.- 770, 43
N. W. Rep. 1145; Mitchell v. Franklin
Co., 25 Ohio St 143. A school district
or township is included within the
phrase "political or municipal cor-
poration." Clark v. Thompson, 37
Iowa. 536; Winspear v. Township of
Holman, 37 Iowa, 542; Curry v.
Township of Sioux City, 62 Iowa,
104. See School District v. Williams,
38 Ark. 454 The "Board of Park
Commissioners " of the city of Min-
neapolis is not a municipal corpo-
ration. State v. District Court, 33
Minn. 235. The city and county of
San Francisco is a municipal corpo-
ration, to be regarded as a city in
matters of government, but the ter-
ritory over which government is ex-
ercised is at the same time a county.
Kahn v. Sutro, 114 CaL 316, 46 Pac,
Rep. 87, 33 L. R. A. 620. As to con-
struction of the word "town," see
Stout v. Glen Ridge, 58 N. J. L. 578,
35 AtL Rep. 913.
3 Iowa Land Co. v. Carroll, 39 Iowa,
151. InDowlanv.SibleyCo.,36Minn.
431, the court, in considering the pro-
vision of the statute, "that the legis-
lature may, by general law or special
act, authorize a municipal corpora-
tion to levy assessments for local
4 People v. McFadden, 81 Cal. 489;
Soper v. Henry Co., 26 Iowa, 264;
State v. Leffingwell, 54 Mo, 458; Bar-
ton Co. v. Walser, 47 Ma 189; Board
of Park Com'rs v. Common Council
of Detroit, 28 Mich. 237; Green Co.
v. Eubanks, 80 Ala. 204; Askew v.
Hale Co., 54 Ala. 639; Sherman Co.
v. Simons, 109 U. S. 735; Laramie Co.
v. Albany Co., 92 U. S. 307; Williams-
port v. Commonwealth, 84 Pa. St.
487. The term "municipal corpo-
ration" does not include towns.
Eaton v. Supervisors of Manitowoc
Co., 44 Wis. 489.
6
INTRODUCTORY.
[§3.
Under the head of public ^tm'-corporations are included
those bodies which are public in their nature, but in some cases
have not all the characteristic powers and liabilities of corpo-
rations. It includes counties, townships, school districts, over-
seers of the poor, and many such bodies. There is here an
increase of public functions at the expense of corporate char-'
acter. The power of local action and initiative is diminished,
and with the increase of governmental functions there is a
decrease of liability to individuals.1
" They are created for a public purpose as an agency of state
through which it can most conveniently and effectually dis-
charge the duties of the state as an organized government to
every person, and by which it can best promote the welfare of
all."2
improvements, etc.," Dickinson, J.,
said: "The question now presented
is whether the words ' municipal cor-
porations,' as here employed, should
be deemed to include counties. At
the time of the adoption of this
amendment, counties might with
propriety be termed political corpo-
rations. The statute declared them
to be such. Gen. Stat. 1866, ch. 8, sec.
75. They were not, however, in the
proper and more general use of the
term, municipal corporations. Yet,
for the purposes of general designa-
tion, it is not uncommon to use that
term in a sense including such quasi-
corporations as counties and towns,
and so sometimes to distinguish pub-
lic or political corporations or func-
tions from those which would be
termed private. Thus, in our own
decisions may be found such lan-
guage as this: ' A municipal corpora-
tion,— a city, county or town ' (Har-
rington v. Town of Plainview, 27
Minn. 224, 229, 6 N. W. Rep. 777), 'a
county or any other municipal cor-
poration.' County of Blue Earth v.
St. Paul & Sioux City R. Co., 28 Minn.
503, 507, 11 N. W. Rep. 73. See, also,
Winspear v. District Tp. of Holman,
37 Iowa, 542; Ex parte Selma & Gulf
R. Co., 45 Ala. 696, 732. In consider-
ing a provision in the constitution
of Missouri forbidding the creation
of corporations by special acts, ' ex-
cept for municipal purposes,' it was
said that a corporation for munici-
pal purposes is either a municipal-
ity, such as a city or town created
expressly for local self-government,
with delegated legislative powers,
or it might be a subdivision of the
state for governmental purposes,
such as a county. State v. Leffing-
well, 54 Mo. 458, 475. Our consider-
ation of this question has led us to
the conclusion that the words 'mu-
nicipal corporations ' in the proviso
under consideration may be reason-
ably construed as having the broad
rather than the restricted sense, and
as including such gwasi-corporations
as counties and towns."
iSherbourne v. Yuba Co., 21 Cal.
113; Abbett v. Johnson Co., 1l4
Ind. 61; Dosdall v. Olmsted Co., 80
Minn. 9fi.
2 Galveston v. Posnainsky, 62 Tex.
118; School District v. Wood, 13
Mass. 192. As used in our jurispru-
dence, the term "corporation" ap-
plies to derivative creations only,
and does not include the state. Des
Moines Co. v. Barker, 34 Iowa, 84.
§ -i.] DEFINITION, CLASSIFICATION AIxD HISTORY. 7
The difference between a municipal corporation and a county
is thus explained by Ur. Justice Paxson: "A municipal corpo-
ration has for its object the interest, advantage and conven-
ience of the locality and its people. A county organization is
intended to subserve the policy of the state at large in such
matters as finance, education, provision for the poor, military
organization, means of travel and transport, and especially the
administration of justice. A municipal corporation is a gov-
ernment possessing powers of legislation, and is charged with
a general care for the welfare of the people; while a county
organization is merely the involuntary agent of the state,
charged with the interests of the state in a particular county,
and clothed with certain administrative functions limited in
extent and clearly defined by law."
§ 4. School districts. — The administrative area for educa-
tional purposes is a public corporation known as a school dis-
trict. It is a territorial subdivision of the county or township,
according to whether one or the other is the unit for local gov-
ernment. Like all such corporations, their powers are strictly
limited to such as are necessary for the proper performance of
the administrative duties with which they are charged. " These
little corporations," says Mr. Justice Bell,1 " have sprung into
existence within a few years, and their corporate powers and
those of their officers are to be settled by the construction of
the courts upon a succession of crude, unconnected, and often
experimental enactments. School districts are in Xew Hamp-
shire £wa.s-/-corporations of the most limited powers known to
the law. They have no powers derived from usage. They have
the powers expressly granted to them, and such implied powers
as are necessary to enable them to perform their duties and no
more." 2 Like counties, school districts have been sometimes
included within the general name of municipal corporations.3
1 Harris v. School District, 28 N. - 3 Winspear v. District, etc., 37 Iowa,
H. 58. 542; Curry v. District, 62 Iowa, 102;
2 Wilson v. School District, 32 N. Clark v. Thompson, 37 Iowa, 536.
H. 118; Foster v. Lane, 30 N. H. 315; Contra, Heller v. Stremmel, 52 Mo.
Giles v. School District, 31 N. H. 304; 309 (Incorporated board of public
Scales v. Chattahoochee Co., 41 Ga. schools). See " The Laws Relating
225; Rogers v. People, 68 111. 154; to City School Boards," by James C.
Beach v. Leahy, 11 Kan. 30; Conklin Boy kin, in Report of Commissioner
v. School District, 22 Kan. 521. of Education for 1895-96, voL 1, ch. 1.
8 INTRODUCTORY. [§§ 5, 6.
§ 5. Distribution of powers and duties. — The state in modern
times makes very large use of municipal corporations in the
work of state government. But ordinarily local administration
is conducted by the counties and townships. The distribution
of powers and duties varies in the different states. We find
at the present time three systems of local administration based-
upon the unit of administration : the New England system, the
Southern system and the Compromise system. In the New
England system the town, or, as it is known in the "West, the
township, is the unit of administration, while the county is
almost ignored. In the Southern system the county is the ad-
ministrative unit, and nearly all the administrative business,
not municipal in character and not affecting education, is cen-
tered in the county officers. In some states the county officers
attend to school business ; while in others the school district has
been created. In some of the Southern States there is an area
lower than the county, called the township, but it is simply an
administrative district, and not generally a corporation.1
The Compromise system is the most widely prevalent. It de-
veloped in New York and Pennsylvania, and provides for a dis-
tribution of administrative affairs somewhat equally between
the county and the town. In the Pennsylvania, or Commis-
sioner form of this system, the county authority consists of
commissioners elected by the people of the county at large;
while in the Supervisor, or New York, form, the governing
board consists of supervisors elected from the towns of which
the county is composed. The Supervisor form is found in New
York, Michigan, Illinois, Wisconsin, Nebraska, and in a modified
form in Virginia.2 The Commissioner plan is found in Pennsyl-
vania, Ohio, Indiana, Iowa, Kansas and Missouri, and in a modi-
fied form in Maine, Massachusetts, Minnesota and the Dakotas,
and has "very generally been adopted as the form for tfye
county authority in the commonwealths of the South, where
there are in the county generally no lesser districts to be repre-
sented." *
§ 6. The county — Its organization and functions. —
American county was, in the first instance, " a frontier copy
1 Goodnow, Administrative Law, I, 2 Howard, Local Const Hist, I,
p. 192; Howard, Local Const Hist, I, p. 439.
ch. IX. 8 Goodnow, Administrative Law, L,
p. 180.
§ 6.] DEFINITION, CLASSIFICATION AND HISTOKY. 9
of the English shire," although its growth affords no analogy
to that of its English prototype. The shire is an historical unit
with boundaries as natural as that of the nation, while our
counties have been deliberately " laid out " as a part of the
machinery for the administration of the government of the
state.1
In the "West and Southwest the adaptability of the county to
the needs of a widely-scattered population led to its adoption
as the chief organ of local government, while the mental char-
acteristics of the early inhabitants of the Eastern states, and
the conditions imposed upon them by religious and climatic in-
fluences, there led to the adoption of the township as the ad-
ministrative unit. Katural conditions have modified both the
county and the township in the "Western states. The Southern
settlers adopted the county as the unit of administration,2 while
the immigrants from Xew England carried with them their
ideas of the importance of the town and the town meeting. In
Xew England the county was originally created solely for ju-
dicial purposes, although in the process of time certain other
functions have been taken from the township and conferred
upon it. In the "West and Xorthwest the township and the
county exist side by side with carefully differentiated functions.
The power and importance of the county consequently depends
much upon its location, and this must not be lost sight of in
determining the bearing of the decisions of the various states.
Thus, in Xew England, where its powers are most restricted,
its functions scarcely extend beyond the maintenance of county
buildings, the granting of certain licenses and a partial control
over highways, while in the South it has a complete set of offi-
cers and is practically charged with the entire local government.
Under the common form of organization we find the county
commissioners, and under their general supervision a county
1 Wilson, The State, § 1026. wisest inventions ever devised by
2 Doubtless because of the nature the wit of man for the perfect exer-
of the country and the character of cise of self-government and for its
the people, but contrary to the ad- preservation, ... As Cato, then,
vice of its early statesmen. Jeffer- concluded every speech with the
son wrote : " Those wards called words, ' Carthago delenda est,"1 so do
townships in New England are the I every opinion with the injunction,
vital principle of their governments, ' Divide the counties into wards.' "
and have proved themselves the "Works, VI, 544
10 INTRODUCTOKY. [§ 7.
treasurer, auditor, superintendent of education, superintendent
of roads and a superintendent of the poor. On the judicial side
there is the sheriff, clerk of courts, surrogate or ordinary or
probate judge, and the state's attorney, who frequently acts
for a judicial district composed of several counties. Where the
township exists the county organization varies greatly, almost
the only common point of resemblance being its control over
the administration of justice. The county commissioners are
variously elected and constituted. Under the Commissioner
system, as in Indiana, Pennsylvania, Ohio, Iowa, Kansas and
Minnesota, they are elected by the electors of the county, while
under the Supervisor system of New York, Michigan, Illinois,
Nebraska and Wisconsin, the board is composed of all the town-
ship supervisors. Somewhat wider powers seem to be granted
where the Commissioner system exists. In Rhode Island the
only county officers are those connected with the administration
of justice. Elsewhere than in New England the administration
of schools, the relief of the poor, the construction and main-
tenance of highways and matters of sanitation, and the control
of the police, commonly falls to townships, while the county is
charged with the administration of justice, the maintenance
of jails, court-houses and poor-houses, and the equalization of
taxes. Wherever found, however, counties are public quasi-
corporations and possess such powers only as are conferred
upon them by statute.
§ 7. The townsliip. — The township is older than the county
or the English shire. It is the lineal descendant of the ancient
Germanic mark, andwas revived by the early settlers of New
England as best adapted to their condition. It was " a case of
revival of organs and functions on recurrence of the primative
environment." l These towns were from the first the adminis-
trative units, but were ultimately grouped for judicial purposes
into counties, to which certain of their functions were trans-
ferred. This system of government by the town meeting is
practicable only where the numbers who are to participate are
limited and the capacity for self-government is highly devel-
1 Howard, Local Const Hist., I, ch. Series, No. 11. Criticised, Doyle, The
2; Adams, Germanic Origin of New Puritans, I, p. 74.
England Towns, J. H. U. Studies, 1st
§ 8.] DEFINITION, CLASSIFICATION AND HISTOEY. 11
oped. Hence, while the system is still efficient, it has been,
somewhat impaired by the influx of a foreign population, un-
trained in self-government, and the growth of great cities.
§ S. Tlie tou-n meeting. — A Xew England town is the best
modern representative of a pure democracy. All the qualified
voters of the territory are members of the corporation, and
meet at certain periods as a general assembly for the trans-
action of the business of the community. The representative
system is unknown, and each voter is entitled to participate
personally in the work of government. The regular annual
sessions are generally held in the spring of the year. They are
presided over by a moderator and ars attended by the town
officers, who render their accounts for the year and their esti-
mates of the money required for the ensuing year. The meet-
ing approves or disapproves of the action of its officers and
elects their successors. The organization of the towns is not
entirely uniform, although they are all apparently formed upon
one model. The officers are commonly from three to nine select-
men, a town clerk, a treasurer, a collector of taxes, assessor, a
school committee, and such other minor officers as constables,
library trustees and surve}Tors of highways. All the functions
of local government are in the hands of these officials. The
taxes for the payment of county expenses are apportioned by
the counties, but are raised by the towns.1
1 Warren v. Charlestown, 2 Gray, De Tocqueville, Democracy in Amer-
84; Hill v. Boston, 122 Mass. 344; ica, I, ch. V, p, 56 ; Adams, Germanic
Commonwealth v. Eoxbury, 9 Gray, Origin of N. E. Towns; John Hop-
451; Eastman v. Meredith, 36 N. H. kins Univ. Studies, 1st Series, No. 11,
284. For the history, organization p. 5; Channing, Town and County
and value of the town meeting, see Govt. in the New England Colonies
Bloomfield v. Charter Oak Bank, 121 of N. Am.; J. Toulmin Smith, Local
U. S. 121; Quincy's Municipal Hist. Self-Go vernment and Centralization,
of Boston, ch. 1 ; Bryce, American 29. Special attention is directed to
Commonwealth, chs. 48, 49; How- Ho'smer's Life of Samuel Adams, ch.
ard's Local Const. Hist, of the U. S., XXIII (American Statesmen Series),
voL 1, ch. 2; Freeman's Growth of and the same learned author's work
the English Constitution, 17; Lecky, on "Anglo-Saxon Freedom," ch.
Histoiy of the Eighteenth Century, I, XVII. For a Tory estimate of the
387; John Stuart Mill, Representa- town meeting see the letters of Gov.
tive Government, p. 64; May, Con- Hutchinson in Hosmers Life of
stitutional Hist of England, II, 460; Hutchinson.
12 IXTKODUCTOEY. [§ 9.
§ 9. The township elseivhere than in Neiv England. — The
New England township sprang out of the church, the western
township out of the school. In the West the government sur-
veyor preceded the settler, and laid out the land into regular
squares to which he gave the name of townships; and of each
of these congress reserved two square miles for the endowment
.of schools. The organization necessary for the administration
of this grant became the basis of the township as a political
organization. The township was organized on the county.
"The Northwestern township," says Dr. Wilson,1 "is more thor-
oughly integrated with the county than is the New England
township. County and township fit together as pieces of the
same organization. In New England the township is older
than the county, and the county is grouping of townships for
certain purposes ; in the Northwest, on the contrary, the county
has in all cases preceded the township, and townships are divis-
ions of the county. The county may be considered as the cen-
tral unit of local government; townships are differentiated
within it."
The township organization is strongest in the East and weak-
est in the South. It has been most generally accepted in New
York, Pennsylvania, Ohio, Indiana, Kansas, Michigan, Wiscon-
sin, Illinois and Minnesota. " In the states of this group," says
Prof. Howard, " localism finds its freest expression : the town
meeting possesses powers commensurate with the requirements
of modern life; the primative and proper nexus between soir
and tunscipe is restored ; the township is under the county but
represented there. The county board of supervisors is the old
scire-moot over again. The township-county system of the
Northwest is one of the most perfect products of the English
mind, worthy to become, as it may not improbably become, the
prevailing type in the United States." 2 »
In the far West, in states such as California, Oregon and
Nevada, the county is the unit of government, although the
township is well developed in California. Virginia has had a
complete township system since 1870, and the tendency through-
out the South and West seems to be toward the strengthening
1 Shaw, Local Government in Illi- 2 Local Self-Government in the
nois, p. 10. United State, I, p. 158, quoted in Hos-
mer's Anglo-Saxon Freedom, p. 290.
§ 10.] DEFINITION, CLASSIFICATION AND HISTOEY. 13
of the township. Its organization differs according to its de-
velopment, ranging from the pure democracy of ]STew England
to the representative system of the "West. Where the depart-
ure from the original type is greatest, the town meeting has
given place to the ordinary process of election. The selectmen
are nowhere found outside of Xew England, but their functions
are discharged by supervisors, who have general charge of the
affairs of .the township. These officers vary in number from
one to three, and are sometimes, as in Ohio, designated as
trustees. The powers of all townships are such and such only
as are conferred on them by statute.1
§ 10. The English municipality. — The origin of our munici-
palities is found very far back in English history.2 The thickly-
settled communities in England always had a peculiar organiza-
tion. From the beginning of the Xorinan period the inhabitants
of a town owed certain payments to the crown, which were col-
lected by the sheriff, who was the fiscal representative of the
crown. The towns finally contracted to pay a fixed sum, which
they were allowed to raise in such manner as they saw fit. This
privilege was called the jirmi burgi. It was in fact a lease of
the town by its inhabitants. For the collection of this quota,
the people under the supervision of the crown selected an offi-
cer, who was called the fermor or mayor. In consideration of
the payment of a sum of money, the crown also granted to the
inhabitants of a special district the privilege of holding a court,
and exempted them from the jurisdiction of the sheriff's tourn,
which was the ordinary crown court. The union of these priv-
ileges, known as the court leet and the jirmi lurgi, constituted
a municipal borough. The townsmen, meeting in court leet,
found it a natural and easy matter to assume such other func-
tions as were necessitated by the presence of a large number of
persons in a small district. They established rules as to partici-
pation in the court leet and as to the election of a mayor or
provost. The general rule was that no one could participate in
1 Bloomfield v. Charter Oak Bank, 2 This and the following section is
121 U. S. 121; Hooper v. Emery, 14 taken largely from Prof. Goodno'w's
Me. 375. valuable work on Administrative
Law.
14 INTRODUCTORY. [§ 10.
the leet who did not pay taxes, was not a householder, and was
not, in the eye of the law, capable of participating in the ad-
ministration of justice. In the quaint language of the period,
only those could be members of the court leet who were free-
men householders, paying scot and bearing lot ; and the formal
criterion of the existence of these qualities in a given person
was the fact that he had been sworn and enrolled in the court
leet. This body had thus the ultimate decision as to the quali-
fications of municipal citizenship.
After the formation of parliament, the quota of the town
was fixed by that body, and nothing remained to be done by
the town but to assess the quota. The judicial system also
underwent a change. The royal courts gradually absorbed all
judicial functions, and the court leet became a jury for the de-
termination of questions of fact. Such questions and the assess-
ment of the quota could be more easily settled by a committee
than by the large assembly, and the result was a formation of a
committee of the original court leet for the transaction of both
financial and judicial business. This committee gradually as-
sumed the performance of all municipal business. It was com-
posed of the largest taxpayers, who generally also held the
commission of the peace. The smaller taxpayers gradually lost
their equal privileges by neglecting to exercise them. As social
and economic conditions changed, the qualifications for mem-
bership changed. In the larger cities membership in one of the
great trade guilds became essential to the exercise of municipal
functions. The limited body thus organized became finally the
town council or leet jury.1
About this time the crown began to grant charters of incor-
poration to the body of rich and influential citizens who consti-
tuted the town council. The original object was to enable the
district to hold property and to sue and be sued. Finally tliese
bodies were granted representation in parliament, and there-
after their charters were granted and revoked by the crown
when necessary to increase or maintain the political influence
1 See Gneist, Self-Government, 318- description of modern English mu-
325; Const. Hist, of England, II, nicipal corporations, see PoL Sci.
pp. 140, 141; Pollock & Maitland, Quar., IV, pp. 197, 216.
Hist, of Eng. Law, I, p. 625. For a
§ 11.] DEFINITION, CLASSIFICATION AND HISTOKT. 15
of the crown in parliament.1 The result was the system of
rotten boroughs so well known in history.
§ 11. The American municipality.— The early American mu-
nicipalities were modeled upon the English municipality as it
existed in the seventeenth century. The city authority was in
the town council, which was composed of the mayor, recorder,
aldermen and councilmen. They were organized for the satis-
faction of purely local needs, such as the management of the
corporate property and finances, and the enactment of local
police ordinances. The affairs of the colony within the munici-
pality were attended to by a body of officers similar to those
in the county and rural districts. But gradually the munici-
palities lost their local character and began to be used by the
state as agencies of the state government. The corporation,
which originally consisted of the members of the council, came
to be regarded as consisting of the people residing within the
district. The state made use of the city officials for the pur-
poses of state administration, and used the municipality as an
agent for the collection of taxes. The cities thus largely lost
the power of regulating their purely local affairs; and instead
of being organs for the satisfaction of local needs in accordance
with the wishes of the inhabitants became the agencies of the
state government, very much in the same manner as counties
and other such subdivisions of the state.2
The plan of organization also changed. Instead of the con-
solidation of powers and functions in the council, they were
separated and distributed among the council and the executive
officers. The duty of deliberation is now generally left to the
council, although it often exercises administrative power; while
that of execution and administration is left to officers selected
for that purpose.
1 Dillon, Mun. Corp., I, § 18: Allison especially abused their official pow-
& Penrose, Hist, of Phila.,p. 10; Rex ers -to this end. Jeffreys, on the
v. London, 8 Howell, St. Trial, 1039. northern circuit, "made all charters
The judgment passed on London fall before him like the walls of Jer-
was followed by similar informa- icho, and returned to London laden
tions against the other towns. Most with surrenderings, the spoils of the
of the towns anticipated the attack towns." Gneist, Const Hist of Eng-
by voluntarily surrendering their land, II, p. 308.
charters, in the place of which they - United States v. B. & O. Ry. Co.,
received new ones "after a conserva- 1? WalL (U. S.) 322.
tive pattern." The justices of assize
BOOK I.
THE CREATION AND CONTROL OP PUBLIC CORPORA-
TIONS.
CHAPTER H.
THE CREATION OF PUBLIC CORPORATIONa
§ 12. Legislative authority.
13. Power to create.
14 Compulsory incorporation.
15. By the United States.
16. By territorial legislatures.
§ 17. By implication.
18. By prescription.
19. Manner of legislative action.
20. Name, boundaries and powers.
§ 12. Legislative authority. — AD public corporations in this
country are the creatures of legislation ; and no place or local-
ity can, by its act alone, obtain the rights and privileges, or sub-
ject itself to the liabilities, of a corporation.1 In order that
there may be such a corporation, there must have been legisla-
tive action under the form and subject to the limitations pre-
scribed by the organic law. But this, as will hereafter be seen,
may, under certain circumstances, be presumed.
§ 13. The pou*er to create. — The creation of corporations for
the purpose of aiding the central government and carrying on
the work of local government is a legitimate exercise of the
power of the state.2 As there cannot be a municipal corpora-
1 New Boston v. Dun barton, 12 N.
H. 409. The power to create munici-
pal corporations is legislative, and
cannot be delegated to the courts.
Territory v. Stewart, 1 Wash. 98, 8 L.
R, A. 106; Re North Milwaukee, 93
Wis. 616, 67 N. W. Rep. 1033, 33 L. R
A. 638. But the power to determine
the boundaries may be delegated to
the courts. State v. Stout, 58 N. J.
L. 598, 33 AtL Rep. 858.
2
2 Hope v. Dederick, 8 Humph,
(Tenn.) 1, 47 Am. Dec. 597; Memphis
v. Memphis "Water Co., 5 Heisk.
(Tenn.) 529. The legislative power
in this respect is supreme, except
when restrained by constitutional
limitation. See Chandler v. Doug-
lass, 8 Blackf. 10, 44 Am. Dec. 732,
and note; Jameson v. People, 16 111.
257, 63 Am. Dec. 304
18 CREATION AND CONTROL OF PUBLIC CORPORATIONS. [§§ 14, 15.
tion without territory, the legislature in creating the corpora-
tion must necessarily determine its territorial limits.1
§ 14. Compulsory incorporation.— While the legislature may,
and now commonly does, require the consent of the people of
the territory to their incorporation, it is not necessary that it
should do so.2 But compulsory incorporation can result only
from direct legislative action, or the action of such persons or
bodies as may by the law of the land be vested with sufficient
delegated authority to bind the community.3 A charter ac-
cepted by a majority of the people is binding upon all within
the corporation.4 When it is necessary that a charter or amend-
ment thereto shall be accepted by the people, such acceptance
must clearly appear; but it is not necessary that the accept-
ance should appear upon the records of the corporation, as it
may be implied from the exercise of corporate power.5
§ 15. By the United States. — The power to create public cor-
porations may be exercised by the federal legislature in a proper
case. No express power for this purpose is granted to congress
by the constitution, and it may therefore be exercised only when
proper as a means of executing a granted power. Congress has
express power "to exercise legislation in all cases whatsoever"
over the District of Columbia ; and may thus exercise the same
power in creating public corporations within the District that
an ordinary state legislature may exercise within the state.6 It
may also create such corporations in the territories by virtue of
the general grant of power .over the public domain.7
1 Richards v. Cincinnati, 52 Ohio left with the people of a city to say
St. 419, 27 L. R. A. 737, and cases whether they will come under a gen-
cited in the notes. eral law or retain their old organiza-
2Lycomingv. Union, 15 Pa. St. 166, tion. State v. Govan, 70 Miss. 535, 13
53 Am. Dec. 571; Berlin v. Gorham, So. Rep. 959; g 60, infra. *
34 N. H. 266; Clarke v. Rogers, 81 Ky. 3 People v. Bennett, 29 Mich. 451,
43; Blanchard v. Bissell, 11 Ohio St. 18 Am. Rep. 107.
96; State v. Cincinnati, 52 Ohio St. 4 Taylor v. Com. of Newberne, 3
419, 27 L. R. A. 737. "The right to Jones' Eq. 141, 64 Am. Dec. 566.
refer any legislation of this charao 5 Russell v. M'Lellan, 14 Pick. 63;
ter to the people peculiarly inter- Taylor v. Com. of Newberne, tupra,
ested does not seem to be questioned, 6 Stoutenburgh v. Hennick, 129
and the reference is by no means un- U. S. 141 ; Barnes v. District of Co-
usual." Cooley, Const. Lim. (4th ed.), lumbia, 91 U. S. 540.
143, citing many cases. It may be 7 Deitz v. City of Central, 1 CoL 332.
§§ 16, 17.] CREATION OF PUBLIC CORPORATIONS. 19
§ 16. By territorial legislatures. — As congress ma}' create
public corporations within a territory, it may delegate its pow-
ers in this respect to the legislature of the territory.1 Under
such a grant, the territorial legislature may confer upon mu-
nicipal corporations the usual power to make and enforce proper
ordinances for the government of the people.2 The authoriza-
tion of the territorial legislature is generally contained in a
clause in the organic act, to the effect that its power shall ex-
tend to all rightful subjects of legislation.'
§17. By indication. — "Wlien not governed by an express
constitutional provision, the legislature need not use any par-
ticular form of words or proceed in any particular manner in
creating a public corporation. It is not even necessary that
express words should be used. Thus, where the legislature
confers or imposes upon a certain community or body of per-
sons, by a collective name, powers or liabilities of such a char-
acter that they can only be exercised by or attached to the
place in a corporate capacity, it will be deemed to have cre-
ated a corporation, in so far at least as is necessary to give
effect to the legislative intention.4 But it is only in cases of
necessity, in order that the grant may be enjoyed, that such
corporate powers will be admitted ; s and it has been said that
the authorities will show that it is only when a l&na fide con-
1 Deitz v. City of Central, 1 Col. 323; a body corporate, and as such liable
Riddick v. Amelin, 1 Mo. 7; People v. to be sued." Denton v. Jackson, 2
City of Butte, 4 Mont. 174. Johns. Ch. 320; North Hempstead v.
2 State v. Young, 3 Kan. 445. Hempstead, 2 Wend. 109; Dean v.
'Yincennes University v. Indiana, Davis, 51 Cal 406; Justices v. Arm-
14 How. (U. S.) 268; Burnes v. City of strong, 3 Dev. 284; Bessey v. Unity,
Atchison, 2 Kan. 454; People v. City 65 Me. 343; School District v. Wood,
of Butte, 4 Mont. 174, 13 Mass. 193; Gaskill v. Dudley, 6
4 Russell v. Men of Devon, 2 T. R. Met 546. See Propagation. Society
672. In Jordan v. Cass County, 3 Dil- v. Pawlet, 4 Pet (U. S.) 480; Blair v.
Ion, 185, the court said: "Undoubt- West Point Precinct, 2 McCrary, 459.
edly the legislature designed that Where the law imposes a duty or ob-
there should be a remedy upon these ligation upon and gives a remedy
bonds, and if it were consistent with against an aggregate body, it gives
the legislative intent the court would a right of action, and to that extent,
be justified in holding, if necessary by implication, creates it a corpora-
to afford an effectual remedy, that tion.
the township was created by impli- sStebbinsv. Jennings, 10 Pick. 172.
cation, as to this particular matter,
20 CREATION A^'D CONTROL OF PUBLIC CORPORATIONS. [§§ 18, 19.
tract cannot be otherwise enforced that a corporation will be
admitted to have been created by implication.1
§ 18. By prescription. — In a few instances corporations have
been recognized in this country as having been created by pre-
scription. That is, when corporate powers have been exercised
through a long term of years, it will be presumed that the
power was originally granted, and the state will be estopped
from asserting the contrary.2 Thus, the existence of a school
district may be proved by prescription; and it will then be pre-
sumed to possess the powers ordinarily conferred by the legis-
lature upon such bodies.3
§ 19. Manner of legislative action. — In the absence of con-
stitutional limitations, the legislature may create public corpo-
rations by special act or general law, as it deems most proper.
Until within a comparatively recent time it was customary to
create such bodies by special acts, which then became the char-
ters of the corporations ; and this method is still permissible in
Alabama, Michigan, Oregon, Louisiana, Nevada, Maine, Mary-
land, New York, North Carolina, Wisconsin and Texas. In Mis-
souri it may be by special act when the city contains at least
five thousand inhabitants, and the charter is approved by a vote
of the people within the territory to be incorporated. In these
states it will be understood that the legislature may exercise
its discretion, and in some cases it has provided for the creation
of public corporations under a general law. But the inconven-
ience of having numerous public corporations within the state
with different powers and liabilities, together with the evils in-
cident to all special legislation, has led to the very general adop-
tion of constitutional provisions forbidding the creation of either
public or private corporations by special act, and requiring that
the legislature shall provide for a uniform system of county,
town and municipal government. Provisions of this general
1 Blair v. West Point Precinct, 2 continued use of corporate powers
McCrary, 459. and the public acquiescence, will in-
2 Jameson v. People, 16 I1L 257, 63 dulge in presumptions in favor of
Am. Dec. 304; Back v. Carpenter, 29 their legal existence." United States
Kan. 349. "Municipal corporations Bank v. Dandridge, 12 Wheat. 64;
are created for the public good — Swartout v. Michigan, etc. R. Co., 24
are demanded by the wants of the Mich. 394.
community; and the law, after long- 3 Roby v. Sedgwick, 35 Barb. 319.
§ 20.] OEEATION OF PUBLIC CORPORATIONS. 21
character are now in force in Illinois, Ohio, Kansas, "Wisconsin,
Michigan, Nebraska, Yirginia, North Carolina, Missouri, Ne-
vada, California, Iowa, Arkansas, New Jersey, "West Yirginia,
Tennessee, Florida, Indiana and Minnesota. In some states
the legislature is required to provide for a uniform system of
county, town and municipal government; while in others, cities
of a certain size are allowed to frame their own charters. Thus,
in Missouri and California, cities having a population of over
one hundred thousand may, under certain prescribed restric-
tions, frame a charter for themselves ; and a similar law is in
effect in Minnesota.1 In Pennsylvania and Texas the legisla-
ture may by special act incorporate communities having over a
specified number of inhabitants. Territorial legislatures are
forbidden by act of congress from granting private charters or
special privileges.2
§ 20. Name, boundaries and powers. — The creation of a cor-
poration involves the fixing of its boundaries and the determin-
ing of its powers. Ordinarily the law provides a name for the
corporation; but this need not be stated in the charter. Under
general incorporation laws the name is commonly selected by
the corporation.3
1 Gen. Laws 1897, ch. 280, Const. 2 The various constitutional pro-
Amend, adopted at Gen. Election, visions are collected in Stimson, Am.
1896. See "The People and their City St. Law, sec. 395 (44), and in Good-
Charters," in Oberholzer's The Ref- now's Municipal Home Rule, ch. V
erendum in America, ch. IV, and (1895).
" Home Rule for our American * Johnson v. Indianapolis, 16 Ind.
Cities," in Annals of Am. Acad. of 227; Cutting v. Stone, 7 Vt. 471;
PoL and Soc. Science for May, 1893, Galesburg v. Hawkinson, 75 IlL 156.
voL III, p. 736.
CHAPTER III.
LEGISLATIVE CONTROL OVER PUBLIC CORPORATION
§ 21. General statement.
22. Dual character of municipal
corporations.
23. Local self-government.
24 Power over charters.
25. Public property.
26. Roads and streets.
27. Certain franchises.
28. The private property of a cor-
poration.
29. Disposition of property upon
dissolution.
I. POWER OVER OFFICES AND OFFI-
CERS.
30. Various kinds of officers.
81. Police officials.
82. Their appointment and pay-
ment.
83. Park commissioner
84 Board of public works.
85. Officers to lay out streets.
86. The mayor.
IL FUNDS AND REVENUES.
87. Power over revenue of public
corporations.
IIL
OVER
LEGISLATIVE CONTROL
CONTRACTS.
§ 38. Relation of the corporation to
the state.
Rights of parties contracting
with corporation.
Illustrations.
Rights in a sinking fund.
Limitation of indebtedness.
39.
40.
41.
42.
IV. THE POWER TO IMPOSE OBLI-
GATIONS.
43. Nature of the debt.
44 Compulsory taxation.
45. Construction of highways.
46. Support of public schools.
47. Local corporate purposes.
48. Subscription for stock.
49. Compulsory payment of
claims,
V. THE TERRITORY AND THE BOUND-
ARIES.
50. The general rule.
51. What territory may be an-
nexed.
52. Illustrations.
53. Property and debts upon di-
vision of territory.
§ 21. General statement. — In considering the extent of legis-
lative power over public corporations it must be remembered
that such power is subject to the constitutional limitations
upon legislative action in general, both as to substance and
manner of execution. Constitutional provisions regarding gen-
eral and special laws, titles of acts, and the like, must, as a
matter of course, be observed in legislation with reference to
public corporations as well as in all other cases. But, from the
fact that such corporations are created by the legislature for
governmental purposes, and that their rights rest on legislation
§ 22.] LEGISLATIVE CONTROL. 23
and not on contract, it follows that the legislative control over
such bodies is practically absolute unless restricted by express
or implied constitutional limitations. That is, unless there is
an express limitation upon the general power of the legisla-
ture, it may create, change or abolish public corporations with
or without the consent of the inhabitants.1 This is literally
true with reference to public corporations which are purely
governmental agencies, such as counties ; 2 but municipal cor-
porations have certain powers of a private nature in relation
to which they act more as private corporations and are gov-
erned by the principles of private law.3
§22. Dual character of municipal corporations. — The ex-
tent of legislative power over municipal corporations is largely
determined by the nature of the action sought to be controlled,
or the interest affected. Such corporations have a twofold
character. They are endowed with certain functions and pos-
sess powers and capacities which are granted to them for the
benefit of their own citizens, and which are distinct from those
which they possess as agencies of the state government. These
powers and capacities are commonly called private, in order to
distinguish them from the public powers in which the state is
more directly concerned. As regards such private powers and
capacities, municipal corporations are substantially on the same
footing as private corporations.4 Thus, when a municipal cor-
1 St. Louis v. Russell, 9 Mo. 508; organization have a direct and ex-
St. Louis v. Allen, 13 Ma 400; Dart- elusive reference to the general pol-
mouth College v. "Woodward, 4 icy of the state, and are in fact but
"VYheaton, 518; Laramie Co. v. Al- a branch of the general administra-
bany Co., 92 U. S.307; People v. Ben- tion of that policy." Tread way v.
nett, 29 Mich. 451; Wallace v. Trust- Schnauber, 1 Dak. 233; Hamlin v.
ees, 84 N. C. 164 Meadville, 6 Neb. 227: Talbot Co.
2" A county organization is ere- v. Queen Anne Co., 50 Md. 245; Han-
ated almost exclusively with a view nibal v. Marion Co., 69 Mo.. 571.
to the policy of the state at large for * Illinois Trust & Sav. Bank v. Ar-
purposes of political organization kajisas City, 76 Fed. Rep. 271, 34 L.
and civil administration in matters R. A. 518; State v. City of Great
of finance, of education, of provision Falls (Mont.), 49 Pac. Rep. 15 (1807).
for the poor, of military organiza- * Illinois Trust & Sav. Bank v. Ar-
tion, of the means of travel and kansas City, 76 Fed. Rep. 271, 34 L. R.
transport, and especially for the A. 518; Safety L Wire Co. v. Balti-
general administration of justice, more, 66 Fed. Rep. 140; Common-
With scarcely an exception, all the wealth v. Philadelphia, 132 Pa. St.
powers and functions of the county 388; State, Jameson v. Denny, 118
21 CKEATION AND OOKTEOL OF PUBLIC COItPOJRATIONS. [§ 23.
poration supplies its inhabitants with gas or water, it is gen-
erally held to do so in its private corporate capacity, and not
in the exercise of a pOAver of local sovereignty.1 As said by
the supreme court of Pennsylvania in a recent case : 2 "If this-
power is granted to a borough or city, it is a special private
franchise, made as well for the private emolument and advan-
tage of the city as for the public good. In separating the two
powers . . . public and private, regard must be had to the
object of the legislature in granting them. If granted for pub-
lic purposes exclusively, they belong to the corporate body in
its public, political or municipal character ; but if the grant
was for the purpose of private advantage and emolument,
though the public may derive a common benefit therefrom, the
corporation quo ad hoe is to be regarded as a private company.
It stands upon the same footing as would any individual or
body of persons upon whom the like special franchises had
been conferred."
The legislature has absolute authority over municipal corpo-
rations in matters of a governmental nature, and may enforce
the performance of governmental duties, either through local
officers or through agents or officers of its own appointment.3
§ 23. Local self -government. — In the absence of constitu-
tional restrictions there is no question of the power of the leg-
islature to control the local matters of municipalities, although
in certain cases there is shown a strong disposition to protect
the people from legislative interference in the management of
their local affairs. Thus, in well-considered decisions in Indiana
and Michigan it is held that the right of the people to the local
Ind. 449, 4 L. R. A. 79 ; Wagner v. Rock Rep. 202, 211: " Whoever insists upon
Island, 146 111. 139, 21 L. R. A. 519; the right of the state to interfere
Board of Commissioners v. Detroit, and control by compulsory legisla-
28 Mich. 228, 15 Am. Rep. 202; Phila- tion the action of a local coifttit-
delphia v. Fox, 64 Pa. St. 180; People uency in matters exclusively of local
v. Hurlbut, 24 Mich. 44, 9 Am. Rep. concern should be prepared to de-
103. fend a like interference in the action
1 But see Fire Ins. Co. v. Keese- of private corporations and natural
ville, 148 N. Y. 46. persons."
2Brumm's Appeal (Pa. St.), 12 AtL 3This dual character was denied
Rep. 855. See, also, Wagner v. Rock in some of the earlier cases. See
Island, 146 111. 139, 21 L. R. A. 519. Darlington v. City of New York, 31
As said by Judge Cooley in Peo- N. Y. 164; In re Senate Bill. 12 Colo,
pie v. Detroit, 28 Mich. 228, 15 Am. 188.
§ 23.] LEGISLATIVE COXTKOL. 25
self-government which existed at the time of the adoption of
the state constitution is inherent and not subject to legislative
interference.1 But these decisions are based upon the peculiar
conditions existing in these states, and do not affect the general
statement as to legislative power. It is true the courts will not
presume that the legislature intends to interfere with local self-
government; but if in the legislative judgment the public inter-
est will be best served by such interference, the power of the
legislature cannot be successfully questioned. The rule is as
stated in Massachusetts : 2 " We cannot declare an act of the leg-
islature invalid because it abridges the privileges of self-gov-
ernment in a particular in regard to which such privilege is not
guaranteed by the provisions of the constitution."
In some states the right of local self-government is secured
by constitutional provision. Thus, the constitution of Xew
York provided8 that "all city, town and village officers, whose
election or appointment is not provided for by the constitution,
shall be elected by the electors of such cities, towns or villages,
or appointed by such authorities thereof as the legislature
thereof shall designate." This provision was held to secure to
1 State v. Denny, 118 IndL 382, 4 fundamental theory of self-govern-
L. R. A. 65; State v. Denny, 118 Ind. ment. and denies to the people of
449.. 4 L. R. A. 79; People v. Hurl- the district the right to select their
but, 24 Mich. 44, 9 Am. Rep. 103; own officers from among their own
Cooley, Const. Lim. 222. In Board, of number. Whatever may be said re-
Park Com'rs v. Common Council of garding the policy of placing the
Detroit, 28 Mich. 228, 15 Am. Rep. police administration of cities in a
203, Cooley, J., said: "While it is a board of police commissioners who
fundamental principle in the state, are chosen by state officers rather
recognized, and perpetuated by ex- than through the electors of the cit-
press provisions of the constitution, ies, there can be no doubt that the
that the people of every hamlet, legislature has the power to do so."
town and city of the state are en- State v. Seavey, 22 Neb. 455, 467.
titled to the benefits of local self- For a discussion of the tendency to-
government, the constitution has not ward, depriving municipalities of the
pointed out the precise extent of right of self-government, see Good-
local powers and capacities, but has now's Municipal Problems, p. 9;
left them to be determined in each Bryce, Am. Comw., I, p. 630, chapter
case by the legislative authority of on Municipal Government, contrib-
the state, from considerations of good uted by Pres. Low of Columbia Uni-
policy as well as those which pertain versity.
to the local benefit and local desires." 2 Commonwealth v. Plaisted, 148
In State v. Hunter, 38 Kan. 578, the Mass. 375.
supreme court of Kansas said: "In 'Const, of N. Y., art. 10, sec. 2.
effect it is said to be opposed to the
26 CREATION AND CONTROL OF PUBLIC CORPORATIONS. [§§ 24-, 25.
the citizens of the municipalities immunity from legislate inter-
ference with the election or appointment of purely municipal
ofFcers;1 but not to prevent the appointment by the legislature
of commissioners for the improvement of the streets of a city.2
§ 24. Power over charters. — The transactions between a leg-
islature and a municipal corporation are in the nature of leg-
islation and not of contract.3 Hence, municipal charters, not
being contracts, may be changed by the legislature at pleas-
ure .when the rights of creditors of such corporations are not
thereby affected.4 This legislative power is not affected by the
fact that the corporation is by its charter made the trustee of
a charity or of other private rights and interests. If the legal
existence of the trustee is destroyed, a court of chancery will
assume the execution of the trust, and, if necessary, appoint a
new trustee.5 The legislature may, however, submit the ques-
tion of the acceptance of an amendment to its charter to the
people, although it is under no obligation to do so.6 The fact
that a city charter is recognized in the constitution of the state
does not place it beyond the control of the legislature.7 The
annexation of territory to a city is not an amendment of its
charter.8
§ 25. Public property. — The public property of a public cor-
poration is under the exclusive control of the legislature. This
includes all property acquired by the exercise of the power of
eminent domain, or which is dedicated to a public use.9 In
1 People v. Albertson, 55 N. Y. 50. cott, 17 R. L 36,6, 13 L. R A. 217, and
2 Astor v. New York, 62 N. Y. 567. cases cited in note. The legislature
3 East Hartford v. Hartford Bridge, may place the administration of
10 How. (U. S.) 511. trusts vested in the city in the hands
* State v. Kolsem, 130 Ind. 434, 14 of a board of trustees. Philadelphia
L. R. A. 566; North Yarmouth v. v. Fox, 64 Pa. St. 169; Moutpelier v.
Skilling, 45 Me. 133, 71 Am. Dec. 530; E. Montpelier, 27 Vt. 704, 29 Vt,*12.
Claghorn v. Cullen, 13 Pa. St. 133, 53 6 People v. Nally, 49 Cal. 478; Foote
Am. Dec. 450, cases cited on page v. Cincinnati, 11 Ohio, 408, 38 Am.
470 of note; Smith v. Wrescott, 17 Dec. 737.
R. I. 366, 13 L. R. A. 217; Meri- 7 Mayor of Baltimore v. State, 15
wether v. Garrett, 102 U. S. 472; Md. 376, 74 Am. Dec. 572, and note,
Broughton v. Pensacola, 93 U. S. 266. 8 State v. Warner, 4 Wash. 263,
8 Girard v. Philadelphia, 7 Wall. (U. 17 L. R. A. 263.
S.) 1; Vidal v. Girard, 2 How. (U. S.) 9 Clinton v. Cedar Rapids, etc. Rj.
127. As to the power to take and hold Co., 24 Iowa, 455; Darlington v.
property in trust, see Smith v. Wes- Mayor, 31 N. Y. 164,
§ 26.] LEGISLATIVE CONTROL. 27
considering the nature of station-houses, fire-alarm telegraph
and watch-boxes, the supreme court of Maryland says : l " There
is no doubt that taking private property is beyond the scope of
legislative authority, except when required for public use, and
upon just compensation being made. But does this property
come within such description? Let us test this by the very ex-
ception stated in the argument. If private, the state may take
it for public use on making compensation ; but to whom is the
compensation to be made? Jsbt to the mayor and city council
as individuals, but to them as representing the people; and how
made? By a tax levied upon the people themselves; that is,
the people are to be taxed to buy property from themselves,
for which they have already been taxed, and have paid. City
property may be taken for public purposes other than the use
of the city; that is, we suppose that property owned by the
city might be condemned in some instances as any other prop-
erty. But when the use would pass from the city into other
hands, from whom would the payment or compensation be made
to the city as recent owner? But this doctrine cannot apply
where the design is merely to take city property dedicated to
particular uses and apply the same property to the same pur-
poses, by merely changing the agency by which the use is to
be directed."
§ 26. Roads and streets. — The legislature as the representa-
tive of the whole people may regulate the use of streets, high-
ways and other such public places. The municipality has no
property interest in the streets even where it holds the title in
fee. The title is held by the corporation in trust for the pub-
lic, and "is as directly under the power and control of the
legislature for any public purpose as any property held by the
state or any public body or officers, and its application cannot
be challenged by a corporation which in respect to such prop-
erty, at least, is a mere agent of the sovereign power of the
people." 2 Hence, the legislature may transfer the control of
1 Mayor of Baltimore v. State, 15 Ry. Co. v. Portland, 14 Oreg. 188, 13
Md. 376, 74 Am. Dec. 572. Pac. Rep. 265: Council Bluffs v. K. C.,
2 People v. Kerr, 27 N. Y. 188; etc. Ry. Co. 45 Iowa, 3-58; Chicago,
Duval County Com. v. Jacksonville, etc. Ry. Co. v. Dunbar, 100 III. 110;
29 L. R, A. 416; State v. Jacksonville Elliott, Roads and Streets, § 656i.
S. R. Co., 29 Fla. 590; Portland, etc.
28 CREATION AND CONTROL OF PUBLIC CORPORATIONS. [§§ 27, 28.
the streets of a city to park commissioners, to be by them con-
trolled as boulevards.1
§ 27. Certain franchises. — A public corporation has no prop-
erty right in a ferry franchise acquired under a legislative
grant.2 So the power to maintain wharves and charge wharf-
age may be revoked at any time. Such powers " are merely
administrative and may be revoked at any time, not touching,
of course, any property of the city actually acquired in the
course of administration." 3
§ 28. The private property of a corporation. — The dual char-
acter of a municipal corporation has been already explained.
Its property, like its powers, may be either public or private.
It may own property as an individual or private corporation
owns property ; and in legislating with reference to such prop-
erty the state must observe the principles of private law.4 In
exercising powers granted for the private benefit of the mu-
nicipality and its inhabitants, it is governed by the same rules
that govern the private individual or corporation. It has uni-
formly been held that municipal corporations may have private
rights and interests vested in them under their charters; and
that the grants of property to them for other than public pur-
poses are no more the subjects of legislative control than are
the private and vested rights of individuals.5 Thus, where a
city held certain real estate in fee-simple absolute, under ancient
grants, and had at the expense of the citizens constructed res-
ervoirs upon a portion of such real estate, it was held that the
legislature had no power to require that the reservoir be de-
stroyed and the land converted into a public park without com-
pensation to the city.8
1 People v. Walsh, 96 111. 232, 36 Am. Vt. 12, 27 Vt. 704. The private prop-
Rep. 135; Simon v. Northrup, 27 Oreg. erty of a municipal corporatidh is
487, 30 L. R. A. 171. protected by the constitution of the
2 E. Hartford v. Hartford Bridge, United States in the same manner
10 How. (U. S.) 511, 16 Conn. 149. and to the same extent as the pro;>-
3 Railway Co. v. Ellerman, 105 U. S. erty of an individual. Grogan v.
166. San Francisco, 18 Cal. 590, per Field,
< Illinois Trust & Sav. Bank v. Ark. Ch. J. ; Cooley, Const. Lim. *238.
City, 76 Fed. Rep. 271, 34 L. R. A. 6 Webb v. Mayor, 64 How. Pr. 10.
518; Wagner v. Rock Island, 146 III " It seems to me," said McComber, J.,
139, 21 L. R. A. 519. "that the weight of authority is to
* Montpelier v. E. Montpelier, 29 the effect that the property which
§§ '2\), 30.] LEGISLATIVE CONTROL. 29
§ 29. Disposition of property upon dissolution. — The power
to amend and repeal the charter of a private corporation can-
not be used to take away property under the operation of a
charter.1 Upon dissolution, so much of the assets as are not
public become subject to a charge for the benefit of the cred-
itors. The private property of a public corporation is in like
manner stamped with a trust for the payment of its debts,2 and
cannot be diverted to other uses by the legislature.*
I. POWER OVER OFFICES AND OFFICEUS.
§30. Various kinds of officers, — The question of the legis-
lative control over the officers who manage the affairs of pub-
lic corporations is determined by the distinction between state
and municipal officers. This distinction rests not upon the
name or locality of the office, but upon the nature of the func-
tions to be performed. If the duties of the office concern the
state at large or the general public, although exercised within
defined territorial limits, it is a state office, and under the ab-
solute control of the legislature. But if such duties relate ex-
clusively to the local concerns of a particular municipality, the
office is strictly municipal, and any attempt on the part of the
legislature to control the appointment of such officer is an in-
terference with the right of local self-government.4
Xew York holds in its proprietary or taken to restore to the original
private character, though originally owner or proprietor the rights which
derived from a power claiming the the municipal corporation were for a
ultimate title, and which concerns time permitted to exercise. Terrett
the private advantage of the corpo- v. Taylor, 9 Cranch, 52; 2 Kent, Com.
ration as a distinct legal personal- 257."
ity, is stamped with so many of the l The Sinking Fund Cases, 99 U. S.
rights and powers of natural persons 700; Detroit v. Howell Plank Road
or private corporations as that the Co., 43 Mich. 140.
city cannot be deprived of this reser- 2 " If a municipal corporation, upon
voir without due process of law and the surrender or extinction in other
without just compensation. It ad- ways of its charter, is possessed of
mits of no doubt that the legislature any -property, a court of equity will
may change, modify, enlarge or re- take possession of it for the benefit
strain the powers of a corporation of the creditors of the corporation."
which it has created. But whenever Broughton v. Pensacola, 93 U. S. 266.
this is done, and a municipal corpo- 'Hare, Am. Const. Law, p. 636, and
ration is relieved of the privilege cases cited. .
and duty of maintaining a jurisdio * People v. Hurlbut, 24 Mich. 44, 9
tion over the property and prop- Am. Rep. 103; State ex reL Holt v.
erty rights, care has invariably been Denny, 118 Ind. 449, 4 L. R, A. 65;
30 CREATION AND CONTROL OF PUBLIC CORPORATIONS. [§§ 31, 32.
§ 31. Police officials. — The various kinds and grades of po-
lice officials, although ordinarily performing their duties and
exercising their powers within the limits of a single municipal-
ity, are state and not municipal officers.1
§ 32. Their appointment and payment — The legislature may
provide a permanent police for a municipal corporation, and
place it under control of a board composed of members ap-
pointed by the legislature, and require the transfer to such
board of all station-houses belonging to the corporation.2 As
said by Chief Justice Elliott,3 " The power of the legislature to
provide for the appointment of the members of a municipal
board of police has been affirmed in every instance in which
it has been so challenged and presented as to require the judg-
ment of courts. Those courts which hold to the doctrine that
the control of matters of purely local concern cannot be taken
from the people of the locality place their decisions upon the
ground that the selection of purely peace officers is not a local
matter, but is one of state concern, inasmuch as such officers
belong to the constabulary of the state. But while the rea-
soning of the courts is diverse, the ultimate conclusion reached
by all the cases is the same." The maintenance of a police
State v. Hunter, 88 Kan. 578; People 15 Md. 376. In Shad v. Crawford, 3
v. Draper, 15 N. Y. 532; Attorney- Mete. (Ky.) 207, and People v. Al-
General v. Common Council of De- bertson, 55 N. Y. 50, they were held
troit (Mich.), 70 N. W. Rep. 450. A to be local officers. The members of
member of a city council is not an a board of health are state officers,
officer of the ward from which he is Davock v. Moore, 105 Mich. 120, 28
chosen. He is a city officer. State L. R. A. 783; Taylor v. Philadelphia
v. Craig, 132 Ind. 54,' 16 L. R. A. 688. Board of Health, 31 Pa. St. 73, 72
1 Commonwealth v. Plaisted, 148 Am. Dec. 724. Jury commissioners
Mass. 375; Kimball v, Boston, 1 Allen are state officers. Speed v. Detroit,
(Mass.), 417; Rusher v. Dallas, 83 Tex. 100 Mich. 92.
151; Culver v. Streator, 130 111. 238; 2Baltimore v. State, 15 Md. 376;
Perkins v. New Haven, 53 Conn. 214; People v. Mahaney, 13 Mich. *&1;
Norristown v. Fitzpatrick, 94 Pa. St. State v. Covington, 29 Ohio St. 102 ;
121; Burch v. Hardwicke, 30 Grat. State v. Seavey, 22 Neb. 454; State
(Va.) 24; State v. Seavey, 22 Nev. 454; v. Hunter, 38 Kan. 578; State ex rel.
State v. Hunter, 38 Kan. 578. "As Holt v. Denny, 118 Ind. 449, 4 L. R. A.
a political society the state has an 65; State ex rel. Jameson v. Denny,
interest in the suppression of dig- 118 Ind. 382, 4 L. R. A. 79. But see
order and the maintenance of peace Evansville v. State, 118 Ind. 426, 4 L.
and security in every locality within R. A. 93.
its limits." Denio, J., in People v. 3 State v. Kolsen, 130 Ind. 434, 14
Draper, 15 N. Y. 544; People v. Mayor, L. R. A, 566.
§§33, 34.] LEGISLATIVE CONTROL, 31
department is commonly left to municipal authority, but the
legislature may establish a municipal board of police, with
power to estimate the expense of such department and com-
pel the municipality to provide by taxation for the payment
of the amount so required.1
§ 33. Park commissioners. — The legislature may create a
board of park commissioners, with members to be elected by
tbe people of the municipality, and confer on it authority to
purchase a public park. But such commissioners are primarily
municipal officers, exercising powers of a nature purely munici-
pal. In a leading case in Michigan a statute created a board
and named the members and authorized it to select the land
for a park and to make contracts therefor, subject to ratifica-
tion by the city council and a vote of the people. Before the
acts of the board were ratified the statute was amended, and
the board authorized to " acquire by purchase ?' the necessary
lands, and to require the council to provide the necessary
money. It was held that the council could not be compelled
to raise the money for such a local purpose, and that the fact that
the council recognized the board as a municipal agent before
the amendment did not make it the representative of the city
with reference to powers conferred by the amendment.2
§ 34. Board of piiblic works. — The legislature cannot create
a body known as the board of public works, appoint the mem-
bers and vest in such body complete and exclusive control
over the streets and bridges of a city.3 So, under a constitu-
tional provision which authorizes the legislature to confer
upon cities and villages such powers of local legislative and
administrative character as it shall deem proper, and provides
that " judicial officers of cities and villages shall be elected,
People v. Mahaney, 13 Mich. 481; 15 Am. Rep. 202; Attorney-General
Burch v. Hardwicke, 30 Grat (Va.) v. Lathrop, 24 Mich. 235; Park Com.
24; Police Conrrs v. Louisville, 3 v. Mayor, 29 Mich. 347. See St. Louis
Bush (Ky.), 597; State v. Leovy, 21 Co. v. Grisold, 58 Ma 175; Harvard
La. Ann. 538. In People v, Albert- v. Drainage Co., 51 I1L 130; People
son, 55 N. Y. 50, the case of People v. Mayor, 51 111. 17; Astor v. Mayor,
v. Draper, 15 N. Y. 532, is distin- 66 N. Y. 567. .
guished, and People v. Shepard, 36 3 State ex reL Jameson v. Denny,
N. Y. 285, doubted. 118 Ind. 382, 4 L. R. A. 79; State v.
2 People v. Detroit, 28 Mich. 328, Smith, 44 Ohio St 34a
32 CREATION AND CONTROL OF PUBLIC CORPORATIONS. [§§ 35, 36.
and all other officers shall be elected or appointed at such
times and in such manner as the legislature may direct," the
legislature may appoint officers not municipal, such as police
commissioners; but it cannot appoint officers whose duties are
exclusively local, such as the members of a board of water
commissioners for a particular city.1
§ 35. Officers to lay out streets. — The legislature may appoint
officers within the city for specific purposes, such as laying out
streets, and assessing damages arising therefrom, and authorize
them to bind the corporation by their acts. Such an act is not
an improper or extraordinary exercise of legislative power, and
does not conflict with constitutional principles.2
§ 36. TJie mayor. — The chief executive officer of a city has
been held to be a municipal and not a state officer.3 But in a
recent well-considered case,4 it was held that the mayor was a
state officer, within the meaning of a constitutional provision
to the effect that no person holding an office under the state
shall at the same time hold the office of governor. The court
said : " Many cases have arisen upon similar provisions of the
various constitutions, and while the decisions are not altogether
uniform, we shall find them in substantial harmony upon two
propositions, viz. : First, that an officer of a city, whose duties
are purely and simply municipal, and who has no functions per-
taining to state affairs, does not come within the constitutional
description of officers holding office under the state. And sec-
1 People v. Hurlbut, 24 Mich. 44, 9 and with the advice and consent of
Am. Rep. 103. The constitution of the senate. In re Senate Bill, 12
Colorado, article 5, section 25, which Colo. 188.
provides that the legislature " shall 2 " When officers are thus ap-
not delegate to any special commis- pointed for purposes within the lim-
sion, private corporation or associa- its and sphere of the inunicipal^gov-
tion, any power to make, supervise ernment of a city, their acts are the
or interfere with any municipal im- acts of the city, precisely as if they
provernent, money, property or ef- had been done by the municipal au-
fects, or perform any municipal thorities selected under the provis-
functions whatever," does not pre- ions of the charter." Daley v. St.
vent the legislature creating a board Paul, 7 Minn. 390 (Gil. 311).
of public works for the city of Den- 3 Britton v. Steber, 62 Mo. 370.
ver charged with the making of pub- 4 Attorney-General v. Common
lie improvements, composed of mem- Council of Detroit (Mich.), 70 N. W.
bers appointed by the governor by Rep. 450.
§ 37.] LEGISLATIVE CONTEOL. 33
ond, where officers in cities are appointed or elected by the
community in obedience to laws which impose duties upon them
in relation to state affairs, as contradistinguished from affairs
of interest to the city merely, such as relate to gas-works, sew-
ers, water-works, lighting, etc., they are upon a different foot-
ing, and may properly be said to hold office under the state."
II. FTJXDS A2?D KETEXUES.
§ 37. Pmver over revenue of piiblic corporations. — The legis-
lature has the same power over the revenues of a city, county
or township that it has over the immediate funds of the state;1
and in the exercise of its authority it may appropriate such
revenues to such public purposes as it deems most conducive
to the public good.2 The revenues of a county are not its prop-
erty in the sense in which private property belongs to an indi-
vidual. They are the result of taxation exercised for the public
good, and the public interest requires that the legislature shall
have power to direct and control their application.8 Hence,
until actually appropriated, the public funds are. subject to the
control of the legislature. Thus, no vested rights are acquired
in a fund set apart for the relief of disabled officers. " The
direction of the state," said Mr. Justice Field,4 " that the fund
should be for the benefit of the police officer or his representa-
tives, under certain conditions, was subject to change or revo-
cation at any time at the will of the legislature. There was
no contract on the part of the state that its disposition should
always continue as originally provided. Until the particular
1 Dovack v. Moore, 105 Mich. 120, tion to recover the same must be
28 L. R. A. 783; County v. People, 11 brought in the name of the munici-
I1L 202; County of Richland v. pality. People v. Ingersoll, 58 X. Y.
County of Lawrence, 12 111. 1 ; Trust- 1; People v. Fields, 58 N. Y. 491;
ees v. Tatam, 13 111. 28; Dennis v. Love v. Schenck, 12 Ired. (N. C.)304;
Maynard, 15 III 477; People v. Power, Dennis v. Maynard, 15 111. 477; Spaul-
25 111. 169; Love v. Schenck, 12 Ired. ding v. Andover, 54 N. H. 38. See
(X. C.) 304; Youngs v. Hall, 9 Xev. Trustees of Aberdeen Academy v.
212; Indianapolis v. Indianapolis Aberdeen, 13 S. & M. (Miss.) 645.
Home, etc., 50 Ind. 215; Duval Co. 2Creighton v. San Francisco, 42
Com. v. Jacksonville (Fla.), 29 L. R. CaL 446.
A. 416, 18 So. Rep. 339. ' Board v. City of Springfield, 63
Misappropriation of funds — Ac- HI. 66.
iron— "When the funds of the county 4 Pennie v. Reis, 132 U. S. 464
or city are misappropriated, an ac-
3
34: CREATION AND CONTROL OF PUBLIC CORPORATIONS. [§ 38.
event should happen upon which the money or a part of it
was to be paid, there was no vested right in the officer to such
payment."
Where the constitution of the state prohibited the legislature
from authorizing counties to levy taxes for any other than
county purposes, it was held that the legislature might never-
theless require the county to turn over a certain portion of a
tax levied for county purposes to a municipality to be used in
repairing the streets of a city.1
III. LEGISLATIVE CONTKOL OVER CONTRACTS. .
§ 38. Relation of the corporation to the state. — Neither pub-
lic corporations nor their officers or agents2 can acquire vested
rights in the powers which are conferred upon them. " It is
an unsound and even absurd proposition that political power
conferred by the legislature can become a vested right as
against the government in any individual or body of men.3
Such power exists subject to the will of the legislature, and in
the absence of a constitutional limitation may be repealed or
withdrawn either by general law or special statute.4 Thus,
the legislature may repeal a grant of power to levy and collect
wharfage, although the income of the wharf has been pledged
by the corporation along with other revenues for the payment
of bonds issued in order to obtain money to maintain and im-
prove the wharf.8 So, it may repeal a statute which gives to
a city the right to license the sale of intoxicating liquors, and
provides that the money received from such licenses shall be
appropriated to the support of paupers within the city.6 " Such
authority," said Caton, J.,7 " gives the city no more a vested
right to issue licenses because the legislature specified the ob-
ject to which the money should be applied, than if it had been
put into the general fund of the city." ^
1 Duval Co. Cora. V.Jacksonville, 5St. Louis v. Shields, 52 Mo. 351.
(Fla.), 29 L. R. A. 416; Skinner v. Distinguishing Van Hoffman v.
Henderson, 26 Fla. 121, 8 L. R. A. 55. Quincy, 4 Wall. 535.
2 People v. Hurlbut, 24 Mich. 44. 6 Gutzweller v. People, 14 111. 142.
3 People v. Morris, 13 Wend. 335, 7See Richmond Co. v. Lawrence
Nelson, J. Co., 12 111. 1: Sangamon v. Spring-
« Sloan v. State, 8 Blackf. (Ind.) 361 ; field, 63 III 66.
State v. Kolsen, 130 Ind. 434, 14 L.
R A. 566.
§§ 39, -iO.] LEGISLATIVE CONTROL. 35
§39. Rights of parties contracting with corporation. — But
in the exercise of this general power of control over the corpo-
ration, the legislature must not impair any of the constitutional
rights of third persons who have become creditors of the cor-
poration. The corporation itself may not acquire rights as
against its creator in such cases ; but its transactions with its
creditors may give rise to contracts which are protected by
the constitutional provision.1
§ 40. Illustrations. — Where a public corporation has been
given authority to incur indebtedness, and to levy a tax for the
purpose of providing the means to pay such debt, parties who
become creditors of the corporation upon the faith of this tax-
ing power are presumed to have contracted with reference to
the means of payment thus provided, and the legislature can-
not destroy their remed}T by depriving the municipality of the
right to lev}' the tax. The power of taxation as it existed at
the date of the contract is read into the contract and becomes
a part of the obligation.2 The rights of creditors can no more
be affected by constitutional amendment than by the repeal
of the law authorizing the levying of the tax.8 Subsequent
changes which substantially modify the manner of levying the
tax, so as to affect rights under the contract, violate the rule
against the impairment of contracts.4 But an alteration in the
manner of levying such tax, which does not substantially affect
the security of the creditor, is valid.5 So, exempting certain
property from the operation of the tax is not objectionable,
iShapleigh v. San Angelo, 167 U. S. 716; Wolff v. New Orleans, 103
U. S. 654; Wolff v. New Orleans, 103 U. S. 358; Louisiana v. Pilsbury, 105
U. S. 358; Williams' Appeal, 72 Pa. U. S. 278; Rails Co. Court v. United
St 215; Memphis v. United States, States, 105 U. a 733; Mobile v. Wat-
97 U. S. 293; Van Hoffman v. Quincy, son, 116 U. S. 289; Von Hoffman v.
4 Wall 536; Morris v. State, 62 Tex. City of Quincy, 4 Wall. 535; Oilman
728; Brooklyn Park Commissioners v. Sheboygan, 2 Black, 510; Goodale
v. Armstrong, 45 N. Y. 234; Mt v. Fennell, 27 Ohio St 426, 22 Am.
Pleasant v. Beckwith, 100 U. S. 514; Rep. 321; State v. New Orleans, 37
Merriweather v. Garrett, 102 U. S. La. Ann. 13.
472; Lansing v. County Treasurer, 'Sawyerv. Concordia, 12 Fed. Rep.
1 DilL C. C. 522; People v. Bond, 10 754.
CaL 563; Smith v. Appleton, 19 Wis. «Seibert v. Lewis, 122 U. a 284.
488. s People v. Bond, 10 CaL 563.
2 Nelson v. St Martin's Parish, 111
36 CREATION AND CONTROL OF PUBLIC CORPORATIONS. [§§ 41, 42.
when not carried to such an extent as to affect the substantial
rights of the creditors.1
§ 41. Rights in a sinking fund. — The creditors of a public
corporation may acquire contract rights in a fund which is
raised for the payment of their debt, and upon the faith of
which they have acted. Thus, where certain creditors sur-
rendered their claims against the city, and accepted new obli-
gations upon a pledge that certain revenues and property
should be applied to the payment of such new obligations in
a specific manner, the security thus provided for cannot be di-
verted to other purposes by either the municipality or the leg-
islature. The provision for payment thus made becomes a
part of the contract, and cannot be materially altered without
the consent of such creditors.2 So, where an act of a legisla-
ture provides for the creation of a sinking fund, which is to
be deposited and applied in a certain manner, and creditors act-
ing on the faith of such provision for the payment of their
debts surrender their obligations and receive new bonds for
the payment of which the fund is pledged, the legislature can-
not, by subsequent act, provide for a different depositary of
the fund.3 It may be stated as a general rule that such pro-
visions as were intended to, and probably did, operate as an in-
ducement to the creditors to accept the new security, cannot
subsequently be modified to the prejudice of the creditors.
§ 42. Limitation on indebtedness. — Where a city was au-
thorized to issue a certain amount of bonds in payment for an
equal amount then outstanding, and a provision of the act pro-
hibited the city from thereafter issuing its bonds " except in
payment of its bonded debts," it was held that, after the cred-
itors had accepted this proposition, the prohibition against the
*
1 Gilman v. Sheboygan, 2 Black, 2 People v. Bond, 10 CaL 563. As
510; Seibert v. Lewis, 122 U. S. 284 to the nature of a sinking fund, see
The rights of a contractor, who has Kelly v. City of Minneapolis, 63
agreed to take his compensation in Minn. 125, 30 L. R. A. 281, 65 N. W.
assessments, cannot be destroyed by Rep. 115.
a subsequent statute restricting the 3The Liquidators v. Municipality,
power of assessment. Goodale v. 6 La. Ann. 2L
Fennell, 27 Ohio St. 426, 22 Am. Rep.
821.
§ 43.] LEGISLATIVE COXTEOL. 37
issue of additional bonds became a contract between the mu-
nicipality and the bondholders, which was impaired by subse-
quent legislation authorizing the issue of bonds for other pur-
poses.1
IY. THE POWER TO IMPOSE OBLIGATIONS.
§ 43. Nature of the debt— "Where a debt or liability would
arise out of the performance of a public duty, and is to be in-
curred for public or state purposes, the legislature may impose
the same upon the corporation without its consent. The ques-
tion can seldom arise in reference to public corporations other
than municipal, and the power is frequently restricted by con-
stitutional provisions. In the absence of such provisions, the
question whether a city can be compelled by an act of the leg-
islature to incur a debt or assume a liability against its will must
be determined by the nature of or purpose for which such lia-
bility is to be incurred.2 A city may be compelled to pay a
debt even in excess of a legislative limit upon indebtedness;3
but otherwise when the limitation is impose by the constitu-
tion.4 It is often said that there must be some basis in morals
and justice in order to justify the legislature in such compulsory
action. Thus, a county which is under a moral obligation to
reimburse another county for certain expenses may by subse-
quent act of the legislature be compelled to satisfy the claim.5
But the moral obligation does not constitute a consideration ; 6
and the legislature might compel the payment of the debt with-
out reference to the existence of the moral element. The leg-
islature cannot, however, require a court to render judgment
upon a claim against a corporation upon mere proof of the
1 Smith v. Appleton, 19 Wis. 468. termine what moneys they may raise
2 Simon v. Northrup, 27 Oreg. 487, and spend, and what taxation for
30 L. R A, 171; Lycoming v. Union, municipal purposes may belmposed;
15 Pa. St. 166, 53 Am. Dec. 575. and it certainly does not exceed its
8Mosherv. School District, 44 Iowa, constitutional authority when it
123. compels a municipal corporation to
4 Creighton v. San Francisco, 42 pay a debt which has some merito-
CaL 446; New Orleans v. -Clark, 95 rious basis to rest upon." Mayor,
U. S. 644 etc. of New York v. Tenth Nat. Bank,
'Lycoming v. Union, 15 Pa. St 111 N. Y. 446.
166, 55 Am. Dec. 575; Cole T. State, 6 Warren v. Whitney, 24 Me. 561,
102 X. Y. 48; O'Hara T. State, 112 41 Am. Dec. 406, and note to Ernest
N. Y. 146. " The legislature may de- v. Parke, 27 Am. Dec, 28a
38 CREATION AND CONTROL OF PUBLIC CORPORATIONS. [§§ 44-46.
amount of the claim, as this would be an attempt to exercise
judicial power.1
§ 44. Compulsory taxation. — The state may direct and levy
compulsory taxation whenever necessary to compel a public
corporation to perform its duties as an agency of the state
government, or to fulfill any legal or equitable obligation rest-
ing upon it in consequence of any corporate action. The peo-
ple have no absolute right to be heard except through their
representatives in the legislature of the state.2
§ 45. Construction of highways. — The control of public high-
ways, bridges and canals is a matter of general, or state, as dis-
tinguished from municipal concern, and the legislature may
require a municipal corporation to build and maintain a bridge
over a stream within its limits,3 or to expend money for the
improvement of docks, wharves or levees.4 So a county or town
may be compelled to issue bonds for the purpose of raising
money to be expended in the construction and maintenance of
highways within their limits.5 This duty to maintain streets
and highways may be enforced by mandamus at the instance
of a private person, without showing injury or interest.8
§ 46. Support of public schools. — Where the state has estab-
lished a system of public schools, it may by compulsory taxation
1 Hogland v. Sacramento, 15 Cal. modify it." Chapman, C. J., in Car-
142. ter v. Bridge Proprietors, supra. The
2 Cooley, Taxation, 684; Davock v. legislature may charge the cost of
Moore, 105 Mich. 120, 28 L. E. A. 783. an authorized public improvement
3 Simon v. Northrup, 27 Oreg. 487, upon the particular public corpora-
SQL. R. A. 171; Philadelphia v. Field, tion chiefly benefited. Norwich v.
58 Pa. St. 320; Thomas v. Leland, 24 Hampshire, 13 Pick. (Mass.) 60; H.
Wend. 65; Guilder v.Otsego, 20 Minn. etc. v. Norfolk Co., 6 Allen (Mass.),
74; Pumphrey v. Baltimore, 47 Md. 353.
145. A county may be compelled to 4 Eastern, etc. Ry. Co. v. Central
contribute toward the erection and Ry. Co., 52 N. J. L. 267, 31 Am. &
maintenance of a bridge situated in Eng. Corp. Cas. 262.
another county. Carter v. Bridge 5 People v.Flagg, 46 N. Y. 401; Jen-
Proprietors, 104 Mass. 236; Common- sen v. Board of Supervisors, 47 Wis.
wealth v. Newburyport, 103 Mass. 298; People v. Board of Supervisors,
129. " The general rule that bridges 50 Cal. 561. May impose a tax to pay
and highways shall be maintained for the construction of a canal,
by the counties and towns within Thomas v. Leland, 24 Wend. 65.
which they are situated originated 6 Pumphrey v. Baltimore, 47 Md.
in the legislature, and the power 145.
that established it can repeal or
§§ 47-49.] LEGISLATIVE CONTROL. 39
compel the proper political division of the county to maintain
the same. Such schools concern the state at large, and the un-
restricted control by the legislature in no way conflicts with the
privilege of local self-government.1 So, it is competent for the
legislature to provide for the distribution of money raised by
taxation for school purposes after it has been collected.2
§ 47. Local corporate purposes. — The law is equally well set-
tled that it rests with the citizens of the corporations and not
with the legislature to determine whether a debt shall be in-
curred for a purpose purely municipal.*
§ 48. Subscription for stock. — A corporation is deemed to
act as a private corporation when it becomes a stockholder in
a railway company ; and a mandatory statute enacted without
the consent of the inhabitants of the town, requiring the cor-
poration to become a shareholder in a private corporation by
exchanging its bonds for stock upon the terms prescribed by
the statute, is invalid.4
§ 49. Compulsory payment of claims. — The legislature may
use the power of compulsory taxation in order to compel a
public corporation which exists and exercises authority by its
permission to pay a debt which is just and equitable in its
character and involves a moral obligation, although not bind-
ing in strict law, and not enforceable in law or equity.* " The
1 State v. Ha worth, 122 In A 462; (Brooklyn and New York Bridge
State v. Blue, 122 Ind. 600. Case), 5 Abb. New Cas. 383, it was
2 School District v. Weber, 75 Mo. held that the erection of a bridge to
558; State Board of Education v. connect the two cities was a city
Aberdeen, 56 Miss. 518. purpose, for which indebtedness
3 People v. Detroit, 28 Mich. 228, might be incurred.
15 Am. Rep. 202; People v. Chicago, *New Orleans v. Clark, 95 U. S.
51 111. 17, 2 Am. Rep. 278; Cairo, etc. 644; Blandin v. Burr, 13 .CaL 343;
R. Co. v.Sparta, 77 111. 505; Marshall Guilford v. Supervisors, 18 Barb.
v. Silliman, 61 111. 225; People v. 615, 13 N. Y. 144; Brewster v. Syra-
Batchelor, 53 N. Y. 128, 13 Am. Rep. cuse, 19 N. Y. 116; Thomas v. Le-
480; People v. Harper, 91 111. 357; land, 24 Wend. 65; People v. Super-
Atkins v. Town of Randolph, 31 Vt, visors, 70 N. Y. 228: Wrought Iron
226. Compare State v. Tappan, 29 Bridge Co. v. Town of Attica, 119
Wis. 669. N: Y. 204; ,Lycomiug v. Union, 15
* People v. Batchelor, 53 N. Y. 12& Pa. St. 166; Hasbrouck v. Milwau-
See opinion of Grover, J., reviewing kee, 21 Wis. 219; Grogan v. SanFran-
the authorities. In People v. Kelly cisco, 18 CaL 590; Sinton v. Ashbury,
40 CREATION AND CONTROL OF PUBLIC CORPORATIONS. [§ 49.
sovereign power of appropriation of the public funds already
in the treasury, or to be raised by taxation, in favor of indi-
viduals, is one the exercise of which must depend largely upon
the legislative conscience ; and, like most of the great powers
of government, cannot be interfered with by us, except in ex-
ceptional cases. The most usual cases in which this power has
been exercised are those like the one under consideration,
where an individual having no legal claim, in the sense of
being capable of enforcement by judicial proceeding against a
municipal government, has nevertheless in equity and justice,
in the larger sense of those terms, a right to indemnity and
compensation out of the public treasury." l
In a leading case in ]Srew York2 it was held that the legisla-
ture might legally levy a tax upon the taxable property of a
town, and appropriate the same to the payment of a claim
made by an individual against the town, although the claim had
been expressly rejected by the voters of the town at an election
authorized by an act of the legislature, and which declared
that their action should be final and conclusive. This case,
although carrying the doctrine of legislative power to the
farthest limit, has been generally approved, although it has
met with criticism by courts of high standing. It may be de-
fended, says Judge Cooley,3 upon the ground that it is the
right and duty of the state to see that the powers it confers
are not abused to the injury of those who have relied upon
41 Cal. 525: Tweighton v. San Fran- acuse, 19 N. Y. 1 !3: People v. Mayor
cisco, 42 Cal. 446; Nevada v. Harnp- of Brooklyn, 4 N. Y. 419; Thomas v.
ton, 13 Nev. 441. Leland, 24 Wend. 65 (1840); People v.
iCreighton v. San Francisco, 42 Dayton, 55 N. Y. 867 (1874); Guilford
Cal. 446. Citing Guilford v. Super- v. Supervisors, followed in Blandin
visors, 18 Barb. 615; Vassar v. George, v. Burr, 13 Cal. 343 (1859); N. Mo. R. R.
47 Miss. 713. The liability of this Co. v. McGuire, 49 Mo. 490 (18f2).
power to abuse is pointed out by Criticised in Weismer v. Vil&ge
Mr. Justice O'Brien, in Matter of of Douglas, 64 N. Y. 91, 21 Am.
Culler, 53 Hun (N. Y.), 534. As to Rep. 586. Approved, arguendo, in
the right of the corporation to an United States v. Baltimore & Ohio
ordinary trial, see Cooley, Taxation, R. R. Co., 17 Wall. 322 (1872); New
p. 687; Sanborn v. Rice Co., 9 Minn. Orleans v. Clark, 95 U. S. 654 (1877).
273; State v. Tappan, 29 Wis. 664; Same principle affirmed in Massa-
Plimpton v. Somerset, 33 Vt. 283; In chusetts in Carter v. Bridge Proprie-
re Pennsylvania Hall, 5 Pa. St. 204. tors, 104 Mass. 236 (1870). See, also,
2 Guilford v. Supervisors, 18 Barb. Cooley, Const. Lira. 380, 491, notes.
61 5 ; also 13 N. Y. 143 ; Brewster v. Syr- « Cooley, Taxation (2d ed.), 685.
§ 50.] LEGISLATIVE CONTROL. 41
them, and that when a political corporation has contracted a
debt or incurred an obligation, it has already taken the initia-
tory step in taxation; and has in effect given its consent that
the subsequent steps, so far as they may be essential to the dis-
charge of such debt or debts, may be taken.
But in Wisconsin an act of the legislature compelling the
taxation of a town to pay for a bounty to a volunteer and the
expenses of an unsuccessful suit to recover the same was held
invalid, on the ground that it was not for a legitimate public
purpose.1
Y. THE TERRITORY AXD BOUNDARIES.
§ 50. The general rule. — Unless restricted by the constitu-
tion, the legislature has general power to determine2 and alter
the territorial and boundaries of all public corporations.3 After
the territorial limits are once determined, it may "annex or au-
thorize the annexation of the contiguous or other territory ;
and this without the consent, or even against the remonstrance,
of the majority of the persons residing in the corporations or on
the annexed territory." * But some limitations have been placed
by the courts upon this general power. Thus, it has been held
that non-contiguous territory cannot be annexed;5 and that
o •/
an unoccupied tract of country cannot be made a part of a
village for the mere purpose of increasing the village revenue.6
As said in a recent well-considered case,7 the legislature has
power to extend the boundaries and thus enlarge the territorial
i State v. Tappan, 29 Wi& 664, 9 side, 70 CaL 461; Roby v. Sheppard
Am. Rep. 622. (W. Va.), 26 & E. Rep. 273. A ju-
2Roane v. Anderson, 89 Tenn. 259; dicial district may be abolished by
"VVashburn v. Oshkosh, 60 Wis. 453. transferring all the counties com-
3Blanchardv.Bissell,llOhioSt.96; prising it to another district. Aik-
Winona v. School District, 40 Minn, man v. Edwards, 55 Kan. 751, 30 L.
13, 3 L. R. A. 45; State v. Lake City, R. A. 149.
25 Minn. 404; Galesburg v. Hawkin- * Dillon, Mun. Corp., § 185.
son, 75 I1L 152; Martin v. Dicks, 52 5 Denver v. Coulehan, 20 Colo. 471,
Miss. 53, 24 Am. Rep. 661; Daly v. 27 L. R A. 751; Chicago, etc. Ry. Co.
Morgan, 69 Md. 460: Norris v. Waco, v. Oconto, 50 Wis. 189, 36 Am. Rep.
57 Tex. 635: Chandler v. Boston, 112 840.
Mass. SOO; Mt. Pleasant v. Beckwith, 6 Smith v. Sherry, 50 "Wis. 200;
100 U. S. 514; Morford v. Unger, 8 Princess Co. Com. v. Bladensburg,
Iowa. 82; Hewitt's Appeal, 88 Pa. St. 51 Md. 468.
55; Chicago, etc. Ry. Co. v. Lang- 7 Den ver v. Coulehan, 20 Cola 471,
lade, 56 Wis. 614: People v. River- 27 L. R. A. 751.
42 CREATION AND CONTROL OF PUBLIC CORPORATIONS. [§51.
limits of a city or town ; but such acts are to be interpreted
and applied according to the essential nature as well as the
subject-matter of the legislation. " Territory not in fact con-
nected with or adjacent to a city cannot be regarded as a part
of a municipal corporation, or as an addition thereto, in any
true sense of the term." It was consequently held that the
legislature had not the power to extend or enlarge the limits of
a specially chartered town or city by adding thereto non-con-
tiguous lands, — that is, lands entirely separated from the mu-
nicipality by intervening territory. The power to annex territory
may be delegated to the municipality,1 and it is then for the
court to determine whether the power has been properly exer-
cised.2
§ 51. What territory may le annexed. — The authority dele-
gated is generally to annex adjacent or contiguous territory.
Adjacent lands means those lands lying so near and in such
close proximity to the territory of a municipality as to be sub-
urban in their character and to have some unity of interest
with the city.3 Contiguous lands are such as are not separated
from the corporation by outside lands.4 Corporate limits may
reasonably and properly be extended so as to take in contigu-
ous lands —
1. "When they are platted and held for sale or use as town
lots.
2. Whether platted, or not, if they are held to be bought on
the market, and sold as town property when they reach a
value corresponding with the views of the owner.
i State v. Forest, 74 Wia 6 10; Kelly v. Eidson, 76 Tex. 302, 7 L. R. A.
v. Meeks, 87 Mo. 396; Strosser v. Ft. 733; State v. Bennett, 29 Mich. 451,
Wayne, 100 Ind. 443; Mendenhall v. 18 Am. Rep. 107; Vestal v. Little
Burton, 42 Kan. 570, 22 Pac. Rep. Rock, 54 Ark. 321, 11 L. R. A. 778.
558. In State v. Warner, 4 Wash. 8 State, Childs v. Village of Mftino-
773, 17 L. R. A. 263, it was held that tonka, 57 Minn. 526, 25 L. R. A, 755.
the annexation of territory to a city The cases are digested in a note to
is not an amendment of its charter this case.
within the meaning of the provision * Vestal v. City of Little Rock, 54
of the constitution which requires Ark. 321, 11 L. R. A. 778. Lands on
amendments to be submitted to the the opposite side of a river from a
vote of the people. To the contrary city may be contiguous to the city,
see Westport v. Kansas City, 103 Mo. Ibid. ; Denver v. Coulehan, 20 Colo.
141. 471.
2 Ewing v. State, 81 Tex 177; State
§ 52.] LEGISLATIVE CONTROL. 43
3. When they furnish the abode for a densely-settled com-
munity or represent the actual growth of a town beyond its
legal limits.
4. When "they are needed for any proper town purpose, as
for the extension of the streets or sewer, gas or water system,
or to supply places for the abode or business of its citizens, or
for the extension of needed police regulations.
5. "When they are valuable by reason of their adaptability
for prospective town uses. But the mere fact that their value
is enhanced by reason of their nearness to the corporation is
no ground for their annexation, unless it appears that the en-
hanced value is due to adaptability to town uses.
But city limits should not be extended so as to take in con-
tiguous lands —
1. When they are used only for agriculture or horticulture,
and are valuable on account of such use.
2. When they are vacant and do not derive special value
from their adaptability for city uses.1
§52. Illustrations. — There are many cases illustrating the
principle stated in the preceding section. Thus, a city com-
prising two miles of territory cannot incorporate an area of
ten square miles, including farms and unoccupied country.2
Three square miles of territory containing two settlements
separated by unoccupied farm lands, unconnected by lines of
buildings or improvements, cannot be incorporated.3 A ravine
dividing two areas of population is not such a natural barrier
as will prevent the including of both in one village.4 Lands
occupied by the owner exclusively as a florist and farmer, to
which no streets or town improvements extend, and which the
line of settlement has not reached, cannot be annexed and sub-
jected to municipal taxation.5 A boundary cannot be extended
so as to include territory already included in another city with-
out direct legislative authority, which must authorize the re-
striction of the territory of the other corporation.8
1 Vestal v. City of Little Rock, sln.re Lakeville, 7 Kulp. 84
supra, and cases cited in annota- 4In re Edgewood, 130 Pa. St. 348.
tion, 11 L. R. A. 77& 5 Vestal v. City of Little Rock,
2 State v. Eidson, 76 Tex. 302, 7 L. suprcu
R. A. 73a s Darby v. Sharon Hill, 112 Pa. St.
44 CREATION AND CONTROL OF PUBLIC CORPORATIONS. [§ 53.
§ 53. Property and debts upon division of territory. — The
right of the legislature to alter, divide or abolish public cor-
porations, and to make such a division of property and appor-
tionment of debts as is deemed equitable, is well settled.1 The
power is strictly legislative,2 and not subject to the control of
the courts. The apportionment may be made at the time of
the division of the territory or at a subsequent time. Where
the original act does not make a disposition of the common
property and debts, "the legislature may at any subsequent
time, by a later act, apportion them in such manner as seems
to be just and equitable." 8
"When a portion of the territory of a public corporation is
detached and created into a new corporation, or attached to
another existing corporation, and the legislature makes no
apportionment of property or debts, the old corporation retains
all the public property, including what falls within the limits
of the new corporation, and is responsible for all the debts con-
tracted by it before the separation, without claim to contribu-
tion.4 Thus, where the limits of a school district were so
changed as to leave the school-house within the territory cf
another district, the original district was held to retain its
ownership of the building.5 But, when the old corporation is
60. As to severance of territory in v. Richmond, 6 Me. 112, 19 Am. Deo.
which rival villages have grown 197; Hampshire Co. v. Franklin Co.,
up, see Ashley v. Calliope, 71 Iowa, 16 Mass. 75. It has been said thac
466. when territory is detached from a
1 Winona v. School District, 40 public corporation, the old corpora-
Minn. 13, 3 L. R. A. 45; Johnson v. San tion has no claim upon the corporate
Diego, 109 Cal. 468, 30 L. R. A. 178; property which falls without its new
State v. Harshaw, 73 Wis. 211; boundaries. Language to this effect
Granby v. Thurston, 23 Conn. 416; was used in Larimie Co. v. Albany
Olney v. Harvey, 50 111. 453; Larimie Co., 92 U. S. 307, and in Mt. Pleasant
Co. v. Albany Co., 92 U. S. 307; Darby v. Beckwith, 100 U. S. 514. But as
v. Sharon Hill, 140 Pa. St. 250. said by Mr. Justice Mitchell & Wi-
2 Bristol v. New Chester, 3 N. H. nonav. School Dist. Sup't: "It is a re-
524; Land Co. v. Oneida, 83 Wis. markable fact that these suggestions
649. of a limitation or qualification of the
8 Montgomery Co. v. Menifee, 93 rule are not only purely obiter, but
Ky. 33; Sedg wick v. Bunker, 16 Kan. the question is not discussed; no
498. reason is assigned and no authority
4 Johnson v. San Diego, 109 Cal. cited in its support, unless it be the
468, 30 L. R. A. 178, and cases cited; old case of North Hempstead v.
Perry Co. v. Conway Co. 52 Ark. 430, Hempstead, 2 Wend. 110."
6 L. R. A. C65. Contra, Bowdoinham 6 Winona v. School District, 40
§ 53.] LEGISLATIVE CONTROL. 45
abolished and new ones created out of its territory, the new
corporations are treated as successors of the old, and as such
liable for its debts and entitled to its property. Each of the
corporations will then take the public property which falls
within its limits.1
Minn. 13, 3 L. R. A. 45, 12 Am. St. Winona v. School District, supra;
Rep. 687. Demattos v. New Whatcom, 4 Wash.
i Shapleigh v. San Angelo, 167 U. S. 137, 29 Pac. Rep. 933 ; Stone v. Charles-
646; Mobile v. Watson, 116 U. S. 289; town, 114 Mass. 214,
CHAPTEE IY.
CONSTITUTIONAL LIMITATIONS UPON LEGISLATIVE POWER
OVER PUBLIC CORPORATIONS.
i 54. In general.
55. General laws.
56. The requirement of a "uni-
form system of govern-
ment"
57. Illustrations.
58. The requirement that "laws
of a general nature shall
have uniform operation
throughout the state."
59. Illustrations.
60. Local-option laws.
61. Classification.
62. Class containing but one mem-
ber.
63. Geographical conditions.
64. Population.
65. Illustrations.
66. Possible accession to a class.
67. Legislation regulating the
"business," "affairs" and
" internal affairs " of corpo-
rations.
68. The prohibition of special leg-
islation "where a general
law can be made applica-
ble."
69. Amendment or repeal of ex-
isting special charters.
§ 54. In general. — The evils incidental to special legislation
and the consequent lack of uniformity have led to the general
adoption of constitutional provisions prescribing the manner in
which the legislature shall exercise power over public corpo-
rations. Such provisions, in so far as they affect the manner
of creating, have been referred to in a former chapter.1 "Where
no such limitations are found, the legislature may exercise
its powers by either special or general laws. These constitu-
tional provisions vary in form and language. In some states
they refer only to private corporations, while in others they
refer to all corporations except those created for municipal
purposes. This phrase has no definite technical import. It has
been construed as applying to a corporation established for the
purpose of raising funds and conducting a public school.2 It
does not include a county3 nor a town.4 Neither a drainage
1 For a detailed examination of the
law of the subject considered in this
chapter, see Binney's Restrictions
upon Local and Special Legislation
in the United States.
2 Horton v. Mobile School . Com-
missioners, 43 Ala. 598.
* People v. McFadden, 81 Cal. 489.
4 Eaton v. Manitowoc, 44 Wis. 489.
55.]
CONSTITUTIONAL LIMITATIONS.
district1 nor a sanitary district2 are included in the provision
prohibiting the formation of "cities, towns and villages" by
special legislation. So, poor districts are not included within
a provision prohibiting special legislation " regulating the af-
fairs of counties, townships, wards, boroughs and school dis-
tricts."3
§ 55. General Jaws. — A general law is one which operates
equally and uniformly upon all persons, places and things
brought within the relations and circumstances for which it
provides;4 or, in the words of a leading Pennsylvania case,5 "a
statute which relates to persons or things as a class is a gen-
eral law ; while a statute which relates to particular persons or
things of a class is special." The mere grouping together in a
single act of a number of special or local laws does not make
a general law. Thus, an act providing that in eight designated
counties of the state a certain official should receive a fixed
annual salary named therein is a special law.6 The words
1 Owners of Lands v. People, 113
III 296.
2 Wilson v. Board, 133 IlL 143, 27 N.
E. Rep. 20a
3 Jenks Township v. Sheffield Town-
ship, 135 Pa. St. 400, 19 Atl. Rep. 1004.
See (Board of Police Commissioners)
State v. Covington, 29 Ohio St. 102.
A provision that "no corporation
shall be created or its powers in-
creased or diminished by special
law " applies to private corporations
only. Williams v. Nashville, 89 Tenn.
487, 15 S. W. Rep. 364; State v. Wil-
son, 12 Lea (Tenn.), 246. But see Cor-
porate Powers of Council Grove, 20
Kan. 619.
* State v. Ferris, 53 Ohio St 1, 30
L. R. A. 218; People v. Wright, 78
111. 338; State v. Cooley, 56 Minn.
543. In People v. Cooper, 83 III 585,
the court said: "The number of per-
sons upon whom the law shall have
any direct effect may be very few by
reason of the subject to which it re-
lates, but it must operate equally
and uniformly upon all brought
within the relations and circum-
stances for which it provides." In
McAunich v. 1L etc. R. Co., 20 Iowa,
338, the court said: "These laws are
general and uniform, not because
they operate upon every person in
the state, for they do not, but be-
cause every person who is brought
within the relations and circum-
stances provided for is affected by
the laws that are general and uni-
form in their operation upon all per-
sons in like situation, and the fact
of their being general and uniform
is not affected by the number of
those who are in the scope of their
operation." See, also, Welker v. Pot-
ter, 18 Ohio St. 85; Kingsbury v.
Sperry, 119 III 279; State v. Parsons,
40 N. J. L. 1.
* Wheeler v. Philadelphia, 57 Pa.
St. 338; State v. Spondee, 37 Minn.
322; Earley v. San Francisco, 55 CaL
489. .
6 Board of Freeholders v. Steven-
son, 46 N. J. L, 173.
48 CREATION AND CONTKOL OF PUBLIC COKPOKATIONS. [§ 56.
" laws of a general nature " have practically the same meaning.
A law is of a general nature if it affects the whole of a class of
persons or things.1
§ 56. The requirement of a "uniform system of government."
A constitutional provision to the effect that " the legislature
shall establish but one system of town and county government,
which shall be as nearly uniform as practicable," is mandatory.2
Its purpose is to prevent the legislature from establishing dif-
ferent systems of town and county government as well as to
prevent special legislation. But "where the legislature has
established a system of town and county government substan-
tially uniform throughout the state, it may be conceded that
its action is final upon the matter. The court in such case
would not attempt to review the action of the legislative body
and decide whether it might not have perfected a system more
nearly uniform. But when a law like the one before us breaks
the uniformity of a system already in operation, it seems to
us that it is a proper exercise of judicial power to declare that
the act is void because it departs from the rule of uniformity
which the constitution enjoins.3 The requirement of a uniform
system of government does not prohibit the classification of
public corporations for legislative purposes ; 4 but all in the
same class must possess the same power and be subject to the
same restrictions, as " a system of municipal government in
which cities of the same class may have dissimilarity in char-
1 Brooks v. Hyde, 37 Cal. 866. shall be as nearly as practicable uni-
2 State v. Dousman, 28 Wis. 541, form throughout the state," was held
per Lyon, J. ; State v. Riordan, 24 to be directory only. Rhodes, J., said :
Wis. 484; State v. Supervisors, 25 "We have no hesitation in saying
Wis. 339; Land, etc. Co. v. Brown, that policy forbids the attempt on
73 Wis. 294, 3 L. R. A. 472. See, also, the part of the judiciary, at this late
State v. Boyd, 19 Nev. 43. The pro- day, to determine how far it is prac-
vision in the constitution of Illinois ticable to maintain uniformity in
that " the general assembly shall the system of county governments,
provide by a general law for a town- They are now so diverse in most re-
ship organization," etc., has no ref- spects, except the names of the bodies
erence to counties. Leach v. People, invested with governmental func-
122111.420. In New Jersey " town " tions, that scarcely any two eoun-
includes cities. State v. Parsons, 40 ties have governments similar in all
N. J. L. 1. In People v. Lake County, respects."
33 Cal. 487, a provision "That the » State v. Riordan, 24 Wis. 484.
legislature shall provide a system of * Lake v. Palmer, 18 Fla. 501.
county . . . government which
§56.]
CONSTITUTIONAL LIMITATIONS.
acter of organization as well as different powers is not a uni-
form system, within the meaning of the constitution." l The
mere fact that diverse results may flow from the execution of
granted powers of local government does not render the ena-
bling statute special or local.2 If the same powers are pos-
sessed by all municipalities of the same class, the law is gen-
iMcConihe v. McMurray, 17 Fla,
238; State v. Stark, 18 Fla. 255.
2 In re Petition of Cleveland, 52
N. J. L. 188. Said Van Syckel, J.:
"Uniformity in results cannot co-
exist with the right of local self-
government until all men shall be of
one mind. No one will assert that
an act is local or special which gives
to all the cities of this state the
right to establish, by ordinance, the
mode in which their subordinate of-
ficers shall be elected. Under such
a statute one city might make the
tenure of office a term of years, an-
other during good behavior, and a
third at the will of the common
council. Such diverse results in the
execution of the granted power, ob-
viously, could not outlaw the act
of the legislature. The authority
granted to all is the same; the dis-
similarity is in its use — a dissim-
ilarity inherent in the idea of local
government. The uniformity ex-
acted by the constitutional mandate
must be sought for, not in the re-
sults which flow from the free, un-
hampered exercise of the granted
power of local government, but in
the fact that every locality is af-
forded a like right to adopt and ex-
ercise, in its own way, the same
powers which are bestowed upon
every other like political body. To
the one no privilege must be offered
for acceptance which is not ex-
tended to the other. The authority
given must be the same; it may be
executed in a different way, or in
the same way, at the option of the
recipient. That is the uniformity
to which the judicial declarations
4
in the adjudged cases in this state
must be referred. One of the con-
spicuous evils at which this consti-
tutional amendment was aimed was,
in my judgment, this: that prior to
the amendment a few persons could
go before the legislature and secure
the passage of a special law to pro-
mote their own purposes, which
might be obnoxious to the body of
citizens. In such event, the only
remedy was by an appeal to a subse-
quent legislature, and that might be
too late to wholly repair the mis-
chief. Such enactments are now
forestalled by the fact that they can-
not be made applicable without
being submitted to the approval of
the entire body of voters. In this
way the people of every city are left
free to select the mode in which
they will regulate and conduct their
local affairs, and it is this which im-
presses such legislation with the
character of general, and not special,
legislation. Gauged by this stand-
ard, there is no infirmity in the leg-
islation which is the subject of this
controversy. It applies to the entire
class; there is no exception. It is
held out to the free acceptance of
all, and is capable of being accepted
or rejected by every city in the
state. In determining whether an
act is general or special, we must
regard the time of its enactment,
If it applies to all cities then in ex-
istence, it seems to be a contradic-
tion, in terms, to say that it is spe-
cial.' To be special, it must exclude
some; if it excludes none, and ex-
pressly embraces all, it must be gen-
eral"
50 CREATION AND CONTROL OF PUBLIC CORPORATIONS. [§ 57.
eral. It has been held that such a provision is not intended
to secure uniformity in the exercise of delegated police pow-
ers.1 As a matter of course, the legislature cannot do indi-
rectly what it cannot do directly. Hence, it cannot enact a
special law to legalize a defective incorporation under the gen-
eral law, without violating the provision that the legislature
shall establish a uniform system of county, town and munici-
pal government.2
§ 57. Illustrations. — Under the provision requiring uniform-
ity.— An act which provides for a county board of supervisors
of eight members in a certain county, while under the general
law in force in all parts of the state such boards have three
members, violates the provision requiring uniformity.3 Where
by an existing general law the power was conferred upon all
county boards " to build and keep in repair county buildings,"
it was held that an act appointing three commissioners " to su-
perintend the erection of a court-house in the county of M."
was invalid.4 So, an act restricting the power of the super-
visors of Milwaukee county to act upon claims against the
county and enter into contracts in its behalf without previous
action thereon by the county auditor was held void as an at-
tempt to take from that board important powers, which it pos-
sessed under the general statute of the state.8 An act relating
to county aid in the construction of bridges, which provided
1 Paul v. Gloucester, 50 N. J. L. 585. uniform as practicable, because it is
2 Enterprise v. State, 29 Fla. 128, 10 self-evident that this power might
So. Rep. 740. be vested in the county boards in all
3 State v. Riordan, 24 Wis. 484. the counties. Independent of this
4 Said Paine, J. : " It takes an im- act, it was so vested in fact. There
portant power of the county board was, under the existing law, coin-
in that county (Milwaukee), and con- plete uniformity." State v. Super-
fers it upon special commissioners visors, 25 Wis. 339. «£
designated by the legislature. That 5 State v. Dousman, 28 Wis. 541.
it is not a uniform system to provide In McRae v. Hogan, 39 Wis. 529, an
that in one county the power to act which attempted to take from
build the county buildings shall be the possession and control of the
vested in special commissioners se- town officers in Chippewa county a
lected by the legislature, while in portion of the moneys raised in their
other counties the same power is towns for highway purposes, and
vested in the boards of supervisors intrust its expenditure to the county
elected by the people, is obvious. It board, contrary to the general law,
is equally obvious that it is not as was held void.
§ 53.] CONSTITUTIONAL LIMITATIONS. 51
that " this act shall not apply to the county of Grant," violates
the requirement of uniformity.1 But " the power to construct
drains is in no proper sense a part of the usual powers belong-
ing to town and county government, but is a special authority
given for a particular purpose, which may be conferred upon
any persons or body upon which the legislature may see fit to
confer it." Hence, an act providing for lowering the ordinary
level of water in certain lakes in a designated county and for
the drainage of wet and overflowed lands in any part of said
county, different from the system of drainage in the remainder
of the state, is valid.2
Under the provisions requiring uniformity in legislation af-
fecting public corporations, an act which tends to remove exist-
ing diversity is valid. Thus, where the peculiarities which
the act sought to abolish existed in but one county, it was said
that " whenever an act of the legislature is general in its terms,
and the only effect is to remove in some degree the differences
in the various regulations of the internal affairs of towns or
counties, and to subject those internal affairs to the operation
of a general law, the act is not prohibited by the constitution,
but is in strict accordance with the command of that instru-
ment, which expressly enjoins upon the legislature the passage
of laws for such cases." *
§ 58. The requirement that"laivs of a general nature shall
Tiave uniform operation throughout the state." — This provision
is found in the constitutions of many of the states.4 Its effect
is to prevent the legislature from restricting the operation of
laws of a general nature to any part of the state less than the
whole.5 As it applies to general laws only, it does not pro-
hibit proper local legislation.6 It is construed as meaning " not
that general laws must act alike upon all subjects of legislation,
or upon all citizens and persons, but that they shall operate uni-
1 La Valle v. Supervisors, 62 Wis. 5 Costello v. Wyoming, 49 Ohio,
376. 202, 30 N. E. Rep. 6ia
2 Bryant v. Robbins, 7 Iowa, 258. « State v. Judges, 21 Ohio St 1;
8 Freeholders v. Stevenson, 46 N. J. State v. Covington, 29 Ohio St 102;
L. 173. Ruffner v. Commissioners, Disn.
4 For its history see McGill v. State, (Ohio), 196 ; Cricket v. State, 18 Ohio
34 Ohio St. 228. St 9; People v. C. P. R, Co., 43 CaL
432,
52 CEEATION AND CONTROL OF PUBLIC CORPORATIONS. [§ 59.
formly or in the same manner upon all persons who stand in
the same category ; that is to say, upon all persons who stand
in the same relation to the law in respect to the privileges and
immunities conferred by it, or the acts which it prohibits." l It
does not prevent a proper classification of persons and subjects
for purposes of legislation, as laws which operate uniformly
upon members of a class have uniform operation. Of course,
a law which is in full force in every part of the state has a uni-
form operation throughout the state.2
The taking of a class out of the general terms of a statute
by an exception is as obnoxious to the restraint imposed by this
provision as the passage of a special act affecting and relating
to the excluded corporation only. Thus, a provision in an act
relating to police, that it " shall not apply in and to cities
commonly known as seaside and summer resorts," renders the
act invalid.
§ 59. Illustrations. — Whether a statute is of a general nat-
ure depends not upon its form, but upon its application to the
subject-matter.3 A law may thus be special in form, and yet
come within this provision. The courts will go behind the
form of the enactment in order to determine its character. If
it could be assumed merely from the fact of the enactment of
a statute that the legislature had information showing that
there was a necessity for such legislation in respect to the par-
ticular locality, all such legislation would have to be upheld
regardless of the subject-matter.4 On the other hand, a law
may relate to a subject-matter which is general, and still not
be of a general nature. The subject may be general, while
the purpose of the act may be special and local.5 Thus, the
subject of common schools is of a general nature, but it is
held in Ohio that a special school district may be formed from
territory within the limits of the township, without conflicting
with a constitutional provision.6 The following acts have been
1 Ex parte Smith, 38 Cal. 702; Leep « State v. Ellet, 47 Ohio St. 90, 23 N.
v. St. Louis, Iron Mt. Ry. Co., 58 Ark. E. Rep. 931.
407, 23 L. R. A. 264; In re Oberg, 21 » State v. Shearer, 46 Ohio St.' 275,
Oreg. 406, 14 L. R. A. 577. 20 N. E. Rep. 335.
2 State v. Ferris, 53 Ohio St. 1, 30 6 State v. Powers, 38 Ohio St. 54
L. R. A. 218. Such laws, although dealing with a
3 State v. Ellet, 47 Ohio St. 90, 23 N. general subject-matter, are intended
E. Rep. 931. to meet purely local conditions and
§59.]
CONSTITUTIONAL LIMITATIONS.
53
held invalid because contravening the constitutional require-
ment that all laws of a general nature must have uniform
operation throughout the state : An act relating to salaries of
county officers in counties of certain classes, as it prevented
the county government act, which was essentially a law of a
general nature, from having uniform operation.1 An act pro-
viding that the salaries fixed by the act should take effect at
different times in different counties.2 An act providing for the
construction, improvement and repair of sidewalks in or lead-
ing out of villages, because the subject-matter was of a charac-
ter that concerned the inhabitants of every village in the state.1
But acts designed to regulate the amount of compensation of
local officers, regulating the police force in the city of Cincin-
nati through a board of commissioners to be appointed by the
governor;4 conferring power upon county commissioners to
erect public buildings; 5 requiring county commissioners to sub-
scribe on behalf of the county to the stock of a railroad com-
pany;6 providing a special mode of selecting jurors in a des-
ignated county,7 have been held to be of a local nature and
not affected by this provision.
requirements. In McGill v. State,
34 Ohio St. 228, the court said: "It
is easy to comprehend that a law de-
fining burglary or bigamy and its
penalty, or regulating descent and
distribution, or prescribing the ca-
pacity requisite for the testament-
ary disposition of property, regulat-
ing conveyances, or prescribing a
rate of interest for the use of money,
and others of similar effect and oper-
ation, are laws of a general nat-
ure requiring a uniform operation
throughout the state. To discrim-
inate between localities or citizens
in the enactment of laws of such a
nature would be to grant privileges
or impose burdens of a character
which it was the clear purpose of the
constitution to provide against. But
that a law may be general and con-
cern matters purely local or special
in their nature, or may be local or
special and relate to a matter that
may be made the subject of a gen-
eral law, not only rests upon sound
reason but is well supported by au-
thority." But in State v. Ellet, 47
Ohio St. 90, 23 N. R Rep. 931, the court
said: "The local statute must be
upon a subject in its nature local
as well as local in its operation."
1 Dougherty v. Austin, 94 CaL 601.
» Miller v. Kister, 68 CaL 142,
8 Crickett v. State, 18 Ohio St 9;
Hart v. Murray, 48 Ohio St 605.
4 State v. Covington, 29 Ohio St.
102.
6 Ruffner v. Com., Disn. (Ohio), 196.
«Cass v. Dillon, 2 Ohio St 617.
"McGill v. State, 34 Ohio St 223.
In this case it was not doubted that
the matter of selecting jurors was a
general subject in which the people
of the state at large was interested,
and that since the organization of
the state it had been provided for
by the general law, so that the law
providing a special mode of select-
ing jurors in that county was one
54 OEEATION AND OONTKOL OF PUBLIC COKPORA.TIONS. [§ 60.
§ 60. Local-option laws. — Statutes allowing the people of a
particular locality to elect between different systems of police
regulation or local government necessarily tend to prevent gen-
eral laws from having a uniform operation throughout the
state. In some states it is held that the restrictions upon local
and special laws have no effect upon these subjects ; at least so
long as the communities of the same class have the same op-
tion.1 In Florida it was held that an option, although granted
to every member of a class, violated the constitutional provis-
ion. The court said : 2 " The government of each class must
be the same, and such must be the result of the action of the
legislature, independent of the contingency of local discretion
or option in the premises." In Pennsylvania it is held that
changes in the general municipal corporation law cannot be
limited to such cities as adopt the new law.3 So, a law repeal-
ing a general fence law, but to take effect only in such counties
as should vote for the repeal of the general law, is invalid.4
The great weight of authority supports the principle that the
legislature may permit a locality to determine whether intoxi-
cating liquors shall be sold within its limits. If the law is
complete when it comes from the hands of the legislature, it is
a general law operative throughout the state; thus, a statute
permitting a certain penalty in a prohibitory liquor law to be
suspended in any city upon the filing of the written consent of
a certain proportion of the voters is not local or special ; and
it does not tend to produce diversity of laws in the different
parts of the state. The court said : " The act is complete in
itself, requires nothing further to give it validity, and does
not depend upon the popular vote of the people." 5 An act which
treating of a general subject already pie v. Hoffman, 116 I1L 487; People
embraced in general laws, making v. Cooper, 83 111. 585.
provisions applicable to all counties 2 McConihe v. State, 17 Fla. 238.
in the state; but the court held that 3 Commonwealth v. Den worth, 145
this act was not a law of a general Pa. St. 172; People v. Cooper, 83 111.
nature requiring uniformity of oper- 585.
ation throughout the state, but was 4 Frost v. Cherry, 122 Pa. St. 417.
designed to meet a special want in 5 State v. Forkner, 94 Iowa, 733, 28
a particular county and was not in L. R. A. 206, reviewing many author-
conflict with the constitution. ities; State v. Weir, 33 Iowa, 134, 11
1 Paul v. Brewster County, 40 N. J. Am. Rep. 115. For a discussion of the
L. 585; In re Cleveland, 52 N. J. L. submission of state and local laws
188; State v. Pond, 93 Mo. 606; Peo- to the vote of the people, see Ober-
§61]
CONSTITUTIONAL LIMITATIONS.
tends to diminish diversity and establish greater uniformity
in the system is not invalidated by a provision that it shall be
operative only on such members of the class to which it relates
as shall accept its provisions.1 But where the exercise of this
discretionary power would tend toward diversity instead of
uniformity, as where corporations existing under the control
of the general law would by accepting the act become mem-
bers of a class by themselves, the act is invalid.8
§ 61. Classification. — The legislature may, for purposes of
legislation, divide the subject-matter of legislation into classes
and then legislate for each class as a whole.3 But a valid classi-
fication must have a basis in reason, and not be adopted arbi-
trarily as a mere cover for special legislation under the form
of general legislation.4 " The underlying principle of all cases,"
rule, nor furnish a test by which to
decide whether the law is local or
general."
2Scranton's Appeal, 113 Pa. St. 190.
Affirmed in Com. v. Halstead (Pa.),
7 AtL Rep. 221.
'State v. Cooley, 56 Minn. 540; In
re Washington Street, 132 Pa. St 257,
7 L. R. A. 193; Van Riper v. Parsons,
40 X. J. L. 123; Rutgers v. New Bruns-
wick, 42 X. J. L. 51 ; State v. Trenton,
42 N. J. L, 486; State v. Board of
Freeholders, 52 N. J. L, 512, 19 AtL
Rep. 972; Worcester National Bank
v. Cheney, 94 HI. 430; Devine v. Com-
missioners, 84 I1L 590; Pritchett v.
Stanislaus Co., 73 Cal. 310; State v.
Berka (Neb.), 30 N. W. Rep. 267; State
v. Spaude, 27 Minn. 322, 34 N. W. Rep.
164; Edmonds v. Herbrandson. 2 N.
D. 270, 50 N. W. Rep. 970; Wheeler v.
Philadelphia, 77 Pa. St 338; Kilgore
v. Magee, 85 Pa. St. 401 ; City of'Scran-
ton v. Whyte, 148 Pa. St 419, 23 AtL
Rep. 1043; Commonwealth v. Macfer-
ron, 152 Pa. St 244, 25 Atl. Rep. 5o7;
Appeal of Ayers, 122 Pa. St 266.
"Legislation which applies to all
members of a class is not local or
special, but general." Reeves v. Con-
tinental R, Co., 152 Pa. St 153, 25 AtL
Rep. 517.
4 Edmonds v. Herbrandson, 2 N. D.
holtzer, The Referendum in Amer-
ica, Phila., 1893.
i Reading v. Savage, 124 Pa. St
328. In Re Cleveland, 52 N. J. L. 188,
a law authorizing the mayors of all
cities of the state to appoint the
principal municipal officers, to be-
come operative in such cities as elect
to accept it, was held general. In
Stanfield v. State, 83 Tex. 370, 18 S. W.
Rep. 577, an act authorizing the com-
missioners' court to abolish the office
of county superintendent " when, in
their judgment, such court may deem
it advisable," was held general, as it
related to the entire state. In State
v. Hunter, 38 Kan. 578, 17 Pac. Rep.
177, an act providing for the appoint-
ment of a board of police commis-
sioners by the executive council,
upon the petition of two hundred
bonafide householders, or when the
council shall deem it advisable for
the better government of such cities,
was held to be a general law. In State
v. Pond, 93 Ma 608, 6 S. W. Rep. 469,
Norton, J., said: "The fact that one
or more counties, or one or more
cities or towns, may by a majority
vote put the law in operation in said
county or counties, cities and towns,
and other counties, cities and towns
may not do so, does not affect the
56 CREATION AND CONTROL OF PUBLIC CORPORATIONS. [§ 61.
says Mr. Justice Sterrett,1 " is that all classification with a view
of legislating for either class separately is essentially unconsti-
tutional, unless a necessity therefor exists, a necessity spring-
ing from manifest peculiarities, clearly distinguishing those of
one class from each of the other classes, and imperatively de-
manding legislation from each class separately that would be
useless and detrimental to the others. Laws enacted in pur-
suance of such classification and for such purposes are, properly
speaking, neither general nor special." There must be some-
thing more than a mere designation of the subjects of a class.
The characteristics which serve as the basis of classification
must be of such a nature as to make the objects so designated
peculiarly require special legislation. There must be a substan-
tial distinction, having reference to the subject-matter of the
proposed legislation, between the objects and places embraced
in such legislation and the objects or places excluded." 2 The
following are illustrations of cases in which the basis of classi-
fication was improper : Counties having a population of sixty
thousand in which the fees allowed county clerks are turned
over to the county.3 Seaside resorts where there is taxable
property to the amount of $10,000 embraced within an area
not exceeding two square miles.4 Seaside resorts governed by
municipalities, the purpose being to take from a township com-
mittee, and to confer upon the borough commissioners, the
right of expending the road taxes.5 Cities and towns having
race courses.6 Municipalities governed by commissioners.7 Cit-
270, 14 L. R. A. 725; State v. Cooley, visitors. . . • If taxable property,
56 Minn. 540. irrespective of population, be a
!Ayer's Appeal, 122 Pa. St. 266,2 proper classification on which to
L. R. A. 577. base a grant of municipal powers of
2 State v. Hammer, 42 N. J. L. 435; the scope of those granted by this
Wheeler v. Philadelphia, 77 Pa. St. act, such property presents the same
338; Ayar's Appeal, 122 Pa. St. 266. characteristics wherever situated."
3 Ernst v. Morgan, 39 N. J. Eq. 391. State v. Philbrick (N. J.), 15 At* Rep.
4 State v. Somers' Point, 52 N. J. L. 579.
33, 6 L. R. A. 57. Said Depue, J.: 8Ross v. Winsor, 48 N. J. L. 95;
" Municipal powers and franchises, State v. Elizabeth, 57 N. J. L. 71, 23
such as this act confers, are as appro- L. R. A. 525.
priate to places in an inland situa- 6 State v. Elizabeth, 56 N. J. L. 71,
tion as to those located on the sea- 23 L. R. A. 525.
shore, and are as suitable to localities 7 Long Branch v. Sloane, 49 N. J. L.
inhabited or frequented by other in- 356.
divirluals as to resorts for summer
§62.]
CONSTITUTIONAL LIMITATIONS.
57
ies and towns in which the streets have been lighted by legis-
lative authority.1 Townships not containing an incorporated
city or borough.* Cities of not less than ten thousand inhab-
itants divided into not less than two nor more than three
wards.3 Counties where the clerks are at the time of the pas-
sage of the law paid an annual salary.4 Cities of more than
fifteen thousand inhabitants not having a board of excise, nor
where licenses are granted by court of common pleas.5 Cities
where a board of assessment and revision of taxes is in existence.6
§ 62. Class containing ~but one member. — The basis of classi-
fication must be characteristics and not numbers. There may
be a public corporation in the state with such characteristics
as to effectually distinguish it from all others. The fact that
an act at the time of its passage affects but one corporation
does not make it a special law, if there is nothing to prevent
other corporations from becoming members of the class when
they acquire the necessary population or comply with the other
conditions.7
1 Van Giesen v. Bloomfield, 47 N. J.
L.422.
2 State v. Township Com. of North-
ampton, 51 N. J. L. 402, 14 Atl. Rep. 587.
In Dobbins v. Northampton, 5 N. J. L.
496, the court said: "The classifica-
tion on which this act rests is a
classification setting apart town-
ships not having an incorporated
city or borough within the township
bounds from the other townships in
this state. The subject of the legis-
lation — grading, making and work-
ing roads — is one that is common to
all townships in this state as well as
to the township set apart for this
scheme of legislation."
8 Randolph v. Wood, 49 N. J. L. 85.
<Gibbs v. Morgan, 39 N. J. Eq. 136.
» Closson v. Trenton, 48 N. J. L. 438.
6 Hammer v. State, 44 N. J. L. 667;
Van Giesen v. Bloomfield, 47 N. J. L.
42-2 : Freeholders of Hudson v. Buck,
51 N. J. L. 155: State v. Wood, 49 N.
J. L. 85, 7 AtL Rep. 236; City of New
Brunswick v. Fitzgerald, 48 N. J. L.
457. 8 AtL Rep. 729; State v. Simon, 53
N. J. L. 550, 22 Atl. Rep. 120; Turner
v. Fish, 19 Nev. 295; County of San
Luis Obispo v. Graves, 84 CaL 71.
estate v. Toledo, 48 Ohio St. 112, 11
L. R. A. 729 ; Govern v. State, 48 N. J. L.
612. 9 Atl. Rep. 577; Ex parte Wells, 21
Fla. 280: State v. Donovan. CO Xev. 75.
15 Pac. Rep. 783; State v. Woodbury,
17 Nev. 337; State v. Graham, 16 Neb.
74; Walker v. Cincinnati, 21 Ohio
St. 14; Marmet v. State, 45 Ohio St
63; Wheeler v. Philadelphia, 77 Pa.
St. 338; Commonwealth v. Patton, 88
Pa. St. 258; Kilgore v. Magee, 85 Pa.
St 401; State v. Tolle, 71 Mo. 645;
Ewing v. Hoblitzelle, 81 Mo. 64;
Rutheford v. Heddens, 82 Mo. 388;
Darrow v. People, 8 Colo. 417; Mc-
Inerney v. Denver (Colo.), 29 Pac.
Rep. 516. In Van Riper v. Parsons,
40 N. J. L. 123, the court said: "The
law in all its provisions is general,
broad enough to reach every portion
of the state, abating legislative com-
missioners for the regulation of mu-
58 CREATION AND CONTROL OF PUBLIC CORPORATIONS. [§§ 63, 64.
§ 63. Geographical conditions. — "Whether geographical con-
ditions are a proper basis for classification depends upon the
nature of the legislation. Such distinctions necessarily exclude
the possibility of accession to the class. A classification of
counties and towns with reference to the number and geo-
graphical location of the cities they contain cannot be sus-
tained.1 But for the purpose of legislation authorizing the
construction of drives upon the beach, a classification based
upon location upon the seashore would be proper.2
§ 64. Population. — For the purpose of appropriate legisla-
tion, population furnishes such a distinguishing characteristic
as to render it a proper basis for classification. The needs of
a great city are different from those of a small city or village.
The organization of local government and the management of
municipal affairs are unlike. Mere size, as measured by the
number of inhabitants, necessarily creates conditions which call
for different kinds of legislation. Hence, population has been
universally recognized as a proper basis for the classification
nicipal affairs wherever they exist.
Such commissions are distinguished
from other sorts of municipal gov-
ernments by characteristics suffi-
ciently marked and important to
make them clearly a class by them-
selves, and upon the whole of this
class this law operates equally by
force of terms which are restricted
to no locality. A law so framed is
not a special or local law, but a gen-
eral law, without regard to the con-
sideration that within the state there
happens to be but one individual of
the class or one place where it pro-
duces effect." In West Chicago Park
Commissioners v. McMullen, 134 I1L
171, 25 N. E. Eep. 676, the court said:
" If it is true, as suggested, that the
act is applicable as to conditions ex-
istingin a single cityin the state, that
fact does not necessarily render it
local or special legislation. It is gen-
eral in its terms and applies to all
cities of the state which, at the time
of its passage, had parks under the
control of park commissioners, or
that might, at any time thereafter,
so have parks." The decision in De-
vine v. Cook County, 84 111. 590, was
controlled not by the fact that it
could apply to but one city in the
state, but that it was so limited in
duration as to convince the court
that it was physically impossible for
any other city to come within the
class during the existence of the
law."
1 Scowden's Appeal, 96 Pa. St. 422.
2 State v. Wright, 54 N. J. L. 130, 23
Atl. Rep. 117; Anderson v. Trenton,
42 N. J. L. 486. In State v. Hammer,
42 N. J. L. 440, it was said, by* way
of illustration, that "a sample of
the other or legitimate kind would
be signified in a law that should
give to all cities in the state situ-
ated on tide- water the privileges of
using such water in connection with
their sewers." But see Ross v. Win-
sor, 48 N. J. L. 95.
§ 65.] CONSTITUTIONAL LIMITATIONS. 59
of public corporations. The cases supporting this are very
numerous.1
§ 65. Illustrations. — The following acts have been held con-
stitutional : An act providing that in cities having a population
of less than trc-elve thousand the term of office of councilman
should be for as many years as there are councilmen in each
ward.2 An act providing for a police court in all cities of the
second class ; that is, containing a population of not less than
fifty thousand or more than one hundred thousand.* An act
fixing fees and salaries of county officers in counties having a
designated population.4 An act regulating the construction of
water-works and streets in cities having a certain designated
population.5 An act prescribing a sewerage system in cities
containing over thirty thousand and under fifty thousand in-
habitants.6 An act prescribing the number of school directors
" in all cities of this state now having or hereafter attaining a
population of over three hundred thousand inhabitants." 7 An
act requiring the judges to let contracts for publishing judicial
notices in cities having over one hundred thousand inhabitants.8
But population is not a proper basis of classification for legis-
lation authorizing the issue of bonds to pay a floating debt, as
Un re Passaic. 54 N. J. L. 156, 23 Atl. quired in the management of public
Rep. 517; Welkes Y. Potter, 18 Ohio St. works in large and small cities, and
85; Weinman v. Pass. R. Co., 118 Pa. population, hence, becomes a proper
St. 192. The court will take judicial basis for classification. As said by
notice of what the population of a Chief Justice Beasley, In re Haynes,
county was according to the last 54 N. J. L. 6: "In a small city the
census. Worcester National Bank supervision and control of the streets
v. Cheney, 94 I1L 430. and of the water supply may well be,
2 Randolph v. Wood, 49 N. J. L. 85. as it has been, left in the hands of
3 A difference in population re- those intrusted to administer gen-
quires different police regulations, erally its affairs; but all experience
State v. Caminade, 54 N. J. L. 135, 25 has shown that such matters in large
Atl. Rep. 933 : People v. Hensha w, 76 cities can be properly managed only
CaL 436, 18 Pac. Rep. 413 (Probate by independent boards, duly organ-
Courts); Knickerbocker v. People, ized for the purpose."
102 111. 213: Rutgers v. New Bruns- 6 Rutherford v. Hamilton, 97 Mo.
wick, 42 X. J. L. 51. 543.
4 Board v. Leahy, 24 Kan. 54 7 State v. Miller, 100 Mo. 439; State
5 Warner v. Hoagland, 51 N. J. L, v. Macklin (Mo.), 13 S. W. Rep. 680.
62. There is a real and essential dif- 8 State v. Tolle, 71 Mo. 645.
ference between the methods re-
60 CKEATION AND CONTROL OF PUBLIC COKPOKATIONS. [§ 66.
the object of the law has no natural relation to the basis of
classification adopted.1
§ 66. Possible accession to a class. — Where the classification
is based upon conditions and facts whereby other corporations
of like nature are excluded from ever coming within the class,
it is necessarily arbitrary, and legislation based upon it is not
general.2 Thus, an act applying only to counties where there
were cast more than one thousand one hundred and fifty votes
and less than one thousand three hundred and fifty votes at a
specified election is invalid.3 So an act granting courts power
to grant licenses to inns and taverns in cities having a desig-
nated population by the census of 1875.4 So an act regulating
the relocation of county seats in all counties wherein at the
date of the act the court-house and jail was not worth a desig-
nated amount of money.5 So an act applying to cities in which
a German newspaper had been published for three years before
its passage, but not applying to cities which should thereafter
cc>me within the qualification.6 In each of these cases the clas-
sification was arbitrary, and it was impossible in the nature of
things that there should be any accessions to the class. The
same difficulty may arise when the life of a statute is made
so short as to render it impossible for any other city to acquire
the necessary population ; and in such a case the court will
take judicial notice of the fact that no city can possibly grow
so rapidly.7
1 Anderson v. Trenton, 42 N. J. L. consideration in State v. Hammer,
486. 42 N. J. L. 435, applied to any city
2 Commonwealth v. Patton, 88 Pa. " where a board of assessment and
St. 258; Rutgers v. New Brunswick, revision of taxes now exists," and
44 N. J. L. 551; Nichols v. Walter, 37 the court said: "The result, there-
Minn. 264; State v. Mitchell, 31 Ohio fore, is that the act was intended to
St. 592; State v. Pugh, 43 Ohio St. apply to those two cities alone, and
98; State v. Anderson, 44 Ohio St. 247; the legal effect of the law a? now
State v. Ellet, 47 Ohio St. 90, 23 N. E. constituted is the same as though it
Rep. 931 ; State v. Smith (Ohio), 26 had in express terms declared that
N. E. Rep. 1069; Woodard v. Brien, it was not to be operative through
14 Lea (Tenn.), 520. See State v. the state at large, but only in the
Herrmann, 75 Mo. 340. cities of Elizabeth and Newark."
8 State v. Boyd, 19 Nev. 43. « State v. Trenton, 54 N. J. L. 444,
4Zeigler v. Gaddis, 44 N. J. L. 365; 24 Atl. Rep. 478.
Adams v. Smith, 6 Dak. 94. ? in Devine v. Cook Co., 84 111. 590,
5 Edmonds v. Herbrandson, 2 N. D. in construing an act which, by its
270, 50 N. W. Rep. 970. The act under terms, applied only to counties hav-
§67.]
COXSTITUTIOXAL LIMITATIONS.
61
§67. Legislation regulating Hie "business" "affairs" and
"internal affairs" of corporations. — In some states we find a
provision that the legislature shall pass no local or special law-
regulating the business, affairs or internal affairs of public cor-
porations.1 Yarious constructions have been given these terms.
In Indiana an act which created a court for a particular county
was held not to regulate county business.2 In Pennsylvania
an act which authorized the holding of special sessions of the
courts in a certain county in a place other than the county
seat was held invalid as an attempt to regulate county busi-
ness.8 And subsequently, after the word "affairs" had been
substituted for the word "business" in the constitution, it was
held that an act to ascertain and appoint the fees to be re-
ceived by certain county officers regulated the affairs of such
counties.4 So an act for regulating and maintaining fences
and providing for a county election to determine the adoption
or rejection of a repealing act was held invalid for the same
reason.5
These provisions do not limit the power of the legislature to
ing a population of over one hundred
thousand inhabitants, and which ex-
pired within six years from the date
of its passage, the court said that it
would take judicial notice of the
fact that Cook county was the only
county in the state containing over
one hundred thousand inhabitants,
and that it could not be expected,
" by any ordinary influx of popula-
tion, that any other county will have
that population within the brief
period fixed for the duration of this
law, viz., within a period of six years
from the time the act should take
effect. . . . The court will take
judicial notice not only that no other
county in the state than Cook county
had one hundred thousand inhabit-
ants, but also that, without some
supernatural interposition, no other
county in the state can have one
hundred thousand inhabitants until
after July 1, 1879. But it seems to
me it is going too far to hold that
the mere fact that a statute is ap-
plicable only to counties having one
hundred thousand inhabitants ren-
ders it a local law. In the course of
time several counties may have that
number. A law intended to be per-
petual may not, in my judgment, be
subject to objection, although thus
limited." In Topeka v. Gillett, 32
Kan. 431, an act which excluded all
cities from its operation which failed
to take advantage of its provisions
within ten days after its taking
effect, and there being but three
cities which could possibly possess
the necessary qualifications within
the time, all others being forever
excluded, was held special. But the
mere fact that an act is limited in
the time of its duration does not
necessarily make it special. People
v. Wright, 70 I1L 358.
1 See PeU v. Newark, 40 N. J. L. 71;
Freeholders v. Buck, 51 N. J. I* 155.
2Eitel v. State, 33 Ind. 201.
3 Scowden's Appeal, 96 Pa, St. 423.
* Morrison v. Bachert, 112 Pa, St.
322.
5 Frost v. Cherry, 122 Pa, St. 417.
62 CREATION AND CONTROL OF PUBLIC CORPORATIONS. [§ 67.
create a new corporation or to repeal the charter of an exist-
ing one, thus leaving no internal affairs to be regulated, but to
be valid the act must be limited to the mere creation of a new
division or the alteration of an existing one. If the act is
single and a new body finds the rules for its internal govern-
ment in some general law, it is unobjectionable ; but if the act
of creation or alteration includes provisions looking to the
regulation or government of the newly-created or altered dis-
trict, it is an attempt to regulate the internal affairs of such
district, and is invalid unless general.1 While a corporation
may thus be extinguished by a special law, it cannot' be taken
apart piecemeal, as by the repeal of a section here and there
at different times. Its affairs would be as effectually regulated
by thus depriving it of certain functions as by conferring new
powers and attributes upon it.2 The wards of a city are not
public corporations, but are simply divisions created for the
purpose of better enabling the municipality to exercise the au-
thority with which it is vested. Hence, a limitation of the
boundaries of a ward is not a regulation of the " internal af-
fairs " of a public corporation.8
An act prohibiting the removal of a soldier or sailor from a
public office " under the government of any city or county of
this state " is a regulation of the internal affairs of counties.4
So an act designating the newspapers which shall be selected
as the official papers of cities regulates their internal affairs.5
An act prescribing the manner in which the indebtedness of a
county shall be conducted is a law " regulating county busi-
ness." 6 An act regulating the assessment and revision of taxes
in cities regulates their internal affairs.7 The same is true of
an act taking from the township committee and conferring
upon the borough commissioners the right to expend the road
tax appraised in the township.8 But a law providing that no
married woman holding any indebtedness of the state or the
city may sell and transfer the same as though unmarried does
not violate a constitutional provision forbidding legislation reg-
1 Long Branch v. Sloane, 49 N. J. L. 8 State v. Trenton, 54 N. J. L. 444,
356. 24 Atl. Rep. 478.
2 Tiger v. Morris, 42 N. J. L. 631. 6 Youngs v. Hall, 9 Nev. 212.
3 State v. Mayor of Newark, 53 N. 7 Hammer v. State, 44 N. J. L. 667.
J. L. 4, 20 Atl. Rep. 86. «Ross v. Winsor, 48 N. J. L. 95.
* State v. O'Connor, 54 N. J. L. 36,
22 Atl. Rep. 1091.
§ 68.] CONSTITUTIONAL LIMITATIONS. 63
ulating the affairs of municipal corporations, as it " is simply
the regulation of the mode and transfer, in certain counties, of
property for the public convenience." l
§ 68. The prohibition of special legislation "where a general
law can he made applicable." — In a number of states we find
provisions forbidding special legislation in all cases where a
general law can be made applicable. Courts have with prac-
tical unanimity held that it was for the legislature to deter-
mine whether or not a general law could be made applicable
in a particular case.2 But the evident disposition of the legis-
latures to extend the exception beyond its proper limits has
led to the enactment of amendments in some states declaring
it to be a judicial question. Thus, the constitution of Minne-
sota now provides 3 that " whether a general law could have
been made applicable in any case is hereby declared to be a
judicial question, and as such shall be judicially determined
without regard to any legislative assertion on that subject."
The language has generally been given a liberal construction
for the purpose of advancing the legitimate purposes of ordi-
nary legislation. A contrary construction, instead of placing
on the legislature a wholesome limitation, as is the manifest in-
* F. & M. Bank v. Loftus, 133 Pa. v. Common Council, 32 Ind. 322;
St. 97, 19 Atl. Rep. 347. State v. Tucker, 46 Ind. 355; Vickery
2 State v. Hitchcock, 1 Kan. 178; v. Chase, 50 Ind. 461; Kelly v. State,
Beach v. Leahy, 11 Kan. 23; Com- 92 Ind. 236; Johnson v. Wells Co.,
ruissioners v. Shoemaker, 27 Kan. 77; 107 Ind. 15; Wiley v. Bluftou. Ill
Hughes v. Milligan, 42 Kan. 396, 22 Ind. 152; Evansville v. State, 118 Ind.
Pac. Rep. 313; Pierce v. Smith, 48 426; State v. Kolsem, 130 Ind. 434,29
Kan. 331, 29 Pac. Rep. 565; Edmonds N. E. Rep. 595; Costello v. Wyoming,
v. Herbrandson, 2 N. D. 270, 50 N. W. 49 Ohio, 202, 30 N. E. Rep. 613. But
Rep. 970; Henderson v. County Court, in a few cases it has been held to be
50 Ma 317, 11 Am. Rep. 415; State v. a judicial question. Clarke v. Irwin,
County Court, 51 Mo. 83: Hall v. Bray, 5 Nev. 92; Hess v. Pegg, 6 Nev. 23;
51 Mo. 288; City of St. Louis v. Shields, Evans v. Job, 8 Nev. 322. This last
62 Mo. 247; Little Rock v. Parish, 36 case was decided upon the authority
Ark. 166 ; Davis v. Gaines, 48 Ark. 370; of Thomas v. Board of Commission-
Owners of Laud v. People, 113 111. 296; ers, 5 Ind. 4, which was subsequently
Wilson v. Board, etc., 133 I1L 443, 27 overruled by Johnson v. Board, 107
N. E. Rep. 203; People v. McFadden, Ind. 15.
18 Cal. 489, 15 Am. St. Rep. 66; Avers' 3 Constitution of Minnesota, art.
Appeal, 122 Pa. St. 266; In re Ruan LV, sec. 33, as amended in 1892. To
Street, 132 Pa. St. 257; Brown v. the same effect, Constitution of Mis-
City of Denver, 7 Colo. 305; Carpen- souri of 1875, art. IV, sec. 53, cL 32.
ter v. People, 8 Cola 116; LongwortJ*
64: CREATION AND CONTROL OF PUBLIC COKPOEATIONS. [§ 69.
tention, would result in an absolute prohibition of special leg-
islation. To give this provision the strictest possible construc-
tion of which its language will admit will result in rendering
certain necessary legislation impossible, or in causing it to seek
refuge under the mere form of general legislation. The pro-
vision is not intended to prohibit special legislation, but simply
to restrict it to the narrowest field consistent with the prac-
tical work of legislation.1 ]STo general rule can be laid down,
but each case must be determined by its peculiar facts and cir-
cumstances, interpreted in the light of the intent which the
people must be presumed to have entertained when they in-
serted this saving provision in the constitution.2
When a general law could have no other or greater opera-
tion than a special law, so that no advantage could be derived
nor evil avoided by enacting a law having a general instead of
a special operation, a special law is permissible. Hence, where
it appeared that there were certain irregularities in the man-
ner of organizing a particular school district under the general
law, and no other such case existed in the state, it was held
that, although the legislature had no power under the constitu-
tion to directly create such a district by a special act, it might
provide for a case of this kind by a special law legalizing the
defective organization. Such a curative act is a local or special
law, but a general law could not be made applicable to the
case within the meaning of the constitution.3
§ 69. Amendment or repeal of existing special charters. —
Constitutional provisions prohibiting special legislation relating
to public corporations do not repeal special charters in force
at the time of their adoption. Thus, such a charter is not re-
pealed by the adoption of a provision requiring the legislature
to provide by general laws for the organization of citjps and
1 In Richman v. Muscatine Co., 77 2 State v. Squires, 26 Iowa, 340
Iowa, 513, 4 L. R. A. 445, it was said Richman v. Supervisors, 77 Iowa,
that, "except where it clearly ap- 513.
pears that the legislature was mis- 'People v. Cooper, 83 111. 585;
taken in its belief that a general law Geuild v. Chicago, 82 111. 472; Corn-
could not be made applicable," the missioners v. Reynolds (Pa.), 20 Atl.
courts will not interfere. See the Rep. 1011; Bitting v. Commonwealth
earlier Iowa case, Ex parte Pritz, 9 (Pa,), 12 AtL Rep. 28,
Iowa, 30.
§69.]
CONSTITUTIONAL LIMITATIONS.
65
towns, and to make provision by general law whereby any
city, town or village already incorporated may become subject
to the general law.1 But where a special law has been enacted
for the benefit of a public corporation, subject to adoption or
rejection by the inhabitants, it cannot be accepted by the cor-
poration after the adoption of the constitutional provision.
Such special law is repealed by the constitutional amendment.2
Where cities elect to retain their special charters after the
adoption of a constitutional amendment, it has been held that
amendments thereto may be made without violating the con-
stitution.3 The weight of authority, however, is to the effect
that this power of amendment is simply an evasion of the con-
stitutional provision,4 and that under a proper construction the
legislature has neither the power to amend5 or repeal6 pre-exist-
ing special charters. Any change in a special municipal char-
ter is a regulation of the internal affairs of a municipality.7
iDarrow v. People, 8 Colo. 426.
2Hinze v. People, 92 HI. 406.
3 Brown v. City of Denver, 7 Colo.
305; People v. Londoner, 13 Colo. 303.
4 Atkinson v. Bartholow, 4 Kan.
124 In Ex parte Pritz, 9 Iowa, 30,
it was held that a constitutional pro-
vision forbidding local or special
laws " for the incorporation of cities
and towns " forbade the enactment
of special laws for the amendment
of acts of incorporation in existence
before the adoption of the constitu-
tion. Said Wright, C. J.: "In the
interpretation of the constitution as
in the interpretation of laws, how-
ever, we are to ascertain the mean-
ing by getting at the intention of
those making the instrument. . . .
There can be no question but that it
was designed to confine the legisla-
ture to general legislation, and leave
the people in their municipal capac-
ity to organize and carry on their
government under such general laws.
If this be so, then to say that the
legislature may not pass a law to in-
corporate a city, but may to amend
an act of incorporation in existence
before the adoption of the constitu-
5
tion or charters under the general
law, would make this provision of
the constitution practically amount
to nothing; for, if they may amend,
they may to the extent of passing
another new law, except as to one
section, or they may at one session
amend one-half the law, and at the
next the other half; and thus the
plain and positive prohibition of the
fundamental law would be evaded.
By such a construction the evil
sought to be prohibited would con-
tinue, if possible, in a more objec-
tionable form."
5 Davis v. "Woolonough, 9 Iowa, 104;
Baker v. Steamboat, 14 Iowa, 214.
6 State v. Cincinnati, 20 Ohio St,
18; Wiley v. Bluffton, 111 Ind. 152.
Citing Longworth v. Evansville, 33
Ind. 322; Evansville v. Bayard, 39
Ind. 450; Chamberlain v. Evansville,
77 Ind. 542; Eichels v. Evans villa
Street Railway, 78 Ind. 261, 41 Am.
Rep. 561; Warren v. Evansville, 106
Ind. 104; Bluffton v. Studabaker,
106 Ind. 129; Evansville v. Summers,
103 Ind. 189.
7 Tiger v. Morris Common Pleas, 42
N. J. L. 631. See § 227.
BOOK II.
THE POWERS OF PUBLIC CORPORATIONS.
CHAPTER Y.
GENERAL POWERS — NATURE AND CONSTRUCTION.
70. The general principle.
71. Comments upon the rule.
72. Construction.
7a Usage.
74. Delegation of powers.
75. Illustrations.
§ 70. The general principle. — The legislature in creating
public corporations confers upon them such powers as it deems
most conducive to the public good. The powers of counties
and townships are generally uniform, and are determined by
general .laws. Those of municipal corporations are often con-
ferred by special charters, which results in great lack of uni-
formity. The powers of corporations, stated in general lan-
guage, are such and such only as the legislature has conferred
upon them. Those of municipal corporations, as classified by
Judge Dillon, and approved by many courts, are:
1. Those granted in express words.
2. Those necessarily or fairly implied in or incident to the
powers expressly granted.
3. Those essential to the declared objects and purposes of
the corporation, not simply convenient, but indispensable.1
The express powers are found in the words of the charter or
general statute of incorporation. The implied powers arise out
of the language of the grant of express power. The necessary
1 Detroit Citizens' St. Ry. Co. v. 14, 16 Am. Rep. 766; Somerville v.
Detroit (Mich.), 68 N. W. Rep. 304, 35 Dickerman, 127 Mass. 272; Bentley
L. R. A. 859; St. Louis v. Bell Tel. Co., v. Bd. Co. Com., 25 Minn. 259; Clark
69 Mo. 623, 9 Am. St Rep. 370; Hues- v. Des Moines, 19 Iowa, 199, 87 Am.
ing v. Rock Island, 128 11L 465, 15 Am. Dec, 423; Zottman v. San Francisco,
St. Rep. 129; Village of Carthage v. 20 Cal. 96, 81 Am. Dec. 96; Taylor v.
Frederick, 122 N. Y. 268, 19 Am. St Bay City St. R. Co., 80 Mich. 77.
Rep. 490; Smith v. Newbern, 70 N. C.
68 POWERS OF PUBLIC CORPORATIONS. [§ 71.
powers are such as are essential in order to effect the objects
for which the corporation was created.1 But it must be remem-
bered that a municipal corporation is a body with special and
limited jurisdiction, and that its powers can neither be extended
or diminished by its own acts.2 Thus, where a charter author-
ized a municipal board to act by a majority vote, a by-law pro-
viding that a two-thirds vote should be required was held
invalid.3 In a somewhat similar case, the court said 4 that " in
authorizing the city council to settle their rules of procedure,
the legislature did not confer on the council the power .to de-
clare by rule what number of their body should constitute a
quorum for the transaction of business. A mere majority of
the members elected being present, the acts of the city council
are valid, notwithstanding the existence of a rule adopted by
the council requiring that two-thirds of the members elected
shall be necessary to constitute a quorum. A municipal corpo-
ration cannot, by rule made by itself, either enlarge or dimmish
its own powers."
§ 71. Comments upon the rule. — The general principles as
stated in the preceding section have been often approved by
the courts. Thus Chief Justice Church said : " In this country
all corporations, whether public or private, derive their pow-
ers from legislative grant, and can do no act for which author-
ity is not expressly given or may not be reasonably inferred.
But if we were to say that they can do nothing for which a
warrant could not be found in the language of their charter,
we would deny them in some cases the power of self-preserva-
tion as well as many of the means necessary to the essential
object of their incorporation. And, therefore, it has long been
an established principle of the law of corporations, that they
may exercise all the powers within the fair intent and purpose of
their creation which are reasonably proper to give effect; to
powers expressly granted. In doing this they must have a
1 Smith v. City of Newbern, 70 190 (Gil. 159), 72 Am. Dec. 89; City of
N. C. 14, 16 Am. Rep. 766; Bridge- St. Paul v. Traeger, 25 Minn. 252.
port v. Railroad Co., 15 Conn. 475; 3 Short-Conrad Co. v. School 'Dis-
Village of Carthage v. Frederick, 122 trict of Eau Claire (Wis.), 69 N. W.
N. Y. 268, 19 Am. St Rep. 490. Rep. 337.
2 City of St. Paul v. Laidler, 2 Minn. « Heiskell v. Mayor, 65 Md. 125, 4
Atl. Rep. 116.
§ 72.] GENERAL POWERS — NATURE AND CONSTRUCTION.
69
choice of means adapted to ends and are not to be confined to
any one mode of operation." l They can exercise no powers,
said Chief Justice Shaw,2 " but those which are conferred upon
them by the act by which they are constituted, or such as are
necessary to the exercise of their corporate powers, the per-
formance of their corporate duties and the accomplishment of
the purposes of their association. The principle is derived
from the nature of corporations, and the mode in which they
are organized and in which their affairs must be conducted."
§ 72. Construction. — It is a well-settled rule of construction
that in grants to corporations, whether public or private, only
such powers and rights can be exercised under them as are
clearly comprehended within the words of the act or derived
therefrom by fair and reasonable implication, regard being had
to the object of the grant. Any ambiguity or doubt arising
out of the terms used by the legislature must be resolved in
favor of the public.8 All charters and city laws must be con-
strued in conformity to constitutional principles and in har-
mony with general laws.4
1 Bridgeport v. Railroad Co., 15
Conn. 475. But where the manner
in which power is to be executed is
expressly prescribed, that method
must be followed. Mayor of Balti-
more v. Porter, 18 Md. 284, 79 Am.
Dec. 686; Zottman v. San Francisco,
20 CaL 96, 81 Am. Dec. 98.
2Spaulding v. Lowell, 23 Pick. 71.
'St. Louis v. Bell Tel. Co., 96 Ma
623, 9 Am. St. R. 370; Minturn v.
Lame, 23 How. 435; Thompson v.
Lee Co., 3 Wall 327; Thomas T. Rich-
mond, 12 Wall 349; Lehigh "Water
Company's Appeal, 102 Pa. St. 515;
Leonard v. Canton, 35 Miss. 189;
Long v. Duluth, 49 Minn. 287; Bren-
ham v. Brenham "Water Co., 67 Tex.
542. "With reference to this rule
Judge Dillon says: "If upon the
whole there be a fair, reasonable,
substantial doubt whether the legis-
lature intended to confer the au-
thority in question, particularly if
it refers to a matter extra-mu-
nicipal or unusual in character, and
the exercise of which will be at-
tended by taxes, tolls, assessments
or burden upon the inhabitants, or
oppress them, or abridge natural or
common rights, or divest them of
their property, the doubt should be
resolved in favor of the citizen and
against the municipality." Munici-
pal Corporations, § 891, note. See Ex
parte Mayor of Florence, 78 Ala. 419;
Grand Rapids Electric Co. v. Grand
Rapids Edison Co., 33 Fed. Rep. 659;
Logan v. Pyne, 43 Iowa, 524, 22 Am.
Rep. 261 ; Anderson v. Wellington, 40
Kan. 173, 10 Am. St. Rep, 175, note.
In Ex parte Garza, 28 Tex. Ap. 381,
19 Am. St. Rep. 845, it was said that
all reasonable intendment in sup-
port of the validity of an ordinance
should be indulged.
4 In re Frazee, 63 Mich. 396, 6 Am.
St. Rep. 311; Mayor v. State, 15 Md.
376, 74 Am. Dec, 572.
70 POWERS OF PUBLIC CORPORATIONS. [§§ 73-75.
§ 73. Usage. — In this country power cannot be conferred
upon public corporations by usage, but the usage may properly
be considered in aid of construction.1 Thus, an unlawful ex-
penditure of money by a town cannot be made valid by usage
however long continued. Abuses of power and violations of
right derive no sanction from time or custom.2
§ 74. Delegation of powers. — As a public corporation exer-
cises powers delegated to it by the legislature, the general rule
is that it must itself exercise its powers, and cannot delegate
them to any other body or person.3 But a distinction. is made
between acts which involve discretion and those which are
merely ministerial in their nature. Thus, in a case 4 which in-
volved the rights of a council to direct the mayor and chair-
man of the committee on streets and alleys to make a contract
on behalf of the city for the construction of sidewalks, it was
said: "It is true that the council could not delegate all the
power conferred upon it by the legislature, but like every other
corporation it could do its ministerial work by agents. Noth-
ing more was done in this case. The council directed the pave-
ments, ordering them to be constructed of one or the other of
several materials, but giving to the owners of abutting lots the
privilege of selecting which, and reserving to the chairman of
the committee authority to select in case the lot owner failed.
The council also directed how the preparatory work should be
done. There was, therefore, no unlawful delegation of power."
§ 75. Illustrations. — There are many cases illustrating the
principles of the preceding section. Thus, a council having au-
thority to lease certain rooms may appoint a committee to
procure furniture and arrange the rooms.8 So the power of a
city over its streets may be delegated to a street committee
composed of members of the board of aldermen.6 Pow«r to
license the sale of liquor, expressly conferred on the city coun-
1 Frazer v. Warfield, 13 Md. 279. * Hitchcock v. Galveston, 96 U. S.
2 Hood v. Lynn, 1 Allen, 103. 341 ; Green v. Ward, 82 Va. 824.
3 St. Louis v. Russell, 116 Mo. 248, 20 8 Edwards v. Watertown, 24 -Hun
L. R. A. 721 and note: Thompson v. (N. Y.), 428.
Schermerhorn, 6 N. Y. 92, 55 Am. «Tate v. Greensboro, 114 N. C. 392,
Dec. 385; McCrowell v. Bristol, 89 24 L. R. A. 671.
Va. 65, 20 L. R. A. 653; Lauenstein
v. Fond du Lac, 28 Wis. 336.
§ 75.] GENERAL POWERS — NATURE AXD CONSTRUCTION. 71
cil, cannot, however, be delegated to the mayor.1 When the
mayor and aldermen are authorized to purchase a site and erect
thereon a market building, they cannot delegate such power
to commissioners.2 The council cannot delegate to a board of
public works the power given it, in conjunction with the board
of education, to purchase a school-house site.3 The power to
determine which of several railroad companies shall receive
municipal aid cannot be delegated.4 Kor can a city with au-
thority to build and maintain a wharf lease the same to some
person, and authorize the lessee to fix the rates of wharfage.5
A city cannot delegate its power to establish the grade of
streets,8 nor to prescribe the width of sidewalks,7 nor to decide
the manner in which streets shall be improved,8 nor to decide
the kind of paving blocks which shall be used,9 nor to deter-
mine the dimensions and material of a sewer.10 But the city
may authorize a board to make rules and regulations governing
the use of the streets.11 But mere ministerial powers may be
delegated.12 Thus, a village may by ordinance empower the vil-
lage recorder to license peddlers, where he is given only the
ministerial power of issuing the license upon certain prescribed
conditions being complied with.18
1 State v. Bay onne, 44 N. J. L. 114; « Richardson v. Heydenfeldt, 46
Kinmundy v. Mahan, 72 I1L 462. CaL 68.
2 State v. Paterson, 34 N. J. L. 163. » Smith v. Duncan, 77 Ind. 92;
s Lauenstein v. Fond du Lac, 28 Hydes v. Joyes, 4 Bush, 464, 96 Am.
Wis. 336. Dec. 311; Thomson v. Boonville, 61
*Monadnock Ry. Co. v. Petersboro, Mo. 282; Zabel v. Louisville (Ky.), 13
49 N. H. 281. L. R. A. 668.
5 Matthews v. Alexandria, 68 Mo. 10St. Louis v. Buckner, 44 Mo. 19.
115, 30 Am. Rep. 776. u Commonwealth v. Plaisted, 148
6Lippelman v. Cincinnati, 4 Ohio Mass. 375.
C. C. 327. a Ruggles v. Collier, 43 Mo. 353.
' McCrowell v. Bristol, 89 Va. 652, u Swarth v. People, 109 111. 62L
20 L. R, A. 65a
CHAPTEK VI.
PARTICULAR POWERS.
76. Manner of granting powers.
77. Statutory requirements.
78. The exercise of powers be-
yond corporate limits.
79. Power to enact ordinances.
80. General-welfare clause.
L MISCELLANEOUS POWERS.
81. Power to contract.
82. Letting contracts to lowest
bidder.
83. Remedy of lowest bidder.
84 Contracts for a term of years.
85. Exclusive privileges.
86. Power to borrow money.
87. Compromise and arbitration.
88. Powers of school boards —
Text-books.
IL POLICE POWERS.
89. Nature and scope of the police
power.
90. Regulation of occupations and
amusements.
91. The preservation of health.
92. Nuisances.
93. Regulation of wharves.
94. Licenses.
95. Markets.
96. Prevention of fires.
97. Care of indigent and infirm.
§ 76. Manner of granting powers. — It must be remembered
that public corporations are created by the state for the primary-
pur pose of aiding in the work of government; and that it dele-
gates to them such powers as are deemed advisable for that
purpose. Municipal corporations have largely lost their orig-
inal character, and become, like counties and towns, essentially
public agencies, with certain private powers and franchises,
however, to be used for the benefit of its citizens. In this
country the legislatures generally attempt to enumerate all the
powers which public corporations may exercise, but such an
enumeration does not deprive the corporation of its common-
law powers.1 It is impracticable for any charter to contain an
enumeration of all the powers which it may be advisable that
such a corporation should exercise under all possible future
conditions. Hence, it has become customary to apply to the
legislature for additional powers upon the occurrence of every
new demand. As a result there is no such systematic classifi-
cation of corporate powers as probably would have been made
under a system where power is granted in general terms, as is
i Crawfordsville v. Brader, 130 Ind. 149, 28 N. E. Rep. 851, 30 Am. St. Rep. 2 14,
§ 77.] PABTICCLAB POWERS. 73
common in many European countries. Thus, in France, all
municipal power is derived from the simple provision that
" the municipality regulates by its deliberations the affairs of
the commonwealth."1
An examination of the laws of the several states and of the
special charters of municipal corporations will show that many
powers are common to all. Municipal corporations are ordi-
narily classified, and a grant of enumerated powers is then
made by general laws to each class. Cities of the highest class
naturally require and ordinarily possess many powers and priv-
ileges not granted to smaller corporations.
Municipal corporations are generally granted power to man-
age and control the finances and property of the city, and to
make proper ordinances for the government and good order of
the city, the suppression of vice and intemperance, and the pre-
vention of crime. For these purposes they are authorized to
enact ordinances licensing amusements, prohibiting gaming, es-
tablishing boards of health and public markets, providing for a
standard of we:'ghts and measures, a system of quarantine, tax-
ing animals running at large, abating nuisances, regulating
driving, slaughter-houses, butcher shops and various other oc-
cupations. The powers of counties and townships vary accord-
ing to locality. In the western states, where the powers are
divided between the two bodies, the county ordinarily has
power to sue and be sued, to purchase and hold real and per-
sonal estate for the use of the county, lands sold for taxes,
and under judicial proceedings in which the county is plaintiff,
to sell and convey real and personal estate owned by the county,
and to make all contracts and do all other acts in relation to
the property and concerns of the county necessary to the exer-
cise of its corporate powers. It is impossible to enumerate or
even to classify all the powers possessed by public corporations.
Local statutes and special charters must be examined. A broad
division may however be made into powers of a governmental
nature and powers of a private or corporate character.2
§ 77. Statutory requirements. — When the manner in which
the powers of a public corporation may be exercised is pre-
iGoodnow, Municipal Problems, N. Y. 46; State T. Covington, 29 Ohio
p. 252. St. 111.
2 Fire Ins. Co. v. Keeseville, 148
74: POWEKS OF PUBLIC COEPOEATIONS. [§§ 78, 79.
scribed by the charter, that mode is the measure of power and
must be strictly followed. "When any power is granted and
the mode of its exercise prescribed, that mode must be strictly
pursued." l Thus, a contract executed in a manner other than
that prescribed by the statute is void.2
§78. The exercise of power beyond corporate limits. — As a
general rule a corporation cannot exercise its powers be^vond
its corporate limits.3 But authority to do so may be conferred
by statute based upon a public necessity,4 as where a city is
authorized to construct water-works at a distance beyond its
limits. Under a charter containing general authority over
drainage, the city may enter into contracts or prosecute work
beyond its limits for the purpose of discharging sewage where
it will not endanger the health of the community.5 So a city
may by ordinance require that an applicant for milk license
shall consent that the dairy herd from which he obtains his
milk may be inspected by the commissioner of health, although
the herd is kept outside of the city limits.6
§ 79. Power to enact ordinances. — The legislature may prop-
erly delegate to a municipal corporation the right to exercise
certain legislative powers.7 The laws which a municipal cor-
poration may thus pass are commonly called ordinances. " It
cannot be doubted," says Mr. Justice Harlan,8 "that the legis-
lature may delegate to municipal corporations the power of
enacting ordinances that relate to local matters, and that such
ordinances, if legally enacted, have the force of laws passed by
1 Whiting v. West Point, 88 Va. v. McLaughlin, 5 Utah, 387; Law-
905, 15 L. R. A. 861; Minturn v. Lame, rence v. Monroe, 44 Kan. 607.
23 How. (U. S.) 435. * Van Hook v. Selma, 70 Ala. 361,
2 Fones Bros. H. Co. v. Erb, 54 Ark. 45 Am. Rep. 85; Cold water v. Tucker,
645, 13 L. R. A. 353;Durango v. Pen- 36 Mich. 474, 24 Am. Rep. 601.
nington, 8 Colo. 257; Mazet v. Pitts- 5 McBean v. Fresno, 112 Cal. 15$ 44
burgh, 137 Pa. St. 543; Wells v. Burn- Pac. Rep. 358, 31 L. R. A. 794; Cold-
ham, 20 Wis. 119; Wheeler v. Wayne water v. Tucker, 36 Mich. 474, 24
Co., 31 111. App. 598, 24 N. E. Rep. 625; Am. Rep. 601.
Weitz v. Independent District, 79 6 State v. Nelson (Minn.), 34 L. R.
Iowa, 423; Zottman v. San Francisco, A. 318 (1896).
20 Cal. 96, 81 Am. Dec. 96; Niles W. ?St. Paul v. Colter, 12 Minn. 41;
W. v. Niles, 59 Mich. 811. Blanchard v. Bissell, 11 Ohio St. 96.
3 People v. Bennett, 83 Mich. 457; 8 New Orleans Water-works v. New
Weed v. Boston, 126 Mass. 443; Ogden Orleans, 164 U. S. 481.
§§ S<~>. Sl.J PAKTICrLAK POWERS. 75
the legislature of the state and are to be respected by all."
When such an ordinance is enacted without authority it is void,
and all proceedings under it are void ; but if the power to enact
the ordinance exists and is exercised in an irregular or unauthor-
ized manner, the ordinance is treated as valid until set aside in
proper legal proceedings.1
§80. General-welfare clause. — In addition to the grant of
specific powers, most charters contain a clause granting'power
to provide for the preservation and promotion of the public
welfare, and the peace and safety of the community. This pro-
vision is generally given a liberal construction, and under it
ordinances have been enacted providing for and regulating the
blasting of rocks, street preaching, destruction of trees in pub-
lic places, and other such purposes.2 It is generally held that,
in the absence of statute or charter provision requiring a dif-
ferent interpretation, the general-welfare clause will author-
ize a corporation to restrain animals from running at large.3
The mere fact that the charters of some cities in a state contain
express provision authorizing the enactment of ordinances for
this purpose, and that no such provision is contained in other
charters, does not in itself prevent such cities from enacting
such ordinances under the general-welfare clause.4
I. MISCELLANEOUS POWERS.
§ 81. Power to contract. — Unless restricted by its charter, a
municipal corporation has implied power to make such con-
tracts as are reasonably necessary for the purpose of carrying
into effect the objects of its creation.5 Power to contract con-
ferred in general terms only authorizes the making of such
contracts as are necessary and usual.6 A municipal corpora-
tion can bind itself by such contracts only as it is authorized to
1 Cam Jen v. Mulford, 26 N. J. L. 49. * Cochran v. Frostberg, 81 Md. 54,
2 Common wealth v. Parks, 155 Mass. 27 L. R. A. 728.
531, 30 X. E. Rep. 174; Commonwealth 5 Douglass v. Virginia City, 5 Jfev.
v. Davis, 140 Mass. 485; Mankato v. 122; East St. Louis v. East St. Louis
Fowler, 32 Minn. 354; State v. Mer- Gas L. Co., 98 III 415.
rill, 37 Me. 329. 6Rae v. Mayor, 51 Mich. 526; Greg-
* Collins v. Hatch, 18 Ohio, 523. 51 ory v. Bridgeport, 41 Conn. 76L
Am. Dec. 4G5; Wilcox v. Hemming,
5-j Wis. 144
76 POWEES OF PUBLIC CORPORATIONS. [§ 82.
make, and it is not estopped by a contract made in violation
of its charter provisions.1 A city cannot by contract deprive
itself of the power of performing its governmental duties ; 2
and the distinction between corporate and governmental powers
must not be lost sight of in considering the validity of con-
tracts. As to powers of a private character, and property ac-
quired thereunder and contracts made with reference thereto,
the corporation is to be regarded quoad hoc as a private cor-
poration.
When a contract will interfere with the duties of the corpo-
ration in preserving the public health and morals of the city,
or will create a nuisance, the corporation cannot be required
to perform it, but it must reimburse the other party for dis-
bursements made under the contract, and pay resulting dam-
ages.3
A contract with a municipal corporation which is the owner
of certain telegraph and telephone lines to put the wire in con-
duits underground is for the private advantage of the corpora-
tion. When a city, in the exercise of its governmental powers,
and of its discretion as to time and manner, decides to make a
certain improvement, the contracts made for the purpose of
earning on the work cannot be revoked by the corporation.
An attempted revocation on the ground that the city attorney
had advised that the ordinance authorizing the work was in-
valid is no defense to an action on the contract.4 A munici-
pal corporation may. ratify a contract made by a party who
was wrongfully acting for both parties, if it is not unlawful or
immoral and might originally have been made by the corpora-
tion.5
§ 82, Letting contracts to loivest Udder. — Where a city coun-
cil does not abuse its discretionary powers, and does not act
»
iNewberry v. Fox, 37 Minn. 141, 5 538; Eittenhouse v. Mayor, 25 Md.
Am. St. Rep. 830. The doctrine of 336; United States v. Behan, 110
ultra vires is applied with greater U.S. 338; Howard v. Manufacturing
strictness to municipal bodies than Co., 139 U. S. 199.
to private corporations. 4 Safety Ins. W. & C. Co. v. Mayor
2 Illinois S. & T. Co. v. Arkansas of Baltimore (C. C. A.), 66 Fed. Rep.
City, 76 Fed. Rep. 271, 40 C. C. A. 257, 140.
and cases cited. 6 City of Findlay v. Pertz, 66 Fed.
3 Brick Presbyterian Church v. Rep. 427, 31 C. C. A. 340.
City of New York, 5 Cow. (N. Y.)
5 52.]
PARTICULAR POWERS.
77
fraudulently, and the charter does not prescribe the mode of
entering into contracts in purchasing material for the use of the
city, it may award contracts without letting them to the low-
est bidder, if the contract is otherwise within the scope of its
corporate power.1 But when the charter requires that such
contracts shall be let to the lowest bidder, a contract let in any
other manner is invalid and incapable of ratification.2 "When
the right is reserved to reject any and all bids, it is equivalent
to an offer to contract, and a bidder acquires no rights until
his bid is actually accepted.3 The advertisement for bids must
be in such form as to permit of bona fide competitive bidding.4
Charter provisions ordinarily require that the contract shall be
let to the lowest responsible bidder. A certain discretion is
then left to the awarding officers, which will not be controlled
by the courts. A responsible bidder is one who has judgment
and skill in addition to pecuniary responsibility.5
1 Yarnold v. City of Lawrence, 15
Kan. 126; Elliott v. Minneapolis, 59
Minn. 111. In the case last above
cited the court said: "But the pow-
ers of a city council are not unlim-
ited. However difficult ~it might be
to investigate the motives of the
members of a city council, yet when-
ever they undertake to use their
corporate power fraudulently for
their own advantage or for the bene-
fit or injury of others, such acts are
void. Any other rule would be dis-
astrous, and the most salutary doc-
trine that can be upheld, and which
we uphold as the law, is to allow
fraudulent contracts on the part of
municipal corporations to be im-
peached.
2 Gary v. Somerset Co., 45 N. J. L.
445; Addis v. Pittsburgh, 85 Pa. St.
379; McNeil v. Boston Chamber of
Commerce. 154 Mass. 277, 13 L. R. A.
559; Frame v. Felix, 167 Pa. St. 47,
27 L. R. A. 802; Weitz v. Independ-
ent District, 79 Iowa, 423.
3 Anderson v. Board, 122 Ma 61, 26
L. R. A. 707, and note.
4 Mazet v. Pittsburgh, 137 Pa, St
548; Ely v. Grand Rapids, 84 Mich.
337; Barber Asphalt Pav. Co. v.
Hunt, 100 Mo. 22.
5 Kelly v. Chicago, 62 EL 279; Doug-
lass v. Commonwealth", 108 Pa. St.
559; State v. M'Grath, 91 Mo. 386;
State v. Trenton, 49 N. J. L. 339;
Hoole v. Kincaid, 16 Nev. 217. In
Frame v. Felix, 167 Pa. St 47, the
court said: " The provision that con-
tracts for municipal work shall be
given to the lowest responsible bid-
der does not have sole reference to
the mere pecuniary liability of the
contractor, but involves a discretion
on the part of the municipal author-
ities in the selection of the agency
best fitted for the performance of
the work required. Commonwealth
v. Mitchell, 82 Pa. St 343; Findlay v.
Pittsburg, id. 351; Douglass v. Com-
monwealth, 108 Pa. St. 559; Interstate
Vitrified Brick & Paving Co. v. Phila-
delphia et aL, 164 Pa. St 477. But
that discretion being granted, the
purpose of the provision which
was based upon motives of public
economy, and originated perhaps
from some degree of mistrust of the
officers to whom the duty of mak-
ing contracts for the public service
78 POWERS OF PUBLIC CORPORATIONS. [§ 83.
§ 83. Remedy of bidder. — Mandamus or mandatory injunc-
tion to require the execution of the contract to the lowest bid-
der is generally refused on the ground that there is a discretion
vested in the awarding officers, that there is an adequate remedy
at law, or that the provision is for the benefit of the public,
and not the bidder. l
In a recent case 2 the circuit court of appeals said : " That tax-
payers whose taxes are to be increased, or whose property is
to be depreciated in value, by the fraudulent or arbitrary vio-
lation of this provision by the officers of a municipality, may
maintain a bill to enjoin their proposed action, is a proposition
now too well settled to admit of question.3 These suits, how-
ever, stand upon the ground that the statutes upon which they
are based were enacted, and the duties there specified were im-
posed upon the public officers, for the express benefit of the tax-
payers and property holders who bring the suit. The appel-
lee pays no taxes for this paving. He has no property which
will be injured by the violation of the provisions relied upon,
and no one who has is here to complain of their violation. So
far as the purpose of the enactment is concerned, the complain-
ant is a stranger to the statute, one whose interests were not
considered, or intended to be considered, by the enactment. He
is a mere bidder for some of the public work of this city, a
contractor, or one who desires to become a contractor. . . .
It is upon this principle that it is now settled by the great
was committed (Brady v. New York, the whole of it must be submitted
20 N. Y. 812), clearly was to secure to to such competition."
the city the benefit and advantage of l Dibble v. New Haven, 56 Conn,
fair and just competition between 199; State v. Fond du Lac Board of
bidders and at the same time close Education, 24 Wis. 683; People v.
as far as possible every avenue to Campbell, 72 N. Y. 496. Contra,
favoritism and fraud in its various State v. Marion Co. Com'rs, 39 Ohio
forms (Mazet v. Pittsburgh, 137 Pa. St. 188; Times Pub. Co. v. Everett, 9
St. 548), and to insure the ac- Wash. 518 (1894). See annotation to
complishment of the work at the Anderson v. Board, in 26 L. R. A. 707,
lowest price by subjecting the con- 122 Mo. 61.
tract for it to public competition. 2 Colorado Pav. Co. v. Murphy, 78
In re Mahan, 20 Hun (N. Y.), 301. In Fed. Rep. 28.
order to effectuate this purpose it is 3 Times Pub. Co. v. Everett, 9 Wash,
manifest that where something is to 518, 37 Pac. Rep. 695; Beach, Pub.
be done that is required to be sub- Corp., § 634: High, Inj., § 1251;
mitted to competition, every essen- Mayor v. Keyser, 72 Md. 100, 19 Atl.
tial part of it that goes to make up Rep. 706; People v. Dwyer, 90 N. Y.
402.
§ 84.] PAETICCLAE POWERS. 79
weight of authority that the lowest bidder cannot compel the
issue of a writ of mandamus to force the officers of a munici-
pality to enter into a contract with him." l Nor can he maintain
an action at law for damages for the refusal to enter into the
contract.2 " This principle is as fatal to a suit in equity as to
an action at law. It goes not to defeat one particular cause of
action, but to defeat the right to any relief." * The bidder has
no remedy in the absence of a mandatory statute or when the
right to reject is reserved.4 But when the bid is rejected upon
grounds not within the province of the board to pass upon,5 or
when the officers act fraudulently,6 the rights of the lowest bid-
der will be protected. A bidder whose bid is fraudulent,7 ob-
scure, or so framed as to prevent competition, is not entitled to
the contract.8
§ 84. Contracts for a term of years. — A city council, in the
absence of a charter restriction,9 may enter into a valid con-
tract for a term of years extending bevond the life of the
j ~
council or the official term of the officers, if the time be not
unreasonable under all the circumstances.10 But the council
must not by such contract preclude itself from exercising its
iffigh, Extr. Rem., § 92; State v. burgh, 137 Pa. St. 548; Coggshal v.
Board, 24 Wis. 683; Commonwealth Des Moines, 78 Iowa, 235; In re An-
v. Mitchell, 82 Pa. St. 343; Kelly v. derson, 109 N.Y. 554; Littler v.Jayne,
Chicago, 62 111. 279: State v. McGrath, 124 111 123. See Nash v. St Paul, 11
91 Mo. 386; Douglass v. Common- Minn. 174.
•wealth, 108 Pa. St. 559; Madison v. 9 Indianapolis v. Waun, 144 Ind.
Harbor Board, 76 Md. 395, 25 AtL 175, 42 N. E. Rep. 901, 31 L. R A. 74a
Rep. 337. 10 Garrison v. Chicago, 7 Biss. 480:
2Talbot Pav. Co. v. City of Detroit New Orleans G. L. Co. v. New Or-
(Mich.), 67 N. W. Rep. 979; Gas Light leans, 42 La. 188; Valparaiso v. Gard-
Co. v. Donnelly, 93 N. Y. 557. ner, 97 Ind. 1 ; Indianapolis v. Ind.
3 Colorado Pav. Co. v. Murphy, 78 G. L. Co., 66 Ind. 396; Vincennes v.
Fed. Rep. 28, 49 C. C. A. 17. Citizens', etc. Co., 132 Ind. 114; Smith
4 State v. Lincoln Co., 35 Neb. 346; v. Dedharn, 144 Mass. 177; Merrill, etc.
State v. Dickson Co. Com., 24 Neb. Ry. Co. v. Merrill, 80 Wis. 358; Colum-
106. bus W. W. Co. v. Columbus, 48 Kan.
5 Cleveland, etc, TeL Co. v. Metro- 99; Davenport v. Kleinschmidt, 6
politan Fire Com., 55 Barb. (N. Y.) Mont. 502; Atlantic City W. W. v.
2^. Atlantic City, 48 N. J. L. 378; Santa
6 State v. Trenton, 49 N. J. L. 339. Anna W. Co. v. San Buenaventura,
" Baltimore v. Keyser, 72 Md. 106; 56 Fed. Rep. 339. . See note to Shel-
State v. York Co. Com., 13 Xeb. 57. don v. Fox, 48 Kan. 356, 16 L. R A.
s Fones Bros. H. Co. v. Erb, 54 Ark. 257.
645, 13 L. R A. 353; Mazet v. Pitts-
80
POWERS OF PUBLIC CORPORATIONS.
[§85.
legislative powers,1 create a perpetuity or monopoly,2 or abso-
lutely surrender its control over the subject-matter of the con-
tract.3 But every contract, or ordinance in the nature of a
contract, to some extent necessarily limits and controls the
power and authority of future councils. This is the unavoid-
able result of any binding contract.4 The power to execute a
contract for goods, houses, gas, water, and the like, is neither a
judicial nor a legislative power, but is a purely business power.5
The purpose is not to govern the inhabitant, but to obtain a
private benefit for the city and its people.6
§ 85. Exclusive privileges. — It is well settled that a munici-
pal corporation cannot without express authority grant exclu-
sive franchises or privileges, such as the right to put mains,
pipes or hydrants in streets.7 The general rule is that the leg-
1 Brenham v. Brenham W. Co., 67
Tex. 543.
2 Greenville W. W. Co. v. Green-
ville, 70 Miss. 669 (1890). See note to
Altgeld v. San Antonio, 81 Tex. 436,
13 L. R A. 383.
3 Houston v. Houston City R. R
Co., 84 Tex. 581 (1892).
4 Vincennes v. Citizens' G. L. etc.
Co., 132 Ind. 114.
5 Valparaiso v. Gardner, 97 Ind. 1,
49 Am. Rep. 416.
6 Cincinnati v. Cameron, 33 Ohio
St. 336; Safety Ins. Wire & C. Co. v.
Baltimore, 66 Fed. Rep. 140, 25 U. S.
(App.) 166. In Illinois T. & S. Bank
v. Arkansas City, 40 C. C. A. 257, 76
Fed. Rep. 271, 34 L. R A. 518, the
court said : " But it is insisted that
this contract is beyond the powers
of the city and void, because it grants
the right to use the streets of the city
to the water company, and promises
to pay rental for the hydrants for
twenty-one years. The proposition
on which this contention rests is that
the members of the city council are
trustees for the public; that they ex-
ercise legislative powers, and that
they can make no grant and con-
clude no contract which will bind
the city beyond the terms of their
offices, because such action would
circumscribe the legislative powers
of their successors, and deprive them
of their right to their unrestricted
exercise as the exigencies of the
times might demand. . . . This
proposition ignores the settled dis-
tinction between the governmental
or public, and the proprietary or
business, powers of a municipality,
and erroneously seeks to apply to
the exercise of the latter a rule
which is only applicable to the exer-
cise of the former."
7 Syracuse W. Co. v. Syracuse, 116
N. Y. 167, 5 L. R A. 546; Altgeld v.
San Antonio, 81 Tex. 436, 13 L. R A.
383, note; State v. Cincinnati Gas
Co., 18 Ohio St. 262; Gale v. Kala-
mazoo, 23 Mich. 344, 9 Am. Rtfp. 80:
Logan v. Pyre, 43 Iowa, 524, 22 Am.
Rep. 261; Des Moines Gas Co. v. Des
Moines, 44 Iowa, 505, 24 Am. Rep.
756; Saginaw G. L. Co. v. Saginaw,
28 Fed. Rep. 529; Norwich G..L. Co.
v. Norwich City Gas Co., 25 Conn.
20; Long v. City of Duluth, 49 Minn.
280, and cases there cited and re-
viewed. As to power of creating
monopolies, see Saginaw Gas L. Co.
§ 86.] PARTICULAR POWERS. 81
islature alone has the power to make exclusive grants of this
character, and that this authority does not vest in the munici-
pality, unless it is expressly granted to it by its charter.1 Ex-
clusive rights of this nature are not favored. If there is any
ambiguity or reasonable doubt arising from the terms used by
the legislature or granting body as to whether an exclusive fran-
chise has been conferred or authorized to be conferred, the
doubt is to be resolved against the party claiming such grant.2
Power to light its streets is authority to give the use, although
not the exclusive use, of the streets to the party with whom the
contract for lighting is made.1 Power to provide a water sup-
ply,4 or " to cause said city or any part thereof to be lighted
with oil or gas, and to levy a tax for that purpose," will not
authorize contracts giving the exclusive right to furnish water
or light for a fixed period.5 So a city cannot, without express
authority, grant to a street railway company the sole and ex-
clusive right to construct and operate street railways in its
streets.'
§ 86. Power to lorroiv money. — The power to borrow money
must be conferred by express authority, or result as an incident
to an express power coupled with the imposition of duties which
are incapable of exercise and performance without the power
to borrow.7 It is not sufficient that it would be convenient to
borrow : it must be necessary to the discharge of the duties im-
posed.8 A limitation on the power to borrow money is destroyed
by a general act empowering the city to construct water- works
and to borrow money therefor.9
v. Saginaw, 23 Fed, Rep. 529; City of < Altgeld v. San Antonio, 81 Tex.
Laredo v. Int Bridge & T. Co., 66 436.
Fed. Rep. 246, 30 U. S. (App.) 110. The » Davenport v. Kleinschmidt, 6
state may grant an exclusive fran- Mont 502; In re Union Ferry Co., 98
chise. X. O. Gas Co. v. La. Light N. Y. 139.
Co., 115 U. S.650. « Jackson Co. H. R Co. v. Inter-
1 Illinois Trust & Sav. Bank v. Ar- state R. Co., 24 Fed. Rep. 306; Xash
kansas City, 40 C. C. A. 257, 34 L. R. v. Lowry, 37 Minn. 261.
A. 518, 76 Fed. Rep. 271, and cases " Mayor v. Ray, 19 WalL(U. S.) 468;
cited. Allen v. La Fayette, 89 Ala. 641, 9
2 Long v. City of Duluth, 49 Minn. L. R. A. 497.
280; Xash v. Lowry, 37 Minn. 261; s Wells v. Salina, 119 N. Y. 280,7
Wright v. Xagle, 101 U. & 791. K R A. 799.
*Xorwich G. L. Co. v. Norwich 9 Button v. Aurora, 114 m. 138.
City G. Co., 25 Conn. 20.
6
82 POWERS OF PUBLIC CORPORATIONS. [§§ 87, 88.
§ 87. Compromise and arbitration. — A public corporation
may compromise claims held against it or held by it against
other persons ; or it may submit claims to arbitration the same
as natural persons.1
§ 88. Poivers of school 'boards — Textbooks. — The powers of
school boards and trustees are purely statutory,2 and vary
greatly in the different states. The board generally has au-
thority to prescribe the text-books which shall be used in the
district. The duty of establishing and maintaining a " general,
uniform and thorough system of public free common schools,"
imposed by the constitution upon the legislature, does not nec-
essarily imply that that body shall establish and maintain a
uniform system of text-books throughout the state. A uni-
form system of free common schools does not require that the
text-books used in the schools shall be uniform throughout the
state.8 When the legislature has not prescribed what books
shall be used, and has not delegated the power to any other
person or body, the trustees of a school district may do so by
virtue of the general control over the school given them by
statute.4 The power may be delegated by the legislature to a
school-book commission.5 An act of the legislature prescribing
the text-books which shall be used in the public schools does
not violate the right of local self-government. It is a power
which may be conferred upon a school board, and in such case
the courts will not interfere.6 The state may prescribe the
text-books and make an exclusive contract to furnish the books
for a certain term.7 The school directors may be compelled by
1 Shawneetown v. Baker, 85 111. 563; cation v. Welch, 51 Kan. 797; Powell
Kane v. Fond du Lac, 40 Wis. 495; v. Board of Education, 97 111. 375, 37
Dix v. Dummuston, 19 Vt. 263; Paret Am. Rep. 123; Richards v. Raymond,
v. Bayonne, 39 N. J. L. 559. See Som- 92 111. 612, 34 Am. Rep. 151.
erville v. Dickerman, 127 Mass. 272. 4 Campana v. Calderhead, 17|54ont.
2 Barry v. Good, 89 CaL 215. 548, 36 L. R. A. 277, annotated, 44 Pac.
3 Campana v. Calderhead, 17 Mont. Rep. 84; State v. Webber, 108 Ind.
548, 36 L. R. A. 277, 44 Pac. Rep. 84; 31, 58 Am. Rep. 30; State v. Dixon
Curryer v. Merrill, 25 Minn. 1, 33 County School District, 31 Neb. 552.
Am. Rep. 450; State v. Haworth, 122 8 State v. Bronson, 115 Mo. 271.
Ind. 462, 7 L. R. A. 240; State v. « Cincinnati Board of Education
Womack, 4 Wash. 19; Effingham v. Minor, 23 Ohio St. 211, 13 Am.
v. Hamilton, 68 Mich. 523; Reno Rep. 233.
County School District v. Shadcluck, 7 Curryer v. Merrill, 25 Minn. 1, 33
25 Kan. 467; Topeka Board of Edu- Am. Rep. 450; State v. Haworth, 122
§ 89.] PARTICULAR POWERS. 83
mandamus to introduce the books -which have been adopted
according to statute,1 and a pupil may be suspended for refus-
ing to procure a prescribed book.2 A parent cannot insist that
his child shall be permitted to use a text-book other than that
prescribed by the board.3 The reading of the Bible as a text-
book in the public schools violates the constitutional provision
prohibiting sectarian instruction,4 but a requirement that the
Bible shall be used as a mere reading book is valid.5 A school
board may prescribe reasonable regulations for the health of
the children and the community.6 For this purpose it may
require all pupils to be vaccinated as a condition precedent to
the right to attend school, although there are no present indi-
cations of an epidemic.7 But it has been held that such a re-
quirement is unreasonable, unless it appears that small-pox
actually exists or there is reasonable cause to anticipate its ap-
pearance.8
II. POLICE POWERS.
§ 89. Nature and scope of the police power. — The police power
of the state is incapable of exact limitation and definition.
Within its scope are included those paramount powers which
may be exercised for the purpose of promoting the general
Ind. 462, 7 L. R. A. 240; State v. 61 Am. Dec. 256. See Board v. Minor,
Blue, 122 Ind. 600. 23 Ohio St 211, 13 Am. Rep. 233.
1 State v. Roberts, 74 Mo. 21. For A statute to the effect that the Bible
the construction of particular stat- shall not be excluded, but that no
utes regulating the adoption of text- pupil shall be required to read it
books, see Iverson v. Indianapolis contrary to the wishes of his par-
School Commissioners, 39 Fed. Rep. ents, is constitutional. Moore v.
735; People v. State Board of Edu- Monroe, 64 Iowa, 364, 52 Am. Rep.
cation, 40 CaL 684; Jones v. Detroit 444,
Board of Education, 88 Mich. 371. 6 Duffield v. "Williamsport School
2 But see Ruilson v. Post, 79 Ind. District, 162 Pa. St 476, 25 L. R. A.
567; Trustees v. People, 87 Iowa, 305. 152.
3 Lake View School Trustees v. " Bissell v. Davidson, 65 Conn. 183,
i-_ pie, 87 111. 303. See Reno County 29 L. R. A. 251.
School District v. Shadduck, 25 Kan. 8 potts- v. Breen, 167 III 67, 60 HI.
467; Dobbs v. Stauffer, 24 Kan. 127. App. 201, 47 N. E. Rep. 81. Power of
4 Weiss v. Edgerton School Dis- school directors to contract, see
trict Board, 76 Wis. 177, 7 L. R. A. Everts v. District Township, 77 Iowa,
330, 20 Am. St. Rep. 41, note, p. 69. 37, 14 Am. St Rep. 264 As to sep-
As to what constitutes a sectarian arate schools for black and white
school, see Cook Co. v. Industrial children, see Lehew v. Brummell,
School, 125 111. 540, 8 Am. St Rep. 103 Mo. 546, 23 Am, St Rep. 895, an-
386, annotated. notated.
5 Donahoe v. Richards, 38 Me. 379,
84 POWERS OP PUBLIC CORPORATIONS. [§ 89.
comfort and welfare of society. Being a governmental power,
it may be delegated by the legislature to a public corporation.
It extends to the protection of the lives, persons and health of
the people, and to all the property within the state. Any oc-
cupation which is of such a nature as to be liable to create a
nuisance, unless subjected to special regulation, comes within
the scope of its operation.1 All property is held subject to its
proper exercise.2 "While a wide range of discretion must be
left to the body exercising this power, it is necessarily limited
by the purpose for which the power exists. Acts done under it
must have some relation to the appropriate end. The rights of
property cannot be invaded under a pretense of the police power,
when it is apparent that the power is in fact sought to be used
for a different purpose.3 The power must be exercised so as not
to conflict with the constitutional rights of the people.1 The
various powers which fall under the general name of police
powers are ordinarily specifically enumerated. In addition
thereto, municipal charters commonly contain a general pro-
vision authorizing the exercise of powers necessary to preserve
the peace and good order of the community and promote the
public welfare. Much discretion must necessarily be left to
the corporation ; and it has been held that where a council is
given power to make such regulations as it shall deem neces-
sary and requisite for the security, welfare and convenience of
the corporation, it has the right to judge as to what ordinances
are necessary to preserve the health of the people of the mu-
nicipality.5
i Munn v. Illinois, 94 U. S. 113; Ray- Institute v. Milwaukee Co. (Wis.), 36
mond v. Fish, 51 Conn. 80, 50 Am. L. R. A. 58. See § 97.
Rep. 3; State v. Orr, 68 Conn. 101, 28 2RideOut v. Knox, 148 Mass. 368,
L. R. A. 279; People v. Bennett, 83 2 L. R. A. 81; Health Dept. v. Rector,
Mich. 457; Welsh v. Boston, 126 Mass. 145 N. Y. 32, 27 L. R. A. 710.
442, note; Ogden City v. McLaugh- 8Chaddock v. Day, 75 Mich. 591, 13
lin, 5 Utah, 387; Monroe v. City of Am. St. Rep. 468; Ex parte Tuttle,
Lawrence, 44 Kan. 607; Bittenhaus 91 Cal. 589; Ritchie v. People, 155 111.
v. Johnson, 92 Wis. 595, 32 L. R. A. 98, 29 L. R. A. 79; State v. Donald-
380. A statute which is for the bene- son, 41 Minn. 74
fit of private parties, which requires 4In re Jacobs, 98 N. Y. 98, 50, Am.
a county to pay for the treatment Rep. 636; St. Louis v. Webber, 44
of habitual drunkards who are not Mo. 547; Ex parte Whitwell, 98 CaL
financially able to pay for their own 73, 19 L. R A. 727; Seep v. St. Louis,
treatment, cannot be sustained under etc. R. Co., 58 Ark. 407, 23 L. R. A. 264.
the police power. Wisconsin Keeley 6 City of St. Paul v. Colter, 12 Minn.
§ 90.] PARTTQri.AR POWEES. 85
§90. Regulation of occupations and amusements. — Neither
the state nor municipalities can prohibit the prosecution of a
harmless business; but it may subject all manner of occupations
and amusements to such reasonable regulations as are necessary
in order to protect the interests of the public. "When the busi-
ness or occupation is of such a character as to threaten possible
injury to the public, it becomes subject to reasonable restrictions
by virtue of the police power. But it is only for the purpose
of promoting the public health, welfare and morals that such
interferences with private rights will be upheld.1 Certain kinds
of occupations which are illegal or immoral per #<?, such as
gambling,2 may be prohibited ; but an ordinance which author-
izes the police to seize and destroy gambling implements with-
out notice to the owner is void, because depriving the owner
of his property without due process of law.3 But occupations
not unlawful can only be regulated. Thus, a city council may
prohibit the carrying on of a laundry except in certain locali-
ties and during certain hours ; but it cannot arbitrarily refuse
to issue a license to run a laundry to a person without refer-
ence to the character or qualifications of the applicant.4 So a
city may prohibit the keeping of a house of ill-fame, and im-
pose penalties upon the owners of a building leased for that
purpose;5 but it cannot prohibit the leasing of a house to a
prostitute simply as a place of residence.
Power to regulate a business must be exercised through the
adoption of rules and regulations as to the manner in which it
shall be conducted, and not by the municipality itself engaging
in the business.6 The business of selling intoxicating liquors is
a proper subject of police regulation.7 Thus, a city may by or-
dinance prohibit the sale of liquors and wines in places where
musical or theatrical entertainments are given and where fe-
41, 90 Am. Dec. 278; Suinmerville v. *Barbier v. Connelly, 113 U. S.-27;
Pressley, 33 S. C. 56, 8 L. R, A. 854; Tick Wo v. Hopkins, 118 U. S. 356;
New Orleans Gas Light Co. v. Hart, State v. Taft, 118 N. C. 1190, 23 S. E
40 La. Ann. 474, 8 Am. St. Rep. 544, Rep. 970, 32 L, R. A. 122.
note. 5 McAllister v. Clark, 33 Conn. 91.
]Ex parte Mirande, 73 CaL 365; Cont ra, as to the owners of the prem-
St. Louis v. Fitz, 53 Mo. 582. ises, State v. Webber, 107 N. C. 962.
2 Odell v. Atlanta, 97 Ga. 670, 25 S. 6 Rippe v. Becker, 56 Minn. 100, 22
E. Rep. 173. L. R A. 857.
3 Lowry v. Rainwater, 70 Mo. 152, " Crowley v. Christensen, 137 U. S.
35 Am. Rep. 420. 86.
86 POWERS OF PUBLIC CORPORATIONS. [§ 91.
males attend as waitresses.1 So it may provide that cider shall
not be sold in quantities of less than a gallon, or drank on the
premises.2 A wider discretion on the part of the corporation
is recognized in respect to exhibitions and amusements than in
the case of trades and useful occupations; and a still wider dis-
cretion is allowed where the business is of such a nature as to
be liable to degenerate into a nuisance, or tend to promote dis-
order and crime.3
§ 91. The preservation of liealtli. — The protection of the
health of the people is one of the principal purposes for which
muicipal corporations are created, and every presumption will
be indulged in favor of an ordinance having this for its object.4
The instances in which this power has been exercised are
innumerable. For illustration, a municipality may regulate
slaughter-houses,8 the burial of the dead,6 the cleaning and care
of sinks and cesspools,7 and the kind and quantity of certain
products, such as rice, which may be cultivated within the cor-
poration limits.8 So it may establish quarantine regulations,9
and remove persons who are affected by a contagious disease,
or who have been exposed to the same, to places of detention,
and prevent communication with them.10 It has been held that
1 Ex parte Hayes, 98 Cal. 555, 20 8 Green v. Savannah, 6 Ga. 1 ; Sunl-
it R. A. 701. merville v. Pressley, 33 S. C. 56.
2 Lawrence v. Monroe, 44 Kan. 607, 9 Railway Co. v. Huesen, 95 U. S.
10 L. R A. 520. 465; Train v. Boston Disinfecting
SMankato v. Fowler, 32 Minn. 364. Co., 144 Mass. 523, 59 Am. Rep. 113;
* Greenboro v. Ehrenreich, 80 Ala. Markham v. Brown, 37 Ga. 277, and
579, 60 Am. Rep. 130. note to this case, 92 Am. Dec. 76,
8Watertown v. Mayo, 109 Mass, where the cases are collected;
315; St. Paul v. Byrnes, 38 Minn. 176; Thomas v. Mason, 39 W. Va. 526, 26
Huesing v. Rock Island, 128 111. 465, L. R. A. 727, and extensive note on
15 Am. St. Rep. 129; The Slaughter powers and liabilities of municipal-
House Cases, 16 Wall. (U. S.) 36; ities in times of epidemics; Hm?st v.
Butchers v. Crescent City, 111 U. S. Warner, 102 Mich. 238, 26 L. R. A.
746; Beiling v. Evansville, 144 Ind. 484, and note on quarantine regula-
644, 42 N. E. Rep. 621. tions by health authorities. Parties
6 Bogaert v. Indianapolis, 13 Ind. dealing in second-hand clothing may
134; Coates v. Mayor, 7 Cow. (N. Y.) be required to disinfect it. State v.
585; Re Bohan, 115 Cal. 372, 36 L. R. Taft, 118 N. C. 1190, 32 L. R A. 122.
A. 618. 10 Harrison v. Baltimore, 1 Gill
7Nicoulin v. Lowery, 49 N. J. L. (Mel.), 202; Clinton v. Clinton Co., 61
391; Commonwealth v. Cutter, 156 Iowa, 205; Elliott v. Kalkaska Sup.,
Mass. 52, 29 N. E. Rep. 1146. 58 Mich. 452, 55 Am. Rep. 706.
§ 91.] PAETTCULAB POWERS. 87
by virtue of the police power the city may contract for the
boring of an artesian well,1 on the theory that nothing can be
of greater concern to the community than a sufficient supply
of wholesome water.2 So a city may provide that an article of
food, such as milk, which does not reach a prescribed standard,
or trees which have the contagious disease known as the "yel-
lows/'3 shall be destroyed without compensation to the owner.
Every man holds his property under the implied obligation that
it shall not be injurious to the community. " The exercise of
the police power," said Mr. Justice Harlan, " by the destruc-
tion of property which is itself a public nuisance, or the pro-
hibition of its use in a particular way, whereby its value be-
comes depreciated, is very different from taking property for
public use, or from depriving a possessor of his property with-
out due process of law." 4 An ordinance requiring venders of
milk to furnish gratuitously, on application of sanitary inspect-
ors, samples of milk not exceeding a half pint for inspection
and analysis, is within the exercise of police power.5 Although
a corporation has power to prevent articles of merchandise or
other things which have been used by persons or in places in-
fected with contagious disease from being brought within its
limits, establish quarantine and reasonable inspection regula-
tions, and provide for disinfecting and destroying the germ of
the disease as far as practicable, it can go no further than is
necessary in order to secure protection. Thus, it has no power
to declare it unlawful to sell meat or other food, or to deal in
!Hale v. Hough ton, 8 Mich. 458; after due inspection, is a remedy
Suffield v. Hathaway, 44 Conn. 521. which, however severe, is one ap-
2 Smith v. Nashville, 88 Tenn. 464, propriate to the end in view, and
12 S. W. Rep. 924. may properly be enforced without
3 State v. Maine (Conn.), 37 AtL any preliminary judicial inquiry, as
Rep. 80 (1897). Mr. Justice Baldwin well as without any compensation
said: "A widespread apprehension to the owner for resulting loss."
throughout the community justifies State v. Woodin, 56 Conn. 216; Pow-
itself, and is a sufficient basis for ell v. Pennsylvania, 127 U. S. 678.
legislative action toward the re- 4Mugler v. Kansas, 123 U. S. 623;
moval of the cause, real or supposed, Deems v. Baltimore, 80 Md. 164, 26
of the danger apprehended, where L. R. A. 541; Taunton v. Taylor, 116
this cause is a deadly disease of a Mass. 254; Brown v. Keener, 74 X. C.
food-producing tree. Bissell v. Dav- 714.
ison, 65 Conn. 183, 191, 32 Atl. Rep. 5 State v. Dupaquier, 46 La. Ann,
348. The destruction of the infected 577, 26 L. R. A. 162,
trees by order of a public official,
88 POWERS OF PUBLIC CORPORATIONS. [§ 92.
second-hand or cast-off clothing.1 A lawful business, not in
itself necessarily a nuisance, which may be conducted without
danger to the community when properly regulated, cannot be
prohibited.2
§ 92. Nuisances. — Municipal corporations are ordinarily given
power to abate nuisances. It can be exercised only when the
act or thing is an actual nuisance, and its abatement required
in order to preserve the health and safety of the community.3
A corporation cannot make a thing a nuisance by merely say-
ing that it is one.4 " It is a doctrine not to be tolerated "in this
country," said Mr. Justice Miller, " that a municipal corpora-
tion without any general laws, either of the city or of the state,
within which a given structure can be shown to be a nuisance,
can, by its mere declaration that it is one, subject it to removal
by any person supposed to be aggrieved, or even by the city
itself. This would place every house, every business, and all
the property in the city at the uncontrolled will of the tem-
porary local authorities." 6 Ordinarily, there must be a judicial
determination of the fact that the thing complained of is a nui-
sance, although the state may confer upon the municipality the
power to abate nuisances summarily without formal legal pro-
ceedings.6 The remedy must not be more stringent than the
necessities of the case require. Thus, where the nuisance con-
sists in the improper use of a building, a city cannot legally
!Greenboro v. Ehrenreich, 80 Ala. fillan, 36 Minn. 298; Dingley v. Bos-
579, 60 Am. Rep. 130. ton, 100 Mass. 544; Cole v. Kigler, 64
2 State v. Taft, 118 N. C. 1190,23 Iowa, 59; Everett v. Marquette, 53
S. E. Rep. 970, 32 L. R. A. 122. Mich. 450. " An ordinance cannot
3 Ex parte Robinson, 30 Tex. App. transform into a nuisance an act or
493, 17 S. W. Rep. 1057. thing not treated as such by the stat-
*Des Plaines v. Poyer, 123 111. Ill; utory or common law." Grossman
Ex parte O'Leary, 65 Miss. 80, 7 Am. v. Oakland (Oreg.), 37 L. R. A. 5'j;j.
St. Rep. 640; Tissot v. Greath South. In this case an ordinance absolutely
Tel. Co., 39 La. Ann. 996, 4 Am. St. prohibiting a railroad company from
Rep. 248; State v. Mott, 61 Md. 297, inclosing its track in the platted por-
48 Am. Rep. 105; Cole v. Kegler, tions of the city, and providing that
64 Iowa, 69; Grossman vv Oakland such inclosure should be a nuisance,
(Oreg.), 37 L. R. A. 593, and note on was held invalid, although the char-
power of municipal corporation to ter conferred power to declare what
define, prevent and abate nuisances, shall constitute a nuisance.
8Yates v. Milwaukee, 10 Wall. 6 Baumgartner v. Hasty, 100 Ind.
(U. S.) 497. See, also, St Paul v. Gil- 575; King v. Davenport, 98 111. 305.
§§ 93, 94.] PAKTICULAS POWERS. 89
cause the building to be destroyed.1 "What constitutes a nui-
sance must depend upon the particular circumstances of the
case. Thus, a structure or act may be a nuisance in a certain
locality and not so in another. This is true of smoke, ringing
of bells, a tallow factory, blacksmith shop, blasting of rocks,
sawing of marble, and the noise of a circus.2 The ordinary
remedy for the abatement of a nuisance is by indictment, al-
though the municipality is also entitled to proceed by way of
injunction.3
§ 93. Regulation of wharves. — A city may, under the police
power, require that certain wharves and waters shall be used
by certain classes of boats only. Such regulations do not de-
prive the owners of the wharves of their property without due
process of law. They are valid because rendering more con-
venient and safe the transaction of business in the harbor.4
§ 94 Licenses. — Power to license occupations and. amuse-
ments must be plainly conferred, or it cannot be exercised by
a municipal corporation.5 A license may be imposed either as
a tax or as a police regulation. When imposed as a tax, its
validity is determined by the principles governing taxation.
"When imposed as a police regulation, it must be for the pur-
1Shepard v. People, 40 Mich. 487; brace, although the fruit of it should
Czarnieeke's Appeal (Pa. St.), 11 AtL. be the sights and sounds and smells
Rep. 660. of a common seaport and ship-build-
2 Harmon v. Chicago, 110 I1L 400; ing town, which would drive the
St. Paul v. Gilfillan, 36 Minn. 298; dryads and their masters from their
Davis v. Sawyer, 133 Mass. 289; Leets ancient solitudes."
v. Pilgrim Church, 14 Mo. App. 590; 'State v. Anwerda, 40 Iowa, 151;
Bowen v. Mauzy. 117 Ind. 258; Me- Ottawa v. Chinn, 75 Iowa, 405; New-
Kean v. See, 51 N. Y. 300; Hunter v. ark Aqueduct Board v. Passaic, 45
Farren, 127 Mass. 481; Inchbold v. N. J. Eq. 393; Stearns Co. v. St.
Robinson, L. R. 4 Ch. App. 388. The Cloud, etc. Co., 36 Minn. 425.
fact that the conditions constituting * Gushing v. The John Frazer, 21
a nuisance are not the same at all How. (U. S.) 184; Backus v. Detroit,
times and places, and that esthetic 49 Mich. 110, 43 Am. Rep. 447, where
ideas must sometimes be sacrificed the right of a city to establish a
to the demands of commerce, is thus public wharf without regard to the
expressed by Lord Justice James in question whether a riparian owner
Selvin v. North Brancepeth Coal Co., has title to the land under water is
L. R. 9 Ch. App. 705: " If some pict- fully discussed,
uresque haven opens its arms to in- 5 State v. Itzkovitch, 49 La. Ann.
vite the commerce of the world, it 366, 21 So. Rep. 544
is not for this court to forbid the em-
90 POWERS OF PUBLIC CORPORATIONS. [§ 94.
pose of preventing some threatened evil, and must not exceed
in amount a sum sufficient to cover the expenses of issuing the
license and the expense of police supervision.1 It may be re-
quired " for the purpose of insuring the proper police super-
vision, whenever the character of the trade or business is such
that the absence of police supervision would occasion injury to
the public dealing with those engaged therein, either because
the trade requires a certain degree of skill and professional
qualification, or because it furnishes abundant opportunities
for the perpetration of fraud, which, without police supervision,
would very likely prove successful." 2 As stated by Mr. Justice
Mitchell,3 " It is undoubtedly the law that the right to license
must be plainly conferred or it will be held not to exist. The
power to make by-laws relative to specified lawful occupations,
or the general power to pass prudential by-laws in reference
to them, would not as a general rule authorize the municipal
corporation to exact a license from those carrying on such
business. But in view of the very important bearing which
the scavenger business has upon the public health, and the im-
perative necessity, from sanitary considerations, that such work
should be intrusted only to those who are competent and prop-
*Mankato v. Fowler, 32 Minn. 364; further expressly provides that the
Von Baalen v. People, 40 Mich. 258, council may pass ordinances 'to li-
36 Am. Eep. 522, and authorities cense, tax and regulate wheeled
cited in note. In Tomlinson v. In- vehicles.' This is a police power
dianapolis, 144 Ind. 142, 36 L. R. A. and not a taxing power. Indian-
413, the court said: "The only con- apolis v. Bieler, 138 Ind. 30. The fee
tention, in truth, which can be plau- charged is but $3 per year. Nor is
sibly urged against the ordinance is it any objection to this conclusion
that it charges those who drive upon that some revenue arises to the city
the streets but live outside the city from the fees collected, or that such
limits the same license fees charged revenue is applied to the repair of
against those who reside within the the streets. The streets are used,
city; but we do not think that the and in part worn out, and put in a
ordinance can for this reason be condition needing repair, by tine ve-
held invalid. The common council, hides that are charged the license
as we have seen, is given by the fee. See Rochester v. Upham, 19
statute power to pass ordinances 'to Minn. 108 (Gil. 78); State v. Cassidy,
regulate the use of streets aud alleys 22 Minn. 321, 21 Am. Rep. 765."
by vehicles.' This provision would 2Tiedeman, Limitations on Police
of itself be sufficient authority to Power, g 101.
sustain the ordinance. The power 3 State v. McMahon (Minn.), 72 N.
to regulate implies the power to li- W. Rep. 79 (1897); Ex parte Garza, 28
cense and to exact a reasonable fee Tex. App. 381, 19 Am. St. Rep. 845,
for such license. But the statute
§ 94:.] PARTICULAE POWERS. 91
erly equipped to perform it, we are of the opinion that the
grant of power to make such regulations and to ordain such
ordinances as may be necessary and expedient for the preser-
vation of health and to prevent the introduction of contagious
diseases, conferred authority on the common council, as one
means of regulating the scavenger business, to require a license
from those carrying it on and to prohibit any one from doing
so without a license." 1
The power to tax is distinct from the police power. Its pur-
pose is revenue, while police power is for the purpose of reg-
ulation. Thus, a license charge imposed on hackmen of forty
dollars per year is clearly intended for the purpose of raising
revenue, and not for the purpose of regulation, and hence can-
not be sustained under the police power.2 But an annual license
fee of eight dollars, and the cost of numbering the hack, not
exceeding twenty-five cents, is valid as a police regulation.3
Under the police power a municipal corporation may, under
proper authority, require a license from peddlers, hackmen,
draymen, omnibus drivers, retail liquor dealers, showmen, green
grocers,,billiard saloons, pawnbrokers, milk dealers, livery-stable
keepers, plumbers, bakers and auctioneers.4 An ordinance pro-
viding for a peddler's license which discriminates against non-
residents and goods not manufactured within the municipality
is void as an attempt to regulate commerce.5 Power to license
and regulate saloons will not authorize an ordinance forbidding
the use of door screens and window blinds in the windows and
iBoehm v. Baltimore, 61 Md. 259; Traeger, 25 Minn. 248; Barling v.
Chicago, etc. Co. v. Chicago, 88 111. West, 29 Wis. 307; People v. Wag-
221: Kinsley v. Chicago, 124 III 359, ner, 86 Mich. 594; State r. Cassidy, 23
19 N. E. Rep. 260. Under a statute Minn. 312. For a collection of cases
authorizinga city "to restrain hawk- and illustrations of ordinances impos-
ing and peddling," a city may re- ing license fees, see State v. French,
quire a license from peddlers. South 17 Mont. 54, 39 L. R A. 415, and note.
Bend v. Martin, 142 Ind. 31, 29 L. As to the reasonableness of ordi-
L. A. 531. nances of that character, see § 239,
2 Jackson v. Newman, 59 Miss. 385, and also English and American notes
42 Am. Rep. 367. to the case of John v. Mayor of Cong-
3 Ex parte Gregory, 20 Tex. App. don, 7 Eng. Rul. Cas. 278.
210, 54 Am. Rep. 516. 5 Walton v. Missouri, 91 U. S. 275;
4 Schumann v. Ft. Wayne, 127 Ind. Marsha-lltown v. Bloom, 43 Am. Rep.
109, 11 L. R A. 378: Chicago v. Bar- 116, 58 Iowa, 184. See State v. Whee-
tree, 100 HL 57; State Centre v. Bar- lock, 95 Iowa, 577, 30 L. R A. 429.
enstein, 66 Iowa, 249; SL Paul v.
92 POWERS OF PUBLIC CORPORATIONS. [§ 95.
openings of a saloon. Such an ordinance to be reasonable must
be confined in its operations to such times as the saloon is not
allowed to do business, as on Sundays and holidays.1 A city
may be authorized to require a license for the use of the streets
by vehicles without reference to their business.2 So it may
require a license from those engaged in a business which re-
quires them to go from a place outside of the city to a place
within the city, such as a stage 3 or dray line.4
§ 95. Markets. — The state commonly delegates to municipal
corporations power to establish and regulate markets. This
power is of a police nature and is designed to protect the health
and well-being of the community. A market " is a designated
place in a town or city to which all persons can repair who
wish to buy or sell articles there exposed for sale. They have
been found to be a public convenience when properly regulated.
Such regulations as the city authorities may adopt in regard
to them should have and generally have reference to the pres-
ervation of peace and good order and the health of the city.
They should be of a police and sanitary character, and an at-
tempt by color of regulations to restrain trade is an abuse of
the power."5 The market may be placed under the general
supervision of the police or of an officer specially appointed for
that purpose. Those enjoying market privileges may be re-
quired to pay a license therefor.6 Under power to establish
and regulate markets, a city may prohibit the sale of certain
articles, such as oysters or beef, at any place other than the
market during market hours.7 But the authority to prohibit
the " sale of vegetables during market hours " will not author-
iChamper v. Greencastle, 138 Ind. City of Philadelphia, 33 Pa. St 202;
339. New Orleans v. Stafford, 27 La. Ann.
2Tomlinson v. Indianapolis, 144 393, 21 Am. Rep. 561; Robinson v.
Ind. 142. See cases collected in a Mayor of Franklin, 1 Humph. 100,
note to this case in 36 L. R. A. 413. 34 Am. Dec. 625, note; Bethune v.
3 Sacramento v. Colorado Stage Hughes, 28 Ga. 560, 73 Am. Dec. 789,
Co., 12 Cal. 132. and note on page 793.
4 East St. Louis v. Bux, 43 111. App. 6 Cincinnati v. Buckingham, 10
276. See Cary v. North Plainfield, 49 Ohio, 257.
N. J. L. 110. 7Ex parte Canto, 21 Tex. App. 61,
»Caldwell v. City of Alton, 33 111. 57 Am. Rep. 609; Newson v. Galves-
416, 85 Am. Dec. 282, and note citing ton, 76 Tex. 559, 7 L. R. A. 797.
many cases. See, also, Warthman v.
§ 96.] PASTICULAB POWEKS. 93
ize the prohibition of such sales at other times.1 Power to es-
tablish and regulate markets carries with it power to purchase
a site and erect the necessary buildings thereon.1 Such power
will not authorize the construction of a market building in a
public street.3 But when a city establishes a market in a por-
tion of a public street duly condemned for that purpose, the
owners of abutting property have no right of action against
the city for damages caused thereby.4 An ordinance which de-
prive the producers of market articles of their own raising
from selling their produce at first hand to consumers in the
principal city market, and compels them to be sold by holders
of stalls at second hand, is void.5
§ 96. Prevention of fires. — A municipal corporation may, in
the exercise of its power to protect the lives and property of
its citizens, take all reasonable measures to prevent the rise
and spread of conflagrations. It may prescribe fire limits and
prohibit the construction of wooden buildings within such
limits. "When it has enacted such a prohibition, it may destroy
a building erected in violation thereof without judicial pro-
ceedings. This power is generally held to be inherent in the
corporation,6 although some courts hold that it must be ex-
pressly conferred.7 The municipality may legally forbid the
erection of a wooden building within the fire limits, although
o t o
the contract for its construction was made before the ordinance
determining the limits was enacted.8 Under the pressure of a
1 State v. St. Paul, 32 Minn. 329. from having convenient access to
The authorities upon this point are customers. Hughes v. Recorder's
conflicting. See note to Robinson v. Court of Detroit, 75 Mich. 574, 4 L.
Franklin, 34 Am. Dec, 638, 1 Humph. R. A. 86&
156. 6 See Baumgartner v. Hastings, 100
2Caldwell v. City of Alton, 33 III Ind. 575; Eischenlaub v. St. Joseph,
416. 113 Ma 395, 18 L. R. A. 590; King v.
3 Warthman v. Philadelphia, 33 Pa. Davenport, 98 HI 305, 38 Am. Rep.
St. 203; State v. Moyor, 5 Port. (Ala.) 89; Charleston v. Reed, 27 W. Va.
279; St. John v. Mayor, 3 Bosw. 681, 55 Am. Rep. 336; Klinger v.
i X. Y.) 483. Bickel, 117 Pa. St 326 ; Pratt v. Litch-
4 Xinkle v. City of Detroit, 49 Mich, field, 62 Conn. 112.
249, 43 Am. Rep. 464. ?Des Moines v. Gilchrist, 67 Iowa,
5 " A city has no right, and the city 210; Knoedler v. Norristown, 100 Pa.
has never been empowered, to shut St. 368; Pye v. Peterson, 45 Tex. 312.
out the producers of fresh provisions 8 Knoxville v. Byrd, 12 Lea (Tenn.),
and similar farm and garden articles 121.
94: POWEES OF PUBLIC COEPOBATIONS. [§ 97.
controlling public necessity, even " where the owners themselves
have fully observed all their duties to their fellows and to the
state," private property may be taken and destroyed when
necessary to prevent the spread of fire, " the ravages of pesti-
lence, the advance of a hostile army, or any other great public
calamity." l
§ 97. Care of the indigent and infirm. — The care of the in-
digent and the infirm in body, mind and morals is a duty which
may properly be imposed upon a public corporation. Thejnsane,
the criminal and the pauper constitute a charge upon the com-
munity, and the expenses of their care may be met by taxa-
tion. Schools, almshouses and hospitals, when under the con-
trol of the public and open to all who need aid, are public in-
stitutions. But the power of taxation cannot be employed to
support such institutions when they are under the control of
private persons who are not accountable to the government.2
These general principles have been recently discussed in con-
nection with cases growing out of the movement for the care
and treatment of habitual drunkards. The decisions have not
been uniform, but the rule will probably be established that
the public money may legally be used for this purpose. It was
held in Maryland that an act authorizing the sending of any
habitual drunkard for treatment to any institution within the
state at the expense of the county or city, if neither the patient
nor the petitioning kinsmen are financially able to pay the ex-
penses, is valid.8 The court said: "There can be no doubt as
to the power of the legislature to require the payment by the
city of a sum requisite to defray the expense of maintenance
and medical treatment of an habitual drunkard residing within
the corporate limits." The decision seems to regard the act as
a proper exercise of the police power. The same principle
appears to be recognized in Colorado, although the decision
turned upon questions of construction. It was there held that
1 Cooley, Const. Lim. (4th ed.) 746; detrimental to the public health it
Saltpetre Case, 6 Coke, 206; Meeker may be destroyed. Dunbar y. Au-
v. Van Rensaeller, 15 Wend. 397 ; gusta, 90 Ga. 390.
McDonald v. Red Wing, 13 Minn. 2 Hare, Am. Const. Law, I. p. 280.
38, Gil. 25; Jones v. Richmond, 18 3 Baltimore v. Keeley Inst. of Mary-
Grat, 517. If damaged grain stored land (Md.), 27 L. R. A. 647 (1895).
within the limits of a city be found
§ 97.] PABTICCLAB POWERS. 95
the treatment of inebriates by a private corporation at the ex-
pense of a county is not the performance of a municipal func-
tion, and that such an appropriation of the county funds is not
an appropriation of state moneys within the meaning of the
constitution.1 In Wisconsin a statute providing for the com-
mitment of habitual drunkards who have not the means to pay
for treatment to some institution within the state to be desig-
nated in the order, " provided that the expense of treatment in
each case shall not exceed the sum of one hundred and thirty
dollars, which sum shall cover and include all expenses for treat-
ment, medicines and board for four weeks, and such expense
shall be paid by the county," was held not within the police
power of the state and hence unconstitutional, because requir-
ing the county to expend the proceeds of taxation for a private
purpose. The beneficiaries were not " poor " in the technical
sense of the word, — destitute, in extreme want or helpless-
ness. They were not the subjects of public charity, nor af-
flicted with a contagious or infectious disease. "The question
then arises," says Chief Justice Cassoday, " whether any county
can be compelled to pay any private party for treatment, med-
icines and board of any resident therein having a disease not
contagious or infectious, merely because such diseased person
has not the means to pay for such treatment. If a county may
be compelled to make such payment for such treatment, medi-
cine and board of a person having such a disease, then it logic-
ally follows that every county may be compelled to pay pri-
vate parties for treatment, medicines and board of any person
having any disease, though not contagious or infectious, pro-
vided the victim has not the present means of making such pay-
ment himself. We are clearly of the opinion that no such
power exists." 2
1 Re House, 23 Colo. 87, 33 L. R A. proper delegation of authority. But
832 (1896). The case of Senate of it may reasonably be inferred that
Happy Home Club v. Alpena County, the act would have been sustained
99 Mich. 117, 23 L. R A. 144, sustains on general principles,
the constitutionality of the Michi- 2 Wisconsin Keeley Inst, Co. v. Mil-
gan "Jag Law." In Forman v. Hen- waukee County (Wis.), 36 L. R A.
nepin Co.. 04 Minn. 371. 67 N. W. Rep. 55 (1897). See a criticism of this
207 (1896), the act was held invalid case in 31 Am. Law Rev. 616.
because attempting to make an im-
CHAPTER Vll.
PARTICULAR POWERS — CONTINUED.
L POWEKS RELATING TO STREETS
AND HIGHWAYS.
§ 98. Power over streets.
99. Rights of abutting owners.
100. The proper uses of a street.
101. Obstructions.
102. Temporary uses of street.
103. Power to improve streets.
104. Gas and water pipes.
105. Projecting doors, windows,
porches.
106. Railroads in streets.
107. Conditions imposed.
108. Telegraph and telephone poles.
109. Additional servitudes — Com-
pensation to abutting own-
ers.
110. Railways as additional bur-
dens.
§ 111. Telegraph and telephone poles
as additional burden.
IL TAXATION AND SPECIAL ASSESS-
MENTS.
112. Power of taxation.
113. Nature of special assessments.
114. Their constitutionality.
115. Purposes for which local as-
sessments may be levied.
116. Method of apportionment
117. By benefits.
118. The frontage rule.
119. Property exempt from taxa-
tion.
120. Collection of assessments.
121. Personal liability for assess-
ments.
I. POWERS RELATING TO STKEETS AND HIGHWAYS.
§ 98. Power over streets. — The legislature has paramount
authority over the streets and highways of a city, and may
delegate this power to municipal corporations. It may open
and vacate such streets and highways at its will.1 This gen-
eral power is not taken away and conferred upon municipali-
ties by a constitutional provision to the effect that the state
shall not be interested in any work of internal improvement or
vacate or alter any road laid out by the commissioners of high-
ways or any street in any city or village. The muni(?ipality
continues to act as the agent of the legislature in granting
privileges in its streets.2 But the people have a right to use
iWabash R. Co. v. Defiance, 167
U. S. 88; Gray v. Iowa Land Co., 26
Iowa, 387; O'Connor v. Pittsburgh,
18 Pa. St. 187; People v. Walsh, 96
111. 232; Northern Transportation Co.
v. Chicago, 99 U. a 6*5; Elliott,
Roads and Streets, §562; Prince v.
Crocker, 166 Mass. 347, 32 L. R. A. 610.
2 Detroit Citizens' St Ry. Co. v.
Detroit (Mich.), 68 N. W. Rep. 304, 35
L. R. A. 859 (1896).
§§ 99, 100.] PAETICULAK POWERS. 97
the streets for proper purposes, and the legislature cannot
under this general power prevent such use.1 The control over
streets and highways is ordinarily given to cities when they
fall within municipal limits, and to counties and towns when
within their limits. Conflicting claims must be determined by
an examination of the charter of the municipality or of the
general laws of the state.2
§ 99. Rights of abutting owners.— The rights of the public
and of an owner of property abutting on a street are some-
times conflicting. Such an owner has the rights common to
the general public, and in addition thereto certain rights not
shared by the public at large which arise out of the relation in
which his lot stands to the street in front of it. " These rights,"
says Judge Dillon, "whether the fee of the street is in the
lot-owner or in the city, are rights of property, and are as
sacred from legislative invasion as the right to the lot itself.
In cities the abutting property is especially dependent upon
sewer, gas and water connections; for these the owner has to
pay or contribute out of his own purse. He has also to pay
or contribute toward the cost of sidewalks and pavements.
These expenditures, as well as the relations of his lot to the
street, give him a special interest in the street in front of him
distinct from that of the public at large. He may make, as of
right, all proper uses of the street, subject to the paramount
right of the public for all street uses proper, subject to reason-
able and proper municipal regulations. Such rights being
property rights are, like other property rights, under the pro-
tection of the constitution." *
§ 100. The proper uses of a street. — The primary purpose
for which streets and highways are dedicated is free and unob-
structed passage. But this means more than the mere right
to drive or walk along the street. In an ordinary highway
1 Anderson v. Wellington, 40 Kan. l The conflicting rights of the pub-
173, 2 L. R A. 110; People v. Arm- lie and abutting owners are elab-
strong, 73 Mich. 2S& orately discussed in the New York
2 Cowan's Case, 1 Overton (Tenn.), Elevated Railway cases. See Story
811; Bell v. Foutch, 21 Iowa, 119; v. N. Y. Elev. R Co., 90 N. Y. 122,
State v. Putnam Co. Convrs, 23 Fla. and Lahr v. Metro. Elev. R Co., 104
632. N. Y. 268,
7
98 POWERS OF PUBLIC CORPORATIONS. [§§ 101, 102.
the public requires only the easement of passage and its inci-
dents, but a wider use is required of the streets of a city.
Hence the municipality, when acting under proper authority,
may permit the streets to be used for any purposes which are
not inconsistent with the primary purpose for which they were
dedicated.1
§ 101. Obstructions. — The right of free transit is thus sub-
ject to certain necessary and reasonable restrictions. Certain
things may constitute a partial obstruction which are never-
theless in aid of the primary purpose of the street.. Others
may be legally authorized for a short time because of the neces-
sities of the case. But such obstructions must be reasonable;
and if an abutting owner is thereby deprived of his easement
of access, he can recover damages from the person placing the
obstruction in the street, although it was placed there with the
consent of the authorities.2
§ 102. Temporary uses of street. — A city may properly per-
mit the use of a street for the temporary deposit of building
material, and may require persons desiring to thus temporarily
use the street to give a bond for the protection of the city
against damages caused by the improper use of the privilege.3
But such obstructions must not be permitted to remain so long
as to create a nuisance.4 So, a street may be used temporarily
for moving buildings 5 or unloading cars ; 8 but in all such in-
stances, those using the right " must so conduct themselves as
to discommode others as little as is reasonably practicable, and
remove the impediment within a reasonable time, having re-
gard to the circumstances of the case; and when they have
done this the law holds them harmless." ; Under a charter
1 Grand Rapids Elec. L. Co. v. Grand Purple v. Greenfield, 138 Mass. 1;
Rapids Gas Co., 33 Fed. Rep. 659. Reg. v. Justin, 24 Ont. Rep. 327; Swift
2 Fritz v. Hobson, L. R. 14 Ch. Div. v. Topeka, 43 Kan. 671.
542, annotated in 19 Am. L. Reg. 8 McCarthy v. Chicago, 53 III 38;
(N. S.) 615; St. Vincent's Orphan Asy- Wood v. Mears, 12 Ind. 515.
lum v. Troy, 76 N. Y. 108, 32 Am. Rep. 4 Com. v. Passmore, 1 Serg. & R 217.
286. A city may permit the use of 'Graves v. Shattuc, 35 N. H. 257;
bicycles on the sidewalks, provided State v. Pratt, 52 Minn. 131.
they do not become a nuisance. See 6 Matthews v. Kelsey, 58 Me. 56.
generally, Twilley v. Perkins, 77 Md. 7 Davis v. Winslow, 51 Me. 264;
252; Tuller v. Redding, 16 Misc. Rep. Franklin Wharf Co. v. Portland, 67
634; Mercer v. Corbin, 117 Ind. 450; Me. 46; State v. Pratt, 52 Minn. 131.
§ 103.] PARTICULAR POWERS. 99
giving the common council power to control and regulate the
construction of buildings and to regulate the manner of using
streets and pavements, it may require the owner or contractor
for a building to erect a covered passage-way over the sidewalk
in front of a building in process of construction as soon as the
first story is completed.1 Neither the acquiescence of a city
in an obstruction or private use of a street by a citizen, nor
laches in resorting to legal remedies, nor the statute of limita-
tions, nor equitable estoppel, nor prescription, can defeat the
right to maintain a suit in equity to remove the obstructions.1
§ 103. Poicer to improve streets. — The legislative power may
control and improve the streets when deemed necessary. This
power when duly exercised by ordinance will override any
license previously given by which the control of the street has
been surrendered to any individual or corporation. The right
of a city to improve its streets by regrading or otherwise is so
essential to its growth and prosperity that the common council .
of a city can no more deprive itself of that right than it can of
its power to legislate for the health, safety and morals of the
community. It is a legislative power which cannot be con-
tracted away.* An ordinance authorizing a railroad company
to erect new bridges of a certain construction, provided it shall
1 Smith v. Milwaukee Builders' Ex- abated, and to require either party
change, 91 Wis. 360, 30 L. R A. 504. to pay the whole or any portion of
2 Webb v. Demopolis. 95 Ala. 116, the expense; and that it was the
21 L. R A. 63; Elliott, Roads and settled policy of the state to abolish
Streets, p. 667 et seq. As to adverse grade crossings as rapidly as it could
possession of a highway, see Meyer reasonably be done, and that all gen-
v. Graham, 33 Neb. 566, 18 L. R A. eral laws and police regulations af-
146, note; Teass v. St Albans, 38 W. fecting railroad corporations were
Va. 1, 19 L. R A. 803, note. binding upon them without their as-
*In re Opening First Street, 66 sent. In affirming this decision the
Mich. 42; Bush v. Portland, 19 Oreg. supreme court in N. Y. & N. E. Ry.
45, 20 Am. St. Rep. 789; Northern Co. v. Bristol, 151 TJ. & 556, said:
Trans. Co. v. Chicago, 99 U. S. 635; "That the governmental power of
Wabash Ry. Co. v. Defiance, 167 U. S. health protection cannot be con-
88. The legislature of Connecticut tracted away, nor can the exercise
passed an act abolishing grade cross- of rights granted, nor the use of
ings as a menace to public safety, property be withdrawn from the im-
The supreme court of Connecticut plied liability to governmental regu-
held that as grade crossings are in lation in particulars essential to the
the nature of nuisances, the legisla. preservation of the community from
ture had a right to cause them to be injury." See, also, Wabash Ry. Co.
100 POWERS OF PUBLIC CORPORATIONS. [§§ 104, 105.
build sufficient approaches and grade to the bridges and keep
them in repair, constitutes a mere license, and not a contract
that the bridges or approaches shall remain any particular
length of time or that the city will not make new require-
ments.1 The power to grade is a continuing power.2
§ 104. Gas and water pipes. — A city may use the streets for
the purpose of laying down gas pipes and water mains.3 When
the supplying of gas and water is let to a contractor, the city
may authorize him to tear up the streets in such a manner as
is necessary in order to lay pipes and mains. The right to au-
thorize the use of the public streets for such purposes, how-
ever, must be directly conferred upon the municipality.4
§105. Projecting doors, windows and porches. — Strictly a
person has no right to project his buildings over the line of
the street. But a city may be authorized to enact an ordi-
nance which will permit the owners of lots abutting on a street
'to extend bay-windows and porticos a certain distance over the
line. In such a case the adjoining property owner who suffers
some inconvenience thereby cannot recover damages.5 So it
v. Defiance, 167 U. S. 88; Davis v. in municipal bodies is something
New York, 14 N. Y. 506; Milhau v. which cannot be bartered away in
Sharp, 27 N. Y. 611, 84 Am. Dec. 314; such a manner as to disable them
Coleman v. Second Ave. Ry. Co., 38 from the performance of their pub-
N. Y. 201; Detroit v. Ft. Wayne & lie functions."
D. L R. Co., 95 Mich. 456, 20 L. R. A. 1 Wabash Ry. Co. v. Defiance, 167
79; C., B. & Q. R. Co. v. Quincy, 139 U. S. 88. As to liability for the cost
111. 355; Roanoke Gas Co. v. Roanoke, of changing the grade at a railroad
88 Va. 810. In the Wabash Railway crossing, see Kelley v. Minneapolis,
case the court said: "While munici- 57 Minn. 294, 26 L. R. A. 92.
palities, when authorized so to do, 2 Goesler v. Georgetown, 6 Wheat,
doubtless have the power to make (U. S.) 593.
certain contracts with respect to the 3 Norwich Gas Co. v. Norwich City
use of their streets, which are obli- Gas Co., 25 Conn. 19; Nelson v. La
gatory upon them (N. O. Gas L. Co. Porte, 33 Ind. 258; Milhau v. Sharp,
v. La. L. & H. Co., 115 U. S. 650; N. O. 27 N. Y. 611, 15 Barb. 193; New Or-
W. W. Co. v. Rivers, 115 U. S. 674; leans v. Clark, 95 U. S. 644
City R. Co. v. Citizens' St. Ry. Co., 4 State v. Cincinnati Gas Co., 18
166 U. S. 557; Indianapolis v. Ind. Ohio St. 262; Quincy v. Bull, 106 III
Gas L. Co., 66 Ind. 396; Indiana v. 337.
Consumers' Gas Trust Co., 140 Ind. 5 Livingston v. Wolf, 136 Pa. St.
107, 27 L. R. A. 514), the general rule 519, 20 Am. St. Rep. 937; Garrett v.
to be extracted from the authorities Janes, 65 Md. 260. See Salisbury v.
is that the legislative power vested Andrew, 128 Mass. 336.
§ 106.] PARTICULAR POWERS. 101
may authorize the construction of doors and windows in such
manner as to open out upon the street, and of cellars under
the sidewalk, with grating and trap-doors opening into the
street.1 Under authority to make " salutary and needful by-
laws " and to regulate " the erection and maintenance of balus-
trades or other projections upon the roof or sides of buildings,"
a corporation cannot prohibit the maintenance of door-steps in
the highway which were placed there under the authority of
a statute.2
§ 106. Railroads in streets. — The legislature may, unless re-
stricted by the constitution, authorize the use of the public
streets by a railroad, and may delegate this power to a munici-
pal corporation.3 "The power of municipalities to author-
ize railroads to use their streets may be derived either from
express grant or by necessary implication. It is a question of
some doubt whether the general authority over the streets
which is usually given to them empowers them to grant to
street railway companies the right to use their streets; but the
better rule seems to be that it does.4 It is believed, however,
that the ordinary powers of municipal corporations to regu-
late and improve their streets and to prevent their obstruction
are not in themselves sufficient to enable municipalities to
grant the right to use their streets to ordinary commercial
railroads,5 although it has been held that a city may grant such
1 Irvine v. Wood, 51 N. Y. 224, 10 ton, 104 Mass. 75, 6 Am. Rep. 194
Am. Rep. 603; O'Linda v. Lathrop, (sign): Bohen v. Waseca, 32 Minn.
21 Pick. 292. 176, 50 Am. Rep. 564 (awning).
2 Gushing v. Boston, 128 Mass. 330, 3Kennelly v. Jersey City (a trolley
35 Am. St. Rep. 383. As to overhang- system), 57 N. J. L. 293, 26 L. R A.
ing obstructions and poles in streets 281 ; Koch v. N. Ave. Car Co., 75 Md.
in general see Hawkins v. Sanders, 222, 15 L. R A. 377; Hudson R T. Co.
45 Mich. 491 (awning); Beecher v. v. Waterveldt Tp., 135 N. Y. 393, 17
People, 38 Mich. 289, 31 Am. Rep. 316 L. R. A. 674; Trustees v. Milwaukee,
(roof); Reimer's Appeal, 100 Pa. St etc. Co., 77 Wis. 158; Hine v. Keo-
182, 45 Am. Rep. 373 (bay-window); kuk, etc..R Co., 42 Iowa, 636.
City of Allegheny v. Zimmerman, 95 *Atchison St. R Co. v. Mo. Pac,
Pa. St. 287, 40 Am. Rep. 649 (liberty R. R Co., 31 Kan. 660; Detroit City
pole); Wellington v.Gregson, 31 Kan. R Co. v. Detroit 64 Fed. Rep. 628;
99, 47 Am. Rep. 482 (post); Day v. State v. Carrigan, etc, R Co., 85 Mo.
Milford. 5 Allen (Mass.), 98 (awning); 263.
Salisbury v. Herchenroder, 106 Mass. 5Ruttles v. Covington, 10 Ky. L.
458,8 Am. Rep. 354; French v. Bruns- Rep. 766, 10 a W. Rep. 644; Newell
wick, 21 Me, 29 (rope); Jones v. Bos- v. Minneapolis, etc. R Co., 35 Minu.
102 POWERS OF PUBLIC CORPORATIONS. [§ 107.
a right when it is given sole and exclusive control of its streets.1
It is clear that it cannot grant such a right when a railroad is
for the mere private use of an individual." 2
§ 107. Conditions imposed. — The municipality may attach
to a grant such conditions as it deems advisable in order that
the use of the streets for purposes of ordinary travel may not
be unnecessarily interfered with. Thus, it may regulate the
location of railway tracks and telegraph poles, and prescribe
rules and regulations for the protection of persons and ve-
hicles.3 Such a grant is taken subject to its burdens, which
include such as may be imposed in the future by the exercise
of governmental and police powers.4
A railway company does not lose its property in the rails by
laying them in a public street, and a rival corporation has no
right to use them without its consent.5 A city is sometimes
empowered to grant the right to use the streets for railway pur-
poses upon the condition that the consent of a certain portion
of the owners of abutting property be first obtained. Such a
provision is a limitation upon the power of the municipality to
grant the license.6 An agreement to pay a property owner for.
his consent is invalid.7
113; Stanley v. Davenport, 54 Iowa, 4City of Allegheney v. Millville,
463, 37 Am. Rep. 216; Daly v. Georgia, etc. Ry. Co., 159 Pa. St. 411, 28 Atl.
etc. R. Co., 80 Ga. 793, 12 Am. St. Rep. 202; Pittsburg, etc. Ry. Co. v.
Rep. 286. Chicago, 159 111. 369, 42 N. E. Rep.
1 Kistner v. Indianapolis, 100 Ind. 781; Textor v. B. & O. Ry. Co., 59
210. Md. 63, 43 Am. Rep. 340.
2 Elliott on Railroads, voL III, 8 Jersey City, etc. Ry. Co. v. Rail-
§ 1077; Glessner v. Anheuser-Busch road Co., 20 N. J. Eq. 61.
Ass'n, 100 Mo. 508; Heath v. Des 8 Roberts v. Easton, 19 Ohio St. 78;
Moines, etc. R. Co., 61 Iowa, 11; McCarthy v. Chicago, etc. R. R Co.,
Gustafson v. Hamm, 56 Minn. 334. 112 111. 611 ; Hunt v. Chicago, etc. Ify.
3Fath v. Tower Grove, etc. R. R. Co., 121 111. 638; Kennelly v. Jersey
Co., 105 Mo. 537, 13 L. R. A. 74; State City, 57 N. J. L. 293, 26 L. R. A. 281.
v. Trenton, 53 N. J. L. 132, 11 L. R. The permission must be to a legally
A. 410; New Orleans v. N. O. etc. incorporated company. If given to
Ry. Co., 40 La. Ann. 587, 4 So. Rep. one not legally in existence, it dees
512; Detroit v. Detroit City Ry. Co., not become effective upon incorpo-
87 Mich. 558; Electric Ry. Co. v. ration. Homestead St. Ry. Co. v.
Grand Rapids, 84 Mich. 257; Phila- Pittsburgh, etc. Ry. Co., 166 Pa. St.
delphia v. Ridge Ave. Ry. Co., 143 162, 27 L. R. A. 383.
Pa. St. 444. May require electric 7Doane v. Chicago City R. R. Co.,
cars to be in charge of conductors. 160 III 22, 85 L. R. A. 58&
State v. Sloan, 48 S. C. 21, 25 S. E.
Rep. 898.
§ 107.] PAKTICULAK POWERS. 103
In a recent well-considered case l the following propositions
of law were deduced from the cases: (1) If the right of a rail-
road to occupy the streets of a town or city be dependent solely
upon the action of such town or city, the latter may, in grant-
ing its consent, prescribe terms for the breach of which the
right granted may be forfeited. The power that creates a cor-
porate right may limit its enjoyment.2 (2) When the law of a
state grants permission to railroads to use the streets of towns
and cities, but requires the assent of the authorities of such
municipal corporation, if the town or city in giving such con-
sent annexes thereto conditions which may operate upon breach
thereof to forfeit the license granted, and if such terms are
embodied in a separate contract signed by the railroad com-
pany, it will be enforced by the courts.3
When by the law of a state a railroad company is granted
the privilege of constructing its road upon the streets of towns
or cities with the assent of the authorities of such towns or
cities, the local authorities may, in connection with the consent
given, prescribe terms requiring the railroad company to per-
form such work and do such things as may be necessary to pre-
serve the streets as highways for public use; the things thus
prescribed being within the powers granted to such municipal
corporation by its charter.4 But a city cannot impose a con-
dition to the effect that the privilege shall be forfeited unless
the road is completed within a specified time to a designated
point outside of the city, when the legislature has given the
railway company the right to use the streets of the city upon
obtaining the consent of the municipality.5
1 Galveston & W. R. Co. v. Galves- 5 in Galveston & W. R. Co. v. Gal-
ton (Tex.), 39 S. W. Rep. 96, 36 L. R. veston (Tex., 1897), 39 S.W. Rep. 96, 36
A. 33. The authorities upon munici- L. R. A. 33, the court said: "It is not
pal power to impose conditions when denied that the state might have
giving consent to a railway in its' granted to railroad companies the
streets are collected in the notes to right to occupy the streets and high-
this case. ways without any condition. There-
2 State v. Madison St Ry. Co., 72 fore the superior authority over this
Wis. 612, 1 L. R. A. 771. . subject rests with the state legisla-
3 Pacific Ry. Co. v. Leavenworth, 1 ture. The legislature did, in clear
Dill. C. C. 393; Indianoia v. G. W.,T. and unambiguous terms, grant to
& P. R Co., 56 Tex. 594 railroad companies the right to oc-
4 X. C. R. Co. v. Baltimore, 21 Md. cupy the streets of towns or cities
93; Indianapolis & C. R Co. v. Law- upon the condition that the consent
renceburg, 34 Ind. 304 of such city or town should be first
104: FOWEKS OF PUBLIC CORPORATIONS. [§§ 108-110.
§ 108. Telegraph and telephone poles. — Telegraph and tele-
phone poles cannot be erected in a street or highway without
authority, and the municipality has no authority to grant the
privilege unless it has been expressly authorized so to do by
the legislature.1
§ 109. Additional servitudes — Compensation to abutting
owners. — When a burden is imposed upon a street in addition
to that for which it was dedicated, the abutting owners who
are injured thereby are entitled to compensation. Many uses
are now considered proper which in former times would have
been treated as foreign to the purposes of a street or highway.2
It has often been held that when the fee of the highway is in
the public, or iu the municipality in trust for the public, the
legislature may authorize the use of a street for railway pur-
poses without compensation to the owners of abutting prop-
erty; but that when the fee is in the abutter and the public lias
only an easement, the abutter is entitled to compensation when
an additional servitude is imposed upon the street.3 But the
tendency is to consider the location of the fee as immaterial,
and to award damages to the owners of abutting property
whenever an additional burden is imposed upon the street or
highway.4
§110. Railways as additional burdens. — The construction
of an ordinary steam railway along a street or highway is, ac-
cording to the prevailing rule, such a change of use as will en-
title the owner of abutting property to compensation.6 But
obtained. When the city of Galves- owner in a highway is " property "
ton gave its consent for the railroad within the meaning of a constitu-
company to construct its road over tional provision that property can-
the streets of the city, the condition not be taken without compensation,
precedent prescribed by the legisla- Pearsall v. Eaton Co. Supervisors, 74
ture was fulfilled, and the statutory Mich. 558, 4 L. R. A. 193; Gargan v.
right attached in favor of the rail- Louisville, etc. R. Co., 89 Ky. 212, 6
road company." L. R. A. 340.
lCom. v. Boston, 97 Mass. 555; 3 Dillon, Mun. Corp., § 702; Indian-
Irwin v. Great Southern Tel. Co., 37 apolis, etc. Ry. Co. v. Hartley, 67 111.
La. Ann. 63; Julia Bldg. Ass'n v. Bell 439, 16 Am. Rep. 624
Tel. Co., 88 Mo. 258. * Theobald v. Louisville, etc. Ry.
2 See the language of Mr. Justice Co., 66 Miss. 279, 4 L. R. A. 735; Dillon,
Mitchell in Cater v. N. W. Tel. Exch. Mun. Corp. (6th ed.), § 704 a.
Co., 60 Minn. 539, 63 N. W. Rep. 111. 8 Elliott, Roads and Streets, p. 160,
The interest of an adjoining land- and cases cited.
§ no.]
PARTICULAR POWERS.
105
more difficult questions arise when we come to consider ordi-
nary street railways. The decisions are not in entire accord,
but when the fee of the street is in the public, it may be taken
as the law that such a railway is not an additional servitude.1
According to the great weight of authority, electric street rail-
ways are governed by the same principles as ordinary street
railwavs.2 In reference to the poles used by an electric rail-
way the supreme court of Michigan said:8 They "are a neces-
sary part of the system. "Where they do not interfere with
the owner's access to and the use of his land, we see no rea-
1 Fobes v. Rome, W. & O. R Co.,
121 X. Y. 505, 8 L. R A. 453, anno-
tated; People v. Kerr, 27 N. Y. 188;
Storey v. N. Y. Elev. Ry. Co., 90 N. Y.
122; Lehr v. Metr. Elev. Ry. Co., 104
N. Y. 268: Eichels v. Evansville St.
Ry. Co., 78 Ind. 261. See Cooley, Const.
Lino. 545.
2 Howe v. West End St. Ry. Co.,
167 Mass. 46; Taggart v. Newport St
Ry. Co., 16 R I. 668, 7 L. R A. 205;
Lockhart v. Railway Co., 139 Pa. St
419; Halsey v. Rapid Tr. St. Ry. Co.,
47 N. J. Eq. 380, 20 AtL Rep. 859;
State v. Trenton R. Co., 58 N. J. L.
666, 33 L. R. A. 129; Detroit City Ry.
Co. v. Mills, 85 Mich. 634; Koch v.
North Ave. Ry. Co., 75 Md. 222, 15
L. R. A. 377. In Kennelly v. Jersey
City, 57 N. J. L. 293, 26 L. R. A. 281,
the court said: "A fundamental
question lying at the basis of mat-
ters which we must consider in pass-
ing upon the objections of the prose-
cutor is whether the trolley system
of propelling street cars, involving
as it does the erection of poles and
wire on land the fee of which is pri-
vate property, is within the public
easement over urban highways. In
our judgment it is. That easement
includes the right to use the streets
for purposes of passage by the pub-
lic, and therefore to employ any
means directly conducive to that
end which do not substantially in-
terfere with the customary use of
the street by any portion of the pub-
lic, or with the recognized rights
of abutting owners. The cars pro-
pelled by the trolley system do not
materially differ either in appear-
ance or use from the ordinary horse
cars. They are permitted to go
along the streets in such manner
only as is compatible with custom-
ary modes of travel by others of the
public (Newark Pass. R Co. v. Block,
55 N. J. L. 605), and the tracks, poles
and wires cause no greater detri-
ment to adjoining property than do
the tracks, sewers, pipes, posts and
trees which indisputably the public
may authorize to be placed in the
streets. These considerations, we
think, lead to the conclusion reached
by the learned vice-chancellors of
this state in Halsey v. Rapid Street
R Co., 47 N. J. Eq. 380, 391, and Pat-
erson Horse R. Co. v. Grundy, 51 N.
J. Eq. 213, 228, and by the learned
chancellor in West Jersey R Co. v.
Camden & W. R Co., 52. N. J. 31, 29
AtL Rep. 423, that the adoption of
the trolley system for the convey-
ance of passengers through the
streets of a city does not necessitate
the invasion of any private rights."
See Placke v. Union Depot Co. (Mo.,
.1897), 41 S. W. Rep. 915. An electric
street railway upon a highway is
an additional servitude. Conastota
Knife Co. v. Newington Tramway
Co., 69 Conn. 146, 36 AtL Rep. 1107.
3 Detroit City Ry. Co. v. Mills, 85
Mich. 634.
106 POWEKS OF PUBLIC COKPOKATION8. [§ 111.
son why they should be held to constitute an additional servi-
tude. Certainly they constitute no injury to his reversionary
interest. To constitute an additional servitude, therefore, they
must be an injury to the present use and enjoyment of the
land. But they do not obstruct the light or his vision as do
the structures of an elevated railroad. Neither they nor the
cars they assist in moving cause the noise, steam, smoke and
dirt which are produced by steam cars. They do not interfere
with his going and coming at his pleasure when placed as they
can and must be so as to give him free access." A surface
street railway operated by steam motor engines, but used ex-
clusively for carrying passengers, and stopping upon the street
crossings after the manner of an ordinary street railway, is
not an additional burden upon the street.1 The same conclu-
sion has been reached by the courts of Illinois with reference
to an elevated railway.2
§ 111. Telegraph and telepJione poles as servitudes. — The au-
thorities are not in harmony on the question whether telegraph
and telephone poles constitute an additional burden upon a
public street or highway. In some cases the location of the
fee is made the test.3 In Missouri it was held that an injunc-
tion would not issue to restrain the erection of a proper tele-
graph pole in front of a man's premises, when the fee was in
the abutter.4 The Missouri decisions were followed in Louisi-
ana, and the same rule prevails in New Jersey, Michigan and
Massachusetts.5 In Minnesota it was held by a divided court
that telephone poles constructed along the side of a country
highway, the fee of which was in the abutter, do not constitute
an additional servitude upon the highway.6 But the weight of
»
1 Newell v. Railway Co., 35 Minn. < Gay v. Mut. U. T. Co., 12 Mo. App.
113, 59 Am. Rep. 303. As to water- 485 (1882); Forsyth v. B. & O. Tel.
pipes in a street, see Kincaid v. In- Co., 12 Mo. App. 494; Julia Building
dianapolis Nat. Gas Co., 124 Ind. 577, Ass'n v. Bell Tel. Co., 88 Mo. 258.
8 L. R. A. 602; Sterling's Appeal, 111 » Erwin v. G. S. Tel. Co., 37 La. Ann.
Pa. St. 35; Note to Western R. Co. 63; Halsey v. Rapid Tr. Ry. Co., 47
v. Ala. etc. R. Co., 17 L. R. A. 474, 96 N. J. Eq. 380, 20 Atl. Rep. 859; Peo-
Ala. 273. pie v. Eaton, 100 Mich. 208; Pierce v.
2 Doane v. Lake Street Elev. R. Co., Drew, 136 Mass. 75; McCormick v.
165 111. 510, 46 N. E. Rep. 510, 36 L. District of Columbia, 4 Mackey, 396,
R A. 97. 54 Am. Rep. 284, and note.
a See Keasby, Electric Wires, p. 73. 6 Cater v. N. W. Tel. Exch. Co., 60
PARTICCLAB POWERS.
107
authority sustains the view that telegraph and telephone lines
constitute an additional servitude upon the streets of a city.1
Bat there is no question as to the right of the abutting owner
to relief for any substantial obstruction to his right of access
or interference with his enjoyment of the street.
n. TAXATION AND SPECIAL ASSESSMENTS
§ 112. Power of taxation. — The power of taxation is an at-
tribute of sovereignty. In contemplation of law it is always
imposed by the state, although it may act through the agency
of a public corporation.2 Almost all municipal corporations
have power to levy taxes for certain purposes. It is ordinarily
conferred in express terms,3 but like other powers it may be
implied. Thus, when a municipal corporation is expressly em-
powered to borrow money, it has implied authority to levy a
tax to raise the money to meet the obligation.4 But the mere
fact of incorporation does not carry with it the power of taxa-
tion.5 The power can be legally exercised for public purposes
Minn. 539, 63 Nl W. Rep. 111. Chief
Justice Start, dissenting, said : "The
adjudged cases upon this subject are
conflicting, but the later cases and
the weight of authority sustain the
doctrine that a telegraph or tele-
phone line along the highway, where
the fee thereof is in the abutting
owner, is foreign to its use and an
additional servitude, for which such
owner is entitled to compensation;
and that the legislature cannot au-
thorize the imposition of such servi-
tude without also providing for such
compensation."
i Eels v. American T. & T. Co., 143
N. Y. 133, 38 N. E. Rep. 202; W. U.
TeL Co. v. Williams, 86 Va. 696, 8 L.
R. A. 420; Chesapeake P. TeL Co. v.
Mackenzie, 74 Md. 36, 21 AtL Rep.
690, 28 Am. St. Rep. 219, and note;
Stowers v. Postal Tel. & C. Co., 68
Miss. 559, 12 L. R. A. 864: B. & W. R.
Co. v. Hartley, 67 111. 439; Willis v.
Erie L. & T. Co., 37 Minn. 347: Board
of Trade T. Co. v. Barnet, 107 EL 507;
American T. & T. Co. v. Pearce, 71
Md. 535, 7 L. R. A. 200. Congress
may confer the right upon a tele-
graph company to construct its lines
over all post roads, and under this
power "a telegraph company can
obtain a right of way for its poles
and wires through and along the
streets of a city without the consent
of the municipality." Southern Bell
TeL Co. v. City of Richmond, 78 Fed.
Rep. 858, and cases cited therein.
« Whiting v. West Point, 88 Va.
905, 15 K R. A. 880, note.
3 See Quid v. Richmond, 23 Gratt
464, 14 Am, Rep. 139.
4 United States v. New Orleans, 98
U. S. 381. And see Lowell v. Boston,
111 Mass. 454.
5 Cooley Taxation (2d ed.), 464, and
cases cited. In Mi not v. West Rox-
bury, 112 Mass. 1, the court said:
" It is well settled by our own decis-
ions that towns derive all their au-
thority to tax their inhabitants from
the statutes; if the authority to tax
for a particular purpose is not found
there, either in express terms or by
108 POWERS OF PUBLIC CORPORATIONS. [§ 113.
only.1 Being a governmental power it cannot be granted in
perpetuity, but may be revoked at any time.2 A municipality
cannot, even for a consideration,3 exempt certain property from
taxation without special legislative authority.4
§ 113. Nature of special assessments. — The special form of
taxation known as local assessments has some features which
distinguish it from general taxation.6 Although much criti-
cised and sometimes disapproved of, it is now settled that the
legislature may authorize municipal corporations to levy special
assessments upon property so situated as to be specially bene-
fited by certain public improvements. In order, however, that
a municipality may exercise this power it must be able to show
legislative authority therefor. Ordinarily the statute provides
in detail the manner in which the power is to be exercised.
But when the power is conferred in general words it confers
all the authority essential to the execution of the power by the
ordinary and appropriate methods.6 Such assessments are a
peculiar species of taxation, " standing apart from the general
burden imposed for state and municipal purposes, and governed
by principles which do not apply universally. The general
levy of taxes is understood to exact contribution in return for
the general benefits of government; and it promises nothing
to the persons taxed beyond what may be anticipated from an
administration of the laws for individual protection and the
general public good. Special assessments, on the other hand,
necessary implication, it does not 180. But see Grant v. Davenport, 36
exist." Coolidge v. Brookline, 114 Iowa, 896.
Mass. 592. And see Drummer v. Cox, 4 Whiting v. West Point, 88 Va.
165 111. 648, 46 N. E. Rep. 716. 905, 15 L. R. A. 860, and note; Alt-
1 Lowell v. Boston, 111 Mass. 454; gelt v. San Antonio, 81 Tex. 436, lo
Lund v. Chippewa Co., 93 Wis. 640, L. R. A. 383; State v. Hannibal &
34 L. R A. 131; Wisconsin Keeley St. J. R. Co., 75 Mo. 209; New Or-
Inst Co. v. Milwaukee Co., 95 Wis. leans v. New Orleans, etc. Co., 35 La.
153, 70 N. W. Rep. 68, 36 L. R. A. 55; Ann. 548.
People v. Mayor, 4 N. Y. 421 ; Doggert 5 That an assessment for benefits
v. Colgan, 92 Cal. 53, 14 L. R. A. 474, is in the nature of a tax is no longer
and cases in note; Fallbrook Irriga- questioned. Sargent v. Tuttle, 67
tion District v. Bradley, 164 U. S. Conn. 162, 34 Atl. Rep. 1028, 32 L. R A.
112. 822. But power to tax will not au-
2 Williamson v. New Jersey, 130 thorize a local assessment. Macon v.
U. S. 190; New Orleans v. Water- Patty, 57 Miss. 378.
works, 142 U. S. 79. 6 Raleigh v. Pease, 110 N. C. 82, 17
s Austin v. Austin Gas Co., 69 Tex. L. R, A. 331.
§ 114.] PARTICULAR POWERS, 109
are made npon the assumption that a portion of the community
is to be specially and particularly benefited, in the enhance-
ment of the value of property peculiarly situated as regards a
contemplated expenditure of public funds ; and in addition to
the general levy they demand that special contribution in con-
sideration of the special benefit shall be made by the persons
receiving it. The justice of demanding the special contribu-
tion is supposed to be evident in the fact that the persons who
are to make it, while they are made to bear the cost of a pub-
lic work, are at the same time to suffer no pecuniary loss
thereby, their property being increased in value by the ex-
penditure to an amount at least equal to the sum they are re-
quired to pay. This is the idea that underlies all these levies." l
The levy of such an assessment must not be confounded with
the exercise of the power of eminent domain.2
§ 114. Their constitutionality. — The cases in which the con-
stitutionality of local assessments has been discussed turn largely
upon the construction of the language of the particular consti-
tution under consideration, and upon the method of apportion-
ment.3 The right to levy such assessments is as well established
as it is possible by judicial decisions to establish any legal prin-
ciple.4 They do not constitute a taking of property without
due process of law or without compensation to the owner.5
Due process of law does not require a judicial proceeding.
There must be an orderly proceeding by a tribunal provided by
law, but the determination of the proceeding, and the tribunal,
rests with the legislature. It is essential, however, that the
1 Cooley, Taxation, p. 606; Duluth a discussion of the justice and equity
v. Dibblee, 62 Minn. 18; Brooks v. of this system of taxation, see Mu-
Baltimore, 48 Md. 265. Mr. Bur- nicipality v. Dunn, 10 La. Ann. 57;
roughs (Taxation, p. 460) says: "An Elliott, Roads and Streets, g 370;
assessment for improvements is not Hare, Am. Const. Law, vol. I, p. 301.
considered as a burden, but as an 'State v. Reis, 38 Minn. 371; Stin-
equivalent or compensation in the son v. Smith, 8 Minn. 366.
enhanced value which the property 4 See many cases cited in a note to
derives from the improvement" Ivanhoe v. Enterprise, 35 L. R. A. 58,
2 Raleigh v. Pease, 110 N. C. 32; 29 Oreg. 245.
Lewis, Eminent Domain, § 4 Fora 5Hoytv. East Saginaw, 19 Mich,
history of the principle and a discus- 39; Pray v. North Liberties, 31 Pa.
sion of the difference between gen- St. 69; Bridgeport v. Railway Co., 36
eral taxation and local assessments, Conn. 255; Holton v. Milwaukee, 31
see Macon v. Patty, 57 Miss. 37a For Wis. 27.
110 POWERS OF PUBLIC CORPORATIONS. [§ 115.
owner shall at some stage of the proceeding have an oppor-
tunity to be heard. If such provision is made, and the owner
has the opportunity to be heard upon the question of what pro-
portion of the tax shall be assessed upon his land, there is not
a taking of the property without due process of law.1 ""When
the opportunity to be heard respecting the assessment is af-
forded the taxpayer in an action, there has been given him all
that the guaranty of due process of law requires and secures ;
and he has nothing to complain of in regard to such process." 2
The manner of giving notice of the proceedings may be pre-
scribed by the legislature and may be by publication.3 It is
not necessary that there should be a provision for appeal from
the decision of the determining body. As said by the supreme
court of Pennsylvania, such assessments " have always been re-
garded as a species of taxation, which within well-defined lim-
its is constitutional and proper, without provision for such
appeals from the action of those intrusted with the duty of
making and revising such assessments. The principle is too
firmly settled by a long line of cases to be now changed." 4
§ 115. Purposes for wliich local assessments may ~be
Benefits. — The purposes for which special assessments may be
made are numerous. There must exist the ordinary elements
of taxation, and in addition thereto the improvement upon
which the assessment is based must be productive of special
local benefit to the property upon which it is assessed.6 The
1 Duluth v. Dibblee, 62 Minn. ia 37 Minn. 343. As to sufficiency of
2 Reclamation Dist. v. Goloman, 65 notice, see Lawrence v. Webster, 167
Cal. 635, 4 Pac. Rep. 678; Paulson v. Mass. 513, 46 N. E. Rep. 123. As to
City of Portland, 149 U. S. 30; Mo necessity for notice, Landis v. Bor-
Millan v. Anderson, 95 U. S. 37; ough of Vineland (N. J.), 37 AtL Hep.
Spencer v. Merchant, 125 U. S. 345; 965.
Overing v. Foote, 65 N. Y. 262 ; Stew- < Oil City v. Oil City Boiler Works,
art v. Palmer, 74 N. Y. 183; People 152 Pa. St. 348; Harrisburg v. Segel-
v. Hager, 52 Cal. 171. As to right of baum, 151 Pa. St. 172; Michener v.
owner to interpose objections to reg- Philadelphia, 118 Pa. St 535; Ham-
ularity of proceedings after judg- mett v. Philadelphia, 65 Pa. St. 146.
ment of confirmation, see Kochers- 8In re Wash. Ave., 69 Pa. St. 352;
perger v. Markley, 166 111. 48, 46 N. E. Allen v. Drew, 44 Vt 174; Title
Rep. 742. Guarantee & T. Co. v. Chicago, 162
3 Paulson v. City of Portland, III 505. The general rule is that a
eugra; Lent v. Tillson, 140 U. S. 316; local assessment is constitutional
County of Hennepin v. Bartleson, only when it confers a special bene-
§
PAETICULAK POWEES.
Ill
local improvement must partake of a permanent nature, and
the benefit must flow from an actual improvement.1 Hence, a
local assessment should not be made for sprinkling streets,2 or for
the maintenance and repair of boulevards and pleasure ways.1
But such assessments are often made, and it is said that they
may be made for any purpose that tends to make a street more
suitable and convenient for the use of the public, such as grad-
ing,4 changing a grade,5 paving,6 altering or widening streets,7
or constructing sidewalks.8 Assessments to pay the cost of re-
paving a street are generally sustained.9 So the expense of
constructing drains in order to carry off stagnant water which
may become detrimental to health may be met by the levy of
special assessments.10 And " where any considerable tract of
land owned by different persons is in a condition precluding
cultivation by reason of excessive moisture, which drains would
relieve, it may well be said that the public has such an interest
in the improvement and the consequent advancement of the
general interests of the locality as will justify the levy of assess-
ments upon the owners for drainage purposes. Such a case
fit. The cases are collected in a note,
14 L. R, A. 756. The contrary doctrine
is held in Re Bonds of Madeira Irriga-
tion District, 92 Gal. 296, 14 L. R A.
755.
1 In re Bonds of Madeira Irr. Disk,
92 CaL 296, 14 L, R A. 755.
2 Chicago v. Blair, 149 m. 310, 24
L. R A. 412, and cases cited in note.
Contra, State v. Reis, 38 Minn. 371,
where the court said: "The only es-
sential elements of a ' local improve-
ment' are those which the term
implies, viz., that it shall benefit the
property on which the cost is as-
sessed in a manner local in its nature
and not enjoyed by property gener-
ally in the city. If it does this, —
rendering the property more attract-
ive and comfortable, and hence more
valuable for use, — then it is an im-
provement."
3 Crane v. West Chicago Park Com.,
153 III 348, 26 L. R A. 311. An as-
sessment may be made to pay the
expenses of sweeping a street. Rein-
ken v. Fuehring, 130 Ind. £32, 15 L. R
A. 624
4Wray v. Pittsburgh, 46 Pa. St.
365.
5 La Fayette v. Fowler, 34 Ind. 140.
6Schenley v. Com., 36 Pa. St 29;
Petition of Bunneister, 76 N. Y. 174.
In Dewey v. Des Moines (Iowa), 70
N. W. Rep. 605, it is held that a street-
paving improvement is a public im-
provement which will support a
special assessment upon abutting
owners regardless of benefits.
7 Jones v. Boston, 104 Mass. 461.
8 Flint v. Webb, 25 Minn. 93; Sloane
v. Beebe, 24 Kan. 343; White v. Peo-
ple, 94 HL 604.
9 Willard v. Presburg, 14 WalL 676;
Sheley v. Detroit, 45 Mich. 431; Gur-
nee v. Chicago, 40 m. 165; Matter of
Phillips, 60 N. Y. 16; In re Smith, 99
N. Y. 424. Contra, see Hammett v.
Philadelphia, 65 Pa. St. 146: Wistar
v. Philadelphia, 80 Pa. St. 505.
10 Reeves v. Wood Co., 8 Ohio St
333; People Y. Haines, 49 N. Y. 587.
112 POWERS OF PUBLIC CORPORATIONS. [§ 116.
would seem to stand upon the same solid ground with assess-
ments for levee purposes, which have for their object to protect
lands from falling into a condition of uselessness.1 But under the
rule of strict construction of powers to tax, authority to drain
lands for public health, and to lay assessments therefor, will not
support an assessment the main cost of which is for filling in
land."2 Under power to make and maintain highways and streets
by special assessments, a city has authority to levy such assess-
ments for the construction of sewers and culverts on the theory
that they are simply street improvements.3 So the cost of lay-
ing water pipes may be levied upon property benefited thereby.
" The benefits are local, as the use of the water must neces-
sarily be mostly restricted to the property on the lines both for
domestic purposes and the extinguishment of fires. The effect
of supplying the streets with water is to enhance the value of
dwelling-houses thereon." 4
§116. Method of apportionment. — The cost of a public im-
provement may be met in part by a general tax and in part by
special assessment levied upon the property particularly bene-
fited. In fixing the basis of apportionment between individ-
uals, there are two methods in common use:
1. An assessment made by assessors or commissioners ap-
pointed for the purpose under legislative authority, who are
to view the estates and levy the expense in proportion to the
benefits which in their opinion the estates will receive from the
improvements proposed.
2. An assessment by some definite standard fixed upon by
the legislature itself, and which is applied to estates by meas-
urements of length, quantity or value.8
The determination of the question whether an improvement
is general or local is a legislative question, and the action of a
city council pursuant to authority vested in it by the legisla-
1 French v. Kirkland, 1 Paige, 117; levees, see Williams v. Commack, 27
Eager v. Supervisors, 47 Cal. 222; Miss. 209.
Hager v. Reclamation Disk, 111 U. S. 3 Hungerford v. Hartford, 39 Conn.
70.1.; Fallbrook Irrigation District v. 279; Wright v. Boston, 9 Gush. 233;
Bradley, 164 U. S. 112. Grinnell v. Des Moines, 57 Iowa, 144.
2Cooley, Taxation, p. 618; Petition < Allentown v. Henry, 73 Pa. St.
of Van Buren 79 N. Y. 884. As to 404.
• Cooley, Taxation, 639.
§ 117.] PAETICTLAB POWERS. 113
tare is not subject to review by the courts. These questions
must necessarily be left to the judgment of men. Thus, where
the charter provided that it should be determined by a board
of public works, the court said: "Their judgment is final and
conclusive, and cannot be reviewed by the district court or any
other tribunal unless shown to be fraudulent in fact, or unless
it is made up upon a demonstrable mistake of fact." l "With
reference to a similar case the supreme court of Michigan said :
" These officers acted within the scope of their powers, and
the record contains no evidence of fraud, corrupt motive or fa-
voritism. The presumption is that in making the district and
the assessment the officers of the municipality acted in good faith,
and have correctly and faithfully exercised the discretion vested
in them. In such case, where mistake or abuse of discretion is
not manifest or demonstrable, the determination of municipal
officers in whom such discretion is vested is conclusive and not
reviewable by the courts." 2
§ 117. By ~benefits. — The right to assess for benefits, as we
have seen, is no longer open to question. When the assessment
is apportioned according to the benefits accruing to the prop-
erty, the legislature or the municipality, when duly authorized,
may determine over what territory the benefits are diffused,
or it may provide for the appointment of assessors or commis-
sioners with authority to make the assessment upon such lands
as in their judgment are specially benefited. As stated in the
preceding section, the determination of questions of fact in
these proceedings, when free from fraud or manifest mistake,
is not open to review by the courts.3 It must not be under-
stood, however, that any assessment or apportionment which
the legislature or commissioners may make will be permitted
to stand by the court. The proceedings must comply strictly
1 State v. Board of Public "Works, 2 Powers v. City of Grand Rapids,
27 Minn. 442; State v. District Court, 98 Mich. 393, 57 N. W. Rep. 250. As
29 Minn. 62; Spencer v. Merchant, to the effect of fraud in the deter-
100 N. Y. 585; Michner v. Philadel- mination to pave a street, see Dewey
phia, 118 Pa. St. 535. The findings v. Des Moines (Iowa), 70 N. W. Rep.
of commissioners will not be dis- 605.
turbed by courts save for manifest 3 Dewey v. Des Moines (Iowa), 70
error. In re Amberson Ave. (Pa.), N. W. Rep. 605, and cases cited.
36 AtL Rep. 354 (1897).
8
POWERS OF PUBLIC CORPORATIONS. [§ 118.
with the requirements of the statute. The improvement must
be of a public nature, and the benefit accruing must result es-
pecially to the property upon which the assessment is made.
A work of general benefit cannot be treated as a special ben-
efit and the costs assessed upon certain property.1
§ 118. The frontage rule. — The apportionment of benefits
according to what is known as the frontage rule is very com-
mon. Under it the line of frontage is taken as the most prac-
tical test of probable benefits. When applied to city property
it is probably as equitable as any other system that can be
adopted. As said by a recent writer: "The system which
leads to the least mischievous and unjust consequences is that
which takes into account the entire line of the way improved
and apportions the expense according to the frontage; for it
takes ioto consideration the benefit to each property owner that
accrues from the improvement of the entire line of the way,
and does not impose upon the lot-owner an unjust portion of
the burden." 2 The right to apportion assessments according to
this rule is no longer open to controversy.3 It seems, however,
that it is not applicable to farm lands or suburban property.
1 Baltimore v. Hughes, 1 Gill & J. tion and frontage in Newman v. Em-
265. See Thomas v. Gaines, 35 Mich, poria, 41 Kan. 583; Ludlow v. Cin-
155; Seely v. Pittsburgh, 82 Pa. St. cinnati S. R. Co., 78 Ky. 357; State
360, 22 Am. Rep. 760; In re Wash. v. Gardner, 34 N. J. L. 327; Corry v.
A ve., 69 Pa. St. 352; Title Guarantee Holtz, 29 Ohio St. 320; M'Gee v.
& T. Co. v. Chicago, 162 111. 505. See Com., 46 Pa. St. 358; Beaumont
the statement of the rule and its ex- v. Wilkesbarre, 143 Pa. St. 198; Davis
ception in Raleigh v. Pease, 110 N. C. v. Lynchburg, 84 Va. 861; State v.
32. Reis, 38 Minn. 871; Stato v. Norton,
2 Elliott, Roads and Streets, §396. 63 Minn. 497; Raleigh v. Peace, 110
»Sheley v. Detroit, 45 Mich. 431; N. C. 32, 17 L. R. A. 330, and note,
Palmyra v. Morton, 25 Mo. 594; Ruth- where these and many other crises
erford v. Hamilton, 97 Mo. 543; Farrar are cited. The contrary was held in
v. St. Louis, 80 Mo. 379; Galesburg v. McBean v. Chandler, 9 Heisk. (Tenn.)
Searles, 114 111. 217; White v. People, 349; Peay v. Little Rock, 32 Ark. 31,
94 111. 604; Craw v. Tolono, 96 111. and Chicago v. Larned, 34 111. 253.
255, 35 Am. Rep. 143; Springfield v. The latter case was overruled by the
Green, 120 111. 269; Springfield v. decisions cited in the preceding
Sale, 127 III 359; O'Reilley v. King- note. Railroad property may be
ston, 114 N. Y. 439; Bacon v. Savan- taxed on the basis of frontage for
nah, 86 Ga. 301; Whiting v. Town- sewer and water connection im-
send, 57 Cal. 515; Palmer v. Stumph, provements. Palmer v. Danville, 166
29 Ind. 329; Parker v. Challis, 9 Kan. 111. 42, 46 N. E. Rep. 629.
155. Modified by combining valua-
PARTICULAR POWERS.
115
With reference to such an assessment the supreme court of
Pennsylvania says that it is "unequal, unjust and unconstitu-
tional." l But the entire cost of the improvement in front of
a lot cannot be levied upon that lot. Such a proceeding vio-
lates every principle of equality and apportionment.2
§ 119. Property exempt from taxation. — Although local as-
sessments are made by virtue of the taxing power they are not
taxes within the meaning of the word as used in statutes ex-
empting certain property from taxation.' Express words are
necessary to exempt from general taxation or special assess-
ment.4 In the following cases the language used was held not
to include assessments for local improvements: Taxation of
every kind,8 taxes of every kind,6 all taxation,7 all taxes, either
by state, parish or city,8 all public taxes,9 rates and assess-
ments,10 all and every county road, city and school tax,11 exempt
from taxation of every description,12 taxes, charges and imposi-
1 Philadelphia v. Rule, 93 Pa. St.
15; Seely v. Pittsburgh, 82 Pa. St.
360, 22 Am. Rep. 760; McKeesport v.
Soles, 178 Pa. St. 363, 35 AtL Rep. 927.
In Garham v. Conger, 85 Ky. 583,
the system of local assessments isheld
not to apply to rural lands when it
is sought to levy the cost of expenses
of street improvements upon them.
Under certain conditions, however,
farm lands may be subjected to an
assessment. Thus, although the lay-
ing of water supply pipes in a street
on which a farm abuts may not ben-
efit the farm in its present condition,
it is subject to assessment for ben-
efits if the value is thereby increased
for any use for which the land is
adapted. Clark v. Chicago, 166 III
84 46 N. E. Rep. 730, distinguishing
Hutt v. Chicago, 132 111. 352, and Ed-
wards v. Chicago, 140 111., 440.
2Moutz v. Detroit, 18 Mich. 495;
Morrison v. St. Paul, 5 Minn. 108;
State v. Jersey City, 37 N. J. L.
128; Davis v. Litchfield, 145 III 313,
21 L. R. A. 563, note. Contra, Weeks
v. Milwaukee, 10 Wis. 258; "Warren
v. Henley, 31 Iowa, 31.
'Ford v. Delta, etc. Co., 164 U. S. 662;
Farwell v. Des Moiues (Iowa, 1897),
35 L. R A. 63; In re Mayor of New
York, 11 John. 77; Baltimore v. Ceme-
tery Co., 7 Md. 517; Oliver Cemetery
Co. v. Philadelphia, 93 Pa. St. 129;
Bridgeport v. Railway Co., 36 Conn.
255; Chicago v. Baptist Theo. Union,
115 111. 245; Atlanta v. -First Presb.
Church, 86 Ga, 730, 12 L. R. A. 852,
and cases in note.
4 Lima v. Cemetery Ass'n, 42 Ohio
St 128.
8Sheehan v. Good Samaritan Hos-
pital, 50 Mo. 155, 11 Am. Rep. 112.
6 III Cent Ry. Co. v. Decatur, 126
111. 92, 1 L. R A. 6ia
7 Winona & St. P. Ry. Co. v. Water-
town, 1 S. Dak. 46, 44 N. W. Rep. 1072.
8 La Fayette v. Male Orphans' Asy-
lum, 4 La. Ann. 1.
9 Buffalo City Cemetery v. Buffalo,
46 N. Y. 506.
'10Northem Liberties v. St John's
Church, 13 Pa. St, 104.
» Illinois & M. Canal v. Chicago, 12
HL 403.
12 Patterson v. Society, 24 N. J. L,
385.
116 POWERS OF PUBLIC CORPORATIONS, [§ 120.
tions,1 charges and impositions,2 any tax or public imposition
whatever,8 a tax on franchises in lieu of all other taxes,4 ex-
empt from taxation,5 exempt from all taxation by state or local
laws for any purpose whatever.8 Land owned by a railroad
company and held in anticipation of being needed for railroad
purposes at an indefinite future time is not exempt from as-
sessments for street improvements under a statute providing
for the payment of a percentage of the gross earnings in lieu
of other taxes and assessments.7 An assessment is not inval-
idated by exempting certain property belonging to the state.8
§120. Collection of assessments. — Special assessments must
be collected in the way provided in the statute. It is generally
provided that the contractor who does the work shall look to
the assessment on the lot for his compensation. It is sometimes
provided that the contractor shall make the collection; and
in such case there is no liability on the part of the city. When,
however, it is provided that the city shall make the collection
it acts as a representative of the contractor, and is not liable
to him unless its officers fail in their duty and thus prejudice
the rights of the contractor.9 Thus, when it is provided that
the contractor shall perform the work and furnish the materials
required under his contract according to the plans and specifica-
tions, and be entitled to his pay when the fund for that purpose
shall be assessed, levied and collected by the regular agencies
of the city, he has a right to rely upon the implied obligation
of the city to use with due diligence its own agencies in pro-
curing the means to satisfy his claims. If the city neglects to
perform its duty he may recover such damages from it as he
1 State v. Newark, 27 N. J. L. 185. note to Atlanta v. First Presb.
2 Baltimore v. Proprietors, 7 Md. Church, 86 Ga. 730, 12 L. R. A. 83B.
517. 7In re Assessment for Grading
3 Bridgeport v. N. Y. & N. H. Ry. Prior Ave. (Minn.), 71 N. W. Rep. 27.
Co., 36 Conn. 255, 4 Am. Rep. 63. 8 Doyle v. Austin, 47 Cal. 353; Wor-
4 Boston Seamen's Friend Society cester Co. v. Worcester, 116 Mass.
v. Boston, 116 Mass. 181, 19 Am. Rep. 183. The cases are reviewed in At-
153; Roosevelt Hospital v. New lanta v. First Presb. Church, supra.
York, 84 N. Y. 108. 9 Chambers v. Satterlee, 40 Cal. 497 ;
8 Zable v. Louisville Baptist Or- Lovell v. St. Paul, 10 Minn. 290. If
phans' Home, 92 Ky. 89, 13 L. R, A. the city agrees to collect the assess-
668. ment and fails to do so it is liable to
6.The cases with reference to the contractor. Morgan v. Dubuque,
church property are collected in 28 Iowa, 575.
§ 121.] PARTICULAR POWERS. 117
suffers by reason of such neglect.1 So a city is liable to a con-
tractor for damages occasioned to him by reason of its mistake
in the construction of the law, as where the ordinance under
which the assessment was made was held void, and some of
the claims for benefits were outlawed before a re-assessment
could be made.2 When the proper authorities have accepted
the work as satisfactory it is conclusive, and the property owner
cannot defend against the assessment by showing that the work
is not properly performed. " No misconstruction nor malcon-
struction of the work arising from the incapacity, the honest
mistake or the fraud of the contractor would invalidate the as-
sessment or relieve the parties assessed from the obligation to
pay it. In this respect the property owners assessed under the
provisions of the law for the cost of a sewer must stand upon
the same footing with parties assessed for taxes for the public
benefit. They take the hazard incident to all public improve-
ments of their being faulty or useless through the incapacity
or fraud of public servants." l The amount of the assessment
should be made a lien upon the land benefited and a method
provided for its sale.4
§ 121. Personal liability for assessments. — The English stat-
utes make local assessments a charge upon the land and also
authorize a personal action against " the present and future
owner of the property."* In many states such a liability has
been imposed and been unquestioned,6 while in others it has
been sustained after full consideration.7 But most of the latest
cases support the view that no personal judgment can be en-
tered against the owner of the land benefited. The reason for
this rule is thus stated by the supreme court of California : 8
" To say that the owner of land bordering upon an improved
1 Reilly v. City of Albany, 112 N. Y. cases cited in note to Ivanhoe v.
30, 19 N. E. Rep. 50a Enterprise, 29 Oreg, 245, 35 L. R A. 60.
1 Denny v. City of Spokane, 48 C. 7 Dewey v. Des Moines (Iowa), 70 X.
C. A. 282, 79 Fed. Rep. 719. W. Rep. 805 (1897); Farwell v. Manu-
1 State v. Jersey City, 29 N. J. Law, factoring Co. (Iowa), 66 N. W. Rep.
441; Cooley, Taxation, 671. 177 (1896).
4McInery v. Reid, 23 Iowa, 410. « Tay lor v. Palmer, 31 CaL 241. To
See Morrison v. Hershire, 32 Iowa, the same effect are Dempster v. Peo-
271. pie, 158 III 36; 111. Cent. R R Co. v.
* Bermonsey v. Ramsey, L. R 6 People, 161 EL 244; Shepherd v. Sul-
C. P. 247. livan, 1C6 III 78, 46 N. E, Rep. 720;
6 Emery v. Bradford, 29 CaL 75, and Raleigh v. Peace, 110 N. C. 32, 17 L.
118
POWEUS OF PUBLIC CORPORATIONS.
[§ 121.
street can be made personally liable for the payment for the
improvement is equivalent to saying that his entire estate, real,
personal or remote from it, whether within the corporate lim-
its or without, whether benefited or not, shall be held respon-
sible for the tax, which, in turn, is equivalent to saying that
his entire estate may be taxed for the improvement, in direct
contradiction to the very terms of the power." • In some states
a personal judgment not to exceed the value of the property is
allowed,1 while in others the liability is limited to the amount
of the fund realized from the sale of the land.2 Under the pre-
vailing rule the only judgment allowable is for the enforcement
of the lien upon the land in the exact manner specified by the
law.8
R. A. 330; Ivanhoe v. Enterprise, 29
Oreg. 245, 35 L. R A. 58, and note.
Neeman v. Smith, 50 Mo. 525; Shaw
v. Pickett, 26 Vt 482; St. Louis v.
Allen, 53 Mo. 44. In Craw v. Tolono,
96 III. 255, 35 Am. Rep. 143, the court
said: "A man who owns real estate
within a state or municipality nec-
essarily subjects that property to
the lawful rules and regulations of
the state or municipality; but he
does not thereby subject the rest of
his fortune not within such state or
municipality to the jurisdiction of
such municipality, unless he is a
citizen or resident of such state or
municipality or transacts business
therein." See Noonan v. Still water,
33 Minn. 198.
1 See Broadway Church v. McAtee,
8 Bush (Ky.), 508, 8 Am. Rep. 408.
2 Moale v. Baltimore, 61 Md. 224.
3 Pleasant Hill v. Dasher, 120 Mo.
675; Clinton v. Henry Co., 115 Mo.
557. The right to a personal judg-
ment under a statute giving power
to collect assessments " in the same
manner as other taxes are collected"
is doubted in McCrowell v. Bristol,
89 Va. 652, 20 L. R. A. 65a
CHAPTER Till.
PARTICULAR POWERS — CONTINUED,
L THE POWER OF EMINENT DOMAIN.
§ 122. Definition.
12a May be delegated.
124 What may be taken.
125. Must be for public use.
126. Property already appropriated
to public use.
127. Meaning of property.
12a What constitutes a "taking."
129. The proceedings.
130. The tribunal.
131. Notice.
132. The compensation.
133. Consequential injuries
134 Benefits.
135. Manner of payment.
136. Right of appeal,
IL JUDICIAL POWER
137. Power to establish court.
§138. Jurisdiction.
139. Qualifications of judges and
jurors.
140. Procedure — Jury trial.
ILL CORPORATE OR PRIVATE POW-
ERS.
141. In general.
142. Right to hold property.
143. Parks and cemeteries.
144 Wharves and ferries.
145. Water and lights.
146. Power to own and operate
gas, light and water plants.
147. Nature o~f the power.
148. The acquisition of the plant.
149. Contracts between the mu-
nicipality and franchise
companies.
I. THE POWER OF EMINENT DOMAIN.
§ 122. Definition. — The power of eminent domain is " that
superior right of property pertaining to the sovereignty by
which the private property acquired by its citizens under its
protection may be taken or its use controlled for the public
benefit, without regard to the wishes of its owners. More ac-
curately, it is the rightful authority which exists in every sov-
ereignty to control and regulate those rights of a public nature
which pertain to its citizens in common and to appropriate and
control individual property for the public benefit as the public
safety, necessity, convenience or welfare may demand." l
It grows out of the necessities of government and is the off-
spring of political necessity.2 It is distinct from the police
power and the power of taxation.3
1 Cooley, Const. Lim. (6th ed.) 643; 'Nichols v. Bridgeport, 23 Conn.
Lewis, Eminent Domain, ch. 1. 189.
2 Kohl v. United States, 93 U. S.
367.
120 POWERS OF PUBLIC OOBPOEATIONS. [§§ 123, 124.
§ 123. May ~be delegated,. — The right to exercise the power
of eminent domain may be delegated to public or private cor-
porations.1 Such a grant must, however, be strictly construed.2
When the power is clearly conferred the courts will not deter-
mine the propriety of its exercise.8
§ 124r. What may be taken. — A grant of the power of em-
inent domain in general terms authorizes the taking of private
property, but it is only when there is express or clearly implied
authority for this purpose that it will be held to authorize the
taking of public property.4 Every species of property may be
taken under this power. Thus, the state, or a body to which
the power has been delegated, may, when necessary for a pub-
lic purpose, take lands,5 houses,6 piers,7 bridges,8 streams of
water9 and corporate property and franchises.10 Kiparian
rights are property which cannot be taken without compensa-
tion.11 Thus, the riparian rights of the lower owners upon the
banks of a stream cannot, except in aid of navigation, be taken
by the state for a public purpose without compensation.12 The
legislature may determine the quantity of estate which shall
be taken,13 or it may delegate this power to a municipality.14
It may authorize the taking of the fee 15 or of a mere easement.18
When necessary a city may condemn lands situated beyond
the corporate limits.17
* Kansas City v. Marsh Oil Co. (Mo., 10 West River Bridge Co. v. Dix, 6
1897), 41 S. W. Rep. 943; Allen v. Jones, How. (U. S.) 507.
47 Ind. 438; Cooley, Const Lim. (6th u Rumsey v. N. Y. & N. E. Ry. Co.,
ed.) 662. 130 N. Y. 88, 15 L. R. A. 618, anno-
2 Alexandria, etc. Ry. Co. v. Alex- tated.
andria, 75 Va. 780; Leeds v. Rich- 12Kaukauna Water Power Co. v.
mond, 102 Ind. 372. Green Bay Canal Co., 142 U. S. 254;
* Dunham v. Hyde Park, 75 III 371. Patten Paper Co. v. Kaukauna Water
4 Seattle & Mont. R. Co. v. State, 7 Power Co., 90 Wis. 370, 28 L. R. A.
Wash. 150, 22 L. R. A. 217. 443.
5 Bliss v. Hosmer, 15 Ohio, 44. 13 Brooklyn Park Com'rs v. Arra-
6 Wells v. Somerset, etc. R. Co., 47 strong, 45 N. Y. 234; Wyoming Coal
Me. 345. Co. v. Price, 81 Pa. St. 156.
7 In re Union Ferry, 98 N. Y. 139. "Powers' Appeal, 29 Mich. 504.
A lease of the wharves of a port may 15Haldeman v. Pennsylvania Ry.
be taken. Duffy v. New Orleans, 49 Co., 50 Pa. St. 425.
La. Ann. 114. «• Kellogg v. Malin, 50 Mo. 496;
8 Northampton Bridge Case, 110 Clark v. Worcester, 125 Mass. 226.
Mass. 442. 17 Thompson v. Moran, 44 Mich. 602.
'"Reusch v. Chicago, etc. Ry. Co.,
57 Iowa. 685.
§ 125.
PARTICULAR POWERS.
121
§ 125. Must be for piiblic use. — It is only for public use and
upon compensation made that private property may be taken
under the power of eminent domain. "What is a public use is
always a question of law. The expediency or necessity of the
exercise of the power is a political question which must be de-
termined by the legislature,1 or a body to which the power is
delegated,2 and its action will not be reviewed by the courts
unless there is gross error or extreme wrong results therefrom.8
Public roads and streets,4 parks5 and squares,6 markets,7 ceme-
teries,8 school buildings,9 water and gas plants,10 sewers and
drains,11 almshouses and other public buildings,12 are illustrations
of public uses for which private property may be taken under
the power of eminent domain. The use of water for the pur-
pose of irrigation is a public use.13 Land cannot be taken for a
purely private road. But the rule is probably otherwise where
the road is to some extent public, as, for instance, where a road
is opened at the instance of a private person who agrees to
keep it in repair, although the public is permitted to use it.14
1 Paxton, etc. Co. v. Farmers' Co.,
45 Neb. 884, 29 L. R A. 853; Dingley
v. Boston, 100 Mass. 558; Ryerson v.
Brown, 35 Mich. 333, 24 Am, Rep.
564; In re St Paul Ry. Co., 34 Minn.
227. On the general subject of pub-
lic uses for which property may be
taken under the power of eminent
domain, see Wisconsin "Water Co. v.
Winans, 85 Wis. 26, 20 L. R. A. 662;
Pittsburgh, etc. Co. v. Ben wood Iron
Works, 31 W. Va. 710, 2 L. R. A. 680;
Barre Ry. Co. v. Montpelier, etc, Ry.
Co., 61 Vt 1, 4 L. R A. 785.
2 New York, etc, R Co. v. Long, 69
Conn. 424
* Waterloo Mf& Co. v. Shannahan,
128 N. Y. 345.
« Wild v. Deig, 43 Ind. 455; Bank-
head v. Brown, 25 Iowa, 540; Elliott,
Road and Streets, § 146.
5 In re Mayor of New York, 99 N.'Y.
569; South Park Com'rs v. Williams,
51 III 57.
6 Owners v. Mayor, 15 Wend. (N. Y.)
374.
7 In re Application of Cooper, 38
Hun (N. Y.), 515.
« Balch v. County Com'rs, 103 Mass.
106.
'Williams v. School District, 37
Vt. 271.
10 Lake Pleasanton Water Co. T.
Contra Costa Water Co., 67 CaL 659;
Bailey v. Woburn, 126 Mass. 416;
Tyler v. Hudson, 147 Mass. 609; State
v. Eau Claire, 40 Wis. 533; In re
Deering, 93 N. Y. 651.
» Norfleet v. Cromwell, 70 N. C. 634,
16 Am. Rep. 787; Bancroft v. Cam-
bridge, 126 Mass. 438.
12 Lewis, Eminent Domain, g 174,
13 Bankhead v. Brown, 25 Iowa, 545;
Welton v. Dickson, 38 Neb. 767, 33
L. R A. 496; La tab Co. v. Peterson,
2 Idaho, 1118, 16 L. R A. 81; Varner
v. Martin, 21 W. Va. 538.
'» Paxton & Hereby Co. v. Farmers',
etc. Co., 45 Neb. 884, 29 L. R A. 853;
Lindsay Irr. Co. v. Mebrtens, 97 Cal.
676. As to flowage of land, see Tur-
ner v. Nye, 154 Mass. 578, 14 L. R A.
487, and note.
122 POWERS OF PUBLIC COKPOKATIONS. [§ 126.
Land may be taken for a useful purpose which serves to satisfy
a public want, notwithstanding the fact that the element of
ornament or beauty may be a controlling consideration.1
§ 126. Property already appropriated to public use. — Prop-
erty which is already appropriated to a public use cannot be
taken for another public use unless the statute clearly confers
authority to make a second seizure.2 Thus, under a general
power, a city cannot excavate a canal across a railway yard
where there are numerous tracks. " In determining whether
a power generally given is meant to have operation upon lands
already devoted by legislative authority to a public purpose,"
said Folger, J.,3 "it is proper to consider the nature of the prior
public work, the public use to which it is applied, the extent to
which that use would be impaired or diminished by the taking
of such part of the land as may be demanded by the subsequent
public use. If both uses may not stand together, with some
tolerable interference which may be compensated for by dam-
ages paid; if the latter use when exercised must supersede the
former, it is not to be implied from a general power given,
without having in view a then existing and particular need
therefor, that the legislature meant to subject lands devoted to
a public use already in exercise to one which might thereafter
arise. A legislative intent that there should be such an effect
will not be inferred from a gift of power made in general terms."
Under general power one railway company cannot lay a track
longitudinally along an existing track of another road.4 But
it may make necessary crossings over another road.5 A public
cemetery cannot be taken for highway purposes without ex-
press authority.6 But a part of a school lot may be taken
*
!Higginson v. Nahant, 11 Allen, statute. People v. Thompson, 98
532; Gardner v. Newburg Tp., 2 N. Y. 6.
Johns. Ch. 162; Eldridge v. Smith, «In re Buffalo, 68 N. Y 167.
34 Vt. 482. * Boston & M. R R Co. v. Lowell,
2 Cincinnati, etc. R Co. v. Belle etc. R Co., 124 Masa 368.
Centre, 48 Ohio St. 273, 27 N. E. Rep. 6St. Paul, etc. Co. v. Minneapolis
464; Old Colony Ry. Co. v. Farming- 35 Minn. 141; Minneapolis W. R. Co.
ton Water Co., 153 Mass. 561, 13 L. R v. M. & St L. R Co., 61 Minn. 502.
A. 333. The legislature will not be But see Sharon R Co.'s Appeal, 122
deemed to have authorized the tak- Pa. St 533, and cases cited.
ing of such property unless the in- 6 Evergreen Cemetery Ass'n v.
teu'tion is clearly expressed in the New Haven, 43 Conn. 234.
§§ 127, 128.] PARTICULAK POWERS. 123
when what remains is not rendered wholly useless.1 The works
and franchises of a water company may be condemned by a
city on the ground that they are required for a use of a higher
and wider scope. " All property within the state is subject to
the right of the legislature to appropriate for a reasonable and
necessary use upon a just compensation being provided to be
made therefor, and there can be no distinction in favor of cor-
porations whose franchises and operations impart to them a
character."2
§ 12T. Meaning of "property" — The word "property," as
now understood, includes all rights which pertain to the own-
ership of things.3 In a leading case 4 it appeared that after
paying the owner of land for the damages resulting from laying
out a railroad across his land, the company in building its road
made a deep cut through a ridge north of the land which pro-
tected it from high water in a neighboring river. In times of
high water, stone and gravel were washed through the cut upon
the plaintiff's land, and it was held that he could recover for
this damage, notwithstanding the fact that the road had been
constructed with due care. In this case, which has been pro-
nounced " the most satisfactory and best considered case which
can be found in the books on this subject," 5 will be found a full
discussion of what is meant by property and what is a taking
of property within the meaning of the constitution.
§ 128. What constitutes a taking. — It is not necessary that
there should be a physical taking of the property. It may be by
restricting the use or depriving the owner of an incorporeal
right,6 such as by the flowing of lands or the diversion of a
stream.1 The owner of land abutting on a navigable stream
iEasthampton v. County Com'rs, 5 Grand Rapids Booming Co. v.
1G4 Mass. 424. Jarvis, 30 Mich. 308, Christiancy, J.
2 In re Brooklyn, 143 N. Y. 596, 26 6Pumpelly v. Green Bay, etc. Co.,
L.R.A.270. 13 Wall.'(U. S.) 166; Stephens v.
' Arnold v. Hudson R. Co., 55 N. Y. Proprietors of Canal, 12 Mass. 466;
661; Morrison v. Semple, 6 Binn. (Pa.) Grand Rapids Booming Co. v. Jar-
94; Denver v. Bayer, 7 Col. 113. See vis, 30 Mich. 308.
an article by Mr. Sedgwick, in North 7 Baltimore, etc, R, Co. v. M'Gruder,
Am. Rev., Sept. 1882, voL 135, p. 253. 34 Md. 79, 6 Am. Rep. 310; Pettigrew
4 Eaton v. Boston, etc. R. Co., 51 v. Evansville, 25 Wis. 223.
N. H.504.
124: POWERS OF PUBLIC OOBPOKATIONS. [§§ 129, 130.
cannot be deprived of all access to the same without proper
compensation,1 although it was at one time held that when
the title to the bed of the stream was in the state there was
no taking when the water front was appropriated for a public
purpose.2 A change of the grade of a street is not a taking
of the property of abutting owners for public use.8 It was at
one time held that there was no taking unless there was an
actual physical appropriation of the property or divestiture of
the title. The damage, in order to constitute a taking^, must be
of such a nature as to give a cause of action on common-law
principles. Thus, there can be no recovery for damages re-
sulting from the location of a jail, although it may result in
actual injury to property.4
§ 129. The proceedings. — The manner in which private prop-
erty may be taken for public use is always provided by statute.
This statutory proceeding must be strictly followed. It may
be instituted by the state or by some person or body to which
the power has been delegated. It is generally commenced by
the filing of a petition signed by a certain number of persons
possessing the requisite qualifications. This petition must show
all the jurisdictional facts and substantially comply with the
statute, although it is not necessary that it should be technic-
ally accurate.5
§ 130. The tribunal. — It is necessary that some impartial
tribunal exercising judicial power be provided for assessing
the damages to be awarded.6 It may consist of a court, a
court and jury, or commissioners selected by the court.7 It
is not necessary, however, that it should be a tribunal exercis-
ing judicial functions only.8 The constitutional right to a jjjuy
trial has no application to proceedings for the condemnation
1 Railway Co. v. Renwick, 102 U. S. there is a necessity for taking the
180. property. Colville v. Judy, 73 Mo.
2Tomlin v. Dubuque, etc. Ry. Co., 651; In re Road in Sterritt Town-
82 Iowa, 106, 7 Am. Rep. 126. ship, 114 Pa. St. 637.
3 Talbot v. New York & Harlem R 6 Ames v. Lake Superior, etc. Co.,
R. Co., 151 N. Y. 155; Transportation 21 Minn. 241; Clifford v. Comrnis-
Co. v. Chicago, 99 U. S. 635. sioners, 59 Me. 262.
« Burwell v. Vance Co., 93 N. C. 73. 7 State v. Jones, 109 U. S. 513.
5 State v. Morse, 50 N. H. 9; In re 8Shue v. Commissioners, 41 Mich.
Grove Street, 61 Cal. 438. The peti- 638.
tion must contain au allegation that
§ 131.] PARTICULAB POWERS. 125
of property under the power of eminent domain.1 In some
states, however, the constitution provides for a jury trial in
such cases.2 It has been held that this provision requires an
ordinary jury of twelve men,8 and that the legislature cannot
authorize a verdict by a majority thereof.4
§ 131. Notice. — The property of an individual cannot be
taken for public use without due process of law, and this re-
quires that he shall have notice of the proceedings.5 There
must be " an orderly proceeding adapted to the nature of the
case, in which the citizen has an opportunity to be heard and
to defend, enforce and protect his rights. A hearing or an op-
portunity to be heard is absolutely essential." 6 The substance
of the notice must be such as the law requires, and it must be
given in the prescribed manner.7 When not otherwise pro-
vided it may be by advertisement in a newspaper.8 "The
manner of the notification is immaterial, but the notification is
indispensable." 9 It must be given to those who have a vested
interest of record in the estate, but it need not be given to
mere lienholders or to the holders of a contingent or inchoate
interest.10 Thus, it need not be given to a judgment creditor,11
iKohl v. United States, 91 U. a » Stewart v. Palmer, 74 N. Y. 183;
375; New York, etc. R Co. v. Long, Wurts v. Hoagland, 114 U. & 606;
64 Conn. 424; Martin v. Tyler, 4 N. Neeld's Road, 1 Pa. St. 353; Lewis,
Dak. 278, 25 L. R A. -838; Bruger- Em. Dom., § 364.
man v. True, 25 Minn. 123; Backus v. 8 Birge v. Chicago, etc. Ry. Co., 65
Lebanon, 11 N. H. 19, 35 Am. Dec. Iowa, 440; Morgan v. Chicago, etc.
466. See Lewis, Eminent Domain, Ry. Co., 36 Mich. 428; Huling v. Kaw
§311. For a discussion of " due pro- Valley R. Co., 130 U. S. 559. As to the
cess of law," see Mo. Pac. Ry. Co. v. effect of allowing a jury trial in an
Humes, 115 U. S. 512. appellate court, see Thorp v. Witham,
2 Paul v. Detroit, 32 Mich. 108; 65 Iowa, 566, and cases cited, § 140,
Williams v. Pittsburg, 83 Pa. St. 71. infra.
3 Mitchell v. Illinois, etc. Ry. Co., 58 9 Petition of De Puyster, 80 N. Y.
HI. 286. 565; Wilkins v. St. Paul, 16 Minn.
4 Jacksonville, etc. Ry. Co. v. 271; State v. Chicago, etc. Ry. Co.,
Adams 33 Fla. 608, 24 L. R A. 272. 80 Iowa, 586. The reasons for the
5 The contrary is held in Illinois, rule are well stated in Cupp v.
Maryland and Mississippi Johnson Commissioners, 19 Ohio St. 173.
v. Joliet, etc. R Co., 23 III 202; ™Girard'v. Omaha, etc. Ry. Co.,
George's Creek Coal Co. v. New Cen- 14 Neb. 270.
tral Coal Co., 40 Md. 425; Stewart v. " Gambel v. Stolte, 59 Ind. 446;
Board of Police, 25 Miss. 479. Watson v. N. Y. etc. Ry. Co., 47
6 Mr. Justice Field, in Windsor v. N. Y. 157.
McVeigh, 93 U. S. 274.
126 POWERS OF PUBLIC CORPORATIONS. [§ 132.
or to the holder of the dower interest;1 but it must be given to
a mortgagee,2 and to both a landlord and his tenant.3 But this
is largely governed by the language of the statute. As a gen-
eral rule, " all persons who have any proprietary interest in the
property taken or proposed to be taken should be made par-
ties to the proceedings, and also all other persons, if any, who
are required to be made parties by statute."4 .
§ 132. Tlie compensation. — The compensation allowed should
be the full reasonable value of the interest taken. In deter-
mining the value of land appropriated for public purposes " the
same considerations are to be regarded as in a sale of property
between private parties. The inquiry in such cases must be,
what is the property worth in the market, viewed not merely
with reference to the uses to which it is at the time applied,
but with reference to the use to which it is at the time adapted ;
that is to say, what is it worth from its availability for valu-
able uses. Property is not to be deemed worthless because the
owner allows it to go to waste, or to be regarded as valueless
because he is unable to put it to any use. Others may be able
to use it and make it subserve the necessities or conveniences
of life. Its capability of being made thus available gives it
a market value which can be readily estimated. So many and
varied are the circumstances to be taken into account in deter-
mining the value of property taken for public purposes, that it
is perhaps impossible to formulate a rule to govern the ap-
praisement in all cases. Exceptional circumstances will modify
the most carefully guarded rules; but as a general thing we
should say that the compensation to the owner is to be esti-
mated by reference to the uses for which the property is suit-
able, having regard to the existing business or wants of *he
community, or such as may be reasonably expected in the im-
mediate future." 5 The improvements upon the property should
be taken into consideration.8 Some cases hold that the owner
1 City v. Kingsboro, 101 Ind. 290. * Boom Co. v. Patterson, 98 U. S.
2Voegtly v. Pittsburgh, etc. Ry. 403, Field, J.; Laurence v. Boston, 119
Co., 2 Grant's Cas. (Pa.) 243. Mass. 126; Commissioners v. Rail-
3 For a full treatment of this sub- way Co., 63 Iowa, 297; Chapman v.
ject, see Lewis, Em. Dom., ch. XII. Oshkosh, etc. Ry. Co., 33 Wis. 629;
* Sherwood v. City, 109 Ind. 410; King v. Minneapolis, 82 Minn. 224.
Severin v. Cole, 88 Iowa, 463. 6 Jacksonville, etc. Ry. Co. v.
§ 133.] PAETICULAK POWERS. 127
is entitled to the market value for the use to which the land
may be most advantageously applied and for which it would
sell for the highest price in the market.1 Sentimental valua-
tions based upon associations cannot be taken into considera-
tion, as it is impossible to measure such matters in money.1
The jury in condemnation proceedings cannot rely upon their
own judgment in the matter of damages and reject the evi-
dence of competent witnesses.3
Neither the diminished value of a stock of merchandise, nor
the loss of profits caused by removal made necessary by the
taking of real estate, is a proper element of damage.4 The cost
of adjusting a bridge erected by a railway company for the
purpose of carrying its track over a street-crossing, after the
street has been widened by the city under the power of eminent
domain, is a proper element of damages to be allowed the com-
pany in proceedings to condemn a portion of its property for
the purpose of such widening, notwithstanding the fact that
an ordinance provides that the company shall «rect and main-
tain the bridge at its own expense.5
§ 133. Consequential injuries. — The damages resulting to
the property of a person by the lawful exercise by another of
his legal rights is not a taking of the property of the former.
This question arises when the state engages in the improve-
ment of rivers and highways. The prevailing doctrine is that
there can be no recovery for injuries resulting from the
change of the grade of a street. So the owner of a fishery
which is reduced in value by improvements made in a navi-
gable stream has no remedy.6 Mr. Justice Miller says:7 "The
Walsh, 106 I1L 253. The cost of re- franchise. Montgomery Co. v.
pairs upon a toll bridge which has Schuylkill Bridge Co., 110 Pa. St.
been taken by the county cannot be 54
considered. Mifflin Bridge Co. v. 2Cooley, Const. Lim. (6th ed.) 697.
Juniata Co., 144 Pa. St 235, 13 L. R » Peoria Gas L. Co. v. Peoria R Co.,
A. 431. 146 IlL 372, 21 L. R A. 37&
i King v. Minneapolis Ry. Co., 32 * Becker v. PhiL etc. R Co., 177
Minn. 224. Where a bridge is taken Pa. St 252, 25 L. R A. 58a
by a county the measure of damages 6 Kansas City v. Kansas City Belt
is the value of the property to the R Co., 102 Mo. 633, 10 L. R A. 851.
owners and not to the county tak- 6 Parker v. Mill Dam Co., 20 Me.
ing it. The owners are entitled to 353, 37 Am. Dec. 56; Commonwealth
recover not only the cost of the v. Look, 108 Mass. 452.
structure, but also the value of the " Pumpelly v. Green Bay, 13 Wall.
128 POWERS OF PUBLIC CORPORATIONS. [§§ 134, 135.
doctrine that for a consequential injury to the property of an
individual for the prosecution of improvements of roads, streets,
rivers and other highways, there is no redress ... is a
sound one in its proper application to many injuries to prop-
erty ; . . . but we are of opinion that the decisions referred
to have gone to the uttermost limit of sound judicial construc-
tion in favor of this principle, and in some cases beyond it,
and that it remains true that where real estate is actually in-
vaded by superinduced additions of water, earth, sand, or other
material, or by having any artificial structure placed on it so
as to effectually destroy or impair its usefulness, it is a taking
within the meaning of the constitution, and that this proposi-
tion is not in conflict with the weight of judicial authority in
this country, and certainly not with sound principles."
§ 134:. Benefits. — The cases are conflicting upon the question
of the right to set off benefits which are special to particular
land, against the damages awarded. Certain cases hold that
such benefits cannot in any case be offset against the injury
sustained by the land-owner;1 and this principle has been in-
corporated in some constitutions.2 Others allow a set-off only
against incidental injuries sustained,3 while still others allow
such a set-off against the value of the land as well as against
incidental injuries.4 But benefits to be allowed in any case
must be of a kind not common to the public at large.8
§ 135. Manner of payment. — In the absence of a constitu-
tional requirement to the contrary, it is sufficient if an adequate
and certain remedy is provided whereby the land-owner may
compel payment of damages.6 In a recent case 7 the court said :
" Under constitutional provisions declaring that private prop-
erty shall not be taken for public use without just compensa-
166; Talbot v. N. Y. & Harlem R R 828, 25 Am. Rep. 627; Root's Case, 77
Co., 151 N. Y. 155. Pa. St. 276.
1 Israel v. Jewett, 29 Iowa, 475. 8 Commissioners v. Johnson, 71 N. C.
2 See Newmann v. Metropolitan, 398; Lipes v. Hand, 104 Ind. 503. On
etc. Ry. Co., 118 N. Y. 618. the general question, see Elliott,
SRobbins v. Milwaukee, etc. Co., Roads and Streets, § 183, and cases
6 Wis. 637; Shawneetown v. Mason, cited.
82 111. 337; Shipley v. Baltimore, etc. 6Sage v. Brooklyn, 89 N. Y. 189.
R. Co., 34 Md. 336. 7 Martin v. Tyler, 4 N. Dak. 278, 25
« Putnam v. Douglas Co., 6 Orcg. L. R A. 838.
§ 136.] PARTICULAR POWERS. 129
tion, and silent as to the time of payment, it has generally, if
not universally, been held that when property was thus taken
by a private corporation, payment must precede the taking;
but where the property was taken directly by the state or a
municipality of the state, it has generally been held a sufficient
compliance with the provision if the compensation was defi-
nitely ascertained and made a. charge upon the municipal fund
for which the credit of the municipality was pledged." But
the party must not be required to resort to a lawsuit in order
to collect his money.1 Judge Cooley says : s "Whenever the
necessary steps have been taken on the part of the public to
select the property to be taken, locate the public work and de-
clare the appropriation, the owner becomes absolutely entitled
to the compensation, whether the public proceed at once to
occupy the property or not. If a street is legally established
over the land of an individual, he is entitled to demand pay-
ment of the damages without waiting for the street to be
opened." l "When the law expressly requires that the money
shall be paid before the property is taken, there can be no valid
taking until after the payment is made.4
§ 136. Bight of appeal. — It is for the legislature to say
whether the land-owner shall have a right to appeal from the
determination of the tribunal which is established to determine
his damages.5 It may provide for an appeal or it may make
the decision final. The trial in the appellate court is de novo.*
The appeal vacates the decision appealed from.7 The usual
remedy for reviewing erroneous proceedings is by certiorari,
and under it only questions of law are considered.8
1 Shepardson v. Milwaukee, etc. R, Southern Mich. Ry. Co., 3 Mich.
Co., 6 Wis. 605. 496.
2 Cooley, Const. Lim. (6th ed.) 696. « Martin v. Tyler, 4 N. Dak. 278, 25
3 Rogers v. Bradshaw, 20 Johns. L; R. A. 838.
744; Bloodgood v. Mohawk, etc. R. 5Simms v. Hymmes, 121 Ind. 534;
Co., 18 Wend. 9, 31 Am. Dec. 313; Matter of State Reservation, 132
Brock v. Hishen, 40 Wis., 674; Long N. Y. 734; Fass v. Seehawer, 60 Wis.
v. Fuller, 68 Pa, St. 170. The same 525; Harwood v. Shaw, 126 111. 53.
rule has been adopted in Minnesota 6 Hardy v. McKinney, 107 Ind. 367.
and Michigan, where the constitu- 'Minneapolis v. Northwestern Ry.
tion requires that compensation shal 1 Co., 32 Minn. 452.
be first paid or secured. State v.Mes- 8Farmington River Water-Power
senger, 27 Minn. 119; State v. Brug- Co. v. County Com'rs, 112 Mass. 206;
gerrnan, 31 Minn. 493; People v. Tiedt v. Carstensen, 61 Iowa, 334.
9
130 POWERS OF PUBLIC CORPORATIONS. [§§ 137, 138.
II. JUDICIAL POWER.
§ 137. Power to establish courts. — By the common law mu-
nicipal corporations have power to establish courts for the
purpose of determining controversies of limited and local im-
portance. The early charters " contained grants of courts of
various degrees and importance ; the mayor and aldermen were
in some instances made magistrates ex officio and authorized to
hold courts of quarter sessions, and these grants were accom-
panied or not, as the case might be, by a clause called the
' non-intromittant ' clause, which ousted the jurisdiction of the
county magistrates. In some cases towns were made counties
by themselves ; in some cases there was no limitation at all
upon the extent of the town jurisdiction ; they might try all
crimes and inflict any punishment up to death; in other cases
they were confined within narrower limits." l
The grant of power to hold a court imposes a duty upon the
municipality.2 In the United States these courts are known
by various names, such as municipal, mayor's, recorder's and
police courts. Their creation and jurisdiction rest with the
legislature, which may modify and change their jurisdiction at
will.3 The legislature must, of course, act in accordance with
constitutional provisions. When the constitution confers upon
the legislature authority to create " other courts " than those
named in the constitution, it may erect municipal courts for
the trial of offenses against municipal ordinances and confer
upon them the general powers of justices of the peace within
the limits of the municipality.4
§138. Jurisdiction. — The jurisdiction of municipal courts
ordinarily extends to the enforcement of municipal ordinances
and the recovery of penalties for a breach thereof and to contro-
versies between individuals when the amount involved does not
exceed a specified amount.8 They are often empowered to de-
1 Stephens, Hist Grim. Law of A municipal court cannot sit outside
Eng., I, p. 116. of the corporation limits. Herschoff
2 Rex v. Mayor of Hastings, 5 Barn. v. Beverly, 43 N. J. L. 139.
& Aid. 692. ' & Fox v. Ellison, 43 Minn. 41; Hen-
»Boyd v. Chambers, 78 Ky. 140. derson v. Davis, 106 N. C. 88; People
* State v. Young, 30 Kan. 445; v. Lawrence, 82 CaL 182; State v.
Shafer v. Muma, 17 Md. 331. See Wright, 80 Wis. 648; Brown v. Je-
Fa'wcett v. Pritchard, 14 Wash. 604. rouie, 102 III 371.
§§ 139, 140.] PAKTICUIAB POWERS. 131
termine civil suits where the amount involved does not exceed
five hundred dollars, and when title to land is not involved.
As a rule they have no equity jurisdiction. In some instances,
however, the jurisdiction of city courts is by statute made as
extensive as that of the district and circuit courts.1 When the
jurisdiction is not co-extensive with the limits of a municipality,
the court is not properly a municipal court. But the fact that
it is called by that name is not material when the constitution
authorizes the creation of inferior courts, and the court created
comes within this designation.2
§139. Qualifications of judges and jurors. — The common-
law rule that the municipality cannot be a suitor in its own
court and that a member of the corporation cannot sit as judge
or juror in a suit in which the corporation is interested * is not
enforced in the United States. It is considered that the inter-
est which each citizen has in the result of such litigation is too
inconsiderable to give rise to any prejudice.4 -
§ 140. Procedure — Jury trial. — The procedure in municipal
courts is ordinarily of a summary nature, as the number and
comparative unimportance of the offenses tried renders the
system of jury trial impracticable. The constitutional right
to a jury trial has never been understood to apply to violations
of city ordinances. The violations of such ordinances are not
criminal offenses or crimes as those words are understood in
constitutional law. The constitutional guaranty that "the
right of trial by jury shall remain inviolate " does not prevent
the enforcement of municipal ordinances by a summary pro-
i Bledsoe v. Gary, 95 Ala. 70, 10 So. 662; Montezuma v. Minor, 73 Ga. 484
Rep. 50'2. As to jurisdiction in cases But see Omaha v. Olmstead, 5 Xeb.
of violation of game laws, see State 446; Kemper v. Louisville. 14 Bush,
v. Synott, 89 Me. 41 ; bastardy, Will- 87. It is held that in an action in a
iams v. State, 112 Ala. 688; forcible state court to which a municipal cor-
entry and unlawful detainer, Sucha- poration is a party, a taxpayer of the
neck v. State, 45 Minn. 26^ corporation cannot serve as a juror
2Shaffel v. State (Wis.), 72 N. W. unless his common-law liability has
Rep. 888 (1897). been expressly or impliedly removed
3 City of London v. Wood, 12 Mod. by statute. Dively v. Elmira, 51 N. Y.
674; Reg. v. Rogers, 2 Lord Raym. 506; Boston v. Baldwin, 139 Mass.
315; Kindinger v. Saginaw, 59 Mich.
4 City Council v. Pepper, 1 Rich. 355. See Beach, Pub. Corp., sec. 1289.
(S. C.) 364; State v. Wells, 46 Iowa,
132 POWERS OF PUBLIC CORPORATIONS.
cedure;1 but the legislature cannot confer upon municipal cor-
porations the power to proceed summarily and try persons for
the commission of criminal offenses against the laws of the
state.2 It is generally held in the state courts that the consti-
tutional right of a jury trial is not denied if the defendant, who
is convicted summarily in an inferior court, has a right to ap-
peal to a higher court where he can obtain a -jury trial;8 but
the supreme court of the United States, in a recent case,4 said :
""We cannot assent to that interpretation of the constitution,
except in that class or grade of offenses called petty offenses,
which, according to the common law, may be proceeded against
summarily in any tribunal legally constituted for that purpose.
The guaranty of an impartial jury to the accused in a criminal
prosecution, conducted either in the name or by or under the
authority of the United States, secures to him the right to en-
joy that mode of trial from the first moment, and in whatever
court he is put on trial for the offense charged."
Actions for violations of city ordinances are sometimes
brought in the name of the state * and sometimes in the name
of the corporation.6
III. CORPORATE OR PRIVATE POWERS.
§ 141. In general. — The private or corporate powers con-
ferred upon municipal corporations must have some relation to
their public duties. They cannot properly be authorized to en-
gage in a speculative or purely private mercantile business, for
the sole purpose of earning money in competition with individ-
iCallan v. Wilson, 127 U. S. 540; 8 state v. Powell, 97 N. C. 41-7. Al-
State v. Lee, 29 Minn. 445; State v. though the prosecution is in the
Robitshek, 60 Minn. 123; State v. name of the state the offenses are
Harris, 50 Minn. 128; Hollenbeck against the city, and a notice of ap-
v. Marshalltown, 62 Iowa, 21; State peal must be served on the city at-
v. Glenn, 54 Md. 571. torney and not on the attorney-gen-
2 Tierney v. Dodge, 9 Minn. 156. eraL State v. Sexton, 42 Minn. 154.
For the history of courts of sum- The state as such has no interest in
mary jurisdiction, see Stephens' a prosecution for a violation of a
Hist. Grim. Law, I, p. 122. city ordinance. State v. Robitshek,
3 Jones v. Robins, 8 Gray, 329; Max- 60 Minn. 123.
well v. Board, 119 Ind. 20; Eraporia « Williams v. Com., 4 B. Mon. (Ky.)
v. Volmer, 12 Kan. 622. 146; Davenport v. Bird, 34 Iowa, 524;
<.Callan v. Wilson, 127 U. S. 540, Ex parte Holwedell, 74 Mo. 395.
556.
§ 142.] PAETICULAE POWEBS. 133
uals. An examination of the cases will show that the cor-
porate powers ordinarily and properly conferred upon these
bodies, and under and by virtue of which they acquire prop-
erty, are intended to aid the corporations to perform their duties
to the public. Originally the income from this property was
expected to pay the expenses of administering the government
of the city. The greater the wealth of the corporation in in-
come-producing property the less the necessity for resorting to
taxation of the people. The importance of the distinction be-
tween the public and private property of a municipality is of
greatest importance in considering the question of legislative
control, and of liability to individuals for negligence in the care
of such property. These subjects are elsewhere considered in
detail.
§142. Right to hold property. — A public corporation may
purchase and hold such property as is reasonably necessary to
enable it to execute its powers.1 The power is ordinarily con-
ferred in express words. A provision authorizing the council
to purchase real estate necessary " for the use, convenience and
improvement of the city" does not authorize it to bay land as
a place for holding fairs. The mere fact that from the use of
such land for annual fairs collateral advantages would accrue
to the city will not bring the purchase within the contempla-
tion of the act.2 Power to maintain public schools and to pur-
chase, hold and dispose of real, personal and mixed property
for the benefit of the town will authorize the purchase of real
estate upon which to construct a school-house.* Authority to
purchase the property owned and operated by an electric light
company as a part of its plant will not authorize the pur-
chase of property used by the company for an entirely differ-
ent purpose.4 The power of a corporation to convey,5 mort-
i Richmond, etc. Co. v. West Point 2 Eufalie v. McNab, 67 Ala. 588, 43
(Va., 1897), 27 S. E. Rep. 460; McDon- Am. Rep. 118.
aid's Ex'r v. Murdock, 15 How. (U. S.) * Tacoma v. Tacoma L. & W. Co.,
363; Ketchum v. Buffalo, 14 N. Y. 15 Wash. 499, 46 Pac. Rep. 1119.
356; West Chicago Park Com'rs v. * Allen v. La Fayette, 89 Ala. 641,
McMullen, 134 IlL 170, 25 X. E. Rep. 9 L. R A. 497.
676; Proprietors of Jeffrey's Neck v. 5Knox Co. v. Goggin, 105 Ma 182,
Inhabitants, 153 Mass. 42, 26 N. E. 16 S. W. Rep. 684: Ft. Wayne v. Lake
Rep. 239. Shore, etc. R Co. (Ind.), 18 L. R A.
367, 32 N. E. Rep. 215.
134 POWEKS OF PUBLIC COJRPOKAT1ONS. [§ 143,
gage l or lease 2 its private property differs in no essential par-
ticular from that of a natural person under like circumstances;
but property dedicated to a public use cannot be alienated
without express legislative authority.3
It is now settled that a public corporation may be empow-
ered to take and hold private property for municipal uses, and
that it will be protected in its ownership to the same extent as
would a private owner under the same circumstances. It was
early held that a public corporation could not be deprived of
property which it held for purposes of revenue without com-
pensation. The cases generally arose on the question of the
power of the legislature to dispose of this property without the
consent of the municipality.4 Under the provision of the con-
stitution of Ohio which prohibits a city from raising money for
or loaning its credit to or in aid of any company, corporation
or association, a city is not permitted to invest the public funds
in property of which another is part owner. The court said: 3
" The mischief which this section interdicts is a business part-
nership between a municipality or subdivision of the state and
individuals or private corporations or associations. It forbids
the union of public and private capital or credit in any enter-
prise whatever."
§ 143. Parks and cemeteries. — A cemetery has been held to
belong to a city in its private or corporate capacity. Thus, in
a recent case 6 where the subject is fully discussed, the court
said : " The city of Boston is possessed of much other property
1 Belcher's S. R. Co. v. Grain Elev. delphia v. Fox, 54 Pa. St. 169; Town of
Co., 101 Mo. 193, 18 S. W. Rep. 822; Milwaukee v. City of Milwaukee, 12
Hand v. Newton, 92 N. Y. 88. Wis. 93; Grogan v. San Francisco, 18
2 State v. Laclede Gas Co., 102 Mo. Cal. 519. The development of the doc-
472, 22 Am. St. Rep. 789. trine as illustrated in the above and
s Mowry v. Providence, 16 R. I. 422, other cases is detailed in Goodnow,
16 Atl. Rep. 511; Lord v. Oconto, 47 Municipal Home Rule, ch. 9.
Wis. 386; Merriweather v. Garrett, 5 Ampt v. Cincinnati (O'lio St.), 35
102 U. S. 472; Ft Wayne v. Lake L. R A. 737; Walker v. Cincinnati,
Shore, etc. R. Co., supra. 21 Ohio St. 13, 8 Am. Rep. 24. Se^,
* Terrill v. Taylor, 9 Cranch (U. S.), also, Bates v. Bassett, 60 Vt. 530, 1 L.
43; Pawlet v. Clark, 9 Cranch (U. S.), R. A. 66. As to the right to lease a
292; Dartmouth College v. Wood- part of a public building, see State
ward, 4 Wheat. (U. S.) 518; Mont- v. Hart (Ind.), 33 L. R. A. 118, note,
pelier v. East Montpelier, 29 Vt 12; BMt Hope Cemetery v. Boston, 158
People v. Ingersoll, 58 N. Y. 1; Phila- Mass. 509.
§ 14ri.] PA&TICLT.AR POWEKi. 135
which in a certain sense, and to a certain extent, is held for
the benefit of the public, but in other respects is held more
like the property of a private corporation. ^Notably among
these may be mentioned its system of water-works, its system
of parks, its markets, its hospital and its library. In establish-
ing all these the city has not acted strictly as an agent of the
state government for the accomplishment of general public or
political purposes, but with special reference to the benefit of
its own inhabitants. If its cemetery is under legislative con-
trol, so that a transfer of it without compensation can be re-
quired, it is not easy to see why the other properties men-
tioned are not also; and all the other cities and towns which
own cemeteries or other properties of the kinds mentioned
might be under a similar liability." l
§ 144. Wharves and ferries. — A city cannot carry on a pub-
lic wharf or ferry and charge tolls and fees for its use with-
out special authorization by the legislature.2 "It is a power of
a special and extra-municipal nature."* The right to erect and
regulate wharves and appoint wharfingers includes the right
to impose and collect toll;4 but the right to erect, repair and
regulate wharves, with fixed rates of wharfage, does not author-
ize a city to lease a wharf or to farm out its revenues and
authorize the lessee to fix the rates of wharfage. "Where a
street extending to navigable water is dedicated to public use,
the corporation may extend it into the water by the construc-
tion of a wharf, without reference to the title of the land under
water.5 The rights which a municipality acquire under the
grant of a right to build wharves and charge wharfage are
1 That parks are in the nature of N. Y. 419; Snyder v. Rockport, 6 Ind.
private property, see People v. De- 237.
troit, 28 Mich. 228; State v.Schweick, .'Dillon, Mun. Corp., § 67; The
19 So. Rep. 97. Contra, Davos v. Wharf Case, 3 Bland Ch.361; The
Portland Water Com., 14 Oreg. 98. Empire State, 1 Newb. Adm. 541.
See g 33, supra, * Municipality v. Pease, 2 La. Ann.
- Webb v. Demopolis, 95 Ala. 116, 21 538; Muscatine v. Hershey, 18 Iowa,
L. R. A. 62; The Geneva, Am. Law 39. As to the proper uses of a public
Reg., Sept., 1883, annotated; Railroad wharf, see Illinois v. Canal Co., 2
Co. v. Ellerman, 105 U. S. 166; Turner Dili (C. C.) 70.
v. People's Ferry, 21 Fed. Rep. 90; ^Keokuk v. Keokuk P. Co., 45
Williams v. New York Ferry Co., 105 Iowa, 196.
136 POWERS OF PUBLIC CORPORATIONS. [§ 145.
held to be private rights in so far that it cannot be required
to permit the use of its wharf without compensation,1 and the
same principle has been applied to a ferry franchise.2
§ 145. Water and lights. — The power to light the streets
and public places of a municipality is commonly conferred upon
the corporation by the charter.3 The city generally enters
into a contract with an individual or corporation for a supply
of water, gas or electric light for a certain period. When not
restricted by some provision of the charter the time may be
determined by the city council, subject to the limitation of rea-
sonableness.
The power to grant franchises has been already considered.*
When such grants are made, the grantor may reserve a large
power of regulation and control. Under such a reservation
the municipality may regulate the rates and charges which
may legally be made by public service corporations. Thus,
the state may determine the rates which may be charged by
a railway corporation. But the rates fixed by a state rail-
way commission must be reasonable, and this is a judicial and
not a legislative question.5 The same principle governs .the
action of a municipality, when acting under proper authority,
in determining the rates which may be charged by franchised
companies for water, gas, electric light and telephone service.
But the courts will not permit the property to be confiscated
under the pretense of regulating rates.6 The municipality
1 New Orleans M. & T. Co. v. Eller- igation of the river." Cannon v.
man, 105 U. S. 166. The court said: New Orleans, 20 Wall. (U. S.) 577.
"Whatever powers the municipal 2 Benson v. Mayor, 10 Barb. (N. Y.)
body rightfully enjoys over the sub- 223. Contra, Rober v. McWhorter,
ject are derived from the legislature. 17 Va. 214.
They are merely administrative and 'Newport v. Newport Gas Co., 84
may be revoked at any time, not Ky. 468; Minneapolis Gas Light Co.
touching, of course, any property of v. Minneapolis, 36 Minn. 159.
the city actually acquired in the 4§ 85, supra. See, also, Andrews
course of administrations. The sole v. Nat.F.& P. Works (C.C. A.), 61 Fed.
ground of the right of the city to Rep. 782, and Westerly Water-works
collect wharfage at all is that it is a Co. v. Westerly, 80 Fed. Rep. 611.
reasonable compensation which it is 6 Chicago, M. & St. P. Ry. Co. v.
allowed by law to charge for the Minnesota, 134 U. S. 418.
actual use of the structures pro- 6 State v. Cincinnati Gas Co., 18
vided at its expense for the conven- Ohio St. 262; Norwich Gas Co. v.
lence of vessels engaged in the nav- Gas Co., 25 Conn. 19; State v. Gas
§ 146.] PAETICCLAK POWEfiS. 137
must be able to show legislative autnority to regulate rates,
when the power is not expressly reserved at the time the fran-
chise is granted. Authority to light the streets and furnish
the inhabitants with gas and other light and " to regulate and
control the use thereof " will not authorize an ordinance fixing
the price at which gas shall be furnished the city and its in-
habitants.1 To permit a city which is itself a large user of gas,
and which has not reserved the power, to determine the price
which the company shall receive for it, seems contrary to ac-
cepted principles.2
§ 146. Power to own and operate gas, light and water plants.
It has been held 'that municipal corporations have inherent
power to provide for lighting the streets, alleys and public
places. If so, " unless their discretion is controlled by some
express statutory restriction, they may in their discretion pro-
vide that form of light which is best suited to the wants and
financial condition of the corporation. . . . -We see no good
reason why they may not also, without statutory authority,
provide and maintain the necessary plant to generate and sup-
ply the electricity required. Possessing power to do the light-
ing carries with it incidentally the further power to procure
or furnish whatever is necessary for the production and dissemi-
nation of the light. . . . We can see no good reason why
it may not also at the same time furnish it to the inhabitants
to light their residences and places of business. To do so is, in
our opinion, a legitimate exercise of the police power for the
preservation of property and health." But express authority
is generally required.4 There is no question of the power of
Co., 29 Wis. 452; Sherwood v. C. W. prices, Winchester &L.T.Co.v. Crox-
Co., 90 Ca 1. 635 ; State v. Gas Light Co., ton, 98 Ky. 739, 33 L, R. A. 177. As to
102 Mo. 472; Manhattan Trust Co. manner of assessing and collecting
v. Dayton Nat Gas Co., 55 Fed. Rep. water rates, see Kelsey v. Marquette
181. Fire & Water Com'rs (Mich., 1897), 71
1 Tacoma G. & E. L. Co. v. Tacoma, N. W. Rep. 589.
14 Wash. 288,44 Pac. Rep. 655; St ' Crawfordsville v. Brader, 130 Ind.
Louis v. Bell TeL Co., 96 Ma 623, 2 149; 14 L. R, A. 268 (1891). The con-
It R. A. 278; In re Prior, 55 Kan. trary rule is announced in Spauld-
724, 29 L. R. A. 398. ing v. Peabody, 153 Mass. 129, 10 L.
2 Foot & Everett, Incorporated R. A. 357.
Companies, I, p. 211. See note on leg- * Dillon, Mun. Corp., §§ 146, 561.
islative power to fix tolls, rates and
138 POWEKS OF PUBLIC OOKPOKATIONS. [§ 14:6.
the legislature to authorize cities to purchase or construct such
plants.1 It is simply a question of public policy. In Massa-
chusetts it is held that the general law confers no power upon
towns to maintain electric light plants.2
Power to provide for " lighting the streets," s or " to provide
the city with water," 4 will authorize a city to construct its own
plant for that purpose. The erection of an electric light plant
to supply a city with light for use in the streets and public
places and in the homes and places of business of the inhabit-
ants is a municipal purpose for which bonds may be issued.8
There is authority to the effect that under power to light the
city a municipality can purchase and operate its own plant,
but cannot furnish its inhabitants with light, because this would
be engaging in a private enterprise.6 But, as has been said,7
for a city to meet the demand for wholesome water " is to per-
form a public act and confer a public blessing. . . . It is
not strictly a governmental or municipal function which every
municipality is under obligation to assume and perform, but it
is very closely akin to it, and should always be recognized as
within the scope of its authority unless excluded by some posi-
tive law. ... It cannot be said that the city in doing so
is engaging in a private enterprise or performing a municipal
1 Mitchell v. Negaunee (Mich., 1897), 8Parkersburg Gas Co. v. Parkers-
71 N. W. Rep. 646; Opinion of Jus- burg, 30 W. Va. 435; Saginaw G. L.
tices, 150 Mass. 392, 8 L. R. A. 487; Co. v. Saginaw, 28 Fed. Rep. 252;
Linn v. Chambersburg, 160 Mass. 511, Crawfordsville v. Braden, 130 Ind.
25 L. R. A. 217; Peabody v. West- 149, 28 N. E. Rep. 849, 14 L. R. A.
erly Water Works Co. (R. L, 1897), 37 268.
Atl. Rep. 807. Supplying the inhab- 4 Atlantic City W. W. v. Atlantic
itants with light and water is a mu- City, 39 N. J. Eq. 367: Hall v. Hough-
nicipal function which may prop- ton, 8 Mich. 451 ; Smith v. Mayor, 88
erly be delegated to a municipality. Tenn. 464; Putnam v. Grand Rapids,
Brenham v. Brenham Water Co., 67 58 Mich. 417.
Tex. 542; Opinion of Justices, 150 5 Jacksonville v. Electric Light
Mass. 392, 8 L. R. A. 487; Tacoma v. Co., 36 Fla. 229, 30 L. R A. 540.
Tacoma L. & W. Co.. 15 Wash. 499; « Maudlin v. Greenville, 33 a C. 1,
Long v. Duluth, 48 Minn. 280, 51 N. 8 L. R. A. 291.
W. Rep. 913; State v. Hamilton, 47 ' Smith v. Nashville, 88 Tenn. 464,
Ohio St. 52, 23 N. E. Rep. 935. As to 7 L. R. A. 469; Fire Ins, Co. v. Keese-
lighting public buildings, see St. ville, 148 N.Y. 46; Jacksonville Elec.
Paul G. L. Co. v. McCardy, 62 Minn. L. Co. v. Jacksonville (Fla.), 30 L. R.
509. A. 540; Thompson-Houston Elec. L.
2Spaulding v. Peabody, 153 Mass. Co. v. Newton, 42 Fed. Rep. 72a
129, 26 N. E. Rep. 421.
§ 147.] PARTICULAR POWEES. 139
function for a private end." A city with authority to furnish
water for its inhabitants has no authority to carry water out-
side of its limits for the purpose of supplying the inhabitants
of another municipality.1 But when a town succeeds to the
business of a water company under a statute which authorizes
it to furnish water to any person or corporation within its
limits, it may deliver water to the corporation within its limits,
although a part of the water is used beyond the city limits and
in another municipal corporation.2
§ 147. Nature of the power. — It has been generally held that
when a municipal corporation engages in the business of man-
ufacturing gas and supplying and selling gas and water to its
inhabitants it is engaged in a business of a private nature.3
But the ]STew York court of appeals has recently held 4 that
such power is granted to municipalities for public use, and that
as a result the corporation is not liable for damages resulting
from nonuser or misuser of the power. The action was brought
by an insurance company against the village for damages al-
leged to have been caused by the failure of the village to keep
the city water-works system in proper condition. The court,
after stating the distinction between the public and private
powers which are ordinarily conferred upon municipal corpo-
rations, said: "When we find that the power conferred has
relation to public purposes and is for the public good, it is to
be classified as governmental in its nature, and it appertains
to the corporation in its political character. When it relates
to the accomplishment of private corporate purposes in which
the public is indirectly concerned, it is private in its nature,
and the municipal corporation in respect to its exercise is
regarded as a legal individual. In the former case the corpo-
ration is exempt from all liability whether for nonuser or mis-
user; while in the latter case it may be held to that degree of
1 Haupt's Appeal, 125 Pa.- St. 211, eron, 33 Ohio St. 336; Helena ConsoL
3 L. R. A. 536. Water Co. v. Steele (Mont., 1897), 49
2 Lawrence v. Meecham, 166 Mass. Pac. Rep. 382, 37 L. R A. 412; West-
206, 44 N. E. Rep. 247. ern Sav. Fund Soc. v. Philadelphia,
3 Illinois Trust & Sav. Bank v. Ar- 31 Pa. St 183, 72 Am. Dec. 730. See
kansas City, 76 Fed. Rep. 271; Bailey ?§ 22, 43.
v. New York, 3 Hill (N. Y.), 531, 38 *Fire Ins. Co. v. Village of Keese-
Am. Dec. 669; Cincinnati v. Cam- ville, 148 N. Y. 46.
140 POWEES OF PUBLIC CORPORATIONS. [§ 148.
responsibility which would attach to an ordinary private cor-
poration." The fact that water rents were paid by the inhab-
itants was held not to show that the corporation was engaged
in private business. " The imposition of water rents is but a
mode of taxation and a part of the general scheme for raising
revenue with which to cany on the work of government. If
profits accrue over the expense of maintaining the system, they
go to benefit the public by lessening the general burden of
taxation. . . . There is nothing connected with the work
which is not of a governmental and public nature. It is in no
sense a private business; and the authority to construct the
work was given it by the legislature, not at its own particular
instance or application, but because it was one of the political
divisions of the state and as such was entitled to exercise it.
. . . No interest was designed to be subserved other than
that of adding to the powers of a community carrying on a
local government."
§ 148. The acquisition of the plant. — Without express legis-
lative authority a municipal corporation cannot grant an exclu-
sive franchise to a company which will prevent the corporation
from establishing a plant for the purpose of supplying itself
with gas or water.1 Under certain circumstances the franchise
of a water company may be exclusive as to other companies,
and yet not prevent the city from supplying water by works
constructed by itself, although it may thus impair the value of
the water company's franchise.2 The reservation in the grant
of a franchise to a water company of a right to purchase the
plant at any time after the lapse of a stated period imposes no
duty upon the town to purchase, and does not justify the infer-
ence that the city can only provide itself with water- works by
purchasing from the company.3 It has recently been held that
a statute allowing a city to acquire a water plant only by pur-
chase from private parties to whom it has granted a franchise
or with whom it has entered into a contract is in violation of
i Long v. City of Duluth, 49 Minn. Co. v. Estrada (Cal., 1897), 48 Pac. Rep.
280. 1075.
2Lehigh Water Co.'s Appeal, 102 3 Long v. Duluth, 49 Minn. 280;
Pa. St. 515. An exclusive statutory Syracuse Water Co. v. Syracuse, llfl
franchise to provide a city with N. Y. 167, 22 N. E. Rep. 381.
water is assignable. San Luis Water
^ 14:9. I TAETICULAK POWERS. 141
O -1
a constitutional provision prohibiting the legislature from levy-
ing a tax upon the people of a municipality for a municipal
purpose without their consent.1 A city may condemn the plant
of a private gas or water company under the power of eminent
domain.2
§ 149. Contracts betu'een municipality and franchise comr
panics. — Until within recent times it was customary for public
corporations to enter into contracts with persons or corporations
for a supply of water or lights for a term of years. Exclusive
franchises were often granted to corporations. In some in-
stances they entered into contracts with the companies, whereby
the municipality deprived itself of the power to construct plants
for the purpose of supplying itself and its inhabitants. In
other cases the contract reserved to the city the right to pur-
chase the plant of the company at a fixed valuation at the end
of a definite period, or provided that the plant should become
the property of the city at the termination of the franchise by
lapse of time. The present tendency is toward the construc-
tion or acquisition of such plants by municipalities. Cities
now commonly own and operate their own water-works, and
in many cases manufacture and sell gas and electric light to
the inhabitants. In acquiring the plants the municipality must
not violate the contracts it has made with the persons to whom
it has granted franchises. In Pennsylvania it is held that when
a borough has contracted with a water company for a supply
of water and reserved the right to purchase the plant after
twenty years, and the company has laid its pipes and mains in
the streets, it cannot during that period erect and maintain a
system of water-works of its own and thus depreciate the value
of the company's plant.1
If a valid contract is created it will be protected and en-
forced. If a city is engaged in a business of a private nature
when it manufactures and sells water, gas or light to its in-
1 Helena Consolidated Water Co. v. 643, 34 L. R A. 567; Wilson v. Bor-
Steele (Mont., 1897), 49 Pac. Rep. 382, ougti of Rochester, 180 Pa. St. 509.
37 L. R. A. 412. As to power to make a contract ex-
2 In re Brooklyn, 143 N. Y. 596, 26 eluding itself from competition with
L. R. A. 271. a water company for a term of years,
3 Metzger v. Beaver Falls, 178 Pa. see Westerly Water Works Co. v.
St. 1; White v. Meadville, 177 Pa. St. Westerly, 80 Fed. Rep. 61L
142
POWERS OF PUBLIC CORPORATIONS.
[§
habitants, its transactions are governed by the principles of
private law. But the tendency illustrated by recent decisions
to hold that power to supply water and lights is a govern-
mental power may lead to a different conclusion. A public
corporation cannot by contract deprive itself of its legislative
power. All attempts to do so are ineffectual and may be dis-
regarded.
Bat the legislative grant to a corporation or individual of
special privileges may be a contract when the language is so
explicit as to require such a construction. If, however, one of
the conditions of the grant be that the grantor may revoke
or alter it, there is no violation of the contract when the grant
is revoked or altered.1 Such grants will be strictly construed.
1 Hamilton Gas Light Co. v. Ham-
ilton City, 146 U. S. 258. This case
was decided under the Ohio statute.
One section provided that any city
might erect gas works when it
deemed it expedient. Another sec-
tion provided that on the failure of
a city gas company to extend the
lines, make connections and perform
certain duties, the charter of the
company might be declared forfeited
and the city be at liberty to estab-
lish and maintain gas works of its
own. In State v. City of Hamilton,
47 Ohio St. 52, it was held that the
city might erect gas works without
reference to the failure of an exist-
ing gas company to perform its
duties. The decision was affirmed
in Hamilton Gas Light Co. v. Ham-
ilton City, supra. The court said:
"The contention is that such legis-
lation [the first section above re-
ferred to] is within the constitu-
tional inhibition of state laws im-
pairing the obligation of contracts.
This view is inadmissible. The stat-
utes in force when the plaintiff
became a corporation did not com-
pel the city to use the gas light
furnished by the plaintiff. The city
was empowered to contract with
the plaintiff for lighting streets,
lanes, squares and public places
within its limits, but it was under
no legal obligation to make a con-
tract of that character, although it
could regulate by ordinance the
price to be charged for gas light to
be supplied by the plaintiff and used
by the city or its inhabitants. It
may be that the stockholders of the
plaintiff supposed, at the time it be-
came incorporated and when they
made their original investment, that
the city would never do what evi-
dently is contemplated by the ordi-
nance of 1889. And it may be that
the erection and maintenance of gas
works by the city at the public ex-
pense, and in competition with the
plaintiff, will ultimately impair, if
not destroy, the value of the plaint-
iff's works for the purposes for which
they were established. But such
consideration cannot control the
legal rights of the parties. As said
by this court in Curtis v. Whitney,
13 Wall. 68, 70: 'Nor does every
statute which affects the value of a
contract impair its obligation. It is
one of the contingencies to which
parties look now in making a large
class of contracts, that they may be
affected in many ways by state and
national legislation.' "
§ 149.] PAETICULAE POWEBS. 14:3
" "We are forbidden," said Mr. Justice Harlan,1 " to hold that
a grant, under legislative authority, of an exclusive privilege
for a term of years, of supplying a municipal corporation and
its people with water drawn by means of a system of water-
works from a particular stream of water, prevents the state
from granting to other persons the privilege of supplying, dur-
ing the same period, the same corporation and people with
water drawn in like manner from a different stream or river."
i Stein T. Bienrille Water Supply Co, 141 U. S. 67.
CHAPTER IX.
MUNICIPAL SECURITIES.
L WARRANTS AND ORDERS.
§ 150. Power to issue.
151. Form.
152. Negotiability.
153. Effect of acceptance.
154 Presentment and demand.
155. Payable out of particular
fund.
156. Rights of indorser.
157. Defenses.
IL MUNICIPAL BONDS.
158. Power of public quasi-corpo-
rationa
159. Power of municipal corpora-
tions.
160. Ratification of illegal bonds.
161. Liability for money received.
162. Right to restrain issue of ille-
gal bonds.
O. PURPOSES FOR WHICH BONDS MAY
BE ISSUED.
163. Must be a public purpose.
164. What are public purposes.
165. Railways.
166. Private purposea
167. How determined.
6. CONDITIONS PRECEDENT TO LEGAL
ISSUE.
§ 168. In general
169. Consent of the people.
170. Manner of obtaining consent
171. Majority of votera
172. Location and completion of
road.
c. ESTOPPEL.
173. When estoppel arisea
174. Authority of officers.
175. Estoppel by conduct; illustra-
tions.
176. By judgment.
d RIGHTS OF BONA FIDE HOLDERS.
177. Who are such.
178. Defenses available against a
bonafide holder.
179. Recitals in bonda
180. Effect of recitals — continued.
181. Authority of officials to make
recitala
182. Recital that bonds have been
issued "in conformity to
law."
183. Excessive issues.
L WARRANTS AND ORDERS.
§ 150. Power to issue. — Counties, towns and municipal cor-
porations have implied authority to issue instruments in the
form of vouchers for money due, certificates of indebtedness
for services rendered or property furnished, or orders by one
officer of the municipality upon another. Such instruments
are necessary and proper in carrying on the administration
and anticipating the payment of taxes.1 But in order to be
1 Mayor v. Ray, 19 Wall 477; Shawnee Co. Com'rs v. Carter, 2 Kan. 115.
§§ 151, 152.] MUNICIPAL SECUKITIES. 145
valid, such warrants must be issued for a legal purpose and for
the amount actually due. They cannot be discounted.1
§ 151. Form. — Warrants are commonly in the form of an
order drawn by one officer upon another, by which the drawer
authorizes the payment of a certain sum of money to the payee.
Statutes prescribing the form are commonly held to be direct-
ory.2
§ 152. Negotiability. — In a few cases it has been held that
warrants, when negotiable in form, have all the attributes of
negotiable paper,3 but the overwhelming weight of authority
is to the effect that such instruments are not commercial paper
within the meaning of the law merchant, and that the pur-
chaser takes subject to any defenses which were available be-
tween the original parties.4 "Although negotiable instru-
ments," says Mr. Justice Gray,5 "they belong to a peculiar
class of such instruments, being made by a municipal corpora-
tion, and having no validity unless issued for a purpose au-
thorized by law. ... To invest such documents with the
character and incidents of commercial paper, so as to render
them in the hands of lonafide holders absolute obligations to
pay, is an abuse of their true character and purpose." With
reference to the power to issue such obligations Mr. Justice
Miller says : 6 "It seems to us to be a question quite distinct
from that of incurring indebtedness for improvements actually
authorized and undertaken, the justice and validity of which
lErskine v. Steele Co., 4 N. D. 339, 478; Claiborne Co. v. Brooks, 111 U.
28 L. R. A. 645; Foster v. Coleman, S. 400; Emery v. Maria ville, 50 Me.
10 Cal. 278; Bauer v. Franklin Co., 315; Sturtevant v. Liberty, 46 Me.
51 Mo. 205; Arnott v. Spokane, 6 457;Shirkv.PulaskiCo.,4 DilL(U. S.)
Wash. 442. 209; Clark v. Des Moines, -19 Iowa,
» Burton v. Harvey Co. Bank, 28 199; People v. Johnson, 100 I1L 537,
Kan. 390. 39 Am. Rep. 63; Goodnow v. Ramsey
'Kelley v. Mayor, 4 Hill (N. Y.), Co., 11 Minn. 31 (GiL 12); School Dis-
265; Crawford Co. v. Wilson. 7 Ark. trict v. Stough, 4 Neb. 357; Hubbard
214; Hancock v. Chicot Co., 32 Ark. v. Town of Linden, 48 Wis. 674; Eaton
575. See Fairchild v. Ogdensburgh, v. Berlin, 49 N. H. 219; Hyde v. Frank-
etc. Ry. Co., 15 N. Y. 337; Garvin v. lin'Co., 27 Vt 185; Erskine v. Steele
Wiswell, 83 I1L 215. Co., 4 N. D. 339, 28 L. R. A. 645.
4 Beardsley v. Steinberg (Mont.), 49 5 District of Columbia v. Cornell,
Pac. Rep. 499 (1897); Police Jury v. 130 U. S. 655.
Britton, 15 Wall. (U. S.) 566; Mayor 6 Police Jury v. Britton, 15 Wall
of Nashville v. Ray, 19 Wall (U. S.) (U. S.) 566.
10
146 POWERS OF PUBLIC CORPORATIONS. [§§ 153, 154.
may always be inquired into. It is a power which ought not
to be implied from the mere authority to make such improve-
ments. It is one thing for county or parish trustees to have
the power to incur obligations for work actually done in behalf
of the county or parish and to give proper vouchers therefor,
and a totally different thing to have the power of issuing un-
impeachable paper obligations which may be multiplied to an
indefinite extent. It would be an anomaly justly to be depre-
cated for our limited territorial boards, charged with certain
objects of local administration, to become the fountains of com-
mercial issue capable of floating about in the commercial whirl-
pool of our great cities."
§ 153. Effect of acceptance. — A creditor is not obliged to
accept a warrant in payment of his claim against a corpora-
tion, but if he does accept it and parts with it he loses his
right of action on the original debt.1 But the original holder
of an unpaid or dishonored warrant may abandon it and sue
on the original claim.2
§ 154. Presentment and demand. — In the absence of any
provision to the contrary, municipal obligations are payable at
the municipal treasury.3 Until demand there is no default.4
It is hence the duty of the holder of such instruments to pre-
sent them to the proper officer for payment before bringing
suit;8 and the fact of presentment, demand and non-payment,
or facts which will excuse the same, must be alleged and proven.
A warrant is due immediately upon presentation and demand
although there is no money in the treasury with which to pay
it.8 In a leading case it was said : " There is nothing in the
charter which favors the notion that the liability of the city
1 Dalrymple v. Whitingham, 26 Vt. < Pekin v. Reynolds, 31 III 529, 28
347. Contra, Lyell v. Lapeer Co., 6 Am. Dec. 244; Dalrymple v. Whit-
McLean (C. C.), 446. ingham, 26 Vt. 345; Central v. Wil-
2 Paddock v. Symonds, 11 Barb, coxen, 8 Colo. 566; East Union Tp.
(N. Y.) 117; Dyer v. Covington Tp., v. Ryan, 86 Pa. St. 459.
19 Pa. St. 200; Varner v. Noble- 6Varner v. Nobleborough, 2 Me.
borough, 2 Me. 121, 11 Am. Dec. 48. 126, 11 Am. Dec. 48.
In Allison v. Juniata Co., 50 Pa. St. 6 International Bank v. Franklin
851, it was held that the action must Co., 65 Ma 105, 27 Am. Rep. 241;
be upou the original claim. Terry v. Milwaukee, 15 Wis. 543;
8 Friend v. Pittsburgh, 131 Pa. St. Mills Co. Nat. Bank v. Mills Co., 67
805, 6 L. R. A, 636. Iowa, 697.
§§ 155-157.] MUNICIPAL SECURITIES. 14:7
for road debts is conditioned upon the existence of road funds
in the treasury. For road debts the city is absolutely and un-
conditionally liable as for other debts. This liability cannot
be controlled or varied by the form in which the warrant may
be drawn or worded by the municipal officers." *
§ 155. Payable out of a particular fund. — When the law
requires that a warrant shall be drawn on a specified fund it
cannot be made a general charge upon the treasury. The
holder of such warrant must look to the particular fund for
payment.2 A warrant containing the words " Charge the same
to the account of Union Avenue " is payable out of a particu-
lar fund.* A warrant containing a clause, "payable out of
any money not otherwise appropriated,"4 or "it being for the
appropriate part of the surplus revenue," 5 is payable uncon-
ditionally. So a warrant payable "for jail purposes."6 A
distinction must be observed between orders drawn payable
out of a particular fund and those which are simply charge-
able to a particular account.7
§ 156. Rights ofindorser. — The title to a warrant passes by
indorsement, and the assignee may sue in his own name,8 al-
though he stands in no better position than did the original
holder.9 He must, however, show that the consideration for the
warrant was such an obligation as the corporation had author-
ity to incur.10
§ 157. Defenses. — "When payment of a warrant is made in
good faith the corporation is released from further liability."
If re-issued after being paid it is void in the hands of an inno-
cent purchaser.12 But there must be some act evidencing an
i Clark v. Des Moines, 19 Iowa, 199. 8Kelley v. Mayor, 4 Hill (N. Y.),
* Campbell v. Polk Co., 76 Ma 57; 263; Great Falls Bank v. Farming-
Boro v. Phillips Co., 4 Dill. (U. S. ton, 41 N.H. 32; Clark v. Des Moines,
C. C.) 216; M'Cullough v. Mayor, 23 19 Iowa, 199.
Wend. (N. Y.) 458; People v. Wood, ^Matthis v. Town of Cameron, 62
71 N. Y. 871. Ma 504
8 Lake v. Williamsburgh, 4 Denio 10 School District v. Thompson, 5
(N. Y.), 520. Minn. 280; Goodnow v. Ramsey Ca,
* Campbell v. Polk Co., 3 Iowa, 467. 11 Minn. 31 (Gil 12). See Polk v. Tu-
'Pease v. Cornish, 19 Me. 191. nica, 52 Miss. 422.
6 Montague v. Horton, 12 Wis. 668. " Sweet v. Carver Ca, 16 Minn. 106.
7 Clark v. Des Moines, 19 Iowa, 199; n Board of Commissioners v. Stand-
Pease v. Cornish, 19 Me. 191. ley (Colo.), 49 Pac. Rep. 23 (1897);
148 POWEKS OF PUBLIC COKPOKATIONS. [§ 158.
intent to cancel the warrant. Thus, the mere receiving of a
warrant in payment of taxes is not of itself payment.1
Want of authority is always a defense to an action on a war-
rant.2 Although "a warrant signed by the proper officer prima
facie imports validity and a subsisting cause of action, it is
always competent for a municipal corporation, even after the
issuance of a warrant on the treasury, to set -up the defense of
ultra vires." * So the authority of the officer issuing the war-
rant is always open to inquiry.4 The statute of limitations
runs from the time of demand and refusal.5 Where there is
want of power to borrow money there can be no recovery on
warrants issued therefor, although the money received was
used for a purpose for which the corporation had power to con-
tract a debt.6
II. MUNICIPAL BONDS.
§ 158. Power of public quasi-corporations. — Legislative au-
thority is necessary to authorize counties, townships and school
districts to borrow money and issue negotiable bonds, or to
issue negotiable bonds in aid of any public enterprise. It must
be clearly conferred but may be implied. Thus, a county may
issue bonds under express power to make a donation of " money
or other securities " for the benefit of a state insane asylum.7
Such bodies exist for purposes of local and police regulation,
and having the power to levy taxes to defray all public charges
created, they have no implied power to make commercial paper
of any kind unless it is clearly implied from some express
power which cannot be fairly exercised without it.8 It is a
Chemung Bank v. Chemung Co., 5 Neb. 373; Leech v. Wilson Co., 68
Denio (N. Y.), 517. Tex. 353.
i Wiley v. Greenfield, 30 Me. 452. 6 Allen v. Intendant of La Fayette,
2Sault Ste. Marie v. Van Dusen, 89 Ala. 641, 9 L. R. A. 497.
40 Mich. 429; Jefferson Co. v. Ar- 'Lund v. Chippewa Co., 93 Wis.
righi, 54 Miss. 668; Nash v. St Paul, 640, 67 N. W. Rep. 927, 34 L, R. A.
11 Minn. 174 (Gil. 110). 131. See, also, as to implied power,
3Cheeney v. Town of Brookfield, Carter Co. v. Linton, 120 U..S. 517.
60 Mo. 53; Thomas v. Richmond, 12 Power to issue bonds payable in gold
Wall (U. S.) 349; Salamanca Tp. v. coin is not conferred on a county by
Jasper Co. Bank, 22 Kan. 696. a statute not prescribing the kind
4 Taft v. Pittsford, 28 Vt 286; First of money in which the bonds shall
Nat Bank v. Saratoga Co., 106 N. Y. be paid. Burnett v. Maloney, 97
488. Tenn. 697, 34 L. R. A. 541.
5 Clark v. Iowa City, 20 Wall SGoodnow v. Ramsey Co., 11 Minn.
(U. S.) 583; Brewer v. Otoe Co., 1 31; Board of Education v. Blodgett,
§ 159.]
MUNICIPAL SECURITIES.
14:9
power distinct from that of incurring indebtedness for improve-
ments actually authorized; as it is one thing to have the power
to incur a debt and to give proper vouchers therefor, and a
totally different thing to have the power of issuing obligations
unimpeachable in the hands of third persons.1 Thus, the
power to build a court-house does not include the power to
issue municipal bonds in payment therefor.2 But upon this
last proposition the cases are not uniform, as it has been held
that the power to contract debts carries with it the power to
agree with creditors as to the time and manner of payment
and the issue of negotiable bonds.*
§ 159. Pwver of municipal corporations. — The powers of
cities and incorporated towns are somewhat more liberally
construed, but notwithstanding this fact the rule is that the
power to borrow money and to issue negotiable paper does not
belong to such a corporation as an incident of its creation.4 It
is held, however, that express power to borrow money carries
with it implied power to issue negotiable bonds.4 Power to
155 I1L 441, 31 L. R. A. 70; Police
Jury v. Britton, 15 Wall (U. S.) 566.
The mere failure to provide means
for paying the bonds does not ren-
der the enabling statute invalid.
Stockton v. Powell, 29 Fla. 1, 15 L.
R A. 42.
1 Claiborne Co. v. Brooks, 111 U. S.
400.
2 Hill v. Memphis, 134 U. & 198;
Young v. Clarendon Tp., 132 U. S.
340; Kelley v. Town of Milan, 127
U. S. 139; Dent v. Cook, 45 Ga. 323;
Knapp v. Hoboken, 39 N. J. L 394;
Hamlin v. MeadviUe, 6 Neb. 227;
Goodnow v. Ramsey Co., 11 Minn. 31
(GiL 12). In Rushville Gas L. Co. v.
City of Rushville, 121 Ind. 206, 6 L.
R. A. 315, the court said with refer-
ence to public corporations other
than school districts, " issuing bonds
to pay for property purchased is a
very different thing from issuing
bonds to obtain money."
1 "Williamsport v. Commonwealth,
84 Pa. St. 487, 24 Am. Rep. 208; First
Municipality v. McDonough, 2 Rob.
(La,) 244; Bank of Chillicothe v.
Mayor, 7 Ohio (pt 2), 31; Douglass
v. Virginia City, 5 Nev. 122; Rich-
mond v. McGirr, 78 Ind. 192; Holmes
v. Shreeveport, 31 Fed. Rep. lia
4 Mayor v. Ray, 19 WalL (U. S.) 468;
Merrill v. Monticello, 138 U. S. 673;
Hill v. Memphis, 134 U. & 198; Hew-
itt v. School District, 94 HL 528.
5Comanche Co. v. Lewis, 133 U. S.
198; Seybert v. Pittsburgh, 1 WalL
(U. S.) 272; Commonwealth v. Pitts-
burgh, 34 Pa. St 496; Evansville v.
Evansville, etc. Ry. Co., 15 Ind. 395;
Galena v. Corwith, 48 EL 423, 93 Am.
Dec. 557; De Vose v. Richmond, 18
Gratt 338, 98 Am. Dec. 646. See
Merrill v. Monticello, 138 U. & 673;
Brenham v. German American Bank,
144 U. S. 191, and cases cited; Farr
v. City of Grand Rapids (Mich., 1897),
70 N. W. Rep. 411. Power to issue
bonds to take up floating indebted-
ness, see Morris v. Taylor (Oreg., 1897),
49 Pac. Rep. 2a
150 POWERS OF PUBLIC CORPORATIONS. [§ 160.
issue bonds will authorize their issue in the usual form of nego-
tiable bonds payable to bearer.1 It is not, however, implied
from express authority to subscribe for stock in a railway cor-
poration,2 or from a grant of power to appropriate money to
aid in the construction of a railroad, with authority to levy
a tax to provide the money to meet the appropriation.3 It is
well settled that a public corporation cannot, -without express
authority, issue its negotiable bonds in aid of a railway corpora-
tion.4
§ 160. Ratification of illegal londs. — An ultra vires act can-
not be ratified by any act of the corporation.5 Thus, where a
corporation, in pursuance of a compromise agreement, consented
to the entry of a decree in favor of the validity of certain bonds,
the court said : " The act of the mayor in signing that agree-
ment could give no validity to the bonds if they had none at
the time the agreement was made. The want of authority to
issue them extended to a want of authority to declare valid.
The mayor had no such authority. The decree of the court
was based solely on the declaration of the mayor, in the agree-
ment, that the bonds were valid ; and that declaration was of no
more effect than the declaration of the mayor in the bill in
chancery that the bonds were invalid. The adjudication in
the decree cannot, under the circumstances, be set up as a judi-
cial determination of the validity of the bonds.8 This was not
1 West Plains Tp. v. Sage, 32 IT. S. sippi, etc. R. R. Co. v. Camden, 23
App. 725, 69 Fed. Rep. 943; Austin v. Ark. 300; Clay v. Nicholas Co., 4
Nalle, 85 Tex. 520. Bush (Ky.), 154; Williamson v. Keo-
2 Hill v. Memphis, 134 U. S. 198; kuk, 44 Iowa, 88; Hawkins v. Carroll
Kelly v. Milan, 127 U. S. 139; Norton Co., 50 Miss. 735; Reineman v. Cov-
v. Dyersburg, 127 U. S. 160; Clai- ington,etc. Ry. Co., 7 Neb. 310; Penn-
borne Co. v. Brooks, 111 U. S. 400; sylvania Ry. Co. v. Philadelphia, 47
Milan v. Tennessee Cent. Ry. Co., 11 Pa. St. 189; Fisk v. Kenosha, 26 Wis.
Lea (Tenn.), 830. 23; New Orleans, etc. Ry. Co. v. Dunn,
» Concord v. Robinson, 121 U. S. 51 Ala. 128.
165, and cases cited in preceding 5 Ottawa v. Carey, 108 U. S. 110;
note. Lewis v. Shreveport, 108 U. S. 282;
« Young v. Clarendon Tp., 132 U.S. Daviess Co. v. Dickinson, 117 U.S.
840: Brenham v. German American 657; Mills v. Gleason, 11 Wis. 470, 78
Bank, 144 U. S. 173; Claiborne Co. v. Am. Dec. 721; Blen v. Bear River,
Brooks, 111 U. S. 400; Town of Co- etc. Co., 20 Cal. 602, 81 Am. Dec. 132.
loma v. Eaves, 92 U. S. 484; Pitzman 6 Russell v. Place, 94 U. S. 60G; Man-
v. Freeburg, 92 111. Ill; Delaware Co. hattan L. Ina Co. v. Broughton, 109
v. McClintock, 51 Ind. 325; Missis- U. S. 121.
§ 161.] MUNICIPAL SECURITIES. 151
the case of the submission to a court of a question for its decis-
ion on the merits ; but it was a consent in advance to a particu-
lar decision by a person who had no right to bind the town by
such a consent, because it gave life to invalid bonds; and the
authorities of the town had no more power to do so than they
had to issue the bonds originally." l
But when power to issue exists, and the bonds are rendered
invalid by reason of some irregularity, they may be ratified by
the act of the corporation.2 The legislature may validate an
illegal issue of bonds if at the time of the passage of the cura-
tive act it has constitutional authority to authorize an original
issue of such bonds.1
§ 161. Liability for money received. — Although the cases
are not uniform, the rule may be considered as established
that when a corporation has issued illegal bonds, and received
and applied the proceeds thereof to an authorized purpose, an
action will lie against the corporation for money had and re-
ceived, although there can be no recovery upon the bond.4 As
stated in a recent case,5 municipal corporations are liable to
actions of implied assumpsit with respect to money or prop-
erty received by them and applied beneficially to their author-
ized objects, through contracts which are simply unauthorized
as distinguished from contracts which are prohibited by their
charters or some other law bearing upon them, or are malum
in se, or violative of public policy.
1 Kelley v. Town of Milan, 127 U. S. made without authority previously
139, per Blatchford, J. conferred, may be confirmed and le-
^Bolles v. Brimfield, 120 U. S. 759; galized by subsequent enactment,
Anderson v. Santa Anna Co., 116 when legislation of that character is
U. S. 356; Otoe Co. v. Baldwin, 111 not prohibited by the constitution,
U. S. 1 ; Black v. Cohen, 52 Ga. 621 ; and when that which is done would
Bridgeport v. Housatonic Ry. Co., have been legal had it been done
15 Conn. 475; Mills v. Gleason, 11 under legislative sanction previously
Wis. 493, 78 Am. Dec, 721; Comer v. given. Grenada Co. v. Brogden, 112
Folsom, 13 Minn. 219 (GiL 205); Kun- U. S. 261, 7 Am, & Eng. Corp. Cas.
kle v. Town of Franklin, 13 Minn. 127 329.
(Gil. 119), 97 Am. Dec. 226. By pay- <Bangor Sav. Bank v. Still water,
ment of interest. Brown v. Bon 49 Fed. Rep. 721; Argenti v. San
Homrae Co. (S. D.), 46 N. W. Rep. 17a Francisco, 16 Cal. 255; Morton v. Ne-
*Sykes v. Columbus, 55 Miss. 115; vada, 41 Fed. Rep. 582; Chapman v.
Katzenberger v. Aberdeen, 121 U. S. Douglas Co., 10? U. S. 343; Salt Lake
172. A municipal subscription to City v. Hollister, 118 U. S. 256.
the stock of a railway company or in * Allen v. The Intendant of La Fay-
aid of the construction of a railroad, ette, 89 Ala. 641, 9 L. R, A. 497.
152 POWEKS OF PUBLIC CORPORATIONS. [§§ 162-104.
§ 162. Right to restrain issue of illegal bonds. — Where no
adequate remedy at law exists, a taxpayer may restrain the
illegal issue of bonds which would be valid in the hands of an
innocent holder for value.1 But if they are of such a character
as to be void even in the hands of an innocent holder, the tax-
payer cannot suffer any loss by reason of their issue, and hence
cannot maintain an action for injunction.2
a. PURPOSES FOE WHICH BONDS MAY BE ISSTJED.
§ 163. Must be a public purpose. — The money with which to
pay maturing bonds must be raised by taxation; and it follows
from the general rule governing taxation that negotiable bonds
can be issued for public purposes only.8 "The legislature,"
said Chief Justice Black,4 " has no constitutional right to create
a debt, or to levy a tax, or to authorize any municipal corpo-
ration to do it, in order to raise money for a private purpose.
No such authority passed to the general assembly by the gen-
eral grant of legislative power. This would not be legislation.
Taxation is a mode of raising money for public purposes.
When it is prostituted to objects in no way connected with
public interest or welfare, it ceases to be taxation and becomes
plunder."
§ 164. What are public purposes. — A public corporation may
properly incur a debt and issue bonds for the purpose of paving
streets,5 constructing water- works,8 supporting public schools,7
1 Harrington v. Town of Plainview, lington, 3 "Wall 654; In re Washing-
27 Minn. 224; Flack v. Hughes, 67 ton Ave., 69 Pa. St. 352; People v.
Ill 384; Hodgman v. Chicago, etc. Flagg, 46 N. Y. 401.
Ey. Co., 20 Minn. 48; English v. 6 Land, L. & L. Co. v. Brown, 73
Smock, 54 Ind. 115, 7 Am. Rep. 215. Wis. 294, 3 L. R. A. 473; Yesler v.
2 McCoy v. Briant,53 Cal. 247; East Seattle, 1 Wash. 308. As to irriga-
OaklandTp. v. Skinner, 94 U. S. 256. tion bonds, see § 112; Hughson v.
sparkersburg v. Brown, 106 U. S. Crane, 115 Cal. 404; Falmouth Irri-
487; Loan Ass'n v. Topeka, 20 Wall gation District v. Bradley, 164 U. S.
655; City of Eufaula v. McNab, 67 112.
Ala. 588; Baltimore, etc. Ry. Co. v. 7 Read v. Plattsmouth, 107 U. S.
Spring, 80 Md. 510, 27 L. R. A. 72. 568; Hensley v. People, 82 111. 544;
* Sharpf sss v. Mayor of Philadel- Richards v. Raymond, 92 111. 612, 34
phia, 21 Pa. St. 147, 59 Am. Dec. 759. Am. Rep. 151; Board of Education
» Gladstone v. Throop, 71 Fed. Rep. v. State, 26 Kan, 44
841, 37 U. S. App. 481; Rogers v. Bur-
§ 165.] MUNICIPAL SECURITIES. 153
constructing public buildings,1 acquiring electric light plant,1
and, under express legislative authority, to aid in celebrating
some great national event, such as the Columbian Exposition,'
or the anniversary of its incorporation,4 or for the entertain-
ment of distinguished visitors upon such occasions.5 But no
implied authority exists to appropriate money for such pur-
poses.6 The treatment of habitual drunkards in a private in-
stitution, which is subject to visitation and inspection, is not a
public purpose for which a county can be required to pay.7
§ 165. Eailways. — Kail ways are of such a public character
that a public corporation may be authorized to aid in their con-
struction, either by subscription to their capital stock or by
donation, and the issue of negotiable bonds in payment of such
subscription or donation.8 The public has an interest in such
roads when they belong to a corporation as clearly as it would
if they were free or if tolls were payable to the state. Travel
and transportation are cheapened by it to a degree far exceed-
ing all the charges. This advantage the public has in addition
to those of rapidity, comfort and increase of trade.9
i Leaven worth v. Miller, 7 Kan. Morris, 84 I1L 410; Pine Grove Tp. v.
479. Public park. People v. Detroit, Talcott, 19 Wall. (CT. S.) 666, revers-
38 Mich. 228, 15 Am. Rep. 202; Peo- ing People v. Salem, 20 Mich. 452, 4
pie v. Chicago, 51 EL 17, 2 Am. Rep. Am. Rep. 400; Thompson v. Lee
278. County, 3 Wall (U. S.) 327; Dickin-
» Electric Light Co. v. Jackson- son v. Neely, 30 S. C. 587, 3 L. R. A.
ville, 36 Fla. 229, 30 L. R. A. 540. 672; Whiting v. Sheboygan, etc. Ry.
'Daggett v. Colgan, 92 Cal. 53, 14 Co., 25 Wis. 167, 3 Am. Rep. 30;
L. R. A. 474, and note. Davidson v. Ramsey County, 18 Minn.
<Hill v. Easthampton, 140 Mass. 482; Ex parte Selma, etc. Ry. Co.,
381. 45 Ala. 696, 6 Am. Rep. 722; Society
5Tatham v. Philadelphia, 11 PhiL of Savings v. New London, 29 Conn.
276. 174; Renick v. Davenport, 47 Iowa,
6 Hodges v. Buffalo, 2 Denio (N. Y.), 511 ; Hallenbeck v. Hahn, 2 Neb. 377;
110; Hood v. Lynn, 1 Allen (Mass.), "Wullenwaber v. Dunigan, 30 Neb.
103; The Liberty P>ell, 23 Fed. Rep, 877, 13 L. R. A. 811; Nelson v. Hay-
843. See Hayes v. Douglas County, wood Co., 87 Tenn. 781, 4 L. R A. 648.
92 Wis. 429, 31 L. R. A. 21&- The Michigan court adheres to the
7 Wisconsin Keeley Institute Co. decision in People v. Salem, supra,
v. Milwaukee Co. (Wis.), 70 N. W. although it -was reversed by the su-
Rep. 63, 36 L. R. A. 54 See § 97, preme court of the United States.
supra. People v. State Treasurer, 23 Mich.
8 Norton v. Dyersburg, 127 U. S. 499 ; Thomas v. Port Huron, 27 Mich.
139; Concord v. Robinson, 121 U. & 3'20.
165; Gelpcke v. Dubuque, 1 Wall 9Sharpless v. Mayor of Philadel-
(U. &) 175; Quincy, etc. Ry. Co. v. phia, 21 Pa. St. 147, 59 Am. Dec. 759.
154
POWEE3 OF PUBLIC COKPOKATIONS.
[§ 166.
But bonds issued by a county for the benefit of an insolvent
railroad company, with a provision that legal claims against
the company held by residents of the county shall first be paid
out of the proceeds, are void.1 "The effect and scope of the
act is simply to levy a tax upon the property of the citizens of
the county to pay to certain residents of the county the claims
due to them by an insolvent railway company. This is a pri-
vate purpose and not one of the objects of taxation."
In most of the cases no distinction is made between a subscrip-
tion to the stock of and a donation to the railway company ; 2
but it has been held that while a subscription to stock is valid,
a gift for the same purpose is invalid.3 The road to be aided
need not be in the municipality and may be in another state.4
§166. Private purposes. — The public has no such interest
in manufacturing and mining enterprises as will justify the
exercise of the power of taxation in their aid. And it follows
that bonds issued for such purposes are invalid.5 Thus, a city
1 Baltimore, etc. Ry. Co. v. Spring,
80 Md. 510, 27 L. R. A. 72.
2 In Davidson v. Ramsey Co., 18
Minn. 482 (Gil. 432), the court said:
" So far as the question of power is
concerned we think it quite unim-
portant whether the money to be
raised is to be given to the company
or loaned to it, or applied to pay for
subscriptions to stock. Stewart v.
Polk Co., 30 Iowa, 9. As remarked
by Chief Justice Black in Sharpless
v. Mayor of Philadelphia, 21 Pa. St.
147 and 169, the right to tax depends
upon the ultimate use, purpose and
object for which the fund is raised.
. . . The purpose of constructing
a railroad is a public purpose; . . .
and if it is thought to be better that
an outright gift of money should be
made than that the city should be-
come a stockholder in the road,
there is nothing to prevent the for-
mer course from being adopted."
J Whiting v. Sheboygan, etc. Ry.
Co., 35 Wis. 167, 3 Am. Rep. 30;
Sweet v. Hulbert, 51 Barb. (N. Y.)
312.
*Bell v. Mobile, etc. Ry. Co., 4
Wall (U. S.) 598; Chicago, etc. Ry.
Co. v. Otoe Co., 16 Wall. (U. S.) 667;
Walker v. Cincinnati, 21 Ohio St. 14,
8 Am. Rep. 24; St. Jo. etc. Ry. Co. v.
Buchanan Co., 39 Mo. 485. See 72
Mo. 329.
5 Loan Ass'n v. Topeka, 3 Dill. 376,
20 Wall. (U. S.) 655; Osborne v.
Adams Co., 106 U. S. 181, 109 U. S.
1; Parkersburg v. Brown, 106 U. S.
487, 2 Am. & Eng. Corp. Cas. 263;
Blair v. Cuming Co., Ill U. S. 363;
Brodhead v. Milwaukee, 19 Wis.
624, 88 Am. Dec. 711; Weismer v.
Douglas, 64 N. Y. 91, 21 Am. Rep.
586; Bissell v. Kankakee, 64 111. 249,
21 Am. Rep. 554; Tyler v. Beacher,
44 Vt 648, 8 Am. Rep. 398; Allen v.
Jay, 60 Me. 124, 11 Am. Rep. 185.
In State v. Osawkee Tp., 14 Kan.
418, 19 Am. Rep. 99, it was held
that money might lawfully be appro-
priated k> provide destitute farmers
with seed grain; but the contrary
was held in State v. -Nelson Co.
(N. Dak.), 45 N. W. Rep. 33, 8 L. R. A.
283, and In re House Roll No. 284,
§§ 167, 168.] MUNICIPAL SECLK1T1ES. 155
cannot legally incur a debt and issue bonds for the purpose of
aiding in the construction of a dam over a river within the
limits of the municipality, in order to aid in developing the
manufacturing interests of the city.1
§167. Hoiv determined. — It is well settled that the courts
must determine whether the particular purpose under considera-
tion is public or private,2 and in so doing they must be guided
largely by considerations of public policy.1
5. CONDITIONS PRECEDENT TO LEGAL ISSUE.
§ 168. In general. — The issue of bonds by public corporations
is ordinarily authorized upon certain specified conditions. Such
conditions may be imposed by the constitution, an act of the legis-
lature, or by the corporate authorities. Those imposed by the
constitution or act of the legislature must be strictly complied
with or the bonds will be invalid.4 But where the law provided
that bonds should not "be valid and binding until such condi-
tions precedent had been complied with," it was held that they
might be complied with after the bonds were issued.5 After
there has been substantial performance of the conditions, the
validity of the bonds is not affected by subsequent acts.6 Such
conditions may be imposed by the corporation although not
required to do so by the law.7 But an innocent purchaser of
31 Neb. 505. In Lowell v. Boston, ture lie so near the border line as
111 Mass. 454, 15 Am. Rep. 39, it was that it may be doubtful on which
held a city has no power to issue side it may be domiciled, the court
bonds in aid of persons suffering may not set their judgment against
from a flood or fire. that of the law-makers."
1 Mather v. Ottawa, 114 111. 659, 11 * Leavenworth, etc, Ry. Co. v.
Am. & Eng. Corp. Gas. 248; Ottawa Platte Co., 42 Mo. 171; Essex Co. Ry.
v. Carey, 108 U. S. 110. Co. v. Lunensburg, 49 Vt. 143; Town
2 In re Townsend, 39 N. Y. 171. of Eagle v. Kohn, 84 111. 292; Belo v.
» Perry v. Keene, 56 N. EL 514. In Forsythe Co., 76 N. C. 489.
Weismer v. Douglas Co., 64 N. Y. 91, 5 Town of Eagle v. Kohn, 84 I1L
21 Am. Rep. 586, Mr. Justice Folger 292.
said : " When we come to ask, in any 6 Hodgman v. Chicago, etc. Ry. Co.,
case, what is a public purpose, the 23 Minn. 153.
answer is not always ready nor easy 7 Mason v. Shawneetown, 77 HL
to be found. It is to be conceded 533; California, etc. Ry. Co. v. Butte
that no pinched or meager sense may Co., 18 Cal. 671 ; Hodgman v. Chicago,
be put on the words, and that if the etc. Ry. Co., 20 Minn. 48, 23 Minn.
purpose designated by the legisla- 153; Coe v. Railway Co., 27 Minn. 197.
156 POWEK8 OF PUBLIC CORPORATIONS. [§§ 169, 170.
bonds issued under such conditions is not required to see that
they have been complied with.1 When conditions have been
submitted to and approved by the voters of a municipality they
cannot be waived by the municipal officials,2 but must be re-
submitted to the people.3 But it seems that if it is generally
known that the conditions have not been complied with, and
the bonds are allowed to issue without objection, it will be held
to amount to a waiver.4 The power to determine when con-
ditions have been performed is an official trust which cannot
be delegated by the corporate authorities.5
§ 169. Consent of the people. — A common condition prece-
dent to the issue of bonds is that the consent of a certain pro-
portion of the voters or taxpayers shall first be obtained at a
general or special election. This is now required in most of
the states. But a popular vote does not confer power to issue
aid bonds in the absence of a valid enabling act.6 This condi-
tion must be strictly complied with;7 but irregularities which
do not affect the result of the election will not invalidate the
bonds in the hands of an innocent purchaser for value.8 Rea-
sonable certainty only in the manner of voting is necessary.9
§ 170. Manner of obtaining consent. — When a majority of
the voters of a municipality are authorized by law to incumber
the property of all in aid of some public purpose, the record
of the proceedings must affirmatively show that the statutory
authority has been followed according to its terms.10 Thus,
1 Nelson v. Hay wood Co., 87 Term. 7 Louis v. Bourbon Co., 12 Kan.
781, 4 L. R A. 648, 659. 186. See State v. Saline Co., 48 Mo.
2 Hodgraan v. Chicago, etc. Ry. Co., 390, 8 Am. Rep. 108.
20 Minn. 48, 23 Minn. 153. 8 Johnson Co. v. Thayer, 94 U. S.
3 Town of Platteville v. Galena, 43 631 ; Commissioners v. Shorter, 50
Wia 493: State v. Montgomery, 74 Ga. 489; State v. Hordey, 39 Kan.
Ala. 226; Douglas Co. v. Walbridge, 657, 18 Pac. Rep. 942. Mere infor-
38 Wis. 179; State v. Daviess Co., 64 mality in conducting the election
Mo. 30. will not overcome the presumption
4 Leavenworth, etc. Ry. Co. v. that the holder is a bonaftde holder.
Douglas Co., 18 Kan. 169. Pana v. Bowler, 107 U. S. 539.
•Jackson Co. v. Brush, 77 111. 59; s>Ranney v. Baeder, 50 Mo. 600.
Knox Co. v. Nichols, 14 Ohio St. 260. i°Rich v. Mentz Tp., 134 U. S. G'^3;
•Allen v. Louisiana, 103 U. S. 80; Cowdry v. Caneadea, 16 Fed. Rep.
Hayes v. Holly Springs, 114 U. & 120. 532.
§ 171.] MUNICIPAL SECURITIES. 157
where the proceeding is by petition, the petition required by
the law must be absolute,1 must contain all the facts required
by the law,2 and be signed by the requisite number* of duly
qualified citizens.4 A petition showing the consent of a " ma-
jority of taxpayers " is not sufficient when the law requires the
consent of a majority of taxpayers exclusive of those taxed for
dogs and highway purposes only.5 A required election must
be called by the persons designated in the law6 and notice
must be given in the manner directed.7 When the notice is
required to be given by the supervisors, it may be by order of
the board signed by the clerk.8 The notice must state the sub-
ject-matter to be voted on with reasonable certainty. Thus, an
article in a warrant for a town meeting " to see if the town
will loan its credit to aid in the construction " of a railroad is
sufficient.9 But a notice which does not state the amount of
bonds proposed to be issued, the interest or the time or place
of payment thereof, but merely the time of election and the
object of the bonds, is insufficient.10 A general notice of elec-
tion need not state the places at which the election will be
held when the general election law requires that notices to be
posted in each precinct shall contain such statement.11 The
conditions in the bonds must follow the notice.12
§ 171. "Majority of voters" — A majority of the legal voters
satisfies a statute which requires a majority of the taxpayers.11
The consent of the " inhabitants " means the consent of the
legal voters.14 A majority of the legal voters means a majority
of those voting at an election duly called and held.15 A major-
1 Craig v. Township of Andes, 93 Bowen v. Mayor of Greensboro, 79
N. Y. 405. Contra, Bittinger v. Bell, Ga. 709.
65 Ind. 445. 10 Packwood v. Kittitas Co., 15 Wash.
2 People v. Spencer, 55 N. Y. 1; 88, 33 L. R, A. 673, 45 Pac, Rep. 640,
Wellsborough v. New York, etc. Ry. n Packwood v. Kittitas Co., supra.
Co., 76 N. Y. 182L i2Skinner Vt Santa Rosa ,CaL)f 29
» People v. Oldtown, 88 HL 202. L. R A. 512.
* People v. Cline, 63 EL 394. « Hannibal v. Fauntleroy, 105 U. a
s Rich v. Mentz Tp., 134 TL S. 62& 408.
6 Jacksonville R. R. Co. v. Virden, n Walnut Tp. v. Wade, 103 U. S.
104 EL 339. 68a
i George v. Oxford Tp., 16 Kan. 72. » St Joseph Tp. v. Rogers, 16 Wall
•Lawson v. Milwaukee, etc. 'Ry. 644; Cass Co. v. Johnston, 95 U. S,
Co., 30 Wis. 597. 360, overruling Harshinan v. Bates,
•Belfast T. Brooks, 60 Me. 569; 92 U. S. 569. The supreme court of
158 POWERS OF PUBLIC CORPORATIONS. [§ 172.
ity of the qualified electors means a majority of the registered
voters.1 Two-thirds of the qualified voters means two-thirds
of those who vote.2 A purchaser of county bonds need look
no further than the record made by the county board of their
determination that the requisite number of votes has been cast.8
§ 172. Location and completion of roads. — Where bonds are
to be used to aid in the construction of a railroad it is com-
monly made a condition precedent to their lawful issue and
delivery that the road to be aided shall be located on a certain
line or completed to a designated point. Such conditions must
be complied with before the bonds are earned.4 A condition
that the company shall, before a certain date, " have completed,
ironed and equipped its road from said village of "W. to the city
of M., and have the same in operation for the transportation of
passengers and freight," is substantially complied with by so
constructing the road to within a quarter of a mile of the vil-
lage of W. and from that point entering the town over the
line of another company and using its depot.5 The completion
of a road to within three-quarters of a mile of the opposite
bank of the Mississippi river is not performance of a condition
requiring the completion of the road to a town on the opposite
side of the river, but the railway company cannot in such case
be required to construct a bridge across the river. It is suffi-
cient if it provides such facilities for crossing as at the time of
the contract were usual and customary under the circumstances
in railroad transportation and as were reasonably adequate
Missouri has -held the statute under ! Sutherland v. Town of Goldsboro,
consideration in the above case un- 96 N. C. 49; McDowell v. Mass. etc.
constitutional State v. Harris, 96 Co., 96 N. C. 514
Mo. 29, 22 Am. & Eng. Corp. Cas. 43: 2 State v. St. Joseph, 37 Mo. 270.
Carroll Co. v. Smith, 111 U. S. 556; 3 Portland, etc. Ry. Co. v. Hart-
People v. Warfield, 20 III 160; Peo- ford, 58 Me. 23; Woonsocket, etc.
pie v. Wiant, 48 III 263; Griffin v. Ry. Co. v. Sherman, 8 R. L 564;
Inman, 57 Ga. 370. " The majority Stockton, etc. Ry. Co. v. Stockton,
of such electors," as used in section 51 CaL 328; Virginia, etc. Ry/ Co. v.
1, article 2, constitution of Minne- Lyon Co., 6 Nev. 68; Dickinson v.
sota, means the majority of the Neely, 30 S. C. 587, 3 L. R. A. 672.
electors voting at the election. Tay- * Valley Co. v. McLean, 49 U. S.
lor v. Taylor, 10 Minn. 107 (Gil. 81); App. 131, 79 Fed. Rep. 728.
Everett v. Smith, 22 Minn. 53; Bel- 8 State v. Clark, 23 Minn. 422. And
knap v. Louisville (Ky.), 34 L. R. A, see Mo. Pac. Ry. Co. v. Tygard, 84
256. Mo. 263, 54 Am. Rep, 97.
§ 173.] MUNICIPAL SECURITIES. 159
and convenient.1 "Whether the time of completion is material
will depend upon the language of the statute. "When not made
of the essence of the contract the municipality will be liable on
the bonds if it actually receives the benefits sought by the con-
tract.2 Thus, a railway company does not forfeit its right
to a donation by its failure to complete its road within the
designated time when the prescribed expenditure has been
made within the township limit.' The actual location of the
road may be made a condition precedent to the submission of
the question of aid to the voters.4 In such a case, if the condi-
tions are not complied with and the bonds are nevertheless
issued, they are invalid unless held by ~bonafide purchasers with-
out notice.5
C. ESTOPPEL.
§ 173. When estoppel arises. — It has been stated that want of
power is always a defense to an action on municipal securities,
even as against a b&nafide holder. The validity of such instru-
ments is ordinarily attacked on the grounds : First, because issued
or used for other than public purposes; second, because the
enabling statute is unconstitutional ; or third, because of non-
compliance with conditions imposed by the enabling act or the
issuing corporation. But the corporation may by its acts place
itself in a position where it cannot avail itself of what would
1 Hodgman v. Chicago, etc. Ry. not necessary that there should have
Co., 20 Minn. 48. See Winona v. been a definite and final survey and
Thompson, 24 Minn. 199, and Winona location of the entire line of road
v. Cowdry, 93 U. S. 612. before the election. All that was
2 Nevada Bank v. Steinmetz, 61 necessary was a substantial location
CaL 301; Kansas City Ry. Co. v. Al- designating the termini and general
derman, 47 Ma 349; Portage Co. v. direction of the road and an esti-
Wis. etc, Ry. Co., 121 Mass. 460; Peo- mate of the cost of construction. In
pie v. Holden, 82 111. 93 ; McManus v. some of the state courts, however, a
Duluth, C. & W. R. Co., 51 Minn. 30; much stricter rule is applied. Thus,
German Savings Bank v. Franklin where a condition required the con-
Co., 128 U. S. 526. struction of a road within twelve
8 Nixson v. Campbell, 106 Ind. 47. hundred feet of a mill, it was held
4Cass v. Jordan, 95 U. S. 373; that its construction within two
Treadwell v. Hancock Co., 11 Ohio thousand feet was not a compliance
St. 183. with the conditions. Virginia, etc,
sPurdy v. Lansing, 128 U. S. 557; R. R. Co. v. Lyon Co., 6 Nev. 68.
Millen v. Lansing, 11 Fed. Rep. 829. Federal courts disregard fractions of
In Wiison Co. v. First Nat. Bank, miles in such cases. Johnson Co. v.
103 U. S. 770, it was held that it was Thayer, 94 U. & 63L
160 POWERS OF PUBLIC CORPORATIONS. [§§ 174, 175.
but for the doctrine of estoppel be a good defense. No estoppel
can arise, however, against the defense of want of power.1
Even a lonafide holder for value is bound to take notice of the
law under which the bonds are issued.2
§ 174. Authority of officers. — A public corporation is not
estopped to deny the authority of persons who assume to act
for it ; and it follows that purchasers of bonds must assume the
risk of the genuineness of signatures and official character.3
Mr. Justice Bradley said: 4 " The plea that the city is estopped
by the acts of its officers, by the resolutions of the city council,
or by the negotiable form or matter in the bonds themselves,
from denying the authority of such officers to pledge the faith
of the city in aid of said plank-road and to issue the bonds in
question, cannot be maintained. Public officers cannot acquire
authority by declaring that they have it. They cannot thus
shut the mouths of the public whom they represent. The offi-
cers and agents of private corporations intrusted by them with
the management of their own business and property may estop
their principals and subject them to the consequences of their
unauthorized acts. But the body politic cannot be thus silenced
by the acts or declarations of its agents. I hold it to be a sound
proposition that no municipal or political body can be estopped
by the acts or declarations of its officers from denying their
authority to bind it."
§ 175. Estoppel by conduct — Illustrations. — A municipality
may by its course of dealing be estopped to interpose a defense
growing out of an irregular exercise of power. Under such
1 Aspinwall v. Daviess Co., 22 How. corporation without power is void
(U. S.) 364: Marsh v. Fulton Co., 10 and cannot be made valid by any act
Wall. (U. S.) 676; Loan Ass'n v. To- of the corporation or its officers."
peka, 20 Wall. (U. S.) 655; Force v. *Barnett v. Dennison, 145 U. S.
Town of Batavia, 61 111. 100; Bissell 136; Ottawa v. Carey, 108 U. S. 110;
v. Kankakee. 64 III 249, 21 Am. Rep. Force v. Town of Batavia, 61 111. 100.
554; Town of Douglass v. Niantio 'Merchants' Bank v. Bergen Co.,
Sav. Bank, 97 111. 228; Williamson v. 115 U. S. 348; Brown v. Bon Homme
Keokuk, 44 Iowa, 88: Lamoille, etc. Co., 1 S. Dak. 216, 46 N. W. Rep. 173;
Ry. Co. v. Fairfield, 51 Vt. 257. Mr. Coler v. Cleburne, 131 U. S. 162; Flagg
Simonton (Mun. Bonds, § 192) says: v. School District, 4 N. Dak. 80, 25
"The true meaning of the term L. R. A. 363, 58 N. W. Rep. 499.
' want of power ' is the total lack of 4 Chisholm v. Montgomery, 2 Wood
a'uthority in the corporation to act, (C. C.), 584.
and every act done by the municipal
§ 175.]
MUNICIPAL SECUEITIES.
161
circumstances the holder of the bonds is entitled to the same
protection as a lona fide holder.1 Thus, an estoppel may arise
by the corporation retaining the consideration, such as stock,
received for the bonds, and paying interest on the bonds.8 But
it must be remembered that such acts do not create an estoppel
when no power to issue the bonds existed. If the legislature
was without power to authorize the issue of bonds and the en-
abling statute is therefore invalid, the mere payment of inter-
est or other such acts cannot create or supplement the power
which is lacking.3 Failure to enjoin the issue of bonds, fol-
lowed by long acquiescence, has been held to work an estoppel.4
But when suit was brought twelve years after the issue of the
bonds to secure a correction of their form, and it appeared that
the town officers had been culpably negligent, the relief was
granted as against the defendants, who knew all the facts and
were trying to obtain an unfair advantage.5 The mere execu-
tion and delivery of bonds will not estop the corporation from
asserting the non-performance of conditions precedent.6
to issue, but of compliance with a
condition in respect to which there
may be an estoppel by recitals or
other act by the city officials, such
payment of interest ought to have
and has been held to have great
weight" See, also, the remarks of
Judge Drummond in Portsmouth
Savings Bank v. Springfield, 4 Fed.
Rep. 276. The payment of interest
on all the bonds issued is not a rati-
fication of those issued in excess of
the constitutional limit. Daviess Co.
v. Dickinson, 117 U. S. 657.
'Loan Ass'n v. Topeka, ?0 WalL
(U. S.) 655.
4 Supervisors of Marshall Co. v.
Schenck, 5 WalL (U. S.) 781; Meyer
v. Muscatine, 1 WalL (U. S.) 384,
Contra, as to mere failure to enjoin.
McPherson v. Foster, 43 Iowa, 48, 22
Am.- Rep. 215.
5 Town of Essex v. Day, 52 Conn.
483, 11 Am. & Eng. Corp. Cas. 265.
6 Buchanan v. Litchfield, 102 U. S.
278. But see Mutual Ben. Life Ins.
Co. v. Elizabeth, 42 N. J. L. 235.
v. Burlington, 3 WalL
(U. S.) 654; Bissell v. Jeffersonville,
24 How. (U. S.) 287; Bennington v.
Park, 50 Vt 178; N. EL etc. Ry. Co.
v. Chatham, 42 Conn. 465: Steines v.
Franklin Co., 48 Mo. 167, 8 Am.
Rep. 87.
J Alvord v. Syracuse Savings Bank,
98 N. Y. 599, 8 Am. & Eng. Corp.
Gas. 598; People v. Cline, 63 Dl. 394;
Ray Co. v. Vansycle, 96 U. S. 675;
State v. Clinton Co., 6 Ohio St. 280.
In Pendleton Co. v. Amy, 13 WalL
(ET. S.) 297, it appeared that the
county issued bonds without a pop-
ular vote as required by law. After
holding the stock which it received
for the bonds for seventeen years
the county was held estopped to de-
fend, although the bonds contained
no recitals. In Moulton v. Evans-
ville, 25 Fed. Rep. 382, the court said:
"While it is unquestionably true
that the payment of interest will
not validate a bond issued without
authority of law, yet in cases where
the objection is, not a want of power
11
162 POWEKS OF PUBLIC CORPORATIONS. [§§ 176, 177.
§ 176. By judgment — A judgment against a corporation on
a contract, although by default, closes the question of the power
of the corporation to make the contract. Hence, " in an action
to enforce the collection of a judgment, or the collection of
bonds or coupons issued in payment of a judgment against a
municipal or quasi-municipal corporation, the judgment con-
clusively estops the corporation from making the defense that
the original indebtedness evidenced by it was in excess of the
amount which the corporation had the power to create, under
the limitation of the constitution of the state in which it was
incorporated." *
d. EIGHTS OF BONA FIDE HOLDERS.
§ 177. Who are such. — A ~bonafide holder of municipal secu-
rities is one who purchases for value without notice of any de-
fect or is the successor of one who was such a purchaser.2 A
purchaser for value from a lona fide holder is entitled to all
the rights of such holder, although such purchaser has notice of
existing equities.3 A purchaser is not charged with construct-
ive notice of defenses by the pendency of an action to deter-
mine the validity of the bonds;4 nor by the fact that the
bonds were issued in violation of an injunction issued in a pro-
ceeding to which he was not a party.5 The presence of over-
due coupons on a bond will not charge the purchaser with
notice of defenses;6 but when the bond states that default in
the payment of interest will render the bond due and payable,
the presence of unpaid coupons is notice that the whole amount
1 Board of Commissioners v. Platt this decision. The opinion and the
(C. C. A.), 79 Fed. Rep. 572; Last effect of the decision in the former
Chance Min. Co. v. Tyler Min. Co., 157 case are explained and limited in
U. S. 683; Cutler v. Houston, 158 Franklin Co. v. German Sav. Bank,
U. S. 423; Sioux City, etc. St. R. Co. 142 U. S. 93."
v. Osceola Co., 45 Iowa, 168, 52 Iowa, 2 McClure v. Oxford Tp., 94 U. S. 429.
26; Edmondson v. School District 8 Rollins v. Gunnison Co., 49 U.S.
(Iowa), 67 N. W. Rep. 671; Howard App. 399, 80 Fed. Rep. 682; Cromwell
v. Huron (S. D.), 59 N. W. Rep. 833, v. Sac Co., 96 U. S. 51: Suffolk Sav.
60 N. W. Rep. 803. In Board of Com- Bank v. Boston, 149 Mass. 364, 4 L.
missioners v. Pratt, supra, the court R. A. 516; Lynchburg v. Slaughter,
said: "The cases of Commissioners 75 Va. 57.
v. League, 129 U. S. 493, and Kelly < Scotland Co. v. Hill, 132 U. S. 107.
v. Town of Milan, 21 Fed. Rep. 842, 5 Carroll Co. v. Smith, 111 U. S. 556.
127. U. S. 138, are not in conflict with « Cromwell v. Sac Co., 96 U. S. 58.
§§ 178, 179.] MUNICIPAL SECURITIES. 163
of the bond is due.1 But a purchaser is bound to take notice
of the provision of the constitution, the laws of the state,* the
requirements of the statute under which the bonds are issued,8
the public records in relation to the issue,4 and of what appears
upon the face of the instrument.5
§ 178. Defenses available against a lona fide holder. — When
bonds are issued in pursuance of powers conferred by the leg-
islature they are valid commercial instruments; but if issued
without authority they are invalid even in the hands of bona
fide holders for value. "Want of power to issue the securities
is the only defense which can be successfully interposed to a
suit by a Txma fide holder for value who acquired the bond
before maturity in reliance upon recitals contained therein
and without notice, actual or constructive, of defenses.'
§ 179. Recitals in bonds. — As between the original parties
the question of compliance with conditions precedent to the
lawful issue of bonds is always open to investigation. Every
holder of bonds is required to know the law under which they
were issued and the terms and conditions imposed by the law
upon the corporation as limitations upon its power. Hence,
when the enabling statute provides that the bonds shall be void
unless the conditions are complied with, every holder takes
with notice of this provision and must satisfy himself of the
fact of compliance,7 as bonds issued in violation of the express
terms of the statute are invalid even in the hands of an inno-
1 Mayor v. City Bank, 58 Ga. 587. of the statute and of all its require-
As to what is sufficient to put a pur- ments."
chaser on inquiry, see Parsons v. 4 Brown v. Ingalls Tp., 81 Fed. Rep.
Jackson, 99 U. S. 434; Crow v. Ox- 485. See g 183, infra,
ford Tp., 119 U. S. 215. * Brown v. Bon Homme Co., 1 a
*Knox Co. v. Aspinwall, 21 How. Dak. 216, 46 N. W. Rep. 173; Aurora
(U. S.) 539. v. West, 22 Ind. 88; Gilson v. Day-
* Manhattan Co, v. Iron wood, 43 ton, 123 U. S. 59.
U. S. App. 369, 74 Fed. Rep. 535; 6 St. Joseph Tp. v. Rogers, 16 Wall
Bank v. School District No. 53, 3 N. 644; Brenham v. German American
Dak. 496, 28 L. R. A. 642; Barnett v. Bank, 144 U. S. 173; Bissell v. Kan-
Dennison, 145 U. S. 136. In McClure kakee, 64 I1L 249.
v. Oxford Tp., 94 U. S. 429, the court ? German Sav. Bank v. Franklin
said: "Every dealer in municipal Co., 128 U. S. 526; Anthony v. Jas-
bonds which upon their face refer per Co., 4 Dili (C. C.) 136; Bailey v.
to the statute under which they Tabor, 5 Mass. 286, 4 Am. Dec. 57.
were issued is bound to take notice See § 183 as to overissue.
164 POWEES OF PUBLIC COKPOKATTONS. [§ 180.
cent purchaser for value.4 But when the law contemplates
that certain officials shall determine when the prescribed con-
ditions are complied with, and such officials certify to the facts,
the innocent purchaser of the bonds is entitled to rely upon
such certificate.2 The rule, as established by many decisions,
is thus stated by Judge Dillon : 3 "If upon a true construction
of the legislative enactment conferring the authority (to issue
the bonds upon certain condition), the corporations or certain
officers or a given body or tribunal are invested with power to
decide whether the conditions precedent have been complied
with, then it may well be that their determination of a matter
in pais which they are authorized to decide will, in favor of
the bondholder for value, bind the corporation." This rule ap-
plies to non-negotiable as well as to negotiable bonds.4
§ 180. Effect of recitals — continued. — The rule stated in the
preceding section has been frequently approved by the supreme
court of the United States. Thus, in a leading case,5 Mr. Jus-
tice Strong said, with reference to the language of Judge Dil-
lon: "This is a very cautious statement of the doctrine. It
may be stated in a slightly different form, — when the legisla-
tive authority has been given to a municipality or to its offi-
cers to subscribe to the stock of a railroad company and to
issue bonds in payment, but only on some precedent condition,
such as a popular vote in favor of the subscription; and where
it may be gathered from the legislative, enactment that the
officers of the municipality were invested with power to de-
cide whether the condition precedent has been complied with,
their recital that it has been, made in bonds issued by them
and held by a bona fide purchaser, is conclusive of the fact,
1 Aspinwall v. Daviess Co., 22 How. sued for the purpose stated on their
(U. S.) 364; Moore v. Mayor, 73 N. Y. face. National Life Ins. Co. v. Board
238, 29 Am. Rep. 134 of Education, 62 Fed. Rep. 783. The
2 Second Ward Sav. Bank v. City first and leading case upon the sub-
of Huron, 80 Fed. Rep. 661; Evans- ject of the effect of recitals is Com-
ville v. Dennett, 161 U. S. 434. missioners of Knox Co. v. Aspinwall,
»Mun. Corp., I, § 523. 21 How. (U. S.) 539, decided in 1858.
4 Flagg v. School District, 4 N. Dak. It has never been overruled although
30, 25 L. R. A. 363, 58 N. W. Rep. 499. attacked in dissenting opinions in
8 Town of Coloma v. Eaves, 92 later cases. See Town of Coloma v.
Ui. S. 484. A corporation cannot be Eaves, supra.
heard to deny that the bonds were is-
§§ 181, 182.] MUNICIPAL SECURITIES. 165
and binding upon the municipality; for the recital is itself a
decision of the fact by the appointed tribunal." Hence the
municipality may, by proper recitals made by duly authorized
officials, be estopped from availing itself of the defense of ir-
regularities in the election held to authorize the issue of bonds,1
that the consent of the requisite number of taxpayers has not
been duly obtained,2 or that the authority to make the stock
subscription has expired before the subscription was made.3
§181. Authority of officials to make recitals. — It is only
when the officers have authority to determine whether or not
conditions have been complied with that their recital of the
fact of performance estops the corporation from showing non-
performance. If no authority exists, the purchaser has no
more right to rely upon their recital than upon the certificate
of a stranger. Hence, where the validity of the bonds de-
pends upon an estoppel claimed to arise upon the recitals in
the instrument, the question being as to the existence of the
power to issue them, it is necessary to establish that the offi-
cers executing the bonds had lawful authority to make the re-
citals and to make them conclusive. The ground of the estop-
pel is the recitals and official statements of those to whom the
law refers the public for authentic and final information on
the subject.4 It is not necessary that the authority to deter-
mine the facts should be conferred on the officers in express
terms, as it is enough that the whole control of the matter be
given to the officers named.5
§ 182. Recital iliat ~bonds Jiave leen issued "in conformity to
law." — "It is not necessary," says the supreme court of the
United States,6 " that the recital should enumerate each partic-
iMoran v. Miami Co., 67 U.& 722; Bon Homme Co., 1 S. Dak 216, 46
Bissell v. Jefferson ville, 24 How. N. W. Rep. 173; Flagg v. School
(U. S.)287; Pana v. Bowler, 107 U. & District, 4 N. Dak. 30, 25 L. R. A.
529, 12 Am. & Eng. Ry. Cas. 563. 363, 58 N. W. Rep. 499.
2 Town of Venice v. Murdock, 93 5 Bernards Tp. v. Morrison, 133
U. S. 494. U. S. 523; Coler v. Dwight School
» Moultrie Co. v. Rockingham Sav. Tp., 3 N. Dak. 249, 55 N. W. Rep. 587;
Bank, 92 U. S. 631. Fulton v. Riverton, 42 Minn. 395;
«Dixon Co. v. Field, 111 U. S. 83; Brownell v. Greenwich, 114 N. Y.
German Sav. Bank v. Franklin Co., 518, 4 L. R. A. 685.
128 U. S. 526; Coffin v. Kearney Co. 6 Dixon Ca v. Field, 111 U. S. 83.
Com'rs, 57 Fed. Rep. 137; Brown v.
166 POWERS OF PUBLIC CORPORATIONS. [§ 182.
ular fact essential to the existence of the obligation. A general
statement that the bonds have been issued in conformity with
the law will suffice, so as to embrace every fact which the offi-
cers making the statement are authorized to determine and cer-
tify. This is the rule which has been constantly applied by
this court in the numerous cases in which it has been involved.
The differences in the results of the judgments depended upon
the question whether in the particular case under consideration
a fair construction of the law authorized the officers issuing the
bonds to ascertain, determine and certify the existence of the
facts upon which their power, by the terms of the law, was
made to depend, not including, of course, that class of cases in
which the controversy related not to the conditions precedent
on which the right to act depended, but upon conditions affect-
ing only the mode of exercising a power admitted to have come
into being." 1
In a case where the bonds under consideration recited that
they were issued "in pursuance" of the statute, Mr. Justice
Harlan said:2 "Legislative authority for an issue of bonds
being established by reference to the statute, and the bonds re-
citing that they were issued in pursuance of the statute, the
utmost which plaintiff was bound to show, to entitle him prima
facie to judgment, was the due appointment of the commis-
sioners and execution by them in fact of the bonds. It was
not necessary that he should in the first instance prove either
that he paid value or that the conditions preliminary to the
exercise by the commissioners of the authority conferred by
statute were in fact performed before the bonds were issued.
The one was presumed from the possession of the bonds, and
the other was established by the statute authorizing an issue
of bonds and by proof of the due appointment of commission-
ers and their execution of the bonds with the recital of their
iThe facts which the corporation conferring the power made it their
is not permitted, as against a bona duty to ascertain and determine be-
fide holder, to question in the face fore the bonds were issued. North-
of a recital in the bond of their ex- ern Trust Co. v. Porter Tp., 110 U. S.
istence are those connected with or 608; Brown v. Bon Homme Co., 1
growing out of the discharge of the S. Dak. 216, 46 N. W. Rep. 173.
ordinary duties of such of its officers 2 Montclair v. Ramsdell, 107 U. S.
as were invested with authority to 147t
execute them and which the statute
§ 183.] MUNICIPAL SECURITIES. 167
compliance with the statute." l A recital that the bonds were
executed pursuant to an order of the county court is equiva-
lent to an express statement that the ordinance is in conformity
with the statute.2
§ 183. Excessive issues. — "When the constitution provides that
public corporations shall not issue bonds in an amount greater
than a specified percentage of the valuation of the taxable
property within the corporation limits, to be ascertained by
the official valuation for the purposes of taxation, it fixes a
limit beyond which the power to issue bonds cannot be con-
ferred. Bonds issued in excess of such limit are void in the
hands of bonajide holders,8 notwithstanding the fact that they
contain a recital that they are issued under and pursuant to
the constitution of the state. But when the legislature is the
source of the law creating the limitation a different rule seems
to apply. After declaring the limitation, it creates or desig-
nates a board or an officer as the authority which is to deter-
mine whether the condition precedent to the issue has been
complied with. In such case the power which limits or re-
stricts may suspend the restriction or limitation. The facts to
be determined by the official, such as the amount of taxable
property and the amount of existing indebtedness, are extrin-
sic facts, which bear not so much upon the power to issue the
bonds as upon the question whether or not they should be
issued at the time in question.4 Hence, when the designated
officials have determined these questions and issued the bonds,
with full recitals of compliance with the law, they are valid in
the hands of innocent holders for value although for an amount
in excess of the statutory limit.5 But when the limitation is
based upon a public record, such as an assessment roll, the pur-
1 Bernards Tp. v. Morrison, 133 657; Stockdale v. Wayland School
U. S. 523; Chaff ee Co. Com'rs v. Pot- District, 47 Mich. 226.
ter, 142 U. S. 355; Cotton v. New * Prince v. Crocker, 166 Mass. 347,
Providence, 47 N. J. L. 401. 44 N. E. Rep. 446, 33 L. R. A. 610;
2 Wesson v. Saline Co., 34 U. S. Sherman v. Simons, 109 U. S. 735;
App. 680, 73 Fed. Rep. 917. Lake Co. v. Graham, 130 U. S. 674;
»Dixon Co. v. Field, 111 U. a 83; Oregon v. Jennings, 119 U. S. 74.
Dillon, Man. Corp., sec. 529; Lake 5Marcy v. Oswego Tp., 92 U. S.
Co. T. Graham, 130 U. 8. 674; Bu- 637; New Providence v. Halsey, 117
chanan v. Litchfield, 102 U. S. 278; U. S. 336.
Daviess Co. v. Dickinson, 117 U. S.
168 POWERS OF PUBLIC OOKPOEATIONS. [§ 183.
chaser of bonds is bound to take notice of such facts as the
official records disclose concerning the valuation of taxable
property.
In a case of overissue of bonds under a constitutional provis-
ion it was said : l " When the authority to create the debt at all,
or beyond a given amount, is made to depend upon official
records, the same rule in regard to recitals in bonds given for
the debt should not be applied. Every holder of such bonds is
charged with a knowledge of the provisions of the law relating
to their issuance, and the law points to the records as evidence
of the existence of the facts required to authorize their issu-
ance, or to limit the amount of the debt the city may create.
Such records and not the recitals in the bonds must be looked
to by every one who proposes to deal in the bonds."
1 Citizens' Bank v. City of Terrell, certain percentage of the assessment
78 Tex. 456, 14 S. W. Rep. 1003; rolls are charged with notice of the
Quaker City Nat. Bank v. Nolan amount of bonds which can be validly
Co., 59 Fed. Rep. 660. In Frances v. issued based on such assessment
Howard Co., 54 Fed. Rep. 487, the rolls." Valley Co. v. McLean, 49 U. S.
court said: " All the decisions of the App. 131, 79 Fed. Rep. 728. In Shaw
supreme court of the United States v. Independent School District, 40
from Dixon Co. v. Field, 111 U. S. 83, U. S. App. 475, 77 Fed. Rep. 277, it was
to Sutcliffe v. Board, 147 U. S. 230, held that the purchaser could not
agree that the purchasers of bonds rely on the recitals when the public
issued by municipalities under au- records showed that the constitu-
thority of laws which limit the tional limit of indebtedness had been
amount of bonds to be issued to a reached.
CHAPTER X.
MUNICIPAL INDEBTEDNESa
§ 184 Power to incur debts.
185. The meaning of indebtedness
186. Contingent obligations.
§ 187. Contracts requiring annual
payments.
188. Anticipation of revenues.
§ 184. Power to incur debts. — A public corporation may
incur a debt whenever it is incident to the exercise of a power
to do some specified thing which it is authorized to do. In the
absence of limitation the amount of the debt which may be
created rests in the discretion of the corporation, but municipal
carelessness and extravagance have led to the general adoption
of constitutional or charter provisions which limit the amount
of legal indebtedness which may be incurred. This limit is de-
termined in various ways, but ordinarily the corporation is
prohibited from becoming indebted in an amount greater than
a specified percentage on the assessed valuation of the real
property within its limits. When such provisions are directed
to the legislature they have no effect upon the powers already
possessed by corporations. But when directed to the munici-
palities they repeal all charter provisions inconsistent there-
with.1 A person dealing with such bodies must take notice of
limitations upon their power to contract debts,2 and must de-
termine for himself whether the legal limit has been reached.*
§ 185. The meaning of indebtedness. — Such prohibitions are
generally held to apply to indebtedness of all kinds, express
and implied, current and bonded.4 But the authorities are far
1 List v. Wheeling, 7 W. Va. 501; lantic City W. W. Co. v. Read, 50
East St Louis v. People, 124 111. 655, N. J. L. 665.
23 Am. & Eng. Corp. Cas. 408. * Litchfield v. Ballou, 114 U. & 190;
2 People v. May, 9 Colo. 80, 13 Am. Lake Co. v. Rollins, 130 id. 662, 26
& Eng. Corp. Cas. 307; French v. Am. & Eng. Corp. Cas. 465. Obliga-
Burlington, 42 Iowa, 614 tions payable out of a particular
8 La Porte v. Gamewell Fire Alarm fund and for which the fund only is
Tel. Co., 146 Ind. 466,' 45 N. E. Rep. liable do not create a debt against
688; Law v. People, 87 I1L 385; At- the corporation. Quill v. Indianap-
170
POWERS OF PUBLIC CORPORATIONS.
[§ 185.
from uniform. In some states it includes compulsory obliga-
tions incurred for books and records which the county is re-
quired by law to purchase,1 while in others it is confined to
such as are voluntarily incurred.2 Again, there is a conflict on
the question whether it includes obligations incurred for the
current expenses of the municipality. In some states a corpo-
ration is not permitted to incur a liability for ordinary current
expenses after the constitutional limit of indebtedness has been
reached.3 Necessity is no excuse for contracting a debt in ex-
cess of the limit.4 Thus, a city which has reached the limit
cannot enter into a valid contract for a supply of water for a
fixed annual amount unless provision is made for the raising of
the money to meet the obligation as it accrues, by taxation.8
A city cannot issue bonds for the purpose of erecting water-
oils, 124 Ind. 292, 7 L. R. A. 681;
Board v. Harrell (Ind., 1897), 46 N. E.
Rep. 124; Baker v. Seattle, 2 Wash.
576. Liabilities arising ex delicto are
not to be included. Bartle v. Des
Moines, 38 Iowa, 414.
1 Barnard v. Knox Co., 105 Mo. 882,
13 L. R. A. 244, reversing Potter v.
Douglas Co., 87 Mo. 240; Lake Co. v.
Rollins, 130 U. S. 662, reversing Rol-
lins v. Lake Co,, 34 Fed. Rep. 845;
Prince v. Quincy, 105 111. 138; Council
Bluffs v. Stewart, 51 Iowa, 385; Mo-
Aleer v. Angell (R. L, 1897), 36 AtL
Rep. 588. In People v. May, 9 Colo. 80,
the court says: "The limitation being
applicable to all debts, irrespective
of their form, it follows that, in de-
termining the amount of the county
indebtedness, county warrants are to
be taken into account, and any war-
rant which increases the indebted-
ness over and beyond the limit fixed
is in violation of the constitution
and void."
2 Barnard v. Knox Co., 37 Fed. Rep.
563, 2 L. R. A, 426, note; Grant Co. v.
Lake Co., 17 Oreg. 453; McCracken v.
San Francisco, 16 Cal. 591; Thomas
v. Burlington, 69 Iowa, 140; Rauch
v. .Chapman (Wash.), 36 L. R. A. 407.
3 Beard v. Hopkinsville (Ky.), 23
L. R. A. 402, and elaborate note;
Prince v. Quincy, 105 111. 138, 44 Am.
Rep. 785; Sackett v. New Albany, 88
Ind. 473, 45 Am. Rep. 467; Saleno v.
Neosho (Mo.), 27 L. R. A. 769; Balti-
more v. Gill, 31 Md. 375; French v.
Burlington, 42 Iowa, 614; Council
Bluffs v. Stewart, 51 id. 385; Appeal
of Erie, 91 Pa. St. 398. Contra, Grant
v. Davenport, 36 Iowa, 396; Corpus
Christi v. Woessner, 58 Tex. 462; Lay-
cock v. Baton Rouge, 35 La. Ann. 475.
In Carter v. Thorson (S. Dak), 24
L. R. A. 734, it was held that a consti-
tutional provision prohibiting " the
incurring of indebtedness, except in
pursuance of appropriations," did
not prevent the legislature from in-
curring or directing the incurring
of indebtedness for the usual and
current administration of state af-
fairs, without having first made an
appropriation for that specific pur-
pose. Hence a contract for doing
the public printing is not "incurring
an indebtedness."
< Sackett v. New Albany, 88 Ind.
473, 45 Am. Rep. 467.
« State v. Atlantic City, 49 N. J. L,
558; Prince v. Quincy, 105 111. 138,44
Am. Rep. 785; Salem Water Co. v.
Salem, 5 Oreg. 30.
§ 185.]
MUNICIPAL INDEBTEDNESS.
171
works under such conditions although it will acquire property
in exchange for said bonds equal in value to the amount of the
bonds and productive of revenue.1 Xor can a city make a
valid contract to rent a market house for a stated rental which
is in excess of the annual revenues received from the market.2
But when a debt already exists a city may issue new bonds for
its payment and for the interest to accrue thereon.3 But if
the proceeds of the new bonds are not used to pay the old bonds
a new debt is created.4 When a judgment has been obtained
1 In Scott v. Davenport, 34 Iowa,
208, the court said: "But the fact
that the property for which the debt
was contracted is valuable, and a
source of profit and revenue, does
not remove or change the character
of the indebtedness. The purchaser,
having become bound to pay, has in-
curred an indebtedness which he
may be compelled to pay. Being
thus bound, he is in debt, no matter
what amount of property he may
have received in consideration for
his obligation,"
- Appeal of Erie, 91 Pa. St. 398.
'Powell v. Madison, 107 Ind. 106
(funding bonds); Palmer v. Helena
(Mont.), 47 Pac. Rep. 209.
« Doon Tp, v. Cummins, 142 U. S.
366; Anderson v. Insurance Co., 88
Iowa, 579. In Burkholtz v. Dinnie
(N. D., 1897), 72 N. W. Rep. 931, it
was held that the indebtedness can-
not be increased beyond the limit,
although the debt is incurred for the
purpose of refunding the indebted-
ness of the municipality. The debt
was temporarily increased, and this
might be permanent, owing to the
loss or diversion of the fund created
by the sale of the refunding bonds.
Chief Justice Corliss said: "We are
unable to discover any sound basis
for the view which, in the teeth of
a declaration that the indebtedness
shall never — i. e., shall not for a day
or an hour — exceed a certain per-
centage of assessed valuation, con-
siders a temporary excess as not
within the prohibition. The fact
that other debts equal in amount are
subsequently paid with the money
does not destroy the fact that the
debt has been for a season increased
beyond the constitutional limit. We
do not wish to be understood as hold-
ing that refunding bonds cannot be
issued to take the place of the old
bonds which have matured. An ex-
change of bond for bond would not
even temporarily increase the in-
debtedness of the city one dollar. It
would be merely the substitution of
one obligation for another. It would
be analogous to the giving of a re-
newal note at a bank. If the action
which the city officials proposed to
take was a mere exchange of new
city bonds for old city bonds, we
would hold such action to be legal
upon the facts in this record. Nor
do we consider it necessary that an
exchange of bond for bond should
be made. We think that the mere
execution of refunding bonds may
be authorized even beyond the debt
limit, and that they may then be
put on the market and sold, on the
condition that they are not to be de-
livered until an equal amount of the
old bonds are surrendered. The res-
olution might provide that, simul-
taneously with the delivery of the
refunding bonds and the payment
of the cash therefor, there should be
at hand an equal amount of the old
bonds, to be then and there extin-
guished by the use of the cash so re-
172
POWERS OF PUBLIC CORPORATIONS.
[§ 186.
upon an obligation not within the prohibition, bonds may be
issued for its satisfaction without increasing the indebtedness
of the municipality.1 When suitable provision has been made
for the discharge of an obligation, or the money is in the treas-
ury to meet it, the drawing of a warrant upon the treasury for
the payment of such obligation or claim does not create a debt.2
The amount of a sinking fund must be deducted from the ap-
parent debt of a city in order to ascertain its total indebted-
ness.3 So park-board certificates secured by mortgage on real
estate and payable out of a fund arising from assessments for
benefits are not a part of the indebtedness of the city.4
§ 186. Contingent obligations. — An obligation payable in the
future is as much a debt as though due immediately.8 The
time when it comes into existence, and not when due, must be
ceived and delivered up to the city
as part of the same transaction. But
the purpose of the city officials is
something radically different from
an exchange or a sale guarded in the
manner specified. Their plan is to
sell the bonds of the city, thus in-
creasing the indebtedness thereof
against the prohibitions of the con-
stitution, and leaving uncertain the
question whether the old debt will
be fully extinguished, or whether a
dollar of it will be paid. The scheme
is to pay the old debt with the pro-
ceeds of the new; but there is no
absolute certainty, although there
may be a probability, that this will
be done. Nothing short of a cer-
tainty that the debt will not be in-
creased permanently will suffice, and
even that will not suffice if it is tem-
porarily augmented beyond the con-
stitutional limit. We admit that
there appear to be some decisions
opposed to our ruling. It can prob-
ably be said that the weight of au-
thority is against our view. See
City of Poughkeepsie v. Quintard,
136 N. Y. 275, 32 N. E. Rep. 764;
Powell v. City of Madison, 107 Ind.
106, 8 N. E. Rep. 31; Board of Com'rs
of Marion Co. v. Board of Com'rs of
Harvey Co., 26 Kan. 181, 201; Opin-
ion of the Justices, 81 Me. 602, 18 Atl.
Rep. 291; Hotchkiss v. Marion, 12
Mont. 218, 29 Pac. Rep. 821; Los
Angeles v. Teed, 112 Cal. 319, 44 Pac.
Rep. 580; Miller v. School Dist. (Wyo.),
39 Pac. Rep. 879; Palmer v. City of
Helena (Mont), 47 Pac. Rep. 209. But
in one of these cases no question of
constitutional prohibition was in-
volved. City of Poughkeepsie v.
Quintard, 136 N. Y. 275, 32 N. E. Rep.
764. In none of the cases was the
inhibition of the fundamental law
so sweeping in terms as ours."
1 Board of Com'rs v. Platt (C. C. A.),
79 Fed. Rep. 567; Sioux City v. Weare,
59 Iowa, 95.
2 Springfield v. Edwards, 84 111. 626.
3 Kelly v. Minneapolis, 63 Minn.
125, 65 N. W. Rep. 115, 30 L. R. A.
281. As to what should be included,
see Wade v. Oakmont, 165 Pa. St.
479; New York Bank v. Grace, 103
N. Y. 313; Thomas v. Burlington, 69
Iowa, 140; Austin v. Seattle, 2 Wash.
667.
* Kelly v. Minneapolis, supra.
6 Law v. People, 87 III 385.
§ 187.] MUNICIPAL INDEBTEDNESS. 173
considered in applying the rule of limitation upon indebted-
ness.1 The character of the obligation as a liability is not
affected by the fact that it is not to be paid until some condi-
tion has been performed by the payee. Thus, where a city
obligated itself to pay a sum of money upon the completion of
a certain work, the court said: "It cannot be said that the in-
debtedness did not come into being until the work was com-
pleted and accepted by the city. The city bound itself to pay
for the work when it should be completed, and it could be com-
pelled to do so if the work should be done according to con-
tract."2 In another case it was said :s "It is believed not only
to apply to a present indebtedness, but also to such as is pay-
able on a contingency at some future day, or which depends
on some contingency before a liability is created. But it must
appear that such contingency is sure to take place irrespective
of any action taken or option exercised by the city in the future.
That is, if a present indebtedness is incurred, or obligation as-
sumed, which without further action on the part of the city
has the effect to create such an indebtedness at some future
day, such are within the inhibition of the constitution. But if
the fact of the indebtedness depends upon some act of the city,
or upon its volition, to be exercised or determined at some fut-
ure date, then no present indebtedness is incurred, and none
will be until the period arrives and the required act or option
is exercised, and from that time only can it be said there exists
an indebtedness."
§ 187. Contracts requiring annual payments. — Some very
difficult questions have arisen under these limitations upon
indebtedness in connection with contracts which require the
corporation to pay a fixed annual or monthly sum during a
period of years for water, lighting, the disposal of sewage and
such other purposes. Many of the authorities are in conflict
with the principles stated in the preceding section. But care-
ful attention must be given the particular charter under con-
!La Porte v. Gamewell F. A. Tel. L. R, A. 402, with elaborate note on
Co., 146 Ind. 466, 45 N. E. Rep. 588. what constitutes indebtedness.
2Culbertson v. Fulton, 127 111. 80; 3Burlington Water Co. v. Wood-
Springfield v. Edwards, 84 III 626; ward, 49 Iowa, 62. But see Keihl v.
Beard v. Hopkinsville, 95 Ky. 239, 23 City of South Bend, 76 Fed. Rep. 921.
POWERS OF PUBLIC CORPORATIONS.
[§ 1ST.
sideration, as the right may be determined by provisions relat-
ing to taxation and appropriations. The supreme court of
Michigan said:1 "There can be no doubt, in our opinion, that
this whole contract obligation is a liability to the full extent
of the thirty years' rental. And it is equally clear that all un-
paid sums will be aggregated until paid." The contract was
therefore held void. The same conclusion has been reached in
Ohio,2 New Jersey,3 Oregon,4 Montana5 and Minnesota.6 On
the other hand, Illinois,7 Pennsylvania,8 Massachusetts,9. Iowa,10
New York,11 Indiana,12 Oklahoma,13 California14 and Missouri15
hold such contracts not in violation of the prohibition. " We
base our views," says the supreme court of California, " upon
the conviction that at the time of entering into the contract
no debt or liability is created for the aggregate amount of the
iNiles W. W. v. Niles, 59 Mich. 312.
2 State v. Medbery, 7 Ohio St. 523.
8 Atlantic City W. W. v. Read, 49
N. J. L. 558, 50 N. J. L. 665.
* Salem W. W. v. Salem, 5 Oreg. 29.
5 Davenport v. Kleinschmidt, 6
Mont. 502.
6Kichli v. Minn. Brush Electric
Co., 58 Minn. 418.
7 East St. Louis v. East St. Louis
Gas L. Co., 98 III 415, 38 Am. Rep. 97.
« In re Erie's Appeal, 91 Pa. St. 398;
Wade v. Oakmont Borough, 165 Pa.
St. 479; Brown v. City of Cory, 175
Pa. 528, 34 Atl. Rep. 854.
9Weston v. Syracuse, 17 N. Y. 110.
10 Smith v. Dedham, 144 Mass. 177.
" Grant v. Davenport, 36 Iowa, 896.
12 La Porte v. Gamewell F. A. Tel.
Co., 146 Ind. 466, 45 N. E. Rep. 588;
Crowder v. Town of Sullivan, 128
Ind. 486, 28 N. E. Rep. 94; Valparaiso
v. Gardner, 97 Ind. 1. See Indian-
apolis v. Wann, 144 Ind. 175, 4 N. E.
Rep. 901, 81 L. R. A. 743.
13 Territory v. Oklahoma, 2 Okla.
158.
i* McBean v. Fresno (CaL, 1897), 31
L. R. A. 794.
^Lamar Water & E. L. Co. v. City
of L.amar, 128 Mo. 188, 32 L. R. A. 157.
In Saleno v. City of Neosho, 127 Mo.
627, 27 L. R. A. 769, the court said:
"In construing the words used in
that instrument, in the absence of
some restriction placed upon their
meaning, they must be given such
meaning as is generally accorded to
them. A debt is understood to be an
unconditional promise to pay a fixed
sum at some specified time, and is
quite different from a contract to be
performed in the future, depending
upon a condition precedent which
may never be performed, and which
cannot ripen into a debt until per-
formed. Here the hydrant rental
depended upon the water supply to
be furnished to defendant, and if not
furnished, no payment could be re-
quired. ... A number of cases
have been cited by defendant. The
weight of decisions, and which we
regard to be the proper view of the
question, is that such a contract is
not prohibited, even if the total
amount which the corporation will
have to pay will, with the other
debts of the municipality, exceed the
statutory or constitutional limit.
Only the annual payment of the
year when the calculation is made
should be considered as a debt."
Simonton, Municipal Bonds, § 60.
§ 188.] MUNICIPAL INDEBTEDNESS. 175
instalments to be paid under the contract, but that the sole
debt or liability created is that which arises from year to year
in separate amounts as the work is performed." TVhere a city
contracted for a fire-alarm system at a time when it was in-
debted beyond the constitutional limit and had no money in
the treasury at the time when the contract was made or the
work accepted, the contract was held to create a liability
within the prohibition, notwithstanding the fact that there was
money in the treasury at the time fixed for payment.1
§ 188. Anticipation of revenues. — In some states a munici-
pality which has reached its constitutional limit of indebted-
ness is permitted to anticipate the collection of the revenues
appropriated to its use by drawing warrants against taxes
levied but not collected. The result is a substantial appropria-
tion and assignment of the amount drawn to the holder of the
warrant. In order that such warrants may not increase the
indebtedness of the municipality it is necessary that the tax
should not only be levied but that the warrant be drawn on
the particular fund and be in legal effect sufficient to discharge
the city.2
1 In La Porte v. Gamewell F. A. TeL fore no violation of the constitution.
Co., supra, the court said : " When But if the indebtedness of the city
a municipal corporation contracts already equals or exceeds the consti-
for a usual and necessary thing, such tutional limit, and the current reve-
as water or light, and agrees to pay nues are not sufficient to pay said
for it annually or monthly as fur- indebtedness when it comes into ex-
nished, the contract does not create istence, including other expenses for
an indebtedness for the aggregate which the city is liable, an indebted-
sum of the instalments, since the ness is thereby created, and there
debt for each year or month does is a violation of the constitution."
not come into existence until it is Walla Walla Water Co. v. City of
earned. The earning of each year's Walla Walla, 60 Fed. Rep. 957; Keihl
or month's compensation is essential v. City of South Bend, 76 Fed. Rep.
to the existence of the debt If the 921.
city can pay this indebtedness when 2 State v. Parkinson, 5 Nev. 17;
it comes into existence, without Springfield v. Edwards, 84 III 626;
exceeding the constitutional limit, Law v. People, 87 111. 385; French v.
there is no indebtedness, and there- Burlington, 42 Iowa, 614.
BOOK III.
OF THE MODE AND AGENCIES OF CORPORATE ACTION.
CHAPTER XL
OF THE MANNER OF EXERCISING CORPORATE POWER.
§ 189. Charter provisions.
190. Meaning of terms.
191. Statutory directions.
§ 192. Procedure in the enactment
of ordinances.
193. Where no mode is prescribed.
194. Illustrations.
§ 189. Charter provisions. — The charter ordinarily provides
for the various methods by which the corporation shall exercise
the powers conferred upon it. Certain powers may be exer-
cised through designated boards or officials without reference
to the city council. But as a general rule, all powers, whether
police or contractual, are exercised through the body in which
is vested the legislative function.1 The formal expression of
the will of this body is evidenced by an ordinance or resolution.2
§ 190. Meaning of terms. — The words "ordinance" and
" by-law " are practically synonymous,3 although in the United
States the word " by-law " is ordinarily limited in its applica-
cation to the law of private corporations.4 An ordinance is "a
local law prescribing a general and permanent rule," * while a
iTerre Haute v. Lake, 43 Ind. 480; N. J. Eq. 112. An ordinance is "the
Saxton v. St. Joseph, 60 Ma 153. law of the inhabitants of the corpo-
2 Day v. Jersey City, 19 N. J. Eq. rate place or district made by them-
413; Creighton v. Marson, 27 CaL selves, or the authorized body, in
613; Alton v. Mulledy, 21 111. 76. It distinction from the general law of
must be by a vote embodied in some the country or the statute law of the
distinct and definite form. Schumm particular state." 1 Dillon, Mun.
v. Seymour, 24 N. J. Eq. 143. Corp., § 307; Willcox, Corp. 73; 2 Kyd,
3 Bills v. Goshen, 117 Ind. 221, 8 L. Corp. 95, 98; Commonwealth v. Tur-
R. A. 261; National Bank of Com- ner, 1 Cush. (Mass.) 49&
merce v. Grenada, 44 Fed. Rep. 262. * Citizens' Gas & Mining Co. v. Ell-
4 Kepner v. Commonwealth, 40 Pa. wood, 114 Ind. 836.
St. 124; Taylor y. Lambertville, 43
§§ 191, 192.] MAXNER OF EXERCISING CORPORATE POWER. 177
resolution is of a special or temporary character and is ordi-
narily enacted with less formality.1 Comparing the different
terms Chief Justice Shaw said:2 " ' Eegulation ' is the most
general of them all, meaning any rule for the ordering of affairs
public or private; and it thus becomes the generic term from
which all the others are defined, specified and differentiated.
* Ordinance ' is the next most general term, including all forms
of regulation by civil authority, even acts of parliament. With
us its meaning is usually confined to corporation regulations.
Ordinances are all sorts of rules and by-laws of municipal cor-
porations. 'Resolution ' is only a less solemn or less usual form
of an ordinance. It is an ordinance still if there is anything
intended to regulate the affairs of a corporation."
§ 191. Statutory directions. — "Where a power is conferred by
statute and the manner of its exercise is prescribed, all other
modes are impliedly prohibited.8 Such directions must be
strictly and literally complied with, as they are in effect limit-
ations upon the grant.4
§ 192. Procedure in the enactment of ordinances. — Statutory
directions as to the procedure to be observed in the enactment
of ordinances are mandatory, and if not complied with the ordi-
nance is void.5 But if the mode of procedure is left to the
1 Blanchard v. Bissell, 11 Ohio St. their power on any given subject
96; State v. Bayonne, 35 N. J. L. 335; can be exercised is prescribed by
Kepner v. Commonwealth, 40 Pa. St. their charter the mode must be fol-
124. lowed. The mode in such cases con-
2 Common wealthy. Turner, 1 Gush, stitutes the measure of the power."
493; Kepner v. Commonwealth, 40 An ordinance is not invalidated by
Pa. St. 130. the failure of the clerk to comply
3 Des Moines v. Gilchrist, 67 Iowa, with a statute requiring him to
211; Zottman v. San Francisco, 20 place his certificate on the journal
CaL 96, 81 Am. Dec. 96. of the proceedings and on the ordi-
4 State v. Newark, 25 N. J. L. 399; nance, when all other requirements
Iowa Land Co. v. County of Sac, 39 are complied with. Brohme v. Mon-
lowa, 149; Mayor v. Porter, 18 Md. roe, 106 Mich. 401, 64 N. Y. 204.
284, 79 Am. Dec. 686; Ferguson v. Hal- 6 Jacksonville v. Ledwith, 26 Fla.
sell, 47 Tex. 42; Sadler v. Eureka Co., 163, 9 L. E. A. 69; Altoona v. Bow-
15 Nev. 44; Glass Co. v. Ashbury, 49 man, 171 Pa. St 307; Bloom v. Xenia,
CaL 571; McCoy v. Briant, 53 CaL '62 Ohio St. 461; Welkerv. Potter, 18
248. In Zottman v. San Francisco, Ohio St. 85; Blanchard v. Bissell, 11
20 CaL 1J6, 81 Am. Dec. 96, Field, C. J., Ohio St. 101; Cantril v. Sainer, 59
said: "When the mode in which Iowa, 26; Herzo v. San Francisco, 33
12
178
MODE AND AGENCIES OF COliPOKATE ACTION.
[§ 193.
municipal body it may be determined by an ordinance, and the
mode so provided must be observed in the enactment of all
ordinances.1 There seems to be a tendency toward allowing
municipalities to provide their own rules of procedure.2
§ 193. Where no mode is prescribed. — When a power exists
and the manner of exercising it is not declared, the council
may proceed either by way of ordinance or resolution.3 As a
general rule, however, it may be said that all general and per-
manent acts should be in the form of ordinances,4 while minis-
terial acts may be by resolution.5 The difference is not so much
in the nature of the act as in the manner of enactment. Both
are legislative acts; and when it appears that a resolution' was
passed with all the formalities required for an ordinance, it is
generally held valid as an ordinance.6 "Where a contract which
Cal. 134; Smith v. Emporia, 27 Kan.
628; State v. Newark, 25 N. J. L. 399;
Danville v. Shelton, 76 Va. 325. As
to requirement of a majority vote,
see 111. T. & Sav. Bank v. Arkansas
City, 76 Fed. Rep. 271, 34 L. R, A.
518. If in the charter it is required
that there shall be a publication of
an ordinance between the second
and third reading, such publication
may be shown aliunde the records
of the council State v. New Bruns-
wick, 58 N. J. L. 255. See ch. XIL
1 Swindell v. State, 143 Ind. 153.
2 See Smith v. People, 162 III 534,
88 L. R. A. 470.
8 Crawfordsville v. Braden, 130 liid.
149, 30 Am. St. Rep. 214, 14 L. R. A.
268; Butler v. Passaic, 44 N. J. L. 171;
State v. Jersey Gity, 27 N. J. L. 493;
Green v. Cape May, 41 N. J. L. 46;
Burlington v. Den ni son, 42 N. J. L.
165; Quincy v. Chicago, etc. R. Co.,
92 111. 23; Indianapolis v. Imbery, 17
Ind. 175; First Municipality v. Cut-
ting, 4 La. Ann. 336; Halsey v.
Rapid Tr. Co., 47 N. J. Eq. 880, 20
AtL Rep. 859; Robinson v. Franklin,
1 Humph. 156, 34 Am. Dec. 625 and
note; McGavock v. Omaha, 40 Neb.
64, 58 N. W. Rep. 543.
4 A common council should act by
ordinance in organizing a fire de-
partment, in promoting a plan of
government for it, or in prescribing
the manner of the election of its
officers and their duties. But it may
act by resolution in purchasing the
fire-engine. Green v. Cape May, 41
N. J. L. 46. See the following cases,
which, however, are controlled by
statute: City of Paterson v. Barnett,
46 N. J. L. 62; Grimmell v. Des
Moines, 57 Iowa, 144.
5Somer v. Philadelphia, 35 Pa. St
231; San Francisco Gas Co. v. San
Francisco, 6 CaL 190.
eSheuck v. Borough, 181 Pa. St.
191; Tipton v. Norman, 72 Mo. 380;
Rumsey Mfg. Co. v. Schell City, 21
Mo. App. 175; Gas Co. v. San Fran-
cisco, 6 Cal. 190; Somer v. Phila-
delphia, 35 Pa. St 231; Drake v. Hud-
son River R. Co., 7 Barb. (N. Y.) 539;
Municipality v. Cutting, 4 La. Ann.
335. In City of Delphi v. Evans, 36
Ind. 90, the court said: " We .do not
regard the name or form of the order
as of the substance of the thing. It
may be done by an ordinance, by a
motion or resolution; but whatever
mode may be adopted, it must com-
ply with the requirements of the
charter." A resolution to have the
§ 194.] MANNER OF EXERCISING CORPORATE POWER. 179
the municipality is authorized to enter into is not required to
be made in the form of an ordinance, it may be by resolution.1
But an act which the charter specifically requires to be done
by ordinance cannot legally be done by resolution,2 although
one that is authorized to be done by resolution may be done by
ordinance.1
§ 194. Illustrations. — An ordinance has been held necessary
to authorize the grading of a street,4 to change the width of a
sidewalk,5 to appoint a commission to assess damages resulting
from the widening of a street,1 to fix the compensation of offi-
cers,7 to provide for the payment of license fees,8 to authorize
the specific improvement of city property under a general
power to pass all proper and necessary laws providing for im-
provements,9 or to direct the construction of a public work
generally.18
On the other hand, the council may by resolution authorize
the construction of a sewer,11 remove the clerk of the corpora-
tion,12 authorize the opening of a new street," the purchase of
fire apparatus,14 the acceptance of a dedication,13 the improve-
ment of a street,16 the laying of a tax for a specific pur-
effect of a law must be passed with the power to pass ordinances to reg-
all the formalities required in the ulate the sidewalks and streets,
enactment of a law. Thus, money • State v. Bergen, 33 N. J. L. 39, 72,
cannot be appropriated by a joint 7 Central v. Sears, 2 Colo. 588;
resolution when the constitution re- Smith v. Com., 41 Pa. St. 335.
quires that no money can be drawn 8 See People v. Cratty, 93 HL 181.
except in pursuance of appropria- 9 Zottman v. San Francisco, 20 CaL
tions made by law. May v. Rice, 91 96.
Ind. 546; Burritt v. Commissioners 10 Indianapolis v. Miller, 27 Ind. 394.
of State Contracts, 120 EL 322. » State v. Jersey City, 27 N. J. L.
1 Illinois Trust & Sav. Bank v. 49&
Arkansas City, 76 Fed. Rep. 271. « Landow West v. Burtram, 26 Ont
2 Cape Girardeau v. Forgen, 30 Ma Rep. 161.
App. 551. A resolution is not the ls Somer v. Philadelphia, 35 Pa. St.
legal equivalent of an ordinance. 231.
City of Paterson v. Barnett, 46 N. J. ** Green v. Cape May, 41 N. J. L. 45.
L 62. w State v. Elizabeth, 37 N. J. L. 432.
* Los Angeles v. Waldren, 65 CaL 16 Indianapolis v. Imbery, 17 Ind.
283. 175, where the court said: "The
4 State v. Bayonne, 35 N. J. L. 335. manner in which the order or deter-
5 Cross v. Mayor of Morristown, 18 mination of the council that a given
N. J. Eq. 305, decided under a stat- street or alley, or part thereof, shall
ute granting to the common council be improved, is to be expressed, is
180 MODE AND AGENCIES OF COKPOKATE ACTION. [§ 194.
pose,1 or confirm the past acts of agents of the municipality.2 So,
when an ordinance requires a license and authorizes the coun-
cil to fix the license fee as it shall from time to time think
proper, the fee may be fixed by resolution.8 No rules of any
particular value can be laid down on this subject, as each case
must be determined after a careful examination of the charter
under which the council is acting.
not pointed out in the paramount 2 Egan v. Chicago, 5 III App. 70.
law." 8City of Burlington v. Putnam
1 It is an act of " a temporary char- Ins. Co., 81 Iowa, 102; Arkadelphia
acter and prescribes no permanent Lumber Co. v. City of Arkadelphia,
rule of government." Blanchard v. 56 Ark. 370, 19 S. W. Rep. 1053. See
Bissell, 11 Ohio St. 103. People v. Cratty, 93 III 181,
CHAPTER XIL
OF THE FORM AND ENACTMENT OF ORDINANCES.
195. The form.
196. The title.
197. The enacting clause,
198. The penalty.
199. Need not recite authority.
200. Council meeting.
201. Introduction — Notice.
202. Readings.
203. Suspension of the rules.
204. Presumption as to regularity.
205. Signing.
206. Approval.
207. Approval — Illustrations.
§ 20& The executive veto.
209. Necessity for publication.
210. Publication, when directory.
211. Ultra vires acts of officials.
212. Manner of publication.
213. Designation of paper.
214. Location of paper — " Printed
and published in the city."
215. Manner and sufficiency.
216. Distinction between publica-
tion and notice.
217. Time and period.
218. Proof of publication.
§ 195. The form. — An ordinance should properly take the
form of a statute, although this is not essential to its validity,
as it is sufficient if it contains the substance of an ordinance
and is properly enacted.1 There should be a title, an enacting
clause, a repealing clause, and a provision fixing the time when
the ordinance will take effect. Certain requirements as to
form are commonly found in charters and statutes.
§ 196. TJie title. — It is generally provided that the ordinance
shall relate to but one subject, which shall be expressed in the
title. Such provisions, like those found in constitutions relat-
ing to statutes, are intended to guard against fraud and surprise
and are governed by the same rules of construction.2 Constitu-
tional provisions with reference to the title of a statute do not
apply to municipal ordinances unless expressly made applicable
thereto.3
i Rumsey Mfg. Co. v. Schell City,
21 Mo. App. 175.
»Esling's Appeal, 89 Pa. St. 205;
State v. Cantiney, 34 Minn. 1; Berg-
man v. St. Louis, etc. R. Co., 88 Mo.
678; Stebbins v. Mayor, 38 Kan. 573,
16 Pac. Rep. 745. Such provisions are
mandatory. Missouri Pac. R. Co. v.
City of Wyandotte, 38 Kan. 573, 23
Pac. Rep. 950. The construction of
the 'ordinance cannot be controlled
by the title. State v. Benerly, 45
N. J. L. 289.
3 In re Haskell, 112 CaL 412, 32 L.
R. A. 527; Tarkio v. Cook Co., 120
Mo. 1, 41 Am. St Rep. 678; People v.
182 MODE AND AGENCIES OF CORPORATE ACTION. [§§ 197, 198.
§ 197. The enacting clause. — An ordinance should show on
its face that it was passed by a body having authority to pass
it.1 Properly there should be an enacting clause, as "Be it en-
acted by the Common Council of ." But the absence of
such clause is not fatal, even when required by the charter, as
the record of the passage of the ordinance is a sufficient decla-
ration that it is the act of the council.2
§ 198. Penalty. — An ordinance must contain provisions for
a definite penalty, as this cannot be left to the discretion of
the court.* This penalty must be reasonable in amount in view
of the nature of the offense.4 It is sufficiently definite if it
fixes the maximum amount of the penalty, as "it is in har-
mony with our system of jurisprudence to allow the court or
jury trying the cause to fix the penalty within the bound pre-
scribed, with the right to vary in amount according to the
gravity of the offense." 5 It has been held that the precise pen-
alty for the infraction of a police ordinance must be provided
for in the ordinance, and that an ordinance which provides
Wagner, 86 Mich. 594, 24 Am. St. Rep.
141; People v. Hanrahan, 75 Mich.
611, 4 L. R A. 751. See Re Thomas,
53 Kan. 659, 37 Pac. Rep. 171.
i Hawkins v. Huron, 2 U. P. C. C.
P. 72.
* People v. Murray, 57 Mich. 396;
Cape Girardeau v. Riley, 52 Mo. 424;
People v. Lee, 112 111. 112. A charter
clause requiring that an ordinance
shall contain an enacting clause is
directory only, and its omission will
not invalidate an ordinance. Tarkio
v. Cook, 120 Mo. 1, 25 S. W. Rep. 202,
41 Am. St. Rep. 678; St. Louis v.
Foster, 52 Mo. 313. Contra, Galves-
ton, etc. R Co. v. Harris (Tex. Civ.
App.), 36 S. W. Rep. 776. The omis-
sion of the name of the town from
the enacting clause will not invali-
date the ordinance if it appears from
the title that it was an ordinance of
the particular town and is shown
that it was regularly passed and in
other respects conforms to the stat-
utory requirements. State v. Foun-
tain, 14 Wash. 236. The authorities
on the question of the effect of the
omission of an enacting clause from
a statute are conflicting. In State v.
Patterson, 98 N. C. 660; State v. Rog-
ers, 10 Nev. 250; Burritt v. Commis-
sioners, 120 111. 322, and May v. Rice,
91 lud. 46, it is held that the constitu-
tional requirement of an enacting
clause is mandatory. McPherson v.
Leonard, 29 Md. 377, and Cape Girar-
deau v. Riley, 52 Mo. 424, hold such a
provision directory only. See, also,
Watson v. Carey, 6 Utah, 150, and
Hill v. Boy land, 40 Miss. 618.
8 State v. Worth, 95 N. C. 615;
Bowman v. St. John, 43 111. 337;
Melick v. Washington, 47 N. J. L.
254; State v. Zigler, 32 N. J. L..264;
In re Frazee, 63 Mich. 396.
4 In re Frazee, 63 Mich. 896; Mo-
bile v. Yuille, 8 Ala. 137; Re Ah Yon,
88 Cal. 99, 11 L. R, A. 408.
6 Bills v. Goshen, 117 Ind. 221, 3 L.
R A. 261. And see Atkins v. Phil-
lips, 26 Fla, 281, 10 L. R A, 15&
§ 199.] FORM AND ENACTMENT OF ORDINANCES. 183
that a justice of the peace may impose a penalty between two
specified limits is invalid.1 It is sometimes provided that con-
viction for the violation of an ordinance shall work a forfeiture
of a license. It has been recently held that a city cannot enact
such an ordinance, because it would operate as an extinguish-
ment of a right which can only be legally extinguished by the
city council. Thus, an ordinance which provided that a con-
viction of a violation of its provisions should operate as a revo-
cation of a liquor license was held to be an unauthorized dele-
gation of authority to revoke a license, which by the charter
was conferred exclusively upon the city council.2 But such an
ordinance was sustained in Minnesota without reference to this
objection. It was there held that the provision for the revoca-
tion of the license was not a part of the penalty, and did not
change the grade of the offense. It was held that the granting
of the license was a mere privilege, and that the provision in
the charter that conviction of the licensee for a violation of the
liquor ordinance should work a revocation was valid. The
court said:1 "While the revocation by the court follows con-
viction as a consequence of the violation of the ordinance, it
has no more the purpose or effect of punishment than if the
license were revoked by the mayor or city council, neither of
whom has power to impose punishment for the offense. There
is a plain distinction between the withdrawal of a special privi-
lege, which has been abused, the termination of a mere license,
and the penalty which the law imposes as a punishment for
crime. The constitutional provision limiting the jurisdiction of
justices of the peace by the measure of the ' punishment' which
may be imposed has no reference to any such incidental conse-
quences." 4
§ 199. Need not recite authority. — An ordinance need not
recite the authority under which it is enacted.5 Nor need it
recite the fact of compliance with conditions precedent to the
right to enact the ordinance.6 Where the authority is to pass
1 State v. Ocean Grove Camp Meet- 8 Methodist R Church v. Baltimore,
ing Ass'n, 57 N. J. L. 110, 35 Atl. Rep. 6 Gill, 391, per Dorsey, C. J.; Com. v.
794. Fahey, 5 Cush. 408.
2State v. Rahway, 58 N. J. L. 578. 6Cronin v. People, 83 N. Y. 318;
» State v. Harris, 50 Minn. 128. Coates v. New York, 7 Cow. 585 ; Rex
4 State v. Larson, 40 Minn. 62. v. Harrison, 3 Burr.
164: MODE AND AGENCIES OF CORPORATE ACTION, [§§ 200-202.
an ordinance if found necessary the ordinance need not recite
the necessity,1 unless the charter requires it to be so stated.2
§ 200. Council meeting. — A valid ordinance can only be en-
acted at a legally convened meeting of a properly constituted
council or legislative body vested with authority to pass the
same and acting in accordance with statutory formalities.8
§ 201. Introduction — Notice. — Where the charter provides
that an ordinance must be introduced at a previous meeting it
cannot be materially amended and passed at the subsequent
meeting; the amendment must have been previously intro-
duced.4 Nor under such provision can an ordinance be passed
at an adjourned meeting.5
§ 202. Readings. — A provision requiring every ordinance to
be read at three different meetings before its final passage is
mandatory.6 A reading by the title for at least one of the
three readings is a sufficient compliance with such a require-
!Stuyvesant v. Mayor, 7 Cow.
(N. Y.) 588; Young v. St. Louis, 47
Mo. 492; Kiley v. Forsee, 57 Mo. 390;
Platter v. Elkhart Co., 103 Ind. 360.
2 Hoyt v. East Saginaw, 19 Mich. 39.
8 County of San Luis Obispo v.
Hendricks, 71 Cal. 242; Jacksonville
v. Ledwith, 26 Fla. 163, 9 L. R. A. 69.
The rules of parliamentary law need
not be observed unless required by
the charter. McDonald v. State, 80
Wis. 411; McGraw v. Whitson, 69
Iowa, 348; St. Louis, etc. Co. v. Gill,
54 Ark. 105, 11 L. R A. 452.
4 State v. Bergen, 33 N. J. L. 39. In
State v. Jersey City, 34 N. J. L. 429,
the court said: "The object of the
provision requiring such previous in-
troduction would be wholly frus-
trated if an ordinance could be so
materially amended and passed at
the same meeting, and its sanction
might in all cases be evaded under
the guise of an amendment See
State v. City of Hudson, 29 N. J. L.
475. For effect of an indefinite post-
ponement, see Zeiler v. Central R.
Co., 84 Md. 304, 34 L. R. A. 469.
5 "An adjourned meeting is a con-
tinuation of the same meeting, and
at such adjourned meeting the coun-
cil may do any act which might
have been done if no adjournment
had taken place. The meeting of
May 2d, at which the ordinance was
introduced, was not a meeting pre-
vious to that of May 9th, at which it
was passed, but a continuation of
the same meeting; and as the ordi-
nance could not have been passed
on May 3d, neither could it be passed
on May 9th." Staates v. Washington,
44 N. J. L. 605.
6 Weil v. Kerfield, 54 Cal. 111. But
see Barton v. Pittsburgh, 4 Brew.
(Pa.) 373. The two-thirds of the
members required to dispense with
a regular reading means two-thirds
of the members voting if they are
not less than a majority which con-
stitutes a quorum. Zeiler v. Central
R Co., 84 Md. 304, 34 L. R. A. 469.
§§ 203-205.] FOKM AND ENACTMENT OF ORDINANCES. 185
ment.1 A newly-constituted council may take up an ordinance
which was read twice in the preceding council, give it a third
reading and pass it.2 A reading may be at a special or ad-
journed meeting.' Where a charter requires an ordinance to
be published for a certain time and in a certain manner be-
tween its second and third readings, it cannot lawfully be
amended in any material respect and read again without the
vote required by the charter.4 An ordinance which requires
that all ordinances shall be read three times before being passed
and that no ordinance shall be read the third time and passed
on the same day on which it was introduced cannot be repealed
by a mere majority vote.5
§ 203. Suspension of the rules. — All provisions regulating
the passage of an ordinance under a suspension of the rules
must be strictly observed. When the rules are so suspended
but one ordinance can be passed under such suspension.6
§ 204. Presumption as to regularity. — All meetings of the
council are presumed to be regularly conducted. Thus, where
it is the duty of the mayor to preside at a council meeting, it
will be presumed that he was present and presided.7
§ 205. Signing.— The signing of an ordinance by a clerk of
the council is a ministerial act, and if he refuses to comply
with the requirement the presiding officer may appoint a deputy
to sign the same.8 Nor is the signature of the mayor generally
necessary to the validity of an ordinance which has been regu-
larly passed and recorded.9 But a statute may, by its express
terms, make the mayor's signature essential to the validity of
the ordinance. But a requirement that the mayor shall au-
1 State v. Camden, 58 N. J. L. 515, 8 Preston v. Manvers, 21 U. G Q. B.
83 AtL Rep. 846. 626.
2 McGow v. Whitson, 69 Iowa, 348. 9 Martindale v. Palmer, 52 Ind. 411 ;
»Cutcamp v. Utt, 60 Iowa, ,156. State v. Henderson, 38 Ohio St 644.
4 State v. Newark, 30 N. J. I* 303. It is sometimes expressly provided
* Swindell v. Moxey, 143 Ind. 153, that 'if the mayor neglects or ref uses
42 N. E. Itep. 528. to sign the ordinance it shall become
•Bloom v. Xenia, 32 Ohio St. 460. a law without his signature. Saleno
• Martin v. State, 23 Neb. 371, 36 v. Neosho, 127 Ma 627, 27 K R. A.
N. ^Y. Rep. 554, Maxwell, C. J., dis- 679, 48 Am. St Rep. 653,
sentin?.
186 MODE AND AGENCIES OF CORPORATE ACTION. [§ 206.
thenticrte all ordinances by his signature is merely directory.1
A direction in a city charter that a bill shall be signed in
open session is mandatory.2 Under a statute providing that
" no bill shall become a law until the same is signed by the
president of the board of aldermen or the mayor," and that
" the mayor shall preside at all meetings of the board of alder-
men," signing by the mayor as such only, is sufficient.3 When
an ordinance is required to be signed by the presiding officer
and attested by the clerk, the defect cannot be remedied by
motion.4
§ 206. Approval. — The requirement of the executive approval
must be distinguished from that of signing. Such approval is
generally made essential to the validity of an ordinance, and
when such is the case all proceedings under an ordinance which
has neither been approved nor passed over a veto are void.5
"Whenever, either by constitutional or legislative requirement,
the president of the United States, the governor of a state or
the mayor of a city is required to approve an act of congress,
or of a legislature, or of a common council, the word ' approve '
means more than the unexpressed mental acquiescence of the
individual in the propriety of what has been done; it means
that the officer, in his official capacity as the guardian of the
interests of the community, having in view its welfare, and not
his personal wish or advantage, shall consider the proposed
legislation and determine that it is proper, and make that fact
known to all men with absolute certainty by some visible, un-
mistakable and enduring mark, to wit, by written declaration
attested by his signature." 6 Where the charter provides that
the approval of the mayor shall be by his signature, his ap-
proval cannot be shown in any other way.7 It has been held
1 Blanchard v. Bissell, 11 Ohio St. 4 Bills v. City of Goshen, 117 Ind.
96; Stevenson v. Bay City, 26 Mich. 221, 20 N. E. Rep. 115.
44; Martindale v. Palmer, 52 Ind. 411 ; » People v. Schroeder, 76 N. Y. 160;
McKenzie v. Wooley, 39 La. Ann. Dey v. Jersey City, 19 N. J. Eq. 414.
944; Opelousas v. Andrus, 37 La. Necessity of approval of order or
Ann. 699. resolution. Shaub v. Lancaster, 156
2 Barber Asphalt Pav. Co. v. Hunt, Pa. St. 362, 21 L. R. A. 691.
100 Mo. 22, 18 Am. St. Rep. 530. 6New York, etc. R. Co. v. City of
8 Becker v. Washington, 94 Mo. Waterbury, 55 Conn. 19, per Par-
375. See Worth v. Springfield, 78 dee, J.
Mo. .108. ' "It is enough to say . . . that
§§ 207, 208.] FGKM AND ESACIMEXT OF OBDINANCES. 167
there must be a formal and literal presentation for approval
or veto, and that a requirement, therefore, cannot be waived
by the mayor.1 The express charter requirement that the ordi-
nance shall be submitted to the mayor before it becomes law is
mandatory.2 And if the statute prescribes the manner in which
the measure shall be approved, the approval in that manner
cannot be dispensed with. Though the mayor puts the resolu-
tion, declares it adopted, and in fact signs and approves it, this
is not in such a case sufficient.8
§ 207. Approval — Illustrations. — Where the council has
power to pass " by-laws, ordinances, resolutions and regula-
tions/' and the charter requires that " by-laws and ordinances "
shall be approved by the mayor, the requirement extends to
resolutions.4 But a provision requiring all ordinances and res-
olutions to be presented to the mayor for his approval does not
apply to the appointment of the officers of the council.5 It is
sufficient if the ordinance be approved by the "acting president
of the board of aldermen," in the mayor's absence, where it is
provided by statute that such officer shall for the time being
perform the duties of mayor, with all his rights, powers and
jurisdiction.6
§ 208. The executive veto. — "When an ordinance is vetoed
there can be but one reconsideration;7 and where the charter
provides that " at the next meeting of the council after a dis-
approval by the mayor it shall proceed to reconsider the reso-
lution,", it cannot be postponed to a subsequent meeting." 8
the charter provides but one mode 2 Bubridge v. Astoria, 25 Oreg. 417,
for the mayor to attest his approval 42 Am. St. Rep. 796.
of resolutions, to wit, by his signa- 8 Whitney v. Port Huron, 88 Mich,
ture. It is impossible to substitute 268, 26 Am. St. Rep. 291.
for that any other evidence that as 4 Kepner v. Com., 40 Pa. St. 124.
an alderman or as a private person But see Blanchard v. Bissell, 11 Ohio
he approved or consented to the reso- St. 103.
lutions." Gilfillan, C. J., in State v. «McDerraott v. Miller, 45 N. J. L.
District Court, 41 Minn. 518. Contra, 251.
Woodruff v. Stewart, 63 Ala. 208. « Saleno v. Neosho, 127 Mo. 627, 27
The signature affixed to the journal L. R A. 769.
of the council is not a sufficient ap- 7Saukv. Philadelphia, 8 Phila. (Pa.)
proval. Graham v. Carondelet, 33 118.
Mo. 262. 8 Peck v. Rochester, 3 N. Y. Supp.
i State v. Newark, 25 N. J. L. 399. 87a
188 MODE AND AGENCIES OF COEPOEATE ACTION. [§§ 209, 210.
Where an ordinance is passed over the veto it takes effect with-
out further act of the executive.
§ 209. Necessity for publication. — It is commonly required
that all ordinances shall be published before taking effect. This
just and reasonable provision must be complied with in order
to give validity to the law.1 Under such a provision actual
notice is not the equivalent of publication.2 'Provisions relat-
ing to publication are strictly construed when applied to police
ordinances which affect the personal rights and liberties of the
citizen. Under a constitutional provision that no person shall
be punished save under a law established and promulgated
prior to the commission of the offense, an ordinance must be
published for such a time as will give the public a reasonable
opportunity to become acquainted with its provisions.3 The
legislature may provide that the failure to publish an ordinance
within a stated time shall not affect its validity, but it can have
no retroactive effect.4
A provision in a city charter that the ayes and noes shall be
called and published whenever the vote of the council is taken
on any proposed improvement involving a tax or assessment
upon the people is directory — "the essential requirement being
the determination of the improvement and not the form or
manner of expressing that determination." 8
§ 210. Publication directory. — In Massachusetts, statutes
providing for the publication of ordinances are held to be di-
rectory. Thus, when ordinances were required to be "pub-
lished two weeks successively in three newspapers published in
1 Meyer v. Fromm, 108 Ind. 208; sufficient. Pitts v. Opelika, 79 Ala.
Napa v. Esterly, 61 Cal. 509; Wahn 527. For an illustration of the effect
v. Philadelphia, 99 Pa. St. 330; Higby of a requirement of publication of
v. Bunce, 10 Conn. 567; Barnett v. an administrative ordinance, see
Newark, 28 Iowa, 62; Schwartz v. Stuhr v. Hoboken, 47 N. J. L. 147.
Oshkosh, 55 Wis. 490; Elizabethtown It is not necessary to publish books
v. Lefler, 23111. 90; Still water v. Moor and maps referred to in an ordi-
(Oklahoma, 1893), 33 Pac. Rep. 1024, nance. Napa v. Esterly (Cat), 16
But see Elmendorf v. Mayor, 25 Pac. Rep. 256.
Wend. (N. Y.) 693. <Schweizer v. Liberty, 82 Mo. 309.
2 O'Hare v. Parker River (N. Dak.), « Striker v. Kelley, 7 Hill (N. Y.), 9,
47 N. W. Rep. 380; National Bank of 2 Denio, 323; Indian ola v. Jones, 29
Commerce v. Grenada, 44 Fed. Rep. Iowa, 282; St. Louis v. Foster, 52 Mo.
262. 513; Elmendorf v. Mayor, etc., 25
•A publication for seven days is Wend. 693.
§§ 211-214.] FOEil AXD EXACTMEXT OF ORDEXAXCES. 189
the city," Morton, C. J., said ' that, as there is no provision
that the ordinance shall not take effect until published, " the
provision requiring publication is directory ; it contemplates a
publication after the ordinance is enacted, and a compliance
with it is not a condition precedent to the validity of the ordi-
nance."
§ 211. Ultra vires acts of officials. — When an ordinance is
passed and published in the mode prescribed by the charter, it
is valid although the city officials exceeded their authority in
incurring a debt for the publication.2
§212. Manner of publication. — "When no method of publi-
cation is prescribed it seems that posting copies in public places
is sufficient.8 But publication is generally directed to be made
in a newspaper published or having a general circulation in the
municipality. A statute requiring " legal notices and adver-
tisements " to be published in certain kinds of newspapers has
no application to city ordinances.4
§ 213. Designation of paper. — The designation of the paper
must be by the proper authority. Thus, where a town is
given discretion to publish the ordinances in either of three
specified classes of papers, a publication made in a paper be-
longing to one of the classes by order of the town clerk is in-
effectual.8 But w'lere the council neglects to designate a paper
and the law requires the clerk of the board of aldermen to
publish resolutions and ordinances of the kind in question, the
clerk may make a legal publication in any paper published in
the city.6
§ 214. Location of paper — "Printed and published in the
city." — A paper is printed and published in the city although
some of the press-work is done elsewhere.7 A statute which
requires publication in a newspaper of the town for a specified
1 Com. v. Davis, 140 Mass. 485; Com. *Pittsburg v. Reynolds, 48 Kan.
v. McCafferty, 145 Mass. 384, 14 N. E. 360, 29 Pac. Rep. 757.
Rep. 451. See, also, Sacramento v. sHigby v. Bunce, 10 Conn. 436,
Dillman, 102 CaL 107, 36 Pac. Rep. 567. See Chicago v. McCoy, 136 IlL
385. 344, 11 L. R. A. 41&
*Kimble v. Peoria, 140 IlL 156, 29 6 jn re Darkin, 10 Hun (N. Y.), 269.
N. E. Rep. 723. ' Bayer v. Hoboken, 44 N. J. L.
3 Queen v. Justices, 4 Q. B. 522, 29 131.
Moak's Eng. Rep. 61.
190 MODE AND AGENCIES OF CORPORATE ACTION. [§§ 215-217.
period is complied with by publication in a paper prepared and
edited expressly for publication in the town and having its
principal circulation there, although it is printed elsewhere
and sent to the town in bundles for distribution.1 But there
can be no valid " publication " in a paper which has no circu-
lation in a town although it is entirely printed there.2
§ 215. Manner and sufficiency. — It is not necessary to pub-
lish along with the ordinance the law which is the authority
for its enactment.3 The publication may be in connection with
the other proceedings of the council.4 The distribution of
printed copies of an ordinance along with a newspaper is a
compliance with a statute requiring publication in the paper.5
Inaccuracies in printing are immaterial if the meaning is clear
from the context.6
§ 216. Distinction "between publication and notice. — There
is a manifest distinction to be observed between the publica-
tion of a notice and the publication of an instrument, a statute
or ordinance. A notice requires no particular collocation of
words so long as it conveys a clear idea of its subject, but
a statute or ordinance has no legal existence except in the lan-
guage in which it is passed.7 Hence, where a notice is by
statute required to be published in a paper printed in the Ger-
man language, the notice must be printed in the German lan-
guage; but when a statute or ordinance is required to be pub-
lished in the same paper it must, in default of legislative
direction to the contrary, be printed in the English language.*
§ 217. Time and period. — When no time is designated pub-
lication may be made at any time.9 A provision for publica-
iTisdale v. Town of Minonk, 46 'People v. Board of Supervisors,
III 9. 27 Cal. 655.
2Haskell v. Bartlett, 34 Cal. 281. <Law v. People, 87 111. 389.
Where publication is directed to be 6 Ex parte Bedell, 20 Mo. App. 125.
made in an adjoining municipality 6 Moss v. Oakland, 88 I1L 109. See
in the absence of any local news- How v. People, 88 111. 389.
paper, a leading paper in a large 7 State v. Mayor, 54 N. J. L. Ill, 22
city not far distant which circulates Atl. Rep. 1004, 14 L. R. A. 62.
in the municipality may be resorted 8 State v. Mayor, supra.
to in preference to the local paper 9 St. Paul v. Colter, 12 Minn. 41, 90
of » village lying nearer in point of Am. Dec. 278. The charter provided
fact than the city." Gallerno v. that "the council shall cause all
Rochester, 46 U. C. Q. B. 279. publications made by authority of
§ 218.] FORM AND ENACTMENT OF ORDINANCES. 191
tion for a certain time before taking effect requires but one
insertion.1 A requirement of publication " for five successive
days " in a daily newspaper is complied with by publication
for five successive week days, although a Sunday intervenes
on which there was no issue.2 The day of issue and delivery of
the paper is the first day of the period regardless of the date
of the paper.
A requirement of publication " for at least one week " in a
newspaper published in the city is complied with by one pub-
lication if the paper is a weekly paper, but if made in a daily
paper it must appear in each issue for one week.1
§ 218. Proof of publication. — It is commonly provided that
proof of publication may be made by the certificate of the
clerk under the seal of the corporation. A mere memorandum
entered on the ordinance is insufficient as a certificate.1 Where
the publication must be in a paper " published in the city,"
there must be proof of publication and of the place of publica-
tion.5
the city to be inserted in the first cient if it is published as often as the
column of the third page of the news- paper is issued. Richter v. Harper,
paper doing the city printing." The 95 Mich. 221, 54 N. W. Rep. 763.
ordinance was passed May 4th, and 3 Union P. R. Co. v. Montgomery,
not published until September 9th 49 Neb. 429, 68 N. W. Rep. 619.
following, between which dates sev- 4 Thus, in Hutchins v. Mt. Vernon,
eral meetings of the council had 40 111. App. 19, it was held that the
taken place. words " published July 17, 1890. At-
1 Hoboken v. Gear, 27 N. J. L, 267; test, R B. Slade," was " nothing more
State v. Hardy, 7 Neb. 377; Common- than a memorandum of the fact and
wealth v. Mathews, 122 Mass. 60. date, so that thereafter a certificate
2 Ex parte Fisk, 72 Cal. 125; Tay- thereof might be readily made when
lor v. Palmer, 31 Cal. 240. When the required."
publication is required to be in the 5 Hutchins v. Mt. Vernon, 40 111.
official paper of the city it is suffi- App. 19.
CHAPTER XIII.
THE VALIDITY OF ORDINANCES.
§ 219. General statement.
220. Under express power.
221. Motives of legislative body.
222. Ordinances valid in part.
223. Nature of an ordinance,
224. Injunctions — Invalid ordi-
nances.
L GENERAL PRINCIPLES GOVERNING
VALIDITY.
225. Must conform to charter.
226. Must be constitutional.
227. Must conform to law.
228. Must not contravene common
right.
229. Must be general and impartial.
230. Must not be oppressive.
231. Must be reasonable.
232. Reasonableness a question for
the court.
233. Presumption of reasonable-
ness.
IL ILLUSTRATIONS OF VALID AND
INVALID ORDINANCES.
234. Laying pipes in streets.
§ 235. Location and speed of vehi-
cles.
236. Handling of trains.
237. Regulation of street railwaya
238. Parades, music, and speaking
in public places.
239. Licenses.
240. Discrimination against non-
residents.
241. Regulation of markets.
242. Regulation of liquor traffic.
243. Fire regulations.
244. Quarantine regulations — Sec-
ond-hand clothing.
245. Hotel runners and hackmen.
246. Miscellaneous decisions.
IIL ORDINANCES WHICH PROHIBIT
ACTS WITHOUT THE CONSENT
OF CERTAIN OFFICIALS.
247. General statement
248. Cases sustaining such ordi-
nances.
249. Delegation of authority.
250. Nature of act prohibited.
251. Uniform conditions — Unjust
discrimination.
§ 219. General statement. — An ordinance may be void be-
cause of want of power in the corporation to enact it, the fail-
ure to observe prescribed formalities in its enactment, or be-
cause contrary to certain general principles of law. As a rule
the questions arise upon the validity of ordinances enacted
under general authority to legislate with reference to a certain
subject-matter. Thus, when a city is granted the power to
regulate and control its streets, it is authorized to exercise the
general power by means of ordinances enacted in accordance
with the provisions of the charter and the general rules of law.
§§ 220, 221.] VALIDITY OF OBDDfAXCES. 193
§ 220. Under express power. — When the legislature specific-
ally authorizes the passage of a particular ordinance, the courts
will not inquire into the question of its reasonableness. The
only questions which can then arise are those which go to the
power of the legislature.1 Hence, the power of a court to de-
clare ordinances void for reasons which would not apply equally
well to a statute is practically restricted to cases in which the
legislature has not legislated on the subject-matter of the ordi-
nance, and consequently to cases in which the ordinance was
passed under a supposed incidental power of the corporation.2
§ 221. Motives of council. — The courts have no power to
inquire into the motives of members of the legislature wMch
enacted a law.3 This principle applies as well to a city council
as a state legislature.4 But notwithstanding this the courts
will not sustain an ordinance the enactment of which was pro-
cured by fraud and bribery.5 As said by Judge Dillon:6 "It
would be disastrous to apply the analogy to its full extent.
Municipal bodies, like the directories of private corporations,
have too often shown themselves capable of using their powers
fraudulently for their own advantage or to the injury of oth-
ers. "We suppose it to be a sound proposition that their acts,
whether in the form of resolutions or ordinances, may le im-
peached for fraud at the instance of persons injured thereby."
1 Phillips v. Denver, 19 Cola 179, State v. Clark, 54 Mo. 17; Hayne v.
41 Am. St. Rep. 230; Champer v. Cape May, 50 N. J. L. 55. "Where an
Greencastle, 138 Ind. 339, 46 Am. St. ordinance is based upon a general
Rep. 390. In Belling v. Evansville, power, and its provisions are more
144 Ind. 644, 35 L. R. A. 272, the court specific and detailed than the ex-
said: "It is well settled that when pression of the power conferred, the
the adoption of a municipal ordi- court will look into the reasonable-
nance or by-law is expressly author- ness of such provisions." State v.
ized by the legislature, and when the Trenton, 53 N. J. L. 132, 20 AtL Rep.
express grant of power is not in con- 1076. And see Howes v. Chicago, 153
flict with a constitutional prohibi- 111. 653, 30 L. R. A. 225, and Darling-
tion or fundamental principles, it ton v. Ward, 48 S. C. 570.
cannot be successfully assailed as sCooley, Const. Lira., §186; Wright
unreasonable in a judicial tribunal." v. Defrees, 8 Ind. 298.
2Skaggs v. Martinsville, 140 Ind. « Buell v. Ball, 20 Iowa, 282; Free-
476, 49 Am. St. Rep. 209, 33 L. R. A. port v. Marks, 59 Pa. St 233.
781; Coal Float v. Jeffersonville, 112 5 State v. Cin. Gas Co., 18 Ohio St.
Ind. 19; Ex parte Chan Yen, 60 Cal. 262.
78 ; Brooklyn v. Breslau, 57 N. Y. 591 ; « Dillon, Mun. Corp. (4th ed.), I, § 311.
13
194: MODE AND AGENCIES OF OOEPOKATE ACTION. [§ 222.
§ 222. Ordinances valid in part. — Certain sections or parts
of sections of an ordinance may be held invalid without affect-
ing the validity of what remains, if the parts are not so inter-
blended and dependent that the vice of one necessarily vitiates
the others. It is only necessary " that the good and bad parts
be so distinct and independent that the invalid parts may be
eliminated and that what remains contain all the essentials of
a complete ordinance."1 The fact that the penal provision for
the enforcement of an ordinance is void does not invalidate its
other provisions, the valid part being complete and independ-
ent of the void portion.2 As said by the supreme court of the
United States, with reference to statutes: "These are cases
where the parts are so distinctly separable that each can stand
alone, and where the court is able to see and to declare that
the intention of the legislature was that the part pronounced
valid should be enforceable, even though the other part should
fail. To hold otherwise would be to substitute for the law in-
tended by the legislature one they may never have been will-
ing themselves to enact." 3
An ordinance may be valid as to certain persons or sales
and invalid as to others.4 Thus, an ordinance which forbids
the sale of malt liquors, which the corporation has power to
do, and also of spirituous liquors, which it has not power to do,
is valid as to the former and invalid as to the latter.5 So, where
the general law permits the sale of liquor in quantities of five
gallons or more without a license, an ordinance which pro-
hibits all sale of liquors without a license is valid as to sales in
quantities of less than five gallons.6 But when the remaining
part of the ordinance does not express the legislative intent,7
1 In re Bizzell, 112 Ala. 210, 21 So. 7 Neb. 377; St. Louis v. St. Louis Ry.
Rep. 371; City of Detroit v. Fort Co., 89 Mo. 44; Belleville v. Citizens'
Wayne, etc. R. Co., 95 Mich. 456, 35 Horse Car Co., 153 III 171, 26 L. R.
Am. St. Rep. 580, 20 L. R. A. 79; Ex A. 681; Danversberger v. Pender-
parte Stephen, 114 Cal. 278. gast, 128 111. 229; Koch v. North
'Magenan v. Fremont, 30 Neb. 843, Ave. R. Co., 75 Md. 222, 15 L. R. A.
9 L. R. A. 786. 377.
3 Pointdexter v. Greenhow, 114 U. < Ex parte Cowert, 92 Ala. 94, 9
S. 305; State v. Webber, 107 N. C. 962, So. Rep. 225.
22 Am. St. Rep. 920; In re Wong Hane, «Eldora v. Burlingame, 62 Iowa,
108 Cal. 680, 49 Am. St. Rep. 138; City 82; Cantril v. Sainer, 59 Iowa, 26.
of Tarkio v. Cook, 120 Mo. 1, 41 Am, 6 State v. Priester, 43 Minn. 373.
St. Rep. 678; In re Haskell, 112 CaL ? jn re Wong Hane, 108 CaL 680, 49
412, 32 L. R, A. 527; State v. Hardy, Am. St. Rep. 138.
§ 223.]
VALIDITY OF OEDINAXCES.
195
or the objectionable part is the compensation for or inducement
to the unobjectionable part, so that it is apparent that the latter
part would not have been enacted alone, the whole is invalid.1
§ 223. The nature of an ordinance. — A municipal ordinance
is a local law prescribing a general rule of action, and is as
binding upon the people within the municipality as are the acts
of the legislature upon the citizens of the state.2 "When ap-
plicable to every part of the city it is a general law, and not
in conflict with a constitutional provision prohibiting local
legislation.3 It is binding upon all who are within the limits
of the municipality ; 4 and any person who contracts with refer-
ence to a matter governed by an ordinance is charged with notice
1 Gilbert-Arnold Land Co. v. Su-
perior, 91 Wis. 353, 64 N. W. Rep.
999; Jacksonville v. Lead with, 26
Fla, 163, 23 Am. St. Rep. 558, and
note to City of Tarkio v. Cook, 120
Mo. 1, 41 Am. St. Rep. 678, 683.
2 New Orleans "Water Works v.
New Orleans, 164 U. S. 481; Buffalo
v. New York, etc. Ry. Co., 152 N. Y.
276, 46 N. E. Rep. 496; Citizens' Gas
& Min. Co. v. Elmwood, 114 Ind. 332;
Bills v. Goshen, 117 Ind. 221, 3 L. R.
A. 261. " Ordinances are not merely
rules or regulations in the ordinary
sense of those terms; but, as the deri-
vation of the word would indicate,
they are in the nature of laws, being
decreed by a body vested with defi-
nite legislative authority coupled
with the power to enforce obedience
to its enactment." Horr & Bemis,
Mun. Pol. Ord., sec. 12; Hopkins v.
Mayor, 4 M. & W. 461, 640, per Lord
Abinger; Village of St. Johnsbury v.
Thomson, 59 Vt. 301; State v. Tryon,
39 Conn. 183; Beardon v. Madison, 73
Ga. 184; Des Moines Gas Co. v. Des
Moines, 44 Iowa, 508; Starr v. Bur-
lington, 45 Iowa, 87; St. Louis v.
Buffinger, 19 Mo. 13; Jones v. Insur-
ance Co., 2 Daly (N. Y.), 307; McDer-
mott v. Board, 5 Abb. Pr. (N. Y.) 422;
Gabel v. Houston, 29 Tex. 336; Bur-
meister v. Howard, 1 Wash. 207. A
city council "is a miniature general
assembly, and their authorized ordi-
nances have the force, of laws passed
by the legislature of the state."
Scott, J., in Taylor v. Carondelet, 22
Ma 105; St. Louis v. Foster, 52 Mo.
513. Contracts between the inhab-
itants of a city in violation of the
provisions of a valid ordinance are
illegal and cannot be enforced. Milne
v. Davidson, 5 Mart N. S. (La.) 586.
But see Baker v. Portland, 58 Me. 199,
10 Am. L. Reg. (N. S.) 559, note.
8 Foster v. Police Com'rs, 102 CaL
183, 41 Am. St. Rep. 194.
< City Ry. Co. v. Mayor, 77 Ga. 731,
4 Am. St. Rep. 106. In Bott v. Pratt,
33 Minn. 323, the court, by Vander-
berg, J., said: "An ordinance which
a municipal corporation is author-
ized to make is as binding upon all
persons within the corporate limits
as any statute or other laws of the
commonwealth, and all persons in-
terested are bound to take notice of
their existence. Heland v. Lowell, 3
Allen (Mass.), 407; Vandines' Case, 6
Pick. 187; Gilmore v. Holt, 4 Pick.
257; Johnson v. Simon ton, 33 CaL
242, 249." Compare Henry v. Sprague,
11 R L 457, 23 Am. Rep. 502.
196 MODE AND AGENCIES OF CORPORATE ACTION. [§ 223.
of its provisions.1 But police ordinances, although their viola-
tion may be punished by fine and imprisonment, are only quasi-
criminal laws.2 They are not criminal laws within the general
meaning of the term, although the procedure for their enforce-
ment is generally criminal in form and may be in the name of
the state. Hence, a conviction under an ordinance for keeping
a house of ill-fame is not a bar to a conviction for the same
offense under the general law of the state.8 The violation of
one ordinance is not properly a crime against public law.4
Hence a defendant when prosecuted under an ordinance is not
entitled to a jury trial.5 But the courts are not always con-
sistent, at least in the use of language. Thus, it was said 6 of
ordinances : " They come strictly within the definition of
'crimes or criminal offenses.' The terms 'crime,' 'offense'
and 'criminal offense' are all synonymous, and ordinarily used
interchangeably, and include any breach of law established for
the protection of the public, as distinguished from an infringe-
ment of mere private rights, for which a penalty is imposed or
punishment inflicted in any judicial proceeding." But the same
court held7 that a city council might lawfully enact an ordi-
1 North Birmingham v. Colder- City of Goshen v. Craxton, 84 Ind.
wood, 89 Ala. 247, 18 Am. St. Rep. 239.
105; Sylvester Coal Co. v. St. Louis, 5 Byers v. Com., 42 Pa. St. 89; Howe
130 Mo. 323, 32 S. W. Rep. 649. In v. Plainfleld, 8 Vroom (N. J.), 151;
Ewing v. Webster City (Iowa), 72 N. Mankato v. Arnold, 36 Minn. 62, 30
W. Rep. 511 (1897), the court said: N. W. Rep. 505; State v. West, 42
"It is the established rule of this Minn. 147, 43 N. W. Rep. 845; State
state that, for most purposes at least, v. Harris, 50 Minn. 128, 52 N. W. Rep.
the violation of a municipal ordi- 387.
nance enacted by authority of the c State v. West, 42 Minn. 147.
state is a crime, and that proceed- 7 State v. Robitshek, 60 Minn. 123,
ings for its punishment are crim- 61 N. W. Rep. 1023, 33 L. R. A. 33, an-
inal." notated. The court said: "Prosecu-
2 State v. Webber, 107 N. C. 962, 22 tions thereunder are in the name of
Am. St. Rep. 920; State v. Boneil, 42 the state by express provision of the
La. Ann. 1110, 21 Am. St. Rep. 413. charter, as a matter of convenience;
3 State v. Lee, 22 Minn. 407, 13 N. and they are, at most, merely quasi-
W. Rep. 913; State v. Harris, 50 Minn, criminal in form. They are simply
128; Wragg v. Penn Tp., 94 III 23; local police regulations or by-laws for
Shafer v. Mumma, 17 Md. 331 ; Brown- the government of the municipality,
ville v. Cook, 4 Neb. 105. See an ex- and have no reference to or con nee-
tensive note to State v. Robitshek, tion with the administration of the
in 33 L. R. A. 33. criminal laws of the state. Originally
« Ex parte Holdenell, 74 Mo. 401 ; the only method of enforcing them
Platteville v. McKennan, 54Wis. 487; was by civil action, brought by the
§ 22:k] VALIDITY O¥ ORDINANCES. 197
nance which in effect prohibited any one not a policeman from
instituting a prosecution for failing to keep a saloon closed on
Sunday, on the ground that " municipal ordinances are not crim-
inal statutes; that violations thereof are not crimes, nor are
such violations governed- by the rules of the criminal law, save
in certain specified exceptional particulars."
§221. Injunctions — Invalid ordinances. — The passage of
an ordinance is a legislative act, and it is well settled that the
legislative acts of a municipal corporation will not be restrained
by injunction.1 But when an ordinance is invalid and the case
falls within any of the common heads of equity, a court will
enjoin the enforcement of the ordinance in order to protect
private rights.2 Ordinances are penal in their nature, and the
validity of criminal laws will not be tested by injunction ; but
this rule is " subordinate to the general principle that equity
will grant relief where there is not a plain, adequate and com-
plete remedy at law, and when it is necessary to prevent an
irreparable injury." 3 Thus, an injunction was granted to re-
strain the enforcement of an invalid ordinance which imposed
certain restrictions upon articles of merchandise and subjected
the seller to an action for a violation of the ordinance.4 But
where the plaintiff had been twice convicted and fined for vio-
lating an ordinance requiring grain to be weighed on city scales
and had appealed, and pending the appeal brought a suit to
restrain the city from further prosecuting him or any of his
customers on the ground that the ordinance was void, the in-
junction was denied on the ground that the plaintiff could avoid
a multiplicity of suits by obeying the ordinance pending the
appeal, and that the loss and convenience which he would
thereby suffer would not be so great as to warrant the inter-
ference of a court of equity.5
The general principle has been announced that a municipal
municipality in its own name to re- New Orleans, 164 U. S. 471; Balti-
cover such penalty as was prescribed more y. Radicke, 49 Md. 217.
for a violation." 8 Austin v. Austin Cemetery Ass'n,
1 New Orleans Water Works v. 87 Tex. 330. See Vegelahn v. Gunt-
New Orleans, 164 U. S. 471; Des ner, 167 Mass. 92.
Moines Gas Co. v. Des Moines, 44 * Sylvester Coal Co. v. St Louis,
Iowa, 505: High, Inj., § 1246. 130 Mo. 323, 51 Am. St. Rep. 550.
2 New Orleans Water Works v. 'Ewing v. Webster City (Iowa), 73
N. W. Rep. 511 (1897).
198 MODE AND AGENCIES OF CORPORATE ACTION. [§§ 225, 226.
corporation will be enjoined from performing a threatened act
which constitutes a manifest abuse of its discretion, to the op-
pression of the citizens.1
I. GENERAL PRINCIPLES GOVERNING VALIDITY.
§ 225. Must conform to charter. — As all ordinances are en-
acted for the purpose of carrying into effect powers granted by
the charter, it necessarily follows that they must in all things
conform to the charter.3
§ 226. Must not contravene flie constitution. — Municipal or-
dinances are subject to the restrictions imposed by the constitu-
tion of the state and of the United States, and when repugnant
to either are void.3 Thus, an ordinance impairing the obligation
of a contract,4 or taking property without due process of law,5 or
making unjust discriminations between citizens, in violation of
the fourteenth amendment to the constitution,6 or attempting
to regulate interstate commerce, is void.7 It seems that a per-
son has a constitutional right to associate with criminals, and
an ordinance forbidding any one knowingly to associate with
persons having the reputation of criminals is an invasion of the
constitutional right of personal liberty.8 An ordinance which
authorizes a fire warden to arrest and detain any person who,
at a fire, without sufficient excuse refuses to obey his orders is
unconstitutional as depriving the person of his liberty without
due process of law.9 An ordinance discriminating against the
1 Atlanta v. Halleday, 96 Ga. 546, Baldwin v. Smith, 82 111. 162; Illinois
26 S. E. Rep. 509. Central R. R. Co. v. Bloomington, 76
2 People v. Armstrong, 73 Mich. 288, 111. 447 ; Vance v. Little Rock, 30 Ark.
16 Am. St. Rep. 578; Thompson v. 435; Judson v. Reardon, 16 Minn. 435.
Carroll, 22 How. (U. S.)422; Thomas < Savings Society v. Philadelphia,
v. Richmond, 12 Wall. (U. S.) 349; 81 Pa. St. 175; Kansas City v. Corri-
Com. v. Roy, 140 Mass. 432; Garden gan, 86 Mo. 67.
City v. Abbott, 34 Kan. 283; State v. « Baldwin v. Smith, 82 111. 162.
Nashville, 15 Lea (Tenn.), 697; State • State v. Dering, 84 Wis. 585, 36
v. Municipal Court, 32 Minn. 329; Am. St. Rep. 94&
Rothschild v. Darien, 69 Ga. 503; ? Moranv. New Orleans, 112 U.S. 69.
Breinger v. Beloibere, 44 N. J. L. 350. 8 Ex parte Smith, 185 Mo. 223, 33
«Ex parte Felchlin, 96 Cal. 360, 81 L. R. A. 606.
Am. St. Rep. 223; Phillips v. Denver, 9 Judson v. Reardon, 16 Mina 431
19 Colo. 179, 41 Am. St. Rep. 230; Mt. (Gil. 387).
Pleasant v. Vancise, 43 Mich. 361;
§ 227.]
VALIDITY OF OEDINAXCE3.
199
Chinese in granting laundry licenses is void as contravening the
fourteenth amendment.1
§ 227. M ust conform to law. — Ordinances must not only con-
form to the charter and the constitution, but when enacted in
pursuance of implied power they must be consistent with the
general laws and policy of the state.2 If contrary to the gen-
eral laws or declared policy of the state they are void.8
A grant of power to a municipal corporation to make by-
laws for its own government and the regulation of its own
police " cannot be construed as imparting to it power to repeal
the laws in force or to supersede their operation by any of its
ordinances. Such a power, if not expressly conferred, cannot
arise by mere implication unless the exercise of the power given
be inconsistent with the previous law and does necessarily op-
erate as its repeal pro tanto. Nor can the assumption be in-
dulged that the legislature intended that an ordinance passed
lYick Wo v. Hopkins, 118 U. S.
356; In re Tie Lay, 26 Fed. Rep. 611.
See, also, Soon Hing v. Crowley, 113
U. S. 703; Barbey T. Connolly, 113
U. S. 27. An ordinance declaring
steamboats emitting dense smoke a
nuisance is valid as affecting boats
on the Chicago river. Harmon v.
Chicago, 110 111. 400. A penalty for
violating an ordinance is not a debt
within the meaning of the constitu-
tional provision prohibiting impris-
onment for debt. Hardenbrock v.
Town of Legonier, 95 Ind. 70.
2 Burg v. Chicago, etc. Ry. Co., 90
Iowa, 106, 48 Am. St. Rep. 419; Krat-
zenberger v. Law, 90 Tenn. 235, 25
Am. St. Rep. 681. See note to this
case in 13 L. R. A 185. Volk v. New-
ark, 47 N. J. L. 117; Lozier v. New-
ark, 48 N. J. L. 452; Robinson v.
Mayor of Franklyn, 1 Humph. (Tenn.)
156; May v. Cincinnati, 1 Ohio St.
268; Canton v. Nist, 9 Ohio St. 439,
34 Am. Dec. 625; Carr v. St Louis, 9
Mo. 191; Du Bois v. Augusta, Dud-
ley (Ga.), 30; Adams v. Mayor, etc.,
29 Ga. 56; Southport v. Ogden, 23
Conn. 128; Wirth v. Wilmington, 68
N. C. 24; State v. Austin, 114 N. C.
855, 41 Am. St. Rep. 817; Wood v.
Brooklyn, 14 Barb. (N. Y.) 425. In
Flood v. State, 19 Tex. App. 584, it is
said: "An ordinance, to be valid,
unless such legislative authority be
given for its enactment, must not
conflict with the statute, but must
conform to the laws of the state."
An ordinance which prohibits traf-
fic in intoxicating liquors is not an
illegal interference with business.
Fanner v. Alliance, 29 Fed. Rep. 169;
Markle v. Akron, 14 Ohio, 586. An
ordinance enacted under the police
power, prescribing a penalty for the
non-observance of Sunday in the con-
duct of certain business, is not re-
pugnant to the state law because it
exempts from its operation certain
occupations not exempted by the
state law. Theisen v. McDaniel, 34
Fla. 440, 26 L. R, A 234. The king
cannot authorize the making of a
by-law contrary to the law of the
realm. Chief Justice Hobart, in Nor-
ris v. Staps (1617), Hob. 210.
3 See Walker v. City of Aurora, 140
III 402, 29 N. E. Rep. 741.
200 MODE AND AGENCIES OF COEPOEATE ACTION. [§ 228.
by the city should be superior to or take the place of the gen-
eral law of the state upon the same subject." l
A general law does not repeal an existing special law unless
such clearly appears to have been the legislative intention.
Thus, a grant of power to provide for the punishment of a
designated offense, contained in a city charter, is not repealed
by a subsequently enacted general statute providing for the
prosecution of the same offense throughout the state.2 But the
powers granted must be exercised in conformity to the gen-
eral criminal laws. Thus, under authority to prohibit variety
shows, a city cannot group together a certain number of acts
in themselves lawful, and by calling the result a variety show
prohibit the performance.3
When an ordinance is specifically authorized by the charter
it has the effect of a special law of the legislature within the
limits of the municipality, and supersedes the general law. It
operates to repeal the general law on the principle that pro-
visions of different statutes which are in conflict with one an-
other cannot stand together; and in the absence of anything
showing a different intent on the part of the legislature, gen-
eral legislation upon a particular subject is repealed by subse-
quent special legislation upon the same subject.4
§ 228. Must not contravene common right. — It is said that
there can be no implied power to enact an ordinance which
contravenes common right. It is somewhat difficult to deter-
mine what is meant by a common right, and no clear defini-
1 March v. Com., 12 B. Mon. (Ky.) fame a felony and punishable as
25, Simpson, C. J. See Button's Hos- such was held not to repeal by im-
pital Case, 10 Reports, 31a; Rex v. plication a provision of the charter
Maidston, 3 Burr. 1837. of Detroit authorizing the common
2 State v. Labatate, 39 La. Ann. council to prohibit, prevent and sup-
513, 2 So. Rep. 550; Covington v. St. press the keeping of such houses and
Louis, 78 111. 548. Contra, Southport ordinances enacted thereunder.
v. Ogden, 23 Conn. 128. In People v. 3Ex parte Bell, 32 Tex. Cr. Rep.
Hariahan, 75 Mich. 611, it was held 808, 42 Am. St. Rep. 778.
that a subsequent general law did 4St. Johnsbury v. Thompson, 59
not, by implication, work the repeal Vt. 300; In re Snell, 58 Vt 207; State
of a special law on the same subject v. Clark, 54 Mo. 17; Mark v. State, 97
although inconsistent with it. An N. Y. 572; State v. Morristown, 33
act of the legislature making the N. J. L, 57. See § 69.
off.ense of keeping a house of ill-
§§ 229, 230.] VALIDITY OF OBDLSANCES. 201
tion is found in the cases. There certainly can be no common
right to do an act which the legislature has forbidden.1
§ 229. Must le general and impartial — Ordinances should
be general in their nature and impartial in their operation.
Unwarranted discrimination or oppressive interference in par-
ticular instances will render an ordinance invalid.2 An ordi-
nance prohibiting a specified railroad corporation from running
locomotives by steam on a certain street does not contravene
this principle, when no other person or corporation has the
right to run locomotives on that street. Hence, said the court,
" no other person or corporation is or can be in a like situation,
except with the consent of the city. On this account the ordi-
nance, while apparently limited in its operation, is in effect
general, as it applies to all who can do what is prohibited."3
An ordinance containing a grant may reserve the right to im-
pose restrictions not imposed upon other persons or corpora-
tions. Such ordinances are necessarily several and independent
of each other, and the conditions imposed and requirements ex-
acted are necessarily different, as the conditions and circum-
stances vary.4
§ 230. Must not le oppressive. — An ordinance which is un-
just and oppressive in its character and operation is invalid.5
lrrhe principle of the above sec- 339, 46 Am. St Rep. 390. That an
tion is recognized in Anderson v. ordinance manifestly intended as a
City of Wellington, 40 Kan. 173, 2 sanitary regulation is made to apply
L. R. A. 110, 10 Am. St Rep. 175; In only to a part of the city does not
re Flaherty, 105 CaL 558, 27 L, R. A. render it invalid, if that part is so
529; Hayden v. Noyes, 5 Conn. 391. situated as to require particular and
But there is no common right to do exceptional provisions. Com. v.
that which is prohibited by a valid Patch, 97 Mass. 221.
ordinance. City Council v. Ahrens, 'Railway Co. v. Richmond,'96 U. S.
4 Strob. (S. C.) L. 241; Dillon, § 325. 521.
2 Detroit v. Ft Wayne, etc. Ry. Co., « Detroit v. Ft W. etc. Ry. Co., 95
95 Mich. 456, 20 L. R. A. 79; Phillips Mich. 456, 20 L. R A. 79. An ordi-
v. Denver, 19 Cola 179, 41 Am. St nance which prohibits certain occu-
Rep. 230; Lindall v. Covington, 90 pations on Sunday is valid, although
Ky. 444, 29 Am. St Rep. 398; In re it excludes certain other occupations
Flaherty, 105 CaL 558, 27 L. R. A. from its operation. See Theisen v.
529; Ex parte Chin Tan, 60 CaL 78; McDaniel, 34 Fla. 440, 26 L. R. A. 234.
Zaume v. Mound City, 103 I1L 552; 5Mayorv. Beasly, 1 Humph. (Tenn.)
Ingaman v. Chicago, 78 I1L 405; 232; Mayor v. Winfield, 8 Humph.
Champer v. Greencastle, 138 Ind. (Tenn.) 707; St Louis v. Weber, 44
202 MODE AND AGENCIES OF COEPOKATE ACTION. [§§ 231, 232.
Thus, an ordinance which compelled the substitution of a ce-
ment sidewalk in the place of a plank walk in front of a twenty-
acre vacant lot, the plank walk having been laid only six
months before in conformity with an ordinance, and being still
safe, sufficient and in good condition, was held void, because
unreasonable, unjust and oppressive.1
§ 231. Must ~be reasonable. — Probably the 'most important
general rule affecting ordinances enacted under implied au-
thority is that which makes their validity dependent upon
their reasonableness.2 "When the ordinance is passed under
specific authority, the question of its reasonableness cannot be
raised. In all other cases an unreasonable ordinance is invalid,
and the question of reasonableness must be determined in the
light of the particular circumstances. An ordinance may be
reasonable and valid as to one state of facts and circumstances,
and unreasonable and invalid when applied to facts and cir-
cumstances of a different character.3
§ 232. Reasonableness a question for the court — The ques-
tion of the reasonableness of an ordinance must be decided by
the court with due regard to all existing circumstances and
conditions, the object sought to be attained, and the necessity
for the adoption of the ordinance.4 It may be determined by
an inspection of the ordinance or after hearing evidence. But
such evidence must be directed to the court and not to the
jury.5
Mo. 547; Baltimore v. Radicke, 49 Md. 8 State v. Sheppard, 64 Minn. 287,
217; St. Louis v. Fitz, 53 Mo. 582; 36 L. R. A. 305.
Commissioners v. Gas Co., 12 Pa. St. 4 Hawes v. Chicago, 158 111. 653, 80
318. L. R. A. 225; Lake View v. Tate, 130
1 Hawes v. Chicago, 158 111. 653, 30 111. 247, 6 L. R. A. 58; Kipp v. Pat-
L. R. A. 225.. For applications of the erson, 26 N. J. L. 298; Railway Co.
same principle, see Davis v. Litch- v. East Orange, 41 N. J. L. 127; State
field, 145 111. 313, 21 L. R. A. 563; v. Orange, 50 N. J. L. 389, 13 At).
Palmer v. Danville, 158 III 156; Rep. 240; Ex parte Frank, 52 Cal.
Bloomington v. Latham, 142 III 462, 606; Kneedler v. Norristown, 100 Pa.
18 L. R. A. 487. St 368; Com. v. Worcester, 3 Pick.
2 Johnson v. Mayor of Croyden 462; Neier v. Missouri Pac. Ry. Co.,
(1886), 18 Q. B. D. 708, 7 Eng. RuL 12 Mo. App. 25; St Louis v. Webber,
Cas. 278, and many early cases cited 44 Mo. 547.
in the English and American notes. 5 State v. Trenton, 53 N. J. L. 132,
Many cases are also collected in a 20 Atl. Rep. 1076. In Evison v. C.,
note .to 35 Am. Rep. 702. M. & St. P. Ry. Co., 45 Minn. 370,
§ 233.]
VALIDITY Of OEDINAXCES.
203
§ 233. Presumption of reasonableness. — The presumption is
in favor of the reasonableness of the ordinance.1 The party
asserting its illegality must set forth the facts in his pleading
and sustain the burden of proof.2 It requires a clear and
strong case to justify the court in holding an ordinance invalid
when the corporation is acting within the apparent scope of
its authority. As said in a recent case, " The judicial power
to declare it void can only be exercised when from the inher-
ent character of the ordinance, or from evidence taken show-
ing its operation, it is demonstrated to be unreasonable." 3
In assuming the right to judge of the reasonableness of an
exercise of corporate power, courts will not look closely into
mere matters of judgment where there may be a reasonable
difference of opinion. It is not to be expected that every
power will be exercised with the highest discretion, and, when
it is plainly granted, a clear case should be "made to authorize
an interference on the ground of unreasonableness.4 " This,
ordinance, and that evidence could
not be received to show the manner
in which it was or might be en-
forced. See, also, State v. Fcurcade,
45 La. Ann. 717, 40 Am. St. Rep. 249.
1 Mayor v. Dry Dock R. Co., 133
N. Y. 104; People v. Creiger, 138 la
401, 28 N. E. Rep. 812.
2 State v. Fourcade, 45 La. Ann.
717, 40 Am. St. Rep. 249.
3 State v. City of Trenton, 53 N. J.
L. 132, 20 Atl. Rep. 1076; Paxton v.
Sweet, 30 N. J. L. 196; Lewis v. New-
ton, 75 Fed. Rep. 884; Littlefield v.
State, 42 Neb. 223, 47 Am. St Rep.
697; Mayor v. Dry Dock, etc. Ry.
Co., 133 N. Y. 104, 28 Am. St. Rep.
609; White v. Kent, 11 Ohio St. 5-50;
Com. v. Patch, 97 Mass. 221 ; Van
Hook v. Selma, 70 Ala. 361. Con-
temporaneous construction cannot
be considered when the meaning is
clear from the language of the act.
Wesson v. Collins, 72 Miss. 844, 18
So. Rep. 360, 917.
*St Louis v. Webber, 44 Mo. 547;
Kansas City v. Cook, 30 Mo. App.
660; Duluth v. Mallett, 43 Minn. 204.
Mr. Justice Mitchell said: "An or-
dinance is in the nature of a local
statute, and it would seem anoma-
lous to leave it to the jury to deter-
mine whether a law is valid. Cer-
tainly, if the invalidity is apparent
on the face of the statute or ordi-
nance, it has always been held a
question of law for the court, and
we cannot perceive why a rule
should be different where the inva-
lidity is made to appear from ex-
trinsic facts. Any other rule would
lead to the embarrassing result that,
upon the same state of facts, one jury
might hold an ordinance valid and
another jury hold it invalid." In
Clason v. Milwaukee, 30 Wis. 316,
and Austin v. Austin Cemetery
Ass'n, 87 Tex. 330, 47 Am. St. Rep.
114, it was held that where the
question of reasonableness depended
upon the existence of certain facts
of which the court had not judicial
knowledge, such facts might be sub-
mitted to the jury. But in Mercer
County v. Fleming, 111 CaL 46, it was
said that the question must be de-
termined from an inspection of the
204: MODE AND AGENCIES OF CORPORATE ACTION. [§§ 234:, 235.
we think, is the true rule," said Crockett, J., " and it proceeds
upon the theory that, under a general grant of power to a mu-
nicipal corporation to pass ordinances on a given subject, it
will be presumed that it was not intended to clothe it with power
to pass an ordinance which is clearly unreasonable, unjust, op-
pressive, partial and unfair; or which contravenes public pol-
icy or is in restraint of trade. But an ordinance will not be
presumed invalid on either of these grounds unless in a plain
case." l
II. ILLUSTRATIONS OF VALID AND INVALID ORDINANCES.
§ 234. Laying pipes in streets. — An ordinance prohibiting the
opening of streets for the purpose of laying gas mains between
the first of December and the first of the following March is
reasonable,2 although an ordinance entirely prohibiting the open-
ing of a paved street for the purpose of laying pipes from the
main to the opposite side of the street is unreasonable, as it
would tend to increase the price of gas by requiring mains to
be laid on each side of the street.3
§ 235. Location and speed of vehicles. — A city may reason-
ably require stages or other such vehicles to keep off certain
narrow and crowded streets,4 or prohibit vehicles containing
perishable produce to stand in a public street longer than twenty
minutes between certain hours of the day.5 So it may properly
provide that a hackney coach shall not stand within thirty feet
of any public place of amusement,6 and that vehicles used for
hire shall occupy only certain designated stands.7 The speed
lEx parte Frank, 52 Cal. 606, 28 making such crossing shall supply all
Am. Rep. 642; Grand Rapids v. necessary safeguards for the same,"
Braudy, 105 Mich. 670, 32 L. R. A. is reasonable. State v. Janesville, etc.
116; Swift v. Topeka, 43 Kan. 671, 8 Ry. Co., 87 Wis. 72, 41 Am. St. Rep. 23.
L. R. A. 772. < Cora. v. Stodder, 2 Gush. 563 ; Com.
2 Commissioners v. Gas Co., 12 Pa. v. Mulhall, 162 Mass. 496, 44 Am. St
St. 318; Commissioners v. North Lib- Rep. 387.
erties Gas Co., 2 Jones, 318. 8 Com. v. Brooks, 109 Mass. 355. An
3 Commissioners v. North Liberties ordinance prohibiting vehicles from
Gas Co., 2 Jones, 318. An ordinance standing in the street more than
regulating the stringing of wires in twenty minutes applies to licensed
a city, which provides that " when- peddlers. Com. v. Fenton, 139 Mass,
ever it shall be necessary to cross the 195, 29 N. E. Rep. 653.
line of any existing telephone line or 6 Com. v. Robertson, 5 Gush. 439.
lines . . . the person or company 7 Com. v. Matthews, 122 Mass. 60.
§ 236.]
VALIDITY OF OEDINAXCES.
205
of vehicles on streets may be regulated,1 even without express
authority.2 But an ordinance prohibiting driving on a street
at a speed of more than six miles an hour is unreasonable when
applied to the members of a salvage corps when responding to
an alarm of fire.*
§ 236. Handling of trains. — A city may regulate the run-
ning of railway trains across and over its streets, but the ordi-
nances must be reasonable and take into consideration the
various conditions existing in different parts of the city.4 An
ordinance limiting the speed to six miles per hour is reasonable ; 5
but a limitation to four or six miles an hour is unreasonable
when applied to that part of the road in the suburbs of the
city, where the road is securely fenced on each side and there
is but one grade crossing.8 Ordinances forbidding trains from
standing across a public street longer than two minutes,7 or
from stopping on a street crossing for any other purpose than to
prevent accident in the face of immediate danger,8 or requiring
railway companies to keep flagmen at dangerous crossings,9 or
Fixing the fare which may be
charged by coaches. Com. v. Gage,
118 Mass, 328. Imposing a moderate
tax upon all vehicles used on the
streets. St. Louis v. Green, 70 Mo.
563. The place may be determined
by a marshal or policeman. Vene-
man v. Jones, 118 Ind. 41, 20 N. E.
Rep. 644; St Paul v. Smith, 27 Minn.
364.
1 State v. Sheppard, 64 Minn. 287,
36 L. R A. 305, and note; Scudder v.
Hinshaw, 134 Ind. 56; Com. v. Adams,
114 Mass. 323, 19 Am. Rep. 362; Peo-
ple v. Little, 86 Mich. 125.
2 Reynolds v. Mandain, 4 Harr.
(Del.) 317; Mittelstadt v. Morrison, 76
Wis. 265.
'State v. Sheppard, 64 Minn. 287.
< Lake View v. Tate, 130 111. 247, 6
L. R, A. 268; Evison v. Chicago, etc.
R, Co., 45 Minn. 370, 11 L. R A. 434;
Buffalo v. New York, etc. R Co., 152
N. Y. 276, 46 N. E. Rep. 496; Prewitt
v. Missouri, etc, Ry. Co., 134 Mo. 615,
36 S. W. Rep. 667; Larkin v. Burling-
ton, etc. Ry. Co., 85 Iowa, 492; Gra-
tiot v. Mo. Pac, Ry. Co., 116 Mo. 450,
16 L. R A. 189; Pennsylvania Co. v.
Horton, 132 Ind. 187; Burg v. Chi-
cago, etc. R Co., 90 Iowa, 106.
'Knoblauch v. Railway Co., 31
Minn. 402; Buffalo v. New York, etc,
Ry. Co., 152 N. Y. 276, 46 N. E. Rep.
496; Com. v. Worcester, 3 Pick. 461;
Gahagan v. Railway Co., 1 Allen, 187.
6 Evison v. Chicago, etc. Ry. Co.,
45 Minn. 370; Burg v. Chicago, etc.
Ry. Co., 90 Iowa, 106, 48 Am. St. Rep.
419. See Larkin v. Burlington, etc.
Ry. Co., 85 Iowa, 492, 52 N. W. Rep.
480. Local trains may be excepted
from the operation of an ordinance.
Buffalo v. New York, etc. Ry. Co.,
152 N. Y. 276, 46 N. E. Rep. 496.
•State v. Mayor, etc., 37 N. J. L.
348; Borough v. Alabama, etc. Ry.
Co. (Ala.), 13 So. Rep. 141.
SDuluth v. Mallett, 43 Minn. 204.
9 Railway Co. v. East Orange, 41
N. J. L. 127. In Village of Ravenna
v. Pennsylvania Co., 45 Ohio St. 118,
206 MODE AND AGENCIES OF CORPORATE ACTION. [§§ 237, 238.
prohibiting boys and others not connected with the train serv-
ice from getting on or off moving trains within the city limits,1
are reasonable and valid. But ordinances requiring railway
companies to keep flagmen by day and red lanterns by night
at ordinary crossings where there is no unusual danger,2 or
prohibiting a railway company between 6 A. M. and 11 P. M.
from moving its cars across the street for the- purpose of being
distributed in their yards, without regard to whether they are
stopped on the street, are unreasonable.3 So an ordinance
which requires a railroad company, whose only scheduled train
at night passes at eight o'clock, to light each street which it
crosses with an electric light from dark to dawn, is unreason-
able and void.4
§ 237. Regulation of street railways. — Street railways are
subject to a variety of regulations that are rendered reasonable
and necessary by reason of the conditions surrounding their
business. Thus, they may by ordinance be required to make
quarterly reports of the number of passengers,5 to pave the
sides of the streets through which they run,6 and to provide
a driver and conductor on each car.7
§ 238. Parades, music, and speaking in piibllc places. — It is
very doubtful whether a city can, under the general power
over its streets, prohibit their use for the purpose of parades
and processions. But it may regulate such uses by prescribing
the time and manner of the use, and may make the right con-
ditional upon the consent of certain officials. But the actions
of the official must be governed by a prescribed general rule.
It cannot be left to the arbitrary discretion of the official.3 An
12 N. E. Rep. 445, it was held that 6St Louis v. St Louis Ry. Co., 89
municipal corporations in Ohio have Ma 44
no power to compel a railway com- 6 City v. Erie Pass. Ry. Co., 7 PhiL
pany to keep a watchman at their 321.
crossings. See Pittsburg, etc. R. Co. " South Cov. etc. Ry. Co. v. Berry,
v. Crown Point (Ind.), 35 L. R. A. 684. 93 Ky. 43, 18 S. W. Rep. 1026 < State
iReardon v. Madison, 73 Ga. 184, v. Trenton, 53 N. J. L. 132, 20 Atl
2 Toledo, etc. R. Co. v. Jacksonville, Rep. 1076.
67 III 37, 16 Am. Rep. 611. 8See § 247, post; State v. Bering,
8 Birmingham v. Alabama, etc. Ry. 84 Wis. 585, 36 Am. St. Rep. 948, 19 L.
Co., 98 Ala. 134, 13 So. Rep. 141. R A. 859, annotated; In re Frazee,
* Cleveland, etc. R Co. v. Conners- 63 Mich. 896, 6 Am. St. Rep. 310.
ville (Ind., 1897), 38 L. R. A. 175. Street parades cannot be prohibited
§ 239.] VALIDITY OF OBDINAXCES. 207
ordinance prohibiting street parades with shouting and music
without the permission of a city officer, but excepting certain
organizations from its operation, is unreasonable.1 The same
objection exists to an ordinance which forbids any person not
acting under the orders of a military officer to play any musical
instrument in the street on Sunday.1 But an ordinance for-
bidding the beating of drums and shouting on the streets with-
out a permit from the mayor was recently held valid.1 So a
city may prohibit speaking in a public park without such a
permit.4 The supreme court of Massachusetts said : " For the
legislature absolutely or conditionally to forbid public speaking
in a highway or public park is no more an infringement of the
rights of a member of the public than for the owner of a pri-
vate house to forbid it in his house. When no proprietary
rights interfere the legislature may end the right of the public
to enter upon the public place by putting an end to the dedi-
cation to public uses. So it may take the less step of limiting
the public use to certain purposes.5 If the legislature had
power under the constitution to pass a law in the form of the
present ordinance, there is no doubt that it could authorize
the city of Boston to pass the ordinance, and it is settled by
the former decision."
§ 239. Licenses. — The principles which govern the granting
of licenses have already been considered. There must be some-
thing connected with the business to be licensed which gives
rise to the necessity for some degree of supervision. Hence a
license may reasonably be required from those who sell milk,6
(Rich v. Naperville, 42 I1L App. 223; 2 Johnson v. Mayor of Croyden, 16
Bloomington v. Richardson, 38 IlL Q. B. D. 70S, 7 Eng. RuL Cas. 27&
App. 60; People v. Rochester, 44 Hun * In re Flaherty, 105 CaL 558, 27 L.
(N. Y.), 166; Anderson v. Welling- R A. 529.
ton, 40 Kan. 173, 2 L. R. A. 110; State * Davis T. Com., 167 U. S. 43, 162
v. Hughes, 72 N. C. 25), but may be Mass. 510, 44 Am. St. Rep. 389, 26 I*
regulated in order to prevent their R A. 712.
becoming a public annoyance. Char- 5 See Dill. Mun. Corp., §§ 393, 407,
liton v. Fitzsimmons, 87 Iowa, 226; 651, 606, 666; Brooklyn Park Com'rs
Com. v. Plaisted, 148 Mass. 375; State v. Armstrong, 45 N. Y. 234, 243, 244,
v. White, 64 N. Y. 48; Roderick v. 6 Am. Rep. 70.
Whitson, 51 Hun (N.Y.),620; White 6 People v. Mulholland, 82 N. Y.
v. State (Ga., 1397), 37 L. R A. 642. 324; State v. Nelson (Minn.) 68 N. W.
i State v. Bering, 84 Wis. 535. Rep. 1066. See § 78.
208
MODE AND AGENCIES OF CORPORATE ACTION. [§ 24:0.
peddle goods from house to house,1 sell papers on the street,2
sell articles in certain streets,3 or engage in certain kinds of
business, such as butchers 4 and cattle dealers.5 The amount of
license fee which can be exacted as a police measure varies ac-
cording to the nature of the occupation licensed. It must not
exceed a sum which is sufficient to reimburse the municipality
for the probable trouble and expense of issuing the license and
inspecting and regulating the business.6 Thus, a license fee
of $300 for an auctioneer,7 $20 for a peddler 8 and $300 for a
butcher9 has been held unreasonable. But when the amount
of the license fee is determined by the state through legislative
enactment, its reasonableness cannot be determined by the
courts.10
§ 240. Discrimination against non-residents. — An ordinance
which discriminates against a non-resident by requiring a larger
license fee from a non-resident than from a resident is unrea-
sonable and void.11 There must be no discrimination between
those engaged in the same business or between residents and
non-residents.12
1 State Center v. Barnstein, 66 Iowa,
249.
2 Com. v. Elliott, 121 Mass. 367.
3 Nightingale, Petitioner, 11 Pick.
168.
4 St. Paul v. Coulter, 12 Minn. 41
(Gil. 16).
* St. Louis v. Know, 6 Mo. App. 247.
In this case the dealer was required
to have a certificate of good moral
character.
6 North Hudson Co. R. Co. v. Ho-
boken, 41 N. J. L. 81. If the amount
exacted is unreasonably large in
view of the purpose for which it is to
be paid, the ordinance is void. Lit-
tlefield v. State, 42 Neb. 223, 47 Am.
St. Rep. 697.
7 Mankato v. Fowler, 32 Minn. 364.
8 State Center v. Barrenstein, 66
Iowa, 249.
9 St. Paul v. Coulter, 12 Minn. 41.
See State v. Wheelock (Iowa), 64 N. W.
Rep. 621, 30 L. R. A. 439. For many
authorities on the limit of the amount
of license fees, see note to State v.
French (Mont), in 30 L. R. A. 415.
10 State v. Harrington, 68 Vt. 622, 34
L. R. A. 100.
11 Muhlenbrinck v. Com., 44 N. J. L.
865; State v. City of Orange (N. J.),
13 Atl. Rep. 240; Borough of Sayre v.
Phillips, 148 Pa. St. 482, 24 Atl. Rep.
76; State v. Ocean Grove, etc. Ass'n,
55 N. J. L. 507, 26 Atl. Rep. 798. The
real objection to these ordinances
is not an unreasonable exercise of
power, but that they are unconstitu-
tional.
A city may, by ordinance, fix the
number of hours which its workmen
shall work on the public works; but
it cannot make a violation of the or-
dinance an indictable offense. State
v. McNally, 48 La. Ann. 1450, 21 So.
Rep. 27, 36 L. R, A. 533.
12 City of Indianapolis v. Bieler, 138
Ind. 30, 36 N. E. Rep. 857; Clement
v. Town of Casper (Wy.), 35 Pac. Rep.
472.
§§ 241, 242.] VALIDITY OF OEDIXAXCES. 209
§ 241. Eeg illation of markets. — A city may reasonably pro-
vide by ordinance that wagons loaded with produce shall not
remain in the market place for more than twenty minutes dur-
ing certain hours; * that persons not licensed occupants of stalls
shall not offer meats for sale in less than certain quantities;*
or that fresh beef shall not be sold in less than quarters except
between dawn and 9 A. M.s An ordinance fixing a penalty
for each hour that a wagon is kept in a public market is unrea-
sonable.4
§242. Regulation of liquor traffic. — A municipality may
make reasonable regulations with reference to the sale of in-
toxicating liquors without violating the constitutional right of
equal protection and privilege.5 Thus, it may limit the dis-
tricts or precincts of a city in which liquor may be sold.6
Druggists may be prohibited from selling liquor except for
medicinal purposes.7 It may provide by ordinance that no
license shall be issued to any person until he obtains the con-
sent of two-thirds of the freeholders residing within three miles
of his proposed place of business,8 or that the granting of a
license shall be dependent upon the consent of the county
officials.9 The reasonableness of an ordinance requiring sa-
loons to close at a certain hour must be determined by the size
of the municipality and the character of its population. Ordi-
nances requiring them to close at nine,10 ten u and eleven,12 from
10:30 P. M. to 5 A. M.,18 and from midnight to 5 A. M.,u have
been held reasonable. But an ordinance forbidding licensed
retailers to sell between 6 P. M. and 6 A. M. is unreasonable,
as it " deprives a party of several hours of daylight in which
* Com. v. Brooks, 100 Mass. 55. ' Provost City v. Shurtleff, 4 Utah,
2 St Louis v. Weber, 44 Ma 547. 15, 5 Pac. Rep. 303.
1 Bowling Green v. Carson, 10 Bush 8 Metcalf v. State, 76 Ga. 203.
(Ky.), 164 9 Wagner v. Town of Garrett, 118
4 Com. v. Wilkins, 121 Mass. 356. Ind. 114; State v. Hellmon, 56 Conn.
»Giozza v. Tiernan, 148 U. S. 657; 190.
Ex parte Hayes, 98 CaL 555, 20 L. R, w Smith v. Knoxville, 3 Head
A. 701 ; Decie v. Brown, 167 Mass. (Tenn.), 245.
290, 45 N. E. Rep. 765. » State v. Washington, 44 N. J. L.
6 In re Wilson, 32 Minn. 145: State 605; Ex parte Wolf, 14 Neb. 24; Mor-
v. Clark, 28 N. H. 176. It may limit ris v. Rome, 10 Ga, 532.
the license to one for each thousand 12 Decker v. Sergeant, 125 Ind. 404,
of the population. Decie v. Brown, " State v. Welch, 36 Conn. 215.
167 Mass. 290. u Brighton v. Toronto, 12 U. G 433,
14
210 MODE AND AGENCIES OF CORPORATE ACTION. [§§ 243, 244.
he is forbidden to exercise a right conferred by the state." '
So an ordinance requiring such persons to close their doors and
cease selling whenever " any denomination of Christian people
are holding divine service " is void.2 An ordinance which pro-
hibits the employment of women in saloons is a reasonable exer-
cise of the power to regulate such places ; 8 but when the consti-
tution provides that no person shall be disqualified by reason of
sex from pursuing any lawful occupation, an ordinance forbid-
ding the proprietors of drinking saloons to permit any females
to be employed in their places after a certain hour is invalid.4
§ 243. Fire regulations. — Power to establish fire limits and
prohibit the erection of certain kinds of buildings within such
limits must be reasonably exercised. Hence an ordinance which
absolutely prohibits the altering, repairing or rebuilding of
any frame building within certain limits whenever the amount
to be expended exceeds $300 is arbitrary and unreasonable,
and practically amounts to the taking of the property without
due process of law.5
§ 244. Quaran line regulations — Second-hand clothing. — The
business of dealing in second-hand clothing is a proper one for
police regulation.6 In the absence of an epidemic showing an
apparent necessity therefor, an ordinance prohibiting any one
from bringing second-hand clothing into a town, or exposing it
for sale therein, without furnishing proof that it did not come
from an infected district, is an unreasonable restraint of trade.7
1 Ward v. Greenville, 8 Bax. (Tenn.) R A. 122; Greensborough v. Ehren-
228. ' ruch, 80 Ala. 579, 60 Am. Rep. 130;
SGilham v. Well, 64 Ga. 192. See Weil v. Record, 24 N. J. Eq. 169;
State v. Strauss, 49 Md. 288. State v. Long Branch, 42 N. J. L.
3 Bergman v. Cleveland, 39 Ohio 364, 36 Am. Rep. 518; State v. Segel,
St. 651; State v. Considine, 16 Wash. 60 Minn. 507; Marmet v. State, 45
858, 47 Pac. Rep. 755. Ohio St. 63. A very clear abuse of the
4 In re M'Guire, 57 Cal. 604. See police power must be shown in order
Black, Intox. Liq., § 236. to justify a court in declaring prdi-
5 First Nat. Bank v. Sarles, 129 nances regulating the business of
Ind. 201, 28 Am. St. Rep. 185. As to pawnbrokers, junk-dealers and deal-
the power to establish fire limits ers in second-hand goods unreason-
under the general welfare clause, see able and void. Grand Rapids v.
Kaufmann v. Stein, 138 Ind. 49, 46 Braudy, 105 Mich. 670, 32 L. R. A. 116.
Am. St. Rep. 368. 7 Town of Kosciusko v. Stomberg,
'State v. Taft, 118 N. C. 1190, 32 L. 68 Miss. 469, 9 So. Rep. 297.
§§ 24:5, 246.] VALIDITY OF ORDINANCES. 211
§ 245. Hotel runners and hackmen. — A city may regulate
the conduct of hackmen, hotel runners and porters. An ordi-
nance limiting the number of hackmen who may stand in front
of a hotel is reasonable when there are other hack-stands in
the city.1 Such persons may be forbidden to solicit business
at the depots and railway platforms within the city limits.
But a city cannot interfere 'with the reasonable regulations of
the railway companies for the handling of passengers. Thus,
an ordinance which forbids hotel runners from going within
twenty feet of the train, although permitted to do so by the
rules of the company, is invalid.2
§ 246. Miscellaneous decisions. — An ordinance forbidding
smoking in street cars is a reasonable exercise of the power to
protect the public health and to suppress nuisances.3 The decis-
ions are in conflict upon the question of the right of the city to
require the owners of lots to clean the snow from the sidewalk in
front of their premises at their own expense,4 An~ordinance re-
quiring all restaurants to close at ten o'clock at night is reason-
able under certain conditions.5 An ordinance which requires the
keepers of boarding-houses, restaurants and hotels to furnish
the city with the names of all persons boarding or lodging at
their houses is reasonable.6 A city may require pawnbrokers
to furnish the police with a record of all property received and
a description of the persons from whom received.7 So it may
prohibit pawnbrokers from purchasing the articles upon which
they make loans of money.8 An ordinance which requires the
proprietors of theaters to pay a police officer two dollars per
night for attendance at theaters for the purpose of preserving
1 Montgomery v. Parks (Ala.), 21 Flynn v. Canton Co., 40 Md. £12, 17
So. Rep. 452. Am. Rep. 603.
2 Nappeau v. People, 19 Mich. 352. 5 state v. Freeman, 38 N. H. 426.
8 State v. Huydenham, 42 La, Ann. 6 Topeka v. Boutwell, 53 Kan. 20,
483, 7 So. Eep. 621. 27 L. R. A. 59&
4 In support of the power, see God- 7 Kansas City v. Gamier, 57 Kan.
dard's Case 16 Pick. 504, 28 Airi. Dec, 412, 46 Pac. Rep. 707. The decisions
259. Contra, jridley v. Bloomington, on the power to regulate the busi-
88 III 554, 30 Am. Rep. 566; Chicago ness of pawnbrokers, junk dealers,
v. O'Brien, 111 111. 532, 53 Am. Rep. etc., are collected in a note to Grand
640. As to the liability of owners for Rapids v. Braudy, 105 Mich. 670, 33
damages for injuries occasioned by L. R. A. 116.
failure to remove ice and snow from 8Kuhn v. Chicago, 30 ILL App. 203.
sidewalk as required by statute, see
212 MODE AND AGENCIES OF COEPOEATE ACTION. [§ 247.
order is unreasonable and void.1 "When a city furnishes gas and
water to its inhabitants for a compensation it may provide by
ordinance that the gas or water may be stopped after ten days'
default in the payment of the bill and until the same is paid.2
An ordinance requiring that garbage shall be removed in water-
tight closed carts or wagons, which shall be marked with the
word "garbage," is reasonable.3 The owner. of a lot may be
required to remove filth from a private way adjoining his land
although he did not place it there.4 An ordinance which pro-
hibits any person from permitting drunkards or disorderly per-
sons from assembling at or remaining in his " house, tavern, inn,
saloon, cellar, shop, office or other residence or place of busi-
ness " is unreasonable and void because not limited to places
which require police supervision, nor to assemblages of immoral
persons.5
III. OEDINANCES WHICH PEOHIBIT ACTS WITHOUT THE CONSENT
OF CEETAIN OFFICIALS.
§ 247. General statement. — Municipalities often enact ordi-
nances which assume to make the legality of an act depend
upon the previously obtained consent of a designated official.
In the earlier decisions such ordinances were sustained with-
out special reference to this feature. The present tendency,
however, is towards treating the provision as an improper dele-
gation of authority, as contravening common right, or as fail-
ing to provide uniform and impartial conditions, thus placing
it in the power of the official to discriminate between citizens
entitled to equal rights before the law. Such ordinances may
be roughly thrown into five classes:
1. Those which divide persons into classes without reference
to their character or qualifications, placing on one side of the
dividing line those who are permitted to pursue their business
by the consent of the official, and on the other side those from
whom that consent is withheld. Such ordinances are almost
universally held invalid.
1 Waters v. Leach, 3 Ark. 110. « Com. v. Cutler, 156 Mass. 52, 29
2 Com. v. Philadelphia, 132 Pa. St. N. E. Rep. 1146.
238. 8 Grand Rapids v. Newton (Micl).,
a People v.Gordon (Mich.), 45 N.W. 1896), 35 L. R. A. 226; Ex part-
Rep. 65& Smith (Mo., 1896), 83 L. R. A, 606.
§ 248.] VALIDITY OF OEDDTAXCES. 213
2. Those in which discretion is granted to public officials to
determine the qualifications of applicants for licenses, where
the fitness of the applicant is left to the judgment of the officer.
Such ordinances are held valid, as they call for the exercise of
discretion of a judicial nature.
3. Those which prescribe uniform conditions, and authorize
some official to determine whether such conditions have been
complied with. There can be no objection to ordinances of
this kind, as the duties delegated to the officer are of a minis-
terial character.
4. Those which assume to regulate the doing of lawful acts,
and give some officer discretion and power to grant or refuse
permission.
5. Those which authorize and empower some officer to arbi-
trarily authorize or forbid an act illegal under the general
terms of the ordinance or the laws of the state.
The two latter classes will be considered in the following
sections.
§248. Cases sustaining such ordinances. — As above stated,
ordinances containing this provision have often been sustained,
but generally without the question under consideration being
raised.1 In a recent California case - an ordinance which made
it unlawful to beat a drum upon a traveled street without spe-
cial permission from the president of the board of trustees
was held valid. In answer to the contention that the ordi-
nance was oppressive and gave too much power to an officer,
the court said : " Laws are not made upon the theory of the
total depravity of those who are elected to administer them ;
and the presumption is that municipal officers will not use
these small powers villainously and for the purpose of mischief
and oppression." The same court sustained an ordinance
which prohibited the repair or alteration of any wooden build-
ing within designated fire limits without written permission of
1 This is true of Hume v. New Ha- herty, 105 CaL 558, 27 L. R A. 529, but
ven, 40 Conn. 478; Nightingale's Pe- are of little ralue in support of the
tition, 11 Pick. 168; Yanderbilt v. proposition contended for.
Adams, 7 Cow. 349; Pedrick v. Bai- 2 lu re Flaherty, 105 CaL 528, 27 L,
ley, 12 Gray, 16L These cases are R A. 529. See Barbier v. Connelly,
cited in the recent case of In re Fla- 113 U. S. 27.
214 MODE AND AGENCIES OF COEPOKATE ACTION. [§ 249.
certain officers, on the ground that the provision was necessary
in order to avoid the hardships incident to the literal enforce-
ment of the prohibition; and that as no general rule could be
established, it was proper to leave the power to the official,
who would not " be presumed to exercise it wantonly or for
the purpose of profit or oppression." 1
Ordinances which require an applicant for a saloon license to
obtain the consent of a certain number of voters or residents
in the vicinity of his proposed place of business are generally
sustained.2 But a city council cannot delegate the power to
grant licenses to the mayor.3 Nor can it grant to the mayor
the power to determine the district within which licenses may
be granted.4 But it may authorize him to grant a license when
certain prescribed conditions have been complied with.8
§ 249. Delegation of authority. — Such ordinances are very
frequently held invalid as attempts to delegate legislative power.
Thus, an ordinance which delegated to the owners of one-half
the ground in any block the power to determine whether a
livery-stable should be erected therein was held invalid.6
parte Feske, 72 Cal. 125, cit- consent of a majority of the board
ing Barbier v. Connelly, 113 U. S. 27; of police commissioners or of not less
Soon Hung v. Crowley, 113 U. S. 703, than twelve citizens owning real es-
and distinguishing Yick Wo v. Hop- tate in the block, was held invalid
kins, 118 U. S. 356. See, also, Easton on the ground that it left to the per-
Corn. v. Govey, 74 Md. 262; Com. v. sons named the power to control the
Brooks, 109 Mass. 355. Where a park liquor traffic, and as vesting in them
board had authority to "govern and arbitrary discretion. See, also, Quong
regulate the parks" and to "make Woo, 13 Fed. Rep. 229.
rules for the government thereof," a 3Kinmundy v. Mayor, 72 111. 463;
rule which forbade " harangues, ora- State v. Bayonne, 44 N. J. L. 114;
tions or loud outcries " in a park " ex- Trento v. Clayton, 50 Mo. 541.
cept with the prior consent of the < State v. Cantler, 33 Minn. 69; In
board " was held valid in Com. v. re Wilson, 23 Minn. 28.
Abraham, 156 Mass. 57. See §238, «Swarth v. People, 129 III 621;
supra. Bradley v. Rochester, 54 Hun (N. Y.),
2 Whitten v. Covington, 43 Ga. 421; 140; State v. Redmon, 43 Minn. 250.
In re Bickenstaff, 70 Cal. 35; House egt. Louis v. Russell, 116 Mo. 248,
v. State, 41 Miss. 737; Grousch v. 20 L. R. A. 721, note. This principle
State, 42 Ind. 547; State v. Brown, wm be found discussed in many of
19Fla. 563; Jones v. Hilliard, 68 Ala. the cases cited under this general
300. But in Re Christiansen, 43 Fed. subject. Vide Anderson v. Welling-
Rep. 243, an ordinance which re- ton and In re Frazee, supra. Con-
quired the applicant to obtain the tra, Chicago v. Stratton, 162 111. 494,
§ 250.]
VALIDITY OF ORDINANCES.
215
§ 250. Nature of prohibited act. — The validity of such an
ordinance is sometimes made to tarn upon the nature of the
act prohibited thereby. If it is an act which no citizen has the
inherent right to do, and which the municipality may absolutely
prohibit, it may grant the privilege under such conditions as it
sees proper. In considering a town order which prohibited the
keeping of swine " without a permit in writing first obtained
from the board of health/' Mr. Justice Holmes said: ""We are
at a loss to see how it affects the validity of the order that the
board expressly reserved to themselves a power to do what they
could have done even if the prohibition had been absolute; or
how the defendants are put in a worse position by the order con-
templating the possibility that the board of health may grant
them a written permit than if it had excluded that possibility." l
But when the act can only be regulated the conditions imposed
must be general and uniform, and this principle is violated by
an ordinance which makes the exercise of the right subject to
the arbitrary discretion of any person.8
35 L. R A. 84. This <?ase contains a
discussion of the question of the
validity of laws which are made de-
pendent upon a contingency, and
cites Locke's Appeal, 72 Pa. St. 491 ;
People v. Hoffman, 116 11L 587, 56 Am.
Rep. 793.
1 Inhabitants of Quincy v. Ken-
nard, 151 Mass. 563; In re Flaherty,
105 CaL 558; Ex parte Tuttle, 91 Cal.
589; In' re Guerrero, 69 CaL 88. It is
upon this theory that ordinances pro-
viding that the issuing of liquor
licenses shall depend upon obtaining
the consent of certain officials are
sustained. Ex parte Christiansen, 85
Cal. 208.
2 In re Frazee, 63 Mich. 369; State
v. Bering, 84 Wis. 585, 19 L. R A. 858;
Anderson v. "Wellington, 40 Kan. 173,
2 L. R A. 110. In State v. Dering,
supra, the court said: "It is suscep-
tible of being applied to offensive
and improper uses, made subversive
of the rights of the private citizen,
and it interferes with and abridges
their privileges and immunities, and
denies them the equal protection of
the law and the enjoyment of their
undoubted rights. In the exercise
of the police power the common
council may in its discretion regu-
late the exercise of such rights in a
reasonable manner, but cannot sup-
press them directly or indirectly, by
attempting to submit the power of
doing so to the mayor or any other
officer. The discretion with which
the council is vested is a legal dis-
cretion, to be exercised within the
limits of the law, and not a, discre-
tion to transcend it, or to confer
upon any city officer an arbitrary
authority, making him in its exer-
cise a petty tyrant. Such ordinances
or regulations to be valid must have
an equal and uniform application to
all persons, .societies or organiza-
tions similarly circumstanced, and
not be susceptible of unjust discrim-
inations, which may be arbitrarily
practiced to the hurt, prejudice or
216 MODE AND AGENCIES OF COEPOEATE ACTION. [§ 251.
§ 251. Uniform conditions — Unjust discrimination. — Al-
though ordinances of this kind are generally said to be un-
reasonable, the real objection is that they are unconstitutional
because in violation of the fourteenth amendment to the con-
stitution of the United States, which prohibits the enactment
of any law which abridges the privileges or immunities of citi-
zens or denies to any person the equal protection of the laws.1
If the conditions upon which the consent of the official is to
be given are determined and are uniform and applicable to all
citizens, the ordinance is valid ; but if its enforcement rests in
the uncontrolled discretion of any officer or city council, it is
invalid.2 Thus, an ordinance that provides that no one shall
maintain a market within certain limits without the permission
of the city council is invalid because the discretion is in no way
regulated or controlled, and no conditions are prescribed upon
which permission shall be granted.3 So an ordinance which
provides that it shall be unlawful for any person or persons,
club or association of any kind to parade the streets of the city
with any flag or flags, banners, transparencies, drums, horns
or other musical instruments without first having procured
permission of the city council so to do is an encroachment
upon the constitutional rights of citizens.4 So an ordinance
which makes it unlawful for any person to parade the streets
of the city shouting, singing and beating drums or other mu-
sical instruments, or doing any other act designed or calculated
to attract an unusual crowd, without the written consent of
the mayor, is invalid because not fixing uniform and impartial
conditions and improperly delegating power.4 "Where the or-
dinance prohibited dairies within certain designated limits with-
annoyance of any." City of St. Paul tection of equal laws." Yick Wo v.
v. Lawton, 61 Minn. 537; State v. Me- Hopkins, 113 U. S. 369.
Mahon (Minn., 1897), 72 N. W. Rep. 2jn re Frazee, 63 Mich. 396; Chi-
79. (Requirement that a "permit" cago v. Trotter, 136 III 430.
shall be obtained before removing 3 State v. Du Barry, 44 La. Ann.
contents of privy vault.) This pro- — , 11 So. Rep. 718; followed in State
vision does not give "any arbitrary v. Deffes, 44 La. Ann. 45, 12 So. Rep.
discretion by which to withhold a 841.
permit from a suitable person prop- 4 Rich v. City of Naperville, 42 111.
erly equipped to do the work." App. 222.
1 State v. Bering, 84 Wis. 585, 19 5 Anderson v. City of Wellington,
L. R. A. 858. This equal protection 40 Kan. 173, 2 L. R. A. 110.
of the laws is a pledge of the " pro-
§ 251.] VALIDITY OF ORDINANCES. 217
out the consent of the city council, the court said : * " The dis-
cretion vested in the city council by the ordinance is in no way
regulated or controlled. There are no conditions prescribed
upon which permission may be granted. It is within the power
of the city council to grant the privilege to some and deny
it to others. The discretion vested in the council is purely
arbitrary and may be exercised in the interest of the favored
few. It may be controlled by partisan considerations, race
prejudices or personal animosities. It lays down no rules by
which its impartial execution can be secured."
1 State v. Mahner, 43 La. Ann. 496, 9 So. Rep. 840.
CHAPTER XIV.
GOVERNING BODIES, OFFICERS AND AGENT&
i 252. Distribution of powers.
253. The corporate meeting.
254. Notice of corporate meetings.
255. The common council.
256. Place of meeting.
257. Majority and quorum,
258. Who are officers.
259. Election and appointment.
260. Qualifications.
261. Conditions precedent to enter-
ing upon an office.
262. Relation of officer to corpora-
tion.
268. Incompatible offices.
264 Illustrations.
265. Officers de facto.
266. Officers de facto — Continued.
267. Compensation.
268. Compensation — De facto offi-
cers.
269. Increase of salary — Misde-
meanor.
§ 270. Compensation of employees —
Attorneys.
271. The mayor.
272. Control by the courts.
273. Holding over after expiration
of term.
274. Resignation.
275. Amotion.
276. Removal — Express author-
ity— Proceedings.
277. Personal liability on con-
tracts.
278. Liability in tort.
279. Liability of officers acting ju-
dicially.
280. Liability of recorder of deeds.
281. Liability of sheriff.
282. Liability of highway officers.
283. Liability of various officers.
284. Liability for loss of public
funds.
285. Manner of trying title to an
office.
§ 252. Distribution of powers. — The nature of a corporation
is such that it must necessarily exercise its powers through
some representative or agent. Under the town-meeting sys-
tem there must be administrative and executive officers to
carry into effect the expressed will of the general body. Under
the representative system the city council and various officers
act as the agents of the corporation. In a wide sense the coun-
cil represents the corporation, and early charters incorporated
the mayor and the members of the council instead of the people
of a particular locality. The distribution of powers and duties
among the various boards and officers is made by the charter
of a corporation. It also determines the constitution of the
council and the manner of its organization. In some cities
large powers are vested in boards which act under the general
§§ 253, 251.] GOVERNING BODIES, OFFICEES AND AGENTS. 219
supervision of the council. These boards, however, are often
distinct public corporations charged with a portion of local ad-
ministration, and possessed of the power to pass by-laws which
have the effect of municipal ordinances. Thus, the public
schools, the park system and the general subject of the public
health are commonly placed under the control of subordinate
corporations known as school boards, park boards and boards
of health.
§ 253. The corporate meeting. — The affairs of a corporation
must be transacted at a meeting of the corporate body.1
Under the town-meeting system this means a meeting of all
the qualified inhabitants of the corporation. But the business
of the ordinary municipal corporation is transacted by a select
or representative body called the common council. Its mem-
bers are elected by the qualified electors of the corporation at
an election duly called for that purpose. Under this system
the electors have no power to bind the corporation at a public
or general meeting. They can act only through their legally
constituted representatives. The composition of these repre-
sentative or corporate meetings is generally provided for by
statute. At common law a valid meeting required the pres-
ence of the mayor or other head officer, a majority of the mem-
bers of each select or definite class, and some members of the
indefinite body usually called the commonalty, or of each of
the indefinite classes if there were more than one. If there
was no indefinite class and the governing body consisted of a
select class or of more than one select class, a majority of each
select class must be present. The presence of the mayor in a
select assembly of this kind was not necessary unless expressly
required ; but where a common council existed the presence of
the mayor or head officer was necessary.
§ 25i. Notice of corporate meetings. — Where the charter pro-
vides for the time of regular meetings, it is not necessary that
1 Dey v. Jersey City, 19 N. J. Eq. ing, to-which (unless there is a fixed
412. In voL 7, Eng. Rul. Gas. 337, the time of meeting) all the corporators
rule is thus stated: "At common must be summoned, and if the cor-
law, and in the absence of special poration consists of a definite num-
contract, the acts of a corporation ber the major part must attend."
are those of a duly-constituted meet-
220 MODE AND AGENCIES OF OOEPORATE ACTION. [§ 255.
special notice thereof be given members. If, however, it is in-
tended to transact business at any other time, it is necessary
that special notice be served upon each member, designating
the time and place, if other than the regular place of meeting,
and the general character of the business to be transacted. The
notice must be given by some one having authority to call the
meeting. Generally, however, notice is waived by the presence
and consent of every one entitled to receive the notice.1 Charter
provisions with reference to notice of meeting must of course
govern in all cases. Such provisions with reference to the call-
ing of town meetings are strictly construed. Thus, it is held
that notice is essential to a valid meeting, and that a de facto
meeting not duly warned or notified is invalid, although all
who are entitled to notice attend.2 Such notice must be suffi-
cient to fairly indicate the object of the meeting and the nature
of the business to be transacted.
§ 255. The common council — The common council is the
most important of the agencies through which municipal cor-
porations act. It exercises legislative power and controls the
general policy of the municipality.3 Under one form of organ-
ization the council has extensive administrative power, makes
contracts, appoints officials, and is the general administrative
as well as governing body. Under another form its duties are
purely legislative, and the work of administration is largely
left to officers elected by the people for that purpose. The
common form is a single body with a membership determined
by the charter and elected by the people from defined districts
within the municipality. The mayor is sometimes the presid-
ing officer of the council; but more commonly the council elects
its own officers.4 The constitution of the council, its powers,
meetings and procedure are ordinarily determined by the city
1 Lord v. Anoka, 36 Minn. 176. But trict, 2 Gush. (Mass.) 419; Stow v.
the mere attendance of a quorum is Wyse, 7 Conn. 214, 18 Am. Dec. 99.
not sufficient. Every member has a 8 Central Bridge Corp. v. Lowell,
right to be present. Beaver Creek v. 15 Gray (Mass.), 106, 116, note.
Hastings, 52 Mich. 528. * State v. Kiichli, 53 Minn. 147, 1&
2 Bloomfield v. Charter Oak Bank, L. R. A. 779. Power of legislative
121 U. S. 121, 130; Sherwin v. Bugbee, assembly to remove speaker, see In
17 Vt 337; Hay ward v. School Dis- reSpeakership,15Colo.500,HLR A.
240.
§§ 256, 257.] GOVERNING BODIES, OFFICEES AND AGENTS. 221
charter. It must act as a unit at a regularly called meeting.
The right of the mayor to preside over the council is a fran-
chise, which may be tested by quo warranto but not by a bill
in chancery to enjoin.2 When the power is vested in the
" mayor and aldermen " the council cannot legislate alone. Un-
der the English system the mayor was an integral part of the
council and no business could be transacted in his absence.
Hence all business could be stopped by the wrongful with-
drawal of one of the constituent parts of the body.3 But this
rule has no application to public corporations in this country.4
The mayor cannot adjourn a council beyond a time at which
the law requires a certain city official to be elected.5
§ 256. Place of meetings. — The validity of corporate acts or
the action of municipal officials may depend upon whether the
action was taken at the place designated by the statute. Thus,
a law requiring boards of supervisors to meet "at the court-
house " was not complied with by a meeting held in a build-
ing near the court-house, which opened into the court-house
inclosure and was used as an office by the clerk and sheriff.6
A statute requiring a town meeting to be held in the " school-
house " means within the walls of the school-house.7
§ 257. Majority and quorum. — As above stated the common-
law doctrine is that a majority of those present at a legally
called meeting of the indefinite body will bind the whole body.8
This rule applies to New England town meetings and to cor-
porate bodies consisting of definite members. A majority of
those elected constitutes a legal quorum unless otherwise pro-
1 Dey v. Jersey City, 19 N. J. Eq. 6 Harris v. State, 72 Miss. 960, 33 L.
412. As to manner in which a board R. A. 85.
of police must act, see Baltimore v. 7 Chamberlain v. Dover, 13 Me. 466,
Poultney, 25 Md. 18. 29 Am. Dec. 517. For further illus-
2 Cochran v. McCleary, 22 Iowa, 75 trations, see Hall v. Ray, 40 Vt, 576,
(Dillon, J.); In re Sawyer, 124 U. S. 94 Am. Dec, 440; Moody v. Moeller,
200 (Gray, J., citing many cases). 72 Tex. 685; Marion Co. Com'rs v.
s Bang v. Williams, 2 Maule & SeL Barker, 25 Kan. 258, and cases cited
141. in note to Harris v. State, 33 L. R.
4 Martindale v. Palmer, 52 Ind. 411 ; A. 85.
Kimball v. Marshall, 44 N. H. 465. « Damon v. Qranby, 2 Pick 345;
STillman v. Otter, 93 Ky. 600, 29 State v. Binder, 38 Mo. 450; Gushing,
L. R A. 110. Leg. Assem., § 247. See note to Law-
rence v. Ingersoll, 6 L. R. A. 309.
222 MODE AND AGENCIES OF CORPORATE ACTION. [§ 257.
vided by the charter.1 A quorum is that number which, when
assembled in the proper place, will enable a body to transact
business.2 If a quorum is present and a majority of the quo-
rum votes in favor of a measure it will prevail, although an
equal number is present and refrains from voting. It is not
the majority of the whole number of members present that is
required. All that is requisite is a majority of the number of
members necessary to constitute a quorum.3 Mr. Justice Lamar
said : * " The rule on the subject has been well stated by Dillon : 5
' As a general rule, it may be stated that not only where the
corporate power resides in a select body, as a city council, but
where it has been delegated to a committee or agents, then, in
the absence of special provisions otherwise, a minority of the
select body or of the committee or agents are powerless to
bind the majority or do any valid act. If all the members of
the select body or committee or if all of the agents are assem-
bled, or if all have been duly notified and the minority refuse
or neglect to meet with the others, a majority of those present
may act, provided those present constitute a majority of the
whole number. In other words, in such a case a major part of
the whole is necessary to constitute a quorum, and a majority
of the quorum may act. If the major part withdraw so as to
leave no quorum, the power of the minority to act is, in gen-
eral, considered to cease.' " "Where a council consists of eight
members, five being a quorum, and the mayor has the casting
vote in case of a tie, and four members vote one way and four
refuse to vote, the mayor is entitled to the deciding vote.6 In
1 Heiskell v. Baltimore, 65 Md. 125, torney-General v. Sheppard, 63 N. H.
57 Am. Rep. 308; Barnert v. Patter- 383; State v. Dillon, 125 Ind. 65, 25
son, 48 N. J. L. 395. N. E. Rep. 136. See note to Hooper
2 Heiskell v. Baltimore, 65 Md. 125, v. Creager, 84 Md. 197. In Lawrence
57 Am. Rep. 308. v. Ingersoll, 88 Tenn. 52, 6 L. R. A.
3 Rushville Gas Co. v. Rushville, 309, it was held that a majority of
121 Ind. 206, 23 N. E. Rep. 72, 6 L. R. those present at a meeting of a select
A. 315; State v. Ballin, 144 U. S. 1; body consisting of a definite njumber
State v. Green, 37 Ohio St. 227; of voters must concur in order to do
Launtz v. People, 113 111. 137, 55 Am. any valid act.
Rep. 405; Everett v. Smith, 22 Minn. < Brown v. District of Columbia,
53. "The exercise of law-making 127 U. S. 579.
power is not stopped by the mere si- 8 Mun. Corp., § 283.
lence and inaction of some of the 6 Launtz v. People, 113 111. 137, 55
law-makers who are present." At- Am. Rep. 405.
§ 258.] GOVEBXING BODIES, OFFIOEKS ASHD AGENTS. 223
a council of twelve, seven is the smallest number that can hold
a legal meeting, but when seven are present four may bind the
council.1 Authority to remove an officer by a two-thirds vote
of the council means a two-thirds vote of the legal quorum.2
Authority to settle rules of procedure does not confer author-
ity to determine what number shall be a quorum, and the rule
of the common law will govern.8 Acts done when less than a
quorum is present are void.
§ 258. Who are officers. — A public officer is one who is se-
lected to discharge a public duty, and who receives compensa-
tion therefor from some source.4 File clerks, janitors, officers
of justice courts and the like are mere employees and the courts
will not determine their rights in quo warranto proceedings.5
Commissioners appointed to refund the bonded indebtedness of
a township are mere financial agents and not public officers.8
The president of a city council is not necessarily an officer of
the city, but may be only an officer or servant of the council
that selected him.7 The members of the detective department
of the district police force are public officers and not mere em-
ployees.8 But the question whether a certain person is a public
officer or merely an employee must in many cases be determined
from an examination of the statute providing for the office and
prescribing its duties. The distinction between state and mu-
nicipal officers has been elsewhere considered.9 The question
often arises under the provisions of law which forbid one per-
son holding more than one office, a state and municipal office,
1 Ex parte "Wilcocks, 7 Cowan See, also, many cases cited in note to
(N. Y.) 403; Buell v. Buckingham, 16 McCornick v. Pratt, 8 Utah, 294, in
Iowa, 2S4. 17 L, R A. 24a See, also, State v.
2 Warnock v. La Fayette, 4 La. Ann. Kiichli, 53 Minn. 147; State v. Dillon,
419; State v. Porter, 113 Ind. 79; 32 Fla. 545, 22 L, R A. 124; State v.
Cooley, Const. Lam., p. 163; Journals Anderson, 45 Ohio St. 196, 12 N. E.
of United States Senate, 1st Sess., Rep. 656.
43d Cong., 41& 5 Trainor v. Board of Auditors, 89
» Heiskell v. Baltimore, 65 Md. 125, Mich. 162, 15 L. R A. 95.
57 Am. Rep. 308. Also Zeiler v. Cen- 6 Travelers' Ins. Co. v. Oswego, 59
tral R Co., 84 Md. 304, 34 L. R A. 469. Fed. Rep. 58, 7 C. C. A. 69.
« Henley v. Lyme, 5 Bing. 91; Og- 7 State v. Kiichli, 53 Minn. 147, 54
den v. Raymond, 22 Conn. 379, 59 Am. N. "W. Rep. 1069.
Dec. 429. Many definitions and au- & Brown v. Russell, 166 Mass. 14, 33
thorities are cited in State v. Spauld- L. R A. 253.
ing (Iowa, 1897), 72 N. AY. Rep. 288.
22i MODE AND AGENCIES OF CORPORATE ACTION. [§§ 259, 260.
a state and federal office, or under the common law which for-
bids one person from holding inconsistent offices.
§ 259. Election and appointment — The manner in which the
officers of public corporations are to be elected or appointed is
always provided in the charter or general law. The members
of a city council are always elected by the people, and this is
generally true of the mayor. The treasurer, comptroller, at-
torney and members of boards are sometimes elected by the
people and sometimes by the council. Subordinate officers are
generally appointed by the mayor and confirmed by the council
or elected by the council. The power to appoint to office is
not an inherent executive function.1 The transfer from a coun-
cil to the mayor " of all executive power now vested by law in
the city council or in either branch thereof" authorizes the
mayor to appoint a superintendent of buildings.2 When the
power of appointment is vested in the mayor there is no im-
plied requirement of confirmation by the council.3 After hav-
ing confirmed an appointment the council cannot reconsider its
action and refuse to confirm.4 A council the term of whose
life is one year may create and appoint to an office the term of
which exceeds one year.5
§ 260. Qualifications. — The qualifications necessary to the
holding of an office are determined by the constitution or by
the statutes of the state, and the possession of such qualifica-
tions is as essential to the right to hold an office as is appoint-
ment or election.6 An alien cannot hold an office ; but a non-
resident is eligible to office unless the contrary is provided by
statute.7 As a general rule it is held that women are ineligible
to office unless the right is expressly conferred upon them.8
1 Fox v. McDonald, 101 Ala. 51, 46 court-house and city hall commis-
Am. St. Rep. 98, 21 L. R. A. 529; State sioners, see State v. Ermentrout, 63
v. Boucher, 3 N. Dak. 389, 21 K R. A. Minn. 105, 65 N. W. Rep. 251.
539; People v. Freeman, 80 CaL 233, » State v. Anderson, 58 N. J. L. 515,
13 Am. St. Rep. 122, and note on 33 AtL Rep. 846.
p. 127. 6 Nanson v. Grizzard, 96 N. C. 293.
2 Attorney-General v. Varnum, 167 7 Com. v. Jones, 12 Pa. St 3G5 ; State
Mass. 477, 46 N. E Rep. 1. v. George, 23 Fla. 585.
« State v. Doherty, 16 Wash. 382, 47 8 Brad well v. Illinois, 16 Wall 130;
Pac. Rep. 958. Robinson's Case, 131 Mass. 876;
< State v. Wadham, 64 Minn. 318, Hough v. Cook, 44 Iowa, 639; State
67 N. W. Rep. 64. Power to appoint v. Gorton, 33 Minn. 345.
§ 260.] GOVERNING BODIES, OFFICERS AND AGENTS.
225
The tendency, however, is to confer the right in certain cases;
and under certain constitutions, which are silent upon the sub-
ject, the general right has been admitted.1 Seasonable prop-
erty qualifications may be required in the absence of constitu-
tional restriction.2 When the qualifications are fixed by the
constitution, the legislature cannot impose others as a condi-
tion to the holding of office.8 Thus, a statute requiring mem-
bers of a police commission to be members of a party having
the highest or next highest representation in the common coun-
cil is unconstitutional.4 So a statute assuming to grant special
privileges to freeholders in addition to those granted by the
constitution is class legislation and void.5 A number of stat-
utes have been enacted which provide that veterans shall be
given the preference over other citizens in the matter of ap-
pointment to office. Such statutes are probably valid when
applied to mere employees, and invalid when applied to public
officers,6
Jeffries v. Harrington, 11 Cola
191.
2 Darrow v. People. 8 Colo. 417.
SMcCrary, Elections, § 312; Barker
v. People, 3 Cowan (N. Y.), 685, 15
Am. Dec. 322.
*Rathbone v. Wirth, 150 N. Y. 459,
34 L. R A. 40a
5 State v. Goodville, 30 W. Va. 179,
6 L. R A. 621. In support of the
proposition that the legislature can-
not impose upon voters other quali-
fications than those fixed by the con-
stitution, see Kansas City v. Whipple,
136 Mo. 475, 35 L. R A. 746; Stock-
ton v. Powell, 29 Fla. 1, 15 L. R. A.
42; State v. Dillon, 32 Fla. 454, 22 I*
R. A. 124; Buckner v. Gordon, 81 Ky.
665; Short v. Maryland, 80 Md. 392.
6 Sullivan v. Gilroy, 55 Hun (N. Y.),
285; People v. French, 52 Hun ($. Y.),
464; Opinion of Justices, 145 Mass.
587; State v. Delaney (N. J., 1893), 25
AtL Rep. 946. In Brown v. Russell,
166 Mass. 14, 43 N. E. Rep. 1005, 33 L.
R A. 253, the court said: "Can the
legislature constitutionally provide
that certain public offices and em-
15
ployments which it has created shall
be filled by veterans in preferment
to all other persons, whether the vet-
erans are or are not found or thought
to be actually qualified to perform
the duties of the offices and employ-
ments by some impartial and com-
petent officer or board charged with
some public duty in making the ap-
pointments? If such legislation is
not constitutional as regards public
offices, the question incidentally may
arise whether a distinction can be
made between public offices and em-
ployments by the public which are
not offices. Public offices are created
for the purpose of effecting the ends
for which government has been in-
stituted, which are the common good
and not the profit, honor or private
interest of any man, family or class
of men. In our form of government
it is fundamental that public offices
are a public trust, and that the per-
sons to be appointed should be se-
lected solely with a view to the pub-
lic welfare." It was held that the
members of the police force were
226 MODE AND AGENCIES OF CORPORATE ACTION. [§ 261.
§ 261. Conditions precedent to entering upon an office. — An
office must be accepted, but no particular form of acceptance
is necessary. The mere entering upon the office is sufficient.1
At common law it was an indictable offense to refuse to accept
an office, but for ob\7ious reasons this rule has become of little
importance.2 When the taking of an oath is made a condition
precedent to admission to an office the officer possesses no rights
until this requirement is complied with.3 But a failure to take
the oath within the time fixed by law does not ipso facto cre-
ate a vacancy. He may take the oath at any time before any
steps are taken to have a vacancy declared.4 The form of
oath is ordinarily prescribed, and must be substantially fol-
lowed.5 The filing of a bond with sufficient sureties is almost
universally made a condition precedent to the right to enter
upon an office which requires the care and custody of money
or property. Unless the statute makes the filing of a bond
within a designated time a condition precedent to the right
to the office, the failure to file within such time will not work
a forfeiture of the right or create a vacancy. In such case
the officer may file his bond after he has entered upon the du-
ties of the office.6
In some states it is held that one who can qualify at the time
when called upon to assume the duties of an office is eligible
to the office although he was under some disability on the day
of election. This, on the theory that " it is an eligible officer
the law requires, and any person who can qualify himself to
take and hold the office is eligible at the time of the election." ''
public officers and that the act was 5 Davis v. Berger, 54 Mich. G92;
unconstitutional. See State v. Mil- Olney v. Pierce, 1 R. L 292; State v.
ler (Minn.)? 68 N. W. Rep. 732 (prefer- Trenton, 35 N. J. L. 485.
ence to veterans on public works). 6Knox Co. v. Johnson, 124 Ind.
In State v. Barrows (Minn., 1898), 73 145, 7 L. R. A. 684, and cases cited
N. W. Rep. 704, such a statute was in decision; Launtz v. People, 113
construed, but its constitutionality 111. 137. Many authorities are re-
was not questioned. See note to viewed and cited in Holt Co. v.
Louisville, etc. Co. v. N. R. Co., 14 L. Scott (Neb., 1898), 73 N. W. Rep. 681.
R A. 579, for cases on equality of See, also, note to Com. v. Johnson,
privileges, etc. 19 Am. St. Rep. 96. As to the right
1 Smith v. Moore, 90 Ind. 294. of a comptroller to refuse to ap-
2 See Hinze v. People, 92 111. 406. prove the bond of an officer, see
s People v. McKinney, 52 N. Y. 374 State v. Shannon, 132 Mo. 139.
4 State v. Ruff, 4 Wash. 234, 16 L. ' state v. Van Beek, 87 Iowa, 569. 19
R. A. 140. L. R. A. 622; State v. Smith, 14 Wis.
§ 262.]
GOVERNING BODIES, OFFICERS AND AGENTS,
227
This rule is adopted by congress with reference to the qualifi-
cations of its members.1 But the stronger reasons appear to
be with the courts which hold that the person must be eligible
at the time of his election as well as at the time of entering
upon the office.2 "When the constitution imposes a disability
upon a member of the legislature " during the time for which
he is elected " to hold any office, the disability continues until
the expiration of the full period for which he was elected, not-
withstanding his resignation as a member of the legislature.3
§ 262. Relation of officer to corporation. — The members of
a city council, like all other corporate officers, are trustees for
the public interest. They must act solely with reference to
497; State v. Trumpf, 50 Wis. 103;
Privet v. Bickford, 26 Kan. 53, 40
Am. Rep. 301; State v. Murray, 29
"Wis. 96, 9 Am. Rep. 489; Vogel v.
State, 107 IndL 374.
1 Gushing, Law and Prac. Leg. Ass.,
p. 79; McCrary, Elections, § 31 L
2 State v. Williams, 99 Mo. 291, 12
S. W. Rep. 905; Taylor v. Sullivan,
45 Minn. 309, 11 L.R. A. 212. In State
v. Moores (Neb., 1898), 73 N. W. Rep.
299, it was held that the word " eligi-
ble" relates to the capacity to be
elected or chosen to an office as well
as to hold the office. The court said:
"To hold that the disqualification
has reference alone to the time of
assuming -the duties of public office
is to disregard the etymology of the
word ' eligible.' The definition given
it in the Standard Dictionary is: 'Ca-
pable of being chosen; qualified for
selection or election; fit for or wor-
thy of choice or adoption. ' The word
is similarly defined in the Century
and other dictionaries. The term
' eligible,' as employed in the consti-
tution, should be given its plain and
ordinary signification; and, when so
construed, there is no escaping the
conclusion that it means capable of
being elected or chosen. Neither the
framers of the constitution, nor the
people in adopting it, intended to
permit a person to be elected to a
public office who at the time was
disqualified from entering upon the
duties thereof, and run the risk of
the removal of the disability between
the day of election and the com-
mencement of the official term. One
who is in default as collector and
custodian of public money or prop-
erty is disqualified from being legally
elected to any office of profit or trust
under the constitution or laws of the
state. This is the plain and natu-
ral construction of the language of
the constitution. These views find
abundant support in the authorities.
See Territory v. Smith, 3 Minn. 240
(GiL 164); Taylor v. Sullivan, 45
Minn. 309, 47 N. W. Rep. 802; State v.
Clarke, 3 Nev. 566; Searcy v. Grow,
15 CaL 117; People v. Leonard, 73 CaL
230, 14 Pac. Rep. 853; Drew v. Rogers
(CaL), 34 Pae. Rep. 1081; In re Corliss,
11 R. L 638; Carson v. McPhetridge,
15 Ind. 327; Jeffries v. Rowe, 63 Ind.
592; Hill v. Territory (Wash. T.), 7
Pac. Rep. 63. There is a division in
the authorities upon the subject, but
the ones cited above and those in
line therewith are believed to be sus.
tained by the better logic." See Peo-
ple v. Rogers (CaL), 46 Pac. Rep. 740,
50 Pac. Rep. 66a
3 State v. Sutton, 63 Minn. 147, 65
N. W. Rep. 262, 30 L. R. A. 630.
228 MODE AND AGENCIES OF CORPORATE ACTION. [§ 263.
the best interests of the community. Thus, in making improve-
ments, erecting public buildings, and similar acts, it must con-
sult only the interests of the people. Hence, although a lot
has been sold to the city at a price much below its value on
the understanding that the city hall would be built upon it, a
court of equity will not enforce specific performance of the
contract when there is available a more ample and favorable
site which can be procured for the purpose. A city council
cannot bind subsequent city officials to erect a public building
upon a particular lot if such officials believe that the lot is not
a suitable site for the building.1
An official may not take advantage of his position and of the
knowledge acquired by reason thereof to make a profit for
himself to the detriment of the corporation. Thus, if a mem-
ber of a board appointed to select a suitable site for a public
building purchases for himself a tract of land which he knows
the board considers suitable for municipal purposes, and sells
it to the board at an advanced price, he is liable to the city for
damages occasioned thereby. So, if he procures the purchase
of a lot by an agent for this purpose, with the knowledge and
co-operation of the agent, both principal and agent are liable.2
But it is quite well established that the officers controlling the
affairs of a public corporation may contract with ministerial
officers of the corporation unless such contracts are prohibited
by statute.3 But an officer cannot contract with himself per-
sonally.4
§ 263. Incompatible offices. — By the common law, if one
while occupying a public office accepts another which is incom-
patible with it, the first ipso facto terminates, without judicial
proceedings or any other act of the incumbent. The accept-
ance of the second office operates as a resignation of the first.5
1 Kendall v. Frey, 74 Wis. 26, 17 unless made so by statute. Niles v.
Am. St. Rep. 118. Muzzy, 33 Mich. 61, 20 Am. Rep. 670.
2 Short v. Symes, 150 Mass. 298, 15 *Fort Wayne v. Rosenthal, 75 Ind.
Am. St. Rep. 204. 136, 39 Am. Rep. 127.
3 United States v. Brindle, 110 U. S. 5 Mil ward v. Thatcher, 2 T. R. 81, 7
688; McBride v. Grand Rapids, 47 Eng. RuL Cas. 320 (the leading case);
Mich. 236; Board of Com'rs v. Mitch- Rex v. Pateman, 2 T. R. 777; Rex v.
ell, 131 Ind. 370, 15 L. R. A 520. Con- Patteson, 4 B. & Ad. 9 ; People v. Car-
tracts which do not involve a con- rique, 2 Hill (N. Y.), 93; Mechem,
flict of interests are not invalid Pub. Off., § 420; Throop, Pub. Off.,
§ 263.] GOVERNING BODIES, OFFICERS AND AGENTS. 229
Under this rule the question of compatibility must be deter-
mined by the courts. When the law forbids the holding of two
offices at the same time, or the holding of two lucrative offices,
or a state and federal office, the effect is the same. " In each
case the holding of the two offices is illegal; it is made so in one
case by the policy of the law and in the other by absolute law.
In either case the law presumes that the officer did not intend
to commit the unlawful act of holding both offices, and a sur-
render of the first is implied." 1 The common-law rule assumes
that the offices are derived from a common source. But state
authorities cannot declare a federal office vacant because the
incumbent has accepted a state office when the constitution
prohibits the holding of both at the same time.2 The incom-
patibility does not consist in the physical inability of one per-
son to discharge the duties of the two offices. There must be
some inconsistency in the functions of the offices; some con-
flict in the duties required of the officer; as where one has super-
vision of the other, or is required to deal with, control or assist
the other. As said by Judge Folger,3 " "Where one office is not
subordinate to the other nor tLe relations of the one to the
other such as are inconsistent and repugnant, there is not that
incompatibility from which the law declares that the accept-
ance of the one is the vacation of the other. The force of the
word in its application to this matter is that from the nature
and relations to each other of the two places they ought not
to be held by the same person, from the contrariety and antag-
onism which would result in the attempt by one person to faith-
fully and impartially discharge the duties of one toward the
incumbent of the other. Thus, a man may not be landlord and
§ 30. "The acceptance of the in- directly what he could not do di-
compatible office . . . absolutely rectly." Mechem, Pub. Off., § 421.
terminates the original office, leav- 1 State v. Bus, 135 Mo. 325, 33 L. R
ing no shadow of title in the posses- A. 616; State v. Draper, 45 Mo. 355.
sor, whose successor may be at once 2 De Turk v. Com., 129 Pa. St. 151,
elected or appointed, neither quo 15 Am. St. Rep. 705, 5 L. R. A. 853,
warranto nor motion being neces- note.
sary." Dillon, Mun. Corp., § 225. "An 3 People v. Green, 58 N. Y. 295;
exception is made to the general State v. Goff, 15 R L 507, 2 Am. St.
rule in those cases in which an offi- Rep. 921; State v. Bus, 135 Mo. 325,
cer cannot vacate the first office by 33 L. R A. 616; Folz v. Kerlin, 105
his own act, upon the principle that Ind. 221.
he will not be permitted to do in-
230 MODE AND AGENCIES OF CORPORATE ACTION. [§ 264.
tenant of the same premises. He may be landlord of one farm
and tenant of another, though he may not at the same hour be
able to do the duty of each relation. The offices must sub-
ordinate one the other, and they must per se have the right to
interfere one with the other, before they are incompatible at
common law." But an officer who has given bond for the faith-
ful performance of his duties cannot relieve himself from its
responsibilities by resignation. Thus, where a tax collector
accepted the incompatible office of selectman, the court said : l
" The acceptance of an office by one disqualified to hold it by
reason of holding an incompatible office is not necessarily a res-
ignation of the prior office, unless it is made so by special
statutory or constitutional provision." A person may hold any
number of offices if they are not incompatible or not forbidden
by statute.2
§ 264. Illustrations. — There are many cases illustrating the
rule that a person cannot hold two offices which are incom-
patible. The following have been held incompatible : Governor
and member of the legislature ; 3 sheriff and justice of the peace ; *
member of prudential committee and auditor of a school dis-
trict;5 governor and mayor of a city;6 state treasurer and jus-
tice of the peace ; 7 secretary and recorder of a city ; 8 constable
and justice of the peace;9 councilman and city marshal;10 jus-
tice of the peace and deputy-sheriff ; n township trustee and
postmaster;12 postmaster and county judge;13 alderman and
member of congress;14 jurat and town clerk;15 city clerk and
township supervisor.16
1 Attorney-General v. Marston, 66 9 Magie v. Stoddard, 25 Conn. 565,
N. H. 485, 13 L. R. A. 670. 68 Am. Dec. 375.
2 Badeau v. United States, 130 U. S. 10 State v. Hoyt, 2 Oreg. 246.
439; Converse v. United States, 21 u State v. Goff, 15 R. L 505, 2 Am.
How. (U. S.) 470. St. Rep. 921, note.
SBarnum v. Oilman, 27 Minn. 466, 12Foltz v. Kerlin, 105 Ind. 221, 55
38 Am. Dec. 304. Am. Rep. 197.
4 Stubbs v. Lee, 64 Me. 195, 18 Am. 13 Hoglan v. Carpenter, 4 Bush (Ky.),
Rep. 251. 89.
5 Cotton v. Phillips, 56 N. H. 220. 14 People v. Common Council, 77
6 Attorney - General v. Common N. Y. 503, 33 Am. Rep. 659.
Council of Detroit (Mich.), 71 N. W. w Milward v. Thatcher, 2 T. R 81, 7
Rep. 632, 37 L. R. A. 211. Eng. Rul. Cas. 320, annotated.
7 State v. Hutt, 2 Ark. 282. 16 North way v. Sheridan (Mich.),
* State v. Brinkerhoff, 66 Tex. 45. 69 N. W. Rep. 82.
§ 265.] GOVERNING BODIES, OFFICERS AXD AGENTS. 231
The following offices have been held compatible : A deputy-
sheriff in a city and a director of the public schools of the
city ; l clerk of the circuit court and clerk of the county court; *
school director and judge of elections;3 clerk of the district
court and court commissioner ; 4 crier and messenger of a court ; 5
member of the assembly and clerk of the court of special ses-
sions.6
A lucrative office is one where pay is affixed to the perform-
ance of the duties.7 The offices of township trustee,8 recorder
and county commissioner,9 supreme court reporter,10 school
trustee of an incorporated town,11 are " lucrative offices."
Park commissioners are officers under the city government,
within the meaning of a provision that city officers shall not be
eligible to the legislature, where the power to appoint or sus-
pend them is vested in the city council, and they are required
to take the constitutional oath of office and are prohibited from
holding any other office.12 If an office is purely municipal, the
officer is not within a constitutional provision declaring that no
person shall hold more than one lucrative office at the same
time.13 A county commissioner is not an officer of the common-
wealth and cannot be impeached.14
§ 265. Officers de facto. — A de facto officer is one who dis-
charges the duties of an office under color of title.15 There can
be no de facto officer where the de jure officer is in possession
of the office.16 The doctrine that the acts of de facto officers
l State v. Bus, 135 Mo. 325, 33 L. R, sioners, 129 N. Y. 360, 14 L. R A. 646,
A. 616. annotated.
* State v. Lusk, 48 Mo. 242. « Chambers v. Barnard, 127 Ind.
»In re District Attorney, 11 Phila. 365, 11 L. R. A. 6ia
645. i< Opinion of Justices, 167 Mass. 599,
* Kenney v. Goergen, 36 Minn. 90. 46 N. E. Rep. 11&
s Preston v. United States, 37 Fed. ™ The acts of a de facto officer be-
Rep. 417. fore the title to the office is deter-
6 People v. Green, 58 N. Y. 295. mined are valid and cannot be col-
7 State v. Kirk, 44 Ind. 401. laterally assailed. Hamlin v. Kass-
8 Fultz v. Kerlin, 105 Ind. 231. afer, 15 Oreg. 456, 3 Am. St Rep. 176;
SDailey v. State, 8 Blackf. (Ind.) Jewel v. Gilbert, 64 N. H. 13, 10 Am.
329. St Rep. 357. '
i°Kerr v. Jones, 19 Ind. 351. 16 As to liability of sureties on the
11 Chambers v. Barnard, 127 Ind. bond of an officer de facto, see Holt
365, 11 L. R. A. R13, note. Co. v. Scott (Neb., 1898), 73 X. W.
12 People v. State Board of Commis- Rep. 681. In Jones v. Scanland, 6
232
MODE AND AGENCIES OF CORPORATE A6TION. [§ 265.
are valid1 applies to the acts of members of the governing body
of a municipal corporation.2 The doctrine, however, has no
application to a case where the acts of the officer are challenged
at the outset and before any person has been or can be misled
or any right of either a public or private character accrued.3
Before there can be a de facto officer there must be a dejure
office. In a case where it was sought to sustain the acts of cer-
tain commissioners who were appointed under an unconstitu-
tional act Mr. Justice Field said : 4 " The doctrine which ffives
O
validity to acts of officers de facto, whatever defect there may
be in the legality of their appointment or election, is founded
upon considerations of policy and necessity, for the protection
of the public and individuals whose interests may be affected
thereby. Offices are created for the benefit of the public, and
Humph. (Tenn.) 195, — an action upon
an official bond, — it was said: "Al-
though the election of a person as
sheriff was void, and his induction
into office illegal by reason of his
having then been a defaulter to the
treasury, and he did not thereby be-
come sheriff de jure, yet he became
sheriff de facto, and those who vol-
untarily bound themselves for the
faithful performance of his duties,
as sureties, cannot absolve them-
selves from their obligation by in-
sisting that he was no sheriff." In
the case of State v. Rhbades, 6 Nev.
352, it was announced: "Where a
state treasurer, re-elected in 1866, ac-
cepted a new commission and took
a new oath, and continued to dis-
charge the duties of the office, but
failed to file a new official bond
within the time prescribed by law,
held, that he was an officer de facto,
and holding as of the new term;
and that the sureties on the new
bond afterwards filed were estopped
from denying that he was holding
as of the new term de jure. . . .
A person discharging the duties of
a public office under color of right
is an officer de facto, and not a
mere intruder. . . . Where a per-
son discharges the duties of an of-
fice as an officer de facto, and not as
a mere intruder, he and his sureties
are estopped by the recitals in his
official bond from denying that he
is entitled to the office."
1 School District v. Smith, 67 Vt
566, 32 AtL Rep. 484.
2 Williams v. Boynton, 147 N. Y.
426, 42 N. E. Rep. 184,
8 Decorah v. Bullis, 25 Iowa, 12;
Lover v. Glochlin, 28 Wis. 364; Peo-
ple v. Nostrand, 46 N. Y. 378. In the
leading case of State v. Carroll, 38
Conn. 449, 9 Am. Rep. 409, the court
said: "An officer de facto is one
whose acts, though not those of a
lawful officer, the law, upon princi-
ples of policy or justice, will hold
valid, so far as they involve the in-
terests of the public or third per-
sons, where the duties of the office
were exercised . . . under color
of a known election or appointment,
void because the officer was not eligi-
ble, . . . such ineligibility being
unknown to the public." Holt Co.
v. Scott (Neb.), 73 N. W. Rep. 681,
and many cases cited by the court.
< Norton v. Shelby Co., 118 U. S.
425; People v. Hecht, 105 CaL 621,
27 L. R. A. 203.
§ 266.] GOVERNING BODIES, OFFICERS AND AGENTS. 233
private parties are not permitted to inquire into the title of
persons clothed with the evidence of such offices and in appar-
ent possession of their powers and functions. For the good
order and peace of society, their authority is to be respected
and obeyed until in some regular mode prescribed by law their
title is investigated and determined. It is manifest that end-
less confusion would result if in every proceeding before such
officers their title could be called in question. But the idea of
an officer implies the existence of an office which he holds. It
would be a misapplication of terms to call one an officer who
holds no office, and a public office can exist only by force of law.
This seems to us so obvious that we should hardly feel called
upon to consider any adverse opinion on the subject but for
the earnest contention of plaintiff's counsel that such existence
is not essential, and that it is sufficient if the office be provided
for by any legislative enactment however invalid. Their posi-
tion is that a legislative act, though unconstitutional, may in
terms create an office, and nothing further than its apparent
existence is necessary to give validity to the acts of its assumed
incumbent. . . . An unconstitutional act is not a law ; it
confers no rights ; it imposes no duties ; it affords no protec-
tion ; it creates no office ; it is in legal contemplation as inoper-
ative as though it had never been passed. . . . For the ex-
istence of a de facto officer there must be an office de jure.
. . . "Where no office legally exists the pretended officer is
merely an usurper, to whose acts no validity can be attached."
A mere intruder cannot be regarded as an officer de facto.1
§ 266. De facto officers — Continued. — Two persons cannot be
officers de facto for the same office at the same time. If an
office is filled and the duties pertaining thereto are performed
by an officer or a body dejure, another person or body, although
claiming the officer under color of title, cannot be an officer or
body de facto, and the relations of the parties cannot be changed
by the physical ousting of the body or officer de jure from the
room where the business is transacted.2 One is not a de facto
i Dabney v. Hudson, 68 Miss. 292, duties of a public office without an
24 Am. St. Rep. 276; Hamlin v. Kass- attempt to qualify is without color
afer, 15 Oreg. 456, 3 Am. St. Rep. of title. Creighton v. Com., 83 Ky.
176. See note in 4 Am. St Rep. 147. 147.
One who assumes to perform the 2In re Gunn, 19 L. R. A. 519; Mo
234 MODE AND AGENCIES OF COKPOBATE ACTION. [§ 267.
officer who has not the reputation of being such an officer, and
whose acts and authority as such officer are not generally recog-
nized or acquiesced in, and who does not exercise the duties of
the office under such circumstances of continuance, reputation,
acquiescence or otherwise as to afford a reasonable presumption
that he was such officer.1 One who is appointed to an office from
which the incumbent was never legally removed, and who re-
tained possession of the property of the office and continued to
discharge its duties, is not an officer de facto? A person who
has been elected to an office in a manner consistent with an
honest misapprehension of the law, and not in palpable disre-
gard of its provisions, is an officer de facto although the elec-
tion may be held invalid.3 The members of a commission duly
appointed to prepare a city charter are de facto officers, although
not possessing the necessary qualification of five years' resi-
dence.4 When the right of confirmation is vested in the council,
a person appointed by the mayor and wrongfully placed in
possession of an office without the consent of the council is a
mere intruder.5
§ 267. Compensation. — The compensation of public officers
is governed entirely by the charter or statute. It is under the
control of the legislature, and in the absence of constitutional
restrictions it may be increased, diminished or entirely taken
away at any time.6 It follows that an officer can recover no
compensation for services rendered unless it was provided for
by law at the time the office was accepted.7 When a statute
Chaon v. Leavenworth County, 8 7McCumber v. Waukesha Co., 91
Kan. 438; State v. Blossom, 19 Nev. Wis. 442, 65 N. W. Rep. 51; Locke v.
31°. City of Central, 4 Colo. 65, 34 Am.
1 State v. Pinkerman, 63 Conn. 176, Rep. 66; Langdon v. Casselton, 30
22 L. R. A. 563; Hamlin v. Kassafer, Vt. 285; Romero v. United States, 24
15 Oreg. 456, 3 Am. St. Rep. 176. Ct. of Cl. 331, 5 L. R, A. 69; Kinney
2Halgrenv. Campbell, 82 Mich. 255, v. United States, 60 Fed. Rep. 883.
9 L. R. A. 408. When no salary is attached to the
3 State v. Mayor of Atlantic City, office of mayor, an incumbent of the
52 N. J. L. 332, 8 L. R. A. 697. office cannot collect fees for services
4 People v. Hecht, 105 Cal. 621, 27 rendered in the capacity of a justice
L. R. A. 20a of the peace. Howland v. Wright
»Kempster v. City of Milwaukee Co., 82 Iowa, 164, 47 N. W. Rep. 1086.
(Wis., 1897), 72 N. W. Rep. 743. See Prince v. City of Fresno, 88 CaL
«Cooley, Const. Lim., § 276; Swan 407, 26 Pac. Rep. 606.
v. Buck, 40 Miss. 268; People v. Mor-
rell] 21 Wend. (N. Y.) 563.
§ 268.] GOVEEXLXG BODIES, OFFICERS AXD AGENTS. 235
allowing an officer compensation admits of two interpretations
it should be construed strictly against the officer.1 It is gen-
erally provided, however, that the salary shall not be increased
or diminished during the term of office.2 An officer cannot re-
cover extra compensation for extra services imposed upon him
after he has entered upon the performance of his duties. In a
recent case the supreme court of Iowa said : 3 " By the act of
the legislature authorizing the creation of boards of health the
mayor was made a member of said board and its chairman.
While additional duties were thus imposed upon the mayor no
additional compensation was allowed therefor. This he knew
when he accepted the office, and he is bound to perform the
duties of the office for a salary fixed, and cannot legally claim
additional compensation for additional services, even though
they be subsequently imposed upon him ; and it matters not
that the salary was inadequate." 4
§268. Compensation — De facto officers. — The general rule
is that the salary follows the legal title to the office. Hence,
only an officer who is legally elected or appointed to an office
can maintain an action to collect the salary.5 Thus, a police
officer cannot recover for salary during a period when he was
wrongfully prevented from performing the duties of his posi-
1 United States v. Clough, 55 Fed. sign to one he could to many, and
Rep. 373, 5 C. C. A. 140. every purchaser would be entitled
2 Such a constitutional provision to the rights of assignees of claims
does not apply to police officers, against individuals, and in the case
Mangam ,v. Brooklyn, 98 N. Y. 585, 5 of conflicting interests or of dis-
Am. Rep. 705. putes between the officer and his
3 State v. Olinger (Iowa, 1897), 72 alleged transferee the government
N. W. Rep. 441. would have to decide at its peril be-
4 People v. Vilas, 36 N. Y. 459; tween them or be subjected to lid-
Mayor v. Kelley, 98 N. Y. 467; Mar- gation. . . . An officer having as-
ehall Co. v. Johnson, 127 Ind. 238, 26 signed his interest in a compensa-
N. E. Rep. 821 ; Pierie v. Philadel- tion to become due him for future
phia, 139 Pa. St. 573, 21 AtL Rep. 90. public services would have less in-
An assignment by a public officer of terest in the punctual and efficient
his unearned salary as security for a performance of his duties, and in the
debt is contrary to public policy and case pf improvident assignments
void. The reasons for this rule apply might be without the ability to dis-
with greater force to fees payable to charge them." Bowery Nat. Bank
an officer, as for example a sheriff, v. Wilson, 122 N. Y. 478, 9 L. R. A.
upon the due performance of public 706.
duty which cannot be discharged by * Phelan v. Granville, 140 Mass. 386.
any other officer. " If he could as-
236 MODE AND AGENCIES OF CORPORATE ACTION. [§ 268.
tion, unless he can prove that he was legally appointed.1 As a
general rule, an officer who has been prevented through no
fault of his own from performing the duties of his office can
recover his salary during the interim, and cannot be compelled
to account for wages earned in other and different employ-
ments.2 But under a charter providing that police officers shall
be paid " for the time engaged in active service," an officer im-
properly removed and afterwards reinstated is not entitled to
pay pending reinstatement.3 After an officer has performed
services under a legal election or appointment, he may recover
from the corporation the salary which is by law affixed to the
office. But the relation between a public corporation and its
officer is not based upon contract, and there is nothing to pre-
vent the corporation from abolishing the office and thus depriv-
ing the officer of his salary for the unexpired term.4
A de facto officer cannot maintain an action for salary.8 But
the general rule probably is that the payment of salary to a
de facto officer before the claim to the office has been deter-
mined against him by a competent tribunal will defeat the
right of the dejure officer to recover the salary from the cor-
poration.6 "Where this rule prevails the remedy of the dejure
1 Yorks v. City of St. Paul, 62 Minn, of council which was repealed was
250, 64 N. W. Rep. 565. not itself a general law, but a law
2 Fitzsimmons v. Brooklyn, 102 creating a particular office, which
N. Y. 536, 7 N. E. Rep. 878. the power creating it had the same
3 Wilkinson v. Saginaw (Mich., power to abolish as it had to create."
1897), 70 N. W. Rep. 143. State v. Pinkerman, 63 Conn. 176, 22
4 In City Council of Augusta v. L. R. A. 653. But see State v. Fried-
Sweeny, 44 Ga. 463, 9 Am. Rep. 172, ley, 135 Ind. 119, 21 L. R. A. 634, cited
the court said: "The right of an in- in § 276, infra. A salaried officer
cumbent to an office does not de- cannot set off his salary against a
pend on any contract in the sense claim by the city against him for
of a bargain between him and the moneys collected by him in his offi-
public. His right depends on the cial capacity. New Orleans v. Fin-
law under which he holds. If that nerty, 27 La. Ann. 681, 21 Am. Rep.
law be one capable of being repealed 569.
by the power which acts, the right 5 Andrews v. Portland, 79 Me. 484,
of the officer is gone. That clause of 10 Am. St. Rep. 280; Romero v.
the bill of rights in our constitution United States, 24 Ct. of Cl. 331, 5 L.
which prohibits the passage of a law R. A. 69. See note, 54 Am. Rep. 730.
affecting private rights, or rather 6Creely Co. v. Milne, 36 Neb. 301,
the varying of a general law by 19 L. R. A. 689, ann.; Nichols v. Mo-
special legislation so as to affect pri- Lean, 101 N. Y. 526, 54 Am. Rep. 730;
vate rights, cannot affect this ques- State v. Clark, 52 Mo. 508; Parker v.
tion, since this law or ordinance Dakota Co., 4 Minn. 59 (GiL 39); Steu-
§ 269.]
GOVERNING BODIES, OFFICEBS AND AGENTS.
237
officer is against the de facto officer.1 Bat the more logical
rule is that the de jure officer is entitled to recover for the sal-
ary notwithstanding it has been paid to a de facto officer.2
§269. Increase of salary — Misdemeanor. — In some states
it is made a misdemeanor for a member of a city council to
vote upon any question in which he is interested. Under a
charter which provided that no alderman " shall vote on any
question in which he is directly or indirectly interested," and
a statute which provided that " when the performance of an
act is prohibited by any statute and no penalty for the viola-
tion of such statute is imposed, the doing of such act is a mis-
demeanor," it was held that an alderman who voted for an
increase of his salary was guilty of a misdemeanor. The court
benville v. Gulp, 38 Ohio St. 18, 43
Am. Rep. 417; Michel v. New Or-
leans, 32 La. Ann. 1094; Saline Co.
Com'rs v. Anderson, 20 Kan. 298, 27
Am. Rep. 171; Wayne Co. Auditor
v. Benoit, 20 Mich. 176; Demarest v.
New York, 147 N. Y. 203, 41 N, E. Rep.
405.
1 Bier v. Gorell, 30 W. Va. 95, 8 Am.
St. Rep. 17. In Kreitz v. Behrens-
meyer, 149 I1L 496, 24 L. R A. 59, the
court said: "An examination of the
decisions of the courts of that coun-
try shows a uniform declaration of
the principle that a de jure officer
has the right of action to recover
against an officer de facto by reason
of the intrusion of the latter into his
office and his receipt of the emolu-
ments thereof. Among others, the
following opinions of English courts
may be referred to as sustaining this
right of recovery: Vaux v. Jeffren,
2 Dyer, 114; Arris v. Stukely, 2 Mod.
260; Lee v. Drake, 2 Salk. 468; Webb's
Case, 8 Coke, 45. By the adoption of
the common law of England the prin-
ciple announced in these cases was
adopted as the law of this state, for
the principle is of a general nature
and applicable to our constitution.
On the basis of a sound public policy,
the principle commends itself for
the reason that one would be less
liable to usurp or wrongfully retain
a public office and defeat the will of
the people or the appointing power,
as loss would result from wrongful
detention or usurpation of an office.
The question has frequently been
before the courts of the different
states and of the United States, and
the great weight of authority sus-
tains the doctrine of the common
law." Citing United States v. Addi-
son, 6 WalL 291 ; Dolan v. New York,
63 N. Y. 74, 23 Am. Rep. 163; Glass-
cock v. Lyons, 20 Ind. 1, 83 Am. Dec,
299; Kessel v. Zeiser, 102 N. Y. 114, 55
Am. Rep. 769; Nichols v. McLean, 115
N. Y. 526, 54 Am. Rep. 730; People v.
Miller, 24 Mich. 458, 9 Am. Rep. 131;
Hunter v. Chandler, 45 Mo. 452; Peo-
ple v. Smythe, 28 CaL 21; Pettit v.
Rossau, 15 La. Ann. 238. Contra,
Stuher v. Kern, 44 N. J. L. 181, 43
Am. Rep. 353.
2 State v. Carr, 129 Ind. 44, 13 L. R.
A. 177; Andrews v. Portland, 79 Me.
485, 10 Am. St Rep. 280; Ward v.
Marshall, 96 CaL 153, 30 Pac. Rep. 113;
Memphis v. Woodward, 12 Heisk.
(Tenn.) 499, 27 Am. Rep. 750; Kemp-
ster v. City of Milwaukee (Wis., 1897),
72 N. W. Rep. 743.
238 MODE AND AGENCIES OF CORPORATE ACTION. [§ 270.
said: "It is not necessary that any injurious consequences
should have resulted from the misconduct of the officers. The
crime consists in a perversion of their powers and duties to
the purposes of fraud and wrong ; and they are punishable al-
though no injury resulted to any individual, and no money was
drawn from the treasury by reason of the vote to increase the
salaries." 1 A provision that the salary of an -officer shall not
be reduced during his term of office does not prevent its re-
duction between the time of his appointment and of entering
upon the duties of the office.2
§270. Compensation of employees — Attorneys. — The prin-
ciples governing the compensation of public officers have no ap-
plication to ordinary employees.3 Where the salary of a city
attorney is fixed by law, he can receive no other compensation
for services rendered.4 But unless restrained by its charter, a
public corporation may employ an attorney to transact its legal
business, and may be compelled to pay a reasonable compensa-
tion for such services.5 When a city has authority to allow its
attorney " fees," it may allow him a commission on all moneys
collected in civil and criminal cases.6 A provision that the
salary of a city attorney shall not be increased during his term
of office prevents an increase in his salary although the city
passes from the second to the first class during his term of of-
fice.7 A county attorney may receive extra compensation for
services rendered ouii of the county under the direction of the
county commissioners.8
1 State v. Shea (Iowa, 1897), 72 «Liddy v. Long Island City, 104
N. W. Rep. 300. As bearing upon N. Y. 218; Hayes v. Oil City, 11 Atl.
the question see State v. Van Aucken Rep. 63. The duty of a city attorney
(Iowa), 68 N. W. Rep. 454; Duty v. to attend to "all suits, matters and
State (Ind. App.), 36 N. E. Rep. 655; things" in which the city is inter-
People v. Bogart, 3 Park. Grim. Rep. ested is not limited to suits in any
143. In Macy v. City of Duluth particular courts. Buck v. Eureka,
(Minn., 1897), 71 N. W. Rep. 687, it is 109 Cal. 504, 30 L. R. A. 409.
held that under the city charter a 5 State v. Patterson, 40 N.J. L., 186;
poundmaster cannot recover on an Langdon v. Casselton, 130 Vt. 385.
implied contract for use and occu- 6 Austin v. Johns, 62 Tex. 179.
pation of premises furnished by him 7 Barnes v. Williams, 53 Ark. 205,
to the city for use as a public pound. 13 S. W. Rep. 845. As to the fees of
2 Weschv. Common Council (Mich., a city attorney, see, also, Smith v.
1895), 64 N. W. Rep. 1051. Waterbury, 54 Conn. 174, 7 Atl. Rep.
3 Oity of Ellsworth v. Rossiter, 46 17.
Kan. 237, 26 Pac. Rep. 674 8 Leavenworth County v. Brewer,
§ 271.] GOVERNING BODIES, OFFICEES ASV AGENTS.
239
§ 271. The mayor. — The mayor is the general executive offi-
cer of the corporation, although he sometimes performs the
judicial duties of a justice of the peace. His court is not a
court of record, and the corporate seal need not be attached to
a warrant issued by him.1 Conferring the jurisdiction of a
justice of the peace upon a mayor does not contravene the
provision of the constitution that no person charged with the
exercise of powers properly belonging to either the executive,
legislative or judicial department shall exercise any functions
pertaining to either of the others, as this applies only to the
different departments of the state government.2 The executive
duties of the mayor pertain to him only as an officer of the
corporation. Where the mayor presides over the city council
he is ordinarily given the right to vote under certain circum-
stances. Where two official newspapers are to be chosen by
the council and three papers receive the votes of four alder-
men each, the mayor in casting the deciding vote may vote for
two papers.3 If there is no limitation upon the right of the
mayor to cast the deciding vote, it ma}7 be upon the question
of the choice of a candidate for office as well as upon a ques-
tion of general legislation.4 If the mayor is a lawyer by pro-
fession and there is no collusion or fraud, he may recover for
services rendered in his professional capacity in defending a
suit against the city under the authority of a resolution of the
council.5 The compensation of a mayor cannot be entirely
taken away under the authority of an ordinance authorizing the
council to change the same.6 It is no part of the duties of the
mayor to aid private individuals in obtaining their right to
examine the books of other city officials, although the mavor
is entitled to investigate such books himself and to give the in-
formation so acquired to the public. The obstruction of an
executive officer in the exercise of his lawful right to examine
the books of a public office for a lawful purpose is an indictable
9 Kan. 307; White v. Polk, 17 Iowa, » Wooster v. Mullins, 64 Conn. 340,
413; Hoffman v. Greenwood County, 25 L. R A. 694.
23 Kan. 307. * State v. Pinkerman, 63 Conn. 176,
1 Santo v. State, 2 Iowa, 155, 63 22 L. R A. 653.
Am. Dec. 487; Scott v. Fishbate, 117 » Mayor v. Muzzy, 33 Mich. 61.
N. G 265, 30 L. R A. 696. 6 State v. Nashville, 15 Lea (Tenn.),
2 People v. Provines, 34 CaL 518. 6&7, 54 Am. Rep. 427.
24:0 MODE AND AGENCIES Off COEPOEATE ACTION. [§ 272.
offense.1 In the absence of the mayor the officer who is by
law designated for the purpose exercises all the powers of the
mayor.2
§ 272. Control ty tlie courts. — Like other natural and arti-
ficial bodies, a municipal council exercises its authority subject
to the control of the courts. This control, however, will not
be extended to cases in which the council has exercised proper
discretionary power, as the court will not substitute its judg-
ment for that of the persons in whom the discretion is vested.
But the rule is limited by the restriction "that the discretion
must be exercised within its proper limits for the purposes for
which it is given, and from the motives by which alone those
who gave the discretion intended that its exercise should be
governed." 3 Thus, where power is given to a board of super-
visors to fix water rates, it is intended that the rate of com-
pensation fixed shall be reasonable and just, and if the rates
are fixed so low as to amount to practical confiscation of the
property of the water company the court will provide a rem-
edy.4 A court of equity will not interfere or revise the discre-
tion and judgment of a common council as to the place and
manner of the erection of a public building.5 Such questions
necessarily require the exercise of discretion and judgment by
the council. Although a board of aldermen is made the sole
judge of the qualification, election and return of its own mem-
bers, its action is subject to the supervision of the courts.6
Such power is judicial in its nature; and the council will be
required to observe the limits of its jurisdiction, and to exer-
iTryon v. Pingree (Mich., 1897), 70 « Kendall v. Frey, 74 Wis. 26, 17
N. W. Rep. 905, 37 L. R. A. 222. Am. St. Rep. 118.
2 Datz v. Cleveland, 52 N. J. L. 188, 6 State v. Gates, 35 Minn. 385;
7L. R. A. 431. An order of the mayor, Com. v. Allen, 70 Pa. St. 465: State
not required to be in writing, may v. Kemp, 69 Wis. 470, 2 Am. St. Rep.
be by letter or orally, in any manner 753. Some authorities sustain the
which is understood by all parties rule that where the body is given
as a direction. Eichenloub v. St. power to judge of the election and
Joseph, 113 Mo. 385, 18 L. R. A. 590. qualification of its members the
8 Davis v. Mayor of New York, 1 court has no reviewing power. Lin-
Duer, 451; People v. Sturtevant, 9 egar v. Rittenhouse, 94 III 208; State
N. Y. 263, 59 Am. Dec. 536. v. Marlowe, 15 Ohio St 114; Mayor
< Spring Valley W. W. v. San Fran- v. Morgan, 7 Mart (N. S.) 1, 18 Am.
Cisco, 82 Cal. 286, 16 Am. St. Rep. Dec. 232.
116! See § 145, supra.
§§ 273, 274] GOVERNING BODIES, OFFICERS AND AGENTS. 241
cise its power regularly. If a council refuses to obey a man-
damus ordering the payment of a claim, those members who
voted against such payment may be punished for contempt of
court.1
§ 273. Holding over after expiration of term. — Unless the
contrary is expressly provided, an officer elected or appointed
for a fixed term is entitled to continue in office until his suc-
cessor is elected and qualified.2 Hence, one whose term of
office is for a specified period " and until his successor is elected
and qualified " will remain in office if the person who is elected
to succeed him has not the necessary legal qualifications.3 A
constitutional provision that " the general assembly shall not
create any office the tenure of which shall be more than four
years " does not prevent the incumbent of an office from hold-
ing until his successor is elected and qualified.4 The incumbent
will hold over when there is a failure to elect his successor.5
But when the failure is due to the neglect of the incumbent to
perform some duty imposed upon him by law, such as to give
notice of an election, he cannot hold over.8
§274. Resignation. — At common law an officer cannot re-
sign his office at his pleasure. "As civil officers are appointed
for the purpose of exercising the functions and carrying on the
operations of government and maintaining public order, a polit-
ical organization would seem to be imperfect which should allow
the depositaries of its power to throw off their responsibilities
at their own pleasure. This certainly was not the doctrine of
the common law. In England a person elected to a municipal
office was obliged to accept it and perform its duties, and he
1 State v. Judge, 38 La. Ann. 43, 58 'Taylor v. Sullivan, 45 Minn. 309,
Am. St Rep. 158; Board of Com. v. 22 Am. St Rep. 709, 11 L. R. A. 272.
Sellew, 99 U. S. 624 See People v. Rodgers, supra,
2 State v. Smith, 87 Mo. 158; Peo- « State v. Harrison, 113 Ind. 234, 3
pie v. Rodgers (CaL), 46 Pac. Rep. Am. St Rep. 6G3.
740, reversed 50 Pac. Rep. 668; State *Lafferty v. Huffman (Ky.), 35 S.
v. Bulkeley, 61 Conn. 287, 14 L. R. A. W. Rep. 123, 32 L. R. A. 20i
657; State v. Harrison, 113 Ind. 440; 6 People v. Bartlett, 6 Wend. (N. Y.)
Kimberlain v. Tow, 130 Ind. 120, 14 422. A contrary rule would enable
L. R. A. 858; McMillin v. Richards, the officer to profit by his own care-
45 Neb. 786, 64 N. W. Rep. 242; State lessness or wrong,
v. Fagin, 42 Conn. 32.
16
242 MODE AND AGENCIES OF CORPORATE ACTION. [§ 275.
subjected himself to a penalty by refusal. An office was re-
garded as a burden which the appointee was bound, in the in-
terest of the community and the government, to bear. And
from this* it follows of course that after an office was conferred
and assumed it could not be laid down without the consent of
the appointing power. This was required in order that the
public interests might suffer no inconvenience for the want of
public servants to execute the laws."1 The acceptance of a
resignation may be manifested by a formal declaration or by
the appointment of a successor. "To complete a resignation,"
says Mr. "Willcock, " it is necessary that a corporation manifest
their acceptance of the offer to resign, which may be done by
an entry in the public books, or electing another person to fill
the place, treating it as vacant."2 In some jurisdictions it is
held that the holding of office is not compulsory, and that a
resignation takes effect without acceptance, and that a successor
may be appointed without the formality of an acceptance of the
resignation.3 When it is provided that an incumbent shall hold
office until his successor is qualified, he is not relieved from the
duties of the office even by the acceptance of his resignation.4
§ 275. Amotion. — Amotion relates to officers, and disf ran-
chisement to corporators or members of a corporation. The
former is the removal of an officer from his office without de-
priving him of his membership in the corporation. The latter
is the depriving a member of his membership in the corpora-
tion.8 The English doctrine of disfranchisement is not appli-
cable to municipal corporations in this country. At common
i Willcock, Corp., p. 129; Grant, 2 Willcock, Corp., p. 239; Edwards
Corp., pp. 221, 223, 268; Dillon, Mun. v. United States, 103 U. S. 471.
Corp., I, § 163; Rex v. Bower, 1 Barn. » Reiter v. State, 51 Ohio St. 74, 23
& Cress. 585; Rex v. Burder, 4 T. R. L. R. A. 681; People v. Porter, 6 Cal.
778; Rex v. Lone, 2 Stra. 920; Rex v. 26; State v. Lincoln, 4 Neb. 260; State
Jones, 2 Stra. 1146; Hope v. Hender- v. Clark, 3 Neb. 566; Bunting v. Wil-
son, 4 Dev. (N. C.) L. 1; Van Orsdale lis, 27 Gratt 144, 21 Am. Rep. 338.
v. Hazard, 3 Hill (N. Y.) 243; State v. < People v. Barnett Tp., 100 111. 33?;
Ferguson, 31 N. J. L. 170. The com- Jones v. Jefferson, 66 Tex. 573;
mon-law rule is in force in some United States v. Green, 53 Fed. Rep.
states. State v. Clayton, 27 Kan. 442, 769 ; Badger v. United States, 93 U. S.
41 Am. Rep. 413; Hope v. Henderson, 599.
15 N. C. 29, 25 Am. Dec. 677; Coleman » Willcock, Mun. Corp., § 708; Dil-
v. Sands, 87 Va. 689. Ion, Mun. Corp., I, § 238; Kyd, Corp.
50-94; Angell & Ames, Corp., ch. X1L
§ 276.] GOVERNING BODIES, OFFICERS AND AGENTS. 243
law a corporation has implied power to remove a corporate
officer for just cause. In the leading case l Lord Mansfield said
that there are three sorts of offenses for which an officer or
corporator may be discharged : 1. Such as have no immediate
relation to his office, but are in themselves of so infamous a
nature as to render the offender unfit to execute any public
franchise. 2. Such as are only against his oath and the duty
of his office as a corporator, and amount to breaches of the
tacit condition annexed to his franchise or office. 3. The
third sort of offense for which an officer or corporator may be
displaced is of a mixed nature, as being an offense not only
against the duty of his office, but also a matter indictable at
common law. For the first sort of offenses there must be a
previous conviction upon an indictment. When the offense is
merely against his duty as a corporator he can only be tried
for it by the corporation. "Whether under the English cases
there can be a removal for offenses of the third class before a
conviction in a court of justice is uncertain.2 Only acts of a
serious nature will justify removal under the incidental power
of a corporation.1
§276. Removal — Express authority, proceedings. — Unless
limited by positive provisions of law, the power of removal is
an incident of the power of appointment.4 The incumbent
holds during the pleasure of the appointive power, and subject
1 Rex v. Richardson, 1 Burr. 517, conviction, but otherwise there may
538. The English cases are reviewed be a removal without, or independ-
iu Richard v. Clarkburg, 30 W. Va. ent of, a conviction." Dillon, Mun.
49L In Ellison v. Raleigh, 89 N. G Corp., I, § 251, n.; Willcock, Mun.
125, the court said: "We have been Corp. 249; Kyd, Corp. 88-94.
unable to find any precedent for de- 8 Evans v. Philadelphia Club, 50
priving a member of his place by the Pa. St. 107. A summary of English
action of a municipal body of which cases will be found in Ang. & Ames,
he is a member for any pre-existing Corp., sec. 427.
impediment affecting his capacity * Newsome v. Cooke, 44 Miss. 352, 7
to hold the office." Am. Rep. 686; Williams v. Brewster,
2 "The cases decided are consid- 148 Mass. 256; People v. Robb, 126
ered to favor this view, viz.: If the N. Y. 180; .People v. Cain, 84 Mich,
act is criminal and single in its nat- 223; Trainer v. "Wayne County Au-
ure, so that a conviction or acquit- ditors, 87 Mich. 162, 15 L. R. A. 95,
tal in the courts of law will neces- annotated; State v. Kiichli, 53 Minn,
sarily determine the guilt or inno- 147, 54 N. W. Rep. 1069, 19 L. R. A.
cence of the party, there must be a 779.
214
MODE AND AGENCIES OF COKPOBATE ACTION.
[§ 276.
to removal at any time without notice or hearing.1 In such
cases the appointing power only can remove except for mal-
feasance by judicial decree.2 " The authorities are all to the
effect that a grant of power to remove either for cause or at
discretion carries with it the exclusive power to hear and de-
cide; and whereas the courts are entirely powerless where the
power is discretionary, they are equally so where it is for cause,
if the grantee of the power acts within its limits and upon no-
tice, if notice is required ; if the removal is for a cause desig-
nated by or following within the grant, the grantee or deposi-
tary of the removing power is the sole judge of the sufficiency
of the evidence to jr.stify the removal."3 But where the in-
cumbent holds office for a definite term, he can be removed
only for cause, after a hearing upon specific charges.4 The
legislature may authorize the removal of non-elective officers
at the will of the appointing power,5 but the holder of an elect-
ive office cannot be deprived of his right to the office without
due process of law, which requires notice and a hearing.6 But
1 People v. Mayor, 82 N. Y. 491;
State v. McGarry, 21 Wis. 496; State
v. McQuay, 12 Wash. 554, 14 Pac. Rep.
897. Where the statute fixes a term
longer than is permitted by the con-
stitution, the incumbent holds dur-
ing the pleasure of the appointing
power. Lewis v. Lewelling, 53 Kan.
510, 23 L. R A. 510.
2Carrv. State, 111 Ind. 1.
8 State v. Johnson, 30 Fla. 433, 18
L. R A. 414.
4Kennard v. Louisiana, 92 U. S.
480; Foster v. Kansas, 112 U. S. 201;
People v. Hayden, 113 N. Y. 198; Wil-
son v. Dullan, 53 Mich. 392. Where
by the charter of a city it is pro-
vided that elective officers shall not
be removed except for cause, the
courts will not presume that the leg-
islature intended that appointed offi-
cers might be removed without
cause. In the absence of express
words conferring upon the common
council the power to remove an offi-
cer without cause, it will be pre-
sumed that the legislature intended
that every officer appointed for a
fixed period should be entitled to
hold his office until the expiration
of such period unless removed there-
from for cause after a fair trial. Hall-
gren v. Campbell, 82 Mich. 255, 9 L.
R A. 408.
5Trainor v. Board of Auditors, 98
Mich. 162, 15 L. R A. 95; People v.
Witlock, 92 N. Y. 191.
e Denver v. Barrow, 13 Colo. 460, 16
Am. Rep. 215; Rex v. Richardson, 1
Burr. 540; People v. Brooklyn, 108
N. Y. 64. " When an officer is ap-
pointed during pleasure, or where
the power of removal is discretion-
ary, the power to remove may be
exercised without notice or hearing.
But where the appointment is dur-
ing good behavior, or where the re-
moval can only be for certain speci-
fied causes, the power of removal
cannot ... be exercised un-
less there be a formulated charge
against the officer, notice to him of
the accusation, and a hearing of the
evidence in support of the charge
and an opportunity given the party
of making defense." Dillon, Mun.
§ 276.]
GOVERNING BODIES, OFFICERS AND AGENTS.
245
notice is dispensed with by an appearance and answer to the
charge or by a total desertion of the place.1 Some courts hold
that the power to remove from office is judicial in its nature,1
while others hold that it is administrative,3 on the theory that
the office is conferred upon the incumbent as a public agent,
and that he has no property rights in the same. If it is of a
judicial nature the officer is entitled to a hearing upon specific
charges.4 The charge need not, however, be as specific as an
indictment;5 and while the rules governing judicial proceedings
should be observed, they may be liberally applied.6 The power
of the governor to remove municipal officers is derived from
the statute.7 The power to remove includes the power of tem-
porary suspension pending trial.8 In such case it is the duty
of the governor to notify the officer of the cause of suspension
and to give him an opportunity to be heard, and to reinstate
him if the evidence does not sustain the charge.9 When the
statute enumerates the causes for which an officer may be re-
moved, it impliedly excludes all others except such as are of a
similar nature.10 The . misconduct must be of such a character
Corp., I, § 250; Field v. Com., 32 Pa.
St. 478; Willard's Appeal, 4 R L 595.
iWillcock, Mun. Corp. 265; Dil-
lon, Mun. Corp., I, § 254. Where a
statute provides that a person may
be removed from office when in the
opinion of the appointing power
"he is incompetent to execute prop-
erly the duties of his office, or when
on charges and evidence they shall
be satisfied that he has been guilty
of official misconduct or habitual or
wilful neglect of duty,'' it is not nec-
essary to prefer charges or to notify
a pereon before removing him for in-
competency. Trainor v. Board of
Auditors, 87 Mich. 162, 15 L. R A. 95,
2 State v. Pritchard, 36 N. J. L. 101;
Dullan v. Wilson, 53 Mich. 392; State
v. Peterson, 50 Minn. 241.
'State v. Hawkins, 44 Ohio St. 98;
Donahue v. County of Wills, 100 III 94.
* People v. Steward, 74 Mich. 411,
16 Am. St. Rep. 6-14; Wood v. Var-
num, 83 Cal. 46.
* State v. Superior, 90 Wis. 612, 64
N. W. Rep. 304; People v. French,
102 N. Y. 583; People v. Therrein, 80
Mich. 187.
6 People v. McClave, 123 N. Y. 512,
35 N. E. Rep. 1047.
7 People v. Mirton, 19 Colo. 565, 24
L. R A. 201; Speed v. Detroit, 98
Mich. 360, 23 L. R A. 842; Mechem,
Pub. Off., § 447.
8 State v. Peterson, 50 Minn. 239;
Westberg v. Kansas City, 64 Mo. 493;
Shannon v. Portsmouth, 5-1 N. H.
183. But see State v. Jersey City, 25
N. J. L. 537. The suspension cannot
be indefinitely without pay. Greg-
ory v. New York, 113 N. Y. 416.
9 State v. Johnson, 30 Fla. 433, 18
L. R A. 410. The notice is not a ju-
dicial writ, nor need it be authenti-
cated by the great se iL Attorney-
General v. Jochim, 99 Mich. 358, 23
L. R A. 699.
1° Dullam v. Wilson, 53 Mich. 392, 51
Am. Rep. 128; Wellman v. Board, 84
Mich. 558, 47 N. W. Rep. 559; State
v. Jersey City, 25 N. J. L. 537; State
246 MODE AND AGENCIES OF CORPORATE ACTION. [§ 277.
as to affect the performance of the duties of the office.1 The
causes usually designated are wilful neglect of duty, incom-
petence, habitual drunkenness and corruption in office.2 The
misconduct which will justify removal must consist of acts and
conduct relating to the office from which the removal is sought.8
The office is vacated by a legal and authorized amotion. A
judge whose term of office is fixed by the constitution cannot
be deprived of his office by a statute which attempts to abolish
the judicial district to which he belongs.4
§ 277. Personal liability on contracts. — The courts are fre-
quently called upon to determine the individual liability of
municipal officers upon instruments signed by such officers with
their official designation added. If such instruments are made
with authority and intent to bind the municipality, the corpo-
ration is liable. But both the corporation and officer may be
liable on the same instrument. If, for example, the selectmen
of a town offer a reward for the arrest and conviction of a
criminal, and such public officers sign their names individually,
with the designation "Selectmen of Milton," they do not, by
adding their official designation, take away from their names
their ordinary significance as proper names, and make of their
collective signatures a composite unit. The promise being
otherwise in the usual and proper form for a personal undertak-
ing, they are personally liable.5 If it appears from the instru-
ment that the officer did not intend to assume personal liability,
he will not be rendered liable by the fact that the instrument
v. Gary, 21 Wis. 496. This will de- 58, 11 Am. Rep. 172. Receiving a
pend upon the intent of the legisla- bribe is "disorderly conduct "within
ture as gathered from the statute, the meaning of a provision confer-
People v. Higgins, 15 111. 110. ring upon the council authority to
1 Clapp v. Board of Police, 72 N. Y. expel a member for disorderly con-
415; Rogers v. Morrill, 55 Kan. 737, duct. State v. Jersey City, 25 N. J.
42 Pac. Rep. 555. L. 586. An expelled member of a
2 State v. Savage, 89 Ala. 1, 7 L. city council may be re-elected, and
R. A. 426. cannot thereafter be again expelled
8 Speed v. -Detroit, 98 Mich. 360, 22 for the same offense. State v. Jer-
ri. R. A. 842. A register of deeds may sey City, supra.
be removed for making a false cer- 4 State v. Friedley, 135 Ind. 119, 21
tificate as to the condition of the L. R. A. 634.
title, although the making of such 8 Brown v. Bradlee, 156 Mass. 28, 15
certificate is not part of the duties L. R. A. 509.
of his office. State v. Leach, 60 Me.
§ 278.] GOVERNING BODIES, OFFICERS AND AGENTS. 247
is invalid in so far as it purports to bind the corporation.1
But where the signers of the note made the promise " as trust-
ees of school district " they are not individually liable, the in-
tention to bind the school district being plain.2 If the promise
of a public agent is connected with a subject fairly within the
scope of his authority, it will be presumed to have been made
officially and in his public character, unless it clearly appears
that he intended to bind himself personally.1 For example, if
gravel is sold on the credit of the town upon the order of a sur-
veyor of highways who has authority to make the purchase, the
town and not the surveyor is responsible.4 But if an overseer
of the poor, in contracting for the support of a pauper, engages
that he will be responsible for the payment of the charges, and
credit is given on his personal promise, he is liable.5
§278. Liability in tort. — An officer charged with discre-
tionary power is not responsible in damages unless it be shown
that he has acted arbitrarily and in clear violation of law.6 It is
a general rule that an action for neglect of an official duty can
be maintained against ministerial officers only. " There are,
however, many cases of powers not discretionary, for the man-
ner of whose performance there can be no responsibility to in-
dividuals. The sheriff, for example, is under no responsibility
to individuals for any neglect of duty in respect to the execu-
tion of a convict, though in such a matter he is allowed no dis-
cretion. Plainly, it is not only because duties are discretionary
that officers are exempt from civil suits in respect to their per-
formance. No man can have any ground for private action
until some duty owing to him has been neglected. The rule of
official responsibility, then, may be stated thus: If the duty
imposed upon an officer is a duty to the public, a failure to per-
form it or an inadequate or erroneous performance is a public
injury and must be redressed, if at all, in some form of public
i Willitt v. Young, 82 Iowa, 292, 11 And see Hall v. Lauderdale, 46 N. Y.
L. R, A. 115. 70.
2Sanborn v. Neal, 4 Minn. 126, 77 *I\es v. Hulet, 12 Vt. 314; King v.
Am. Dec. 502; Lyon v. Adamson, 7 Butler, 15 Johns. (N. Y.) 28L
Iowa, 509. 6 Boutte v. Eraer, 43 La. Ann. 980,
s Parks v. Ross, 11 How. (U. S.) 15 L. R. A. 63. As to liability for ar-
rest without warrant, see note in
« Brown v. Rundlett, 15 N. H. 360. 8 L. R. A. 529.
24:8 MODE AND AGENCIES OF CORPORATE ACTION. [§ 279.
prosecution. But if, on the contrary, the duty is a duty to an
individual, then the neglect to perform it properly is an indi-
vidual wrong and may support an individual action for dam-
ages." l One who has actually exercised the functions of a
public officer is estopped to deny, for the purpose of escaping
liability, that he properly held the office. And so the rule re-
specting the disability of officers applies not only to those who
hold the office of right, but also to those who are officers de facto
only.2 Immunity from private suits depends not upon the grade
of the office but upon the nature of the duty. A policeman,
for example, is one of the lowest in grade of public officers, but
if by reason of his neglect of duty a breach of the peace results
and loss accrues to an individual the latter cannot hold him lia-
ble for his neglect. If a highway commissioner declines to lay
out a road which an individual desires, or discontinues one which
it is for his interest to have retained, there is a damage to the
individual, but no wrong to him. Damage alone does not con-
stitute a wrong.3 If the officer fails to regard sufficiently the
interests of individuals in his official action, it is a breach of
public duty of which the state alone can complain.4
§ 279. Liability of officers acting judiciary. — The rule that
judicial officers cannot be held personally liable for the im-
proper or erroneous performance of their duties when acting
within their jurisdiction 5 shields the members of an equalizing
board, or board of review of assessments, from liability for dam-
ages for corruptly and oppressively increasing the valuation of
certain property.6 The same rule protects inspectors of fruits
and meats acting in the interest of the public health ;7 assessors
on whom is imposed the duty of valuing property for the pur-
pose of a levy of taxes;8 officers empowered to lay out, alter
and discontinue highways;9 members of a town board in decid-
iCooley, Elements of Torts, 146; Smith's L. C. 1027; Jordan v. Han-
Moss v. Cummings, 44 Mich. 359. som, 49 N. H. 199, 6 Am. Rep. 508.
»Billingsley v. State, 14 Md. 369; esteele v- Dunham, 26 Wis. 393.
Trescott v. Moan, 50 Me. 347. 7 Fath v. Koeppel, 72 Wis. 289, 7
» Waterer v. Freeman, Hob. 266. Am. St. Rep. 867.
4 Sage v. Laurain, 19 Mich. 137. 8 Weaver v. Devendorf, 3 Den.
•Lange v. Benedict, 73 N. Y. 12; (N. Y.) 117; Cooley on Taxation, 551
Yates v. Lansing, 5 Johns. 282, 9 et seq.
Johns. 395, 6 Am. Dec. 290, annotated; 9 Sage v. Laurain, 19 Mich. 137.
Mostyn v. Fabrigas, Cowp. 161,
§ 280.] GOVERNING BODIES, OFFICERS AND AGENTS.
ing upon the allowance of claims,1 and all officers exercising
judicial powers, whatever they may be called. The members of
a board of street commissioners, in determining upon work and
adopting plans and specifications therefor, act as judicial officers
and are amenable to the public alone for errors, negligence or
misfeasance in the matters within their jurisdiction. But if,
after adopting the plans and specifications, they undertake to
carry them out practically and to do the work themselves, em-
ploying agents and servants, they are liable to third persons for
negligence or misfeasance, as they act in a ministerial capacity.2
The tendency is toward abolishing the distinction between the
liability of judges of superior and inferior courts. Thus, it is
held that a justice of the peace is protected from personal lia-
bility for judicial acts in excess of his jurisdiction if he acts in
good faith.1 So a constable is not liable for executing a writ
on a justice's judgment if the justice is not liable.4 A mayor
is not liable for an erroneous order maliciously made if the
making of such an order was within his jurisdiction.5
§ 280. Liability of recorder of deeds. — With regard to certain
offices the public is incidentally benefited by the performance
of duties to individuals, instead of individuals being benefited
by the performance of public duties. For example, the recorder
of deeds is a public officer; but in recording conveyances and
furnishing abstracts or notice from the record to those who
request them and tender the legal fees, he performs duties to
individuals only, the performance of which the state is not ex-
pected to enforce. The breach of the duty is a wrong to the
individual, and the right to private action follows as of course.6
By refusing to record a conveyance tendered to him for that
purpose with the proper fees, or if, having undertaken to re-
cord the instrument, he records it inaccurately, the recorder
i Wall v. Trumbull, 16 Mich. 228. Mich. 576. But see Bradley v. Fisher,
2 Robinson T. Rohr, 73 Wis. 436, 2 13 Wall. (U.S.) 335 ; Houldenv. Smith,
L, R A. 366. 3 Moore, P. C. C. 75; Grumon v. Ray-
» Austin v. Vrooman, 128 N. Y. 229, mond, 1 Conn. 40, 6 Am. Dec. 200.
14 L. R, A. 138, annotated; William- * Scott v. Fishbate, 117 N. C. 265, 30
son v. Lacy, 86 Me. 80, 25 L, R A. 506; L. R A. 696.
Thompson v. Jackson, 93 Iowa, 376, 'Thompson v. Jackson, 93 Iowa,
27 L. R A. 92, annotated; Bishop, 876, 27 L. R A. 92.
Non-Contract Law, § 783; Cooley, • Clark v. Miller, 54 N. Y. 528; Kirth
Torts, § 419; Brooks v. Morgan, 86 v. Howard, 24 Pick. 292.
250 MODE AND AGENCIES OF CORPORATE ACTION. [§ 280.
commits an actionable wrong. There is a conflict of authority
on the question as to who is entitled to maintain an action for
damages resulting from recording an instrument incorrectly.
As between the grantee in a deed incorrectly recorded and
another person claiming under a subsequent conveyance by the
same grantor which has been recorded while the first record
remained uncorrected, it has been held that the grantee in the
first deed is not to be prejudiced by the recorder's error.1 So
under a statute which made the deed operative as a record from
the time it was delivered by the grantee for the purpose, a
similar ruling was made.2 Probably, however, the cost of the
new record would be the measure of recovery> unless the erro-
neous record stands in the way of a sale by the grantee, or in
some such way works actual damage. If, however, the deed
were lost or destroyed, the grantee's title would incur a double
danger, and the question of remote and proximate cause would
be involved. But in many of the states by statute a purchaser
is bound to look no further than the record, and he must suffer
whose deed has been incorrectly recorded.3 A recorder may
be responsible for recording papers not entitled to record if he
is aware that the record is unauthorized and if it may cause a
legal injury.4 He is liable also if he gives an erroneous cer-
tificate which it is his duty to give and to a person having a
right to it, that being an official act. But if the giving of the
certificate is not an official act he is not liable.5 And whatever
liability is incurred in such a case is to the person for whom
the certificate is made and not to his grantee.6
iMerrick v. Wallace, 19 III 486. Fouche v. Swain, 80 Ala. 153; Oats
But see Ritchie v. Griffiths, 1 Wash. v. Walls, 28 Ark. 244; Myers v.
429, 12 L. R. A. 384 Spooner, 55 Cal. 262; Weese v. Bar-
2 Mimsv.Mims, 35 Ala. 23; Chandler ker, 7 Colo. 181; Hine v. Robbins, 8
v. Scott, 127 Ind. 226, 10 L, R. A. 375. Conn. 347; Shepherd v. Burkhalter,
3 Ramsey v. Riley, 13 Ohio, 157. 13 Ga. 447; Benson v. Green, 80 Ga.
<VanSchaickv. Sigel, 60 How. Pr. 230; Cook v. Hall, 6 111. 579; Wor-
122; Mallory v. Ferguson, 50 Kan. 685, cester Nat. Bank v. Cheeney, 87 111.
22 L. R. A. 99 and note. 602; Gilchrist v. Gough, 63 Ind. 588;
5 Mallory v. Ferguson, supra; Frost Miller v. Bradford, 12 Iowa, 19 ; Miller
v. Beekman, 1 Johns. Ch. 288. v. Ware, 31 Iowa, 524; Poplin v.
6 See Satterfield v. Malone, 35 Fed. Mundell, 27 Kan. 159; Payne v. Pavey,
Rep. 445, 1 L. R. A. 35. For rulings 29 La. Ann. 116; Lewis v. Koltz, 39
on this point under the statutes of La. Ann. 259; Handley v. Howe, 22
the respective states see the follow- Me. 562; Hill v. McNichol, 76 Me. 315;
ing cases: Mims v. Mims, 35 Ala. 23; Brydcn v. Campbell, 40 Md. 338; Gil-
§ 231.J GOVERNING BODIES, OFFICEKS AJSD AGENTS. 251
§ 281. Liability of sheriff. — A sheriff in serving a civil pro-
cess is charged with duties only to the parties to the proceeding.
He is liable to the plaintiff1 for refusal or neglect to serve pro-
cess, or want of diligence in such service, or for neglect or re-
fusal to return process,2 or for making a false return,3 or for
neglect to pay over moneys collected.4 If the officer has levied
upon property he must keep the property with reasonable care,
and his breach of this duty affords ground for an action on be-
half of each party to the writ.5 If the sheriff is directed to levy
upon goods of a person named, he must at his peril ascertain
who the real defendant is and make service upon him.6 In
deciding as to the identity of the real owner he is not exercis-
ing a judicial function, and is liable if on execution against one
person he by mistake seizes the goods of another. A sheriff is
generally responsible for the misfeasance or non-feasance of his
deputies. The deputy, however, is not such a private agent as
to make the sheriff responsible when the deputy is employed to
do something because of his office which the law does not re-
quire the sheriff officially to perform, as in serving a distress
warrant7 or selling the property on foreclosure of a chattel
mortgage.8 The law imposes no duty on a deputy as such.
For omissions to act, therefore, he is not responsible, not being
bound to act. For tortious acts of a deputy under color of the
officer's authority, not only the deputy, but the officer himself,
is liable. " Whenever the plaintiff must state the official char-
acter of the party sued, as one of the allegations on which the
defendant's liability depends, the principal only is responsible.
But where the corpus delicti is a thing of active wrong and a
trespasser se unless justified, then the hand that does or pro-
lespie v. Rogers, 146 Mass. 612; Sin- iHowe v. White, 49 CaL 658.
clair v. Slawson, 44 Mich. 127; Par- 2 state v. Schar, 50 Mo. 393.
rott v. Shaubhut, 5 Minn. 331 ; Terrell 3 State v. Finn, 87 Mo. 310.
v. Andrew Co., 44 Mo. 309; Converse 4 Norton v. Nye, 56 Me. 211; Nash
v. Porter, 45 N. H. 399; Musser v. v. Muldoon, 16 Nev. 404.
Hyde, 2 W. & S. 314; Shelle v. Bry- * Abbott v. Kimball, 19 Vt. 551, 47
den, 114 Pa. St. 147; Throckmorton v. Am. Dec. 70&
Price, 28 Tex. 609: Sawyer v.Adams, 6 Screws v. Watson, 48 Ala. 628.
8 Vt. 172; Bigelow v. Topliff, 25 Vt. See, also, Thomas v. Markman, 43
282; Shove v. Larsen, 22 Wis. 142; Neb. 843, 62 N. W. Rep. 206.
Lombard v. Culbertson, 59 Wis. 433. 7 Moulton v. Moulton. 5 Barb. 286.
See Ritchie v. Griffith, 1 Wash. 429, 8 Door v. Mickley, 16 Minn. 20
12 L. R. A. 384, and note. 'Gil. 8>
252 MODE AND AGENCIES OF COEPOEATE ACTION. [§ 282.
cures the act is liable." l But in cases where deputy-sheriffs
are appointed by the sheriff subject to the approval of the
judge of the circuit court, his power of appointment comes from
the state and his authority is derived from the law.8
§ 282. Highway officers. — If a ministerial officer has the
funds at his command with which to discharge the duty in-
cumbent upon him, he is responsible to parties injured by his
neglect. But he cannot be in fault unless the funds are pro-
vided for the purpose, or unless by virtue of his office he may
raise the necessary means by levying a tax or in some other
mode. Thus, commissioners having charge of the cutting and
keeping open of pr.blic drains will be 'liable, after the drains
are once cut, if they suffer them to become obstructed to the
injury of neighboring lands when they have the means at their
command to keep them open.3 The decisions are conflicting
as to the liability to individuals of an officer who has charge
of the duty of making and repairing highways and public
bridges. In an early JSTew York case, where an individual, in-
jured in consequence of a bridge being out of repair, had
brought suit against the overseer of highways, it was held that
the overseer's duty was owing to the public and not to individ-
uals.4 This decision has been followed in several states,5 but
by later decisions in New York highway commissioners are
held responsible to individuals for failure to keep the public
ways in repair so far as they have the means of doing so.
" Defective bridges are dangerous," said the court in an im-
portant case, " and travelers generally have no means of know-
ing whether they are safe or not. They have to rely upon the
fidelity and vigilance of the highway officers, who are the only
persons whose duty it is to see that the bridges are in repair."6
A similar liability exists in other states by statute.7
1 Coltraine v. McCaine, 3 Dev. Law 6 See Dunlap v. Knapp, 14 Ohio St.
(N. C.), 308, 24 Am. Dec. 256. 64; McConnell v. Dewey, 5 Neb. 385;
2 State v. Bus, 125 Mo. 335, 33 L. R Lynn v. Adams, 2 Ind. 143.
A. 616. 6 Hover v. Barkhoof, 44 N. Y. 113,
3 Child v. Boston, 4 Allen, 41, 81 125.
Am. Dec. 680. 7 See Hathaway v. Hinton, 1 Jones
<Bartlett v. Crozier, 17 Johns. 449, (N. G), 243; County Com'rs v. Gib-
8 Am. Dec. 428. son, 36 Md. 229.
§§ 283, 284.] GOVERNING BODIES, OFFICERS AND AGENTS. 253
§ 283. LiaWity of various officers. — The members of a board
of health are personally liable for damages occasioned by the
negligent manner of removing one afflicted with a contagious
disease, without proof of malice or gross negligence.1 A super-
visor is personally liable for damages resulting from his neg-
lect to report a claim to a county board after allowance.2 A
clerk of court is liable for damages occasioned by his neglect
to put a case on the docket,3 and for approving an appeal bond
with a penalty less than that required by law,4 or for failing
to enter a judgment properly.5 The purchasers of meat who
rely upon the inspection of a public inspector may maintain
an action against the inspector for damages caused by the neg-
lect of his duty.6
§ 284. Liability for loss of public funds. — In some states
an officer is regarded as the debtor of the corporation and not
as a bailee or trustee of funds intrusted to his care, and is liable
for such funds, without reference to the cause of their loss.
This is the rule of liability in those states where the officer has
the right to use the money as his own and to retain any inter-
est or profit that the funds may earn. It has no application
where the officer is considered as a trustee charged with cer-
tain duties and responsibilities and where he is held to have
no right to the income of the funds. In some states it is made
a felony for the officer to use the public funds directly or indi-
rectly, or to receive or to agree to receive interest for their
use or deposit.7 In other cases the officer is held liable on
broad grounds of public policy, and the obligations resting
upon him are made absolute and unconditional because a dif-
ferent construction would open up the door for fraudulent
practices and evasions by public officials. Many of the cases
holding officials liable for public funds, lost without their fault
or negligence, are decided under local statutes, but a number
1 In Aaron v. Broils, 64 Tex. 316, 53 tected tent, whereby they were so
Am. St. Rep. 764, it was held that exposed that death ensued,
while the board of health, mayor * Clark v. Miller, 54 N. Y. 528.
and marshal of a city might remove 8 Brown v. Lester, 21 Miss. 392.
from the city persons afflicted with 4 Billings v. Lafferty, 31 IlL 318.
small-pox, they were liable for negli- 5 Douglass v. Yallup, Burr. 722.
gence in doing so, and for removing 6 Hayes v. Porter, 22 Me. 371.
them in stormy weather and put- ' State v. Copeland, 96 Tenn. 296,
ting them in an unsafe and unpro- 31 L. R. A. 844.
254 MODE AND AGENCIES OF CORPORATE ACTION. [§ 284.
of them rest squarely on principles of public policy. " It shocks
the sense of justice," said the court in a recent case,1 " that the
public officials should be held to any greater liability than the
old rule of the common law which exacted proof of miscon-
duct or neglect. It is at this point, however, that the ques-
tion of public policy presents itself, and it may well be asked
whether it is not wiser to subject a custodian of the public
moneys to the strictest liability rather than open the door for
the perpetration of frauds in numberless ways impossible of
detection, thereby placing in jeopardy the enormous amount
of the public funds constantly passing through the hands of
disbursing agents." Hence the court in this case held that a
supervisor who acted in good faith and without negligence
was liable for public moneys lost by the failure of a firm of
private bankers with whom the money had been deposited.
In other cases the liability of the officer is made to turn upon
the terms of his bond, and is construed as having been enlarged
by the bond and made an absolute engagement to pay over
the money in any event and under every contingency. This
rule has been adopted in many cases on the authority of an
important decision of the supreme court of the United States,
where it was held that an officer under bond to "keep safely"
must make good the public funds stolen from him without his
fault.2 This stringent rule was modified, however, in a later
decision of that tribunal, where it was held that an officer was
excused by the act of God or the public enemy.1
1 Tillinghast v. Merrill, 151 N. Y. from the office or house of the offi
135, 34 L. R. A. 678. cial, in some cases where it had been
2 United States v. Prescott, 44 U. S. placed in a private safe, and iu
589. To the same effect are United others where it had been taken from
States v. Dashiel, 71 U. S. 182; United a safe furnished by the county. The
States v. Morgan, 52 U. S. 154; Boy- same rule has been adopted in other
den v. United States, 80 U. S. 17; instances where the money had been
State v. Nevin, 19 Nev. 162; State v. lost through the failure of a bank
Lanier, 31 La. Ann. 423; Jefferson Co. in which it had been deposited.
Com'rs v. Lineberger, 3 Mont. 231, 35 State v. Moore, 74 Mo. 413, 41 Am.
Am. Rep. 562; Redwood Co. Com'rs Rep. 322; State v. Powle, 67 Mo. 395,
v. Tower, 28 Minn. 45; State v. Blair, 29 Am. Rep. 512; Ward v. Colfax Co.,
76 N. C. 78; Hancock v. Hazzard, 12 10 Neb. 293, 35 Am. Rep. 477; Lowry
Cush. 112, 59 Am. Dec, 171; State v. v. Polk Co., 51 Iowa, 50, 33 Am. Rep.
Harper, 6 Ohio St. 607, 67 Am. Dec. 113; State v. Croft, 24 Ark. 560;
363. These are principally cases Havens v. Lathene, 75 N. C. 505,
where the monpy had been stolen 3 United States v. Thomas, 82 U. S.
§ 285.] GOYEBNDsG BODIES, OFFICEKS AXD AGENTS.
255
The tendency of the authorities is to revert to the common-
law rule of liability and to hold the officer intrusted with pub-
lic funds, not an insurer against loss, but "liable only if he acts
without proper diligence, caution, prudence and good faith."
" We believe," said the court in one case,1 " the true rule is that
a public officer who receives money by virtue of his office is a
bailee and that the extent of his obligation is that imposed by
law; that when unaffected by constitutional or legislative pro-
visions his duty and liability is measured by the law of bail-
ment. If a more stringent obligation is desired, it must be pre-
scribed by statute; that his official bond does not extend to
such obligation, but its office is to secure the faithful and
prompt performance of his legal duties."
§ 285. Manner of trying title to office. — The title to an office
cannot be determined in a collateral proceeding, although suffi-
cient inquiry may be made to determine whether the occupant
is a mere intruder.2 If one in possession of an office seeks to
have a court review the proceeding of a board of aldermen
which interferes with his enjoyment of the office, the proper
337. Mr. Justice Bradley, delivering
the opinion in this case and treating
of the contention that the bond
forms the basis of a new rule of re-
sponsibility, called attention to the
distinction between an absolute
agreement to do a thing and a condi-
tion to do the same thing inserted in
the bond, and said: "The condition
of an official bond is collateral to the
obligation or penalty; it is not based
on a prior debt nor is it evidence of
a debt, and the duty secured thereby
does not become a debt until default
is made on the part of the principal.
Until then, as we have seen, he is
a bailee, though a bailee resting
under special obligations. The con-
dition of his bond is not to pay a
debt but to perform a duty about
and respecting certain and specific
property which is not his and which
he cannot use for his own purposes."
1See Wilson v. People, Pueblo &
A. V. R Co., 19 Cola 199, 22 L. R A.
449. See cases cited where, by the
constitution and the statutes, the
common-law liability of certain offi-
cers was increased. State v. Walsen,
17 Cola 170; McClure v. La Platte
Com'rs, 19 Cola 122. In York County
v. Watson, 15 & G 1, 40 Am. Rep.
675, a county treasurer was held not
responsible for public moneys de-
posited in a bank which had borne
a good reputation. The court said
that the public officer was no more
responsible than a private trustee
would be nnder like circumstances.
In Cumberland County v. Pennell,
69 Me. 357, 31 Am. Rep. 284, a county
treasurer was held not liable for
money taken from his safe in his
office by robbe rs> who had first beaten
him. See, also, Strout v. Pennell, 74
Me, 262; State v. Houston, 78 Ala,
576, 56 Am. Rep. 59; State v. Cope-
land, 96 Tenn. 296, 31 L. R A. 844
2 United States v. Alexander, 46
Fed. Rep. 728.
256
MODE AND AGENCIES OF CORPORATE ACTION.
[§ 285.
remedy is certiorari. "When the title of one in possession is to
be tried, the proper remedy is quo warranto and not mandamus^
The title to an office cannot be tried in an action of replevin
for property belonging to the office. As a general rule the ap-
propriate remedy for the particular case is provided by statute.2
1 Denver v. Darrow, 13 Colo. 460, 16
Am. St. Rep. 215, and note. The writ
of mandamus being a prerogative
writ and not a writ of right may be
granted or not, in the discretion of
the court. Reg. v. Churchwardens,
1 App. Gas. 611, 35 L. T. 381. That
quo warranto is the appropriate rem-
edy to settle title to office conclu-
sively, see Rex v. Mayor of Col-
chester, 2 T. R. 259, 7 Eng. Rul. Gas.
328; Leeds v. Atlantic City, 52 N. J.
L. 333; Matter of Gardner, 68 N. Y.
467; Duane v. McDonald, 41 Conn.
517; St. Louis Co. Court v. Sparks,
10 Mo. 117, 45 Am. Dec. 355; Bonner
v. State, 7 Ga. 473; People v. Kil-
duff, 15 111. 492; Frey v. Michie, 68
Mich. 323; State v. Choate, 11 Ohio,
511; State v. De Gress, 53 Tex. 387;
Com. v. Meeser, 44 Pa. St. 341; State
T. Dunn, Minor, 46, 12 Am. Dec. 25;
State v. Gates, 86 Wis. 634, 39 Am. St.
Rep. 912; Brown v. Turner, 70 N. C.
93. In some states mandamus is used
for this purpose. See Luce v. Board
of Examiners, 153 Mass. 108; Dew v.
Judges, 3 Hen. & Munf. 1, 3 Am.
Dec. 639; Harwood v. Marshall, 9
Md. 83; Lawrence v. Ingersoll, 88
Tenn. 52, 17 Am. St. Rep. 870; Bos-
ton v. Wilson, 4 Tex. 400. " Quo ivar-
ranto lies to oust an illegal incum-
bent from an office, not to induct
the legal officer into it." State v.
Sone, 16 R L 620. The validity of
the acts of an officer de facto can be
questioned only by a direct proceed-
ing in quo warranto to determine
title to his office. Walcott v. Wells,
21 Nev. 47, 87 Am. St. Rep. 478.
*Hallgren v. Campbell, 82 Mich.
255, 9 L. R. A. 403.
BOOK IV.
THE LIABILITIES OF PUBLIC CORPORATIONS.
CHAPTEE XT.
LIABILITY ON CONTRACTS.
286. General liability.
287. Presentation and demand.
288. The doctrine of ultra vires.
289. Estoppel — Contract executed
by one party.
290. Contract within scope of gen-
eral powers.
§ 291. Contract in part ultra vires.
292. Liability on implied contract.
293. Illustrations.
294. Eight to recover back illegal
taxes.
295. Payment must be compulsory.
296. Voluntary payment.
§ 286. General liability. — A public corporation is liable upon
a contract which is within the scope of its chartered powers
when duly made by the proper officers in the same manner
and to the same extent as a private corporation or a natural
person. It may be sued like any individual, and may resort to
the courts to enforce its rights and redress its wrongs.1
§ 287. Presentation and demand. — Municipal charters ordi-
narily contain a provision that no action shall be commenced
on any " claim " or " claim or demand " until the same shall
have been presented for allowance to the city council.2 Sim-
ilar provisions often limit the time within which an action may
be brought against the corporation.8 While the words " claim "
and " demand " have a very wide significance, they are not con-
strued as including claims arising out of torts.4 At common
law it is not necessary to present a claim arising on tort before
bringing suit.5 If the council neglects to act upon a demand
1 Buffalo v. Bettinger, 76 N. Y. 393. 4 Nance v. Falls City, 16 Neb. 85;
»Kelley v. Madison, 43 Wis. 638. Flieth v. Wausau, 93 Wis. 448.
•McGaffin v. Cohoes, 74 N. Y. 387. * Green v. Spencer, 07 Iowa, 410.
17
258
LIABILITIES OF PUBLIC CORPORATIONS.
[§ 288.
within the sixty days fixed by the charter, it is equivalent to a
refusal to allow it.1
§ 288. The doctrine of ultra vires. — A public corporation de-
rives all its powers from its charter, and the general rule is that
it cannot bind itself by any contract in excess of the powers
thus conferred upon it.2 Hence it necessarily follows that ultra
vires contracts are not enforceable.8 This doctrine has with
good reason been applied with greater strictness to municipal
bodies than to private corporations, and in general a munici-
pality is not estopped from denying the validity of a contract
made by its officers when there was no authority for the mak-
ing of such contract.4 The harshness of the rule has in prac-
tice led to the adoption of certain modifications which seem
1 Fleming v. Appleton, 55 Wis. 90.
2 City of Eufaula v. McNab, 67 Ala.
588; Swift v. Falmouth, 167 Mass. 115,
45 N. E. Rep. 184; Alleghaney Co. v.
Parrish, 93 Va. 615, 25 S. E. Rep. 882,
Much of the apparent confusion in
the law of ultra vires is due to the
use of the words in different senses.
It is used to characterize (1) an act
of the directors or officers in excess
of their authority as agents of the
corporation; (2) an act of the major-
ity of the stockholders in violation of
the rights of the minority; (3) an
act done in disregard of the re-
quirements of the charter; (4) an act
which the corporation has not the
power to do, as being in excess of the
corporate powers. In a recent work
it is said: "For a time, whenever an
element of uncertainty in the views
expressed by the courts as to whether
or not the doctrine should be applied
only to the acts of a corporation as
such, or whether it should not also
be applied to acts of the directors or
officers which were in excess of the
authority given them in the manage-
ment of the internal affairs of the
corporation. In the former sense
only is the doctrine legitimately ap-
plicable." Reece, Ultra Vires, § 17.
In Camden, etc. R. Co. v. May's Land-
ing, etc. Co., 48 N. J. L. 530, the court
said: "In its legitimate use, the ex-
pression ultra vires should be applied
only to such acts as are beyond the
powers of the corporation itself."
See dissenting opinion. In Chicago,
etc. R. Co. v. Union Pac, R. Co., 47
Fed. Rep. 15, Mr. Justice Brewer said:
"Two propositions are settled. Oue
is that a contract by which a corpo-
ration disables itself from perform-
ing the functions and duties under-
taken and imposed by its charter
is, unless the state which creates it
consents, ultra vires. . . . The
other is that the powers of a cor-
poration are such, and such only, as
its charter confers; and an act be-
yond the measure of those powers as
either expressly stated or fairly im-
plied is ultra vires. . . . These
two propositions embrace the whole
doctrine of ultra vires. They are its
alpha and omega."
3 Cooley, Const Lim., p. 261 ; Dillon,
Mun. Corp., I, g 457.
<Newberry v. Fox, 37 Minn. 141, 51
Am. St. Rep. 830; Sutro v. Pettit, 74
Cal. 332, 5 Am. St. Rep. 442 ; Thomp-
son, Corp., V, § 5969. For a strict ap-
plication of the rule see M;i}ror of
Nashville v. Sutherland, 92Tenn. 335,
19 L. R. A. 619.
§ 239.] LIABILITY ON CONTRACTS. 259
necessary in order to do justice between the parties. It has
thus been materially modified by the application of the doc-
trines of estoppel and implied contract.
§ 289. Estoppel— Contract executed by one party. — The gen-
eral rule is that there can be no estoppel when the contract is
illegal in the sense of being forbidden by law, or where there is
a total want of power on the part of the corporation.1 But
where an act is in its external aspects within the general powers
of a corporation, but is unauthorized because it is done with a
secret unauthorized intent, the defense of ultra vires will not
avail against a stranger who in good faith dealt with the cor-
poration without notice of such intent.2 Although there is some
conflict of authorities, the logical rule would seem to be that,
when the corporation is estopped to assert the defense of ultra
vires, the liability thus enforced is on the contract.8 Thus, it
was said that " although there might be a defect of power in a
corporation to make contracts, yet if a contract made by it is
not in violation of its charter or of any statute prohibiting it,
and the corporation has by its promise induced the party rely-
ing on the promise and in execution of the promise to expend
money and perform his part thereof, the corporation is liable
on the contract. " 4 A party who is sued on a contract with the
city may defend on the ground that the city had no power to
make the contract.5 There can be no recovery upon a contract
1 In King v. Mabaska Co., 75 Iowa, 4 State Board of Agriculture v.
329, it was held that a contractor for Citizens' St. Ry. Co., 47 Ind. 407, 17
the building of a court-house could Am. Rep. 703. This language is
not recover for extra work where it quoted with approval by Mr. Justice
created a cost in excess of the amount Strong in Hitchcock v. Galveston, 96
which the people had voted for the U. S. 351, in Columbus "Water Works
law. In Goose River Bank v. Willow v. Mayor of Columbus, 48 Kan. 99, 15
Lake School Township, 1 N. Dak. 26, L. R. A. 354, and in Illinois Tr. & Sav.
it was held that a school teacher who Bank v. Arkansas City, 76 Fed. Rep.
lacked the necessary legal qualifica- 271, 40 U. S. App. 257, 34 L. R. A. 518.
tions could not recover for services In Boss Machine Works v. Park Co.
rendered. Com'rs, 115 Ind. 234, the court said:
2 Dillon, Mun. Corp., I, § 936. " The doctrine of ultra vires does not
3 It is uncertain whether there is an absolve municipal corporations from
action on the contract. See Dillon, the principle of common honesty."
Mun. Corp., I, §444, note,and the cases 5 Montgomery City Council v.
cited in the next note; Thompson, Montgomery, etc. Ry. Co., 31 Ala. 76.
Corp., V, g 5968; Central Tp. Co. v.
Pullman Palace Car Co., 139 U. S. 23.
260 LIABILITIES OF PUBLIC COEPOKATIOtfS. [§ 290.
which is illegal in the sense of being absolutely prohibited by
law.1
§ 290. Contracts within scope of general powers. — Cities
often enter into contracts which are within the scope of their
general powers, but which are made in an irregular manner, or
contain ultra vires conditions or provisions. A mere irregular-
ity in the exercise of power cannot be asserted as a defense
against one who has in good faith parted with value for the
benefit of the corporation.2 In a well known case8 it appeared
that the city had entered into a contract with certain contract-
ors, by the terms of which they were to pave its streets and
receive the negotiable bonds of the city in payment therefor.
The city had power to pave the streets but not to issue the
bonds. In an action for damages for a breach of the contract
the court said : " The present is not a case in which the issue
of the bonds was prohibited by any statute. At most, the
issue was unauthorized. At most, there was a defect of power.
The promise to give bonds to the plaintiffs in payment of what
they undertook to do was therefore, at furthest, only ultra vires;
and in such a case, though specific performance of an engage-
ment to do a thing transgressive of its corporate power may
not be enforced, the corporation can be held liable on its con-
tract. Having received benefit at the expense of the other
contracting party, it cannot object that it was not empowered
to perform what it promised in return in the mode in which it
promised to perform." Elsewhere the court said: "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 sidewalk ; that such
a contract was made with them; that under it they have pro-
ceeded to furnish materials and do work as well as to assume
1 McDonald v. New York, 88 N. Y. ers, but ultra vires because of some
23, 23 Am. Rep. 144; Argenti v. San particular circumstance, is fully ex-
Francisco, 16 Cal. 256. plained by Chief Justice Sawyer in
» Moore v. New York, 73 N. Y. 238. Miner's Ditch Co. v. Zellerbach, 37
The distinction between cases where Cal. 543, 99 Am. Dec. 300. See, also,
the contract is entirely outside of Northwestern Union Packet Co. v.
the granted powers and cases where Shaw, 37 Wis. 655, 19 Am. Rep. 781.
the particular contract is within the 3 Hitchcock v. Galveston, 96 U. S.
general scope of the corporate pow- 341.
§ 291.] LIABILITY ON CONTRACTS. 261
liability ; that the city has received and now enjoys the benefit
of what they have done and furnished ; 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.
If payments cannot be made in bonds because their issue is
ultra vires, it would be sanctioning rank injustice to hold that
payment need not be made at all. Such is not the law. The
contract between the parties is in force so far as it is lawful."
§ 291. Contract in part ultra vires. — An entire contract is
not necessarily invalid because a part thereof is ultra vires.
It is said that a court should not destroy a contract made by
parties further than some good reason requires.1 Thus, where
a city had power to provide for gas, and entered into a con-
tract with a corporation to furnish it for the city, and as a
part of the contract granted to the corporation the exclusive
right to use the streets, it was held that the granting of the
exclusive franchise was beyond the power of the city. But
the court said : 2 " No reason occurs to us why, under this state
of facts, the gas company or its successors may not waive the
exclusive right and recover the remainder of the consideration
which the city promised to pay. The grant of this exclusive
right was neither immoral nor illegal. It was merely ultra vires.
We know of no rule of law nor of morals which relieves the
recipient of the substantial benefits of a partially-executed
contract from the obligation to perform or pay that part of
the consideration which he can perform or pay because the per-
formance of an insignificant portion of it is beyond his power.
On the other hand, the true rule is and ought to be the converse
of that proposition. It is that when a part of a divisible con-
tract is ultra vires, but neither malum in se nor malum pro-
hibitum, the remainder may be enforced, unless it appears
from a consideration of the whole contract that it would not
have been made independently of the part which was void." a
iln East St Louis v. East St. the lights actually furnished. See
Louis Gas Co., 98 111. 415, it appeared the statement of the rule in Brown
that the city had entered into a con- v. Atchison, 39 Kan. 54.
tract to furnish lights for a number 2 Illinois Trust & Sav. Bank v. Ar-
of years. This contract was held be- kansas City, 76 Fed. Rep. 271, 40 U. S,
yond its powers, but the court held App. 257, 34 L. R. A. 518 (Sanborn, J.).
that there could be a recovery for 3 Oregon St. Nav. Co. v. "Winsor,
262 LIABILITIES OF PUBLIC CORPORATIONS. [§ 292.
§ 292. Liability on implied contract. — The strict doctrine of
ultra vires is further modified by the rule that when a contract
has been performed by one party and money or property has
thus come into the possession of the corporation and been ap-
plied to its use, the law presumes a contract to restore such
property to the rightful owner.1 This implication is based on
the theory that " the obligation to do justice rests upon all
persons, natural and artificial; and if the county obtains the
money or property of others without authority, the law, inde-
pendent of any statute, will compel restitution or compensa-
tion." In one of the leading cases 2 Chief Justice Field said :
" The doctrine of implied municipal obligation applies to cases
where money or other property of the party is received under
such circumstances that the general law, independent of express
contract, imposes the obligation upon the city to do justice with
respect to the same. If the city obtains money of another by
mistake or without authority of law it is its duty to refund it,
not from any contract entered into by it on the subject, but
from the general obligation to do justice which binds all per-
sons, natural or artificial. If the city obtains other property
which does not belong to her, it is her duty to restore it; or
if used by her, to render an equivalent to the true owner from
the like general obligation; the law, which always intends jus-
tice, implies a promise. In reference to money or other prop-
erty it is not difficult to determine, in any particular case,
whether liability in respect to the same has attached to the
the city. The money must have gone into the treasury or
have been appropriated by her; and when it is property other
than money, it must have been used by her or under her con-
trol. But with reference to services rendered the case is differ-
ent. There, acceptance must be evidenced by ordinance s to that
effect. If not originally authorized, no liability can attach
upon any ground of implied contract. The acceptance upon
20 Wall. (U. S.) 64; Regan v. Farm- U. S. 294; Chapman v. Douglass Co.,
era' Loan & Trust Co., 154 U. S. 362; 107 U. S. 355; Schipper v. Aurora, 121
Western Union T. Co. v. Burlington, Ind. 154, 6 L R. A. 318; Pittsburgh,
etc. R. Co., 11 Fed. Rep. 1, and note; etc. Ry. Co. v. Keokuk, etc. Co., 131
Saginaw G. L. Co. v. Saginaw, 28 U. S. 871.
Fed. Rep. 529. 2 Argenti v. San Francisco, 16 CaL
i Marsh v. Fulton Co., 10 Wall 255.
(U. S.) 376; Louisiana v. Wood, 103 ' Or other appropriate aot
§ 293.] LIABILITY ON COXTBACTS. 263
which alone the obligation to pay could arise would be want-
ing." An ultra vires contract does not become lawful by being
executed ; but while the courts will not disturb such a contract
so far as executed, it may be disaffirmed by either party upon
making restitution of what has been received under it. If the
party so disaffirming fails to make restitution, the other party
may recover the property or its value in an action upon an im-
plied contract.1
§293. Illustrations. — "When a municipal corporation sells
property and gives a deed which passes no title and receives
the person's money and appropriates it to its own use, the pur-
chaser may recover back the purchase-money.2 When a city
has authority to borrow money and places in the hands of a
broker bonds apparently valid, but which are in fact invalid,
and the bonds are sold and proceeds received by the city, the
transaction is the borrowing of money, and the purchaser of the
bonds may disregard them and sue the city for money had and
received.* As the bonds are wholly void they need not be ten-
dered back.4 So, where a city without authority exchanges its
bonds for the bonds of a railroad company, it is not liable on
the bonds ; but if value has been received by the city it can be
recovered in an action for money had and received.5 Where
a county was authorized to purchase lands, but not to give notes
secured by mortgage for the purchase price, it was held that
the county held the title to the land as trustee for the vendor,
and that unless the sum due was paid within a reasonable time,
having reference to the necessity for raising the money by tax-
ation, the county would be compelled to reconvey the land.8
The person who furnishes necessaries to a pauper whom the
municipality is under legal obligation to support can recover for
the same from the municipality.7 So a city is liable for the value
1 Marble Co. v. Harvey, 92 Tenn. Nat. Bank v. South Hadley, 128 Mass.
115; Central Trans. Co. v. Pullman 50a
P. C. Co., 139 U. S. 60. s Louisiana v. Wood, 102 U. S. 294>
2 Pimental v. San Francisco, 21 CaL 5 Dillon, G C. 122.
352. In Massachusetts one who loans * Paul v. Kenosha, 22 "Wis, 266.
money to a town in a way not au- 5 Thomas v. Port Hudson, 27 Mich,
thorized by statute cannot recover 320.
it back, although the town used the 6 Chapman v. Douglass Co., 107 U. S.
money to pay its debts. Agawam 349.
7Sea°;raves v. Alton, 13 111. 366.
264: LIABILITIES OF PUBLIC COKPOEATIONS. [§§ 294, 295.
of the property of an individual which it uses in the care of the
indigent.1
§ 294. Right to recover 'bade illegal taxes. — A number of states
have statutes which authorize the recovery of money paid for
illegal taxes.2 In the absence of such statutory provisions,
cities, villages, counties and towns for which a tax has been
collected may, under certain circumstances, be liable in an ac-
tion by the party from whom the tax has been collected. Such
actions are usually brought in assumpsit for money had and re-
ceived.* In the absence of statutory authority such an action
can only be maintained when the following conditions are found
to concur:
1. The tax must have been illegal and void, and not merely
irregular.
2. It must have been paid under compulsion or the legal
equivalent.
3. It must have been paid over by the collecting officer and
have been received to the use of the municipality.4
And to these, says Judge Cooley,5 should perhaps be added :
4. The party must not have elected to proceed in any rem-
edy he may have had against the assessor or collector.6
§ 295. Payment must ~be compulsory. — The assessment must
not only be void, and the corporation actually receive the
money, but the payment must also be compulsory. That is, it
1 Nashville v. Toney, 10 Lea (Tenn.), Chief Justice Shaw in Lincoln v.
643. In Gas Co. v. San Francisco, 9 Worcester, 8 Gush. (Mass.) 55.
Cal. 453, the city was held liable for 6 Ware v. Percival, 61 Me. 391.
gas furnished with the knowledge of A demand is not necessary before
the council, although no ordinance bringing suit to recover back illegal
or resolution had been passed au- taxes unless made so by statute,
thorizing it to be furnished. A city Look v. Industry, 51 Me. 375. Inter-
is liable on quantum meruit, in the est is recoverable from the date of
absence of a statute to the contrary, demand, but not before. Boston &
in the same manner as an individual Co. v. Boston, 4 Met. (Mass.) 181. If
Peterson v, Mayor, 17 N. Y. 449. only a part of the tax was illegal the
2S je Cooley, Taxation, 804. recovery will be limited to that part,
'Grand Rapids v. Blakely, 40 Mich, if capable of being distinguished.
367. Torrey v. Millbury, 21 Pick. (Masa>
* First Nat. Bank v. Americus, 68 64. The burden of showing illegali-
Ga. 119. ties is on the party who counts upon
6 Cooley, Taxation, p. 805; Dillon, them. Douglasville v. Johns, 62 Ga.
Mun. Corp., I, § 940. See opinion of 423.
§ 296.] LIABILITY ON CONTRACTS. 265
must be made upon direct and immediate compulsion and
under such circumstances that the party can save himself and
his property only by paying the illegal demand.1 As stated
by Judge Dillon,2 the coercion must consist of some " actual or
threatened exercise of power possessed or believed to be pos-
sessed by the party exacting or receiving the payment over
the person or property of another, from which the latter has
no other means or reasonable means of immediate relief except
by making payment."
§ 296. Voluntary payment. — A voluntary payment made
with a full knowledge of all the facts and circumstances of the
case, although made under a mistaken view of the law, cannot
be recovered back. As stated by the supreme court of the
United States:3 "Where a party pays an illegal demand with
a full knowledge of all the facts which render such demand
illegal without an immediate and urgent necessity therefor, or
unless to release his person or property from detention, or to
prevent an immediate seizure of his person or property, such
payment must be deemed to be voluntary and cannot be recov-
ered back. And the fact that the party at the time of making
the payment filed a written protest does not make the payment
involuntary."4 A payment to avoid a sale under an unconsti-
tutional statute is voluntary.5 But some overt act is necessary,
and the mere issuing of tax warrants or a threat to collect the
tax is not compulsion.6 It is not necessary, however, for the tax-
1 Union Pac. Ry. Co. v. Dodge Co., St. Croix Co., 46 Wis. 210; Babcock v.
98 U. S. 541; Preston v. Boston, 12 Fond du Lac, 58 Wis. 231; Goddard
Pick. (Mass.) 7; Briggs v. Lewiston, v. Seymour, 30 Conn. 349. Protest
29 Me. 472; Grim v. School District, alone cannot change a voluntary in to
57 Pa. St. 433. an involuntary payment. Sonoma
2 Dillon, Mun. Corp., H, § 944. Co. Tax Case, 13 Fed. Rep. 789: Merrill
8 Union Pac. Ry. Co. v. Dodge Co., v. Austin, 53 Cal. 379.
98 U. S. 541: Lamborn v. Dickinson 5 Detroit v. Martin, 34 Mich, 170;
Co., 97 U. S. 181; Duunell Mfg. Co. Phelps v. Mayor of New York, 112
v. New-ell, 15 R. L 23a There is a N. Y. 216, 2 L. R. A. 625. Such an
strong tendency toward giving re- assessment does not create a cloud
lief against a mistake of law. See upon the title. Wells v. Buffalo, 80
Story, Eq. Jur., § 212a; Cooper v. N. Y. 253.
Phipps, L. R. 2 H. L. 149; Doniell v. 6 Union Pac. Ry. Co. v. Dodge Co.,
Sinclair, L. R. 6 App. Gas. 181, 190. 98 U. S. 541; Dunnell Mfg. Co. v.
4 Sowles v. Soule, 59 Vt. 131 ; Shane Newell, 15 R L 23a
v. St. Paul, 26 Minn. 543; Powell v.
266
LIABILITIES OF PUBLIC COEPOEA.TIONS.
[§ 296.
payer to wait until his goods are sold or even seized.1 In Iowa
money paid under pr >test for illegal taxes is considered as paid
under compulsion. - So it has been held that taxes paid under
a void law to a person who appeared authorized to collect the
tax can be recovered although it was paid without protest.*
So one who by force of a statute is unable to place a deed of
record because of the existence of illegal taxes charged against
it may pay the taxes in order to secure the recording of the
deed without such payment being deemed voluntary.4
1 Atwell v. Zeluff, 26 Mich. 118.
2 Thomas v. Burlington, 69 Iowa,
140. See Eobinson v. Ruggles, 50
Iowa, 240.
3 Tuttle v. Everett, 51 Miss. 27.
4 State v. Nelson, 41 Minn. 25, 4 L.
R. A. 300, annotated. In this case
the court said: "It has always been
considered that the payment under
protest of an illegal tax or demand
to an officer armed with a warrant
authorizing him to enforce the pay-
ment by imprisonment or by seizure
and sale of property, and who is
about to so exercise his authority, is
not voluntary and may be recovered
back. Dakota County v. Parker, 7
Minn. 207; Seeley v. Westport, 47
Conn. 294; Allen v. Burlington, 45 Vt.
203; Nickodemus v. East Saginaw, 25
Mich. 456; Ruggles v. Fond du Lac,
53 Wis. 436; Smith v. Farrelly, 52 CaL
77; Guy v. Washburn. 23 Cal. Ill;
Grim v. Weissenberg School District,
57 Pa. St. 433. Nor is this proposi-
tion applicable merely with respect
to personal property. The same is
true, as it obviously ought to be,
when real property is involved. See
cases above cited, especially Seeley
v. Westport, Guy v. Washburn; also
Stephlan v. Daniel, 27 Ohio St. 527;
Valentine v. St. Paul, 34 Minn. 446.
Nor is it necessary, in order to con-
stitute compulsory as distinguished
from a voluntary payment, that the
unlawful demand be made by an of-
ficer who is prepared to enforce it
by process. There may be that kind
and. degree of necessity or coercion
which justifies and virtually requires
payment to be made of the illegal
demands of a private person who
has it in his power to seriously preju-
dice the property rights of another,
and to impose upon the latter the
risk of suffering great loss if the de-
mand be not complied with. This
is illustrated in the case of Fargusson
v. Winslow, 34 Minn. 384, and cases
cited." The payment of an illegal
water charge under threat that the
water would be shut off, which
would result in closing the plaintiff's
foundry, is such "moral duress" as
to make the payment compulsory.
Westlake v. St. Louis, 77 Mo. 47.
The fact that an ordinance subjects
a person to a fine of $25 a day for
selling liquor without a license made
the payment of an illegal license fee
compulsory. Marshall v. Snediker,
25 Tex. 460.
CHAPTEK XVL
LIABILITY FOR TORT — GOVERNMENTAL AND CORPORATE
DUTIES.
§ 297. Nature of corporation.
298. Nature of duty.
299. Discretionary powers.
300. Imposed and assumed duties.
301. Liability for acts of agents —
Respondeat superior.
302. Ultra vires torts.
303. Ratification of ultra vires acts.
304. Increase of liability by con-
tract
305. General rules.
L SOLELY GOVERNMENTAL DUTIES.
306. Definition.
307. Neglect to enact or enforce
laws.
308. Suspension of ordinances.
309. Liability for acts of a mob.
§310. Acts of police officers,
311. Prevention of fires.
312. Destruction of property to
prevent spread of fire.
313. Acts of firemen.
314. Acts of board of health — Care
of hospital.
315. Care of criminals.
316. Care of the indigent.
317. Care of school buildings.
IL SOLELY CORPORATE DUTIES.
318. Rule of liability for negli-
gence.
319. As owner of property.
320. Illustration — Wharves.
321. Private business enterprises,
gas and water.
§ 297. Nature of corporation. — In considering the liability of
public corporations for torts the distinction between municipal
corporations proper, such as chartered cities, and public quasi-
corporations, such as counties and towns, is of great importance.
The question of liability in many cases depends upon the nature
of the corporation, although the real basis for the distinction
between the liability of municipal corporations and counties and
towns ic found in the nature of the duties imposed upon them.
§ 298. Nature of duty. — The distinction between govern-
mental and corporate powers has been often referred to in the
course of this work.1 A municipal corporation exercises both
corporate and governmental powers, while public quasi-corpo-
rations exercise governmental powers only. As a general rule
there is no liability for negligence in the exercise of govern-
mental powers. Hence the liability of a municipal corporation
1 See § 22; also Lloyd v. New York, v. New York, 3 Hill (N. Y.), 531, 38
5 N. Y. 369, 55 Am. Dec. 347; Bailey Am. Dec. 669.
268 LIABILITIES OF PUBLIC CORPORATIONS. [§§ 299, 300.
in a particular case will depend upon the nature of the power
being exercised. It will be held liable for a negligent exercise
of its strictly corporate powers, but not liable for a negligent
exercise of purely governmental powers. More difficult ques-
tions arise when a municipal corporation is exercising powers of
a governmental nature for the special benefit of the particular
municipality. The liability in a particular case may be effected
by the manner in which the duty is imposed and the means of
performance. Careful attention must in all cases be given the
statutes of the state, as the common-law rules of liability to
which reference is made in this chapter have in many states
been very materially modified.
§ 299. Discretionary powers. — A municipal corporation is
not liable for injuries caused by the negligence of its officers
or agents in the discharge or the omission to discharge duties
which are purely discretionary.1 Its action in such a case is
final, although it may appear that it seriously misjudged the
public interest. Illustrations of cases in which such corpora-
tions are entitled to exercise discretion are found in the change
of grade of a street,2 opening and closing a street,3 making a
crossing at a particular place,4 or where reasonable and proper
regulations are temporarily suspended to the detriment of in-
dividual citizens.5
§ 300. Imposed and assumed duties. — The fact that the duty
has been imperatively imposed by the legislature or has been
voluntarily assumed by the municipality under authority of law
is not material as affecting the question of liability resulting
from negligence in the performance of the duty. Thus, where a
city provides and maintains a workhouse solely for the public
service and for the general good in providing for the care and
support of offenders for whose maintenance it was responsible,
the fact that the city was not compelled by law to provide such
an establishment and that it acted voluntarily does not affect its
liability for its acts in connection therewith.6
1 Howsman v. Trenton Water Mich. 98, 51 Am. Rep. 105. In this
Works, 119 Mo. 304, 23 L. R. A. 146. case the city designated a particular
2 Transportation Co. v. Chicago, 99 street for coasting.
U. S. 635. ecurran v. Boston, 151 Mass. 505,
8 Bauinan v. Campau, 58 Mich. 444. 8 L. R A. 243. See Tindley v. Salem,
« Smith v. Gould, 61 Wis. 31. 137 Mass. 171.
'See Burford v. Grand ilapids, 53
§ 301.] LIABILITY FOB TOKT. 269
§ 301. Liability for acts of agents — Respondeat superior. — A
city is not liable for damages resulting from the negligent ex-
ercise of a governmental power.1 Xeither is it responsible for
the torts of a public officer when engaged in the performance
of a public governmental duty, nor of a specific duty imposed
upon the officer by statute. In the latter case the officer de-
rives his authority from the law and not from the corporation,
and is not the representative of the corporation.2 The doctrine
of respondeat superior applies to the acts of the agents of a pub-
lic corporation when acting for the corporation and within the
scope of their authority.* But the corporation is not liable for
the acts of officers who are not under its control or engaged in
the performance of its duties. The officers may, in such cases,
be personally liable for the negligent performance of ministerial
duties. When, however, a public officer is engaged in the per-
formance of duties which rest upon the corporation, his acts
may bind the corporation in a particular case, although it would
not be generally liable for his negligence. Thus, a city is not
liable for damages caused by the tortious acts of a policeman,
but it may be liable for damages caused by a defect in a street
when a police officer has negligently failed to report the defect.4
A corporation is liable neither for the acts of independent
boards who do not act for it and are not subordinate to it, nor
of subordinate boards which exercise governmental power.5
1 "Wood, Master and Servant, § 463. therefore held that the city was not
2 In Sievers v. San Francisco, 115 liable for damages occasioned by an
CaL648, the court said: "In a learned erroneous fixing of a street grade
and very instructive note to God- eight feet above the official grade,
dard v. Hartwell, 30 Am. St. Rep. The court further said: "When the
373, Mr. Freeman, after careful and injury results from the wrongful act
critical review and analysis of many or omission of an officer charged
authorities, deduces and expresses with the duty prescribed and lim-
the rule of liability for the acts of ited by law, the officer is not treated
an officer of a municipality in the as the servant or agent of the cor-
following language : 'When an offi- poration in the performance of those
cer of a municipality has no other duties so enjoined, but is held to be
authority than that intrusted to the servant and agent of and con-
him by law, and he acts beyond trolled by the law, and for his acts
that authority and permits a tort the municipality would not be lia-
whereby a citizen is injured either ble."
in person or property, the tort is the a Field v. Des Moines, 39 Iowa, 575.
act of the officer only and ordinarily 4 Kunz v. Troy, 104 N. Y. 344, 10
no recovery of damages could be N. E. Rep. 442.
had except against him.'" It was 5 Bulger v. Eden, 82 Me. 352; Kuhn
270
LIABILITIES OF PUBLIC CORPORATIONS.
[§ 301.
Such independent boards are not, in general, held liable for the
negligent acts of their servants.1 " To determine whether there
is municipal responsibility, the inquiry must be whether the de-
partment whose misfeasance or nonfeasance is complained of is
a part of the machinery for carrying on municipal government,
and whether it was at the time engaged in the discharge of a
duty or charged with a duty primarily resting upon the munici-
pality." 2 The manner in which the members of a board are
appointed is important, but not decisive upon this question.3
It is not easy to determine when a municipality is liable for the
negligence of a contractor. It certainly cannot relieve itself
from the duty which rests upon it by transferring that duty to
a contractor. The corporation must see that the public is prop-
erly protected, and if the contractor fails to perform this duty
the city is responsible for the resulting damages.4 But when
the negligence relates to a matter with reference to which the
corporation is under no special obligation, the liability rests
upon the contractor alone.5 In jurisdictions where there is no
v. Milwaukee, 92 Wis. 263; Bryant v.
St. Paul, 38 Minn. 289.
1 O'Leary v. Board of Commission-
ers, 79 Mich. 281, 19 Am. St. Rep. 169;
Elmore v. Drainage Commissioners,
135 III. 269, 25 N. E. Rep. 1010; Anne
Arundel County v. Diwell, 54 Md.
'350, 39 Am. Rep. 393 (county com-
missioners).
2Pettengill v. Yonkers, 116 N. Y.
558. In O'Brien v. New York, 15
N. Y. Supp. 520, it is held that under
the statute the city is not liable for
the negligence of aqueduct commis-
sioners. In District of Columbia v.
Woodbury, 136 U. S. 450, the District
of Columbia was held liable for the
negligence of street commissioners
who were ultimately responsible to
congress. In Kobs v. Minneapolis,
22 Minn. 159, the city was held liable
for the negligence of a street com-
missioner appointed by the common
council.
* District of Columbia v. Wood-
bury, 136 U. S. 450. It has been held
that the corporation is liable when
it appoints the officer and the duty
to be performed is for the benefit
of the corporation. New York v.
Bailey, 2 Denio, 433 (engineer and
water commissioners); Tarney v.
New York, 12 Hun, 542 (board of
health); Walsh v. New York, 41 Hun,
299 (trustees of Brooklyn bridge).
So where the duty is imposed upon
the corporation and the officers or
department acts as the agent. Niven
v. Rochester, 76 N. Y. 619 (commis-
sioners of public works) ; Barnes v.
District of Columbia, 91 U. S. 540
(board of public works); Ehrgott v.
New York, 96 N. Y. 264 (park com-
missioners).
4 Turner v. Newburgh, 109 N. Y.
301; Jefferson v. Chapman, 127 111.
438; Circleville v. Neuding, 41 Ohio
St. 465; Hinck v. Milwaukee, 46 Wis.
565, 32 Am. Rep. 735; Grant v. Still-
water, 35 Minn. 242.
6 Harvey v. Hillsdale, 86 Mich. 330,
49 N. W. Rep. 141; Van Winter v.
Henry County, 61 Iowa, 684. See,
further, Herrington v. Lansingburg,
110 N. Y. 145; Depot v. Simmons, 119
Pa. St. 384.
§ 302.]
LIABILITY FOE TORT.
271
duty resting upon the corporation to keep the streets in proper
condition, there is no liability for acts of negligence of a public
officer engaged in the construction of a street.1
§ 302. Ultra vires torts. — The rule that a principal is civilly
liable for the acts of his agents when acting in the line of their
employment is applicable to municipal corporations. The acts
must, however, be within the general powers of the corpora-
tion,2 and not of a purely governmental nature. "A municipal
corporation is liable for the acts of its agents injurious to others
when the act is in its nature lawful and authorized, but is done
in an unlawful manner or in an unauthorized place, but it is
not liable for injuries or tortious acts which are in their nature
unlawful and prohibited." 3 The principle of non-liability of
public corporations for torts ultra vires is firmly established,4
1 Jensen v. Waltham, 166 Mass. 344
(assistant superintendent of streets);
McCann v. Waltham, 163 Mass. 344
(laborer employed by superintendent
of streets). A city is not liable for
acts of its servants in operating a
passenger elevator in a city halL
Snider v. St Paul, 51 Minn. 466.
Where a contractor in paving a
street unnecessarily deposits earth
upon an abutting lot, the corpora-
tion is not liable to the owner of the
lot. Fuller v. Grand Rapids, 105
Mich. 529, 63 N. W. Rep. 530. A city
is bound to give its workmen a rea-
sonably safe place in which to work
and is liable to them for damages
resulting from a failure to do so.
Norton v. New Bedford, 166 Mass. 48.
2 Smith v. Rochester, 76 N. Y. 506;
Stoddard v. Saratoga Springs, 127
N. Y. 261; Love v. Raleigh, 116 N. C.
296, 28 L. R A. 192 (fireworks man-
aged by officers of municipality);
Moffett v. Asheville, 103 N. C. 237;
Haag v. Vanderburg County, 60 Ind.
511 ; Elliott, Roads and Streets, p. 355;
McCarthy v. Boston, 135 Mass. 197;
Seele v. Deering, 79 Me. 34a The
rule of respandeat superior has no
application when the officer or agent
of a corporation acts in the discharge
of governmental duties. Anderson v.
East, 117 Ind. 126, 2 L. R A. 712 (an-
notated).
3 Worley v. Columbia, 88 Mo. 106.
4 A municipal corporation is not
liable for the malfeasance or negli-
gence of its officers or employees
when acting under the authority of
its ordinances and within the scope
of its charter powers. Hines v. Char-
lotte, 72 Mich. 278, 1 L. R, A. 844;
Robinson v. Rohr, 73 Wis. 436, 2 L. R
A. 366, note; Culver v. Streator, 130
ia 238, 6 L. R A. 270, and note on
"Municipal corporation not liable
except for its own negligence;" Lin-
coln v. Boston, 148 Mass. 578, 3 L. R
A. 257, note. The liability, if it exists,
is the creature of statute. Anderson
v. East, 117 Ind. 126, 2 L. R A. 7ia
The well-known case of Salt Lake
City v. Holiister, 118 U. S.' 256, re-
stricts the doctrine of ultra vires
when applied to municipal corpora-
tions. It was there held that the city
could not recover back money paid
as a tax for distilling spirits, although
the act of engaging in the business
was wholly ultra vires the corpora-
tion. See comment on this case in
Dillon, Mun. Corp., H, §793. n,te.
The doctrine is not consistently ai>
LIABILITIES OF PUBLIC CORPORATIONS.
[§ 302.
although it is often explained away in practice. It has been
held that a town is not liable for damages resulting from build-
ing a dam without corporate power 1 or under an unconstitu-
tional statute.2 So a city is not liable for the torts of officers
committed under the apparent authority of an ordinance which
the corporation had no power to enact.3 But the corporation
is sometimes held liable for acts done by it under a claim
of authority which is afterwards shown to be unfounded.4 A
plied and municipal corporations are
often held liable for ultra vires acts.
Thus, in Stanley v. Davenport, 54
Iowa, 463, 37 Am. Rep. 216, the city
was held liable for damages resulting
from its unauthorized act in allow-
ing a steam motor to go upon a street.
As to liability when it has granted
licenses without authority, see § 331,
infra. As to liability on ultra vires
contracts, see § 288, supra.
1 In Anthony v. Adams, 1 Met.
(Mass.) 284, the county commission-
ers ordered a dam built and it was
constructed by the selectmen with-
out a vote or other action of the
town. It was held that the town
was not liable for negligence in this
case.
2 Albany v. Cunliff, 2 N. Y. 165. But
see Schussler v. Hennepin Co. (Minn.,
1897), 70 N. W. Rep. 6. In Board of
Commissioners v. Duprez, 87 Ind.
509, Mr. Justice Elliott said: "There
is a fatal defect in the complaint. It
is not shown that the bridge was
one which the county had authority
to build. It is settled that a public
corporation cannot be held liable for
injuries resulting from an act done
by its officers beyond its power and
jurisdiction. There is in this respect
a well-defined distinction between
public and private corporations.
Browning v. Board, 44 Ind. 11; Haag
v. Board, 60 Ind. 511, 28 Am. Rep.
654; Driftwood & Co. v. Board, 72
Ind. 226; Cummins v. City of Sey-
mour, 79 Ind. 491, 41 Am. Rep. 226.
A public corporation is not liable for
injuries caused by the unsafe condi-
tion of a bridge which its officers
had no authority to build. 2 Dill.
Mun. Corp. (3d. ed.), § 970 (4th ed.,
§ 1017). There is nothing showing
that the bridge formed any part of a
highway or that the place where it
was built was one where the county
had authority to build a bridge.
Where negligence is the ground of
an action against a public corpora-
tion, it is necessary to show a duty
and its breach. Neither a county
nor a city can be made responsible
for negligence in maintaining a
bridge or highway unless there rests
upon it some duty."
3 Field v. Des Moines, 39 Iowa, 575,
579.
4 In Thayer v. Boston, 19 Pick.
(Mass.) 511, the court said: "There
is a large class of cases in which the
rights of both the public and of in-
dividuals may be deeply involved in
which it cannot be known at the
time the act is done whether it is
lawful or not. The event of a legal
inquiry in a court of justice may
show that it was unlawful. Still if
it was not known and understood to
be unlawful at the time; if it was
an act done by the officers having
competent authority, either by ex-
press vote of the city government
or by the nature of the duties and
functions with which they are
charged by their offices, to act upon
the general subject-matter; and es-
pecially if the act was done with an
honest view to obtain for the public
I 302.] LIABILITY FOR TORT. 273
city is liable for the trespasses or malicious injuries committed
by its agents when engaged in the execotion of its powers.1
The city has no power ta call a political meeting, and one who
is injured by the careless discharge of a cannon at a meeting
called and managed by the city council has no right of action
against the city.2 In the absence of express power a public
corporation has no right to expend money for public celebra-
tions, and there is no liability for injuries resulting from the
explosion of fireworks on such occasions. It has been held that
this is true where the fireworks were exhibited under a permit
granted by the municipal authorities under an ordinance pro-
hibiting anything of the kind without such a permit.* Where
such exhibitions, however, amount to a nuisance the city is
liable for injuries resulting therefrom.4
The fact that work is being done by the day when the char-
ter requires that it shall be done by contract is no defense to
an action for negligence.5 The city has been held not liable
for placing an obstruction in the street without authority,6 al-
though it has been held liable for injuries resulting from un-
lawfully licensing persons to allow a wagon to stand in the
street.7 The former decision is inconsistent with the duty of
caring for the street. A city is liable for trespass in attempt-
ing to acquire a lot as a site for a public building in an unlaw-
ful manner when it has power to acquire it lawfully.8 A city
is not liable for injuries received by a prisoner while engaged
in working with other prisoners under the direction of the chief
some lawful benefit or advantage, — Rep. 805 (where the fireworks were
reason and justice obviously require discharged by citizens with the par-
that the city, in its corporate capac- ticipation of the town officers, who
ity, should be liable to make good made no attempt to stop it).
the damage sustained by an individ- * Fifield v. Phoenix (Ariz.), 24 L. R.
ual in consequence of the acts thus A. 430. See § 308.
done." To the same effect is Schuss- 4 The persons were acting under
ler v. Hennepin Co. (Minn., 1897), 70 express authority. Spiers v. Brooklyn,
X. W. Rep. 6. 39 N. Y. 6, 21 L. R. A. 640.
1 Allen v. Decatur, 23 III 372; Man- SDonahoe v. Kansas City, 136 Mo.
ners v. Haverhill, 135 Mass. 165; 657; Collinsworth v. New Whatcom,
Leeds v. Richmond, 102 Ind. 372. 16 Wash. 224, 47 Pac. Rep. 439.
2 Morrison v. Lawrence, 98 Mass. 6 Redford v. Coggeshall (R L), 36
219; Findley v. Salem, 137 Mass. 171, Atl. Rep. 89.
50 Am. Rep. 289 (celebration of a 7 Cohen v. New York, 113 N.Y. 532.
holiday under direction of the city); 8 Oklahoma v. Hill (OkL), 50 Pac.
Ball v. Woodbine, 61 Iowa, 83, 47 Am. Rep. 24&
18
274 LIABILITIES OF PUBLIC CORPORATIONS. [§§ 303, 304:.
of police, who acted without authority in requiring the prisoner
to work.1
§ 303. Ratification of ultra vires acts. — If a corporation is not
liable for an ultra vires tort because in excess of its power it can-
not make itself liable by ratification of the act after it has been
done by its agents ; * but it may become liable by the adoption
or ratification of acts which were beyond the powers of the
agents but within the scope of the powers of the corporation.
Such ratification may be express or it may be inferred from
circumstances such as receiving the benefit of the wrongful
act. Thus, a county may become liable for the ultra vires acts
of its officers by adopting them in its answer.3 And it was
held that a county which constructed a darn under the author-
ity of an unconstitutional act of the legislature is liable for
damages occasioned thereby when it assumes the entire respon-
sibility for the same and asserts the validity of its acts in its
answer.4
§ 304. Increase of liability ~by contract. — The officers of a
city cannot lawfully contract to extend its liability for negli-
1 Royce v. St. Louis (Utah), 49 Pac. and that it was performed within
Rep. 290. the scope of the board's official duty.
2 Hodges v. Buffalo, 2 Denio (N. Y.), ... It insists upon retaining the
110; Mitchell v. Rockland, 52 Me. 118; benefits of the illegal acts of its of-
Moore v. New York, 73 N. Y. 238; ficers. It is not willing that the
Trescott v. Waterloo, 26 Fed. Rep. wrong shall cease, but aggressively
592. insists that it will make no repara-
8 Wilde v. New Orleans, 12 La. Ann. tion for its past tort, and that it has
15. a legal right to enjoy in the future all
4 Schussler v. County Commission- the benefits secured through an un-
ers of Hennepin County (MirAi., 1897), constitutional law. . . . We may
70 N. W. Rep. 6. The county not concede the general rule to be that
only failed to plead that the acts the defendant would not be respon-
complained of were ultra vires, but sible for the unauthorized and unlaw-
adopted and ratified them and in- ful acts of its officers done colore of-
sisted that they were right, proper ficii; but where the defendant ex-
and legal and insisted that the acts pressly authorizes such act, or, when
were performed under a public ne- done, adopts and ratifies it, and re-
cessity. The court said: "It is there- tains and enjoys its benefits and
fore not a mere act of negligence of persists in so doing, it is liable in
the board of county commissioners damages." Citing Thayer v. Bostou,
in the performance of an official 19 Pick. (Mass) 511. The rule of these
duty, but an active and affirmative cases must be regarded as an excep-
tort, done under claim of statutory tion to the general rule that a corpo-
authority and duty, and justified ration is not responsible for torts
upon such grounds by defendant, ultra vires its legal powers.
§ 305.] LIABILITY FOB TOET. 275
gence in a particular instance beyond that imposed by the law.
Hence, a contract entered into between a city and a party
from whom it purchased a right of way, to the effect that the
city would have the sewer so constructed as to prevent water
from flowing back on the grantor's premises, was held void
in so far as it assumed to guaranty the grantor against dam-
ages, without reference to the manner in which the work of the
city was done.1 A city is not liable for the failure to extin-
guish fires,2 although it owns the water-works and receives an
income therefrom ; and in the absence of an express charter
authority a contract imposing such liability upon the city is
void.' Where an action was brought against the city based
upon the neglect of the water-works company to supply suffi-
cient water to extinguish a fire, and it appeared that the city
had taken from the water-works company a bond to indemnify
it against damages that might result from the water company's
negligence in the construction and management of its works,
the court said:4 "Indemnification against liability must al-
ways be regarded as having reference to existing grounds of
liability and not as serving to create new ones. Besides, the
city could not assume liability for negligence in cases where
the law did not impose a liability. The contract then must be
construed as covering cases only where an action might be
maintained against the city independent of the contract."
§ 305. General rules. — Subject to statutory modifications,
it may safely be stated as a general rule that :
1. A public corporation is not liable for failing to exercise
or for improperly exercising its purely governmental powers.
2. A municipal corporation, when dealing with property held
by it as a private owner, is liable as an individual owner.
i Nashville v. Sutherland. 92 Tenn. 'Black v. Columbia, 19 S. C. 412,
335, 19 L. R A. 619, note on ultra vires. 45 Am. Rep. 785.
2 Springfield F. & M. Co. v. Keese- 4 Van Home v. DesMoines, 63 Iowa,
ville, 148 N. Y. 46,30 L. R A. 660; 447; Becker v.Keokuk Water Works,
Mendel v. Healey, 28 W. Va. 233, 57 79 Iowa, 419. The taking of a bond
Am. Rep. 664, where the city was from a railroad company which is
empowered to maintain a sufficient about to lay its tracks in the streets
number of reservoirs "to supply of the city to save the city harmless
water in case of fire; " Grant v. Erie, from the results of the negligence of
69 Pa, St 420, 8 Am. Rep. 272. See the company does not increase the
£§ 147, 311. liability of the city. Terry v. Rich-
mond (Va., 1897), 38 L. R, A. 834.
276 LIABILITIES OF PUBLIC CORPORATIONS. [§ 306.
3. A municipal corporation is liable for negligence in the
discharge of ministerial or specified duties, not discretionary
or governmental, assumed in consideration of the privileges
conferred by its charter, although there are no special awards
or advantages.
4r. In many states by the common law, and in some states by
statute, a municipal corporation is liable for failure to keep
streets, alleys, roads, sidewalks and bridges in repair. No such
liability rests upon counties and townships at common law.
I. SOLELY GOVERNMENTAL DUTIES.
§ 306. Definition. — Solely governmental duties are such as
involve the exercise of governmental power and are assumed
for the exclusive benefit of the public. The sovereign acts of
a government cannot be submitted to the judgment of the
courts. The government is not a subject of private law. "The
rule that a tort creates a liability for damages is a rule of pri-
vate law; it therefore applies to the relations of the private
law only. The position of the state, when it acts in the exer-
cise of sovereign and governmental functions, is, however, en-
tirely beyond the sphere of private law, and must be judged
by different standards. . . . Governmental functions do
not create civil causes of action." 1 The state, directly or through
its corporate agencies, "gives such protection from law-break-
ers, from fire, from disease and from other common evils as
the power, energy and faithfulness of the government shall
compass." A person can have no civil action from, damages
resulting from his being badly governed.2
1 Freund, " Private Claims against " The duty of a municipal corpora-
the State," Political Science Quar- tion to see that the streets and side-
tei'ly, VIII, p. 648. walks are in a safe condition, and
2 Many cases in support of the rule its sewers and drains are kept in
that a municipal corporation is ex- good order, and that its other like
empt from liability when acting as municipal obligations are cared for,
the agent of the state and exercising is a purely ministerial and absolute
governmental power are collected corporate duty, assumed in consid-
and reviewed in Donaher v. City of eration of the privilege conferred by
Brooklyn, 51 Hun (N. Y.), 563, and in its charter; and the law holds the
Moffitt v. City of Asheville, 103 N. C. municipality responsible for an in-
237, 14 Am. St. Rep. 810 and note, jury resulting from a negligent dis-
In Terry v. Richmond (Va., 1897), 38 charge of that duty or the negligent
L. R. A. 834, the rule is thus stated: omission to discharge it, but ex-
§§ 307, 308.]
LIABILITY FOB TORT.
277
§ 307. Neglect ti enact or enforce laws. — A corporation is
not liable for a failure to enact or neglect to enforce or observe
its own laws and ordinances.1 Hence there is no liability for
damages resulting from a failure to enforce an ordinance against
the use of fireworks,2 against allowing sunken vessels to remain
in a river,8 against allowing swine to run at large,4 against
nuisances,5 against coasting on the streets,6 or against the erec-
tion of certain kinds of buildings within the fire limits,7 or
against creating a nuisance.9
§ 308. Suspension of ordinances. — It rests with the corpora-
tion to determine whether it will exercise its governmental
empts it from liability for the exer-
cise of governmental or discretion-
ary powers." Richmond v. Long, 17
Gratt. 375, 94 Am. Dec. 461; Peters-
burg v. Applegarth, 28 Gratt 843, 26
Am. Rep. 337; Elliott, Roads and
Streets, pp. 504, 532; Dillon, Mun.
Corp., II, g§ 1046, 1049; Tiedeman,
Mun. Corp., g 349; Cooley, Torts,
p. 738; Stevens v. Muskegon (Mich.),
69 N. W. Rep. 227; Eddy v. Granger,
19 R. I. 105; Commissioners v. All-
man, 142 Ind. 58.
1 Harmon v. St. Louis (Mo.), 38 &
W. Rep. 1102; Fowle v. Alexandria,
3 Pet (U. S.) 398; Wheeling v. Ply-
mouth, 116 Ind. 158; Forsyth v. At-
lanta, 45 Ga 152; Burford v. Grand
Rapids. 53 Mich. 98, 51 Am. Rep. 105.
In Anderson v. East, 117 Ind. 126, the
rule is thus stated: "A municipal cor-
poration is an instrumentality of gov-
ernment and is not liable for a fail-
ure to exercise legislative or judicial
powers, nor for an improper or negli-
gent exercise of such powers. . . .
In one thing all unite, and that is in
affirming that no recovery can in any
event be had where the negligence
of the municipal corporation consists
in failing to perform a legislative,
judicial or discretionary duty or in
simply performing such a duty in an
improper method."
2McDade v. Chester, 117 Pa. St.
414, 2 Am. St. Rep. 681; Hubbell v.
City of Viroqua, 67 Wis. 343, 58 Am.
Rep. 866 (shooting-gallery under a
license); Robinson v. Greenville, 43
Ohio St. 625, 51 Am. Rep. 857; Ball
v. Woodbine, 61 Iowa, 83, 47 Am.
Rep. 805.
3 Coonley v. Albany, 57 Hun, 327.
< Levy v. New York, 1 Sandf. (N. Y.)
465. But a city may be liable for al-
lowing cattle to run at large in the
streets under circumstances which
amount to a nuisance. Cochrane v.
Frostburg, 81 Md. 54, 31 Atl. Rep. 703,
27 L. R. A. 728. In Mayor v. Marriott,
9 Md. 174, 63 Am. Dec. 326, it was
held that where a statute conferred
a power upon a public corporation
to be exercised for the public good
the exercise of that power is not dis-
cretionary but imperative. Hence,
in Cochrane v. Frostburg, 81 Md. 54,
48 Am. St Rep. 479, a city was held
liable for damages caused by a cow
running at large in the street where
the city had power to restrain by
ordinance.
5 Davis v. Montgomery, 51 Ala. 139;
Butz v. Cavanaugh, 137 Ma 503, 38
S. W. Rep. 1102.
6 Wilmington v. Von Degrift (Del.),
29 Atl. Rep. 1047, 25 L. R. A. 538.
1 Harman v. St. Louis, 137 Ma 494,
38 S. W. Rep. 1104.
8 Moran v. Palace Car Ca, 134 Mo.
641, 56 Am. St Rep. 543,
LIABILITIES OF PUBLIC CORPORATIONS. [§ 309.
powers. It may entirely fail to act or it may temporarily sus-
pend an ordinance without becoming liable for injuries result-
ing thereby to individuals. Thus, there is no liability when an
ordinance is suspended and a fire is started by boys exploding
fireworks,1 or for damages caused by a runaway horse which
was frightened by fireworks ; 2 or to a person who is injured
by cattle allowed to run at large in the streets under a sus-
pended ordinance.3 A distinction, however, is sometimes made
between the mere suspension of an ordinance and the granting
of a license to an individual to do an otherwise forbidden
thing.4
§ 309. Liability for acts of a mob.^— In the absence of a stat-
ute there is no liability on the part of a public corporation for
negligence in failing to protect the lives and property of the
citizens from mob violence.5 In many states, however, statutes
have been enacted giving a right of action against a municipal-
ity for damages caused by the destruction of property by a
mob.6 The right, however, is purely statutory, and may be
taken away at any time before or after the damage has been
sustained.7 A statute providing that the corporation shall be
1 Hill v. Charlotte, 72 N. C. 55, 21 Am. Rep. 787. Contra, Cochrane v.
Am. Rep. 451. Frostburg, 81 Md. 54, 48 Am. St. Rep.
2 Lincoln v. Washburn, 148 Mass. 479.
578, 3 L. R. A. 257. As to liability for < McCaull v. Manchester, 85 Va. 579,
injuries caused by the firing of a 2 L. R. A. 691.
cannon in a public street by the 8 Western Reserve College v.Cleve-
permission but without the express land, 12 Ohio St. 375; Robinson v.
license of the corporation, see Rob- Greenville, 42 Ohio St. 625; Gian-
inson v. Greenville, 42 Ohio St. 625, fortone v. New Orleans, 61 Fed. Rep.
51 Am. Rep. 857, note. As to liability 64, 24 L. R. A. 592 (the authorities
for failure to prevent a nuisance, see are collected in a note to this case);
Faulkner v. Aurora, 85 Ind. 130, 44 Hart v. Bridgeport, 13 Blatchf. 289;
Am. Rep. 1; Pierce v. New Bedford, Prather v. Lexington, 13 B. Mon. 559,
120 Mass. 534, 37 Am. Rep. 387; 56 Am. Dec. 585.
Schultz v. Milwaukee, 49 Wis. 254, 35 6 Darlington v. New York, 31 N. Y.
Am. Rep. 779. A city is liable for 164, 88 Am. Dec. 248; Palmer v. Con-
injuries to property by an explosion cord, 48 N. H. 211, 97 Am. Dec. 605.
of fireworks under a permit consti- In Allegheny County v. Gibson, 90
tuting a dangerous public nuisance. Pa. St. 397, 35 Am. Rep. 670, it was
Speir v. Brooklyn, 139 N. Y. 6, 21 L. held that under the statute the
R. A. 641. This case is not in ac- county was liable to a non-resident
cordance with the weight of author- for the value of property destroyed
ity. See note to Scanlon v. Wedger, by a mob while passing through the
in 16 L. R. A. 395; also next section, county.
» Rivers v. Augusta, 67 Ga. 376, 38 7 State v. New Orleans, 109 U. S.
3 310.]
LIABILITY FOE TORT.
279
liable for the destruction of property by a mob will not sustain
an action for the taking of human life.1 A party cannot re-
cover if he had previous knowledge of the intended attempt to
destroy his property, unless he or his agent gave notice of such
intention to the officials whose duty it was to guard the prop-
erty.2 The party must use due diligence on his own part to pre-
vent the injury,3 but he will not be presumed to have acted
illegally or improperly.4 The constitutionality of such statutes
has been frequently called in question and uniformly sustained.*
It is not the duty of a person to employ an armed force to pro-
tect his property, and he cannot be charged with negligence
because he declined to take human life. It is no defense under
such a statute that the mob was composed of the employees of
the plaintiff.6
§ 310. Acts of police officers. — Police officers act solely in re-
lation to the governmental duty of the state to preserve order,
and no liability rests upon the corporation for their negligence
in the performance of such duties.7 Thus, a city is not liable
285; Nevr Orleans v. Abagznatto, 62
Fed. Rep. 240, 26 L. R. A. 329. For
construction of such a statute, see
Adams v. Salina (Kan.), 48 Pac. Rep.
918. For definition of a " riot," see
Aron v. City of Wausau (Wis., 1898),
74 N. W. Rep. 354; 2 Whart. Cr. Law
(10th ed.), § 1537.
1 Jolly v. Hawesville, 89 Ky. 279;
Gianfortone v. New Orleans, supra,
and note.
2 Allegheny County v. Gibson,
90 Pa. St. 397; Moody v. Niagara
County, 46 Barb. (N. Y.) 659.
8 Chadbourne v. Newcastle, 48 N. H.
196: Eastman v. New York, 5 Robt.
(N. Y.) 389; Underbill v. Manchester,
45 N. H. 214; Hill v. Rensselaer
County, 119 N. Y. 344
4 Palmer v. Concord, 48 N. H. 211,
97 Am. Dec. 605.
5 Pennsylvania Co. v. Chicago, 81
Fed. Rep. 317; Darlington v. New
York, 31 N. Y. 164, 88 Am. Dec. 248;
Hagerstown v. Sehner, 37 Md. 180.
6 Spring Valley Co. v. Spring Val-
ley, 65 III App. 571.
?Woodhull v. New York, 150 N. Y.
450; Taylor v. Owensboro, 98 Ky. 271;
Gullikson v. McDonald, 62 Minn. 278;
Kies v. Erie, 135 Pa. St 144; Kim-
ball v. Boston, 1 Allen, 417; Calwell
v. Boone, 51 Iowa, 687; Perkins v.
New Haven, 53 Conn. 214; Dargan
v. Mobile, 31 Ala. 469, 70 Am. Dec,
505. In Culver v. Streator, 130 III
238, 6 L. R A. 270, the court said:
"Police officers appointed by the city
are not its agents or servants so as
to render it responsible for their un-
lawful or negligent acts in the dis-
charge of their duties. Accordingly
it has been held that the city is not
liable for an assault and battery com-
mitted by its police officers, though
done in an attempt to enforce an or-
dinance (Buttrick v. Lowell, 1 Allen,
172); nor for illegal or oppressive
acts of officers committed in the ad-
ministration of an ordinance (Odell
v. Schroeder, 58 111. 353); nor for an
arrest made by them which is ille-
gal for want of a warrant (Pollock
v. Louisville, 13 Bush, 221; Cook v.
2SO LIABILITIES OF PUBLIC CORPORATIONS. [§ 311.
for damages resulting from an unlawful arrest;6 the act of a
drunken policeman in. assaulting a citizen;* allowing a horse
to escape and be killed while attempting to make an arrest for
fast driving;8 nor the wanton and malicious killing of a dog
under the pretense of enforcing an ordinance.4 So where an
officer whose duty it is to kill unmuzzled dogs, by his reckless-
ness in attempting to discharge such duty injures an individ-
ual, the corporation is not liable for damages.5
§ 311. Prevention of fires. — The obligation to prevent the
destruction of property by fire is solely governmental.6 "As
a part of the governmental machinery of the state, municipal
corporations legislate and provide for the customary local con-
veniences of the people, and in exercising these discretionary
functions the corporations are not called upon to respond in
damages to individuals either for omissions to act or for the
mode of exercising powers conferred on them for public pur-
poses and to be exercised at discretion for the public good." 7
The protection of all the buildings in a city or town from
destruction or injury by fire is for the benefit of all the inhab-
itants and for their protection from a common danger.8 A
city is not an insurer of the property of its inhabitants. The
Macon, 54 Ga. 468; Harris v. Atlanta, Kan. 511. The policeman is per-
62 Ga. 290); nor for their unlawful sonally liable for making a mali-
acts of violence, whereby, in the ex- cious arrest. Bolton v. Velines (Va.),
ercise of their duty in suppressing 26 S. E. Rep. 847.
an unlawful assembly, an injury is 2McElroy v. Albany, 65 Ga. 387, 38
done to the property of an individ- Am. Rep. 791. Nor for unnecessary
ual (Stewart v. New Orleans, 9 La. violence in making an arrest. Cal-
Ann. 481, 61 Am. Dec. 219; Durgan well v. Boone, 51 Iowa, 687.
v. Mobile, 31 Ala, 409)." Cobb v. 8 Elliott v. Philadelphia, 75 Pa. St.
Portland, 55 Me. 381, 92 Am. Dec. 342, 15 Am. Rep. 591.
598. There is no liability for acts of 4 Moss v. Augusta, 93 Ga. 797.
police when attempting to enforce 8 Culver v. Streator, 130 111. 238,
an illegal ordinance. Easterly v. 6 L. R. A. 270; Whitefield v. Paris,
Town of Erwin (Iowa), 68 N. W. Rep. 84 Tex. 431, 15 L. R. A. 783 (anno-
919. No liability of city to one who tated).
is injured while aiding the police to 6Edgerly v. Concord, 59 N. H. 78;
make an arrest Cobb v. Portland, Welsh v. Rutland, 56 Vt. 228; Hayes
55 Me. 381. v. Oshkosh, 33 Wia 314, 14 Am. Rep.
1 Attaway v. Cartersville, 68 Ga. 760.
740; Peters v. Lindsborg, 40 Kan. " Edgerly v. Concord, 62 N. H. 8.
654; Gullikson v. McDonald, 62 Minn. 8 Wheeler v. Cincinnati, 19 Ohio St.
278; City of Caldwell v. Prunelle, 57 19, 2 Am. Rep. 36&
§ 312.] LIABILITY FOB TOET. 281
extent and manner of the exercise of the power to prescribe
regulations governing a fire department must necessarily be
determined by the judgment and discretion of the proper mu-
nicipal authorities, and for any defect in the execution of such
powers the corporation cannot be held liable to individuals.1
It is not, therefore, liable for neglect of duty on the part of
fire companies or their officers charged with the duty of ex-
tinguishing fires. "When a municipal corporation undertakes
to furnish water to be used as a protection against fire, it acts
in its governmental capacity, and is not liable in damages for
injury caused by lack of water or a defect in the h \~drants or
other machinery of the fire or water department. By accept-
ing a statute authorizing the maintenance of a system of water-
works and constructing its water-works under it, a city does
not "enter into any contract with or assume any liability to
the owners of property to furnish means or water for the extin-
guishment of fires upon which an action can be maintained."8
§ 312. Destruction of property to prevent spread of fire. —
By the common law, under the principle expressed in the maxim
solus populi supremo, lex, an individual or a corporation might
destroy houses or other private property to prevent the spread
of a conflagration without being responsible to the owner for
the value of the property so destroyed.3 Thus, Lord Coke
says: "For the Commonwealth, a man shall suffer damage; as
for the saving of a city or town, a house shall be plucked down
if the next be on fire.4 This every man may do without being
liable for an action." It must appear, however, that there
was a reasonable necessity for such destruction.5 It is not un-
i Mendel v. Wheeling, 28 W. Va. 30 L. R A. 660, and cases cited in
253, 57 Am. Rep. 665; Heller v. Se- preceding note.
dalia, 53 Mo. 159, 14 Am. Rep. 444; *Bowditch v. Boston. 101 U. S. 16;
Van Home v. Des Moines, 63 Iowa, McDonald v. Red Wing, 13 Minn. 38;
447, 50 Am. Rep. 750; Grant v. Erie, Field v. Des Moines, 39 Iowa, 575.
69 Pa. St 420, 8 Am. Rep. 272; Patch * Mouse's Case, 12 Coke, 13, 63.
v. Covington, 17 B. Mon. (Ky.) 722, 6In Bishop v. Macon, 7 Ga. 200, 50
66 Am. Dec. 186; Black v. Columbia, Am. Dec. 400, it was held that the
19 S. C. 412, 45 Am. Rep. 785; Hows- property owner could maintain an
man v. Trenton Water Co.,1 119 Mo. action against the city in assumpsit
304, 23 L R. A. 148 (annotated). for the value of property that might
2Tainter v. Worcester, 123 Mass, have been saved; but this decision
311, 25 Am. Rep. 90; Springfield Fire has been questioned. See cases cited
Ins. Co. v. Keeseville, 148 N. Y. 46, in next note.
282 LIABILITIES OF PUBLIC COKPOKATIONS. [§ 313.
common for the law to designate certain officers who are to
determine when an emergency exists and to order the destruc-
tion of private property under such circumstances. Corpora-
tions are also frequently made liable by statute for the value
of property thus destroyed.1 It must appear clearly that there
is an intention to charge the corporation, and the party seeking
his remedy must proceed under the statute.2 The destruction
of property under a necessity of this nature is not the taking of
private property for a public use for which compensation must
be made under the constitution.
§ 313. Acts of firemen. — The officers and men of a city fire
department are public officers or agents for whose negligence
the corporation is not liable.3 This is true whether the injury
for which it is sought to recover damages results from the neg-
ligent acts or omissions of firemen while engaged in their
proper duty of extinguishing fires, in keeping the department
apparatus in order,4 or in the management and care of the ap-
pliances of the department when not in actual service. Thus,
there can be no recovery for the value of property destroyed
lay fire started by sparks escaping from a steam fire-engine
while used in extinguishing a fire;5 nor for an injury to a per-
son resulting from the bursting of hose ; 6 nor for damages caused
by a runaway horse frightened by the escape of steam from
a fire-engine;7 nor for an injury resulting from the negligent
1 For a full discussion of general natural and probable result of the
questions of liability, see Field v. explosion.
Des Moines, 39 Iowa, 575, 18 Am. Rep. 3 Grube v. St. Paul, 34 Minn. 402;
46; McDonald v. Red Wing, 13 Minn. Wilcox v. Chicago, 107 III 337, 47
38 (Gil. 25). Am. Rep. 434, and cases cited in
2 Keller v. Corpus Christi, 50 Tex. following notes. The rule of respon-
614, 32 Am. Rep. 613. In People v. deat superior has no application in
Brisbane, 76 N. Y. 558, 32 Am. Rep. such a case. Jewett v. New Haven,
337, it was held that where the stat- 38 Conn. 368, 9 Am. Rep. 382; Fisher
ute provides that compensation shall v. Boston, 104 Mass. 87, 6 Am. Rep. 196.
be made for a building blown up or 4 Welsh v. Rutland, 56 Vt 228, 48
destroyed by order of a designated Am. Rep. 762.
officer, the owner of another build- 5 Hayes v. Oshkosh, 33 Wis. 314, 14
ing across the street which was Am. Rep. 760.
wrecked by the explosion, but which 6 Fisher v. Boston, 104 Mass. 87, 6
was not intended to be destroyed, Am. Rep. 196.
cannot recover, although the de- 7Burrill v. Augusta, 78 Me. 118, 57
struction of his building was the Am. Rep. 788.
§ 314:.] LIABILITY FOK TOUT. 283
driving of a fireman on the way to a fire;1 nor for injuries in-
flicted while the firemen are practicing in the streets2 or en-
gaged in a parade,3 or thawing a hydrant,4 or by allowing a lad-
der to project from an engine house over the sidewalk.5 The
fact that firemen engaged in the extinguishing of fires are
members of a voluntary association and not paid firemen does
not change the rule as to the liability of the city for their neg-
ligence.6 The citv- is not liable for the negligence of the mem-
bers of a fire patrol 7 nor of a board of fire commissioners.8
There may, however, be instances where, on other grounds, a
corporation is liable in damages for injuries resulting from
the negligent acts of its firemen or police officers. Thus, a city
may be liable for damages resulting from an obstruction wrong-
fully placed and allowed to remain in a highway by a fire
department.9 It is the duty of the corporation to keep the
highway safe for the use of travelers, and a city is liable for
damages resulting from allowing a nuisance to exist in a high-
way after due notice thereof. Hence, if a police officer leaves
a trap-door open in a sidewalk in front of a police station, and
as a result an individual is injured, the city is liable.10 This
liability, however, is based not upon the act of the officer, but
upon the negligence on the part of the city in failing to care
for its property.
§ 314. Boards of health — Care of hospitals. — The duties of
a board of health are public and not corporate, and the city is
therefore not liable for negligence of officers in the discharge of
1 Wilcox v. Chicago, 104 I1L 334, 47 6 Torbush v. Norwich, 38 Conn. 225,
Am. Rep. 434; Greenwood v. Louis- 9 Am. Rep. 395.
ville, 13 Bush, 226, 26 Am. Rep. 263 "> Boyd v. Insurance Patrol of Phil-
2 Thomas v. Findley, 6 Ohio C. C. adelphia, 113 Pa. St 269. In New-
241; Giilespie v. Lincoln, 35 Neb. 34, comb v. Boston Protection Dept., 151
16 L. R A. 349. Mass. 215, 24 N. E. Rep. 39, it was
8 Rope drawn across the street, held that such an organization was
Simon v. Atlanta, 67 Ga. 618, 44 a private corporation and liable for
Am. Rep. 739. the negligence of its agents.
< Welsh v. Rutland, 56 Vt 228, 48 SQ'Leary v. Board, 79 Mich. 281, 7
Am. Rep. 762. L. R A. 170.
5 Dodge v. Granger, 17 R, L 664. 9 See opinion of Tillinghast, J., in
For further illustrations of the prin- Dodge v. Granger, 17 R L 664, 15
ciple see cases cited in note to this L. R A. 781.
case, in 15 L. R A. 781. lo Carrington v. St Louis, 89 Mo. 208.
284:
LIABILITIES OF PUBLIC CORPORATIONS.
[§ 315.
such duties.1 Hence, a city is not liable for negligence of those in
charge of its public hospitals,2 or engaged in handling garbage ; 8
nor is it. liable for the negligence of the county physician.4 Where
the board of health is a separate body, its members and officers
are not the agents of the corporation, and their negligence
is not its negligence. Hence, the neglect or carelessness of a
quarantine officer upon whom the public imposes the duty of
preventing the spread of disease creates no liability against the
corporation.5
§ 315. Care of criminals. — A city is not liable to a person
who is confined in a city prison for damages occasioned by neg-
ligence of the officers or the bad sanitary condition of the
prison.6 ISTor is it liable for injuries occasioned by the destruc-
tion of a jail by fire occasioned by the negligence of its officers.7
Nor is a county liable for injuries caused by defective ma-
chinery used in a state prison ; 8 nor for the death of a convict
due to the negligence of a foreman.9 The city is not liable for
1 Bryant v. St. Paul, 83 Minn. 289,
53 Am. Rep. 31 ; Love v. Atlanta, 95
Ga. 129, 51 Am. St. Rep. 64; Orlando
v. Pragg, 31 Fla. Ill, 34 Am. St. Rep.
17, 25; WhitSeld v. Paris, 84 Tex. 431,
31 Am. St. Rep. 69, note; Hughes v.
Monroe County, 147 111. 49.
2 Benton v. Trustees of Boston City
Hospital, 140 Mass. 13; Brown v.
Vinalhaven, 65 Me. 402; White v.
Marshfield, 48 Vt. 20; McDonald v.
Mass. Gen. Hospital, 120 Mass. 432
(a charitable corporation). But see
12 R. I. 411.
s Kuehn v. Milwaukee, 92 Wis. 263.
4 Summers v. Davis County, 103
Ind.263; Sherbourne v.Yuba County,
21 Cal. 113; Bates v. Houston (Tex.),
37 S. W. Rep. 383.
8 Forbes v. Escambria Board of
Health, 28 Fla. 26, 13 L. R. A. 549. In
Ogg v. Lansing, 35 Iowa, 495, 14 Am,
Rep. 499, the plaintiff was asked by
the health officer to assist in moving
a coffin which contained the body of
a person who had died of the small-
pox, which was known to the officer.
The plaintiff caught the disease, and
from him it was contracted by his
children. It was held that he had
no cause of action against the city
for their death.
6 Hughe.; v. Lawrenceburg (Ky.),
37 S. W. Rep. 257; La Clef v. City of
Concordia, 41 Kan. 323, 13 Am. St.
Rep. 385; Lindley v. Pope County
(Iowa), 50 N. W. Rep. 975; Gulliken
v. McDonald, 62 Minn. 278. But see
Shields v. Durham, 118 N. C. 450.
In Virginia incorporated cities and
towns, but not counties, are required
to exercise the same care over pris-
ons as over their streets and sewers,
and -ere liable for negligence. Ed-
wards v. Pocahontas, 47 Fed. Rep.
268.
7 Brown v. Guyandotte (W. Va.),
12 S. E. Rep. 1207, 11 L. R A. 121;
Hughes v. Lawrenceburg (Ky.), 37
S. W. Rep. 257.
8 Alamango v. Albany County, 25
Hun (N. Y.), 551.
9 Nisbit v. Atlanta, 97 Ga. 650. See
Royce v. Salt Lake City (Utah), 49
Pac, Rep. 290.
§§ 316-318.] LIABILITY FOB TOET. 255
personal injuries suffered by an inmate of the city work-house
while engaged in unloading coal, although the city derives a
certain amount of revenue from the employment of the inmates
of the prison.1
§ 316. Care of the indigent — When a public corporation
undertakes to care for the poor, it acts in its governmental ca-
pacity and is not liable for negligence in connection therewith.*
§ 317. Care of school 'buildings. — A public £?*<m-corporation,
acting on behalf of the state and having no separate fund, is
not liable for negligence in the care of the school buildings.*
Thus, such a corporation is not liable for an injury caused by a
broken lightning rod4 or an uncovered cellar.5 School trustees
are state officers and not the agents of the corporation. In
some cases a liability exists on the part of the officers, but
trustees are not liable unless they have some means of provid-
ing funds for keeping the property in repair.6 The question
of the liability of a municipal corporation which owns its school
buildings and has a fund from which to provide for their care
will be considered hereafter.
IE. SOLELY CORPORATE DUTIES.
§318. Eule of 'liability for negligence. — The rule is settled
that when municipal corporations are not in the exercise of
their purely governmental functions, for the sole and immediate
benefit of the public, but are exercising as corporations private
i Cerran v. Boston, 151 Mass. 505, 2 Maximilian v. Mayor, 62 N. Y. 160
8L.R.A.243. In this case the court, (commissioners of charities): Bren-
after stating the rule that municipal nan v. Guardians of Limerick Union,
corporations are not liable in private L. R. 2 C. L. 42. As to negligence in
actions for omissions or neglects in care of poor farm, see Neff v. Wellesly,
the performance of a public duty 148 Mass. 487, 2 L. R. A. 500; Symonds
imposed by law, nor for that of their v. Clay County, 71 I1L 355 (injuries
servant engaged therein, said: "Nor caused by fire in the poor-house),
do we see any reason why the city s Lane v. "Woodbury, 58 Iowa, 462.
should be held responsible because 4 Donovan v. Board of Education,
some revenue is derived from the 85 N. Y. 117.
labor of the inmates. It is required 6 Diehm v. Cincinnati, 25 Ohio St.
by the statute that these inmates 305; Hamm v. New York, 70 N. Y.
should be kept at work, but the in- 460.
stitution is not conducted with a 6 Finch v. Board of Education, 30
view to a pecuniary profit." Ohio St. 37.
286 LIABILITIES OF PUBLIC COKPOEATIONS, [§ 319.
franchise powers and privileges which belong to them for their
immediate corporate benefit, or dealing with property held by
them for their corporate advantage, for a profit, although it
inures ultimately to the benefit of the general public, they
become liable for the negligent exercise of such powers pre-
cisely as are individuals.1
§ 319. As owner of property. — When a corporation is the
owner of private property it is chargeable with the same duties
and obligations in respect thereto-as if it were a private corpora-
tion or individual.2 Thus, if it so manages a market as to render
it a nuisance it is liable in damages to those who are injured there-
by.8 So, if it maintains a farm, in order to more economically
support its poor, it is liable for injuries caused by its negligence
in connection therewith.4 A municipal corporation is not ordi-
narily liable to individuals for the manner in which it cares
for a public building, but if instead of using the building for
public purposes exclusively it rents a portion of it for private
purposes and receives an income therefrom, it is liable for its
negligence in and about the building in the same manner as
though it owned the property in its private corporate capacity.5
A city is responsible in damages for the death of a child caused
by the dangerous condition of a lot owned by the city and but
partially inclosed from the street.6 When a city owns a ceme-
1 Shearman & Redfleld, Neg., § 286; 267, 36 Am. Rep. 308. The injury
Jones, Neg. of Mun. Corp., ch. 5; was caused by a ram kept by the
Dillon, Mun. Corp., § 954; Welsh v. town for breeding purposes, but neg-
Rutland, 56 Vt. 228, 48 Am. Rep. 762. ligently allowed to run at large.
2 Oliver v. Worcester, 103 Mass. 489. Compare Hollenbeck v. Winnebago
And see note to Riddell v. Proprie- Co., 95 111. 148, 35 Am. Rep. 151, and
tors (7 Mass. 169) in 5 Am. Dec. 43; note; French v. Boston, 129 Mass. 592.
Neff v. Wellesley, 148 Mass. 487, 2 • Warden v. New Bedford, 131 Mass.
L. R. A. 500. 23, 41 Am. Rep. 185. Also where a
3 Suffolk v. Parker, 79 Va. 660, 52 building in a public common was
Am. Rep. 640, and cases cited in note; rented. Oliver v. Worcester, 102 Muss.
Weymouth v. New Orleans, 43 La. 489. Degree of care required in con-
Ann. 344. In Barron v. Detroit, 94 struction of a building, see Flori v.
Mich. 601, 19 L. R. A. 452, it was held St. Louis, 69 Mo. 341, 33 Am. Rep. 504.
that where no duty rested upon the 6 The lot was allowed to become
corporation to construct a market, flooded with water in which the
it was liable for the same degree of child was drowned. Pekin v. Mo-
care, in respect to plans and construe- Maben, 154 111. 141, 27 L. R. A. 206.
tion, as private individuals. See Seben v. Chicago, 165 111. 371 ;
4Moulton v. Scarborough, 71 Me. Omaha v. Richards, 49 Neb. 244
§§ 320, 321.] LIABILITY FOE TOUT.
tery and derives an income therefrom, it is liable for damages
caused by a lack of due care in its management.1
§ 320. Illustrations — Wharves. — When a city owns and re-
ceives an income from wharves it must keep them in a condi-
tion suitable for use, and is hence liable for damages resulting
from a want of care in this respect.2 This applies to the ap-
proaches to a dock or pier of which the corporation has charge,1
and the duty is toward all persons approaching the same from
the land or from the water.4
§ 321. Private business enterprises — Gas and water. — When
a municipal corporation engages in a business enterprise or
undertakes to carry on any business or perform any work for
its citizens for compensation, it is held to the same responsibility
for negligence that the law imposes upon private corporations
doing the same or similar work.5 This principle applies where
the corporation maintains a public wash-house and renders it
liable for injuries caused by defective machinery used therein.6
So, if the corporation manufactures and sells gas for a compen-
sation, it is liable in the same manner as a private corporation.7
The weight of authority supports the doctrine that powers con-
ferred upon municipal corporations to establish water and fire
departments are in their nature legislative and governmental.8
It has been said,9 on the authority of an early New York case,10
* Toledo v. Cone, 41 Ohio St. 149. cord, 62 N. H. 8 ; Taintor v. Worcester,
2 Seaman v. New York, 80 N. Y. 123 Mass. 311.
239; Nickerson v. Tirrell, 127 Mass, 9 See Jones, Neg. of Mun. Corp.,
236; Willey v. Alleghany City, 118 sec. 40.
Pa. St. 490. 10 Bailey v. New York, 3 Hill (N. Y.),
3 Barber v. Abendroth, 102 N. Y. 531. These cases proceed upon the
406. principle that "a city or town which
4 Kennedy v. New York, 73 N. Y. is charged with a public duty in con-
365. sideration of valuable franchises is
5 Jones, Neg. of Mun. Corp., sec. 41 ; liable to indemnify an individual
Thompson, Neg., p. 738; City Coun- who suffers any special injury from
cil v. Lombard (Ga.), 25 S. E, Rep. a neglect of the city; and that a
772. city or town which derives any
6 Cowley v. Sunderland, 6 EL & N. emolument from the exercise of pow-
565. ers conferred upon it is liable in like
7 Western Savings Society v. Phil- manner for the negligent or unskil
adelphia, 31 Pa. St 175. ful exercise of the powers by its
8 Springfield F. & M. Co. v. Keese- agents or for the neglect of a duty
ville, 148 N. Y. 46; Edgerly v. Con- which is consequent upon having ex-
288 LIABILITIES OF PUBLIC CORPORATIONS. [§ 321.
that when a municipal corporation maintains water- works and
supplies water for a compensation, it is engaged in a private
enterprise and liable in the same manner as a private corpora-
tion ; but the authority of this case is virtually destroyed by a
recent case l in which it is held that when an incorporated village
avails itself of the permissible legislative authority to construct
and maintain a system of water-works, the power is to be re-
garded as exclusively for public purposes and as belonging to
the corporation in its public political character; that the corpo-
ration was therefore not liable for neglect to exercise reasonable
care and diligence in respect to the maintenance of the work,
and that it was not made a private business by the fact that
water rents were paid to the corporation by the inhabitants.
But it has been held that a municipal corporation is liable
for damages caused by water escaping from the mains or reser-
voirs through the negligence of the city ; and where the injury
was caused by a defective water-box in a street the court said : 2
" The cause of the accident was the improper condition of the
water-box or the negligence of the defendant in maintaining it
in a proper condition. This places the neglect upon the de-
fendant, as the owner and the manager of the aqueduct, and
not as having the supervision and charged with the duty of re-
pairing the highway at that point. For an injury caused by
the failure to repair the highways within the limits the defend-
ant is not liable. But for an injury caused by a failure to prop-
erly maintain its aqueduct it is liable." But this liability can-
not in any case be so extended as to make the corporation liable
for the non-performance or the negligent performance of purely
ercised them; and in such cases the 2 Stock v. Boston, 149 Mass. 410.
officers engaged in the execution of In Hand v. Brookline, 126 Mass. 324,
the powers are to be regarded as the Gray, C. J., said: "If the water es-
agents of the city or town." Aldrich caping from the aqueduct by reason
v. Tripp, 11 R. 1. 141, 23 Am. Rep. 434. of its negligent and imperfect con-
1 Springfield F. & M. Co. v. Keese- struction had injured buildings or
ville, supra. In Smith v. Philadel- property, there could be no doubt of
phia, 81 Pa. St. 38, 22 Am. Rep. 731, the right of the owner to recover
it was held that the amount of water damages against the town. The
rent paid was the measure of dam- fact that the injury occasioned was
ages which could be recovered for within the limits of a high way where
the failure of the city to supply the the person injured has a lawful right
plaintiff with water. No damages to be, affords no grounds for exempt-
can be recovered for being deprived ing the town from liability."
of the water.
§ 321.] LIABILITY FOB TOKT. 289
governmental duties.1 Thus, a city is not bound to protect the
property of its citizens from fire, and it cannot be held in dam-
ages for a failure to supply the necessary water to extinguish
a fire, or for defects of any kind or character in the hydrants
or other machinery which it provides for the purpose of extin-
guishing fires.2 The electrical bureau of a city from which it
receives fees from grants of privileges to private persons is of
such a private nature as to render the city liable for the negli-
gence of its servants.*
i Wilkina v. Rutland, 61 Vt 338. » Bodge v. Philadelphia, 167 Pa. St.
See Grimes v. Keene, 52 N. H. 335. 492.
8 Mendel v. Wheeling, 28 W. Va.
23a
19
CHAPTER XYIL
MUNICIPAL DUTIES RELATING TO GOVERNMENTAL AFFAIRS.
322. General statement.
323. Common-law duty to repair
highways.
324. Conflicting rules — Chartered
municipalities.
325. Liability of counties and
towns.
826. Extent of duty to care for
highways.
327. Lighting the streets.
328. Necessary obstructions.
329. Illustrations.
330. Lack of funds as a defense.
331. Liability for acts of licensees.
332. Care of sidewalks.
333. Obstructions on sidewalk.
334. Ice and snow on highways.
335. Care of bridges.
336. Notice.
§ 322. General statement — While public corporations are
not liable for negligence in connection with the performance of
solely governmental duties, and are liable for negligence in con-
nection with solely municipal duties, more difficult questions are
presented when we come to consider their liability for duties
which are ministerial in their nature but which relate to gov-
ernmental affairs. Illustrations of duties of this character are
found in connection with highways, sewers, bridges and other
public works. The decisions are very conflicting, and the defects
or uncertainties of the common law have in many cases been
cured by statutes.
§323. Common-law duty to repair highways. — The control
of highways rests primarily with the state, but it is almost
universally imposed upon public corporations through which
the highways run. The decisions upon the question of the im-
plied liability of such corporations for injuries resulting from
neglect to perform the duty of keeping the highways in rea-
sonably safe condition are so conflicting that little more can be
done than to classify them. It will be found that the liability
or non-liability is made to depend upon the nature of the cor-
poration or the nature of the duty to be performed, and the
means within the control of the corporation for performing
the duty. The student must in all cases, however, consult the
statutes of the state.
§ 324.]
MUNICIPAL DUTIES.
291
§ 324. Conflicting rules — Chartered municipalities. — In the
England states it is almost universally held that no im-
plied liability attaches to a county, town or even a chartered
municipality for failing to keep the highways in proper condi-
tion. In the leading Massachusetts case,1 the authorities are
elaborately discussed by Chief Justice Gray and the statement
made that such liability is not recognized by the English cases.
This conclusion, however, has been criticised,2 and there are
strong reasons for believing that the common law, as declared
by the English courts, was otherwise. "What may be called
the rule of the case of Kussell v. Men of Devon, as construed by
Chief Justice Gray, has been followed in a number of states.3
But the implied liability of chartered municipalities, although
not generally of public ^^-corporations, for negligence in the
care of highways, is recognized by a strong current of authority
1 Hill v. Boston, 122 Mass. 344, 23
Am. Rep. 332. See the early cases of
Riddell v. Proprietors of Locks, 7
Mass. 169; Mower v. Leicester, 9 Mass.
237. '
2 This doctrine rests upon the au-
thority of Russell v. Men of Devon, 2
T. R 667. The early English author-
ities are reviewed in Jones on Neg.
of Mun. Corp.. §§ 15-19. In Thomas
v. Sorrell, Vaughan, 330, decided in
the latter half of the seventeenth
century, we find the following state-
ment by Chief Justice Vaughan:
"And note, if a man have particular
damage by a foundrous way, he is
generally without remedy, though
the nuisance is to be punished by
the king. The reason is, because a
foundrous way, a decayed bridge or
the like, are commonly to be repaired
by some township, vill, hamlet or
a county, who are not corporate, and
therefore no action lies against them
for a particular damage, but their
neglects are to be presented, and they
punished by fine to the king. But
if a particular person or body corpo-
rate be to repair a certain highway
or portion of it, or a bridge, and a
man is endamaged particularly by
the foundrousness of the way or de-
cay of the bridge, he may have his
action against the person or body
corporate who ought to repair, for
his damage, because he can bring his
action against them; but where there
is no person against whom to bring
his action, it is as if a man be dam-
aged by one that cannot be known."
'Fort Smith v. York, 52 Ark. 84;
Winbigler v. Los Angeles, 45 Cal. 36;
Chope v. Eureka, 78 Cal. 588, 4 L. R
A. 327, two judges dissenting. A
number of authorities are cited in
note to this case. Beardsley v. Hart-
ford, 50 Conn. 529, 47 Am. Dec. 677;
Aldrich v. Gorham, 77 Me. 287; Moore
v. Abbot, 32 Me. 46; Detroit v.
Blackeby, 21 Mich. 84; Eastman r.
Meredith, 36 N. H. 284; Elliott v. Lis-
bon, 57 N. H. 27; Pray v. Jersey City,
32 N. J. Law, 394; Wild v. Paterson,
47 N. J. Law, 406; Wixon v. Newport,
13 R L 454, 43 Am. Rep. 35 (injury
caused by defect in school-house);
Young v. Charleston, 20 S. C. 116, 47
Am. Rep. 827; Wilkins v. Rutland,
61 Vt 336; Welsh v. Rutland, 56 Vt.
228; Cairncross v. Pewaukee, 78 Wis.
66, 10 L. R A. 473; Robinson v. Rohr,
73 Wis. 436, 2 L. R A. 366.
292
LIABILITIES OF PUBLIC COKPOKATIONS.
[§ 325.
in the states outside of New England.1 This doctrine has been
adopted by the supreme court of the United States,2 which
will, however, follow the decisions of the highest court of the
state from which an appeal is taken.3
§ 325. Liability of counties and toivns. — By a very decided
weight of authority, there is no liability on the part of counties
and townships for the care of highways unless such liability is
created by statute.4 In some states there is no liability even
when the duty to repair rests upon such corporation, as this
1 Dillon, Mun. Corp., sec. 1017;
Jones, Neg. of Mun. Corp., sec. 57;
Smoot v. Wetumpka, 24 Ala. 112;
Montgomery v. Wright, 72 Ala. 411;
Denver v. Dunsmore, 7 Colo. 328;
Denver v. Williams, 12 Colo. 475;
Larson v. Grand Forks, 3 Dak. 307;
Anderson v. Wilmington (Del.), 19
AtL Rep. 509; Tallahassee v. For-
tune, 3 Fla. 19, 52 Am. Dec. 358;
Brunswick v. Braxton, 70 Ga. 193;
Anderson v. East, 117 Ind. 126, 2 L. R.
A. 325; Knightstown v. Musgrove,
116 Ind. 121, 9 Am. St. Rep. 827;
Goshen v. England, 119 Ind. 368, 5
L. R. A. 253; Protestant Episcopal
Church v. Anamosa, 76 Iowa, 538, 2 L.
R. A. 606; Chicago v. Keefe, 114 111.
222; Kansas City v. Barmingham, 45
Kan. 212, 25 Pac. Rep. 569; Topeka v.
Tuttle, 5 Kan. 186; Greenwood v.
Louisville, 13 Ky. 226; Cline v. Cres-
cent City R. Co., 41 La. Ann. 1031, 6 So.
Rep. 851; Baltimore v. Marriott, 9
Md. 160; Kennedy v. Cumberland, 65
Md. 514; Welter v. St. Paul, 40 Minn.
460, 12 Am. St. Rep. 752, and note;
Shartle v. Minneapolis, 17 Minn. 308
(Gil. 284); Whitfield v. Meridian, 66
Miss. 570, 4 L. R. A. 834, 14 Am. St.
Rep. 596; Haniford v. Kansas City,
103 Ma 172; Maus v. Springfield, 101
Mo. 613, 20 Am. St. Rep. 634; Sul-
livan v. Helena, 10 Mont. 134, 25 Pac.
Rep. 94; Ponca v. Crawford, 18 Neb.
551, 28 Neb. 762, 8 Am. St. Rep. 144;
Lincoln v. Smith, 29 Neb. 228. This
case is elaborately annotated in 10
L. R. A. 735; McNally v. Cohoes, 127
N. Y. 350; Ehrgott v. New York, 96
N. Y. 264; McDonough v. Virginia
City, '6 Nev. 431; Bunch v. Edenton,
90 N. C. 431; Shelby v. Clagett, 46
Ohio St. 549; Cleveland v. King, 132
U. S. 295; Sheridan v. Salem, 14 Oreg.
328; Farquar v. Roseburg, 18 Oreg.
271, 17 Am. St. Rep. 732, note; Brook-
ville v. Arthurs, 130 Pa. St. 501;
Knoxville v. Bell, 12 Lea (Tenn.), 157;
Galveston v. Posnainsky, 62 Tex. 118;
Levy v. Salt Lake City, 3 Utah, 63:
McCoull v. Manchester, 85 Va. 579,
2 L. R. A. 691; Morgan v. Morley, 1
Wash. 464; Phillips v. Ritchie County,
31 W. Va. 477.
2 District of Columbia v. Wood-
bury, 136 U. S. 450; Barnes v. Dis-
trict of Columbia, 91 U. S. 540.
8 Detroit v. Osborne, 135 U. S. 492.
4 Hill v. Boston, 122 Mass. 344; Tem-
pleton v. Linn County, 22 Oreg. 313,
15 L. R. A. 730; Bates v. Rutland, 62
Vt. 178, 9 L. R. A. 363; Perry v. John,
79 Pa. St. 412; Peters v. Fergus Falls,
35 Minn. 549; Dosdall v. Olmsted Co.,
30 Minn. 96; Young v. Charleston, 20
S. C. 116, 47 Am. Rep. 827; Elliott,
Roads and Streets, p. 42. In Dillon,
Mun. Corp., II, § 997, it is said: "In
the United States there is no common-
law obligation resting upon quasi-
corporations such as counties, town-
ships and New England towns to
repair highways, streets or bridges
within their limits, and they are not
obliged to do so unless by force of
statute."
§ 326.]
MUNICIPAL DUTIES.
293
duty is purely governmental.' The rule of non-liability of coun-
ties and towns is adopted in many states where the decisions
impose the liability upon municipal corporations proper.2 The
distinction between the liability of municipal corporations and
public ^w<m-corporations in this respect is well established, al-
though it rests upon very unsatisfactory reasons.' It is not
universal, however, as some states impose a liability upon coun-
ties4 and even townships,5 especially in connection with the care
of bridges.6 Of course there is no corporate liability when the
duty to care for highways is imposed upon certain officials and
not upon the corporation. Under such circumstances the cor-
poration is not liable for the negligence of the officers unless
made so by statute.7
§ 326. Extent of duty to care for highways. — "Where the law
imposes the duty to care for streets upon municipal corporations,
it is bound to exercise reasonable care to see that they are in
safe condition,8 but it is not an insurer of their safety.9 The
street must be public 10 and under the control of the corporation.11
lAltnow v. Town of Libley, 30
Minn. 186, 44 Am. Rep. 191; Stilling
v. Thorp, 54 Wis. 52a
2 Thompson, Neg., I, p. 615; Dillon,
Mun. Corp., I, § 1023; Jones, Neg.
Mun. Corp., ch. 8. Conflicting author-
ities are cited in a note to Eastman
v. Clackamas County. 32 Fed. Rep. 24
3 Elliott, Roads and Streets, p. 319
and cases cited.
* Shadier v. Blair County. 136 Pa.
St. 488; Anne Arundell County v.
Duckett, 20 Md. 468.
» Dean v. New Milford Tp., 5 W. &
S. (Pa.) 545.
6 Howard County Commissioners
v. Legg, 93 Ind. 523, 47 Am. Rep. 390;
Wilson v. Jefferson County, 13 Iowa,
181. But see Green v. Harrison
County, 61 Iowa, 311.
7 Monk v. New Utrecht, 104 N. Y.
552; Reardon Y. St. Louis County, 36
Mo. 555: Scales v. Chattahoochee
County, 41 Ga. 225.
8 Raymond v. Lowell, 6 Cush. (Mass.)
524, 53 Am. Dec. 57, note. When
the city authorizes a railway com-
pany to occupy a street which is
thereby rendered in an unsafe con-
dition, a person who is injured may
proceed against the city or the rail-
way company. The primary liability
is on the city. Zanesville v. Fannan,
53 Ohio St. 605, 53 Am. St. Rep. 664;
Eyler v. Commissioners, 49 Md. 257, 33
Am. Rep. 249. A railway which has
torn up a street must restore it to
its former condition, and if it fails
to do so it is liable for damages for
injuries. Louisville, etc. R. Co. v.
Pritchard, 131 Ind. 564, 11 Am. St.
Rep. 395, and cases cited in note;
State v. St. Paul, etc. R Co., 35 Minn.
131,59 Am. Rep. 31 a
9 Hunt v. New York, 109 N. Y. 134;
Burns v. Bradford, 137 Pa. St. 361, 11
L. R. A. 726.
10 Carpenter v. Cohoes, 81 N. Y. 21,
37 Am. Rep. 468; Veale v. Boston,
135 Mass. 187.
"Taylor v. Woburn, 130 Mass. 494;
Hart v. Red Cedar, 63 Wis. 634; Will
294: LIABILITIES OF PUBLIC CORPORATIONS. [§ 327.
It must have been accepted by the corporation after being dedi-
cated by the owner of the land.1 If the city has assumed the
care of a street, it is responsible thereafter for its condition, al-
though the street may not be technically under the care of the
city. The entire width of the street must be kept in a safe con-
dition.2 This rule, however, does not apply to a country high-
way, where the duty extends only to the traveled part of the
road.3 There may be instances, however, where the corporation
would be liable for injuries resulting to one traveling outside
of the limits of the highway; as, "where there is no visible
boundary to the line of the street and a portion of the roadway
traveled on is so near the actual line (although really outside
thereof) as to induce the belief in any one exercising reasonable
care that he is within such line." * That part of the road which
is kept open to travel must be kept in a reasonable safe condi-
tion,5 although in order to do so it may be necessary to protect
the public from danger by obstructions or excavations on ad-
joining land.6 It is for the jury to determine whether, under
the circumstances of the particular case, the obstruction was
of such a nature that the highway was not in a suitable state
of repair, and whether the corporation was negligent in not re-
moving the obstruction.7
§ 327. Lighting the streets. — Where a city is required by a
statute or by its charter to light its streets, it is, of course^ liable
v. Village of Mendon HVIich.), 66 N. adjacent to the sidewalk. Wiggin
W. Re p. 58; City of Chadronv. Glover, v. St. Louis, 135 Mo. 558. But there
43 Neb. 733, 62 N. W. Rep. 62. is no liability for injuries suffered by
1 Ivory v. Deerpark, 116 N. Y. 476; one who goes outside of an unfenced
Estelle v. Lake Crystal, 27 Minn. 243. highway when the whole of the
2Monongahela City v. Fischer, 111 highway is in safe condition. Mc-
Pa. St. 9. The corporation must Hugh v. St. Paul (Minn.), 70 N. W.
keep the streets in the outskirts of Rep. 5.
the city clear for such a width as 6 Aston v. Newton, 134 Mass. 507;
the public necessity and convenience Stafford v. Oskaloosa, 57 Iowa, 748.
requires. Village of Rankin v. Smith, 6 Rooney v. Randolph, 128 Mass. 580.
63 111. App. 522. ^Hubbard v- Concord, 35 N. H. 52,
'Perkins v. Fayette, 68 Me. 152; 69 Am. Dec. 520; Seeley v. Litch-
Fitzgerald v. Berlin, 64 Wis. 203; field, 49 Conn. 134, 44 Am. Rep. 213;
Campbell v. Race, 7 Gush. 408. Michigan City v. Boeckling, 123
<Jewhurst v. Syracuse, 108 N. Y. Ind. 39; Goodfellow v. New York,
303. A city must use reasonable care 100 N. Y. 15; Foxworthy v. Hastings,
to prevent pedestrians from falling 25 Neb. 133; Hill v. Fond du Lac, 50
into excavations on private property Wis. 242.
§ 328.] MUNICIPAL DUTIES. 295
for injuries caused by its neglect to do so; but wnere no such
duty is imposed on it by the legislature, it is not liable for
omitting to light the streets,1 although the fact that a street is
not lighted may be material upon the question of negligence
•where it was partially obstructed or out of repair.2 It is the
duty, however, of the corporation to place lights near obstruc-
tions or excavations temporarily placed in the streets.8
§ 328. Necessary obstructions. — There are many obstructions
which may be placed or allowed to be placed in a public street
which do not constitute defects or nuisances. If they do not
unnecessarily interfere with the primary purpose for which
streets are dedicated, they do not render the way unsafe in the
eye of the law. Thus hydrants,4 hitch ing-posts,5 door-steps*
and stepping-stones7 are not in themselves objects which render
a street unsafe. The public must adapt itself to the fact of their
existence, and if they are properly located and cared for the city
is not liable for injuries occasioned by them. The same rule
applies to car tracks and merchandise and building material
temporarily placed in a street.8 They constitute obstructions,
but they are necessary, and when properly guarded9 may be
allowed to remain in a street for a reasonable time10 with-
out rendering the municipality liable for injuries occasioned
thereby.11 But unnecessary obstructions must not be allowed
1 Dillon, Mun. Corp., II, § 1010; 8 Callanan v. Oilman, 107 N. Y. 360.
Freeport v. Isbell. 83 111. 440: Gould 9 Bauer v. Rochester, 35 N. Y. St.
v. Topeka, 32 Kan. 485; Cleveland v. Rep. 959; Olson v. Chippewa Falls, 71
King, 132 U. S. 295; McHugh v. Wis. 558 ; Wilson v. White, 71 Ga. 506,
St. Paul (Minn.), 70 N. W, Rep. 5. 51 Am. Rep. 269.
2 Elliott, Roads and Streets, p. 457; ^PettengiU v. Yonkers, 116 N. Y.
Lyon v. Cambridge, 136 Mass. 419. 558.
'McCoull v. Manchester, 85 Va. "Cleveland v. King, 132 U. S. 295;
579; Wilson v. White, 71 Ga. 506, 51 Nolan v. King, 97 N. Y. 565; Klatt v.
Am. Rep. 269. In Sinclair v. Balti- Milwaukee, 53 Wis. 196. A corpora-
more, 59 Md. 592, it was held that tion is not relieved from liability by
the city need not place lights upon the fact that the person who was al-
building material which had been lowed to place the obstruction in the
left in the street. street agreed to protect the public.
4 Ring v. Cohoes, 77 N. Y. 83. Cleveland v. King, supra; Farquar v.
5 Macomber v. Taunton, 100 Mass. Roseberg, 18 Oreg. 271, 17 Am. St.
255. Rep. 272; Boucher v. New Haven, 40
8 Cushing v. Boston, 128 Mass. 330. Conn. 456.
7 Kingston v. Dubois, 102 N. Y. 219.
296
LIABILITIES OF PUBLIC CORPORATIONS.
[§ 329.
to remain in the street, as the city must "keep all streets, side-
walks and crossings in a reasonably safe condition and free from
all unnecessary and dangerous obstruction, so as not to endan-
ger the persons of those lawfully using the same."1 The size
or location of the object is immaterial if it renders the street
unsafe.2
§ 329. Illustrations. — Municipal corporations have been held
liable for injuries occasioned by negligently leaving a road
scraper in a street,3 wires across a highway,4 mud piled in a
street and allowed to freeze,8 projecting nails in a plank street,6
a projecting water plug,7 a wagon standing in the street under
a license,8 unguarded holes or excavations,9 no matter by whom
made,18 a hole caused by the breaking of a water pipe,11 an open
culvert,12 slippery objects under certain circumstances,13 excava-
tions and embankments adjoining the street which render it
unsafe,14 a collision caused by the narrowing of a street by an
i Glantz v. Bend, 106 Ind. 305; Vil-
lage of Ponca v. Crawford, 23 Neb.
662, 8 Am. St. Rep. 144, note.
2McCool v. Grand Rapids, 58 Mich.
41.
8 Whitney v. Town of Ticonderoga,
127 N. Y. 40, 27 N. E. Rep. 403.
4 Hayes v. Hyde Park, 153 Mass. 514,
12 L. R. A. 249.
5 Champaign v. Jones, 132 111. 304.
6 Michigan City v. Boeckling, 122
Ind. 39.
7 Scranton v. Catterson, 94 Pa. St.
202.
8 Cohen v. New York, 113 N. Y. 532.
In this case the court said: "We do
not say that this principle of respon-
sibility would render the city liable
in every case of a mistaken exercise
of power authorizing the use or oc-
cupancy of a public street by an in-
dividual. We confine ourselves to
the decision of this case, and we
simply say that when the city, with-
out the pretense of authority, and in
direct violation of a statute, assumes
to grant to a private individual the
right to obstruct the public highway
while in the transaction of his pri-
vate business, and for such privilege
takes compensation, it must be re-
garded as itself maintaining a nui-
sance so long as the obstruction is
continued by reason of and under
such license."
9 Barr v. Kansas City, 105 Mo. 550.
1° Savannah v. Donnelly, 71 Ga. 258.
11 Hopkins v. Ogden City, 5 Utah,
390, 16 Pac. Rep. 596.
12 O'Gorrann v. Morris, 26 Minn. 267.
is Cromarty v. Boston, 127 Mass. 329,
34 Am. Rep. 381.
14 Barnes v. Chicopee, 138 Mass. 67,
52 Am. Rep. 259. In Puffer v. Orange,
122 Mass. 389, 23 Am. Rep. 368, the
court said: "A town is bound to
erect barriers or railings where a
dangerous place is in such close
proximity to the highway as to
make traveling on the highway un-
safe. But it is not bound to do so
to prevent travelers from straying
from the highway, although there
is a dangerous place at some dis-
tance from the highway which they
may reach by so straying." Hudson
v. Marlborough, 154 Mass. 218, 28 N.
E. Rep. 147.
§ 329.]
MUNICIPAL DUTIES.
297
embankment.1 Obstructions -which have a natural tendency
to frighten horses being driven along the highway are gener-
ally viewed as defects, and the corporation held liable for in-
juries resulting therefrom.2 As a general rule no distinction
is made between cases where the obstruction or defect was due
to the act of the corporation or the act of private individuals.
The right of action against the city rests upon the duty of the
city to keep the streets in a reasonably safe condition,3 and this
duty cannot be .shifted upon the property owners.
1 Popper v. Wheatland, 59 Wis. 623;
Flagg v. Hudson, 142 Mass. 280.
2 Morse v. Richmond, 41 Vt 435, 98
Am. Dec. 600 (statutory duty — see
an elaborate note to this case); Dim-
ock T. Suffield, 30 Coiin. 129; Rush-
ville v. Adams, 107 Ind. 475, 57 Am.
Rep. 124; Cairncross v. Pewaukee, 78
Wis. 66, 10 L. R. A. 473; Campbell
v. Stillwater, 32 Minn. 303; Thomp-
son, Neg., § 1011; Shearman & Red.
Neg., § 169. The city is liable if the
object has a natural tendency to
frighten horses of ordinary gentle-
ness and training. Piollet v. Sim-
mers, 106 Pa. St. 95, 51 Am. Rep. 496.
For contrary decisions, see Bowes
v. Boston, 155 Mass. 344, 15 L. R. A.
365, and Agnew v. Corunna, 55 Midi.
428, 54 Am. Rep. 388 (boulders in
street). A steam-engine, as a means
of locomotion in a highway, is not
necessarily a nuisance. Where the
use of one frightens horses the right
of action for injuries will depend
upon the question of negligence.
Macomber v. Nichols, 34 Mich. 212,
2i A-m. Rep. 522. But see Stanley v.
D&renport, 54 Iowa, 4C3, 37 Am. Rep.
216. In Omaha v. Richards, 49 Neb.
244, the court said: "A case quite
analogous in principle to the one at
bar is City of Chicago v. Hesing, 83
111. 204. That was an action to re-
cover damages for the death of a
child about four years old." The third
paragraph of the syllabus reads thus:
" It is gross negligence on the part
of the city to leave a ditch filled with
water about five feet deep in a pub-
lic and frequented street bordering
on a sidewalk without any guards to
prevent children from falling into
the same, and if a child is drowned
by falling into the same the city will
be liable." The same principle was
held and tried in the Village of Car-
terville v. Cook, 129 III 152; Brennan
v. City of St. Louis, 92 Mo. 482; City
of Indianapolis v. Emmelman, 108
Ind. 530; Nichols v. City of St Paul,
44 Minn. 494; Hawley v. City of At-
lantic, 92 Iowa, 172, 60 N. W. Rep.
519; Reed v. City of Madison, 83
Wis. 171; Gibson v. Huntington, 38
W. Va. 177. See, also, for a similar
case, Seben v. City of Chicago, 165
111. 371. In Kies v. Erie, 169 Pa. St.
598, it appears that the plaintiff was
injured by the large doors of a fire-
house suddenly opening out, and the
court said : " If the operation of these
doors with reasonable care would
have provided against danger and
accident to the passers-by, the city is
liable. If the necessary and natural
and probable operation of these doors
was dangerous, even though accom-
panied by the use of ordinary care
on the part of the employees, the
city is liable for such results."
3 But see Baltimore v. O'Donnell,
54 Md. 110.
298
LIABILITIES OF PUBLIC COEPOKATIONS. [§§ 330, 331.
§ 330. Lack of funds as a defense. — A public corporation is
not liable for damages caused by its failure to repair a street
where it has neither the means nor the corporate power to pro-
cure the means necessary for making such repairs;1 but "want
of funds to repair a street will not excuse a city for its neglect
in regard to them unless it has exhausted all the means at its
command to raise funds or to make the repairs and unless the
accident could not have been prevented by guards or signs." 2
If it has not the means of keeping the street in proper condi-
tion, it should either close the street or protect the public by
means of guards or other proper and necessary signs.3
§ 331. Liability for acts of licensees. — The rule is that a
municipal corporation is not liable for injuries resulting from
the acts of its licensees unless the license is granted without
authority4 or the acts so licensed are admittedly dangerous.5
The liability in such cases must be distinguished from the mere
failure to prevent the doing of an act which is an exercise of
1 Hines v. Lockport, 50 N. Y. 236;
Weed v. Ballston Spa, 76 N, Y. 329;
Ivory v. Deerpark, 116 N. Y. 476;
Whitfield v. Meridian, 66 Miss. 570,
14 Am. St. Rep. 596. The defense
of want of means to make repairs
must be pleaded. Netzer v. Crooks-
ton, 59 Minn. 244.
2 Jones, Neg. of Mun. Corp., sec.
75; Dillon, Mun. Corp., II, § 1017;
Elliott, Roads and Streets, p. 445;
Delger v. St. Paul, 14 Fed. Rep. 567;
Birmingham v. Lewis, 93 Ala. 852, 9
So. Rep. 243; Lord v. Mobile (Ala.),
21 So. Rep. 366.
3 Monk v. New Utrecht, 104 N. Y.
552. Knowledge that there is no
money in the treasury by one who
is hurt by a defective sidewalk is
not notice of the defects. Village of
Ponca v. Crawford, 23 Neb. 662, 8
Am. St. Rep. 144.
« Cohen v. New York, 113 N. Y. 532.
8 As by authorizing a lunatic to
sell gunpowder. Cole v. Nashville, 4
Sneed (Tenn.), 162. In Wheeler v.
Plymouth, 116 Ind. 158, 9 Am. St.
Rep. 837, 18 N. E. Rep. 532, the court
said: "It is quite well settled that a
municipal corporation is not liable
for the acts of its licensees, unless it
is shown that they were authorized
to perform an act dangerous in it-
self." The cases cannot be recon-
ciled, but the test seems to be, Did
the city merely fail to prohibit the
act by appropriate legislation or for
the time being suspend its legisla-
tion, and thus, by failing to prohibit,
consent (Lincoln v. Boston, 148 Mass.
578, 3 L. R. A. 257), or did it affirma-
tively authorize the act? If the au-
thority given is in general terms, it
will be presumed that the licensee
will exercise due care and the city
will not be responsible for his negli-
gence (Little v.Madison, 49 Wis. 605);
but if the city licenses a dangerous
act, or acts beyond its general au-
thority in licensing an act which it
has no power to license, it is liable
for damages resulting therefrom.
§ 332.] MUNICIPAL DUTIES. 299
legislative discretion.1 The corporation may exercise its dis-
cretion on the question of forbidding certain conduct without
being liable for damages which would have been avoided had
the conduct been forbidden.2 Thus, the corporation is not lia-
ble because it fails to prevent persons from coasting on streets,
although such a use of the streets is manifestly dangerous to
the public.3 But a city may be liable if, without authority, it
allows a wagon to stand in the street 4 or a steam motor to use
the street.5
§ 332. Care of sideivalks. — A municipal corporation is liable
for injuries resulting from the improper condition of a side-
walk which is under its care,6 although it was constructed by
a private corporation or individual.7 It is its duty to keep the
sidewalks in a reasonably safe condition both day and night
for the uses for which they are designed.8 This duty exists in
the case of all sidewalks under the control of the city, although
what would amount to negligence in one locality might be
proper care in another.9 The liability is the same in respect
to walks built by private persons or situated on private prop-
erty, if they are under the care and control of the corporation.10
This duty cannot be imposed upon the lot owner in such a
manner as to relieve the corporation from its responsibility.11
1 Carthage v. Frederick, 122 N. Y. Atl. Rep. 883; Salisbury v. Ithaca, 94
268, 19 Am. St. Rep. 490. N. Y. 27.
2 Little v. Madison, 49 Wis. 605. 8 City v. Nash (Neb.), 69 N. W. Rep.
8 Burf ord v. Grand Rapids, 53 Mich. 964
98, 51 Am. Rep. 105 (under permis- 9 South Omaha v. Powell (Neb.), 70
sion of an ordinance); Lafayette v. N. W. Rep. 391; Waggener v. Point
Timberlake, 88 Ind. 330; Schultz v. Pleasant, 42 W. Va. 798; City of
Milwaukee, 49 Wis. 254, 35 Am. Rep. Flora v. Naney, 136 111. 45, 26 N. E.
782; Calwell v. Boone, 51 Iowa, 687, Rep. 645; Fulliam v. Muscatine, 70
33 Am. Rep. 154; Steele v. Boston, Iowa, 436, 30 N. W. Rep. 861.
123 Mass. 583; Wilmington v. Van 10 Graham v. Albert Lea, 48 Minn.
Degrift (Del.), 29 AtL Rep. 1047, 25 201, 50 N. W. Rep. 1108; Foxworthy
L. R A 538. v. Hastings, 31 Neb. 825, 48 N. W.
* Cohen v. New York, 113 N. Y. 532. Rep. 901 ; Mansfield v. Moore, 124 111.
'Stanley v. Davenport, 54 Iowa, 133; Jewhurst v. Syracuse, 108 N. Y.
463, 37 Am. Rep. 216. 303.
6 Roe v. Kansas City, 100 Ma 190. " Betz v. Limingi, 46 La. Ann. 1113,
As to liability for defective con- 46 Am. St. Rep. 344; Rochester v.
struction or the adoption of a dan- Campbell, 123 N. Y. 405; Brookville
gerous plan, see infra, § 340. v. Arthurs, 130 Pa. St. 501 ; Keokuk v.
TKutchings v. Sullivan (Me.), 37 Independent District, 53 Iowa, 352,
300 LIABILITIES OF PUBLIC CORPORATIONS. [§ 332.
By the weight of authority the imposition of the duty to care
for the sidewalk upon the owner of adjoining property does
not render the lot owner liable to individuals or relieve the
municipality.1 The owner is, of course, liable for his own acts
of negligence, as where he places an obstruction in the street; 2
but the mere fact that he is so liable, or that he is liable over
to the corporation,3 does not relieve the corporation from its
liability to persons injured by reason of the street being in an
unsafe condition.4 Some courts hold that a statute which im-
poses the duty of keeping the sidewalk in repair upon the own-
ers of adjoining property is unconstitutional.5 "Where a charter
made it the duty of the lot owner to construct the sidewalk in
front of his property and to keep the same in repair, and pro-
vided that if he failed to do so the city might do the work and
charge the expense against the property, and that when an in-
jury resulted from any defect in a sidewalk which was due to
the wrong, default or negligence of any person other than the
city such person should be primarily liable for the damages, it
was held that the owner was not liable for a mere failure to
keep the sidewalk in repair.6 Reasonable care requires that
the corporation shall make such inspection of the sidewalks
36 Am. Rep. 226; Noonan v. Still- Mun. Corp., I, §§ 1035, 1037. The
water, 33 Minn. 198; Davenport v. crosswalks are a part of the side-
Ruckman, 37 N. Y. 568. The mere walk. Goodfellow v. New York, 100
fact that the charter made it the N. Y. 15. See under statute, Hoyt v.
duty of the city to repair the side- Danbury, 69 Conn. 341.
walks at the expense of the lot owner 2 Rochester v. Campbell, 123 N. Y.
does not make the owner primarily 405, 10 L. R. A. 393; Calder v. Smalley,
liable for injuries caused by negli- 66 Iowa, 219.
gence. Fife v. Oshkosh, 89 Wis. 540; 8 City of Pawtucket v. Bray (R. I.,,
Sommers v. Marshfield, 90 Wis. 59. 37 Atl. Rep. 1.
No obligation to repair streets or 4 Noonan v. Stillwater, 83 Minn,
sidewalks rests upon the owners of 198; Kellogg v. Jauesville, 34 Minn,
abutting property at common law. 132. Joint action may be maintained
Rochester v. Campbell, 123 N. Y. 405, against city or lot owner, where
20 Am. St. Rep. 760, and note. there is a neglect to perform a com-
!Lord v. Mobile (Ala.), 21 So. Rep. mon duty. Peoria v. Simpson, 110
366; Flynn v. Canton Co., 40 Md. 111. 294, 51 Am. Rep. 683; Stebbins v.
321, 17 Am. Rep. 603; Zanesville v. Keene Township, 55 Mich. 552; Mo
Fannan, 53 Ohio St. 605, 53 Am. St. Connell v. Osage City, SO Iowa, 293.
Rep. 664 (liability of city and railway 8 Noonan v. Stillwater, supra.
company); Sioux City v. Weare, 59 6Selleck v. Tallman, 93 Wis. 246;
Iowa, 95; Westfield v. Mayo, 122 Toutloff v. Green Bay, 91 Wis. 4'JO.
Mass. 100, 23 Am. Rep. 292; Dillon.
§ 333.] MUNICIPAL DUTIES. 301
from time to time as is reasonably necessary to guard against
the results of the natural decay of the material of which they
are constructed.1 The duty to keep the sidewalks in a reason-
ably safe condition is at common law owing to every person
who uses the streets for the ordinary purposes for which they
are designed.2
§ 333. Obstructions on sideivalks. — A corporation must ex-
ercise reasonable care to protect the public from being injured
by obstructions which are necessarily and properly placed on
sidewalks and in the streets. The owner of land abutting upon
a public street is permitted to encroach on the primary right
of the public to a limited extent and for a temporary purpose,
owing to the necessities of the case. Two facts must, however,
exist to render the encroachment lawful : the obstruction must
be reasonably necessary for the transaction of business and it
must not unnecessarily interfere with the rights of the public.8
The corporation must keep the streets as safe as practicable
under such circumstances.4 The corporation is not an insurer
against all defects in its sidewalks.5 Thus, stepping-stones for
persons alighting from carriages,6 or slight unevenness or de-
pression in the sidewalks,7 are not defects; but loose planks 8
and large holes 9 are such defects as will render the city liable
for damages occasioned thereby. The city must provide rea-
1 Kellogg v. Janesville, 34 Minn. The question is discussed in Duffy
132; Peoria v. Simpson, 110 111. 294, v. Dubuque, 63 Iowa, 171, and in
51 Am. Rep. 683; McConnell v. Osage Langlois v. Cohoes, 58 Hun (N. Y.),
City, 80 Iowa, 293 ; Stebbins v. Keene 226.
Township, 55 Mich. 552. 3Flynn v. Taylor, 127 N. Y. 596;
2 Duffy v. Dubuque, 63 Iowa, 171; Callanan v. Oilman, 107 N. Y. 360.
Maguire v. Spence, 91 N. Y. 302. See District of Columbia v. "Wood-
When the liability is the creature of bury, 136 U. S. 450.
statute it extends only to travelers; 4 Nolan v. King, 97 N. Y. 565.
but the word is given a liberal con- * Burns v. Bradford City, 137 Pa. St.
struction and it is held to include 361, 11 L. R. A. 726.
every one who has occasion to pass 6Dubois v. Kingston, 102 N. Y. 219.
over the highway for any purpose of 7 Witham v. Portland, 72 Me. 539;
business, convenience or pleasure, Childrey v. Huntington, 34 W. Va.
It must be kept " safe and convenient 459, 11 L. R. A. 313.
for all persons having occasion to 8Moon v. Ionia, 81 Mich. 535, 46
pass over it while engaged in any of N. W. Rep. 25; Armstrong v. Ackley,
the pursuits or duties of life." Blod- 71 Iowa, 76.
gett v. Boston, 8 Allen, 237; Reed v. »Tice v. Bay City, 84 Mich. 461,
Madison, 83 Wis. 171, 17 L. R. A. 733. 47 N. W. Rep. 1062.
302
LIABILITIES OF PUBLIC COEPOKATIONS.
[§ 334.
sonable guards and railings to prevent people from being in-
jured by cellar-ways and area-ways entered from the street.1
It must also protect them from dangers arising from structures
overhead, such as awnings,2 poles,3 sign-boards,4 and the like.
§ 334. Ice and snow on highways. — The liability for dam-
ages resulting from the presence of ice and snow in a public
street is governed very much by locality. It is well settled,
however, that in the absence of any structural defect mere
slipperiness is not such a defect in a street as will render
the municipality liable.8 In some parts of the country it is
held that the corporation must keep its sidewalks free from 'ice
and snow, while in other localities, where the climate is such
that this would be imposing an undue burden upon the mu-
nicipality, it is held that no liability exists unless the ice or
snow is allowed to accumulate in ridges or inequalities so as
to form an obstruction in the street.6 The duty is not affected
by the fact that the ice is in part the result of artificial causes,
as water escaping from a hose used by firemen.7 The liability
iMaguirev. Spence, 91 N. Y. 303;
Day v. Mt. Pleasant, 70 Iowa, 193.
But see Beardsley v. Hartford, 50
Conn. 529, 47 Am. Rep. 677; Elliott,
Roads and Streets, p. 453.
2Bohen v. Waseca, 32 Minn. 176,
50 Am. Rep. 564; Bieling v. Brook-
lyn, 120 N. Y. 98.
8Norristown v. Moyer, 67 Pa. St.
355.
4 Langan v. Atchison, 35 Kan. 318,
57 Am. Rep. 165; Kutz v. Troy, 104
N. Y. 344. As to the distinction be-
tween the liability in case of objects
attached to and forming a part of
the sidewalk and other overhanging
objects, see West v. Lynn, 110 Masa
514.
5 Chicago v. McGiven, 78 111. 347;
Harrington v. Buffalo, 121 N. Y. 147;
Bell v. York, 31 Neb. 842, 48 N. W.
Rep. 878; Broburg v. Des Moines, 63
Iowa, 523, 19 N. W. Rep. 340, 50 Am.
Rep. 756; Grossenbach v. Milwau-
kee, 65 Wis. 31, 56 Am. Rep. 614;
Rolf v. Greenville, 102 Mich. 544
6 Henkes v. Minneapolis, 42 Minn.
530; Stanke v. St. Paul (Minn.), 73
N. W. Rep. 629; Cook v. Milwaukee,
27 Wis. 191; Kinney v. Troy, 108
N. Y. 567; Hausmann v. Madison, 85
Wis. 187, 21 L. R. A. 263, annotated;
Huston v. Council Bluffs (Iowa), 69
N. W. Rep. 1130, 36 L. R. A. 211;
Paulson v. Pelican, 79 Wis. 445, 48
N. W. Rep. 715, and cases cited in
preceding note. An accumulation
of snow or ice on a sidewalk, allowed
to remain after actual notice of the
danger, will render the city liable for
damages caused thereby. Virginia
v. Plummer, 65 111. App. 419. Piling
snow on both sides of a railway
track is negligence. Ellis v. Lewis-
ton, 89 Me. 60. But see Hutchinson
v. Ypsilanti, 103 Mich. 12, 61 N. W.
Rep. 279. Liable for injuries caused
by snow on sidewalk Fife v. Osh-
kosb, 89 Wis. 540.
7 Henkes v. Minneapolis, 42 Minn.
530.
§ 335.]
MUNICIPAL DUTIES.
303
has been held to exist where ice is formed on a sloping side-
walk J or where it is caused by an accumulation of water due
to a structural defect in the walk.2 The owner of the adjoin-
ing property may be required to remove snow and ice from
the sidewalk under a penalty,* but cannot be made liable to
individuals for. injuries received by reason of this neglect to
comply with the requirements of such an ordinance.4 The
fact that a country road was impassable for a period of three
months because of snow will not render the town liable for in-
juries received by a person tr\7ing to pass over the road.5
There is no liability for a defect in a road made by travelers
around a snowdrift.6 A person who attempts to pass over a
sidewalk which is dangerous by reason of ice, when he might
avoid the same by passing around it, is guilty of contributory
negligence.7
§ 335. Care of bridges. — Bridges are ordinarily a part of the
highway,8 and it is for the corporation to decide whether or
not they shall be built.9 Where, however, a public corporation
iPinkham v. Topsfield, 104 Mass.
78. See Nichols v. St. Paul, 44 Minn.
494 (sloping street).
SGillrie v. Lockport, 122 N. Y. 403.
3 Carthage v. Frederick, 122 N. Y.
269, 19 Am. St. Rep. 490, 10 L. R A.
178; Paxson v. Sweet, 13 N. J. L.
196. But see Chicago v. O'Brien, 111
III 532, 53 Am. Rep. 640, and § 246,
supra. In City of Port Huron v.
Jenkinson, 77 Mich. 414, 18 Am. St.
Rep. 409, an ordinance which made
it a crime for the owner of a lot to
neglect to build a sidewalk in front
of the lot, without reference to his
ability to do so, was held invalid.
4 Rochester v. Campbell, 123 N. Y.
405; Heeney v. Sprague, 11 R L
456, 23 Am. Rep. 502, and the elabo-
rate decision in Flynn v. Canton
Co., 40 Md. 312, 17 Am. Rep. 60& As
to civil liability created by viola-
tion of one ordinance, see Hartford
v. Talcott, 48 Conn. 525.
5 Burr v. Plymouth, 48 Conn. 460.
6 Bogie v. Waupun, 75 Wis. 1.
7 Erie v. Magill, 101 Pa. St. 616, 47
Am. Rep. 739, annotated; Quincy v.
Barker, 81 I1L 300; Belton v. Boston,
54 N. Y. 245; Shaefler v. Sandusky,
33 Ohio St 246.
SQoshen v. Myers, 119 Ind. 196.
" In this country the power of mu-
nicipal corporations to build them
and their authority over them are
wholly statutory, and their duties in
respect to them are either prescribed
by statute or spring from their
powers. There is no common-law re-
sponsibility on municipal corpora-
tions in respect to the repair of
bridges within their limits; but
where bridges are part of the streets
and built by the municipal authori-
ties under powers given to them by
the legislature, they are liable for de-
fects therein on the same principles
and to the same extent as for defect-
ive streets." Dillon, Mun. Corp., H,
§728.
9Quinton v. Burton, 61 Iowa, 471;
Orth v. Milwaukee, 59 Wis. 336.
30i LIABILITIES OF PUBLIC CORPORATIONS. [§ 336.
is required by a .mandatory statute to construct a bridge, the
duty may be compelled by mandamus^ The corporation must
exercise reasonable care daring the construction of the bridge
by placing proper guards and railings in the streets and around
the approaches.2 The location of a bridge is a governmental act,
but a corporation has been held liable for locating a bridge
so as to injure adjoining property, on the theory that the gov-
ernment has no right to undertake the work in a negligent man-
ner.3 Daring the process of construction the corporation is
under the same obligation to exercise reasonable care as an in-
dividual under the same circumstances.4 All public works must
be so constructed as to withstand the ordinary storms of the
locality,5 and as to aiford a reasonably safe passage-way for the
public, using it in the ordinary manner.6 But provision need
not be made for supporting extraordinary weights.7 It must
be so protected by proper guards and railings as to avoid injury
to persons using the bridge in the exercise of ordinary care ; 8
that is, the corporation is under obligation to construct and
maintain a reasonably safe structure.9
§ 336. Notice. — Before a municipal corporation can be held
liable for an injury resulting from a defective street which
was not caused by its act or with its permission,10 it must appear
that it had actual or constructive u notice of such defect in time
1 State v. Northumberland, 46 N. H. elers imposed by statute, the side-
156. rails need not be sufficient to sustain
2 Mullen v. Rutland, 55 Vt. 77; The the weight of one who leans upon
Modock, 26 Fed. Rep. 718. them; they are supposed to be for
3 Hartford County v. Wise, 75 Md. the purpose of warning only. See
38. Stickney v. Salem, 3 Allen, 374. Con-
4 Perry v. Worcester, 6 Gray, 544, tra, Langlois v. Cohoes, 58 Hun, 226.
66 Am. Dec. 431; Doherty v. Brain- 9 Jordan v. Hannibal, 87 Mo. 673;
tree, 148 Mass. 495. Ferguson v. Davis County, 57 Iowa,
» Allen v. Chippewa Falls, 52 Wis. 601.
430, 38 Am. Rep. 748; Chicago, etc. 10 If the defective condition of the
Co. v. Sawyer, 69 111. 285, 18 Am. Rep. street is due to the negligence of the
618, note. corporation, notice is not essential.
6 Wabash v. Pearson, 120 Ind. 426; A city must take notice of the tend-
Wilson v. Granby, 47 Conn. 59. ency of wood to decay. Furnell v.
7 Monongahela Bridge Co. v. Pitts- St. Paul, 20 Minn. 117 (Gil. 101);
burgh, 114 Pa. St. 478; Moore v. Ken- Springfield v. Le Claire, 49 111. 476;
ockee Tp., 75 Mich. 332. Barton v. Syracuse, 36 N. Y. 54
8Corbalis v. Newberry Tp., 132 Pa. u The fact that a defect in a side-
St. 9. Where the liability is to tra v- walk on a prominent thoroughfare
§ 336.]
MU^CIPAL DUTIES.
305
to have repaired it or protected passers-by from injury.1 But
the corporation is chargeable with knowledge of a condition of
its streets which it is its duty to possess,2 and it is sufficient to
establish the existence of facts from which notice will be in-
ferred or circumstances from which the defect might have been
known.*
has existed for several months is
constructive notice of its condition.
Moore v. Minneapolis, 19 Minn. 300
(GiL 259). Evidence that the side-
walk in or near the place of the ac-
cident was in generally bad condition
is competent on the issue of notice.
Gude v. Mankato, 30 Minn. 256; Ster-
ling v. Merrill, 124 IlL 522; Cook v.
Anamosa, 66 Iowa, 427.
1 Moore v. Minneapolis, 19 Minn.
300 (GiL 258); Burleson v. Beading,
20
117 Mich. 115, 68 N. W. Rep. 294;
L'Herault v. Minneapolis (Minn.), 73
N. W. Rep. 73; Jones v. Clinton
(Iowa), 69 N. W. Rep. 418; Snyder v.
Albion (Mich.), 71 N. W. Rep. 475.
2Carstesen v. Town of Stratford,
67 Conn. 428.
'Lincoln v. Smith, 28 Neb. 762;
Gill vie v. Lockport, 122 N. Y. 403;
Lorence v. Ellensburg, 13 Wash. 341,
52 Am. St. Rep, 42.
CHAPTER XVIII.
THE CONSTRUCTION AND CARE OF PUBLIC WORKS.
§ 337. Care of public property.
338. Surface waters.
339. Drainage and sewers.
340. The plan of a public work.
§ 341. Direct injury to property.
342. The construction and care of
sew era
343. Consequential damages.
§337. Care of public property. — The rule of non-liability of
a municipal corporation for negligence in the care of public
buildings is thus stated by Mr. Justice Morton :l "A city is not
liable to a private citizen for an injury caused by any defect
or want of repair in a city or town hall or other public build-
ing erected and used solely for municipal purposes or for neg-
ligence of its agents in the management of such buildings. This
is because it is not liable to private actions for omission or neg-
lect to perform a corporate duty imposed by general laws upon
all cities and towns alike from the performance of which it
derives no compensation. But when a city or town does not
devote such building exclusively to municipal uses, but lets it
or a part of it for its own advantage and emolument, by receiv-
ing rents or otherwise, it is liable while it is so let in the same
manner as a private owner would be." This rule prevails in
the New England states generally, and exempts counties from
liability for injuries caused by neglect to keep the public build-
ings in repair.2 The liability has, however, been imposed by
statute in many states, and even in the absence of statute
the authorities are not uniform. Thus, a city has been held
liable for injuries caused by the negligent condition of the court-
house,3 defective plumbing in a school building,4 an open cellar
iWorden v. New Bedford, 131 Am. Rep. 236; Downing v. Mason
Mass. 23. See, also, Eastman v. County, 87 Ky. 208; Shepard v. Pu-
Meredith, 36 N. H. 284; Wixon v. lasld County (Ky.), 18 S. W. Rep. 15.
Newport, 13 R. L 454; Hillv. Boston, 3Galvin v. New York, 112 N. Y.
122 Mass. 344.
2 Dosdale v. Olmstead County, 33
Minn. 96. 44 Am. Rep. 185; Kincaid
223.
4 Briegel v. Philadelphia, 135 Pa.
St. 451, 30 Am. & Eng. C. C. 501,
v. Hardin County, 53 Iowa, 430, 36 note; Wixon v. Newport, 13 R. I. 454.
§ 338.]
CONSTRUCTION AND CARE OF PUBLIC WORKS.
307
of a police station,1 a well maintained for public use,* a fire
engine,8 a public dumping yard,4 and of trees belonging to the
city.5 But there is no liability for damages caused by the
bursting of fire-hose caused by the negligence of the firemen,6
the unsafe condition of a hydrant which resulted in injury to
property of a citizen,7 or the unsafe handling of a dumping
truck while engaged in collecting the refuse of the city.8
§338. Surface waters. — By the common law any person
may erect barriers to prevent surface water from coming upon
his land, although it is thereby made to flow upon the land of
another to his damage. This doctrine has been adopted in a
number of states,9 while others adhere to what is known as the
civil-law rule, which holds the lower estate chargeable with a
servitude for the benefit of the upper estate, to permit the sur-
face waters to flow over it as it has oeen accustomed to do.™
Where the common-law rule prevails, cities and towns, as the
owners of lands for highways and other public purposes, have
the same right to obstruct and repel the flow of surface water
1 Carrington v. St. Louis, 89 Mo.
eoa
*Danaher v. Brooklyn, 119 N. Y.
241. But the city is not the insurer
of the quality of the water, and in
order to authorize a recovery on
such grounds it is necessary to show
wilful misconduct or culpable neg-
lect.
'Lafayette v. Allen, 81 Ind. 166.
In this case the city was held liable
to an engineer who was put at work
on a defective engine. Contra, see
Wild v. Paterson, 47 N. J. L, 406.
4 Fort Worth v. Crawford, 74 Tex.
404
5 Jones v. New Haven, 34 Conn. 1.
• Fisher v. Boston, 104 Mass. 87, 6
Am. Rep. 196.
i Welsh v. Rutland, 56 Vt 228, 48
Am. Rep, 762. Contra, Jenny v.
Brooklyn, 120 N. Y. 164.
8Condict v. Jersey City, 46 N. J.
L. 157.
9 Gannon v. Hargadon, 10 Allen,
106, Bigelow, G J. See, also, Chade-
ayne v. Robinson, 55 Conn. 345; Mur-
phy v. Kelley, 68 Me. 521; Edwards
v. Charlotte R R Co., 39 & CL 472,
22 L, R A. 246; Hanlin v. Chicago,
etc. Co., 61 Wis. 515; Jones v. Han-
noran, 55 Mo. 482; Mo. Pac. R Co. v.
Keys, 55 Kan. 205, 49 Am, St Rep.
249, and note. The common law re-
gards surface water as the common
enemy which each proprietor may
turn from his own land. The de-
scription was first used in Rex v.
Com'rs of Sewers, 8 Barn. & Cress.
355. See an article in 23 Am. Law
Rev. 372. See for common-law rule,
Mayor v. Sikes, 94 Ga. 30, 47 Am. St.
Rep. 132. The cases governing sur-
face water are collected in an ex-
haustive note to Gray v. McAVilliams,
98 CaL 157, in 21 L. R A 593.
10Domat, Civil Law (Gush, ed.),
§ 1583; Lambert v. Alcorn, 144 III
313, 21 L R A. 611; Gray v. Mc-
Williams, 93 CaL 157, 21 L, R A. 593;
Farris v. Dudley, 78 Ala. 124.
308 LIABILITIES OF PUBLIC CORPORATIONS. [§ 339.
as other proprietors.1 A corporation has less power over nat-
ural water-courses than over ordinary surface waters. To be
a water-course " there must be a stream usually flowing in a
particular direction, though it need not flow continually. It
may sometimes be dry. It must flow in a definite channel,
having a bed, sides and banks, and usually discharge itself in
some other stream or body of water." 2 A natural water-
course cannot be obstructed and the waters turned back upon
the land of another proprietor.3 Every proprietor of land on
a water-course is entitled to the employment and use of the
stream substantially in its natural flow, subject only to such
interruptions as are necessary and unavoidable in its reason-
able and proper use by other proprietors.4 A corporation must
so construct its public works as not to interfere with or ob-
struct the waters of a natural stream, and in the absence of a
statute expressly authorizing such obstruction it is liable for
real and substantial damages occasioned to individuals by its
torts.5 It is also established by the weight of authority that
a municipal corporation is liable for damages if it collects sur-
face water and causes it to be discharged with increased vol-
ume and force upon the property of an individual where it
would not have gone by natural causes.6
§ 339. Drainage and sewers. — A municipal corporation is
not liable for damages resulting from a failure to exercise its
discretionary or governmental power to improve its streets by
constructing sewers or drains for the purpose of carrying off
1 Hoyt v. Hudson, 27 Wis. 656, 9 Am. lord, 43 Minn. 466 ; Conner v. Wood-
Rep. 473; Inman v. Tripp, 11 R. L fill, 126 Ind. 85; Rathke v. Gardner,
520; Wakefield v. Newell, 12 R I. 75; 134 Mass. 14; Rycblicki v. St. Louis,
Murray v. Allen (R L), 38 Atl. Rep. 98 Mo. 497; Kobs v. Minneapolis, 22
497. Minn. 159; Pyre v. Mankato, 36 Minn.
2Dixon, C. J., in Hoyt v. Hudson, 373, 1 Am. St. Rep. 671, note. In
27 Wis. 656, 661, 9 Am. Rep. 473. Davis v. Crawfordsville, 119 Ind. 1,
3 Emery v. Lowell, 104 Mass. 13. 12 Am. St. Rep. 361, it was held that
4 See Warren v. Westbrook Mfg. a city is liable in damages for col-
Co., 86 Me. 32, 26 L. R. A. 284. lecting water in artificial channels
8 Perry v. Worcester, 6 Gray, 544, and casting it in a body upon the
66 Am. Dec. 431, and note; Oilman v. property of others, but not liable for
Laconia, 55 N. H. 130, 20 Am. Rep. consequential damages caused by
175. grading and improving its streets,
6 Kauffman v. Griesemer, 26 Pa. St. unless the work is done negligently.
407, 67 Am. Dec. 437; Beach v. Gay-
§ 340.] CONSTRUCTION AND CARE OF PUBLIC WORKS. 309
surface water and sewage.1 In determining the time when
such public improvements shall be made, and the claims of vari-
ous localities, it acts in a governmental capacity, and is not lia-
ble to any one for its action or non-action.2 The authorities are
not entirely in accord, but the prevailing rule seems to be that
a city is not liable for damages occasioned by changing the
flow of surface water when it results from a proper exercise of
a legal power to grade the streets, or in constructing other
public improvements.3
§ 340. The plan of a public work. — It has often been said that
a city is not liable for any defect or want of efficiency in the
plan adopted for a sewer or other public improvement,4 but this
general statement must be modified in the light of recent de-
cisions. In deciding whether a system shall be adopted and in
what part or parts of a city it shall be constructed, the corpo-
ration acts free from liability to individuals for consequential
damages. But it must exercise reasonable care and skill in
adopting the plan as well as in the work of mechanical con-
struction.5 This requires that it shall use care in selecting ad-
1 Cochrane v. Maiden, 152 Mass. Perry v. Worcester, 6 Gray, 544, 66
365; Noble v. St. Albans, 56 Vt. 522; Am. Dec. 431, 435. The author of the
Springfield v. Spence, 39 Ohio St. 665; note says that the weight of author-
Weis v. Madison, 75 Ind. 241. ity (1886) is in favor of the view that
2 Mills v. Brooklyn, 32 N. Y. 489; the city acts judicially in adopting
Cummins v. Seymour, 79 Ind. 491, the plan of drainage. It will be ob-
41 Am. Rep. 618; Henderson v. Min- served that in Mills v. Brooklyn, 33
neapolis, 32 Minn. 319. It is not the N. Y. 495, the court said that the
duty of a city to construct sewers in plaintiff's condition was no worse
order to relieve the property of indi- than it would have been had no
viduals from surface water. Jordan sewer been built.
v. Benwood (W. Va.), 26 S. E. Rep. » North Vernon v. Voegler, 103 Ind.
265; Montgomery v. Gilmer, 33 Ala. 314; Evansville v. Decker, 84 Ind.
116. 70 Am. Dec. 562. 325, 43 Am. Rep. 86; Seifert v. Brook-
JSee § 338, supra; also Burns v. lyn, 101 N. Y. 136; Indianapolis v.
Cohoes, 67 N. Y. 204; Templeton v. Huff er, 30 Ind. 235 ; Seymour v. Cum-
Voshloe, 72 Ind. 134, 37 Am. Rep. mins, 119 Ind. 148, 5 L. R A. 126;
150; Davis v. Crawfordville, 119 Ind. Rochester White Lead Co. v. Roches-
1; O'Brien v. St. Paul, 25 Minn. 331. ter, 3 N. Y. 463; Van Pelt v. Daven-
See Dillon, Mun. Corp., II, g 1042, and port, 42 Iowa, 308; Chicago v. Seben,
cases cited. See § 343 as to conse- 165 111. 371. There is no responsibil-
quential damages. ity when reasonable care is exercised
4 The leading case is Mills v. Brook- to employ a competent engineer to
lyn, 32 N. Y. 489. The authorities devise the plan. Diamond Match
are collected in an extensive note to Co. v. New Haven, 55 Conn. 510. The
310
LIABILITIES OF PUBLIC COEPOEATIONS.
[
visers and engineers1 and in adopting a system reasonably
adequate for the work which, in the light of the history of the
locality, will be required of it.2 That is, there may be such a
lack of care and skill in devising the plan as to amount to ac-
tionable negligence. But if such care is used in adopting the
plan there is no liability for damages resulting to individuals
from the mere fact that the plan proves defective or insuffi-
cient. If, however, after the system is constructed it proves
inadequate to do the work, and with knowledge of that fact
the corporation continues to maintain it, and individuals are
thereby damaged, it is liable therefor,3 as a city has no immu-
nity from legal responsibility for maintaining a nuisance.
§ 341. Direct injury to property. — It has already been stated
that a municipality has no right, in the exercise of its power
over its streets, to collect water and sewage and deposit it in
rule that a city is not liable for in-
juries occasioned by the plan adopted
should not be so extended as to re-
lieve "the city from liability when
the plan devised and put in opera-
tion leaves the city's streets in a
dangerous condition for public use."
Tiedeman, Pub. Corp., § 350, quoted
in approval in Chicago v. Seben, 165
III 371. In Omaha v. Richards, 49
Neb. 244, the court said: " It was the
duty of the city to have constructed
the sewer and street in question in
such a manner as to provide a proper
and adequate outlet for the water
that might have been reasonably ex-
pected to come down this ravine.
In failing to do so, the city authori-
ties were guilty of negligence."
1 Rochester White Lead Co. r.
Rochester, 3 N. Y. 463; Diamond
Match Co. v. New Haven, 55 Conn.
510.
2 Beatrice v. Leary, 45 Neb. 149, 50
Am. St. Rep. 547; Allen v. Chippewa
Falls, 52 Wis. 430, 38 Am. Rep. 748.
InSpangler v. San Francisco, 84 Cal.
12, the court said : " It was the duty of
the city, when it does provide water-
ways, to provide such as are suffi-
cient to carry off the water that
might reasonably be expected to ac-
cumulate." Citing Damour v. Lyon
City, 44 Iowa, 276; Powers v. Coun-
cil Bluffs, 50 Iowa, 197; Schroeder v.
Baraboo, 93 Wis. 95, 67 N. W. Rep. 27.
3 Netzer v. Crookston, 59 Minn. 244;
Tate v. St. Paul, 56 Minn. 527; Seifert
v. Brooklyn, 101 N. Y. 136. In Netzer
v. Crookston, supra, the court said,
with reference to Tate v. St. Paul:
" The principle on which that case
was really decided is that, even
though the defect in the sewer is
of legislative origin, yet where it is
clearly demonstrated by experience,
after sufficient trial, that the sewer
is, under ordinary conditions, insuf-
ficient for its purpose, the city is
liable for maintaining it; that while
it is not liable for the original error,
which was legislative, it is liable for
persisting in that error after suffi-
cient trial and experience, which is
ministerial. A city cannot justify
itself for maintaining a nuisance un-
less it can show legislation to do the
act. Miles v. Worcester, 154 Mass.
511; Harper v. Milwaukee, 30 Wis.
365; Noonan v. Albany, 79 N. Y. 470.
CONSTRUCTION AND CAKE OF PUBLIC WORKS.
311
increased quantities upon the private property of an individual.1
Such an act is a direct invasion of a property right, and the cor-
poration is liable for the resulting damages, regardless of the
fact that the sewer was constructed in accordance with the
plan adopted.2 "To determine when and upon what plan a
public improvement shall be made is," says Chief Justice Gil-
fillan, "unless the charter otherwise provides, left to the judg-
ment of the proper municipal authorities, and is in its nature
legislative; and although the power is vested in the municipal-
ity for the benefit and relief of property, error of judgment as
to when or upon what plan the improvement shall be made,
resulting only in incidental injury to the property, will not be
ground of action ; as if, in grading streets to the authorized
grades, the plan of the grading is inadequate to drain a lot of
its surface water, or even if it makes it more difficult and ex-
pensive for the owner to drain it, or makes access to the lot
more difficult, that is a result incidental to the improvement.
But for a direct invasion of one's right of property, even though
i Seifert v. Brooklyn, 101 N. Y. 136;
Lynch v. New York, 76 N. Y. 60;
Hitchins v. Frostburg, 68 H<L 100.
A city may be enjoined from dis-
charging water on private lands.
Field v. West Orange, 86 N. J. Eq.
118. Contra, see Heth v. Fond du
Lac, 63 Wis. 228; Gilluly v. Madison,
63 Wis. 518. There is no liability for
damages caused by water percolat-
ing from gullys into adjacent cel-
lars. Kennison v. Beverly, 146 Mass.
467, § 338, supra.
2Tate v. St. Paul, 56 Minn. 527;
Seifert v. Brooklyn, 101 N. Y. 136;
Ashley v. Port Huron, 35 Mich. 296;
Weis v. Madison, 75 Ind. 241 ; Gillison
v. Charleston, 16 W. Va. 282, 37 Am.
Rep. 763; Boston Belting Co. v. Bos-
ton, 149 Mass. 44; Burford v. Grand
Rapids, 53 Mich. 98; Evansville v.
Decker, 84 Ind. 325, 43 Am. Rep. 86;
Rychlicki v. St. Louis, 98 Mo. 497, 4
L. R. A. 594, note; Chapman v. Roch-
ester, 110 N. Y. 273, 1 L. R, A. 296,
with note on liability for the pollu-
tion of waters. In Tate v. St. Paul,
56 Minn. 527, the court said: "Judge
Dillon, in his work on Municipal
Corporations (4th ed.), §§ 1047 to 1051,
approves the rule laid down in more
recent decisions by some of our
ablest courts, that if a sewer, what-
ever its plan, is so constructed as to
cause a positive and direct invasion
of private property, as by collecting
and throwing upon it to its damage
water or sewage which would not
otherwise have flowed or found its
way there, the corporation is liable.
. . . It is impossible to answer the
reasoning of these cases, especially
where the injury complained of con-
stitutes a taking, that making one's
premises a place of deposit for the
surplus waters in the sewers in times
of high water, or creating a nuisance
upon them so as to deprive the owner
of the beneficial use of his property,
is an appropriation requiring com-
pensation to be made." See Weaver
v. Mississippi & R. R, Boom Got, 28
Minn. 534,
312
LIABILITIES OF PUBLIC CORPORATIONS.
[§ 342.
contemplated by or necessarily resulting from the plan adopted,
an action will lie; otherwise it would be taking private prop-
erty for public use without compensation. Thus, if in cutting
a street down to a grade the soil of an abutting lot is precipi-
tated into the cut, or if in filling up the grade the slope of the
embankment is made to rest on private property, that is a di-
rect invasion of property rights which cannot be justified, even
though the plan adopted contemplates or will necessarily pro-
duce the result."
§ 342. The construction and care of sewers. — "When the cor-
poration ceases to act judicially or legislatively and begins
to act ministerially it is liable for damages caused by its neg-
ligence. The liability for damages caused by its neglect to
exercise reasonable care in the construction1 or maintenance
of drains and sewers over which it has control2 is recognized
even in the states which impose no liability upon the corpora-
tion for want of care in the management of its highways.8 The
distinction has been placed on the grounds that the city acts
1 A city acts ministerially in the
construction of a sewer. Montgom-
ery v. Gilmer, 33 Ala. 116, 70 Am.
Dec. 562. See note to Perry v. Wor-
cester, 66 Am. Dec. 434, 442.
2Monticello v. Fox (Ind. App.), 28
N. E. Rep. 1025; Kosmak v. New
York, 117 N. Y. 361, 22 N. E. Rep.
945. See note, 66 Am. Dec. 436,
where many cases are cited. As to
liability when a sewer is in part on
private property, see Stoddard v.
Saratoga Springs, 127 N. Y. 261. In
Schroeder v. City of Baraboo, 93
Wis. 95, 101, the court said: "It may
be stated generally as the law that
where private property is flooded
by water and sewage, whether such
property be on the grade of the
street or below such grade, either
by such water and sewage, after
having been collected in such sewer
or drain, escaping therefrom to
such property by reason of the neg-
ligent construction of such drain
or sewer or want of proper repair
of the same, or by negligent dis-
continuance thereof by closing up
the outlet, the city is liable. Such
is the doctrine of Gilluly v. Madison,
63 Wis. 518, and to the same effect
are Hitchins v. Frostburg, 68 Md.
100; Defer v. Detroit, 67 Mich. 346.
And this is so though the sewer
or drain be originally constructed
wholly or in part only by private
parties, if the municipality assumes
the control and maintenance of it.
Taylor v. Austin, 52 Minn. 247."
8 Bates v. Westborough, 151 Mass.
174, 23 N. E. Rep. 1070, 7 L. R. A. 156;
Gilman v. Laconia, 55 N. H. 130, 20
Am. Rep. 175; Weller v. St. Paul
(Minn.), 12 Am. St. Rep. 754, note;
Davis v. Crawfordville, 119 Ind. 1,
12 Am. St. Rep. 361, note; Hazzard v.
Council Bluffs, 79 Iowa, 106; Seifert
v. Brooklyn, 101 N. Y. 136; Judge v.
Meriden, 38 Conn. 90; Gilluly v. Mad-
ison, 63 Wis. 518; Owens v. City of
Lancaster, 182 Pa. St. 257, 38 Atl.
Rep. 858; Blizzard v. Danville, 175
Pa. St. 479.
§ 343.] CONSTRUCTION AXD CARE OF PUBLIC WORKS. 313
voluntarily in constructing sewers and involuntarily in con-
structing highways,1 and that the interest of the corporation
in the sewers is so distinct from that of the public at large that
it practically owns them and is therefore liable for their care.2
The corporation is not required to exercise extraordinary care
to keep its sewers in proper condition.* As in the case of high-
ways, it is not liable unless it has actual or constructive notice
of the defect,4 but it is required to exercise reasonable care in
inspecting the works in order to discover defects.5
§ 343. Consequential damages. — That which the legislature
legally authorizes cannot be wrongful. Hence, when a cor-
poration acts within the limits of its power and jurisdiction
and pursuant to a valid act of the legislature, and with reason-
able care and skill, it is not responsible for consequential dam-
ages to private property or persons.6 Thus, there is no liability
for damages caused by establishing or changing the grade of
streets.7 The state has absolute control over the streets and
highways, and all adjoining property is held subject to the con-
dition that the grade may be changed. The reason for this
rule is thus stated in a leading case : 8 " Those who purchase
house-lots bordering upon streets are supposed to calculate the
chances of such elevations and reductions as the increasing pop-
ulation of a city may require in order to render the passage to
and from the several parts of the city safe and convenient;
iRowev. Portsmouth, 56 N.H. 291; « Dillon, Man. Corp., n, § 987;
Winn v. Rutland, 52 Vt 481. Callendar v. Marsh, 1 Pick. (Mass.)
2 Bates v. Westborough, 151 Mass. 417; Alexander V.Milwaukee, 16 Wis.
174; Child v. Boston, 4 Allen, 41. 264; Terry v. Richmond (Va.\ 27
» Netzer v. Crookston, 59 Minn. 244 & E. Rep. 428, 38 L. R. A. 834; Pow-
« Ha us v. Bethlehem, 134 Pa, St 12, ell v. Wytheville (Va.), 27 & R Rep.
19 AtL Rep. 437. 805.
*Vanderslice v. Philadelphia, 103 'Callendar v. Marsh, 1 Pick. 417;
Pa. St. 102. A city must use reason- Green v. Reading, 9 Watts (Pa.), 382;
able care when it is constructing Lee v. Minneapolis, 22 Minn. 13;
sewers to avoid injury to individ- Abel v. Minneapolis (Minn.), 70 N. W.
uals. When the work is in the Rep. 851. This rule is recognized in
hands of a contractor the weight of every state except Ohio. See Mo
authority is to the effect that both Combs v. Akron Council, 15 Ohio,
the city and the contractor are liable 474; Cohen v. Cleveland, 43 Ohio St.
for injuries caused by negligence re- 190.
garding excavations in the streets. 8 Callendar v. Marsh, 1 Pick. 417 ;
See Pearson v. Zable, 78 Ky. 170; Northern Transportation Co. v. Chi-
Welsh v. St. Louis, 73 Mo. 71. cago, 99 U. S. 635.
314 LIABILITIES OF PUBLIC COEPOEATIONS. [§ 343.
and as their purchase is always voluntary they may indemnify
themselves in the price of the lot which they buy or take the
chance of future improvements, as they see fit. They are pre^
sumed to foresee the changes which public necessity or conven-
ience may require." The rule is the same although the prop-
erty owner has constructed buildings with reference to such
grade,1 and his access is entirely cut off. Changing the grade
under such circumstances is not taking the property for public
use.2 It has been said that a municipal corporation is liable
for damages caused to private property by grading streets,
" when a private owner of the soil over which the streets are
laid, if improving it for his own use," would be liable.3 On
this principle an abutting owner can recover damages from a
municipality for removing the natural support of his land.4
But the prevailing rule is that there is no common-law liability
for damages, although the street is so graded as to cause the
earth to fall in.5 A remedy is now generally provided for by
statute. In such cases it is exclusive of all other remedies.6
1 Henderson v. Minneapolis, 32 can be a recovery. See Searles v.
Minn. 319. The power to make a Lead (S. Dak., 1897), 39 L. R. A. 345,
grade and improve streets is a con- note, and cases cited.
tinuing power. Karst v.. St. Paul, 3 O'Brien v. St. Paul, 25 Minn. 331;
etc. R. Co., 22 Minn. 118. Armstrong v. St. Paul, 30 Minn. 299.
2 Northern Transportation Co. v. 4 O'Brien v. St. Paul, 25 Minn. 331;
Chicago, 99 U. S. 635. See Dillon, Nichols v. Duluth, 40 Minn. 389.
Mun. Corp., II, § 995&.' 8See Dillon, Mun. Corp., II, § 990,
But when the constitution pro- note.
vides for compensation when prop- 6Heiser v. New York, 104 N. Y. 68;
erty is taken or " damaged," there Cole v. Muscatine, 14 Iowa, 296.
CHAPTER XIX.
ACTIONS AND PROCEEDINGS.
344 The right to sue and be sued.
345. Notice of claim.
346. Mandamus.
347. Mandamus to enforce duties
toward creditors.
348. Further illustrations of the
use of mandamus.
§ 349. Quo warranto.
350. Remedy in equity.
351. Certiorari.
352. Levy of execution on corpo-
rate property.
353. Liability to garnishment.
§ 344. Tlie riyJit to sue and be sued. — The right to sue and
be sued is a power incidental to all public corporations. A
question has sometimes arisen in connection with quasi-corpo-
rations, but if such bodies are corporations they may sue and
be sued in the same manner as municipal corporations. The
name in which actions shall be brought is governed by the
charter. They are sometimes brought in the corporate name
or in the name of the inhabitants, the mayor, the county com-
missioners or trustees. This must be determined by examina-
tion of the charter or laws of the state.1
§345. Notice of claim. — Municipal charters generally pro-
vide that no action shall be maintained against the corporation
unless a statement in writing signed by the person injured or
claiming to be injured by the wrong and the circumstances
thereof and the amount of damages claimed shall be presented
to the proper officer within a designated time. As already
stated, the words " claim or demand," when used in such a
statute, do not apply to a tort.2 An action to recover back
illegal taxes paid under protest sounds in tort, although in form
an action on an implied contract.3
1With reference to the right to
sue a county, see Ward v. Hartford
County, 12 Conn. 404; Whittaker v.
Tuolumne County, 96 Cal. 100, 30
Pac. Rep. 10 10. As to the right of
county commissioners to sue, see
County of Tipton v. Kimberlin, 103
Ind. 449, 9 N. E. Rep. 407. As to the
right of a village to sue, see Buffalo
v. Harling, 50 Minn. 551, 52 N. W.
Rep. 931.
- ? 287, supra.
3 Flieth v. City of Wausau, 93 Wis.
446; Ruggles v. Fond du Lac, 53 Wis,
436.
316
LIABILITIES OF PUBLIC COKPOKATIONS.
[§ 346.
§ 346. Mandamus. — The writ of mandamus will issue to a
public corporation or its officers to compel the performance of
a duty clearly enjoined upon them by law when there is no
other specific legal remedy adequate to enforce the rights of the
relator or of the public.1 It is not as formerly a prerogative
writ,2 but in modern practice "is nothing more than an action
at law between the parties. . . . The right to the writ and
the power to issue it has ceased to depend on any prerogative
power, and it is now regarded as an ordinary process in cases
to which it is applicable. It is a writ to which every one is en-
titled when it is the appropriate process for asserting the right
he claims." 3 It will issue only where there is a clear legal right
in the relator,4 a corresponding duty in the defendant,8 and the
want of any other adequate and sufficient legal remedy.6 It
i State v. Whitesides, 30 S. C. 579, 3
L. R. A. 777, annotated; People v.
Grotty, 93 111. 180; Baker v. Marshall,
15 Minn. 177 (Gil. 136); State v. South-
ern Minn. Ry. Co., 18 Minn. 40 (Gil. 21).
In Bassett v. Atwater, 65 Conn. 355,
32 L. R. A. 575, Andrews, C. J., said:
"Mandamus, although it is an ex-
traordinary legal remedy, is in the
nature of an equitable interference,
supplementing the deficiencies of
the common law. It will ordinarily
be issued where a legal duty is es-
tablished and no other sufficient
means exists for enforcing it. When
the object sought can be equally
well obtained by other means, as by
an action, or by some other form of
proceeding, then mandamus will not
lie. Thus, the enforcement of merely
private obligations, such as those aris-
ing from contracts, are not within
its scope." Mandamus cannot usurp
the functions of an appeal or writ
of error. State v. Buhler, 90 Mo. 560.
It must be remembered that the writ
of mandamus is regulated by statute
in many states and that the tendency
is toward extending its use. The
writ may under some statutes be
used whenever it will afford a proper
and sufficient remedy, although there
may be another specific remedy.
See People v. Commissioners of High-
ways, 130 111. 482, 6 L. R. A. 161; Peo-
ple v. Grotty, supra,
2 See § 285, supra, note; High,
Extr. Legal Rem., §§ 350, 606. But
it is not a writ of right granted ex
debito justitice, but of sound judi-
cial discretion, to be granted or with-
held according to circumstances.
3 Taney, C. J., in Kentucky v. Den-
nison, 24 How. (U. S.) 66, 97; Illinois
Central Ry. Co. v. People, 143 111.
434, 19 L. R. A, 119.
* State v. McCabe, 74 Wis. 481, 43
N. W. Rep. 322; People v. State
Board of Canvassers, 129 N. Y. 360,
14 L. R. A. 646; People v. Stevens, 5
Hill (N. Y.), 616; Phoenix Iron Co. v.
Com., 113 Pa. St. 563.
8 Com. v. Pittsburgh, 34 Pa. St. 496.
6 State v. Whitesides, 30 S. C. 579, 3
L. R. A. 777; Ray v. Wilson, 29 Fla,
342, 14 L. R. A. 773; State v. Mani-
towoc, 52 Wis. 423; People v. Che-
nango County, 11 N. Y. 563; State v.
Langlie, 5 N. Dak. 594, 32 L. R. A.
723. As to the existence of another
specific remedy under the statute,
see People v. Commissioners of High-
ways, 130 111. 482, 6 L. R. A. 161.
An ordinary action at law against
ACTIONS AND PEOCEEDINGS.
317
will therefore not issue to compel the performance of a duty
which is doubtful or discretionary. Thus, it will not issue to
a mayor to compel him to issue a license, when the issuance
of such license is within his sound legal discretion.1 Judge
Dillon says:2 "If the inferior tribunal, corporate body or pub-
lic agent or officer has a discretion and acts and exercises it,
the discretion cannot be controlled by mandamus; but if the
inferior tribunal, body, officer or agents refuse to act in cases
where the law requires them to act, and the party has no other
legal remedy, and where in justice there ought to be one, a
mandamus will lie to set them in motion, to compel action ;
and in proper cases the court will settle the legal principles
which should govern, but without controlling the discretion of
the subordinate jurisdiction, body or officer." Thus, the min-
isterial act of approving a bond will not be enforced by man-
damus? The writ never lies to enforce private contracts.4
§ 34:7. Mandamus to enforce duties toward creditors. — Man-
damus is the proper remedy to compel a public corporation to
perform its legal duties toward its creditors.5 As a general
a county was held not a specific
and adequate remedy to defeat a
mandamus to compel a county treas-
urer to pay a warrant out of funds
in his possession. Ray v. Wilson,
29 Fla. 342, 14 L. R A. 773, with
note on "•Mandamus to com pel pay-
ment of municipal debt by custo-
dian of municipal funds." In State
v. Ames, 31 Minn. 440, it was said
that such a suit would be neither
speedy nor adequate. It has usually
been held, however, that mandamus
will not be allowed when suit will
lie against the municipality. See
Lexington v. Mulliken, 7 Gray (Mass.),
280; State v. Bridgman, 8 Kan. 307;
Sessions v. Boykin, 78 Ala. 328. But
see People v. Mead, 24 N. Y. 114.
1 Sherlock v. Stuart, 96 Mich. 193,
21 L. R. A. 580; State v. Tippecanoe
Co., 45 Ind. 501 ; Deehan v. Johnson,
141 Mass. 23.
2 Dillon, Mun. Corp., II, § 832. As
to the right to issue a mandamus to
the governor and other state officers,
see People v. Governor, 29 Mich. 320,
note, 18 Am. Rep. 89; Rice v. Aus-
tin, 19 Minn. 103, 18 Am. Rep. 330;
State v. Kirkwood, 14 Iowa, 162;
State v. Stone, 120 Mo. 428, 23 L. R.
A. 194; Mauran v. Smith, 8 R L 192,
5 Am. Rep. 564. The discretionary
power of building bridges and mak-
ing local improvements will not be
controlled by mandamus. State v.
Essex County, 23 N. J. L. 214.
3 Knox County v. Johnson, 124 Ind.
145, 7 L. R. A. 684 It is uncertain
whether the act of approving an
official bond is judicial or ministerial.
The authorities are cited in this case.
* Florida, etc. R. Co. v. State, 31
Fla, 482, 20 L. R. A. 419; Parrott v.
Bridgeport, 44 Conn. 180. See note,
3 L. R A. 265.
5 Meriwether v. Garrett, 102 U. S.
472; Baltimore v. Keeley Institute,
81 Md. 106, 27 L, R A. 647; Thomas
v. Mason, 39 W. Va. 526, 26 L. R A.
727.
318 LIABILITIES OF PUBLIC COEPORATIONS. [§ 347.
rule, the writ will not issue when the creditor has a right to
an execution and levy on the property of the corporation or of
its citizens, unless the creditor, by virtue of his contract, is
entitled to the levy of a special tax for the payment of his debt.1
In some states the writ will issue before the creditor has ob-
tained judgment;2 but in the federal courts, when the creditor
is not entitled to a specific tax, there must be a judgment and
the return of an execution nulla bona before a writ of man-
damus will issue.3 The writ is then in the nature of an execu-
tion4 and may be directed to the corporation or its officers, and
its execution cannot be interfered with by the state authorities.5
After judgment, mandamus and not a bill in equity is the proper
remedy to compel the levy of a tax for the payment of the judg-
ment.6 The illegality of the debt is not a defense to mandamus
proceedings to enforce payment of the judgment.7 But where
the town authorities consented to a judgment in favor of certain
bondholders, and it appeared that there was no authority to
issue the bonds, mandamus to compel the levy of a tax to pay
the judgment was refused.8 The writ does not confer new
authority,9 and therefore a corporation can only be compelled
to exert its legal powers. If it has no power to raise money
by taxation, it cannot be compelled to levy a tax.10
1 Knox County v. Aspinwall, 24 worth County Commissioners v. Sel-
How. (U. S.) 376. lew, 99 U. S. 624; Dillon, Hun. Corp.,
2 Com. v. Pittsburgh, 34 Pa. St. 496 ; II, § 861.
Rahway Savings Institution v. Rah- 6 Louisiana v. Police Jury, 111 U. S.
way, 49 N. J. L. 384. 716; Rock Island County v. United
3 Heine v. Levee Commissioners, States, 4 Wall. (U. S.) 435.
19 Wall. (U.S.) 655; Riggs v. Johnson 7 Howard v. Huron, 5 S. D. 539,
County, 6 Wall. (U. S.) 166; State v. 26 L. R. A. 493.
Manitowoc, 52 Wis. 423. 8 Union Bank v. Com'rs of Oxford,
4 Howard v. City of Huron, 5 S. Dak. 1 19 N. C. 214.
539, 26 L. R. A. 493. 9 Rosenthal v. Board of Canvassers,
5 Supervisors v. Rogers, 7 Wall. 50 Kan. 129, 19 L. R. A. 157; State v.
(U. S.) 175. Under extraordinary Secrest, 33 Minn. 381. Mandamus
circumstances, as where all the mu- will not be allowed to compel the
nic-ipal officers resign, the United performance of an act for the pur-
States court will appoint a commis- pose of accomplishing an illegal end.
sioner to levy and collect the tax. State v. Hill, 32 Minn. 275.
This question and the effect of resig- 10 Brownville v. Loague, 129 U. S.
nations are considered in Badger v. 493; United States v. Macon County
United States, 93 U. S. 599; Amy v. Court, 99 U. S. 582.
Watertown, 130 U. S. 301; Leaven-
ACTIONS AXD PEOCEEDIXG3.
319
§ 348. Further illustrations of the use of mandamus. — Sub-
ject to the general rules stated in the preceding section, man-
damus is the proper remedy to compel the payment of the
salary of an official,1 the levy of an assessment as directed by
the charter,2 the issue of bonds to pay for a public improve-
ment,3 the prosecution of a public improvement,4 the admission
to an office,5 the restoration of an officer wrongfully removed
or suspended,6 the holding of an election as required by law 7
or according to the method prescribed by a particular statute,8
the holding by a municipal council of a meeting and the elec-
tion of an officer as required by the charter,9 a board to meet
and canvass votes,10 a canvassing board to omit certain illegal
ballots,11 officers to turn over funds actually in their possession,12
1 Baker v. Johnson, 41 Me. 15.
2 Reock v. Newark, 83 N. J. L. 129.
3 People v. Flagg, 46 N. Y. 401. See
People v. Batchellor, 35 N. Y. 128, 13
Am. Rep. 480.
4 People v. Brooklyn Council, 22
Barb. (N. Y.) 404
5 State v. Rah way, 33 N. J. L. Ill;
Ellison v. Raleigh, 89 N. C. 12o. But
mandamus is not the proper remedy
to try title to an office. See People
v. Detroit, 18 Mich. 338; Biggs v. Mc-
Bride, 17 Oreg. 640, 5 L. R A. 115;
State v. Atlantic City, 52 N. J. L. 332, 8
L. R. A. 697; Fleming v. Guthrie, 32
W. Va. 1, 3 L. R. A. 57, annotated. In
Harwood v. Marshall, 9 Md. 83, it
was held that mandamus was the
proper remedy to try the title to an
office when, by reason of the delay
incident to the remedy by quo war-
ranto, relief would be ineffectual.
See Dillon, Mun. Corp., II, § 846, and
§ 285, supra.
«State v. Jersey City, 25 N. J. L.
536. Mandamus is not the proper
remedy to restore to office a person
who has been wrongfully removed
and whose successor has been elected
and enters upon the duties of the
office. People v. New York Infants'
Asylum, 122 N. Y. 190, 10 L. R A. 381.
7 People v. Fairbury, 51 III 149.
8 State v. Wrightson, 56 N. J. L.
126, 22 L. R. A. 548.
9 Lamb v. Lynd, 44 Pa. St. 336.
10 Rosenthal v. State Board of Can-
vassers, 50 Kan. 129, 19 L. R A. 157.
To compel the board to disregard
certain returns which, although reg-
ular on their face, is admittedly the
result of an illegal canvass. People
v. Rice, 129 N. Y. 449, 14 L. R A. 643,
note. To correct the return by omit-
ting certain irregular ballots. State
v. Board of County Canvassers, 129
N. Y. 395. But not to count ballots
which have passed beyond their con-
trol. State v. Waggoner, 34 Neb. 116,
15 L. R A. 740.
11 People v. Board of County Can-
vassers, 129 N. Y. 395, 14 L. R A. 624,
But it will not issue to compel a
board to count ballots according to
the provision of an unconstitutional
statute. Maynard v. Board of Dis-
trict Canvassers, 84 Mich. 298. 11 L.
R A. 332.
12 Duval County Commissioners v.
Jacksonville (Fla.), 29 L. R A. 416.
But mandamus will not issue to
compel what cannot be done. Hence,
if an officer has wrongfully put it
out of his power to turn over funds,
there is no remedy by mandamus.
320
LIABILITIES OF PUBLIC COEPOEATIONS.
[§ 348.
to call a new election where the prior election was inoperative,1
to compel the acceptance of an office,2 the payment of a war-
rant by the county treasurer,3 to proceed in a legal manner and
divide a county,4 to compel a board of supervisors to include
certain items in estimates of expenses of the county for the
current year,5 to compel highway commissioners to remove a
certain fence from across a public highway when the facts
which render the existence of the fence illegal are conceded,8
the issue of warrants in payment of referee's fees,7 the delivery
of the office room, books and records of an office to a public
officer,8 to compel a member of a board to meet with the other
members and elect an officer,9 to compel county officers to hold
their office at the legal county seat,10 or to compel a mayor to
recognize a person as a member of the city council.11 But man-
damus will not issue to compel a county treasurer to certify
that all taxes are paid when certain illegal taxes remain un-
paid,12 or to compel township trustees to sign bonds issued and
1 State v. South Kingston, 18 R. L
258, 22 L. R. A. 65.
2 People v. Williams, 145 111. 573, 24
L. R. A. 492, annotated.
3 Ray v. Wilson, 29 Fla. 342, 14 L.
R. A. 773.
4 People v. Broom, 138 N. Y. 95, 20
L. R. A. 81.
'State v. Robinson, 35 Neb. 401, 17
L. R. A. 383.
6 Brokaw v. Bloomington Township
Commissioners, 130 111. 482, 6 L. R. A.
161, annotated.
7 Guthrie v. Territory, 1 Okla. 188,
21 L. R. A. 841.
8 To defeat a mandamus in such a
case it must appear that the incum-
bent has a colorable title and is in
possession under a claim of right.
Stevens v. Carter, 27 Oreg. 553, 35
L. R. A. 343; State v. Johnson, 35
Fla. 2, 35 L. R. A. 357. See elaborate
note in 35 L. R. A. 343, on "Manda-
mus to compel surrender of office."
State v. Sherwood, 15 Minn. 221, 2
Am. Rep. 116; State v. Churchill, 15
Minn. 455 (GiL 369); Merrill, Manda-
mus, § 142. But the writ will be de-
nied when it will become necessary
to determine the title of the de facto
incumbent. State v. Williams, 25
Minn. 340.
9 Statutes which specify a time
within which a public officer is to
perform an official act regarding the
rights and duties of others are gener-
ally directory. Thus, where the law
requires that township trustees shall
meet on a certain day and elect a
county superintendent, and they are
unable to act for want of a quorum,
an absent member will be required by
mandamus to attend at a later date.
Wampler v. State (Ind., 1897), 38 L. R.
A. 829; State v. Smith, 22 Minn. 218.
10 State v. Langlie, 5 N. Dak. 594, 32
L. R. A. 723. The proceedings were
to determine whether the county
seat had been legally changed.
11 Swindell v. State, 143 Ind. 153, 35
L. R. A. 50. See Lawrence v. Inger-
soll, 88 Tenn. 52, 6 L. R. A. 308.
12 State v. Nelson, 41 Minn. 25, 4 L.
R. A. 300.
§ 3i9.] ACTIONS AND PEOCEEDI^GS. 321
placed in the hands of a third person and afterwards held to
have been issued under an unconstitutional statute.1
§ 349. Quo warranto. — Quo warranto is the proper proceed-
ing by which to determine whether a public trust or franchise
is being exercised without authority.2 "When a person is in
possession of an office under color of right, the validity of his
title can in general be tested only on an information in the
nature of a quo warranto.3 In this proceeding the court will
go behind the certificate of election or commission and inquire
into the validity of the election or appointment.4 It is the
proper writ by which to test the right of a person to preside
over a meeting of a municipal body 5 or the right to a seat in
the city council,8 It is generally held in this country that the
question whether a public corporation has been legally created
can be tested in a proceeding of this nature brought against
one exercising an office in the corporation.7 If it appears in
such a proceeding that no corporation either de jure or de facto
exists, the relator is entitled to judgment.8 Under the English
practice the information for usurping a franchise by a corpo-
ration must be brought against the corporation, but for usurp-
ing a franchise to be a corporation it must be against the per-
sons usurping it,9 although an exception to the rule seems to
1 State v. Whitesides, 30 S. C. 579, exists. The leading case is Rex v.
3 L. R A. 777. Saunders, 3 East, 119.
2 It was originally a prerogative 8 State v. Weatherby, 45 Mo. 17;
writ, but the tendency is to reduce State v. McReynolds, 61 Ho. 203.
it to the position of an ordinary ac- 9 People v. Richardson, 4 Cow.
tion. It does not, however, issue as (N. Y.) 91, 109, note. Proceedings in
a matter of course, as it is an intra- the nature of quo warranto, for the
ordinary remedy. purpose of restraining a corporation
8§ 285, supra; State v. Sullivan, 45 from an unlawful exercise of fran-
Minn. 309, 11 L. R. A. 272; State v. chises, must be against the corpora-
Bulkeley, 61 Conn. 287, 14 L. R A. tion, and not merely against the offi-
657; People v. Londoner, 13 Colo. 303, cers and agents. State v. Somerby,.
6 L. R A. 444. 42 Minn. 55. It has been held that
*Cochran v. McCleary, 22 Iowa, 75. the relator, by making the corpora-
5 Coin. v. Meeser, 44 Pa. St. 341. tion a defendant under its corpora-
6 People v. Thatcher, 55 N. Y. 525. tion name, is estopped to deny its cor-
7 People v. Carpenter, 24 N. Y. 86; porate existence. People v. Spring
State v. Parker, 25 Minn. 215. In Valley, 129 111. 169. Contra, State v.
England the information is refused Tracy, 48 Minn. 497.
when it appears that no corporation
21
322 LIABILITIES OF PUBLIC OOKPOEATIONS. [§ 350.
be made in the case of municipal corporations.1 The proceed-
ings to arrest the usurpation of a franchise rest in the sound
discretion of the attorney-general 2 of the state, and the granting
of the writ rests in the sound discretion of the court or judge.8
The following rules have been stated as those which should
guide in the issuance of this writ : 4 First, the relator must not
be a mere stranger coming in to disturb a corporation with
which he has no concern. Second, he must not have concurred
in the act of which he now complains as illegal. Third, unless
there is fraud or intentional violation of law, it must appear
that public or private interests will not be seriously affected
by the ouster of the incumbent.
§ 350. Remedy in equity.— Before a court of equity will use
its powers by injunction to prevent a public corporation from
exceeding or abusing its powers, it must be made to appear that
the case falls within one of the recognized heads of equity juris-
prudence, such as fraud, irreparable injury, want of an adequate
remedy at law or the prevention of a multiplicity of suits.5
There appears to be a tendency, however, to extend this juris-
diction,6 and it is well recognized that the court will see that a
corporation performs all its duties in reference to property
1 State v. Cincinnati, etc. Gas Co., 6 Brooklyn v. Meserole, 26 Wend.
18 Ohio St. 263. An association, al- (N. Y.) 132; Hay wood v. Buffalo, 14
though not incorporated, may be N. Y. 584; Minnesota Linseed Oil Co.
ousted by quo warranto from acting v. Palmer, 20 Minn. 424. The writ of
"as a corporation." State v. Acker- prohibition is sometimes used to re-
man, 51 Ohio St. 163, 24 L. R. A. 298. strain the imposition of illegal fines
2 Robinson v. Jones, 14 Fla. 256. and penalties. An injunction is di-
It must be prosecuted by, and not rected to an individual and a writ
merely with the consent of, the at- of prohibition to an inferior court,
torney-general when the object is to Smith v. Whitney, 116 U. S. 167;
test the right of a corporation to ex- Bluffton v. Silver, 63 Ind. 262. It
ercise a franchise. State v. Tracy, will not issue when there is a remedy
48 Minn. 497, 51 N. W. Rep. 613. It by appeal or certiorari. State v.
will issue, however, without the con- Withrow, 108 Mo. 1; Turner v. For-
sent of the attorney-general when syth, 78 Ga. 683.
the private person has an interest 6 Dillon, Mun. Corp., II, § 908. A
in himself distinct from that of the public corporation may also be in-
public, as a right to an office. In re dieted f or nonfeasance or misfeasance
Barnum, 27 Minn. 466. in the performance of public duties
3 People v. Waite, 70 111. 25. imposed by law. McClain, Crim.
4 Depue, J., in State v. Tolon, 33 Law, I, § 183 and cases cited.
N. J. L. 195, quoted in Dillon, Mun.
Corp., II, § 901.
§ 350.] ACTIONS AND PBOCEEDIXGS. 323
which it holds in trust.1 Suits to prevent public corporations
from exceeding their authority, or to have their illegal acts set
aside or corrected, are properly brought in the name of the at-
torney-general of the state, or in the name of the state on the
relation of some interested person.2 On the theory that a pub-
lic corporation is a trustee for the inhabitants, a taxpayer may
file a bill in equity on behalf of himself and other taxpayers to
prevent the corporation from acting ultra vires or from fraudu-
lently disposing of the property of the corporation or creating
a debt which the taxpayers will be called upon to pay.* In Xew
York, however, a citizen or taxpayer cannot maintain a suit to
restrain or avoid a corporate act alleged to be illegal, unless he
is able to show that he will suffer some damage special and pe-
culiar to himself, distinct from that of other inhabitants.4 But
every taxable inhabitant, and perhaps every citizen, says Judge
Dillon,5 has such an interest to prevent or avoid illegal or un-
authorized corporate acts that he may be a relator on whose
application the proper public officer may, on behalf of the pub-
lic, file the requisite bill in cases which fall within the jurisdic-
tion of equity, to enjoin the menaced wrong; or, if it has been
consummated, to relieve against it. A court of equity will, at
the suit of one or more taxpayers, enjoin a municipality from
collecting an illegal tax on real property.6 The mere fact that
the sale would create a cloud on the title is sufficient to confer
jurisdiction upon the court.7 The court will not generally in-
1 Attorney-General v. Boston, 123 Newmeyer v. Missouri, etc. Ry. Co.,
Mass, 460. 52 Ma 81, 14 Am. Rep. 394, note,
2 State v. Saline County, 51 Ma 350, 4Dooiittle v. Broome County, 18
11 Am. Rep. 454; Attorney-General N. Y. 155; Roosevelt v. Draper, 23
v. Detroit, 26 Mich. 262. In People v. N. Y. 3ia
Field, 58 N. Y. 491 (Tweed cases), it s Dillon, Mun. Corp., II, § 921; Chi-
was held that an action to recover cago v. Union Building Ass'n, 102
money illegally taken from the city III 379.
of New York could not be main- 6Dows v. Chicago, 11 Wall. (U. S.)
tained in the name of the attorney- 108; State Railway Tax Cases, 92
general of the state; § 37 note, supra. U. S. 575.
3 Crampton v. Zabriskie, 101 U. S. " Holland v. Baltimore, 11 Md. 186.
601 ; New London v. Brainard, 22 It is considered that there is an ade-
Conn. 552; The Liberty Bell, 23 Fed. quate remedy at law in the case of
Rep. 843; Baltimore v. Gill, 31 Md. personal property. Dodd v. Hart-
375. As to the right to enjoin a ford, 25 Conn. 231; Youngblool v.
threatened misapplication of funds, Sexton, 32 Mich. 406, 2 Am. Rep. 65;
see Place v. Providence, 12 R, L 1; Milwaukee v. Koeffler, 116 U. S. 219.
32i LIABILITIES OF PUBLIC COKrOKATIONS. [§ 351.
terfere to prevent the collection of an illegal tax on personal
property,1 and will never interfere where the tax is merely ir-
regular.2
§ 351. Certiorari. — The writ of certiorari lies to inferior
courts and officers exercising power of a judicial nature to re-
view judicial proceedings when no right of appeal or other spe-
cific mode of review is provided.3 It is a common-law remedy
and exists in such cases, although not provided for by statute.4
Its application, however, has in some cases been extended be-
yond its proper function at common law by statute and judicial
decision. The other remedy referred to in such a statute has
been held to be one which will enable the relator to have the
proceedings complained of annulled as void and as not includ-
ing a mere right to sue an officer acting under the void order.5
The proceedings of a public corporation, so far as they are of
a judicial nature, may be reviewed and errors of law corrected
by certiorari* but it is not a substitute for an appeal and can-
not be used unless aided by statute for the purpose of correct-
ing errors of fact.7 Thus, the legality 01 convictions in munici-
pal courts,8 of local assessments9 or the opening of a street10
may be thus determined when no other mode of review is pro-
vided by law. The common-law rule that only judicial acts
can be reviewed under the writ has been somewhat relaxed by
some of our courts, and it has been used to test the acts of mu-
nicipal corporations, whether judicial or legislative.11
But there are exceptions to this rule, purpose of reviewing nugatory pro-
See Allen v. Baltimore & Ohio Ry. ceedings. State v. Village of Lam-
Co., 114 U. S. 311. bertson, 37 Minn. 362. For a history
1 Milwaukee v. Koeffler, 116 U. S. of the writ of certiorari, see an ar-
S19. tide by Prof. Goodnow, "The Writ of
2 Stone v. Mobile, 57 Ala. 61. Certiorari," Pol. Sci. Quar., VI, 492.
3 In re Wilson, 32 Minn. 145; State * People v. New York, 2 Hill
v. St. Paul, 34 Minn. 250; Attorney- (N. Y.), 9.
General v. Northampton, 143 Mass. 5 State ex rel. v. Rose, 4 N. D. 319,
589; State v. The Judge, etc., 42 La. 26 L. R. A. 593.
Ann. 1089, 10 L. R. A. 248; Tomlin- 6 Collins v. Davis, 57 Iowa, 256;
son v. Board of Equalization, 88 Oshkosh v. State, 59 Wis. 425; Jack-
Tenn. 1, 6 L. R. A. 207; State v. son v. Michigan, 9 Mich, lit
Hughes County, 1 S. D. 292, 10 L. R. A. ' State v. Bill, 13 Ired. (N. C.) L. 37*.
588. It must be remembered that 8 Taylor v. Americus, 39 Ga. 59.
the use of this writ is regulated by 9 State v. Newark, 25 N. J. L. 399.
statute in many states. The writ of 10 Dwight v. Springfield, 4 Gray, 107.
certiorari will not be granted for the n Camden v. Mulf ord, 26 N, J. L. 49.
§ 352.] ACTIONS AND PROCEEDINGS. 325
§ 352. Levy of execution on corporate property. — The nature
of the powers conferred upon public corporations requires that
they shall not be subject to the ordinary remedies provided for
the collection of debts against individuals. In order that they
may properly provide for the local government of the com-
munity, it is essential that the property held for public uses
shall be exempt from execution. Hence, on grounds of public
policy, it is held that neither the property, the revenues raised
by taxation or by fines and penalties, nor tax judgments can
be seized under execution upon a judgment against the corpora-
tion.1 The property and income of a municipal corporation are
so closely related to that of the state that they partake of the
state's exemption from federal taxation ; 2 but private property
not held in trust or dedicated to a public use may be sold on
execution to satisfy a judgment against the city.3 Thus, the
water-works 4 or the city hall,8 owned by a city, are not subject
to sale on execution. Xor can a mechanic's lien be imposed
upon the public property of a corporation.6 In the !N"ew Eng-
land states, by common law or immemorial usage, a judgment
against a town may be satisfied out of the individual property
of the citizens.7
On certiorari the evidence returned those subject to garnishment does
may be considered only for the pur- not apply to a county. State v. Tyler,
pose of determining whether it will 14 Wash. 495, 45 Pac. Rep. 31.
justify the finding — not whether the 2 United States v. Baltimore & Ohio
superior court would have reached R Co., 17 Wall. (U. S.) 322.
the same conclusion. Jackson v. 3 Brown v. Gates, 15 W. Va. 131;
People, 9 Mich. 111. The proceedings New Orleans v. Home Ins. Co., 23
of a board of health condemning a La. Ann. 61; Davenport v. Peoria
nuisance are not re viewable when Ins. Co., 17 Iowa, 276; Hart v. New
the board is not required to take evi- Orleans, 12 Fed. Rep. 292.
dence, but may act upon its own in- * New Orleans v. Morris, 105 U. S.
spection. People v. Yonkers Board 600.
of Health, 140 N.Y. 1, 23 L. R, A. 481. « Ellis v. Pratt City, 113 Ala. 541,
1 Brown v. Gates, 15 W. Va. 131; 83 L. R A. 264. The exemption from
Overton Bridge Co. v. Means, 33 Neb. levy or attachment applies to the
857, 51 N. W. Rep. 240, 29 Am. St. proceeds of insurance on the city
Rep. 514; Sherman v. Williams, 84 hall.
Tex. 421, 19 S.W. Rep. 606; Morrison 6 Foster v. Fowler, 60 Pa. St. 27:
v. Hinkson, 87 111. 587, 29 Am. Rep. Charnock v. Colfax, 51 Iowa, 70;
77; Emery Co. v. Burresen, 14 Utah, Klein v. New Orleans, 99 U. S. 149;
328, 37 L. R A. 733 (county); Klein Leonard v. Brooklyn, 71 N. Y. 498.
v. New Orleans, 99 U. S. 149. A 7Bloomfield v. Charter Oak Bank,
statute naming corporations among 121 U. S. 121; Beardsley v. Smith, 16
326
LIABILITIES OF PUBLIC CORPORATIONS.
[§ 353.
§ 353. Liability to garnishment. — On grounds of policy,
public corporations are generally held not liable to garnish-
ment with respect to their revenues and the salaries of their
officials. In some states this rule has been established on prin-
ciple,1 in others the exemption is based upon statutory provis-
ions,2 and in some states garnishment is allowed.3 An officer
cannot subject the funds of a municipality to garnishment in a
suit to collect his salary from the corporation.4 Nor can a
city be garnished by a creditor of one of its officers or em-
ployees.8 An officer's salary, when not exempt on other grounds,
may be reached by proceedings supplemental to execution.6
So a judgment debtor may be ordered to assign to his cred-
itor a debt due him from a municipality.7 Where the contro-
versy is between a creditor of the corporation and a creditor
of its creditor, there is every reason for holding that the cor-
Conn. 367, 41 Am. Dec. 147. Else-
where, in the absence of statute,
there is individual liability on the
part of citizens for the debts of the
corporation. Rees v. Watertown, 19
Wall. (U. S.) 107; Meri wether v. Gar-
rett, 102 U. S. 472; Kincaid v. Hardin
Co., 53 Iowa, 430.
1 Burnham v. Fond du Lac, 15 Wis.
211; Merrell v. Campbell, 49 Wis.
535; Erie v. Knapp, 29 Pa. St. 173;
Roeller v. Ames, 33 Minn. 132; Mer-
win v. Chicago, 45 111. 133; Bireus v.
Harper, 59 111. 21; McDougall v. Hen-
nepin Co., 4 Minn. 184 (Gil. — );
Underbill v. Calhoun, 63 Ala. 216.
See note to 24 Am. St. Rep. 73. The
conflicting authorities are reviewed
in Drake on Attachment (7th ed.),
§ 516. Garnishment of taxes due
from an individual. Egerton v. Third
Municipality, 1 La. Ann. 435. A
city may waive its exemption by
appearing. Clapp v. Davis, 25 Iowa,
315.
2 As in Iowa. See Jenks v. Town-
ship, 45 Iowa, 554.
3 See Davis v. Grover, 38 N. J. L.
104; Whidden v. Drake, 5 N. H. 13;
Newark v. Funk, 15 Ohio St. 462;
Bray v. Wallingford, 20 Conn. 416
(town); Seymour v. School District,
53 Conn. 502 (county); Adams v.
Tyler, 121 Mass. 380 (county); Wales
v. Muscatiue, 4 Iowa, 302 (incorpo-
rated city); Laredo v. Nalle, 65 Tex.
359.
4 Baltimore v. Root, 8 Md. 95. In
Waterbury v. Commissioners, 10
Mont. 515, 24 Am. St Rep. 67, it is
held that a county is liable to gar-
nishment for a debt due by it to its
officers, under a statute declaring
that all " persons." To the same ef-
fect, Newark v. Funk, 15 Ohio St. 462.
5 School District v. Gage, 39 Mich.
484; Wallace v. Lawyer, 54 Ind. 501,
23 Am. Rep. 661; Clark v. Mobile, 36
Ala. 621 (salary of teacher); Roeller
v. Ames, 33 Minn. 132 (mayor); Me-
Lellan v. Young, 54 Ga. 399, 21 Am.
Rep. 276; Bank v. Dibrell, 3 Sneed
(Tenn.), 379. Contra, Rodman v.
Musselman, 12 Bush (Ky.), 354, 23 Am.
Rep. 724. By statute salary of po-
liceman is subject to garnishment.
City Council v. Van Dorn, 41 Ala.
505.
6 Roeller v. Ames, 33 Minn. 132.
7 Knight v. Nash, 22 Minn. 456.
§ 353.] ACTIONS AND PEOCEZDDTGS. 327
poration should not be required to become involved in the con-
troversy. But when the corporation is the debtor, there seems
to be no sufficient reason why its creditors should be deprived
of the remedy which the law gives to the creditors of natural
persons and private corporations.1
* A city is subject to garnishment Rouge, 36 La. Ann. 340; Walker T.
for an ordinary debt due by it to Cook, 129 Mass. 577; State v.Eberly,
a third person. City of Laredo v. 12 Neb. 616; Dillon, Mun. Corp., I,
Nalle, 65 Tex. 359; Droz v. Baton § 101.
INDEX.
Reference* are to page*.
ABUTTERS —
rights of* in street, 97.
duty to repair sidewalk, 299, 300.
ACTION (see ch. XIX) —
right to sue, 315.
filing claim as a condition precedent to, 315.
AGRICULTURAL LANDS —
annexation of, 42, 43.
AMENDMENT —
of charter, whether special legislation, 64, 65.
AMOTION (see OFFICER) —
relates to officers, 242.
implied grounds of, 243.
under express statute, 243.
power of removal, whether judicial, 245.
suspension, 245.
removal by appointing power, 245.
causes of removal, 245, 246.
proceedings, notice, 244
AMUSEMENTS —
regulation of, 89.
ANNEXATION (see BOUNDARIES).
APPEAL —
in condemnation proceedings, 129.
APPOINTMENT TO OFFICE (see OFFICES AND OFFICERS).
APPORTIONMENT (see SPECIAL ASSESSMENTS) —
of benefits under special assessments, 112.
ARBITRATION, 82.
ASSESSMENTS —
see SPECIAL ASSESSMENTS, 107.
ATTORNEY —
compensation of, 238.
ATTORNEY-GENERAL —
control over quo \oarranto proceedings, 324
330 INDEX.
References are to pages.
B.
BAY WINDOWS —
projecting over sidewalk, 100.
BENEFITS —
as set-off against damages in condemnation proceedings, 128.
BIBLE —
use of, in public schools, 83.
BICYCLES —
right to use streets, 98.
BIDDERS —
rights and remedies of, 78.
BOARDS —
powers vested in, 218, 219.
BONA FIDE HOLDERS (see BONDS) —
of municipal bonds, 162.
defenses available against, 163.
right to rely on recitals, 163.
BONDS —
power of public gwcm'-corporations to issue, 148.
power of municipal corporations, 149.
authority to issue negotiable bonds, 148.
may be invalid, 148.
bonds payable in gold coin, 148, n.
distinguished from power to incur debt, 149.
implied power to issue bonds, 149, 150.
railway aid bonds, 150.
ratification of illegal bonds, 150, 151.
cannot ratify an act ultra vires the corporation, 150.
liability for value received for illegal bonds, 150, 262.
action for money had and received, 150.
right to restrain issue of illegal negotiable bonds, 153.
bonds illegal in hands of innocent purchaser, 152.
can be issued for public purposes only, 152.
what are such purposes, 152.
paving streets, 152.
constructing water-works, 152.
support of public schools, 152.
constructing public buildings, 153.
acquiring electric light plants, 153.
celebrating Columbian Exposition, 153.
entertainment of visitors, 153.
no implied authority to use money for such purposes, 153.
treatment of habitual drunkards, 94, 153.
construction of railways, 153, 154.
distinction between subscriptions and donations to, 154.
DvDEX. 331
References are to pages.
BONDS (continued) —
manufacturing enterprises, private, 154
construction of a dam to aid manufacturing enterprise, 154, 155.
whether purpose public to be determined by court, 145.
conditions precedent to legal issue, 155 et seq.
how imposed, 155.
when imposed by corporation, right of innocent holder, 156.
waiver of condition by officials, 156.
delegation of power to determine performance of condition, 156.
consent of people as a condition, 156.
such consent does not confer power, 156.
statutory authority must be followed, 156, 157.
effect of irregularities in voting, 156.
contents of petition, 157.
manner of calling election, 157.
notice, 157.
majority of voters, meaning of, 157.
"inhabitants" means legal voters, 157.
majority of qualified electors, 157, 158.
two-thirds of qualified voters, 158.
location or completion of road as a condition, 158.
illustrations, 158.
time of completion, when material, 159.
estoppel, 159.
no estoppel against defense of want of power, 159.
no estoppel to deny authority of officers, 160.
by conduct, 160.
by retaining consideration, 161.
acquiescence, 161.
payment of interest, 161.
estoppel by judgment, 162.
who are bonafide holders, 162.
constructive notice of defenses, 162.
issue in violation of an injunction, 162.
presence of overdue coupons, 163.
must take notice of laws of state, 163.
of public records, 163.
of what appears on face of the bonds, 163.
defenses against a bona fide holder, 163.
want of power, 163.
estoppel by recitals, 163, 164
statement of rule by Dillon, 164
bonds issued in violation of an express statute, 163.
statement of rule by Mr. Justice Strong, 164
authority of officers to make recitals, 165.
grounds of the estoppel, 165.
recital that bonds have been issued "in conformity to law," 165.
"in pursuance of statute," 166.
in pursuance of an order of county court, 167.
332 INDEX.
References are to pages.
BONDS (continued) —
over-issues, 167.
beyond constitutional limitation, 167.
beyond legislative limitation, 167.
when authority is made to depend upon facts of record, 168.
facts which appear upon assessment rolls, 168.
BOUNDARIES —
determination of, by legislature, 21, 41.
legislative power to change, 41.
effect of change on corporate existence, 44.
disposition of public property when no legislative apportionment is
made, 44 and note.
change of, not an amendment of charter, 26.
annexation of territory, 41.
what territory can be annexed, 43.
contiguous territory, 41.
agricultural lands, 42.
cannot annex territory of another corporation, 43.
division of territory, 44.
apportionment of property and debts upon division, 44.
BREACH OF OFFICIAL DUTY —
when cause for removal from office, 245.
BRIDGES (see NEGLIGENCE) —
part of highway, 303.
construction of, compelled by mandamus, 304.
reasonable care required in construction, 304.
must be a reasonably safe structure, 304.
guards and railings, 304.
location of, a governmental act, 304.
constructed to withstand ordinary storms, 304
not to support extraordinary weights, 304.
negligence in case of, 272.
BUILDING —
moving through street, 98.
BUILDING MATERIAL —
in streets, 98.
BY-LAW —
synonymous with ordinance, 176.
c.
CELEBRATIONS —
right to appropriate money for, 153.
CEMETERIES —
as corporate property, 134.
INDEX. 333
"References are, to pages.
CERTIOEARI —
nature of writ, 324
its history, 324, n.
reviews proceedings of a judicial nature, 324,
a common-law remedy, 324
extended by statute, 324
meaning of " other remedy," 324
not a substitute for an appeal, 324
CHARTER —
not a contract, 24
subject to change by legislature, 24
may be submitted to vote of inhabitants, 24
as determining powers, 176.
CHARTER POWERS (see POWERS).
CITY LIMITS —
see BOUNDARIES, 50.
CLASSIFICATION —
as a basis for legislation, 55.
based upon number, 57.
based upon population, 58, 59.
COASTING (see NEGLIGENCE)—
liability for injuries caused by, 269, 299.
COMPENSATION (see OFFICERS) —
upon taking property by eminent domain, 126*
rule for determining, 126, 127.
improvement, 126.
valuations founded on sentiment, 127.
loss of profits, 127.
diminished value of merchandise caused by removal, 127t
of officers, 234, 235.
of mayor, 239.
COMPULSORY INCORPORATION —
consent of inhabitants, 11
by direct legislative action, 14
CONDITIONS PRECEDENT (see BONDS) —
to entry on office, 226.
to issue of bonds, 155.
by what authority imposed, 155.
rule of construction, 155.
consent of people, 156.
manner of obtaining consent, 156.
"majority of voters," "inhabitants," meaning of, 157.
location of railroad, 15&
oath of office, 226.
official bond, 226.
CONFLAGRATION —
destruction of building to prevent, 281.
334: INDEX.
References are to pages.
CONSEQUENTIAL DAMAGES (see NEGLIGENCE; SEWERS) —
liability for, 813.
resulting from exercise of legal right, 127.
as by change of street grade, 127.
CONSTITUTIONAL LIMITATIONS (see ch. IV) —
upon legislative power over corporations, 46.
corporations created for municipal purposes, 46.
general laws, definition, 47.
requirement of a uniform system of government, 48.
object of such a provision, 48.
does not prohibit classification, 48.
same powers possessed by all corporations; law is general, 49.
not intended to secure uniformity in exercise of police power, 50.
special law to legalize defective incorporation, 50.
illustrations under provision requiring uniformity, 50.
laws of a general nature shall have uniform operation, 51.
effect of this provision, 51.
its construction, 51.
does not prevent proper classification, 52.
illustrations, 52.
local-option laws, 54.
classification, 55.
must have a basis in reason, 55.
illustrations of proper basis, 56, 57.
class may contain but one member, 57.
geographical conditions as a basis, 58.
population, 58.
illustrations, 59.
possible accession to a class, 60.
regulation of the " business " and " affairs " of a corporation, 61, 62.
prohibition of special legislation when a general law can be made ap-
plicable, 63.
whether a judicial or legislative question, 63.
amendment or repeal of charters, 64.
an evasion of the constitutional provision, 65.
CONSTRUCTION —
grant of power of eminent domain, construed strictly, 120.
of grants of power, 69.
CONTIGUOUS TERRITORY (see BOUNDARIES)—
right to annex, 51.
CONTINGENT OBLIGATIONS —
as increasing indebtedness, 172.
CONTRACTOR (see TORTS) —
liability for negligence of, 270.
CONTRACTS (see LEGISLATIVE CONTROL) —
legislative control over, 34
charter not a contract, 34.
DvDEX. 3->"
References are to pages.
CONTRACTS (continued) —
grants of power, revocable, 34
no vested rights in license fees, 34
contract between corporation and third persons, 35.
power of taxation, part of contract, 35.
effect of changing manner of levying tax, 35.
exemption of certain property from taxation, 36.
rights of creditors in sinking fund, 36.
limitation of indebtedness as a part of contract, 30.
compulsory contracts, 37.
power to make, 75.
to limit legislative power, 76.
to interfere with duty to preserve public health, 76.
revocation of, by corporation, 76.
letting to lowest bidder, 76.
necessary under charter provision only, 77.
lowest responsible bidder, 77.
remedy of bidder, 78, 79.
remedy of taxpayer, 78.
for term of years, 79.
extending beyond life of council, 79.
creating monopoly, 80.
grant of exclusive privileges, 80.
liability of corporation on, 257.
personal liability of officers on, 246.
ultra vires contracts, 247.
estoppel, when executed by one party, 259.
irregularly executed contracts, 260.
within scope of general power, 260
contracts in part ultra vires, 261.
implied contracts, liability on, 262.
when value received, 262, 263.
illustrations, 263.
recovery back of illegal taxes, 264
must be compulsory, 264
must be involuntary, 265.
CONTROL OF STREETS —
by legislature, 96.
CORPORATE DUTIES (see NEGLIGENCE) —
negligence in connection with, 285.
CORPORATE POWERS —
distinguished from public powers, 23, 132.
powers properly conferred, 132.
right to own private property, 133, 134
electric light plant, 133.
right to convey its property, 134
cannot be taken from it without compensation, 134
336
INDEX.
References are to pages.
CORPORATE POWERS (continued) —
cemeteries, 134.
parks, 134, 135, n.
wharves, 135.
ferries, 135.
ownership of water and lighting plants, 136, 137.
may be authorized to purchase, 138.
nature of the power, 139, 140.
manner of acquiring plant, 140.
COUNCIL —
motives of, in enacting ordinance, 193.
exercises legislative power, 220.
its administrative powers, 220.
its organization, 220.
must act as a unit, 221.
place of meeting, 221.
majority of, 221.
quorum of, 221, 222.
power of appointment, 224.
COUNTIES (see NEGLIGENCE) —
liability for care of streets and roads, 293,
COURT (see MUNICIPAL COURT) —
mayor's court, 239.
CREATION OF CORPORATIONS —
by legislative authority only, 17.
manner of action, 20.
determination of boundaries, 21, 41.
compulsory incorporation, 18.
by United States, 18.
by general law, 20.
by special act, 20.
CREDITORS (see BONDS)—
rights of, 35, 36.
aided by mandamus, 317.
CRIMINALS —
liability for negligence in care of, 284.
D.
DAIRIES —
prohibition of, within certain limits, 216.
DAMAGES (see NEGLIGENCE).
DEBTS (see BOUNDARIES) —
apportionment of, 55.
DE FACTO OFFICERS (see OFFICEB) —
who are, 232, 233, 234.
INDEX. 337
References are to pages.
DELEGATION OF POWER —
of legislative authority, 70, 214.
DEMAND, 146, 315.
DEPUTIES —
liability of, 251.
DISCRETION (see LEGISLATIVE CONTROL) —
in granting permits, must be uncontrolled, 216, 217.
DISCRIMINATION —
unjust, by city officials in granting privileges, 216.
DISSOLUTION —
of corporation by legislature, 44.
property and debts upon, 41.
may be dissolved by legislature, 41, 44.
disposition of property upon, 29.
DONATION —
to railroads, 154
DRAINAGE (see SEWERS) —
of lands, assessments for, 111.
DRUNKARDS AND DISORDERLY PERSONS —
regulating assembling of, 212.
DUAL CHARACTER OF MUNICIPAL CORPORATIONS, 23,
E.
ELECTRIC RAILWAY, 105.
ELECTRICAL BUREAU —
private business, 289.
ELECTIONS —
mandamus to compel, 320.
ELEVATED RAILWAYS —
as servitude, 106.
EMINENT DOMAIN —
subject treated in ch. VIII, p. 119 et seq.
definition, 119.
distinct from police power, 119.
distinct from power of taxation, 119.
distinct from special assessment, 109.
may be delegated, 120.
grant of power of, strictly construed, 120.
generally private property only taken, 100.
may take public property, 120.
may take every species of property, 120, 123.
illustrations — lands, houses, stream of water, etc., 120.
riparian rights. 120.
legislature to determine quantity of estate, 120.
22
338 INDEX.
References are to pages.
EMINENT DOMAIN (continued) —
may take fee or a mere easement, 120.
lands situated beyond corporate limit, 120.
taken for public use only, 121.
public use a question of law, 121.
necessity for taking, a legislative question, 121.
reviewed by courts only when gross error, 121.
illustrations of public uses, 121.
land for private road, 121.
land for ornamental purposes, 122.
property already appropriated to public use, 122.
construction of grant, 122.
railroad crossings, 122.
cemetery, for highway, 122.
right to condemn franchise of a water company, 123, 141.
meaning of " property," 123.
what is a taking, 123, 314.
physical taking not essential, 123, 124
right to take water front, 124.
change of street grade, 124.
the proceedings to condemn, 124.
statutory, strictly followed, 124.
hearing necessary, 125.
the petition, 124
the tribunal, 124
no right to trial by jury, 124, 125.
notice necessary to due process of law, 125.
by whom given, 125, 126.
by advertisement, 125.
compensation, 126, 127.
must be full reasonable value, 126.
improvements, 126.
sentimental considerations, 126.
consequential damages, 127.
benefits, right to set off, 128.
time of payment of damages, 128, 129.
right of appeal, 129.
review by certiorari, 129.
EMPLOYEE —
distinguished from officer, 225.
ENACTING CLAUSE —
to ordinance, 182, n.
EQUITY (see INJUNCTION) —
injunction to prevent abuse of corporate power, 322.
proceedings in name of attorney-general, 323.
in name of some interested person, 323.
proceeding by taxpayer, 323.
INDEX. 339
'References are to pages.
EQUITY (continued) —
case must fall under recognized head of equity, 323.
duties in connection with property held in trust, 323.
sale of real property under illegal tax, 323.
of personal property, 323, 324.
ESTOPPEL (see BONDS) —
when it arises, 159.
want of power to issue bonds, no estoppel, 159l
no estoppel to deny authority of officers, 160.
by conduct, 160.
illustrations, 161.
retaining consideration, 161.
by payment of interest, 161.
by acquiescence, 161.
by judgment, 162.
by recitals, 163, 164 See RECITALS.
to defend against ultra vires contract, 259.
EXCLUSIVE FRANCHISE (see FRANCHISE).
EXCLUSIVE PRIVILEGES (see CONTRACTS)
cannot be granted without express legislative authority, 80.
not favored, 81.
doubts resolved against, 81.
to operate street railways, 81.
to provide water supply, 81.
EXECUTION —
public property of corporation not subject to, 325.
private property of corporation, 325.
rule in New England states, 325.
EXEMPTION —
from taxation, 115.
from local assessments, 118.
P.
FAILURE TO ENFORCE ORDINANCES (see ORDINANCE).
FAST DRIVING —
by members of salvage corps, 205.
FEE (see LICENSE).
FERRY FRANCHISES —
subject to legislative control, 28.
power to maintain ferry may be revoked, 28.
FINAL JUDGMENT —
in mandamus, 318.
FIRE —
destruction of building to prevent spread of, 281.
340 INDEX.
References are to page*.
FIRE LIMITS —
power to establish, 210.
must be reasonably exercised, 210.
repair of building within, 212.
FIREMEN (see NEGLIGENCE) —
negligence of, 282.
FIRE PATROL —
negligence of, city not liable for, 283.
FIREWORKS —
damages by, liability of corporation, 271, n., 278, n.
FLAGMAN —
at railway crossings, 205, 206.
FRANCHISE —
of being a corporation, 2.
of water and light company, 140.
exclusive franchise, 140, 141, 143.
FREEHOLDERS—
special privileges to, 225.
FRONTAGE —
as basis for apportioning local assessment, 114.
FUNDS AND REVENUE (see TAXATION) —
legislative control over, 33.
revenue of a county, not its property, 33.
fund for disabled officer, control over, 33.
G.
GARBAGE —
regulating manner of removal, 212.
GARNISHMENT —
public corporations, when liable to, 326, 327.
GAS AND WATER WORKS (see CORPORATE POWERS) —
ownership of, by corporation, 136, 137.
liability of corporation for negligence in connection with, 28"i
GENERAL LAWS (see CONSTITUTIONAL LIMITATIONS) —
definition of, 47, 58.
GENERAL WELFARE CLAUSE —
construction of, 75.
GOVERNMENTAL DUTIES (see NEGLIGENCE) —
what are, 276.
GRADE OF STREET (see STREET) —
damages occasioned by change of, 313, 314.
whether a taking of property, 124, 127, 314.
DTDEX. 34:1
References are to pages.
H.
HABITUAL DRUNKARDS —
power to provide for treatment of, 94
HACKMEN —
regulation of, 211.
HEALTH (see POLICE POWER) —
corporate powers in relation to, 86.
quarantine regulations, 210.
must not be prohibitory of lawful business, 210.
smoking in street-cars, 211.
HEALTH OFFICERS —
liability for negligence of, 283.
HIGHWAYS (see NEGLIGENCE) —
duty to keep in repair, 290 et seq.
HIGHWAY OFFICERS (see OFFICER) —
personal liability of, 252.
when no funds, 252.
for defective ways and bridges, 252.
HOLDING OVER —
by officers, 241.
HORSE —
objects in street liable to frighten, 297.
HOSPITALS —
care of, 283.
HOTEL RUNNERS —
regulation of, 211.
L
ICE AND SNOW (see NEGLIGENCE) —
in street and highway, 302.
right to require lot-owner to remove from sidewalk, 303.
liability for injuries occasioned by. 303.
ILLEGAL TAXES —
may be recovered back, 264.
when paid involuntarily and under compulsion, 264, 263.
not when merely irregular, 264.
what constitutes coercion, 265.
effect of protest, 265.
necessity of overt act, 265.
paid in order to get a deed recorded, 266.
IMPLICATION —
creation of corporation by, 19.
342 INDEX.
References are to pages.
IMPLIED CONTRACT —
for money had and received, 151.
consideration for illegal bonds, 151.
liability on, 262.
modifies strict doctrine of ultra vires, 262, 263.
to pay back illegal taxes, 264.
payment must have been compulsory, 264.
IMPLIED POWERS, 67.
see POWERS.
INCOMPATIBLE OFFICES, 228.
see OFFICES AND OFFICERS.
INCORPORATION (see CREATION OF CORPORATIONS).
INDEBTEDNESS (see ch. X) —
power to incur, 169.
limitations upon, 169.
measured by percentage of assessed valuation, 169.
notice of such limitations, 169.
meaning of indebtedness, 169.
compulsory obligations, 170.
current expenses, 170.
necessity no excuse, 170.
county warrants, 170, n, 172.
obligations in exchange for property, 170, 171.
agreement to pay rent for market-house, 171.
bonds to pay old debt, 171.
if not used for that purpose are void, 171.
to pay a judgment, 172.
amount of sinking fund to be deducted, 172.
park board certificates, 172.
contingent obligations, 172, 173.
time when created governs, 172.
when contingency depends upon act of corporation, 172.
contracts requiring annual payments, 172.
conflicting decisions, 173.
warrants drawn against future taxes, 175.
INDICTMENT —
of corporation, 322, n.
INDORSEMENT —
of warrant, 147.
INFORMATION —
in nature of quo warranto, 821.
INJUNCTION (see EQUITY) —
against enforcement of void ordinance, 197.
INSPECTION —
of sidewalks, 300, 301.
INTOXICATING LIQUORS —
control over sales of, 91.
IXDEX.
References are to pages.
J.
JUDGE —
of municipal courts, 131.
JUDGMENT —
public property cannot be sold under, 325,
estoppel by, 162.
JUDICIAL OFFICERS (see OFFICER) —
liability of, 248.
JURISDICTION —
over streets, 96.
of municipal courts, 130.
JURY TRIAL —
no right to, in condemnation proceedings, 124, 125.
provided for by certain constitutions, 125.
this means an ordinary jury of twelve, 125.
right to, in summary proceedings, 131.
no right to, in suits for violation of city ordinances, 131, 196.
when right exists in appellate court, 132*
L.
LAND (see EMINENT DOMAIN; SPECIAL ASSESSMENTS).
LEGISLATIVE CONTROL —
the general rule, 22.
as applied to counties and townships, 22.
limited application to municipal corporations, 23.
dual character of municipal corporations, 23.
in matters of governmental nature, 23.
private or corporate powers, 23.
local self-government, 24.
control over municipal charters, 26.
charters are not contracts, 26.
•when corporation is a trustee, 26.
may submit proposed amendments to the people, 26.
public property, control over, 26.
property acquired by eminent domain, 26.
highways, use of may be regulated by legislature, 27.
municipality has no property interest in street, 27.
control may be transferred to park commissioners, 28.
may withdraw ferry franchise, 28.
over private property of corporation, 28.
over property when corporation is dissolved, 29.
over public officers, 29.
police officials, 30.
may control their appointment and payment, 30.
344 INDEX.
References are to pages.
LEGISLATIVE CONTROL (continued) —
municipal board of police, 31.
over park commissioners, 31.
over board of public works, 31.
over board of water commissioners, 31.
officers to lay out streets, 32.
the may.or, 32.
over the funds and revenues, 33.
over contracts, 34, 35, 45, 46.
rights of persons contracting with corporation, 35.
right of a creditor entitled to a tax, 35.
changes in manner of levying the tax, 35.
effect of exempting property, 35.
over a sinking fund, 36.
amount of municipal indebtedness, 36.
may impose certain obligations on the corporation, 37.
when for a public purpose, 37.
compulsory taxation, 38.
may not be imposed for a local corporate purpose, 39.
cannot be compelled to subscribe for work in a private corporation, 39.
payment of a justrdebt, 39.
control over boundaries, 41.
may annex contiguous territory, 41.
may not annex non-contiguous lands, 41.
may delegate the power to municipality, 42.
illustrations of annexation, 43.
may provide for apportionment of property and debts upon division of
territory, 44.
control over municipal courts, 130.
LEVY OF SPECIAL TAX —
compelled by mandamus, 318.
LIABILITIES (see CONTRACTS; TORTS).
LICENSEES (see NEGLIGENCE) —
liability of corporation for acts of, 298.
LICENSES (see ORDINANCE; LIQUOR TRAFFIC; NEGLIGENCE) —
power to license, 89, 214
when implied, 90.
as tax on police power, 89.
object of, under police power, 90.
amount of fee, reasonableness, 90, 207, 208.
occupations which may be licensed, 91.
must be no discrimination in granting, 91, 208.
for market privilege, 92.
acts of licensee, liability for, 298.
LIQUOR TRAFFIC (see ORDINANCE) —
regulation of, by ordinance, 209.
sales limited to certain districts, 209.
INDEX. 3±5
References are to pages.
LIQUOR TRAFFIC (continued) —
district cannot be determined by mayor, 214
druggists forbidden to sell, except for medical purposes, 209.
consent of freeholders within three miles of place of business, 209, 214.
closing saloons at certain hours, 209.
closing during church hours, 209.
license, power to grant cannot be delegated to mayor, 214,
LOCAL ASSESSMENTS (see SPECIAL ASSESSMENTS).
LOCAL-OPTION LAWS, 54.
LOCAL SELF-GOVERNMENT —
under legislative control, 24
protected by constitutional provisions, 24
protected by decisions under certain constitutions, 24
tendency toward encroachment on, 24, n.
M.
MAJORITY, 221.
MANDAMUS—
nature of the writ, 316.
an extraordinary legal remedy, 316.
•when will issue, 316.
not to govern official discretion, 317.
to enforce duties toward creditors, 317.
when creditor has right to levy on property, 318,
judgment as a condition precedent to issue, 318.
rule in federal courts, 318.
when in nature of an execution, 318.
to compel levy of a tax, 318.
defense against, 318.
confers no new authority, 318.
to compel payment of officer's salary, 319.
the levy of an assessment, 319.
admission to an office, 319.
the holding of an election, 319.
further illustrations of its use, 319, 320.
not, as a rule, the remedy to try title to office, 256, 319.
to compel use of certain text-book, 83.
to compel letting of contract to lowest bidder, 78.
MANNER OF EXERCISING POWER (see ORDINANCE) —
when determined by charter, 176.
statutory directions must be observed, 177.
when no mode prescribed, 178.
by ordinance or by-law, 178, 179.
MARKETS —
definition of, 92.
power to establish and regulate, 92, 209, 216.
346 INDEX.
References are to pages.
MARKETS (continued) —
under supervision of police, 92.
requirement of license for keeping, 92.
prohibition of sales of articles during certain hours, 92, 209.
cannot require producers to sell their produce from market stalls, 93.
MAYOR (see OFFICES AND OFFICERS) —
right to preside over council, 220.
right to vote, 239.
to appoint to office, 224.
general executive head, 239.
mayor's court, 239.
right to compensation for services as lawyer, 239.
right to examine books of city officials, 239.
MEETING —
of corporation, 219.
essentials of valid, 219.
notice of, 219.
of common council, place of, 221.
MISDEMEANOR —
to vote for increase of salary, 237.
MOB (see NEGLIGENCE).
MOTIVE OF COUNCIL —
power of courts to consider, 193.
MULTIPLICITY OF SUITS —
as basis of equity jurisdiction, 322.
MUNICIPALITY —
the English municipality, 13, 14
its origin and history, 13.
organization, 13.
the American municipality, 15.
its history, 15.
MUNICIPAL CORPORATIONS —
definition, 5.
counties, when municipal corporations, 5.
school district, when, 6, 7.
creation of, 17.
by the United States, 18.
by prescription, 20.
by implication, 19.
by territorial legislature, 19.
manner of legislative action, 20.
boundaries, 21.
name, 21.
dual nature of, 23.
INDEX. 34:7
References are to pages.
MUNICIPAL COURTS (see JURY TRIAL: COURTS; JUDICIAL OFFICERS) —
power of municipal corporation to establish, 130.
duty on corporation, 130.
control of legislature over, 130.
jurisdiction, 130.
court cannot sit outside of city limits, 130, n.
qualification of judge and jurors, 131.
procedure of a summary nature, 131.
right to jury trial, 131.
N.
NAME —
of corporation, 21.
NEGLIGENCE (see TORTS) —
distinction between governmental and corporate powers, 267, 268.
increase of liability by contract, 274.
general rules, 275.
in performance of solely governmental duties, 276.
when acting as agent of the state, 276.
failure to exercise a power, 277.
neglect to enforce an ordinance, 277.
acts done under suspended ordinance, 277.
explosion of fireworks, 278.
cattle running at large, 278.
acts of a mob, 278.
action given by statute, 278.
acts of police officers, 279.
failure to prevent fires, 280, 289.
destruction of property to prevent spread of fire, 281.
acts of firemen, 282.
negligent handling of fire apparatus, 282.
negligent driving, 283.
negligence of fire patrol, 283.
further illustrations, 283.
negligence of members of board of health, 283L
negligence of health officers, 284
care of hospital, 284.
care of prisoners, 284
for injuries to prisoners, 284
care of the poor, 285.
care of public school buildings, 285.
solely corporate duties, 285.
liable for negligence in some manner as individuals, 286.
as owner of property, 286.
in management of a market, 286.
in management of public building leased for profit, 286.
in connection with management of poor farm, 286.
condition of lot owned by city, 286.
34:8 INDEX.
References are to pages.
NEGLIGENCE (continued) —
in management of a cemetery, 286.
condition of a wharf, 287.
defective machinery in a public work-house, 287.
when manufacturing and selling gas as an individual, 287.
in supplying water, acts in governmental capacity, 287, 288.
condition of water-box and mains, 288.
in case of highways, 290.
authorities conflicting as to liability of municipalities, 290, 291.
rule in New England states, 291.
the English rule, 291.
liability of public gwcm-corporations, 292.
duty governmental, 293.
distinction between liability of municipal corporation and counties
and towns, 293.
exceptions to the general rule, 293.
when duty is imposed on certain officials, 293.
extent of duty to care for highways, 293, 294, 301.
reasonable care required, 293.
street must be public, 293.
entire width of street must be safe, 294
rule as to country roads, 294.
lighting of the streets, 294.
failure to light as evidence of negligence, 295.
necessary obstructions allowed, 295.
illustrations of such obstructions, 295, 296.
things having a tendency to frighten horses, 297.
when obstruction placed by an individual, 297.
basis of right of action against city, 297.
lack of funds to repair, 298.
duty of corporation when no funds, 298.
acts of licensees, liability for, 298.
distinguished from mere failure to act, 298, 299.
when granted without authority, 298.
where acts are admittedly dangerous, 298.
sidewalks, care of, 299.
when constructed by individual, 299.
duty cannot be shifted to lot-owner, 299, 300, 303.
owner liable for his own acts of negligence, 300.
inspection of sidewalks, 300.
natural decay of material, 301.
corporation not an insurer of safety of sidewalks, 301.
what are defects in sidewalk, 301.
guards for cellar-ways, 301.
awnings, signboards, etc., 302.
ice and snow, 302.
rule affected by climate of locality, 302.
mere slipperiness not a defect, 302.
INDEX. 349
References are to page*.
NEGLIGENCE (continued) —
when accumulated in ridges, 302.
snow in country road, 302.
care of bridges, 303.
reasonable care required in construction and care of, 304,
need provide for ordinary weights only, 304*
notice of defect necessary to liability, 304.
actual or constructive notice, 304.
construction and care of public buildings, 306.
in construction of public works, see ch. XVIIL
collection and discharge of surface water, 308.
NEGOTIABILITY —
of bonds, 148.
of warrants, 145.
NON-RESIDENCE —
discrimination against, 91, 208.
NOTICE —
of corporate meeting. 219, 220.
in condemnation proceedings, 125.
of claim against corporation, 315.
in proceedings to levy special assessments, 109, 110.
manner of giving, 125.
by advertisement, 125.
by whom given. 125, 126.
statement of general rule, 126.
of defective condition of highway, 304.
actual or constructive, 304, 305.
NUISANCES (see POLICE POWER) —
what are, 297.
power to abate, 88.
must be an actual nuisance, 88.
merely saying a thing is a nuisance not sufficient, 88.
judicial determination ordinarily required, 88.
must depend upon circumstances, 89.
remedy by indictment or injunction, 89.
o.
OATH —
condition precedent to entry on office, 226.
effect of failure to take, 226.
form of, 226.
OBSTRUCTIONS IN STREETS, 98.
OCCUPATIONS —
licensing of, 91.
350 INDEX.
References are to pages.
OFFICIAL BOND —
time of filing, 226.
condition precedent to entry in office, 226.
effect of failure to file, 226.
OFFICES AND OFFICERS —
various kinds of officers, 29.
distinction between state and municipal officers, 29.
public officials, state officers, 30.
control of legislature over appointment, 30.
the mayor a municipal officer, 32.
a state officer within certain constitutional provisions, 32.
members of hoard of public works, 3],
park commissioner, control over, 31.
who are, 223.
mere financial agents, 223.
president of city council, 223.
members of detective department, 223.
distinction between municipal and state, 29, 223.
relation to corporation, 227.
must not make a personal profit out of his position, 228.
election and appointment of, 224.
power to appoint, 224.
qualifications of, 224.
alien, 224
non-resident, 224.
women, 224.
property qualifications, 225.
membership in political party, 225.
preference to veterans, 225.
conditions precedent to entering on office, 226.
acceptance, 226.
taking an oath, 226.
effect of failure to take oath, 226.
form of oath, 226.
filing a bond, 226.
effect of failure to file bond, 226.
time of qualification, election or entry on office, 226.
incompatible offices, 228.
what are, questions for the courts, 229.
cannot hold, common-law rule, 228, 229.
lucrative offices, 229.
illustrations of compatible and incompatible offices, 230, 231.
de facto officers, 231, 234.
reputation of, essential, 234.
when acts of, are valid, 232.
must be a dejure office, 232.
officer appointed under unconstitutional act, 232.
one elected at illegal election, 234
IXDEX. 351
References are to page*.
OFFICES AND OFFICERS (continued) —
lack of necessary qualification, 234.
when no confirmation, 234.
compensation, 234.
governed by statute, 234.
under legislative control, 234.
recoverable in action, 236.
no implied- right to, 234
no compensation for extra services, 235.
of de facto officers, 235.
salary follows legal title, 235.
not recoverable by de facto officer, 236.
office may be abolished, 236.
remedy of dejure officer after salary paid to de facto cfficer, 236.
increase of salary, 237.
compensation of employees, 237.
of attorneys, 237.
the mayor, see MAYOR.
judicial control over officer, 240.
over discretionary acts. 240.
over common council, 240.
holding over by officer, 241.
when successor is without legal qualification, 241.
when failure to elect successor, 241.
resignation, 241.
common-law rule, 241, 242.
acceptance of resignation, 242L
amotion, 242.
disfranchisement, 242.
common ground for removal, 243.
removal incident to power of appointment, 243.
where incumbent holds for fixed term, 244
power of removal, whether judicial, 245.
right to hearing on charges, 244 245.
elective officers, 244
when term of office is fixed by constitution, 246.
non-elective officers, control of legislature over, 244
power of governor to remove, 245.
temporary suspension, 245.
misconduct, what is, 246.
effect of a legal amotion, 246.
personal liability of officers on contracts, 246.
both officer and corporation may be liable, 246.
liability in tort, 247.
when charged with discretionary power, 247.
liability of ministerial officer, 247.
no liability for breach of public duty, 248.
officers acting judicially, 248.
352 INDEX.
References are to pages.
OFFICES AND OFFICERS (continued) —
illustrations of such, 248. 249.
distinction between liability of judges of superior and inferior court,
249.
liability of recorder of deeds, 249.
sheriff, 251.
highway officer, 252.
member of board of health, 253.
supervisors, 253.
clerk of court, 253.
inspector of meats, 253.
liability for loss of public funds, 253.
conflicting rules, 253, 254.
jfficer liable absolutely, 253.
liable for results of negligence, 253, 254,
tendency of authorities, 255.
manner of trying title to office, 255, 256.
ORDINANCE —
definition, 176.
nature of an ordinance, 195.
when a general law, 195.
contracts made with reference thereto, 195.
binding on all within limits, 195.
procedure in enactment of, 177, 196.
police ordinances gwcm-criniinal law, 196.
when may be determined by council, 178.
no right to jury trial, 196.
general acts should be by ordinance, 178.
are legislative acts, 178.
must act by, when, 179.
form of, 181.
the title, 181.
constitutional provision as to title of statutes, 181.
the enacting clause, 182.
when necessary, 182, n.
penalty, 182.
must be reasonable, 182.
discretion of court as to, 182.
provision for forfeiture of a license on conviction, 183.
not a part of the penalty, 183.
necessity for recitals in ordinance, 183.
must be enacted at legal meeting of council, 184.
introduction of, 184.
provisions for reading before final passage, 184
suspension of rules, 185.
presumption that meeting of council was regular, 184.
signing by clerk, 184.
signature of mayor, 184.
IXDEX. 353
References are to pages.
ORDINANCE (continued) —
requirement that bill shall be signed in open session, 186.
executive approval, 186.
must be in manner provided for, 186, 187.
the executive veto, 187.
publication, 188.
notice not the equivalent of publication, 188, 190.
when publication directory, 188.
illegal debts incurred for publication, 189.
manner of publication, 189.
designation of paper, 189.
paper " printed or published in the city," 189.
place of printing, 189, 190.
manner and sufficiency of publication, 190.
time and period of publication, 190.
proof of publication, 191.
validity of ordinances, 192 (treated in ch. XIII).
ordinances enacted under express power, 193.
motives of council, 193.
acts impeachable for fraud, when, 193.
may be valid in part, 194.
good and bad parts must be distinct, 194
valid as to certain persons only, 194, 205.
as to certain sales, 194.
prosecution under, in name of state, 196, n.
injunction against enforcement of invalid ordinance, 197.
validity, general principles, 198.
must conform to charter, 198.
must be constitutional, 198.
must conform to law, 199.
must not contravene common right, 200.
must be general and impartial, 201.
must not be oppressive, 201.
must be reasonable, 202.
reasonableness, a question for the court, 202.
presumption of reasonableness, 203.
pipes, laying of in street between certain dates, 204
locating vehicles on certain streets, 204
speed of vehicles, 204, 205.
driving by members of salvage corps, 205.
handling of trains over streets and crossings, 205, 206.
limiting speed of trains within limits, 205.
boys getting on moving trains, 206,
regulation of street railways, 206.
reports of passengers, 206.
parades and speaking in streets, 206, 207.
a music, 206.
regulated, not prohibited, 208.
23
354
IXDEX.
References are to pages,
ORDINANCE (continued) —
arbitrary discretion of officials, 206, 207.
fixing license fees, 207, 208.
discrimination against non-residents, 208.
regulation of liquor traffic, 208.
fire regulations, 210.
quarantine regulations, 210.
regulation of second-hand clothing business, 210.
hotel runners and hackmen, 211.
smoking in street-cars, 211.
removing snow from sidewalk, 211.
closing restaurants at certain hour, 211.
reporting names of boarders, 211.
reports by pawnbrokers, 211.
shutting off gas or water for non-payment of rent, 213.
garbage, manner of removal of, 212.
prohibiting certain persons from frequenting saloons, etc., 2121
validity dependent upon consent of officials, 212.
when an improper delegation of authority, 214
classification of such ordinances, 212.
decisions sustaining such ordinance, 212.
when dependent upon nature of act, 215.
beating drums in street, 213.
consent of residents to issue of saloon license, 214.
prohibiting repair of wooden building, 218.
conditions imposed must be general and uniform, 212.
unjust discrimination, 212.
act of officer must be governed by general rules, 216.
suspension of, 277.
ORNAMENTAL USE (see EMINENT DOMAIN) —
taking land for, 122.
P.
PARADES—
right to use street for, 206, 216.
ordinance requiring consent of official, 216,
PARK COMMISSIONERS —
may be given control of streets, 26.
PARKS —
as corporate property, 134, 135, n.
use of, for public meetings, 207.
PAUPERS —
care of, 94
PAVEMENT —
a local improvement, 111.
INDEX. 355
References are to pages.
PAWNBROKERS —
may be required to pay a license, 91.
may be required to report business done, 211.
PAYMENT —
manner of, in condemnation proceedings, 128,
PENALTY (see ORDINANCES) —
provided in ordinances, 182.
revocation of license as part of, 183.
PERSONAL LIABILITY —
of public officers, 249 et seq.
for local assessment, 117, 118.
PLAN OF PUBLIC WORK (see SEWERS; NEGLIGENCE) —
negligence in adoption of. 309.
POLICE OFFICERS (see NEGLIGENCE; OFFICERS; LEGISLATIVE CONTROL).
POLICE POWER (see LICENSES; MARKETS; HABITUAL DRUNKARDS;
NUISANCES) —
nature and scope of, 83.
to what extends, 84
limitations upon, 84
discretion of body exercising, 84
regulation of occupations and amusements, 85.
harmless business cannot be prohibited, 85.
certain occupation, illegal per se, 85.
regulation of liquor business, 85.
the protection of health, 86.
slaughter-houses, regulation of, 86.
burial of the dead, 86.
care of sinks and cesspools, 86.
quarantine regulations, 86.
artesian water, 87.
prescribed standard for articles of food, 87.
destruction of dead trees, 87.
requirement that samples of milk be furnished for inspection, 87.
dealing in second-hand clothing, 87, 88.
nuisances, 88.
abatement of, 88.
must be a nuisance in fact, 88.
depends upon circumstances, 89.
regulation of wharves, 89.
licenses, 89.
may be as tax or under police power, 89.
amount of, under police power, 89.
regulation of markets, 92.
prevention of fires, 93.
fire limits, 93.
destruction of buildings, 93.
care of indigent and infirm, 94, 95.
treatment of habitual drunkards, 94, 95.
356 INDEX.
References are to page*.
POPULATION —
as a basis of classification, 58, 59.
POWERS (see CONTRACT; CORPORATE POWERS; EXCLUSIVE FRANCHISES;
EMINENT DOMAIN; POLICE POWER; TAXATION; SPECIAL ASSESS-
MENTS) —
distribution of, 218.
classification of powers, 67.
derived from charter, 67.
cannot be increased or diminished by the corporation, 68.
judicial comment on theory of corporate powers, 68.
construction, 69.
usage not a source of power, 70.
powers requiring exercise of discretion cannot be delegated, 70.
ministerial powers may be delegated, 70.
illustrations, 70, 71.
manner of granting power to corporations, 72.
practice of enumerating powers granted, 72.
powers commonly granted, 73.
statutory requirement as to manner of exercising power, 73.
exercise of, beyond corporate limits, 74
authority over drainage system, 74.
inspection of dairy herd, 74.
to enact ordinances, 74.
under general welfare clause, 75.
to contract, 75.
cannot by contract limit legislative power, 76.
powers of a private nature, 76.
to revoke a contract, 76.
to enter into contract which would create a nuisance, 76.
to revoke a contract, 76.
to ratify contract, 76.
letting of, to lowest bidder, 76.
remedy of bidder, 78.
contract for term of years, 79.
exclusive privileges, 80.
to borrow money, 81.
to compromise a claim, 82.
to arbitrate a claim, 82.
of school board as to text-books, 82.
to acquire site for market, 93.
PRESCRIPTION —
creation of corporation by, 20.
PRESENTMENT —
of warrant, 146.
PRIVATE CORPORATION —
how created, 2.
for benefit of members, 2.
INDEX. 357
'References are to pages.
PRIVATE POWERS (see CORPORATE POWERS).
PRIVATE PROPERTY —
municipal corporations may own property, 38.
governed by private laws, 28.
not subject to legislative control, 28.
cannot be taken for a park without compensation, 28.
PRIVATE ROADS, 12L
PROCEEDINGS —
in taking property for public use, 124
to enforce municipal ordinance, 131, 132.
to levy special assessment, 109.
to remove an officer, 224, 225.
PROPERTY —
definition of, 12a
what is, in law of eminent domain, 123.
appropriated to public use, 122.
right of corporation to hold, 133.
PUBLICATION (see ORDINANCES) —
of ordinances, 188.
PUBLIC CORPORATIONS —
created for public purposes, 2.
classification of, 4
includes public gwasi-corporations, 4
municipal corporations, 4
includes territory and inhabitants, 4
PUBLIC FUNDS (see OFFICE) —
liability of officer for loss of, 284
PUBLIC PROPERTY (see NEGLIGENCE) —
subject to control of legislature, 26.
includes what, 26.
on division of corporation, 44 See BOUNDARIES.
negligence in case of, 306.
condition of public building, 307.
dangerous condition of school building, 306.
PUBLIC QUASI-CORPORATIONS, 6.
Q.
QUALIFICATIONS (see OFFICERS) —
of officers, 224
of jurors in municipal court, 131.
QUARANTINE REGULATIONS (see POLICE POWER; HEALTH) —
proper police regulations, 210.
QUASI-PUBLIC CORPORATIONS, 6.
358 INDEX.
References are to paget.
QUORUM —
of council or other body, 221.
QUO WARRANTO —
nature of writ, 321.
discretion of judge, 322.
rules governing its issuance, 322.
proper remedy to try title to office, 321, 356.
on right to preside over a municipal body, 321.
whether corporation legally created, 321.
proceedings against one assuming to be an officer, 321.
the English practice, 321.
usurpation of franchise, proceeding in discretion of attorney-general,
322.
B.
RAILWAY CROSSINGS (see ORDINANCE) —
speed of train at, 205.
use of, during certain hours of day, 206.
RAILWAYS (see SERVITUDES; ROADS AND STREETS)—
in streets, 100.
as additional servitude, 104, 105.
ordinary street railway, 105.
electric street railways, 105.
poles of electric railways, 105.
elevated railway, as servitude, 106.
speed of trains, 205.
READING ORDINANCE, 184.
REASONABLENESS —
of ordinance, 202. See ORDINANCE.
RECITALS IN BONDS (see BONDS) —
effect of recitals, 163, 164.
authority of officers to make, 165.
that bonds have been issued " in conformity to law," 165, 166.
effect of on overissue of bonds, 167.
when facts are to be determined by records, 168.
RECORDER OF DEEDS (see OFFICER) —
liability of, 249.
performs duties to individuals, 249.
liability for failure to record deed correctly, 250.
liability for recording paper not entitled to record, 250.
liability for giving an erroneous certificate, 250.
REMOVAL (see AMOTION; OFFICER) —
of officers, 243.
RESIGNATION (see OFFICER)—
common rule as to, 241.
necessity for acceptance of, 243.
effect of, 242.
IXDEX. 359
References are to page*.
RESOLUTION —
distinguished from ordinance, 178.
council may act by, when, 178, 179.
illustrations, 179.
RESTAURANT —
time of closing, 21L
RIOT (see NEGLIGENCE).
ROADS AND STREETS (see RAILWAYS; SERVITUDES) —
control of legislature over, 27, 96.
may be delegated to corporation, 96.
given to cities, counties and towns, 97.
may be delegated to park commissioners, 26.
title to, in corporation in trust for public, 26.
right of people to use street, 96.
abutting owner, rights of, 97.
proper uses of, 97.
necessary obstructions, 98.
temporary uses of a street, 98.
moving buildings in, 98.
unloading cars, 98.
building material, 98.
improvement of, 99.
right to override rights of individual in, 99.
grading, 100.
laying of gas and water pipes, 100.
projecting door, windows and porches, 100, lOL
railroads in streets, 101.
right to authorize, 101.
ordinary commercial railroads, 101.
condition attached to grant of right to use street, 102, 103.
such as tend to preserve the street, 103.
consent of abutting owners, 102.
agreement to pay for same, 102,
location of tracks and telegraph poles, 102.
grants in, subject to police power, 102.
right of one railway to use rails of another in street, 102.
express authority to authorize placing of telegraph poles in, 104
additional servitude, 104
railways as such, 104, 105.
telegraph and telephone poles as servitude, 106.
telephone poles along a country highway, 106.
right of abutting owners to compensation, 104
s.
SALARY (see COMPENSATION; OFFICER).
SCHOOLS (see SCHOOL BOARDS) —
compulsory support of, 38.
support of. a public purpose, 152.
360 INDEX.
References are to pages.
SCHOOL BOARDS "(see TEXT-BOOKS) —
powers of, purely statutory, 82.
may prescribe text-books, 82, 83.
use of Bible in schools, 83.
may prescribe health regulations, 83.
vaccination, 83.
SCHOOL BUILDINGS (see PUBLIC BUILDINGS; NEGLIGENCE)-
dangerous condition of, liability for, 306.
SCHOOL DISTRICT (see PUBLIC SCHOOLS) —
description of, 7.
powers of, 7, 8.
existence shown by prescription, 20.
SCREENS AND WINDOW BLINDS —
requirement of in saloons, 91.
SECOND-HAND CLOTHING —
regulating sale of, 210.
SECURITIES (see BONDS; WARRANTS).
.SERVITUDES (see ROADS AND STREETS)—
right of abutting owners, 104.
railways as additional servitudes, 104.
ordinary street railways, 105.
electric railways, 105.
poles of electric railways, 105.
surface railway operated by steam motors, 106.
elevated railways, 106.
telegraph and telephone poles, 106.
location of the fee as test, 106.
telephone poles along country highway, 100.
SEWERS (see NEGLIGENCE) —
failure to construct, no liability, 308.
determination to construct, a governmental act, 309.
adoption of plan of, 309.
must exercise care in, 309.
selection of engineers, 310.
adoption of reasonably adequate system, 310.
maintaining inadequate sewer, 310.
when results in direct injury to property, 310.
negligence in construction, 312.
in maintenance, 312.
consequential damages resulting from public works, 313.
change of grade of street, 313, 314.
removing natural support of land, 314.
SIDEWALKS, 300 —
see NEGLIGENCE; ROADS AND STREETS.
SINKING FUND —
contract rights in, 36.
as affecting indebtedness of corporation, 172.
LSDEX. 361
Reference* are to page*.
SNOW —
removal of, from sidewalks, 211, 302.
in country highway, 303.
SPECIAL ASSESSMENTS, 107.
see TAXATION.
a form of taxation, 108.
power to authorize, 108, 109.
constitutionality of, 109.
corporation has no implied power to levy, 108.
theory of, 108, 109.
distinguished from eminent domain, 109.
purpose for which levied, 110.
due process of law, 109.
what required for, 109.
the proceeding, notice, etc., 110.
right of appeal, 110.
ordinary element for valid tax, 110.
must be a special local benefit, 110.
not a work of general benefit, 114
improvement must partake of permanent nature, 111.
sprinkling streets, 111.
maintaining boulevards and pleasure-ways, 111.
grading a street, 111.
paving, 111.
constructing sidewalk, 111.
sprinkling. 111.
constructing drains, 111.
sewers and culverts, 112.
laying water pipes, 112.
apportionment, methods of, 112.
by benefits, lia
determination of benefits by commissioners, 113.
impeachable for fraud and manifest mistake only, 113.
the frontage rule, 114.
not applicable to farm or suburban property, 114.
levied upon property exempt from taxation, 115.
illustrations, 115, 116.
manner of collecting assessments, 116, 117.
when made by city, liability, 116, 117.
acceptance of work by city, conclusive as against property owner, 117.
personal liability of property owner, 117, 118.
the prevailing rule, 117.
STATUTE OF LIMITATIONS —
municipal warrants, 148.
STREETS (see ROADS AXD STREETS).
STREET RAILWAYS (see ORDLSAXCES) —
regulation of, 206.
conditions imposed on, 102.
362 INDEX.
References are to pages.
STREET RAILWAYS (continued) -
provide driver and conductor on each car, 206
reports of number of passengers, 206.
SURFACE WATER —
common-law rule in respect to, 307.
the civil-law rule, 309.
control over natural water-ways, 308.
discharge of, on land of individual, 308, 310.
as affected by change of grade, 309.
T
TAKING—
what constitutes a, 123, 314
TA^IZ,(W7SPECI^ ASSESSMENTS< ILL^ TAXES)
may be delegated to public corporation, 110
implied authority, 110.
exemption from, 35, 108
to speoial
revocable, 110.
special assessment; form of taxation, 108
TELEGRAPH AND TELEPHONE POLES 1
when servitude on street, 106.
TERRITORIAL LEGISLATURE -
power to create corporation, 19.
TERRITORY (see BOUNDARIES).
TEXT-BOOKS —
may be prescribed by school boards, 83.
by the legislature, 82.
by school board commission, 82.
use of Bible as a text-book, 83.
THEATERS —
license for, 91.
policeman at, 211.
TITLE TO OFFICE —
manner of trying, 255.
by certiorari, 255.
by quo warranto, 256.
TORTS, LIABILITY FOR (see NEGLIGENCE) -
governed by nature of power or duty, 267
tmction between governmental and corporate powers 267
when exercising discretionary power, 268.
when duty imposed or assumed, 268.
liability for acts of agents, 269, 271. '
IXDEX. 363
References are to pages.
TORTS, LIABILITY FOR (continued) —
rule of respondeat superior, 269.
officers performing duties of corporation, 269.
acts of independent boards, 269, 270.
acts of officers under control of boards, 269.
acts of a contractor, 270.
ultra vires torts, no liability for, 271.
construction of a dam without authority, 272.
acts of officers under void ordinance, 272.
under unconstitutional statute, 272.
acts done under claim of authority, 272.
ratification of ultra vires torts, 274
TOWN MEETING —
character, 11.
organization, 11.
officers, 11.
franchise, 11.
history, 11, n.
TOWNS (see NEGLIGENCE).
TOWNSHIPS —
history, 10.
an administrative unit, 10.
growth, 12.
TRIBUNAL (see COURTS; MUNICIPAL COURTS).
TROLLEY CAR SYSTEM, 105.
TRUSTEE —
when corporation is a trustee, control of legislature, 2&
power to hold property as trustee, 26, n.
u.
ULTRA VIRES (see CONTRACTS; TORTS) —
the general doctrine, 258.
its proper scope, 258, n.
modification, 258, 259.
by doctrine of estoppel, 259.
when contract is within scope of general power, 260.
contract in part ultra vires, 261.
modified by doctrine^of implied contract, 262.
ultra vires torts, 271, *274
UNCONSTITUTIONAL STATUTE —
construction of dam under authority of, 274k
UNIFORMITY —
of legislation, 50.
uniform operation of laws, 51.
36i INDEX.
References are to pages.
V.
VACCINATION —
power of school board to compel, 83.
VETERANS —
preference, appointment to office, 225.
VETO (see ORDINANCE) —
of ordinance, 187.
w.
WARRANTS (see ch. IX) —
definition, 144
power to issue warrants, 144, 145, 148.
form of, 145.
not negotiable instruments, 145.
presentment and demand, 146.
duty of holder, 146.
payable out of particular fund, 147.
rights of indorser, 147.
same as those of original holder, 147.
payment extinguishes the debt, 147.
cancellation, 148.
re-issued warrant void, 147.
defense of ultra vires, 148.
authority of officer issuing, 148.
statute of limitations, 148.
cannot be discounted, 145.
WATER —
may be stopped for non-payment of dues, 212.
WATER-WAYS (see SURFACE WATERS).
WATER AND LIGHTING —
power to light the streets, 136, 138, 139.
manner of providing water and lights, 136, 141.
power to regulate franchise companies, 136.
regulation of rates, 136, 137.
power to own plants, 137, 138, 140.
right to supply water beyond limits, 139
acquisition of plant, 140.
as against a company having an exclusive franchise, 140.
reservation of right to purchase plant, 140.
right to condemn plant, 141.
contracts with franchise companies, 141, 142.
grant of special privileges may be contract, 142.
construction of such a grant, 142, 143.
WHARVES —
legislative authority to maintain, 135.
right to collect toll, 135.
nature of municipal rights in, 135.
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