T cnnUnu. /913 THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW HORNBOOK CASE SERIES ILLUSTRATIVE CASES ON MUNICIPAL CORPORATIONS By ROGER W. COOLEY, LL.M. Professor of Law, University of North Dakota Adthor of "Briefs on the Law of Insurance," "Law of Municipal Corporations' "Illustrative Cases on Persons and Domestic Relations," "Illustrative Cases on Damages," "Illustrative Cases on Insurance " and "Illustrative Cases on Sales " A COMPANION BOOK TO COOLEY ON MUNICIPAL CORPORATIONS St. Paul, Minn. WEST PUBLISHING CO. 1913 COPTEIGHT, 1913 BY WEST PUBLISHING COMPANY (CooLEY Cases Mun.C.) r 1913 THE HORNBOOK CASE SERIES It is the purpose of the publishers to supply a set of Illustrative Casebooks to accompany the various volumes of the Hornbook Series, to be used in connection with the Hornbooks for instruction in the classroom. The object of these Casebooks is to illustrate the prin- ciples of law as set forth and discussed in the volumes of the Horn- book Series. The text-book sets forth in a clear and concise manner the principles of the subject; the Casebook shows how these princi- ples have been applied by the courts, and embodied in the case law. With instruction and study along these lines, the student should se- cure a fundamental knowledge and grasp of the subject. The cases on a particular subject are sufficiently numerous and varied to cover the main underlying principles and essentials. Unlike casebooks prepared for the "Case Method" of instruction, no attempt has been made to supply a comprehensive knowledge of the subject from the cases alone. It should be remembered that the basis of the instruc- tion is the text-book, and that the purpose of these Casebooks is to illustrate the practical application of the principles of the law. West Publishing Company. (iii)* 72923:i TABLE OF CONTENTS CORPORATIONS— PUBLIC AND PRIVATE Page I. Pul»lic Corporatious — Classification 1 II. Municipal Corporations — Distinguishing Elements 4 CREATION OF MUNICIPAL CORPORATIONS I. Power to Create Municipal Corporations — Delegation of Power. . 12 IT. Legislative Discretion 15 III. Legislative Power — How Exercised 16 1. Self-Chartered Cities 16 IV. Territory and Population 20 V. Assent to Incorporation ,. 24 VI. Corporations by Implication or Prescription 25 VII. Validity of Incorporation — De Facto Corporations 30 VIII. Validity of Incorporation — How Tested , 31 IX. Operation and Effect of Incorporation 33 LEGISLATIVE CONTROL I. Legislative Control in General 36 II, Offices and Officers 45 III. Public Funds and Revenues 45 IV. Obligations Imposed by Legislature 49 V. Public Thoroughfares 57 ALTERATION AND DISSOLUTION I. Territorial Increase or Decrease 61 1. In General 61 2. What Territory may be Annexed 67 II. Consolidation 71 III. Operation and Effect of Annexation, Division or Consolidation.... 74 IV. Repeal of Charter and Dissolution S!) V. Reincorporation 03 THE CHARTER L Municipal Powers — Inherent — Express — Implied 07 1. In General 07 2. General Welfare Clause 100 II. Exercise of I'owers 108 PROCEEDINGS AND ()KI»I NANCES I. The Governing Rody 114 1. Dc F:ut(i Council 114 IT. Mode of Action JK! III. Mcclings 110 IV. Onliniinccs — Mode of Eiiactnicnt 122 CooLEY Cases Mun.C. (v) Vi TABLE OF CONTENTS Pagp V. Essentials of Valid Ordinance 129 1. Must Not he Oppressive 129 2. Must Not Contravene a Common Right l'i~ 3. Must Not he Unreasonahle 135 OFFICERS, AGENTS, AND EMPLOYES I. Elisihility 14G II. Appointment and Election 149 III. Officers De Facto 154 IV. Salary 158 V. Removal 161 VI. Personal Liability— Contracts 164 VII. Personal Liability— Torts 166 CONTRACTS I. Contracting Agencies 168 II. Mode of Contracting 170 III. Letting of Contracts 175 IV. Term and Duration of Contract — Power to Bind Successors 186 V. Ultra Vires Contracts 190 VI. Same — Ratification and Estoppel 196 VII. Implied Promise 199 IMPROVEMENTS I. General and Local Improvements Distinguished 202 II. Power to Make or Aid 206 III. Preliminary Proceedings 207 IV. Special Assessments 216 POLICE POWERS AND REGULATIONS I. Extent and Limitation of Power 231 II. Peace and Order 232 IIL Sanitation 235 IV. Safety 239 V. Occupations and Amusements 247 STREETS, SEWERS, PARKS, AND PUBLIC BUILDINGS I. Use of Streets 254 II. Abutting Owners 269 TORTS I. Governmental and Municipal Duties Distinguished 275 II. Care of Streets 281 III. Obstructions 288 IV. Sidewalks 290 V. Drains and Sewers 296 DEBTS, FUNDS, EXPENSES AND ADMINISTRATION I. Limitation of Indebtedness 299 II. Borrowing Money 303 III. Municipal Bonds — Power to Issue 309 IV. Rights of Creditors 319 TABLE OF CONTEXTS "^^^ TAXATION Page 325 I. Source of Power .^^^ II. Public Purpose Only ^.^ III, Subjects of Taxation ACTIONS 344 I. Mandamus 047 II. Quo Warranto * o^c) III. Certiorari 351 IV. Injunction QUASI CORPORATIONS 355 I. Distinguishing Elements ^^^ II. Counties 35'Y III. Torts 3g6 lY. County Bonds TABLE OF CASES Page Adams v. Diicate 338 Addiugton v. Littleton 279 Allen V. La Fayette 303 Askew V. Hale County 355 Bell V. Kirkland 190 Berlin v. Gorham 15 Blyhl V. Waterville 290 Board of Com'rs of Hamilton County V. Mighels 4, 355, 356 Boutte V. Emmer 1G6 Broadfoot v. Fayetteville 93 Broderick v. St. Paul 170 Broking v. Van Valen 25 Brown v. Bon Homme County. . 372 Buckley v. Tacoma 207 Chippewa Bridge Co. v. Durand 175 Citv Council of Augusta v. Bur- um 2&i City of Biddeford v. Yates 108 City of Chariton v. Simmons 232 City of Chicago v. Gunning Sys- tem 129 City of Crawfordsville v. Braden 100 City of Denver v. Coulehan 61 City of Duluth V. Krupp 250 City of Fergus Falls v. Fergus Falls Hotel Co 196 City of Guthrie v. Territory. . .30, 52 City of La Porte v. Gamewell Flre-Alarm Tel. Co 299 City of New Orleans v. Clark. .46. 52 City of Raleigh v. Ponce 206, 218 City of St. I'aul v. Chicago, M. & St. P. B. Co 259 City of Wal.asha v. Southworth 293 Claihorne County v. P.rooks 3(>6 Commonwealth v. Crowninshield 242 Coombs V. MafDnnald L'."',l Cunningham v. Seattle USO Diamond v. Mankato IS.'*, Dodge V. Memplils 317 Fry V. .Mhcmarle County 363 CooLEY Cases MuN.C. (i Page Garrabad, In re 135 Gray v. Burr 214 Green v. Cape May 99 Gutzweller v. Peoi)le 45 Hansen v. Hirsch 52, 57 International Trading Stamp Co. V. Memphis 351 Ivins V. Trenton 271 Jackson v. Greenville 281, 293 .Tewell Belting Co. v. Bertha 168 Johnson v. San Diego 83 Jones V. Clinton 286 Kansas City v. Lemen 275 Knobloch v. Chicago, M. & St. P. R. Co 245 Laugel V. Bushnell 235 Lawrence v. Ingersoll 149 Lawrence v. Toothaker 164 McAllen v. Ilamblin 97 Magneau v. PYemont 116, 119 Manning v. De\ils Lake .332 Markey v. Queens County 357 Maniuis v. Santa Ana 158 Merchants' Nat. Bank of St. Paul V. East Grand Forks 49 Merrill v. Monticello 309 Mills V. Williams 1, 355, 356 Mt. Pleasant v. Beckwith 74 Oliver v. Jersey City 154 Osborne v. Oakland 347. 354 Palmer v. Danville 202. 225 Payne v. South Siiringfield 20."'. Peojile V. Arnistmiig 141 Pcoiile V. Ilurliint 36,45 Pcoide V. Wagner 247 P.'I'ln V. Sage 89 Perkin.s v. Burlington 340 TABLE OF CASES Page Raymond's Estate v. Rutherford 210 Roche V. Jones 114 Kuuisey v. Sauk Ceutre o-'J St. Paul Gaslight Co. v. Sand- stone •>! Shapleigh v. San Angelo 319 Simon v. Northrnp 52,57 Smith V. Cruteher 24 State' V. Cincinnati 71 State V. Denny 4 State V. Bering 1.35 State V. Des Moines .325 State V. Duluth IGl State V. Gilbert 20 Srate v, Jolinson 239 State V. O'Connor 16 State V. Ray 132 State V. Simons 12 State V. Sullivan 146 Page Stevens v. Miller 344 Swindell v. State 122 Tate V. St. Paul 296 Taylor v. Waverly .341 Thunborg v. Pueblo 288 Tice V. Bay City 285 Town of Newport v. Batesville «& B. K. Co 106 Townsend v. Epstein 254 Vestal V. Little Rock 67 Village of Pillager v. Hewitt 199 Westminster Water Co. v. West- minster 186 Wilson, In re 116, 349 Zimmerman v. Metropolitan St. R. Co 269 HORNBOOK CASES ON MUNICIPAL CORPORATIONS CORPORATIONS— PUBLIC AND PRIVATE I. Public Corporations — Classification^ MILLS V. WILLIAMS. (Supreme Court of North Carolina, 1850. 33 N. C. 558.) Pearson, J. In 1816, the legislature established a county by the name of "Polk." In pursuance thereof justices of the peace were ap- pointed, courts organized, and a sheriff and other county officers elected, who entered upon the discharge of the duties of their respec- tive offices. In 1848 the act of 1846 was repealed, and the question is presented, has the legislature a right, under the constitution, to repeal an act, by which a county is established? From the formation of our state government, the general assembly has, from time to time, changed the limits of counties, and has, over and over again, made two counties out of one, so that in many in- stances, even the name of the old county has been lost ; and it would seem to an unsophisticated mind, that, where there is the power to make two out of one, there must be the corresponding power to make one out of two. In other words, as the legislature has, undoubtedly, the power to divide counties, where they are too large, that there is the same power to unite them, when they are too small; the power in both cases being derived from the fact that by the constitution "all legislative power is vested in the general assembly," which necessarily embraces the right to divide the state into counties of convenient size, for the good government of the whole. Political and other collateral considerations are apt to connect themselves with the subject of cor- porations, and thereby give to it more importance than it deserves as a dry question of law ; and the unusual amount of labor and learning. bestowed on it, has tended to mystify rather than elucidate the sub- ject. Divested of this mystery, and measured in its naked proportions, a corporati " is an artificial body, possessing such powers, and having 1 For dlscu.ssion of principles, see Cooley, Muu. Corp. §§ 4, 5. CooLEY Cases Mun.C— 1 ii CORPORATIONS — PUBLIC AND PRIVATE such capacities, as may be given to it by its maker. The purpose in making all corporations, is the accomplishment of some public good. Hence, the division into public and private has a tendency to confuse and lead to error in the investigation ; for, unless the public are to be benefited, it is no more lawful to confer "exclusive rights and privileg- es" upon an artificial body, than upon a private citizen. The substantial distinction is this : Some corporations are created by the mere will of the legislature, there being no other party inter- ested or concerned. To this body a portion of the power of the legis- lature is delegated to be exercised for the public good, and subject at all times to be modified, changed, or annulled. Other corporations are the result of contract. The legislature is not the only party interested ; for although it has a public purpose to be accomplished, it chooses to do it by the instrumentality of a second party. These two parties make a contract. The legislature, for and in consideration of certain labor and outlay of money, confers upon the party of the second part the privilege of being a corporation, with certain powers and capacities. The expectation of benefit to the pub- lic is the moving consideration on one side ; that of expected remunera- tion for the outlay is the consideration on the other. It is a contract ; and, therefore, cannot be modified, changed, or annulled without the consent of both parties. So, corporations are either such as are independent of all contract, or such as are the fruit and direct result of a contract. The division of the state into counties is an instance of the former. There is no contract, no second party ; but the sovereign, for the bet- ter government and management of the whole, chooses to make the division in the same way that a farmer divides his plantation ofif into fields and makes cross fences, where he chooses. The sovereign has the same right to change the limits of counties and to make them smaller or larger by putting two into one, or one into two, as the farmer has to change his fields ; because it is an affair of his own, and there is no second party, having a direct interest. A railroad is an instance of the latter. Certain individuals propose to advance capital, and make a road by which it is supposed, the pub- lic are to be benefited, in consideration that the legislature will incorpo- rate them into a company with certain privileges. The bargain is struck; neither party has a right to modify, change, annul, or repeal the charter without the consent of the other ; and (still to borrow an illustration from the farmer) he has in this case leased out his fields at a certain rent, and has no right to make one larger and another smaller, without the consent of his tenant. Roads furnish another familiar illustration : The county court has a public road laid out, and an overseer and hands appointed. It may be altered or discontinued by the county authorities, and the overseer and hands have no direct interest or right to be heard in the matter, PUBLIC CORPORATIONS — CLASSIFICATION o except as other citizens. But if the legislature, instead of acting by its agent, the county authorities, choose to make a contract with certain individuals, that, if they will raise funds and make a road, they shall be incorporated with the right to exact tolls, etc., then the road can- not be altered or discontinued without the consent of the corporation. When a county is established, it is done at the mere will of the legislature, because in its opinion the public good will be thereby pro- moted. There is no second party directly interested or concerned. There is no contract, for no consideration moves from any one, and without a consideration, there cannot be a contract. The discharge of certain duties by the persons, who are appointed justices of the peace, or sheriff, clerk, or constable, can, in no sense of the word, be looked upon as a consideration for establishing the county: In legal parlance, the "consideration is past" — the thing is done, before their appointment. Some act for the honor of the station, others for the fees and perquisites of office; but their so doing did not form a con- sideration for the erection of the county, and is a mere incident to their relation as citizens of the county. It was ingeniously argued that, upon the erection of a county, cer- tain rights attach by force of the constitution, as the right to have at least one member in the house of commons ; and as these rights are conferred by the constitution it is insisted that, having attached, it is not in the power of the legislature to take them away. The argument is based upon a fallacy. It is true, the constitution invests ever>' county with certain rights as incident to its existence as a county. But, by no sound reasoning, can the incident be made to override the principle; and the constitution, by conferring these in- cidental rights, cannot be by any fair inference made to interfere with the control of the legislature on the subject of counties, as instruments for the good government and management of the whole state. The constitution preordains these rights, but they are put expressly as incidents to the existence of counties ; and although they may very properly enter into the question of expediency, they have no legislative bearing upon the power to create and abolish counties as may to the wisdom of the legislature seem fit. Such statutes are not the result of contracts. There is no second party who pays a consideration, which is the essence of every contract. Terrett v. Taylor, 9 Cranch, 43, 3 L. Kd. 6.S0; Dartmouth College v. Woodward, 4 Wheat. 663, 4 L. Ed. 629; T'hillips v. lUiry, 2 Term R. 346. Judgment affirmed. 4 CORPOKATIONS — PUBLIC AND PRIVATE BOARD OF COM'RS OF HAMILTON COUNTY v. MIGHELS. (Supreme Court of Ohio, 1S57. 7 Ohio St. 109.) BrinkErhoff*, j 2 * * * por the purpose of maintaining this action, an effort has been made in argument to assimilate counties to natural persons and municipal and other corporations proper. * * * And it is freely admitted that if counties are in all ma- terial respects like municipal corporations proper, and may be fair- ly classed with them, then this action ought to be maintained. But how is the fact ? This question is vital, and on its solution the case must depend. As before remarked, municipal corporations proper are called into existence either at the direct solicitation or by the free consent of the people who compose them. Counties are local subdivisions of a state, created by the sover- eign power of the state, of its own sovereign will, without the par- ticular solicitation, consent, or concurrent action of the people who inhabit them. The former organization is asked for, or at least as- sented to, by the people it embraces ; the latter is superimposed by a sovereign and paramount authority. A municipal corporation proper is created mainly for the interest, advantage, and convenience of the locality and its people; a county organization is created almost exclusively with a view to the policy of the state at large, for purposes of political organization and civil administration, in matters of finance, of education, of provision for the poor, of military organization, of the means of travel and trans- port, and especially for the general administration of justice. With scarcely an exception, all the powers and functions of the county organization have a direct and exclusive reference to the general policy of the state, and are, in fact, but a branch of the general ad- ministration of that policy. Ward v. Hartford County, 12 Conn. 406; Boalt v. Commissioners, 18 Ohio, 16; Cincinnati, W. & Z. R. Co. v. Commissioners of Clinton County, 1 Ohio St. 89. * * * II. Municipal Corporations — Distinguishing Elements STATE ex rel. JAMESON v. DENNY. (Supreme Court of Indiana, 1889. 118 Ind. 382, ^1 N. E. 252, 4 L. R. A. 79.) Application for writ of mandamus. On March 19, 1889, there was filed in the office of the secretary of state what purports to be an act of the general assembly of the state of Indiana. The act pro- 2 Part of the opinion is omitted. 8 For discussion of principles, see Cooley, Mun. Corp. §§ 6, 7. MUNICIPAL CORPORATIONS — DISTINGUISHING ELEMENTS O vides for the establishment, in all cities in this state containing a population of 50,000 inhabitants or more, of a board of public works and affairs, to consist of three members selected from the two lead- ing political parties, one member of said board to hold his office for the period of two years from the date of his selection, and the other two members are to hold their offices for the period of four years. The members of such board must have been freeholders of the city at least one year prior to their election, and must have been bona fide residents of the city at least five years. Each member of such board is required to execute a bond in the sum of $20,000, to the approval of the mayor of the city, for the faithful performance of the duties of his office. The act abolishes all existing boards of public improvement and the office of street commissioner, and con- fers on the board of public works and affairs thereby created the power to perform all the duties heretofore conferred upon such board of public improvements and street commissioner. It also gives such board of public works and affairs full power to construct all streets, alleys, avenues, bridges, sewers, drains, ditches, culverts, sidewalks, and curbing, and to take charge of the cleaning, repair- ing* grading, and improving of the same ; and to make all contracts for the furnishing of lights for the streets, public buildings, and pub- lic places in the city, and for furnishing water for the city for every purpose. It has the exclusive power to employ such superintend- ents, laborers, or other persons as it may deem necessary for the exe- cution of its business, and fix their salaries and compensation. By the terms of said act the board of public works and affairs is to have the exclusive power and control over the construction, supervision, cleaning, repairing, grading, and improving all streets, alleys, ave- nues, lanes, bridges, drains, culverts, sidewalks, and curbing, and the lighting of such public places as may be deemed necessary in such city ; to fix and establish the grades of all streets and alleys, avenues and thoroughfares. It may order and construct the improvement of any street, alley, or thoroughfare in the city, where a majoritv of the property owners affected thereby do not remonstrate. It has the exclusive power to make all improvements and expenditures. Such board is entitled t\ These provisional governments grew out of a necessity made by the absence of legal authority. They were aggregations of people associated together for purpose of mutual benefit and protection. Without any statute law, they became a law unto themselves, and adopted the forms of law and government common among civilized people, and enforced their authority by the power of public sentiment. They had no legal existence ; they were nonentities ; they could not bind themselves by contracts, or bind any one else ; they were morally bound to make just recompense for that which they received in money, labor, or materials, but no such obligations could be enforced against them. The organic act furnished them a sovereign civil government, and supplied the authority for constituting de jure municipal corporations. Then they became and were de facto corporations until such time as they complied with the laws relating to incorporating villages, and became a de jure corporation. * * * VIII. Validity of Incorporation — How Tested ^* ST. PAUL GASLIGHT CO. v. VILLAGE OF SANDSTONE. (Supreme Court of Minnesota, 189S, 73 Minn. 225, 75 N. W. 1050.) Start, C. J.'^ This action was brought to recover the amount of twelve interest coupons cut from six bonds of the village of Sand- stone. * * * At the close of the evidence the trial court directed a verdict for the plaintiff for the amount claimed, and the defendant appealed from an order denying its alternative motion for judgment notwithstanding the verdict or for a new trial. The bonds in cjuestion are payable to bearer, and are issued under and by virtue of the provisions of Laws 1893, c. 200, for the pur- chase of a system of waterworks from the Sandstone Water Com- pany. * * ♦ The flefcndant's first claim is that the bonds arc not merely void- able, but absolutely void, for the rcasfju that the village had no I* Tor dlsfussloii of jiiinciplcs, .see Cooli-y, Mini. Coii). §§ lG-18. i"' I'art of the opinion is omitted. 32 CREATION OF MUNICIPAL CORPORATIONS power to issue them, and therefore they are void in the hands of the plaintiff, without reference to the question whether it is or is not a bona fide purchaser thereof. It is claimed that the village had no power to issue the bonds under any circumstances, because there is not, nor ever was, any village of Sandstone; that the statute (Laws 1885, c. 145) under which it attempted to organize as a municipal corporation is unconstitutional, for the reason that it delegates legis- lative functions to 30 private citizens ; and, further, that it contravenes article 111 of the constitution of the state distributing the powers of government. This statute, as construed in the case of State v. Village of Min- netonka, 57 Minn. 526, 59 N. W. 972, 25 L. R. A. 755, is constitu- tional. The legislature by the statute fixed, determined, and specified all the conditions and facts upon which the incorporation of certain territory should depend, and the powers of the municipal corporation so to be organized. The point here made, that the statute is uncon- stitutional because legislative functions were delegated to the 30 pe- titioners who are authorized by the statute to take the initiative in the organization of the village by presenting a petition to the county commissioners was made in the case of State v. Village of Minne- tonka, and was by necessary implication, if not directly, overruled; for it was held that discretion was not conferred upon the petitioners to arbitrarily determine how much and what territory should be in- cluded in the village. The legislature determined with practical cer- tainty what territory might be incorporated as a village under the statute by limiting its operations to platted lands and other lands adjacent thereto, and so near the center of population thereon as to render them suburban in their character. It is also claimed that the incorporation of the village was void because it included within the corporate limits territory not adjacent to the platted lands therein, within the meaning of the statute as construed by this court. Whether unauthorized territory was included in the village is wholly immaterial in this case. It is admitted that since 1889, when the village, in form, at least, was incorporated by a compliance with the statute as to all matters of procedure and form, it has, whether a de jure corporation or not, existed as a de facto municipal corporation, exercising in fact all the powers of such a corporation, and that it has been recognized as a village incorporated under the statute by the authorities of the town, city, and state in which its territory lies. We have, then, a valid law under which the village might have been incorporated as a de jure municipal corporation, an attempt so to incorporate, and the continuous exercise of all of the powers of such a corporation for more than four years before issuing its bonds. The state has never questioned its existence as a de jure municipal corpora- tion, but has recognized it as such. Such being the facts, the case is OPERATION AND EFFECT OF INCORPORATION 33 within the rule that, where a municipal corporation is acting under color of law and exercising all the functions and powers of a corpo- ration de jure, and the legality of its incorporation is not questioned by the state, but it has been recognized as such by the state for some years, neither the corporation nor any private party can question the validity of its corporate existence in a collateral action or proceed- ing. State V. Honerud, 66 Minn. 32, 68 N. W. 323 ; State v. Crow Wing Co., 66 Minn. 528, 68 N. W 767, 69 N. W. 925, 7Z N. W. 631, 35 L R A. 745; 1 Dill. Mun. Corp. § 43a; Cooley, Const. Lim. (6th Ed.) 309, 310; 15 Am. & Eng. Enc. Law, 964. * * * Or- der affirmed. IX. Operation and Effect of Incorporation 16 RUMSEY V. TOWN OF SAUK CENTRE. (Supreme Court of Minnesota, 1894. 59 Minn. 316, 61 N. W. 330.) Action by Charles F. Rumsey against the town of Sauk Centre, and on motion of defendant the city of Sauk Centre was made a party defendant. From an order overruling a demurrer by the city to the complaint, it appeals. Mitchell, J. This action was originally brought against the town of Sauk Centre alone, but subsequently, on motion of the town, neither the plaintiff nor the city objecting, the city of Sauk Centre was made a party defendant, and plaintiff amended his complaint accord- ingly. The defendant city demurred to the complaint, on the ground that it did not state a cause of action. From an order overruling this demurrer the city appealed. Stated in chronological order, the alle- gations of the complaint are as follows: The town of Sauk Centre was a duly-organized township in the county of Stearns. The village of Sauk Centre, situated within the town, was organized as an in- corporated village under Gen. Laws 1875, c. 139, and Sp. Laws 1876, c. 16, and so continued until the incorporation of the city of Sauk Centre, in 1889. In December, 1882, the town, in pursuance of the provisions of Sp. Laws 1879, c. 143, issued to the Little Falls & Da- kota Railroad Company its bonds to the amount of $12,000. which were afterwards sold and transferred to the i)laintiff, and upon which he brings this action. In 18.S5 the legislature passed an act (Sp. Laws 1885, c. 296) enti- tled "An act to provide for the payment of the bonded indebtedness of the town of Sauk Centre incurred by said town by the issue of 10 For rliscnssion of principles, see Cooley, -Mun. Corp. § 21. CooLEY Ca.ses Mu.n.C— 3 34 CREATION OP MUNICIPAL COIirORATIONS its bonds prior to the year 1883 and to apportion said indebtedness between the present town of Sauk Centre and the village of Sauk Centre." The provisions of this act were that the bonded indebted- ness of the town incurred by the issue of its bonds prior to 1883 should be apportioned and made chargeable to and payable by the town as then constituted, and by the village pro rata in the proportion that the valuation of taxable property of the town and village, respectively, shall bear to the entire valuation of the taxable property of the town and village collectively, said valuation to be determined by the gen- eral tax assessment list last preceding the time when the several in- stallments of principal and interest upon such bonds become due and payable; and that the payment of such proportionate shares thereby apportioned should be provided for, and paid by, and be recoverable against, the town and village, respectively, as they become due, in the same manner as other debts of the town and village, respectively, were by law provided for, made payable and recoverable. In March, 1889, the city of Sauk Centre was incorporated by Sp. Laws 1889, c. 4. The city included the whole of the village, and 880 acres which were outside the village, but within the town. This act provided that upon the election and qualification of the city officers in April, 1889, the village corporation should cease, and thereupon the city should succeed to, and become vested with and the owner of, all the prop- erty and rights of action which belonged to the village, and should be and become liable for all the debts, obligations, and liabilities then existing against the village for any cause or consideration whatever, in the same manner and to the same extent as if originally con- tracted or incurred by the city. 1. The allegations of the complaint are full to the efifect that the bonds were duly issued by the town by virtue of and in accordance with the provisions of Sp. Laws 1879, c. 143. Whether, in case these allegations are untrue, the recitals in the bonds are sufficient to estop the town or city from asserting the fact against a bona fide pur- chaser for value and before maturity, is a question not here involved, and hence need not be considered. 2. An examination of the acts under which the village was or- ganized will show that, according to the repeated decisions of this court in similar cases, it remained a part of the town for all pur- poses, except the village purposes provided for in the acts. The prop- erty within the village was subject to taxation for the payment of these bonds in the same manner and to the same extent as any other property in the town. Bradish v. Lucken, 38 Minn. 186, 36 N. W. 454. 3. Inasmuch as this condition of things still continued, it is not apparent what was the particular necessity for the enactment of the law of 1885. But the meaning and effect of that act are quite clear. It did not and could not affect or change the rights of the holders OPERATION AND EFFECT OF INCORPORATION 35 of the bonds against the town. But, as between themselves, it prac- tically made the village and the remainder of the town two separate and distinct districts as respects liability for and the payment of all outstanding bonds of the village issued prior to 1883, and apportioned this indebtedness between the two in the ratio of the taxable property within their respective limits. Under this act, the village would be liable to the holders of the bonds to the extent of the amount appor- tioned to it; and, if the town (outside of the village limits) was com- pelled to pay more than its share, it could have recovered it back from the village. The power of the legislature to do this is undoubted. The village was a part of the town which issued the bonds. All the property within its limits was liable to taxation for their payment. The part apportioned to the village did not impose any materially greater burden of taxation upon the property within its limits than it was already subject to. The right of the legislature in all cases not within any constitutional inhibition to create, alter, divide, or abolish all municipal corporations, and to make such division and apportionment of the corporate property and debts of old corpora- tions, in case of a division of their territory, as the legislature may deem equitable, is w^ell settled. State v. City of Lake City, 25 Minn. 404 ; City of Winona v. School Dist. No. 82, 40 Minn. 13, 41 N. W. 539, 3 L. R. A. 46, 12 Am. St. Rep. 687. And it can make no dififer- ence whether the legislature divides the old corporation only for a particular purpose or for aM purposes. The intention of the act of 1885 to make the village, as a municipal corporation, liable for the designated proportion of the town bonds, is very clear ; and. as we construe its provisions, there is no ground for the contention that the holders of the bonds could not recover against the village, but that it would only be liable over to the town. The fact that the city in- cludes 880 acres more than the village neither alters the law of the case, nor involves any practical difficulty. The liability of the village being established, the liability of the city, as its successor, under the act of 1889, is too clear to require argument. In case the plaintiff establishes his cause of action, he will be entitled to judgment against the town by virtue of its contract for the full amount of the bonds, — and against the city, by virtue of the acts of 1885 and 1889, to the extent of its proportionate share, as fixed by the act of 1885. There is nothing in the point that the act of 1885 violated section 27, art. 4, of the constitution of the state. Neither is there anything in the objection that it is a legislative exer- cise of judicial power. It docs not assume to pass upon the vahdity of any outstanding bonds of the town. If there are any such which were not a valid iuflcbtcdness of tlie town, that defense is still avail- able to both the town and the city. Order affirmed. 36 LEGISLATIVE CONTROL LEGISLATIVE CONTROL L Legislative Control in General^ PEOPLE ex rel. LE ROY v. HURLBUT. (Supreme Court of Michigan, 1871. 24 Micli. 44, 9 Am. Rep. 103.) Information in the nature of quo warranto, brought to test the right of the members of the boards of water commissioners and sewer commissioners of the city of Detroit to continue in office aft- er the taking efifect of an act estabHshing a board of pubHc works. The questions raised relate to the validity of that act. The act creates a board of public works for the city of Detroit and transfers to such board all the powers, duties, and responsibil- ities of the "board of water commissioners," the "board of sewer commissioners," and of the "commissioners of grades and plans." It vests in the board, for the purposes of the city, the property of the old boards, of which the water-works was the greater part; au- thorizes the board to take property by the right of eminent domain ; to contract for the performance of the works entrusted to them, and employ workmen ; to draw upon the proper funds, or, in certain cas- es, to issue bonds, for payment of expenses; and to make by-laws governing the public works in their charge. The act appoints the first members of the board, specifies the terms of their offices respectively, and provides that vacancies, whether by expiration of term or otherwise, shall be filled by the common council of the city; and provides that no person shall be eheible for said board who is not a freeholder in said city, and a qualified elector. Coolly, j.2 * * * \Ye have before us a legislative act creat- ing for the city of Detroit a new board, which is to exercise a con- siderable share of the authority usually possessed by officers locally chosen ; to have general charge of the city buildings, property, and local conveniences, to make contracts for public works in behalf oi the city, and to do many things of a legislative character which gen- erally the common council of cities alone is authorized to do. The legislature has created this board, and it has appointed its mem- bers ; and both the one and the other have been done under a clairr 1 For discussion of principles, see Cooley, Mun. Corp. §§ 22, 23. 2 The statement of facts is rewritten and part of the opinion of Cooley, J. and the opinions of Campbell, C. J., and Christiancy and Graves, JJ., an Dmitted. LEGISLATIVE CONTROL IN GENERAL 37 of right which, unless I wholly misunderstand it, would justify that body in taking to itself the entire and exclusive government of the city, and the appointment of all its officers, excepting only the ju- dicial, for which, by the Constitution, other provision is expressly made. And the question broadly and nakedly stated, can be noth- ing short of this : whether local self-government in this state is or is not a mere privilege, conceded by the legislature in its discretion, and which may be withdrawn at any time at pleasure. I state the question thus broadly because, notwithstanding the able arguments made in this case, and after mature deliberation, I can conceive of no argument in support of the legislative authority which wall stop short of this plenary and sovereign right. Now it must be conceded, that the judicial decisions and law writ- ers generally assert that the state creates the municipal bodies, en- dows them with such of the functions of corporate life and entrusts them with such share in the local government, as to' the legislative judgment shall seem best; that it controls and regulates their action while they exist, subjects them to such changes as public policy may dictate, and abolishes them at discretion ; in short that the corporate entities are mere agencies which the state employs for the conven- ience of government, clothing them for the time being with a por- tion of its sovereignty, but recalling the whole or any part thereof whenever the necessity or usefulness of the delegation is no longer apparent. This I understand to be the accepted theory of state constitutional law as regards the municipal governments. We sel- dom have occasion to inquire whether this amplitude of legislative authority is or is not too strongly expressed, for the reason that its exercise is generally confined within such bounds as custom has pointed out, so that no question is made concerning it. But such maxims of government are very seldom true in anything more than a general sense; they never are and never can be literally accepted in practice. Our Constitution assumes the existence of counties and townships, and evidently contemplates that the state shall continue to be sub- divided as it has hitherto been ; but it nowhere expressly provides that every portion of the state shall have county or township organ- izations. It names certain ofiiccrs which are to be chosen for these subdivisions, and confers upon the people the right to choose them ; but it does not in general define their duties, nor in terms preclude the legislature from establishing new offices, and giving to the in- cumbents the general management of municipal afifairs. If, there- fore, no restraints arc imposed upon legislative discretion beyond these specifically stated, the town.ship and county government of any portion of the state might be abolished, and the people be sub- jected to the rule of commissions appointed at the capital. The peo- ple of such portion might thus be kept in a state of pupilage and 38 LEGISLATIVE CONTROL dependence to any extent, and for any period of time the state might choose. The doctrine that within any general grant of legislative power by the Constitution there can be found authority thus to take from the people the management of their local concerns, and the choice, di- rectly or indirectly, of their local officers, if practically asserted, would be somewhat .startling to our people, and would be likely to lead hereafter to a more careful scrutiny of the charters of govern- ment framed by them, lest some time, by an inadvertent use of words, they might be found to have conferred upon some agency of their own the legal authority to take away their liberties altogether. If we look into the several state constitutions to see what verbal re- strictions have heretofore been placed upon legislative authority in this regard, we shall find them very few and simple. We have taken great pains to surround the life, liberty, and property of the individ- ual with guaranties, but we have not, as a general thing, guarded local government with similar protections. We must assume either an intention that the legislative control should be constant and ab- solute, or, on the other hand, that there are certain fundamental principles in our general framework of government, which are with- in the contemplation of the people when they agree upon the writ- ten charter, subject to which the delegations of authority to the sev- eral departments of government have been made. That this last is the case, appears to me too plain for serious controversy. The implied restrictions upon the power of the legislature, as regards local government, though their limits may not be so plainly defined as express provisions might have made them, are nevertheless equal- ly imperative in character, and whenever we find ourselves clearly within them, we have no alternative but to bow to their authority. The Constitution has been framed with these restrictions in view, and we should fall into the grossest absurdities if we undertook to construe that instrument on a critical examination of the terms em- ployed, while shutting our eyes to all other considerations. The circumstances from which these implications arise are : First, that the Constitution has been adopted in view of a system of local government, well understood and tolerably uniform in character, existing from the very earliest .settlement of the country, never for a moment suspended or displaced, and the continued existence of which is assumed ; and, second, that the liberties of the people have generally been supposed to spring from, and be dependent upon, that system. De Tocqueville speaks of our system of local government as the American system, and contrasts it forcibly with the French idea of centralization, under the influence of which constitutional freedom has hitherto proved impossible. Democracy in America, c. 5. Lieb- er makes the same comparison, and shows that a centralized govern- LEGISLATIVE CONTROL IN GENEHAL 39 merit, though by representatives freely chosen, must be despotic, as any other form of centralization necessarily is. "Self-government," he says, "means everything for the people and by the people, con- sidered as the totality of organic institutions, constantly evolving in their character as all organic life is ; but not a dictatorial multitude. Dictating is the rule of the army, not of liberty ; it is the destruction of individuality." Civil Liberty and Self-Government, c. 21. The writer first named, speaking of the New England township govern- ment, whose system we have followed in the main says: "In this part of the union the impulsion of political activity was given in the townships ; and it may almost be said that each of them original- ly formed an independent nation. When the kings of England as- serted their supremacy, they were contented to assume the central power of the state. The townships of New England remained as they were before ; and, although they are now subject to the state, they were at first scarcely dependent upon it. It is important to remember that they have not been invested with privileges, but that they seem, on the contrary, to have surrendered a portion of their independence to the state. The townships are only subordinate to the states in those interests, which I shall term social, as they are common to all the citizens. They are independent in all that con- cerns themselves ; and among the inhabitants of New England, I believe that not a man is to be found who would acknowledge that the state has any right to interfere in their local interests." Democ- racy in America, ubi supra. Now, if this author is here speaking of the theory of our institutions, he is in error. It is not the accepted theory that the states have received delegations of power from independent towns ; but the theory is, on the other hand, that the state governments precede the local, create the latter at discretion, and endow them with corporate life. But, historically, it is as diffi- cult to prove this theory as it would be to demonstrate that the origin of government is in compact, or that title to property comes from occupancy. The historical fact is, that local governments universally, in this country, were either simultaneous with, or pre- ceded the more central authority. In Massachusetts, originally a democracy, the two may be said to have been at first identical ; but when the colony became a representative government, and new bands pushed out into the wilderness, they went bearing with them grants of land and authority for the conduct of their local affairs. Hutchinson's Massachusetts Bay, c. 1 ; Washburn's Jud. Hist, of Mass. c. 1 ; Body of Liberties, §§ 62, 66, 72; Elliott's New England, vol. 4, pp. 425, 427. But in Connecticut the several settlements originated their own governments, and thr)ugh thasc were doubtless very imperfect and informal, they were sufficient for the time being, and the central govrrnnient was later in point of time. Trumbull's Hist, of Conn. 40 LEGISLATIVE CONTROL vol. 1, pp. 132, 498; Palfrey's New England, vol. 1, p. 454. What the colony did was only to confer charters, under which the town authority would be administered within agreed limits and possibly with more regularity than before. In Rhode Island it is also true that township organization was first in order of time. Arnold's Hist, of R. I. c. 7. This author justly remarks, that when the char- ter of Rhode Island was suspended to bring her under the dominion of Andros, "the American system of town governments, which ne- cessity had compelled Rhode Island to initiate fifty years before, be- came the means of preserving the liberty of the individual citizen when that of the state, or colony, was crushed." Vol. 1, p. 487. So in Vermont the people not only for a time conducted all their pub- lic affairs in towns and plantations, through committees, officers, and leaders, nominally appointed and submitted to by general con- sent and approbation, but they carried on their controversy with New York for some )^ears, without any other organization. Wil- liams' Hist, of Vermont, vol. 2, p. 163. In New Jersey, as in Massa- chusetts, towns were chartered in connection with grants of land, and, in some instances, those which were made by Nichols, adverse to the proprietary, were suffered to remain after his authority was superseded. See instances in Mulford's Hist, of N. J. pp. 143-144. The charter to Lord Baltimore plainly recognized local government in the provision requiring the laws and ordinances established to con- form to the laws, statutes, or rights of England. Bozman's Hist, of Maryland, p. 290. And county authorities seem to have existed from the very first, though their statutory organization, if any they had, cannot be traced. Bozman, pp. 299-303. But it cannot be necessary to particularize further. The general fact was, that wheth- er the colonial or local authority should originate first, depended entirely upon circumstances which might make the one or the other the more immediate need. But when both were once established they ran parallel to each other, as they were meant to do, for all time ; and what Mr. Arnold says of Rhode Island may be said gen- erally of the eastern and middle states that the attempt of the last two Stuarts to overthrow their liberties was defeated by means of the local organizations. The scheme tried first in England, to take away the corporate charters in order to make the corporators more dependent on the crown, and to restrain them from political action in opposition to the court party, found, in America, the colonial charters alone within the reach of arbitrary power; and though these were taken away or suspended, it was only with such protest and resistance as saved to the people the town governments. In Massachusetts it was even insisted by the people's deputies that, to surrender local government was contrary to the sixth command- ment, for, said they, "men may not destroy their political any more than their natural lives." So it is recorded they clung to "the civil LEGISLATIVE CONTROL IN GENERAL 41 liberties of New England" as "part of the inheritance of their fathers." Palfrev's New England, vol. 3, pp. 381-383 ; Bancroft's U. S. vol. 2, pp. '125-127; Mass. Hist. Col. XXI, 74-81. The whole contest with Andros, as well in New England, as in New York and New Jersey, was a struggle of the people in defense of the right of local government. "Everywhere," says Dunlap, "the people strug- gled for their rights and deserved to be free." Hist, of N. Y, vol. 1, p. 133; and see Trumbull's Hist, of Conn. vol. 1, c. 15. I have confined this examination to the states which have in- fluenced our own polity most ; but the same principle was recognized and acted on elsewhere. The local governments, however, were less complete in the states further south, and this, with some of their leading statesmen, was a source of regret. Mr. Jefferson, writing to Governor Tyler in 1810, speaks of the two great measures which he has at heart, one of which is the divi- sion of counties into hundreds. "These little republics," he says, "would be the main strength of the great one. We owe to them the vigor given to our Revolution, in its commencement, in the eastern states. * * * Could I once see this, I should consider it as the dawn of the salvation of the republic." Jefferson's Works, vol. 5, p. 525. Mr. Jefferson understood thoroughly the truth, so quaintly expressed by Bacon, when he said of a burden imposed, as com- pared to one freely assumed, that "it may be all one to the purse, but it worketh diversely upon the courage." Such are the historical facts regarding local government in Ameri- ca. Our traditions, practice, and expectations have all been in one direction. And when we go beyond the general view to inquire into the details of authority, we find that it has included the power to choose in some form the persons who are to administer the local regulations. Instances to the contrary, except where the power to be administered was properly a state power, have been purely ex- ceptional. The most prominent of these was the case of the mayor of New York, who continued, for a long time after the Revolution, the appointee of the governor. But this mode of choice originated when the city was the scat of colonial government, and while it constituted a large part of the colony, and the office was afterwards of such dignity and importance, and was vested with so many gen- eral powers, that one of the first statesmen of the nation did not hesi- tate to resign a seat in the senate of the United States to accept it. Hammond's Pol. Hist, of N. Y. vol. 1, p. 197. Moreover, the first Constitution of New York was, in important particulars, exception- al. That state had at the time a powerful aristocratic clement, by which its first institutions were in a great measure shaped; and a distrust of popular authority was manifest. It is scarcely needful to say that features of that character disappeared when the Con- stitution was revised. 42 LEGISLATIVE CONTROL For those classes of officers whose duties are general — such as the judges, the officers of militia, the superintendents of police, of quarantine, and of ports, by whatever name called — provision has to a greater or less extent, been made by state appointment. But these are more properly .state than local officers ; they perform du- ties for the state in localities, as collectors of internal revenue do for the general government ; and a local authority for their appointment does not make them local officers when the nature of their duties is essentially general. In the case before us, the officers in question involve the custody, care, management, and control of the pave- ments, sewers, waterworks, and public buildings of the city, and the duties are purely local. The state at large may have an indirect in- terest in an intelligent honest, upright, and prompt discharge of them, but this is on commercial and neighborhood grounds rather than political, and is not much greater or more direct than if the state Hne excluded the city. Conceding to the state the authority to shape the municipal organizations at its will, it would follow that a similar power of control might be exercised by the state as re- gards the property which the corporation has acquired, or the rights in the nature of property which have been conferred upon it. There are cases which assert such power, but they are opposed to what seem to me the best authorities as well as the .soundest reason. The municipality, as an agent of government is one thing; the cor- poration, as an owner of property is in some particulars to be re- garded in a very different light. The Supreme Court of the United States held at an early day that grants of property to public corpo- rations could not be resumed by the sovereignty. Terrett v. Taylor, 9 Cranch, 43, 3 L. Ed. 650; Town of Pawlet v. Clark, 9 Cranch, 292, 3 L. Ed. 735. And see Dartmouth College v. Woodward, 4 Wheat. 694-698, 4 L. Ed. 629. When the state deals with a municipal corporation on the footing of contract, it is said by Trumbull, J., in Richland v. Lawrence, 12 111. 8, the municipality is to be regarded as a private company. In Detroit v. Corey, 9 Mich. 165, 80 Am. Dec. 78, Manning, J., bases his opinion that the city was Hable for an injury to an in- dividual, occasioned by falling into an excavation for a sewer, care- lessly left open, upon the fact that the sewers were the private prop- erty of the city, in which the outside public or people of the state at large had no concern. In Warren v, Lyons, 22 Iowa, 351, it was held incompetent for the legislature to devote to other public uses land which had been dedicated for a public square. In State v. Haben, 22 Wis. 660, an act appropriating moneys collected for a primary school to the erection of a state normal school building in the same city was held void. Other cases might be cited, but it seems not to be needful. They rest upon the well-understood fact that these corporations are of a twofold character: the one public LEGISLATIVE CONTROL IN GENERAL 43 as regards the state at large, in so far as they are its agents in gov- ernment ; the other private, in so far as they are to provide the local necessities and conveniences for their own citizens; and that as to the acquisitions they make in the latter capacity as mere corpora- tions, it is neither just, nor is it competent, for the legislature to take them away, or to deprive the local community of the benefit thereof. There may come a time when from necessity the state must interpose. The state may change municipal boundaries; and then a division of the corporate property may be needful. The state may take away the corporate powers, and then the property must come to the state as trustee for the parties concerned. In either of these cases, undoubtedly, state action becomes essential; and the property may be disposed of according to the legislative judgment and sense of justice; but even then the appropriation must have regard, so far as the circumstances of the case will admit, to the purposes for which the property was acquired, and the inter- est of those who were corporators when the necessity for state inter- vention arose. In view of these historical facts, and of these general principles, the question recurs whether our state Constitution can be so con- strued as to confer upon the legislature the power to appoint for the municipalities the officers who are to manage the property, interests, and rights in which their own people alone are concerned. * * * Constitutional freedom certainly does not consist in exemption from governmental interference in the citizen's private affairs ; in his being unmolested in his family, suffered to buy, sell, and enjoy property, and generally to seek happiness in his own way. All this might be permitted by the most arbitrary ruler, even though he al- lowed his subjects no degree of political liberty. The government of an oligarchy may be as just, as regardful of private rights, and as little burdensome as any other ; but if it were sought to establish such a government over our cities by law it would hardly do to call upon a protesting pcoj^lc to show where in the Constitution the power to establish it was prohil)ited ; it would be necessary, on the other hand, to point out to them where and by what unguarded words the power had been conferred. Some things are too plain to be written. If this charter of state government which we call a Constitution, were all there was of constitutional connnaiid ; if tlic usages, the customs, the maxims, that have sprung from the hal)its of life, modes of thought, methods of trying facts by the ncighbor- hocKJ, and mutual responsibility in ncigliborhood interests, the pre- cepts which have come from the revolutions which overturned tyr- annies, the sentiments of manly independence and self-coiilrul wliicli impelled our ancestors to summon the local comnumity to redress local evils, instead of relying upon king or legislature at a distance to do so — if a recognition of all these were to be stricken from the 44 LEGISLATIVE CONTROL body of our constitutional law, a lifeless skeleton mi^lit remain, but the living spirit, that which gives it force and attraction, which makes it valuable and draws to it the affections of the people, that which distinguishes it from the numberless constitutions, so called, which in Europe have been set up and thrown down within the last hundred years, many of which, in their expressions, have seemed equally fair and to possess equal promise with ours, and have only been wanting in the support and vitality which these alone can give — this living and breathing spirit, which supplies the interpre- tation of the words of the written charter, would be utterly lost and Sfone. * * * The state may mould local institutions according to its views of policy or expediency; but local government is matter of absolute right; and the state cannot take it away. It would be the boldest mockery to speak of a city as possessing municipal liberty where the state not only shaped its government, but at discretion sent in its own agents to administer it ; or to call that system one of con- stitutional freedom under which it should be equally admissible to allow the people full control in their local affairs, or no control at all. What I say here is with the utmost respect and deference to the legislative department, even though the task I am called upon to per- form is to give reasons why a blow aimed at the foundation of our structure of liberty should be warded off. Nevertheless, when the state reaches out and draws to itself and appropriates the powers which from time immemorial have been locally possessed and exer- cised, and introduces into its legislation the centralizing ideas of continental Europe, under which despotism, whether of monarch or commune, alorre has flourished, we seem forced back upon and compelled to take up and defend the plainest and most primary axioms of free government, as if even in Anglican liberty, which has been gained step by step, through extorted charters and bills of rights, the punishment of kings and the overthrow of dynasties, nothing was settled and nothing established. But I think that, so far as is important to a decision of the case before us, there is an express recognition of the right of local au- thority by the Constitution. That instrument provides (article 15, § 14) that "judicial officers of cities and villages shall be elected; and all other officers shall be elected or appointed at such time and in such manner as the legislature may direct." It is conceded that all elections must, under this section, be by the electors of the mu- nicipality. But it is to be observed that there is no express declar- ation to that effect to be found in the Constitution ; and it may well be asked what there is to localize the elections any more than the appointments. The answer must be, that in examining the whole instrument a general intent is found pervading it, which clearly in- dicated that these elections are to be by the local voters, and not PUBLIC FUNDS AND REVENUES 45 "by the legislature, or by the people of a larger territory than that immediately concerned. * * * So far, then, as the act in question undertakes to fill the new offices with permanent appointees, it cannot be sustained either on general principles or on the words of the Constitution. * * * II. Offices and Officers" PEOPLE ex rel LE ROY v. HURLBUT. (Supreme Court of Michigan, 1871. 24 Mich. 44, 9 Am. Rep. 103.) See ante, p. 36, for a report of the case. III. Public Funds and Revenues* GUTZWELLER v. PEOPLE. (Supreme Court of Illinois, 1852. 14 111. 142.) Caton, J. We cannot persuade ourselves into a doubt of the authority of the legislature to take from the city of Alton the power to grant licenses to sell spirituous liquors. That right was conferred by the city charter passed in 1837, and the receipts for such licenses con- tributed towards a fund for the support of paupers within the city. It is within the undoubted jurisdiction of the legislature to determine within what districts of country the inhabitants shall be associated together, for the purpose of supporting the paupers within the pre- scribed limits. Whether such district shall be a town, city, or county, or even the whole state, is for the lawmaking power to determine. It was as much the right of the legislature to say that the city should support her paupers, as that the county should support hers. So, too, it was for the legislature to determine who should issue licenses to sell strong liquors, and to si^ecify wlictbcr the money thus raised .should be devoted to the su])port of paupers, or the maintenance of the police, or to any other purpose. It gave the city no more a vested right to issue licenses, because the legislature specified the objects to which the money should be applied, than if it bad been put into the 8 For discussiciii of priiniiHpH, see Coole.v, Mini. Corp. § 24. * For di.scus.siou of principles, see Cooley, Mun. Corp. § 25. 46 LEGISLATIVE CONTROL general fund of the city. If the legislature could not take from the city authority the power to issue licenses it certainly had no right to deprive the counties of the same authority. Cities are as much the creatures of legislative will as are counties, and what may be done with the one they have authority to do with the other. Trustees v. Tatnian, 13 111. 30, and notes. Was it the intention of the legislature, by the law of 1851, to de- prive the city of Alton of the right which she had hitherto enjoyed of granting these licenses? The language of the law is so explicit that it leaves but one possible answer to the question. After prohibiting the sale and prescribing the penalty for a violation, the act, in the sixth section, provides, that "all laws and parts of laws authorizing licenses to be granted to keep groceries, for the sale of vinous, spiritu- ous, or mixed liquors, are hereby repealed, and the provisions of this act shall extend to all incorporated cities or towns in this state, any- thing in their charters to the contrary notwithstanding." From this it is too plain to be argued, that it was the intention of the legislature to withdraw all authority which had ever been conferred upon any subordinate governmental agencies to grant licenses for the sale of liquor; and that thenceforth the sale of ardent spirits in less quanti- ties than one quart should be absolutely prohibited. By this law the power is as much taken from the city of Alton, as if she had been ex- pressly named in the act. It was pro tanto a repeal of the city charter and was for that purpose as effectual as if the entire charter had been taken away; and if the legislature had the right to do the latter, they certainly had authority to do the former. The license set up as a de- fense in this case was issued without authority of the law, and can afford no protection to the defendant for the commission of the act which was in express violation of the law. The judgment of the circuit court must be affirmed. Judgment af- firmed. CITY OF NEW ORLEANS v. CLARK. (Supreme Court of United States, 1877. 95 U. S. 644, 24 L. Ed. 521.) Mr. Justice FiSld.^ This w^as an action upon several coupons for interest annexed to bonds issued by the late city of Carrollton, in Louisiana, to the Jefferson City Gas-Light Company, a corporation created under the laws of that state, for laying gas pipes through certain streets of the city, and introducing gas for the use of its citi- zens. The bonds were indorsed by the president of the company, with its guaranty, for the payment of their principal and interest. * * * The bonds were issued pursuant to an ordinance of the city, which provided for the payment of the interest thereon, but made no provi- 5 Part of the opinion is omitted. PUBLIC FUNDS AND REVENUES 47 sion for the payment of the principal; and for this omission, and because they were issued in aid of a private corporation, their vahdi- ty was questioned by the city of New Orleans, upon which the liabili- ties of Carrollton were cast upon its annexation to that city ; and as it was contended in answer to this position that the legislature had subsequently, in the act of annexation, legalized the issue, the power of the legislature to do this was denied, but the Circuit Court held that the legislature possessed the power ; and the city of New Orleans was adjudged bound to pay the bonds. The record shows that the bonds were issued after the work had been done for which the contract was made and the gas had been in- troduced into the city, and that they were transferred to the plaintiff for a valuable consideration. * * * The invalidity of the bonds was asserted, as already stated, on two grounds : first, that they were issued in aid of a private corporation ; and, second, that the city of Carrollton, in issuing them, created a debt, without providing in the same ordinance the means of paying its principal. The first of these grounds is not one which aft'ects the validity of the bonds. A private corporation, as well as individuals, may be employed by a city in the construction of works needed for the health, comfort, and convenience of its citizens; and, though such works may be used by the corporation for its own gain, yet, as they advance the public good, the corporation may be properly aided in their construction by the city ; and for that purpose its obligations may be issued, unless some constitutional or legislative provision stands in the way. The bonds here were not given to the company as a gratuity, but for a valuable consideration; and if the company failed to pay them at maturity, and their payment was made by the city, the gas-works were to become the property of the city. The second of these grounds is not without force. An act of the legislature of Louisiana, passed in ]\Iarch, 1855, had declared that the constituted authorities of incorporated towns and cities in the state should not thereafter "have power to contract any debt or pecuniary liabihty, without fully providing in the ordinance creating the debt the means of paying the principal and interest of the debt or con- tract." This enactment imposed a restriction ui)on the creation of liabilities by municipal bodies, which could not be disregarded. It was intended to keep their expenditures within their means ; and its effi- cacy in that respect would be entirely dissipated, if debts contracted in violation of it were held legally binding upon the municipalities. Assuming, then, that the bonds were invalid for the omission slated, they still represented an equitable claim against the city. They were issued for work done in its interest, of a nature which the city re- quired for the convenience of its citizens, and which its charter au- thorized. It was, therefore, competent for the legislature to interfere and impose the payment of the claim upon the city. The books are 48 LEGISLATIVE CONTROL full of cases where claims, just in themselves, but which, from some irregularity or omission in the proceedings by which they were cre- ated, could not be enforced in the courts of law, have been thus recog- nized and their payment secured. The power of the legislature to re- quire the payment of a claim for which an equivalent has been re- ceived, and from the payment of which the city can only escape on technical grounds, would seem to be clear. Instances will readily occur to every one, where great wrong and injustice would be done if provision could not be made for claims of this character. For ex- ample, services of the highest importance and benefit to a city may be rendered in defending it, perhaps, against illegal and extortionate de- mands; or moneys may be advanced in unexpected emergencies to meet, possibly, the interest on its securities when its means have been suddenly cut off, without the previous legislative or municipal sanc- tion required to give the parties rendering the services or advancing the moneys a legal claim against the city. There would be a great defect in the power of the legislature if it could not in such cases re- quire payment for the services, or a reimbursement of the moneys, and the raising of the necessary means by taxation for that purpose. A very different question would be presented, if the attempt were made to apply the means raised to the payment of claims for which no consideration had been received by the city. The act of 1874, which annexed Carrollton to New Orleans, pro- vided that all property, rights, and interests of every kind of the former city should be vested in the latter, and that the debts and lia- bilities of Carrollton, "including the funding and improvement bonds, and the bonds issued to the Jefferson City Gas-Light Company, and known as gas bonds," should be assumed and paid by the city of New Orleans; and that city was in terms declared liable therefor. Inde- pendently of this legislation, the liabilities of Carrollton would have devolved with its property upon New Orleans on the annexation to that city, so far, at least, that they could be enforced against the in- habitants and property brought by the annexation within its juris- diction. Broughton v. Pensacola, 93 U. S. 266, 23 L. Ed. 896. Eq- uitable claims which had existed against the dissolved city would con- tinue as before, and be equally subject to legislative recognition and enforcement, or their payment might be required, as in this case, by the act of annexation. The power of taxation which the legislature of a state possesses may be exercised to any extent upon property within its jurisdiction, except as specially restrained by its own or the federal Constitution; and its power of appropriation of the moneys raised is equally unlimited. It may appropriate them for any pur- pose which it may regard as calculated to promote the public good. Of the expediency of the taxation or the wisdom of the appropriation it is the sole judge. The power which it may thus exercise over the revenues of the state it may exercise over the revenues of a city, for OBLIGATIONS IMPOSED BY LEGISLATURE 49 any purpose connected with its present or past condition, except as such revenues may, by the law creating them, be devoted to special uses ; and, in imposing a tax, it may prescribe the municipal purpose to which the moneys raised shall be applied. A city is only a political subdivision of the state, made for the convenient administration of the government. It is an instrumentality, with powers more or less enlarged, according to the requirements of the public, and which may be increased or repealed at the will of the legislature. In directing, therefore, a particular tax by such corporation, and the appropriation of the proceeds to some special municipal purpose, the legislature only exercises a power through its subordinate agent which it could exercise directly ; and it does this only in another way when it directs such corporation to assume and pay a particular claim not legally binding for want of some formality in its creation, but for which the corporation has received an equivalent. People ex rel. Blanding v. Burr, 13 Cal. 343; Town of Guilford v. Supervisors of Chenango County, 18 Barb. (N. Y.) 615; s. c, 13 N. Y. 143. The constitution of Louisiana of 1868, which provides that no re- troactive law shall be passed, does not forbid such legislation. A law requiring a municipal corporation to pay a demand which is without legal obligation, but which is equitable and just in itself, being founded upon a valuable consideration received by the corporation, is not a retroactive law, — no more so than an appropriation act providing for the payment of a pre-existing claim. The constitutional inhibition does not apply to legislation recognizing or affirming the binding ob- ligation of the state, or any of its subordinate agencies, with respect to past transactions. It is designed to prevent retrospective legisla- tion injuriously affecting individuals, and thus protect vested rights from invasion. Judgment affirmed. IV. Obligations Imposed by Legislature « MERCHANTS' NAT. BANK OF ST. PAUL v. CITY OF EAST GRAND FORKS. (Supreme Court of Minnesota, 1905. 94 Minn. 24G, 102 N. W. 70:5.) Action by the Merchants' National Bank of St. Paul against the city of East Grand Forks. Judgment for plaintiff, and defendant appeals. Jaggakd, J.^ This was an action brought against the city of East Grand Forks to receiver on certain warrants issued by that • For (lisfusRlon of principles, see Cooley, Mun. Corp. §§ 20, 27. T Tart of the opinion is omitted. CooLEY Casks Mun.C- 50 LEGISLATIVE CONTROL city, with interest. That city entered into a contract for' paving certain streets with one Thornton. As the work progressed, esti- mates due and payable in the succeeding month were furnished by the city engineer, and were allowed by the city council. Upon them, six warrants on the city treasurer, aggregating $8,000, were issued to the contractor, and in course of time were duly presented for payment. Payment was refused for lack of funds. The treas- urer indorsed the warrants as registered, and as drawing interest until presented for payment. These warrants were pledged to the plaintiff as collateral security for loans, and became its absolute property through foreclosure proceedings. The defenses interposed were (1) the illegality of the contract; and (2) the contractor's failure to perform. Upon the trial the court made rulings as to the evidence, and finally based its findings of fact and conclusions of law and order for judgment for the plaintiff, in the full amount claimed, upon the proposition that the contract was validated and the warrants legalized by section 9 of chapter 382, p. 695, of the Laws of 1903. * * * 2. The second contention of the defendant was that a vested cause of action is beyond legislative impairment, and that a vested right to an existing defense is equally protected, saving only those which are based on informalities not affecting substantial rights, and which do not touch the substance of the contract, and are not based on equity and justice. Mr. Justice Matthews, in Pritchard V. Norton, 106 U. S. 132, 1 Sup. Ct. 102, 27 L. Ed. 104; and see Farnsworth Loan & Realty Co. v. Commonwealth T. L & T. Co., 84 Minn. 62, 86 N. W. 877; 8 Cyc. 910, 911. "Because, in the nature of things, there can be no vested right to violate a moral duty or resist the performance of a moral obligation." Grinder v. Nelson, 9 Gill (Md.) 299, 52 Am. Dec. 694. The decision of this branch of the case is not, however, determined by limitations placed by the Constitution upon the power of the Legislature to affect private property. The question here is whether the state Legislature has the power to impose upon a municipal corporation the payment of certain disputed obligations. The result of the exercise of that discretion is upon taxation. Now, it is well settled that the power which the Legislature may "exercise over the revenues of the state it may exercise over the revenues of a city for any purpose connected with its present or past condition." Mr. Justice Field in New Orleans v. Clark, 95 U. S. 644-652, 24 L. Ed. 521. In following this case, Mr. Justice Peckham says in Guthrie Nat. Bank v. Guth- rie, 173 U. S. 528-537, 19 Sup. Ct. 513, 43 L. Ed. 796: "In the ex- ercise of this jurisdiction over municipal corporations by the state or by the territorial Legislature, no constitutional principle is vio- lated. It is a jurisdiction which has been customarily exercised ever since the foundation of the government, and is based upon OBLIGATIONS IMPOSED BY LEGISLATURE 51 the power of the state, as sovereign, to itself recognize, or compel any of its political subdivisions to recognize, those obligations which, while not cognizable in any court of law, are yet based upon considerations so thoroughly equitable and moral as to deserve and compel legislative recognition." And in Utter v. Franklin, 172 U. S. 416, 19 Sup. Ct. 183, 43 L. Ed. 498, there was sustained the action of Congress in validating bonds issued by a territory, declared void because not necessary to the administration of in- ternal affairs (Lewis v. Pima County, 155 U. S. 54, 15 Sup. Ct. 22, 39 L. Ed. 67), in a suit brought before the passage of the cura- tive act. This principle has been recognized and enforced in this state. State v. City of Lake City, 25 Minn. 404; Kunkle v. Town of Franklin, 13 Minn. 127 (Gil. 119). 97 Am. Dec. 226; and see Nash V. Lowrv. Z7 Minn. 261, ZZ N. W. 787; Flynn v. Little Falls E. & W. Co., '74 Minn. 180, 17 N. W. 38, '78 N. W. 106; People V. Burr, 13 Cal. 343; Tow^n v. Supervisors, 13 N. Y. 143; Grover V. Inhabitants of Pembroke, 11 Allen (Alass.) 88; Bartholomew V. Town of Harwinton, 33 Conn. 408; Booth v. Woodbury, 32 Conn. 118; Freeland v. Hastings, 10 Allen (^Mass.) 570; Schofield V. Watkins, 22 111. 66 ; Read v. Plattsmouth, 107 U. S. 568, 2 Sup. Ct. 208, 27 L. Ed. 414; U. S. v. Realty Co., 163 U. S. 427, 16 Sup. Ct. 1120, 41 L. Ed. 215. The immediate question to be here decided is whether the Legis- lature has the power to cure the defects involved in these w^arrants, eliminate the defenses herein interposed, and require the city to discharge these particular obligations. That the contract was void for three reasons w^as contended by defendant and denied by plain- tiff: (1) There was no money in the treasury to pay the w^arrants, and no provision made for securing it, as required by the law un- der which defendant was incorporated. This statute, however, expressly excepts cases otherwise therein provided for. Here the contract is to be paid by local assessment. Therefore it was ar- gued that the vitiating provision does not apply. See Comstock v. Inc. Village of Nelsonville, 61 Ohio St. 288, 56 N. E. 15. (2) Mo bond was given to secure claims for work and material, as required by chapter 321, p. 535, Laws 1901. But no such claims aj^pcar unpaid, and an adequate bond was given the city, which i;rotectcd fully. (3) The warrants created an indebtedness in ex- cess of amount prescribed for the city. It was impliedly conceded that the curative law is valid so far as it affects all the objections of the defendant on these grounds. ♦ ♦ * Judgment alTirmed. 52 LEGISLATIVE CONTROL CITY OF NEW ORLEANS v. CLARK. (Supreme Court of United States, 1877. 95 U. S. G44, 24 L. Ed. 521.) See ante, p. 46. for a report of the case. SIMON V. NORTHRUP. HANSEN V. HIRSCH. (Supreme Court of Oregon, 1895. 27 Or. 487, 40 Pac. 560, 30 L. R. A. 171.) See post, p. 57, for a report of the case. CITY OF GUTHRIE v. TERRITORY ex rel. LOSEY. (Supreme Court of Oklahoma, 1892. 1 Okl. 188, 31 Pac. 190, 21 D. R. A. 841.) BuRFORD, J.8 On the 22d day of April, 1889, at the opening of the Oklahoma country to settlement and occupancy, a large num- ber of people settled for town-site purposes upon the lands now occupied by the city of Guthrie, The act of congress approved March 2, 1889, contains a provision that no entry of lands for town- site purposes shall embrace more than 320 acres in any one entry. To avoid this inhibition, and segregate more lands for the purpose of trade and business, four separate entries were made of these lands, consisting of 320 acres each, and were severally denominated Guthrie, East Guthrie, Capitol Hill, and West Guthrie. The town- site settlers and occupants of each of these subdivisions organized what were called "provisional governments," under charters adopt- ed by the people at public meetings held for such purpose, and each selected municipal officers, made public improvements, graded streets, erected buildings, constructed bridges, adopted laws and ordinances, and arrested, punished, and imprisoned violators of such ordinances. These provisional governments assumed and ex- ercised all the powers, functions, and authority of legally-consti- tuted municipal corporations, and continued to exercise the same until the month of August, A. D. 1890, when they were consoli- dated, and organized as a village corporation, under and pursuant to the laws of Nebraska, as adopted and extended over said terri- tory by the act of congress approved May 2, 1890, providing a ter- ritorial government for the territory of Oklahoma; and said vil- lage of (5uthrie succeeded to all the improvements, property, books, and documents of the several provisional governments. During the existence of the several provisional governments they each contracted and created in various ways pertaining to their munici- 8 Part of the opinion is omitted. OBLIGATIONS IMPOSED BY LEGISLATURE 53 pal affairs certain debts, which remained unpaid at the time the said provisional governments were converted into a legally-consti- tuted municipal corporation. The village of Guthrie continued her corporate existence until after the adjournment of the first territorial legislature, when she organized as a city of the first class, under the laws of Oklahoma, and has ever since remained such, with a mayor, common council, and police officers, exercising all the functions and powers of a municipal corporation, and is composed of the same people, and embraces the same territory, as the original provisional govern- ments of Guthrie, East Guthrie, Capitol Hill, and West Guthrie, and has succeeded to all their property and improvements, and has adopted and appropriated the same. During the session of the first legislature, and after the village of Guthrie had been organized, an act was passed, entitled "An act for the purpose of providing for the allowance and payment of the indebtedness heretofore cre- ated by the people and cities of Guthrie, East Guthrie, West Guth- rie, and Capitol Hill, now consolidated into the city of Guthrie." Chapter 14, art. 1, St. Okla. This act empowers the district judge of Logan county to appoint three disinterested persons to act as referees to inquire into and pass upon all claims and demands of every character heretofore issued by the four provisional govern- ments for all purposes. * * * Acting under the provisions of this statute, the district judge of Logan county appointed the relator, with two others, referees or commissioners, and they qualified and performed the duties re- quired of them in said act, and made their report to the district court. Thereupon the court ordered that the relator be allowed the sum of $425 for his services as such referee, and ordered that the council issue warrants of the city of Guthrie therefor. This order was presented to the council in session, and a demand made for the warrant, which was refused. The relator applied to the district court of Logan county for an alternative writ of mandate, commanding the city to issue said warrant, or show cause why the same should not be done. * * * The court then rendered judginent for the relator, and issued a peremptory writ of manda- mus commanrling the defendant to issue said warrant. * * * The first question to be determined in this controversy is as to the legal status or character of the so-called "provisional govern- ments." It is a well-established rule of law that before there can be a de facto municipal corporation there must be some authority for a de jure corporation. A de facto corporation cannot exist where there is no law authorizing a de jure corporation. Norton v. Shelby Co., 118 U. S. 426, 6 Sup. Ct. 1121 ; Evenson v. EHingson, 67 Wis. 634, 31 N. W. 342. "The proposition which lies at the founrlation of the law of corporations of this country is that here all corporations, public and private, exist, and can only exist, by 54 LEGISLATIVE CONTROL virtue of express legislative enactment, creating or authorizing the creation or existence of the corporate body. Legislative sanction is, with us, absolutely essential to lawful corporate existence." Dill. Mun. Corp. § 2>7 . Was there any legislative sanction to the existence of municipal corporations prior to the act of congress ap- proved May 2, 1890? We are unable to find any such authority. These provisional governments grew out of a necessity made by the absence of legal authority. They were aggregations of people associated together for purpose of mutual benefit and protection. Without any statute law, they became a law unto themselves, and adopted the forms of law and government common among civilized people, and enforced their authority by the power of public sentiment. They had no legal existence ; they were nonentities ; they could not bind them- selves by contracts, or bind any one else; they were morally bound to make just recompense for that which they received in money, labor, or materials, but no such obligations could be enforced against them. The organic act furnished them a sovereign civil government, and supplied the authority for constituting de jure municipal corporations. Then they became and were de facto cor- porations until such time as they complied with the laws relating to incorporating villages, and became a de jure corporation. The de jure corporation having succeeded to all the property, public improvements, people, and territory of the provisional gov- ernments, has the legislature power to compel the de jure govern- ment to pay the debts of its illegal unauthorized predecessor? It IS a fundamental rule that a legislature may, by a retroactive stat- ute, cure or ratify any defect which it might have, in the first in- stance, authorized, unless prohibited by some constitutional or or- ganic provision ; or it may, by a retroactive statute, legalize any proceedings that it might have authorized. Wade, Retro. Laws, §§ 254, 257, and authorities cited. It can hardly be contended that the legislature could not have authorized the creation of the debts of the provisional government had there been a legislature prior to their organization ; that is, it is not shown that the debts con- tracted, or any of them, are of a class that a de jure municipal corporation might not have been authorized to contract. Ratifica- tion is merely the act of conferring authority retrospectively ; and this power must necessarily be measured by the constitutional pro- visions in force at the date of the curative act, where it is not de- nied by the constitution in force at the date of the original defective organization or act. Id. § 266. Retrospective laws may be enacted for the purpose of furnishing remedies for the enforcement of pre- existent moral obligations which were not legally enforceable. Commissioners v. Bunker, 16 Kan. 498; Weister v. Hade, 52 Pa. 474; Wade, Retro. Laws, §§ 21-23. OBLIGATIONS IMPOSED BY LEGISLATURE 55 Municipal corporations are but subdivisions of the state or terri- tory created for the convenience and better government of its af- fairs by local officers. Their rights, powers, and duties are the creatures of legislative enactment, and they exist and act in subor- dination to the sovereign power that creates them. The legislature may determine what moneys they may raise and expend, and what taxation may be imposed, and it may compel a municipal corpora- tion to pay a debt which has any moral or meritorious basis to rest on. Mayor, etc., v. Tenth Nat. Bank, 111 N. Y. 446, 18 N. E. 618. * * * Judge Dillon, in his work on Municipal Corporations, (section 75,) thus states his conclusions: "The cases on this sub- ject, when carefully examined, seem to the author to go no further, probably, than to assert the doctrine that it is competent for the legislature to compel municipal corporations to recognize and pay debts or claims not binding in strict law, and which, for technical reasons, could not be enforced in equity, but wdiich, nevertheless, are just and equitable in their character, and involve a moral obli- gation." In Guilford v. Supervisors, 13 N. Y. 143, the court states the rule thus : "The legislature is not confined in its appropriations of public moneys or of the sums to be raised by taxation in favor of individuals to cases in which a legal demand exists against the states. It can thus recognize claims founded in equity and justice in the largest sense of these terms, or in gratitude or charity. In- dependently of express constitutional restrictions, it can make ap- propriations of money whenever the public well-being requires, or will be promoted by it; and it is the judge of what is for the public good." * * * It was held in Brewster v. City of Syracuse, 19 N. Y. 116, that the legislature has power to authorize taxation for the payment of a claim not a legal obligation, and without the con- sent of the citizens of the municipality. "The power of the legis- lature to require the payment of a claim for which an equivalent has been received, and from the payment of which the city can only escape on a technical ground, would seem clear." New Or- leans v. Clark, 95 U. S. 644, 24 L. Ed. 521. While the contracts and agreements entered into by the provi- sional governments cannot be enforced as contracts, either against the contracting parties or their successors, it does not necessarily follow that all the debts sought to be collected under this act are without remedy, and might not l)e enforced in some manner against the present city of Guthrie. If they can, then it presents a stronger reason for legislative action. In Nelson v. Mayor, etc., 63 N. Y. 544, the court said: "it has often been adjudged that if a city obtains money on a void bond, or for an illegal tax, or Ijy mistake, and the money goes into the city treasury, the city can be com- pelled to refunrl. If it obtains property under a void contract, and actually uses the property, and collects the value of it from i)n)i>- erty owners by means of assessments, the plainest principles of 5G LEGISLATIVE CONTROL justice require that it should make compensation for the value of such property to the person from whom it was obtained. The city, in such case, however, should be held liable only for the actual value of the property, or wdiat it obtained therefor, and would not be concluded by the contract price." This proposition is supported by the following cases: Herman v. City of Crete, 9 Neb. 356, 2 N. W. 722; Maher v. City of Chicago, 38 111. 266; Louisiana v. Wood. 102 U. S. 294, 26 L. Ed. 153; Chapman v. County of Doug- lass, 107 U. S. 348, 2 Sup. Ct. 62, 27 L. Ed. 378; Clark v. Saline Co., 9 Neb. 516,4 N.W. 58. There is no provision in the federal constitution or the organic act of this territory that contravenes the statute authorizing the village of Guthrie to pay these debts; and, aside from any question of implied liability for money had and received, or property ap- propriated and converted to the use of the city, it seems clear that the legislature did not exceed its authority in enacting said law. Courts cannot overthrow legislative acts upon the ground that they are vicious in their policy, or evil in their tendencies. Statutes must stand, unless found repugnant to some express provision of the organic law or constitution. Mount v. State, 90 Ind. 29, 46 Am. Rep. 192 ; County of Livingston v. Darlington, 101 U. S. 407, 25 L. Ed. 1015. The legislature is to be the judge of the policy or wisdom of the laws they enact, and, so long as they keep within the constitutional restriction, the courts cannot interfere, however unjust they may seem in their operations. Counsel for the present city of Guthrie cites the case of State v. Tappan, 29 Wis. 664, 9 Am. Rep. 622, and insist that in that case the court lays down a rule contrary to the doctrine enunciated in the cases we have herein cited. A careful examination of that case fails to reveal any serious conflict. The decision is based upon local constitutional restrictions, and the general conclusion of the court is in harmony with the adjudicated cases. In summing up his conclusion the learned judge states this proposition: "The leg- islature may authorize a town to levy taxes therein for public purposes not strictly of a municipal character, but from which the public have received, or will receive, some direct advantage, or where the tax is to be expended in defraying the expenses of the government, or in promoting the peace, good order, and welfare of society, or where it is to be expended to pay claims founded in natural justice and equity, or in gratitude, for public services or expenditures, or to discharge the obligations of charity and hu- manity, from which no person or corporation is exempt." Under this rule the legislature might reasonably say to the village of Guthrie: "You have received some advantage from the work per- formed and improvements made by these provisional governments, and these claims are founded in natural justice, and we will au- thorize you to tax your property to pay them." The legislature PUBLIC THOROUGHFARES 57 has seen fit to provide for the payment of these claims. It had the power to enact such a law. We find the statute in conflict with no superior rule or limitation which affects its vitality. * * * Having- reached the conclusion that the village of Guthrie was legally liable by legislative enactment for the proper provisional debts, is the city of Guthrie also liable, and can the defendant in the case at bar be required to pay the relator for his services? This question has been passed upon by several courts of the highest resort, and the same conclusion is reached in all. The city of Guth- rie succeeded to all the rights, franchises, and property of the vil- lage of Guthrie, and is bound by all her contracts and obligations. The legislature made the village of Guthrie liable for these debts and claims. It constituted a part of her legal liabilities at the time the change was made from the village to the city organization. The new was bound to carry out and recognize all the legal con- tracts and liabilities of the old. A municipal corporation cannot escape the payment of just liabilities by a change of name, a change of organization, or a change of boundaries. The remedy may be for a time suspended or defeated, but the obligation rests the same, and the legal successor which takes the people, the territory, the prop- erty, and corporate benefits will be bound to meet the liabilities. Broughton v. Pensacola, 93 U. S. 266, 23 L. Ed. 896; Mobile v. Watson, 116 U. S. 289, 6 Sup. Ct. 398, 29 L. Ed. 620; Girard v. Philadelphia, 7 Wall 1, 19 L. Ed. 53; Mount Pleasant v. Beckwith, 100 U. S. 514, 25 L. Ed. 699; O'Connor v. Memphis, 6 Lea (Tenn.) 730. * * ♦ Affirmed. V. Public Thoroughfares • SIMON v. NORTHRUP. HANSEN V. HIRSCH. (Supreme Conrt of Oregon, 1895. 27 Or. 487, 40 Pac. .560, ."iO L. R. A. 171.) Actions by Joseph Simon against H. H. Northrup and others and John R. Hansen against Sol. Hirsch and others. From a judg- ment for defendants in each case, plaintiffs appeal. Modified and affirmed. Bean, C. J.'" These two cases, which for convenience were heard together in this court, involve the constitutionality of an act of the legislature of 1895 providing for the acquisition by the city of Port- • For discussion of principles, see Cooley, Mun. Corp. § 30. »• I'urt of the opinion is omitted. 58 LEGISLATIVE CONTROL land of the Morrison street bridge, Stark street ferry, and the upper deck of the steel bridge, and requiring the supervision, management, and control of said bridges and ferry, when so acquired, and of all the free bridges and ferries of the city acquired under the acts of 1891 and 1893, to be turned over to the Multnomah county court, to be thereafter supervised, managed, and controlled by said court. * * * In the first place, the entire act is challenged upon the ground that it is incompetent for the legislature to compel the city of Portland to incur a debt for the construction of public bridges within its bound- aries, and much was said at the argument about the inexpediency and injustice of such legislation, and the effect previous legislation of this character has already had upon the financial affairs of the city. But the question is one of power alone, and, however unjust, inex- pedient, or even oppressive such legislation may be, the courts are powerless to declare it invalid if it is within the legitimate exercise of legislative powers. A municipal corporation is but the creature of the legislature, and in its governmental or public capacity is one of the instruments or agents of the state for governmental purposes, possessing certain prescribed political and municipal powers, to be exercised by it on behalf of the general public rather than for itself ; and over it, as such agent, the authority of the legislature is supreme, and without limitation or restriction other than such as may be found in the constitution. There is a line of authorities which hold, and perhaps properly, that a municipal corporation cannot be burdened with a debt without its consent for a matter of local, as distinguished from state, pur- poses. Park Com'rs v. Detroit Common Council, 28 Mich. 228, 15 Am. Rep. 202; People v. Mayor, etc., of Chicago, 51 111. 17, 2 Am. Rep. 278 ; People v. Batchellor, 53 N. Y, 128, 13 Am. Rep. 480. But it seems to be substantially agreed that when the debt or liability is to be incurred in the discharge of some duty which is imposed upon the municipality exclusively for public purposes, and in the performance of which the general public, as distinguished from the inhabitants of the particular municipality, have an interest, it is within the power of the legislature to compel it to perform such duty and incur a debt therefor. That the making and establishment of public highways and bridges, and the assessment and collection of taxes, are within the legitimate legislative powers, and are among the ordinary subjects of legislation, cannot be questioned. Nor do we think it can be success- fully denied that the bridges and ferries referred to in the act under consideration will, when acquired, belong to the city of Portland in its public or governmental capacity, and that in the acquisition of them it is but discharging a public or state duty which it is entirely proper for the legislature to impose upon it; and therefore, if there is no limitation in the constitution, it is no objection to the validity of an act for that purpose that a debt or liability against the corpo- ration is to be created without its consent. Cooley, Tax'n, 682 ; Dill. PUBLIC THOROUGHFARES 59 Mun. Corp: § 74; Winters v. George, 21 Or. 251, 27 Pac. 1041 ; State V. George, 22 Or. 142, 29 Pac. 356, 16 L. R. A. 737, 29 Am. St. Rep. 586; Citv of Philadelphia v. Field, 58 Pa. 320; Bank v. Katz, 57 Md. 145 ; Davis v. Railroad Co., 47 N. Y. 400. That the construction of bridges and highways in a city, and the incurring of a debt therefor, should ordinarily be left to the judgment and discretion of the proper municipal authorities is manifestly just and in harmony with the right of local self-government and the theory of our political institutions, but the policy of such legislation is not for the courts. When the power is conceded, the courts cannot in- quire into the expediency or manner of its exercise, or the motives or reasons prompting the particular act. We conclude, therefore, that the act in question is not invalid because it compels the city of Port- land to incur a debt, without its consent, for the acquisition of public bridges and ferries. * * * It is also contended that the legislature cannot take from the city of Portland the supervision, management, and control of the public bridges and ferries belonging to it, and transfer them to the county of Multnomah. In the first place, these bridges and ferries are not now, and never have been, under the supervision of the city of Port- land, but are managed and controlled by a committee or commission appointed for that purpose by the legislature, and this act only pur- ports to transfer their management and control from such committee to another state or governmental agent. But, if it were otherwise, the law is now too well settled to be questioned that the public high- ways of a city are not the private property of the municipality, but are for the use of the general public, and that, as the legislature is the representative of the public at large, it has, in the absence of any constitutional restriction, paramount authority over such ways, and may grant the use or supervision and control thereof to some other governmental agency so long as they are not diverted to some use substantially dift'erent from that for which they were originally in- tended. 2 Dill. Mun. Corp. 656, and authorities there cited ; Cooley, Const. Lim. (5th Ed.) 335, and note. In accordance with this prin- ciple, it was held in Railroad Co. v. Portland, 14 Or. 188, 12 Pac. 265, 58 Am. Rep. 299, that an act of the legislature granting the use of the public levee of the city of Portland to a railway company for railway pur];oses was a valid exercise of legislative powers. So, also, it was held in People v. Walsh, 96 111. 232, 36 Am. Rep. 135, that it was competent for the legislature to transfer the control of the streets of a city to park commissioners, to be by them controlled for boule- vard and driveway purposes. A city occupies, as it were, a dual relation to the state, — the one governmental or political, and the other prnprictary or j)rivate. In its governmental or jwlitical capacity it is nothing more than a mere governmental agent, subject to the absolute control of the legislature, except as restricted by the constitution, and such property and ease- 60 LEGISLATIVE CONTROL ments as it may have in public streets and ways are held by it in such capacity, and at the will of the legislature. But, on the other hand, such property as it may hold or acquire in its proprietary or private capacity is as much protected by the constitution as the property of the private citizen, and of which it cannot be deprived except for public purposes, and only then upon just compensation. To the latter effect arc the authorities cited and relied upon by the defendant, and they are therefore not in point in this discussion, * * * ALTERATION AND DISSOLUTION 61 ALTERATION AND DISSOLUTION I. Territorial Increase or Decrease ^ 1. In Ge:nerai< CITY OF DENVER v. COULEHAN. (Supreme Court of Colorado, 1894. 20 Colo. 471, 39 Pac. 425, 27 L. R. A. 751.) Action by Jeremiah Coulehan, suing for himself and others, against the city of Denver and others, to enjoin the assessment, levy, and collection of taxes upon certain property in Jefferson county by or for the use of the city of Denver. Trial, and judgment in favor of plaintiff, granting the perpetual injunction as prayed for. Defend- ants appeal. - Elliott, J. The city of Denver was organized and existing un- der and by virtue of a special charter long before and at the time of the adoption of our state constitution. The constitution did not abro- gate such charters, nor does it exempt them from legislative amend- ments. Const, art. 14, § 14; Id. art. 15, § 2; Brov^n v. City of Den- ver, 7 Colo. 305, 3 Pac. 455; Carpenter v. People, 8 Colo. 116, 5 Pac. 828. On April 3, 1893, the general assembly of Colorado passed "An act to revise and amend the charter of the city of Denver." See Sess. Laws 1893, p. 131. Prior to the passage of that act, the territorial lim- its of the city were wholly within the county of Arapahoe. Jefferson county bounds Arapahoe on the west, but between Jefferson and the western limits of the city of Denver there were at the time of the passage of the act above mentioned several municipal corporations, viz. the town of North Denver, the town of Highlands, the town of Colfax, and the town of Barnum. The territorial boundaries of these municipalities for the most part extended to the Jefferson county line, and so separated the city of Denver from that county. In fact, at the time of the passage of the act to revise and amend the Denver charter, no part of the territorial limits of the city of Denver was contiguous to any part of Jefferson county. Nevertheless, by the terms of said act, it was attempted to enlarge or extend the limits of the city of Denver by adding thereto a strip of land, 5Y^ miles long by IVii miles wide, lying along the eastern border and wholly within the county of Jefferson. If the act adding the Jefferson county strip to the city of Denver be upheld as valid, there might, perhaps, be no escape from the taxa- 1 For . 76 ALTERATION AND DISSOLUTION Thronjjhout these several changes, except the last, the annexa- tion in every instance was made without any regulation that the town to which the territory was annexed should pay any portion of the indebtedness of the town from which the territory annexed was taken. Still not satisfied, the legislature, by the act of the 23d of February, 1857, rearranged the boundaries of each of the three towns, as therein is fully set forth and described. Id. 1857, p. 103. Two years later, the county supervisors changed the name of the town of Racine to Orwell ; but the prior name will be used through- out in this opinion, as less likely to produce confusion in the state- ment of facts. From the time the legislature rearranged the bound- aries of the three towns they remained without alteration until the legislature, March 30, 1860, by a public act, vacated and extinguished the corporation and body politic known as the town of Racine, then called Orwell, and enacted that thereafter it should have no existence as a body politic and corporate. Sess. Laws Wis. 1860, p. 218. Section 2 of the act also provided that all that part of the terri- tory of the town lying north of the described line should be annexed to and hereafter form a part of the town of Caledonia, and that all that part of the territory lying south of that hne should become and continue to be a part of Mt. Pleasant. * * * Counties, cities, and towns are municipal corporations created by the authority of the legislature, and they derive all their powers from the source of their creation, except where the constitution of the state otherwise provides. They have no inherent jurisdiction to make laws or to adopt governmental regulations, nor can they ex- ercise any other powers in that regard than such as are expressly or impliedly derived from their charters or other statutes of the state. Corporations of the kind are composed of all the inhabitants of the territory included within the political organization, each indi- vidual being entitled to participate in its proceedings; but the pow- ers of the organization may be modified or taken away at the mere will of the legislature, according to its own views of public con- venience, and without any necessity for the consent of those compos- ing the body politic. Corporate rights and privileges are usually possessed by such municipalities; and it is equally true that they are subject to certain legal obligations and duties, which may be increased or diminished at the pleasure of the legislature, from which all their powers are derived. Institutions of the kind, whether called cities, towns, or counties, are the auxiliaries of the state in the important business of munici- pal rule; but they cannot have the least pretension to sustain their privileges or their existence upon any thing like a contract between themselves and the legislature of the state, because there is not and ANNEXATION DIVISION OK CONSOLIDATION 77 cannot be any reciprocity of stipulation between the parties, and for the further reason that their objects and duties are utterly incom- patible with every thing partaking of the nature of compact. Instead of that, the constant practice is to divide large municipali- ties and to consolidate small ones, or set off portions of territory from one and annex it to another, to meet the wishes of the resi- dents or to promote the public interests as understood by the legis- lature, — it being everywhere understood that the legislature pos- sesses the power to make such alterations and to apportion the common property and burdens as to them may seem just and eq- uitable. Alterations of the kind are often required to promote the public interests or the convenience and necessities of the inhabitants; and the public history shows that it has been the constant usage in the states to enlarge or diminish the power of towns, to divide their territory by set-off and annexation, and to make new towas when- ever the legislature deems it just and proper that such a change should be made. Old towns may be divided and new ones incor- porated out of parts of the territory of those previously organized ; and in enacting such regulations the legislature may apportion the common property and the common burdens, and may, as between the parties in interest, settle all the terms and conditions of the di- vision of their territory, or the alteration of the boundaries as fixed by any prior law. State legislation may regulate the subject; but if the legislature omits to do so, the presumption, as between the parties, is that they did not consider that any regulation was necessary. Where none is made, in case of division the old corporation owns all the public property within her new limits, and is responsible for all the debts of the corporation contracted before the act of separation was passed. Debts previously contracted must be paid entirely by the old corporation, nor has the new municipality any claim to any portion of the public property, except what falls within her bound- aries, and to that the old corporation has no claim whatever. Lar- amie Co. V. Albany Co., 92 U. S. 307 ; Bristol v. New Chester, 3 N. H. 521. Apply these principles to the admitted facts of the case, and it is clear that every one of the described changes made in the limits and boundaries of the rcsponflcnt niunicii)alilies become wholly inuna- terial in this investigation, except the last two, as hereafter more fully explained. Before the passage of those two acts, the claim of the complain- ant against the town of Kacinc was, beyond all qucstic^n, valid and collectible. Nobody controverts that proposition, and it is clear that no defence to the action could have been sustained for a mo- ment. I5y the act of March 30, 1S60. the legislature of the state 78 ALTEUATION AND DISSOLUTION vacated and extinguished the corporation and body politic formerl)' known as Racine, then called Orwell, and annexed the whole area of the territory included in the municipality to the two adjacent towns of ]\It. Pleasant and Caledonia, in the proportions and by the boundary lines described in the second section of the legislative act. Had legislation stopped there, it is clear that the city of Ra- cine would not have been liable for any portion of the debt of the extinguished municipal corporation ; but it did not stop there, as ap- pears by what follows. Prior to the passage of that act, the old town of Racine was the sole obligor in the bonds held by the complainant; and there cer- tainly is nothing in the provisions of that act which tends in the least degree to create any liability on the part of any other munici- pality for the indebtedness of that town, except the towns of Mt. Pleasant and Caledonia. Nothing had previously occurred to cre- ate any liability on the part of the city of Racine to pay any pro- portion of the debts of the old town of Racine, which issued the bonds described in the bill of complaint. Until the passage of the act of the 17th of March, 1871, the rights of all parties remained unchanged. By that act a portion of the territory formerly belonging to the old town of Racine was set ofif from the town of Mt. Pleasant and was annexed to the city of Ra- cine. Appended to that act, and a part of it, was the provision that the city to which the described territory was annexed "shall assume and pay so much of the indebtedness of the town of Racine as the lands described in the first section of the act may be or be- come legally chargeable with and liable to pay." Priv. Laws Wis. 1871, p. 723. Enough appears in that provision of direct legislation to show that the city of Racine was thereby made liable for the debts of the ex- tinguished town of Racine in the proportion therein described ; and the clear inference from the provision is that the town of Mt. Pleas- ant, prior to the passage of that act, was liable for the debts of that old municipality in proportion to the whole extent of the territory annexed to her by the prior act which extinguished the old munici- pal corporation. None, it is presumed, will deny the liability of the city of Racine for those debts in the proportion described in the act creating the liability, and hence it is that the corporate authorities of the city acquiesced in the decree of the circuit court without ap- peal. Parties who do not appeal from the final decree of the circuit court cannot be heard in opposition to the same when the case is regularly brought here by other proper parties. They may be heard in sup- port of the decree and in opposition to every assignment of error, but they cannot be heard to show that the decree below was erro- neous. The Stephen Morgan, 94 U. S. 599. ANNEXATION DIVISION OR CONSOLIDATION 79 Concede that, and it follows that the only question open in the case for examination is whether the other two respondent municipal corporations are liable to any extent for the debts of the extin- guished municipality, portions of whose territory were transferred by the legislature into their respective jurisdictions. We say, liable to any extent, because the question of amount was submitted to the master, and the record shows that neither of the appellants excepted to the master's report. Gordon v. Lewis, 2 Sumn. 143, Fed. Cas. No. 5,613; McMicken v. Perin, 18 How. 507, 15 L. Ed. 504. Nor do either of the assignments of error allege that the master commit- ted any error in that regard. Brockett v. Brockett, 3 How. 691, 11 L. Ed. 786. Viewed in that light, as the case should be, it is clear that if the appellants are liable at all they are liable for the respective amounts' specified in the decree. Harding v. Handy, 11 Wheat. 103, 6 L. Ed. 429. Story v. Livingston, 13 Pet. 359, 10 L. Ed. 200. Where one town is by a legislative act merged in two others, it would doubtless be competent for the legislature to regulate the rights, duties, and obligations of the two towns whose limits are thus enlarged; but if that is not done, then it must follow that the two towns succeed to all the public property and immunities of the ex- tinguished municipality. Morgan v. City and Town of Beloit, 7 Wall. 613, 617, 19 L. Ed. 203.^ It is not the case where the legislature creates a new town out of a part of the territory of an old one, without making provision for the payment of the debts antecedently contracted, as in that case it is settled law that the old corporation retains all the public prop- erty not included within the limits of the new municipality, and is liable for all the del)ts contracted by her before the act of separa- tion was passed. Town of Depere v. Town of Bellevue, 31 Wis. 120, 125, 11 Am. Rep. 602. Instead of that, it is the case where the charter of one corpora- tion is vacated and rendered null, the whole of its territory being an- nexed to two others. In such a case, if no legislative arrange- ments are made, the effect of the annulment and annexation will be that the two enlarged corporations will be entitled to all the public property and immunities of the one that ceases to exist, and tliat they will become liable for all the legal debts contracted by her prior to the time when the annexation is carried into operation. Speaking to the same point, the supreme court of Missouri held that where one corporation goes entirely out of existence by being annexed to f)r merged in another, if no arrangements arr made re- specting the i)roperly and liabilities of the corporation that ceases to exist, the subsisting corpf)ration will be entitled t(j all the jiroperty and be answerable for all the liabilities. Thompson v. Abbott, 61 Mo. 176, 177. 80 ALTERATION AND DISSOLUTION Grant that, and it follows that when the corporation first named ceases to exist there is then no power left to control in its behalf any of its funds, or to pay ofif any of its indebtedness. Its property passes into the hands of its successor, and when the benefits are taken the burdens are assumed, the rule being that the successor who takes the benefits must take the same cum onere, and that the successor town i,s thereby estopped to deny that she is liable to re- spond for the attendant burdens. Swain v. Seamens, 9 Wall. 254, 274, 19 L. Ed. 554; Pickard v. Sears, 6 Adol. & E. 474. Powers of a defined character are usually granted to a municipal corporation, but that does not prevent the legislature from exercis- ing unlimited control over their charters. It still has authority to amend their charters, enlarge or diminish their powers, extend or limit their boundaries, consolidate two or more into one, overrule their legislative action whenever it is deemed unwise, impolitic, or unjust, and even abolish them altogether, in the legislative discre- tion, and substitute in their place those which are different. Cooley, Const. Lim. (4th Ed.) 232. Municipal corporations, says Mr. Justice Field, so far as they are invested with subordinate legislative powers for local purposes, are mere instrumentalities of the state for the convenient administra- tion of their alifairs ; but when authorized to take stock in a railroad company, and issue their obligations in payment of the stock, they are to that extent to be deemed private corporations, and their obli- gations are secured by all the guaranties which protect the engage- ments of private individuals. Broughton v. Pensacola, 93 U. S. 266, 269, 23 L. Ed. 896. Modifications of their boundaries may be made, or their names may be changed, or one may be merged in another, or they may be divided and the moieties of their territory may be annexed to oth- ers ; but in all these cases, if the extinguished municipality owes out- standing debts, it will be presumed in every such case that the leg- islature intended that the liabilities as well as the rights of prop- erty of the corporation which thereby ceases to exist shall accom- pany the territory and property into the jurisdiction to which the territory is annexed. Colchester v. Seaber, 3 Burrows, 1866. Neither argument nor authority is necessary to prove that a state legislature cannot pass a valid law impairing the obligations of a contract, as that general proposition is universally admitted. Con- tracts under the constitution are as sacred as the constitution that protects them from infraction, and yet the defence in this case, if sustained, will establish the proposition that the efifect of state legis- lation may be such as to deprive a party of all means of sustaining an action of any kind for their enforcement. Cases, doubtless, may arise when the party cannot collect what is due under the contract; ANNEXATION DIVISION OK CONSOLIDATION 81 but he ought ahvays to be able by some proper action to reduce his contract to judgment. Suppose it be admitted that the act of the state legislature an- nulling the charter of the municipality indebted to the complainant, without making any provision for the payment of outstanding in- debtedness, was unconstitutional and void, still it must be admitted that the very act which annulled that charter annexed all the terri- tory and property of the municipality to the two appellant towns, and that they acquired with that the same power of taxation over the residents and their estates that they previously possessed over the estates of the inhabitants resident within their limits before their boundaries were enlarged. Extinguished municipal corporations neither own property, nor have they any power to levy taxes to pay debts. Whatever power the extinguished municipality had to levy taxes when the act passed annulling her charter terminated, and from the moment the annexa- tion of her territory was made to the appellant towns, the power to tax the property transferred, and the inhabitants residing on it, be- came vested in the proper authorities of the towns to which the ter- ritory and jurisdiction were by that act transferred ; from which it follows that for all practical purposes the complainant was left with- out judicial remedy to enforce the collection of the bonds or to re- cover judgment for the amounts they represent. When the appellant towns accepted the annexation, their authori- ties knew, or ought to have known, that the extinguished municipal- ity owed debts, and that the act effecting the annexation made no pro- vision for their payment. They had no right to assume that the annulment of the charter of the old town would have the effect to discharge its indebtedness, or to impair the obligation of the con- tract held by its creditors to enforce the same against those holding the territory and jurisdiction by the authority from the legislature and the public property anrl the power of taxation previously held and enjoyed by the extinguished municipality. Express provision was made by the act annulling the charter of the debtor municipality for annexing its territory to the appellant towns ; and, when the annexation became complete, the power of taxation previously vested in the inhabitants of the annexed terri- tory as a separate municipality ceased to exist, whether to pay debts or for any other purpose, — the reason being that the power, so far as rcspecterl its future exercise, was transferred with the territory and the jurisdiction over its inhabitants to the ai)pcllant towns, as enlarged by the annexed territory; from which it follows, unless it be held that the extinguishment of the debtor municipality dis- charged its debts without payment, which the cf)nstitution forbids, that the appellant towns assumed each a proportionate share of the CooLEY Ca.seh Mun.C. — 6 82 ALTERATION AND DISSOLUTION outstanding obligations of the debtor town when they acquired the territory, pubHc property, and municipal jurisdiction over every thing belonging to the extinguished municipality. Corporations of a municipal character, such as towns, are usually organized in this country by special acts or pursuant to some gener- al state law ; and it is clear that their powers and duties differ in some important particulars from the towns which existed in the parent country before the Revolution, where they were created by special charters from the crown, and acquired many of their privileges by prescription, without any aid from parliament. Corporate franchis- es of the kind granted during that period partook much more large- ly of the nature of private corporations than do the municipalities created in this country, and known as towns, cities, and counties. Power exists here in the legislature, not only to fix the boundaries of such a municipality when incorporated, but to enlarge or dimin- ish the same subsequently, without the consent of the residents, by annexation or set-off, unless restrained by the constitution, even against the remonstrance of every property holder and voter within the limits of the original municipality. Property set off or annexed may be benefited or burdened by the change, and the liability of the residents to taxation may be increased or diminished ; but the question, in every case, is entirely within the control of the legislature, and, if no provision is made, every one must submit to the will of the state, as expressed through the legis- lative department. Inconvenience will be suffered by some, while others will be greatly benefited in that regard by the change. Nor is it any objection to the exercise of the power that the property an- nexed or set off will be subjected to increased taxation, or that the town from which it is taken or to which it is annexed will be benefit- ed or prejudiced, unless the constitution prohibits the change, since it is a matter, in the absence of constitutional restriction, which be- longs wholly to the legislature to determine. Courts everywhere in this country hold that, in the division of towns, the legislature may apportion the burdens between the two, and may determine the proportion to be borne by each. Sill v. Village of Corning, 15 N. Y. 297; Mayor, etc., of City of Baltimore v. State, 15 Md. 376, 74 Am. Dec. 572; City of Olney v. Harvey, 50 111. 453, 99 Am. Dec. 530; Borough of Dunsmore's Appeal, 52 Pa. 374. Public property and the subordinate rights of a municipal corpo- ration are within the control of the legislature ; and it is held to be settled law that, where two separate towns are created out of one, each, in the absence of any statutory regulation, i.s entitled to hold in severalty the public property of the old corporation which falls within its limits. North Hempsted v. Hempsted, 2 Wend. 109; Hartford Bridge Co. v. East Hartford, 16 Conn. 149, 171. * * " Affirmed. ANNEXATION DIVISION OR CONSOLIDATION 83 JOHNSON V. CITY OF SAN DIEGO. (Supreme Court of California, 1S95. 109 Cal. 468, 42 Pac. 249, 30 L. R. A. 178.) Action by P. L. Johnson and others against the city of San Diego to determine what proportion, if any, of the bonded indebtedness of San Diego was properly chargeable on certain territory excluded from that city. From the judgment rendered, defendant appeals. Henshaw, J.** Appeals from the judgment and from the order denying a new trial. Under an act of the legislature approved March 19, 1889 (St. 1889, p. 356), a portion of the territory formerly embraced within the corporate limits of the city of San Diego was ex- cluded therefrom. The act referred to was in its nature permissive. It provided for the calling of an election upon petition, at which election the qualified electors within the territory proposed to be segregated should vote separately from the other voters of the mu- nicipal corporation, and the votes cast in such territory should be canvassed separately from the votes cast by the other electors of the municipality. If a majority of the votes cast in the territory proposed to be excluded and a majority of the votes cast in the municipality proper should both be for the segregation, then, after certain formalities had been complied with, the territory should cease to be a part of the municipal corporation, "provided [so rtms the law] that nothing contained in this act shall be held to relieve in any manner whatsoever any part of such territory from any liability for any debt contracted by such municipal corporation prior to such exclusion : and provided further that such municipal corporation is hereby authorized to levy and collect from any territory so excluded from time to time, such sums of money as .shall be found due from it on account of its just proportion of liability for any payment on the principal or interest of such debts. * * * Under this law, the territory known as the "Coronado Beach," which contains the land of these plaintiffs, was excluded from the corj)orate control of the city of San Diego. At the time of this ex- clusion, the city of San Diego had a bonded indebtedness of $484,- 000; anfl, after this exclusion, the city continued to assess and levy taxes upon the detached territory to meet the requirements of this bonded iMZ N. E. 138, 43 L. MUNICIPAL POWERS — INHERENT — EXPRESS — IMPLIED 99 R. A. 834; Reinken v. Fuehring, 130 Ind. 382, 30 N. E. 414, 15 L. R. A. 624, 30 Am. St. Rep. 247. Street sprinkling is as necessary as street cleaning, and no one would contend, we think, that a town or city may not employ and pay men for cleaning its streets and crossings. There is no requirement that the matter be covered by ordinance or resolution. The work is not of such a nature as to require such formalities. The demurrer should have been sustained, and a judgment entered dismissing plain- tiffs' petition. The decree must be reversed, and the cause remanded for one in harmony with this opinion. Reversed and remanded. GREEN et al. v. CITY OF CAPE MAY. (Supreme Court of New Jersey, 1879. 41 N. J. Law, 45.) This action was brought by Green & Piatt, partners, to recover from the city of Cape May the price of a Babcock steam fire engine and ten fire extinguishers, alleged to have been sold by the plaintiffs to the defendants. A verdict was rendered for the plaintiffs. A rule to show cause why a new trial should not be granted was allowed by the trial judge. Ref.d, J.- The main contention by the counsel of the defend- ants is, that there was no power in the defendants, the city of Cape May, to make a contract for the purchase of a steam fire engine and extinguishers. If this is so, the contract in question is ultra vires and invalid. In turning to the charter of the defendants (P. L. 1851, p. 112), we find in sections 13 and 18 the source of whatever power the defendants possess relative to contracts like the one under considera- tion. In section 13, among the powers conferred upon the city coun- cil is the authority to pass ordinances for the prevention and suppres- sion of fires, and to appoint and remove fire warden.s, and, by ordi- nance, to prescribe the power and duty of such fire wardens, and of the fire engineers and firemen. The clause in section 18 confers the right to raise money by taxation for supporting the fire engine de- partment. There is nowhere a specific grant of power to purchase engines and apparatus. The contention, therefore, is that such i)owcr does not exist. I5ut tliis contention is not tenable. The rule that an express grant of power carries with it a grant of those powers neces- sarily or fairly implied in or incident to the power expressly granted, is indisi)utablc. 1 Dill. Mun. Corp. § 55. The power to suppress fires, etc., would be nugatory without the I)ower to obtain the means by which the suppression can be effected. The authority to prescribe the power and duties of firemen and fire engineers imi)lies that there shall be apparatus, in the management of 2 I'art of the opiiiiuu i.s oiuitted. 100 THE CHARTER which duties shall arise and hecome the subject of municipal regula- tion. The power to organize a fire department unaccompanied with the power to equip the department with apparatus, would be as futile as the privilege of raising an army without the power to provide weapons or subsistence. The power to do either would imply the power to eiifectuate the intent involved in the grant by the execution of its incidents. The contracts for the purchase of apparatus are clearly among the incidents of the grant. The power to purchase fire engines, has been, in several states, sustained under the authority of the city to make police regulations for public safety, which, it is held, confers the power to take measures for the prevention of fires. Whether the power to suppress fires arises from the general safety clause of the charter, or from express grant, it carries with it the right to purchase fire en- gines. 1 Dill. Mun. Corp. § 94. I therefore think the power to pur- chase the engine and extinguishers was in the defendants. The rule to show cause is discharged, with costs. * 2. GSNERAi. Welfare: Clause CITY OF CRAWFORDSVILLE v. BRADEN. (Supreme Court of Indiana, 1891. 130 Ind. 149, 28 N. E. 849, 14 L. R. A. 268, 30 Am. St. Rep. 214.) Bill by Hector S. Braden to enjoin the city of Crawfordsville from supplying private citizens with electric light. From a decree overrul- ing defendant's demurrer, and allowing a perpetual injunction, defend- ant appeals. McBridE, J.^ The question we are required to decide in this case is, has a municipal corporation in this state the power to erect, maintain, and operate the necessary buildings, machinery, and appli- ances to light its streets, alleys, and other public places with the elec- tric light, and at the same time, and in connection therewith, to supply electricity to its inhabitants for the lighting of their residences and places of business. Some other questions are incidentally involved, but the principal controversy is as above stated. That a city or an incorporated town may buy and operate the necessary plant and machinery to light its streets, alleys, and other public places is not controverted by the appellee; but he denies the right to furnish the light to the individual for his private use. The question is argued on the theory that, if the city has such pow- er, it must be by virtue of some express legislative grant, and is not 3 Part of the opinion is omitted. MUNICIPAL POWERS — INHERENT — EXPRESS — IMPLIED 101 among the implied powers possessed by municipal corporations ; that statutes conferring powers upon municipal corporations, especially those involving the exercise of the taxing power, must be strictly con- strued ; and that, strictly construed, no statute confers the necessary authority. The purchase of the necessary land, machinery, and ma- terial, and the erection and maintenance of such a plant, does involve the exercise of the taxing power. The necessary funds must be sup- plied by taxing the tax-payers of the municipality. The only statute bearing directly upon this question is the act of March 3, 1883 (El- liott's Supp. § 794 et seq.). Section 794 contains the following : "That the common council of any city in this state, incorporated either under the general act for the incorporation of cities, or under a special char- ter, and the board of trustees of all incorporated towns in this state, shall have the power to light the streets, alleys, and other public places of such city and town w^ith the electric light and^other form of light, and to contract with any individual or corporation for lighting such streets, alleys, and other public places with the electric light or other forms of light, on such terms, and for such times, not exceeding 10 years, as may be agreed upon." Section 795 provides that, for the purpose of efifecting such lighting, the common council of a city or board of trustees of a town may provide, by resolution or ordinance, for the erection and maintenance in the streets, etc., of the necessary poles and appliances. Section 796 authorizes granting to any person or corporation the right to erect and maintain in the streets, etc., the necessary poles and appliances for the purpose of supplying the elec- tric or other light to the inhabitants of the corporation. Section 797 validates contracts of a certain character, made before the enact- ment of the statute ; and section 798 provides for the appropriation of lands and right of way by corporations engaged in the business of lighting cities or towns," or the public and private places of their inhabitants, with the electric light," etc. It will be observed that, while section 796 provides for granting to third persons the right to furnish the light to the inhabitants, it does not, in terms, give any such power to the corporation. It will, there- fore, be necessary for us to inquire if the corporation possesses such power independently of the statute, or, if not, if the statute is sus- ceptible of a fair construction, in accordance with established rules, which clothes the corporation with such power. In the case of Cas Co. v. City of Rushville, 121 Ind. 206, 23 N. E. 72, 6 L. R. A. 315, 16 Am. St. Rep. 388, this statute was considered, in so far as relates to the right of the city to buy and operate the necessary pl.mt ainl ma- chinery to light its streets, alleys, and other public i^laces, and it was held that the statute was sufficient to confer that power. In that case the court, after announcing the conclusion above stated, used the following language: "If there were any doubt as to the meaning of the act, it would be removed by considering it, as it is our duty to do, in connection with the general act for the incorporation of cities; for 102 THE CHARTER that act confers very comprehensive powers upon municipal corpora- tions as respects streets and public works, and contains many broad general clauses akin to those which Judge Dillon designates as 'gen- eral welfare' clauses. Our own decisions fully recognize the doctrine that municipal corporations do possess, under the general act, author- ity as broad as that here exercised, and the operation of that act is certainly not limited or restricted by the act of 1883." The eminent author above referred to thus defines the powers of municipal corporations: "It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others : First, those granted in express words ; second, those necessarily or fairly implied in or incident to the powers expressly granted ; third, those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable. Any fair, reasonable doubt concerning the existence of the power is resolved by the courts against the corporation, and the power is denied. Of every municipal corporation, the charter or stat- ute by which it is created is its organic act. Neither the corporation nor its officers can do any act, nor make any contract, or incur any liability, not authorized thereby, or by some legislative act applicable thereto. All acts beyond the scope of the powers granted are void." Dill. Mun. Corp. (4th Ed.) § 89. Judge Dillon, however, quotes ap- provingly from the supreme court of Connecticut as follows (section 90, p. 147) : "All corporations, whether public or private, derive their powers from legislative grant, and can do no act for which authority is not expressly given or may not be reasonably inferred. But if we, were to say that they can do nothing for which a warrant cannot be found in the language of their charters, we should deny them in some cases the power of self-preservation, as well as many of the means necessary to effect the essential objects of their incorporation. And therefore it has long been an established principle in the law of cor- porations that they may exercise all the powers, within the fair in- tent and purpose of their creation, which are reasonably proper to give effect to powers expressly granted. In doing this, they must (un- less restricted in this respect) have a choice of means adapted to ends, and are not to be confined to any one mode of operation." Bridge- port V. Railroad Co., 15 Conn. 475-501. This principle has been Repeatedly recognized by this court. Thus in Smith v. City of Madison, 7 Ind. 86, it is said: "The strictness, then, to be observed in giving construction to municipal charters, should be such as to carry into effect every power clearly intended to be conferred on the municipality, and every power necessarily implied, in order to the complete exercise of the powers granted." Again, in Kyle V. Malin, 8 Ind. 34-37, the court said : "The action of municipal corporations is to be held strictly within the limits prescribed by the statute. Within these limits, they are to be favored by the courts. MUNICIPAL POWERS — INHERENT — EXPRESS — IMPLIED 103 Powers expressly granted or necessarily implied are not to be de- feated or impaired by a stringent construction." Among the implied powers possessed by municipal corporations in this state are those grouped under the somewhat comprehensive title of "police powers," — a power which it is difficult either to precisely define or limit; a power which authorizes the municipality in certain cases to place restrictions upon the power of the individual, both in respect to his personal conduct and his property, and also furnishes the only authority for doing many things not restrictive in their char- acter, the tendency of which is to promote the comfort, health, con- venience, good order, and general welfare of the inhabitants. The police power primarily inheres in the state; but the legislature may, and in common practice does, delegate a large measure of it to mu- nicipal corporations. The povv^er thus delegated may be conferred in express terms, or it may be inferred from the mere fact of the creation of the corporation. The so-called inferred or inherent police powers of such corporations are as much delegated powers as are those con- ferred in express terms, the inference of their delegation growing out of the fact of the creation of the corporation, and the additional fact that the corporation can only fully accomplish the objects of its crea- tion by exercising such powers. S.^ecial charters, as well as general statutes for the incorporation of cities and towns, usually contain a specific enumeration of powers granted to, and which may be exercised by, such corporations. In many cases, the powers thus enumerated are such as would be implied by the mere fact of the incorporation. Where powers are thus enu- merated in a statute which would belong to the corporation without specific enumeration, the specific statute is to be regarded, not as the source of the power, but as merely declaratory of a pre-existing pow- er, or, rather, of a power which is inherent in the very nature of a municipal corporation, and which is essential to enable it to accom- plish the end for which it is created. And the enumeration of powers, including a portion of those usually implied, does not necessarily op- erate as a limitation of corporate powers, excluding those not enu- merated. Clark V. City of South Bend, 85 Ind. 276, 44 Am. Rep. 13; Rank V. Sarlls. 129 N. E. 201, 28 N. E. 434, 13 L. R. A. 481, 28 Am. St. Rep. 185. The corporation, notwithstanding such enumeration, still possesses all of the usually implied powers, unless the intent to exclude them is apparent either from express declaration, or by reason of inconsistency between the specific jjowers conferred and those which would other- wise be implied. The legislature can unf|ucstionably take from mu- nicipal corporations powers which would infcrentially be conferred upon them by tlieir creation, or it can restrict the exercise of such powers, or in any manner control their exercise; the legislative will being as to such matters supreme. \nK)ng the implied jjowers pos- sessed by municipal corporations is the power to enact and enforce 104 THE CHARTER reasonable by-laws and ordinances for the protection of health, life, and property. Thus, in this state it has been held that, independently of any statutory authority such corporations possess the inherent power to enact ordinances for the protection of the property of its citizens against fire. Baumgartner v. Hasty, 100 Ind. 575, 50 Am. Rep. 830; Bank v. Sarlls, supra; Hasty v. City of Huntington, 105 Ind. 540, 5 N. E. 559 ; Clark v. City of South Bend, 85 Ind. 276, 44 Am. Rep. 13 ; Corporation of Bluffton v. Studabaker, 106 Ind. 129, 6 N. E. 1. This power will not only authorize the enactment and en- forcement of ordinances establishing fire limits, regulating building and repairing buildings, and regulating the storage and traffic in in- flammable or explosive substances, but the purchase of apparatus for extinguishing fires and furnishing a supply of water. Corporation of Bluffton V. Studabaker, supra. In the case of City of St. Paul v. Laidler, 2 Minn. 190, (Gil. 159,) 72 Am. Dec. 89, the supreme court of Minnesota, after holding that a municipal corporation is "a creature of the law, and in the exercise of its authority cannot exceed the lim- its therein prescribed," says : "It is a body of special and limited jurisdiction; its powers cannot be extended by intendment or implica- tion, but must be confined within the express grant of the legislature ;" and then says further : "Incidental to the ordinary powers of a mu- nicipal corporation, and necessary to a proper exercise of its functions, is the power of enacting sanitary regulations for the preservation of the lives and health of those residing within its corporate limits." If this statement is correct, it follows that to concede to municipal corporations the possession of such powers does not involve any ex- tension, either by intendment or implication, of the powers expressly conferred by statute; but that, by the act authorizing the organization of the corporation, the legislature expressly delegates to the municipal- ity the power to take such steps as are necessary to preserve the health and safety (and we will add the property) of its inhabitants. The in- ference of the delegation of such powers follows inevitably and irre- sistibly, because their exercise is necessary to the accomplishment of the objects of the incorporation. When a municipal corporation at- tempts to exercise any of the powers thus implied, or inferentially conferred, it is within the rule of Kyle v. Malin, supra, as fully as it is when attempting to exercise those powers the warrant for which is found in the express letter of its organic law. It is to be favored by the courts, and such powers are not to be defeated or impaired by a stringent construction. It is, of course, important and necessary to know in each case that the power claimed is in fact included in the implied powers of the corporation. There can be little or no doubt that the power to light the streets and public places of a city is one of its implied and inherent powers, as being necessary to properly protect the lives and property of its in- habitants, and as a check on immorality. * * * Wherever men herd together, in villages, towns, or cities, will be found more or less MUNICIPAL POWERS — INHERENT — EXPRESS — IMPLIED 105 of the lawless and vicious, and crime and vice are plants which flourish best in the darkness. So far as lighting the streets, alleys, and public places of a municipal corporation is concerned, we think that, inde- pendently of any statutory power, the municipal authorities have in- herent power to provide for lighting them. If so, unless their discre- tion is controlled by some express statutory restriction, they may, in their discretion, provide that form of light which is best suited to the wants and the financial condition of the corporation. It is well settled that the discretion of municipal corporations, within the sphere of their powers, is not subject to judicial control, except in cases where fraud is shown, or where the power or discretion is being grossly abused, to the oppression of the citizen. Valparaiso v. Gardner, 97 Ind. 1, 49 Am. Rep. 416; 15 Amer. & Eng. Enc. Law, 1046, and authorities there cited. We can see no good reason why they may not also, without statutory authority, provide and maintain the neces- sary plant to generate and supply the electricity required. Possessing authority to do the lighting, that power carries with it incidentally the further power to procure or furnish whatever is necessary for the production and dissemination of the light. The only authority cited which holds a contrary doctrine is that of Spaulding v. Inhabitants, 153 Mass. 129, 26 N. E. 421, 10 L. R. A. 397. We are, however, unable to recognize the validity of the rea- soning in that case. We are unable to see the analogy between the city of Boston, because authorized to light its streets, engaging in whale fishery to procure oil for that purpose, or the other supposed cases, and the generation and supply of electricity. Electricity is not a commodity which can be bought in the markets, and transported from place to place like oil. We take judicial notice of the laws of nature and of nature's powers and forces, and therefore take judicial notice of that which is known as "electricity," and of its properties ; not, of course, of the various methods of generating and transmitting or using it, but of the thing itself, and of its nature. As in many other cases, here the judicial presumption outruns the fact, and we are supposed to know and to take judicial notice of more than we can in fact know in the present state of scientific knowledge. We must know, however, that it cannot be generated and transported from place to place as we can procure and transport oil, clothing, etc., and that it can only be conveyed from the place where it is generated to where it is needed for lighting the streets, or to the numerous inhabitants of a city, so as to enable them to use it as a general illuminant by invok- ing and exercising the power of eminent domain. The corporation possessing, as it does, the power to generate and distribute throughout its limits electricity for the lighting of its streets and other public places, wc can see no good reason why it may not also at the same time furnish it to the inhabitants to light their resi- dences and places of business. To do so is, in our opinion, a legiti- mate exercise of the police power for the preservation of property and lOG THE CHARTER heallh. It is averred in the complaint that the light which the city proposes to furnisli for individual use is the incandescent light. Here, again, is a fact of which wc are authorized to take judicial knowledge. A li-,du thus produced is safer to property and more conducive to health than the ordinary light. Produced by the heating of a filament of carbon to the point of incandescence in a vacuum, there is nothhig to set property on fire, or to consume the oxygen in the surrounding air. and thus render it less capable of sustaining life and preserving health. But little authority has been cited bearing on the precise ques- tion, and we have been able to find but little. * * * While the authorities on the precise question are meager, we think the weight of authority, as well as of reason, tends to sustain the right of the municipality through its proper officers, acting in the exercise of a sound discretion, to furnish light as well as water to its inhabit- ants, not only in its public places, but in their private houses and places of business. * * * Reversed. TOWN OF NEWPORT v. BATESVILLE & B. RY. CO. (Supreme Court of Arkansas, 1893. 58 Ark. 270, 24 S. W. 427.) Action by the Batesville & Brinkley Railway Company against the town of Newport on a contract for the construction of a levee. From a judgment for plaintiff, defendant appeals. Hughes, J.* The facts in this case are substantially as follows: The town of Newport made a contract with the Batesville & Brinkley Railway Company to construct a levee on two sides of the town to protect it from overflow, and was to pay the company therefor, in the warrants of the town, $10,000, and the railway company was to have the privilege of using the levee as a roadbed for its railway. One line of the levee was completed, accepted, and paid for by the town, after which it declined and refused to accept and pay for the other line of the levee, one of these lines being north, and the other south, of the town. The company having, as it contends, completed the levee according to the contract, brought this suit to recover a balance of $4,480, which it alleges to be due on the contract. * * * Had the incorporated town of Newport the power to make the con- tract which was the foundation of this suit? In 1 Dill. Mun. Corp. § 89, it is said : "It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable. Any fair, reasonable doubt concerning the existence of power is resolved by the * Part of the oinnion is omitted. MUNICIPAL POWERS — INHERENT — EXPRESS — IMPLIED 107 courts against the corporation, and the power is denied." In Spaulding V. City of Lowell, 23 Pick. (Mass.) 71, 74, Chief Justice Shaw, in speak- ing of municipal and public corporations, says : "They can exercise no powers but those which are conferred upon them by the act by which they are constituted, or such as are necessary to the exercise of their corporate powers, the performance of their corporate duties, and the accomplishment of the purposes of their association." "It is proper, too, that these powers should be strictly construed, considering with how little care chartered privileges are these days granted." liank V. Town of Chillicothc, 7 Ohio, pt. 2, pp. 31, 35, 30 Am. Dec. 185; Port Huron v. McCall, 46 Mich. 565, 10 N. W. 23. "They act, not by any inherent right of legislation, like the legislature of the state, but their authority is delegated, and their powers, therefore, must be strictly pursued." Is there any express grant of power to an incorporated town to make a contract for the building of a levee? Section 740, Mansf. Dig., provides that "the city council shall have power to establish and construct and to regulate landing places, levees," etc. Section 8 of the incorporation act of March 9, 1875. This refers to cities of the first and second class, but not to incorporated towns. Their powers are not always the same. In enumerating the powers of municipal corpora- tions of all classes in section 18 of the act of March 9, 1875, the power to construct levees is not given, though, as we have seen, it is given in section 8 of the act to cities of the first and second class. It follows, therefore, that there is no express grant of power to incorporated towns to construct levees. Construing the powers of municipal corporations strictly, does it appear beyond "any fair, reasonable doubt" that the power of an in- corporated town to make a contract for the construction of a levee exists? Is such power "necessarily or fairly implied in or incident to the j>owers expressly granted," or is such a power "essential to the declared objects and i)urposes of the corporation, not simply con- venient, but indispensable?" It does not appear to us that it is nec- essary that an incorporated town should possess such a power, in order to the exercise of its corporate powers, the perforniance of its corporate duties, and the accom])lishnicnt of the purposes of its organization. Unless such is the case, the power is not implied from the grant of general powers to an incorporated town. Spaul- ding V. City of Lowell, 23 Pick. (Mass.) 71, 74. No "long-estab- lishment and well-settled usage" appears to have existed with incor- porated towns to exercise the power to construct levees. In Minturn V. Larue, 23 How. 435, 16 L. Ed. 574, the court said : "It is a well- settled rule of construction of grants by the legislature to corporations, whether public or private, that only such i)o\vers and rigiits cm be exercised under them as are clearly comprehended within the words of the acts, or derived therefrom by necessary (fair and reasonable) ins THE CHARTER implication, regard being had to the objects of the grant. Any am- biguity or doubts arising out of the terms used by the legislature must be resolved in favor of the public." Thomson v. Lee Co., 3 Wall. 327, 18 L. Ed. 177. In Leonard v. City of Canton, a good reason is given for the rule that grants to corporations by the legislature should be strictly construed. It is because they "are invested with a portion of the authority that properly appertains to the sovereign power of the state," and the state never surrenders its just authority save by grants that are clear and unambiguous. 35 Miss. 189. When the ex- ercise of power by a municipal corporation will result in the imposi- tion of burdens or taxes upon the inhabitants, the existence of the power ought to be clear, beyond a fair, reasonable doubt. A different rule might lead to mischievous and oppressive consequences. We are of the opinion that the incorporated town of Newport, in making the contract for the construction of the levee in this case, acted without either express or implied power, and that the contract was therefore void. * * * Reversed. II, Exercise of Powers ^ CITY OF BIDDEFORD v. YATES. (Supreme Judicial Court of Maine, 1908. 104 Me. 506, 72 Atl. 335, 15 Ann. Cas. 1091.) Trespass quare clausum by the City of Biddeford against Fred- erick Yates. Case reported to the law court. Spear, J." This is an action of trespass involving the validity of a lease of the plaintiff to the defendant. There is no material dispute upon the facts. The locus in quo is the "opera house," so called, embracing the hall in the city building and used for the purpose of giving plays, operas, etc., together with all the rooms and appurtenances belonging to and connected with the hall. On May 24, 1904, the plaintiff was the owner of the hall and appurte- nances. On the same day the city council by its committee on public property made and delivered to the defendant an instru- ment, purporting to be a lease of the hall, expiring June 1, 1907. On February 20, 1907, another city council by the same committee made a second instrument purporting to be a lease of the same hall to take effect, in futuro, at the expiration of the first lease, to wit, June 1, 1907, for a term of three years from the latter date. Between February 20, 1907, the date of the second lease, and June 5 For discussion of iirincii.Ies, see Cooley, Mun. Corp. § 41. • Part of the opinion is oaiitted. EXERCISE OF POWERS 109 1, 1907, when it w^as to take effect, the term of ofifice of the city officials under whom this lease was made had expired, and on the third ^londay of March a new city government had been inaugu- rated. On the 10th day of June, the city council passed the following order: "Ordered that the city solicitor be, and hereby is, authorized to obtain possession of the opera house and to adopt any proceed- ings that he may deem necessary therefor, including the institution and prosecution of any action at law or equity." On the 23d day of August, 1907, the city solicitor, Avhose official capacity is admitted, took physical possession of the leased prem- ises without the knowledge or consent of the lessee, for the express purpose of excluding him therefrom, and notified the defendant of his assumption of possession and the purpose thereof and to abstain from any interference therewith. On the 24th day of August, Yates, the lessee demanded of the city solicitor permission to en- ter, without being obliged to break in, claiming a right of occu- pancy under the instrument purporting to be a lease dated Febru- ary 20, 1907. Being refused admission, he forcibly entered and took possession of the hall. This was the only public hall owned by the city of Biddeford from May 1, 1904, to the date of the plaintiff's writ. The charter of the city of Biddeford contains the following clause: "The city council shall have the care and superintendence of city buildings and the custody and management of all such property, with power to let or sell what may be legally let or sold." Under the city char- ter admitted to have been duly accepted, authorizing the establish- ment of by-laws and ordinances for the government of the city, was promulgated in 1887 the following ordinance : "Chapter 15. City Building. Section 1. The committee on pub- lic property shall have the care and custody of such building and its appurtenances, and all the alterations and repairs thereof. Sec. 2. The said committee are authorized to lease any part of said building not already under lease or appropriated to any of the branches of the city government for any period not exceeding the term of three years, and ui)on such terms and conditions as they may deem cx])cdicnt, subject, however, to the api)roval of the mayor and aldermen." * * * Plaintiff admits the authority of the city government to lease the opera house, if of that species of city property that "may be legally let." but the city claims that the property covered I)\- ilic second lease was "already under lease," and tluTcforc within the exception of the ordinance. Chapter l.'^. § 2. \Vc think this position un- tenable. The second lease did not take effect until after the ex- piration of the term of the first one, and therefore cannot be said, in the senst- in which the orrlinance should be construed, to cover property "already under lease." The interpretation of this phrase 110 THE CHARTER as claimed by the plaintiff would prevent the city from renewing a lease even a day before it expired. Such construction is contrary to all business methods and should not be established unless the language of the ordinance expressly requires it. The phraseology docs not require it, but rather its usual and ordinary meaning, the one naturally suggested, is that the city should not execute two leases covering the same property for the same period of time. If the ordinance was intended to mean any more than this, it could easily have been made to say so; and, if the construction claimed by the plaintiff' had been in the mind of the legislature, it would have said so. It would never have left so important and unusual a provision, if intended to mean what the plaintiff claims, to be established by the uncertain interpretation permissible by the lan- guage employed. Again, the plaintiff contends that the premises let were public property, and could be rented only for public purposes (Thorndike V. Camden, 82 Me. 39, 19 Atl. 95, 7 L. R. A. 463; Goss v. Green- leaf, 98 Me. 436, S7 Atl. 581), and could be used for private pur- poses when not needed for public use (Reynolds v. Waterville, 92 Me., dissenting opinion, page 317, 42 Atl. 559, and cases cited), and that under the leases in question the public use was made sub- servient to the private use. The agreed statement does not- furnish any evidence of this contention, and, so far as it goes, tends to show the reverse; it being admitted that the part of the city building known as the "opera house" was not appropriated to the use of the city, and was reserved for Memorial Day, for the graduation exercises of the high school, and necessary rehearsals therefor. The lessee was also required to let the hall, when not otherwise engaged in good faith, on the payment of running expenses for any public purpose upon application by the mayor, to any political body in the city at the request of the chairman of respective city com- mittees, and to any established church in the city one day in each year to each such church. It appears that the opera house was subject to all these public uses free from any charge except the running expenses. These would have to be paid by some one, whether the city or the lessee was in control of the hall. Our conclusion is that under section 4 of the charter, which pro- vides that the city council shall have "power to let or sell what may be legally let or sold," the first question should be answered in the affirmative. We need not look beyond the city charter for au- thority to exercise this power on the part of the city, as the charter is an act of the Legislature, and the section under consideration violates no provision of the Constitution. Whether the city government could delegate authoritv to a com- mittee to let city property depends entirely upon whether the dele- gation of such authority invested the committee with judicial or ministerial powers. "Functions which are purely executive, ad- EXERCISE OF POWERS 111 ministrative, or ministerial may be delegated to a committee. It is only such functions as are governmental, legislative, or discre- tionary which cannot be delegated." A. & E. Encyc. of Law, vol. 20, p. 1218. These duties may be simplified by classing them under the head of "ministerial and judicial functions," as the act of every public official is either ministerial or judicial. People v. Jerome, 36 Misc. Rep. 256, 72) N. Y. Supp. 306. A purely "ministerial duty" is one as to which nothing is left to discretion. "Judicial acts" in- volve the exercise of discretionary power or judgment. Judicial acts are not confined to the jurisdiction of judges. No question is raised as to the authority of the city council to appoint a committee on public property, and none could be raised, provided they invested the committee with ministerial powers only. Hence the issue here presented is : "Did the ordinances, under which the committee acted, confer upon it ministerial authority only, or did it go further and clothe it with judicial powers?" To determine this issue, let us analyze the ordinance in question and discover just what powers it did confer upon the committee on public property. The Legislature in granting the charter in- vested the committee with power to let "what may be legally let." The ordinance authorized the committee to lease any part of the building not already under lease or appropriated to the use of the city for any period not exceeding three years. It has already been determined that the lease embraced only what might be "legally let." So far the authority of the ordinance comports with that of the charter. The substance of the act conferred by the charter was the right to lease. The appointment of a committee by an ordi- nance was a proper and convenient way to carry out the details of the right conferred. Without any ordinance at all, the city council could have let the hall. The charter so provided. The ordinance, therefore, was made, as all ordinances are, for the purpose of pre- scribing a permanent method of transacting the particular business involved. Therefore the language of the ordinance that the com- mittee may lease "upon such terms and conditions as they may deem expedient" involves simply those ministerial acts necessary to perform the act of leasing. In tlic light of the context which determines that a lease may be made, what shall be let, and the term of the lease, this clause seems to have been used for the pur- l^ose of authorizing the committee to negotiate the various details which might arise in connection with the transaction involved. Those things which it would be impossible for an ordinance to pre- scribe in detail were left to the action of the committee. An illus- tration of this [)oint is found in the present case, where the speci- fications, submitted by the lessee, prescribing various things which he stipulated to do, embrace 3 full pages and from 20 to 30 different items. * * ♦ 112 THE CHARTER The right of the city council to delegate its authority to a com- mittee to perform acts which the council itself might legally do was raised in Hitchcock v. Galveston, 96 U. S. 341, 24 L. Ed. 659, m which the court hold: "If the city council had lawful authority to contract the sidewalks, involved in it was the right to direct the mavor and the chairman on streets and alleys to make a con- tract on behalf of the city for doing the work. We spend no time in vindicating this proposition. It is true the city 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. Nothing more was done in this case." This case also clearly determines that, when a city council is au- thorized to make a contract, it can appoint a committee to nego- tiate the details. To the same effect is Han. & St. Jo. R. R. Co. v. Marion County, 36 Mo. 296, in which it was, contended by the defendant that the county court was the only agent authorized by law to issue instruments in payment to subscribers for stock, and that the instruments were not issued by the court, but by cer- tain justices appointed by the court, and that their act was not binding on the defendant; that is, that the county court could not delegate its authority to the persons named. But the appellate court held otherwise, saying: "When the Legislature empowered the county court to subscribe stock to the railroad company, it also clothed it with the means which might be convenient for mak- ing its action efifectual. The substantive act was the taking of the stock." To the same efifect, also, is Collins v. Holyoke, 146 Mass. 298, 15 N. E. 908, where the court say: "It is true, as contended by the petitioner, that the mayor and aldermen could not delegate the authority given them by the Public Statutes of 1882 (chapter 50, § 1) to lay and make common sewers; but no suggestion is made that the sewer was not legally laid, and it is only objected that it was 'built under the direction and supervision of a committee com- posed of four members of the common council and three aldermen.' But this was done by the order of the mayor and aldermen. The statute which gave them authority to make the sewers did not pre- clude them from employing agents to supervise and direct the work." Hence it appears from this opinion that the substance of the thing which could not be delegated was the laying out of the sewer, and not the details involved in its construction, some of which must necessarily have embraced the negotiating of contracts. The third objection raised by the plaintiff to the legality of the lease is based upon the fact that one city council made the lease to take effect, in futuro, under another. But it must be observed that, while the personnel may liave been different, the city council under which the lease took effect was precisely the same tribunal under the charter and the ordinances EXERCISE OF POWERS 113 that executed the lease. The plaintiff, however, contends that the fact of an election between the execution of the lease and the be- ginning of its term, involving a possible change in the personnel of the new city council, made the attempt to execute a lease, to thus take effect, an invasion of the prerogatives of the new board; but we are unable to discover any substantial reason in support of this contention. While the personnel of a city government may change, the tribunal itself is a continuous body. As was said in Collins V. Holyoke, supra: "The membership of the defendant board is not the same as when the assessment in question was made ; but, while its members change from time to time, the board itself as a tribunal is continuously the same." See, also, Fairbanks V, Fitchburg, 132 Mass. 42. While one city government composed of one set of individuals might, upon a given question, do precisely the reverse of another city government, composed of a diff'erent set of individuals, yet what the individuals of different city govern- ments might do can in no way affect the right of the tribunal as a city government to act upon any measure properly before it. What the individuals may do as a matter of opinion is one thing, but what the tribunal, a perpetual body is empowered to do as a matter of authority, is quite another thing. It appears to us that the logic of the plaintiff's contention tends to limit a city council to action with respect to such matters only as are to go into effect under its own administration. Such limi- tation would segregate a municipal government from all other cor- porations and business institutions, in the methods employed for the transaction of business, and might, it seems to us, prove highly detrimental. A municipal government, represented by its city council, should be regarded as a business institution with reference to those transactions or matters permitted by the terms of its char- ter. When not limited to a prescribed method, it should be per- mitted to act with the same business foresight that is accorded to other business institutions. A corporation or individual dealing in the letting of property might find it of the highest importance to make a lease to-day to take effect months or even years hence. They might find it equally detrimental to be limited in their power to thus anticipate the future. This idea is so apparent as a business proposition as to become self-evident. We have seen that the city council itself was empowered to make the lease in question and could delegate authority to a com- mittee to negotiate its terms. Wc are therefore of the opinion that a lease thus legally executed is not void from the fact that it is made by one city council to take effect, in futuro, under an- other. Juflgment for the defendant. CooLEY Cases Mun.C. — 8 114 PROCEEDINGS AND ORDINANCES PROCEEDINGS AND ORDINANCES I. The Governing Body ^ 1. De; Facto Councii, ROCHE V. JONES. (Supreme Court of Appeals of Virginia, 1891. 87 Va. 484, 12 S. E. 965.) Fauntleroy, J.2 This is an appeal from a decree of the circuit court of Elizabeth City county, pronounced on the 7th day of February, 1890, in a chancery cause in which the appellants, W. W. Roche and others, (licensed liquor-dealers under the laws of the state,) are complainants, and I. h. Jones, sergeant of the town of Hampton, Va., and Jesse S. Jones, treasurer of said town, are de- fendants. The prayer of the bill was to restrain and perpetually enjoin the aforesaid defendants from collecting the license tax imposed by an ordinance of the council of the said town of Hamp- ton, passed 28th June, 1889. An injunction was awarded, according to the prayer of the bill on the 17th of July, 1889, by the judge of the corporation court of the city of Norfolk ; and on the 7th day of February, 1890, the circuit court of Elizabeth City county, by the decree appealed from, dissolved the said injunction, and dis- missed the bill of complainants. The validity of the tax is assailed because it is alleged that the fourteenth section of the act approved May 23, 1887, entitled "An act to incorporate the to\yn of Hampton," which reads as follows: "J. S. Darling and J. W. Richardson, from the First ward ; A. D. Wallace and James McMinamin, from the Second ward; and Luke B. Phillips and John W. Williams, from the Third ward, — are here- by declared and appointed councilmen of the said town, to be quali- fied as prescribed by law, and they shall constitute tlie council of said town until their successors are elected and qualified," — is in conflict with that portion of the twentieth section of the sixth article of the constitution of Virginia which provides that "all city, town, and village officers, whose election or appointment is not provided for by this constitution, shall be elected by the electors of such cities, towns, and villages, or of some division thereof, or ap- pointed by such authorities thereof as the general assembly shall designate." This assignment of error is not well taken. The sec- tion is merely enabling, and plainly intended to apply only to offi- 1 For discussion of principles, see Cooley, Mun. Corp. § 45. 2 Part of the opinion is omitted. THE GOVERNING BODY 115 cars to be chosen, under the constitution, after the municipal gov- ernment became lully and regularly established, and not to ol'ncers appointed by the act itself to perform requisite duties until a regu- lar election could be held. The Richmond Mayoralty Case, 19 Grat. (60 \'a.) 674. The legislature created the office, and it existed de jure; and the incumbents, named and appointed by the act itself to start and put into operation the organization of the town, were constitution- ally appointed, and, so far as the validity of their acts is concerned, they were clothed with the insignia and authority to exercise the powers and functions of their appointment. See Norton v. Shelby Co., 118 U. S. 411 117, 6 Sup. Ct. 1121, 30 L. Ed. 178, and cases cited; Leach v. People, 122 111. 420, 12 N. E. 726; Clark v. Town of Easton, 146 Mass. 43, 14 N, E. 795, It is contended that section 14 of the said act of incorporation is in conflict with section 1016 of the Code of 1887, which applies expressly and only to cities con- taining a population of 5,000 or more, and having a corporation or hustings court, and cannot apply to the town of Hampton; but, even if the contention were well taken, the conflict could not aftect the validity of the acts de facto of the council named by the char- ter. And we think the intention of the legislature is plain to pro- vide, by the fourth section of the charter, for the election of the regular and permanent officers of the town ; and by the fourteenth section, for the requisite officers until such election could be held. The fourth objection raised is that the tax was levied by less than a two-thirds vote of the council, and is therefore in violation of the requirement of section 1035 of the Code of 1887. The coun- cil is comi)osed of six members, four of whom constitute two-thirds. Five members w^ere present at the meeting which passed the tax ordinance, four of whom voted for, and one against, the ordinance. It is alleged that Councilman A. D. Wallace, who voted for the or- dinance, had, about two weeks before its passage, moved his resi- dence beyond the corporate limits of the town, and had thereby vacated his office of councilman, and that consequently his vote was a nullity. But this is a non sequitur. as Wallace had con- tinued to exercise his office as councilman, and t(. (liscliarL,'^c its functions, until 1st July, 1889, when his successor qualified. He was a de facto councilman, and his acts as such were valid and binding. Montcith v. Com., 15 Grat. (56 Va.) 172; Griffin's E.x'r v. Cunningham, 20 Grat. (61 Va.) 40; McCraw v. Williams. 3^ Grat. (74 Va.) 513; Blackw. Tax Titles, pp. 100, 103. * ♦ * Affirmed. IIG PROCEEDINGS AND ORDINANCES MAGNEAU V. CITY OF FREMONT. (Supreme Court of Nebraska, 1S90. 30 Neb. 843, 47 N. W. 280, 9 Ii. R. A. 786, 27 Am. St Rep. 436.) See post, p. 119, for a report of the case. II. Mode of Action' In re WILSON. (Supreme Court of Minnesota, 1884. 32 Minn. 145, 19 N. W. 723.) MiTCHELi., J.* Section 5, c. 4, of the charter of the city of Min- neapolis, provides: "The city council shall have full power and authority to make, ordain, publish, enforce, alter, amend, or repeal all such ordinances for the government and good order of the city, for the suppression of vice and intemperance, and for the preven- tion of crime, as it shall deem expedient ; and in and by the same to declare and impose penalties and punishments, and enforce the same against any person or persons who may violate the provisions of any ordinance passed and ordained by it ; and all such ordi- nances are hereby declared to be and to have the force of law, pro- vided that they be not repugnant to the laws of the United States, or of the state. And for these purposes the said city council shall have authority by such ordinances — First, to license and regulate, among others, all persons vending, dealing in, or disposing of spirituous, vinous, fermented, or malt liquors." The mode in which these powers are to be exercised is specified as follows in sections 8 and 9 of the same chapter: "The style of all ordinances shall be, 'The city council of the city of Minneapolis do ordain.' The subject of every ordinance shall be expressed in its title, and no ordinance shall embrace more than one subject. Section 9. All ordinances and resolutions of the city council shall be passed by an affirmative vote of a majority of all the members of the council by ayes and noes, which shall be entered on the rec- ords of the council. No ordinance shall be passed at the same meeting of the council at which it shall have been presented, ex- cept by unanimous consent of all the members present, which shall be noted in the record. When approved, they shall be recorded by the city clerk in books provided for that purpose ; and before they shall be in force they shall be published in the official paper of the city." 3 For discussion of principles, see Cooley, Mun. Corp. § 46. * Part of tbe opinion is omitted. MODE OF ACTION 117 Section 1 of chapter 3 provides that "all ordinances and resolu- tions shall, before they take effect, be presented to the mayor, and if he shall approve thereof he shall sign the same. If he returns it with objections, the council may pass it by a two-thirds vote; and if he retains it five days, it shall have the same force and effect as if approved by him." On the 28th of April, 1884, the city council passed "An ordinance to license and regulate all persons vending, dealing in, or disposing of spirituous, vinous, fermented, or malt liquors;" section 1 of which reads: "No person shall sell, vend, deal in, or dispose of any spirituous, vinous, fermented, or malt liquors, or beverages, for any use or purpose whatever, in or at any building or other place within the limits of the city of Minneapolis, without having ob- tained a license therefor in the manner herein provided." Section 2 reads: "No person shall be licensed to sell, vend, deal in, or dispose of any spirituous, vinous, fermented, or malt liquors or beverages, for any use or purpose whatever, in or at any building or other place within the limits of the city of Minneapolis, * * * who intends, if licensed, to carry on his business, or who will, when licensed, carry on his business, outside of those districts in said city which shall hereafter be designated and known as 'active patrol districts,' to be designated as hereinafter required." Section 3 reads: "Any person desiring a license to sell, vend, deal in, or dis- pose of any spirituous, vinous, fermented, or malt liquors or bev- erages in said city of Minneapolis, shall make an affidavit and file the same with the city clerk of said city, in which affidavit said person shall state fully and explicitly * * * whether or not said room or rooms, where he intends to and will carry on his busi- ness if licensed, is within those districts in said city which have been duly designated as 'active patrol districts' of said city." Sec- tion 9 reads : "The mayor of said city shall designate such portions of said city as he shall deem best, to be known and designated as 'active patrol districts,' and shall submit the same to the city council for its approval; and, when approved by said city council', the same shall be and become the districts of said city, which shall be constantly patrolled by the police force of said city, under the instructions of said mayor. Said active patrol districts may be changed at any time by said mayor, by the like approval of said city council." The other provisions of the ordinance need not be here cited. After its passage and publication, the mayor, in pur- suance of the provisions of section 9, designated certain portions of the city (embracing a district two or more miles in length, and of an average width of about half a mile, and including most of the business portion of the city) as "active patrol districts," and sub- mitted the same to the council, which approved the same by reso- lution. ♦ * * 118 PROCEEDINGS AND ORDINANCES We have no doubt whatever of the power of the city council to determine where, and within what portions of the city the business of selHng and dealing in intoxicating hquors may be carried on. This right is impHed and included in the power to regulate. And if they deem that the good order of the city requires that this traffic shall be excluded from the suburban and residence portions of the city, and confined to the more central and business portions, where it can be kept under more effectual police surveillance, their power to do so is, in our judgment, undoubted. • Under a grant of police power to regulate, the right of the municipal authorities to determine where and within what limits a certain kind of business may be conducted, has been often sustained. For example, the place where markets might be held ; where butchers' stalls or meat-shops may be kept; where hay or other produce shall be weighed; where auctions may be held; the limits within which certain kinds of animals shall not be kept; within which the busi- ness of tallow chandler shall not be carried on ; within which gun- powder shall not be stored; within which slaughter-houses shall not be kept; the distance from a church within which liquor shall not be sold. Such cases might be multiplied almost indefinitely. If, under the general police power to regulate, this can be done as to such kinds of business, on what principle Can it be claimed that similar regulations may not be adopted as to the sale of in- toxicating liquors, — a traffic which all civilized communities deem nec- essary to place under special police regulations and restraints? Of course such regulations must be reasonable, of which fact the courts must judge. But, in assuming the right to do so, courts will not look closely into mere matters of judgment, and set up their own judg- ment against that of the municipal authorities, when there is a reason- able ground for a difference of opinion. But this power to regulate is vested in the city council. It is a power which they cannot delegate to any person or officer. It is a legislative act, which they must per- form themselves, and they can only exercise it by ordinance, enacted in the manner prescribed in the charter. Of course, they may impose mere executive or ministerial duties, such as approving the bond, re- ceiving the license fee, and issuing the license, on certain officers, as they have done in the present case. These are mere executive and ministerial acts to be performed in the execution of the ordinance ; but they cannot delegate their legislative powers. The ordinance, in that respect, must be complete when it leaves the hands of the city council. The limits within which the sale of liquor should be confined is a matter which the council must determine for themselves. It calls for the exercise of legislative discretion. They can no more remit to the mayor the right to determine this than they can the question of the MEETINGS 119 amount of the license fee. But this is, in effect, what they have done in this case. The ordinance nowhere defines the Hmits of the "Hcense districts." It leaves this to be done by the mayor, under the name of "active patrol districts," which is but another name for license districts. The matter is somewhat obscured by calling them "active patrol districts." But when the ordinance is stripped of all disguises, the stubborn fact remains that it is the judgment and discretion of the mayor, and not of the council, which is to determine in what parts of the city this busi- ness may be carried on. The difficulty is not obviated by the fact that the action of the mayor is to be approved by the council. This may be done by a mere resolution, passed by a bare majority of a quorurn, at the same meeting at which it is introduced; whereas the council can only legislate on this subject by ordinance, passed in the manner prescribed by section 9, c. 4, of the charter already quoted. This ordinance carries with it the seeds of its own dissolution; for, under the last clause of section 9, the mayor might at any time, with the ap- proval of a bare majority of a quorum of the council, extend the license district so as to include the whole city. In legislating upon this question, it is, of course, eminently proper that the council should take into account what parts of the city can conveniently be patrolled by the police ; but, after all this, they must themselves exercise their legislative discretion in fixing the limits of the license district. * ' * * 6 III. Meetings MAGNEAU V. CITY OF FREMONT. (Supreme Court of Nebraska, 1890. 30 Neb. 843, 47 N. W. 280, 9 L. R. A. 7SG, 27 Am. St. Rep. 43G.) NoRVAL, J.'' This suit was brought in the district court of Dodge county to enjoin the collection of certain occupation taxes imposed upon various occupations within the city by ordinance No. 231, and to have said ordinance declared void. The district court found the issue in favor of the defendants, and dismissed the action. The plaintiffs appeal. The city of Fremont is a city of the second class having over 5,000 inhabitants. It is divided into four wards, and, under the act or charter which governs cities of that class, is entitled to eight councilmen, two from each ward. At the general B Writ f)f (•(•rtiuiiiri was (Jciiicil in tliis rase solely on the grouud that it was not tlie proper remerly. See In ir Wilson, post, p. 319. n For discussion of jdiiKlplcs, see C'oolcy. Mnn. Cor]). § 48. ' I'art of the opinion is omitted. 120 PROCEEDINGS AND ORDINANCES election, held in said city on the 1st day of April, 1890, E. N. Morse was elected councilman from the Second ward as the successor to J. J. Lowery, and D. Hein was elected from the Third ward as the successor to C. A. Peterson. At a session of the city council held on April 3, 1890, the votes cast at the last city election were can- vassed, and Morse and Hein were declared elected. This meeting was adjourned to April 4th, wdien the ordinance in question was intro- duced, and read the first time. An adjourned session was held on April 5th, when the ordinance was read a second time, and the meet- ing was adjourned to April 9th- On that date the council met, pur- suant to adjournment, when the ordinance was read a third time, and passed. There was present and participated at this session, besides the mayor, councilmen Biles, Esmay, Plambeck, Harmes, Wilcox, Pe- terson, and Lowery. On April 7th, prior to the passage of this or- dinance, the councilmen-elect Morse and Hein qualified. * * * It is conceded that all who participated at the meeting when the ordinance was adopted were legal members of the council except Peterson and Lowery, whose right to act is questioned on the ground that their successors had previously qualified on April 7th. The statute requires that tw'O-thirds of all the members of the council shall be necessary to constitute a quorum for the transaction of busi- ness. It is obvious that if Peterson and Lowery could not lawfully act wnth the council at that meeting, no quorum was present, and the ordinance is invalid. Section 12, art. 2, c. 14, Comp. St., pro- vides that in cities of the second class having more than 5,000 in- habitants there shall be elected, annually, in each ward, one council- man, who shall hold his office for the term of two years, and until his successor shall be elected and qualified. There being no statutory provision fixing a particular date when the term of office of a coun- cilman shall begin, it is believed that the provisions of said section 12 control, and that the term of such officer commences immediately after the person elected has qualified. While Morse and Hein had qualified, they had not, as yet, taken their seats in the council, or par- ticipated in the proceedings of that body. The names of Lowery and Peterson appeared upon the roll of members, and they were recognized as such by other members of the council, as well as by the mayor and city clerk. They took part in the proceedings of the coun- cil on April 9th without objection from any one, although Morse and Hein were, at the time, in the council chamber. We conclude, there- fore, that Morse and Hein were de jure officers, and that Lowery and Peterson were de facto members of the city council. The cases are numerous which hold that the acts of a de facto offi- cer, so for as they involve the interests of the public, or third persons, are as valid and binding as though he was an officer de jure. * * * In State v. Gray, 23 Neb. 365, 36 N. W. 577, it was held that "the acts of councilmen de facto, within the power of the statute, will be recognized and upheld." In Braidy v. Theritt, 17 Kan. 468, the MEETINGS 121 defendant exercised the duties of councilman of the city of Watena after his successor had been elected and qualified. It was held that Theritt was a de facto officer. * * * The following cases support the same doctrine: Norton v. Shelby Co., 118 U. S. 449, 6 Sup. Ct. 1121, 30 L. Ed. 178; Carli v. Rhener. 27 Minn. 292, 7 N. W. 139; Leach v. People, 122 111. 420, 12 N. E. 726; People v. Bangs, 24 111. 184; Trumbo v. People, 75 111. 561. It follows from the reason of these cases that the acts of Lowery and Peterson are valid, and that there was a quorum of the city council present at the time the ordinance was adopted. * * * It is also claimed that the city council had no authority to pass or- dinance 231 at the meeting at which it was adopted. Ordinance No. 3, of the city of Fremont, provides that the regular meetings of the council shall be held on the last Tuesday of each month. It is con- ceded that the ordinance under consideration was not acted upon at such a meeting, nor at any adjourned session thereof. It is pro- vided by ordinance No. 79 that the mayor and council shall meet on the Thursday following each city election, and canvass the re- turns of the votes cast at such election. A meeting was held April 3d, when the votes cast at the city election, held on April 1st, were canvassed. Prior to this meeting, a call was issued by the mayor for a meeting of the council on April 3d, to canvass the votes of the city election, and to transact any business that might lawfully come be- fore the council. At the meeting held on April 3d, the mayor and all the members of the council were present, except Archer. This meeting was adjourned to the following day, at which time, the mayor and all the councilmen being present, the ordinance was introduced, read the first time, and the meeting adjourned to April 5th. On that date, there were present the mayor and all the councilmen except Plambeck. The ordinance was then read a second time, and an ad- journment taken to April 9th. On the last-named date, all the mem- bers of the council being present, except Archer, the ordinance was read a third time, and passed. The meeting held on April 3d was for the special purpose of can- vassing the returns of the city election. Plad it been a regular meet- ing, then any cori)orate business could have been lawfully trans- acted at any adjourned session thereof. The statute authorizes the mayor or any two councilmen to call special meetings. Whether the call must specify the object of such a meeting, the statute is silent, and the decisions of the courts are conflicting ui)on that question. At any rate, the purpose and object of the call is to apprise the members of the proposed meetings so that they may attend. So it seems clear to us that, when all the members of the council and the mayor meet and act as a body, they may at such meeting, or at any adjourned session thereof, transact any business within the powers conferred by law, notwithstanding no written call for the meeting was made by the mayor or two councilmen, or in case one was made which failed 122 PROCEEDINGS AND ORDINANCES to specify the purpose of the meeting. At the session held on April 4th, at which the ordinance was introduced and read, the mayor and all the members of the council were present and acted. All the mem- bers were notified of the meeting at which the ordinance was read the second time by the adjournment of the previous meeting, when all were present, and all had notice of the meeting at which the ordi- nance was passed by the adjournment of the meeting held on April 5th except Plambeck, and he was present and participated at the meeting when the ordinance was finally passed. In view of these facts, we must hold that the council was in lawful session when each step was taken when passing this ordinance. * * * Affirmed. IV. Ordinances — Mode of Enactment' SWINDELL V. STATE ex rel. MAXEY. (Supreme Court of Indiana, 1895. 143 Ind. 153, 42 N. E. 528, 35 L. R. A. 50.) Mandamus, on the relation of James W. Maxey and another, against Joseph Swindell, mayor of the city of Plymouth, to compel respond- ent to recognize relators' claims to offices of councilmen. From a judgment for relators, respondent appeals. Jordan, J." The relators, James W. Maxey and William O'Keefe, instituted and prosecuted this action in the lower court, in the name of the state, to obtain a writ of mandate against the appel- lant, as the mayor of the city of Plymouth, Marshall county, Ind., to compel him to recognize them, each, as members of the common council of the city, and permit them to each exercise the duties of the office of councilman. The application for the writ substantially sets forth that on April 25, 1873, Plymouth was incorporated as a city, under and in pursuance of the general laws of the state of In- diana applicable to the incorporation of cities; that the city upon its incorporation was divided into three wards, and that this division continued until the 27th day of August, 1894, when the common coun- cil thereof, being then composed of six councilmen, at a regular meet- ing, by an ordinance duly passed and adopted at said meeting, divided the city into four wards, thereby creating an additional one, which was designated as the "Fourth Ward"; that immediately after cre- ating this ward said council at the said meeting did appoint the re- lators as councilmen therefrom, to fill the vacancies existing in said council by reason of the creation of the additional ward. The due qualification of the relators as members of the council is alleged, and 8 For discussion of principles, see Cooley, Mun. Corp. §§ 49, 50. 9 Part of the opinion is omitted. ORDINANCES — MODE OF ENACTMENT 123 it is charged that the mayor, as the presiding officer of the common council, has refused to recognize them, or either of them, and refuses to permit them, or either of them, to exercise their rights as such councilmen, and that he had directed the clerk not to call the names of said relators when present upon occasions when it was necessary to constitute a quorum, etc. * * * The two cardinal propositions involved for a decision in this ap- peal are : First. Was the common council of the city of Plymouth au- thorized by law to adopt the ordinance whereby the additional ward was created, from which the relators were appointed as councilmen? Second. If the council was so empowered, was the ordinance in ques- tion legally and validly adopted? We will consider and determine these two questions in their order. * * * The second proposition with which we are confronted is vital in its bearing upon the action of the council in passing the ordinance in controversy. The validity of the ordinance is essential or funda- mental to the claims made by the relators. If for any reason it is invalid, the rights of the latter are unfounded, and the appellant would be justified in his refusal to recognize them as members of the council, and hence they must necessarily fail in the prosecution of this action. On May 26, 1873, the common council of the appel- lant's city duly passed and adopted an ordinance embracing a series of rules and regulations for the government of the common council in the transacting of its business, and as to the mode of proceeding in the enactment of ordinances. Some of these are merely rules of par- liamentary law. Section 21 of this ordinance is as follows: "All ordinances shall be read three times before being passed, and no ordinance shall pass or be read the third time in the same meeting [that] it was introduced, provided that the council may suspend the rule by a two-thirds vote, and put an ordinance upon its passage by one reading at the time it is read." There is no question but what this rule was in full force and effect at the time of the intro- duction of the ordinance under consideration, and there is evidence showing that it had generally been recognized and followed by the council in the ado])tion of ordinances. It is the rule set up and re- lied upon by appellant in the second paragraph of his answer, in which it was, in substance, alleged that tlie ordinance u])on which the relators based their claim and right to be recognized and to act as councilmen had been passed in violation thereof. During the trial the court permitted the ajjpellant to introduce this rule or ordinance in cviflcnce, but subsequently, before the cause was finally submitted to the jury, u[)on the motion of appellees, the court struck out and withdrew this evidence, over appellant's objections and exceptions; and this action of tiie court was assigned as one of the reasons in the motion for a new trial. The trial court seemingly justified its action in eliminating this evidence upon the grounfl, as insisted by the relators, that this rule had been repealed, as the re- 124 PROCEEDINGS AND ORDINANCES suit of the motion made by Councilman Tibbetts, and carried in the manner as we have heretofore stated, and that the same was not in force when the ordinance in question was passed. The verbal mo- tion made by this councilman, as recorded by the clerk, by which it was sought to effectually repeal the rules ordained for the govern- ment of the council, was, to say the least, somewhat indefinite. When recorded it read, "Tliat the rules heretofore governing the proceed- ings of council as printed in the ordinance book be and the same are hereby annulled and repealed!' (The italics are our own.) Ordinances of cities are held to be in the nature and character of local laws adopted by a body vested with legislative authority, and coupled with the power to enforce obedience to its enactments. The power with which common councils of cities are invested to enact ordinances and by-laws implies the power to amend, change, or re- peal them, provided that vested rights are not thereby impaired. But certainly it cannot be successfully asserted that the law will yield its sanction to the mode employed to repeal the one by which the rule in controversy was ordained and established. If the procedure by which the power of repeal was attempted to be exercised upon the occasion in question could be sustained, then all that would be nec- essary to accomplish the repeal of all existing ordinances of a city would be the adoption, at any regular meeting, by the common coun- cil, of a mere verbal and general motion to that effect, without any reference whatever to the title, number, or date of passage of the ordinance or ordinances intended to be repealed. In the case of Bills v. City of Goshen, 117 Ind. 221, 20 N. E. 115, 3 L. R. A. 261, it was held by this court that a defect in an ordinance could not be cured or amended by means of a motion subsequently made by a member of the council, and put to a vote and carried. In Horr & B. Mun. Pol. Ord. § 61, it is said: "Express repeals can only be effected by an act of equal grade with that by which the or- dinance was originally put in operation. No part or feature of an ex- isting ordinance can be changed by a mere resolution of the council, even though signed by the mayor and recorded. A new ordinance must be passed." See, also, sections 63, 64, same authority. In Jones v. McAlpine, 64 Ala. 511, an attempt was made, by a motion, to raise or change the license fee in a certain ordinance by the mayor and board of aldermen of the city of Talladega. This method was held to be ineffectual in its results. The court said : "Until an ordinance had been adopted by the mayor and aldermen changing the ordinance of May 9, 1887, * * * that ordinance remained in full force, though there was an intention to change it, and a declaration of the will of the board that it should be changed." Considered, then, in the light of the authorities which we have cited, and the manifest reason which necessarily underlies and sustains the rule which they assert, the conclusion is irresistibly reached that the attempt to repeal the ordinance which embraced the series of rules and ORDINANCES — MODE OF ENACTMENT 125 regulations in question, by the action of the council in adopting the motion in controversy, was ineffectual, and did not result in the repeal or abrogation of the rule under consideration. Having reached this conclusion, the inquiry arises as to the effect of the operation of this rule upon the ordinance upon which the relators fpund their claims, and which was passed and adopted, as it appears, by the coun- cil, in violation of its provisions. It is said in Dill. Mun. Corp. § 2888: "After a meeting of the council is duly convened, the mode of proceeding is regulated by the charter or constituent act, or by ordinances passed for that purpose, and by the general rules, so far as in their nature are applicable, which govern other deliberative and legislative bodies." In section 47, Horr & B. Mun. Pol. Ord., it is said : "The usual statutory direc- tion is that every ordinance shall be read at three different meetings before its final enactment. The direction is necessary, as a safeguard against too hasty legislation, and its observance mandatory. If neg- lected, the ordinance is ab initio void." In Beach, Pub. Corp. § 494, il is said: "The mode of enacting the ordinance is generally pre- scribed in the charter or an ordinance, and their requirements should be strictly complied with. So, where the charter prescribes that no by-law shall be passed unless introduced at a previous meeting, the provision has been held to be mandatory, and a by-law passed in vio- lation thereof is void." In the case of Horner v. Rowley, 51 Iowa, 620, 2 N. W. 436, the question arose as to the validity of a town ordinance authorizing the issuance of a license for the sale of wine and beer. It appeared that the council that adopted the ordinance involved in that case consisted of seven members. The statute of the state provided "that ordinances of a general or permanent nature shall be fully and distinctly read on three different days, unless three-fourths of the council shall dis- pense with the rules." Upon a motion to dispense with the reading required under the rule, four members voted in the affirmative, and none in the negative. The mayor decided the motion carried, and the ordinance was adopted. The court said: "As four, the number who voted to suspend the rule and pass the ordinance, is not three- fourths of seven, it follows that the ordinance was not legally en- acted. It was therefore void, and no valid act could be done under its provisions." The statutes of Ohio relating to cities require tli.it ordinances of a permanent nature shall be read on three different days, unless three-fourths of the nicml)crs of the council dispense with the rule. In the aiJpcal of Campbell v. City of Cincinnati, 49 Ohio St. 463, 31 N. E. 606, it was held that this provision was mandatory, and that, in passing several ordinances "in a lump," it was requisite to suspend the rule as to each, in order to render its final adoption legal and valid. ♦ * * The rule, therefore, as stated in numerous adjuflged cases, is that the mode of procedure to be followed in the enactment of ordinances, 126 PROCEEDINGS AND ORDINANCES as prescribed by statute, must be strictly observed. Such statutory powers constitute conditions precedent, and, unless the ordinance is adopted in compliance with the conditions and directions thus pre- scribed, it will have no force. 17 Am. & Eng. Enc. Law, 238, and cases cited. In Clark v. Crane, 5 Mich. 151, 71 Am. Dec. 776, the supreme court laid down the rule that 'what the law requires to be done for the protection of the taxpayer is mandatory, and cannot be regarded as merely directory.' The requirement that ordinances * * * shall be fully and distinctly read upon three different days is designed as a safeguard against rash and inconsiderate legislation ; and, being in a great degree essential to the protection of the rights of property, it should be deemed a mandatory measure, intended as a security for the citizen." The case of State v. Priester, 43 Minn. 373, 45 N. W. 712, asserts the same rule, and the reasons therefor. This court, in the appeal of the City of Logansport v. Crockett, 64 Ind. 319, held that section 3534, Rev. St. 1894 (section 3099, Rev. St. 1881), which requires that on the adoption or passage of any by-laws, ordinances, or resolutions, the yeas and nays shall be taken and entered on the record, was mandatory, and that a noncompliance with this provision rendered the adoption of the ordinance nugatory. See Dill. Mun. Corp. § 291. It is not necessary that we should further extend the consideration of the question, or refer to additional authorities to show that, when the legally prescribed method of procedure in the enactment of an ordinance is neglected or violated, the latter is thereby rendered invalid and of no force or effect. This doctrine or principle seems to be firmly settled by many leading authorities and decisions. The inquiry then is : Is the same principle applicable when the procedure is one prescribed by an ordinance of the common council enacted under the exercise of the power granted by the legislature? There is no statute in this state that embraces or contains the provisions or requirements in regard to the passage of an ordinance by the common council that are contained in section 21 of the ordinance in question. This right to regulate such proceedings in this particular respect seems to have been committed by the legislature to the common council. Section 3533, Rev. St. 1894 (section 3098, Rev. St. 1881), among other things, provides that "the common council may by ordinance pre- scribe such rules and regulations, in addition to those herein con- tained, for the qualification and official conduct of all city officers, as they may deem for the public good, and which shall not be incon- sistent with the provisions of this act." By section 3616, Rev. St. 1894 (section 3155, Rev. St. 1881), it is further provided, in addi- tion to the powers expressly granted, that the common council shall have power to make other by-laws and ordinances not inconsistent with the laws of the state, and necessary to carry out the objects of the corporation, etc. By these provisions, plenary powers are given to the council to pass and adopt ordinances prescribing rules OEDINANCES — MODE OF ENACTMENT 127 I and regulations, not inconsistent with law for its government and control, when duly convened and acting ofificially, in regard to its pro- ceedings upon the passage of an ordinance or otherwise. We have seen, by some of the leading authorities which we have herein cited, that when the mode of proceeding upon the part of the council in the adoption of an ordinance is regulated either by the char- ter, or an ordinance enacted thereunder, this prescribed mode must be strictly followed. Ordinances of a city, duly enacted, are in the nature of laws; being the decree or will of the common council, which body is vested with legislative authority. Public policy de- mands and authority sanctions the delegation of various powers of local legislation to this municipal body. The ordinances enacted in the exercise of these powers have, within the corporate limits of the city, the force of laws. They are held by the courts to be, within these limits, as binding as the laws of the state and general govern- ment, and are enforced in a similar manner, and under like rules of construction. When an ordinance is duly and legally passed, under the warrant of the legislature, it is in force, by the authority of the state. Horr & B. Mun. Pol. Ord. § 2 ; Beach, Pub. Corp. §§ 482, 486. A by-law or ordinance which a municipal corporation is authorized to adopt is as binding on its members and officers, and all other per- sons within its limits, as a statute of the legislature. Heland v. City of Lowell, 3 Allen (Mass.) 407, 81 Am. Dec. 670; Pennsylvania Co. V. Stegemeier, 118 Ind. 305, 20 N. E. 843, 10 Am. St. Rep. 136, and authorities cited; Tied. ]\Iun. Corp. § 153; Dill. Mun. Corp. §§ 307, 308. In :\Iilne v. Davidson, 5 Mart. N. S. (La.) 586, 16 Am. Dec. 189, a contract entered into in contravention of an ordinance of the city of New Orleans was held to be void. The court said : "The or- dinances of a corporation, while acting within the powers conferred upon them by the legislature, have as binding an effect on the par- ticular members of that corporation as the acts of the general as- sembly have on the citizens throughout the state, and it is as nnich a breach of duty to evade or violate the one as it would be to evade or violate the other. Tlic moral and legal obligation to obey them is the same, and the consequences of nonobedience ought to be the same." These many authorities, which substantially enunciate and sustain the proposition that a municipal ordinance is a local law or statute, upon which rests both the moral and legal obligation to obey of all persons subject thereto, and that the results of a noncompliance with the mandatory or prohibitory provisions thereof must, in reason, be the same, in effect, as follow the disobedience or disregard of an act of the legislature of like import, warrant the conclusion and holding that when the charter law of a city docs not regulate the mode of procedure to be observed upon the adoption of an ordinance by the council, but has committed the authority or power so to do to that body, which, in pursuance thereof, has prescribed by ordinance an 12S PROCEEDINGS AND ORDINANCES essential and salutary rule, mandatory and prohibitory in Its provi- sions, as is the one under consideration, the council must yield to it their obedience, and, in the enactment of an ordinance, must be con- trolled thereby, unless suspended in the manner or by the vote pro- vided, and that the consequences of refusing to substantially comply with its provisions, or a violation of its inhibition, must, in reason, be the same as the noncompliance with or a violation of a require- ment prescribed by the statute. The section of the ordinance in ques- tion prescribed, substantially, that "all ordinances shall be read three times before being passed. No ordinance shall pass or be read the third time at the same meeting in which it was introduced." The word "all" may mean "every," and is to be construed in this connec- tion. Bloom V. Xenia, 32 Ohio St. 461. We may therefore read the rule thus: "Every ordinance shall be read," etc. The first clause is mandatory, and the second prohibitory. Such a rule prescribed for the government of legislative bodies is recognized by the courts as a salutary one. It is a check upon what sometimes might prove to be ill-advised, prematurely considered, or pernicious legislation. If a common council were permitted to will- fully ignore, utterly disobey, and violate an ordained rule of this character, injurious results to the inhabitants of the corporation might, and possibly would, result. It is therefore the duty of courts to re- quire a strict compliance with mandatory provisions of the law, of the character and purpose of the one in question. A two-thirds vote of the council was required, to suspend the rule. This, in reason at least, must be construed and held to mean not less than two-thirds of all the members present at any meeting of the council. Atkins v. Phillips, 26 Fla. 281, 8 South. 429, 10 L. R. A. 158. It appears from the record that the acts of the council antecedent to and including the final passage of the ordinance creating the ward in controversy only received the votes of, and were sanctioned by, three of the six councilmen present at the meeting. Three cannot be held to be two- thirds of six. Hence, in no manner, or upon any view of the case, was a suspension of the rule effected. Viewed then, in the light of the reason and logic of the authorities herein cited, we are constrained to hold and adjudge that, the ordi- nance having been passed in noncompliance with and in violation of the ordained rule in controversy, it is invalid and inoperative, and that the action of the council based thereon, in appointing the re- lators, is likewise void, and consequently the latter cannot suceessfuUy maintain this action. City of Logansport v. hegg, 20 Ind. 315. * * * Reversed. ESSENTIALS OF VALID ORDINANCE 129 V. Essentials of Valid Ordinance ^^ 1. Must Not Be Oppressive CITY OF CHICAGO v. GUNNING SYSTEM. (Supreme Court of Illinois, 1905. 214 III. 628, 73 N. E. 1035, 70 L. R. A. 230.) Bill by the Gunning System against the city of Chicago, by which it is sought to have declared void two ordinances of the city of Chi- cago relating to billboards and for an injunction. From a decree for complainant, which was affirmed by the Appellate Court (114 111. App. Z77), defendant appeals. Wilkin, J.^^ * * * It is claimed by appellee that under clause 17 of section 1, art. 5, of the city and village act (Hurd's Rev. St. 1899, c. 24), the city can regulate and prevent the use of signs on the streets and public places of the city ; that this is a specific pro- vision relating to signs ; and that the power thus expressly granted cannot be added to by the general language found elsewhere in the act, and that there is no authority conferred by statute upon munici- palities to regulate billboards erected upon private property. We can- not agree with this contention, but are of the opinion that there is ample power, under paragraphs 66 and 75 of section 1, art. 5, of the city and village act (Hurd's Rev. St. 1899, p. 277, c. 24), to authorize municipalities to pass reasonable ordinances covering said subject. Paragraph 66 confers upon cities power "to regulate the police of the city or village and pass and enforce all necessary police ordinances." * * * Paragraph 75, supra, gives cities and villages power "to declare what shall be a nuisance, and to abate the same, and to impose fines upon parties who may create, continue or suffer nuisances to exist." * ♦ * \Vc think it clear that cither under paragraph 66 or 7^, supra, full power and authority are conferred upon cities, towns, and villages to regulate the construction and use of billl)oards within their corporate limits, provided the regulation is not unreason- able. Moreover, paragraph 78 of section 1, art. 5, confers upon cities and villages the right "to do all acts, make alT regulations which may be necessary or expedient for the promotion of health or the sup- pression of disease." No argument need be advanced that the struc- tures described in the bill before us may become a menace to the safe- ty of the public, and hence the subject of control and regulation. Tiicy may be erected in such a maimer as to be dangerous to the piil)]ir by falling or being blown down, or constructed of such materials and "> For fliscnsslon of |trliiri[»lp.s, see T'oolcy, Miin. T'orj). § 51. 11 I';irl of tin- opinion is oiiiittcMl iind tlu' slatuiiUMif of iMf.ts is rewritten. (.'OOLEY CA.SES MUN.C. — 9 130 PROCEEDINGS AND ORDINANCES dimensions as to be dangerous, or placed upon buildings or other structures in such a manner as to endanger the life and limb of the citizen, or erected within the fire limits in such proximity to buildings as to increase the danger of loss by fire, or so as to obstruct the view of railroad crossings, and thus endanger life by accident, or have printed or displayed upon them obscene characters tending to de- moralize and injure the public morals. If boards are erected in viola- tion of any of these public rights or interests, and of others which might be mentioned, there is ample power within the statute to regu- late them, provided such regulations are reasonably necessary for the protection of the public health, morals, or safety. Nor will the mere fact that such structures are placed upon private property, and not on the public streets, protect those owning or using them against such reasonable regulations. The police power invades individual rights and property whenever private individuals, by the use of their private rights or private property, injure the public in any of the above-men- tioned ways. The one essential and universal limitation upon the ex- ercise of the police power is, however, that the regulation shall be reasonably necessary and reasonably exercised. The question therefore remains to be considered whether the mu- nicipal authorities have in this case reasonably exercised the power vested in them ; in other words, whether the ordinance of June 29, 1900 (the only one here in question), is reasonable. The first four sections of the ordinance relate to signs and billboards to be thereafter erected. Section 1 provides that they shall be constructed of sheet or galvanized iron, or some equally noncombustible material, shall not exceed 100 square feet in area, and shall not be located nearer than 25 feet back of the front line of the lot. Section 2 provides that they shall not exceed 10 feet in height above the level of the adjoining streets, and the base shall be at least 3 feet above the level of the street, and in case the grade of adjoining streets has not been estab- lished they shall not exceed 10 feet above the surface of the ground. Section 3 provides that one board shall not be erected within five feet of any other board, and that each shall have independent stipports. All of these provisions are general in their terms, and apply alike to boards erected in every part of the city. In a great city like Chicago the court will take judicial notice that billboards are of various kinds, generally made out of a variety of materials, and erected in many different localities; some in the thick- ly settled and business districts, where the erection of wooden build- ings may properly be prohibited, or in the vicinity of electric wires, where more stringent regulations are reasonably necessary to protect the public safety ; or they may be in the remote and more thinly set- tled territory of the city, where such stringent precautions are not necessary, while others may be on vacant tracts of land far removed from other structures of every kind. It must be apparent to all rea- sonable minds that provisions which are necessary in one of such ESSENTIALS OF VALID ORDINANCE 131 cases would be wholly unnecessary and unreasonable in the others, and that a provision might be a reasonable police regulation in the one case and in one locality which would be wholly unreasonable un- der other circumstances in another locality. This ordinance is, how- ever, without qualification or limitation, applicable to signs and bill- boards alike in all portions of the great city of Chicago ; applicable alike to every portion of its extended territory. We do not hold that this ordinance is so unreasonable as to be void if it were limited to particular districts of the city. Nor do we question the doctrine an- nounced in City of Mt. Carmel v. Shaw, 155 111. Z7 , 39 N. E. 584, 27 L. R. A. 580, 46 Am. St. Rep. 311, and other cases, holding that, "where the municipal authorities are acting within their well-recog- nized powers, or are exercising a discretionary power, a court of equity has no jurisdiction to interfere unless the power or discretion is being manifestly abused to the oppression of the citizen." Where, however, as here, the attempt is to prohibit the owner of a lot in a remote, sparsely settled part of the city, or his lessee, from erecting a sign or billboard thereon except of required material — "sheet or galvanized iron," etc. — we think it does beconie unreasonable and oppressive. Section 4 provides that no sign or billboard shall be erected upon any boulevard or pleasure drive, or in any street where three-fourths of the buildings in such street are devoted to residence purposes, with- out the consent, in writing, of at least three-fourths of the residents and property owners on both sides of the street in the block where it is desired to erect such board. There is no evidence in the record upon which to base the reasonableness of this provision. It seems to be an arbitrary restriction on the part of the city, depriving an in- dividual property owner of the use of his property as he may choose, without any showing that such use would be injurious to others in the same vicinity. On the evidence before us that section must be held unreasonable and void. Section 5 provides tliat all signs and billboards erected before the passage of the ordinance which shall exceed 100 square feet in area or are of a greater height than 10 feet above the surface of the ground shall pay an annual license of 50 cents per square foot, and in default of such payment shall be torn down. The evidence shows that under this section appellee would be required to pay to the city $210,aX) per year, while its gross income is but $120,000 per year. All of these signs and billboards upcMi which this license would have to be paid were erected by api)ellee under the ordinances of the city as they existed at the time they were built, and the city, in some in- stances, received a license fee for the privilege of erecting the same. This provision of the ordinance i^s not only unreasonable in its terms, but is prohibitive of appellee's business, and, if enforced, appellee would be required to pay more than one and one-half times the amount of its gross income, or have its property destroyed. An ordi- 132 PROCEEDINGS AND ORDINANCES nance which is unreasonable, unjust, and oppressive will be held by the courts to be void. Hawes v. City of Chicago, 158 111. 653, 42 N. E. Z7Z, 30 L. R. A. 225. The purpose of sections 4 and 5 seems to be mainly sentimental, and to prevent sights which may be offensive to the aesthetic sensibili- ties of certain individuals residing in or passing through the vicinity of the billboards. The extreme restrictions placed on the erection and maintenance of such boards, and the license fee placed thereon, in- dicate that these sections were intended to be prohibitive, rather than regulative, and are, in our judgment, unreasonable. Our conclusion therefore is that the decree of the superior court was right, and properly affirmed by the Appellate Court, not for want of power in the city council of the city of Chicago to pass an ordinance reasonably regulating the erection and maintenance of billboards, but because, under the allegations of the bill and the proofs made by com- plainant below, the ordinance here in question is unreasonable. De- cree affirmed. 2. Must Not Contravene A Common Right STATE V. RAY. (Supreme Court of North CaroUna, 1902. 131 N. C. 814, 42 S. E. 960, 60 L. R. A. 634, 92 Am. St. Rep. 795.) J. D. Ray was convicted of violating an ordinance, and appeals. FuRCHKS, C. J. The defendant is the owner of a dry goods and grocery store (not of liquors) in the town of Scotland Neck, Halifax county. Scotland Neck is an incorporated town, and on the 4th of July, 1902, the commissioners of said town passed this ordinance : "It shall be unlawful for barrooms, groceries, dry goods stores and other places where merchandise is bought and sold (except drug stores for the sale of drugs and medicines only) to keep open later than 7 :30 o'clock p. m. except Saturdays. Any one violating this ordinance shall be fined five dollars for each and every violation." The defendant admits that he is the owner of a dry goods and grocery store in the town of Scotland Neck, and that he has kept it open later than 7:30 p. m. since the 7th day of July, 1902, the date at which said ordinance was to go into effect, but pleads "Not guilty," and a special verdict was returned, finding the facts as above. It is admitted that the charter of said town gives no special authority for the passage of such an ordinance, and that the commissioners had no authority for the passage of said ordinance, except the general powers incident to municipal corporations. This presents squarely the question of corporate power to pass and enforce such an ordinance ESSENTIALS OF VALID ORDINANCE 133 without any legislative authority to do so, except the fact that it is a chartered municipality. It is therefore not necessary that we should discuss the power of the legislature to pass such an act, or to au- thorize a municipality to pass such an ordinance, and we do not enter into the consideration of that matter. It must be admitted that the enforcement of this ordinance would be to deprive the defendant of his natural right, — would be to inter- fere with the free use and enjoyment of his property, used in such a way as not to interfere with the rights of others. It is not shown, nor is it suggested, that defendant's keeping his store open after 7 :30 in- terfered with the rights of any one else. It was said that the other merchants in Scotland Neck were willing to close their stores at 7 :30, but the defendant was not, and the ordinance was passed to compel him to do so, for the reason that if he kept open the others would be compelled to do so, or to give the defendant the benefit of the trade of the town after that time. But did this give the commissioners the right to close the defendant's store? It would seem that no legislative power exists, under our form of government and our ideas of personal liberty, as to allow such inter- ference with one's rights of ownership and dominion over his own property, except such interference be exercised for the protection and benefit of the public. \\'hen such interference is authorized, it is un- der the doctrine of eminent domain, or what is known as the "police power of the government." The attempted exercise of the power in this instance is clearly not under the doctrine of eminent domain, but it is said to be under the police power of the government. If the state could exercise such power (and we do not say it could), can a munici- pal corporation do so without express authority from the state? The general rule is that a municipal corporation can only exercise such powers as are expressly given in its charter, or such as are necessarily implied by those expressly given. This doctrine is well expressed by- 1 Dill. Mun. Corp. § 89, which is copied by Justice Avery in State v. Webber, 107 N. C. 962, 12 S. E. 598, 22 Am. St. Rep. 920, and is approved and adopted by this court in thai case: "It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others : First, those granted in express words ; second, those necessarily or fairly implied ; third, those essential to the declared objects and jnirposes of the cor- poration, — not simj)ly convenient, but indispensable. Any fair, rea- sonable doubt concerning the exercise is resolved by the courts against the corporation, and the jiower is denied. The same doctrine is probably more pointedly staled, as applicable to the case now under consideration, in vStale v. Thomas, 118 N. C. 1221, 24 S. E. 535, as follows: "An ordinance, says Dillon (1 Mun. Corp. § 325), cannot legally be made, which contravenes a common right, unless the power to do so be plainly conferred by a valid and competent legislative grant; and, in cases relating to such rights, au- 134 PROCEEDINGS AND ORDINANCES thority to regulate, conferred upon towns of limited powers, has been held not necessarily to include the power to prohibit. If the general power to pass by-laws, intended for local government merely, carries with it, by implication, the authority to restrict the use of private prop- erty by prescribing the hours when a person shall be permitted to occupy his own house, then cities and towns need nothing more than the enactment of a law creating them, with the incidental grant em- bodied in section 3799 of the Code, to give them equal authority with the legislature itself to restrict and regulate the rights of personal liberty and private property within the limits of the municipality. No such latitudinarian construction was intended by the legislature to be given to the statute, and its attempted exercise was therefore un- lawful." It seems to us that these authorities settle the question, and plainly show that this ordiiiance was unlawful and cannot be enforced. It is said that towns are constantly exercising such power over bar- rooms where liquors are sold. This power, so far as our investigation goes, is expressly given in the charters. But if there is any case where it is not, it must be understood that it stands on a very different foot- ing to the sale of dry goods and family groceries. Liquor itself is regarded as an evil, — an enemy of civilization and of good govern- ment. Bailey v. City of Raleigh, 130 N. C. 209, 41 S. E. 281, 58 L. R. A. 178; State v. Barringer, 110 N. C. 525, 14 S. E. 781. Its sale without a license is condemned and prohibited by law, and the regu- lations closing such shops might well be put upon the implied power, as being for the public good. But however that may be, that is not the question before the court, and what has been said to the sale of liquors has only been said to meet an argument of the state. It is also said that the state of California has exercised such power without express legislation, and that the supreme court of the United States affirmed the judgment of the California court. But when those rases are examined, it will be found that they were cases where the business of ironing was carried on all night in a thickly settled portion of the city of San Francisco, consisting of old wooden buildings near the Sound, where the wind usually blew hard, which made it very dangerous to carry on such work at late hours of the night, on account of fire. And the opinions rest upon the ground that it was for the public good — the protection of the public from the danger of fire — that the city was allowed to prevent such persons from carrying on such work at such late hours of the night. But the supreme court of the United States only affirmed the ruling of the state court, which is the rule of that court where there is no federal question involved. So it amounts to no more than a decision of the supreme court of Cali- fornia against the repeated decisions of our own supreme court. And were we to admit that the distinction does not exist between the Cali- fornia case and this case, which we have pointed out, the question then is, shall we adhere to our own decisions, when we are not able to see any error in them, or shall be adopt the opinion of the court of ESSENTIALS OF VALID ORDINANCE 135 California? We prefer to follow our own decisions, and are of the opinion that the corporate authorities of Scotland Neck were not au- thorized to pass the ordinance under consideration, and it is void. There is error, and under the special verdict the defendant was en- titled to an acquittal and discharge. The judgment of the court below is reversed.^* 3. Must Not Bt Unreasonable STATE V. BERING. In re GARRABAD. (Supreme Court of Wisconsin, 1893. 84 Wis. 585, 54 N. W. 1104, 19 L. R. A. 858, 36 Am. St. Rep. 948.) This is a proceeding by certiorari to review the decision of C. L. Bering, court commissioner, in the matter of his refusal to discharge the petitioner, Joseph Garrabad, from custody, and remanding him to the imprisonment of which he complains. It appears from the return of the sheriff to the writ of habeas corpus issued by the com- missioner that on the 27th day of February, 1893, the petitioner was placed in his custody, and was held therein, under and by virtue of an execution or so-called "commitment," reciting that the city of Portage had recovered a judgment before said justice against the petitioner for the sum of $5, together with $13.85 costs of suit, for the violation of an ordinance of said city. The ordinance in question provides that "it shall be unlawful for any person or persons, society, association, or organization, under whatsoever name, to march or parade over or upon" certain streets (therein named) in the city of Portage, "shouting, singing, or beating drums or tambourines, or play- ing upon any other musical instrument or instruments, for the pur- pose of advertising or attracting the attention of the public, or to the disturbance of the j)ublic peace or quiet, without first having obtained a permission to so march or parade, signed by the mayor of said city : * * * Provided, that this section shall not apply to funerals, fire companies, nor regularly organized companies of the state militia: and provided, further, that permission to march or parade shall at no time be refused to any political party having a regular stale or- ganization." The petitioner demurred to the return, and the commis- .<^ioner overruled the denuirrcr, and ordered that he be remanded to the custody of the sheriff, to be confined in ilie countyjail of said county, according to tiic terms of said execution.'^ 12TI10 (lIsscntinK opinion of ri!irl<, .T., Ih oniiltod. J^Tlic stjitcnif-nt nf f.-icfs Is rfwriltcn. 136 PROCEEDINGS AND ORDINANCES PiNNElY, J. The city charter of the city of Portage (Laws 1882, c. 132, § 31) confers upon the common council of the city power to pass ordinances and by-laws on certain subjects, under and by virtue of the delegation of the police powers of the state to the common council and city officers for the government of the city, and the pres- ervation of order and public safety. In respect to such ordinances or by-laws it has long been the established doctrine that they must be reasonable, not inconsistent with the charter nor with any statute, nor with the general principles of the common law of the land, par- ticularly those having relation to the liberty of the subject or the rights of private property. Dill. Mun. Corp. § 319, and cases cited in notes. The particular objections urged to the validity of the ordinance in question fall within the scope of the fourteenth amendment to the constitution of the United States, which provides that "no state shall make or enforce any law which shall abridge the privileges or im- munities of citizens of the United States, nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." These provisions apply equally to all persons within the territorial jurisdiction of the United States, without regard to any differences of color or nationality ; and the equal protection of the laws is a pledge, it is held, "of the protection of equal laws." Yick Wo v. Hopkins, 118 U. S. 369, 6 Sup. Ct. 1064, 30 L. Ed. 220. It is objected that the ordinance is void on its face, by reason of its operating unequally and creating an unjust and illegal discrimination, not only (1) by the express terms of the ordinance itself, but (2) it is so framed as to punish the petitioner for what is permitted to oth- ers as lawful, without any distinction of circumstances, whereby an unjust and illegal discrimination occurs in its execution, and which, though not made by the ordinance in express terms, is made possible by it; (3) in that it vests in the mayor, or other officers of the city named in it, power to arbitrarily deny persons and other societies or organizations the right secured by it to others to march and pa- rade on the streets named. The general subject and scope of the ordinance is marching or parading by "any person or persons, society, association, or organization" over the streets named, "shouting, sing- ing, or beating drums or tambourines, or playing upon any musical instrument or instruments, for the purpose of advertising or attract- ing the attention of the public, or to the disturbance of the public peace or quiet," without having obtained permission as prescribed in the ordinance. It provides, among other things, that the ordinance shall not apply to fire companies, nor to regularly organized com- panies of the state militia, and that permission to march or parade shall at no time be refused to any political party having a regular state organization. The permission, it will be seen, is required ab- solutely to be granted to political parties having a regular state or- ganization, so they are practically excepted out of the ordinance. ESSENTIALS OF VALID ORDINANCE 137 Whether permission shall be granted to any other society, civic, reli- gious, or otherwise, depends, not upon the character of the organiza- tion, or upon the particular circumstances of the case, but upon the arbitrary discretion of the mayor or other officers named in the ordi- nance, acting in his absence. It is therefore argued that, as between different persons, societies, associations, or organizations, the ordinance operates unequally, and creates unjust and illegal discriminations by its express terms, and makes such discriminations not only possible, but necessary in its administration, and therefore that the ordinance is void upon com- mon-law principles, as heretofore recognized and administered in the courts of the country. The rights of persons, societies, and organiza- tions to parade and have processions on the streets with music, banners, songs, and shouting, is a well-established right, and, indeed, the ordi- nance upon its face recognizes to a certain extent the legality of such processions and parades, and provides for permitting them, in the dis- cretion of the mayor, in all cases except those named, and as to those the right is practically secured. The ordinance, as framed, and as it is to be executed under the arbitrary discretion of the mayor or other officer, is clearly an abridgment of the rights of the people; and in many cases it practically prevents those public demonstrations that are the most natural product of common aims and kindred pur- poses. "It discourages united effort to attract public attention and challenge public examination and criticism by associated purposes.'* Anderson v. City of Wellington, 40 Kan. 173, 19 Pac. 719, 2 L. R. A. 110, 10 Am. St. Rep. 175, contains a careful discussion and exam- ination of a similar ordinance, which was there held to be void as contravening common right. In Re Frazee, 63 Mich. 396, 30 N. W. 72, 6 Am. St. Rep. 310, after full discussion by Campbell, C. J., a similar ordinance was also held void, and that it is not in the power of the legislature to deprive any of the people of the enjoyment of equal privileges under the law, or to give cities any tyrannical pow- ers; that charters, laws, and regulations, to be valid, must be capa- ble of construction, and must be construed, in conformity to consti- tutional princi])les, and in harmony with the general laws of the land ; and that any by-law which violates any of the recognized principles of lawful and c(|ual rights is necessarily void so far as it does so, and void entirely if it cannot be reasonably applied according to its terms ; and no grant of absolute discretion to suppress lawful action can be sustained at all ; that it is a fundamental condition of all liberty, and necessary to civil society, that men must exercise their rights in harmony with, and yield to such restrictions as arc neces- sary to produce, peace and good order ; and it is not competent to make any exceptions for or against the so-called "Salvation Army" because of its theories concerning practical wf)rk ; that in law it has the same right, and is subject to the same rcstricti PROCEEDINGS AND ORDINANCES The provision of the charter of the city of Detroit, under which it is claimed the city had power to pass the ordinance under which the complaint is made, reads: "That the council shall have power to provide for cleaning of highways, streets, avenues, drains, alleys," etc., "of dirt, filth and other substances ; * * * " also "to pro- hibit and prevent the incumbering or obstructing of streets, drains, alleys, cross-walks, sidewalks, and all public grounds and places, with vehicles, animals, boxes, signs, barrels, posts, buildings, dirt, stone, brick, and all other material and things whatsoever, of every kind and nature ; * * * " also "to control, prescribe, and regulate the manner in which highways, streets, avenues, lanes, alleys, public grounds, and spaces in said city shall be used and enjoyed; * * * " also "to prohibit and prevent the flying of kites, and all practices, amusements, and doings therein having a tendency to frighten teams and horses." The ordinance under which the complaint is made reads: "Sec. 12. Hereafter no person shall himself, or by another party, attach, place, print, paint, or stamp any placard, circular, .show-bill, or ad- vertisements, of any description whatever, except such as may be expressly provided by law, on any street or sidewalk, or upon any public place or object, in the city, or upon any fence, building, or property belonging to the city, or upon any telegraph pole, telephone pole, electric light pole or tower, or upon any hitching-post, horse- block, or curb-stone, in any public street or alley in the city of De- troit, and no person shall himself or by another circulate, distribute, or give away circulars, hand-bills, or advertising cards of any de- scription in or upon any of the public streets and alleys of said city." On the trial of the case, defendant's attorney asked for the dis- charge of the defendant, which the court overruled, and found the defendant guilty, and imposed a fine of three dollars, in default of payment of which fine defendant was ordered to be imprisoned in the Detroit house of correction for a period not exceeding 20 days. The said fine was imposed under authority of section 19, c. 55, of the ordinance, which reads: "Sec. 19. Any violation of the provisions of this ordinance shall be punished by a fine not to exceed one hun- dred dollars, and costs of prosecution; and in the imposition of any fine and costs the court may make a further sentence that the of- fender may be imprisoned in the Wayne county jail or the Detroit house of correction until the payment thereof: provided, however, that the period of such imprisonment shall not exceed six months." The allegations of error contained in the affidavit for the writ of certiorari are : That the ordinance upon which this complaint is based is invalid, in that the common council had no authority under the charter of the city to adopt the same ; that the ordinance is in- valid, because unreasonable, oppressive, and in contravention of constitutional rights ; that the court had no authority to impose any fine or penalty, because the ordinance under which the penalty is ESSENTIALS OF VALID ORDINANCE 143 claimed to be imposed is unconstitutional, in that it permits and au- thorizes the imposition of fines and penalties excessive and unreason- able and entirely disproportionate to offenses created and specified; that the court had no authority to impose a penalty, and the judg- ment is void because the ordinance under which the penalty imposed is claimed to be authorized is illegal, in that it provides for variable and uncertain penalties for offenses charged; that the defendant should have been discharged. Corporations derive all their powers from legislative acts, and they can pass no ordinance which conflicts with the charter. Where the legislature, in terms, confers upon a municipal corporation the power to pass ordinances of a specified and defined character, if the power thus delegated be not in conflict with the constitution, an or- dinance passed pursuant thereto cannot be impeached as invalid be- cause it would have been regarded as unreasonable if it had been passed under the incidental power of the corporation, or under a grant of power general in its nature. In other words, what the leg- islature distinctly says may be done will not be set aside by the courts, unless in conflict with the constitution, because they may deem it unreasonable. But where the power to legislate on a given subject is conferred, but the mode of its exercise is not prescribed, then the ordinance passed in pursuance thereof must be a reasonable exercise of the power, or it will be pronounced invalid. 1 Dill. ]\Iun. Corp. § 262. The fact, however, that an ordinance covers matters which the city has no power to control is no reason why it should not be enforced as to those which it may control. The unauthorized provisions do not invalidate the whole ordinance, if they can be separated from the rest of the ordinance without so mutilating it as to render it inoperative. Kettering v. Jacksonville, 50 111. 39. It is insisted upon the part of the prosecution that the power con- tained in the charter is sufficient to warrant the passage of the or- dinance. There is an express power in the charter to provide for cleaning the highways, streets, avenues, lanes, alleys, public grounds, and squares, cross-walks, and sidewalks, in said city, of dirt, mud, filth and other substance; also to prevent tlu- incumbering or ob- structing of streets, lanes, alleys, etc., and to control, prescribe, and regulate the manner in which the highways, streets, etc., shall be used and enjoyed, as well as to prohibit and prevent the flying of kites, and all practices, amusements, and doings therein having a tendency to frighten teams and horses, or dangerous to life or jiropcrty. This is not an express grant of power to the city of De- troit to pass a by-law or ordinance to prohibit a person from circulat- ing, distributing, or giving away circulars, hand-bills, or advertising cards of any description, in or upon any of the public streets and alleys of said city, and to punish by fine anrl imprisonment in the county jail or the Detroit house of correction for violation, and there is no such power implicfl in these provisions of the charter. 144 PROCEEDINGS AND ORDINANCES Even if it could be held that the charter authorized it, this part of the ordinance is not a reasonable exercise of the power granted. It is true that the miscellaneous throwing to the winds of hand-bills, circulars, or advertising cards may be an act that would be very desirable to prohibit. Such a distribution of cards or paper of any kind would not only litter up the street, and become a nuisance up- on and along the streets, sidewalks, and cross-walks, but naturally would tend to frighten teams and horses hitched upon or being driven along the streets, and great danger might be apprehended to life and limb ; yet the reasonableness or unreasonableness of an ordi- nance is not determined by the enormity of some offense it seeks to prevent and punish, but by its actual operation in all cases that may be brought thereunder. It is conceded in the present case that these cards were given to those only who expressed, or appeared to ex- press, a desire for the same, and that no cards were to be seen upon the ground or sidewalk at or near the place where the defendant was distributing them; and it is not pretended that the rights of any person were interfered with by defendant, or that any teams or horses were frightened. There was no indiscriminate scattering of the papers to the winds, and the cards of the size of one and one-half inches by two inches contained nothing but what was legitimate and proper for publication and distribution. The card itself was not only harmless, but the words printed thereon were an invitation to a moral and Christian assembly of people, gathered together for the public good. If this act can be classed as an ofifense punishable by fine and imprisonment, then selling or distributing newspapers upon the streets of the city would be punishable in the same way. To render ordinances reasonable, they should tend in some degree to the accomplishment of the object for which the corporation was created and its powers conferred. The unreasonableness of this ordinance is made apparent when we consider the penalty which may be imposed for its violation, — a fine of $100, and costs of prose- cution, and, in default of payment, imprisonment in the county jail or Detroit house of correction for a period of six months. If the conviction could be sustained, then any person upon any public street or alley, anywhere within the corporate limits of the city of De- troit, giving away advertising cards, however remote the street or alley from the business centers, could be convicted and punished in like manner. Laws which attempt to regulate and restrain our con- duct in matters of mere indifference, without any good end in view, are regulations destructive of liberty. Under our constitution and system of government the object and aim is to leave the subject en- tire master of his own conduct, except in the points wherein the public good requires some direction or restraint. What direction or restraint is required for the public good in the mere act of giving away an advertising card or hand-bill? This part of the ordinance is not aimed at the littering up of the streets, or to the frightening ESSENTIALS OF VALID OKDINANCE 145 of horses, but the offense is made complete in itself by the mere act of distributing or giving away of these enumerated articles. In Frazee's Case, 63 .Mich.' 396, 30 N. W. 72, 6 Am. St. Rep. 310, it was held by this court that a city ordinance providing that "no person or persons, associations or organizations, shall march, parade, ride, or drive in or upon or through the public streets of the city of Grand Rapids, with musical instruments, banners, flags, torches, flambeaux, or while singing or shouting, without having first ob- tained the consent of the mayor of said city," is unreasonable and invalid, because it suppresses what is, in general, perfectly lawful, and leaves the power of permitting or restraining processions to an unregulated official discretion. In that case Chief Justice Campbell, speaking for the court, said : "No one in his senses could regard a penalty of $500 for such trivial offenses as most of those covered by this by-law as within any bound of reason." Many decisions of the courts of other states are to be found holding by-laws, much less stringent and arbitrary in their terms, unreasonable and invalid. 1 Dill. Mun. Corp. § 253; Clinton v. Phillips, 58 111. 102, 11 Am. Rep. 52; Kip v. Paterson, 26 N. J. Law, 298; Commissioners v. Gas Co., 12 Pa. 318; Com. v. Robertson, 5 Cush. (Mass.) 438. This ordinance not only does not come within the power granted by the charter, but it is also unreasonable and unwarranted. It follows that the conviction must be set aside, the proceedings quashed, and defendant discharged. The other justices concurred. CooLET Cases Mun.C. — 10 1 16 OFFICERS, AGENTS, AND EMPLOYES OFFICERS, AGENTS, AND EMPLOYES I. Eligibility 1 STATE ex rel. TAYLOR v. SULLIVAN. (Supreme Court of Minnesota, 1891. 45 Minn. 309, 47 N. W. 802, 11 L. R. A. 272, 22 Am. St. Rep. 729.) Application for quo warranto. Dickinson, J. By this proceeding, the relator seeks an adjudi- cation as to the right of the respondent to hold the office of county attorney of Stearns county, for which office he received a majority of the votes cast at the general election in 1890. The point of con- tention is whether the respondent was legally elected, and can hold the office under such election, he being of foreign birth, and having never declared his intention to become a citizen of the United States until after such election. The contention that the relator has no such private interest in the matter as justifies him to invoke a decision upon it, is not sustained. The relator was elected to the office at the election in 1888, qualified and entered upon the discharge of its duties. He is still the incum- bent of the office, unless he has been superseded by the respond- ent, or unless a vacancy has occurred by force of the statute. The term of office for which the relator was elected was "two years, and until his successor is elected and qualified." Gen. St. 1878, c. 8, § 210. If the election of the respondent was not legally authorized, the relator would continue to hold the office by force of this express provision of the statute. State v. Benedict, 15 Minn. 198 (Gil. 153); People V. Tilton, Z7 Cal. 614. The case in this particular is dis- tinguishable from that of County of Scott v. Ring, 29 Minn. 398, 13 N. W. 181. We therefore hold that the relator's interest entitled him to call in question the legality of the respondent's election. We come then to the question of the right of the respondent to hold the office by virtue of his election in 1890. It appears that at the time of the election, the respondent was not a citizen of the United States, and had not declared his intention to become a citizen, conformably to the laws of the United States upon the subject of naturalization. He relies, however, upon the fact that after the election, and before the commencement of the term of office for which he was elected, he duly declared his intention to become a citizen ; and so the fact is shown to be. It is not to be questioned 1 For discussion of principles, see Cooley, Mun. Corp. § 56. ELIGIBILITY 147 that at the election in 1890, the respondent was not entitled to vote at any election in this state. The constitution (article 7, §§ 1, 2) so declares. Section 7 of the same article reads: ''Every person who, by the provisions of this article, shall be entitled to vote at any elec- tion, shall be eligible to any office which now is, or hereafter shall be, elective by the people in the district wherein he shall have resid- ed thirty days previous to such election, except as otherwise provid- ed in this constitution, or the constitution and laws of the United States." This was intended as a restriction, and it has the efifect of a constitutional declaration that only such persons as by the provi- sions of this article are entitled to vote shall be "eligible" to any elective office. We need not dwell upon this proposition, for the argument for the respondent virtually concedes it. He rests his case upon the proposition that this restriction refers merely to the holding of of- fice, and not to elections, and hence that he was legally entitled to the office, because his disqualification was removed before the com- mencement of the term, although subsequent to the election. This question has not been heretofore decided in this state. The terms of the statute construed in Territory v. Smith, 3 Minn. 240 (Gil. 164), 74 Am. Dec. 749, were such that the decision has no bearing upon the construction of the very different language of the constitutional provision under consideration. The case of Barnum v. Oilman, 27 -Minn. 466, 8 N. W. 375, 38 Am. Rep. 304, relating to a different constitutional provision did not involve the question here presented, although language was used in the opinion of the majority of the court in harmony with the contention of this respondent. Our intjuiry is as to the meaning of the word "eligible" as used in the constitution. In Webster's Dictionary its meaning is defined to be, "proper to be chosen ; qualified to be elected." In this and the cognate words derived from the same source — the Latin verl) "cli- gere" — the idea primarily involved is that of choosing, selecting. It is exi)ressed in our verb "to elect," derived from the same Latin worrl. This primary and strictly proper signification of the word "eligible" is also its well-understood popular meaning. If we had adopted the ff)rm "electable" for the adjective instead of following more nearly the form of the verb fn»m which it is derived, the mean- ing might have been more obvious, but it would not have been dif- ferent. There seems to be no sufficient reason why the ])roper and ordinary meaning should not be giveti to the word "eligible," in the constitution, as though it had read, "no person shall be qualified to be elected," etc. This is the plain anfl natural construction of the language, and the other provisions with which that immediately un- der consideration is associated, adrl to the probability that this word was intended to refer to the election to office, and not merely to the holding of office. 148 OFFICERS, AGENTS, AND EMPLOYES The whole article relates to the elective franchise. It declares the disability of certain classes, including persons of foreign birth who have not declared their intention to become citizens of the United States, to vote at any election. That declared disability cer- tainly relates to the time when an election takes place. Closely associated with this is the provision in question, which in legal ef- fect declares that the persons thus disqualified to vote shall not be "eligible to any office" elective by the people. Neither the proper signification of the language, nor the context, justify the conclu- sion that at this point there is an abrupt transition in the subject from elections to the holding of office. Elsewhere in the constitu- tion we do find express provision relating to disqualification for hold- ing office as in section 11 of article 6, and in section 9 of article 4. Again, the positive and unambiguous restriction upon the right to vote at any election is in itself a reason supporting the conclusion that when the disqualified classes are declared to be ineligible to any elective office, it was meant that they could not be legally elected, or electable, if we may use such a word. There is little reason to sup- pose that it was intended that persons who by reason of their alien- age, or for other .specified reasons, were expressly excluded from the right to vote at any election, should still be deemed qualified to be elected to any office. In State v. Murray, 28 Wis. 96, 9 Am. Rep. 489, it was considered to be a fundamental principle of popular gov- ernment, even in the absence of any constitutional or statutory re- striction, that one who is not a qualified elector cannot legally hold an elective office. According to the opinion of Ryan, C. J., in the later case of State v. Trumpf, 50 Wis. 103, 5 N. W. 876, 6 N. W. 512, this proposition should in principle be more broadly stated, and only such persons as are themselves electors at the time of the elec- tion should be deemed to be eligible to office. We think that this must certainly be so considered under a constitution which in efifect declares that only such persons shall be eligible to elective offices. The construction which we place upon the constitution is sup- ported by Searcy v. Crow, 15 Cal. 117; State v. Clarke, 3 Nev. 566; State V. McMillen, 23 Neb. 385, 36 N. W. 587. In Smith v. Moore, 90 Ind. 294, (followed in Vogel v. State, 107 Ind. 377, 8 N. E. 164,) the word "eligible" was construed as referring to the time of the commencement of the term for which a person is elected. The dis- senting opinion of Elliott, J., referring to the earHer decisions in that court, is worthy of attention. Our conclusion is that as the case now appears, the respondent was not legally elected to the office, and that his subsequent declaration of his intention to become a citizen does not entitle him to hold the office. It is therefore ordered that the respondent's motion to dismiss the order to show cause be denied, and that the application of the re- lator for a writ of quo warranto be granted. APPOINTMENT AND ELECTION 149 II. Appointment and Election '^ LAWRENCE v. INGERSOLL. (Supreme Court of Tennessee, 1889. 88 Teun. 52, 12 S. W. 422, 6 L. R. A. 308, 17 Am. St. Rep. 870.) Snodgrass, J.^ The bill in this cause was filed by J. C. Law- rence, claiming to be a duly-elected and qualified member of the board of education of the city of Knoxville, for an injunction against de- fendants and the other four members of said board, to prohibit the meeting and action of said board without him, and to compel defend- ants, Dv mandamus, to recognize him as a member of the board, and permit him to take part in its proceedings, upon allegations of re- fusal of defendants so to do. The injunction issued, and, on final hearing, mandamus was awarded as prayed for. Respondents ap- pealed, and assigned errors. * * * Was the complainant elected, and is he therefore entitled to compel the defendants to admit and recognize him as a member of the board? To determine this it is necessary to examine his claim to election, and then ascertain if, under the law, it is well founded. To support the first, he shows the following record of the minutes of the proceedings of the board of mayor and aldermen, in addition to the notification or certificate of the recorder, before referred to, — an indorsement, thereon of the recorder that complainant had taken the oath required by law : "At a call meeting of the board of mayor and aldermen of the city of Knoxville, held Friday, Jan. 27, A. D. 1888, there were present, and answering roll-call. Aldermen Selby, Barry, Hockenjos, Jones, Albers, House, Perry, and McDaniel. * * * Alderman Perry moved to go into an election of the city school board, to fill out the unexpired term of Hon. M. J. Condon resigned. Motion carried. * * * Alderman Perry nominated F. L. Fisher. Alderman Jones nominated Rev. J. C. Lawrence. The ballot was taken, and it was found that J. C. Lawrence had received four votes, and F. L. Fislier three votes, and a blank without any name was also found, and thrown out. Mayor Luttrell declared J. C. Lawrence legally elected as a mem- ber of tbc city school board of education, to fill out tlu' unexpired term of Hon. M. J. Condon, resigned. * * * " The provisions of the charter in relation to the election arc found in several sections of the act of June 10, 1885, entitled "An act to reduce 2 For (li.scusslon of pririHples see Cooley, Mini, rnrii. S •'",7. 8 Part of this opinion and all of the dissenting opinion of Turney, C. J.. are omitted. 1 .")0 OFFICERS, AGENTS, AND EMPLOYES tlie act incorporating the city of Knoxville, and the various amendments thereto, to one act, and to amend the same." Section 63 of this act provides that there shall be a board of education for the city, to con- sist of five members, — citizens of the town, and not members of the board of mayor and aldermen. "Sec. 64: The board of education shall be elected by the board of mayor and aldermen, from the citizens and qualified voters of the town by ballot ; and the term of office of each member shall be five years." "Sec. 3. * * * i^iig board of mayor and aldermen shall be composed of nine aldermen." "Sec. 4. *. * * The mayor shall not vote, except in case there shall be a tie vote, on any question, and then he shall by his vote de- cide the question." "Sec. 5. * * * It shall require a majority of the members of the board to form a quorum for the transaction of business." No provision being made for the filling of vacancies in the board of education, this defect was, remedied by an ordinance as follows : "In case any vacancy shall occur in the board of education, the un- expired term of such member vacating shall be filled by an election by the board of mayor and aldermen, as soon as practicable after such vacancy occurs." * * * It is observed that there are nine aldermen, who, with the mayor, are to make the election, if all are present, — the mayor having no vote, — as no tie could result; that if less than nine are present, but a majority of that number, then those present may elect; but, if equally divided in an election, the mayor may cast the deciding vote, — the only contingency in which his act can affect the question. In the election now being considered a majority (eight) were present, and participating in the election. This appears both in the recitals of the records herein before shown and in the fact that seven ballots were cast for the candidates, and one blank ballot. It remains now to in- quire, what is the effect of this action on the part of this board, acting through its eight members and authorized quorum? In determining this question, it must be borne in mind that we are not examining the effect of an election of an indefinite number of electors, as the vote of the body of the people of the city, or the vote of any indefinite number of people, in a popular election ; or the rule governing the one is entirely different from that governing the other. In the case of general or special elections by the vote of the people, — by the vote of an indefinite number, — the common-law rule is that a plurality of votes elects. That is, the candidate getting more votes than any other is elected, although he does not get a majority of the votes cast, and hence it makes no difference that there are absent voters, or blank votes cast. They do not change the fact that one candidate receives a plurality ; and cannot do so, in the very nature of things. Cooley, Const. Lim. (5th Ed.) 779. * * * APPOINTMENT AND ELECTION 151 It is equally well settled, and, indeed is not open to controversy, that when an election is to be made by a definite body of electors, as members of a board of aldermen, that, "in the absence of special pro- vision, the major part of those present at a meeting of a select body must concur, in order to do any valid act." 1 Dill. Mun. Corp. § 27Q * * * We have heretofore seen that under this charter a majority of the quorum is required. This author shows, further, that the rule re- specting the election by a definite number in a municipal body extends also to other bodies of definite numbers, as legislative, etc., and shows that in such case a majority must concur, and vote for the candidate, in order to elect him. Quoting several cases and instances of high authority, he says, illustrating: "By section 15 of the Revised Stat- utes of the United States it is provided that all votes for senators shall be by viva voce vote of members of the legislature, and, by sec- tion 27, that all votes of representatives in congress must be written or printed ballots ; and that all votes received or rendered contrary to such action shall be of no efifect. It has been held that when there is no provision of law making a plurality sufficient for an election a majority of the votes cast must be for a candidate, in order to elect him." Id. 332, citing State v. Fagan, 42 Cong. 35. He cites several cases sustaining the text, the notes being as follows : "In the absence of any act of congress on the subject, a state may pass a law, or a joint or concurrent resolution of the legislature, requiring a majorit)' of all the members elected to both branches of the legislature to elect a sena- tor of the United States ; and in such a case, where twenty-nine votes are given for one candidate, and twenty-nine blank votes were given, it was held that this did not constitute an election. Yulee v. Mallory, 2 Cong. El. Cas. 608; Senate El. Cas. 146." And again: "In 1866, in the Stockton Case, in New Jersey, (Senate El. Cas. 264,) it appeared that there was no law in the state regulating the election of senators, and there had been a practice of regulating the election of all officers by resolution of the convention ; and at the convention for the election of senators in 1865 a resolution was adopted that a plurality of the members present might elect. The judiciary committee, reporting through Senator IVunihull, decided in favor of the validity of the election ; but the resolution was amended by the close vote of 22 to 21, and the candidate was declared not elected. It was claimed by some of the senators that "the parliamentary law re(|uired a majority to elect, and this could only be changed by a law or resolution of the house, acting in the legislative capacity." Id. 332. Thus it appears by concurrence of text-book, judicial, senatorial, congressional, and legislative authority, that the rule is settled that a majority of a definite body present and acting must vote for a can- didate, in order to elect liim, and that it is not sufficient that he re- ceive a plurality of votes cast, or a majority, if blank ballots are ex- 152 OFB^ICEUS, AGENTS, AND EMPLOYES cliKled. His claim must not depend upon the negative character of the opposition, but upon the afiirmative strength of his own vote ; that it is not sufficient that a majority were not cast against him, to be elected. The majority must be cast for him. "So, if a board of village trustees consists of five members, and all, or four, are pres- ent, two can do no valid act, even though the others are disqualified by interest from voting, and therefore omit or decline to vote. Their assenting to the measure voted for by the two, will not make it valid. If three only were present, they would constitute a quorum. Then, the votes of two, being a majority of the quorum, would be valid. Certainly so, where the three are all competent to act." 1 Dill. Mun. Corp. § 217. These authorities answer the proposition, urged by complainant, that the blank vote must not be considered, and it must be treated as though only 7 votes were cast, and he got 4. It is true that the blank vote cannot be, in the technical sense, a ballot, but it is nevertheless, an act of negation, — afiirmative in showing that an- other voter acted negative in determining the majority. It was one of eight, attempted to be cast with the purpose of not supporting com- plainant, and is only to be counted in showing that he did not get a majority, just as would have resulted had it been an illegal vote, — as being for two candidates, or otherwise. But complainant's case would be no better if that vote was entirely disregarded, because the record otherwise shows that eight aldermen were present; and, without reference to their vote, he must have re- ceived five votes in order to be elected. The roll-call shows eight pres- ent. On the vote to reconsider, eight voted. Indeed, it is not any- where pretended by complainant that they were not all present and par- ticipating; and, nowhere the contrary affirmatively appears. But it is said that the mayor declared the election carried, and that this is equivalent to a vote for him ; and, with four votes for him and four not for him, the mayor's vote or action makes the election. There are several answers to this, all conclusive. First, the mayor had no right to vote, as there was no tie ; and, second, he did not vote ; third, his action, declaring the result, without voting, would not make an election, because the law does not allow him to declare a candidate, even on a tie, elected, without voting at all. He could only, in such cases, vote, and make an election ; and, when he does this, it makes it, even though he should then declare the candidate not elected. A still further argument is made, however, that the board appears to have ratified it, and this should be treated as giving validity. The answers to this are, if possible, even more conclusive. They are — First. That the board has not power to elect, except by ballot. There was never but one ballot cast, and, if that did not make it, no election could otherwise be made. Second. The board did not ratify it. On the contrary, four members voted to reconsider, and therefore against ratification, and four for it. This, at least, while unimportant, was not APPOINTMENT AND ELECTION 153 an affirmation. It was, at most, but a tie, which the mayor might by his vote have decided. He did not choose to vote, but, instead, declared the matter lost. In both instances the mayor refused or failed to vote, and contented himself with declaring that the results stood accom- plished without his vote. We are not presenting the parliamentary question, or attempting to show that four against four would rescind any legal action. We are only showing that no majority ever in any way voted to ratify an election. The argument need not be repeated here that this meant nothing, and accomplished nothing. The law is that they could not make an election by ratification, and the fact is they did not. In addition to the effort to reconsider, it is said, as evi- dence of ratification that on the notification, called a "certificate," of the recorder, in which he advises complainant of his election, he ap- pends to that statement the words, "by order of the board," and that this is evidence of ratification. Having shown that ratification could not make, or make valid, an election, it is perhaps superfluous to deal with the evidence of it ; but, having denied the fact, it is proper not to overlook this point, as bearing on the question of fact as to whether or not any act of the board was an attempted ratification. We have seen that the recorder has nothing to do with the election, either to make or declare or certify it, under the charter. This whole paper, including indorsement, therefore, goes for nothing. His statement, in a paper that he was not required to make, that it was done by order of the board, would not prove that fact, of course; and no other evi- dence of it is offered. He may, and doubtless did, think himself au- thorized to make it, and may have been ordered to do so; but no such order is produced, and nothing else proves it. The construction herein given to the charter regulating municipal elections and the action of municipal boards is not only sound in law, but in policy. It would be of the most injurious consequence to hold that municipal bodies could make elections or appropriate money, legis- late rights away or pass measures affecting vast property interests, by less than an affirmative vote of an acting majority. It is going suffi- ciently far to allow them to vote by majority of a quorum present ; but if, by legislative act or judicial construction, they should be author- ized to act by a majority of a quorum, there would be no safe-guards effectual to protect the public, within the scope of their authority. It is equally salutary to provide, by following well-founded princii)les and precedents, that what they will not or do not in fact do by vote they shall not accomplish by declaring it done without vote. Reverse the decree, and dismiss the bill, with costs. 151 OFFICERS, AGENTS, AND EMPLOYES III. Officers De Facto * OLIVER V. JERSEY CITY. (Court of Error and Appeals of New Jersey, 1899. 63 N. J. Law, 634, 44 Atl. 709, 48 L. 11. A. 412, 76 Am. St. Rep. 228.) Certiorari by the state, on the prosecution of David W. Oliver, against the mayor and aldermen of Jersey City and the Greenville & Hudson Railway Company, to review an ordinance of the board of street and water commissioners of Jersey City. Ordinance set aside (63 N. J. Law, 96, 42 Atl. 782), and defendants bring error. Nixon, J."* On September 19, 1898, the board of street and wa- ter commissioners of Jersey City passed "An ordinance granting to the Greenville and Hudson Railway Company permission to cross Communipaw avenue with its tracks at grade, and regulating such crossing."' The ordinance was vetoed by the mayor, but was passed again, notwithstanding the objections of the mayor, on the 3d of October, 1898. The defendant in error, a resident and taxpayer of Jersey City, was allowed a writ of certiorari, and a judgment of the supreme court was af terv/ards obtained setting aside the ordinance, and this writ of error brings that judgment before us for review. * * * But the ordinance is assailed principally upon the ground that it was not legally adopted. The board of street and water commissioners is the governing body of Jersey City, and it enacts all the local laws of that city respecting streets and water. It consists of five members, and the ordinances passed are subject to the mayor's approval, and, if vetoed by him, may be again passed, notwithstanding his objections, by four votes of the board. 1 Gen, St. p. 466. The ordinance in ques- tion was adopted at a regular meeting held September 19, 1898, there being four votes for and one against it. It was vetoed by the mayor on September 28th, and finally passed, over his veto, on the 3d of October, 1898, receiving the same number of votes. But the con- tention is that one of them was -not such as could give efficacy to the ordinance. It was cast by Robert G. Smith, who had been mus- tered into the United States service as colonel of the 4th regiment of New Jersey volunteers, on July 18, 1898. The statute creating the board of street and water commissioners provides (1 Gen. St. p. 465) that "no such commissioner shall accept or hold any other place of public trust or emolument within the elective franchise, nor any appointment to public office, unless he shall first resign his said of- fice, and if he shall accept such other office without having resigned his office of such commissioner, upon his acceptance of such place of * For discussion of principles, see Cooley, Mun. Corp. § 59. 5 Part of the opinion is omitted. OFFICERS DE FACTO 155 appointment, his office shall thereupon become vacant." While there has not been furnished the best proof that Smith actually accepted the office of colonel, yet, in the absence of any rebuttal, we shall hold, as did the court below, that it is sufficient, and that he did accept such office. * * * The question at issue is thus narrowed down to the efficacy of Smith's vote in the adoption of the ordinance. Without his vote, it could not have been passed over the veto, neither could it without every other vote it received, and it is not strictly accurate to say that his vote had any more jXDtency than any other. After his appointment. Smith continued to discharge the duties of his office as commissioner, and was present and voted when the ordinance was adopted, as the official minutes show. It would therefore be a pure solecism to call the office vacant at that time, except in the strictly legal sense of hav- ing no occupant with a de jure title. The acts done by Smith in re- spect to the adoption of the ordinance were neither more nor less than he would have done had the 4th regiment never been organized. It is therefore manifest that the words of the statute (1 Gen. St. p. 465) already quoted, declaring that when a commissioner accepts an- other office his former office shall become "vacant," cannot mean, in a situation like this, that it is corporeally vacant; for the person lawfully elected to fill it remained in possession discharging its duties. Mere words in a statute cannot alone make an office unoccupied which in fact is occupied. The legal meaning of the words, in such circum- stances, is that the office has no occupant who holds by a good title in law, and that the appointing power may at once be exercised to fill it, or, if it is an elective office, the people may elect, and no adju- dication is required to declare the vacancy, although the newly ap- pointed or elected oflicer may find it necessary afterwards to resort to quo warranto proceedings to obtain actual possession of the office. Under the old rule of common law, upon accepting another and incompatible office, tiic first became vacant, and, if the occupant re- fused to abandon it, a writ of quo warranto to determine the ques- tion of incompatibility was the remedy; and where the common law has been superseded by statutes declaring a vacancy under like cir- cumstances, and the occujjant remains, a similar course must be pur- sued to obtain jjossession, or such otiier stci)s as the facts may war- rant. There are familiar precedents in our own state which illustrate the rules here stated. In Clark v. Iannis, 45 N. J. Law, 69, the court said: "It is clear, both upon reason and autlicjrity, that a statute de- claring an office vacant, for some act or omission of the incumbent after he enters upon his duties, does not execute itself." * * * The same practice prevails in other states, and the rule is clearly stated in State v. Jones, 19 Ind. 356, where it is said: "Where it appears, prima facie, that acts or events have occurred subjecting an office to a judicial declaration of being vacant, the authority authorizetl to fill such vacancy, supposing the office to be vacant, may pixiceed be- inO OKFIOKUS, AGKNTS, AND EMPLOYES fore procuring a jiulicial declaration of the vacancy, and appoint or elect, according to the forms of law, a person to fill such office ; but if, when such person attempts to take possession of the office, he is resisted by the previous incumbent, he will be compelled to try the right, and oust the incumbent, or fail to oust him, in some mode pre- scribed by law." Smith, then, being in the office under color of a legal title ab origine, and no other person claiming a right to it, was he a commissioner de facto? Lord Ellenborough, in 1805, in Rex v. Bedford Level, 6 East, 356, said : "An officer de facto is one who has a reputation of being an officer; who assumes to be, and yet is not, a good officer in point of law." This definition has never been questioned, and all those given by the text writers since are little more than variations of this one. Tested by this ancient or any modern definition. Smith must be held to have been such an officer when this ordinance was passed. He certainly had color of title and reputation; for the legal voters of Jersey City elected him in the spring of 1898 a member of the board for the term of three years, and he duly qualified as such, and entered upon his duties, with the full knowledge and acquiescence of the public. He had never resigned, the board had not been abol- ished, and his term had not expired. * * * He did not assert a right which any other person claimed, or per- form any official duties that any one else pretended to have any right to perform in his stead, but only those duties which belonged to the office he was elected to fill, and which the law contemplated should be done, and the public expected him to do when they elected him ; for the law creating the board provides that the judgment and wisdom of five commissioners should determine the questions that arise in the passage of ordinances concerning the streets. The board, also, rec- ognized his membership. He participated in their proceedings. His name was called and vote recorded in the adoption of ordinances, and, if not present, his absence was duly noted in the official minutes. With all these facts and circumstances appearing in the record, and undisputed, we must hold that Smith was a commissioner de facto. This conclusion is in accord, we think, with the decisions in this state and elsewhere on this subject. In Dugan v. Farrier, 47 N. J. Law, 383, 1 Atl. 751, Justice Dixon said: "One who assumes an of- fice legally, and in good faith remains in it after his title has ended, is a de facto officer." The same doctrine was held in Flaucher v. City of Camden, 56 N. J. Law, 244, 28 Atl. 82. * * * In the case of Sheehan, 122 Mass. 445, 23 Am. Rep. 374, one Mr. Hawkes, while holding the office of justice of the peace, was elected to the state legislature, and had qualified and entered upon his duties, but con- tinued to act as justice, although the constitution of Massachusetts provided that, upon accepting another office, that of justice should become vacant; but the court, by Justice Gray, said: "If Mr. Hawkes, by taking his seat in the house of representatives, ceased to be a jus- OFFICERS DE FACTO 157 tice de jure, he was, by color of the usual signs of judicial office, sit- ting in the court, using its seal, and attended by his clerk, and, no other person having been appointed in his stead, a justice of the peace de facto." Decisions of like import may be found in every state. Smith being a commissioner de facto when he voted for the ordi- nance, it must, upon the application of well-settled legal principles, be held valid and effective as to the rights of the public and third per- sons. In Mitchell v. Tolan, 33 N. J. Law, 195, Justice Depue said : "Premising that an officer is one who exercises the duties of an office under color of right, by virtue of an appointment or election to that office, as distinguished on the one hand from a mere usurper of an office, and on the other from an officer de jure, the acts of an officer de facto are valid, as far as the rights of the public or third persons are concerned." In Woodside v. W'agg, 71 Me. 207, it was held that "a person exercising the functions of a valid public office by color of right will be deemed to be an officer de facto, and his acts will protect third persons, although he has legally forfeited his office by the acceptance of an incompatible one." In State v. Carroll, 38 Conn. 449, 9 Am. Rep. 409, it was said : "The de facto doctrine was introduced into the law as a matter of policy and necessity, to pro- tect the interests of the public and of individuals, where those inter- ests were involved in the official acts of persons exercising the duties of an office without being lawful officers. * * * But this legal protection is not afforded where the defects in the title of the officer are notorious, and such as to make those relying on his acts chargeable with such knowledge. What, then, may be con- sidered notice sufficient to warn third jiersons and the j)ublic? The expiration of the term of an officer, and the appointment or election and qualification of his successor; the resignation of a public offi- cer; the abolition of the office itself by an act of the legislature; the refusal of the board or legislative body of which the officer is a mem- ber to recognize him; or the judgment of a court against the title of the officer, — are such facts as third persons and the public arc, as a general rule, required to take notice of. But in this case none of these facts existed, but just the contrary were known to every citizen of Jersey City. All knew that Smith had been legally elected; that he had not resigned ; that his term had not expired ; that no court had f|UCstioncd his right to serve; that no one claimed a right to his seat; that the board had not been abolished; that the members rec- ognized him as one of their number; and that he took part in their proceedings. All of these things were enough to conrirm the l)ilief of third ])ersons and the public in vSniith's right to serve tluiii. If it was publicly known that he was cokjiiel of the 4th regiment, it was (|uitc as publicly knfuvn on the 3d of October, when the ordinance was adopted, that the war with Spain had ended, and only the terms of a formal treaty of peace were being considered. Whether he had in fact accepted the office of colonel, and what the nice distinc- 158 OFFICERS, AGENTS, AND EMPLOYES tioiis are between tie jure and de facto officers, they could not be ex- pecleil to know, nor were they bound to know, before accepting the benefits of anv ordinance he might by his vote assist in passing. • Another significant proof of the general acquiescence of the public in Smith's exercise of the office appears in the fact that the mayor of the city, whose veto, as printed in the record, manifests great hos- tility to the ordinance, well knew that the four votes that first passed it could pass it over his veto, and who had the power to fill a vacancy in the board, if he believed that any existed, had failed to make any attempt to appoint a successor, although he had been mustered into service in July. The mayor, as the chief representative of the public, had, so far as the record shows, acquiesced in his exercise of the office, and in his veto message does not claim that any illegal vote was cast for the ordinance. * * * There are no facts in this case to justify us in relaxing the wise and ancient rule, so deeply rooted in public policy, that the acts of de facto officers, holding under color of a title originally lawful, when acting in good faith, will protect third persons and the public in their dealings with them, whether serving alone or as members of a gov- erning or legislative body. * * * But this case rests entirely upon the question whether Smith, when he voted for the ordinance in dispute, was a commissioner de facto, and his acts, therefore, valid, as far as the rights of third parties and the public are concerned. We hold that he was such an officer, and that the ordinance is valid. This conclusion results in a reversal of the judgment of the supreme court setting aside the ordinance. IV. Salary « MARQUIS V. CITY OF SANTA ANA. (Supreme Court of California, 1894. 103 Cal. 661, 37 Pac. 650.) Action by W. H. Marquis against the city of Santa Ana for salary as assessor. Judgment for plaintifif. Defendant appeals. Harrison, J.'^ The plaintifif was elected to the office of city assessor of the defendant on the 13th of April, 1891, and entered upon the duties of his office April 20, 1891. Previous to his election, viz. March 16, 1891, the salary of that office had been fixed by an ordinance of the city at $375 per year, payable one-half thereof on the first Monday of July, and one-half thereof on the first Monday of September. March 2, 1891, the legislature passed an act (St. 6 For discussion of principles, see Cooley, Mun. Corp. § 61. 7 Part of the opinion is omitted. SALARY 159 1891, p. 22) providing that in cities in this state, excepting municipal corporations of the first, second, third, and fourth classes, and cities operating under a freeholders' charter, the assessment of property made by the county assessor might be made the basis of municipal taxation. The act, however, contained the following proviso: '"Pro- vided, however, that the provisions of this act shall not apply to or be in force in any city or municipal corporation until its board of trus- tees, common council, or other legislative body, shall have passed an ordinance electing to avail itself of the provisions of this act, and filed a certified copy of the same with the auditor of the county in which such municipal corporation or city is situated on or before the first Monday in March of each year." The defendant is a municipal corporation of the fifth class, and on February 15, 1892, through its board of trustees passed an ordi- nance electing to avail itself of the provisions of the above act, and by the same ordinance repealed its former ordinance fixing the com- pensation of the city assessor. A copy of this ordinance was filed with the county auditor of Orange county, in which the city of Santa Ana is situated, on February 23, 1892. March 21, 1892, the defendant passed an ordinance repealing a prior ordinance providing for a street poll tax; so that all of the duties imposed upon the assessor by virtue of any city ordinance were taken away. After the passage of tlnese ordinances, the plaintiff performed no duty as city assessor, except to make out the list of male persons over the age of 21 years residing within the limits of the city, required by section 787 of the municipal government act. The defendant refused to allow or pay to the plain- tiff any salary for the second year of his incumbency of the office, and he thereupon brought this action. * * * 2. Section 755 of the municipal government act (St. 1883, p. 251) provides: "The clerk, treasurer, assessor, marshal, city attorney and recorder shall severally receive at stated times a compensation to be fixed by ordinance by the board of trustees, which compensation shall not be increased or diminished after their election, or during their several terms of office." The power of the legislature to abolish the office of city treasurer, or to change the compensation of the officer, or its power to authorize the city to change his compensation during his term of office, is not presented in the present case, as the legislature has neither abolished the office, nor changed the comi)en- sation, nor given to the city the authority to make such change. As the power of the defendant to fix or change the salary of its officers rests entirely upon statute, the exercise of this power is subject to all the limitations contained in the statute. Tile plaintiff was elected to the office of city assessor after the adoption of the ordinance fixing the amount of his salary, and the limitation in the above section that his compensation shall not be in- creased or diminished during his term of office renders the act of the defendant repealing the ordinance fixing his salary nugatory. 160 OFFICERS, AGENTS, AND EMPLOYES As the dcfcmlant could not directly, by express ordinance for that purpose, diminish the amount of his salary, the same result could not be accomplished by it indirectly, either by accepting the provisions of the act of March 2, 1891, or by doing away with the necessity for his services through its adoption of the ordinance abolishing the street poll tax. The Vight of an officer to the salary fixed by law for that office is not impaired by any change that may be made in the duties of the office, or even by an entire cessation of those duties, so long as the office itself remains in existence. 3. It is urged by the appellant that its election to avail itself of the provisions of the act of March 2, 1891, had the effect to abolish the office of city assessor. As the office is, however, created by the legislature, it could not be directly abolished by the city; much less could its abolition be implied from any act that did not in terms pur- port to abolish it. The office is provided fov in section 752 of the municipal government act, which has never beeK repealed; and the act of March 2, 1891, instead of sustaining the suggestion of an im- plied repeal of that section, expressly declares that its provisions shall not be given force in any city until it shall have passed an ordinance electing to avail itself thereof, on or before the first Monday in March of each year, thus implying that the office continues to exisV The duties of the city assessor are fixed by section 787 of the municipal government act; and while it may be conceded that the election bv the defendant to avail itself of the provisions of the act of March 2, 1891, did away with the necessity for the performance by th.e assessor of any acts connected with the assessment of property, there- tofore imposed upon him, so long as such election remained in forc^ it does not follow that the office of assessor was thereby abolished. Section 787 prescribes as one of the duties of this office that "the as ■ sessor shall during said term also make a list of all male persons f •- siding within the limits of such city over the age of twenty-one years, and shall verify said list by his oath, and shall on or before the first Monday of August in each year deposit the same with the city clerk." It is urged by the defendant that, inasmuch as the only apparent object for which this list is to be made is to form the basis for col- lecting an annual street poll tax, the repeal of the ordinance pro- viding for the street poll tax relieved the plaintiff from the duty of preparing this list. The statute, however, under which he holds his office, makes the preparation of this list one of his official duties ; and we are not at liberty to assume that the only object of this re- quirement was to enable the city to collect a street poll tax, or that he would be justified in omitting this official duty prescribed by the stat- ute, even though the city, by its ordinance, rendered his act in pre- paring it of no avail to it. The city had still the power to pass an ordinance imposing this tax, and might then avail itself of the list thus prepared ; but, whether the duties have been increased or dimin- ished, or entirely dispensed with, so long as the office remains, the REMOVAL 161 salary affixed thereto is an incident of the office, and must be paid to the incumbent. We have, however, seen that the office has not been abohshed; and the defendant does not contend that, if the of- fice is still in existence, the respondent is not its incumbent. It follows that he is entitled to the salary attached to the office at the time of his election, and that the action of the court in holding this defense to be unavailing was correct. The judgment is affirmed. V. Removal ^ STATE ex rel. HART v. CITY OF DULUTH. (Supreme Court of Minnesota, 1893. 53 Minn. 238, 55 N. W. 118, 39 Am. St. Rep. 595.) Certiorari in the name of the state, on relation of James Hart, Jr., and others, against the common council of the city of Duluth and others, to review and quash the action of respondents in removing relators from the office of fire commissioners. Mitchell, J.^ By the charter of the city of Duluth, all powers and duties connected with, and incident to, the government and dis- cipline of the fire department of the city are vested in three commis- sioners, called the "Board of Fire Commissioners," who have entire control of the department, including the appointment and discharge of all employes connected with it, and making their own rules and reg- ulations for the government of the same. These commissioners are "on nomination of the mayor," "appointed by the common council," and hold their office for the term of three years. The charter provides that "any member of said board may at any time be removed by a vote of two thirds of all the members elect of the common council of said city for sufficient cause: * * * provided, that the said com- mon council shall i)reviously cause a copy of the charges preferred against such member sought to be removed, and notice of the time and place of hearing the same, to be served on him at least ten days pre- vious to the day so assigned, and opportunity be given him to make his defense personally or \)y ccnmsel." It is here sought, by certiorari, to review the proceedings of the common council in assuming to re- move the relators from the office of fire commissioners. * * * The first contention of relators is that the common council never acquired jurisdiction, because the notice of hearing and the copy of the charges were not served on them as recjuired by llic charter. The particular objection is that, when the service was made on them, the « For flisnissioii of priiuiplfs, see Cooh-y, Miin. Corp. § 03. • I'.'irt of the oi)inioii is oiiiitfcd. COOLEY Ca-ses Mun.C. — 11 1 r.2 OFFICERS, AGENTS, AND EMPLOYES resolution of the common council preferring these charges against them had neither been approved by the mayor, nor passed over his veto, as required by section 1, c. 3, of the city charter. There is no merit in this point. Under the charter the power of removal from office is vested solely in the common council, and the mayor has no power over, or control of, their proceedings in presenting or in- vestigating charges against a city official with a view to removal from office. Their action in preferring charges against relators was not such an ordinance or resolution as comes within the purview of sec- tion 1, c. 3, and did not require the approval of the mayor before it took effect. The next question is whether the charges presented were sufficient in law to constitute a cause for removal, — whether they were sufficient in form and substance to authorize the common council to proceed. "Cause," or "sufficient cause," means "legal cause," and not any cause which the council may think sufficient. The cause must be one which specially relates to and affects the administration of the office, and must be restricted to something of a substantial nature directly af- fecting the rights and interests of the public. The cause must be one touching the qualifications of the officer or his performance of its duties, showing that he is not a fit or proper person to hold the office. An attempt to remove an officer for any cause not affecting his com- petency or fitness would be an excess of power, and equivalent to an arbitrary removal. In the absence of any statutory specification the sufficiency of the cause should be determined with reference to the character of the office, and the qualifications necessary to fill it. Bagg's Case, 11 Coke, 93b; Rex v. Richardson, 1 Burrows, 517-540; State v. Love, 39 N. J. Law, 14; State v. McGarry, 21 Wis. 496; State V. Common Council, 9 Wis. 254; People v. Thompson, 94 N. Y. 451. While the charges need not be stated with the technical nicety or formal exactness required in pleadings in courts, yet they must be specifically stated with substantial certainty. The specifications of the alleged causes should be formulated with such reasonable detail and precision as shall inform the incumbent what dereliction of duty is urged against him. There should be a statement of charges with a specification of facts constituting a sufficient cause for removal, suffi- ciently distinct to apprise the officer of the grounds upon which the charges are based. Andrews v. King, 77 Me. 224 ; People v. Thomp- son, supra; Dill. Mun. Corp. § 255. The sufficiency and reasonable- ness of the cause of removal are questions for the courts. Dill. Mun. Corp. § 252, and cases cited. This has been the settled law ever since Bagg's Case, supra, and we are not aware of any respectable authority to tlie contrary. Of course, cases (many of which are cited by re- spondents) where an officer or body was vested with an absolute power of removal at discretion are not in point. Upon examination of the charges in this case we are clearly of opinion that they are not sufficient in law. Considering them as a REMOVAL 163 whole, they show on their face that they were not formulated in a very judicial frame of mind. They read more like a heated hostile dec- lamation than a calm and deliberate statement of charges with a view to a fair investigation. Many of them are mere glittering generalities, without any statement or specification of facts ; such as, for example, "using their official positions to gratify their personal feelings and prejudices;"' '"that neither ability, impartiality, nor sense of justice characterize their management of one of the most important branches of the city government;" "that the gratification of their personal spites and prejudices is the paramount motive often actuating and controlling them in the supposed discharge of their duties ;" "that they have no just appreciation of the responsibilities that should characterize the discharge of the duties of the important ofiice of fire commissioner," etc. It hardly need be said that such general accusations as these are entirely lacking in any specification of facts to apprise any one of the grounds of the charges which he is called on to meet. Some of the charges, such as that "the reasonable recommendations and requests of the common council are treated with the utmost con- tempt," have no relation whatever to the administration of the office of fire commissioner, and remind us of some of the charges in Bagg's Case. The first part of the fifth charge, viz. failure to make montlily reports to the common council, as required by the charter, was virtual- ly abandoned, no attempt having been made to substantiate it, and hence may be left out of account altogether. The only charges that even attempt to state any specific cause for removal are the fourth and the last part of the fifth. Indeed, these are the only ones which counsel for respondents seriously attempts to support. The fourth relates to the discharge of officers of the fire department without cause, or from improper motives, but is entirely lacking in specifica- tions of either dates or names. As the board of fire commissioners has, under the charter, absolute power to discharge any of the em- ployes or officers of the department at their discretion, and may, in the performance of their duties, have had occasion to exercise this power frcf|uently, so general and indcfim'te a statement is not sufficient to advise them what particular acts are the basis of the charge. The last part of the fifth charge, accusing the relators generally of being "incompetent" and "inefficient," without specifying wherein or in what respect, is also entirely too vague and general. We agree with counsel that "incompetency" anrl "inefficiency" in the discharge of official duty may be good groun^is for removal, and that it may not be necessary to specify in detail particular acts or facts. I'ut these words are so general that they may mean anything or everything which might con- stitute good cause for removal. For example, incompetency might result from physical disability, from mental disability, or from lack of integrity, etc. So, inefficiency might consist of habitual neglect of duty, incapacity to preserve discipline, or of a variety of things. Hence, while it is not required to go into details, yet the charges ought at 1(U OFFICERS, AGENTS, AND EMPLOYES least to advise the officer in what respect he is claimed to be incom- petent or inefficient. Our conclusion is that none of the charges relied on are sufficient in law. This renders it unnecessary to consider the evidence at all. We may say, however, that a perusal of it impresses us with the feel- ing that it furnished no reasonable basis for the action of the council in removing the relators from office. It is perfectly apparent that this whole trouble grew out of a foolish quarrel between the common council and the board of fire commissioners, over the suspension by the latter of a fireman by the name of Twaddle. The proceedings of the common council in the matter are quashed. VI. Personal Liability — Contracts ** LAWRENCE v. TOOTHAKER. (Supreme Court of New Hampshire, 1908. 75 N. H. 148, 71 Atl. 534, 23 L. R. A. [N. S.] 428.) Action by Archibald I. Lawrence against Oliver H. Toothaker and others. Verdict for plaintiff, and case transferred from the superior court on defendants' exception. The evidence tended to show the following facts : The plaintiff is an architect, and the defendants con- stituted the board of education in Berlin at the time of the contract in question. The defendants requested the plaintiff to make plans for a school building to take the place of one which had been burned, and, after some negotiations between the parties, a contract was agreed upon for his employment. Soon afterward the defendants notified the plaintiff to cease w^orking on the plans, as they did not wish to use them. He replied that he should hold them to the contract. He charged his services to the city of Berlin, and understood that he was dealing with the board of education. In a suit against the city on this account he was unsuccessful, upon the ground that the board of education had no authority to bind the city. Both parties acted in good faith in making the contract. Walkkr, J. The evidence is not sufficient to support a finding that at the time the contract was made the defendants intended to bind themselves personally, or that the plaintiff understood they did. No express promise on the part of the defendants was made, and it was not suggested by the plaintiff that the defendants were to be deemed the responsible contracting parties. Nor is there any evidence that the defendants suppressed any material facts relating to their author- 10 For di-scussion of priuciples, see Cooley, Mun. Coi-p. §§ G5, 67. PERSONAL LIABILITY CONTRACTS 165 ization to bind the city. Both parties acted in good faith, upon the assumption that the defendants were authorized to make the contract as representatives of the city; and, in accordance with that under- standing, the plaintiff gave credit to the city. It may be conceded that the defendants, as the board of education, had no authority to contract with the plaintiff for and in behalf of the city, and that the attempted exercise of such authority was futile. But it does not follow that the defendants bound themselves to pay for the plaintiffs services. Ogden v. Raymond, 22 Conn. 379, 384, 58 Am. Dec. 429. The board's want of statutory power to do what it attempted to do was as within the cognizance of the plaintiff as that of the defendants. Richards v. Columbia, 55 N. H. 96, 99; Sprague V. Cornish, 59 X. H. 161. The plaintiff was chargeable with knowl- edge of their official limitations ; and, having voluntarily contracted with them in their official capacity and given credit to the city for the performance of the contract, he is in no position to claim that the de- fendants are personally responsible on the contract, in the absence of an express promise by them to incur that responsibility, unless the law would imply a promise of guaranty that they had the requisite power. But "where all the facts and circumstances surrounding the case are known to both the agent and third party, but there is a mutual mistake as to a matter of law — as the principal's liability or the legal effect of the agent's written authority — the agent cannot be held per- sonally responsible by reason of the mere fact that the principal can- not be held, unless the agent by some apt expression guarantees the contract or assumes it himself." 2 CI. & Sk. Ag. 582b; Jefts v. York, 10 Cush. (Mass.) 392. And this principle of law is equally applicable when public officers, like the defendants, assume to bind the public by their contracts with third parties. Their authority is statutory; and whether their at- tempted exercise of it in a particular case is authorized is ordinarily a question of law, which the other contracting party has ample oppor- tunity to investigate and decide for himself. If for any reason he is unwilling to incur that risk, an express guaranty by the other that he acts within the scope of his authority would be necessary to render the latter liable on the contract. Underhill v. C.ibson, 2 N. II. 352, 9 Am. Dec. 82; Brown v. Rundlett, 15 N. II. 300; Farnani v. Davis, 32 N. H. 302. Cases like Weare v. Gove, 44 N. H. 196, do not con- flict with this result. It was there expressly recognized (page 197 of 44 X. II.) that the agent caimot be held "where the promisee, being fully informed of the facts upon which the assumed authority rests, forms his own juflgmcni, and contracts for and relies upon the en- gagement of the principal alone. In such a case it would be unjust that the agent should be bound becau.se such was not the contract." As the rci)orted evidence negatives the idea that the parties intended that the defendants should he individually liable on the contract, and 1G6 OFFICERS, AGENTS, AND EMPLOYES as there is no evidence that they guaranteed their authority, or were guihy of any fraud upon the plaintiff, the defendants' motion for a verdict should have been granted. Exception sustained. Verdict set aside. All concurred. VII. Personal Liability— Torts *>^ BOUTTE V. EMMER. (Supreme Court of Louisiana, 1891. 43 La. Ann. 980, 9 South. 921, 15 L. K. A. 63.) BrEaux, J. Plaintiff sues to recover $10,000 exemplary damages from the defendant, who is the mayor of the town of New Iberia. On the 24th of December, 1889, the defendant had him arrested and imprisoned from about 5 o'clock in the evening to about 8 o'clock a. m. of the day following. Plaintiff complains of injury, in that he was thus arrested without any process of law, and placed in jail mali- ciously, and without probable cause; that just preceding his arrest the defendant made an assault on him. The plaintiff is a constable. He had arrested two negroes, and had taken them before a magistrate to answer to the charge of fighting and disturbing the peace. Without formal examination into the accusation, they were ordered to be released, and to pay one dollar each to the constable for having made the arrest. He left the office of the justice of the peace with the negroes, intent on collecting the two dollars, and threatening incarceration if the amount was not found. He was with these men some time in the street. His conduct, a witness tes^ tifies, was not orderly. Four witnesses testify that he was at the time under the influence of intoxicants. An officer himself, he should have been sober. The defendant met the plaintiff, and spoke to him, at first remonstratingly, is the testimony of certain witnesses. Soon after the words of each became intemperate. Under an ordinance of the council, the mayor is vested with au- thority to punish disorderly persons by imprisonment for a short time, or the imposition of a fine, or both. In discharging the functions of his office, he has certain discretion. Unless he acts arbitrarily, and beyond the pale of his office, he cannot be made to pay damages. The plaintiff's first grievance, upon which he bases some right of action, is that he was arrested without a warrant. This ground does not commend itself, for a warrant need not issue prior to arresting a person who openly commits a breach of the peace such as plaintiff was charged with having committed, and such as the preponderance 11 For discussion of principles see Cooley, Mun. Corp. §§ 66, 67. PERSONAL LIABILITY — TORTS 167 of evidence sustains with reference to the imprisonment. The peace and good order of the community requires it, and frequently one in- toxicated is only improved by the experience, and restored to a sober condition. The attempt made to sever the defendant, for the purposes of this suit, from his office, and hold him responsible personally, must fail. An officer will not be held responsible personally, unless it be clearly proven that he has acted arbitrarily and in violation of law. The vio- lation and arbitrariness are not proven. Judgment affirmed, at appellant's costs. 108 CONTRACTS CONTRACTS I. Contracting Agencies * JEWELL BELTING CO. v. VILLAGE OE BERTHA. (Supreme Court of Minnesota, 1903. 91 Minn. 9, 97 N. W. 424.) Action by the Jewell Belting Company against the village of Bertha. Brown, J. Action to recover the value of certain fire extinguish- ing apparatus alleged to have been purchased of plaintiff's assignor by defendant, in which, on trial, the court below directed a verdict for defendant, and plaintiil^ appealed from an order denying its alterna- tive motion for judgment notwithstanding the verdict, or for a new trial. The facts are as follows : Defendant is an incorporated village of the state, and on the 9th of January, 1902, one S. S. Smith, doing business as the Minnesota Rubber Company, appeared before its council with a proposition to sell to the village a hand pump engine for extinguishing fires for the sum of $585. The council was desirous of purchasing an apparatus of the kind, and had previously sought terms and prices from manufacturers. After the submission of a proposition by Smith, the council adopted two motions, as follows: "]\Iotion made and seconded that Mr. Smith ship his hand pump engine fire machine subject to approval of village council. Motion carried ; all members voting yes." "Motion made and seconded to authorize the president and recorder to enter into contract with Mr. Smith for the purpose of purchasing hand pump engine and other articles, as per statement at meeting in council room. Motion carried; all members voting yes." This record discloses the only action taken by the council in refer- ence to the purchase of the engine. What occurred in the council room between the passage of the two motions just quoted does not appear, though counsel state that the proposition contained in the first motion was not accepted by Smith. Pursuant to the authority con- tained in the second motion, the president and recorder entered into a formal written contract with Smith by which they contracted, on be- half of the village, to purchase the fire apparatus, agreeing to pay therefor the sum of $585 ; and by this contract the rights of the parties must be determined. The contract so entered into contained a provision that the engine should be subject to test trials satisfactory to the village council be- 1 For discussion of principles, see Cooley, Mun. Corp. § 72. CONTRACTING AGENCIES 169 fore acceptance. Thereafter Smith, acting under the contract, shipped the engine to the village by railroad ; but the village council refused, and at all times since have refused, to accept or receive the same. Smith, subsequent to shipping, and after the arrival of the engine at Bertha, appeared and offered to test the same in the presence of the council, but the latter refused to take part in it or carry out the con- tract made by the president and recorder. Smith afterward assigned his claim under the contract to the plaintiff in this action. Several questions are discussed in the briefs of counsel, but, as we view it, the case narrows down to one proposition, namely, whether the village council could delegate authority to the president and re- corder to enter into a contract on behalf of the municipality for the purchase of the engine. If such authority could be so delegated, plain- tiff is entitled to recover; otherwise the trial court was justified in directing a verdict for defendant, for it is not shown or claimed that the contract was made or ever ratified by the village council. The village council, under our statutes, is the governing body of the mu- nicipality, charged with the management of its affairs, legislative and administrative, and alone clothed with power and authority to enter into such contracts as are deemed necessary for the public welfare. The authorities very generally hold that such a body cannot in any case delegate to a member or committee thereof functions or preroga- tives of a legislative or administrative character, or involving the exer- cise of judgment and discretion. Scollay v. Butte Co., 67 Cal. 249, 7 Pac. 661 ; House v. Los Angeles Co.,' 104 Cal. 73, 37 Pac. 796 ; Knight V. Eureka, 123 Cal. 192, 55 Pac. 768; Walsh v. Denver, 11 Colo. App. 523, 53 Pac. 458; Dillard v. Webb, 55 Ala. 468; Blair v. Waco, 75 Fed. 800, 21 C. C. A. 517; Thomson v. Boonville, 61 Mo. 282; Matthews v. City of Alexandria, 68 Mo. 115, 30 Am. Rep. 776; Attorney General v. Lowell, 67 N. H. 198, 38 Atl. 270 ; Elyria Gas Co. v. Elyria, 57 Ohio St. 374, 49 N. E. 335 ; Foster v. Cape May, 60 N. J. Law, 78, 36 Atl. 10S9; Phelps v. N. Y., 112 N. Y. 216, 19 N. E. 408, 2 L. R. A. 626. Merely ministerial functions may be delegated to an officer or com- mittee, llarcourt v. Common Council, 62 N. J. Law, 158. 40 Atl. 690. But such power as rcf|uires the exercise of judgment and discretion must be performed by the body itself. Ministerial functions are those that are absolute, fixed, and certain, in the performance of which the board or officer exercises no discretion whatever. Performance may be compelled by mandamus or other api)ropriate proceedings, but pow- ers and duties involving an exercise of judgment and discretion can- not be so compelled. This principle was ap])lied by this court in Min- neapolis Gaslight Co. v. Minneapolis, 36 Minn. 159, 30 N. W. 450. hi that case it api)cared that the charter of the city of Minneapolis au- thorized the city council, by ordinance, to erect lamps and provide for lighting the city, and to create, alter, and extend lighting districts. 170 CONTRACTS It was held that the power so conferred required the exercise of judg- ment and discretion, and could not be delegated to a committee of the council, either in respect to establishing new lamps or discontinuing those already established. The reason for this rule is found in the fact that members of the council are chosen by the people to represent the municipality, charged with a public trust and the faithful perform- ance of their duties; and the public is entitled to the judgment and discretion, in all matters where such elements enter into transactions on behalf of the municipality, of each member of the body upon which authority to act is conferred. In the case at bar the purchase of a fire engine to aid in the extin- guishment of fires occurring in the village, incurring an indebtedness in such purchase, and fixing the time and terms of payment, involved the exercise of the sound judgment and discretion of the village coun- cil ; and, within the authorities cited, the power to so contract could not be delegated to the president and recorder. It follows, therefore, that the trial court was right in directing a verdict for defendant. There is no controversy about the facts. They are undisputed, and substantially as we have outlined above. Of the want of authority on the part of the council to authorize the president and recorder to enter into the contract, Smith was required to take notice. All persons con- tracting with municipal corporations are conclusively presumed to know the extent of authority possessed by the officers with whom they are dealing. 20 Am, & Eng. Ency. Law (2d Ed.) 1183; Newbery v. Fox, 37 Alinn. 141, 33 N. W. 333, 5 Am. St. Rep. 830. \\'hile ordinarily the acts of public officers are presumed to be au- thorized by law, want of authority affirmatively appears in this case, and the presumption is overcome and does not apply. Order affirmed. II. Mode of Contracting 2 BRODERICK v. CITY OF ST. PAUL. (Supreme Court of Minnesota, 1903. 90 Minn. 443, 97 N. W. 118.) Action by John F. Broderick against the city of St. Paul and oth- ers. Judgment for defendants, and plaintiff appeals. Lewis, J.^ This action was brought for the purpose of enjoining the city St. Paul and certain of its officers, and respondent the Cleve- land Vapor Light Company, from entering into and carrying into effect the terms of a certain contract for lighting a part of the city streets. * * * 2 For discussion of principles, see Cooley, Mun. Corp. § 73. 3 Part of tliis opinion and all of the dissenting opinion of Brown, J., are omitterivate corporations, has almost lost its meaning. The undermining 102 CONTRACTS of the foundation upon which it has rested from its inception has pro- ceeded sinuihaneously from different directions until the doctrine itself seems almost ready to fall of its own weight. The original rule that an ultra vires contract was illegal and void could give rise to no rights, nor be validated by any performance or application of the law of estoppel, has practically been erased from the law, for those courts which do not contradict it directly do so indirectly by their manner of applying it. An appeal to the public interest that private corporations should be restricted in the making of contracts to the scope of their granted powers is growing more and more ineffectual where the rights of persons innocently entering into ultra vires contracts with such cor- porations intervene." With respect to contracts by municipal corporations, one current opinion is that: "The contract of corporations, whether public or private, stand on the same footing with contracts of natural persons, and depend on the same circumstances for their validity and effect. The doctrine of ratification and estoppel is as applicable tc corpora- tions as to individuals." Argenti v. City of San Francisco, 16 Cal. 256, 277. We incline, however, to accept the views of Judge Dillon on the subject, thus summarized by counsel for the defendants: "The general principle of law is settled beyond controversy that the agents, officers, or even the city council of municipal corporations cannot bind the corporation by any contract which is beyond the scope of its pow- gj- * * * 'j^j^jg history of the workings of municipal bodies has demonstrated the salutary nature of this proposition, and it is the part of true wisdom to keep the corporate wings clipped down to the lawful standard. It results from this doctrine that contracts not au- thorized by the charter or other legislative act — that is, not within the scope of the powers of the corporation under any circumstances — are void." Dillon, Mun. Corp. (4th Ed,) 457 (381). And see Mayor v. Ray, 19 Wall. 468, 22 L. Ed. 164; Newbery v. Fox, 37 Minn. 141, 33 N. W. 333, 5 Am. St. Rep. 830. There is, however, an unmistakable and proper tendency to apply to both classes of corporations the prin- ciple that "the doctrine of ultra vires, when invoked for or against a corporation, should not be allowed to prevail where it would defeat the ends of justice or work a legal wrong." Ohio R. R. Co. v. Mc- Carthy, 96 U. S. 258, 24 L. Ed. 693. 2. It is to be kept in mind that the term "ultra vires" is used in many different senses. 8 Words & Phrases, 7165, 7166. Two differ- ent uses of the term were pointed out in Minn. Thresher Mfg. Co. v. Langdon, 44 Minn. 37, 46 N. W. 310, three in Bissell v. M., etc., R. R. Co., 22 N. Y. 258, and four in Green's Brice's Ultra Vires, 33-35. For present purposes, it suffices to refer especially to two different meanings. The first of these describes a contract which is not within the scope of the powers of a corporation to make under any circum- stances, or for any purposes; for example: "Where a corporation ULTRA VIRES CONTRACTS 193 authorized only to build a railroad engages in banking." Mitchell, J., in Minn. Thresher Co. v. Langdon, 44 Minn. 41, 46 N. W. 312. "Where the Legislature, for instance, having authorized you to make a railway, you cannot go and make a harbor." Kindersley, V. C, in Earl of Shrewsbury v. North Staffordshire Ry. Co., 35 L. J. Ch. 156, 172. So, in the cases to which defendant refers us, it was held to be wholly outside of a city's power to "surrender control over streets" (State V. ^linn. Transf. Ry. Co., 80 Minn. 108, 83 N. W. 32, 50 L. R. A. 656) ; to pay money to aid in building a shoe factory within its limits (City v. Hednian, 53 Minn. 525, 55 N. W. 7Z7) ; to aid in the construction of a dam for the purpose of improving a private water power (Coates v. Campbell, 37 Minn. 498, 35 N. W. 366); to con- struct a building for the use of another municipality or other third person (Borough v. Sibley, 28 Minn. 515, 11 N. W. 91; Village v. County of McLeod, 40 Minn. 44, 41 N. W. 239) ; or without authority to buy real estate (Bazille v. Commissioners, 71 Minn. 198, 73 N. W. 845). For further illustrations, see Ingersoll on Public Corporations, 292, 293. The second of these meanings refers to contracts of a class which the corporation had a right to execute, but with respect to which there has been some irregularity or defect in the actual exercise of the power "in some particular or through some undisclosed circumstance" affecting the individual contract in issue. The former class is ultra vires in the primary, and really only proper use of the term, while in the second it is merely secondary. Mitchell, J., in Minn. Thresher Mfg. Co. V. Langdon, 44 Minn. Z7 , 46 N. W. 310. That is to say, an ultra vires municipal contract, in its true sense, is a contract relat- ing to matters wholly outside the charter powers of a corporation. 2 Dillon, Mun. Corp. §§ 935, 936. In Miners' Ditch Co. v. Zellerbach, 37 Cal. 543, 578, 99 Am. Dec. 30, Sawyer, C. J., justly remarked: "These distinctions must be constantly borne in mind when considering a question arising out of dealings with a corporation. When an act is ultra vires in the first sense mentioned, it is generally, if not always, void in toto, and the corporation may avail itself of the plea. But, when it is ultra vires in the second sense, the right of the corporation to avail itself of the pica will depend ui)on the circinnstanccs of the case." And see City of Valjjaraiso v. Water Co., 30 Ind. App. 316, 65 N. R. 1063 ; Rogers v. City of Omaha, 76 Nel). 187, 107 N. W. 214; 5 Thompson, Corps. §§ 5975, 5976, 5977; Dillon, Mun. Corp. § 936; 2 Current Law, 977. 3. The iiu|uiry naturally arises as to the sense in which the present contract is ultra vires. In the first place, it is ultra vires in the sec- ondary and restricted sense only. The city had the undoubted charter power to contract for the construction of a sewer. So to do was strictly within the object of the creation of the corporation. That was CooLEY Cases Mun.C. — 13 1!)4 CONTRACTS a familiar and necessary part of its function in government. The contract was not of the class of contracts which are void for want of legal capacity on the part of the city to make them. On the con- trary, it was such a one as the city could properly have made although it may be admitted that this particular contract it ought not to have made. It is not at all such a contract as is prohibited by statute or public morals, any more than by its subject-matter. If the officers executing it had been regularly authorized, and if consent of the owners of all premises through which it was to run had been obtained, it would unquestionably have been a valid contract. In the second place, the present contract is ultra vires, if at all, as to a small part only. It is convenient to postpone the consideration of irregularities in the letting of the contract, and to here refer only to the failure of the city to condemn. So far as that failure is addressed to private property, which the city could have condemned, the contro- versy is disposed of by the ruling in Keough v. St. Paul, 66 Minn. 114, 68 N. W. 843. It was there held that the contract for grading a street is not ultra vires, because the council has omitted to establish gradient lines, nor because condemnation proceedings have not been consummated. In the last analysis, however, defendants rely on the fact that the outlet of the sewer, to the extent of 85 feet, was owned by the government, and that the contract was beyond the power of the city, because it involved the commission of a trespass. In this con- nection we are cited to Sang v. City of Duluth, 58 Minn. 82, 59 N. W. 878. It was there held that a contractor could not recover loss of profits because the city had not acquired the right of way across the property of a railway company for a street which he undertook to grade, pave, and otherwise improve. As to such a part of the contract, it was held to be ultra vires. It was said in that case : "Plaintiff does not claim to recover for any work so performed, but claims loss of profits for being prevented from performing on the railroad right of way and loss by depreciation of materials purchased for that part of the work." That case is obviously not at all inconsistent with authorities holding that "an entire contract is not invalid because part thereof is ultra vires. * * * " ^ court should not destroy a con- tract made by parties further than some good reason requires. Elliott, Mun. Corps. § 291. And see 111. Trust & Savings Bank v. Arkansas- City, 76 Fed. 271, 22 C. C. A. 171, 34 L. R. A. 518; Spier v. Kala- mazoo, 138 Mich. 652, 101 N. W. 846, 2 Curr. Law, 977, notes 82, 83. The decision most nearly similar to the case at bar in this connection which we have been able to find is Coit v. City of Grand Rapids, 115 Mich. 493, 71 N. W. 811. This is the rule. That a contract void as to an inconsiderable or insignificant part is as to the rest valid is only one of its applications. In the third place, the features of this contract objected to remain ultra vires in this restricted sense and to this limited extent, only sa ULTBA VIRES CONTRACTS 195 far as is possible with respect to an executed contract. The learned trial judge in his memorandum said: "The city paid large sums of money upon this contract to the defendant Kirkland as the work progressed. One of these sureties received one of these payments. Neither of Kirkland's sureties can lawfully plead that the contract between the city and Kirkland is ultra vires because so far as either of them is interested, and so far as concerns this case, the contract has been fully performed. Where an ultra vires contract has been fully performed by both parties, it is justly held that it is no longer assail- able by either. Note In re ^Mutual Ins. Co., 70 Am. St. Rep. 166." And see 2 Alorawetz, P. C. § 689 ; Hunt v. Hauser Malting Co., 90 Minn. 282, 96 N. W. 85, collecting cases at 285. The learned trial judge proceeds : "The above treats of contracts with private corporations, but it is applicable in this case where the rights of the municipal corporation are not involved." In the leading case of Hitchcock v. Galveston, 96 U. S. 341, 24 L. Ed. 659, Mr. Jus- tice Strong approves of the following rule laid down in State Board v. Street Railway Co., 47 Ind. 407, 17 Am. Rep. 702, in an action against a municipal corporation : "Although there may be a defect of power in a corporation to make a contract, yet, if the 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 a party relying on the promise and in execution of the contract to expend money and per- form his part thereof, the corporation is liable on the contract." This was followed and approved in City of East St. Louis v. Gas Light Co., 98 111. 415, 38 Am. Rep. 97. In Argenti v. City of San Fran- cisco, 16 Cal. 256, after elaborate examination of the authorities, re- covery on an executed contract with the city was allowed, although there was no evidence that the officer who signed them was expressly authorized. To the same effect are Rogers v. City of Omaha, 76 Neb. 187, 107 N. W. 214; Uodewig v. Port Huron, 141 Mich. 564, 104 N. W. 769; Lines v. Village Otego (Sup.) 91 N. Y. Supp. 785; Wilkins v. Mayor, 30 N. Y. Sujjp. 424, 9 Misc. Rep. 610; City of Tyler v. Jester, 97 Tex. 344, 78 S. W. 1058; City of Valparaiso v. Valparaiso City Water Co., 30 Ind. App. 316, 65 N. E. 1063 (a particularly wcll- considcrcd case) ; City of Fergus Falls v. Hotel Co., 80 Minn. 165, 83 N. W. 54, 50 L. R. A. 170, 81 Am. St. Rep. 249. We have referred to these considerations to make plain the re- stricted sense and extent of the ultra vires aspect of this contract and its executed character, as well as the trend of judicial decision con- cerning the legal pr)sition of plaintiff's contract. The facts that as to a small portion of a contract with a municipality only it was ul- tra vires in any sense, and that it has been substantially executed by the parties basing rights of actidu upon it, are strong, if not con- clusive, considerations for refusing to hold it al)solutcIy void. It is, however, unnecessary, and because of the course the argument lOG CONTRACTS has taken in this court, undesirable, to determine whether the con- tract was valid in the sense that the contractor could have recov- ered on it from the city. * * * Affirmed. VI. Same — Ratification and Estoppel " CITY OF FERGUS FALLS v. FERGUS FALLS HOTEL CO. (Supreme Court of Minnesota, 1900. 80 Minn. 165, 83 N, W. 54, 50 L. R. A. 170, 81 Am. St. Rep. 249.) Lewis, J. Action by respondent city to foreclose a mortgage upon certain hotel property in the city of Fergus Falls. Defense, that the city cannot maintain an action to enforce securities taken on a loan, the same being void, against public policy, and ultra vires. The action was tried by the court without a jury, and resulted in an order for judgment in favor of respondent. Defendant appeals from an order denying its motion for a new trial. The trial court found that in 1890 one Bell and wife executed and delivered to the First National Bank of Fergus Falls their prom- issory note for $10,000, due five years from date, with interest at 2 per cent., and at the same time, to secure the note, executed and delivered a mortgage upon certain premises in Fergus Falls known as the "Grand Hotel Property." This mortgage was duly recorded, and contained the usual covenants for foreclosure upon default of payment. The amount of the consideration of the mortgage — $10,- 000 — was paid to Bell by certain officers of the city of Fergus Falls out of the city funds as a loan to him from the city. The bank had no interest in the mortgage, but simply held it in trust for the city, and afterwards, in 1896, executed and delivered to the city a declara- tion of trust to that effect. In 1898 the bank duly assigned the mort- gage to the city, which assignment was duly recorded. After exe- cuting the mortgage, in 1891, Bell and wife deeded the property to one George Duryee, and finally the premises were conveyed to de- fendant in 1892. On the question of notice of the mortgage by defendant when it purchased the property the court found as follows: "That said de- fendant, the Fergus Falls Hotel Company, at the time of the making and delivery of said last-described deed, and at all times thereafter, had actual notice and knowledge of the existence of said mortgage, and at all times prior to the beginning of this action, in all its deal- ings with plaintiff in reference thereto, said defendant recognized and admitted said mortgage as a valid and subsisting lien upon the prop- 12 For discu-ssion of principles, see Cooley, Mun. Corp. § 78. ULTRA VIEE9 CONTRACTS — RATIFICATION AND ESTOPPEL 197 erty described ; that said mortgage was fully considered and taken into account by said defendant in its negotiations for the purchase of said premises and in arriving at the purchase price to be paid therefor." The court further found that the property was sold for the 1893, 1894, and 1895 taxes, and that respondent was forced to pay $1,847 to protect the property from loss under tax judgments; that the taxes of 1897 were not paid, and the property was sold for the same in May, 1899. It is further found that on the 30th day of April, 1895, the principal was extended for the period of five years, at request of appellant. The interest was paid by appellant up to the 23d day of September, 1896. As conclusions of law : That defendant was indebted to the plain- tiff in the full amount of the principal, interest, and taxes paid, and that the property be sold to satisfy the same. 1. Section 31, c. 5, of the Special Laws of 1883 provides: "No money shall be paid out of the city treasury, except for principal or interest on bonds, unless such payments shall be authorized by a vote of the city council, and shall then be drawn out only upon or- ders signed by the mayor and countersigned by the city clerk, which orders shall specify the purpose for which they are drawn out, and the fund out of which they are payable and the name of the person in whose favor they may be drawn, and may be made payable to the order of such person." The order upon which the city treasurer paid out the money (Exhibit 5) is as follows: "Fergus Falls, Minn., Sept. 23, 1890. Please pay to C. D. Wright ten thousand dollars out of the permanent fund belonging to the city of Fergus Falls. E. Shaver, Acting Mayor. W'm. Hocfling, Clerk pro tern. To F. J. Evans, City Treasurer. $10,000." Defendant objected to the intro- duction of this order in evidence upon the ground that it was void on its face, not showing the purpose for which the order was drawn. The objection was overruled, and the order received. This ruling is assigned as error. Counsel for the appellant take the position that the order was void for the reason assigned, that it would afford the city treasurer no protection if he paid out the city's money on such an order, and for that reason the city cannot predicate any rights upon it. Admitting that the officials of the city council issued a void order, and would be liable for so doing, and that the city treasurer paid out the money without authority, and that the order would not protect him, this only goes to show that the money was obtained from the city by an indi- rect and illegal manner, through the acts of its officers. The main issue to be determined in this case was whether the city had loaned the money, and could call into action the powers of the courts to enforce the collection of the debt. It is immaterial whether the money was obtained upon an order void upon its face or regular upon its face. Neither is it material whether the officers were acting in good 11)8 CONTRACTS faith, as, no doubt, they were. The only purpose of introducing the order was to show that the money was paid out of the city treasury, and it was properly received. 2. Appellant claims that there was no evidence to justify the find- ing that the city ever loaned the money to Bell, conceding that he received the benefit of it. The argument is based upon two proposi- tions: (1) That, the order being void, the city treasurer had no right to pay it, and charge the amount to the city. The act being void, no money of the city passed. (2) That the money coming to the treasurer was deposited in the banks in open account, subject to the treasurer's check; that the city had no money on deposit, but had parted with its title to the banks, upon the theory that the bank acquired title to the money deposited on open account. This may be technically true as a result of the method of bookkeeping; never- theless, by means of the order, and a check drawn on the city funds in the bank, $10,000 of the city's money was drawn out, and paid over to the use of Bell. This was the ultimate fact found by the court, and the evidence is conclusive. 3. Again, it is urged that the city, having no power to make the loan, cannot evoke the powers of the courts in collecting it. The city certainly had no authority to loan this money. The act was not within its charter powers ; but it does not follow that the city can- not recover it. It is true that the doctrine of ultra vires is, and ought to be, rigidly enforced in favor of a municipal corporation in order to protect its taxpayers from being plundered by the unlawful acts of its officers. But when, as in this case, a municipal corporation is seeking to have restored to its treasury money taken therefrom under color of an ultra vires contract, it does not lie in the mouth of the beneficiary of the wrongful act, or of his assignee with notice, to say that a lien securing the payment or return of the money is void because the money was obtained by virtue of a void contract; oth- erwise, the wrongdoer would be permitted to take advantage of his own wrong to the injury of innocent taxpayers. There can be no question about the city's power to collect from Bell if he were alive and solvent, under the decision in City of Chaska v. Hedman, 53 Minn. 525, 55 N. W. Th7 , and there is no distinction in principle between that case and this. That decision rests upon the theory that the con- tract on the part of the city by which it paid $500 for the establish- ment of a shoe factory was void, being beyond its powers. The corporation, as such, had no power to make it, and its officers had no power to bind it. The money having been paid without authority, its payment was not a corporate act, and the corporation could recover the money. The principle applied in that case is not changed by the efifect of Cr. Code, §§ 136, 369, 370. Those sections apply to public officers, but can have no application to the city as such. The general rule that the law leaves the parties to an illegal transaction where it finds them IMPLIED PROMISE 199 has no application. The officers of the city are not the city. The city cannot be bound by the unlawful acts of its officers in paying out its money. And, if the city may recover the money from those who received it, why may it not foreclose the mortgage, it being impossible to secure the money, or any part of it, in any other way? There is no difference in principle between the two remedies. The city is only recovering what it can of the funds illegally taken from its treas- ury. The defendant cannot complain. It bought the property with no- tice of the city's claim and lien. It is in no worse position than if the loan had been made by a private party. And it would be inequitable to permit it to benefit by the illegal act of the city officials under such circumstances. This right of a municipal corporation to enforce its claims under such circumstances has been recognized or applied in the following cases: Deering v. Peterson, 75 Minn. 118, 17 N. W. 568; Bank v. Matthews, 98 U. S. 621, 25 L. Ed. 188; City of Buf- falo V. Balcom, 134 N. Y. 532, 32 N. E. 7; Hay v. Railroad Co. (C. C.) 20 Fed. 15. Order affirmed.^^ VII. Implied Promise ^* VILLAGE OF PILLAGER v. HEWITT, (Supreme Court of Minnesota, 1906. 98 Minn. 205, 107 N. W. 815.) Action by the village of Pillager, Cass county, against S. M. Hewitt, as the Hewitt Bridge Company. Judgment for defendant. From an order denying a new trial, plaintiff appeals. Stakt, C. J.^'^ Action to recover from the defendant the sum of $500 and village bonds to the amount of $1,300 paid and delivered by the plaintiff village to the defendant upon an alleged void con- tract for building a bridge for the village by the defendant. * "' * The principal question presented by the record for our considera- tion is whether the conckision of law of the trial court was justified by the facts found, which, briefly slated, are these : The plaintiff' is a village duly organized by virtue of Gen. Laws 1885, p. 148, c. 145. On October 9, 1903, the plaintiff and defendant entered into a writ- ten contract for the erection by the defendant of a combination bridge, according to plans anrl si)ccifications agreed ujion, over the Crow Wing river. The defendant built the bridge in all respects ac- cording to the plans and specifications and completed it April 1, 1904. Shortly thereafter the village council inspected the bridge and ac- I'The (lissrntinp oi)inlon of r.inwn, .7., l.s (iiniltcd. !♦ For (ll.KC'ussloii of principles, see Cooley, Mun. Corp. § 80, IB pjirt of the opinion i.s omitted. 200 CONTRACTS ccpted the same. The plaintiff paid to the defendant during the month of March. 1904, the sum of $500 in money, and delivered to him its bonds in the sum of $1,300 pursuant to the contract for the building of the bridge, but has refused to pay the balance of the con- tract price for building the bridge on the ground that the contract is void. The contract was within the power of the plaintiff under the laws of this state, but was not entered into in the manner and form provided and required by the statutes, but it was entered into privately, and not upon and after advertisements for bids, as is re- quired by law. He, however, fully complied with the contract and the same is an executed contract on his part and has been partially exe- cuted by the plaintiff by the payment of the money and the delivery of the bonds. The contract in question was entered into in good faith, and the price to be paid for the bridge thereunder was fair and reasonable; the profits made by the defendant under the contract were the usual profits on such structures, the bridge was necessary for the village, appropriate to the place, such as was required by the physical conditions, and the village was justified in contracting for and constructing it. It conclusively appears from the evidence that after the acceptance of the bridge it was carried away by a flood. We have, then, a case where the plaintiff, a municipal corporation, was authorized by law to enter into a valid contract for the building of a bridge, and, in form, did so with the defendant, but by reason of its failure to comply with the details required by the statute (Gen. Laws 1885, p. 170, c. 145, § 51), in letting the contract, it was void. It may be conceded that the defendant could not have maintained an action on the contract to recover the contract price for the bridge, although he had fully performed the contract on his part; for upon the grounds of sound public policy the doctrine of ultra vires is ap- plied with greater strictness to municipal than to private corporations. This, however, is an action, in the nature of an action for money had and received, which is based upon equitable principles, to recover back the consideration paid by the plaintiff' to the defendant for building a bridge which was accepted by it, and which fully complied with the terms of the contract. The fact that the bridge was after- wards carried away by a flood is not material, for it was not due to any fault of the defendant or any one else. After the acceptance of the bridge it became public property, which from its nature could not be re- stored to the defendant, and, of necessity, the plaintiff would retain and enjoy the benefits thereof so long as it stood. The defendant in good faith received the money and bonds in payment of the bridge which he had built for the plaintiff. The consideration for such pay- ment was full and fair, and, in equity and good conscience, it ought to have been made by the plaintiff. Such being the case, it would be most inequitable and unconscionable to compel the defendant to return the money and bonds paid to him under the circumstances found by the trial court, and we hold that the plaintiff cannot main- IMPLIED PROMISE 201 tain this action to recover them. Farmer v. City of St. Paul, 65 IMinn. 176, 67 X. W. 990, 33 L. R. A. 199; Brown v. City of Atchison, 39 Kan. 37, 17 Pac. 465, 7 Am. St. Rep. 515. The case of Borough of Henderson v. County of Sibley, 28 Minn. 515, 11 X. W. 91, cited by plaintilPs counsel, is not opposed to this conclusion, for in that case there was a total want of power on the part of the county under any circumstances to enter into the contract which was the sole consideration for the payment of the money which the borough sought by the action to recover back. In this case the plaintiff had the power to make the contract, but it was void, and only so, 'by reason of an irregular exercise of the power by the plain- tiff village, nevertheless the defendant fully performed the contract and the plaintiff' voluntarily made the payment for which it received full consideration. But in the case cited, the county agreed with the borough in consideration of $5,000 paid by it to build a court- house, give to the borough the right to use a portion of the building as a municipal hall, and if the county seat should at any future time be removed from the borough the county should have the option of transferring the courthouse and the land upon which it stood to the borough upon the payment of $3,000, or of refunding to the borough the $5,000 paid. The courthouse was built. There was, however, a total want of powder on the part of the county commissioners to make the contract and the borough received no consideration whatever for the payment of the $5,000, except the supposed but unenforceable executory obligations of the county. The court held that the county having ai)propriated without rendering a consideration therefor and used the money of the borough, an obligation both moral and legal rested upon the county to make restitution. * * * The assignments of error are not sufficient to raise any questions as to the admission of evidence. Order affirmed. Elliott, J., took no part, having heard the case in the district court. 202 IMPllOVEMENTS IMPROVEMENTS I. General and Local Improvements Distinguished* PALMER V. CITY OF DANVILLE. (Supreme Court of Illinois, 1894. 154 111. 156, 38 N. E. 1067.) Petition by the city of Danville for the confirmation of a special tax levied by authority of the city council to pay the cost of provid- ing and putting in sewer and water service pipes in Main street of that city. L. T. Palmer and others objected. There was judgment of confirmation, and the objectors appeal. Carter, j.- * * * it is urged in the objections, among other things, that the several water and sewer service pipes were intended for the use of the individual lot owners, and that the public could have no access to, use of, or interest in them whatever, and that, therefore, they did not constitute a "local improvement," within the meaning of the law. We do not regard this objection as well taken. All of the several water and sewer connections must be considered together, as one entire work, and, when taken in connection with the use of the mains which had already been provided, a local improve- ment especially useful and beneficial to the residents on the contigu- ous property and generally useful and beneficial to the city, was pro- vided for. At least, the city council must have so regarded it in passing the ordinance, and we do not think there was any lack or abuse of power in the respect mentioned. Warren v. City of Chi- cago, 118 111. 329, 11 N. E. 218; Louisville & N. R. Co. v. City of East St. Louis, 134 III. 659, 25 N. E. 962; Citv of Chicago v. Blair, 149 111. 310, 36 N. E. 829, 24 L. R. A. 412, and cases cited. It is also urged that, as the water mains mentioned in the ordi- nance belonged to a private company, the city had no control over them, except by virtue of the police power, and by virtue of rights reserved in granting the license to lay the mains in the street, and that such reserved rights did not include the right in the city to make water connections for private individuals, as a local improvement. It was stipulated in the court below, between the parties, that the water main is maintained, under the ordinances of the city, for the use of the city and its inhabitants; and the question is presented whether the mere fact that this main belongs to a private company, though located in a public street, and maintained for the use of 1 For discussion of principles, see Cooley, Mun. Corp. § 86. 2 Part of the opinion is oniittefl, the statement of facts is rewritten, and all of the concurring opinion of Bailey, J., is omitted. GENERAL AND LOCAL IMPROVEMENTS DISTINGUISHED 203 the city and its inhabitants, under the provisions of an ordinance of the city, renders the ordinance and the proceedings under it in this case void. W'e do not think it does. The ordinance under which the water main was laid and is maintained was not given in evidence, and we must presume, in the absence of any evidence to the contrary, that the city has preserved and guarded its own rights and those of its inhabitants in its contract with the water company. These water pipe connections are a part of the entire improvement, and may be regarded as important in making the sewer and its connections more available and useful than they otherwise would be. In making this improvement so that it would be most useful and beneficial to the public and the property owners, the city had a large discretion, with the proper exercise of which the courts cannot inter- fere. Lightner v. City of Peoria, 150 111. 87, Z7 N. E. 69. It may be conceded that, to make the water-pipe connections available or beneficial, it was the duty of the city council to provide water mains to convey water to them, — in other words, to make pro- vision for a supply of water; otherwise, the connections would be useless, and would not be an improvement at all, of benefit to any one. Hutt v. City of Chicago, 132 111. 352, 23 N. E. 1010. This duty the city has discharged, and doubtless in the manner that seemed best for itself, the property owners interested, and the in- habitants generally ; and whether it should lay the main and furnish the water itself, or hire a private person or corporation to do so, is a question for the city council to decide, and not for the courts. It might be that if the contract with the water company were in the record, and the court could see that its terms and provisions were such as to make the ordinance providing for this improvement op- pressive and unjust, in levying this tax to make connections with the water main which would never be of benefit to the contiguous property, this court would ImM the ordinance invalid; but the rec- ord shows nothing more on this subject than that the water com- pany r)wning the main maintains it. under ordinances giving it such right, for the use of the city and the inhabitants.* * * ♦ PAYNE V. VILLAGE OF SOUTH SPRINGFIELD. (Snpremp Court of Illinois, isno. ici 111. L'sr.. it X. v.. \m,) Procecfling In' the village of South SiJiingficld for the levy of a special tax for the construction of a sewer. From a judgment con- firming the levy made, Edward W. Payne and others, property own- ers, apjical. » The ,^I(l^^l(•nt of connnnatlon wa.s reversed on other Kroiiiids. See Talmer V. Cjly of Danville, post, p. 225. I'Ui IMrUOVEMENTS Wilkin, ].* This is an appeal from a judi^ment of the county court of Sangamon county confirming the levy of a special tax by ap- pellee to paytor constructing sewers in certain of its streets. * * ^^ The ordinance provides that the sewer shall be of vitrified sewer pipe, 30 inches in diameter, across the railroad right of way; and then a single-ring brick sewer, 30 inches inside diameter, along Lo- cust and Sixth streets to the north line of Ash street; from thence north, to Myrtle street, vitrified sewer pipe 15 inches in diameter; and thence, to the northern extremity, 12-inch vitrified sewer pipe; from Ash street across Park block vitrified sewer pipe 20 inches in diameter, to the intersecting line of Seventh street extended; thence vitrified sewer pipe, 15 inches in diameter, to Myrtle street on Sev- enth and Eighth streets ; and from Myrtle street north, pipe 12 inch- es in diameter, — the whole sewer to have necessary manholes and in- lets. Section 4 provides that the cost, through the right of way of the railroad, of street crossings, and of work in and across Park block, shall be paid for by general taxation. Section 5 provides that the remainder of the cost shall be paid by special taxation of lots and land fronting or abutting on the .streets along which said sewer is laid, in proportion to their frontage. Section 6 provides for ap- pointing a committee to make estimates, and section 8 for letting the contract. The committee appointed to make the estimate of the cost of the work made a report to the village board, which was set aside, and the matter referred back to the same committee to make a corrected estimate. It again reported, estimating the cost of the various sizes of pipe and brick work prescribed in the ordinance, per foot, and the whole number of each kind which would be required to com- plete the work, which, with the cost of 24 inlets and one manhole, aggregated $4,237.80, as the "total cost of sewer complete." To this they added the cost of levying, assessing, and collecting, $343.67, making the total estimated cost $4,581.47, which they divided: "To- tal by general taxation, $1,488.40; total amount by special taxa- tion, $3,093.07." This estimate was duly approved by the village board, and the village attorney ordered to file a petition in the coun- ty court for the levying of the special tax. The prayer of that pe- tition was granted, and commissioners were duly appointed to make the assessment. To the assessment roll returned by these commis- sioners appellants filed numerous objections, which upon the hear- ing were each overruled, and the assessment confirmed, and objec- tors perfected this appeal. * * * It is again insisted that the ordinance is invalid because of the objection that it provides for more than one improvement. The most that can be said is that it authorizes the construction of a main sewer with branches. There is certainly less reason for saying this * Part of the opinion is omitted. GENERAL AND LOCAL IMPROVEMENTS DISTINGUISHED 205 is authorizing several improvements than where an ordinance pro- vides for paving two or more streets as one improvement; and or- dinances of this latter kind were sustained by this court in City of Springfield v. Green, 120 111. 269, 11 N. E. 261; County of x\dams v. City of Quincy, 130 111. 566, 22 N. E. 624, 6 L. R. A. 155, and many other cases therein referred to. * * * The objection to the validity of the ordinance most strongly in- sisted upon is that it is unreasonable and oppressive. It cannot be denied that the sewer provided for in the ordinance is a local im- provement, wathin the meaning of section 1, art. 9, c. 24, Rev. St. It is admitted that this court has frequently sustained special assess- ments for the construction of sewers, and clearly that could only have been done on the ground that they were local improvements. Being such, authority to make them by special taxation, as well as by special assessment, is expressly given by section 1, supra. In City of Galesburg v. Searles, 114 'ill. 217, 29 N. E. 686, it was ex- pressly held that an ordinance providing for the construction of a sewer, to be paid for one-half by general tax and one-half by special tax, to be levied on contiguous property, was valid. It is true that ordinance provided that the special tax should be levied in propor- tion to the benefits accruing to the contiguous property, but it was said : "Having determined to raise only one-half the cost of the im- provement by special taxation of contiguous property, it was open to the city council to adopt which one of the various modes of spe- cial taxation of the property they saw fit, — whether according to frontage of the property, value, benefits received, or otherwise." That grading or paving a street, and the laying of sidewalks are local improvements, to pay for which a special tax may be levied upon contiguous property, in proportion to frontage, has been the law of this state since the decision in White v. People. 94 111. 604. That the benefits accruing to property contiguous to a street in which a sewer, like the one contemplated by this ordinance, is laid, differ in kind, and perhaps in degree, from those derived from im- proving the street itself, or laying sidewalks, is admitted ; but the benefits are certainly no less local to the adjacent projierty in the one case than in tlic other. But it is said a special tax Icvieii on the lots of land lying on the street in which the sewer is laid, in pro- portion to frontage, in this case, operates unjustly, and is therefore unreasonable. We said, in White v. People, supra : "Whether or not the special tax exceeds the actual benefit to the lot is not ma- terial. It may be supposed to be based on a presumed c(iuivalcnt. The city council have determined the frontage to be the proper meas- ure of property benefits. That is generally considered as a very rea- sonable measure of benefits in the case of such improvements, and though it does not in fact, in the present case, represent the actual benefits, it is enough, that the city council have deemed it the proper rule to apply." This doctrine has been assailed time and again, but 206 IMPROVEMKNTS never departed from by this court. It was said, in City of Spring- field V. Green, 120 111. 269, 11 N. E. 261, after citing numerous de- cisions: "If it be possible to settle any question by repeated de- cisions, all the same way, the present surely ought to be regarded as finally and irrevocably settled." And in the late case of Chicago & A. R." Co. V. City of Joliet, 153 111. 649, 39 N. E. 1077, it was re- announced, with a citation of numerous later decisions to the same eflfect. Counsel seem to understand that the cases of City of Bloomington V. Chicago & A. R. Co., 134 111. 451, 26 N. E. 366, and City of Bloomington v. Latham, 142 111. 462, 32 N. E. 506, 18 L. R. A. 487, are to the contrary. This is a misconception of those cases. In each of them the ordinance before the court showed upon its face that the property sought to be taxed was not only not benefited by the improvement, but actually damaged thereby. There the question was not whether the tax exceeded the benefits, but whether a special tax could be legally levied at all ; it appearing that no benefits what- ever could possibly accrue to it. Here it is not pretended that the property of objectors will not be benefited by the sewer, nor is it claimed that the improvement is not one proper to be made. The sole objection is that, by adopting the system of levying the special tax by frontage instead of according to benefits to be estimated by commissioners, injustice to property holders has been done, and, as we have seen, that question was not open to consideration in the county court, nor is it subject to review here. We do not think the position that the ordinance is invalid, because it does not pro- vide for the levying of a special tax upon the railroad right of way is tenable. The railroad right of way is not, in any proper sense, contiguous to the sewer, which simply passes through it under- ground.^ * * * II. Power to Make or Aid * CITY OF RALEIGH v. PEACE. (Supreme Court of North Carolina, 1892. 110 N. C. 32, 14 S. E. 521, 17 L. R. A. 330.) See post, p. 218, for a report of the case. 5 The judgment of confirmation was reversed on other grounds. For discussion of principles, see Cooley, Muu. Corp. § 87. PEELIMINARY PEOCEEDINQS B07 III. Preliminary Proceedings "^ BUCKLEY V. CITY OF TACOAIA. (Supreme Court of Washington, 1894. 9 Wash. 253, 37 Pac. 441.) Action by J. M. Buckley and by Robert Wingate and others against the city of Tacoma and others to set aside assessments for local im- provements. From judgments for defendants, plaintills appeal. Stiles, J.^ The enabling act for cities of the first class (Gen. St. § 520) provides that any such city framing a charter for its own government shall have power (subdivision 10) "to provide for making local improvements, and to levy and collect special assessments on property benefited thereby, and for paying for the same or any por- tion thereof" ; (subdivision 13) "to determine what work shall be done or improvements made at the expense, in whole or in part, of the owners of the adjoining, contiguous, or proximate property, or others specially benefited thereby, and to provide for the manner of making and collecting assessments therefor." Section 52 of the charter of Tacoma begins thus : "The city government of Tacoma shall have powers, by ordinance and not otherwise," repeating the language of the statute, with the exception of the last clause of subdivision 13. for which there is substituted : "Provided the manner of making and collecting assessments therefor shall be as prescribed in this char- ter." But when the reader of the charter gets to article 12, which is a complete code of street improvement and assessment law, lie finds that not an ordinance, but a resolution, is required. Appellants make a strong point of this, and insist that anything less than an ordinance renders the whole proceedings leading up to a street assessment void. But the learned judge who heard tlic case below held that the specific provisions of the article mentioned must govern the general ones of section 52, and we quite agree with his conclusion. Although the enabling act conferred the i)owcr, it ut the judgment of the commissioners is that the benefits laid by them were special bene- fits, laid according to benefits bestowed, and not in excess thereof. There is no evidence that in laying tin- benelits, so far as there were benefits, upon the frontage, the commissioners did not conform to the principle of peculiar benefits. The princii)Ie of frontage assess- ment is not necessarily wrong. If that mode properly distributes the benefits among the owners of i)roperty benefited, there can be no objection to its use. Jersey City v. Iloweth, 30 N. J. Law, 529: Pudney v. Village of Passaic, 37 N. J. Law. 65. The commission- ers assessed all the lands which, in their judgment, were benefited. This judgment has not been successfully assailed by the evidence or facts of the case. Hunt v. Mayor, etc., of Railway, 39 N. J. Law, 646. 218 IMPROVEMENTS The last reason to be discussed — the first among the reasons of the prosecutors — as an objection to this assessment is that "the said assessment upon the lands of the prosecutors for the said im- provement is largely in excess of all benefits the said lands will de- rive from said improvement," and this includes a consideration of the contention of the prosecutors that a very large portion of this cost and expense should have been borne by the borough at large. * * * 'pi^ie report of the commissioners is before us, and the rule of law is clear that upon these points their judgment cannot be interfered with, unless the force of the circumstances and evi- dence convinces us that it is wrong, and that an injustice has been done. The rule is well established that the assessments for ben- efits for street improvements, where the commissioners have been over the ground, and examined the premises, and made their report of estimates according to the principles prescribed in the charter, will not be set aside upon conflicting evidence of the justice or suf- ficiency of said assessment. It must clearly appear that injustice has been done before an assessment will be set aside upon all the facts. This is the rule, notwithstanding the statute which author- izes the court to determine disputed questions of fact as well as law. Jellifif V. Newark, 48 N. J. Law, 101, 2 Atl. 627; Hegeman v. City of Passaic, 51 N. J. Law, 113, 16 Atl. 62. * * *^^ CITY OF RALEIGH v. PEACE. (Supreme Court of North Carolina, 1892. 110 N. 0. 32, 14 S. E. 521, 17 L. R. A. 330.) Action by the city of Raleigh against J. A. Peace to recover a special assessment. Judgment for plaintiff. Defendant appeals. She;phe;rd, J.^- While we are of the opinion, for the reasons hereinafter stated, that the particular judgment rendered in this action cannot be sustained, yet, as the validity of the ordinance un- der which the assessment is made is drawn in question, and as it is of great importance that it should be passed upon by this court, we deem it our duty to consider this and such other points that are presented in the record as may be necessary to an intelligent dis- position of the present and perhaps other cases which may arise upon the subject. 1. The authority of the legislature, either directly or through its local instrumentalities, to exercise the taxing power in the form of local or special assessments, has been so firmly established by judi- 11 See, also, Payne v. Village of South Springfield, ante, p. 203. 12 Part of this opinion and all of the dissenting opinion of Merrimon, J.. are omitted. SPECIAL ASSESSMENTS 210 cial decision in this and other states of the Union that it can hardly, at this late day, be considered an open question ; but, as it seems to be controverted by the argument of counsel, it may not be im- proper to state in a general way the principle upon which it is founded, as well as to refer to some of the multitude of authorities in its support. Judge Cooley, in his work on Taxation (page 606), says that special assessments "are made upon the assumption that a portion of the community is to be specially and peculiarly benefited, in the enhancement of the value of property peculiarly situated, as re- gards a contemplated expenditure of public funds ; and, in addition to the general levy, they demand that special contributions, in con- sideration of the special benefit, shall be made by the persons re- ceiving it." "The rationale of the system," says Mr. Burroughs, "is that the purpose is a public one which justifies the levy of a tax, but the benefit of the improvement is not only local, but also specific, bene- fiting particularized property ; and therefore the tax may be levied on this property which receives a benefit over and above other property in the state. * * * An assessment for improvements is not considered as a burden, but as an equivalent or compensation for the enhanced value which the property derives from the im- provement." Burroughs, Tax'n, 460. Judge Dillon (2 Dill. Mun. Corp. § 752n) quotes with entire ap- proval the language of Slidell, C. J., in Municipality No. 2 v. Dunn, 10 La. Ann. 17. The chief justice says: "I must repeat my convic- tion that the system of paying for local improvements wholly out of the general treasury is inequitable, and will result in great ex- travagance, abuse, and injustice. I think the system of making par- ticular localities, which are specially benefited, bear a special por- tion of the burden, is safer, and more just to the citizens at large, by whose united contributions the city treasury is supplied. What is taken out of the treasury is out of the pockets of all the proprie- tors." Speaking of special assessments, the supreme court ot Missouri. in Lockwood v. St. Louis, 24 Mo. 20. said that "their intrinsic jus- tice strikes every one. If an improvement is to be made, the bene- fit of which is local, it is but just that the property benelited should bear the burden. While the few ought not to be taxed for the ben- efit of the whole, the whole ought not to be taxed for the few. * * * General taxation for a mere local |)uri)ose is unjust. It burrlcns those who are not benefited, and benefits those who arc exempt from the burden." These assessments are not to be confoundrd with thr exercise ot the right of eminent domain, (Cooley. Const. Lim. *498; 2 Dill. Mun. Corp. § 7.38; Lewis, Em. Dom. § 4;) and it is also to be ob- served that while they arc taxes in a general sense, in that the au- -20 IMPROVEMENTS thority to levy them must be derived from the legislature, they are nevertheless not to be considered as taxes falling within the re- straints imposed by article 5, § 3, of the constitution, although the principle of uniformity governs both. Shuford v. Commission- ers, 86 N. C. 552; Cain v. Commissioners, 86 N. C. 8; Busbce v. Commissioners, 93 N. C. 143; Cooley, Const. Lim. *498; 2 Dill. Alun. Corp. § 755 et seq. The principle deducible from the foregoing quotations finds a striking illustration in the facts of the present case. The district improved by the pavement embraces only a part of one street ; and, while the improvement may add very greatly to the convenience and comfort of all of the citizens, it at the same time confers upon the abutting real property an enhanced pecuniary value, out of all proportion to the benefits inuring to the public at large. Would it be just that all should be taxed alike, and that the owner of property in a remote part of the city be compelled to contribute as much to- wards the particular improvement as those whose lands are thus peculiarly benefited? This would savor very much of the "forced contributions" of the olden time, which are so generally denounced as obnoxious to the principles of free government; and the bare statement of the proposition shocks all sense of justice, and furnish- es its own refutation. It is, therefore, but pre-eminently just, as well as the duty of the lawmaking power, to provide for an equita- ble adjustment of such burdens in proportion to the benefits con- ferred ; and it is for the very purpose, as we have seen, of accom- plishing this end, and of preventing so great a perversion of the taxing power, that these local or special assessments are almost uni- versally resorted to. It is true that the power to levy such assess- ments is sometimes abused, and that some of the methods adopted have been judicially condemned, but the existence of the power it- self is as well established as it is possible by judicial decision to es- tablish any legal principle whatever. Wilmington v. Yopp, 71 N. C. 76; Cain v. Commissioners, supra; Busbee v. Commissioners, supra; 2 Dill. Mun. Corp. § 761; Cooley, Const. Lim. 506; 1 Hare, Amer. Const. Law, 301 ; Elliott, Roads & S. 370. 2. We will now consider whether the power of the legislature was properly exercised in the case before us. It is a general rule, everywhere conceded, that the discretion of the legislature in levy- ing taxes, when exercised within constitutional limits, is conclu- sive; but in respect to special assessments the principle is ques- tioned, and it is urged that these not being strictly taxes, and not subject as such to the restraints imposed by the constitution, but being founded solely, as some authors say, upon the principle of betterments of the property to the extent of the improvement, the courts should not surrender the power to review an arbitrary deci- sion of the legislature, either as to the necessity for, or the benefi- SPECIAL ASSESSMENTS 221 cial character of, a particular improvement, or the manner in which the benefits are to be ascertained and assessed. That the judicial power has been successfully invoked in some instances will appear from the cases of Seely v. Pittsburgh, 82 Pa. 3(jO, 22 Am. Rep. 700; Washington Avenue, 69 Pa. 352, 8 Am. Rep. 255; and other deci- sions cited in the notes to section 75Z of volume 2 of Dillon on Mu- nicipal Corporations. Rufiin, J., in Shuford v. Commissioners, su- pra, says that such assessments "are committed to the unrestrained discretion of the law-making power of the state, only, as I take it, that the burden imposed on each citizen's property must be in pro- portion to the advantages it may derive therefrom." The latter part of the sentence very clearly implies the power of the courts to interfere to some extent, and in this we very heartily concur; but it is not essential, in this case, that we should define and mark the limits of this power, and it is sufficient to say that, according to all of the authorities, the legislature or its duly-author- ized instrumentalities are at least primarily the judges in respect to the particulars mentioned, and that their decision will not be disturbed unless it clearly appears that there is an absence of pow- er, or that the particular method prescribed for the assessment of the peculiar benefits to the abutting property is so plainly inequi- table as to offend some constitutional principle. The power to make such assessments must be clearly authorized by the legislature, but it is not necessary, and, "of course not to be expected. Indeed, it is scarcely conceivable that the legislature should, in conferring authority upon local bodies, specify in minute detail the incidents of the power. The courts generally hold that necessary incidental and subordinate powers pass with the grant of the principal power. Any other ruling would make it practically impcjssible to frame statutes capable of reasonable enforcement. In matters of street improvements and local assessments, as in kindred matters, it is generally held that a power clearly conferred in general words will carry all the incidental authority essential to the execution of the power in ordinary and appropriate methods." Elliott, Roads & S. 374. It is urged that all of these subordinate incidents should be pro- vided for in the act granting the power, because of section 4, art. 8, of the constitution, which requires the legislature to provide for the organization, etc., of incorporated towns, etc., "and to restrict their power of taxation, assessment, borrowing money," etc. Sim- ilar provisions have, upon the best authority, been hfld inapi»licablc to assessments of this character. They are construed, says Judge Dillon, (Mun. Corp. § 77^,) "not to apply to special as.scssmcnts by municipal corporations made by authority of the legislature for lo- cal imi)rovcments." The restrictions in such cases arc to be found in those general princi|)lcs of the constituti"'i uln'.h pti.irrt the 222 IMPROVEMENTS liberty and property of every citizen. Even if such a provision did apply, it is not easy to understand how the duty to restrict the power requires that all of the incidents of its exercise shall be pre- scribed by the legislature. Neither is it essential that the act of the legislature, or an ordinance made under its authority, should ex- pressly state that the contemplated improvement is necessary, (El- liott, Roads «& S. 385 ;) nor is it required that the act should ex- pressly declare that the assessments are to be made according to the benefits conferred. Both of these are implied from the very nature of this species of taxation, and that this is so is apparent from the action of the court in upholding such assessments under acts which make no reference to such particulars. Cain v. Com- missioners, supra; Shuford v. Commissioners, supra; Busbee v. Commissioners, supra. Viewed in this light, we can see no objection to the ordinance un- der consideration. It very clearly provides for a taxing-district, to- wit, "Fayetteville street, between Morgan and Martin streets," and it further provides that upon the failure of the abutting owners to comply with its requirements the city may make the designated improvements at the cost of $1.20 per square yard. This provision as to the cost, which is found by the court to be reasonable, very plainly implies that the expense of the improvement in the entire district had been previously estimated; and thus we have an ap- portionment between the abutting owners and the city, (the latter paying one-third,) and also an apportionment as to the remaining two-thirds between the abutting proprietors according to the front- age. No objection is urged as to the apparently equitable adjust- ment between the city and the abutting owners, but it is insisted that the frontage rule is an improper method of ascertaining the benefits which inure to the respective lots, and that these should be estimated by the actual appraisement of each. We have seen that such assessments are based upon the princi- ple of benefits to the abutting property, but the manner of estimat- ing such benefits is not confined to actual appraisement by apprais- ers appointed for that purpose. This would seem to be a very fair and equitable rule, but its practical working in some instances has led to injustice; and if the legislature, acting, as it is'presumed to do, upon information as to the situation and character of the proper- ty, the depth of the lots, etc., chooses, in eflr'ect, to make an appraise- ment itself by the adoption of a standard like the frontage rule, it is not easy to understand why, in such cases, the same measure of justice may not be attained. In Hammett v. Philadelphia, 65 Pa. St. 155, it was said by Judge Sharswood, delivering the opinion, that "perhaps no fairer rule can be adopted than the proportion of feet front, although there must be some inequalities of the lots dif- fering in situation and depth. Appraising their market values, and SPECIAL ASSESSMENTS 223 fixing the proportions according to these, is a plan open to favoritism or corruption, and other objections." Even where the latter rule is adopted the buildings should be excluded from the val- uation, "as the improvements," says Judge Cooley, "v^hile increas- ing largely the market value of land, do not usually perceptibly in- crease the value of the buildings erected upon it." Cooley, Tax'n, 649. If the buildings are not to be considered, (and this is undoubted- ly true), we can very readily conceive how the frontage rule may be quite as efficacious as any other in ascertaining the benefits — that is, the enhanced pecuniary value — where, from the similarity in situation, etc., of the different lots, there can be no gross in- equalities. The same eminent authority also states (page 638) that the two methods of assessing benefits, between which a choice is usually made, is by assessors or commissioners appointed for that purpose, or by "an assessment by some definite standard fixed upon by the legislature itself, and which is applied to the estates by a measurement of length, quantity, or value." In speaking of as- sessments by the front foot, he says (page 644) that "such a meas- ure of apportionment seems at first blush to be perfectly arbitrary, and likely to operate in some cases with great injustice, but it can- not be denied that, in the case of some improvements, frontage is a very reasonable measure of benefits, — much more than value could be, — and perhaps approaching equality as nearly as any other estimate of benefits made by the judgment of men. However this may be, the authorities are well united in the conclusion that front- age may be lawfully made the basis of apportionment." Similar language is also used by the same author in his wovk on Constitutional Limitations, (506,) and cited with approval in Wil- mington V. Yopp, supra. In the well-considered work on Roads & Streets, (396,) by Elliott, it is said that "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 apjjortions the expense according to the frontage; for it takes into considera- tion the benefit to each property owner that accrues from the im- provement of the entire line of the way, and does not impose uimn one lot-owner an unjust portion of the burden." The princii)lc is also fully sustained by the following authorities, which are only a part of the large number that might be cited. Burroughs. Tax'n. 469; 2 Dill. Mun. Corp. S§ 752, 701. 809; 2 Desty, Tax'n. 1263; Pennock v. Hoover, 5 Rawle (Pa.) 291 ; Magce v. Com.. 46 Pa. 358; Covington v. Boyle, 6 Bush (Ky.) 204; State v. Elizabeth. 30 N. J. Law, 365, 31 N. J. Law, 547; State v. I'ullcr. 34 N. J. Law, 227; Wilder v. Cincinnati, 26 Ohio St. 284; Parker v. Clinllis. 9 Kan. 155; Xeenan v. Smith, 50 Mo. 525; Whiting v. Quackenbush, 54 Cal. 306; Palmer v. Stumph, 29 Ind. 329; Allen v. Drew. 44 Vt. 224 IMPROVEMENTS 174; Motz V. Detroit, 18 Mich. 495; King v. Portland, 2 Or. 146; Cleveland v. Tripp, 13 R. I. 50; White v. People, 94 111. 604; She- ley V. Detroit, 45 Mich. 431, 8 N. W. Rep. 52. * * * It is insisted, however, with much earnestness, that, conceding that the ordinance prescribes a valid method of apportionment, still it cannot be sustained unless the power to make it is conferred by the legislature, and that such power has not been conferred upon the city of Raleigh. This position is founded upon the idea that the charter does not create or authorize the creation of a taxing- district, but simply charges the abutting owner with the whole cost of the improvement in front of his lot, and that, there being an ab- sence of authority to make any apportionments according to bene- fits, the ordinance is void. The imposition of such a charge has been condemned by some authorities and sustained by others. Without pausing to determine how this may be, and conceding, for the purpose of the discussion, that the charter bears the construc- tion insisted upon, and that such an assessment is for that reason invalid, we are nevertheless of the opinion that the ordinance is fully supported by legislative sanction. In chapter 62, § 3803, of the Code, ("Towns and Cities,") it is provided that the commissioners or aldermen "may cause such improvements in the town to be made as may be necessary, and apportion the same equally among the in- habitants by assessments of labor or otherwise." Here we have a very comprehensive power granted the commissioners or aldermen for the improvement of streets ; and the authority to apportion the cost of the improvement is not only implied by the power to make "assessments," (And. Law Diet. ; Bouv. Law Diet. "Assess,") but is expressly conferred. Now, if it be granted, as we think it should be, that the general act is deficient, in that it does not provide for the enforcement of such assessments against abutting real property, still it is good as far as it goes, and is not repealed by the charter as amended, unless inconsistent therewith. Code, § 3827. If it be said that the charter conflicts as to that part which requires the whole cost to be charged against the abutting property without any apportionment, and if, as contended, such a provision is void, it would be impotent to work a repeal of that part of the general act which does authorize such apportionment. If it does not conflict, then, of course, the general act may supplement the special act, and the two may be construed in pari materia. So, taking it either way, the authority to apportion the cost according to benefits, as provided in the ordi- nance, would be supported; and the power to collect the assess- ments being expressly granted, and the manner of collection pre- scribed, it must follow that, in the total absence of anything to show an abuse of power or any gross inequalities, the assessment in question may be enforced. SPECIAL ASSESSMENTS 225 We are of the opinion, however, that no personal judgment can be rendered against the abutting owner, and that so much of the amendment to the charter which provides for such a judgment is invalid. * * * Reversed. PALMER V. CITY OF DANVILLE. (Supreme Court of Illinois, 1S94. 154 111. 156, 38 N. E. 1067.) Petition by the city of Danville for the confirmation of a special tax levied by the authority of the city council to pay the cost of providing and putting in sewer and water service pipes for house connections with the main sewer and water pipes in Main street in said city. L. T. Palmer and others filed objections. There was judgment of confirmation, and the objectors bring error. Carter, J.'^ * * * It is objected that the special tax was "not levied by any rate of equality upon the real estate situated upon the said Main street, by or in proportion to frontage, value, area, or otherwise, but has been unequally and unjustly levied"; also that the city had no power to levy the special tax to pay for said improvement under article 9 of the act of 1872. The record shows that the street was 54 feet wide between the curbing; that the street railway track occupied the center; that the sewer main was laid along the south side, about 10 feet from the curb, and the water main along the north side of the street. These house connection pipes extended from the respective mains, each way, across the street, to the curbing, and no further; so that upon the south side of the street the sewer-service pipes were 10 feet, and the water-service pipes 42 feet, long, while on the north side the sewer pipes were 44 feet, and the water pipes 14 feet, long. The cost of putting in these sewer and water connections on the south side of the street, and of assessing and collecting the la.\ therefor, and for which the assessment was conlirmcd, was 1>.W.52 for each house or lot, while on the north side the amount was $50.- 07. So that a lot on the north side of the street, having the same frontage, area, value, and receiving the same benefits from the im- ])rovement as a lot on the south side, was assessed a much larger amount. This was done in accordance with tlie jjrovisioiis of the ordinance, and the question is directly i)resenled whclher the cily had the power to assess the cost of each lateral service pipe against the lot with which it was intended to connect, instead of appor- tioning the entire cost of the improvement among the several lots and parcels of land contiguous to or ahiitting iipftn the improvc- i^The statement of facts l.s rewrltton and part of tblH oi^inion and all of the concnrrin^ (ipiiiion of I'.}iile.v, J., are omitted. COOLEY Ca.ses Mun.C. — 15 226 IMPROVEMENTS ment, upon some principle or rule of equality, such as the frontage, area, or value of the respective lots. Counsel for the city says that: "This assessment was made up- on each lot with reference only to the cost of the pipe leading thereto. Each lot was assessed for its special connection, and the committee's estimate was made on that basis." That "while the improvement was a general one, in one sense, in another it was several as to each lot," — and insists that it would be unequal and unjust to require the property owner on the south side of the street, requiring only 10 feet of pipe to connect with the sewer, to pay as much for this local improvement as the lot owner on the north side of the street, requiring 44 feet of pipe to connect his lot with the sewer. It will be noticed that the ordinance provides that the special tax is to be levied and collected in accordance with article 9 of the act of 1872, which vests the corporate authorities of cities and vil- lages "with power to make local improvements by special assess- ments or by special taxation, or both, of contiguous property, or general taxation, or otherwise, as they shall by ordinance pre- scribe." This ordinance prescribed that this improvement should be made by special taxation, and directed that a special tax be as- sessed upon the respective tracts and pieces of land for which the service pipes were to be respectively provided, and which abut up- on such service pipes, equal to the cost of furnishing and laying the same. The power conferred to levy this special tax is referable to the power of taxation, and must be strictly construed. By the or- dinance the city created a district composed of the property con- tiguous to the improvement, for the purpose of levying the special tax to make the improvement. Cooley, Tax'n, 143, 151, 152; Light- ner v. City of Peoria, 150 111. 80, Z7 N. E. 69; Davis v. City of Litchfield, 145 111. 322, 33 N. E. 888, 21 E. R. A. 563. The basis on which the power to levy special assessments or special taxation on property contiguous or adjacent to the improvement, to pay for its construction, rests on the benefits which it is considered will inure to such property by the making of the improvement. City of Bloomington v. Chicago & A. R. Co., 134 111. 459, 26 N. E. 366, and cases cited; Louisville & N. R. Co. v. City of East St. Louis, 134 111. 656, 25 N. E. 962; Davis v. City of Litchfield, 145 111. 313, ZZ N. E. 888, 21 L. R. A. 563 ; Kuehner v. City of Freeport, 143 111. 92, 32 N. E. 372, 17 L. R. A. 774. So clearly is this founded on just legal principles, and generally understood, that these assessments or taxes are often called "bene- fits." In the levy of special taxes to make local improvements un- der article 9 of our statute, while the question of benefits is one that must be addressed to the city council, and the decision of the coun- cil is not generally open to review by the courts, but is final, yet SPECIAL ASSESSMENTS 227 it is clear, both upon principle and authority, that for unreasonable- ness, arbitrary abuse of power, or violation of the fundamental principles upon which the power of taxation rests, the validity of such an ordinance, as well as all proceedings under it, may be at- tacked in, and passed upon by, the courts. Cooley, Tax'n, 619, 622, and cases cited; Craw v. Village of Tolono, 96 111. 261, 36 Am. Rep. 143; City of Bloomington v. Chicago & A. R. Co., 134 111. 451, 26 N. E. 366; Louisville & N. R. Co. v. Citv of East St. Louis, 134 Til. 656, 25 N. E. 962; Davis v. City of Litchfield, 145 111. 326. 33 N. E. 888, 21 L. R. A. 563. In the case last cited an ordinance of the city of Litchfield was by this court declared invalid, where it provided that the cost of the improvement — the paving of a street — should be apportioned and assessed against the abutting property according to frontage, but the assessment against each lot was to be only the amount of the improvement in front of any such lot. It was there said that the ordinance had the effect of creating a taxing district composed of the property contiguous to the improve- ment, and that assessing each lot with the cost of paving the street in front of it was "not the imposition of a special tax upon contig- uous property, but an arbitrary imposition of the burden upon each lot of making the improvement in front of it," and that "it is of the essence of a tax that it shall be levied for a public purpose, and shall be uniform in respect to persons and property within the taxing district, whether that be the state, county, municipality, or dis- trict thereof created for local improvement, and that it be laid ac- cording to some fixed rule of apportionment," and that "eciuality of the burden is of the very essence of the right." See, also, 1 Desty, Tax'n, 29; Dill. Mun. Corp. 587. "The district having been established by ordinance, the tax is to be imposed upon some rule of apportionment which shall, in theory at least, conform to and be productive of uniformity in its levy." Davis v. City of Litchlicld. supra. The ordinance, and proceedings under it, involved in the case at bar, contain the same vice for which the ordinance in the Litchfield Case was declared void. Should it be said that there was equality and uniformity in t he- levy of the tax, as to property situated <'ii the same side of the street, and that it would be unjust to make llio^c situated nearer the sewer ctjntribute to the expense of the connections of those situated on the other side of the street, and further away, it is a .suf- ficient answer to say that the ordinance reciuired the cost of con- necting each lot to be assessed against such lot, and the mere cir- cumstance that the location of the main sewer was such that it re- quired less expen.se to make the connection on one .side than (»n the other could not be urged as a sufficient reason for violating the rule of equality and uniformity which should have been ob- served. Nor would there be any injustice in assessing the lots on L 228 IMPROVEMENTS the south at the same rate as on the north side, for, as we have seen, the levy of the tax must have been based on the benefits ac- cruing to the property from the making of the improvement; and, while the question of benefits was one for the city council to de- cide, it could not arbitrarijy decide and ordain in the same ordinance that the property on the south side of the street was benefited in a greater degree by these lateral service pipes than the property on the north side, simply because the main sewer was laid on the south side. Nor did the ordinance so declare. It provided for levying the cost on each lot of putting in the service pipe connect- ing it with the sewer and water mains, without regard to the prox- imity of the lot to the main, and without regard to the length of pipe required to make the connection. If, for any reason, such as the length of the pipe, obstructions in the vv^ay of placing it, or other cause, one of these service-pipe connections cost more than another, the assessment must, under the ordinance, have been made accordingly. The contention of defendant in error in support of the judgment, based on the alleged injustice of requiring the lot owner who need- ed only 10 feet of pipe to connect his lot with the sewer to contrib- ute to the cost of his opposite neighbor's connection, which re- quired 42 feet, is an argument against the policy of constructing such an improvement by special taxation. In Holt v. City of East St. Louis, 150 111. 530, 37 N. E. 927, this court said, "The object of special taxation is not to have each lot pay for the actual cost of what is done in front of it, but its proportionate share of the whole." Judge Cooley, in his work on Taxation (page 646), in speaking of the method of requiring each lot to pay for the im- provement in front of it, says : "Instead of establishing a taxing district, and apportioning the cost throughout it by some standard of benefit, actual or presumptive, the case of each individual lot fronting on the improvement has been taken by itself, and that lot has been assessed with the cost of the improvement along its front, or perhaps with one-half the cost, leaving the opposite lot to be assessed for the other half. If such a regulation constitutes the apportionment of a tax, it must be supported, when properly or- dered by or under the authority of the legislature. But it has been denied, on what seems the most conclusive grounds, that this is permissible. It is not the legitimate taxation, because it is lacking in one of its indispensable elements. It consid- ers each lot by itself, compelling each to bear the burden of the im- provement in front of it, without reference to any contribution to be made to the improvement by any other property, and it is con- sequently without any apportionment. From accidental circum- stances, the major part of the cost of an important public work may be expended in front of a single lot; those circumstances not SPECIAL ASSESSMENTS 220 at all contributing to make the improvement more valuable to the lot thus specially burdened, perhaps even having the opposite con- sequence. But, whatever might be the result in particular cases, the fatal vice in the system is that it provides for no taxing dis- tricts whatever. * * * jj^ sidewalk cases, a regulation of the kind has been held admissible, but it has been justified as a regu- lation of police, and is not supported on the taxing power exclu- sively." He further says that such levies are not taxes, but forced contributions, and that a local tax for a local benefit should be dis- tributed among and imposed upon all equally standing in a like re- lation. In the view we take of this case, the decision must be the same whether the principal question at issue involves a lack of municipal power, or an abuse of power conferred. The city council could not provide for the construction of this improvement by special taxa- tion, and then ignore the very principle on which such taxation is based. The work must be regarded as an entirety, and its cost ap- portioned and assessed, on some principle of equality and uniform- ity, on all of the contiguous property; that is, on all the lots and parcels of land in the taxing district. St. John v. City of East St. Louis, 136 111. 214, 27 N. E. 543, and cases cited. But it is urged that the general law for the incorporation of cities and villages confers power on the city "to construct and keep in repair, culverts, drains, sewers, and cess-pools and to regulate the use thereof," and, in addition, that the city has general police pow- ers which enable it to do all acts necessary for the preservation and maintenance of the public healtii. These general powers can- not, however, be carried into effect by means .of special taxation. In City of Chicago v. Law, 144 111. 575, 33 N. E. 855, it was held the city had no power to raise money by special assessment to en- able it to carry into effect its general powers enumerated in the Municipal Code, and that the power of taxation by special assess- ment cannot be exercised by a city unless it has been expressly con- ferred by the legislature. No one will, we presume, contend that the legislature has conferred authority on the city to enforce its general police powers by special taxation or by special assessment. If it be said that the city may com])el the lot et- ually enjoined from interfering with the plaintiff, also engaged in the business of removing garbage from said city. The grounds up- on which said contract is assailed in the petition of plaintiffs arc: First, that it was procured through bribery and other unlawful and corrupt means by MacDonald and others interested with him ; sec- ond, that, in so far as it purports to confer ujwn the contractor the exclusive right to remove the garbage of the city, it contravenes tiie settled rules of public policy, and is therefore void. The district court sustained the latter contention only. * * * 2. Aside from the allegation of fraud, the pleadings herein pre- sent no question which was not considered in Smiley v. MacDon- ald. It is true that, in the case named, the contract was assailed on the ground that the right conferred thereby was an exclusive fran- chise, and therefore within the inhibition contained in section 15, art. 3, of the constitution ; while in the case before us. as wc have seen, the contention is that said contract is void as against ptiblic policy. Counsel for defendants have cited numerous cases which assert the common-law doctrine that monopolies are odious, and therefore illegal. But they refer without exception lo franchises and agreements in restraint of trade, and can have no application to mere police regulations, designed to promote the health or mo- 1 For (llsciisslon ff jiriiKlplfs. see Coolcy, Muu. C'urp. | U5. 2 I'art of the opiuiou In omitted. 232 POLICE POWERS AND REGULATIONS rality of the general public. Almost every phase of the subject was discussed in the celebrated Slaughter House Cases, 16 Wall. 36, 21 L. Ed. 394, and 111 U. S. 764, 4 Sup. Ct. 652, 68 h. Ed. 585, to which an extended reference is made in the brief of defendants; and the doctrine therein announced fully sustains our conclusion in Smiley V. MacDonald. Indeed, there was in those cases no diversity of opinion among the judges with respect to the authority of a state in the exercise of its police power to confer upon an individual or corporation a privilege in its nature exclusive. On the other hand, the dissent of the nonconcurring judges was placed upon the ground that the claim of a sanitary regulation was a mere pretense, under which the state of Louisiana had attempted to invade private rights, and to deny to its citizens the privilege of engaging in a lawful business in no wise affecting the public health or morals. As intimated in Smiley v. MacDonald, the choice between san- itary measures is a function of the legislative department of the government, which the courts will not assume to control. The test, as therein remarked, where a particular measure is called in ques- tion, is whether it has some relation to the public welfare, and whether such is in fact the end sought to be attained. * * * Reversed. II. Peace and Order » CITY OF CHARITON v. SIMMONS. (Supreme Court of Iowa, 1893. 87 Iowa, 226, 54 N. W. 146.) The defendants were arrested upon warrants issued by the may- or of the plaintiff city upon informations charging them with vio- lating an ordinance of the city. The defendants were taken before the mayor, and entered pleas of not guilty. A trial was had, and they were found guilty, and judgment was entered against each of them in the sum of $10 and costs. They appealed to the district court, where, by agreement, the pleas of not guilty were with- drawn, and the defendants demurred to the informations. The demurrer was sustained, and the plaintiff city appeals. RoTHROCK, J. The ordinance under which the arrests were made and trial had was, by agreement, made part of the record, and the demurrer was sustained upon the ground that the ordinance was invalid. The ordinance in question, so far as it pertains to the question involved, is as follows: "First. That the collection or congregation of persons upon the 3 For discussion of principles, see Cooley, Mun, Corp. § 98. PEACE AND ORDER 233 Streets or sidewalks of the city, and the marching or movements of persons in crowds or processions thereon, at such times and places, and in such numbers and manner, as to obstruct or impede public travel thereon, or to injuriously affect or interfere with the business of any person or persons on such streets, is hereby prohib- ited; and it is hereby made the duty of the mayor and city marshal to order all such congregations or processions of persons to quietly disperse; and the failure or refusal of any person or persons to promptly obey such order of the mayor or city marshal shall be deemed a misdemeanor, and, upon conviction thereof, such per- son or persons shall be fined in any sum of not less than one dol- lar and not more than fifty dollars, in the discretion of the court, and shall be imprisoned in the county jail until such fines and costs of prosecution are paid. "Second. That the making of any noise upon the streets or side- walks of the city, by means of musical instruments or otherwise, of such character and extent, and at such times and places, as would likely cause horses and teams to become frightened and un- governable, or of such character, extent, and duration as to annoy and disturb others, is hereby prohibited; and it is hereby made the duty of the mayor and city marshal to order any person or persons making such noise to desist therefrom, and the failure or refusal of such person or persons to promptly obey such order of the may- or or city marshal is hereby declared to be a misdemeanor, and, upon conviction thereof, such person or persons shall be punished by a fine of not less than one dollar and not more than fifty dol- lars for each offense, in the discretion of the court, and shall be imprisoned in the county jail until such fines and costs of prosecu- tion are paid." The grounds of demurrer are that this ordinance is unreasonable and unjust, and prescribes a penalty, not for the violation of an ordinance, but for the refusal to obey an order of the mayor or city marshal. It is imjjortant to first determine whether the acts sought to be prohibited by the ordinance are such as the city may punish by ordinance. We do not understand counsel to claim that collec- tions and congregations of "persons upon the streets or sidewalks of a city, and the marching or movements of persons in crowds or processions thereon," may not, under certain circumstances and conditions, be prohibited. It is not the orderly procession, with flags and banners, musical instruments, and all the accompani- ments, so often seen upon the streets of our cities and towns, by our civic societies, by political parties, and not infrctjucntly at funerals, which this ordinance prohibits. These processions arc everywhere not only permitted. Init encouraged. But suppo.sc these processions should for an unreasonable lime obstruct travel on the streets, or injuriously affect business, and be carried on to 234 POLICE POWERS AND REGULATIONS such an extent and for such time as to be an annoyance and a nuisance to the pubHc, there can be no question that the city may by ordinance prohil)it them, and punish the persons making such an unreasonable disturbance. If the ordinance involved in this controversy were a sweeping prohibition of all processions, pa- rades, and all riding and driving upon the public streets of the city with bands of music, flags, torches, and other paraphernalia of the modern street parade, there can be no doubt that the ordi- nance would be unreasonable, unjust, and invalid. Within proper limits, the city has the power to "prevent riots, noise, disturbance, or disorderly assemblages, * * * ^^^^ ^q preserve peace and order therein." Code, § 456. We do not understand counsel for the defendants to question these general propositions. The real objection which they urge to the ordinance is that the offense is made to depend upon the whim or caprice of the mayor or city marshal. It is true that under the ordinance, when persons are arrested and brought for trial, it is incumbent on the prosecution to show by evidence that the order to desist from making the disturbance was given by the mayor or city marshal. But it is also incumbent on the prosecu- tion to prove that the person or persons charged were guilty of doing the prohibited acts. This is the gravamen of the charge. Evidence that the order to desist was given, without more, would not authorize a conviction. We are aware of no case determined by a court of last resort which is exactly in point upon the question under consideration. In Re Frazee, 63 Mich. 396, 30 N. W. 72, 6 Am. St. Rep. 310, it was determined that an ordinance absolutely prohibiting street proces- sions with musical instruments, banners, torches, etc., or while sing- ing or shouting, without the consent of the mayor first obtained, was unreasonable, and therefore invalid. In that case the offense consisted in failing to obtain the consent of the mayor before the procession or performance began. In the case at bar persons are not prohibited from putting a procession in motion. The prohibition extends to such a display as causes a public annoyance. So in the case of Mayor of Baltimore v. Radecke, 49 Md. 217, 33 Am. Rep. 239, it was held that an ordinance which provided that permits for steam boilers and engines might be revoked and removed aft- er six months' notice from the mayor, and any one receiving such notice, who refused to comply therewith, should pay a fine, was held to be unreasonable. This was an unwarrantable and unrea- sonable interference with the prosecution of a legitimate business, and depended upon the mere caprice of the mayor. In the case at bar, as we have said, the offense consists in doing acts which are everywhere regarded as subject to municipal control. Other cases are cited by counsel, but it appears to us that they are clearly distinguishable from the case at bar. On the other SANITATION 23 O hand, in the case of Com. v. Davis, 140 Mass. 485, 4 N. E. T'77 , an ordinance providing that "no persons shall, except by the permis- sion of the said committee, deliver a sermon, lecture, address, or discourse on the common or public grounds," it was held that the ordinance was not unreasonable and invalid. The committee re- ferred to in the ordinance was the committee of the city council having charge of the public grounds. See, also, Com. v. Plaisted, 148 Mass. 375, 19 N. E. 224, 2 L. R. A. 142, 12 Am. St. Rep. 566. In our opinion, the ordinance in question is not unreasonable. It is applicable to all persons who, by violating its provisions, sub- ject themselves to its penalties ; and the mere fact that no arrest can be made unless the mayor or marshal shall order the offender to cease from violating the ordinance, instead of being oppressive on the citizen, operates as a warning to him to desist from a viola- tion of the ordinances. He should not be heard to complain of this feature of the ordinance. The order of the district court sus- taining the demurrer to the information is reversed. III. Sanitation* LAUGEL v. CITY OF BUSHNELL. (Supreme Court of Illinois, 1902. 197 111. 20, G3 N. E. lOfSO. ns L. K. A. 200.) Action by the City of Bushnell against J. E. Laugel for violation of a city ordinance. Judgment for plaintiff having boon altirmod by the appellate court (96 111. App. 618), the defendant brings error. BoGGS, J.5 * * * 'file ordinance said to liavc bciii violated is as follows: "Be it ordained by the city council of the city of Bushnell: Section 1. That any place in said city of Bushnell where hop ale, hop mead, malt mead, cider or other like drinks are kept for sale, are sold or given away, either directly or indirectly, in any quantity whatever, is hereby declared to be a nuisance, and the owner, keeper, lessee or occupant of the premises who shall neglect or refuse to abate such nuisance after being notified so to do by the city marshal of said city, shall, on conviction thereof. forfeit and pay to said city a sum not less than ten dollars nor more than one hundred dollars for each and every day he shall refuse or neglect to remove or abate the same." In ihc circmt court the parties waived a jury, and submitted the cause to the * For (llscnsHJon of priTirlpIfH. .^jof foflcy. Mini. (N.rit. I '.K>. 6 Part of IlK' oi.iiilon Is omitted uud Ihe BLjjtCuiont Ih rowrlUcn. 236 POLICE POWERS AND REGULATIONS court for decision. When the ordinance was offered in evidence counsel for the plaintiff in error objected to the introduction there- of, assigning as the ground of objection "that the city had no power to pass it." But the court overruled the objection, and the plaintiff' in error excepted. This ruling, and the action of the court in refusing to hold as correct propositions of law Nos. 1, 2, and 3, presented in behalf of the plaintiff in error to be held as the law of the case, constitute the chief grounds of complaint in this court, and together raise the same question. Said propositions are as follows: (1) "The ordinance offered in evidence is void." (Refused.) (2) "The city council has no power to declare by ordinance that where hop ale, hop mead, malt mead, cider, or other like drinks are kept for sale, are sold or given away, either directly or indirectly, in any quantity whatever, is a public nuisance." (Refused.) (3) "No city council of any city in this state organized under the general law has the power or authority to declare, by ordinance or otherwise, that where hop ale, hop mead, malt mead, cider, or other like drinks are kept for sale, are sold, or given away, either directly or indirectly, in any quantity whatever, to be a public nuisance, regardless of the char- acter of such drinks or the ingredients thereof." (Refused.) The argument of counsel for plaintiff in error is correct that the authority which the governing bodies of cities and villages may exercise by virtue of subdivision 75 of section 62 of article 5 of chapter 24 of the Revised Statutes, entitled "Cities," etc., "to de- clare what shall be a nuisance and to abate the same and to im- pose fines upon persons who may continue or suffer nuisances to exist," is not as broad and unrestricted as the language of the grant of power would indicate. If interpreted according to its literal wording, the act invests the councils of cities and the trus- tees of villages with ample power to conclusively declare any and every trade, occupation, calling, or thing to be a nuisance and to abate it as such. The possession of such unlimited power would subordinate every business interest, however lawful, to the uncon- trolled will of municipal authorities, and its exercise would result in unjustifiable invasion of private right. We do not conceive it to be the law that city councils or boards of village trustees may conclusively declare that to be a nuisance which a court, acting upon its experience and knowledge of hu- man affairs, would say is not so in fact. That which, however, is a nuisance because of its nature or inherent qualities, or because it is forbidden by law, may be denounced or declared a nuisance by an ordinance, and such denunciation will be deemed conclusive. There are other things, trades, occupations, and callings which, because of their nature or inherent qualities, may or may not be nuisances in fact. As to this class we said in North Chicago City Ry. Co. V. Town of Lake View, 105 111. 207, 44 Am. Rep. 788, "that, SANITATION 237 if it be doubtful whether a thing is in its nature a nuisance, — that is, whether it is in fact a nuisance, — the determination of the ques- tion requiring judgment and discretion on the part of the village authorities in exercising their legislative functions under the pow- er delegated by the enactment we are considering, the action of such authorities should be deemed conclusive of the question." It is thought the doctrine thus announced as to the power of city councils is in conflict with the holdings of this court in the later case of Village of Des Plaines v. Poyer, 123 111. 348, 14 N. E. 677, 5 Am. St. Rep. 524, and should therefore be regarded as overruled. But in the still later case of Harmison v. City of Lewis- town, 153 111. 313, 38 N. E. 628, 46 Am. St. Rep. 893, the doctrine of the case of North Chicago City Ry. Co. v. Town of Lake View w^as reaffirmed. In the Lake View Case, we held that the city council or board of trustees were not clothed by the enactment in question with power to declare that a nuisance which is not so in fact, and we further said: "There are some things which are in their nature nuisances and which the law recognizes as such. There are others which may or may not be, their character in this respect depending on circumstances, and in the latter in- stance it is manifestly beyond the power of the village to declare in advance that those things are a nuisance. The question when a thing may or may not be a nuisance must be settled as one of fact, and not of law." The supposed conflict in the expressions of the court in the two cases is apparent only. It is true that in the Lake View Case it was said that the question when a thing may or may not be a nuisance must be settled as one of fact, and not of law, while in the former case it was said: "In doubtful cases, wlicrc things may or may not be a nuisance, depending upon a variety of cir- cumstances requiring judgment and discretion on the part of the town authorities in exercising their legislative functions under a general delegation of power like the one we are considering, their action under such circumstances Wf)uld l)c conclusive of the question." In the Lake View Case we also said: "There are some things which arc in their nature nuisances, and which the law recognizes as such. There arc others which may or may not be so, their character in this respect depending," not up<»n their nature or inherent cjualities, but, to c|Uotc again, "upon circum- stances." It was this latter class which were not nuisances in their nature, but which might become so by reason of exterior circumstances, such as location, surroundings, manner of conduct- ing the business, etc.. to which we referred in the latter case, and declared could not be conclusively denounced as nuisances by vil- lage or city authorities, but that the question as to them should be determined as one of fact, but not of law. 2o8 POLICE POWERS AND UEGULATIONS As to things, trades, occupations, or establishments falling within tlic other class, — that is, those which in their nature or in- herent qualities may or may not be nuisances, — the expression used in the Lake View Case is not inconsistent with the doctrine of the former case that such things may be conclusively denounc- ed as nuisances. Nuisances may thus be classified: First, those which in their nature are nuisances per se or are so denounced by the common law or by statute ; second, those which in their na- ture are not nuisances, but may become so by reason of their lo- cality, surroundings, or the manner in which they may be con- ducted, managed, etc. ; third, those which in their nature may be nuisances, but as to which there may be honest differences of opinion in impartial minds. The power granted by the statute to the governing bodies of municipal corporations to declare what shall be nuisances, and to abate the same, etc., authorizes such bodies to conclusively denounce those things falling within the first and third of these classes to be nuisances, but as to those things falling within the second class the power possessed is only to declare such of them to be nuisances as are in fact so. With these distinctions kept clearly in view, no difficulty will be found in harmonizing the decisions in question. Nor is the view that city councils and village trustees have pow- er to declare that a nuisance as to which it may be doubtful wheth- er it is or not a nuisance at all inconsistent with the declaration in Emmons v. City of Lewistown, 132 111. 380, 24 N. E. 58, 8 L. R. A. 328, 22 Am. St. Rep. 540, that to concede that the power of a municipal corporation to pass an ordinance is doubtful is to deny the power. In that case the question was presented whether the city of Lewistown had power to adopt an Ordinance to license, tax, or regulate the canvassing for books and publications in the city. It was contended on behalf of the city that subdivision 41 of sec- tion 62 of chapter 24 of the Revised Statutes, entitled "Cities," etc., invested the city council with power to adopt the ordinance. Said subdivision 41 does not expressly grant power to license, tax, and regulate persons engaged in canvassing for books or publica- tions, but does authorize such course to be pursued as to hawkers and peddlers. It was in connection with the discussion of the question whether persons engaged in canvassing for books and other publications were included in the class of persons denom- inated "hawkers and peddlers" in the ordinance that the expression in question was used. The doubt referred to was as to the power of the city council to pass any ordinance in any wise restricting or regulating the canvassing for the sale of books and other pub- lications within the city, and the court correctly remarked that to concede that it was doubtful whether the legislature had grant- ed such power was to deny the existence of the power. In the case at bar the grant of legislative power to declare what shall SAFETY 2o9 be a nuisance and to abate it is expressly given, and no doubt ex- ists as to the power of the city council over nuisances. The doubt is not as to the power possessed by the council to control nui- sances, but as to the nature or inherent qualities of the thing, call- ing, or occupation denounced as a nuisance. In the Emmons Case the doubt was whether there was any power in the city council to control the business of canvassing for books and publications, etc. Section 7 of chapter 43 of the Revised Statutes, entitled "Dram- shops," declares all places where intoxicating liquors are sold in violation of the act shall be taken and held to be common nuisan- ■ces. In Hewitt v. People, 186 111. 336, 57 N. E. 1077, we affirmed d conviction of the violation of the dramshop act in the selling of cider, it appearing from the evidence that the cider sold was intox- icating in character. In the case at bar the evidence tended to show that hop ale was an intoxicating drink. Clearly, we cannot as- sume to say that it is not at least doubtful whether cider, hop ale, hop and malt mead are not intoxicating. The city council, in the exercise of their judgment and discretion in disciiarging their leg- islative function, determined that places where hop ale, hop and malt mead, or cider was sold were nuisances, and, that determina- tion not being free from doubt, the courts must refrain from ile- claring the ordinance void and ineffectual. The court did not err in admitting the ordinance in evidence or in ruling on the proposi- tions of law. The admission of testimony bearing upon the ques- tion whether hop ale contained alcohol, and would produce intox- ication, cannot afford any reason for reversing the judgment. The declaration of the city council that a place where such ale is sold shall be regarded as a nuisance is, as we have seen, conclusive; hence proof as to the intoxicating character of the ale. though un- necessary to the case for the city, could not have i)rcjudiccd the cause of the plaintiff in error. * * * Affirmed. IV. Safety • ST.^TE V. JOHNSON. (Supremo Court of Ndrtli Caroliim, 1S!H. 1 1 I .V. C RIO. 10 S. E. r.OO.) Defendant Johnson was occupying and controlling a two-story wooden frame house, with brick basement, situated in the city of Winston, within l.fXX) feet of the Court sf|uarc ; and al)f)ut tlie 9th of December, 1S92, the house was partially destroyed by fire. « I'"or (IIscuhkIou of prlnclpk-s, see Cooley, Alim. Corit. i 100. 240 POLICE POWERS AND REGULATIONS On the 6th of January, 1893, the defendant made a contract with certain builders to have the house repaired at the cost of $490. The original cost of the building, including brick basement, was about $2,000. Shortly after work began under said contract, the defendant was arrested, tried and convicted before the mayor, and on appeal to the superior court the case was dismissed, on motion to quash the warrant. About the 17th of March, 1893, the defend- ant, without the consent of the board of aldermen, placed said contractors at work again on the building; and he was again arrested, and tried, convicted and fined. The following ordinances relating to this matter were adopted by said board : "That for the protection of the city against fire the following ordinance be enacted under chapter 5, as sections 36 and Z7 of said chapter 5 of the ordinances of the city : Sec. 36. That the fire limit shall be the territory from the center of Court square extending one thousand feet in each direction ; that it shall be un- lawful without the consent of the board for any person or corpo- ration to erect, alter or repair any wooden building within said fire limit, and any person or corporation violating the same shall be fined fifty dollars ; that for each day such person or corpora- tion continues to erect, alter or repair such building, it shall con- stitute a separate violation of the ordinance," etc. "Sec. Z7 . That any person who shall assist in constructing or repairing any build- ing, prohibited in above section, shall be fined," etc. There were other sections of the ordinances, prohibiting the erection of wood- en buildings in the business portion of the city without the writ- ten consent of the aldermen, etc., and the fire limit — 1,000 feet from the Court square — was established, etc. The defendant appealed from the judgment.'^ Avery, J. Municipal corporations are the creatures of the legis- lature, and their powers may be curtailed, enlarged, or withdrawn at the will of the creator, whose control over them is limited only by the restriction that no statute will be enforced which impairs the obligation of a contract, interferes with vested rights, or is in conflict with any provision of the organic law of the state or na- tion. It is too well settled to recapitulate, or even justify discus- sion, that towns, — certainly, by virtue of an express grant of au- thority to do so, and, according to most authorities, by implica- tion arising out of the general welfare clause, — if there is no gen- eral law to the contrary, are empowered to prescribe a fire limit, and forbid the erection of wooden buildings within such bounds as they may, by ordinance, prescribe. 15 Am. & Eng. Enc. Law, 1170; 1 Dill. Mun. Corp. § 405; Horr & B. Mun. Ord. § 232; Klingler v. Bickel, 117 Pa. 326, 11 Atl. 555. The weight of author- ity seems to be also in favor of the proposition that the legisla- t The statement of facts is rewritten. SAFETY 241 ture has the power to prevent the erection of wooden buildings in such corporations, or to delegate to the municipalities, the author- ity to do so, even where the enforcement of the law or ordinance causes a suspension of work in the erection of structures of this kind by persons who are carrying out contracts for their erection made previously with the owners of the land. Cordes v. Miller. 39 Mich. 581, 33 Am. Rep. 430; Ex parte Fiske. 72 Cal. 125. 13 Pac. 310. Persons, in contemplation of law, contract with refer- ence to the existence and possible exercise of this authority, when it is vested in the municipality. Citv of Salem v. Maynes. 123 Mass. 374; Munn v. Illinois, 94 U. s! 113, 24 L. Ed. 77; Wood- lawn Cemetery v. Everett, 118 Mass. 354; Com. v. Intoxicating Liquors. 115 Mass. 153; Knoxville Corp. v. Bird, 12 Lea ( Tenn ) 121, 49 Am. Rep. 326. Upon this same principle, all agreements for building are deem- ed to be entered into in view of the contingency that such power may be granted by the legislature, when it has not already been delegated, while the contract is still in fieri. 15 Am. & Eng. Enc. Law, 1171. While it might be unreasonable to prohibit even the slightest repairs to wooden buildings standing within tlie fire limits prior to the passage of a statute or ordinance establishing such limits, the power to prevent repairs is delegated, and presum- ably exercised, for the protection of property; and. where a wood- en structure within the bounds is partially destroved bv a fire al- ready, it is not unreasonable to require a new roof to be made of material less liable to combustion, or to forbid the repairs alto- gether when the damage to the building is serious, and to that end to compel the owners to give notice to the town authorities of their purpose to repair, and of the character of the contemplated work. Village of Louisville v. Webster, 108 111. 414. We arc aware that there is much conflict of authority as to the reason- ableness of ordinances forbidding all repairs, or the enforcement of them so as to prevent re])lacing roofs with the same material used before their destruction. TTorr & B. Man. Ord. p. 214. § 233; Brady v. Insurance Co., 11 Mich. 425; Ex parte Fiske. supra. But in this particular instance the legislature has granted a municijjality the power to supervise, or prevent the replacing of the roof with another of shingles, instead of constructing one of material less liable to destruction ; and we are not prcf)ared to ques- tion its authority to do so, since, upon the principle already an nounced, persons contracting with reference to !iie chances of the granting as well as the exercise of such powers acquire no vested rights, and afterwards voluntarily incurring all of the risks incident to their situation, have no reason to com])lain of the loss when it befalls them. The court imposed a fine of $50. There was no attcmj)t to cnff)rce the portion of the ordinance impoving a pcn- CooLEY Cask.s Mun.C. — 10 242 POLICE POWERS AND REGULATIONS alty of $10 for every hour the building was permitted to remain. There may be more doubt as to the reasonableness of that provi- sion. Com. V. Wilkins, 121 Mass. 356. But it is not necessary to pass upon a question not fairly rais- ed, and we forbear to do so. The judgment is affirmed. COMMONWEALTH v. CROWNINSHIELD. (Supreme Judicial Court of Massachusetts, 1905. 187 Mass. 221, 72 N. E. 963, 68 L. R. A. 245.) One Crowninshield was convicted of violating a rule of the board of Park Commissioners, and brings exceptions. Lathrop, J. The defendant was found guilty of violating a rule of the board of park commissioners of the city of Boston, which provides that "no person shall ride or drive in Commonwealth avenue at a rate of speed exceeding eight miles an hour." At the trial it appeared that the defendant, on November 13, 1903, was running an automobile at a rate of speed exceeding eight miles an hour in Commonwealth avenue between Exeter street and Fair- field street. Many objections were raised in the court below, and come before us on the defendant's exceptions. So much of Com- monwealth avenue as lies between Arlington street and the inter- section of the avenue with Beacon street was taken for park pur- poses by the board of park commissioners on June 29, 1894. 1. It is contended that the board of park commissioners never acquired any jurisdiction over the part of Commonwealth avenue where the offense was committed. This depends on the construc- tion to be given to St. 1893, p. 934, c. 300, § 1. This section is as follows: "Any board of park commissioners constituted under the authority of chapter one hundred and fifty-four of the Acts of the year eighteen hundred and eighty-two as amended by chapter two hundred and forty of the Acts of the year eighteen hundred and ninety, or of any special acts, shall have power to connect any public park, boulevard or driveway under its control, with any part of any city or town in this commonwealth wherein it has jurisdiction, by selecting and taking any connecting street or streets, or part thereof, leading to such park, and shall also have power to accept and add to any such park any street or part thereof which adjoins and runs parallel with any boundary line of the same: provided, that the consent of the public authorities having control of any such street or streets so far as selected and taken, and also the consent in writing of the owners of a majority of the frontage of the lots and lands abutting on such street or streets so far as taken, shall be first obtained." It appears that the public authorities having control of Commonwealth avenue assented to SAFETY 243 the selection and taking of the portion of the avenue taken, and that the consent in writing of the owners of a majority of the frontage of the lots and lands abutting on the avenue has been obtained. ^^ The contention of the defendant is that as the board of park commissioners has no control over the Public Garden, which abuts on Arlington street for the entire length of that street, it could not take the avenue for the purpose of connecting the Public Garden with the Back Bay Fens. But we are of opinion that the lan- guage of the statute is broader than this. The board of park com- missioners is expressly given the power "to connect any public park, boulevard or driveway under its control [in this case the Back Bay Fens] with any part of any city or town in this com- monwealth wherein it has jurisdiction, by selecting and taking any connecting street or streets, or part thereof, leading to such park." The object of the statute was to give a board of park commis- sioners having jurisdiction of a park in any city or town to take, under the conditions above set forth, any street connecting with that park in the same city or town, and was not limited to the taking of a street connecting two parks. The view which we have adopted is in accordance with that taken by the commissioners on the Revised Laws, and adopted by the Legislature: "Such boards may connect any public park, boulevard or driveway, under its control, with any part of a city or town for which they are ap- pointed by taking any connecting streets or part thereof leading to such park," etc. Report of Commissioners, c. 28, § 3; Rev. Laws, c. 28, § 3. 2. It is next contended that, if the park commissioners had juris- diction over that part of Commonwealth avenue where the of- fense was committed, their jurisdiction was limited to acts of maintenance and management, and did not embrace the [)owcr to pass the rule in question. But section 3. St. 1893. p. 935, c. 300. reads as follows: "Such boards of park commissioners shall have the same power and control over the streets or parts of streets taken under this act as arc or may be by law vested in them con- cerning the parks, boulevards or driveways under their c(»ntrol." To ascertain the power of the board, we turn to St. 18/5. p. 77^, c. 185, § 3, which not only gave the board power to take land for l)arks, and "to lay out, improve, govern and regulate" the same, but also "to make rules for the use and government thereof, and for breaches of such rules to affix penalties not exceeding twenty dfjliars ff;r one offense." Power is also given to e!npl(»y a police force. We cannot doubt the power of the board of park commis- sioners, under the statutes cited, to regulate the s|)cc(l at which a I)erson shall "ride or drive" in a park (»r in a street which is with- in the jurisrliction of such commissioners. In Com. v. Abrahams. 156 Mass. 57, 30 N. E. 79, where a rule made by the park com missioners under St. 1875, p. 778, c. 185, § 3, was held to be valid, 244 POLICE POWERS AND REGULATIONS it was said in the opinion of the court: "The parks of Boston are designed for the use of the public generally, and whether any park or a part of any park can be temporarily set aside for the use of a portion of the public is for the park commissioners to decide in the exercise of their discretion." The general question which arises where a by-law or ordinance of a city, or a rule of a board of park commissioners is concerned is whether it is authorized by a statute, and whether it is reasonable. See Com. v. Stodder, 2 Cush. 562, 570, 48 i\m. Dec. 679. The rule in question was author- ized by statute, and was reasonable. No question has been raised as to the power of the Legislature to authorize the board of park commissioners to make the rule relied upon, and it is evident that such contention, if made, could not prevail. Brodbine v. Revere, 182 Mass. 598, 602, 66 N. E. 607. 3. The next contention is that, if the board of park commis- sioners had power to pass rules, such power was taken away by subsequent legislation. The argument is that, because St. 1902, p. 235, c. 315, regulated the speed of automobiles throughout the state, it abrogated all park regulations. It is clear, however, that this statute was not intended to apply to park regulations. It refers to the speed of automobiles on public highways, streets, and ways. This act was repealed by St. 1903, p. 512, c. 473, § 15, which contains a clause that "nothing herein contained shall be so construed as to affect the rights of boards of park commissioners as authorized by law." The reason for this is that the act con- tains certain general regulations which apply to all automobiles, but section 8, which applies to speed limit only, applies to a pub- lic way or private way laid out under the authority of statute. 4. The next contention is that under section 14, St. 1903, p. 511, c. 473, no regulation of the park commissioners shall be effective unless notice of the same is posted conspicuously at the points where any road affected thereby joins other roads. But a reading of the section shows very clearly that the last sentence of the section applies only to special regulations made by boards of aldermen of cities and selectmen of towns, and has nothing to do with boards of park commissioners. The section reads as follows : "Nothing herein contained shall be so construed as to affect the rights of boards of park commissioners as authorized by law. Boards of aldermen of cities and the selectmen of towns may make special regulations as to the speed of automobiles and motor cycles, and as to the use of such vehicles upon particular roads or ways, including the right to exclude them altogether therefrom. Such exclusion, however, shall be subject to an appeal to the Massachusetts Highway Commission, whose decision in the case shall be final. No such special regulation shall be effective unless notice of the same is posted conspicuously at the points wdiere any road affected thereby joins other roads." SAFETY 24d 5. The last contention is that the rule of the board of park com- missioners is too indefinite to support criminal proceedings. Fault is found with the words "ride or drive," but we are of opinion that a person may be said to be driving an automobile if he is controlling the motive power. We find nothing else in the case which requires special consider- ation. Exceptions overruled. KNOBLOCH v. CHICAGO, M. & ST. P. RY. CO. (Supreme Court of Miuuesota, 1SS4. 31 Minu. 402, IS N. W. 100.) GiLFiLLAN, C. J. The onl}^ question presented by the appellant on this appeal is as to the validity of an ordinance of the city of St. Paul, as follows : "That no railroad company or corporation, or their agents or employes, shall run a locomotive or train of cars, or single car, within the limits of the city of St. Paul, at a greater speed than four miles per hour," etc. It is claimed that this is in restraint of commerce, and is therefore unreasonable and void. The facts relied on by appellant to show this, as affecting its line in question, (its short line between St. Paul and Minneapolis,) are: The length of the line is ten miles, of which between three and four miles is within the limits of the city of Minneapolis, (an ordinance of which restricts the speed to six miles an hour,) and three or four miles is within the city of St. Paul, leaving a space of country between the two cities of about three miles ; that the running time between the ends of the line in the two cities is 30 minutes, or 20 miles an hour, and that citizens of each city arc constantly applying to appellant to reduce the running time; that observance of the ordinances would increase it to more than c»nc and one-half hours; that about 2,400 tons of freight pass over ihc line daily, and nearly half a million passengers passed over it in the year 1882; that, although the crossing where rcspondcnl's cow was killed is within the platted portion of the city, the sur- rounding country is similar to the open country out of the city, and the street similar to a common country road, there being no graded streets within three-quarters of a mile, and no house with- in a quarter of a mile, in the direction of the built-up jjortion of the city. The street seems to have been a good deal traveled. We do not question the power of the courts to declare an ordi- nance of a municipal corporation void as in restraint of trade. The mere fact, however, that it operates to restrain trade will not jus- tify such action; f(jr proper police regulation and judicious care for the lives and property of citizens may ref|uire such ordinances, although it interferes in some measure with modes of transacting business. An ordinance limiting the speed of railroad trains 246 POLICE POWEItS AND REGULATIONS through the most densely peopled parts, or across the most thronged streets, of a city interferes with the speedy transaction of business by railroads to the same extent as where it applies to the more sparsely settled portions, or in crossing less frequented streets; but no one would say that an ordinance controlling the speed through such densely peopled parts of the city, or across the busiest streets, is void as in restraint of trade. In addition to its effect in obstructing business, there is the question of its ne- cessity or reasonableness as a proper police regulation. The determination, in the first instance, of that question has been com- mitted by the legislature to the discretion and judgment of the common council. When they have exercised their discretion and judgment, and passed such an ordinance, it is prima facie valid. It must be apparent that to justify a court in setting aside their action its unreasonableness or want of necessity as a measure for the protection of life and property should be clear, manifest, un- doubted, so as to amount, not to a fair exercise, but to an abuse of discretion, or mere arbitrary exercise of the power of the coun- cil. City of St. Paul v. Colter, 12 Minn. 41 (Gil. 16), 90 Am. Dec. 278; City of Rochester v. Upman, 19 Minn. 108 (Gil. 78). At this time, when it is much the fashion to include within the corporate limits of cities large tracts of surrounding country, there will undoubtedly be portions in which a restriction of the speed of trains to four miles an hour may be so manifestly unnecessary and unreasonable that a court may declare it void. Such was the case in Meyers v. Railroad Co., 57 Iowa, 555, 10 N. W. 896, 42 Am. Rep. 50, where the part of the city where the railroad ran was mere farm or agricultural lands inclosed with fences, and not laid out in streets. The portion of the city in question here is dififerent. It appears to be laid out in streets. Within a short distance of the crossing in question there appears to be a considerable and rapidly increas- ing city population, and the street making the crossing is a good deal traveled. Only two witnesses speak as to the amount of travel. One (for the plaintiff) says, "It is a well-traveled street." One (for the defendant) says, "There is lots of travel on Grace street; that is a well traveled street." While it may be true that a higher rate of speed through the portion of the city in question would be consistent with the public safety, we cannot say it is so clearly and manifestly the case that we can hold the passage of the ordinance an abuse of discretion on the part of the common council. If the ordinance be unreasonable, and unnecessarily op- pressive to commerce, the best way to prove that and secure its modification is to obey it. Judgment affirmed. OCCUPATIONS AND AMUSEMENTS 241 V. Occupations and Amusements ' PEOPLE V. WAGXER. (Supreme Court of Michigan, 1S91. 86 Mich. 594, 49 X. W. 600. i:". L. R. A. 286, 24 Am. St. Rep. 141.) McGrath, J. This case comes from the recorders' court of ihe city of Detroit by writ of certiorari, defendants having been con- victed of a violation of a city ordinance. By stipulation, the cases come up on one record. Defendants are bakers, and are charged with making for sale, selling, and offering for sale, bread that was deficient in weight under the ordinance. The ordinance is entitled "An ordinance relative to the manufacture and selling of bread." The ordinance provides that it shall not be lawful for any person to carry on the trade or business of baker, without first having ob- tained from the common council a permit for that purjiose. It next prescribes how the permit shall be obtained, and that the clerk shall keep a record of the permits granted. It then concludes as follows : "Sec. 4. All bread of every description, manufactured by the bak- ers of this city for sale, shall be made of good and wholesome flour or meal, into loaves of one pound, two pounds, and iour pounds (and no other) avoirdupois weight; and no baker shall make for sale, or shall sell or expose for sale, any bread that shall be deficient in weight, according to the requisitions prescribed in the preceding section of this chapter: provided, always, that such deficiency in the weight of such bread shall be ascertained by the sealer of weights and measures, by weighing, or causing to be weighed, in his presence, within eight h«>urs after the same shall have been baked, sold, or exposed for sale: and provided, further, that whenever any allowance in the weight shall be claimed on account of any bread having been baked, sold, or exposed for sale more than eight hours, as aforesaid, the burden of pn.of in respect to the time when the same shall have been baked, sold, or exi>ovC(l for sale shall devolve upon the defendant or baker of such bread. "Sec. 5. The sealer of weights and measures, under the direction of the chief of police, .shall be inspector of bread; and it shall be his duty, and he is hereby authorized and recpiired. from time to time, and not less than once in each month, at all seasonal)le h.Mirs, to enter into and inspect and examine every baker's shop, store- house, or other building where any bread is or shall be baked, stor- « For (ll.scu.ssiou of prlnclpleH, .see Coolcy, Mun. Corp. i 103. 248 POLICE POWERS AND REGULATIONS ed, or deposited, or offered for sale, and to inspect and examine, in any part of said city, any person or persons, wagons or other car- riages, carrying any loaf of bread for the purpose of sale, and weighing the same, and determine whether the same are in viola- tion of the true intent and meaning of this chapter; and, if the said inspector shall find any bread not conformable to the directions herein contained, or any part of them, he shall make complaint thereof for the purpose of having such person prosecuted according to law. '^'Sec. 6. No person or persons shall obstruct, or in any manner impede or willfully delay, the said sealer of weights and measures in the execution of his duties under this act, either by refusing him or delaying his entrance or admission into any of the places above named, or refuse or omit to stop their wagon or carriage as aforesaid, whereby the due execution of this ordinance, or any part of it, shall be impeded or obstructed. "Sec. 7. Any violation of any of the provisions of this ordinance shall be punished by a fine not to exceed fifty dollars and the cost of prosecution ; and the offender may be imprisoned in the Detroit house of correction until the payment thereof : provided, always, that the term of imprisonment shall not exceed the period of six months." The defendants insist (1) that matters contained within the body of the ordinance are not within its title ; (2) that by the ordinance private property is taken wihout compensation ; (3) that the ordi- nance abridges the right of the respondents to manufacture loaves of bread of such size or weight as they may deem most salable; (4) that it curtails defendants' business, and places a limitation up- on the capacity of respondents to carry on a lawful business ; (5) that the ordinance is not within the police powers of the state. There is no force in the first objection, as the provisions of the ordinance are clearly within the scope of its title. It has been held that the constitutional provisions relating to the title of laws pass- ed by the legislature do not apply to ordinances enacted by a com- mon council of a city. People v. Hanrahan, 75 Mich. 611-615, 42 N. W. 1124, 4 L. R. A. 751. The ordinance does not provide for the taking, seizing, or de- struction of shortweight bread. It does prohibit the sale of bread which is deficient in weight. The same objection might be made to ordinances prohibiting the importation of infected rags, or the sale of diseased cattle or of unsound beef, or of decayed vegetables, or of illuminating oils which are below the standard test, or of wa- tered milk. In Wheeler v. Russell, 17 Mass. 258, it was held that no recovery could be had for the price and value of shingles which were not of the statutory dimensions. In Eaton v. Keegan, 114 Mass. 433, it was held that, in view of the statute requiring oats OCCUPATIONS AND AMUSEMENTS '2i\) and meal to be sold by the bushel, no recovery could be had for the price and value of those articles when sold by the bag. It is claimed by defendants that, in order to get a pound of bak- ed bread, they are compelled to put into the oven more than a pound of dough, and that the process of baking reduces the weight, and, when asked what it is that evaporates, they reply, "Water." But they say the process of baking is not always uniform. The oven may be too hot. In such case, the bread crusts or skins quick- ly, retaining the moisture. And again, it may be too cold ; in which case the bread dries up, rather than bakes, and, in order to insure a pound loaf, the latter contingency must be provided against, and the weight of the dough must always be regulated accordingly. That fermentation is not always regular, and, when it reaches a certain point, the dough must be put into the oven, without refer- ence to the condition of the oven. That the cutting up of the dough, the weighing of it, and its transfer to the oven is necessarily hurried, and the scales are liable to become clogged or affected by dust. Notwithstanding all the difficulties suggested by respond- ents, the evidence shows that the bread inspector has been diligent in the performance of his duties ; had frequently visited the sev- eral bakeries of defendants, and but one of these defendants has before this time been complained of, and that was 15 }ears ago; and it is admitted by defendants, not only that the ordinance may be complied with, but that the short-weight bread discovered by the inspector was made for the very purpose of testing the validity of this ordinance; and, after the authorities had caused complaint to be made against defendants, they resumed the former man- ner of doing business, and made their bread in accordance with t he- provisions of the ordinance. Again, it is claimed that a barrel of flour will make 250 loaves ot bread, and that it is impossible to distribute an onlinary aiivaiicc in price of flour over this product; in other words, that the price of a loaf of bread cannot be advanced a fraction of a cent. This difliculty affects the retail dealer more than the wli(»lcsalcr. It has to be met in the sale of a jjound of nails, of a do/cn l)utt«m>. or of a paper of needles, as well as in the sale of a loaf of lircad. The ordinance does not attempt to regulate the price of the com- modity. That is not necessarily fixed with reference to fltmr at its cheapest price, so that, until the price of flour is reduced until it reaches a point where the reduction may l)c distributed, the dealer gets the advantage of the reduction, and when it advances aliovc the standard the consumer gets the advantage, until a point i> re.ich- ed where the advance may be added. '1 his (luct nation and the.se results are ordinary incidents of trade. The .state may institute any reasonable preventive remedy when the fre(|urncy of the frauds, or the difficuUy experienced by indivichials in circumventing them, is so 250 POLICE POWERS AND REGULATIONS great that no other means will prove efficacious. Tied. Lim. § 89, p. 208. Bread is an article of general consumption. It is usually sold by the loaf, and the individual consumer, in the majority of cases, buys by the single loaf. Each transaction involves but a few pennies, al- though the number of individual transactions in a large city reach- es each day into the thousands, and the opportunities for fraud are frequent. It would be practically impossible to prevent fraud in the sale of short-weight loaves, if the matter was left to the ordi- nary legal remedy afforded the individual consumer for fraud or de- ceit. The amount involved would not justify a resort to litigation. Sales are invariably made in loaves of the size of one, two, or four pound packages, and the ordinance simply takes the usual and ordi- nary packages or loaves into which bread is made, and fixes the standard of weight of each package. It does not prohibit the sale of bread by weight if it overruns, as it is claimed that it sometimes does, nor does it prohibit the exaction of an increased price by rea- son of the additional weight. It does not prohibit the sale of a half or a quarter or any other fraction of a loaf. Our statutes not only fix the number of pounds of each of the various commodities that shall constitute a bushel, but they also provide that a "box" or "basket" of peaches shall contain one-third of a bushel, and they fix the size of a "barrel" of fruit, roots, or vegetables, and they may, with equal propriety, fix the weight of a package or loaf of bread. The police power of a state is not confined to regulations looking to the preservation of life, health, good order, and decency. Laws providing for the detection and prevention of imposition and fraud, as a general proposition, are free from constitutional objection. Tied. Lim. p. 208, § 89. The charter of the city of Detroit empow- ers the common council "to direct and regulate the weight and quantity of bread, the size of the loaf, and the inspecting thereof." The ordinance is clearly within this provision, and it cannot under the decision in People v. Armstrong, 73 Mich. 293, 41 N. W. 275, 2 L. R. A. 721, 16 Am. St. Rep. 578, be subjected to the test of rea- sonableness. The convictions are affirmed, and the writ dismissed. The other justices concurred. CITY OF DULUTH v. KRUPP, (Supreme Court of Minnesota, 1891. 46 Minn, 435, 49 N. W. 235.) Mitchell, J.® The defendants were convicted of peddling with- out a license, contrary to the provisions of a city ordinance entitled "Ordinance No. 19. Peddlers, how Licensed," passed by the city 8 Part of the opinion is omitted. OCCUPATIONS AND AMUSEMENTS 251 council in the assumed exercise of the power granted them by the city charter "to Hcense and regulate all peddlers doing business within the city." Section 1 of the ordinance forbids peddling with- in the city without a license. Section 2 provides for the issuing of licenses, and fixes the amount of the fee at $100 for a year, $iX) for six months, $15 for a month, and $5 for one day. Section 3 defines the term "peddling" as including all persons who go about the city selling, or offering to sell, personal property; but provides that it shall not include persons selling at wholesale to dealers, or to the acts of merchants or their employes in taking orders for goods, in stock at their places of business, at the houses of their customers. Section 4 prohibits any one, "whether licensed under this ordinance or not," from calling attention to their business or the wares which they have to sell by crying them out, blowing a horn, ringing a bell, or by any other loud or unusual noise. Section 5 fixes the pen- alty for the violation of the ordinance. The defendants claim that the ordinance is invalid on three grounds, viz.: (1) That it was never legally passed; (2) that it embraces more than one subject, one of which is not exi)ressed in the title; and (3) that it is not a legitimate exercise of the police power to regulate peddling, but a mere tax for revenue purposes, as demonstrated by the unreasonable amount of the license fee ex- acted, and the fact that its provisions in no way look to the regula- tion or control of the business. * * * 3. The license fee exacted is somewhat large, and the provisions of the ordinance looking to the regulation of the business of ped- dling are somewhat meager. But the fourth section certainly con- tains provisions tending to secure the orderly pursuit of the busi- ness ; and the mere fact of exacting a license fee is one method of restricting it, which is itself a legitimate method of regulating some kinds of business. The latitude that is given to municipal bodies in fixing the amount of license fees, and the duty of courts not to declare the amount thus fixed unreascjnable, exce[)t in very plain cases, have been fully considered by us in former cases. Sec City of Mankato v. Fowler, Zl Minn. 3^)4, 20 N. W. 361 ; In re White. 43 Minn. 250, 45 N. VV. 232. If this was a case of one of the ordi- nary legitimate kinds of business, like that of butcher, baker, auc- tioneer, or the like, which are not liable to bccoine public nuisances, and consequently no occasion or right existed to restrict the number of persons who shall engage in it, it might be a (pjcstion whether the fee exacted wf)nld not be unreasonal)le. r>ut the evils hable to grow out of .some occupations may be such that their suppression can only be attained to an appreciable de- gree by the imposition of some restraint upon the pursuit of such callings or kinds of business. In respect to the great majority of occupations, no such evils are likely to follow; and consequently 252 POLICE POWERS AND REGULATIONS it would not be competent to attempt to restrain the number of those engaging in them by the imposition of a large license fee. All that could be required would be an amount sufficient to pay the cost of issuing the license, and to defray the expense of necessary police supervision. But where the business is of such a nature that its prosecution will do damage to the public, or that it is liable to degenerate into a public nuisance, then it is a legitimate exercise of the police power to impose a license fee large enough to act as a restraint upon the number of persons who might otherwise engage in such business. Tied. Lim. 274 et seq. It is upon this principle that very high license fees are exacted from those vending intox- icating liquors. Peddling, although in itself a moral and lawful pursuit, is one of the kinds of business which, if not thus restrained, is very liable to become a great nuisance, especially in cities, as almost every one knows by actual experience ; and in view of that fact it was a legitimate exercise of the police power vested in the city of Duluth to exact a license fee large enough to restrict the number of persons engaging in peddling, even although the sum was larger than enough to pay the cost of license and the expense of any police surveillance which the city might exercise over the business. In view of all the circumstances, we cannot say that the fee exacted is unreasonable. 4. It is further urged that the evidence did not justify the con- viction ; in other words, that the acts complained of did not consti- tute peddling. The evidence showed that the defendants were butchers who had a meat-shop in the city of Duluth ; that they had a "delivery wagon," which they sent out in charge of an em- ploye with meat to be delivered to fill orders previously given by their customers, but that at the same time they were accustomed to send out in the wagon other meat, also knives for cutting it, and scales for weighing it, and that the employe in charge of the wagon was accustomed to drive from place to place soliciting business, and selling to such as desired to buy from him, cutting up the meat, and weighing it out to the purchaser from the wagon. He solicited purchasers for the meat not only from the wagon, but by going from house to house when inmates did not see him and come out to the street. The defendants may not have belonged to the class of peddlers at which the ordinance was primarily aimed, but this mode of doing business constituted "peddling," not only within the definition given in the ordinance, but also according to the general and accepted definition of that term. The fact that the person in charge of the wagon may have, as he testified, only solicited those whom he calls "customers," — that is, persons who had been accus- tomed to buy from him, — did not make it any the less "peddling." City of Chicago v. Bartee, 100 111. 61 ; Graffty v. Rushville, 107 Ind. 502, 8 N. E. 609, 57 Am. Rep. 128. OCCUPATIONS AND AMUSEMENTS 253 The exclusion of the evidence complained of in the sixth as<;i-n- ment of error was at most error without prejudice, as the whole matter sought to be incjuired of was afterwards fullv -one into without objection. We find no error in the record, and the result IS that the order appealed from must be affirmed. 251 STREETS, SEWERS, PARKS, AND PUBLIC BUILDINGS STREETS, SEWERS, PARKS, AND PUBLIC BUILDINGS I. Use of Streets ^ TOWNSEND V. EPSTEIN. (Court of Appeals of Maryland, 1901. 93 Md. 537, 49 Atl. 629, 52 L. R. A. 409, 86 Am. St. Rop. 441.) Suit by Tovvnsend, Grace & Co. against Jacob Epstein. From a de- cree in favor of defendant, plaintiffs appeal. Jones, J.- This case presents questions of more than usual in- terest and importance, but we think principles enunciated in compara- tively recent decisions of this court must so far control its decisions as to render the solution of these questions free from difficulty. The facts giving rise to this litigation are as follows : The appellants (who were plaintiffs below) are the owners in fee of a lot of ground fronting about 49 feet on the south side of Fayette street, in the city of Baltimore, and running southerly, with uneven width, back to and abutting about 68 feet on a small street known as "Garrett Street," which runs east and west parallel with Fayette street to the north of it, and with Baltimore street to the south of it. This lot is occupied by a large building extending from street to street, which is used by the appellants as a factory for the manufacture of straw goods. In this building, looking out upon Garrett street, are a number of windows for the admission of light to the different floors thereof. The appellee is the lessee and occupant of three parcels of ground with the buildings thereon fronting on the north side of Balti- more street, and extending northerly to Garrett street, and is conduct- ing upon these premises a large merchandising business. For the pur- poses of this business he has recently purchased a lot of ground lying between and abutting on Fayette and Garrett streets, fronting on the south side of the former, and extending back to the north side of the latter street, and situated immediately opposite to where his premises lying between Baltimore and Garrett streets abut on the latter street, and to the west of the premises of the appellants. Upon this lot he proposes to erect a six-story warehouse, and to establish communica- tion between that and the premises and buildings occupied by him on Baltimore street by a tunnel under and a structure above and across Garrett street. The tunnel has been constructed. The structure across Garrett street has also been nearly completed. This is an in- closed structure, about 33 feet to the west of the premises of the ap- 1 For discussion of principles, see Cooley, Mun. Corp. § 109. 2 I'art of the opinion is omitted. USE OF STREETS 255 pellants. and is about 17 feet above the surface of the street. It is now connected with the building of the appellee which fronts on Baltimore street and extends back to the south side of Garrett street ; is 30 feet in width, running with the latter street; and is built 3V2 stories high across it to where this structure is intended to be con- nected on its north side with the warehouse which the appellee pro- poses to there erect. Before proceeding to construct this tunnel or to erect this connect- ing structure, the appellee applied for and procured from the mayor and city council of Baltimore, after complying with all formal re- quirements, the passage of an ordinance purporting to grant to him the privilege and right, under regulations therein prescribed, to con- struct such tunnel under Garrett street, and to erect an inclosed super- structure across said street to "connect one or more floors of the premises of Jacob Epstein on West Baltimore street * * * with the corresponding floor or floors of the building or improvements to be erected by him on the south side of West Fayette street and the north side of West Garrett street." This ordinance recited that this right was granted "for the convenience of the public having business with Jacob Epstein." The appellants began this suit by filing a bill in equity charging, in substance, that this ordinance, in attempting to grant to the ai)pcl- lee the right to build a tunnel under and a structure over Garrett street, as therein provided, is invalid and void, and that the attempt made by the appellee to exercise such right i^ an invasion of their rights as abutting lot owners on said street. They pray that the said ordinance shall be declared invalid and inoperative, and that the ap- pellee be perpetually enjoined from digging the tunnel and from erect- ing the superstructure as proposed, and that he be required to restore the earth removed from the tunnel, and to take down and remove such part of said superstructure as had already been creeled. The trial court refused the relief prayed for by the appellants, and decrccil that their bill be dismissed. Garrett street is a public street of the city of Baltimore, aiul as such subject to the same control of the municipality as it has over all of its streets and highways. The rights of the parties to this con- troversy are, therefore, to be determined from their relalicm to this street as a public street or highway of the city. * * * It would seem, therefore, that the api)cllants, as against the appellee, can claim no greater rights in or over this street than such as belong to both I)arties as abutting owners upon this highway. The (juestion. there- fore, is, do these rights entitle the api)ellaiUs to the relief prayed for in their bill against the acts of the appellee in rcii^rrt to the street in question which are therein complained of? * That owners of lots or ground abutting upon the public streets have lights in the easement which are valuable, and arc in addition to those 256 STREETS, SEWERS, PARKS, AND PUBLIC BUILDINGS which they have in common with the general public, is recognized in our statute law, which confers upon the city of Baltimore the power for laying out and closing up streets by providing for compensation to such owners upon the closing of an adjacent street (Acts 1898, c. 123, § 6, subtit. "Streets, Bridges and Highways"), the same provision be- ing formerly contained in Code, art. 4, § 806, Pub. Loc. Laws. Such right of the abutting owner thus recognized was enforced by this court in the case of Van Witsen v. Gutman, 79 Md. 405, 29 Atl. 608, 24 L. R. A. 403 , where it was said : "It is recognized by the statute that abutting owners have interests in the street or alley which are valuable, and that these cannot be taken for the public use without compensation. It is believed that no one will contend that they can be taken for private use on any terms whatsoever. Certainly such a doctrine has never at any time found any toleration in this state." In the case just referred to, relief was sought against the obstruction of the public alley there in question, so as to cut off the complaining lot holders from ingress and egress from and to another public street, and to destroy the right of passage out and over said alley to this street. * * * Now, this valuable property right in the public street which this court upheld in the case just referred to embraces something more than the mere right of passage over the surface of the street, which was the right more directly involved in that case. The abutting lot holder has the right to the enjoyment of the light and air which the highway affords. To deprive him of this right would be to impair, or, it might be, to destroy, the comfort, enjoyment, or use to be derived from the easement to which he is entitled ; and we find this recog- nized by very high authority. In 2 Dill. Mun. Corp. (4th Ed.) § 712, it is said : "There is a large class of cases in which no recovery can be had for mere consequential injuries to adjacent property from the construction of public improvements in the streets, towns, and cities ; the lot owner holding subject to the right of the public to use the streets for any purpose consistent with the legitimate uses for which they were dedicated or acquired. But lot owners have a peculiar in- terest in the adjacent street, viz. easements of access, light, and air, which are property rights, and as such are as inviolable as the proper- ty in the lots themselves; and they may recover from the company making such improvements such damages as they may sustain by in- juries to or invasions of such easements." Again, in the case of Field V. Barling, 149 111. 556, 37 N. E. 850, 24 L. R. A. 406-409, 41 Am. St. Rep. 311, the court said: "It will not be necessary to cite authorities in support of the proposition that a private individual cannot appropri- ate to his own exclusive use a portion of the surface of a street dedi- cated to the public use. * * * The dedication of the strip of land for a public street embraced not only the surface of the ground, but the light and air above, and an individual has no more right to ob- struct the light and air above the street than he has to obstruct the USE OF STREETS 257 surface of the soil." The case just cited is pecuHarly apt here, be- cause it deals with facts and conditions very similar to those presented by the case at bar. * * * It is thus seen that the right of the abutting owner to light and air from a public highway as part and parcel of the easement is distinctly recognized in the authorities when such right has been drawn in ques- tion, and it rests upon sound and obvious reason. Recognition of this right is not at all at variance with the decisions of this and other courts of this country in regard to the doctrine of ancient lights, which hold that such doctrine is unsuited to conditions here. The case of Cherry v. Stein, 11 ]\Id. 1, cited and relied upon by the counsel for the appellee, is an illustration of these cases. The doctrine of ancient lights, that they repudiate, involves an abridgment of the use which an owner can make of his own property. It puts upon the property of one a servitude in favor of another. This is not the nature of the right to light and air from a highway, which belongs to an abutting owner as part of the easement. This right to light and air is the dis- tinct right of every abutting owner ; and in claiming protection for it such owner is not imposing a servitude upon his neighbor's property for his benefit, but is only asserting his equal right with his neighbor to the enjoyment of an easement common to them both. * * * We have seen, now, the nature and extent of the rights of the ap- pellants in and to the street of the obstruction of which they comj)lain. If the public easement has been improperly and unlawfully obstructed by the appellee, then he has been guilty of creating a nuisance: and. if the appellants have suffered therefrom an injury ditTerent in kind from and beyond that sultered by the comnuuiity generally, or special and particular damage resulting to them by reason of the nuisance, then they have a right to their private remedy for such injury, (^-iri- tee V. Mayor, etc., 53 Md. 422; Field v. Barling, supra. To discover what injury, if any, the appellants have suffered from the acts of the appellee, and the character of the injury, resort must be had to the proof. This does not show that the appellants have sulTcrcd or arc sufTering any injury from the tunnel constructed under the bed of the street in question as has been described. In reference to the super- structure, the proof shows that it tends to and Certiorari to review a city ordinance by Minor H. Ivins and oth- ers, as prosecutors, against the inhaljitants of the city of Trenton. HiCNDRicKSON, J.'' The prosecutors seek to set asitlc, as invalid, an ordinance of the city of Trenton approved March 18. l'>02. The ordinance ordains that the erection, etc.. of any stationary or swinging sign, or any stationary awning, shed, or other obstruction, across the whole or any portion of any sidewalk within that jiortion of the city of Trenton embraced witiiin certain bounds defined in the ordinaticc. shall be deemed and is thereby declared to be a nuisance. It contains provisions empowering and directing the police department t<> pre- vent such erections or other obstructions across the whole or any portion of any sidewalk within saifl boimds. and. to remove any such erection or obstruction there existing in front of any building where the owner or occupant neglects or refuses to remove the same after 10 days' notice in writing. A penalty of $20 is alsf) added in case of such neglect fjr refusal after notice. The j)rosecutors arc the owners of a brick store building anrl lot known as No. 120 North I'ro.id >>lrcct, in said city, where for several years they have conducted the Itusincss of flealers in fruits, vegetables, and produce. They have an awninjj in front of their premi.ses, 2S feet 11 inches long, consisting of an ' I';!rt of flic ojilnloi) is (»niltl«'<7 ; J...u-s v. City of Williamsburg, 97 Va. 722, 34 S. E. 883, 47 L. R. A. 294; Lafaycllc v. Timberlake, 88 Ind. 330. The judgment is therefore affirmed. 2S0 TOUTS CUNNINGHAM v. CITY OF SEATTLE. (Supreme Court of Washiugtou, 1905. 40 Wash. 59, 82 Pac. 143, 4 L. R. A. [N. S.] G29.) Action by R. Cunningham against the city of Seattle. From a judgment for plaintiff, defendant appeals. Crow, J. Respondent instituted this action against the city of Seattle, appellant, to recover damages occasioned by a certain horse trespassing upon and destroying respondent's lawn. On trial the court made findings of fact to the effect that on September 6, 1904, appellant city was maintaining near respondent's residence a certain engine-house as a part of its fire department, and keeping there nu- merous horses; that on said date, through the negligence of said city, one of said horses trespassed upon respondent's lawn, by run- ning over, tearing up, and destroying the same; and that said horse was owned, kept, and used by said city exclusively in said fire de- partment. Upon said findings judgment was entered in favor of respondent, and this appeal has been taken. It clearly appears from the evidence that said horse was in the exclusive charge, care, and control of the regular employes of said fire department. Appellant contends that no negligence on the part of the city or its employes has been shown ; but, without passing on that question, we will, in disposing of this case, accept the findings as made by the trial court. Appellant further contends that, even though negligence be conceded, still it is not liable to respondent for any damage caused by its employes in the maintenance and operation of its fire department. This contention, we think, should be sustained. The maintenance of a fire department by a municipal corporation is the exercise of a public or governmental function, "The rule is gen- eral that a municipal corporation is not liable for alleged tortious injuries to the persons or property of individuals, when engaged in the performance of public or governmental functions or duties." 20 Am. & Eng. Ency. of Law (2d Ed.) 1193. The only question here is whether appellant is liable for damage done to respondent's property by reason of negligent acts of the mem- bers of its fire department. Under the authorities this question has been almost uniformly answered in the negative. The Supreme Court of Ohio in Frederick v. City of Columbus, 58 Ohio St. 546, 51 N. E. 35, says: "The ground on which the nonliability of municipal cor- porations is placed in such cases is that the power conferred on them to establish a department for the protection of the property of its citizens from fire is of a public or governmental nature, and liability for negligence in its performance does not attach to the municipality unless imposed by statute. The nonliability of the city in such cases rests upon the same reasons as does that of the sovereign exercising like powers, and are distinguished from those cases in which powers CARE OF STREETS 2J>1 are conferred on cities for the improvement of their own territory and the property of their citizens." The holdings of this court have been to the same effect. Lawson V. Seattle, 6 Wash. 185, 33 Pac. 347 ; Russell v. Tacoma, 8 Wash. 156, 35 Pac. 605, 40 Am. St. Rep. 895; Simpson v. Whatcom, 33 Wash. 392, 74 Pac. 577, 63 L. R. A. 815, 99 Am. St. Rep. 951 ; Lynch v. City of North Yakima, 37 Wash. 657, 80 Pac. 79, 12 L. R. A. (N. S.) 261. In Lynch v. City of North Yakima, this court, speaking by Root, J., said: "But it may generally be accepted that a city is not liable for an improper discharge by its officers of a purely governmental function. The duties of an officer or employe of a fire department are regarded as for the benefit of the community, and not for the mere advantage of the municipality as a corporate bodv. The city, possessing, as it does, a portion of the sovereignty of the state, in the exercise thereof provides and maintains a fire department. The services of this department are for the benefit of all persons who may have property in the city limits capable of injury by fire. It would seem, therefore, that in creating, maintaining, and operating the fire department the city was exercising governmental functions." Under the above authorities, we think the city of Seattle was not liable to respondent for damages resulting from negligent acts of the employes in its fire department. The trial court, therefore, erred in entering judgment for said respondent. The judgment is reversed, with instructions to dismiss the action.' II. Care of streets * JACKSON V. CITY OF GREENVILLE. (Supreme Court of Mi.ssissipitl. 1,S94. 12 Miss. 21i(), Hi South. ;;vj. I'T !>, It. .\. 5L'7, 48 Am. SI. IC.-i'. ■":!.) Action by D. D. Jackson against the city of Crcenvillc. i-"runi a judgment in favor of defendant, plaintiff ajjpeals. Woods, J.'' This action was brought by the appellant f<.r tin- recovery of damages for injuries sustained by him in consequence of defects in a sidewalk in the city of C.rccnville. negligetitly suffered to exist. * * * Was the appellant, at the time of rerriving the in- jury, making such use of the street and sidewalk as will entitle liiin to a recovery for hurt suffered by reason of defects in the sidew.iJk.'' a The (llssfiitliiK opinion of UiulUIn, J.. Ih iinilllcd. Ilihnirliik' «lfiii«'l«'S, .'<«•« Took-y, .Muu. Corp. i IIS. 6 Purt of the opinion Is omitted. 282 TORTS It is elementary law that streets are primarily designed to be used for purposes of transportation and travel ; and the authorities are uni- form to the efi["ect that, in the absence of any express statute creating liability, municipal corporations, clothed with plenary and exclusive control over their streets, are yet liable, by implication, for injuries resulting to persons properly using such streets, for failure to main- tain the same in a reasonably safe condition for travel. That the rule as stated is substantially recognized and applied by the courts in cases of statutory and of implied liability will appear by examination of the adjudications of courts of last resort in both classes, and any seeming want of harmony will, in most instances, appear to have arisen from failure to confine the language of the several courts to the facts of the particular case. What are the facts as shown in the evidence introduced on trial below by the appellant, which are sup- posed by counsel for appellee to bar any recovery herein? * * * The case thus presented is that of a man of full age using the side- walk, not for the purpose of travel, either for business or exercise or pleasure, but for the sole purpose of playing with a dog. The appel- lant had come out of his boarding house to the sidewalk. He was standing, and was not going anywhere. He was playing with the dog, and was standing with his back to the roadway, and his face turned towards the palings, when, in an effort to catch the dog, running be- tween him and the fence, he stepped, and received his injury. Can it be satisfactorily gathered from the above statement that the appellant, when hurt, was making such reasonable use of the street or its side- walk, at the time of receiving the injury complained of, as will bring him within the category of those for whom streets and sidewalks are designed ? Was he a traveler on or along the street, who, incidentally halting or turning aside upon his way, received his hurt? Was the municipality under any duty to the appellant to keep in repair the side- walk so that he might safely use it for the purpose of his play with the dog? Streets, we repeat, are designed for travel, primarily ; and though it must be conceded that one using the street for travel may incidentally cease to move on continuously, and yet not lose his right as a traveler on the highway, yet it cannot be deduced from this concession that one not using the street for travel may, nevertheless, convert it, or part of it, into a playground, and in so using it, if injury occur while so using or misusing the street, by reason of defects in it, hold the negligent municipality liable. To recover, the injured party must fix liability upon the municipality ; and, to fix liability, the sufferer must show failure on its part to discharge a duty to him. But the duty to repair and keep in reasonably safe condition streets and sidewalks is due only to those using the highways for the purposes of their crea- tion. If a football team appropriate a street to its uses in playing a game, and one of the players fall into a hole in the roadway, and in- jury result, would any one be found to say that he could rightfully CARE OF STREETS 2S3 complain and recover? In such case the injured player clearly would be frustrating the very end for which highways are ordained, viz. the convenient and safe transportation and travel of property and per- sons. It seems to us indisputable that one contravening the law of the creation, and the ends for which it was created, cannot be heard to complain if ill befall him because of his own wrongdoing. Many cases have been examined by us where liability was imposed and recovery had for injuries to children, not of the age of discretion, when playing on the streets or highways ; but all such cases, on well- understood legal principles, are readily distinguishable from the case at bar. Chicago v. Keefe, 114 111. 222. 2 N. E. 267, 55 Am. Rep. 860. and Indianapolis v. Emmelman. 108 Ind. 530, 9 X. E. 155, 58 Am. Rep. 65, cited in the brief of appellant's counsel, are of this character. Our own adjudications are along the same line, in like cases. Mack- ey v. City of Vicksburg, 64 Miss. 711, 2 South. 178; \'icksburg v. McLain, 67 Miss. 4, 6 South. 774. When we come to consider the cases referred to by the counsel wherein adults received injuries in streets, we shall discover that none of them, on their facts, at all resemble the case at bar. The sinewy, lucid, and caustically humorous opinion in \'arncy v. Manchester, 58 N. H. 430, 40 Am. Rep. 592, was upon these facts, in a word, viz.: Varney, the plaintiff, went to a certain street in Manchester for the purpose of seeing a procession form on Decoration Day. He went down one side of the street to the place where the procession was forming, and crossed over the street to get a better view, lie stood looking at the forming of the procession, near a pile of lumber ; and. after so standing and looking from three to five minutes, the lumber fell, and crushed his foot. Held, that a person is "traveling upon a highway" when he is making a reasonable use of a hif,dnvay as a way. and that the law does not prescribe how long one may stand on a street without ceasing to use the way as a way ; but that the question was one of reasonable use, and this was for a jury's determination, if there is any evidence on which they could properly find the use was reasonable. The case of Murray v. McSlianc. ':^2 Md. 217. is that of an adult lawfully passing along a street, and stopping for an instant on a door- sill of a house fronting the street, for the purpose i)f adjusting his shoe, and suffering injury in con.se(|nence of a brick falling from a dilapidated wall, negligently permitted to remain there. Held, that travelers on a street have not only the right to pass, but to stoj) on necessary and reasonable occasions, so they do not obstruct the street or doorway. In HufTy v. City of Dubuque, 63 Iowa, 171. 18 N. W. f>00. 50 Am. Rci). 743. the facts were that DufTy. who was a workman. wct)t to the corner of the two intersecting streets for the pur|.ose of d<.inK some work on a house there situated. After he had unloaded some stufT from a wagon, he went along the sidewalk to a hydrant cipht feet 284 TORTS in rear of the house and a foot or two from the line of the sidewalk. While in the act of drawing water from the hydrant, with one foot on the ground, and the other on the sidewalk, a section of a roof, neg- ligently left standing near, was blown over by a gust of wind, fell on Duffy, and inflicted the injuries of which he complained. Held, that Duffy's stopping to draw water as stated was the exercise of a privi- lege which he might lawfully enjoy, and was a mere incident- to the general use of the street which he was making. The opinions of the New England courts, when liability in the char- acter of cases which we are considering is of statutory creation, and in which, as is sometimes charged, extreme and antiquated views are announced, it will be found, on careful analysis, are not out of general accordance with the spirit of the most, not to say all, of the decisions elsewhere which we have examined. In the case of Blodgett v. City of Boston, 8 Allen (Mass.) 237, while the court deny the liability of the city for injuries received by a boy 11 years old, who was using the plank sidewalk on the street with another boy for purpose of play only, yet the opinion is careful to limit the effect of the decision by saying : "We do not certainly think any narrow or restricted significa- tion should be given to the word 'traveler,' as used in the statute. It may well embrace within its meaning, as applied to the subject-matter, every one, whatever may be his age or condition, who has occasion to pass over the highway for any purpose of business, convenience, or pleasure. * * * \Ye by no means intend to say that a child who receives an injury caused by a defect or want of repair in a road or street, while passing over or through it, would be barred of all rem- edy against a town merely because, at the time of the occurrence of the accident, he was also engaged in some childish sport or amuse- ment. There would exist in such case the important element that the person injured wa':; actually traveling over the way. But this element is wholly wanting in the case at bar." Here, as in the case just quoted from, the important element of actual use of the way for the purpose of travel is wholly absent. Here, as there, the case shows an appropriation of a sidewalk to a use other than, and inconsistent with, that for which the highway was established. Here, however, the offender against the rights of the public was an adult, and not a child of debatable discretion. Here, in addition, the play with the dog was not a mere incident to the gen- eral and proper use of the sidewalk by the appellant in passing along or over it. The city owed him no duty, in his situation, and using the street as he was doing. The duty was on the municipality to keep and maintain the street in reasonably safe repair for travel, and liability ensued upon injury befalling one going along or over it, whether for purposes of business or pleasure, by reason of failure to keep and perform this duty. But to one simply using the street or sidewalk as a playground the city owed no duty to keep its streets for him so en- gaged in any repair. Affirmed. CARE OF STREETS 2S5 TICK V. BAY CITY. (Supreme Court of Michigan, 1891. 84 Mich. 461. 47 X. W. 10C2.) Morse, J.® This case has been in this court once before, and will be found reported in 78 Mich. 209, 44 N. \\\ 52. The plaintiff sues for damages occasioned by her foot being caught in a hole in the sidewalk upon the east side of Jefferson street, in Hay City, at a point about midway between two gates, leading into the county jail premises, the gates being 75 feet apart. Two facts are settled beyond dispute by the record: First, that the plaintiff was injured by getting her foot into a hole in the sidewalk in the locality described in her declaration ; and. secondly, that there was no proof that any officer of the city had actual knowledge of the existence of this hole prior to the accident. There is no claim of any contributory negligence on the part of the plaintiff", and the main issue, therefore, was whether the hole had existed in the sidewalk so long that the city was in duty bound to take notice of its existence. * * * The accident to plaintiff occurred on the 6th day of December. 1S87. The law of 1887, creating a liability in cases of defective sidewalks, took effect September 28, 1887. Testimony was introduced on the part of the plaintiff tending to show that the defect in the sidewalk, of which she complained, existed in the months of May. June, July, and August, 1887. This testimony was objected to. and the court was asked to instruct the jury that they could not consider the evidence as to the condition of the sidewalk in those months, because at that time the city was not liable for any defects in the sidewalk. This re- quest was properly refused. If this hole existed prior to Sejitembcr 28, 1887, and continued up to December 6, 1S87. the city was n