THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW Gift of Lenoer-Moss Co. A TREATISE ON THE LAW OP MUNICIPAL CORPORATIONS BY HOWARD S. ABBOTT OF THE MINNEAPOLIS BAR LATE SPECIAL MASTER IN CHANCERY UNION PACIFIC RAILROAD RECEIVERSHIP. MASTER IN CHANCERY U. 8. CIRCUIT COURT: LECTURER ON PUBLIC AND PRIVATE CORPORATIONS AND CIVIL LAW. UNIVERSITY OF MINNESOTA IN THREE VOLUMES VOL. I ST. PAUL: KEEFE-DAVIDSON COMPANY 1905 COPYRIGHT, 1905, BY HOWARD S. ABBOTT. PREFACE. The subject of the present work is considered by the author one of great importance at the present time. To counteract the mod- ern tendencies of governmental agents in exercising powers other than those strictly pertaining to their character, through the con- struction of many public works and the ownership and main- tenance of enterprises usually considered private in their nature, requires an accurate and thorough knowledge of their true char- acter and legal capacities. The extent and character of their con- trol over public property, their power to incur indebtedness and to issue negotiable securities, their right to own and operate public utilities, are questions of the deepest personal concern to everyone. The need of a comprehensive and modern work treating of these and many allied questions with a reference to the latest adjudi- cated cases is regarded as a justification for the publication of the present volumes. Particular attention has been given to those subjects connected with the exercise of municipal powers which, in the opinion of the author, are of the present and greatest relative importance. An effort has been made to state in the text, concisely and ac- curately, the general principles applicable to a stated question and to give in the notes a reference to the cases considering the sub- ject under which they are cited with, in many instances, an apt quotation from the decision of the court. This particular feature, it is to be hoped, will prove of great assistance to those consulting the work and not having at hand the report from which the quo- tation is taken. An exhaustive examination and citation of the authorities has been made, and an index has been prepared un- usually full and complete. The author trusts that his work will, after more than casual examination and use, merit the approba- tion of the profession. H. S. A. Minneapolis, Minn., August 3, 1905. 670708 TABLE OF CONTENTS. CHAPTER I. INTRODUCTORY AND DEFINITIONS. 1. Corporations defined and classified. 2. The classes further distinguished. 3. Quasi public corporations defined. 4. Public and private corporations distinguished. 6. Public corporations classified. The state as a corporation. 6. Definition of a public corporation. 7. Definition of a municipal corporation. 8. Public quasi corporations defined and distinguished from munic- ipal. CHAPTER II. CORPORATE LIFE AND EXISTENCE. [. CREATION AND DISSOLUTION OF CORPORATIONS. 9. The power to create a public corporation. 10. As existing in the national government. 11. The states and their power to create. 12. The exercise of the power. 13. Conditions precedent; population. 14. Conditions precedent; area and physical characteristics. 15. Mode of creation. By prescription. 16. By implication. .17. By affirmative action. 18. Petition and notice. The petition. The notice. 19. The election. 20. Subsequent official action. 21. Incorporation without an election. 22. The charter of a public corporation and its legal nature. VJii TABLE OF CONTENTS. 23. Rules of construction. 24. The charter considered as evidence. 26. Acceptance. 26. Distinction between a public quasi and a municipal corporation in this regard. 27. Amendment of the charter. 28. By implication or indirection. 29. Effect of amendments. 30. Repeal of charter. 31. Effect of repeal. 32. Corporate existence, and the doctrine of collateral attack. 33. The dissolution of the corporation and its effects. 34. Forfeiture of charter. II. TERRITORIAL CHANGES AND THEIR EFFECT. 35. Boundaries; their enlargement. Other necessary acts and proceedings. 36. Location or character of territory annexed. 37. Petition for annexation. 38. Notice necessary. 39. Objections to annexation. 40. Official declaration and right of appeal. 41. Effect of annexation upon ihose concerned. 42. Division of public corporations and the authority. 43. Character of the district divided or disconnected. 44. Mode of division, with official declarations. 45. Effects of annexation or division upon public property and lia- bilities. 46. Division or adjustment of debts and liabilities. 47. The legal authority; where existing. 48. Agency for apportionment. 49. Character or form of indebtedness. 50. Division of assets. 61. Agency for division of assets. III. CORPORATE NAME AND BOUNDARIES. 52. Existence of a public corporation. 53. Name of the corporation 54. The seal and its use. 55. Corporate boundaries. 56. Definition of corporate boundaries. 67. Corporate boundaries; how established. 58. Boundary lines; agency for their establishment. 69. Proceedings for the establishment of corporate boundaries and miscellaneous matters in connection therewith. TABLE OF CONTENTS. i x 60. Objections to the establishment of corporate boundaries. 61. Location of corporate boundaries. 62. Appeal from order fixing corporate boundaries. 63. Change of corporate boundary. 64. Judicial recognition. 65. Effect of the establishment or change of a boundary line. 66. Seat of government. 67. Original location of a county seat. 68. Removal of a county seat. 69. Petition for removal. 70. Its form, and averments. 71. Petition and its signers. 72. Signers' right of withdrawal. 73. Petition for removal; its filing. Notice. 74. Official action. 75. Time and manner of election. 76. Qualifications of voters. 77. Votes necessary to a removal. 78. Canvass and return of votes. 79. Contests. 80. Authority of commissioners. 81. Declaration of the result and its effect. CHAPTEK III. LEGISLATIVE POWER OVER PUBLIC CORPORATIONS AND ITS LIM- ITATIONS. 82. In general. 83. Legislative control over public funds. 84. Power of the legislature over public revenues. 85. Legislative control over corporate boundaries 86. Over municipal boundaries. 87. Legislative power over public property. 88. Over corporate contracts. 89. Legislative control ever trust property held by public corpora- tions. 90. The power of the legislature to compel the payment of debts. 91. Retention of jurisdiction. 92. Constitutional limitations on legislative power. 93. Limitations on the passage of what is termed "special legisla- tion." 94. Constitutionality of laws classifying public corporations. 95. Other constitutional objections. 96. The impairment or destruction of vested rights as a limitation. 97. Control over the corporation in its private capacity. TABLE OF CONTENTS. CHAPTER IV. CORPORATE ELECTIONS. \ 98. Corporate elections. 99. Notice. 100. Time and place of holding. 101. The town meeting; its powers. 102. Its powers, continued. 103. Purpose for which held; levy of taxes; election of officers. 104. The town meeting; right and authority for holding. 105. Officers and their duties. 106. Voters and their qualifications. 107. Miscellaneous matters. CHAPTER V. THE POWERS OF PUBLIC CORPORATIONS. I. IN GENERAL 108. General powers. 109. Implied. To enact ordinances. Public offices. To acquire and hold property The police power. Miscellaneous implied power. 110. Discretionary and imperative powers. Their exercise 111. Corporate powers; their extent and nature. 112. Their delegation. 113. Rules of construction. 114. Rule of strict construction; how modified. II. THE POLICE POWER. 115. Definitions. 116. General limitations upon its exercise. 117. Constitutional limitations. 118. The preservation of public health. 119. Public agencies for the preservation of health. 120. Boards of health; their jurisdiction and powers. Vaccination. 121. Their liability. 122. Quarantines and quarantine regulations. TABLE OF CONTENTS. xi 123. Police power respecting the regulation of occupations. 124. Inspection of foods. 125. Regulations as to the construction and use of buildings. 126. Regulation and abatement of nuisances. 127. The protection of public morals. 128. Regulations controlling or suppressing gambling. 129. The police power; further illustrations of its exercise. 130. The exercise of the police power in regulating the sale and consumption of intoxicating liquors. 131. The police power; miscellaneous illustrations of Its valid ex- ercise. 132. The exercise of the police power continued; the exaction of license fees. 133. The exercise of the police power; further Illustrations. 134. Establishment of public markets. 135. Public markets; the power to regulate. 136. The right to authorize private markets. 137. The control of nuisances. 138. Their abatement and removal. 139. Objections to the removal or abatement of nuisances. III. THE POWEB TO INCUR INDEBTEDNESS OTHEB THAN BY THE ISSUE OF BONDS. 140. The corporate power to incur indebtedness. 141. Must be expressly given; It cannot be implied. 142. To what extent discretionary if expressly given. 143. Implied power of the courts to compel the payment of debts. 144. Manner of its exercise; body authorized. 145. The power limited by the purpose or use of funds to be raised. 146. The construction of buildings a public purpose. 146a. Illustrations of a "public purpose" continued; the support of the poor; water supply. 146b. "Public purposes" continued; light. 147. The construction of internal improvements. (a) In general. (b) Railway aid. 148. Express limitations on power to incur indebtedness. 149. Same subject continued. 150. Retroactive effect of limitations. 151. Construction of statutory and other limitations. 152. Definition of the word "indebtedness" or "debt" as used In lim- iting laws. 153. Indebtedness must be a legal demand. 154. Debts of territorially co-existing public corporations. 155. Assessment or valuation to be considered. 156. Indebtedness further defined; warrants issued in anticipation of taxes levied. xii TABLE OF CONTENTS. 157. Expenses incurred in excess of current revenue or income. 158. Net debt; deduction of uncollected taxes. 169. Future payments under executory contracts not usually regard- ed as "debts." 160. Unearned interest not considered a "debt." 161. Deduction of assets to determine net debt. 162. Corporate indebtedness; its payment from a special fund. 163. Its payment through the levy of taxes. 164. Manner of levying taxes. 165. Provision for payment at time debt was incurred. 166. Debt; mode of payment. 167. Time and place of payment. 168. Enforcement of a debt by action. IV. THE POWER OF PUBLIC COBPOBATIONS TO INCUB INDEBTEDNESS THBOUGH THE ISSUE OF NEGOTIABLE SECUBITIES. 169. Power to issue negotiable securities. (a) Must be expressly given. (b) De facto corporate existence necessary. 170. The power to issue must be expressly given; it cannot be im- plied. 171. Ratification of void issue of negotiable bonds. 172. The issue of bonds; their purpose. 173. Refunding bonds. . 174. Obligations issued for the purpose of funding a bonded in- debtedness. 175. The issue of negotiable securities for the construction or im- provement of highways. 176. The construction of municipal lighting plants. 177. To secure a water supply. 178. Railway aid securities. 179. Construction of drains and sewers. 180. The construction of bridges. 181. The erection of public buildings. 182. For making local improvements. 183. Internal improvements. 184. The power to issue and the conditions precedent to its exer- cise. 185. Performance of conditions precedent required of railwaj com- panies. 186. Conditions precedent to issue. (a) The notice or order for an election. (b) Its form. (c) Its service. 187. Petition. 188. The calling of an election by ordinance. 189. The election. TABLE OF CONTENTS. 190. Questions not necessary for submission to the electors. 191. The election; time and manner of holding. 192. Voters and their qualifications. 193. Canvass of election returns. 194. Necessary votes. 195. Negotiable securities; delivery. 196. Necessity for registration. 197. Official signatures and seals. Sealing. 198. Form. Times of issue and maturity. Rate of interest. 199. Recitals of authority. 200. The ratification of void securities. 201. Negotiable bonds; their validity. 202. As affected by adverse decisions of a state court. 203. Validity of issue in excess of legal authority. 204. Legality as affected by subsequent legislation. 205. Securities of public corporations; their legal character. 206. Validity of negotiable securities. The doctrine of estoppel. 207. The same subject. 208. Estoppel through the payment of interest. 209. The doctrine of recitals. The decisions of state courts upon questions of commercial law not controlling. 210. Estoppel not applying to recitals of law. 211. Distinction between power to issue and irregularity in its exer- cise. 212. The doctrine as applied to bonds containing no recitals of au- thority. 213. Bona fide holder. 214. Coupons; their legal character. 215. Time and place of payment. 216. Negotiable securities; sale. 217. Their payment. 218. Time of payment 219. Medium of payment. 220. To whom payable. 221. The payment of interest. 222. The rule as to the payment of void bonds. 223. Payment of securities through provisions for a sinking fund. 224. The duty to levy taxes for the payment of interest or principal of negotiable bonds. 225. Rights of a holder to maintain an action. x iv TABLE OF CONTENTS. V. WARRANTS AND MISCELLANEOUS EVIDENCES OF INDEBTEDNESS. 226. Warrants; definition; by whom drawn. 227. Fund from which payable. 228. Formal issue. 229. Audit and allowance of claims as preliminary to issuance. 230. Their legal character. 231. Form. 232. Wording. 233. Validity. (a) In general. (b) Warrants invalid because of purpose for which issued. (c) Invalidity resulting from character. (d) Refunding. 234. Interest payable. 235. Actions on warrants. 236. Their payment. 237. Presentation for payment. 238. Payment; the amount. 239. Manner of payment. 240. Time of payment. 241. To whom payable. 242. Miscellaneous forms of indebtedness. 243. The same subject; legal character. 244. Form and phraseology. 245. Mode and time of payment. VI. THE POWER TO CONTRACT. 246. In general. 247. The implied power to contract. 248. Ultra vires contracts. 249. For want of authority. 250. Because of purpose or result. 251. Contracts protected by constitutional provisions. 252. Contracts ultra vires because of constitutional provisions. 253. The same subject continued. 254. Contracts ultra vires because contravening some exclusive right. 255. Contracts ultra vires because of a beneficial interest resulting to the public officers executing them. 256. Contracts ultra vires because of fraud or bribery. 257. Contracts ultra vires because extending beyond official term. 258. Ultra vires contracts; their enforcement. 259. Availability of the doctrine of estoppel. 260. Contracts; their formal execution. 261. Presumption of legality. 262. Mode of contracting; letting to the lowest bidder. TABLE OF CONTENTS. xv 263. Acceptance of bids. 264. Rejection of bid. 265. Notice. 266. Specifications of services or supplies required. 267. Discretionary power in officers to reject or accept bids. 268. The same subject continued. 269. Discretionary power of officials to award to lowest bidder or otherwise. 270. Change of contract. 271. Parties to the proceedings. 272. Conditions imposed. 273. Contracts; how made; in writing. 274. How made; orally. 275. By whom made. 276. As authorized by legislative bodies. 277. Contracts made by departments. 278. Made by public officials. 279. The ratification of an illegal contract. 280. Ratification of a contract Ultra vires. 281. Legislative ratification of ultra vires contracts. 282. Ratification of illegal contracts. 283. Modification of a contract. 284. Avoidance or rescission of contract. 285. Contracts; their construction. 286. Arbitration clauses. 287. Corporate contracts; their performance. (a) In general. (b) Manner of performance. (c) Time of performance. (d) Other conditions. (e) Performance by the public corporation as a party to the contract. 288. A contract; its performance; acceptance of work. 289. Fraud as rendering a contract invalid. 290. The right of the parties to maintain an action based upon a contract. 291. Delay in the performance of a contract. 292. The assignment of a contract. 293. Rights of parties. 294. Payment of contract obligations. 295. Extras. 296. Public contracts; actions. 297. Bond required of contractors. 298. Rights of sureties. 299. Subcontractors. xvi TABLE OF CONTENTS. CHAPTER VI. PUBLIC REVENUES; THEIR COLLECTION AND DISBURSEMENT. I. TAXATION. 300. Definition and nature. 301. Municipal power to tax. 302. The authority. 303. Limitations upon the power. (a) Limitations as to rate or amount. (b) Limitations as to purpose. 304. Purpose of taxation. (a) Railway aid. 305. The payment of debts. (a) Of judgments. (b) Of bonds and interest. (c) Obligatory payments on contracts. (d) The payment of warrants and claims. S06. Taxation for the support of public schools. 307. School taxes; amount required. 308. Diversion of funds. 309. The construction of roads. 310. The levy of taxes for the establishment or maintenance of plants for the supply of water and light. 311. The exercise of the power. 312. The authority to tax and upon what based. 313. Exemptions. (a) Public property exempt. (b) Other exemptions. (c) Contract exemptions. (d) Exemptions arising because of purpose for which prop- erty is used. 314. Taxes; their levy and assessment. 315. Basis or authority for tax levy. 316. Agency of tax levy. 317. Apportionment of taxes. 318. Tax levies; preliminary proceedings. 319. Mode of levy and assessment. 320. Loss of power. 321. Errors in proceedings. 322. The power; when exercised. 323. The duty obligatory. 324. Equalization of tax levies. 325. Taxpayers' rights. 326. Lien and priority. 327. Collection of taxes. Personal liability. TABLE OF CONTENTS. xvii 328. Actions; questions raised. (a) The same subject. 329. Use of proper remedy by taxpayers to prevent collection of illegal taxes. 330. Compromise of taxes. 331. Right to prescribe and collect penalties. 332. Irregularities. 333. Enforcement of lien. 334. Summary proceedings. 335. The payment of taxes. To whom and when. 336. Their refunding. II. Special Assessments. 337. Definition and explanation of the term. 338. The exercise of the power to levy. (a) The power a continuing one. (b) Cannot be delegated. 339. Limitations upon the power. 340. Purpose for which exercised. (a) What not considered local improvements. (b) What regarded as local improvements. 341. Extent of exercise. Discretionary power of municipal authorities to make im- provements. 342. Discretionary power with reference to locating limits of taxing district. 343. Property subject to local assessments. (a) Statutory exemptions. (b) Contract exemptions. (c) Exemption from local assessment because of use by com- mon carriers. (d) Property exempt because of its location. (e) Public property; when exempt. 344. The manner of determining local assessments; conversely; benefits. 345. According to frontage. 346. Assessment based upon location. 347. Levy based upon ascertained benefits. (a) Ascertainment of benefits. (b) Appeal from appraisal of commissioners. (c) Right of appeal. 348. What considered as benefits. Illustrations of benefits. 349. Levy based upon area or comparative value of property. 350. Individual liability. 351. Estoppel of taxpayer. 352. Place of assessment. S53. Acquiring jurisdiction; preliminary proceedings. 354. Same subject continued. xv iii TABLE OF CONTENTS. 355. Execution of a contract. 356. Preliminary investigation or estimates. 357. Same subject continued. 358. Jurisdiction acquired through the introduction and passage of an ordinance. (a) Legality of ordinances. (b) Form. (c) A local improvement ordinance must be reasonable. 359. Resolutions. 360. Petition by property owners. (a) Petition not necessary where cost is paid from general funds. 361. Declaration of necessity. 362. Construction of the improvement. 363. Notice to property owners. 364. When given. 365. How given and to whom. 366. Result of a failure to give notice. 367. Variance of proceedings from notice given. 368. Benefits the basis of assessment. 369. Presumption of validity. 370. Estoppel of public corporations. 371. Form of reports, assessment rolls and other necessary papers. 372. Opportunity for investigation and examination. 373. The right of correction and review. 374. Parties to appeal proceedings. 375. Review by the courts. 376. Review by other bodies. 377. The right of appeal or review; manner and time of exercise. 378. Collusiveness of decision. 379. Review and correction. 380. What questions raised on appeal and review. 381. Estoppel of property owner. (a) By laches. (b) By course of action. 382. The same subject; propositions negatively stated. 383. Right of appeal as based on omission to tax other property. 384. Excessive assessment. 385. Judicial confirmation of an assessment roll. 386. Reassessment or supplemental assessment. 387. Curative legislation. 388. Collateral attack. 389. Lien and priority of special assessments. 390. The same subject continued. 391. Collection of special assessments. 392. Manner and amount of collection. 393. Same subject; summary proceedings. 394. Time of collection. TABLE OF CONTENTS. x { x 395. The rights of property owners. 396. Personal liability. 397. Recovery of invalid assessments. ANALYSIS OF VOLUMES TWO AND THREE. (For detail see those volumes.) Chapter VI. PUBLIC REVENUES; THEIR COLLECTION AND DISBURSE- MENT (Cont'd.). III. LICENSE FEES AND POLL TAXES. IV. THE DISBURSEMENT OF PUBLIC REVENUES. VII. GOVERNING BODIES. I. LEGISLATIVE. II. EXECUTIVE. III. JUDICIAL. VIII. PUBLIC OFFICE AND OFFICERS. I. COMMENCEMENT AND NATURE OF OFFICIAL LIFB. II. TERMINATION OF OFFICIAL LIFE. III. POWERS, DUTIES, AND RIGHTS. IX. PUBLIC PROPERTY. I. ITS ACQUIREMENT. II. ITS CONTROL AND USE. III. ITS DISPOSITION. X. LIABILITY OF PUBLIC CORPORATIONS FOR NEGLIGENCE. XI. SOME PUBLIC DUTIES. I. EDUCATIONAL. II. CHARITABLE AND CORRECTIVE. XII. ACTIONS BY AND AGAINST PUBLIC CORPORATIONS. MUNICIPAL CORPORATIONS. CHAPTER I. INTRODUCTORY AND DEFINITIONS. 1. Corporations defined and classified. 2. The classes further distinguished. 3. Quasi public corporations defined. 4. Public and private corporations distinguished. 5. Public corporations classified. 6. Definition of a public corporation. 7. Definition of a municipal corporation. 8. Public quasi corporations defined and distinguished from municipal. 1. Corporations defined and classified. The idea that an association or combination of natural persons, or things, may possess powers and properties distinct and differ- ent from, as well as some in common with, natural persons, has been a necessary and a favorite one in all systems of jurispru- dence. One 'of the divisions, therefore, found in the earliest known codified law, is that of persons into natural and juridical, the lat- ter including that "artificial person" existing only in contempla- tion of law, the logical sequence of existing conditions ; and since that time all systems have recognized this artificial person. The definition of a corporation most widely known and quoted is that of Chief Justice Marshall in the Dartmouth College Case : "A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its very existence. These are such as are supposed best calculated to effect the object for which it was created. Among the most im- portant are immortality, and, if the expression may be allowed, Abb. Corp. 1. 2 INTRODUCTORY; DEFINITIONS. 8 1 o individuality, properties by which a perpetual succession of many persons are considered as the same and may act as a single indi- vidual." 1 Other definitions and descriptions have been given by text- book writers and judges during the course of many years. The definition above has been criticised as being a description rather than a definition, but it is, as stated, without doubt the best known and one of the clearest. 8 The definition prepared by Austin Abbott for the Century Dic- tionary is concise in its terms: A corporation is ''an artificial person created by law, or under authority of law, from a group or succession of natural persons, and having a continuous exist- ence irrespective of that of its members, and powers and liabili- ties different from those of its members." Some of the characteristics of a corporation as compared with a natural person are suggested by the definition of Chief Justice Marshall, and include, as the most important, the idea of immor- tality. The corporation exists for the time limited in the charter irrespective of the individual lives of those who may compose it ; its powers and rights, its duties and obligations, remaining the same, though its members may be constantly changing. It is a legal person distinct from its members. The second characteristic worthy of note in the present discus- sion is that, while in a corporation, in the absence of statutory or constitutional provisions, the members are not personally liable for corporate debts, in a partnership that other association of persons each member is individually liable for the debts of the firm ; and natural persons sui juris are liable to the fullest extent for debts contracted by them. A late authority says: "The only characteristic which in all cases distinguishes a corporation from unincorporated associations is the merging of the individuals who compose the corporation into a distinct artificial existence. If 1 Trustees of Dartmouth College Wend. (N. Y.) 71; Sir James v. Woodward, 4 Wheat. (U. S.) 636. Smith's Case, 4 Mod. 52; Fietsam 2 Falconer v. Campbell, 2 McLean, v. Hay, 122 111. 293; Liverpool Ins. 195, Fed. Cas. No. 4,620; Gregg v. Co. v. State of Massachusetts, 77 Sanford, 65 Fed. 154; Andrews U. S. (10 Wall.) 566; People v. As- Bros. Co. v. Youngstown Coke Co., sessors of Watertown, 1 Hill (N. 86 Fed. 585; Levee Inspectors of Y.) 620; In re Gibbs' Estate, 157 Chicot County v. Crittenden, 94 Pa. 59; 1 Kyd, Corp. 70; Bouvier, Fed. 616; Thomas v. Dakin, 22 Law Diet. "Corporations;" 1 Clark 8 1 INTRODUCTORY; DEFINITIONS. 3 O * ** this feature exists, an association is a corporation, but not other- wise. An association does not become a corporation merely be- cause it is so called; nor, on the other hand, is it any the less a corporation because it is not so called. Whether it is a corpora- tion depends upon the powers and faculties conferred upon it." The occasion of the creation of a corporation is chiefly for the resulting convenience, economy, unity and continuity in the transaction of business or management of property. Certain pow- ers and functions can be exercised better by an artificial body than natural persons; and the state or sovereign may better ex- ercise over this collective body, this artificial person, its rights of control and regulation, than over a number of individuals. Great and advantageous economies in business can be effected by combinations of energy and capital. As indicative of the view taken of corporations by business men, the definition of the late Jay Gould is interesting. He describes a corporation as "a body 'of men who unite, associate, and con- centrate their ability, capital and intelligence in the undertaking of a work, great or small, which any one of them would indi- vidually be unwilling to undertake. If there are losses, they agree to bear each his proportion ; if there are profits, they agree to di- vide them." This definition, as will be seen later, applies more strictly to a private corporation. 3 Corporations have been classified according to the functions which they may perform, their purpose of creation, the number of members comprising them, or upon the element of capital stock. The only classification which concerns the present work is that first suggested, namely, the division based upon functions per- formed. This was broadly suggested in the Dartmouth College Case in the opinion of Justice Story: "Public corporations are generally esteemed such as exist for public political purposes only, such as towns, cities, parishes, and counties; and in many re- spects they are so, although they involve some private interests. But strictly speaking, public corporations are such only as are founded by the government for public purposes, where the whole interests belong also to the government."* & M. Private Corp. 1; 1 Thomp- s Taylor, Corp. 23 et seq. son, Corp. 1 et seq.; vol. 7, * Trustees of Dartmouth College 8140; Angell & A. Corp. (llth Ed.) v. Woodward, 4 Wheat. (U. S.) 30 et seq.; Bl. Comm. Book IV., 668. 18; Standard Diet. "Corporation." 4 INTRODUCTORY; DEFINITIONS. ] The basis of the classification arises from a difference in the nature of the duties required and powers exercised, and has ex- isted since the first recognition of artificial persons by the sover- eign. This division or classification is that of public and private. In a California case, 5 Chief Justice Sawyer in writing the opin- ion said in defining a corporation and discussing its nature: ' ' So, also, there are several classes of corporations, such as public municipal corporations, the leading object of which is to promote the public interest; corporations technically private, but yet of a quasi public character, having in view some great public en- terprise, in which the public interests are directly involved to such an extent as to justify conferring upon them important governmental powers, such as an exercise of the right of eminent domain. Of this class are railroad, turnpike, and canal compa- nies ; and corporations strictly private, the direct object of which is to promote private interests, and in which the public has no concern, except the indirect benefits resulting from the promotion of trade, and the development of the general resources of the country. They derive nothing from the government, except the right to be a corporation, and to exercise the powers granted. In all other respects, to the extent of their powers, they stand upon the footing of natural persons, having such property as they may legally acquire, and holding and using it ultimately for the exclusive benefit of the stockholders. In this last class, the stockholders, and those dealing with the corporation are the only parties directly and immediately interested in their acts, so long as the corporation confines itself within the general scope of its powers. The rights of the corporation, the corporators, and of strangers dealing with the corporation, may, in some respects, vary according to the circumstances surrounding a given trans- action." The California Code, sec. 284, provides, "Corporations are either public or private ; public corporations are formed or organized for the government of a portion of the state ; all other Miners' Ditch Co. v. Zellerbach, stead v. Town of Hempstead, 2 37 Cal. 543, 577; McLoud v. Selby, Wend. (N. Y.) 109; Com. v. Green, 10 Conn. 390; Herbert v. Benson, 2 4 Whart. (Pa.) 531, 598; Cole v. La. Ann. 770; Police Jury of Bos- East Greenwich Fire Engine Co., 12 Bier v. Shreveport Corp., 5 La. Ann. R. I. 202; Appleton v. Water Com'rs 661; Andrews v. Estes, 11 Me. 267; of New York, 2 Hill (N. Y.) 432; Gaskill v. Dudley, 47 Mass. (6 1 Thompson, Corp. p. 19. Mete.) 546; Town of North Hemp- 2 INTRODUCTORY; DEFINITIONS. 5 corporations are private." The weight of authority and the most recent cases endorse the classification by Chief Justice Saw- yer given above. 2. The classes further distinguished. The distinction between the three classes named in the last section is perhaps sufficiently given in the definitions referred to ; but a further and short discussion of substantial differences may not be out of place. Chief Justice Marshall, in the Dartmouth College Case, in reply to the argument advanced that a private corporation may affect the public interest, or the transaction of its business may result to the advantage or the benefit of the public, and therefore should be considered a public corporation, states: "The objects for which a corporation is created are universally such as the govern- ment wishes to promote. They are deemed beneficial to the coun- try, and this benefit constitutes the consideration, and in most cases the sole consideration, of the grant. * * * The ben- efit to the public is considered as an ample compensation for the faculty it confers, and the corporation is created. If the advan- tages to the public constitute a full compensation for the faculty it gives, there can be no reason for exacting a further compensa- tion by claiming a right to exercise over this artificial being a power which changes its nature, and touches the fund, for the security and application of which it was created. There can be no reason for implying, in a charter given for a valuable consid- eration, a power which is not only not expressed, but is in direct contradiction to its express stipulations." 6 The mere fact, then, that a private corporation transacts busi- ness affecting the public interests or of a public nature, does not necessarily change its character; neither does the fact that the state may own shares of stock, or all the stock, of such corpora- tion. 7 s Trustees of Dartmouth College Bank of Arkansas, 4 Ark. 620; v. Woodward, 4 Wheat. (U. S.) 637, State Bank v. Clark, 8 N. C. (1 638. Hawks) 36; State Bank v. Gibbs, 7 Bank of U. S. v. Planters' Bank 3 McCord (S. C.) 377; Hutchinson of Georgia, 9 Wheat. (U. S.) 904; v. Western & A. R. Co., 53 Tenn. Bank of Alabama v. Gibson's (6 Heisk.) 634. Adm'rs, 6 Ala. 814; Mahony v. 6 INTRODUCTORY; DEFINITIONS. 4 In discussing the difference between a quasi corporation and an assembly, Chief Justice Gibson says in substance: "A quasi cor- poration is one created by law for convenience, having capacity to sue and be sued, with the power of corporate succession." 8 3. Quasi public corporations defined. Public corporations are agencies of the state ; and quasi public corporations are private corporations in all their essential charac- teristics, but so affecting the interests of the public in the transac- tion of their business as to give to the state the right, subject to charter provisions, 9 to interfere with or control their manage- ment and operation to a greater extent than usual with private corporations. The doctrine announced was not held squarely in the Munn Case because unnecessary, but it is one of the earliest and best cases on this point, as its broad assertion of the right of public control has undoubtedly influenced courts everywhere in their conclusions in cases where the question has squarely arisen. The other cases cited are little more than an application of the Munn doctrine and directly involve the point discussed. The announcement of the doctrine of public control in the Munn Case did not contain any limitations upon its exercise. The pow- er, however, is not one which can be exercised by the state un- restrained, but due regard must be had for constitutional provi- sions protecting property and vested rights. The power of public control is not synonymous with the right of confiscation. The later cases decided by the supreme court 'of the United States, while not lessening the weight of the Munn Case as an authority upon the right of public control, emphatically assert the princi- ples just suggested. The Reagan and Smyth Cases are especial- ly instructive in this respect. 4. Public and private corporations distinguished. The rights and powers, the duties and obligations, of a public corporation, as compared with those of a private corporation, are Com. v. Green, 4 Whart. (Pa.) Stone v. State of Mississippi, 101 631, 598. U. S. 814; Reagan v. Farmers' Loan Munn v. State of Illinois, 94 & Trust Co., 154 U. S. 362; Louis- U. S. 113; Chicago, B. & Q. R. Co. ville & N. R. Co. v. State of Ken- v. State of Iowa, 94 U. S. 155; tucky, 161 U. S. 695; Smyth T. 4 INTRODUCTORY; DEFINITIONS. 7 marked. This is true because of the entirely different purposes for which they are respectively created. A public corporation, as has been said, is an agency of the state, of the sovereign; it is organized to carry out some local political want as auxiliary to the sovereign power; it is a governmental agent created for the benefit of all affected; it is created and exists through the mere will of the legislature as the delegated agency of the sov- ereign and is independent of all contract as between itself and the sovereign. On the other hand, a private corporation is organized primarily for the benefit, generally pecuniary, of its members; for the advantage of the few as compared with the many. This distinction is very clearly and concisely stated in an early deci- sion in North Carolina, where the court say: "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 privileges' upon an artificial body than upon a private citi- zen. The substantial distinction is this : Some corporations are created by the mere will of the legislature, there being no other party interested or concerned. To this body a portion of the power of the legislature is delegated, to be exercised for the pub- lic 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 in- strumentality of a second party. These two parties make a con- tract. 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 ca- pacities. The expectation of benefit to the public is the moving consideration on one side, that of expected remuneration for the outlay is the consideration on the other. It is a contract, and therefore cannot be modified, changed or annulled without the consent of both parties. Counties are an instance of the former, railroad and turnpike companies of the latter, classes of corpora- tions." 10 Ames, 169 U. S. 466; City of Rush- Old Colony R. Co., 160 Mass. 96; ville v. Rushvllle Natural Gas Co., State v. Columbus Gaslight & Coke 132 Ind. 575; Attorney General v. Co., 34 Ohio St. 572. 8 INTRODUCTORY; DEFINITIONS. R 5 6 In another case it is said: "The government of cities and towns, like that of the police jury of parishes, formed one of the subdivisions of the internal administration of the state, and was absolutely under the control of the legislature. * * * The laws which establish and regulate municipal corporations are not contracts, but ordinary acts of legislation, and that the powers they confer are nothing more than mandates of the sovereign power, and that those laws may be repealed or altered at the will of the legislature, except so far as the repeal or change may affect the rights of third persons acquired under them. ' '" The most important difference between public and private cor- porations is that in the one case, as suggested in the North Caro- lina decision, there is but one party to the transaction. No con- tract relation exists as between the inhabitants of the territory organized and the state, and the charter or organization for this territory may be altered, amended or repealed at the pleasure of the sovereign. This is not true, except within certain well-recog- nized legal limitations, in respect to the private corporation. Its charter is a contract, subject only to the law of the land, govern- ing the construction and enforcement of contracts. In the Dart- mouth College Case Chief Justice Marshall uses language often quoted: "The character of civil institutions does not grow out of their incorporation, but out of the manner in which they are formed and the objects for which they are created. The right to change them is not founded on their being incorporated, but on their being the instruments of government created for its purposes. The same institutions, created for the same objects, though not incorporated, would be public institutions, and of course be controlled by the legislature. The incorporating act neither gives nor prevents this control." 12 5. Public corporations classified. There is found upon an examination of the reported cases a classification of public corporations based upon fundamental 10 Mills v. Williams, 33 N. C. (11 Co. v. Metcalfe, 61 Ky. (4 Mete.) Ired.) 558; Bush v. Shipman, 5 199. 111. (4 Scam.) 186; Doane v. Chi- Police Jury of Bossier v. cago City R. Co., 51 111. App. 353; Shreveport Corp., 5 La. Ann. 661; School Town of Monticello T. Ken- People v. McFadden, 81 Cal. 489; dall, 72 Ind. 91; Bardstown & L. R. Kahn v. Sutro, 114 Cal. 316. g 5 INTRODUCTORY; DEFINITIONS. 9 characteristics and differences, namely, public, municipal and public quasi corporations. 13 These three classes have been generally recognized, though, owing to a confusion of ideas and a failure to comprehend the fundamental reasons for the division, the placing of the same governmental organization in the same class has not been uni- form by the courts. This is not altogether their fault, for different state constitutions and statutes have placed in different classes the same governmental organization. The essential difference be- tween these classes is in the varying power of local action or initiative. This diminishes in passing from public corporations to public quasi corporations, and accompanying this decrease in power is found a corresponding diminution of duty and lia- bility. 14 The state as a corporation. At the common law and in England today, the king is regarded by statute as a corporation sole for the purpose of succession and to preserve the possessions of the crown. In this country, for many purposes, both the state and national governments must be considered as corporations. In a New York case the court said: "A state is a legal being ca- pable of transacting some kinds of business like a natural person, and such a being is a corporation." 15 The United States is a cor- poration, for it may enter into contracts, take, hold and convey property, sue, and, if it consents, be sued. 16 This same truth applies to the different states find territories of the Union. 17 However, in Georgia it was held that a state was not a corpo- ration within the meaning of an act 'of Congress requiring pay- is Trustees of Dartmouth College Dugan v. U. S., 3 Wheat. (U. T. Woodward, 4 Wheat. (U. S.) 638. S.) 172. is Regents of University v. Wil- IT Briscoe v. Bank of Kentucky, 11 Hams, 9 Gill & J. (Md.) 365; People Pet. (U. S.) 257; McDonogh's Ex'rs v. Morris, 13 Wend. (N. Y.) 325; v. Murdoch, 15 How. (U. S.) 367; Penobscot Boom Corp. v. Lamson, Beers v. State of Arkansas, 20 16 Me. 224; Regents of University How. (U. S.) 527; Ter. v. Hilde- T. McConnell, 5 Neb. 423. brand, 2 Mont. 426; People v. As- i* People v. Assessors of Water- sessors of Watertown, 1 Hill (N. town, 1 Hill (N. Y.) 620; State of Y.) 620; Delafield v. State of Illi- Indiana v. Woram, 6 Hill (N. Y.) nois, 2 Hill (N. Y.) 159; Governor 33. v. Allen, 27 Tenn. (8 Humph.) 176; is State of Indiana Y. Woram, 6 Dikes v. Miller, 25 Tex. Supp. 281. Hill (N. Y.) 33. 10 INTRODUCTORY; DEFINITIONS. ment of a duty by "every person, firm, company or corporation owning or possessing, or having the care or management of any railroad, canal, steamboat, ship," etc., "engaged or employed in the business of transporting passengers or property for hire." 18 6. Definition of a public corporation. The term "public corporation" will be used in this work as a generic one, and includes both municipal corporations proper and public quasi corporations. The distinction between the two is difficult of detection at times, varying with the idea as it ex- isted in the mind of the court writing a particular opinion. Broadly speaking, the term "public corporation" may include the state. It certainly includes all public governmental agents or political or governmental subdivisions, whatever their powers or obligations, their rights or their duties, may be, though some of them may n'ot have, strictly speaking, all of the powers and ca- pacities of a corporation. The attributes of a corporation at- tach in a varying degree, and yet they all will be included in the class. Other definitions of public corporations are, "The investing of the people of a place with the local government there- of, " and those found in the other cases cited in the note. 19 A recent text book 20 defines a public corporation as "one that is created for a political purpose with political power to be ex- ercised for purposes connected with the public good in the ad- ministration f civil government. It is an instrument of the government, subject to the control of the legislature, and its mem- bers are officers of the government appointed for the discharge of public duties. In other words a public corporation is a corpo- is State v. Atkins, 35 Ga. 315. 268; Rundle v. Delaware & R. Canal "Cuddon v. Eastwick, 1 Salk. Co., 14 How. (U. S.) 80; State 143; Falconer v. Campbell, 2 Me- Bank of Ohio v. Knoop, 16 How. Lean, 195, Fed. Gas. No. 4,620; (U. S.) 369; Society for Propaga- Dean v. Davis, 51 Cal. 406; Tins- tion of the Gospel v. Town of New man v. Belvidere Delaware R. Co., Haven, 8 Wheat. (U. S.) 464; Bank 26 N. J. Law (2 Dutch.) 148; Ben- of Alabama v. Gibson's Adm'rs, 6 nett's Branch Imp. Co.'s Appeal, 65 Ala. 814; People v. Williams, 56 Pa. 242; 7 Thompson, Corp. 8140; Cal. 647; Reclamation Dist. No. 542 Standard Diet. "Corporation;" Sir v. Turner. 104 Cal. 334; Inhabitants James Smith's Case, 4 Mod. 52; of Yarmouth v. Inhabitants of Trustees for Vincennes University North Yarmouth, 34 Me. 411. v. State of Indiana, 14 How. (U. S.) 20 Clark & M. Private Corp. 31. 7 INTRODUCTORY; DEFINITIONS. H ration created merely for purposes of government, and a private corporation is one that is created for other purposes than those of government." 7. Definition of a municipal corporation. A municipal corporation has been defined by Judge Dillon as "the incorporation by the authority of the government of the in- habitants of a particular place or district, and authorizing them in their corporate capacity to exercise subordinate, specified powers of legislation and regulation with respect to their local and in- ternal concerns. This power of local government is the distinct- ive purpose and the distinguishing feature of a municipal corpo- ration proper." 21 Bouvier defines one as "a public corporation created by gov- ernment for political purposes and having subordinate and local powers of legislation." 22 "A corporation of persons, inhabitants of a particular place, or connected with a particular district, enabling them to conduct its local civil government," is still another definition given. A correct one should also convey the idea that organized territory of itself does not constitute a municipal corporation, but that it includes also the people residing within that district. 23 An excellent descriptive definition is given in a recent work: 24 " Municipal corporations are of a twofold character, the one public as regards the state at large in so far as they are its agents in government ; the other private in so far as they are to provide local necessities and conveniences for their own communities. And the fact that the legislature has blended the public and pri- vate functions of a municipal corporation in one grant of power does not destroy the clear and well settled distinction between them. In its governmental character the corporation is made by the state a local depository of certain limited and prescribed 21 Dillon, Mun. Corp. (4th Ed.) Morris, 13 Wend. (N. Y.) 325; 20. Clarke v. City of Rochester, 24 22 Bouvier, Law Diet. Barb. (N. Y.) 446; City of Philadel- 23 Kelly v. City of Pittsburgh, 104 phia v. Fox, 64 Pa. 180; East Ten- U. S. 78; City of Galesburg v. nessee University v. City of Knox- Hawkinson, 75 111. 152; People v. ville, 65 Tenn. (6 Baxt.) 166. Bennett, 29 Mich. 451; Heller v. 2*20 Am. & Eng. Enc. Law (2d Stremmel, 52 Mo. 309; People v. Ed.) p. 1131, and cases cited. 12 INTRODUCTORY; DEFINITIONS. 8 political powers, to be exercised for the public good of the state. In its proprietary character the theory is that the powers are not conferred chiefly from considerations connected with the govern- ment of the state at large, but for the private advantage of the compact community which is incorporated as a distinct legal per- sonality or corporate individual." 25 8. Public quasi corporations denned and distinguished from municipal. Public quasi corporations have been denned as: "It is uni- versally agreed that all those subdivisions of state territory, such as counties, townships, school districts, and like bodies, which are created by the legislature for public purposes and without regard to the wishes of their inhabitants, are to be included in the class known as 'quasi corporations.' They are in essence local branches of the state government, though clothed with a cor- porate form in order that they may the better perform the duties imposed upon them. Generally they comprise large areas of ter- ritory which are but sparsely settled, and the relations of life and business existing within them are extremely simple. ' ' 26 As illustrating the different legal character assigned to munici- pal or public administrative and political organizations, see the cases below. 27 25 State v. Denny, 118 Ind. 449; sex County v. Strader, 18 N. J. Law Soper v. Henry County, 26 Iowa, (3 Har.) 108; Cooley, Const. Lim. 264; Marion County Com'rs v. 247. Riggs, 24 Kan. 257; City of Well- 2- A fire district organized under ington v. Wellington Tp., 46 Kan. Pub. St. Mass. c. 35, 40-61, a 213; Parker v. Scogin, 11 La. Ann. quasi corporation. Praut v. In- 629; Small v. Inhabitants of Dan- habitants of Fire Dist. in Pittsfield, ville, 51 Me. 359; People v. Com- 154 Mass. 450. mon Council of Detroit, 28 Mich. A fire district a quasi corporation. 228; Hamilton County Com'rs v. Wood v. Quimby, 20 R. I. 482, 40 Mighels, 7 Ohio St. 109; Lehigh Atl. 161. Water Co.'s Appeal, 102 Pa. 515; Board of park commissioners a Atkins v. Town of Randolph, 31 Vt. quasi public corporation. West 226. Chicago Park Com'rs v. Western 2 Williams, Mun. Liab. Tort, 2, Union Tel. Co., 103 111. 33. See, citing El Paso County Com'rs v. also, as holding such board a munic- Bish, 18 Colo. 474; White v. Chowan ipal corporation, the case of West Com'rs, 90 N. C. 437; Hamilton Chicago Park Com'rs v. City of County Com'rs v. Mighels, 7 Ohio Chicago, 152 111. 392. St. 109; Chosen Freeholders of Sus- An irrigation district a public 8 INTRODUCTORY; DEFINITIONS. 13 A corporation possesses certain rights and powers, and there may be imposed upon it by the sovereign certain duties and obli- gations. Between the two classes of public corporations under discussion a marked difference is found in these respects. This follows from various causes, one of which is the fact that as a rather than a municipal corpora- Carolina v. Maultsby, 43 N. C. (8 tion. Directors of Fallbrook Irr. Ired. Eq.) 257; Trustees of Uni- Dist. v. Abila, 106 Cal. 355; Direc- versity v. Winston, 5 Stew. & P. tors of Alfalfa Irr. Dist. v. Collins, (Ala.) 17. 46 Neb. 411. The governor of a state as the Boards of Health in N. Y. not cor- head of the executive department a porations with power to sue and be quasi corporation. Governor v. sued. Gardner v. Board of Health Allen, 27 Tenn. (8 Humph.) 176. of New York, 10 N. Y. (6 Seld.) A county held not a corporation 409; People v. Monroe County within the meaning of an act giv- Sup'rs, 18 Barb. (N. Y.) 567. ing corporations the power of fund- Water Commissioners appointed ing their indebtedness. Pulaski under New York Laws of 1834, c, County v. Reeve, 42 Ark. 54. 256, not a corporation. Appleton v. A county not a corporation for Water Com'rs of New York, 2 Hill municipal purposes. San Mateo (N. Y.) 432. County v. Coburn, 130 Cal. 631, 63 Highway Commissioners a quasi Pac. 78, 621. corporation. Lange v. Soffell, 33 A county held a corporation un- 111. App. 624; Town of Denver v. der eminent domain provision in Myers, 63 Neb. 107, 88 N. W. 191; the constitution. Chester County Road Com'rs for St. Peter's Parish v. Brower, 117 Pa. 647, 12 Atl. 577. v. McPherson, 1 Spears (S. C.) 218. Generally not a municipal corpora- A board of trustees organized to tion. In re College Ave. Bridge, 9 construct and operate a canal for Pa. Dist. R. 15. A public corpora- commercial purposes, and supply- tion. Maury County v. Lewis ing power, heat and light, held not County, 31 Tenn. (1 Swan) 236. A a municipal corporation. State v. municipal corporation within Laws Douglas County Com'rs, 47 Neb, Wis. 1895, c. 138; Lund v. Chippewa 428, 66 N. W. 434. County, 93 Wis. 640, 67 N. W. 927. Board of supervisors of a county, Counties quasi corporations only, as such board and apart from coun- Granger v. Pulaski County, 26 Ark. ty, held not a corporation. Boyce 37; Ray County v. Bentley, 49 Mo. v. Cayuga County Sup'rs, 20 Barb. 236; Laramie County Com'rs v. Al- (N. Y.) 294. bany County Com'rs, 92 U. S. 307; Judges authorized to take bonds, People v. Sacramento County Sup'rs, held as to such bonds not to confer 45 Cal. 692. a corporate character. Justices of A county a corporation, but people Cumberland v. Armstrong, 14 N. within it not. People v. Myers, 15 C. (3 Dev.) 284. Cal. 33. A state university is a public County of Sacramento not a corporation. University of North municipal corporation. People v. 14 INTRODUCTORY; DEFINITIONS. g 8 rule the government of a public quasi corporation is imposed by the sovereign upon the people residing within certain geo- graphical limits, without consulting their desires or wishes. On the other hand, the government or charter of a municipal corpora- Sacramento County Sup'rs, 45 Cal. nicipal nor private corporation, but 692. a governmental agent. People v. A county a public corporation, Levee Dist. No. 6, 131 Cal. 30, 63 Coles v. County of Madison, 1 111. Pac. 342-676. (Breese) 154; but a mere quasi The Tennessee statutes creating corporation in Goodnow v. Ramsey taxing districts do not make them County Com'rs, 11 Minn. 31 (Gil. municipal corporations. Williams 12); Hannibal & St. J. R. Co. v. v. Taxing Dist. of Shelby County, Marion County, 36 Mo. 294; Rear- 84 Tenn. (16 Lea) 531. don v. St. Louis County, 36 Mo. 555; A township a quasi corporation. Schweiss v. First Judicial Dist. Ct., Town of Valverde v. Shattuck, 19 23 Nev. 226, 45 Pac. 289; Donalson Colo. 104, 34 Pac. 947; Sebrell v. T. San Miguel County, 1 N. Mex. Fall Creek Tp., 27 Ind. 86. A mu- (1 Gild.) 263. nicipal corporation. Sprague v. County commissioners in Ohio a Baldwin, 18 Pa. Co. Ct. R. 568; continuing corporation. Scioto State v. Douglas County Com'rs, 47 Com'rs v. Gherky, Wright (Ohio) Neb. 428. 493. A borough a public municipal A county a municipal corporation corporation. Borough of Ridley for the issuance of bonds. Ter. v. Park v. Citizens' Elec. Light & Hopkins, 9 Okl. 133. Power Co., 9 Pa. Super. Ct. 615; County commissioners a quasi Borough of Lansdowne v. Delaware corporation. Vankirk v. Clark, 16 County & P. Elec. R. Co., 9 Pa. Serg. & R. (Pa.) 286; Irwin v. Super. Ct. 621. Northumberland County Com'rs, 1 Definition of a town. Murray v. Serg. & R. (Pa.) 505; Lyon v. Menefee, 20 Ark. 561. Adams, 4 Serg. & R. (Pa.) 443. Certain towns in Connecticut Counties held corporations in created corporations by the Consti- Kentucky. May v. Mercer County, tution. Webster v. Town of Har- 80 Fed. 246. In Ohio. May v. Lo- winton, 32 Conn. 131. gan County Com'rs, 30 Fed. 250. In A town a public quasi corpora- Nevada under the constitution tion. People v. Village of Harvey, municipal corporations. Vincent v. 142 111. 573, 32 N. E. 295; In- Lincoln County, 30 Fed. 749. In habitants of Fourth School Dist. v. California. Nash v. El Dorado Wood, 13 Mass. 193; Shronk v. Penn County, 24 Fed. 252. Tp. Sup'rs, 3 Rawle (Pa.) 347; A board of levee inspectors a Hopple v. Trustees of Brown Tp., municipal corporation. Levee In- 13 Ohio St. 311; Woodruff v. Town spectors of Chicot County v. Grit- of Glendale, 23 Minn. 537. tenden, 94 Fed. 613, 36 C. C. A. The word "town" held to be a 418. generic term including cities: Van A levee district is neither a mu- Riper v. Parsons, 40 N. J. Law, 1; INTRODUCTORY; DEFINITIONS. 15 tion proper is usually suggested by the sovereign and adopted or accepted by the people residing within a certain district. The fact that the government or organization is imposed in the one case and adopted or accepted in the other leads to the correlative part of the proposition, namely, the relative duties and obliga- Whitall v. Chosen Freeholders of Gloucester County, 40 N. J. Law, 302. Towns regarded as public quasi corporations. Town of North Hempstead v. Town of Hempstead, 2 Wend. (N. Y.) 109; People v. Morris, 13 Wend. (N. Y.) 325. But not included in the term "munic- ipal corporations." Eaton v. Mani- towoc County Sup'rs, 44 Wis. 489. State contributions to the support of an asylum founded and owned by a county held not to make it a state or public institution. Chal- fant v. State, 37 Ohio St. 60. A board of school commissioners a municipal corporation. Horton v. Mobile School Com'rs, 43 Ala. 598; Mobile School Com'rs v. Put- nam, 44 Ala. 506; School Dist. No. 7 v. Reeve, 56 Ark. 68, 19 S. W. 106. Trustees of public schools a pub- lic corporation. Bush v. Shipman, 5 111. (4 Scam.) 186; Trustees of Schools v. Tatman, 13 111. 27. Trustees of school districts or school townships not municipal corporations with power to issue bonds. Trustees of Schools v. Peo- ple, 63 111. 299; People v. Dupuyt, 71 111. 651; People v. Trustees of Schools, 78 111. 136. In Iowa a school district is a municipal corporation. Curry v. District Tp. of Sioux City, 62 Iowa, 102; Winspear v. District Tp. of Holman, 37 Iowa, 542. In Kansas a quasi corporation. Beach v. Leahy, 11 Kan. 23. School commissioners a quasi corporation. O'Neal v. School Com'rs of Washington County, 27 Md. 227; Littlewort v. Davis, 50 Miss. 403; Farnum's Petition, 51 N. H. 376. The board of education of Roch- ester, N. Y., is a corporation to a qualified extent. People v. Lathrop, 19 How. Pr. (N. Y.) 358. Common school districts not cor- porations within the meaning of Ohio Const, art. 13, 1. State v. Powers, 38 Ohio St. 54. A board of school directors a civil corporation. State v. Bremond, 38 Tex. 116. A school district held a municipal corporation in State v. Grimes, 7 Wash. 270; but not in Stroud v. City of Stevens Point, 37 Wis. 367. Overseers of the Poor in New York, a corporation sub modo. Rouse v. Moore, 18 Johns. (N. Y.) 407; Governor v. Gridley, 1 Miss. (Walk.) 328; Pomeroy v. Wells, 8 Paige (N. Y.) 406; Van Keuren v. Johnston, 3 Denio (N. Y.) 183. A body charged with the adminis- tration of ministerial and financial duties pertaining to a county held to be a quasi corporation. Levy Ct. of Washington County v. Cor- oner, 69 U. S. (2 Wall.) 501. In New Mexico, under Comp. Laws 1897, 1564, town boards of education held to be municipal cor- porations. Board of Education of Eddy v. Bitting, 9 N. Mex. (9 Gild.) 588. A levy court a quasi corporation. 16 INTRODUCTORY; DEFINITIONS. 8 tions of the two classes of corporations. And we find upon an examination of the authorities that the duties and obligations resting upon the public quasi corporations are less in number, and these less burdensome, than those which devolve upon the municipal corporation proper. The people residing within a municipal corporation are given a greater latitude and degree of local self government, in adopting measures looking to their local advantage, than those residing within a public quasi corporation ; and as their powers and duties are not thrust upon them, but acquired voluntarily to a large extent, it follows as just and proper that their obligations and duties be in the same measure increased and of a higher character. A full discussion will be found under the proper subject in the succeeding sections of this work. 28 Levy Ct. of Washington County v. Coroner, 69 U. S. (2 Wall.) 501. The provisional governments adopted for the management of towns and cities in the Territory of Oklahoma prior to Act Cong. May 2, 1890, are held to be mere volun- tary associations in Oklahoma City v. T. M. Richardson Lumber Co., 3 Okl. 5. 28 One of the leading cases dis- cussing these differences is that of Hamilton County Com'rs v. Mighels, 7 Ohio St. 109. The court in part say: "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 sovereign power of the state, of its own sov- ereign will, without the particular solicitation, consent, or concurrent action of the people who inhabit them. The former organization is asked for, or at least assented to, by the people it embraces; the lat- ter 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 ex- clusively 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 organiza- tion, of the means of travel and transport, and especially for the general administration of justice. With scarcely an exception, ail the powers and functions of the county organization have a direct and ex- clusive reference to the general policy of the state, and are, in fact, but a branch of the general ad- ministration of that policy." CHAPTER H. CORPORATE LIFE AND EXISTENCE. I. CBEATION AND DISSOLUTION OP CORPORATIONS. 9. The power to create a public corporation. 10. As existing in the National government. 11. The states and their power to create. 12. The exercise of the power. 13. Conditions precedent; population. 14. Conditions precedent; area and physical characteristics. 15. Mode of creation. 16. By implication. 17. By affirmative action. 18. Petition and notice. 19. The election. 20. Subsequent official action. 21. Incorporation without an election. 22. The charter of a public corporation and its legal nature. 23. Rules of construction. 24. The charter considered as evidence. 25. Acceptance. 26. Distinction between a public quasi and a municipal cor- poration in this regard. 27. Amendment of the charter. 28. By implication or indirection. 29. Effect of amendments. 30. Repeal of charter. 31. Effect of repeal. 32. Corporate existence, and the doctrine of collateral attack. 33. The dissolution of the corporation and its effects. 34. Forfeiture of charter. II. TERRITORIAL CHANGES AND THEIR EFFECT. ... 35. Boundaries; their enlargement. 36. Location or character of territory annexed. 37. Petition for annexation. 38. Notice necessary. 39. Objections to annexation. 40. Official declaration and right of appeal. 41. Effect of annexation upon those concerned. 42. Division of public corporations and the authority. 43. Character of the district divided or disconnected. Abb Corp. 2. 18 CORPORATE LIFE; EXISTENCE. 9 44. Mod of division, with official declarations. 45. Effects of annexation or division upon public property and liabilities. 46. Division or adjustment of debts and liabilities. 47. The legal authority; where existing. 48. Agency of apportionment. 49. Character or form of indebtedness. 50. Division of assets. 51. Agency for division of assets. III. CORPORATE NAME AND BOUNDARIES. 52. Existence of a public corporation. 53. Name of the corporation. 54. The seal and its use. 55. Corporate boundaries. 56. Definition of corporate boundaries. 57. Corporate boundaries; how established. 58. Boundary lines; agency for their establishment. 59. Proceedings for the establishment of corporate boundaries and miscellaneous matters in connection therewith. 60. Objections to the establishment of corporate boundaries. 61. Location of corporate boundaries. 62. Appeal from order fixing corporate boundaries. 63. Change of corporate boundary. 64. Judicial recognition. 65. Effect of the establishment or change of a boundary line. 66. Seat of government. 67. Original location of a county seat. 68. Removal of a county seat. 69. Petition for removal. 70. Its form and averments. 71. Petition and its signers. 72. Signers' right of withdrawal. 73. Petition for removal; its filing. Notice. 74. Official action. 75. Time and manner of election. 76. Qualifications of voters. 77. Votes necessary to a removal. 78. Canvass and return of votes. 79. Contests. 80. Authority of commissioners. 81. Declaration of the result and its effect I. CREATION AND DISSOLUTION OF CORPORATIONS. 9. The power to create a public corporation. From the fact that all corporations are artificial persons, it follows that they must be created by a sovereign power, or the CREATION AND DISSOLUTION. 19 state. They may be organized or incorporated pursuant to gen- eral directions found in the constitution of the state, the provi- sions of general enabling acts or statutes, or through or by means of a special act or special charter granted by the legislature of the state when not in contravention of a constitutional provision prohibiting the passage of special legislation. A brief resume of constitutional provisions regarding the crea- tion of corporations will be found in the subjoined note. 1 i An extended discussion of the constitutional provisions in some states will be found in the notes in Dillon, Mun. Corp. (4th Ed.) pp. 79 et seq., and Beach, Pub. Corp. pp. 59 et seq. Alabama: Corporations may be formed under general laws, but shall not be created by special act, except for municipal, manufactur- ing, mining, immigration, indus- trial and educational purposes, or for constructing canals, or improv- ing navigable rivers and harbors of this state, and in cases where in the judgment of the general assembly the objects of the corporations can- not be attained under general laws. All general laws and special acts passed pursuant to this section may be altered, amended or repealed. Const. 1875, art. 14, 1. Arkansas: The general assembly shall pass no special act conferring corporate powers, except for char- itable, educational, penal or re- formatory purposes, where the cor- porations created are to be and re- main under the patronage and con- trol of the state. Const. 1874, art. 12, 2. California: Corporations may be formed under general laws but shall not be created by special act except for municipal purposes. All general laws and special acts pass- ed pursuant to this section may be altered from time to time or re pealed. Const. 1849, art. 4, 31. Colorado: No charter of incor- poration shall be granted, extended, changed or amended by special law except for such municipal, charita- ble, educational, penal or reforma- tory corporations as are or may be under the control of the state; but the general assembly shall provide by general laws for the organization of corporations hereafter to be created. Const. 1876, art. 15, 2. Florida: The legislature shall provide by general law for incor- porating such municipal, educa- tional, agricultural, mechanical, mining and other useful companies or associations as may be deemed necessary. Const. 1868, art. 4, 22. Illinois: The general assembly shall not pass local or special laws in any of the following enumerated cases; that is to say for * * * incorporating cities, towns or vil- lages, or changing or amending the charter of any town, city or vil- lage. Const. 1870, art. 4, 22. No corporation shall be created by special laws * * * except those for charitable, educational, penal or reformatory purposes, which are to be and remain under the patronage and control of the state, but the general assembly shall provide by general laws for the organization of all corporations 20 CORPORATE LIFE; EXISTENCE. 9 This is true of all classes of corporations, including the various subdivisions of public corporations. As the latter are govern- hereafter to be created. Const, except for municipal purposes. All 170, art. 11, 1. laws passed pursuant to this sec- Indiana: Corporations, other tion may be amended, altered or re- than banking, shall not be created pealed. Const, art. 15, 1. by special act, but may be formed Minnesota: No corporation shall under general laws. Const. 1851, be formed under special acts except art. 11, 13. for municipal purposes. Const. Iowa: The general assembly 1857, art. 10, 2. shall not pass local or special laws Mississippi: Corporations shall in the following cases * * * be formed under general laws only. for the incorporation of cities and Const. 1890, art. 7, 178. towns. Const. 1857, art. 3, 30. Missouri: The general assembly Kansas: Corporations may be shall not pass any local or special created under general laws. Const, law * * * creating corporations 1859, art. 12, 1. or amending, renewing, extending Provision shall be made by gen- or explaining the charter thereof, era! law for the organization of Const. 1875, art. 4, 53. cities, towns, and villages; and Nebraska: No corporation shall their power of taxation, assessment, be created by special law * * * borrowing money, contracting debts except those for charitable, educa- and loaning their credit shall be so tional, penal or reformatory pur- restricted as to prevent the abuse poses which are to be and remain of such power. Const. 1859, art. 12, under the patronage and control of 5. the state, but the legislature shall Louisiana: Corporations shall provide by general laws for the or- not be created in this state by spe- ganization of all corporations here- cial laws except for political or mu- after to be created. Const. 1875, nicipal purposes. Const. 1845, art. art. 11, 1 (Misc.). 123. Nevada: The legislature shall Maine: Corporations shall not pass no special act in any manner be created by special act except for relating to corporate powers, except municipal purposes, etc. Const, for municipal purposes; but cor- (Amend. 1876) art. 4, 14. porations may be formed under Maryland: The general assembly general laws, and all such laws shall not pass local or special laws may, from time to time, be altered in any of the following enumerated or repealed. Const. 1864, art. 8, 1. cases. * * * The general as- New Jersey: General laws. sembly at its first session after the Const. 1875 (as amended) art. 4, adoption of this constitution shall 7, par. 11. pass general laws * * * where New York: Corporations may bo a general law can be made applica- formed under general laws; but ble. Const. 1867, art. 3, 33. shall not be created by special act Michigan: Corporations may be except for municipal purposes, and formed under general laws but in cases where in the judgment of shall not be created by special act, the legislature, the objects of the CREATION AND DISSOLUTION. 21 mental agents, incorporated or organized for the sole purpose, so far as their public duties are concerned, of aiding the state in the administration of government, the necessity or expediency of incorporating them should be decided, having reference to the advantages and interests of the whole people, as well as those within the lines of the proposed corporation. 2 The organization of municipal corporations whereby their mem- bers exercise political rights and duties is a marked feature of American government. It is based on the fundamental idea that the people are the source of all power and have the inherent right to exercise it vrhenever they see fit to do so. "This is with us no mere rhetorical declamation, but a foundation principle upon which our political institutions rest." As local matters can best corporation cannot be attained un- der general laws. Const. 1846, art. 8, 1. North Carolina: Corporations may be formed under general laws but shall not be created by special act except for municipal purposes. Const. 1876, art. 8, 1. North Dakota: The general as- sembly shall not pass any special law, incorporating cities, towns or villages. Const. 1889, 69, par. 33. Ohio: Corporations may be formed under general laws and all such laws may be altered or repeal- ed. Const. 1851, art. 13, 2. Oregon: Corporations may be formed under general laws but shall not be created by special laws, ex- cept for municipal purposes. Const. 1857, art. 11, 2. Pennsylvania: The general as- sembly shall not pass any special law incorporating cities, towns, or villages or changing their charters. Const. 1873, art. 3, 7. Rhode Island: Created by special act. Const, (as amended) art. 4, 17. South Carolina: Corporations may be formed under general laws. Const. 1868, art. 12, 1. South Dakota: Municipal cor- porations shall be formed under general laws and may be divided into not exceeding four classes. Const. 1889, art. 10, 1. Tennessee: No corporation shall be created, or its powers increased or diminished, by special laws. Const. 1870, art 11, 8. Texas: Municipal corporations are organized by general or special law according to population. Const. 1876, art. 11. West Virginia: The legislature shall not pass any law incorporat- ing cities, towns, or villages con- taining a population of less than 2,000. Const. 1872, art. 6, 39. Wisconsin: Corporations shall not be created by special act save for municipal purposes. Const. 1848, art. 11, 1. In Connecticut, Delaware, Geor- gia, Kentucky, Massachusetts, Mon- tana, New Hampshire, Vermont and Virginia, the subject is left to leg- islative discretion, there being no constitutional provisions bearing upon the subject. 2 In re Millville Borough, 10 Pa. Co. Ct. R. 321. 22 CORPORATE LIFE; EXISTENCE. 10 be regulated by the people of the locality, we have it so, rather than allow the central power to govern in these respects. This policy runs back into our earliest history, is seen in all state legislation, and is guarantied by a greater number of state con- stitutions. In this connection a quotation from De Tocqueville may not be amiss: "Local assemblies of citizens constitute the strength of free nations. Municipal institutions are to liberty what primary schools are to science; they bring it within the people's reach; they teach men how to use and how to enjoy it. A nation may establish a system of free government, but without the spirit of municipal institutions it cannot have the spirit of liberty." 3 Formerly in England public corporations were created by a royal charter or act of parliament. This necessarily led to the granting of favors or exemptions to some, not enjoyed or pos- sessed by others, and abuses crept into the granting of charters to such an extent that in 1835, as a reformatory measure, the municipal corporations act of 5 and 6 Wm. IV. c. 76, was passed. From time to time amendments were made to this act as sug- gested by defects in the original bill, and in 1882 bj r 45 and 46 Viet. c. 50 (L. R. 18, Stat. 205), the act of 1835 with its various amendments was remodeled and consolidated, and since that date all public corporations in England, of whatever grade, have been incorporated under the same conditions and possess the same general powers. In the United States the power to create corporations is lodged in the Federal government and in the various state governments as quasi independent sovereigns.* 10. As existing in the National government. The theory which sustains the right of the Federal government to create a corporation, either public or private, is that, while not one of the enumerated sovereign powers or ends of govern- ment, it may be the means of carrying into effect those granted. This power was denied the Federal government at first, but the s De Tocqueville, Democracy in * McCulloch v. Maryland. 4 America, c. 5; People v. Hurlbut, 24 Wheat. (U. S.) 316; Osborn v. Bank Mich. 44; People v. Common Coun- of U. S., 9 Wheat. (U. S.) 738; cil of Detroit, 28 Mich. 228; State Daly v. National L. Ins. Co., 64 v. Noyes, 30 N. H. 292. Ind. I. 11 CREATION AND DISSOLUTION. 23 doctrine is firmly established, and we find Congress passing laws creating or incorporating municipal and public quasi corpora- tions in the District of Columbia and other territory under the sole jurisdiction of the Federal government. It has not yet at- tempted to create or organize such corporations within the terri- torial limits of the different states. 5 The municipal corporation, the District of Columbia, was or- ganized under act of Congress of February 21, 1871 (16 Stat. 419). Its validity being called in question, the supreme court of the United States uses the following language: "A munic- ipal corporation in the exercise of all of its duties, including those most strictly local o~r internal, is but a department of the state. The legislature may give it all the powers such a being is capable of receiving, making it a miniature state within its locality. Again, it may strip it of every power, leaving it a corporation in name only; and it may create and recreate these changes as often as it chooses, or it may itself exercise direct- ly within the locality any or all the powers usually committed to a municipality. We do not regard its acts as sometimes those of an agency of the state, and at others those of a municipality, but that, its character and nature remaining at all times the same, it is great or small according as the legislature shall ex- tend or contract the sphere of its action." 6 11. The states and their power to create. The states, being quasi independent sovereigns or govern- ments not of enumerated powers, possess the usual attributes of such sovereignty, including the creation of artificial persons; and in the exercise of this power it has been held that no pre- cise form of words is necessary to create a corporation. If the intent of the legislature is clearly established, that is sufficient. 7 s Madison Federalist, Sept. 14, Burnes v. City of Atchison, 2 Kan. 1787; Jefferson's Memoirs (1829) 454; McCulloch v. Maryland, 4 523, 526; House Documents, 50th Wheat. (U. S.) 316; Osborn v. Bank Cong., 1st Sess. House Report Num- of U. S., 9 Wheat. (U. S.) 738; ber 530. "Bill to incorporate Thomson v. Union Pac. R. Co., 76 the Maritime Canal Company of U. S. (9 Wall.) 579. Nicaraugua." Barnes v. District of s Barnes v. District of Columbia, Columbia, 91 U. S. 540; Stouten- 91 U. S. 540. burgh v. Hennick, 129 U. S. 141; ~ 2 Kent, Comm. 27; Mahony v. Deitz v. City of Central, 1 Colo. 323; Bank of the State, 4 Ark. 620; Peo- 24 CORPORATE LIFE; EXISTENCE. It is impossible within the limits of this work to discuss in detail all the constitutions, general and special acts, under which public corporations may be or have been created. A brief reference to many of the more important cases will be found in the note. 8 The states, as already suggested, being sovereign and inde- pendent except as limited by the constitution of the United States, have the power to create corporations for public pur- poses, with all the means of self-government, including that of levying taxes for local purposes, 9 and the possession of this power implies the further right to create them with such limita- tions and omissions as the legislative body may see fit to make. 10 And it has even been- held that a grant from the sovereign authority, of lands to be held for public purposes of a munic- ipal nature, to a body of men, with their associates and succes- sors, confers a quasi corporate capacity. 11 The power, however, to incorporate, possessed by the legisla- ture, since it is itself one delegated, cannot usually be delegated to subordinate bodies or officers, either legislative, judicial or pie v. City of Riverside, 70 Cal. 461; Stebbins v. Jennings, 27 Mass. (10 Pick.) 172; New Boston v. Dunbar- ton, 12 N. H. 409; Bow v. Aliens- town, 34 N. H. 351, 372; Thomas v. Dakin, 22 Wend. (N. Y.) 9, 84; Denton v. Jackson, 2 Johns. Ch. (N. Y.) 326; State v. Covington, 29 Ohio St. 102; Goshorn v. Ohio Coun- ty Sup'rs, 1 W. Va, 308. s See 9, note 1, with extended references. Sessions v. State, 115 Ga. 18, 41 S. E. 259 (construing Acts Ga. 1872, p. 248) ; Town of Decorah v. Bullis, 25 Iowa, 12 (Act of 1858 concerning incorporation of towns and cities held not to apply to De- corah, Iowa). The town of West Covington. Maltus v. Shields, 59 Ky. (2 Mete.) 553; Watts v. Village of Port De- posit, 46 Md. 500. The town of Mankato. Village of Mankato v. Meagher, 17 Minn. 265 (Gil. 243). Port Gibson, Mississippi. Port Gibson v. Moore, 21 Miss. (13 Smedes & M.) 157. Carson City, Nevada. State r. Swift, 11 Nev. 128; Oklahoma City v. T. M. Richardson Lumber Co., 3 Okl. 5; Douglass v. Town of Harris- ville, 9 W. Va. 162. Hope v. Deaderick, 27 Tenn. (8 Humph.) 1; Nichol v. City of Nash- ville, 28 Tenn. (9 Humph.) 252; Sessions v. State, 115 Ga. 18, 41 S. E. 259; Carr v. McCampbell, 61 Ind. 97; Owen v. Sioux City, 91 Iowa, 190, 59 N. W. 3; Cheaney v. Hooser, 48 Ky. (9 B. Mon.) 330; State v. Stuht, 52 Neb. 209, 71 N. W. 941. 10 State v. Stuht, 52 Neb. 209, 71 N. W. 941; Redell v. Moores, 63 Neb. 219, 88 N. W. 243; Butler v. Town of Montclair, 67 N. J. Law, 426, 51 Atl. 494. 11 Den d. Town of Bath Com'rs v. Boyd, 23 N. C. (1 Ired.) 194; Den- ton v. Jackson, 2 Johns. Ch. (N. Y.) 12 CREATION AND DISSOLUTION. 25 ministerial in their character, though the rule would not apply to purely clerical, mechanical or ministerial acts. 12 12. The exercise of the power. The constitution of a state is the written expression of the sovereign will. Early constitutions as a rule contained no pro- visions for the organization of public corporations, limiting or defining the power of the legislature in this respect. Those adopted of late years, however, or recent amendments, usually provide in terms for their creation. Where they fail in this last regard, however, they direct the passage of general laws by the legislature effecting the same result and delegating to that body the usual discretion as to the details of such incorporation. 13 In Wisconsin the legislature may delegate this power when and how it sees fit, the constitution of that state providing that "the legislature may confer on the boards of supervisors of the several counties such powers, of a local, legislative and adminis- trative character, as they shall from time to time prescribe." Existing statutes delegated to the county boards of the several counties the power to set off, organize, vacate and change the boundaries of the towns in their respective counties. A special act provided for the division of a county into three towns and recited that none of the towns should be divided until the ques- tion was submitted to the legal electors of the towns to be affected. It was held not unconstitutional as a discrimination between counties, for the legislature had power to resume the authority it had conferred upon the county boards. 14 In the absence of constitutional provisions or of general laws, some states have adopted, as their settled policy, the creation of public corporations by the passage of special acts granting charters containing special powers and privileges to the in- habitants of a particular district. 320; Town of North-Hempstead v. San Jose, 104 Cal. 642; City of Town of Hempstead, 2 Wend. (N. Americus v. Perry, 114 Ga. 1004, Y.) 109; People v. Schermerhorn, 40 S. E. 1004; People v. Cooper, 83 19 Barb. (N. Y.) 540. 111. 585; Wyandotte v. Wood, 5 Kan. 12 People v. Bancroft, 2 Idaho, 603. Compare Kilgore v. Magee, 85 1077, 29 Pac. 112. But see contra, Pa. 401. State v. Forest County, 74 Wis. 610. " State v. Forest County, 74 Wis. is See section 9; Brooks v. Fisch- 610. er. 79 Cal. 173; Darcy v. City of 26 CORPORATE LIFE; EXISTENCE. Public corpprations may, then, be organized or created under constitutions or general laws pursuant to constitutional pro- visions fixing universal terms and conditions upon which they may be organized, or special acts conferring special powers and privileges. The legislature, in the absence of constitutional pro- visions, possesses the power, as the legislative branch or body of the sovereign, to pass laws general or special in their nature, subject only to constitutional restrictions applying to all legis- lation. 15 In the notes will be found references to a number of cases dis- cussing and determining the validity of special acts, some of these questioned upon the constitutional ground of special legis- lation, others for reasons applying to legislation in general, and still others for some inherent vice, 16 the limits of this work pre- is Rathbone v. Kiowa County Com'rs, 27 C. C. A. 477, 83 Fed. 125; Rauer v. Williams, 118 Cal. 401; Swamp Land Dist. No. 150 v. Sil- ver, 98 Cal. 51; Ayeridge v. Social Circle Com'rs, 60 Ga. 404; State v. Steunenberg, 5 Idaho, 1, 45 Pac. 462; City of Wardner v. Pelkes (Idaho) 69 Pac. 64; Guild v. City of Chica- go, 82 111. 472; People v. Pike, 197 111. 449; Larcom v. Olin, 160 Mass. 102; People v. Bennett, 29 Mich. 451; State v. City of Thief River Falls, 78 Minn. 15, 78 N. W. 867; State v. County Court of Vernon County, 53 Mo. 128; State v. City of Camden, 50 N. J. Law, 87, 11 Atl. 137; State v. City of Somers* Point, 52 N. J. Law, 32, 18 Atl. 694; Day v. City of Morristown, 63 N. J. Law, 353, 46 Atl. 1098; Socorro County Com'rs v. Leavitt, 4 Gild. (N. M.) 37, 12 Pac. 759; Blanchard v. Bis- sell, 11 Ohio St. 96; In re Incor- poration of Village of Edgewood, 130 Pa. 348, 18 Atl. 646; Smith v. Grayson County, 18 Tex. Civ. App. 153, 44 S. W. 921; King County Com'rs v. Davies, 1 Wash. St. 290, 24 Pac. 540; Walworth County v. Vil- lage of Whitewater, 17 Wis. 193; City of Janfisville v. Markoe, 18 Wis. 350; Jones v. Kolb, 56 Wis. 263; Chicago & N. W. R. Co. v. Langlade County, 56 Wis. 614. is Fowle v. Common Council of Alexandria, 3 Pet. (U. S.) 398; Lockhart v. City of Troy, 48 Ala. 579; City of Santa Rosa v. Coulter, 58 Cal. 537; People v. McFadden, 81 Cal. 489; Popper v. Broderick, 123 Cal. 456, 56 Pac. 53; Rauer v. Wil- liams, 118 Cal. 401; State v. Stark, 18 Fla. 255; Lake v. State, 18 Fla. 501; Middleton v. City of St. Au- gustine, 42 Fla. 287, 29 So. 421; Potwin v. Johnson, 108 111. 70; Cummings v. City of Chicago, 144 111. 563, 33 N. E. 854; Von Phul v. Hammer, 29 Iowa, 222; In re City of Council Grove, 20 Kan. 619; Brown v. Milliken, 42 Kan. 769; Huer v. City of Central, 14 Colo. 71, 23 Pac. 323; State v. Lewelling. 51 Kan. 562, 33 Pac. 425; City of Cov- ington v. District of Highlands, 24 Ky. L. R. 433, 68 S. W. 669: Adams v. Forsyth, 44 La. Ann. 130. 10 So. 622; Yellowstone County Com'rs Y. Northern Pac. R. Co., 10 Mout. 414; 13 CREATION AND DISSOLUTION. 27 venting a fuller discussion ; but as an illustration, in Georgia a special act undertaking to establish the corporate limits of a town, if indefinite, uncertain and incomplete in the description of the territory to be embraced, was not given effect. 17 13. Conditions precedent; population. A discussion of the power of the legislature to pass laws classi- fying cities, towns and villages, and, providing for the organiza- tion of such corporations upon complying with or coming within the conditions fixed, will be found in the chapter relating to legislative power over public corporations and its limitations. In the creation of corporations, however, it can be said that a legislature may have the power, either as proceeding from the constitution of the state or as possessed originally and delegated by the people, to pass laws for the organization of public cor- porations dependent on the residence, within certain geograph- ical limits, of a certain number of people. 18 And in determining City of St. Louis v. Shields, 62 Mo. 247; Holliday v. Sweet Grass Coun- ty, 19 Mont. 364, 48 Pac. 553; Owen v. Baer, 154 Mo. 434; Copeland v. City of St. Joseph, 126 Mo. 417, 29 S. W. 281; State v. Ruhe, 24 Nev. 251, 52 Pac. 274; Ross v. Winsor, 48 N. J. Law, 95; Wanser v. Hoos, 60 N. J. Law, 482; Goldberg v. Dorland, 56 N. J. Law, 364, 28 Atl. 599; Broking v. Van Valen, 56 N. J. Law, 85, 27 Atl. 1070, general and special legislation; Arthur v. Vil- lage of Glens Falls, 66 Hun (N. Y.) 136; Rodman-Heath Cotton Mills Y. Town of Waxhaw, 130 N. C. 293, 41 S. E. 488; Town of Denver v. City of Spokane Falls, 7 Wash. 226; Elder v. Incorporators of Central City, 40 W. Va. 222, 21 S. E. 738. See, also, cases cited in preceding note. IT Warren v. Branan, 109 Ga. 835. is Sanders v. Sehorn, 98 Cal. 227; City of Wardner v. Pelkes (Idaho) 69 Pac. 64; People v. Gaulter, 149 111. 39, 36 N. E. 576; Poor v. People, 142 111. 309; People v. Martin, 178 111. 611; People v. Marquiss, 192 111. 377, 61 N. E. 352; People v. Pike, 197 111. 449; Allen v. Hostet- ter, 16 Ind. 15; Wilkison v. Board of Children's Guardians of Marion County, 158 Ind. 1, 62 N. E. 481; O'Bryan v. City of Owensboro, 24 Ky. L. R. 469, 68 S. W. 858; State v. Village of Fridley Park, 61 Minn. 146, 63 N. W. 613; State v. Stuht, 52 Neb. 209, 71 N. W. 941; Mort- land v. State, 52 N. J. Law, 521, 20 Atl. 673; Attorney-General v. Borough of Anglesea, 58 N. J. Law, 372, 33 Atl. 971; Grey v. City of Dover, 62 N. J. Law, 40, 40 Atl. 640; City of Dover v. Grey, 62 N. J. Law, 647, 42 Atl. 674; In re Henneberger, 155 N. Y. 420; Harness v. State, 76 Tex. 566; Ewing v. State, 81 Tex. 172; McCrary v. City of Co- manche (Tex. Civ. App.) 34 S. W. 679; Thompson v. State, 23 Tex. Civ. App. 370; Watson v. Corey, 6 Utah, 150, 21 Pac. 1089; Town of South Morgantown v. City of Mor- 28 CORPORATE LIFE; EXISTENCE. the population of the district in proceedings to incorporate, only those can be included as " actual residents" of such territory who are in a place with the intent to establish, or who have already established, their domicile there. 19 In cases where the question of actual population of the terri- tory to be organized is raised, it is determined by the latest Federal or official census of the state. 20 The word "town" as used in New Jersey Public Laws of 1895, p. 551, 1, in the phrase "incorporated city or town," means any municipal corporation above the grade of township and be- low that of city, this act providing for the incorporation of dis- tricts containing certain population. 21 14. Conditions precedent; area and physical characteristics. The area of a district contemplating incorporation may be the determining element or condition, 22 or the physical character- istics of territory to be organized. 28 gantown, 49 W. Va. 729, 40 S. E. 15; State v. Lammers, 113 Wis. 398, 86 N. W. 677, 89 N. W. 501; Fremont County Com'rs v. Perkins, 5 Wyo. 166, 38 Pac. 915. 19 State v. Robertson, 41 Kan. 200; State v. Mote, 48 Neb. 683, 67 N. W. 810. See, also, Attorney Gen- eral v. Borough of Anglesea, 58 N. J. Law, 372. 20 Kumler v. San Bernardino County Sup'rs, 103 Cal. 393; Gett v. Sacramento County Sup'rs, 111 Cal. 366; People v. Gaulter, 149 111. 39; Martin v. Ivins, 59 N. J. Law, 364, 36 Atl. 93. 21 Stout v. Borough of Glen Ridge, 59 N. J. Law, 201, 35 Atl. 913. 22 State v. County of Dorsey, 28 Ark. 378; Guebelle v. Epley, 1 Colo. App. 199, 28 Pac. 89; Town of Cicero v. City of Chicago, 182 111. 301; People v. Marquiss, 192 111. 377, 61 N. E. 352; State v. St. John, 21 Kan. 591; State v. Garfield Coun- ty Com'rs, 54 Kan. 372; Kansas Town & Land Co. v. City of Smith Center, 6 Kan. App. 252, 51 Pac. 801; Rice v. Ruddiman, 10 Mich. 125; Warren v. Barber Asphalt Paving Co., 115 Mo. 572; Maury County v. Lewis County, 31 Tenn. (1 Swan) 236; Brown v. Hamlett, 76 Tenn. (8 Lea) 732; Bridgenor v. Rodgers, 41 Tenn. (1 Cold.) 259; Cheatham County v. Dickson Coun- ty (Tenn. Ch. App.) 39 S. W. 734; State v. Broach (Tex. Civ. App.) 35 S. W. 86; State v. Larrabee, 1 Wis. 200; State v. Merriman, 6 Wis. 17; State v. Lammers, 113 Wis. 398, 86 N. W. 677, 89 N. W. 501. 23 Fullington v. Williams, 98 Ga. 807; Christ v. Webster City, 105 Iowa, 119, 74 N. W. 743; Gray v. Crockett, 30 Kan. 138; State v. Mc- Reynolds, 61 Mo. 203; State v. Fleming, 158 Mo. 558, 59 S. W. 118; State v. Dimond, 44 Neb. 154, 62 N. W. 498. See, also, citations in the following note. 14 CREATION AND DISSOLUTION. 29 Where this last element determines the legal organization of or annexation to municipalities or public quasi corporations of territory, a successful result seems to depend upon the nature of the land. Is it fit for agricultural purposes or ''farming land," and so far distant from the center of the city or town that it will not enjoy any of the advantages supposed to be derived from municipal organization, such as fire and police protection? And further, answering this proposition in the negative, is the value of the land enhanced to such an extent by the existence near it of a large center of population as to justly impose upon it a part of the burdens accompanying municipal organization? 24 24 Indiana Imp. Co. v. Wagner, 138 Ind. 658, 38 N. E. 49; Stephens v. Felton, 99 Ky. 395; State v. Vil- lage of Minnetonka, 57 Minn. 526, 59 N. W. 972; State v. Village of Fridley Park, 61 Minn. 146, 63 N. W. 613; Giboney v. City of Cape Girardeau, 58 Mo. 141; Kansas City v. Marsh Oil Co., 140 Mo. 458; City of Plattsburg v. Riley, 42 Mo. App. 18; Meri wether v. Campbell, 120 Mo. 396, 25 S. W. 392; State v. Mote, 48 Neb. 683; McClay v. City of Lincoln, 32 Neb. 412, 49 N. W. 282; Stout v. Borough of Glen Ridge, 59 N. J. Law, 201; In re Borough of Little Meadows, 35 Pa. 335; In re Borough of Duquesne, 147 Pa. 58, 23 AH. 339; Borough of Blooming Valley, 56 Pa. 66; In re Incorporation of Village of Edgewood, 130 Pa. 348; In re In- corporation of Wilkinsburg Bor- ough, 131 Pa. 365; In re Borough of Taylor, 160 Pa. 475; In re In- corporation of Borough of Prospect Park, 166 Pa. 502. Truckmen who raise small fruits, etc., for sale to townspeople, are not farmers within the meaning of Act of Pa., April 1st, 1863, and therefore are not entitled to have their lands excluded from boun- daries of a proposed borough. In re Tullytown Borough, 11 Pa. Co. Ct. R. 97; In re Collingdale, 11 Pa. Co. Ct. R. 105; In re Borough of Larsville, 13 Pa. Co. Ct. R. 351; Pelletier v. City of Ashton, 12 S. D. 366, 81 N. W. 735. Land not laid off into lots or blocks, and agricultural land with- in the corporate limits, held prop- erly included. State v. Town of Baird, 79 Tex. 63; Thompson v. State, 23 Tex. Civ. App. 370; Mc- Clesky v. State, 4 Tex. Civ. App. 322, 23 S. W. 518; Ewing v. State, 81 Tex. 872. The inclusion of a large quantity of agricultural land does not ren- der a special act incorporating a city void. Nalle v. City of Austin, 23 Tex. Civ. App. 595, 42 S. W. 780; State v. Hoard, 94 Tex. 527, 62 S. W. 1054; Judd v. State, 25 Tex. Civ. App. 418, 62 S. W. 543. In the latter case from seventy-five to eighty per cent of the land included in the petition was agricultural and the incorporation held invalid. Ferguson v. City of Snohomish, 8 Wash. 668. As to effect of special act, Phillips v. City of Huntington, 35 W. Va. 406; State v. Lamoureux, 3 Wyo. 731; Smith v. Sherry, 50 Wis. 210. A vacant tract of land not adjoining an existing village 30 CORPORATE LIFE; EXISTENCE. 15 In Pennsylvania, under an act of the legislature providing for the incorporation of any town or village containing 300 in- habitants, no authority exists for the incorporation into a borough of two or more distinct villages together with a tract of open farm country. 28 Upon an examination of the authorities cited, the general rule seems to be well established that farm land situated so far dis- tant from organized territory as to be incapable of receiving the advantages derived from municipal organization, including fire and police protection, cannot be annexed, nor, in the first instance, in the absence of sufficient population, organized into a municipal corporation. Land, however, used for garden or "truck" purposes, or immediately adjacent to the boundaries of an organized city or town, receiving the benefits above in- dicated, may properly be included in or annexed to a center of population. The courts hold that such territory should pay for the advantages and protection it receives by reason of its loca- tion. In all cases the territory proposed to be incorporated or annexed should be what is variously termed in different statutes "contiguous" or "adjacent" land. 26 15. Mode of creation. To a certain extent the mode of creation has been discussed in a preceding section. No particular form of words is necessary to create a corporation. The essential is an existing intent on the part of the state or a legislative body that a public cor- poration shall be created. Following logically from this state- ment, then, we may have three modes of creation : by prescrip- tion, by implication, and by affirmative action. By prescription. A public corporation exercises certain pow- ers and w r e find imposed upon it certain duties and obligations. There may not be in existence an express act of the sovereign giv- ing to the inhabitants of a certain district the right to exercise these powers, affected by their corresponding duties and obliga- tions, but the cases hold in many instances that where an active corporation has existed for some time it will be'presumed that at cannot be incorporated into it by 25 in re Borough of West Phila- the legislature for the sole purpose delphia, 5 Watts & S. (Pa.) 281. of taxation. See, also, Russ v. 26 Duckstad v. Polk Count)' City of Boston, 157 Mass. 60. Com'rs, 69 Minn. 202, 71 N. W. 933. 15 CREATION AND DISSOLUTION. 31 the time of the organization of such territory the affirmative permission of the sovereign was given. The people within cer- tain geographical limits may have exercised, in other words, all the rights which usually appertain to a particular organization for such a length of time that their legal right to do so will not be questioned; 27 and because, as said in an Illinois case, "munici- pal corporations are created for the public good are demanded by the wants of the community ; and the law, after long-continued use of corporate powers, and the public acquiescence, will in- dulge in presumptions in favor of their legal existence." 28 The state may also, by long acquiescence in the continued exercise of corporate powers by the inhabitants of a certain district, be estopped or precluded from questioning or raising the legal ex- istence as a corporation of such territory. 29 27 Greene v. Dennis, 6 Conn. 293; Gush.) 487; New Boston v. Dun- Town of Enterprise v. State, 29 barton, 15 N. H. 201. Fla. 128, 10 So. 740; People v. Farn- 29 state v. Leatherman, 38 Ark. ham, 35 111. 562; State v. Bunker, 81. The recognition of a municipal 59 Me. 366; Prentiss v. Davis, 83 corporation by state officers for nine Me. 364; People v. Maynard, 15 years sufficient to prevent a state Mich. 463; Village of Arapahoe v. from questioning the legal existence Albee, 24 Neb. 242, 38 N. W. 737; of the corporation. City of Omaha v. City of South Pidgeon v. McCarthy, 82 Ind. 321. Omaha, 31 Neb. 378, 47 N. W. 1113; In Indiana where Wm. Henry Har- but contra, in New Boston v. Dun- rison drafted a map of Vincennes barton, 12 N. H. 409; Wallace v. adding some land which he marked Fletcher, 30 N. H. 434; Bow v. Al- "General Harrison's Reserve," lenstown, 34 N. H. 351; Robie v. which was assessed and taxed by Sedgwick, 35 Barb. (N. Y.) 319; 2 the city for over fifty years with- Kent, Comm. 277; Barnes v. Barnes, out question, it was held that un- 6 Vt. 388; State v. Williams, 27 der these circumstances the fact Vt. 755; Town of Londonderry v. that this tract was not legally a Town of Andover, 28 Vt. 416. part of the corporate territory could 2s Jameson v. People, 16 111. 257. not be shown. Back v. Carpenter, In Massachusetts the supreme 29 Kan. 349; Bow v. Allenstown, court held in 1809 that the existence 34 N. H. 351; Sherry v. Gilmpre, of a municipal corporation could be 58 Wis. 324. Twenty years suffi- proved by reputation; otherwise cient to protect corporate organiza- many towns and parishes would tion from collateral attack. See, lose all their corporate rights and also, Austrian v. Guy, 21 Fed. 500; privileges. Dillingham v. Snow, 5 People v. Alturas County, 6 Idaho, Mass. 547; Stockbridge v. West 418, 55 Pac. 1067; Mendenhall v. Stockbridge, 12 Mass. 400. See, Burton, 42 Kan. 570. But see State also, Trott v. Warren, 11 Me. 227; v. Fleming, 147 Mo. 1, and Worley Bassett v. Porter, 58 Mass. (4 v. Harris, 82 Ind. 493. 32 CORPORATE LIFE; EXISTENCE. 1$ 16. By implication. The creation of a public corporation through implication is slightly different from its creation by prescription, though both modes presuppose the existence of an intent on the part of the sovereign to create such a public corporation. The element of time differentiates them. The inhabitants of a certain district may have exercised the usual powers for such a length of time that the granting of them will be presumed. On the other hand, the inhabitants of such territory may not have exercised these powers for such a length of time as will give to them the right through prescription, but the legislature may by some act recog- nize the legal incorporation or existence of such district, and therefore, as the courts have held, the corporation will be cre- ated by implication. 30 so Anon., 1 Salk. 191; Conserva- character, this doctrine obtains, tors of River Tone v. Ash, 10 Barn. State v. Pawnee County Com'rs, 12 & C. 349; Russell v. Devon County, Kan. 426-440; Stebbins v. Jennings, 2 Term. R. 672; Society for the 27 Mass. (10 Pick.) 172; Prentiss Propagation of the Gospel v. Towns v. Davis, 83 Me. 364; State v. Tos- of Pawlet & Clarke, 4 Pet. (U. S.) ney, 26 Minn. 262. 480-502; Levy Court v. Coroner, 69 But the case of Smith v. Ander- U. S. (2 Wall.) 501; Blair v. West son, 33 Minn. 25, holds that legal- Point Precinct, 2 McCrary, 459, 5 izing the acts of certain county offl- Fed. 265; Tatum v. Tamaroa, 9 cers does not ipso facto organize Biss. 475, 14 Fed. 103; Dean v. the county so as to entitle it to a Davis, 51 Cal. 406; Town of En- register of deeds. State v. Spaude, terprise v. State, 29 Fla. 128, 10 37 Minn. 322, 34 N. W. 164; Gas- So. 740. kill v. Dudley, 47 Mass. (6 Mete.) In Georgia it was held, however, 552; New Boston v. Dunbarton, 12 that a district organized as a "town" N. H. 409, 15 N. H. 201 ; Bow v. would not become a "city" by the Allenstown, 34 N. H. 351; Broking mere use of the word "city" in v. Van Valen, 56 N. J. Law, 85, acts referring to such town. Sa- 27 Atl. 1070; Green v. Seymour, 3 vannah, F. & W. R. Co. v. Jordan, Sandf. Ch. (N. Y.) 285; Town of 113 Ga. 687, 39 S. E. 511; and Bath Com'rs v. Boyd, 23 N. C. (1 Holm berg v. Jones, 7 Idaho, 752, Ired.) 194; Town of Trenton Com'rs 65 Pac. 563, holds that a county v. McDaniel, 52 N. C. (7 Jones) cannot be created by implication or 107; Mclntyre Poor School v. intendment. Zanesville Canal & Mfg. Co., 9 Ohio, People v. Farnham, 35 111. 562; 203; Mathews v. State, 82 Tex. 577, Bradley v. Case, 4 111. (3 Scam.) but see In re Campbell, 1 Wash. 287. 608; State v. Stevens, 21 Kan. 210. It has also been held that where Even in cases where the original a town is organized under a void organization was fraudulent in its act, its incorporation will be ren- 18 CREATION AND DISSOLUTION. 33 17. By affirmative action. The third way in which a public corporation may be created is by what may be termed express affirmative action on the part of the sovereign, and, as has been already stated, this may be accomplished pursuant to constitutional provision, general en- abling statutes, or special act. The discussion which follows will not attempt to distinguish as between the three modes, but will follow the decisions and state the necessary steps to be taken by the people in attempting to incorporate under legal authority. 31 18. Petition and notice. The petition. That certain territory, wherever found, become incorporated under authority of law, the first requisite may be the preparation and filing of a petition with the proper officer, 32 dered legal by subsequent legisla- tion. State v. Berry, 13 Wash. 708. City of Bridgeport v. Housatonic R. Co., 15 Conn. 475. The legisla- ture by a confirmatory law may make valid an act of the corpora- tion which was void for want of power given by the original charter. The common-law rule that a void act cannot be made good cannot be true of sovereignty, it was said. People v. Alturas County, 6 Idaho, 418, 55 Pac. 1067. The ex- istence of the county of Baline was recognized by four different acts of the legislature, by the supreme court, and by the executive depart- ment of the state. It exercised all the powers and functions of a county government for four years. The state was held estopped from questioning the regularity and validity of its incorporation. 31 See notes under 9. State v. O'Connor, 81 Minn. 79, 83 N. W. 498. Minn. Const., art. 4, 36, applies only to cities having an incorporated existence at the time of its adoption, and further held not necessary for the legisla- ture to prescribe a general frame work for a city charter. City of Guthrie v. Ter., 1 Okl. 188, 31 Pac. 190. A provisional mu- nicipal organization made in Okla- homa before the act of congress pro- viding a territorial government, had no legal existence. Wells v. Burbank, 17 N. H. 393. The grant of a charter for a town- ship does not create a town cor- poration, though the grantees are a quasi corporation for the sale and partition of their lands. Reeves v. Anderson, 13 Wash. 17. The power to "frame a charter" given by the constitution of the state of Washington, art. 11, 10, to a city containing a population of 20,000 or more, is a continuing right vested in the electors and does not become exhausted. 32 People v. Town of Berkeley, 102 Cal. 298; Vance v. Rankin, 95 111. App. 562; People v. Marquiss, 192 111. 377, 61 N. E. 352; Indiana Imp. Co. v. Wagner, 138 Ind. 658, 38 N. E. 49; State v. Hertsch, 136 Ind. 293; Ford v. Town of North Des Moines, 80 Iowa, 626, 45 N. W. Abb. Corp. 3. 34 CORPORATE LIFE; EXISTENCE. 18 containing the necessary averments of the signers' wishes, 33 with an accurate and definite description of the boundaries limiting and inclosing the proposed organization. 3 * When such petition, properly drawn and duly signed, is filed, its subsequent change, either by alteration of the boundaries or the withdrawal of signa- tures, avoids the incorporation. 38 The notice. It is a fundamental rule of law that before action or proceedings of any character can be legally taken affecting the rights, either property or political, of an individual, he must have notice of the pendency of such proposed action or pro- ceedings. This rule of law applies to the present question. A proposed municipal or public quasi corporation necessarily in- cludes the property of a large number of individuals. The law gives them a right to be heard upon all matters pertaining to or affecting their rights. The necessary petition preliminary to the organization of a public corporation, under authority of law, must be brought home either by actual or constructive notice to the attention of all possessing rights within the limits of the territory included. The notice of the filing of a petition for an election to determine the question of incorporation must contain substantially the legal requirements; 36 it must be signed by the 1031; State v. Sillon, 21 Kan. 207; Petition for incorporation not void State v. Red Lake County Com'rs, because of miscitation of statute. 67 Minn. 352, 69 N. W. 1083; State Town of Somonauk v. People, 178 v. Campbell, 120 Mo. 396; State v. 111. 631; People v. Pike, 197 111. 449; Fleming, 147 Mo. 1, 44 S. W. 758; Attorney General v. Rice, 64 Mich. State v. Jenkins, 25 Mo. App. 484; 385, 31 N. W. 203; In re Borough State v. Dimond, 44 Neb. 154, 62 of Blooming Valley, 56 Pa. 66. N. W. 498; State v. Borough Com- s* city of Wardner v. Pelkes mission of Ocean Beach, 48 N. J. (Idaho) 69 Pac. 64; State v. Young, Law, 375; Borough of Glen Ridge v. 61 Mo. App. 494; Wood v. Quimby, Stout, 58 N. J. Law, 598, 33 Atl. 858; 20 R. I. 482; Furrh v. State, 6 Tex. In re Pine Hill, 33 N. Y. Supp. 181; Civ. App. 221, 24 S. W. 1126; State Devore's Appeal, 56 Pa, 163; In v. Hoard, 94 Tex. 527, 62 S. W. re Borough of Taylorsport (Pa.) 1054; Huff v. Preuitt (Tex. Civ. 13 Atl. 224; In re Borough of Ver- App.) 53 S. W. 844. sailles, 159 Pa. 43; In re Borough 35 state v. Campbell, 120 Mo. 396, of Flemington, 168 Pa. 628; Burnes 25 S. W. 392. v. City of Edgerton, 143 Mo. 563, se Smith v. Skagit County Com'rs, 45 S. W. 293. 45 Fed. 725; People v. City of River- as People v. Town of Linden, 107 side, 70 Cal. 461; State v. Frost, 103 Cal. 94, 40 Pac. 115; City of Ward- Tenn. 685. ner v. Pelkes (Idaho) 69 Pac. 64. 19 CREATION AND DISSOLUTION 35 proper officers, as provided by law; 37 and be either filed, posted or published for the length of time required by controlling statutory provisions. 38 19. The election. After the petition for election has been properly prepared and notice given, the voters of the district proposed to be incorpo- rated pass upon the question at an election called by the legal officers at the time and in the manner as directed by law. 39 At such election an official enumeration of the inhabitants within the proposed district is not necessary if the proper officers make a record, relative to the number of inhabitants, in their pro- ceedings declaring the result of the election, 40 and only duly qualified voters are permitted to pass upon the questions sub- mitted. 41 Under Minnesota Laws of 1893, c. 143, all the propositions in regard to the creation of the new county must be submitted to the electors. Only one of these, however, can be adopted. 42 In California it was held where after the election the board 37 Smith v. Skagit County Com'rs, 45 Fed. 725; People v. Snedeker, 30 App. Div. 1, 51 N. Y. Supp. 768. ss Butler v. Walker, 98 Ala. 358; People v. Town of Linden, 107 Cal. 94, 40 Pac. 115; State v. Town of Winter Park, 25 Fla. 371; Town of Woo-Sung v. People, 102 111. 648. But it is held in Iowa that no no- tice is necessary to property own- ers within the territory proposed to be incorporated or annexed until after the court acts judicially in the matter. Ford v. Town of North Des Moines, 80 Iowa, 626, 45 N. W. 1031. Smith v. Crutcher, 92 Ky. 586; Gardner v. Christian, 70 Hun (N. Y.) 547; People v. Carpenter, 24 N. Y. 86; City of Guthrie v. Ter., 1 Okl. 188; Ruohs v. Town of Athens, 91 Tenn. 20. 39 People v. Gunn, 85 Cal. 238; Slate v. City of Blue Ridge, 113 Ga. 646, 38 S. E. 977; State v. Town of Westport, 116 Mo. 582, 22 S. W. 888; State v. Town of Tipton, 109 Ind. 73, 9 N. E. 704. Smith v. Skagit County Com'rs, 45 Fed. 725. People v. Hecht, 105 Cal. 621; State v. McGowan, 138 Mo. 187, 39 S. W. 771; State v. Honerud, 66 Minn. 32; State v. Crow Wing County Com'rs, 66 Minn. 519; State v. Red Lake County Com'rs, 67 Minn. 352, 69 N. W. 1083; In re Village of Sag Harbor, 32 Misc. 624, 67 N. Y. Supp. 574; State v. Parler, 52 S. C. 207, 29 S. E. 651; Segars v. Parrott, 54 S. C. 1, 31 S. E. 677, 865; Cocke v. Gooch, 52 Tenn. (5 Heisk.) 294; State v. Weingarten, 92 Wis. 599, 66 N. W. 716; Freemont County Com'rs v. Perkins, 5 Wyo. 166. 42 State v. Red Lake County Com'rs, 67 Minn. 352, 69 N. W. 1083. 36 CORPORATE LIFE; EXISTENCE. 20 learned that only a part of the one hundred petitioners required by law were bona fide residents, that it could not be compelled to canvass the returns. 43 Where ballots read "against corporation" instead of "against village organization under the general law," it was held im- proper in Illinois to refuse to count them, 44 and where a certifi- cate of inspectors at such an election failed to show the reason why three votes were rejected, this did not invalidate it. 45 20. Subsequent official action. Upon the affirmative vote of the number required by law to organize certain territory into a public corporation, the statutes of a state generally require action by some official body or pub- lic officer declaring the result, 46 and following such declaration the district as an incorporation comes into existence. 47 This official action is generally held to be judicial in its character, 48 not ministerial; and the correctness of findings by such body or official upon questions coming within their jurisdiction usually cannot be raised on appeal nor in an attack on the validity of corporate acts after organization. 49 The manner and time of meeting by such official or body, and adjournments, are discretionary. 50 Neither is it necessary that a permanent official record, in detail, be made of their proceed- ings. 61 Sometimes duties devolving upon such body may be per- formed by their successors, 52 and the strict rules obtaining in Page v. Los Angeles County Summit Borough, 114 Pa. 362, 7 Sup'rs, 85 Cal. 50. Atl. 219. <* People v. Hanson, 150 111. 122, 48 Seabrook v. Fowler, 67 N. H. 36 N. E. 998, 37 N. E. 580. See, 428; Word v. Schow, 29 Tex. Civ. also, State v. Town of Westport, 116 App. 120, 68 S. W. 192; Grunert v. Mo. 582. Spalding (Wis.) 78 N. W. 606. State v. Lammers, 113 Wis. 4 Hill v. City of Kahoka, 35 Fed. 398, 86 N. W. 677, 89 N. W. 501. 32; Kansas Town & Land Co. v. 46 Ruohs v. Town of Athens, 91 City of Kensington, 6 Kan. App. Tenn. 20, 18 S. W. 400; State v. 247, 51 Pac. 804; Appeal of Gross, Goodwin, 69 Tex. 55, 5 S. W. 678; 129 Pa. 567, 18 Atl. 557. Huff v. Preuitt (Tex. Civ. App.) 53 so People v. Town of Linden, 107 S. W. 844. . Cal. 94, 40 Pac. 115. 47 Ter. v. Town of Jerome (Ariz.) si people v. Garner, 47 111. 246. 64 Pac. 417; Taylor v. City of Ft. 52 Davenport & R. I. Bridge R. & Wayne, 47 Ind. 274; State v. Bilby, Terminal Co. v. Johnson, 188 111. 60 Kan. 130, 55 Pac. 843; In re 472, 59 N. E. 497. 21 CREATION AND DISSOLUTION. 37 regular courts will not control the introduction of evidence be- fore them. 08 21. Incorporation without an election. The creation of a public corporation or a change of grade through affirmative action may result from the casting of the required number of votes at an election held in the manner and under the authority suggested by preceding paragraphs, or the statutes may give to a board of supervisors, county commission- ers, or other official body, or some public officer, the power to pass upon the regularity and sufficiency of the proceedings for incorporation, and declare the legal result. 54 In such cases a petition signed by the required percentage of the qualified resi- dents of that territory, and presented to the proper tribunal, if complying with all the provisions of the statute, induces official action with the same result. The questions usually raised, when this last condition exists, go to the power or jurisdiction of an official or an official body to entertain the petition and pass upon the facts therein recited, the proceedings, and presentation of evidence, 55 the legal nature of their decisions 58 irrespective of the character of the body, whether ministerial or judicial, and vari- ous ministerial and clerical duties 57 to be performed by the official or body, such as the filing or acknowledgment of a plat or map of the proposed corporation, the petition, the official record of their proceedings, with its averments. 58 Further and important questions are often raised, namely, the sufficiency of the official order declaring the incorporation and the fact of its filing or record. 59 es Matthews v. Otsego County of Taylor, 160 Pa. 475; State v. Sup'rs, 48 Mich. 587. Goowin, 69 Tex. 55, 5 S. W. 678. s* Mendenhall v. Burton, 42 Kan. 57 Davenport & R. I. Bridge R. & 570, 22 Pac. 558; In re Borough of Terminal Co. v. Johnson, 188 111. Osborne, 101 Pa. 284; Ford v. 472, 59 N. E. 497; Inhabitants of Farmer, 28 Tenn. (9 Humph.) 152; Plantation No. 9 v. Bean, 40 Me. Ryan v. Evans, 49 Tex. 364. 218; Appeal of Gross, 129 Pa. 667, 55 Matthews v. Otsego County 18 Atl. 557. Sup'rs, 48 Mich. 587. ss Kansas Town & Land Co. v. 68 Hill v. City of Kahoka, 35 Fed. City of Kensington, 6 Kan. App. 32; Attorney General v. Page, 38 247; State v. Peterson (Tex. Civ. Mich. 286; Rousey v. Wood, 63 Mo. App.) 29 S. W. 415; State v. Broach App. 460; State v. Fleming, 147 (Tex. Civ. App.) 35 S. W. 86. Mo. 1, 44 S. W. 758; In re Borough 6 Ter. v. Town of Jerome (Ariz.) 38 CORPORATE LIFE; EXISTENCE. 22 22. The charter of a public corporation and its legal nature. The charter of a corporation is its legal authority to exist and exercise its powers as such. It may be a written instrument, or its existence may not be actual but presumed, through either the doctrines of prescription or implication. One of the fundamental differences, it might be said the essen- tial difference, between a public and a private corporation, is that in the case of a private corporation the charter is regarded as a contract under that clause in the constitution of the United States forbidding the states from passing any law impairing tne obligation of a contract. The charter of a public corporation is not considered a contract, nor does it come within the doctrine of the Dartmouth College Case. 60 The reason for this difference of holding may be briefly stated : A public corporation, a municipal corporation considered in its character as a public corporation, and a public quasi corporation, are each and all regarded as agencies of the government. They are involuntary political or civil divisions of the state created by authority of law to aid in the administration of government. Whatever of power they possess, or whatever of duty they are required to perform, originates in the authority creating them. They are organized, mainly for the interest, advantage and convenience of the people residing within their territorial boun- daries and the better to enable the government, the sovereign, 64 Pac. 417; People v. Town of Lin- Prince v. Crocker, 166 Mass. 347; den, 107 Cal. 94, 40 Pac. 115; Tay- Berlin v. Gorham, 34 N. H. 266; lor v. City of Ft. Wayne, 47 Ind. state v. Holden, 19 Neb. 249; City 274; State v. Tucker, 48 Mo. App. O f Paterson v. Society for Establish- 531; Woods v. Henry, 55 Mo. 560; ing Useful Manufactures, 24 N. J. People v. Snedeker, 30 App. Div. 1, Law (4 Zab.) 385; Mills v. Wil- 51 N. Y. Supp. 768; In re Summit Hams, 33 N. C. (11 Ired.) 538; Borough, 114 Pa. 362. Sharpless v. City of Philadelphia, 21 so Trustees of Dartmouth College p a . 147; city of Erie v. Erie Canal v. Woodward, 4 Wheat. (U. S.) 518; Co., 59 Pa. 174; City of Philadel- Butler v. Pennsylvania, 10 How. p hi a v. Fox, 64 Pa. 169; Town of (U. S.) 402; State Bank of Ohio v. Montpelier v. Town of East Mont- Knoop, 16 How. (U. S.) 369; Town pe iier, 29 Vt. 12; Reeves v. Ander- of Mt. Pleasant v. Beckwith, 100 U. SO n, 13 Wash. 17; Washburn v. City S. 514; Newton v. Mahoning Coun- o f Qshkosh, 60 Wis. 453. See, also, ty Com'rs, 100 U. S. 548; Hewison a n cases cited in the notes to this v. City of New Haven, 37 Conn, section. 475; Cain v. Brown, 111 Mich. 657; 22 CREATION AND DISSOLUTION. 39 to extend to them the protection to which they are entitled, and the more easily and beneficently to exercise over them its authority. The powers which they exercise in their public capacity are powers of the state, and the duties with which they are charged are duties of the state. 61 The rights conferred upon the people residing within the limits of these organizations are political in their character, and it has been said that "It is an unsound and even absurd proposi tion that political power conferred by the legislature can be come a vested right as against the government in any individual or body of men." Entirely different conditions exist and prin- ciples apply to private corporations so familiar to all that it is unnecessary to repeat them. 62 Not being a contract, therefore, the state has the power to alter, amend, change or repeal the charter of a public corpora tion at will. "A municipal corporation (in a broad sense) may be viewed in different aspects; that which it has to the citizen and that which it bears to a state. Seen in the latter relation it is a revocable agency constituted for the purpose of carrying out in detail such objects of the government as may be properly intrusted to a subordinate; having no vested right to any of its forms or franchises, and entirely under the control of the legislature, which may enlarge or circumscribe its territorial lim- its or functions, may change or modify its various departments, or extinguish it with the breath of arbitrary power." 83 ei Askew v. Hale County, 54 Ala. change the character of the Institu- 639. tion in that respect or give the leg- 62 People v. Morris, 13 Wend. (N. islature any power over it. The Y.) 325. right to change civil institutions is ss 1 Hare, Const. Law, p. 628; Meri- not founded on their being incor- wether v. Garrett, 102 U. S. 472; porated but on their being the in- Terrett v. Taylor, 9 Cranch (U. S.) struments of government created 43; City of Covington v. Com. of for its purposes. Kentucky, 173 U. S. 231, 19 S. Ct. The grant of political power 383. gives to the legislature the right Allen v. McKean, 1 Sumn. 276, to modify or repeal it. University Fed. Cas. No. 229. The fact that of Alabama v. Winston, 5 Stew. & the purpose of the corporation is an P. (Ala.) 17; Hewison v. City of object of national concern and a New Haven, 37 Conn. 475; Shorter proper subject for legislation does v. Smith, 9 Ga. 517; County of not render it a public institution, Richland v. County of Lawrence, 12 nor does the fact of incorporation 111. 1; City of Louisville v. Uni- 40 CORPORATE LIFE; EXISTENCE. 22 A legislative body cannot part with its powers or delegate them to subordinate agencies so as to be unable to exercise them on all suitable occasions. 84 In the Hartford Bridge Case just cited, the supreme court of the United States held that the legis- lature of a state might lawfully repeal or discontinue a ferry franchise granted to a municipal corporation. Judge Wood- bury remarked that towns and cities which are public municipal and political bodies "are incorporated for public and not pri- vate objects. They are allowed to hold privileges or property only for public purposes. The members are not shareholders, nor joint partners in any corporate estate, which they can sell or devise to others, or which can be attached and levied on for their debts. Hence, generally, the doings between them and the legislature are in the nature of legislation rather than com- pact and subject to all the legislative conditions just named, and therefore to be considered as not violated by subsequent legislative changes." 65 The power to alter, amend or repeal the charter of a public corporation must necessarily exist without limitation in the sovereign, otherwise there would be "number- less petty governments existing within the state, forming a part of it, but independent of the control of the sovereign power. ' ' versity of Louisville, 54 Ky. (15 B. "There is no contract between the Mon.) 642; Layton v. City of New state and the public that the char- Orleans, 12 La. Ann. 515; Bradford ter of a city shall not be at all v. Gary, 5 Me. (5 Greenl.) 339; times subject to legislative control. City of Hagerstown v. Dechert, 32 All persons who deal with such Md. 369; Cobb v. Kingman, 15 Mass, bodies are conclusively presumed to 197; Trustees of Public Schools v. act upon knowledge of the power of Taylor, 30 N. J. Eq. (3 Stew.)' 618; the Legislature. There is no such Berlin T. Gorham, 34 N. H. 266; thing as a vested right held by any Weeks v. Gilmanton, 60 N. H. 500; individual in the grant of legisla- Davidson v. City of New York, 27 tive power to them." How. Pr. (N. Y.) 342; Town of The doctrine stated in the text is Marietta v. Fearing, 4 Ohio, 427; so conclusively established and so People v. Morris, 13 Wend. (N. Y.) widely held by all courts that it is 325; Howell v. Eldridge, 21 Wend, considered useless to multiply cita- (N. Y.) 679; Gray v. City of Brook- tions. lyn, 2 Abb. Dec. (N. Y.) 267; Mor- e* Town of East Hartford v. Hart- ris'v. State, 62 Tex. 728; Bass v. ford Bridge Co., 10 How. (U. S.) Fontleroy, 11 Tex. 698; McCallie v. 511. City of Chattanooga, 40 Tenn. (3 es See, also, Trustees of Schools Head) 317. v. Tatman, 13 111. 30; City of New In the Meriwether v. Garrett Case Orleans v. Hoyle, 23 La. Ann. 740. (102 U. S. 472) Justice Field said, 23 CREATION AND DISSOLUTION. 41 "Public or municipal corporations are established for the local government of towns or particular districts. The special pow- ers conferred upon them are not vested rights as against the state, but being wholly political, exist only during the will of the general legislature; otherwise there would be numberless petty governments existing within the state and forming part of it, but independent of the control of the sovereign power. Such powers may at any time be repealed or abrogated by the legis- lature, either by a general law operating upon the whole state, or by a special act altering the powers of the corporation." 66 On the other hand, the grant of authority from the state to a private corporation is considered a contract, within the rule as announced in the Dartmouth College Case, subject only to change or repeal by the sovereign upon the terms and conditions which may be found within the instrument itself or which exist in the general laws as a part of it. This doctrine is so firmly establish- ed in the jurisprudence of the United States that a mere refer- ence to it is sufficient, and authorities will be found in every state in the Union sustaining it. 23. Rules of construction. The better rule for the construction of the charter of a public corporation, and that sustained by the weight of authority, is what may be termed the rule of strict construction. The cor- poration takes nothing by its cfiartcr but what is plainly and unequivocally granted. This is especially true of all those pow- ers, the exercise of which, if liberally considered, might lead to the placing of illegal, unjust or burdensome obligations upon the taxpayers of the community. The officers of public corpora- tions are notoriously slack in their administration of public affairs. "It is a well-settled rule of construction of grants by the legislature to corporations, whether public or private, that only such powers and rights can be exercised under them as are clear- ly comprehended within the words of the act, or derived there- from by necessary implication, regard being had to the objects ee Sloan v. State, 8 Blackf. (Ind.) pie v. Morris, 13 Wend. (N. Y.) 361; Armstrong v. Dearborn County 325. Com'rs, 4 Blackf. (Ind.) 208; Peo- 42 CORPORATE L T FE; EXISTENCE. 23 of the grant. Any ambiguity or doubt arising out of the terms used by the legislature must be resolved in favor of the pub- lic." 67 If there is doubt as to the existence of power, the exer- cise of that power should be denied. However, it has been held that if contracts have been made and labor and material furnish- ed upon a particular construction of a city charter with the general acquiescence of the inhabitants, that construction will be sustained if possible though it may differ from the rule given above. 68 And as a further modification of this rule it has been held by the supreme court of the United States that "although neither privileges, powers nor authorities can pass by an act of incor- poration unless they be given in unambiguous words, and an act giving special privileges must be construed strictly, in a case where a sentence is capable of two distinct meanings, it must be construed according to the subject-matter contemplated by the legislature, as a whole, and its manifest intention and design not defeated/' 69 In this connection it is also well to state that the rule of strict construction is not applied to such a degree as to defeat the purposes for which the corporation was organ- ized; 70 and this is especially true if, in the adoption of a more liberal rule, a power can be exercised which, as Judge Cooley "Minturn v. Larue, 23 How. (U. 1 Clark, Ch. (N. Y.) 223; Bank of S.) 435; Thompson v. Lee County, Pennsylvania v. Com., 19 Pa. 144; 3 Wall. (U. S.) 327; Thomas v. Ex parte Coombs, 38 Tex. Cr. App. City of Richmond, 12 Wall. (U. S.) 648, 44 S. W. 854; Reeves v. An- 349; Jefferson v. Bank of Skelly, 1 derson, 13 Wash. 17. Black (U. S.) 436; Douglass v. es Memphis v. Brown, 97 U. S. City of Placerville, 18 Cal. 643; In 300. re Bulger, 45 Cal. 553; Brooks v. eo Curtis v. County of 'Butler, 24 Fischer, 79 Cal. 173; Bradley v. How. (U. S.) 435; Gelpcke v. Du- New York & N. H. R. Co., 21 Conn, buque, 68 U. S. (I Wall.) 220; Mo- 294; McGarty v. Deming, 51 Conn, ran v. Miami County Com'rs, 2 422; Clark v. City of Davenport, 14 Black (U. S.) 722; City & County Iowa, 494; City of Leavenworth v. of St. Louis v. Alexander, 23 Mo. Norton, 1 Kan. 432; City of Cov- 483. ington T. Boyle, 69 Ky. (6 Bush) TO Thomason v. Ashworth, 73 Cal. 204; Tyler's Ex'r v. Elizabethtown, 73; San Diego v. Granniss, 77 Cal. 72 Ky. (9 Bush) 510; Leonard V. 511; Smith v. City of Madison, 7 City of Canton, 35 Miss. 189; Day v. Ind. 86; Kyle v. Malin, 8 Ind. 34; City of Morristown, 63 N. J. Eq. Torrent v. City of Muskegon, 47 353, 46 Atl. 1098; Parker v. Baker, Mich. 115. 24 CREATION AND DISSOLUTION. 43 said in a Michigan case, "in its exercise concerns only the municipality and can wrong or injure no one." 11 The general rule applies with all its force to words of exemp- tion in the charter. 72 Charter powers, it is clear, cannot be ex- tended by an unusual or unauthorized construction of its terms, and it is equally certain that no public corporation can itself, by giving such construction, or interpretation, acquire powers not granted. 73 "Words should be taken in their ordinary sense and meaning as affected by local conditions, and, where no superior or controlling reasons exist for holding otherwise, that cardinal and elementary principle in the interpretation of statutes should be also applied, namely, that the true intent and meaning of the words used is to be ascertained by an examination of the grant of power as a whole. 74 24. The charter considered as evidence. It is generally held that the act of incorporation or charter of a public corporation or municipality is a public act of which the courts will take judicial notice, but acts, votes and ordinances are not public matters and must be specially pleaded and proved. 75 But in Iowa it is held that when a city or town is in- corporated by special act, the courts will take judicial notice of its incorporation; otherwise when it is incorporated under a general act. There the court says the fact of its corporate char- acter must be pleaded and proved. 76 Where an original city charter contained an express pro- vision declaring it a public act, it was held, in a New Jersey 71 City of Port Huron v. McCall, Dubuque v. City of Dubuque, 7 46 Mich. 565. Iowa, 262; Holland v. City of Balti- 72 Borough of Truro v. Reynalds, more, 11 Md. 186; Com. v. Dejardin, 1 Moore & S. 272; Lord Middleton 126 Mass. 46; Verdin v. City of St. v. Lambert, 1 Adol. & E. 401. Louis, 131 Mo. 26; Ruschenberg v. TS Butler v. City of Charlestown, Southern Elec. R. Co., 161 Mo. 70; 73 Mass. (7 Gray) 12; Ritterskamp Kirkham v. Russell, 76 Va. 956. v. Stifel, 59 Mo. App. 510; City of " Beaty v, Knowles, 4 Pet. (U. Brookfield v. Kitchen, 163 Mo. 546. S.) 152; People v. Potter, 35 Cal. But see Frazier v. Warfield, 13 Md. 110; Stier v. City of Oskaloosa, 41 279. Iowa, 353; Briggs v. Whipple, 7 Vt. 74 Chicago Dock & C. Co. v. Gar- 15; Winooski v. Gokey, 49 Vt. 282. rity, 115 111. 155; Webber v. City of Hard v. City of Decorah, 43 Chicago, 148 111. 313; District Tp. of Iowa, 313. 44 CORPORATE LIFE; EXISTENCE. 25 case, 77 that supplements or amendments to it would be treated likewise as public acts, and would be judicially noticed without pleading, although they might not contain the same provision. In the framing of a city charter, it has been decided that where two of the fifteen freeholders chosen to prepare it, as provided by the constitution, were ineligible, the remaining thirteen were com- petent to organize and act as such board ; 78 and where the charter of a municipal corporation contained a mistake, the supreme court of New Hampshire held 79 that it could not be corrected by a court of law in a suit between individuals. 25. Acceptance. A public corporation being so emphatically and distinctly a governmental agent under the control and absolute will of the state, it follows that there is no necessity for provisions in a proposed charter or act of organization looking to or providing for its acceptance by the people residing within the limits of the territory affected. In this respect the law again is the direct antithesis of that re- lating to the acceptance of the charter of a private corporation by its incorporators. The charter of a private corporation can- not be arbitrarily forced upon its members by the state, and their acceptance is one of the essentials of a legal private cor- poration. To this rule there is no dissent. 80 Although the prin- " Hawthorne v. City of Hoboken, 297; Haslett's Ex'rs v. Wotherspoon, 32 N. J. Law, 172. See, also, Ste- 1 Strob. Eq. (S. C.) 209; Lincoln & phens & C. Transp. Co. v. Central K. Bank v. Richardson, 1 Me. (1 R. Co., 33 N. J. Law, 229; Bowie v. Greenl.) 81. Contra, as to public City of Kansas, 51 Mo. 454. corporations: Dillon, Mun. Corp. TS People v. Hecht, 105 Cal. 621. (3d Ed.) 44; State v. Curran, 7 Proprietors of Enfield v. Per- 12 Ark. 321; People v. Wren, 5 111. mit, 5 N. H. 280. (4 Scam.) 269; Warren v. City of so? Thompson, Corp. 8160; 1 Charlestown, 68 Mass. (2 Gray) Clark & M. Private Corp. 44, and 104; State v. Haines, 35 Or. 379, cases cited; 1 Cook, Stock & S. 2 Mun. Corp. Cas. 430; Morford 640; Ellis v. Marshall, 2 Mass. 269; v. Unger, 8 Iowa, 82; Fire Depart- Inhabitants of Hampshire County ment v. Kip, 10 Wend. (N. Y.) 267; v. Inhabitants of Franklin County, People v. City of Butte, 4 Mont. 16 Mass. 76; 2 Kent, Comm. 277; 174; Inhabitants of Gorham v. In- Lexington & W. C. R. Co. v. Chan- habitants of Springfield, 21 Me. 58; dler, 54 Mass. (13 Mete.) 315; Berlin v. Gorham, 34 N. H. 266; Wright v. Tukey, 57 Mass. (3 Gush.) People v. Stout, 23 Barb. (N. Y.) 26 CREATION AND DISSOLUTION. 45 ciple that a charter is a law and will take effect without the con- sent of those who are to be governed and whose property may be affected bj r it is well established, yet, it is customary, in the granting of charters to municipal corporations proper, to permit a vote of the people upon the question of acceptance, 81 and this fact leads, as will be learned, to material differences in the lia- bilities of such corporations as compared with those where the instrument of government is arbitrarily imposed. An accept- ance is usually evidenced by a vote of the people given at an election held at the time and in the manner prescribed by law, 82 though some cases hold that it may be implied from acts done by the people under some provision of the proposed charter. 83 26. Distinction between a public quasi and a municipal cor- poration in this regard. An essential distinction or difference between a public or a public quasi corporation and a municipal corporation is logically considered here. "Municipal corporations proper are called into existence either at the direct solicitation or by the free consent of the people who compose them. Counties (and the same applies to other public and public quasi corporations) are local subdivisions of a state created by the sovereign power of the state of its own sovereign will, without the particular solicitation, consent or concurrent action of the people who inhabit them. The former organization is asked for, or at least assented to, by the people it embraces; the latter is superimposed by a sovereign and para- mount authority. 349; State v. Babcock, 25 Neb. 709. J. Law (4 Zab.) 385; Foote v. City When acceptance may be requisite: of Cincinnati, 11 Ohio, 408; Bull v. Zabriskie v. Cleveland, C. & C. R. Read, 13 Grat. (Va.) 78. Co., 23 How. (U. S.) 381. 82 See cases cited in preceding si People v. McFadden, 81 Cal. note; City of Brunswick v. Finney, 489; People v. Salomon, 51 111. 37; 54 Ga. 317; Stephens v. People, 89 Clarke v. Rogers, 81 Ky. 43; Call v. 111. 337; State v. Tosney, 26 Minn. Chadbourne, 46 Me. 206; Prince 262; State v. Town of Westport, George's County Com'rs v. Village of 116 Mo. 582; People v. City of Butte, Bladensburg, 51 Md. 465; City of 4 Mont. 174; Smith v. McCarthy, 66 St. Louis v. Russell, 9 Mo. 507; Pa. 359; Ewing v. State, 81 Tex. State v. Noyes, 30 N. H. 279; City 172. of Paterson v. Society for Estab- sa Rex v. Hughes, 1 Man. & R. lishing Useful Manufactures, 24 N. 625, 7 Barn. & C. 708; City of 46 CORPORATE LIFE; EXISTENCE. 26 "A municipal corporation proper is created mainly for the interest, advantage and convenience of the locality and its peo- ple; 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 transport, and especially for the general administration of justice. With scarcely an exception all the powers and functions of the county organization have a direct and exclusive reference to the general policy of the state, and are, in fact, but a branch of the general administration of that policy." 84 The doctrine of this case is sustained without exception by the authorities, and it follows from an examination of the cita- tions that the charter of a public or a public quasi corporation may be, and usually is, arbitrarily imposed upon the people residing within a certain district; 85 while, on the other hand, there exists, or may exist, as already stated, the necessity of an acceptance or an assent by the people affected to the imposition otf a charter or other organic form of government upon a municipality. 86 The history and mode of organization of Eng- Lafayette v. Jenners, 10 Ind. 70; se Rex v. Mayor of Bridgewater, Taylor v. Newberne Com'rs, 55 N. 11 Mod. 291; Rex v. Larwood, 1 Ld. C. (2 Jones Eq.) 141. Raym. 29; City of Brunswick v. s* Hamilton County Com'rs v. Finney, 54 Ga. 317; Slate v. City of Mighels, 7 Ohio St. 109; citing Ward Blue Ridge, 113 Ga. 646, 38 S. E. v. Hartford County, 12 Conn. 406; 977; State v. Hertsch, 136 Ind. 293, Boalt v. Williams Com'rs, 18 Ohio, 36 N. E. 213; Poor v. People, 142 16; Cincinnati, W. & Z. R. Co. v. 111. 309; Morford v. Unger, 8 Iowa, Clinton County Com'rs, 1 Ohio St. 82; State v. Olinger (Iowa) 72 N. 89. W. 441; Stone v. City of Charles- 85 Inhabitants of Gorham v. In- town, 114 Mass. 214; Ray v. De habitants of Springfield, 21 Me. 58; Butts, 180 Mass. 155, 61 N. E. 887; Swett v. Sprague, 55 Me. 190. As City of Jackson v. Shlomberg, 70 to a "city of the second class." Miss. 47, 11 So. 721; State v. Govan, State v. Holden, 19 Neb. 249; State 70 Miss. 535, 12 So. 959; City of St. v. Babcock, 25 Neb. 709; Berlin v. Louis v. Russell, 9 Mo. 507; Ewing Gorham, 34 N. H. 266; State v. v. Hoblitzelle, 85 Mo. 64; Kelly v. Haines, 35 Or. 379, 58 Pac. 39; Meeks, 87 Mo. 396; People v. City Wood v. Quimby, 20 R. I. 482, 40 of Butte, 4 Mont. 174; State v. Atl. 161; Blessing v. City of Gal- Noyes, 30 N. C. (10 Fost.) 279; City veston, 42 Tex. 641; Lum v. City of Paterson v. Society for Estab- of Bowie (Tex.) 18 S. W. 142. lishing Useful Manufactures, 24 N. 27 CREATION AND DISSOLUTION. 47 lish municipalities must be considered in determining the rele- vancy and force of English citations. No specific form of acceptance of a charter under the old methods of creation was provided, and the courts therefore held that any unequivocal act showing a desire and intention to ac- cept the same would be sufficient, provided it was done by a majority of the grantees, 87 and the assent of the incorporators at large might be presumed from long acquiescence in the acts and declarations of the officers of the municipality. 88 27. Amendment of the charter. The legislature, in the absence of constitutional restriction, has the power to amend, alter or repeal, directly or indirectly, the charters of all public corporations, the sole limitation upon his rule being that the rights or existing creditors or contract obligations to third parties cannot be impaired or destroyed. 89 The amendment of an existing charter may be effected through the passage of legislation directly amending charter provisions, in case of municipal corporations, subject to the vote of the peo- J. Law (4 Zab.) 385; De Hart v. 89 Von Hoffman v. City of Quincy, Atlantic City, 62 N. J. Law, 586, 4 Wall. (U. S.) 535; Lee County v. 41 Atl. 687; Corning v. Greene, 23 Rogers, 7 Wall. (U. S.) 181; Butz Barb. (N. Y.) 33; Bank of Chenan- v. City of Muscatine, 8 Wall. (U. go v. Brown, 26 N. Y. 467; People S.) 575; Broughton v. Pensacola, v. Stout, 23 Barb. (N. Y.) 349; 93 U. S. 266; Mount Pleasant v. Com. v. Cullen, 13 Pa. 133; In re Beckwith, 100 U. S. 514; Port of Vacation of Henry St., 123 Pa. 346; Mobile v. Watson, 116 U. S. 289; State v. Bean, 26 Tex. Civ. App. Brewis v. City & Village of Duluth, 605, 65 S. W. 202; State v. La- 13 Fed. 334; Pacific Imp. Co. v. moureux, 3 Wyo. 731, 30 Pac. 243. City of Clarksdale, 20 C. C. A. 635, ST Rex v. Hughes, 7 Barn. & C. 74 Fed. 528; Amy v. City of Selma, 708. See, also, Russell v. McLellan, 77 Ala. 103; Smith v. Morse, 2 Cal. 31 Mass. (14 Pick.) 63; Bank of U. 524; City of Olney v. Harvey, 50 S. v. Dandridge, 12 Wheat. (U. S.) 111. 453; Boyd v. Chambers, 78 Ky. 64-71; Taylor v. Newberne Com'rs, 140; Ross v. Wimberly, 60 Miss. 55 N. C. (2 Jones Eq.) 141; Owen 345, overruling Port Gibson v. v. Purdy, 12 Ohio St. 73. Moore, 21 Miss. (13 Smedes & M.) ss Com. v. Cullen, 13 Pa. 133. This 157; Scaine v. Inhabitants of Belle- case is also authority for the propo- ville, 39 N. J. Law, 526; Brooklyn sition that a failure to elect offi- Park Com'rs v. Armstrong, 45 N. Y. cers does not work a dissolution 234; State v. City of Milwaukee, 25 while the capacity to elect remains. Wis. 122. 48 CORPORATE LIFE; EXISTENCE. 27 pie of the municipality, in the same manner as the acceptance of or assent to the original charter. 90 The act amending a charter of a corporation may be so drastic in its terms that it will be necessary, in order to transfer to the new the particular powers of the old corporation, to provide an o Girard v. City of Philadelphia, v. Marsh Oil Co., 140 Mo. 458, 41 S. 74 U. S. (7 Wall.) 1; Essex Board W. 943; Kansas City v. Stegmiller, v. Skinkle, 140 U. S. 334; Baader v. 151 Mo. 189, 52 S. W. 723; State v. City of Cullman, 115 Ala. 539; Peo- Union, 33 N. J. Law, 350; State v. pie v. City of Coronado, 100 Cal. 571; City of Passaic, 38 N. J. Law, 171; Blanchard v. Hartwell (Cal.) 62 Pac. Attorney-General v. Shepard, 62 N. 509; Banaz v. Smith, 133 Cal. 102, H. 383; Wallace v. Trustees, 84 N. 65 Pac. 309; Wiggin v. City of Lew- C. 164; Armitage v. Fisher, 4 Misc. Iftton (Idaho) 69 Pac. 286; Coving- 315, 24 N. Y. Supp. 650; People v. ton v. City of East St. Louis, 78 Dooley, 171 N. Y. 74; Philadelphia 111. 548; Guild v. City of Chicago, v. Fox, 64 Pa. 169; William's Ap- 82 111. 472; Crook v. People, 106 111. peal, 72 Pa. 214; State v. Denny, 237; Martin v. People, 87 111. 524; 4 Wash. 135, 29 Pac. 991; Wade v. Eichels v. Evansville St. R. Co., 78 City of Tacoma, 4 Wash. 85, 29 Pac. Ind. 261; Davis v. Woolnough, 9 983. Iowa, 104; Elliott v. City of Louis- The extension of the limits of a ville, 101 Ky. 262, 40 S. W. 690; city held not an amendment to its City of Annapolis v. State, 30 Md. charter. State v. Warner, 4 Wash. 112; Powell v. Jackson Common 773; Pierce v. City Clerk of Spo- Council, 51 Mich. 129; Elliott v. City kane, 7 Wash. 132; Reeves v. Ander- of Detroit, 121 Mich. 611, 84 N. W. son, 13 Wash. 17; State v. Doherty, 820; State v. Copeland, 66 Minn. 315, 16 Wash. 382. 69 N. W. 27; Flynn v. Little Falls Roby v. Sheppard, 42 W. Va. 286. Elec. & Water Co., 74 Minn. 180, 77 A special statute amending charter N. W. 38, 78 N. W. 106. of town of more than 2,000 inhabi- Hopkins v. City of Duluth, 81 tants by annexing territory includ- Minn. 189, 83 N. W. 536. Const, ed in another town is not an amend- art. 4, 36, providing that new ment of the charter of the latter charters or amendments should be town, in violation of Const, art. 6, submitted for ratification to the vot- 39. ers of the city whose charter it Shank v. Town of Ravenswood, was proposed to change, not a vio- 43 W. Va. 342; Thompson v. City lation of art. 4, 4, Constitution of of Milwaukee, 69 Wis. 492, 34 N. W. the United States providing that 402. "the United States shall guarantee Smith v. Sherry, 50 Wis. 210. Un- to every state in this Union a repub- der Wisconsin Const, art. 4, 31-32, lican form of government." as amended in 1871, the legislature Sellick v. Town of Fayette, 3 Mo. has no power by special act to 99; State v. City of St. Louis, 73 amend town or village charter grant- Mo. 435; City of Westport v. Kansas ed prior to 1871. City, 103 Mo. 141; City of St. Louis Adams v. City of Beloit, 105 Wis. v. Dorr, 145 Mo. 466; Kansas City 363, 81 N. W.' 869; Oshkosh Water- 28 CREATION AND DISSOLUTION. 49 enabling clause empowering the new corporation to act in the particular case or a general clause embracing the particular case. 91 28. By implication or indirection. An amendment is often effected by the passage of acts control- ling or relating to certain powers or duties of a municipality, and which in their terms are different from existing charter pro- visions regulating the same matters; the courts hold in these cases that the effect of such legislation is to amend or change the provisions of existing law. 92 Amendments or repeals by impli- cation are not favored by the courts, however, and unless the works Co. v. City of Oshkosh, 109 Wis. 208, 85 N. W. 376. Kansas City v. Stegmiller, 151 Mo. 189. An amendment of a city char- ter takes effect from the date of its approval, unless otherwise provided by law. In the case of Meriwether v. Gar- rett, 102 U. S. 472, Mr. Justice Field said: "The right of the state to repeal the charter of Memphis can- not be questioned. Municipal cor- porations are mere instrumentali- ties of the State for the more con- venient administration of local gov- ernment. Their powers are such as the Legislature may confer and these may be enlarged, abridged or entirely withdrawn at its pleasure. This is common learning, found in all adjudications on the subject of municipal bodies and repeated by text writers. There is no contract between the State and the public that the charter of a city shall not be at all times subject to legislative control. All persons who deal with such bodies are conclusively pre- sumed to act upon knowledge of the power of the Legislature. There is no such thing as a vested right held by any individual in the grant of legislative power to them." And in Abb. Corp. 1. the dissenting opinion of Mr. Jus- tice Strong is found the following language as illustrative of the doc- trine first stated in this section: "It can make no difference that the city of Memphis was a munici- pal corporation. Its charter as such does not affect the nature of its obli- gations to its creditors, or its ces- tuis que trust, or impair the reme- dies they would have if the city was a common debtor or trustee. While as a municipal corporation the city had public duties to per- form, yet in contracting debts au- thorized by the law of its organ- ization, or in performing a private trust, it is regarded by the law as standing on the same footing as a private individual, with the same rights and duties, and with the same liabilities, as attend such persons. Over its public duties, it may be ad- mitted, the Legislature has plenary authority. Over its private obliga- tions it has not." 91 Fowle v. Common Council of Alexandria, 3 Pet. (U. S.) 398; City of Savannah v. Steamboat Co. of Georgia, R. M. Charlt. (Ga.) 342. 92 Baader v. City of Cullman, 115 Ala. 539, 22 So. 19; In re House Resolution Relating to House Bill 50 CORPORATE LIFE; EXISTENCE. 28 intent clearly appears 93 or the legislation is so inconsistent that all cannot stand, 9 * such an effect will not be given to it. Judge Oooley has said: 95 "Repeals by implication are not favored, and the repugnancy between two statutes should be very clear to warrant a court in holding that the later in time repeals the other when it does not in terms purport to do so. This rule hag peculiar force in the case of laws of special and local application which are never to be deemed repealed by general legislation except upon the most unequivocal manifestation of intent to that effect." The principles above clearly apply where the charter of the municipality exists as special legislation and the amend- ment or repeal is claimed to be affected by a general law or vice versa. 96 The adoption of an amendment to a state constitution is usually considered to amend or repeal all legislation whether 116, 12 Colo. 289. Contra, Horn v. State (Ga.) 40 S. E. 297. Williamson v. City of Keokuk, 44 Iowa, 88. A statute entitled as an amendment embracing objects for- eign to the charter of the city is void under constitutional provision requiring the objects of the law to be expressed in the title. Ford v. Town of North Des Moines, 80 Iowa, 626; Warren v. City of Evansville, 106 Ind. 104; State v. Olinger (Iowa) 72 N. W. 441; So- corro County Com'rs v. Leavitt, 4 Gild. (N. M.) 37; State v. Zimmer- man, 86 Minn. 353, 90 N. W. 783; State v. De Bar, 58 Mo. 395; Worth- ley v. Steen, 43 N. J. Law, 542; City of St. Louis v. Dorr, 145 Mo. 466, 41 S. W. 1094, 46 S. W. 976. Additional powers will be regard- ed as supplemental to the charter, not as an admendment or revision. Sheridan v. City of Salem, 14 Or. 328, 12 Pac. 925; State v. Wall, 47 Ohio St. 499; Erie v. Flint, 8 Pa. Co. Ct. R. 482; State v. District of Narragansett, 16 R. I. 424; King County Com'rs v. Davies, 1 Wash. St. 290. Act of May 23, 1874, dividing cities into classes, held not to affect the city of Wilkesbarre incorporated be- fore the passage of this act. Phoe- nix v. Reynolds, 13 Phila, (Pa.) 522. as Thomason v. Ashworth, 73 Cal. 73; People v. Londoner, 13 Colo. 303; State v. Spaude, 37 Minn. 322; Bow- yer v. City Council of Camden, 50 N. J. Law, 87; Socorro County Com'rs v. Leavitt, 4 Gild. (N. M.) 37; Moran v. Long Island City, 101 N. Y. 439. 94 Bond v. Hiestand, 20 La. Ann. 139; City of Cumberland v. Magrud- er, 34 Md. 381; Flynn v. Little Falls Elec. & Water Co., 74 Minn. 180; People v. O'Neil, 109 N. Y. 251; Buford v. State, 72 Tex. 182. 95 Const. Lim. (6th Ed.) 182. 96 McGarty v. Deming, 51 Conn. 422; City of Griffin v. Inman, 57 Ga. 370; City of East St. Louis v. Max- well, 99 111. 439; Hammond v. Haines, 25 Md. 541; Fish v. Branin, 23 N. J. Law (3 Zab.) 484; Bodine v. Com- mon Council of Trenton, 36 N. J. Law, 198; In re Com'rs of Central Park, 50 N. Y. 493; City of Harris- burg v. Sheck, 104 Pa. 53. 29 CREATION AND DISSOLUTION. 5i general or special, inconsistent or in conflict with it. 97 The rights, however, of third parties, either as creditors or as holding contract obligations, cannot be impaired or destroyed by at- tempts at amendment or repeal whether by legislative act or constitutional amendment. 98 29. Effect of amendments. The discussion of the effect of such amendments or changes by the courts is interesting. It has been held by the supreme court of the United States that neither the identity of a municipal corporation nor its right to hold property devised to it is de- stroyed by a change of its name, an enlargement of its area, or an increase of the number of its corporators. 99 An act incorporated a town with "all the rights, privileges and powers conferred upon" another town by an act of an earlier date. Afterwards additional powers were conferred upon this last named town by an amendatory act. It was held that the first named town obtained no additional powers by vir- tue of such amendatory act. 100 Although the legislature may by special act amend an exist- ing charter, it cannot, under the guise of such amendment, ex- tend the limits of a municipality so as to destroy the corporate existence of adjoining towns incorporated under the general 9" City of East St. Louis v. Amy, corporation, in whole or in part, by 120 U. S. 600; Donahue v. Graham, an amendment of its provisions, or 61 Cal. 276; City of Hagerstown v. substitution of a new charter in Dechert, 32 Md. 369; Trustees of place of the old one, embracing sub- Public Schools v. Taylor, 30 N. J. stantially the same corporators and Eq. (3 Stew.) 618. the same territory, would not be as Town of Mt. Pleasant v. Beck- deemed, in the absence of express with, 100 U. S. 514; Baader v. City legislative declaration otherwise, to of Cullman, 115 Ala. 539; Board of affect the identity of the corporation Councilmen of Frankfort v. Mason, or to relieve it from its previous 100 Ky. 48; Morris v. State, 62 Tex. liabilities. 728. See, also, chapter on legislative Seward v. City of Wilmington, 2 power over public corporations and Marv. (Del.) 189, 42 Atl. 451; O'Con- its limitations and 29-31, post. nor v. City of Memphis, 74 Tenn. 99 Girard v. City of Philadelphia, (6 Lea) 730; Boyd v. Chambers, 78 74 U. S. (7 Wall.) 1. Ky. 140. See, however, Meriwether In Broughton v. City of Pensacola, v. Garrett, 102 U. S. 472. 93 U. S. 266, the court said that a 100 Tatum v. Tamaroa, 14 Fed. change in the charter of a municipal 103. 52 CORPORATE LIFE; EXISTENCE. 30 law. 101 And in Louisiana it is held that public acts empow- ering incorporated towns to amend their charters do not authorize them thereby to extend their privileges or alter the existing authority of the state or parish over their inhabitants. 102 Again it is held that a power granted to municipal corporations to amend their charters does not impliedly give additional rights of taxation. 103 In a Pennsylvania case the court said that "to create a charter is to make one which never existed before; to renew one is to give vitality to one which* has been forfeited, or has expired ; and to extend one is to give an existing charter more time than originally limited." 104 The effect of an amendment naturally increases or diminishes the powers of a corporation, either in the manner and time of their exercise, their number, or the limits within which old powers may be exercised. Where, by an amendment, political or governmental rights, questions or con- ditions are affected, the rule unquestionably is that by superior law the amendment can be made and the right to do this is un- controlled except by constitutional provisions. If, however, the property or vested rights of third parties arising through the ex- istence of a contract obligation or the grant of a remedy are im- paired, lessened or destroyed, the right of amendment does not exist so far as it may violate constitutional provisions protect- ing such rights. The effect under such circumstances is closely allied to that resulting from the repeal of charters and the cases are largely considered under that section. 30. Repeal of charter. The subject of the amendment or change of the organic act creating a public corporation has been briefly considered in the preceding paragraphs, and it can be said that the right to repeal such organic act or charter exists with the same force and to the same extent. 105 Some municipal corporations, owing to consti- 101 in re Extension of Boundaries i* Moers v. City of Reading, 21 of Denver, 18 Colo. 288, 32 Pac. 615. Pa. 188. 102 Cook v. Dendinger, 38 La. Ann. "s state v. City of Mobile, 24 Ala. 261. 701; State v. City of Savannah, R. 103 Nelson v. Town of Homer, 48 M. Charlt. (Ga.) 250; Smith v. Vil- La. Ann. 258. lage of Adrian, 1 Mich. 495; Lynch v. Lafland, 44 Tenn. (4 Cold.) 96. 30 CREATION AND DISSOLUTION. 53 tutional provision however cannot be arbitrarily deprived of their charters, but in the absence of such the above rule is gen- eral. A repeal of the charter or particular provisions may be effected through the passage of legislation operating in express terms, 106 or again, as in the case of an amendment to the charter of a public corporation, the repeal may be effected through the application of the doctrine of implication. 107 The courts, how- ever, do not favor the repeal of existing laws and charters by ice people v. Bagley, 85 Gal. 343. Through the incorporation of a mu- nicipality under the Statutes of Cal- ifornia of 1883, p. 93, the old char- ter is superseded or repealed. Southport v. Ogden, 23 Conn. 128; Brackett v. People, 72 111. 593; Ha- gerstown v. Dechert, 32 Md. 369. Tierney v. Dodge, 9 Minn. 166 (Gil. 9). A provision in the gen- eral law is repealed through the passage of a charter for a munici- pality controlling the same subject- matter, where the intention of the legislature to that effect is clearly expressed. Harris v. City of Water Valley, 78 Miss. 659, 29 So. 401; City of St. Louis v. Life Ass'n of America, 53 Mo. 466. As contrary to the rule see State v. Branin, 23 N. J. Law (3 Zab.) 484, and State v. Clarke, 25 N. J. Law (1 Dutch.) 54. A few early New York cases hold that the passage of general statutes imposing penalties for specific acts does not necessarily operate as a repeal of a municipal ordinance. In fixing penalties for the same act un- less irreconcilably inconsistent, both may stand together. City of New York v. Hyatt, 3 E. D. Smith (N. Y.) 156; Russ v. City of New York, 12 N. Y. Leg. Obs. 38; People v. Daley, 37 Hun (N. Y.) 461. In Trustees of Erie Academy v. City of Erie, 31 Pa. 515, it is held that a change in the form of gov- ernment of a public corporation does not necessarily abrogate existing laws passed by such corporation. Tripp v. City of Yankton, 10 S. D. 516, 74 N. W. 447. A city fail- ing to organize under laws of South Dakota of 1890, c. 37, still retains its special charter theretofore grant- ed. Burk v. State, 73 Tenn. (5 Lea) 349. Where a town organizes as a corporation under the general law, and subsequently is granted a spe- cial charter, upon its repeal it is no longer an "incorporated" town. Somo Lumber Co. v. Lincoln Coun- ty, 110 Wis. 286, 85 N. W. 1023. IDT Martin v. Board of Election Com'rs of San Francisco, 126 Cal. 404; Braman v. City of New Lon- don, 74 Conn. 695, 51 Atl. 1082; Horn v. State (Ga.) 40 S. E. 297; Mattox v. State, 115 Ga. 212, 41 S. E. 709; Guild v. City of Chicago, 82 111. 472; Allen v. People, 84 111. 502; Crook v. People, 106 111. 237; Kelly v. Gahn, 112 111. 23; State v. Harris, 10 Iowa, 441. Contra, City of Coving- ton v. District of Highlands, 24 Ky. L. R. 433, 68 S. W. 669; Camp v. City of Minneapolis, 33 Minn. 461. A special act consolidating two cities held not to extend the ordi- nances of each city over the con- solidated city, but to confine their operation within their former terri- torial limits until changed by the new city council. State Board of 54 CORPORATE LIFE; EXISTENCE. 3! implication and the authorities hold without substantial dissent that unless the intention of tHe legislature to repeal a charter or one of its provisions is clearly shown by all the circumstances and conditions attendant upon the legislation, a repeal by im- plication will not be allowed. 108 In Washington an act was passed in 1893, providing for the reincorporation of all cities and towns which had maintained or- ganized governments under the void law of March 27, 1890. This law was held valid because, as was said, "it does not seek to legalize void incorporations but to legislate as to existing con- stituted bodies maintaining the character of municipal corpora- tions under claim of authority." 109 31. Effect of repeal. In Tennessee the city of Memphis and other cities were abol- ished by legislative enactment, and taxing districts, public quasi corporations, were established with most of the powers of the dissolved municipal corporations. Creditors brought suit to en- force their claims and the court held that these taxing districts were in practical effect municipal corporations and as such they had both the liabilities and the rights of the municipal corpora- tions they were organized to supersede. 110 Education v. City of Aberdeen, 56 Buford v. State, 72 Tex. 182; Har- Miss. 518. ness v. State, 76 Tex. 566. The express repeal of a charter ios Smith, Mun. Corp. 99, and does not revive an original charter many cases there cited; Cooley, but destroys the corporate existence Const. Lim. 183; People v. Clunie, of the village. State v. Village of 70 Cal. 504; McGarty v. Deming, 51 Reads, 76 Minn. 69, 78 N. W. 883. Conn. 422; City of Griffin v. Inman, In North Carolina the same doc- 57 Ga. 370; City of East St. Louis trine is held. Lilly v. Taylor, 88 N. v. Maxwell, 99 111. 439; Bond v. C. 489. Jersey City v. Jersey City Hiestand, 20 La. Ann. 139; City of & B. R. Co., 20 N. J. Eq. (5 C. E. Cumberland v. Magruder, 34 Md. Green) 360; Erie v. Bootz, 72 Pa. 381; Fish v. Branin, 23 N. J. Law 196; McFate's Appeal, 105 Pa. 323. (3 Zab.) 484. See, also, cases cited As to organization into taxing dis- in 28. tricts, under Tennessee Code, 1667, 109 Laws 1893, c. 80; Town of Med- of towns or cities whose charters ical Lake v. Smith, 7 Wash. 195; have been repealed, see Pepper v. Town of Medical Lake v. Landis, 7 Smith, 83 Tenn. (15 Lea) 551; Ruohs Wash. 615; City of Pullman v. Hun- v. Town of Athens, 91 Tenn. 20, 18 gate, 8 Wash. 519; State v. City of S. W. 400; O'Connor v. City of Mem- Centralia, 8 Wash. 659. phis, 74 Tenn. (6 Lea) 730. no uhl v. Commissioners of Tax- 31 CREATION AND DISSOLUTION. 55 In Alabama the state legislature dissolved the city of Mobile and created the corporation of the Port of Mobile. This in- cluded substantially the same area and population as the city which it superseded. The port was vested with all the property of the city and the act of incorporation followed immediately the act of dissolution. Creditors of the city brought suit against the port and in deciding that the port was liable the supreme court of the United States said: "Where the legislature of a state has given a local community, living within designated boundaries, a municipal organization, and by a subsequent act or series of acts, repeals its charter and dissolves the corpora- tion and incorporates substantially the same people as a munic- ipal body under a new name for the same general purpose, and the general mass of the taxable property of the old corporation is included within the limits of the new, and the property of the old corporation used for public purposes is transferred with- out consideration to the new corporation for the same public uses, the latter * * * is the successor of the former and liable for its debts; and if any part of the creditors of the old corporation are left without provision for the payment of their claims, they can enforce satisfaction out of the new." 111 How- ing Dist., 74 Tenn. (6 Lea) 610; the new charter and different officers Lea v. State, 78 Tenn. (10 Lea) 478; administer its affairs; and in the State v. Taxing Dist., 84 Tenn. (16 absence of express provision for Lea) 240. As emphasizing certain their payment otherwise, it will also phases of the litigation, the result be presumed in such case that the of such legislation, see Meriwether legislature intended that the liabil- v. Garrett, 102 U. S. 472. ities as well as the rights of prop- in Port of Mobile v. Watson, 116 erty of the corporation in its old U. S. 289. In Broughton v. City of form should accompany the corpora- Pensacola, 93 U. S. 266, it was said tion in its re-organization." In O'Con- by Mr. Justice Field that "When a nor v. City of Memphis, 74 Tenn. (6 new form is given to an old munici- Lea) 730, the supreme court of Ten- pal corporation, or such a corpora- nessee held that "neither the repeal tion is reorganized under a new of the charter of a municipal cor- charter, taking in Its new organiza- poration, nor a change of its name, tion the place of the old one, em- nor an increase or diminution of bracing substantially the same cor- its territory or population, nor a porators and the same territory, it change in its mode of government, will be presumed that the legislature nor all of these things combined, intended a continued existence of will destroy the identity, continuity the same corporation, although dif- or succession of the corporation if ferent powers are possessed under the people and territory reincor- 56 CORPORATE LIFE; EXISTENCE. 31 ever clearly it is established that the legislature has the right to alter, amend or repeal the charter of a public corporation or pass legislation affecting the political rights of its citizens ex- cept as limited by constitutional provisions, there is grave doubt as to its right to deprive the people residing within certain ter- ritorial limits of property or property rights which may have been acquired by them through corporate organization. 112 Like results, though in a varying degree, are affected through the amendment or repeal of the charter of a public corporation. Where such action deals with political rights or conditions, as already stated, it is within the power of the legislature or of the sovereign to deal arbitrarily and alter, amend or repeal at pleas- ure. The grant of charter rights usually, however, not only con- fers political and governmental powers, but in some degree or in some respect may operate, directly or indirectly, as the grant of a property, a vested or a contract right to third persons. In such cases the courts have held almost without dissent that where such rights are impaired or destroyed, the legislation in question is void as violating those provisions of the Federal and state constitutions protecting contract obligations and property or vested rights. As said in the Tennessee case: 113 "Neither the repeal of the charter of a municipal corporation nor a change of its name nor an increase or diminution of its territory or population nor a change in its mode of government nor all these combined will destroy the identity, continuity or succession of the corporation, if the people and territory reincorporated con- stitute an integral part of the corporation abolished." 114 porated constituted an integral part Mich. 228; City of New York v. Sec- of the corporation abolished. * * * ond Ave. R. Co., 32 N. Y. 261; Peo- The corporators and the territory pie v. O'Brien, 111 N. Y. 1; Town are the essential constituents of the of Montpelier v. Town of East Mont- corporation and rights and liabili- pelier, 29 Vt. 12; Dillon, Mun. Corp. ties naturally adhere to them." (4th Ed.) 68a. 112 Terrett v. Taylor, 9 Cranch (U. us Connor v. City of Memphis, S.) 43; Trustees of Dartmouth Col- , TT a . 74 Tenn. (6 Lea) 730. lege v. Woodward, 4 Wheat. (U. S.) 618, 694; Smith v. Morse, 2 Cal. "* Girard v. City of Philadelphia, 524; Grogan v. City of San Fran- 74 U. S. (7 Wall.) 1; Morgan v. City Cisco, 18 Cal. 590; Richland County & Town of Beloit, 74 U. S. (7 Wall.) v. Lawrence County, 12 111. 1; Peo- 613; Butz v. City of Muscatine, 75 pie v. Hurlbut, 24 Mich. 44; People U. S. (8 Wall.) 575; Curran v. Ar- v. Common Council of Detroit, 28 kansas, 15 How. (U. S.) 312; Lara- 31 CREATION AND DISSOLUTION. 57 The power of taxation existing when bonds are issued by a municipal corporation as duly authorized, and which is the only resource for their payment, is considered such a contract obliga- tion, and any law which withdraws or limits this taxing power and leaves no adequate means for payment is null and void as violating the principle stated above. 115 The repeal of a charter mie County Com'rs v. Albany Coun- ty Com'rs, 92 U. S. 307; Broughton v. City of Pensacola, 93 U. S. 266; Town of Mt. Pleasant v. Beckwith, 100 U. S. 514. Port of Mobile v. Watson, 116 U. S. 289. "The laws which establish local municipal corporations cannot be altered or repealed so as to in- vade the constitutional rights of creditors. So far as such corpora- tions are invested with subordinate legislative powers for local purposes, they are the mere instrumentalities of the states for the convenient ad- ministration of their affairs and are subject to legislative control. But when empowered to take stock in or otherwise aid a railroad company and they issue their bonds in pay- ment of the stock taken or to carry out any other authorized contract in aid of the railroad company, they are to that extent to be deemed private corporations and their obli- gations are secured by all the guar- antees which protect the engage- ments of private individuals. There- fore, the remedies for the enforce- ment of such obligations assumed by a municipal corporation which ex- isted when the contract was made must be left unimpaired by the leg- islature or if they are changed a substantial equivalent must be pro- vided." U. S. v. Port of Mobile, 12 Fed. 768; Amy v. City of Selma, 77 Ala. 103; New Orleans, M. & C. R. Co. v. City of New Orleans, 26 La. Ann. 478; Coulter v. Robertson, 24 Miss. 278; Blake v. Portsmouth & C. R. Co., 39 N. H. 435; Broadfoot v. City of Fayetteville, 124 N. C. 478; Peo- ple v. Morris, 13 Wend. (N. Y.) 325. See, also, note in 2 Mun. Corp. Cas. 540. us Von Hoffman v. City of Quincy, 71 U. S. (4' Wall.) 535; City of Ga- lena v. Amy, 72 U. S. (5 Wall.) 705; Board of Liquidation v. McComb, 92 U. S. 531; Edwards v. Kearzey, 96 U. S. 595. Louisiana v. City of New Orleans, 102 U. S. 203. "The obligation of a contract in the constitutional sense is the means provided by law by which it can be enforced; by which the parties can be obliged to perform it. Whatever legislation lessens the efficacy of these means, impairs the obligation. If it tends to postpone or retard the enforce- ment of the contract, the obligation of the latter is to that extent weak- ened; The Latin proverb Qui cito dat bis dat He who gives quickly gives twice has its counterpart in a maxim equally sound, Qui serius solvit, minus solvit, He who pays too late pays less. Any authorization of the postponement of payment or of means by which such postpone- ment may be effected is in conflict with the constitutional inhibition." Louisiana v. Pilsbury, 105 U. S. 278; Rails County Court T. U. S., 105 U. S. 733; Louisiana v. City of New Orleans, 109 U. S. 285; Louisiana v. Police Jury of St. Martin's Parish, 58 CORPORATE LIFE; EXISTENCE. 32 and reincorporation, either under general laws or a new charter, does not destroy the rights of the corporation to collect taxes or debts due it arising under the provisions of the old organiza- tion, 116 and, as has been seen, it does not cancel old obligations. 32. Corporate existence, and the doctrine of collateral attack. A public corporation is created by direct act of the sovereign or indirectly through a delegated body, by the granting of a charter, which is its written authority to act as a governmental agent, and exercise and perform the appurtenant powers and duties. The corporation may be organized under laws subse- quently declared unconstitutional or void, or the formal steps in the organization may be imperfectly or irregularly taken, the condition in either case raising a doubt as to the legal existence of the corporation, this doubt with an adverse decision upon the question being resolved into a certainty. The corporation mean- while has performed its duties and exercised its powers, it has levied and collected taxes, constructed public improvements, in- curred debts and liabilities, and entered into contract relations with third parties who have acted in good faith and upon the assumption that the corporation possessed the necessary powers. The legality of the existence of the corporation or its right to perform these duties and exercise these powers is called in ques- tion. What is the effect upon past acts and the relations which exist as their result? And, again, the proposition may present itself, in what manner, by whom, and at what time can the question of legal right be raised? The rule of law invariably is that the state alone can question the right of the public corpora- tion to exist and perform its duties and exercise its rights, and 111 U. S. 716; Seibert v. Lewis, 122 v. City of Fayetteville, 124 N. C. U. S. 284; Martin v. Somerville 478; Basset v. City of El Paso Water-Power Co., 3 Wall. Jr. 206, (Tex.) 30 S. W. 893; State v. Corn- Fed. Gas. No. 9,165; Fazende v. City mon Council of Madison, 15 WIs. of Houston, 34 Fed. 95; Edwards v. 33; Terry v. Wisconsin M. & F. Ins. Williamson, 70 Ala. 145; Amy v. Co. Bank, 18 Wis. 87; Smith v. City City of Selma, 77 Ala. 103; State v. of Appleton, 19 Wis. 468. City of New Orleans, 37 La. Ann. us Milster v. City of Spartanburg 13. The principle also applies to (S. C.) 46 S. E. 539; Bennison v. the amendment of a state constitu- City of Galveston (Tex. Civ. App.) tion. Munday v. Assessors of Rah- 78 S. W. 1089. way, 43 N. J. Law, 338; Broadfoot 32 CREATION AND DISSOLUTION. 59 then in a proceeding brought for that purpose. And also that the question of legal corporate existence cannot be raised in a case or proceeding as collateral to the main issue or through col- lateral attack. 117 This doctrine is adopted to protect the rights of innocent parties 118 and to enable the corporation, however "T Rails County v. Douglass, 105 U. S. 728; Shapleigh v. San Angelo, 167 U. S. 646; Austrian v. Guy, 21 Fed. 500; National L. Ins. Co. of Montpelier v. City of Huron, 62 Fed. 778; Harris v. Nesbit, 24 Ala. 398; Ex parte Moore, 62 Ala. 471; Town of Searcy v. Yarnell, 47 Ark. 269; State v. North, 42 Conn. 79; In re Allison, 13 Colo. 525; State v. Town of Winter Park, 25 Fla. 371; Ket- tering v. Jacksonville, 50 111. 39; Cleveland, C., C. & St. L. R. Co. v. Dunn, 61 111. App. '227; Town of Geneva v. Cole, 61 111. 397; Alder- man v. School Directors, 91 111. 179; People v. Nelson, 133 111. 565, 27 N. E. 217; School Directors of Union School Dist. v. School Directors of New Union School Dist., 135 111. 464, 28 N. E. 49; Cicero v. Williamson, 91 Ind. 541; Huff v. City of Lafey- ette, 108 Ind. 14. Contra, Forsythe v. City of Hammond, 142 Ind. 505; State v. Independent School Dist., 44 Iowa, 227; State v. Pawnee Coun- ty Com'rs, 12 Kan. 426; People v. Maynard, 15 Mich. 463; Kayser v. Bremen, 16 Mo. 88; City of Tren- ton v. Devorss, 70 Mo. App. 8; St. Paul Gas Light Co. v. Village of Sandstone, 73 Minn. 225; Coler v. Dwight School Tp., 3 N. D. 249, with many authorities cited and collated; State v. Brown, 31 N. J. Law, 355; Borough of Glen Ridge v. Stout, 58 N. J. Law, 598, 33 Atl. 858; State v. Whitney, 41 Neb. 613; Coast Co. v. Borough of Spring Lake, 56 N. J. Eq. 615, 36 Atl. 21; State v. Central Pac. R., 21 Nev. 75, 25 Pac. 296; City of El Paso v. Ruckman, 92 Tex. 86, 46 S. W. 25; Foster v. Hare, 26 Tex. Civ. App. 177, 62 S. W. 541; Angel v. Town of Spring City (Tenn. Ch. App.) 53 S. W. 191, holds follow- ing the Tennessee cases contrary to the general doctrine: Pratt v. Lin- coln County, 61 Wis. 62; .Town of Spooner v. Town of Minong, 104 Wis. 425. See, also, Stuart v. School Dist. of Kalamazoo, 30 Mich. 69, where the court says: "If every municipality must be subject to be called into court at any time to de- fend its original organization and its franchises at the will of any dis- satisfied citizen who may feel dis- posed to question them, and subject to dissolution, perhaps, or to be crippled in authority and powers if defects appear, however complete and formal may have been the recog- nition of its rights and privileges, on the part alike of the state and its citizens, it may very justly be said that few of our municipalities can be entirely certain of the ground they stand upon, and that any single person, however honastly inclined, if disposed to be litigious, or over- technical and precise, may have it in his power in many cases to cause infinite trouble, embarrassment, and mischief." See, also, many cases cited in McQuillin, Mun. Ord. p. 546, note 86. us Ashley v. Presque Isle County Sup'rs, 60 Fed. 55. Speer v. Kearney County Com'rs, 88 Fed. 749. In this case the Court said: "Moreover we are unable to 60 CORPORATE LIFE; EXISTENCE. 32 irregularly formed, to compel obedience and enforce its rights. 119 A public corporation exercises affirmatively certain functions, or it may enter into contract or other obligations. It is with yield our assent to the broad prop- osition that there can be no de facto corporation under an unconstitu- tional law. Such a law passes the scrutiny and receives the approval of the attorney general of the law- yers who compose the judiciary com- mittees of the state legislative bod- ies, of the legislature, and of the governor before it reaches the stat- ute book. When it is spread upon that book it comes to the people of a state with the presumption of val- idity. Courts declare its invalidity with hesitation and after long de- liberation and much consideration even when its violation of the or- ganic law is clear and never when it is doubtful. Until the judiciary has declared it void, men act and contract, and they ought to act and contract, on the presumption that it is valid; and where, before such a declaration is made, their acts and contracts have affected public inter- ests or private rights they must be treated as valid and lawful. The acts of a de facto corporation or officer under an unconstitutional law before its invalidity is challenged * * * cannot be avoided, as against the interests of the public or of third parties who have acted or in- vested in good faith in reliance upon their validity, by any ex post facto declaration or decision that the law under which they acted was void." State v. City of Des Moines, 96 Iowa, 521, 65 N. W. 818; People v. Maynard, 15 Mich. 463; State v. Rich, 20 Mo. 393; Town of Winneconne v. Village of Winneconne, 11 Wis. 10. As to rights of bondholders see Ashley v. Presque Isle County Supr's, 60 Fed. 55; Coler v. Dwight School Tp., 3 N. D. 249, 55 N. W. 587; Brown v. Bon Homme, 1 S. D. 216. See Ruohs v. Athens, 91 Tenn. 20, to the contrary, but in accord with Tennessee cases on the doc- trine of collateral attack. n City of Carlisle v. Blamire, 8 East, 487. In the levy of taxes. Presque Isle County Sup'rs v. Thompson, 61 Fed. 914; Dean v. Davis, 51 Gal. 406; Trumbo v. People, 75 111. 561; People v. Newberry's Trustees, 87 111. 41; School Dist. No. 49 of Paw- nee County v. School Dist. No. 21, 32 Kan. 123; Kansas Town & Land Co. v. City of Kensington, 6 Kan. App. 247; Chicago, St. L. & N. O. R. Co. v. Town of Kent wood, 49 'La. Ann. 931; Mills v. Tp. of Richland, 72 Mich. 100, 40 N. W. 183; Kewee- naw Ass'n v. School Dist. of Han- cock Tp., 98 Mich. 437; State v. Mineral Land Co., 84 Mo. App. 32; State v. Central Pac. R. Co., 9 Nev. 79; Riverton & P. Water Company v. Haig, 58 N. J. Law, 295; Rellstab v. Borough of Belmar, 58 N. J. Law, 489; Gardner v. Christian, 70 Hun, 547, 24 N. Y. Supp. 339; Troutman v. McClesky, 7 Tex. Civ. App. 561; McCrary v. City of Comanche (Tex. Civ. App.) 34 S. W. 679; Eustis v. City of Henrietta (Tex. Civ. App.) 37 S. W. 632; McMickle v. Hardin, 25 Tex. Civ. App. 222, 61 S. W. 322; Kuhn v. City of Port Townsend, 12 Wash. 605; Frace v. City of Ta- coma, 16 Wash. 69; Hornbrook v. Town of Elm Grove, 40 W. Va. 543. 32 CREATION AND. DISSOLUTION. 61 regret the statement is made that too often public corporations endeavor to avoid or defeat an honest debt or a legal obligation by the claim of no authority or power. In such cases the Fed- eral courts have maintained vigorously the doctrine of col- lateral attack and have repeatedly held, that where there is a doubt as to the legality of the creation of the corporation which can only be raised by the state, if the state fails to act until after debts are created and liabilities incurred, those obligations are not impaired or destroyed by a subsequent dissolution of the corporation, 120 or the declaration by a judicial tribunal in a proceeding brought for that purpose that the corporation was originally without legal authority. This doctrine of collateral attacks applies also to official acts of officers of public corpora- tions, and it is the rule that in disputes between private parties the validity of a public corporation acting under forms of law cannot be called in question where its corporate existence is un- challenged by the state. 121 The collection of fines. Hamil- ton v. President & Trustees of Carthage, 24 111. 22; Atchison, T. & S. F. R. Co. v. Wilson, 33 Kan. 223; Baker County v. Benson, 40 Or. 207, 66 Pac. 815. The prosecution of criminals. In re Short, 47 Kan. 250; followed in In re Rabbitt, 47 Kan. 382; In re Williams, 47 Kan. 303; People v. Smith, 131 Mich. 70, 90 N. W. 666; Inhabitarts of Fredericktown v. Fox, 84 Mo. 59; State v. Fuller, 96 Mo. 165, 9 S. W. 583; City of Bill- ings v. Dunnaway, 54 Mo. App. 1; City of Clarence v. Patrick, 54 Mo. App. 462; Town of Henderson v. Da- vis, 106 N. C. 88. The construction of public im- provements. Powell v. City of Greensburg, 150 Ind. 148. Or, the enforcement of ordinances and the administration of public affairs. Graham v. City of Greenville, 67 Tex. 62. 120 Shapleigh v. City of San An- gelo, 167 U. S. 646. "The state be- ing the creator of municipal corpo- rations is the proper party to im- peach the validity of their creation. If the state acquiesces in the valid- ity of a municipal corporation its corporate existence cannot be col- laterally attacked." Graham v. City of Greenville, 67 Tex. 62. 121 Union Nat. Bank v. Matthews, 98 U. S. 621; Miller v. Perris Irr. Dist., 85 Fed. 693; Mullikin v. City of Bloomington, 72 Ind. 161; State v. Council, 106 Iowa, 731, 77 N. W. 474; Cleveland, C., C. & St. L. R. Co. v. Dunn, 63 111. App. 531; Menden- hall v. Burton, 42 Kan. 570, 22 Pac. 558; Kirkpatrick v. State, 5 Kan. 673; Village of Arapahoe v. Albee, 24 Neb. 242; Campbell v. Wainright, 50 N. J. Law, 555; State v. Fuller, 96 Mo. 165; Stuart v. School Dist. of Kalamazoo, 30 Mich. 69; Jaquith v. Hale, 31 Mich. 430; State v. Whit- ney, 41 Neb. 613, 59 N. W. 884; State v. Henderson, 145 Mo. 329, 46 S. W. 1076. 62 CORPORATE LIFE; EXISTENCE. 33 33. The dissolution of the corporation and its effects. Public corporations may be dissolved through an act of the legislature; 122 they may voluntarily, under general laws, sur- render their charters; 123 again, under general laws, they may change their grade or class, effecting in this manner a dissolution of the old corporation ; 124 or the corporation may be dissolved as the result of a judgment of ouster in proceedings brought to determine its rights to- corporate existence. 125 The courts have held as negative propositions that a corporation will not be dissolved by its failure to elect officers, 126 for the misuser or non- user of its charter rights, 127 or the misconduct of its officers. The debts and legal obligations of a public corporation can- 122 Town of Cicero v. City of Chi- cago, 182 111. 301r State v. Hamil- ton, 40 Kan. 323, 19 Pac. 723; Kan- sas Town & Land Co. v. City of Smith Center, 6 Kan. App. 252; Woods v. Henry, 55 Mo. 560; State v. Honerud, 66 Minn. 32; State v. Crow Wing County Ccm'rs, 66 Minn. 519; Town of Watervliet v. Town of Colonie, 27 App. Div. 394, 50 N. Y. Supp. 487; James County v. Hamil- ton County, 89 Tenn. 237, 14 S. W. 601. 123 state v. Husband, 26 Ind. 308; Fowler v. Vandal, 84 Minn. 392; Blauvelt v. Village of Nyack, 9 Hun (N. Y.) 153; Com. v. Judges of Quarter Sessions, 8 Pa. 391. 12* In re Extension of Boundaries of Denver, 18 Colo. 288, 32 Pac. 615; Wiedwald v. Dodson, 95 Cal. 450; Mintzer v. Schilling, 117 Cal. 361, 49 Pac. 209; Com. v. Rose, 20 Ky. L. R. 1220, 49 S. W. 29. 125 Dodge v. People, 113 111. 491. In this case the court says: "It is proper to inquire what effect the judgment (of ouster) had upon the village itself. There is no room for doubt on this point. The authori- ties are clear that its immediate ef- fect was to dissolve the corporation, whether it existed de jure or de facto, or in other words its effect was to completely ' extinguish and annihilate the artificial municipal body which had theretofore existed by the name of the village of Fideli- ty, together with its rights, liberties and franchises. Or differently stat- ed, its effect was the immediate death of the artificial being followed by all the consequences which the law annexes to such a death. As in the case of a natural person its death operated as an absolute revo- cation of all power and authority on the part of others to act in its name or on its behalf." 126 Welch v. City of Ste. Gene- vieve, 1 Dill. 130, Fed. Cas. No. 17,- 372; State v. Dunson, 71 Tex. 65, 9 S. W. 103; Buford v. State, 72 Tex. 182; State v. Hoff (Tex. Civ. App.) 29 S. W. 672. 127 Welch v. City of Ste. Gene- vieve, 1 Dill. 130, Fed. Cas. No. 17,- 372; Butler v. Walker, 98 Ala. 358, 13 So. 261; Swamp Land Dist. No. 150 v. Silver, 98 Cal. 51, 32 Pac. 866; People v. Bancroft, 2 Idaho, 1077, 29 Pac. 112; Cain v. Brown, 111 Mich. 657, 70 N. W. 337; Largen v. State. 76 Tex. 323. 34 CREATION AND DISSOLUTION. 63 not be impaired or destroyed by a change in the grade or class of a municipal organization, or through its dissolution. 128 The duty of their payment or performance devolves upon the terri- tory succeeding to the old corporation. Property belonging to the corporation dissolved usually passes to and under the con- trol of the new organization embracing the identical territory. In Nevada it is held that where legislation looking to the dis- incorporation of a town provides for the filing of claims within a certain time, its constitutionality cannot be raised by one not having a claim. 120 34. Forfeiture of charter. The charter of a private corporation in the proper action may be forfeited by judicial decree for the commission of acts by the corporation contrary to the provisions of general statutes or express provisions of its charter. The act of forfeiture is equivalent to the taking of corporate life, as without it, it can- not legally exist. Courts are slow to inflict a penalty which represents the extreme rigor of the law. As said in a New York case: 130 "Its infliction must rest upon grave cause and be war- ranted by material misconduct. * * * The state as prose- cutor must show on the part of the corporation accused some sin against the law of its being which has produced or tends to produce injury to the public. The transgression must not be merely formal or incidental, but material and serious and such 128 Shapleigh v. City of San An- will not consider an objection made gelo, l')7 U. S. 646; City of Uvalde to the constitutionality of an act of v. Spier, 91 Fed. 594; Amy v. City the legislature by a party whose of Selma, 77 Ala. 103; Vandriss v. rights it does not affect and who has, Hill, 58 Kan. 611; Overseers of the therefore, no interest in defeating Poor v. Sears, 39 Mass. (22 Pick.) it. It is only when some person at- 122; Ross v. Wimberly, 60 Miss, tempts to resist its operation, and 345; Clarke v. Reeves County, 25 calls in the aid of the judicial pow- Tex. Civ. App. 463, 61 S. W. 98^ er to pronounce it void as to him, Little v. Union Tp. Committee, 40 his property or his rights, that the N. J. Law, 397; Shankland v. Phil- objection to the unconstitutionality lips, 3 Tenn. Ch. 556. See, also, of a legislative act can be presented cases cited in notes to 45, 46 and and sustained (Cooley, Const. Lim. 96. 196, 197)." 129 in re Sticknoth's Estate, 7 130 People v. North River Sugar Nev. 223. Refining Co., 121 N. Y. 582. State v. Beck, 25 Nev. 68. "Courts 64 CORPORATE LIFE; EXISTENCE. 35 as to harm or menace the public welfare, for the state does not concern itself with the quarrels of private litigants; it furnishes for them sufficient courts and remedies, but intervenes as a party only where some public interest requires its action. Corpora- tions may and often do exceed their authority where only pri- vate rights are affected. When these are adjusted all mischief ends and all harm is averted. But where the transgression has a wider scope and threatens the welfare of the people, they may summon the offender to answer for the abuse of its franchise or the violation of its corporate duty." A public corporation, it will be remembered, is a governmental institution or agency and created for the sole purpose of carrying out some aim of gov- ernment resulting in the advantage and benefit of society. Be- cause of the material and the essential difference between a public and a private corporation, the courts generally hold in this country, at least, that the charter of a public corporation cannot be forfeited. The government of a particular agency of the sovereign may change its form, but under existing condi- tions and political theories, it is legally impossible that a par- ticular district, however sparse or dense its population, can ex- ist without some form of government. 131 In England the earlier cases held that the charter of a public corporation, like that of a private, could be forfeited by the sovereign in the proper pro- ceedings. 132 The universal rule obtains that an incorporated town or city retains corporate capacity until its charter has been de- clared forfeited in a direct judicial proceeding looking to that end. The forfeiture of a charter cannot be declared in a col- lateral proceeding. 138 II. TERRITORIAL CHANGES AND THEIE EFFECT. 35. Boundaries; their enlargement. A public corporation is the organization of a certain geograph- ical district under authority of law for the purpose, if a public isi Port of Mobile v. U. S., 116 U. Smith's Case, 4 Mod. 55; Rex v. S. 289; Harris v. Nesbit, 24 Ala. 398; Saunders, 3 East, 119; Rex v. In- State v. Stevens, 21 Kan. 210; At- habitants of Kent, 13 East, 220; torney General v. City of Salem, Lyme Regis v. Henley, 2 Clark & F. 103 Mass. 138; Attorney General v. 331; Attorney General v. Shrews- City of Boston, 123 Mass. 460; Dil- bury Corp., 6 Beav. 220. Ion, Mun. Corp. (4th Ed.) 168. iss Harris v. Nesbit, 24 Ala. 398; 132 Rex v. Grosvenor, 7 Mod. 198; Whalin v. City of Macomb, 76 111. 35 TERRITORIAL CHANGES. 65 or quasi public corporation, of acting as a governmental agent, carrying out exclusively some one or more of the functions of government; or, if a municipal corporation, of combining with the above additional powers or privileges and of legislating up- on matters more particularly affecting the conditions and convenience of those residing within its limits. The corpora- tion in both instances includes, within its jurisdiction and con- trol, a certain geographical area. The fact that at the time of its organization it includes or is included within certain limits does not prevent the passage of future legislation enlarging boundaries or dividing territory, or preclude annexation or division under existing laws. To state the principle more con- cisely, a public corporation, of whatever class, may have its territorial limits under authority of law, arbitrarily or otherwise enlarged or reduced. The paramount question, if action is taken of this character, is that of legislative authority, 134 and the extent and manner of 49; Hornbrook v. Town of Elm Grove, 40 W. Va. 543. See, also, cases cited 32, note 46. is* U. S. v. City of Memphis, 97 U. S. 284; Paxson v. Holt, 40 Cal. 466; People v. City of Oakland, 92 Cal. .611; People v. City of Oakland, 123 Cal. 598; People v. Fleming, 10 Colo. 553, 16 Pac. 298; City of Jack- sonville v. L'Engle, 20 Fla. 344; Saunders v. Provisional Municipali- ty of Pensacola, 24 Fla. 226, 4 So. 801. City of Brunswick v. Finney, 54 Ga. 317. The authority for annexa- tion may be made subject to the con- dition that the people affected give their consent. City of Burlington v. Leebrick, 43 Iowa, 252. The constitutional ob- jection held not good that legislative powers are conferred upon the cir- cuit court through Iowa Code, 431, providing that cities may institute proceedings in the circuit court for the annexation of contiguous terri- tory under certain conditions. And the same is held in Kansas. Eskridge v. City of Emporia, 63 Kan. 368, 65 Pac. 694. Defects in annexation proceed- ings held cured by subsequent legis- lation. Edmunds v. Gookins, 24 Ind. 169; Taylor v. City of Ft. Wayne, 47 Ind. 274. The territory annexed should be platted. Paul v. Town of Walker- ton, 120 Ind. 565, 50 N. E. 725; Pres- cott v. City of Chicago, 60 111. 121. Village of Hyde Park v. City of Chicago, 124 111. 156, 16 N. E. 222. Where an act giving the power to extend the limits of an incorporated city so as to include an adjoining incorporated town is held unconsti- tutional, an election held pursuant to such act will not operate as a consolidation of the two towns. Town of Cicero v. City of Chicago, 182 111. 301; People v. Binns, 192 111. 68; Pence v. City of Frankfort, 101 Ky. 534, 41 S. W. 1011; Lewis v. Town of Brandenburg, 20 Ky. L. R. 1011, 47 S. W. 862, 48 S. W. 978; Abb. Corp. 5. 56 CORPORATE LIFE; EXISTENCE. 35 such annexation is a question solely within the discretion of the legislature except as restrained by constitutional provisions 1 " with which the courts cannot interfere. 138 Other necessary acts and proceedings. We have for secondary considerations, provided authority exists, those which go to a determination of the questions what territory can be annexed; the formal proceedings as provided by law or custom, namely, the preparation and filing of a petition signed by qualified voters or by property owners residing within the limits of the proposed Walters v. Richardson, 93 Ky. 374; act to define the city limits," the Shawnee County Com'rs v. Carter, word "define" not being confined in 2 Kan. 115; Atchison N. R. Co. v. meaning to making clear and cer- Maquilkin, 12 Kan. 301. tain what was ambiguous before. Where such authority applies to Norris v. Town of Smithville, 31 but three cities in state, held uncon- Tenn. (1 Swan) 164; People v. Ma- stitutional as special legislation, bie, 73 Hun, 495, 26 N. Y. Supp. 450; City of Topeka v. Gillett, 32 Kan. People v. Town of Hempstead, 21 4?X; In re Hall, 38 Kan. 670, 17 Pac. App. Diy. 156, 47 N. Y. Supp. 409; 6 Pe P le v ' ChIca S See sec 46 & A. R. Co., 172 111. 71, and Fender 232 Gregg v. French, 67 Minn. 402, v - Neosho Falls T P- 22 Kan - 305 69 N. W. 1102. 52 NAME AND BOUNDARIES. 93 divided territory in proportion to the valuation of the property therein. 235 Officers of the new organization, whose legal duty it is to collect taxes, have no power to collect those previously levied by the old corporation. 238 III. CORPORATE NAME AND BOUNDARIES. 52. Existence of a public corporation. The precise time when the steps necessary to the legal existence of a public corporation have been completed may be important in determining rights of third parties against the territory included within its limits or its own rights and powers. The necessity for a valid organization also exists that a corporation may legally perform its governmental duties and exercise its powers. 287 A futile attempt to organize a corporation of a lower, it has been held, does not prevent the organization of one of a higher, grade. 238 The rule also seems to be that a town incorporated under an act held unconstitutional, thereafter has no legal existence, and a judgment against it is a mere nullity, 239 though it will be con- sidered a de facto town from the time of its attempted organiza- tion until the law is declared unconstitutional, and the acts of its officers, the acts of de facto officers, binding between third par- ties dealing with them as public officials, 240 and also for the pur- pose of enforcing liabilities against the corporation contracted during its existence as a de facto organization. 241 If the authority for the organization of a public corporation provides for the election or appointment of certain officials before it can legally exist, the requirements of the law in this respect must be fol- lowed, 242 though some cases hold a failure in this respect will not 235 Auditor General v. Menomlnee 13 So. 261; State v. Tucker, 48 Mo. County Sup'rs, 89 Mich. 552. App. 531; Watson v. Corey, 6 Utah, 236 state v. Clevenger, 27 Neb. 150. 422, 43 N. W. 243. 239 Colton v. Rossi, 9 Cal. 595. 237 people v. Morrow, 181 111. 315; 240 Riley v. Garfield Tp., 58 Kan. State v. Arnold, 38 Ind. 41; City of 299, 49 Pac. 85; Town of Winne- Guthrie v. Wylie, 6 Okl. 61; City of conne v. Village of Winneconne, 111 Guthrie v. Ter., 1 Okl. 188, 31 Pac. Wis. 13, 86 N. W. 590. 190; Gilkey v. Town of How, 105 241 white v. City of Quanah (Tex. Wis. 41. Civ. App.) 27 S. W. 839. zss Butler v. Walker, 98 Ala. 358, 242 Keating v. Marble, 39 Kan. 94 CORPORATE LIFE; EXISTENCE. 53 invalidate the organization. 248 The words "be, and the same hereby is incorporated," do not alone indicate an intention on the part of the legislature that the corporation should take imme- diate effect as against a general law that public acts shall not take effect until thirty days after the session of the legislature, unless otherwise provided. 244 Corporate existence will not be presumed from the registration of a municipal charter, when, under the code, it is necessary that the charter shall be certified before it is registered. 245 53. Name of the corporation. The existence of a public corporation presupposes a legal name, acquired in the proceedings incorporating it or by custom, 246 under which it exercises its powers, performs its duties, and which it uses in assuming liabilities and contracting obligations. The rule as to the use of the name by the corporation is sub- stantially that relating to private individuals. A mere misnomer mil not invalidate proceedings nor defeat rights. The essential fhing is identity, 247 and if the name used in either a contract or a devise or grant to the corporation sufficiently describes and identifies it, it will be sufficient, although it may not be the pre- cise and technical name. 248 The use of the correct legal name in 370, 18 Pac. 189; Behr v. Willard, Town of Rye, 7 Taunt. 546; Clement XI Neb. 601; Campbell v. Wainright, v. City of Lathrop, 18 Fed. 885; ) N. J. Law, 555, 14 Atl. 603; Gil- People v. Potter, 35 Gal. 110; People key v. Town of How, 105 Wis. 41. v. Pike, 197 111. 449; State v. Wood- 2*3Rousey v. Wood, 63 Mo. App. bury, 76 Me. 457; People v. Runkle, *60. 9 Johns. (N. Y.) 147; State v. Hol- 2" Inhabitants of Gorham v. In- lis, 59 N. H. 390; Berks & D. Turn- babitants of Springfield, 21 Me. 58; pike Road v. Myers, 6 Serg. & R. Cooper v. Curtis, 30 Me. 488. (Pa.) 12; 2 Kent, Comm. 292; Dil- 2*B State v. Frost, 103 Tenn. 685. Ion, Mun. Corp. (4th Ed.) 180. **6 See Knight v. Mayor, etc., of But see Sweetwater County Com'rs Wells, 1 Ld. Raym. 80; City of v. Young, 3 Wyo. 684, 29 Pac. 1002, Gainesville v. Caldwell, 81 Ga. 76; and Boon v. Town of Jackson, 98 Johnson v. Common Council of In- Ga. 490. dianapolis, 16 Ind. 227; Neely v. 243 Case of Mayor, etc., of Lynne Yorkville, 10 S. C. (10 Rich.) 141; Regis, 10 Coke, 120; Dr. Ayray's Richards v. Town of Clarksburg, 30 Case, 11 Coke, 18b; Rex v. Inhab- W. Va. 491. itants of Haughley, 4 Barn. & Adol. 247 University of Oxford's Case, 10 650; Croydon Hospital v. Farley, 6 Coke, 53b, 57b; Foster v. Walter, 1 Taunt. 467; University of Oxford's Cro. Eliz. 106; Attorney General v. Case, 10 Coke, 53b, 57b; Inhabitants 54 NAME AND BOUNDARIES. 95 actions is more strictly insisted upon. 249 The legislature may, at its pleasure, subject to statutory or constitutional restrictions, change the name of a public corporation, but its identity for the purpose of enforcing obligations will not, by such action, be destroyed. 250 The change of name may be effected by an alter- ation in the grade of organization or by special act. In Kansas it is held that such change carries with it a change of the legal title from "the inhabitants, etc.," to "the city, etc." 251 The new name sought must not be misleading. 54. The seal and its use. The law regarding the use of a seal by a corporation, either public or private, has changed materially in recent years, the rea- sons evidently being the same leading to a change in the law as to the use of a seal by natural persons. Formerly the corporation "spoke" through its seal. A contract or other instrument to be valid must have had the corporate seal affixed and have been attested by the proper officer. The rule now is that the use of the seal is not necessary to bind a corporation except in those cases where this is directed in express terms by the statutes. 252 The rule, however, that an instrument under seal embodies a of First Parish in Button v. Cole, 251 West r. City of Columbus, 20 20 Mass. (3 Pick.) 232; New York Kan. 633. Inst. for Blind v. How's Ex'rs, 10 N. 252 Bernardin v. North Dufferin Y. (6 Seld.) 84; Chapin v. School Municipality, 19 Can. Sup. Ct. 581; Dist. x No. 2 in Winchester, 35 N. H. Smeltzer v. White, 92 U. S. 390; 445. X Gordon v. City of San Diego (Cal.) 2*9 City of Ft. Wayne v. Jackson, 32 Pac. 885; Ring v. Johnson Coun- 7 Blackf. (Ind.) 36; Village of Ro- ty, 6 Iowa, 265; Prescott v. Gonser, meo v. Chapman, 2 Mich. 179; St. 34 Iowa, 178; Springer v. Clay Coun- Louis County Court v. Griswold, 58 ty, 35 Iowa, 243; Kinzie v. Chicago, Mo. 175; Carder v. Fayette County 3 111. (2 Scam.) 188; Bestor v. Pow- Com'rs, 16 Ohio St. 353; Clarke v. ell, 7 111. (2 Gilm.) 126; Guffield v. Potter County, 1 Pa. 163; Berks & Bowling Green, 45 Ky. (6 B. Mon.) D. Turnpike Road v. Myers, 6 Serg. 224; Geary v. City of Kansas, 61 & R. (Pa.) 12. Mo. 378; Colman v. Anderson, 10 250 Girard v. City of Philadelphia, Mass. 105; Inhabitants of Fourth 74 U. S. (7 Wall.) 1; Town of Mt. School Dist. in Rumford v. Wood, Pleasant v. Beckwith, 100 U. S. 524. 13 Mass. 193; Attorney General T. See, also, authorities cited under Jochim, 99 Mich. 358, 58 N. W. 611; 45 and 46. City Council of Charleston v. Moor- head, 12 Rich. Law (S. C.) 430. 96 CORPORATE LIFE; EXISTENCE. 55 consideration is applied to a contract executed by a corporation the same as to an individual. 253 55. Corporate boundaries. From the discussion of the subject thus far, it is apparent that the creation or organization of a public corporation consists in the setting apart of a certain geographical area and investing the people residing within the limits of this district with a greater or less degree of control over their local, political, governmental and economic conditions. These agencies of the state exercise certain functions, perform certain duties, and contract certain liabilities. The existence and performance of any or all of these rights and powers affect not only the property but the persons of those coming within their jurisdiction. It will be seen there- fore that there exists the most urgent necessity for an accurate and definite establishment 254 of the boundaries in the first in- stance, under due authority of law, by the proper tribunal, and that if a subsequent change is made in these boundaries the change be also definite and certain, under authority of law, and by the proper tribunal. In order that a public corporation can properly perform its duties and exercise its powers, it must be in a position to compel obedience to its lawful demands, for, if any uncertainty exists as to the jurisdiction of a public corporation in regard to a particu- lar question, affecting either persons or property, it is clear that it cannot compel that submission which good government requires. 56. Definition of corporate boundaries. The first essential to the existence of a boundary which shall legally limit and govern the exercise of jurisdiction by a public corporation over persons and property is its accurate and definite establishment and description, 255 either according to natural 253 sturtevants v. City of Alton, 3 Adams, 56 Tenn. (9 Heisk.) 518; McLean, 393, Fed. Cas. No. 13,580. Brennan v. City of Weatherford, 53 254 Town of Enterprise v. State, Tex. 330; Fidelity Ins. Co. v. Shen- 29 Fla. 128, 10 So. 740; People v. andoah Val. R. Co., 32 W. Va. 244; Bennett, 29 Mich. 451; Musser y. Cutting v. Stone, 7 Vt. 471; Pierce Johnson, 42 Mo. 74; Levering v. r. Carpenter, 10 Vt. 480. Town of Memphis, 26 Tenn. (7 255 state of Rhode Island v. State Humph.) 553; City of Memphis v. of Massachusetts, 4 How. (U. S.) 56 NAME AND BOUNDARIES. 97 boundaries, which are in themselves definite and certain, or line* properly surveyed. The defining of a boundary line by some natural physical fea- ture easily falls into a four-fold division: Ocean and tributary waters at high or low tide; 236 the channel of a navigable stream; 267 591, fixing the boundary line be- tween Massachusetts and Rhode Island; Edson v. Crangle, 62 Ohio St. 49, determining the northern boundary line between the United States and Canada contiguous to the state of Ohio. 256 The Pea Patch Island Case, 1 Wall. Jr. Append. IX, Fed. Gas. No. 18,311; Smith v. Skagit County Com'rs, 45 Fed. 725; The Atlantic, 1 Ware, 121, Fed. Cas. No. 621. The Bay of Passamaquoddy held common for purposes of navigation. City of San Diego v. Granniss, 77 Cal. 511, and Fisher v. San Diego Police Ct., 86 Cal. 158, hold that the municipal jurisdiction of the state extends over the waters of the bay and into the ocean one marine league from the shore. People v. Oakland Water Front Co., 118 Cal. 234; Thompson v. Blackwell, 5 La. (0. S.) 465; Ste- vens v. Thatcher, 91 Me. 70, 39 Atl. 282; Adams v. Ulmer, 91 Me. 47; The Fame, 3 Mass. 147; Trull T. Wheeler, 36 Mass. (19 Pick.) 240; Forest River Lead Co. v. City of Salem, 165 Mass. 193. Atlantic Dock Co. v. City of Brooklyn, 3 Keyes (N. Y.) 445. The liability of the municipality for the destruction of property by mob is considered. The case of Orr v. City of Brooklyn, 36 N. Y. 661, also in- volves a discussion of the same ques- tion. Tebo v. City of Brooklyn, 57 Hun, 591, 10 N. Y. Supp. 749; affirmed in 134 N. Y. 341; Stryker v. City of New York, 19 Johns. (N. Y.) 179; Abb. Corp. 7. Orr v. City of Brooklyn, 36 N. Y. 661; Robins v. Ackerly, 91 N. Y. 98; Sage v. City of New York, 154 N. Y. 61; Jarvis T. Lynch, 157 N. Y. 445; State v. Eason, 114 N. C. 787. Galveston City Surf Bathing Co. v. Heidenheimer, 63 Tex. 559. A city whose boundary line extends to the sea shore and is bounded by it has jurisdiction over the shore and surf for police and sanitary pur- poses, but it will have no power to grant exclusive privileges for the use of such shore. Pacific Sheet Metal Works v. Roeder, 26 Wash. 183. See, also, Farnham, Waters, pp. 1482 et seq. 257 Handly's Lessee v. Anthony, 5 Wheat. (U. S.) 374, deciding that the boundary line of the state of Ken- tucky extends only to the low-water mark on the western side of the Ohio River. In this case it is also held that where a river, the bound- ary between two nations or states, is in neither, and there be no con- vention respecting it, each holds to the middle of the stream. If one state, however, is the original pro- prietor and grants territory on one side only, it retains the river with- in its domain and the newly-erected state extends to the river only, and low-water mark is its boundary. See, also, as holding this last propo- sition with regard to the boundary of Georgia, Howard v. Ingersoll, 13 How. (U. S.) 381; State of Alabama v. State of Georgia, 23 How. (U. S.) 506; Jones v. Soulard, 24 How. (U. S.) 41. State of Indiana T. State of Ken- 98 CORPORATE LIFE; EXISTENCE. 56 the course of a non-navigable stream ; 258 or a line with certain well known natural objects for calls. 259 tucky, 136 U. S. 479; following Handly's Lessee v. Anthony, 5 Wheat. (U. S.) 374. In this case it was also held that the continuous claiming and exercising of jurisdic- tion to a certain boundary, i. e., low- water mark, when the evidence of documents and witnesses is conflict- ing, was decisive in favor of the claim of Kentucky. State of Iowa v. State of Illinois, 147 U. S. 1, where the expression "middle of the Mississippi River" and "the center of the main channel of that river" are held synonymous terms, and mean the middle of the main navigable channel or channel most used. Here the boundary was established by an enabling act. St. Joseph & G. I. K. Co. v. Dev- ereux, 41 Fed. 14; Ft. Smith Bridge Co. v. Hawkins, 54 Ark. 509; Wa- ters v. Pool, 130 Cal. 136, 62 Pac. 385. Pratt v. State, 5 Conn. 388. The channel of the Connecticut River not within the patented limits of ei- ther of the towns of Lynne or Say- brook, but the jurisdiction of each town for the service of process and enforcement of law extends by an- cient invariable usage to the center of the stream. Rowe v. Smith, 51 Conn. 266; Simpson v. State, 92 Ga. 41; Village of Brooklyn v. Smith, 104 111. 429; Buttenuth v. St. Louis Bridge Co., 123 111. 535; People v. Madison County Sup'rs, 125 111. 9; St. Louis Bridge Co. v. People, 125 111. 226; Keokuk & H. Bridge Co. v. People, 145 111. 596; Belief ontaine Imp. Co. v. Niedringhaus, 181 111. 426; Chi- cago & N. W. R. Co. v. City of Clin- ton, 88 Iowa, 188, 55 N. W. 462, fol- lowing State of Iowa v. State of Illinois, 147 U. S. 1; Hart v. Rogers, 48 Ky. (9 B. Mon.) 418; Louisville Bridge Co. v. City of Louisville, 81 Ky. 189; Henderson Bridge Co. v. City of Henderson, 90 Ky. 498. Myers v. Perry, 1 La. Ann. 372. Boundary line between Mississippi and Louisiana held to be the mid- dle of the river. Same of bound- ary line between Louisiana and Texas. State v. Burton, 105 La. 516. Granger v. Avery, 64 Me. 292. In State v. Keane, 84 Mo. App. 127, the result upon a boundary of a sudden abandonment of an old channel, with a new course for the stream, is discussed. Morgan v. Reading, 11 Miss. (3 Smedes & M.) 366; Sioux City Bridge Co. v. Dakota County, 61 Neb. 75; Boscawen v. Canterbury, 23 N. H. (3 Fost.) 188; State v. Canterbury, 28 N. H. (8 Fost.) 195; State v. Davis, 25 N. J. Law (1 Dutch.) 386; State v. Metz, 29 N. J. Law (5 Dutch.) 122; In re Spier, 50 Hun, 607, 3 N. Y. Supp. 438; Udall v. Trustees of Brooklyn, 19 Johns. (N. Y.) 175; Stryker v. City of New York, 19 Johns. (N. Y.) 179. State v. Eason, 114 N. C. 787. Low-water line and not the thread of the stream held the boundary. Robinson v. Lamb, 131 N. C. 229. Where a certain stream is designat- ed as a boundary line between two counties, that branch which has al- ways been considered as the main channel of the river will be consid- ered as such boundary. Booth v. Shepherd, 8 Ohio St. 243. Gilchrist v. Strong, 167 Pa. 628, established the boundary of Wilkes- 56 NAME AND BOUNDARIES. 99 Where a boundary line does not follow the course of a natural physical feature it is established by a line properly surveyed and determined according to stated monuments.- 60 It is not necessary where a call is "within or about" that the course so designated should be strictly followed, and acquiescence as evidenced by the acts of parties in the course of an incorrect boundary line for man}- years operates as an estoppel. 261 Following the rule that barre as extending to the middle of the Susquehanna River. State v. City of Columbia, 27 S. C. 137. 258 in re Inhabitants of Ipswich, 30 Mass. (13 Pick.) 431. Boundary follows thread of stream. Cold Spring Iron Works v. Inhab- itants of Tolland, 63 Mass. (9 Gush.) 492; Flynn v. City of Boston, 153 Mass. 372, 26 N. E. 868; Perkins v. Inhabitants of Oxford, 66 Me. 545; People v. Bouchard, 82 Mich. 156; State v. Gilmanton, 9 N. H. 461; Johns v. Davidson, 16 Pa. 512. 259Belding v. Hebard, 103 Fed. 532; Rabun County v. Habersham County, 79 Ga. 248, 5 S. E. 198; Beale v. Patterson, 3 Watts & S. (Pa.) 379; Roane County v. Ander- son County, 89 Tenn. 259, 14 S. W. 1079; Davidson County v. Cheatham County (Tenn. Ch. App.) 63 S. W. 209. aeo state of Virginia v. State of Tennessee, 148 U. S. 503; United States v. State of Texas, 162 U. S. 1; Jenkins v. Trager, 40 Fed. 726; Belding v. Hebard, 103 Fed. 532; Drummond v. State, 61 Ala. 64; Link v. Jones, 15 Colo. App. 281, 62 Pac. 339; New Jersey Southern R. Co. v. Chandler, 65 N. J. Law, 173, 46 Atl. 732. State v. Rainey, 121 N. C. 612, 28 S. E. 366. A charter reading that the boundaries of a town shall be "one-fourth of a mile east, west, north and south from the center of the town and shall run with the four cardinal points of the compass" con- strued. Horiston v. City Council of Charles- ton, 1 McCord (S. C.) 345; Mont- gomery v. Ives, 21 Miss. (13 Smedes & M.) 161. State T. Merriman, 6 Wis. 14. Township surveys are not to be taken conclusively as squares of six miles, though prima facie this is true. 261 State of Virginia v. State of Tennessee, 148 U. S. 503; United States v. State of Texas, 162 U. S. 1. Acquiescence not established. Strosser v. City of Ft. Wayne, 100 Ind. 443; Belknap v. City of Louis- ville, 93 Ky. 444, 20 S. W. 309; Wick- liffe v. City of Lexington, 50 Ky. (11 B. Mon.) 155; Smith v. City of St. Louis, 21 Mo. 36; Omaha v. City of South Omaha, 31 Neb. 378, 47 N. W. 1113; Chosen Freeholders of Union County v. Essex County Free- holders, 43 N. J. Law, 391; People v. Carpenter, 24 N. Y. 86. Humboldt County v. Lander Coun- ty, 24 Nev. 461, 56 Pac. 228. Cer- tain facts held not to constitute es- toppel or acquiescence. Hanson v. Russel, 28 N. H. (8 Fost.) Ill; Hecker v. Sterling, 36 Pa. 423; Lampasas Bounty v. Cor- yell County, 27 Tex. Civ. App. 195, 65 S. W. 67. Smith v. Town of Rockingham, 25 Vt. 645. Acts of adjoining proprie- tors for a period of twenty years. 100 CORPORATE LIFE; EXISTENCE. 57 that is certain which can be made certain, the calls and courses of a boundary will be held certain and definite if they can be readily ascertained and followed by surveyors or if their location can be established by reference to certain definite objects. 262 57. Corporate boundaries; how established. The preceding section deals with the definition and description of boundary lines. In this and following sections will be con- sidered, in detail, the establishment of such lines, with the legal authority and the proper procedure at hearings. The funda- mental principle that a public corporation holds its existence and its powers at the will of the sovereign is again suggested. Its boundaries as a part of its legal existence are determined and changed by the same authority. We look therefore to the sover- eign, acting directly or through a delegated body, usually the legislature, for the legal authority necessary to the valid estab- lishment or change of boundary lines. 263 recognizing a certain stone wall as the boundary line between two towns, does not bind the towns. Hamilton v. McNeil, 13 Grat. (Va.) 389; Smith v. Dees, 92 Ga. 549, 17 S. E. 925, and Marsalis v. Garrison (Tex. Civ. App.) 27 S. W. 929, hold, however, to the contrary. 262 Town of New Decatur v. Nel- son, 102 Ala. 556, 15 So. 275; City of San Diego v. Granniss, 77 Cal. 511; County of San Bernardino v. Reich- ert, 87 Cal. 287; People v. Town of Linden, 107 Cal. 94, 40 Pac. 115. Hollenbeck v. Sykes, 17 Colo. 317, 29 Pac. 380. Here the rule is also laid down that monuments control courses, and a specific course will control a general one. Morrison v. Langworthy, 4 G. Greene (Iowa) 177; McClintock v. Rogers, 11 111. 279; Gate v. Thayer, 3 Me. (3 Greenl.) 71; Raab v. State, 7 Md. 483; Bechtel v. Village of Edgewater, 45 Hun (N. Y.) 240; Elmendorf v. City of New York, 25 Wend. (N. Y.) 693; New Jersey Southern R. Co. v. Chandler, 65 N. J. Law, 173, 46 Atl. 732; Proprietors of Enfield v. Day, 11 N. H. 520; Eu- reka County v. Lander County, 21 Nev. 144, 24 Pac. 871; Com. v. Ful- lerton, 12 Pa. 266; State v. Broach (Tex. Civ. App.) 35 S. W. 86; State v. Wofford, 90 Tex. 514; French v. Bankhead, 11 Grat. (Va.) 136; Cut- ting v. Stone, 7 Vt. 471; Gray v. Sheldon, 8 Vt. 402; Williams v. Wil- lard, 23 Vt. 369; State v. Hoff (Tex. Civ. App.) 29 S. W. 672. zes city of Little Rock v. Parish, 36 Ark. 166; Stilz v. City of Indian- apolis, 55 Ind. 515; City of Gales- burg v. Hawkinson, 75 111. 152; Division of Howard County, 15 Kan. 194; City of New Orleans v. Cazelar, 27 La. Ann. 156. See note to Com. v. City of Roxbury, 75 Mass. (9 Gray) 512. People v. Bennett, 29 Mich. 451; Martin v. Dix, 52 Miss. 53; State v. Crow Wing County Com'rs, 66 Minn. 519, 68 N. W. 767, 69 N. W. 925, 73 N. W. 631; State v. Pioneer Press Co., 66 Minn. 536, 58 NAME AND BOUNDARIES. To acts changing or establishing the boundary lines of public corporations, the usual rules of construction apply. The intent of the legislature will be ascertained if possible and given effect, and different acts harmonized. 264 58. Boundary lines; agency for their establishment. The legislature having power to fix or establish the boundaries of public corporations in the first instance, and therefore to sub- sequently change them, it is also within their power, though some cases hold to the contrary, to delegate to some ministerial or judicial body the right to determine them in the manner pro- vided. 268 The cases holding contrary to this rule base their findings upon the principle that the establishment of boundaries, except so far as ministerial or clerical duties in connection with it are con- cerned, is a legislative matter, delegated to the legislature itself by the sovereign people, and that under a familiar rule the per- formance of this legislative duty cannot be delegated. 266 It is quite competent, however, for the legislature to provide for a tribunal to consider the change or the establishment of boundary lines, 267 with power to control proceedings before them, 268 includ- 68 N. W. 769; Schaffner v. Young, v. Smith, 42 Kan. 433; Kelly v. 10 N. D. 245, 86 N. W. 733; Stuart Meeks, 87 Mo. 396; City of Wahoo v. v. Kirley, 12 S. D. 245, 81 N. W. Dickinson, 23 Neb. 426; Whitehouse 147; Wade v. City of Richmond, 18 v. Bickford, 29 N. H. 471; Pitman Grat. (Va.) 583; Washburn v. City v. Town of Albany, 34 N. H. 577; of Oshkosh, 60 Wis. 453. Wells v. Jackson Iron Mfg. Co., 48 24 Link v. Jones, 15 Colo. App. N. H. 491; People v. Carpenter, 24 281, 62 Pac. 339; Indiana, I. & I. R. N. Y. 86; Blanchard v. Bissell, 11 Co. v. People, 154 111. 558; Kaufman Ohio St. 96. County v. McGaughey (Tex. Civ. see People v. Bennett, 29 Mich. 451. App.) 32 S. W. 927; Wright v. Jones, se? State of Missouri v. State of 14 Tex. Civ. App. 423, 38 S. W. 249. Iowa, 160 U. S. 688; Belding v. He- aes Fisher v. San Diego City Po- bard, 103 Fed. 532; Prince George's lice Ct., 86 Cal. 158; Town of Suf- County Com'rs v. Village of Bladens- field v. Town of East Granby, 52 burg, 51 Md. 465; Inhabitants of Conn. 175; City of Jacksonville v. Lisbon v. Inhabitants of Bowdoin, L'Engle, 20 Fla. 344; Town of Cicero 53 Mo. 324. T. City of Chicago, 182 111. 301; Stilz Inhabitants of Winthrop v. In- v. City of Indianapolis, 55 Ind. 515; habitants of Readfield, 90 Me. 235. City of Vincennes v. Windman, 72 No necessity for taking of notes by Ind. 218; City of Delphi v. Startz- commissioners. This case also man, 104 Ind. 343; City of Emporia holds that previous employment as 102 CORPORATE LIFE; EXISTENCE. 59 ing the presentation of evidence, 269 listen to objections, and make an order or finding 270 accompanied by a map or plat 271 which shall establish the boundary and from which there may be an appeal to a higher and judicial tribunal, or upon which a suit can be maintained to determine the question by those who have the right and who are not barred by estoppel or laches. 272 This tri- bunal on appeal, it was held in one case, had only power to in- quire into the conduct .and motives of the commissioners making the finding or order. They could not review questions of law or fact involved. 273 The legislative adoption of the report of a com- mission selected by two states to settle the boundary line beween them does not make a "compact," forbidden by the constitution of the United States without the consent of Congress. 274 The set- tlement of boundary lines between towns by such organizations, without the intervention of the legislature, cannot affect the title of the commonwealth, so it has been held in Massachusetts, to the seashore within one of the towns. 275 59. Proceedings for the establishment of corporate boundaries and miscellaneous matters in connection therewith. The commissioners or officials appointed or elected under the authority authorizing the establishment of a boundary line are not usually considered, in their collective capacity, a judicial body. 276 surveyor to run the line in dispute Fed. 333; Inhabitants of Wesley v. does not disqualify a person from Sargent, 38 Me. 315; Bailey v. Rolfe, acting as one of the commissioners. 16 N. H. 247. Kaufman County v. McGaughey, Henniker v. Hopkinton, 18 N. H. 3 Tex. Civ. App. 655, 21 S. W. 261; 98, where two termini of a line are Marsalis v. Creager, 2 Tex. Civ. App. determined, the line between them 368, 21 S. W. 545; Wise County v. must be straight unless the contrary Montague County, 21 Tex. Civ. App. appears by description. The same 444, 52 S. W. 615. in State v. City of Columbia, 27 S. zes covers v. Westchester County C. 137, 3 S. E. 55. Sup'rs, 55 App. Div. 40, 67 N. Y. 272 Gunnison County Com'rs r. Supp. 27. Saguache County Com'rs, 2 Colo. 269 inhabitants of Winthrop v. In- App. 412, 31 Pac. 183. habitants of Readfield, 90 Me. 235. ZTS Inhabitants of Winthrop v. In- 270 State of Indiana v. State of habitants of Readfield, 90 Me. 235. Kentucky, 163 U. S. 520; Memphis 2-4 state of Virginia v. State of & C. Packet Co. v. Pikey, 142 Ind. Tennessee, 148 U. S. 503. 304. 276 Com. v. City of Roxbury, 75 271 Bluefield Waterworks & Imp. Mass. (9 Gray) 451. Co. v. Sanders, 11 C. C. A. 232, 63 275 Under Tex. Rev. St. art. 808a, 61 NAME AND BOUNDARIES. 103 It is for them to consider evidence that may be offered pertinent to the question before them, without applying, however, as to its introduction, the strict rules of law, 277 and after having consid- ered the evidence or established the boundary in the manner pre- scribed by lawful authority, make their report with, if occasion requires, findings of fact 278 and possibly conclusions of law. The expense of such proceedings may be ascertained by them and certified to the proper disbursing officers for payment. The statutes in some states require, as the initiative of pro- ceedings establishing boundary lines, a petition. 279 This should contain the proper averments, and the description of the proposed boundary should be specific and definite. 280 No notice is required to be given except to interested persons. 281 60. Objections to the establishment of corporate boundaries. Whether the power to establish or change boundary lines is vested in a prescribed court or in an elective or appointive board especially provided for the occasion, the rule of law holds that objections to the bringing of such proceedings, to their validity in any respect, or to the jurisdiction of the tribunal, must be made within the time fixed by law. If parties are guilty of laches there can be no relief given even in cases where their objections, if made within the proper time, are well founded. This rule applies not only to the assignment of errors but also to the manner or the place of the pendency of such proceedings. 282 61. Location of corporate boundaries. Where the location of boundaries is placed in the hands of an the district court has full and com- Deer Lodge County Com'rs, 10 Mont, plete jurisdiction of an action 325, 25 Pac. 1041; Campton v. Hold- brought by a county to establish a erness, 25 N. H. 225. boundary line, though proceedings 2-9 Boscawen v. Canterbury, 23 N. may be pending in an inferior court H. 188. for the same purpose. Lampasas 280 Howell v. Kinney, 99 Ga. 544, County v. Coryell County, 27 Tex. 27 S. E. 204. Civ. App. 195, 65 S. W. 67. 281 Marsalis v. Garrison (Tex. Civ. ziTMcKissick v. Colquhoun, 18 App.) 27 S. W. 929. Tex. 148. 282 EX parte Rhodes, 43 Ala. 373; 278 state v. Atchison County Belknap v. City of Louisville, 14 Ky. Com'rs, 44 Kan. 186; Kornburj v. L. R. 420, 20 S. W. 309. 104 CORPORATE LIFE; EXISTENCE. X 53 individual, a personal survey is not necessary. 283 His approval of a line surveyed by competent men under his control and direc- tion will be sufficient, 284 and acts in excess of his authority will not affect existing lines. 285 62. Appeal from order fixing corporate boundaries. Usually appeals can be taken from an order of commissioners appointed to consider and establish corporate boundary lines, 288 although this right is not essential to the validity of such pro- ceedings or the line established. It is within the discretion of the legislature to provide for an appeal, the establishment of the boundary line in the first instance being a question exclusively for its determination. 287 The time fixed by statute within which the validity of the line can be questioned, either by an appeal from the order of the commissioners or a suit brought to deter- mine the question, is deemed mandatory. 288 63. Change of corporate boundary. The boundary lines of a public corporation when established in the manner prescribed by law remain fixed until changed by like authority. On the annexation or division of territory, bound- ary lines of the old organizations must necessarily be changed or adjusted to suit the new conditions. The legislature having the power in the first instance to determine boundary lines must grant authority for the change, 289 and as in the original estab- 283 Hinsdale County Com'rs v. Wise County v. Montague County, Mineral County Com'rs, 9 Colo. App. 21 Tex. Civ. App. 444. 368, 48 Pac. 675. In Ewing v. State, 81 Tex. 172, 16 28* Rice v. Trinity County, 110 Cal. S. W. 872, it is held that under Rev. 247. St. of Tex. art. 508, the boundaries 285 Humbolclt County v. 'Lander of a municipal corporation as estab- County, 24 Nev. 461, 56 Pac. 228. lished at incorporation are not con- 286 City of San Jose v. Uridias, 37 elusive. Cal. 339; Routt County Com'rs v. Washburn v. City of Oshkosh, 60 Grand County Com'rs, 4 Colo. App. Wis. 453. 306, 35 Pac. 1061; Warren County sss Routt County Com'rs v. Grand Com'rs v. State, 15 Ind. 250. County Com'rs, 4 Colo. App. 306, 35 287 Flynn v. City of Boston, 153 Pac. 1061; Gunnison County Com'rs Mass. 372; Pool v. Brown, 98 Mo. v. Saguache County Com'rs, 2 Colo. 675; In re Plunkett Creek Tp., 148 App. 412; Marsalis v. Creager, 2 Tex. Pa. 299, 23 Atl. 1041; Roane County Civ. App. 368; Kaufman County v. V. Anderson County, 89 Tenn. 25?; McGaughey, 3 Tex. Civ. App. 655. 63 NAME AND BOUNDARIES. 105 lishment the changed line may be designated in the act or au- thority; or, in those states where the contrary is not held, the ministerial duties may be delegated to a subordinate body, either judicial or ministerial in its nature, 290 whose duty it is, after due consideration of the petition and evidence submitted to them; to make an order or finding, accompanied usually by a map or a plat, 291 which when properly filed gives force to the change, and new relations are established between persons and property and corporate organizations. In many cases the change of boundary is made dependent upon the consent of the people residing within the districts affected. This is especially true of municipal corporations proper. 292 A line may not be changed until after the consent of the requisite number of voters or the required majority in the legislature. 293 The duty imposed upon commissioners to change boundary lines ass in re Executive Communica- tion of Jan. 16, 1873, 14 Fla. 320; Howell v. Kinney, 99 Ga. 544; Tay- lor T. Com., 54 Ky. (15 B. Mon.) 11; Walters v. Richardson, 93 Ky. 374, 20 S. W. 279; Adams v. Ulmer, 91 Me. 47, 39 Atl. 347; People v. Mabie, 142 N. Y. 343, 37 N. E. 115; Gorrill v. Whittier, 3 N. H. 265; In re Wetmore Tp., 68 Pa. 340; Har- rison Tp. v. Schoolcraft County Sup'rs, 117 Mich. 215, 75 N. W. 456. City of Westport v. Kansas City, 103 Mo. 141. Where the manner in which city limits can be extended is prescribed by the state constitution, the legislature has no power to pass an act authorizing their extension in a different manner. See, also, People v. Mabie, 73 Hun (N. Y.) 495, which holds that a municipal corporation organized under a spe- cial act cannot change its boun- daries under the provisions of a general law but is confined to the manner prescribed in the special act or charter. 290 in re Mathews, 59 App. Div. 159, 69 N. Y. Supp. 203. See State v. Haverly, 62 Neb. 767, 87 N. W. 959, as to effect upon office of county commissioner by change in boun- dary lines. Van Den Bos v. Doug- las County Com'rs, 11 S. D. 190, 76 N. W. 935. 201 in re Catharine & Frankstown Tps., 31 Pa. 303. In Smith v. Sher- ry, 54 Wis. 114, the statutory pro- visions regarding an order or find- ing by county commissioners rela- tive to the change of boundary lines are mandatory in their character and must be substantially complied with in order to effect such a change. 292 Dodson v. Town of Ft. Smith, 33 Ark. 508; Strosser v. City of Ft. Wayne, 100 Ind. 443; Morford v. Unger, 8 Iowa, 82; City of Topeka v. Gillett, 32 Kan. 431; Daly v. Mor- gan, 69 Md. 460; Stone v. City of Charlestown, 114 Mass. 214; Hew- itt's Appeal, 88 Pa. 55; Stuart v. Kirley, 12 S. D. 245; State v. City of Waxahachie, 81 Tex. 626. 293 Jackson v. State, 131 Ala. 21, 31 So. 380. See, also, cases cited in preceding note. 106 CORPORATE LIFE; EXISTENCE. 55 on the presentation to them of a petition properly signed and veri- fied is not discretionary in its character, and its performance may be compelled by mandamus. 294 If a petition is required by statute as preliminary to action, its averments and signatures must fol- low the provisions of the law. 295 64. Judicial recognition. Boundary lines as established by competent tribunals become matters of public record of which the courts will take cognizance and exercise jurisdiction accordingly. 296 Nor can they be col- laterally attacked in suits between private individuals. 297 65. Effect of the establishment or change of a boundary line. A public corporation, of whatever grade, is given, by the legis- lature, certain duties for its performance, and, in order to per- form these duties, certain rights and powers. Either as an agency of the government or considered as a private corporation, it enter- tains jurisdiction of, and control over, persons and property with- in its limits. 298 In order that it may act as an agency of govern- ment for the welfare and protection of those entitled, it is nec- essary that it levy taxes and disburse the proceeds for public purposes, and where boundary lines are changed it is competent for the legislature to authorize the levy of taxes at different rates upon different portions of municipal territory. 299 A change in a boundary line takes from one corporation persons and property, and places them within the jurisdiction of another. 300 294 Hawkins T. Starke County 103 Fed. 532; Buncombe v. Prindle, Com'rs, 14 Ind. 521. 12 Iowa, 1; Russ v. City of Boston, 295 Foster v. Hare, 26 Tex. Civ. 157 Mass. 60, 31 N. E. 708. App. 177, 62 S. W. 541. 299 United States v. City of Mem- 296 state v. Dunwell, 3 R. I. 127. phis, 97 U. S. 284; Gillette v. City of 297 Folk's Lessee v. Gentry, 1 Hartford, 31 Conn. 357; Durant v. Overt. (Tenn.) 269; Shank v. Town Kauffman, 34 Iowa, 194; Evans v. of Ravenswood, 43 W. Va. 223, 27 City of Council Bluffs, 65 Iowa, 238; S. E. 223. Courtney v. City of Louisville, 75 298Fleeger v. Pool, 1 McLean, 185, Ky. (12 Bush) 419; Cheaney v. Fed. Cas. No. 4,860; Poole v. Flee- Hooser, 48 Ky. (9 B. Mon.) 330; ger's Lessee, 11 Pet. (U. S.) 185; Benoist v. City of St. Louis. 19 Mo. Bennett v. Boggs, 1 Baldw. 76, Fed. 179. See, also, Cooley, Taxation Cas. No. 1,319; Bigelow v. Nicker- (2d Ed.) p. 157. son, 70 Fed. 113; Belding v. Hebard, soo Langford v. Monteith, 102 U. S. 66 NAME AND BOUNDARIES. 107 A public corporation exercises the jurisdiction and the powers suggested in the preceding paragraph in many ways: It con- trols and regulates personal and property rights, 301 and exer- cises, over all within its borders, its police powers for the protec- tion of life, health, good morals and property; 302 it maintains all the machinery of government, the use of which is granted to it by the sovereign, judicial, quasi legislative, ministerial and clerical, officers and bodies; it enforces their orders and regula- tions with all the power of the state ; and as these powers and bodies may vary under different organizations, it follows that a change from one to any other is a matter sometimes not lightly to be considered. Where territory is ceded by a state to the United States, it is entitled to the same sovereignty and jurisdiction originally pos- sessed by the state ceding it. 303 In Indiana the limits of two different organizations, viz., a civil township and a school township, can be identical, and the juris- diction and powers of these separate organizations will be full and complete as to their own property and duties. 304 66. Seat of government. As essential and necessary to the existence of a public corpora- tion, there must be what is termed the seat of government, the 145; Duncombe v. Prindle, 12 Iowa, S. W. 809; People v. Central R. of 1; Yellowstone County Com'rs v. New Jersey, 48 Barb. (N. Y.) 478; Northern Pac. R. Co., 10 Mont. 414, Neal v. Com., 17 Serg. & R. (Pa.) 25 Pac. 1058; Baldwin v. Goldfrank, 67. 9 Tex. Civ. App. 269, 26 S. W. 155; The case of In re Mattson, ante, Moss v. Gibbs, 57 Tenn. (10 Heisk.) also holds that the provision for con- 283. current jurisdiction between Wash- 301 Smith v. Skagit County Com'rs, ington and Oregon over the Colum- 45 Fed. 725. bia River was not a limitation on 302 Ex parte Marsh, 57 Fed. 719; the sovereignty of the states nor an Manchester v. Com. of Massachu- interference with their jurisdiction setts, 139 U. S. 240, 264; Humboldt as equal sovereigns. Lumber Manufacturers' Ass'n v. 303 Columbus Ins. Co. v. Curtenius, Christopherson, 73 Fed. 239. As to 6 McLean, 209, Fed. Cas. No. 3,045; concurrent jurisdiction of two Pollard v. Hagan, 3 How. (U. S.) states over navigable waters between 212; City of Mobile v. Eslava, 9 Port, them, see In re Mattson, 69 Fed. (Ala.) 577; Dunlap v. Com., 108 Pa. 535; Sherlock v. Ailing, 44 Ind. 184; 607. Welsh v. State, 126 Ind. 71; Meyler 304 Heizer v. Yohn, 37 Ind. 415. v. Wedding, 21 Ky. L. R. 1006, 53 108 CORPORATE LIFE; EXISTENCE. 67 place in which the public officials perform their duties as agencies of the sovereign, 305 where public records are kept, where public buildings are constructed and devoted to public uses, and where all the machinery of government adopted or used by a particular grade of corporation is employed for the purposes authorized by law. The seat of government of the state or sovereign is termed the capital, the location of which is determined by vote of the people or through constitutional provision, and which ordinarily, after its original location, is not changed. 306 A municipal corporation is itself a center of population, is itself the seat of its government. The law, therefore, as we find it in the reported cases relating to or discussing seats of govern- ment, is limited practically to the establishment of the county seat as the official center of a public quasi corporation, the county, either by act of legislature or under constitutional provisions. 307 67. Original location of a county seat. The sovereign acting through its delegated body, the legisla- ture, determines the boundary lines of that particular grade of public corporation known as the county, which, in the United States, is the usual form of organization intended to perform and exercise certain governmental functions and powers. In the orig- inal organization of these quasi corporations, the location of the seat of government is usually designated, 308 and it is competent 305 McNair v. Williams, 28 Ark. ton County Sup'rs, 2 Chand. (Wis.) 200; Maxey v. Mack, 30 Ark. 472; 247, 2 Pin. 552. Kelly v. Tate, 43 Ga. 535; Bucking- sos EX parte Hill, 40 Ala. 121; house v. Gregg, 19 Ind. 401; State v. Frost v. Pfeiffer, 26 Colo. 338, 58 Hamilton County Com'rs, 35 Kan. Pac. 147; Allen v. Lytle, 114 Ga. 640, 15 Am. & Eng. Corp. Gas. 43; 275, 40 S. E. 238. State v. Weld, 39 Minn. 426, 24 Am. Adams v. County of Logan, 11 111. ft Eng. Corp. Cas. 449; State v. For- 337. The legislature also has the ter, 13 S. D. 126. power of removal, even though prop- 806 Edwards v. Lesueur, 132 Mo. erty was given to the county in con- 410, 33 S. W. 1130; Slack v. Jacob, sideration of the permanent location 8 W. Va. 612. of the county seat at a certain place. SOT EX parte Hill, 40 Ala. 121; And the same is held in State v. Jewell v. Weed, 18 Minn. 272 (Gil. Sherman County Com'rs, 39 Kan. 293, 247); Barnes v. Pike County Sup'rs, 18 Pac. 179. Megret v. Parish of Ver- 51 Miss. 305; Walker v. Tarrant million, 10 La. Ann. 670; Jewell v. County, 20 Tex. 16; State v. Larra- Weed, 18 Minn. 272 (Gil. 247); bee, 1 Wis. 200; State v. Washing- Monet v. Jones, 18 Miss. (10 Smedes 67 NAME AND BOUNDARIES. 109 for the legislature to either do this or provide, after organization of the county, that it shall be selected by vote of the people at an election to be held as authorized. 309 And where its location is fixed by either of these two modes it is not within the power of public officials to change it through the construction elsewhere of public buildings ordinarily located at the county seat, 310 or by* their failure to remove the public records and offices to the county seat legally selected. 311 The legislature may itself, in an act in- corporating or organizing the county, designate, as has been said, the location of the county seat, or it may, in this act, provide for commissioners who shall perform this duty. 312 Under the last condition where the authority is granted commissioners to ''select and locate some central and convenient place within the same for a county seat," it is not necessary that the place selected should be at the geographical center of the county so long as it is con- venient for the people. 313 The location of the county seat, it has & M.) 237; State v. Smith, 46 Mo. 60. Newton v. Mahoning County Com'rs, 26 Ohio St. 618, affirmed 100 U. S. 548. The location of a county seat as a condition for the gift of property to the county does not cre- ate a contract between the state and the citizens of that town, preventing a subsequent removal. Fall River County v. Powell, 5 S. D. 49; Walker v. Tarrant County, 20 Tex. 16. Gilmore v. Hayworth, 26 Tex. 89, also holds that where there is an ab- solute donation of land there can be no right of reverter upon the re- moval of the county seat, and the acceptance by the county of such gift does not create a contract to continue indefinitely the county seat at that place. State v. Larrabee, 1 Wis. 200; At- torney General v. Fitzpatrick, 2 Wis. 542; State v. Stevens, 112 Wis. 170, 88 N. W. 48. sea State v. Crook, 126 Ala. 600, 28 So. 745; Ter. T. Mohave County Sup'rs, 2 Ariz. 248, 12 Pac. 730; Twiford v. Alamakee County, 4 G. Greene (Iowa) 60; State v. Rotwitt, 15 Mont. 29, 37 Pac. 845; Barnes v. Pike County Sup'rs, 51 Miss. 305; Laws v. Vincent, 16 Neb. 208; Welch v. Wetzel County Ct., 29 W. Va. 63, 1 S. E. 377. 310 Municipality of Lunenburg v. Attorney General, 20 Can. Sup. Ct. 596; State v. Harwi, 36 Kan. 588, 14 Pac. 158. an Wells v. Taylor, 5 Mont. 202, 3 Pac. 255. 312 Skipwith v. Martin, 50 Ark. 141, 6 S. W. 514; Mitchell v. Las- seter, 114 Ga. 275, 40 S. E. 287; Swartz v. Lake County Com'rs, 158 Ind. 141, 63 N. E. 31; Rice v. Shay, 43 Mich. 380; Tetherow v. Grundy County Ct., 9 Mo. 118; Mills v. Mills, 40 N. C. (5 Ired. Eq.) 244. But see Smith v. Magourich, 44 Ga. 163. sis Mitchell v. Lasseter, 114 Ga. 275, 40 S. E. 287. 110 CORPORATE LIFE; EXISTENCE. 68 been held, following a rule of law applying in many instances, cannot be inquired into in a collateral proceeding. 31 * 68. Removal of a county seat. The fixing of a county seat at a certain place does not prevent the legislature from providing for its removal in any manner or at any time which it may designate. 315 Even the acceptance of si* State v. Padgett, 19 Fla. 518; Robinson v. Moore, 25 111. 135; Cleve- land, C., C. & St. L. R. Co. v. Dunn, 63 111. App. 531; Board v. Head, 33 Ky. (3 Dana) 489; State v. Piper, 17 Neb. 614. sis Elwell v. Tucker, 1 Blackf. (Ind.) 285. Allen v. Reed (Okl.) 60 Pac. 782. This case holds that statutes of Okl. 1893, c. 23, are void as being in- consistent with act of congress of March 3, 1893, 10, 14. Alley v. Denson, 8 Tex. 297; Walk- er v. Tarrant County, 20 Tex. 16; Harrell v. Lynch, 65 Tex. 146; In re County Seat of La Fayette County, 2 Chand. (Wis.) 212, 2 Pin. 523; State v. Washington County Sup'rs, 2 Chand. (Wis.) 247, 2 Pin. 552; State v. Portage County Sup'rs, 24 Wis. 49. One of the leading cases on this question is that of Newton v. Ma- honing County Com'rs, 100 U. S. 548, affirming 26 Ohio St. 618. In the year 1846 the legislature of Ohio passed an act locating the county seat of Mahoning County at Can- field upon the fulfillment of certain prescribed terms and conditions which were fully complied with. In 1874 another act was passed provid- ing for its removal from Canfield to Youngstown. A bill was filed claiming that the act of 1846 with the action under it constituted a contract within the meaning and protection of the contract clause of the Federal Constitution. The court in its opinion by Justice Swayne say in part: "In all these cases there can be no contract and no irrepealable law, because they are 'governmental subjects,' and hence within the category before stated. They involve public inter- ests, and legislative acts concerning them are, necessarily, public laws. Every succeeding legislature pos- sesses the same jurisdiction and power with respect to them as its predecessors. The latter have the same power of repeal and modifica- tion which the former had of en- actment, neither more nor less. All occupy, in this respect, a footing of perfect equality. This must neces- sarily be so in the nature of things. It is vital to the public welfare that each one should be able at all times to do whatever the varying circum- stances and present exigencies touching the subject involved may require. A different result would be fraught with evil. "All these considerations apply with full force to the times and places of holding courts. They are both purely public things, and the laws concerning them, must neces- sarily, be of the same character. "If one may be bargained about, so may the other. In this respect there is no difference in principle between them. The same reasoning, pushed a step farther in the same direction, would involve the same re- 68 NAME AND BOUNDARIES. Ill property made conditional upon the location of a county seat at a particular town does not make a contract with property owners of such a nature as to prevent removal. 316 The use of the words "permanently established" or "permanently located" in the orig- inal act does not carry the usual significance of the terms. 317 The suit with respect to the seat of gov- ernment of a state. If a State Cap- itol were sought to be removed, un- der the circumstances of this case with respect to the county seat, whatever the public exigencies or the force of the public sentiment which demanded it, those interested, as are the plaintiffs in error, might, according to their argument, effec- tually forbid and prevent it; and this result could be brought about by means of a bill in equity and a perpetual injunction." The court then conceded for the purposes of the opinion that there was a contract as claimed by the plaintiffs in error and proceeded to discuss the rules of construction which should apply to such con- tracts. "The rules of interpretation touching such contracts are well set- tled in this court. In Tucker v. Ferguson, 89 U. S. (22 Wall.) 527, we said: 'But the contract must be shown to exist. There is no pre- sumption in its favor. Every rea- sonable doubt should be resolved against it. Where it exists, it is to be rigidly scrutinized, and never permitted to extend either in scope or duration beyond what the terms of the concession clearly require.' There must have been a deliberate intention clearly manifested on the part of the state to grant what is claimed. Such a purpose cannot be inferred from equivocal language. * * * It must not be a mere gratuity. There must be a sufficient consideration, or, no matter how long the alleged right has been en- joyed, it may be resumed by the State at its pleasure. * * * No grant can be raised by mere infer- ence or presumption, and the right granted must be clearly denned. * * * 'The rule of construction in this class of cases is that it shall be most strongly against the cor- poration. Every reasonable doubt is to be resolved adversely. Nothing is to be taken as conceded but what is given in unmistakable terms or by an implication equally clear. The affirmative must be shown. Silence is negation, and doubt is fatal to the claim. This doctrine is vital to the public welfare. It is axiomatic in the jurisprudence of this court. Northwestern Fertilizing Co. v. Vil- lage of Hyde Park, 97 U. S. 659." 3ie Moses v. Kearney, 31 Ark. 261; Twiford v. Alamakee County, 4 G. Greene (Iowa) 60; Adams v. Logan County, 11 111. 337; Harris v. Shaw, 13 111. 463; Armstrong v. Dearborn County Com'rs, 4 Blackf. (Ind.) 208; Swartz v. Lake County Com'rs, 158 Ind. 141, 63 N. E. 31; State v. Sher- man County Comrs, 39 Kan. 293, 18 Pac. 179; State v. Jones, 23 N. C. (1 Ired.) 414; Newton v. Mahoning County Com'rs, 26 Ohio St. 618; Al- ley v. Denson, 8 Tex. 297; Gilmore v. Hayworth, 26 Tex. 89. 317 Newton v. Mahoning County Com'rs, 100 U. S. 548; Armstrong v. Dearborn County Com'rs, 4 Blackf. (Ind.) 208; Harris v. Shaw, 13 111. 463. 112 CORPORATE LIFE; EXISTENCE. 68 removal is ordinarily effected pursuant to a legislative act in itself directing a change and naming the new county seat, 318 in some cases passed pursuant to a constitutional provision ; 319 or the act may provide for commissioners or a reference to a judicial body to determine this question. 320 Or again, this being the usual method, the constitutional or statutory authority for removal may provide for a change by the consent of the people residing with- in the county, through an election held in the manner to be considered in succeeding sections. 321 Lawful authority for the removal is the first consideration. It has been held that where a statute provides upon the fixing of a county seat in a particular place "it shall not be lawful to change the county seat again for ten years," such language is not a bar to the filing of a petition for an election to change such county seat before the lapse of sis Lake County Com'rs v. State, 24 Fla. 263, 4 So. 795; Attorney Gen- eral v. Canvassers of Iron County, 64 Mich. 607, 31 N. W. 539; State v. Perry County Com'rs, 5 Ohio St. 497; Noble v. Noble County Com'rs, 5 Ohio St. 524. sis Livermore v. Waite, 102 Cal. 113, 36 Pac. 424; People v. Waite (Cal.) 36 Pac. 431; Doan v. Logan County Com'rs, 2 Idaho, 781, 26 Pac. 167; In re County Seat of Osage County, 16 Kan. 296; State v. San- ders, 42 Kan. 228; State v. Burton, 47 Kan. 44; Bayard T. Clinge, 16 Minn. 249 (Gil. 221). Nichols v. Walter, 37 Minn. 264, 33 N. W. 800. Chapter 272, Laws of Minnesota, 1885, held unconstitu- tional and void as being special leg- islation and not uniform in its oper- ation throughout the state. Attorney General v. Canvassers of Iron County, 64 Mich. 607; Stuart v. Bair, 67 Tenn. (8 Baxt.) 141; Bouldin v. Lockhart, 69 Tenn. (1 Lea) 195; Combs v. Stumple, 79 Tenn. (11 Lea) 26. 32 <> Russell v. Jacoway, 33 Ark. 191. Lake County Com'rs v. State, 24 Fla. 263, 4 So. 795. An act provid- ing for the temporary location of a county seat by the county commis- sioners, or a majority of them, is not held a delegation of the law- making power. People v. County Officers of St. Clair, 15 Mich. 85. Where a resolu- tion removing the county seat was passed by the board of supervisors upon the condition that "suitable guarantees should be given, provid- ing for the cost of county buildings at the new county seat," a submis- sion to the vote of the people of the question of removal alone, without the condition, rendered the election void. Bagot v. Antrim County Sup'rs, 43 Mich. 577. 321 Varner v. Simmons, 33 Ark. 212; Coleman v. People, 7 Colo. App. 243, 42 Pac. 1041; Adams v. Smith, 6 Dak. 94; Smith v. Magourich, 44 Ga. 163; Conley v. Fleming, 14 Kan. 381; In re County Seat of Linn County, 15 Kan. 500; Edwards v. Police Jury of Avoyelles, 39 La. Ann. 855, 2 So. 804; Simpson v. Bailey, 3 Or. 515; Caruthers v. State, 67 Tex. 132; Welch v. Wetzel County Ct. 29 W. Va. 63, 1 S. E. 337. 69 NAME AND BOUNDARIES. 113 ten years. 322 The doctrine of estoppel will apply to the removal of a county seat where it has been located in a place for over ten years and during that time two elections have been held upon the question of change, each of which has resulted in a defeat of the attempt to remove the same. 323 The expense of proceedings look- ing to the removal of a county seat where a town becomes a party to them, becomes a valid charge upon such town which can be collected in the usual manner. 324 The cost of erecting buildings at the new county seat is limited by the power of the authorities to levy taxes for the purpose of constructing or repairing public buildings. 323 The general rule obtains that the removal of a county seat involves no liability or obligation on the part of the public corporation for the reimbursement of those who have made donations because of its location at a particular place. The obli- gation for reconveying real property will depend largely upon the conditions annexed to the grant. If made unconditionally, there is no reverter to the original grantor or his heirs but the existence of special conditions may create the right to demand a reconveyance. 326 It is, of course, perfectly legal and in some cases pre-eminently just for the legislature to authorize the reconveyance to the parties who originally made donations of such property or their legal representatives and the performance of this duty by the proper authorities may be enforced. 327 69. Petition for removal. "When the agency for the removal of a county seat as authorized by the legislature or constitutional provision is an election, the 322Cochran v. Edwards, 38 Ark. 208; Twiford v. Alamakee County, 136; State v. Burton, 47 Kan. 44. 4 G. Greene (Iowa) 60; Kent Coun- But see Solomon v. Flening, 34 Neb. ty Sup'rs v. Grand Rapids, 61 Mich. ^40, 51 N. W. 304. 144, 27 N. W. 888; Lucas County 323Coleman v. People, 7 Colo. App. Com'rs v. Hunt, 5 Ohio St. 488; Al- 243, 42 Pac. 1041. ley v. Denson, 8 Tex. 297; Cooley, 324 Wells v. Whittaker, 4 111. App Const. Lim. (4th Ed.) p. 481. 381. 327 Harris v. Whiteside County 325Callam v. City of Saginaw, 50 Sup'rs, 105 111. 445; but in Wilkin- Mich. 7. son v. Cheatham, 43 Ga. 258, it was sse Adams v. County of Logan, 11 held that the legislature could corn- Ill. 337; Harris v. Shaw, 13 111. 463. pel a county to pay the damages But see Megret v. Vermillion, 10 La. resulting to property owners of the Ann. 670; Armstrong T. Dearborn town by the removal of the county County Com'rs, 4 Blackf. (Ind.) seat. Abb. Corp. 8. 114 CORPORATE LIFE; EXISTENCE. 70 proceedings are usually initiated by the drafting of a petition in the form and containing the averments required by law, with its presentation to and consideration by a designated official body. 3 - 8 This body is vested with discretionary powers upon the sufficiency of the petition, both in form and subject-matter, and their decisions in this regard ordinarily, in the absence oi fraud, are conclusive and cannot be inquired into by courts of law. 329 They may be limited, however, both as to their manner of action and determination of questions by statutory rules and pro- visions. 330 Statutory provisions relating to the filing of a peti- tion and the establishment of the county seat will not ordinarily prevent successive and subsequent petitions, though the granting of these petitions and the elections held will be controlled by stat- ute. 331 Interested parties have the right to examine all papers on file in connection with removal proceedings, including the pre- liminary petition for the election. 332 70. Its form and averments. Although the commissioners designated by law to whom the petition should be presented have discretionary powers in regard to its sufficiency in averments and form, it is, nevertheless, true that it must contain those required by law and necessary to give jurisdiction to the commissioners, 333 and if its form is prescribed by the statutes, a variation from this will be likely to render the proceedings void. 334 The reason for this rule seems to be that 328Lanier v. Padgett, 18 Fla. 842; sso Herrick v. Carpenter, 54 Iowa, Douglass v. Baker County Com'rs, 349. 23 Fla. 419, 2 So. 776; Mode v. Beas- asi Kent v. Sigler, 158 Ind. 214, 62 ley, 143 Ind. 306; Benton v. Nason, N. E. 491. 26 Kan. 658; Alley v. Benson, 8 Tex. 332 Ayres v. Moan, 34 Neb. 210; 297. Crews v. Coffman, 36 Neb. 824. 329 Markle v. Clay County Com'rs, sss Clay County Com'rs v. Markle, 55 Ind. 185; In re County Seat of 46 Ind. 96; Jackson County Com'rs Linn County, 15 Kan. 500; Slinger- v. State, 147 Ind. 476, 46 N. E. 908; land v. Norton, 59 Minn. 351; State McKinney v. Bradford County V. Langlie, 5 N. D. 594, 67 N. W. Com'rs, 26 Fla. 267; State v. Stock, 958; Baker v. Louisa County Sup'rs, 38 Kan. 154, 16 Pac. 106; Doolittle 40 Iowa, 226; Bennett v. Hethering- v. Cabell County Ct, 28 W. Va. 158. ton, 41 Iowa, 142; Herrick v. Car- 334 Benton v. Nason, 26 Kan. 658. penter, 54 Iowa, 340; Currie v. Paul- In this case the statute prescribed son, 43 Minn. 411. But contra, no form and it was held that a peti- Rickey v. Williams, 8 Wash. 479. tion distinctly expressing the wish 71 NAME AND BOUNDARIES. H5 the removal of a county seat contemplates the affecting or change of rights established but not vested in their character, and that in order to destroy these, technical statutory provisions must be strictly complied with. The courts will not look so much to the substance of the proceedings in these preliminary matters, but to the technicalities. 335 Another reason is that the legislature originally had and ever retains, in the absence of constitutional provision, the right of control over the location of county seats, and as the availability of this right exists in statutes these must be strictly followed. Amendments to the petition when made within a time not affect- ing the validity of the proceedings will be considered proper. 339 71. Petition and its signers. There is less difficulty in determining the proper form and aver- ments of a petition for the .removal of a county seat than in ascertaining the right to sign. The law usually limits such right to "qualified" or "legal voters," 337 "residents" or "resident electors." 338 "property owners" 339 or "householders," and pre- scribes as the requisite number "one-third," 340 "one-half," "two- thirds," "a number greater than the remonstrants," 341 or some other proportion. 342 In counting the signers to the petition, of the petitioners was sufficient, the sss Ayres v. Moan, 34 Neb. 210. precise language being immaterial. 339 Crafford v. Warwick County sss in re Dallas Boundary Line, 10 Sup'rs, 87 Va. 110, 12 S. E. 147. Kulp (Pa.) 64; Ayres v. Moan, 34 The term "person" as used in the Neb. 210. statute, "upon the application of per- sae Mode v. Beasley, 143 Ind. 306. sons paying one-third of the taxes 33- Loomis v. Bailey, 45 Iowa, 400; on real estate," includes corpora- Mode v. Beasley, 143 Ind. 306; Wil- tions paying taxes on real estate as son v. Bartlett, 7 Idaho, 271, 62 Pac. well as natural persons. 416; State v. Eggleston, 34 Kan. s*o Butler v. Mills, 61 Ark. 477; 714; State v. Polk County Sup'rs, Loomis v. Bailey, 45 Iowa, 400. 88 Wis. 355. s*i Loomis v. Bailey, 45 Iowa, 400. Crews v. Coffman, 36 Neb. 824. 342 Mode v. Beasley, 143 Ind. 306; Where objection is made to a peti- State v. Stock, 38 Kan. 154, 16 Pac. tion on the ground that some of the 106; State v. Phillips County Com'rs, signers are minors, other names are 26 Kan. 419; State v. Butler County fictitious, and still others signed un- Com'rs, 31 Kan. 460; State v. Eg- der improper influences, it is the gleston, 34 Kan. 714. "Three-fifths duty of the board to set a time for of the legal electors." Crews v. Coff- the hearing of these objections. man, 36 Neb. 824. CORPORATE LIFE; EXISTENCE. 73 names appearing upon both the petition for and the remonstrance to the change of county seat, or those whose names have been procured by bribery or the offer of a bonus, or signers expressing a desire to withdraw from the petition, should be deducted in order to ascertain whether the legal number have signed. 343 The designation of the residence of signers by the use of ditto marks has been held sufficient. 3 " 72. Signers' right of withdrawal. That a qualified resident property owner has signed a petition asking for an election looking to the removal of a county seat does not bar him from subsequently withdrawing his name. The act of signing is optional. 345 Such withdrawal should be made, however, before action upon the petition by the proper authori- ties. 346 73. Petition for removal; its filing. Notice. The filing of a petition showing on its face the required num- ber of qualified signers is sufficient to give the commissioners authority to act upon the question of removal 347 by making an official order for an election to be held in the manner and time provided by law, at which those entitled shall vote upon the ques- tion submitted. In order to insure its validity, notice must be given of the election for the length of time before its date and 3*3 Jamison v. Louisa County County, 32 Tex. 17; Worsham v. Sup'rs, 47 Iowa, 388; Duffees v. Richards, 46 Tex. 441. Sherman, 48 Iowa, 287; Ayres T. Doolittle v. Cabell County Ct., 28 Moan, 34 Neb. 210; State v. ^gles- W. Va. 159. When a petition as pre- ton, 34 Kan. 714. scribed by law is presented to the s** Wilson v. Bartlett, 7 Idaho, 271, county court duly verified by affida- 62 Pac. 416. vit and signed by the requisite num- 3*5 Slingerland v. Norton, 59 Minn, ber of legal voters of the county to 351; State v. Geib, 66 Minn. 266; permit it to be filed and have the State v. Crow Wing County Com'rs, order made as prayed for, the court 66 Minn. 519. has no discretion to refuse the filing 346 state v. Nemaha County of such petition or the making of Com'rs, 10 Neb. 32; La Londe v. the necessary order requested. It Barren County Sup'rs, 80 Wis. 380; becomes then an absolute and min- State v. Polk County Sup'rs, 88 Wis. isterial duty imposed upon the coun- 355. ty court, the performance of which 347 State v. Lien, 9 S. D. 297, 68 can be compelled by mandamus. N. W. 748; McClelland v. Shelby 74 NAME AND BOUNDARIES. 117 in the manner required by the provisions of the statute. Legal notice is necessary to the legality of subsequent steps. Notice to interested parties is an essential element to the validity of pro- ceedings whatever their nature. The statute may provide the form of this notice 348 and designate the manner of its publication or service 3 * 9 in the case of special proceedings looking to the removal of a county seat. Or if the election is held pursuant to general election statutes, the forms and the modes prescribed by them must be strictly followed. 350 The technical provisions of the law govern. The precise time for the giving of notice is dis- cretionary with the commissioners where the margin of time is sufficient. 351 When commissioners have power to pass upon the question of removal, the same rules apply, regarding the giving of notice prior to action upon the petition. 352 74. Official action. In proceedings for the removal of a county seat, the next step is an order by the proper tribunal calling an election. It is need- less to say that such an order depends for its validity on all pre- ceding acts. In many cases, where not otherwise provided by law, the courts have held that the ordering of an election is not a discretionary matter, but imperative upon the filing of the proper petition. The authority to make such order, however, must exist. 353 The performance of this duty can be enforced by mandamus. 354 It seems that the number of elections held may not be limited so long as they successively result in a defeat of 3*8 Attorney General v. Iron Coun- W. 539; State v. Langlie, 5 N. D. ty Canvassers, 64 Mich. 607, 31 N. 594, 67 N. W. 958. W. 539; Attorney General v. Lake 351 Lake County Com'rs v. State, County Sup'rs, 33 Mich. 289; Peck 24 Fla. 263, 4 So. 795; Doan v. Lo- v. Berrien County Sup'rs, 102 Mich, gan County Com'rs, 2 Idaho, 781, 26 346; People v. Hamilton County Pac. 167. Com'rs, 3 Neb. 244; Whitaker v. Dil- 352 state v. Scott County Com'rs, lard, 81 Tex. 359. 42 Minn. 284; State v. Butler, 81 34Dishon v. Smith, 10 Iowa, 212; Minn. 103, 83 N. W. 483. State v. Sherman County Com'rs, 39 ssa Brown v. State, 44 Kan. 291, 24 Kan. 293, 18 Pac. 179; State v. Scott Pac. 345. County Com'rs, 43 Minn. 322; Welch 354 Wells v. Ragsdale, 102 Ga. 53, v. Wetzel County Ct., 29 W. Va. 63, 29 S. E. 165; Jackson County Com'rs 1 S. E. 337. v. State, 147 Ind. 476, 46 N. E. 908; aso Attorney General v. Iron Coun- Slingerland v. Norton, 59 Minn. 351; ty Canvassers, 64 Mich. 607, 31 N. State v. Garrett, 76 Mo. App. 295; 118 CORPORATE LIFE; EXISTENCE. 75 the attempt to remove the county seat. 355 Some authorities hold that after the order for the election is made 'its validity cannot be contested on the ground that a less number than required by statute signed the petition or application. 356 75. Time and manner of election. The provisions of the statute or constitution with regard to the time and manner of holding an election must be strictly followed or it may be considered invalid. This is true whether these par- ticulars are specified in the law or by the commissioners acting thereunder. 357 The election when held must be at the place, on the day, and within the hours designated. 358 Attempts at bribery 359 or intimidation, 360 or fraudulent acts by the officers of election, have each been held sufficient to render it void. It is the imperative duty of the inspectors or officers in charge not only to refrain from doing these acts but to prevent others. 361 What constitutes bribery or when is a bonus offered of such a char- acter as to be considered a bribe, are questions often raised, and in some cases the dividing line between an illegal attempt to influence voters and a proper offer of public advantage becomes doubtful and difficult to distinguish. 362 The offer by individuals or localities to construct county buildings is not usually consid- ered the offer of a bribe so as to invalidate an election at which the change is made. 363 Scarbrough v. Eubank, 93 Tex. 106; Sup'rs, 11 Iowa, 552; Mather v. Con- Rayner v. Forbes (Tex. Civ. App.) verse, 12 Iowa, 352. 52 S. W. 568; La Londe v. Barren 359 Rice v. Smith, 9 Iowa, 570; County Sup'rs, 80 Wis. 380. Sweatt v. Faville, 23 Iowa, 321; 355Atherton v. San Mateo County State v. Malo, 42 Kan. 54, 120; fol- Sup'rs, 48 Cal. 157. lowed in State v. Dillman, 42 Kan. see Clarke County Com'rs v. State, 96; State v. Fulton, 42 Kan. 164; 61 Ind. 75; Baker v. Louisa County State v. Sullivan, 44 Kan. 43. Sup'rs, 40 Iowa, 226; Bennett v. sso state v. Kearny County Com'rs, Hetherington, 41 Iowa, 142; Currie 42 Kan. 739. v. Paulson, 43 Minn. 411; State v. sei state v. Malo, 42 Kan. 54, 120; Nelson, 21 Neb. 572; State v. Goo- followed in State v. Dillman, 42 win, 69 Tex. 55; Scarbrough v. Eu- Kan. 96. bank, 93 Tex. 106. 362 Berry v. Hull, 6 N. M. 643. 357 Gossard v. Vaught, 10 Kan. 162; sea Neal v. Shinn, 49 Ark. 227, 4 State v. Washoe County, 6 Nev. 104. S. W. 771; Douglass v. Baker Coun- sss state v. Baker County Com'rs, ty Com'rs, 23 Fla. 419; Thompson 22 Fla. 29; Cole v. Jackson County v. Mercer County Sup'rs, 40 111. 379. g 75 NAME AND BOUNDARIES. In Douglass v. Baker County Com'rs, cited supra, the court said: ""We do not think the offer of McClenny to build a court house at Macclenny, if the voters would locate the county site there, and his performance of the offer, invalidates the* election. * * * The authorities recognize such offers of public conveii- ..ence as legitimate in such contests. They cannot be regarded as corrupt agencies or as influencing corrupt voting. The locality as to which such offers are made presents itself in the contest as possessing the improvements or facilities covered by the offer, and where these improvements are made in accordance with the offer, there is no deception or fraud. It is unlike the case of a candi- date for office who proposes to the electors to take for his services if elected, less than the legal salary, and undertakes thereby to overcome the honest objection of a voter on account of deficiencies believed to exist in him as a proper person for the office. The latter case may involve the integrity of the government and the unfitness of officials, while the former does not, but only offers to supply an actual public convenience." The failure on the part of election inspectors to take the required oath does not neces- sarily invalidate the election or the votes cast. 364 In Michigan it is held that where the question of removal is before the electors Dishon v. Smith, 10 Iowa, 212. the county, by the location, or by a The court said: "We do not think change of location. And this can- the giving facilities for the public not be bribery. And it may be convenience to the whole county, doubted whether such an act can such as furnishing a building for become bribery when the offer is to the courts and offices, and thus re- the whole county, and upon a mat- lieving the county from a burden of ter of county interest only. In a expense, amounts to bribery. Nor case like the present, there is no would the giving property, though duty upon the county from which not of that specific character, but yet it or its citizens may be induced to adapted to reducing the expense of swerve. They may adopt which a change. If the people of a town place they see fit, and it is offering desire a county seat located at such additional inducements only in fa- place, there is no wrong and no cor- vor of one, to offer as above men- ruption in their offering and giv- tioned." Attorney General v. Lake ing facilities to produce that result. County Sup'rs, 33 Mich. 289; Wells Either in buildings and offices direct, v. Taylor, 5 Mont. 202, 3 Pac. 255; for the use of the public, or in prop- State v. Purdy, 36 Wis. 225. See, erty or money to procure the facili- also, 15 L. R. A. 501. ties, they may offer to take away or 364 state v. Baker County Com'rs, to lessen the pecuniary burden 22 Fla. 29. which would come upon that public, 120 CORPORATE LIFE; EXISTENCE. 77 it is not necessary to have separate ballots reading "for" and "against" the proposition, but a single ballot with both theso words upon it and a space, within which the voter can designate his choice, is sufficient. 365 76. Qualifications of voters. The legislature has the right to determine' the qualifications of voters at an election for the removal of a county seat, and some of these have already been suggested in section 71 discussing qual- ifications of signers to the petition for removal. The law usually limits the right of signing the petition to those who can vote thereafter at the election. Various phrases are used, as "quali- fied electors," "residents," "qualified voters." 366 77. Votes necessary to a removal. The continual reference to the absolute power of the legislature to determine all the questions looking to the organization, gov- ernment, and administration, of the affairs of public corporations, may seem unnecessary, but in order to understand the questions discussed from time to time this absolute power must be kept constantly in mind. The only limitations upon the legislature are constitutional provisions, if such exist, otherwise the legisla- ture, as being the law-making power of the sovereign, is free to act. It has therefore the right to determine not only the eligi- bility of voters but also the number of votes necessary to effect the removal of a county seat, and the phrases which we find in the decisions are repetitions of statutory or constitutional words which control. The existence of a constitutional provision that no county seat shall be changed "without the consent of a major- ity of the qualified voters of the county" does not prevent the legislature from passing a law providing that a larger vote shall be requisite to such change. 367 Some of the phrases used are 365 Peck v. Berrien County Sup'rs, 367 st. Joseph Tp. v. Rogers, 83 102 Mich. 346. U. S. (16 Wall.) 644; McCrary, Elec- 366 state v. Crook, 126 Ala. 600, tions, 183 et seq.; Vance v. Aus- 28 So. 745; Saunders v. Erwin, 49 tell, 45 Ark. 400; Hawkins v. Carroll Ark. 376, 5 S. W. 703; Eagle County County Sup'rs, 50 Miss. 735; State Com'rs v. People, 26 Colo. 297, 57 v. Renick, 37 Mo. 272; Louisville & Pac. 1080; State v. Stock, 38 Kan. N. R. Co. v. Davidson County Ct, 154, 16 Pac. 106; Hall v. Marshall, 33 Tenn. (1 Sneed) 692; Cocke v. 80 Ky. 552. Gooch, 52 Tenn. (5 Heisk.) 294; 77 NAME AND BOUNDARIES. 121 "majority of the qualified voters of the county," "majority vote," "majority of the electors," 368 "two-thirds of all the legal votes cast," 369 "plurality of votes cast," 370 "fifty-five per cent," 371 or "three-fifths." 372 Bouldin v. Lockhart, 69 Tenn. (1 Lea) 195. ses Blackshear v. Turner, 53 Ark. 533; Brown v. State, 44 Kan. 291; Alexander v. People, 7 Colo. 155; People v. Wiant, 48 111. 263; State v. Grace, 20 Or. 154; Adkins v. Lien, 10 S. D. 436, 73 N. W. 909; State v. Porter, 13 S. D. 126; Groves v. Grant County Ct, 42 W. Va. 587. Alley v. Denson, 8 Tex. 297. To effect the removal of a county seat, a majority only of all the votes cast is required, not a majority of all the qualified electors at such election. Worsham v. Richards, 46 Tex. 441; Ex parte Towles, 48 Tex. 413. Taylor v. Taylor, 10 Minn. . 107 (Gil. 81). The court in this case construing Minn. Const, art. 11, 1, "and all laws changing county lines in counties already organized or for removing county seats shall, before taking effect, be submitted to the electors of the county or counties to be affected thereby at the next gen- eral election after the passage there- of and be adopted by a majority of such electors," said, "The plaintiff claims that this section requires an absolute majority of those qualified to vote in the county at the time of the election. This construction is perhaps in accordance with the let- ter of the constitution, but it leads to such practical inconvenience, hardship, and absurdity, we cannot believe it to be in accordance with the spirit and meaning of that in- strument. It will be observed that the returns of the canvassing offi- cers would not be even prima facie evidence of the result of such elec- tion, for such returns could only show the numbers voting and the result of the vote. In every case it would be necessary, if this construc- tion is correct, to show by legal evi- dence the actual number of persons legally qualified to vote in the coun- ty at the time of such election, and we are unable to see how this could be determined except by a suit or proceeding in a court qualified to decide authoritatively and finally such questions. The difficulty of making such proof in many cases would be so great as to make it im- practicable." See, also, as sustain- ing this rule, Vance v. Austell, 45 Ark. 400; People v. Warfield, 20 111. 159; Bayard v. Klinge, 16 Minn. 249 (Gil. 221); Everett v. Smith, 22 Minn. 53; State v. Sutterfield, 54 Mo. 391. But see Braden v. Stumph, 84 Tenn. (16 Lea) 581, which holds that there must be an active con- currence of the qualified voters of a county, not a passive acquiescence, and, therefore, the required propor- tion of the qualified electors must actually vote in favor of the re- moval. 369 People v. Grand County Com'rs, 7 Colo. 190; Eagle County Com'ra v. People, 26 Colo. 297, 57 Pac. 1080; Wells v. Ragsdale, 102 Ga. 53; Hogg v. Baker, 17 Ky. L. R. 577, 31 S. W. 726; State v. Sutterfield, 54 Mo. 391; State v. Langlie, 5 N. D. 594, 67 N. W. 958; Stuart v. Bair, 67 Tenn. (8 Baxt.) 141; Bouldin v. Lockhart, 69 122 CORPORATE LIFE; EXISTENCE. 78. Canvass and return of votes. It generally becomes the duty of the commissioners, after the election has been held for the removal of a county seat, to meet, canvass the returns, and declare the result of the election. 373 This duty is a continuing one. When one set of election officers have been prevented by injunction, or other reason, from declaring the result as to certain precincts, it then becomes the duty of their successors on the dissolution of the injunction, to canvass and return those votes. 374 If the intent of the voter is clear from the ballot cast, although it may not be as definite as desired, this is sufficient to warrant the counting of the ballot. 375 The canvass- Tenn. (1 Lea) 195; Caruthers r. State, 67 Tex. 132; State v. Alcorn, 78 Tex. 387. 370 State v. Padgett, 19 Fla. 518. A constitutional provision which prescribes that "a plurality of votes given at an election by the people shall constitute a choice when not otherwise provided by this Consti- tution" was probably not intended to cover any other cases than elec- tion of officers; "and it is reasonable to suppose that in the choice of a place which would be most conven- ient for the people to transact their county business the wishes of a majority of the voters who felt an interest in the matter should be con- sulted, rather than that a small minority of the whole, in a contest between half a dozen or more locali- ties, should prevail." 371 Smith v. Renville County Com'rs, 64 Minn. 16. All ballots cast, unintelligible as well as other- wise, must be considered in ascer- taining the required percentage. 372 state v. Roper, 46 Neb. 724; Peck v. Berrien County Sup'rs, 102 Mich. 346. Davis v. Brown, 46 W. Va. 716, and cases cited. This case also holds that where the act requires for re- location three-fifths of all the votes cast at such election upon the ques- tion, the relocation is carried, though the votes cast on this par- ticular proposition are less than three-fifths of the votes cast upon other matters. 373 Herrick v. Carpenter, 54 Iowa, 349. In Pinkerton v. Staninger, 101 Mich. 273, 59 N. W. 611, the deter- mination of the supervisors in can- vassing and declaring the vote in removal proceedings is held conclu- sive, the law providing for no ap- peal. State v. Nerland, 7 S. C. (7 Rich.) 241; State v. Hicks (Tenn. Ch. App.) 52 S. W. 691; Ex parte Towles, 48 Tex. 413. Brown v. Randolph County Ct., 45 W. Va. 827, 32 S. E. 165. Under the statutes the county court has au- thority to canvass and announce the result of an election for relocation of county seat. State v. Fetter, 12 Wis. 566, construing Wis. Gen. Laws 1860, c. 110. 374 state v. Kearny County Com'rs, 42 Kan. 739. Davis v. Police Jury of Bossier Parish, 42 La. Ann. 968. This case also discusses effect upon official action of an injunction prop- erly served. Ewing v. Duncan, 81 Tex. 230. 375 Blackshear v. Turner, 53 Ark. g 79 NAME AND BOUNDARIES. 123 ing board must meet as a collective body and perform their duties, including the declaration of the result, in their official capacity, 376 which is usually considered conclusive in the absence of fraud. 377 Properly identified duplicate returns of votes from election precincts where the originals have been lost or destroyed can be used. 378 Provisions of the statute concerning the manner of making returns when mandatory must be strictly followed, otherwise, when considered discretionary or directory in their character, 379 a substantial compliance with the law is sufficient. 79. Contests. The result of an election held to determine the relocation of a county seat may be contested either apon jurisdictional grounds or questions pertaining to the manner and time of the election or the canvass and return of votes. It is impossible to state a general rule applying to contests. The provisions of the law relating to all of the proceedings may differ in each state. They are construed strictly and technically. Different remedies may be provided by the different states for the correction of errors. The two favorite remedies are mandamus 380 and injunction, 381 though others are used. 382 The remedial statutes of each state, 533; Whitaker v. Dillard, 81 Tex. sso Terr. v. Mohave County Sup'rs 359. See, also, People v. Grand (Ariz.) 12 Pac. 730; State v. Ham- County Com'rs, 7 Colo. 190, 2 Pac. ilton County Com'rs, 35 Kan. 640; 912. State v. Stearns, 11 Neb. 104; Mc- 376 Cole v. Jackson County Sup'rs, Whirter v. Brainard, 5 Or. 426; 11 Iowa, 552: State v. Harwood, 36 State v. Porter, 15 S. D. 387, 89 N. Kan. 236; State v. Judge Second Ju- W. 1012; Poteet v. Cabell County dicial Dist. Ct, 43 La. Ann. 125, 9 Com'rs, 30 W. Va. 58, 3 S. E. 97. So. 348. ssi Mitchell v. Lasseter, 114 Ga. 377 Hipp v. Board Charlevoix Coun- 275, 40 S. E. 287; Doan v. Logan ty Sup'rs, 62 Mich. 456. See State County Com'rs, 2 Idaho, 781, 26 Pac. v. Whitney, 12 Wash. 420, holding a 167; Du Page County Sup'rs v. canvassing board not estopped to Jenks, 65 111. 275; Todd v. Rustad, deny their authority to canvass re- 43 Minn. 500. turns. Heffner v. Snohomish Coun- Caruthers v. Harnett, 67 Tex. 127, ty Com'rs, 16 Wash. 273. 2 S. W. 523. A court of equity has 378 state v. Kearny County Com'rs, no jurisdiction to determine ques- 42 Kan. 739. tions raised on contest. 379 Welch v. Wetzel County Ct., 29 Rickey v. Williams, 8 Wash. 479. W. Va. 63, 1 S. E. 337; Heffner v. ssa Willeford v. State, 43 Ark. 62; Snohomish County Com'rs, 16 Wash. Herrick v. Carpenter, 54 Iowa, 349; 273. Mode v. Beasley, 143 Ind. 306; State 124 CORPORATE LIFE; EXISTENCE. SO however, are construed liberally, which in a contest gives a cer- tain degree of advantage in the use of a remedy. The required contest papers must show affirmatively upon their face the error desired to be corrected, and that if true such result must neces- sarily follow. 383 In judicial proceedings contesting the result of an election removing a county seat, ordinary rules of practice as to the introduction of evidence apply ; 384 and an elector of the county is held to have sufficient interest to entitle him to con- test such election on the ground of the unconstitutionality of the law authorizing it. 385 If on appeal the error assigned be found harmless, the proceedings will not be held void. 386 80. Authority of commissioners. Statements have been made in the preceding paragraphs as to the legal nature or character of the authority of commissioners appointed or designated by the legislature to consider and pass upon the proceedings necessary in the removal of a county seat. It is usually considered that their action, upon the sufficiency of preliminary papers presented to them, is conclusive in the absence of fraud. 387 They are not deemed, in the eye of the law, judi- cial bodies proper, though some cases hold them to be quasi judi- cial. They are vested with discretionary powers in all matters looking to the carrying out of statutory provisions not manda- v. Ravalli County Com'rs, 21 Mont, of an elector, see Berry v. Hull, 6 469, 54 Pac. 939; Remington v. Hig- N. M. 643, 30 Pac. 936; Rayner v. gins, 6 S. D. 313, 60 N. W. 73; Ex Forbes (Tex. Civ. App.) 52 S. W. parte Towles, 48 Tex. 413. 568. See contra, however, Thomas sss Wilson v. Bartlett, 7 Idaho, 271, v. Franklin, 42 Neb. 310. 62 Pac. 416. The court say: "The sse Mode v. Beasley, 143 Ind. 306. affidavit of the contestant must show SST Herrick v. Carpenter, 54 Iowa, that the list of names that he de- 349; 'Luce v. Fensler, 85 Iowa, 596, 52 sires to contest, if stricken from the N. W. 517; Walton v. Greenwood, 60 petition, would reduce the number Me. 356; People v. Benzie County of names on the petition to less than Com'rs, 34 Mich. 211. the number required by law; and if State v. Ravalli County Com'rs, it does not do that the trial court 21 Mont. 469, 54 Pac. 939. The ought to deny his contest." court held here that in so acting 384 Peters v. Morey, 34 Neb. 82. they exercised judicial functions and sss Adams v. Smith, 6 Dak. 94; a writ of review could be granted. Sebering v. Bastedo, 48 Neb. 358, 67 Ellis v. Karl, 7 Neb. 381; Williams N. W. 148. One elector in his own v. Boynton, 71 Hun, 309. See this name not entitled to contest county case for effect of act ratifying action seat election. As affecting the right of board of supervisors. 81 NAME AND BOUNDARIES. 125 tory in their nature. As to those, a strict performance is re- quired. Where subordinate courts are given the power to con- sider and determine the result of any one step in the removal of a county seat, the rules of law controlling such judicial organiza- tion will apply. 388 The time and place of their meeting, unless designated by law, are usually considered within their discre- tion, 389 and except in the case of a judicial body the usual rules of law as to the introduction of evidence do not apply. It is customary, and has been held imperative in some instances, to keep a record of their proceedings, which should recite all the necessary jurisdictional facts, including the authority under which they proceed. 390 The petition for a submission of the question of removal to the voters of a county, it has been held in Iowa, can only be considered by the board of supervisors at a regular not an adjourned meeting. 391 81. Declaration of the result and its effect. When the officer or body designated by law as having author- ity declares, in an order or finding, the result of the election held, and names the county seat, it becomes such by operation of law from the date of this order; 392 and governmental duties, acts and powers, of whatever character, can then only be valid when exercised at and promulgated from such county seat by the pub- lic quasi corporation. 393 These duties and powers should be thus exercised even when there are proceedings pending contest- ing the result of the election changing a county seat. 394 sss state v. Alcorn, 78 Tex. 387; State v. Harwood, 36 Kan. 236; Ewing v. Duncan, 81 Tex. 230; Whit- People v. Cook, 14 Barb. (N. Y.) 290; aker v. Dillard, 81 Tex. 359; Scar- Clark v. Crane, 5 Mich. 154. brough v. Eubank, 93 Tex. 106. 390 Douglass v. Baker County ssg Edwards v. Hall, 30 Ark. 31. Com'rs, 23 Fla. 419; Buck v. Fitz- In this case the court also said: "It gerald, 21 Mont. 482, 54 Pac. 942; may be that the location is an inju- Rousey v. Wood, 57 Mo. App. 650. dicious one, such as a majority of 301 Ellis v. Harrison County Sup'rs, the taxpayers and voters of the 40 Iowa, 301. county do not approve. If such un- 392 Hamilton v. Tucker County fortunately should be the case, Ct., 38 W. Va. 71; Minear v. Tucker whilst it is to be regretted that in- County Ct., 39 W. Va. 627. jury (if any) is the result of the 293 McNair v. Williams, 28 Ark. election of incompetent or dishonest 200; Williams v. Reutzel, 60 Ark. commissioners, their acts being in 155. accordance with law and the power 394 Maxey v. Mack, 30 Ark. 472. conferred, must be submitted to." CHAPTER III. LEGISLATIVE POWER OVER PUBLIC CORPORATIONS AND ITS LIMITATIONS. 82. In general. 83. Legislative control over public funds. 84. Power of the legislature over public revenues. 85. Legislative control over corporate boundaries. 86. Over municipal boundaries. 87. Legislative power over public property. 88. Over corporate contracts. 89. Legislative control over trust property held by public corporations. 90. The power of the legislature to compel the payment of debts. 91. Retention of jurisdiction. 92. Constitutional limitations on legislative power. 93. Limitations on the passage of what is termed "special legislation." 94. Constitutionality of laws classifying public corporations. 95. Other constitutional objections. 96. The impairment or destruction of vested rights as a limitation. 97. Control over the corporation in its private capacity. 82. In general. A public corporation is organized primarily to act as an agent of the sovereign in the performance of governmental duties and the administration of public affairs. A private corporation is created under authority of law by a group or association of in- dividuals for the purpose, primarily, of advancing their personal interests. The organization of all corporations, private as well as public, is an advantage to the state and results, in the case of a public corporation, directly in a benefit ; in the case of a private corporation indirectly. The basis of the continued existence of a public corporation is the will of the sovereign ; of the private cor- poration, the contract between itself and the state. As between the state and the public corporation or the members comprising it, there exists no contract relation. This difference in purpose of organization and authority for corporate life leads, as can be in- 82 LEGISLATIVE POWER. 127 ferred, to a fundamental and far-reaching difference in the power of the sovereign over them. 1 In considering the question there must also be kept in mind the distinctions already suggested between the different grades of public corporations. We have public corporations as a generic term, including municipal corporations proper and public quasi corporations, ignoring the cases holding that the state itself may be considered a corporation. As a fundamental principle of law this is not true. The sovereign cannot be considered a corpora- tion except as a matter of convenience for some purposes. Referring to definitions already given of municipal corpora- tions proper and public quasi corporations, it will be remembered that a public quasi corporation is that form of organization used for the exercising of governmental powers over territory less thickly settled than the territory usually included within the lim- its of a municipal corporation proper. The municipal corporation proper includes cities, towns (not the township organization) and villages, or congested centers of population. The wants and needs of the two classes differ essentially, and as agencies of the government they can each best perform their functions in a dif- ferent manner. The property of public corporations acquired through the levy and collection of taxes or by grant and devise for public purposes can only be devoted to such uses. Public corporations of all grades may assume the character of a private corporation and acquire property in that character or as an individual. Their rights in the acquisition, holding and dis- posal of this property, acquired in their capacity of private cor- porations, are the same as those pertaining to other private per- sons. The legislature cannot exercise over these the same degree iLaramie County Com'rs v. Al- Denton v. Jackson, 2 Johns. Ch. bany County Com'rs, 92 U. S. 307; (N. Y.) 320; Sill v. Village of Corn- State v. City of Mobile, 24 Ala. 701; ing, 15 N. Y. 297; People v. Draper, Willimantic School Soc. v. First 15 N. Y. 532; McKim v. Odom, 3 School Soc. in Windham, 14 Conn. Bland (Md.) 407; Inhabitants of 457; Hartford Bridge Co. v. Town Ashby v. Wellington, 25 Mass. (8 of East Hartford, 16 Conn. 172; Pick.) 524; City of Baltimore v. State v. City of Savannah, R. M. State, 15 Md. 376; Inhabitants of Charlt. (Ga.) 250; Union Baptist Hampshire v. Inhabitants of Frank- Soc. v. Town of Candia, 2 N. H. 20; lin, 16 Mass. 76; Town of Mont- Town of North Hempstead v. Town pelier v. Town of East Montpelier, of Hempstead, 2 Wend. (N. Y.) 109; 29 Vt. 12. 128 LEGISLATIVE POWER. 82 of control which it ordinarily exercises over the public corpora- tion and its public property. 2 To state concisely the rule of control: A public corporation, in its capacity as a public corporation, is absolutely under the control and at the mercy of the sovereign, subject only to con- stitutional provisions and the fundamental law that property contract, and vested rights of third parties dealing with it, cannot be impaired or destroyed. 3 Acting as a private corporation, ei- 2 People v. Wren, 5 111. (4 Scam.) 701; People v. Burr, 13 Cal. 343; 273; State v. County of Dorsey, 28 Churchill v. Walker, 68 Ga. 681; Ark. 378; County of Richland v. Crook v. People, 106 111. 237; Town County of Lawrence, 12 111. 1; Rob- of Cicero v. City of Chicago, 182 111. ertson v. City of Rockford, 21 111. 301; Morford v. Unger, 8 Iowa, 82; 451; Town of Freeport v. Stephen- Boyd v. Chambers, 78 Ky. 140; Lay- son County Sup'rs, 41 111. 495; Peo- ton v. City of New Orleans, 12 La. pie v. Cook County Com'rs, 176 111. Ann. 515; Pumphrey v. City of Bal- 576; Sloan v. State, 8 Blackf. (Ind.) timore, 47 Md. 145; Prince v. Crock- 361; Guilder v. Town of Dayton, 22 er, 166 Mass. 347; Weymouth & B. Minn. 366; State v. McFadden, 23 Fire Dist. v. Norfolk County Minn. 40; City of St. Louis v. Rus- Com'rs, 108 Mass. 142; People v. sell, 9 Mo. 507; State v. Swift, 11 Common Council of Detroit, 28 Nev. 128; In re Farnum's Petition, Mich. 228; City of St. Louis v. 51 N. H. 376; City of Paterson v. Sheilds, 52 Mo. 351; Opinion on Tp. Society for Establishing Useful Organization Law, 55 Mo. 295; State Manufactures, 24 N. J. Law (4 v. Holden, 19 Neb. 249; Berlin v. Zab.) 385; Corning v. Greene, 23 Gortiam, 34 N. H. 266; Fish v. Barb. (N. Y.) 33; Town of Marietta Branin, 23 N. J. Law (3 Zab.) 484; v. Fearing, 4 Ohio, 427; Lusher v. Morris v. People, 3 Denio (N. Y.) Scites, 4 W. Va. 11. 381; People v. Morris, 13 Wend. (N. s See elaborate notes in 1 L. R. A. Y.) 325; People v. Pinckney, 32 N. 757, 48 L. R. A. 465, and also cases Y. 377. cited generally in this section. City of Philadelphia v. Fox, 64 Terrett v. Taylor, 9 Cranch (U. Pa. 169. "It is merely an agency, S.) 43. "In respect also, to public instituted by the sovereign for the corporations which exist only for purpose of carrying out in detail public purposes, such as counties, the objects of government, essen- towns, cities, etc., the legislature tially a revocable agency, having no may, under proper limitations, have vested right to any of its powers a right to change, modify, enlarge or franchises, the charter or act of or restrain them, securing, how- erection being in no sense a con- ever, the property for tha uses of tract with the state, and therefore those for whom and at whose ex- fully subject to the control of the pense it was originally purchased." legislature, who may enlarge or Sinton v. Carter County. 23 Fed. diminish its territorial extent or 535; State v. City of Mobile, 24 Ala. its functions, may change or modify 82 LEGISLATIVE POWER. 129 ther in the acquirement of property or the exercise of certain powers, the public corporation, so far as legislative control is con- cerned, stands on an equal basis with a private corporation or an individual. 4 A municipal corporation proper more frequently acts as and assumes this character of a private corporation. its internal arrangement, or destroy its very existence with the mere breath of arbitrary discretion. Sic volo, sic jubeo, that is all the sov- ereign authority need say." State v. Frost, 103 Tenn. 685; Graham v. City of Greenville, 67 Tex. 62; Atkins v. Town of Ran- dolph, 31 Vt. 226. The author of Andrews' American Law attacks with much vigor and feeling the principle stated in the text and especially as applied to municipal corporations proper. These, he claims (pp. 538, 539), "do not de- rive their existence from the leg- islature and are above and beyond the power of the legislature to de- stroy. * * * It may readily be admitted that the administration of governmental powers which the legislature have a right to impose upon its citizens may be imposed upon the inhabitants of any local- ity without their consent and that such a power may be withdrawn at will; but the proposition that our local municipal organizations townships, counties and cities, ex- ist at the behest of the legislature only, and only for so long as the legislature sees fit is a proposition finding no support in any decision where the point has been involved." See, also, People v. Hurlbut, 24 Mich. 44; People v. Draper, 15 N. Y. 532, dissenting opinion; People v. Albertson, 55 N. Y. 50. Rathbone v. Wirth, 150 N. Y. 459. "If not expressly recognized, it is still to be understood that all these instruments are framed with its present existence and anticipated continuance in view. * * * The principle is one which it takes but little reflection to convince the mind of being fundamental in our governmental system, and as con- tributing strength to the national life, in its educational and forma- tive effect upon the citizen. It means that in the local or political subdivisions of the state the people of the locality shall administer their own local affairs to the ex- tent that that right is not restricted by some constitutional provision. * * * The theory of the consti- tution is that the several counties, cities, towns and villages are, of right, entitled to choose whom they will have to rule over them; and that this right cannot be taken from them, and the electors and inhabitants disfranchised, by an act of the legislature, or of any or all the departments of the state gov- ernment combined." * City of Louisville v. University of Louisville, 54 Ky. (15 B. Mon.) 642. See, also, New Orleans, M. & C. R. Co. T. City of New Orleans, 26 La. Ann. 478, where it is said that a municipal corporation "is an agency to regulate and administer the internal concerns of a locality in matters peculiar to the place in- corporated and not common to the state or people at large; but duties and functions may be and are con- ferred and imposed, not local in their nature. It possesses two class- Abb. Corp. 9. 130 LEGISLATIVE POWER. 82 Without discussing at present the rights of the public as a pri- vate corporation, it can be said that public corporations, as gov- ernmental agents, so far as the exercise of their governmental pow- ers are concerned, their corporate existence, boundaries, funds, revenues, property and contract rights, are subject to the will of the state, which may modify their franchises, increase or diminish their corporate powers, amend their charters, enlarge or reduce their privileges or annul their corporate existence, as, in its judg- ment, the general good requires, and irrespective of consent or objection on the part of the inhabitants of the territory affected, except so far as it is restrained by provisions in the constitution or fundamental law. 5 The limitations usually found in state con- stitutions are those which prohibit special legislation; laws not having "a uniform operation throughout the state,'.' or relating to the "business," the "affairs" or "internal affairs" of the cor- poration. It follows as a corollary that whatever the state di- rectly or indirectly can originally do, it may, if there is no con- stitutional obstacle, subsequently ratify, except in criminal mat- ters, and if action is taken ratifying a past act of a public cor- poration such action will be deemed the equivalent of an original grant of power, operating back to the date of the act by the doc- trine of relation and making legal such action. 6 es of powers and two classes of rights public and private. In all that relates to one class, it is merely the agent of the state and subject to its control; in the other it is the agent of the inhabitants of the place ~-the corporators maintains the character and relations of individ- uals and is not subject to the abso- lute control of the legislature, its creator. Among this latter class is the right to acquire, hold and dis- pose of property; to sue and be sued." s Girard v. City of Philadelphia, 74 U. S. (7 Wall.) 1; Barnes v. District of Columbia, 91 U. S. 540; Town of Mt. Pleasant v. Beckwith, 100 U. S. 514; State v. Jennings, 27 Ark. 419; Eagle v. Beard, 33 Ark. 497; Under- bill v. Trustees of City of Sonora, 17 Cal. 172; City of San Francisco v. Canavan, 42 Cal. 541; Fragley v. Phelan, 126 Cal. 383; Town of Val- verde v. ShattUck, 19 Colo. 104, 34 Pac. 947; People v. City of Chicago, 51 111. 17; City of Clinton v. Cedar Rapids & M. R. R. Co., 24 Iowa, 455; Hooper v. Emery, 14 Me. 375; Town of Hagerstown v. Sehner, 37 Md. 180; State v. Linn County Ct, 44 Mo. 504; City of St. Louis v. Sheilds, 52 Mo. 351; Van Horn v. State, 46 Neb. 62; Rader v. Southeasterly Road Dist. of Union, 36 N. J. Law, 273; Jersey City v. Jersey City & B. R. Co., 20 N. J. Eq. (5 C. E. Green) 360; In re Clinton St. in Doylestown, 2 Brewst. (Pa.) 599; Harriss v. Wright, 121 N. C. 172; Al- 83 LEGISLATIVE POWER. 131 83. Legislative control over public funds. The funds of a public corporation, acquired in its capacity as such, are raised by the imposition of taxes on taxable interests within its jurisdiction. In this country the basis of the legal im- position of taxes is the use of the proceeds for public purposes. The legislature therefore has the right to regulate and control either the original levy and collection of taxes, in whatever form, by a public corporation, or to dispose of funds thus acquired 7 len v. Reed, 10 Okl. 105, 60 Pac. 782, 63 Pac. 867. e Los Angeles City Water Co. v. City of Los Angeles, 88 Fed. 720; City of Oakland v. Oakland Water- Front Co., 118 Cal. 160; Kohler v. Town of Guttenberg, 38 N. J. Law, 419. ~ Home Ins. Co. v. City Council of Augusta, 93 U. S. 116; City of New Orleans v. Clark, 95 U. S. 644. Pennie v. Reis, 132 U. S. 464. "The direction of the state that the fund should be one for the benefit of the police officer or his representative under certain conditions was subject to change or revocation at any time at the will of the legislature; there was no contract on the part of the state that its disposition should al- ways continue as originally pro- vided." People v. Williams, 8 Cal. 97; Peo- ple v. San Luis Obispo County Sup'rs, 50 Cal. 561; People v. 'Lynch, 51 Cal. 15; Pike County Com'rs v. State, 11 111. 202. Gutzweller v. People, 14 111. 142. The court here say: "So, too, it was for the legislature to determine who should issue licenses to sell strong liquors, and to specify wheth- er the money thus raised should be devoted to the support 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 spe- cified the objects to which the money should be applied, than if it had been put into the 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 au- thority to do with the other. Trus- tees of Schools v. Tatman, 13 111. 27, and notes. * * * 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 sub- ordinate governmental agencies to grant licenses for the sale of liquor; and that thenceforth the sale of ar- dent spirits in less quantities than one quart should be absolutely pro- hibited. By this law the power is as much taken from the city of Al- ton, as if she had been expressly 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." People v. Power, 25 111. 187. The court say upon this point, "The whole state has an interest in the 132 LEGISLATIVE POWER. 83 without the consent of the people within its limits, so long as they are applied to public uses and purposes. 8 The public funds of a public corporation are not private property. Another limitation upon the legislative right to dispose of funds other than the one suggested is that those raised through taxation of taxable inter- ests within a certain district cannot be used for the benefit and advantage of others. 9 In other words, the use to which public funds can be applied by the legislature is local as well as public, and a fund raised by special taxation upon certain interests for a special public purpose, it has been held, cannot be applied to an- other. 10 revenue of a county, and for the public good, the legislature must have the power to direct its appli- cation. The power conferred upon a county to raise a revenue by tax- ation is a political power and its application, when collected, must necessarily be within the control of the legislature for political pur- poses." Florer v. State, 133 Ind. 453, 32 N. E. 829; City of Indianapolis v. Indianapolis Home for Friendless Women, 50 Ind. 215; State v. Mor- row, 26 Mo. 131; Spaulding v. An- dover, 54 N. H. 38; Bank of Rome v. Village of Rome, 18 N. Y. 38; People v. Devlin, 33 N. Y. 269; People v. Ingersoll, 58 N. Y. 1; People v. Fields, 58 N. Y. 491; Love v. Schenck, 34 N. C. (12 Ired.) 304; Governor v. McEwen, 24 Tenn. (5 Humph.) 241. The state may exempt property from municipal taxation. See, also, City of Richmond v. Richmond & D. R. Co., 21 Grat. (Va.) 604. s Sinton v. Ashbury, 41 Cal. 525; Weismer v. Village of Douglas, 64 N. Y. 91; Allen v. Inhabitants of Jay, 60 Me. 124; Feldman & Co. v. Charleston City Council, 23 S. C. 57. Sibley v. Mobile, 3 Woods, 535, Fed. Cas. No. 12,829. State v. St. Louis County Ct., 34 Mo. 546. This case also holds that an act directing the application of the funds of a county to a particular purpose is not unconstitutional as impairing the obligation of a con- tract or involving the destruction of a vested right. The legislature, so it is said, cannot deprive a public corporation of its property, but it has the full power to direct the mode in which this property shall be used for the benefit of the community. Greene v. Niagara County, 55 App. Div. 475, 67 N. Y. Supp. 291; Cage v. Hogg, 20 Tenn. (1 Humph.) 48. !o Dartmouth College v. Wood- ward, 4 Wheat. (U. S.) 518. "It may also be admitted," says Justice Story, "that corporations for mere public government, such as towns, cities and counties, may, in many respects, be subject to legislative control but it will hardly be con- tended that even in respect to such corporations the legislative power is so transcendent that it may at its will take away the private property of the corporation or change the uses of its private funds acquired under the public faith. Can the leg- islature confiscate to its own use the private funds which a municipal corporation holds under its charter 84 LEGISLATIVE POWER. 133 84. Power of the legislature over public revenues. The legislature, as the law-making arm of the sovereign, in the absence of constitutional restrictions, has the power to provide and regulate the manner in and the purpose for which the rev- enues of a public corporation may be raised 11 and employed. The sovereign has the inherent power of levying taxes for the purpose of raising revenue for its uses, which are presumably public. As it therefore possesses in the first instance the sole power, it has the right to direct the manner in which its mere agencies shall raise funds, either for their special and local public wants 12 or for general purposes, 13 and this right of the legislature without any default or consent of the corporators?" Terrett v. Taylor, 9 Cranch (U. S.) 43; Conlin v. City and County of San Francisco Sup'rs, 114 Cal. 404; Board of Levee Com'rs v. Hemming- way, 66 Miss. 289, 6 So. 235. State v. Haben, 22 Wis. 660. "Was it competent," it was inquired in this case, "for the legislature, without the assent of the city or its inhabitants, thus to divert the funds raised and in the hands of the treas- urer for the purpose of erecting a suitable high school building, and to declare that they should be appro- priated, not for that purpose, but for the purpose of purchasing a site for a state normal school in the city? We are clearly of the opinion that it was not. It is well settled as to all matters pertaining to vested rights of property, whether real or personal, and to the obligation of contracts, that municipal corpora- tions are as much within the pro- tection of the federal constitution as private individuals are. The leg- islature cannot divest a municipal corporation of its property without the consent of its inhabitants, nor impair the obligation of a contract entered into with or in behalf of such corporation." Milwaukee Coun- ty Sup'rs v. Pabst, 45 Wis. 311. 11 Oilman v. Sheboygan, 2 Black (U. S.) 510; Myers v. English, 9 Cal. 341; Schneck v. City of Jeffer- sonville, 152 Ind. 204. An act to legalize city bonds not held special legislation within constitutional pro- vision. City of Baltimore v. State, 15 Md. 376; Town of Hagerstown v. Sehner, 37 Md. 180; Detroit Citizens' St. R. Co. v. Common Council of De- troit, 125 Mich. 673, 85 N. W. 96, 86 N. W. 809; People v. Commissioners of Taxes of N. Y. City, 47 N. Y. 501; Brownell v. Town of Greenwich, 114 N. Y. 518; Duke v. County of Wil- liamsburg, 21 S. C. 414; Wingate v. Ketner, 8 Wash. 94; City of Guthrie v. Ter., 1 Okl. 188. 12 Willard v. Presbury, 81 U. S. (14 Wall.) 676; Meri wether v. Gar- rett, 102 U. S. 472; Gibbons v. Mo- bile & G. N. R. Co., 36 Ala. 410; Sin- ton v. Ashbury, 41 Cal. 525; Burnes v. City of Atchison, 2 Kan. 454; Al- len v. Inhabitants of Jay, 60 Me. 124. A private enterprise held not public purpose. Smith v. Stephan, 66 Md. 381; Skinner's Ex'r v. Button, 33 Mo. 244. 13 City of New Orleans v. Turpin, 13 La. Ann. 56; State v. Mason, 153 134 LEGISLATIVE POWER. 84 goes not only to the original grant of power, but also to its modi- fication, 14 change or repeal, 15 and the mode of collection. 10 The revenues of a public corporation are at the control of the legis- lature both in regard to their levy and disposal, 17 subject to con- stitutional restrictions and inherent limitations, 18 but not to re- vision by the courts. 19 Further considering this power of the legislature there are cases holding, based upon sound reasons, that a public corporation can- not be compelled to undertake a public improvement purely local, not public or governmental in its character, to be paid for ulti- mately by compulsory taxation, 20 without the consent of the peo- Mo. 23, citing Ray County v. Bent- ley, 49 Mo. 236; State v. Field, 119 Mo. 593; State v. Owsley, 122 Mo. 68; State v. Board of Education of St. Louis, 141 Mo. 45. i* Oilman v. City of Sheboygan, 2 Black (U. S.) 510. is County of Galloway v. Foster, 93 U. S. 567. County of Scotland v. Thomas, 94 U. S. 682. Authority already grant- ed, it is here held, cannot be taken away. State v. Sullivan County, 51 Mo. 522. See, also, State v. Greene Coun- ty, 54 Mo. 540; Slack v. Maysville & L. R. Co., 52 Ky. (13 B. Mon.) 1. i State v. Carson, 6 Wash. 250, 33 Pac. 428. State v. Hundhausen, 26 Wis. 432. "It being a matter of legislative dis- cretion, how far, in chartering a city, it will make use of the city officers for the collection of the reve- nues within the municipality, it is of course within its discretion to withdraw such powers once confer- red, and restore them to the county officers, within whose jurisdiction, the city as well as all the towns in the county is located." IT Conlin v. City & County of San Francisco Sup're, 114 Cal. 404. "As- suming that the legislature may ap- propriate the funds in the state treasury for any public purpose, it does not follow that it has the same power over municipal funds. While the funds in a municipal treasury are in a certain sense public, they are so only for the limited public which has contributed them, but not for the entire state, and the power of the legislature over these funds is not co-extensive with its power of the state funds, but is limited by certain provisions of the constitu- tion." See, also, Cooley, Taxation, p. 700; Cooley, Const. Lim. (6th Ed.) 283 et seq. is People v. Ingersoll, 58 N. Y. 1. is Parks v. Soldiers' & Sailors' Home Com'rs, 22 Colo. 86, 43 Pac. 542. 20 In Cooley, Taxation (2d Ed.) p. 688 et seq., the author states in discussing the nature of municipal corporations, "They may be en- dowed with peculiar powers and ca- pacities for the benefit and conven- ience of their own citizens, and in the exercise of which they seem not to differ in any substantial degree from the private corporations which the state charters. They have thus their public or political character, in which they exercise a part of the sovereign power of the state for gov- 84 LEGISLATIVE POWER. 135 pie paying snch taxes. 21 The same principle has also been applied in the granting of aid to railroad or other quasi public corpora- tions, and it has been held in several cases that municipal corpo- ernmental purposes, and they have their private character in which, for the benefit or convenience of their own citizens, they exercise pow- ers not of a governmental nature, and in which the state at large has only an incidental concern, as it may have with the action of private cor- porations. It may not be possible to draw the exact line between the two, but provisions for local conven- iences for the citizens, like water, light, public grounds for recreation, and the like, are manifestly matters which are not provided for by mu- nicipal corporations in their politi- cal or governmental capacity, but in that quasi private capacity in which they act for the benefit of their corporators exclusively. In their public, political capacity, they have no discretion but to act as the state which has created them shall, within constitutional limits, com- mand, and the good government of the state requires that the power should at all times be ample to com- pel obedience, and that it should be capable of being promptly and effi- ciently exercised. In the capacity in which they act for the benefit of their corporators merely, there would seem to be no sufficient reason for a power in the state to make them move and act at its will, any more than in the case of any private cor- poration." This statement Judge Cooley makes the basis of the prin- ciple stated in the text applying it to the exercise of the power of tax- ation by the state, citing many cases. People v. City of Chicago, 51 111. 17; Wider v. City of East St. Louis, 55 111. 133; Williams v. Town of Rob- erts, 88 111. 11; Hanson v. Vernon, 27 Iowa, 28; inhabitants of Hampshire County v. Franklin County, 16 Mass. 76. Park Com'rs v. Detroit Common Council, 28 Mich. 229. In the able opinion by Justice Cooley it was said: "The proposition which as- serts the amplitude of legislative control over municipal corporations, when confined, as it should be, to such corporations as agencies of the state in its government, is entirely sound. They are not created exclu- sively for that purpose, but have other objects and purposes peculiar- ly local, and in which the state at large, except in conferring the power and regulating its exercise, is legal- ly no more concerned than it is in the individual and private concerns of its several citizens. Indeed it would be easy to show that it is not from the standpoint of state in- terest, but from that of local inter- est, that the necessity of incorporat- ing cities and villages most dis- tinctly appears. State duties of a local nature can for the most part be very well performed through the usual township and county organ- izations. It is because, where an urban population is collected, many things are necessary for their com- fort and protection which are not needed in the country, that the state is then called upon to confer larger powers and to make the lo- cality a subordinate commonwealth. It is a fundamental principle in this state, recognized and perpetu- ated by express provision of the 136 LEGISLATIVE POWER. 84 rations cannot be compelled against their consent, even by act of the legislature, to give such aid where the only means of meeting the obligation is by levying local taxes. 22 Public revenues may be raised through the imposition of general or special taxes, license fees 23 or charges for the use of water and light, 24 and these subjects will be considered in detail later. Constitution, that the people of ev- ery hamlet, town and city of the State are entitled to the benefits of local self-government. But author- ity in the legislature to determine what shall be the extent of the capacity in a city to acquire and hold property is not equivalent to, and does not contain within itself authority to deprive the city of property actually acquired by legis- lative permission. As to property it thus holds for its own private purposes, a city is to be regarded as a constituent in State govern- ment, and is entitled to the like pro- tection in its property rights as any natural person who is also a con- stituent. The right of the state is a right of regulation, not of appro- priation. It cannot be deprived of such property without due process of law. And when a local conven- ience or need is to be supplied in which the people of the State at large, or in any portion thereof outside the city limits, are not con- cerned, the State can no more by process of taxation take from tho individual citizens the money to purchase it, than they could, if, it had been procured, appropriate it to the state use." State v. Tappan, 29 Wis. 664. But see Kimball v. Mobile County, 3 Woods, 555, Fed. Cas. No. 7,774; Hagar v. Reclamation Dist, 111 U. S. 701; Mobile County Com'rs v. State, 45 Ala. 399; Hagar v. Yolo County Sup'rs, 47 Cal. 222; Talbot County Com'rs v. Queen Anne's Coun- ty Com'rs, 50 Md. 245, and State v. St. Louis County, 34 Mo. 546; Peo- ple v. Flagg, 46 N. Y. 401; Williams v. Town of Duanesburgh, 66 N. Y. 129. 21 People v. Salomon, 51 111. 37; Slack v. Maysville & L. R. Co., 52 Ky. (13 B. Mon.) 1; Allison v. Cork- er, 67 N. J. Law, 596, 52 Atl. 362; People v. Batchellor, 53 N. Y. 128; Weismer v. Village of Douglas, 64 N. Y. 91. 22 Township of Elmwood v. Marcy, 92 U. S. 289; Hessler v. Drainage Com'rs, 53 111. 105; Madison County v. People, 58 111. 456; Sleight v. Peo- ple, 74 111. 47; People v. State Treas- urer, 23 Mich. 499; People v. Batch- ellor, 53 N. Y. 128, a leading case citing and reviewing many authori- ties. But see Slack v. Maysville & L. R. Co., 52 Ky. (13 B. Mon.) 1, where the court held that the Legis- lature had power to impose local taxation to carry out the construc- tion of a purely local enterprise. 23 State v. Union Cent. L. Ins. Co. (Idaho) 67 Pac. 647; In re Martin, 62 Kan. 638, 64 Pac. 43; State v. Dwyer, 21 Minn. 512; State v. Ma- son, 153 Mo. 23; Trustees of Aber- deen Academy v. Town of Aber- deen 21 Miss. (13 Smedes & M.) 645. 2*Agua Pura Co. of Las Vegas v. City of Las Vegas, 10 N. M. 6, 60 Pac. 208; Bellingham Bay Imp. Co. v. City of New Whatcom, 20 Wash. 53. 85 LEGISLATIVE POWER. 137 85. Legislative control over corporate boundaries. The boundaries of public corporations as agents of the sover- eign come within the doctrine of absolute control by the legisla- ture. Originally possessing the right to create these agencies or subagencies, it can exercise the lesser power of changing or alter- ing their boundaries. 25 The right of the people within the districts affected to consent to such change or alteration may be given as a matter of favor. 26 The sovereign may cede a portion of terri- tory without the consent of the people affected, and upon such cession it will pass from its jurisdiction. 27 Ministerial acts in con- 25 Girard v. City of Philadelphia, 74 U. S. (7 Wall.) 1; Laramie Coun- ty Com'rs v. Albany County Com'rs, 92 U. S. 307; Manchester v. Com., 139 U. S. 240; Kelly v. Tate, 43 Ga. 535; Sabin v. Curtis, 3 Idaho, 662, 32 Pac. 1130; Monford v. linger, 8 Iowa, 82; In re Division of Howard County, 15 Kan. 194; Chandler v. City of Boston, 112 Mass. 200; Opin- ion of the Supreme Court, 60 Mass. (6 Cush.) 578; Roos v. State, 6 Minn. 428 (Gil. 291) ; Woods v. Hen- ry, 55 Mo. 566; Eskridge v. Mc- Gruder, 45 Miss. 294; Portwood v. Montgomery County Sup'rs, 52 Miss. 523; Inhabitants of Gorham v. Inhabitants of Springfield, 21 Me. 59; Rumsey v. People, 19 N. Y. 41; Columbus Mills v. Williams, 33 N. C. (11 Ired.) 558; Dare County Com'rs v. Currituck County Com'rs, 95 N. C. 189. Schaffner v. Young, 10 N. D. 245. Change of boundaries in North Da- kota controlled by constitutional provision. Johns v. Davidson, 16 Pa. 512; Stuart v. Kirley, 12 S. D. 245. In Tennessee legislative action controlled by constitutional provi- sions. Gotcher v. Burrows, 28 Tenn. (9 Humph.) 585; Macon & Smith Counties v. Trousdale County, 61 Tenn. (2 Baxt.) 1; McMillan v. Han- nah, 106 Tenn. 689, 61 S. W. 1020; Washburn v. City of Oshkosh, 60 Wis. 453. See, also, sections on cor- porate boundaries and annexation or division of territory: Dillon, Mun. Corp. (4th Ed.) 183, "The funda- mental idea of a municipal corpora- tion proper, both in England and in this country, is to invest com- pact or dense populations with the power of local self-government. In- deed the necessity for such corpora- tions springs from the existence of centers or agglomerations of popu- lation having by reason of density and numbers, local or peculiar in- terests and wants not common to adjoining sparsely settled or agri- cultural regions. It is necessary to draw the line which defines the limits of the place and people to be incorporated; this is, with us, a leg- islative function." 26 Reynolds v. Holland, 35 Ark. 56; Taylor v. Taylor, 10 Minn. 107 (Gil. 81). Consent necessary under constitutional provision. Mills v. Williams, 33 N. C. (11 Ired.) 558. 27 Benson v. U. S., 146 U. S. 325. "It is contended by appellant's coun- sel that * * * jurisdiction passed to the general government only over such portions of the reserve as are actually used for military purposes and that the particular part of the 138 LEGISLATIVE POWER. 86 neetion with the change of boundaries in some states can be as- signed by the legislature to subordinate bodies or officials, and in such cases, the courts have held, there is no delegation of legisla- tive powers. 28 Where constitutional limitations exist, either as to population or the territorial extent of subordinate agencies of the state, it has been held that courts may take judicial notice of the fact that an act of the legislature will reduce certain territory below the constitutional limit. 28 86. Over municipal boundaries. The preceding section treated in a general way of legislative control over boundaries. In this section a few of the cases re- reserve on which the crime charged was committed was used solely for farming purposes. But in matters of that kind the courts follow the action of the political department of the government. * * * The character and purposes of its occu- pation having been officially and legally established by that branch of the government which has con- trol over such matters, it is not open to the courts on a question of jurisdiction to inquire what may be the actual uses to which any por- tion of the reserve is temporarily put." Citing Ft. Leavenworth R. Co. v. Lowe, 114 U. S. 525, and Chi- cago, R. I. & P. R. Co. v. McGlinn, 114 U. S. 542; McCracken v. Todd, 1 Kan. 148. 28 Kayser v. Trustees of Bremen, 16 Mo. 88; Osgood v. Clark, 26 N. H. 307; Allison v. Corker, 67 N. J. Law, 596, 52 Atl. 362; Blanchard v. Bissell, 11 Ohio St. 96; Devore's Appeal, 56 Pa. 163. But see People v. Town of Nevada, 6 Cal. 143; City of Galesburg v. Hawkinson, 75 111. 152. People v. Bennett, 29 Mich. 451. A Michigan statute passed in 1873 providing for the general incorpora- tion of villages within certain dis- tricts was held unconstitutional be- cause it permitted those petitioning for incorporation to decide upon the extent of territory to be incorporat- ed which was held a delegation of legislative powers in this respect to private citizens. Willett v. Bellville, 79 Tenn. (11 Lea) 1. Jasper County Com'rs v. Spitler, 13 Ind. 235. In this case under a constitutional provision which con- ferred upon the general assembly power to delegate to the county boards local administrative power, the court said: "Under this provi- sion the legislature seems to be plainly authorized to confer the power embraced in the act before us. In cases like the present the taking effect of the law is not the result of any action on the part of the commissioners; nor do they de- cide whether the act is or is not in force but simply whether it ap- plies to the case made by the peti- tion which the act prescribes. This is evidently not the exercise of dele- gated legislative power; but merely the application of the provisions of a general law to a given case local in its character." 29 Woods v. Henry, 55 Mo. 560. g 86 LEGISLATIVE POWER. f erring to and considering this control relative to the corporate boundaries of municipal corporations proper will be considered. The same general principles of law apply, and these, so far as the application of them in detail is concerned, have been discussed in the sections relating to corporate boundaries, their establish- ment and change. 30 The reason for the creation of a municipal corporation proper is the existence of a congested center of pop- ulation. The legislature having power to create a public corpo- ration has the right to determine the basis for the organization of municipal corporations, one of the classes of public corpora- tions, and this can be any determining factor it may consider a valid and expedient one 31 in the absence of constitutional restric- tions. Some states even hold that this is a discretionary matter with the legislature, uncontrolled by subsequent constitutional provisions. 32 A municipal corporation proper may have estab- lished by the legislature for its basis of existence a certain popu- lation within certain limits, 33 or the arbitrary organization of a minimum territory. 34 To put it concisely, the creation of a municipal corporation proper may be dependent either upon pop- ulation or geographical area. If there are constitutional provi- sions which limit the power of the legislature in these respects, such control. This power to establish or change corporate bound- aries is law-making in its nature and an attempted delegation of its exercise to the courts or a quasi judicial body or to executive officials will be held void, it being incapable of delegation. 35 Courts have no power to control or interfere with, in any way, so See 35 to 40, and 55 to 65. Mich. 123, 45 N. W. 964. See cases si City of Chicago v. Rumsey, 87 cited 13. 111. 348; Stoner v. Flournoy, 28 La. s* city of St. Louis v. Allen, 13 Ann. 850; People v. Bradley, 36 Mo. 400; Com. v. Blackley, 198 Pa. Mich. 447; Manly v. City of Raleigh, 372, 47 All. 1104; Perry v. State, 57 N. C. (4 Jones, Eq.) 370; Wil- 9 Wis. 19. See cases cited 14. Hams v. City of Nashville, 89 Tenn. ss city of Galesburg v. Hawkin- 487, 15 S. W. 364. son, 75 111. 152. In this case the 32 Mattox v. State, 115 Ga. 212, Court say: "The same power can- 41 S. E. 709; McCallie v. Town of not be either legislative or judicial, Chattanooga, 40 Tenn. (3 Head) as the legislature may incline to 317; Wade v. City of Richmond, 18 retain it, or surrender it to the Grat. (Va.) 583; Town of Milwau- judiciary. If the boundaires of mu- kee v. City of Milwaukee, 12 Wis. nicipal corporations can be altered 93. and changed by the legislature in its ss Smith v. City of Saginaw, 81 discretion, and the authorities are 140 LEGISLATIVE POWER. 87 the exercise of this discretionary law-making power by the legis- lature. 36 Where such action may change or affect the lines of legislative, judicial or other districts, if the jurisdiction and pow- ers of the altered districts remain the same it is usually held that such change will not be invalid. 37 Where there is a constitutional provision to the effect that a change of the boundary of a city or other local division of a state, when it would alter the boundary of an assembly district, cannot be made at any other time than the decennial enumeration of population, a change except at that time is invalid. 38 87. Legislative power over public property. The power of the legislature is full, ample and supreme over the property of the public corporation, acquired and held in its capacity as such and for public purposes. This property is usually acquired through the exercise of the power of taxation, a direct gift of the sovereign. The legislature has the power to provide means for its acquisition, its control and management, 39 and its final disposition. 40 The rule as to the disposal of prop- erty applies not only to an act giving present authority, but also all that way, then it is impossible re Contested Election of Law Judges, that the courts can be invested with 109 Pa. 337. such power." See authorities cited ss Kinne v. City of Syracuse, 2 note 28, 85. Abb. Dec. (N. Y.) 534. See, also, se stilz v. City of Indianapolis, People v. Holihan, 29 Mich. 116, and 55 Ind. 515; City of New Orleans v. People v. Bradley, 36 Mich. 447, con- Cazelar, 27 La. Ann. 156; Martin v. struing a Mich. Const, limitation on Dix, 52 Miss. 53. the right of the legislature to change 37 Howard v. McDiarmid, 26 Ark. municipal boundaries in such a man- 100; Sabin v. Curtis, 3 Idaho, 662, ner as to interfere with representa- 32 Pac. 1130; Galley v. Guichard, tive districts. 27 La. Ann. 396; State v. Williams, 39 Potter v. Collis, 19 App. Div. 29 La. Ann. 779; Lafayette F. Ins. 392, 46 N. Y. Supp. 471; McCollum Co. v. Remmers, 29 La. Ann. 419; v. Smith, 19 Tenn. (Meigs) 342, cit- Opinion of the Supreme Court, 33 ing Story, Confl. of Laws, 447. Me. 587; Opinion of the Supreme *o Inhabitants of North Yarmouth Court, 60 Mass. (6 Gush.) 578; Peo- v. Skillings, 45 Me. 133; Barton pie v. Bradley, 36 Mich. 447; Smith County v. Walser, 47 Mo. 189; Con- v. City of Saginaw, 81 Mich. 123, 45 solidated Ice Co. v. City of New N. W. 964; State v. Blasdel, 6 Nev. York, 53 App. Div. 260, 65 N. Y. 40; Farr v. City of Bayonne, 54 N. Supp. 912, but see this case to the J. Law, 125, 22 Alt. 1006. See In contra. 87 LEGISLATIVE POWER. 141 to one validating previous transfers by a public corporation. 41 The only limitations upon this power are those already stated and well-recognized, viz., the use of public revenues for public pur- poses, and the retention of local property and revenues for public local uses. If property has been acquired by a public corporation in its capacity as a private corporation, the control of the legisla- ture is limited by the general laws and rules applying to private property. 42 Such ownership of property may become a property, a contract or a vested right which the legislature cannot impair or destroy. A municipal corporation proper may possess two classes of powers and rights, public and private. In all its pri- vate relations it maintains the character of an individual. In its public capacity it is merely an agent of the state and subject to its control. The rules as laid down in the preceding paragraph apply to the real and personal property of a public corporation, 43 including streets and highways. 4 * 41 Payne v. Treadwell, 16 Cal. 220. 42 Grogan v. City of San Francis- co, 18 Cal. 590. Coyle v. Gray, 7 Houst. (Del.) 44. A system of waterworks acquired by a municipal corporation for the purpose of supplying its inhabitants with water was held not private property. Bradford v. Shine, 13 Fla. 393; City of Savannah v. Steamboat Co. of Ga., R. M. Charlt. (Ga.) 342; City of Clinton v. Cedar Rapids & M. R. R. Co., 24 Iowa, 455; City of Wellington v. Wellington Tp., 46 Kan. 213; New Orleans, M. & C. R. Co. v. City of New Orleans, 26 La. Ann. 478; Proprietors of Mt. Hope Cemetery v. City of Boston, 158 Mass. 509, 33 N. E. 695; People v. Common Council of Detroit, 28 Mich. 228; Benson v. City of New York, 10 Barb. (N. Y.) 245; People v. Por- ter, 26 Hun, 622; affirmed 90 N. Y. 68; Atkins v. Town of Randolph, 31 Vt. 226; Town of Milwaukee v. City of Milwaukee, 12 Wis. 93. 43 in Meriwether v. Garrett, 102 U. S. 472, in the dissenting opinion, Justice Strong said in part: "Its character as a municipal corporation does not affect the nature of its obligations to its creditors or its cestuis que trust or impair the rem- edies they would have if the city was a common debtor or trustee. While as a municipal corporation the city had public duties to per- form, yet, in contracting debts au- thorized by the law of its organ- ization, or in performing a private trust, it is regarded by the law as standing on the same footing as a private individual with the same rights and duties and with the same liabilities as attend such persons. Over its public duties, it may be ad- mitted, the legislature has plenary authority. Over its private obliga- tions it has not." Small v. Inhabitants of Danville, 51 Me. 359; State of. Wisconsin v. Torinus, 26 Minn. 1; Oliver v. City 142 LEGISLATIVE POWER. 87 This power of the legislature is sufficiently broad to enable it to grant to railroad companies the right to occupy the streets and highways of subordinate public corporations without securing of Worcester, 102 Mass. 489. See, also, 25 Am. Law Rev. 398, where the following is quoted from an opinion by Judge East discussing the character and nature of a mu- nicipal corporation: "The functions of a municipality are twofold; first, political, discretionary, legislative; secondly, ministerial. While acting within the sphere of the former they are exempt from liability inas- much as the corporation is a part of the government to that extent and its officers to the same extent are public officers and as such en- titled to the protection of this prin- ciple; but, within the sphere of the latter, they drop the badges of gov- ernmental officers and become, as it were, the representatives of a pri- vate corporation in the exercise of private functions. The distinction between those legislative powers which it holds for public purposes as a part of the government of the country and those private franchises which belong to it as a creature of the law is well taken." Bailey v. City of New York, 3 Hill (N. Y.) 531; Lindsey v. State, 27 Tex. Civ. App. 540, 66 S. W. 332; Single v. Marathon County Sup'rs, 38 Wis. 363. See, also, Cooley, Taxation (2d Ed.) p. 688. Dillon, Mun. Corp. (4th Ed.) 66. "In its governmental or public char- acter, the corporation is made, by the state, one of its instruments, or the local depositary of certain lim- ited and prescribed political powers, to be exercised for the public good on behalf of the state rather than for itself. In this respect it is as- similated, in its nature and func- tions, to a county corporation, which, as we have seen, is purely part of the governmental machinery of the sovereignty which creates it. Over all its civil, political, or government- al powers, the authority of the leg- islature is, in the nature of things, supreme and without limitation, un- less the limitation is found in the constitution of the particular state. But in its proprietary or private character, the theory is that the powers are supposed not to be con- ferred, primarily or chiefly, from considerations connected with the government of the state at large, but for the private advantage of the compact community which is incor- porated as a distinct legal person- ality or corporate individual; and as to such powers, and to property acquired thereunder, and contracts made with reference thereto, the corporation is to be regarded quo ad hoc as a private corporation, or at least not public in the sense that the power of the legislature over it or the rights represented by it, is omnipotent." New Orleans, M. & C. R. Co. v. City of New Orleans, 26 La. Ann. 478. See, also, cases cited 82 and 84. Note 26 Am. Law Rev. 520; City of Clinton v. Cedar Rapids & M. R. R. Co., 24 Iowa, 455; City of New Orleans v. Hopkins, 13 La. (0. S.) 326; Spaulding v. Nourse, 143 Mass. 490; Com. v. Plaisted, 148 Mass. 375; Prince v. Crocker, 166 Mass. 347; Dietrich v. Schremms, 117 Mich. 298, 75 N. W. 618; Guilder 88 LEGISLATIVE POWER. 143 their consent, on the theory that highways and streets are dedi- cated to a public use and the legislature as representing the com- munity or government at large has complete control over public property. 45 88. Over corporate contracts. Public corporations may, during their existence either as cor- porations de facto or de jure, enter into contract relations with third parties, and if these, at the time of their inception, are valid, the legislature cannot, although its powers are broad as to the control of public corporations in all respects, pass laws changing or repealing the powers of the corporation in such a manner as to impair the obligations of these contract rights or relations, protected by provisions of the Federal and state constitutions. 48 Laws in force at the time of the making of such contracts and which were their authority in whole or in part, enter into and form a part of the same. 47 Contracts enuring to the benefit of V. Town of Otsego, 20 Minn. 74 (Gil. 59); Wager v. Troy Union R. Co., 25 N. Y. 526; People v. Kerr, 27 N. Y. 188; People v. Flagg, 46 N. Y. 401; Fearing v. Irwin, 55 N. Y. 486; Simon v. Northup, 27 Or. 487; Irvin v. Turnpike Co., 2 Pen. & W. (Pa.) 466; Mercer v. Pittsburgh, Ft. W. & C. R. Co., 36 Pa. 99; Ford v. Chicago & N. W. R. Co., 14 Wis. 609. 45 See post, chapter IX, discuss- ing the control of public property. 46 Von Hoffman v. City of Quincy, 71 U. S. (4 Wall.) 535; City of Ga- lena v. Amy, 72 U. S. (5 Wall.) 705; Lee County v. Rogers, 74 U. S. (7 Wall.) 185; Broughton v. City of Pensacola, 93 U. S. 266; Wolff v. City of New Orleans, 103 U. S. 358; State v. Jennings, 27 Ark. 419; City of San Francisco v. Canavan, 42 Cal. 541; Columbia County Com'rs v. King, 13 Fla. 451; Boyd v. Cham- bers, 78 Ky. 140; City of St. Louis v. Sheilds, 52 Mo. 351; State Board of Education v. City of Aberdeen, 56 Miss. 518; Helena Consol. Water Co. v. Steele, 20 Mont. 1, 49 Pac. 382; Cleveland v. Board of Finance & Taxation, 38 N. J. Law, 259; Gab- ler v. City of Elizabeth, 42 N. J. Law, 79; Munday v. Assessors of Rahway, 43 N. J. Law, 338; Rader v. Township Committee of Union, 44 N. J. Law, 259; Tax Assessors of Rahway v. Munday, 44 N. J. Law, 395; Brooklyn Park Com'rs v. Arm- strong, 45 N. Y. 234; Brown v. City of New York, 63 N. Y. 239; Belo v. Forsythe County Com'rs, 76 N. C. 489; Bigler v. City of New York, 5 Abb. N. C. 51; Goodale v. Fennell, 27 Ohio St. 426; Western Sav. Fund Soc. v. City of Philadelphia, 31 Pa. 175; State v. City of Madison, 15 Wis. 30; State v. City of Milwaukee, 25 Wis. 122. *7 Rails County Ct. v. U. S., 105 U. S. 733; German Sav. Bank v. Franklin County, 128 U. S. 526; Co- lumbia County Com'rs v. King, 13 144 LEGISLATIVE POWER. 88 third parties or to the corporation itself, become property and vested rights, protected sacredly by all the power of the state, and which cannot be impaired or destroyed by subsequent legislation or even constitutional provision. 48 Particular powers of taxation granted to public corporations may become a part of such a con- tract, and subsequent legislation lessening or destroying such powers will be held unconstitutional as legislation impairing the obligation of a contract. 49 The principle applies to provisions for a sinking fund arid also to any property or security which at the time of legislation authorizing an issue of bonds was de- voted to their payment; such sinking fund or means of payment, it has been held, cannot be diverted to other uses nor such legis- lation repealed. 50 It has been held, how r ever, that creditors or Fla. 451; Terrett v. Taylor, 9 Cranch (U. S.) 43. In Van Hoffman v. City of Quincy, 71 U. S. (4 Wall.) 535, the court says: "It is also settled that the laws which subsist at the time and place of the making of a contract and where it is to be performed en- ter into and form a part of it as if they were expressly referred to or incorporated in its terms. This principle embraces alike those which affect its validity, construction, dis- charge and enforcement." *8 County of Moultrie v. Rocking- ham Ten-Cent Sav. Bank, 92 U. S. 631; State of Louisiana v. Police Jury of St. Martin's Parish, 111 U. S. 716; City of Detroit v. Detroit Citizens' St. R. Co., 184 U. S. 368; State of Minnesota v. Duluth & I. R. R. Co., 97 Fed. 353. In People v. State Auditors, 42 Mich. 422, a contract by the legislature for the publication of supreme court reports was held not binding on its success- ors. Cape May & S. L. R. Co. v. City of Cape May, 35 N. J. Eq. (8 Stew.) 419; Smith v. City of Appleton, 19 Wis. 468. But see City of St. Louis v. Sheilds, 52 Mo. 351. 49 State of Louisiana v. Pilsbury, 105 U. S. 278; State of Louisiana v. Police Jury of St. Martin's Parish, 111 U. S. 716; Town of Mobile v. Watson, 116 U. S. 289; Seibert v. Lewis, 122 U. S. 284; Sawyer v. Parish of Concordia, 12 Fed. 754; People v. Bond, 10 Cal. 563; Liqui- dators of City Debts v. Municipality No. 1, 6 La. Ann. 21; Morris v. State, 62 Tex. 728; State v. City of Mad- ison, 15 Wis. 30. 50 State of Louisiana v. City of New Orleans, 102 U. S. 203. "The obligation of a contract in the con- stitutional sense is the means pro- vided by law by which it can be enforced, by which the parties can be obliged to perform it. What- ever legislation lessens the efficacy of this means impairs the obligation. If it tend to postpone or retard the enforcement of the contract, the obli- gation of the latter is to that extent weakened." State of Louisiana v. Police Jury of St. Martin's Parish, 111 U. S. 716; Seibert v. Lewis, 122 U. S. 284. Provisions authorizing the levy and collection of a special tax to pay bonds are a part of the contract with the creditor and cannot be repealed 88 LEGISLATIVE POWER. those holding contract obligations have no vested right to a par- ticular form of remedy and the legislature may abolish or alter a remedy without impairing the contract obligation provided it supply one which is equally efficacious and available. 01 Where a remedy is limited or abolished, this will constitute an impair- ment of a contract obligation for, as has been said, "nothing is more important than the means of enforcement." 52 This protec- unless a remedy equally efficacious is substituted. Fazende v. City of Houston, 34 Fed. 95; Liquidators of City Debts v. Municipality No. 1, 6 La. Ann. 21. Munday v. Assessors of Rahway, 43 N. J. Law, 338. A statute was passed relating to the issue of writs of mandamus and supplementing certain authority for the issue of bonds by the city of Rahway, the effect of which was to deprive bond- holders of their immediate right to such writ. The statute was held unconstitutional and the court said: "The act would strip him of his priority and attempts what in Mar- tin v. Somerville Water-Power Co., 3 Wall. Jr. 206, Fed. Cas. No. 9,165, was decided to be beyond legislative power. It is as if the legislature enacted that no execution should is- sue to enforce a pre-existing judg- ment to the prejudice of the inter- ests of creditors whose claims were not yet due." People v. Common Council of Buf- falo, 140 N. Y. 300. Any law ma- terially abridging a remedy for the enforcement of a contract existing when it was made is an impairment of its obligation unless it provides a remedy equally adequate. Bas- sett v. City of El Paso, 88 Tex. 168, 30 S. W. 893; Terry v. Wisconsin M. & F. Ins. Co. Bank, 18 Wis. 87. si State of Louisiana v. City of New Orleans, 102 U. S. 203. In Na- tional Bank of Western Ark. v. Se- bastian County, 5 Dill. 414, Fed. Cas. No. 10,040, Judge Parker held that in reference to the obligation of contracts this provision of the Fed- eral Constitution "embraces those laws alike which affect its valid- ity, construction, discharge and en- forcement," and that "an act of a state legislature which provides that counties are no longer corporations that they cannot be sued is void as to obligations legally issued by such counties when the law of the state provided they could be sued, when set up against a party seek- ing a remedy upon the obligations of a county in a federal court, be- cause the state legislature cannot take away the right of a holder of such county obligations to sue in a federal court when such right is given him by the constitution and laws of the United States, and be- cause such a law impairs the obliga- tion of such contracts." But see Meriwether v. Garrett, 102 U. S. 472, and Thompson v. Wiley, 46 N. J. Law, 476, where the agencies were removed through which the courts could alone act in enforcing the rights of creditors. 52 Edwards v. Kearzey, 96 U. S. 595. The court in its opinion by Justice Swayne in defining the obli- gation of a contract say: "The ob- ligation of a contract includes ev- erything within its obligatory scope. Among these elements nothing is more important than the means of Abb. Corp. 10. 146 LEGISLATIVE POWER. 88 tion is not afforded, however, to the public corporation in its capacity as such. It is the personal property, contract or vested right of the individual which is protected. In discussing the subject of the charter of the corporation, one of the differences suggested between public and private corpora- tions was that the charter or grant of powers by the sovereign to public corporations did not partake of the nature of a contract as between the donor and donee. 63 The charter of a private cor- poration is considered a contract, construed and enforced as such. The charter, however, of a public corporation may contain, so it has been held in some instances, grants or gifts of power which partake of the nature of a contract and of which the sovereign cannot willfully or arbitrarily dispossess them. It is true that rights of this character are seldom granted, but it is none the less true that when granted the rule of law applies as applied to the grant or gift of a power to a private corporation. 6 * Con- tracts between sovereign states can only be entered into 55 and enforced in the manner provided in the constitution of the United States. Over such contracts the power of the legislature is nec- essarily limited, if possessed at all. The state may, by the passage of legislation, create a contract obligation which cannot be de- stroyed by subsequent legislation. 56 enforcement. This is the breath of County of Hampshire v. County of its vital existence. Without it, the Franklin, 16 Mass. 75; State v. contract, as such, in the view of Moores, 55 Neb. 480, 76 N. W. 175. the law, ceases to be, and falls into B5 Green v. Biddle, 8 Wheat (U. the class of those 'imperfect obliga- S.) 1. See, also, as to the construc- tions,' as they are termed, which de- tion of the compact between Ken- pend for their fulfillment upon the tucky and Virginia relating to "all will and conscience of those upon private rights and interests of lands whom they rest. The ideas of right within the district of Kentucky de- and remedy are inseparable. 'Want rived from the laws of Virginia of right and want of remedy are the prior to such separation," Hawkins thing.'" See, also, quotation from v. Barney's Lessee, 5 Pet. (U. S.) State of Louisiana v. City of New 457, and Fisher's Lessor v. Cockerell, Orleans, 102 U. S. 203, cited ante; 5 Pet. (U. S.) 248; Chesapeake & O. Gabler v. City of Elizabeth, 42 N. J. Canal Co. v. Ohio R. Co., 4 Gill & Law, 79. J. (Md.) 1; Brien v. Elliot, 2 Pen. 68 See 22. & W. (Pa.) 49; Hyde's Lessee v. 5* City of Richland v. County of Torrence, 2 Yeates (Pa.) 440. Lawrence, 12 111. 1; Bowdoinham v. ee Antoni v. Greenhow, 107 U. S. Richmond, 6 Me. (6 Greenl.) 112; 769. 90 LEGISLATIVE POWER. 147 89. Legislative control over trust property held by public cor- porations. The control of the legislature over property or contract rights of the public corporation includes not only property belonging to the corporation in its public capacity, but also to property which it holds as a trustee for the benefit of a cestui que trust. The only limitation upon the power of the legislature in such a case is that the purpose for which the property or its income is to be applied must not be changed. This principle was settled in a case involving the right of the city of Philadelphia to control, through a certain board, the property devised by Stephen Girard to it, as trustee, for the purpose of maintaining, upon the condi- tions set forth in the grant, Girard College, situated within the limits of the municipality. 87 The control over this trust property was affected indirectly through a change in municipal organiza- tion. 90. The power of the legislature to compel the payment of debts. Public corporations like individuals have certain character- istics, one of these being, unfortunately, too often possessed, the desire to avoid the payment of a moral or legal obligation. A corporation may have acquired property directly or indirectly, which it retains and of which it receives the full benefit ; it has been or is used by the corporation for its legitimate public pur- poses ; the people of the community in their collective and public capacity enjoy its use. The corporation, however, declines to pay those who have parted with it in good faith, the excuse for non- payment perhaps being inability to pay ; an alleged constitutional provision preventing the levy of taxes for such purpose, or, in many cases, the dishonest wish on the part of the inhabitants to avoid the assumption of burdens after having enjoyed the benefits of the transaction, the debt being perhaps the result of an im- 57 Girard v. City of Philadelphia, Mo. 543; Greenville v. Mason, 53 N. 74 U. S. (7 Wall.) 1; Trustees 111. H. 515; Sargent v. Cornish, 54 N. Industrial University v. Champaign H. 18; White v. Fuller, 39 Vt. 193; County Sup'rs, 76 111. 184; State v. Bass v. Fontleroy, 11 Tex. 698; Springfield Tp., 6 Ind. 83; North Town of Montpelier v. Town of East Yarmouth v. Skilling, 45 Me. 133; Montpelier, 27 Vt. 704; Id., 29 Vt. Chambers v. City of St. Louis, 29 12. 148 LEGISLATIVE POWER. 90 provident contract. Under these conditions it is clearly within the power of the legislature to compel a payment of legal and honest obligations by the public corporation in the manner which it may provide, 08 and to enforce obedience to the directions con- tained in its positive laws through proper process of the judicial branch of the sovereign power. The legislature can provide for the levy and collection of taxes with which to meet this obliga- tion. 69 The power of the sovereign through its law-making branch goes still further, so it has been held, even to the payment under compulsion of a debt or obligation owing by a public cor- poration which technically can be avoided but in favor of which there exist the strongest moral reasons. 60 It is also within the 8 City of Guthrie v. Ter., 1 Okl. 188, 31 Pac. 190; Jackson County Sup'rs v. La Crosse County Sup'rs, 13 Wis. 490; Sedgwick County Com'rs v. Bunker, 16 Kan. 498; Weister v. Hade, 52 Pa. 474; Guil- ford v. Chenango County Sup'rs, 13 N. Y. (3 Kern.) 143; Carter v. Cam- bridge, 104 Mass. 236; Brewster v. City of Syracuse, 19 N. Y. 116; City of New Orleans v. Clark, 95 U. S. 644; City of New York v. Tenth Nat. Bank, 111 N. Y. 446. e State of Louisiana v. U. S., 103 U. S. 289; New York L. Ins. Co. v. Cuyahoga County Com'rs, 106 Fed. 123; State v. Parkinson, 5 Nev. 17; Berrian v. City of New York, 27 N. Y. Super. Ct. (4 Rob.) 538. eo Sedgwick, St. Const. Law, 313, 314; United States v. Baltimore & O. R. Co., 84 U. S. (17 Wall.) 322. City of New Orleans v. Clark, 95 U. S. 644. "Assuming then, that the bonds were invalid, for the omis- sion stated, they still represented an equitable claim against the city. They were issued for work done in its interest, of a nature which the city required for the convenience of its citizens, and which its charter authorized. It was, therefore, com- petent for the legislature to inter- fere and impose the payment of the claim upon the city. The books are full of cases where claims, just in themselves, but which, from some irregularity or omission in the pro- ceedings by which they were creat- ed, could not be enforced in the courts of law, have been thus rec- ognized 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 example, services of the highest importance and benefit to a city may be rendered in de- fending it, perhaps, against illegal and extortionate demands; or mon- eys may be advanced in unexpect- ed emergencies to meet, possibly, the interest on its securities when its means have been suddenly cut off, without the previous legislative or municipal sanction required to give the parties rendering the services 90 LEGISLATIVE POWER. 149 power of the legislature, where there has been an alleged assump- tion of corporate powers under a misapprehension of authority, 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 require payment for the serv- ices, or a reimbursement of the moneys, and the raising of the nec- essary 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." United States v. Realty Co., 163 U. S. 427. "The term 'debts' in- cludes those debts or claims which rest upon a mere equitable or hon- orary obligation, and which would not be recoverable in a court of law if existing against an individual. The nation, speaking broadly, owes a 'debt' to an individual when his claim grows out of general prin- ciples of right and justice; when, in other words, it is based upon considerations of a moral or merely honorary nature, such as are bind- ing on the conscience or the honor of an individual, although the debt could obtain no recognition in a court of law." Guthrie Nat. Bank v. City of Guth- rie, 173 U. S. 528. "We regard the power of the territorial legislature to pass this act as indisputable. In United States v. Realty Co., 163 U. S. 427, 439, the power of Congress to recognize a moral obligation on the part of the nation and to pay claims which, while they are not of a legal character, are nevertheless meritorious and equitable in their nature, was affirmed. The territo- rial legislature at least had the same authority as that possessed by Con- gress to recognize claims of the na- ture described." The court further say: "It is not necessary to say in this case that the legislature had the power to donate the funds of the municipality for the purpose of charity alone. The facts show plain moral grounds for the act, a consid- ration existing in the benefits re- ceived and enjoyed by the city or by its predecessors from whom it took such benefits." New York L. Ins. Co. v. Cuya- hoga County Com'rs, 106 Fed. 123; People v. Burr, 13 Cal. 343; Creigh- ton v. City & County of San Fran- cisco Sup'rs, 42 Cal. 446; Carter v. Cambridge, 104 Mass. 236. Friend v. Gilbert, 108 Mass. 408. "The fact that the town was under no legal obligation to pay does not make it a gift without equivalent. It has been decided in several cases, that towns may vote money to in- demnify their agents who may in- cur a liability in the performance of their duties, though the towns were under no legal obligation to do so." People v. Onondaga Tp. Sup'rs, 16 Mich. 254; State v. Bruce, 50 Minn. 491. "But the distinction between valid and invalid legislation on this subject has been pointed out many times, and it is well settled that, if there rests upon the designated mu- nicipality any obligation or duty, moral or equitable (using these words in a large and popular sense) to pay the claim, then a legislative act requiring its payment is sup- ported as valid by the great weight of authority. Coles v. Washington County, 35 Minn. 124, 27 N. W. 497; 150 LEGISLATIVE POWER. 90 to compel the payment of debts contracted by a void organiza- tion after it has become legally incorporated. 61 In this connection it might be well to refer again to the power of the legislature as the law-making branch of the state to compel the creation of an obligation or the incurring of an indebtedness by public corporations. They are created as agencies of the sov- ereign to exercise on its behalf governmental functions and to administer public affairs to a greater or less degree under its direction. It seems to be within the province and power of the legislature to insist that public corporations, as governmental agents, shall properly perform those duties and functions which ordinarily devolve upon the government and which have for their State v. Foley, 30 Minn. 350, and cases cited. As the legislature pos- sesses the constitutional power to compel a municipal corporation, out of funds in its treasury, or by means of taxes imposed for that pur- pose, to meet and discharge a claim, which in good conscience it ought to pay, although no legal liability has previously existed, it simply re- mains for us to discover and de- termine whether there rested at any time upon the county, or upon the state, for that matter, a moral or equitable obligation or duty to re- fund the amounts paid by the re- lator." Steines v. Franklin Co., 48 Mo. 167; North Missouri R. Co. v. Ma- guire, 49 Mo. 490. Guilford v. Chenango County Sup'rs, 13 N. Y. (3 Kern.) 143. The court say: "The legislature is not confined in its appropriation of the public moneys, or of the sums to be raised by taxation, in favor of in- dividuals, to cases In which a legal demand exists against the state. It can thus recognize claims founded in equity and justice, in the largest sense of these terms." Brewster v. City of Syracuse, 19 N. Y. 116; People v. Green, 63 Barb. (N. Y.) 390; City of New York v. Tenth Nat. Bank, 111 N. Y. 446; O'Hara v. State, 112 N. Y. 146; City of Philadelphia v. Field, 58 Pa. 320; Burns v. Clarion County, 62 Pa. 422. But see People v. Lynch, 51 Cal. 15; Hoagland v. City of Sacramento, 52 Cal. 142. Mosher v. Independent School Dist. of Ackley, 44 Iowa, 122, hold- ing to the contrary, governed by con- stitutional limitation of indebted- ness, and Baldwin v. City of New York, 42 Barb. (N. Y.) 549; Id., 45 Barb. 359. The above cases hold- ing contrary to the rule stated in the text are based upon the proposi- tion which is unquestionably true that a public corporation cannot be compelled to pay a claim against it where no obligation either moral, legal or equitable exists. si Guthrie Nat. Bank v. City of Guthrie, 173 U. S. 528. But see Ex parte Wells, 21 Fla. 280, to the con- trary; Cooper v. Springer, 65 N. J. Law, 594, 48 Atl. 605; Coast Co. v. Borough of Spring Lake, 56 N. J. Eq. 615; City of Guthrie v. Ten, 1 Okl. 188. 92 LEGISLATIVE POWER. 151 purpose the protection of life, health, property, the maintenance of government, and the administration of public affairs ; nongov- ernmental purposes, not within the proper province of a govern- mental agent, the legislature cannot compel public corporations to accomplish or to perform. 62 The division between the obliga- tions which the legislature can compel a public corporation to assume and those which it cannot, can hardly be characterized by the use of the word "local," although to a certain extent this states the proper basis. To illustrate, the supreme court of the state of Michigan held that the legislature could not compel the people of the city of Detroit to create an indebtedness for the purpose of laying out and improving a public park within the limits of that city, such purpose being one, as it were, of an em- bellishment of the external appearance of the city. On the other hand it is quite clear that if the city of Detroit failed to provide a proper system of sewerage, it could be compelled to do this without the consent of the people, the construction and the main- tenance of a system of sewerage being highly essential to the proper preservation of the health of the people, a governmental function beyond doubt. 83 91. Retention of jurisdiction. The sovereign may, in the organization of public corporations, retain such control over criminal and other proceedings coming within their jurisdiction, as it may elect. 6 * 92. Constitutional limitations on legislative power. In preceding sections it has been suggested that the only lim- itations upon the power of the legislature to deal with public corporations as it may elect, are to be found in constitutional provisions or in inherent fundamental principles of equity. These 62 State v. Atkin, 64 Kan. 174, 67 Council of Detroit, 28 Mich. 228; Pac. 519; People v. City of Chi- People v. Flagg, 46 N. Y. 401; Bank cago, 51 111. 17; Harward v. St. of Rome v. Village of Rome, 18 N. Clair & M. Levee & Drainage Co., 51 Y. 38. 111. 130; People v. Common Council * United States v. Baum, 74 Fed. of Detroit, 28 Mich. 228. See, also, 43; United States v. Cornell, 2 Ma- 83 and 84, where many authorities son, 60, Fed. Gas. No. 14,867; United are cited and considered. States v. Thompson, 1 Sumn. 168, e Park Commission v. Common Fed. Cas. No. 16,492. 152 LEGISLATIVE POWER. 93 constitutional limitations upon legislation in regard to either the creation of public corporations or the management and control of their boundaries, revenues and property, are usually found in provisions prohibiting the passage of special acts; laws concern- ing the "business," the "affairs" or the "internal affairs" of public corporations ; laws not uniform in their operation through- out the state, or regulations directly determining the manner in which changes in the organic life of public corporations may be effected, and other provisions affecting the passage of legisla- tion. 65 93. Limitations on the passage of what is termed "special leg- islation." During the early legislative history of this country there existed no limitations of this character upon the power of the different state law-making bodies. Nearly all legislation was special in its nature. A particular emergency or condition was met or pro- vided for by the passage of a special act. It will be readily un- derstood that such a system led to great abuses. The powers of particular corporations or rights granted to persons depended not on what they deserved or should properly exercise, but upon the influences brought to bear upon the law-making body to grant them the powers and the privileges they desired. Not only did this system of passing laws lead to the granting of undeserved favors and powers to be exercised by improper and incompetent bodies, but it led to an uncertain, indefinite and un-uniform con- dition of legislation affecting all interests. The same conditions existed to a large extent in England under the system by which the crown, unrestrained, granted charters to public corporations, and which led there to the passage by parliament of the Munici- pal Corporations Act, 5 & 6 "Wm. IV, c. 76, to remedy the evils and abuses which existed as a result of the absence of limitations and regulations. Different states of the Union have adopted in their constitu- tions, or in amendments, limitations upon the right of legislatures to pass acts special in their nature or to meet a special condition or action. The wording of the constitutional provision in Min- es Stanly County Com'rs v. Coler.Cal. 46; State v. Cheetham, 21 Wash. 96 Fed. 284; People v. Coleman, 4437. 93 LEGISLATIVE POWER. 153 nesota is a good illustration of the form usually adopted, though many do not include the details there enumerated. 68 The particular subjects usually covered by constitutional pro- visions prohibiting the passage of special legislation affecting the creation or the life of public corporations, relate to their creation, the amendment or repeal of their charters, 67 the alteration or so Minn. Const, art. 4, 33: "In all cases when a general law can be made applicable no special law shall be enacted; and whether a general law could have been made applicable in any case is hereby declared a judicial question, and as such shall be judicially determined without re- gard to any legislative assertion on that subject. The legislature shall pass no local or special law regulat- ing the affairs of, or incorporating, erecting, or changing the lines of any county, city, village, township, ward or school district, or creating the offices, or prescribing the pow- ers and duties of the officers of, or fixing, or relating to the compensa- tion, salary or fees of the same, or the mode of election or appointment thereto; authorizing the laying out, opening, altering, vacating or main- taining roads, highways, streets or alleys; * * * locating or chan- ging county seats; regulating the management of public schools, the building or repairing of school houses, and the raising of money for such purposes; * * * creating corporations, or amending, renew- ing, extending or explaining the charters thereof; granting to any corporation, association or individ- ual any special or exclusive privi- lege, immunity or franchise what- ever, or authorizing public taxation for a private purpose. Provided, however, that the inhibitions of local or special laws in this section shall not be construed to prevent the pass- age of general laws on any of the subjects enumerated." See, also, Const, of Ark. art. XII, 3; Cal. art. XI, 6; Colo. art. XIV, 13; Idaho, art. XII, 1; Iowa, art. VIII, 1, Kan. art. XII, 5; Ky. 59; Mo. art. IX, 7; N. J. art. IV, 7, par. 11; N. D. art. VI; Ohio, art XIII, 6; S. D. art. X, 1; Tex. art. XI, 4, 5. This provision applies only in case of cities and towns hav- ing less than 10,000 inhabitants; Wash. Const, art. XI, 10; W. Va. Const, art. XI, 1; Wis. Amend. IV, 32 ; Wyo. Const, art. 13. A major- ity of the electors must consent to the incorporation of any district as a municipality. 67 See notes in 9. State v. Duval County Com'rs, 23 Fla, 483; City of Atchison v. Bartholow, 4 Kan. 124; State v. Capdevielle, 104 La. 561, 29 So. 215; City of Wyandotte v. Wood, 5 Kan. 603; State v. Leffingwell, 54 Mo. 458, where that provision of the Mo. Const, that corporations cannot be created by special act except for municipal purposes is fully consid- ered. The court holds that a cor- poration for "municipal purposes" must be one connected with a mu- nicipal corporation itself and organ- ized and created for the purpose of carrying out some of the objects for which such corporations are organ- ized. People v. Draper, 15 N. Y. 561. Atkinson v. Marietta & C. R. Co., 15 Ohio St. 21. "These provisions of the constitution are too explicit 154 LEGISLATIVE POWER. change of their boundaries, their mode of raising revenues, 68 and their expenditure of public moneys. 69 The power of the legislature to pass general laws under con- stitutional authority classifying public corporations and author- izing the exercise of different powers by the different classes is a subject of sufficient importance to be discussed in a succeeding section. 70 The constitutional provision in Minnesota to the effect that the question of whether a general law could have been made appli- cable in any case was a judicial question and to be "judicially determined" without regard to any legislative assertion on that subject is one not everywhere followed. 71 A general law has been defined as "a statute which relates to persons or things as a class is a general law, while a statute which relates to particu- lar persons or things of a class is special. ' ' 72 The mere arbitrary to admit of the least doubt that they were intended to disable the General Assembly from either cre- ating corporations, or conferring upon them corporate powers, by spe- cial acts of legislation. It was in- tended to correct an existing evil, and to inaugurate the policy of plac- ing all corporations of the same kind upon a perfect equality as to all future grants of power of mak- ing such laws applicable to all parts of the state, and thereby securing the vigilance and attention of its whole representation; and finally, of making all judicial constructions of their powers, or the restrictions imposed upon them, equally applica- ble to all corporations of the same class." State v. City of Cincinnati, 20 Ohio St. 18. But see State v. Denny, 118 Ind. 382, 21 N. E. 252, and City of Evansville v. State, 118 Ind. 426, 21 N. E. 267, discussing the right of the people in incorporated munici- palities to local self-government. ss City of Wyandotte v. Wood, 5 Kan. 603; State v. City of Cincin- nati, 20 Ohio St. 18; Com. v. Mac- ferron, 152 Pa. 244; Rohde v. Sea- vey, 4 Wash. 91, 29 Pac. 768; City of Port Townsend v. Sheehan, 6 Wash. 220, 33 Pac. 427. 6 Pratt v. Browne, 135 Cal. 649, 67 Pac. 1082; San Luis Obispo Coun- ty v. Graves, 84 Cal. 75. See 94, post. "Guthrie Nat. Bank v. City of Guthrie, 173 U. S. 528; People v. Levee Dist. No. 6 of Sutter County (Cal.) 63 Pac. 342; City of St. Louis Com'rs v. Shields, 62 Mo. 247; Von Phul v. Hammer, 29 Iowa, 222; Her- mann v. Town of Guttenburg, 63 N. J. Law, 616, 44 Atl. 758. 72 in Pepin Tp. v. Sage (C. C. A.) 129 Fed. 657, it was said, quoted from Nichols v. Walter, 37 Minn. 264, "A law is general and uniform in its operation which operates equally upon all the subjects within the class of subjects for which the rule is adopted; but, as we have said, the legislature cannot adopt a mere arbitrary classification, even though the law be made to operate equally upon each subject of each 93 LEGISLATIVE POWER. 155 grouping, classifying or arranging of certain objects will not of itself make legislation general. There must be a logical basis for the desired effect independent of conditions or circumstances then existing. As has been said : "It is not necessary that a law should operate upon all counties and cities to be constitutional. If the law is general and uniformly operating upon all of a cer- tain necessary or reasonable class, or upon all who are brought within the relations and circumstances provided in the act, and such law has provision for future as well as present operation, it is not obnoxious to limitations against special and local legis- lation." 73 of the classes adopted. An illustra- tion and example of that we take from Richards v. Hammer, 42 N. J. Law, 435, 440: 'Thus a law enact- ing that in every city in the state in which there are ten churches there should be three commission- ers of the water department, with certain prescribed duties,' would present a specimen of such law. So in the matter we have supposed, of granting powers and privileges to incorporated villages, if those situ- ated on rivers were placed in a class for the purpose of conferring on them special powers and privileges not referring to nor suggested by the peculiarity of their situation as, for instance, for the purpose of maintaining high schools the class- ification would be merely arbitra- ry." Wheeler v. City of Philadel- phia, 77 Pa. 338. See, also, State v. Cooley, 56 Minn. 540, where, on reargument, p. 549, Justice Collins said in discussing the distinction between a general and special law: "Hence, a general law does not import universality in the subject or operation of the law. 'Gen- eral' is defined by Webster as relat- ing to a genus; pertaining to a whole class or order. The line of demarcation between general laws and special laws often seems indefi- nite and difficult to draw; but, if the principles upon which the distinc- tion rests are kept in mind, the dif- ficulty is not nearly so great as might seem. A law is general, In the constitutional sense, which ap- plies to and operates uniformly upon all members of any class of persons, places or things requiring legislation peculiar to itself in matters covered by the law; while a special law is one which relates and applies to particular members of a class, either particularized by the express terms of the act, or separated by any meth- od of selection from the whole class to which the law might, but for such limitation, be applicable. And in this connection there should be kept In mind the distinction between 'public' and 'private,' and 'general' and 'special,' as the latter terms are used in these constitutional restric- tions; for special legislation in the constitutional sense may be either public or private." 73 Harwood v. Wentworth, 162 U. S. 547; Fellows v. Walker, 39 Fed. 651; City of Topeka v. Gillett, 32 Kan. 431; State v. Kansas City, 50 Kan. 508, 31 Pac. 1102; Devine v. Cook County Com'rs, 84 111. 591; West Chicago Park Com'rs v. Me- 156 LEGISLATIVE POWER. 94 94. Constitutionality of laws classifying public corporations. In a preceding section, attention has been called to the con- stitutional limitations upon the power of the legislature to pass Mullen, 134 111. 170, 25 N. E. 677; true practical limitation of the legis- Cummings v. City of Chicago, 144 lative power to classify is that the 111. 563, 33 N. E. 855; State v. Cooley, classification shall be upon some ap- 56 Minn. 540, where the court said parent natural reason some reason on reargument: "By necessity is suggested by necessity, by such a meant practical, and not absolute, difference in the situation and cir- necessity. But the characteristics cumstances of the subjects placed which will serve as a basis of in different classes as suggests the classification must be substantial, necessity or propriety of different and not slight or illusory. For ex- legislation with respect to them." ample, distinctions due merely to Anderson v. City of Trenton, 42 N. pre-existing repealable special legis- J. Law, 487; State v. Spaude, 37 lation would not, of themselves, con- Minn. 322, 34 N. W. 165; Codlin v. stitute a proper basis of classifi- Kohlhousen, 9 N. M. 565; State v. cation, for that would tend tu per- Mitchell, 31 Ohio St. 592; State v. petuate the very peculiarities which Anderson, 44 Ohio St. 247; Bronson the constitution was designed ulti- v. Oberlin, 41 Ohio St. 476. mately to remove." State v. Herr- Wheeler v. City of Philadelphia, mann, 75 Mo. 340; Nichols v. Wai- 77 Pa. 338. "Legislation is intend- ter, 37 Minn. 272, where the court ed not only to meet the wants of the say "we quote again from Richards present, but to provide for the v. Hammer, 42 N. J. 'Law, 435, 'but future. It deals not with the past, the true principle requires something but in theory at least, anticipates more than mere designation by such the needs of a state, healthy with a characteristics as will serve to classi- vigorous development. It is intend- fy, for the characteristics which thus ed to be permanent. At no distant serve as the basis for classification day, Pittsburgh will probably be- must be of such a nature as to mark come a city of the first class. In the objects so designated as peculiarly the meantime, is the classification requiring exclusive legislation. There as to cities of the first class bad must be a substantial distinction, because Philadelphia is the only having reference to the subject-mat- one of the class? We think not. ter of the proposed legislation, be- Classification does not depend upon tween the objects or places embraced numbers. The first man, Adam, was in such legislation and the objects as distinctly a class when the breath or places excluded. The marks of of life was breathed into him as at distinction on which the classifica- any subsequent period. The word tion is founded must be such, in the is used not to designate numbers, nature of things, as will, in some rea- but a rank or order of persons or sonable degree, at least, account for things; in society it is used to in- or justify the restriction of the leg- dicate equality, or persons distin- islation,' " and continue, "Or, to state guished by common characteristics; it differently, though not so well, the as, the trading classes, the laboring 94 LEGISLATIVE POWER. 157 what is ordinarily termed "special legislation, " these requiring the passage of laws general in their nature and under the provisions of which all bodies fulfilling or meeting the conditions specified can become organized. The necessity for legislation classifying public corporations arises from the fact, so often repeated, that the density of population varies in different portions of the state, and that those portions thickly populated experience wants and require for their proper government, and for the proper admin- istration of public and governmental affairs and functions, or- ganizations or forms of government more complex in their char- acter than those required by sparsely settled regions. The con- stitutionality of legislation providing for the classification of public corporations is well established, so long as it comes within the constitutional inhibition, and is based upon some distinction that renders the legislation reasonable and expedient. 74 A classi- fication is inoperative when based upon unsubstantial, arbitrary or illogical differences or characteristics. "There must be sub- stantial distinctions having a reference to the subject-matter of the proposed legislation between the objects." 75 There exists, as one basis of classification, density of population, 76 and as another classes; in science, it is a division 189; State v. Babcock, 25 Neb. 709; or arrangement containing the sub- State v. Stuht, 52 Neb. 209; Gibbs ordinate divisions of order, genus, v. Morgan, 39 N. J. Eq. (12 Stew.) and species." 126; Van Riper v. Parsons, 40 N. Com. v. Patton, 88 Pa. 258; Davis J. Law, 123; Anderson v. Trenton, v. Clark, 106 Pa. 377; Morrison v. 42 N. J. Law, 486; Van Giesen v. Bachert, 112 Pa. 322; City of Scran- Bloomfield, 47 N. J. Law, 442; Long ton v. Silkman, 113 Pa. 191, 6 Atl. Branch Police, S. & I. Commission 146; Lloyd v. Smith, 176 Pa. 213, v. Sloane, 49 N. J. Law, 356; State 35 Atl. 200; Burkholtz v. State, 84 v. Borough of Clayton, 53 N. J. Law, Tenn. (16 Lea) 71. 277; McLaughlin v. City of Newark, 7*Darcy v. City of San Jose, 104 57 N. J. Law, 298; State v. City of Cal. 642; Carpenter v. People, 8 Cincinnati, 52 Ohio St. 419; City of Colo. 116. Reading v. Savage, 124 Pa. 328; Green v. Com., 95 Ky. 233. The Johnson v. Martin, 75 Tex. 33; Peo- assignment of a city to a particular pie v. /"age, 6 Utah, 353. class is a legislative act and cannot " Richards v. Hammer, 42 N. J. be interfered with by the courts for Law, 435; State v. Borough of Clay- the reason that it has not the nee- ton, 53 N. J. Law, 277; Ayars' Ap- essary population to entitle it to a peal, 122 Pa. 266. place in such class. Donlon v. Jewett, 88 Cal. 530; Brown v. Holland, 97 Ky. 249; Kumler v. San Bernardino County Kansas City v. Stegmiller, 151 Mo. Sup'rs, 103 Cal. 393; Darcy v. Com- 153 LEGISLATIVE POWER. 94 the character of the powers and duties and functions necessary to be performed and exercised. 77 Acts passed classifying public corporations have been attacked most frequently upon the consti- tutional ground of special legislation. Sometimes the power is given to the legislature of the state to determine for itself whether a special condition can be satisfied under the provisions of general laws governing such circumstances, or whether it is necessary to pass a law which it may hold general. In other cases, as has been already suggested, this power of deciding when a general law is applicable is given to the judicial branch of the state. 78 In determining the character of certain legislation as special or otherwise, coming within the constitutional prohibition, its application should not be considered. That it may apply to but one municipality or public corporation in the state does not es- tablish or fix its character, therefore, as a special act. 79 That the mon Council of San Jose, 104 Cal. 642; Fragley v. Phelan, 126 Cal. 383; Pratt v. Browne, 135 Cal. 649; Peo- ple v. Cooper, 83 111. 585; Green v. Com., 95 Ky. 233, 24 S. W. 610; Alexander v. City of Duluth, 77 Minn. 445; Kelly v. Meeks, 87 Mo. 396; In re Sewer Assessment for Passaic, 54 N. J. Law, 156, 23 Atl. 517; Wood v. Atlantic City, 56 N. J. Law, 232, 28 Atl. 427; Closson v. Board of License & Excise of Tren- ton, 48 N. J. Law, 438; Paul v. Judge of Circ. Ct. of Gloucester County, 50 N. J. Law, 585; Warner v. Hoagland, 51 N. J. Law, 62. In State v. Wall, 47 Ohio St. 499, a mere increase in population held not to advance a city from second to first class without complying with the provisions of the statute rela- tive to such a change. Kilgore v. Magee, 85 Pa. 401; Luzerne County v. Glennon, 109 Pa. 564; Land, Log & Lumber Co. v. Brown, 73 Wis. 294. 77 Darcy v. Common Council of San Jose, 104 Cal. 642; People v. Londoner, 13 Colo. 303, 22 Pac. 764; Rohde v. Seavey, 4 Wash. 91, 29 Pac. 768. 78 See cases cited In 92; Earle v. Board of Education of San Fran- cisco, 55 Cal. 489; City of Topeka v. Gillett, 32 Kan. 431; State v. Herr- mann, 75 Mo. 340; Van Giesen v. Inhabitants of Bloomfield, 47 N. J. Law, 442; State v. Pugh, 43 Ohio St. 98; Scowden's Appeal, 96 Pa. 422. 7 Fellows v. Walker, 39 Fed. 651; Darrow v. People, 8 Colo. 417; State v. Kolsem, 130 Ind. 434, 29 N. E. 595; Louisville School Board v. Su- perintendent of Public Instruction, 102 Ky. 394, 43 S. W. 718; State v. Graham, 16 Neb. 74; State v. Stuht, 52 Neb. 209, 71 N. W. 941; Mar- met v. State, 45 Ohio St. 63. But State v. Jackson County Ct., 89 Mo. 237, holds a law that can apply to but one county in a state special legislation. See, also, State v. An- derson, 44 Ohio St. 247, that decides legislation local and special classify- ing cities upon the basis of popula- tion where, according to the last Federal census, there is but one city fulfilling the conditions required. 95 LEGISLATIVE POWER. 159 law has for its basis of classification reasonable and -uniform con- ditions, and genuine and substantial distinctions which may apply to the future as well as existing conditions, seems to be the test, 80 though some cases hold that where the purpose of the law is tem- porary only, if it creates a distinctive class based upon existing circumstances it may still be constitutional. 81 The act passed by a legislature may provide that before it shall become operative the consent of the people affected shall be given, and this condi- tion does not, necessarily, constitute it special legislation. 82 95. Other constitutional objections. The unconstitutionality of legislation affecting public corpora- tions has been urged not only upon the ground that it is special legislation but also because state constitutions may contain pro- visions that all laws relating to certain matters "shall be uniform in their operation throughout the state," 83 or there may be also provisions which prohibit the legislature from passing any local or special law "regulating the affairs of counties, cities, etc.," 84 so Ewing v. Hoblitzelle, 85 Mo. 64; Kelly v. Meeks, 87 Mo. 396; Foley v. City of Hoboken, 61 N. J. Law, 478, 38 Atl. 833; Angell v. Cass Coun- ty, 11 N. D. 265, 91 N. W. 72; State v. Hawkins, 44 Ohio St. 98. si Iowa R. Land Co. v. Soper, 39 Iowa, 112; Nichols v. Walter, 37 Minn. 272; Cobb v. Bord, 40 Minn. 479; State v. Cooley, 56 Minn. 548; Flynn v. Little Falls Elec. & Water Co., 74 Minn. 180; State v. City of Thief River Falls, 76 Minn. 15; Alexander v. City of Duluth, 77 Minn. 445. sa People v. Kipley, 171 111. 44. In State v. Copeland, 66 Minn. 315, Minnesota Laws 1895, c. 228, grant- ing certain cities charter powers to take effect when adopted by a city, held unconstitutional as being in contravention of Const, art. 4, 33 and 34. City of Reading v. Savage, 124 Pa. 328; Warner v. Hoagland, 51 N. J. Law, 62; Com. v. Reynolds, 137 Pa. 389. Pittsburgh's Petition for Board of Viewers, 138 Pa. 401. This case construes Pennsylvania Act June 14, 1887, and holds it con- stitutional against the objection that it was a local act, because provid- ing a certain time within which it should go into operation as to cities of a certain grade. ss City of Kenton v. State, 52 Ohio St. 59, 38 N. E. 885. s* Appeal of Scranton School Dist, 113 Pa. 176; Appeal of Ayars, 122 Pa. 266; City of Reading v. Savage, 124 Pa. 328. See, also, Const, of Cal. art. IV, 25, par. 9; Colo. art. V, 25; Idaho, art. Ill, 19; 111. art. IV, 22; Ind. art. IV, 22; Mo. art. IV, 53; Mont. art. V, 26; Neb. art. Ill, 15; Nev. art. IV, 20; N. J. art. IV, 7, par. 11; N. D. art. II, 69, pars. 4, 32; Pa. art. Ill, 7; S. D. art. Ill, 23, par. 4; Tex. art. Ill, 56; W. Va. art. VI, 39; Wyo. art. Ill, 27. 160 LEGISLATIVE POWER. 95 or "regulating the internal affairs of towns and counties," 85 and acts or resolves of the legislature may come within the prohibi- tions contained in these provisions. That a bill deals with more than one subject, one only being expressed in its title, is another constitutional objection urged against legislation looking to the organization or control of public corporations. Such a provision is intended to afford a protection to the people and to legislators against the passage of bills dealing with more than one subject, some of which might not be, but for this prohibition, included in the title. 86 It is not necessary, however, in the title of a bill, to recite in detail all its provisions. General information or notice of the subject legislated upon is sufficient. 87 es Meredith v. City of Perth Am- boy, 60 N. J. Law, 134, 36 Atl. 779; Grey v. City of Dover, 62 N. J. Law, 40, 40 Atl. 640; Hermann v. Town of Guttenberg, 63 N. J. Law, 616, 44 Atl. 758. See, also, constitutional references in preceding note. seMontclair v. Ramsdell, 107 U. S. 147, where the court in an opin- ion written by Judge Harlan con- struing such a constitutional pro- vision of the state of New Jersey said: "The objections should be grave and the conflict between the statute and the constitution palpable before the judiciary should disre- gard a legislative enactment upon the sole ground that it embraced more than one object or if but one object that it was not sufficiently expressed by the title." Otoe Coun- ty v. Baldwin, 111 U. S. 1; Ackley School Dist. v. Hall, 113 U. S. 135; Mahomet v. Quackenbush, 117 U. S. 609; Carter County v. Sinton, 120 U. S. 517; State v. Haverly, 62 Neb. 767; Astor v. Arcade R. Co., 113 N. Y. 93, where many cases are cited in the briefs. Judge Earl in his opinion on page 109 says on the purpose of such a provision, "The constitutional provision referred to has been deemed by statesmen and jurists, conditores legum, of so much importance that it is found in the fundamental laws of most of the states. Its purpose is to prevent fraud and deception by concealment, in the body of acts, of subjects not by their titles disclosed to the general public and to legislators who may rely upon them for information as to pending legislation. When the subject is expressed, all matters fair- ly and reasonably connected with it, and all measures which will or may facilitate its accomplishment, are proper to be incorporated in the act and are germane to the title. The title must be such, at least, as fairly to suggest or give a clue to the subject dealt with in the act, and unless it comes up to this stan- dard it falls below the constitutional requirement." In re Airy St., 113 Pa. 281. See, also, section, post, "Title of ordinances." ST State of Illinois v. Illinois Cent. R. Co., 33 Fed. 730; Lockhart v. City of Troy, 48 Ala. 581; City of Savannah v. State, 4 Ga. 26; Hill v. Town of Decatur Com'rs, 22 Ga. 203; Davis v. Woolnough, 9 Iowa, 104; People v. Mahaney, 13 Mich. 95 LEGISLATIVE POWER. 161 96. The impairment or destruction of vested rights as a limita- tion. The legislature of a state may pass laws either creating public corporations, regulating and controlling, or attempting to regu- late and control their affairs, dividing their boundaries, providing for the disposition of their revenues and the manner in which taxes shall be levied and collected, such laws not coming within the constitutional objections set forth in the preceding paragraphs and therefore not unconstitutional and void, but subject to funda- mental principles of law and if violating them invalid or subject to other constitutional provisions relating to the impairment of contract obligations and other rights. 88 The control of the sov- ereign, as has been said, is full, ample and supreme over public corporations, but the existence of this power does not permit even the sovereign, much less the legislature, its agent, to impair or destroy contract, property and vested rights owned by aliens or citizens, within the jurisdiction of the state and protected by fundamental law. In short, the cases hold without exception that the legislature cannot pass a law affecting either the creation, life or duties of a public corporation which in effect impairs or de- stroys the right of a creditor of that corporation. Creditors pos- sess vested rights which even the state, controlled by constitu- tional limitations, cannot take away. Rights of this character may consist of a remedy given by the state to enforce the collec- 481; Walter v. Town of Union, 33 ed Dillon, Mun. Corp. (4th Ed.) pp. N. J. Law, 350; Harris v. People, 59 87-90. N. Y. 599 ; State v. Wright, 14 Or. ss Milner v. City of Pensacola, 2 365; Luehrman v. Taxing Dist. of Woods, 632, Fed. Gas. No. 9,619; Shelby County, 70 Tenn. (2 Lea) Shapleigh v. City of San Angelo, 167 425. See, also, the following cases U. S. 646; People v. Burr, 13 Cal. holding bills unconstitutional as not 343; Davidson v. City of New York, complying with the rule stated in 27 How. Pr. (N. Y.) 342; Wallace the text. Brieswick v. City of Bruns- v. Sharon Tp. Trustees, 84 N. C. wick, 51 Ga. 639; Ayeridge v. Town 164, holds contrary to the general Com'rs of Social Circle, 60 Ga. 404; doctrine; Morris v. State, 62 Tex. Village of Lockport v. Gaylord, 61 728. In Wade v. City of Richmond, 111. 276; Williamson v. City of Keo- 18 Grat. (Va.) 583, it is held that kuk, 44 Iowa, 88; City of Water- the annexation of territory forming town v. Fairbanks, 65 N. Y. 588; a part of a county to an adjoining Astor v. Arcade R. Co., 113 N. Y. city does not impair the obligation 93; Durkee v. City of Janesville, 26 of a contract between the county and Wis. 697. See, also, many cases cit- its creditors. Abb. Corp. 11. 162 LEGISLATIVE POWER. 97 tion of a valid obligation, 89 or it may be a means provided for the payment of an indebtedness at the time of the granting of the original authority to incur such indebtedness, a corporate power of taxation conferred, 90 or again it may be specific property or revenues placed at the disposal of the creditor under certain cir- cumstances and conditions. 91 97. Control over the corporation in its private capacity. In its capacity as an individual, a public corporation deals with the legislature or the sovereign upon the same basis of equality as a private person or corporation. The property, of whatever character, which it may acquire and hold, is acquired and held subject to all the rules and remedies of the law affecting private property and interests. The legislature can no more arbitrarily pass laws affecting these interests and property than it can those of private individuals. 92 As recently said, "they (the courts) are ss Milner v. City of Pensacola, 2 Woods, 632, Fed. Gas. No. 9,619; Ra- der v. Southeasterly Road Dist. of Union, 36 N. J. Law, 273; Ganson v. City of Buffalo, 2 Abb. Dec. (N. Y.) 236; Upper Darby Tp. v. Bor- ough of Lansdowne, 174 Pa. 203. See, also, many authorities cited in 88. 90 City of Covington v. Kentucky, 173 U. S. 231; Devereaux v. City of Brownsville, 29 Fed. 742; Columbia County Com'rs v. King, 13 Fla. 451. See Palmer v. City of Danville, 166 111. 42, as to effect of change in man- ner of levying and collecting spe- cial tax upon right of contractor for city improvements; Board of Edu- cation of Hawesville v. Louisville, H. & St. L. R. Co., 110 Ky. 932, C2 S. W. 1125; Broadfoot v. City of Fayetteville, 124 N. C. 478; Ladd v. City of Portland, 32 Or. 271. See, also, authorities cited under 88. i Warner v. Hoagland, 51 N. J. Law, 62, 16 Atl. 166; Weekes v. City of Galveston, 2 Tex. Civ. App. 102, 51 S. W. 544; Smith v. City of Appleton, 19 Wis. 468. See, also, 88. 82 Town of East Hartford v. Hart- ford Bridge Co., 10 How. (U. S.) 511; Grogan v. City of San Fran- cisco, 18 Cal. 590; People v. City of Chicago, 51 111. 17; New Orleans, M. & C. R. Co. v. City of New Or- leans, 26 La. Ann. 478. Police Jury of Jefferson Parish v. McCormack, 32 La. Ann. 624. Here it is held that the public property of a parish cannot be converted into private property by the territorial division of the parish. Proprietors of Mt. Hope Cemetery v. City of Boston, 158 Mass. 509. In the opinion given by Judge Allen it is said "by a quite general concur- rence of opinion this legislative pow- er of control is not universal and does not extend to property acquired by a city or town for special pur- poses not deemed strictly and ex- clusively public and political but in respect to which a city or town is deemed rather to have a right of private ownership of which it can- 97 LEGISLATIVE POWER. 163 also more and more recognizing that, from the point of view of the inviolable private rights of municipal corporations, these bodies may hold property as private in character and therefore as inviolable in character by any governmental action as the prop- erty of individuals. It is indeed true that this position has not been reached without considerable reluctance." 93 In the not be deprived against its will save by the right of eminent domain with payment of compensation. * * * The conclusion to which we have come is that the cemetery falls with- in the class of property which the city owns in its private or proprie- tary character as a private corpora- tion might own it and that its own- ership is protected under the con- stitutions of Massachusetts and of the United States so that the legis- lature has no power to require its transfer without compensation." Judge Allen also says: "The city of Boston is possessed of much other property which, in a certain sense, and to a certain extent, is held for the benefit of the public, but in other respects is held more like the prop- erty of a private corporation. Not- ably among these may be mentioned its system of waterworks, its sys- tem of parks, its markets, its hos- pital, and its library. In establish- ing all of these the city has not acted strictly as an agent of the state government for the accomplish- ment of general public or political purposes, but rather with special reference to the benefit of its own inhabitants. If its cemetery is un- der legislative control, so that a transfer of it without compensation can be required, it is not easy to see why the other properties men- tioned are not also; and all the oth- er cities and towns which own cem- eteries or other property of the kinds mentioned might be under a sim- ilar liability." People v. Common Council of Detroit, 28 Mich. 228. In this case it is intimated that parks are in the nature of private property. Spaulding v. Town of Andover, 54 N. H. 38, 56; Benson v. City of New York, 10 Barb. (N. Y.) 223; Webb v. City of New York, 64 How. Pr. (N. Y.) 10; People v. Ingersoll, 58 N. Y. 1; People v. Fields, 58 N. Y. 491; Milam County v. Bateman, 54 Tex. 153; Town of Montpelier v. Town of East Mont- pelier, 29 Vt. 12; Town of Milwau- kee v. City of Milwaukee, 12 Wis. 93; State v. Haben, 22 Wis. 660; State v. Schweickardt, 109 Mo. 496, 19 S. W. 47. See, also, note 35 Am. St. Rep. 529. But see the case of David v. Portland Water Committee, 14 Or. 98, where the court say, "Pub- lic parks, gas, water and sewage in towns and cities may ordinarily be classed as private affairs but they often become matters of public im- portance and when the legislature determines that there is a public ne- cessity for their use in a certain locality, I do not think they can be designated as mere private affairs; that is a relative question." ss Darlington v. City of New York, 31 N. Y. 164. See, also, Terrett v. Taylor, 9 Cranch (U. S.) 43, 52; Town of Pawlet v. Clark, 9 Cranch (U. S.) 292; and the authorities cited under 87. 164 LEGISLATIVE POWER. 97 opinion of Justice Story in the Dartmouth College Case, 9 * he says : "But it will hardly be contended that even in respect to such (public) corporations the legislative power is so transcendent that it may, at its will, take away the private property of the cor- poration or change the uses of its private funds acquired under the public faith. Can the legislature confiscate to its own use the private funds which a municipal corporation holds under its charter without any default or consent of the corporators? If a municipal corporation be capable of holding devises and lega- cies to charitable uses, * * * does the legislature under our forms of limited government possess the authority to seize upon those funds and appropriate them to other uses at its own arbi- trary pleasure against the will of the donors and donees?" * Trustees of Dartmouth Colleger. Woodward, 4 Wheat. (U. S.) 518. CHAPTER IV. CORPORATE ELECTIONS. 98. Corporate elections. 99. Notice. 100. Time and place of holding. 101. The town meeting; its powers. 102. Its powers, continued. 103. Purpose for which held; levy of taxes; election of officers. 104. The town meeting; right and authority for holding. 105. Officers and their duties. 106. Voters and their qualifications. 107. Miscellaneous matters. 98. Corporate elections. The limits of this work will not permit the extended discussion or treatment of the law relating to general elections. This is a subject of sufficient importance to warrant an extended treatise. A few principles of law and cases will be given relating to the town meeting as a particular form of election. That discriminating and keen observer, De Tocqueville, ascribes the success of American political institutions and ideas, in a great measure, to the existence of the New England town as a political organization and the opportunity afforded each individual at town meetings to participate in and assume the exercise of govern- mental duties. In his opinion: "Town-meetings are to liberty what primary schools are to science; they bring it within the people's reach, they teach men how to use and how to enjoy it. A nation may establish a free government, but without municipal institutions, it cannot have the spirit of liberty." "The township of New England possesses two advantages, which strongly excite the interest of mankind, namely, indepen- dence and authority. Its sphere is limited, indeed; but within that sphere its action is unrestrained. This independence alone gives it a real importance, which its extent and population would not insure." 166 CORPORATE ELECTIONS. 98 "The New Englander is attached to his township, not so much because he was born in it, but because it is a free and strong community, of which he is a member, and which deserves the care spent in managing it. In Europe the absence of local public spirit is a frequent subject of regret to those who are in power ; every one agrees that there is no surer guaranty of order and tran- quility, and yet nothing is more difficult to create." "The township, at the center of the ordinary relations of life, serves as a field for the desire of public esteem, the want of ex- citing interest, and the taste for authority and popularity; and the passions which commonly embroil society change their char- acter, when they find a vent so near the domestic hearth and the family circle." "The native of New England is attached to his township be- cause it is independent and free; his co-operation in its affairs insures his attachment to its interest; the well-being it affords him secures his affection ; and its welfare is the aim of his ambi- tion and of his future exertions. He takes a part in every occur- rence in the place; he practices the art of government in the small sphere within his reach; he accustoms himself to those forms without which liberty can only advance by revolutions; he imbibes their spirit; he acquires a taste for order, compre- hends the balance of powers, and collects clear practical notions on the nature of his duties and the extent of his rights. ' n This particular form of public quasi corporation is the favorite model for all governmental agencies intended to effect the same results. The idea embodied is local self-government; the right of the people residing within a certain locality to meet, discuss and supply their wants, controlled only by the state. In some localities the agency employed for attaining the highest develop- ment of local self-government is the New England town, com- monly so-called, first adopted in New England, hence its name. It has spread to all those parts of the United States settled and dominated by New England ideas. In other parts of the country the form of the organization intended to accomplish the same purpose is what is known as the county or shire. The agency, however, is immaterial. All forms of public corporations, in- cluding municipal, have for their purpose, their sole object, the i De Tocqueville, Democracy inAmerica, c. 5. 99 CORPORATE ELECTIONS. 1(,7 better government of the people within a certain locality. It may not be out of place at this time to say that distinctions and differences have been drawn, or attempted, as between the differ- ent grades of public corporations. Such distinctions and differ- ences exist, however, only as based upon the relative destiny of population of certain localities. They are all agencies of the government, administering public affairs, exercising governmen- tal duties, each differently and in the manner best calculated to effect the end or the purpose for which they exist. The more frequent exercise of a power does not change its quality or char- acter. A confusion of ideas necessarily follows a multiplication of differences and distinctions which do not exist except in the cunning minds of theorists. The town meeting, the representative assembly or election of the town, is nothing more nor less than the meeting, at the time designated by law, of all the qualified voters of the town at a public place, to elect officers for the ensuing year and to discuss and take action upon measures looking to their greater conveni- ence and better government. 2 99. Notice. That this meeting be legal, independent of statutory provisions, it is necessary that those entitled to assemble and participate in its deliberations should have notice. 3 In England the courts apply the rule that if all the corporators are present, notice may be dispensed with by unanimous con- sent. 4 But in New England, even though all are present at the town meeting, in the absence of notice, it is not valid, and all acts performed are void. 6 The form of notice is immaterial, unless prescribed by law, so long as the result to be accomplished is effected. 6 It is necessary that the notice should direct attention 2 See interesting discussion on lo- B Hayward v. School Dist. No. 13, cal self-government in Andrews' 56 Mass. (2 Gush.) 419; Brewster American Law, 452 et seq. v. Hyde, 7 N. H. 206. s Reynolds v. Inhabitants of New e Baldwin v. North Branford, 32 Salem, 47 Mass. (6 Mete.) 340; Conn. 47; Colman v. Anderson, 10 Pratt v. Town of Swanton, 15 Vt. Mass. 105, and Inhabitants of Bucks- 147; Hubbard v. Town of Williams- port v. Spofford, 12 Me. 487, hold town, 61 Wis. 397; McVichie v. Town seals of selectmen calling the town of Knight, 82 Wis. 137. meeting not essential to the valid- * Rex v. Theodorick, 8 East, 545. ity of the warrant. Cragie v. Mel- 168 CORPORATE ELECTIONS. 99 to particular business to be transacted at the meeting called, and the powers of the town are limited strictly, except as authorized by statute, to the matters included within the notice. 7 But the rule also obtains that the notice or warrant for a town meeting need only state with reasonable certainty the matters of business to be acted upon at the meeting called. 8 The time and place of meeting should be definitely stated in the notice. 9 This notice may be served either by posting, 10 at the place provided by law len, 6 Mass. 7; Reynolds v. Inhabi- tants of New Salem, 47 Mass. (6 Mete.) 340; Wheeler v. Carter, 180 Mass. 382, 62 N. E. 471. In Mc- Vichie v. Town of Knight, 82 Wis. 137, a notice was held insufficient signed by' a name without any offi- cial designation and nothing in it to show the official character of the person so signing. 7 Town of Bloomfleld v. Charter OaK Bank, 121 U. S. 121; Willard v. Borough of Killingworth, 8 Conn. 247; Woodward v. Reynolds, 58 Conn. 486; Evans v. Osgood, 18 Me. 213; Inhabitants of Cornish v. Pease, 19 Me. 184; Austin v. Inhabitants of York, 57 Me. 304; Drisko v. In- habitants of Columbia, 75 Me. 73; Wood v. Inhabitants of Quincy, 65 Mass. (11 Gush.) 487; Brackett v. Whidden, 3 N. H. 17. s Bull v. Town of Warren, 36 Conn. 83; Davenport v. Inhabitants of Hal- lowell, 10 Me. 317; Deane v. Wash- burn, 17 Me. 100; Belfast & M. L. R. Co. v. Inhabitants of Brooks, 60 Me. 568; Brown v. Inhabitants of Winterport, 79 Me. 305; Blackburn v. Inhabitants of Walpole, 26 Mass. (9 Pick.) 97; Alden v. Rounseville, 48 Mass. (7 Mete.) 218; Fuller v. In- habitants of Groten, 77 Mass. (11 Gray) 340; Sherman v. Torrey, 99 Mass. 472; Inhabitants of Westhamp- ton v. Searle, 127 Mass. 502; Com. v. Wentworth, 145 Mass. 50; Smith v. Crittenden, 16 Mich. 152; Tucker v. Aiken, 7 N. H. 385; Town of Pittsburg v. Davenport, 56 N. H. 272; Marden v. Champlin, 17 R. I. 423; Ovitt v. Chase, 37 Vt. 196; Kittredge v. Town of Walden, 40 Vt. 211; Wyley v. Wilson, 44 Vt. 404. 9 Chamberlain v. Inhabitants of Dover, 13 Me. 466; Brown v. In- habitants of Winterport, 79 Me. 305; Sherwin v. Bugbee, 16 Vt. 439. "We have no doubt the place of holding the meeting must be definitely speci- fied. It would hardly do to warn a meeting to be held at some place in the district, or at a designated village, or at one of two or more dwelling-houses. So, too, in regard to time, there seems to be a pro- priety in having it definitely fixed. If the day, only, is named, the ques- tion immediately arises, shall the inhabitants be required to attend the whole day? or when can the meeting transact the business for which they meet, so as to bind the absent members? * * * The fact that the meeting adjourned to an- other day and hour will not help the matter, on the obvious principle that the adjourned meeting could have no more authority than the original meeting, which was void." State v. Davidson, 32 Wis. 114; State v. Waterbury, 79 Wis. 207; State v. Dcyle, 84 Wis. 678. 10 Tompson v. Mussey, 3 Me. (3 Greenl.) 305; Brown v. Witham, 51 99 CORPORATE ELECTIONS. 169 or by-law of the town, 11 publication, or personal service 12 upon the qualified voters of the town, and this should be done for the length of time, before the meeting, fixed by law. 13 Where the statute requires the time and place of meeting to be stated in the notice, a strict compliance with the law is necessary, otherwise there can be no legal liability based upon action taken at the meeting when held. 14 Record of the time and manner of the giving of this notice, and its substance, should be kept by the town clerk or clerical officer, 16 and this record is prima facie evi- dence of the sufficiency and legality of the acts recited. 16 The return, on the warrant or notice calling the town or parish meet- ing, of the officer designated by law, it is held, is the only proper evidence that the meeting was legally warned. If this return is defective, parol evidence is not admissible to remedy the defect, 17 Me. 29; Parker v. Titcomb, 82 Me. 180; Beals v. James, 173 Mass. 591; Norris v. Eaton, 7 N. H. 284; Brew- ster v. Hyde, 7 N. H. 206. 11 In Com. v. Sullivan, 165 Mass. 183, posting at the place where the meeting was to be held was held to sufficiently comply with the by-law of the town requiring notice of the town meeting to be posted at the town hall, that building having burned down. Briggs v. Murdock, 30 Mass. (13 Pick.) 305; Scammon v. Scammon, 28 N. H. 429; Stoddard v. Oilman, 22 Vt. 568. 12 Beals v. James, 173 Mass. 591 ; Wood v. Qufmby, 20 R. I. 482. is Brooklyn Trust Co. v. Town of Hebron, 51 Conn. 22 ; People v. Trus- tees of Fairbury, 51 111. 149; Ward- ens of Christ Church v. Woodward, 26 Me. 172; Jones v. Sanford, 66 Me. 585; Gerry v. Herrick, 87 Me. 219; Williams v. Inhabitants of School Dist. No. 1, in Lunenburg, 38 Mass. (21 Pick.) 75; Rand v. Wilder, 65 Mass. (11 Cush.) 294; Com. v. Shaw, 48 Mass. (7 Mete.) 52; Locke v. Se- lectmen of Lexington, 122 Mass. 290; Osgood v. Blake, 21 N. H. 550; Pratt v. Town of Swanton, 15 Vt. 147; Hubbard v. Town of Williamstown, 61 Wis. 397; McVlchie v. Town of Knight, 82 Wis. 137. i* Chamberlain v. Inhabitants of Dover, 13 Me. 466; Haines v. School Dist. No. 6, in Readfield, 41 Me. 246; Kingsbury v. Centre School Dist. in Quincy, 53 Mass. (12 Mete.) 99; Sherwin v. Bugbee, 16 Vt. 439. "Bearce v. Fossett, 34 Me. 575; Allen v. Archer, 49 Me. 346; Brown v. Witham, 51 Me. 29; Hamilton v. Inhabitants of Phipsburg, 55 Me. 193; Com. v. Shaw, 48 Mass. (7 Mete.) 52; Town of Lemington v. Blodgett, 37 Vt. 215. State v. Town of Decatur Sup'rs, 58 Wis. 291, holds the recording of a request for spe- cial town meeting merely directory, and that proceedings will not be in- validated by the failure of the town clerk to do so. i Isbell v. New York & N. H. R. Co., 25 Conn. 556; Evarts v. Killing- worth, 20 Conn. 457. 17 Tuttle v. Gary, 7 Me. 426; Hough- ton v. Davenport, 40 Mass. (23 Pick.) 235; State v. Williams, 25 Me. 561; Wardens of Christ Church v. Wood- 170 CORPORATE ELECTIONS. 100 but amendments to this return, so it is held, can be made any time by the officer while he continues in office. 18 A return if de- fective, unless amended, establishes the illegality of the meet- ing, 19 and is conclusive evidence, in collateral proceedings, of the facts recited. 20 The notice or warrant required by law is usually signed by the selectmen of the town, but provision may be made, in case of their refusal, for the signatures of legal voters. 21 100. Time and place of holding. A town meeting should be held at the time fixed in the war- rant to render action taken at such meeting valid. 22 In England the time and place of holding meetings is regulated by express provision in the municipal corporations act. 23 The hours of holding may be designated by statute, and the meeting must be held at the hour or within the hours so specified. If no statutory provision is made for the time of holding a special or an adjourned meeting, the hour fixed in the notice controls, 24 and action taken at a meeting thus held will be binding upon the ward, 26 Me. 172; Briggs v. Mur- dock, 30 Mass. (13 Pick.) 305; Com. v. Shaw, 48 Mass. (7 Mete.) 52; Proprietors of Cardigan v. Page, 6 N. H. 182; Nelson v. Pierce, 6 N. H. 194. But see contra, Ford v. Clough, 8 Me. 334. i Kellar v. Savage, 17 Me. 444; Thayer v. Stearns, 18 Mass. (1 Pick.) 109. isCottrill v. Myrick, 12 Me. 222; State v. Williams, 25 Me. 561; Ward- ens of Christ Church v. Woodward, 26 Me. 172; Fossett v. Bearce, 29 Me. 523; Bearce v. Fossett, 34 Me. 575; Hamilton v. Inhabitants of Phips- burg, 55 Me. 193; Williams v. In- habitants of School Dist. No. 1, in Lunenburg, 38 Mass. (21 Pick.) 75; Nelson v. Pierce, 6 N. H. 194. The Massachusetts cases, however, seem to permit greater informality in the making of a return without holding it sufficient to invalidate the meet- ing as called. See Briggs v. Mur- dock, 30 Mass. (13 Pick.) 305; Houghton v. Davenport, 40 Mass. (23 Pick.) 235; Com. v. Shaw, 48 Mass. (7 Mete.) 52, and Rand v. Wilder, 65 Mass. (11 Gush.) 294. 20 Tuttle v. Gary, 7 Me. (7 Greenl.) 426; Saxton v. Nimms, 14 Mass. 315; Proprietors of Cardigan v. Page, 6 N. H. 182; Schoff v. Gould, 52 N. H. 512. 21 Southard v. Inhabitants of Bradford, 53 Me. 389; Fletcher v. Inhabitants of 'Lincolnville, 20 Me. 439. -- Chamberlain v. Inhabitants of Dover, 13 Me. 466; People v. Board of Audit of Hempstead, 4 Hun (N. Y.) 95; People v. Martin, 5 N. Y. (1 Seld.) 22. 235 & 6 Wm. IV, c. 76, 69 et seq. 2* Burnham v. Rogers, 167 Mo. 17, 66 S. W. 970; Goodel v. Baker, 8 Cow. (N. Y.) 286; People v. Aus- tin, 20 App. Div. 1, 46 N. Y. Supp. 101 CORPORATE ELECTIONS. 171 corporation. This is true of annual meetings where no statutory provision fixes the exact time at which they shall be held. 25 The meeting must also be held at the place designated. If there are statutory provisions fixing the place and regulating the man- ner of conducting the meeting, these must be followed. 26 If, however, there are no provisions either in the statute or the by- laws of the town, or if the matter is left discretionary with cer- tain officers, the place as fixed by such officers will govern, and a meeting there held pursuant to notice will not be considered in- valid. 27 The officers in charge of the meeting may, when au- thorized by statute, adjourn the same to a time and at a place designated. This power of adjournment may be discretionary or incidental. 28 101. The town meeting; its powers. The town meeting being practically the legislative forum of the qualified voters of the town, it follows that it can be called only for the purpose of passing upon such matters as may be au- thorized by law. 29 The governmental agent holding the meeting 526; State v. Racine County Sup'rs, 70 Wis. 543. 25 State v. Hoff, 88 Tex. 297; Mitchell v. Tolan, 33 N. J. Law, 195. 26 Chamberlain v. Inhabitants of Dover, 13 Me. 466; Brown v. In- habitants of Winterport, 79 Me. 305; Auditor General v. Duluth, S. S. & A. R. Co., 116 Mich. 122; State v. Davidson, 32 Wis. 114; State v. Waterbury, 79 Wis. 207; McVichie v. Town of Knight, 82 Wis. 137; State v. Doyle, 84 Wis. 678. 27 Chamberlain v. Inhabitants of Dover, 13 Me. 466. Here a town meeting was called at a school house. The clerk with a few others met in the street opposite the school house, half an hour after the time appointed, read the warrant and ad- journed to a store a mile distant on the borders of the town, leaving no notice of this adjournment at the school house. Action taken at this adjourned meeting was not held binding on the town. 28 Chamberlain v. Inhabitants of Dover, 13 Me. 466; Inhabitants of Canton v. Smith, 65 Me. 203; Reed v. Inhabitants of Acton, 117 Mass. 384; Goodel v. Baker, 8 Cow. (N. Y.) 286. In Hark v. Gladwell, 49 Wis. 177, the court said in speaking of this subject: "It will not do to apply to the orders and resolutions of such bodies nice verbal criti- cism and strict parliamentary dis- tinctions, because the business is transacted generally by plain men not familiar with parliamentary law. Therefore their proceedings must be liberally construed in order to get at the real intent and meaning of the body." Wisconsin Cent. R. Co. v. Ashland County, 81 Wis. 1. 29 Crittenden v. Robertson, 13 Mich. 58; Schoff v. Bloomfleld, 8 Vt. 472: the town authorized in this 172 CORPORATE ELECTIONS. 101 is directed or permitted by the sovereign to administer certain public affairs and exercise certain powers looking to its own local government and benefit as well as the benefit and advantage of the community at large. Action taken at such meeting upon business not authorized will be clearly invalid. 80 The law goes further and requires that action at a meeting, to be valid, must be taken pursuant to the warrant or notice calling it, which shall state with reasonable certainty, as already sug- gested, 31 the matters of business expected to be considered at such meeting. 32 It need not state all subjects to be considered where by usage or custom certain questions are discussed, considered case to act upon matters other than those mentioned in the warrant calling the meeting. Bradley v. Town of Hammonton, 38 N. J, Law, 430. This case holds that under the provisions of New Jersey Act of April 4, 1871, the town may in- demnify its officers out of town monies for reasonable expenses in- curred by them in a bona fide dis- charge of their duties. See, also, authorities cited under 99, note 7. so Inhabitants of Cornish v. Pease, 19 Me. 184; Kean v. Stetson, 22 Mass. (5 Pick.) 492; Wharton v. Roster, 38 N. J. Law, 308; Atwood v. Lincoln, 44 Vt. 332. A town not authorized to borrow money for the purpose of paying bounties, when the warrant for the town meeting read "to see if the town will vote a tax to pay a bounty." See, also, authorities cited 99, note 8. si See authorities cited, 99, note 8. 2 Bull v. Town of Warren, 36 Conn. 83; Belfast & M. L. R. Co. v. Inhabitants of Brooks, 60 Me. 568; Drisko v. Inhabitants of Colum- bia, 75 Me. 73; Blackburn v. In- habitants of Walpole, 26 Mass. (9 Pick.) 97; Torrey v. Millbury, 38 Mass. (21 Pick.) 64. The warrant in this case called a meeting "to see if the town would make an ap- propriation towards purchasing a fire engine." It was held that the tcwn under this warrant was au- thorized to pass a vote "to raise an appropriate amount" for that purpose. Avery v. Stewart, 55 Mass. (1 Gush.) 496. Wood v. Inhabitants of Quincy, 65 Mass. (11 Gush.) 487. Here a town was not authorized to discontinue a portion of a town way and set off the land to a private in- dividual when the warrant for the meeting recited as one of its pur- poses to "choose a committee or to hear and act upon the report of any committee the town may think proper when assembled." Hadsell v. Inhabitants of Hancock, 69 Mass. (3 Gray) 526; Smith v. Abington Sav. Bank, 171 Mass. 178; Kittredge v. Inhabitants of North Brookfield, 138 Mass. 286; Tucker v. Aiken, 7 N. H. 113; Pittsburg v. Danforth, 56 N. H. 272; Birge T. Berlin Iron Bridge Co., 62 Hun, 618, 16 N. Y. Supp. 596; Town of Oyster Bay v. Harris, 21 App. Div. 227, 47 N. Y. Supp. 510; Smith v. Town of West- erly, 19 R, I. 437; Alger v. Curry, 40 Vt 437. 102 CORPORATE ELECTIONS. 173 and passed upon without such notice, or where certain action has been taken for some time past under a special wording in the warrant. 33 But unless questions are by usage or custom thus entitled to be considered at a town meeting, it is necessary that the warrant calling the meeting should distinctly and separately specify them. The purpose of the meeting must be brought to the attention of all who will be affected by its action or who are entitled to take part in the proceedings. This last rule is un- qualifiedly true where the statutes provide that the warrant or notice calling the meeting shall contain a statement of the busi- ness to be considered. 3 * 102. Its powers, continued. In the preceding section, the authority of the town meeting to pass upon and take action regarding matters not included in the warrant or notice has been discussed. Further illustrations will be given in this section of the controlling principles there stated. Except where governed by usage, custom or statute, the town meeting has no authority to take action regarding matters not named or specified in the warrant calling the meeting. Under this rule it was held in a Connecticut case that a vote of the town limiting the right of fishing in a free and common fishery was void unless the meeting at which such vote was passed was spe- cially warned for that purpose, and it was also held in this case that the burden was upon the one seeking to avail himself of the benefits of such action. 36 as Davenport v. Inhabitants of town aid to railroads need not be Hallowell, 10 Me. 317; Kingsbury v. noticed in the warrant calling an Centre School Dist. in Quincy, 53 election to vote such aid. Mass. (12 Mete.) 99; Fuller v. In- Inhabitants of Ludlow v. Sikes, habitants of Groton, 77 Mass. (11 36 Mass. (19 Pick.) 317; Passage Gray) 340: The town was author- v. School Inspectors of Williams- ized in this case to vote a sum of town, 19 Mich. 330, held true as to money recommended by a committee a meeting of board of school in- previously appointed under a call in spectors; Brackett v. Whidden, 3 N. the warrant "to hear the report of H. 17; Marden v. Champlin, 17 R. any committee heretofore chosen I. 423, 22 Atl. 938; Smith v. Town and pass any vote in relation to the of Westerly, 19 R. J. 437. same." 35 Hayden v. Noyes, 5 Conn. 391; *Pinney v. Brown, 60 Conn. 164; Willard v. Borough of Killingworth, Inhabitants of Canton v. Smith, 65 8 Conn. 247. In speaking of the Me. 203. A public act authorizing doctrine as stated in the text the 174 CORPORATE ELECTIONS. g 103 Authority given at a meeting for the accomplishment of cer- tain results is not exhausted by a single vote raising an insuffi- cient amount. This sum can be increased by successive votes at adjourned meetings until sufficient is raised to effect the desired result. 36 An article in a warrant for a town meeting "to see what meas- ures the town will take to build a certain bridge, or in matters and things relating thereto," was held sufficient to authorize the raising of money for that purpose. 37 A town meeting has the inherent power to elect officers to di- rect its proceedings in case of the absence or inability of those already elected to perform those duties. 38 103. Purpose for which held; levy of taxes ; election of officers. Action can be taken, at a town meeting levying taxes and pro- viding for the expenditure during the ensuing year, of moneys thus raised. The appropriations for town purposes must be pub- lic in their character. It is not necessary in the authority for the levying of certain taxes to meet annual expenditures author- ized by law that a specific appropriation should be made for each purpose. It has been held that a vote to raise a certain sum for the expenditures of the current year is sufficient. 39 court in this case says: "This doc- ings of the town in this case, nor trine I am inclined to adopt as be- from any proof aliunde to establish ing reasonable and in analogy to the fact, the judgment is erroneous, general principles which govern such Perhaps it should appear on the face questions. The borough and the of the proceedings; but at least he town are confessedly inferior cor- who seeks to enforce the act should porations. They act not by any in- prove such warning to have been herent right of legislation, like the given." legislature of the state; but their se Farrar v. Perley, 7 Me. 404. authority is delegated and their 37 Ford v. Clough, 8 Me. (8 Greenl.) powers must therefore be strictly 334. See, also, Osgood v. Bradley, pursued. Within the limits of their 7 Me. (7 Greenl.) 411; Jewett v. charter their acts are valid; with- Burroughs, 15 Mass. 464. out it they are void. It having been ss Kellar v. Savage, 17 Me. 444; established in the case of Hayden v. Attorney General v. Simonds, 111 Noyes, 5 Conn. 391, that to render Mass. 256; Attorney General v. an act of the town precisely of this Crocker, 138 Mass. 214; Tucker v. character valid it must appear that Aiken, 7 N. H. 113; State v. Town the meeting of the town had been of Vershire, 52 Vt. 41. If a person specially warned for that purpose; is permitted to act as moderator and this not appearing on the do- without objection on the part of th 104 CORPORATE ELECTIONS. 175 Another authorized and legal purpose for which a town meet- ing can be held is the election of town officers for the coming year. The administration of the government of the town is placed in the hands of certain officials or agents who represent the corporation. 40 They act for and bind the town by their ac- tion. The officers to be elected are usually designated by law, as well as the manner of their election. 41 If, however, the stat- utes do not provide for the precise manner in which they shall be elected, usage or custom prevails. It has been held in Iowa that the word "election" in the constitution which requires "that all elections by the people shall be by ballot" has no application to meetings of electors of a township. 42 As a rule the authority of officers elected at town meetings will be upheld and their ac- tion sustained. The fact that the warrant or notice calling the meeting may be imperfect is generally held insufficient to sus- tain a collateral attack upon de facto officers or their acts done in an official capacity. 48 104. The town meeting; right and authority for holding. The town meeting is one of the essential characteristics per- voters, the legality of the meeting quiring towns to make such appro- cannot be subsequently raised be- priations specific and keep them dis- cause of this fact. tinct." 39 Tucker v. Aiken, 7 N. H. 113. * Craig v. Scandret, 8 Ky. (1 A. Here the court said: "This is a K. Marsh.) 15; Wood v. Jewell, 130 convenient mode of ascertaining the Mass. 270; Com. v. Wentworth, 145 whole amount necessary to be raised, Mass. 50 ; Kingsbury v. Centre as estimates are usually made of School Dist. in Quincy, 53 Mass, the amount which each of such ob- (12 Mete.) 99; Baker v. Shephard, jects is likely to require. But ex- 24 N. H. (4 Fost.) 208. cepting the money raised for schools Damon v. Inhabitants of Gran- and highways it is not known that by, 19 Mass. (2 Pick.) 345; Kincs- it has ever been the practice to re- bury v. Centre School Dist. in Quin- quire that the sums so designated cy, 53 Mass. (12 Mete.) 99; Order should be kept separate and dis- of Election of Town Officers, 20 R. I. tinct, so that in case of a deficiency 784. in the amount raised for one; and 42 Seaman v. Baughman, 82 Iowa, an excess in that voted for another, 216, citing Bouvier, Law Diet, tit the constituted agents could not ap- "Election"; 6 Am. & Eng. Enc. Law ply the whole of the funds raised (1st Ed.) 260; Police Com'rs v. City to the whole necessary expenditure; of Louisville, 66 Ky. (3 Bush) 597. and we are not able to discover any 43 Cottrill v. Myrick, 12 Me. 222; eood which would result from re- Inhabitants of Bucksport v. Spof- 176 CORPORATE ELECTIONS. 105 taining to the town organization. Rights enjoyed and privileges possessed are exercised at that time by the voters of the town. The authority to meet in this manner is given by law, and the right of exercising powers obtained either by usage, custom, or by statute, cannot be destroyed by a failure to exercise such power. If the corporation fails to perform its duties it may be compelled by mandamus or other proper proceeding. This prin- ciple was applied in an English case* 4 where it was held that a mandamus would lie to the corporation to proceed to the election of a mayor although there was such an officer de facto. Under the decisions in some states, a failure to elect an officer upon the designated day does not destroy the right to hold such election later; 45 though it is held in Vermont that the majority of the electors required by the act of incorporation to annually elect its trustees on a certain day have no power to adjourn a meeting at that time "without day." 46 A town meeting, however, legally called and organized, has, it is generally held, the incidental and inherent power of adjourning to meet at some appropriate place and at some future time definitely and specifically fixed in the adjournment. At such adjourned meeting it is customary and legal to transact such business as could have been properly trans- acted at the meeting as first held. 47 105. Officers and their duties. Officers duly elected and qualified are authorized to perform the duties required of them by law at town meetings whether such duties be executive, ministerial or clerical in their charac- ford, 12 Me. 487; Sherman v. Tor- loyal minority too much in the pow- rey, 99 Mass. 472. er of a disloyal majority." See, 4* Borough of Bossiny's Case, 2 also, Kimball v. Marshall, 44 N. H. Strange, 1003. 465; People v. Martin, 5 N. Y. (1 45 Coles County v. Allison, 23 111. Seld.) 22. 437; Trenton Com'rs v. McDaniel, 47 Chamberlain v. Inhabitants of 52 N. C. (7 Jones) 107; Lynch v. Dover, 13 Me. 466; Inhabitants of Lafland, 44 Tenn. (4 Cold.) 96. Canton v. Smith, 65 Me. 203. The 46 Stone v. Small, 54 Vt. 498. In adjourned meeting is a continuation following the rule laid down in the of the original one. Reed v. Inhabi- text the court said: "This we deem tants of Acton, 117 Mass. 384; Good- the only safe rule to adopt. Any el v. Baker, 8 Cow. (N. Y.) 286; other rule would open the door to Wisconsin Cent. R. Co. v. Ashland great abuse of power, and place a County, 81 Wis. 1. 106 CORPORATE ELECTIONS. 177 ter. 48 Upon the question of eligibility, Mass. St. 1898, ch. 548, 173, provides that no person shall be eligible or act as an election officer at a town election at which he is a candidate, and that upon becoming such candidate, if he does not resign, the power of removal is given to the selectmen of the town. In a late case 40 it was held that this section did not apply to moderators who were also candidates at town elections, for though acting as offi- cers at such elections their duties were merely incidental to the official duties otherwise performed by them. 106. Voters and their qualifications. The act of voting is not an inherent or inalienable right; it is a privilege ; a special mark of favor given by the state to certain individuals to be exercised by them. As was said in a Missouri ease, "It is neither a vested, an absolute, nor a natural right." 60 It being then a matter of favor, the state undoubtedly has the right to prescribe qualifications which must be possessed before the privilege can be lawfully exercised, the limitations upon such qualifications being that they be uniform and certain in their application, not based upon religious belief, and not within pro- hibitive clauses of either the Federal or state constitutions. The validity of laws prescribing such qualifications has been settled beyond doubt, a doubt arising only as to their application or con- struction. The two qualifications necessary to consider now are those based on ownership of taxable property within the town, 51 or residence for the length of time prescribed by statute. 52 No affirmative action on the part of the town authorities is necessary to constitute a person possessing the qualifications from becom- ing a citizen and a legal voter at the moment of his settlement. 53 48 Dodds v. Henry, 9 Mass. 262: of Marlboro v. Inhabitants of Free- Kimball v. Lamprey, 19 N. H. 215; hold, 50 N. J. Law, 509, 14 Atl. 595: Birge v. Berlin Iron Bridge Co., 62 Poor Dist. of Lock Haven v. Poor Hun (N. Y.) 618. Dist. of Chapman (Pa.) 13 Atl. 742; 4 Wheeler v. Carter, 180 Mass. Town of Topsham v. Town of Wil- 382, 62 N. E. 471. liamstown, 60 Vt. 467, 12 Atl. 112. BO Blair v. Ridgely, 41 Mo. 63, 97 Insanity does not interrupt the gain- Am. Dec. 248. ing of settlement in town based upon 6i Sparrow v. Wood, 16 Mass. 457; residence. Monroe County v. Jack- Oakes v. Hill, 27 Mass. (10 Pick.) son County, 72 Wis. 449, 40 N. W. 333. 224. 52 Canaan v. Grafton County, 64 3 Lord v. Chamberlain, 2 Me. (2 N. H. 595, 15 Atl. 18; Inhabitants Greenl.) 67; Bradford v. Gary, 5 Abb. Corp. 12. 178 CORPORATE ELECTIONS. 107 On the division of a town, the statute may give to those resid- ing upon the dividing line the right to select their legal settle- ment, a personal privilege to the persons so favoned. 54 107. Miscellaneous matters. It has been held an indictable offense to violently and rudely disturb a town meeting, 55 and the same is true of "repeating" at town elections. 58 The town meeting is considered a deliberative body to which, except when engaged in the election of officers, the usual rules of parliamentary law apply. 57 In New Hamp- shire, however, this rule is modified to the extent that the mod- erator may have the power to prescribe rules for the conduct of the meeting over which he presides. 58 Me. (5 Greenl.) 339; Inhabitants of Cumberland v. Prince, 6 Me. (6 Greenl.) 408; Inhabitants of West- port v. Inhabitants of Dartmouth, 10 Mass. 341; Cobb v. Kingman, 15 Mass. 197. 5* Blanchard v. Inhabitants of Cumberland, 18 Me. 113. 65 Com. v. Hoxey, 16 Mass. 385. See, also, the cases collected in 1 Saund. 135, note 3, and 1 Starkie, Cr. PI. 228, 232. 5 Walker v. Winn, 8 Mass. 248: Com. v. Silsbee, 9 Mass. 417; Brad- ley v. Heath, 29 Mass. (12 Pick.) 163. 67 Hunneman v. Inhabitants of Graf ton, 51 Mass. (10 Mete.) 454; Kimball v. Lamprey, 19 N. H. 215. In State v. Davidson, 32 Wis. 114, the court said: "The subjects upon which a town meeting may take ac- tion are numerous and diversified. The course of procedure which is to be pursued is not fully marked out by the statute and I deem it quite safe to say that when the statute does not give direction, the general rules of parliamentary law so far as they may be applicable, should be observed and enforced in conduct- ing the business of a town meeting. It will necessarily follow that prop- ositions upon which the town meet- ing may lawfully act may be submit- ted to it by motion or resolution, or in the form of proposed by-laws or orders, by any elector of the town, for the consideration of the meet- ing. It also follows from such ap- plication of the rules of parliament- ary law, that the chairman of the meeting cannot prevent action upon any subject within the powers con- ferred by law upon the meeting, by neglecting or refusing to present the same to the meeting for its action." 58 Hill v. Goodwin, 56 N. H. 441. "The moderator * * * rules as he understands that he ought to rule. If his ruling is incorrect, any per- son who is dissatisfied may appeal to the meeting, and its decision, be- ing not against the statute, is final and conclusive," CHAPTER V. THE POWERS OF PUBLIC CORPORATIONS. I. IN GENERAL. 108. General powers. 109. Implied. 110. Discretionary and imperative powers. 111. Corporate powers; their extent and nature. 112. Their delegation. 113. Rules of construction. 114. Rule of strict construction; how modified II. THE POLICE POWEB. 115. Definitions. 116. General limitations upon its exercise. 117. Constitutional limitations. 118. The preservation of public health. 119. Public agencies for the preservation of health. 120. Boards of health; their jurisdiction and powers. 121. Their liability. 122. Quarantines and quarantine regulations. 123. Police power respecting the regulation of occupations. 124. Inspection of foods. 125. Regulations as to the construction- and use of buildings. 126. Regulation and abatement of nuisances. 127. The protection of public morals. 128. Regulations controlling or suppressing gambling. 129. The police power; further illustrations of its exercise. 130. The exercise of the police power in regulating the sale and consumption of intoxicating liquors. 131. The police power; miscellaneous illustrations of its valid exercise. 132. The exercise of the police power continued; the exaction of license fees. 133. The exercise of the police power; further illustrations. 134. Establishment of public markets. 135. Public markets; the power to regulate. 136. The right to authorize private markets. 18C POWERS. 137. The control of nuisances. 138. Nuisances; their abatement and removal. 139. Objections to the removal or abatement of nuisances. III. THE POWEB TO INCUR INDEBTEDNESS OTHEB THAN BY THE ISSUE OF BONDS. 140. The corporate power to incur indebtedness. 141. Must be expressly given; it cannot be implied. 142. To what extent discretionary if expressly given. 143. Implied power of the courts to compel the payment of debts. 144. Manner of its exercise; body authorized. 145. The power limited by the purpose or use of funds to be raised. 146. The construction of buildings a public purpose. 146a. Illustrations of a "public purpose" continued; the support of the poor; water supply. 146b. "Public purposes" continued; light. 147. The construction of internal improvements. 148. Express limitations on power to incur indebtedness. 149. Same subject continued. 150. Retroactive effect of limitations. 151. Construction of statutory and other limitations. 152. Definition of the word "indebtedness" or "debt" as used In limiting laws. 153. Indebtedness must be a legal demand. 154. Debts of territorially co-existing public corporations. 155. Assessment or valuation to be considered. 156. Indebtedness further defined; warrants issued in anticipa- tion of taxes levied. 157. Expenses incurred in excess of current revenue or income. 158. Net debts; deduction of uncollected taxes. 159. Future payments under executory contracts not usually re- garded as "debts." 160. Unearned interest not considered a "debt." 161. Deduction of assets to determine net debt. 162. Corporate indebtedness; its payment from a special fund. 163. Its payment through the levy of taxes. 164. Manner of levying taxes. 165. Provision for payment at time debt was incurred. 166. Debt; mode of payment. 167.' Time and place of payment. 168. Enforcement of a debt by action. IV. THE POWEB OF PUBLIC COBPORATIONS TO INCUB INDEBTEDNESS THROUGH THE ISSUE OF NEGOTIABLE SECUBITIES. S 169. Power to issue negotiable securities. IN GENERAL. 181 170. The power to issue must be expressly given; it cannot br' implied. 171. Ratification of void issue of negotiable bonds. 172. The issue of bonds; their purpose. 173. Refunding bonds. 174. Obligations issued for the purpose of funding a bonded indebtedness. 175. The issue of negotiable securities for the construction or improvement of highways. 176. The construction of municipal lighting plants. 177. To secure a water supply. 178. Railway aid securities. 179. Construction of drains and sewers. 180. The construction of bridges. 181. The erection of public buildings. 182. For making local improvements. 183. Internal improfements. 184. The power to issue and the conditions precedent to Its ex- ercise. 185. Performance of conditions precedent required of railway companies. 186. Conditions precedent to issue. 187. Petition. 188. The calling of an election by ordinance. 189. The election. 190. Questions not necessary for submission to the electors. 191. The election; time and manner of holding. 192. Voters and their qualifications. 193. Canvass of election returns. 194. Necessary votes. 195. Negotiable securities; delivery. 196. Necessity for registration. 197. Official signatures and seals. 198. Form. 199. Recitals of authority. 200. The ratification of void securities. 201. Negotiable bonds; their validity. 202. As affected by adverse decisions of a state court 203. Validity of issue in excess of legal authority. 204. Legality as affected by subsequent legislation. 205. Securities of public corporations; their legal character. 206. Validity of negotiable securities. The doctrine of estoppel. 207. The same subject. 208. Estoppel through the payment of interest. 209. The doctrine of recitals. 210. Estoppel not applying to recitals of law. 182 POWERS. 211. Distinction between power to issue and irregularity In its exercise. 212. The doctrine as applied to bonds containing no recitals of authority. 213. Bona fide holder. 214. Coupons; their legal character. 215. Time and place of payment. 216. Negotiable securities; sale. 217. Their payment. 218. Time of payment. 219. Medium of payment. 220. To whom payable. 221. The payment of interest. 222. The rule as to the payment of void bonds. 223. Payment of securities through provisions for a sinking fund. 224. The duty to levy taxes for the payment of interest or prin- cipal of negotiable bonds. 225. Rights of a holder to maintain an action. V. WARRANTS AND MISCELLANEOUS EVIDENCE OF INDEBTEDNESS. 226. Warrants; definition; by whom drawn. 227. Fund from which payable. 228. Formal issue. 229. Audit and allowance of claims as preliminary to Issuance. 230. Their legal character. 231. Form. 232. Wording. 233. Validity. 234. Interest payable. 235. Actions on warrants. 236. Their payment. 237. Presentation for payment. 238. Payment; the amount. 239. Manner of payment. 240. Time of payment. 241. To whom payable. 242. Miscellaneous forms of indebtedness. 243. The same subject; legal character. 244. Form and phraseology. 245. Mode and time of payment. VL THE POWER TO CONTRACT. 246. In general. 247. The implied power to contract. IN GENERAL. 183 248. Ultra vires contracts. 249. For want of authority. 250. Because of purpose or result. 251. Contracts protected by constitutional provisions. 252. Contracts ultra vires because of constitutional provisions. 253. The same subject continued. 254. Contracts ultra vires because contravening some exclusive right. 255. Contracts ultra vires because of a beneficial interest resultr ing to the public officers executing them. 256. Contracts ultra vires because of fraud or bribery. 257. Contracts ultra vires because extending beyond official term. 258. Ultra vires contracts; their enforcement. 259. Availability of the doctrine of estoppel. 260. Contracts; their formal execution. 261. Presumption of legality. 262. Mode of contracting; letting to the lowest bidder. 263. Acceptance of bids. 264. Rejection of bid. 265. Notice. 266. Specifications of services or supplies required. 267. Discretionary power in officers to reject or accept bids. 268. The same subject continued. 269. Discretionary power of officials to award to lowest bidder or otherwise. 270. Change of contract. 271. Parties to the proceedings. 272. Conditions imposed. 273. Contracts; how made; in writing. 274. How made; orally. 275. By whom made. 276. As authorized by legislative bodies. 277. Contracts made by departments. 278. Made by public officials. 279. The ratification of an illegal contract. 280. Ratification of a contract ultra vires. 281. Legislative ratification of ultra vires contracts. 282. Ratification of illegal contracts. 283. Modification of a contract. 284. Avoidance or rescission of contract. 285. Contracts; their construction. 286. Arbitration clauses. 287. Corporate contracts; their performance. 288. A contract; its performance; acceptance of work. 289. Fraud as rendering a contract invalid. 290. The right of the parties to maintain an action based upon a contract. 184 POWERS. 108 291. Delay In the performance of a contract. 292. The assignment of a contract. 293. Rights of parties. 294. Payment of contract obligations. 295. Extras. 296. Public contracts; actions. 297. Bond required of contractors. 298. Rights of sureties. 299. Subcontractors. I. IN GENERAL. 108. General powers. A public corporation is an agency of government created by the sovereign when such action seems most conducive to the public good, for the purpose of aiding in the exercise and administration of governmental functions. 1 A corporation, either public or pri- i Barnes v. District of Columbia, 91 U. S. 540. In the opinion of Mr. Justice Hunt is found the fol- lowing language: "A municipal corporation in the exercise of all of its duties, including those most strictly local or internal, is but a Department of the state. The legis- lature may give it all the powers such a being is capable of receiving, making it a miniature state within its locality. Again; it may strip it of every power, leaving it a corpora- tion in name only; and it may cre- ate and recreate these changes as often as it chooses, or it may itself exercise directly within the locality any or all the powers usually com- mitted to a municipality. We do not regard its acts as sometimes those of an agency of the state, and at others those of a municipality; but that, its character and nature remaining at all times the same, it is great or small according as the legislature shall extend or contract the sphere of its action." Tippeca- noe County Com'rs v. Lucas, 93 U. S. 108. "Municipal corporations are mere instrumentalities of the state for the convenient administration of government and their powers may be qualified, enlarged, or withdrawn, at the pleasure of the legislature." The court in its opinion by Mr. Jus- tice Field also say in regard to leg- islative control of the property of public corporations, "Their tenure of property, derived from the state for specific public purposes, or obtained for such purposes through means which the state alone can authorize, that is, taxation, is so far sub- ject to the control of the legislature, that the property may be applied to other public uses of the municipal- ity than those originally designated. This follows from the nature of such bodies, and the dependent character of their existence. But property, de- rived by them from other sources, is often held, by the terms of its grant, for special uses, from which it cannot be diverted by the legis- lature. In such cases, the property is protected by all the guards against legislative interference pos- sessed by individuals and private 108 IN GENERAL. 185 vate, is a creature of limited powers. Such powers as it possesses are to be found in the charter of its creation, which has been held to include not only the act of incorporation, whether a special or general law, but constitutional provisions and also decisions of the highest courts construing and applying these acts and provi- sions. In this charter, used thus in its broad sense, is to be found the powers which may be legally exercised by the corporation. 2 corporations for their property. And there would seem to be reasons equally cogent, in abstract justice, against a diversion by the legisla- ture from the purposes of a munic- ipality of property raised for its use by taxation from its inhabitants." United States v. City of New Or- leans, 98 U. S. 381; Stoutenburgh v. Hennick, 129 U. S. 141; Goldthwaite v. City of Montgomery, 50 Ala. 186; Low v. City of Marysville, 5 Cal. 214. Object of creation government- al not commercial. Jacksonville Elec. Light Co. v, City of Jackson- ville, 36 Fla. 229; Harmon v. City of Chicago, 110 111. 400. The state as sovereign may resume the exer- cise of any powers granted to subor- dinate agencies whenever it is deemed expedient. Herbert v. Ben- son, 2 La. Ann. 770; Police Jury of Bosster v. Shreveport Corp., 5 La. Ann. 661; Heistand v. City of New Orleans, 14 La. Ann. 330; State v. Garibaldi, 44 La. Ann. 809; Hooper v. Emery, 14 Me. 375; Inhabitants of Camden v. Camden Village Corp., 77 Me. 530; City of St. Louis v. Clemens, 43 Mo. 395; Ewing v. Ho- blitzelle, 85 Mo. 64. "Public cor- porations are the auxiliary of the state in the important business of municipal rule and are called into being at the pleasure of the state, and the same voice which speaks them into existence can speak them out." But see later Missouri cases modifying this decision somewhat. Murnane v. City of St. Louis, 123 Mo. 479, which holds "that the im- portant business of municipal rule is a local and not a state matter." See authorities cited under section 82 with the discussion of the arbitrary right of a state to destroy the corpo- rate existence of any of its subordi- nate agencies. See, also, Dillon, Mun. Corp. (4th Ed.) note 1, p. 127, and Cooley, Taxation (2d Ed.) p. 678, where Judge Cooley observes, "But in the general framework of our re- publican governments nothing is more distinct and unquestionable than that they recognize the exist- ence of local self-government and contemplate its permanency. Some state constitutions do this in ex- press terms; others by necessary implication, and probably in no one of the states has the legislature been entrusted with the power which would enable it to abolish the local governments." People v. Common Council of Detroit, 29 Mich. 108, which holds that municipalities have a constitutional right to local self- government. 2 City of Detroit v. Detroit City R. Co., 56 Fed. 867; City of Mo- bile v. Dargan, 45 Ala. 310; Low v. City of Marysville, 5 Cal. 214; City of Oakland 'v. Carpentier, 13 Cal. 540, where it is said, "A corporation owing its existence to the laws is precisely what the law makes it." People v. Henshaw, 76 Cal. 436; Kyle v. Malin, 8 Ind. 34; Field v. 186 POWERS. 108 Judge Dillon in his work on municipal corporations 3 classifies the powers possessed as follows: "(1) Those granted in express words; 4 (2) those necessarily or fairly implied in or incident to the powers expressly granted; 8 (3) those essential to the declared City of Des Moines, 39 Iowa, 575; City of Leavenworth v. Norten, 1 Kan. 432; First Municipality of New Orleans v. General Sinking Fund Com'rs, 1 Rob. (La.) 279; Inhab- itants of Camden v. Camden Village Corp., 77 Me. 530; Cooper v. Alden, Har. (Mich.) 72; Hitchcock v. City of St. Louis, 49 Mo. 484; Kansas City v. Lorber, 64 Mo. App. 604; People v. Bagley, 85 Cal. 343; Bor- ough of Greensburg v. Young, 53 Pa. 280; Appeal of Whelen, 108 Pa. 162; Gabel v. City of Houston, 29 Tex. 335; Williams v. Davidson, 43 Tex. 1. See, also, authorities cited under 4-7. s Dillon, Mun. Corp. (4th Ed.) 89. See, also, the following cases among many others giving the same classi- fication or one substantially similar. Freeport Water Co. v. City of Free- port, 180 U. S. 587; affirming 186 111. 179; Town of New Decatur v. Berry, 90 Ala. 432; Reis v. Graff, 51 Cal. 86; -Phillips v. City of Den- ver, 19 Colo. 179; City of New Lon- don v. Brainard, 22 Conn. 552; Hue- sing v. City of Rock Island, 128 111. 465; Champer v. City of Green Cas- tle, 138 Ind. 339; Hanger -v. City of Des Moines, 52 Iowa, 193; Henke v. McCord, 55 Iowa, 378; Cook v. Dendinger, 38 La. Ann. 261; State v. Robertson, 45 La. Ann. 954; Low- ell v. City of Boston, 111 Mass. 454; State v. Murphy, 134 Mo. 548; Da- venport v. Kleinschmidt, 6 Mont. 502; City of New York v. Dry Dock, E. B. & B. R. Co., 133 N. Y. 104; Smith v. City of Newbern, 70 N. C. 14; State v. Webber, 107 N. C. 962; City of Corvallis v. Carlile, 10 Or. 139; City of Portland v. Schmidt, 13 Or. 17; Sharpless v. City of Phil- adelphia, 21 Pa, 147; Williams v. Davidson, 43 Tex. 33; City of Bren- ham v. Brenham Water Co., 67 Tex. 542; Village of St. Johnsbury v. Thompson, 59 Vt. 300; Kirkham v. Russell, 76 Va. 956; Lynchburg & R. St. R. Co. v. Dameron, 95 Va. 545; Clarksburg Elec. Light Co. v. City of Clarksburg, 47 W. Va. 739; Bell v. City of Platteville, 71 Wis. 139. * Board of Liquidation of City Debt v. Louisville & N. R. Co., 109 U. S. 221; Low v. City of Marys- ville, 5 Cal. 214. Dailey v. City of New Haven, 60 Conn. 314, where the court say: "It is a rule of great public utility and courts should rec- ognize and enforce it as a safeguard against the tendency of municipali- ties to embark in enterprises not germane to the objects for which they are incorporated." Crofut v. City of Danbury, 65 Conn. 294 ; Kyle v. Malin, 8 Ind. 34; Town of Kirk- wood v. Meramec Highlands Co., 160 Mo. 111. B In re Lee Tong, 18 Fed. 253, the court speaking through Judge Deady says: "Apart from the few facul- ties considered incident to its exist- ence, such as the capacity to sue and be sued, and have a common seal, a municipal corporation has no power to do any act except such as are essential to the plain purpose of its creation, or are authorized by 108 IN GENERAL. 187 offices and purposes of the corporation, not simply convenient but indispensable. ' ' 6 This classification and statement has been approved by many courts. The exercise of the governmental powers thus conferred upon public corporations is not optional. They are political sub- ordinate divisions of the state organized as a part of its machin- ery of administration. Their duties are wholly of a public nature and their creation a matter of public convenience or governmental necessity. In order that they may better carry out the purposes for which they are created certain powers are conferred on them, and whether they will assume and exercise these powers or per- form the duties imposed are matters with which they have no concern. The exercise of public powers is held involuntary. 7 the express provisions of its char- ter, or a clear or necessary implica- tion therefrom. Under this rule, be- fore it can be concluded that the power to punish persons for keeping gambling houses and gaming is in- cluded in the power to suppress the same, it must clearly appear from the language of the grant, read by the light of the circumstances of the case, that such was the intention of the legislature. If there is a reason- able doubt about the implication of the power, it must be resolved against its exercise." Scott's Ex'rs v. City of Shreveport, 20 Fed. 714; Ex parte Burnett, 30 Ala. 461; Doug- lass v. City of Placerville, 18 Cal. 643; City of New London v. Brain- ard, 22 Conn. 552. Dailey v. City of New Haven, 60 Conn. 314, where the court say: "Even towns which un- der our peculiar political history and policy * * * possessed because of their independent character, large original powers were held to have no original or inherent powers what- ever but only such as are either ex- pressly granted by the legislative power of the state or are necessary to the performance of their duties as territorial and municipal corpora- tions." Sherlock v. Village of Win- netka, 68 111. 530; City of Mt. Pleas- ant v. Breeze, 11 Iowa, 399; John- ston v. City of Louisville, 74 Ky. (11 Bush) 527; City of Charleston v. State, 2 Speers (S. C.) 719; Miller v. Burch, 32 Tex. 208. e Scott's Ex'rs v. City of Shreve- port, 20 Fed. 714; McFarlain v. Town of Jennings, 106 La. 541, 31 So. 62; Town of Kirkwood v. Mera- mec Highlands Co., 160 Mo. 111. Power to create a monopoly not an implied one. See cases cited under last preceding note. 7 Granger v. Pulaski County, 26 Ark. 37: "Their functions are whol- ly of a public nature, and their cre- ation a matter of public convenience and governmental necessity, and in order that they may the better sub- serve the public interest, certain corporate powers are conferred on t-iem. Whether they will assume their corporate powers end perform the duties and obligations imposed, are questions over which they have no choice, but their assumption is wholly involuntary." See, also, the following cases: Town of Waltham 188 POWERS. 108 They have the full power to pass rules and regulations for the carrying out of the duties entrusted to them, and usually granted to corporations of similar character. 8 A late author on general law, 9 in discussing the powers exercised by a public corporation, states: "A municipal corporation ordinarily possesses several distinct classes of power. First, those strictly political or gov- ernmental, pertaining to the police and governments, in which they are the mere agents of the state. 10 A second class, such as the public are always interested in, namely, schools, hospitals and the like. 11 A third class, only quasi public in their nature, such, for instance, as gasworks, waterworks for fire protection, electric lighting plants, and the like. Courts of different states do not agree in classifying these functions as public or private, but most American cities possess them. 12 A fourth class, private prop- erty." 13 The author would suggest as a better classification of powers to be exercised by municipal corporations proper, those possessed in their capacity, first, as agents of the government; second, as municipal corporations proper; third, as private corporations, and in case of public corporations other than municipal corpora- tions proper, first those possessed as agents of the government, and second, as private corporations. The powers exercised by all public corporations, as suggested, must be found in the charter of the corporation, this charter being based upon either a public or special act, 14 limited and controlled v. Kemper, 55 111. 346; White v. " Hearns v. Waterbury Hospital, County of Bond, 58 111. 297; Hill v. 66 Conn. 98; Speight . People, 87 City of Boston, 122 Mass. 344; Brab- 111. 595; Benton r. Trustees City ham v. Hinds County Sup'rs, 54 Hospital of Boston, 140 Mass. 13. Miss. 363. See, also, cases cited 12 City of Walla Walla v. Walla 110, post. Walla Water Co., 172 U. S. 1; El- sReddick v. People, 82 111. App. more v. Drainage Com'rs, 135 111. 85. See authorities cited under 269; Hill v. City of Boston, 122 109, post. Mass. 344; Springfield F. & M. Ins. s Andrews' American Law, p. 502. Co. v. Village of Keeseville, 148 N. 10 White v. County of Bond, 58 111. Y. 46. 297; Hill v. City of Boston, 122 Mass. "Safety Insulated Wire & Cable 344; Bigelow v. Inhabitants of Ran- Co. v. City of Baltimore, 66 Fed. dolph, 80 Mass. (14 Gray) 541; 140; People v. Hurlbut, 24 Mich. 44; Eastman v. Meredith, 36 N. H. 284; Hill v. City of Boston, 122 Mass. 344. Moffitt v. City of Asheville, 103 N. C. Trustees of Dartmouth College 237. v. Woodward, 4 Wheat. (U. S.) 518; 108 IN GENERAL. 189 by constitutional provisions and construed by judicial decisions. 15 Some cases also hold that powers enjoyed and exercised without interruption or objection for many years may be legally exercised by such corporations through the doctrine of prescription, but the weight of authority is against any increase or enlargement of the powers of a public corporation through the application of this doctrine and even in those states where occasional cases are found favoring the acquirement of a power by usage, the courts hold that the usage should be general and reasonable. The tendency is to a restriction and limitation of the powers capable of being legally exercised by public corporations. 16 In England, the cases generally hold that public corporations may legally exercise pow- ers by virtue of long established custom or usage from which an original grant of power by legal authority will be presumed. 17 Thomson v. Lee County. YU U. S. (3 Wall.) 327; City of Mobile v. Moog, 53 Ala. 561. "Sovereignty resides only in the entire state. In the- municipal or other local communi- ties thereof, or in their magistra- cies, there is no such thing as an inherent and independent authority or right to govern, by which the communities themselves or any of the members thereof must be legal- ly bound. Submission is due to the obligations which such bodies under- take to impose only so far as the state, in the exercise of its sover- eign powers for the general good, has delegated authority to create them." Town of Petersburg v. Map- pin, 14 111. 193; Stewart v. Adams, 50 Kan. 560; McManning v. Farrar, 46 Mo. 376; People v. Mitchell, 35 N. Y. 551. See, also, 22-31. is Madden y. Lancaster County, 65 Fed. 188; Robert J. Boyd Pav. & Contr. Co. v. Ward, 85 Fed. 27; Kansas City v. Scarritt, 127 Mo. 642. i In Attorney General v. Bank of Newbern, 21 N. C. (1 Dev. & B. Eq.) 216, the court say: "Their acts con- temporaneously, and continued con- sistently through a period of eigh- teen years, are such strong proof of the sense in which the act was un- derstood by those who passed it, as to make their construction almost as authoritative, as if the words ad- mitted of no other." Butler v. City of Charlestown, 73 Mass. (7 Gray) 12. "The first suggestion to be made on this point is, that in cities where the corporation acts only through officers whose powers are limited and defined by law, the court would be slow to sanction any usage en- larging those powers." Benoit v. Inhabitants of Conway, 92 Mass. (10 Allen) 528; Willard v. Inhab- itants of Newburyport, 29 Mass. (12 Pick.) 227; Frazier v. Warfield, 13 Md. 279; Spaulding v. City of Low- ell, 40 Mass. (23 Pick.) 71; Dem- arest v. Inhabitants of New Barba- does, 40 N. J. Law, 604; City of Camden v. Varney, 63 N. J. Law, 325; Wetmore v. Story, 22 Barb. (N. Y.) 414. IT Attorney General v. Bank of Newbern, 21 N. C. (1 Dev. & B. Eq.) 216; Chad v. Tilsed, 5 Moore, 185; Clark v. Denton, 1 Barn. & Adol. 92; Rex v. Grout, 1 Barn. & Adol. 104; Rex v. Sal way, 4 Man. & R. 314; 190 POWERS. The application of the American rule does not, however, prevent the courts from establishing the meaning of an ambiguous grant of power by following the custom or usage of the corporation or its inhabitants in its exercise. This is especially true where the manner in which a power is to be exercised is the question at issue. 18 109. Implied. Public corporations, by the weight of authority, possess not Id., 9 Barn. & C. 424; Rex v. Gold- smith, 4 Barn. & Adol. 835; Attor- ney General v. Foster, 10 Ves. 335; Rex v. Mashiter, 6 Adol. & E. 153. is Van Hostrup v. City of Madison, 68 U. S. (1 Wall.) 291, and Meyer v. City of Muscatine, 68 U. S. (1 Wall.) 384, hold that a municipality will be estopped from denying the construction already given by it to an ambiguous charter provision where such construction has been accepted by third parties in good faith and where a different one will result in a serious injury to them. See also as illustrating this same proposition the case of St. Louis Brewing Ass'n v. City of St. Louis, 140 Mo. 419, where the court said: "If any doubts could exist as to the proper construction of this ordi- nance, they are put at rest by the evident construction the city itself placed upon it which appears from the fact that no amendment was deemed necessary." Frazier v. Warfield, 13 Md. 279. "Doubtful words in a general stat- ute may be expounded with refer- ence to a general usage and when a statute is applicable to a particu- lar place only, such words may be construed by usage at that place." Smith v. Inhabitants of Cheshire, 79 Mass. (13 Gray) 319; Kimball v. Brawner, 47 Mo. 398; Sherwin v. Bugbee, 16 Vt. 439. "In constru- ing statutes applicable to public corporations, courts will attach no slight weight to the uniform prac- tice under it if this practice has been continued for a considerable period of time." But see Wetmore v. Story, 22 Barb. (N. Y.) 414; Hood v. City of Lynn, 83 Mass. (1 Allen) 103, where the court said in considering an illegal appropriation of money claimed to be valid on the ground of custom, "An unlawful expenditure of money of a town cannot be rendered valid by usage, however long continued. Abuses of power and violations of right de- rive no sanction from time or cus- tom. A casual or occasional exer- cise of a power by one of a few towns will not constitute usage. It must not only be general, reason- able and of long continuance, but, what is more important it must also be a custom necessary to the exercise of some corporate power, or the enjoyment of some corporate right, or which contributes essen- tially to the necessities and con- venience of the inhabitants. The usage relied on in the present case, if established, would not satisfy either of these last named requisites, which are necessary to give it valid- ity." 109 IN GENERAL. 191 only those powers granted in express words but also those neces- sarily or fairly incident to the powers expressly granted and those implied because essential to the declared offices and pur- poses of the corporation. It is comparatively easy to give the classification of powers or to state a general rule of application which will control the courts in passing upon the legality of an act done by a public corporation under authority of some power which it is claimed to possess. Among the implied powers legally exercised by public corporations are those which may be termed usual municipal powers. 19 The courts recognize the fact that public corporations are organized not only as governmental agen- cies but also for the purpose of enabling the people of a particular locality to govern themselves in respect to their local matters. In Minnesota such corporations, it is declared, "shall have the general powers possessed by municipal corporations at common law." 20 And a Michigan case decided that municipal organiza- tions in Michigan were of "common-law origin and having no less than common-law franchises." 21 In a discussion of the doctrine i City of Ottawa v. Carey, 108 U. S. 110; Baumgartner v. Hasty, 100 Ind. 575; Mayo v. Dover & Fox- croft Village Fire Co., 96 Me. 539. Aurora Water Co. v. City of Auro- ra, 129 Mo. 540. "There are many implied powers which attach them- selves to municipal corporations, in- herent powers which belong to them because they are municipal corpora- tions just as certain powers are in- herent in courts (and their public agencies) because of the very na- ture and attributes of their organi- zation." Skyes v. City of Columbus, 55 Miss. 115; Le Couteulx v. City of Buffalo, 33 N. Y. 333; City of Wil- liamsport v. Com., 90 Pa. 498. Butler v. City of Milwaukee, 15 Wis. 493. "Implications of author- ity in bodies corporate, more espe- cially those created for municipal purposes, should be clear and un- doubted, and the party claiming through them should be able to point them out with certainty and precision. The fact that he cannot, is conclusive that they do not ex- ist. Mere general arguments drawn from the convenience of possessing a power under certain circumstances in case of emergency conclusions that, if possessed, it might be bene- ficially exercised, are very danger- ous sources of corporate authority. It was with such that the counsel was obliged to present this case. Implications spring from the neces- sities of some power actually con- ferred, and not from notions of what would be convenient or ex- pedient under particular circum- stances. Hence this case differs ma- terially from that of Miller v. City of Milwaukee, 14 Wis. 642." 20 Laws Minn. 1899, p. 51. 21 People v. Hurlbut, 24 Mich. 44. See, also, Butler v. City of Milwau- kee, 15 Wis. 493. 192 POWERS. 109 of implied municipal powers, it is also well to remember that a grant of power carries with it all the necessary incidents to make that grant effectual. 22 To enact ordinances. Among the implied powers falling as the occasion may require either under one or the other of the classes above given is that to enact ordinances. The power or right of a corporation, private or public, to adopt such by-laws as it may deem proper for its own internal government in harmony with its charter, the laws and the constitution of the state and the gen- eral law of the land is not seriously questioned. 23 The applica- tion of this principle is restricted, of course, by the grade or character of the corporation, the purpose for which it is organ- ized and the limitations first suggested in this paragraph. 2 * Public offices. Another implied power possessed by municipal corporations is that of creating or instituting certain public offices and officials where such are necessary to the proper performance of the functions or duties imposed or required by law of the cor- poration. 25 22 McCulloch v. State of Maryland, 4 Wheat. (U. S.) 316; People v. City & County of San Francisco Sup'rs, 27 Cal. 655; Agnew v. Brail, 124 111. 312; City of Anderson v. O'Conner, 98 Ind. 168; Grimes v. Hamilton County, 37 Iowa, 290; Walnut Tp. v. Rankin, 70 Iowa, 65; McFarlain v. Town of Jennings, 106 La. 541; Prout v. Inhabitants of Pittsfield Fire Dist., 154 Mass. 450; Ex parte Marmaduke, 91 Mo. 228; City of St. Louis v. Shoenbusch, 95 Mo. 618; Sheidley v. Lynch, 95 Mo. 487; State v. Walbridge, 119 Mo. 383. State v. Missouri, K. & T. R. Co., 164 Mo. 208. "Where an express power is given, all the power neces- sary to carry it into effect is im- plied. That which is implied is as much a part of the statute as if written therein. The statute pro- vides for an election, and requires a two-thirds majority of the quali- fied voters to ratify the contract. Such a contract necessarily Involves the creation of an indebtedness. The city could not get water without paying for it, and the legislature could not have intended it to do oth- erwise." Peterson v. City of New York, 17 N. Y. 449; Ketchum v. City of Buffalo, 21 Barb. 294; af- firmed 14 N. Y. 356; Shanklin v. Madison County Sup'rs, 21 Ohio St. 575; Linn v. Borough of Chambers- burg, 160 Pa. 511. 23 Lambert v. Thornton, 1 Ld. Raym. 91; City of Mobile v. Yuille, 3 Ala. 137; Chamberlain v. City of Evansville, 77 Ind. 542; A Coal- Float v. City of Jeffersonville, 112 Ind. 15; Cross v. Town of Morris- town, 33 N. J. Law, 57; City of Nashville v. Linck, 80 Tenn. (12 Lea) 499. 24 State v. Hammond, 40 Minn. 43; Littlefield v. State, 42 Neb. 223. 25 Lowry v. City of Lexington, 113 Ky. 763, 68 S. W. 1109; Collopy v. 1C9 IN GENERAL. 193 To acquire and hold property. A public corporation has also the implied power, unless restricted by law, to acquire and hold such property whether real, personal or mixed as may be neces- sary or convenient to enable it to either exercise powers directly granted or to perform properly the functions of government for which it was created. 26 This power to acquire property has been considered sufficient to authorize the purchase of property be- yond the jurisdiction of the corporation where this was necessary for the proper government of a municipality. 27 In regard to the implied power of public corporations to dispose of property either by transfer, donation or dedication, to mortgage or pledge the same, see the chapter relating to public property, its acquirement and disposal. The police power. A public corporation unquestionably has the implied right to exercise the police power and to accomplish this purpose, to pass and enforce such police and sanitary regula- tions and ordinances as may be necessary and as such public cor- porations may deem expedient. The right to properly exercise the police power has been invoked as the basis of an implied power to supply the inhabitants of a municipal corporation proper with water and light. Of the soundness of this proposition, espe- cially in regard to the latter, there is grave question. 28 Miscellaneous implied powers. Public corporations and espe- cially municipal corporations proper possess, in addition to the implied powers suggested above, the right to make and use a common seal and alter it at pleasure; the power to sue and be Cloherty, 95 Ky. 330; Boehm v. City 98 111. 491; Newman v. Ashe, 68 of Baltimore, 61 Md. 259; State v. Tenn. (9 Baxt.) 380. But see Thomp- May, 106 Mo. 488. son v. Moran, 44 Mich. 602. 26 De Witt v. City of San Fran- 23 Rae v. City of Flint, 51 Mich, cisco, 2 Cal. 289; Sheidley v. Lynch, 526; Webb City & C. Waterworks 95 Mo. 487; People v. Lowber, 28 Co. v. Webb City, 78 Mo. App. 422; Barb. (N. Y.) 65; Le Couteulx v. Saleno v. City of Neosho, 127 Mo. City of Buffalo, 33 N. Y. 333; In re 627; Atlantic City Waterworks Co. City of Buffalo, 68 N. Y. 167. See, v. Atlantic City, 39 N. J. Eq. (12 also, Von Schmidt v. Widber, 105 Stew.) 367; Sayre Borough v. Phil- Cal. 151, and pertinent authorities lips, 148 Pa. 482. See, also, post, cited in the chapter relating to pub- 115 et seq. upon the police power lie property, its acquirement, con- and its exercise also those sec- trol and disposal. tions discussing municipal water 27 City of Champaign v. Harmon, and light supply. Abb. Corp. 13. 194 POWERS. HO sued; complain and defend in any court; acquire a name and by that name to have perpetual succession and to exercise such pow- ers as are recognized necessary to the existence of corporate life of the character and kind possessed by public corporations. The express action of the state in respect to any of the powers noted will, of course, control the corporation in the exercise of such power. In the absence of direct affirmative action, the statement above in regard to implied powers is undoubtedly true. 29 110. Discretionary and imperative powers. The classification as given by Judge Dillon needs no further explanation. There is found however upon an examination of the authorities, another division of powers not co-ordinate or co- extensive with the one given, but based upon the idea that a pub- lic corporation may possess powers granted to it by the sovereign the exercise of which is optional ; 30 there also may be other powers granted to it the exercise of which is not a matter of choice. We have, then, imperative powers or those whose exercise is obliga- tory upon the public corporation and the performance of which can be compelled by proper process; 31 and discretionary powers or those to be exercised or not within the sound discretion of the officers controlling public affairs. 29 Girard v. City of Philadelphia, ^ Mason v. Fearson, 9 How. (U. 74 U. S. (7 Wall.) 1; City of Gaines- S.) 248; Vason v. City of Augusta, ville v. Caldwell, 81 Ga. 76; Johnson 38 Ga. 542; City of Ottawa v. Peo- v. City of Indianapolis, 16 Ind. 227; pie, 48 111. 233. In this case it was Neely v. Town Council of York- held that mandamus would lie to ville, 10 S. C. (10 Rich.) 141; Rich- compel town authorities to main- ards v. Town of Clarksburg, 30 W. tain certain bridges where the act Va. 491. granting the original authority pro- 30 City of Joliet v. Verley, 35 111. vided "that said bridges when con- 58. A municipality cannot be com- Btructed shall be maintained, re- pelled by the courts to open streets paired, and opened to the passage notwithstanding the obligation rest- of boats." Watts v. Police Jury of ing upon it to minister to the con- Carroll, 11 La. Ann. 141. Here the venience of the people within It. levy of a tax was compelled by Sinking Fund Com'rs v. Northern mandamus. Inhabitants of Veazie Bank, 58 Ky. (1 Mete.) 174; Reed v. Inhabitants of China, 50 Me. 518; v. City of Louisville, 22 Ky. L. R. Inhabitants of Milford v. Inhab- 1636, 61 S. W. 11; St. Joseph Board Hants of Orono, 50 Me. 529; City of Public Schools v. Patten, 62 Mo. of New York v. Furze, 3 Hill (N. 444. The legislature of a state can- Y.) 612; Malcom v. Rogers, 5 Cow not be compelled to make laws. (N. Y.) 188; Hemmer T. Hustace, no IN GENERAL. 195 Their exercise. Powers conferred on public corporations to be exercised for the public good, involving the performance of governmental duties, are imperative in their nature. 32 They become a duty and their performance an obligation. The lan- guage used in conferring a power does not determine its charac- ter. Words of permission in a charter, it is held, if they tend to promote the public benefit, are obligatory. And it is also true that where the law imposes a duty and supplies the agencies for performing it, it is to be considered as imperative in character. 33 The imperative powers granted or imposed upon public corpora- tions cannot be abridged, surrendered or destroyed by any act of the corporation itself. 3 * And the converse of this rule, that a 51 Hun (N. Y.) 457; Phelps v. Haw- ley, 52 N. Y. 23. 32 Goodrich v. City of Chicago, 20 111. 445; District Tp. of Dubuque v. City of Dubuque, 7 Iowa, 262; Middle Bridge Proprietors v. Brooks, 13 Me. 391; City of Baltimore v. Marriott, 9 Md. 160; Anne Arundel County Com'rs v. Duckett, 20 Md. 468; Blake v. Portsmouth & C. R. Co., 39 N. H. 435; Kennelly v. Jer- sey City, 57 N. J. Law, 293; Arnold v. City of Pawtucket, 21 R. I. 15. 33 Rex v. Town of Hastings, 5 Barn. & Aid. 692, note. In Hurford v. City of Omaha, 4 Neb. 336, the court say: "It sometimes becomes a very grave question in the con- struction of statutes whether par- ticular provisions are to be regarded as mandatory or directory. It Is, however, a familiar principle that statutes relating merely to matters of convenience or to the orderly and prompt conduct of business and not to the essence of the thing to be done, are generally considered as directory only but this doctrine has been carried so far in some cases that it seems impossible to reconcile all the cases in which the question has been considered and if equal force were given to each case found in the books it would be a fruitless effort to attempt to fix any settled discriminate point between a man- datory and a directory statute." People v. Otsego County Sup'rs, 51 N. Y. 401; Phelps v. Hawley, 52 N. Y. 23. "Where persons or the public have an interest in having the act done by a public body, 'may' in such a statute means 'must.' " Malcom v. Rogers, 5 Cow. (N. Y.) 188; Kelley v. City of Milwaukee, 18 Wis. 83. s* City of New York v. Second Ave. R. Co., 32 N. Y. 261. See, also, Dillon, Mun. Corp. (4th Ed.) cases cited, note 3, p. 156, and McQuillin Mun. Ord. 84; Goszler v. Corpora- tion of Georgetown, 6 Wheat. (U. S.) 593; Clark v. City of Washing- ton, 12 Wheat. (U. S.) 40; Conti- nental Const. Co. v. City of Altoona, 92 Fed. 822; City Council of Mont- gomery v. Capital City Water Co., 92 Ala. 361; City of Oakland v. Carpentier, 13 Cal. 540; Carlyle Water, L. & P. Co. v. City of Carlyle, 31 111. App. 325; Illinois Cent. Hos- pital for Insane v. City of Jackson- ville, 61 111. App. 199; City of Val- paraiso v. Gardner, 97 Ind. 1; New Orleans Gas Light Co. v. City of New Orleans, 42 La. Ann. 188; State 196 POWERS. no public corporation cannot by any act of its own increase its powers, is also true. This is especially true of powers granted involving the right of legislation. On the other hand, those duties or powers conferred upon a public corporation which are not made obligatory in their performance or exercise, either by the language of the statute conferring the power or by the character or nature of the act to be done, may be considered as discretion- ary and optional so far as their performance or exercise by the corporation. 35 The legislature cannot compel the performance, by a public corporation, of a discretionary power. A corporate act if done by the exercise of a prohibited power cannot be vali- dated by its subsequent recognition. 38 The exercise of discretion- ary powers, 37 as well as the manner of such exercise when not v. Graves, 19 Md. 351; Gale v. Vil- lage of Kalamazoo, 23 Mich. 344; Jefferson City v. Courtmire, 9 Mo. 692; National Waterworks Co. v. City of Kansas, 20 Mo. App. 237; Attorney General v. Lowell, 67 N. H. 198; Louisville City R. Co. v. City of Louisville, 71 Ky. (8 Bush) 415; In re Opening of Albany St., 6 Ahb. Pr. (N. Y.) 273; City of New York v. Britton, 12 Abb. Pr. (N. Y.) 367, note. ss Goodrich v. City of Chicago, 20 111. 445; Merrill v. Shaw, 5 Minn. 148 (Gil. 113); St. Joseph & D. C. R. Co. v. Buchanan County Ct., 39 Mo. 485; State v. City of St. Louis, 158 Mo. 505; Spears v. City of New York, 72 N. Y. 442; Carr v. North- ern Liberties, 35 Pa. 324; Grant v. City of Erie, 69 Pa. 420. Kelley v. City of Milwaukee, 18 Wis. 83. In this case the court said in discussing the difference between imperative and discretionary pow- ers that "in some cases where an authority is conferred in permissive language merely, it is still held to be imperative if third persons have an absolute right to have it exer- cised. But it is obvious that this principle cannot be applied to dis- cretionary powers. For so soon as it is determined that it is discre- tionary whether to exercise the au- thority or not, it follows that there are no persons who have the right to insist on its exercise. To deter- mine whether such a power is dis- cretionary or not, the nature of the power itself and the rights of in- dividuals in respect to its exercise must be looked at." se McPherson v. Foster, 43 Iowa, 48. See, also, Western Jurist, Jan- uary, 1872, for a full discussion of the subject. 37 Public corporations generally possess a wide discretion both in re- gard to the opening of public streets or highways and their improvement, including the construction and es- tablishment of drains, sewers, side- walks, pavements or crosswalks. Brush v. City of Carbondale, 78 111. 74; Fulton v. Cummings, 132 Ind. 453; Certain Inhabitants of Melpomerie St. v. City of New Or- leans, 14 La. Ann. 452; Hovey v. Mayo, 43 Me. 322; Methodist Protest- ant Church v. City of Baltimore, 6 Gill (Md.) 391; Skinker v. Heman, HO IN GENERAL. 197 specified by the grant of authority, 38 is, as indicated by the plain meaning of the words, left to the discretion of the corporation and of its officials having in charge the management or the trans- action of the specific act. 39 Courts are not permitted, nor do they assume, the right to exercise any restraining or other influence in regard to the performance or nonperformance of discretionary duties unless questions are involved of bad faith, fraud, corrup- tion or the invasion of private rights. 40 And even under such 64 Mo. App. 441; Seibert v. Tiffany, Gill, 31 Md. 375; Page v. City of 8 Mo. App. 33; Farrar v. City of St. St. Louis, 20 Mo. 136; Lockwood v. Louis, 80 Mo. 379; Wiggin v. City City of St. Louis, 24 Mo. 20; Heman of New York, 9 Paige (N. Y.) 16; v. Schulte, 166 Mo. 409; Lincoln St. People v. Queens County Sup'rs, R. Co. v. City of Lincoln, 61 Neb. 131 N. Y. 468; and Teegarden v. 109; Poillon v. City of Brooklyn, City of Racine, 56 Wis. 545. See 101 N. Y. 132; City of Cincinnati v. generally United States v. City of Gwynne, 10 Ohio, 192; Markle v. New Orleans, 31 Fed. 537; Danielly Town Council of Akron, 14 Ohio, v. Cabaniss, 52 Ga. 211; Sheridan 586; Kelley v. City of Milwaukee, v. Colvin, 78 111. 237; City of Rich- 18 Wis. 83; Union Pac. R. Co. v. mond v. McGirr, 78 Ind. 192; Kitch- Ryan, 2 Wyo. 408; Id., 113 U. S. el v. Union County Com'rs, 123 Ind. 516. 540; Jones v. Pendleton County Ct. 39 The exercise of a discretionary (Ky.) 19 S. W. 740; Droz v. Parish municipal power should, however, of East Baton Rouge, 36 La. Ann. be reasonable both as to its mode 307; Baker v. City of Boston, 29 and time. Kirkham v. Russell, 76 Mass. (12 Pick.) 184; Spaulding v. Va. 956. City of Lowell, 40 Mass. (23 Pick.) 40 City of East St. Louis v. Zeb- 71; Torrent v. City of Muskegon, i ey , no U. S. 321. "No court has 47 Mich. 115; Rotenberry v. Yalo- the right to control that discretion busha County Sup'rs, 67 Miss. 470; ( US e of municipal revenues) much Christman v. Phillips, 58 Hun (N. less to usurp and supersede it. To Y.) 282; Schanck v. City of New do so, in a single year, would re- York, 69 N. Y. 444. quire a revision of the details of ss Thompson-Houston Elec. Co. v. every estimate and expenditure City of Newton, 42 Fed. 723; City of based upon an inquiry into all Bridgeport v. Housatonuc R. Co,, branches of the municipal service; 15 Conn. 475; Dodd v. City of Hart- to do it for a series of years, and ford, 25 Conn. 232; Colton v. Han- in advance, is to attempt to foresee chett, 13 111. 615; Brush v. .City of every exigency and to provide Carbondale, 78 111. 74; Evansville, against every contingency that may I. & C. Straight Line R. Co. v. City arise to affect the public necessi- of Evansville, 15 Ind. 395; Taylor v. ties." McFadden, 84 Iowa, 262; Slack v. Boston Safe-Deposit & T. Co. v. Maysville & L. R. Co., 52 Ky. (13 Salem Water Co., 94 Fed. 238; City B. Mon.) 1; City of Baltimore v. of Fayetteville v. Carter, 52 Ark. 198 POWERS. HI circumstances, judicial tribunals are slow to act unless the ele- ments above indicated clearly and manifestly appear. The cor- rective and restraining influence of the courts can also be invoked where public corporations transcend or abuse their power or threaten to do so. But public corporations are ordinarily free to transact their police, administrative and local discretionary du- ties without restraint or hindrance by the judicial or other branches of the state. 41 111. Corporate powers ; their extent and nature. However ample the powers of a public corporation may be as granted by the sovereign, and whether express, incidental, im- perative, or discretionary, the corporation can never be author- ized to interfere with or deprive persons of private, property, or personal rights. 42 301; City of Vincennes v. Citizens' 44 Iowa, 505; City of St. Joseph v. Gas Light Co., 132 Ind. 114; Des Farrell, 106 Mo. 437; Aurora Water Moines Gas Co. v. City of Des Co. v. City of Aurora, 129 Mo. 540; Moines, 44 Iowa, 505. New York & H. R. Co. v. City of Moses v. Risdon, 46 Iowa, 251. Isew York, 1 Hilt. (N. Y.) 562; In "In the absence of actual fraud, re Episcopal School, 75 N. Y. 324, courts cannot interfere with the and Rutherford v. Hamilton, 97 Mo. judgment and discretion of city 543. councils in determining what are 41 Garrison v. Chicago, 7 Biss. 480, and what are not suitable rooms Fed. Gas. 5,255; State v. Swear- for the purposes of the city and its ingen, 12 Ga. 23. "Municipal cor- officers." State v. Board of Public porations are the germs and minia- Works of St. Paul, 27 Minn. 442; ture models of free government; State v. District Ct. of Ramsey Coun- and their internal police and admin- ty, 33 Minn. 295; City of St. Louis istration should not be interfered v. Weber, 44 Mo. 547; City of St. with for slight causes; not unless Louis v. Boffinger, 19 Mo. 15; Morse some great right has been withheld v. Westport, 136 Mo. 276; Cape May or wrong perpetrated." Chambers & S. L. R. Co. v. City of Cape May, v. City of St. Louis, 29 Mo. 543; 35 N. J. Eq. (8 Stew.) 419; Bab- Phelps v. City of Watertown, 61 cock v. City of Buffalo, 56 N. Y. Barb. (N. Y.) 121. "Courts of 268; Seitzinger v. Borough of Tarn- equity have no general supervisory aqua, 187 Pa. 539; Place v. City of power over the government of mu- Providence, 12 R. I. 1. nicipal corporations, or over the acts Courts will assume that municipal and proceedings of their governing corporations exercise their discre- bodies." tionary powers properly, in good 42 Martin v. Roesch, 57 Ark. 474; faith and with regularity. See, Des State v. Gaines, 46 La. Ann. 431, Moines Gas Co. v. City of Des Moines, 15 So. 174; Mitchell v. City of Rock- 112 IN GENERAL. 199 112. Their delegation. The powers possessed by public corporations are usually gov- ernmental in their nature and when granted by the legislature cannot be delegated by the corporation to others for their dis- charge or performance. 43 It must exercise the functions imposed upon it by its charter. The character of these duties and the manner of their performance is usually specified in the original grant of power. This rule does not prevent however the delega- tion of the performance of ministerial duties. The law recog- nizes the clear distinction between duties or powers involving the exercise of judgment and discretion and those purely mechan- ical, clerical or ministerial in their character. 4 * land, 45 Me. 496; Hyde v. City of Newark, 28 N. J. Law (4 Dutch.) 529 r People v. Coler, 166 N. Y. 1. See, also, cases cited 110, note 41. The principle applied in Dil- lard v. Webb, 55 Ala. 468, the power to appoint pound keepers conferred by the statute on board of commis- sioners of public corporation, not capable of delegation. In Smith v. Morse, 2 Cal. 524, it is held that the common council of a municipal cor- poration has no power to create a new department of the city govern- ment to divert the city's revenues and property. City of Oakland v. Carpentier, 13 Cal. 540; Chase v. City Treasurer of City & County of Los Angeles, 122 Cal. 540, 55 Pac. 414; Knight v. City of Eureka, 123 Cal. 192, 55 Pac. 768. In Gundling v. City of Chicago, 176 111. 340, the discretionary power in the issue of a license by the may- or held not to be a delegation of the power of the city council to license tne sale of cigarettes. People v. Mc- Wethy, 177 111. 334, the city coun- cil have no authority to delegate its power over the construction of sew- ers to a committee and the city en- gineer. Naegle v. City of Centralia, 81 111. App. 334, the municipal au- thority to license cannot be delegat- ed by the board of aldermen to the mayor. Town of Macon v. Patty, 57 Miss. 378, the power to determine the condition of sidewalks as vested in the board of mayor and aldermen cannot be by them delegated to street committeemen. Ayres v. Schmohl, 86 Mo. App. 349, the time within which certain public work should be done is held in this case to be a legislative function incapable of delegation. Ecroyd v. Coggeshall, 21 R. I. 1, 41 Atl. 260, a resolution of the city council leaving to the city solicitor the approval of a deed conveying land purchased by the city not a delegation of the council's power to purchase land. Whyte v. City of Nashville, 32 Tenn. (2 Swan) 364. Principle not applied: In Hitchcock v. City of Galveston, 96 U. S. 341, principle not applied to power vested in the city council to order the construction of side- walks. Covington v. City of East St. Louis, 78 111. 548, the general as- sembly of Illinois, under constitu- tion of 1870, can delegate authority to municipal governments in cities. ** Hitchcock v. City of Galveston, 200 POWERS. 113 113. Rules of construction. It is seldom that a rule other than that of strict construction is applied or should be applied to powers, of whatever nature, exercised or attempted to be exercised, by a public corporation. The reason for this salutary principle is that a public corporation is organized not for the personal pecuniary gain or profit of its members, but as an agency of the government, for the exercise of governmental powers and for the better performance of the du- ties which every good government owes to those within its juris- diction. The charter of the corporation contains the grant of its powers, and powers, rights and privileges should not be read into this charter by judicial construction or interpretation. As Chief Justice Shaw said: 45 "They can exercise no powers but those which are conferred upon them by the act by which they are con- stituted, or such as are necessary to the exercise of their corpo- rate powers, the performance of their corporate duties, and the accomplishment of the purposes of their association. The prin- ciple is fairly derived from the nature of corporations, and the mode in which they are organized and in which their affairs must be conducted." Any ambiguity or doubt, if such exist, must be construed or resolved in favor of the public and as against the exercise, usually through irresponsible agents, of the power by the corporation. 48 The strict rule of construction does not apply 96 U. S. 341; Haughawout v. Hub- used by the legislature must be re- bard, 131 Cal. 675; Gillett v. Logan solved in favor of the public." County Sup'rs, 67 111. 256; City of State v. Smith, 67 Conn. 541; Lo- Burlington v. Dennison, 42 N. J. gan v. Pyne, 43 Iowa, 524; Leonard Law, 165; Town of Harrisonburg v. v. City of Canton, 35 Miss. 189; Col- Roller, 97 Va. 582; Dances v. Town lins v. Hatch, 18 Ohio, 523; Heeney of Mannington, 50 W. Va. 322. v. Sprague, 11 R. I. 456. 45Spaulding v. City of Lowell, 40 * 6 Ottawa v. Carey, 108 U. S. 110; Mass. (23 Pick.) 71. See, also, the City of Detroit v. Detroit City R. following cases: Thomson v. Lee Co., 56 Fed. 867; City of Ft. Scott County, 70 U. S. (3 Wall.) 327, v. Eads Brokerage Co. (C. C. A.) where the court holds that a mu- 117 Fed. 51; Douglass v. City of nicipal corporation "can exercise no Placerville, 18 Cal. 643; Glass v. power which is not. in express terms Ashbury, 49 Cal. 571; Thomas v. or by fair implication, conferred City of Grand Junction, 13 Colo, upon it." Minturn v. Lame, 23 App. 80, 56 Pac. 665; Crofut v. City How. (U. S.) 435, where Justice of Danbury, 65 Conn. 294; Ex parte Nelson here said, "Any ambiguity Sims, 40 Fla. 432, 25 So. 280. Prin- or doubt arising out of the terms ciple applied to authority to impose 114 IN GENERAL. 201 as a general rule of law to private corporations, the reason being that they are organized for the personal gain of the members. Property is not acquired through the levy of taxes but by or through the contribution of personal and private funds over which the state has no direct control. If an injury or a loss results to or a debt is laid upon a private corporation through the exercise of a doubtful or ambiguous power, that loss, in- jury or burden is sustained by private promoters. If, on the other hand, a public corporation exercises an ambiguous or a doubtful power, resulting in an oppressive debt, an injury or loss to public property, or an increase in taxation, it is the community at large, the property interests, that must sustain and bear the loss and burden. Therefore, to repeat, the rule of strict con- struction applies, and every doubt in the construction of a power granted is against its exercise and in favor of the tax-paying public. 114. Rule of strict construction ; how modified. The rule of strict construction as given in the preceding sec- tion is occasionally modified. The courts hold that the rule should not be carried to such an extent as to defeat the very purpose for which the power was granted, if proper to be exer- cised, and that where it is necessary to adopt a more liberal rule license taxes. Agnew v. Brail, 124 like all such jurisdictions, it must 111. 312; Clark v. City of Davenport, be confined to the subjects specially 14 Iowa, 494; Logan v. Pyne, 43 enumerated." Knapp v. Kansas Iowa, 524; First Presbyterian City, 48 Mo. App. 485; City of Jop- Church v. City of Ft. Wayne, 36 lin v. Leckie, 78 Mo. App. 8; State Ind. 338; Neumeyer v. Krakel, 23 v. Moores, 55 Neb. 480; State v. Ky. L. R. 190, 62 S. W. 518; City Town of Union, 33 N. J. Law, 350; of Somerville v. Dickerman, 127 Meday v. Borough of Rutherford, Mass. 272; Bank of Michigan v. 65 N. J. Law, 645; Parker v. Baker, Niles, 1 Doug. (Mich.) 401; City of 1 Clark Ch. (N. Y.) 223; People v. St. Paul v. Laidler, 2 Minn. 190 (Gil. Ham, 32 Misc. 517, 66 N. Y. Supp. 159); Leonard v. City of Canton, 35 264; State v. Webber, 107 N. C. 962; Miss. 189. Where the court say, Appeal of Whelan, 108 Pa. 162; Caro- "The power of the corporation is lina Nat. Bank v. State, 60 S. C. merely something added, as to the 465, 38 S. E. 629; Lesley v. Kite, particular locality, to the general 192 Pa. 268; Kirkham v. Russell, powers of government; or, in other 76 Va. 956; City of Winchester v. words, it is a special jurisdiction Redmond, 03 Va. 711; Richards v. created for specified purposes, and Clarksburg, 30 W. Va. 491; Quint 202 POWERS. 115 of construction of a corporate power to accomplish the result sought by the legislature, it should be done. 47 II. THE POLICE POWEB. 115. Definitions. Government should have for its end the welfare, convenience and advantage of the people, and the advancement of all their material, intellectual and moral interests. One of its important objects, if not the most important, is the protection and preser- vation of life and limb and the property and good morals of the public. v. City of Merrill, 105 Wis. 406. The rule also applies to the mode, when prescribed by statute, of the exercise of powers. Zottman v. City and County of San Francisco, 20 Cal. 96. 47 City of Bridgeport v. Housa- tonic R. Co., 15 Conn. 475; Smith v. City of Madison, 7 Ind. 86. "The strictness then to be observed in giv- ing construction to municipal char- ters 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." Kyle v. Ma- lin, 8 Ind. 34; Cochrane v. City of Frostburg, 81 Md. 54. In City of Port Huron v. McCall, 46 Mich. 565, it is held that the reason for the rule of strict construction does not apply where the power granted re- lates merely to a change in the form of municipal indebtedness. The court in its opinion by Justice Cooley said: "There is a principle of law that municipal powers are to be strictly interpreted and it is a just and wise rule. Municipalities are to take nothing from the general sovereignty except what is express- ly granted. But when a power is conferred which in its exercise con- cerns only the municipality and can wrong or injure no one, there is not the slightest reason for any strict or literal interpretation with a view of narrowing its construction. If the parties concerned have adopted a particular construction not mani- festly erroneous and which wrongs no one, and the state is in no man- ner concerned, the construction ought to stand. That is good sense, and it is the application of correct principles in municipal affairs." State v. Walbridge, 119 Mo. 383. Gregory v. City of New York, 40 N. Y. 273. "The importance of sus- taining that board, in all lawful measures, tending to secure or pro- mote the health of the city, should make us cautious in declaring any curtailment of their authority, ex- cept upon clear grounds. On the contrary, powers conferred for so greatly needed and most useful pur- poses, should receive a liberal con- struction for the advancement of the ends for which they were be- stowed." East Tennessee University v. City of Knoxville, 65 Term. (6 Baxt.) 166; Ex parte Gregory, 20 Tex. App. 210; Ex parte Garza, 28 Tex. App. 381; Brennan v. City of Weatherford, 53 Tex. 330. 115 POLICE POWER. 203 That particular and inherent power of the state which has for its purpose the accomplishment of these results is termed the police power. It includes and comprehends within its exercise all those general laws and internal regulations which are neces- sary to secure the peace, good order, health and comfort of so- ciety. 48 It is that power of the state more than all others which 48 Gibbons v. Ogden, 9 Wheat. (U. S.) 203. In the Slaughter House Cases, 83 U. S. (16 Wall.) 36, 62, in the opinion written by Mr. Jus- tice Miller, it was said in speaking of the police power: "This is called the police power; and it is declared by Chief Justice Shaw (Com. v. Alger, 61 Mass. [7 Gush.] 84), that it is much easier to perceive and re- alize the existence and sources of it than to mark its boundaries, or prescribe limits to its exercise. This power is and must be, from its very nature, incapable of any very exact definition or limitation. Upon it de- pends the security of social order, the life and health of the citizen, the comfort of an existence in a thickly populated community, the enjoyment of social and private life, and the beneficial use of property." Munn v. State of Illinois, 94 U. S. 113. Boston Beer Co. v. State of Massa- chusetts, 97 U. S. 25. "If the public safety or the public morals require the discontinuance of any manufac- ture or traffic the hand of the legis- lature cannot be stayed from provid- ing for its discontinuance by any incidental inconvenience which in- dividuals or corporations may suf- fer. All rights are held subject to the police power of the state. We do not mean to say that property actually in existence and in which the right of the owner has become vested may be taken for the public good without due compensation." Stone v. State of Mississippi, 101 U. S. 814, 818. "Many attempts have been made in this court and else- where to define the police power but never with entire success. It is al- ways easier to determine whether a particular case come within the general scope of the power than to give an abstract definition of the power itself, which will be in all respects accurate. No one denies, however, that it extends to all mat- ters affecting the public health or the public morals. Neither can it be denied that lotteries are proper subjects for the proper exercise of this power." Barbier v. Connolly, 113 U. S. 31; In re Morgan, 26 Colo. 415. New Orleans Gas Light Co. v. Hart, 40 La. Ann. 474. "It may be said to be the right of a state or of a state functionary, to prescribe reg- ulations for the good order, peace, protection, comfort and convenience of the community which do not en- croach on the like power vested in congress by the Federal constitu- tion. Of that power it may well be said that it is known when and where it begins but not when and where it terminates. It is a power in the exercise of which a man's property may be taken from him, where his liberty may be shackled and his person exposed to destruc- tion in cases of great public exi- gencies." Com. v. Bearse, 132 Ma?s. 542; State v. xopp, 97 N. C. 477. "It 204 POWERS. 115 affects most intimately the private and personal interests and re- lations of each individual. It is to a certain extent an indefin- is founded very largely on the max- im sic utere tuo ut alienum non laedas and also to some extent, that other maxim of public policy salus populi suprema lex and it is of al- most universal application in regu- lating the interests of society within the jurisdiction of the state. It is too well established to admit of serious question that every person is' subject to it in his person and property." Stehmeyer v. City of Charleston, 53 S. C. 259; Lacey v. Palmer, 93 Va. 159. See, also, Tiedeman, State & Fed. Control of Persons & Prop- erty, 1 et seq., and Lawton v. Steele, 152 U. S. 133. "The extent and limit of what is known as the police power have been a fruitful subject of discussion in the appel- late courts of nearly every state in the Union. It is universally conced- ed to include everything essential to the public safety, health and mor- als, and to justify the destruction or abatement by summary proceed- ings, of whatever may be regarded as a public nuisance." Ex parte Jentzsch, 112 Cal. 468; Town of Lake View v. Rose Hill Cemetery Co., 70 111. 192; Deems v. City of Baltimore, 80 Md. 164; State v. Noyes, 47 Me. 189; Com. v. Alger, 61 Mass. (7 Gush.) 53, 85. In the opinion of Chief Justice Shaw, it was said: "Rights of property like all other social and conventional rights are subject to such reason- able limitations in their enjoyment as shall prevent them from being injurious and to such reasonable restraints and regulations estab- lished by law as the legislature un- der the governing and controlling power vested in them by the consti- tution may think necessary and ex- pedient. * * * The power we al- lude to is rather the police power, the power vested in the legislature by the constitution, to make, ordain and establish all maner of whole- some and reasonable laws, statutes and ordinances, either with penal- ties or without, not repugnant to the constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the sub- jects of the same. It is much easier to perceive and realize the existence and sources of this power, than to mark its boundaries, or prescribe limits to its exercise. There are many cases in which such a power is exercised by all well-ordered gov- ernments, and where its fitness is so obvious, that all well-regulated minds will regard it as reasonable." Hale v. Lawrence, 21 N. J. Law (1 Zab.) 714; Id., 23 N. J. Law (3 Zab.) 590; Muhlenbrinck v. Long Branch Com'rs, 42 N. J. Law, 364; City of New York v. Second Ave. R. Co., 32 N. Y. 261; People v. War- den of City Prison, 157 N. Y. 116; State v. Covington, 29 Ohio St. 102. Thorpe v. Rutland & B. R. Co., 27 Vt. 150. The police power extends "to the protection of the lives, limbs, health, comfort and quiet of all per- sons and a protection of all prop- erty within the state; * * * and persons and property are subjected to all kinds of restraints and bur- dens, in order to secure the general comfort, health, and prosperity of the state." Wisconsin Keeley Institute Co. v. Milwaukee County, 95 Wis. 153, 70 N. W. 68. A law providing for the S 115 POLICE POWER. 205 able power and the limits of its exercise are never clearly estab- lished ; no general principle of law can be stated which will even with reasonable accuracy define its application or its exercise. Certain purposes or certain results are to be accomplished by the state ; a certain exigency arises affecting the peace, the health, or the comfort of society; and to the legislature directly or as it may lawfully delegate the power is given the large discretion of passing such measures as are necessary to effect the desired result, restricted only by constitutional limitations. What may be necessary and proper to accomplish this result at one time may be unnecessary and improper at another. The exercise of the power belongs properly to the law-making or legislative branch of the sovereign, and it is not within the power of any court to prescribe or say what rules and regulations are needful or necessary to the peace, health, safety and morals of the state. The power belongs to the legislature to be exercised within con- stitutional limitations. 48 treatment of habitual drunkards in a private institution 'at the expense of the county not a legitimate exer- cise of the police powers of the state. 4 Bl. Comm. 162, where Black- stone defines the police power to be "The due regulation and domestic order of the kingdom, whereby the inhabitants of the state like mem- bers of a well governed family are bound to conform their general be- havior to the rules of propriety, good neighborhood and good man- ners and to be decent, industrious and inoffensive in their respective stations." Cooley, Const. Lim. 829, Judge Cooley in discussing the question states, "The police of a state in a comprehensive sense embraces its whole system of internal regulation by which the state seeks not only to preserve the public order and to prevent offenses against the state, ^ut also to establish for the inter- course of citizens with citizens those rules of good manners and good neighborhood which are calculated to prevent a conflict of rights and to insure to each the uninterrupted en- joyment of his own so far as is rea- sonably consistent with a like en- joyment of rights by others." 4 Luther v. Borden, 7 How. (U. S.) 1. The state in this case was held to have the power to determine for itself to what extent the mili- tary power was necessary to quell an armed insurrection. Hannibal & St. J. R. Co. v. Husen, 95 U. S. 471; Mugler v. State of Kansas, 123 U. S. 623; State of Arkansas v. Kan- sas & T. Coal Co., 96 Fed. 353; Dor- man v. State, 34 Ala. 232; Fife v. State, 31 Ark. 455; State v. Wheel- er, 25 Conn. 290; People v. Gillson, 109 N. Y. 389, 17 N. E. 343; Pow- ell v. Com., 114 Pa. 265. Calder v. Bull, 3 Ball. (U. S.) 386. where Justice Chase in discuss- ing the power of the state legis- lature says: "I cannot subscribe to the omnipotence of the state legis- lature, or that it is absolute and 206 POWERS. 115 It is our theory of government that, controlled only by con- stitutional provisions, its three great branches, the executive, judicial and legislative, are co-ordinate and co-equal. It is within without control, although its author- ity should not be expressly re- strained by the constitution, or fundamental law of the state. The people of the United States erected their constitutions, or forms of gov- ernment, to establish justice, to pro- mote the general welfare, to secure the blessings of liberty; and to pro- tect their persons and property from violence. The purposes for which men enter into society will deter- mine the nature and terms of the social compact; and as they are the foundation of the legislative power, they will decide what are the proper objects of it. The nature and ends of legislative power wiM limit the exercise of it. This fundamental principle flows from the very nature of our free republican governments, that no man should be compelled to do what the laws do not require, nor to refrain from acts which the laws permit. There are acts which the federal or state legislature cannot do, without exceeding their author- ity. There are certain vital prin- ciples in our free republican govern- ments, which will determine and overrule an apparent and flagrant abusive of legislative power; as to authorize manifest injustice by pos- itive law; or to take away that se- curity for personal liberty, or pri- vate property, for the protection whereof the government was estab- lished. An act of the legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of the legislative authority. The obligation of a law in governments established on ex- press compact, and on republican principles, must be determined by the nature of the power on which it is founded. A few instances will suffice to explain what I mean. A law that punished a citizen for an innocent action, or, in other words, for an act, which, when done, was in violation of no existing law; a law that destroys, or impairs, the lawful private contracts of citizens; a law that makes a man a judge of his own cause; or a law that takes property from A and gives it to B. It is against all reason and justice for a people to entrust a legislature with such powers; and therefore, it cannot be presumed that they have done it. The genius, the na- ture, and the spirit of our state governments, amount to a prohibi- tion of such acts of legislation; and the general principles of law and reason forbid them. The legisla- ture may enjoin, permit, forbid and punish; they may declare new crimes, and establish rules of con- duct for all its citizens in future cases; they may command what is right, and prohibit what is wrong; but they cannot change innocence into guilt; or punish innocence as a crime; or violate the right of an antecedent lawful private contract; or the right of private property. To maintain that our federal or state legislature possesses such pow- ers if they had not been expressly restrained, would, in my opinion, be a political heresy altogether in- admissible in our free republican governments." But see the case of Bertholf v. O'Reilly, 74 N. Y. 509. "The question whether the act un- 115 POLICE POWER. 207 the power as well as the discretion of the law-making branch to determine what rules and regulations are best calculated to ac- complish the great results comprehended and included within the exercise of the police power. As was said by the court in an Ohio case: 50 "The making of laws is committed to the general der consideration was a valid exer- cise of the legislative power is to be determined solely by reference to the constitutional restraints and prohibitions. The legislative power has no other limitation. If an act can stand when brought to the test of the constitution, the question of its validity is at an end and neither the executive nor judicial depart- ment of the government can refuse to recognize or enforce it. The the- ory that laws may be declared void when deemed to be opposed to nat- ural justice and equity, although they do not violate any constitu- tional provision, has some support in the dicta of learned judges, but has not been approved, so far as we know, by any authoritative adjudi- cation, and is repudiated by numer- ous authorities." Lawton v. Steele, 152 U. S. 133. ''Beyond this, however, the state may interfere wherever the public interests demand it, and in this par- ticular a large discretion is neces- sarily vested in the legislature to determine not only what the inter- ests of the public require, but what measures are necessary for the pro- tection of such interests. To justify the state in thus interposing its au- thority in behalf of the public, it must appear, first, that the interests of the public generally as distin- guished from those of a particular class, require such interference; and, second, that the means are rea- sonably necessary for the accomp- lishment of the purpose, and not un- duly oppressive upon individuals. The legislature may not, under the guise of protecting the public in- terests, arbitrarily interfere with private business or impose unusual and unnecessary restrictions upon lawful occupations. In other words, its determination as to what is a proper exercise of its police powers, is not final or conclusive, but is sub- ject to the supervision of the courts." soAdler v. Whitbeck, 44 Ohio St. 539, 562. But Chief Justice Mar- shall in Marbury v. Madison, 1 Cranch (U. S.) 177, said: "If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though It be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem at first view, an absurdi- ty too gross to be insisted on. It shall however, receive a more at- tentive consideration. "It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and in- terpret that rule. If two laws con- flict with each other, the courts must decide on the operation of each. "So if the law be in opposition to the constitution; if both the law and the constitution apply to a particu- lar case, so that the court must 208 POWERS. 115 assembly; it is the judge of the wisdom and policy of all its en- actments, and no court has the right to overrule its judgment, even as to the extent of its own powers, unless it has clearly and beyond doubt exceeded the legislative functions with which it is invested by the constitution. This is so generally recognized as true as to be regarded as axiomatic upon all questions as to the power of a legislature to enact a given law." The state has the power to select its agent for exercising the police power or the manner in which it itself shall do this. It is clearly constitutional for the sovereign to delegate to a sub- ordinate public agency, a public corporation, the right to exer- cise this power, and it has been suggested in some cases that the power exists in a municipal corporation proper independent of any express delegation of the same by the state. 51 It follows, either decide that case conformably to the law, disregarding the consti- tution; or conformably to the con- stitution, disregarding the law; the court must determine which of these conflicting rules govern the case. This is of the very essence of judi- cial duty. "If then, the courts are to regard the constitution, and the constitu- tion is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must gov- ern the case to which they both ap- ply. "Those, then, who controvert the principle that the constitution is to be considered, in court, as a para- mount law, are reduced to the neces- sity of maintaining that courts must close their eyes on the constitution, and see only the law. "This doctrine would subvert the very foundation of all written con- stitutions. It would declare that an act which, according to the princi- ples and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would de- clare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which profess- es to restrict their powers within narrow limits. It is prescribing limits, and declaring that those lim- its may be passed at pleasure." And Mr. Justice Harlan in Mugler v. State of Kansas, 123 U. S. 623, wrote: "The courts are not bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty indeed they are under a solemn duty to look at the substance of things whenever they enter upon the inquiry whether the legislature had transcended the limits of its au- thority. If, therefore, a statute pur- porting to have been enacted to pro- tect the public health, the public morals or the public safety, has no real or substantial relations to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the court to so adjudge, and thereby give effect to the constitution." siKeilkopf v. City of Denver, 19 Colo. 325; State v. Try on, 39 Conn. 115 POLICE POWER. 209 as this is a governmental power, no public corporation, not even the state itself, can waive or bargain away the right to exer- cise it. 62 183; Morris v. City of Columbus, 102 Ga. 792; City of Spring Valley v. Spring Valley Coal Co., 71 111. App. 432; McPherson v. Village of Che- banse, 114 111. 46; Walker v. Jame- son, 140 Ind. 591; Des Moines Gas Co. v. City of Des Moines, 44 Iowa, 505; Com. v. Milton, 51 Ky. (12 B. Mon.) 212; State v. Parish of Or- leans Dist. Judges, 35 La. Ann. .1075; Com. v. Plaisted, 148 Mass. 375; Boehm v. City of Baltimore, 61 Md. 259; People v. Hanrahan, 75 Mich. 611; City of St. Paul v. Colter, 12 Minn. 41 (Gil. 16) ; State v. Cowan, 29 Mo. 330; Kerney v. Barber Asphalt Pav. Co., 86 Mo. App. 573; Jackson v. Kansas City, Ft. S. & M. R. Co., 157 Mo. 621; State v. Noyes, 30 N. H. 279; Chicago, B. & Q. R. Co. v. State, 47 Neb. 549; Her v. Ross, 64 Neb. 710, 90 N. W. 869; Village of Carth- age v. Frederick, 122 N. Y. 268; State v. Beacham, 125 N. C. 652; State v. Hill, 126 N. C. 1139; Bliss v. Kraus, 16 Ohio St. 54; Town Council of Sum- merville v. Pressley, 33 S. C. 56; City of Nashville v. Linck, 80 Tenn. 499; Judy v. Lashley, 50 W. Va. 628, 41 S. E. 197. A city charter in this case held to contain a limita- tion upon the exercise of the police power. See, also, authorities col- lected in 36 Century Digest, col- umns 1744 et seq. 52 Boyd v. State of Alabama, 94 U. S. 645; Boston Beer Co. v. State of Massachusetts, 97 U. S. 25. "Whatever differences of opinion may exist as to the extent and boun- daries of the police power, and how- ever difficult it may be to render a satisfactory definition of it, there seems to be no doubt that it does extend to the protection of the lives, health and property of the citizens, and to the preservation of good or- der and the public morals. The leg- islature cannot, by any contract di- vest itself of the power to provide for these objects. They belong em- phatically to that class of objects which demand the application of the maxim, salus populi suprema lex; and they are to be attained and pro- vided for by such appropriate means as the legislative discretion may de- vise. That discretion can no more be bargained away than the power itself." Northwestern Fertilizing Co. v. Village of Hyde Park, 97 U. S. 659. In Stone v. State of Mississippi, 101 U. S. 814, the court said by Mr. Chief Justice Waite, "All agree that the legislature cannot bargain away the police power of a state. 'Irrev- ocable grants of property and fran- chises may be made if they do not impair the supreme authority to make laws for the right government of the state, but no legislature can curtail the power of its successors to make such laws as they may deem proper in matters of police.' * * * But the power of governing is a trust committed by the people to the government; no part of which can be granted away. The people in their sovereign capacity have estab- lished their agencies for the preser- vation of the public health and the public morals and the protection of public and private rights. These several agencies can govern accord- ing to their discretion if within the scope of their general authority, Abb. Corp. 14. 210 POWERS. 116 g 116. General limitations upon its exercise. The police power has for its purpose the accomplishment of certain desired results for the protection of society. The exer- cise of the power, as has been stated, belongs to the law-making branch of the sovereign, and its application in a particular in- stance is a matter of discretion. A general limitation upon the exercise of the power by the state is that the regulations or the means adopted for the accomplishment of a lawful purpose must have this for their sole result and aim. They must, as the courts have said, be fit, proper, and reasonable means for exercising the governmental power. 53 while in power, but they cannot give away nor sell the discretion of those that are to come after them, in re- spect to matters, the government of which, from the very nature of things must 'vary with varying cir- cumstances.' * * * Certainly the right to suppress them (lotteries) is governmental, to be exercised at all times by those in power, at their discretion. * * * All that one can get by such a charter is a suspen- sion of certain governmental rights in his favor, subject to withdrawal at will. He has in legal effect noth- ing more than a license to enjoy the privilege on the terms named for the specified time, unless it be sooner abrogated by the sovereign power of the state." 53 in re Wilshire, 103 Fed. 620; In re Jacobs, 98 N. Y. 98. In its opin- ion many authorities discussing the nature of the police power and the limits to its exercise are cited and collated, Earl, Judge, in speaking of the particular act under consid- eration, which attempted to regulate the manufacture of cigars and prep- aration of tobacco in tenement houses, said: "Such legislation may invade one class of rights to- day and another tomorrow, and if it can be sanctioned under the Consti- tution, while far removed in time we will not be far away in practical statesmanship from those ages when governmental prefects supervised the building of houses, the rearing of cattle, the sowing of seed and the reaping of grain, and governmental ordinances regulated the movements and labor of artisans, the rate of wages, the price of food, the diet and clothing of the people, and a large range of other affairs long since in all civilized lands regarded as out- side of governmental functions. Such governmental interferences dis- turb the normal adjustments of the social fabric, and usually derange the delicate and complicated machin- ery of industry and cause a score of ills while attempting the removal of one. When a health law is chal- lenged in the courts as unconstitu- tional on the ground that it arbi- trarily interferes with personal lib- erty and private property without due process of law, the courts must be able to see that it has at least in fact some relation to the public health, that the public health is the end actually aimed at, and that it is appropriate and adapt- ed to that end. This we have not been able to see in this law, and we must, therefore, pronounce it uncon- 116 POLICE POWER. 211 The state cannot, under the guise of the police power, pass laws, rules, or regulations which ostensibly have for their end or purpose the comfort, safety, welfare and protection of society, but which are, as a matter of fact, passed for the purpose of im- pairing or destroying private rights and private property, or at- tacking personal interests. 54 Btitutional and void." The court also said in discussing the police power. "The limit of the power can- not be accurately defined and the courts have not been able or willing definitely to circumscribe it. But the power however broad and exten- sive, is not above the Constitution. When it speaks, its voice must be heeded. It furnishes the supreme law, * * * and so far as it im- poses restraints the police power must be exercised in subordination thereto. * * * Generally it is for the legislature to determine what laws and regulations are needed to protect the public health and secure the public comfort and safety, and while its measures are calculated, intended, convenient and appropriate to accomplish these ends, the exer- cise of its discretion is not subject to review by the courts. But they must have some relation to these ends. Under the mere guise of po- lice regulations, personal rights and private property cannot be arbi- trarily invaded and the determina- tion of the legislature is not final or conclusive. If it passes an act os- tensibly for the public health, and thereby destroys or takes away the property of a citizen or interferes with his personal liberty, then it is for the courts to scrutinize the act and see whether it really relates to and is convenient and appropriate to promote the public health." See, also, California Reduction Co. v. Sanitary Reduction Works (C. C. A.) 126 Fed. 29, where the question of the power of a municipal corpo- ration to grant an exclusive privi- lege for the collection of city gar- bage was fully discussed and many authorities cited. See quotation from opinion, 137 post, note 198. 5* Marbury v. Madison, 1 Cranch (U. S.) 177. See quotation from opinion by Chief Justice Marshall, 115; Yick Wo v. Hopkins, 118 U. S. 356; Lawton v. Steele, 152 U. S. 133. "The legislature may not under the guise of protecting the public inter- ests arbitrarily interfere with pri- vate business or impose unusual and unnecessary restrictions upon lawful occupations." See, also, quotation from Judge Chase in Calder v. Bull, 3 Ball. (U. S.) 386, 115, note 49; Philadelphia, W. & B. & R. Co. v. Bowers, 4 Houst. (Del.) 506; Town of Lake View v. Rose Hill Cemetery Co., 70 111. 191. "The po- lice power of the state is co-exten- sive with self-protection, and is not inaptly termed 'the law of overrul- ing necessity.' It is that inherent and plenary power in the state which enables it to prohibit all things hurtful to the comfort, safety and welfare of society." State v. Judge of Section "A," 39 La. Ann. 132; State v. Noyes, 47 Me. 189. "All laws for the protec- tion of the lives, limbs, health and quiet of persons, and the security of all property within the state fall within this general power of the government." 212 POWERS. That a police regulation be valid, the preservation of the peace, comfort and morals of society must not only be its ulterior pur- pose but its real and substantial one. In some cases it is very difficult to determine when a police regulation passes the divid- ing line between a proper exercise of the police power and an unwarranted and illegal interference with personal rights. 55 117. Constitutional limitations. All constitutions contain provisions having for their purpose the protection of those rights usually enumerated in and included within what may be technically termed a bill of rights. These constitute the principal constitutional limitations upon the power of the state to exercise the police power, and according to the standard set forth in these provisions will be measured police Com. v. Brooks, 109 Mass. 355; People v. Jackson & M. Plank Road Co., 9 Mich. 285. "Powers, the ex- ercise of which can only be justi- fied on this specific ground and which would otherwise be clearly prohibited by the constitution can be such only as are so clearly necessary to the safety, comfort or well being of society or so imperatively re- quired by the public necessity as to lead to the rational and satisfactory conclusion that the framers of the constitution could not as men of or- dinary prudence and foresight have intended to prohibit their exercise in the particular case." City of St. Charles y. Nolle, 51 Mo. 122; State v. Fisher, 52 Mo. 174; Bertholf v. O'Reilly, 74 N. Y. 509. "The main guaranty of private rights against unjust legislation is found in that memorable clause in the bill of rights, that no person shall 'be deprived of life, liberty or property, without due process of law.' * * * This guaranty is not construed in any narrow or techni- cal sense. The right to life may be invaded without its destruction. One may be deprived of his liberty in a constitutional sense without putting his person in confinement. Property may be taken without man- ual interference therewith, or its physical destruction. The right to life includes the right of the indi- vidual to his body in its complete- ness and without dismemberment; the right to liberty, the right to ex- ercise his faculties and to follow a lawful avocation for the support of life; the right of property, the right to acquire power and enjoy it in any way consistent with the equal rights of others and the just exactions and demands of the state." Colon v. JLisk, 153 N. Y. 188. 6525 Am. St. Rep. 889-890; Soon Hing v. Crowley, 113 U. S. 703; Mugler v. State of Kansas, 123 U. S. 623; State of Minnesota v. Barber, 136 U. S. 313; Brimmer v. Rebman, 138 U. S. 78; Stockton Laundry Case, 26 Fed. 611; Inhabitants of Watertown v. Mayo, 109 Mass. 315; In re Jacobs, 98 N. Y. 98; People v. Gillson, 109 N. Y. 389; State v. Moore, 104 N. C. 714. POLICE POWER. 213 regulations. If they clearly violate or infringe upon these fun- damental, inherent, inalienable rights guaranteed by the consti- tution according to republican theories of government, they are clearly unconstitutional. 56 It must be remembered, however, that each individual owes something to society and that he should for its good willingly surrender rights of which he could not be deprived. Every police regulation may unnecessarily diminish rights belonging to the individual, but as long as they accom- plish beneficial results they should be considered valid, even where involving a sacrifice on the part of the citizen. 118. The preservation of public health. The preservation of the public health is conceded by all au- thorities to be one of the legitimate purposes for the accomplish- ment of which the police power of the state can be exercised to its fullest extent. 57 The good health of the people of the com- 56 People v. Turner, 55 111. 280, where an act of the legislature cre- ating a reform school and providing for the summary commitment of children who are "destitute of prop- er parental care and growing up in mendicancy, ignorance, idleness or vice" was held unconstitutional as prescribing a virtual imprisonment without due process of law. See, also, annotations to this case by Justice Redfield, 10 Am. Law Reg. (N. S.) p. 373, where he says: "For if there is living power enough in those abstractions of the state con- stitutions which have heretofore been regarded as mere 'glittering generalities' to enable the courts to enforce them against the enactments of the legislature and thus declare that all men are not only created free and equal but remain so and may enjoy life and pursue happiness in their own way, provided they do not interfere with the freedom of other men in the pursuit of the same objects; then the opportunity to com- pel parents to send their children to the common schools by means of 'truant laws' such as we have in the highly advanced commonwealth of Massachusetts, will come to a speedy and most inglorious termination." In re Day, 181 111. 73. The act re- stricting the granting of licenses to lawyers under certain circumstances held unconstitutional. Noel v. Peo- ple, 187 111. 587; Bessette v. People, 193 111. 334. See cases collected in note, 33 Cent. Law J. 382. 57 Richardson v. City of Boston, 24 How. (U. S.) 188; Town of Greens- boro v. Ehrenreich, 80 Ala. 579, 2 So. 725; Dunham v. City of New Britain, 55 Conn. 378, 11 Atl. 354; State v. Main, 69 Conn. 123, prin- ciple applied to "peach yellows"; Murphy v. City of Wilmington, 6 Houst. (Del.) 108; Inhabitants of Quincy v. Kennard, 151 Mass. 563, 24 N. E. 860; State v. Zimmerman, 86 Minn. 353, 90 N. W. 783; Board of Health of Trenton v. Hutchinson, 39 N. J. Eq. 218; Board of Health of New Jersey v. Diamond Mills Paper Co., 63 N. J. Eq. Ill, 51 Atl. 1019. 214 POWERS. 119 nmnity is one of the chief ends or aims of government, and this is true not only because of the great expense which the state necessarily incurs in caring for the indigent sick, one of its du- ties, but that the state as composed of individuals may maintain the highest degree of efficiency possible in the advancement of its material, moral, and intellectual interests. That a sound body is the best agency for the promotion of general prosperity is a maxim which can be applied to the state as well as to the in- dividual. The statements in this section are such truisms that it is unnecessary to cite authorities. 119. Public agencies for the preservation of health. The state in its exercise of the police power for the preserva- tion of the public health has the right to select such agency as it deems best fitted for that purpose. The duty is usually en- trusted to administrative or executive boards, duly appointed 58 or elected by the people, called boards of health, 59 members of which must have the qualifications required. 60 Sometimes this See note in 38 L. R. A. 305 and 39 L. R. A. 266. ss Dunwoody v. United States, 143 U. S. 578; Municipality of Cape Bre- ton County v. McKay, 18 Can. Sup. Ct. 639; Braman v. City of New London, 74 Conn. 695, 51 Atl. 1082; In reOpinion of Justices to Governor & Council, 136 Mass. 578. See, also, Act of Congress of March 3, 1879 (20 Stat. 484) creating a National Board of Health consisting of seven members to be appointed by the President. 53 People v. Perry, 79 Cal. 105 ; Forbes v. Board of Health of Es- cambia County, 27 Fla. 189; Waller v. Wood, 101 Ind. 138. Board of county commissioners constitutes for the county its board of health. Hengehold v. City of Covington, 108 Ky. 752, 57 S. W. 495; In re Opinion of Justices to Governor & Council, 136 Mass. 578; People v. Scott, 31 Misc. 131, 64 N. Y. Supp. 970; Smith v. Lynch, 29 Ohio St. 261; City of Taunton v. Taylor, 116 Mass. 254. Davock v. Moore, 105 Mich. 120. "Municipal corporations are of a two- fold character, the one public as re- gards the state at large, in so far as they are its agents in government, the other private, in so far as they are to provide the local necessities and conveniences for the citizens. The legislature under the present act is dealing with the city of De- troit as one of its agencies to pro- tect the public health and prevent the spreading of pestilential conta- gious or infectious disease. * * * Clearly it is apparent from the whole act that it was the legislative intent to use the city as its agent in gov- ernment, to prevent the spread of contagious disease." eo State v. Kohnke, 106 La. 420, 31 So. 45; In re Opinion of Justices to Governor & Council, 136 Mass. 578; Board of Health of Trenton v. Hutch 120 POLICE POWER. 215 power is delegated by the state or the legislature to the munici- pal authorities for similar action. The state may also give the right to the people residing within certain territory to organize either under special or general laws, districts having for their sole purpose the preservation of the public health within such limits. 81 Such boards of health or sanitary districts are consid- ered public quasi corporations and possess, with the power to exercise them, such powers as belong to corporations of a similar grade or special powers granted by the legislature. 62 120. Boards of health ; their jurisdiction and powers. The particular agencies, under whatever name, employed by the state for the preservation of the public health, may exercise the powers with which they are clothed only within the district over which they are given jurisdiction, 63 and upon those matters inson, 39 N. J. Eq. 218; People v. Platt, 117 N. Y. 159; People v. Board of Health of Yonkers, 140 N. Y. 1. ei Woodward v. Fruitvale Sanitary Dist, 99 Cal. 554. "It may well be that if in the formation of a sanitary district an incorporated city or town shall be included, in which the au- thority conferred upon the sanitary board is delegated to the munici- pality, it will be held that the law under consideration was not intend- ed to apply to such city or town." In re Werner, 129 Cal. 567; Stumpf v. San Luis Obispo County Sup'rs, 131 Cal. 364; Wilson v. Trustees of Sanitary Dist. of Chicago, 133 111. 443, 27 N. E. 203; Grace v. Board of Health of Newton, 135 Mass. 490; Boehm v. City of Baltimore, 61 Md. 259; Board of Health of Hamilton Tp. v. Neidt (N. J. Eq.) 19 Atl. 318; Hutchinson v. Board of Health of Trenton, 39 N. J. Eq. 569. A board of health is legally organized if there has been a substantial com- pliance with the requirements of the law. Kennedy v. Board of Health, 2 Pa. 366; City of Philadelphia v. Provident Life & Trust Co., 132 Pa. 224; Hughson v. City of Rochester, 49 Hun, 45, 1 N. Y. Supp. 725; Coe v. Schultz, 2 Abb. Pr. (N. S.; N. Y.) 193; Board of Health of Kortright v. Cease, 53 Hun, 638, 6 N. Y. Supp. 790; Metropolitan Board of Health v. Heister, 37 N. Y. 661; Gregory v. City of New York, 40 N. Y. 273; People v. Acton, 48 Barb. (N. Y.) 524; Gould v. City of Rochester, 105 N. Y. 46. 62 Forbes v. Board of Health of Es- cambia County, 27 Fla. 189, 9 So. 446; Johnson v. Sanitary Dist. of Chicago, 163 111. 285; Health Dept. of New York v. Pinckney, 7 Daly (N. Y.) 260; Taylor v. Board of Health of Philadelphia, 31 Pa. 73. See note 24 Am. Law Rev. 559, on boards of health, their objects, func- tions and powers. See, also, 47 Am. St. Rep. 533-552; 26 L. R. A. 727; 38 L. R. A. 305; Green v. City of Cape May, 41 N. J. Law, 45; City of Bur- lington v. Dennison, 42 N. J. Law, 165; Courter v. Board of Health of Newark, 54 N. J. Law, 325, and Gould v. City of Rochester, 105 N. Y. 46. 63 Ward v. Washington, 4 Cranch, 216 POWERS. 120 the regulation of which is delegated to them. The care of the public health, it has been held, is an important object, and laws conferring powers upon the agencies for its preservation should receive a liberal construction in order to effect an advancement jf the ends and an accomplishment of the purposes for which they are established. 6 * These agencies are considered public quasi corporations or municipal corporations; agencies of the state; and as such entitled to its support and protection in the enforcement of their orders and regulations, 65 and with the power C. C. 232, Fed. Cas. No. 17,163; Cot- ting v. Kansas City Stock Yards Co., 79 Fed. 679; City of South Pasadena v. Los Angeles Terminal R. Co., 109 Cal. 315. Begein v. City of Anderson, 28 Ind. 79. City authorities have no power to prohibit the establishment of a cemetery outside of city limits, their authority being co-existent with the city limits. Robb v. City of Indian- apolis, 38 Ind. 49; Stone v. Heath, 179 Mass. 385; Gould v. City of Rochester, 105 N. Y. 46; reversing 39 Hun, 79; Bell v. City of Roches- ter, 58 Hun, 602, 11 N. Y. Supp. 305; Polinsky v. People, 73 N. Y. 65; Jarvis v. Pinckney, 3 Hill (S. C.) 123; State v. Franklin, 40 Kan. 410. 6* Blue v. Beach, 155 Ind. 121, 56 N. E. 89, 80 Am. St. Rep. 195. "If the legislature in the interests of the public health enacts a law and there- by interferes with the personal rights of an individual, * * * it then, under such circumstances be- comes the duty of the courts to re- view such legislation * * * and in such an examination the court will look to the substance of the thing involved and will not be con- trolled by mere forms." Wyse v. Police Com'rs of New Jer- sey, 68 N. J. Law, 127, 52 Atl. 281. "In interpreting these rules we must look at them from the standpoint of the board of commissioners, not as formulating a matter of legal pro- cedure, but as making regulations, general in their character, to pro- mote the health, comfort and con- venience of a crowded city. Such a power is held to arise from author- ity to make police regulations. Weil v. Ricord, 24 N. J. Eq. (9 C. E. Green) 169. We must also have re- gard to the rule that enactments of this character are given a reason- able construction, and to the further rule that where such enactments are made by a municipal body having jurisdiction over the subject-matter every intendment and presumption will be made in, favor of their valid- ity. 17 Am. & Eng. Enc. Law, 264; Harrington Tp. Road Commission v. Haring, 55 N. J. Law, 327; Atlantic City Water Works Co. v. Consumers Water Co., 44 N. J. Eq. (17 Stew.) 427." Gregory v. City of New York, 40 N. Y. 273; Health Dept. of New York v. Knoll, 70 N. Y. 530. 65 Moore v. New Orleans Water- works Co., 114 Fed. 380. "The case has been argued as though the drain- age commission of New Orleans was vested with full possession of the police power of the state, to the ex- clusion of all and any rights of the Mew Orleans Waterworks Company, while the fact is that both the com- mission and the waterworks com- 120 POLICE POWER. 217 of suing and being sued. 66 The performance of their duties may be compelled in a proper proceeding, not being considered en- tirely discretionary in their character. 67 Powers granted these bodies may be limited by express terms, 68 or the grant of author- ity may exist in general language, a wide latitude of discretion existing in the latter case. 69 The true rule was probably stated in the case of City of St. pany are agencies of the state and city in providing for the public health and safety, and that both are entitled to the support and protec- tion of the police power in executing and performing the functions re- spectively assigned." People v. Wil- liamson, 135 Cal. 415, 67 Pac. 504; City of Rockland v. Farnsworth, 87 Me. 473; People v. Shurly, 124 Mich. 645; Cartwright v. City of Cohoes, 165 N. Y. 631; Taylor v. Board of Health of Philadelphia, 31 Pa. 73. See, also, 72 Am. Dec. 724. es Henderson County Board of Health v. Ward, 107 Ky. 477, 54 S. W. 725; Inhabitants of Quincy v. Kennard, 151 Mass. 563; McEwen v. Board of Health of Woodbridge Tp., 61 N. J. Law, 468; Board of Health of Asbury Park v. Rosenthal, 67 N. J. Law,216, 50Atl. 439; Board of Health of New Rochelle v. Valentine, 57 Hun, 591, 11 N. Y. Supp. 112; Bell v. City of Rochester, 58 Hun, 602, 33 State Rep. 739, 11 N. Y. Supp. 305; Gould v. City of Rochester, 105 N. Y. 46; Brown v. District of Narra- gansett, 21 R. I. 156, 503; City of Memphis v. Smythe, 104 Tenn. 702; Buckstaff v. City of Oshkosh, 92 Wis. 520. See, also, Parker & W. Pub. Health. 67 Wartmsn v. City of Philadel- phia, 33 Pa. 202; Com. v. Bredin, 165 Pa. 224. "Where duties of a public nature are imposed upon municipal corporations, they are liable to In- dictment for neglecting to properly discharge such duties." See, also, 15 Am. & Eng. Enc. Law (1st Ed.) 1196, 1197. es Wong Wai v. Williamson, 103 Fed. 1. "Measures of this character * * * are constantly upheld by the courts as valid acts of legisla- tion, however inconvenient they may prove to be, and a wide discretion has also been sanctioned in their ex- ecution. But when the municipal authority has neglected to provide suitable rules and regulations upon the subject and the officers are left to adopt such methods as they may deem proper for the occasion, their acts are open to judicial review and may be examined in every detail to determine whether individual rights have been respected in accordance with constitutional requirements." State v. Burdge, 95 Wis. 390. 69 Jew Ho v. Williamson, 103 Fed. 10, and cases cited in the opinion; Ex parte Tuttle, 91 Cal. 589; Ex parte Whitwell, 98 Cal. 73; Austin v. Murray, 33 Mass. (16 Pick.) 121; City of St. Louis v. Weber, 44 Mo. 547; Whidden v. Cheever, 69 N. H. 142, 44 Atl. 908; Pennsylvania R. Co. v. Jersey City, 47 N. J. Law, 286; In re Smith, 146 N. Y. 68; Brown v. Pierce County, 28 Wash. 345, 68 Pac. 872. In this case the qualified health officer of a county held to have power to seize a pri- vate building in which to confine a small-pox patient. 218 POWERS. 120 Louis v. Weber, cited in the notes, where the court said : ' ' Courts will not look closely into mere matters of judgment where there may be a reasonable difference of opinion. It is not to be ex- pected that every power will always be exercised with the high- est discretion, and when it is plainly granted a clear case should be made to authorize an interference upon the ground of unrea- sonableness." A certain definite purpose is given them to carry out, and subject only to constitutional provisions and general rules of the law limiting the exercise of the police power, they have the right to use all the reasonable and proper means for ac- complishing this. 70 Their discretionary acts are not conclusive, but the measures which they may adopt are subject to review by the courts. It is also necessary to the validity of their acts that they perform them in the manner required by law, and in gen- eral their proceedings and rights of appeal are regulated by statute. 71 Vaccination. Boards of health have the power to order the vaccination of all persons not having been successfully vaccin- 70 Wong Wai v. Williamson, 103 Fed. 1; State v. Orr, 68 Conn. 101, construing an exclusive contract for the removal of garbage; Duggan v. City of New Orleans, 15 La. Ann. 449; Courter v. Board of Health of Newark, 54 N. J. Law, 325, 23 Atl. 949; Johnston v. Borough of Belmar, 58 N. J. Eq. 354; the right of board of health considered, to control use of water by private consumer; Health Dept. of New York v. Lalor, 38 Hun (N. Y.) 542; Board of Health of New Rochelle v. Valen- tine, 60 Hun (N. Y.) 579; Under- wood v. Green, 26 N. Y. Super. Ct. (3 Rob.) 86; People v. Justices of Ct. of Special Sessions, 7 Hun (N. Y.) 214. 71 Hurst v. Warner, 102 Mich. 238, 26 L. R. A. 484; Darcantel v. Peo- ple's Slaughter House & Refrigerat- ing Co., 44 La. Ann. 632; City of Salem v. Eastern R. Co., 98 Mass. 431; City of Taunton v. Taylor, 116 Masa. 254. Orders or directions of such boards should be liberally con- strued; Pebbles v. City of Boston, 131 Mass. 197; Com. v. Young, 135 Mass. 526; Inhabitants of Quincy v. Kennard, 151 Mass. 563; White v. Kenney, 157 Mass. 12; City of St. Louis v. Schnuckelberg, 7 Mo. App. 536. The action of a board of health in declaring an act a nuisance is not conclusive; Wilson v. Alabama G. S. R. Co., 77 Miss. 714, 28 So. 567; Marshall v. Cadwalader, 36 N. J. Law, 283. The action of a board of health in declaring a certain busi- ness a nuisance is void as their pow- ers are executive and advisory only; not legislative or judicial; Courter v. Board of Health of Newark, 54 N. J. Law, 325; Gould v. City of Roch- ester, 105 N. Y. 46; People v. Board of Health of Yonkers, 140 N. Y. 1; Board of Health of Yonkers v. Cop- cutt, 140 N. Y. 12; In re Smith, 146 N. Y. 68. 120 POLICE POWER. 219 ated within a certain time prior to such order, during the con- tinuance of an epidemic of small-pox ; 72 to require the vaccination of children prior to their attendance at public schools; 73 or to require the injection of a serum supposed to be a preventative against contraction of bubonic plague. 7 * They are authorized to take such measures as they may deem necessary to prevent the spread of infectious or contagious diseases affecting either per- sons 75 or domestic animals. 76 The scope of the exercise ot their 72 Morris v. City of Columbus, 102 Ga. 792; City of Ft. Wayne v. Rosen- thai, 75 Ind. 156; City of St. Paul v. Peck, 78 Minn. 497; State v. Hay, 126 N. C. 999; Hazen v. Strong, 2 Vt. 427; Salisbury Com'rs v. Powe, 51 N. C. (6 Jones) 134. See, also, Parker & W. Pub. Health, 123 and cases cited; and 59 Am. Rep. 116, 118; 47 Am. St. Rep. 546, 547. 73Abeel v. Clark, 84 Cal. 226; Bis- sell v. Davison, 65 Conn. 183; Potts v. Breen, 167 111. 67; Lawbaugh v. Board of Education of Dist. No. 2, 177 111. 572; School Directors v. Breen, 60 111. App. 201, holds that for failure to observe rule requir- ing vaccination a pupil cannot be ex- cluded from school when there is no immediate necessity for vaccination; Cory v. Carter, 48 Ind. 327; Blue v. Beach, 155 Ind. 121; City of Salem v. Eastern R. Co., 98 Mass. 431; State v. Zimmerman, 86 Minn. 353, 90 N. W. 783; In re Rebenack, 62 Mo. App. 8; In re Walters, 84 Hun, 457, 32 N. Y. Supp. 322. See, also, 65 Am. St. Rep. 338; Duffield v. Wil- liamsport School Dist., 162 Pa. 476, 25 L. R. A. 152 with note, and cases cited by counsel; State v. Burdge, 95 Wis. 390. As holding to the con- trary see Osborn v. Russell, 64 Kan. 507, 68 Pac. 60. T* Wong Wai v. Williamson, 103 Fed. 1, and cases cited in opinion. See, also, McClf-tchy v. Matthews, 135 Cal. 274, 67 Pac. 134, as to pow- ers of the state board of health in connection with investigation of same disease. TS Town of Greensboro v. Ehren- reich, 80 Ala. 579; County of Sa- guache v. Decker, 10 Colo. 149, 14 Pac. 123; Chicago, R. I. & P. R. Co. v. City of Joliet, 79 111. 44; Warner v. Stebbins, 111 Iowa, 86; Hender- son County Board of Health v. Ward, 107 Ky. 477, 54 S. W. 725; Pinkham v. Dorothy, 55 Me. 135; Seavey v. Preble, 64 Me. 120; Austin v. Murray, 33 Mass. (16 Pick.) 125; Train v. Boston Disinfecting Co., 144 Mass. 523; Elliott v. Kalkaska Sup'rs, 58 Mich. 452; Hurst v. War- ner, 102 Mich. 238, 60 N. W. 440; Safford v. Board of Health of De- troit, 110 Mich. 81, 67 N. W. 1094; Aull v. City of Lexington, 18 Mo. 401. The rent of a building for the use of hospital authorized in this case. Eckhardt v. City of Buffalo, 19 App. Div. 1, 46 N. Y. Supp. 204. Asiatic cholera. Rosenbaum v. City of Newbern, 118 N. C. 83, 24 S. E. 1. An ordinance requiring second-hand clothing to be turned over to the city for disinfection at specified prices held a valid exercise of police power. State v. Speyer, 67 Vt. 502, 48 Am. St. Rep. 832. A prohibition of the maintenance of pig pens with- in one hundred feet of any dwell- 220 POWERS. 120 powers does not include generally a control or regulation of pri- vate hospitals within city limits. " They also have the author- ity to incur debts and employ physicians or other agencies in the extermination of contagious or infectious diseases and the execution of the general purposes to accomplish which they were appointed or elected. 78 They may legally adopt rules regulating ing or well or spring used for drinking held unreasonable and in- valid when considered irrespective of locality. In Town of Kosciusko v. Slomberg, 68 Miss. 469, 9 So. 297, a certain ordinance prohibiting the sale of second-hand clothing as a quarantine regulation held to be in- valid and an unreasonable restraint of trade. 63 Am. Dec. 391. 76Kimmish v. Ball, 129 U. S. 217; Missouri, K. & T. R. Co. v. Haber, 169 U. S. 613; Id., 56 Kan. 694; Mullen v. Western Union Beef Co., 9 Colo. App. 497. State rules regulat- ing domestic animals must take pre- cedence and authority over the unau- thorized recommendations of a Fed- eral official. Stevens v. Brown, 58 111. 289; Somerville v. Marks, 58 111. 371; Yeazel v. Alexander, 58 111. 254; Chicago & A. R. Co. v. Gasaway, 71 111. 570; Patee v. Adams, 37 Kan. 133; Miller v. Horton, 152 Mass. 540; Husen v. Hannibal & St. J. R. Co., 60 Mo. 226; Grimes v. Eddy, 126 Mo. 168; Newark & S. O. Horse Car R. Co. v. Hunt, 50 N. J. Law, 308. But see Hannibal & St. J. R. Co. v. Husen, 95 U. S. 465 reversing 60 Mo. 226. This decision, however, was practically modified by the later case of Kimmish v. Ball, supra; Hand v. State, 37 Tex. Cr. App. 310, 39 S. W. 676. 77 Bessonies v. City of Indianapo- lis, 71 Ind. 189. "We do not think that the ordinance under considera- tion can be regarded as a proper ex- ercise or application of the implied police powers of the city, either in its terms or in its object; and cer- tainly it was not authorized by any of the express powers of the city, under the law. We are of the opin- ion therefore that the legislative bodies of the city of Indianapolis clearly transcended their powers * * * that said ordinance was and is absolutely null and void." 78 Town of New Decatur v. Berry, 90 Ala. 432. In this case the town of New Decatur had no authority to establish a quarantine, and a con- tract for services to be rendered in connection with this quarantine held as ultra vires and not enforce- able. Spearman v. City of Texarkana, 58 Ark. 348; Jay County Com'rs v. Fertich, 18 Ind. App. 1, 46 N. E. 699. In discussing the limitations and scope of a board's action the court say: "The purpose of the stat- ute is not to furnish, free of ex- pense, medical treatment and medi- cines to individual persons afflicted with disease of any character (though under other statutes such aid may be given to the poor) but it is to protect the public health, the health of the people at large, by preventive measures." City of McPherson v. Nichols, 48 Kan. 430, 29 Pac. 679; Bell County v. Blair, 21 Ky. L. R. 121, 50 S. W. 1104. Here a county was held not liable for the services of a physician rendered in suppression of an epi- demic within the city limits, the 120 POLICE POWER. 221 the removal of dead bodies, 79 and the manner, time and place of interring them. 80 board of health of the city having exclusive control. Barton v. City of New Orleans, 16 La. Ann. 317; State v. City of New Orleans, 37 La. Ann. 894, held that the salaries of sanitary police could not be paid from the regular police appropriation. Schmidt v. Stearns County, 34 Minn. 112; Elliott v. Kal- kaska Sup'rs, 58 Mich. 452; Wilkin- son v. Long Rapids Tp., 74 Mich. 63; Labrie v. City of Manchester, 59 N. H. 120; Rockaway Tp. .v. Freehold- ers of Morris County, 68 N. J. Law, 16, 52 All. 373; Kent v. Village of North Tarrytown, 50 App. Div. 502, 64 N. Y. Supp. 178. In TC Taxpayers & Freeholders of Pittsburgh, 157 N. Y. 78. "The charter of this village, it is true, contains no provision authorizing the trustees to raise money * * * for the purpose of suppressing dis- ease or preserving the public health but the general laws of the state make it their duty to comply with the orders of the local board of health in this respect, and when that board incurs expense in the perform- ance of its duty * * * it becomes the duty of the municipal authorities to comply with the order whether there is any provision to that effect in the charter or not." Town of New Decatur v. Berry, 90 Ala. 432. And see 24 Am. St. Rep. 827; 58 Am. Dec. 169. But see, also, the following cases where it is held no liability was contracted because of limited powers on the part of the board of health or other contracting body or lack of sufficient contract: Town of New Decatur v. Berry, 90 Ala. 432; City of Ft. Wayne v. Rosenthal, 75 Ind. 156; Young v. Blackhawk Coun- ty, 66 Iowa, 460; Gill v. Appanoose County, 68 Iowa, 20; Pusey v. Meade County Ct, 64 Ky. (1 Bush) 217; Kellogg v. Inhabitants of St. George, 28 Me. 255; Childs v. Inhabitants of Phillips, 45 Me. 408; Rae v. City of Flint, 51 Mich. 526; Wilkinson v. Town of Albany, 28 N. H. (8 Fost.) 9; Mclntire v. Town of Pembroke, 53 N. H. 462; People v. Trustees of Village of Penn Yan, 2 App. Div. 29, 37 N. Y. Supp. 535; City of Williams- port v. Richter, 81 Pa. 508. '*> Graves v. City of Bloomington, 17 111. App. 476; Lake Erie & W. R. Co. v. James, 10 Ind. App. 550, 35 N. E. 395, 38 N. E. 192. But see opinion of Lotz, C. J.; Austin v. Murray, 33 Mass. (16 Pick.) 121; Wyse v. Police Com'rs of New Jer- sey, 68 N. J. Law, 127, 52 Atl. 281. so Young v. Mahoning County Com'rs, 51 Fed. 585; Ex parte Bo- hen, 115 Gal. 372; Concordia Ceme- tery Ass'n v. Minnesota & N. W. R. Co., 121 111. 199; Bogert v. City of Indianapolis, 13 Ind. 134; City of New Orleans v. Wardens of St. Louis Church, 11 La. Ann. 244; Com. v. Fahey, 59 Mass. (5 Gush.) 408; Com. v. Goodrich, 95 Mass. (13 Allen) 546; Woodlawn Cemetery v. Inhab- itants of Everett, 118 Mass. 354; Brick Presbyterian Church Corp. v. City of New York, 5 Cow. (N. Y.) 538; Page v. Symonds, 63 N. H. 17; People v. Pratt, 129 N. Y. 68; Eickel- berg v. Board of Health of Newtown, 47 Hun (N. Y.) 371; Wygant v. Mc- Lauchlan, 39 Or. 429, 64 Pac. 867; Craig v. First Presbyterian Church of Pittsburgh, 88 Pa. 42; City of Philadelphia v. Westminster Ceme- tery Co., 162 Pa. 105; City Council of Charleston v. Wentworth St. Bap- 222 POWERS. 121 121. Their liability. Boards of health or health officers may, in the performance of their duties, destroy private property or injuriously affect rights of third parties in excess of their authority. The question of their liability then arises, and this may be either a personal one 81 or their acts may be performed in such manner as to create a liability, by consent of the state, resting upon the public agency they represent. 82 Such boards or agencies are invested with duties of a governmental character, the preservation of the pub- lic health, to be exercised for the benefit of the community at large. In, the performance of their official duties when properly done and within the limits of their jurisdiction and powers, there can be no liability, either of a personal nature or against them tist Church, 4 Strob. (S. C.) 306; City of Austin v. Austin City Ceme- tery Ass'n, 87 Tex. 330; Pfleger v. Groth, 103 Wis. 104. A cemetery or place of burial is not considered, or- dinarily, a nuisance per se but the conditions and circumstances sur- rounding it may make it such. County of Los Angeles v. Hollywood Cemetery Ass'n, 124 Cal. 344; Town of Lake View v. Letz, 44 111. 81; Town of Lake View v. Rose Hill Cemetery Co., 70 111. 191; Begein v. City of Anderson, 28 Ind. 79; Barnes v. Hathorn, 54 Me. 124; Monk v. Packard, 71 Me. 309; Grossman v. City of Oakland, 30 Or. 478; Ex parte Wygant, 39 Or. 429; Dunn v. City of Austin, 77 Tex. 139. See, also, the following cases pass- ing upon the question of the inter- ment of the dead within municipal limits or restricting the' location of a cemetery to particular locations: Scovill v. McMahon, 62 Conn. 378; City of Newark v. Watson, 56 N. J. Law, 667; Coates v. City of New York, 7 Cow. (N. Y.) 585; People v. Pratt, 129 N. Y. 68; Wardens of St. Peter's Episcopal Church v. Town of Washington, 109 N. C. 21; Kincaid's Appeal, 66 Pa. 411; Craig v. First Presbyterian Church of Pittsburgh, 88 Pa. 42; City of Austin v. Austin City Cemetery Ass'n, 87 Tex. 330. si Beers v. Board of Health, 35 La. Ann. 1132; Miller v. Horton, 152 Mass. 540; Shipman v. State Live- stock Sanitary Commission, 115 Mich. 488; Webb v. Detroit Board of Health, 116 Mich. 516; Pearson v. Zehr, 138 111. 48, 29 N. E. 854, 32 Am. St. Rep. 113; Newark & S. O. H. R. Co. v. Hunt, 50 N. J. Law, 308, 12 Atl. 697. 82 Mead v. City of New Haven, 40 Conn. 72, 20 Am. Rep. 468; Ogg v. City of Lansing, 35 Iowa, 495; Fowl- er v. Kansas City, 64 Kan. 566, 68 Pac. 33; Brown v. Inhabitants of Vinalhaven, 65 Me. 402; Barbour v. City of Ellsworth, 67 Me. 294; Gil- boy v. City of Detroit, 115 Mich. 121 and cases cited. No liability cre- ated even when injury resulted from negligence of city board of health. Maxmilian v. City of New York, 62 N. Y. 160, 16 Am. Rep. 14; Prichard v. Com'rs of Morganton, 126 N. C. 908; City of Richmond v. Long's Adm'rs, 17 Grat. (Va.) 375. 121 POLICE POWER. 223 in their capacity as public agents. 83 They necessarily must be vested with a large discretion in the performance of their duties, and so long as this discretion is exercised in a reasonable man- ner and in good faith, their acts cannot create liabilities. The presumption that they are acting in good faith and under lawful authority applies. The discretion given to such bodies or officers does not, however, permit them to promulgate regulations or rules in violation of constitutional provisions. 84 ss Forbes v. Board of Health of Escambia County, 28 Fla. 26. "These boards are created for public pur- poses in the exercise of the police power of the state and they have no corporate interest in the exaction of the powers given them. * * * An examination of the authorities and the principles governing such cases leads us to the conclusion that de- fendant was invested with public functions and the duties it owed were to the public and as such it comes within the sphere of public functionaries exempt from liability In tort unless such remedy should be given by statute." Frazer v. City of Chicago, 186 111. 480; Tweedy v. Fremont County, 99 Iowa, 721, 68 N. W. 921; Compagnia Francaise de Navigation a Vapeur v. State Board of Health, 51 La, Ann. 645, 72 Am. Bt. Rep. 458; affirmed 186 U. S. 380, 82 Sup. Ct. 811; Hall v. Staples, 166 Mass. 399; Danaher v. City of Brooklyn, 51 Hun (N. Y.) 563; City of Dallas v. Allen (Tex. Civ. App.) 40 S. W. 324. s* In Smith v. St. Louis & S. W. R. Co., 181 U. S. 248, the court speaking through Justice McKenna 6aid: "It is urged that it does not appear that the action of the live stock sanitary commission was taken on sufficient information. It does not appear that it was not, and the presumption which the law at- taches to the acts of public officers must obtain and prevail. The plain- tiff in error relies entirely on ab- stract right which he seems to think cannot depend upon any circumstan- ces or be affected by them. This is a radical mistake. It is the char- acter of the circumstances which gives or takes from a law or regula- tion of quarantine a legal quality. In some cases the circumstance would have to be shown to sustain the quarantine, as was said in Kim- mish v. Ball, 129 U. S. 217. But the presumptions of the law are proof, and such presumptions exist in the pending case arising from the provi- sions of and the duties enjoined by the statute, and sanction the action of the sanitary commission and the government of the state. If they could have been they should have been met and overcome." Wong Wai v. Williamson, 103 Fed. 1; Jew Ho v. Williamson, 103 Fed. 10; Ray- mond v. Fish, 51 Conn. 80; Forbes v. Board of Health of Escambia County, 28 Fla. 26. Love v. City of Atlanta, 95 Ga. 129, where the court say: "In the discharge of such duties as pertain to the health department of the state, the state is acting strictly in the discharge of one of the func- tions of government. If the state delegate to a municipal corporation, either by general law or by particu- lar statute, this power, and impose upon it, within its limits, the du*y 224 POWERS. 121 Their discretionary measures, or findings of fact, the basis of these discretionary measures, when clearly within constitutional of taking such steps and such meas- ures as may be necessary to the preservation of the public health, the municipal corporation likewise, in the discharge of such duty, is in the exercise of a purely governmental function, affecting the welfare not only of the citizens resident within its corporation, but of the citizens of the commonwealth generally, all of whom have an interest in the pre- vention of infectious or contagious diseases at any point within the state, and in the exercise of such powers is entitled to the same im- munity against suit as the state it- self enjoys. Such a duty would stand upon the same footing as its duty to preserve the public peace, and its liability or nonliability would depend upon the same principle which relieves the city from liability for the misfeasance of a police offi- cer in the discharge of his duty." Wyatt v. City of Rome, 105 Ga. 312 ; Ogg v. City of Lansing, 35 Iowa, 495; Rudolphe v. City of New Or- leans, 11 La. Ann. 242; Mitchell v. City of Rockland, 52 Me. 118; Sea- vey v. Preble, 64 Me. 120; Barbour v. City of Ellsworth, 67 Me. 294. Bryant v. City of St. Pa.ul, 33 Minn. 289. "The duty is imposed by the legislature upon the board of health under the police power to be exercised for the benefit of the pub- lic generally; it is one in which the city corporation has ho particular interest and from which it derives no special benefit in its corporate capacity. And we think it clear that, as respects an agency thus cre- ated for the public service, the city should not be held liable for the manner in which such service is performed by the board. It is bound to discharge its official duty not by virtue of its responsibility to the municipality, but for the general welfare of the community, and no action will lie against the city for the acts of the board unless given by statute. The duties of such offi- cers are not of that class of munici- pal or corporate duties with which the corporation is charged in con- sideration of charter privileges, but are police or governmental func- tions, which could be discharged equally well through agents appoint- ed by the state, though usually as- sociated with and appointed by the municipal body. The nature of the duties as public are the same in ei- ther case." Citing Ogg v. City of Lansing, 35 Iowa, 495; Fisher v. City of Boston, 104 Mass. 87; Tind- ley v. City of Salem, 137 Mass. 171; Condict v. Jersey City, 46 N. J. Law, 157; Maxmilian v. City of New York, 62 N. Y. 160; Smith v. City of Rochester, 76 N. Y. 506; City of Rich- mond v. Long's Adm'rs, 17 Grat. (Va.) 375; Welsh v. Village of Rut- land, 56 Vt. 228; and Hayes v. City of Oshkosh, 33 Wis. 314. Bamber v. City of Rochester, 26 Hun (N. Y.) 587; City of Rich- mond v. Long, 17 Grat. (Va.) 375; Lowe v. Conroy (Wis.) 97 N. W. 942; Williams, Mun. Liab. Tort, 189 et seq.; Jones, Neg. Mun. Corp. 30 and cases cited. But see Haag v. Vanderburg County Com'rs, 60 Ind. 511; Dooley v. Kansas City, 82 Mo. 444; Lockwood v. Bartlett, 54 Hun (N. Y.) 636, and Aaron v. Broilles, 64 Tex. 316. 122 POLICE POWER. 225 limitations, though not conclusive, will not ordinarily be re- viewed by the courts. 86 122. Quarantines and quarantine regulations. One of the most effectual means for preventing the spread of contagious or infectious diseases during an epidemic is the es- tablishment of a quarantine, 86 and in addition to the rules and regulations enforced by the state for the preservation of the public health through any of its permanent agencies, it may es- tablish, during the emergency, a board of quarantine having spe- cial charge or control of the suppression of the epidemic; or special and extraordinary powers may be given to ordinary and existing agencies. 87 Rules and regulations may be adopted not only for the purpose of preventing the spread of diseases afflict- ing persons 88 but as affecting and detrimental to the public health, also for the suppression and prevention of their spread among domestic animals. 89 The public authorities have the ss Jew Ho v. Williamson, 103 Fed. 10; Blue v. Beach, 155 Ind. 121. se See note 25 Am. Law Rev. 45. In Metcalf v. City of St. Louis, 11 Mo. 102, a quarantine law was at- tacked as unconstitutional. The court said: "The same division of the powers of government as is found in the Constitution of this state is to be found likewise in the Constitutions of the several states of this Confederacy; the same power given to the municipal authority of St. Louis is to be found in the laws of most of the states given to the municipal authorities created by the laws of such states; and similar or- dinances to the one under considera- tion have been adopted and when oc- casion required enforced by the municipal authorities under the power conferred by their charter; and we know of no single instance in which any court has held that it was not a legitimate exercise of pow- er." 87 Ferrari v. Board of Health of Escambia County, 24 Fla. 390, 5 So. 1; Forbes v. Board of Health of Es- cambia County, 28 Fla. 26; Lynde v. City of Rockland, 66 Me. 309. ss Compagnie Francaise de Navi- gation a Vapeur v. Louisiana State Board of Health, 186 U. S. 380, 22 Sup. Ct. 811; Milne v. Davidson, 5 Mart. (N. S.; La.) 409, 16 Am. Dec. 189; City of Anderson v. O'Conner, 98 Ind. 168; Warner v. Stebbins, 111 Iowa, 86, 82 N. W. 457; Haverty v. Bass, 66 Me. 71; Harrison v. City of Baltimore, 1 Gill (Md.) 264; Train v. Boston Disinfecting Co., 144 Mass. 523; People v. Brady, 90 Mich. 459; Highland v. Schulte, 123 Mich. 360; City of St. Louis v. Bofflnger, 19 Mo. 13; Lawton v. Steele, 119 N. Y. 226; In re Smith, 146 N. Y. 68. Health officers not authorized to quarantine persons refusing to be vaccinated. , 89 Field v. Clark, 143 U. S. 649; Haller v. Sheridan, 27 Ind. 494. Hy- drophobia. Walker v. Towle, 156 Ind. 639. An ordinance held valid requiring AbD. Corp. 15. 226 POWERS. 122 power to prevent the passing or repassing of quarantine lines or limits; 90 the right to establish and maintain hospitals or pest houses in which sick persons may be confined, 91 and the right to remove to such places persons afflicted. 92 They also have the right to destroy or disinfect property inoculated or supposed to be with the germs of the disease 93 without creating a liability or the mayor to issue a proclamation compelling all owners of dogs to muzzle them when an epidemic of hydrophobia is reasonably to be ap- prehended. Warner v. Stebbins, 111 Iowa, 86; City of Hagerstown v. Witmer, 86 Md. 293; Hubbard v. Preston, 90 Mich. 221; St. Louis S. W. R. Co. v. Smith, 20 Tex. Civ. App. 451; 28 Am. Law Rev. 621; 30 Am. St. Rep. 426; 97 Am. Dec. 82; 2 Tiedeman, State & Fed. Control of Persons & Prop. p. 829. *o Wilson v. Alabama G. S. R. Co., 77 Miss. 714. "But regard must also be had to the liberty of the citizen and both principles must be given reciprocal play. The public health must be vigilantly cared for but with due caution that no order in- tended to secure it shall be so sweep- ing and arbitrary as to interfere un- reasonably with the citizen's right of return to his home neither he nor it having been exposed to infection." Courter v. Board of Health of New- ark, 54 N. J. Law, 325; People v. Roff, 3 Parker Cr. R. (N. Y.) 216; Young v. Flower, 3 Misc. 34, 22 N. Y. Supp. 332; Salisbury Com'rs v. Powe, 51 N. C. (6 Jones) 134; State v. Butts, 3 S. D. 577, 54 N. W. 603. i City of Chicago v. Peck, 196 111. 260, 63 N. E. 711; City of Anderson v. O'Conner, 98 Ind. 168: "In the exercise of its power and in the per- formance of its duty the appellant rented the house described in the complaint. * * * It is certain the appellant rented the house for a pest house. The act thus done was not only within the corporate power of the appellant but it was within its duty under the law." Staples v. Plymouth County, 62 Iowa, 364; City of Baltimore v. Fairfield Imp. Co., 87 Md. 352. The placing of a wo- man afflicted with leprosy in a pri- vate house is not the establish- ment of a hospital for the treatment of infectious diseases as authorized by the statutes. Aull v. City of Lex- ington, 18 Mo. 401; Boom v. City of Utica, 2 Barb. (N. Y.) 104; City of Richmond v. Henrico County Sup'rs, 83 Va. 204. 2 Minneapolis, St. P. & S. S. M. R. Co. v. Milner, 57 Fed. 276; Henge- hold v. City of Covington, 108 Ky. 752, 57 S. W. 495; Mitchell v. City of Rockland, 41 Me. 363; Haverty v. Bass, 66 Me. 71; Lynde v. City of Rockland, 66 Me. 309; Harrison v. City of Baltimore, 1 Gill (Md.) 284; Spring v. Inhabitants of Hyde Park, 137 Mass. 554; Aaron v. Broiles, 64 Tex. 316; Tiedeman, State & Fed. Control of Persons & Prop. 44. 93 in Town of Greensboro v. Ehrenreich, 80 Ala. 579, it was held that a city could not within a proper exercise of its police power pro- hibit dealing in second-hand gar- ments or bedding not having been used by persons having infectious diseases. Ex parte O'Donovan, 24 Fla. 281; Belcher v. Farrar, 90 Mass. (8 Allen) 325; Train v. Boston Dis- infecting Co., 144 Mass. 523, 59 Am. 123 POLICE POWER. 227 right of compensation except as given by statute. 94 Quarantine measures relating to the suppression and prevention of contagious and infectious diseases having penalties attached for their viola- tion are usually considered penal statutes and therefore con- strued strictly. 95 123. Police power respecting the regulation of occupations. The state directly or through its subordinate agencies may in the proper exercise of the police power exercise supervision over and a regulation of the manner of carrying on the occupation? of those within its jurisdiction. 96 This regulation may consist Rep. 113. "The board of health is invested by the legislature with the power to make regulations necessary for the health and safety of the in- habitants, extending to all persons, goods and effects arriving in vessels. * * * This is a reasonable regu- lation, made under the police power of the state, which the board is ex- ecuting. Nor, legislation having pro- vided that all expenses incurred on account of goods under quarantine laws shall be paid by the owner, is it competent for the owner as a de- fense to this claim to show that the goods did not require disinfection, and could not have transmitted dis- ease, if they were of the class con- cerning which the regulation had been made." Hurst v. Warner, 102 Mich. 238, 47 Am. St. Rep. 525; Webb v. De- troit Board of Health, 116 Mich. 516; Newark & S. 0. H. C. R. Co. v. Hunt, 50 N. J. Law, 308, 12 Atl. 697. Destruction of glandered horses au- thorized; Polinsky v. People, 73 N. Y. 65; Health Dept. of New York v. Knoll, 70 N. Y. 530; Town Council of Summerville v. Pressley, 33 S. C. 56, 11 S. E. 545. 9* Webb v. Detroit Board of Health, 116 Mich. 516, 72 Am. St. Rep. 541; Farnsworth v. Kalkaska's Sup'rs, 56 Mich. 640, 23 N. W. 465; Shipman v. State Live-Stock Sani- tary Commission, 115 Mich. 488, 73 N. W. 817. 95 Pierce v. Dillingham, 96 111. App. 300. 96 Butchers' Union S. H. & L. S. Landing Co. v. Crescent City L. S. L. & Slaughter-House Co., Ill U. S. 746; Tick Wo v. Hopkins, 118 U. S. 356. In this case where a Chinese laundry ordinance passed by the city of San Francisco was held unconsti- tutional, Mr. Justice Matthews said: "For the very idea that one man may be compelled to hold his life or the means of living, or any material right essential to the enjoyment of life at the mere will of another, seems to be intolerable to any coun- try where freedom prevails, as being the essence of slavery itself." J'er- guson v. City of Selma, 43 Ala. 398; Barton v. City of New Orleans, 16 La. Ann. 317; Belcher v. Farrar, 5)0 Mass. (8 Allen) 325; Wilkinson v. Town of Albany, 28 N. H. 9; Hutton v. City of Camden, 39 N. J. Law, 122, 23 Am. Rep. 203; Weil v. Ri- cord, 24 N. J. Eq. (9 C. E. Green) 169; Bertholf v. O'Reilly, 74 N. Y. 509; People v. Marx, 99 N. Y. 377. In re Jacobs, 98 N. Y. 98. "So, too, one may be deprived of his lib- 223 POWERS. 12 either in ordinances or orders prohibiting the carrying on of cer- tain occupations within certain limits, for example laundries and slaughtering houses, 97 or the prohibition altogether of certain erty, and his constitutional rights thereto violated, without the actual imprisonment or restraint of his person. Liberty, in its broad sense, as understood in this country, means the right, not only of freedom from actual servitude, imprisonment or restraint, but the right of one to use his faculties in all lawful ways, to live and work where he will, to earn his livelihood in any lawful calling, and to pursue any lawful trade or avocation. All laws, therefore, which impair or trammel these rights, which limit one in his choice of a trade or profession, or confine him to work or live in a specified local- ity, or exclude him from his own house, or restrain his otherwise law- ful movements (except as such laws may be passed in the exercise by the legislature of the police power, which will be noticed later), are in- fringements upon his fundamental rights of liberty, which are under constitutional protection." Salisbury Com'rs v. Powe, 51 N. C. (6 Jones) 134; 1 Tiedeman, State & Fed. Con- trol of Persons & Prop. 120 with authorities cited. Horr. & Bemis, Mun. Ord. 211 et seq. T The power as applied to the control of markets. City of New Orleans v. Graffina, 52 La. Ann. 1082. Regulations respecting laundries held invalid. Yick Wo v. Hopkins, 118 U. S. 356; In re Laundry Ordi- nance Case, 7 Sawy. 526, 13 Fed. 229. The city council of San Fran- cisco passed an ordinance that no laundry should be carried on in any block save by the consent of twelve citizens and taxpayers in the block in which the proposed laundry was to be located. Justice Field in speaking for the court against the validity of this ordinance on the ground of unreasonableness said: "A party might not even be able to obtain a license to carry on business on his own land, provided he should possess an entire block, and it should not be occupied by others who could give the recommendation exacted. * * * It may be doubted whether such a restriction could be author- ized by any legislative body under our form of government." In re Sam Kee, 31 Fed. 680; City of Shreveport v. Robinson, 51 La. Ann. 1314. Regulations respecting laundries held valid. Soon Hing v. Crowley, 113 U. S. 703; Ex parte Moynier, 65 Cal. 33; In re Hang Kie, 69 Cal. 149; City of New Orleans v. Kee, 107 La. 762, 31 So. 1014. The powers exercised as to slaugh- ter houses: Butchers' Union Slaugh- ter House & L. S. Landing Co. v. Crescent City Live Stock Landing & S. H. Co., Ill U. S. 746; Barthet v. City of New Orleans, 24 Fed. 563; Cocker v. Du Village Du Coteau Landing, 16 Rap. Jud. Que. C. S. 72; Boyd v. City Council of Montgomery, 117 Ala. 677; Ex parte Shrader, 33 Cal. 279; Ex parte Heilbron, 65 Cal. 609; Tugman v. City of Chicago, 78 111. 405; Huesing v. City of Rock Island, 128 111. 465; Harmison v. Lewistown, 153 111. 313; Rund v. Town of Fowler, 142 Ind. 214; Beil- ing v. City of Evansville, 144 Ind. 644; Beckham v. Brown, 19 Ky. L. R. 519, 40 S. W. 684; Berthin v. Cres- 123 POLICE POWER. 229 trades and occupations. 98 These regulations may also require the possession of certain qualifications or a minimum knowledge cent City Live-Stock Landing & S. H. Co., 28 La. Ann. 210; Sawyer v State Board of Health, 125 Mass. 182; City of Cambridge v. Trelegan, 181 Mass. 565, 64 N. E. 204; Wre- ford v. People, 14 Mich. 41; City of St. Paul v. Smith, 25 Minn. 372. Ordinance does not apply to the killing and dressing of a single ani- mal. City of St. Paul v. Byrnes, 38 Minn. 176; City of St. Louis v. How- ard, 119 Mo. 41; Cronin v. People, 82 N. Y. 318; City of Portland v. Meyer, 32 Or. 368; City of Spokane v. Robison, 6 Wash. 547; City of Mil- waukee v. Gross, 21 Wis. 241; Hahn v. Thornberry, 70 Ky. (7 Bush) 406; Pflngst v. Senn, 94 Ky. 556, 23 S. W. 358. The principle applied in the following cases to the occupa- tions designated: Brick kilns: Ward v. Washing- ton Corp., 4 Cranch, C. C. 232, 29 Fed. Gas. No. 17,163; State v. St. Louis Board of Health, 16 Mo. App. 8; Kirchgraber v. Loyd, 59 Mo. App. 59; Huckenstine's Appeal, 70 Pa. 102. Distilleries: Smith v. McConathy, 11 Mo. 517. Lime kilns; not ordinarily a nui- sance: State v. Mott, 61 Md. 297; Reynolds v. Schultz, 34 How. Pr. (N. Y.) 147; Slight v. Gutzlaff, 35 Wis. 75. Manufactories or establishments with noisome odors: Liebig Mfg. Co. v. Wales (Del.) 34 Atl. 902; First Municipality of New Orleans v. Blineau, 3 La. Ann. 688; Inhab- itants of Winthrop v. Farrar, 93 Mass. (11 Allen) 398; Zylstra v. City of Charleston, 1 Bay (S. C.) 382; Brantree Board of Health v. Boyton, 52 Law T. (N. S.) 99. Rendering and fertilizing estab- lishments: Northwestern Fertilizing Co. v. Village of Hyde Park, 97 U. S. 659; State v. Luce, 9 Houst. (Del.) 396; City of Athens v. Georgia R. Co., 72 Ga. 800; City of Taunton v. Taylor, 116 Mass. 254; Sawyer v. State Board of Health, 125 Mass. 182; Board of Health of Hamilton Tp. v. Neidt (N. J. Eq.) 19 Atl. 318; Manhattan Mfg. & Fertilizing Co. v. Van Keuren, 23 N. J. Eq. (8 C. E. Green) 251; Garrett v. State, 49 N. J. Law, 94; Board of Health of North Brunswick Tp. v. Lederer, 52 N. J. Eq. 675; Weil v. Schultz, 33 How. Pr. (N. Y.) 7; Schuster v. Metro- politan Board of Health, 49 Barb. (N. Y.) 450. Tanneries: May v. People, 1 Colo. App. 157; Lippman v. City of South Bend, 84 Ind. 276; Kennedy v. Phelps, 10 La. Ann. 227; Weil v. Ricord, 24 N. J. Eq. (9 C. E. Green) 169; State v. Cadwalader, 36 N. J. Law, 283. Miscellaneous: Town of Arka- delphia v. Clark, 52 Ark. 23; Green v. City of Savannah, 6 Ga. 1. Rice growing. City of St. Louis v. Frein, 9 Mo. App. 590. Quarry. City of Kansas v. McAleer, 31 Mo. App. 433; Town Council of Somerville v. Pressley, 33 S. C. 56. Rice grow- ing. Town of Davis v. Davis, 40 W. Va. 464. 98 O'Dell v. City of Atlanta, 97 Ga. 670, 25 S. E. 173; Com. v. Reid, 175 Mass. 325, pool selling; State v. Schoenig, 72 Minn. 528; State v. Beattie, 16 Mo. App. 131, livery stable; State v. Fisher, 52 Mo. 174, rendering establishment; City of St. Louis v. Fischer, 167 Mo. 654, dairy; New York Sanitary Utiliza- 230 POWERS. 123 of certain branches of study or trades by those desiring to pursue a certain calling, occupation or profession. These, so long as they are ufiiform in their application, reasonable and pertinent, will be considered valid." The state may also require the se- tion Co. v. Dept. of Health of New men as citizens to engage in any York, 61 App. Div. 106, 70 N. Y. and every profession, occupation, or Supp. 510. An act prohibiting the employment in civil life. It cer- carrying on of the business of ren- tainly cannot be affirmed, as an his- dering held unconstitutional as not torical fact, that this has ever been a proper exercise of the police pow- established as one of the funda- er. mental privileges and immunities as Barbers: Fillmore v. Van of the sex. On the contrary, the Horn, 129 Mich. 52, 88 N. W. 69; civil law, as well as nature herself, State v. Zeno, 79 Minn. 80, 81 N. has always recognized a wide dif- W. 748; Ex parte Lucas, 160 Mo. ference in the respective spheres 218. and destinies of man and woman. Dentists: Gosnell v. State, 52 Man is, or should be, woman's pro- Ark. 228; Patrick v. Ferryman, 52 tector and defender. The natural 111. App. 514; People v. Illinois and proper timidity and delicacy State Board of Dental Examiners, which belongs to the female sex 110 111. 180; Illinois State Board of evidently unfits it for many of the Dental Examiners v. People, 123 occupations of civil life. The con- Ill. 227; Ferner v. State, 151 Ind. stitution of the family organiza- 247; State v. Creditor, 44 Kan. 565; tion, which is founded in the di- Knowles v. State, 87 Md. 204; Wil- vine ordinance, as well as in the liams v. State Board of Dental Ex- nature of things, indicates the aminers, 93 Tenn. 619. domestic sphere as that which prop- Intelligence offices and labor agen- erly belongs to the domain and cies: Keim v. City of Chicago, 46 functions of womanhood. * * * 111. App. 445; State v. Von Sachs, In the nature of things it is not 45 La. Ann. 1416. An ordinance re- every citizen of every age, sex, and quiring a bond of a labor agency condition that is qualified for every held unconstitutional. calling and position. It is the pre- Lawyers: Cummings v. State of rogative of the legislature to pre- Missouri, 71 U. S. (4 Wall.) 277; Ex scribe regulations founded on na- parte Garland, 71 U. S. (4 Wall.) ture, reason, and experience for the 333; In re Lockwood, 154 U. S. 116; due admission of qualified persons In re Dorsey, 7 Port. (Ala.) 293; Co- to professions and callings demand- hen v. Wright, 22 Cal. 293; Ex parte ing special skill and confidence. Yale, 24 Cal. 241; In re Thomas, 16 This fairly belongs to the police Colo. 441; Ex parte Law, 35 Ga. power of the state; and in my opin- 285; In re Bradwell, 55 111. 535; ion, in view of the peculiar charac- Bradwell v. State of Illinois, 83 U. teristics, destiny, and mission of S. (16 Wall.) 130. In the opinion woman, it is within the province of of Judge Bradley, page 141, the fol- the legislature to ordain what offi- lowing is found: "It is one of the ces, positions, and callings shall be privileges and immunities of wo- filled and discharged by men, and 123 POLICE POWER. 231 curing of a license from the proper authorities before certain shall receive the benefit of those en- ergies and responsibilities, and that decision and firmness which are presumed to predominate in the sterner sex." In re Leach, 134 Ind. 665; State v. Start, 7 Iowa, 499; In re Mills, 1 Mich. 392; State v. Wat- kins, 3 Mo. 480; Austin v. State, 10 Mo. 591; Ricker's Petition, 66 N. H. 207; Ex parte Fisher, 6 Leigh (Va.) 619; Presby v. Klickitat Coun- ty, 5 Wash. 329; Cooley, Torts, pp. 289 et seq. Livery stable keepers: Phillips v. City of Denver, 19 Colo. 179. But such a regulation must be reason- able. Coker v. Birge, 10 Ga. 336; Rowland v. City of Chicago, 108 111. 496; City of Chicago v. Stratton, 162 111. 494; reversing 58 111. App. 539; Shiras v. Olinger, 50 Iowa, 571; Williams v. Garignes, 30 La. Ann. 1094, defining a livery stable; Hastings v. Aiken, 67 Mass. (1 Gray) 163; City of Newton v. Joyce, 166 Mass. 83; State v. Beattie, 16 Mo. App. 131; City of St. Louis v. Russell, 116 Mo. 248; Kirkman v. Handy, 30 Tenn. (11 Humph.) 406. Plumbers: United States v. Ross, 5 App. D. C. 241; State v. Gardner, 58 Ohio St. 599; People v. Warden of City Prison, 81 Hun, 434, 30 N. Y. Supp. 1095, affirmed 144 N. Y. 529; State v. Benzenberg, 101 Wis. 172. Physicians and surgeons: Rich- ardson v. State, 47 Ark. 562; Love v. Sheffelin, 7 Fla. 40; Great West- ern R. Co. v. Bacon, 30 111. 347; Eastman v. People, 71 111. App. 236. A statutory provision will be valid requiring a license for practice in osteopathy but the discrimination against a particular school of medi- cine is unconstitutional. See, Driscoll v. Com., 93 Ky. 393. France v. State, 57 Ohio St. 1; Peo- ple v. Arendt, 60 111. App. 89; Har- baugh v. City of Monmouth, 74 111. 367; Williams v. People, 121 111. 84; Eastman v. State, 109 Ind. 278; Orr v. Meek, 111 Ind. 40; State v. Web- ster, 150 Ind. 607; Massie v. Mann, 17 Iowa, 131; Robinson v. Hamil- ton, 60 Iowa, 134; Iowa Eclectic Medical College Ass'n v. Schrader, 87 Iowa, 659; State v. Bair, 112 Iowa, 466; Hargan v. Purdy, 93 Ky. 424; Allopathic State Board of Medical Examiners v. Fowler, 50 La. Ann. 1358, 24 So. 809; Hewitt v. Char- ier, 33 Mass. (16 Pick.) 353; Com. v. Roswell, 173 Mass. 119; Wheeler v. Sawyer (Me.) 15 Atl. 67. A "Christian Scientist" may practice upon securing a certificate of- good moral character as required by statute. People v. Phippin, 70 Mich. 6; State v. State Medical Examining Board, 32 Minn. 324; State v. Hath- away, 115 Mo. 36; Dee v. State, 68 Miss. 601; Craig v. Board of Med- ical Examiners, 12 Mont. 203; Dogge v. State, 17 Neb. 140; Gee Wo v. State, 36 Neb. 241; State v. Buswell, 40 Neb. 158. Nebraska statutes relative to the practice of medicine include persons healing by "Christian Science." In re Roe Chung, 9 N. M. 130, 49 Pac. 952; Ex parte Spinney, 10 Nev. 323; White v. Carroll, 42 N. Y. 161; Peo- ple v. Fulda, 52 Hun (N. Y.) 65; State v. Van Doran, 109 N. C. 864; State v. Call, 121 N. C. 643; Wert v. Clutter, 37 Ohio St. 347; France v. State, 57 Ohio St. 1; State v. Coleman, 64 Ohio St. 377; State v. Randolph, 23 Or. 74; Paquin v. State Board of Health, 19 R. I. 365. State Board of Health v. Roy, 22 232 POWERS. 123 trades or occupations can be followed. 100 The power also in- cludes the imposition of license fees to defray expenses connected R. I. 538. The authority given the state board of health to revoke a certificate to practice medicine for grossly unprofessional conduct is constitutional, not conferring judi- cial powers on the board in violation of the constitution. Antle v. State, 6 Tex. App. 202; People v. Has- brouck, 11 Utah, 291, 39 Pac. 918; State v. Carey, 4 Wash. 424; State v. Dent, 25 W. Va. 1; State v. Cur- rens, 111 Wis. 431, 87 N. W. 561, citing many cases. Pharmacists and druggists: Peo- ple v. Moorman, 86 Mich. 434; State v. Forcier, 65 N. H. 42; Suffolk Coun- ty v. Shaw, 21 App. Div. 146, 47 N. Y. Supp. 349; Mon Luck v. Sears, 29 Or. 421; State v. Heinemann, 80 Wis. 253. Steam engineers: Louisville & N. R. Co. v. Baldwin, 85 Ala. 619; State v. McMahon, 65 Minn. 453. Miscellaneous: Merrill v. Cahill, 8 Mich. 55. Millers and mill owners. City of St. Paul v. Traeger, 25 Minn. 248; City of St. Louis v. Meyrose Lamp Mfg. Co., 139 Mo. 560, 41 S. W. 244. The court here said: "Such or- dinances merely prescribe regula- tions for the orderly conduct of a very necessary * * * business In the large centers of popula- tion." City of St. Louis v. Knox, 74 Mo. 79; City of St. Louis v. Weit- zel, 130 Mo. 600; White v. Kent, 11 Ohio St. 550. Auction sales. See, also, generally, 132, and those, post, relating to license fees and the granting of licenses. 100 State v. Orr, 68 Conn. 101; Noel v. People, 187 111. 587, pharmacists; Bessette v. People, 193 111. 334, horse-shoeing; City of Chicago v. Netcher, 183 111. 104, 55 N. E. 707. The court here discuss the restric- tions thrown about the police pow- er, and say in part: "In order to sustain legislative interference with the business of the citizen by virtue of the police power it is neces- sary that the act should have some reasonable relation to the subjects included in the power. If it is claim- ed that the statute or ordinance is referable to the police power the court must be able to see that it tends in some degree towards the prevention of offenses or the pres- ervation of the public health, mor- als, safety or welfare." An ordi- nance prohibiting the sale of meat and other articles in a place where dry goods and other specified mer- chandise is sold was therefore held void on the ground of an invasion of private rights under the guise of the police power. Wilkie v. City of Chi- cago, 188 111. 444, 58 N. E. 1004, plumbers; Com. v. Hubley, 172 Mass. 58, 51 N. E. 448; City of Grand Rap- ids v. De Vries, 123 Mich. 570; State v. McMahon, 69 Minn. 265, 72 N. W. 79; State v. Wagener, 77 Minn. 483, 80 N. W. 633, 778, 1134; State v. Ashbrook, 154 Mo. 375, an act classifying dealers in merchandise held unconstitutional; City of Buffa- lo v. Schleifer, 2 Misc. 216, 21 N. Y. Supp. 913; Dunham v. Trustees of Rochester, 5 Cow. (N. Y.) 462, requiring license of hucksters; Ros- enbaum v. City of Newbern, 118 N. C. 83. In State v. Hill, 126 N. C. 1139, a city ordinance relating to scavenger work, in the absence of a showing that it was reasonable, necessary and just, was held uncon- stitutional. In Borough of Shamo- kin v. Flannigan, 156 Pa. 43, an or- 123 POLICE POWER. 233 necessarily with supervision having for its object the preserva- tion of the public health. 101 The requirement that the license necessary shall only be issued by certain officers after investigation, has been held not an im- proper delegation of the power. 102 There exist as limitations upon all regulations or attempted regulations by the state, con- stitutional provisions protecting personal rights and property. These regulations are also subject to the general principles of law that they should be uniform, certain and impartial in their application. 103 Guaranties limiting the exercise of the police pow- er in respect to the matters suggested in this, as well as suc- ceeding sections, are to be found in those general constitutional provisions relative to life, liberty and the pursuit of happiness and the special provisions pertaining to personal liberty and se- curity including express or implied prohibitions of imprisonment for debt; religious liberty and freedom of conscience; the right to acquire, hold and dispose of property and to contract; free- dom of speech; the right of assembly and petition; the destruc- dinance requiring the securing of a license for selling goods from house to house not applying to residents of a borough held a discriminating trade regulation and void; and in Brownback v. Borough of North Wales, 194 Pa. 609, an ordinance to the same effect but making no such discrimination was sustained as a valid exercise of the police power. See, also, as holding with Borough of Shamokin v. Flannigan, supra, City of Saginaw v. McKnight, 106 Mich. 32, 63 N. W. 985, and Clem- ents v. Town of Casper, 4 Wyo. 494, 35 Pac. 472. See, also, generally 398 to 407, post, relating to license fees. 101 City of Fayetteville v. Carter, 52 Ark. 301; City of Hot Springs v. Curry, 64 Ark. 152; Atkins v. Phil- lips, 26 Fla. 281, 8 So. 429; Mestay- er v. Corrige, 38 La. Ann. 707; Ex parte Canto, 21 Tex. App. 61; Horr. & Bemis, Mun. Ord., 128. 102 Louisville Gas Co. v. Citizens' Gas Co., 115 U. S. 683; Overshiner v. State, 156 Ind. 187. In People v. Hurlbut, 24 Mich. 44, the court said in speaking of this point: "The leg- islature in prescribing new rules has necessarily a large discretion as to whether the agencies for putting them in force shall be named by themselves or delegated." Com. v. Baldwin, 14 Phila. (Pa.) 93; Com. v. Vrooman, 164 Pa. 306; State v. Ha- good, 30 S. C. 519. 103 Tugman v. City of Chicago, 78 111. 405; Lasher v. People, 183 111. 226, 55 N. E. 663. Regulations are not invalid if based upon a classifica- tion resting on a reasonable ground of difference. State v. Manner, 43 La. Ann. 496; followed in State v. Dulaney, 43 La. Ann. 500; State v. Garibaldi, 44 La. Ann. 809; State v. Sarradat, 46 La. Ann. 700; State v. Kuntz, 47 La. Ann. 106; Town of Crowley v. West, 52 La. Ann. 526. 234 POWERS. 124 tion or impairment of vested or property rights; the taking of private property without payment of just compensation or the taking of life, liberty or property without due process of law. 104 The determination of the validity of all the regulations consid- ered in this section is a judicial question, not legislative. 105 124. Inspection of foods. The state, or the state through any of its properly delegated agents, in the proper exercise of the police power looking to the preservation of the public health, can pass laws, rules and regula- tions providing for the inspection of foods, 106 places of food sup- 104 Slaughter House Cases, 83 U. S. (16 Wall.) 36; Boyd v. United States, 116 U. S. 616; State v. Wil- liams, 68 Conn. 131; Beebe v. State, 6 Ind. 501. See Tiedeman, State & Fed. Control of Persons & Prop.; Horr. & Bemis, Mun. Ord., 83 et seq., and 211 et seq.; McQuillin, Mun. Ord. 29 et seq.; 10 Cen- tury Digest, column 1467 et seq. See, also, authorities cited under 115-117, ante. 105 Price v. People, 193 111. 114, citing Town of Lake View v. Rose Hill Cemetery Co., 70 111. 191, Ritch- ie v. People, 155 111. 98, and Booth v. People, 186 111. 43. loe State v. Campbell, 64 N. H. 402, 13 Atl. 585; Guillotte v. City of New Orleans, 12 La. Ann. 432; Gray v. City of Wilmington (Md.) 43 Atl. 94; City of Buffalo v. Collins Baking Co., 39 App. Div. 432, 57 N. Y. Supp. 347. Ordinance regulating weight of bakers' bread held void as being an unreasonable limitation on right to engage in a lawful trade. See, also, City of Rochester v. West, 29 App. Div. (N. Y.) 125; Ford v. Standard Oil Co., 32 App. Div. (N. Y.) 596. But see People v. Wagner, 86 Mich. 594, holding an ordinance valid regulating "the weight and quantity of bread, the size of the loaf and the inspection thereof." See the following cases especially relating to the inspection, sale and adulteration of milk: Johnson v. Simonton, 43 Cal. 242; State v. Schlecker, 112 Iowa, 642; State v. Fourcade, 45 La. Ann. 717; State v. Stone, 46 La. Ann. 147; Deems v. City of Baltimore, 80 Md. 164; Com. v. Flannelly, 81 Mass. (15 Gray) 195; Com. v. Waite, 93 Mass. (11 Al- len) 264; Com. v. Smith, 103 Mass. 444; Id., 141 Mass. 135; Com. v. Wetherbee, 153 Mass. 159; State v. Nelson, 66 Minn. 166; Littlefield v. State, 42 Neb. 223; State v. Camp- bell, 64 N. H. 402; Polinsky v. Peo- ple, 73 N. Y. 65; People v. Cipperly, 101 N. Y. 634; People v. West, 106 N. Y. 293; Com. v. Weiss, 139 Pa. 247; State v. Groves, 15 R. I. 208. Cases passing upon laws relating to .the inspection and sale of oleo- margarine or other substitutes for butter. Powell v. Pennsylvania, 127 U. S. 678, sustaining Pennsylvania Oleomargarine Act of May 21, 1885; United States v. Eaton, 144 U. S. 677; State of Ohio v. Thomas, 173 U. S. 276; Capital City Dairy Co. v. State of Ohio, 183 U. S. 238; affirm- ing 62 Ohio St. 350; United States v. Ford, 50 Fed. 467; Armour Pack- ing Co. v. Scyder, 84 Fed. 136; Wil- 124 POLICE POWER. 235 ply, 107 drugs and other articles intended for use or consumption; regulating their sale, 108 and confiscating and destroying such ar- kins v. United States, 96 Fed. 837; Cook v. State, 110 Ala. 40; State v. Snow, 81 Iowa, 642; Pierce v. State, 63 Md. 592; Com. v. Farren, 91 Mass. (9 Allen) 489; Com. v. Car- ter, 132 Mass. 12; Com. v. Huntley, 156 Mass. 236; Com. v. Kelly, 163 Mass. 169; State v. Bassett, 50 Minn. 5; Kansas City v. Cook, 38 Mo. App. 660; State v. Addington, 77 Mo. 110; State v. Marshall, 64 N. H. 549; In re Powell, 10 N. J. Law J. 25; Shivers v. Newton, 45 N. J. Law, 469; Waterbury v. Newton, 50 N. J. Law, 534; Dibble v. Hathaway, 11 Hun (N. Y.) 571; People v. McGann, 34 Hun (N. Y.) 358; People v. Ker- in, 39 Hun (N. Y.) 631; People v. Mahaney, 41 Hun (N. Y.) 26; Peo- ple v. Arensberg, 105 N. Y. 123; Palmer v. State, 39 Ohio St. 236; State v. Dunbar, 13 Or. 591; Com. v. Miller, 131 Pa. 118; Com. v. Shir- ley, 152 Pa. 170; State v. Smyth, 14 R. I. 100. Unwholesome foods. In re Ware, 53 Fed. 783, baking powder con- taining alum; Schmidt v. State, 78 Ind. 41, diseased meats; Com. v. Raymond, 97 Mass. 567, veal less than 4 weeks old; State v. Snyder, 44 Mo. App. 429; People v. Parker, 38 N. Y. 85, unwholesome meat; People v. Girard, 73 Hun (N. Y.) 457 adulterated vinegar; State v. Smith, 10 N. C. (3 Hawks) 378; State v. Norton, 24 N. C. (2 Ired.) 40; Weller v. State, 53 Ohio St. 77. Statutes or ordinances which pro- vide regulations for the inspection end sale of provisions must not on- ly comply with general constitution- al provisions in order to be valid, but must also be so worded and have on- ly such operation as to prevent their being unconstitutional because of an interference with or regulating in- terstate commerce. See the follow- ing cases among many others upon this proposition: State of Minneso- ta v. Barber, 136 U. S. 313; Brim- mer v. Rebman, 138 U. S. 78; Swift v. Sutphin, 39 Fed. 630; In re Bar- ber, 39 Fed. 641; State v. Klein, 126 Ind. 68; Hoffman v. Harvey, 128 Ind. 600. 107 Monroe v. City of Lawrence, 44 Kan. 607; State v. Nelson, 66 Minn. 166, 68 N. W. 1066, tuber- culosis in dairy herds. An ordi- nance provided that all milk sold in the city of Minneapolis should come only from dairy herds that had been inspected and subjected satisfactorily to a certain test. The objection was made that the pro- vision was unconstitutional as being extra-territorial. The court said: "The provisions of the ordinance in that regard go only so far as it is reasonably necessary to prevent the milk of diseased cows being sold within the city. * * * The ordi- nance has no extra-territorial opera- tion. The only subject upon which it operates is the sale of milk within the city." 108 i n re Ah Lung, 45 Fed. 684; City of Jacksonville v. Ledwith, 26 Fla. 163, 7 So. 885; Frost v. City of Chicago, 178 111. 250; City of Chi- cago v. Netcher, 183 111. 104. An or- dinance prohibiting the sale of pro- visions in the same place of busi- ness where dry goods, clothing or drugs are sold, held unconstitution- al. Isenhour v. State, 157 Ind. 517; State v. Schlenker, 112 Iowa, 642, 84 N. W. 698. The legislative def- 236 POWERS. 125 tides if found unwholesome or unfit. The limitations upon the exercise of the power in this particular are much the same as those against the exercise of the power in other respects. Such regulations must operate uniformly and not discriminate as be- tween individuals or localities; 109 must be reasonable, have for their real purpose the accomplishment of a lawful result, and come within the constitutional provisions protecting personal and property rights. Before articles condemned as unwhole- some can be destroyed or confiscated it has been held by some courts that there must be some proceeding provided at which the party whose property is affected can appear upon notice and have an opportunity to defend the findings or charges made. 110 125. Regulations as to the construction and use of buildings. Another valid exercise of the police power by the state is the adoption of rules and regulations in regard to the construction inition of adulterated milk as the "addition of water or any other sub- stance or thing" to milk "is hereby declared an adulteration" held not an unconstitutional invasion of the province of the judiciary. State v. Stone, 46 La. Ann. 147; Dickhaut v. State, 85 Md. 451; State v. Davidson, 50 La. Ann. 1297, 24 So. 324; City of New Orleans v. Lozes, 51 La. Ann. 1172; Deems v. City of Baltimore, 80 Md. 164, 30 Atl. 648; Sterens v. State, 89 Md. 669, 43 Atl. 919; People v. Wagner, 86 Mich. 594, ordinance regulating weight of loaves of bread held valid; People v. Rotter, 131 Mich. 250, 91 N. W. 167, and cases cited, oleo- margarine; Porter v. City of Water Valley, 70 Miss. 560, 12 So. 828; State v. Bockstruck, 136 Mo. 335, oleo- margarine; City of Kansas v. Cook, 38 Mo. App. 660; State v. Marshall, 64 N. H. 549, 15 Atl. 210, oleomar- garine; Bush v. Seabury, 8 Johns. (N. Y.) 327; Paige v. Fazackerly, 36 Barb. (N. Y.) 392; State v. Pen- dergrass, 106 N. C. 664; Ex parte Canto, 21 Tex. App. 61; Teague v. State, 25 Tex. App. 577, 8 S. W. 667; 57 Am. Rep. 742, 754 and 1 Am. St. Rep. 645, 650. io9Tugman v. City of Chicago, 78 111. 405; Pierce v. City of Aurora, 81 111. App. 670, holding an ordinance void for an unreasonable discrim- ination; City of Cairo v. Feuchter, 159 111. 155; Zanone v. Mound City, 103 111. 552; State v. Schlemmer, 42 La. Ann. 1166. no Munn v. Corbin, 8 Colo. App. 113, 44 Pac. 783. "An order author- izing the health commissioner to condemn and cause to be destroyed fluid or substance intended for food or drink whenever satisfied that its consumption might be injurious to public health, does not authorize the condemnation of such substance, ex- cept under extraordinary circum- stances, without a trial before a reg- ularly organized tribunal, in a pro- ceeding to which the person whose rights are to be affected is a party, and in which the burden of proving the charges is upon the complain- 125 POLICE POWER. 237 and occupation of buildings. 111 These regulations have for their direct purpose not only the protection of life, limb and property, but also the preservation of the public health. The use to which certain buildings can be put may result in a condition exceed- ingly deleterious to the health and safety not only of the occu- pants of the buildings themselves but of persons in the imme- diate vicinity, 112 and the state in such case has the unquestioned right of regulation. Through the cupidity or negligence of prop- erty owners, buildings may become unsafe for use, and the proper exercise of the police power by the state includes the passing of regulations remedying such condition. 113 It also includes the ant, and in which full opportunity is given the adverse party to make his defense." in Easton Com'rs v. Covey, 74 Md. 262, 22 Atl. 266. It is a discretionary power on the part of commissioners having the construc- tion of buildings in charge to refuse a desired permit. The court say: "We think it very clear that un- der a general power to pass such ordinances as the commissioners may deem necessary and beneficial to the town the commissioners may pass any ordinance which they may judge necessary and beneficial, and it will be valid provided it be rea- sonable and consonant with the gen- eral powers and purposes of the cor- poration and not inconsistent with the laws and policy of the state." Sprigg v. Town of Garrett Park, 89 Md. 406, 43 Atl. 813; City of Salem v. Maynes, 123 Mass. 372, holds that such an ordinance applied to one who had already constructed cellar for contemplated building, but see State v. Tenant, 110 N. C. 609. See City of Hudson v. Thome, 7 Paige (N. Y.) 261, for limitations upon right to prohibit erection of wooden buildings. City of Troy v. Winters, 2 Hun (N. Y.) 63; Hawke v. Brown, 28 App. Div. 37, 50 N. Y Supp. 1032; Signell v. Wallace, 38 Misc. 656, 72 N. Y. Supp. 348, con- struing New York Laws of 1901, c. 334, known as the tenement house act as amended by Laws of 1901, c. 555; followed and further con- strued in City of New York v. Herd- je, 68 App. Div. 370, 74 N. Y. Supp. 104. State v. Tenant, 110 N. C. 609. An ordinance prohibiting the erec- tion of a building without permit after a contractor had commenced the construction of a building, as to such building is void. City of Philadelphia v. Wall, 184 Pa. 557; City of Sioux Falls v. Kir- by, 6 S. D. 62, 60 N. W. 156. The legality of an ordinance requiring permit from building inspector con- sidered, with citation of many cases sustaining the position taken. See McQuillin Mun. Ord. 470, 471 with many cases cited; Horr. & Be- mis, Mun. Ord. 222-223, and Park- er & W. Pub. Health, cc. 19, 20. 112 Inhabitants of Brookline v. Hatch, 167 Mass. 380; People v. Ben- nett, 83 Mich. 457; Com. v. Charity Hospital of Pittsburg, 198 Pa. 270. See, also, 18 Am. Rep. 407. us Woodruff v. Bowen, 136 Ind. 431, 34 N. E. 1113; Town of Ports- mouth v. Snell, 8 N. H. 338. 238 POWERS. 125 right to control or regulate in the first instance, having as a pur- pose the protection of life, health, and property, either the di- mensions, 114 the manner, 115 or the place of construction. 116 This right to regulate the construction of buildings extends to re- pairs 117 as well as alterations or additions 118 and ornaments or 11* Attorney General v. Williams, 178 Mass. 330, 59 N. E. 812. See, also, Id., 174 Mass. 476, 55 N. E. 77; People v. D'Oench, 111 N. Y. 359; City of Cleveland v. Lenze, 27 Ohio St. 383. us See cases collected in 43 Alb. Law J. 349, note by W. S. Gordon; Hall v. Nixon, L. R. 10 Q. B. 152; United States v. Cole, 7 Mackey (D. C.) 504, and cases cited in opinion; McCulloch v. Ayer, 96 Fed. 178, fire escapes; Ex parte White, 67 Cal. 102; Diamond State Iron Co. v. Giles, 7 Houst. (Del.) 11 Atl. 189; Arms v. Ayer, 192 111. 601, fire es- cape regulation held valid; Ward v. City of Murphysboro, 77 111. App. 549; Inhabitants of Winthrop v. New England Chocolate Co., 180 Mass. 464, 62 N. E. 969; Hubbard v. City of Paterson, 45 N. J. Law, 310; Morford v. Board of Health of As- bury Park, 61 N. J. Law, 386, 39 Atl. 706, construing powers of boards of health as to manner of construction of buildings; Stewart v. Com., 10 Watts (Pa.) 307; Bar- ter v. Com., 3 Pen. & W. (Pa.) 253; Kneedler v. Borough of Norristown, 100 Pa. 368. But in this case it was held that a borough did not have the authority to forbid under pen- alty the erection of wooden build- ings within certain limits. Smith v. Milwaukee Builders' & Traders' Exch., 91 Wis. 360. See, also, Mc- Quillin Mun. Ord. 471, with many cases cited. us Phillips v. City of Denver, 19 Colo. 179, 34 Pac. 902. An ordi- nance prohibiting the construction of a livery stable in any block in which a school building is situated or adjacent without other conditions held unreasonable and void. Village of Louisville v. Webster, 108 111. 414; City of Abilene v. Cow- perthwait, 52 Kan. 324, 34 Pac. 795; City of Monroe v. Hoffman, 29 La. Ann. 651. The power to prohibit the erection of a building composed of combustible materials in densely built part of town an inherent power in municipal corporations. But State v. Schuchardt, 42 La. Ann. 49, 7 So. 67, holds that a municipal corporation in the absence of legis- lative authority has no such con- trol over the construction of build- ings. See, also, Pratt v. Borough of Litchfield, 62 Conn. 112; Easton Com'rs v. Covey, 74 Md. 262, 22 Atl. 266; City of Baltimore v. Radecke, 49 Md. 228; Hume v. City of New York, 74 N. Y. 264; City of Buffalo v. Chadeayne, 134 N. Y. 165; Liv- ingston v. Wolf, 136 Pa. 519, 20 Am. St. Rep. 936; Corporation of Knox- ville v. Bird, 80 Tenn. (12 Lea) 121, 47 Am. Rep; 326; Beall v. City of Seattle, 28 Wash. 593, 69 Pac. 12. 117 Borough of Stamford v. Stud- well, 60 Conn. 85, 21 Atl. 101; First Nat. Bank of Mt. Vernon v. Sarlls, 129 Ind. 201, validity of repair or- dinance determined; City of Newton v. Belger, 143 Mass. 598, building ordinance held invalid in this case; Donohue v. Kendall, 50 N. Y. Super. Ct. (18 J. & S.) 386; Quigley v. H. W. Johrs Mfg. Co., 26 App. Div. 434, 125 POLICE POWER. 239 appurtenances. 119 The exercise of the power in this respect goes further and includes the right of inspection of buildings used for certain purposes or by certain classes of people. The right to ex- ercise the power also carries with it the right to enforce orders or regulations of the state or municipal authorities looking to the demolition or the purification of unwholesome, unsafe or in- fected premises, 120 and the enforcement of ordinances having for their purpose the exercise of rights enumerated in this and other sections. It has been held that in the exercise of the power pos- 50 N. Y. Supp. 98, permit not neces- sary for minor repairs; Brennan v. Lachat, 14 Daly (N. Y.) 197; Willy v. Mulledy, 78 N. Y. 310; Douglass v. Com., 2 Rawle (Pa.) 262. See article by W. S. Gordon in 43 Alb. Law J. 349. us City Council of Montgomery v. Louisville & N. R. Co., 84 Ala. 127; Tuttle v. State, 4 Conn. 68; Greene v. Damrell, 175 Mass. 394; Fire Dept. of New York v. Wendell, 13 Daly (N. Y.) 430; City of Philadel- phia v. Coulston, 13 Phila. (Pa.) 182; Appeal of Brice, 89 Pa. 85; Carroll v. City of Lynchburg, 84 Va. 803. us State v. Clarke, 69 Conn. 371, awning; Attorney General v. Wil- liams, 174 Mass. 476, and same case again in 178 Mass. 330, 59 N. E. 812; City of New York v. Wood, 15 Daly, 341, 6 N. Y. Supp. 657; Bow- ers v. Coulston, 11 Phila. (Pa.) 182. 120 Dupree v. City of Brunswick, 82 Ga. 727; O'Rourke v. City of New Orleans, 106 La. 313; City of St. Paul v. Clark, 84 Minn. 138, 86 N. W. 893; Egan v. Health Dept. of City of New York, 9 App. Div. 431, 41 N. Y. Supp. 352; Health Dept. of City of New York v. Dassori, 21 App. Div. 348, 47 N. Y: Supp. 641. The court here held the fact that buildings were unfit for habitation did not necessarily involve the con- clusion that they could not be made so. "If they ceased to be in such a condition as to breed pestilence and spread disease and were rendered innoxious the owner of them had a right to have them remain upon the premises even though he might not be permitted to use them as a tene- ment house. There are many other uses to which he might lawfully put them, and the undoubted power of the public to refuse him permission to rent them to be used for human habitation did not necessarily in- volve the right to destroy them if they were not fit for that purpose." Golden v. Health Dept. of City of New York, 21 App. Div. 420, 47 N. Y. Supp. 623, where the owner's rem- edy is discussed. Smith v. Irish, 37 App. Div. 220, 55 N. Y. Supp. 837. See, also, People v. Board of Health of City of Yonkers, 140 N. Y. 1; Health Dept. of City of New York v. Trinity Church, 145 N. Y. 32; Board of Health of City of Yon- kers v. Copcutt, 140 N. Y. 12, 35 N. E. 443. But see Earp v. Lee, 71 111. 193; Bushnell v. Robeson, 62 Iowa, 540; Brightman v. Inhabitants of Bristol, 65 Me. 426; Brown v. Perkins, 78 Mass. (12 Gray) 89; Welch v. Stowell, 2 Doug. (Mich.) 332; Clark v. City of Syracuse, 13 Barb. (N. Y.) 32, and Miller v. Burch, 32 Tex. 208. 240 POWERS. 126 sensed, the state or the municipal authorities can pass rules, regu- lations, ordinances or laws capable of enforcement through the imposition of penalties for their violation, 121 consisting either of a fine or imprisonment, or both. 122 The limits of this work will not warrant the consideration in detail of such ordinances or laws and the extent to which penal- ties can be imposed. An examination of the cases cited in the notes may partially determine this, and the subject has been very fully treated in a recent work. 123 126. Regulation and abatement of nuisances. The state in the valid exercise of the police power may adopt, subject to constitutional and other restrictions and limitations suggested in the preceding sections, such measures as within the discretion of the proper officials, acting in good faith, may be necessary to abate nuisances detrimental in their character to the public health or peace or the safety of either life or prop- erty. Regulations concerning the height of fences, bill-boards, 124 the storing of chemicals, inflammable materials, oils, explo- sives, 125 the carrying of concealed weapons 126 or the discharge 121 State v. Bright, 38 La. Ann. 4; the structures in question * * * State v. Zurich, 49 La. Ann. 447. but the fact that this doubt exists is 122 City of New Orleans v. Danne- sufficient reason for the court to de- man, 51 La. Ann. 1093; following cline to adjudge the ordinance in- State v. Zurich, 49 La. Ann. 447. valid." Western Granite & Marble "3 Tiedeman, State & Fed. Con- Co. v. Knickerbocker, 103 Cal. Ill, trol of Persons & Prop. See, also, 37 Pac. 192; Crawford v. City of McQuilliu, Mun. Ord. 470 & 471, Topeka, 51 Kan. 756, 33 Pac. 476; and Parker & W. Pub. Health, cc. City of Rochester v. West, 164 N. Y. 19-21. 510; American Baptist Pub. Soc. v. 124 Brown v. Spilman, 155 U. S. Wistar, 11 Phila. (Pa.) 212. 665; In re Wilshire, 103 Fed. 620, 125 Harley v. Heyl, 2 Cal. 477; and cases cited in opinion. The Wright v. Chicago & N. W. R. Co., 7 court states that the ordinance regu- 111. App. 438; Clark v. City of South lating bill boards perhaps did border Bend, 85 Ind. 276; City of Richmond on the unreasonable, but emphasizes v. Dudley, 129 Ind. 112; Foote v. the rule that courts will not inter- Fire Dept. of New York, 5 Hill (N. fere unless the ordinance is positive- Y.) 99; City Council of Charleston ly and clearly unreasonable: "I v. Elford, 1 McMul. (S. C.) 234. entertain a good deal of doubt in 120 EX parte Cheney, 90 Cal. 617; respect to the reasonableness of the City Council of Abbeville v. Leopard, maximum limitation placed upon 61 S. C. 99. 126 POLICE POWER. 241 of fire-arms, 12T getting on or off cars in motion by persons other than employes, 128 requiring flagmen or safety gates at railroad crossings 128 and regulating the speed of trains, 130 are familiar 127 city of Cottonwood Falls v. Smith, 36 Kan. 401. 128 Bearden v. City of Madison, 73 Ga. 184; Wice v. Chicago & N. W. R. Co., 193 111. 351. Such an ordinance held invalid as unreasonable and void. "It is not meant that the right of passengers to get on or off a moving train between stations can- not be regulated or denied by law or by rules and regulations of the common carrier, but only that it cannot be done by an ordinance of the character and in the terms of the one involved in this case." Mills v. Missouri, K. & T. R. Co., 94 Tex. 242, 59 S. W. 874. In hold- ing the ordinance unreasonable the court said: "Not only would it be an attempt to regulate the exercise of the right of the passenger to take passage and of the carrier to re- ceive him, but a practical denial of it, assuming that the circum- stances existed to give the passenger the right to get upon the train while moving." 129 Atlantic, S. R. & G. R. Co. v. State, 42 Fla. 358, 29 So. 319; West- ern & A. R. Co. v. Young, 81 Ga. 397; Pennsylvania Co. v. Stege- meier, 118 Ind. 305; Textor v. Balti- more & O. R. Co., 59 Md. 63; People v. River Raisin & L. E. R. Co., 12 Mich. 389; City of Red Wing v. Chicago, M. & St. P. R. Co., 72 Minn. 240; Dickson v. Missouri Pac. R. Co., 104 Mo. 491; Delaware, L. & W. R. Co. v. East Orange Tp., 41 N. J. Law, 127; Inhabitants of Palmyra Tp. v. Pennsylvania R. Co., 62 N. J. Eq. 601, 50 Atl. 369; Jersey City v. Central R. Co., 40 N. J. Eq. 420. In Village of Ravenna v. Pennsyl- vania Co., 45 Ohio St. 118, it is held that the power of a municipal cor- poration to compel the keeping of a watchman at railroad crossings does not exist independent of express statute. iso Richmond, F. & P. R. Co. v. City of Richmond, 96 U. S. 521; Western & A. R. Co. v. Young, 81 Ga. 397; Chicago, B. & Q. R. Co. v. Haggerty, 67 111. 113; City of 'Lake View v. Tate, 130 111. 247; Whitson v. City of Franklin, 34 Ind. 392; Cleveland, C., C. & I. R. Co. v. Har- rington, 131 Ind. 426; Meyers v. Chicago, R. I. & P. R. Co., 57 Iowa, 555; State v. Miller, 41 La. Ann. 53. The power to limit speed of railroad trains by ordinance cannot be im- plied. People v. Little, 86 Mich. 126. Knobloch v. Chicago, M. & St. P. R. Co., 31 Minn. 402. "To justify the courts in declaring a city or- dinance, limiting the rate of speed of railroad trains and engines with- in the city, void, as in restraint of trade, its unreasonableness or want of necessity as a police regulation must be clear, manifest, undoubted, so as to be an abuse of discretion on the part of the council." Robert- son v. Wabash, St. L. & P. R. Co., 84 Mo. 119; Grube v. Missouri Pac. R. Co., 98 Mo. 330, 11 S. W. 736; Bluedorn v. Missouri Pac. R. Co., 108 Mo. 439; Gratiot v. Missouri Pac. R. Co., 116 Mo. 450; Prewitt v. Mis- souri, K. & T. R. Co., 134 Mo. 615; Jackson v. Kansas City, F. S. & M. R. Co., 157 Mo. 621; Donnaher v. State, 16 Miss. (8 Smedes & M.) 649; Buffalo & N. F. R. Co. v. City of Abb. Corp. 16. 242 POWERS. 126 illustrations of a valid exercise of the police power, each having for their purpose the prevention of a nuisance or an act detri- mental to the public health, safety or welfare. The power also exists to abate as a nuisance projections on buildings, 131 to re- quire bicycles used after dark to be provided with lights, or oth- erwise regulate them, 132 to forbid by ordinance their use upon sidewalks, 133 to prohibit the blasting of rock or keeping of ex- plosives without written consent or under other express regula- tions, 134 and to regulate the speed of vehicles in streets and high- Buffalo, 5 Hill (N. Y.) 209; Boggero Ind. 443; Salisbury v. Herchenroder, v. Southern R. Co., 64 S. C. 104; 106 Mass. 458, 8 Am. Rep. 354; Jones aee, also, 7 Am. & Eng. R. Gas. 406, v. Housatonic R. Co., 107 Mass. 261; and cases cited. Reimer's Appeal, 100 Pa. 182. The right to pass such ordinances 132 Mercer v. Corbin, 117 Ind. 450; is based solely upon the proper ex- City of Des Moines v. Keller, 116 ercise of the police power and if the Iowa, 648, 88 N. W. 827; Richardson conditions are such in a particular v. Inhabitants of Danvers, 176 Mass, case as will make an ordinance un- 413. A bicycle is more properly a reasonable, having in view the pro- machine than a carriage. State v. tection of life and limb, it will be Missouri Pac. R. Co., 71 Mo. App. 385. held invalid. See as discussing this "A bicycle belongs to the genus principle the following cases: Mey- vehicle or carriage." Massinger v. ers v. Chicago, R. I. & P, R. Co., City of Millville, 63 N. J. Law, 123, 57 Iowa, 555; Burg v. Chicago, 43 Atl. 443; Fuller v. Redding, 13 R. I. & P. R. Co., 90 Iowa, 106; App. Div. 61, 43 N. Y. Supp. 96. White v. St. Louis & S. F. R. Co., 44 See, also, Wheeler v. City of Boone, Mo. App. 540; Zumault v. Kansas 108 Iowa, 235, 44 L. R. A. 821. City & I. Air Line, 71 Mo. App. iss Mercer v. Corbin, 117 Ind. 450; 670. Holland v. Bartch, 120 Ind. 46; Town' The question has been raised that of Whiting v. Doob, 152 Ind. 157; granting the validity of such ordi- Swift v. City of Topeka, 43 Kan. nances when applied to the public 671; Myers v. Hinds, 110 Mich. 300; streets and places of public corpora- Thompson v. Dodge, 58 Minn. 555; tions, still they will be invalid if Com. v. Forrest, 170 Pa. 40; State applied to the private property of v. Collins, 16 R. I. 371. the railway company. See Merz 134 Hazard Powder Co. v. Volger, T. Missouri Pac. R. Co., 88 Mo. 672, 58 Fed. 152; Kinney v. Koopman, 116 Grube v. Missouri Pac. R. Co., 98 Ala. 310; Williams v. City Council Mo. 330, and Pennsylvania Co. v. of Augusta, 4 Ga. 509; Laflin & R. James, 81% Pa. 194, holding that Powder Co. v. Tearney, 131 111. 322; such ordinances will apply to unin- City of Richmond v. Dudley, 129 closed private property or switch Ind. 112; James' Adm'r v. Trustees yards. of Harrodsburg, 85 Ky. 191; Com. isi Grove v. City of Ft. Wayne, 45 v. Parks, 155 Mass. 531. 30 N. R Ind. 429; Clift v. State, 6 Ind. App. 174; Cameron v. Kenyon-Connell 19, 33 N. E. 211: Bybee v. State, 94 126 POLICE POWER. 243 ways. 138 Bnt in this connection, bicycles, tricycles and automo- biles are ordinarily considered vehicles and entitled to the use of that part of the street or highway set aside for them. 136 It seems to be the rule in connection with the enforcement of such regulations that the municipal authorities have no power to offer rewards for the detection of those violating them, 137 though cases will be found to the contrary. 138 The power of the public authorities to organize and maintain fire departments has for its basis the exercise of the police power in the protection of property. 139 Many rules and regulations, dif- Commercial Co., 22 Mont. 312; Mc- Andrews v. Collerd, 42 N. J. Law, 189; Foote v. Fire Dept. of New York, 5 Hill (N. Y.) 99; Hill v. Board of Aldermen of Charlotte, 72 N. C. 55; Wier's Appeal, 74 Pa. 230; Davenport v. Richmond City, 81 Va. 636; Wilson v. Phoenix Power Mfg. Co., 40 W. Va. 413. See, also, 5 Am. St. Rep. 538 135 Nealis v. Hayward, 48 Ind. 19. In Kansas City v. McDonald, 60 Kan. 481, it is held that such an ordi- nance does not apply to fire depart- ments when driving to a fire. Com. v. Worcester, 20 Mass. (3 Pick.) 462; Com. v. Roy, 140 Mass. 432; People v. Little, 86 Mich. 125, 48 N. W. 693, holding such an ordinance applies to an ambulance equally with other vehicles; City Council v. Dunn, 1 McCord (S. C.) 333. ise City of Emporia v. Wagoner, 6 Kan. App. 659; Swift v. City of Topeka, 43 Kan. 671; Taylor v. Union Traction Co., 184 Pa. 465. But see State v. Yopp, 97 N. C. 477, where the use of particular high- ways is held to be a matter of dis- cretion. 137 Crofut v. City of Danbury, 65 Conn. 294; Murphy v. City of Jack- sonville, 18 Fla. 318; Hawk v. Marion County, 48 Iowa, 472; Hang- er v. City of Des Moines, 52 Iowa, 193; Lee v. Trustees of Flemings- burg, 37 Ky. (7 Dana) 28; Patton v. Stephens, 77 Ky. (14 Bush.) 324; Gale v. Inhabitants of South Ber- wick, 51 Me. 174; Loveland v. City of Detroit, 41 Mich. 367. iss Crawshaw v. City of Roxbury, 73 Mass. (7 Gray) 374; Borough of York v. Forscht, 23 Pa. 391. See, also, Shuey v. United States, 92 U. S. 73. 139 People v. Newman, 96 Cal. 605 ; State v. Denny, 118 Ind. 382; State v. Fox, 158 Ind. 126; City of Lexing- ton v. Thompson, 113 Ky. 540, 68 S. W. 477; Redell v. Moores, 63 Neb. 219. In State v. Moores, 55 Neb. 480, 76 N. W. 175, the right to main- tain fire departments was held as vesting in the people of municipali- ties to be exercised by them with- out legislative interference. The court said: "The right of local self government in cities and towns * * * existed in this state at the time the present constitution was framed, and was not surrendered upon the adoption of that instru- ment but is vested in the people of the respective municipalities, and the legislature is powerless to take it away." Green v. City of Cape May, 41 N. J. Law, 45. The authority conferred by a city charter to pass ordinances 244 POWERS. 127 fering in their character in different sections, have for their pur- pose the establishment of fire limits and prohibit within such limits the construction of buildings except of certain materials. 140 127. The protection of public morals. The good morals of the community should be an especial care of the public authorities, and all regulations or laws passed by the proper authorities, looking to this end come within a valid ex- ercise of the police power. 141 The usual limitations as to the exer- cise of the power apply. It might be said in connection witii rules looking to the preservation of public morals that it is espe- for the suppression of fires includes the power to purchase engines and apparatus for use by a fire depart- ment. Leonard v. Long Island City, 65 Hun (N. Y.) 621. 1*0 City Council of Montgomery v. Louisville & N. R. Co., 84 Ala. 127, 4 So. 626; Canepa v. City of Birm- ingham, 92 Ala. 358, 9 So. 180; Mc- Kibbin v. Town of Ft. Smith, 35 Ark. 352; McCloskey v. Kreling, 76 Cal. 511, 18 Pac. 433; Hine v. City of New Haven, 40 Conn. 478; Ford v. Thralkill, 84 Ga. 169; King v. Davenport, 98 111. 305; Village of Louisville v. Webster, 108 111. 414; City of Marion v. Robertson, 84 111. App. 113; Kaufman v. Stein, 138 Ind. 49, 37 N. B. 333; Eichenlaub v. City of St. Joseph, 113 Mo. 395; Lemmon v. Town of Guthrie Center, 113 Iowa, 36, 84 N. W. 986; State v. O'Neil, 49 La. Ann. 1171; Brady v. Northwestern Ins. Co., 11 Mich. 425; Alexander v. Town Council of Greenville, 54 Miss. 659; State v. City of Kearney, 25 Neb. 262; Fire Dept. of New York v. Gilmour, 149 N. Y. 453, 52 Am. St. Rep. 748; Brunner v. Downs, 63 Hun, 626, 17 N. Y. Supp. 633; Gunning System v. City of Buffalo, 62 App. Div. 497, 71 N. Y. Supp. 155; Griffin v. City of Gloversville, 67 App. Div. 403, 73 N. Y. Supp. 684, and cases cited; State v. Johnson, 114 N. C. 846, 19 S. E. 599; Hubbard v. Town of Med- ford, 20 Or. 315, 25 Pac. 640; Kneed- ler v. Borough of Norristown, 100 Pa. 368; Respublica v. Duquet, 2 Yeates (Pa.) 493; Douglass v. Com., 2 Rawle (Pa.) 262; Pye v. Peterson, 45 Tex. 312. A municipal corpora- tion does not have the power to establish fire limits without an ex- press grant in charter. City of Eu- reka v. Wilson, 15 Utah, 67, 48 Pac. 150; Carroll v. City of Lynchburg, 84 Va. 803; City of Olympia v. Mann, 1 Wash. St. 389; Baxter v. City of Seattle, 3 Wash. St. 352; City of Charleston v. Reed, 27 W. Va. 681. See, also, authorities cited, Parker & W. Pub. Health, cc. 19 & 20. 1*1 Ex parte Newman, 9 Cal. 510; City of Mt. Sterling v. Holly, 22 Ky. L. R. 358, 57 S. W. 491; State v. Hart, 34 Me. 36; State v. Cainan, 94 N. C. 880; State v. Earnhardt, 107 N. C. 789; Smith v. Elliott, 9 Pa. 345; In re Snell, 58 Vt. 207, and 48 Am. Rep. 274-278. In Maine and Rhode Island there are statutory provisions declaring those things which are immoral to be nuisances per se. 127 POLICE POWER. 245 cially difficult in all cases to determine or to distinguish between a proper and an improper exercise of the power. Whether a certain act or series of acts is detrimental to the public morals may be a matter of opinion, and the mere fact that the law in a particular instance characterizes them as such and therefore invalid does not necessarily give to them that character. It is under this particular branch of the exercise of the police power that what may be termed sumptuary laws have been repeatedly passed by public corporations. The baneful effects of acts pro- hibited by these laws are not always clearly perceived. An in- dividual is entitled to certain personal opinions that as a matter of right he is to determine for himself. Clearly therefore police regulations directed to the prevention or suppression of certain acts or opinions must in order to be valid have clearly estab- lished the facts showing or tending to show their unlawful or detrimental character. 142 It is true that the exercise of the police power when once vested in a public corporation or body is a dis- cretionary power within certain limits, to be exercised or not and in the manner determined by the discretion of those to whom it is entrusted ; but it is none the less true that this discretionary power is subject to constitutional limitations. Personal rights guaranteed by the constitution cannot arbitrarily be taken away from an individual through the mere discretionary determina- tion of certain officials that the exereise of those rights is detri- mental to public morals. 148 i*2Buell v. State, 45 Ark. 336; iton v. Barber, 54 Iowa, 360; State v. Paralee v. Town of Camden, 49 Ark. Wister, 62 Mo. 592; Ely v. Niagara 165; McAlister v. Clark, 33 Conn. County Sup'rs, 36 N. Y. 297; People 91; City of Chariton v. Barber, 54 v. Erwin, 4 Denio (N. Y.) 129; City Iowa, 360; City of Grand Rapids v. of Chariton v. Barber, 54 Iowa, 360, Bateman, 93 Mich. 135; State v. 37 Am. Rep. 209, also 5 Am. St. Rep. Webber, 107 N. C. 962 ; Milliken v. 494. In Nuendorff v. Duryea, 52 How. City Council of Weatherford, 54 Tex. Pr. (N. Y.) 267, it was held compe- 388; State v. Webber, 107 N. C. 962, tent for the legislature to determine 22 Am. St. Rep. 920 and 51 Am. and declare what regulations and di- Rep. 467, 475 ; Tiedeman, State & versions were harmless and innocent Fed. Control of Persons & Prop. c. 7. and what amusements operate in- 143 Poyer v. Village of Des Plaines, juriously on others or exert a bane- 18 111. App. 225. An ordinance de- ful influence upon the community, claring "all public picnics and open- thus coming within a valid exercise air dances within its limits" to be of the police power. It was also nuisances, held void. City of Char- held in this case that if the legis- 246 POWERS. 128 128. Regulations controlling or suppressing gambling. Regulations or ordinances of public authorities having for their purpose the suppression or control of gambling come within a legitimate exercise of the police power, as having for their ulti- mate end the preservation of the good morals and peace of the community and the suppression of vice and crime, 144 gambling being usually considered, independent of statutory provisions, such an immoral, baneful and vicious act and propensity as to justify its regulation or even suppression. This control may go to the extent either of totally suppressing and prohibiting the act 146 or it may seek to accomplish its purpose by regulating and lature came to the conclusion that certain pastimes or amusements were hurtful or injurious to others or disturbed the peace of the public, the courts would not ordinarily, even assuming they had the power, pass in review the judgment and discretion exercised by the law-mak- ing power. i** McLaughlin v. Stephens, 2 Cranch, C. C. 148; Fed. Gas. No. 8,874; United States v. Holly, 3 Cranch, C. C. 656, Fed. Cas. No. 15,381; Carrier v. Brannan, 3 Cal. 328; Ex parte Chin Yan, 60 Cal. 78; Ex parte Tuttle, 91 Cal. 589; State v. Carpenter, 60 Conn. 97; State v. Flint, 63 Conn. 248; Bagwell v. Town of Lawrenceville, 94 Ga. 654, "Blind Tiger;" Odell v. City of At- lanta, 97 Ga. 670, betting on horse races; Bobel v. People, 173 111. 19. Frost v. People, 193 111. 635. The destruction of gambling apparatus held constitutional and not depriving persons of their property without due process of law. But see Lowry v. Rainwater, 70 Mo. 152, 21 Alb. Law J. 72; Smith v. City of Madi- son, 7 Ind. 86; Board of Police Com'rs v. Wagner, 93 Md. 182, 48 Atl. 455; Fisher v. McGirr, 67 Mass. (1 Gray) 1; Hibbard v. People, 4 Mich. 126; Jackson v. People, 9 Mich. Ill; State v. Woodman, 26 Mont. 348, 67 Pac. 1118; Jefferson City v. Courtmire, 9 Mo. 693. Lowry v. Rainwater, 70 Mo. 152, 21 Alb. Law J. 72. A statute in Missouri authorized the police of St. Louis to seize gambling parapher- nalia and destroy it at once. This was declared unconstitutional as de- priving one of property without due process of law. State v. Met- calf, 65 Mo. App. 681; Town of Can- ton v. Dawson, 71 Mo. App. 2Si; State v. Hall, 32 N. J. Law, 158; Tanner v. Trustees of Albion, 5 Hill (N. Y.) 121; Updike v. Campbell, 4 E. D. Smith (N. Y.) 570; People v. Sargeant, 8 Cow. (N. Y.) 139; Ah Hoy v. Spencer, 23 Or. 89. Daly v. State, 81 Tenn. (13 Lea) 228. Tennessee Acts 1883, c. 138, regulating the selling of pools, etc., held unconstitutional. Lincoln v. Smith, 27 Vt. 354; State v. Newman, 96 Wis. 258, 71 N. W. 438. See, also. Lowry v. Rainwater, 70 Mo. 152; 35 Am. St. Rep. 420; 33 Am. Dec. 134 et seq. iportis v. State, 27 Ark. 362; Odell v. City of Atlanta, 97 Ga. 670; City of Mt. Pleasant v. Breeze, 11 Iowa, 399; City of Owensboro v. 129 POLICE POWER. 247 controlling the manner, 146 time 1 * 7 and place 148 in which it shall be carried on. Ordinances adopted by municipal corporations which in effect license gambling are null and void if in contra- vention of statutory provisions. 149 129. The police power; further illustrations of its exercise. Some further concrete illustrations of a valid exercise of the police power may perhaps best define and explain its scope. The suppression of disorderly houses; 150 making it unlawful for any Sparks, 99 Ky. 351, 36 S. W. 4. The right of municipal corporations to pass ordinances prohibiting and sup- pressing gambling houses not con- sidered authority to prohibit all gambling. State v. Shaw, 39 Minn. 153; State v. Grimes, 49 Minn. 443, 52 N. W. 42; Tanner v. Trustees of Albion, 5 Hill (N. Y.) 121; followed in Updike v. Campbell, 4 E. D. Smith (N. Y.) 570. 1*6 Mclnerney v. City of Denver, 17 Colo. 302, 29 Pac. 516; Rice v. State, 3 Kan. 141; City of De Soto v. Brown, 44 Mo. App. 148; City of Plattsburg v. Trimble, 46 Mo. App. 459, regulating the use of billiard tables by minors. 1*7 Shafer v. Mumma, 17 Md. 331; City of St. Louis v. Bentz, 11 Mo. 61; State v. Cowan, 29 Mo. 330; City of Tarkio v. Cook, 120 Mo. 1, 25 *S. W. 202; Byers v. Com., 42 Pa. 89. 1*8 Ex parte Tuttle, 91 Gal. 589; City of Chicago v. Brownell, 41 111. App. 70; State v. O'Leary, 155 Ind. 526, 58 N. E. 703, and cases cited in the opinion; City of Greenville v. Kemmis, 58 S. C. 427. 1*9 State v. Lindsay, 34 Ark. 372; In re Ah You, 88 Cal. 99; Ex parte Solomon, 91 Cal. 440; Ex parte Tut- tle, 91 Cal. 589; City of Chicago v. Brownell, 41 111. App. 70. 150 Buell v. State, 45 Ark. 336. Under the power given by the Code, "to repress and restrain disorderly houses," a city has authority by or- dinance to make it an offense to visit such houses. Paralee v. Camden, 49 Ark. 165, 4 S. W. 654. The mere presence with- in the town limits of one who had previously lived there as a prosti- tute cannot be made a crime. City of Chariton v. Barber, 54 Iowa, 360; State v. Botkin, 71 Iowa, 87; Munic- ipality No. 1 v. Wilson, 5 La. Ann. 747; City of Shreveport v. Roos, 35 La. Ann. 1010; People v. Hanrahan, 75 Mich. 611; State v. Clarke, 54 Mo. 17: "It is a naked assumption to say that any matter allowed by the legislature is against public policy. The best indication of public policy is to be found in the enactments of our legislature. To say that such a law is of immoral tendency is dis- respectful to the legislature, who, no doubt, designed to promote mor- ality and it is altogether unwarrant- ed to suppose that the object of the law or the ordinance is for any pur- pose but to promote the morals and health of the citizens. Whether the ordinance in question is calculated to promote the object is a question with which the courts have no con- cern." Perry v. State, 37 Neb. 623; People v. Miller, 38 Hun (N. Y.) 82; State v. Webber, 107 N. C. 962; State v. Williams, 11 S. C. 288; Childress 248 POWERS. 129 person to have lottery tickets in his possession, or prohibiting their sale; 151 the passage and enforcement of laws requiring the proper observance of Sundays; 152 or regulating the conduct of those appearing on the streets. 153 An ordinance making it an of- fense to associate 'or converse with thieves, burglars, gamblers, prostitutes, pickpockets, etc., has been held unconstitutional being an invasion of the rights of personal liberty, 154 nor can the mere v. City of Nashville, 35 Term. (3 Sneed) 347; Ex parte Wilson, 14 Tex. App. 592. Contra, Ogden City v. McLaughlin, 5 Utah, 387; Ogden v. City of Madison, 111 Wis. 413. "I Nicholls v. Georgetown Corp., 4 Cranch, C. C. 576, Fed. Cas. No. 10,228; Ex parte Solomon, 91 Gal. 440: "Possession of lottery tickets" ordinance unreasonable and void and in conflict with general laws of the state. Ex parte McKenna, 126 Cal. 429; Ex parte McClain, 134 Cal. 110; Bueno v. State, 40 Fla. 160; Daven- port v. City of Ottawa, 54 Kan. 711; State v. Dobard, 45 La. Ann. 1412; City of New Orleans v. Collins, 52 La. Ann. 973; People v. Dycker, 72 ''App. Div. 308, 76 N. Y. Supp. 111. Ex parte Kameta, 36 Or. 251. A city ordinance making it unlawful for any person to have in his pos- session any lottery ticket, unless it be shown that such possession is in- nocent, or for a lawful purpose, is void, since it puts on defendant the burden of proving his innocence. 152 Theisen v. McDavid, 34 Fla. 440; Rothschild v. City of Darien, 69 Ga. 503; McPherson v. Village of Chebanse, 114 111. 46; affirming 15 111. App. 311; City of St. Louis v. Cafferata, 24 Mo. 94; City of Nash- ville v. Linck, 80 Tenn. (12 Lea) 499; McDowell v. Murfreesboro, 103 Tenn. 726; Ex parte Abram, 34 Tex. Cr. R. 10. But see City of Canton v. Nist. 9 Ohio St. 439. las Braddy v. City of Milledgeville, 74 Ga. 516; Hechinger v. City of Maysville, 22 Ky. L. R. 486, 57 S. W. 619; City of Grand Rapids v. Bateman, 93 Mich. 135; Village of Vicksburg v. Briggs, 102 Mich. 551; In re Bushey, 105 Mich. 64; State v. Bruckhauser, 26 Minn. 301. State v. Hammond, 40 Minn. 43. Ordinance invalid because in excess of charter powers. Roderick v. Whitson, 51 Hun (N. Y.) 620. Salvation army. An or- dinance prohibiting any person to go about or remain in any of the streets or on the sidewalks of village beating any drum or tambourine or making any noise with any instru- ment for any purpose whatever, held valid, but see State v. Dering, 84 Wis. 585. State v. Cainan, 94 N. C. 880; State v. Hunter, 106 N. C. 796; Walsh v. City of Union, 13 Or. 589. A provision in a city charter em- powering the city to punish any per- son or persons who should make any noise or disturbance in any street of the city does not authorize the city to take jurisdiction of and punish the crime of assault with a dangerous weapon. is* City of St. Louis v. Fitz, 53 Mo. 582; City of St. Louis v. Roche. 128 Mo. 541; Ex parte Smith, 135 Mo. 223; Cady v. Barnesville, 4 Ohio Dec. 396. 129 POLICE POWER. 249 presence of such persons within corporate limits be punished by statute or ordinance. 155 The closing of business places on Sun- day, 188 the punishment of individuals following certain occupa- tions, 167 have each been held a valid exercise of the police power, IBB Buell v. State, 45 Ark. 336; Paralee v. Camden, 49 Ark. 165. iBecity of Denver v. Bach, 26 Colo. 530. Sunday ordinance held void. McPherson v. Village of Che- banse, 114 111. 46; Kansas City v. Grubel, 57 Kan. 436. City of Shreveport v. Levy, 26 La. Ann. 671. "Before the constitution, Jews and Gentiles are equal; by the law they must be treated alike, hence a municipal corporation can- not by an ordinance give to one sect a privilege which it denies to an- other, as by providing that persons who close up their places of busi- ness on Saturday may open their places on Sunday." People v. Bellet, 99 Mich. 151. Act No. 148, Laws Mich. 1893, un- lawful for barbers to follow their trade on Sunday. State v. Petit, 74 Minn. 376; State v. Zeno, 79 Minn. 80. Gen. St. Minn. 1894, 6513 barbers prohibited from keeping their shops open on Sunday. City of St. Louis v. Cafferata, 24 Mo. 94; People v. Havnor, 149 N. Y. 195; Ex parte Northrup, 41 Or. 489, 69 Pac. 445. Sess. Laws Or. 1901, p. 17, prohibiting a barber from follow- ing his occupation on Sunday, held not class legislation. City Council of Charleston v. Benjamin, 2 Strob. (S. C.) 508; Craddock v. State, 18 Tex. App. 567; Flood v. State, 19 Tex. App. 584; Ex parte Sundstrom, 25 Tex. App. 133; Gabel v. City of Houston, 29 Tex. 336; State v. Nichols, 28 Wash. 628, 69 Pac. 372. Such ordinances must not be incon- sistent with the constitution and laws of the state. City of Canton v. Nist, 9 Ohio St. 439; Baxter's Peti- tion, 12 R. I. 13; Flood v. State, 19 Tex. App. 584; Bohmy v. State, 21 Tex. App. 597. isT Rogers v. People, 9 Colo. 450; McAlister v. Clark, 33 Conn. 91; Braddy v. City of Milledgeville, 74 Ga. 516; Robb v. City of Indian- apolis, 38 Ind. 49; City of Chariton v. Barber, 54 Iowa, 360; State v. Botkin, 71 Iowa, 87. State v. Babcock, 112 Iowa, 250. The court in this case held the ordi- nance invalid, there being a possi- bility that the penalty imposed for its violation might be larger than that authorized by statute. Dunn v. Com., 105 Ky. 834; City of New Orleans v. Costello, 14 La. Ann. 37; City of Shreveport v. Roos, 35 La. Ann. 1010; L'Hote v. City of New Orleans, 51 La. Ann. 93; People v. Hanrahan, 75 Mich. 611; State v. Oleson, 26 Minn. 507. Ordinance does not supersede the provisions of the general statutes on the same subject. City of St. Louis v. Mellville, 3 Mo. App. 597; State v. Clarke, 54 Mo. 17; Givens v. Van Studdiford, 86 Mo. 149. Ex parte Roberts, 166 Mo. 207. A law prohibiting a person from mak- ing or mending burglars' tools held not in contravention of the Bill of Rights, 30. Perry v. State, 37 Neb. 623; People v. Miller, 38 Hun (N. Y.) 82; State v. Webber, 107 N. C. 962. Ordinance in this case held in- valid: Wong v. City of Astoria, 13 Or. 538; City of San Antonio v. Schneider (Tex. Civ. App.) 37 S. W. 250 POWERS. having for their purpose the care and protection of the public morals. An ordinance making it unlawful for any woman to go in and out of a building where a saloon was kept for the sale of liquor, or to frequent, loaf, or stand around such building within fifty feet thereof, was held void in Kentucky as being an unreasonable interference with individual liberty. 158 In some cases it is held that municipal authorities have no power to pass ordinances protecting the public morals except when clearly granted by the legislature, 109 and it is self-evident that municipal corporations have no power to pass ordinances which shall regu- late or attempt to regulate the conduct of those outside munici- pal limits. 160 It is also true that the power to regulate or con- trol does not include the right to suppress. 161 130. The exercise of the police power in regulating the sale and consumption of intoxicating liquors. It is clearly within the legitimate province of the state, in the exercise of its police power, to prohibit or control those indi- vidual acts that constitute a vice either on account of their char- acter, the extent or the manner of their exercise. The use of in- toxicating liquors if carried to an excess becomes a vice, and .all authorities are agreed that as such, or considered independently, it leads to poverty, disease and crime. The state as a part of its governmental duties must protect and support the indigent and unfortunate, eradicate and control disease and punish crime. It 767, particular charter power con- C. C. 232, Fed. Gas. No. 17,163; strued; Ogden City v. McLaughlin, Lenox v. Georgetown, 1 Cranch, C. 5 Utah, 387. C. 608, Fed. Cas. No. 8,245; City of iss Gastineau v. Com., 22 Ky. L. South Pasadena v. Los Angeles R. 157, 56 S. W. 705. Terminal R. Co., 109 Cal. 315; Be- isflGoetler v. State, 45 Ark. 454. gein v. City of Anderson, 28 Ind. 79; Municipal corporations have power Robb v. City of Indianapolis, 38 Ind. under the statute to suppress gam- 49; State v. Franklin, 40 Kan. 410; bling devices but none to license City of New Orleans v. Anderson, 9 them or impose a license fee upon a La. Ann. 323; Jarvis v. Pinckney, 3 ten-pin alley. City of Owensboro v. Hill (S. C.) 123; Gass v. Greenville Sparks, 99 Ky. 351; State v. Home, Corp., 36 Tenn. (4 Sneed) 62. See, 115 N. C. 739. An ordinance forbid- also, cases cited in 120, note 63. ding the use of profane language in isi State v. Owen, 50 La. Ann. town was held invalid, the power to 1181; State v. Pamperin, 42 Minn, pass not granted by the legislature. 320. io Ward v. Washington, 4 Cranch. 130 POLICE POWER. 251 may do this either by dealing with the tangible results of certain causes, or it may, through the control and regulation of their cause, accomplish the same thing more effectually and with less expense. Clearly, therefore, the state may prohibit absolutely 182 162 Bartemeyer v. State of Iowa, 85 U. S. (18 Wall.) 129, 133. "The weight of authority is overwhelming that no such immunity has hereto- fore existed as would prevent state legislatures from regulating and even prohibiting the traffic in in- toxicating drinks, with a solitary exception. That exception is the case of a law operating so rigidly on property in existence at the time of its passage, absolutely prohibiting its sale, as to amount to depriving the owner of his property." Mugler v. State of Kansas, 123 U. S. 623. "A prohibition simply upon the use of property for purposes that are declared by valid legisla- tion to be injurious to the health, morals or safety of the community cannot in any just sense be deemed a taking or an appropriation of property for the public benefit. Such legislation does not disturb the owner in the control or use of his property for lawful purposes nor restrict his right to dispose of it but is only a declaration by the state that its use by anyone for certain forbidden purposes is prejudicial to the public interests." Tanner v. Village of Alliance, 29 Fed. 196; Sheppard v. Bowling, 127 Ala. 1. Individuals not deprived of their rights in the "pursuit of hap- piness" by the passage of a dispen- sary law. State v. Davis, 130 Ala. 148; Ex parte Smith, 38 Cal. 702. Ordinance prohibiting noisy amuse- ments and to prevent immorality valid. Ex parte Campbell, 74 Cal. 20; State v. Wheeler, 25 Conn. 290; Perdue v. Ellis, 18 Ga. 586; Turner v. City of Forsyth, 78 Ga. 683; Hill v. City of Dalton, 72 Ga. 314; Bag- well v. Town of Lawrenceville, 94 Ga. 654; Jones v. People, 14 111. 196; Neifing v. Town of Pontiac, 56 111. 172; Harbaugh v. City of Monmouth, 74 111. 367; Gunnarssohn v. City of Sterling, 92 111. 569; Town of Toledo v. Edens, 59 Iowa, 352; State v. Mugler, 29 Kan. 252; Koester v. State, 36 Kan. 27; City of Wilson v. Herink, 64 Kan. 607, 68 Pac. 72; Preston v. Drew, 33 Me. 559; State v. Gurney, 37 Me. 156; Warren v. City of Charleston, 68 Mass. (2 Gray) 98; State v. Johnson, 86 Minn. 121, 90 N. W. 161; State v. Searcy, 20 Mo. 489; State v. Noyes, 30 N. H. 279; Metropolitan Board of Excise v. Barrie, 34 N. Y. 657. Bertholf v. O'Reilly, 74 N. Y. 509. In the opinion by Judge Andrews the court say: "The right of the state to regulate the traffic in in- toxicating liquors, within its limits, has been exercised from the founda- tion of the government, and is not open to question. The state may prescribe the persons by whom and the conditions under which the traf- fic may be carried on. It may im- pose upon those who act under its license such liabilities and penalties as in its judgment are proper to secure society against the dangers of the traffic and individuals against injuries committed by intoxicated persons under the influence of or re- sulting from their intoxication." "The right to life, liberty and prop- erty is not absolute or uncontrolla- 252 POWERS. 130 or it may license or limit 163 the sale of intoxicating liquors; or it may prohibit their sale on certain occasions, 164 within certain ble. The qualification in the bill of rights implies that there may be a deprivation of those rights by due process of law, and governments could not be maintained, in the ab- sence of the power somewhere to regulate the relations of Individuals to the state and to each other. Life, liberty or property may be forfeited for crime. Private property may be taken for public use, on condition of compensation, or by taxation, or it may be transferred by judicial pro- cess, for the satisfaction of private contracts or as a compensation for private wrongs and injuries. The purpose of the act in question, as indicated by its title, is the suppres- sion of 'intemperance, pauperism and crime.' It cannot be denied that these are public purposes within the legitimate scope of legislation, nor can it be doubted by any observing and intelligent person that the use of intoxicating liquors is the fruitful source of many of the evils which afflict society. Pauperism, vice and crime are the usual concomitants of the unrestrained indulgence of the appetite for strong drink. Impov- erishment of families, the imposi- tion of public burdens, insecurity of life and property are consequent upon the prevalence of the great evil of intemperance. If the legis- lature was impotent to deal with the traffic in intoxicating liquors or powerless to restrain or regulate it In the interest of the community at large, because legislation on the subject might, to some extent, inter- fere with the use of property or the prosecution of private business, the legislature would be shorn of one of its most usual and important functions. But, as we have said, the right of the Legislature to regulate the traffic is shown by the uniform practice of the government." Burckholter v. Village of McCon- nellsville, 20 Ohio St. 308; State v. Paul, 5 R. I. 185; Ex parte Kennedy, 23 Tex. App. 77, 3 S. W. 114. See note 20 L. R. A. 645 defining and distinguishing different liquors or drinks. See, also, 7 L. R. A. 183, 295; 9 L. R. A. 780. lea Town of Marion v. Chandler, 6 Ala. 899; Ex parte Marshall, 64 Ala. 266; Ex parte Sikes, 102 Ala. 173; Yahn v. Merritt, 117 Ala. 485. But the statute in this case held un- constitutional because title con- tains two subjects. Ex parte Wol- ters, 65 Gal. 269; Ex parte McNally, 73 Cal. 632; Ex parte Christensen, 85 Cal. 208; Ex parte Mansfield, 106 Cal. 400; County of Los Angeles v. Eikenberry, 131 Cal. 461; Paton v. People, 1 Colo. 77; Town of Val- verde v. Shattuck, 19 Colo. 104; Perdue v. Ellis, 18 Ga. 586; Town of Douglasville v. Johns, 62 Ga. 423; Mathis v. State, 93 Ga. 38; City of Burlington v. Kellar, 18 Iowa, 59; City of Keokuk v. Dressell, 47 Iowa, 597; U. S. Distilling Co. v. City of Chicago, 112 111. 19. License fee not a tax. Dennehy v. City of Chicago, 120 111. 627. Amount of license fee cannot be questioned for unrea- sonableness. People v. Cregier, 138 111. 401; City of Lawrenceburg v. Wuest, 16 Ind. 337; Lutz v. City of Crawfordsville, 109 Ind. 466; City of Frankfort v. Aughe, 114 Ind. 77; Wagner v. Town of Garrett, 118 Ind. 114; Linkenhelt v. Town of Garrett, 118 Ind. 599; Moore v. City of In- dianapolis, 120 Ind. 483; Franklin v. Westfall, 27 Kan. 614; In re Jahn, 55 Kan. 694. Ginger ale. State v 130 POLICE POWER. 253 hours, 188 without certain places, 168 and the quantities in which they can be sold. 167 It may go further and prohibit the sale to Harper, 42 La. Ann. 312; State v. Riley, 49 La. Ann. 1617; Kitson v. City of Ann Arbor, 26 Mich. 325; Wolf v. City of Lansing, 53 Mich. 367; Sherlock v. Stuart, 96 Mich. 193; In re Wilson, 32 Minn. 145; State v. Priester, 43 Minn. 373; Kan- sas City v. Hallett, 59 Mo. App. 160; Kansas City v. Flanders, 71 Mo. 281; City of Kansas v. Zahner, 73 Mo. App. 396; State v. Mumford, 73 Mo. 647; Hershoff v. Treasurer of City of Beverly, 45 N. J. Law, 288; State v. Clark, 28 N. H. (8 Fost) 176; State v. Hardy, 7 Neb. 377; State v. Bennett, 19 Neb. 191; State v. Stevens, 114 N. C. 873; In re Schneider, 11 Or. 288; Durach's Ap- peal, 62 Pa. 491; City of Seattle v. Chin Let, 19 Wash. 38; State v. Bering, 84 Wis. 585; Rock County v. City of Edgerton, 90 Wis. 288. Cider being to some extent intoxi- cating, a license may be imposed upon its sale. Town of Pikeville v. Huffman, 112 Ky. 360, 65 S. W. 794. See, also, Monroe v. City of Law- rence, 44 Kan. 607, sustaining the validity of an ordinance regulating the sale of cider. See Tiedeman, State & Fed. Control of Persons & Prop. pp. 478-504, and 9 L. R. A. 780. i* Election Day: Newman v. State, 101 Ga. 534; Iowa City v. Mc- Innerny, 114 Iowa, 586; State v. Kidd, 74 Ind. 554; Qualter v. State, 120 Ind. 92; State v. Hirsch, 125 Ind. 207; Com. v. Murphy, 95 Ky. 38; State v. Ludwig, 21 Minn. 202; Schuck v. State. 50 Ohio St. 493; Kane v. Com., 89 Pa. 522; Wooster v. State, 65 Tenn. (6 Baxt.) 533; Haines v. State, 7 Tex. Apr 30; Janks v. State, 29 Tex. App. 23*. Sunday: In re McAllister, 51 Fed. 282; Moore v. Bahr, 82 Fed. 19; Dorman v. State, 34 Ala. 216; Mc- Cuen v. State, 19 Ark. 636; Ex parte Peacock, 25 Fla. 478; Karwisch v. City of Atlanta, 44 Ga. 204; Hood v. Von Glahn, 88 Ga. 405; Thomasson v. State, 15 Ind. 449; State v. Christ- man, 67 Ind. 328; Minden Corp. v. Silverstein, 36 La. Ann. 912; Kurtz v. People, 33 Mich. 279; State v. Ludwig, 21 Minn. 202; State v. Har- ris, 50 Minn. 128; State v. Francis, 95 Mo. 44; Sanders v. State, 34 Neb. 872; City of Piqua v. Zimmerlin, 35 Ohio St. 507; Palmer v. State, 2 Or. 66; Hudson v. Geary, 4 R. I. 485; McNeill v. State, 92 Tenn. 719; Ga- bel v. City of Houston, 29 Tex. 336; Thon v. Com., 31 Grat. (Va.) 887. Christmas: Reithmiller v. Peo- ple, 44 Mich. 282. Centennial Day: People v. Acker- man, 80 Mich. 588. Labor Day: Com. v. Francis, 152 Mass. 508. Fourth of July: People v. Whip- pie, 108 Mich. 587. Miscellaneous days: Ex parte Newman, 9 Cal. 502; Thomasson v. State, 15 Ind. 449; State v. Atkin- son, 139 Ind. 426; People v. Hobson, 48 Mich. 27; Merchants' Nat. Bank v. Jaffray, 36 Neb. 218; Richardson v. Goddard, 23 How. (U. S.) 41; City of Canton v. Nist, 9 Ohio St. 439; City of Portland v. Schmidt, 13 Or. 17; Killer v. English, 4 Strob. (S. C.) 486. See, also, 19 L. R. A. 317. 165 state v. Welch, 36 Conn. 215; State v. Brady, 41 Conn. 588; State v. Hellman, 56 Conn. 190; Baldwin v. City of Chicago, 68 111. 418; Hed- derich v. State, 101 Ird. 564; Decker v. Sargeant, 125 Ind. 404; Davis v. Fasig, 128 Ind. 271; City of Clinton v. Grusendorf, 80 Iowa, 117; State 254 POWERS. 130 certain classes of society needing especially the protection of the tate, namely, habitual drunkards and minors, 169 or it may select those to whom shall be granted the privilege of selling and regu- late the manner of sale. 189 T. Freeman, 38 N. H. 426; State v. Thomas, 118 N. C. 1221, but such an ordinance cannot forbid one who Bells liquor to occupy his own prem- ises between certain hours. State v. Inhabitants of Borough of Wash- ington, 44 N. J. Law, 605; Ward v. City of Greenville, 67 Tenn. (8 Baxt.) 228. Held unreasonable to close saloons between six P. M. and ix A. M. Smith v. City of Knox- yllle, 40 Tenn. (3 Head) 245; Max- well v. Corporation of Jonesboro, 58 Tenn. (11 Heisk.) 257; Village of Platteville v. Bell, 43 Wis. 488. lee state v. Davis, 130 Ala. 148; Town of Valverde v. Shattuck, 19 Colo. 104; Hart v. State, 88 Ga. 635; People -v. Cregier, 138 111. 401; Laugel v. City of Bushnell, 96 111. App. 618, selling hop ale within corporate limits of city declared nuisance. Shea v. City of Muncie, 148 Ind. 14; Rowland v. City of Greencastle, 157 Ind. 591. City of Topeka v. Raynor, 61 Kan. 10. An ordinance of the city of To- peka to the effect that "all places where persons are permitted to re- sort for the purpose of drinking in- toxicating liquors as a beverage are common nuisances," was held con- stitutiocal and not repugnant to Kansas Bill of Rights, 1, declaring that "all men are possessed of equal and inalienable natural rights, among which are life, liberty and the pursuit of happiness." In re Wilson, 32 Minn. 145; State v. Schweickardt, 109 Mo. 496. The application of the principle would certainly sustain laws pro- hibiting the sale of intoxicating liquors in the neighborhood of edu- cational, charitable, or curative in- stitutions. Dorman v. State, 34 Ala. 216; Trammell v. Bradley, 37 Ark. 374; Ex parte McClain, 61 Cal. 436; Bronson v. Village of Oberlin, 41 Ohio St. 476; Heck v. State, 44 Ohio St. 536. Prohibiting sale within prescribed distance from state fair grounds. IB? Harris v. Town of Livingston, 28 Ala. 577; Dennehy v. City of Chi- cago, 120 111. 627; Gunnarssohn v. City of Sterling, 92 111. 569; Tipton v. People, 156 111. 241; In re Jahn, 55 Kan. 694; State v. Brackett, 41 Minn. 33; State v. Priester, 43 Minn. 373; Brittain. v. Bethany, 31 Miss. 331; Fagan v. State, 47 N. J. Law, 175; State v. Pratt, 52 N. J. Law, 306; Kizer v. Randleman, 50 N. C. (5 Jones) 428; State v. Drake, 86 Tex. 329. But see Adams v. City of Al- bany, 29 Ga. 56. is Sprayberry v. City of Atlanta, 87 Ga. 120; State v. Shinn, 63 Kan. 638, habitual drunkard defined; State v. YewelT, 63 Md. 120; State v. Ferguson, 33 N. H. 424; State v. Austin, 114 N. C. 855. Ordinance prohibiting unmarried minor, except when acting as agent for parent or guardian, from entering a bar room, valid. Woods v. Town of Prineville, 19 Or. 108; Com. v. Zelt, 138 Pa. 615; Com. v. Silvermen, 138 Pa. 642; Peacock v. Limburger (Tex. Civ. App.) 67 S. W. 518. (1902) Students. See, also, notes 4 L. R. A. 495; 7 L. R. A. 295; 9 L. R. A. 814: and 12 L. R. A. 433. 130 POLICE POWER. 255 Such prohibitions or regulations under license statutes to be valid, however, must not regulate interstate commerce ; infringe upon or interfere with other rights granted exclusively to the Federal government. 170 The use of blinds, screens, shades, cur- tains or other devices may be prohibited. 171 Without the power of enforcing these rules and regulations they would be of little use or efficacy. The state directly or in- directly, this being true of all its laws or regulations, may im- pose a punishment, either fine or imprisonment, or both, 172 for 169 Foster v. Police Com'rs of San ting the assembling of females Francisco, 102 Cal. 483; In re Wer- there for the purpose of enticing ner, 129 Cal. 567; Towns v. City of customers. Tallahassee, 11 Fla. 130; Whitten Adams v. Cronin, 29 Colo. 488, 69 v. City of Covington, 43 Ga. 421; Pac. 590. Ordinance valid prohibit- City of Carthage v. Carlton, 99 111. ing physicians from giving pre- App. 338; City of Rochester v. Up- scriptions for the procurement of man, 19 Minn. 108 (Gil. 78). Such liquor to be used as a beverage, a regulation held to include drug- Town of Carthage v. Buckner, 4 111. gists. App. 317. See, also, notes on the City of Hoboken v. Goodman, sale of liquors by Clubs in 2 L. R. A. 68 N. J. Law, 217, 51 Atl. 1092. The 494, 6 L. R. A. 128, and 12 L. R. A. sale of intoxicating liquors at retail 412. held not a privilege of immunity of 17 Bowman v. Chicago & N. W. R. citizenship protected by the United Co., 125 U. S. 465; Leisy v. Hardin, States constitution. Harrington v. 135 U. S. 100; In re Rahrer, 140 U. Trustees of Rochester, 10 Wend. (N. S. 545; Rhodes v. State of Iowa, 170 Y.) 547; City Council of Charleston U. S. 412; In re Langford, 57 Fed. v. Feckman, 3 Rich. Law (S. C.) 570; In re Spickler, 43 Fed. 653; 385; Provo City v. Shurtliff, 4 Utah, Jervey v. The Carolina, 66 Fed. 1013; 15. Ex parte Edgerton, 59 Fed. 115; Ex It is a valid police regulation in parte Jervey, 66 Fed. 957; Bluthen- connection with the sale of intoxi- thai v. Southern R. Co., 84 Fed. 920. eating drinks that women shall not See also Prentice & E. Commerce be employed for that purpose. Ex Clause of Fed. Const.; Wilson Act parte Hayes, 98 Cal. 555; Foster v. Aug. 8, 1890 (26 Stat. 313); and Police Com'rs of San Francisco, 102 State v. Rhodes, 90 Iowa, 496. Cal. 483; Adams v. Cronin, 29 Colo. i" Champer v. City of Greencastle, 488, 69 Pac. 590; State v. Reynolds, 138 Ind. 339; Ritchie v. Zalesky, 98 14 Mont. 383; City of Hoboken v. Iowa, 589; Com. v. Costello, 133 Goodman, 68 N. J. Law, 217, 51 Atl. Mass. 192; Com. v. Moore, 145 Mass. 1902; Walter v. Com., 88 Pa, 137; 244; Com. v. Sawtelle, 150 Mass. City of Hoboken v. Greiner, 68 N. J. 320; People v. Kennedy, 105 Mich. 75; Law, 592, 53 Atl. 693. Shultz v. Cambridge, 38 Ohio St. It is a fair police regulation to 659. See, also, 24 L. R. A. 768. prohibit any keeper of a house of 172 Menken v. City of Atlanta, 78 public entertainment where intoxi- Ga. 668; Bagley v. State, 103 Ga. eating drinks are sold, from permit- 256 POWERS. 130 the violation of its positive commands, and if in its wisdom it deems expedient, in order to secure the better observance of these positive laws or regulations, it may make those who violate such laws liable civilly for the legitimate and proximate conse- quences of such violation. 173 388. A special statute in this case prohibiting the sale of intoxicating liquors within the limits of a cer- tain city was held invalid as con- trary to that clause of the constitu- tion forbidding the passage of a spe- cial law covered by the provisions of an existing general law. Caldwell v. State, 101 Ga. 557, holds as in the case just cited, the general local option liquor law not having been repealed at the time of the passage of these special acts. See, also, O'Brien v. State, 109 Ga. 51; Embry v. State, 109 Ga. 61; Griffin v. Eaves, 114 Ga. 65; Harris v. State, 114 Ga. 436; In re Bollig, 31 111. 88; Block v. Town of Jack- sonville, 36 111. 301; State v. Gur- lock, 14 Iowa, 444. The City of Ot- tumwa held as not having the ex- clusive power of punishing the il- legal sale of liquors. Town of bloomfleld v. Trimble, 54 Iowa, 399; Dunn v. Inhabitants of Framing- ham, 132 Mass. 436; Village of Fair- mont v. Meyer, 83 Minn. 456; City of Warrensburg v. McHugh, 122 Mo. 649; Village of Green City v. Hoi- singer, 76 Mo. App. 567; Howe v. Treasurer of Plainfield, 37 N. J. Law, 145; McMullen v. City Coun- cil of Charleston, 1 Bay (S. C.) 46; City of Seattle v. Pearson, 15 Wash. 575; Town of Moundsville v. Foun- tain, 27 W. Va. 182; Jelly v. Dils, 27 W. Va. 267; Town of Marion v. Chandler, 6 Ala. 899; Franklin v. Westfall, 27 Kan. 614; State v. Grimes, 83 Minn. 460; State v. Har- ris, 50 Minn. 128. Illegal sales of intoxicating liquors punishable un- der the general law may also be made punishable by ordinance. !"s Mulcahey v. Givens, 115 Ind. 286; Wall v. State, 10 Ind. App. 530; Boos v. State, 11 Ind. App. 257; State v. Cooper, 114 Ind. 12; Neuer- berg v. Gaulter, 4 111. App. 348; Neu v. McKechnie, 95 N. Y. 632; Mead v. Stratton, 87 N. Y. 493; Davis v. Standish, 26 Hun (N. Y.) 608. The statute makes no distinction between cases in which the loss of the means of support is the direct result of the intoxication and those in which it is the remote result thereof; it only requires that it should be established that the loss of the means of support is the re- sult of such intoxication. Beers v. Walhizer, 43 Hun (N. Y.) 254. Con- tra, Bradford v. Boley, 167 Pa. 506. There is also a well established line of cases based in some staies upon express statutory provisions holding that one injured by the wrongful act of a drunken person may have a right of recovery in an action for damages against the dealer in liquor causing the intoxication. See Freese v. Tripp, 70 111. 496; King v. Haley, 86 111. 106; Roth v. Eppy, 80 111. 283; Wilkerson v. Rust, 57 Ind. 172; Church v. Higham, 44 Iowa, 482; Ganssly v. Perkins, 30 Mich. 492; Brooks v. Cook, 44 Mich. 617; Bodge v. Hughes, 53 N. H. 614; Bedore v. Newton, 54 N. H. 117; Reinhardt v. Fritzsche, 69 Hun (N. Y.) 565; Bertholf v. O'Reilly, 74 N. Y. 515; Quinlan v. Welch, 141 N. Y. 158; 132 POLICE POWER. 25} 131. The police power; miscellaneous illustrations of its valid exercise. There will be found, upon an examination of the authorities given in the notes, many ordinances and regulations controlling the conduct of those within the jurisdiction of the law-making power, having for their ultimate object the protection of either the property, members or good morals of society. 17 * 132. The exercise of the police power continued; the exaction of license fees. The state through the exercise of its police power has the right to control and regulate the conduct of the citizens and the use of their property so long as such regulation and control has for its purpose and aim the protection and care of life and property. As members of society the citizens of the state or community Baker V. Beckwith, 29 Ohio St. 314; Northern Pac. R. Co. v. Whalen, 149 U. S. 157; affirming 3 Wash. T. 452; State v. Ludington, 33 Wis. 107. 1"* State of Arkansas v. Kansas & T. Coal Co., 96 Fed. 353. The state in this case held as not having the power to prohibit persons belonging to the "low and lawless type of hu- manity" from coming into the state. Steiner v. Ray, 84 Ala. 93. The sale and inspection of commercial fer- tilizers authorized. Palmer v. Way, 6 Colo. 106. An ordinance requiring owners of lots to construct side- walks in front of them, upheld as a valid police regulation. Platte & D. Canal & Milling Co. v. Lee, 2 Colo. App. 184. Ordinance requiring re-con- struction of a ditch by boxing or fluming held invalid as an impair- ment of vested rights. Wettengel v. City of Denver, 20 Colo. 552. Dis- tribution of hand bills prohibited. See, also, City of Philadelphia v. Brabender, 17 Pa. Super. Ct. 331, 801 Pa. 574, citing City of Philadel- phia v. Philadelphia & R. R. Co., 58 Abb. Corp. 17. Pa. 253, and distinguishing People v. Armstrong, 73 Mich. 288. Griggs v. City of Macon, 103 Ga. 602. Municipality held to have the power to regulate the keeping of dogs within its limits. City of Cairo v. Coleman, 53 111. App. 680. The power to inspect and regulate the sale of "brick, lumber, fire-wood * * *" does not author- ize the inspection of articles of mer- chandise in stationery stores. Town of Rosedale v. Manner, 157 Ind. 390. An ordinance forbidding gates to swing outward held reason- able. In Lehigh Coal & Iron Co. v. Capehart, 49 Minn. 539; Sylvester Coal Co. v. City of St. Louis, 130 Mo. 323, and City of St. Charles v. Eisner, 155 Mo. 671, the official weighing and inspection of coal was authorized. In State v. Read, 12 R. I. 137, a law prohibiting the sale of any merchandise within one mile of the place where a religious society is holding an out-door meeting, un- less the society consents to the sale, held valid as a police regulation. 258 POWERS. 132 owe to their neighbors, and to all who may be interested or af- fected, the use of their property and the exercise of what might be considered, otherwise, as natural and inalienable rights, in such a manner as not to injure or interfere with either their rights or their property. The state has the power as a means to an end, namely, the better exercise of the police power, to impose a fee or license upon property used in a certain manner or upon certain callings or oc- cupations. Ordinarily the state has no right under this power to impose license fees for purposes of revenue without regard to the question of the regulation, control, or use of such property or occu- pation. The imposition of license fees, having for their purpose the better regulation and control of such occupations, or the use of certain property, is valid as coming within the proper exercise of the police power, when they are imposed not for the purpose of obtaining a revenue but for the ostensible one. As concrete illustrations of the valid imposition of license fees, we find, upon an examination of the authorities, that ordinances or regulations have been held valid licensing vehicles; 175 those "5 Washington Elec. Vehicle Transp. Co. v. District of Columbia, 19 App. D. C. 462, automobiles not included. Johnson v. City of Macon, 114 Ga. 426; Gartside v. City of East St. Louis, 43 111. 47; City of Col- linsville v. Cole, 78 111. 114; Gary v. Borough of North Plainfleld, 49 N. J. Law, 110; and Borough of North Plainfleld v. Cary, 50 N. J. Law, 176, hold that a vehicle temporarily en- gaged in a business not subject to the license. Scudder v. Hinshaw, 134 Ind. 56; Tomlinson v. City of Indianapolis, 144 Ind. 142; Veneman v. Jones, 118 Ind. 41. Ordinance designating place where omnibuses and hacks should stand, valid. Sny- der v. City of North Lawrence, 8 Kan. 82; City of Henderson v. Mar- shall (Ky.) 58 S. W. 518. Not ap- plied to wagons used by coal dealer filling orders to customers. Bowser r. Thompson, 103 Ky. 331; Com. v. Page, 155 Mass. 227; St.te v. Robin- son, 42 Minn. 107; City of Helena v. Gray, 7 Mont. 486. Ordinance pro- viding where hacks should stand. Knox City v. Thompson, 19 Mo. App. 523. An ordinance imposing a license fee of twenty-five cents for each wagon run for hire, and an ad- ditional license tax for each six months is, as a matter of law, an ordinance for revenue purposes. City of St. Louis v. Grone, 46 Mo. 574. Vehicles used exclusively for private purposes not subject to li- cense tax. Town of Cameron v. Stephenson, 69 Mo. 372. A municipality has no power to impose a license tax upon wagons of outside residents engaged in hauling in and out of the city. City of St. Louis v. Woodruff, 71 Mo. 92. Public sprinkling cart not subject to the license tax. Kansas City v. Smith, 93 Mo. App. 217; City 132 POLICE POWER. 259 engaged in certain occupations; 176 hackmen, draymen, express- men, and others engaged in carrying passengers, baggage or freight ; 177 regulating or restraining the soliciting of trade for boats, carriages, or railroads; 178 the use of bicycles; and securing permits by a water company before opening a street for the pur- pose either of making connections or repairing leaks. 179 If the charge for such license or permit is greater than necessary to of St. Louis v. Weitzel, 130 Mo. 600; City of Cape May v. Cape May Transp. Co., 64 N. J. Law, 80, 44 Atl. 948; Borough of Belmar v. Barkalow, 67 N. J. Law, 504; City of New York v. Reesing, 77 App. Div. 417, 79 N. Y. Supp. 331; City of Memphis v. American Exp. Co., 102 Term. 336. An ordinance taxing wagon tires of different widths ac- cording to a certain schedule held not a valid exercise of the police power. "It is a law taxing privileges rather than a police regulation to prevent use of narrow tires." 176 W. W. Cargill Co. v. State of Minnesota. 180 U. S. 452; Irving v. City of Highlands, 11 Colo. App. 363; Com. v. Brooks, 109 Mass. 355; State v. Schoenig, 72 Minn. 528; City of St. Paul v. Lytle, 69 Minn. 1; Borough of Warren v. Geer, 117 Pa. 207, 11 Atl. 415; International Trading Stamp Co. v. City of Mem- phis, 101 Tenn. 181. This was a privilege tax, and therefore held ul- tra vires. See, also, article in 25 Am. Law Rev. 595, by Wm. L. Hodge, and 398-409, post, on license fees, where the subject is fully considered. ITT state v. Robinson. 42 Minn. 107; Ex parte Battis, 40 Tex. Cr. R. 112, 48 S. W. 513. An ordinance in this case making it a misde- meanor to "stop, stand or detain" any "carriage, hack or vehicle" un- der certain circumstances and at cer- tain places was held an unreason- able and invalid exercise of the po- lice power as possessed by a city to license, tax and regulate hack- men, draymen and others. Ex parte Vance, 42 Tex. Cr. R. 619, 62 S. W. 568. Here an ordinance requiring hack drivers to remain with their vehicles, excluding those in charge of street cars, was held an unrea- sonable discrimination. See, also, 399-409, post, where subject of license fees is fully considered. 178 Lindsay v. City of Anniston, 104 Ala. 257; Com. v. Matthews, 122 Mass. 60; City of Chillicothe v. Brown, 38 Mo. App. 609. In Nap- man v. People, 19 Mich. 352, it Is held that arrangements made, by railroad companies with omnibus companies for the delivery of pas- sengers and their baggage, not un- lawful in themselves, and which if carried out in their own cars or on their own premises are exempt from municipal interference, and city or- dinances prohibiting hackmen from approaching within a certain dis- tance of trains to solicit business, so far as they attempt such inter- ference, are invalid. Village of Niagara Falls v. Salt, 45 Hun (N. Y.) 41. 179 Borough of Lansdowne v. Springfield Water Co., 7 Del. Co. R. 506. Bicycles: Davis v. Petrinovich, 112 Ala. 654; Mercer v. Corbin, 117 Ind. 450; Swift v. City of Topeka, 43 Kan. 671; In re Wright, 29 Hun 260 POWERS. 133 cover the cost of the regulation or inspection, such charge will undoubtedly be held unreasonable and the ordinance imposing the same invalid, upon the theory that the police power cannot be invoked or exercised as a general means of raising revenue. 180 133. The exercise of the police power; further illustrations. The peace and safety of the community are proper ends for the exercise of the police power by public authorities, and if in their discretion, subject to general limitations, the carrying on of an occupation, the making of certain noises, 181 or the doing of certain acts, 182 are held to disturb the public peace or be a (N. Y.) 457; Fuller v. Redding, 16 Misc. (N. Y.) 634; State v. Yopp, 97 N. C. 477. iso City of Saginaw v. Swift Elec. Light Co., 113 Mich. 660. An ordi- nance charging electric light com- panies fifty cents per annum for in- specting each pole maintained by them held unreasonable and invalid, as the actual cost of the inspection did not exceed five cents per pole. City of New Haven v. New Haven Water Co., 44 Conn. 105. See, also, as illustrating text: Taylor v. City of Pine Bluffs, 34 Ark. 603, which holds that under the authority grant- ed to pass ordinances providing for the weighing of hay, wood and other articles offered for sale, a municipal corporation has no power to pass such an ordinance for the purpose of raising revenue. isi City of Chariton v. Simmons, 87 Iowa, 226; City of Bloomington v. Richardson, 38 111. App. 60; Com. v. Plaisted, 148 Mass. 375. An or- dinance restraining itinerant mu- sicians from playing on the street, valid, and a member of the Salva- tion Army participating in a parade defined as an itinerant musician. This held true although it was claimed that the act was one of re- ligious worship only. The court said that the constitutional guaran- tee of religious freedom did not pre- vent the adoption of reasonable rules for the use of streets and pub- lic places. Frazee's Case, 63 Mich. 396. An ordinance in this case which pro- hibited persons, associations or or- ganizations from marching, parad- ing or driving in or upon or through the streets of the city with musical instruments, bugles, flags or torches without first having obtained the consent of the mayor or common council of the city, was held unrea- sonable and invalid. Village of Vicksburg v. Briggs, 102 Mich. 551. Boisterous assemblages prohibited; In re Bushey, 105 Mich. 64; State v. White, 64 N. H. 48; Roderick v. Whitson, 51 Hun (N. Y.) 620, itin- erant musicians; Washington Com'rs v. Frank, 46 N. C. (1 Jones) 436. The principle stated in Fra- zer's Case, 63 Mich. 396, has been followed in City of Chicago v. Trot- ter, 136 111. 430; Anderson v. City of Wellington, 40 Kan. 173, and State v. Bering, 84 Wis. 585. isa Saxton v. City of Peoria, 75 111. App. 397. Ordinance prohibiting persons from entering upon private 134 POLICE POWER. 261 menace to the public safety, comfort and convenience, regulations controlling or prohibiting such acts or occupations are undoubt- edly valid. 183 134. Establishment of public markets. The power of the public authorities to inspect and control the sale of articles of food intended for consumption is conceded, the object being the preservation of the health of the community. The power exists therefore in municipal authorities to either es- tablish, and then regulate and control public markets, 184 as they premises against consent of owner is a valid police regulation. Ex parte McCarver, 39 Tex. Cr. R. 448, 46 S. W. 936. Curfew or- dinance held unreasonable and therefore void. City of Buffalo v. Marion, 13 Misc. (N. Y.) 639. An ordinance prohibit- ing sale of watches at auction after six o'clock in the evening valid. iss City of Cottonwood Falls v. Smith, 36 Kan. 401. Shooting fire arms. City of Newport v. Holly, 108 Ky. 621. Boisterous and disorderly conduct. Com. v. Abrahams, 156 Mass. 57. Speaking in public park without permission. Village of Vicksburg v. Briggs, 102 Mich. 551. Boisterous assemblage. In re Bushy, 105 Mich. 64. General dis- turbance. State v. Cantieny, 34 Minn. 1. Noisy and disorderly conduct. An ordinance of the city of Minne- apolis prohibited the making of "any noise, riot, disturbance or im- proper diversion." The court in con- struing the word "noise" said, "We think too, that it was a valid pro- hibition of the making of any un- reasonable 'noise' of a nature to disturb the community such as shouting upon the streets at night even though it should so happen that no one was in fact aroused from sleep, alarmed or disturbed." City of St. Charles v. Meyer, 58 Mo. 86. Charivari. State v. Cainan, 94 N. C. 880. Loud and boisterous swearing. See, also, cases cited generally under this section. is* See cases on the establishment and regulation of public markets collected in 27 Am. & Eng. Corp. Cas. 625; Attorney General v. Borough of Cambridge, L. R. 6 H. L. 303; City of New Orleans v. Mor- ris, 3 Woods, 103, Fed. Cas. No. 10,- 182; Ex parte Byrd, 84 Ala. 17; City of Jacksonville v. Ledwith, 26 Fla. 163; Blanchard v. Ivers, 40 Fla. 117; Bethune v. Hughes, 28 Ga. 560; City of Atlanta v. White, 33 Ga. 229; Caldwell v. City of Alton, 33 111. 416. City of Bloomington v. Wahl, 46 111. 489. A grant to a municipality to establish and maintain public markets with the proviso that the mayor may license private markets does not give to that municipality the power to prohibit sales else- where than at the public market. City of Burlington v. Dankwardt, 73 Iowa, 170; Davis v. Town of Ani- ta, 73 Iowa, 325; Guillotte's Heirs v. City of New Orleans, 12 La. Ann. 479. Power of council to discontinue pub- lic markets considered. Cougot v. 262 POWERS. 135 may be termed, or places at which all articles of food shall be offered for sale and sold, or to regulate and control markets es- tablished by private individuals and carried on as private enter- prises. The health of the community being, as many times sug- gested, one of the purposes of the organization of government, and the purity of food and drink having such an important effect upon that health, is a ground for the exercise of the power. 188 135. Public markets ; the power to regulate. The power to establish and maintain a public market .would necessarily carry with it as incidental to that authority or as an implied power, the right to pass all the rules and regulations City of New Orleans, 16 La. Ann. 21; Spaulding v. City of Lowell, 40 Mass. (23 Pick.) 71. Gale v. Village of Kalamazoo, 23 Mich. 344. A city cannot by con- tract bargain away any of its legis- lative powers. Henkel v. City of Detroit, 49 Mich. 249; Taggart v. City of Detroit, 71 Mich. 92. Petz v. City of Detroit, 95 Mich. 169. Power to discontinue public market after once being established considered in this case. City of St. Paul v. Colter, 12 Minn. 41 (Gil. 16) ; State v. District Ct. of Ramsey County, 84 Minn. 377; City of St. Louis v. Jackson, 25 Mo. 37; Harney v. City of St. Louis, 90 Mo. 214. Ketchum v. City of Buffalo, 14 N. Y. (4 Kern.) 356. The express power given to establish a market, as a necessary incident to that au- thority, follows the right to pur- chase real estate upon which to lo- cate that market. Peterson v. City of New York, 17 N. Y. 449; Wade v. City of New Bern, 77 N. C. 460; State v. Tyson, 111 N. C. 687; White v. Kent, 11 Ohio St. 550; Gall v. City of Cincinnati, 18 Ohio St. 563. Wartman v. City of Philadelphia, 33 Pa. 202. The right to establish markets and to shift them from place to place does not grant by im- plication the right to build them on the public highway. City of Pales- tine v. Barnes, 50 Tex. 538; Yatea v. City of Milwaukee, 12 Wis. 673; Wahl v. City of Milwaukee, 23 Wis. 272. Ordinance authorizing city butchers to have their slaughtering done at certain specified establish- ments, etc., valid. In common with many powers be- longing to municipal corporations, the right to establish markets is a continuing one. See City of Jack- sonville v. Ledwith, 26 Fla. 163; Cooper v. City of Detroit, 42 Mich. 584; Gall v. City of Cincinnati, and Wartmen v. City of Philadelphia, supra. iss State v. Garibaldi, 44 La. Ann. 809. The power to regulate private markets cannot be delegated or vicariously exercised unless the au- thority to delegate is specially grant- ed by the legislature, and an ordi- nance requiring written consent ol all property owners within six hun- dred feet of place selected for mar- ket is void. Twelfth St. Market Co. v. Philadelphia & R. Terminal R. Co., 142 Pa. 580. 135 POLICE POWER. 263 necessary to maintain the market itself and the foods offered for sale in that condition which best accomplish the purpose the basis of a legal exercise of the power, 188 and so long as these rules and regulations concerning the manner and the time in which goods shall be offered for sale ; 187 the right of inspection by the proper officials of the municipality; the confiscation and destruction of foods tainted or otherwise unfit for food, and provisions that no articles shall be offered for sale except as inspected or offered at such public market, 188 are uniform and certain in their ap- plication, are reasonable, and do not discriminate either as against persons or localities; they are valid and legitimate exer- cises of the police power of the state. 189 186 city of Bowling Green v. Car- son, 73 Ky. (10 Bush) 64; Douat v. Beombay, 15 La. Ann. 377; City of New Orleans v. Stafford, 27 La. Ann. 417; Vidalat v. City of New Orleans, 43 La. Ann. 1121; Hatch v. Pendergast, 15 Md. 251. State v. Rowe, 72 Md. 548. An ordinance setting apart a portion of the public market for the sale of fish and requiring those desiring to engage in such business to pay a yearly license of $100 is void, being an attempt to raise revenue and not a legitimate exercise of the police power. Graves v. City of Biloxi (Miss.) 29 So. 768; City of St. Louis v. Jackson, 25 Mo. 37; City of St. Louis v. Freivogel, 95 Mo. 533. Kip v. City of Paterson, 26 N. J. Law (2 Dutch.) 298. An ordinance is illegal and not a reasonable police regulation where it imposes a tax of 5c upon those using market stands for each time used. But in City of Cincinnati v. Buckingham, 10 Ohio, 257, a charge of twenty-five cents was not held unlawful. Hutching v. Town of Durham, 118 N. C. 457. The municipal power to revoke a license granted one for the use of a stall in a municipal market house sustained. City of Philadel- phia v. Davis, 6 Watts & S. (Pa.) 269; Newson v. City of Galveston, 76 Tex. 559. I&T Henry v. City of Macon, 91 Ga. 268; City of Bowling Green v. Car- son, 73 Ky. (10 Bush) 64; State v. Sarradat, 46 La. Ann. 700. iss Henry v. City of Macon, 91 Ga. 268; City of Bloomington v. Wahl, 46 111. 489. An ordinance prohibit- ing persons from keeping, at any hour of the day, private markets outside of the designated public market, held unreasonable as being in restraint of trade and tending to create a monopoly. City of New Orleans v. Kientz, 52 La. Ann. 950; Town of Crowley v. Rucker, 107 La. 213; Nightingale's Case, 28 Mass. (11 Pick.) 167; Tag- gart v. City of Detroit, 71 Mich. 92; Hughes v. Recorder's Ct. of Detroit, 75 Mich. 574. 189 As a rule, ordinances are valid, prohibiting the sale of the usual market commodities at places other than those designated or at the pub- lic market. This is especially true where such regulations or prohibi- tions are uniform and reasonable in their operation and application, see Natal v. State of Louisiana. 139 U. 264 POWERS. 136 136. The right to authorize private markets. As already stated, the public authorities may, in their discre- tion, either construct and maintain public markets or they may give to certain individuals within their jurisdiction the right to construct and maintain private markets at which foods or other articles intended for consumption by the community may be of- fered for sale and sold. 190 The power to pass necessary rules for S. 621; affirming 39 La. Ann. 439; Shelton v. City of Mobile, 30 Ala. 540; Ex parte Byrd, 84 Ala. 17; City of Jacksonville v. Ledwith, 26 Fla. 163; State v. Berard, 40 La. Ann. 172; Gossigi v. City of New Orleans, 41 La. Ann. 522; State v. Davidson, 50 La. Ann. 1297. But an ordinance cannot interfere with the sale of articles in the original packages in which they are imported into the state. Com. v. Ellis, 158 Mass. 555; People v. Keir, 78 Mich. 98; State v. McMahon, 62 Minn. 110; City of St. Louis v. Jackson, 25 Mo. 37; Por- ter v. City of Water Valley, 70 Miss. 560; Bush v. Seabury, 8 Johns. (N. Y.) 327; City of Buffalo v. Webster, 10 Wend. (N. Y.) 100; State v. Pendergrass, 106 N. C. 664; Town Council of Winnsboro v. Smart, 11 Rich. Law (S. C.) 551; Vosse v. City of Memphis, 77 Tenn. (9 Lea) 294; Newson v. City of Galveston, 76 Tex. 559. Though some cases hold such ordinances in restraint of trade, as tending to create a monopoly, op- pressive and unreasonable, and therefore illegal, see Bethune v. Hughes, 28 Ga. 560; Henry v. City of Macon, 91 Ga. 268; Caldwell v. City of Alton, 33 111. 416. Decision based upon limited charter pro- visions. City of Bloomington v. Wahl, 46 111. 489; City of Davenport v. Kelly, 7 Iowa, 102; City of Burl- ington v. Dankwardt, 73 Iowa, 170; City of Bowling Green v. Carson, 73 Ky. (10 Bush) 64; Lamarque v. City of New Orleans, 1 McGloin (La.) 28; State v. Blaser, 36 La. Ann. 363; Mestayer v. Corrige, 38 La. Ann. 707; Vidalat v. City of New Orleans, 43 La. Ann. 1121; Hughes v. Record- er's Ct. of Detroit, 75 Mich. 574; City of St. Paul v. Laidler, 2 Minn. 190 (Gil. 159). 190 Natal v. State of Louisiana, 139 U. S. 621; Le Claire v. City of Dav- enport, 13 Iowa, 210; State v. Be- rard, 40 La. Ann. 33; State v. Bar- the, 41 La. Ann. 46. Ordinance pro- hibiting private markets within ra- dius of six squares from public mar- ket does not contemplate measure- ment on an air line, but a distance of six squares over which custom- ers would be able to walk from one market to the other. State v. Natal, 42 La. Ann. 612. Square and block mean the same thing, in regard to distance from city market. State v. Dubarry, 44 La. Ann. 1117. A city ordinance giving the city council the power to grant per- mits for the establishment or main- tenance of private markets was held invalid, the discretion vested by such ordinance in the city council being in no way regulated or controlled. State v. Dubarry, 46 La. Ann. 33; Gossigi v. City of New Orleans, 41 La. Ann. 522; City of New Orleans v. Faber, 105 La. 209. New Orleans or- dinance No. 312, adopted under au 137 POLICE POWER. 265 keeping the building itself and the articles within it in a health- ful and proper condition exists in the same degree and to the same extent as in the maintenance of public markets. 191 137. The control of nuisances. Public authorities have also the further power either inher- ently possessed or as subordinate agencies obtained through the grant of lawful authority to regulate and suppress or abate what are commonly called public nuisances. 192 This right to control thority of Act No. 34 of 1900, not un- constitutional as prohibiting a pri- vate market within 3200 feet of a public market when prior to the passage of the ordinance a dealer had established a market within the pro- hibited lines. The court held that every citizen holds his property sub- ject to the proper exercise of the po- lice power and that he did not ac- quire a vested right to conduct the same business in the same place. Com. v. Ellis, 158 Mass. 555. Or- dinance prohibiting selling of goods or articles in any street or from any building, except in accordance with a permit from superintendent of streets is reasonable, constitutional and valid. Porter v. City of Water Valley, 70 Miss. 560; Schopp v. City of St. Louis, 117 Mo. 131. A power "to regulate the use of streets" does not authorize an ordinance leasing space on a street in front of business houses for produce dealers, such use of street being a nuisance and un- lawful. 191 City of Jacksonville v. Led- with, 26 Pla. 163; City of New Or- leans v. Morris, 3 Woods, 103, Fed. Cas. No. 10,182. i2Soltau v. De Held, 2 Sim. (N. S.) 133. "I conceive that to consti- tute a public nuisance the thing must be such as in its nature or its consequences, is a nuisance, an in- jury or a damage to all persons who come within the sphere of its opera- tion though it may be so in a great- er degree to some than it is to oth- ers." Ex parte Taylor, 87 Cal. 91; Beck- ley v. Skroh, 19 'Mo. App. 75. "The only requirement of the law is, that the damage must be real, not fanci- ful; not a mere annoyance to a per- son of fastidious tastes and habits, but such sensible and real damages as a sensible person, if subjected to it, would find injurious to him. Any use of property that corrupts the atmosphere with noxious vapors and noisome smells, producing injury to property or health, or impairing the comfortable enjoyment of it as a dwelling, etc., is a nuisance inviting a recovery for the damage." Westcott v. Middleton, 43 N. J. Eq. (16 Stew.) 478; Board of Health v. Jersey City, 55 N. J. Eq. 116; Board of Health of Yonkers v. Cop- cutt, 140 N. Y. 12. City of Rochester v. Collins, 12 Barb. (N. Y.) 559. The power giv- en to abate and remove nuisances in this case was held as conferring no authority to prevent them nor to im- pose penalties for their creation. Clark v. City of Syracuse, 13 Barb. (N. Y.) 32; Rogers v. Barker, 31 Barb. (N. Y.) 447; Hellen v. Noe, 206 POWERS. g 137 and suppress public nuisances comes within the valid exercise of the police power by the state and has for its purpose the care and protection of society as a whole and the regulation of the use of property and the acts of individuals as to best conserve the public interests and lead to that condition of the state result- ing in the greatest advantage to all. The various acts or conditions named in preceding sections may be controlled and regulated not only as especially detrimen- tal to the public health, safety or morals, but directly as nui- sances and indirectly detrimental or injurious. A nuisance has been defined as "Anything that produces an annoyance, anything that disturbs one or is offensive ; but in legal phraseology it is applied to that class of wrongs that arise from the unreasonable, unwarrantable or unlawful use by a person of his own property, real or personal, or from his own improper, indecent or unlawful personal conduct, working an obstruction of or injury to a right of another or of the public, and produc- ing such material annoyance, inconvenience, discomfort or hurt, that the law will presume a consequent damage." And further: "A public nuisance is a violation of a public right, either by a direct encroachment upon public rights or property, or by doing some act which tends to a common injury, or by omitting to do some act which the common good requires, and which it is the 25 N. C. (3 Ired.) 493; Appeal of person charged. No excuse or de- Borough of Butler (Pa.) 1 Atl. 604. fense is possible. The fact being Com. v. Miller, 139 Pa. 77. "If it established, that the act or thing en- affects the rights of the community dangers the life, health or property in general; not merely of a few of the public, or any considerable persons; if it damages or menaces part of it, the offense is proved, and all persons who come within the tiiere can be no justification. Every sphere of its operation though it person is absolutely bound so to may vary in its effects on individ- conduct himself, and so to exercise uals it amounts to a common or a what are regarded as his natural or public nuisance." personal rights, as not to interfere Com. v. Yost, 197 Pa. 171; Parker unnecessarily or unreasonably with ft W. Pub. Health, 178. "If the other persons in the exercise of unwarranted act or thing complain- rights common to all citizens. Ev- ed of does in fact operate injurious- ery breach of this obligation con- ly upon the rights of the public, stitutes a nuisance. Such has al- it is a common nuisance, irrespec- ways been the law; the principle tive of any motive or intent, wrong- has been invariable." ful or innocent, on the part of the 137 POLICE POWER. 267 duty of a person to do, and the omission to do which results in- juriously to the public. Every person owes certain duties to the public, and the failure to discharge them, whereby the public is injured, is regarded at common law as a quasi crime. Among these duties is that of so using his own property as not to injure the public." 193 Motive ordinarily is not one of the essentials of an act neces- sary to characterize it as a nuisance. Neither is it true that the mere legislative determination that a certain act or use of prop- erty is a nuisance, establishes the fact that such act, condition 193 Wood, Nuisances, 1, 17; Cos- tello v. State, 108 Ala. 45; City & County of San Francisco v. Buck- man, 111 Cal. 25; Walker v. Jame- son, 140 Ind. 591; City of Evans- ville v. Miller, 146 Ind. 613; City of Centerville v. Miller, 57 Iowa, 56; Municipality No. 1 v. Wilson, 5 La. Ann. 747; Board of Aldermen of Opelousas v. Norman, 51 La. Ann. 736; Hisey v. City of Mexico, 61 Mo. App. 248; Ex parte O'Leary, 65 Miss. 80. Hutton v. City of Camaen, 39 N. J. Law, 122. "The authority to decide when a nuisance exists, is an au- thority to find facts, to estimate their force, and to apply rules of law to the case thus made. This is a judicial function, and it is a func- tion applicable to a numerous class of important interests. The use of land and buildings, the enjoyment of water rights, the practice of many trades and occupations, and the business of manufacturing in particular localities, all fall, on some occasions, in important respects, within its sphere." * * * "The right to abate public nuisances, whether we regard it as existing in the municipalities, or in the com- munity, or in the hands of the In- dividual, is a common-law right, and is derived in every instance of its exercise, from the same source that of necessity. It is akin to the right of destroying property for the pub- lic safety in case of the prevalence of a devastating fire or other con- trolling exigency. But the necessity must be present to justify the exer- cise of the right, and whether pres- ent or not, must be submitted to a jury under the guidance of a court. The finding of a sanitary committee, or of a municipal council, or of any other body of a similar kind, can have no effect whatever, for any pur- pose, upon the ultimate disposition of a matter of this kind." In re Jacobs, 98 N. Y. 98; People v. Rosenberg, 138 N. Y. 410; Wilson v. Phoenix Mfg. Co., 40 W. Va. 413; Town of Davis v. Davis, 40 W. Va. 464; Huntington & K. Land Devel- opment Co. v. Phoenix Mfg. Co., 40 W. Va. 711; People v. Burtleson, 14 Utah, 258. One who uses his prop- erty so as to annoy, injure or en- danger the comfort, repose, health or safety of three or more persons, though he does so in conducting a lawful business in a reasonable and careful manner and in good faith, commits a nuisance. See, also, defi- nitions in preceding note. 268 POWERS. 137 or use of property is a nuisance, without regard, as the cases hold, to its nature, situation and use. 19 * i* Ward v. City of Little Rock, 41 Ark. 526; Gaines v. Waters, 64 Ark. 609; Town of Arkadelphia v. Clark, 52 Ark. 23; Ex parte Ah Fook, 49 Cal. 402; Ex parte Fiske, 72 Cal. 125; In re Flaherty, 105 Cal. 558. In Los Angeles County v. Spencer, 126 Cal. 670, Cal. St. 1881, p. 88, as amended by St. 1889, p. 413, and 1891, pp. 260 and 268, held consti- tutional. The power granted to de- clare orchards and nurseries nui- sances where certain pests exist not interfering or encroaching upon oth- er executive, judicial or legislative functions of government. City of Denver v. Mullen, 7 Colo. 345; Darst v. People, 51 111. 286. The declaration that all intoxicating liquors constitute a nuisance held in this case not to make them such without judicial determination. Chicago, R. I. & P. R. Co. v. City of Joliet, 79 111. 25. See, also, Har- mon v. City of Chicago, 110 111. 400; and Moses v. U. S., 16 App. D. C. 428; Laugel v. City of Bushnell, 197 111. 20; Nazworthy v. City of Sullivan, 55 111. App. 48; Village of Des Plaines v. Poyer, 123 111. 348; Everett v. City of Council Bluffs, 46 Iowa, 66; Train v. Boston Disin- fecting Co., 144 Mass. 523; City of Newton v. Joyce, 166 Mass. 83; State v. Mott, 61 Md. 297; Fieri v. Town of Shieldsboro, 42 Miss. 493; Lake v. City of Aberdeen, 57 Miss. 260; Ex parte O'Leary, 65 Miss. 80; Liles v. Cawthorn, 78 Miss. 559. City of St. Paul v. Gilfillan, 36 Minn. 298. The charter conferring power upon a city council to re- move or abate nuisances was held as conferring no power to declare what acts or omissions constitute a public nuisance. New Jersey R. & Transp. Co. v. Jersey City, 29 N. J. Law (5 Dutch.) 170; Board of Health of Asbury Park v. Rosenthal, 67 N. J. Law, 216, 50 Atl. 439; Coast Co. v. Bor- ough of Spring Lake, 56 N. J. Eq. 615; affirmed 58 N. J. Eq. 586; Un- derwood v. Green, 42 N. Y. 140; Golden v. Health Dept. of New York, 21 App. Div. 420, 47 N. Y. Supp. 623. In Griffin v. City of Gloversville, 67 App. Div. 403, 73 N. Y. Supp. 684, the question of whether a particu- lar thing is a common nuisance held to be one for judicial determina- tion; the declaration by city ordi- nance that it is such, not giving it that character. Grossman v. City of Oakland, 30 Or. 478. Ordinance absolutely pro- hibiting a railroad company from fencing its tracks in the platted por- tion of the city, and declaring such fence a nuisance, is void, since the city cannot assert a particular use of property to be a nuisance, un- less such use comes within the com- mon law or statutory idea of a nui- sance, or is so in fact. Com. v. Yost, 11 Pa. Super. Ct. 323, holds that a board of health has the power to declare and abate as a nuisance whatever was per se a nui- sance at common law. Miller v. Burch, 32 Tex. 208; Pye v. Peterson, 45 Tex. 312; Bittenhaus v. Johnston, 92 Wis. 588. See, also, McQuillin, Mun. Ord. 440-444; Parker & W. Pub. Health, 177 et seq., and Horr. & Bemis, Mun. Ord. 250- 255; State v. Indianapolis Union R. Co., 160 Ind. 45, 60 L. R. A. 831. 137 POLICE POWER. 269 In a recent case in the supreme court of the United States ih n late Justice Miller said: "The mere declaration by the cit. council of Milwaukee that a certain structure was an encroach- ment or obstruction did not make it so, nor could such declara- tion make it a nuisance unless it in fact had that character. It is a doctrine not to be tolerated in this country, that a municipal corporation, without any general laws either of the city or of the state, within which a given structure can be shown to be a nuisance, can, by its mere declaration that it is one, subject it to removal by any person supposed to be aggrieved, or even by the city itself. This would place every house, every business, and all the property of the city, at the uncontrolled will of the temporary local authorities." 195 The use of care in the doing of Public authorities ordinarily with- out legislative authority cannot le- galize a common nuisance. State v. Luce, 9 Houst. (Del.) 396; Lewis v. Alexander, 24 Can. Sup. Ct. 551. Some cases, however, hold contrary to the great weight of authority that city officials may be vested with the power to determine and abate nuisances. See Com. v. Yost, 11 Pa. Super. Ct. 323; Roberts v. Ogle, 30 111. 459; Block v. Town of Jackson- ville, 36 111. 301. North Chicago City R. Co. v. Town of Lake View, 105 111. 207. "In doubtful cases where a thing may or may not be a nuisance de- pending upon a variety of circum- stances requiring judgment and dis- cretion on the part of the town au- thorities in exercising their legisla- tive functions under a general dele- gation of power like the one we are considering, their action under such circumstances would be conclusive of the question." City of St. Louis v. Stern, 3 Mo. App. 48; Green v. Lake, 60 Miss. 451. i5 Yates v. City of Milwaukee, 77 U. S. (10 Wall.) 497, 505. See, also, Lawton v. Steele, 119 N. Y. 233, where the court say: "The statute declares and defines a new species of public nuisance, not known to the common law, nor declared to be such by any prior statute. But we know of no limitation of legislative power which precludes the legisla- ture from enlarging the category of public nuisances, or from declaring places or property used to the detri- ment of public interests or to the in- jury of the health, morals or wel- fare of the community, public nui- sances, although not such at com- mon law. There are, of course, lim- itations upon the exercise of this power. The legislature cannot use it as a cover for withdrawing prop- erty from the protection of the law, or arbitrarily, where no public right or interest is involved, declare prop- erty a nuisance for the purpose of devoting it to destruction. If the court can judicially see that the statute is a mere evasion, or was framed for the purpose of individ- ual oppression, it will set it aside as unconstitutional, but not other- wise." 270 POWERS. 137 an act is not a question ordinarily involved in a determination of its character as a nuisance. As said by a writer on this sub- ject, "It is merely a question of results." 196 In the notes will be found many cases classified and chrono- logically arranged, illustrating the application of controlling principles to individual cases. 197 The grant to a municipal cor- i9Cahill v. Eastman, 18 Minn. 324 (Gil. 292); Tremain v. Cohoes Co., 2 N. Y. (2 Comst.) 162; Wood, Nuisances, 27. "The question of care is not an element in this class of wrongs; it is merely a question of results, and the fact that inju- rious results proceed from the busi- ness under such circumstances would have a tendency to show the business a nuisance per se rather than to operate as an excuse or de- fense, and the courts would feel compelled to say that, under such circumstances, the business is intol- erable, except so far removed, from residences and places of business as to be beyond the power of visiting its ill results upon individuals or the public." 197 Ordinances prohibiting the run- ning at large of domestic animals. Brophy v. Hyatt, 10 Colo. 223; City of Quincy v. O'Brien, 24 111. App. 591; Cochrane v. City of Frostburg, 81 Md. 54; Com. v. Chase, 60 Mass. (6 Gush.) 248; Grover v. Huckins, 26 Mich. 476; Perry v. Chatham County Com'rs, 130 N. C. 558, 41 S. E. 787; Crosby v. Warren, 1 Rich. Law (S. C.) 385; Moore v. State, 79 Tenn. (11 Lea) 35; City of Waco T. Powell, 32 Tex. 258; Washington Corp. v. Lynch, 5 Cranch, C. C. 498, Fed. Gas. No. 17,231. Ordinances relative to the running at large of dogs. Washington Corp. v. Lynch, 5 Cranch, C. C. 498, Fed. Cas. No. 17,231; Haller v. Sheridan, 27 Ind. 494; Com. v. Dow, 51 Mass. (10 Mete.) 383; Com. v. Chase, 60 Mass. (6 Gush.) 248; City of Fari- bault v. Wilson, 34 Minn. 254; City of Carthage v. Rhodes, 101 Mo. 175. But see City of Washington v. Meigs, 1 MacArthur (D. C.) 53, where it is held that an ordinance which punishes by fine or imprison- ment the keeping of dogs without the payment of the license required is invalid. The keeping and use of animals for certain purposes regarded as a public nuisance: Gibson v. Town of Harrison, 69 Ark. 385, an ordi- nance regulating keeping of dogs held valid; Ex parte Foote, 70 Ark. 12, 65 S. W. 706; In re Linehan, 72 Cal. 114, an ordinance prohibiting the keeping of more than two cows within certain parts of the city of San Francisco, valid; Hoops v. "Village of Ipava, 55 III. App. 94; Walker v. Towle, 156 Ind. 639, an ordinance providing for the muz- zling of dogs, valid; State v. Hoi- comb, 68 Iowa, 107, an ordinance prohibiting the maintenance of hog pens held not unreasonable in city of 15,000 people. City of Burlington v. Stockwell, 5 Kan. App. 569, 47 Pac. 988, the fact that pig pens were kept as clean as they could be under the cir- cumstances constituted no defense when evidence proved that the stench therefrom was a public nui- sance. City of Washington v. Meigs, 1 MacArthur (D. C.) 53. In the ab- 137 POLICE POWER. 271 poration to control or regulate a nuisance, or the general grant of the right to exercise the police power, it seems to be quite generally held, does not carry with it the power to totally sup- sence of a stated law declaring the keeping of dogs an abatable nui- sance, their simple ownership could not be punished as an offense under the general implied powers of a city to prescribe police regulations. State v. Mahner, 43 La. Ann. 496; City of Hagerstown v. Witmer, 86 Md. 293. An ordinance prohibiting dogs from running at large held good under general authority to abate nuisances. In Com. v. Young, 135 Mass. 526, the power of a board of health to interfere with the "em- ployment" of one keeping one hun- dred and fifty swine, considered. State v. Boll, 59 Mo. 321; Board of Health of Raritan Tp. v. Henzler (N. J. Eq.) 41 Atl. 228. In Fox v. Mohawk & H. R. Humane Soc., 165 N. Y. 517, 59 N. E. 353, Laws New York, 1896, c. 448, authorizing the humane society to dispose of un- licensed dogs held not unconstitu- tional, the killing of such dogs with- out notice to the owner not consid- ered as the taking of property with- out due process of law, the court holding that there can be EO prop- erty in dogs as against the police power of the state. Ex parte Robin- son, 30 Tex. App. 493. See, also, McQuillin Mun. Ord. 449-451, with cases cited relative to the estab- lishment and maintenance of dai- ries and cow stables and the keeping of livery stables, hogs and hog pens. The doing of certain acts regard- ed as a nuisance: Johnson v. Bal- timore & P. R. Co., 4 App. D. C. 491. Unlawful occupation of a pub- lic thoroughfare a public nuisance to be abated by public authorities. Moses v. U. S., 16 App. D. C. 428. Act of Cong. Feb. 2d, 1899 (30 Stat. 812), declaring the emission of dense black smoke or cinders from any smoke stack or chimney a pub- lic nuisance, not unconstitutional. The court also held that no discrim- ination was made through its sole application to "any stationary en- gine, steam boiler or furnace." Ex parte Casinello, 62 Cal. 538. Throwing garbage into the public streets, a nuisance. People v. Truckee Lumber Co., 116 Cal. 397. The placing of deleterious refuse in a stream, thereby poison- ing the waters and killing fish, are acts constituting a public nuisance. Ex parte Knapp, 127 Cal. 101. The transportation of game from one county to another cannot be inter- fered with. The weight of authority seems to be contrary to this hold- ing, however. May v. People, 1 Colo. App. 157. To prohibit storing hides within a city without permission from the city council is not within the pow- ers conferred on municipal authori- ties to declare what shall be a nui- sance and to abate the same. In Northwestern Fertilizing Co. v. Vil- lage of Hyde Park, 70 111. 634, the license to manufacture granted by town authorities to a fertilizing com- pany held not a continuing right but only a police regulation under which the company could claim no privi- leges. North Chicago City R. Co. v. Town of Lake View, 105 111. 207. The run- ning of street cars by steam de- clared a nuisance. 272 POWERS. 137 press a nuisance. Other limitations and restrictions upon the power of municipal authorities to control, regulate or abate nui- sances, will be found in the constitutional restrictions and lim- In State v. Heidenhain, 42 La. Ann. 483. Smoking in street cars not permitted. Boehm v. City of Baltimore, 61 Md. 259; People v. Lewis, 86 Mich. 273. Smoke ordinance exempting dwell- ing houses and steamboats from its operation is not invalid as unrea- sonable discrimination between classes. City of Grand Rapids v. De Vries, 123 Mich. 570. Garbage ordinance is reasonable and valid, since refuse accumulations of themselves might be legally regarded as nuisances. City of St. Paul v. Gilfillan, 36 Minn. 298. Ordinance No. 618, as passed by the city council of St. Paul, Minnesota, void, the ordinance declaring the emission of dense smoke from smoke stacks a public nuisance. The court held that the question of whether such act was a nuisance depended upon the facts in the case. City of St. Louis v. Edward Heitzeberg Packing & Provision Co., 141 Mo. 375. The court here fol- lowed the doctrine announced in City of St. Paul v. Gilfillan, and held that a city has no power to de- clare the emission into the open air of dense black or thick gray smoke a nuisance under a charter giving it the power to "declare, prevent and abate nuisances." Sigler v. City of Cleveland, 3 Ohio, N. P. 119. City has no power to prohibit the emission of dense smoke unless it causes an injury or constitutes a nuisance. New Jersey R. & Transp. Co. v. Jersey City, 29 N. J. Law (5 Dutch) 170; People v. Cunningham, 1 Denio (N. Y.) 524. The delivery of slops by a distillery to carts and wagons in a public street held a public nui- sance and abatable. Gould v. City of Rochester, 105 N. Y. 46. Discharge of sewage by a city is a public nuisance and abat- able by the town injured. In People v. Garabed, 20 Misc. 127, 45 N. Y. Supp. 827. An ordinance prohibiting the beating of drums and tambourines in the street with- out the permission of the president of the village held valid. In People v. City of Rochester, 44 Hun (N. Y.) 166, a singing "Salvation Army" procession held not a nuisance. City of Philadelphia v. Braben- der, 201 Pa. 574. An ordinance pro- hibiting the casting of advertise- ments into vestibules of dwelling houses is valid, though newspapers and addressed envelopes are except- ed from its operation. Thompson v. Kimbrough, 23 Tex. Civ. App. 350. A pest house estab- lished within 192 feet of a public school is a nuisance and abatable as such. Kuehn v. City of Milwaukee, 92 Wis. 263. The dumping of garbage of a city into one of the Great Lakes, fifteen miles from shore is not prima facie a nuisance. City of Centerville v. Miller, 57 Iowa, 56. Keeping of a house where loud and unusual noises are permit- ted, held a nuisance. Use of property: Town of Lake View v. Letz, 44 111. 81; Gilbert T. Showerman, 23 Mich. 448. In this case carrying on a steam flouring 137 POLICE POWER. 273 itations constantly referred to in the preceding sections discuss- ing a valid exercise of the police power. It is not necessary to repeat them. The application of the principle seems to be that individual members of society possess the natural right to use mill in the proper manner was not restrained, the court basing its de- cision among other reasons, upon the principle, as stated in the text, that it was not every act of an individual or use of property that constituted it a nuisance, or even the declara- tion of a legislative body to that ef- fect, irrespective of its nature, situa- tion or use, the flouring mill in the case before the court being in the proper business portion of the city. City of Red Wing v. Guptil, 72 Minn. 259. In City of St. Louis v. Russell, 116 Mo. 248, the use of buildings as livery and sales stables declared not a nuisance per se. The main ques- tion involved was the right of the city to delegate its power in this re- spect to one-halt the owners of prop- erty in the block where the livery stable was proposed to be located. Gundlach v. Hamm, 62 Minn. 42; Board of Health v. Jersey City, 55 N. J. Eq. 116; Beetz v. City of Brooklyn, 10 App. Div. (N. Y.) 382. State v. Ray, 131 N. C. 814, 60 L. R. A. 634. Ordinance closing stores at 7:30 P. M. held invalid. Harrington v. Board of Aldermen of Providence, 20 R. I. 233; Miller v. Burch, 32 Tex. 208. Employments: Town of Arkadel- phia v. Clark, 52 Ark. 23; City of St. Louis v. Robinson, 135 Mo. 460. Garbage ordinance construed. City of Kansas v. McAleer, 31 Mo. App. 433. Under a charter giving the city council power by ordinance to define what shall be a nuisance and to prevent or abate them, it has the power to declare a rock crushing machine a nuisance and provide for its abatement. Tanner v. Trustees of Albion, 5 Hill (N. Y.) 121. Bowling alley de- clared a nuisance. Coe v. Schultz, 47 Barb. (N. Y.) 64. The manufac- ture of a preparation of lime held a public nuisance. Laugel v. City of Bushnell, 96 111. App. 618. City and village authorities may lawfully adopt ordinances declaring places where hop ale is kept for sale nui- sances. Condition of property: City Coun- cil of Montgomery v. Hutchinson, 13 Ala. 573. Burden on plaintiff to prove that building taken . down by city was not a nuisance. In Grove v. City of Ft. Wayne, 45 Ind. 429, pro- jecting corners held a nuisance and dangerous. Allison v. City of Rich- mond, 51 Mo. App. 133. In the ab- sence of established fire limits, mu- nicipal authorities have no power to declare as a nuisance and destroy an old frame building filled with inflam- mable rubbish, but only authority to suppress its use for that purpose. Green v. Lake, 60 Miss. 451; Vil- lage of Hempstead v. Ball Elec. Light Co., 9 App. Div. 48, 41 N. Y. Supp. 124. Poles, wires and lamps no longer used for the purpose of lighting declared an abatable nui- sance. Eckhardt v. City of Buffalo, 19 App. Div. (N. Y.) 1; Theilan v. Porter, 82 Tenn. (14 Lea) 622. Bris- tol Door & Lumber Co. v. City of Bristol, 97 Va. 304, holds where ft building is a nuisance only because of the use 10 which It is devoted. Abb. Corp. 18. 274 POWERS. 137 their property and conduct themselves as they see fit, limited and controlled only by the power of the state to determine in its dis- cretion whether such use of property or individual acts results or may result in an injury to the public good. As said, this the building itself cannot be pulled down, but only the wrongful use stopped. The general condition of streets, highways or lands as affecting pub- lic health: State v. Payssan, 47 La. Ann. 1029; Baker v. City of Boston, 29 Mass. (12 Pick.) 184; City of Cambridge v. Munroe, 126 Mass. 496; Rodwell v. City of Newark, 34 N. J. Law, 264. The power confer- red to direct the draining and filling up of city lots whenever such drain- ing shall be necessary to prevent or abate a public nuisance is to be ex- ercised reasonably. Coast Co. v. Borough of Spring Lake, 56 N. J. Eq. 615. The mere erection of a building upon public land does not constitute it an abat- able nuisance. New Jersey R. & Transp. Co. v. Jersey City, 29 N. J. Law (5 Dutch.) 170. Babcock v. City of Buffalo, 56 N. Y. 268. A slip or canal, a public highway, which became unwhole- some by reason of stagnant water and filth was held not abatable as a public nuisance. Chambers' Adm'r v. Ohio Life Ins. & Trust Co., 1 Disn. (Ohio) 327. City of Charleston v. Werner, 38 S. C. 488. The filling of a low lot declared a public nuisance by the board of health, held legal. Regulation of business: State v. Mott, 61 Md. 297. Municipal au- thorities have no power to prohibit the operation of lime kilns within the city limits. Lake v. City of Aberdeen, 57 Miss. 260; People v. Board of Health of New York, 33 Barb. (N. Y.) 344; Schuster v. Met- ropolitan Board of Health, 49 Barb. (N. Y.) 450. Miscellaneous: Haskell v. City of New Bedford, 108 Mass. 208. Mu- nicipal authorities have no right, in the construction of any public im- provement such as a system of drainage or sewage, to create a nui- sance either upon private or public property. Waters v. Townsend, 65 Ark. 613. A house infected with smallpox may be abated as a nuisance injurious to the public health. Ward v. City of Little Rock, 41 Ark. 526. A city cannot enjoin as a nuisance the working of convicts on its streets, since it cannot condemn or abate as such any act which in itself does not come within the legal notion of a nuisance. Harmon v. City of Chi- cago, 110 111. 400; City of Denver v. Mullen, 7 Colo. 345. Poyer v. Village of Des Plaines, 18 111. App. 225; aflirmed in 123 111. 348. An ordinance declaring "all public picnics and open-air dances" within its limits to be a nuisance, held void; the question whether they are so conducted as to become a nuisance being one of fact, not of law. Northwestern Fertilizing Co. v. Village of Hyde Park, 70 111. 634; Everett v. City of Council Bluffs, 46 Iowa, 66. Trees growing in a street or highway do not constitute a nui- sance unless they make an obstruc- tion to travel. Municipality No. 1 v. Wilson. 5 La. Ann. 747; Green v. Lake. 60 137 POLICE POWER. 275 is an inherent and discretionary power on the part of the state but still controlled by the great underlying principle of law that property, personal or vested rights cannot be confiscated nor ar- bitrarily destroyed. The act of the sovereign must have for its real and legitimate end and aim the accomplishment of a govern- mental power, and this must be done by agencies which are uni- form, definite and certain in their operation and application. 198 Miss. 451; City of Kansas v. Mc- Aleer, 31 Mo. App. 433; New Jersey R. & Transp. Co. y. Jersey City, 29 N. J. Law (5 Dutcn.) 170; Nicou- lin v. Lowery, 49 N. J. Law, 391; City of Rochester v. Simpson, 57 Hun (N. Y.) 36; Grossman v. City of Oakland, 30 Or. 478; Town of Davis v. Davis, 40 W. Va. 464. i8 California Reduction Co. v. San- itary Reduction Works (C. C. A.) 126 Fed. 29. The question of the power of a municipal corporation to grant an exclusive privilege for the collec- tion of city garbage fully discussed and many authorities cited. The court holds such contract or privilege val- id. In discussing the police power the court say: "It must be admit- ted that the power of the legislature or municipality under what is com- monly designated as the 'police pow- er of the state,' is not absolute. It does not necessarily follow that ev- ery statute which may be enacted by the legislature, or order passed by a municipality, ostensibly for the purpose of preserving the public health, protecting the public morals, and guarding the public safety, is always to be accepted as a legitimate exercise of the police power of a state. Neither the legislature nor municipality can, under the guise of police regulations, arbitrarily in- vade private property or personal rights; and when such regulations are called in question the test should be whether they have some relation to the public health or public safety, and whether such is, in fact, the end sought to be attained. The means used must be such as are rea- sonably necessary for the accom- plishment of the purpose, and must not be unduly oppressive upon indi- viduals or the public. Every act, order or ordinance is subject to re- view by the courts, and, if the pow- er granted by the constitution is ex- ceeded by the legislature or munici- pality, it is the duty of the courts to declare such act, order, or ordi- nance invalid. Under the guise of protecting the public interests, nei- ther the legislature nor the munici- pality can arbitrarily interfere with private business or impose unusual and unnecessary restrictions upon lawful business and occupations. The police powei cannot be used as a shield for all the ills that legis- lation is heir to, but it must be recognized that the power and pur- poses of laws of this character are necessarily very broad and far- reaching, and, if the power granted does not exceed the limits of the constitution, and clearly comes with- in the legitimate exercise of the po- lice power, it should be sustained. * * * One thing, however, is cer- tain, that everything which, from its nature, and surroundings, is, or is liable to become, a menace to the public health or public safety, Is a proper subject to be dealt with un- der the police power of a state. 276 POWERS. 138 138. Nuisances; their abatement and removal. It is scarcely necessary to say that since public authorities pos- sess the power in some instances to declare what are public nui- sances, and in all cases the power to remove or abate them, upon an official or judicial declaration of their character as such, they have the power to abate and remove all conditions or acts which in their nature, situation or use are public nuisances. 199 The This case comes within that class. The power to make the law neces- sarily carries with it the power to judge of its necessity, expediency, and justice, and, primarily at least, of the reasonableness of the means and methods used to accomplish the end sought to be obtained. Courts have nothing to do with the wis- dom, policy or expediency of the law. The courts are only authorized to deal with the question of the pow- er of the legislature or municipality to pass the laws or orders in ques- tion, and determine whether they are valid, and, if so, to construe their provisions. There their duty ends. These general principles are axiomatic in the jurisprudence of this country." 199 United States v. Holly, 3 Cranch, C. C. 656, Fed. Gas. No. 15,381; Schoen v. City of Atlanta, 97 Ga. 697; Baumgartner v. Hasty, 100 Ind. 575; Walker v. Jameson, 140 Ind. 591. Power to compel the deposit of garbage in certain desig- nated places and its collection by the city's licensed agent held not a confiscation of property. See, also, California Reduction Co. v. Sanitary Reduction Works (C. C. A.) 126 Fed. 29; City of Waverly v. Page, 105 Iowa, 225. In Knauer v. City of Louisville, 20 Ky. L. R. 194, 45 S. W. 510. Ex- cessive fees allowed those removing dead animals held unauthorized; and in Meyer v. Jones, 20 Ky. L. R. 1632, 49 S. W. 809, the same de- cision is made with the qualification that if the ordinance gave the own- er of a dead animal the right to remove it within a prescribed time, the objectionable features would be eliminated. See, also, to same ef- fect, State v. Morris, 47 La. Ann. 1660; Sawyer v. State Board of Health, 125 Mass. 182; Com. v. Cut- ter, 156 Mass. 52; Stone v. Heath, 179 Mass. 385; Sprigg v. Town of Garrett Park, 89 Md. 406; Wreford v. People, 14 Mich. 41; City of Grand Rapids v. De Vries, 123 Mich. 570; City of Red Wing v. Guptil, 72 Minn. 259; City of St. Louis v. Edward Heitzeberg Packing & Pro- vision Co., 141 Mo. 375. Coast Co. v. Borough of Spring Lake, 56 N. J. Eq. 615. Municipal- ity as representative of the public has the right to sue for abatement of nuisance on public property. Hart v. City of Albany, 9 Wend. (N. Y.) 571; Meeker v. Van Rens- selaer, 15 Wend. (N. Y.) 397; Town of Newton v. Lyons, 11 App. Div. 105, 42 N. Y. Supp. 241; Smith v. Irish, 37 App. Div. 220, 55 N. Y. Supp. 837; Cartwright v. City of Cohoes, 39 App. Div. 69, 56 N. Y. Supp. 731. Underwood v. Green, 42 N. Y. 140. A dead animal is not per se a nui- sance or necessarily dangerous to public health. An ordinance direct- 8 138 POLICE POWER. 277 manner in which nuisances may be removed or abated depends largely upon charter and statutory provisions. Corporate char- ters usually contain in detail, provisions controlling the manner in which they may exercise powers granted. The doctrine, as already stated, is well settled that municipal authorities cannot, arbitrarily, declare an act or thing a nuisance and remove and abate the same until there has been a judicial adjudication of ing the removal of "dead animals" held not capable of enforcement if literally construed, otherwise dead animals provided for food could be lawfully removed as nuisances or detrimental to the public health. Eckhardt v. City of Buffalo, 19 App. Div. 1, 46 N. Y. Supp. 204. Here the right to abate a nuisance is held as limited to the removal of that in which the nuisance consists. The right is derived from and based up- on necessity. Wood v. City of Hinton, 47 W. Va. 645. The principle that the public authorities cannot bargain or grant away the right to exercise the police power, followed. Permission from a council to run an engine can not become a vested or continuing right such as to prevent the council from modifying the permit or for- bidding the use of the engine after it becomes a nuisance. City of Marsh- field v. Wisconsin Tel. Co., 102 Wis. 04. A city is held in Her v. Ross, 64 Neb. 710, 57 L. R. A. 895, to have no right to grant, by contract, a monopoly to one individual to enter upon the private premises of the in- habitants of the city and, at their expense, collect and remove innox- ious substances, like ashes, cinders and other things not in themselves nuisances, though, which if allowed to accumulate, would become such. Soon King v. Crowley, 113 U. S. 703; King v. Davenport, 98 111. 305; Ken- nedy v. Phelps, 10 La. Ann. 227; New Orleans Gas Light Co. v. Hart, 40 La. Ann. 474; State v. Heidenhain, 42 La. Ann. 483; Com. v. Thompson, 53 Mass. (12 Mete.) 231, smoking on streets. Carleton v. Rugg, 149 Mass. 550; Hart v. City of Albany, 9 Wend. (N. Y.) 571; Lawton v. Steele, 119 N. Y. 226; Village of Carthage v. Frederick, 122 N. Y. 268; City of Charleston v. Werner, 38 S. C. 488; Theilan v. Porter, 82 Tenn. (14 Lea) 622. See, also, Bush v. City of Dubuque, 69 Iowa, 233. In some jurisdictions, however, it is held, either pursuant to statutory provision or rule of law, that before property constituting a nuisance can be removed as such, notice must be given to the owner or party inter- ested in the same and an opportu- nity given to defend the charge. Amyx v. Taber, 23 Cal. 370; Hart- man v. City of Wilmington, 1 Marv. (Del.) 215, 41 Atl. 74, holds such notice unnecessary where the party interested has his remedy by injunc- tion or a personal liability against the members of the offending board; Roberts v. Ogle, 30 111. 459; Cham- berlain v. City of Litchfield, 56 111. App. 652; Ward v. City of Murphys- boro, 77 111. App. 549; Gosselink v. Campbell, 4 Iowa, 296; Com. v. Bean, 80 Mass. (14 Gray) 52; Com. v. Curtis, 91 Mass. (9 Allen) 266; Watuppa Reservoir Co. v. Macken- zie, 132 Mass. 71; Hall v. Staples, 166 Mass. 399; People v. Bennett, 83 Mich. 457, no notice to remove 273 POWERS. 138 this fact. 200 But this doctrine may not apply where the objec- tionable thing or act is unquestionably a nuisance per se. Mu- nicipal authorities in such cases would clearly have the right to remove or abate the nuisance limited only by the purpose of their organization, namely, the public health, welfare and safe- ty. 201 Where the legislature has granted the public authorities held necessary; Chase v. Middleton, 123 Mich. 647; City of St. Paul v. Clark, 84 Minn. 138; Hellen v. Noe, 25 N. C. (3 Ired.) 493; Rose v. Hardie, 98 N. C. 44; State v. Tweedy, 115 N. C. 704; Heath v. Hall (Tex. Civ. App.) 27 S. W. 160. See, also, 139, post. But see Slessman v. Crozier, 80 Ind. 487, and Collins v. Hatch, 18 Ohio, 523, and see Wil- son v. Beyers, 5 Wash. 303, and Miles v. Chamberlain, 17 Wis. 446, which deny the power upon the failure of its express grant. 200 Bates v. District of Columbia, 1 MacArthur (D. C.) 433; McLean v. Mathews, 7 111. App. 599; Baker v. Bohannan, 69 Iowa, 60; City of Cambridge v. Munroe, 126 Mass. 496; City of St. Louis v. Stern, 3 Mo. App. 48; City of St. Louis v. Steele, 12 Mo. App. 570; Board of Health of Hamilton Tp. v. Neidt (N. J. Eq.) 19 Atl. 318; Board of Health of Vailsburgh v. Inhabitants of East Orange, 53 N. J. Eq. 498; McLaren v. City of New York, 1 Daly (N. Y.) 243; Boom v. City of Utica, 2 Barb. (N. Y.) 104; People v. New York Board of Health, 33 Barb. (N. Y.) 344; Gregory v. City of New York, 40 N. Y. 273; U. S. Illuminating Co. v. Grant, 55 Hun (N. Y.) 222; Gould v. City of Rochester, 105 N. Y. 46. See, also, authorities cited, 137, note 94; Bliss v. Kraus, 16 Ohio St. 55. Proceedings merely colorable and designed under the pretense of removing a nuisance not capable of enforcement. Easby v. City of Phil- adelphia, 67 Pa. 337; City of Charles- ton v. Werner, 38 S. C. 488. 201 Williams v. City Council of Augusta, 4 Ga. 509; City of Ameri- cus v. Mitchell, 79 Ga. 807, 5 S. E. 201; Harmison v. City of Lewiston, 46 111. App. 164; King v. Davenport, 98 111. 305; North Chicago City R. Co. v. Town of Lake View, 105 111. 207. "There are many things which courts without proof will * * * declare nuisances. Such, for in- stance, would be the digging of a pit or the erection of a house or other obstruction in a public high- way." Miller v. City of Valparaiso, 10 Ind. App. 22, 3< N. E. 418. "When a public nuisance creates an immi- nent danger, a necessity for imme- diate action arises. If the public authorities were compelled to give notice and await the action of courts or other bodies, the delay might re- sult in public calamity. The right of self-preservation is one of the first laws of nature and applies to organized societies as well as indi- viduals." Baumgartner v. Hasty, 100 Ind. 575; Joyce v. Woods, 78 Ky. 386; State v. Heidenhain, 42 La. Ann. 483; City of Baltimore v. Rad- ecke, 49 Md. 217; City of St. Louis v. Stern, 3 Mo. App. 48; Metropoli- tan Board of Health v. Heister, 37 N. Y. 661; Nolan v. Town of Frank- lin, 12 Tenn. (4 Yerg.) 163; 1 Am. & Eng. Enc. Law (2d Ed.) Abate- ment of Nuisances. 138 POLICE POWER. 279 the power to abate nuisances, they may, after the legal deter- mination of such a fact, summarily abate or remove the same even by destruction of the property. 202 The creation of a nui- sance may be prevented by proceedings in equity where the usual rules in respect to the granting of injunctions will apply; ordi- narily, a private person is not a proper party complainant when a public nuisance is involved ; where no injury is suffered beyond 202 License Cases, 5 How. (U. S.) 504. Justice McLean in this case said: "The acknowledged police power of a state extends often to the destruction of property. A nui- sance may be abated. Everything prejudicial to the health or morals of a city may be removed." Mugler v. State of Kansas, 123 U. S. 661; Ferguson v. City of Selma, 43 Ala. 398, decayed and dilapidated hous- es; Harvey v. Dewoody, 18 Ark. 252; Baumgartner v. Hasty, 100 Ind. 575; Miller v. Horton, 152 Mass. 540; Ferrenbach v. Turner, 86 Mo. 416. A well located within the limits of a public street. Green v. Lake, 60 Miss. 451; Manhattan Mfg. & Fer- tilizing Co. v. Van Keuren, 23 N. J. Eq. (8 C. E. Green) 255; Newark & S. 0. Horse Car R. Co. v. Hunt, 50 N. J. Law, 308, killing diseased horses; In re Jacobs, 98 N. Y. 98. Sometimes, however, compensation for property destroyed is required, Safford v. Detroit Board of Health, 110 Mich. 81, and other cases hold that only in extreme instances should one be deprived of the use of his property and that in any case there cannot be a wanton or willful destruction. Allison v. City of Richmond, 51 Mo. App. 133; Wag- goner v. City of South Gorin, 88 Mo. App. 25. Neither can property used so as to constitute a nuisance be de- stroyed or forfeited as a punish- ment for the wrong. Lawton v. Steele, 119 N. Y. 226, 239. "But where a public nuisance consists in the location or use of tangible per- sonal property, so as to interfere with or obstruct a public right or regulation, as in the case of the float in the Albany basin (9 Wend. 571), or the nets in the present case, the legislature may, we think, au- thorize its summary abatement by executive agencies without resort to judicial proceedings, and any injury or destruction of the property neces- sarily incident to the exercise of the summary jurisdiction, interferes with no legal right of the owner. But the legislature cannot go furth- er. It cannot decree the destruction or forfeiture of property used so as to constitute a nuisance as a punish- ment of the wrong, nor even, we think, to prevent a future illegal use of the property, it not being a nuisance per se, and appoint officers to execute its mandate. The plain reason is that due process of law requires a hearing and trial before punishment, or before forfeiture of property can be adjudged for the owner's misconduct. Such legisla- tion would be a plain usurpation by the legislature of judicial powers, and under guise of exercising the power of summary abatement of nuisances, the legislature cannot take into its own hands the enforce- ment of the criminal or quasi crim- inal law." POWERS. 138 that shared in common with the general public, 203 unless it clearly appears that he is likely to sustain damages peculiar to himself and in excess of those suffered by the public generally. 204 The usual agency for the regulation or removal of a public nuisance is through a board or department of health acting under author- ity of the corporate charter or the general statutes and accord- ing to the manner designated by law. The mode of action may sometimes be found in ordinances passed by the corporate legis- lative body, or the manner and time of official action may rest in the body itself to be exercised in their sound discretion. The grant of power or authority may be general in its terms either as to its extent or as to the manner or time of its exercise, and again the precise manner of its exercise may be designated by law or ordinance. In common with other powers granted public corporations, they have the right within their charter limitations to enforce regu- lations, rules or orders which they can legally make. 205 If the 203 People v. Truckee Lumber Co., 116 Cal. 397. The fact that a pub- lic nuisance is made punishable by law is not a bar to a suit to enjoin it. Reed v. Cheney, 111 Ind. 387; Brown v. Perkins, 78 Mass. (12 Gray) 89; Clark v. Lake St. Glair & N. U. R. Ice Co., 24 Mich. 508; Fields v. Stokley, 99 Pa. 309; God- sell v. Fleming, 59 Wis. 52. 204 Owens v. State, 52 Ala. 400; Whaley v. Wilson, 112 Ala. 627. A bill in equity can be maintained by a private person to abate a public nuisance, where it can be shown that the complainant had suffered a special damage and where the wrong complained of was continuous. Earp v. Lee, 71 111. 193; Bidinger v. Bish- op, 76 Ind. 244. Douglass v. City of Leavenworth, 6 Kan. App. 96, 49 Pac. 676. A pri- vate person specially injured by a public nuisance has the right to sue for its abatement. Turner v. Holtz- man, 54 Md. 148; Brown v. Perkins. 78 Mass. (12 Gray) 89; Miller v. Forman, 37 N. J. Law, 55; Brown v. De Groff, 50 N. J. Law, 409; Fort. Plain Bridge Co. v. Smith, 30 N. Y. 44; Lawton v. Steele, 119 N. Y. 226; State v. Keeran, 5 R. I. 497. 205 For specific illustrations of a violation of regulations preventing or abating public nuisances see: United States v. The Emperor, 49 Fed. 751; City of Bloomington v. Costello, 65 111. App. 407. A city cannot acquire the prescriptive right to continue a public nuisance. Long v. City of Portland, 151 Ind. 442; Town of Nevada v. Hutchins, 59 Iowa, 506. Under the power to abate a nuisance a municipality has no right to fine a person for ob- structing a street. In City of Knoxville v. Chicago, B. & Q. R. Co., 83 Iowa, 636, the court held that an incorporated town had no authority to pass an ordi- nance imposing a fine for the main- tenance of a nuisance under the general grant of power "to prevent 138 POLICE POWER. 281 power exists to abate, remove or suppress a nuisance, with the necessary authority to execute this power, it impliedly follows that the legal right exists to employ o" 1 use all necessary and proper means in the execution of the powers possessed, express or implied. 206 The question has been raised where a charter injury or annoyance from anything qua, 67 Wis. 343. But the rule is dangerous, offensive or unhealthy." somewhat different in Maryland. Barring v. Com., 63 Ky. (2 Duv.) See Taylor v. City of Cumberland, 95; City of Waycross v. Houk, 113 64 Md. 68; City of Baltimore v. Mar- Ga. 963. The obligation is mandatory riott, 9 Md. 160. upon the city council and mayor to 206 Sanitary Reduction Works of abate any nuisance they might ere- San Francisco v. California Reduc- ate within the city limits, and the tion Co., 94 Fed. 693. A franchise court also held that upon their re- granted for the cremation of city fusal to do so they could be held garbage held controlled by Cal. St. accountable for its maintenance. 1893, p. 288, 1, prescribing the Harper v. City of Milwaukee, 30 manner in which franchises and Wis. 365. A municipal corporation privileges should be granted Uy has no greater right to erect and municipalities; affirmed (C. C. A.) maintain a public nuisance than a 126 Fed. 29, the validity of an ex private individual, and is responsi- elusive franchise for such work de- ble to the same extent. cided in the affirmative with many The weight of authority is to the authorities collated, effect that where the abatement or Alpers v. Brown, 60 Cal. 447. Con- removal of a nuisance is included struing exclusive right to remove within the discretionary or legisla- dead animals within twenty-four tive powers of the public corpora- hours. Walker v. Jameson, 140 Ind. tion, a person injured by the fail- 591, and authorities cited; Martin ure of the corporation to exercise v. Montgomery County Com'rs, 27 the power and remove or abate a Ind. App. 98, 60 N. E. 998. Secre- nuisance has no right of action tary of board of county commis- against the corporation. See City of sioners has no authority to bind the Wilmington v. Vandegrift, 1 Marv. county for an indebtedness incurred (Del.) 5, 25 L. R. A. 538; City of in abating a stagnant pond without Anderson v. East, 117 Ind. 126; authority from the board. James' Adm'r v. City of Harrods- State v. Payssan, 47 La. Ann. burg, 85 Ky. 191; McCormock v. 1029. Removal of offal by contract Patchin, 53 Mo. 33; Saxton v. St. authorized. River Rendering Co. v. Joseph, 60 Mo. 153; Armstrong v. Behr, 77 Mo. 91. The exclusive right Brunswick, 79 Mo. 319; Kiley v. to remove and appropriate animal Kansas City, 87 Mo. 103; Hill v. carcasses found in the city and not Charlotte. 72 N. C. 55; McDade v. killed for food held not capable of Chester, 117 Pa. 414; Hutchinson v. enforcement as to those not a nui- Town of Concord, 41 Vt. 271; sance. Hannibal v. Richards, 82 Mo. Schultz v. City of Milwaukee, 49 . 330; Waggoner v. City of South Gor- Wis. 254; Hubbell v. City of Viro- in, 88 Mo. App. 25; Her v. Ross, 64 282 POWERS. 139 gives to municipal authorities the power to prevent injury or annoyance and abate or suppress nuisances, of the right to dele- gate to some subordinate agency created by them the execution of this power. As a general proposition it can be said that when the statutes give to a certain agency, to be executed by itself, specific powers or duties, such agency possesses the right to delegate the performance of these duties or powers to subor- dinate agencies, unless they involve legislative functions. Or, to state the proposition in another way, the duties prescribed de- volving upon a certain governmental agent are discretionary in their character as to the extent and manner of their exercise, un- less the provisions of the statute are mandatory in thus granting the powers and directing the extent and manner of their exercise when the right of delegation does not exist. If, however, a power is granted in general terms to the governmental agent, a public corporation, such agent usually possesses the power of delegation. 207 If there is any doubt as to the soundness of this principle it can be stated that such doubt does not exist where the character of the duties to be performed are ministerial or clerical. 139. Objections to the removal or abatement of nuisances. As already suggested in a preceding section some jurisdictions Neb. 710, 90 N. W. 869. Removal of dictment maintained against munici- garbage under contract. Balch v. pal corporation for its failure to re- City of Utica, 42 App. Div. 562, 59 move and abate a slaughter house N. Y. Supp. 513. Right of munici- kept to the detriment of the public pality to contract for removal of health where such municipal corpo- garbage and offal construed and au- ration had the power to enact ordi- thorized. City of Philadelphia v. nances necessary to preserve public Provident Life & Trust Co., 132 Pa. health and remove nuisances. 224. Authority exceeded. State v. Llano County v. City of Llano, 9 McCulla, 16 R. I. 196; Harrington v. Tex. Civ. App. 372; Kilvington v. Board of Aldermen of Providence, 20 City of Superior, 83 Wis. 222. Con- R. I. 233; City of Huron v. Bank of tract for the construction and opera- Volga, 8 S. D. 449. Municipal au- tion of crematory for the consump- thorities held in this case as having tion of refuse construed. Dean v. the right in the exercise of the Charlton, 23 Wis. 590, distinguished granted power to invoke the aid of and limited. a court of equity. 207 Gaines v. Waters, 64 Ark. 609; State v. Corporation of Shelby- Welch v. Stowell, 2 Doug. (Mich.) ville, 36 Tenn. (4 Sneed) 176. In- 332. 140 TO INCUR INDEBTEDNESS. 283 hold that to maintain the validity of proceedings having for their purpose the abatement or removal of nuisances, it is necessary that the owners of such property or those interested or affected should have notice of such proceedings or actions that they may have an opportunity to appear and defend themselves or their property against the charges made. 208 The action of boards of health or like bodies in passing upon and determining the char- acter of acts or the condition of property while not conclusive is usually considered of such a discretionary character as will prevent the courts from reviewing it, except in cases of fraud, mistake, or where the official body has clearly exceeded its authority under powers conferred either by the charter of the municipal corporation or the laws or constitution of the state. 209 The time for action by the property owner or individual affected in some cases is also held material, the rule being that until a final order or adjudication is made he may not have the right to contest such action, order or adjudication. 210 III. THE POWER TO INCUB INDEBTEDNESS OTHER THAN BY THE ISSUE OF BONDS. 140. The corporate power to incur indebtedness. Of the essential and characteristic differences between public and private corporations a few have been discussed, some have 208 See 124; Bush v. City of Com. v. Cutter, 156 Mass. 52; Dubuque, 69 Iowa, 233; City of Stone v. Heath, 179 Mass. 385. The Salem v. Eastern R. Co., 98 Mass, superior court has no power under 431; Weil v. Ricord, 24 N. J. Eq. its general equity jurisdiction to re- (10 C. E. Green) 176; Lydecker v. strain a town board of health from Eells, 50 Hun, 606, 3 N. Y. Supp. abating nuisances. 324; People v. Board of Health of Mann v. Willey, 51 App. Div. 169, Seneca Falls, 58 Hun (N. Y.) 595; 64 N. Y. Supp. 589. In an action to Gould v. City of Rochester, 105 N. atate a nuisance by a riparian own- Y. 46; City of Philadelphia v. Dun- er an order of a town board of health gan, 124 Pa. 52; Teass v. City of St. requiring the defendant to discharge Albans, 38 W. Va. 1. sewage from his hotel into a water- 209 Hartman v. City of Wilming- course was held not a defense, ton, 1 Marv. (Del.) 215, 41 Atl. 74. Brown v. District of Narragansett, The action of a municipal board of 21 R. I. 156. health in determining a nuisance 210 Gauld v. City & County of San and ordering its abatement is not Francisco Sup'rs, 122 Cal. 18, 54 Pac, such an adjudication as can be re- 272. viewed on certiorari. 284 POWERS. 140 been suggested, and others have been merely intimated in the preceding sections. As one of the last, fundamental in its char- acter and of controlling influence in doubtful cases involving the incurring of an indebtedness or the creation of an obligation, is the source of funds raised for the payment of these obliga- tions. A private corporation is a private enterprise designed usually for the direct personal pecuniary advantage of the mem- bers. The funds for its promotion and the transaction of the corporate business are derived through contributions from or assessments upon their private means. If by mismanagement, the dishonesty or extravagance of its agents, or the creation of ill-advised or imprudent obligations, a loss is sustained by the corporation, such loss is met by and falls upon the members per- sonally. Entirely different are the conditions and results with public corporations. They are organized as governmental agents and as such share in the administration of governmental affairs and the exercise of public duties resting upon the sovereign. All the expenditures of these corporations in their public capacity are paid by moneys raised through the imposition and collection of taxes upon taxable interests of the community. Those in charge of the expenditures of public money may be irresponsi- ble agents elected by some misguided, temporary, popular feel- ing. Irresponsible, however, or otherwise, there is ever an irre- sistible tendency on the part of public officials, prudent though they may be in the management of their private finances, to ex- pend public moneys lavishly and extravagantly, and unneces- sarily to incur debts or contract obligations intended to advance their personal interests or to perpetuate themselves in power. The expenditures of public moneys must be met by the levying and collection of taxes, the incurring of indebtedness or the crea- tion of obligations, and fall ultimately upon the public purse. Foolish, unwise or extravagant expenditures, and losses result- ing from fraudulent or improvident contracts do not fall except in the most indirect manner, and then only to a limited extent, upon the private means of these irresponsible official agents. It is chiefly this difference in the manner of raising revenue which leads the courts to adopt the strict rule of construction in allow- ing and recognizing the right to incur indebtedness by public corporations. 141 TO INCUR INDEBTEDNESS. 285 141. Must be expressly given; it cannot be implied. Owing to the fact that public corporations are controlled and managed by agents who do not contribute, except in a most in- direct manner and to a slight extent, to the funds for carrying on the corporate work, and the further fact that they are gov- ernmental agents created, organized and designed to fill a want or place entirely different in its character and nature from that which is the basis of the creation of the private corporation, the necessity exists to maintain at all times and upon all questions the strict rule for the construction of corporate powers. A cor- poration is an artificial person possessing such powers as are given to it by the charter of its creation, which, as has been said repeatedly by the supreme court of the United States, is "the measure of its powers." These powers, as stated in a preceding section, 211 may be divided into express and implied, with the further subdivision of implied powers into those absolutely neces- sary to the corporate existence and those proper, necessary or convenient for the carrying on of corporate work. The power to incur indebtedness, except as modified by the doctrine stated in a succeeding section, 212 must be expressly given to a public corporation before a valid debt or obligation can be contracted or incurred. 213 This strict rule is adopted universally by the 211 See 108 and 109, ante. State v. City of Great Falls, 19 Mont. 212 See post, 143. 518. See this case for definition of 213 Brenham v. German-American "loan of credit" as prohibited by Act Bank, 144 U. S. 173; Watson v. City of Cong. 1886, 2 (Comp. St. Mont, of Huron, 97 Fed. 449; Lindsey v. p. 32). Tukey v. City of Omaha, 54 Rottaken, 32 Ark. 619; Ex parte Neb. 370. Sims, 40 Fla. 432. Delegated corpo- Town of Hackettstown v. Swack- rate powers which may result in pub- hamer, 37 N. J. Law, 191. Where the lie burdens should be strictly con- specific grant of power does not ex- strued. ist to borrow money, a note given by City of Galena v. Corwith, 48 111. a corporation for and authorizing 423. A municipality has the implied the loan cannot be enforced even power to fund its debts or provide though the money borrowed has been means for their payment and to is- expended for municipal purposes, sue the necessary evidences thereof. Wells v. Town of Salina, 119 N. Y. Myers v. City of Jeffersonville, 145 280. The power to "raise money" in Ind. 439; Law v. People, 87 111. 385; this case defined as the "power to Lovejoy v. Inhabitants of Foxcroft, raise money by taxation, not by bor- 91 Me. 367; Frost v. Inhabitants of rowing." Belmont, 88 Mass. (6 Allen) 152; La Ross v. Allegheny County, 22 286 POWERS. 141 courts as the only available means for curbing and restraining the dishonesty or extravagance of public officials. The power must exist either in some charter, statutory or constitutional provision ; 214 if necessary to corporate life it may impliedly exist though not expressly given. These provisions are usually con- sidered mandatory in their character, 215 not directory, and if the manner for the incurring of the indebtedness is prescribed, all the steps directed by law to be taken must be, and in the way designated, or lawful authority does not exist. An indebtedness may be incurred through the issue of negotia- ble bonds, a subject to be considered in succeeding sections, 218 where express authority is given for the incurring of a certain debt fixed both in amount and character. Or it may be incurred through the issue of evidences or certificates of indebtedness, assignable or negotiable in their character, but not partaking of the legal character or coupled with the formalities of a negotia- ble bond. 217 Pa. Co. Ct. R. 360. Act of May 15, 1893, rule 40 (p. 83), held invalid. This provided that a mine foreman, in case of injury to a person in or about a mine, should secure medical or surgical treatment and in case of the inability of the injured person to pay that the same should be borne by the county. The court said that a debt by this act could be contract- ed as against a county without its consent or knowledge, something be- yond the powers of the legislature. 214 Coggeshall v. City of Des Moines, 78 Iowa, 235; Frantz v. Ja- cob, 88 Ky. 525; Belknap v. City of Louisville, 99 Ky. 474; Washburn v. Com., 137 Mass. 139; French v. South Arm Tp., 122 Mich. 593; City of Greenville v. Laurent, 75 Miss. 456; Tenth Nat. Bank v. New York City, 4 Hun (N. Y.) 429; Douglass v. Vir- ginia City, 5 Nev. 147; Young v. Town of Henderson, 76 N. C. 420; Black v. Buncombe County Com'rs, 129 N. C. 121; Barr v. City of Phila- delphia, 191 Pa. 438. 215 Dunbar v. Canyon County Com'rs, 6 Idaho, 725, 49 Pac. 409. 216 See post, 169-225. 217 City of Nashville v. Ray, 86 U. S. (19 Wall.) 468; Cothran v. City of Rome, 77 Ga. 582. No power ex- isting to issue change-bills or prom- ises in the similitude of currency. Newgass v. City of New Orleans, 42 La. Ann. 163. The power to issue unconditional obligations to pay money having the attributes of ne- gotiable instruments held as not ex- isting in the absence of expressly stated authority. Halstead v. City of New York, 5 Barb. (N. Y.) 218; De Voss v. City of Richmond, 18 Grat. (Va.) 338; Mills v. Gleason, 11 Wis. 470. A public corporation has the implied power to borrow money for a use expressly authorized by its charter, in the execution of which money will be a necessary means. 143 TO INCUR INDEBTEDNESS. 287 142. To what extent discretionary if expressly given. The courts usually hold that if the power to incur indebted- ness or create an obligation is expressly given in the charter, statutes or constitution, it is to be considered in the issue of bonds not a continuing power but exhausted through their issue to the amount and for the purpose specified. 218 The power to incur other indebtedness for governmental work or usual munic- ipal purposes, if granted, has a different character and is general- ly considered a continuing power, to be exercised however for the purpose and in the manner as provided by law and subject to all constitutional restrictions on indebtedness or obligations legally incurrable by public corporations. The courts further hold in construing this last power, whether expressly given or found in the first class of implied powers, that unless the specific purpose is designated by the authority, the time and place or the expediency of its exercise rests within the sound discretion of the public authorities, so long as the purpose is a "public one," and the amount within constitutional limitations. 219 143. Implied power of the courts to compel the payment of debts. To protect the tax-paying public the courts have adopted and enforced almost universally the strict rule of construction of a corporate right to incur a valid indebtedness. The practical effect of the workings of this rule is to deny to public corpora- tions the legal authority to incur an indebtedness if the question may arise or if there exists any doubt or ambiguity. There will be found, however, on an examination of the authorities, many cases holding that a defect of power may be no defense. For the purpose of enforcing honest obligations, courts have adopted what might be termed the implied power of a public corporation to incur indebtedness other than by ordinance, charter, or statu- tory provision, 220 either considered as withholding the power or 218 Millsaps v. City of Terrell, 60 270. But see Brenham v. German- Fed. 193; Wilson v. City Council of American Bank, 144 U. S. 173, as Florence, 40 S. C. 290, 426. partially reversing the two cases last 219 Rogers v. City of Burlington, 70 cited; Oilman v. City of Sheboygan, U. S. (3 Wall.) 654; Mitchell v. City 2 Black (U. S.) 510. of Burlington, 71 U. S. (4 Wall.) 220 Dodge v. City of Memphis, 51 288 POWERS. 143 regulating the manner in which it shall be exercised. The late Justice Field when upon the supreme bench of the state of Cali- fornia held in an early case that 221 "The doctrine of implied mu- nicipal liability applies to cases where money or other property of a party is received under such circumstances that the general law, independent of express contract, im- poses the obligation upon the city to do justice with re- spect to the same. If the city obtain money of another by mis- Fed. 165. "The authorities show that if negotiable paper is uttered by a municipal corporation without au- thority of law it is void, and a suit cannot be maintained thereon for any purpose. City of Nashville v. Ray, 86 U. S. (19 Wall.) 468; Hitchcock v. City of Galveston, 96 U. S. 341; City of Little Rock v. Merchants' Nat. Bank, 98 U. S. 308; Wall v. Mon- roe County, 103 U. S. 74; Hill v. City of Memphis, 134 U. S. 198; Mer- rill v. Town of Monticello, 138 U. S. 673. They show no doubt that when a municipal corporation sells bonds which are void and receives the mon- ey it may be c rnpelled to restore it in an action for money had and received. So when a municipal cor- poration is authorized to purchase property for any purpose or to con- tract for the erection of public build- ings, or for any other public work, and it enters into such authorized contract, but pays for the property acquired or work done in negotiable securities which it has no express or implied power to issue, it may be compelled to pay for that which it has received in a suit brought for that purpose. In no case, however, does it appear that a suit has been sustained on a void bond, treating it as non-negotiable and as something entirely different from what the par- ties intended it should be. As the court understands the cases, suit must be brought on the implied promise which the law raises to pay the value of that which the munici- pality has received, but has in fact not paid for, because the securities issued in pretended payment were void." City of Denver v. Webber, 15 Colo. App. 511, 63 Pac. 804. The implied power possessed to carry out powers expressly granted in this case and to contract for the employment of spe- cial counsel held valid. F. C. Austin Mfg. Co. v. Smith- field Tp., 21 Ind. App. 609, 52 N. E. 1011. A debt contracted in excess of the statutory limitation cannot be enforced against a township though it has received and used the supplies sold. French v. South Arm Tp., 122 Mich. 593. A township not liable for an indebtedness not created or rati- fied by vote of its electors. See, also Young v. Board of Education of In- dependent School Dist. No. 47, 54 Minn. 385, as holding that the offi- cers of a school district, originally, without authority, cannot bind the district by their action, notwith- standing the fact that it retains the benefits of the transaction. People v. Brennan, 39 Barb. (N. Y.) 522. 221 Argenti v. City of San Fran- cisco, 16 Cal. 25; San Francisco Gas Co. v. City of San Francisco, 9 Cal. 453-470. 143 TO INCUR INDEBTEDNESS. 289 take, or without authority of law, it is her duty to refund it not from any contract entered into by her on the subject, but from the general obligation to do justice which binds all per- sons, whether natural or artificial. If the city obtain other prop- erty which does not belong to her, it is her duty to restore it; or if used by her, to render an equivalent to the true owner, from the like general obligation. In these cases she does not, in fact, make any promise on the subject, but the law, which al- ways intends justice, implies one; and her liability thus arising is said to be a liability on an implied contract, and it is no answer to a claim resting upon a contract of this nature to say that no ordinance has been passed on the subject, or that the liability of the city is void when it exceeds the limitation of $50,000 pre- scribed by the charter. The obligation resting upon her is imposed by the general law, and is independent of any ordinance and the restraining clauses of the charter. It would be indeed a reproach to the law, if the city could retain another's prop- erty because of the want of an ordinance, or withhold another's money because of her own excessive indebtedness. In reference to money or other property, it is not difficult to determine in any particular case whether a liability with respect to the same has attached to the city. The money must have gone into her treasury, or been appropriated by her; and when it is property other than money, it must have been used by her, or be under her control. But with reference to services rendered, the case is different. Their acceptance must be evidenced by ordinance to that effect. Their acceptance by the city with the consequent ob- ligation to pay for them, cannot be asserted in any other way. If not originally authorized, no liability can attach upon any ground of implied contract. The acceptance, upon which alone the obligation to pay could arise, would be wanting." 222 The 222 San Francisco Gas Co. v. City effecting a compromise of the mu- of San Francisco, 9 Cal. 453; Argenti nicipal indebtedness, v. City of San Francisco, 16 Cal. 25; In Boyd v. Mill Creek School Tp., City of Logansport v. Dykeman, 116 124 Ind. 193, the court held that Ind. 15. Art. 13, of the Constitution where a debt was fraudulently in- of Indiana limiting municipal in- curred, even when the goods were debtedness affords no defense to an retained by the municipality, no ac- action upon a contract made by a tion could be maintained to recover city to pay for services rendered in their actual value in a suit upon the Abb. Corp. 19. 290 POWERS. 143 consideration that one of the parties to the transaction is a public corporation should not permit it to rob others or to play fast and loose with contract obligations. A rule of construction other than the strict ought to prevail where a corporation is endeavoring to extend its power to the injury of others, or where it sets up by way of defense to an action brought against it that it has itself been guilty of usurpation of power. 223 And the further fact should not be forgotten that the contract or other obligation is entered into on behalf of the corporate body by agents elected by the people to represent them and bind the cor- poration during official life. If these agents dishonestly or im- prudently, or perhaps illegally, so far as the manner of the act is concerned, place burdens upon their principal, this of itself should be no excuse for the failure to compensate the other party to the transaction for that of value with which he has parted, or to enforce specific contracts. In applying this doctrine of implied power on the part of a public corporation to incur indebtedness it may not be necessary for the courts to openly and arbitrarily override charter or con- stitutional provisions or to hold contrary to the strict rule of construction. In considering the powers exercised by corpora- certificate of indebtedness originally May 2, 1890, to contract debts bind- given. ing upon municipalities afterwards Lovejoy v. Inhabitants of Foxcroft, formed under the law, held not to 91 Me. 367. A town without special exist. The city was nevertheless legislative authority can borrow thereafter bound to pay for the lum- money to pay its lawful debts or ar- her bought or return it, and upon range for a refunding of its indebted- refusal, became liable for conversion, ness. Town of Topsham v. Rogers, 42 Vt. Backman v. Town of Charlestown, 189. A purchase of supplies held 42 N. H. 125. Although a debt was ratified by the officers in whom the originally contracted without author- power to purchase was vested, and ity yet the use of the supplies fur- therefore became a binding obliga- nished constitutes a ratification of tion against the municipality, the original act and the town is Richmond & W. P. Land, N. & I. bound. Co. v. Town of West Point, 94 Va. Bigelow v. Inhabitants of Perth 668. Where the power to purchase Amboy, 25 N. J. Law (1 Dutch.) 297; real estate exists, the implied power Oklahoma City v. T. M. Richardson will follow to make valid non-nego- Lumber Co., 3 Okl. 5. In this case tiable notes or evidences of indebted- the power of provisional govern- nes for the consideration. ments in the Territory of Oklahoma 223 Bank of Chillicothe v. Town of established prior to Act of Congress, Chillicothe, 7 Ohio (pt. 2) 31. 144 TO INCUR INDEBTEDNESS. 291 tioDS either public or private we have the classes already enu- merated. An ultra vires act of a corporation is one beyond or in excess of its legal authority or power. In considering the char- acter of an act whether ultra or intra vires those cases where the power is absolutely lacking or wanting must be distinguished from those cases in which the power may exist for designated purposes, or acts done may be valid if done in a certain manner, but otherwise not. A corporation may be authorized to exercise certain powers or do certain acts to carry out certain designated purposes. If these are exercised or done for a different purpose or in excess of the designated power, the act is not questionable because of a lack of power but on account of the distinction between a want of power and a misuse or abuse of power. Or again a corpora- tion may be authorized to exercise certain powers or do certain acts which are valid if done in a specific manner, but otherwise not. Here we have a distinction and a difference between a want of power and a want of necessary formality in executing a granted power. In applying the principle of the implied power of a public cor- poration to incur indebtedness, advantage is taken by the courts of the distinctions suggested in the preceding paragraph, and a legal reason, in addition to the moral one, may support a right- eous decision. 144. Manner of its exercise; body authorized. A public corporation may be possessed of the power to incur indebtedness derived from lawful authority, the indebtedness however will be valid and enforceable only when contracted by the corporation in a specified manner and by the official body or agent of the corporation designated by law to act in a particular instance and bind the corporation by such action. There exist always the implied limitation that the indebtedness must be in- curred for a public purpose which will be considered in later sec- tions, and usually constitutional limitations upon the amount and the particular purpose for which it can be legally contracted. 224 224 F. C. Austin Mfg. Co. v. Smith- of Melrose, 155 Mass. 587; Tinkel v. field Tp.. 21 Ind. App. 609, 52 N. E. Griffin, 26 Mont. 426, 68 Pac. 859; 1011; Grady v. Fruit, 111 Ky. 100, Read v. Atlantic City, 49 N. J. Law, 63 S. W. 283; Brown v. Inhabitants 558; Jamaica Sav. Bank v. City of 292 POWERS. 144 In this section the official body authorized to bind the corporation will be considered and the questions of its implied power to set in motion within its discretion, action resulting in the contraction of a legal debt, or whether the power can be exercised only pursuant to direct statutory or other authority. It is self-evident that public corporations of all the different grades are represented in particular functions they possess or powers they may exercise by representative bodies or officials. A municipal corporation proper may have as one of its subordinate departments a school or park board, police or fire department. In matters of public education, the school board represents and is authorized to en- gage in contracts or incur debts binding upon its principal. It is clearly without the province or the authority of a school board to incur indebtedness binding upon the municipality in support of or for the benefit of the fire or police departments. Indebted- ness, therefore, to be valid, if the authority to incur exists, must be contracted by the particular official body representing the public corporation in the exercise of certain of its duties. 225 New York, 61 App. Div. 464, 70 N. Y. Supp. 967. 225 Seward County Com'rs v. Aetna Life Ins. Co., 90 Fed. 222; Fitzgerald v. Walker, 55 Ark. 148; Milliard v. Bunker, 68 Ark. 340; Waldo v. Town of Portland, 33 Conn. 363; Whitney v. City of New Haven, 58 Conn. 450; Barnard v. Sangamon County, 190 [11. 116; Smith v. Shawnee County Com'rs, 21 Kan. 669; Harrison Coun- ty Ct. v. Smith's Adm'r, 54 Ky. (15 B. Mon.) 155; Capmartin v. Police Jury, 23 La. Ann. 190. In Louisiana "police juries" so-called, have usually the power to contract debts obliga- tory on a parish, if in the same ordinance, they provide means for payment. Talbott v. Parish of Iberville, 24 La. Ann. 135; Citizens' Bank v. Town of Jennings, 107 La. 547. The court said "that debts contracted (by a po- lice jury) in violation of the above provision were stricken with nullity and incapable of judicial enforce- ment." Gray v. Bourgeois, 107 La. 671, 32 So. 42; Shea v. Town of Milford, 145 Mass. 528, 14 N. E. 764. A town committee having charge of erection of a building was held to have pow- er to act by agreement of the mem- bers separately obtained and that they need not act in session as an or- ganized body. Holderness v. Baker, 44 N. H. 414; Redmon v. Chacey, 7 N. D. 231, 73 N. W. 1081; City of Philadelphia v. Flanigen, 47 Pa. 21. The power of expending money for public purposes by municipal corporations was lodg- ed, in the legislative and not execu- tive authorities, the city council therefore, and not the heads of de- partments, are empowered to author- ize public expenditures. Barr v. City of Philadelphia, 191 Pa. 438; Jones v. Town of Lind, 79 Wis. 64. See, also, the following cases construing 144 TO INCUR INDEBTEDNESS. 293 It is also generally held that the implied power does not exist on the part of public officials to contract indebtedness of their own motion. Especially is this true where they do not possess original powers of administration. 226 It is equally true as to the character of the indebtedness they may incur. Possibly tho power does exist on their part to contract a temporary in- debtedness to carry on what might be termed the ordinary running or operating expenses of the corporation, 227 but the the powers of the special officials named with respect to the incurring of indebtedness. Town or township officials: Town of Bloomfield v. Charter Oak Bank, 121 U. S. 121; Ladd v. Town of Franklin, 37 Conn. 53; White v. Town of Stamford, 37 Conn. 578; Farrel v. Town of Derby, 58 Conn. 234; Dibble v. Town of New Haven, 56 Conn. 199; Town of Bruce v. Dickey, 116 111. 527; Reed v. Town of Orleans, 1 Ind. App. 25; Boyd v. Mill Creek School Tp., 114 Ind. 210; Bluffton Corp. v. Studabaker, 106 Ind. 129; Dennett v. Nevers, 7 Me. (7 Greenl.) 399; Willey v. Inhabit- ants of Greenfield, 30 Me. 452; Vose v. Inhabitants of Frankfort, 64 Me. 229; Brown v. Inhabitants of Winter- port, 79 Me. 305; Hosier v. Higgins Tp. Board, 45 Mich. 340; Wrought Iron Bridge Co. v. Jasper Tp., 68 Mich. 441; Boyce v. Auditor Gener- al, 90 Mich. 314; Evans v. Town of Stanton, 23 Minn. 368; Gifford v. Town of White Plains, 25 Hun (N. Y.) 606; Clark v. Saratoga County Sup'rs, 107 N. Y. 553; Maneval v. Jackson Tp., 141 Pa. 426; Clay v. Wright, 44 Vt. 538; Judevine v. Town of Hardwick, 49 Vt. 180; Dav- enport v. Town of Johnson, 49 Vt. 403; Town of Remington v. Ward, 78 Wis. 539. Municipal officers: Allen v. In- tendant & Councilmen of La Fayette, 89 Ala. 641; Fitzgerald v. Walker, 55 Ark. 148; In re City of Cedar Rap- ids, 85 Iowa, 39; Turner v. Brigan- tine Borough, 54 N. J. Law, 476; In re Village of Plattsburgh, 157 N. Y. 78; Lynchburg & D. R. Co. v. Person County Com'rs, 109 N. C. 159. County officials: Sullivan v. State, 121 Ind. 342; Vigo County Com'rs v. Weeks, 130 Ind. 162; Butler v. Sulli- van County, 108 Mo. 630; Hamilton County Com'rs v. Webb, 47 Kan. 104. School officials: School Directors v. Sippy, 54 111. 287; Clark v. School Directors, 78 111. 474; Adams v. State, 82 111. 132; Folsom v. School Directors, 91 111. 402; Noble School Furniture Co. v. Washington School Tp., 4 Ind. App. 270; Johnson School Tp. v. Citizens' Bank, 81 Ind. 515; Miller v. White River School Tp., 101 Ind. 503; Union School Tp. v. First Nat. Bank of Crawfordsville, 102 Ind. 464; State v. Hawes, 112 Ind. 323; Boyd v. Mill Creek School Tp., 114 Ind. 210; Litten v. Wright School Tp., 127 Ind. 81. 226 police Jury v. Britton, 82 U. S. (15 Wall.) 566; People v. Albany County Sup'rs, 28 How. Pr. (N. Y.) 22; Sterling v. Parish of West Feli- ciana, 26 La. Ann. 59. 227 white v. Town of Decatur, 119 Ala. 476. Ordinarily municipal ex- penditures are within the sound dis- cretion of the municipal authorities. In re Contracting of State Debt by 294 POWERS. 144 power does not exist to issue negotiable bonds payable to bearer or other evidences of indebtedness negotiable in their charac- ter. 228 The manner of the incurring of indebtedness may .also be established by the charter or the general statutes of the state, and if the legal authority requires the performance of certain ministerial acts by public officials the indebtedness may be held invalid if contracted without the performance of such acts; 2 -' 9 or possibly the electors of the corporation, during some part of the proceedings, having for their purpose the incurring of the indebtedness, must pass upon the question, and if indebtedness is incurred without the submission to the electors at the proper time the same legal result will follow. 2 * Loan, 21 Colo. 399; Barrett v. City of East St. Louis, 89 111. 175; Musgrove v. Kennell, 23 N. J. Eq. (8 C. E. Green) 75. Township committee has no power to borrow money on the faith of the township or authorize this to be done. However, if the members of the township committee can induce third parties to loan money necessary for proper town- ship purposes, if this debt was sub- sequently adopted by the town, it then becomes a valid indebtedness. In Van Dusen v. State, 11 S. D. 318, indebtedness for fuel furnished an agricultural college held valid. At the time of its contraction the indebtedness was within the legal limit. Under a subsequent misap- propriation of funds appropriated for specific purposes, the debt in question, with other subsequently in- curred obligations, exceeded the lim- it. The misappropriation cannot af- fect the legality of the debt in ques- tion. Hull v. Ames, 26 Wash. 272. A city can legally incur indebtedness in excess of the constitutional limit where such indebtedness is used in payment of the salaries of its city officers, the court holding that such salaries were necessary expenses in- curred in maintaining the existence of a municipality. 228 Breaux v. Iberville Parish, 23 La. Ann. 232; Marionneaux v. Police Jury of Iberville, 23 La. Ann. 251; Cheeney v. Inhabitants of Brookfield, 60 Mo. 53; Stewart v. Otoe County, 2 Neb. 177. 229 Higgins v. City of San Diego Water Co., 118 Cal. 524, 45 Pac. 824; Pollok v. City of San Diego, 118 Cal. 593; People v. Chicago & A. R. Co., Ib4 111. 51; Shorten v. Green County, 22 Ky. L. R. 1010, 59 S. W. 522; Hubbard v. Woodsum, 87 Me. 88; Hall v. Anne Arundel County Com'rs, 94 Md. 282; Sanborn v. Rice County Com'rs, 9 Minn. 273 (Gil. 258.) An act of the legislature of the state of Minnesota requiring cer- tain ministerial acts held in contra- vention of the state constitution as being an attempt to confer judicial power on the commissioners named in the act. Shuttuck v. Smith, 6 N. D. 56. 230 Dyer v. Erwin, 106 Ga. 845; Strodtman v. Menard County, 56 111. App. 120; Gray v. Mount, 45 Iowa, 591. A proposition for the outlay of money submitted to the electors 145 TO INCUR INDEBTEDNESS. 295 145. The power limited by the purpose or use of funds to b* raised. Limitations upon the power of a public corporation to incur indebtedness may exist either as an inherent, implied, or funda- mental principle of law or as a written and express restriction found in the charter of the corporation, the statutes, or the con- stitution of the state. There is found, as an implied and inherent limitation on the power of every public corporation to incur a debt, the one, namely, that the purpose for which it may be contracted or the uses to which the funds realized shall be put must be public in their character. This limitation impliedly and inherently exists, based upon differences between a public and private corporation suggested in a preceding section. 231 A public corporation is an agency of the government, an aid to the must be so worded as to give them a real choice. Grady v. Pruitt, 23 Ky. L. R. 506, 63 S. W. 283; Tinkel v. Griffin, 26 Mont. 426, 68 Pac. 859. Where a majority of the electors voting at elections is necessary to contract valid indebtedness, it can be created under the favorable action of a ma- jority of those voting upon that par- ticular question, although such num- oer was not a majority of all the votes cast at the election. Galloway v. Jenkins, 63 N. C. 147; Theis v. Washita County Com rs, 9 Okl. 643; Shaw v. Statler, 74 Cal. 258; Gavin v. City of Atlanta, 86 Ga. 132; Broadfoot v. City of Fayette- ville, 128 N. C. 529; Appeal of Lu- burg (Pa.) 17 Atl. 245; Keller v. City of Scranton, 202 Pa. 586; Met- calfe v. City of Seattle, 1 Wash. St. 297; State v. Snodgrass, 1 Wash. St. 305. 231 Hackett v. City of Ottawa, 99 U. S. 86. The development of the nat- ural resources of a city for manu- facturing purposes held to be with- in a public and corporate purpose. Town of Bloomington v. Lillard, Z9 111. App. 616. See 140. People v. Chicago & A. R. Co., 19* 111. 51. Town meeting not author- ized to raise money under provisions of the revised statutes "for town purposes" without defining such pur- poses and affirmatively showing they are such as authorized by law. Frantz v. Jacob, 88 Ky. 525; Fuller v. Inhabitants of Groton, 77 Mass. (11 Gray) 340; Rexroth v. Ames, 55 N. J. Law, 509, 26 Atl. 787. The power of a township to raise money for "incidental purposes" was denied, without specifying such purposes. The court held that un- der such general terms the township might raise funds to be used for purposes not authorized. Thrift v. Town of Elizabeth City Com'rs, 122 N. C. 31, 30 S. E. 349; Municipal Security Co. v. Baker County, 33 Or. 338, 54 Pac. 174. Even where expenditures are public in their character, the amount of in- debtedness incurrable is limited by* constitutional provisions. 296 POWERS. 145 sovereign in carrying out its purposes and performing duties which are public in their nature and intended to protect and benefit society at large, the community rather than the individ- ual. If the individual is benefited by the establishment and maintenance of an organized government it is not because of the purpose to directly accomplish that result but because the individual indirectly and as a member of a community or so- ciety shares in the benefits and advantages of that government. To the government belongs the exercise of certain powers and the performance of certain duties. There can be no question of the character of certain of these powers and duties. The ex- ercise of the police power, the maintenance of government, the construction of public buildings, the provision for a system of public education, and others, will be recognized clearly as gov- ernmental duties. 232 Other acts will be clearly recognized as not 232 Chief Justice Black in the case of Sharpless v. City of Philadelphia, 21 Pa. 147, speaking of the pur- poses for which taxes could be law- fully levied, has given a compre- hensive statement of public purpos- es. He said, as quoted in Simonton Mun. Bonds, 35 : "Taxes may be im- posed for roads of all kinds, canals, and bridges, that there may be fa- cilities for transportation of freight and for travel; for public schools and colleges, that the people may be educated; for public libraries, that their means of improvement may be increased; for the poor, the dumb, the blind, the insane, lest they suf- fer from want; for the police of the state, in regulations for the pres- ervation of health or the detection of crime; for courts of law, that individual rights may be protected and enforced, and that crime, when detected, may receive its fitting pun- ishment; for the preservation of peace and the protection of the coun- try from foreign enemies; to aid, en- courage and stimulate commerce, de- mestic and foreign, by the estab- lishment of mints, postage system and maintaining navies to keep open the highways of nations; to encour- age citizens in the defense of their country, by suitable rewards and mementoes for past services in times of war, or by bounties for enlist- ment for future services; and for the promotion of arts and sciences." In Simonton, Mun. Bonds, 36, is found an interesting discussion of a public purpose. He says in part: "While no definition can be given that will exactly distinguish those purposes which are public from those that are private, it may safe- ly be said that the purpose is pub- lic when all the inhabitants are in- terested in the work, as public schools, where the children of any inhabitant may attend; libraries, be- cause for the education of the peo- ple, and open to all alike, water- works controlled by the municipal- ity, because every resident may have water; almshouses and insane in- stitutions, because open to all who are unfortunate enough to require their aid or care, likewise hospitals TO INCUR INDEBTEDNESS. 297 belonging to this category, and there are still other powers and duties which it is difficult sometimes to assign to either class and which lie along the dividing line between the two. It is clearly beyond the power of a public corporation or the state itself to appropriate public property for private purposes or to expend public moneys for the personal advantage and benefit of private individuals or personal and private enterprises, such funds raised through a system of public taxation designed for the benefit and advantage of the public at large, the legality of the system based upon the idea that the use of the proceeds shall be public. 233 for same reason; * * * police and fire departments, as well as the necessary buildings to house and localize them, for the protection and convenience of the public; courts to enforce the law; and so one can enumerate all the known public con- veniences and necessities to be found in a city, county and town; but in all the public works or purposes it will be found that the municipality has the care and supervision of the same, and that the humblest citizen is entitled to the same enjoyment, or same care and protection and in the same respect, as the most in- fluential. The distinguishing feature between a private and a public work or purpose is that, in the former case, the supervision and gains are vested in, and received by, but a few of the inhabitants, and some- times by nonresidents of the munici- pality, while in a public work or purpose the care and supervision are lodged in public officers, and the gains, if any, belong to the municipality." 233 "The legislature," said Chief Justice Black in Sharpless v. City of Philadelphia, 21 Pa. 147, 59 Am. Dec. 759, "has no constitutional right to create a public debt, or to lay a tax, or to authorize any municipal corporation to do it, in order to raise funds for a mere private pur- pose. No such authority passed to the general assembly by the general grant of legislative power. This would not be legislation. Taxation is a mode of raising revenue for public purposes. When it is prosti- tuted to objects in no way connect- ed with the public interests or wel- fare, it ceases to be taxation and becomes plunder." Burroughs, Pub. Secur. p. 388. "In those cases where the purpose is declared to be public, such as highways, state-houses and other public buildings, railroads, canals, schools, and drainage for health, the benefit is direct to all the people of the state. The construction of such works, or the doing of these acts, is a duty of the state to all the people of the state. The pur- pose, the object, is governmental, although incidentally individuals may be benefited; while in those cases where the purpose is declared to be private, the object of the act was the benefit of individuals, al- though incidentally the public was benefited. When the purpose is a public or governmental one, the benefit to which the citizen is en- titled is one that he may claim for himself he can lay his hand upon it himself. For instance, the 298 POWERS. 145 The character of certain uses for which public moneys may be expended is established beyond question as well as certain pur- poses to which they shall not be put. It is impossible to give an exact definition of public purpose. Whether the purpose is a public one for the expenditure of moneys is a question exclu- sively for the courts to determine. Legislative bodies cannot be the judges of their own infractions of fundamental law. 234 right to use the highways or rail- ways, or to use the public schools. He asserts this privilege for him- self. He is not dependent on the action of a private owner of such in- stitutions, who may grant or with- hold the privilege claimed. In the case of the various corporations, when the purpose was said to be private, the privilege of using the lumber mills and other factories was one that might be granted or refused by the owner, and for a refusal there was no remedy." 234 Burroughs, Pub. Secur. pp. 367, 368; 20 Am. & Eng. Enc. Law (2d Ed.) p. 1084, gives in a negative way a good definition of a public purpose. "The promotion of the interests of individuals, either in respect of property or of business, although it may result incidentally in the advancement of the public welfare, is in its character essen- tially a private and not a public object. However certain and great the resulting good to the general public, it does not by reason of its comparative importance, cease to be incidental. The incidental advan- tage to the public which results from the promotion of private interests and the prosperity of private enter- prises or business does not justify their aid by the use of public money, raised by taxation, or for which taxation may become necessary." Citizens' Sav. & Loan Ass'n v. City of Topeka, 87 U. S. (20 Wall.) 664. Justice Miller in delivering the opinion of the court said: "To lay with one hand the power of the government on the property of the citizen and with the other bestow it upon favored individuals, to aid private enterprises and build up pri- vate fortunes, is none the less a rob- bery because it is done under forms of law and is called taxation. This is not legislation; it is a decree un- der legislative forms." He also said: "And in deciding whether, in the given case, the object for which the taxes are assessed falls on the one side or the other of this line (between public or private purpose), they must be governed mainly by the course and usage of the govern- ment, the objects for which taxes have been customarily and by long course of legislation levied, what objects or purposes have been con- sidered necessary to the support and for the proper use of the govern- ment, whether state or municipal. Whatever lawfully pertains to this, and is sanctioned by time and the acquiescence of the people, may well be held to belong to the public use, and proper for the maintenance of good government, though this may not be the only criterion of right- ful taxation." Weismer v. Village of Douglas, 64 N. Y. 91, where Justice Folger dis- tinguishes a public from a private purpose. "It may also be conceded that this is a public purpose from 146 TO INCUR INDEBTEDNESS. 299 The term can best be defined by giving concrete illustrations of expenditures which courts have authorized as having such a character. 146. The construction of buildings a public purpose. The cases hold without dissent that public moneys expended in the construction of buildings for use by government officials or departments in the performance of their public or govern- mental duties is a proper and legal expenditure for a "public purpose," and if such buildings are constructed in a lawful man- ner and upon legal authority, the indebtedness incurred by the corporation is a valid one and capable of enforcement. The power to construct public buildings is considered an implied one not only as necessary to corporate existence but also as a proper and convenient means for carrying into effect governmental pow- ers expressly granted. School houses, 235 town halls,- 36 court the attainment of which will flow some benefit or convenience to the public, whether of the whole com- monwealth or of a circumscribed community. In this latter case, however, the benefit or convenience must be direct and immediate from the purpose, and not collateral, re- mote or consequential. It must be a benefit or convenience which each citizen of the community affected may lay his own hand to in his own right, and take unto his own use at his own option, upon the same reasonable terms and conditions as any other citizen thereof. He may not be made to depend for it on the spontaneous action of others, or to receive it in uncertain degree or manner or roundabout way, or hampered with discriminating dis- tinctions and conditions." 235 Allen v. Intendant & Council- men of Lafayette. 89 Ala. 641; Tur- ney v. Town of Bridgeport, 55 Conn. 412. The Court here holds that though the committee might deem it necessary to expend more than was voted, they would not be al- lowed to do so. "We think it clear beyond discussion that when a town, by legal vote, limits the amount of an appropriation for a particular and specified purpose, and by the same vote appoints a committee to carry that purpose into effect, such committee has no implied authority to involve the town in any addi- tional expense whatever." City of Cartersville v. Baker, 73 Ga. 686. The power to build a school house exists where authority is conferred "to aid in the building up of such schools." Hensly Tp. v. People, 84 111. 544; Marks v. Pur- due University, 37 Ind. 155; Bick- nell v. Widner School Tp., 73 Ind. 501; Grady v. Landram, 23 Ky. L. R. 506, 63 S. W. 284. See 11 L. R. A. 123; Merrick v. Inhabitants of Am- herst, 94 Mass. (12 Allen) 500; Gor- don v. Cornes, 47 N. Y. 613; East Tennessee University v. City of Knoxville, 65 Tenn. (6 Baxt.) 166. 300 POWERS. 146 houses and jails, 237 hospitals, poorhouses, public markets, 238 state 238 and county buildings, may be properly erected through the expenditure of public funds. ass people v. Harris, 4 Cal. 9; benefit of third parties. Such ob- Greeley v. People, 60 111. 19; Wood- jects are foreign to the purpose for bury v. Inhabitants of Hamilton, 23 which counties are organized, and, Mass. (6 Pick.) 101; Friend v. Gil- if permitted, would open the door to bert, 108 Mass. 408; Foster v. City entanglements and abuses against of Worcester, 164 Mass. 419; Clarke which the public should be, and is, v. Inhabitants of Town of Brook- by law protected." Citing Williams field, 81 Mo. 503; Bates v. Bassett, v. Lash, 8 Minn. 496 (Gil. 441); 60 Vt. 530. James v. Wilder, 25 Minn. 305; Hef- 237 Pauly Jail-Bldg. & Mfg. Co. v. ferlin v. Chambers, 16 Mont. 349, Kearney County Com'rs, 68 Fed. 40 Pac. 787; Roach v. O'Dell, 33 Hun 171; Lewis v. Lofley, 92 Ga. 804; (N. Y.) 320; Black v. Buncombe Jackson County v. Rendleman, 100 County Com'rs, 129 N. C. 121, 39 111. 379; Rock v. Rinehart, 88 Iowa, S. E. 818. 37; City of Leavenworth v. Norton, 2is See authorities cited in notes 1 Kan. 432; State v. Marion County 23 Am. St. Rep. 581-584; 25 Am. Com'rs, 21 Kan. 419; Johnson v. St. Rep. 887, and 85 Am. Dec. 286- Wilson County Com'rs, 34 Kan. 670; 289; Smith v. City of Newbern, 70 Callam v. City of Saginaw, 50 Mich. 7. N. C. 14; Wade v. City of New Bern, Borough of Henderson v. Sibley 77 N. C. 460. See, also, cases cited County, 28 Minn. 515. The Court under 134. here say, "The corporate powers of 239 state v. McGraw, 13 Wash. 311; counties are confined to such pow- Shannon v. City of Huron, 9 S. D. ers as are expressly granted, * * * 356, 69 N. W. 598. A city has no and the county commissioners are authority to incur indebtedness to confined to the duties and powers pay the expenses of a campaign directly conferred, or in like man- having for its purpose its selection ner clearly implied. The general as the capital of the state. The power of a county to make contracts court say: "Plaintiffs, the capital is confined to the property and busi- commission, and all other persons ness of the county; and the uses to dealing with the officers of the mu- which a county may put real es- nicipality had notice and were char- tate as to provide a suitable court ged with a knowledge of the law, house, jail, offices and other neces- under the limitations and restric- sary buildings. It may not erect tions of which no liability could be buildings for the use of other mu- created or debt incurred against the nicipal corporations, or for any third city of Huron for printing capital party. It may sell and convey real campaign literature and the war- estate not necessary to its use, but rants when issued were void in toto. it may not improve it for the ac- * * * As a municipal corporation commodation of third parties, nor is forbidden by law, and has no enter into contracts by which it vested right or inherent power to shall bind itself to hold it for the contract debts and issue evidences 146a TO INCUR INDEBTEDNESS. 301 146a. Illustrations of a "public purpose" continued; the sup- port of the poor ; water supply. It is clearly within the province of a government to care for and support its indigent, infirm, or the suffering. 2 * It is also clearly within the limits of a governmental or a public pur- pose to care for, maintain and protect the public health and safety. Modern authorities assume that one of the agencies most conducive to the maintenance and protection of the pub- lic health is a system by which a sufficient supply of pure and wholesome water may be furnished to a community. The expenditures of public moneys therefore for the establishment and maintenance of a system of water supply is now consid- ered legal, such use or purpose being a public one and with- in the power of the corporation. 241 That a certain expend- thereof to advance the interests of individuals, no taxpayer of the city of Huron can be compelled to con- tribute money for the purpose of promoting a capital campaign how- ever much the inhabitants of the city might be personally benefited." 2*0 People v. Emigration Com'rs, 15 How. Pr. (N. Y.) 177; Trumbull v. Moss, 28 Conn. 253; Town of Marl- borough v. Town of Chatham, 50 Conn. 554; La Salle County Sup'rs v. Town of South Ottawa, 12 111. 480; Seagraves v. City of Alton, 13 111. 366; Perry County v. City of De Quoin, 99 111. 479; Inhabitants of Granville v. Inhabitants of South- hampton, 138 Mass. 256; Grossman v. New Bedford Inst. for Savings, 160 Mass. 503; City of Moultonbor- ough v. City of Tuftonborough, 43 N. H. 316; In re McFarlan, 2 Johns. Ch. (N. Y.) 440; Goodale v. Law- rence, 88 N. Y. 513; Overseers of Milton v. Overseers of Williamsport, 9 -Pa. 46; Overseers of Poor of Nip- penose Tp. v. Overseers of Poor of Jersey Shore, 48 Pa. 402; Hamlin County v. Clark County, 1 S. D. 131. 2*1 NPW Orleans Water-Works Co. v. Rivers, 115 U. S. 674; National foundry & Pipe Works v. Oconto Water Co., 52 Fed. 29; Andrews v. National Foundry & Pipe Works (C. C. A.) 61 Fed. 782; Fergus Falls Water Co. v. City of Fergus Falls, 65 Fed. 586; City of Helena v. Mills, 94 Fed. 916. A contract obligation for the supply of water furnished for mu- nicipal purposes when in excess of the constitutional limit of indebted- ness cannot be enforced, the court holding that such contract obliga- tion is a debt within the meaning of the limitation. Little Falls Elec. & Water Co. v. City of Little Falls, 102 Fed. 663; Anoka Water-Works, Elec. Light & P. Co. v. City of Anoka, 109 Fed. 580; City of Ft. Madison v. Ft. Madison Water Co., 110 Fed. 901; affirmed (C. C. A.) 114 Fed. 292; Fidelity Trust & Guaranty Co. v. Fowler Water Co., 113 Fed. 560; Stein v. City of Mobile, 24 Ala. 591; Wells v. City of Atlanta, 43 Ga. 67; Ford v. City of Cartersville, 84 Ga. 213; Murphy v. City of Waycross, 90 Ga. 36; City Council of Dawson v. Dawson Water-Works Co.. 106 Ga. 302 POWERS. 146b iture may have for its purpose the furnishing of a water sup- ply does not necessarily make it valid. A constitutional or charter limitation upon the amount of municipal indebtedness controls always independent of the purpose for which such in- debtedness is incurred. Purpose or use does not in all cases determine its validity. The authorities referred to in this section and the notes are considered abstractly without regard to such limitations. Some of the cases cited, it will be found upon an examination, hold the indebtedness invalid not because of its purpose but on account of a constitutional limitation. 146b. "Public purposes" continued; light. In a case in the supreme court of the United States the court held in construing an exclusive contract for the use of the streets 696; Button v. City of Aurora, 114 111. 138; Culbertson v. City of Ful- ton, 127 111. 30; Prince v. City of Quincy, 128 111. 443; City of Val- paraiso v. Gardner, 97 Ind. 1; Schneck v. City of Jeffersonville, 152 Ind. 204; Grant v. City of Daven- port, 36 Iowa, 396; Burlington Water Co. v. Woodward, 49 Iowa, 61; City of Clinton v. Walliker, 98 Iowa, 655; Allen v. City of Davenport, 107 Iowa, 90; Burlington Water Works Co. v. City of Burlington, 43 Kan. 725; State v. Caffery, 49 La. Ann. 1748; Smith v. Inhabitants of Ded- ham, 144 Mass. 177; Hale v. Hough- ton, 8 Mich. 458; Niles Waterworks v. City of Niles, 59 Mich. 311; Farr v. City of Grand Rapids, 112 Mich. 99; Monroe Water Co. v. Heath, 115 Mich. 277; Menominee Water Co. v. City of Menominee, 124 Mich. 386, 83 N. W. 127; Ludington Water Sup- ply Co. v. City of Ludington, 119 Mich. 480, 78 N. W. 558; Davenport r. Kleinschmidt, 6 Mont. 502; State v. City of Great Falls, 19 Mont. 518; State v. City of Helena, 24 Mont. 521, 63 Pac. 99; State v. Rune, 24 Nev. 251, 52 Pac. 274; Hackensack Water Co. v. City of Hoboken, 51 N. J. Law, 220; Mittag v. Borough of Park Ridge, 61 N. J. Law, 151; Stroud v. Consumers' Water Co., 56 N. J. Law, 422, 28 Atl. 578; Corn- stock v. City of Syracuse, 5 N. Y. Supp. 874; City of Rochester v. Quintard, 136 N. Y. 221; Town of Klamath Falls v. Sachs, 35 Or. 325, 57 Pac. 329; Peabody v. Westerly Water Works, 20 R. I. 176, 37 Atl. 807; Cleveland v. City of Spartan- burg, 54 S. C. 83; Miles v. Benton Tp., 11 S. D. 450, 78 N. W. 1004; Pearl v. Town of Nashville, 18 Tenn. (10 Yerg.) 179; City of Austin v. McCall, 95 Tex. 565, 68 S. W. 791; City of Palestine v. Royall, 16 Tex. Civ. App. 36; Thornburgh v. City of Tyler, 16 Tex. Civ. App. 439; Schultze v. Township Committee of Manches- ter, 61 N. J. Law, 513; City of Spring- ville v. Fullmer, 7 Utah, 450; Peo- ple v. City Council of Salt Lake City, 23 Utah, 13, 64 Pac. 460; Lucia v. Village of Montpelier, 60 Vt. 537, 15 Atl. 321; Winston v. City of Spokane, 12 Wash. 524; Attorney 146b TO INCUR INDEBTEDNESS. 303 in supplying gas to the city and people of New Orleans that the proper lighting of public highways and streets was a valid exer- cise of the police power, having for its purpose the protection of the lives and property 'of the people of the community, a govern- mental purpose. Properly lighted streets and public places give a certain degree of immunity from attack by thieves or burglars at night. A public corporation consequently is justified in attend- ing to this so it is claimed, a governmental duty, and supplying, either through a system of its own or through an exclusive con- tract, or otherwise, with private 242 corporations or individuals, ar- tificial light for lighting public places when necessary. Public moneys therefore when used for such purpose are properly and legally expended, and debts incurred or obligations created will be enforceable as against a corporation unless other considerations en- ter into the determination of their validity. 243 The statement made General v. City of Eau Claire, 37 Wis. 400; Ellinwood v. Reedsburg, 91 Wis. 131. See, also, 30 Am. St. Rep. 399-401. 242 New Orleans Gas Co. v. Louis- iana Light Co., 115 U. S. 650; Ham- ilton Gas-Light & Coke Co. v. City of Hamilton, 146 U. S. 258; affirm- ing 37 Fed. 832; Thompson-Houston Elec. Co. v. City of Newton, 42 Fed. 723; Jacksonville Elec. Light Co. v. City of Jacksonville, 36 Fla. 229; Nelson v. City of La Porte, 33 Ind. 258; City of Crawfordsville v. Bra- den, 130 Ind. 149; State v. City of Hiawatha, 53 Kan. 477; City of Newport v. Newport Light Co., 84 Ky. 166; Pontchartrain R. Co. v. Lafayette & P. R. Co., 10 La. Ann. 741; Fee v. New Orleans Gas Light Co., 35 La. Ann. 413; City of Bos- ton v. Richardson, 95 Mass. (13 Al- len) 146; Opinion of the Justices, 150 Mass. 592; Spaulding v. Inhab- itants of Peabody, 153 Mass. 129; City of Detroit v. Hosmer, 79 Mich. 384; Christensen v. City of Fremont, 45 Neb. 160; State v. Cincinnati Gas Light & Coke Co., 18 Ohio St. 268; State v. City of Hamilton, 47 Ohio St. 52; Wade v. Borough of Oak- mont, 165 Pa. 479. But see Village of Ladd v. Jones, 61 111. App. 584. 243 Louisville Gas Co. v. Citizens' Gas Co., 115 U. S. 683; Hammond v. City of San Leandro, 135 Cal. 460, 67 Pac. 692; City of Denver v. Hub- bard, 17 Colo. App. 346, 68 Pac. 993; Lott v. City of Waycross, 84 Ga. 681; Coggeshall v. City of Des Moines, 78 Iowa, 235; Windsor v. City of Des Moines, 110 Iowa, 175, 81 N. W. 476; Gordon v. Winchester Bldg. & Accum. Fund Ass'n, 75 Ky. (12 Bush) 110; Laycock v. City of Baton Rouge, 35 La. Ann. 475; Lebanon Light & Mag- netic Water Co. v. City of Lebanon, 163 Mo. 246, 63 S. W. 809; Hequem- bourg v. City of Dunkirk, 49 Hun (N. Y.) 550; Clark v. City of Columbus. 23 Wkly. Law Bui. (Ohio) 289; Town of Klamath Falls v. Sachs, 35 Or. 325; Wheeler v. City of Philadel- phia, 77 Pa. 338. A gas plant is property belonging to the city not for speculation but for the comfort of all the people, and debts contract- ed in its construction and operation 304 POWERS. 147a in the preceding paragraph in respect to the legality of cer- tain indebtedness applies also to that incurred for this purpose. An Iowa case held that the necessity for an electric light plant constituted no excuse or justification for the construction of such a plant when this would result in an increase of the municipal indebtedness beyond the constitutional limitation. The purpose of the expenditure is not attacked, but the contemplated amount. 244 147. The construction of internal improvements. (a) In general. The purposes enumerated in preceding sec- tions come clearly within that class or use denominated "a public purpose" or "a public use," and there is no doubt as to the au- thority of the public corporation to incur indebtedness or expend the public moneys therefor. Considering other uses or purposes not so clearly within those authorized by law or about which there can be doubt, works of internal improvement, as they are termed, may constitute a use to the construction of which public moneys can be properly appropriated, 245 although some cases hold squarely to the contrary doctrine. 246 The protection of the public health is clearly a must therefore be paid by the mu- public purpose justifying the ex- nicipality. penditure of public moneys. The 244 Windsor v. City of Des Moines, court say: "We are aware of no 110 Iowa, 175, 81 N. W. 476. "But constitutional provision which pre- where the contract is for the erec- eludes the legislature from authoriz- tion of electric light plants, or for ing either of these classes of corpo- any other improvement, and the rations to expend their revenues in time of payment is postponed to a supplying their inhabitants with wa- later date, and no special levy for ter for all the uses named in the the purpose of erecting such works law under consideration. * * * is authorized, the rule seems to be The maintaining of a public water well settled that the sums to be- tank, as provided for in the act, is, come due in the future must all be in itself, a sufficient benefit to all taken into account in estimating the the taxpayers of a civil township to amount of the existing indebtedness warrant the construction of an ar- of the municipality." Citing Cul- tesian well at the public expense." bertson v. City of Fulton, 127 111. 30; -* Rippe v. Becker, 56 Minn. 100. French v. City of Burlington, 42 A law providing for the purchase of Iowa, 614. a site and the erection of a state 2 Miles v. Benton Tp., 11 S. D. elevator or warehouse for the pub- 450. A public artesian well held a lie storage of grain held a violation 147a TO INCUR INDEBTEDNESS. 305 governmental power and duty. To execute this power and per- form this duty all usual, necessary, convenient and proper means may be employed. To construct or aid in the construction of works of internal improvement is not so clearly a governmental power or duty. The character and purpose of a work of internal improvement depends largely upon the determination by public officials that the enterprise in question is not only one of the usual, proper, necessary and convenient means for performing or exercising a governmental duty or power, but that it is itself such a power or duty. It certainly is unsafe to leave without restraint such a far-reaching and conclusive determination to pub- lic officials. The opportunity for the insidious and unconscious influence of self-interest is too apparent. 247 There are certain works of internal improvement in regard to the construction or the granting of aid in the construction of which the law is well established, namely, the establishment of of a constitutional provision that the "state shall never contract any debt for works of internal improvement or be a party in carrying on such works." See, also, Traver v. Mer- rick County Com'rs, 14 Neb. 327; Leavenworth County Com'rs v. Mil- ler, 7 Kan. 493. In Rippe v. Becker, 56 Minn. 100, the Court said through Justice Mitchell: "It would admit not only of building grain elevators, but also of engaging in schemes of drainage; irrigation; developing wa- ter powers, building public grist mills * * * and other like enter- prises almost without limit. Cer- tainly to engage in such enterprises as these at the expense of the tax- payers of the state is quite as much within the mischiefs aimed at by the constitution as to engage in the con- struction of highways for commerce. * * * The present constitution was not framed on any such lines." See, also, People v. State Treasurer, 23 Mich. 499. 2*7 Mitchell v. Burlington & Mt. P. Plank-road Co., 72 U. S. (4 Wall.) 270; Lamed v. Burlington & Mt. P. Plank-road Co., 72 U. S. (4 Wall.) 27o, Brauns v. Town of Peoria, 82 111. 11; Prince v. Crocker, 166 Mass. 347, 44 N. E. 446. The Boston sub- way. Attorney General v. Pingree, 120 Mich. 550, 79 N. W. 814. Where the constitution prohibits the state from being a party to or interested in any work in internal improvement, it should not authorize a municipality to undertake or become interested in that which in itself it was pro- hibited from doing. Walker v. City of Cincinnati, 21 Ohio St. 14; Maneval v. Jackson Tp., 141 Pa. 426, 21 Atl. 672; Brooke v. City of Philadelphia, 162 Pa. 123. Expense of elevating tracks may be assumed by a city where this re- sulted in abolishing grade crossings. Note, however, in this case, the dis- senting opinion of Mr. Chief Justice Sterrett, and see, also, Bank for Savings v. Grace, 102 N. Y. 313. Abb. Corp. 20. 306 POWERS. 147a public highways, and canals, 248 the improvement of navigable waters, 249 or the digging of ditches, having for their purpose the draining of large tracts of low and swampy land. The construc- tion of the last is justified by the double reason, the removal of a nuisance detrimental to the public health and the addition to the tillable and arable lands of the state. The erection of bridges 250 has also been held a purpose for which public moneys can be properly used. Judge Cooley, in his History of Michigan, published in 1885, says: "Our state had, once before, a bit of experience of the 2*8 Mitchell v. Burlington & Mt. P. Plank-road Co., 72 U. S. (4 Wall.) 270; Mygatt v. Green Bay, 1 Biss. 292, Fed. Gas. No. 9,998; Haag v. Rio Grande County Com'rs, 34 Fed. 778; City of Wetumpka v. Winter, 29 Ala. 651; City of Mt. Vernon v Hovey, 52 Ind. 563; Clay v. Nich- olas County Ct., 67 Ky. (4 Busnj 154; Foreman v. Murphy, 70 Ky. (7 Bush) 304; People v. City of Brook- lyn, 4 N. Y. (4 Comst.) 420; Town of Newark v. Elliott, 5 Ohio St. 113; Com. v. McWiliiams, 11 Pa, 61; Ham- mett v. City of Philadelphia, 65 Pa. 146; State v. Wirt County Ct., 37 W. Va. 808; Sedgwick, St. Const. Law, p. 446 et seq.; Lancey v. King Coun- ty, 15 Wash. 9. Objection was made to canal aid because the constitution provided that "no county shall here- after give any money or property or loan its money or credit to, or in aid of any individual, association, company or corporation." The court held, however, that a work of this kind did not come within the mean- ing and purview of this provision. See, also, 8 Am. Rep. 24, and In re Petition of U. S., 96 N. Y. 227, and cases therein cited. 249 Taylor v. Newberne Com'rs. 55 N. C. (2 Jones' Eq.) 141; Goddin v. Crump, 8 Leigh (Va.) 120; Knowl- ton v. Rock County Sup'rs, 9 Wis. 410; Soens v. City of Racine, 10 Wis. 271; Brodhead v. City of Milwaukee, 19 Wis. 624; Curtis' Adm'r v. Whip- pie, 24 Wis. 350. Whiting v. Sheboygan & F. R. Co., 25 Wis. 216, as establishing the doc- trine in Wisconsin that in no case does "a municipal corporation pos- sess the power to engage in works of internal improvement, such as the construction of railroads, canals, harbors and the like, unless that power is specifically granted by the legislature." In this case, an at- tempt was made to show a ratifica- tion by the legislature of the con- tract, but the court held that such an act alone was not sufficient to make the contract obligatory upon the corporation of Milwaukee. 250 Simpson v. Lauderdale County, 56 Ala. 64; Dingley v. City of Bos- ton, 100 Mass. 544; Egyptian Levee Co. v. Hardin, 27 Mo. 495; DeClerq v. Hager, 12 Neb. 185; People v. Tompkins, 64 N. Y. 53; People v. Meach, 14 Abb. Pr. (N. S.; N. Y.) 429; People v. Hudson Highway Com'rs, 7 Wend. (N. Y.) 474; Gar- linghouse v. Jacobs, 29 N. Y. 297; Smith v. Wright, 27 Barb. (N. Y.) 621; Gray v. City of Brooklyn, 7 - Hun (N. Y.) 632; Waupaca County v. Town of Matteson, 79 Wis. 67. 147b TO INCUR INDEBTEDNESS. 307 evils of government connecting itself with works of internal im- provement. In a time of inflation and imagined prosperity the state had contracted a large debt for the construction of a system of railroads and the people were oppressed with heavy taxation in consequence. Moreover, for a portion of this debt, they had not received what they bargained for and they did not recognize their legal or moral obligation to pay it. The good name and fame of the state suffered in consequence. The result of it all was that a settled conviction fastened itself upon the minds of our people that works of internal improvement should be private enterprises; that it was not within the proper province of gov- ernment to connect itself with their construction or management, and that our imperative state policy demanded that no more burdens be imposed upon the people by state authority for any such purpose. Under this conviction they incorporated in the constitution of 1850 several provisions expressly prohibiting the state from being a party to, or engage in carrying on, any work of internal improvement." (b) Railway aid. For many years the granting of public aid in the construction of railways owned and operated by private individuals or corporations was not permitted, the purpose not being, as the courts then held, a "public one." The doctrine now is clearly established that such aid is valid, and the voting of public moneys, unless restrained by constitutional provisions, to aid in the construction of railways, is an appropriation for a public use. This holding is based upon the principle that a rail- way is a quasi public highway, that one of the duties of the state is to furnish means of safe and rapid communication within its limits, and having the power, even considered by some in the light of a duty, to do this directly, it can accomplish the same result indirectly through private agencies. The tendency of pub- lic corporations to incur unwise debts and to make lavish expendi- tures is too great without giving public officials the least latitude and the power is one of doubtful expediency. The doctrine, however, is thoroughly established by a long line of decisions, all of which it is unnecessary to cite. A few will be given in the notes. 251 251 Amey v. Allegheny City, 24 Moberly, 103 U. S. 580. Dissenting How. (U. S.) 364; Callaway County opinion by Mr. Justice Harlan; v. Foster, 93 U. S. 567; Jarrolt v. Pleasant Tp. v. Aetna Life Ins. Co., 308 POWERS. 148 148. Express limitations on power to incur indebtedness. It is an inherent and implied limitation upon the power of a public corporation to incur indebtedness that to be valid it must 138 U. S. 67; reversing 62 Fed. 718; French v. Teschemaker, 24 Gal. 518; Quincy, M. & P. R. Co. r. Morris, 84 111. 410; City of New Or- leans v. Graihle, 9 La. Ann. 561; City of St. Louis v. Alexander, 23 Mo. 483; Wood v. Town of Oxford, 97 N. C. 227. But see Taylor v. Ross County Com'rs, 23 Ohio St. 22; Brown v. Philadelphia County Com'rs, 21 Pa. 37. See, also, au- thorities collected and cited in Dil- lon, Mun. Corp. (4th Ed.) p. 224. In section 153 of that able work the author says: "The most noted of extraordinary powers conferred upon municipal and public corporations is the authority to aid in the con- struction of railways by subscrib- ing to their stock, issuing negotiable bonds as a means of paying their subscription, and taxing the inhab- itants or Che property within their limits to pay the indebtedness there- by incurred. Legislation of this kind belongs to a period compar- atively recent, and has been more or less resorted to at times, by almost every state in the Union. As it is an author's duty to state what the law is rather than what, in his judg- ment, it ought to be, he is con- strained to admit that a long and al- most unbroken line of judicial de- cisions in the courts of most of the states has established the principle that, in the absence of special re- strictive constitutional provisions, it is competent for the legislature to authorize a municipal or public cor- poration to aid, in the manner above indicated, the construction of rail- ways running near, or to, or through its territory. * Notwith- standing the opinion of so many learned and eminent judges, there remain serious doubts as to the soundness of the principle, viewed simply as one of constitutional law. Regarded in the light of its effects, however, there is little hesitation in affirming that this invention to aid the enterprises of private cor- porations has proved itself baneful in the last degree." In Iowa decisions will be found both for and against the legality of railway aid. In Michigan the state courts have uniformly ruled against the validity of such a contribution on the part of public corporations and in Wisconsin the recent course of judicial decision has been against the granting of aid. Stokes v. Scott County, 10 Iowa, 166; McClure v. Owen, 26 Iowa, 243. Contra, Stew- art v. Polk County Sup'rs, 30 Iowa, 9; Renwick v. Davenport & N. W. R. Co., 47 Iowa, 511; People v. Sa- lem Tp., 20 Mich. 452. But see Gelpcke v. City of Dubuque, 68 U. S. (1 Wall.) 175; Butz v. City of Muscatine, 75 U. S. (8 Wall.) 575; Burlington & M. R. Co. v. County of Otoe, 83 U. S. (16 Wall.) 667, and Pine Grove Tp. v. Talcott, 86 U. S. (19 Wall.) 666, where the su- preme court of the United States in an able and exhaustive opinion held an act of the legislature of Michi- gan authorizing the issue of railroad aid bonds constitutional and valid thus reversing in effect the decisions of the supreme court of Michigan. Whiting v. Sheboygan & F. R. Co., 25 Wis. 167, where Chief Justic 148 TO INCUR INDEBTEDNESS. 309 be, as has been stated in the preceding sections, incurred for "a public purpose. ' ' The state cannot arbitrarily under the guise of an ostensible public purpose, appropriate moneys for the benefit or advantage of private individuals and private enterprises. As stated in a Pennsylvania case, "Taxation is a mode of raising revenue for public purposes. When it is prostituted to objects in no way connected with the public interests or welfare, it ceases to be taxation and becomes plunder." 262 The declaration by the legislature that certain purposes or uses are public is not conclusive. The purpose must be public in its nature or the use for which public funds are appropriated must be such before a legal expenditure will exist. In the notes will be found references to cases passing upon the validity of indebtedness incurred for specific purposes, the legal objections raised being those touching the character of the pur- pose of the expenditures of such moneys. 253 Dixon said: "There are very many enterprises and occupations of a pri- vate character connected with trade, commerce and manufactures which are quite as much to our advantage as a people and quite as necessary and indispensable to our growth and prosperity as a nation, as the build- ing and operating of railroads, and some are even more so. * * * The incidental public benefits or ad- vantages, though in a general sense to be considered, do not, therefore, constitute in the sense of the law, a public use which will justify the interference of the government." The constitutionality of the same act considered in the Whiting Case, was before the supreme court of the United States in Olcott v. Fond du Lac Sup'rs, 83 U. S. (16 Wall.) 678, and its validity sustained. See, also, Long v. City of New London, 5 Fed. 559; Smith v. City of Fond du Lac, 8 Fed. 289; Foster v. City of Ke- nosha, 12 Wis. 688; Hasbrouck v. City of Milwaukee, 13 Wis. 42, and Fisk v. City of Kenosha, 26 Wis. 23. 252 Sharpless v. City of Philadel- phia, 21 Pa. 147, 59 Am. Dec. 759. 253 in Burlington Tp. v. Beasley, 94 U. b. 310, where the statute au- thorized municipalities to issue bonds in aid of works of internal improvement, the court held that the term "internal improvement" in- cluded grist mills whether run by water or steam. See, also, as hold- ing to the same doctrine, Brewer v. Merrick County Com'rs, 15 Neb. 180; State v. Clay County, 20 Neb. 452; George v. Cleveland, 53 Neb. 716, 74 N. W. 266, and Vail v. City of Attica, 8 Kan. App. 668, 57 Pac. 137; City of Ottawa v. Carey, 108 U. S. 110. Bonds issued by way of donation to an individual to aid him in developing the water power of the city were held, in this case, void in the hands of one taking them with the knowledge of such fact, al- though the city charter authorized the borrowing of money and the is- suing of bonds to be "expended in developing the natural advantages of the city for manufacturing pur- 310 POWERS. 148 There are certain enterprises which while private in their organization, yet in their nature or the transaction of their busi- ness partake of a public character to such an extent that if the poses." Cole v. City of La Grange, 113 U. S. 1. Aid not authorized to a private corporation operating a rolling mill. Commercial Nat. Bank v. City of lola, 2 Dill. 353, Fed. Gas. No. 3,061. See, also, Citizens' Sav. & Loan Ass'n v. City of Topeka, 87 U. S. (20 Wall.) 655; City of Park- ersburg v. Brown, 106 U. S. 487; Allen v. Inhabitants of Jay, 60 Me. 124; Lowell v. City of Boston, 111 Mass. 454; Weismer v. Village of Douglas, 64 N. Y. 91; In re Eureka Basin Warehouse & Mfg. Co., 96 N. Y. 42; Bissell v. City of Kankakee, 64 111. 249; English v. People, 96 111. 566. But see the opinion in Hackett v. City of Ottawa, 99 U. S. 86. Central Branch U. P. R. Co. v. Smith, 23 Kan. 745. Purchasers of bonds in this case held bound to take notice of the purpose for which the corporation receiving aid was organized. Chicago, K. & N. R. Co. v. City of Manhattan, 45 Kan. 419; People's Nat. Bank v. City of Pomona, 48 Kan. 55. Kansas Laws 1887, c. 114, authorizing counties and cities of second and third classes to issue bonds and subscribe to the capital stock of companies organized for the purpose of mining coal construed. See, also, as interpreting the same statutes: City of Geneseo v. Gen- eseo Natural Gas, Coal, Oil, Salt & Mineral Co., 55 Kan. 358, 40 Pac. G55; Luques v. Inhabitants of Dres- den, 77 Me. 186. Public moneys not authorized to be used in the care of a private cemetery. In Lowell v. City of Boston, 111 Mass. 463, the question of a public purpose is thoroughly and fully dis- cussed and many cases cited. The question as decided by the court arose upon the validity of a pro- posed issue of bonds by the city of Boston to be sold for the purpose of raising a fund for loaning on mortgage to landowners whcse build- ings had been burned in an ex- tensive fire. The court said that the general result might indeed re- motely involve a public benefit, but that the fund intended to be raised was to be appropriated distributive- ly to numerous individuals, each one of which would be independent of any relation to the others or to any other purpose except that of indi- vidual enterprise in matters of pri- vate business, and that the power of municipal taxation could not be employed for such purposes. In Adams v. Jackson Elec. R., Light & Power Co., 78 Miss. 887, 30 So. 58, money which had become for- feited to a city, it was held, could not be appropriated in aid of a rail- way or other corporation or associa- tion under Const. 183, prohibiting the granting of aid to private enter- prises. Getchell v. Benton, 30 Neb. 870; French v. City of Millville, 66 N. J. Law, 392, 49 Atl. 465. The fact that a city is a member of a mutual in- surance company does not bring such act within the prohibition of Const, art. 1, par. 19, prohibiting cities from loaning their credit to any corporation. Comstock v. City of Syracuse, 129 N. Y. 643; Sun Printing & Pub. Ass'n v. City of 148 TO INCUR INDEBTEDNESS. 311 law specifically names them as capable of receiving public aid, indebtedness incurred in pursuance of such authority will be held valid and enforceable. This principle as already stated applies to the granting by public corporations of aid in the construction of railway lines through their territory or such adjoining terri- tory ns to result in substantial benefit or advantage to them.*** The character of the industry carried on by mills in frontier dis- tricts has also been held to partake of this public nature so as to authorize, under a law declaring such enterprises to be public, the incurring of valid indebtedness either through the issue of bonds or otherwise. 255 If authority to aid private enterprise already exists, subsequent legislation cannot affect the validity of debts legally incurred prior to such legislation. 258 The limitations discussed in this and preceding sections exist not only as implied and inherent principles but may also as New York, 152 N. Y. 257. The ex- penditures of public moneys in the construction of a street railway where private capital had failed to construct a necessary line of com- munication, was held not to be in contravention of Const. N. Y. art. 8, 10, prohibiting the city from giv- ing any money or property, or loan- ing its money or credit to or in aid of any individual association or cor- poration. New York Laws 1891, c. 4, and amendments, popularly known as Rapid Transit Acts, were con- strued and held valid in this case. Sweet v. City of Syracuse, 60 Hun (N. Y.) 28; Tocci v. City of New York, 73 Hun, 46, 25 N. Y. Supp. 1089. In Kissell v. Village of Co- lumbus Grove, 27 Wkly. Law Bui. (Ohio) 183, the issue of bonds for the purpose of aiding and encourag- ing manufacturing establishments, under Act of Gen. Assem. April 23, 1891 (88 Ohio Laws, p. 367), was held to conflict with Const, art. 8, 6, prohibiting the granting of aid or loaning of credit by municipal corporations to any private corpora- tion. Wilkesbarre City Hospital v. Luzerne County, 84 Pa. 55; Mauldin v. City Council of Greenville, 33 S. C. 1; Ohio Valley Iron Works v. Town of Moundsville, 11 W. Va. 1. Donations to a manufacturing and mining enterprise held prohibited by the provisions of the Constitution limiting expenditures of public mon- eys to a municipal or public pur- pose. See, also, Olcott v. Fond du Lac County Sup'rs, 5 Chicago Leg. N. 397. 254 See 147. 255 Burlington Tp. v. Beasley, 94 U. S. 310, following Citizens' Sav. & Loan Ass'n v. City of Topeka, 87 U. S. (20 Wall.) 661; Blair v. Cum- ing County, 111 U. S. 363; Leaven- worth County Com'rs v. Miller, 7 Kan. 479. sse Scotland County v. Thomas, 94 U. S. 682; County of Galloway v. Foster, 93 U. S. 567; Slack v. Mays- ville & L. R. Co., 52 Ky. (13 B. Mon.) 1; State v. Sullivan County, 51 Mo. 522; State v. Greene County, 54 Mo. 540. 312 POWERS. 148 charter, statutory or constitutional provisions. 237 It is quite cus- tomary at this day. These provisions usually prohibit the ex- penditure of public moneys for any purpose except "a public one" without, however, giving a more specific definition of this term. The limitations may apply to the amount only of such indebtedness without reference to the purpose of the ex- penditure. They are construed liberally in their application and extended to include grades or classes of public corporations not enumerated but possessing similar characteristics. 268 The con- stitutional prohibition that the general assembly shall not author- ize "any county, city or town" to become a stockholder in or loan its credit to any corporation it has been held includes a "township" as well as the organization named. 258 25T Weldin v. City of Wilmington, 3 Penn. (Del.) 472, 51 All. 157. The city of Wilmington by its charter was prohibited from issuing bonds exceeding a certain amount. In this case the court held that the legis- lature could pass an act which would in effect relieve the city from the limitation prescribed by the charter and give to it the right to increase its funded indebtedness beyond the charter limit. Martin v. Tyler, 4 N. D. 278; Red- mon v. Chacey, 7 N. D. 231, 73 N. W. 1081. The issue of bonds to pay the cost of locating and construct- ing a drain was held not "a loan of the credit of the county" so as to violate Const. 185, where the bonds were to be paid from a sink- ing fund created from the proceeds of special assessments upon the property in municipalities benefited by the construction of such drain. The Court say: "These warrants are issued, not by the county com- missioners, but by the drain com- missioners a board whose author- ity in that line is limited to dealing with the drainage fund, and that cannot bind the county generally. Moreover, these warrants are ex- pressly drawn against the drainage fund. That a warrant so drawn creates no general liability against the municipality is well settled." Citing Burroughs, Pub. Secur. 635 et seq., and 15 Am. & Eng. Enc. Law (1st Ed.) 1214 et seq. Foster v. City of Kenosha, 12 Wis. 616. But see Fisk v. City of Ke- nosha, 26 Wis. 23. If the authority to incur indebtedness is derived from a legislative act, such provi- sions are void if there is a failure to provide a limitation upon the amount of such indebtedness. See, also, summary of state constitu- tions respecting aid to railway com- panies and to private enterprises, collected in Simonton, Mun. Bonds, 262; and Burroughs, Pub. Secur. c. XIV. ass Walsh v. City of Augusta, 67 Ga. 293. Ga. Const, art. 7, 7, lim- iting debts legally incurrable by mu- nicipal corporations, it was held in this case, applied as well to cities reaching the 7% limit specified as well as to those that do not. 259 Harshman v. Bates County, 92 U. S. 569. 149 TO INCUR INDEBTEDNESS. 313 149. Same subject continued. In the preceding sections has been considered the power of a public corporation to incur indebtedness for proper municipal purposes other than by an issue of bonds. There has been sug- gested the implied limitation upon such power arising from the character of the purpose or use funds so derived are put, with a reference to further limitations found in the general statutes, the constitution of the state, or in the charter of the particu- lar organization. 260 These restrictions have been found neces- sary because of the mania possessed apparently by all public corporations to incur debts without regard to the means or source of payment. 261 To restrict and limit the capacity for mu- nicipal extravagance, the courts have upheld their constitution- 260 Gibbons v. Mobile & G. N. R. Co., 36 Ala. 410; Soule v. McKibben, 6 Cal. 142; Rice v. City of Keokuk, 15 Iowa, 579; Wallace v. City of San Jose, 29 Cal. 181; Wyncoop v. Congregational Soc., 10 Iowa, 185; Dunnovan v. Green, 57 111. 63; Foot v. Salem, 96 Mass. (14 Allen) 87. 261 A compilation from the latest statistics published by the Commer- cial and Financial Chronicle shows the net debt of public corporations in the United States, including mu- nicipalities, to approximate over two billion of dollars. The same jour- nal, the most conservative and best of its kind published, is authority for the statement that during the year 1901 the increase in state and municipal indebtedness, excluding refunding bonds, was $132,567,232; for 1902, $130,536,874; 1903 $139,047,- 254; and for 1904, $238,905,467. From statistics published by the same journal the following estimate is made of the increase for the years named in state and municipal in- debtedness excluding refunding bonds: 1892, $75,441,164; 1893, $69,- 679,146; 1894, $105,458,603; 1n by Sanborn, J., it is said that "bonds which are issued to fund a valid indebtedness neither create any debt nor increase the debt of the municipality which issues them. They merely change the form of an existing indebtedness." Citing Lake County Com'rs v. Platt, 79 Fed. 567; E. H. Rollins & Sons v. Gunnison County Com'rs, 80 Fed. 692; City of Los Angeles v. Teed, 112 Cal. 319, 44 Pac. 580; Powell v. City of Madison, 107 Ind. 110; Mari- on County Com'rs v. Harvey County Com'rs, 26 Kan. 181, 201; In re State Bonds (Me.) 18 Atl. 291; Hotch- kiss v. Marion, 12 Mont. 218; Miller v. School Dist. No. 3, 5 Wyo. 217, 39 Pac. 879. And the court further say: "Another objection to these bonds is that the city of Huron was without power to issue them. The position is not entitled to extended consideration, because the power granted by the charter of the city of Huron is plenary. It was general, not special. It was not limited to specified purposes, but was 'to bor- row money, and for that purpose to issue bonds of the city in such de- nominations, for such length of time, not to exceed twenty years, and bearing such rate of interest, not to exceed seven per cent, per annum, as the city council may deem best.' The whole is greater than any of its parts, and includes them all. The power to borrow money and issue bonds for all mu- nicipal purposes includes the pow- er to do so to pay or refund the indebtedness of the municipal- ity. Portland Sav. Bank v. City of Evansville, 25 Fed. 389; Simonton, Mun. Bonds, 126; City of Quincy v. Warfield, 25 111. 317; Morris T. Taylor, 31 Or. 62, 49 Pac. 660; City 173 ISSUANCE OF SECURITIES. 339 tract the indebtedness was not sufficiently broad to authorize the issue of bonds. If, however, the original bonded debt was legally of Galena v. Corwith, 48 111. 423; Village of Hyde Park v. Ingalls, 87 111. 13; Rogan v. City of Water-town, 30 Wis. 259, 268. There is nothing in the cases of Police Jury v. Brit- ton, 82 U. S. (15 Wall.) 566; Mer- rill v. Monticello, 138 U. S. 673, 684; Heins v. Lincoln, 102 Iowa, 69, 71 N. W. 189, 191; City of New Or- leans v. Clark, 95 U. S. 644; City of Waxahachie v. Brown, 67 Tex. 519; State v. Board of Liquidation of City Debt, 40 La. Ann. 398; Mid- dleport v. Aetna Life Ins. Co., 82 111. 565; Bogart v. Lamotte Tp., 79 Mich. 294, 44 N. W. 612; Brenham v. German American Bank, 144 U S. 173, 182; Coffin v. Kearney Coun- ty Com'rs, 57 Fed. 137; or Shannofi v. City of Huron, 9 S. D. 356, 6J N. W. 598, in conflict with this con- clusion. No court has held in any of these cases that the unlimited power to borrow money and issue bonds for all municipal purposes excludes the power to do so to fund or pay municipal debts. In Police Jury v. Britton, 82 U. S. (15 Wall.) 566, no power to issue bonds was granted to the parish, and the court simply held that this power was not to be inferred from the grant of general powers of administra- tion. In Merrill v. Monticello, 138 U. S. 673, a power was given to issue bonds for specified purposes, and the court held that this was not a grant of power to issue them for purposes not specified, on the familiar principle, 'Expressio unius est exclusio alterius.' In Brenham v. German American Bank, 144 U. S. 173, and Heins v. Lincoln, 102 Iowa, 69, 71 N. W. 189, it was held that a mere power to borrow money without authority to issue bonds dia not include the power to emit ne- gotiable securities to evidence the debt. In Coffin v. Kearney County Com'rs, 57 Fed. 137, the statute ex- pressly forbade the issue of bonds at the time when they were put forth; and in Shannon v. City of Huron, 9 S. D. 356, 69 N. W. 598, the power to issue bonds was not under discussion at all. The other cases cited are as wide of the mark." This case also held that "the fact that a municipal corporation has diverted the proceeds of its negoti- able securities from the lawful pur- pose for which they appear on their face to have been issued to an un- lawful purpose is no defense to an action upon them by an innocent purchaser who had no knowledge of or part in the diversion or waste." Citing National Life Ins. Co. v. Board of Education of Huron (C. C. A.) 62 Fed. 778; West Plains Tp. v. Sage (C. C. A.) 69 Fed. 943; An- derson County Com'rs v. Beal, 113 U. S. 227; Cairo v. Zane, 149 U. S. 122; Maxcy v. Williamson County Ct., 72 111. 207. Lake County Com'rs v. Keene Five-Cent Sav. Bank (C. C. A.) 108 Fed. 505. The court held here, fol- lowing City of Huron i Second Ward Sav. Bank (C. C. A.) 86 Fed. 272, 49 L. rt. A. 534, that funding bonds neither created nor increased a debt but simply changed its form. Independent School Dist. v. Rew, 111 Fed. 1, 55 L. R. A. 364; Chap- man v. Morris, 28 Cal. 393; Sharp v. Contra Costa County, 34 Cal. 284; California University v. Bernard, 57 Cal. 612; Bates v. Gregory (Cal.) 22 Pac. 683; In re Contracting of 390 POWERS. 173 incurred, some courts hold that the power to issue refunding bonds may be fairly inferable or implied from the original grant State Debt by Loan, 21 Colo. 399, 41 Pac. 1110; Lake County Com'rs v. Standley, 24 Colo. 1, 49 Pac. 23; Riley v. Garfleld Tp., 54 Kan. 463. The authority given "every county to refund its maturing and matured indebtedness of every kind and de- scription whatsoever" it was held included all indebtedness whether created subsequent or prior to the passage of the act. Woods v. Board of Education of Covington, 21 Ky. L. R. 941, 53 S. W. 517. An act giving public cor- porations the "right to refund any debt" by the issue of bonds was held a remedial one and should be ap- plied to a debt created subsequent to the passage of the statute. State v. Board of Liquidators, 27 La. Ann. 660; State v. Board of liquidation of City Debt, 51 La. Ann. 1142. A judgment in an ac- tion based upon tort held not a "floating debt" within the provi- sions of Act No. 67, 1884, touching the funding of the indebtedness of the city of New Orleans. Smith v. Stephan, 66 Md. 381; City of Port Huron v. McCall, 46 Mich. 565; Jefferson County Com'rs v. People, 5 Neb. 127; Anderson v. City of Trenton, 42 N. J. Law, 486. A statute authorizing the refunding of indebtedness by cities having a population of not less than 25,000 people held a violation of that con- stitutional amendment which for- bids the passage of special laws to regulate the internal affairs of a town. Hermann v. Town of Gutten- berg. 63 N. J. Law, 616, 44 Atl. 758, Laws 1898, c. 40, providing for the funding of existing debts for street improvements and incorporated towns is a general law and there- fore held constitutional. City of Poughkeepsie v. Quintard, 136 N. Y. 275; Odd Fellows' Sav. & Commercial Bank v. Quillen, 11 Nev. 109; Erskine v. Nelson County, 4 N. D. 339, 58 N. W. 348; Birkholz v. Dinnie, 6 N. D. 511. The limit of indebtedness as determined by State Const. 183 cannot be increased even by the issue of refunding bonds. Ter. v. Hopkins, 9 Okl. 133; Mor- ris v. Taylor, 31 Or. 62, 49 Pac. 660; Snyder v. Kantner, 190 Pa. 440; Hirt v. City of Erie, 200 Pa. 223, 49 Atl. 796. Refunding bonds not a new indebtedness within prohi- bition of Const, art. 9, 8. Cass County v. Wilbarger County, 25 Tex. Civ. App. 52, 60 S. W. 988; Baker v. City of Seattle, 2 Wash. St. 576; De Mattos v. City of New Whatcom, 4 Wash. 127, 29 Pac. 933. Refunding bonds as to a certain ex- cess held invalid. Richards v. Klickitat County, 13 Wash. 509. An indebtedness capa- ble of refundment may consist of that incurred either prior or subse- quent to legal authority for the is- sue of refunding bonds. Miller v. School Dist. No. 3, 5 Wyo. 217, 39 Pac. 879; Carbon County Com'rs v. Rollins, 9 Wyo. 281. In Deyo v. Otoe County. 37 Fed. 246, it is held that if the holder of valid municipal bonds surrenders them to the municipality and re- ceives in exchange therefor other bonds which the municipality has not the lawful right to issue, he is not thereby divested of his title to the bonds so surrendered; and 1/3 ISSUANCE OF SECURITIES. 391 of authority. 343 There are also decisions to the effect that the power to borrow money carries with it the implied power to give as security or as evidence of such indebtedness the usual and necessary certificates or commercial instruments which enable the corporation to exercise the power expressly granted "to borrow money." An application of the principle that the granting of a power carries with it the right to use all necessary, usual and appropriate means in its execution to the issue of negotiable bonds and that stamps them with validity. 344 It must not be such owner and holder of the bonds so surrendered may maintain an action thereon after the same na- ture. Daily v. City of Columbus, 49 Ind. 169. Where the proceeds of bonds are misapplied, a city can issue other bonds in their stead. Portland Sav. Bank v. City of Ev- ansville, 25 Fed. 389. A city au- thorized "to borrow money for the use of the city" may issue renewal bonds. New bonds are valid although old ones are void, where recitals would tend to mislead a bona fide purchas- er. See Cadillac v. Woonsocket Inst. for Savings, 58 Fed. 935. The court said: "The recitals in the new bonds, as to the fact of 'old bonds falling due,' and that the new bonds were issued to take up the old, would well lull an intending pur- chaser into security. The defense it might have made against the old bonds it elected not to make. It should not now be permitted to set it up as against a bona fide holder of its refunding bonds." See, also, Ashley v. Presque Isle County Sup'rs, 60 Fed. 55; Mutual Ben. Life Ins. Co. v. City of Elizabeth, 42 N. J. Law, 235; Hills v. Peeks- kill Sav. Bank, 101 N. Y. 490. 343Whitwell v. Pulaski County, 2 Dill. 249, Fed. Gas. No. 17,605. A county court has no implied au- thority to fund outstanding war- rants by the issue of negotiable bonds payable at a fixed future time and which would, if valid, change and enlarge the liability of the county. City of Galena v. Corwith, 48 111. 423. "A cit being in debt which is evidenced by script or by prom- issory notes may surely change the form of the indebtedness to inter- est bearing bonds and this, without express authority in its charter. It is an inherent power and vital without which such organizations could not live." Hull v. Marshall County, 12 Iowa, 142; Myers v. City of Jeffersonville, 145 Ind. 431; Goodnow v. Ramsey County Com'rs, 11 Minn. 31 (Gil. 12); Morris v. Taylor, 31 Or. 62, 49 Pac. 660. Where on the matur- ity of valid municipal bonds, a mu- nicipality, without legislative au- thority, takes them up and issues others in their stead, such second issues are void for want of author- ity but the original debt is still good, for valid bonds cannot be paid by void ones. Jefferson County v. Hawkins, 23 Fla. 223; Hardin Coun- ty v. McFarlan, 82 111. 138; Town of Solon v. Williamsburg Sav. Bank, 114 N. Y. 122; Rogan v. City of Watertown, 30 Wis. 259; Simonton, Mun. Bonds, 125, p. 165. 3*4 Portland Sav. Bank v. City of Evansville, 25 Fed. 389. In this 392 POWERS. g 173 understood, however, from the statements contained in the pre- ceding sentences that the right to issue refunding bonds exists independent of an original grant of power or that they can be issued without regard to the formalities required by law in the making of negotiable bonds by such corporations. The power to issue negotiable bonds must have been given either directly in a specific instance or as derived from a prior general grant of authority limited in the manner and extent of its exercise by constitutional provisions. 345 The conditions precedent must be performed and the agencies designated by law used to the same extent and in the same manner as in an issue of bonds not char- acterized by the term funding or refunding. 346 The original grant of authority for the issue of negotiable bonds may make their validity contingent upon an affirmative vote of the electors of the taxing districts issuing them. That an issue of refunding bonds be valid, if an election was necessary to the validity of the original bonds, the cases quite uniformly hold this action unnecessary where the proper authorities refund the corporate indebtedness. There is no necessity for referring the question of issue to the people unless required by law. 347 This case the common council of the city void as neither the townships of was authorized "to borrow money the state nor their officers had any for the use of the city" and under power to borrow money or to issue this authority it issued its renewal bonds, except as conferred by the bonds, which were held valid. City legislature. of Huron v. Second Ward Sav. Bank sie Brown v. Ingalls Tp., 81 Fed. (C. C. A.) 86 Fed. 272, 49 'L. R. A. 485. An unauthorized board has no 534; City of Pierre v. Dunscomb authority to issue refunding bonds. (C. C. A.) 106 Fed. 611; City of Roberts v. City of Paducah, 95 Fed. Galena v. Corwith, 48 111. 423. 62; Coffin v. Richards, 6 Idaho, 741, 345 Merrill v. Town of Monticello, 59 Pac. 562. An ordinance provid- 138 U. S. 673; Fisher v. Board of ing for "the funding of outstand- Liquidation of New Orleans, 56 Fed. ing indebtedness other than munic- 49; Coffin v. City of Indianapolis, ipal bonds" was held invalid where 59 Fed. 221; Coquard v. Village of the statute authorizing such action Oquawka, 192 111. 355, 61 N. E. 660. provided that the indebtedness to The power to issue refunding bonds be refunded must be described in cannot be implied merely from the the ordinance. power originally conferred author- Edminson v. City of Abilene, 7 izing a former issue. In Bogart v. Kan. App. 305, 54 Pac. 568. A reso- Lamotte Tp., 79 Mich. 294, where lution not sufficient where the char- bonds were issued in lieu of town- ter requires enactment of an ordi- ship orders, the bonds were held nance as necessary to the issue of 173 ISSUANCE OF SECURITIES. 393 is especialy true where statutes authorize public corporations to refund all matured and maturing indebtedness. There can be no question as to the validity of refunding bonds where the au- thority to issue them has been specially granted. In such case so far as their issue is concerned they will be deemed original bonds and the required legal conditions and formalities must be performed and complied with. 3 * 8 refunding bonds. City of Cincin- nati v. Guckenberger, 60 Ohio St. 353. 3*7 Howard v. Kiowa County, 73 Fed. 406; Society for Savings v. Pratt County Com'rs, 82 Fed. 573; City of Los Angeles v. Teed, 112 Cal. 319, 44 Pac. 580, disproving Boon Tp. v. Cummins, 142 U. S. 366; Bannock County v. C. Bunting & Co., 4 Idaho, 156, 37 Pac. 277. Author- ity granted by Rev. St. 3602, to refund indebtedness by issue of bonds, when authorized by a vote of two-thirds of the electors of the county. Locke v. Davison, 111 111. 19. Where, however, the law provides that the legal electors of the county shall pass upon the issue of refund- ing bonds, the public officials have no power, without such vote, to is- sue them. Riley v. Garfield Tp., 58 Kan. 299, 49 Pac. 85; Boyce v. Auditor Gen- eral, 90 Mich. 314, 51 N. W. 457; Boyce v. Auditor General, 90 Mich. 326, 52 N. W. 754; State v. Cornell, 54 Neb. 72, 74 N. W. 432. The stat- utes require a majority of the elect- ors to authorize the issuance of funding bonds. An original issue of bonds requires two-thirds of all the votes cast. McCless v. Meekins, 117 N. C. 34. sis Merrill v. Town of Monticello, 138 U. S. 673; Kiowa County Com'rs v. Howard (C. C. A.) 83 Fed. 296. In Waite v. City of Santa Cruz. 98 Fed. 387, it was held that a city has no power to issue refunding bonds for the purpose of paying bonds issued by a private corpora- tion upon a waterworks plant pur- chased by the city. But this deci- sion was reversed in Waite v. City of Santa Cruz, 184 U. S. 302, the court holding that the city was es- topped by recitals in the refunding bonds to the effect that the bonds were issued for the purpose of re- funding "outstanding indebtedness evidenced by bonds and warrants thereof" from denying that such waterworks bonds were a part of the outstanding indebtedness of the city. Seward County Com'rs v. Aetna Life Ins. Co. (C. C. A.) 90 Fed. 222; Haskell County Com'rs v. National Life Ins. Co. (C. C. A.) 90 Fed. 228; Pratt County Com'rs v. Society for Savings (C. C. A.) 90 Fed. 233; Brattleboro Sav. Bank v. Board of Trustees of Hardy Tp., 98 Fed. 524. An act of the Ohio legislature au- thorizing a township to issue bonds for the purpose of refunding its in- debtedness not void as in contraven- tion of the State Constitution, art. 2, 26, requiring that all laws of a general nature shall have a uni- form operation throughout the state. The decision on this point was considered from the legal sta- tus of abonaflde purchaser for value of negotiable bonds issued under au- thority of the refunding act. Cit- 394 POWERS. 174 174. Obligations issued for the purpose of funding a bonded indebtedness. The indebtedness of a public corporation may consist of differ- ent issues of negotiable bonds with varying dates of maturity. The debt considered in the preceding section includes the total corporate obligations whether evidenced by negotiable bonds or otherwise. The power may exist, implied or granted by statute, to refund the total bonded debt of the corporation, when it does not exist to fund or refund the total outstanding corporate obli- gations consisting of negotiable bonds and miscellaneous forms of debt. If, however, any doubt exists in either case, the power will be denied. The issue of negotiable bonds payable in the dis- tant future incurred generally for the construction of unneces- sary or extravagant public improvements is not regarded by the courts with favor. The power to issue refunding bonds for the purpose of funding bonded indebtedness of a public corporation must be derived from express legislative authority, 349 and this is ing, with many Ohio cases, Douglas v. Pike County, 101 U. S. 677, and Loeb v. Trustees of Columbia Tp., 91 Fed. 37. Hughes County T. Livingston (C. C. A.) 104 Fed. 306. Though war- rants in place of which funding bonds were issued were fraudulent and their proceeds were diverted from the lawful purpose specified in the bonds, yet such facts consti- tute no defense in an action by a bona fide purchaser of such refund- ing negotiable bonds. Yavapai County v. McCord (Ariz.) 59 Pac. 99; Smith v. Morse, 2 Cal. 524; People v. Woods, 7 Cal. 579; Board of Education of San Francis- co v. Fowler, 19 Cal. 11; Babcock v. Middleton, 20 Cal. 644. Constru- ing the constitutionality of the act of May 1st, 1851, to fund the in- debtedness of San Francisco, and its effect as impairing the obliga- tion of the contract entered into orig- inally with the creditors of that city. Carpenter v. Hindman, 32 Kan. 601; State v. Flanders, 24 La. Ann. 57; City of New Orleans v. South- ern Bank, 31 La. Ann. 560; Jardet v. Board of Liquidation of Public Debt, 40 La. Ann. 379, 3 So. 893. An obligation must be a legal and enforceable one in order to be in- cluded within "floating indebted- ness" as affected by legislation pro- viding for the issue of refunding bonds. Alexander v. City of Duluth, 77 Minn. 445, 80 N. W. 623. Laws 1899, c. 50, held to have a temporary and remedial purpose only so as to come within the exception to the rule that a law to be legal must be general and not based on existing circum- stances or those of limited dura- tion. State v. Moore, 45 Neb. 12, 63 N. W. 130. Act 1887, c. 9, held not to include within the term "in- debtedness" school district warrants or bonds. 349 Board of Liquidation T. Me- Comb, 92 U. S. 531, determining the 174 ISSUANCE OF SECURITIES. 395 true although such transactions usually result in a benefit or an advantage to the community, and do not, as repeatedly held, in- legality of the Louisiana funding act of Jan. 24, 1874; Hartman v. Greenhow, 102 U. S. 672; New York Guaranty & Indemnity Co. v. Board of Liquidation, 105 U. S. 622; Boon Tp. v. Cummins, 142 U. S. 366. The court here held that refunding bonds issued under authority of law for the purpose of funding the outstand- ing bonded indebtedness of the cor- poration and which were devoted in a large measure to the payment of miscellaneous obligations, not to the payment of outstanding bonds as designed, were not enforceable even in the hands of a bona fide holder where the total indebtedness of the corporation including such refunding bonds exceeded the con- stitutional limit. Justices Brown, Harlan and Brewer dissenting. This case, however, has been so distin- guished and criticised in respect to the point suggested that its value as authority has been much modi- fied if not entirely destroyed. It has been cited with approval in Shaw v. Independent School Dist. of Riverside, 77 Fed. 277, and dis- approved in City of Los Angeles v. Teed, 112 Cal. 319, 44 Pac. 582, and City of Huron v. Second Ward Sav. Bank, 86 Fed. 278, 49 L. R. A. 534. In this latter case in an able opin- ion by Judge Sanborn, the court said: "In Boon Tp. v. Cummins, 142 U. S. 367, 372, 378, 12 Sup. Ct. 220, the plaintiff did not buy the bonds for value, in good faith, and without notice of any defect from one to whom they had been issued by the corporation, as the bank did in this case; but he was himself the person to whom they were originally issued, and he knew when he took the first ten bonds that the district exceeded the constitutional limit of its indebtedness in issuing them, and that it intended to exceed that limit still more. The opinion of the ma- jority of the court in that case was that, where the debt of a municipal corporation already exceeded the constitutional limitation, the ex- change of new bonds for old, bond for bond, would not increase the debt of the corporation, and would not be inconsistent with the consti- tutional limitation, but that if the new bonds were sold, and their pro- ceeds were subsequently used to pay the old bonds, there would be a tem- porary increase of the debt, which would violate the limitation and in- validate the new securities. The distinction seems to be more nice than real, and, in view of the vigor- ous dissent which is recorded with the opinion, we may be permitted to doubt whether it will ever be made again." Waite v. City of Santa Cruz, 184 U. S. 302; City of Cadillac v. Woon- socket Inst. for Savings (C. C. A.) 58 Fed. 935; distinguishing Barnett v. Benison, 145 U. S. 135; Ashley v. Presque Isle County Sup'rs (C. C. A.) 60 Fed. 55. The court in this case, as well as the one last cited, held that a purchaser is not bound to investigate the nature of the re- funded indebtedness where refund- ing bonds recite upon their face that they are issued in conformity to law. Village of Oquawka v. Graves (C. C. A.) 82 Fed. 568. Merely because a corporation is indebted, the pow- 3% POWERS. 174 crease or add to the debt of the corporation but merely change its form. Where such authority can be shown the power clearly exists. 350 er does not exist as a matter of course to issue a renewal or refund- ing bond. Seward County Com'rs v. Aetna Life Ins. Co. (C. C. A.) 90 Fed. 222; Geer v. Ouray County Com'rs (C. C. A.) 97 Fed. 435; Farmers' Nat. Bank v. Jones, 105 Fed. 459. A state debt board have no power to exchange new refunding bonds for old bonds lost or destroyed. Board of Liquidation of New Or- leans v. United States, 108 Fed. 689; Schuerman v. Ter. (Ariz.) 60 Pac. 895; Kane v. City of Charleston, 161 111. 179; Coquard v. Village of Oquawka, 192 111. 355, 61 N. E. 660. Act of Feb. 13, 1865, 1, providing for the funding or refunding of out- standing bonds or securities applies to public corporations incurring in- debtedness before the passage of the act. Holliday v. Hilderbrandt, 97 Iowa, 177, 66 N. W. 89. To sustain the validity of refunding bonds it must be shown that the proceeds were used to pay the indebtedness they were designed to refund. Kelly v. Cole, 63 Kan. 385, 65 Pac. 672. The amount of refunding bonds authorized under the laws of Kan- sas, 1901, c. 288, 1, is limited to the amount of the bonded indebt- edness actually existing at the time the act of refunding occurs. Smith v. Mercer County, 104 Ky. 596, 47 S. W. 596; Richmond Cemetery Co. v. Sullivan, 104 Ky. 723, 47 S. W. 1079; State v. Babcock, 23 Neb. 802, 37 N. W. 645; State v. Benton, 33 Neb. 823. 51 N. W. 140. SBC Maish v. Ter. of Arizona, 164 U. S. 599. Utter v. Franklin, 172 U. S. 416. Outstanding legal indebted- ness includes bonds issued under authority of the legislature and pur- porting on their face to be legal ob- ligations of a public corporation ir- respective of their true character. P'aure v. Sinking Fund Com'rs, 25 Fed. 641; Gorman v. Sinking Fund Com'rs, 25 Fed. 647; West Plains Tp. v. Sage (C. C. A.) 69 Fed. 943. Refunding bonds need not be made payable to the holders of the re- funded indebtedness. Shaw v. Independent School Dist. of Riverside, 77 Fed. 277. Refund- ing bonds issued to fund an out- standing indebtedness void because in excess of a constitutional limit are void without regard to their re- citals. Hobart v. Butte County Sup'rs, 17 Gal. 23; Sullivan v. Walton, 20 Fla. 552; Myers v. City of Jeffersonville, 145 Ind. 431, 44 N. E. 452. Fund- ing bonds which have passed into the hands of a bona fide holder can be enforced without regard to the legal character of the indebtedness which they refunded. Heins v. Lincoln, 102 Iowa, 69, 71 N. W. 189; Farson, Leach & Co. v. Sinking Fund Com'rs of Louis- ville, 97 Ky. 119, 30 S. W. 17. In ascertaining a city's debt to deter- mine whether the limit of indebted- ness had been reached as fixed by the constitution, refunding bonds should not be included as a part of said indebtedness, since they nei- ther increase nor add to the debt of the municipality but merely change its form. Sparks v. Bohan- non, 22 Ky. L. R. 1710, 61 S. W. 260: Hope v. Board of Liquidation, 175 ISSUANCE OP SECURITIES. 397 175. The issue of negotiable securities for the construction or improvement of highways. The construction and improvement of highways is without doubt a governmental purpose, and the expenditure of public moneys therefor is considered a public use and one authorizing not only the expenditure of public moneys but the incurrment of a debt, when specially given the right, by a public corporation through the issue of negotiable bonds. 351 The highways contem- 43 La. Ann. 738, 9 So. 754; Opinion of Justices, 81 Me. 602. Refunding bonds issued under authority of law are valid, being in substitution and not in payment of the old bonds. Palmer v. City of Helena, 19 Mont. 61, 47 Pac. 209; City of Pough- keepsie v. Quintard, 65 Hun, 141, 19 N. Y. Supp. 944; Lloyd v. City of Altoona, 134 Pa. 545, 19 Atl. 675. Where bonds are refunded the hold- er cannot be compelled to take new bonds at a premium. Jones v. City of Camden, 44 S. C. 319, 23 S. E. 141; Conklin v. City of El Paso (Tex. Civ. App.) 44 S. W. 879; Branch v. Sinking Fund Com'rs, 80 Va. 427. Stolen redeemed state bonds coming into the hands of a bona fide holder for value with- out notice of theft, should be re- placed by refunding bonds author- ized by law. 351 Chilton v. Gratton, 82 Fed. 873; Devine v. Sacramento County Sup'rs, 121 Cal. 670; State v. Kan- sas City, 60 Kan. 518; Catron v. La Fayette County, 106 Mo. 659. Act 1868 recognizes a bridge as part of a road and the county court had authority to issue bonds for "re- pairing" roads. Ghiglione v. Marsh, 23 App. Div. 61, 48 N. Y. Supp. 604; Queens County Sup'rs v. Phipps, 28 App. Div. 521, 51 N. Y. Supp. 203; State v. Warren County Com'rs, 17 Ohio St. 558-; Jones v. City of Camden, 44 S. C. 319. A debt contracted for paving streets is for a municipal purpose and bonds may be issued in payment when express legisla- tive authority is conferred. Bonds issued for improvement of streets and highways. Gause v. City of Clarksville, 5 Dill. 165, Fed. Gas. No. 5,276; Hitchcock v. City of Galveston, 2 Woods, 272, Fed. Cas. No. 6,532; Sturtevant v. City of Alton, 3 McLean, 393, Fed. Cas. No. 13,580; Greeley v. City of Jacksonville, 17 Fla. 174; People v. Brislin, 80 111. 423 parks; Mul- larky v. Town of Cedar Falls, 19 Iowa, 21; Town of Parkland Y. Gaines, 88 Ky. 562; Catron v. La Fayette County, 106 Mo. 659; Mu- tual Ben. Life Ins. Co. v. City of Elizabeth, 42 N. J. Law, 235; Mit- tag v. Borough of Park Ridge, 61 N. J. Law, 151; State v. Babcock, 22 Neb. 614. In State v. Babcock, 23 Neb. 179, it was held that a bridge on a public highway leading into a city though outside the city lim- its is an internal improvement with- in the meaning of a statute provid- ing that cities may issue bonds in aid of certain internal improve- ments. State v. Ben ton, 25 Neb. 756; State v. Benton, 26 Neb. 154. But special district bonds cannot be is- sued for the curbing and guttering 398 POWERS. 175 plated by such principle, however, include the ordinary means of communication and usually exclude plank roads, toll roads and others similar in character which it is deemed expedient should be constructed and operated by private enterprise rather than by public moneys. 352 Bonds issued for the construction or the improvement of such highways as come within the proper use of the term are not ordinarily considered an original and general obligation of the corporation issuing them, and this is especially true where the holders are limited in their recovery both as to the payment of the principal and interest to special taxes or assessments levied against property benefited by the improvement. 353 Here the ob- of street intersections. Hubbard v. Sadler, 104 N. Y. 223; State v. Fay- ette County Com'rs, 37 Ohio St. 526; Mall v. City of Portland, 35 Or. 89; City of Williamsport v. Com., 84 Pa. 487; Com. v. Councils of Pitts- burgh, 88 Pa. 66; Neely v. Town Council of Yorkville, 10 S. C. 141; Jones v. City of Camden, 44 S. C. 319. 352 in Dodge County Com'rs v. Chandler, 96 U. S. 205, a bridge is held a work of public internal im- provement for which a city may be authorized to issue bonds notwith- standing it is to be maintained as a toll bridge. Rozier v. St. Francois County, 34 Mo. 395. Under a general law, a county court has no authority to apply any part of the road and canal funds to the purchase of a plank road already made by a corporation or individuals; it can apply the funds only to the construction and im- provement of roads, bridges, or canals, and to no other object, and it exceeded its authority when it assigned a bond appearing upon its face to have been given for money borrowed of the road and canal fund in payment of an interest pur- chased in such a plank road. But the case of Mitchell v. City of Bur- lington, 71 U. S. (4 Wall.) 270, holds that money borrowed by a city to construct a plank road, if the road leads from, extends to, or passes through, the limits of the city, is borrowed for a public pur- pose, and the bonds given as a means of raising the money are valid. This case also holds that where, by a series of decisions, the highest court of a state have held coupon bonds valid, this court will not follow subsequent decisions of the same courts holding the same bonds invalid. See, also, on this point, the authorities cited in sec- tion 202, and Ohio Life Ins. & T. Co. v. Debolt, 16 How. (U. S.) 432; Gelpcke v. City of Dubuque, 68 U. S. (1 Wall.) 175; Havemeyer v. Iowa County, 70 U. S. (3 Wall.) 294; Thomson v. Lee County, 70 U. S. (3 Wall.) 327; Campbell v. City of Kenosha, 72 U. S. (5 Wall.) 194; Lamed v. City of Burlington, 71 U. S. (4 Wall.) 275; Lee County v. Rogers, 74 U. S. (7 Wall.) 181; City of Kenosha v. Lamson, 76 U. S. (9 Wall.) 477. 53 Braun v. Benton County Com'rs 176 ISSUANCE OF SECURITIES. 399 ligation of the corporation seems to be limited to the proper col- lection and application of the special taxes or assessments pledged for the payment of the principal and interest of such bonds. 354 176. The construction of municipal lighting plants. The supplying of the inhabitants of a municipality with light has been held a public purpose for the appropriation or expendi- ture of public moneys, and though its expediency and legality is doubtful, the expenditure of public moneys for the purpose of constructing a lighting plant for supplying the city itself and public places with light is a public one within the recently accepted definitions of such term. We therefore find cases holding that a public corporation may, if it deems this course expedient, assum- ing legislative authority, issue long-term negotiable bonds for the construction of a lighting plant. 355 (C. C. A.) 70 Fed. 369, following Strieb v. Cox, 111 Ind. 299. See, also, Walker v. Monroe County Com'rs, 11 Ind. App. 285; Vickrey v. Sioux City, 115 Fed. 437; Davis v. County of Yuba (Cal.) 13 Pac. 874; Tate v. Town of Parkland, 11 Ky. L. R. 838, 13 S. W. 443. The issue of bonds for the purpose of constructing certain streets held un- constitutional on the ground that the creation of the fund for their payment subjects agricultural land to unequal taxation. 354 Vickrey v. Sioux City, 115 Fed. 437; Devine v. Sacramento County Sup'.'s, 121 Cal. 670; Kirsch v. Braun. 153 Ind. 247, 53 N. E. 1082. 355 Fellows v. Walker, 39 Fed. 651; Jacksonville Elec. Light Co. v. City of Jacksonville, 36 Fla. 229, 30 L. R. A. 540; Middleton v. City of St. Augustine, 42 Fla. 287, 29 So. 421; Heilbron v. City of Cuthbert, 96 Ga. 312; Rushville Gas Co. v. City of Rushville, 121 Ind. 206, 6 L. R. A. 315. "We have no doubt that the common council had power to contract for lighting the city or to furnish light from works of which it is, or may become, the owner. The power exists under the general act of incorporation." Humphries v. Davis, 100 Ind. 274; Robinson v. Rippey, 111 Ind. 112; Morrison v. Jacoby, 114 Ind. 84; Bradley v. Thixton, 117 Ind. 255; City of Newport v. Newport Light Co., 84 Ky. 167; Janeway v. City of Duluth, 65 Minn. 292; Jersey City Gaslight Co. v. Consumers' Gas Co. of Jersey City, 40 N. J. Law (13 Stew.) 427; but Biddle v. Borough of Riverton, 58 N. J. Law, 289, 33 Atl. 279 holds to the contrary. Mason v. Cranbury Tp., 68 N. J. Law, 149, 52 Atl. 568; Hequembourg v. City of Dunkirk, 2 N. Y. Supp. 447. Mayo v. Town of Washington, 122 N. C. 5, 29 S. E. 343, 40 L. R. A. 163. Where the state constitution prohibited a municipal corporation from contracting a debt or levying taxes except for necessary expenses unless by a majority vote of the qualified voters, it requires special legislative authority to authorize the issuing of bonds for the erec- 400 POWERS. 177. To secure a water supply. 177 It has already been stated in a preceding section 356 that for the proper preservation of the public health a public corporation has the power to incur indebtedness for the purpose of constructing and operating a plant supplying water to the corporation itself for its necessary municipal purposes, and possibly to its inhab- itants. 357 The power thus conferred includes the right to con- tion of an electric light plant for the lighting of its streets. Town of Klamath Falls v. Sachs, 35 Or. 325; Todd v. City of Laurens, 48 S. C. 395; Lewis v. City of Port Angeles, 7 Wash. 190; State v. Mil- waukee Gaslight Co., 29 Wis. 454; Ellinwood v. City of Reedsburg, 91 Wis. 131; Parkersburg Gas Co. v. City of Parkersburg, 30 W. Va. 435; Petros v. City of Vancouver, 13 Wash. 423. The issue of bonds for the construction of a lighting plant held within the term "gen- eral municipal purposes" as used in the constitution. See, also, 30 Am. St. Rep. 225-226. sse Section 146. 357 National Foundry & Pipe Works v. Oconto Water Co., 52 Fed. 29; Fergus Falls Water Co. T. City of Fergus Falls, 65 Fed. 586; Derby v. Modesto, 104 Cal. 515; Thomas v. City of Grand Junction, 13 Colo. App. 80; City of Rome v. Cabot, 28 Ga. 50; Gold v. City of Peoria, 65 111. App. 602. The court in speak- ing of the contention that the debt was for expenses incurred in pro- tecting the municipal health and property said: "It matters not that it was providing for a necessary pro- tection to health and property and a current expense; the city could not override the constitutional bar- rier under the claim of meeting current expenses any more than it could create a debt payable in the future." Citing City of Springfield v. Edwards, 84 111. 626, and Prince v. City of Quincy, 105 111. 138, 128 111. 443. Button v. City of Aurora, 114 111. 138; Culbertson v. City of Fulton, 127 111. 30; Daily v. City of Colum- bus, 49 Ind. 169; Smalley v. Yates, 36 Kan. 519; Daniels v. Long, 111 Mich. 562; Truelsen v. City of Du- luth, 61 Minn. 48; Janeway v. City of Duluth, 65 Minn. 292, 33 L. R. A. 511; State v. Babcock, 25 Neb. 500; Sweet v. City of Syracuse, 129 N. Y. 316, reversing 60 Hun, 28, 14 N. Y. Supp. 421; Village of Ft. Ed- ward v. Fish, 156 N. Y. 363; Elyria Gas & Water Co. v. City of Elyria, 57 Ohio St. 374; Ackerman v. Buchman, 109 Pa. 254; Todd v. City of Laurens, 48 S. C. 395, 26 S. E. 682; State v. Town of Newberry, 47 S. C. 418; Winston v. Ft. Worth (Tex. Civ. App.) 47 S. W. 740. City of Austin v. Nalle, 85 Tex. 520. The size of the plant is not necessarily limited to the wants of the municipality at the time of its construction, and where one was built largely in excess of such pres- ent needs, the issue of bonds, it was held, would not be restrained. Seymour v. City of Tacoma, 6 Wash. 138; Faulkner v. City of Seattle, 19 Wash. 320; Ellinwood v. City of Reedsburg, 91 Wis. 131. Where au- thority is granted a city council to build waterworks and issue bonds 177 ISSUANCE OF SECURITIES. 401 tract a floating debt or when specially authorized to issue nego- tiable bonds. The manner of the exercise of such power is usually discretionary, 358 and the only restriction upon it seems to be the limitation found in a constitutional or statutory provision fixing the amount of debt or indebtedness that a public corporation can legally incur. 359 In some states, however, special. provisions are therefor, the manner of the exer- open the door to results which else of such authority is discretion- would be disastrous." Citizens' ary. Water Company v. Bridgeport Hy- 35s Thomas v. City of Grand June- draulic Co., 55 Conn. 1; Daily v. tion, 13 Colo. App. 80. In this case City of Columbus, 49 Ind. 169; State the statute gave the municipality v. Caffery, 49 La. Ann. 1152, 22 So. power "to purchase or erect water- 756; Moore v. City of Duluth, 74 works," etc., and the claim was Minn. 105, the power, however, lim- made that the use of the word "or" ited by subsequent election. State precluded a city from doing more v. Babcock, 25 Neb. 709. than one of the things granted; the Painter v. City of Norfolk, 62 court said: "The primary object of Neb. 330, 87 N. W. 31. A contract the statute was to permit the in- by ordinance with a waterworks habitants of towns and cities to se- company for the construction of a cure an adequate supply of pure waterworks plant with the reserved water, a paramount net essity more right on the part of the municipality important than all other public util- to purchase It assuming the bond- ities and absolutely necessary for ed indebtedness of the company, was the sustenance of life, the preserva- held void as incurring a bonded tion of health and the protection of debt in violation of that provision property. This being the case, it of the statute prohibiting the in- is to be presumed that the legisla- currment of a bonded debt without ture desired to invest the people popular vote. who were themselves to bear the New York & R. Cement Co. v. burdens of the expense with every Davis, 62 App. Div. 577, 71 N. Y. power necessary to supply this im- Supp. 185; Town of Klamath Falls perative want. The legislature it- v. Sachs, 35 Or. 325; Ackerman v. self could not determine and fix Buchman, 109 Pa. 254; Duncan v. upon some one invariable mode or City of Charleston, 60 S. C. 532. The manner by which this supply was Increase of bonded Indebtedness to be obtained for the obvious rea- without submission of the question sons that too many conditions were to the electors of the city held to be considered; that what would illegal as in contravention of con- be proper, necessary and entirely stitutional provision art. 8, 7. City satisfactory at one town would be of Brenham v. Brenbam Water Co., entirely impracticable in another. 67 Tex. 542. * * * If it were the intent of the 359 Buchanan v. City of Litchfield, legislature to give to the word 'or' 102 U. S. 278. The Interpretation the meaning contended for by plain- of the Illinois Const, art. 9, 12, tiff, then it would in many instances "No county, city, township, school Abb. Corp. 26. 402 POWERS. 177 to be found dividing indebtedness legally incurrable into classes, one of which is the contracting of obligations for the especial purpose of supplying a public corporation and its inhabitants with both water and light. Here the power to issue negotiable bonds is limited by these special provisions. 360 ; district or other municipal corpora- 114 U. S. 190, the court in constru- tion shall be allowed to become in- ing the same provision of the Illi- debted in any manner or for any nois constitution use the following purpose to an amount including ex- language which is strongly approved isting indebtedness in the aggregate and commended in the Ironwood exceeding five per centum on the Waterworks case, post: "It (the value of the taxable property there- city) shall not become indebted; in to be ascertained by the last as- shall not incur any pecuniary lia- sessment for state and county taxes bility. It shall not do this in any previous to the incurring of such in- manner, neither by bonds nor notes debtedness," was at issue and Jus- nor by express or implied promises, tice Harlan speaking for the court Nor shall it be done for any pur- said: "The words employed are pose no matter how urgent, how too explicit to leave any doubt as useful, how unanimous the wish. to the object of the constitutional There stands the existing indebted- restriction upon municipal indebt- ness to a given amount in relation edness. The purpose of its framers to the sources of payment as an beyond all question was to with- impassable obstacle to the creation hold from the legislative depart- of any further debt in any manner ment the power to confer upon mu- or for any purpose whatever. If nicipal corporations authority to in- this prohibition is worth anything, cur indebtedness in excess of a it is as effectual against the implied prescribed amount. The authority as the express promise and is as therefore, conferred by the act of binding in a court of chancery as April 15th, 1873, to incur indebted- a court of law." ness in the construction and main- Ironwood Water Works Co. v. tenance of a system of waterworks City of Ironwood, 99 Mich. 454, 58 could have been lawfully exercised N. W. 371; State v. Town of Colum- by a city, incorporated town or bia, 111 Mo. 365, 20 S. W. 90; Vil- village, only when its liabilities in- lage of Hempstead v. Seymour, 34 creased by any proposed new indebt- Misc. 92, 69 N. Y. Supp. 462; South- edness, would be within the consti- erland v. Town of Goldsboro, 96 N tutional limit. No legislation could C. 49; Duke v. Brown, 96 N. C. 127; confer upon a municipal corporation Bassett v. City of El Paso (Tex. authority to contract indebtedness Civ. App.) 28 S. W. 554. which the constitution expressly seo National Bank of Commerce v. declared it should not be allowed to Town of Grenada, 41 Fed. 87. "It Incur." Citing, Law v. People, 87 is finally insisted by the learned 111. 385, and Fuller v. City of Chi- counsel for the defendant that sec- cago, 89 111. 282. tion 1, art. 2, of the state constitu- In City of Litchfield v. Ballou. tion prohibits in strong terms such 178 ISSUANCE OF SECURITIES. 403 178. Railway aid securities. The reasons and the principle stated in a preceding section 581 in regard to the incurrment of indebtedness or the granting of aid by public corporations for this purpose, apply to the issue of ne- gotiable bonds. The principle is clearly established that where the legal authority exists public corporations may issue negotiable bonds for the purpose of constructing or aiding in the construction of lines of railway through or adjacent to them. A few of the many authorities will be cited in the note. 888 Such use of public municipal corporations from lend- ing their credit in any form in aid of any individual, association or corporation whatsoever; but by sec- tion 8 of the said article special ex- ception is made in favor of the power by such corporations to create debts for the purpose of supplying themselves with water for irriga- tion, for suppressing fires, and for .domestic use. There seems to be no limit to the extent of the debts which may be incurred for such pur- poses." Grace v. Town of Hawkinsville, 101 Ga. 553, 28 S. E. 1021; State v. Caffery, 49 La. Ann. 1152, 22 So. 756; Woodbridge v. City of Duluth, 57 Minn. 256, construing Sp. Laws 1891, c. 55, 35; Sweet v. City of Syracuse, 129 N. Y. 316, 27 N. E. 1081, 29 N. E. 289, reversing 60 Hun, 28, 14 N. Y. Supp. 421; Faulkner v. City of Seattle, 19 Wash. 320. 301 Section 147. sea Town of Queensbury v. Culver, 86 U. S. (19 Wall.) 83; Nugent v. Putnam County Sup'rs, 86 U. S. (19 Wall.) 241; Cass County v. GI1- lett, 100 U. S. 585; Bates County v. Winters, 112 U. S. 325. Barnum v. Town of Okolona, 148 U. S. 393, where the court said, "that municipal corporations have no power to issue bonds in aid of a railroad, except by legislative per- mission; that the legislature in granting permission to a munici- pality to issue its bonds In aid of a railroad may impose such condi- tions as it may choose; and that such legislative permission does not carry with it authority to execute negotiable bonds except subject to the restrictions and conditions of the enabling act." Provident Life & Trust Co. v. Mer- cer County, 170 U. S. 593; Wilkes County Com'rs v. Coler, 113 Fed. 725; Ex parte Selma & G. R. Co., 45 Ala. 696; Hancock v. Chicot Coun- ty, 32 Ark. 575; Higgins v. City of San Diego (Cal.) 45 Pac. 824; So- ciety for Savings v. City of New London, 29 Conn. 174; Columbia County Com'rs v. King, 13 Fla. 451; Powers v. Inferior Ct. of Dougherty County, 23 Ga. 65; Town of Middle- port v. Aetna Life Ins. Co., 82 111. 562; Hutchinson v. Self, 153 111. 542; Delaware County Com'rs v. Mc- Clintock, 51 Ind. 325; Dubuque Coun- ty v. Dubuque & P. R. Co., 4 G. Greene (Iowa) 1; Chicago, K. & W. R. Co. v. Osage County Com'rs, 38 Kan. 597, 16 Pac. 828; Daviesa County Ct. v. Howard, 13 Bush (Ky.) 101; Sparks v. Bohannon, 22 Ky. L. R. 1710, 61 S. W. 260; Knox v. City of Baton Rouge, 36 La. Ann. 427; Stevens v. Inhabitants of An- son, 73 Me. 489; Baltimore & D. P. 404 POWERS. 179 moneys is held a public purpose within the meaning of that phrase as applied to the expenditure of moneys raised through the impo- sition of taxes upon taxable interests. It is useless in view of the settled law to discuss the advisability or expediency of this rule. Public corporations certainly have legitimate purposes suf- ficient to employ all their available means without resorting to such questionable uses. The consolidation or reorganization of the railway company originally intended by the public corpo- ration as the party to whom bonds or aid was to be given or the fact of its reorganization does not usually affect the validity of railway aid bonds issued under legal authority. 363 179. Construction of drains and sewers. The construction of a system of ditches as a means of drainage or as affording facilities for a supply of water for domestic uses or the irrigation of lands, or the construction of a sewage system, is considered such a public use of funds as to authorize the issue of negotiable bonds, 364 the purpose being either to pre- 11. Co. v. Pumphrey, 74 Md. 86, 21 234; First Nat. Bank of St. Johns- Atl. 559; Portage County Sup'rs v. bury v. Town of Concord, 50 Vt. Wisconsin Cent. R. Co., 121 Mass. 257; Powell v. Brunswick County 460; State v. Town of Clark, 23 Sup'rs, 88 Va. 707, 14 S. E. 543; Minn. 422; New Orleans, St. L. & West Virginia & P. R. Co. v. Harri- C. R. Co. v. McDonald, 53 Miss. 240; son County Ct., 47 W. Va. 273, 34 State v. Mississippi River Bridge S. E. 786; Bushnell v. Beloit, 10 Co., 134 Mo. 321, 35 S. W. 592; Wis. 195; Crogster v. Bayfield Coun- Hallenbeck v. Halm, 2 Neb. 377; ty, 99 Wis. 1. Decisions collected in Midland Tp. T. Gage County Board, 31 Am. & Eng. Corp. Cas. 661, 669 37 Neb. 582; Gibson v. Mason, 5 and 682, 59 Am. Dec. 782-790, ana Nev. 283; Perry v. Keene, 56 N. 68 Am. Dec. 694-696. H. 514; Coler v. Santa Fe County ses Ray County v. Vansycle, 96 TJ. Com'rs, 6 N. M. 88, 27 Pac. 619; S. 675; City of Columbus v. Den- People v. Henshaw, 61 Barb. (N. Y.) nison, 69 Fed. 58; Morrill v. Smith 409; Wilkes County Com'rs v. Call, County, 89 Tex. 529, 36 S. W. 56. 123 N. C. 308; Glenn v. Wray, 126 But see to the contrary, Harshma* N. C. 730; State v. Village of Per- v. Bates County, 3 Dill. 150, Fed. rysburg, 14 Ohio St. 472; Pittsburg Cas. No. 6,148. & S. R. Co. v. Allegheny County, 79 364 Fallbrook Irr. Dist. v. Bradley, Pa. 210; Coleman v. Broad River 164 U. S. 112, 17 Sup. Ct. 56; Shel- Tp., 50 S. C. 321; Nelson v. Hay- ley v. St. Charles County, 17 Fed. wood County, 87 Tenn. 781, 11 S. 909; Perkins County v. Graff, 114 W. 885, 4 L. R. A. 648; Austin v. Fed. 441; Murphy v. City of Wil- Gulf, C. & S. F. R. Co., 45 Tex. mington, 6 Houst. (Del.) 108; Kim- 180 ISSUANCE OF SECURITIES. 405 serve the health of the people by supplying proper sewerage and drainage systems or to increase the area of tillable and arable lands, both considered governmental ends. 180. The construction of bridges. By many authorities it is considered an end or aim of govern- ment to furnish facilities for economical and rapid communica- tion between the different parts of a state. This would include the power to construct or aid in the construction of highways, and, as a part of such highways, bridges crossing streams or other impassable places. The authority is generally derived from some constitutional provision authorizing the state or its subordinate agencies within prescribed limitations to construct works of "internal improvement." The question whether a cer- tain enterprise or the construction of a certain improvement is a work of "internal improvement" such as to justify the expendi- ture of public moneys is generally decided by the benefit or ad- vantage to be derived by the people or the public at large from such enterprise or improvement. The question of its cost or ex- tent does not determine its nature. If the work is designed to effect the end suggested above and results in a benefit or advan- tage to the community at large without regard to the benefits accruing to individuals it will be clearly characterized as a work of "internal improvement" within the meaning of the constitu- tional phrase. The construction of a bridge being thus a public use of public moneys so far as the purpose of such use is con- cerned, a public corporation possesses the legal right to issue ball v. Reclamation Fund Com'rs, 45 45 Neb. 798; Paxton & H. Irr. Canal Cal. 344; Hughson v. Crane, 115 & Land Co. v. Farmers' & M. Irr. Cal. 404; Clapp v. City of Hart- & Land Co., 45 Neb. 884, 29 L. R. ford, 35 Conn. 66; Greeley v. City A. 853; Alfalfa Irr. Dist. v. Collins, of Jacksonville, 17 Fla. 174; Lussem 46 Neb. 411; Cummings v. Hyatt, v. Sanitary Dist. of Chicago, 192 111. 54 Neb. 35, 74 N. W. 411; Tide- 404, 61 N. E. 544; City of Atchison water Co. v. Coster, 18 N. J. Eq. v. Price, 45 Kan. 296, 25 Pac. 605; (3 C. E. Greene) 519; Robinson v. City of Louisville v. Board of Park City of Goldsboro, 122 N. C. 211; Com'rs, 112 Ky. 409, 65 S. W. 860; Cleveland v. City Council of Spar- Town of New Iberia v. New Iberia & tanburg, 54 S. C. 83, 31 S. E. 871; B. C. Drainage Dist., 106 La. 651; Holler v. City of Galveston, 23 Tex. State v. Babcock, 25 Neb. 709; Clark Civ. App. 693; Johnson v. City of v. Cambridge & A. Irr. & Imp. Co., Milwaukee, 88 Wis. 383. 406 POWERS. 180 negotiable bonds where the cost of construction is in excess of the funds immediately available in the corporate treasury for such purpose controlled by constitutional provision relative to incurring debts. 365 The authority in common with the issue of negotiable bonds for other purposes must, however, expressly exist in order to be available, and all of the formalities and lim- itations as required by law must be complied with to render them valid. 368 sea Ritchie v. Franklin County, 89 U. S. (22 Wall.) 67; Dodge County Com'rs v. Chandler, 96 U. S. 205. A bridge considered a work of "in- ternal improvement" even though tolls be charged for its use. "The bridge being an internal improve- ment the precinct had the power to aid in its construction. This it re- solved to do and on this resolve it founded the issue of the bonds. Whether it should get any consid- eration from the public in return was a question in which the pur- chaser of the bond is not concerned. * * * The toll question was an incidental one * * * and cannot affect the issue of the bonds." United States v. Dodge County Com'rs, 110 U. S. 156; Comanche County v. Lewis, 133 U. S. 198; City of South St. Paul v. Lamprecht Bros. Co., 88 Fed. 449; City Council of Montgomery v. Montgomery & W. Plank-Road Co., 31 Ala. 76; Town of Stites v. Wiggins Ferry Co., 97 111. App. 157. Where statutory au- thority authorizes the issue of bonds to build bridges, public officials can- not issue them for the construction of a road. Mullarky v. Town of Cedar Falls, 19 Iowa, 21; Barber County Com'rs v. Smith, 48 Kan. 331, 29 Pac. 565; Salt Creek Tp. v. King Iron Bridge & Mfg. Co., 51 Kan. 520. City of Cumberland v. Magruder, 34 Mr!. 381. The power given to issue bonds for the building of a bridge should be construed in subor- dination to a provision of the city charter, and where this restricts the power of the municipality to pledge its credit beyond a limited sum the act authorizing the construction of a bridge through the issue of bonds will not be held to repeal the char- ter provision. Tillotson v. City of Saginaw, 94 Mich. 240; Naegely v. City of Sag- inaw, 101 Mich. 532; Bradley v. Franklin County, 65 Mo. 638, fol- lowing Steines v. Franklin County, 48 Mo. 167, and Ritchie v. Franklin County, 89 U. S. (22 Wall.) 67; Union Pac. R. Co. v. Colfax County Com'rs, 4 Neb. 450; Clark v. Day- ton, 6 Neb. 192; Follmer v. Nuckolls County Com'rs, 6 Neb. 204; State v. Keith County, 16 Neb. 508; State v. Babcock, 23 Neb. 179, 36 N. W. 474. Fremont Bldg. Ass'n v. Sherwin, 6 Neb. 48. An issue of bonds au- thorized although the bridge to be constructed can be used only on the payment of tolls. Town of Kirk- wood v. Newburg, 45 Hun, 323, 122 N. Y. 571; People v. Kelly, 5 Abb. N. C. (N. Y.) 383; McKethan v Cumberland County Com'rs, 92 N. C. 243; Burnett v. Maloney, 97 Tenn. 697, 34 L. R. A. 541; Mitchell Coun- ty v. City Not. Bank, 91 Tex. 361. 'as Berlin Iron Bridge Co. v. City of San Antonio, 62 Fed. 882. Where 181 ISSUANCE OF SECURITIES. 407 181. The erection of public buildings. To carry on the various branches of government, public build- ings are necessary for use by public officials in performing their duties and in caring for and preserving the public records. Pub- lic buildings are also necessary to house and properly care for the indigent, infirm and defective, and control the criminal classes, each proper functions of government. A system of pub- lic education is universally conceded to be one of the fundamen- tal aims of government, and structures are necessary that this be properly accomplished. Buildings for all these purposes are in- dispensable that the ends for which government is organized be successfully carried out. The power of the state may go farther and authorize the construction of buildings for use in the educa- tion and development of the mechanical, literary and artistic tend- encies of a community. The power therefore clearly exists in a public corporation when specially authorized by law to issue ne- gotiable bonds for the construction of state capitols, county or pub- lic buildings, 367 court houses, jails and penitentiaries, 368 poorhous- no provision was made as required by the Const, of Tex. art. 11, 5 and 7, for a sinking fund at the time of the creation of the debt, the issue of bonds considered void. Bra- zoria County v. Youngstown Bridge Co. (C. C. A.) 80 Fed. 10; Rondot v. Rogers Tp. (C. C. A.) 99 Fed. 202, and cases cited in opinion of Mr. Justice Taft; State v. Williams, 68 Conn. 131, 48 L. R. A. 465; Berlin Iron Bridge Co. v. Wagner, 57 Hun, 346, 10 N. Y. Supp. 840; Mitchell County v. City Nat. Bank, 91 Tex. 361, 43 S. W. 880, reversing 15 Tex. Civ. App. 172, 39 S. W. 628; State v. Wood County, 72 Wis. 629, 40 N. W. 381. Wagner v. Milwaukee County, 112 Wis. 601, 88 N. W. 577. An act authorizing the building of viaducts which applies to but one county in the state was held local and special in this case and in violation of Const, art. 4, 18. 397McHugh v. City ft County of San Francisco, 132 Cal. 381, 64 Pac. 570; State v. Callehan, 1 Ind. 147; Schneck v. City of Jeffersonville, 152 Ind. 204, 52 N. E. 212; Myers v. City of Jeffersonville, 145 Ind. 431, 44 N. E. 452. Bonds issued to se- cure moneys borrowed for the pur- pose of defraying the expenses of litigation involving the removal of a county seat held invalid. Taggart v. City of Detroit, 71 Mich. 92, citing with approval Fa- zende v. City of Houston, 34 Fed. 95. Bonds in this case used for the construction of a central pub- lic market. In a lengthy and ex- ceedingly well written opinion in which there is much law relating to markets in general the court said: "It may be true that the city would be obliged at maturity to pay the bonds at all events whether receiving income enough or not. But it is equally true that 408 POWERS. es, institutions for the feeble-minded or the insane, 369 school build- ings, universities 370 and libraries. It is as true with bonds issued It would be a fraud on the taxpay- ers and a violation of the act of the legislature, to relinquish the fund set apart for that purpose which was made a trust fund and charge its value as a general city charge. The power to pay these bonds by taxation was not meant to be granted unless the other means failed. * * * The argu- ment that the bonds are actually paid is fallacious. The city sink- ing fund is in law a fund which has value in securities and the mar- ket bonds are as much property as if they were government bonds. They can only be exchanged for ac- tual money equivalents. A cancel- lation of these bonds would be a withdrawal for market purposes of the same amount of funds belong- ing to other purposes. * * * Unless the legislature shall see fit to provide otherwise there can be no step taken to use the trust property for other purposes, without a direct violation of legal duty and it cannot be allowed." See, also, authorities cited 21 Am. & Eng. Enc. of Law (2d Ed.) 40. sea Alabama G. S. R. Co. v. Reed, 124 Ala. 253, 27 So. 19; 'Linn Coun- ty Com'rs v. Snyder, 45 Kan. 636, and cases cited in opinion of Judge Green; Chaska Co. v. Carver Coun- ty Sup'rs, 6 Minn. 204 (Gil. 130); Nininger v. Carver County Com'rs, 10 Minn. 133 (Gil. 106); Goodnow r. Ramsey County Com'rs, 11 Minn. 31 (Gil. 12); Cushman v. Carver County Com'rs, 19 Minn. 295 (Gil. 252); Rogers v. Le Sueur County, 57 Minn. 434; Catron v. La Fayette County, 106 Mo. 659, 17 S. W. 577; Dawson County Com'rs v. McNamar, 10 Neb. 276; State v. Lincoln Coun- ty Com'rs, 18 Neb. 283; People v. Oneida County Sup'rs, 68 App. Div. 650, 74 N. Y. Supp. 1142; Robert- son v. Breedlove, 61 Tex. 316. 369Keyes v. St. Croix County, 108 Wis. 136, 83 N. W. 637. The court say: "The situation is not differ- ent in principle from that present- ed to this court in Oconto City Wa- ter Supply Co. v. City of Oconto, 105 Wis. 76, where it was held that subsequent authority to a city to contract for a water supply was not restrained by the pre-existing lim- itation in its charter upon taxation. We conclude therefore, that the bonds issued for a county insane asylum are not to be considered within the limitation of 1% per cent prescribed by section 658." (This section of the statute limits the is- suing of bonds for county buildings to 1% per cent of the assessed valu- ation.) 370 Board of Education of Pierre v. McLean, 106 Fed. 817; Wetmore v. City of Oakland, 99 Cal. 146. Sherlock v. Village of Winnetka, 68 111. 530. Bonds issued for the pur- pose of building dormitory or board- ing house for use in connection with public school buildings held not authorized by law. But see City of Emporia v. Partch, 21 Kan. 202. State v. City of Terre Haute, 87 Ind. 212; Williams v. Town of Al- bion, 58 Ind. 329; Taylor v. Brown- field, 41 Iowa, 264; School Dist. No. 39 v. Sullivan, 48 Kan. 624; Board of Education of Topeka v. Welch, 51 Kan. 792, 33 Pac. 654; Com. T, Louisville & N. R. Co., 17 Ky. L. R. 991, 33 S. W. 204; Revell v. City of 182 ISSUANCE OF SECURITIES. 409 for the purposes above stated as those issued for other purposes that special authority must exist for the incurring of indebted- ness in this precise manner. The application of the principle stated in the preceding sections that the power to issue bonds must be expressly given and never implied is not relaxed, and we consequently find in the eases many instances of bonds being held invalid or void not because of the contemplated use of their pro- ceeds but on account of the absence of authority or the failure to follow the conditions precedent to a valid issue as plainly ex- pressed in the written law. 371 182. For making local improvements. The use of public moneys for the laying out or improvement of streets 372 and parks, 373 or the construction of public works not Annapolis, 81 Md. 1, 31 Atl. 695; State v. School Dist. No. 9, 10 Neb. 544; Pierce, Butler & Pierce Mfg. Co. v. Bleckwenn, 131 N. Y. 570; State v. Bacon, 31 S. C. 120, 9 S. E. 765. City of Waxahachie v. Brown, 67 Tex. 519, 4 S. W. 207. Tex. Rev. St. art. 3783, authorizes the board of aldermen to pass such ordinances as may be necessary to establish and maintain free schools, purchase building sites and construct school houses. The court held that this authority was not sufficiently broad to warrant the purchase of school buildings and issue bonds in pay- ment. Lafebre v. Board of Educa- tion of Superior, 81 Wis. 660. 37i Francis v. Howard County, 50 Fed. 44, where the cases are ex- amined and many of them discussed by Judge Maxey; Ashuelot Nat. Bank v. School Dist. No. 7 (C. C. A.) 56 Fed. 197, affirming 41 Fed. 514, and following Brenham v. German American Bank, 144 U. S. 173; Mc- mullen v. Ingham Circ uit Judge, 102 Mich. 608, 61 N. W. 260; Rich- ardson v. McReynolds, 114 Mo. 641, 21 S. W. 901; State v. Sherman County Com'rs, 31 Neb. 465, 48 N. W. 146, following State v. School Dist. No. 4, 16 Neb. 182; Tukey v. City of Omaha, 54 Neb. 370, 74 N. W. 613. Field v. City of Bayonne, 49 N. J. Law, 308, 8 Atl. 114. School houses not included in the expres- sion "public buildings." Nolan County v. State, 83 Tex. 182, 17 S. W. 823; Noel Young Bond & Stock Co. v. Mitchell County, 21 Tex. 638, 54 S. W. 284; Burnham v. City of Milwaukee, 98 Wis. 128, 73 N. W. 1018. 372 Hitchcock v. City of Galveston, 96 U. S. 341. "Tue learned (trial) judge held the contract inoperative because by it the city agreed to pay for the work to be done and the contractors agreed to receive in pay- ment at par, bonds of the city de- nominated 'Galveston city bonds for sidewalk improvement.' * * * The issue of such bonds was held by the court to be transgressive of the power of the city and the ruling was thought to be supported by the decision of this court in the case of Police Jury v. Britton, 82 410 POWERS. 282 coming within the classes noted in the preceding section, 374 is considered a public use for which public corporations may when authorized by the legislature loan their credit or issue negotiable bonds for the immediate payment of their cost. The question of including such bonds as a part of the corporate indebtedness in determining whether this has exceeded the legal limitation has been considered in a preceding section, as well as the manner of their payment. U. S. (15 Wall.) 566, and The Mayor v. Ray, 86 U. S. (19 Wall.) 468. In the view we shall take of the present case, it is, perhaps, not necessary to inquire whether those cases justify the court's conclusion for if it were conceded that the city had no lawful authority to issue the bonds described in the ordinance and mentioned in the contract it does not follow that the contract was wholly illegal and void or that the plaintiffs have no right under it. * * * It matters not that the promise was to pay in a manner not authorized by law. If payments cannot be made in bonds because their issue is ultra vires, it would be sanctioning rank injustice to hold that payment need not be made at all. Such is not the law. The contract between the parties is in force, so far as it is lawful. * * * At most the issue was un- authorized. At most there was a defect of power. The promise to give bonds to the plaintiffs in pay- ment of what they undertook to do was, therefore, at farthest only ul- tra vires; and, in such a case, though specific performance of an engagement to do a thing trans- gressive of its corporate power may not be enforced, the corporation can be held liable on its contract. Hav- ing received benefits at the expense of the other contracting party, it cannot object that it was not em- powered to perform what it prom- ised in return in the mode in which it promised to perform." Burling- ton Sav. Bank v. City of Clinton, 111 Fed. 439; City of Redondo Beach v. Gate, 136 Cal. 146, 68 Pac. 586; German Sav. & Loan Soc. v. Ramish, 138 Cal. 120, 69 Pac. 89, 70 Pac. 1067; Porter v. City of Tipton, 141 Ind. 347, 40 N. E. 802; City of Covington v. Nadaud, 20 Ky. L. R. 151, 45 S. W. 498; State v. Benton, 25 Neb. 756, 41 N. W. 953, 1068; Mittag v. Borough of Park Ridge, 61 N. J. Law, 151, 38 Atl. 750; Foley v. City of Hoboken, 61 N. J. Law, 478, 38 Atl. 833; Moses v. City of Key West, 157 N. Y. 689. 373 Fritz v. City & County of San Francisco, 132 Cal. 373, 64 Pac. 566, followed in McHugh v. City ft County of San Francisco, 132 Cal. 381, 64 Pac. 570; People v. Brislin, 80 111. 423; Boston Water-Power Co. v. City of Boston, 143 Mass. 546, 10 N. E. 318; Choate v. City of Buffalo, 167 N. Y. 597, 60 N. E. 1108, af- firming 39 App. Div. 379, 57 N. Y. Supp. 383; Johnson v. City of Mil- waukee, 88 Wis. 383. 37* City of Gladstone Y. Throop (C. C. A.) 71 Fed. 341; McHugh v. City & County of San Francisco, 132 Cal. 381, 64 Pac. 570; State v. Ames, 87 Minn. 23, 91 N. W. 18; Wheeler v. City of Plattsmouth, 7 183 ISSUANCE OF SECURITIES. 411 The rule seems to be clearly established that where the statute provides for the issuing of bonds for a specified purpose the pro- ceeds cannot be used for any other, though closely related or con- nected in its nature. 376 183. Internal improvements. As distinguished from the making of local improvements, which is the term usually applied to improvements made by municipal corporations proper, we have the construction or the aiding in the construction of works of internal improvement, the phrase usually applied to those works of general improvement made by the state itself or public quasi corporations in the exercise under lawful authority of their governmental duties. In pursuing a broad and liberal policy, the legislature or the people of the state acting in constitutional convention may de- clare certain enterprises works of internal improvement which without such characterization would ordinarily be deemed pri- vate enterprises. Where the business carried on by such enter- prises is of a public necessity or results in a greater advantage or benefit to the public than ordinary commercial or industrial en- terprises, the courts will sustain the character given to them by legislative or constitutional enactment. Under this principle we have the declaration that water grist-mills are to be regarded as works of internal improvement for the aiding or construction of which the public corporation may issue negotiable bonds. 379 Neb. 270; People v. Gravesend STB Burlington Tp. v. Beasley, 94 Sup'rs, 154 N. Y. 381; Hooker v. U. S. 310. Mr. Justice Hunt dis- Town of Greenville, 131 N. C. 472, cusses what are internal improve- 42 S. E. 141. In this case the stat- ments for which bonds may be is- ute giving a municipality authority sued by a municipality. In part he to issue bonds for improvement says: "A state house is an internal purposes was held unconstitutional improvement as is a county court as having been passed without re- house, a jail or a penitentiary cording of the yeas and nays on (Leavenworth County Com'rs v. either the second or third reading Miller, 7 Kan. 479) as much as a in the house. railroad, a canal or a bridge. A 375 state v. Benton, 25 Neb. 756, mill run by water is declared to be 41 N. W. 953, 1068. District bonds an internal improvement by the authorized for curbing and gutter- statute we are considering. A ferry ing streets cannot be issued for the falls within the same principle, and guttering and curbing of street in- so does a steam-mill. It would re- tersections. quire great nicety of reasoning to 412 POWERS. 183 This is given as an illustration of that class of enterprises ordi- narily deemed private but which may be given, although the pol- icy is questionable, a quasi public character. For all works of internal improvement as thus authorized by statute or constitu- tion, the public corporation may be authorized to incur an indebt- edness consisting of an issue of negotiable bonds. 377 give a definition of the expression 'internal improvement,' which should include a grist-mill run by water and exclude one operated by steam; or which would show that the means of transportation were more valuable to the people of Kan- sas than the means of obtaining bread. It would be poor consola- tion to the people of this town to give them the power of going in and out of the town upon a railroad while they were refused the means of grinding their wheat." Dodge County Com'rs v. Chandler, 96 U. S. 205. Toll bridge held work of internal improvement. In Osborne v. Adams County, 109 U. S. 1, affirming 106 U. S. 181, and distinguishing this case from Burl- ington Tp. v. Beasley, supra, a steam grist-mill is held not a work of internal improvement under the Nebraska statute permitting coun- ties to borrow money for such pur- poses. United States v. Dodge County Com'rs, 110 U. S. 156. But in Blair v. Cuming County, 111 U. S. 363, it is held that the improving of the water power of a river was such a work of internal improve- ment. City of Wetumpka v. Winter, 29 Ala. 651. Where internal improve- ments under state authority are spoken of, it is universally under- stood that works within the state by which the public are supposed to b benefited are intended such as improvements of highways, and channels of travel and commerce. Carter v. Cambridge & B. B. Pro- prietors, 104 Mass. 235; Union Pac. R. Co. v. Colfax County Com'rs, 4 Neb. 450; State v. Thome, 9 Neb. 458; Dawson County Com'rs v. Me- Namar, 10 Neb. 276. In Traver v. Merrick County Com'rs, 14 Neb. 327, a water grist-mill is held a work of internal improvement under act of 1869 providing for the issue of bonds for such purposes. State v. Adams County, 15 Neb. 568; Getchell v. Benton, 30 Neb. 870, 47 N. W. 468. A mill for the manufacture of beet sugar not sub- ject to public control or making sugar for toll is not an internal improvement. Thomas v. Leland, 24 Wend. (N. Y.) 65; Weismer v. Village of Douglas, 64 N. Y. 91. 377 Perkins County v. Graff, 114 Fed. 441. A canal constructed for the purpose of irrigating lands held a work of internal improvement un- der the Neb. Stat. City of Kearney v. Woodruff (C. C. A.) 115 Fed. 90, construing Comp. St. Neb. 5491, which declares that "canals and oth- er works constructed for irrigation or water power purposes or both, are hereby declared to be works of internal improvement." Hughson v. Crane, 115 Cal. 404; Greeley v. City of Jacksonville, 17 Fla. 174. The drainage of swamps, creeks and ponds around a city and the construction of sewers and wa- 184 ISSUANCE OF SECURITIES. 413 184. The power to issue and the conditions precedent to its exercise. The issue of negotiable bonds by a public corporation is not considered one of its implied or incidental powers. The author- ity must be expressly conferred by statutory or constitutional provision. In order to limit the powers of public corporations in this respect even when the authority may be expressly granted, such authority usually confers the right only upon the perform- ance by the corporation of certain conditions before such an issue can be lawfully made and therefore considered valid. These conditions ordinarily consist of prescribed formalities attending the issue. The legal authority as granted may give the right to corporate officials directly to be exercised through resolution or ordinance, 378 or certain acts may be required of them as neces- ter works held to be municipal pur- poses within charter provisions authorizing the issue of bonds for such purposes. Cummings v. Hyatt, 54 Neb. 35, 74 N. W. 411. Irrigation ditches or canals held "works of improvement" authorizing the issue of bonds in aid of corporations constructing such ditches or canals. People v. Green, 65 Barb. (N. Y.) 505. Ex- penditure of public moneys for the construction and maintenance of dykes, piers, etc., held authorized by the provisions of a municipal charter. State v. City of Toledo, 48 Ohio St. 112, 26 N. E. 1061, 11 L. R. A. 729; Redd v. Henry County Sup'rs, 31 Grat. (Va.) 695. 3"s Lehman v. City of San Diego, 73 Fed. 105. See, also, McCoy v. Briant, 53 Cal. 250, where the court said: "The ordinances as ratified by the act of the legislature pre- scribed definitely and precisely the mode, and the only mode in which the bonds could be issued and de- livered, to-wit: By a resolution of the board of trustees, directing when and to whom the bonds were to be issued and delivered nor can this requirement be regarded as merely directory, a violation of which would not impair the validity of the bonds. On the contrary it was intended as a precaution against an abuse of its power by the board of trustees and to pre- vent a fraudulent or unauthorized delivery by the clerk to a person not entitled to receive the bonds. Under the terms of the ordinance no bond could be issued or delivered except upon a resolution of the board appearing upon its minutes or the record of its proceedings thus furnishing a most important safeguard against fraud and an abuse of power." Naegely v. City of Saginaw, 101 Mich. 532; Town of Ontario v. Hill, 99 N. Y. 324. 3"9 People v. Pueblo County Com'rs, 2 Colo. 360, but see Mad- dox v. Graham, 59 Ky. (2 Mete.) 56. Wilmington, O. & E. C. R. Co. v. Onslow County Com'rs, 116 N. C. 563, 21 S. E. 205, holds that a sub- stantial compliance only is neces- sary by public officials with the POWERS. 185 sary to set in motion the agency of a general or special election. Without this preliminary official action the authority may be considered as lacking even though an election is held resulting in the required affirmative vote. 379 Or, as usually the case, the right is granted the public corporation contingent upon consent of the people, 380 thus giving an opportunity to the tax-paying in- terests to pass upon the question of incurring or an increase of indebtedness. The consent to be expressed at an election held especially for this purpose or through a majority of votes cast at a general election voting upon the question submitted. The strict performance of all such conditions precedent is considered necessary to the validity of the bonds. 381 unless the corporation is estopped through the operation of principles of law to be con- sidered in subsequent sections. 382 185. Performance of conditions precedent required of railway companies. The issue of negotiable bonds by public corporations to aid in the construction of railway lines through, into or adjoining them, has been of frequent occurrence under lawful authority, the basis provisions of a statute requiring v. Coggeshall, 21 R. I. 1, 41 Atl. 260; certain action on their part to pre- State v. Tolly, 37 S. C. 551. See, serve the integrity of bonds issued also, cases cited under 188. through the authority of a subse- ssi Douglas v. Town of Chatham, quent election. Schultze r. Man- 41 Conn. 211; Winn v. City Council Chester Tp., 61 N. J. Law, 513, 40 of Macon, 21 Ga. 2/5; Town of Mid- Atl. 589. dleport V. Aetna Life Ins. Co., 82 111. ssoKelley v. Milan, 127 U. S. 139; 562; Town of Eagle v. Kohn, 84 111. Young v. Clarendon Tp., 132 U. S. 292; Hutchinson & S. R. Co. v. King- 340; Hill v. City of Memphis, 134 man County Com'rs, 48 Kan. 70, 15 U. S. 198; Ter. v. Steele, 4 Dak. 78; L. R. A. 401; Schultze v. Manchester Dunbar v. Canyon County Com'rs, Tp., 61 N. J. Law, 513, 40 Atl. 589; 5 Idaho, 407, 49 Pac. 409; Locke v. Clarke v. City of Rochester, 24 Davison, 111 111. 19; Hull v. Mar- Barb. (N. Y.) 446; Town of Duanes- shall County, 12 Iowa, 142; Casady burgh v. Jenkins, 46 Barb. (N. Y.) v. Woodbury County, 13 Iowa, 113; 294. See, also, Id., 40 Barb. (N. Y.) Steines v. Franklin County, 48 Mo. 574; Starin v. Town of Genoa, 23 N. 167; Cotton v. Inhabitants of New Y. 439; Simpson County v. Louis- Providence, 47 N. J. Law, 401; Me- ville & N. R. Co., 14 Ky. L. R. 673, Cless v. Meekins, 117 N. C. 34; Trus- 19 S. W. 665; Ball v. Presidio Coun- tees of Goldsboro Graded School v. ty, 88 Tex. 60. Broadhurst, 109 N. C. 228; Ecroyd 382 See post, 206-212. 185 ISSUANCE OF SECURITIES. 415 of the legality of such issue being the supposed public advantage and benefit derived by the community issuing such bonds from the construction of such enterprises. 383 Railway lines are broadly regarded by the courts quasi public highways affording facilities for the rapid and economical transportation of the pro- duets of the country and its inhabitants. They are considered works of internal improvement of such a character and of such public utility and advantage as to authorize the issue of nego- tiable bonds considered with reference to use of public funds, 384 but this fact of itself does not create such legal right. Legisla- tive or constitutional authority must exist, and when this is want- ing, aid granted in the form of a negotiable bond will be re- garded illegal and therefore void. 385 The basis of the issue being as suggested it follows that if there is a failure to perform the conditions required by the act giving authority, the bonds may be regarded illegally issued and therefore void even in the hands of bona fide purchasers. 388 They may be issued when specially ass Massachusetts & S. Const. Co. Limestone County v. Rather, 48 Ala. v. Cherokee Tp., 42 Fed. 750; Chilton 433; Alley v. Adams County Sup'rs, v. Town of Gratton, 82 Fed. 873; 76 111. 101. Carpenter v. Greene County, 130 Ala. Chiniquy v. People, 78 111. 570. 613, 29 So. 194. See 147, 178, Where bonds are issued and deliver- supra, and also Elliott, Railroads, c. ed before the performance of requir- 4, where the subject is thoroughly ed conditions, this will be consid- and exhaustively treated. ered a waiver by the county. ss* City of Macon v. East Ten- Land Grant R. & T. Co. v. Davis nessee, V. & G. R. Co., 82 Ga. 501. County Com'rs, 6 Kan. 256. A vote See cases cited 147. by a county to subscribe for stock of ss 5 City of San Diego v. Higgins, the railway company and to issue 115 Cal. 170, following the principle bonds in payment therefor does not laid down in People v. Hulbert, 71 create a contract between the coun- Cal. 72. ty and the railway company en- 386 Aspinwall v. Daviess County forceable by a delivery of the bonds Com'rs, 22 How. (U. S.) 364; Gunn even when all the conditions re- v. Barry, 82 U. S. (15 Wall.) 610, quired had been performed by the 623; Harshman v. Bates County, 92 railway company. Harrington v. U. S. 569, and German Sav. Bank v. Town of Plainview, 27 Minn. 224; Franklin County, 128 U. S. 526; Bound v. Wisconsin Cent. R. Co., 45 Green v. Dyersburg, 2 Flip. 477, Fed. Wis. 543; Town of Duanesburgh v. Cas. No. 5,756; Mercer County v. Jenkins, 40 Barb. (N. Y.) 574; Cum- Provident Life & Trust Co. (C. C. A.) berland & O. R. Co. v. Barren County f2 Fed. 623; Commissioners Ct. of Ct., 73 Ky. (10 Bush) 604. 416 POWERS. 185 authorized not only for aiding in the construction of the line,*" but for the purpose of constructing within corporate limits ter- minal yards and facilities consisting of engine houses, shops, or general office buildings, 388 or the purchase of ground upon which to locate them. 389 The extent of aid granted may be dependent on mileage constructed 390 or upon the maintenance of terminal facilities within the corporate limits. 391 The condition most fre- SST Rogers v. Runyan, 9 How. Pr. (N. Y.) 248; Coleman v. Marin Coun- ty Sup'rs, 50 Cal. 493. It is not necessary to construct a line upon the route selected at the time the aid was granted. Com. v. Chesa- peake & O. R. Co., 12 Ky. L. R. 709, 15 S. W. 53; Oldtown & L. R. Co. v. Veazie, 39 Me. 571; Penobscot & K. R. Co. v. Dunn, 39 Me. 587. Smith v. County of Clark, 54 Mo. 58. The question of the legal ex- istence of the railroad corporation to which aid had been granted can- not be raised in a suit on aid bonds. Lynch v. Eastern, L. & M. R. Co., 57 Wis. 430. Aid may be granted to that railway company which shall first complete its line to a given point. The court said: "The town was clearly authorized to aid either of the companies in the construction of its road from Monroe to Gratiot and it was undoubtedly competent for the electors of the town to make it conditioned upon the event that the company receiving its aid should build its road from Monroe to Gratiot before a road should be built over the same line by the other company. * * * The only object of the electors of the town of Gratiot was to procure the construction of a line of railway from Monroe to Gratiot; they had no peculiar inter- est in the construction of the line west of the village of Gratiot, and consequently it was a matter of in- difference to them which of the two railway companies constructed such line. The object of the taxpayers of Gratiot would be as well accomplish- ed by its construction by one as by the otherof said companies." People v. Schenectady County Sup'rs, 35 Barb. (N. Y.) 415. sss Trustees of Elizabethtown r. Chesapeake, O. & S. W. R. Co., 94 Ky. 377, 22 S. W. 609; Echols v. City of Bristol, 90 Va. 165, 17 S. B. 943. 389 Converse v. City of Ft. Scott, 92 U. S. 503. soo Nevada Bank v. Steinmitz, 64 Cal. 301; Casady v. Lowry, 49 Iowa, 523; Atchison, C. & P. R. Co. r. Phillips County Com'rs, 25 Kan. 261. 89i Chicago, K. & W. R. Co. Y. Chase County Com'rs, 49 Kan. 399, 30 Pac. 456; Coe v. Caledonia & M. R. Co., 27 Minn. 197. The condition here being the location of a station within the town, the court say: "The construction of a railway into a town or village always and in- evitably operates to the peculiar ad- vantage of some, over and above the general advantage, as well as to the peculiar disadvantage of some. Yet, considerations of this kind have not prevented the legislature of this and other states, in a vast number of instances from authorizing mu- nicipal subscriptions and bonds in aid of sucL construction. This set- tles the question of public policy. It shows that the legislature has not regarded the existence of motives of 185 ISSUANCE OF SECURITIES. 417 quently to be found in acts authorizing the issue of bonds for this purpose are those fixing the time 392 and the manner 393 of the construction and use of the line or the terminal facilities upon which the issue is conditioned. Both of these elements may be regarded as the consideration of the transaction granting aid. A speedy or proper completion of the enterprise may be necessary in order that the public corporation reap the advantage and bene- personal and private advantage of the kinds mentioned as furnishing any reason why such subscriptions and bonds should not be authorized and voted. In our opinion the con- dition as to the location of the depot was a proper condition, and in no way invalidated the petition or the vote. It may be added that there is nothing in this condition which binds the company to refrain from locating such other depots in, or in the vicinity of the village as the convenience of the public may re- quire." State v. City of Minneap- olis, 32 Minn. 501. 392 Buffalo & J. R. Co. v. Falconer, 103 U. S. 821; German Sav. Bank v. Franklin County, 128 U. S. 526, and cases cited by counsel on both sides. The time originally fixed for the completion of the road and which was made a condition precedent was held to control the validity of the bonds issued, and the fact that an extension of this time was made by certain public officials could not change this. Grattan Tp. v. Chilton (C. C. A.) 97 Fed. 145, and cases cited in majority opinion. Eddy v. People, 127 111. 428. The power to extend the time originally fixed for the completion of the road in this case it was held did not ex- ist. Tipton County Com'rs v. Indian- apolis, P. & C. R. Co., 89 Ind. 101; Nixon v. Campbell, 106 Ind. 47; State v. Wheadon, 39 Ind. 520. The time required by Ind. St. within which a railway company to which aid has been granted by a public corporation shall begin work, com- mences with the date of the order by the county commissioners for the levying of the aid tax. McManus v. Duluth, C. & N. R. Co., 51 Minn. 30. A delay in this case, caused by the neglect of the railway company to secure the right to cross another railroad, held not excusable. Sawyer v. Manchester & K. R. Co., 62 N. H. 135. Where the record failed to show the time with- in which the road should be com- pleted, its subsequent amendment, it was held, could not defeat the claim of the road to the aid granted, although it was not completed with- in the time as originally intended. West Virginia & P. R. Co. v. Har- rison County Ct, 47 W. Va. 273, 34 S. E. 786. The right to make a sub- scription conditional discussed and determined. 393 Taylor v. City of Ypsilanti, 105 U. S. 60; Purdy v. Town of Lansing, 128 U. S. 557. The adoption of an entire route held necessary. Mercer County v. Provident Life & Trust Co. (C. C. A.) 72 Fed. 623; Grattan Tp. v. Chilton (C. C. A.) 97 Fed. 145; Bras v. McConnell, 114 Iowa, 401, 87 N. W. 290; Falconer v. Buf- falo & J. R. Co., 69 N. Y. 491; Os- wego County Sav. Bank v. Town of Genoa, 66 App. Div. 330, 72 N. Y. Supp. 786. Abb. Corp. 27. POWERS. 185 fits supposedly derived, 304 and if the railway company fails in either of these respects the courts have generally held that there exists such a failure to perform the conditions precedent pre- scribed as will render void the bonds issued. The validity of these bonds, however, may be sustained through the doctrine of estoppel or recitals to be subsequently considered. The courts do not generally require more than a substantial compliance with such conditions. If by the act the railway is required to be built and in use by a certain date, such result at approximately that time will be considered sufficient, and the same principle will apply so far as the manner of the construction of the road is concerned. The law in this respect looks to the fact that there has been a substantial compliance with required conditions ; that the public corporation has received the benefits it expected and, therefore, although there may be a failure to technically comply with conditions precedent, yet such failure should not be avail- able to the public corporation as a defense in an action brought to enforce the payment of either the principal or interest of such bonds in the hands of bona fide holders. 395 9*City of Macon v. East Tennes- see, V. & G. R. Co., 82 Ga. 501; Thomas v. County of Morgan, 59 111. 479; Chicago, P. & S. W. R. Co. v. Town of Marseilles, 84 111. 145; Can- tillon Y. Dubuque & N. W. R. Co. (Iowa) 35 N. W. 620; Cedar Rapids, I. F. ft N. W. R. Co. v. Elseffer, 84 Iowa, 510, 51 N. W. 27; Baltimore & D. P. R. Co. v. Pumphrey, 74 Md. 86, 21 Atl. 559; Town of Birch Cooley v. First Nat. Bank, 86 Minn. 385; Clark v. Town of Rosedale, 70 Miss. 542; Midland Tp. v. County Board of Gage County, 37 Neb. 582; Oswego County Sav. Bank v. Town of Genoa, 66 App. Div. 330, 72 N. Y. Supp. 786 ; Murf reesboro R. Co. v. Hertford County Com'rs, 108 N. C. 56, 12 S. E. 952; State v. City of Morristown, 93 Tenn. 239, 24 S. W. 13; Ravenswood, S. & G. R. Co. r. Town of Ravenswood, 41 W. Va. 732, 32 L. R. A. 416; Neale v. Wood Coun- ty Ct., 43 W. Va. 90, 27 S. E. 310. Conditions as approved by popular vote cannot be subsequently changed. West Virginia & P. R. Co. v. Har- rison County Ct., 47 W. Va, 273, 34 S. E. 786; Town of Platteville v. Galena & S. W. R. Co., 43 Wis. 493; State v. Common Council of Toma- hawk, 96 Wis. 73, 71 N. W. 86. Railroad aid bonds held in escrow awaiting the completion of a line of road in aid of which they werei granted should not be considered an indebtedness of the city until after their delivery. 395 Coleman Y. Marin County Sup'rs, 50 Cal. 493; Stockton & V. R. Co. v. City of Stockton, 51 Cal. 334; Nevada Bank v. Steinmitz, 64 Cal. 301; People v. Holden, 82 111. 93; Nixon v. Campbell, 106 Ind. 47. The court here held that if the prescribed expenditure had been made within the township limits a forfeiture of 8 185 ISSUANCE OF SECURITIES. The principles as stated in this section apply equally to do- nations of money or subscriptions to the capital stock of the cor- poration and the issue of negotiable bonds. Some of the cases the aid granted could not be declared although the road had failed to com- plete its line within the time pre- scribed. Earner v. Bayless, 134 Ind. 600. To be "completed" means to be in a condition to be operated and of benefit to the people who are to pay the bonds. Pittsburgh, C., C. & St. L. R. Co. v. Harden, 137 Ind. 486, 37 N. E. 324. But see Lamb v. An- derson, 54 Iowa, 190, holding that a railroad company cannot perform the required condition as to the con- struction of its line by the purchase of another road to complete it to the point specified, and also as holding the same Iowa, M. & N. P. R. Co. v. Schenck, 56 Iowa, 626; Courtright v. Deeds, 37 Iowa, 503; First Nat. Bank of Cedar Rapids v. Hendrie, 49 Iowa, 403; Chicago, K. & W. R. Co. v. Makepeace, 44 Kan. 676; Chicago, K. & W. R. Co. v. Chase County Com'rs, 49 Kan. 399; Guillory v. Avoyelles R. Co., 104 La. 11, 28 So. 899; State v. City of Hastings, 24 Minn. 78; McManus v. Duluth, C. & N. R. Co., 51 Minn. 30. A delay of two weeks in the completion of a line was not held a substantial com- pliance and the aid granted was for- feited. Town of Birch Cooley v. First Nat. Bank of Minneapolis, 86 Minn. 385. Although there was a substan- tial compliance with the required conditions for the granting of aid, the court, quite contrary to the com- monly accepted rule, held the rail- road company not entitled to the aid bonds issued. Pacific R. Co. v. Seely, 45 Mo. 212; Workman v. Campbell, 46 Mo. 306; Missouri Pac. R. Co. v. Tygard, 84 Mo. 263. "The road was fully com- pleted for all purposes of transpor- tation of passengers and freight and put into full operation and this was the evident object which the parties had in view. The terms of the con- tract are to 'complete and put in operation,' and this was done, though the company did not own one mile of the track which it then used. This defense, we conclude, is with- out merit." Townsend v. Lamb, 14 Neb. 324; Virginia & T. R. Co. v. Lyon County Com'rs, 6 Nev. 68. A substantial compliance with the terms of the statute granting aid with reference to the point of construction of the road does not entitle the company to the aid granted even though a complete compliance would be im- practicable. The court say: "But counsel for plaintiff claim that the condition has been substantially complied with and to that end offer evidence to prove that to have built the road on a line passing the point named would have rendered it an impracticable road for working pur- poses, in other words, as is claimed not a first-class road; and that the point touched is the nearest prac- ticable point. * * * But it is not a substantial compliance with a con- tract to perform another and dif- ferent matter and the fact that to have built a road as directed would have been to ruin it simply proves that the plaintiff agreed to do some- thing which it either could not do or deemed it better not to do; but it 420 POWERS. 185 cited refer to such acts rather than the issue of negotiable bonds. Subscriptions to the capital stock of a corporation or aid voted in the form of negotiable bonds is not usually annulled by the consolidation of the line to which the aid is granted with another already constructed or in process of construction. 396 In connec- tion with this subject it is well to distinguish, however, between a failure to perform conditions precedent as required by the terms of the authority, and promises or oral conditions made by officers or agents of the railway at the time when the aid is so- licited and having for their purpose the inducing of such aid. The performance of conditions precedent required by law is nec- essary to the validity of the bonds. The fact that promises or oral agreements are not fulfilled when not made a part of the authority does not, necessarily, affect their validity in the hands of bona fide holders. 397 was bound to do that thing substan- tially before it could claim any per- formance from defendants." Jack- son v. Stockbridge, 29 Tex. 394. 396 Bates County v. Winters, 112 U. S. 325; Livingston County v. First Nat. Bank, 128 U. S. 102, 9 Sup. Ct. 18; Chicago, K. & W. R. Co. v. Staf- ford County Com'rs, 36 Kan. 121, 12 Pac. 593; Southern Kansas & P. R. Co. v. Towner, 41 Kan. 72; Vicks- burg, S. & P. R. Co. v. Scott, 52 La. Ann. 512; Tagart v. Northern Cent. R. Co., 29 Md. 557. A consolidation of two railroad companies extin- guishes all previously existing ar- rangements for the conversion of bonds into stock of one of the roads at the will of the holder. Farnham v. Benedict, 107 N. Y. 159, 13 N. E. 784. Municipal bonds issued to aid the construction of a line of railway become void when the charter of such corporation ex- pires by limitation before the de- livery of the bonds. Town of Mt. Morris v. Thomas. 158 N. Y. 450, affirming Town of Mt. Morris v. King, 8 App. Div. 495, 40 N. Y. Supp. 709; Wright v. Milwaukee & St. P. R. Co., 25 Wis. 46; Lynch v. Eastern, L. & M. R. Co., 57 Wis. 430. 397 Town of Brooklyn v. Aetna Life Ins. Co., 99 U. S. 362, where the au- thorities of a town, duly authorized, subscribed in its behalf for stock in a railroad company and issued coupon bonds in payment therefor, the town, when sued by a bona fide purchaser for value of the coupon before ma- turity, cannot set up as a defense that the company disregarded its promise to construct the road, or that the town officers delivered the bonds in violation of special condi- tions not required by statute and of which they had no knowledge or no- tice. Carpenter v. Greene County, 130 Ala. 613, 29 So. 194; Town of Eagle v. Kohn, 84 111. 292. The provision of act April 16th, 1869, that mu- nicipal railroad aid bonds or sub- scriptions shall not be valid and binding until a compliance with the conditions precedent prescribed by the act does not make a perform- ance of the conditions before the 186 a ISSUANCE OF SECURITIES. 421 186. Conditions precedent to issue. (a) The notice or order for an election. The legal author- ity granting the right to a public corporation to issue nego- tiable bonds for any of the purposes considered in the preced- ing sections, as suggested in section 184, provides, ordinarily, for its contingent exercise upon consent of the people at a gen- eral or special election held for such purpose. The reason, ap- parently the basis of the provisions calling for a special election, being that the expression of the taxpayers' choice will be less affected by political or other considerations than if the question were passed upon at a general election involving the determina- tion of other issues than that of the granting of aid. 398 Irrespec- subscription or issuance of the bonds essential to their validity, a sub- sequent performance thereof being sufficient. Chicago, K. & W. R. Co. v. Ozark Tp., 46 Kan. 415, 26 Pac. 710; Kan- sas City & P. R. Co. v. Rich Tp., 45 Kan. 275. In State v. City of Minne- apolis, 32 Minn. 501, the city voted to issue bonds in aid of a railroad provided the terminus, general of- fices, and headquarters should be lo- cated there. It was held that the location of the operating headquar- ters of the road must be there estab- lished before the city could be com- pelled by mandamus to issue the bonds. See, also, Wullenwaber v. Dunigan, 30 Neb. 877, 13 L. R. A. 811, where the railroad company rep- resented as an inducement that it would locate its depot on a certain section and after the electors had voted the aid bonds the depot was located on another section, the court restrained the issue of the bonds. People v. Morgan, 55 N. Y. 587. Where bonds have not been issued or delivered and the conditions have not been performed as agreed, their issue will be restrained. Jackson County Sup'rs v. Brush, 77 111. 59; Wullenwaber v. Dunigan, 30 Neb. 877, 13 L. R. A. 811; Virginia & T. R. Co. v. Lyon County Com'rs, 6 Nev. 68; Simonton, Mun. Bonds, 274. The enabling act usually designates the person or tribunal who shall have the power to determine when conditions precedent have been per- formed. This is an official trust and its performance cannot be delegated. Jackson County Sup'rs v. Brush, 77 111. 59; Belo v. Forsythe County Com'rs 76 N. C. 489; Simonton, Mun. Bonds, p. 375, 271. Where the enabling act does not designate any person or tribunal to determine whether the conditions have been performed, the body au- thorized to issue the bonds must necessarily determine the question. Knox County Com'rs v. Aspinwall, 21 How. (U. S.) 539; Knox County Com'rs v. Nichols, 14 Ohio St. 260; Simonton, Mun. Bonds, p. 376, 272. 398Coler v. Wyandot County, 3 Dill. 391, Fed. Cas. No. 2,987; State v. Benton, 29 Neb. 460; Town of Duanesburgh v. Jenkins, 46 Barb. (N. Y.) 294. Where bonds have have been issued by a town without the consent of the persons required 422 POWERS. 186a tive, however, of this fact, the statutes require that notice shall be given in the form prescribed, of the purpose of the election, and the questions to be submitted to the voters at such election. 398 We have in connection with this subject, contrary opinions as to the effect of an insufficient notice upon the validity of bondi voted to be issued at the election held pursuant thereto, the su- preme court of the United States holding that the law will pre- sume the giving of proper notices in such cases under the rule that where the performance of a prior act is necessary to the legality of a subsequent act proof of the latter carries with it a presumption of the due performance of the former. 400 The de- termination of the question may, apparently, turn upon the fact of the actual delivery of the bonds to bona fide purchasers, the cases holding uniformly that where the aid has been voted and pursuant to such authority the 1 proper officials have executed and by statute, they are void, at least in the hands of those to whom they are issued if not in the hands of every subsequent holder. Starin v. Town of Genoa, 23 N. Y. 439. A special statute authorized a town to borrow money, but provided that the officers should have no pow- er to borrow until they had first filed the written assent of two-thirds of the resident taxpayers named in the last tax list, with an affidavit that the persons whose assents are attached are two-thirds, etc. Held that these prerequisites not being strictly complied with, the bonds is- sued for money so borrowed were void. 389 Thompson Houston Elec. Co. v. City of Newton, 42 Fed. 723; Brown v. Ingalls Tp., 81 Fed. 485; People v. Baker, 83 Cal. 149; People v. Counts, 89 Cal. 15; Derby v. City of Modesto, 104 Cal. 515; Cullen v. Glendora Water Co. 113 Cal. 503; Murphy v. City of San Luis Obispo, 119 Cal. 626; Bowen v. Town of Greenesboro, 79 Ga. 709; Ponder v. City of Forsyth, 96 Ga. 572. Code of Georgia 1895 requiring notice of a municipal election for the issue of bonds to specify "what amount of bonds are to be issued, for what pur- pose, * * * how much principal and interest to be paid annually and when to be fully paid off" does not require that the notice shall state the precise sum to be annually paid as interest, when the facts stated furnish a basis by which a calcula- tion can be readily made of the exact amount of interest to be so paid. City of Perry v. Norwood, 99 Ga. 300; Callaghan v. Town of Alexan- dria, 52 La. Ann. 1013; Hubbard T. Woodsum, 87 Me. 88; Truelsen v. City of Duluth, 61 Minn. 48; State v. Babcock, 21 Neb. 599; North v. Platte County, 29 Neb. 447; Cook v. City of Beatrice, 32 Neb. 80; Schultze v. Manchester Tp., 61 N. J. Law, 513; Baker v. City of Seattle, 2 Wash. St. 576; Packwood v. Kit- titas County, 15 Wash. 88, 33 L. R. A. 673; McVichie v. Town of Knight, 82 Wis. 137. 4 Knox County v. Ninth Nat. Bank, 147 U. S. 91. 186b ISSUANCE OF SECURITIES. 423 delivered the bonds to bona fide purchasers, independent of the doctrines of estoppel or recitals the insufficiency or invalidity of the notice will not affect their legality. 401 If, however, they still remain undelivered in the hands of the public officials, their de- livery may be restrained by proper proceedings. 402 The legality of all subsequent proceedings, including, of course, the validity of bonds issued, has been sustained in an indirect attack upon the sufficiency of the notice either as to its form or the manner of its service or publication, upon the ground that the regularity or sufficiency of the notice could not be raised in a collateral way, the suit in question being upon the bonds issued at the election called by such notice. 403 (b) Its form. Statutes generally prescribe the form of the notice or order calling for an election. Their provisions are con- 401 Knox County Com'rs v. Aspin- wall, 21 How. (U. S.) 539, is the leading case on this question. Here bonds were issued in payment of a railroad aid subscription and in an action by a bona fide holder the de- fense was urged that notice of elec- tion was given by the board of com- missioners instead of by the sheriff of the county as required by the en- abling act. The court held them valid in the hands of bona fide hold- ers. In New Jersey and Missouri it has been held that in absence of recitals of any kind the bonds are good in the hands of bona fide hold- ers. Flagg v. City of Palmyra, 33 Mo. 440; Barrett v. Schuyler County Ct., 44 Mo. 197; Mutual Ben. Life Ins. Co. v. City of Elizabeth, 42 N. J. Law, 235; Cotton v. Inhabitants of New Providence, 47 N. J. Law, 401. Simonton, Mun. Bonds, 194, 195, and notes. 402 Knox County v. Ninth Nat. Bank, 147 U. S. 91; Skinner v. City of Santa Rosa, 107 Cal. 464, 40 Pac. 742, 29 L. R. A. 512. A notice of election provided for an issue of bonds "payable in gold or lawful money" and with interest payable "annually"; the bonds as issued were payable in "gold coin of the present standard of weight and fineness" and with interest "semi-annually." The court held the bonds invalid when the question was raised before their delivery to purchasers. City of Athens v. Hemerick, 89 Ga. 674; Hauswirth v. Mueller, 25 Mont. 156, 64 Pac. 324. The notice in this case failed to state the place c holding the election and it was held insufficient when attacked before the issue of the bonds authorized at the election held thereunder. 403 Knox County Com'rs v. Aspin- wall, 21 How. (U. S.) 539; Knox County Com'rs v. Wallace, 21 How. (U. S.) 546; Thatcher v. People, 91 111. 240. When an election was held purporting to authorize the issue of bonds for the purpose of building a school house, but the notice of such election omitted to state or give any information that such question was to be voted on, it was held that a levy of taxes based upon such pretended election was without au- thority and void. 424 POWERS. 186b sidered mandatory, at least so far as the essentials of the notice are concerned, 404 but not the precise wording or phraseology. The test of the sufficiency or validity of a notice is not whether the words and punctuation as prescribed by the statutes were used, unless so required, but whether the voters at the election held pursuant to such notice understood the questions submitted to them. 405 If this is clearly expressed in unmistakable language *o* Baltimore & D. P. R. Co. v. Pumphrey, 74 Md. 86, 21 Atl. 559. 405 in National Bank of Commerce r. Town of Grenada, 41 Fed. 87, the notice published called for an elec- tion on the proposition to issue wa- terworks bonds. The ordinance the basis of the notice showed that the question to be submitted was one relative to refunding the floating in- debtedness of the municipality. The court held the bonds valid. Brown v. Ingalls Tp., 81 Fed. 485. Here the court said that the notice was sufficient if it contained the informa- tion necessary to enable the electors to pass upon and determine intelli- gently the question submitted. People v. Counts, 89 Cal. 15, 26 Pac. 612; City of San Luis Obispo v. Haskin, 91 Cal. 549. See Brown v. Carl, 111 Iowa, 608, 82 N. W. 1033, for a proposition submitted to the electors which was held misleading. Derby v. City of Modesto, 104 Cal. 515; Bowen v. Town of Greensboro, 79 Ga. 709, 4 S. E. 159. Notice held Insufficient in not stating the amount of bonds, the rate of interest, the proportion of principal and interest to be paid annually, and further be- cause not published for thirty days prior to the election, as required by Ga. Code, 508i. See, also, City of Athens v. Hemerick, 89 Ga. 674. Smith T. City of Dublin, 113 Ga. 833, 39 S. E. 327. The notice here held insufficient under Georgia Code. Burges v. Mabin, 70 Iowa, 633, 27 N. W. 464, followed by Yarish v. Cedar Rapids, I. F. & N. W. R. Co., 72 Iowa, 556, 34 N. W. 417. Tha court also held in this case that a notice specifying the point to which the railway company shall have its line of road "ironed and cars run- ning thereon" complies with the' Iowa statutes requiring the notice to specify to what point ihe road shall be "fully completed." Stone v. Gregory, 23 Ky. L. R. 1, 61 S. W. 1002; Hamilton v. Village of Detroit, 83 Minn. 119, 85 N. W. 933; State v. School Dist. No. 1 of Cascade County, 15 Mont. 133, 38 Pac. 462. A notice of election not stating the rate of interest at the time when the proposed bonds were to become payable and redeemable held insufficient under Comp. St. 1950 as amended by Act Feb. 14, 1893. Chicago, B. & Q. R. Co. v. Village of Wilber, 63 Neb. 624, 88 N. W. 660. The notice was held sufficiently definite where a maximum amount of bonds was named but giving the vil- lage the option to issue less. Weston v. City of Newburgh, 67 Hun, 127, 22 N. Y. Supp. 22; Cart- wright v. Village of Sing Sing, 46 Hun (N. Y.) 548; Taylor v. Green- ville County Sup'rs, 86 Va. 506; Neale v. Wood County Ct, 43 W. Va. 90, 27 S. E. 370; McBryde v. City of Montesano, 7 Wash. 69. It is not 186c ISSUANCE OF SECURITIES. 425 in the notice, it will be held sufficient, and, therefore, all subse- quent proceedings had thereunder, valid. The notice or order, unless required by statute, need not contain the name of the cor- poration to which the proposed aid is to be given, 406 though a notice calling for alternative aid in favor of several roads has been held insufficient and the election void. 407 In Kansas, how- ever, the authorities hold that some existing corporation must be named in the election proceedings as the recipient of the proposed aid. 408 (c) Its service. The service or publication of the notice or order calling the election must be made in the manner and for the time required by law if such provisions are to be found. If there is a failure to publish or serve for the time required, the election held in pursuance may not be regarded as legal, though the pre- sumption that it is legal usually exists. 409 This presumption, how- necessary that the ordinance itself providing for the purchase of water- works should be set out in full in the election notice where the latter contains a fair statement of the matters to be voted upon. Seymour v. City of Tacoma, 6 Wash. 138, 32 Pac. 1077. Under the provisions of a city charter requir- ing all ordinances to be published for three days consecutively, a notice of an election required to be publish- ed for thirty days need not contain such ordinance but only a fair state- ment of its contents. 406 Block v. Bourbon County Com'rs, 99 U. S. 686; Ninth Nat. Bank v. Knox County, 37 Fed. 75. The court here held that where the proposed route was described with reasonable certainty it would be suf- ficient. National Life Ins. Co. v. Board of Education of Huron (C. C. A.) 62 Fed. 778; Clapp v. Otoe County (C. C. A.) 104 Fed. 473. 407 Christian County Ct. v. Smith, 11 Ky. L. R. 834, 12 S. W. 134, 13 S. W. 276, an election at which the question of subscribing to the capital stock of two different railroad com- panies was submitted: held null and void. State v. Roggen, 22 Neb. 118, 34 N. W. 108; Williams v. People, 132 111. 574, 24 N. E. 647. Bonds in the hands of innocent purchasers held good though authorized at an elec- tion where the question submitted to the voters was the issuing of rail- road aid bonds to any railroad that may be built within two certain points within the next five years. 408 Lewis v. Bourbon County Com'rs, 12 Kan. 186. 409 in Humboldt Tp. v. Long, 92 U. S. 642, where notice was not given the required length of time, the court says: "It is plain that the bonds are not invalid, because all the no- tice of the popular election was not given which the legislative act di- rected. The election was a step in the process of execution of the pow- er granted to issue bonds in pay- ment of a municipal subscription to the stock of a railroad company. It did not itself confer the power. 426 POWERS. 186c ever, does not follow when there is a failure to publish or post the notice. 410 Some cases hold that the burden of proof rests upon the purchaser of bonds issued by authority of such election to prove the sufficiency of the notice both as to its form and the Whether that step had been taken or not, and whether the election had been regularly conducted with suffi- cient notice and whether the requi- site majority of votes had been cast in favor of a subscription and consequent bond issue, were ques- tions which the law submitted to the board of county commission- ers and which it was necessary for them to answer before they could act. In the present case, the board passed upon them and issued the bonds, asserting by the recitals that they were issued 'in pursuance of and in accordance with the act of the legislature.' Thus, the plaintiff below took them without knowledge of any irregularities in the process through which the legislative author- ity was exercised, and relying upon the assurance given by the board, that the bonds had been issued in accordance with the law. In his hands, therefore, they are valid in- struments." Knox County v. Ninth Nat. Bank, 147 U. S. 91; Village of Highland Park v. McAlpine, 117 Mich. 666; Warsop v. City of Hastings, 22 Minn. 438. An ordinance designated the 15th day of May as the time for holding an election, and directed the city clerk to give ten days' no- tice thereof by publication. It was first published May 5th when it took effect. The notice of election being published simultaneously with the publication of the ordinance was held sufficient. Hamilton v. Village of Detroit, 83 Minn. 119, 85 N. W. 933. Notice of the election, required by statute to be either published or posted, was posted. This was held sufficient al- though the village council ordered the notice both printed and publish- ed; the failure to publish in accord- ance with the resolution not being held fatal to validity, the statutes of the state being fully complied with by the proper posting of the notice. Kemp v. Town of Hazlehurst, 80 Miss. 443, 31 So. 908; State v. Bab- cock, 25 Neb. 500. A statutory re- quirement of submission by publi- cation is jurisdictional and a single publication not held sufficient where the statutes require this for at least four weeks in some newspaper pub- lished in the county. Mittag v. Borough of Park Ridge, 61 N. J. Law, 151, 38 Atl. 750. Less notice than that required by statute renders void an election held pursuant to such notice. Culver v. Village of Ft. Edward, 8 Hun (N. Y.) 340; People v. Trustees of Village of Ft. Edward, 70 N. Y. 28; Cleveland v. City Council of Spartanburg, 54 S. C. 83, 31 S. E. 871. A statutory provision that "at least three weeks notice by advertise- ment in one of the papers of such city of the time and of the names of managers appointed to conduct the election" is satisfied by a single publication appearing three weeks previous to the election. Baker v. City of Seattle, 2 Wash. St. 576, 27 Pac. 462. 410 Town of Clarksdale v. Broad- dus, 77 Miss. 667, 28 So. 954. 187 ISSUANCE OF SECURITIES. 427 time and manner of its service or publication, but these form an exception to the general rule. 411 187. Petition. The holding of an election at which is submitted the question of granting railroad aid bonds is frequently contingent, not upon the giving 1 of the notice required by the statute or action by public officials, but upon the filing of a petition signed by a requi- site number of qualified voters or electors of the taxing dis- trict. 412 The requirements of such petition and the right of in- dividuals to sign is generally prescribed by statute and no gen- eral rule can be stated which will apply in all cases. Its filing, however, signed by the proper number of qualified petitioners, is held to be jurisdictional and the basis of the validity of all sub- sequent proceedings. 413 411 Post v. City of Pulaski, 47 Fed. 282; City of Santa Cruz v. Waite (C. C. A.) 98 Fed. 387; Williams v. People, 132 111. 574, 24 N. E. 647; Choisser v. People, 140 111. 21, 29 N. E. 546. 412 Kline v. City Council of Strea- tor, 78 111. App. 42. If a proposition to build a bridge and issue bonds for the same is sanctioned by a ma- jority of the legal voters of the city, either by a petition signed by them or at an election duly called, it is sufficient. Young v. Webster City & S. W. R. Co., 75 Iowa, 140; Berkley v. Board of Education of Lexington, 22 Ky. L. R. 638, 58 S. W. 506; Hamilton v. Village of Detroit, 85 Minn. 83. One not owning real estate in his own name in a village and residing on land owned by his wife, held not a freeholder within the meaning of Minn. Laws 1893, c. 200. State v. School Dist. No. 9, 10 Neb. 544; Hoxie v. Scott, 45 Neb. 199; Town of Cherry Creek v. Becker, 50 Hun, 601, 2 N. Y. Supp. 514; People v. Sawyer, 52 N. Y. 296. A signer has the right to withdraw his name from such petition. Town of Solon v. Williamsburgh Sav. Bank, 114 N. Y. 122; State v. Town of Newberry, 47 S. C. 418; Cleveland v. City Coun- cil of Spartanburg, 54 S. C. 83. 413 Chicago, K. & W. R. Co. v. Chase County Com'rs, 43 Kan. 760. In Craig v. Town of Andes, 93 N. Y. 405, it was held that the consent of the taxpayers must be unqualified and unconditional and their petition absolute in form, in order to confer jurisdiction upon a county judge. In this case about one-fourth of the petitioners inserted a condition in the petition that the road should be located in a certain place. The court said: "The statute confers no power upon the taxpayer to indicate or se- cure a railroad location to suit his convenience or benefit his property, but for the advantage of all the town." Hoxie v. Scott, 45 Neb. 199; Cum- mings v. Hyatt, 54 Neb. 35. A mar- ried woman may be a freeholder and 428 POWERS. 187 If a petition is lacking or is deficient, either in form or sig- natures, it will not be held as giving the right to public officials to call an election at which the question of proposed aid is to be .passed upon. The petition is the basis of official action regard- ing the proposed election. 414 Although official action upon such a petition for an election is considered by the courts discretion- ary in a large measure, yet 'officials required to act cannot arbitrarily refuse to call the election as petitioned. 415 A liberal qualified under the statute to sign a petition for an election to pass upon an issue of municipal bonds. Simonton, Mun. Bonds, 65. "When a taxpayer has signed a pe- tion he may revoke it if he does so before the judge or other officer to whom it is intended to be presented acquires the right to act upon it, but the withdrawal must be made before, and not after, the hearing on the petition." Noble v. City of Vin- cennes, 42 Ind. 125; People v. Hen- shaw, 61 Barb. (N. Y.) 409; Town of Springport v. Teutonia Sav. Bank, 84 N. Y. 403. Contra, Town of Andes v. Ely, 158 U. S. 312; Biddle v. Borough of Riverton, 58 N. J. Law, 289, 33 Atl. 279; Calhoun v. Millard, 121 N. Y. 69, 8 L. R. A. 248. 4" Rich v. Mentz Tp., 134 U. S. 632. A petition not complying with the statute confers no power on the county judge to issue rail- road aid bonds. Town of Andes v. Ely, 158 U. S. 312. The fact that some of the signatures attached to a petition to the county judge are conditional does not deprive him of his jurisdiction, and his deter- mination in favor of the issue of bonds is conclusive until legally reversed. Whiting v. Town of Potter, 18 Blatchf. 165, 2 Fed. 517; People v. Cline, 63 111. 394. None of the sign- ers to the petition in this case were legal voters as required by law. The company in aid of which the bonds were issued was cognizant of this fact and it was held that the municipality could not be compelled to issue them. Noble v. City of Vincennes, 42 Ind. 125. The court held here that a remonstrance to the granting of aid operated to withdraw the names of the remonstrants from the petition previously signed by them. Clark v. Town of Noblesville, 44 Ind. 83. Petitions not held necessary in in- corporated towns. Taxpayers of Webster Parish v. Police Jury, 52 La. Ann. 465; Ham- ilton v. Village of Detroit, 85 Minn. 83; Schultze v. Manchester Tp., 61 N. J. Law, 513, 40 Atl. 589; Biddle v. Borough of Riverton, 58 N. J. Law, 289, 33 Atl. 279. The with- drawal from the petition of a suf- ficient number of the petitioners to reduce the amount of taxable prop- erty to less than that required by law destroys the authority of of- ficials to proceed upon such petition. People v. Smith, 55 N. Y. 135. 415 State v. Conrad, 147 Mo. 654, 49 S. W. 857; State v. Reno County Com'rs, 38 Kan. 317, 16 Pac. 337. 4i Jussen v. Lake County Com'rs, 95 Ind. 567; Claybrook v. Rocking- ham County Com'rs, 114 N. C. 453, 19 S. E. 593; Kansas City & P. R. Co. v. Rich Tp., 45 Kan. 275, 25 g 188 ISSUANCE OF SECURITIES. 429 rule of construction will be followed in determining the effect of such petition, and where it is not so defective or ambiguous as to mislead anyone, subsequent proceedings held thereunder will not be invalid. 418 188. The calling of an election by ordinance. The right existing in a public corporation to issue negotiable bonds based upon a grant of legislative power is usually exer- cised, as already suggested in a preceding section, 417 by the peo- ple at an election held to vote upon the questions submitted, including that of the issue of bonds. 418 This election may be called by notice pursuant to an order of a quasi judicial body or upon the passage of an ordinance 419 or resolution 420 by the Pac. 595; In De Forth v. Wisconsin & M. R. ( 52 Wis. 320, it was held that procuring and affixing signa- tures on Sunday was "business" and unlawful, and conferred no au- thority upon the supervisors to is- sue bonds. *!" Berkley v. Board of Education of Lexington, 22 Ky. L. R. 638, 58 S. W. 506. See, also, cases cited un- der 184. s Calhoun County Sup'rs v. Gal- braith, 99 U. S. 214; Brown v. Carl, 111 Iowa, 608, 82 N. W. 1033; Tur- ner v. Woodson County Com'rs, 27 Kan. 314; Turpin v. Madison Coun- ty Fiscal Ct., 20 Ky. L. R. 1131, 48 S. W. 1085. A second election au- thorizing the issue of bonds valid although the same question was submitted to the voters at a previ- ous election, the officials failing to act under the authority then grant- ed. Callaghan v. Town of Alexandria, 52 La. Ann. 1013; Kemp v. Town of Haslehurst, 80 Miss. 443, 31 So. 908; Town of Plainview v. Winona & St. P. R. Co., 36 Minn. 505; Union Bank v. Town of Oxford Com'rs, 116 N. C. 339, 21 S. E. 410; Bell v. Borough of Waynesboro, 195 Pa. 299. The incurring of indebtedness by the proper officials without authority from the electors can be subsequent- ly ratified by them. Ecroyd v. Cog- geshall, 21 R. I. 1, 41 Atl. 260; Mc- Creight v. City of Camden, 49 S. C. 78, 26 S. E. 984; State v. Tolly, 37 S. C. 551, 16 S. E. 195; Conklin v. City of El Paso (Tex. Civ. App.) 44 S. W. 879; Estey v. Starr, 56 Vt. 690. A town may rescind aid voted a railroad when no rights of third parties have intervened and nothing has been done. Davis v. Wayne County Ct., 38 W. Va. 104. See, also, cases in note, 51 Am. St. Rep. 844-848. 9 National Bank of Commerce v. Town of Grenada, 44 Fed. 262. "It is true that section 3419 of the Col- orado statute which provides for the funding of the debts of towns does not in terms say that the submission to the qualified voters of the ques- tions of funding and the order di- recting the issue of the bonds shall be by ordinance. But an examina- tion of the whole statute concerning towns and cities has satisfied my mind beyond a doubt, that it was in 430 TOWERS. 188 proper legislative body of the corporation. Whatever the mode may be as prescribed by law for the calling of the election, whether by notice, petition or ordinance, it will not be considered valid unless the statutory requirements are followed. 421 The le- gality of the election establishes the validity of the bonds then voted, unless, through the operation of the doctrine of recitajs, the corporation is estopped from denying this. Where the elec- tion is called by ordinance, the formalities required, so far as of record for holding the election, must be followed strictly to give legal effect to subsequent steps. 422 the contemplation of the law mak- ers, and Is a necessary deduction from the tenor of the whole act that wherever the governing body of such municipalities is empowered to create a debt on the whole constit- uency, or to take action looking to the issue of municipal bonds, it should proceed in the more formal and solemn mode of an ordinance." Irwin v. Lowe, 89 Ind. 540; Bills v. City of Goshen, 117 Ind. 221, 3 L. R. A. 261; Ranney v. Baeder, 60 Mo. 600. 420 Atchison Board of Education v. De Kay, 148 U. S. 591; City of Alma v. Guaranty Sav. Bank (C. C. A.) 60 Fed. 203. Where there is nothing in the statutes expressly re- quiring the passage of an ordinance as preliminary to an election, the fact that the question was submit- ted to the electors by resolution does not invalidate the bonds. The court say: "The law is well settled that a municipal corporation may declare its will as to matters within the scope of its corporate powers, either by a resolution or an ordi- nance unless its charter requires it to act by ordinance, and generally It is of little significance whether a legislative measure is couched in the language of an ordinance or of a resolution where it is enacted with the same formalities which usually attend the adoption of ordinances. If the action taken by a municipal- ity amounts to prescribing a perma- nent rule of conduct, which is to be thereafter observed by the inhabi- tants of the municipality, or by its officers in the transaction of the corporate business, then, no doubt, the rule prescribed may be more properly expressed in the form of an ordinance; but it is eminently proper to act by resolution if the action taken is merely declaratory of the will of the corporation in a given matter and is in the nature of a ministerial act." City of Lincoln v. Sun Vapor Street-Light Co., 59 Fed. 756; Swan v. Arkansas City, 61 Fed. 478; City of Paterson v. Bar- net, 46 N. J. Law, 62; Kline v. City of Streator, 78 111. App. 42. 421 Force v. Town of Batavia, 61 111. 99; Harmon v. Auditor of Pub- lic Accounts, 22 111. App. 129, affirm- ed in 123 111. 122, 13 N. E. 161, and following Chicago & I. R. Co. v. Pinckney, 74 111. 277; Town of Mid- dleport v. Aetna Life Ins. Co., 82 111. 562. 422 National Bank of Commerce v. Town of Granada (C. C. A.) 54 Fed. 100, affirming 44 Fed. 262, 48 Fed. 278, and following Dixon County v. Field, 111 U. S. 83. The court say: 189 ISSUANCE OF SECURITIES. 189. The election. Where negotiable bonds are authorized to be issued at an elec- tion, it may be called especially to consider the one question, viz., the incurring of indebtedness, 423 or this question may be "We entertain no doubt but that the appropriate mode for the town to proceed under the act in question is by ordinance of its board of trus- tees. The proceeding involves the appointment and holding of an elec- tion and the conversion of a non- negotiable floating debt into the form of negotiable bonds drawing a high rate of interest, payable semi- annually and which must run five and many run fifteen years. A measure requiring an expression of opinion from the voters of the town at the ballot box, * * * and of so much interest to the taxpayers of the town and the holders of its securities though so many years ought not be carried into effect ex- cept by the most solemn and delib- erate mode of proceeding known to the law for giving expression of the corporate will. That mode is by ordinance. This is the mode that is prescribed by the statute of Colora- do. * * * The provision of the act (statute) that such ordinances shall not take effect or be in force until they are published in the mode provided by the act is mandatory. This ordinance never having been published, never went into effect. Not being in force it conferred no authority on tne board of trustees or any officer of the town to do anj act under it: and no one could ac- quire any right based on it, or on any act of the officers of the town assuming to act under it. It had no more legal effect that if it had never been passed by the board of trus- tees." "But the learned counsel for dhe plaintiff in error contends that the recitals in the bonds that they are 'issued under an ordinance' of the town relieves the plaintiff from the burdens of showing that the or- dinance was published and estops the defendant from showing that it was not. It has never yet been held that a false recital in a bond can make that a law which never was a law. When an ordinance has been duly enacted, and has taken effect, authorizing the officers of a town to issue its negotiable bonds upon cer- tain precedent requirements or con- ditions * * * and the officers is- suing the bonds are the appointed tribunal to decide whether there has been a compliance with such prece- dent conditions and the bonds issued recite that they are issued in pur- suance of such ordinance, it is prob- ably true that such recital in favor of bona fide purchasers for value would import a full compliance with the requirements of the ordinance and preclude inquiry as to whether the precedent conditions were per- formed before the bonds were is- sued. But that doctrine has no ap- plication to this case." 423 Bowen v. Town of Greensboro, 79 Ga. 709, 4 S. E. 159; Byrne v. Parish of East Carroll, 45 La. Ann. 392. See, as to the construction of the statutes of Minnesota on the subject, Truelson v. City of Duluth, 60 Minn. 132, and Janeway v. Du- luth, 65 Minn. 292. Baumann v. City of Duluth, 67 Minn. 283; Hamilton v. Village of Detroit, 83 Minn. 119, 85 N. W. 933. 434 POWERS. 189 submitted to the people for their determination at a general elec- tion. 42 * The legality of an act providing for such special elec- tion, although questioned, has never been decided adversely, and as a question of expediency it would seem that the question of incurring indebtedness could be considered more impartially and upon its own merits at such an election than at a general one where other influences and other questions are submitted to be decided and which may influence the vote of the electors, inde- pendent of the merits. Occasionally, the question of incurring indebtedness or subscribing to the stock of a railway company has been submitted to the "male taxpayers of the county" alone, for their decision instead of all the electors who would, ordi- narily, be qualified to vote at a general election or upon other questions. The limitation imposed by such an act has been held in such cases a valid one as the class named by such act or au- thority forms a large proportion and usually all of those inter- ested in the question; the taxpayers of the taxing district bear- ing the burden of indebtedness. 425 A proposition embodying two differ- ent questions held not objectionable since the issue of the bonds was the essential question to be determined by vote of the electors and this was clearly submitted. Robinson v. City of Goldsboro, 122 N. C. 211, 30 S. E. 324; Baker v. City of Seattle, 2 Wash. St. 576. *24Belknap v. City of Louisville, 99 Ky. 474, 36 S. W. 1118, 34 L. R. A. 256; City of Ashland v. Culbert- son, 103 Ky. 161, 44 S. W. 441. 425 Baltimore & O. R. Co. v. Coun- ty of Jefferson, 29 Fed. 305. The court say: "By the terms of the fifth section of the act in question, power was delegated by the legisla- ture to the supervisors of Jefferson County to submit the question of a subscription to the capital stock of the said railroad to all the male tax- payers of the county, at a special election, above the age of twenty- one years not under any of the dis- abilities mentioned in the act. It is urged that the power thus con- ferred by the legislature is not war- ranted by the constitution. This is a delegation of power to local au- thorities for local purposes. There is nothing in the constitution which inhibits the legislature from the ex- ercise of such a power. In the ab- sence of such a restriction upon the legislative power, the exercise of it cannot be questioned. It has been frequently done by the legislatures of various states upon similar pro- visions in their constitution and in almost every instance where the power has been questioned, the courts have sustained the legislative view of its exercise. The power of taxation for local and municipal purposes has most always been dele- gated. The reason for it is founded in necessity and the exercise of the power cannot now be questioned." 190 ISSUANCE OF SECURITIES. 433 190. Questions not necessary for submission to the electors. Although the general principle exists that before an issue of negotiable bonds will be considered valid, the question of the issue must be submitted to a vote of the people, it does not apply to all issues, and, especially, is this true of refunding bonds. The legislative authority may exist for the refunding of indebted- ness; the issuing of bonds or other evidences of debt to accom- plish this purpose, it has been repeatedly held, does not increase or create a debt but merely changes its form. The authorities are uniform to the effect that where legislative authority ex- ists, the proper officials have the power to negotiate for an is- sue of refunding bonds without submitting the question to the electors of the district, 426 and then, although their validity may *26 Boon Tp. v. Cummins, 142 U. S. 366; Howard v. Kiowa County, 73 Fed. 406; City of Huron v. Second Ward Sav. Bank, 86 Fed. 272, 49 L. R. A. 534; Pratt County Com'rs v. Society for Savings (C. C. A.) 90 Fed. 233. "The bonds from which some of the coupons in suit were cut were issued to refund debts of the x county which were evidenced by judgments and these bonds were is- sued without a vote of the electors of the county. It is contended that chapter fifty of the laws of -1879 did not authorize the issue of bonds to refund judgments without a vote of the electors and that these cou- pons and the bonds from which they were taken, are consequently void. * * * The theory of counsel for the county is that a judgment is 'current expense' of the year in which it is recovered; that by para- graphs 1630 and 1632 the board of county commissioners was forbidden to borrow money to meet current ex- penses without first submitting the question of such loan to a vote of the electors; and that therefore, it is prohibited from refunding a debt evidenced by a judgment under the Corp. 28. act of 1879 without such a vote. The argument is too subtle and in- genious to be sound. * * * The refunding of a debt in the legal method * * * is not borrowing money nor is the exchange of bonds for a judgment, the making of a loan. * * * Such an exchange neither creates nor increases the debt; it simply changes the form of it." Geer v. Ouray County Com'rs (C. C. A.) 97 Fed. 435; Hammond v. City of San Leandro, 135 Cal. 450, 67 Pac. 692; Chicago & I. R. Co. v. Mallory, 101 111. 583; Common Coun- cil of Muskegon v. Gow, 94 Mich. 453. Following the city charter the court here held that the state coun- cil of Michigan has power to issue bonds without a vote of the electors when the total amount of bonds and the general tax levy for the year is less than 3 per cent of the assessed valuation. Le Tourneau v. City of Duluth, 85 Minn. 219, 88 N. W. 529. Under Laws 1899, c. 351, 10, a city coun- cil may issue bonds in amount less than $100,000 for the particular pub- lic purpose without the approval of the electors of the city. But see the 434 POWERS. 191 be questioned, the bonds thus issued will be considered valid outstanding obligations of the corporation issuing them and subject to all the rules and principles of law controlling and gov- erning such instruments. 191. The election; time and manner of holding. The election authorized by statutory authority at which the question of an issue of negotiable bonds is submitted to the elect- ors for their determination should be held in the manner and in accordance with laws controlling general elections, 427 unless the authority specially provides otherwise. 428 The hours during which the polls shall be kept open, the manner of balloting, the form of ballots and the questions submitted, are all regulated in the manner suggested. 429 The recitals of officers authorized by dissenting opinion of Judge Collins. Bryan v. City of Lincoln, 50 Neb. 620, 35 L. R. A. 752. McCreight v. City of Camden, 49 8. C. 78, 26 S. E. 984, where a sub- mission to the electors was not con- sidered necessary under the special authority granted the city of Cam- den to borrow money by issuing bonds. Murry v. Fay, 2 Wash. St. 352, 26 Pac. 533; Knight v. Town of West Union, 45 W. Va, 194, 32 S. E. 163. 42751 Am. St. Rep. 853-854; Town of Oregon v. Jennings, 119 U. S. 74; Town of Concord v. Robinson, 121 U. S. 165; Post v. Pulaski County, 47 Fed. 282; People v. Town of Berkeley, 102 Cal. 298, 36 Pac. 591, 23 L. R. A. 838; Bowen v. Town of Greenesboro, 79 Ga. 709 ; Edwards v. People, 88 111. 340; Cedar Rapids & M. R. Co. v. Boone County, 34 Iowa, 45; Union Bank of Richmond v. Town of Oxford, 116 N. C. 339, 21 8. E. 410. *28 Humboldt Tp. v. Long, 92 U. S. 642. Bonds not void where the election was held in less than thir- ty days after the order calling it, the law requiring thirty days' no- tice, the holder being a bona fide purchaser and the bonds reciting that the election was regularly held. Knox County v. Ninth Nat. Bank, 147 U. S. 91; Harding v. Rockford, R. I. & St. JU R. Co., 65 111. 90; Bras v. McConnell, 114 Iowa, 401, 87 N. W. 290; Pritchard v. Magoun, 109 Iowa, 364, 46 L. R. A. 381; Peo- ple v. Caruthers bchool Dist., 102 Cal. 184, 36 Pac. 396; Seymour v. City of Tacoma, 6 Wash. 427, 33 Pac. 1059; Phillips v. Town of Albany, 28 Wis. 340. 429 Hammond v. City of San Le- andro, 135 Cal. 450, 67 Pac. 692; City of Denver v. Hayes, 28 Colo. 110, 63 Pac. 311; Bras v. McConnell, 114 Iowa, 401, 87 N. W. 290; Kline v. City of Streator, 78 111. App. 42; People v. Seaman, 59 App. Div. 76, 69 N. Y. Supp. 55; Murphy v. City of San Luis Obispo, 119 Cal. 624, 51 Pac. 1085, 39 L. R. A. 444. 102 ISSUANCE OF SECURITIES. 435 law in regard to the legality of the election as affected by the time, notice and manner of holding, are regarded as conclusive. 430 192. Voters and their qualifications. The qualification of electors at such an election is fixed by leg- islative action, 431 and the findings or conclusions of officials au- thorized to pass upon all matters of fact in connection with such qualifications, the number of votes cast or the questions submit- ted, is generally regarded as conclusive and the public corpora- tion estopped to deny such findings or conclusions; 432 this prin- ciple of law is especially true in regard to those matters dehors the record. 433 The presumption of law exists that electors voting 430 See post, 209 et seq.; Town of Coloma v. Eaves, 92 U. S. 484; Marcy v. Oswego Tp., 92 U. S. 637; Humboldt Tp. v. Long, 92 U. S. 642; Roberts v. Bolles, 101 U. S. 119; An- derson County Com'rs v. Beal, 113 U. S. 227; Madison County Sup'rs v. Brown, 67 Miss. 684. 431 Harshman v. Bates County, 92 U. S. 569; Walnut Tp. v. Wade, 103 U. S. 695; McGraw v. Greene County Com'rs. S9 Ala. 407; People v. Counts, 89 Gal. 15; Stockton v. Pow- ell, 29 Fla. 1, 10 So. 688, 15 L. R. A. 42; Kaigler v. Roberts, 89 Ga. 476, 15 S. E. 542; Heilbron v. City of Cuthbert, 96 Ga. 312; Howell v. City of Athens, 91 Ga. 139; Murdoek v. Weimer, 55 111. App. 527; MacKen- zie v. Wooley, 39 La. Ann. 944, 3 So. 128: Everett v. Smith, 22 Minn. 53; Webb v. Lafayette County, 67 Mo. 354; Cummings v. Hyatt, 54 Neb. 35, 74 N. W. 411; Spitzer v. Village of Fulton, 33 Misc. 257, 68 N. Y. Supp. 660; McDowell v. Mas- sachusetts & S. Const. Co., 96 N. C. 514; Smith v. City of Wilmington, 98 N. C. 343; Claybrook v. Rocking- ham County Com'rs, 117 N. C. 456; Hendrick v. Culberson, 23 Tex. Civ. App. 409, 56 S. W. 616; Day v. City of Austin (Tex. Civ. App.) 22 S. W. 757; 29 Am. Law. Reg. 873-920. Acts authorizing women to vote at such elections have been held con- stitutional. See Kimball v. Hendee, 57 N. J. Law, 307, 30 Atl. 894; Woodley v. Town Council of Clio, 44 S. C. 374, 22 S. E. 410; Wilson v. City of Florence, 39 S. C. 397, 20 L. R. A. 720; Id., 40 S. C. 290. But see Baltimore & O. R. Co. v. County of Jefferson, 29 Fed. 305. 2 County of Moultrie v. Rocking- ham Ten-Cent Sav. Bank, 92 U. S. 636; Livingstone County v. First Nat. Bank of Portsmouth, 128 U. S. 127; Reynolds & H. Const. Co. v. City of Monroe, 45 La. Ann. 1024, 13 So. 400. The official and public an- nouncement of the result of a mu- nicipal election is essential to the validity of the taxes voted. State v. School Dist. No. 13, 13 Neb. 466; McDowell v. Massachusetts & S. Const. Co., 96 N. C. 514, 2 S. E. 351; Cleveland v. City of Spartanburg, 54 S. C. 83, 31 S. E. 871; Nelson v. Haywood County, 89 Tenn. 781, 11 S. W. 885. 483 Citizens' Sav. & Loan Ass'n v. Perry County, 156 U. S. 692. The court say: "We have seen that the 436 POWERS. possess the right to exercise the franchise, that the votes received were legal and that no undue influence was exercised by those affirmatively interested in the issue of bonds. 434 Allegations in proceedings raising questions concerning the legality of the elec- tion either as to its time, place or manner of holding, the number of votes cast or the right of those voting to vote must be definite and point out with particularity the alleged illegal acts or con- ditions. 436 193. Canvass of election returns. The election returns, unless otherwise provided, should be can- vassed by those officials upon whom the duty usually devolves. 439 county court at its special terra in November, 1871, not only certified, upon its record, that all the condi- tions prescribed by its order at the January term, 1870, had been com- plied with by the railroad company but authorized the county judge to make a similar certificate under oath. It even certified upon its rec- ords that the subscription had been voted for by a majority of the qual- ified voters taking as the standard the vote cast at the preceding gen- eral election for county officers. The number of such voters who, at the time of election lived in the county was a fact dehors any official record of votes and was to be ascer- tained by the county court or county judge upon examination. * * * It would be rank injustice to per- mit the county, after the lapse of so many years to say that a majority of the voters living in the county at the time of election a matter not determinable by any public record did not vote for the subscription." Louisville & N. R. Co. v. Davidson County Ct, 33 Tenn. (1 Sneed) 638. 43* Woolley v. Louisville S. R. Co., 93 Ky. 223. "It is clear that it could have been ascertained with judicial certainty how many legal votes were cast for and against this subscrip- tion and the appellants' silence upon that subject creates the presumption that the subscription obtained a ma- jority of the legal votes and the de- clared result was in accordance with the vote." Hendrick v. Culberson, 23 Tex. Civ. App. 409, 56 S. W. 616. But where the tax rolls fail to show that persons who voted at such elec- tion were qualified, the election was held prima facie illegal. 435 George v. Oxford Tp., 16 Kan. 72. Woolley v. Louisville S. R. Co., 93 Ky. 223. In this case the allega- tion contained the statement "that the majority of those voting in favor of the subscription were not un- bribed." The court said that such a statement "is not equivalent to an allegation that a majority of those voting in favor of the subscription were bribed. The allegation is only, at most, an implied or indirect charge. It is not equivalent to di- rect charge of bribery made in plain and concise language, as the Civil Code requires." Luzader v. Sar- geant, 4 Wash. 299, 30 Pac. 142. 6 Brown v. Ingalls Tp., 81 Fed. 485. "Was it essential to the valid- 193 ISSUANCE OF SECURITIES. 437 The purpose of laws requiring the canvass of retuins within a prescribed period after the election is to secure promptness of action on the part of the returning board in order not to deprive the electors of the rights authorized to be exercised, through the casting of the necessary affirmative votes. 437 Such regulations as well as those providing for the record of the official returns are, usually, considered directory. 438 A canvass, therefore, of election returns, although made shortly after the time limited or prescribed by law has expired, does not, necessarily, invalidate the result of such election. 439 Ity of the bonds that the votes should be canvassed by the county commissioners and by them only? If under the laws of Kansas a board of county commissioners is the only body which can legally canvass and declare the result of an election held for the purpose of authorizing the issue of refunding bonds then these bonds are void; for there would be no authority in the town- ship board to estop the township by certifying to a state of facts, the determination of which was not in- trusted to it by law. Northern Bank of Toledo v. Porter Tp., 110 U. S. 608; Dixon County v. Field, 111 U. S. 83. The act itself does not make any provision by whom the votes of such an election should be canvassed or the result declared. * * * Paragraph 442 of the Gen- eral Statutes of 1889 (Laws 1875) provides that before the issuing of such funding bonds (as provided for by the act of 1875) an election should be held 'to be conducted and the returns thereof ascertained in the manner provided by law for holding general elections.' The votes at general elections for town- ship offices must be canvassed by the board of county commissioners. The act of 1875 was in force at the time of the passage of the act of 1879 under which these bonds were issued. The fact that no provision was made in the later act as to whom the returns of the election should be made * * * raises a strong presumption that the legis- lature deemed the provisions of the act of 1875, which related to the same subject-matter and was pe- culiarly applicable to the objects for which the act of 1879 was enacted, sufficient without additional legis- lation. Such is the construction adopted by the Kansas Court of Appeals in Faulkenstein Tp. v. Fitch, 2 Kan. App. 193." Board of Education of Topeka v. Welch, 51 Kan. 792, 33 Pac. 654; Allison v. Louisville, H. C. & W. R. Co., 72 Ky. (9 Bush) 247; City of Louis- ville v. Board of Park Com'rs, 112 Ky. 409, 65 S. W. 860. 7 Stockton v. Powell, 29 Fla, 1, 10 So. 688, 15 L. R. A. 42. *38 Claybrook v. Rockingham County Com'rs, 117 N. C. 456, cit- ing Wilmington, O. & E. C. R. Co. v. Onslow County Com'rs, 116 N. C. 563. Knight v. Town of West Union, 45 W. Va. 194, 32 S. E. 163, but see Deland v. Platte County, 54 Fed. 823. *39 Syracuse Tp. v. Rollins (C. C. A.) 104 Fed. 958; Turpin v. Madison 438 POWERS. 194 194. Necessary votes. The affirmative vote necessary to the authority secured at an election for an issue of negotiable bonds may be determined, either in the constitution, the general statutes of the state or the special authority providing for the issue of bonds and calling the election. 440 These provisions may require either a certain pro- portion of the legal electors voting at the election, of the total number registered and qualified to vote or of the vote cast at the election upon the particular question, viz., the issue of bonds without regard to the total vote upon other propositions or for candidates for public offices. The greater number of authorities hold that, unless required by law, the prescribed proportion of the legal voters necessary to carry the question need not be of the total number of registered or qualified voters, but such pro- portion of those who actually voted at the election and upon the question submitted, namely, the issue of negotiable bonds. 441 County Fiscal Ct., 105 Ky. 226, 48 S. W. 1085; Claybrook v. Rocking- ham County Com'rs, 117 N. C. 456. 440 Henry County v. Nicolay, 95 U. S. 619; Cass County v. Gillett, 100 U. S. 585. The constitutional pro- vision requiring a two-thirds vote does not apply to public charters granted prior to the adoption of the constitution. Post v. Pulaski County (C. C. A.) 49 Fed. 628; Office Specialty Mfg. Co. v. County of Elbert, 73 Fed. 324; Pacific Imp. Co. v. City of Clarksdale (C. C. A.) 74 Fed. 528; Jordan v. Cass County, 3 Dill. 185, Fed. Gas. No. 7,517; Town of De- catur v. Wilson, 96 Ga. 251. "I St. Joseph Tp. v. Rogers, 83 U. S. (16 Wall.) 644; Cass County v. Johnston, 95 U. S. 360. "All quali- fied voters who absent themselves from an election duly called are pre- sumed to assent to the expressed will of the majority of those voting unless the law providing for the election otherwise declares. Any other rule would be productive of the greatest inconvenience and ought not to be adopted unless the legislative will to that effect is clearly expressed." Carroll County v. Smith, 111 U. S. 556; Madison County v. Priestly, 42 Fed. 817, following Carroll Coun- ty v. Smith, 111 U. S. 556. Rowland v. San Joaquin County Sup'rs, 109 Cal. 152; Fritz v. City & County of San Francisco, 132 Cal. 373, 64 Pac. 566; Howell v. City of Athens, 91 Ga. 139; City of South Bend v. Lewis, 138 Ind. 512, 37 N. E. 986. The court in a very elab- orate opinion examines the leading cases and from them deduces "four leading principles may be considered as fully established, namely: First. Where a measure is proposed to the people and its adoption made to depend on a vote of the majority, those who do not vote are considered as acquiescing in the result declared by those who do vote even though those voting constitute a minority 194 ISSUANCE OF SECURITIES. 439 Where, however, the law provides that the required proportion shall be of the total number of registered and qualified voters, such total number must then be considered in determining the question whether the required number voted affirmatively in favor of the issue of bonds. 442 This rule is also true where stat- of those entitled to vote. Second. Where a question is required to be submitted at a certain regular elec- tion and is made to depend upon a majority of the votes cast at 'such election* a majority of all the votes cast at the election is meant and not merely a majority of the votes cast on that particular question. Third. Where at a general election a proposition is submitted to the voters, the result of the vote on the proposition will be determined by the votes cast for and against it, in the absence of a provision in the law, under which it is submitted, to the contrary. Fourth. Where a legislative body provides that a proposition shall be submitted to the voters, that those in favor of the proposition shall cast an affirmative vote and that those electors op- posed to the proposition shall cast a negative vote, and that a 'major- ity of the votes given' shall be requisite to the adoption of the pro- posed measure, then the only votes to be counted and considered in de- termining whether the measure Is adopted or not, are those which are given on the particular question in- volved Of the correctness of these four principles, we think there can be no dispute." Cutler v. Madison County Sup'rs, 56 Miss. 115; May v. Bermel, 20 Misc. 515, 45 N. Y. Supp. 913; Louis- ville & N. R. Co. v. County Ct. of Davidson, 33 Tenn. (1 Sneed) 638. "How can we know how many legal voters there are in a county at any given time? We cannot judicially know it. If it were proved that the vote was much larger in the last preceding political election, or by the last census by the official re- turns, or the examination of the witnesses, it would only be a cir- cumstance, certainly not conclusive that such was the case at the time of this election. * * * When a question or an election is put to the people, and is made to depend on the vote of a majority, there can be no other test of the number entitled to vote but the ballot box. If in fact, there be some or many who do not attend and exercise the priv- ilege of voting, it must be presumed that they concur with the majority who do attend, if indeed they can be known at all to have an ex- istence." Faulkner v. City of Seattle, 19 Wash. 320, 53 Pac. 365; Miller v. School Dist. No. 3, 5 Wyo. 217, 39 Pac. 879. 442 Floyd County v. State, 112 Ga. 794; Smith v. City of Dublin, 113 Ga, 833, 39 S. E. 327; Onstott v. People, 123 111. 489, 15 N. E. 34. "By the terms of the fourth section of the act under which the election was held the county authorities were not empowered to issue the bonds unless a majority of the quali- fied voters of the county voted in favor of issuing bonds, taking as a standard the number of votes cast at the last general election held in the county next before this vote was had. This was not done. * * * 440 POWERS. 194 utory provisions require the affirmative vote of a prescribed num- ber of all the legal electors voting at the election ; then the whole number of votes cast at the election must be taken into considera- tion in ascertaining whether or not the necessary affirmative vote has been cast without considering the vote on the question of a bond issue. 4 * 3 We are of opinion as the proposition to issue the bonds did not receive the vote required by statute, the coun- ty court had no right to issue the bonds, and the bonds being illegal, taxes could not properly be levied and collected to pay interest there- on." Kentucky Union R. Co. v. Bour- bon County, 85 Ky. 98; Hawkins v. Carroll County Sup'rs, 50 Miss. 735; Kemp v. Town of Hazlehurst, 80 Miss. 443, 31 So. 908; State v. Harris, 96 Mo. 29, 8 S. W. 794. It was here held that under Mo. Const. 1865, art. 11, 14, requiring an assenting vote of two-thirds of all the qualified voters of the corpora- tion, "two-thirds of the qualified voters voting at an election was not sufficient; mere inaction of vot- ers in failing to vote did not ex- press assent." State v. Winkelmeier, 35 Mo. 103; State v. Renick, 37 Mo. 270; State T. Curators of State University, 57 Mo. 178; State v. Brassfield, 67 Mo, 331; Lane v. Schomp, 20 N. J. Eq, (5 C. E. Green) 82; McDowell v. Massachusetts & S. Const. Co., 96 N. C. 514; Duke T. Brown, 96 N. C. 127; Lynch burg & D. R. Co. v. Per- son County Com'rs, 109 N. C. 159; Wilson v. City Council of Florence, 89 S. C. 397, 17 S. E. 835, 20 L. R. A. 720, but see Citizens' Sav. & Loan Ass'n v. Perry County, 156 U. S. 692. The Federal courts usually fol- low the decisions of the state courts construing such provisions. See Cass County v. Johnston, 95 U. S. 360; Cass County v. Jordan, 95 U. S. 373. 443 St. Joseph Tp. v. Rogers, 83 U. S. (16 Wall.) 644; Cass County v. Johnston, 95 U. S. 360, overrul- ing Harshman v. Bates County, 92 U. S. 569. So far as it declares the law to be unconstitutional, the court here said that a condition requiring the consent of a prescribed propor- tion of the legal voters was satis- fied by a majority of those voting, upon the principle that all quali- fied voters who absented themselves from an election held on public no- tice duly given are presumed to as- sent to the expressed will of the ma- jority of those voting unless the law providing for the election otherwise expressly declares. Carroll County v. Smith, 111 U. S. 556, disapproving Hawkins v. Carroll County Sup'rs, 50 Miss. 735; Cronly v. City of Tucson (Ariz.) 56 Pac. 876; People v. Town of Berke- ley, 102 Cal. 298, 23 L. R. A. 838; People v. Garner, 47 111. 246; People v. Winant, 48 111. 263; City of South Bend v. Lewis, 138 Ind. 512; Brown v. Tinsley, 14 Ky. L. R. 745, 21 S. W. 535; Slack v. Maysville & L. R. Co., 52 Ky. (13 B. Mon.) 1; Steb- bins ,v. Judge of Superior Ct., 108 Mich. 693 ; Taylor v. Taylor, 10 Minn. 107 (Gil. 81); Everett v. Smith, 22 Minn. 53; State v. Linn County Ct., 44 Mo. 504; Ranney v. Baeder, 50 Mo. 600; State v. Benton, 29 Neb. 195 ISSUANCE OP SECURITIES. 195. Negotiable securities; delivery. 441 Delivery to purchasers by the proper officials, and when duly authorized, of negotiable bonds issued by public corporations, is essential to their validity. 444 So long as the bonds remain un- 460, 45 N. W. 794; Bryan v. City of Lincoln, 50 Neb. 620, 35 L. R. A. 752; State v. Rube, 24 Nev. 251, 52 Pac. 274; City of Asbland v. Cul- bertson, 19 Ky. L. R. 1812, 44 S. W. 441; Day v. City of Austin (Tex. Civ. App.) 22 S. W. 757. *** Lewia v. Barbour County Com'rs, 105 U. S. 739. The certifi- cate of delivery to the proper offi- cial is conclusive as to such fact. Young v. Clarendon Tp., 132 U. S. 340. Where bonds are never in- dorsed or delivered by the treasurer they never become operative. Bergen County Freeholders v. Merchants' Exch. Nat. Bank, 21 Blatchf. 13, 12 Fed. 743; State v. Suwannee County Com'rs, 21 Fla. 1; Lake County Com'rs v. Linn, 29 Colo. 446, 68 Pac. 839. The exchange of invalid warrants for bonds duly au- thorized does not invalidate such bonds in the hands of bona fide pur- chasers. Thomas v. Morgan County, 39 111. 496; Town of Prairie v. Lloyd, 97 111. 180. Where a town has ample authority for issuing its bonds to a certain railroad company as a donation or subscription, and the bonds are executed in proper form and made payable to the proper company, but are delivered to the secretary of a new company and there is nothing pertaining to them, or which could have been ascer- tained from the record, indicating their delivery to one not entitled to receive them, the bonds cannot be held invalid by reason of such al- leged improper delivery after they have passed into the hands of in- nocent holders. Thompson v. Village of Mecosta, 127 Mich. 522, 86 N. W. 1044; Ports- mouth Sav. Bank v. Village of Ash- ley, 91 Mich. 670. A resolution of the village council authorizing the president and clerk to sign water- works bonds confers no authority upon those officers to issue and dis- pose of the bonds and if issued and disposed of without such authority they are not binding on the vil- lage. Town of Lexington v. Union Nat. Bank, 75 Miss. 1, 22 So. 291; Wash- ington County v. David, 2 Neb. Unoff. 649, 89 N. W. 737. "We have no doubt that if there was an entire want of power to issue these bonds the subsequent conduct of the offi- cers of the county towards the bonds, so issued could not create an es- toppel which would supply their want of original authority. We are inclined to the view that a more liberal rule is indulged in resolving doubts as to the existence of power to issue bonds when the consideration for the bonds has been received by the municipality and the bonds, even though non-negotiable, have passed into the hands of pur- chasers for value and their validity is not seasonably questioned than would be indulged in if the ques- tion of the want of power is chal- lenged before or even immediately after the issue of the bonds." In Ledwich v. McKim, 53 N. Y. 314, the court in speaking of the implied authority of an agent to 442 POWERS. 195 delivered, it has been held repeatedly, equities between parties who may be entitled to receive them and the public corporation can be investigated and determined by the courts which could not be so considered after delivery. 445 In some cases the word "is- sue" or "issuance" is held to include delivery, and the issue is not regarded complete until delivery is made. 446 Though other deliver or put in circulation a ne- gotiable instrument, said: "But this authority is not Implied from the fact alone, that the paper is in hands other than those of him who is to be bound, but from that fact joined with this other fact, that it has been by him intrusted to those hands for the purpose and with the intent that it shall go into use and circulation." Prairie School Tp. v. Haseleu, 3 N. D. 328, 55 N. W. 938; City of Jefferson v. Marshall Nat. Bank, 18 Tex. Civ. App. 539; Jones v City of Seattle, 19 Wash. 669; Germania Sav. Bank v. Village of Suspension Bridge, 73 Hun (N. Y.) 590. A municipality is not liable on bonds stolen and put on the market be- fore they were delivered by the municipal corporation, even in the hands of a bona fide holder. See, however, Cooke v. United States, 12 Blatchf. 49, Fed. Cas. No. 3,178, where the treasurer of a city who had negotiable bonds lawfully in his hands, embezzled the bonds and coupons and absconded with the pro- ceeds, the city was held liable to the bona fide holder. Copper v. Jersey City, 44 N. J. Law, 634. * 45 Alessandro Irr. Dist. v. Sav- ings & Trust Co., 88 Fed. 928. Where corporate bonds recite their issue under a valid statute in pursuance of its provisions and nothing upon their face indicates their invalidity a defendant to a bill, seeking their sale in part satisfaction of certain liens, may by cross bill show that they are in reality void and thus prevent the court from decreeing a sale, whereby they may pass for value to innocent purchasers. D'Esterre v. City of New York, 104 Fed. 605. "If the power exists in the municipality to issue nego- tiable bonds the bona fide holder is protected against irregularities on the part of its agents in negotiating them with the public. The com- plainant, as well as the original pur- chasers, was bound to know that the supervisor had no authority to sell the bonds on credit; but he was not bound to know that the supervisor had made such a sale and when he found that they had been negotiated with the public and delivered he was entitled to assume in the absence of notice to the contrary that the super- visor had negotiated them regularly and legitimately." Citing Mercer County v. Racket, 68 U. S. (1 Wall.) 83; Town of Grand Chute v. Wine- gar, 82 U. S. (15 Wall.) 355; and Stewart v. Lansing, 104 U. S. 505; McCurdy v. School Dist. No. 1, 127 Mich. 210, 86 N. W. 803; Schmid v. Village of Frankfort, 131 Mich. 197, 91 N. W. 131; People v. Walter, 68 N. Y. 403; Satterlee v. Strider, 31 W. Va. 781. **e Corning v. Meade County Com'rs, 102 Fed. 57. "The word 'is- sued' ordinarily means 'emitted' or 'sent forth' and in the absence of other definition, that must be taken to be the sense in which it was used 195 ISSUANCE OF SECURITIES. 443 authorities hold to the contrary and still others hold that the term "issue" applies only to delivery. 447 It is not necessary that the formal issue, namely, the mechanical making of the bonds or their delivery, should be done at the precise time authorized by law; a substantial variance from this date will not invalidate them. 448 If certain conditions are required to be fulfilled or per- formed by those who are entitled to the bonds, the delivery can be delayed until such conditions or obligations are performed and this delay, unless otherwise provided by law, does not render void such bonds upon the performance of the conditions; then deliv- in the legislation of Kansas." And the court further say: "Any other construction would have rendered the act impracticable and useless, because it was only in reliance upon a favorable vote already cast, and upon a subscription actually made that railroad companies could be in- duced to build their roads into many of the counties of Western Kansas. No reason occurs to us why the word 'issued' in the former limitation should be given a meaning so dif- ferent, so unique and so broad as to make it cover the presentation of the petition and call for the elec- tion, while in the latter it retains its ordinary significance, moreover, if the meaning of this word was am- biguous, the practical construction given to it and to the proviso in which it occurs by the officers of the state and county and the purchasers of the bonds while they were acting and contracting under it is entitled to great consideration and ought not to be modified or avoided to the destruction of rights resting upon it, unless that construction was clearly and palpably erroneous." 7 Perkins County v. Graff, 114 Fed. 441. The verb "issue" means to emit or send forth and it does not embrace the preliminary acts of signing and dating but is confined to the delivery of bonds. Moller v. City of Galveston, 23 Tex. Civ. App. 693, 57 S. W. 1116. City bonds legally executed, certified by the attorney general and regis- tered by the comptroller, though not yet sold are issued. 4*8 in Chickaming v. Carpenter, 106 U. S. 663, the court said: "We see nothing in the statutes which takes away from the township au- thorities the right to execute and deliver the bonds if for any reason It Is not done within the time named. The word 'shall' as used in the statute undoubtedly gives the township officers the whole of sixty days to get the bonds out, but it cer- tainly does not imply that if they fail to do it voluntarily within the time they cannot be compelled to do so afterwards. And if they can be compelled to do so, it necessarily follows that they should do it vol- untarily." School Dist. No. 40 v. Gushing, 8 Kan. App. 728, 54 Pac. 924; State v. Lake City, 25 Minn. 404; Woodbridge v. City of Duluth, 57 Minn. 256; Town of Lexington v. Union Nat. Bank, 75 Miss. 1, 22 So. 291; Moller v. City of Galveston, 23 Tex. Civ. App. 693, 57 S. W. 1116. Municipal bonds issued more than 444 POWERS. 196 ery should be made and can be demanded from the corporate officials." 9 196. Necessity for registration. As one of the required formalities that negotiable bonds when issued may become valid and enforceable obligations outstanding against the public corporations issuing them, there may be pro- visions, either in the general statutes or in the special act grant- ing authority, requiring their registration in some designated office and by some designated officer. 45 * If bonds contain re- two years after passage of ordinance providing for their payment held valid. * County of Henry v. Nicolay, 95 U. S. 619. "But under the decisions of this court the purchasers of the bonds were not bound to know whether or not the proceedings of the company were regular. The charter of the Tebo and Neosho Com- pany contained the power to con- struct the branch and gave the coun- ty court power to subscribe stock for it; and the Act of 1868 author- ized such branch and stock to be an independent interest and the bonds on their face simply showed that they were made to the parent company, 'to the use and in the name of the Clinton and Memphis Branch,' to 'aid in building said branch.' The purchaser therefore was appraised by the law that power existed in the county court to issue such bonds, without any election of the people and there was nothing on their face to show that they were not regularly issued. It was not incumbent on him to inquire whether the rail- road company had pursued all the regular steps necessary to entitle it to receive the bonds. Its agents, that is, the agents of the branch road, had them for sale and he had a right to presume that they were lawfully entitled to them." Perkins County v. Graff, 114 Fed. 441; Thomas v. County of Morgan, 59 111. 479; Town of Eagle v. Kohn, 84 111. 292. It is not essential to the validity of the subscription or bonds issued thereunder that the conditions annexed shall have first been performed. If performed after- wards the bonds will be valid. Gardner v. Haney, 86 Ind. 17. Bonds issued to build a school- house are not necessarily void be- cause the schoolhouse was not con- structed within the corporation lim- its. o Rock Creek Tp. v. Strong, 96 U. S. 271; Anthony v. Jasper Coun- ty, 101 U. S. 693; Coler v. City of Cleburne, 131 U. S. 162; Douglass v. Lincoln County, 2 McCrary, 449, 5 Fed. 775. Municipal bonds are not duly "issued" under the laws of Missouri unless the same have been duly registered in the office of the state auditor. Prickett v. City of Marceline, 65 Fed. 469; D'Esterre v. City of Brook- lyn, 90 Fed. 586; Wood v. City of Louisiana, 5 Dill. 122, Fed. Gas. No. 17,948; First Nat. Bank of North Bennington v. Town of Arlington, 16 Blatchf. 57, Fed. Cas. No. 4,806. 196 ISSUANCE OF SECURITIES. 445 citals to the effect that they have been duly registered, if they contain such statement or if a certificate of registration is en- Validity of bonds not affected by the omission to register them in the town clerk's office. The provision being held directory merely as it did not provide that the bonds should not be binding until registered. St. Louis County Com'rs v. Nettle- ton, 22 Minn. 356. The failure to register railroad aid bonds with the auditor of the city as required by law does not prevent county offi- cials from providing for the pay- ment of interest. State v. Babcock, 19 Neb. 223. In this case the court said: "There is a plain provision of the constitution applicable to bonds issued as dona- tions for railroads and other works of internal improvement and neither the city nor the defendants can dis- regard it with impunity. Who is to blame for the failure to have such bonds properly certified does not ap- pear, but until so certified it was the duty of the defendants to re- fuse to certify refunding bonds to take their place." The constitutions of Nebraska, North Dakota and Wy- oming contain provisions to the ef- fect that bonds shall be invalid un- less certified by a designated offi- cer. State v. Roggen, 22 Neb. 118; Ben- well v. City of Newark, 55 N. J. Eq. 260; Whann v. Coler, 159 N. Y. 535; Flagg v. School Dist. No. 70, 4 N. D. 30, 58 N. W. 499; Ter. v. Hopkins, 9 Okl. 133. The officer required by law to register bonds has no power to pass upon or deter- mine their validity. Walker v. State, 12 S. C. 200; Lackawana Iron & Coal Co. v. Town of Little Wolf, 38 Wis. 152. The court said: "The act fails to pro- vide who shall obtain such certifi- cate, when it shall be made or what shall be its effect. It does not pro- vide that the certificate shall be an- nexed to the bonds before they are issued or that without it the bonds shall be invalid. It contains no language which raises a presump- tion that the legislature intended that the annexing of such certifi- cate to the bonds should precede the delivery thereof or be essential to their validity. The certificate af- fords the town no protection what- ever and it seems to be of no conse- quence to the town whether it is annexed to the bonds or not. Under these circumstances it seems very clear to our minds that the provi- sion for annexing the certificate of the county clerk was enacted for the purpose of facilitating the negotia- tion of the bonds by stamping upon them additional evidence that they were executed by the proper town officers; and that the legislature did not intend that the certificates should be essential to a valid exe- cution and issue of the bonds." 451 Converse v. City of Ft. Scott, 92 U. S. 503; Rock Creek Tp. v. Strong, 96 U. S. 271. A municipal bond on the back of which is in- dorsed the certificate of the auditor of the state that it has been duly registered in his office according to law is not invalid because he failed to make in his office an entry of his action. In German Sav. Bank v. Franklin County, 128 U. S. 526-540, Mr. Jus- tice Blatchford said: "The regis- tration of the bonds by the state auditor has nothing to do with any of the terms or conditions on which 446 POWERS. 196 dorsed upon them, this will be held conclusive of the facts recited in such statement or endorsement irrespective of the true facts. 453 Some authorities hold that a registration does not deprive bonds of their negotiable character or quality. 458 the stock was voted and subscribed, neither the registration nor the cer- tificate of registry covers or certi- fies any fact as to compliance with the conditions prescribed in the vote on which alone the bonds were to be issued." Comanche County v. Lewis, 133 U. S. 198. The certificate of the au- ditor of the state thereon that the bonds were regularly issued, that the signatures were genuine and that the bond had been duly regis- tered, is conclusive upon the munici- pality when the officer so certifying is charged with that duty. City of Cairo v. Zane, 149 U. 3. 122; Flagg v. School Dist. No. 70, 4 N. D. 30, 58 N. W. 499, 25 L. R. A. 363. The decision of the offi- cer evidenced by registering and certifying the bonds that conditions had been complied with was final, as against the district, in favor of a bona fide purchaser without no- tice. Priestly v. Watkins, 62 Miss. 798. "Where an act of the legislature re- quires that the holders of all out- standing bonds of a specified coun- ty shall present the same for regis- tration by the clerk of the board of supervisors within a prescribed time and shall simultaneously file an affi- davit 'stating the number of each bond, the date of its issuance, the amount thereof and the names of the different persons through whom the holder derives his title' and pro- vides that, 'unless such affidavit is filed the said clerk shall not regis- ter the same, and payment of all Interest or principal thereof shnll be stopped,' such act is, as to valid bonds of the county, payable to bear- er and not due, unconstitutional and void because it violates in two par- ticulars, that provision in the state and Federal constitutions, respect- ively which protects from impair- ment the obligations of contracts, viz., First, in creating a statute of limitations against bonds not due and upon which no cause of action has arisen, and second, in requir- ing an affidavit showing the hold- er's chain of title to bonds payable to bearer, thus engrafting condi- tions and imposing burdens upon the contract not contained in it nor contemplated by the parties to it." In the case of Hardeman County v. Foard County, 19 Tex. Civ. App. 212, 47 S. W. 30, 536, the exact phrase- ology of the registration entry im- material since statute does not pre- scribe what the registration shall contain. 452 D'Esterre v. City of Brooklyn, 90 Fed. 586; Manhattan Sav. Inst. v. New York Nat. Exch. Bank, 170 N. Y. 58. Municipal coupon bonds with the corporate seal affixed, reg- istered in the city clerk's office, as required by statute and delivered to the purchaser with the space for the name of the payee left blank, are negotiable. The court said: "The provision for registration appears to be designed to exhibit the regu- larity and the authority of the is- sue and not to prescribe the form of the obligation." But see the fol- lowing cases and authorities to the contrary. In Cronin v. Patrick County, 4 197 ISSUANCE OF SECURITIES. 447 197. Official signatures and seals. The validity of negotiable bonds depends, originally, upon the authority to issue and the manner of its execution as granted to public corporations by legislative or constitutional authority. Assuming their legality in this respect, it is still necessary to their validity that they be signed by such officers or persons as are legally capable of binding the corporation. These may be either those especially designated by the special authority for the issue of bonds or general officials, the scope of whose authority and power would include the performance of such an act. 453 The Hughes, 524-530, 89 Fed. 79, where the court say: "There are two classes of public bonds known to the stock markets essentially dis- tinct in character and intended to be so. They are negotiable bonds and registered bonds. Those of the first class, the negotiable bonds, are made payable to some payee or his order; in which case they are transferable by indorsement and delivery; or. they are made payable to a payee or bearer, or simply to bearer in which case they are transferable by mere delivery. The other class, the registered bonds, are made pay- able to an obligee or his assigns and they are only transferable by regu- lar assignment on books of the obligor." In Savannah & M. R. Co. v. Lan- caster, 62 Ala. 555-563, the court said: "The provision that the bonds might be 'registered and made payable by transfer only on the books of the company,' did not itself make them non-negotiable by mere manual transfer; it was only a prom- ise which entitled those who should become holders of them at any time to have them changed from that character and converted into regis- tered bonds." Simonton, Mun. Bonds, 115. 453 Town of Grand Chute v. Wine- gar, 82 U. S. (15 Wail.) 355; Lynde v. County of Winnebago, 83 U. S. (16 Wall.) 6. In the absence of the county judge, the county clerk acting in such capacity may do cer- tain ministerial acts such as execut- ing and issuing bonds, etc. Town of Aroma v. Auditor of State, 15 Fed. 843. Bonds signed by supervisors but not by county clerk sufficiently executed. Swan v. Arkansas City, 61 Fed. 478; Thayer v. Montgomery County, 3 Dill. 389, Fed. Gas. No. 13,870; Phelps v. Town of Lewiston, 15 Blatchf. 132, Fed. Cas. No. 11,076. Commission- ers having power to issue coupons, a statement in the bonds that they have caused one of their number to sign the coupons is equivalent to a signing of the coupons by all. First Nat. Bank of North Ben- nington v. Town of Arlington, 16 Blatchf. 57, Fed. Cas. No. 4,806. Where a statute requires that bonds shall be signed by the selectmen, if signed by two they are valid. Currie v. Town of Lewiston, 21 Blatchf. 236, 15 Fed. 377. The term "officers of a town" includes the supervisors, and bonds having been executed by four of the officers so named, though the supervisor was not one of them, are valid. Dent v. Cook, 45 Ga. 323; Nian- 448 POWERS. 197 courts require, usually, only a substantial compliance with pro- visions of the law relating to ministerial or mechanical acts in connection with the issue of bonds. From this statement it must not be inferred, however, that gross irregularities in their formal execution can be overlooked. 454 The rule of law controlling this tic Sav. Bank v. Town of Douglas, 5 111. App. 579; Houston v. People, 55 111. 398. An official required by law to countersign bonds cannot re- fuse to do so because of matters af- fecting, in his opinion, the legality of the steps required by law to be taken before the bonds could be properly issued. Melvin v. Lisenby, 72 111. 63. The omission of the treasurer to counter- sign bonds held a mere defect in their execution. Town of Lexington v. Union Nat. Bank, 75 Miss. 1, 22 So. 291. Bonds recognized as valid by the town and the legislature were signed by the mayor and attested by the clerk as required by the enabling act, but the coupons though signed by the mayor were not attested by the clerk. The court held that this fact did not render them invalid. Bank of Statesville v. Town of Statesville, 84 N. C. 169. A stat- ute provided that bonds should be signed by the town magistrate, treas- urer and commissioner. It was held that the requirement was directory and the omission of the commission- er to sign did not invalidate them. Coler v. Santa Fe County Com'rs, 6 N. M. 88, 27 Pac. 619. Where legislative act provides that "the powers of a county as a body poli- tic and corporate shall be exercised by a board of county commission- ers" the fact that bonds were signed by the county commissioners and the probate judge of the county was not sufficient notice of irregularity in their issue to put a purchaser on inquiry, as the act of the com- missioners was the act of the county in its corporate capacity, and the signature of the probate judge was a mere surplusage. Yesler v. City of Seattle, 1 Wash. St. 308. An act requiring bonds to be signed by the mayor is suffi- ciently complied with if signed by the person occupying the office at date of negotiation and delivery though he was elected after the day of their date. When the legislative act is silent in regard to officials who shall exe- cute bonds, it should be done by the usual municipal officers. Walnut Tp. v. Wade, 103 U. S. 683; Kanka- kee County v. Aetna Life Ins. Co., 106 U. S. 668; Middleton v. Mul- lica Tp., 112 U. S. 433; Town of Windsor v. Hallett, 97 111. 204; Lane v. Inhabitants of Embden, 72 Me. 354. 4 Bissell v. Spring Valley Tp., 110 U. S. 162. Bonds requiring the signature of the countv clerk are incomplete and insufficiently exe- cuted without it. Coler v. City of Cleburne, 131 U. S. 162. Even bona fide holders of municipal bonds must take the risk of the official character of those who execute them. A statute provided that bonds should be signed by the mayor. Mr. Justice Blatchford said: "This clearly means that they shall be signed by the person who is may- or of the city when they are signed, and not by any other person. The 197 ISSUANCE OF SECURITIES. 449 subject, however, is not the strict and technical one, but that which requires a substantial compliance with ordinary rules af- fecting the making of negotiable instruments by corporate offi- cials, 455 and the acts of de facto officers as to third persons are binding upon the public corporation. 466 It must also be remem- 'egislature having declared who shall sign them, it was not open to the city council to provide that tney should be signed by some other per- son." Lehman v. City of San Diego, 83 Fed. 669; State v. Babcock, 19 Neb. 223. The provision of the Nebraska Constitution requiring the certifi- cate of the state auditor and secre- tary on municipal internal improve- ment bonds is regarded as impera- tive and cannot be disregarded. Peck v. City of Hempstead, 27 Tex. Civ. App. 80, 65 S. W. 653. In the signing of coupons it is not signed in the most informal or me- chanical way. Lithographed signa- ities required in the execution of bonds should be followed. The names of the proper officials may be necessary that even the same formal- tures will be good. See Phelps v. Town of Lewiston, 15 Blatchf. 131, Fed. Gas. No. 11,076; Blair v. Cum- ing County, 111 U. S. 363; Penning- ton v. Baehr, 48 Cal. 565; Town of Lexington v. Union Nat. Bank, 75 Miss. 1; Davis v. Shields, 26 Wend. (N. Y.) 341. 455 Curtis v. County of Butler, 24 How. (U. S.) 435. The county com- missioners consisted of a board of three; two of whom were author- ized to transact business; bonds signed by two out of three held binding upon the county. German Ins. Co. v. City of Man- ning, 78 Fed. 900. A municipality is estopped to deny the authority of city officials who have in fact signed" municipal bonds. First Nat. Bank of North Benning- ton v. Town of Arlington, 16 Blatchf. 57, Fed. Cas. No. 4,806; Clarke v. Hancock County Sup'rs, 27 111. 305; Lane v. Inhabitants of Embden, 72 Me. 354. In construing town records evidentiary of the action of the town, the words used are to receive their ordinary and popular significa- tion, rather than their technical meaning. Thompson v. Village of Mecosta, 127 Mich. 522, 86 N. W. 1044; Peo- ple v. White, 54 Barb. (N. Y.) 622. Officers may be compelled by man- damus to execute bonds duly au- thorized. People v. Mead, 24 N. Y. 114; Alexander v. McDowell County Com'rs, 70 N. C. 208; Bank of States- ville v. Town of Statesville, 84 N. C. 169 ; Edward C. Jones Co. v. Town of Guttenberg, 66 N. J. Law, 659, 51 Atl. 274; Carriger v. Town of Morristown, 69 Tenn. (1 Lea) 243; State v. Common Council of Madi- son, 7 Wis. 688. Where the common council had passed a valid ordinance for the issuing of city bonds, filing and dating them are ministerial acts and a mistake in the date does not render them invalid. * 6 Anthony v. Jasper County, 101 U. S. 693; Rails County v. Douglass, 105 U. S. 728. County bonds issued by de facto county officials cannot be impeached by showing that the officers signing were not such de jure. Abb. Corp. 29. 450 POWERS. 197 bered that the authority of an official of a public corporation is special and limited, differing in this respect in its legal character from a like official of a private corporation. 457 The failure to fix the official seal of the public corporation to the bonds does not necessarily invalidate them, 457 * neither does the Waite v. City of Santa Cruz, 89 Fed. 619. Bonds signed by de facto municipal officers are as binding as though they had been officers de jure. See, also, Waite v. City of Santa Cruz, 184 U. S. 302, revers- ing 98 Fed. 387. The same principle applies to de facto councils or other legislative bodies of municipal corporations. National Life Ins. Co. v. Board of Education of Huron, 62 Fed. 778; Coler v. Dwight School Tp., 3 N. D. 249, 55 N. W. 587, 28 L. R. A. 649. But there can be no officer de facto where no legal office exists. Norton v. Shelby County, 118 U. S. 426; Gage v. McCord (Ariz.) 51 Pac. 977. Bonds properly executed by an official during his term of office may be sold by his successor. Town of Decorah v. Bullis, 25 Iowa, 12. 7 The Floyd Acceptances, 74 U. S. (7 Wall.) 666; Marsh v. Fulton County, 77 U. S. (10 Wall.) 676; Peirce v. United States, 1 Ct. Cl. 270. The secretary of war has no general or unlimited power to bind the government by indorsing or ac- cepting commercial paper. In An- thony v. Jasper County, 101 U. S. 693, Chief Justice Waite said: "The public can act only through its au- thorized agents and it is not bound until all who are to participate in what is to be done have performed their respective duties. The author- ity of a public agent depends on the law as it is when he acts. He has only such powers as are specifically granted. * * * Purchasers of municipal securities must always take the risk of the genuineness of the official signatures of those who execute the paper they buy." City of Louisville v. Bank of Louisville, 174 U. S. 439, 19 Sup. Ct. 753. In Hull v. Marshall Coun- ty, 12 Iowa, 142-149, the court said: "A county judge is an officer of lim- ited powers. His authority is de- fined by statute, which every one is bound to know and comprehend. No one need be deceived or injured by such a rule; if the act is legal and within the power of the county judge, it is easy to allege and show it." Smith v. Town of Epping, 69 N. H. 558, 45 Atl. 415; McDonald v. City of New York, 68 N. Y. 23-27. "It is fundamental that those seek- ing to deal with a municipal cor- poration through its officials must take great care to learn the nature and extent of their power and au- thority." *57a San Antonio v. Mehaffy, 96 U. S. 312; Draper v. Springport, 104 U. S. 501. Mr. Justice Bradley said: "The technical form of the obliga- tion was a matter of form rather than that of substance. The issue of the bonds xmder seal, as contra- distinguished from bonds or obliga- tions without seal, was merely a directory requirement." See, also, Wiley v. Board of Education, 11 Minn. 371 (Gil. 268) ; Gould v. Town of Venice, 29 Barb. 442; People v. Mead, 24 N. Y. 114. 197 ISSUANCE OF SECURITIES. 451 failure of officials whose signatures are necessary to affix their own seals where required by law, after their signature. 458 The date of the signing and sealing, as determined by inspection of the face of a bond is conclusive, 459 and evidence showing or tend- ing to show that signatures and seals were affixed on a date sub- sequent to that required by law or that which is shown by the face of the bonds is inadmissible to establish their invalidity. The use of engraved or lithographic signatures does not invali- date bonds where the use of such signatures has been formally adopted by the officials signing. 460 An official signature written by one duly authorized, though not such an official, will be held sufficient. 461 Sealing. It is not necessary, unless the statute expressly re- quires it, to affix the corporate seal, and^this is particularly true where a corporation has no official seal. 462 The authorities are Bernards v. Stebbins, 109 U. S. dating of bonds eight days held not 341. So held of a seal adopted tern- to affect their validity. Brown v. porarily. Solon v. Ulmsberg Sav- Bon Homme County, 1 S. D. 216. ings Bank, 35 Hun (N. Y.) 1; Morton < 8 McKee v. Vernon County, 3 v. Carlin, 51 Neb. 202; City of San Dill. 210, Fed. Cas. No. 8,851; Pen- Antonio v. Gould, 24 Tex. 42. Seal nington v. Baehr, 48 Cal. 565; Town necessary to validity. Thornburgh of Lexington v. Union Nat. Bank, v. City of Tyler (Tex.) 43 S. W. 75 Miss. 1, 22 So. 291. 1054. But see Avery v. Springport, 461 Montgomery v. St. Mary's Tp., 14 Blatchf. 272, holding that coupon 43 Fed. 362; Chadbourne v. St. Mary's bonds not sealed, but showing by Tp., 43 Fed. 362; Ring v. Johnson their wording that sealing was in- County, 6 Iowa, 265. tended, are void. * 62 City of San Antonio v. Mehaffy, 8Armfield v. Town of Solon, 64 96 U. S. 312. Draper v. Town of Hun, 633, 19 N. Y. Supp. 44. Af- Springport, 104 U. S. 501, where Mr. fixing of wafers by a stranger op- Justice Bradley said: "The technical posite names of officers signing the form of the obligations was a mat- bonds held not to invalidate them, ter of form rather than of substance. Town of Solon v. Williamsburgh The issue of bonds under seal, as Sav. Bank, 114 N. Y. 122. contradistinguished from bonds or 459 Town of Weyauwega v. Ayling, obligations without seal, was mere- 99 U. S. 112; Anthony v. Jasper ly a directory requirement." Ber- County, 101 U. S. 693; Village of nards Tp. v. Stebbins, 109 U. S. 341. Kent v. Dana (C. C. A.) 100 Fed. So held of a seal adopted tempora- 56; Inhabitants of Stoughton v. rily. Jefferson County v. Lewis, 20 Paul, 173 Mass. 148, 53 N. E. 272; Fla. 980; Stockton v. Powell, 29 School Dist. No. 42 v. First Nat. Fla. 1, 15 L. R. A. 42; Wiley v. Bank of Xenia, 19 Neb. 89; State Board of Education of Minneapo- v. Moore, 46 Neb. 590. The ante- lis, 11 Minn. 371 (Gil. 268); Gould 452 POWERS. 198 divided upon the question of the validity of bonds issued and in the hands of bona fide purchasers without a corporate seal af- fixed where the statute requires this to be done. 463 198. Form. The necessary authority for an issue of negotiable bonds by a public corporation may contain provisions prescribing their for- mal wording. As stated in the preceding section, their validity does not, except in a slight degree, depend upon the mere me- chanical process involved in their making, but upon the authority derived from the legislature and exercised by the bond issu- ing district. Bonds after their issue pass, as a rule, immediate- ly into the hands of bona fide purchasers. If in form they com- ply with the requirements of general rules of law fixing the form of valid instruments of such a character, it will be consid- ered sufficient. 464 Where statutory authority does not require or prescribe a certain form, general rules of law will apply and bonds that may be defective in form when compared with others issued by the same corporation of a prescribed form will not be v. Town of Venice, 29 Barb. (N. Y.) App. 439; City of San Antonio v. 442; People v. Mead, 24 N. Y. 114; Gould, 34 Tex. 49. Town of Solon v. Williamsburgh *64 Anthony v. Jasper County, 101 Sav. Bank, 35 Hun (N. Y.) 1; Mor- U. S. 693; Atchison Board of Edu- ton v. Carlin, 51 Neb. 202. But see cation v. De Kay, 148 U. S. 591; Avery v. Town of Springport, 14 D'Esterre v. City of New York (C. Blatchf. 272, Fed. Cas. No. 676, as C. A.) 104 Fed. 605. General stat- holding that coupon bonds not utory provisions fixing the form of sealed, but by their wording show- bonds are superseded by a special ing that sealing was intended, were act prescribing this, void. Merced County v. California Uni- ces Phelps T. Town of Yates, 16 versity, 66 Cal. 25. But one en- Blatchf. 192, Fed. Cas. No. 11,082; titled to receive bonds cannot be Humboldt Tp. v. Long, 92 U. S. 642; compelled to take them when not Draper v. Town of Springport, 104 in the form prescribed by statute, U. S. 501; Bernards Tp. v. Stebbins, even though valid. Wilson v. City 109 U. S. 341; Rondot v. Rogers Tp., of Shreveport, 29 La. Ann. 673. A 99 Fed. 202; Augusta Bank v. City negotiable form does not impart of Augusta, 49 Me. 507; Lane v. In- validity in the absence of power to habitants of Embden, 72 Me. 354; issue. Town of Solon v. Williamsburgh Barrett v. County Ct. of Schuyler, Sav. Bank, 114 N. Y. 122; Thorn- 44 Mo. 197. Bonds not containing burgh v. City of Tyler, 16 Tex. Civ. the words "value received, negotia- 198 ISSUANCE OF SECURITIES. 453 held invalid because of such deficiencies. 465 To protect bona fide holders, the courts are inclined to extend this principle further and to hold that bonds, where the form is prescribed by the leg- islative authority for their issuance, although not complying technically with the form as thus required but yet which in their substantial features follow the law, will not be considered invalid on account of such variation. 468 ble and payable without defalca- tion," as required by the statutes, considered commercial and negotia- ble paper. Catron v. Lafayette County, 106 Mo. 659. 465 Wood v. Allegheny County, 3 Wall. Jr. 267, Fed. Cas. No. 17,937. "e City of New Orleans v. Clark, 95 U. S. 644. The ordinance of a city authorizing the issue of bonds provided the company should "guar- antee the said bonds and assume the payment of the principal there- of at maturity," the indorsement on the bonds by the president of the company, guaranteeing "the pay- ment of the principal and interest" was held a sufficient compliance. Calhoun County Sup'rs v. Gal- braith, 99 U. S. 214. Bonds issued payable to the railroad company or bearer was not held a sufficient vari- ance to invalidate them where the act provided that they should be made payable to the president or the directors of the company, their successors or assigns. In Board of Education of Atchison v. De Kay, 148 U. S. 591, the validity of bonds issued under general statute, Kan- sas 1868, held not to be affected where in reciting the title of that act the word "organize" is substi- tuted for the word "incorporate." D'Esterre v. City of Brooklyn, 90 Fed. 586; Roberts & Co. v. City of Paducah, 95 Fed. 62; Village of Kent v. Dana (C. C. A.) 100 Fed. 56; D'Esterre v. City of New York, 104 Fed. 605. An erroneous cita- tion of statutory authority is imma- terial; statutory provisions serving no purpose in safeguarding a mu- nicipality held directory only and a departure therefrom is not a de- fect of substance which renders bonds invalid. Murphy v. City of San Luis Obispo (Cal.) 48 Pac. 974. The statutory authority gave power to issue bonds payable "in gold coin or lawful money of the United States." The bonds were issued payable in "gold coin of the United States." Held a sufficient variance to invalidate them. This case was reversed, how- ever, in Murphy v. City of San Luia Obispo, 119 Cal. 624, 51 Pac. 1086.. where it was held that under such conditions the trustees of the city could, at their option, make the bonds payable in either gold coin of the United States or lawful money of the United States. Hadley v. Dague, 130 Cal. 207, 62 Pac. 500; Woodward v. Reynolds, 58 Conn. 486; Middleton v. City of St. Augustine, 42 Fla. 287, 29 So. 421. Bonds and coupons providing for their payment at a place differ- ent from the one specified in legis- lative authority is a material vari- ance and departure from such au- thority. School Dist. No. 40 v. Gushing, 8 Kan. App. 728, 54 Pac. 924; Stato v. School Dist. No. 3, 34 Kan. 237; Oswego Tp. v. Anderson, 44 Kan. 454 POWERS. 198 Times of issue and maturity. The rule of law that a substan- tial compliance with the provisions of legal authority also ap- plies to the dating of the bond and the term of its maturity so long as the life of the bond comes substantially within the law merely because it may have been executed at a different time from that contemplated by legal authority, does not make it in- valid. 467 214; Wiley v. Board of Education of Minneapolis, 11 Minn. 371 (Gil. 268); Town of Lexington v. Union J^&t. Bank, 75 Miss. 1, 22 So. 291. Refunding bonds issued in differ- ent denominations from the old in- debtedness not invalid. Bogart v. Lamotte Tp., 79 Mich. 294; State v. Roggen, 22 Neb. 118, 34 N. W. 108. The absence of a re- quired certificate by certain officials invalidates bonds. Starin v. Town of Genoa, 23 N. Y. 439; Allen v. City of Davenport, 107 Iowa, 90, 77 N. W. 532. Misrecital of authority held immaterial. Barker v. Town of Oswegatchie, 10 N. Y. Supp. 834; Oswego City Sav. Bank v. Board of Education of Union Free School, 70 App. Div. 538, 75 N. Y. Supp. 417. Where printed bonds are issued to replace original typewritten ones surren- dered at the time of such substitu- tion, the corporation is liable on the substituted bonds. State v. Village of Perrysburg, 14 Ohio St. 472. Bonds issued in the name of "The town of Perrysburg" instead of "the incor- porated village of Perrysburg" held valid. State v. Anderson County, 67 Tenn. (8 Baxt.) 249; Shelby County v. Jarnagin (Tenn.) 16 S. W. 1040; Brownson v. Smith, 93 Tex. 614. School district bonds not required to be certified by the Atty. General under Rev. St. art. 918d. City of Memphis v. Memphis Sav. Bank, 99 Tenn. 104. 467 Gilchrist v. City of Little Rock, 1 Dill. 261, Fed. Gas. No. 5,421. Bonds made payable at an earlier date than directed by the city or- dinance relating to the mode of ex- ecuting them are not void in the hands of bona fide purchasers. City of South St. Paul v. Lamprecht Bros. Co. (C. C. A.) 88 Fed. 449; Syracuse Tp. v. Rollins, 104 Fed. 958; Prettyman v. Tazewell County Sup'rs, 19 111. 406; Woodruff v. Town of Okolona, 57 Miss. 806. A bond payable at a longer period from the date of issuance than au- thorized by law is void although containing a recital that it is is- sued in pursuance of law. McMullen v. Ingham Circuit Judge, 102 Mich. 608, 61 N. W. 260. When statute provides that payment of loans obtained by boards of county supervisors "shall in all cases be made within fifteen years from date of such loan," an issue of county bonds is limited to fifteen years. Syracuse Sav. Back v. Town of Seneca Falls, 21 Hun (N. Y.) 304; Brownell v. Town of Greenwich, 114 N. Y. 518, 4 L. R. A. 685. Holder not bound to examine entire issue to see that no more bonds come due in a single year than the stat- ute permits. Hoag v. Town of Greenwich, 133 N. Y. 152. Where municipal bonds 199 ISSUANCE OF SECURITIES. 455 Rate of interest. The rate of interest, however, as authorized, it is held, is not a directory provision, but mandatory, and a bond issued bearing interest at a different rate from that authorized, may be held invalid even in the hands of a bona fide holder or at least to the extent of such excess of interest rate. 468 199. Recitals of authority. The recitals in a bond as to statutory authority need not re- peat the precise phraseology employed in such authority ; the are void because payable at a dif- ferent time than that authorized by law, but the bonds were issued and purchased in good faith and the municipality had a legal right to issue such bonds, except as to time of payment, the law will imply a promise by the municipality to re- pay to the purchaser the amount paid for such bonds at the time and according to the terms which should have been inserted in the bonds. Morrill v. Smith County (Tex. Civ. App.) 33 S. W. 899; First Nat. Bank of St. Johnsbury v. Town of Concord, 50 Vt. 257. The selectmen and treasurer whose duty it was to issue the bonds were the ones to decide when to perform that duty, and defendant knowing that they were being issued but taking no steps to prevent it could not there- after raise the objection that the bonds were prematurely issued, against a bona fide holder. Yesler v. City of Seattle, 1 Wash. St. 308; State v. Common Council of Madison, 7 Wis. 688. Where the common council has passed a valid ordinance for the issuing of city bonds, filling up and dating them is a ministerial act and a mistake in the date does not render them invalid. 468 Lewis v. Clarendon, 5 Dill. 329, Fed. Gas. No. 8,320. A city was au- thorized to issue bonds "bearing in- terest at the rate of 6% per annum"; they were issued bearing interest at the rate of 10% held valid to the extent of 6% and principal. E. M. Derby & Co. v. City of Modesto, 104 Cal. 515. Where statutory limit- as to rate of interest is not exceed- ed, the bonds are not invalid because they provide for semi-annual pay- ment of interest. City of Quincy v. Warfield, 25 111. 317. Bonds authorized to bear in- terest at the rate of 8% when issued at the rate of 12% will be valid to the extent of 8% only. Sherlock v. Village of Winnetka, 68 111. 530. Bonds sold disregarding statutory authority as to rate of interest, held valid but the authorities considered personally liable. Beattie v. An- drew County, 56 Mo. 42. Where no rate is specified in the authority, any rate not prohibited by law may be fixed. Parkinson v. City of Parker, 85 Pa. 313. A bofld calling for in- terest in excess of the legal rate, void only as to such excess. Nelson v. Haywood County, 87 Tenn. 781, 11 S. W. 885, 4 L. R. A. 648. The fact that the act author- ized the bonds to be issued bearing interest at the legal rate where they were payable in another state where 456 POWERS. 200 substance is the desired end ; the intent or meaning of the statute is to be followed not its technicalities unless mandatory in their character. 469 Bonds containing provisions or requirements void under the laws of the state do not become invalidated by reason of such provisions if otherwise legal. 470 200. The ratification of void securities. In a preceding section, 471 the question of ratification of a void issue of negotiable bonds has been considered to a certain extent. In this section additional authorities and principles are given bearing upon the subject. The general rule of law applying to the ratification of an issue of bonds void for the want of author- ity, seems to be that to the extent the legislature could, con- stitutionally, authorize the bonds of public corporations, bonds issued without sufficient statutory authority may be cured or ratified by subsequent legislation and this ratification by the legislature, it has been held, is, in all respects, equal to original authority and cures all defects in power to issue and all irregu- larities in the execution of the bonds. 472 A ratification also, the legal rate Is greater than in the state where they were issued does not render them invalid. 469 Johnson County Com'rs v. Jan- uary, 94 IT. S. 202. The fact that the act under which the bonds were issued was erroneously referred to in their recitals does not render them void. Atchison Board of Edu- cation v. De Kay, 148 U. S. 591. The use of the word "organize" does not affect the validity of the bonds where the authority required the word "incorporate." D'Esterre v. City of New York, 104 Fed. 605. 470 Town of Enfleld v. Jordan, 119 U. S. 680. i See 171. 472 Bissell v. City of Jefferson- ville, 24 How. (U. S.) 287. "Mis- takes and irregularities in the pro- ceedings of municipal corporations are of frequent occurrence and the state legislatures have often had occasion to pass laws to obviate such difficulties. Such laws when they do not impair any contract or injuriously affect the rights of third persons are generally regarded as unobjectionable and certainly are within the competency of the legis- lative authority." Campbell v. City of Kenosha, 72 U. S. (5 Wall.) 194; Beloit v. Mor- gan, 74 U. S. (7 Wall.) 619; St. Joseph Tp. v. Rogers, 83 U. S. (16 Wall.) 664; Jasper County v. Bal- lou, 103 U. S. 745; Town of Thomp- son v. Perrine, 103 U. S. 806; Read v. City of Plattsmouth, 107 U. S. 568; Otoe County v. Baldwin, 111 U. S. 1; Bolles v. Town of Brim- field, 120 U. S. 759; Cooper v. Town of Thompson, 13 Blatchf. 434, Fed. Gas. No. 3,202; Dows v. Town of Elmwood, 34 Fed. 114; Deyo v. Otoe County, 37 Fed. 246; City of Co- lumbus v. Dennison (C. C. A.) 69 200 ISSUANCE OF SECURITIES. 457 it has been held, relates back to the time of issuance of the bonds. It may apply, as already suggested, to informalities or defects in the execution or delivery, 473 or to defects and deficiencies in Fed. 58; Lehman v. City of San Diego (C. C. A.) 83 Fed. 669, af- firming 73 Fed. 105; but to render bonds valid, they must be issued according to the manner provided by the original authority as rati- fied. Yavapai County v. McCord (Ariz.) 59 Pac. 99. The act of 1896 having validated railroad aid bonds there- tofore issued, no original invalidity in such bonds or the enactment un- der which they were issued, is avail- able to prevent their being refund- ed. Town of Duanesburgh v. Jenk- ins, 57 N. Y. 177. In Coleman v. Broad River Tp., 50 S. C. 321, the court said: "That act could only legalize and validate the contracts or obligations that were legal; and no contract could be legal that was not constitutional, no act of the old company could be legal or valid which in its incipi- ency and at its completion was clear- ly unconstitutional and void; there- fore, this act to declare, if that had been its purpose, that such bonds issued in pursuance of it was legal and valid, would be beyond the scope of the legislature itself." Shell v. Carter County (Tenn. Ch. App.) 42 S. W. 78. An order of a county court authorizing the pay- ment of coupons was not considered here a ratification of the bonds from which the coupons were detached. Cumberland County Sup'rs v. Ran- dolph, 89 Va. 614; Knapp v. Grant, 27 Wis. 147. The fact that a city council was proceeding to levy and assess a tax to pay bonds, and re- sisted plaintiff's application for an injunction to restrain such tax, was held sufficient evidence of a ratifica- tion by the city of the issue of the bonds. Stated negatively, the rule is that the legislature cannot, "by retro- spective act exercise greater power than they could prospectively." See the following cases: Elmwood Tp. v. Marcy, 92 U. S. 289; Katzenberger v. City of Aberdeen, 121 U. S. 172; Quaker City Nat. Bank v. Nolan County, 59 Fed. 660; Marshall v. Silliman, 61 111. 218; Cairo & St. L. R. Co. v. City of Sparta, 77 111. 505; Barnes v. Town of Lacon, 84 111. 461; Gaddis v. Richland County, 92 111. 119; Choisser v. People, 140 111. 21. Shawnee County Com'rs v. Carter, 2 Kan. 115. "The act differs from those retrospective laws which are frequently passed supplying defects and curing informalities in the pro- ceedings of officers and tribunals acting within the scope of their authority. The County commission- ers were not acting within the scope of their authority in issuing these bonds. They did not conform to the law only in an irregular way but they broke down the barriers which the law had raised in a very regular way, and their acts in the premises were void not for want of any formality or regularity or mistake as to time or otherwise but for want of power under the law." Sykes v. Town of Colum- bus, 55 Miss. 115; Hasbrouck v. City of Milwaukee, 13 Wis. 37. *" 3 Town of Duanesburgh v. Jenk- ins, 57 N. Y. 177, 191. The court say: "How the consent of a town shall be given is clearly in the dis- 458 POWERS. 200 the legal authority to issue, 474 whether such defect of power arises from the fact that there was no legally incorporated organ ization capable of issuing bonds, 475 or granting the existence of cretion of the legislature. It has often given it to the majority in number and amount of taxpayers; it may give it to the supervisor, or any other officer, since the whole power is of its creation, and since the consent of all the taxpayers or inhabitants but one is powerless to bind the single dissentient, except upon the theory of the complete and plenary power of the legislature in the premises. In this case a com- missioner has been regularly ap- pointed under the statute, by whom bonds were to be issued and stock subscribed for, provided certain consents were obtained and proofs filed according to the requirements of the several acts upon the subject. Consents were obtained and proofs were made and filed which are now, on the one side, claimed to be, and on the other are denied to be, in conformity to the law. The com- missioner, meanwhile, executed the bonds, subscribed for stock and de- livered the bonds to the company in payment of the subscription; complying with the requirements of the statute in all respects, if the requisite consents had been given and proofs made. The only officer of the town who had any duty in the premises, acted by giving the bonds, and the legislature, seeing the whole matter, released the con- ditions which it had imposed, and declared his assent binding upon the town, if the bonds had been is- sued and the road had been built, and the bonds in that case obliga- tory. As it might have authorized action in this way and on these con- ditions, by the town, originally, I seen no objections to giving effect to its ratification of the action of the town and holding its consent, thus expressed, effectual." *T4 steele County v. Erskine (C. C. A.) 98 Fed. 215, affirming judg- ment in Erskine v. Steele County, 87 Fed. 630; Campbell v. City of Indianapolis, 155 Ind. 186; Nolan County v. State, 83 Tex. 182, 17 S. W. 823; Knapp v. Grant, 27 Wis. 147. *-5Beloit v. Morgan, 74 U. S. (7 Wall.) 619; Comanche County v. Lewis, 133 U. S. 198; Harper Coun- ty Com'rs v. Rose, 140 U. S. 71; Ashley v. Presque Isle County Sup'rr; 60 Fed. 55; Cornell University v. Village of Maumee, 68 Fed. 418. Bonds duly and lawfully issued by a municipal corporation cannot be rendered invalid in the hands of a bona fide holder by the fact that such corporation, though properly a city, has issued such bonds under the name of a village, having previously been recognized as a village in an act of the legislature changing its name, and having levied and col- lected taxes, passed ordinances and otherwise acted as such. New York Life Ins. Co. v. Cuya- hoga County Com'rs (C. C. A.) 106 Fed. 123; School Dist. No. 25 v. State, 29 Kan. 57. A corporation de facto authorized to issue bonds. Riley v. Garfield Tp., 54 Kan. 463. Although the original organization of Garfield County was without au- thority from the constitution con- taining an area of less than 432 square miles by actual survey, yet as the statute creating the county 200 ISSUANCE OF SECURITIES. 459 a legal corporation that such corporation did not, possess the legal power to issue the bonds or to issue them for the precise purpose. 476 Again the defect of power may arise because of a total lack of such authority or because of an issue of bonds in excess of an amount authorized. Curative acts which ratify or attempt to ratify void bonds are not usually held constitu- tional because in violation of provisions to the effect that special laws shall not be passed where a general law can be made ap- plicable, nor are such acts held in violation of constitutional pro- visions prohibiting the legislature from passing special laws con- ferring corporate powers. 477 Neither do such acts violate a prohibition in the constitution against retroactive law T s. 478 Where irregularities in the manner of the exercise of a power exist, a municipal corporation may, upon a full knowledge of all the circumstances in the case, ratify did not show that its area was less, and was not void upon its face, the county had a de facto organization. The records of such organization ap- peared regular and valid, state offi- cials proclaimed the organization, and its validity was subsequently recognized by them and the legisla- ture. All of the bonds issued by Garfield County under the provi- sions of the statute and in regular form while its organization as a county was in existence are valid obligations in the hands of bona fide purchasers. 6 utter v. Franklin, 172 U. S. 416; Schneck v. City of Jefferson- ville, 152 Ind. 204, 52 N. E. 212. 477 In Read v. City of Plattsmouth, 107 U. S. 568, coupon bonds were issued without authority of law and the legislature passed an act legal- izing them. This was held not to be a violation of that provision in the constitution which provides that "the legislature shall pass no spe- cial act conferring corporate pow- ers" as the act merely recognized the existence of an obligation and provided a medium for enforcing payment according to the original intention of the parties. No new cor- porate powers were thereby con- ferred. Springfield Safe Deposit & Trust Co. v. City of Attica (C. C. A.) 85 Fed. 387. 478 in the case of City of New Or- leans v. Clark, 95 U. S. 644, Mr. Jus- tice Field said: "A law requiring a municipal corporation to pay a demand which is without legal ob- ligation 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 appro- priation act providing for the pay- ment of a pre-existing claim. The constitutional inhibition does not apply to legislation recognizing or affirming the binding obligation of the state, or of any of its subordi- nate agencies with respect to past transactions. It is designed to pre- vent retrospective legislation in- juriously affecting individuals and thus protect vested rights from in- vasion." 460 POWERS. 201 an illegal issue of bonds by the payment of interest, 479 their de- livery or other act 480 that will be regarded by the courts as tan- tamount to a ratification. The doctrine of ratification will only apply, however, in cases where the party ratifying possesses the original power to perform the act ratified. If the bonds are void because of want of authority, the doctrine cannot apply. 481 201. Negotiable bonds; their validity. The presumption of law at all times exists in favor of the valid- ity of negotiable bonds, both as to the sufficiency of power and the existence of all conditions and requirements necessary to and attendant upon their formal execution and delivery. This pre- sumption throws upon the party attacking their validity, the burden of proof as to all questions raised. 482 This presumption 479 Cass County v. Gillett, 100 U. S. 585; Inhabitants of Pompton v. Cooper Union, 101 U. S. 196; Irwin v. Town of Ontario, 3 Fed. 49; Portsmouth Sav. Bank v. City of Springfield, 4 Fed. 276; First Nat. Bank of Oswego v. Town of Wal- cott, 7 Fed. 892; Denison v. City of Columbus, 62 Fed. 775, affirming 69 Fed. 58; Treadway v. Schnauber, 1 Dak. 236; Johnson v. County of Stark, 24 111. 75; Keithsburgh v. Frick, 34 111. 405; Jones v. Cullen. 142 Ind. 335; Leavenworth, L. & G. R. Co. v. Douglas County Com'rs, 18 Kan. 170; Town of Lexington v. Union Nat. Bank, 75 Miss. 1, 22 So. 291; State v. Van Home, 7 Ohio St. 327; Kellogg v. Ely, 15 Ohio St. 64. *8o City of Hannibal v. Fauntle- roy, 105 U. S. 408. 48i See authorities cited under note 472 of this section. Citizens' Sav. & Loan Ass'n v. City of To- peka, 87 U. S. (20 Wall.) 655. "We do not attach any importance to the fact that the town authorities paid one installment of interest on these bonds. Such a payment works no estoppel. If the legislature was without power to authorize the issue of these bonds and its statute at- tempting to confer such authority is void, the mere payment of inter- est which was equally unauthorized cannot create of itself a power to levy taxes resting on no other found- ation than the fact that they have once been illegally levied for that purpose." Commercial Nat. Bank v. lola City, 22 L. Ed. 463; City of Parkersburg v. Brown, 106 U. S. 487; Daviess County v. Dickinson, 117 U. S. 657; Doon Tp. v. Cum- mins, 142 U. S. 366; Thomas v. Town of Lansing, 14 Fed. 618; Cowdrey v. City of Caneadea, 16 Fed. 532; Steb- bins v. Perry County, 167 111. 567; Falkenstein Tp. v. Fetch, 2 Kan. App. 193; Weismer v. Village of Douglas, 4 Hun (N. Y.) 201; Union Bank v. Oxford Com'rs, 119 N. C. 214, 34 L. R. A. 487. *82 Meyer v. City of Muscatine, 68 U. S. (1 Wall.) 384; Murray v. Lardner, 69 U. S. (2 Wall.) 110. Coupon bonds, of the ordinary kind, payable to bearer, pass by delivery and a purchaser of them, in good faith, is unaffected by want of title 201 ISSUANCE OP SECURITIES. 461 of validity applies equally to the extent of necessary legal au- thority, the performance of all necessary acts by public officials in the vendor. The burden of proof, on a question of such faith, lies on the party who assails the possession. Marshall County Sup'rs v. Schenck, 72 U. S. (5 Wall.) 772; City of Lex- ington v. Butler, 81 U. S. (14 Wall.) 282. "Issued by authority of law, as the bonds purport to have been, and being, by the regular indorse- ment thereof, made payable to bear- er, they lawfully circulated from holder to holder by delivery, and the plaintiff having purchased four of the number in market overt, be- came the lawful indorsee and hold- er of the same, together with the coupons annexed, and the interest secured by the coupons being un- paid he instituted the present suit to recover the amount. Evidently, the prima facie presumption in such a case is that the holder acquired the bonds before they were due, that he paid a valuable considera- tion for the same, and that he took them without notice of any defect which would render the instruments invalid." County of Henry v. Nico- lay, 95 U. S. 619; City of San An- tonio v. Mehaffy, 96 U. S. 312; Cum- mins v. District Tp. of Boon, 42 Fed. 644; Keene Five-Cent Sav. Bank v. Lyons County, 90 Fed. 523; Lake County Com'rs v. Keene Five- Cent Sav. Bank (C. C. A.) 108 Fed. 505; Washington County v. Wil- liams (C. C. A.) Ill Fed. 801; Fi- delity Trust & Guaranty Co. v. Fowl- er Water Co., 113 Fed. 560; Ger- man Sav. & Loan Soc. v. Ramish, 138 Cal. 120, 69 Pac. 89, 70 Pac. 1067; Lake County Com'rs v. Stand- ley, 24 Colo. 1, 49 Pac. 23; Lake County Com'rs v. Linn, 29 Colo. 446, 68 Pac. 839; Brand v. Town of Lawrenceville, 104 Ga. 486, 30 S. E. 954. In Choisser v. People, 140 111. 21, and in Sampson v. People, 140 111. 466, the burden of proof, it is held, is upon the party asserting the val- idity of bonds; see, however, Hutch- inson v. Self, 153 111. 542, decided subsequently holding the rule given in the text. People v. Town of Harp, 67 111. 62; City of Aberdeen v. Sykes, 59 Miss. 236; Coler v. Santa Fe County Com'rs, 6 N. M. 88, 27 Pac. 619. Neely v. Yorkville, 10 S. C. 141. If a corporation has previously ex- hausted its power by issuing other bonds to the full extent of its pow- er, the onus of showing the fact is upon the corporation. Walker v. State, 12 S. C. 200; City of Memphis v. Bethel (Tenn. Ch. App.) 17 S. W. 191. In an ac- tion upon coupons representing the interest on certain city bonds, the fact that relator is the holder there- of, and that they were payable to bearer is sufficient evidence of own- ership and casts the burden of dis- proving ownership upon the city. Galbraith v. City of Knbxville, 105 Tenn. 453, 58 S. W. 643; Simonton, Mun. Bonds, 163. "But the de- fendant may give evidence to show that the bonds were fraudulently issued or that the conditions pre- cedent were not performed or that they had been lost or stolen before plaintiff received them and if de- fendant proves such defense, the burden is then shifted on the plain- tiff to prove that he is a bona fide holder." Marion County Com'rs v. Clark, 94 U. S. 278; Cromwell v. County of Sac, 96 U. S. 51; Stew- 462 POWERS. 202 and the existence of all the conditions necessary to warrant the issue of valid bonds. 483 202. As affected by adverse decisions of a state court. The Federal authorities have adopted without dissent the rule that where a public corporation under authority of law has is- sued its bonds, negotiable in their character and payable to bearer at a future date, and which under the judicial decisions of the state are valid at the time of issue, that their validity before maturity, in the hands of bona fide purchasers, cannot be affected by subsequent decisions of the state courts holding the law, under authority of which the bonds were issued, unconstitu- tional or void. 484 Such decisions may affect the validity of bonds art v. Town of Lansing, 104 U. S. law under which they were author- 505; City of San Antonio v. Lane, ized unconstitutional and the bonds 32 Tex. 405. void. The opinion of the U. S. su- ^ss City of Gladstone v. Throop preme court was delivered by Jus- (C. C. A.) 71 Fed. 341; City of tice Swayne who said in part: "The South St. Paul v. Lamprecht Bros, late case in Iowa and two other Co. (C. C. A.) 88 Fed. 449; Union cases of a kindred character in an- Bank of Richmond v. Oxford Com'rs, other state also overruling earlier 90 Fed. 7; Burlington Sav. Bank adjudications stand out as far as v. City of Clinton, 106 Fed. 269. Im- we are advised in unenviable soli- provement bonds not invalid because tude and notoriety. However we the method provided by statute for may regard the late case in Iowa assessing the cost of improvements affecting the future, it can have no against the abutting property is effect upon the past. 'The sound illegal. and true rule is, that if the con- Lake County Com'rs v. Keene tract when made was valid by the Five-Cent "Sav. Bank (C. C. A.) 108 laws of the state as then expound- Fed. 505; Floyd County Com'rs v. ed by all departments of the gov- Shorter, 50 Ga. 489; Akin v. Ordi- ernment and administered in its nary of Bartow County, 54 Ga. 59; courts of justice, its validity and State v. Hordey (Kan.) 18 Pac. obligation cannot be impaired by 942. any subsequent action of legislation, *84 Gelpcke v. City of Dubuque, 68 or decision of its courts, altering U. S. (1 Wall.) 175. The decision the construction of the law.' The of the supreme court of Iowa in the same principle applies where there case of State v. County of Wapello, is a change of judicial decision as 13 Iowa, 390, overruled by a unan- to the constitutional power of the imous opinion, former decisions o legislature to enact the law. To this that court sustaining the validity rule, thus enlarged, we adhere. It of certain bonds and holding the is the law of this court. * * * 202 ISSUANCE OF SECURITIES. 463 not issued, but all persons into whose hands bonds already issued may come have the right to consider the constitutionality of such authority conclusively established. 486 The validity of coupon bonds in the hands of innocent holders, it has even been held, will not be affected by the pendency of suits brought to test the question of their legality where the bonds were purchased dur- ing the pendency of such suit. 486 If, however, the holders of such bonds are made parties to such litigation or as a few cases To hold otherwise would be as un- just as to hold that rights acquired under a statute may be lost by its repeal." Lee County v. Rogers, 74 U. S. (7 Wall.) 181; City of New York v. Lamson, 76 U. S. (9 Wall.) 477; Callaway County v. Foster, 93 U. S. 567; Douglass v. Pike County, 101 U. S. 677; Union Bank v. Ox- ford Com'rs, 90 Fed. 7, reversed in (C. C. A.) 96 Fed. 293; Durant T. Iowa County, 1 Woolw. 69, Fed. Cas. No. 4,189; Smith v. Tallapoosa Coun- ty, 2 Woods, 574, Fed. Cas. No. 13,113; Columbia County Com'rs v. King, 13 Fla. 451; Steines v. Frank- lin County, 48 Mo. 167; State v. Saline County Ct, 48 Mo. 390; Bailey v. Town of Lansing, 13 Blatchf. 424, Fed. Cas. No. 738; Stallcup v. City of Tacoma, 13 Wash. 141. *8s Warren County v. Marcy, 97 U. S. 96; United States v. Lee County Sup'rs, 2 Biss. 77, Fed. Cas. No. 15,589. Where county bonds had been sold upon the faith of de- cisions of the supreme court of the state declaring their validity, the fact that the court afterwards re- versed its decision does not inval- idate those previously purchased in good faith before maturity. Smith v. Tallapoosa County, 2 Woods. 574, Fed. Cas. No. 13,113; Waples v. City of Dubuque, 116 Iowa, 167, 89 N. W. 194. *86 Warren County v. Marcy, 97 U. S. 96. The rule that all persons are bound to take notice of a suit pending with regard to the title to property and that they at their peril buy the same from any of the liti- gating parties does not apply to ne- gotiable securities purchased before maturity. Town of Orleans v. Platt, 99 U. S. 676; Cass County v. Gillett, 100 U. S. 585. A bona fide purchaser of negotiable securities before their maturity is not affected with con- structive notice of a suit pending. Carroll County v. Smith, 111 U. S. 556. The issuing of a temporary injunction which was afterwards made permanent by a state court restraining municipal officers from issuing municipal bonds does not estop a bona fide holder who was not a party to the suit from main- taining title to such bonds issued after the temporary injunction. Miller v. Ferris Irr. Dist, 99 Fed. 143. A de facto corporation may legally do and perform every act which it could do were it a de jure corporation. Its acts are valid as to third persons except where chal- lenged by the state in direct pro- ceedings; bonds issued, therefore, by a de facto corporation, are valid even where the state subsequently 464 POWERS. 203 hold have actual knowledge of its pendency, this rule would not apply. 487 The doctrine stated in this section applies to the validity of negotiable bonds, not only under the conditions already named but also to acts ratifying or attempting to ratify a void issue of bonds although the judicial policy of the state may be against the constitutionality of the ratification act, yet before such de- cision, if bonds ratified by a legislature have passed into the hands of bona fide purchasers, such subsequent decision by the courts of the state cannot affect their validity. 203. Validity of issue in excess of legal authority. A public corporation may possess the legal authority to issue negotiable bonds to and including a certain amount. There may be constitutional provisions prohibiting the incurring of indebt- edness in excess of this amount, or the special authority may be limited to such amount. The corporation does, however, issue its negotiable bonds in excess of the sum thus legally authorized and the question of the validity of such excess bonds then arises. There are found two lines of decisions, the one holding that the bonds issued in excess of the amount authorized are totally void, even in the hands of bona fide purchasers, 488 the other holding In a direct proceeding attacking the edge of proceedings when he becomes validity of the organization of such the owner and holder, he is conclud- corporation secures a judgment de- ed by them. daring it void; citing, Shapleigh v. Diamond v. Lawrence County, 37 City of San Angelo, 167 U. S. 646; Pa. 353. The purchaser of bonds Havemeyer v. Iowa County, 70 U. pendente lite and all subsequent B. (3 Wall.) 294; Ashley v. Presque purchasers are affected by a decree Isle County Sup'rs (C. C. A.) 60 of the court in a suit pending at Fed. 55; Phelps v. Town of Lewis- the time of the purchase; such ton. 15 Blatchf. 131, Fed. Cas. No. bonds, however, not having the qual- 11,076. ity of commercial paper in Pennsyl- *" Stewart v. Town of Lansing, vania. 104 U. S. 505; Durant v. Iowa Conn- *ss Francis v. Howard County, 50 ty, 1 Woolw. 69, Fed. Cas. No. 4,189. Fed. 44. The bonds issued by a The pendency of a suit to restrain county in excess of the amount al- the transfer of bonds and a decree lowed by law are void and their col- in such suit that they be delivered lection cannot be enforced even by up to be canceled, are inoperative a bona fide purchaser for value; and as respects a bona fide holder for when a number of bonds partially value. But if he have actual knowl- invalid on this account, are issued 204 ISSUANCE OF SECURITIES. 465 that where a public corporation has issued bonds to an amount in excess of its constitutional or legislative authority, all of which were issued at the same time, each bond is valid to the extent of its proportionate share of the indebtedness authorized. 489 In the first line of authorities, there are some which hold that if the bonds in excess of the constitutional or statutory limitation can be separated from those within such limit, the former will be held void and the latter valid. 490 204. Legality as affected by subsequent legislation. If there exists a reason for the doctrine as stated in a pre- ceding section in regard to subsequent adverse decisions of the courts as affecting the validity of bonds, good at the time of is- sue, there is an irrefutable reason for the principle followed by all courts, state as well as Federal, that the validity of bonds, corporate indebtedness or obligations is determined by laws in force at the time when such bonds were issued or obligations in- curred. They cannot be affected by changes subsequently made and this rule would apply in the case of bonds authorized but and delivered at the same time, or at different times as part of one transaction, the invalid portion should be equally distributed among all and none should have pri- ority. Aetna Life Ins. Co. v. Lyon Coun- ty, 95 Fed. 325; Everett v. Inde- pendent School Dist. of Rock Rap- ids, 109 Fed. 697; Sutro v. Pettit, 74 Cal. 332; Sutro v. Rhodes, 92 Cal. 117; Catron v. 'La Fayette County, 106 Mo. 659. Borough of Millers- town v. Frederick, 114 Pa. 435, holds the whole issue void where a portion is in excess of the consti- tutional limitation. Mitchell Coun- ty v. City Nat. Bank, 15 Tex. Civ. App. 172, 39 S. W. 628. 489 City of Columbus v. Woon- socket Inst. of Savings (C. C. A.) 114 Fed. 162. Where a city has Is- sued bonds to an amount in excess of its constitutional authority, all of which were created by the same ordinance and sold at the same time, each bond is valid to the extent of its proportionate share of the debt lawfully contracted. Gillim v. Daviess County, 12 Ky. L. R. 596, 14 S. W. 838; Nolan Coun- ty v. State, 83 Tex. 182, 17 S. W. 823. If bonds issued by a county in excess of the amount of the bonded debt which it could legally create were issued at the same time, the amount of the valid debt should be distributed between them pro rata. 490 Daviess County v. Dickinson, 117 U. S. 657; City of Litchfield v. Ballou, 114 U. S. 190; Merchants' Exch. Nat. Bank v. Bergen County, 115 U. S. 384; McPherson v. Foster Bros., 43 Iowa, 48; Catron v. La Fayette County, 106 Mo. 659; Ball v. Presidio County, 88 Tex. 60, 29 S. W. 1042. Abb. Corp. 30. 466 POWERS. 204 not yet formally executed and delivered. 491 This rule also ap- plies to legislation which impairs or destroys the power of a public corporation to levy taxes for the payment of either prin- cipal or interest of bonds legally issued when at the time of such issue the power to levy taxes for this specific purpose existed. The power to levy taxes, it is held, is a part of the contract be- tween the corporation and the holder of negotiable bonds which cannot be impaired by subsequent action in violation of that provision of the Federal constitution forbidding the passage of laws impairing the obligation of a contract. 492 The principle also prevents the passage of legislation or other action diverting funds or property which at the time of the issue of the bonds 49i Callaway County v. Foster, 93 U S. 567; German Sav. Bank v. Franklin County, 128 U. S. 526. Where the court in the syllabi say: "After a statute has been settled by judicial construction, the construc- tion becomes, so far as contract rights acquired under it are con- cerned, as much a part of the stat- ute as the text itself." Board of Education of Dist No. 3 v. Bolton, 104 111. 220. But see Wade v. Town of La Moille, 112 111. 79, and Williams v. People, 132 111. 574 ; Slocomb v. City of Fayetteville, 125 N. C. 362; People v. Otis, 90 N. Y. 48; Knapp v. Town of Newtown, 1 Hun (N. Y.) 268; Dodge v. Platte County, 16 Hun (N. Y.) 285; Marsh v. Town of Little Valley, 4 T. & C. (N. Y.) 116; Gibson v. Knapp, 21 Misc. 499, 47 N. Y. Supp. 446; City of Mitchell v. Smith, 12 S. D. 241, 80 N. W. 1077; Stallcup v. City of Ta- coma, 13 Wash. 141. A purchaser has the right to rely on the existing construction, a law authorizing the issue of bonds. * 82 Von Hoffman v. City of Quincy, 71 U. S. (4 Wall.) 535; City of Ga- lena v. Amy, 72 U. S. (5 Wall.) 705; Riggs T. Johnson County, 73 U. S. (6 Wall.) 166; Rees v. City of Wa- tertown, 86 U. S. (19 Wall.) 107; Louisiana v. City of New Orleans, 102 U. S. 203; Wolff v. City of New Orleans, 103 U. S. 358; Louisiana v. Pilsbury, 105 U. S. 278; Rails Coun- ty Ct. v. United States, 105 U. S. 733; Louisiana v. City of New Or- leans, 109 U. S. 285; Port of Mobile v. Watson, 116 U. S. 289; Seibert v. Lewis, 122 U. S. 284; United States v. Howard County Ct, 2 Fed. 1; Devereaux v. City of Brownsville, 29 Fed. 742; Hicks v. Cleveland (C. C. A.) 106 Fed. 459; Padgett v. Post (C. C. A.) 106 Fed. 600; Maenhaut v. City of New Orleans, 2 Woods, 108, Fed. Gas. No. 8,939; United States v. Jefferson County, 5 Dill. 310, Fed. Cas. No. 15,472; United States v. Johnson County, 5 Dill. 207, note, Fed. Cas. No. 15,489; United States v. Treasurer of Muscatine County, 2 Abb. 53, Fed. Cas. No. 16,538; Columbia County Com'rs v. King, 13 Fla. 451; Peoria, D. & E. R. Co. v. People, 116 111. 401; Moore v. City of New Orleans, 32 La. Ann. 726; State v. St. Louis, K. & N. W. R. Co., 130 Mo. 243; Munday v. City of Rahway, 43 N. J. Law, 338; McCless v. Meek- ins, 117 N. C. 34; Morton v. Comp- 205 ISSUANCE OF SECURITIES. 467 was either devoted or to be devoted to the payment of either their principal or interest. 493 The general tendency of all courts, both federal and state, is to protect the contract obligation exist- ing in favor of the bona fide purchaser of negotiable securities issued by public corporations. The clause of the Federal consti- tution prohibiting a state from passing any law impairing the obligation of a contract affords a real and substantial protection to the investor. 205. Securities of public corporations; their legal character. Bonds issued by public corporations, either with or without coupons attached, were, at first, considered by the courts as non- negotiable instruments; later, however, they came to be recog- nized as negotiable paper and bona fide holders for value were protected to the same extent as holders of negotiable notes and bills under the law merchant. They arc now fully and univer- sally recognized as negotiable instruments. 494 They are also con- troller General, 4 S. C. (4 Rich.) 430; City of Memphis v. Bethel (Term.) 17 S. W. 191. 493 Edwards v. Kearzey, 96 U. S. 595; Louisiana v. Police Jury of St. Martin's Parish, 111 U. S. 716; St. Tammany Water Works v. New Or- leans Water Works, 120 U. S. 64; Lehigh Water Co. v. Borough of Easton, 121 U. S. 388; McGahey v. State of Virginia, 135 U. S. 662; Sun Mut. Ins. Co. v. Board of Liquida- tion of New Orleans, 24 Fed. 4; Fazende v. City of Houston, 34 Fed. 95; Saginaw Gas Light Co. v. City of Saginaw, 28 Fed. 529; Willis v. Miller, 29 Fed. 238; Coast Line R. Co. v. City of Savannah, 30 Fed. 646; Maenhaut v. City of New Or- leans, 2 Woods, 108, Fed. Cas. No. 8,939; Edwards v. Williamson, 70 Ala. 145; Brodie v. McCabe, 33 Ark. 690; English v. Sacramento City & County Sup'rs, 19 Cal. 172 (Sinking fund tax) ; Board of Liquidators of City Debts v. Municipality No. 1, 6 La. Ann. 21; State v. Board of Liqui- dation of City Debt, 40 La. Ann. 398; State v. Walsh, 31 Neb. 469; Brook- lyn Park Com'rs v. Armstrong, 45 N. Y. 234; People v. Common Coun- cil of Buffalo, 140 N. Y. 300; Lilly v. Taylor, 88 N. C. 489; Goodale v. Fennell, 27 Ohio St. 426; Bassett v. City of El Paso, 88 Tex. 168, 30 S. W. 893; Terry v. Wisconsin M. & F. Ins. Co. Bank, 18 Wis. 87; Smith v. City of Appleton, 19 Wis. 468. 494 Mercer County v. Racket, 68 U. S. (1 Wall.) 83. Gelpcke v. City of , Dubuque, 68 U. S. (1 Wall.) 175. "Bonds and coupons like these by universal commercial usage and con- sent have all the qualities of com- mercial paper." Meyer v. City of Muscatine, 68 U. S. (1 Wall.) 384. Police Jury of Tensas v. Britton, 82 U. S. (15 Wall.) 566. "The bonds and coupons on which a recovery is now sought are commercial instru- ments, payable at a future day and transferable from hand to hand. 468 POWERS. 205 sidered chattels in so far as that character tends to relieve them from defenses and burdens incident to choses in action and to give them a merchantable character for investment and commer- cial purposes. 496 The legal effect of such a character is to place them on an equality before the law with ordinary negotiable paper pertaining to the commercial business of the country and to make them marketable and vendible and before maturity, free of equities between the original parties. 498 Such instruments transferred be- fore maturity to a bona fide pur- chaser leave behind them all equi- ties and inquiries into consideration and the conduct of parties; and be- come, in the hands of an inno- cent holder, clean obligations to pay, without any power on the part of the municipality to de- mand any inquiry as to the justice or legality of the original claim, or to plead any corrupt practice of the parties in obtaining the security. This characteristic of commercial paper, which no court has more faithfully enforced than this, raises the doubt whether the power to issue It can be implied from the ordinary powers of local administration and police which are conferred upon the boards and trustees of political dis- tricts." City of Nashville v. Ray, 86 U. S. (19 Wall.) 468; Humboldt Tp. v. Long, 92 U. S. 642; Marion County Com'rs v. Clark, 94 U. S. 278; Car- ter County v. Sinton, 120 U. S. 517, 7 Sup. Ct. 650; County of Wilson v. Third Nat. Bank, 103 U. S. 770. The words to "bearer" or "order" are not essential to negotiability. City of Ottawa v. First Nat. Bank, 105 U. S. 342. See note to White v. Vermont & M. R. Co., 16 L. Ed. 221; Griffith v. Burden, 35 Iowa, 138; Craig v. City of Vicksburg, 31 Miss. 216. But a bond not complying with the requirements of negotiable paper lacking, for instance, a definite and certain sum to be paid, will not be considered negotiable. See Parsons v. Jackson, 99 U. S. 434; Hopper v. Town of Covington, 8 Fed. 777; Id., 118 U. S. 148; 1 Daniel, Neg. Inst. 53; City of Memphis v. Brown, 11 Am. Law Reg. (N. S.) 629. 495 City of Memphis v. Brown, 11 Am. Law Reg. (N. S.) 629; Griffith v. Burden, 35 Iowa, 138; State v. Cunningham, 51 Mo. 479; Force v. City of Elizabeth, 27 N. J. Eq. 408. 496 Murray v. Lardner, 69 U. S. (2 Wall.) 110; Aurora City v. West, 74 U. S. (7 Wall.) 82; Marion Coun- ty Com'rs v. Clark, 94 U. S. 278; Durant v. Iowa County, 1 Woolw. 69, Fed. Gas. No. 4,189; Griffith v. Bur- den, 35 Iowa, 138; Consolidated Ass'n of Planters v. Avegno, 28 La. Ann. 552; First Nat. Bank of St. Paul v. Scott County Com'rs, 14 Minn. 77 (Gil. 59). Where negotia- ble bonds bearing interest annually have attached coupons for the pay- ment of interest and are transferred with overdue coupons still attached, the purchaser takes them subject to any infirmity of title in the seller. The fact that the coupons are by their terms payable on presentation to a particular person does not af- fect this rule. Belo v. Forsythe County Com'rs, 76 N. C. 489; Boyd v. Kennedy, 38 205 ISSUANCE OF SECURITIES. 469 The authorities also hold that this character makes them ex- empt from the defense of usury founded on the fact that they may have been issued and sold below par value, 497 and also sub- ject to the rule of damages in an action for conversion which applies to chattels rather than that which applies to private evi- dence of debt. 498 As between parties by delivery, unless regis- tered, the bearer has full title and the maker cannot set up against one who has taken them in good faith, equities which might be available against the original payee provided they were not utterly void in their inception. Their legal character, as thus stated, is sustained at the present time by an overwhelming and universal weight of authority. 499 The statutory authority to issue bonds bearing interest, run- ning for a long time and payable to bearer or with provisions for registration, usually authorizes, by implication, the issuance of bonds fully negotiable in their character according to the usual rules of the law merchant. 600 N. J. Law, 146. See Diamond v. Lawrence County, 37 Pa. 353, as an early case holding that a county bond is subject, even in the hands of innocent holders, to equities ex- isting against them in favor of the maker. Such bonds not having, however, the quality of commercial paper in Pennsylvania. "We will not treat bonds like these as nego- tiable securities: on this ground we stand alone. All the courts, Amer- ican and English, are against us." This holding has since been revers- ed. See Mason v. Frick, 105 Pa. 162. 49" Richardson v. Lawrence Coun- ty, 154 U. S. 536; Woods v. Law- rence County, 1 Black (U. S.) 386, 410. 498 Meixell v. Kirkpatrick, 33 Kan. 282; Murray v. Stanton, 99 Mass. 345. 499 Durant v. Iowa County, 1 Woolw. 69, Fed. Gas. No. 4,189; Han- cock v. Chicot County, 32 Ark. 575; Lindsey v. Rottaken, 32 Ark. 619; Jefferson County v. Burlington & M. R. R. Co., 66 Iowa, 385; Maddox v. Graham, 59 Ky. (2 Mete.) 56; Cecil v. Board of Liquidation, 30 La. Ann. 34, 51 Am. St. Rep. 822-861, 98 Am. Dec. 664-691; Simonton, Mun. Bonds, BOO City of Cadillac v. Woonsocket Inst. for Savings (C. C. A.) 58 Fed. 935. "This act clearly authorizes the issuance of 'bonds' bearing a legal rate of interest for any loans lawful- ly made. It also empowers the coun- cil to issue 'new bonds,' to extend the time of payment of 'bonds fall- ing due.' That this contemplates, and by necessary implication author- izes, the issue of negotiable bonds we have no doubt. The general power to issue 'bonds' must be taken to authorize 'bonds' in the usual form of such well known commer- cial obligations. That usual form embodies a contract and obligation negotiable in its terms." Distin- guishing Brenham v. German Amer- ican Bank, 144 U. S. 173. Ashley v. Presque Isle County 470 POWERS. 206 206. Validity of negotiable securities. The doctrine of es- toppel. Bonds possessing all of the elements and characteristics of ne- gotiable paper, as stated in the preceding section, are not sub- ject, before maturity, when in the hands of bona fide and inno- cent purchasers for value, to equities that may exist in favor of the maker of such bonds. The doctrine of estoppel has been held to apply to the maker through acquiescence in the existence of certain conditions or circumstances which might, if taken ad- vantage of speedily, relieve it from its obligation, through the principle of estoppel by recitals, course of dealing and the pay- ment of interest to be considered in succeeding sections. The nonperformance of conditions required to be fulfilled by the party entitled to bonds, if acquiesced in, is not sufficient to render such bonds invalid. 501 A public corporation that has as such voted for and issued bonds, it has been held, is estopped from setting up as a defense against an innocent holder that it never was incorporated. 502 So also is a public corporation hav- Sup'rs (C. C. A.) 60 Fed. 55; West Plains Tp. v. Sage (C. C. A.) 69 Fed. 943; Howard v. Kiowa County, 73 Fed. 406; German Ins. Co. v. City of Manning, 78 Fed. 900; D'Esterre v. City of Brooklyn, 90 Fed. 586; City of Austin v. Nalle, 85 Tex. 520, 22 S. W. 668, 960; Winston v. City of Ft. Worth (Tex. Civ. App.) 47 S. W. 740. BOX Knox County Com'rs v. Aspin- wall, 21 How. (U. S.) 539; Randolph County v. Post, 93 U. S. 502, and cases cited; Augusta Bank v. City of Augusta, 49 Me. 507; Deming v. In- habitants of Houlton, 64 Me. 254; Shurtleff v. Inhabitants of Wiscas- set, 74 Me. 130. In Morril v. Smith County (Tex. Civ. App.) 33 S. W. 899, it is held, however, that where the fact of the non-performance of conditions can be ascertained by an inspection of the records on the part of the purchaser, the corporation will not be estopped to set such up as a defense. so2Aller v. Cameron, 3 Dill. 198, Fed. Cas. No. 243. See, also, Na- tional Life Ins. Co. v. Board of Edu- cation of Huron, 62 Fed. 778, where the illegality of an incorporation was set up as a defense to bonds is- sued by a board of education organ- ized as a corporate body. The court in its opinion say: "It was recog- nized and its action was acquiesced in, by the state and by the citizens, for at least 18 months; and, as against bona fide purchasers of its bonds, its acts, as a de facto board of education, if within the powers granted to a board legally organized under this law, are binding upon the defendant corporation. It is the province of the state to question, by proper judicial proceedings, its in- corporation; not that of a defend- ant in a private suit, when it has as- 206 ISSUANCE OF SECURITIES. 471 ing the authority to issue bonds for one purpose estopped from setting up as a defense against a bona fide and innocent pur- chaser of such bonds, the fact that the moneys derived from their sale were used for a different purpose, perhaps an illegal one, from that for which they purported or were authorized to be issued or that such moneys were never expended for the bene- fit of the Corporation. 503 Some authorities also hold that where serted its corporate existence, and incurred liabilities to innocent par- ties on the faith of it. 'When a municipal body has assumed, under color of authority, and exercised, for any considerable period of time, with the consent of the state, the powers of a public corporation, of a kind recognized by the organic law, neith- er the corporation nor any private party can, in private litigation, ques- tion the legality of its existence.' " See cases cited. sosHackett v. City of Ottawa, 99 U. S. 86. "It would be the grossest injustice and in conflict with all the past utterances of this court to per- mit the city, having power under some circumstances to issue negotia- ble securities, to escape liability upon the ground of the falsity of its own representations, made through official agents and under its corporate seal as to the purposes with which these bonds were issued. Whether such representations were made in- advertently or with the intention by the use of inaccurate titles of ordi- nances, to avert inquiry as to the real object in issuing the bonds, and thereby facilitate their negotiation in the money markets of the coun- try, in either case, the city, both upon principle and authority, is cut off from any such defense. What this court declared in Zabriskie v. Cleveland, C. & C. R. Co., 23 How. (U. S.) 381, as to private corpora- tions, may be reiterated as peculiar- ly applicable to this case; 'A corpo- ration, quite as much as an indi- vidual, is held to a careful adher- ence to truth in their dealings with mankind and cannot by their repre- sentations or silence involve others in onerous engagements and then de- feat the calculations and claims their own conduct had superin- duced.' " Portland Sav. Bank v. City of Evansville, 25 Fed. 389; Pickens Tp. v. Post (C. C. A.) 99 Fed. 659; Francis v. Howard Coun- ty, 50 Fed. 44; National Life Ins. Co. v. Board of Education of Huron (C. C. A.) 62 Fed. 778. The city of Huron issued bonds, the proceeds of which were used by it for the pur- pose of conducting a campaign in the state legislature for the location of the state capital of South Dakota at that city. This unlawful use was urged as an objection to the validity of the bonds and on this point the court say: "It is no defense to these bonds, against innocent purchasers for value, before maturity, that the defendant loaned $59,500 of the pro- ceeds of the sale of them to the city of Huron for city warrants that were never paid, and that cannot be legal- ly enforced, so that it has actually realized but $500 from the sale of its bonds. That a municipal corpo- ration has given away or squandered the proceeds of negotiable securities which it placed upon the market cannot affect the rights of bona fide purchasers, who had no knowledge 472 POWERS. 206 the statutory authority exists and bonds are issued, the maker will be estopped from denying their execution when it has re- ceived and retained the benefit of the moneys evidenced by the of, nor part in, the gift or waste. They are in no way responsible for the wise and economical use by the corporation of the funds it borrows. Anderson County Com'rs v. Beal, 113 U. S. 227; City of Cairo v. Zane, 149 U. S. 122; Maxcy v. Williamson County Ct, 72 111. 207. "Nor is it any defense to such bonds, as against bona fide purchas- ers, that the citizens and officers of a municipal corporation, with the intention to use the proceeds of the bonds for an unlawful purpose, took the necessary steps to issue them for a lawful purpose, certified on the face of the bonds that they were is- sued for such lawful purpose, and then appropriated the proceeds to the unlawful purpose. Corporations are as strongly bound to an adher- ence to truth in their dealings with mankind as are individuals, and they cannot, by their representa- tions or silence, induce others to part with their money or property, and then repudiate the obligations for which the money was expended, and which their statements repre- sented to be valid. The defendant, in its resolutions and records, in all the resolutions and records of the city council of Huron in the call for and vote at the election which authorized the issue of the bonds, and in the bonds themselves, de- clared that they were issued for a lawful purpose, viz., 'to raise funds for the purchase of a school site, and for the erection of a school building thereon.' The present hold- ers purchased them and paid for them with no notice or knowledge that they were issued for any other purpose, and in the full belief that these declarations were true. It is no defense for this corporation, as against these bona fide purchasers, that during all this time it intended to use, and has since used, the money it raised from these bonds for the unlawful purpose of conduct- ing a campaign for the state capital. It is no defense that it knew at the time it was taking these proceed- ings and making these declarations that they were false, and that dur- ing all this time it intended First, to deprive itself of the school site and building; and second, to deprive the purchasers of the bonds of the moneys they paid for them on the faith of its representations, and that it has accomplished the former pur- pose, and now seeks, with the aid of the courts, to accomplish the lat- ter. Such a plea cannot be enter- tained in a court of justice. The corporation is estopped to deny that these bonds were issued to raise money for a school site and school building." West Plains Tp. v. Sage (C. C. A.) 69 Fed. 943; Lyon County v. Keene Five-Cent Sav. Bank (C. C. A.) 100 Fed. 337, affirming 97 Fed. 159; D'Esterre v. City of New York, 104 Fed. 605; Wood v. City of Lou- isiana, 5 Dill. 122, Fed. Gas. No. 17,- 948: Borough of Freeport v. Marks, 59 Pa. 253; Bond Debt Cases, 12 S. C. 200; Jones v. City of Camden, 44 S. C. 319; Nolan County v. State, 83 Tex. 182, 17 S. W. 823; Town of Clifton Forge v. Alleghany Bank, 92 Va. 283, 23 S. E. 284. See, also, cases cited 210. 207 ISSUANCE OF SECURITIES. 473 bonds. 504 These principles of estoppel apply, however, only to innocent purchasers, or those not having knowledge of irregu- larities or defects in issue, execution and delivery, a rule so well established that the citation of many authorities is unnecessary. 505 207. The same subject. For the protection of the bona fide holder of negotiable bonds we have then the well-established principle applying to negotia- ble paper, that a bona fide holder for value before maturity and without notice takes an absolute title and is not affected by equi- ties which are good as between the original parties, the courts holding that bonds issued by public corporations containing ne- gotiable words partake of the character and are negotiable paper according to the strict meaning of the word as used in the law merchant. 506 The principle or doctrine of equitable estoppel also BO* Mobile v. Sands, 127 Ala. 493, 29 So. 26; Brown v. Milliken, 42 Kan. 769; Oswego Tp. v. Anderson, 44 Kan. 214, 24 Pac. 486. See, how- ever, Municipal Security Co. v. Ba- ker County, 33 Or. 338, 54 Pac. 174, as holding to the contrary. Nolan v. State, 83 Tex. 182, 17 S. W. 823. 505 Cromwell v. Sac County, 96 -U. S. 59; Scotland County v. Hill, 132 U. S. 107; Brooklyn Trust Co. v. Town of Hebron, 51 Conn. 22; Town of Essex v. Day, 52 Conn. 483; Madi- son County Sup'rs v. Brown, 67 Miss. 684; Hopple v. Hippie, 33 Ohio St. 116. sea in speaking of the commer- cial character of municipal bonds, Mr. Justice Grier said in Mercer County v. Hackett, 68 U. S. (1 Wall.) 83: "This species of bonds is a modern invention intended to pass by manual delivery and to have the qualities of negotiable paper and their values depends mainly upon this character. Being issued by states and corporations, they are necessarily under seal. But there is nothing immoral or contrary to good policy in making them negotia- ble, if the necessities of commerce require that they should be so. A mere technical dogma of the courts or the common law cannot prohibit the commercial world from invent- ing or using any species of security not known in the last century. Usage of trade and commerce are acknowledged by the courts as part of the common law although they may have been unknown to Bracton or Blackstone. And this malleabili- ty to suit the necessities and usages of the mercantile and commercial world is one of the most valuable characteristics of the common law. When a corporation covenants to pay to bearer and gives a bond with negotiable qualities and by this rea- son obtains funds for the accom- plishment of the useful enterprises of the day, it cannot be allowed to evade the payment by parading some obsolete judicial decision that a bond for some technical reason can- not be made payable to bearer. That 474 POWERS. 207 is applied for the protection of the bona fide holder of such bonds, namely, that where public corporations with full knowledge of defects in the manner of issue after having received and retained the benefits of the proceeds of their bonds 507 recognize directly or indirectly the validity of such bonds by the levying of a tax for their payment or the payment of interest, 508 the voting or retention of stock purchased with the proceeds, 509 their recogni- these securities are treated as nego- tiable by the commercial usages of the whole civilized world and have received the sanction of judicial recognition, not only in this court but of nearly every state in the Union, is well known and admitted. * * * Although we doubt not the facts stated as to the atrocious frauds which have been practiced in some counties, in issuing and ob- taining these bonds, we cannot agree to overrule our own decisions and change the law to suit hard cases. The epidemic insanity of the people, the folly of county officers, the knavery of railroad 'speculators,' are pleas which might have just weight in an application to restrain the issue or negotiation of these bonds, but cannot prevail to author- ize their repudiation, after they have been negotiated and have come into the possession of bona fide holders." See, also, authorities cited under 205. SOT Kiowa County Com'rs v. How- ard (C. C. A.) 83 Fed. 296; Rondot v. Rogers Tp. (C. C. A.) 99 Fed. 202, citing Marshall County Sup'rs v. Schenck, 72 U. S. (5 Wall.) 772; State v. Van Home, 7 Ohio St. 327; State v. Trustees of Union Tp., 8 Ohio St. 394; State v. Trustees of Goshen Tp., 14 Ohio St. 569; New York Life Ins. Co. v. Cuyahoga County Com'rs (C. C. A.) 106 Fed. 123. But see Travelers' Ins. Co. v. Johnson City (C. C. A.) 99 Fed. 663, 49 L. R. A. 123, where it is held in the absence of authority to issue bonds and where the benefits claimed to have been received and retained are of a doubtful character that such bonds are void even in the hands of bona fide holders. BOS Nugent v. Putnam County Sup'rs, 86 U. S. (19 Wall.) 241; County of Clay v. Society for Sav- ings, 104 U. S. 579; City of Parkers- burg v. Brown, 106 U. S. 487; Ander- son County Com'rs v. Beal, 113 U. S. 227; Hill v. City of Memphis, 134 U. S. 198; Citizens' Sav. & Loan Ass'n v. Perry County, 156 U. S. 692; New Haven, M. & W. R. Co. v. Chatham, 42 Conn. 465; Town of Keithsburg v. Frick, 34 111. 405; People v. Cline, 63 111. 394; Lippin- cott v. Town of Pana, 92 111. 24; Leavenworth, L. & G. R. Co. v. Douglas County Com'rs, 18 Kan. 169; Morris County Com'rs v. Hinch- man, 31 Kan. 729; David v. Parish of East Baton Rouge, 27 La. Ann. 230; Town of Mentz v. Cook, 108 N. Y. 504; Germania Sav. Bank v. Town of Darlington, 50 S. C. 337; Nelson v. Haywood County, 87 Tenn. 781. See, also, 200, note 479, supra, and 208, post. But see to the contrary, Citizens' Sav. & Loan Ass'n v. City of Topeka, 87 U. S. (20 Wall.) 665; Daviess County Ct. v. Howard, 76 Ky. (13 Bush) 101; and First Nat. Bank of Decorah v. District Tp. of Doon, 86 Iowa, 330, 53 N. W. 301. SOD Pendleton County v. Amy, 80 207 ISSUANCE OF SECURITIES. tion by public officials or the corporation as valid, 510 the reten- tion of the consideration, 511 or the issue or renewal of refunding bonds to replace them, 512 will not be heard to -raise the question of such irregularities as a defense in an action against them. U. S. (13 Wall.) 297; Nugent v. Put- nam County Sup'rs, 86 U. S. (19 Wall.) 241; Luling v. City of Ra- cine, 1 Biss. 314, Fed. Gas. No. 8,603. But see Marsh v. Fulton County, 77 U. S. (10 Wall.) 676. BIO Marshall County Sup'rs v. Schenck, 72 U. S. (5 Wall.) 781; Jasper County v. Ballou, 103 U. S. 745; Atchison Board of Education v. De Kay, 148 U. S. 591; Ranger v. City of New Orleans, 2 Woods, 128, Fed. Gas. No. 11,564; Meyer v. City of Muscatine, 68 U. S. (1 Wall.) 384; Portsmouth Sav. Bank v. City of Springfield, 4 Fed. 276; City of Columbus v. Dennison (C. C. A.) 69 Fed. 58; Cronin v. Patrick County, 89 Fed. 79; Washington County v. Williams, 111 Fed. 801; Society for Savings v. City of New London, 29 Conn. 175; Town of Essex v. Day, 52 Conn. 483; Leavenworth, L. & G. R. Co. v. Douglas County Com'rs, 18 Kan. 170; State v. Scott County Com'rs, 58 Kan. 491, 49 Pac. 663; Morris Coun- ty Com'rs v. Hinchman, 31 Kan. 729; Town of Eminence v. Grasser's Ex'r, 81 Ky. 52; Carver v. Board of Liqui- dation, 35 La. Ann. 261; Washington County v. David, 2 Neb. Unoff. 649, 89 N. W. 737; State v. Van Home, 7 Ohio St. 330; State v. Trustees of Goshen Tp., 14 Ohio St. 569; State v. Mitchell, 31 Ohio St. 592; Presidio County v. City Nat. Bank (Tex. Civ. App.) 44 S. W. 1069; Town of Ben- nington v. Park, 50 Vt. 178. But see to the contrary, Weismer v. Village of Douglas, 64 N. Y. 91; and Os- wego County Sav. Bank v. Town of Genoa, 66 App. Div. 330, 72 N. Y. Supp. 786. 511 Pendleton County v. Amy, 80 U. S. (13 Wall.) 297; Anderson County Com'rs v. Beal, 113 U. S. 227; Whiting v. Town of Potter, 2 Fed. 517; Third Nat. Bank of Syra- cuse v. Town of Seneca Falls, 15 Fed. 783. Such bonds have been held void in some cases but the cor- poration receiving their proceeds will be required to do equity to the other party. See Brown v. City of Atchison, 39 Kan. 37, and Clark v. Saline County Com'rs, 9 Neb. 516. The same doctrine also applies to private corporations or individuals. See, Bradley v. Ballard, 55 111. 414; State Board of Agriculture v. Citi- zens' St. R. Co., 47 Ind. 407; Mor- ville v. American Tract Soc., 123 Mass. 129; Parish v. Wheeler, 22 N. Y. 494, and Northwestern Union Packet Co. v. Shaw, 37 Wis. 655. But the supreme court of the United States has held in a recent case that the rule will not apply where there is an absolute want of power and a violation of the constitution in is- suing the bonds. See Hedges v. Dixon County, 150 U. S. 182; Zabris- kie v. Cleveland, C. & C. R. Co., 23 How. (U. S.) 381; Bissell v. City of Jeffersonville, 24 How. (U. S.) 287; Town of Coloma v. Eaves, 92 U. S. 484; Hackett v. City of Ottawa, 99 U. S. 86; Chaffee County v. Potter, 142 U. S. 355. 512 Graves v. Saline County, 161 U. S. 359; Ballou v. Jasper County, 3 Fed. 620; City of Cadillac v. Woon- socket Inst. for Savings (C. C. A.) 476 POWERS. 208 208. Estoppel through the payment of interest. As a particular form of the application of the doctrine of equi- table estoppel against a public corporation to deny the validity of its bonds in the hands of bona fide holders, we have many authorities holding that where the corporation pays the interest upon its bonds for a series of years, or the principal of some of them, it will thereafter be estopped to deny their validity, 513 al- though decisions of the courts are not uniform in this respect. 514 68 Fed. 935; Ashley v. Presque Isle County Sup'rs, 60 Fed. 55; Shaw v. Independent School Dist. of River- side, 62 Fed. 911; Brown v. Ingalls Tp., 81 Fed. 485; Barber County Com'rs v. Society for Savings (C. C. A.) 101 Fed. 767; Union Bank of Richmond v. Oxford Com'rs, 90 Fed. 7; Johnson v. Stark County, 24 111. 75; City of Coolidge v. General Hos- pital Soc., 9 Kan. App. 891, 58 Pac. 562; Town of Lexington v. Union Nat. Bank, 75 Miss. 1, 22 So. 291; State v. Wilkinson, 20 Neb. 610, 31 N. W. 376; State v. Dakota County, 22 Neb. 448, 35 N. W. 225; Hills v. Peekskill Sav. Bank, 101 N. Y. 490. The same rule also applies to the re- issue of bonds which, it has been held by the courts, is a waiver of defects in the old bonds. See Coun- ty of Moultrie v. Rockingham Ten- Cent Sav. Bank, 92 U. S. 631; Marcy v. Oswego Tp., 92 U. S. 637; Doug- las County Com'rs v. Bolles, 94 U. S. 104; Warren County v. Marcy, 97 U. S. 96; Jasper County v. Ballou, 103 U. S. 745; Town of Aroma v. Au- ditor of State, 15 Fed. 843; Cowdrey v. Town of Caneadea, 16 Fed. 532; Rich v. Town of Mentz, 18 Fed. 52; Chandler v. Town of Attica, 18 Fed. 299; Second Ward Sav. Bank v. City of Huron, 80 Fed. 660, affirmed in 86 Fed. 272, 49 L. R. A. 534, and Town of Solon v. Williamsburgh Sav. Bank, 114 N. Y. 122. sis Marshall County Sup'rs v. Schenck, 72 U. S. (5 Wall.) 772; Kirkbride v. Lafayette County, 108 U. S. 208; Atchison Board of Educa- tion v. De Kay, 148 U. S. 591; Lu- ling v. City of Racine, 1 Biss. 314, Fed. Gas. No. 8,603; Second Ward Sav. Bank v. City of Huron, 80 Fed. 660; Dudley v. Lake County Com'rs (C. C. A.) 80 Fed. 672; Heed v. Cow- ley County Com'rs, 82 Fed. 716; Washington County v. Williams, 111 Fed. 801; Town of Keithsburg v. Frick, 34 111. 405; People v. Cline, 63 111. 394; Leavenworth, L. & G. R. Co. v. Douglas County Com'rs, 18 Kan. 170; Brown v. Milliken, 42 Kan. 769; Town of Eminence v. Grasser's Ex'r, 81 Ky. 52; Town of Lexington v. Union Nat. Bank, 75 Miss. 1, 22 So. 291; Calhoun v. Mil- lard, 121 N. Y. 69, 8 L. R. A. 248; Town of Cherry Creek v. Becker, 123 N. Y. 161; State v. Van Home, 7 Ohio St. 331; Trustees of Goshen Tp. v. Springfield, Mt. V. & P. R. Co., 12 Ohio St. 624; Brown v. Bon Homme County, 1 S. D. 216, 46 N. W. 173; Nelson v. Haywood Coun- ty, 87 Tenn. 781, 4 L. R. A. 648; Nolan County v. State, 83 Tex. 182. si* Citizens' Sav. & Loan Ass'n v. City of Topeka, 87 U. S. (20 Wall.) 209 ISSUANCE OF SECURITIES. 477 209. The doctrine of recitals. The principle of estoppel also applies to recitals in honds, which are statements of the constitutional or legislative author- ity for their issue and the performance or compliance with all of the conditions required by such authority necessary to be done or performed as precedent to a valid issue. 518 The doctrine as applied to recitals is substantially this, that where legislative authority has been given a public corporation or its officials the power to issue bonds upon the performance of some precedent condition, 616 such as a particular manner of holding an election 665;' Ashuelot Nat. Bank v. School Dist. No. 7, 41 Fed. 514; Brown v. Ingalls Tp., 81 Fed. 485; Oxford Com'rs v. Union Bank of Richmond (C. C. A.) 96 Fed. 293; Clarke v. Town of Northampton, 105 Fed. 312, 58 L. R. A. 900; Sherrard v. Lafay- ette County, 3 Dill. 236, Fed. Cas. No. 12,771; Stebbins v. Perry Coun- ty, 167 111. 567; Bogart v. La'motte Tp., 79 Mich. 294; Buncombe County Com'rs v. Payne, 123 N. C. 432; Glenn v. Wray, 126 N. C. 730, citing Williams v. Clouse, 91 N. C. 327; Tyler v. Capehart, 125 N. C. 64; Claybrook v. Rockingham County Com'rs, 117 N. C. 456; Union Bank of Richmond v. Oxford Com'rs, 119 N. C. 214, 34 L. R. A. 487, and Pied- mont Wagon Co. v. Byrd, 119 N. C. 460. Noel Young Bond & Stock Co. v. Mitchell County, 21 Tex. Civ. App. 638. sis Hainer, Mun. Secur. 372, par. 3; and cases cited. sis County of Moultrie v. Rock- ingham Ten-Cent Sav. Bank, 92 U. S. 631; County of Henry v. Nicolay, 95 U. S. 619; Pompton Tp. v. Cooper Union, 101 U. S. 196; Clay County v. Society for Savings, 104 U. S. 579; Anderson County Com'rs v. Beal, 113 U. S. 227; Marshall v. Town of Elgin, 3 McCrary, 35, 8 Fed. 783. See, however, the case of Mercer County v. Provident Life & Trust Co. (C. C. A.) 72 Fed. 623; Moulton v. City of Evansville, 25 Fed. 382; Kimball v. Town of Lakeland, 41 Fed. 289, 10 L. R. A. 500; Kingman County Com'rs v. Cornell University (C. C. A.) 57 Fed. 149; National Life Ins. Co. v. Board of Education of Huron, 62 Fed. 778. The court in its opinion by Judge Sanborn say: "Corporations are as strongly bound to an adherence to truth in their dealings with mankind as are individuals and they cannot by their representations or silence induce others to part with their money or property and then repudiate the ob- ligations for which the money was expended and which their state- ments represented to be valid. * * * It is a general and salu- tary principle of the law that one who, by his acts or representations, or by his silence when he ought to speak out, intentionally or through culpable negligence, induces another to believe certain facts to exist, and the latter rightfully acts on such belief, so that he will be prejudiced if the former is permitted to deny their existence, is conclusively es- 478 POWERS. 209 or the existence of some fact, 517 and where it may be gathered from the legislative enactment that certain officials of the cor- poration are invested with the power to decide whether the con- ditions precedent have been complied with or such facts ex- isted, 518 their recital or statement in the bonds issued by them topped to interpose such denial. No reason occurs to us why a munici- pal t-'ly that has induced others to act to their prejudice by its certifi- cate that it has performed an act that the laws intrusted to it to per- form should be excepted from this rule, and permitted to deny its cer- tificate, to the prejudice of those it has deceived, simply because the performance of the act was required by the constitution. This view is not novel." 017 Wilson v. Salamanca Tp., 99 U. S. 499; Town of Scipio v. Wright, 101 U. S. 665; Bernards Tp. v. Mor- rison, 133 U. S. 523; City of South St. Paul v. Lamprecht Bros. Co. (C. C. A.) 88 Fed. 449; Speer v. Kear- ney County Com'rs, 88 Fed. 749; Mil- ler v. Ferris Irr. Dist, 99 Fed. 143; Stanley County Com'rs v. Coler (C. C. A.) 113 Fed. 705, reversing on re- hearing the judgment in (C. C. A.) 96 Fed. 284, and affirming 89 Fed. 257; Coler v. Santa Fe County Com'rs, 6 N. M. 88, 27 Pac. 619. BIS Humboldt Tp. v. Long, 92 U. S. 642; Warren County v. Marcy, 97 U. S. 96. "We have substantially held thai if a municipal body has lawful power to issue bonds or other nego- tiable securities, dependent only upon the adoption of certain pre- liminary proceedings, such as a pop- ular election of the constituent body, the holder in good faith has a right to assume that such preliminary pro- ceedings have taken place, if the fact be certified on the face of the bonds themselves, by the authori- ties whose primary duty it is to as- certain it." Citing Lynde v. Win- nebago County, 83 U. S. (16 Wall.) 6; Town of Coloma v. Eaves, 92 U. S. 484; Douglas County Com'rs v. Bolles, 94 U. S. 104, and Johnson County Com'rs v. January, 94 U. S. 202. Livingston County v. First Nat. Bank of Portsmouth, 128 U. S. 102, National Bank of Commerce v. Town of Granada (C.C. A.) 54 Fed. 100. Re- citals in a bond by officers in regard to matters concerning which they have no official duty do not estop the mu- nicipality from disputing the truth of such recitals. Mercer County v. Provident Life & Trust Co. (C. C. A.) 72 Fed. 623; Heed v. Cowley County Com'rs, 82 Fed. 716; Chilton v. Town of Gratton, 82 Fed. 873, affirmed (C. C. A.) 97 Fed. 145; Seward County Com'rs v. Aetna Life Ins. Co., 90 Fed. 222; Geer v. School Dist. No. 11 (C. C. A.) 97 Fed. 732; Brattleboro Sav. Bank v. Trustees of Hardy Tp., 98 Fed. 524; Rondot v. Rogers Tp. (C. C. A.) 99 Fed. 202, citing among other cases, Marshall County Sup'rs v. Schenck, 72 U. S. (5 Wall.) 772; State v. Van Home, 7 Ohio St. 327; State v. Trustees of Union Tp., 8 Ohio St. 394; and State v. Trustees of Goshen Tp., 14 Ohio St. 569. Hughes County v. Livingston, 104 Fed. 306; Clapp v. Otoe County, 104 Fed. 473; Trustees of Hardy Tp. v. Brattleboro Sav. Bank (C. C. A.) 106 209 ISSUANCE OF SECURITIES. 479 that they have been so complied with or that certain conditions exist, is conclusive of the fact and binding upon the corpora- tion; 519 for, as said by the supreme court of the United States, Fed. 986, affirming 98 Fed. 524; Wilkes County Com'rs v. Coler (C. C. A.) 113 Fed. 725. Fulton v. Town of Riverton, 42 Minn. 395. "The second assignment raises the question as to whether these bonds and coupons are valid in the hands of innocent and bona fide purchasers for value, as against the defendant. * * * The claim is that in respect to the petition, the statute was not complied with; that the one actually presented, and upon which the town authorities proceed- ed, did not bear the requisite num- ber of signatures; and that this ir- regularity or defect vitiates the bonds and coupons, wherever they may be found. It is obvious that by the legislative act referred to the township supervisors were created a tribunal to examine and determine whether or not the requisite two- thirds in number of the legal voters had affixed their signatures to the petition. It was their duty to ascer- tain and decide as to this condition precedent to a proper exercise of their authority to issue the bonds. * * * The board of supervisors did decide this question and there- upon issued the bonds. In each was a statement that it was issued in pursuance of the special act be- fore cited, coupled with a recital and certificate that 'all acts, conditions and things required to be done pre- cedent to and in the issuing of said bonds have been properly done, hap- pened and performed in regular and due form as required by law.' This recital and certificate was a declara- tion of the decision made by a body or tribunal invested with power to pass upon the existence of the facts therein stated, and was conclusive in a suit brought against the town- ship by a bona fide holder of the bonds." Deming v. Inhabitants of Houlton, 64 Me. 254; State v. Board of Edu- ' cation of Perrysburg, 27 Ohio St. 96. In National Life Ins. Co. v. Board of Education of Huron, 62 Fed. 778, the court very tersely and clearly states the rule obtaining in the Federal courts on the doctrine of recitals. They say: "Where the municipal body has lawful authority to issue bonds or negotiable securi- ties, dependent only upon the adop- tion of certain preliminary proceed- ings, and the adoption of those pre- liminary proceedings is certified on the face of the bonds by the body to which the law intrusts the power, and upon which it imposes the duty, to ascertain, determine, and certify this fact before or at the time of issuing the bonds, such a certificate will estop the municipality, as against a bona fide purchaser of the bonds, from proving its falsity, to defeat them." See cases cited. sis Knox Coonty Com'rs v. Aspin- wall, 21 How . S.) 539; Lynde v. Winnebago County, 83 U. S. (16 Wall.) 6; Town of Venice v. Mur- dock, 92 U. S. 494; Marcy v. Oswego Tp., 92 U. S. 637; City of Menasha v. Hazard, 102 U. S. 81; Harter Tp. v. Kernochan, 103 U. S. 562. The court after speaking of the bond re- citals and the conditions precedent say: "In view of these facts, it is difficult to perceive upon what just 480 POWERS. 209 ground the township can escape lia- bility. In the first place, the bonds were issued in pursuance of a pop- ular vote in favor of a donation to be met by a special tax, and also of a vote, at a subsequent special elec- tion in favor of an issue of bonds in payment of that donation. In the next place and as conclusive against the township, the recitals in the bonds import a compliance with all of the provisions of the acts of as- sembly under which they were is- sued. It is true that the bonds do not, in express words, refer to the special election of May 20, 1870; but since the amendatory act authorized the township, upon a vote at a reg- ular or special town meeting or elec- tion, to issue bonds in payment of the donation previously voted, the recital in them fairly imports that such an election was, in fact, held before they were issued." American Life Ins. Co. v. Town of Bruce, 105 U. S. 328; Town of Pana v. Bowler, 107 U. S. 529; Inhabitants of New Providence v. Halsey, 117 U. S. 336; Chaffee County Com'rs v. Potter, 142 U. S. 355. As against a bona fide holder, the maker of bonds which in themselves afford no data by which the total of the amount could be determined and which contain recitals that all the requirements of the act authorizing their issue have been fully complied with and that the whole amount of the issue did not exceed the limit of the indebt- edness as prescribed by the consti- tution, is estopped by the recitals from questioning their validity on the ground that the percentage of indebtedness fixed by the constitu- tion was exceeded, distinguishing Dixon County v. Field, 111 U. S. 83. The court in part say: "We held in that case (Lake County v. Graham, 130 U. S. 674), that the county was not estopped from pleading the con- stitutional limitation, because there was no recital in the bonds in re- gard to it and because, also, the bonds showing upon their face that they were issued to the amount of $500,000. The purchaser having that data before him was bound to ascertain from the records the total assessed valuation of the taxable property of the county, and 'deter- mine for himself, by a simple arith- metical calculation, whether the is- sue was in harmony with the con- stitution; and that the bonds, hav- ? been issued in violation of that provision of the constitution, were not valid obligations of the county. Our decision was based largely upon the ruling of this court in Dixon County v. Field, 111 U. S. 83. To the views expressed in that case we still adhere; and the only question for us now to consider, therefore, is: Do the additional recitals in these bonds, above set out, and the absence from their face of anything show- ing the total number issued of each series, and the total amount in all, estop the county from pleading the constitutional limitation? In our opinion these two features are of vital importance in distinguishing this case from Lake County v. Gra- ham and Dixon County v. Field, and are sufficient to operate as an estop- pel against the county. Of course, the purchaser of bonds in open mar- ket was bound to take notice of the constitutional limitation on the county with respect to indebtedness which it might incur. But when, upon the face of the bonds there was an express recital that that limita- tion had not been passed, and the bonds themselves did not show that it had, he was bound to look no 209 ISSUANCE OF SECURITIES. 481 further. An examination of any par- ticular bond would not disclose, as it would in the Lake County Case, and in Dixon County v. Field, that, as a matter of fact, the constitutional limitation had been exceeded, in the issue of the series of bonds. The purchaser might even know, indeed it may be admitted that he would be required to know the assessed val- uation of the taxable property of the county, and yet he could not ascer- tain by reference to one of the bonds and the assessment roll, whether the county had exceeded its power, under the constitution, in the prem- ises. True, if a purchaser had seen the whole issue of each series of bonds and then compared it with the assessment roll, he might have been able to discover whether the issue exceeded the amount of indebtedness limited by the constitution. But that is not the test to apply to a transaction of this nature. It is not supposed that any one person would purchase all of the bonds at one time, as that is not the usual course of business of this kind. The test is What does each individual bond disclose? If the face of one of the bonds had disclosed that, as a mat- ter of fact, the recital in it, with respect to the constitutional limita- tion, was false, of course the county would not be bound by that recital, and would not be estopped from pleading the invalidity of the bonds in this particular. Such was the case in Lake County v. Graham and Dixon County v. Field. But that is not this case. Here, by virtue of the statute under which the bonds were issued the County Commission- ers were to determine the amount to be issued which was not to exceed the total amount of the indebted- ness as the date of the first publi- Abb. Corp. 31. cation of the notice requesting the holders of county warrants to ex- change their warrants for bonds, at par. The statute, in terms, gave to the commissioners the determination of a fact, that is, whether the issue of bonds was in accordance with the constitution of the state and the statute under which they were is- sued, and required them to spread a certificate of that determination upon the records of the county. The recital in the bond to the effect that such determination has been made, and that the constitutional limita- tion had not been exceeded in the issue of the bonds, taken in connec- tion with the fact that the bonds themselves did not show such recital to be untrue, under the law, estops the county from saying that it is untrue." Town of Andes v. Ely, 158 U. S. 312; City of Evansviile v. Dennett, 161 U. S. 434; Gunnison County Com'rs v. Rollins, 173 U. S. 255, af- firming 80 Fed. 692. Where the bonds do not on their face show th amount of the issue, the recital that the total issue does not exceed the constitutional limitation of indebted- ness estops the county from disput- ing its truth as against an innocent purchaser. Huidekoper v. Buchanan County, 3 Dill. 175, Fed. Cas. No. 6,847; Westerman v. Cape Girardeau Coun- ty, 5 Dill. 112, Fed. Cas. No. 17,432; Washington Tp. v. Coler (C. C. A.) 51 Fed. 362 (as to the insufficiency of a recital); Deland v. Platte Coun- ty, 54 Fed. 823; City of Columbus v. Dennison (C. C. A.) 69 Fed. 58; Dudley v. Lake County Com'rs (C. C. A.) 80 Fed. 672; Chilton v. Town of Gratton, 82 Fed. 873, affirmed 97 Fed. 145. Bonds in excess of an authorized issue will be held valid 482 TOWERS. 209 "The recital is itself a decision of the fact by the appointed tri- bunal. ' ' 52 Such a recital or ' ' decision, " as it is termed, is conclu- sive upon the corporation as to bonds in the hands of a bona fide holder who, it is held, as to 1 such matters, is not bound to look for further evidence of a compliance with the conditions of is- in the hands of bona fide holders where the limit of the issue can only be ascertained from records or data which are peculiarly within the con- trol and knowledge of the public officials issuing them or where they have better access, to the necessary information, than strangers. Brown v. Ingalls Tp., 86 Fed. 261; Township of 96 v. Polsom, 87 Fed. 304; Lake County Com'rs v. Sutliff (C. C. A.) 97 Fed. 270, 49 L. R. A. 127; Wesson v. Town of Mt. Vernon (C. C. A.) 98 Fed. 804, citing, among other cases, Town of New Orleans v. Platt, 99 U. S. 676; Town of Oregon v. Jennings, 119 U. S. 74; Sherman County v. Simons, 109 U. S. 735, fol- lowing Zabriskie v. Cleveland, C. & C. R. Co., 23 How. (U. S.) 381; and Risley Y. Village of Howell (C. C. A.) 64 Fed. 453. Pickens Tp. v. Post (C. C. A.) 99 Fed. 659; Cowley County Com'rs v. Heed (C. C. A.) 101 Fed. 768; Inde- pendent School Dist. of Sioux City v. Rew, 111 Fed. 1, 55 L. R. A. 364. The proviso is made in this case that the recitals will not operate as an estoppel if the act under which the bonds are issued prescribes some public record as the test of the ex- istence of some of the acts or con- ditions contained in the bonds. State v. City of Montgomery, 74 Ala. 226; Chicago, K. & W. R. Co. v. Chase County Com'rs, 49 Kan. 899, 30 Pac. 456, following Hutchin- Bon & S. R. Co. r. Kingman County Com'rs, 48 Kan. 70, 28 Pac. 1078, 15 L. R. A. 401 ; State v. Wichita Coun- ty Com'rs, 62 Kan. 494, 64 Pac. 45; City of South Hutchinson v. Bar- num, 63 Kan. 872, 66 Pac. 1035; Gibbs v. School Dist. No. 10, 88 Mich. 334, 50 N. W. 294; Spitzer v. Village of Blanchard, 82 Mich. 234; St. Paul Gaslight Co. v. Village of Sandstone, 73 Minn. 225; Lane v. Schomp, 20 N. J. Eq. (5 C. E. Green) 82; Belo v. Forsythe County Com'rs, 76 N. C. 489; Coler v. Dwight School Tp., 3 N. D. 249, 55 N. W. 587, 28 L. R. A. 649; State v. Board of Edu- cation of Perrysburg, 27 Ohio St. 96; Kerr. v. City of Corry, 105 Pa. 282; Coler v. Rhoda School Tp., 6 S. D. 640, 63 N. W. 158; Wilson v. Board of Education of Huron, 12 S. D. 535, 81 N. W. 952; City of San Antonio v. Lane, 32 Tex. 405; Cumberland County Sup'rs v. Randolph, 89 Va. 614, 16 S. E. 722. 620 Town of Coloma v. Eaves, 92 U. S. 484. One of the leading cases on this point. The court say in part: "Apart from and beyond the reasonable pre- sumption that the officers of the law, the township officers, dis- charged their duty, the matter has passed into judgment. The persons appointed to decide whether the necessary prerequisites to their is- sue had been completed have decid- ed and certified their decision. They have declared the contingency to have happened on the occurrence of which the authority to issue the bonds was complete. Their recitals are such a decision; and beyond 209 ISSUANCE OF SECURITIES. 483 sue. 521 The recitals or statements work no estoppel, however, except when made by those officials or that tribunal either espe- cially designated or having the general power to perform such acts. If not made by those having authority to decide and as- sert the facts which constitute the conditions precedent to a legal those a bona fide purchaser is not bound to look for evidence of the existence of things in pais. He is bound to know the law conferring upon the municipality power to give the bonds on the happening of a contingency; but whether that has happened or not is a question of fact, the decision of which is by the law confided to others to those most competent to decide it and which the purchaser is, in general, in no condition to decide for him- self." 521 Pendleton County v. Amy, 80 U. S. (13 Wall.) 297; Marcy v. Os- wego Tp., 92 U. S. 637; Leavenworth County v. Barnes, 94 U. S. 70; Doug- las County Com'rs v. Bolles, 94 U. S. 104; Johnson County Com'rs v. Jan- uary, 94 U. S. 202. "The bonds re- cite that they were issued in con- formity to law and in pursuance of the election held on the 6th of April, 1869. It is true they refer to the wrong statute but falsa de- monstratio non nocet. The bad here does not hurt the good. The act of the commissioners was the act of the county, and the county is conclusively bound by what they have done. As between the county and a bona fide holder no question involving the infirmity of the secur- ities can be raised. The principle of estoppel applies and it precludes the obligor from interposing such a defense." Henry County v. Nicolay, 95 U. 8. 619; Moultrie County v. Fairfield, 105 U. S. 370; Sherman County v. Simons, 109 U. S. 735; Wood v. Al- legheny County, 3 Wall. Jr. 267, Fed. Cas. No. 17,939; Miller v. Town of Berlin, 13 Blatchf. 245, Fed. Cas. No. 9,562; Nicolay v. St. Clair County, 3 Dill. 163. Fed. Cas. No. 10,257; Pol- lard v. City of Pleasant Hill, 3 Dill. 195, Fed. Cas. No. 11,253; Mygatt v. City of Green Bay, 1 Biss. 292, Fed. Cas. No. 9,998; Davis v. City of Ken- dallville, 5 Biss. 280, Fed. Cas. No. 3,b38; Lewis v. Comanche County, 35 Fed. 343; Mathis v. Runnels County (C. C. A.) 66 Fed. 494; Rathbone v. Kiowa County Com'rs (C. C. A.) 83 Fed. 125; City of Huron v. Second Ward Sav. Bank, 86 Fed. 272, 49 L. R. A. 534; Waite v. City of Santa Cruz, 89 Fed. 619; Haskell County Com'rs v. National Life Ins. Co. (C. C. A.) 90 Fed. 228; Independent School Dist. of Sioux City v. Rew, 111 Fed. 1, 55 L. R. A. 364; City of Kearney v. Woodruff (C. C. A.) 115 Fed. 90; E. M. Derby & Co. v. City of Modesto, 104 Cal. 515; Danielly v. Cabaniss, 52 Ga. 211; State v. Saline County Ct, 48 Mo. 390: Clay- brook v. Rockingham County Com'rs, 117 N. C. 456; Flagg v. School Dist. No. 70, 4 N. D. 30, 58 N. W. 499, 25 L. R. A. 363; State v. Fayette Coun- ty Com'rs, 37 Ohio St. 526; Reis v. State, 133 Cal. 593, 65 Pac. 1102, re- versing 59 Pac. 298; Nelson v. Hay- wood County, 87 Tenn. 781, 4 L. R. A. 648; Mitchell County v. City Nat. Bank, 15 Tex. Civ. App. 172, 39 S. W. 628. 484 POWERS. 209 issue of bonds, the recitals will not be accepted as a substitute for proof. 522 The decisions of state courts upon questions of commercial law not controlling. In a recent case 523 in the circuit court of ap- peals for the eighth circuit, Judge Sanborn for the court said upon this question : "But the question that has been under consideration here is not one of the construction of the constitution or of the statutes of the state of Iowa. It simply involves the construction and effect of recitals in negotiable instruments. It is a question of commercial, and not of constitutional law, upon which the deci- sions of the state courts are not controlling in the Federal tribu- nals. It is not only the privilege, but the duty, of the Federal courts, imposed upon them by the constitution and statutes of the United States, to consider for themselves, and to form their independent opinions and decisions upon questions of commercial or general law presented in cases in which they have jurisdiction, and it is a duty which they cannot justly renounce or disregard. Juris- 522 Knox County Com'rs v. Aspin- wall, 21 How. (U. S.) 539; Bissell v. City of Jeffersonville, 24 How. (U. S.) 287; Chisholm v. City of Mont- gomery, 2 Woods, 584, Fed. Gas. No. 2,686. "Public officers cannot ac- quire authority by declaring that they have it. They cannot thus shut the mouth of the public whom they represent. The officers and agents of private corporations, entrusted by them with the management of their own business and property, may estop their principals, and sub- ject them to the consequences of their unauthorized acts. But the body politic cannot be thus silenced by the acts or declarations of its agents. If it could be, unbounded scope would be given to the pecu- lations and frauds of public officers. I hold it to be a sound proposition, that no municipal or political body can be estopped by the acts or dec- larations of its offiers from denying their authority to bind it." Town of Coloma v. Eaves, 92 U. S. 484; War- ren County v. Marcy, 97 U. S. 96; Bourbon County Com'rs v. Block, 99 U. S. 686; Dixon County v. Field, 111 U. S. 84; Merchants' Bank v. Bergen County, 115 U. S. 384; Town of Oregon v. Jennings, 119 U. S. 74; Bernards Tp. v. Morrison, 133 U. S. 523; Rich v. Mentz Tp., 134 U. S. 632; Brown v. Bon Homme County, 1 S. D. 216, 46 N. W. 173; Williams v. Town of Roberts, 88 111. 11; City of Vicksburg v. Lombard, 51 Miss. Ill; Hudson v. Inhabitants of Wins- low, 35 N. J. Law, 437; Com. v. Com- mon Councils of Pittsburgh, 88 Pa. 66; DeVoss v. City of Richmond, 18 Grat. (Va.) 338; Simonton, Mun. Bonds, 209 et seq.; Hainer, Mun. Secur. 435 et seq. 523 Independent School Dist. of Sioux City v. Rew (C. C. A.) Ill Fed. 1, 55 L. R. A. 364. 210 ISSUANCE OF SECURITIES. 485 diction of such cases was conferred upon them for the express purpose of securing their independent opinions upon the ques- tions arising in the litigation remitted to them. And a citizen of the United States who has the right to prosecute his suit in the national courts has also the right to the opinions and decisions of those courts upon every crucial question of general or com- mercial law or of right under the constitution or statutes of the nation which he presents." 524 210. Estoppel not applying to recitals of law. The principle of estoppel does not apply, however, to recitals of authority, for in this respect, it is held, every purchaser of bonds acquires and holds them charged with full notice of the possession of power in the first instance on the part of the public corporation to issue them: the question of legislative authority in a public corporation to issue negotiable bonds cannot be con- cluded by mere recitals, even when the bonds have come into the hands of bona fide holders for value. 525 B24 Swift v. Tyson, 16 Pet. (U. S.) 1; Carpenter v. Providence & W. Ins. Co., 1C Pet. (U. S.) 495; New York Cent. R. Co. v. Lockwood, 84 U. S. (17 Wall.) 357; Brooklyn City & N. R. Co. v. National Bank of Republic, 102 U. S. 14; Burgess v. Seligman, 107 U. S. 20; Myrick v. Michigan Cent. R. Co., 107 U. S. 102; Smith v. Alabama, 124 U. S. 465; Bucher v. Cheshire R. Co., 125 U. S. 555; Liv- erpool & G. W. Steam Co. v. Phenix lr.&. Co., 129 U. S. 397; Hartford <7ire Ins. Co. v. Chicago, M. & St. P. R. Co. (C. C. A.) 70 Fed. 201, 30 L. R. A. 193; Speer v. Kearney County Com'rs (C. C. A.) 88 Fed. 749. 525 Town of South Ottawa v. Per- kins, 94 U. S. 260; McClure v. Ox- ford Tp., 94 U. S. 429. Every pur- shaser of municipal bonds which re- fer to the statute under which they were issued is bound to take notice of all its requirements. The court say: "To be a bona fide holder one must be himself a purchaser for val- ue without notice or the successor of one who was. Every man is charge- able with notice of that which the law requires him to know and of that which, after being put upon in- quiry, he might have ascertained by the exercise of reasonable diligence. Every dealer in municipal bonds which upon their face refer 'to the statute under which they were is- sued is bound to take notice of the statute and of all its requirements." After commenting on the statutory requirements and the recitals in the bonds themselves the court contin- ues: "These bonds, therefore, car- ried upon their face unmistakable evidence that the forms of the law under which they purported to have been issued had not been complied with because thirty days had not elapsed between the time the law took effect and the date of the elec- tion. If a purchaser may be, as he 486 POWERS. 211 211. Distinction between power to issue and irregularity in its exercise. The doctrine of recitals, as stated in section 208, although ap- plied frequently, has never been carried to the extreme of holding sometimes is, protected by false re- citals in municipal bonds, the mu- nicipality ought to have the benefit of those that are true." Independent School Dist. of Steam- boat Rock v. Stone, 106 U. S. 183; Dixon County v. Field, 111 U. S. 83; Merchants' Bank v. Bergen County, 115 U. S. 384; Katzenberger v. City of Aberdeen, 121 U. S. 172; Sutliff v. Lake County Com'rs, 147 U. S. 230, following Dixon County v. Field, 111 U. S. 83; Lake County v. Graham, 130 U. S. 674, and distin- guishing Chaffee County v. Potter, 142 U. S. 355, reversing Lake County Com'rs v. Sutliff (C. C. A.) 97 Fed. 270. Citizens' Sav. & Loan Ass'n v. Perry County, 156 U. S. 692; Kelly v. Town of Milan, 21 Fed. 842; Bates v. Independent School Dist. of Riv- erside, 25 Fed. 192; Sutliff v. Lake County, 47 Fed. 106; National Bank of Commerce v. Town of Granada, 48 Fed. 278; National Bank of Com- merce v. Town of Granada (C. C. A.) 54 Fed. 100; Francis v. Howard County (C. C. A.) 54 Fed. 487, af- firming 50 Fed. 44; CofBn v. Kearney County Com'rs (C. C. A.) 57 Fed. 137. City of Cadillac v. Woonsocket Inst. for Savings (C. C. A.) 58 Fed. 935. A recital that the bonds are "refunding bonds" issued to take up "old bonds falling due" estops the city as against a bona fide holder from showing that the old bonds were invalid. Barber County Com'rs v. Society for Savings (C. C. A.) 101 Fed. 767. Recitals in refunding bonds estop the maker from setting up as a de- fense fraudulent indebtedness. Shaw v. Independent School Dist. of Riv- erside, 62 Fed. 911. An estoppel arises from recitals in refunding bonds that prevents a showing of the illegality of the original issue. Prickett v. City of Marceline, 65 Fed. 469; Quaker City Nat. Bank v. No- lan County (C. C. A.) 66 Fed. 883, affirming 59 Fed. 660; Rathbone v. Kiowa County Com'rs, 73 Fed. 395; Manhattan County v. City of Iron- wood (C. C. A.) 74 Fed. 535, follow- ing McClure v. Oxford Tp., 94 U. S. 429; Springfield Safe-Deposit & Trust Co. v. City of Attica (C. C. A.) 85 Fed. 387; D'Esterre v. City of Brooklyn, 90 Fed. 586; Burlington Sav. Bank v. City of Clinton, 111 Fed. 439; Bissell v. City of Kanka- kee, 64 111. 249; McPherson v. Fos- ter Bros., 43 Iowa, 48; Com. of Vir- ginia v. State, 32 Md. 501; Heard v. Calhoun School Dist., 45 Mo. App. 660; Wilkes County Com'rs v. Call, 123 N. C. 308, 44 L. R. A. 252; Union Bank of Richmond v. Oxford Com'rs, 119 N. C. 214, 34 L. R. A. 487; Stan- ly County Com'rs v. Snuggs, 121 N. C. 394, 39 L. R. A. 439; People's Bank of St. Paul v. School Dist. No. 52, 3 N. D. 496, 57 N. W. 787, 28 L. R. A. 642; Miller v. Hixson, 64 Ohio St. 39, 59 N. E. 749; Town of Kla- math Falls v. Sachs, 35 Or. 325, 57 Pac. 329; Livingston v. School Dist. No. 7, 9 S. D. 345, 69 N. W. 15; Nolan County v. State, 83 Tex. 182,. 211 ISSUANCE OF SECURITIES. 487 that public officials can, by their recitals or decisions, create a power on the part of the public corporation to issue bonds where none existed. 526 In a case decided by the supreme court of the United States, 527 Mr. Justice Hunt said: "These bonds are securi- ties which pass from hand to hand with the immunity given by the common law to bills of exchange and promissory notes. The persons who execute and deliver them the officers of the county 17 S. W. 823; Ball v. Presidio Coun- ty (Tex. Civ. App.) 27 S. W. 702. Where bonds purchased were num- bered from ninety to ninety-six in- clusive, this fact alone does not charge a purchaser with notice of lack of power to issue; eighty-six bonds of $1,000 each only being au- thorized, there being no requirement in the statutes or order that bonds should be numbered from one to eighty-six inclusive. Mitchell Coun- ty v. City Nat. Bank, 91 Tex. 361, 43 S. W. 880; Slifer v. Howell's Adm'r, 9 W. Va. 391. sae Town of South Ottawa v. Per- kins, 94 U. S. 260. "Not only the courts but individuals are bound to know the law, and cannot be re- ceived to plead ignorance of it. The holder of the bonds in question can claim no indulgence on that score and can take no advantage from the allegation that he is a bona fide pur- chaser without notice. He would, it is true, be precluded from doing so on another ground, namely, the want of any legislative authority in fact in the town to issue the bonds in question. Want of such authority is a fatal objection to their validity no matter under what circumstances the holder may have obtained them." Northern Bank of Toledo v. Por- ter Tp. Trustees, 110 U. S. 608; Hedges v. Dixon County, 150 U. S. 182; Daviess County v. Dickinson, 117 U. S. 657; Smith v. Town of Ontario, 15 Blatchf. 267, Fed. Gas. No. 13,085; Lewis v. Comanche Coun- ty Com'rs, 35 Fed. 343; Travelers' Ins. Co. v. Oswego Tp., 55 Fed. 361; Swan v. Arkansas City, 61 Fed. 478; National Life Ins. Co. v. Board of Education of Huron (C. C. A.) 62 Fed. 778. The court here held, that if the want of power did not appear from the bonds, or the public rec- ords to which the statutes under which they were issued referred, re- citals might constitute an estoppel in favor of a bona fide purchaser. Rathbone v. Kiowa County Com'rs, 73 Fed. 395; Fairfield v. Rural Inde- pendent School Dist, 111 Fed. 453; Washington County v. David, 2 Neb 1 , Unoff. 649, 89 N. W. 737; Buncombe County Com'rs v. Payne, 123 N. C. 432; National Life Ins. Co. v. Mead, 13 S. D. 37, 82 N. W. 78, 48 L. R. A. 785, rehearing denied, 13 S. D. 342, 83 N. W. 335; Oswego County Sav. Bank v. Town of Genoa, 28 Misc. 71, 59 N. Y. Supp. 829; Cass County v. Wilbarger County, 25 Tex. Civ. App. 52, 60 S. W. 988. If the law under which bonds are issued is un- constitutional, a recital that they were "issued under and in compli- ance with the constitution and laws of the state," affords no protection to a bona fide holder. Peck v. City of Hempstead, 27 Tex. Civ. App. 80, 65 S. W. 653. 527 Daviess County v. Huidekoper, 98 U. S. 98. 488 POWERS. 211 court in this instance are the agents of the municipal body au- thorizing their issue and not of the persons who purchase or re- ceive them. If these agents exceed their authority as to form, manner, detail or circumstance, if they execute it in an irregular manner, it is the misfortune of the town or county and not of the purchaser; the loss must fall on those whom they represent and not on those who deal with them. There must indeed be power which, if formally and duly exercised, will bind the county or town; no bona fides can dispense with this and no recital can excuse it." The doctrine of recitals, however, has been carried to the extent that recitals of public officials that bonds were is- sued for a proper and public purpose and such as authorized are conclusive. 528 528 Marshall County Sup'rs v. Schenck, 72 U. S. (5. Wall.) 772; City of Ottawa v. First Nat. Bank of Portsmouth, 105 U. S. 342. "The bonds in suit constitute a portion of the issue of $60,000 referred to in Hackett v. City of Ottawa, 99 U. S. 86. * * * As in that case, so here, the bonds recite that they were issued in virtue of the power con- ferred by the charter of the city upon its council * * * to borrow money on its credit and to issue, bonds pledging its revenue for the payment thereof, and also in pur- suance of two ordinances of the city council, one, passed June 15, 1869, entitled 'An ordinance to provide for a loan for municipal purposes,' * * * Waiving any direct decision of the question, much elaborated by counsel, as to what * * * is to be regarded as a municipal or corpo- rate purpose for which the city can lawfully exercise the power of bor- rowing money and issuing bonds, we there adjudged the defense to be insufficient for these reasons. The city council had power, the voters consenting, to issue negotiable se- curities for certain municipal pur- poses, if the purchaser under some circumstances, would have been bound to take notice of the provi- sions of the ordinances whose titles were recited in the bonds, he was relieved from any responsibility or duty in that regard by reason of the representation, upon the face of the bonds, that the ordinance provided for a loan for municipal purposes; such a representation, by the con- stituted authorities of the city, would naturally avert suspicion of bad faith upon their part and induce purchasers to omit an examination of the ordinances themselves and consequently the city was estopped, as against a bona fide holder for value, to say that the bonds were not issued for legitimate or proper municipal or corporate purposes." Comanche County v. Lewis, 133 U. S. 198. See, however, Barnett v. City of Denison, 145 U. S. 135; City of Cairo v. Zane, 149 U. S. 122; Guernsey v. Burlington Tp., 4 Dill. 372, Fed. Gas. No. 5,855; National Life Ins. Co. v. Board of Education of Huron (C. C. A.) 62 Fed. 778. See quotations from Judge Sanborn's opinion, 204, note 503, supra; Ris- 213 ISSUANCE OF SECURITIES. 489 212. The doctrine as applied to bonds containing no recitals of authority. Where negotiable bonds are issued containing no recitals of authority, it is quite generally held that they are not unimpeach- able in the hands of bona fide holders. In an action on the bonds under such circumstances, the plaintiff should show either that the bonds contained such recitals as would preclude the public corporation from impeaching their validity or else that they were issued in substantial compliance with the law authorizing them and for a proper purpose. 529 213. Bona fide holder. The question of who is or may become a bona fide holder 530 of negotiable bonds issued by public corporations is an important ley v. Village of Howell (C. C. A.) 64 Fed. 453; Wesson v. Saline Coun- ty (C. C. A.) 73 Fed. 917, following City of Evansville v. Dennett, 161 U. S. 434, and overruling Post v. Pulas- ki County (C. C. A.) 49 Fed. 628; Ashman v. Pulaski County (C. C. A.) 73 Fed. 927; Second Ward Sav. Bank v. City of Huron, 80 Fed. 660; Waite v. City of Santa Cruz, 89 Fed. 619; Haskell County Com'rs v. Na- tional Life Ins. Co. (C. C. A.) 90 Fed. 228; Meade County Com'rs v. Aetna Life Ins. Co. (C. C. A.) 90 Fed. 237; City of Uvalde v. Spier (C. C. A.) 91 Fed. 594; Village of Kent v. Dana (C. C. A.) 100 Fed. 56; Clapp v. Otoe County (C. C. A.) 104 Fed. 473; City of Pierre v. Duns- comb, 106 Fed. 611; Independent School Dist. of Sioux City v. Rew, 111 Fed. 1, 55 L. R. A. 364; Clapp v. Village of Marice City (C. C. A.) Ill Fed. 103; Town of Brewton v. Spira, 106 Ala. 229, 17 So. 606; Brown v. Milliken, 42 Kan. 769; State v. Wichita County Com'rs, 62 Kan. 494, 64 Pac. 45; Thompson v. Village of Mecosta, 127 Mich. 522, 86 N. W. 1044; Jones v. City of Camden, 44 S. C. 319; City of Jefferson v. Marsh- all Nat. Bank, 18 Tex. Civ. App. 539, 46 S. W. 97. But see the case of Noel Young Bond & Stock Co. v. Mitchell County, 21 Tex. Civ. App. 638; Town of Clifton Forge v. Brush Elec. Co., 92 Va. 289, 23 S. E. 288; Mills v. Gleason, 11 Wis. 470. 529 Town of Concord v. Robinson, 121 U. S. 165; Hopper v. Town of Covington, 10 Biss. 488, 8 Fed. 777; Bolles v. Perry County (C. C. A.) 92 Fed. 479; Lewis v. Bourbon Coun- ty Com'rs, 12 Kan. 186; Hubbell v. Town of Custer City, 15 S. D. 55, 87 N. W. 520. sso Mercer County v. Hacket, 68 U. S. (1 Wall.) 83. "Although we doubt not the facts stated as to the atrocious frauds which have been practiced in some counties, in issu- ing and obtaining these bonds we cannot agree to overrule our own de- cisions and change the law to suit hard cases. The epidemic insanity of the people, the folly of county offi- cers, the knavery of railroad 'specu- lators' are pleas which might have 490 POWERS. 213 one, for upon the existence of such a condition depends the application of the principles of estoppel, as suggested in the pre- ceding sections. To constitute a bona fide holder it is necessary that one should have purchased the bond before maturity, 531 have given value for it, 632 and have no legally competent knowledge of defects or irregularities in the manner of issue which as against one having such knowledge does not preclude the municipality just weight in an application to re- strain the issue or negotiation of these bonds but cannot prevail to au- thorize their repudiation, after they have been negotiated and have come into the possession of bona fide hold- ers." Galveston, H. & H. R. Co. v. Cowdrey, 78 U. S. (11 Wall.) 459. "One who purchases railroad bonds in open market, supposing them to be valid and having no notice to the contrary will be deemed a bona fide holder." McClure v. Oxford Tp., 94 U. S. 429. "A bona fide holder is a purchaser for value without notice, or the successor of one who was." Town of Venice v. Murdock, 92 U. S. 494; Town of Genoa v. Woodruff, 92 U. S. 502; Humboldt Tp. v. Long, 92 U. S. 642; Douglas County Com'rs v. Bolles, 94 U. S. 104; Town of Or- leans v. Platt, 99 U. S. 676; Mont- clair Tp. v. Ramsdell, 107 U. S. 147; Sayles v. Garrett, 110 U. S. 288; Mobile Sav. Bank v. Oktibbeha Coun- ty Sup'rs, 24 Fed. 110; Sioux City & St. P. R. Co. v. County of Os- ceola, 45 Iowa, 168; Id., 52 Iowa, 26; Independent Dist. of Rock Rapids v. Society for Savings, 98 Iowa, 581, 67 N. W. 370; School Dist. No. 40 v. Gushing, 8 Kan. App. 728, 54 Pac. 924; Taylor v. Daviess County, 17 Ky. L. R. 711, 32 S. W. 416; Pugh v. Moore, 44 La. Ann. 209; State v. Clinton, 28 La. Ann. 52; State v. Hart, 46 La. Ann. 40; City of Eliza- beth v. Force, 29 N. J. Eq. 587; Cop- per v. Jersey City, 44 N. J. Law, 634. See in 29 Am. Law Reg. (N. S.) 380, a scholarly and thorough discussion of the question and the rights of bona fide holders by Clar- ence H. Childs of the Minneapolis bar. Germania Sav. Bank v. Village of Suspension Bridge, 73 Hun, 590, 26 N. Y. Supp. 98. One cannot be a bona fide holder of bonds stolen from the public authorities before issue. Town of Ontario v. Union Bank of Rochester, 21 Misc. 770, 47 N. Y. Supp. 927; Cagwin v. Town of Hancock, 84 N. Y. 532; Seybel v. National Currency Bank, 54 N. Y. 288; Oswego County Sav. Bank v. Town of Genoa, 66 App. Div. 330, 72 N. Y. Supp. 786. There cannot be a bona fide holder of bonds issued without authority. See, also, 18 Am. Rep. 259-269. Hainer, Mun. Secur. 397 et seq., and Simonton, Mun. Bonds, 116 et seq. 631 Texas v. White, 74 U. S. (7 Wall.) 700; Town of Grand Chute v. Winegar, 82 U. S. (15 Wall.) 355; Cromwell, v. Sac County, 96 U. S. 51. 532 Briggs v. Town of Phelps, 70 Fed. 29; D'Esterre v. City of Brook- lyn, 90 Fed. 586; Town of Greenburg v. International Trust Co. (C. C. A.) 94 Fed. 755; Thompson v. Village of Mecosta, 127 Mich. 522, 86 N. W. 1044, citing Common Council of Ce- dar Springs v. Schlich, 81 Mich. 405, 8 L. R. A. 851; Gibbs v. School Dist No. 10, 88 Mich. 834. 213 ISSUANCE OF SECURITIES. 491 from setting them up. 533 In a leading text-book -on municipal bonds 534 the following definition is given: "A bona fide holder of a negotiable bond or other negotiable paper is a second or other subsequent holder of it who takes it for value in good faith before maturity and without notice of defects and such a holder obtains a perfect title and may hold it against the world. It becomes his absolutely, with the right to demand pay- ment of it for himself and, if necessary, to enforce its collection in his own name and his privies have the same rights." It is not necessary to constitute one a bona fide holder of negotiable bonds to show that he himself paid value therefor but he can rely upon the title of any prior bona fide holder for value. A transferee from a bona fide purchaser of negotiable bonds takes all the rights of the transferor and may invoke every presumption and estoppel from their recitals to sustain their validity that such transferor might, although he takes them as a donation after maturity and with notice of alleged defenses, 535 or without re- 533 Scotland County v. Hill, 132 U. S. 107; Mobile Sav. Bank v. Oktib- beha County Sup'rs, 22 Fed. 580; Suffolk Sav. Bank v. City of Boston, 149 Mass. 364, 4 L. R. A. 516; Schmid v. Village of Frankfort, 131 Mich. 197, 91 N. W. 131; Starin v. Town of Genoa, 23 N. Y. 439; City of Lynchburg v. Slaughter, 75 Va. 57. 534 Simonton, Mun. Bonds, 116. See, also, Bronson, Mun. Bonds, pp. 29 et seq. 535 Village of Montclair v. Rams- dell, 107 U. S. 147, citing and quot- ing from Douglas County Com'rs v. Bolles, 94 U. S. 104, where, in speak- ing of recitals in bonds, the cour.t said: "Behind such a recital, as we have seen, a bona fide holder for value paid is bound to look for noth- ing except legislative authority giv- en for the issue of municipal bonds to railroad companies. He is not required to examine whether the conditions upon which such author- ity may be exercised have been ful- filled. He may rely upon the deci- sion made by the tribunal selected by the legislature. Do then, the plaintiffs below stand in the posi- tion of bona fide holders for value paid, and without notice of any defect or irregularity in the pro- ceedings anterior to the issue of the jonds? In view of the findings of the circuit court, very plainly they do. They are the holders of the coupons in suit taken from those bonds, some of which they purchased without notice of any defense. The residue of those held by them are owned by other persons who depos- ited them with the plaintiffs for col- lection taking a receipt. There is no evidence when or for what con- sideration those other persons pur- chased and no evidence of actual no- tice to them or to the plaintiffs of any of the facts anterior to the is- sue of the bonds. The findings of the court exhibit no fraud in the in- ception of the contracts nor any- 492 POWERS. 213 gard to any knowledge which such purchaser may himself have affecting the validity of the bonds. 536 An overdue and unpaid coupon, it has been held, does not render the whole bond dis- honored so as to deprive the buyer of the character of a bona fide purchaser before maturity. 537 The fact that a railroad corn- thing that casts upon the holders of the bonds or coupons the burden of showing that they are Jxma fide holders for value. The legal pre- sumption, therefore, is that they are. But the plaintiffs are not forced to rest upon mere presumption to sup- port their claims to be considered as having the rights of purchasers with- out notice of any defense. They can call to their aid the fact that their predecessors in ownership were such purchasers. To the rights of those predecessors they have succeeded. Certainly the railroad company paid for the bonds and coupons by giving an equal amount of their stock, which the county now holds; and nothing in the special facts found Bhows that the company knew of any irregularity or fault in the is- sue. And still more; the contractor for building the railroad received the bonds from the county in pay- ment of his work either in whole or in part after his work had been com- pleted. There is no pretense that he had notice of anything that should have made him doubt their validity. Why was he not a bona fide purchas- er for value? The law is undoubted that every person succeeding him in the ownership of the bonds is en- titled to stand upon his rights." Lake County Com'rs v. Sutliff (C. C. A.) 97 Fed. 270; Pickens Tp. T. Post (C. C. A.) 99 Fed. 659, citing Goodman v. Simonds, 20 How. (U. S.) 343; Brown v. Spofford, 95 U. S. 474. Hughes County v. Livingston (C. C. A.) 104 Fed. 306; Johnson v. But- ler, 31 La. Ann. 770; Seybel v. Na- tional Currency Bank, 54 N. Y. 288, 13 Am. Rep. 583. A purchaser of bonds payable to buyer is not bound to make inquiry of or take any spe- cial precaution concerning the title of one offering to sell such bonds. 536 Gunnison County Com'rs v. Rollins, 173 U. S. 255, following Chaffee County v. Potter, 142 U. S. 355; Lake County v. Graham, 130 U. S. 674. 837 Cromwell v. Sac County, 96 U. S. 51. "The interest stipulated was a mere incident of the debt. The holder of the bond had his option to insist upon its payment when due, or to allow it to run until the ma- turity of the bond; that is until the principal was payable. Many causes may have existed for a failure to meet the interest as it matured, en- tirely independent of the question of the validity of the bonds in their inception. The payment of previous installments of interest would seem to suggest that only causes of a temporary nature had prevented their continued payment. If no in- stallment had been paid, and several were past due, there might have been greater reason for hesitation on the part of the purchaser to take the paper and suspicions might have been excited that something was wrong in issuing it. All that we now decide is, that the simple fact that an installment of interest is overdue and unpaid, disconnected from other facts is not sufficient to 213 ISSUANCE OF SECURITIES. 493 pany, to whom the municipal aid bonds were given, delivered the bonds to third parties in payment for goods will not deprive such holders of the rights of purchasers in good faith and for value if the goods for which they were exchanged were of value to the company in the construction or operation of the road. 538 The burden of proof, it is usually held, to establish the fact of a bona fide holding is upon the plaintiff in an action brought to recover on municipal bonds. 539 One cannot be a bona fide holder where the conditions or circumstances are such as to charge him with notice of the want of original authority to issue bonds. 540 affect the position of one taking the bonds and subsequent coupons be- fore their maturity for value as a bona fide purchaser. To hold other- wise would throw discredit upon a large class of securities issued by municipal and private corporations having years to run with interest payable annually or semi-annually. Temporary financial pressure, the falling off of expected revenues or income and many other causes hav- ing no connection with the original validity of such instruments have heretofore in many instances pre- vented a punctual payment of every installment of interest on them as it matured; and similar causes may be expected to prevent a punctual pay- ment of interest in many instances hereafter. To hold that a failure to meet the interest as it matures ren- ders them, though they may have years to run, and all subsequent coupons dishonored paper, subject to all defenses good against the orig- inal holders, would greatly impair the currency and credit of such se- curities and correspondingly dimin- ish their value." National Bank of North America v. Kirby, 108 Mass. 497; Burnham v. Brown, 23 Me. 400; Grafton Bank v. Doe, 19 Vt. 463; Boss v. Hewitt, 15 Wis. 260. sss Kennicott v. Wayne County Sup'rs,6 Biss. 138, Fed. Cas. No. 7,710. 639 Tracey v. Town of Phelps, 22 Fed. 634. But see Pickens Tp. v. Post (C. C. A.) 99 Fed. 659, as hold- ing that the holder of a negotiable instrument is presumed to have tak- en it before maturity for value and without notice of defects. Grant Tp. v. Reno Tp., 114 Mich. 41, 72 N. W. 18. "To entitle Haugan (the holder of the bonds) to a judg- ment against the township of Grant it was necessary that he should show that he or some former owner of the bonds was a purchaser in good faith before maturity, for a valuable con- sideration and without notice of the invalidity of the bonds, as the law imposes the burden of such showing upon the plaintiff where the defend- ant shows that the bond or note was illegal or void in the hands of the payee." Citing Paton v. Coit, 5 Mich. 505; Manistee Nat. Bank T. Seymour, 64 Mich. 59, 31 N. W. 140; Bottomley v. Goldsmith, 36 Mich. 27; Mace v. Kennedy, 68 Mich. 389, 36 N. W. 187; Conley v. Winsor, 41 Mich. 253; Lytle v. Town of Lan- sing, 147 U. S. 59, 13 Sup. Ct. 254. Thompson v. Village of Mecosta, 127 Mich. 522, 86 N. W. 1044; Thompson v. Town of Mamakat- ing, 37 Hun (N. Y.) 400. 540 Farmers' Loan & Trust Co. v. City of Galesburg, 133 U. S. 156; Francis v. Howard County, 50 Fed. 494 POWERS. 214. Coupons; their legal character. The express authority granted public corporations to issue ne- gotiable bonds bearing interest, carries with it the power to issue evidences of the latter obligation in the form of coupons payable to bearer or to order. 541 A coupon is therefore a written promise by the maker of the bond to which it may be attached to pay one of the installments of interest due upon the principal. 542 When 44. "Howard County assessment rolls of 1883 were public records, made in obedience to the constitu- tion and laws of the state. They were open to the inspection of the public and tney contained the amount of the taxable property of the county. Purchasers of the bonds were charge- able with notice of these records and had they been consulted, the discov- ery would have followed that a tax of one-fourth of one per cent au- thorized by the constitution and the third section of the act of 1881 lev- ied annually on property valued at $863,011.38 would liquidate in ten years an indebtedness of only $14,- 982.77. The bonds in excess of that amount are void and collection of the excess cannot be enforced against the county, even by a bona fide purchaser for value." Cagwin v. Town of Hancock, 84 N. Y. 532. "There can be no bona fide holder of bonds within the meaning of the law applicable to negotiable paper which have been issued without authority. A town has no general authority to issue such bonds. It can issue them only by virtue of special authority con- ferred by some statute. Unless is- sued in the way pointed out by stat- ute they cannot bind the town. The statute specifies the powers of the agents of the town and the precise conditions upon which the bonds could be issued; and all persons taking the bonds are chargeable with knowledge of the statute and they must see to it that the statute has been complied with before they can with absolute safety take the bonds. Such is the law as laid down in this state." s* 1 Atchison Board of Education v. De Kay, 148 U. S. 591. "But it is further insisted that even if the bonds were valid, the coupons were not because coupons are not named in the section of the statute author- izing the issue of the bonds. But coupons are simply instruments con- taining the promise to pay interest and the express authority was to is- sue bonds bearing interest. While it is true that the power to borrow money granted to a municipal cor- poration does not carry with it by implication the power to issue nego- tiable bonds we are of opinion that the express power to issue bonds bearing interest carries with it the power to attach to those bonds in- terest coupons." 542 Moore v. Greenhow, 114 U. S. 338. And see Vashon v. Greenhow, 135 U. S. 713, construing the coupon contract of the state of Virginia as authorized by the funding acts of March 30, 1871, and March 28, 1879. Strickler v. Yager, 29 Fed. 244; Wil- lis v. Miller, 29 Fed. 238; Antoni v. Wright, 22 Grat. (Va.) 833; Poin- ISSUANCE OF SECURITIES. 495 legally issued by public corporations they, equally with the bonds to which annexed, if payable to bearer or payable to order and endorsed in blank, become transferable by delivery and are sub- ject to the same rules and principles of negotiable paper that apply to the bond itself with respect to the rights and title of a bona fide holder. 5 * 3 The bona fide holder of such coupons, there- fore, has the right to invoke the same principles of law which attach to a negotiable bond and apply the same doctrines of estoppel and, though separated from the bond to which they were once attached, they retain the same nature and character as the bond. 544 A holder of a detached coupon possesses equal rights with the owner of the bond from which it was cut. 54 * Suit can be maintained upon them under the same conditions as dexter v. Greenhow, 84 Va. 441, 4 S. E. 742, following Antoni v. Green- how, 107 U. S. 769, 2 Sup. Ct. 91. 543 City of Lexington v. Butler, 81 U. S. (14 Wall.) 282; Town of East Lincoln v. Davenport, 94 U. S. 801. In this case Hunt, J., said, in speak- ing of the point mentioned in the text: "The case shows that the plaintiff below was the bona fide owner of the coupons sued upon. Questions of form merely or irregu- larity or fraud or misconduct on the part of the agents of the town can- not therefore, be considered. Wheth- er the supervisor of the town signed the bonds during the midnight hours, whether he delivered them at about daylight on the morning of April 2, 1873, and whether he im- mediately left the town to avoid the service of an injunction are matters not chargeable to the owner of the bonds. The supervisor was not his agent but the agent of the town, and If there has been misconduct on his part, the town, rather than a stran- ger must bear the consequences. There must be authority in the town to Issue the bonds by the statutes of the state. If this cannot be found the holder must fail, if it exists, he is entitled to recover." Thayer v. Montgomery County, 3 Dill. 389, Fed. Gas. No. 13,870; Cooper v. Town of Thompson, 13 Blatchf. 434, Fed, Cas. No. 3,202; Manhattan Sav. Inst. v. New York Nat. Exch. Bank, 170 N. Y. 58; Grand Rapids & I. R. Co. v. Sanders, 54 How. Pr. (N. Y.) 214. s** Lake County Com'rs v. Platt (C. C. A.) 79 Fed. 567; Gray v. York, 15 Blatchf. 335, Fed. Cas. No. 5,731; Augusta Bank v. City of Au- gusta, 49 Me. 507; First Nat. Bank of St. Paul v. Scott County Com'rs, 14 Minn. 77 (Gil. 59). See as to the rights of a bona fide holder bought after maturity. Miller v. Town of Berlin, 13 Blatchf. 245, Fed. Cas. No. 9,562; Arents v. Com., 18 Grat. (Va.) 750. 545 City of Kenosha v. Lamson, 76 U. S. (9 Wall.) 477; Evertson v. Na- tional Bank of Newport, 66 N. Y. 14, 23 Am. Rep. 9; Second Nat. Bank v. School Dist. of Connellsville, 23 Pa. Co. Ct. R. 636; Brown v. Town of Point Pleasant, 36 W. Va. 290, 15 S. E. 209. 496 POWERS. 214 would apply to the bond itself and the bona fide holder is as ef- fectually shielded in such an action from the defense of prior equities between the original parties as the holder of negotiable instruments. 548 They are generally transferred by delivery being promises to pay to bearer and bear interest from the time of de- mand after their maturity. 547 If unpaid they are considered in- dependent contracts for the payment of the interest they repre- sent and an action upon them can be maintained without any proof of title to the bonds; the possession of the coupon is pre sumptive evidence of the right of the holder to recover. 548 ins city of Lexington v. Butler, 81 U. S. (14 Wall.) 282. "Coupons at- tached as interest warrants to bonds for the payment of money lawfully issued by municipal corporations as well as the bonds to which they are attached, when they are payable to order or are indorsed in blank or are made payable to bearer, are transfer- able by delivery and are subject to the same rules and regulations so far as respects the title and rights of the holder as negotiable bills of exchange and promissory notes. Holders of such instruments, if the same are endorsed in blank or are payable to bearer are as effectually shielded from the defense of prior equities between the original par- ties if unknown to them at the time of the transfer, as the holders of any other class of negotiable instru- ments." Citing Mercer County v. Racket, 68 U. S. (1 Wall.) 83; Mo- ran v. Miami County Com'rs, 2 Black (U. S.) 722. Bank of California v. Dunn, 66 Cal. 38; Muhlenburg County v. More- head, 20 Ky. L. R. 377, 46 S. W. 216; Bainbridge v. City of Louisville, 83 Ky. 285. A municipality is liable to the owner of stolen coupons if paid after maturity to one other than such true owner although in the hands of a bona fide purchaser. 547 Town of Genoa v. Woodruff, 92 U. S. 502; United States Mortg. Co. v. Sperry, 138 U. S. 313; City of Cairo v. Zane, 149 U. S. 122; Cor-, coran v. Chesapeake & 0. Canal Co., 1 MacArthur (D. C.) 358; Hughes County v. Livingston (C. C. A.) 104 Fed. 306; People v. Getzendaner, 137 111. 234; Town of Lexington v. Union Nat. Bank, 75 Miss. 1, 22 So. 291; Burroughs v. Richmond County Com'rs, 65 N. C. 234; McLendon v. Anson County Com'rs, 71 N. C. 38; Harper v. Ely, 70 111. 581; Humph- reys v. Morton, 100 111. 592; Drury v. Wolfe, 134 111. 294. 5 Knox County Com'rs v. Aspin- wall, 21 How. (U. S.) 539; Thom- son v. Lee County, 70 U. S. (3 Wall.) 327; McCoy v. Washington County, 3 Wall. Jr. 381, Fed. Gas. No. 8,731; City of Kenosha v. Lamson, 76 U. S. (9 Wall.) 477. "We agree that if this were an action upon the bonds to recover installments of interest that had accrued thereon * * * there would be great difficulty in maintaining in his name as well as without producing the bonds as the proper evidence that interest was due. The plaintiff under such cir- cumstances, doubtless, would have a remedy for withholding the interest; but * * * we do not regard the action as founded upon the bonds 215 ISSUANCE OF SECURITIES. 497 215. Time and place of payment. The fact that coupons are made payable at a certain place does not necessarily require a demand for their payment to be made at that place. 5 * 9 If, however, the authority for the issue of nego- tiable bonds with coupons requires that they "shall be transfer- able only on the books of the city," it has been held, a holder of the coupons cannot recover unless the bonds have been trans- ferred as provided in the act. 550 If payable out of a special fund, but upon the coupons. The bonds are recited in very general terms, it is true in the declaration; but it is by way of explaining and bringing into view the relation which the cou- pons originally held to the bonda and which in an important sense, they still hold, though distinct as it respects ownership, as they repre- sent the interest that had become due upon them. The relation we re- fer to is that these coupons are not received or intended to have the ef- fect of extinguishing the interest due on the bonds as this collateral se- curity, or rather this evidence of the interest, upon well settled prin- ciples, cannot have that effect with- out an express agreement between the parties. Besides the coupons are given simply as a convenient mode of obtaining payment of the interest as it becomes due upon the bonds. There is no extinguishment till pay- ment." Kennard v. Cass County, 3 Dill. 147, Fed. Cas. No. 7,697; Dudley v. Lake County Com'rs (C. C. A.) 80 Fed. 672; Town of Cicero v. Clifford, 53 Ind. 191; Burroughs v. Richmond County Com'rs, 65 N. C. 234; Bank of U. S. v. Macalester, 9 Pa. 475; Beaver County v. Armstrong, 44 Pa. 63; National Exch. Bank v. Hart- ford, P. & F. R. Co., 8 R. I. 375; City of Memphis v. Bethel (Tenn.) 17 S. W. 191 ; Kennard v. Cass Coun- ty, 1 Cent. Law J. 35. See, also, New London City Nat. Bank v. Ware River R. Co., 41 Conn. 542; Spooner v. Holmes, 102 Mass. 503, 3 Am. Rep. 491; Smith v. Clark County, 54 Mo. 58; Langston v. South Carolina R. Co., 2 S. C. (2 Rich.) 248. 5*9 Walnut Tp. v. Wade, 103 U. S. 683; Hughes County v. Livingston (C. C. A.) 104 Fed. 306. "The fact that the bonds and coupons were not presented for payment at the bank in New York where by their terms they were payable, was immaterial. There was no claim that the county had ever paid them, or endeavored to pay them; no claim that it had ever placed the money at the bank in New York to be applied to their payment. In this state of the case, the plaintiff was not required to go through the useless ceremony of pre- senting his coupons where there was nothing to pay them before he com- menced his suit for the default of the county. The fact that coupons are made payable at a particular place does not make a presentation for payment at that place necessary before an action can be maintained upon them." Smith v. Tallapoosa County, 2 Woods, 574, Fed. Cas. No. 13,113; Wallace v. McConnell, 13 Pet. (U. S.) 136. ssoQelrich v. City of Pittsburgh, 1 Pittsb. Rep. 522, Fed. Cas. No. 10,- 442. Abb. Corp. 32. 498 POWERS. 216 it is necessary in a suit to allege and prove the existence of the fund and in the case there are not moneys sufficient in such fund, a demand for payment is properly refused and the holder of such coupons will have no right of action to recover the account due from the general revenues of the corporation. 551 A condition imposed by a municipality upon the holder of coupons in regard to their deposit for payment not authorized by the conditions of the bond from which the coupons were detached is not binding upon the coupon holder. 552 216. Negotiable securities; sale. The manner or time of sale of bonds issued by a public corpo- ration may be irregular or in violation of some express statutory provision which condition is considered of so grave a character as to raise a serious question of their validity even though in all other respects such bonds are legal. Circumstances to be con- sidered in determining their validity when considered with refer- ence to sale may be their disposal at a price less than par when prohibited in this respect by law; 553 the consideration for the 65i Corcoran v. Chesapeake & O. Canal Co., 1 MacArthur (D. C.) 358; Hall v. City of New Orleans, 19 Fed. 870; Lorsbach v. Lincoln County, 94 Fed. 963. Neither coupons nor the bonds to which they may have been attached nor judgments upon them are claims within the meaning of the Nevada statutes requiring all claims against counties to be presented and allowed by the proper county offi- cials. State v. Lincoln County Com'rs, 23 Nev. 262, 45 Pac. 982; Seymour v. Frost, 25 Wash. 644, 66 Pac. 90. 552 Bailey v. Buchanan County, 54 N. Y. Super. Ct. (22 J. & S.) 237. 553 Mercer County v. Racket, 68 U. 8. (1 Wall.) 83; Richardson v. Law- fence County, 154 U. S. 536; Na- tional Life Ins. Co. v. Board of Edu- cation of Huron (C. C. A.) 62 Fed. 778; Williams v. Board of Revenue of Butler County, 123 Ala. 432, 26 So. 346; Jones v. Macon & B. R. Co., 39 Ga. 138, determining the right of a citizen to restrain the illegal use or sale, below a lawful price, of rail- road aid bonds; Sherlock v. Village of Winnetka, 59 111. 389; City of Atchison v. Butcher, 3 Kan. 104; Frantz v. Jacob, 88 Ky. 525, 11 S. W. 654; Neuse River Nav. Co. v. New Bern Com'rs, 52 N. C. (7 Jones) 275; Baker v. City of Elizabeth, 37 N. J. Law, 142. People v. Dakin, 43 Hun (N. Y.) 382. The premium from the sale of bonds belongs, so it is held in this case, to the fund to create which the bonds were issued. Delafield v. State of Illinois, 26 Wend. (N. Y.) 192; Citizens' Sav. Bank v. Town of Greenburg, 31 Misc. 428, 65 N. Y. Supp. 554, citing Cagwin v. Town of Hancock, 84 N. Y. 532; Brownell v. Town of Greenwich, 114 N. Y. 518, 4 L. R. A. 685, following Village of ISSUANCE OF SECURITIES. 499 sale whether cash received or the delivery of the bonds as the payment of the original obligation ; 554 the mode of sale or delivery whether through a financial agent or representative of the cor- poration, directly by its own officers or after public notice to the best bidder; 550 and the time of sale considered with reference to Ft. Edward v. Fish, 156 N. Y. 363, and distinguishing Town of Green- burg v. International Trust Co. (C. C. A.) 94 Fed. 755. Armstrong County v. Brinton, 47 Pa. 367; Whelen's Appeal, 108 Pa. 162. Where the sale of bonds is pro- hibited at less than par, com- missions are not permissible which reduce the amount received by the corporation to less than par. Those bonds however, which had been in the hands of bona fide holders were held good. Germania Sav. Bank v. Town of Darlington, 50 S. C. 337; Nalle v. City of Austin (Tex. Civ. App.) 21 S. W. 375; Hunt v. Fawcett, 8 Wash. 396. Where bonds are prohibited by law from being sold under par, a contract is void by which a com- mission is paid in effect making a sale at less than par. Where the statutes do not pro- hibit the sale of public securities at less than par, it is now generally held that they may be sold at such prices as they may bring in the mar- ket. See Griffith v. Burden, 35 Iowa, 143; Orchard v. School Dist. No. 70, 14 Neb. 378; and City of Memphis v. Bethel (Tenn.) 17 S. W. 191. 554 Com. v. Inhabitants of Wil- liamstown, 156 Mass. 70, 30 N. E. 472; Hoag v. Town of Greenwich, 133 N. Y. 152. The public corpora- tion may purchase its own bonds. Evans v. Tillman, 38 S. C. 238, 17 S. E. 49. The question of accrued in- terest considered with reference to a provision for sale of bonds "at not less than par or face value." Dur- yee v. Friars, 18 Wash. 55; Neale v. Wood County Ct., 43 W. Va. 90, 27 S. E. 370. 555 Roberts & Co. v. Taft (C. C. A.) 109 Fed. 825; Mills v. Bellmer, 48 Cal. 124. A public official has no right to insert a condition in an ad- vertisement calling for bonds which is not to be implied from his author- ized duty simply to advertise and is not necessary to the exercise of his authority. Smith v. Los Angeles County, 99 Cal. 628. Public officials under act of March 14, 1883, have no power to employ an agent to procure bids for bonds about to be issued. Sidway 7. South Park Com'rs, 120 111. 496, 11 N. E. 852; Sherlock v. Village of Winnetka, 59 111. 389. The sale of bonds by a public cor- poration to its officials will be void and this without considering those principles of equity which apply to persons acting in a fiduciary capaci- ty or the legal doctrine that no one can contract with himself. Reed v. -Town of Orleans, 1 Ind. App. 25, 27 N. E. 109; Young v. Tip- ton County Com'rs, 137 Ind. 323, 36 N. E. 1118; Butterfield v. Inhab- itants of Melrose, 88 Mass. (6 Al- len) 187: Suffolk Sav. Bank v. City of Boston, 149 Mass. 364; Powell v. Heisler, 45 Minn. 549. Town officers negotiating and selling bonds issued under a void statute are not per- sonally liable to one purchasing with 500 POWERS. 216 their formal and legal issue or delivery. 556 In all these essentials the law presumes a full compliance with the terms of authority and it is seldom that bonds valid in other respects will be held void because of irregularities in the time or manner of sale. A substantial compliance with formalities attendant upon their dis- position is all the courts require and this rule is especially appli- cable where there is authority for their issue, the manner of their issue has been regular and they have passed into the hands of bona fide holders. 557 If there are irregularities in connection with the manner or time of sale, the agreement or contract for such sale may be held void without affecting the validity of the bonds. 558 Where the marketable value of municipal bonds is im- paired or destroyed by questions affecting their legality in con- nection with the authority to issue or the manner of its exercise, a prospective buyer or bidder cannot be compelled to take such bonds or, in case of his refusal, he is not liable for damages which the corporation may sustain by reason of such action. This rule notice of the act under which the bonds were issued or the use to be made of their proceeds. Butler County v. Boatmen's Bank, 143 Mo. 13, 44 S. W. 1047: Coquard v. School Dist. of Joplin, 46 Mo. App. 6; City of New York v. Sands, 105 N. Y. 210, 11 N. E. 820, reversing same case in 39 Hun, 519; Arm- strong v. Village of Ft. Edward, 159 N. Y. 315. The express authority to borrow money and issue bonds im- plies the power to employ a person to procure a purchaser for such bonds. Street v. Craven County Com'rs, 70 N. C. 644; Blanton v. Mc- Dowell County Com'rs, 101 N. C. 532. "eGaddis v. Richland County, 92 111. 119; Attorney General v. City of Salem, 103 Mass. 138; Attorney Gen- eral v. Burrell, 31 Mich. 25; People T. Booth, 32 N. Y. 397; People v. Clark, 53 Barb. (N. Y.) 171. i n re Central Irr. Dist., 117 Cal. 382, 49 Pac. 354; Thomas v. City of Grand Junction, 13 Colo. App. 80, 56 Pac. 665; Duval County v. Knight, 42 Fla. 366, 29 So. 408; Cushman v. Carver County Com'rs, 19 Minn. 295 (Gil. 252), following The Chaska Co. v. Carver County Sup'rs, 6 Minn. 130 (Gil. 204); Nin- inger v. Carver County Com'rs, 10 Minn. 133 (Gil. 106). 558 Roberts & Co. v. Taft (C. C. A.) 109 Fed. 825; State v. West Du- luth Land Co., 75 Minn. 456. Cer- tain contract considered and held not in violation of Laws 1895, c. 289, 4, forbidding the sale of certain bonds at less than their par value. Village of Ft. Edward v. Fish, 86 Hun, 548, 33 N. Y. Supp. 784; Vil- lage of Ft. Edward v. Fish, 156 N. Y. 363; Elyria Gas & Water Co. v. City of Elyria, 57 Ohio St. 374. So held with reference to an ordinance. Hunt v. Fawcett, 8 Wash. 396. 217 ISSUANCE OF SECURITIES. 501 holds true even where there is a subsequent decision passing upon the questions raised and establishing the validity of the bonds. 559 217. Their payment. Negotiable bonds as issued by public corporations may have provision made for their payment from a special fund or special tax levy upon specific property, 560 or they may be a general ob- ligation of the corporation and payable from its general rev- enues. 561 In the former case, such bonds are not generally held an indebtedness coming within the meaning of the constitutional provisions but simply an assignment of the rights of the public corporation in and to certain sources of revenue. The holder of such bond is limited in his recovery, either of principal or interest, to such revenues or funds. 562 Though it may depend upon the 559 City of Great Falls v. Theis, 79 Fed. 943. After discussing the busi- ness customs of brokers in bonds the court say: "In view of these well- known facts and in accordance with the usages of the country in such transactions, it is necessary in order to give effect to the intentions of the parties, to read into the contract an implied condition that the buyers should not be bound to take the bonds unless the proceedings of the city government had been conducted in substantial conformity with the laws, and proper records had been made so that competent lawyers of good reputation would be able to certify to the validity of the bonds. In every contract to sell land and give a good and sufficient deed there is an implied warranty for a mar- ketable title and the vendor cannot enforce the contract against his ven- dee when there is an apparent flaw in his title for in such a case the court will not hazard an opinion as to whether or not the title can be sustained if it should become the subject of litigation. For the same reasons the courts must, in such cases as the one under consideration refuse to adjudge a party liable to pay damages for refusing to accept municipal bonds without marketable value where the value is destroyed or impaired by questions of legality arising from facts shown by or omis- sions in the plaintiff's own records." sso United States v. Macon County, 99 U. S. 582; Bates v. Gerber, 82 Cal. 550, 22 Pac. 1115; Davis v. City of Des Moines, 71 Iowa, 500. 56i white v. City of Decatur, 119 Ala. 476, 23 So. 999. Where priority is given to bond holders of surplus revenues, they cannot be used for the payment of a mortgage to the exclusion of bond creditors. State v. Hannibal & St. J. R. Co. (Mo.) 11 S. W. 746; Lewis v. Taylor, 18 Ohio Cir. Ct. R. 443; Richardson v. Marshall County, 100 Tenn. 346, 45 S. W. 440. The payment and can- cellation of municipal bonds held as absolutely extinguishing them. No subsequent theft and recirculation can make them valid obligations against the maker. sea Braun v. Benton County Com'rs, 66 Fed. 476; Goshen High- 502 POWERS. 217 wording of the security whether the rule holds in all cases, the indebtedness may be for a special purpose and still, by its word- ing, payable out of the general revenues or a general obliga- tion. 563 The payment of all indebtedness incurred by a publie corporation is usually made at its fiscal office, 564 unless by express promise in the evidence of indebtedness, payment is arranged way Com'rs v. Jackson, 165 111. 17; City of Valparaiso v. Gardner, 97 Ind. 1; Strieb v. Cox, 111 Ind. 299; Quill v. City of Indianapolis, 124 Ind. 292; City of New Albany v. McCulloch, 127 Ind. 500; Davis v. City of Des Moines, 71 Iowa, 500; City of Clinton v. Walliker, 98 Iowa, 655; Kingsberry v. Pettis County, 48 Mo. 209; Walker v. Munroe County Com'rs, 11 Ind. App. 285, 38 N. E. 1095; City of Galveston v. Heard, 54 Tex. 420; Baker v. City of Seattle, 2 Wash. St. 576. But see Carroll County v. United States, 85 U. S. (18 Wall.) 71; United States v. Clark County, 95 U. S. 769; United States v. Clark County, 96 U. S. 211; Kim- ball v. Grant County Com'rs, 21 Fed. 145; City of Wyandotte v. Zeitz, 21 Kan. 649; State v. Fayette County Com'rs, 37 Ohio St. 526. See, also, authorities cited in the following note. BOS United States v. City of Ft. Scott, 99 U. S.152. Justice Harlan in the opinion in this case said: "The general reference upon the margin of the bonds, to the ordinance under which the improvement was project- ed should not, in view of the general powers of the council, as declared in the statute, be held as qualifying or lessening the unconditional promise of the city, set forth in the body of the bonds, itself to pay the bonds, with their prescribed interest, at maturity. The agreement is that the city shall pay the interest and prin- cipal at maturity. There is no res- ervation, as against the purchasers of the bonds, of a right, under any circumstances, to withhold payment at maturity, or to postpone payment until the city should obtain, by spe- cial assessments upon the improved property the means with which to make payment, or to withhold pay- ment altogether, if the special as- sessment should prove inadequate for payment." "Experience informs us that the city would have met with serious, if not insuperable, ob- stacles in its negotiations, had the bonds upon their face in unmistak- able terms declared that the purchas- er had no security beyond the as- sessments upon the particular prop- erty improved. If the corporate au- thorities intended such to be the contract with the holders of the bonds, the same good faith which underlies and prevades the statute of March 2, 1871, required an ex- plicit avowal of such purpose in the bond itself, or, in some other form, by language brought home to the purchaser which could neither mis- lead nor be misunderstood." Wood- bridge v. City of Duluth, 57 Minn. 256; Austin v. City of Seattle, 2 Wash. St. 667; Bank of British Co- lumbia v. City of Port Townsend, 16 Wash. 450; Fowler v. City of Su- perior, 85 Wis. 411. 56* Johnson v. Stark County, 24 111. 75; Sherlock v. Village of Win- netka, 68 111. 530; Evansville, I. & C. Straight Line R. Co. v. City of Ev- ansville, 15 Ind. 395; Skinker v. But- 218 ISSUANCE OF SECURITIES. 503 for elsewhere. 665 Where no such agreement is made, the corpo- ration cannot be compelled to pay either the principal or interest of bonds at other than the regular office provided for the making ef disbursements. 586 The payment of bonds when their validity is established is obligatory upon the corporation and its officers and where discretionary powers are not vested in the officials, either as to the time or manner of payment, if there are revenues which can be devoted to the purpose, such officials cannot refuse payment. Mandamus will lie against them in case of refusal to enforce the performance of duties imposed upon them by law. 59T 218. Time of payment. The time of payment is fixed under authority of law specifically determined either by an inspection of the authority itself or in- ter County, 112 Mo. 332; Friend v. City of Pittsburgh, 131 Pa. 305, 6 L. R. A. 636. ses Meyer v. City of Muscatine, 68 U. S. (1 Wall.) 384; Thomson v. Lee County, 70 U. S. (3 Wall.) 327; City of Lexington v. Butler, 81 U. S. (14 Wall.) 282; Lynde v. County of Winnebago, 83 U. S. (16 Wall.) 6; Calhoun County Sup'rs v. Galbraith, 99 U. S. 214; Town of Enfield v. Jor- dan, 119 U. S. 680; City of Cairo v. Zane, 149 U. S. 122; Gray v. State, 72 Ind. 567; Maddox v. Graham, 59 Ky. (2 Mete.) 78; Skinker v. Butler County, 112 Mo. 332. Where the au- thority for the issue of funding bonds is silent as to the place of payment, the power to designate one beyond the limits of the county is implied. City of Vicksburg v. Lombard, 51 Miss. Ill; Kunz v. School Dist. No. 28, 11 S. D. 578; Austin v. Gulf, C. & S. F. R. Co., 45 Tex. 236. see city of Los Angeles v. Teed, 112 Cal. 319; People v. Tazewell County, 22 111. 147; City of Pekin v. Reynolds, 31 111. 529. 567 Gray v. State, 72 Ind. 567. "It is claimed * * * that as the language of the statute is merely permissive, conferring the power and authority upon the officers men- tioned without in terms making it their duty to take up and redeem the bonds, etc., they have a discre- tion to do so or not and that, there- fore, mandamus will not lie against them to compel them to do so. But we are clear in the opinion that there was no such discretion to be exercised by the officers named. It was the intention of the legislature that the bonds should be paid and not that they should be paid or left unpaid at the option of the officers named. This is clearly gathered from the tenor of the entire act. The appropriation of money, and the authority conferred upon the of- ficers named to borrow money for the purpose of the act, tend to repel the idea that the legislature intend- ed to leave it to the option or discre- tion of the officers named, whether to pay the bonds or not." Little River Tp. v. Reno County Com'rs, 65 Kan. 9, 68 Pac. 1105. 504 POWERS. 219 directly by action of public officials where discretionary powers are given to them in this respect ; in either case, the obligation to pay exists at the time of the maturity of the principal of such bonds or the interest, as already stated, at the various times when installments come due in accordance with the tenor of such bonds and coupons. 568 Where the authority expressly designates the maturity of the bond, such a provision must be complied with and the weight of authority is to the effect that bonds issued for a longer or shorter period than thus required by statute are in- valid. 569 The time of maturity may, however, be discretionary with the officials issuing bonds, 570 or the entire issue or any por- tion may be redeemable at the pleasure of the maker. 571 If bonds are not payable before the date of maturity, a holder cannot be compelled to accept payment and surrender them. 572 219. Medium of payment. From the face of the bond is to be determined the medium of its payment and where the authority or the bond is silent as to ees McMullen v. Person, 102 Mich. 608; Town of Pontotoc v. Fulton, 79 Miss. 511, 31 So. 102; Kemp v. Town of Hazlehurst, 80 Miss. 443, 31 So. 908; Ter. v. Hopkins, 9 Okl. 133; City of Memphis v. Memphis Sav. Bank, 99 Tenn. 104, 42 S. W. 16. 569 Norton v. Town of Dyersburg, 127 U. S. 160; Barnum v. Town of Okolona, 148 U. S. 393; City of Alma r. Guaranty Sav. Bank, 60 Fed. 203; Union Pac. R. Co. v. Lincoln County, 3 Dill. 300, Fed. Gas. No. 14,380; Da- vis v. Yuba County, 75 Gal. 452; Mc- Mullen v. Person, 102 Mich. 608; Al- pena County Sup'rs v. Simmons, 104 Mich. 305; McCormick v. Village of West Duluth, 47 Minn. 272; Wood- ruff v. Town of Okolona, 57 Miss. 806; Potter v. Town of Greenwich, 92 N. W. 662; Hoag v. Town of Greenwich, 133 N. Y. 152; People's Bank of St. Paul v. School Dist. No. 52, 3 N. D. 496, 28 L. R. A. 642. But compare Rock Creek Tp. v. Strong, 96 U. S. 271. 570 Chicago, B. & Q. R. Co. v. City of Aurora, 99 111. 205; People's Nat. Bank of Brattleboro v. Ayer, 24 Ind. App. 212; Flagg v. City of Palmyra, 33 Mo. 440; Catron v. 'La Fayette County, 106 Mo. 659; Singer Mfg. Co. v. City of Elizabeth, 42 N. J. Law, 249. 571 Brenham v. German American Bank, 144 U. S. 173; National Bank of Republic v. City of St. Joseph, 31 Fed. 216; Stewart v. Henry County, 66 Fed. 127; Roberts & Co. v. City of Paducah, 95 Fed. 62; Town of Essex v. Day, 52 Conn. 483; Turpin v. Madison County Fiscal Ct., 105 Ky. 226, 48 S. W. 1085; Ter. v. Hep- kins, 9 Okl. 133; Nolan County v. State, 83 Tex. 182. 572 Allentown School Dist. v. Derr, 115 Pa. 439. 220 ISSUANCE OF SECURITIES. 505 this, a promise to pay in legal tender or ' ' gold coin of the United States" does not render bonds invalid. 573 220. To whom payable. Negotiable bonds in common with other instruments of a like character are usually made payable to bearer or order with pro- visions for endorsement in blank and registration. When pay- able to bearer or endorsed in blank by the one to whom orig- inally payable, such bonds are payable to bearer and the holder is entitled to payment. 574 Where provision is made for registra- tion when registered in the required manner and by the proper officials, they then become payable only to the party in whose name they stand upon the registration books of the trustee or GTS Woodruff v. State of Mississip- socket Inst. for Savings (C. C. A.) pi, 162 U. S. 291; Moore v. City of 58 Fed. 935; Ashley v. Presque Isle Walla Walla, 60 Fed. 961; Pollard County Sup'rs (C. C. A.) 60 Fed. 65; v. City of Pleasant Hill, 3 Dill. 197, West Plains Tp. v. Sage, 60 Fed. Fed. Gas. No. 11,253; Judson v. City 943; Pacific Imp. Co. v. City of of Bessemer, 87 Ala. 240, 4 L. R. A. Clarksdale (C. C. A.) 74 Fed. 528. 742; Lane v. Gluckauf, 28 Cal. 288, A bond negotiable in form, when 87 Am. Dec. 121; Murphy v. City of not so authorized, is not void but San Luis Obispo, 119 Cal. 624, 39 simply nonnegotiable. L. R. A. 444; Atkinson v. Lanier, 69 D'Esterre v. City of Brooklyn, 90 Ga. 460; Heilbron v. City of Cuth- Fed. 586; Edwards v. Bates County bert, 96 Ga. 312; Churchman v. Mar- (C. C. A.) 99 Fed. 905; Evans v. tin, 54 Ind. 380; Farson v. Sinking Cleveland & P. R. Co., 21 Leg. Int. Fund Com'rs of Louisville, 97 Ky. 29, Fed. Gas. No. 4,557; Carpenter 119; Opinion of the Court, 49 Mo. v. Greene County, 130 Ala. 613, 29 216; Bond of Greenwald, 51 Tenn. So. 194; Blackman v. Lehman, 63 (4 Heisk.) 453; Winston v. City of Ala. 547. Under Ala. Code, 2098, Ft. Worth (Tex. Civ. App.) 47 S. W. the legal title to municipal bonds 740; Kenyon v. City of Spokane, 17 payable to bearer passes only by in- Wash. 57. But see Skinner v. City dorsement. of Santa Rosa, 107 Cal. 464, 29 L. Clapp v. Cedar County, 5 Iowa, R. A. 512. 15; Sioux City r. Weare, 59 Iowa, 574Amey v. Allegheny City, 24 95; School Dist. No. 40 v. Gushing, How. (U. S.) 364; Strong v. District 8 Kan. App. 728; Town of Lexington of Columbia, 4 Mackey (D. C.) 242; v. Union Nat. Bank, 75 Miss. 1; Calhoun County Sup'rs v. Galbraith, Manhattan Sav. Inst. v. Town of 99 U. S. 214; City of Ottawa v. First East Chester, 44 Hun (N. YJ 537; Nat. Bank of Portsmouth, 105 U. S. Com. v. Allegheny County Com'rs, 342; Carter County v. Sinton, 120 U. 37 Pa. 237; City of Austin v. Nalle, S. 517; City of Cadillac v. Woon- 85 Tex. 520. 506 POWERS. 220 municipality. ST8 But a provision for registration does not pre- vent the holder of unregistered bonds from recovering interest. 37 * The fact that a railroad corporation to whom aid bonds are orig- inally voted may become consolidated with another corporation does not usually release the public corporation issuing such bonds from its obligations and this is especially true where there is a statutory authority permitting the consolidation of railroad cor- porations at the time of the issue of such bonds. It has been held that such statutory authority must be considered as a "silent factor" in determining the legal rights of the parties to such a transaction. The bonds then become payable to the consolidated company instead of that company to whom the aid was originally granted. 577 BTS Chapman v. City Council of Charleston, 30 S. C. 549, 3 L. R. A. 311. See, also, Id., 28 S. C. 373, 13 Am. St. Rep. 681. a st. Louis County Com'rs v. Net- tleton, 22 Minn. 356. In this case the statute allowed the payment of interest but the point was made that interest could not be paid even un- der this statute on unregistered bonds because it provided that "All bonds heretofore issued and still un- paid shall be registered by the hold- er thereof." The court said: "Al- though the language is in form im- perative when we consider that con- struing it strictly would render the act of doubtful validity we think it was not intended to require a reg- istration of the bonds as a condition of the holder's right to demand the interest but was intended only for the convenience of those bondhold- ers who may choose to avail them- selves of it and consequently that it was not intended to take from the county commissioners the authority to provide for paying the interest on bonds not registered. The commis- sioners still provide for raising, by tax, the amount required to pay all the interest on the county debt, the county treasurer pays to the state treasurer the amount which has been certified by the state auditor to the county auditor, and the balance remains in the county treasury to pay the interest according to the terms of the bonds or contracts un- der which the debts exist. The levy of the $12,000 for railroad bond in- terest was valid and the court be- low will sustain the same." 577 Pope v. Lake County Com'rs, 51 Fed. 769. "Any person or corpora- tion subscribing for stock in a rail- road company in aid of its construc- tion does so with the knowledge that such company may become merged into a new consolidated railroad cor- poration. It must be held to have been in the contemplation of such subscriber that such a consolidation might occur. The law enters as si- lent factor into every contract. The subscriber by his contract, impliedly anthorizes the railroad company for whose stock he has subscribed to consolidate with any other railroad company. He is not thereby released from liability, but with his implied consent he is brought into the same 221 ISSUANCE OF SECURITIES. 507 The holder of negotiable bonds, however, takes them subject to all conditions which may affect their validity arising either from lack of authority or irregularity in the manner of their issue. 578 221. The payment of interest. A public corporation, like an individual, is liable for the in- terest upon an indebtedness unless, by the terms of the instru- ment evidencing such debt, it is relieved from its payment. The time, the manner and the medium of payment are usually pro- vided for in the bond or the coupon which is a separate and ex- press promise to pay one of the equal installments of interest due upon the principal of a debt. 579 contractual relations with the con- solidated company which he occu- pied with the company for whose stock he subscribed." sis Otis v. Cullum, 92 U. S. 447. Hughson v. Crane, 115 Cal. 404. "If the benefits received and enjoyed by the district under his performance of the contract give him an equitable right of recovery therefor, such right is independent of any liability of the district upon the bonds. If the bonds were issued to him in viola- tion of the statute, they cannot in his hands be valid obligations against the district even though they were taken in payment for his work. The law is well settled that ene dealing with a municipal cor- poration is charged with a knowl- edge of all the limitations upon the power of its officers and that he can have no right of action upon its written obligation if it was entered into in disregard of statutory re- quirements." 579 Respublica v. Mitchell, 2 Ball. (Pa.) 101; State of Louisiana v. Pilsbury, 105 U. S. 278; State v. Thompson, 10 Ark. 61; Bates v. Gerber, 82 Cal. 550; Davis v. City of Sacramento, 82 Cal. 562; Kendall v. Porter, 120 Cal. 106, 45 Pac. 333, 52 Pac. 143; Ellis v. Witmer, 134 Cal. 249, 66 Pac. 301; St. Louis County Com'rs v. Nettleton, 22 Minn. 356; Coler v. Santa Fe County Com'rs, 6 N. M. 88, 27 Pac. 619; Mall v. City of Portland, 35 Or. 89, 56 Pac. 654. Bassett v. City of El Paso, 88 Tex. 168, 30 S. W. 893. A city or- dinance authorizing the issue of bonds and providing for the pay- ment of interest and principal is a part of the contract between the holder of the bonds and the munici- pality. State v. Rathbun, 22 Wash. 651. But the following cases hold that in the absence of express con- tract or the statutory direction, a public corporation is under no obli- gation to pay interest upon the prin- cipal or interest of a debt after its maturity. Town of Mt. Morris v. Williams, 38 111. App. 401, following City of Pekin v. Reynolds, 31 111. 529. Also, City of Chicago v. Eng- lish, 80 111. App. 163. Sinking Fund Com'rs of Louisville v. Zimmerman, 101 Ky. 432, 41 S. W. 428; State v. Mayes, 28 Miss. 706. "As a general rule the state is not 508 POWERS. 722 The obligation to pay interest becomes as full and complete an obligation as that of meeting the principal when it becomes due. The usual and, generally, the only source of revenue of a public corporation is by the levying and collection of taxes. If consti- tutional or statutory provisions do not prevent, the corporation must levy a tax sufficient to meet the interest upon its indebted- ness. This is a duty which, it has been held, is mandatory in its character and the performance of which, and on the part of the public officials, can be compelled by writ of mandamus. 580 The levying of taxes where an obligation exists is not consid- ered discretionary on the part of the corporation when within statutory or constitutional limitations. So far as the means of payment is concerned, the courts will not consent to a willful or dishonest repudiation of legal or moral obligations and a failure on the part of public officials to provide for the payment of either principal or interest of a debt is no defense in an" action brought by bondholders to enforce such obligation. The corporation cannot be released from its liabilities by a failure to provide a means of payment when such is within its power. 581 222. The rule as to the payment of void bonds. When bonds are held void, either for want of authority or other reasons, it may release the public corporation from the obligation to pay according to their terms. It does not, how- ever, always relieve it from its obligation to pay the debt which may arise through the transaction. The authorities are quite unanimous in holding that where bonds have been issued, sold and the proceeds arising from such sales appropriated by the bound to pay interest." Attorney- Sup'rs v. United States, 71 U. S. (4 General v. Cape Fear Nav. Co., 37 Wall.) 435; and Riggs v. Johnson N. C. (2 Ired. Eq.) 444; Milne v. County, 73 U. S. (6 Wall.) 166. Rempublicam, 3 Yeates (Pa.) 102; ssi Knox County v. Aspinwall, 21 Auditorial Board v. Aries, 15 Tex. How. (U. S.) 539; New York Life 72. Ins. Co. v. Cuyahoga County Com'rs, Gsosibley v. City of Mobile, 3 106 Fed. 123; Reis v. State, 133 Cal. Woods, 535, Fed. Gas. No. 12,829; 593, 65 Pac. 1102, reversing 59 Pac. Flagg v. City of Palmyra, 33 Mo. 298; Moore v. City of New Orleans, 440; St. Joseph & D. C. R. Co. v. 32 La. Ann. 726; State v. City of Buchanan County Ct, 39 Mo. 485. New Orleans, 32 La. Ann. 763; Mor- See, also, City of Memphis v. Brown, rill v. Smith County (Tex. Civ. 97 U. S. 300; Rock Island County App.) 33 S. W. 899. 222 ISSUANCE OF SECURITIES. 509 public corporation to its proper purposes, there exists a debt or obligation due and owing from the corporation to the party advancing moneys which can be enforced generally in an action on a quantum meruit or valebant for moneys or goods had and received. 582 582 Marsh v. Fulton County, 77 U. S. (10 Wall.) 676. "The obligation to do justice rests upon all persons, natural and artificial and if a coun- ty obtains the money or property of others without authority, the law, in- dependent of any statute, will com- pel restitution or compensation." In City of Louisiana v. Wood, 102 U. ( S. 294, Waite, C. J., said: "It would certainly be wrong to permit the city to repudiate the bonds and keep the money borrowed on their credit. The city could lawfully bor- row. The objection goes only to the way it was done. * * * While therefore, the bonds cannot be en- forced because defectively executed, the money paid for them may be re- covered back." Read v. City of Plattsmouth, 107 U. S. 568. A purchaser of bonds for full value without notice of any in- formality in their issue, to whom the city paid the interest thereon for four years, brought suit to recover the amount of the coupons then due and unpaid. The money was used to erect a schoolhouse. The court said: "As the City of Plattsmouth was bound, by force of the transaction to repay the purchaser of its void bonds the consideration received and used by it, or a legal equivalent the statute which recognized the exist- ence of that obligation and by con- firming the bonds themselves, pro- vided a medium for enforcing it ac- cording to the original intention and promise cannot be said to be a spe- cial act conferring upon the city any new corporate power." Gause v. City of Clarksville, 1 Fed. 353; Deyo v. Otoe County, 37 Fed. 246; Bangor Sav. Bank v. City of Stillwater, 49 Fed. 721; Jefferson County v. Hawkins, 23 Fla. 223, 2 So. 362. A legal debt cannot be paid by the issue and delivery of a void bond. Brown v. City of Atchison, 39 Kan. 37. "Where a contract is en- tered into in good faith between a corporation, public or private, and an individual person, and the con- tract is void, in whole or in part, because of a want of power on the part of the corporation to make it or to enter into it in the manner in which the corporation enters into it, but the contract is not immoral, in- equitable, or unjust, and the con- tract is performed in whole or in part by and on the part of one of the parties, and the other party re- ceives benefits by reason of such performance over and above any equivalent rendered in return, and these benefits are such as one party may lawfully render and the other party lawfully receive, the party re- ceiving such benefits will be required to do equity towards the other party by either rescinding the contract and placing the other party in statu quo, or by accounting to the other party for all benefits received, for which no equivalent has been ren- dered in return; and all this should be done as nearly in accordance with 310 POWERS. 223 223. Payment of securities through provisions for a sinking fund. The charter, statutes or constitution may provide that before a public corporation can incur an indebtedness either through an issue of negotiable bonds or otherwise, it must provide for ultimate payment of the principal by the creation of a sinking fund, so termed. This fund to be raised by imposing a certain annual tax, either general in its character or falling upon specific property, the accumulations of which, it is calculated, will at the time the indebtedness falls due be sufficient to meet it. 583 Such provisions, however, are usually held mandatory in the terms of the contract as the law and equity will permit." State v. Hart, 46 La. Ann. 54; People v. Porter & Calvin Tp., 18 Mich. 101; State v. Dickerman, 16 Mont. 278, 40 Pac. 698; Town of Lyons v. Chamberlin, 25 Hun (N. Y.) 49; City of Plattsmouth v. Fitzger- ald, 10 Neb. 401; Hoag v. Town of Greenwich, 133 N. Y. 152. Commis- sioners issued bonds payable in twenty years instead of thirty years as required by the statute; it was held that the bonds were void as euch, but as the commissioners had the authority to borrow the money which the bonds were meant to se- cure, they, by doing so, bound the town to repay it; and it appearing that the parties, both borrower and lender, acted in good faith and with the intention to comply with the statute, a provision on the part of the town to repay the loan at the time and in the manner prescribed by the statute would be implied and an action thereon against the town was maintainable. Borough of Rainsburg v. Fyan, 127 Pa. 74, 4 L. R. A. 336; Livingston v. School Dist. No. 7, 11 S. D. 150, 76 N. W. 301; Paul v. City of Kenosha, 22 Wis. 266; Citizens' Bank v. City of Ter- rell, 78 Tex. 456, 14 S. W. 1003. But see City of Litchfield v. Ballou, 114 U. S. 190; Norton v. Town of Dyers- burg, 127 U. S. 160; Morton v. City of Nevada, 41 Fed. 582; McPhersoa v. Foster Bros., 43 Iowa, 48; Town of Milan v. Tennesee Cent. R. Co., 79 Tenn. 329. sss Siebert v. Lewis, 122 U. S. 284; Fazende v. City of Houston, 34 Fed. 94. A municipal corporation under an ordinance authorized by their charter, issued bonds to provide a fund for building a market house. By their terms the revenue of the market was to be devoted to the pay- ment of the interest on the bonds and to the formation of a sinking fund to redeem them. As the ordi- nance was authorized by the charter and therefore valid, it constituted a contract between the holders of the bonds and the city and subse- quent ordinances making other dis- position of the market revenue were void and so much of a charter grant- ed the city after the issue of the bonds as authorized the city council to divert any of such revenue from the special fund created in the ordi- nance under which the bonds were issued was inoperative, as impairing the obligation of a contract in viola- 223 ISSUANCE OF SECURITIES. 511 their character in so far as the levying of the sinking fund tax depends upon the independent action of subordinate officials from time to time. Bonds issued under such provisions, legal at the time of issue, cannot be rendered void or become worthless by the neglect of a public duty devolving upon officials of public corporations. 884 tion of the constitution. Quaker City Nat. Bank v. Nolan County, 59 Fed. 660. County bonds are invalid, even in the hands of bona fide pur- chasers, when issued without a com- pliance with a constitutional re- quirement that provision shall be made, at the time of incurring any debt for levying a sufficient tax to create a sinking fund of two per cent in addition to meeting the in- terest. Affirmed in (C. C. A.) 66 Fed. 883; Millsaps v. City of Terrell, 60 Fed. 193; Lee County v. Robert- son, 66 Ark. 82, 48 S. W. 901. Mon- eys raised through the imposition of taxes provided for the payment of interest cannot be appropriated for general purposes. Kendall v. Por- ter, 120 Cal. 106, 45 Pac. 333, 52 Pac. 143; Wilkins v. City of Waynesboro, 116 Ga. 359, 42 S. E. 767; Sinking Fund Com'rs of Louisville v. Zim- merman, 10 Ky. L. R. 689, 41 S. W. 428; O'Bryan v. City of Owensboro, 24 Ky. L. R. 469, 68 S. W. 858; Wil- son v. City of Shreveport, 29 La. Ann. 673; Knox v. City of Baton Roug*, 36 La. Ann. 427; Kelly v. City of Minneapolis, 63 Minn. 125, 30 L. R. A. 281; Baily v. City of Philadelphia, 184 Pa. 594; Galbreath v. City of Knoxville (Tenn.) 59 S. W. 178; Basset County v. City of El Paso, 88 Tex. 168, 30 S. W. 893; Conklin v. City of El Paso (Tex. Civ. App.) 44 S. W. 879. See, however, National Life Ins. Co. v. Board of Education of Huron, 62 Fed. 778; Marion County v. Coler, 67 Fed. 60; and Basset v. City of El Paso (Tex. Civ. App.) 28 S. W. 554, holding bonds valid though issued without a provision for the constitutional sinking fund or annual tax. The states of California, Idaho, Il- linois, Kentucky, Missouri, New York, Pennsylvania, South Dakota, Texas and West Virginia have con- stitutional provisions requiring eith- er the creation of a sinking fund or the levying of an annual tax for the payment of the principal and inter- est of the bonds as it falls due. In Wade v. Travis County, 174 U. S. 499, the court in sustaining the val- idity of bonds held that in determin- ing what laws of a state will be re- garded as rules of decision, that it would look not only to its constitu- tions and statutes but at the decisions of its highest court giving construc- tion to them and that if there was any inconsistency in the opinion of such highest court, the decisions of the United States supreme court would follow the latest settled adju- dications in preference to earlier ones unless such earlier decisions sustained the validity of bonds while the later ones declared them invalid, in which case the earlier decisions would be followed. The supreme court announced its readiness to fol- low that line of decisions sustaining the validity of bonds irrespective of the time rendered. ss* Wade v. Travis County, 174 U. S. 499, reversing Wade v. Travis County, 72 Fed. 985; Wade v. Travig 512 POWERS. 223 The duty to levy a sinking fund tax or a general tax for the payment of bonds may be compelled by the proper writ directed against designated public officials. 585 A provision for the estab- lishment and maintenance of a sinking fund is a contract between the bondholder as creditor and the public corporation, and one which cannot be impaired or destroyed by subsequent legislation or action ; it is a contract within the meaning of the Federal con- stitution. 586 County (C. C. A.) 81 Fed. 742; Mari- on County v. Coler, 67 Fed. 70. Rowland v. San Joaquin County Sup'rs, 109 Cal. 152; City of Houston v. Voorhies, 70 Tex. 356, 8 S. W. 109; Howard v. Smith, 91 Tex. 8, 38 S. W. 15. Upon a failure to provide the sinking fund as required by the constitution of Texas at the time of the issue of bonds or the making of a contract, such bonds or contract will be void. This ruling, however, was reversed by the supreme court of the United States in the case of Wade v. Travis County, cited above, where the same question was raised. See, also, Nalle v. City of Austin (Tex. Civ. App.) 42 S. W. 780; Mitchell County v. City Nat. Bank, 91 Tex. 361. ess Von Hoffman v. City of Quincy, 71 U. S. (4 Wall.) 535; City of Ga- lena v. Amy, 72 U. S. (5 Wall.) 705; Cape Girardeau County Ct. v. Hill, 118 U. S. 68; Kennedy v. City of Sacramento, 19 Fed. 580. But in United States v. Macon County, 99 U. S. 582, Chief Justice Waite said: "We have no power by mandamus to compel a municipal corporation to levy a tax which the law does not authorize. We cannot create new rights or confer new powers. * * * In this case it appears that the spe- cial tax of one-twentieth of one per cent has been regularly levied, col- lected and applied, and no complaint is made as to the levy of one half of one per cent for general purposes. What is wanted is the levy beyond these amounts, and that, we think, under existing laws, we have no power to order." United States v. Macon County Ct., 35 Fed. 483; Haumeister v. Por- ter (Cal.) 16 Pac. 187, following Bates v. Porter, 74 Cal. 224, 15 Pac. 732. Dillon, Mun. Corp. 855. "The proper mode of enforcing or com- pelling the performance of the duty of levying and collecting taxes in such cases is by mandamus and not by a bill in equity." Walkley v. City of Muscatine, 73 U. S. (6 Wall.) 481; Rees v. City of Watertown, 86 U. S. (19 Wall.) 107. Federal courts have no power to issue a writ of mandamus as an orig- inal proceeding, a bondholder should first obtain judgment. Bath County v. Amy, 80 U. S. (13 Wall.) 244; Heine v. Carroll-Madison Levee Com'rs, 86 U. S. (19 Wall.) 655; Greene County v. Daniel, 102 U. S. 187; Osborne v. Adams County Com'rs, 7 Fed. 441. Though in most of the state courts a prior judgment is not always held necessary in or- der to obtain a mandamus. Riley v. Garfield Tp., 54 Kan. 463; Flagg v. City of Palmyra, 33 Mo. 440; Com. v. Select & Common Councils of Pittsburgh, 34 Pa. 496. sse Von Hoffman v. City of Quincy, 71 U. S. (4 Wall.) 535. The court in 224 ISSUANCE OF SECURITIES. 513 224. The duty to levy taxes for the payment of interest or principal of negotiable bonds. In a preceding section 587 the statement has been made that upon the creation of a valid obligation, there arises the moral and legal duty on the part of a public corporation to levy taxes or make other provisions for the payment of such obligation. The authority granted the corporation, so it is held, to issue interest- bearing negotiable bonds, carries with it the implied power to levy taxes to pay principal and interest. 688 The power may be expressly given, but if not, it is held to exist as an implied one and of such a character as to constitute a contract between the bondholder and the corporation which cannot be affected or de- stroyed until the contract is satisfied. 589 A public corporation its opinion in this case in part said: "It is equally clear that where a state has authorized a municipal cor- poration to contract and to exercise the power of local taxation to the extent necessary to meet its engage- ments, the power thus given cannot be withdrawn until the contract is satisfied. The state and the corpo- ration in such cases are equally bound. The power given becomes a trust which the donor cannot annul, and which the donee is bound to execute; and neither the state nor the corporation can any more im- pair the obligation of the contract in this way than in any other." Citing, People v. Bond, 10 Cal. 570. Dominick v. Sayre, 5 N. Y. Super. Ct. (3 Sandf.) 555; Maenhaut v. City of New Orleans, 3 Woods, 1, Fed. Gas. No. 8,940; People v. Du- bois, 19 111. 222. State v. Cardozo, 8 S. C. (8 Rich.) 71. A pledge of receipts from spe- cified sources to the payment of the principal and interest of certain bonds made at the time of their is- sue becomes a part of the contract with the holders of such bonds and the city has no right under art. 1, Abb. Corp. 33. 10, of the constitution of the Unit- ed States to impair the obligation of a contract by devoting this fund to other purposes. See, also, author- ities cited, 217. 587 Section 221. ess Citizens' Sav. & Loan Ass'n v. City of Topeka, 87 U. S. (20 Wall.) 655; Rails County Ct. v. United States, 105 U. S. 733; United States v. North Carolina, 136 U. S. 211. But there exists no implied liabili- ty on the part of a city to pay inter- est on its bonds after maturity. Sib- ley r. City of Mobile, 4 Am. Law. T. Rep. (N. S.) 226, Fed. Gas. No. 12,829; Young v. Tipton County Com'rs, 137 Ind. 323, 36 N. E. 1118; State v. Macon County Ct., 68 Mo. 29. A purchaser of bonds is, howev- er, chargeable with knowledge of the limitation in the statutes under the authority of which they are is- sued in regard to the rate of taxa- tion which may be imposed for their payment. This provision is regard- ed as a part of the contract between himself and the county. Com. v. Allegheny County Com'rs, 32 Pa. 218. 689 Von Hoffman v. City of Quincy, 514 POWERS. 224 may be compelled by mandamus to levy the necessary taxes for the payment of either interest or principal notwithstanding the fact that the legislature of the state may have assumed or at- tempted to repeal the authority to levy such taxes. 590 A bond by its terms made payable from a fund raised in a specific manner or from taxes levied upon specific property and not so phrased as to constitute a general obligation of the public corporation issuing it is payable only from such fund or taxes. The obliga- tion exists only to pay the net proceeds of such taxes or the amount which may be available in such fund. 691 If negotiable bonds are phrased as general obligations of a municipality, although they may contain provisions for their pay- ment from a special fund or tax upon specific property as in the case of "local improvement bonds," the authorities are quite uniform in holding that upon the exhaustion of such special fund or tax levy, the general revenues of the corporation can be drawn upon to meet the obligation. 592 The promise to pay is the pri- mary contract; the obligation on the part of the municipality to raise a special fund or levy special taxes is a separate and inde- pendent one, the failure to perform which does not or cannot affect the validity of negotiable bonds. These rules, however, may not apply where the bond lacks some or all of the requisites of negotiable paper, being uncertain as to the time of payment of either principal or interest. 593 71 U. S. (4 Wall.) 535; Buck v. Peo- City of Altoona, 200 Pa. 15, 49 Atl. pie, 78 111. 560. 367. "Even when a special tax is 690 Von Hoffman v. City of Quincy, provided, the holder is not limited 71 U. S. (4 Wall.) 535; Hicks v. to such a tax, unless it is provided Cleveland, 106 Fed. 459; Bates v. they shall not be paid in any other Gregory (Cal.) 22 Pac. 683. manner. Such bonds are the debts RSI Braun v. Benton County of the corporation and after the ap- Com'rs, 66 Fed. 476; State v. Tram- plication of the proceeds of a special mel, 106 Mo. 510; McCless v. Meek- levy the holder is entitled to have Ins, 117 N. C. 34; Baker v. Meacham, the balance paid out of the general 18 Wash. 319. See, also, 217. funds of the corporation." Simon- "2 United States v. Knox County, ton, Mun. Bonds, 134; United 51 Fed. 880, following United States States v. Clark County, 96 U. S. 211; r. Clark County, 96 U. S. 211; United Avery v. Job, 25 Or. 512, 36 Pac. States v. Macon County, 99 U. S. 293. 582; and Knux County Ct. v. United 3 Washington County y. Wil- States, 109 U. S. 229; Vickrey v. liams, 111 Fed. 801. Sioux City, 115 Fed. 437; Gable v. 225 ISSUANCE OF SECURITIES. 515 225. Rights of a holder to maintain an action. The bona fide holder of negotiable bonds has the right to main- tain an action against a corporation issuing them upon its failure to comply with the terms of the contract they contain. This right is not affected by a failure of corporate officials to perform their duties. The obligation on the part of the public corpora- tion exists independent of the performance of official duties by its agents from time to time 594 even if the bonds in question are those known as ''local improvement" bonds payable from a spe- cial fund or the proceeds of special taxes or assessments. Such fact does not prevent the holder from maintaining an action at law to enforce collection. 595 The statute of limitations, however, may be pleaded as a defense in an action either on the principal of a municipal bond or a coupon separate or attached. 596 If the bonds in question are of an issue partly void as in ex- cess of legal authority, the right of a holder to collect will de- pend upon the policy of the state which may be either that the excess should be held entirely void or that it should be distrib- uted among the holders of the entire issue. This question of authority has been considered in a preceding section. 591 591 Robertson v. Elaine County, 85 as between a municipality issuing Fed. 735. The statute of limitations local improvement bonds payable may be pleaded as a defense to an from a special fund and the holder action on municipal bonds. Marsh of such bonds. v. Town of Little Valley, 64 N. Y. Mather v. City & County of San 112; Thornburgh v. City of Tyler, 16 Francisco (C. C. A.) 115 Fed. 37. Tex. Civ. App. 439, 43 S. W. 1054. In an action on such bonds it is un- 595 Waite v. City of Santa Cruz, necessary to join as parties defend- 75 Fed. 967; Shepard v. Tulare Irr. ant with the maker of the bonds Dist., 94 Fed. 1; Washington County the owners of property upon which v. Williams, 111 Fed. 801. Under taxes for their payment are to be such circumstances, however, the levied. Hammond v. Place, 116 plaintiff is limited in his right of re- Mich. 628, 74 N. W. 1002; Murdock covery to the amount under the v. Aikin, 29 Barb. (N. Y.) 59. terms of the contract. ooe Clark v. Iowa City, 87 U. S. Farson v. Sioux City, 106 Fed. (20 Wall.) 583; Amy v. City of Du- 278. A court of equity may require buque, 98 U. S. 470; Underbill y. an accounting and an enforcement Trustees of Sonora, 17 Gal. 172. of the trust which, it is held, exists 597 See 203. 516 POWERS. 226 V. WABBANTS AND MISCELLANEOUS EVIDENCE OF INDEBTEDNESS. 226. Warrants; definition; by whom drawn. A public corporation may incur an indebtedness which, either at the time of its incurrment or upon the making of an appro- priation for its payment, may be evidenced by an obligation or written promise to pay, commonly called a warrant. This is an instrument in writing executed by the proper officials acknowl- edging the indebtedness and directing the officials in charge of the fund from which it is payable to pay the same on demand or at some specified date. 688 The power to issue in anticipation of revenues for the necessary corporate expenses is usually im- plied ; 599 this is not so when issued in anticipation of taxes levied but uncollected and where they are of such a character as to be considered under such circumstances, a "debt" or "indebt- 698 City Council of Nashville v. Ray, 86 U. S. (19 Wall.) 468; City of Little Rock v. United States (C. C. A.) 103 Fed. 418; City of Spring- field v. Edwards, 84 111. 626; Law v. People, 87 111. 385; Shawnee County Com'rs v. Carter, 2 Kan. 109 ; Burrton v. Harvey County Sav. Bank, 28 Kan. 390. Cities of the third class may anticipate the revenues of the year, and in payment of a debt, whether antecedent or one present- ly contracted, issue time warrants, payable at such time during the current year as the revenues may reasonably be expected to be col- lected. City of Alpena v. Kelley, 97 Mich. 550; Warren County Sup'rs v. Klein, 51 Miss. 807; Aull Sav. Bank v. City of Lexington, 74 Mo. 104; Slingerland v. City of Newark, 54 N. J. Law, 62 ; State v. Parkinson, 5 Nev. 15; City of Terrell v. Des- saint, 71 Tex. 770; Daggett v, Lynch, 18 Utah, 49. But there is an implied power to issue interest-bearing war- rants. Ivinson v. Hance, 1 Wyo. 270. The grant of authority to make a contract, it has been held, carries with it the implied power to issue warrants or orders in payment of the obligations of the contract. See the following cases: Kearney Coun- ty Com'rs v. McMaster (C. C. A.) 68 Fed. 177; Speer v. Kearney Coun- ty Com'rs (C. C. A.) 88 Fed. '749; Allen v. Town of Lafayette, 89 Ala. 641, 9 L. R. A. 497; Heal v. Jeffer- son Tp., 15 Ind. 431; Clayton v. McWilliams, 49 Miss. 311; and San Patricio County v. McClane, 58 Tex. 243. 599 Thomas v. City of Richmond, 79 U. S. (12 Wall.) 349; Brown v. Sherman County Com'rs, 5 Fed. 274; Bangor Sav. Bank v. City of Still- water, 46 Fed. 899; Allen v. Town of La Fayette, 89 Ala. 641, 9 L. R. A. 497; Lindsey v. Rottaken, 32 Ark. 619; Cothran v. City of Rome, 77 Ga. 582; Fuller v. City of Chicago, 89 111. 282; Fuller v. Heath, 89 111. 296; Dively v. City of Cedar Falls, 21 Iowa, 565; Long v. Boone County, 32 Iowa, 181; Hooper v. Ely, 46 Mo. 505; Cheeney v. Inhabitants of Broofcfield, 60 Mo. 53. 226 WARRANTS, ETC. 517 edness." The issue of warrants is the method by which the or- dinary and current expenses of a public corporation are paid from current revenues; funds for their payment are usually im- mediately available; they are commonly drawn in pursuance of direct charter or statutory authority that may or may not specify the required details preliminary to their issue. Without such charter or statutory provisions, it is clear that public officials have no power to bind their principal in this respect. 600 Public corporations exercise their powers by and through agents of limited or special authority authorized to act for and on their behalf only concerning those matters which by some express provision of the law may be given to them to transact. That a warrant be valid, it is necessary then that it shall be is- sued or drawn by the proper official, 601 and authorized, audited eoo People v. El Dorado County Sup'rs, 11 Cal. 170; Stratton v. Green, 45 Cal. 149; People v. Canty, 55 111. 33; Home v. Mehler, 23 Ky. L. R. 1176, 64 S. W. 918; Flagg r. Parish of St. Charles, 27 La. Ann. 319; Hooper v. Ely, 46 Mo. 505. A county warrant cannot be issued to reimburse sureties for moneys ex- pended by them in bringing back a defaulting and absconding county treasurer. Aull Sav. Bank \. City of Lexington, 74 Mo. 104. 6oi Kearney County Com'rs v. Mc- Master (C. C. A.) 68 Fed. 177; Con- nor v. Morris, 23 Cal. 447. The au- ditor of the county is the mere clerk of the board of supervisors; and he has no power or authority to draw his warrant on the county treasurer for the payment of a claim unless the board of supervisors have made an express order that it be paid. Stoddard v. Benton, 6 Colo. 508; Clark v. City of Des Moines, 19 Iowa, 199; Clark v. Polk County, 19 Iowa, 248; Tippecanoe County om'rs r. Cox, 6 Ind. 402; Leaven- worth County Com'rs v. Keller, 6 Kan. 510; Alberts v. Torrent, 98 Mich. 512; Bailey v. City of Phila- delphia, 167 Pa. 569 ; Dennis v. Table Mountain Water Co., 10 Cal. 369; Newgass v. City of New Orleans, 42 La. Ann. 163; Hull v. Inhab- itants of Berkshire, 26 Mass. (9 Pick.) 553; Saline County v. Wil- son, 61 Mo. 237; State v. Collins, 21 Mont. 448, 53 Pac. 1114; Oakley v. Valley County, 40 Neb. 900, fol- lowing Walsh v. Rogers, 15 Neb. 309; Halstead v. City of New York, 5 Barb. (N. Y.) 218; Bailey v. City of Philadelphia, 167 Pa. 569; Mer- chants' Nat. Bank v. McKinney, 2 S. D. 106, 48 N. W. 841. To sustain the validity of warrants drawn un- der the authority of law, it is not necessary that they shall be signed by officials de jure; if they are de facto merely, it Is sufficient. Steph- ens v. City of Spokane, 11 Wash. 41, 39 Pac. 266; Ivinson v. Hance, 1 Wyo. 270; Hubbard v. Town of Lyn- don, 28 Wis. 675. Hainer, Mun. Secur., 356. "The duties and powers of officers of the municipal corporation are prescribed by statute and every person deal- ing with them as such may know 518 POWERS. 226 or allowed by that corporate body or official to whom is delegated by law this particular duty. 602 This authority may be granted to some special official to whom discretionary powers are given to pass upon the legality of the claim or indebtedness to liquidate which the warrant is drawn or upon the sufficiency of the war- rant itself In such a case, the duties performed by him are quasi judicial in their character, subject to the usual rules of law which govern and control the performance of duties of that nature. 603 The law, however, may impose upon such officials the minis- terial duty merely of drawing the warrant upon the presentation to them of a claim or charge audited or allowed by certain desig- nated officers. Here the duty is obligatory and the official is given no discretionary powers in the matter ; it may then become his duty to draw such warrant even without request of the party in whose favor it is to be issued. 604 If he neglect or refuse to and is charged with a knowledge of the nature of these duties and the extent of these powers; and the want of corporate power or the want of authority in municipal of- ficers cannot be supplied by their unauthorized action or representa- tion." eoa people v. Fogg, 11 Cal. 351; State v. Atkinson, 25 Wash. 283, 65 Pac. 531; Clark County Sup'rs v. Lawrence, 63 111. 32; Clark v. City of Des Moines, 19 Iowa, 199; Polk County v. Sherman, 99 Iowa, 60, 68 N. W. 562; Capmartin v. Police Jury, 19 La, Ann. 448; Saline County v. Wilson, 61 Mo. 237; People v. Booth, 49 Barb. (N. Y.) 31; People v. Roberts, 45 App. Div. 145, 61 N. Y. Supp. 148; Ex parte Florence Graded School Com'rs, 43 S. C. 11, 20 S. E. 794; Hubbard v. Town of Lyndon, 28 Wis. 674. *>3 Henderson v. People, 17 Colo. 587; Carlile v. Kurd, 3 Colo. App. II, 31 Pac. 952; Ward v. Cook, 78 III. App. Ill; Norman v. Kentucky Board of Managers of World's Co- lumbian Exposition, 14 Ky. L. R. 529, 20 S. W. 901; State v. Hallock, 16 Nev. 373; People v. Wood, 35 Barb. (N. Y.) 653; People v. Booth, 49 Barb. (N. Y.) 31; People v. Green, 56 N. Y. 476; Commercial & Farmers' Bank v. Worth, 117 N. C. 146, 30 L. R. A. 261; Kensington Elec. Co. v. City of Philadelphia, 187 Pa. 446; In re Statehouse Com- mission (R. I.) 33 Atl. 453; State v. Lindsley, 3 Wash. St. 125. o* Wilson v. Neal, 23 Fed. 129; Board of Liquidation of Louisiana v. McComb, 92 U. S. 531; Jefferson- ian Pub. Co. v. Hilliard, 105 Ala. 576; Babcock v. Goodrich, 47 Cal. 488; Sehorn v. Williams, 110 Cal. 621; McMurray v. Hayden, 13 Colo. App. 51, 56 Pac. 206; State v. Buck- les, 39 Ind. 272; Prime v. McCarthy, 92 Iowa, 569, 61 N. W. 220; Alberts v. Torrent, 98 Mich. 512; State v. Kenney, 10 Mont. 496, 26 Pac. 388; State v. Smith, 5 Mo. App. 427. State v. Moore, 40 Neb. 854. 59 N. W. 755, 25 L. R. A. 774. A state auditor has no power to question the validity of an act or to inquire whether a certain amount appropri- 226 WARRANTS, ETC. 519 perform the duty, its performance can be compelled by man- damus directed against him. 605 Where the law specifies the man- ner of allowance and audit of claims preliminary to the drawing ef a warrant for their payment, such provisions are usually con- sidered mandatory in their character, necessary to be followed even to the slightest detail in order that there exist a legal au- thority for the warrant. 608 The reason for this ruling is appar- ent. Unless the law otherwise provides, it is not necessary that there should be funds available for the payment of the war- rant immediately upon its issue. The warrant is simply writ- ten evidence of an acknowledged legal claim against the public corporation; the time of its payment does not affect or de- termine the question of its validity. 607 In some states the mak- ing of an appropriation for the payment of a claim is neces- sary to the issuance of a warrant for that purpose, and then the authorities hold that no matter how just or equitable the claim may be, no obligation rests on the public officials upon whom the duty ordinarily devolves to issue a warrant for the liquidation ated is excessive where the legis- lature has in the proper manner made an appropriation for such pur- pose. Hayes v. Davis, 23 Nev. 318. '46 Pac. 888; People v. Flagg, 16 Barb. (N. Y.) 503; People v. Haws, 36 Barb. (N. Y.) 59; Cunningham v. Mitchell, 67 Pa. 78; Pace v. Ortiz, 72 Tex. 437. 605 Wilson v. Neal, 23 Fed. 129; Keller v. Hyde, 20 Cal. 594; Babcock v. Goodrich, 47 Cal. 488; Ray v. Wilson, 29 Fla. 342, 10 So. 613; Johns v. Orange County Com'rs, 28 Fla. 626. An officer cannot be com- pelled, by mandamus, to issue a warrant until the required action has been taken in respect to the al- lowance and certification of the claim where this is necessary. Rice v. Gwinn, 5 Idaho, 394, 49 Pac. 412; People v. Hastings, 5 111. App. 436; Campbell v. Polk County, 3 Iowa, 467; Evans v. McCarthy, 42 Kan. 426; State v. Clinton, 28 La. Ann. 47; Trustees of Paris Tp. v. Cherry, 8 Ohio St. 565; Merkel v. Berks County, 81% Pa. 505; Callaghan v. Salliway, 5 Tex. Civ. App. 239; State v. Headlee, 19 Wash. 477, 53 Pac. 948. See, also, authorities un- der preceding note. But see Land v. Allen, 65 Miss. 455. ace Flagg v. Parish of St. Charles, 27 La. Ann. 319. SOT Speer v. Kearney County Com'rs (C. C. A.) 88 Fed. 749. The fact that no levy of taxes has been made for the purpose of paying warrants issued by county commissioners in payment of indebtedness does not invalidate them. City of Little Rock v. United States (C. C. A.) 103 Fed. 418; State v. Sherman, 46 Iowa, 415; Evans v. McCarthy, 42 Kan. 426, 22 Pac. 631; State v. Ken- ney, 10 Mont. 496, 26 Pac. 388. 520 POWERS. 227 of such claim until the making of an appropriation by the proper body for its payment unless there are moneys in the treasury available for such purpose. 608 227. Fund from which payable. The usual method for the payment of the ordinary current ex- penses of a corporation is through the appropriation of moneys by a duly authorized body for this specified purpose. This ap- propriation may be a formal direction by the proper officials to pay, either from a fund raised or set aside especially for the set- tlement of specified claims or from the general revenues. 608 Where an appropriation is made for payment from a specific fund, the warrant can be drawn on and is payable only from such fund. 610 If there are no moneys available at the time of eos Goyne v. Ashley County, 31 Ark. 552. The fact that warrants are selling at a discount cannot be considered in making the appropri- ation for a certain purpose resulting In an increase of the appropriation. Cramer v. City & County of Sacra- mento Sup'rs, 18 Cal. 384; In re Ap- propriation by General Assembly, 13 Colo. 316; Henderson v. People, 17 Colo. 587; Collier &C. Lithographing Co. v. Henderson, 18 Colo. 259; Goo- dykoontz v. Acker, 19 Colo. 360, 35 Pac. 911; Goodykoontz v. People, 20 Colo. 374, 38 Pac. 473; Cook County v. Lowe, 23 111. App. 649; Hubbell v. City of South Hutchinson, 64 Kan. 645, 68 Pac. 52. The statute of lim- itations will not start to run in favor of a city on its outstanding war- rants until it has money in its treas- ury to satisfy such obligations. Snel- ling v. Joffrion, 42 La. Ann. 886; State v. Seibert, 99 Mo. 122: State v. Kenney, 9 Mont. 389, 24 Pac. 96; State v. Kenney, 30 Mont. 496, 26 Pac. 388; State T. Hickman, 11 Mont. 541, 29 Pac. 92. The rule stated in the text, however, does not apply to the payment of interest on pub- lic debts including outstanding war- rants. State v. Lindsley, 3 Wash. St. 125. SOD Carter v. Tilghman, 119 Cal. 104; Stevens v. Truman, 127 Cal. 155; Campbell v. Polk County, 3 Iowa, 467; Warren County Sup'rs v. Klein, 51 Miss. 807; Shipley v. Hacheney, 34 Or. 303, 55 Pac. 971. 6io Peake v. City of New Orleans, 38 Fed. 779; Rose v. Estudillo, 39 Cal. 270; McGowan v. Ford, 107 Cal. 177, 40 Pac. 231; Jordan v. Hubert, 54 Cal. 260; Travelers' Ins. Co. v. City of Denver, 11 Colo. 434, 18 Pac. 556; Nance v. Stuart, 12 Colo. App. 125, 54 Pac. 867; Park v. Candler, 113 Ga. 647, 39 S. E. 89; Fuller v. Heath, 1 111. App. 118; Village of Marysville v. Schoonover, 78 111. App. 189; Union County Com'rs v. Mason, 9 Ind. 97; Phillips v. Reed, 107 Iowa, 331, 77 N. W. 1031, 44 L. R. A. 131, modifying judgment in 76 N. W. 850. City of Atchison v. Leu, 48 Kan. 138. A city of the first class under the Kansas statutes is liable on war- rants issued to pay for curbing and guttering a street although the money due it from special assess- ments levied for such purpose may 227 WARRANTS, ETC. 521 issue, payment is necessarily deferred until sufficient funds ac- cumulate with which to discharge the particular obligation. 611 The fiscal authorities cannot be compelled to pay warrants drawn against a special fund or appropriation from the general revenues. 612 Although a public corporation by drawing a war- rant against a particular fund does not guarantee the existence of such a fund, it does guarantee the moneys in that fund legally belonging to it and if there has been a diversion or misappro- priation of such moneys for other purposes, the corporation is liable from its general revenues to that extent. 613 A warrant for not have been received. Labatt v. City of Seattle, 6 Wash. 315, 33 Pac. City of New Orleans, 38 La. Ann. 384, 1080; Kenyon v. City of Spo- 283; Abascal v. City of New Orleans, kane, 17 Wash. 57, 48 Pac. 783; 48 La. Ann. 565; People v. Treas- Wilson v. City of Aberdeen, 19 Wash, urer of Merritt Tp., 38 Mich. 243. 89; Townsend Gas & Elec. Light State v. Hartley, 41 Neb. 277, 59 Co. v. Hill, 24 Wash. 469, 64 Pac. N. W. 907. The holder of a gen- 778; Potter v. City of Whatcom, 25 eral fund warrant may refuse to re- Wash. 207, 65 Pac. 197; Montague v. ceive in payment moneys belonging Horton, 12 Wis. 599. to another fund the diversion of en Scruggs v. Underwood, 54 Ala. which to the settlement of his claim 186; Day v. Callow, 39 Cal. 593; is unconstitutional. Kingsberry v. State v. State Treasurer, 32 La. Pettis County, 48 Mo. 207; Camp- Ann. 177; Wilson v. Knox County, bell v. Polk County Ct., 76 Mo. 57; 132 Mo. 387, 34 S. W. 45, 477; An- Moody v. Cass County, 85 Mo. 477; drew County v. Schell, 135 Mo. 37, Morrow v. Surber, 97 Mo. 155; State 36 S. W. 206; Campbell v. Polk v. Wright, 17 Mont. 565; State v. County, 49 Mo. 214; State v. John- Cook, 13 Mont. 465, 34 Pac. 770; son, 162 Mo. 621, 63 S. W. 390; State, People v. Lathrop, 19 How. Pr. (N. v. Wilson, 71 Tex. 291, 9 S. W. 155. Y.) 358; People v. Wood, 71 N. Y. A state is not liable for the loss sus- 371; Hall v. State, 54 Neb. 280; tained by a warrant holder obliged Redmon v. Chacey, 7 N. D. 231; to sell at a discount for lack of Theis v. Washita County Com'rs, 9 funds. But see Potter v. Black, 15 Okl. 643; Diggs v. Lobsitz, 4 Okl. Wash. 186, where it is held that 232, 43 Pac. 1069; Jones v. City of part of a warrant must be paid Portland. 35 Or. 512; Northup v. when there are insufficient moneys Hoyt, 31 Or. 524, 49 Pac. 754; La to pay the whole of it. France Fire Engine Co. v. Davis, 9 612 Potter v. City of Whatcom, 25 Wash. 600. Wash. 207, 65 Pac. 197. Potter v. Black, 15 Wash. 186. If eis p e ake v. City of New Orleans, there is not sufficient money in a 38 Fed. 779; Wilder v. City of New particular fund to pay the whole of Orleans (C. C. A.) 87 Fed. 843; a warrant presented and chargeable Hockaday v. Chaffee County Com'rs, against such fund, its payment in 1 Colo. App. 362; Shotwell v. City part can be compelled. Soule v. of New Orleans, 36 La. Ann. 938; 522 POWERS. 229 the payment of a specific claim may be held invalid where it is general in its terms but the authority for its payment is special. The party to whom such a warrant may be issued is usually held charged with knowledge of the provisions of the law allowing the claim and making the appropriation. 614 228. Formal issue. In common with other evidences of indebtedness, a warrant is not issued until it is delivered and this involves the question of . its issue and delivery to the proper person. 615 229. Audit and allowance of claims as preliminary to issuance. The audit and allowance of a claim is a recognition of its ex- istence as a valid outstanding indebtedness and where the law provides for such action, if not done, warrants although drawn by the proper officials are not binding. 616 After the issuance of a warrant upon an audit and allowance, the public corporation Valleau r. Newton County, 72 Mo. Pac. 505; City of New Orleans v. 593; McGlue v. City of Philadelphia, City Hotel, 28 La. Ann. 423. 10 Phila. (Pa.) 348; Potter v. City 6" Jeffersonian Pub. Co. v. Hil- of New Whatcom, 20 Wash. 589. Hard, 105 Ala. 576; San Juan County See, also, the following cases hold- Com'rs v. Oliver, 7 Colo. App. 515; ing to a general liability where State v. Miller, 145 Ind. 598; State there is a neglect on the part of the v. Pierce, 52 Kan. 521. To issue corporation to collect or create the county warrants or orders means special fund designated. Warner v. "to send out to deliver, or to put City of New Orleans, 167 U. S. 467, into circulation." Craig v. Mason, affirming 87 Fed. 829; City of New 64 Mo. App. 342; State v. Lewis, 6 Orleans v. Warner, 175 U. S. 120; Ohio Dec. 198; Clark County Sup'rs Denny v. City of Spokane, 79 Fed. v. Lawrence, 63 111. 32. It is not 719 - r Mills County Nat. Bank v. Mills necessary to the validity of a war- County, 67 Iowa, 697; Reilly v. City rant that it be delivered in the of Albany, 112 N. Y. 30, 2 L. R. A. county in which it is issued. 648; Commercial Nat. Bank v. City eie Keller v. Hyde, 20 Cal. 594; of Portland, 24 Or. 188; Jones v. Sawyer v. Colgan (Cal.) 33 Pac. City of Portland, 35 Or. 512; Bank 911; Capmartin v. Police Jury of of British Columbia v. City of Port Natchitocb.es, 19 La. Ann. 448; State Townsend, 16 Wash. 450. But see v. City of New Orleans, 50 La. Ann. Stephens v. City of Spokane, 11 880; Wilson v. State, 53 Neb. 113, Wash. 41; and McEwan v. City of 73 N. W. 456; State v. Hallock, 20 Spokane, 16 Wash. 212. Nev. 326, 22 Pac. 123; In re State- si* Sutro v. Dunn, 74 Cal. 593, 16 house Bills, 19 R. I. 390, 35 Atl. 21 230 WARRANTS, ETC. 523 is estopped to set up as a defense, in an action upon it, irregulari- ties in the audit or allowance; to illustrate, the audit and allow- ance at a special instead of a regular meeting of the board upon whom such duty rests. 617 230. Their legal character. Warrants issued by public corporations, purchased before ma- turity and for value, are subject to all defenses or equities, al- though in contradiction to their recitals, which may exist be- tween the parties to the transaction whether such bona fide holder is the original payee or a subsequent purchaser for value. 618 In this respect they differ radically from negotiable bonds or securities issued by public corporations. The rules of law concerning the issue of warrants are applied with less strict- ness than in the case of negotiable bonds for this reason. The courts will imply authority to issue, when under the same cir- cumstances, no such authority would be implied with respect to negotiable securities and they will overlook irregularities in the form or manner of issue when such irregularities would render negotiable bonds absolutely void even in the hands of bona fide holders. 619 " Warner v. City of New Or- and the chief design of those enact- leans (C. C. A.) 87 Fed. 829; Speer v. ments was, to prevent the making Kearney County Com'rs (C. C. A.) of paper by county courts which 88 Fed. 749; Los Angeles County could be used as a circulating me- v. Lankershim, 100 Cal. 525. dium having the appearance of ordi- is School Dist. Tp. v. Lombard, nary bank paper. * * * "When 2 Dill. 493, Fed. Gas. No. 12,478; a party like the present plaintiff, Shirk v. Pulaski County, 4 Dill. 209, has performed labor, or rendered Fed. Cas. No. 12,794; Watson v. services to the county, and holds a City of Huron (C. C. A.) 97 Fed. warrant issued upon the treasury 449. of the county by the county court, i Young v. Camden County, 19 his claim to the money is not affect- Mo. 309. Sections of an act pre- ed by the taste of the court in or- scribing a form for county war- namenting their warrants, although rants are merely directory and a they are forbidden to use such or- departure from the form prescribed naments by the county. The words is no defense to an action on the of the warrant have the same mean- warrant. The court say: "The ing, and import the same obligation provisions of the act which have whether the ends of the paper upon been relied upon by the counsel for which it is printed have ornaments the county, are directory to the or not." county courts in issuing warrants, 524 POWERS. 230 Warrants are not negotiable instruments in the full sense of the term as used in the law merchant. They are non-negotiable and merely prima facie evidence of a valid claim against the corporation issuing them.* 20 2o City of Nashville v. Ray, 86 U. S. (19 Wall.) 468. "Vouchers for money due, certificates of indebted- ness for services rendered, or for property furnished for the uses of the city, orders or drafts drawn by one city officer upon another, or any other device of the kind used for liquidating the amounts legitimately due to public creditors, are, of course, necessary instruments for carrying on the machinery of municipal ad- ministration, and for anticipating the collection of taxes. But to in- vest such documents with the char- acter and incidents of commercial paper, so as to render them in the hands of bona fide holders absolute obligations to pay, however irreg- ularly or fraudulently issued, is an abuse of their true character and purpose." Thompson v. Searcy County (C. C. A.) 57 Fed. 1030; Speer v. Kear- ney County Com'rs (C. C. A.) 88 Fed. 749; Lake County Com'rs v. Keene Five-Cents Sav. Bank (C. C. A.) 108 Fed. 505; Shirk v. Pulaskl County, 4 Dill. 209, Fed. Cas. No. 12,794; Crawford County v. Wilson, 7 Ark. 214; Police Jury of Tensas v. Britton, 82 U. S. (15 Wall.) 566; Wall v. County of Monroe, 103 U. S. 74. "The warrants being in form negotiable, are transferable by de- livery so far as to authorize the holder to demand payment of them and to maintain, in his own name, an action upon them. But they are not negotiable instruments in the sense of the law merchant, so that, when held, by bona fide purchaser, evidence of their invalidity or de- fenses available against the orig- inal payee would be excluded. The transferee takes them subject to all legal and equitable defenses which existed to them, in the hands of such payee. There has been a great number of decisions in the courts of the sev- eral states upon instruments of this kind, and there is little diversity of opinion respecting their charac- ter. All the courts agree that the instruments are mere prima facie and not conclusive evidence of the validity of the allowed claims against the county by which they were issued. The county is not es- topped from questioning the legal- ity of the claims; and when this is conceded, the instruments conclude nothing as to other demands be- tween the parties." The court also in speaking of the decision in Craw- ford County v. Wilson, 7 Ark. (2 Eng.) 214, said: "This case in the supreme court of Arkansas, is cited as showing that a different rule pre- vails in that state. The language of the opinion, that county war- rants are endowed with the proper- ties of negotiable instruments, must be read in connection with the point involved, which was whether coun- ty warrants were transferable by mere delivery, so as to vest the legal interest in the holder. To this ex- tent they may be called negotiable, but no court of Arkansas has held that they were negotiable in the sense of the law merchant, so as to shut out, in the hands of a bona 230 WARRANTS, ETC. 525 They are negotiable only so far that, when endorsed, they be- come transferable by delivery and the holder may maintain an action thereon in his own name. But in such action, whether brought by the original payee or a subsequent purchaser for value, all irregularities in the manner of issue, lack of authority or the purpose for which the funds were used, are available as defenses. 621 In a case decided by the supreme court of the United fide purchaser, inquiries as to their validity or preclude defenses which could be made to them in the hands of the original parties. The law is not different there from that which obtains in other states." Hill v. City of Memphis, 134 U. S. 198; Shirk v. Pulaski County, 4 Dill. 209, Fed. Cas. No. 12,794; People v. El Dorado County Sup'rs, 11 Cal. 170; Pacific Pav. Co. v. Mow- bray, 127 Cal. 1; Ray v. Wilson, 29 Fla. 342, 10 So. 613, 14 L. R. A. 773; Delfosse v. Metropolitan Nat. Bank, 98 111. App. 123; People v. Johnson, 100 111. 537; Davis v. Steu- ben School Tp. ( 19 Ind. 694, 50 N. E. 1; Clark v. City of Des Moines, 19 Iowa, 199; Walnut Tp. v. Jordan, 38 Kan. 562, 16 Pac. 812; Garfield Tp. v. Crocker, 63 Kan. 272, 65 Pac. 273; Sturtevant v. Inhabitants of Liberty, 46 Me. 457; Emery v. Inhab- itants of Mariaville, 56 Me. 315; Van Akin v. Dunn, 117 Mich. 421, 75 N. W. 938; Matthis v. Inhabitants of Cameron, 62 Mo. 504; International Bank of St. Louis v. Franklin Coun- ty, 65 Mo. 105, overruling Howell v. Reynolds County, 51 Mo. 154; Chand- ler v. City of Bay St. Louis, 57 Miss. 326; Great Falls Bank v. Farmington, 41 N. H. 32; State v. Cook, 43 Neb. 318; D County Com'rs v. Sauer, 8 Okl. 235; Borough of Port Royal v. Graham, 84 Pa. 426; East Union Tp. v. Ryan, 86 Pa. 459; Hyde v. County of Franklin, 27 Vt. 185; Bardsley v. Sternberg, 18 Wash. 612; West Philadelphia Title & Trust Co. v. City of Olympia, 19 Wash. 150, 52 Pac. 1015. See, also, many authorities collected in 21 Am. & Eng. Enc. Law (2d Ed.) p. 26, note to par. 12. sal Wall v. Monroe County, 103 U. S. 74; Ouachita County v. Wol- cott, 103 U. S. 559; Watson v. City of Huron (C. C. A.) 97 Fed. 449; Crawford County T. Wilson, 7 Ark. 214; Apache County v. Barth (Ariz.) 53 Pac. 187; People v. Gray, 23 Cal. 125; Jones v. Smith, 64 Ga. 711; People v. Rio Grande County Com'rs, 11 Colo. App. 124, 52 Pac. 748; Good- win v. Town of East Hartford, 70 Conn. 18; Newell v. School Direc- tors of Dist. No. 1, 68 111. 514; City of Hammond v. Evans, 23 Ind. App. 501; Davis v. Steuben School Tp., 19 Ind. App. 694, 50 N. E. 1; Clark v. City of Des Moines, 19 Iowa, 199; Clark v. Polk County, 19 Iowa, 248. First Nat. Bank of Arkansas City v. Gates, 66 Kan. 505, 72 Pac. 207. "Such paper (commercial) is made free from defenses in the hands of such holders in order to facilitate the circulation thereof, and there- by promote the transaction of busi- ness. But paper non-negotiable for any reason is not thus protected. The very fact of its being non-ne- gotiable is a sign of warning to the prospective purchaser and places him on his guard. Municipal war- 526 POWERS. 231 States, it was held that a warrant drawn by state authorities receivable in payment of certain obligations due the state was not a bill of credit or other instrument intended to circulate as money. 022 Some authorities hold that an executive warrant di- recting the payment of money in pursuance of an appropriation made by law does not partake of the nature of a contract but is merely a license of power and revocable so long as the payment authorized is not made. 623 231. Form. A public corporation transacts its business, exercises all its powers and performs all its duties through its duly appointed or elected agents. To protect the corporation therefore, there are well denned and established rules of law controlling and regu- lating the manner in which and the acts that may be done by such agents for and in behalf of their principal. This is espe- rants though negotiable in form, are non-negotiable in fact; hence they are not within the protection of the rule which guards commercial pa- per. The warrant in question be- ing such an instrument, it was there- by, in the eye of the law, non-ne- gotiable, though as to form and in other respects of a negotiable char- acter. It therefore took its place in the list of non-negotiable paper for all purposes. In other words, an instrument non-negotiable between the original parties remains non-ne- gotiable through successive trans- fers. The bank, knowing that it was non-negotiable must take and hold it as it would any other non-nego- tiable paper. Long v. McDowell, 107 Ky. 14, 52 N. W. 812; Klein v. Pipes, 43 La. Ann. 359; Emery v. Inhabitants of Mariaville, 56 Me. 315; School Dist. No. 2 v. Stough, 4 Neb. 357; State v. Cook, 43 Neb. 318; Smith v. Town of Epping, 69 N. H. 558, 45 Atl. 415; McPeeters v. Blankenship, 123 N. C. 651; Oilman v. Gilby Tp., 8 N. D. 627; Capital Bank of St. Paul v. School Dist. No. 03, 1 N. D. 479; Crawford v. Noble County Com'rs, 8 Okl. 450. But see Snyder Tp. v. Bovaird, 122 Pa. 442, 15 Atl. 910, as holding that a blank assignment does not vest in the holder of a township warrant the right to main- tain an action in his own name against the township. Hubbell v. Town of Custer City, 15 S. D. 55, 87 N. W. 520; Lane v. Hunt Coun- ty, 13 Tex. Civ. App. 315, 35 S. W. 10; Bardsley v. Sternberg, 17 Wash. 243, 49 Pac. 499; West Philadelphia Title & Trust Co. v. City of Olympia, 19 Wash. 150, 52 Pac. 1015; Chehalis County v. Hutcheson, 21 Wash. 82, 57 Pac. 341. See, also, authorities cited in preceding note. 622 Houston & T. C. R. Co. v. Texas, 177 U. S. 66. See, also, City of New Orleans v. Mount, 24 La. Ann. 37. 623 Fletcher v. Renfroe, 56 Ga. 674. 231 WARRANTS, ETC. 527 cially true of all those acts by or through which a pecuniary re- sponsibility or obligation may be imposed upon a public corpora- tion. The law or custom may require warrants in their form to be phrased in a certain manner, 624 signed by certain officials, en- dorsed by others 625 and sealed with the seal of the corporation, if any. 626 Where a warrant in its mechanical execution does not comply with such reasonable requirements of the law, it may be considered invalid and the official to whom it is directed and whose duty it is to pay valid warrants, can properly refuse to recognize them. 627 This may be not only a discretionary matter 2* Shipman v. Forbes, 97 Cal. 572, 32 Pac. 599; Witter v. Bach- man, 117 Cal. 318, 49 Pac. 202; El- lis v. Witmer, 134 Cal. 249, 66 Pac. 301; State v. Pilsbury, 29 La. Ann. 787; Taylor v. Chickasaw County Sup'rs, 74 Miss. 23, 19 So. 834; Cal- laghan v. Salliway, 5 Tex. Civ. App. 239; Minor v. Loggins, 14 Tex. Civ. App. 15, 37 S. W. 1086. 625 Apache County v. Barth (Ariz.) 53 Pac. 187; National Bank of D. O. Mills & Co. v. Herold, 74 Cal. 603, 16 Pac. 507 (the omission of an official designation not material) ; State v. Dickerman, 16 Mont. 278, 40 Pac. 698; State v. Morton, 51 S. C. 323, 28 S. E. 945. It is not nec- essary that each member of the board of trustees of a school district sign a warrant to render it valid. Bardsley v. Sternberg, 17 Wash. 243, 49 Pac. 499. A city is not liable for a fraudulent re-issue of war- rants by its treasurer in payment of the original Indebtedness. 26 Smeltzer v. White, 92 U. S. 390; Springer v. Clay County, 35 Iowa, 241; Thompson v. Fellows, 21 N. H. (1 Fost.) 425. A warrant issued by selectmen need not be under seal. State v. Morton, 51 S. C. 323, 28 S. E. 945; Heffleman v. Pennington County, 3 S. D. 162. "The stat- ute is very explicit as to how a claim against a county shall be presented and passed upon by its board of county commission- ers. The duty of the board is to judicially investigate the validity and justice of the claim, and to al- low or disallow the same in whole or in part, as to such board shall appear just or lawful. While the immediate purpose of the warrant is to enable the claimant to whom it is delivered to draw from the county treasury the amount of mon- ey therein named, yet it rests upon, and its issue and payment could only be justified upon, the theory that after a full investigation the county had found itself to be so in- debted; so that the warrant is a formal and deliberate acknowledg- ment by the county of such indebt- edness." 627 Hamilton County Com'rs v. Sherwood (C. C. A.) 64 Fed. 103. A county warrant regular in its form but issued for an account which was not verified as required by Gen. St. Kan. 1889, c. 25, 28, is not utterly void, unless issued fraudulently without consideration or authority. Freeman v. City of Huron, 10 S. D. 368, 73 N. W. 260. The failure of a city treasurer to record, as required by law, warrants presented. 528 POWERS. 232 with such official but an imperative duty ; the right to refuse pay- ment may also exist where the appropriation has been made to a certain individual for a specific purpose and the warrant as drawn is to another individual and without specifying the pur- pose. No rule of universal applicability, however, can be given but charter or statutory provisions must be consulted to deter- mine the validity of the warrant in this respect. 232. Wording. Provisions that a warrant shall show upon its face the purpose for which it is drawn are usually considered mandatory and in the absence of such recital, no recovery can be had even by a bona fide purchaser. 628 A substantial compliance, however, with charter or statutory provisions, satisfies legal requirements and payment can then be enforced. 629 Where they are issued con- taining certain recitals and the law in full under which they are is* sued, subsequent legislation cannot be passed which changes or af- fects the terms or conditions upon which they are payable. Such legislation will be considered an impairment of the obligation of the contract between the holder and the maker. 630 The party to whom payable is usually determined by law. Ordinarily, a war- rant is only valid when issued in favor of the one so designated. This principle has been applied in the issue of a warrant to the assignee of one holding the original claim and invalidating it. 631 does not defeat the right of a war- ation of warrants see Foote v. City rant holder to enforce it. See also of Salem, 96 Mass. (14 Allen) 87; holding that statutory provisions Young v. Camden County, 19 Mo. fixing the form of warrants are 309; and Kenyon v. City of Spo- directory and that the addition of kane, 17 Wash. 57. other words does not necessarily de- 629 Goldsmith v. Stewart, 45 Ark. stroy their effect. City of Burrton 149; San Juan County Com'rs v. v. Harvey County Sav. Bank, 28 Oliver, 7 Colo. App. 515, 44 Pac. 362; Kan. 390; and Young v. Camden Ray Y. Wilson, 29 Fla. 342, 10 So. County, 19 Mo. 309. 613, 14 L. R. A. 773; City of East 628 Raymond v. People, 2 Colo. St. Louis v. Flannigen, 36 111. App. App. 329, 30 Pac. 504, following 50. Travelers' Ins. Co. v. City of Den- eso Brooklyn Park Com'rs v. Arm- ver, 11 Colo. 434, 18 Pac. 556; San strong, 45 N. Y. 234; Wabash & E. Juan County Com'rs v. Oliver, 7 t!anal Co. v. Beers, 2 Black (U. S.) Colo. App. 515, 44 Pac. 362. For 448. cases passing upon questions rela- esi Sheerer v. Edgar, 76 Cal. 569; tive to the phraseology or ornament- but see Hadley v. Dague, 130 CaL 233a WARRANTS, ETC. 529 233. Validity. (a) In general. There does not exist usually, an implied au- thority on the part of public corporations to issue warrants. The power must be found in some provision of the laws of the state or charter of the municipality before it can be exercised. To be valid, there must exist the legal authority for their issue assuming the absence of irregularities in other respects. 632 The presumption of 207, 62 Pac. 500. "The contract was originally awarded to John T. Long and before its completion was assigned to the Western Contract- ing and Construction Company. The warrant issued with the assessment was in favor of 'the Western Con- tracting and Construction Company, assignee of John T. Long, agents or assigns.' The appellant contends that the warrant should have been issued in the name of the original contractor, and that its issuance in favor of his assignee was unauthor- ized. The form of warrant which is prescribed in the street improve- ment act in terms authorizes and empowers the contractor, his agents or assigns to demand and receive the several assessments, and the act declares that the warrant to be is- sued shall be 'substantially' in this form. The right of the contractor to assign the contract prior to the com- pletion of the work is recognized in many portions of the act and has been recognized by this court. Anderson v. De Urioste, 96 Cal. 404. After he has ceased to have any interest in the contract, or in the assessment therefor, there would seem to be no reason for the issu- ance of the warrant in his name es- pecially since the statute does not specifically require it. Sections 9 and 10 of the act designated the assignee as the proper person to the warrant and assignment Abb. Corp. 34. are to be delivered. We hold there- fore, that a warrant in favor of one who is therein named as the as- signee of the original contractor, whose name is also given, is 'sub- stantially' in the form prescribed in the act." Travelers' Ins. Co. v. City of Denver, 11 Colo. 434; In- ternational Bank of St. Louis r. Franklin County, 65 Mo. 105. eaa City of Little Rock v. United States, 103 Fed. 418; Farmers' & M. Nat. Bank v. School Dist. No. 53, 6 Dak. 255. In this case a school board had issued warrants to pay for a school house site. In speak- ing of their validity the court said: "The fact that the legislature has in no place, nor under any circum- stances, clothed the district board with power to create debts that should be binding obligations upon the district, except by and with the consent of the inhabitants of the district, is sufficient evidence that it supposed the authority to incur obligations would be more wisely exercised by those who had them to pay than by a board which perad- venture might in that regard be moved by some ulterior purpose. In any event, the legislature, with- in the statutory limitations has left the matter entirely with the inhab- itants of the district and empow- ered the district board to act only in consonance with the will of the voters of the district, as expressed at 530 POWERS. 233a law is, however, in favor of the legality of warrants, orders or oth- er like evidences of indebtedness and the burden of proof is upon the party denying such validity. 633 The rule of law which applied to the issue of negotiable bonds or the increasing of indebtedness by a de facto corporation also applies to the validity of warrants issued by a de facto organization. These are, if otherwise valid, held good in the hands of third parties to whom they have been sold. Obligations incurred by the inhabitants of a certain dis- trict as a rule cannot be avoided by the tax-paying interests of such territory. The obligation exists not against the individuals but against the district. 63 * In preceding sections the subject of the district meetings. The district board in issuing these orders acted without any authority whatever and such orders are therefore, in- valid for any purpose." Clark v. City of Des Moines, 19 Iowa, 199; Jefferson County Sup'rs v. Arrighi, 54 Miss. 668; Andrews v. School Dist. of McCook, 49 Neb. 420, 35 L. R. A. 444; Markey v. School Dist. No. 18, 58 Neb. 479, 78 N. W. 932, following Pomerene v. School Dist. No. 56, 56 Neb. 126, 76 N. W. 414; State v. Omaha Nat. Bank, 59 Neb. 483, 81 N. W. 319. See, also, authorities cited 224, note 1. ess wall v. Monroe County, 103 U. S. 74; George D. Barnard & Co. v. Knox County, 37 Fed. 563, 2 L. R. A. 426; Aylesworth v. Gratiot County, 43 Fed. 350; Speer v. Kear- ney County Com'rs (C. C. A.) 88 Fed. 749; Seward County Com'rs v. Aetna Life Ins. Co. (C. C. A.) 90 Fed. 222; Rollins v. Rio Grande County Com'rs (C. C. A.) 90 Fed. 675; Grayson v. Latham, 84 Ala. 646; Lusk v. Perkins, 48 Ark. 238; Apache County v. Barth (Ariz.) 53 Pac. 187; San Juan County Com'rs r. Oliver, 7 Colo. App. 515; Lake County Com'rs v. Standley, 24 Colo. 1; Ray v. Wilson, 29 Fla. 342, 14 L. R. A. 773; People v. Johnson, 100 111. 537; City of Connersville v. Con- nersville Hydraulic Co., 86 Ind. 184; Hospers v. Wyatt, 63 Iowa, 264; Leavenworth County Com'rs v. Kel- ler, 6 Kan. 510; Cheeney v. Inhab- itants of Brookfleld, 60 Mo. 53; Mountain Grove Bank v. Douglas County, 146 Mo. 42; Custer County Com'rs v. De Lana, 8 Okl. 213; Edin- burg American Land & Mortg. Co. v. City of Mitchell, 1 S. D. 593, 12 L. R. A. 705; Chehalis County v. Hutche- son, 21 Wash. 82; Brown v. School Directors of Jacobs, 77 Wis. 27. 634 Board of Education of Atchi- son v. De Kay, 148 U. S. 591; Speer v. Kearney County Com'rs (C. C. A.) 88 Fed. 749. The point was urged here that the warrants were invalid because the law under which they were given was unconstitution- al. Upon this the court said: "Such a law passes the scrutiny and receives the approval of the attor- ney general, of the lawyers who compose the Judiciary committees of the legislative bodies, of the legis- lature and of the governor before it reaches the statute book. * * * Courts declare its invalidity with hesitation and after long delibera- tion and much consideration, even when its violation of the organic 233a WARRANTS, ETC. 5.U incurring indebtedness by public corporations has been discussed, whether such indebtedness exists as negotiable bonds or in other forms and in this connection attention has been called to the constitutional or statutory provisions found in every state and which limit the amount of indebtedness that can be legally in- curred by public corporations. Indebtedness incurred in excess of such limitations is usually held void and not capable of en- forcement. 835 Whether warrants as ordinarily issued constitute law is clear and never when it is doubtful. Until the judiciary has declared it void, men act and con- tract and they ought to act and con- tract on the presumption that it is valid and where before such a dec- laration is made, their acts and con- tracts have affected public interest or private rights, they must be treated as valid and lawful. The acts of a de facto corporation or officer under an unconstitutional law before its invalidity is challenged in or declared by the judicial depart- ment of the government cannot be avoided as against the interests of the public or of third parties who have acted or invested in good faith in reliance upon their valid- ity by any ex-post facto declaration or decision that the law under which they acted was void." Merchants' Nat. Bank v. McKinney, 2 S. D. 106, 48 N. W. 841. The payment of war- rants was sought to be avoided on the ground that there were no coun- ty officers and therefore no county. The court said: "So we say here the county existed from the moment it was segregated from the other portions of the territory, its bound- aries defined, and its name given to it, and all the offices provided by law existed. They were vacant, it is true, but they nevertheless exist- ed, ready to be filled whenever cer- tain conditions should exist. * * * We conclude therefore, that there were de jure county offices existing in Douglas county to be filled and that, when filled, the officers were at least, de facto officers and their acts good as to third persons and the public; and that the board of county commissioners of said Doug- las county in issuing the warrants in controversy, constituted a de facto board and the warrants issued by it are prima facie valid and bind- ing upon the county." ess See 148 et seq. Farmers' & M. Nat. Bank v. School Dist. No. 53, 6 Dak. 255. "We think it was the purpose of the legislature to re- strict within the limits specified by the statute, the amount of actual expenditures which could be made by the district in any one year. Any other construction of this statute would be equivalent to holding that it has no force or effect and that school districts or school boards may incur any amount of indebtedness and bind the district with its im- mediate payment." Andrew County v. Schell, 135 Mo. 31, 36 S. W. 206; Mountain Grove Bank v. Douglas County, 146 Mo. 42, 47 S. W. 944; D County Com'rs v. Sauer, 8 Okl. 235; Municipal Se- curity Co. v. Baker County, 33 Or. 338, 54 Pac. 174; City of Sherman v. Smith, 12 Tex. Civ. App. 580, 35 S. W. 294; Baker v. City of Seat- 532 POWERS. 233 a an "indebtedness" within the meaning of such constitutional or statutory phrases may depend upon the decisions of a particular state following what might be termed a local public policy 636 or upon the construction given by some courts to such instruments that if drawn against a tax levy or funds already within the con- trol and possession of the corporation they do not constitute an indebtedness. 637 Those provisions which require, before an in- debtedness can be legally incurred, the affirmative vote of the electors, must be followed where warrants are regarded as an indebtedness, and if issued without are invalid. 638 tie, 2 Wash. St. 576. Invalid war- rants, however, can be validated under legislative authority. Duryee v. Friars, 18 Wash. 55. The consti- tutional limitation does not apply to obligations incurred in matters essential to governmental mainte- nance and therefore warrants issued after such limitation had been reached are prima facie valid. Roe v. Town of Philippi, 45 W. Va. 785, 32 S. E. 224. The fact of a debt in excess of a constitutional limita- tion must, however, clearly appear. Kane v. School Dist., 52 Wis. 502. 36 George D. Barnard & Co. v. Knox County, 37 Fed. 563, 2 L. R. A. 426, following Potter v. Douglas County, 87 Mo. 240; Koppikus Y. State Capitol Com'rs, 16 Cal. 248; Henderson v. People, 17 Colo. 587. Every appropriation in excess of the constitutional limitation should be regarded as void. City of Spring- field v. Edwards, 84 111. 626; Law v. People, 87 111. 385; Fuller v. City of Chicago, 89 111. 282; In re State War- rants, 25 Neb. 659; State v. Parkin- son, 5 Nev. 15; Lorence v. Bean, 18 Wash. 36. School Dist. No. 3 v. Western Tube Co., 5 Wyo. 185, and Fenton v. Blair, 11 Utah, 78, hold warrants void issued in excess of the Federal limitation on indebtedness. GST puller v. Heath, 89 111. 296; Phillips v. Reed, 107 Iowa, 331. "If it appeared that the indebtedness to the payment of which the satisfac- tion of plaintiff's warrant is sought to be postponed was incurred in ex- cess of the prescribed limit * * * the decision of this case would be a matter of no difficulty. It is true, the petition alleges that at the times when this indebtedness was contract- ed the city was in debt to the limit of the amount allowed. But it does not follow from this that the in- debtedness as represented by these warrants was necessarily invalid. If the city had on hand or in pros- pect, at the time these warrants were issued, funds with which to meet them without trenching upon the rights of creditors, for current expenses of the city, then the war- rants were valid, although such funds may have been thereafter wrongfully applied to other pur- poses." Darling v. Taylor, 7 N. D. 538, 75 N. W. 766; Shannon v. City of Huron, 9 S. D. 356, 69 N. W. 598; Lawrence County v. Meade County, 10 S. D. 175, 72 N. W. 405. ess Farquharson v. Yeargin, 24 Wash. 549, 64 Pac. 717. The rule, however, does not apply to warrants issued in excess of a constitutional limitation without the consent of 233b WARRANTS, ETC. 533 (b) Warrants invalid because of purpose for which issued. Again a warrant may be invalid because issued for a purpose which is not considered or regarded by the courts as a public one ; the basis of all legal expenditure of public moneys by public corporations is the fact of the disbursement for some purpose germane to their organization and the transaction of public busi- ness by them. Clearly, therefore, if warrants are issued by public corporations, although regular in their form, for a pur- pose not public in its character, they will be regarded as illegal, and not being considered negotiable in their character, this ques- tion can be raised even where they have passed into the hands of bona fide holders for value and before maturity. 639 the required affirmative vote when Issued in payment of compulsory obligations. The cost of construct- ing a court house and the salaries of county officials are of such a character. The court in part say: "It is contended that the warrants issued after the county had reached its limit of indebtedness were illegal. It appears that these warrants were issued for salary purposes and to complete the payment upon the county court house. * * * At the time the court house was erect- ed such a county building was ab- solutely necessary for county offi- cers and a proper care of the county records. Republic, the county seat, was a new mining camp and but a short time before had been destroyed by fire. Most of the buildings were small frame cabins none of them being suitable places to deposit the county records or to accommodate the county offices. While, ordina- rily, warrants issued in payment of money expended in building a court house would not fall under the class of compulsory obligations the condi- tions existing in Republic at the time of the erection of the court house were such as to bring the warrants for the erection of this particular court house within the rule * * * because it may be fairly inferred that no other build- ing could be had for the purpose owing to the destruction of the town by fire." Rauch v. Chapman, 16 Wash. 568, 36 L. R. A. 407. 639 First Nat. Bank of Lansdale v. Wyandotte County Com'rs (C. C. A.) 68 Fed. 878; Littler v. Jayne, 124 111. 123, 16 N. E. 374; 'Long v. Boone County, 32 Iowa, 181. Warrants valid issued in payment of a con- tract for grading and improving the public roads of a county. Salamanca Tp. v. Jasper County Bank, 22 Kan. 696; D County Com'rs v. Sauer, 8 Okl. 235; Custer County Com'rs v. De Lana, 8 Okl. 213, 57 Pac. 162. The presumption, how- ever, exists that such warrants are issued for lawful corporate purpose. King v. Sullivan County, 67 Tenn. (8 Baxt.) 329; James v. City of Se- attle, 22 Wash. 654, 62 Pac. 84. The payment of expenses incurred by city officials while on a trip to various cities investigating munici- pal affairs was not held as a public purpose. The court say in part: "The members of the city council are trustees. The body holds a trust for the inhabitants of the city. The 534 POWERS. (c) Invalidity resulting from character. By the constitution of the United States the states are prohibited from coining money, emitting bills of credit or making anything but gold and sil- ver coin a legal tender in payment of debts. At times states have authorized the issuance of warrants which are receivable within the state for taxes, debts or other obligations due them; the question of their validity has arisen, the contention being made that such warrants are "currency" within the meaning of the Federal constitution, the emission of which is there pro- hibited. The decisions, however, have been adverse to such con- tention. 640 terms of the trust are fixed by legis- the willingness of people to take lation and no expenditure of money them in payment of debts due them belonging to the city can be made from the state and that while in without express authority or implied their hands others might receive authority by reason of a necessary them in payment of debts, was a granted power. Where this author- possibility or probability depending ity does not exist the council is upon whether the person taking without power to authorize the pay- them had opportunity to use them ment of the claim against the city, to pay some of his own debts to and upon sound principle it cannot the state. That he might on some be conceded that the council had the occasion be able to so use the war- power to authorize the payment of rant as to enable him to thereby the claim of appellant. * * * discharge an obligation from him- Where the council is without power self to a third person who was will- to authorize the payment of the ing to accept it does not bring the claim, the officer may properly re- warrant so used within the ordinary fuse to countersign the warrant di- meaning of the term 'money.' It is recting the payment of such claim." not money in that sense." See, also, 6*0 Houston & T. C. R. Co. v. Tex- Craig v. Missouri, 4 Pet. (U. S.) as, 177 U. S. 66. "These warrants 410; Briscoe v. Bank of Kentucky, were payable to the individual to 11 Pet. (U. S.) 257; Woodruff v. whom the state was indebted, or to Trapnall, 10 How. (U. S.) 190; bearer, and were issued to a creditor Thomas v. City of Richmond, 79 U. of the state. That the legislature S. (12 Wall.) 349; Sprott v. United may have desired to facilitate the States, 87 U. S. (20 Wall.) 459; use of the warrants by these provi- Poindexter v. Greenhow, 114 U. S. sions is perhaps true but the mem- 270 (Virginia coupon cases) ; Baldy bers of the legislature knew that to v. Hunter, 171 U. S. 388; Lindsey v. issue the warrants to circulate as Rottaken, 32 Ark. 619; Cothran v. money would be to condemn them City of Rome, 77 Ga. 582; Dively v. from the start. That the promise City of Cedar Falls, 21 Iowa, 565; should be made to receive them in Cheeney v. Inhabitants of Brookfleld, payment of debts due the state 60 Mo. 53. would add to their usefulness and to 234 WARRANTS. ETC. 535 (d) Refunding. Warrants issued for the refunding of a prior indebtedness will partake of the original character of such in- debtedness. Void debts cannot be rendered valid by a mere change of form, 641 and the reverse of this rule is also true that indebtedness which is valid and binding cannot be rendered in- valid by the issue of warrants for which there is no authority. 842 As a rule, in the absence of authority, warrants outstanding can- not be funded by the issue of negotiable bonds, an instrument of a different character and which, owing to this fact, may increase the debt beyond a constitutional limit; such refunding bonds are usually held void. 643 234. Interest payable. Warrants are non-interest bearing, prima facie evidences of indebtedness. If made payable at a certain date, they bear in- terest from and after that date if presented and payment is re- fused. 644 A demand is generally necessary to start interest run- s* 1 Royster v. Granville County Com'rs, 98 N. C. 148. *2 Otis v. Inhabitants of Stock- ton, 76 Me. 506; Brown v. Bon Homme County, 1 S. D. 216, 46 N. W. 173. Neither can a valid debt as evidenced by a warrant be rendered invalid by the issue of either void refunding warrants or bonds. See O'Connor v. Parish of East Baton Rouge, 31 La. Ann. 221; City of Plattsmouth v. Fitzgerald, 10 Neb. 401. 043 Whitwell v. Pulaski County, 2 Dill. 249, Fed. Gas. No. 17,605; Richards v. Klickitat County, 13 Wash. 509. This can be done, how- ever, if constitutional authority ex- ists. 6*4 City of New Orleans v. Warner, 175 U. S. 120, modifying decree in (C. C. A.) 81 Fed. 645; Marks v. Purdue University, 37 Ind. 155; Rooney v. Dubuque County, 44 Iowa, 128. An actual tender of an amount due on a warrant, alone can sus- pend the accumulation of interest. Creole Steam Fire Engine Co. v. City of New Orleans, 39 La. Ann. 981; State v. Hickman, 11 Mont. 541, 29 Pac. 92. No special appropria- tion necessary for the payment of interest on outstanding warrants. Hotchkiss v. Marion, 12 Mont. 218, 29 Pac. 821. Holding unconstitu- tional compiled statutes, division 5, 794 relating to the payment of in- terest on unpaid warrants after de- mand. Read v. City of Buffalo, 74 N. Y, 463; Shipley v. Hacheney, 34 Or. 303; Seton v. Hoyt, 34 Or. 266, 55 Pac. 967; Monteith v. Parker, 36 Or. 170, 59 Pac. 192. Where unpaid warrants are funded, the holder is entitled to interest from the date of the original warrant. Davidson County v. Olwill, 72 Tenn. (4 Lea) 28; Gibson County v. Rains, 79 Tenn. (11 Lea) 22; Lang- don v. City of Castleton, 30 Vt. 285; Seymour v. City of Spokane, 6 536 POWERS. 235 ning upon them. This rule also applies where they are payable on demand and on presentation payment is refused. 645 235. Actions on warrants. "Warrants being non-negotiable and merely prima facie evi- dence of indebtedness against the public corporation issuing them are subject to all equities existing between parties even when they are in the hands of a bona fide holder who has pur- chased the same and paid value therefor before maturity. In an action brought by such a holder against the maker with its con- sent, 948 in case of a refusal to pay, all the defenses which may Wash. 362; City of Scranton v. Hyde Park Gas Co., 102 Pa. 382; Mcln- tosh T. Salt Lake County, 23 Utah, 504, 65 Pac. 483; Alexander v. Oneida County, 76 Wis. 56, 45 N. W. 21. Where the statutes prohibit the payment of interest on county or- ders, it cannot be recovered, but see the following cases holding that municipal warrants or orders do not bear interest after they have be- come due and payable or after de- mand and nonpayment for want of funds. Madison County v. Bartlett,2 111. (1 Scam.) 67; Hardin County v. McFarlan,82 111. 138; City of Chicago v. English, 80 111. App. 163; Hall v. Jackson County, 95 111. 352; War- ren County Sup'rs v. Klein, 51 Miss. 807; Com. v. Philadelphia County Com'rs, 4 Serg. & R. (Pa.) 125; Ashe v. Harris County, 55 Tex. 49; Alex- ander v. Oneida County, 76 Wis. 56. 645 City of New Orleans v. Warner, 175 U. S. 120. The commencement of a suit will be sufficient demand to make the warrant carry interest from that time. Ter. v. Cascade County Com'rs, 8 Mont. 396, 7 L. R. A. 105; Shipley v. Hacheney, 34 Or. 303, 55 Pac. 971; Monteith v. Parker, 36 Or. 170, 59 Pac. 192: Soule v. City of Seattle, 6 Wash. 315, 33 Pac. 384, 1080. Interest is not payable on improvement warrants until after the city issuing them is entitled to interest on delinquent taxes due under the assessment form- ing the fund for the payment of such warrants. Special statutes of particular states may provide for the payment of interest on warrants presented for payment and remain- ing unpaid for want of funds. Such provisions will, of course, establish rights not otherwise existing. See Jacks & Co. v. Turner, 36 Ark. 89. Such a statute held unconstitutional in Arkansas being in contravention of the constitutional provision pro- hibiting counties from issuing in- terest-bearing evidences of indebted- ness. Hall v. Jackson County, 95 111. 353; Marks v. Purdue University, 37 Ind. 155; Rooney v. Dubuque County, 44 Iowa, 128; Robbins v. Lincoln County Ct., 3 Mo. 57; Skin- ner v. Platte County, 22 Mo. 437; State v. Trustees of Town of Pa- cific, 61 Mo. 155; Higgins v. Ed- wards, 2 Mont. 585; Seton v. Hoyt, 34 Or. 266, 43 L. R. A. 634; Monteith v. Parker, 36 Or. 170, 59 Pac. 192; Freeman v. City of Huron, 10 S. D. 235 WARRANTS, ETC. 537 be available or to which they were subject in the hands of the original payee may be taken advantage of by the defendant. 647 And all conditions which under other circumstances would create an estoppel against one of the parties to the transaction will operate here to the same effect. 648 It is not necessary for the holder to proceed by mandamus against the proper disbursing officer of the corporation, but he may sue it direct. 649 Mandamus may, however, be the ordinary or exclusive remedy for the col- lection of a corporate warrant. 650 If warrants are payable, as stated in a preceding section, 651 from a specific fund or by their terms are made payable from such fund, there does not exist a general obligation to pay them from revenues or funds raised in 368; Williams v. Shoudy, 12 Wash. 362; City of New Orleans v. Warn- er, 175 U. S. 120. 646 Klein v. Warren County Sup'rs, 51 Miss. 878. See, also, Klein v. Smith County Sup'rs, 54 Miss. 254. 647 Coffin v. Kearney County Com'rs, 114 Fed. 518. The defense that warrants issued in excess of the statutory limitation as to amount held not available where the fact is undisputed that there has been no assessment upon which to base a determination of what is the stat- utory amount. Grayson v. Latham, 84 Ala. 546; Pulaski County v. Lincoln, 9 Ark. 320; Wood v. Bangs, 1 Dak. 179. An action for equitable relief in- volving the validity of warrants cannot be maintained until the par- ties are placed in statu quo. Polk v. Tunica County Sup'rs, 52 Miss. 422; Crawford v. Noble County Com'rs, 8 Okl. 450. See, also, 230, supra. 6*8 Thompson v. Searcy County (C. C. A.) 57 Fed. 1030, following Fones Hardware Co. v. Erb, 54 Ark. 645, 13 L. R. A. 353. 6*9 Jerome v. Rio Grande County Com'rs, 18 Fed. 873; Thompson v. Searcy County (C. C. A.) 57 Fed. 1030; School Dist. No. 7 v. Reeve, 56 Ark. 68; Travelers' Ins. Co. v. City of Denver, 11 Colo. 434; Cook County v. Schaffner, 46 111. App. 611; People v. Clark County Sup'rs, 50 111. 213; City of Connersville v. Connersville Hydraulic Co., 86 Ind. 184; Wood v. State, 155 Ind. 1; Campbell v. Polk County, 3 Iowa, 467; Mills County Nat. Bank v. Mills County, 67 Iowa, 697; Benham v. Parish of Carroll, 28 La. Ann. 343; International Bank v. Franklin County, 65 Mo. 105; Knapp v. City of Hoboken, 38 N. J. Law, 371; Raton Waterworks Co. v. Town of Raton, 9 N. M. 70; Gold- smith v. Baker City, 31 Or. 249, 49 Pac. 973; Simmons v. Davis, 18 R. I. 46; Alexander v. Oneida County, 76 Wis. 56; Brown v. School Direct- ors of Jacobs, 77 Wis. 27. sso Davenport v. Dodge County, 105 U. S. 237; Chickaming Tp. v. Carpenter, 106 U. S. 663; State v. Clay County, 46 Mo. 231; Mansfield v. Fuller, 50 Mo. 338; Klein v. Smith County Sup'rs, 58 Miss. 540; Greeley v. Cascade County, 22 Mont. 580; Abernethy v. Town of Medical Lake, 9 Wash. 112. 65i See 227. 538 POWERS. any other manner or for any other purpose. The holder of such warrants is limited in his recovery to the fund existing for their payment. 652 This principle, however, is not applied to the ex- tent that a public corporation will be justified in refusing to levy or collect the taxes or special assessments which form the speci- fied fund. In case of refusal on the part of public officers they can be compelled by mandamus to perform the duties imposed upon them by law in this regard. 653 Neither will a public cor- poration be excused, by a plea of lack of funds, from paying warrants drawn upon a special fund where the moneys in this fund have been illegally withdrawn and used for other pur- poses, 654 or where the public corporation has rendered itself in- 652 Warner v. City of New Or- leans, 167 U. S. 467. Where a mu- nicipality issues warrants payable from a certain fund, it is estopped to set up in defense an action against it on such warrants that it had discharged claims against such fund in excess of the amount col- lected; the maintenance of such fund being practically abandoned. United States v. King, 74 Fed. 493; Wilder v. City of New Orleans, 87 Fed. 843. The holders of special drainage warrants not restricted for their payment to the special fund from which they were originally de- signed to be paid. Bush v. Wolf, 55 Ark. 124; Forbes v. Grand County Com'rs, 23 Colo. 344; Bank of Na- cona v. March (Tex. Civ. App.) 51 S, W. 266; Northwestern Lumber Co. v. City of Aberdeen, 22 Wash. 404. 653 United States v. Macon County Ct., 75 Fed. 259; Warner v. City of New Orleans, 87 Fed. 829; City of New Orleans v. Warner, 175 U. S. 120; Knapp v. City of Hoboken, 38 N. J. Law, 371. In this case the remedy of the warrant holder was held to be by action of debt not by mandamus to compel the enforce- ment of assessments. Theis v. Washita County Com'rs, 9 Okl. 643. The proceeding by mandamus may be the proper one authorized by law and holders of warrants may not have the option to proceed in any other manner to enforce their obli- gations against the corporation. Cit- ing Knox County Com'rs v. Aspin- wall, 24 How. (U. S.) 376; Rock Island County Sup'rs v. United States, 71 U. S. (4 Wall.) 435; City of Davenport v. Lord, 76 U. S. (9 Wall.) 409; Washington County Sup'rs v. Durant, 76 U. S. (9 Wall.) 415; Riggs v. Johnson County, 73 U. S. (6 Wall.) 166; Elliott County v. Kitchen, 77 Ky. (14 Bush) 289; Limestone County Com'rs Ct. v. Rather, 48 Ala. 434; Diggs v. Lob- sitz, 4 Okl. 232; Com. v. Select & Common Councils of Pittsburgh, 34 Pa. 496. Bank of British Columbia v. City of Port Townsend, 16 Wash. 450; Sharp v. City of Mauston, 92 Wis. 629. es* Hockaday v. Chaffee County Com'rs, 1 Colo. App. 362, 29 Pac. 287; Schulenburg & Boeckler Lum- ber Co. v. City of East St. Louis, 63 111. App. 214; Valleau v. New- WARRANTS, ETC. 539 capable of creating such fund in the manner originally in- tended. 655 In the absence of the necessary moneys in the proper fund, no right of action will accrue against the public corpora- tion where the taxes or assessments have been properly levied and collected or remain partially uncollected. It is generally optional with the holder of warrants in case of a refusal to levy taxes for their payment to compel by mandamus the officials to perform their duties or to sue the public corporation. 656 The legal character of different classes or kinds of warrants as bring- ing them within the operation of the statutes of limitation de- pends entirely upon the construction given them by the courts of ton County, 72 Mo. 593. The rule in the text, however, does not apply to warrants issued without authority, and for a debt which the city could not legally contract. Pollock v. Stanton County, 57 Neb. 399; Ayres v. Thurston County, 63 Neb. 96, 88 N. W. 178; Brewer v. Otoe County, 1 Neb. 373; Blackman v. City of Hot Springs, 14 S. D. 497, 85 N. W. 996; State Sav. Bank v. Davis, 22 Wash. 406; New York Se- curity & Trust Co. v. City of Ta- coma, 21 Wash. 303, 57 Pac. 810. The rule applies where funds ap- plicable to the payment of certain warrants have been placed for de- posit in banks subsequently becom- ing insolvent with a resultant loss of such moneys. Quaker City Nat. Bank v. City of Tacoma, 27 Wash. 259, 67 Pac. 710. The city held not generally liable, the remedy of the warrant holder be- ing an action in damages for the misappropriation. ess City of New Orleans v. Warner, 175 U. S. 120; Louisiana Nat. Bank v. Board of Liquidation, 30 La. Ann. 1356. 656 Board of Improvement v. Mc- Manus, 54 Ark. 446; Mills County Nat. Bank v. Mills County, 67 Iowa, 697. "The question is, how is the owner of the warrants to enforce payment? There is no such privity between him and the taxpayers that any action or proceeding can be maintained against them. It is claimed that a demand should be made on the board of supervisors to levy a tax and that no suit can be maintained without such demand. This position cannot be maintained. It is the duty of the county to make the levy without a demand. It might with the same propriety, be claimed that the holder of any other war- rant upon the county must make a demand that a tax be levied to pay his warrant before he can maintain an action. The county has an un- doubted right to make any proper and lawful defense to these war- rants. If it has no defense, the plaintiff is entitled to judgment and to the enforcement of payment by the levy of a tax in obedience to the requirements of the statute. * * * The law contemplates that the own- ers of property benefited by the ditch must pay the cost of its construc- tion and if the plaintiff obtains judg- ment upon the warrants, the method of raising means for its payment is plainly pointed out by statute." Hunter v. Mobley, 26 S. C. 192. 540 POWERS. 23e a state. 657 In actions against public corporations on warrants valid on their face, the presumption of law exists that they were lawfully and legally issued and the burden of establishing their illegality or the fraudulent and illegal character of the claims upon which they wejre based is on the defendant. 858 236. Their payment. Where the power to audit, allow and authorize the issuance of warrants is by law placed in the hands of certain designated officials of the public corporation upon the presentation of a warrant duly issued, other officials have no discretion in regard to its payment; this exists as an imperative duty capable of en- forcement if there are sufficient funds. 659 The fact that the cor- es? Knox County v. Morton (C. C. A.) 68 Fed. 787, construing Rev. St. Mo. 1889, 3195, relating to county warrants. Hintrager v. Richter, 85 Iowa, 222, 52 N. W. 188; Wilson v. Knox County, 132 Mo. 387, 34 S. W. 45, 477; Borough of Port Royal v. Graham, 84 Pa. 426; Leach v. Wil- son County, 68 Tex. 353. ess San Juan County Com'rs v. Oliver, 7 Colo. App. 515, 44 Pac. 362; Everts v. District Tp. of Rose Grove, 77 Iowa, 37; Mountain Grove Bank v. Douglas County, 146 Mo. 42, 47 S. W. 944; Taylor v. Chickasaw County Sup'rs, 74 Miss. 23, 19 So. 834; Freeman v. City of Huron, 10 S. D. 368, 73 N. W. 260. The de- fendant urged on appeal that the plaintiff had not shown the statute not complied with so far as the books of the treasurer were con- cerned. The court said: "The city treasurer is an officer of the city, over whom the warrant holder has no control and for whose neglect to perform his duty he is not respon- sible. If, therefore, the books of the treasurer were not properly kept and the proper entries made there- in, the failure is the failure of the city by its officers, and it cannot take advantage of such omission as against a warrant holder who has done all that the law requires him to do, namely to present his war- rant for payment and have it regis- tered for payment. As it was in fact registered, the court will pre- sume that he paid or tendered the required fee, or that payment of the same was waived by the treasurer." Scott v. School Directors of Arm- strong, 103 Wis. 280, 79 N. W. 239. 659 Keller v. Hyde, 20 Cal. 593; Von Schmidt v. Widber, 105 Cal. 151; Bank of Staten Island v. City of New York, 68 App. Div. 231, 74 N. Y. Supp. 284; Bush v. Geisy, 16 Or. 355; Simmons v. Davis, 18 R. I. 46; Culberson v. Gilmer Bank, 20 Tex. Civ. App. 565, 50 S. W. 195; Collier v. Peacock, 93 Tex. 255, 54 S. W. 1025; Webster T. Douglas County, 102 Wis. 181, 77 N. W. 885, 78 N. W. 451. If a payment of war- rants is marked by haste and with apparent collusion in face of lack of funds to meet them, the officers paying them may be personally lia- ble for the repayment of the money disbursed. 237 WARRANTS, ETC. 541 poration issuing the warrant may be its owner is ordinarily no ground for the refusal of a subordinate board or official to refuse payment. 660 "Where warrants are authorized under law to be issued by a certain designated official body, an order for pay- ment of a certain claim by another court predicated upon a judg- ment rendered by it will be sufficient authority for the payment of a warrant issued upon such judgment. 661 When refunding bonds have been issued to take up outstanding warrants and the bonds are subsequently established as void, the warrants in the meantime having been destroyed, this does not give a holder of such warrants any right of action for damages against the cor- poration for the destruction ; he can recover, however, the full value of the warrants, 662 and this is true where the same state of facts exist except the destruction of warrants and the question of damages. 663 The payment of warrants issued in settlement of a claim subsequently held invalid or of like warrants can be pro- hibited and all officials will be bound by orders of the proper authorities to this effect. 664 The payments of warrants illegally drawn or issued may be enjoined and the warrants directed can- celed by a court of equity upon the complaint of a taxpayer. 865 237. Presentation for payment. As a rule, warrants must be presented to and a demand made for payment of the proper disbursing officer of the corporation. This is necessary that the holder may proceed by mandamus against the official to compel a payment or to bring an actioit based upon them and that interest may commence to run. 666 sec Louisiana Nat. Bank v. Board Davis, 23 Nev. 318; Ter. v. Browne, of Liquidation, 30 La. Ann. 1356. 7 N. M. 568; Frankl v. Bailey, 31 eel United States v. King, 74 Fed. Or. 285, 50 Pac. 186; State v. Walker 493. (Tenn.) 47 S. W. 417; Lane v. Hunt 662 O'Connor v. Parish of East County, 13 Tex. Civ. App. 315. Baton Rouge, 31 La. Ann. 221. ees Andrews v. Pratt, 44 Cal. 309; eesGause v. City of Clarksville, 1 Ackerman v. Thummel, 40 Neb. 95; McCrary, 78, 1 Fed. 353; Deyo v. Crawford v. Noble County Com'rs, Otoe County, 37 Fed. 247; Coffin v. 8 Okl. 450; Dorothy v. Pierce, 27 Or. Kearney County Com'rs, 114 Fed. 373; State v. Metschan, 32 Or. 372, 518; City of Plattsmouth v. Fitz- 41 L. R. A. 692; Savage v. Stern- gerald, 10 Neb. 401. berg, 19 Wash. 679; Webster v. 6C4 polk County v. Sherman, 99 Douglas County, 102 Wis. 181. Iowa, 60; Taylor v. Chickasaw Coun- 66 Warner v. City of New Orleans, ty Sup'rs, 74 Miss. 23; Hayes v. 87 Fed. 829; Grayson v. Latham, 84 542 POWERS. 238 238. Payment; the amount. Public officers have no authority to bind their principal for the payment of more than the face of a warrant although it may be at a discount and the sum realized from its sale at the discount price will bring to the holder a sum less than the bill or account rendered by him which has been approved, audited and allowed by the proper authorities. 667 A warrant issued either by fraud or mistake for an amount in excess of the sum actually due on the account or bill rendered and to pay which it was intended, is valid only for the amount for which it should have been properly issued. 668 Ala. 546; Apache County v. Earth (Ariz.) 53 Pac. 187. The statute of limitation does not commence to run on county warrants until there is a fund in the treasury for their pay- ment. City of Central v. Wilcoxen, 3 Colo. 566; Johnson v. Wakulla Coun- ty, 28 Fla. 720, 9 So. 690; Bodman v. Johnson County, 115 Iowa, 296, 88 N. W. 331; Hubbell v. City of South Hutchinson, 64 Kan. 645, 68 Pac. 52; Oliver v. Board of Liquidation, 40 La. Ann. 321, 4 So. 166; State v. Board of Liquidation, 31 La. Ann. 273; Varner v. Inhabitants of Noble- borough, 2 Me. (2 Greenl.) 121; Ferguson v. City of St. Louis, 6 Mo. 499; Wilson v. Knox County (Mo.) 28 S. W. 896; Shipley v. Hacheney, 84 Or. 303, 55 Pac. 971; Freeman v. City of Huron, 10 S. D. 368, 73 N. W. 260. "The next contention of ap- pellants we shall notice is that the court erred in allowing interest on these warrants from the date of their presentation and registration. In this we think the court ruled cor- rectly. The warrants were payable upon presentation for payment; and payment being refused for want of funds, the holder was thereafter en- titled to interest under the provi- sion of sections 3721, 4746 Comp. Laws, until the treasurer set apart funds to pay them, as provided by section 1674, Comp. Laws. This and the preceding section clearly assume that such warrants bear interest after presentation and registration." San Patricio County v. McClane, 58 Tex. 243; Bardsley v. Sternberg, 18 Wash. 612; State v. Young, 22 Wash. 547. 667 Morgan v. District of Columbia, 19 Ct. Cl. 156; Shirk v. Pulaski Coun- ty, 4 Dill. 209, Fed. Cas. No. 12,794; Dorsey County v. Whitehead, 47 Ark. 205; Foster v. Coleman, 10 Cal. 278; Clark v. City of Des Moines, 19 Iowa, 199; Leavenworth County Com'rs v. Keller, 6 Kan. 510; Bauer v. Frank- lin County, 51 Mo. 205; Cleveland County Com'rs v. Seawell, 3 Okl. 281; Municipal Security Co. v. Baker County, 33 Or. 338, 54 Pac. 174; Ar- nott v. City of Spokane, 6 Wash. 442; Million v. Soule, 15 Wash. 261. ees Foster v. Coleman, 10 Cal. 278; People v. State Treasurer, 40 Mich. 320; Chandler v. City of Bay St. Louis, 57 Miss. 326; Erskine v. Steele County, 4 N. D. 339, 60 N. W. 1050, 28 L. R. A. 645; Arnott v. City of Spokane, 6 Wash. 442, 33 Pac. 1063. 239 WARRANTS, ETC. 543 239. Manner of payment. In the absence of restrictive legislation, a public corporation or the state may issue its warrants payable in gold coin of the United States or other legal tender. It may also make its war- rants as well as other due bills or orders receivable by the public corporation issuing them in payment of debts due such corpora- tion. 669 Pursuant, therefore, to such provisions, the holder of warrants may insist upon their payment in the manner and mode prescribed or may compel an acceptance, in accordance with their terms by the public officials, in payment of taxes 670 or other obligations due from him to the corporation. Usually, a public corporation where warrants are at a discount, does not possess the power to issue them at such a rate as to make them a cash equivalent. 671 sea white v. State (Ark.) 11 S. W. 765; State v. Miller, 145 Ind. 598, 44 N. E. 309; Kentucky Chair Co. v. Com., 20 Ky. L. R. 1279, 49 S. W. 197. State treasury warrants not available for the payment of a debt due the state. Long v. McDowell, 21 Ky. L. R. 605, 52 S. W. 812; Al- berts v. Torrent, 98 Mich. 512. A mayor ha no authority to deduct from a valid warrant due an individ- ual a sum illegally received by him from the city. Raton Waterworks v. Town of Raton, 9 N. M. 70, 49 Pac. 898; Lee v. Roberts, 3 Okl. 106. 6To state v. Rives, 12 Ark. 721; Hill v. Logan County, 57 Ark. 400, 21 S. W. 1063; McKibben "v. State, 31 Ark. 46; Lindsey v. Rottaken, 32 Ark. 619, to the contrary, Loftin v. Watson, 32 Ark. 414. Fry v. Reynolds, 33 Ark. 450; How- ell v. Hogins, 37 Ark. 110; Thorpe v. Cochran, 7 Kan. App. 726, 52 Pac. 107; State v. Payne, 151 Mo. 663, 52 S. W. 412; Sheridan v. City of Rah- way, 44 N. J. Law, 587; Western Town-Lot Co. v. Lane, 7 S. D. 1, 62 N. W. 982. "A city undoubtedly may, for its own convenience, make an estimate of the money it may re- quire for each particular city pur- pose; but when it makes its levy, all those various sums must be ag- gregated, and the levy made for the total amount required for general municipal purposes. Of course, if the city makes any levy for bonded indebtedness, for interest, for the payment of any judgments or for any other special purpose authorized by law, the levy may be special as to those purposes. Its general mu- nicipal expenses cannot, however, be divided and subdivided and appro- priations made for specific purposes in advance, so as to cut off the rights of holders of warrants on its general fund, as was attempted to be done in the case at bar. Such a system, if permitted, would in a great meas- ure, repeal the laws of the state. * * * Holders of valid city war- rants have vested rights that can- not be ignored. Payment of such warrants in the manner provided by the law cannot be suspended at the mere will and pleasure of the city council." Town of Marinette v. Oconto Coun- ty Sup'rs, 47 Wis. 216. 7i Clayton v. McWilliams, 49 Miss. 544 POWERS. 240 240. Time of payment. Warrants where not otherwise provided are usually payable on demand. 672 Payment may also be due at a date specified, 673 in the order of their registration with designated public officers, 674 or in 311; Bauer v. Franklin County, 51 Mo. 205. See preceding section. 672 Shelley v. St. Charles County Ct, 21 Fed. 699; United States v. King, 74 Fed. 493; United States v. Macon County Ct., 75 Fed. 259; Peo- ple v. Austin, 11 Colo. 134, 17 Pac. 485; McDonald v. Bird, 18 Cal. 195; Shaw v. Statler, 74 Cal. 258; Phil- lips v. Reed, 109 Iowa, 188; Thorpe v. Cochran, 7 Kan. App. 726, 52 Pac. 107; State v. Burke, 35 La. Ann. 457. Warrants issued in favor of the Louisiana University take precedence of all others drawn on the general fund except those in favor of offi- cers whose salaries are fixed by the constitution; this case also holds that warrants issued by the Louisi- ana board of health are not en- titled to preference of payment out of the general fund, and Klein v. Pipes, 43 La. Ann. 362, holds that warrants issued for the sup- port of the University for the Edu- cation of Negroes should not in payment take precedence. State v. Johnson, 162 Mo. 621, 63 S. W. 390; Morrow v. Surber, 97 Mo. 155; An- drew County v. Schell, 135 Mo. 31; State v. Hortsman, 149 Mo. 290; State v. Allison, 155 Mo. 325; Gree- ley v. Cascade County, 22 Mont. 580, 57 Pac. 274; Esser v. Spaulding, 17 Nev. 289; Raton Waterworks Co. v. Town of Raton, 9 N. M. 70; Shan- non v. City of Huron, 9 S. D. 356; Freeman v. City of Huron, 10 S. D. 368, 73 N. W. 260; La France Fire- Engine Co. v. Davis, 9 Wash. 600; Lorence v. Bean, 18 Wash. 36. A warrant issued in payment of a judgment should not be postponed in favor of other claims or necessary expenses. Bardsley v. Sternberg, 18 Wash. 612. 6T3 Frankford Real-Estate, Trust & Safe-Deposit Co. v. Jackson County (C. C. A.) 98 Fed. 942; Miller Coun- ty v. Gazola, 65 Ark. 353, 46 S. W. 423; Markey v. School Dist. No. 18, 58 Neb. 479, 78 N. W. 932. "The contract and order in question each required the amount therein speci- fied to be paid at a date which had not then arrived. School district officers can contract for the furnish- ing of school houses only with refer- ence to money on hand and at the time available for that purpose. The officers of the school district possessed no authority to make a contract or give a district order pay- able at a future time. This prin- ciple has been frequently stated and applied by this court." Citing School Dist. No. 2 v. Stough. 4 Neb. 360; State v. Sabin, 39 Neb. 570; A. H. Andrews & Co. v. School Dist. of McCook, 49 Neb. 420. 674 Taylor v. Brooks, 5 Cal. 332; McCall v. Harris, 6 Cal. 281; La Forge v. Magee, 6 Cal. 285; First Nat. Bank of Northampton v. Ar- thur, 10 Colo. App. 283, 50 Pac. 738; Shepherd v. Helmers, 23 Kan. 504; First Nat. Bank of Garden City v. Morton County Com'rs, 7 Kan. App. 739, 52 Pac. 580; Monroe v. Craw- ford, 9 Kan. App. 749, 58 Pac. 232; State v. Allison, 155 Mo. 325; O'Don- nell v. City of Philadelphia, 2 Brewst. (Pa.) 481. State v. Campbell, 7 S. D. 568, 240 WARRANTS, ETC. 545 the order of their issuance by number or date. 675 The weight of authority is to the effect that after issue they become a prima facie evidence of indebtedness which cannot be affected by subsequent legislation either as to the time, the mode or man- ner of payment. 676 Where the law contains provisions for their registration or record by certain officials, a failure to properly record or register them does not invalidate the warrants; their validity cannot be destroyed by such failure or neglect. If a certain provision is made or a certain fund is raised for the payment of specific indebtedness represented by them, it is asually not necessary that the fund or provision should be avail- able as an entirety before payment can be commenced. A dis- tribution or payment should be made immediately upon any of the funds becoming available for such purpose provided pay- ment can be properly demanded at such time. 677 This rule is ap- plied to avoid the payment of interest upon warrants demanded and payment of- which is refused, although there may be funds to pay on account. 64 N. W. 1125. In this case the court prepared the following sylla- bus: "Every lawfully issued and valid municipal warrant should be paid in the order of its registra- tion for payment, although the same was issued in payment of an indebt- edness of a prior year." Shannon v. City of Huron, 9 S. D. 356, 69 N. W. 598; Freeman v. City of Huron, 10 S. D. 368, 73 N. W. 260; Stewart v. Custer County, 14 S. D. 155, 84 N. W. 764. 675McCall v. Harris, 6 Cal. 281; Mitchell v. Speer, 39 Ga. 56; La France Fire Engine Co. v. Davis, 9 Wash. 600; Munson v. Mudgett, 15 Wash. 321; Bardsley v. Sternberg, 18 Wash. 612; Potter v. City of New Whatcom, 20 Wash. 589; Eidemiller v. City of Tacoma, 14 Wash. 376, 44 Pac. 877; Hull v. Ames, 26 Wash. 272, 66 Pac. 391. "6 United States v. Macon County Ct., 45 Fed. 400; Read v. Mississippi Abb. Corp 35. County, 69 Ark. 365, 63 S. W. 807; State v. Barret, 25 Mont. 112, 63 Pac. 1030; Shipley v. Hacheney, 34 Or. 303, 55 Pac. 971. 67T United States v. Macon County Ct., 75 Fed. 259; Deals v. Evans, 10 Cal. 459; Day v. Callow, 39 Cal. 593. A judgment authorizing a county treasurer to satisfy warrants partially paid out of a special fund from moneys that might thereafter come into such fund is to this ex- tent erroneous. Jordan v. Hubert, 54 Cal. 260; First Nat. Bank of Northampton v. Arthur, 10 Colo. App. 283, 50 Pac. 738; State v. Windle, 156 Ind. 648, 59 N. E. 276; Klein v. Pipes, 43 La. Ann. 362; Sheidley v. Lynch, 95 Mo. 487, 8 S. W. 434; Haydon v. Ormsby Coun- ty Sup'rs, 2 Nev. 371; State v. Grant, 31 Or. 370, 49 Pac. 855. A partial payment of a warrant can- not be compelled. POWERS. 241 241. To whom payable. Warrants although not considered negotiable instruments ac- cording to the common rules of law are usually assignable, and when properly assigned and endorsed they become, in the hands of the holder subject to prior equities, an enforceable demand by him against the corporation. 678 The assignee of a warrant 78 City of Nashville v. Ray, 86 U. S. (19 Wall.) 468; Ouachita Coun- ty v. Wolcott, 103 U. S. 559; Watson T. City of Huron (C. C. A.) 97 Fed. 449; Bayerque v. City of San Fran- cisco, McAll. 175, Fed. Cas. No. 1,137; Crawford County v. Wilson, 7 Ark. 214; People v. El Dorado Coun- ty Sup'rs, 11 Cal. 170. "County warrants acquire no greater validity in the hands of third parties than they originally poesessed in the hands of the first holder, no matter for what consideration they may have been transferred or in what faith they may have been taken. If illegal when issued, they are illegal for all time. The protection which attends the purchaser of negotiable paper before maturity, without no- tice of the illegality of its consid- eration, does not extend to like purchasers of county warrants. Were this otherwise, it is easy to see that the county would be en- tirely at the mercy of the board." Tippecanoe County Com'rs v. Cox, 6 Ind. 403; Thayer v. City of Boston, 36 Mass. (19 Pick.) 511; Hyde v. Franklin County, 27 Vt. 185; Aver- ett's Adm'r v. Booker, 15 Grat. (Va.) 163; People v. Hall, 8 Colo. 485; Cook County v. Lowe, 23 111. App. 649. County warrants drawn con- trary to Starr ft C. Ann. St. 111. p. 2460, held void. Garvin v. Wiswell, 83 111. 215; Clark v. Polk County, 19 Iowa, 248. "On the contrary if such warrants are held non-negotiable, it is com- pletely in the power of all persons to protect themselves from loss, since the law and the public records necessarily afford to every person the means of ascertaining the facts as to the legality and validity of ev- ery warrant issued, so, that, by such non-negotiability, both the counties and individuals are abund- antly and fully protected. There is no validity or force in the assump- tion that by such ruling the credit of the counties would be impaired and their necessary municipal op- erations be impeded. No honest per- son would refuse to labor or furnish material to a county because he could only receive a fair and just compensation, nor because by Judi- cial construction, it was furnished with a coat of mail guarding it against the assaults and machina- tions of the dishonest. A warrant properly issued, if not as readily sold, would yield more value to the seller when sold. In view of this concurrence of principle, authority and public policy We have no hesi- tation in holding that county war- rants are not negotiable at the law merchant. They are, of course, as- signable under our statute, and suit may be brought thereon in the name of the assignee, but subject to any defense which might be made as against the payee." McCormick v. Grundy County, 24 Iowa, 382; Crawford v. Noble Coun- 241 WARRANTS, ETC. 547 may demand payment and sue upon refusal to pay. 070 The man- ner in which the transfer must be made to give the transferee the privileges and rights of his transferor may depend largely upon statutory provisions prescribing the manner in which this shall be done ; 680 otherwise, if the transfer is made in the customary manner for the sale and assignment of paper or articles of like character, it will be sufficient. 881 Public officials cannot draw warrants for the payment of their salaries or personal claims which they may have against the corporation. 682 In an action brought by the holder of a warrant whether the original payee, his assignee or bearer, its presentation and possession by plain- tiff at the time of trial is prima facie evidence of his ownership though it is denied in the pleadings. 683 ty Com'rs, 8 Okl. 450; Heffleman v. Pennington County, 3 S. D. 162; Gibson County v. Rain 79 Tenn. (11 Lea) 20; Leach v. Wilson Coun- ty, 62 Tex. 331; Brown v. School Directors of Jacobs, 77 Wis. 27. Some cases, however, hold to the contrary. See Savage v. Mathews, 98 Ala. 535; Dana v. City & County of San Francisco, 19 Cal. 486; and East Union Tp. v. Ryan, 86 Pa. 459. 6^9 Laughlin v. District of Colum- bia, 116 U. S. 485; Beals v. Evans, 10 Cal. 459; Marshall v. Platte Coun- ty, 12 Mo. 88; State v. Barret, 25 Mont. 112, 63 Pac. 1030. An as- signee of state warrants succeeds to all the rights of his assignor, includ- ing that of demanding and receiving interest. State v. Van Wyck, 20 Wash. 39, 54 Pac. 768; Webster v. Douglas County, 102 Wis. 181, 77 N. W. 885, 78 N. W. 451. See, also, authorities cited in preceding note. aso Savage v. Mathews, 98 Ala. 535; Martin v. City & County of San Francisco, 16 Cal. 285; People v. Gray, 23 Cal. 125. 68i Watson v. City of Huron (C. C. A.) 97 Fed. 449; Crawford County v. Wilson, i ATK. 215; Sweet v. Carv- er County Com'rs, 16 Minn. 106 (Gil. 96) ; Crawford v. Noble County Com'rs, 8 Okl. 450. ssz Cricket v. State, 18 Ohio St. 9. ass Heffleman v. Pennington Coun- ty, 3 S. D. 162. "Appellant's remain- ing point is that, having in his an- swer denied the alleged transfer to an ownership by the respondent, the mere possession of and presentation by respondent at the trial was not sufficient evidence of the assignment and ownership. There being no other evidence as to ownership, there is here no question of pre- ponderance, but simply, did posses- sion of and dominion over these warrants tend to prove title? As possession is usually an incident of ownership, unexplained possession is always some evidence of owner- ship. It may be very slight, and easily overcome but actual posses- sion is a fact, and, in the absence of other facts, it will be presumed to be rightful. These warrants were in form payable to bearer. They were in the possession of and presented by respondent and were received from him without objec- 548 POWERS. 242 242. Miscellaneous forms of indebtedness. A public corporation may, under authority of law, issue, as an evidence of an indebtedness legally incurred, orders, 684 nego- tiable certificates, 686 school orders, 686 or other acknowledgments of a similar character. 687 These miscellaneous forms of indebted- ness when issued without authority are invalid ; 688 but if the cor- poration had the power to make the contract creating the in- debtedness, the payee may then maintain an action for money or things had and received or services rendered. 689 tion. In the absence of any evi- dence whatever tending to question respondent's ownership, or tending to show tha't his absolute posses- sion ought not to support the usual presumption we think his owner- ship was sufficiently maintained un- til attacked by some evidence." 68* McCutchen v. Town of Free- dom, 15 Minn. 217 (Gil. 169); State v. Corzilius, 35 Ohio St. 69; Stoll v. Johnson County Com'rs, 6 Wyo. 231. ess Brown v. Town of Canton, 4 Lans. (N. Y.) 409. ese Whitney v. Inhabitants of Stow, 111 Mass. 368; Edinburg American Land & Mortg. Co. v. City of Mitchell, 1 S. D. 593. ear Bloomfield v. Charter Oak Bank, 121 TL S. 121; Parsel v. Barnes, 25 Ark. 261; In re Certifi- cates of Indebtedness, 18 Colo. 566; Foote v. City of Salem, 96 Mass. (14 Allen) 87; Richardson v. City of Brooklyn, 31 Barb. (N. Y.) 152. ess Bloomfield v. Charter Oak Bank, 121 U. S. 121; Scott's Ex'rs v. City of Shreveport, 20 Fed. 714; Bangor Sav. Bank v. City of Still- water, 46 Fed. 899. In the absence of special statutory authority, a city has no right to issue certificates of indebtedness in negotiable form, even in payment for property which it has authority to buy. City of Lockport v. Gaylord, 61 111. 276; Sullivan v. Highway Com'rs, 114 111. 262. Highway commissioners have no power to issue, under the statute, interest- bearing orders. Citizens' Bank v. Police Jury of Parish of Concordia, 28 La. Ann. 263; Smith v. Madison Parish, 30 La. Ann. 461; Parsons v. Inhabitants of Monmouth, 70 Me. 262; Abbott v. Inhabitants of North Andover, 145 Mass. 484; Smallwood v. Lafayette County, 75 Mo. 450; Town of Hackettstown v. Swack- hamer, 37 N. J. Law, 191; Chosen Freeholders of Hudson County v. Buck, 51 N. J. Law, 155; Smith v. Epping, 69 N. H. 558; Stewart v. Otoe County, 2 Neb. 177; Parker v. Saratoga County Sup'rs, 106 N. Y. 392; Loan & Exch. Bank v. Shealey, 62 S. C. 337; Biddle v. City of Ter- rell, 82 Tex. 335; Exchange Bank of Virginia v. Lewis County, 28 W. Va. 273. 689 In Hitchcock v. City of Gal- veston, 96 U. S. 341, 350, Justice Strong said: "It is enough for them (the plaintiffs) that the city coun- cil have power to enter into a con- tract for the improvement of the sidewalks; that such a contract was made with them; that under it they have proceeded to furnish materials and do work as well as to assume liabilities; that the city has re- 242 WARRANTS, ETC 549 Municipal evidences of indebtedness may be divided into two classes, based upon legal character and characteristics as affected by or depending for validity, in the hands of the original payee or a bona fide holder for value, on the availability, as a defense in an action upon the indebtedness, of equities existing between the payee and the public corporation. These two classes as sug- gested are, first, negotiable bonds or securities, and second, war- rants or other evidences of a similar character. In the case of negotiable bonds and securities, the rule of law is clearly estab- lished that in the hands of a bona fide purchaser for value, equities between original parties are not available as a defense. Warrants, as stated in a preceding section, 690 and all other evi- dences of a similar character are merely prima facie evidences of indebtedness and at no time can the maker of them be pre- vented from setting up as a defense equities that may have orig- inally existed. 691 The miscellaneous forms of indebtedness con- sidered in this section are subject to the rules of law, in regard to their issue, their form and their payment, applying to warrants and discussed in preceding sections. 692 As a matter of conveni- ceived and now enjoys the benefit of what they have done and fur- nished; that for these things the city promised to pay; and that after having received the benefit of the contract the city has broken it. It matters not that the promise was to pay in a manner not authorized by law. If payments cannot be made in bonds because their issue is ultra vires, it would be sanction- ing rank injustice to hold that pay- ment need not be made at all." Bangor Sav. Bank v. City of Still- water, 49 Fed. 721; Morgan v. Town of Guttenberg, 40 N. J. Law, 394. esc See 230, supra. 691 Newell v. School Directors, 68 111. 514 (School order); Hall v. Jackson County, 95 111. 352; Farm- ers' Bank of Frankfort v. Orr, 25 Ind. App. 71, 55 N. E. 35; Wood v. State, 155 Ind. 1; Sheffield School Tp. v. Andress, 56 Ind. 157 (School district promissory note); Abascalv. City of New Orleans, 48 La. Ann. 565 (Floating debt certificate) ; Em- ery v. Inhabitants of Mariaville, 56 Me. 315 (Town orders) ; School Dist. No. 2 v. Stough, 4 Neb. 359 (School district orders) ; Rensselaer County Sup'rs v. Weed, 35 Barb. (N. Y.) 136 (Draft drawn upon county treasurer) ; Loan & Exch. Bank v. Shealey, 62 S. C. 337 (School war- rant) ; Texas Transp. Co. v. Boyd, 67 Tex. 153; Cheeney v. Inhabitants of Brookfield, 60 Mo. 53. Although a warrant if signed by the proper officers prima facie imports validity, its issuance may be shown to be ultra vires. Warrants issued to workmen in payment of wages for engraving illegal scrip are void. 692 People v. Munroe, 100 Gal. 664. A writing purporting to be a sale or assignment of the un- earned salary of a public school 550 POWERS. 242 ence the authorities relating to special forms of indebtedness as distinguished by specific names are collected here. The weight of authority is to the effect that the power to issue an evidence of indebtedness, negotiable in its character, cannot be implied but must be expressly given in some charter, statu- tory or constitutional provision. Under this ruling the making of a promissory note by the officials of a public corporation has been held unauthorized even where the indebtedness is one that the public corporation could legally incur. 693 It is considered teacher is the subject of forgery. Clark County Sup'rs v. Lawrence, 63 111. 32; Kelley v. City of Brook- lyn, 4 Hill (N. Y.) 263; Brown v. Town of Jacobs, 77 Wis. 29; Strong v. District of Columbia, 4 Mackey (D. C.) 242. 93 City of Nashville v. Ray, 86 U. S. (19 Wall.) 468; Merrill v. Town of Monticello, 138 U. S. 673; Chisholm v. City of Montgomery, 2 Woods, 584, Fed. Gas. No. 2,686; White v. City of Rahway, 11 Fed. 853; Bangor Sav. Bank v. City of Stillwater, 49 Fed. 721. Where ne- gotiable certificates of indebtedness issued by a city, and sued upon by the payee have been declared invalid, the payee may maintain an action for money had and received, pro- vided the city had power to make the contract out of which the in- debtedness arose. Ladd v. Town of Franklin, 37 Conn. 53; Bourdeaux v. Coquard, 47 111. App. 254; Coquard v. Vil- lage of Oquawka, 192 111. 355, af- firming 91 111. App. 648; Craig School Tp. v. Scott, 124 Ind. 72; Carter v. City of Dubuque, 35 Iowa, 416. A contract of guaranty is not negotiable and the power of a city to sell negotiable paper held by it does not carry with it as an inci- dent the power to execute a guar- anty thereof. Capmartin v. Police Jury, 23 La. Ann. 190; Breaux v. Iberville Par- ish, 23 La. Ann. 232; Flagg v. Par- ish of St. Charles, 27 La. Ann. 319; State v. Fisher, 30 La. Ann. 514; Newgass v. City of New Orleans, 42 La. Ann. 163. In the absence of express legislative authority, a mu- nicipal corporation has no power to utter unconstitutional obligations to pay money. Parsons v. Inhabitants of Mon- mouth, 70 Me. 262; Robbins v. School Dist. No. 1, 10 Minn. 340 (Gil. 268); Atlantic City Water- works Co. v. Smith, 47 N. J. Law, 473; Halstead v. City of New York, 5 Barb. (N. Y.) 218; Ketchum v. City of Buffalo, 14 N. Y. (4 Kern.) 356; Clark v. Saratoga County Sup'rs, 107 N. Y. 553; Vaughn v. Forsyth County Com'rs, 117 N. C. 429; Stewart v. Otoe County, 2 Neb. 177. In West v. Town of Errol, 58 N. H. 233, it is held that the select- men may without vote of the town negotiate promissory notes upon which the town will be liable on a showing that the money went to its use or that the transaction was rati- fied. In City of Mineral Wells v. Darby (Tex. Civ. App.) 51 S. W. 351, it is held that a municipality may execute its note in payment of a legal obligation. 243 WARRANTS, ETC. 551 desirable to avoid the granting of a power to public corporations which will enable them to issue valid securities or evidences of indebtedness not subject to defense or an investigation of equities which may exist between the parties. 243. The same subject; legal character. The Federal government has the exclusive power of coining money and issuing currency or certificates constituting a legal tender for the payment of debts. Where public corporations have issued certificates of indebtedness, promissory notes or other instruments either in the similitude of bank notes or other usual forms of currency, such have been held illegal in their character and the corporation held without power or authority to issue See the following cases in the Ind. 192; State v. Babcock, 22 Neb. supreme court of the United States 614; Douglass v. Virginia City, 5 discussing the question of the power Nev. 147; Town of Hackettstown v. of a public corporation to issue, Swackhamer, 37 N. J. Law, 191; without express authority, promis- Knapp v. City of Hoboken, 39 N. J. sory notes or negotiable paper: Po- Law, 394; Ketchum v. City of Buf- lice Jury v. Britton, 82 U. S. (15 falo, 14 N. Y. (4 Kern.) 356; Bank Wall.) 566; City of Nashville v. of Chillicothe v. Town of Chilli- Ray, 86 U. S. (19 Wall.) 468; City cothe, 7 Ohio (pt. 2) 31; City of of Nashville v. Lindsey, 86 U. S. Williamsport v. Com., 84 Pa. 487; (19 Wall.) 485; Claiborne County City of Waxahachie v. Brown, 67 v. Brooks, 111 U. S. 400; Town of Tex. 519; Mills v. Gleason, 11 Wis. Concord v. Robinson, 121 IL S. 470; Jones, Ry. Secur. 283; Bur- 165; Kelley v. Town of Milan, 127 roughs, Pub. Secur. p. 185. U. S. 139; Norton v. Town of Dy- Dillon, Mun. Corp. (4th Ed.) ersburg, 127 U. S. 160; Young v. 126, "That merely as incidental to Clarendon Tp., 132 U. S. 340; Hill the discharge of its ordinary cor- v. City of Memphis, 134 U. S. 198; porate functions no municipal or Merrill v. Town of Monticello, 138 public corporation has the right to U. S. 673; Brenham v. German-Amer- invest any instrument it may issue ican Bank, 144 U. S. 173. See, also, whatever its form with that su- the following authorities: Desmond preme and dangerous attribute of v. City of Jefferson, 19 Fed. 483; commercial paper which insulates Gause v. City of Clarksville, 5 Dill, the holder for value from defenses, 165, Fed. Gas. No. 5,276; Law v. and equities which attach to its in- People, 87 111. 385; Hewitt v. Board ception. This point ought to be of Education of Normal School guarded by the courts with the ut- Dist, 94 111. 528; Miller v. Dear- most vigilance and resolution." born County Com'rs, 66 Ind. 162; Simonton, Mun. Bonds, c. II. City of Richmond r. McGirr, 78 552 POWERS. 243 them. 694 Securities of any form intended to circulate as money are held invalid. Legality based upon purpose for which issued follows the rule of law well settled and constantly referred to. If any such mis- cellaneous forms of indebtedness are issued as evidence of an indebtedness incurred for a purpose other than that authorized by law since they are subject to all equities, they will be held in- valid. Public authorities cannot, by the use of an authorized *&* Thomas V. City of Richmond, 79 U. S. (12 Wall.) 349; City of Little Rock v. Merchants' Nat. Bank, 98 U. S. 308, 5 Dill. 299, Fed. Cas. No. 9,455. Here bonds had been issued having the form and appearance of treasury notes which were afterwards redeemed and legal bonds issued in their place. The city failing to pay, a holder brought suit. The city resisted on the ground that the original bonds is- sued in the form of currency were illegal and their surrender was not a valuable consideration for the bonds given in lieu thereof. The court said: "It" can scarcely be doubted that whoever is capable of entering into an ordinary contract to obtain or receive the means with which to build houses or wharves or the like, may, as a general rule, bind himself by an admission of his obligation. The capacity to make contracts is at the basis of the lia- bility. The first liability of the city was disputed by it. It had gone beyond its power, as it said, in making a debt in the form of bank notes. If it had not denied its power, judgment and an execu- tion might have gone against it, and the creditor would have obtained his money. This privilege of nonre- sistance every person retains, and continues to retain. He can recon- sider at any time, and confess and admit what the moment before he denied." In 1874, the City of Little Rock did reconsider. It said: "We will purge the transaction of il- legality. We had the authority to accept from you in satisfaction of amounts received by us for legiti- mate purposes the sums in question. We did so receive and expend for legitimate purposes. We erred in making the payment to you in an objectionable form. We now pay our just and lawful debt by can- celing the bank notes issued by us, and delivering to you obligations in the form of bonds, to which form there is no legal objection." Wesley v. Eells, 90 Fed. 151; Lindsey v. Rottaken, 32 Ark. 619. Where the city has illegally issued "city money," the holder thereof has no remedy. Dively v. City of Cedar Falls, 21 Iowa, 565. But see the same case, 27 Iowa, 227; Goth- ran v. City of Rome, 77 Ga. 582; Cheeney v. Inhabitants of Brook- field, 60 Mo. 53; Allegheny City v. McClurkan, 14 Pa. 81; State v. Car- dozo, 5 S. C. (5 Rich.) 297. Cer- tificates of indebtedness issued by a state treasurer made receivable in payment of taxes or other dues to the state, not held bills of credit within the sense of that term as used in the Constitution of the 245 WARRANTS, ETC. 553 instrument, create an indebtedness for an illegal purpose which will be binding upon the corporation. 695 244. Form and phraseology. The law takes into consideration at all times the bona fides of the parties and the relative condition and circumstances at- tending the character of the corporation and the issuing of the particular indebtedness. Where the public corporation author- ized is what may be termed a public quasi corporation and where the officers of such corporation are not presumed to have the same degree or extent of intelligence, experience and learning as that, which it is presumed similar officers of a higher grade of corporation may have acquired or possess, the law will consider such circumstances or conditions and will hold an instrument valid issued by them which may be technically defective in its form but which substantially complies with the law authorizing its issue. But the question of the payment aside from mere form or execution of such instruments depends upon the principles considered in preceding sections. At all times, questions based upon equities existing between the original parties can be raised and payment or nonpayment depend upon their determination. 698 245. Mode and time of payment. The manner of payment, 697 the time, 698 the fund 699 from which payable, and the rights of parties holding such instruments United States. See, also, author!- North Bergen v. Eager, 41 N. J. ties cited, 233. Law, 184. ess Clark v. City of Des Moines, ear Allen v. McCreary, 101 Ala. 19 Iowa, 199, 87 Am. Dec. 423; 514; Armstrong v. Truitt, 53 Ark. Merkel v. Berks County, 81% Pa. 287; Marshall v. City of San An- 505; Isaacs v. City of Richmond, 90 tonio (Tex. Civ. App.) 63 S. W. Va. 30. 138. ese Clark y. City of Des Moines, 698 Owen v. Lincoln Tp., 41 Mich. 19 Iowa, 199, 87 Am. Dec. 423; City 415. Notes issued by a city not hav- of New Orleans v. Strauss, 25 La. ing been presented for redemption Ann. 50; Chandler v. City of Bay within the time prescribed by the St. Louis, 57 Miss. 326; Cheeney act, the city is not under any obli- v. Inhabitants of Brookfield, 60 Mo. gation in law or equity to redeem 53; Knapp v. City of Hoboken, 38 them. N. J. Law, 371; Inhabitants of Brewer v. Otoe County, I Neb. 554 POWERS. 246 whether the original payee or his assignee, 700 all depend upon the principles sufficiently discussed. VI. THE POWEB TO CONTRACT. 246. In general. The discussion of the power of a public corporation to contract in this and succeeding sections will be confined to certain pecu- liarities and rules applying to and controlling the making of con- tracts by such corporations. The general principles of law re- garding contracts, their, form, execution and enforcement, will not be considered except as they may be incidentally treated. 373. In Nebraska it has been held that one receiving a warrant in which no time of payment is fixed takes it with the expectation, if there are no available funds in the treasury, of waiting until the money can be raised in the ordinary way. Miller v. City of Lynchburgh, 20 Grat. (Va.) 330; Terry v. City of Milwaukee, 15 Wis. 490. An order drawn on the city treasurer direct- ing him "to pay," no date of pay- ment being mentioned, imports that the order was payable on demancl. Packard v. Town of Bovina, 24 Wis. 382. A town is not liable, on an order drawn against its treas- urer, until after demand and re- fusal of payment. 9Meath v. Phillips County, 108 U. S. 553; Mobile County v. Powers, 103 Ala, 207; Allen v. Watts, 88 Ala. 497; Mitchell v. Speer, 39 Ga. 56; Gamble v. Clark, 92 Ga. 695; Board of Education v. Foley, 88 111. App. 470 (School district war- rants) ; Tobin v. Emmetsburg Tp., 52 Iowa, 81; District Tp. of Coon v. Board of Directors of Providence, 52 Iowa, 287; Mills County Nat. Bank v. Mills County, 67 Iowa, 697, 25 N. W. 884. Suit may be brought without first requesting the levy of a tax to replenish the particular fund out of which they are payable. Hopper v. Inhabitants of Union Tp., 54 N. J. Law, 243, 24 Atl. 387. Certificates of indebtedness for local improvements. Wyoming County v. Bardwell, 84 Pa. 104; Bank of Spring City v. Rhea Coun- ty (Tenn.) 59 S. W. 442; Terry v. City of Milwaukee, 15 Wis. 490. School orders are evidences of in- debtedness, upon which, if payment is refused by the city treasurer for want of funds, an action will lie against the city. TOO Terrell v. Town of Colebrook, 35 Conn. 188. The assignee of an authorized note can recover from the town. Ladd v. Town of Frank- lin, 37 Conn. 53. A town promissory note held void in the hands of a purchaser for value who took it after the fact of the failure of the contract had been established. Peo- ple v. Clark County Com'rs, 50 111. 213; National State Bank v. Inde- pendent Dist. of Marshall, 39 Iowa, 490; City of Springfield v. Weaver (Mo.) 37 S. W. 509; Flemming v. City of Hoboken, 40 N. J. Law, 270; Eaton v. Manitowoc County Sup'rs, 40 Wis. 668. 246 POWER TO CONTRACT. 555 A public corporation, it must be remembered, is first an arti- ficial person, and second an artificial person of such a character that, as compared with others, its powers are still further re- stricted and limited. This principle arises from the fact, so often repeated, that a public corporation is a governmental agent, one organized for the benefit and advantage of the community at large without special reference to any individual, family or class. The right to contract is one of the powers usually conferred upon public corporations through charter, 701 statutory, 702 or consti- tutional 703 provisions as construed and denned by court decisions. The tendency of the courts is to confine the exercise of corporate powers strictly to such as are clearly given, and following this rule the power to contract, of a particular public corporation of whatever class, will be determined not by the application of gen- eral rules or principles of law but by the specific right given to such corporation in some grant of legal authority. Public cor- porations have only such rights and powers as are especially granted them or absolutely necessary to carry into effect the rights and powers so granted. This rule applies with its full force to the making of contracts, 704 therefore, we find many cases where the legality of the contract, as executed by a public eor- 701 City of Memphis v. Brown, 87 Improvements Act, 6, fixing time U. S. (20 Wall.) 289; Ex parte City for commencement and completion of Birmingham, 116 Ala. 186, 22 So. of street improvement work. 454; Hall v. Cockrell, 28 Ala. 507; Nelson v. City of La Porte, 33 Ind. Zottman v. City & County of San 258; Stidger v. City of Red Oak, Francisco, 20 Cal. 96; Covington & 64 Iowa, 465; Swift v. Inhabitants M. R. Co. v. City of Athens, 85 Ga. of Falmouth, 167 Mass. 115; Rum- 367; Goodrich v. City of Detroit, sey Mfg. Co. v. Inhabitants of Schell, 12 Mich. 279; Rae v. City of Flint, 21 Mo. App. 175; City of Lexington 51 Mich. 526; Kelly v. Broadwell, v. Lafayette County Bank, 165 Mo. 3 Neb. Unoff. 617, 92 N. W. 643; 671; Chamberlain v. City of Ho- Kernitz v. Long Island City, 50 boken, 38 N. J. Law, 110; Hubbard Hun (N. Y.) 428; Francis v. City v. Norton, 28 Ohio St. 116; Black- of Troy, 74 N. Y. 338, reversing 10 burn v. Oklahoma City, 1 Okl. 292. Hun, 515; City of Buffalo v. Bet- The contracts of a de facto cor- tinger, 76 N. Y. 393; Noel v. City poration can be enforced. Town of of San Antonio, 11 Tex. Civ. App. Levis v. Black River Imp. Co., 105 580, 33 S. W. 263. Wis. 391, 81 N. W. 669. 702 Berry v. Mitchell, 42 Ark. 243; -oa state v. Hogan, 22 Mont. 384. Santa Rosa Lighting Co. v. Wood- The approval by the governor and ward, 119 Cal. 30; Ramish v. Hart- treasurer necessary to the validity well, 126 Cal. 443. Construing Street of a contract under Const, art. 5, 556 POWERS. poration, depends upon a local construction of some legal pro- vision under which the right to contract is claimed. 705 A public corporation may, in the ordinary course of the exercise of its powers, enter into contracts pursuant to the authority suggested above, and necessary to the proper management and regulation of its finances and governmental affairs. 706 Assuming the ex- 30, and Pol. Code, 710. Ellis v. City of Cleburne (Tex. Civ. App.) 35 S. W. 495. 70* City of Mobile v. Moog, 53 Ala. 561; City of Oakland v. Carpentier, 13 Cal. 540; City of New London v. Brainard, 22 Conn. 552; Jackson Tp. v. Barnes, 55 Ind. 136; City of Leavenworth v. Rankin, 2 Kan. 357; Louisiana State Bank v. Orleans Nav. Co., 3 La. Ann. 294. The right of municipal officers to enter into a contract of suretyship denied as not being derived from any express authority or from any general au- thority under the claim of necessity, convenience or public interest. Patterson v. City of New Orleans, 20 La. Ann. 103; Roberts v. City of Cambridge, 164 Mass. 176; Mayo v. Dover & P. V. Fire Co., 96 Me. 539; Ketchum v. City of Buffalo, 14 N. Y. (4 Kern.) 356; In re Board of Water Com'rs, 176 N. Y. 239; Faw- cett v. Town of Mt. Airy, 134 N. C. 125, 45 S. E. 1029; City of Bren- ham v. Brenham Water Co., 67 Tex. 542. T05 Union Coal Co. v. City of La Salle, 34 111. App. 93, affirmed in 136 111. 119, 26 N. E. 506, 12 L. R. A. 326, determining the right of a municipality to contract for the mining of coal under its streets. Challiss v. Parker, 11 Kan. 394; Webb City & C. Waterworks Co. v. Webb City, 78 Mo. App. 422; Wood- side Water Co. v. City of Long Island City, 23 App. Div. 78, 48 N. Y. Supp. 686; Erwin v. Town of Richmond, 42 Vt. 557. foe American Stave & Cooperage Co. v. Butler County, 93 Fed. 301; City of Memphis v. Brown, 11 Am. Law Reg. (N. S.) 629; McBean v. City of Fresno, 112 Cal. 159, 31 L. R. A. 794; City of Rome v. Cabot, 28 Ga. 50 (Contract for water- works) ; City of McPherson v. Nichols, 48 Kan. 430 (Care of sick); Bietry v. City of New Orleans, 24 La. Ann. 21; State v. Natal, 41 La. Ann. 887; Conery v. New Orleans Waterworks Co., 41 La. Ann. 910. The securing of a water supply held a legitimate purpose of a contract. Willard v. Inhabitants of New- buryport, 29 Mass. (12 Pick.) 227; Hale v. Houghton, 8 Mich. 458; St. Louis Hospital Ass'n v. City of St. Louis, 15 Mo. 592 (Care of insane) ; Robinson v. City of St. Louis, 28 Mo. 488; State v. Fortinberry, 54 Miss. 316; City of Newark v. Bon- nel, 57 N. J. Law, 424, 31 Atl. 408; Tucker v. Virginia City, 4 Nev. 20. Contract for care of indigent sick at private hospital held good. Utica Water-works Co. v. City of Utica, 31 Hun (N. Y.) 426. Contract with private corporation for water sup- ply held void. Reynolds v. City of Albany, 8 Barb. (N. Y.) 597. The power to provide furniture for a public build- ing includes the right to purchase a portrait of the governor of the state as an ornament for the wall. 246 POWER TO CONTRACT. 557 istence of a legal authority for the making of a contract it does not necessarily follow that in all cases contracts executed are valid. The purpose or end of the contract may be one in further- ance of an act which the corporation is prohibited by general principles or specific restrictions of law from doing as not com- ing within the scope of the objects or the purpose for which it was incorporated. 707 Aid, donations or assistance rendered pri- Harlem Gas Light Co. v. City of New York, 33 N. Y. 309. Contracts for the lighting of public buildings and streets held valid. Pullman v. City of New York, 54 Barb. (N. Y.) 169; Reynolds v. Stark County Com'rs, 5 Ohio, 204; City of Cincin- nati v. Cameron, 33 Ohio St. 336; Town of Royalton v. Royalton & W. Turnpike Co., 14 Vt. 311. Contract for constructing roads. Jackman v. Town of New Haven, 42 Vt. 591; Miller v. City of Milwaukee, 14 Wis. 642. Construction of a breakwater. See, also, the following cases with- holding the power, the purpose of the contract not being in further- ance of the public welfare or not coming within the scope of powers expressly granted or those absolute- ly necessary to carry such into ef- fect: Burrill v. City of Boston, 2 Cliff. 590, Fed. Cas. No. 2,198. Se- curing volunteers for the army. The Maggie P., 25 Fed. 202. Not a pub- lic duty to pump out and raise boats which sink at public levees. Hamilton v. City of Shelbyville, 6 Ind. App. 538; City of Peru v. Glea- son, 91 Ind. 568. Contract for main- tenance of private drain. Penley v. City of Auburn, 85 Me. 278, 21 L. R. A. 657; Gamble v. Village of Wat- kins, 7 Hun (N. Y.) 448. The pub- lic entertainment of a party of news- paper representatives. Sillcocks v. City of New York, li Hun (N. Y.) 431. A city is not liable for gold medals furnished each of the members of the city council,' the court holding that such a con- tract was not for an object essen- tially necessary to corporate exist- ence and further was not permitted by nor within the power of the mu- nicipality to make. Waterbury v. City of Laredo, 68 Tex. 565. Ferry contract. The same rule will apply to all those attempts of a public corpora- tion to enter into contracts which abridge or restrict it in the per- formance of its proper duties to- ward the public or which in any way control or embarrass its legis- lative powers and duties. See the following cases: Higgins v. City of San Diego, 118 Cal. 524; City of New Haven v. New Haven & D. R. Co., 62 Conn. 252, 18 L. R. A. 256; East St. Louis Gas Light & Coke Co. v. City of East St. Louis, 47 111. App. 411; Long v. City of Duluth, 49 Minn. 280; Flynn v. Lit- tle Falls Electric & Water Co., 74 Minn. 180; City of Jackson v. Bow- man, 39 Miss. 671; Brick Presby- terian Church v. City of New York, 5 Cow. (N. Y.) 538; Britton v. City of New York, 21 How. Pr. (N. Y.) 251; City of New York v. Second Ave. R. Co., 32 N. Y. 261; Colum- bus Gas Light & Coke Co. v. City of Columbus, 50 Ohio St. 65, 19 L. R. A. 510; City of Wellston v. Mor- gan, 59 Ohio St. 147; Waterbury v. City of Laredo, 68 Tex. 565. TO- Parsons Y. Inhabitants of 558 POWERS. 247 vate individuals in the advancement of private enterprises or purposes are invariably prohibited by law. Public means or agencies cannot be used for the advancement of private inter- ests. 708 247. The implied power to contract. The implied power to contract on the part of a public corpora- tion does not exist except so far as may be necessary to carry into effect those powers and rights which have been by law ex- pressly granted. This rule precludes, except in exceptional cases, the existence of an implied or discretionary power to contract. 709 The law, however, presumes that the authority exists to contract in the manner and for the purpose designated. 710 The principle that there cannot exist an implied power to make a contract must be distinguished, however, from the one that where the authority exists in the absence of an express contract when the public cor- poration has received services or goods of value, an implied con- tract will be held to exist, sufficient to enable the party rendering the services or supplying the articles to recover their reasonable value. 711 If the lack of authority is questionable or the contract Goshen, 28 Mass. (11 Pick.) 396; ford Elec. Light Co., 65 Conn. 324; Stetson v. Kempton, 13 Mass. 272; City of Alton v. Mulledy, 21 111. 76; Norton v. Mansfield, 16 Mass. 48; Root v. City of Topeka, 63 Kan. Brick Presbyterian Church v. City 129, 65 Pac. 233; Smith v. City of of New York, 5 Cow. (N. Y.) 538. Nashville, 72 Tenn. (4 Lea) 69; See authorities cited 246, note Dolloff v. Inhabitants of Ayer, 162 707, supra. Mass. 569; New Jersey Car Spring 708 Sutherland-Innes Co. v. Vil- & Rubber Co. v. Jersey City, 64 N. lage of Evart (C. C. A.) 86 Fed. J. Law, 544; City of Wellston v. 597; Park v. Modern Woodmen of Morgan, 65 Ohio St. 219; Spring- America, 181 111. 214. See, also, field Mill. Co. v. Lane County, 5 Or. 145 et seq.; 172 et seq; 412 et 265; Carolina Nat. Bank v. State, seq. 60 S. E. 465. 709 Burrill v. City of Boston, 2 TIO City of Newport News v. Pot- Cliff. 590, Fed. Cas. No. 2,198; City ter (C. C. A.) 122 Fed. 321; City of Litchfield v. Ballou, 114 U. S. of Chicago v. Peck, 196 111. 260. 190; Berlin Iron Bridge Co. v. City TH Steele County v. Erskine (C. of San Antonio, 62 Fed. 882; Gil- C. A.) 98 Fed. 215, affirming 87 Fed. lette-Herzog Mfg. Co. v. Canyon 630; City of Austin v. Bartholo- County, 85 Fed. 396; Town of New- mew, 107 Fed. 349; Fernald v. Town port v. Batesville & B. R. Co., 58 of Oilman, 123 Fed. 797; Garrison Ark. 270; City of Hartford v. Hart- v. City of Chicago, 7 Biss. 480, Fed. 247 POWER TO CONTRACT. 559 Gas. No. 5,255; Brush Electric Light & Power Co. v. City Council of Montgomery, 114 Ala. 433; Capital Gas Co. v. Young, 109 Cal. 140, 29 L. R. A. 463; Callaway v. City of Milledgeville, 48 Ga. 309; Seagraves v. City of Alton, 13 111. 366; Tubbs v. City of Maquoketa, 32 Iowa, 564; Turner v. Cruzen, 70 Iowa, 202; Fouke v. Jackson County, 84 Iowa, 616; Clinton School Tp. v. Lebanon Nat. Bank, 18 Ind. App. 42, 47 N. E. 347; Clark School Tp. v. Grossius, 20 Ind. App. 322, 50 N. E. 771; Condran v. City of New Orleans, 43 La. Ann. 1202; Parks v. Inhabitants of Waltham, 120 Mass. 160; Carey v. City of East Saginaw, 79 Mich. 73 ; Methodist Episcopal Church South v. City of Vicksburg, 50 Misc. 601; Bryson v. Johnson County, 100 Mo. 76; State v. City of St. Louis, 174 Mo. 125, 61 L. R. A. 593; Tucker v. Virginia City, 4 Nev. 20; Rider v. City of Portsmouth, 67 N. H. 298; Little v. Union Tp., 40 N. J. Law, 397; Taylor v. City of Lamb'ert- ville, 43 N. J. Eq. 107; Leonard v. Long Island City, 65 Hun, 621, 20 N. Y. Supp. 26; Port Jervis Water Works Co. v. Village of Port Jer- vis, 71 Hun, 66, 24 N. Y. Supp. 497; People v. Grout, 79 App. Div. (N. Y.) 61; Kramrath v. City of Albany, 127 N. Y. 575; Memphis Gas Light Co. v. City of Memphis, 93 Tenn. 612; Thomson v. Town of Elton, 109 Wis. 589. See, also, cases cited in 259. But see Argent! v. City of San Francisco, 16 Cal. 255; Zottman v. City & County of San Francisco, 20 Cal. 96; City of Alton v. Mulledy, 21 111. 76; Huntington County Com'rs v. Boyle, 9 Ind. 296; Trus- tees of Belleview v. Hohn, 82 Ky. 1; Dolloff v. Inhabitants of Ayer, 162 Mass. 569; City of Baltimore v. Poultney, 25 Md. 18; French v. City of Auburn, 62 Me. 452; Boston Elec. Co. v. City of Cambridge, 163 Mass. 64; City of Jeffersonville v. Steam Ferryboat John Shailcross, 35 Ind. 19; Tucker v. City of Grand Rap- ids, 104 Mich. 621; Crutchfield v. City of Warrensburg, 30 Mo. App. 456; Virginia City Gas Co. v. Vir- ginia City, 3 Nev. 320. McDonald v. City of New York, 68 N. Y. 23. "It is plain that if the restriction put upon municipali- ties by the legislature for the pur- poses of reducing and limiting the incurring of debt and the expendi- ture of the public money may be removed upon the doctrine now con- tended for (that is, that the defend- ant having appropriated the ma- terials of the plaintiff and used them, is bound to deal justly and pay him the value of them,) there is no legislative remedy for the evils of municipal government which of late have excited so much atten- tion and painful foreboding. Re- strictions and inhibition by statute are practically of no avail if they can be brought to naught by the un- authorized action of every official of lowest degree, acquiesced in or not repudiated by his superiors. * * * The views here set forth are not to be extended beyond the facts of the case. It may be that where a municipality has come into the possession of the money or the property of a person without his voluntary intentional action concur- ring therein, the law will fix a lia- bility and imply a promise to repay or return it. Thus money paid by mistake, money collected for an illegal tax or assessment, property taken and used by an official as that of the city when not so in such cases it may be that the stat- 560 POWERS. 2,9 not void on its face, the right will be presumed and the public corporation may enter into a contract and incur a liability for its breach. 712 248. Ultra vires contracts. A public corporation may do an act in excess of or beyond its lawful authority; such an act is termed ultra vires. 713 A con- tract made by such a corporation may be ultra vires and there- fore incapable of enforcement because of a lack of authority, an unlawful result or purpose or because in violation of some pro- vision of paramount law, namely, the constitution of the United States or of a particular state within which the corporation may be located. These questions will be considered in succeeding sections. 71 * 249. For want of authority. A public corporation is, as already suggested, an artificial per- son and as such capable of doing such acts and exercising such powers only as may be conferred upon it by the charter of its iite will not act as an inhibition. The statute may not be carried fur- ther than its intention, certainly not further than its letter. Its pur- pose is to forbid and prevent the making of contracts by unauthor- ized official agents for supplies for the use of the corporation. This opinion goes no further than to hold that where a person makes a con- tract with the city of New York for supplies to it without the re- quirements of the charter being ob- served, he may not recover the value thereof upon an implied lia- bility." Keane v. City of New York, 88 App. Div. (N. Y.) 542; People v. Phillips, 88 App. Div. (N. Y.) 560; and Salsbury v. City of Philadel- phia, 44 Pa. 303. 712 The Maggie P., 25 Fed. 202; Gillette-Herzog Mfg. Co. v. Canyon County, 85 Fed. 396; Ogden City v. Weaver, 108 Fed. 564; Brown v. Board of Education of Pomona, 103 Cal. 531; City of Chicago v. Peck, 196 111. 260; Town of Gosport v. Pritchard, 156 Ind. 704; City of Louisville v. Gosnell, 22 Ky. L. R. 1524, 60 S. W. 410; 61 S. W. 470. Tis City of Mobile v. Moog, 53 Ala. 561. The invalidity of con- tracts because ultra vires is more strictly maintained in favor of mu- nioipal corporations than private corporations. 71* Brick Presbyterian Church Corp. v. City of New York, 5 Cow. (N. Y.) 538. Municipal corpora- tions have no power to make con- tracts which will embarrass or con- trol their legislative powers and du- ties. City of New York v. Second Ave. R. Co., 32 N. Y. 261. See, also, 246. 249 POWER TO CONTRACT. 561 creation or as are necessarily implied to carry into effect pow- ers directly granted. The legal authority to execute a con- tract, therefore, lies at the basis of its validity; this may be found in charter, statutory or constitutional provisions and the absence of such authority acts as a limitation upon the right of the public corporation to contract. Contracts entered into with- out such authority or beyond the power of the corporation are necessarily void. 715 Persons dealing with public corporations 715 Hitchcock v. City of Calves- the county attorney unauthorized, ton, 96 U. S. 341. A contract partly Pleasant View Tp. v. Shawgo, 54 lawful and partly unlawful if sep- Kan. 742; Gurley v. City of New arable can be enforced to the extent Orleans, 41 La. Ann. 75. Contracts that it is lawful. held ultra vires which provide for Manhattan Trust Co. v. City of the performance of public duties by Dayton (C. C. A.) 59 Fed. 327; private persons employed for such Erskine v. Steele County, 87 Fed. purpose by the city, nor can the duty 630; City of Ft. Scott v. W. G. Eads imposed by statute on one officer Brokerage Co. (C. C. A.) 117 Fed. ue transferred to another officer by 51; Higgins v. San Diego Water the municipality. Co., 118 Cal. 524, 45 Pac. 824, 50 Greenough v. Inhabitants of Wake- Pac. 670; Colusa County v. Welch, field, 127 Mass. 275. The payment 122 Cal. 428. A lobbying contract of salaries due members of a pri- held invalid. vate fire organization unauthorized. House v. Los Angeles County, 104 Westminster Water Co. v. City of Cal. 73; Contra Costa Water Co. v. Westminster, 98 Md. 551, 56 Atl. Breed, 139 Cal. 432; Heublen v. 990; Lamson v. City of Marshall, City of New Haven, 75 Conn. 545; 133 Mich. 250, 95 N. W. 78; Coit City Council of Dawson v. Dawson v. City of Grand Rapids, 115 Mich. Water-Works Co., 106 Ga. 696; Val- 493. A contract separable in its paraiso v. Valparaiso City Water parts can be enforced as to those Co., 30 Ind. App. 316, 65 N. E. 1063; which are valid. City of Chaska Carter v. City of Dubuque, 35 Iowa, v. Hedman, 53 Min. 525; Sang v. 416; Marion Water Co. v. City of City of Duluth, 58 Minn. 81. Marion, 121 Iowa, 306, 96 N. W. Grannis v. Blue Earth County 883; City of Ft. Wayne v. Lehr, 88 Com'rs, 81 Minn. 55. The employ- Ind. 62. The employment of pri- ment of outside persons to perform vate persons to perform public du- public services held unauthorized, ties held ultra vires. Nicholasville So held in the collection of back Water Co. v. Councilmen of Nichol- taxes. Saxton v. City of St. Joseph, asville, 18 Ky. L. R. 592, 36 S. W. 60 Mo. 153; City of Unionville v. 549; South Covington Dist. v. Ken- Martin, 95 Mo. App. 28, 68 S. W. ton Water Co. (Ky.) 78 S. W. 420. 605; State v. Butler, 178 Mo. 272, Waters v. Trovillo, 47 Kan. 197. 77 S. W. 560; Barber Asphalt Pav- The employment of counsel to try ing Co. v. Hunt, 100 Mo. 22, 8 JU a case properly to be conducted by R. A. 110. The possession of the Abb. Corp 36. $62 POWERS. 249 are charged with notice of their right to contract upon the sub- ject-matter and in the manner contemplated, 716 or of the legal authority of public officials to act on behalf of their principal. 717 The acceptance of work under a contract void for lack of author- ity does not usually validate it. 718 exclusive right to use a patented Mich. 571, 78 N. W. 660; State v. article by the contractor does not Minnesota Transfer R. Co., 80 Minn, necessarily make a contract invalid. 108, 50 L. R. A. 656; Jewell Baiting See, also, Verdin v. City of St. Louis, Co. v. Bertha, 91 Minn. 9, 97 N. 131 Mo. 26. W. 424; Perkinson v. City of St. City of St. Louis v. Davidson, Louis, 4 Mo. App. 322; Saxton v. 102 Mo. 149. Construing a con- City of St. Joseph, 60 Mo. 153; tract for hiring work-house prison- Gutta Percha & Rubber Mfg. Co. v. ers to an independent contractor. Village of Ogalalla, 40 Neb. 775; Joslyn v. Dow, 19 Hun (N. Y.) 494; Schumm v. Seymour, 24 N. J. Eq. Suburban Eiec. Light Co. v. Town (9 C. E. Green) 143; Raton Water- of Hempstead, 38 App. Div. 355, 56 works Co. v. Town of Raton, 9 N. N. Y. Supp. 443. Validity of con- M. 70; Swift v. City of Williams- tract based upon petition of pre- burgh, 24 Barb. (N. Y.) 427; Sub- scribed number of taxable inhab- urban Elec. Light Co. v. Town of itants. Wilson v. City of Mitchell Hempstead, 38 App. Div. 355, 56 (S. D.) 97 N. W. 741; Galveston N. Y. Supp. 443; Parr v. Village of County v. Ducie, 91 Tex. 665. A Greenbush, 72 N. Y. 463; Moore v. contract void in part and severable City of New York, 73 N. Y. 238; can be enforced as to its valid pro- Roberts v. City of Fargo, 10 N. D. visions. City of Winchester v. Red- 230; Kerr v. City of Belief ontaine, mond, 93 Va. 711; City of Aberdeen 59 Ohio St. 446; McAleer v. An- v. Honey, 8 Wash. 251; Abernethy gell, 19 R. I. 688, 36 Atl. 588; City v. Town of Medical Lake, 9 Wash, of Bryan v. Page, 51 Tex. 532; 112; Perry v. Superior City, 26 Wis. Schneider v. City of Menasha, 118 64. See, also, cases cited 246, Wis. 298. supra. TiTTamm v. Lavalle, 92 111. 263; fie City of Ft. Scott v. W. G. Johnson v. Common Council of In- Eads Brokerage Co. (C. C. A.) 117 dianapolis, Ib Ind. 227; Jay County Fed. 51; Wallace v. City of San Com'rs v. Fertich, 18 Ind. App. 1, Jose, 29 Cal. 180; Griswold v. City 46 N. E. 699; Osgood v. City of Bos- of East St. Louis, 47 111. App. 480; ton, 165 Mass. 281; Mister v. City Johnson v. Common Council of In- of Kansas, 18 Mo. App. 217; Cheeney dianapolis, 16 Ind. 227; F. C. Aus- v. Inhabitants of Brookfleld, 60 Mo. tin Mfg. Co. v. Smithfield Tp., 21 53; Sprague v. Town of Cornish, Ind. App. 609, 52 N. E. 1011; McKee 59 N. H. 161; New Jersey & N. E. v. City of Greensburg, 160 Ind. 378; Tel. Co. v. Fire Com'rs of Jersey McPherson v. Foster, 43 Iowa, 48; City, 34 N. J. Eq. 117; Briggs v. Murphy v. City of Louisville, 72 Ky. City of New York, 2 Daly (N. Y.) (9 Bush) 189; Osgood v. City of 304; Storey v. Murphy, 9 N. D. 115. Boston, 165 Mass. 281; Black v. See, also, authorities cited 275. Common Council of Detroit, 119 TIS Brady v. City of New YorK. 250 POWER TO CONTRACT. 563 250. Because of purpose or result. Public corporations are organized for the purpose of accom- plishing certain specific ends in connection with government; they are public agencies and not considered in the conduct of their ordinary business as private corporations. Considering the result sought to be effected, without any express limitation or restriction, it follows necessarily, therefore, that an act or con- tract is void not in furtherance of the purpose or aim for which they are incorporated; the purpose of all acts, the result of all powers exercised by them, must be the public advantage; the advancement of the general welfare or the carrying out as a public agent of some one or more of the functions of govern- ment. 719 This prevents, by a process of exclusion, the granting of aid directly or indirectly to private enterprises and the mak- ing of contracts which do not clearly and unquestionably have for their end the accomplishment of some governmental pur- pose ; it excludes all acts and contracts attempted under specious socialistic theories regarding the proper sphere of governmental duties and powers. 720 20 N. Y. 312. See post, 258, 259, 279-282. Tie Sutherland-Innes Co. v. Village of Evart (C. C. A.) 86 Fed. 597; House v. Los Angeles County, 104 Cal. 73. So held of a contract of employment where its purpose was to collect taxes due a county. Hay- ward v. Trustees of Town of Red Cliff, 20 Colo. 33. A contract for the purchase and sale of town site patents will be invalid. City of Chi- cago v. Williams, 182 111. 135. The employment of a stenographer by city council in a case to which the city was not a party unauthorized. Roberts v. City of Cambridge, 164 Mass. 176. Contracts sustained. City of Bay St. Louis v. Hancock County, 80 Miss. 364, 32 So. 54. Town of Verona v. Peckham, 66 Barb. (N. Y.) 103. The validity of an agreement for the procurement of volunteers for the United States army considered and determined. Arnold v. City of Pawtucket, 21 R. I. 15. See generally cases cited under 246-248, supra. 720 Akin v. Ordinary of Bartow County, 54 Ga. 59. A contract hav- ing for its purpose the support of indigent families of Confederate soldiers held not in a legal sense as being in aid of the Rebellion. Gil- lett v. Logan County Sup'rs, 67 111. 256; City of Peru v. Gleason, 91 Ind. 566; Strahan v. Town of Mal- vern, 77 Iowa, 454 (Gift of railroad right of way) ; City of Cleburne v. Brown, 73 Tex. 443. See, also, as discussing the underlying princi- ples relative to the granting of aid to private enterprises or individu- als, 145 et seq.; 172 et seq. 564 POWERS. 252 251. Contracts protected by constitutional provisions. Valid contracts made by public corporations are protected by Federal or state constitutional provisions. The clause most or- dinarily invoked is that of the Federal constitution which pro- hibits a state from passing a law impairing the obligation of a contract. The judicial interpretation based upon the term "law" in this provision is broad and includes not only a law passed by a legislative body but also a constitutional amend- ment or provision, decree of court or any act which may be ultimately given the force and effect of law and which im- pairs the obligation of a contract previously entered into by a public corporation. 721 A contract between an individual and a public corporation is fully protected by constitutional pro- visions against the impairment of a contract obligation. A contract express or implied may or may not arise as against a public corporation in the making of a grant or conveyance; the issue of a license either for the sale of merchandise or the carrying on of an occupation or profession ; the levy of taxes or an exemption from taxation; the grant of a bounty or pen- sion; the location of a county seat; a change of the time and method for paying indebtedness ; a diversion of property or funds from the purpose for which they were devoted or created; im- posing conditions precedent to the payment of municipal indebt- edness ; the use of highways for railways, telephone and telegraph lines or in proceedings for the construction of local improve- ments, all of which questions have been or will be considered in their proper place to be found by reference to the index. 252. Contracts ultra vires because of constitutional provisions. There are frequently found constitutional or statutory pro- visions limiting the amount of the indebtedness which can be legally incurred by public corporations or prohibiting appropria- tions in the absence of the necessary funds either in cash or in process of collection pursuant to some tax levy. 722 The incurring 72i Houston & T. C. R. Co. v. State New York Sanitary Utilization Co. of Texas, 177 U. S. 66; Board of v. Public Health Dept, 32 Misc. 577, Liquidation of New Orleans v. State 67 N. Y. Supp. 324. of Louisiana, 179 U. S. 622; Peo- 722 Brazoria County v. Youngs- pie v. Otis, 24 Hun (N. Y.) 519; town Bridge Co. (C. C. A.) 80 Fed. 252 POWER TO CONTRACT. 565 of indebtedness may, it has been frequently held, be accomplished through the making of a contract because there will arise as the result of a contract an obligation on the part of the corporation of indebtedness may, it has been frequently held, be accomplished which must be paid or satisfied. This obligation is an indebted- ness, although it may not be an express one but merely implied, and the ultimate monetary obligation, when in excess of the debt limit fixed by law, to such an extent, will be void. 723 10; Defiance Water Co. v. City of Defiance, 90 Fed. 753; Keith v. City of Du Quoin, 89 111. App. 36; Sulli- van v. Highway Com'rs of Deer Park, 114 111. 262. Such a contract is valid where a tax sufficient to satisfy the corporate obligations thereunder has been levied and in process of collection. Field v. Stroube, 103 Ky. 114, 44 S. W. 363; Jackson Elec. R., Light & Power Co. v. Adams, 79 Miss. 408; Hurley v. City of Trenton, 67 N. j. Law, 350, 51 Atl. 1109; Raton Waterworks Co. v. Town of Raton, 9 N. M. 70; Kingsland v. City of New York, 5 Daly (N. Y.) 448; Woodside Water Co. v. Long Island Cuy, 23 App. Div. 78, 48 N. Y. Supp: 686; Kingsley v. City of Brooklyn, 78 N. Y. 200; Roberts v. City of Fargo, 10 N. D. 230; Fire Extin- guisher Mfg. Co. v. City of Perry, 8 Okl. 429; City of Lancaster v. Miller, 58 Ohio St. 558; North Pac. Lumbering & Mfg. Co. v. City of East Portland, 14 Or. 3; Routing v. City of Titusville, 175 Pa. 512. If the expenditure contemplated is within the funds available for such purpose, the contract is valid. City of Harrisburg v. Shepler, 190 Pa. 374; Beyer v. Town of Crandon, 98 Wis. 306. 723 Gillette-Herzog Mfg. Co. v. Can- yon County, 85 Fed. 396; Kimball v. City of Cedar Rapids. 100 Fed. 802. If a contract is separable in its provisions, those which are valid may be enforced without regard to the invalidity of others. Rice v. Trustees of Town of Haywards, 107 Cal. 398; Prince v. City of Quincy, 128 111. 443 (Contract for water supply; payable in monthly instal- ments) ; City of Laporte v. Game- well Fire Alarm Tel. Co., 146 Irfd. 466, 45 N. E. 588, 35 L. R. A. 686; Beard v. City of Hopkinsville, 95 Ky. 239; Johnston v. Becker Coxin- ty Com'rs, 27 Minn. 64; Raton Waterworks Co. v. Town of Raton, 9 N. M. 70; People v. Fielding, 36 App. Div. 401, 55 N. Y. Supp. 530; Peck-Williamson Heating & Ventilat- ing Co. v. Board of Education of Oklahoma City, 6 Okl. 279; Carter v. Thorson, 5 S. D. 474, 24 L. R. A. 734. Berlin Iron-Bridge Co. v. City of San Antonio (Tex. Civ. App.) 50 S. W. 408. Contract will be valid, however, if it involves an expend- iture included within a debt al- ready incurred. Spilman v. City of Parkersburg, 35 W. Va. 605. See, however, authorities cited under 152 and 159, which establish the conditions or circumstances under which a contract is valid extending over a term of years, the considera- tion of which is payable in regular instalments conditional upon the fur- nishing of the commodity contract- ed for. Carlyle Water, Light & Power Co. v. City of Carlyle, 31 Rl. 566 POWERS. 253 253. The same subject continued. Public corporations may make contracts which are ultra vires and therefore void because in violation of constitutional pro- visions or rights other than those above noted. They usually provide that no citizen or class of citizens shall be given priv- ileges or immunities not granted to all; 724 that the right which every citizen possesses to contract, except as prohibited by law shall remain inviolate; 725 and that no person shall be deprived App. 325; Quill v. City of Indian- apolis, 124 Ind. 292, 7 L. R. A. 681; Frantz v. Jacob, 88 Ky. 525; New- gass v. City of New Orleans, 42 La, Ann. 163. 724 Van Harlingen v. Doyle, 134 Cal. 53, 66 Pac. 44, 54 L. R. A. 771; Tribune Printing & Binding Co. v. Barnes, 7 N. D. 591. 1807, Rev. Code does not discriminate either against nonresidents or those whose places of business are situated in another state. The sole require- ment of the section is that county printing shall be done within the state. 725 United States v. Martin, 94 U S. 400. The scope of the Act of Congress of June 25, 1868 (15 Stat. 77) declaring "that eight hours shall constitute a day's work for all labor- ers, workmen, and mechanics now employed or who may be hereafter employed by or on behalf of the government of the United States" was under consideration by the su- preme court of the United States. Justice Hunt in delivering the opin- ion of the court said in part: "Prin- cipals, so far as the law can give the power, are entitled to employ as many workmen and of whatever degree of skill and at whatever price they think fit and, except in some special cases, as of children or orphans, the hours of labor and the price to be paid are left to the determination of the parties inter- ested. The statute of the United States does not iuterfere with this principle. It does not specify any sum which shall be paid for the labor of eight hours nor that the price shall be more when the hours are greater, or less when the hours are fewer. It is silent as to every- thing except the direction to its offi- cers that eight hours shall consti- tute a day's work for a laborer. * * * We regard the statute chiefly as in the nature of a direc- tion from a principal to his agent, that eight hours is deemed to be a proper length of time for a day's labor, and that his contracts shall be based upon that theory. * * * We are of the opinion, therefore, that contracts fixing or giving a dif- ferent length of time as the day's work are legal and binding upon the parties making them." United States v. Gates, 148 U. S. 134. Letter carriers' right to extra pay for more than eight hours' work considered. Holden v. Hardy, 169 U. S. 366, affirming 14 Utah, 71. The supreme court of the United States in this case held, sustaining the constitutionality of a Utah stat- ute Sess. Laws 1896, p. 219, regu- lating the hours of employment in underground mines and in smelters and ore reduction works, that it was a valid exercise of the police power POWER TO CONTRACT. 567 of the state and the fact that both parties were of full age and compe- tent to contract does not necessarily deprive the state of the power to interfere where the parties do not stand upon an equality or where the public health demands that one par- ty to the contract shall be protect- ed against himself. The court in its opinion by Mr. Justice Brown cited with approval 14 Utah, 99, " 'The law in question is confined to the protection of that class of people engaged in labor in under- ground mines, and in smelters and other works wherein ores are re- duced and refined. This law ap- plies only to the classes subjected by their employment to the peculiar conditions and effects attending un- derground mining and work in smelters, and other works for the reduction and refining of ores. Therefore, it is not necessary to discuss or decide whether the legis- lature can fix the hours of labor in other employments. Though reason- able doubts may exist as to the pow- er of the legislature to pass a law, or as to whether the law is calcu- lated or adapted to promote the health, safety, or comfort of the peo- ple, or to secure good order, or pro- mote the general welfare, we must resolve them in favor of the right of that department of government.' The legislature has also recognized the fact, which the experience of leg- islators in many states has corrob- orated, that the proprietors of these establishments and their operatives do not stand upon an equality, and that their interests are, to a certain extent, conflicting. The former nat- urally desire to obtain as much labor as possible from their em- ployes, while the latter are often induced by the fear of discharge to conform to regulations which their judgment, fairly exercised, would pronounce to be detrimental to their health or strength. In other words, the proprietors lay down the rules and the laborers are practi- cally constrained to obey them. In such cases, self interest is often an unsafe guide, and the legislature may properly interpose its author- ity. * * * We have no disposi- tion to criticise the many authori- ties which hold that state statutes restricting the hours of labor are unconstitutional. Indeed, we are not called upon to express an opin- ion upon this subject. It is suffi- cient to say of them that they have no application to cases where the legislature had adjudged that a lim- itation is necessary for the preser- vation of the health of employes, and there are reasonable grounds for believing that such determination is supported by the facts. The ques- tion in each case is whether the legislature has adopted the statute in exercise of a reasonable discre- tion, or whether its action be a mere excuse for an unjust discrim- ination, or the oppression, or spolia- tion of a particular class. The dis- tinction between these two differ- ent classes of enactments cannot be better stated than by a comparison of the views of this court found in the opinions in Barbier v. Connolly, 113 U. S. 27; Soon Hing v. Crow- ley, 113 U. S. 703; with those later expressed in Tick Wo v. Hopkins, 118 U. S. 356." Leep v. St. Louis, I. M. & S. R. Co., 58 Ark. 407, 23 L. R. A. 264; In re House Bill No. 203, 21 Colo. 27; In re Morgan, 26 Colo. 415, 47 L. R. A. 52; Luske v. Hotchkiss, 37 Conn. 219; Ritchie v. People, 155 111. 98, 29 L. R. A. 79; Fiske v. Peo- 5b8 POWERS. 253 of his life, liberty or property without due process of law, 726 the term property including the right to labor. 727 pie, 188 111. 206, 52 L. R. A. 291. A contract including a provision fix- ing the length of time which shall constitute a day's work is void as infringing on the right which every citizen possesses to contract except as prohibited by law. McChesney v. People, 200 111. 146 (Eight-hour and alien labor contract); State, v. Mar- tindale, 47 Kan. 147 (Eight-hour statute) ; In re Dalton, 61 Kan. 257, 47 L. R. A. 380 (Eight-hour stat- ute) ; State v. McNally, 48 La. Ann. 1450, 36 L. R. A. 533; Com. v. Ham- ilton Mfg. Co., 120 Mass. 383; Com. v. Perry, 155 Mass. 117, 14 L. R. A. 325; Low v. Rees Printing Co., 41 Neb. 127, 24 L. R. A. 702. Holding unconstitutional a statute which pro- vided that for all classes of mechan- ics, servants and laborers excepting those engaged in farm and domestic labor, a day's work should not ex- ceed eight hours. Brooks v. Cotton, 48 N. H. 50 (Ten hours statute); Taylor v. Porter, 4 Hill (N. Y.) 140; People v. Beck, 10 Misc. 77, 30 N. Y. Supp. 473; People v. Feather- stonhaugh, 172 N. Y. 112, 64 N. E. 802, 60 L. R. A. 768. People v. Orange County Road Const. Co., 37 Misc. 341, 75 N. Y. Supp. 510; McCarthy v. City of New York, 96 N. Y. 1; People v. Coler, 166 N. Y. 1, 52 L. R. A. 814; People v. Coler, 166 N. Y. 144; City of Cleveland v. Clements Bros. Const. Co., 67 Ohio St. 197, 59 L. R. A. 775; City of Portland v. Baker, 8 Or. 356. Regarding enV ployment of Chinese labor on pub- lic improvements. State v. Peel Splint Coal Co., 36 W. Va. 802, 17 L. R. A. 385. 720 People v. Coler, 166 N. Y. 1, 52 L. R. A. 814. Considering the New York "prevailing rate of wages" act, Laws 1897, c. 415, as amended by Laws 1899, cc. 192, 567, and hold- ing it unconstitutional. 727 Ex parte Kuback, 85 Cal. 274, 9 L. R. A. 482. Chinese labor. Mar- shall & Bruce Co. v. City of Nash- ville, 109 Tenn. 495, 71 S. W. 815. 65 Alb. Law J. 102. The court held "an ordinance providing that all city printing should bear a union label void; because it deprives those not using the label from pur- suing their avocation so far as such printing is concerned and hence contravenes the 14th amendment of the United States Constitution; it is against public policy; and it re- stricts competition in violation of the charter." City of Atlanta v. Stein, 111 Ga. 789, 51 L. R. A. 335; Grey v. Peo- ple, 194 111. 486, 62 N. E. 894. Re- ferring to ordinance invalid because restricting the hiring of labor to members of labor unions. Ritchie v. People, 155 111. 98, 29 L. R. A. 79; Adams v. Brenan, 177 111. 194, 42 L. R. A. 718. Contract stipulat- ing that only union labor shall be employed held invalid. Holden v. City of Alton, 179 111. 318. A con- tract where the statute requires a letting to the lowest bidder is void let to one not the lowest bidder be- cause of the employment of non- union labor by him. Fiske v. Peo- ple, 188 111. 206, 52 L. R. A. 291. Contracts providing that only union labor shall be employed by contract- ors constructing public improve- ments are unconstitutional and void. 255 POWER TO CONTRACT. 569 254. Contracts ultra vires because contravening some exclu- sive right. The government of the United States is a dual one consisting of the National or Federal organization and that of the different states. To the Federal government is given, by the Federal con- stitution, certain exclusive rights. A contract entered into by a state or a public corporation organized under the laws of any state which infringes upon or attempts to regulate any such ex- clusive right, privilege or power is clearly void. 255. Contracts ultra vires because of a beneficial interest re- sulting to the public officers executing them. An officer, agent or employe of a public corporation occupies as towards such corporation what is termed a fiduciary or trust relation. This same relation exists as between the officers of a St. Louis Quarry & Const. Co. v. Von Versen, 81 Mo. App. 519. An ordinance provision that all dressed rock used in connection with a speci- fied public work must be dressed within the limits of the state of Missouri held void. State v. Julow, 129 Mo. 163, 29 L. R. A. 257. Members of labor union. Davenport v. Walker, 57 App. Div. 221, 68 N. Y. Supp. 161. An injunction will issue at the suit of a taxpayer to prevent the waste of county funds by the letting of a contract for the construction of a county building to a higher bidder who agrees to employ only union labor. Frame v. Felix, 167 Pa. 47, 27 L. R. A. 802. It is inconsistent with a statute requiring a contract to be let to the lowest bidder to limit con- tractors to those who will employ men not citizens of the United States and who will pay no less than $1.50 per day for their services. See, also, note 7 Mun. Corp Cas. p. 702. See, also, the following cases holding public contracts void in which there are provisions restricting com- petition: People v. Chicago Gas Trust Co., 130 111. 268, 8 L. R. A. 497; Foss v. Cummings, 149 111. 353; Fishburn v. City of Chicago, 171 111. 338, 39 L. R. A. 482. Street v. Varney Electrical Sup- ply Co., 160 Ind. 338, 66 N. E. 895. Approving People v. Coler, 166 N. Y. 1, 52 L. R. A. 814. An act of the legislature which required munici- pal corporations to pay for common labor employed on public works more than its market value was in this case held void and unconstitu- tional because "it deprives taxpay- ers of their privileges and immuni- ties, of their property without due process of law and because it inter- feres unreasonably with the right of contract and is class legislation." City of Cleveland v. Clements Bros. Const. Co., 67 Ohio St. 197, 59 L. R. A. 775; Mazet r. City of Pitts- burgh, 137 Pa. 548. 570 POWERS. 255 private corporation and the corporation and should applv in an intensified degree to public officials or employes. In a decision by the supreme court of the United States 728 the court in discuss- ing the impossibility and inconsistency of one person represent- ing or attempting to represent personal and adverse interests in the same transaction said : "The general rule stands upon our great moral obligation to refrain from placing ourselves in relations which ordinarily ex- cite a conflict betwe.en self-interest and integrity. It restrains all agents, public and pi Ivate; * * * The disability * * * is a consequence of that relation between them which imposes on the one a duty to protect the interest of the other, from the faithful discharge of which duty his own personal interest may withdraw him. In this conflict of interest, the law wisely inter- poses. It acts not on the possibility that in some cases the sense of that duty may prevail over the motives of self-interest, but it provides against the probability in many c'ases, and the danger in all cases, that the dictates of self-interest will exercise a pre- dominant influence, and supersede that of duty." The courts therefore hold uniformly to the rule that contracts executed by and in behalf of a public corporation in which the officers so executing them may directly or indirectly have a benefi- cial interest are absolutely void. 729 This rule is necessary for TZS Michoud v. Gnod, 4 How. (IT. the city with the contract commod- S.) 503. ity, namely, gas. 729 city of London Elec. Lighting Lower Kings River Reclamation Co. v. City of London, 82 Law T. Dist. v. McCullah, 124 Cal. 17"5. Con (N. S.) 530. A contract, however, tracts with themselves for the pur is not rendered invalid because one chase of right of way by the trus- of the shareholders of the contract- tees of a reclamation district, how ing company is a member of the ever, held valid where such right of common council, a commissioner of way was necessary and the price sewers or a member of the board of paid not higher than for other lands aldermen. of a similar character. Berka v. Woodward, 125 Cal. 119, City of Macon v. Huff, 60 Ga. 221; 57 Pac. 777, 45 L. R. A. 420; Capron Dorsett v. Garrard, 85 Ga. 734; v. Hitchcock, 98 Cal. 427; Capital West v. Berry, 98 Ga. 402; Nuckols Gas Co. v. Young, 109 Cal. 140, 29 v. Lyle, 8 Idaho, 589, 70 Pac. 401; L. R. A. 463. Such contract, how- Village of Dwight v. Palmer, 74 111. ever, is valid where by law the 295; Piatt County v. Republican other party was obliged to supply Printing Co., 99 111. App. 411; White 255 POWER TO CONTRACT. 571 the protection of public funds from dishonest and scheming pub- lic officials. As further emphasizing the rule suggested, many v. City of Alton, 149 111. 626. An ex-member of the council, however, may bid upon a contract for street paving where the ordinance provid- ing for such paving was passed while he was yet a member of the council. City of Ft. Wayne v. Rosenthal, 75 Ind. 156; McGregor v. City of Logansport, 79 Ind. 166; Benton v. Hamilton, 110 Ind. 294; Trustees of United Brethren v. Rausch, 122 Ind. 167. The fact that an officer of the city was one of the contractor's bondsmen does not invalidate the contract or the assessment levied to pay for the improvement. City of Ft. Wayne v. Lake Shore & M. S. R. Co., 132 Ind. 558, 18 L. R. A. 367. Such a contract may be rati- fied, however, if the interested party is no longer a member of the city council. Cason v. City of Lebanon, 153 Ind. 567. The fact that the contractor's relative was city engineer does' not invalidate a contract for the making of certain street improvements. Perry County Com'rs v. Gardner, 155 Ind. 165; Manley v. City of Atchi- son, 9 Kan. 358; Holderness v. Baker, 44 N. H. 414; Stroud v. Con- sumers' Water Co., 56 N. J. Law, 422, 28 Atl. 578; Klemm v. City of Newark, 61 N. J. Law, 112, 38 Atl. 692. A contract for services out- side the line of his official duties between a municipal officer and the city will be maintained. West Jersey Traction Co. v. Board of Public Works of Camden, 56 N. J. Law, 431; Nunemacher v. City of Louisville, 98 Ky. 334; Com. v. Wil- lis, 19 Ky. L. R. 962, 42 S. W. 1118; City of Winchester v. Frazer, 19 Ky. L. R. 1366, 43 S. W. 453; Goodrich v. City of Waterville, 88 Me. 39; People v. Township Board of Overyssel, 11 Mich. 222; Lewick v. Glazier, 116 Mich. 493, 74 N. W. 717. A contract is not invalid be- cause the father of the contractor was also a village trustee and passed upon it. Macy v. City of Duluth, 68 Minn. 452; State v. Rickards, 16 Mont. 145, 28 L. R. A. 298. A contract for public printing not affected by the fact that the manager of the pub- lishing house who was paid a fixed salary was a member of the legis- lature at the time of the execution of the contract. McElhinney v. City of Superior, 32 Neb. 744; City of Broken Bow v. Broken Bow Waterworks Co., 57 Neb. 548, 77 N. W. 1078. The fact that the mayor and other city offi- cials are stockholders in a corpora- tion will not invalidate a contract made with such corporation by the municipality. Moreland v. City of Passaic, 63 N. J. Law, 208, 42 Atl. 1058. A contract with the firm, one of the partners being a member of the city council, is not invalid by reason of this fact; but see the case of Foster v. City of Cape May, 60 N. J. Law, 78, holding that a contract will be void even where a member of the city council held some of the stock of the contracting company as col- lateral to a loan. Roosevelt v. Draper, 23 N. Y. 318; In re Taxpayers & Freeholders of Plattsburgh, 27 App. Div. 353, 50 N. Y. Supp. 356; Smith v. City of 572 POWERS. 255 states contain statutory provisions to the effect that public offi- cials or agents shall not be directly or indirectly interested in any present or future contract they may make on behalf of the public corporation they represent. 730 Where, under a contract invalid Albany, 61 N. Y. 444; In re Clamp, 33 Misc. 250, 68 N. Y. Supp. 345; Snipes v. City of Winston, 126 N. C. 374; Roberts v. First Nat. Bank, 8 N. D. 504, 79 N. W. 1049. The rule, however, will not prevent the levy- ing of a tax for the purpose of mak- ing payments upon a contract of such a character. Borough of Milford v. Milford Water Co., 124 Pa. 610, 3 L. R. A. 122. Duncan v. City of Charleston, 60 S. C. 532. What is considered the correct rule is held in this case, namely, that where members of a city council are also stockholders in a corporation this precludes the making of a contract by the city council with such corporation. There is no doubt of the soundness of the principle in the text; if it is to be maintained, the line between con- tracts valid or invalid because of the fact of a beneficial interest re- sulting to the officers of the corpora- tion must be rigidly drawn and maintained. Texas Anchor Fence Co. v. City of San Antflnio, 30 Tex. Civ. App. 561; Land, Log & Lumber Co. v. Mclntyre, 100 Wis. 258; Quayle v. Bayfield County, 114 Wis. 108. But see Tucker v. Howard, 122 Mass. 529; Nicoll T. Sands, 131 N. Y. 19; Stott v. Franey, 20 Or. 410; Trainer v. Wolfe, 14~0 Pa. 279; Albright v. Town Council of Chester, 9 Rich. Law (S. C.) 399; Pickett v. School Dist. No. 1, 25 Wis. 551. 730 Santa Ana Water Co. v. Town of San Buenaventura, 65 Fed. 323; Gibbons v. Mobile & G. N. R. Co., 36 Ala. 410; Berka v. Woodward, 125 Cal. 119, 2 Mun. Corp. Cas. 566, 45 L. R. A. 420. "Here was an implied contract, but it was one prohibited by the statute law as well as by con- siderations of public policy, and the plaintiff was denied any recovery. Our statutes are general in prohibit- ing any officer from being interested in such contracts, and, if ever there was an occasion for its strict en- forcement, it certainly exists in a case such as this, where the con- tractor is a member of the common council, whose duty it is to make such contracts on behalf of the city. He cannot be permitted to place himself in any position where his personal interest will conflict with the faithful performance of his duty as trustee, and it matters not how fair upon the face of it the con- tract may be the law will not suffer him to occupy a position so equivocal and so fraught with temptation. Note the situation here presented. This material was obtained from a member of the city council, and he, as a member of that council, sits in judgment upon the validity and amount of his own claim. If he does not act, still the city is de- prived of its right to his services and judgment in determining these very questions." Village of Dwight v. Palmer, 74 111. 295; McGregor v. City of Logans- port, 79 Ind. 166; Case v. Johnson. 91 Ind. 477; Benton v. Hamilton, 110 Ind. 294; Nunemacher v. City of Louisville, 98 Ky. 334; Brackett v. 256 POWER TO CONTRACT. 573 because of the principle stated above, the public corporation has received articles or services of value and which it properly could, many cases hold that though the contract cannot be enforced, still a recovery will be permitted on the basis of a quantum meruit for the services or things actually rendered or furnished. 781 256. Contracts ultra vires because of fraud or bribery. A contract to which a public corporation is a party may be void and incapable of enforcement because of illegal or fraudu- lent means used x either in its original procurement or in its actual execution. The general rule of law in this respect applies to such contracts. 732 City of Boston, 157 Mass. 177; God- dard v. City of Lowell, 179 Mass. 496; State v. City of Great Falls, 19 Mont. 518; Stroud v. Consumers' Water Co., 56 N. J. Law, 422, 28 Atl. 578; State v. Funk, 16 Ohio Circ. R. 155; Com. v. Philadelphia Coun- ty Com'rs, 2 Serg. & R. (Pa.) 193; Com. v. Thum, 10 Serg. & R. (Pa.) 418; Com. v. Hurd, 177 Pa. 481; Com. v. De Camp, 177 Pa. 112. Marshall v. Elwood City Borough, 189 Pa. 348. Not applied to a con- tract where one of the members of the council was a stockholder in the contracting company, there be- ing a majority of the council in favor of such contract exclusive of this member. City of Northport v. Northport Town Site Co., 27 Wash. 543; Lil- lard v. Freestone County, 23 Tex. Civ. App. 363. See, also, Bell v. Quin, 4 N. Y. Super. Ct. (2 Sandf.) 146; and City of Anna v. O'Calla- han, 3 111. App. 176, which holds that the statutory prohibition against city officials being interested in any contract work or business of the city does not prevent an officer from ordering an article by authority of the city and advancing the money to pay for it. "I Spearman v. Texarkana, 58 Ark. 348, 22 L. R. A. 855; Capital Gas Co. v. Young, 109 Cal. 140, 29 L. R. A. 463; City of Macon v'. Huff, 60 Ga. 221; City of Concordia v. Hagaman, 1 Kan. App. 35, 41 Pac. 133; City of Niles v. Muzzy, 33 Mich. 61; Currie v. School Dist. No. 26, 35 Minn. 163; Grand Island Gas Co. v. West, 28 Neb. 853; Call Pub. Co. v. City of Lincoln, 29 Neb. 149; Gardner v. Butler, 30 N. J. Eq. 702; Pickett v. School Dist. No. 1, 25 Wis. 551. See, also, 259 post, and authorities cited. 732 Rice v. Trustees of Hayward, 107 Cal. 398; Woodward v. Collett, 20 Ky. L. R. 1066. An agreement that the successful bidder shall di- vide the work held not a fraudulent condition. Devlin v. City of New York, 4 Misc. 106, 23 N. Y. Supp. 888; Adamson v. Nassau Elec. R. Co., 12 Misc. 600, 33 N. Y. Supp. 732; State v. Kern, 51 N. J. Law, 259; Madden v. Van Wyck, 35 Misc. 645, 72 N. Y. Supp. 135. Complaint contained no allegations of fraud and held insufficient. In re Ander- 574 POWERS. 257 257. Contracts ultra vires because extending beyond official term. Many contracts made by public corporations are for supplies used by them in the conduct of their public business or in the carrying on of various proprietary interests. Such contracts when involving large expenditures usually extend over a period of years; this is especially true of contracts or franchises in the nature of contracts granted private corporations for furnishing supplies of water and light. These have been claimed as ultra vires because restricting or limiting the power of succeeding public officials or legislative bodies, it being vital to the public welfare that each legislative body or public official should be able to do whatever the varying circumstances and present exi- gencies require, 733 and in some instances because of their extend- ing for what is urged as an unreasonable length of time. In re- gard to contracts made by public corporations for the securing of a supply of water and light, it was well said by Judge Lochren of the Federal bench in a recent case 734 in the Eighth Circuit, "Contracts on the part of a municipality for the supply to the municipality and to its citizens, of water and light are not made son, 109 N. Y. 554; Byers v. Manley Mfg. Co. (Tenn. Ch. App.) 46 S. W. 547; City of Witchita Falls v. Skeen, 18 Tex. Civ. App. 632. The agree- ment to divide work secured by the successful bidder among those com- peting renders the contract void. Herman v. City of Oconto, 100 Wis. 391. 733 Gale v. Village of Kalamazoo, 23 Mich. 344. The court by Judge Cooley in part said: "It is impos- sible to predicate reasonableness of any contract by which the govern- ing authority abdicates any of its legislative powers, and precludes it- self from meeting in the proper way the emergencies that may arise. Those powers are conferred in order to be exercised again and again, as may be found needful or politic; and those who hold them in trust today are vested with no discre- tion to circumscribe their limits or diminish their efficiency but must transmit them unimpaired to their successors. This is one of the funda- mental maxims of government and it is impossible that free govern- ment with restrictions for the pro- tection of individual or municipal rights could long exist without its recognition." See, also, authorities for and against the rule cited and reviewed in Columbus Water-Works Co. v. City of Columbus, 48 Kan. 99, 15 L. R. A. 354, where it is held that though a city may be power- less to make a contract for water supply for 21 years, still the con- tract should be upheld for a rea- sonable time. "4 Little Falls Elec. & Water Co. v. City of Little Falls, 102 Fed. 663. 257 POWER TO CONTRACT. 575 in the exercise of the governmental powers vested in the mu- nicipal council, but of its proprietary or business powers. It is acting for the private benefit of itself and its inhabitants, and its contracts of that character are governed by the same rules that govern contracts of private individuals and corporations." Such contracts usually held good require for their performance the expenditure of large sums of money and the erection of plants such as it has been learned through experience, a public corporation should not directly attempt. Private capital will not engage in such enterprises when the contract runs for a limited time because the returns for such period will not be com- mensurate with the capital invested and necessary skill. 735 735 Chenango Bridge Co. v. Bing- hampton Bridge Co., 70 U. S. (3 Wall.) 51. "The purposes to be at- tained are generally beyond the ability of individual enterprise, and can only be accomplished through the aid of associated wealth. This will not be risked unless privileges are given and securities furnished in an act of incorporation. The wants of the public are often so im- perative, that a duty is imposed on government to provide for them; and as experience has proved that a state should not directly attempt to do this, it is necessary to confer on others the faculty of doing what the sovereign power is unwilling to undertake. The legislature, there- fore, says to public-spirited citizens: 'If you will embark, with your time, money, and skill, in an enterprise which will accommodate the public necessities, we will grant to you, for a limited period, or in perpetu- ity, privileges that will justify the expenditure of your money, and the employment of your time and skill.' Such a grant is a contract, with mutual considerations, and justice and good policy alike require that the protection of the law should be assured to it." Manhattan Trust Co. v. City of Dayton (C. C. A.) 59 Fed. 327, af- firming 55 Fed. 181. Where a city is authorized to contract for ten years, a contract for twenty y^ars or for a longer time is entirely void. It is not valid even for the period of ten years. Defiance Water Co. v. City of Defiance, 90 Fed. 753; City Council of Montgomery v. Mont- gomery Water-Works Co., 79 Ala. 233; Capital City Water Co. v. City Council of Montgomery, 92 Ala. 366; McBean v. City of Fresno, 112 Cal. 159, 44 Pac. 358, 31 L. R. A. 794. Five-year sewage contract valid. Higgins v. City of San Diego (Cal.) 45 Pac. 824. Twenty-year water- works contract valid. Cartersville Imp. Gas & Water Co. v. City of Cartersville, 89 Ga. 683. The valid- ity of a long term contract is de- pendent upon an affirmative popu- lar vote as required by the state constitution. Carlyle Water, Light & Power Co. v. City of Carlyle, 31 111. App. 325; City of Carlyle v. Carlyle Water, Light & Power Co., 52 111. App. 577. In a contract for a supply of water for a term of thirty years the power is withheld to fix a price to apply during the entire period. 576 POWERS. 257 Unless some valid or consistent reason appears as suggested in this section, contracts are void made by public officials beyond City of Indianapolis v. Indianapo- lis Gaslight & Coke Co., 66 Ind. ; Dausch v. Crane, 109 Mo. 323, 19 S. W. 61; Nebraska City v. Nebraska City Hy- draulic Gas Light & Coke Co., 9 Neb. 339; Jewett v. Town of Alton, 7 N. H. 257; Ottendorfer v. Fortu- nato, 56 N. Y. Super. Ct. (24 J. & S.) 495, 4 N. Y. Supp. 629; Cody v. City of New York, 71 App. Div. 54, 75 N. Y. Supp. 648; Baird v. City of New York, 96 N. Y. 567. Goodale v. Fennell, 27 Ohio St. 426. The attempt to rescind a legal contract is subject to the restraining power of the constitutional provi- sion protecting the obligation of a contract. Western Sav. Fund Soc. v. City of Philadelphia, 31 Pa. 175; City of Galveston v. Morton, 58 Tex. 409; Auerbach v. Salt Lake County, 23 Utah, 103, 63 Pac. 907; Barle v. Town of Wallingford, 44 Vt. 367. 634 POWERS. 285 sion must be determined by an inspection of the contract in each individual case. 858 285. Contracts; their construction. In the construction of contracts, the fact that a public corpora- tion is one of the parties does not change, except in a few in- stances, the application of ordinary legal rules. 857 Some excep- tions to this rule are based upon the reason that in all matters affecting public interests, a public corporation being a govern- mental or public agency, questions of doubt especially in grants are construed most strongly in favor of the corporation and against the 'other party to the contract. 858 There are also cases going to the extent that the rule of construction applying to con- tracts that the court in construing a doubtful provision will fol- low the interpretation placed upon it by the parties will not ap- ply. 869 856 City of Greenville v. Greenville Water-Works Co., 125 Ala. 625, 27 So. 764; City of Indianapolis v. Ely, 39 Ind. 373; Neill v. Gates, 152 Mo. 585. The attempted rescission may be void because of a delegation of legislative powers. SST Richie v. Frazer, 50 Ark. 393, 8 S. W. 143; Worthington v. City of Covington, 82 Ky. 265; City of Bal- timore v. Eschbach, 18 Md. 276; McBrian v. City of Grand Rapids, 56 Mich. 95; City of Grand Rapids v. Grand Rapids Hydraulic Co., 66 Mich. 606; Western Sav. Fund Soc. v. City of Philadelphia, 31 Pa. 175; City of Harrisburg v. Shepler, 190 Pa. 374. The fact that a contract does not show upon its face that it is based upon an appropriation of money is immaterial and does not invalidate it. Milliken v. Callahan County, 69 Tex. 205, 6 S. W. 681. The rule applied that preliminary negotiations are merged in a written contract subsequently made and evi- dence of which cannot be introduced to alter or change its terms. Gano v. Palo Pinto County, 71 Tex. 99, 8 S. W. 634. sss McPherson v. San Joaquin County (Cal.) 56 Pac. 802. 859 National Water- Works Co. v. School Dist. No. 7, 48 Fed. 523. "Regarding this verbal agreement, it may be said that the construction given to a doubtful provision by the parties to a contract, and affecting their interest only, often influences courts in their judgment, upon the reasonable presumption that the par- ties to a judgment are in a condition to best know what was meant or in- tended by it and, moreover, likely to guard their interest. The force of such reasoning is broken when we come to apply it to municipal corpo- rations. They must of necessity have their affairs conducted by per- sons selected according to law, who often have but a general public in- terest in the matters intrusted to them, are frequently changed, and not always the best calculated to 285 POWER TO CONTRACT. 635 Courts are called upon to construe many contracts executed by the parties at some time in the past more or less remote and, usu- ally, under more favorable circumstances at that time to the public corporation. An increase in population or other change of conditions makes the contract, which at the time of its execu- tion was a burdensome one upon the other party, of great ad- vantage to it. The public corporation desires to take advantage of the fact that if this contract were executed under present con- ditions a better bargain might be made and therefore seeks to avoid it for the reason that it is a public corporation, a public agent and, therefore, it should be permitted to make all of its contracts at the greatest possible advantage to itself even if in order to do this it must deliberately avoid legal contracts made under other conditions or circumstances less favorable. The rule adopted by the courts in such cases for determining their reasonableness or validity is whether at the time the contract was made it was legal and reasonable; subsequent developments or newly arising conditions should not be permitted to influence or determine the question. 860 The contracts requiring the most construe contracts made by their predecessors. This is illustrated to some extent in the case before the court, in which school directors of one board contracted to pay, and the same or another set of directors aft- erwards refused payment. A court asked to construe the provisions ot a contract under such or similar cir cumstances may well hold itself free to do so without being influenced by the views entertained or even acted on by the corporators, especially in a case involving public interests, as the present one does." Chicago, B. & Q. R. Co. v. City of Chicago, 134 111. 323; Adrian Water Works v. City of Adrian, 64 Mich. 584; St. Louis Gaslight Co. v. City of St. Louis, 46 Mo. 121. sec Santa Ana Water Co. v. Town of San Buenaventura, 56 Fed. 339; Los Angeles City Water Co. v. City of Los Angeles, 88 Fed. 720. "It is insisted by defendants that the case at bar is distinguishable from that of Santa Ana Water Co. v. Town of San Buenaventura, supra, * * * because Griffin and his associates procured their contract with the in- tention of forming a corporation to carry out the same, and that soon thereafter, pursuant to said inten- tion, the Los Angeles City Water Company,^ one of the complainants herein, was organized by them. Now I do not think that the power of the city to enter into the contract or the validity of the contract can be affected by the fact that the assign- ors of the water company, at the time they procured the contract, in- tended to assign it to a corporation thereafter to be formed. Suppose that, after the making of the con- tract, Griffin, Beaudry and Lazard had changed their purposes and con- cluded to carry out the contract as 636 POWERS. 285 frequent construction by the courts are those which relate to or secure a supply of water 801 or light 862 for municipal or public Individuals and had actually done so; could it be contended that the contract, if to-day held by them, would be invalid because when they procured it they purposed its assign- ment to a contemplated corporation? No one, I think, would so contend." Little Falls Elec. & Water Co. v. City of Little Falls, 102 Fed. 663; City & County of San Francisco v. Spring Valley Water Works, 48 Cal. 493. 86i Little Falls Elec. & Water Co. v. City of Little Falls, 102 Fed. 663; Menominee Water Co. v. City of Menominee, 124 Mich. 386, 83 N. W. 127; Alpena City Water Co. v. City of Alpena, 130 Mich. 518, 90 N. W. 323; Ludington Water-Supply Co. v. City of Ludington, 119 Mich. 480; Syracuse Water Co. v. City of Syra- cuse, 116 N. Y. 167, 5 L. R. A. 546; Port Jervis Water Works Co. v. Vil- lage of Port Jervis, 151 N. Y. 111. sea Pittsburgh Gas Co. v. City of Pittsburgh, 101 U. S. 219. Constru- ing Internal Revenue Act 1864, 94, relative to the levying of a tax on illuminating gas to be paid by the manufacturer. Hamilton Gas Light & Coke Co. v. City of Hamilton, 146 U. S. 258, affirming 37 Fed. 832, and construing the provisions of a con- tract for supplying gas for private and public consumption during the period of five years. Southwest Mis- souri Light Co. v. City of Joplin, 113 Fed. 817; Decatur Gaslight & Coke Co. v. City of Decatur, 120 111. 67, affirming 24 111. App. 544 and con- struing the terms "at rates as favor- able" as used in a contract with a gas company relative to the price to be charged for gas supplied. City of Vincennes v. Citizens' Gas Light Co., 132 Ind. 114, 16 L. R. A. 485, construing ordinance granting to plaintiff's assignors the privilege of laying gas mains for supplying illuminating gas during a period of twenty-five years. Davenport Gas Light & Coke Co. v. City of Daven port, 13 Iowa, 229, construing the term "public lamp posts" as used in a contract for lighting streets. Capital City Gaslight Co. v. City of Des Moines, 93 Iowa, 547, con- struing provisions of a city ordi- nance binding the city to use for ten years gas furnished by the plaintiff for lighting public buildings and street lamps with the privilege whenever the city council should deem it expedient or economical to light the public buildings or a. por- tion of the business section of the city with electric lights, of discon- tinuing any or all of the gas lamps; also construing the words "business section" as meaning th.-.t part of the city chiefly devoted to business pur- poses and in which stores, factories, offices and shops predominated In contradistinction to those parts chiefly used for resident purposes or which were vacant and unoccupied. The court also lays down the rule that "If a construction can be placed upon the contract which will give all parts of it force and effect, and at the same time is in accord with the well settled rules of construction, it must obtain, rather than one which would render a part of the contract inoperative. Again it is proper to look to the acts of the parties at a time when there was no litigation, to ascertain what view they had held as to their obligations under the con- tract." City of Winfield v. Winfield Gas 285 POWSR TO CONTRACT. 637 uses; the paving, 863 repairing, 864 sprinkling, 865 or improvement 868 of streets and pub^s highways; the construction, 867 and mainte- Co., 37 Kan. 24. Full force and ef- fect must be given to the entire con- tract. Mitchell r. City of Negaunee, 113 Mich. 35:), Yi N. W. 646, 38 L. R. A. 157. Where neither the char- ter nor the statutes require a public corporation to pay in cash for a lighting plant, a contract for the construction of one without such funds on hand is valid. St. Paul Gaslight Co. v. City of St. Paul, 78 Minn. 39, 80 N. W. 774, 877; City of St. Louis v. Laclede Gas 'Light Co., 155 Mo. 1; Virginia City Gas Co. v. Virginia City, 3 Nev. 320; Bronx Gas & Elec. Co. v. City of New York, 17 Misc. 433, 41 N. Y. Supp. 358; State v. Ironton Gas Co., 37 Ohio St. 45; Saltsburg Gas Co. v. Borough of Saltsburg, 138 Pa. 250, construing the term "for all street lamps" in a contract in which a gas company agreed to furnish nat- ural gas to a village free of charge for such lamps. Parkersburg Gas Co. v. City of Parkersburg, 30 W. Va. 435. A contract with a gas company giving the exclusive right to furnish gas for public use does not prevent the city from making a contract for the use of electric light. 63 Murdock v. District of Colum- bia, 22 Ct. 01. 464; Hitchcock v. City of Galveston, 2 Woods, 272, Fed. Cas. No. 6,532. A written consent of property owners abutting on an asphalt pavement held a part of the contract between the city and the contractor for such paving. The fail- ure to obtain such consent consid- ered a breach of the contract suffi- cient to prevent a recovery for work done under it. McDonald v. Mezes, 107 Cal. 492, 40 Pac. 808. A provision that work shall be commenced "within four- teen days" from the date of the con- tract for street paving held suffi- cient under statutes of 1885, p. 151 fixing the time of the commencement of work at not more than fifteen days from the date of the contract. Kelso v. Cole, 121 Cal. 121, 53 Pac. 353. Construing general street law, 12% as amended by statutes of 1889, p. 169; Piedmont Pav. Co. v. Allman, 136 Cal. 88, 68 Pac. 493; N. P. Ferine Contracting & Pav. Co. v. Quackenbush, 104 Cal. 684, con- struing statutes of 1889, p. 162, pro- viding for the laying of pavement by property owners if they so elect. Himmelmann v. Satterlee, 50 Cal. 68. A resolution to macadamize and curb a street does not give authority to order work on adjoining side- walks. Martindale v. Palmer, 52 Ind. 411. A contract based upon an ordinance calling for "Nicholson or wooden block pavement" can be en- forced as substantially following the ordinance. Shank v. Smith, 157 Ind. 401, 61 N. E. 932, 55 L. R. A. 564; Risdon v. Shank, 37 Iowa, 82; State v. New Orleans & N. E. R. Co., 42 La. Ann. 11, 7 So. 84; Grant v. City of De- troit, 119 Mich. 43, 77 N. W. 307. A contract called for paving a street "forty feet wide, less car tracks, fif- teen feet." There was a small space between the flanges on the outside rails not included in the forty feet. The court held this space to be in- cluded in the contract and that it was error for the trial court to leave the construction of the contract to a jury. 638 POWERS. 285 Cole v. Skrainka, 105 Mo. 303; Dunn v. McNelly, 75 Mo. App. 217; State v. Webster, 20 Mont. 219; City of Camden v. Ward, 67 N. J. Law, 558, 52 Atl. 392. Construing that provision of a paving contract for the completion of the work by the street commissioner if the con- tractor fail to do this. City of Schenectady v. Union Col- lege, 66 Hun, 179, 21 N. Y. Supp. 147; Kelly v. City of New York, 16 App. Div. 296, 44 N. Y. Supp. 628; Peo- ple v. Maher, 56 Hun (N. Y.) 81. 864 McDonald v. Mezes, 107 Cal. 492; Latham v. Village of Wilmette, 168 111. 153; Shank v. Smith, 157 Ind. 401, 61 N. E. 932, 55 L. R. A. 564; State v. Common Council of Michigan City, 138 Ind. 455; Osburn v. City of Lyons, 104 Iowa, 160; Kansas City v. Hanson, 60 Kan. 833. A guarantee that a contractor would make all repairs necessary within the time fixed resulting from any imperfection of the work or ma- terial is a guarantee only of the quality of the workmanship and ma- terial used in paving and not a gen- eral obligation to make street re- pairs irrespective of the cause. Gibson v. Owens, 115 Mo. 258, 21 S. W. 1107; Barber Asphalt Co. v. Ullman, 137 Mo. 543, 38 S. W. 458; Robertson v. City of Omaha, 55 Neb. 718, 76 N. W. 442, 44 L. R. A. 534. A provision in a paving contract by which the contractor agrees to make "all repairs which may result from any imperfection in said work or material becoming necessary within the time (ten years)" does not in- clude ordinary repairs. City of Schenectady v. Union Col- lege, 66 Hun, 179, 21 N. Y. Supp. 147; O'Keefe v. City of New York, 73 App. Div. 312, 76 N. Y. Supp. 796. A street improvement contract bind- ing the contractor to maintain the work in repair for a certain period held proper and valid. City of Philadelphia v. Jewell's Estate (Pa.) 20 Atl. 281. In the ab- sence of a contract providing the time for the completion of the pav- ing, general ordinances control. Southern Pav. Co. v. City of Chat- tanooga (Tenn. Ch. App.) 48 S. W. 92; Boyd v. City of Milwaukee, 92 Wis. 456. A provision in a paving contract requiring the contractor to keep the pavement in good repair for five years, except repairs due to cutting through the pavement for laying pipes, etc., renders an as- sessment therefor against the prop- erty owners invalid, the charter of the city requiring the expenses of repairing streets to be paid from the ward fund. ses Rosetta Gravel Pav. & Imp. Co. v. City of New Orleans, 50 La. Ann. 1173, 24 So. 237. see Drew v. Smith, 38 Cal. 325. Construing a contract for the grad- ing of streets where the statutes declare that eight hours labor shall constitute a day's work in all cases where the same is performed by the authority of any municipal govern- ment. Palmer v. Burnham (Cal.) 47 Pac. 599. Construing statutes of 1885, p. 151, 6, regarding the time of com- mencement and completion of all works of public improvement. Board of Public Works of Denver v. Hay- den, 13 Colo. App. 36, 56 Pac. 201. The term "street" in a charter when not specified includes the whole area from the line of lots on one side to the line of lots on the other includ- ing sidewalk areas. City of Chicago v. People, 56 111. 327; City of New Albany v. Conger, 18 Ind. 230, 47 N. E. 852. Constru- ing 3625. Rev. St. 1894 apportion- 285 POWER TO CONTRACT. 639 fng the cost of street Improvements and holding municipalities liable for public grounds and street and alley crossings. Ryan v. City of Dubuque, 112 Iowa, 284, 83 N. W. 1073; City of Leaven- worth v. Rankin, 2 Kan. 357; Ross- valley v. City of New Orleans, 19 La. Ann. 7; Rens v. City of Grand Rap- ids, 73 Mich. 237. Construing the provisions of a contract providing for the payment of "extras." Allen v. Rogers, 20 Mo. App. 290. Constru- ing the provision of a contract for public work calling for the perform- ance of "extra work." Gibson v. Owens, 115 Mo. 258, 21 S. W. 1107. A single contract may cover work au- thorized by ordinances passed at dif- ferent times. Saxton Nat. Bank v. Haywood, 62 Mo. App. 550. Street railway tracks not included within a contract for the macadamizing, curbing and guttering of a certain street. McQuiddy v. Brannoch, 70 Mo. App. 535. Construing a con- tract provision fixing the time for completion of work. Palladino v. City of New York, 56 Hun, 565, 10 N. Y. Supp. 66. Spe- cial provisions and stipulations in a contract for the improvement and grading of a street control the gen- eral language of the contract specifi- cations. Ferdinand v. City of New York, 56 Hun, 623, 13 N. Y. Supp. 226. Construing and determining that provision of a contract providing for its reletting in case of abandon- ment of the work by the contractor. Barry v. City of New York, 38 App. Div. 632, 56 N. Y. Supp. 1049. No recovery can be had for filling beneath the surface of the street as shown by lines in a plan made a part of the contract and represent- ing the surface of the ground. Phelan v. City of New York, 119 N. Y. 86; Dean v. City of New York, 167 N. Y. 13, reversing 45 App. Div. 605, 61 N. Y. Supp. 374. The work under the contract limited to that shown by the plan accompanying the contract irrespective of ordinance conditions authorizing it. McManus v. City of Philadelphia, 195 Pa. 304. Naughton v. City of Sioux Falls, 3 S. D. 90, 52 N. W. 324, holds that when a contract provides for the do- ing of specific work and the furnish- ing of materials but is silent as to the payment of the expense, the per- son doing the work can collect his pay in the regular manner. McEwen v. City of Nashville (Tenn. Ch. App.) 36 S. W. 968; City of Waco v. Chamberlain (Tex. Civ. App.) 45 S. W. 191; Town of Elma v. Carney, 9 Wash. 466; Morse v. Gilman, 18 Wis. 373. 867 People's Pass. R. Co. v. Mem- phis R. Co., 77 U. S. (10 Wall.) 38; City of Goldsboro v. Moffett, 49 Fed. 213. A failure to commence work considered a breach of the contract resulting in the forfeiture of a bond given "for the faithful performance of their contract." Smith v. Salt Lake City, 83 Fed. 784. Construing a contract for the construction of an aqueduct and pre- suming the making of the prelim- inary survey and location of the line. Salt Lake City v. Smith, 104 Fed. 457. A contract for the con- struction of a conduit construed with reference to the character of extra work payment for which might be recovered. County of Pike v. Hosford, 11 111. 170. The unpaid balance due on a contract for the construction of a bridge bears interest from the date of the payment and refusal to pay. City of Chicago v. Weir, 165 111. 640 POWERS. 285 na>?ce, 86S of works of public improvement; the construction, 869 lepairing, 870 and maintenance 871 of sewers, and the construction of sidewalks. 872 582. Construing the provisions of a contract with a city to dig a water tunnel and shafts, relative to the payment at a fixed price "of rock excavation" "earth tunneling" and where the "tunnel is partly in earth and partly in rock." City of Chi- cago v. Duffy, 179 111. 447. Constru- ing specifications of a contract for the construction of a water tunnel fixing the price where "the tunnel was partly in earth and partly in rock." Darnell v. Keller, 18 Ind. App. 103, 45 N. E. 676; Fox v. Bay City, 122 Mich. 499, 81 N. W. 352; McQuiddy v. Brannock, 70 Mo. App. 535; City of Camden v. Ward, 67 N. J. Law, 558, 52 Atl. 392; Slattery v. City of New York, 31 App. Div. 127, 52 N. Y. Supp. 546; Jones v. Savage, 24 Misc. 158, 53 N. Y. Supp. 308. Con- struction of a public building. Del- afield v. Village of Westfield, 169 N. Y. 582, 62 N. E. 1095; Mairs v. City of New York, 52 App. Div. 343, 65 N. Y. Supp. 160. Construing a con- tract provision that all losses result- ing from the nature of the work or imperfections of construction should be sustained by the contractor. O'Brien v. City of New York, 139 N. Y. 543. Construing the provision of a contract for the construction of an aqueduct relative to filling with masonry at the expense of the con- tractor the excess of the tunnel area. Hasbrouck v. City of Milwaukee, 17 Wis. 266. ses Bork v. City of Buffalo, 37 N. Y. State Rep. 332. sea Rauer v. Lowe, 107 Cal. 229, 40 Pac. 337; McBean v. City of San Bernardino, 96 Cal. 183; White v. Harris, 103 Cal. 528; Campau v. City of Detroit, 106 Mich. 414, 64 N. W. 336. A substantial change cannot be made in plans fixing the course and location of a sewer except as authorized by the council ordering in the first instance the construc- tion of the sewer. Gartner v. City of Detroit, 131 Mich. 21, 90 N. W. 690; Whittemore v. Sills, 76 Mo. App. 248. A delay in the construction of a sewer oc- casioned by an injunction is within the provisions of a contract provid- ing generally for delays. City of New York v. Reilly, 59 Hun, 501, 13 N. Y. Supp. 521. In the absence of a formal notice to commence work upon a sewer by the proper official, there can be no for- feiture of the contract for a failure to complete it within a specified time, although the contractor had voluntarily proceeded with the work. Smith v. City of New York, 82 Hun, 570, 31 N. Y. Supp. 783. A sewer is "in progress" within the meaning of laws of 1873, c. 335, when the excavation was begun by a force of fifty-four men and a num- ber of teams. Jones v. City of New York, 170 N. Y. 580, 63 N. E. 1118, affirming Jones v. City of New York, 60 App. Div. 622, 70 N. Y. Supp. 296; Mar- shall v. City of San Antonio (Tex. Civ. App.) 63 S. W. 138; State v. Liebes, 19 Wash. 589; Markey v. City of Milwaukee, 76 Wis. 349, 45 N. W. 28. The municipal authori- ties have no right to arbitrarily shorten a sewer against the con- * 286 POWER TO CONTRACT. 641 286. Arbitration clauses. The policy of the law is the avoidance of litigation and courts, therefore, generally sustain clauses in contracts providing for the submission 'of disputes to arbitrators to be selected in the man- ner provided by the contract. 873 The rule applied in the con- tractor's protest when all conditions court held that this would sustain of the contract have been complied a finding that no contract was ever with. Burnham v. City of Milwau- made. kee, 100 Wis. 55, 75 N. W. 1014. STS Brady v. City of Brooklyn, All oral agreements between the 1 Barb. (N. Y.) 584; Jones v. City city authorities and the contractor of New York, 60 App. Div. 161, 70 are merged in the subsequent writ- N. Y. Supp. 46. The decision of ten contract. such an arbitrator in the absence Herman v. City of Oconto, 110 of fraud or mistake is conclusive Wis. 660, 86 N. W. 681. A contract on the parties. Marshall v. City for sewer construction calling for of San Antonio (Tex. Civ. App.) the expenditure of a sum of money 63 S. W. 138; Burnham v. City of a portion of which is in excess of Milwaukee, 100 Wis. 55, 75 N. W. the constitutional limit of indebt- 1014. edness is valid to the extent of the Salt Lake City v. Smith, 104 Fed. constitutional limit and invalid as 457. "The stipulations in such con- to the excess; the contract being tracts that all questions, differences divisible. or controversies which may arise 870 Seifert v. City of Brooklyn, 15 between the corporation and the Abb. N. C. (N. Y.) 97; Van Rensse- contractor under or in reference to laer v. City of Albany, 15 Abb. N. the agreement and the specifications, C. (N. Y.) 457. or the performance or nonperform- 871 Van Vorst v. Jersey City, 27 ance of the work to which they re- N. J. Law (3 Dutch.) 493. late, shall be referred to the en- 872 Schwiesau v. Mahon, 110 Cal. gineer, and his decision thereof shall 543; Gray v. Richardson, 124 Cal. be final and conclusive upon both 460. A contract provided that the parties, does not give the engineer contractor should construct certain jurisdiction to determine that work concrete sidewalks in accordance which is not done under the con- with the specifications annexed to, tract or 'specifications, and which and made a part of, the contract, is not governed by them, was per- When the contract was offered in formed under the agreement and evidence there were no specifications is controlled by it, and his decision annexed and it was not shown that to that effect is not conclusive upon there had been any prepared; one the parties. Neither an engineer witness testified that shortly after nor a judge who has no jurisdic- the contract was executed and filed tion of a question can confer juris- in the office of the superintendent diction of it upon himself by er- of streets, he examined it, and no roneously deciding that he has it." specifications were annexed. The Abb. Corp. 41. 642 POWERS. 287b struction of railroad grading contracts quite universally holds in connection with contracts of public corporations involving the construction of public works. 874 287. Corporate contracts; their performance. (a) In general. A contract may be illegal in part, if it is sep- arable, and such is usually the case, in those for the construction of public works or the supply of municipal commodities, that por- tion which is legal can be enforced by the contractor and its per- formance to that extent insisted upon. 875 A contract legal as de- termined by the principles laid down in the preceding sections can be enforced as an entirety if performed in the manner, time and under the conditions required by its terms. 878 (b) Manner of performance. Such contracts usually provide that the work done or materials or commodities furnished shall follow specifications or be performed to the satisfaction of some designated official, 877 or that the work shall be done in a good and workmanlike manner. 878 To afford a contractor a claim for the payment for work done or materials furnished by him under such provisions, the decision in good faith that the con- ditions have been complied with by such official is necessary, 879 74 Murphy v. City of Yonkers, 45 Dist, 112 Wis. 354, 88 N. W. 310, App. Div. 621, 60 N. Y. Supp. 940. 58 L. R. A. 100; Thomson v. Town An engineer thus elected has no of Elton, 109 Wis. 589. Also 59 Am. authority, however, to pass upon St Rep. 886. questions other than those provid- 87 Buckman v. Landers, 111 Cal. ed by the contract to be determined 347, 43 Pac. 1125; Newport Wharf by him. Smith v. City of Philadel- & Lumber Co. v. Drew, 125 Cal. 585, phia, 13 Phila. (Pa.-) 177; Forristal 58 Pac. 187; Reid v. Clay, 134 Cal. v. City of Milwaukee, 57 Wis. 628; 207, 66 Pac. 262; Cody v. City of Burnham v. City of Milwaukee, 100 New York, 71 App. Div. 54, 75 N. Wis. 55, 75 N. W. 1014; Dwyer v. Y. Supp. 648; Brady v. City of New Board of Education, 27 App. Div. York, 132 N. Y. 415. 87, 50 N. Y. Supp. 123; Lawrence STT Silsby Mfg. Co. v. Town of v. City of New York, 29 App. Div. Chico, 24 Fed. 893; Gearty v. City 298, 51 N. Y. Supp. 416. of New York, 171 N. Y. 61, 63 N. STB Chapman v. Douglas County, E. 804. But power conferred upon 107 U. S. 348; Gamewell Fire-Alarm officials must be exercised with fair- Tel. Co. v. City of Laporte, 42 C. ness and in good faith, not in an C. A. 405, 102 Fed. 417; Stebbins arbitrary manner. v. Perry County, 167 111. 567; Stock- STS Murphy v. City of Yonkers, 45 dale v. School Dist. No. 2, 47 Mich. App. Div. 621, 60 N. Y. Supp. 940. 226; McGillivray v. Joint School 879 Markey v. City of Milwaukee, S 287d POWER TO CONTRACT. 643 and a decision under such circumstances will estop both parties from raising the question of a noncompliance with the contract. (c) Time of performance. A substantial compliance with pro- visions fixing the time for the commencement or completion of public work, unless time is made the essence of the contract, is all that .is necesary to give a contractor the right of compensa- tion for work done by him. 880 (d) Other conditions. Another provision often found in such contracts is one requiring the contractor to guarantee the quality of his work, both as to materials and workmanship. 881 The guar- 76 Wis. 349, 45 N. W. 28; Jones v. Town of Marlborough, 70 Conn. 583, 40 Atl. 460. esc Pitcairn v. Philip Hiss Co., 113 Fed. 493; City of Elizabeth v. Fitz- gerald (C. C. A.) 114 Fed. 547. The rule also held to apply, in this case, to the performance of the work. See also as holding the same, Mid- dlesborough Town & Land Co. v. Knoll, 21 Ky. L. R. 1399, 55 S. W. 205; Desmond-Dunne Co. v. Fried- man-Dcscher Co., 162 N. Y. 486, 56 N. E. 995; McCartan v. Inhabitants of Trenton, 57 N. J. Eq. 571. 88i Jones v. Town of Marlborough, 70 Conn. 583, 40 Atl. 460. A con- tractor cannot recover on a quan- tum meruit for repairs not made according to provided stipulations. In this case the person doing the work was not to be paid until the work was inspected and accepted as satisfactory. It was not satisfac- tory and was not accepted. The trial court nevertheless allowed a recovery on a quantum meruit. In reversing this the appellate court said: "The trial court applied in his favor the doctrine that in cer- tain cases there may be a recovery for the value of labor and materials furnished under a special contract, not strictly performed where the defendant has availed himself of. and been benefited by them and the plaintiff was not in willful default. This is not allowed in every in- stance where the part performance has been beneficial. It must also be shown that the benefit has been appropriated under circumstances sufficient to raise an implied prom- ise to pay for the reasonable value of what has been received, notwith- standing the breach of contract Towns do not own their roads nor use them. The public use them and towns are benefited by their repair only so far as they may be thus relieved of a statutory responsibil- ity for their proper maintenance. It may be that a promise to pay the value of permanent improvements, such as a stone pavement or a new bridge, furnished under a contract, though not in full accordance with it, would, under some circumstances, if they were retained as part of a highway, be implied by law; but in the case of ordinary repairs, made by one receiving an annual salary, the payment of which is made de- pendent on the favorable report of an inspector, no such obligation can arise. The town was not ex- onerated from liability under the statute unless its roads were in fact kept in good condition and as re- spects those to whom it entrusted the fulfillment of this duty in its 644 POWERS. . 2.1 antee being made efficient either through the giving of a bond by the contractor for a specified time to maintain in good con- dition the work or to make all repairs necessary on account of imperfections in the work or materials, 882 or the retention of a certain percentage of the contract price for the purpose of ac- cumulating a fund from which such repairs can be made, the work completed, or the work redone if defective, by the public corporation. 883 These provisions are generally held valid despite the 'objection that the cost of the improvement or the public work behalf, it had the right to contract for making the certificate of inspec- tion the sole criterion of what that condition was." 882 Meriwether v. Lowndes Coun- ty, 89 Ala. 362, 7 So. 198. A con- tract provision to keep a bridge in good repair and safe condition for continuous use during a period of five years held to apply where the bridge constructed was washed away by a flood within that time. Osburn v. City of Lyons, 104 Iowa, 160, 73 N. W. 650. Such a condi- tion does not make the contractor liable for repairs made necessary by excavations in the streets. City of Louisville v. Selvage, 21 Ky. L. R. 349, 51 S. W. 447; State v. City of New Orleans, 51 La. Ann. 699; State v. New Orleans & C. R. Co., 52 La. Ann. 1570. An ob- ligation to keep a street in good re- pair may involve the use of "new material." Such material may be used in making the ordinary re- pairs required by the conditions of the contract. Warren-Scharf Asphalt Pav. Co. v. City of St. Paul, 69 Minn. 453, 72 N. W. 711; Robertson v. City of Omaha, 55 Neb. 718, 44 L. R. A. 434; Wilson v. Inhabitants of Tren- ton, 61 N. J. Law, 599, 44 L. R. A. 540, 40 Atl. 575. sss j. M. Griffith Co. v. City of Los Angeles (Cal.) 54 Pac. 383; King v. Mahaska County, 75 Iowa, 329, 39 N. W. 636; Wilson v. In- habitants of Trenton, 61 N. J. Law, 599, 40 Atl. 575. "Property own- ers are not chargeable with the price of such improvements (paving) but only with an equivalent for the spe- cial benefits they derive therefrom. Such an equivalent cannot exceed the reasonable value of the improve- ment and hence the municipality it- self, not the assessable property own- ers, must bear the excess of price beyond fair cost. If, therefore, the commissioners who levy an assess- ment for this improvement charge upon the property owners anything beyond the fair cost of laying a good pavement, their assessment will to that extent be illegal. The same evidence which would now show that the nominal price for paving includes compensation for the guaranty and for repaving will be then available for the same pur- pose, and if produced, will result in reducing the assessment to such sum as would have secured a prop- er pavement without the added stip- ulations." O'Brien v. City of New York, 15 N. Y. Supp. 520; Jones v. Savage, 24 Misc. 158, 53 N. Y. Supp. 308; People v. Third Nat. Bank of Syracuse, 159 N. Y. 382. 288 POWER TO CONTRACT. 645 may sometimes be arbitrarily or unnecessarily increased in viola- tion of some charter or statutory obligation or rule. 884 (e) Performance by the public corporation as a party to the contract. The performance of the contract in accordance with its terms and conditions is as obligatory upon the public cor- poration as upon the other party or parties to it. The corpora- tion cannot, when the contract has been fully performed by the other party, willfully refuse to perform its obligations especi- ally where it has received and retains its benefits. 885 288. A contract ; its performance ; acceptance of work. Contracts for the construction of public works usually require that the work shall be constructed under the supervision and to the satisfaction of some designated official or official body, and further, that upon the final completion of the whole, the com- pleted work shall be inspected and formally accepted in the manner provided either by the charter of the corporation or the terms of the contract. 886 In the absence of fraud, such action 884 Brown v. Jenks, 98 Cal. 12; City of Portland v. Bituminous Pav. Co., 33 Or. 307, 44 L. R. A. 527. See, however, as holding to the con- trary, the cases of Alameda Macad- amizing Co. v. Pringle, 130 Cal. 226, 62 Pac. 394, 52 L. R. A. 264; and Wilson v. Inhabitants of Trenton, 61 N. J. Law, 599, 40 Atl. 575, 44 L. R. A. 540. sss Town of Gosport v. Pritchard, 156 Ind. 400, 59 N. E. 1058. Where a town refuses payment claiming the contract void, action should be brought for the amount due upon the contract. City of Logansport v. Dykeman, 116 Ind. 15; Seward v. Town of Liberty, 142 Ind. 551; City of New Orleans v. Wardens of St. Louis Church, 11 La. Ann. 244; Western Sav. Fund Soc. v. City of Philadelphia, 31 Pa. 175; Norton v. City of Roslyn, 10 Wash. 44. See, also, authorities cited 279. sse Reid v. Clay, 134 Cal. 207, 66 Pac. 262. In this case the court had under consideration a statute (Gen. St. Cal. 1885, p. 151) which provided that the materials used in street improvements "shall comply with the specifications and be to the satisfaction of [the] superintendent of streets." A contract for street improvements provided that the con- tractor must do the work "in a good and workman-like manner, under the direction and to the satisfaction of the superintendent of streets, in compliance with the specifications hereunto attached and made part of this contract." The court held this provision a sufficient compliance with the statutory requirement. Town of Colorado City v. Town- send, 9 Colo. App. 249; Gulick v. Connely, 42 Ind. 134. The accept- ance by city authorities of work is only prima facie evidence that it has been done in substantial com- pliance with the terms of the con- POWERS. 288 establishing the completion of work, and the fact that the contract in all its terms and conditions has been complied with, is con- clusive and binding upon both parties. 887 Official action of this nature is especially conclusive and binding upon abutting prop- erty owners who raise no objection until the completion of the contract and the acceptance of the work. 888 A certificate of per- formance, approval or acceptance as it is usually termed is gen- tract. Creston Waterworks Co. v. City of Creston, 101 Iowa, 687; Dumesnil v. Louisville Artificial Stone Co., 109 Ky. 1, 58 S. W. 371; Richardson v. Mehler, 111 Ky. 408, 63 S. W. 957. SST City of Omaha v. Hammond, 94 U. S. 98; Fitzgerald v. Walker, 55 Ark. 148; Ryan v. City of Dubuque, 106 Iowa, 312, 76 N. W. 703; White- field v. Hippie, 11 Ky. L. R. 386, 12 S. W. 150; Alpena City Water Co. v. City of Alpena, 130 Mich. 518, 90 N. W. 323. The rule applied to a contract for the supply of water, and full payment by the city from time to time for water furnished under the contract held to consti- tute an estoppel. Schliess v. City of Grand Rapids, 131 Mich. 52, 90 N. W. 700; O'Dea v. City of Winona, 41 Minn. 424; McCormick v. City of St. Louis, 166 Mo. 315, 65 S. W. 1038; O'Brien v. City of New York, 15 N. Y. Supp. 520; Smith v. City of New York, 12 App. Div. 391, 42 N. Y. Supp. 522; People v. Coler, 26 Misc. 509, 57 N. Y. Supp. 461; People v. Coler, 58 App. Div. 131, 68 N. Y. Supp. 448; Brady v. City of New York, 132 N. Y. 415. Peck v. State, 137 N. Y. 372. Where, however, there is no authority vest- ed in certain officials to make such certificate and accept work, their action in this respect will not he binding. Malone v. City of Phila- delphia, 12 Phila. (Pa.) 270. sss McCoy v. Able, 131 Ind. 417, 30 N. E. 528, 31 N. E. 453. The court here say: "The contract sub- mitted many things to the discre- tion and judgment of the engineer, and, if the contract was not as defi- nite and certain as the law requires, the appellees ought to have made that question before the work was completed. Principle and authority forbid that property owners should be allowed to stand by inactive and passive until after the work has been done and then come in and take from a contractor the value of his work and materials without compensation. For such persons the law has no very tender regard. They ought to move promptly and not wait until the contractor has ex- pended time and money under the directions and requirements of the board of commissioners and its en- gineer. As the contractor in this instance has obeyed the orders of the proper officers, has followed the construction placed upon the con- tract by them and has fully com- pleted his work, the appellees are estopped from questioning his right to compensation upon the ground that the contract did not conform to the law." City of Evansville v. Pfis- terer, 34 Ind. 36; City of Logansport v. Uhl, 99 Ind. 531; Stewart v. Wy- andotte County Com'rs, 45 Kan. 708; 289 POWER TO CONTRACT. 647 erally necessary that the contractor may recover from the public corporation the compensation to which he is entitled according to the terms of the contract. 888 289. Fraud as rendering a contract invalid. The usual rule that the existence of fraud either in the execu- tion or the performance of a contract will entitle the party seek- Smith v. Hubbard, 85 Tenn. 306, 2 S. W. 569. 889 City of Elizabeth v. Fitzger- ald (C. C. A.) 114 Fed. 547. A contractor is not deprived, however, of the right to recover for work which has been done in substan- tial conformity with the conditions of the contract because the city offi- cials arbitrarily and unreasonably refuse to accept and approve the work as required by law. The court here say: "The second question pro- pounded to the jury correctly as- sumed that the contract provided for certification of the work by the city surveyor and for its approval and acceptance by the committee on streets and parks as well as by the street commissioner and the in- spector, and also that such certifica- tion, approval and acceptance had been severally refused; so that the only question submitted was, were they unreasonably refused? We have already said that this question if legally pertinent, was properly re- ferred to the jury, and we now add that in our opinion, it was a ma- terial and important question in, the cause. As was said by the learned trial judge, the plaintiff could not, by unreasonable refusals to certify and approve his work 'be deprived of the fruits of his labor.' * * * Hence, it must be understood that by answering the second question affirmatively, the jury found that the officers of the city in refusing the certification and approval in question had acted, not upon hon- est belief that the work had not been done according to the contract, but whimsically and without cause; and surely such conduct, may, without exaggeration, be characterized as unreasonable. Had then the defend- ant's officers the right to arbitrarily refuse the certificates and approval called for by the contract? Both in reason and upon authority it is clear that they had not." Jones v. Town of Marlborough, 70 Conn. 583, 40 Atl. 460; Campbell County v. Youtsey, 11 Ky. L. R. 529, 12 S. W. 305; Gosnell v. City of Louisville, 22 Ky. L. R. 365, 57 S. W. 476; Kansas City v. Walsh, 88 Mo. App. 271; Bowery Nat. Bank v. City of New York, 2 T. & C. (N. Y.) 523; Weston v. City of Syracuse, 158 N. Y. 274, 43 L. R. A. 678; Smith v. Hubbard, 85 Tenn. 306, 2 S. W. 569. The use by the public for five years of a bridge and the fact that jurors as provided by law appointed by the county court, examined and approved it, estop the municipality from setting up as a defense its lack of character as a public bridge. Smith v. Jefferson County, 16 Tex. Civ. App. 251, 41 S. W. 148. See, also, 14 Am. St. Rep. 422. 648 POWERS. 290 ing it to equitable relief or to a cancellation and rescission of the contract applies to the contracts of public corporations. 890 290. The right of the parties to maintain an action based upon a contract. In the execution of every contract for the construction or main- tenance of either a work of local or public improvement, the pub- lic corporation and the contractor are the direct parties. The moneys received by the contractor for his work, and the labor and materials furnished, are usually raised by the levy of taxes upon abutting property and in many instances his right to the re- covery of compensation due him under the contract is limited to the sums collected from such taxes and the obligation due from the corporation to see that they are levied and collected by the proper authorities. Indirectly, there is also another party in- terested in the performance of the contract, namely, the abutting property owner, who may, but who usually does not, have any right to relief either in the event of an improper performance of such contract, its abandonment or a total failure to comply with its conditions. 891 The right of x>ne party executing the contract to maintain an action for a failure on the part of the other to comply with its conditions is not denied. 892 sao Maeon v. City of Des Moines, its contracts which contain no stipu- 108 Iowa, 658, following Carthan v. lation pour autrui." Handy v. City Lang, 69 Iowa, 384. In the former of New Orleans, 39 La. Ann. 10 /; case the court held that irrespective Barber Asphalt Pav. Co. v. Gogreve, of any intention to commit fraud, 41 La. Ann. 251; Basselin v. Pate, the mere fact that the contractor 30 Misc. 368, 63 N. Y. Supp. 653. did not furnish enough cement to ** 2 Prowers County Com'rs v. Be- do the paving as it should be done dell, 13 Colo. App. 261, 57 Pac. 187; would afford grounds for a cancella- State v. New Orleans & C. R. Co., tion of the contract. Thilemann 52 La. Ann. 1570; Hayden v. In- v. City of New York, 66 App. Div. habitants of Madison, 7 Me. 455, 73 N. Y. Supp. 352; City of (7 Greenl.) 76. A contract for the Tacoma v. Tacoma Light & Water construction of a road may be re- Co., 16 Wash. 288. scinded by mutual agreement ac- si Loeber v. New Orleans & C. R. tual or implied, and in such case, Co., 41 La. Ann. 1151, 5 So. 60. "In for the work done under such con- proper cases and proper averments tract before its rescission, recovery the citizen or taxpayer may sue to can be had on a quantum meruit. enforce or restrain municipal action, Wentink v. Chosen Freeholders of but he cannot sue in affirmance of ,Passaic County, 66 N. J. Law, 65, 48 291 POWER TO CONTRACT. 649 291. Delay in the performance of a contract. The contract may require within a certain time after its formal execution the commencement of the work or there may be a time limit set for its completion. 893 In such a case the right 'of the parties may be affected by a delay either in the time fixed by the contract or by law for the commencement of the work or in its completion. An unexcused delay, or one n'ot waived, may be considered a breach of the contract that entitles the party suffering injury to its forfeiture or to damages. 894 The prospec- tive injury may be determined in advance and compensation agreed upon in the form of liquidated damages. 895 Such a pro- Atl. 609. Where a contract has been set aside because of irregularity, the contractors may recover for work and materials furnished under the contract on a quantum meruit and proportional to the total con- tract price. People v. Denison, 19 Hun (N. Y.) 137; Reilly v. City of Albany, 40 Hun (N. Y.) 405; Jones v. City of New York, 60 App. Div. 622, 70 N. Y. Supp. 296; Thilemann v. City of New York, 66 App. Div. 455, 73 N. Y. Supp. 352. sssRauer v. Lowe, 107 Cal. 229; Williams v. Bergin, 127 Cal. 578, reversing 57 Pac. 1072. as* McQuiddy v. Brannock, 70 Mo. App. 535. The provision fixing the time within which the work shall be performed is equivalent to an agreement that if not completed within that time, there is no per- formance and the contractor cannot recover on a quantum meruit. Bietry v. City of New Orleans, 22 La. Ann. 149; People v. Brennan, 18 Abb. Pr. (N. Y.) 100. A forfeiture incurred by delay may be waived by the municipality. Jones v. City of New York, 171 N. Y. 628, 63 N. E. 1118, affirming 60 App. Div. 622, 70 N. Y. Supp. 296; Chandley v. Borough of Cambridge Springs, 203 Pa. 139, 52 Atl. 87. "At the time fixed for the commencement of the work, the borough had not succeed- ed in selling the bonds it had issued to provide the means of payment. The plaintiff began at once the build- ing of an impounding well but de- layed ordering the pipe and pumps because the bonds had not been sold. If this delay were the sole cause of the noncompletion in time, the re- sponsibility would rest with him. He took the chance of prompt pay- ment when he entered into the con- tract, and was not justified in de- laying the work because the borough did not have the money in its treas- ury in advance of the time it was due him." 895 Boyce v. United States Fidelity & Guaranty Co. (C. C. A.) Ill Fed. 138; City of Terre Haute v. Lake, 43 Ind. 480; Jones v. City of New York, 60 App. Div. 622, 70 N. Y. Supp. 296, affirmed 170 N. Y. 580, 63 N. E. 1118; Gearty v. City of New York, 62 App. Div. 72, 70 N. Y. Supp. 942; Cody v. City of New York, 71 App. Div. 54, 75 N. Y. Supp. 648. The failure to perform a prescribed portion of the contract within the required time does not warrant a forfeiture of the entire 650 POWERS. 291 vision, it has been held, is not inconsistent with others giving the corporation the power to declare the contract terminated because of delay, either in the progress of work, or the time of completion. 898 If, however, the delay has been waived or excused by authority equal in extent and power to that original- ly the source of authority for the execution of a contract al- though there may be resulting injury, yet such injury cannot be made the basis of an action for damages. 897 An extension of time should ordinarily be made in the same manner and un- der the same conditions as the original execution of the con- tract. 898 A parql agreement to extend the time for the perform- contract Nichols v. City of Su- perior, 109 Wis. 643, 85 N. W. 428. 896 Boyce v. United States Fidelity & Guaranty Co. (C. C. A.) Ill Fed. 138. In this case there was the stipulation that if the contractor "shall fail to commence or proceed with the work to the satisfaction of the said trustees, it is agreed that said trustees may give or cause to be given notice or notices in writ- ing to said contractor. * * * And in case said contractor shall, for ten (10) days after such no- tice, fail to commence or regularly proceed with the work to the satis- faction of said trustees, all rights of the said contractor under this contract shall therefrom terminate and it is agreed that said trustees may declare this contract, as to any and all rights of said contractor thereunder, forfeited, annulled and wholly cancelled, and take away, hold and complete said work by re-letting the unfinished part there- of or completing the same by day work, or otherwise as may be for the best interest of the said first party in the judgment of said trus- tees." The court said: "The par- ties expressly made the completion of the contract by the day named aa integral part of the contract and it was clearly the purpose of the above stipulation to secure its full and complete performance in this respect as well as in others. It would have defeated this purpose if the city was required to lie by, wliile the other party was neglecting the work, until the day for completion had been reached. The public interests and convenience might" be seriously delayed by tying up the hands of the city after it was demonstrated that the contractor either, would not, or could not, with his facilities finish his undertaking within the appointed time; and we are con- vinced that such considerations were the reason on which it was stipulated that the board of trustees should have power to determine whether the progress of the work gave reasonable ground for expect- ing the due fulfillment of the work." 87 City of Philadelphia v. Hays, 93 Pa. 72; McKnight v. City of Pitts- burgh, 91 Pa. 273. 898 Buckman v. Landers, 111 Cal. 347, 43 Pac. 1125. The extension necessarily need not be endorsed on the contract before the expiration of the time originally fixed for the con- templation of the work. "The rec- 291 POWER TO CONTRACT. 651 ance of work cannot affect a written contract. A failure to comply with contract requirements for the construction of public improvements, or fixing the time for the completion of the work, may invalidate the contract, when all proceedings pending for the levy and collection of taxes upon abutting property for the payment of such improvement become invalid. 899 If a contractor fail to finish work within the required time, the city, however, may go on and complete it. 900 When this is done the assessments are not rendered invalid by such failure. If the delay in the work has been occasioned through acts of the corporation, not ord shows that the work was com- pleted within the time fixed for its completion by the superintendent of streets and the subsequent exten- sions thereof authorized by the board of supervisors. It does not appear at what time the superintendent in- dorsed these extensions upon the contract and the prima facie charac- ter of the documentary evidence in- troduced includes the 'regularity and correctness' of his acts. It was not requisite that he should indorse an extension upon the contract before the expiration of the time originally fixed therein." McVerry v. Boyd, 89 Cal. 304; Ede v. Knight, 93 Cal. 159. 899 Murdock v. District of Colum- bia, 22 Ct. Cl. 464; Mappa v. City of Los Angeles, 61 Cal. 309; Village of Morgan Park v. Gahan, 136 111. 515, 26 N. E. 1085. An invalid as- sessment, however, affords no ex- cuse to a contractor to abandon his contract where the improvement is to be paid with the proceeds of such assessment. In this case an appeal from a judgment of the lower court in favor of contractors whose bid had been accepted on a local im- provement for a deposit they had made as required by the terms of the ordinance was affirmed, the court holding "that an advertisement by a village for bids for work on a local improvement to be paid for by spe- cial assessment, while it charges the biduer with notice of the ordinance providing for the improvement in question, does not affect them with notice of a subsequent ordinance providing the method in which the special assessment may be levied; and where an ordinance providing for a local improvement declares that it shall be paid for by special assessment the passage of a subse- quent invalid ordinance providing that the assessment shall be paid in ten annual instalments is such an attempt to change the proposed con- tract as will justify the bidder in refusing to execute it." Trustees of United Brethren in Christ Church v.Rausch,122Ind.!67; Lake Erie & W. R. R. Co. v. Walters, 13 Ind. App. 275, 41 N. E. 465. The rule will not apply, however, where the delay has been occasioned by causes entirely beyond the control of the contractor. Rose v. Trestrail, 62 Mo. App. 352; In re Anderson, 47 Hun (N. Y.) 203. oo School Town of Winamac v. Hess, 151 Ind. 229, 50 N. E. 81, and cases cited; Newton v. Devlin, 134 Mass. 490; Simermeyer v. City of New York, 16 App. Div. 445, 45 N. Y. Supp. 40. 652 POWERS. 292 only will it be liable for the work constructed although completed after the contract time, 901 but it will be liable to the contractor for any special damages which he may have suffered by reason of such delay. 902 292. The assignment of a contract. As suggested in a preceding section, in all municipal contracts for the construction of public improvements, there are three par- ties interested, those .executing the contract and abutting prop- 9oi Hellman v. Shoulters, 114 Cal. 136; City of Dunkirk v. Wallace, 19 Ind. App. 298, 45 N. E. 614; 49 N. E. 463; George G. Fetter Co. v. Courier- Journal Job Printing Co., 20 Ky. L. H. 614, 47 S. W. 241; State v. McCardy, 87 Minn. 88, 91 N. W. 263; Guilders v. Holmes, 95 Mo. App. 154, 68 S. W. 1046; Hardi- man v. City of New York, 21 App. Div. 614, 47 N. Y. Supp. 786; John- son v. City of Mt. Vernon, 34 App. Div. 37, 53 N. Y. Supp. 1063; Dady v. City of New York, 57 Hun (N. Y.) 456; Jones v. City of New York, 170 N. Y. 580, 63 N. E. 1118, affirm- ing 60 App. Div. 622, 70 N. Y. Supp. 296; Mairs v. City of New York, 52 App. Div. 343, 65 N. Y. Supp. 160; Jones v. City of New York, 60 App. Div. 622, 70 N. Y. Supp. 296 (A disputed cause of delay is a question of fact for a jury to deter- mine) ; Episcopo v. City of New York, 35 Misc. 623, 72 N. Y. Supp. 140; Leeson v. City of New York, 65 App. Div. 105, 72 N. Y. Supp. 538; Thilemann v. City of New York, 66 App. Div. 455, 73 N. Y. Supp. 352; Cody v. City of New York, 71 App. Div. 54, 75 N. Y. Supp. 648; Mont- gomery v. City of New York, 151 N. Y. 249. The rejection of ma- terials causing delay is no excuse for the non-completion of the work within the time fixed. 902 Brady v. City of St. Joseph, 84 Mo. App. 399; Markey v. City of Milwaukee, 76 Wis. 349, 45 N. W. 28. "If the board refused to permit the plaintiff to perform that part of his work which is set up in the com- plaint as the basis of his action tin- der this provision in the contract, that fact might be a defense to the action; but such defense must be raised by an answer and is not raised by a demurrer to the com- plaint. The allegation of the com- plaint is 'that the city by its duly- constituted officers, caused the plans and specifications for doing said work to be modified and changec, whereby the lateral sewers con- tracted to be constructed by the plaintiff were shortened to the ex- tent of 176 feet, against the will and protest of the plaintiff. We find no provision in the contract which authorizes the city arbitrarily to modify or change the contract made with the plaintiff and if the ci';v has modified or changed the contract for any cause which authorized it to do so, such fact must be set up as a defense to the action; but under the allegations of the complaint, it can- not be presumed that such alteration was authorized." 292 POWER TO CONTRACT. 653 erty owners. Ordinarily, the public corporation is interested only in the performance of the work according to the terms and con- ditions of the contract ; the individuality of the contractor is not considered, and, therefore, unless prohibited by law, the original party to the contract may with the consent of the authorities, assign all his rights in and to such contract. The assignee then stands in the place of and succeeds to all the rights of his as- signor and assumes all his obligations whether arising under the provisions of the contract, 903 or depending upon the levy and collection of special assessments. 004 The abutting property owner is but indirectly interested, and, therefore, has no right to prevent, if otherwise it can be legally done, the assignment of such a contract, and the mere fact that there has been a substitution of legal parties does not give him a right to resist the collection of special assessments levied for 903 French v. Powell, 135 Cal. 636, ing it complies with all the condi- 68 Pac. 92; Suburban Elec. Light Co. tions. v. Town of Hempstead, 38 App. Div. o* Bernstein v. Downs, 112 Cal. 355, 56 N. Y. Supp. 443; Episcopo 197, 44 Pac. 557; Foley v. Bullard, v. City of New York, 35 Misc. 623, 99 Cal. 516; Diggins v. Hartshorne, 72 N. Y. Supp. 140; Ernst v. Kunkle, 108 Cal. 154; Taber v. Ferguson, 109 5 Ohio St. 523; City of Philadelphia Ind. 227, 9 N. E. 723; Deffenbaugh v. 'Lockhardt, 73 Pa. 211; Southern v. Foster, 40 Ind. 382. Where the Pav. Co. v. City of Chattanooga contract provides that the consent of (Tenn. Ch. App.) 48 S. W. 92; Mar- the common council is necessary, shall v. City of San Antonio (Tex. such consent must be shown before Civ. App.) 63 S. W. 138; Robertson the assignee can recover on the con- v. King County, 20 Wash. 259, 55 tract. City of Dunkirk v. Wallace, Pac. 52. An assignment of a claim 19 Ind. App. 298, 49 N. E. 463; Sims or contract to one prohibited by law v. Hines, 121 Ind. 534; McCubbin v. from being interested in contract City of Atchison, 12 Kan. 166; City work to be done within the limits of St. Louis v. Clemens, 42 Mo. 70; of a designated public corporation Jones v. Savage, 24 Misc. 158, 53 N. held void. Cook v. City of Menasha, Y. Supp. 308; Suburban Elec. Light 103 Wis. 6, 79 N. W. 26. The con- Co. v. Town of Hempstead, 38 App. sent of the municipality is neces- Div. 355, 56 N. Y. Supp. 443. The sary to the legal assignment, fol- consent of the public corporation lowing and quoting from Skobis v. will be necessary to a legal assign- Ferge, 102 Wis. 122, 78 N. W. 426. ment under Laws 1897, c. 444. Dev- Herman v. City of Odfcnto, 100 lin v. City of New York, 63 N. Y. 8; Wis. 391. The execution of a con- City of Philadelphia v. Lockhardt, tract for the benefit of an undis- 73 Pa. 211 ; Brace v. City of Glovers- closed principal does not render it ville, 167 N. Y. 452. invalid if the party actually execut- 654 POWERS. 293 the express purpose of paying the obligation of the contract, namely, the cost of the improvement. 293. Rights of parties. The public corporation as a party to a contract is interested in and has the right to enforce its performance in accordance with its terms and conditions. 906 A failure to carry out the contract or its imperfect performance by the contractor confers no rights ordinarily upon an abutting property owner, the taxes upon whose property provide for the cost of the improvement. 908 BOS City of Milwaukee v. Shailer (C. C. A.) 84 Fed. 106. A city, how- ever, cannot recover damages for a failure, to execute a contract in ac- cordance with its conditions when the uncompleted work as construct- ed by the city is essentially different from that provided by the contract. In this case the board of public works undertook to change the route as contracted for and finish it at the expense of the contractors. 7he court said: "The engineer of the city had reported the prescribed line to be impracticable but the reso- lution of the board was silent on that point and was too indefinite in respect to the course and ending of the detour ordered to be regarded as establishing a new line or as amounting to an irrevocable aban- donment of the old line; but it necessarily resulted that, when the work was taken out of the hands of the contractors, and the board of public works undertook to complete the tunnel, it was bound to proceed on the line of the agreement and could not then change the line and have the right to charge the contract- ors with the extra expense of con- struction. By the contract, power was reserved to the board to change the plans and specifications, but with equal explicitness it was pro- vided that the price of extra work caused by a change should be agreed upon by the board and by the con- tractors before the work should be commenced. Practically, therefore, no ciiange involving extra work could be made except by mutual agree- ment, and it certainly was not in the power of the board to suspend work by the contractors, and then adopt new plans to be worked out at their expense. If the original line was practicable, the board had its choice to finish the tunnel on that line and to look to the con- tractors for the expense in excess cf the contract price or to treat the contract as at an end and do with the work as it saw fit. If the line was impracticable, the contractors, on the discovery of the fact, were entitled to abandon the work and it was not in the power of the board to require of them, against their consent to construct a tunnel on dif- ferent plans and specifications." Town of Grand Isle v. Kinney, 70 Vt 381, 41 Atl. 130. 906 Allen v. City of Davenport, 107 Iowa, 90, 77 N. W. 532; Seaboard Nat. Bank v. Woesten, 147 Mo. 467, 48 S. W. 939, 48 L. R. A. 279; City of Philadelphia v. Jewell, 135 Pa. :< POWER TO CONTRACT. 655 A failure of public officials to properly perform some of their duties in connection with the execution or carrying out of the contract cannot affect the right of the contractor or his assignee to enforce its obligations. 907 294. Payment of contract obligations. The obligation assumed by a public corporation under a con- tract may be general and payable from funds raised by general taxation or special and payable only from moneys raised by special assessments upon designated property. In the former case the contractor or his assignee can compel payment from the gen- eral funds at the disposal of the corporation ; 90S if the obligation for the payment is based upon a special fund he is limited in his recovery to such fund. 009 329, 19 Atl. 947. A property owner may, however, avail himself of statu- tory rights; in this case Act Pa. April 19, 1843 (P. L. 342). To the contrary see Lodor v. McGovern, 48 N. J. Eq. 275. 907 McVerry v. Boyd, 89 Cal. 304; Diggins v. Hartshorne, 108 Cal. 154; \Vells v. Wood, 114 Cal. 255. "The point that the superintendent of streets failed to record the entire contract at the proper time, even if conceded, is of no consequence affecting any right of the contrac- tor." Bigelow v. Inhabitants of Perth Amboy, 25 N. J. Law (1 Dutch.) 297. 908 First Nat. Bank of Du Quoin v. Keith, 183 111. 475; City of New Al- bany v. Sweeney, 13 Ind. 245; Mc- Cubbin v. City of Atchison, 12 Kan. 166; Tournier v. Municipality No. 1, 5 La. Ann. 298. A city is liable where it guarantees the payment of the contract price upon a failure of the abutting owners to pay their proportion of same, also held in Cronan v. Municipality No. 1, 5 La. Ann. 537; City of New Orleans v. Elliott, 10 La. Ann. 59; Patterson v. City of New Orleans, 20 La. Ann. 103; Warren-Scharf Asphalt Pav. Co. v. City of St. Paul, 69 Minn. 453; Woolsey v. Village of Rondout, 4 Abb. Dec. (N. Y.) 639; City of Bel- ton v. Sterling (Tex. Civ. App.) 50 S. W. 1027. BOS City of Pontiac v. Talbot Pav. Co. (C. C. A.) 96 Fed. 679, denying a rehearing in 94 Fed. 65, 48 L. R. A. 326; City of Alton v. Foster, 74 111. App. 511; Hoblit v. City of Bloomington, 87 111. App. 479. A contractor is not entitled to interest upon a fund collected from special assessments eventually to be paid him but temporarily withheld. City of Huntington v. Force, 15fi Ind. 368; Succession of Erwin, 16 La. Ann. 132. A contractor may proceed against the abutting prop- erty owner. Moylan v. City of New Orleans, 32 La. Ann. 673; Wheeler v. City of Poplar Bluff, 149 Mo. 36; City of Cin- cinnati v. Cameron, 33 Ohio St. 336; Comstock v. Incorporated Village of Nelsonville, 61 Ohio St. 288, 56 N. E. 15; German-American Sav. Bank v. City of Spokane, 17 Wash. 315, 656 POWERS. 294 The payment of compensation depends first, upon the validity of the contract; if executed without proper authority or not in the manner required by law, and therefore invalid, the contractor in case of nonpayment cannot recover in an action based upon it. 910 In these instances to effect a substantial equity between 47 Pac. 1103, 49 Pac. 542, 38 L. R. A. 259. Mandamus will lie to en- force an assessment for the pur- pose of creating a fund for the pay- ment of certain obligations. Hohl v. Town of Westford, 33 Wis. 324. Where funds accumulated for the purpose of paying for local im- provements are improperly used for other purposes, the town will not be relieved from the liability on a con- tract for their construction. The court say: "The town drainage fund was created by c. 151, Laws of 1869. That act provides that certain drain- age moneys shall be apportioned to the several towns and refers to the moneys so apportioned to any town as belonging to the town; it pro- vides that the money shall go into the hands of the town treasurer and when paid into the town treasury, it shall be denominated the drain- age fund of the town and if not needed for drainage purposes it may be applied to the support of schools. True the law places the fund under the control of the town board of supervisors and provides that the same shall be expended under their direction for the purposes specified in the act; but these provisions merely /designate the agencies through which the town shall act in disposing of the fund and do not relieve it from its obligations as cus- todian and trustee thereof. * * * In contemplation of law there was at the time mentioned, more than sixty dollars of the drainage fund in the town treasury. The fact that the supervisors had used it, without legal authority for another purpose cannot relieve the town from lia- bility. The plaintiff had the right to assume that there was money belonging to that fund in the treas- ury and to contract on the faith of it and if he did so, and has per- formed his contract, the wrongful act of the agents of the town in using the fund for an unauthorized purpose cannot destroy his contract and exonerate the town from liabil- ity on account thereof. So far as he is concerned, there was a suffi- cient drainage fund belonging to the town to pay him for his work and the town, as the trustee of that fund, is bound to apply the same to tnat purpose." 910 Richardson v. Grant County, 27 Fed. 495. No recovery can be had on a quantum meruit. Game- well Fire-Alarm Tel. Co. v. City of Laporte (C. C. A.) 102 Fed. 417, af- firming 96 Fed. 664. Newman v. Sylvester, 42 Ind. 106. The rule ap- plied where the improvement was made under a misapprehension of the facts, outside the city limits, both parties as to the facts having equal knowledge. Fox v. City of New Orleans, 12 La. Ann. 154; Seibrecht v. City of New Orleans, 12 La. Ann. 496; War- ren v. Inhabitants of Durham, 61 Me. 19; Newbery v. Fox, 37 Minn. 141. "The doctrine of ultra vires has. with good reason, been applied with greater strictness to municipal bodies than to private corporations. 294 POWER TO CONTRACT. 657 parties, he is usually permitted to recover for the work done, materials furnished or services rendered upon a quantum meruit or valebant. 911 The payment of compensation again may depend and, in general, a municipality is not estopped from denying the validity of a contract made by its officers when there 'has been no authority for making such a con- tract. A different rule of law would in effect vastly enlarge the power oi public agents to bind a municipality by contracts, not only unauthorized, but prohibited by the law. It would tend to nullify the limitations and restrictions imposed with respect to the powers of such agents and to a dangerous extent expose the public to the very evils and abuses which such limitations are designed to pre- vent. In the case here presented it .s not to be denied that the town council had no authority to make this contract; that the charter set forth the conditions which would au- thorize such a contract to be made; that those prescribed conditions had not been fulfilled, nor did the defend- ant believe that they had been. The most that appears in his favor is that without being misled or mistaken as to the fact, but being warned that the contract was void, he neverthe- less judged that it was legally valid ; and being also so advised by the members of the council, he took the risk of performing it. The contra ~c, being thus unauthorized, was not effectual as a contract, and the de- fendant does not Appear in a posi- tion entitling him to invoke the doc- trine of estoppel to aid him in en- forcing his claim as though the con- tract were obligatory upon the town." State v. Rickards, 16 Mont. 145, 2 L. R. A. 298; State v. City of Hel- Abb. Corp. 42. ena, 24 Mont. 521, 63 Pac. 99, 55 L- R. A. 336; Tappan v. Long Branch Police S. ft I. Commission, 59 N. J. Law, 371, 35 All. 1070. But a mere irregularity constitutes no defense in an action on a contract. Brady v. City of New York, 7 Abb. Pr. (N. Y.) 234; Nichols v. State, 11 Tex. Civ. App. 327, 32 S. W. 452; Berlin Iron Bridge Co. v. City of San An- tonio (Tex. Civ. App.) 50 S. W. 408; Berwind " Galveston & H. Inv. Co., 20 Tex. Civ. App. 426. 50 S. W. 413; Silliman v. Fredericksburg. O. & C. R. Co., 27 Grat. (Va.) 119; Bill v. Town of Woodbury, 54 Vt 251, 87 Am. Dec. 423. n Bill v. City of Denver, 29 Fed. 344. The rule applied to the pay- ment of services rendered. Illinois Trust & Sav. Bank v. Arkansas City Water Co., 67 Fed. 196; La Corpor- ation de Notre Dame de Bonsecours v. Bessette, Rap. Jud. Que. 9 B. R. 423; San Juan County Com'rs v. Tulley, 17 Colo. App. 113, 67 Pac. 346; Dawson Water-Works Co. v. Carver, 95 Ga. 565. The rule applied to the payment by the city for water already consumed, without a con- sideration of the validity of the con- tract. City of Chicago v. Norton Mill, Co., 97 111. App. 651; Westbrook r Middlecoff, 99 111. App. 327; Sani- tary Dist. of Chicago v. George F. rflake Mfg. Co., 179 111. 167; State Board of Agriculture v. Citizens' bt. R. oo., 47 Ind. 407; Schipper v. City of Aurora, 121 Ind. 154, 6 L. R. A. 318; Reichard v. Warren County, 31 Iowa, 381. But the acceptance amd occupancy of a public building will 658 POWERS. 294 upon the performance of the contract according to its terms and conditions. If there is a failure to perform or an imperfect per- formance, advantage can be taken of these conditions by the pub- lic corporation and payment refused. It is then questionable if the contractor can recover. 912 The failure, however, on the part not enable the contractor to recover on a quantum meruit for that por- tion of its cost in excess of the amount authorized by law. Sleeper v. Bullen, 6 Kan. 300. The acceptance of the work and the levy- ing of a tax, it is held here, estop the city from denying the validity of a contract. City of Concordia v. Hagaman, 1 Kan. App. 35, 41 Pac. 133; Nicholasville Water Co. v. Councilmen of Nicholasville, 18 Ky. L. R. 592, 36 S. W. 549; City of Louisville v. McNaughten, 19 Ky. L. R. 1695, 44 S. W. 380; City of Louis- ville v. Gosnell (Ky.) 61 S. W. 476; Wiley v. Inhabitants of Athol, 150 Mass. 426; City of Detroit v. Michi- gan Pav. Co., 36 Mich. 335. The rule is different where a valid contract has been abandoned by a contractor; he cannot recover for the labor and materials furnished by him upon the uncompleted work. Sykes v. City of St. Cloud, 60 Minn. 442; Lyman v. City of Lin- coln, 38 Neb. 794. "A contractor who furnishes labor and material to a city under a contract which re- serves to the city the right of can- cellation, is entitled, after a termin- ation of such contract by the city, to recover from it the actual benefits the city has received from the con- tractor's partial performance; and this is found by ascertaining the reasonable worth to the city of such partial performance, appropriated or received by the city, at the time of such receipt or appropriation and deducting therefrom all payments made to the contractor and all ac- tual damages the city has sustained by his defaults." Schier v. City of Buffalo, 35 Hun (N. Y.) 564. A contractor may re- cover for services rendered where both parties acted in good faith though through an error one of the conditions required by law as neces- sary to the making of a legal con- tract did not exist. North River Elec. Light & Power Co. v. City of New York, 48 App. Div. 14, 62 N. Y. Supp. 726. A con- tract for the supply of a necessary commodity, i. e., street lighting, is enforceable for a reasonable con- sideration though not executed in the manner required by charter pro- vision, designed to insure economy and prevent favoritism and corrup- tion. Sheehan v. City of New York, 37 Misc. 432, 75 N. Y. Supp. 802; City of New York v. Sonneborn, 113 N. Y. 423; Allegheny City v. McClur- kan, 14 Pa. 81; City of Sherman v. Connor, 88 Tex. 35, 29 S. W. 1053; Jewell Nursery Co. v. State, 8 S. D. 531, 67 N. W. 629; McGillivray v. Joint School Dist, 112 Wis. 354, 88 N. W. 310, 58 L. R. A. 100, holds that for obligations incurred in ex- cess of the constitutional limit, al- though the corporation had had the benefit of the contract, it will not be liable even on a quantum meruit. Scott v. School Dist. No. 9 in Wil- liamstown, 67 Vt. 150, 31 Atl. 146, 27 L. R. A. 588. 912 Trustees of Belleview v. Hohn, 295 POWER TO CONTRACT. 659 of public officials to levy and collect special assessments or taxes may give the contractor performing work or supplying materials, the right to a recovery from general corporate funds. 913 This general liability may then include not only the original contract price but such damages as the contractor may have suffered by reason of the failure and neglect to levy and collect the taxes unless there is some express provision in the charter or the con- tract exempting the corporation. 91 * 295. Extras. The furnishing of extra supplies or materials or the doing of work in excess of that called for by the contract leads to many differences. A contractor should not perform extra work or sup- ply extra materials without a clear understanding of his rights for compensation. A public corporation is one of restricted and limited powers, especially in the expenditure of public moneys; the power to contract is not usually an implied one but must ex- pressly be given and must be exercised in the manner designated. 82 Ky. 1; Spaulding v. City of Low- ell, 40 Mass. (23 Pick.) 71; Mathew- son v. City of Grand Rapids, 88 Mich. 558. A contractor failing to complete the work within the time required by the contract cannot re- cover when the delay was caused by the issuance of an injunction on behalf of the adjoining property owners because of an encroachment of the public work upon private property. The court held that the duty to ascertain the right of the city to construct the work in this particular place rested equally upon both parties to the contract. Mau- pin v. Franklin County, 67 Mo. 327; Moore v. City of New York, 73 N. Y. 238; Lillard v. Freestone County, 23 Tex. Civ. App. 363. i3 City of Leavenworth v. Stille, 13 Kan. 539; Heller v. Garden City, 58 Kan. 263, 48 Pac. 841; Kearney v. City of Covington, 58 Ky. (1 Mete.) 339; Cole v. City of Shreveport, 41 La. Ann. 839, 6 So. 688; City of Lansing v. Van Gorder, 24 Mich. 456; Fisher v. City of St. Louis, 44 Mo. 482; Baldwin v. City of Oswe- go, I Abb. Dec. (N. Y.) 62; Beard v. City of Brooklyn, 31 Barb. (N. Y.) 142; Weston v. City of Syracuse, 158 N. Y. 274, 43 L. R. A. 678; Addyston Pipe & Steel Co. v. City of Corry, 197 Pa. 41; McEwan v. City of Spokane, 16 Wash. 212; Stephens v. City of Spokane, 14 Wash. 298 ; Bow- man v. City of Colfax, 17 Wash. 344, 49 Pac. 551; Allen v. City of Janes- ville, 35 Wis. 403. i* Denny v. City of Spokane (C. C. A.) 79 Fed. 719; City of New Orleans v. Kerr, 50 La. Ann. 413. The rule applied to a pound master working under a contract with the city. Ash v. City of Independence, 79 Mo. App. 70; McCann v. City of Albany, 11 App. Div. 378, 42 N. Y. Supp. 94 ; Cumming v. City of Brook- lyn, 11 Paige (N. Y.) 596. 660 POWERS. The law adopts this policy to prevent the dishonest or improp- er use of public moneys. If a contractor were permitted upon his own volition or in an informal manner to perform services or furnish materials not called for by the original terms of his contract thus creating an obligation on the part of the corpora- tion the very purpose and policy of the law would be defeated. At the same time the courts recognize the principle that a public corporation, equally with others, should deal justly and fairly. No rule of general application can be laid down. Each case in- volving the question of "extras," so called, must depend largely upon its own facts. 915 The extra work or materials necessary i Fitzhugh r. Ashworth, 119 Cal. 393; West Chicago Park Com'rs v. Kincade, 64 111. App. 113; City of Laicago v. McKechney, 91 111. App. 442. The compensation allowed for extra work or materials of a differ- ent character from those provided in the contract should be based upon their value. Palladino v. City of New York, 56 Hun, 565, 10 N. Y. Supp. 66; Abells v. City of Syracuse, 7 App. Div. 501, 40 N. Y. Supp. 233. In holding that the contractor could recover for ex- tra work in this case the court said: "In the progress of the work a all became necessary along the side of the street, varying from three to twelve and fifteen feet in height so that in attempting to perform the contract it was discovered that if the top of the embankment was of the width of the street, the toe of the embankment must necessarily extend over the premises of abut- ting owners sufficiently to support the embankment with the earth slope required by the contract. If the fill was fifteen feet deep the toe of the bank would be thirty feet upon the adjoining owner's prop- erty. The adjoining owners refused to permit any portion of the em- bankment upon their premises and forbade it. An emergency, there- fore, suddenly arose which neither of the parties seemed to have con- templated when the contract was made and to persist in the perform- ance of the contract would render all concerned liable as trespassers and the work would probably be stopped. The only way out of the difficulty was, therefore, to construct a vertical wall commencing at the line of the street instead of the sloping embankment which would involve an expenditure not contem- plated by the parties when the con- tract was executed. The city en- gineer with the knowledge and con- sent of the commissioner of public works verbally directed the contrac- tors to construct this wall which was done at an expense of $913. * * * Monthly estimates were made on this contract and the com- missioner of public works certified in writing to the correctness of the claim for the construction of this wall and also in another monthly estimate recognized in writing the propriety of this work. The com- mon council accepted the estimate of October 23, 1893, made by the en- gineer acting for and in the name of the commissioner which embraced $550 for the stone work and ordered 295 POWER TO CONTRACT. 661 may be required because of causes beyond the control of either party to the contract or because of acts done by either the con- tractor or the public corporation, the public corporation chan- ging the contract requirements after its execution and before the completion of the work. For causes beyond the control of both parties unless covered by provisions of the contract, the con- tractor ordinarily assumes all risk. 918 If the "extras" are oc- casioned or consented to by the public corporation, it is liable it paid. This was done; but sub- sequently the common council order- ed the commissioner of public works to make a final estimate o account omitting the said extra work and making a statement that there was finally due the contractors on the contract but $792.36; and the com- mon council also adopted a resolu- tion that the stone wall was built without proper authority and the city was not liable. The city en- gineer was the only witness sworn. He testified that the work was neces- sary in order to carry out the con- tract to build this vertical wall and that it was extra work. * * * The work was not only necessary and proper but it was performed in good faith. No fraud is claimed but it is admitted that the contractors had properly performed the work and that it was worth the amount claimed by the plaintiff. The de- fendant has the benefit of this work and the plaintiff should not be de- prived of the judgment." Follow- ing Brady v. City of New York, 20 N. Y. 312; Weston v. City of Syra- cuse, 82 Hun (N. Y.) 67. Watter- son v. City of Nashville, 106 Tenn. 410, 61 S. W. 782. Extra work not authorized in the manner provided by a city charter cannot be a charge upon the city. i6 Gartner v. City of Detroit, 131 Mich. 21, 90 N. W. 690. In this case the contract merely gave the con- tractor permission to tunnel if he saw fit without in any way agreeing to pay him therefor. On sinking a shaft preliminary to tunneling, quick sand was struck and the plan aban- doned. The contractor then dug a trench but at a cost considerably exceeding the contract price. He sues to recover the cost of the trench as "extra." The court said: "To us the case seems a simple one. We think that it cannot be said that the fact that the job was let with an ex- pectation that it would be tunneled indicates an intention to represent that it could be tunneled. On the contrary the language of the con- tract is a permission to tunnel and the indication that this was so un- derstood is emphasized by the ex- press provision of the contract quot- ed, imposing risks of obstructions upon the contractor. The job was advertised and let upon such terms and while we appreciate the hard- ship of having to perform a contract at a loss we cannot relieve the con- tractor from the obligation of his contract." Citing McBrian v. City of Grand Rapids, 56 Mich. 99. Wheeler v. Van Houten, 12 Johns. (N. Y.) 311; McJimsey v. Traverse, 1 Stew. (Ala.) 244; Burnham v. City of Milwaukee, 100 Wis. 65, 75 N. W. 1014. 662 POWERS. 295 and, 917 on the other hand, if the contractor's acts cause extra work or the use of extra materials, he clearly should stand the loss. 918 Municipal contracts generally provide that no claims for "extras" shall be allowed unless pursuant to the written or- der or direction of a designated official or official body. Such provision is valid and the order or direction is then necessary to a legal claim for compensation on account of extra work or ma- terials furnished by the contractor. 918 si' Zottman v. City & County of San Francisco, 20 Cal. 96; J. M. Griffith Co. v. City of Los Angeles (Cal.) 54 Pac. 383. But the consent should be in the manner authorized by law, in writing and by order of the council, otherwise, there is no liability even on a quantum meruit. Norwalk Gaslight Co. v. Borough of Norwalk, 63 Conn. 495. The consent need not be expressed; it may be implied from acts of the corporation. Hamilton County Com'rs v. Newlin, 132 Ind. 27, 31 N. E. 465; Guthrie v. City of Du- buque, 105 Iowa, 653, 75 N. W. 500; City of Duluth v. McDonnell, 61 Minn. 288. The contrary rule of course is true that where no con- sent is given and extras are paid for without such consent the amount can be subsequently recovered. Steffen v. City of St. 'Louis, 135 Mo. 44, 36 S. W. 31; McCann v. City of Albany, 11 App. Div. 378, 42 N. Y. Supp. 94. The rule is also true where the extra work was made necessary by the mistake of a city official. Gearty v. City of New York, 171 N. Y. 61, 63 N. E. 804, reversing 62 App. Div. 72, 70 N. Y. Supp. 942. sis Hamilton County Com'rs v. Newlin, 132 Ind. 27, 31 N. E. 465. 919 Campbell v. District of Colum- bia, 117 U. S. 615; J. M. Griffith Co. v. City of Los Angeles (Cal.) 54 Pac. 383; O'Hara v. City of New Orleans, 30 La. Ann. 152; Boston Elec. Co. v. City of Cambridge, 163 Mass. 6- 39 N. E. 787. The rule holds when the extra work was beneficial to the corporation and used by it. City of Duluth v. Mc- Donnell, 61 Minn. 288. The court say: "The contract expressly pro- vided that no claim for extra work should be made unless, before the performance, the village council should have first authorized the en- gineer in writing to do such extra work, nor unless, before its per- formance, the price to be paid there- for should have first been agreed upon in writing between the en- gineer and contractor, and approved by the village council and done in obedience to a written order from the engineer, given before the per- formance of the extra work. * * * The provisions of the con- tract referred to are proper and necessary in order to protect the public treasury. The defendant knew they were in the contract when he executed it; and to allow him, in utter disregard of its terms, to retain money paid to him by mis- take would, under the circum- stances, be inequitable against good conscience and against public policy. Any other rule would open wide the door for the perpetration of all sorts of raids and frauds on the public 297 POWER TO CONTRACT. 663 296. Public contracts; actions. It is not usual, in an action against a public corporation on a contract, unless its right to contract in a particular matter is restricted, to show the authority for making the contract and the necessary steps taken pursuant to such authority leading to its formal execution. 920 In controverted cases unless the contrary appears in the contract, a slight variation in the manner of its per- formance will not afford a defense in an action upon it. This principle especially holds where the variation results in an ad- vantage to the corporation. 921 297. Bond required of contractors. It is customary in the making of all contracts by public cor- porations to include as one of the conditions of the contract the requirement that the contractor shall give a bond with sat- isfactory sureties running to the corporation, 922 and conditioned treasury." Leathers v. City of Springfield, 65 Mo. 504; O'Brien v. City of New York, 65 Hun, 112, 19 N. Y. Supp. 793. 920 Goodyear Rubber Co. v. City of Eureka, 135 Cal. 613, 67 Pac. 1043; City of Chicago v. Peck, 196 111. 260; City of Solomon v. Hughes, 24 Kan. 211. 921 Brady v. City of New York, 132 N. Y. 415, 30 N. E. 757; Mulhol- land v. City of New York, 113 N. Y. 631. 922 Stephenson v. Monmouth Min. & Mfg. Co. (C. C. A.) 84 Fed. 114. A creditor of a contractor on a bond given under How. Ann. St. Mich. 8411b having a beneficial interest therein may sue in the name of the city without its consent. In this case the bond, by mistake, ran to the "City of Menominee" instead of to the "State of Michigan" as provid- ed by statute. In holding that this did not vitiate it and that the con- tractor could sue in the name of the city under it the Court said: "The difference resulting from the mis- take in drawing the bond so as to run to a promisee not authorized by the statute is, that if the bond had run to the statutory obligee, the statute itself granted authority for the starting of a suit in the name of the people of the state of Michi- gan for the use and benefit of any- one intended as a beneficiary; while there is no statutory authority by which defendant in error might have used the name of the substituted obligee as plaintiff for its use and benefit. That no one can use the name of another as plaintiff without his consent given in fact or by legal intendment is clear. But when a public municipality charged with the duty of taking and holding the bond required by this statute takes a bond properly conditioned but run- ning to itself, it does by legal in- tendment consent to the use of its corporate name as plaintiff by any- one beneficially interested in the bond thus taken, when indemnified 664 POWERS. 297 upon the proper performance of the work, 023 the furnishing of satisfactory materials, 924 the payment of all debts in connection with the performance of the contract including labor and ma- terials furnished. 925 The purpose of the first two conditions against costs. No express authority of law is needed to authorize t v e use of the name of the city under such circumstances," citing Kiersted v. State, 1 Gill & J. (Md.) 231; and Ing v. State, 8 Md. 287. City of Newton v. Devlin, 134 Mass. 490. 23 Williams v. Markland, 15 Ind. App. 669, 44 N. E. 562; City of Ft. Madison v. Moore, 109 Iowa, 476; Seaboard Nat. Bank v. Woesten, 147 Mo. 467, 48 L. R. A. 279; City of New York v. Reilly, 59 Hun, 501, 13 N. Y. Supp. 521. 924Gosnell v. City of Louisville, 104 Ky. 201, 46 S. W. 722; Zipp v. Fidelity & Deposit Co. of Maryland, 73 App. Div. 20, 76 N. Y. Supp. 386; City of Portland v. Bituminous Pav. & Imp. Co., 33 Or. 307, 52 Pac. 28, 44 L. R. A. 527. Such a condi- tion in a bond is held to be an un- dertaking to maintain the pavement constructed in repair for the desig- nated time and not a mere guarantee of the character and materials. 25 French v. Powell, 135 Cal. 636, 68 Pac. 92; Lane v. State, 14 Ind. App. 573, 43 N. E. 244; School Town of Winamac v. Hess, 151 Ind. 229; McKeon v. Sumner Bldg. & Supply Co., 51 La. Ann. 1961, 26 So. 430; Park v. Sykes, 67 Minn. 153; Peo- ple v. Collins (Mich.) 71 N. W. 153. Construing the term "laborers" and "material men" as used in a con- tractor's bond under How. Ann. St. i 8411a, 8411b and 8411c. Coit v. City of Grand Rapids, 115 Mich. 493; People v. Thompson, 119 Mich. 21, 77 N. W. 314. A person, not requested, who furnished slate black board is a material man and not a sub-contractor. Sepp v. Mc- Cann, 47 Minn. 364; and Salisbury v. Keigher, 47 Minn. 367; holds that Sp. Laws Minn. 1889, c. 360, provides for the payment of laborers employ- ed by subcontractors as well as con- tractors. Freeman v. Berkey, 45 Minn. 438, 48 N. W. 194; Ihk v. City of Duluth, 58 Minn. 182, 59 N. W. 960. The neglect of city officials to take the bond required by the municipal charter does not impose a liability upon the contractor. American Surety Co. of New York v. Waseca County Com'rs, 77 Minn. 92, 79 N. W. 649. Where a bond has been given conditioned that the contractor shall pay all just claims for work and labor performed and materials furnished, payments can- not be withheld from him because he is in default with the laborers and material men. City of St. Louis v. O'Neil Lum- ber Co., 42 Mo. App. 586; Devers v. Howard, 144 Mo. 671, 46 S. W. 625; City of St. Louis v. Von Phul, 133 Mo. 561, overruling Kansas City Sewer Pipe Co. v. Thompson, 120 Mo. 221; Kansas City v. O'Connell, 99 Mo. 357. A covenant in a bond for the payment of laborers does not give a right of action against the sureties by laborers for injuries sus- tained by them while employed by the contractor. City of Springfield v. Weaver, 137 Mo. 650; Lyman v. City of Lincoln, 38 Neb. 794, 57 N. W. 531. The bond g 297 POWER TO CONTRACT. 665 named is to secure the performance of the work in a satisfactory manner; to provide a means by which the corporation may in- demnify itself against any attempt on the part of dishonest con- tractors to furnish materials or perform work not of the char- acter or quality required by their contract, The purpose of the third condition is to insure the payment of all bills by the con- tractor which, if unpaid, would furnish a basis for the filing of liens in favor of laborers or material men. Their prompt payment before the acceptance of work by the corporation insures a free- dom from vexatious litigation as well as the opportunity afford- ed a contractor without paying his bills to collect his compensa- tion from the municipality leaving it the possible obligation of paying again for the materials or services that can be collected under lien laws. 926 A creditor of a contractor may have such a beneficial interest in a bond as to enable him to sue thereon with- out the consent of the city. The right if it exists, usually is given by statute, 927 and it is not a prerequisite, ordinarily, to an action may be required without an express statute or other legal provision. Mansfield v. City of New York, 15 App. Div. 316, 44 N. Y. Supp. 229. buch a condition ordinarily does not cover claims for damages suf- fered from personal injuries. Rhea County v. Sneed, 105 Tenn. 581, 58 S. W. 1063; Town of Grand Isle v. Kinney, 70 Vt. 381; State v. Liebes, 19 Wash. 589; Wallace v. Skagit County, 8 Wash. 457; Elec- tric Appliance Co. v. United States Fidelity & Guaranty Co., 110 Wis. 434, 85 N. W. 648, 53 L. R. A. 609. A failure by the city to require the filing, by the contractor, of receipts In full for labor and materials be- fore the final payment on the work, releases the sureties on the bond. 26 Read v. American Surety Co., 117 Iowa, 10, 90 N. W. 590; White- house v. American Surety Co., 117 Iowa, 328, 90 N. W. 727; Kansas City v. McDonald, 73 Mo. App. 439; Cam- den Iron Works v. City of Camden, 60 N. J. Eq. 211, 47 Atl. 220; Nor- ton v. Sinkhorn, 63 N. J. Eq. 313, 50 Atl. 506; Garrison v. Borio, 61 N. J. Eq. 236, 47 Atl. 1060, construing Gen. St. p. 2078, Act March 30, 1892; McDonald v. Village of Ballston Spa, 34 Misc. 496, 70 N. Y. Supp. 279; Hamilton v. Gambell, 31 Or. 328, 48 Pac. 433; City of Philadelphia v. Wistar, 35 Pa. 427; Herring-Hall- Marvin Co. v. Kroeger, 23 Tex. Civ. App. 672, 57 S. W. 980. 927 State v. McCray, 5 Ind. App. 350, 32 N. E. 341; Callahan v. City of Boston, 175 Mass. 201, constru- ing statutes of 1892, c. 270, relative to debts due for labor performed in constructing public works. Devers v. Howard, 144 Mo. 671, 46 S. W. 625; Doll v. Grume, 41 Neb. 655, 59 N. W. 806. Only the author- ized laborer and materialmen may sue on the condition in a contract- or's bond to the city that he shall pay for all labor and materials furnished in executing the contract. 666 POWERS. 297 on a contractor's bond conditioned for the payment of claims for labor and material, that the payment of such claims should have been demanded. 928 Baum v. Whatcom County, 19 Wash. 626. Under 1 Hill's Code, 2415, a bond conditioned to pay all laborers, material men, etc., may be enforced by a material man. The following cases hold that such right does not exist. Columbia Brick Co. v. District of Columbia, 1 App. D. C. 351. Material men not parties to a contract cannot enforce provisions relative to payment. Kansas City Sewer Pipe Co. v. Thompson, 120 Mo. 218, 25 S. W. 522. A materialman has no right of action on a bond containing such condition. Buffalo Cement Co. v. McNaughton, 156 N. Y. 702. Such a bond is intended solely for the benefit of the city and persons furnishing material cannot sue thereon. Electric Appliance Co. v. United States Fidelity & Guaranty Co., 110 Wis. 434, 85 N. W. 648, 53 L. R. A. 609. Usually, the bond is for the benefit of the city alone; a creditor having a claim for labor or material capable of collection through the filing of a lien does not have the right to sue on the bond given by the contractor. 28 Lane v. State, 14 Ind. App. 573, 43 N. E. 244. "It is next in- sisted that the conclusions of law are erroneous because there is no finding that a demand was made before the suit was brought. The finding, however, does show that the road had been completed and that the contractors had recovered the full amount of the contract price and that the claims- for labor, ma- terials and board were due, and that the contractors had failed to pay the same and that certificates of in- debtedness had been issued by the contractors for nearly all the claims and orders drawn upon third par- ties for the same which orders had been paid by the holders to the laborers anu material men long be- fore the commencement of the ac- tion. The superintendent was a public officer and it was a part of his official duty to enforce the bond for the benefit of the laborers and material men. When he learned that such claims had not been paid after the completion of the road, and full settlement had been made with the contractors, it was his duty to enforce the bond. The appel- lants contracted with the state with the understanding that they would be liable for such claims and it was their duty to see that such claims were paid and when they failed to do so there was a breach of the bond. The suit here is brought by the person designated by the law, in the first instance and perhaps the only one who can maintain the action. It is true that, * * * when the suit is brought by the laborer or material man on his own relation, a demand must be first made of the contractor. There the suit is brought by a person not a direct party to the bond. Here the suit is brought by the person desig- nated by the law and one whom the appellants knew when they executed the bond, would be entitled to en- force it; while in the other case the laborers are unknown at the 298 POWER TO CONTRACT. 667 298. Rights of sureties. Sureties on a contractor's bond given for either the faithful performance of the work or the payment of material men and laborers are not liable to third parties indirectly furnishing ma- terials in performing the contract. 929 If the contractor fails to complete the work or abandons his contract, the sureties on the bond given by him may have the right to assume and perform the contract according to its terms and conditions; they then stand in the place of and are substituted for the original con- tractor entitled to his rights and subject to his obligations. 930 time the bond is executed. The suit was a sufficient demand in this case." 29 See cases cited 297. City of Sterling v. Wolf, 163 111. 467. "The rule has been re-announced by this court in almost numberless cases, that the undertaking of a surety is strictly construed and may not be extended by implication or con- struction; that he cannot be held beyond the express terms of his un- dertaking. The liability is strictissi- mi juris. In case of doubt, the doubt is generally resolved in his favor. To hold that it was intended by the parties that the sureties for Real (the contractor) were to become re- sponsible to third parties for all the material, labor and tools em- ployed and used by him in the per- formance of his contract with the city would be to hold the sureties liable, not only beyond the letter of their contract, but make them liable by a most liberal and, we think, un- justifiable construction of their con- tract." 3o Jones v. City of New York, 60 App. Div. 161, 70 N. Y. Supp. 46. The court here say: "The only question then remaining, is whether the offer by the board of education to the contractors that they might go on and complete the work, with a concession that the time that had elapsed between the 2nd of June, when the notice was given, and the 27th of June, when it was with- drawn, should not be counted as a part of the three hundred days, op- erated as a waiver of the forfeiture that had already occurred. If that offer had been accepted by the plaintiffs there can be no doubt that the contract would have been re- stored; but they refused peremptor- ily to take advantage of it, and, having done that, they are not now at liberty to say that the contract is not at an end. It is claimed, however, that the sureties having offered to complete the contract, the forfeiture as to them, was waived. But they never did offer. All that was done in that behalf was done by Mr. Winter who said that he went to the board of education and asked permission that one Hay, the in- demnitor of the sureties, should be allowed to continue the work. He says expressly that he represented Mr. Hay and never had anything to do with the surety company, nor did he represent it. The contract was at an end. The surety company were no longer at liberty to do any work upon it. There was no obli- 668 POWERS. 299 In case of the assignment of the contract with the consent of all parties including the sureties, their relative obligations are not changed. 931 299. Subcontractors. The statutes providing for the filing of liens by laborers or material men for labor performed or materials furnished do not ordinarily apply to subcontractors. The payment of a claim for either laborer or material may depend, therefore, upon the bring- ing of the person performing the labor or supplying the materi- als within either class, holding him as a subcontractor will defeat his right of securing the statutory lien ; conversely the reverse is true. No general rule applicable to the construction of such statutes can be given the decisions of the different states must be consulted. The statute giving the lien may benefit the laborers of material men and subcontractors as well as contractors. So held by all the Minnesota cases cited. gation on the part of the city or the board of education to make a new arrangement with them unless they saw fit." sal French v. Powell, 135 Cal. 636, 68 Pac. 92; Anderson v. City of De- troit (Mich.) 83 N. W. 145; Peo- ple v. Powers, 108 Mich. 339; Peo- ple v. Cotteral, 119 Mich. 27; Combs v. Jackson, 69 Minn. 336, 72 N. W. 565. "There is no evidence that plaintiff's assignors, when they per- formed labor in quarrying and crushing the rock, had particularly in mind any contract between their employer, Anderson, and Canney Brothers, or that they performed the labor for the specific or particular purpose of aiding in the execution of that contract or in reliance upon it as security for the payment of their labor, or that they, at that time, knew where or for what pur- pose the rock was to be used. It is claimed upon this state of facts, that although Anderson may have gotten out and furnished this ma- terial as sub-contractor, in the exe- cution of the contract between Jack- son and the City, and the material was so used, yet plaintiff's assign- ors had no right of action on the bond because they did not perform the labor 'particularly for such con- tract.' * * * If Anderson, as sub-contractor, got out and furnish- ed this rock for this paving con- tract, and it was actually used therefor, then those who performed labor for him in preparing the ma- terial may maintain an action on the bond although while doing the work, they may not have had in mind the purpose of aiding in the execution of the contract between Jackson and the city. Any other construction, would, in a great meas- ure, defeat the manifest purpose of the statute, and deprive of its bene- fits a large class of persons who stand most in need of its protec- tion." Kansas City v. McDonald, 80 Mo. App. 444; Gilmore v. Wester- man, 13 Wash. 390; James v. David- son, 81 Wis. 321, 51 N. W. 565. CHAPTER VI. PUBLIC REVENUES; THEIR COLLECTION AND DISBURSEMENT. I. TAXATION. II. SPECIAL ASSESSMENTS. (For complete analysis of this subdivision see page 773.) III. LICENSE FEES AND POLL TAXES. (For complete analysis of this subdivision see Vol. II.) IV. THE DISBURSEMENT OF PUBLIC REVENUES. (For complete analysis of this subdivision see Vol. II.) I. TAXATION. i 300. Definition and nature. 301. Municipal power to tax. 302. The authority. 303. Limitations upon the power. 304. Purpose of taxation. 305. The payment of debts. 306. Taxation for the support of public schools. 307. School taxes; amount required. 308. Diversion of funds. 309. The construction of roads. 310. The levy of taxes for the establishment or maintenance of plants for the supply of water and light. 311. The exercise of the power. 312. The authority to tax and upon what based. 313. Exemptions. 314. Taxes; their levy and assessment. 315. Basis or authority for tax levy. 316. Agency of tax levy. 317. Apportionment of taxes. 318. Tax levies; preliminary proceedings. 319. Mode of levy and assessment. 320. Loss of power. 321. Errors in proceedings. 322. The power; when exercised. 670 PUBLIC REVENUES. 200 323. The duty obligatory. 324. Equalization of tax levies. 325. Taxpayers' rights. 326. Lien and priority. 327. Collection of taxes. 328. Actions; questions raised. 329. Use of proper remedy by taxpayers to prevent collection of illegal taxes. 330. Compromise of taxes. 331. Right to prescribe and collect penalties. 332. Irregularities. 333. Enforcement of lien. 334. Summary proceedings. 335. The payment of taxes. 336. Their refunding. 300. Definition and nature. The power of taxation is one of the inherent attributes of sovereignty. It is that power, political and governmental in its nature, which can compel, if necessary, a contribution for the support of the government from those under its jurisdiction. Theoretically, it has no limit. It is that power most necessary to the existence and maintenance of government and the exercise of the various functions which are universally recognized as proper. It is through the existence of this power that its or- dinary expenses are paid, and, in addition, it is enabled to main- tain the various beneficent agencies having for their purpose the safety, advancement and the advantage of society. Under some theories, the individual is supposed, in return for a sur- render to government of the right to tax his person and prop- erty, to receive the obligation of that government to protect him in the proper use and enjoyment of his property and to guard his personal rights, but ordinarily the power of taxation is a governmental and political necessity and there is no legal obli- gation to render a return. 1 i Rolph v. City of Fargo, 7 N. D. support between the state and those 640, 76 N. W. 242, 42 L. R. A. 646; who are subject to its authority, and Trustees of Public Schools v. Taylor, the exclusive sovereignty and juris- 30 N. J. Eq. (3 Stew.) 618. Cooley, diction of the state over all persons Taxation, p. 2, "The justification of and property within its limits for the demand is therefore found in the governmental purposes. The person reciprocal duties of protection and upon whom the demand is made, or 300 TAXATION. 671 The power of taxation is different in its nature from those other great governmental powers, namely, the police power, the power of eminent domain and the war power. The police power is purely regulative and its exercise designed to restrict the in- dividual in the use of his physical powers and in the use and en- joyment of his property enforcing the maxim sic utere tuo ut alienum non loedas. Government recognizes the individual only as a member of society with obligations and duties to that so- ciety of which he is a member. 2 The power of eminent domain is that inherent right possessed by the sovereign to appropriate private property for public use with the organic limitation in this land, "only upon the payment of just compensation," which must be "full, ample and com- plete" before the power can be exercised. There can be no tak- ing under the power of eminent domain without the rendition of a pecuniary equivalent. 3 whose property is taken, owes to the state a duty to do what shall be his just proportion towards the support of government, and the state is sup- posed to make adequate and full compensation, in the protection which it gives to his life, liberty and property, and in the increase to the value of his possessions, by the use to which the money contributed Is applied. * * * The power of taxation is an incident of sover- eignty, and is possessed by the gov- ernment without being expressly conferred by the people, * * * and not only is the power unlimited In its reach as to subjects, but in its very nature it acknowledges no lim- its, and may be carried even to the extent of exhaustion and destruction thus becoming in its exercise a pow- er to destroy. If the power be threatened with abuse, security must be found in the responsibility of the legislature that imposes the tax to the constituency which must pay it." 2 Hanson v. Vernon, 27 Iowa, 28, 1 Am. Rep. 215, with cases there cited defining taxes. See, also, Peo- ple v. McCreery, 34 Cal. 432; Stock- ton & V. R. Co. v. City of Stockton, 41 Cal. 149; People v. Austin, 47 Cal. 360; Warren v. Henly, 31 Iowa, 31; Allen v. Inhabitants of Jay, 60 Me. 124; Weismer v. Village of Douglas, 64 N. Y. 91; Hilbish v. Catherman, 64 Pa. 154. s Alexander v. City of Alexandria, 5 Cranch (U. S.) 1; Gilman v. City of Sheboygan, 2 Black (U. S.) 510. The exercise of the power of taxa- tion is not liable to the objection that private property is taken for public purposes without compensa- tion. Such provisions operate as a limitation only on the right of emi- nent domain. It does not affect the taxing power. Chambers v. Satter- lee, 40 Cal. 497; Nichols v. City of Bridgeport, 23 Conn. 189; Brittin v. Blake, 36 N. J. Law, 442; Matter of Dorrance St., 4 R. I. 230; Lewis, Em. Dom. 072 PUBLIC REVENUES. 300 The war power, like the power of taxation, is a governmental and political necessity, but properly used only for the mainte- nance or protection of national life or honor. The power of tax- ation being a governmental and political one, in the abstract sense is without limitation and can be exercised without restric- tion. In this country, however, there are well established and clearly defined limitations upon the right of the sovereign to levy taxes. These limitations and restrictions are to be found in the constitution of the United States and those of the different states and exist as well in what might be termed for want of a better phrase the fundamental principles of law and equity. The subject of taxation both in its constitutional and administrative aspects has been well considered by the authorities cited in the notes, 4 and a general discussion will not be here given except as delegated or granted subordinate governmental agents, and this in the briefest way. The power of the sovereign to delegate to subordinate bodies or agencies its powers of taxation is unques- tioned though such grant usually conveys no unlimited or irrevo- cable rights. 5 The limitations upon the power usually applied by courts have for their purpose the imposition of taxes in a uni- 4 Sedgwick, St. Const. Law; Hare, Huck r. Chicago & A. R. Co., 86 Am. Const. Law; Cooley, Const. III. 352; Lucas v. Tippecanoe County Lim.; Desty, Taxation; Burroughs, Com'rs, 44 Ind. 524; Bradley v. Mc- Taxation; Cooley, Taxation. Atee, 70 Ky. (7 Bush) 667; City of 6 Citizens' Sav. & Loan Ass'n v. New Orleans v. Turpin, 13 La. Ann. City of Topeka, 87 U. S. (20 Wall.) 56; Bracey v. Ray, 26 La. Ann. 710; 655; Stein v. City of Mobile, 24 Ala. State v. Linn County Ct., 44 Mo. 591; Baldwin v. City Council of 504; State v. Owsley, 122 Mo. 68; Montgomery, 53 Ala. 437; Vance v. State v. Board of Education of St. City of Little Rock, 30 Ark. 435; Louis, 141 Mo. 45; State v. Mason, State v. Union Cent. Life Ins. Co. 153 Mo. 23; In re Zborowski, 68 N. (Idaho) 67 Pac. 647; People v. City Y. 88; Wingate v. Sluder, 51 N. C. of Chicago, 51 111. 17; Livingston (6 Jones) 552; Appeal of Durach, 62 County Sup'rs v. Welder, 64 111. 427. Pa. 491; Appeal of Butler, 73 Pa. "Corporate purposes must be for 4*8; East Tennessee University v. such purposes and such only as are City of Knoxville, 65 Tenn. (6 Baxt.) germane to the objects of the crea- ibo; Waterhouse v. Cleveland Public tion of the municipality, at least, Schools, 55 Tenn. (8 Heisk.) 857; such as have a limited connection Perry v. City of Rockdale, 62 Tex. with those objects and manifest re- 451; Bates v. Bassett, 60 Vt. 530, lation thereto." 1 L. R. A. 166; Peters v. City of Lynchburg, 76 Va. 927. 300 TAXATION. form, orderly and impartial way, both as to the subjects and methods of taxation and the enforcement of the power. 6 It is not e City of Mobile v. Dargan, 45 Ala. He receives no benefit in fact. A 310; Sangamon County v. City of multimillionaire may be compelled Springfield, 63 111. 66. A constitu- to pay an enormous school tax, al- tional provision requiring uniform though he has no child to be edu- taxation in respect to persons and" cated and he may be required to property is not contravened by a bear the weight of heavy taxes for statute providing for a division and other purposes although he should apportionment of taxes between a happen to be practically denied the county and city although this ap- protection of the laws by reason of portionment discriminates against the envy and hatred of which he the county. may be the object because of his Adams v. Mississippi State Bank, great wealth. The taxing power 75 Miss. 701, 23 So. 395. A consti- rests upon necessity and not senti- tution providing that taxation shall ment. If organized society were to be uniform and equal governs the wau for the means to support civil imposition of taxes by all grades government until an ideally just sys- and classes of subordinate public tern Oi taxation could be devised and corporations. Carolina Cent. R. Co. put into successful operation, it must v. City of Wilmington, 72 N. C. 73. wait like the rustic who tarried by A constitutional requirement for tax- the river's bank for the stream to ation "by uniform rule" is violated pass by. What is It that so differ- by a charter clause providing for entiates the power of local assess- assessment by the mayor and alder- mem from the power of general tax- men, ation that in one case the sovereign London v. City of Wilmington, 78 must give back in value all that is N. C. 109; Rolph v. City of Fargo, 7 taken while in the other it can if N. D. 640, 76 N. W. 242; 42 L. R. A. necessary (unless there be constitu- 646. The constitution of North Da- tional checks) take from the citizen kota, 176, providing that laws shall all his property without reference to be passed taxing by uniform rule his receiving in return any corn- all property according to its true mensurate advantage or any benefit value applies to general taxation at all? Until this question is an- only, not to "local assessments." swered in favor of such a distinc- The court say in part: "While in tion, it is idle to talk of the en- general theory the citizen receives hanced value of the land assessed as a benefit equivalent to the tax he is the limit of the power of local assess- called upon to pay, yet it is com- ment. When such an assessment is -non knowledge that this is a mere levied upon property for a particu- fiction which is in conflict with the lar improvement, a tax is as much truth; and of course it is elementary collected as when the expense of the law that the doctrine of benefit does work is charged to the general tax not lie at the foundation of the levy. The only distinction is that taxing power and that the citizen the district is narrower and the mode cannot escape a tax by showing that of apportionment different. Usually, Abb. Corp. 42. 674 f'LBLIC REVENUES. 300 a discretion a t p Bovver when once granted and its exercise for legitimate purposes can be compelled by those who would suffer from a failure or neglect to tax. 7 It is a continuing power, the exercise or nonuse of which does not defeat the right to tax whenever necessary, subject to legal limitations. 8 When granted too, only real property is considered in making the apportionment, and not all property, real or personal. In all other respects the two classes of cases are identical. The same power of taxation is exercised in each instance, and, except with re- spect to constitutional restrictions or inherent limitations, the legislative discretion is, in both classes of cases, absolute. We have already re- ferred to those limitations which in- here in the very nature of the tax- ing power. None of them affect the question before us. The assessment is for a public purpose. It pertains to the district within which it is to be collected, and it is apportioned ac- cording to a uniform rule. When we turn to the constitution for light we find there no provision which re- lates to local assessments except the one which directs the legislature to restrict the power to make such as- sessments when exercised by mu- nicipal corporations. The over- whelming mass of authority sup- ports the view that the proper con- struction of the uniformity article in our constitution is that it relates exclusively to general taxation, and has no reference to local assess- ments." Citing among other cases, Emery v. San Francisco Gas Co., 28 Cal. 345; Edgerton v. Town of Green Cove Springs, 19 Fla. 140; Hayden y. City of Atlanta, 70 Ga. 817; Good- rich v. Winchester & D. Turnpike Co., 26 Ind. 119; Hines v. City of Leavenworth, 3 Kan. 186; Wallace v Shelton, 14 La. Ann. 498; Dorgan v.City of Boston, 94 Mass. (12 Allen) 223; Motz v. City of Detroit, 18 Mich. 495; Williams v. Cammack, 27 Miss. 209; Egyptian Levee Co. v. Hardin, 27 Mo. 495; Cain v. Davie County Com'rs, 86 N. C. 8; Hill v. Higdon, 5 Ohio St. 243; King v. City of Port- land, 2 Or. 140; Hansen v. Hammer, 15 Wash. 315, 46 Pac. 332; and Rich- mond & A. R. Co. v. City of Lynch- burg, 81 Va. 473. Com. v. Halstead (Pa.) 7 Atl. 221; Germania Sav. Bank v. Town of Darlington, 50 S. C. 337. Constru- ing act of 1884 (18 Stat. p. 923), and holding it repugnant to consti- tution, art. 9, 1, providing for uni- form and equal rate of assessment. f Meriwether v. Muhlenburg Coun- ty Ct., 120 U. S. 354, 7 Sup. Ct. 563; Mayfield Woolen Mills v. City of Mayfield, 111 Ky. 172, 61 S. W. 43; People v. Common Council of East Saginaw, 33 Mich. 164. Under a proper delegation of power, the de- termination by the common council of a city of what taxes should be levied for city purposes will not, or- dinarily, be interfered with by the courts. State v. City of Great Falls, 19 Mont. 518, 49 Pac. 15; Hall v. Selectmen of Somersworth, 39 N. H. 511; State v. City of Cincinnati, 19 Ohio, 178. 8 Wells v. City of Savannah, 107 Ga. 1, 32 S. E. 669. "Plain- tiffs in error contend that the contract (of exemption) they in- sist upon is evidenced sufficiently 300 TAXATION. by the sovereign to a subordinate agent, a public quasi or mu- nicipal corporation, it becoming then a delegated power, the rule universally holds that the exercise of the power cannot in turn be delegated to some officer or inferior body. 9 The power to be by the conduct of the municipal officers at the time that the sales by the city took place. It was shown that when lots were put up for sale, the city marshal publicly announced that they would not be subject to city taxes; that this was generally understood by the city at large; and that for nearly a hundred years after these sales first began the municipal authorities failed to tax the lands, and in various or- dinances afterwards passed, these ground-rent lands were exempted. The effect of these ordinances was merely to grant an exemption from taxes for the particular years to which they related. Mere non-user by a government of its power to levy a tax, it matters not for how long continued, can never be construed into a forfeiture of the power." City of Lake Charles v. Police Jury Of Calcasieu, 50 La. Ann. 346, 23 So. 376; Mills v. Charleton, 29 Wis. 400. In this case speaking of the taxing power the court said: "It moves constantly forward to its object until that is accomplished, and if turned aside by any obstacles or impediments, may return again and again to the . ame tax or assess- ment until, the way being clear, the tax is paid or the assessment col- lected. Such is the force of this power, or of the sovereign body which exercises it, that it may re- move all obstacles and never cease to act until it has attained the ap- pointed end for which it was dele- gated." Johnston v. City of Macon, 62 Ga. 645; State v. City of Des Moines, 103 Iowa, 76, 72 N. W. 639, 39 L. R. A. 285; Harward v. St. Clair-M. Levee & Drainage Co., 51 111. 130. "The power of taxation is, of all the powers of government, the one most liable to abuse, even when exercised by the direct representatives of the people; and if committed to persons who may exercise it over others without reference to their consent, the certainty of its abuse would be simply a question of time; no per- son or class of persons can be safe- ly entrusted with irresponsible pow- er over the property of others, and such a power is essentially despotic in its nature, and violative of all just principles of government. It mat- ters not that as in the present in- stance, it is to be professedly ex- ercised for public uses by expending for the public benefit the tax col- lected. If it be a tax as in the present instance, to which the per- sons who are to pay it have never given their consent, and imposed by persons acting under no responsi- bility of official position, and cloth- ed with no authority of any kind, by those whom they propose to tax, it is, to the extent of such tax, misgov- ernment of the same character which our forefathers thought just cause of revolution. We are of opinion that we do no violence to the lan- guage of the clause in the constitu- tion we have been considering by holding that it was designed to pre- vent such ill advised legislation as the delegation of the taxing power to any person or persons other than. 676 PUBLIC REVENUES. 300 legally exercised must be expressly granted and further, 10 it is one of a limited and restricted nature. Provisions granting it the 'corporate authorities' of the mu- nicipality or district to be taxed. These authorities are elected by the people to be taxed or appointed in some mode to which the people have given their assent, and to them alone can this power be safely delegated." Councilmen of Frankfort v. De- posit Bank, 22 Ky. L. R. 1384, 60 S. W. 19. The power to tax cannot be lost through an agreement to abide by the result of another suit. State v. McVea, 26 La. Ann. 151. The power exists in the legislature to delegate to subordinate munici- pal corporations the power to levy taxes for local uses. Bergen v. Clarkson, 6 N. J. Law ^1 Halst.) 352; Hance v. Sickles, 24 N. J. Law (4 Zab.) 125; Durach's Ap- peal, 62 Pa. 491. A constitutional right exists in the legislature to delegate the power of taxation to municipal corporations to be exer- cised within their jurisdiction. Waterhouse v. Cleveland Public School Board, 68 Tenn. (9 Baxt.) 398. The delegation of the power to tax must come, however, within the provision of the constitution. Cooley, Taxation, p. 61. "It is a general rule of constitutional law that a sovereign power conferred by the people upon any one branch or department of the government is not to be delegated by that branch or department to any other. This is a principle which pervades our whole political system, and, when properly understood, admits of no exception. And it is applicable with peculiar force to the case of taxation. The power to tax is a legislative power. The people have created a legislative department for the exercise of the legislative power; and within that power lies the authority to prescribe the rules of taxation, and to regu- late the manner in which those rules shall be given effect. The people have not authorized this department to relieve itself of the responsibility by a substitution of other agencies. But it is nevSr assumed by the peo- ple that the legislature can take such supervision of all the infinite variety of interests in the state, and of all local as well as general affairs, as to be able to determine in every instance precisely what is needed in matters of taxation, and precisely what purposes shall at any time, un- der the particular circumstances, be provided for. There is a differ- ence between making the law and giving effect to the law; the one is legislation and the other adminis- tration." 10 United States v. Town of Cicero, 41 Fed. 83. The power given to con- struct public buildings and provide for the payment of the same it waa held in this case did not necessarily carry with it an implied power to levy taxes sufficient to meet the obli- gations when due. United States v. City of Burling- ton, 2 Am. Law Reg. (N. S.) 394; Vance v. City of Little Rock, 30 Ark. 435; Livingston v. City Council of Albany, 41 Ga. 21; Clark v. City of Davenport, 14 Iowa, 494; Daily v. Swope, 47 Miss. 367. Subordinate public corporations possess an in- herent power of taxation. People v. Ingersoll, 58 N. Y. 1. The power when granted is not exercised by the corporation as agent of the state. 301 TAXATION. 677 cannot be extended or enlarged by implication beyond the clear import of the language used in the granting clause. 11 301. Municipal power to tax The use of the word "municipal" in the title of this section is intended to include not only municipal corporations proper, but all those public quasi corporations organized subsidiary to the sovereign. The term here is a comprehensive one and includes all subordinate grades of public corporations. The granted power in its nature and extent generally speaking is limited only by the In re Second Ave. M. E. Church,' 66 N. Y. 395. Municipal corporations have no inherent power to levy tax- es. Commissioners of Asheville v. Means, 29 N. C. (7 Ired.) 406; Pul- len v. Wake County Com'rs, 66 N. C. 361; Walker v. Edmonds, 197 Pa. 645, 47 Atl. 867; State v. Town of Maysville, 12 S. C. 76. 11 Baldwin v. City Council of Montgomery, 53 Ala. 437; Metropoli- tan Life Ins. Co. v. Darenkamp, 23 Ky. L. R. 2249, 66 S. W. 1125. Acts or ordinances levying taxes should be construed most strictly in favor of the taxpayer and against the gov- ernment. City of Baltimore v. State, 15 Md. 376; Howell v. Village of Cassopolis, 35 Mich. 471. The grant of a power to tax should be construed in sub- ordination to the general tax laws of the state unless the intent to create an exception is clearly expressed. Smith v. City of Vicksburg, 54 Miss. 615; City of St. Louis v. Laugh- lin, 49 Mo. 559; Directors of Alfalfa Irr. Dist. v. Collins, 46 Neb. 411; Dean v. Charlton, 27 Wis. 522. A statute authorizing a municipal cor- poration to reassess and relevy spe- cial taxes void because of irregulari- ties in the original proceedings must be strictly construed. The court say: "In the consideration of these statutes, it becomes important to settle the rule by which they are to be construed. It must be remem- bered that they are in derogation of the rights of the citizen who may be affected by them, in that they compel him to bear burdens which had been unlawfully imposed, or at- tempted to be imposed upon him and which he would not be com- pelled to bear but for those laws. It is probably too late to question the power of the legislature to pass retroactive statutes of this charac- ter; but to do so is a very great stretch of legislative power, frequent- ly of doubtful expediency, the ex- ercise of which is liable to do great injustice to individuals. It seems obvious that such statutes should be strictly construed. A due regard for individual rights and the plainest principles of justice, requires that they should have only the effect which the legislature clearly intend- ed that they should have; and that in construing them, all reasonable doubts as to such intent should be resolved in favor of the citizen." Foster v. City of Kenosha, 12 Wis. 616. 678 PUBLIC REVENUES. 302 authority conferring its exercise. The municipality where the general power is granted can tax all subjects within its jurisdic- tion not exempt by the laws of the state and subject only to the constitutional -limitations upon the exercise of the power. 12 In construing the power as granted, it is considered a continuing one and as operating prospectively, never retrospectively. 13 The right cannot be granted by a state or the courts to tax when the state itself does not possess either the original power to tax in the manner attempted, to be granted or the right itself. 14 302. The authority. The authority or power to tax being a governmental power i- Vincent v. Hinsdale County Com'rs, 12 Colo. App. 40; Pratt v. City of Jacksonville, 36 Fla. 550. The delegation to a municipality of the power to fix the rate and pro- vide regulations for the valuation of property does not comply with constitution of Florida art. 9, 1, which declares that the legislature "shall provide for a uniform and equal rate of taxation and shall pre- scribe such regulations as shall se- cure a just valuation of all proper- ty." City of Macon v. Central R. & Banking Co., 50 Ga. 620; Spann v. Webster County Com'rs, 64 Ga. 498. It the constitution provides for the assent of voters, a tax levied with- out this is invalid. Com. v. Milton, 51 Ky. (12 B. Mon.) 212; Wingate v. Sluder, 51 N. C. (6 Jones) 552; McCless v. Meekins, 117 N. C. 34; State v. Haywood County Com'rs, 122 N. C. 661; Smathers v. Madison County Com'rs, 125 N. C. 480; State v. Irvin, 126 N. C. 989. The cases of City of Columbia v. Beasly, 20 Tenn. (1 Humph.) 232, 34 Am. Dec. 646, and Hope v. Deaderick, 27 Tenn. (8 Humph.) 1, 47 Am. Dec. 597, sustain the general proposi- tion that although the authority may be granted it must be exercised in accordance with constitutional pro- visions. Presidio County v. City Nat. Bank, 20 Tex. Civ. App. 511; Gilkeson v. Frederick County, 13 Grat. (Va.) 577. is Wayne v. City of Savannah, 56 Ga. 448. The rule also operates in favor of the municipality. Property holders who have paid illegal taxes either voluntarily or under coercion in former years have no right to set off such payment against present taxes. Ohio & M. R. Co. v. People, 123 111. 648, 15 N. E. 276. Third Municipality v. Ursuline Nuns, 2 La. Ann. 611; Municipality No. 3 v. Michoud, 6 La. Ann. 605. i* Henderson Bridge Co. v. City of Henderson, 173 U. S. 592; Vance v. City of Little Rock, 30 Ark. 435. Courts of the United States can im- part no taxing power to a municipal corporation. Kyle v. Malin, 8 Ind. 34; O'Donnell v. Bailey, 24 Miss. 386; Bank of Chester v. Town Coun- cil of Chester, 10 Rich. Law (S. C.) 104; City of Nashville v. Thomas, 45 Tenn. (5 Cold.) 600. 302 TAXATION. 679 possessed only in the fullest extent by t.V? twvereign, to be exer- cised by a subordinate agent, must be e^piessly given. A mu- nicipal corporation in its broad sense ha& no power to levy taxet or impose license fees, a species of taxation, when not expressly authorized so to do either by its charter or by some general pro- vision of the law. 15 Where the authority to lax does not exist, no court has power to issue process compelling its exercise. 1 ' Ordinarily, the legislative branch of government has the exclu- sive power of taxation and its delegation or repeal must proceed from this branch. 17 The legislature in delegating it should pro- vide for its exercise in an equal and uniform manner. 18 Th is Sanders v. Commissioners of Butler, 30 Ga. 679; City of Inde- pendence v. Moore, 32 Mo. 392. IB Vance v. City of Little Rock, 30 Ark. 435; United States v. City of Burlington, 2 Am. Law Reg. (N. S.) 394. IT North Missouri R. Co. v. Ma- guire, 87 U. S. (20 Wall.) 46; Meri- wether v. Garrett, 102 U. S. 472; Hagar v. Yolo County Sup'rs, 47 Cal. 222; Coite v. Society for Sav- ings, 32 Conn. 173; Extension of Hancock St., 18 Pa. 26; Bank of Pennsylvania v. Com., 19 Pa. 144; Catlin v. Hull, 21 Vt. 152. City of Richmond v. Richmond & D. R. Co., 21 Grat. (Va.) 604. The power of taxation as conferred upon a municipal corporation is merely a delegated trust. It is not a con- tract between the state and such subordinate agency to be considered as conferring upon the latter an ab- solute power of taxation beyond the control of the legislature. The grant is, at all times, subject to re- peal or modification by the sover- eign. is United States v. City of New Orleans, 98 U. S. 381. "The posi- tion that the power of taxation be- longs exclusively to the legislative branch of the government no on* will controvert. Under our system it is lodged nowhere else. But it i a power that may be delegated by the legislature to municipal corpora- tions, which are merely instrumen- talities of the state for the better administration of the government in. matters of local concern. When such a corporation is created, the power of taxation is vested in it as an essential attribute, for all the purposes of its existence, unless It* exercise be in express terms pro- hibited. For the accomplishment of those purposes, its authorities, how- ever limited the corporation, mus*. have the power to raise money an^ control its expenditure. In a city even of small extent, they have to provide for the preservation of peace good order and health, and the exe- cution of such measures as conduce to the general good of its citizens; such as the opening and repairing of streets, the construction of side- walks, sewers and drains, the intro- duction of water, and the establish- ment of a fire and police department. In a city like New Orleans, situated on a navigable stream, or on a har- bor of a lake or sea, their powers are usually enlarged so as to em- 680 PUBLIC REVENUES. 302 power of taxation in a municipal corporation, as a rule, is not general in its nature. Municipal corporations or subordinate cor- porations are local agencies of the government within a definite locality. The municipal power to tax, therefore, is restricted to community or local purposes. 19 General taxes cannot be levied brace the building of wharves and docks or levees for the benefit of commerce, and they may extend also to the construction of roads leading to it or the contributing of aid to- wards their construction. The num- ber and variety of works which may be authorized, having a general regard to the welfare of the city or of its people, are mere matters of legislative discretion. All of them require for their execution consider- able expenditures of money. Their authorization without providing the means for such expenditures would be an idle and futile proceeding. Their authorization, therefore, im- plies and carries with it the power to adopt the ordinary means em- ployed by such bodies to raise funds for their execution, unless such funds are otherwise provided. And the ordinary means in such cases is taxation. A municipality without the power of taxation would be a body without life, incapable of act- ing and serving no useful purpose." City of Mobile v. Dargan, 45 Ala. 310; Security Sav. Bank & Trust Co. r. Hinton, 97 Cal. 214, 32 Pac. 3. A city, the organization of which is authorized by the legislature, may provide in its charter for local taxa- tion. The court holding this power essential to municipal existence. Wells v. City of Savannah, 107 Ga. 1; Sherlock v. Village of Winnetka, 68 111. 530; Harney v. Indianapolis, C. & D. R. Co., 32 Ind. 244; Clark v. City of Davenport, 14 Iowa, 494; Byrne v. City of Covington, 15 Ky. L. R. 33, 21 S. W. 1050; City of Alexandria v. White, 46 La. Ann. 449, 15 So. 15; Chicago, St. L. & N. O. R. Co. v. Town of Kentwood, 49 La. Ann. 931; Daily v. Swope, 47 Miss. 367; City of York v. C., B. & Q. R. Co., 76 N. W. 1065. Chicago, B. & Q. R. Co. v. Klein, 52 Neb. 258, 71 N. W. 1069. Under a constitutional provision granting to all "municipal corporations" the power to assess and collect taxes, a township held a municipal corpora- tion. Gest v. City of Cincinnati, 26 Ohio St. 275; State v. Kelly, 45 S. C. 457, 23 S. E. 281. The adoption of a constitutional provision may, how- ever, repeal existing legislative au- thority for the levy and collection of taxes. Werner v. City of Galveston, 72 Tex. 22, 7 S. W. 726, 12 S. W. 159; City of El Paso v. Conklin, 91 Tex. 537, 44 S. W. 988; Kerr v. Woolley, 3 Utah, 456. is United States v. City of New Orleans, 98 U. S. 381; Southern R. Co. v. St. Glair County, 124 Ala. 491, 27 So. 23; State v. City of Daven- port, 12 Iowa, 335. The duty to levy a special tax, its proceeds to be ap- propriated for a special purpose, is not performed by a levy of a general tax. Midland Elevator Co. v. Stew- art, 50 Kan. 378, construing Kansas laws of 1887, c. 134. McDonald v. City of Louisville, 113 Ky. 425, 68 S. W. 413. The grant of authority to subordinate public corporations to impose taxes 302 TAXATION. 681 by one for the support, either of the nation, the state, or communi- ties of an equal or inferior grade to itself. 20 On the contrary, it is quite generally held that for purely local or municipal uses, the legislature cannot require a subordinate corporation to levy taxes. This principle has been applied to acts attempting to compel municipal authorities to issue bonds for the cost of ac- quiring and maintaining public parks. 21 for their own special local purposes deprives the general assembly of that power. City of New Orleans v. Turpin, 13 La. Ann. 56; Lorie v. Hitchcock, 26 La. Ann. 154; Merrick v. Inhabitants of Amherst, 94 Mass. (12 Allen) 500; Wingate v. Sluder, 51 N. C. (6 Jones) 552; Durach's Appeal, 62 Pa. 491; Hammett v. City of Philadel- phia, 65 Pa. 146; Newman v. Justices of Scott County, 37 Tenn. (5 Sneed) 95; Hope v. Deaderick, 27 Tenn. (8 Humph.) 1. Such an act not un- constitutional. Ex parte Schmidt, 2 Tex. App. 196. If a municipality proceed within its lawful power, the courts are not authorized to inter- fere. Gilkeson v. Justices of Fred- erick, 13 Grat. (Va.) 577; Foster T. City of Kenosha, 12 Wis. 616. 20 state T. Nelson, 105 Wis. 111. 21 People v. City of Chicago, 51 111. 17. "While it is conceded that mu- nicipal corporations, which exist only for public purposes, are subject at all times to the control of the legislature creating them, and have, in their franchises, no vested right, and whose powers and privileges the creating power may alter, modify or abolish at pleasure, as they are but parts of the machinery employed to carry on the affairs of the state, over which, and their rights and ef- fects, the state may exercise a gen- eral superintendence and control, we are not of opinion that power, such as it is, can be so used as to compel any one of our many cities to issue its bonds against its will, to erect a park or for any other improvement to force it to create a debt of mil- lions, in effect, to compel every property owner in the city to give his bond to pay a debt thus forced upon the city. It will hardly be contended that the legislature can compel a holder of property in Chi- cago to execute his individual bond as security for the payment of a debt so ordered to be contracted. A city is made up of individuals owning the property within its limits, the lots and blocks which compose it and the structures which adorn them. What would be the universal judg- ment should the legislature, sua sponte, project magnificent and cost- ly structures within one of our cities triumphal arches, splendid col- ums, and perpetual fountains and re- quire in the act creating them, that every owner of property within the city limits should give his indi- vidual obligation for his proportion of the cost and impose such costs as a lien upon his property forever? What would be the public judgment of such an act and wherein would it differ from the act under considera- tion?" Lovingston v. Wider, 53 111. 302; People v. Common Council of De- troit, 28 Mich. 228; "Blades v. Water Com'rs of Detroit, 122 Mich. 366, 81 682 PUBLIC REVENUES. 303a 303. Limitations upon the power. In addition to the general limitations upon the power to tax, as suggested in the preceding section, there will be found special limitations based upon specific grounds either relating to purpose or amount raised. (a) Limitations as to rate or amount. In this country it is the aim of government as well as the desire of the individual that tax- ation should not result in a confiscation of private property. To secure this end, the constitutions 'or general statutes of the differ- ent states limit the amount of taxation which can be levied either by the government itself or any of its subordinate agencies upon property within its jurisdiction for a specific period of time. 22 This limitation may be designated by a rate per-cent 23 or it may N. W. 271. The court in its opinion in this case in part said that it was not within the power of the legisla- ture to compel taxation of city property for local purposes without the consent of the electors of the city, therefore, an act was unconsti- tutional and void providing for the operation and maintenance of city waterworks without a submission of the question to the voters. 22 City of Cleveland v. United States, 111 Fed. 341. The levy in any one year cannot exceed the amount fixed by law although the levies for previous years have not reached such limit. The average for the series of years not exceeding the rate fixed by law. Hays v. Hogan, 5 Cal. 241; Com- missioners of Roads & Revenues v. Porter Mfg. Co. (Ga.) 30 S. E. 547. The constitution of Georgia, art. 7, 7, par. 1, limiting the power of pub- lic corporations to incur debts, is held not to act as a limitation upon their taxing power. Binkert v. Jansen, 94 111. 283; Peo- ple v. Peoria, D? & E. R. Co., 116 III. 410; City of Leavenworth v. Norton, 1 Kan. 432; Clark v. City of Daven- port, 14 Iowa, 494; Burnes v. City of Atchison, 2 Kan. 454; Columbus Water-Works Co. v. City of Colum- bus, 48 Kan. 378; Stewart v. Kansas Town Co., 50 Kan. 553; Wattles v. City of Lapeer, 40 Mich. 624; Schnee- wind v. City of Miles, 103 Mich. 301; Benoist v. City of St. Louis, 19 Mo. 179; State v. Village of Perrysburg, 14 Ohio St. 472; State v. Hum- phreys, 25 Ohio St. 520; Cummings v. Fitch, 40 Ohio St. 56; State v. Town Council of Beaufort, 39 S. C. 5; In re Limitation of Taxes, 3 S. D. 456, 54 N. W. 417; Bassett v. City of El Paso, 88 Tex. 168. Foster v. City of Kenosha, 12 Wis. 616. Where there is no limitation expressed in the legal organization of a city upon its powers of taxation, the general restriction applies that it is limited in this respect by the object and law of its creation and can only exercise it for legitimate municipal uses. 23 United States v. Town of Cicero, 41 Fed. 83; State v. Southern R. Co., 115 Ala. 250, 22 So. 589; City of Santa Barbara v. Eldred, 95 Cal. 303a TAXATION. 683 be fixed by specifying the gross amount which can be raised. 2 * A tax in excess of the limitation provided by law is not necessarily 378, 30 Pac. 562; Wabash R. Co. v. People, 147 111. 196; People v. Lake Erie & W. R. Co., 167 111. 283; Town of Cicero v. McCarthy, 172 111. 279. A city charter without such limita- tion is not affected by a law subse- quently passed. Chicago & A. R. Co. v. People, 177 111. 91; Cleveland, C., C. ft St. L. R. Co. v. Randle, 183 111. 364, construing Litchfield city charter, art. 9, as af- fected by general school law, art. 8 1. People v. Knopf, 183 111. 410; Otis v. People, 196 111. 542; Colum- bus Water-Works Co. v. City of Co- lumbus, 48 Kan. 99; Chicago, R. I. & P. R. Co. v. Stanfield, 7 Kan. App. 274, 53 Pac. 772; Lafitte v. Morgans, 29 La. Ann. 1; Lamar Water & Elec. Light Co. v. City of Lamar (Mo.) 26 S. W. 1025; City of Stanberry v. Jordan, 145 Mo. 371, 46 S. W. 1093; State v. City of Great Falls, 19 Mont. 518, 49 Pac. 15; Mohmking v. Bowes, 65 N. J. Law, 469, 47 Atl. 507, con- struing New Jersey Laws 1866, p. 1047, 4, as affected by Pub. Laws 1871, p. 1417; State v. Atkinson, 107 N. C. 317. Cummings v. Fitch, 40 Ohio St. 56. If the rate as limited by law is exceeded, the excess alone is invalid. State v. City of Toledo, 48 Ohio St. 112, 11 L. R. A. 729; Gadsby v. City of Portland, 38 Or. 135, 63 Pac. 14; City of Williamsport v. Brown, 84 Pa. 438; Mowry v. Mowry, 20 R. I. 74, 37 Atl. 306; In re Limitation of Taxation, 3 S. D. 456, 54 N. W. 417. Henderson v. Hughes County, 13 S. D. 576, 83 N. W. 682. Construing Constitution of South Dakota, art. 10, 1, restricting the power of mu- nicipal corporations to levy taxes and assessments. Bright v. Hallo- man, 75 Tenn. (7 Lea) 309. If a rate is levied in excess of rhat authorized by law, the illegality goes only to the excess, not to the whole tax. Muller v. City of Denison, 1 Tex. Civ. App. 293, 21 S. W. 391; Jeffer- son Iron Co. v. Hart, 18 Tex. Civ. App. 525, 45 S. W. 321. A special fund for which the full rate author- ized by law had already been levied cannot be increased by the levy of taxes ostensibly for another purpose but for transfer to such fund. Luf- kin v. City of Galveston, 63 Tex. 437; Somo Lumber Co. v. Lincoln County, 110 Wis. 286, 85" N. W. 1023, Construing Wisconsin Rev. St. 1898, 925, sirb-section 142a, prohibiting cities from levying a tax in excess of 3 per cent of the assessed valua- tion of real and personal property. 24 Second Municipality v. Orleans Cotton Jfress Co., 6 Rob. (La.) 411; Wattles v. City of Lapeer, 40 Mich. 624; Taggart v. Board of Auditors, 73 Mich. 53, 40 N. W. 852; Newaygo Mfg. Co. v. Echtinaw, 81 Mich. 416, 45 N. W. 1010; People v. City of Syracuse, 128 N. Y. 632; Haughton v. Jones County Com'rs, 70 N. C. 466; Edwards v. Wilkes County Com'rs, 70 N. C. 571. The two last cases hold that a constitutional pro- vision limiting the levy of taxes to a certain amount does not apply to taxes levied to pay debts against the corporation existing before the adoption of such constitutional pro- vision. 684 PUBLIC REVENUES. 303b void as a whole but will be sustained as to the portion within the limit if the excess can be separated from it. 25 (b) Limitations as to purpose. To maintain a governmental organization of any subordinate agency, certain well recognized expenditures are deemed necessary. The limitation of rate or amount of tax to be raised in any one year may apply not only to such regular disbursements 26 but also to what may be termed 25 Denver City R. Co. v. City of Denver, 21 Colo. 350, 29 L. R. A. 608; O'Kane v. Treat, 25 111. 557; Briscoe v. Allison, 43 111. 291; Allen v. Peoria & B. V. Co., 44 111. 85; Peo- ple v. Nichols, 49 111. 517; Mix v. People, 72 111. 242; Whaley v. Com., 23 Ky. L. R. 1292, 61 S. W. 35. "It is argued for the taxpayers that as the constitution prohibits the levy of any tax rate in one year, in a county of which Nicholas is of a class, of more than fifty cents on a hundred dollars, the levy of twenty- five cents, when thirty-four cents had been previously levied, was void; that it being one sum and not sepa- rable, the whole of that levy was void. The general rule on this sub- ject is, if the illegal tax or an illegal item embraced in the levy be sepa- rable from the remainder, that which is above the legal limit will be void, while that within will be upheld. Many eminent authorities may be cited to support this doctrine. * * * Nicholas County having adopted the free-turnpike system, its fiscal court was authorized to levy as much as twenty-five cents on the one hundred dollars for road and bridge purposes each year provided the total levy for the year did not exceed fifty cents on the $100. That court was the sole judge of the neces- sity of the levy and of the manner In which it should be applied upon its roads. If it went beyond the constitutional restriction, only that part that is without the court's power is contrary to the law. * * * It requires but a simple calculation to make the separation with precision. In such cases this court has uniformly held that the tax levied within the limit of the power will be sustained when it can be separated from the portion that is illegal." Levi v. City of Louis- ville, 97 Ky. 394, 28 L. R. A. 480; Hecock v. Van Dusen, 8 Mich. 359, 45 N. W. 343; State v. Mississippi Bridge Co., 134 Mo. 321; Benson v. Inhabitants of Bloomfield, 58 N. J. Law, 491; Rellstab v. Borough of Bel- mar, 58 N. J. Law, 489; Cummings v. Fitch, 40 Ohio St. 56; State v. Kelly, 28 Or. 225; State v. Kelly, 45 S. C. 457; Bright v. Halloman, 75 Tenn. (7 Lea) 309; Mowry v. Mowry, 20 R. I. 74, 37 Atl. 306; City of San Antonio v. Raley (Tex. Civ. App.) 32 S. W. 180. 26 Drake v. Phillips, 40 111. 388. The power to levy taxes "for any other purpose they may deem neces- sary" carries with it the authority only to levy taxes for purposes of the same general scope and charac- ter as those before mentioned in the same law. Otis v. People, 196 111. 542. The appropriations and levy should specify the purpose for which the moneys raised are to be used. Mayfield Woolen Mills v. City of Mayfield, 22 Ky. L. R. 1676, 61 S. 304 TAXATION. 685 special purposes or uses bf public money which are recognized as proper but which are not regularly made from year to year. The erection of new buildings or construction of works of public improvement permanent in their character may be considered special purposes. 27 The power of a municipality to tax as re- stricted by such constitutional limitations must be ascertained from an examination of the authorities construing them, 28 and such provisions restricting either the amount or the rate levied, the purpose for which raised or the manner in which levied are never considered as unconstitutional because of being a restric- tion or limitation upon the general taxing powers of a commu- nity. 29 304. Purpose of taxation. Specific taxation may be illegal, and therefore void, although within the limitation as to rate or amount fixed by law because of the purpose for which levied. The very essence of the validity of a tax under our theory of government is a public use of the moneys derived. Private property, if taken for other than a pub- lic purpose without the payment of pecuniary compensation is confiscation and cannot be sustained or upheld under any attribute or theory of government as understood and practiced here. In common with all legal questions, there are certain purposes clearly recognized as public in their nature, others as clearly private in their character and still others which lie along the dividing line between the two. The less of government a people have, the more independent and prosperous they are. The less a government engages in what in their elementary and basic economic character are "private W. 43. The obligation of a void con- 27 Combs v. Letcher County, 21 Ky. tract where the city has received the L. R. 1057, 54 S. W. 177. benefits may be met by taxation "for current expenses" when the levy 28 Herring v " Dixon ' 122 N " C ' 424 ' is within the constitutional limit. State v " Ha y w d County Com'rs, -I 00 AT p 0-1 C Rodman-Heath Cotton Mills v. Town ' of Waxhaw, 130 IN. C. 293, 41 S. E. 29 city of Cumberland v. Magruder, 488; State v. Haywood County 34 Md. 381; Assessors of Philadel- Com'rs, 122 N. C. 815; Herring v. phia v. Philadelphia Com'rs, 3 Dixon, 122 N. C. 424; Ainsworth v. Brewst. (Pa.) 333. Dean, 21 N. H. 400. 686 PUBLIC REVENUES. 304 enterprises," the more successful financially will be all the people within its jurisdiction. Government should never undertake the execution or manage- ment of, nor extend aid to, enterprises, the character of which as defined by the use of the term "private" is questionable. The fact that a government engages in an enterprise does not change its economic character from a purely private enterprise or busi- ness to a public one. Taxation for all such questionable enter- prises by the government is universally considered not only un- wise but unconstitutional and invalid. 30 o Citizens' Sav. & Loan Ass'n v. City of Topeka, 87 U. S. (20 Wall.) 655. "But such instances are few and exceptional, and the proposition is a very broad one, that debts con- tracted by municipal corporations must be paid, if paid at all, out of taxes which they may lawfully levy, and that all contracts creating debts to be paid in future, not limited to payment from some other source, im- ply an obligation to pay by taxation. "It follows that in this class of cases the right to contract must be limited by the right to tax, and if in the given case no tax can lawfully be levied to pay the debt, the con- tract itself is void for want of authority to make it. "If this were not so, these corpora- tions could make valid promises, which they have no means of ful- filling, and on which even the legis- lature that created them can confer no such power. The validity of a contract which can only be fulfilled by a resort to taxation, depends on the power to levy the tax for that purpose. Sharpless v. City of Phila- delphia, 21 Pa, 147, 167; Hanson v. Vernon, 27 Iowa, 28; Allen v. In- habitants of Jay, 60 Me. 127; Lowell v. City of Boston, 111 Mass. 454; Whiting v. Sheboygan & F. L. R. Co., 25 Wis. 188. It is, therefore, to be inferred that when the legisla- ture of a state authorizes a county or city to contract a debt by bond, it intends to authorize it to levy such taxes as are necessary to pay the debt, unless there is in the Act itself, or in some general statute, a limitation upon the power of taxa- tion which repels such an infer- ence." People v. Parks, 58 Cal. 624. In a drainage law, provision was made for the ostensible purpose of the act and also for the storage of dfibris from mines. The court says: "The storage of debris is in its nature a private enterprise in which a few only are interested. The drainage of a state is a public purpose in which the public may be interested. To promote a public purpose by a tax levy upon the property in the state is within the power of the leg- islature; but the legislature has no power to impose taxes for the bene- fit of individuals connected with a private enterprise even though the private enterprise might benefit the local public in a remote or collateral way." Opinion of the Justices, 58 Me. 590. "Individuals and corporations embark in manufactures for the pur- 304 TAXATION. 687 The legislative body of a sovereign, much less a subordinate body, possessing the right only to exercise such powers as may poses of personal and corporate gain. Their purposes and objects are pre- cisely the same as those of the far- mer, the mechanic or the day labor- er. They engage in the selected branch of manufactures for the pur- pose and with the hope and expecta- tion not of loss but of profit. * * * The general benefit to the community resulting from every de- scription of well-directed labor is of the same character, whatever may be the branch of industry upon which it is expended-. All useful laborers, no matter what the field of labor, serve the state by increasing the aggre- gate of its products its wealth!. There is nothing of a public nature any more entitling the manufacturer to public gifts, than the sailor, the mechanic, the lumberman or the farmer. Our government is based upon equality of rights. All honest employments are honorable. The state cannot rightfully discriminate among occupations, for a discrimina- tion in favor of one branch of in- dustry is a discrimination adverse to all other branches. The state is equally to protect all, giving no un- due advantages or special or exclu- sive preferences to any." Cooley, Taxation, p. 103. "It is also agreed that the determination what is and what is not a public pur- pose belongs in the first instance to the legislative department. It be- longs there because the taxing power is a branch of the legislative, and the legislature cannot lie under the necessity of requiring the opinion or the consent of another department of the government before it will be at liberty to exercise one of its acknowledged powers. The inde- pendence of the legislature is an axiom in government; and to be in- dependent, it must act in its own good time, on its own judgment, in- fluenced by its own reasons, restrain- ed only as the people may have seen fit to restrain the grant of leg- islative power in making it. The legislature must, consequently, de- termine for itself, in every instance, whether a particular purpose is or is not one which so far concerns the public as to render taxation admis- sible. But it is also generally ad- mitted that the legislative determi- nation on this subject is not absolute- ly conclusive. It may be sufficiently so to put the administrative machin- ery of the state in motion; but when the exaction is made of an indivi- dual, and the power of the state is made use of to compel submission, he has always the right to invoke the protection of the law. And an appeal to the law for protection of individual property must necessarily render the question, which lies at the foundation of the demand, a judicial question, upon which the courts cannot refuse to pass judg- ment. It has been forcibly, and yet very truly, said, that an unlimited power in the legislature to make any and everything lawful which it might see fit to call taxation, would, when plainly stated, be an unlimited power to plunder the citizen. In at- tempting to exercise the right, in any particular case, the legislature mere- ly asserts its jurisdiction to act; but questions of jurisdiction are not usually concluded by a decision in Its favor made by the party claiming 688 PUBLIC REVENUES. 304 expressly be granted or delegated to it is limited in its right to levy taxes to those imposed for public purposes or those in which the people of the corporation have a general interest. 31 If the it; they necessarily remain open, and may be disputed anywhere. This is as true of courts as it is of the legislature; jurisdiction comes from the law, and is not obtained by any tribunal through a simple assertion tnat it exists. When, therefore, the question of validity of taxation be- comes judicial, if it shall appear that the exaction is made for a pur- pose not public, the right of the in- dividual to protection is clear." Wayland Political Economy, Book 4, c. 3, 2. "The only ground on which the support of religion by public taxation can be defend- ed is that its existence is nec- essary for the support of the civil government and that it can be sus- tained in no other manner than by compulsion. The first assertion we grant to be true; the second we utterly deny. Hence, we do not be- lieve that any taxation for this pur- pose is necessary. All that religious societies have a right to ask of the civil government is the same privil- eges for transacting their own af- fairs which societies of every other sort possess. This they have a right to demand, not because they are religious societies but because the exercise of religion is an inno- cent mode of pursuing happiness. If these be not granted, religious men are oppressed and the country where such oppression prevails, let it call itself what it may is not, in this matter, free." Nalle v. City of Austin (Tex. Civ. App.) 21 S. W. 375. si Citizens' Sav. & Loan Ass'n v. City of Topeka, 87 U. S. (20 Wall.) 655. "We have established we think, beyond cavil, that there can be no lawful tax which is not laid for a public purpose. It may not be easy to draw the line in all cases so as to decide what is a public purpose in this sense and what is not. It is undoubtedly the duty of the legis- lature which imposes or authorizes municipalities to impose a tax to see that it is not to be used for purposes of private interest instead of a public use and the courts can only be justified in interposing when a violation of this principle is clear and the reason for interference cogent, and in deciding whether, in the given case, the object for which the taxes are assessed falls upon the one side or the other of this line, they must be governed mainly by the course and usage of the govern- ment, the objects for which taxes have been customarily and by long course of legislation levied, what objects or purposes have been con- sidered necessary to the support and for the proper use of the govern- ment, whether state or municipal. Whatever lawfully pertains to this and is sanctioned by time and the acquiescence of the people may well be held to belong to the public use and proper for the maintenance of good government though this may not be the only criterion of rightful taxation." Webster v. Police Jury of Rapides, 51 'La. Ann. 1204. Under Const, of 1879, arts. 163 and 202, granting the exercise of the taxation power by parishes for parish purposes and the care by each of its infirm, sick and 304 TAXATION. 689 purpose for which the obligation is contracted is one not of a pub- lic character, a tax cannot be constitutionally or legally imposed to pay such obligation. 32 This question has already been dis- disabled paupers, Act 157 of 1894 requiring parishes to meet the ex- pense of treatment at Keeley insti- tutes of persons unable to pay, is constitutional. Merrick v. Inhabitants of Amherst, 94 Mass. (12 Allen) 500. The estab- lishment of an agricultural college is a public purpose sufficient to authorize the appropriation of pub- lic moneys. Sherman v. Village of Clifton Springs, 27 Hun (N. Y.) 390. A tax for the refund of illegal taxes paid during previous years is for a public purpose. Hixon v. Oneida County, 82 Wis. 515, 52 N. W. 445. Curtis' Adm'r v. Whipple, 24 Wis. 350. "If we turn to the cases where taxation has been sustained as in pursuance of the power, we shall find in every one of them that there was some direct advantage accruing to the public from the outlay, either by its being the owner or part owner of the property or thing to be creat- ed or obtained with the money, or the party immediately interested in and benefited by the work to be per- formed, the same being matters of public concern; or because the pro- ceeds of the tax were to be expended in defraying the legitimate expenses of government, and in promoting the peace, good order and welfare of so- ciety. Any direct public benefit or interest of this nature, no matter how slight, as distinguished from those public benefits or interests in- cidentally arising from the employ- ment or business of private indi- viduals or corporations, will un- doubtedly sustain a tax. In thus endeavoring to define how the public must be beneficially interested in order to justify the raising of money by taxation in cases like the present, we of course do not intend to include all the purposes for which money may be so raised. Taxes may be levied and collected for charitable purposes, but these constitute a pecu- liar ground for the exercise of the power which does not exist here. "So claims founded in equity and justice in the largest sense, and in gratitude, will support a tax; such claims, however, and we think all others where taxation is proper, ex- cept claims founded in charity, may be referred to the general principle above spoken of, of public interest in, or benefits received by, the trans- actions out of which, the claims arose." 32 People v. Rio Grande County Com'rs, 11 Colo. App. 124; Haber- sham County Com'rs v. Porter Mfg. Co., 103 Ga. 613; Sleight v. People, 74 111. 47; Gerry v. Inhabitants of Stoneham, 83 Mass. (1 Allen) 319. The appropriation by vote of the in- habitants of a town of moneys to celebrate the Fourth of July and for other purposes renders illegal an assessment based upon such vote. Ada Tp. v. Kent Circ. Judge, 114 Mich. 77; Colt v. City of Grand Rap- ids, 115 Mich. 493; Cover v. Town of Baytown, 12 Minn. 124 (Gil. 71). Taxes cannot be levied for the pur- pose of indemnifying persons volun- tarily paying bounties to volunteers. See, also, Freeland v. Hastings, 92 Mass. (10 Allen) 570, as holding that the legislature has no power Abb. Corp. 44. 690 PUBLIC REVENUES. 304 cussed in connection with the subject of the right of a public corporation to incur indebtedness. The cases there cited sustain the principles given in this section. 33 The construction of levees, 34 the maintenance of the public peace, safety and health, 35 to authorize the repayment of money paid by individuals for substitutes. Wagner v. Jackson, 31 N. J. Law, 189. The cost of substitutes held not a public purpose authorizing the levy of taxes. But in Wisconsin it Is held that' the raising of money by taxation for the payment of bounties to volunteers enlisting in the mili- tary service of the United States is for a public purpose, bee the cases of Brodhead v. City of Milwaukee, 19 Wis. 624; and Dinehart v. Town of La Fayette, 19 Wis. 677. See, also, the later case of State v. Tap- pan, 29 Wis. 664; In re Jensen, 44 App. Div. 509, 60 N. Y. Supp. 933, A tax is void levied to defray ex- penses incurred by public officials in defending unsuccessful prosecutions against them for official misconduct; the purpose not being a public one within the meaning of the constitu- tion, art. 8, 10. Bush v. Orange County Sup'rs, 159 N. Y. 212, 45 L. R. A. 556; Mont- gomery v. Com., 91 Pa. 125; Jefferson Iron Co. v. Hart, 18 Tex. Civ. App. 525; Mitchell County v. City Nat. Bank, 91 Tex. 361; Drew v. Davis, 10 Vt. 506; Neale v. Wood County Ct.. 43 W. Va, 90. Wisconsin Industrial School for Girls v. Clark County, 103 Wis. 651, 79 N. W. 422. A public corporation cannot expend moneys raised by general taxation in partial support of the corporation engaged In a private enterprise. as State v. Rose,. 26 Fla. 117, 7 So. 870; People v. Allen, 42 N. Y. 378. Construing New York Const. 1846, art. 1, 9, requiring a two-thirds vote for every bill appropriating money "for local or private pur- poses" and holding that a bill ap- propriating money for the improve- ment of the navigation of the Bou- quet River is void because appro- priating money for a "local or pri- vate purpose." 145 et seq. See, also, 417 et seq., post. s* People v. Whyler, 41 Cal. 351. In this case the point was urged that this was an assessment and not a tax and therefore void under the California statute. Speaking of this point the court said: "The principal reason urged in support of the posi- tion that the charge is an assess- ment, is that it is levied for the purpose of making a local improve- ment. Acts almost innumerable have been passed, levying taxes for such purposes, and no cases are call- ed to our attention which hold that by reason of the purpose for which they were levied, they became assess- ments. Taxes for the construction of roads, bridges and school houses are familiar instances. The funds to pay for the grading of a street, may be raised by taxes levied upon all the property of a town, should the law so direct; but the tax does not become an assessment, because the latter is the mode usually adopt- ed to raise the funds for that pur- pose. There is no sufficient reason for holding that the charge is not what the Legislature declared it to be a tax." State v. Maginnis, 26 La. Ann. 558. 304 TAXATION. 691 the construction and repair of public buildings and improve- 35 State v. Mason, 153 Mo. 23. The rule applied to a tax levied for the payment of bounties in Trues- dell's Appeal, 58 Pa. 148. See, also, Hilbish v. Catherman, 64 Fa. 154, where the court said: "What are taxes but the revenue collected from the people for objects in which they are interested the contributions of the people for things useful and con- ducive to their welfare? This being the purpose of taxation, there can be no difference between a precedent authority for payment to such an ob- ject and a subsequent compensation for the same thing. The case before us is a fit illustration. * * * There is no difference between this case and that of one who builds a bridge or a court house for a speci- fied sum. He can recover no more; but if in fact he has, by a rise in prices, an act of God or for any other good cause, been compelled to expend a larger sum, will anyone doubt the power to pay the actual cost of the work out of the public treasury? The public received the benefit and it is just and right that the public money should pay for it." Weister v. Hade, 52 Pa. 474; Wahl- schlager v. Town of Liberty, 23 Wis. 362. In the absence of express authority, a town has no power to levy a tax for the raising of moneys to pay bounties to men drafted into the United States military service. See, also, State v. Tappan, 29 Wis. 664, as holding Wisconsin Laws 1869, c. 260, compelling taxation for the purpose of paying bounties to volun- teers unconstitutional, not being for a municipal purpose, and also be- cause of its compulsory features. In respect to the expenditure of public moneys for the payment of bounties or pensions, see Trustees of Firemen's Benev. Fund v. Roome, 93 N. Y. 313. Cooley, Taxation, p. 110: "Some taxes levied by the Fed- eral government are directly calcu- lated and intended to benefit pri- vate individuals. For an illustra- tion, it gives bounty land or Ren- sions to those who have performed military or naval services for the country, notwithstanding it has made no promise, and is consequent- ly under neither a legal nor a moral obligation to do so. But the prim- ary object in all such bounties is not the private but the public interest. To show gratitude for meritorious public services in the army and navy by liberal provision for those who have performed them is not only proper in itself, but it may reason- ably be expected to have a powerful influence in inciting others to self- denying, faithful and courageous services in the future, when the gov- ernment, which is so ready to be generous as well as just, shall have need of their assistance. The same may be said of a like recognition of valuable public services rendered by other persons; the question in every case is not one of power, but of pru- dence and public policy." State v. Tappan, 29 Wis. 664, 672. "That the legislature may confer upon cities, towns and villages pow- er to raise money by taxation to pay bounties to those who, in time of war, shall enlist in the military serv- ice of the United States, has been settled by repeated decisions of this court and of the courts of other states. It was so held upon the grounds that claims for public serv- 692 PUBLIC REVENUES. 304 ments, 38 the establishment and maintenance of public parks, 37 are uses which come within the definition of those for a public pur- ices, or expenditures founded in equity and justice, in gratitude or charity, will support a tax, which is voluntarily imposed upon a munici- pality by a majority of the citizens thereof, or by the consent of the mu- nicipality, evidenced in some other manner. Brodhead v. City of Milwau- kee, 19 Wis. 624. No person has the hardihood to deny that the men who enlisted during our late war to serve in the ranks (and these alone were entitled to bounties), became there- by entitled to the gratitude of the nation; and because of this, and be- cause also, it was a matter of gre&t public concern that the ranks of our armies should be constantly replen- ished by recruits from the walks of civil life, it was held that the legis- lature might authorize the various cities, towns and villages of the state to tax themselves respectively, to a limited extent, to promote the public welfare, and at the same time to recognize these obligations of grati- tude." se Durrett v. Buxton, 63 Ark. 397 , Habersham County Com'rs v. Porter Mfg. Co., 103 Ga. 613, 30 S. E. 547. "The extra tax to build a court house was enjoined on the ground that the same was unconstitutional and therefore void. It was contended in the court below as well as in this court that the levy of the extra tax for this purpose violated that provis- ion of the constitution contained in art. 7, 7, par. 1, which declares that 'the debt hereafter incurred by any county, municipal corporation or political division of this state except as in this constitution provided for, shall not exceed seven percentum of the assessed value of all the taxable property therein and no such county, municipality or division shall incur any new debt, except for a tempo- rary loan or loans to supply casual deficiencies of revenue, not to exceed one fifth of one percentum of the assessed value of taxable property therein, without the assent of two thirds of the qualified voters thereof at an election for that purpose, to be held as may be prescribed by law, but any city, the debt of which does not exceed seven per centum of the as- sessed value of the taxable proper- ty, * * * may be authorized by law to increase at any time the amount of said debt, three percen- tum upon such assessed valuation.' The position taken by counsel was that the levying of the tax was the creation of a debt, within the mean- ing of the section above quoted, and, that, the purpose for which it was levied not being 'to supply casual deficiencies of revenue,' the levy was illegal and void, because not submit- ted to a vote of the people of the county. We cannot concur in this view. The levying of a tax is not the incurring of a debt. The very purpose of the clause of the consti- tution above quoted was to compel the counties and other political divi- sions of this state, to pay by annual taxation, as far as possible all ex- penses which had to be borne. As, however, there might be instances in which the incurring of a debt was necessary and proper, the con- stitution does not absolutely prohibit it, but places a limit upon the power of the public authorities of the dif- ferent counties to incur debts, and 304 TAXATION. 693 pose. The payment of expenses incurred in opposing before the legislature the passage of an act annexing contiguous territory, 38 a donation to a private institution not under the control of the even where the debt sought to be in- curred is within the limit, requires the consent of two-thirds of the qual- ified voters, so that no debt may oe incurred unless such a course is un- doubtedly for the public good. * * * The necessities of the vari- ous counties in regard to these mat- ters are to be determined by the pe- culiar conditions surrounding each county and therefore the sound judgment of the county authorities in each case must be relied upon to provide the public with proper build- ings on the one hand and to protect the taxpayer from useless and un- necessary burdens in regard to such matters on the other. While the power of the county authorities to levy taxes for certain purposes is limited as to amount to be levied and as to others the power is depend- ent upon a recommendation of the grand jury still in reference to the duty of providing the county with public buildings * * * the right to levy a tax sufficient to carry into effect such purpose is unlimited as to amount." Walsh v. City Council of Augusta, 67 Ga. 293; Lewis v. Lofley, 92 Ga. 804. Byrne v. City of Covington, 15 Ky. L. R. 33, 21 S. W. 1050. A gen- eral tax for the construction of a sewer is authorized where the im- provement was a public necessity and the right to tax abutting prop- erty for the construction of such im- provements did not exist. Combs v. Letcher County, 21 Ky. L. R. 1057, 54 S. W. 177; Friend v. Gilbert, 108 Mass. 408. The payment of addi- tional compensation to a subcontrac- tor on a public building comes with- in the rule. Hunter v. Justices of Campbell County, 47 Tenn. (7 Cold.) 49; Cresswell Ranch & Cattle Co. v. Roberts County (Tex. Civ. App.) 27 S. W. 737. 37 South Park Com'rs v. First Nat. Bank, 177 111. 234, affirming Knopf v. Chicago Real Estate Board, 173 111. 196. 33 Coolidge v. Brookline, 114 Mass. 592. In deciding that a municipal corporation could impose no tax for the purpose mentioned in the text, the court said: "Such power to tax, must, in all cases, spring from the statutes, and must be found there in terms, or be necessarily inferred from some corporate duty imposed or some corporate right given. The only exception to this rule is confin- ed to a few cases of usage relating to the comfort and convenience of the inhabitants of a town, such as town clocks, hay scales, pumps, reservoirs, etc., and is not to be ex- tended. Towns have been kept rig- idly within this rule both by the legislature and by the courts. Its observance is necessary from the character of their organization and from the nature of the delegated powers which they exercise; and as there is no controlling power pro- vided by law to restrain and limit them in the expenditures they can by law incur, and for which they can lay taxes, it is of the first impor- tance to the taxpayer that they ex- ercise this great power for author- ized purposes, and a summary rem- edy against abuse of such legal pow- er is given by the statute under 694 PUBLIC REVENUES. 304 municipality, 39 an appropriation for the reimbursement of a town- ship treasurer who has been robbed of public moneys while in his keeping, 40 refunding a donation given to the town without expec- tation of repayment, 41 the benefits which may come to a city or which this bill is brought." Follow- ing Minot T. Inhabitants of West Roxbury, 112 Mass. 1. 39 Hitchcock v. City of St. Louis, 49 Mo. 484. *o Thorndike v. Inhabitants of Camden, 82 Me. 39, 7 L. R. A. 463. A town has no power to levy taxes for the repayment of a tax collector who upon his personal responsibility accepted a note of a taxpayer as a cash payment of his taxes, and sub- sequently was unable to collect the same having accounted to the town for the fact of the note as cash. People v. Onondaga Sup'rs, 16 Mich. 254; Bristol v. Johnson, 34 Mich. 123. In this case, one Bera, treasurer, had public funds stolen from him and reimbursed the town- ship from his personal estate. The legislature passed an act calling for a tax to be levied, and Bera refund- ed. In holding this unconstitutional the court said: "There was un- questionably room for a strong mor- al appeal to the taxpayers of the township to divide the loss among the whole, Instead of leaving it to fall wholly upon him; an^ the Leg- islature saw fit to enact that the amount should be raised from the taxpayers and refunded to him and in obedience thereto the sum was spread upon the roll and it became a lien upon the taxable real estate in the township, unless the enactment was Invalid. The defendant, John- son, as treasurer, proceeded to make collection and some of the taxpayers made payment without bringing into question the legality of the tax; but tne complainants resisted and filed this bill. * * * Whatever may be said in favor of the moral fitness of the purpose to relieve Mr. Bera there can be no doubt of complain- ants' right to question their legal obligation or liability in the prem- ises nor of their right to escape payment if not liable; and that as matter of law they were not liable appears to the court to have been settled beyond controversy. A repe- tition of the reasoning of former cases is not necessary and if further reasons might be added, they are not called for." But see the fol- lowing cases holding that where pub- lic officials have been subjected to loss in an honest attempt to perform their public duty, they may be in- demnified by the municipality for which they were acting: Hadsell v. Inhabintants of Hancock, 69 Mass. (3 Gray) 526; Nelson v. Inhabitants of Milford, 24 Mass. (7 Pick.) 18; Ban croft v. Inhabitants of Lynnfield, 35 Mass. (18 Pick.) 566; Fuller v. In- habitants of Groton, 77 Mass. (11 Gray) 340; Baker v. Inhabitants of Windham, 13 Me. 74; Pike v. Middle- ton, 12 N. H. 278; Sherman v. Carr, 8 R. I. 431; Briggs v. Whipple, 6 Vt. 95. *i Perkins v. Inhabitants of Mil- ford, 59 Me. 315; Osgood v. Town of Conway, 67 N. H. 100, 36 Atl. 608. The rule also applies to services voluntarily rendered a town. The levy of a tax for their payment is invalid. Citing, among other cases, 304 TAXATION. 695 village from the establishment of a successful manufacturing plant, 42 the expenditure of public moneys for the entertainment of a presidential candidate attending an industrial exposition, 43 the construction of a dam at the expense of the taxpayers, the main purpose of which is to generate power for lease to private manu- facturing enterprises which may thereby be induced to come to tha city, 44 are not public purposes within the meaning of that phrase Town of Lebanon v. Griffin, 45 N. H. 558; Buxton v. Chesterfield, 60 N. H. 357; Bartholomew v. Jackson, 20 Johns. (N. Y.) 28. The court said: "A promise to pay for services vol- untarily rendered, without the re- quest or authority of the promisor, is not enforceable, although they may be beneficial and valuable to him. * * * As the town did not become legally liable to pay for the services, under either an express or an implied contract, the imposition of a tax upon its citizens for that purpose would be unauthorized and illegal." 42 Weismer v. Village of Douglas, 4 Hun, 201, 64 N. Y. 91. See, also, the following authorities relative to the right of taxation for the benefit of private business enterprises: Citizens' Sav. & Loan Ass'n v. City of Topeka, 87 U. S. (20 Wall.) 655; City of Parkersburg v. Brown, 106 U. S. 487; Commercial Nat. Bank v. City of lola, 2 Dill. 353, Fed. Cas. No. 3,061; English v. People, 96 111. 566; National Bank of Cleveland v. City of lola, 9 Kan. 689; McConnell v. Hamm, 16 Kan. 228; Central Branch U. P. R. Co. v. Smith, 23 Kan. 745; Opinions of the Justices, 58 Me. 590; Allen v. Inhabitants of Jay, 60 Me. 124; Lowell v. City of Boston, 111 Mass. 454. Cooley, Taxation p. 126. "How- ever important it may be to the community that individual citizens should prosper in their industrial enterprises, it is not the business of government to aid them with its means. Enlightened states, while giving all necessary protection to their citizens, will leave every man to depend for his success and pros- perity in business on his own exer- tions, in the belief that by doing so his own industry will be more cer- tainly enlisted, and his prosperity and happiness more probably secur- ed. It may therefore be safely assert- ed that taxation for the purpose of raising money from the public to be given or even loaned to private par- ties, in order that they may use it in their individual business enter- prises, is not recognized as an em- ployment of the power for a public use. In contemplation of law it would be taking the common prop- erty of the whole community and! handing it over to private parties for their private gain, and conse- quently unlawful. Any incidental benefits to the public that might flow from it could not support it as legitimate taxation." Moore v. Hoffman, 2 Cin. R. (Ohio) 453. <*Nalle v. City of Austin (Tex. Civ. App.) 21 S. W. 375. "The power of taxation is only lodged in the city for public purposes. It hag no authority to engage in business enterprises that are private in char- acter. It is to the charter created 696 PUBLIC REVENUES. 304 and the levy of taxes to meet such disbursements will be held illegal and can be enjoined. To authorize the levy of taxes by a subordinate corporation it is not necessary, however, that they be of strictly local character so long as the public receive some direct adva'ntage. In a Wisconsin case 45 the court held that the legis- lature could authorize taxes for defraying the expenses of govern- ment, promoting the peace, good order and welfare of society, paying claims founded upon natural justice and equity or upon gratitude for public services or expenditures, or discharging the obligations of charity and humanity provided the liability of the corporation had been established. The limitation is the saving clause of this decision. Railway aid. The use of a railroad though owned by a private corporatiDn is public to such an extent, it has been repeatedly held, as to authorize taxation for its aid. This proposition at the pres- by law that the city looks for its power to act and create a debt chargeable against the municipality, payable by taxes collected from its citizens. If the main purpose of the city is to engage in the unlaw- ful enterprise, it cannot give the illegal act life by naming it for a purpose that is unlawful, and dis- guising the true purpose under the semblance of legal authority. De- claring the exercise of power in the given instance to be for a purpose within its charter powers does not add any validity to the illegal act; for such act is not only ultra vires the city charter, but is in law a fraud upon the rights of the tax- payers. The declaration made by the city council through the or- dinances authorizing the issue of the bonas that the purpose in build- ing the dam was to furnish the city with water and lights, although for an apparent legal purpose, is ac- cording to the allegations of the count of the petition quoted, for the main purpose of furnishing the city water power to engage in manufac- turing enterprises, and that furnish- ing the city with water and lights is simply incidental to such main purpose. * * * If this be the principal purpose and object in erecting the dam, and issuing the bonds, the fact that there is inci- dentally connected with such enter- prise a purpose that is lawful will not give any life and validity to the illegal purpose; but the whole transaction is tainted with the vice of the forbidden object, and is in its entirety illegal. The courts will not endeavor to separate the legal and illegal parts of the trans- action, for this would be impracti- cable, and a court of equity will not undertake it." Citing among other cases Strahan v. Town of Malvern, 77 Iowa, 454, 42 N. W. 369; Cincin- nati St. R. Co. v. Smith, 29 Ohio St. 307; Citizens' Bank v. City of Ter- rell, 78 Tex. 456. State v. Tappan, 29 Wis. 664; Mills v. Charleton, 29 Wis. 400. 305 TAXATION. ent time is not disputed though the power to levy taxes for this purpose must be expressly given. It can never be implied. 48 3C5. The payment of debts. The payment by an individual as well as a public corporation of a legal debt or obligation is considered praiseworthy, and the levying of taxes, when within the limit fixed by law is not open to objection. The right to levy for this purpose need not be ex- pressly given where there is first legal authority for the incurr- ment of the expenditure. The power to incur the expense implies the power and the duty to pay, the resulting obligation. 47 The performance of the duty can be enforced by mandamus. 48 Ogden v. Daviess County, 102 U. S. 634; Scotland County Ct. v. United States, 140 U. S. 41; North- ern Pac. R. Co. v. Roberts, 42 Fed. 734; Brocaw v. Gibson County Com'rs, 73 Ind. 543; Stewart v. Polk County Sup'rs, 30 Iowa, 9; Burnes v. City of Atchison, 2 Kan. 454. Clifton v. Hobgood, 106 La. 535, 31 So. 46. Under constitutional and statutory authority a special tax can be imposed in aid of a railroad that does not pass through nor ter- minate in the district taxed. Fulli- love v. Police Jury of Bossier Par- ish, 51 La. Ann. 359. See, also, cases cited in 145 et seq. United States v. City of New Orleans, 98 U. S. 381, reversing Fed. Cas. No. 15,871, 2 Woods, 230. "The number and variety of works which may be authorized, having a gen- eral regard to the welfare of the city or of its people, are mere mat- ters of legislative discretion. All of them require for their execution considerable expenditures of money. Their authorization without provid- ing the means for such expendi- tures would be an idle and futile proceeding. Their authorization, therefore, implies and carries with it the power to adopt the ordinary means employed by such bodies to raise funds for their execution, un- less such funds are otherwise pro- vided. And the ordinary means in such cases is taxation. A munic- ipality without the power of taxa- tion would be a body without life, incapable of acting, and serving no useful purpose. For the same rea- son, when authority to borrow money or incur an obligation in or- der to execute a public work is con- ferred upon a municipal corporation, the power to levy a tax for its pay- ment or the discharge of the obli- gation accompanies it; and this too, without any special mention that such power is granted. This arises from the fact that such corporations seldom possess so seldom, indeed, as to be exceptional any means to discharge their pecuniary obliga- tions except by taxation." Citizens' Sav. & Loan Ass'n v. City of Topeka, 87 U. S. (20 Wall.) 655; Quincy v. Jackson, 113 U. S. 332; Ex parte Parsons, 1 Hughes, 282, Fed. Cas. No. 10,774; City of 698 PUBLIC REVENUES. 05a (a) Of judgments. So the payment of a judgment secured by due process of law against the corporation is considered a public purpose and not open to objection. As the only method possessed by public corporations for raising revenues is the levying of taxes in the manner provided by law, the levy and collection for this specific purpose will not be considered invalid, 49 and if officials Cleveland v. United States (C. C. A.) Ill Fed. 341. Where a munic- ipal corporation is authorized to contract debts when no mode for their payment is prescribed or pro- vided, the authority to levy a tax for such purpose will be implied. Nougues v. Douglass, 7 Cal. 65; Spring v. Collector of Olney, 78 111. 101; Iowa R. Land Co. v. County of Sac, 39 Iowa, 124; City of Aurora v. Lamar, 59 Ind. 400; Public School Com'rs v. Allegany County Com'rs, 20 Md. 449; Webster v. Baltimore County Com'rs, 51 Md. 395; Raton Waterworks Co. v. Town of Raton, 9 N. M. 70, 49 Pac. 898. The pay- ment of a debt contracted for a special purpose is limited to the funds derived from a tax levy as authorized by law although this may be insufficient. Simmons v. Wilson, 66 N. C. 336. Constitutional provisions do not af- fect the power of taxation for the payment of debts contracted before the adoption of such provisions. Slocomb v. City of Fayetteville, 125 N. C. 362; Voorhies v. City of Houston, 70 Tex. 331, 7 S. W. 679. Subsequent legislation cannot af- fect prior debts or the means ex- isting at the time of contraction for their payment. Collier v. Peacock (Tex. Civ. App.) 55 S. W. 756. A debt of a previous year cannot be paid by the tax levy of a succeeding year. Shepard v. City of Kaysville, 16 Utah, 340, 52 Pac. 592. *8 State v. City of New Orleans, 23 La. Ann. 358; Inhabitants of Lex- ington v. Mulliken, 73 Mass. (7 Gray) 280; Attorney General v. City of Salem, 103 Mass. 138; Com. v. City of Pittsburgh, 34 Pa. 496; State v. City of Milwaukee, 25 Wis. 122. 49 Stryker v. Grand County Com'rs (C. C. A.) 77 Fed. 567; King v. Grand County Com'rs (C. C. A.) 77 Fed. 583; City of Helena v. United States, 104 Fed. 113. A tax levied for the payment of a judg- ment is a special tax as provided by 4815 of the Political Code of Mon- tana and not one for general mu- nicipal or administrative purposes as denned by 4814 of the same code. Britton v. Platte City, 2 Dill. 1, Fed. Gas. No. 1,907; People v. Rio Grande County Com'rs, 7 Colo. App. 229, 42 Pac. 1032; City Coun- cil of Augusta v. Pearce, 79 Ga. 98; Chicago, R. I. & P. R. Co. v. Stan- field, 7 Kan. App. 274; First Nat. Bank v. Morton County Com'rs. 7 Kan. App. 739, 52 Pac. 580. The obligation to pay a judgment held a continuing one. Shippy v. Wilson, 90 Mich. 45, 51 N. W. 353; Whitney v. Village of Hudson, 69 Mich. 189; State v. Clay County, 46 Mo. 231; Custer County v. Chicago, B. & Q. R. Co., 62 Neb. 657, 87 N. W. 341. A levy, however, for the payment of a judg- ment where none exists is invalid. United States Trust Co. v. Ter., 10 N. M. 416, 62 Pac. 987; Brown r. TAXATION. 699 refuse to perform their duty in this respect, they can be com- pelled by mandamus or other proper proceedings 50 unless the to- tal tax levy is then at the full limit fixed by law. 51 (b) Of bonds and interest. Where the express power has been given a public corporation to issue bonds, the implied power fol- lows to levy taxes for their payment in the manner provided by law, 52 or for the payment of interest, upon indebtedness whether Assessors of Railway, 51 N. J. Law, 27y, 17 Atl. 122; City of Sherman v. Langham (Tex.) 40 S. W. 140; State v. City of Madison, 15 Wis. 33. An act of the legislature is unconsti- tutional which forbids a city from levying taxes to pay judgments against it. Grand Island & N. W. R. Co. v. Baker, 6 Wyo. 369, 34 L. R. A. 835. so United States v. City of Key West (C. C. A.) 78 Fed. 88. "It is not against justice or good con- science that a municipal corporation should be given power to pay, jn the only way it can pay, a debt which it had been given power to lawfully contract. The relator's judgment debt springs out of a contract which the judgment conclusively evidences the city had lawfully made with him. We therefore conclude that under the act of 1895, a special levy may be made by the city of Key West for payment of interest on its debt, and for sinking fund, to meet the principal of its debt, and that it is thus charged with the duty to pay the relator's judgment, which duty can be enforced by mandamus, the necessary substitute for an exe- cution in such cases." First Nat. Bank of Ceredo v. Society for Sav- ings (C. C. A.) 80 Fed. 581; People v. Rio Grande County Com'rs, 7 Colo. App. 229, 42 Pac. 1032; Ster- ling School Furniture Co. v. Harvey, 45 Iowa, 466; State v. Yellowstone County Com'rs, 12 Mont. 503; "Daw- son County v. Clark, 58 Neb. 756, 79 N. W. 822; Sandmeyer v. Harris, 7 Tex. Civ. App. 515, 27 S. W. 284; State v. City of Milwaukee, 25 Wis 122. 61 Iowa R. Land Co. v. Sac Coun- ty, 39 Iowa, 124; Sterling School Furniture Co. v. Harvey, 45 Iowa, 466. "The code provides that the amount levied for school house fund shall not exceed ten mills on the dollar. 1787 provides, 'when a judgment has been obtained against a school district the board of direc- tors shall pay off and satisfy the same from the proper fund, by an order on the treasurer.' It is claim- ed that authority is given under this section to levy a tax in addition to the ten mills. * * * It is a fundamental principle, appertaining to the taxing power, that no taxes can be levied without express au- thority of law. * * * The na- ture of the obligation against the district is not changed by being put in the form of a judgment. * * * The judgment order is, or should be, against the school house fund and can be paid from no other." But see the case of Daw- son County v. Clark, 58 Neb. 756, 79 N. W. 822, as holding to the con- trary. Youngerman v. Murphy, 107 Iowa, 686; Phelps v. Lodge, 60 Kan. 122, 55 Pac. 840. "See 224, ante; Jordan v. Cass 700 PUBLIC REVENUES. 3Q5b such accrues upon bonds issued as above or upon other and gen- eral interest bearing legal corporate indebtedness. 53 This rule in- cludes sinking fund provisions. 5 * County, 3 Dill. 185, Fed. Cas. No. Robertson v. Tillman, 39 S. C. 7,517. The owner of bonds can, by 298, 17 ri. E. 678; Wilson v. City mandamus, directed to the proper Council of Florence, 40 S. C. 426, 19 authorities, compel them to levy S. E. 4; City of Charlotte v. Shep- and collect the taxes authorized and ard, 122 N. C. 602, 29 S. E. 842; necessary for the payment of the City of Guthrie v. Ter., 1 Okl. 188, bonds. United States v: Town of 21 L. R. A. 841; Henderson v. Cicero, 41 Fed. 83; United States v. Hughes County, 13 S. D. 576, 83 N. Town of Cicero (C. C. A.) 50 Fed. W. 682. The presumption exists 147. A taxing district, however, that the tax levy is for the purpose cannot be compelled to levy taxes in of paying a valid obligation. Nalle excess of the amount as limited by v. City of Austin (Tex. Civ. App.) law. Town of Darlington v. Atlan- 21 S. W. 375; City of Austin v. tic Trust Co. (C. C. A.) 78 Fed. 596. Nalle, 85 Tex. 520, 22 S. W. 668. The payment of bonds which are a 53 United States v. Town of Cicero general corporate obligation cannot (C. C. A.) 50 Fed. 147; United States be limited to the proceeds of a spe- v. City of Key West (C. C. A.) 78 Fed. cial tax. 88; United States v. Village of Kent, First Nat. Bank of Ceredo v. So- 107 Fed. 190; Bowen v. West, 10 ciety for Savings (C. C. A.) 80 Fed. Colo. App. 322; City of Tampa v. 581; Security Sav. Bank & Trust Mugge, 40 Fla. 326, 24 So. 489. A Co. v. Hinton, 97 Cal. 214; Davis v. tax levy, however, cannot be made Brace, 82 111. 542. The authority to to pay interest on bonds authorized levy taxes sufficient to pay the an- but not yet issued. Mclntire v. nual interest on outstanding bonds Williamson, 8 Kan. 711, 54 Pac. 928; of the corporation is a continuing Louisville Sinking Fund Com'rs v. grant for such purpose until the Grainger, 98 Ky. 319, 32 S. W. 954; bonds have been paid. Denver City City of Charlotte v. Shepard, 122 N. R. Co. v. City of Denver, 2 Colo. C. 602; Corbett v. City of Portland, App. 34; Taylor v. McFadden, 84 31 Or. 407; Burnett Y. Maloney, 97 Iowa, 262; Board of Education of Tenn. 697, 34 'L. R. A. 541; Nalle v. Hawesville v. Louisville, H. & St. City of Austin (Tex. Civ. App.) 42 L. R. Co., 23 Ky. L. R. 376, 62 S. W. S. W. 780. Where the tax levy is 1125; Covington Gas Light Co. v. partly in excess of the amount lim- City of Covington, 92 Ky. 312; State ited by law, the excess only is void. v. Hannibal & St. J. R. Co., 101 Mo. Conklin v. City of El Paso (Tex. 136, 13 S. W. 505; Shackelton v. Civ. App.) 44 S. W. 79. A tax levy Town of Guttenberg, 39 N. J. Law. to pay interest on bonds is not void 660. The authority to levy taxes in because insufficient in amount, excess of the legal limit will not be City of Jefferson v. Marshall Nat. implied from a grant of authority to Bank, 18 Tex. Civ. App. 539, 46 S. contract debts beyond that amount. W. 97; Wright v. City of San An- 305d TAXATION. 701 (c) Obligatory payments on contracts. "Where legal authority exists to contract, unless some other mode for raising funds with which to meet the contract obligation is provided, the implied power exists for the levying and collection of taxes for the pay- ment of the debt which may be created through the carrying out of the contract. 55 (d) The payment of warrants and claims. The corporate power also exists to levy taxes for the payment of legal outstanding warrants, and properly established adverse claims. 56 tonio (Tex. Civ. App.) 50 S. W. 406; Shepard v. City of Kaysville, 16 Utah, 340. Keystone Lumber Co. v. Town of Bayfield, 94 Wis. 491, 69 N. W. 162. A tax is invalid levied to pay inter- est on bonds deposited in escrow and not yet delivered to the ulti- mate beneficiary. Bigelow v. Town of Washburn, 98 Wis. 553. A tax cannot be levied for the payment of interest, however, where there is as yet no legal obligation for its pay- ment. s* Burlington Water Co. v. Wood- ward, 49 Iowa, 58; Louisville Sink- ing Fund Com'rs v. Grainger, 98 Ky. 319; St. Louis County Com'rs v. Nettleton, 22 Minn. 356; Newark Aqueduct Board v. City of Newark, 50 N. J. Law, 126; Cummings v. Fitch, 40 Ohio St. 56. 55 Citizens' Sav. & Loan Ass'n v City of Topeka, 87 U. S. (20 Wall.) 655; Marks v. Purdue University 37 Ind. 155; McGuire v. Justices of Owsley County, 46 Ky. (7 B. Mon.) 340; Mayfield Woolen Mills v. City of Mayfield, 22 Ky. L. R. 1676, 61 S. W. 43; Burnham v. Rogers, 167 Mo. 17, 66 S. W. 970; School Dist. of Central City v. Chicago, B. & Q. R. Co., 60 Neb. 454, 83 N. W. 667; Johnston v. Cleaveland County Com'rs, 67 N. C. 101. Where there has been a failure to make a tax levy sufficient for the payment of interest upon outstanding bonds, the arrears cannot be paid by a levy of a rate sufficient to pay the whole. In re Borough of Millvale, 162 Pa. 374; State v. City of Milwaukee, 25 Wis. 122; McGillivray v. Joint School Dist., 112 Wis. 354, 88 N. W. 310, 58 L. R. A. 100. SG United States v. Macon County Justices & Treasurer, 75 Fed. 259; Flemming v. Trowsdale (C. C. A.) 85 Fed. 189; People v. Rio Grande County Com'rs, 11 Colo. App. 138, 52 Pac. 1133; Vincent v. Hinsdale County Com'rs, 12 Colo. 40, 54 Pac. 393. County officials have no pow- er to levy a tax for the payment of a claim until it has been reduced to judgment. West School Dist. of Canton v. Merrills, 12 Conn. 437; Sleight v. People, 74 111. 47. The levy of taxes for the payment of a bond which has not been established as a lawful indebtedness against the corporation cannot be sustained as being a proper corporate purpose. Fuller v. Heath, 89 111. 296; First Nat. Bank of Garden City v. Mor- ton County Com'rs, 7 Kan. App. 739, 52 Pac. 580; Auditor v. School Trus- tees of Frankfort, 81 Ky. 680; Vose v. Inhabitants of Frankfort, 64 Me. 229; Wisner v. Davenport, 5 Mich. 501; State v. Clay County, 46 Mo. 231; Bigelow v. Town of Washburn, 702 PUBLIC REVENUES. 306 306. Taxation for the support of public schools. The support and maintenance of public schools is one of those purposes as to the public character of which there is no ques- tion, and, therefore, within the limits provided by law, the public corporation has the power to levy taxes for the support of a school system of the scope and efficiency commensurate and pro- portionate to the size and ability of the corporation. 57 The au- thority for this purpose must in common with the exercise of the power be found in some provision of statutory or constitu- tional law and must be exercised by the organization and in the manner designated whether such organization be a municipal corporation proper or a subordinate quasi one such as a school 98 Wis. 553, 74 N. W. 362. The validity of such claims will be pre- sumed in the absence of contradict- ing evidence. " Francis v. Southern R. Co., 124 Ala. 544, 27 So. 22; Horton v. Mo- bile School Com'rs, 43 Ala. 598; Jones v. State, 17 Fla. 411. A statu- tory provision that commissioners may levy a tax for school purposes is mandatory. Ayers v. McCalla, 95 Ga. 555; Marks v. Purdue Univer- sity, 37 Ind. 155; Nelson v. Town of Homer, 48 La. Ann. 258; Newman T. Thompson, 9 Ky. L. R. 199, 4 S. W. 341. The teaching of Latin and Grreek in a common school does not lustify an injunction to restrain the sollection of taxes levied for the lupport of such school. Cooley, Taxation, 119 et seq. Perry v. Brown, 21 Ky. 344, 51 S. W. 457. Constitutional limitations on tax rates apply to common school dis- tricts. State v. City of New Orleans, 23 La. Ann. 358; State v. Graham, 25 La. Ann. 440. Neither appropria- tions of public moneys can be made nor taxes imposed for the support f an institution of learning which ,s not within the constitutional meaning a public institution. Such an institution is one controlled by the state through its agents and in which the state has a permanent in- terest. Gushing v. Inhabitants of Newburyport, 51 Mass. (10 Mete.) 508; State v. Hannibal & St. J. R. Co., 135 Mo. 618; State v. Vaughan, 99 Mo. 332, 12 S. W. 507; Piper v. Moulton, 72 Me. 155; State v. City of Omaha, 39 Neb. 745, 58 N. W. 442; Board of Education of Elizabeth v. Sheridan, 42 N. J. Law, 64; Reid v. Wiley, 46 N. J. Law, 473. Holt v. Town of Antrim, 64 N. H. 284, 9 Atl. 389. Taxes cannot be levied for the construction of a school building to be leased to a cor- poration for school purposes. The test of a public use is not the right of enjoying the property wholly at the public expense but a common right free from discrimination. Com. v. Shaw, 96 Pa. 268; Kerr v. Woolley, 3 Utah, 456; Grand Island & N. W. R. Co. v. Baker, 6 Wyo. 369, 34 L. R. A. 835; Curtis' Adm'r v. Whipple, 24 Wis. 350. An act authorizing the levy of a tax for the benefit of a private educational in- stitution is invalid. 306 TAXATION. 703 district. 58 Subordinate governmental agencies are usually con- sidered, in this respect, political or municipal organizations pos- sessing the power to levy taxes for school purposes as coming within the grant of a general power of taxation for local or com- munity purposes. 59 ss Cairo & F. R. Co. v. Parks, 32 purposes. Board of Education of Ark. 131; Worthen v. Badgett, 3*2 Bladen County v. Bladen County Ark. 496; Shaw v. Lockett, 14 Colo. Com'rs, 111 N. C. 578; School Dist. App. 413, 60 Pac. 363; State v. of Erie v. Smith, 195 Pa. 515; L'Engle, 40 Fla. 392, 24 So. 539; Mitchell v. Fox, 73 Tenn. (5 Lea) Richards v. Lyon County Sup'rs, 69 420; Werner v. City of Galveston Iowa, 612; Wood v. Farmer, 69 (Tex.) 7 S. W. 726; Muller v. City Iowa, 533; State v. Addis, 59 Kan. of Denison (Tex. Civ. App.) 21 S. 762, 54 Pac. 1065; Marion & M. R. W. 391, following Lufkin v. City of R. Co. v. Alexander, 63 Kan. 72, 64 Galveston, 63 Tex. 438; Kinney v. Pac. 978; Marshall v. Donovan, 73 Zimpleman, 36 Tex. 554; Willis v. Ky. (10 Bush) 681; Tate v. Board Owen, 43 Tex. 41; City of El Paso of Trustees of Erlanger School Dist., v. Conklin, 91 Tex. 537, 44 S. W. 20 Ky. L. R. 1370, 49 S. W. 337; 988; City of Ft. Worth v. Davis, 57 Common School Dist. v. Garvey, 80 Tex. 225; Robertson v. Preston, 97 Ky. 159. A mere irregularity does Va. 296, 33 S. E. 618; Washington "not void a school tax properly vot- County Sup'rs v. Saltville Land Co., ed." 99 Va. 640, 39 S. E. 704. State v. Board of Liquidation, 29 69 Horton v. Mobile School Com'rs, La. Ann. 77; Nelson v. Town of 43 Ala. 598; Opinion of the Justices, Homer, 48 La. Ann. 258. A mu- 67 Me. 582; Shepardson v. Gil- nicipal corporation cannot, under lett, 133 Ind. 125, 31 N. E. 788; its general welfare clause, levy a Elkin v. Deshler, 25 N. J. Law, tax for school purposes. Stuart v. (1 Dutch.) 177; Landis v. Ash- School Dist. No. 1, 30 Mich. 69; worth, 57 N. J. Law, 509, 31 Atl. Weston Lumber Co. v. Munising Tp., 1017. "The tax Is assailed upon 123 Mich. 138, 82 N. W. 267; Cur- the ground that a school district is ryer v. Merrill, 25 Minn. 1; Put- not a political division of the state nam v. City of St. Paul, 75 Minn, possessing powers of local govern- 514, 78 N. W. 90; State v. Missouri ment, and, therefore, taxes for pub- Pac. R. Co. (Mo.) 6 S. W. 862; In re lie purposes cannot be levied exclu- Powers, 52 Mo. 218; State v. City of sively upon the persons and proper- Omaha, 7 Neb. 267; Lee v. School ty within it. This contention seems Dist. No. i, 36 N. J. Eq. (9 Stew.) to us not well founded. School 581; People v. Allen, 42 N. Y. 404; districts are formed for the purpose Rigsbee v. Town of Durham, 99 N. of aiding in the exercise of that C. 341, 6 S. E. 64. governmental function which re- Lane v. btanly, 65 N. C. 153. lates to the education of children. Townships in North Carolina have and to that end the legal voters of no power, either constitutional or each district are intrusted with spe- statutory, to levy a tax for school cine powers of local government and 704 PUBLIC REVENUES. 307 307. School taxes; amount required. The amount or rate which school authorities may levy for edu- cational purposes must come within the common limit pre- scribed by law 00 if in excess of that limit, the proceedings and tax usually will be invalid only as to the excess. 61 The authority for the levy of the tax may use general language and the question can then be raised whether certain uses or purposes come within the meaning of such general language. The language usually, employed is the phrase "school purposes.' 1 The purchase and maintenance of a library for the use of the school does not ordinarily come within its meaning. 62 the trustees whom they elect are made a body corporate to represent the district and its inhabitants. These characteristics mark them as political organizations." Lydecker v. Englewood Tp. Com'rs, 41 N. J. Law, 154; State v. Bremond, 38 Tex. 116. eo United States v. Independent School Dist., 20 Fed. 294. Manda- mus will lie to compel the levying of the full amount provided by law if necessary. Griggs v. St. Croix County, 27 Fed. 333; Smith v. Speed, 50 Ala. 276; People v. City of Bloomington, 130 111. 406; St. Louis, R. I. & C. R. Co. v. People, 177 111. 78. Under Kurd's Rev. St., c. 122, art. 8, 1, the amount required for school purposes can be separate- ly stated, but the provision is man- datory. Shepardson v. Gillette, 133 Ind. 125, 31 N. E. 788; State v. Ewing, 22 Kan. 708; Glass v. Bill- ings, 59 Kan. 776, 53 Pac. 125; Clark v. Deveraux, 8 Kan. App. 341, 57 Pac. 40. When within the limit fix- ed by law, the court will not, ordi- narily, interfere with the levy of a certain rate or arbitrarily hold that it is oppressive or illegal. Marion & M. R. Co. v. Alexander, 63 Kan. 72, 64 Pac. 978; Collins v. Henderson, 74 Ky. (11 Bush) 74; Board of Edu- cation v. General Council of Coving- ton. 20 Ky. L. R. 289, 45 S. W. 1045; Brown v. Board of Education of Newport, 22 Ky. 483, 57 S. W. 612; Board of County School Com'rs v. Gantt (Md.) 21 Atl. 548; Alvord v. Collin, 37 Mass. (20 Pick.) 418; Cowart v. Taxworth, 67 Miss. 322, 7 So. 350; State v. Phipps, 148 Mo. 31, 49 S. W. 865; Kansas City, Ft. S. & M. R. Co. v. Chapin, 162 Mo. 409, 62 S. W. 1000; State v. St. Louis, K. C. & N. R. Co., 75 Mo. 526; Hil- burn v. St. Paul, M. & M. R. Co., 23 Mont. 229; Dawson County v. Clark, 58 Neb. 756; Hall v. Selectmen of Somersworth, 39 N. H. 511; Jodon v. City of Brenham, 57 Tex. 655; Winifrede Coal Co. v. Board of Edu- cation of Cabin Creek, 47 W. Va. 132, 34 S. E. 776; State v. Lamont, 86 Wis. 563. ei Chicago & A. R. Co. v. People, 147 111. 196; Chicago & A. R. Co. v. People, 155 111. 276; Wabash R. Co. v. People, 187 111. 289. 2 Taylor v. Wayne Dist. Tp.. 25 Iowa, 448; Manning v. Van Buren Dist. Tp., 28 Iowa, 332. Where the law requires a vote of the electors, an indebtedness cannot be incurred by the school directors before a tax 307 TAXATION. 705 A tax for "heating and repairing purposes" has been held a tax for school and not for building purposes. 63 The construction of new buildings is not ordinarily a "school purpose" but there must be special authority given for such use of public moneys or the levy of taxes for this purpose. 64 The for that purpose has been voted. The court say: "Section seven, paragraph five, empowers the elec- tors, when assembled in district township meeting, to vote a tax for certain purposes, among others 'for the payment of any debts contracted for the erection of school houses, and for procuring district libraries and apparatus for the schools.' This section contemplates that a tax may be levied for the purchase of apparatus. It is not authority for the purchase of apparatus before the tax is voted, thus authorizing the creation of an indebtedness to be paid by a tax afterward to be voted. * * * It contemplates that contracts may be made by the proper officers for the purchase of apparatus, after a tax has been voted for that purpose. This is made plain by section twenty which provides that the directors shall make all contracts, purchases and payments necessary to carry out any vote of the district. We find no provision clothing them with power to make contracts or pur- chases of school apparatus other- wise than as is provided in this sec- tion. It is obvious, therefore, that no such contract can be made by them unless authorized by a vote of the electors." Board of Education of Covington v. Board of Trustees, 24 Ky. L. R. 98, 68 S. W. 10. es Elberg v. San Luis Obispo Coun- ty, 112 Cal. 316; Chicago & A. R. Co. v. People, 155 111. 276; State v. Folk, 45 S. C. 491; Board of Education of Ogden v. Brown, 12 Utah, 251, con- struing such statutes in general. e* Knopf v. People, 185 111. 20, 57 N. E. 22; O'Day v. People, 171 111. 293; Greenwood v. Gmelich, 175 I1L 526; Cleveland, C., C. & St. L. R. Co. v. Randle, 183 111. 364; Chicago & N. W. R. Co. v. People, 184 111. 240; Rose v. Hindman, 36 Iowa, 160; Seaman v. Baughman, 82 Iowa, 216, 47 N. W. 1091, 11 L. R. A. 354; Hibbs T. Directors & Secretary of Adams Tp., 110 Iowa, 306, 81 N. W. 584, 48 L. R. A. 535. A vote to levy a schoolhouse tax may be re- scinded at a subsequent election when the tax has not been certified nor levied by the proper officers. Marble v. McKenney, 60 Me. 332. A school house cannot be erected upon a lot other than that legally designated by the municipal officers of the town. If this is done, it will render a tax levied for such pur- pose illegal. Carlton v. Newman, 77 Me. 408. School officers are limited in their expenditures to the amount furnished by a vote of the electors. State v. West Duluth Land Co., 75 Minn. 456, 78 N. W. 115; State v. Wabash, St. L. & P. R. Co., 83 Mo. 395. Under Rev. St. 6880, taxes for "school purposes" cannot be levied for building school houses or for paying indebtedness. Eiken- bary v. Porter, 60 Neb. 75; State v. Westerfield, 24 Nev. 29; Lee v. Trus- tees of School Dist. No. 1, 36 N. J. Eq. (9 Stew.) 581; Gale v. Mead, 4 Hill (N. Y.) 109; Stevens v. Kent, 26 Vt. 503. Abb. Corp. 45. 706 PUBLIC REVENUES. 308 term is usually inclusive of all those expenditures which come within the phrase "current expenses." The payment of teach- ers, the purchase of supplies, the payment of the salaries of em- ployes and the maintenance of the school organization. 65 308. Diversion of funds. Taxes as ordinarily levied throughout the country include spe- cific rates or amounts for specific purposes. It is a well recog- nized principle that money raised in this manner when diverted from such use and diverted to another will not be then lost for the benefit of that special purpose for which levied. The cor- poration will still be liable for the expenditure of the specific amount for such purpose. 6 * B Board of Education of Wood- land v. Board of Trustees, 129 Cal. 599, 62 Pac. 173. A grant of author- ity to levy a special tax "sufficient in amount to maintain a high school" vests the board of trustees with an undisputed discretion as to the rate of tax to be levied. Richards v. Raymond, 92 111. 612; Newman v. Thompson, 9 Ky. L. R. 199, 4 S. W. 341; Gushing v. Inhab- itants of Newburyport, 51 Mass. (10 Mete.) 508. The fact that branches of learning other than those requir- ed by the revised statutes are taught in a school does not deprive it of its character as a town school to be supported by public taxation. Putnam v. City of St. Paul, 75 Minn. 514, 78 N. W. 90. An appro- priation for the payment of salaries does not become a trust fund for the sole use and benefit of teachers already appointed. Rodman v. Town of Washington, 122 N. C. 39, 30 S. E. 118. Under Const, art. 2, 14, and art. 7, 7, a school tax is not a "necessary expense" of a town. Wheeler v. Town of Alton, 68 N. H. 477, 38 Atl. 208. Maenhaut v. City of New Or- leans, 2 Woods, 108, Fed. Gas. No. 8,939, and Ranger v. City of New Orleans, 2 Woods, 128, Fed. Cas. No. 11,564, hold that where a municipal corporation is authorized to levy a tax to pay the interest on an issue of bonds, the money collected and set apart for such purpose is a trust fund for the payment of such inter- est and the corporation can be re- strained from using it for other pur- poses. Vickrey v. Sioux City, 104 Fed. 164; Lee County v. Robertson, 66 Ark. 82, 48 S. W. 901; Yankton County v. Faulk, 1 Dak. 348; Town of Aurora v. Chicago, B. & Q. R. Co., 119 111. 246, 10 N. E. 27. If the use for which the tax is raised is subse- quently held unlawful, this fund cannot be appropriated to other pur- poses. President & Trustees of Rushville v. Town of Rushville, 32 111. App. 320; Pennington v. Coe, 57 111. 118; Toledo, St. L. & K. C. R. Co. v. Stephenson, 131 Ind. 203, 30 N. E. 1082; Hickman College v. Colored Common School Dist. A, 111 Ky. 944, 65 S. W. 20; Board of Educa- tion of Covington v. Trustees of 309 TAXATION. 309. The construction of roads. 707 The construction, maintenance or repair of public highways is considered such a purpose as will authorize without question the levy and collection of road tax moneys. 67 The general prin- ciples requiring uniformity and equality of operation apply equally to laws imposing road taxes 68 which must also be levied in the manner and by the board provided by law. 69 The rate or Public Library, 113 Ky. 234, 68 S. W. 10; State v. City of New Orleans, 106 La. 469, i.1 So. 55; Parish Board of School Directors v. City of Shreveport, 47 La. Ann. 21; Port Huron Board of Education v. Run- nels, 57 Mich. 46; State v. Stone, 69 Miss. 375, 11 So. 4; School Dist. No. 1 v. Rhoads, 81 Mo. 473; Zimmerman v. State, 60 Neb. 633, 83 N. W. 919; School Dist. of Lincoln v. Fiske, 61 Neb. 3, 84 N. W. 401; State v. Storey County Com'rs, 17 Nev. 96; City of Hoboken v. Ivison, 29 N. J. Law (5 Dutch.) 65; Board of Education of Plainfield v. Sheridan, 45 N. J. Law, 276; Board of Education of East Las Vegas v. Tafoya, 6 N. M. 292, 27 Pac. 616; City of Greensboro v. Hodgin, 106 N. C. 182; State v. Marietta & N. G. R. Co., 108 N. C. 24. People v. George, 60 Hun, 580, 14 N. Y. Supp. 475. See this case, however, for the effect of a change of organization upon the rule stated in the text. Oregon City v. Moore, 30 Or. 215, 46 Pac. 1017, 47 Pac. 851; German Tp. School Dist. v. Sangs- ton, 74 Pa. 454; School Districts v. Edwards, 46 Wis. 150; State v. De Lano, 80 Wis. 259. 67 People v. Whyler, 41 Cal. 351; San Luis Obispo County v. White, 91 Cal. 432. A bridge, as defined by the Political Code, 2618, is a high- way and a tax can be levied on the property within the road district for its construction. Commissioners of Highways of Goshen v. Jackson, 165 111. 17; Stone v. Woodbury County, 51 Iowa, 522; Hoffman v. Lynburn, 104 Mich. 494; Herring v. Dixon, 122 N. C. 420, 29 S. E. 368; State v. Hay- wood County Com'rs, 122 N. C. 812, 30 S. E. 352; Osborne v. Mecklen- burg County Com'rs, 82 N. C. 400; Thompson v." Fellows, 21 N. H. (1 Fost.) 425; Bradford v. Newport, 42 N. H. 338; Warder v. Clark Coun- ty Com'rs, 38 Ohio St. 639; Miller v. Hixson, 64 Ohio St. 39, 59 N. E. 749; City of Philadelphia v. Field, 58 Pa. 320. Construction of free bridge authorized. Com. v. Reiter, 78 Pa. 161; Smith v. Grayson Coun- ty, 18 Tex. Civ. App. 153, 44 S. W. 921. Cooley, Taxation, p. 130. 68 West School Dist. v. Merrills, 12 Conn. 437; Haney v. Bartow County Com'rs, 91 Ga. 770; Lima v. McBride, 34 Ohio St. 338; Adams v. Hyde, 27 Vt. 221. 6 Chicago & N. W. R. Co. v. Peo- ple, 193 111. 594; Kansas City, Ft. S. & G. R. Co. v. Scammon, 45 Kan. 481, 25 Pac. 858; Hudson v. Police Jury of Claiborne, 107 La. 387, 31 So. 868; Parsons v. Inhabitants of Go- shen, 28 Mass. (11 Pick.) 396; Stet- son v. Kempton, 13 Mass. 272; Bur- lington & M. R. R. Co. v. Lancaster County Com'rs, 12 Neb. 324; Hunter v. Justices of Campbell County, 47 Tenn. (7 Cold.) 49. 708 PUBLIC REVENUES. 308 amount to be raised for this special purpose may be limited. 70 If one is levied or raised in excess of this, the same principle is ap- 70 C. N. Nelson Lumber Co. v. Town of Loraine, 24 Fed. 456; Peo- ple v. Wilson, 3 111. App. 368. The term "road purposes" as used in Rev. St. c. 121, is a general phrase and includes expenditures for the payment of damages arising from opening and laying out roads, the purchase of materials and road ma- chinery. Peoria & P. U. R. Co. v. People, 144 111. 458, 33 N. E. 873; Chicago & A. R. Co. v. People, 190 111. 20; Gosnell v. City of Louisville, 20 Ky. L. R. 519, 46 S. W. 722. The pre- sumption, exists that the tax levy for road purposes is within the con- stitutional limit. Ada Tp. v. Grove, 114 Mich. 77, 72 N. W. 35; State v. Kansas City, St. J. & C. B. R. Co., 145 Mo. 596. Road taxes are county taxes within the constitution, art. 10, 11, limiting the rate of taxation levied for such purposes. Libby v. State, 59 Neb. 264; Norcross v. Veal, 51 N. J. Law, 87, 16 Atl. 159; Herring v. Dixon, 12i; N. C. 420, 29 S. E. 368; Southern R. Co. v. Kay, 62 S. C. 28; Jefferson Iron Co. v. Hart, 18 Tex. Civ. App. 525, 45 S. W. 321; Bertha Zinc Co. v. Pulaski County Sup'rs, 88 Va. 371. Kane v. School Dist, 52 Wis. 502; \vebster v. Douglas County, 102 Wis. 181, 77 N. W. 885, 78 N. W. 451. 'The crucial question in this case is whether the county could legally spend more than $8,000 in one fiscal year upon highways under the pro- visions of section 1308, Rev. St. 1878. This section, after providing that county boards may adopt high- ways or parts of highways as county roads, or may designate highways or parts of highways for the purpose of spending money in their repair without adopting them as county roads, then provides that any coun- ty board 'may annually levy, on the taxable property of the county, a county road tax not exceeding eight thousand dollars which shall be ex- pended under their direction in mailing culverts, grading, graveling, ditching or otherwise improving such highways.' It seems very manifest to us from a careful read- ing of the section that the amount of the tax fixes the amount which may be expended in any one year. The amount is plainly limited to the amount previously raised by the tax. The board may first raise a sum and then spend it. * * * In the present case, the board raised $8,000 by tax levied in November, 1893, and spent the entire sum be- fore the 5th of June, 1894. Then they proposed to spend $8,000 more and pay for the work temporarily out of the normal school fund, and finally out of the levy to be made in November, 1894. This they had no power nor right to do. They, however, proceeded not in the man- ner required by section 1309 but in a lawless and irregular manner to parcel out $2,000 to each of the chairmen of the four county towns, and to allow each chairman to spend his portion as he chose. To say that this entire proceeding was irregular and illegal is to speak of it very mildly. * * * The tem- porary injunctional order, in no un- certain terms, prevented the board from carrying out the work which had been illegally commenced un- 309 TAXATION. 709 plied as in the cases of a similar nature and the proceedings will be held invalid only as to the excess. 71 The construction and maintenance of highways must be distinguished from the making of a "local improvement" so called. The cost of local improve- ments is usually met by local assessments which, as to the basis of levy and collection, differ radically from taxes. 72 The legality of der the resolution of June 5th. * * * The plain fact is that the acts of the public officials and con- tractors, after the injunctional or- der of August 7 was issued and serv- ed upon them, in proceeding with general road work, and in issuing orders to pay for the work and in actually paying for a good part of it, were and are utterly indefensi- ble. They were deliberate con- tempts of court." Overruling Har- rison v. Milwaukee County Sup'rs, 51 Wis. 645. See, also, Mueller v. Town of Cavour, 107 Wis. 599, 83 N. W. 944; Frederick v. Douglas Coun- ty, 96 Wis. 411. 71 Peninsular Sav. Bank v.- Ward, 118 Mich. 87, 76 N. W. 161, 79 N. W. 911. The excess for the purpose of sustaining its validity will not be considered as having been levied for a separate purpose. The court say: "The statute restricts the labor to one half day on $100 valuation and the money tax to fifty cents upon such valuation. Section 1327 pro- vides that a majority of the electors present may determine the amount of labor and money tax within these bounds. As has been seen, the elec- tors voted a money tax of one per- cent for highway purposes. It is urged that this was no more than it was within their power to raise, and that one-half of it should be treated as a vote of highway labor, and the remainder a money tax in which case neither would be exces- sive. The record shows that the en- tire amount was spread and if we might assume that no labor was done or commuted, which is improb- able, we should still be confronted by the fact that the vote shows that the electors directed that amount to be spread upon the roll. We cannot conclude therefore, that any part of it was intended as a vote of highway labor. It is also sug- gested that we may assume that a part of the amount spread was a tax authorized by the board of super- visors but we think in view of the vote of the township, that the pre- sumption is to the contrary." 72 Barrow v. Hepler, 34 La. Ann. 362; Rogers v. City of St. Paul, 22 Minn. 494-507. "By common usage, especially as evidenced by the prac- tice of courts and text writers, the term 'local improvements' is em- ployed as signifying improvements made in a particular locality, by which the real property adjoining or near such locality is specially benefited. * * * An examination of these authorities will also show that the term 'local improvements' or terms synonymous, are more commonly applied to the grading, curbing and paving of streets than to any other class of improvements. Our constitution is to be presumed to have employed the term 'local improvements' in the sense which is thus attributed to it by common usage." State v. Reis, 38 Minn. 371; Sperry v. Flygare, 80 Minn. 325, 49 L. R. A. 710 PUBLIC REVENUES. 310 a local assessment is based upon the doctrine that the improve- ment will result in a local and special advantage to specific prop- erty, which should, therefore, pay the cost of such improvement, benefit or advantage. The community at large receiving no special benefit should not be required to pay its cost. The sub- ject of local assessments will be considered later in this chapter. 78 The levy of taxes for the establishment or maintenance of plants for the supply of water and light. 310. The purposes, namely, a supply of water 74 and light, 75 indi- 757. A rural highway is not a local improvement and local assessments cannot, therefore, be imposed on abutting property to pay for its con- struction or improvement. The court say: "Damages for laying out such roads [rural highways] have been paid from the public treasury, and at no time have farm lands been assessed therefor, any further than in assessing damages, benefits to the land through which the highway passes have been deducted from the amount awarded to the landowner. But benefits accruing to the public generally have never been considered or allowed in reduction of individ- ual damages. Until the passage of this act a rural highway was not understood to come within the meaning or to constitute a local im- provement and if sustained it will completely change the method here- tofore in existence and employed for laying out and establishing such road. The term 'local improve- ments' has been most generally used and employed in reference to im- provements by municipal corpora- tions proper, rather than to coun- ties and towns, which are only quasi municipal corporations." " Chapter VII, subd. II. 337 et seq. City of Cleveland v. United States, 111 Fed. 341. To furnish a sufficient supply of water and light for public uses does not require an express grant of the power of taxa- tion for these purposes. Holt v. City of Birmingham, 111 Ala. 369; Bowen v. West, 10 Colo. App. 322, 50 Pac. 1085; Frederick v. City Council of Augusta, 5 Ga. 561. The rule ap- plied to the right of a municipal corporation to construct a canal for the purpose of securing a supply of water for public use where the city council was vested with "full power and authority to make such assess- ments on the inhabitants of the city or those who hold taxable property within the same for the safety, ben- efit, convenience and advantage of the said city as shall appear to them expedient." Taylor v. McFadden, 84 Iowa, 262. "Appellant's further contention is that municipal corporations have no authority to levy taxes except as expressly conferred by statute and tuat no authority is given to levy a special tax for the erection of wa- terworks. In Jeffries v. Lawrence, 42 Iowa, 505, it is said: 'The doc- trine everywhere prevails that no taxes can be levied by municipal cor- porations in the absence of author- 310 TAXATION. 711 cated in the title of this section, have been repeatedly held of such a character as to warrant not only the expenditure of public money but the levy of taxes for such purpose. Public corpora- tions may for these purposes incur indebtedness, expend moneys ity conferred by the state, if not in terms yet by plain and unmis- takable implication.' We think the authority given to such corporations to erect waterworks, by plain and unmistakable implication, carries with it the power to levy a tax for that purpose, provided such levy does not exceed the limitation." Youngerman v. Murphy, 107 Iowa, 686, 76 N. W. 648; Hines v. City of Leaven worth, 3 Kan. 186; Manley v. Emlen, 46 Kan. 655; Waters v. Town of Laurel, 93 Md. 221, 48 Atl. 499; People v. Mahaney, 13 Mich. 481; Monroe Water Co. v. Heath, 115 Mich. 277, 73 N. W. 234. State v. City of Kearney, 49 Neb. 325. An act authorizing the levy of taxes for a supply of water cannot impair or affect the obligation of any pre-existing contract. The pow- er of taxation existing for the pur- pose of meeting a contract obliga- tion has been repeatedly held a con- tract right which cannot be impair- ed by the passage of subsequent legislation. Brown v. City of Con- cord, 56 N. H. 375; Van Giesen v. Inhabitants of Bloomfield, 47 N. J. Law, 442; Hackensack Water Co. v. City of Hoboken, 51 N. J. Law, 220; Conger v. Inhabitants of Summit Tp., 52 N. J. Law, 483; Johnson v. Borough of Asbury, 58 N. J. Law, 604; Raton Waterworks Co. v. Town of Raton, 9 N. M. 70, 49 Pac. 898. The right of taxation for such a purpose, however, is limited to that authorized by law. Bank of Rome v. Village of Rome, 18 N. Y. 38; People v. Common Council of Long Island City, 76 N. Y. 20; Thrift v. Commissioners of Town of Eliza- beth City, 122 N. C. 31, 30 S. E. 349, 44 L. R. A. 427. City of Charlotte v. Shepard, 120 N. C. 411. The construction of city waterworks, however, is not a "necessary expense" within the con- stitution of North Carolina, art. 7, 7, which provides that a tax ex- cept for necessary city expenses cannot be levied except upon a vote of a majority of its qualified elec- tors. See, also, as holding the same, Thrift v. Commissioners of Town of Elizabeth City, 122 N. C. 31, 30 S. E. 349, 44 L. R. A. 427, and Edgerton v. Goldsboro Water Co., 126 N. C. 93, 35 S. E. 243. Hill v. Higdon, 5 Ohio St. 243; Maloy v. City of Marietta, 11 Ohio St. 636; Stiles v. Jones, 3 Yeates (Pa.) 491; City of Allentown v. Henry, 73 Pa. 404; Van Sicklen v. Town of Burlington, 27 Vt. 70; Gay v. City of New Whatcom, 26 Wash. 389, 67 Pac. 88; Foster v. City of Kenosha, 12 Wis. 616; Dean v. Borchsenius, 30 Wis. 236; Oconto City Water Supply Co. v. City of Oconto, 105 Wis. 76. "s Stewart v. Kansas Town Co., 50 Kan. 553; Hequembourg v. City of Dunkirk, 49 Hun, 550, 2 N. Y. Supp. 447; In re Village of Le Roy, 35 App. Div. 177, 55 N. Y. Supp. 149; State v. City of Toledo, 48 Ohio St. 112, 26 N. E. 1061, 11 L. R. A. 729; Western Sav. Fund Soc. v. City of Philadelphia, 31 Pa. 175. 712 PUBLIC REVENUES. 311 already raised or provide for the future expenditure of moneys by the levy of taxes. 311. The exercise of the power. A public corporation or the sovereign itself can levy taxes only upon the persons and property within its jurisdiction. A per- sonal tax upon nonresidents or upon their personal property is incapable of enforcement; 76 neither can a public corporation levy a tax upon real property lying beyond the corporate limits. 77 The converse of the rule thus stated is unquestionably true and all persons or property within the limits of a taxing district are 'City of St. Louis v. Wiggins Ferry Co., 78 U. S. (11 Wall.) 423; In re Mahoney's Estate, 133 Cal. 180, 65 Pac. 389. The rule, however, does not apply to an inheritance tax. Nonresident beneficiaries are sub- ject to the tax to an equal extent with those residing within the limits of a taxing district. City of Au- gusta v. Dunbar, 50 Ga. 387; City of New Albany v. Meekin, 3 Ind. 481; Johnson v. City of Lexington, 53 Ky. (14 B. Mon.) 521; Louisville Bridge Co. v. City of Louisville, 81 Ky. 189; City of St. Joseph v. Sa- ville, 39 Mo. 460; Moore v. Town of Fayetteville, 80 N. C. 154; Shriver v. ,City of Pittsburg, 66 Pa. 446. " Shaw v. Lockett, 14 Colo. App. 413, 60 Pac. 363; Wilkey v. City of Pekin, 19 111. 160; Large v. Wash- ington Dist. Tp., 53 Iowa, 663; Trigg v. Trustees of Glasgow, 65 Ky. (2 Bush) 594; Chicago, B. & Q. R. Co. v. Cass County, 51 Neb. 369, 70 N. W. 955; Wells v. City of Weston, 22 Mo. 384; Deason v. Dixon, 54 Miss. 585; Chicago, B. & Q. R. Co. v. Cass County, 51 Neb. 369; Chicago, B. & Q. R. Co. v. Nebraska City, 53 Neb. 453. Sioux City Bridge Co. v. Dakota County, 61 Neb. 75, 84 N. W. 607. In this case the court epitomizes the law as follows: First, "A village cannot levy a tax on property the situs of which is not within the cor- porate limits." Second, "A tax levied on a whole property part of which is within and part without the territorial limits of the body imposing the same is invalid as to that part levied on the portion with- out the jurisdiction which renders the whole assessment void, unless the tax assessed against the part within the jurisdiction of the taxing body can readily be separated from the portion without it." Third, "A property owner is not required to appear before a taxing board in op- position to the assessment of a tax on property whose situs is not with- in the jurisdiction of such board." Fourth, "Where an assessment is wholly void, no tender of any sum is necessary to relief against the tax." Allen v. Bidwell, 68 N. H. 245; Piper v. Singer, 4 Serg. & R. (Pa.) 354; Arthur v. School Dist. of Polk Borough, 164 Pa. 410; State v. City of Columbia, 27 S. C. 137; Neale v. Wood County Ct., 43 W. Va. 90, 27 S. E. 370. 311 TAXATION. 713 subject to the taxes which it may impose. 78 \Vhere persons or property are within the jurisdiction of different corporations, the limits of which are wholly or partially co-extensive with each other, they may be subject to the levy of taxes for the same or a different purpose by each of such corporate organizations. 79 To illustrate, property within the limits of a city, taxed by it for city school purposes, may be also taxed for similar county purposes by the county organization including such municipality. The authorities hold that the burden of proof is upon the organi- se Alexander v. Town of Alexan- dria, 5 Cranch (U. S.) 1; Jones v. City of Columbus, 25 Ga. 610; Cut- liff v. City of Albany, 60 Ga. 597. A constitutional provision "That all taxation shall be uniform upon the same class of subjects * * * within the territorial limits of the authority levying the tax" does not preclude a municipal corporation from taxing one business and not another. Dunleith v. Reynolds, 53 111. 45; Raymond v. Hartford Fire Ins. Co., 196 111. 329; Toledo & W. R. Co. v. City of Lafayette, 22 Ind. 262; Til- ford v. Douglass, 41 Ind. 580; By- ram v. Marion County Com'rs, 145 Ind. 240, 44 N. E. 357, 33 L. R. A. 476; Hines v. City of Leavenworth, 3 Kan. 186; Henderson Bridge Co. v. City of Henderson, 90 Ky. 498, 14 S. W. 493; Specht v. City of Louis- ville, 22 Ky. L. R. 699, 58 S. W. 607; Richardson v. Boske, 23 Ky. L. R. 1209, 64 S. W. 919; Adams v. City of Greenville, 77 Miss. 881. The authority to tax, as a rule, gives no power to impose taxes not levied during previous years. City of St. Joseph v. Hannibal & St. J. R. Co., 39 Mo. 476; Cobb v. Elizabeth City, 75 N. C. 1. Municipal taxes to com- ply with the constitutional provision requiring uniformity should be lev- ied upon all property within the city not exempt. Western Union Tel. Co. v. City of Richmond, 26 Grat. (Va.) 1. A cor- poration is a person within the meaning of laws providing for the levy of taxes. Newport News & O. P. R. & Elec. Co. v. City of Newport News, 100 Va. 157, 40 S. E. 645. 7 Martin v. Aston, 60 Cal. 63. But county officers cannot levy taxes for road purposes upon property within the limits of the city whose authorities have the power to levy taxes for the maintenance of Its streets and alleys. People v. Knopf, 171 111. 191; Jackson Tp. v. Wood, 55 Kan. 628, 40 Pac. 897; Ryerson v. Laketon Tp., 52 Mich. 509; Cham- bers v. Adair, 23 Ky. L. R. 373, 62 S. W. 1128; Bordeaux v. Meridian Land & Industrial Co., 67 Miss. 304, 7 So. 286; Sargent v. Inhabitants of Milo, 90 Me. 374, 38 Atl. 341; Wheel- er v. Town of Alton, 68 N. H. 477, 38 Atl. 208. Taxes cannot be levied upon property in a town for the sup- port of district school teachers. Bertha Zinc Co. v. Pulaski County Sup'rs, 88 Va. 371. The rule, how- ever, does not apply where the juris- diction of the two districts is not co-extensive. But see, however, to the contrary, Kerlin v. Reynolds, 142 Ind. 460, 36 N. E. 693, 41 N. E. 827. 714 PUBLIC REVENUES. 311 zation claiming jurisdiction of either persons or property for the purpose of taxation to maintain such jurisdiction. 80 The right to tax those moving from one taxing district to another about the time of assessment is generally determined by particular pro- visions of the statute as well as other questionable cases affect- ing the right of a taxing district to impose taxes based upon the ground of residence or location within its limits, 81 or rights affected by change of boundaries. 81 so McConoughey v. City of San tract of exemption is assignable and Diego, 128 Cal. 366; Galbreath v. may be transferred to another cor- Newton, 30 Mo. App. 380; Smith v. poration. Budd v. Allen, 69 Hun, Barrett, 41 Mo. App. 460; Chicago, 535, 24 N. Y. Supp. 5; Arthur v. B. & Q. R. Co. v. Cass County, 51 School District of Polk Borough, 164 Neb. 369, 70 N. W. 955; Hurlburt Pa. 410; King v. Utah C. R. Co., 6 v. Green, 41 Vt. 490. Utah, 281. s 1 Ex parte Upshaw, 45 Ala. 234; 82 Town of New Decatur v. Nel- Hughes v. Ewing, 93 Cal. 414, 28 son, 102 Ala. 556, 15 So. 275; Hughes Pac. 1067. Determining the rights v. Ewing, 93 Cal. 414, 28 Pac. 1067; of taxpayers where district boun- Callaway v. Denver & R. G. R. Co., daries have been changed after vot- 6 Colo. App. 284, 40 Pac. 573; Cham- ing a tax but before its levy. Cal- bers v. Adair, 23 Ky. L. R. 373, 62 laway v. Denver & R. G. R. Co., 6 S. W. 1128 ; Capen v. Glover, 4 Mass. Colo. App. 284, 40 Pac. 573; Pidgeon 305; Richards v. Dagget, 4 Mass, v. McCarthy, 82 Ind. 321. An ac- 534; Waldron v. Lee, 22 Mass. (5 quiescence for sixty years in taxa- Pick.) 323; School Dist. No. 9 v. tion by municipal authority will School Dist. No. 6, 9 Neb. 331; Pick- estop the owners of property from ering v. Coleman, 53 N. H. 424; disputing the municipal right to tax Ovitt v. Chase, 37 Vt. 196. because not within its jurisdiction. Madry v. Cox, 73 Tex. 538. Prop- Rapids Dist. Tp. v. Clinton Dist. erty annexed to a municipal cor- Tp., 27 Iowa, 323; Montgomery v. poration will be subject to taxation City of Lebanon, 23 Ky. L. R. 891, for the payment of its debts. See, 64 S. W. 509; Huckins v. City of also, as holding the same proposi- Boston, 58 Mass. (4 Gush.) 543; tion, the next five cases. City of Johnston v. Cathro, 51 Mich. 80; East St. Louis v. People, 124 111. City of Detroit v. Detroit City R. Co., 655; City of New Orleans v. Great 76 Mich. 421; Manistee & N. E. R. Southern Tel. & Tel. Co., 40 La. Co. v. Railroads Com'rs, 118 Mich. Ann. 41; Newark Aqueduct Board 349, 76 N. W. 633. No contract re- v. City of Newark, 50 N. J. Law, lation, however, is created where no 126; Voorhies v. City of Houston, 70 substantial consideration runs to the Tex. 331; and Lucia v. Village of state. Detroit Citizens' St. R, Co. Montpelier, 60 Vt. 537, 1 L. R. A. v. Common Council of Detroit 169. (Mich.) 85 N. W. 96. Such a con- 312 TAXATION. 715 312. The authority to tax and upon what based. The authority for all municipal taxation must proceed from the sovereign. The basis of such taxation is the exercise of a sovereign right as a theory, but as a matter of practice the fact that the subject of taxation receives a local benefit, protection or advantage through the levying and collection of the taxes. 83 As the authority to tax proceeds from the legislature, repre- senting the sovereign, it necessarily follows that if an exclusive method has been provided by it for the taxation either of cer- tain individuals or of specific property, these are exempt from all other taxation except special assessments or taxes; 84 such being levied for a specific purpose and resting upon a basis en- tirely different in its nature from that sustaining ordinary taxa- tion do not come within the exemption. The municipal power to tax is limited to the methods 85 and subjects named in the ex- press authority. 86 83 Hanson v. Vernon, 27 Iowa, 28; Mitchell v. Williams, 27 Ind. 62; Northern Liberties v. St. John's Church, 13 Pa. 104. s* City of Albany v. Savannah, F. & W. R. Co., 71 Ga. 158; Cincinnati, N. O. & T. P. R. Co. v. Com., 21 Ky. L. R. 418, 51 S. W. 568. "The petitions are all based upon a local assessment made by an assessor ap- pointed by the school board. It is insisted that this is unwarranted. The law regulating the assessment of railroad property for the y'ear 1893 is found in Gen. St. pp. 1042- 1045. Section four provides: 'No county, city or incorporated town in this state shall hereafter assess, levy or collect any taxes on the property of railroad companies in this state except as provided by this article.' Section 4102 of the Ken- tucky Statutes contains the same provision. Section 4099 provides for the reports of school districts so that the proper assessment may be made. Section 4100 requires the money paid to the superintendent of public schools for the benefit of the district entitled thereto. Under these provisions, appellees could not assess the property of the railroad company, nor recover the taxes bas- ed upon an assessment so made." City of Davenport v. Mississippi & M. R. Co., 16 Iowa, 348; Dubuque & S. C. R. Co. v. City of Dubuque, 17 Iowa, 120; Sears v. Boston St. Com'rs, 173 Mass. 350, 53 N. E. 876. The construction and management of a general sewerage system for an entire city should be raised by gen- eral taxation rather than special assessments. Kittle v. Shervin, 11 Neb. 65; Northern Indiana R. Co. v. Connelly, 10 Ohio St. 159; New York, P. & N. R. Co. v. Northamp- ton County Sup'rs, 92 Va. 661, 24 S. E. 221. ss Livingston v. City of Albany. 41 Ga. 21. Where the constitution provides for an ad valorem tax on property, even the legislature cannot authorize a subordinate corporation 716 PUBLIC REVENUES. 313 313. Exemptions. Property may be exempt from taxation either because of the purpose for which used, its ownership or a specific grant of ex- emption. (a) Public property exempt. It is axiomatic to state that prop- erty owned, controlled and used by public corporations for pub- lic purposes is exempt from all species of taxation and even in many instances from the levying of special taxes or assessments except when otherwise provided by law. 87 The rule, however, does to levy a specific tax irrespective of the value of the property so taxed. State v. Severance, 55 Mo. 378. se Baldwin v. City Council of Montgomery, 53 Ala. 437; City of Savannah v. Hartridge, 8 Ga. 23. The right to tax in common cannot be implied from a charter author- izing a municipal corporation to tax real and personal estate. City Council of Augusta v. Dun- bar, 50 Ga. 387. The rule also ap- plies to the imposition of penalty Imposed for a delay in the payment of taxes. Lanier v. City of Macon, 59 Ga. 187. The authority to tax all persons exercising any profession gives the right to tax the individ- ual members of a law firm. City of Columbus v. Flournoy, 65 Ga. 231; City of Newark v. State Board of Taxation, 67 N. J. Law, 246, 51 All. 67; Bank of Greens- boro' v. Greensboro' Com'rs, 74 N. C. 385; Wilson v. Aldermen of Char- lotte, 74 N. C. 748; State v. City Council of Charleston, 1 Mill, Const. (S. C.) 36. Bonds bearing interest are included within the term "tax- able property." Jenkins v. City of Charleston, 5 S. C. 393; Ex parte Schmidt, 2 Tex. App. 196, construing the power of the city of Houston to tax fire and marine insurance com- panies. City of Dallas v. Dallas ConsoL Elec. St. R. Co., 95 Tex. 268, 66 S. W. 835, construing sections 118, 134, and 135 of the charter of the city of Dallas authorizing the coun- cil to levy taxes upon franchises and all other property of street rail- ways as well as other corporations. Newport News & O. P. R. & Elec. Co. v. City of Newport News, 100 Va. 157, 40 S. E. 645. A municipal- ity has the right to levy taxes on all subjects not withheld from tax- ation by the legislature. Blanton v. Southern Fertilizing Co., 77 Va. 335. 87 See post, 339. People v. Doe, 36 Cal. 220; People v. Austin, 47 Cal. 353; People v. Salomon, 51 111. 37; Illinois Industrial University v. Champaign County Sup'rs, 76 111. 283; Reid v. State, 74 Ind. 252; Board of Regents v. Hamilton, 28 Kan. 376; Inhabitants of Worcester v. City of Worcester, 116 Mass. 193; Jersey City Water Com'rs v. Gaff- ney, 34 N. J. Law, 133; City of Rochester v. Town of Rush, 80 N. Y. 302. Directors of the Poor of S. County v. School Directors, 42 Pa. 21. A public poor-house it was here claim- ed was subject to taxation for school purposes. The court say: "Tax the poor-house to support the schools? Why, this would be to take the poor taxes to support the schools; and the people must be 313a TAXATION. 717 not apply to the property of public corporations not held for gov- ernmental purposes but in their economic and commercial capa- city as private corporations and for their own profit. 88 The only means possessed by public corporations for the payment of taxes is derived from its levy and collection of taxes. They have no in- dependent sources of revenue. 89 The levying and collecting of taxed to pay the officers who per- form such foolish service. If we re- quire the townships, counties, towns, cities, and state, and the road, school, and poor authorities, to tax each other, we shall furnish fees enough for several hundred officers engaged in transferring from one public body to another the taxes which it has collected for its public purposes. These poor taxes must be collected to support the schools and the roads, and school taxes to sup- port the poor, and so all around. Surely it is not too much to say this is absurd. The public is never subject to tax laws, and no portion of it can be without express stat- ute. No exemption law is needed for any public property held as such." Cooley, Taxation, p. 172. "All such property is taxable, if the state shall see fit to tax it; but to levy a tax upon it would render necessary new taxes to meet the de- mand of this tax, and thus the pub- lic would be taxing itself in order to raise money to pay over to it- self, and no one would be benefited but the officers employed, whose compensation would go to increase the useless levy. It cannot be sup- posed that the legislature would ever purposely lay such a burden upon public property, and it is therefore a reasonable conclusion that, however general may be the enumeration of property for taxa- tion, the property held by the state and by all its municipalities for governmental purposes was intend- ed to be excluded, and the law will be administered as excluding it in fact. The grant, therefore, in gen- eral terms to a city of the power to tax, will not be held to confer power to tax state or county prop- erty, and the rule applies to the property of public educational and charitable institutions which per- form public functions under state control, and to any other corpora- tion of which the state is substan- tially the corporator, and which ex- ists for governmental purposes." ss Town of West Hartford v. West Hartford Water Com'rs, 44 Conn. 360; McChesney v. People, 99 111. 216; In re Appeal of Des Moines Water Co., 48 Iowa, 324; City of Louisville v. Com., 62 Ky. (1 Duv.) 295. See, also, Anne Arundel Coun- ty Com'rs v. Duckett, 20 Md. 468; Bailey v. City of New York, 3 Hill (N. Y.) 531; Lloyd v. City of New York, 5 N. Y. (1 Seld.) 369; Storrs v. City of Utica, 17 N. Y. 104; Western Sav. Fund Soc. v. City of Philadelphia, 31 Pa. 175. 89 Fall v. City of Marysville, 19 Cal. 391; Low v. Lewis, 46 Cal. 549. "The property of a municipal cor- poration is not liable to taxation for municipal purposes. It cannot tax its own property." Cook County v. City of Chicago, 103 111. 646. A water tax, however, can be assessed against a public institution. Ottum- wa Brick & Const. Co. v. Ainley, 109 Iowa, 386; Wyman v. City of St. 718 PUBLIC REVENUES. 3l3b taxes upon public property would be an unnecessary expense and a useless multiplication of accounts. (b) Other exemptions. In the grant of authority to tax, cer- tain property may be excluded. 90 Where in the absence of such exemption, however, the general right to tax has been given, all property within the jurisdiction of the corporation can be taxed. In this country there are two independent governments, the federal and the government of the states. Each within certain well defined restrictions is supreme, and it is beyond the power of either, within such limitations, to take any action which may impair or destroy the integrity of the other as an independent sovereignty. This principle applies to the levying of taxes. 91 The Louis, 17 Mo. 335. A building used in part for a school house and in part for other purposes is not ex- empt. People v. De Witt, 59 App. Div. 493, 69 N. Y. Supp. 366. Con- struing 4, N. Y. Laws 1896, c. 908, exempting from taxation property of municipal corporations used for public purposes except that not within the limits of the corporation. o Savannah v. Atlantic & G. R. Co., 3 Woods, 432, Fed. Gas. No. 12,385; Baldwin v. City Council of Montgomery, 53 Ala. 437. Where, in the grant of authority to tax, the subjects of taxation are specifi- cally enumerated, the right of the municipality to levy taxes will be limited to these subjects and the authority will not be construed as a general power to tax all subjects including others not so enumerated. City of Albany v. Savannah, F. & W. R. Co., 71 Ga. 158; City of New Orleans v. Southern Bank of New Orleans, 15 La. Ann. 89; City of New Orleans v. Dunbar, 28 La. Ann. 722; Montague v. State, 54 Md. 481; Lee v. Thomas, 49 Mo. 112; State v. Arnold, 136 Mo. 446; Haines v. Mullica Tp., 51 N. J. Law, 412, 17 All. 941. An act excepting a certain township from the operation of tax laws is void because in con- travention of N. J. Const., art. 4, 7, prohibiting the legislature from passing private, local or special laws regulating the internal affairs of a town or county. Bridge Proprietors v. State, 21 N. J. Law (1 Zab.) 384, and Bridge Proprietors v. State, 22 N. J. Law (2 Zab.) 593, hold that toll bridges are liable to taxation un- less specially exempted. People v. Lee, 28 Hun (N. Y.) 469; Shapter v. Carroll, 18 App. Div. 390, 46 N, Y. Supp. 202; Carpenter v. Hop- kinton School Trustees, 12 R. I. 574; City of Memphis v. Hernando Ins. Co., 65 Tenn. (6 Baxt.) 527; Wash- ington County Sup'rs v. Saltville Land Co., 99 Va. 640, 39 S. E. 704; Newport News & O. P. R. & Elec. Co. v. City of Newport News, 100 Va. 157, 40 S. E. 645. An exemption from taxation, however, is never presumed; the right to levy taxes being a governmental one and not based upon contract. ! Wagner v. Jackson, 33 N. J. Law, 450. The levy of a tax for the payment of commutation money for exemption from military service in 313b TAXATION. 719 right to tax includes the power to tax to the limit of confisca- tion. It includes, as Chief Justice Marshall said, "the power to destroy," 92 therefore, agencies of either state or national gov- the national army held illegal as obstructing the Federal government in performing its operations. The court say: "It is not disputed that any legislation by the state, or its municipal corporations, contrary to an act of Congress or which ob- structs the Federal government in performing its functions, is invalid. It need not be in direct opposition to an act of Congress, or in terms annul it, but if such legislation tend or may tend to defeat its operation, the legislation is void. * * * As this township took away entirely from the drafted man the pecuniary inducement to enter the service wisely and deliberately provided by congress, which was not done by the legislation that gave the money to the drafted man if he served, the tax assessed for that purpose is illegal and must be set aside." 92 McCulloch v. Maryland, 4 Wheat. (U. S.) 316-391. "The last, and greatest, and only difficult ques- tion in the cause, is that which re- spects the assumed right of the states to tax this bank, and its branches, thus established by Con- gress. This is a question compara- tively of no importance to the in- dividual states, but of vital im- portance to the Union. Deny this exemption to the bank as an instru- ment of government, and what is the consequence? There is no ex- press provision in the constitution which exempts any of the national institutions or property from state taxation. It is only by implication that the army, and navy, and treas- ure, and judicature of the Union are exempt from state taxation. Yet they are practically exempt; and they must be, or it would be in the power of any one state to destroy their use. Whatever the United States have a right to do, the indi- vidual states have no right to undo. The power of Congress to establish a bank, like its other sovereign pow- ers, is supreme, or it would be noth- ing. Rising out of an exertion of paramount authority, it cannot be subject to any other power. Such a power in the states, as that contend- ed for on the other side, is mani- festly repugnant to the power of Congress; since a power to estab- lish implies a power to continue and preserve. There is a manifest re- pugnancy between the power of Maryland to tax, and the power of Congress to preserve, this institu- tion. A power to build up what an- other may pull down at pleasure is a power which may provoke a smile, but can do nothing else. This law of Maryland acts directly on the operations of the bank, and may de- stroy it. There is no limit or check in this respect, but in the discretion of the state legislature. That dis- cretion cannot be controlled by the national councils. Whenever the local councils of Maryland will it, the bank must be expelled from that state. A right to tax without limit or control, is essentially a power to destroy. If one national institution may be destroyed in this manner, all may be destroyed in the same manner. If this power to tax the national property and in- stitutions exists in the state of 720 PUBLIC REVENUES. 313b ernments cannot be taxed by the other without the consent of the taxed. 83 But the rule does not extend so far as to prevent the property of Federal or state agencies from being taxed in the same manner as similar property when no law forbids and when the effect of the taxation would not defeat or hinder the opera- tions of government. 94 In the Federal constitution is found a declaration of some principles and exemptions protecting the na- tional government from state attacks directly or indirectly through the imposition of taxes. 95 Congress may also provide for Maryland, it is unbounded in extent. There can be no check upon it, either by Congress or the people, of the other states." 3 Kansas Pac. R. Co. v. Prescott, 83 U. S. (16 Wall.) 603. Affirmed in this particular by Union Pac. R. Co. v. McShane, 89 U. S. (22 Wall.) 444, 462; Northern Pac. R. Co. v. Traill County, 115 U. S. 600; Cen- tral Pac. R. Co. v. State of Nevada, 162 U. S. 512. The rule applied to unpatented railroad land grants; such lands, as well as all public lands under the laws of the United States not taxable by state authori- ties. City Council of Augusta v. Dun- bar, 50 Ga. 387. A municipal cor- poration cannot impose a tax upon bonds issued by the state. See the following authorities among many others exempting agencies of the Federal government: Van Allen v. Assessors at Albany, 70 U. S. (3 Wall.) 573; First Nat. Bank of Louisville v. Com., 76 U. S. (9 Wall.) 353; McCulloch v. Maryland, 4 Wheat. (U. S.) 316; Osborn v. Bank of United States, 9 Wheat. (U. S.) 738;- Dobbins v. Erie County Com'rs, 16 Pet. (U. S.) 435; Na- tional Commercial Bank v. City of Mobile, 62 Ala. 284; Sumter County v. National Bank of Gainesville, 62 Ala. 464; Melcher v. City of Boston, 50 Mass. (9 Mete.) 73; Flint v. City of Boston, 99 Mass. 141; North Ward Nat. Bank v. City of Newark, 39 N. J. Law, 380. See, also, the following cases dis- cussing an exemption of state agen- cies from taxation by the Federal government: Buffington v. Day, 78 U. S. (11 Wall.) 113; Ward v. Mary- land, 79 U. S. (12 Wall.) 418; United States v. Baltimore & O. R. Co., 84 U. S. (17 Wall.) 322; Smith v. Short, 40 Ala. 385; Warren v. Paul, 22 Ind. 276; Moore v. Quirk, 105 Mass. 49; Sayles v. Davis, 22 Wis. 217; Cooley, Const. Lim. (5th Ed.) p. 598. 9* Thomson v. Union Pac. R. Co., 76 U. S. (9 Wall.) 579. The court here said that a different rule "would remove from the reach of state taxation all the property of every agent of the government. Every corporation engaged in the transportation of mails or of gov- ernment property, of any descrip- tion by land or water or in supply- ing materials for the use of the government or in performing any service of whatever kind might claim the benefit of the exemption." os Northwestern Union Packet Co. v. City of St. Paul, 3 Dill. 454, Fed. Gas. No. 10,346. An ordinance im- posing a wharfage tax each trip upon every boat or vessel running 313c TAXATION. 721 exemption from taxation by the states of property exclusively within its control or under its jurisdiction. Such laws are para- mount ajid taxes levied in contravention of their terms are illegal and cannot be collected. 96 (c) Contract exemptions. A public corporation may possess the power in consideration of certain benefits or advantages re- ceived or to be received, by contract express or implied, to re- lieve private property from the payment of taxes for a specified period, 97 where the consideration is substantial, the contract ex- emption can be enforced. 98 or anchoring in front of a public wharf is void being in conflict with that provision of the Federal con- stitution, art. 1, 10, cl. 2 prohibit- ing a state to levy any duty on ton- nage without the consent of Con- gress,, citing Cannon v. City of New Orleans, 87 U. S. (20 Wall.) 577. The North Cape, 6 Biss. 505, Fed. Cas. No. 10,316. The prohibition in the Federal constitution against the imposition of "a duty on tonnage" does not prevent the taxation of a vessel under state laws for ordinary purposes. 6 Brown v. Maryland, 12 Wheat (U. S.) 419. 9- Gulf & S. I. R. Co. v. Hewes, 183 U. S. 66, construing a certain exemption and holding that in the light of the state constitution and the prior decisions .of the state courts it must be held subject to the power of the legislature to alter, amend or repeal it. Whiting v. Town of West Point, 88 Va. 905, 14 S. E. 698, 15 L. R. A. 860. "A municipal corporation has no element of sovereignty. It is a mere local agency of the state, hav- ing no other powers than such as are clearly and unmistakably granted by the law-making power. * * * The power of taxation is not only an attribute of sovereign- ty but it is essential to the exist- ence of government and as all are protected by the government so all should contribute to its support. * * * So also is the power to make exemptions sovereign in its nature and likewise resides in the legislature unless the constitution otherwise ordains. It is, therefore, a legal solecism to say that the power of exemption or any other sovereign power is inherent in a municipal corporation which, though invested with certain gov- ernmental powers for local pur- poses, is in no particular sover- eign." Cooper v. Ash, 76 111. 11. An ex- emption must be of a class and not individually. Grand Gulf & P. G. R. Co. v. Buck, 53 Miss. 246; Mis- sissippi Mills v. Cook, 56 Miss. 40; Adams v. Yazoo & M. V. R. Co., 77 Miss. 194, 60 -L. R. A. 33; State v. Hannibal & St. J. R. Co., 75 Mo. 208. The power to tax does not give the power to exempt which must be specifically given. People v. New York Tax Com'rs, 95 N. Y. 554. Exemption statutes must be strictly construed. 93 Bartholomew v. City of Austin (C. C. A.) 85 Fed. 359. If the ex- emption from taxation prove void, the courts will enforce substantial Abb. Corp. 46. 722 PUBLIC REVENUES. 313d (d) Exemptions arising because of purpose for which property is used. The organization of a municipal corporation is supposed to result in certain local benefits to all persons and property within its limits, notably, fire and police protection. If property on account of the purposes for which used does not receive the benefits or advantages which usually accompany municipal or- ganizations, the legislature may, by statutory exemption, exclude such property from the operation of tax laws granting municipal authority to tax." equities existing between the par- ties based upon a partial perform- ance of the contract. Montreal St. R. Co. v. City of Montreal, 23 Can. Sup. Ct. 259. Such a contract of exemption may not, however, relieve from all tax- ation. City of Dayton v. Bellevue Water & Fuel Gaslight Co., 24 Ky. L. R. 194, 68 S. W. 142. Exemption construed and held as being made without authority. City of New Orleans v. Great Southern Tel. & Tel. Co., 40 La. Ann. 41, 3 So. 533. A charge of $5.00 per pole on the poles of a telephone company cannot be imposed where the permission has already been se- cured for the use of the streets un- der an ordinance duly passed. 9 Gold Hill v. Caledonia Silve'r Min. Co., 5 Sawy. 575, Fed. Gas. No. 5,512. The question of benefit is held in this case a legislative, not a judicial one. State v. Southern R. Co., 115 Ala. 250; Town of Dixon v. Mayes, 72 Cal. 166, 13 Pac. 471. Land used solely for agricultural purposes when within corporate lim- its is still liable for taxation for municipal purposes. St. Louis Bridge Co. v. City of East St. Louis, 121 111. 238, 12 N. E. 723. The part of the St. Louis Bridge within the corporate lim- its of East St. Louis is liable to tax- ation for municipal purposes al- though it receives no material bene- fit by reason of its location in re- spect to police protection or other advantages supposed to be derived from municipal organization. Blain v. Bailey, 25 Ind. 165. Farm lands within city limits are, by the act of June 18, 1852, ex- empt from taxation for municipal purposes. Hamilton v. City of Ft. Wayne, 40 Ind. 491; Stilz v. City of Indianapolis, 55 Ind. 515. The right to tax, however, cannot be raised by the landowner in a collateral pro- ceeding. City of Indianapolis v. Ritzinger, 2* Ind. App. 65, 56 N. B. 141; Conklin v. Town of Cambridge City, 58 Ind. 130; Town of Cicero v. Sanders, 62 Ind. 208. Glover v. City of Terre Haute, 129 Ind. 593. In an action to en- join the collection of taxes levied for municipal uses, tne method for the annexation of platted suburban property cannot be raised. Lang- worthy v. City of Dubuque, 16 Iowa, 271. It is held that city "out lots" when benefited and enhanced in val- ue are liable to taxation. The ques- tion is one of fact. Fulton v. City of Davenport, 17 Iowa, 404; Deeds v. Sanborn, 22 Iowa, 214; Id., 26 Iowa, 419; Buell v. Ball, 20 Iowa, 282; Davis v. City of Dubuque, 20 Iowa, 458; Deiman 314 TAXATION. 314. Taxes ; their levy and assessment. 723 Where the levy of taxes by a subordinate agency is authorized by a sovereign, this then becomes an obligatory duty and can be v. City of Ft. Madison, 30 Iowa, 542; Durant v. Kauffman, 34 Iowa, 194; Ford v. Town of North Des Moines, 80 Iowa, 626, 45 N. W. 1031. The fact that property within municipal limits is subject to overflow does not exempt it from taxes for munic- ipal purposes. Brooks v. Polk County, 52 Iowa, 460; Taylor v. City of Waverly, 94 Iowa, 661, 63 N. W. 347; Evans v. City of Council Bluffs, 65 Iowa, 238; Tubbesing v. City of Burlington, 68 Iowa, 691. Under Iowa Laws 1876, c. 47, 4, amended by laws of 1878, c. 169, a tract of land within the city limit used for agricultural pur- poses and also for the owner's resi- dence is not taxable. Farwell v. Des Moines Brick Mfg. Co., 97 Iowa, 286, 35 L. R. A. 63; Perkins v. City of Burlington, 77 Iowa, 553. Allen v. City of Davenport, 107 Iowa, 90, 77 N. W. 532. Land with- in the city limits occupied by lum- ber yards, pasture, etc., is not used for agricultural purposes within the law exempting such land from taxa- tion for city purposes. Windsor v. Polk County, 109 Iowa, 156; Men- denhall v. Burton, 42 Kan. 570; Hurla v. Kansas City, 46 Kan. 738. Simms v. City of Paris, 8 Ky. L. R. 344. 1 S. W. 543. Land not used exclusively for farming when with- in the limits of a city is liable to taxation for municipal purposes. Maltus v. Shields, 59 Ky. (2 Mete.) 553. An unplatted tract of nine acres of land used for residences within the city limits will be sub- ject to taxation for municipal pur- poses. Torbett v. City of Louis- vine, 9 Ky. L. R. 202, 4 S. W. 345; Courtney v. City of Louisville, 75 Ky. (12 Bush) 419. The court in this case held that in order to sub- ject real property within the corpo- rate limits of a town or city to tax- ation for ordinary municipal pur- poses, there must be benefits actual or presumed to such property de- rived from the municipal corpora- tion. City of Covington v. Arthur, 12 Ky. L. R. 163, 14 S. W. 121; Trus- tees of Elkton v. Gill, 14 Ky. L. R. 755, 21 S. W. 579; Briggs v. Town of Russellville, 18 Ky. L. R. 389, 36 S. W. 558; City of Pineville v. Creech, 16 Ky. L. R. 172, 26 S. W. 1101; City of Lebanon v. Bevill, 18 Ky. L. R. 924, 38 S. W. 872; Town of Latonia v. Hopkins, 20 Ky. L. R. 620, 42 S. W. 248. Although agricul- tural lands receive no benefit from corporate organization, they are still subject to taxation for munici- pal purposes. Bell County Coke & Imp. Co. v. City of Pineville, 23 Ky. L. R. 933, 64 S. W. 525; City of Frankfort v. Gaines, 88 Ky. 59; Eifert v. Town of Central Covington, 91 Ky. 194; Henderson Bridge Co. v. City of Henderson, 90 Ky. 498; Stickley v. Chesapeake & O. R. Co., 93 Ky. 323; Briggs v. Town of Russellville, 99 Ky. 515, 34 L. R. A. : 193; City of New Orleans v. Michoud, 10 La. Ann. 763; Groff v. City of Frederick, 44 Md. 67; Smith v. City of Saginaw, 81 Mich. 123; Baldwin v. City of Hastings, 83 Mich. 639; Adams v. 724 PUBLIC REVENUES. 314 enforced in courts having jurisdiction of the questions raised by the proper proceedings, generally a writ of mandamus directed Yazoo & M. V. R. Co., 75 Miss. 275; Adams v. Mississippi State Bank, 75 Miss. 701. Giboney v. City of Girardeau, 58 Mo. 141. An extension to the city limits is not necessarily illegal be- cause it operates to subject to mu- nicipal taxes farm property. City of Stanberry v. Jordan, 145 Mo. 371; Bradshaw v. City of Omaha, 1 Neb. 16; Gottschalk v. Becher, 32 Neb. 653. Where suburban property is annexed to municipal organization under Comp. St. Neb. 1891, c. 14, 95, it is exempt from taxation. Lan- caster County v. Rush, 35 Neb. 119; Sage v. City of Plattsmouth, 48 Neb. 558; McClay v. City of Lincoln, 32 Neb. 412, 49 N. W. 282. Rev. St. Neb. 1866, c. 53, 1, authorizes the taxation of unplatted lands within the city limits. Bailey v. Brown, 53 N. J. Law, 162, following Menden- hall v. Burton, 42 Kan. 570. Kelly v. City of Pittsburgh, 85 Pa. 170. Lands embraced within the borders of a city and used only for farming purposes may be taxed for municipal objects from which the lands do not receive any protection or derive any benefit. Appeal of Hewitt, 88 Pa. 55; City of Erie v. Reed's Ex'rs, 113 Pa. 468. The final determination of whether real es- tate is within the limits of a city is rural and capable of receiving the benefits of street lighting, paving and other improvements, is left un- der act of February 25, 1870 (P. L. 242) to the council of the city of Erie. Their decision is conclusive unless this discretion is abused. Carriger v. City of Morristown, 69 Tenn. (1 Lea) 116; Lum v. City of Bowie (Tex.) 18 S. W. 142. Sub- urban land annexed without the consent of the owner residing upon it is not subject to taxation for municipal purposes and an injunc- tion will lie to restrain city taxes as levied. Norris v. City of Waco, 57 Tex. 635; Cook v. Crandall, 7 Utah, 344; Ellison v. Linford, 7 Utah, 166. Where farming land within the corporate limits will de- rive no benefit from the expenditure of taxes raised for municipal pur- poses, it is not subject to such taxa- tion. Kaysville City v. Ellison, 18 Utah, 163, 55 Pac. 386, 43 L. R. A. 81; Ferguson v. City of Snohomish, 8 Wash. 668, 24 L. R. A. 795. Land used solely for agricultural pur- poses may be included within the limits of a municipal corporation and under act of March 27, 1890 (page 131) which provides for the incorporation, government and clas- sification of such corporations, it is subject to general municipal taxa- tion. Frace v. City of Tacoma, 16 Wash. 69. It is not necessary that lands should receive the benefits of mu- nicipal organization to render a tax for such purposes valid. Powell v. Parkersburg, 28 W. Va. 698. Under West Va. Act of 1875, c. 54, 101 and 103, outlying farming lands within the city limits can be taxed as city lands. Weeks v. City of Milwaukee, 10 Wis. 242. The legislature has the power to annex farming lands to a city and subject them to the burden of taxation for municipal purposes. Davis v. Town of Point Pleasant, 32 W. Va. 289. 314 TAXATION. 725 against the officials whose statutory and usual duty is to do those acts required by law and necessary to the legal levy and collec- tion of taxes. 100 This power to compel by mandamus the per- formance of a duty is vested not only in state but also in the Fed- eral courts; they can only compel the levy of a municipal tax when state laws authorize it to be levied and the proper officials neglect or refuse. A mandamus does not confer power upon those to whom it is directed, it only enforces the exercise of a power already existing when its exercise has become or is a duty. 101 100 See, also, authorities cited in the county auditor to perform their the following note as sustaining the duties in this respect, right to compel by mandamus a levy State v. Paddock, 36 Neb. 263, 54 of taxes. The President v. City of N. W. 515. In this case the court Elizabeth, 40 Fed. 799; Vickrey v. writing the syllabus says: "South Sioux City, 104 Fed. 164; Welch v. Omaha as shown by the census of Ste. Genevieve, 1 Dill. 130, Fed. Cas. 1890, is a city of the second class, No. 17,372. Where a municipal cor- having more than 8,000 and less poration refuses to levy a tax to pay than twenty-five thousand inhabi- a judgment or to elect officers whose tants, and not a city of the first duty it is to levy such taxes, a cir- class. The school board of South cuit court of the United States may Omaha on the 6th day of June, 1892, appoint its marshal a special com- made an estimate of the amount missioner to assess, levy and collect of school tax to be levied in said the requisite tax. city for that year. This estimate Wells v. Cole, 27 Ark. 603; Meyer was imperfect in its statements v. Brown, 65 Cal. 583; People v. and details. The defendants held Lake County Com'rs, 12 Colo. 89; the same until July 14, 1892, when Jones v. State, 17 Fla. 411. All they refused to levy the tax. Aft- prior proceedings must have been erwards proceedings in mandamus properly performed before manda- were instituted and the court ren- mus will lie. State v. City of New dered judgment for the defendants. Orleans, 42 'La. Ann. 92; Attorney Corrected estimates were then filed. General v. City of Salem, 103 Mass. Held, that such estimates related 138; Jarvis v. Warren County back to June 6 of that year, and Sup'rs, 49 Miss. 603. A petition for that it was the duty of the defend- mandamus to compel the levy of a ants to levy the tax." Davis v. Simp- tax that fails to state the particular son, 25 Nev. 123, 68 Pac. 146; Joint district for the benefit for which Free High School Dist. v. Town of this tax was levied is insufficient. Green Grove, 77 Wis. 532. See, also, Musgrove v. Vicksburg & N. R. Cooley, Taxation, pp. 734 et seq., for Co., 50 Miss. 677. Where certain a full discussion of the question and subordinate officials refuse or neg- the many authorities there cited, lect to levy a tax, Miss. Act of 101 Butz v. City of Muscatine, 75 March 15, 1872 (p. 102) empowers U. S. (8 Wall.) 575; Carroll County 726 PUBLIC REVENUES. 315 315. Basis or authority for tax levy. The levy of a tax is usually based upon an assessment of prop- erty according to some uniform method prescribed by law, 102 or a gross tax may be levied directly by a vote of qualified electors to be apportioned subsequently and imposed upon property sub- ject to it in some equitable and uniform manner. 103 Sup'rs v. United States, 85 U. S. (18 Wall.) 71; Heine v. Levee Com'r-, 86 U. S. (19 Wall.) 655; Barkley v. Levee Com'rs, 93 U. S. 258; United States v. County of Clark, 95 U. S. 769; United States v. City of New Orleans, 98 U. S. 381; Ex parte Par- sons, 1 Hughes, 282, Fed. Cas. No. 10,774; Welch v. Ste. Genevieve, 1 Dill. 130, Fed. Cas. No. 17,372; Lan- sing v. County Treasurer, 1 Dill. 522, Fed. Cas. No. 16,538; Britton v. Platte City, 2 Dill. 1, Fed. Cas. No. 1,907; Com. v. Select & Common Councils of Pittsburgh, 34 Pa. 496; Com. v. Allegheny Com'rs, 37 Pa. 277. 102 People v. Stockton & C. R. Co., 49 Cal. 414; Chicago & N. W. R. Co. v. People, 174 111. 80; City of In- dianapolis v. Morris, 25 Ind. App. 409, 58 N. E. 510; City of Owens- boro v. Callaghan, 13 Ky. L. R. 418, 17 S. W. 278; Halleck v. Inhabitants of Boylston, 117 Mass. 469, constru- ing Mass. St. 1870, c. 196, 3; Koontz v. Burgess & Com'rs of Han- cock, 64 Md. 134. Auditor General v. McArthur, 87 Mich. 457. A school tax affecting a portion only of the taxable property within the school district is void. Lockey v. Walker, 12 Mont. 577. Under Const, art. 12, 4, 5, 11, municipal authorities are vested with a discretionary power in the determination of the property as- sessment, the basis of taxation. Stephens v. School Dist. No. 21, 6 Or. 353. The assessment of prop- erty for school taxes should be de- termined upon the same general principles governing the making and the assessments for general taxes. San Antonio St. R. Co. v. City of San Antonio, 22 Tex. Cir. App. 341. Construing San Antonio city charter, 194, as limited by Const, art. 8, 5 and 11, relating to the taxation of railroad property. Eustis v. City of Henrietta, 90 Tex. 468, 39 S. W. 567; Bigelow v. Town of Washburn, 98 Wis. 553, 74 N. W. 362; Hixon v. Oneida County, 82 Wis. 515. 103 Murphy v. Harbison, 29 Ark. 340; Holland v. Davies, 36 Ark. 446. In the absence of a showing of an injury, a school district tax not held invalid because the polls were clos- ed before the time fixed by law. Rogers v. Kerr, 42 Ark. 100. The vote should be for a specified amount. Cooper v. Miller, 113 Cal. 238, 45 Pac. 325; Prowers County Com'rs v. Pueblo & A. V. R. Co., 3 Colo. App. 398, 33 Pac. 682; Pickett v. Russell, 42 Fla. 116, 634, 28 So. 764; Ayers v. McCalla, 95 Ga. 555, 22 S. E. 295; Chicago & N. W. R. Co. v. People, 174 111. 80. A vote based upon a vote of the people and" other preliminary proceedings is presumed valid. Chicago & N. W. R. Co. v. People, 18* 111. 240; Houston v. Clay Coun- ty, 18 Ind. 396; Locker v. Keller, 110 Iowa, 707, 80 N. W. 433; Mac- 316 TAXATION. 727 316. Agency of tax levy. The power of making such assessment is vested by law either in certain officials or official bodies; 10 * they, in the performance of Kenzie v. Wooley, 39 La. Ann. 944; Longyear v. Auditor General, 72 Mich. 415, 40 N. W. 738; Gamble v. Auditor General, 78 Mich. 302, 44 N. W. 329, and Newaygo County Mfg. Co. v. Echtinaw, 81 Mich. 416, 45 N. W. 1010, hold that upon a failure of the electors to levy the taxes need- ed, under How. St. of Mich. 750, a town board has authority to act and raise the necessary amount. Tillotson v. Webber, 96 Mich. 114, 55 N. W. 837; Williams v. Mears, 61 Mich. 86. The vote of electors to levy a tax can only be proved by of- ficial records. Auditor General v. Duluth, S. S. & A. R. Co., 116 Mich. 122, 74 N. W. 505; Auditor General v. Sparrow, 116 Mich. 574, 74 N. W. 881. When electors "neglect or re- fuse" to vote money to defray town- ship expenses under public laws of Michigan, the town board are author- ized to act in this respect. Thayer Lumber Co. v. Springfield Tp., 131 Mich. 12, 90 N. W. 677; Taft v. Bar- rett, 58 N. H. 447; Vail v. Bentley, 23 N. J. Law (3. Zab.) 532; Canda Mfg. Co. v. Inhabitants of Wood- bridge Tp., 58 N. J. Law, 134, 32 Atl. 66; Apgar v. Van Syckel, 46 N. J. Law, 492. Meetings for such pur- pose must be regularly called. Haley v. Whitney, 53 Hun (N. Y.) 119; Vaughn v. School Dist. No. 31, 27 Or. 57, 39 Pac. 393; Mowry v. Mowry, 20 R. I. 74, 37 Atl. 306; Martin v. School Dist. of Laurens, 57 S. C. 125. A taxpayer attending and taking part in the proceedings of such an election is estopped to deny its legality. Rhomberg v. Mc- Laren, 2 Tex. Civ. App. 391, 21 S. W. 571; Miller v. Crawford Independent School Dist., 26 Tex. Civ. App. 495, 63 S. W. 894; Adams v. Sleeper, 64 Vt. 544; Soens v. City of Racine, 10 Wis. 271. 104 Purcell v. Town of Bear Creek, 138 111. 524, 28 N. E. 1085, affirming 39 111. App. 499; Bebb v. People, 172 111. 376. County Com'rs under Rev. St. of 1893, c. 139, have power to as- sess and collect town taxes. Chi- cago & N. W. R. Co. v. People, 174 111. 80. The signatures of a ma- jority of the highway commission- ers to a road tax list is sufficient to sustain its legality. Chicago & N. W. R. Co. v. People, 183 111. 247; Southern Warehouse & Transfer Co. v. Mechanics' Trust Co., 21 Ky. L. R. 1734, 56 S. W. 162. It is not necessary that the tax board should be one de jure. Connelly v. Trego County Com'rs, 64 Kan. 168, 67 Pac. 453; Hall v. Anne Arundel County Com'rs, 94 Md. 282, 51 Atl. 86; Mills v. Richland Tp., 72 Mich. 100; Bar- ber Asphalt Pav. Co. v. Ullman, 137 Mo. 543; Hutchinson v. City of Omaha, 52 Neb. 345, 72 N. W. 218; State v. Aitken, 62 Neb. 428, 87 N. W. 153; Hayes v. Hanson, 12 N. H. 284. Ne-ha-sa-ne Park Ass'n v. Lloyd, 25 Misc. 207, 55 N. Y. Supp. 108. The authority of taxing officials is confined to the territory within their jurisdiction. State v. Wood- side, 30 N. C. (8 Ired.) 104. A ma- jority of an official body acting at an official meeting may levy local taxes. Board of Education of Og- den v. Brown, 12 Utah, 251, 42 Pac. 1109. 728 PUBLIC REVENUES. their duties, are limited strictly to their statutory authority; tax laws are construed technically. The power to assess or levy taxes either as to amount or as affecting certain interests cannot be implied but must be found in some express provision of the law. 105 If the authority prescribes conditions either as to the manner, 106 the time, 107 or the place and manner 108 of the exer- 105 Comstock v. County of Yolo, 71 Cal. 599, 12 Pac. 728; Peoria, D. & E. R. Co. v. People, 141 111. 483, 31 N. E. 113; Chicago & N. W. R. Co. v. People, 184 111. 174; State v. Hannibal & St. J. R. Co., 87 Mo. 236. A county court has no implied power to levy a tax, and conditions imposed by the legislature in con- ferring the power must be strictly observed. State v. Hannibal & St. J. R. Co., 135 Mo. 618; City of Aurora v. Mc- Gannon, 138 Mo. 38; Libby v. State, 59 Neb. 264; Sharp v. Froehlich (N. J. Law) 37 Atl. 1024; Grady v. Kearney Tp. Committee, 59 N. J. Law, 86; City of Charlotte v. Shep- ard, 120 N. C. 411; Elliott v. Berry, 41 Ohio St. 110; Morris v. Cum- mings, 91 Tex. 618, 45 S. W. 383. Where a special grant to levy taxes is doubtful, the doubt should be re- solved against the exercise of the power. City of Denison v. Foster, 90 Tex. 22; Mueller v. Town of Ca- vour, 107 Wis. 599, 83 N. W. 944. loe Hilliard v. Bunker, 68 Ark. 340. No roll call of yeas and nays neces- sary on voting appropriations. Leachman v. Dougherty, 81 111. 324; Atchison, T. & S. F. R. Co. v. Max- well, 10 Kan. App. 370, 59 Pac. 1087; City of Somerset v. Somerset Bank- ing Co., 109 Ky. 549, 60 S. W. 5. Where a city council has authority to levy taxes, the action of a quorum is necessary to levy a legal tax. State v. Mississippi River Bridge Co., 134 Mo. 321, 35 S. W. 592; State v. Odom, 1 Speers (S. C.) 263; Hen- derson v. Hughes County, 13 S. D. 576, 83 N. W. 682. 107 City of San Luis Obispo v. Pet- tit, 87 Cal. 499; St. Louis Bridge & Tunnel R. Co. v. People, 127 111. 627. Commissioners who meet for the de- termination of the tax rate on the day fixed by statute may defer ac- tion until an adjourned meeting, and a levy made then is valid. Hodges v. Crowley, 186 111. 305. A levy of taxes for future years cannot be made nor based upon the assessment of a previous year. Chi- cago & N. W. R. Co. v. People, 193 111. 594; Clark v. Town of Nobles- ville, 44 Ind. 83; Wilcox v. Eagle Tp., 81 Mich. 271, 45 N. W. 987. In re Cloquet Lumber Co., 61 Minn. 233. "It is urged by respondent that this tax is illegal and void, for the reason that the statute requires the village council to specify the amount of tax to be levied and not the rate per cent. Laws {885, c. 145, 34 (Gen. St. 1894, 1251) provides: 'The village council shall, on or be- fore the 15th day of August, in each year, by resolution, to be entered of record, determine the amount of corporation taxes to be levied and assessed on the taxable property in such village for the current year, which shall not exceed in any one (1) year two percentum of the as- sessed valuation of such property. * * * On or before the first day of September, in each year, the vil- lage recorder shall deliver to the 316 TAXATION. 729 cise of the power, such conditions must be complied with that the tax be legal. Limitations upon the power of taxation usually county auditor a copy of all such resolutions, certified under his hand and the corporate seal of such vil- lage, and such auditor shall enter such taxes upon the tax books in the same manner as he is required to do in levying town taxes.' Gen. St. 1904, 1557 provides: 'All taxes shall be levied or voted in specific amounts and the rates per-centum shall be determined from the amount of property as equalized by the state board of equalization each year, ex- cept such general taxes as may be definitely fixed by law. The state tax shall be levied by the legislature and the rate of such tax shall be certified by the auditor of state to each county auditor on or before the first day of October, annually.' * * * Construing these two sections to- gether it is evident that it is the imperative duty of the village coun- cil to fix the specific amount of the tax to be levied, not the rate; and that It is the duty of the county auditor to calculate and ascertain the rate. This the county auditor must do after the state board of equalization has equalized the as- sessment, while the village council are required to determine the amount of money necessary to be raised before said board has acted. On behalf of the state it is urged that it should be presumed that the village council inspected the assess- ment book and ascertained the as- sessed valuation of all the taxable property in the village before they passed the resolution in question, and that they fixed the rate specified in the resoluion accordingly. Even if it should be so presumed, it does not follow that the resolution could be upheld as the assessed valuation of the village might be very ma- terially changed by the subsequent equalization. But we are of the opinion that it should not be so pre- sumed. Said section 1557 provides that 'the rates percentum shall be determined from the amount of property as equalized by the state board of equalization.' There is as much reason for presuming that the council attempted to estimate what that valuation would be after it was finally equalized, or that they took a random guess at what such valua- tion was or would be without any examination or investigation at all. Some of the members may have made such investigation and others not. To sustain this resolution would be to open the door to the most loose and reckless methods of conducting public business. Such a way of specifying the amount to be raised by taxation might be made a cover for raising a fund much larger than necessary, without call- ing public attention to the fact. The language of the statute is impera- tive, the intention plain. By speci- fying in dollars and cents the amount to be raised, it is more read- ily understood by the members of the council and the interested pub- lic; and there is less opportunity for fraud, deception or mistake." Borough of Eatontown v. Metzgar, 43 N. J. Law, 170; Hernandez v. City of San Antonio (Tex. Civ. App.) 39 S. W. 1022; Berry v. City of San Antonio (Tex. Civ. App.) 46 S. W. 273. 108 People v. Chicago & N. W. R. 730 PUBLIC REVENUES. 316 exist restricting the amount which can be legally levied or col- lected by either specifying the gross rate or amount. Officers in charge cannot exceed in this regard the limitations thus set. 109 Co., 183 111. 311; Chicago & N. W. R. Co. v. People, 184 111. 240. Offi- cers must act as a body and at the place designated by law. The court say: "The nineteenth objection is to the school tax levied in Union District number nine in the towns of Grafton and Coral. Here, again, the directors had a meeting and figured out that they wanted $250. The meeting was held in April. There was no certificate made by the board and nothing done about it, but on August 3, 1898, one of the directors got a certificate and sign- ed it, and took it to the house of the president and he signed it, and it was taken to the treasurer. The certificate was a nullity. * * * The twentieth objection was to the town tax of Seneca. * * * The evidence, however, showed that the clerk sent a certificate of some sort to the county clerk and the county clerk said it was not right and sent him another blank which he filled up but he does not know what he wrote. He was told afterward that it was not right, and he tol'd another party to tell the county clerk to cor- rect it. The certificate was changed by the county clerk and showed an erasure which was not explained. The certificate was in regular form when offered on the trial, but it had been altered. He could not author- ize the county clerk to make a cer- tificate for him, and he might just as well have sent word to the clerk to make the certificate as to alter it. The certificate upon which the levy was made was illegal." 109 Thatcher v. Chicago N. W. R. Co., 120 111. 560; Village of Hyde Park v. Ingalls, 87 111. 11. On the other hand, courts ordinarily will not interfere in the exercise of the discretion vested in municipal offi- cers to levy taxes when within the limit fixed by law. Hale v. People, 87 111. 72. The power to levy and collect special assessments exists in- dependent of any provisions as to the rate or amount of general taxes which can be legally raised. Vittum v. People, 183 111. 154; In- dianapolis School Com'rs v. Magner, 84 Ind. 67. The authority to levy a poll tax cannot be implied from a provision granting the power "to levy all taxes for the support of the schools" limited by a clause mak- ing it unlawful "to levy or assess taxes for any one year exceeding in the aggregate 20 cents on each $100 of property." City of Baltimore v. Gorter, 93 Md. 1, 48 Atl. 445; Joyner v. In- habitants of School Dist. No. 3, 57 Mass. (3 Gush.) 567; Somo Lumber Co. v. Lincoln County, 110 Wis. 286, 85 N. W. 1023. In the statute (un- der discussion) it is provided that: " 'A tax levied for any one year for municipal purposes together with the tax required to be levied for state, county, county school and school district purposes, and for de- linquent taxes for the preceding year, shall not exceed the amount of three percent of the assessed value of real and personal property of the city in that year.' * * * Counsel for the defendants contend that this is unconstitutional and also void for uncertair f y. We per- 316 TAXATION. 731 Where rates, however, or amounts, are levied in excess of those allowed by law, this condition does not usually render the whole tax void if the illegal excess can be separated from that author- ized when the excess alone is usually held void and not capable of enforcement. 110 The converse of this principle is also true that where officials act within the limits prescribed by law and within their discretionary powers, their action cannot be set aside by higher authority. 111 ceive no uncertainty in the language employed. The constitution of this state expressly gave to the legisla- ture power, and charged it with the duty 'to provide for the organiza- tion of cities and incorporated vil- lages and to restrict their power of taxation so as to prevent abuses in assessments and taxation." The re- striction in question must be deem- ed to have been made pursuant to such mandate." State v. Laramie County Com'rs, 8 Wyo. 404, 55 Pac. 451. noMcIntosh v. People, 93 111. 540; Atchison, T. & S. F. R. Co. v. Wood- cock, 18 Kan. 20; Union Pac. R. Co. v. Cheyenne County, 64 Neb. 777, 90 N. W. 917; Dal ton v. City of East Portland, 11 Or. 426; Nalle v. City of Austin, 91 Tex. 424, 44 S. W. 66; City of San Antonio v. Berry, 92 Tex. 319, 48 S. W. 496; Rowell v. Horton, 57 Vt. 31; State v. Headlee, 22 Wash. 126, 60 Pac. 126. A tax levy if too large may be reduced by the county commissioners originally making it. in Board of Education of Sacra- mento v. Trustees of Sacramento, 96 Cal. 42; Wood v. School Corp. of Tipton, 132 Ind. 206; Seward v. Rheiner, 2 Kan. App. 95; Union School Dist. v. Parris, 97 Mich. 593; State v. Lakeside Land Co., 71 Minn. 283, 73 N. W. 970. In this case the Bchool tax having been extended on the tax list, the county commission- ers undertook to regulate the levy of the same. Justice Mitchell said: "The line of argument adopted * * * is substantially as follows: The act creating the independent school district of Duluth provides that it 'shall be governed by the provisions of the general laws of the state of Minnesota governing inde- pendent school districts, not incon- sistent with the provisions of this act;' that as the special act makes no provision for the levy of taxes for any purpose, therefore we must refer to the provisions in that regard of the general laws governing independent school districts; that those laws pro- vide that 'all taxes raised by virtue of this chapter shall be levied and collected, * * *' and that as Gen. St. 1894, 1557, provides that 'coun- ty taxes shall be levied by the coun- ty commissioners,' therefore, taxes for the purposes of an independent school district must be levied by the county commissioners. It will be noticed that the provision for levying taxes in independent school districts is substantially the same as that applicable to common school districts (Gen. St. 1894, 3693) un- less the word 'special' used in the latter has some restrictive effect, a question which is not important here. * * * Counsel's argument is sound if the meaning which they attach to the word 'levy' !< * correct. 732 PUBLIC REVENUES. 317. Apportionment of taxes. 317 Tax officials may have in addition to their ordinary duties the further one of apportioning between different funds, or subsid- iary organizations, the taxes they may have previously levied or assessed; this duty, it is usually held, is not discretionary but a purely ministerial act involving no judicial functions. 112 The But there is fallacy in the argu- ment. School districts, like towns and cities, are territorially, but in no other sense, parts of the county in which they are situated. Ac- cording to the general policy of our laws, they are, as quasi municipal corporations, and for the purposes for which they are created, co-ordi- nate with, and not subordinate to, the counties in which they are situ- ated. The counties are created for certain purposes and these other quasi municipalities for entirely dif- ferent purposes. Each, within its own particular sphere, manages its own affairs exempt from the control or supervision of the other, unless otherwise expressly provided by statute. They levy their own taxes and expend them for their own pur- poses although for reasons of con- venience and economy, the county officials are generally used as mere ministerial agents to extend the tax- es on the tax lists and collect them. They all levy their own taxes in the sense of voting them or de- termining their amount, but, having no machinery of their own for their collection, they are required to cer- tify their action to the county audi- tor, whose duty it is to extend them on the tax books as part of the taxed for the current year, and thereafter the county treasurer col- lects them, the same as other taxes, and pays them over to the mu- nicipality to which they belong. No reason can be assigned why this system should not apply to school districts or independent school dis- tricts as well as to other quasi mu- nicipalities, or why their power to levy taxes for their own purposes should be subject to the veto or supervision of the county commis- sioners. And we find nothing in the statute indicating any legisla- lative intent to make them an ex- ception to the general rule." Board of Education of Kingfisher v. City of Kingfisher, 5 Okl. 82, 48 Pac. 103. us City of New Orleans v. Fisher, 180 U. S. 185. Interest cannot be collected upon funds that officials have collected and failed to proper- ly apportion until after the lapse of time when required to do so or a failure to account for the same on demand. The court say: "The city occupied the position as agent of the school board to collect and pay over school taxes, yet it may fairly be said that, under the legislation upon the subject, it was not the duty of the city to pay the money over immediately, but only as occa- sion might arise and that, as no charge of fraudulent conversion was made, interest would not commence to run until after failure to pay when required to do so, or failure to account on demand. Where in- terest is sought by way of damages for delay, courts of equity exercise a certain discretion as to its allow- ance. In view of the acquiescence 318 PUBLIC REVENUES. 733 usual principles apply regulating the performance of such acts as distinguished from those of a discretionary or judicial char- acter. 318. Tax levies ; preliminary proceedings. The proceedings involved in the levy or assessment or collec- tion of a legal tax may be roughly classed as those preliminary to the actual levy or assessment and those which are authorized as the result of such preliminary proceedings. The validity of the tax considered with reference to such pre- liminary proceedings may depend upon an official act based upon some express provision of a charter, ordinance, legislative act or constitution or the legal action of the duly qualified electors for their taxing district. 113 of the school board in the retention by the city of the interest collected on school taxes, an acquiescence in good faith so far as appears, the attitude of the city as a public cor- poration; and the lack of averment or evidence of demand prior to the filing of the bill, or of effort to com- pel an accounting, we think that in- terest should not be allowed in this case prior to May 11, 1896." Town of Fairplay v. Park County Com'rs, 29 Colo. 57, 67 Pac. 152; Sangamon County Sup'rs v. City of Springfield, 63 111. 66. In such ap- portionment if one political division is apparently unjustly discriminated against, still the statute authorizing the action, however, is not in con- travention of the constitutional pro- vision requiring taxes levied to be uniform in respect to persons and property within the jurisdiction of a taxing district. Maloy v. Madget, 47 Ind. 241. The use of moneys thus apportioned for an improper purpose can, however, be restrained. Dist. Tp. of Spencer v. Dist. Tp. of Riverton, 56 Iowa, 85; Sheridan v. Van Winkle, 43 N. J. Law, 579; Wal- lendorf v. Justices of Cole County, 45 Mo. 228; School Dist. No. 1 v. Webber, 75 Mo. 558; In re Railroad School Tax Apportionment, 78 Mo. 596. A law providing for the ap- portionment of school taxes levied on railroad property to be distribu- ted to different school districts in proportion to the number of school children is not unconstitutional as levying taxes on property in one dis- trict for the benefit of another. State v. Schnecko, 11 Mo. App. 165; Clark v. Sheldon, 134 N. Y. 333, 19 L. R. A. 138. Any action by offi- cials diverting a fund from the pur- pose designated by law is illegal; there is a personal responsibility in case of an improper use. Seanor v. Whatcom County Com'rs, 13 Wash. ,48; State v. 'Lament, 86 Wis. 563. us Weber v. Ohio & M. R. Co., 108 111. 451; St. Louis, R. I. & C. R. Co. v. People, 177 111. 78; South Park Com'rs v. First Nat. Bank, 177 III 234; Cole v. State, 131 Ind. 591, 31 N. E. 458; Constant v. Parish of East Carroll, 105 La. Ann. 286, 29 So. 728; Irvin v. Gill, 155 Pa, 8; Board 734 PUBLIC REVENUES. 313 This may be either an official order or certificate of a prescribed form covering the matters required by law 114 or it may consist of a certificate or an estimate of the probable amount or rate of taxes necessary to meet the expenditures or current expenses either of the municipality itself or of some one of its divisions or departments. 116 If the statute prescribes the form of such of Education of Ogden v. Brown, 12 Utah, 251, 42 Pac. 1109. 11* Baltimore & O. S. W. R. Co. v. People, 156 111. 189, 40 N. E. 834. In an action to set aside taxes, such a certificate is not conclusive. Chi- cago & N. W. R. Co. v. People, 171 111. 525; Reed v. City of Louisville, 21 Ky. L. R. 1636, 61 S. W. 11; Sage v. Stevens, 72 Mich. 638, 40 N. W. 919; Township of Bangor v. Smith Transp. Co., 106 Mich. 223, 64 N. W. 28; Muskegon v. Martin Lumber Co., 86 Mich. 625; Port Huron Tp. v. Potts, 78 Mich. 435; Burlington & M. R. R. Co. v. Lan- caster County Com'rs, 12 Neb. 324; State v. Elba Sup'rs, 34 Wis. 169. The notice, however, should be in writing. us People v. Lodi High School Dist, 124 Gal. 694; People v. Knopf, 171 111. 191; Chicago & N. W. R. Co. v. People, 171 111. 249. The failure to comply with directory provisions only will not invalidate a tax de- pending for its legality upon a cer- tificate, not filed as provided by law. Ritz v. Tannehill, 69 Iowa, 476; State v. City of Shreveport, 33 La. Ann. 1179; Police Jury of Pointe Coupee v. Bouanchaud, 51 La. Ann. 860; City of Baltimore v. Gorter, 93 Md. 1, 48 Atl. 445; Turnbull v. Al- pena Tp., 74 Mich. 621, 42 N. W. 114. Auditor General v. McArthur, 87 Mich. 457. The burden of proof is upon the one attacking the correct- ness and legality of such a certifi- cate or statement. Boyce v. Peter- son, 84 Mich. 490; Adams v. Capital State Bank, 74 Miss. 307, 20 So. 881; State v. Phipps, 148 Mo. 31, 49 S. W. 865. A correct estimate may be substituted for an imperfect one if done within the time fixed by law. The proceedings are based upon such statement as filed, and errors in the old one will not affect the tax levy. Kansas City, Ft. S. & M. R. Co. v. Chapin, 162 Mo. 409, 62 S. W. 1000; Engstad v. Dinnie, 8 N. D. 1, 76 N. W. 292. "The measure we are con- sidering, adopted December 18th, as- sumed to appropriate $50,000 out ot the general fund of the city for the purpose of paying salaries, and the incidental expenses of the city gov- ernment, including the payment of city orders; and also, incidentally, for the purpose of 'defraying the ex- pense of erecting and completing and installing an electric light plant for said city, and the operating ex- penses of the same during said fiscal year.' From this language it ap- pears that, while the city council attempted to appropriate a gross amount ($50,000) from the general fund of the city for certain purposes mentioned, it does not specify the sum or amount which each or either purpose it to receive. From this language it is impossible to deter- mine how much of this appropria- tion may be expended for any one purpose named in the enactment. We arc far from ho 1 ding that in an 318 TAXATION. 735 return, order, certificate or estimate, it can, if not in this form, furnish no basis for subsequent legal proceedings. 116 If, however, appropriation out of the general fund of a city to meet the ordinary expenses incident to carrying on the city government each item of expense must be anticipated, and stated in dollars and cents in the appropriation bill. No such rigid and fanciful requirement as that suggested is made by the law, and we certainly shall not attempt to read Into the statute by construction any such embarrassing rule. But a costly improvement such as that contemplated in the contracts in question does not fall within the operating expenses of a city organ- ized under the Code. The statute differentiates improvements from ordinary expenses, and places them in a class by themselves. The stat- ute meets this feature of the case by an express provision which for- bids the city council or any officer of the city from adding an expendi- ture upon any 'improvement' of the city over and above the amount named in the annual appropriation bill. It declares: 'And no expendi- ture for an improvement to be paid for out of the general fund of the corporation shall exceed in any one year the amount provided for such improvement in the annual appro- priation bill.' This language im- ports that city improvements, such as expensive public buildings, must be provided for in terms and in amount by an ordinance embracing the annual appropriations of the funds of the city. When so men- tioned in the annual appropriations the law, as has been shown, further requires the council to levy the sum appropriated upon the taxpayers of the city, and then no other expendi- tures therefor can be made until an additional sum is appropriated and levied in the succeeding fiscal year, except by the express sanction of the voters. We can think of no greater abuse of corporate power by the council of a city under the 'restric- tions of said charter than would be involved in expending the funds of a city in the erection of costly pub- lic buildings and improvements without either passing an ordinance authorizing the construction of such improvements, or an ordinance ap- propriating any specific amount to be expended in their construction. The notion can never be tolerated that a city council may, without let or hindrance, from the law or the taxpayer, and at its election, pro- ceed to deplete the general fund of the city by withdrawing therefrom sums of money indefinite in amount with which to build costly public improvements which improvements have had no legal authorization either from the council or the tax- payers and for which no specific sums of money have ever been ap- propriated or levied. Once concede this power in the council and it fol- lows as a sequence that any city council may exhaust the general funds at pleasure by expenditures for public improvements which have no legal authorization and for the construction of which no funds have been provided. Fortunately, no such construction of the law is permissible in view of its very ex- plicit provisions to the contrary." Powell v. St. Croix County Sup'rs, 46 Wis. 210. i" State v. Gadsden County Com'rs, 17 Fla. 418; Peoria, D. & E. 736 PUBLIC REVENUES. 318 no form is prescribed by law, one which follows substantially the statutes and showing, if necessary, the authority, is consid- ered sufficient. 1 " The statutes or constitution may provide the time and the manner in which the official action in the preceding paragraph shall be taken. All the requirements or provisions of the law for such preliminary matters as well as the manner or time 118 in R. Co. v. People, 141 111, 483, 31 N. E. 113; St. Louis, R. I. & C. R. R. Co. v. People, 147 111. 9; Chicago & A. R. Co. v. People, 163 111. 616; Chicago & A. R. Co. v. People, 171 111. 544; St. Louis R. I. & C. R. Co. v. People, 177 111. 78. A certificate forms the basis of action by the tax levying officers. People v. Chicago & N. W. R. Co., 183 111. 311; St. Louis & S. F. R. Co. v. Gracy, (Mo.) 28 S. W. 736. If information requir- ed by the statute can be ascertained from calculations on the data given in the estimate, this will be suffi- cient. Lamb v. Hurlf, 38 N. J. Law, 310; Corrigan v. Duryea, 40 N. J. Law, 266. The certificate of a district clerk should show the authority of the electors authorizing the action. Townsend v. City of New York, 16 Hun (N. Y.) 362; Thomson v. Har- ris, 88 Hun, 478, 34 N. Y. Supp. 885; Arnold v. Juneau County Sup'rs, 43 Wis. 627. 117 Gill v. Dunham (Cal.) 34 Pac. 68; Chicago & N. W. R. Co. v. Peo- ple, 184 111. 240. The omission of what is "held a surplusage" does not affect the legality of a tax. Robbins v. Barren, 33 Mich. 124; Boyce v. Auditor General, 90 Mich. 314, 51 N. W. 457; Boyce v. Sebring, 66 Mich. 210. Where the certificate contains facts from which the items can be ascertained, 'a failure to specify these will not invalidate it or the proceedings thereunder. State v. West Duluth Land Co., 75 Minn. 456, 78 N. W. 115. The rule also applies to a provision of the statute which is directory merely and not mandatory. Kansas City, Ft. S. & M. R. Co. v. Chapin, 162 Mo. 409, 62 S. W. 1000. The esti- mate need not recite that the levy was authorized by the board. Peo- ple v. Wright, 68 Hun (N. Y.) 264. usHodgkin v. Fry, 33 Ark. 716; Cowgill v. Long, 15 111. 202; Gage v. Nichols, 135 111. 128, 25 N. E. 672, following Mix v. People, 72 111. 241. A legal tax levy cannot be baser! on a certificate filed after the date fixed by statute. The court say: "It is next urged that the local tax for town, school, road and bridge pur- poses and the tax for the payment of interest on registered bonds, were not levied in the manner and with- in the time prescribed by law, and are, therefore, void. Section 122, Laws 1872, p. 31 provides that 'the proper authorities of towns, town- ships, districts and incorporated cities, towns and villages shall an- nually, on or before the second Tues- day in August, certify to the county clerk the several amounts which they require to be raised by taxa- tion.' In this case, the certificates were not filed until after the time specified in the act had expired. The language of the statute is plain and entirely unambiguous. It will 318 TAXATION. which action shall be taken are considered technical and manda- tory in their nature and as such construed strictly and as limi- tations and restrictions upon the power of taxation whether as exercised by the sovereign itself or by one of its delegated agencies. 119 The power is not possessed as a matter of original bear no construction. But it is urged that the law is merely direc- tory. Had the General Assembly intended to permit the filing of the certificate at any time before the collector's books were delivered to him by the clerk, why not say so and not have specified that the act should be done on or before a speci- fied day? They must be presumed to have known that, from careless- ness or want of information, cases would occur in which the certificate would not be filed, and yet they have made no provision for such a con- tingency. It is said no reason ex- ists why the levy should be made and returned by the second Tuesday in August. There may be the most cogent reasons. If any illegality should exist in the rate of the tax, or the manner of its levy, or want of power to levy the tax, either be- cause the law has not authorized it, or because it is not for an author- ized purpose, or if, from any other reason, the tax is illegally levied, the taxpayers should have a rea- sonable time within which to take steps to prevent its extension on the collector's books. Again, to enable the books to be properly prepared, the clerk must have a reasonable time for their preparation and the extension of the various taxes after the levy is made. If the officers have until the time the books are delivered to the collector to make and return their levy, there would, to render the act effective, be a duty Abb. Corp. 47. devolving on the clerk to extend the tax on the collector's books. The General Assembly has required the assessor's books to be returned by a specified day, and all taxes to be levied by a designated period, that the clerk may after that time, and before the day he is required to deliver the books, have time to prepare them and extend all the taxes. If then, these local officers may legally at any time, make their levy, and the clerk is bound to re- gard and act upon it, then they have it in their power to hinder, delay and obstruct the collection of the entire revenue, by their negligence or incompetency. Such a power to obstruct the collection of all taxes, in the municipality making such a levy, cannot exist, nor was it intend- ed that it should. The only remedy, as the law now exists, is, for the people to select competent officers, who are faithful in the discharge of their duties, and when they are not, hold them responsible for the neg- lect of such a plain and obvious duty of the existence of which we cannot suppose any such officers could be ignorant." Michigan Land & Iron Co. v. Republic Tp., 65 Mich. 628, 32 N. W. 882. us Harding v. Bader, 75 Mich. 316, 42 N. W. 942; Auditor General v. McArthur, 87 Mich. 457; Pike v. Hanson, 9 N. H. 491. Tax officials should be duly sworn as provided by law before they can legally ex- ercise their official duties. 738 PUBLIC REVENUES. 318 right by a subordinate public corporation but only as a dele- gated power; a narrow and strict, not a broad construction, therefore, is always given to acts or authority delegating the performance of a power. The general effect of the principles thus stated is to render all acts or proceedings void unless they are executed in the manner, by the agency and at the time pre- scribed by law. 120 for the highway expenses of the en- suing year. If in the preceding year the appropriation made was insufficient to keep in repair the highways and bridges, the proper procedure for the highway commis- sioner, and the only way in which he could create an obligation against the town, was to apply under the provisions of section ten of the highway law, to the town board, for its consent to make the improve- ments required; and section eleven of the act provides a method by which he could obtain payment therefor. It is not claimed that the commissioner obtained the consent of the town board to make the im- provements in the preceding year for which he had insufficient funds to pay. We are unable to find in the highway law or other statutes of the state, any provision author- izing a highway commissioner to create a debt against a town, except in the manner provided in the tentn section of the highway law, unless the amount expended by the com- missioner the previous year was a legal claim against the town, he had no authority to retain the money of the town raised to keep in repair the highways and bridges therein for the ensuing year, nor had the town board authority to allow his claim. We think it is clear that under the provisions of the high- way law, the money raised in Janu- R. Co, v. People, 138 111. 303, 28 N. E. 134. The filing of the required preliminary lists or certificates will be presumed. Wil- liams v. Inhabitants of School Dist. No. 1, 38 Mass. (21 Pick.) 75. A directory provision as to the time of taking certain official action con- strued not as a limitation upon the authority to act. Michigan Land & Iron Co. v. Re- public Tp., 65 Mich. 628, 32 N. W. 882; In re Wood, 24 Misc. 561, 54 N. Y. Supp. 30; People v. Clark, 45 App. Div. 65, 60 N. Y. Supp. 1045; Squire v. Cartwright, 67 Hun (N. Y.) 218. "Section nineteen of the highway law (c. 568, Laws 1890) provides that commissioners of high- ways shall also make at the second meeting of the town board in each year 'a statement of the improve- ments necessary to be made on such highways and bridges, and an esti- mate of the probable expense there- of, beyond what the labor to be as- sessed in that year will accomplish; a duplicate of which shall be de- livered by the commissioners to the supervisors of the town, who shall present such duplicate statement to the board of supervisors, who shall cause the amount so estimated, not exceeding five hundred dollars in any one year, to be assessed, levied and collected in such town in the same manner as other town char- ges.' This is intended to provide 319 TAXATION. 739 319. Mode of levy and assessment. Upon the proper performance of the preliminary steps as re- quired by law and briefly discussed in the preceding section, the power then becomes vested in public officials to make the actual levy and assessment. This, as well as the preliminary proceed- ings, must be done in the manner or mode prescribed by law, otherwise the power does not exist. 121 The constitution of the state, 1 - 2 the charter of a particular municipal corporation, 123 the general laws of the state, 124 or ordinances passed by subordinate public corporations, 125 direct in detail the steps necessary to be done and the manner in which they shall be taken. ary, 1899, for improvements to be made on the highways of the town, could not legally be expended or used to pay expenses made by the commissioner on account of the highways and bridges beyond the appropriation of the prior year. Such expenditure was unauthorized and created no legal claim against the town." Citing People v. Audi- tors of Esopus, 74 N. Y. 310; Peo- ple v. Warren County Sup'rs, 82 Hun (N. Y. ) 298; People v. Ulster County Sup'rs, 93 N. Y. 397. 1-1 Milliard v. Bunker, 68 Ark. 340, 58 S. W. 362; People's Nat. Bank v. City of Ennis (Tex. Civ. App.) 50 S. W. 632; City of San Antonio v. Berry, 92 Tex. 319. 122 Street v. Craven County Com'rs, 70 N. C. 644; Brothers v. Currituck County Com'rs, 70 N. C. 726. 123 Snell v. City of Ft. Dodge, 45 Iowa, 564. 12* People v. Macoupin County Court, 54 111. 217; People v. Wallace, 70 111. 680; People v. Knopf, 171 111. 191. Construing Rev. St. 111. 1874, c. 139, art. 4, 4 and art. 13, 7, as affected by constitution, art. 9, 9 and 10; Wood v. School Corp. of Tipton, 132 Ind. 206. Constru- ing Rev. St. Ind., 1881, 4467-4468; State v. Aitkin, 62 Neb. 428, 87 N. W. 153. 125 City of San Luis Obispo v. Pet- tit, 87 Cal. 499; O'Neil v. Tyler, 3 N. D. 47, 53 N. W. 434. "We will first consider the validity of the al- leged tax of 1884, for which the city treasurer sold the property on 1885. At that time the amended charter of the city of Fargo, adopted in March, 1881, was in force. Among other provisions of the charter were the following: 'Section five. The powers hereby granted shall be ex- ercised by the mayor and council of the city of Fargo as hereinafter set forth.' * * * 'Sec. thirteen. All ordinances of the city shall be pass- ed pursuant to such rules and regu- lations as the mayor and council may prescribe: provided that upon the passage of all ordinances the yeas and nays shall be entered upon the record of the city council,' etc. Section twelve declares that the 'mayor and council' of the city of Fargo 'shall have power to levy and collect taxes for general purposes.' Section four of an ordinance not pleaded, but offered in evidence, also confines the power in express terms upon the 'mayor and council' 740 PUBLIC REVENUES. 3ZO 320. Loss of power. The authority to levy taxes may exist as an original or direct power and again as one delegated by some superior body or or- ganization. The power is then exercised under authority of written law and when once given becomes vested to the extent that it cannot be lost through its misuse or abuse, or the neglect to exercise it by the officials to whom the right is given. 126 Gen- to 'levy the necessary taxes' on the 'first Monday of September.' The answer expressly avers that the sev- eral acts pleaded by the defendant as constituting the assessment, equalization and levy of the taxes of 1884 and embracing also the sale of plaintiff's property by the city treasurer in 1885 for such taxes, and the execution and delivery of the tax certificates and tax deed, were all and singular done and per- formed under and by virtue of 'chapter six of the ordinances of the city of Fargo.' At the trial plain- tiff claimed that no such ordinances existed, because the same was never legally enacted or adopted by the city council, for the reason that upon the passage of the ordinance by the council the 'yeas and nays were not entered upon the record of the city council' as was required to be done by section thirteen of the city charter. We think the evi- dence fully sustained plaintiff's con- tention on this point and the trial court found it to be true, as a mat- ter of fact, that the yeas and nays were not entered in the record of the city council upon the passage of the ordinance and that said rec- ord contains no entry of or con- cerning the passage of said ordi- nances, except as follows: 'April 19th, 1881, council met pursuant to adjournment. Revised ordinances were accepted and old ones repeal- ed.' Upon this record we are com- pelled to hold * * * that the al- leged ordinance was not legally pass- ed or adopted and hence never be- came a valid enactment. * * * The proof offered wholly fails to show a valid levy of the city tax in question and we therefore rule that the alleged city tax for which the lots were sold was void." State v. Hoff (Tex. Civ. App.) 29 S. W. 672; Peoples' Nat. Bank v. City of Ennis (Tex. Civ. App.) 50 S. W. 632. 126 Himmelmann v. Cofran, 36 Cal. 411; Lappin v. Nemaha County, 6 Kan. 403; Kansas City, Ft. S. & G. R. Co. v. Tontz, 29 Kan. 460. A tax not held invalid because of a failure of the proper recording officers to enter the same upon the tax rec- ords. City of Bangor v. 'Lancey, 21 Me. 472; Libby v. Burnham, 15 Mass. 144; Howell v. City of Buffalo, 15 N. Y. 512; Woodruff v. Fisher, 17 Barb. (N. Y.) 224; People v. Haines, 49 N. Y. 587. People v. Feitner, 65 App. Div. 224, 72 N. Y. Supp. 641, following same case in 61 N. Y. Supp. 432. In this case the petitioner claimed the board had lost the right to en- force the assessment as originally made because an officer of the board had made certain representations to it as to the time he would have to ask for a review of the assessment. The court said: "It is stated by the petitioner that the secretary of the 321 TAXATION. 741 erally, however, a single exercise of the taxing power is deemed to exhaust it for the time being, especially when the power can only be legally exercised at regular recurrent intervals. 127 No extended discussion can be given within the limits of this work which will explain in detail the powers of the various agencies to whom may be given the delegated power of levying taxes. It varies with the laws of each state and in all cases with the dis- similar charter provisions of many and different municipal organ- izations. 128 321. Errors in proceedings. Tax laws as ordinarily passed and changed by legislative bod- ies from session to ^session are often incongruous, inconsistent board informed it that the assess- ment had not been fixed on the 6th day of April, 1900, and that the tax against the petitioner and other cor- porations would not be made out until May 1, 1900. The return of the commissioners is conclusive upon this subject. If the board in fact made the assessment and de- posited the books for inspection of the public, as the return says they did, any statement made by the sec- retary, however erroneous, could not have the effect of invalidating such act. As to the time when it is said that the secretary stated that the assessment would be finally made up, it was correct as a statement of the law, as, in effect, it was saying that on May 1, 1900, the books would be closed and such is the require- ment of the law." Oliver v. Cars- ner, 39 Tex. 396. But the power as vested in certain officials is exhaus- ted by their action levying taxes for the year. Subsequent officials can- not relevy the same tax for that same year. 127 Vance v. City of Little Rock, 30 Ark. 435; State v. Van Every, 75 Mo. 530; Cummings v. Fitch, 40 Ohio St. 56; Oregon Steam Nav. Co. v. City of Portland, 2 Or. 81; Oliver v. Carsner, 39 Tex. 396; Dean v. Luf- kin, 54 Tex. 265. 128 City of Tampa v. Mugge, 40 Fla. 326, 24 So. 489; Hopkins v. People, 174 111. 416, 51 N. E. 757, construing Rev. St. 111., c. 139, art. 4, 3; Fisher v. People, 84 111. 491. "The doctrine is certainly * * * that unless the power to tax clearly appears from the act it cannot be ex- ercised; but we are not to pervert language from its ordinary and plain signification and resort to a forced and unnatural interpretation to come to the meaning of the act. We are to presume that words in general use were understood and used in their ordinary sense, where nothing to the contrary expressly appears, and if, from an examina- tion of all the language applicable to the subject, it is clear it was in- tended the power of taxation should be exercised, it is sufficient." Smith v. City of Louisville, 12 Ky. L. R. 337, 14 S. W. 349, construing act of Kentucky May 12, 1884; Sprague v. Abbott, 58 Vt. 331. 742 PUBLIC REVENUES. 321 and complicated, resulting in many errors unintentionally made by officers to whom is charged the duty of administering them. The question then becomes important of the effect of such errors upon tax proceedings. The general rule applies that these pro- visions or statutory requirements are mandatory in their nature and because as being the outward manifestation of the sovereign power which in its result is a confiscation of property should be construed technically and strictly. 129 The error may be one im- material in its character and not affecting the justice of the tax, or the proceedings may substantially follow the direct provisions of the law. They will then be held valid and the taxes levied ca- pable of collection or enforcement. 130 120 Chicago & A. R. Co. v. People, 171 111. 544; People v. Chicago & N. W. R. Co., 183 111. 311; Cooley, Taxation, p. 266. "The question re- garding the revenue laws has gen- erally been whether or not they should be construed strictly. To ex- press it in somewhat different lan- guage, the question is whether, when a question of doubt arises in the application, of a statute to its subject-matter or supposed subject- matter, the doubt is not to be solved in favor of the citizen, rather than in favor of the state upon whose legislation the doubt arises, and whether such solution is not most in accord with the general prin- ciples applied in other cases. Strict construction is the general rule in the case of statutes which may di- vest one of his freehold by proceed- ings not in the ordinary sense ju- dicial, and to which he is only an enforced party. It is thought to be only reasonable to intend that the legislature, in making provision for such proceedings, would take un- usual care to make use of terms which would plainly express its meaning, in order that ministerial officers might not be left in doubt in the exercise of unusual powers, and that the citizen might know ex- actly what were his duties and lia- bilities. A strict construction in such cases seems reasonable, because presumptively the legislature has given in plain terms all the power it has intended should be exercised. It has been very generally supposed that the like strict construction was reasonable in the case of tax laws." iso Chicago & N. W. R. Co. v. Peo- ple, 174 111. 80. Errors or informal- ities not affecting the tax itself may, under the proper authority, be cor- rected by the person through whose neglect the same were occasioned. City of Somerset v. Somerset Bank- ing Co., 22 Ky. L. R. 1129, 60 S. W. 5. Where the authority exists, a defective tax levy may be canceled and a proper levy subsequently made if done within the time fixed by law. George v. Inhabitants of Second School Dist., 47 Mass. (6 Mete.) 497; City of Baltimore v. Gorter, 93 Md. 1, 48 Atl. 445. An ordinance levy- ing a tax containing surplusage is not thereby rendered void. John- son v. Finley, 54 Neb. 733, 74 N. W. 1080. In this case the trial court held the tax valid. It was urged 321 TAXATION. 743 The doctrine of ratification also applies in connection with this subject, that if an act which has been delegated for its per- on appeal that the decision should be reversed because the ordinance under which the tax was levied was not proved in the method given by the statute. Overruling this as an immaterial point, the court said: "The argument of the appellant is that the enactment or existence of this ordinance could be proved and proved only, in the manner pro- vided by section 124 of said chapter 12a, which is as follows: 'All ordi- nances of the city may be proven by the certificate of the clerk under the seal of the city and when print- ed or published in a book or pamph- let form, and purporting to be print- ed or published by authority of the city council, shall be read and re- ceived in all courts and places with- out further proof.' The ordinance in question it appears had not been printed or published in book or pamphlet form; at least it was not attempted to prove the ordinance by the introduction of such book or pamphlet. Nor was it attempted to prove the ordinance by the certifi- cate of the city clerk under the seal of the city. But we do not under- stand that the existence or passage of an ordinance of a city of the metropolitan class can be proved only in the method provided by said section 124. Certainly, the original ordinance and proceedings of the city council, showing its passage and approval are as competent evi- dence that the ordinance was pass- ed and approved as a certificate of the city clerk under the seal of the city, that the ordinance attached to the certificate was a copy of the original ordinance on file in his office. We think that when a party desires to prove the existence of an ordinance of a city of the metro- politan class, he may pursue the method pointed out by said section 124, or he may resort to common- law methods of proof." Citing, Clough v. State, 7 Neb. 320; Orford v. Benton, 36 N. H. 395; Henderson v. Hughes County, 13 S. D. 576, 83 N. W. 682; Rhomberg v. McLaren, 2 Tex. Civ. App. 391, 21 S. W. 571. isi Williams v. Albany Sup'rs, 122 U. S. 154; Shepardson v. Gillette, 133 Ind. 125, 31 N. E. 788; Atchison, T. & S. F. R. Co. v. Voodcock, 18 Kan. 20; Crittenden v. Robertson, 13 Mich. 58; State v. Richards, 42 N. J. Law, 497; Squire v. Cart- wright, 67 Hun, 218, 22 N. Y. Supp. 899. "The effect of the confirmatory resolutions of September 14, 1891, re- mains to be considered. One of these assumed to confirm as an en- tirety, the tax and warrant of Octo- ber 11, 1890. Still the electors could not by way of ratification do any more than they could have done at the time, and they, in October, 1890, had no right to say that certain items of expenditure might be rais- ed by special tax, in violation of the provisions of the statute, which re- quired them to be raised, if at all, by the annual tax, and after certain formalities. The language of Judge Denio, in Peterson v. City of New York, 17 N. Y. 449, is applicable. At page 454 he says: 'No sort of ratification can make good an act without the scope of the corporate authority, so, where a charter or a statute binding upon the corpora- tion has committed a class of acts 744 PUBLIC REVENUES. 322 formance to some other person or body is improperly done, that body or organization possessing the original power can, in the proper manner, ratify its irregular performance. The ratification relates back and renders the act of equal force and legal effect as though done at the proper time and in the proper manner. 131 322. The power; when exercised. In delegating to subordinate bodies or officials the right to ex- ercise the power of taxation, a time is usually fixed within which certain acts shall be done. The failure to perform these within or at the prescribed time is generally held to result in a loss by that subordinate official or organization of the right to do the par- ticular act authorized, 132 or, to state the doctrine in another way, if the performance of any act relating to or connected with the exercise of the power of taxation is limited to a prescribed time, the failure to act within or at that time by the delegated body results in a loss of the right. However, when such provisions of the law are held to be directory merely, not mandatory in their character, the failure to follow their terms will not render invalid proceedings based upon such action. 133 to particular officers or agents other 111. 241; Wabash, St. L. & P. R. Co. than the general governing body, or v. Binkert, 106 111. 298; Keokuk & where it has prescribed certain for- H. Bridge Co. v. People, 161 111. 132; malities as conditions to the per- Town of Williamsport v. Kent, 14 formance of any description of cor- Ind. 306; Huntsman v. City of La porate business, the proper func- Porte, 15 Ind. 357; Clark v. Town tionaries must act, and the desig- of Noblesville, 44 Ind. 83; Fahlor v. nated forms must be observed, and Wells County Com'rs, 101 Ind. 167; generally no act of recognition can Standard Coal Co. v. Independent supply a defect in these respects.' " Dist. of Angus, 73 Iowa, 304, 34 N. East Tennessee, V. & G. R. Co. v. W. 870; Dollar Sav. Bank v. Ridge, City of Morristown (Tenn. Ch. App.) 79 Mo. App. 26; Walker v. Edmonds, 35 S. W. 771. The rule also applies 197 Pa. 645, 47 Atl. 867. If, how- to the right to correct a defective ever, the provision requiring action assessment and levy. to be taken within or at a certain 132 Board of Education of San time is directory merely, such ac- Diego v. Common Council of San tion may be then taken later. Diego, 128 Cal. 369; Harper v. El- isa Tousey v. Bell, 23 Ind. 423. berton Com'rs, 23 Ga. 566. Where "The ground upon which it is no time limit is fixed, the power sought to reverse the ruling of the may be exercised upon any day. court, so far as the same relates to Gage v. Nichols, 135 111. 128, 25 N. the individual taxes of Tousey, is E. 672, following Mix v. People, 72 that the assessment was not rcadf 323 TAXATION. 745 323. The duty obligatory The use of the power as well as its mode of exercise is usually considered obligatory when delegated to subordinate officials or until the 4th day of June. The 21st section of 'the act for the in- corporation of cities,' etc., provides that 'the assessor shall, before the first Monday in May in each year, unless otherwise directed by the common council, make out, etc. Said assessment shall be completed at the time above indicated and re- turn made thereof to the clerk of the city, unless by an order of the common council, further time be given him.' The council on the 7th of May passed an order extending the time for completing the assess- ment. It is insisted, however, that such action could only be taken by the council before the first Monday in May and that any order made after the time fixed by law for the return was void. In considering this question we will be aided in de- termining what power the legisla- ture has conferred upon the com- mon council in the section by look- ing at the intent and purpose of the enactment. The first object plainly was to fix 'the date before which the assessment should, as a rule, be completed. The second ob- ject was to place a discretionary power somewhere to extend that limit when circumstances might re- quire it. Keeping these objects in view, of what moment is it whether this discretionary power is exer- cised before or after the first Mon- day in May? The legal presump- tion would be that the assessor would comply with the direction contained in the section, and com- plete his list by the day named; and until the limit has been passed, the council may not be able to de- termine as to the necessity of such further grant of time. This power is to be exercised or not, at the dis- cretion of the common council, and the court should grant the latest moment of time within the liberal spirit and intent of the act, to en- able full information to be had, and indeed absolute certainty attained of the necessity requiring its exer- cise. This power is clearly granted to the council for remedial pur- poses. It places within their hands the power to grant relief when from any cause the officer cannot comply with the direction given in the statute. Such a grant should be construed largely and beneficially, so as to advance the remedy. But the provision of the statute itself fixing the time would be but di- rectory, were it not that it requires action on the part of the council to extend the time; and certainly when they have attempted to exer- cise that power a more strict rule should not be applied than would have prevailed in the absence of any grant of power to enlarge the time." Citing Gale v. Mead, 2 De- nio (N. Y.) 160. Perrin v. Benson, 49 Iowa, 325; Fay v. Wood, 65 Mich. 390, 32 N. W. 614; Nixon v. City of Biloxi, 76 Miss. 810, 25 So. 664. Action may be taken at an adjourned meeting concerning tax matters which were properly before the regular meeting though no express provision is made in the statute for a recess or ad- PUBLIC REVENUES. 324 organizations; it is to be exercised not at the will or discretion of such delegated agent but in the manner and at the time set by law. 134 The performance of the duty can be required and com- pelled. Officers cannot through a failure to perform acts com- manded by law, either deprive the organization which they repre- sent of the right to exercise the power of taxation or affect in- dividuals whose contract or other obligations would be defeated, impaired or destroyed by a failure to levy taxes. 135 324. Equalization of tax levies. In each of the states will be found constitutional provisions re- lating to and limiting the exercise of the power of taxation. The clause as found in the constitution of the state of Minnesota is illustrative in its character. 130 The burden of these constitutional provisions is equality and uniformity. Taxation to be valid must be exercised upon this principle. To secure this result, we have boards of equalization or review for the correction and equaliza- tion of assessments and of taxes levied and assessed either as against specific individuals or property. The powers of such board within their authority are generally plenary and in the ab- sence of fraud not subject to review by the courts except as pro- journment. Hayes v. Hanson, 12 N. Sup'rs, 49 Hun, 32, 1 N. Y. Supp. H. 284; Scammon v. Scammon, 28 460. N. H. 429. ise Minnesota Const, art. 9, 1. is* State v. Sullivan, 51 111. 486. The constitutional provision of Min- "This was an application for judg- nesota is in part as follows: "All ment for taxes. * * * Having taxes to be raised in this state shall been properly levied, so far as ap- be as nearly equal as may be, and pears, In both towns, it was tne all property on which taxes are to duty of each to proceed with the be levied shall have a cash valua- collection. If Saunamin has failed tion and be equalized and uniform to perform its duty, parties inter- throughout the state; provided, that ested can have their remedy, but the legislature may, by general law its failure is no reason why the au- or special act, authorize municipal thorities of the town of Sullivan corporations to levy assessments for should not be permitted to collect local improvements upon the prop- the tax in that town." People v. erty fronting upon such improve- Lockport Sup'rs, 49 Hun, 32, 1 N. ments, or upon the property to be Y. Supp. 460. benefited by such improvements, or iss Hart Tp. v. Oceana County, 44 both, without regard to a cash val- Mich. 417; People v. 'Lockport uation, and in such a manner as the legislature may prescribe." 325 TAXATION. 747 vided by law. 137 Taxes are void which are levied without, either as to the assessment or the tax proceedings proper, being brought before the proper body for the purpose of equalization and cor- rection. 325. Taxpayers' rights. To protect, however, the individual from the exercise of the power in an arbitrary or fraudulent manner, the right is given to appeal to the courts for the correction of abuses and a satis- faction of the injuries he may have suffered. 138 The right to 137 City of Tampa v. Mugge, 40 Fla. 326, 24 So. 489; Stewart v. Collier, 91 Ga. 117, 17 S. E. 279; People v. Chicago, B. & Q. R. Co., 164 111. 506; Kinsey v. Sweeney, 63 Iowa, 254; Fonda v. City of Louis- ville, 20 Ky. L. R. 1652, 49 S. W. 785; Wakeley v. City of Omaha, 58 Neb. 245, 78 N. W. 511. If notice of a meeting of such a board is re- quired by law to be published, this is an indispensable prerequisite to legal action. Streight v. Durham, 10 Okl. 361, 61 Pac. 1096. Taxpayers are char- ged with knowledge of statutory provisions fixing a time of meeting for such boards of equalization and correction. Scollard v. City of Dal- las, 16 Tex. Civ. App. 620, 42 S. W. 640; Board of Education of City of Ogden v. Brown, 12 Utah, 251, 42 Pac. 1109; Pierce County v. Spike, 19 Wash. 652. iss Drake v. Phillips, 40 111. 388. Where an injunction has been grant- ed restraining a tax collector from collecting an illegal tax, the town which he represents is liable for the costs in the case; there is no personal liability on the part of the collector. Newton v. Roper, 150 Ind. 630; Meyer v. Dubuque County, 43 Iowa, 592. The remedy for an erroneous assessment is by application to the board of equalization, not by man- damus, to compel county officials to correct errors alleged. Johnson v. City of New Orleans, 105 La. 149, 29 So. 355. Such a proceeding, however, must be brought in good faith to entitle a taxpayer to relief. New Orleans, M. & C. R. Co. v. Dunn, 51 Ala. 128. A threatened usurpation of power by corporate authorities or the violation of the duty imposed by law whereby the burden of taxation will be increased may be prevented by a court of equity upon application of a tax- payer within the district. Shaw v. Inhabitants of Becket, 61 Mass. (7 Cush.) 442; Parsons v. City of Northampton, 154 Mass. 410, 28 N. E. 350; Welch v. City of Bos- ton, 126 Mass. 442, following Ban- croft v. City of Cambridge, 126 Mass. 438; Barnstable Sav. Bank v. City of Boston, 127 Mass. 254; Chau- venet v. Arundel County Com'rs, 3 Md. 259; Steffes v. Moran, 68 Mich. 291, 36 N. W. 76. The interest of a taxpayer in a tax improperly lev- ied may be so small as to defeat his right to maintain a bill re- straining the payment of the ex- 748 PUBLIC REVENUES. 325 review the levy and assessment of taxes for the purpose of cor- recting such errors or irregularities may be vested in a court legally authorized in this respect but performing in addition to such duties others of an administrative or executive char- acter. This body is generally considered quasi judicial in its character and in the performance of its duties requiring the ex- ercise of judgment and discretion. 139 The usual rules which ap- penditufe to pay which the tax was tion is void because it deprives him levied. of his property without due process State v. Weyerhauser, 68 Minn, of law in violation of the 14th 353; State v. Hannibal & St. J. R. amendment of the constitution of Co., 135 Mo. 618. The fixing of too the United States, low a rate is not a valid objection Town of Grand Isle v. Town of to the validity of a local school tax. Milton, 68 Vt. 234, 35 Atl. 71. A Normand v. Otoe County Com'rs, judgment entered by stipulation 8 Neb. 18; Kip v. City of Paterson, does not necessarily preclude one 26 N. J. Law (2 Dutch.) 298; In re of the parties from subsequently Wood, 24 Misc. 561, 54 N. Y. Supp. raising the question of the legal- 30; Middleton v. Robbins, 54 N. J. ity of the tax levied as the result Law, 566; Benson v. Inhabitants of of a judgment. Bloomfield Tp., 58 N. J. Law, 491; "9 St. Louis Bridge & T. R. Co. Haley v. Whitney, 53 Hun (N. Y.) T. People, 127 111. 627; People v. 119; People v. Hatch, 60 Barb. (N. Cook County Com'rs, 176 111. 576; Y.) 228. An appeal will not lie Collins v. Davis, 57 Iowa, 256; Hud- to the county judge from the re- son v. Police Jury of Claiborne Par- fusal of a school district meeting to ish, 107 La. 387, 31 So. 868; State vote a tax requested for the reim- v. Byers, 67 Mo. 706; State v. Kan- bursement of a trustee. sas City, St. J. & C. B. R. Co., 149 City of Columbia v. Beasly, 20 Mo. 635. The power vested in the Tenn. (1 Humph.) 232; Smith v. county court by Rev. St. 1889, City of Nashville, 88 Tenn. 464, 7 7732, 7731, to ascertain the levy, L. R. A. 469; Berry v. City of San amount and rate of taxation for dif- Antonio (Tex. Civ. *App.) 46 S. W. ferent purposes is exclusive and can- 273. The presumption exists in all not be exercised by any other other cases where the validity of tax lev- tribunal; the circuit court in the ies is raised that all prior proceed- proper proceeding may determine ings have been regular and that au- such a tax illegal but it cannot re- thority exists for the levy. vise the rate. State v. Ormsby Board of Education of Ogden v. County Com'rs, 6 Nev. 95. Such a Brown, 12 Utah, 251; Heth v. City body in granting relief cannot go of Radford, 96 Va. 272. A city beyond the application made. Peo- charter containing no provision by pie v. Schoonover, 47 App. Div. 278, which the owner of property may 62 N. Y. Supp. 180; Huntingdon have its assessed valuation reviewed County v. Kauffman, 126 Pa. 305. ,and corrected for purposes of taxa- 325 TAXATION. 749 ply to the performance of duties of such a character would ap- ply here. The power to review and correct may not be vested in any particular court but one possessed by the ordinary judicial organizations of the state to be exercised when brought within their jurisdiction upon the proper pleadings and in the manner provided by law. 140 In proceedings brought by the taxpayer to restrain the collection of a tax which he deems illegal or unjust, it is necessary to bring in as parties defendant either the official representatives 141 or the corporation itself, 142 as required by law. Where officers are to be made parties defendant, a defect of par- ties through the failure to name all the necessary officials does 1*0 pence v. City of Frankfort, 19 Ky. L. R. 721, 41 S. W. 1011; Greene v. Mumford, 5 R. I. 472. An in- junction will not be issued by a court of equity to restrain the col- lection of general taxes based upon an improper assessment of property when a remedy at law is sufficiently adequate. Wells v. Lincoln Board of Education, 20 W. Va. 157. The petition should be filed within forty days as required by law from the time of making an illegal levy. State v. Cornwall, 91 Wis. 565, 73 N. W. 63. "It is the contention of the appellant that all the towns, villages and cities affected by the determination of the commissioners are necessary parties plaintiff and should all be joined with the rela- tor, or at least that the relator should expressly state that it is made in their behalf. A moment's reflection will convince that this cannot be the true solution of this question; for no town, village or city is in the least affected by the determination of the commissioners. It does not in the least affect the 'revenues of the town, nor impose a debt upon it, as a political organi- zation. But it does immediately and directly affect each taxpayer in the amount of his tax. The gen- eral tax is not a debt against the town but is a direct charge upon the taxpayer. And the determina- tion of the commissioners but de- termines the relative proportion of the general tax which shall be char- ged upon the taxpayers of each town. So, the town not being the real party in interest, the relation should not be in its name nor in its behalf. Any citizen was compe- tent to bring the action; for it is the settled rule of this state, and is in accord with the great weight of American authority, that where the relief sought is a matter of pub- lic right, the people at large is the real party and any citizen is entitled to a writ of mandamus to enforce the performance of such public duty. It is sufficient if he is a citizen and as such, interested in the execution of the law." i* 1 City of Richmond v. Crenshaw, 76 Va. 936; Newcomb v. Horton, 18 Wis. 566. This case also holds that one taxpayer cannot sue in behalf of himself and all other taxpayers entitled to the same relief; each must bring his several action. i*2jarvis v. Robertson, 126 Ind. 281. An action naming as defend- ant a person representing in his of- ficial capacity several distinct and separate public corporations should correctly state the corporation 750 PUBLIC REVENUES. 325 not ordinarily warrant the dismissal of the proceedings or a dis- solution of a temporary injunction which may have been grant- ed. 143 In such a proceeding where the taxpayer is the moving party, all questions that may determine or affect the legality of the tax can be considered, such as a proposed use of the tax levy; 144 the question of whether the tax levy is in excess of the against which the action is brought. See note on Taxpayers' Actions, 22 Abbott's New Cases, 86. "3 pickett v. Russell, 42 Fla. 116, 28 So. 764; Wall v. Eastman, 1 Mich. 268. There is no personal liability on the part of the public official made defendant in such case. "By reason of the refusal of the de- fendant below to issue his warrant for the collecting of the rate bill, the district lost the amount which would have been collected from the individuals sending pupils to the district school, for the payment of the teacher; and was obliged to collect by a tax on the property within the district the amount re- quired; in consequence of which the plaintiff below, being an inhabitant of the district, owning taxable prop- erty therein, was compelled to pay a tax of eight dollars, for the re- covery of which this suit is brought. If any right of action accrued, it was in favor of the corporation of which the plaintiff below was a member, and not to him individ- ually. If the plaintiff below could sustain this action, every person who paid any portion of the judg- ment in favor of the teacher against the district might also sustain a separate action for the amount paid by him; and upon the same prin- ciple, in case of the default of a county treasurer, every individual in the county who should be com- pelled to pay a tax to make good the fund lost might also maintain a separate action against the treas- urer for the amount paid by him. No such principle it is believed, has ever been sanctioned or recog- nized by any judicial tribunal whose decisions have been reported in the books." it* Seligman v. City of Santa Rosa, 81 Fed. 524. A taxpayer has, however, no right of intervention to prevent the expenditure of money already collected for the reason that the tax was invalid. Mutual Life Ins. Co. v. Powell, 89 Fed. 437; Russell v. Tate, 52 Ark. 541, 7 L. R. A. 180; Smith v. Omaha & C. B. R. & Bridge Co., 97 Iowa, 545, 66 N. W. 1041. Where public aid has been granted a bridge com- pany, taxpayers may sue to recov- er payments made to it where there has been a failure to comply with the required conditions. Gray v. Bourgeois, 107 La. 671, 32 So. 42. Moneys raised by taxation for one purpose cannot be used for another and such attempted use can be re- strained by a taxpayer. Prince v. Crocker, 166 Mass. 347, 32 L. R. A. 610; Morton v. Carlin, 51 Neb. 202, 70 N. W. 966; Blood v. Manchester Elec. Light Co., 68 N. H. 340, 39 Atl. 335; Clarke v. Shel- don, 57 Hun, 586, 10 N. Y. Supp. 357. A taxpayer can maintain an action in a town's behalf to compel the use of tax moneys for the purpose au- thorized. Calhoun v. Millard, 121 N. Y. 69, 24 N. E. 27, 8 L. R. A. 248. A tax 325 TAXATION. 751 limit prescribed by law; 1 * 5 the right of the corporation in ques- tion to levy and collect the tax ; 146 or the legality of the meeting at which the taxes were voted. 147 The court may apply the doc- trine of estoppel, however, to the one raising or attempting to raise the last ~s well as ether questions. 1 * 8 If the use to which the monej-s proposed to be raised is legal and within the limit prescribed by law it cannot ordinarily be questioned by the tax- payer 149 unless there is an attempted diversion of the funds raised for a specific purpose from their proper use. 150 levy for the payment of railroad aid bonds lawfully issued will not be enjoined because neither "an ille- gal act" nor a "waste" within the meaning of the New York laws 1881, c. 531, 1. City of Ft. Worth v. Boulware, 26 Tex. Civ. App. 76, 62 S. W. 928. The burden of proof is upon the taxing district to establish its lien by show- ing that the property was actually in existence and subject to it. 1*5 Davis v. Petrinovich, 112 Ala, 654, 36 L. R. A. 615; Spilman v. City of Parkersburg, 35 W. Va. 605. 1*6 Town of Douglasville v. Johns, 62 Ga. 423; City of Grand Rapids v. Blakely, 40 Mich. 367; East Riv- er Bank v. Butterworth, 51 N. Y. 637. 1*7 Kentucky Union R. Co. v. Bour- bon County, 8 Ky. L. R. 881, 2 S. W. 687; Guillory v. Avoyelles R. Co., 104 La. 11, 28 So. 899; Sentell v. Police Jury of Parish of Avoyelles, 48 La. Ann. 96. i** City of Evansville v. Pfister- er, 34 Ind. 36; Sleeper v. Bullen, 6 Kan. 300; Vicksburg S. & P. R. Co. v. Scott, 52 La. Ann. 512; Motz v. City of Detroit, 18 Mich. 495; Kel- logg v. Ely, 15 Ohio St. 64; State v. Bader, 56 Ohio St. 718, 47 N. E. 564. A voluntary payment of taxes assessed against a taxpayer may es- top him from bringing an action to enjoin the levy and collection of the tax. i* Casey v. Independent School Dist, 64 Iowa, 659. Where the use is lawful and the tax has been le- gally levied, irregularities cannot be made the basis of an action to enjoin the payment of a tax in connection with the making of the contract to pay the obligation of which the tax is levied. Anderson v. City of Mayfield, 14 Ky. L. R. 370, 19 S. W. 598. The collection of taxes will not be en- joined for the reason that moneys raised are being improperly expend- ed by the authorities. The court say: "The charter of the City of Mayfield provides that the assessor shall make his assessment and re- turn his lists to the proper office by a certain time. This was not done. The assessment was made after the prescribed period. This provision is not, however, for the benefit of the taxpayer. It is not important to him. Its object is to secure for the city order and dispatch in the collection of its taxes and the trans- action of its business. Such provi- sions are not regarded as manda- tory, in the absence of words im- porting that the required act shall not be done at any other time than that designated. No such negative words are contained in the charter. 752 PUBLIC REVENUES. 326 326. Lien and priority. Both taxes and special assessments have a lien paramount, prior and superior on the property subject to them 151 which cannot be lost by the laches or neglect of public officials charged with en- forcing tax laws. 152 This lien need not be expressly given that it may exist, 153 and attaches usually from the time that the taxes A person should not be allowed to * * * If the rule were otherwise, rely upon the mere nonfeasance of the machinery of government would an officer when it is not important be liable to interruption. The na- to that person, and thus escape the ture of a municipal tax the pur- performance of his own duty. Even pose of it forbids the assertion of the omission of property in making a demand as a set-off unless ex- an assessment, either through neg- pressly authorized by statute. This ligence or default of the assessing rule is necessary to the continuance officer, or where it occurs through of the government." Central R. Co. mistake of law, does not vitiate the v. Mutchler, 41 N. J. Law, 96. tax. If so, as all men are fallible, iso state v. Jersey City, 54 N. J. no tax could ever be collected and Law, 49, 22 Atl. 1052. the government would fail. The re- 151 Parker v. City of Jacksonville, quirement being merely directory, 37 Fla. 342, 20 So. 538. A lien, the making of an assessment at a however, exists only against the later period did not render it and specific property upon which the de- the proceedings based upon it void, linquent taxes are levied. Bothwell Even if the taxes were being im- v. Millikan, 104 Ind. 162; City of properly expended, yet the taxpayer Middlesboro v. Coal & Iron Bank, 22 cannot, therefore, refuse to pay his Ky. L. R. 380, 57 S. W. 497; Hohen- tax. He cannot have relief in this statt v. City of Bridgeton, 62 N. J. way. He must do his duty and look Law, 169, 40 Atl. 649; Burnet v. to the law to compel a proper ex- Dean, 60 N. J. Eq. 9, 46 Atl. 532. penditure. The tax in question was An act, however, which provides authorized by the city charter; and, that "in villages and other munici- in such a case, whether its impo- pal corporations" taxes shall be a sition be necessary is a matter for lien on real estate until paid is in the determination of the taxing contravention of constitutional pro- power. It was attempted in one of vision art. 4, 7, paragraph 11, these cases to prevent the collection which prohibits the legislature from of the tax, provided it was legal, passing private or local or special by the assertion of an alleged in- laws regulating the internal affairs debtedness of the city to the tax- of towns and counties, payer. This cannot be done unless 152 justice v. City of Logansport, expressly authorized by statute. A 101 Ind. 326; Eschbach v. Pitts, 6 tax grows out of a duty and not Md. 71. out of contract. It is not collect!- iss Kansas City v. Payne, 71 Mo. ble by suit unless expressly author- 159; City of Jefferson v. Whipple, ized. It is not a demand founded 71 Mo. 519. The lien, however, must upon a contract or a judgment, be given through some provision of 327 TAXATION. are entered in the records kept for such purpose after their as- sessment and levy. 154 The lien of special assessments, however, may vary with different provisions as found in the charters of various municipal corporations which must be consulted to de- termine questions raised in individual cases. 155 The statute of limitations may, by law, run against such lien and after the time thus prescribed it cannot be enforced. 168 327. Collection of taxes. When the right to levy and collect taxes has been once granted to a subordinate agent by the sovereign, it then becomes, to the extent of taxes levied under such authority, one which cannot be taken away by subsequent action of the legislature. 157 Its ex- ercise can be invoked either by the corporation itself or some of the city charter. O'Neill v. Dringer, 31 N. J. Eq. (4 Stew.) 507; Howell v. City of Philadelphia, 38 Pa. 471; Allegheny City's Appeal, 41 Pa. 60; People's Nat. Bank v. City of Ennis (Tex. Civ. App.) 50 S. W. 632. is* Eaton v. Chesebrough, 82 Mich. 214. Taxes become a lien from the time when the assessment roll and warrants for collection come into the hands of the receiver of taxes. Selby v. Levee Com'rs, 14 La. Ann. 434; Matter of Drainage Com'rs, 28 La. Ann. 513; McQuiddy v. Gates, 69 Mo. App. 156; City of Port Town- send v. Eisenbeis, 28 Wash. 533, 68 Pac. 1045. 155 City of Philadelphia v. Greble, 39 Pa. 339. iss Peoples' Homestead Ass'n v. Garland, 107 La. 476, 31 So. 892. is? City of Dubuque v. Illinois Cent. R. Co., 39 Iowa, 56. "It is ar- gued by defendant's counsel that, as the city of Dubuque is a municipal corporation organized for political purposes, its corporate powers may be abridged or entirely taken away, being in no sense vested rights as against the state. It is, therefore, insisted that the city may be law- Abb. Corp. 48. fully deprived of the right to col- lect taxes legally levied. Without contesting the correctness of coun- sel's premises, it is very plainly to be seen that their conclusion is a non-sequitur. It must be remem- bered that a municipal corporation though a public and political insti- tution, deriving its life and powers from the state, possesses a private and proprietary character and, as such, may acquire and hold prop- erty and make contracts. It is pro- tected in its property by the same constitutional guarantees that ex- tend over natural persons and the restriction upon legislative action impairing the obligation of con- tracts preserves those made with it. Rights held by it in its last named character are beyond legislative con- trol and interference." Citing, Bow- doinham v. Town of Richmond (6 Greenl.) 6 Me. 112; Benson v. City of New York, 10 Barb. (N. Y.) 223; Trustees of Aberdeen Female Acad- emy v. City of Aberdeen, 21 Miss. (13 Smedes & M.) 645; Town of Milwaukee v. City of Milwaukee, 12 Wis. 93; State v. Haben, 22 Wis. 660. 754 PUBLIC REVENUES. 327 its creditors who have become such upon the faith of the au- thority and because of the resulting tax levy. 158 The grant of a right ever carries with it the implied power to use all proper, necessary or reasonable means and agencies for carrying it into effect. 159 The right to levy taxes implies the pow- er to enforce or collect either in an action 160 brought by the cor- poration against the party delinquent in their payment or through summary proceedings against persons or property subject to issTrafton v. Inhabitants of Al- fred, 15 Me. 258. No such right can be based, however, upon an illegal tax. 159 Amite City v. Clements, 24 La- Ann. 27. The grant of a power to levy taxes carries with it the im- plied right to enforce their payment through judicial proceedings. City of Aurora v. McGannon, 138 Mo. 38, 39 S. W. 469; Stifel v. MacManus, 74 Mo. App. 55S; Davis v. Simpson, 25 Nev. 123, 58 Pac. 146; Torrey v. Willard, 55 Hun, 78, 8 N. Y. Supp. 392; Clark v. Locke, 56 Hun, 643, 9 N. Y. Supp. 918. A city having general powers may accept a mort- gage on real estate as security for taxes which had accrued tfiereon. City of Wilmington v. Sprunt, 114 N. C. 348, 19 S. W. 348. io Appanoose County v. Vermil- ion, 70 Iowa, 365, 30 N. W. 616. There must exist statutory or con- stitutional /authority to enable a county to maintain an action to re- cover delinquent taxes. City of Burlington v. Burlington & M. R. Co., 41 Iowa, 134. A mu- nicipality may, at its election, avail itself of a special remedy provided by law for the collection of taxes or its general right to sue. City of Covington v. Covington Gas Light Co., 8 Ky. L. R. 515, 2 S. W. 326; City of Somerset v. Somer- set Banking Co.. 22 Ky. L. R. 1129, 60 S. W. 5; Vanceburg & S. L. Turn- pike Road Co. v. Maysville & B. S. R. Co. (Ky.) 63 S. W. 749; Louis- ville Bridge Co. v. City of Louis- ville, 23 Ky. L. R. 1655, 65 S. W. 814; Greer v. City of Covington, 83 Ky. 410; Brown v. City of Cape Girardeau, 90 Mo. 377, 2 S. W. 302; State v. Edwards, 162 Mo. 660, 63 S. W. 388. A delinquent tax bill certi- fied by the collector of taxes admis- sible in such an action brought to collect taxes under Rev. St. 1889, 7626. State v. Rainey, 74 Mo. 229. A judgment in a tax case rendered by a court of competent jurisdiction and with no defect of parties is not open to collateral attack. Eyerman v. Blaksley, 78 Mo. 145. In such an action that provision of the city pro- vision of the city charter making special tax bills prima facie evi- dence of liability is not unconstitu- tional as changing "the rules of ev- idence in any judicial proceeding" contrary to Missouri constitution, art. 4, 53. City of St. Joseph v. Kansas City, St. J. & C. B. R. Co., 118 Mo. 671; City of San Antonio v. Berry, 92 Tex. 319, 48 S. W. 496; Dallas Title & Trust Co. v. City of Oak Cliff, 8 Tex. Civ. App. 217, 27 S. W. 1036; City of Seattle r. Doran, 5 Wash. 482; Albany Mut. Bldg. Ass'n v. Laramie, 10 Wyo. 54, 65 Pac. 1011. 327 TAXATION. 755 the lien. 161 The party plaintiff to such an action is usually the corporation represented by the officers or agents to whom, by law, has been given the exercise of such duty. 162 The true owner should be made a party defendant. Proceedings brought against one who is not the owner of property cannot result in an enforce- able judgment against such true owner. 163 The question of sum- mary proceedings will be considered in a succeeding section. 164 A subsequent purchaser of property upon which illegal taxes have been levied is substituted for the owner at the time of their as- sessment and levy so far as proceedings to restrain their col- lection is concerned. 185 lei McKay v. Batchellor, 2 Colo. 591. In such an action tax officials have no authority to distrain prop- erty outside of the taxing district. Doggett v. Walter, 15 Fla. 355; Par- ker v. City of Jacksonville, 37 Fla. 342, 20 So. 538; Smith v. Jones, 40 Ga. 39; Johnson v. Boske, 23 Ky. L. R. 1845, 66 S. W. 400, following Richardson v. Boske, 23 Ky. L. R. 1209, 64 S. W. 919; City of Jeffer- son v. Curry, 77 Mo. 230; McCrary v. City of Comanche (Tex.) 34 S. W. 679. 162 School Dist. of Ft. Smith v. Board of Improvement, 65 Ark. 343, 46 S. W. 418. An attorney's fee can be included as a part of the penalty, "costs," etc. Parker v. City of Jacksonville, 37 Fla. 342, 20 So. 538; Webster v. Chi- cago, 62 111. 302; People v. Brislin, 80 111. 423; Trustees of Elizabeth- town Dist. Public School v. Louis- ville & N. R. Co., 17 Ky. L. R. 160, 30 S. W. 620; Board of Education of Hawesville v. Louisville H. & St. L. R. Co., 23 Ky. L, R. 376, 62 S. W. 1125; Danforth v. Williams, 9 Mass. 324; Port Huron Tp. v. Potts, 78 Mich. 435, 44 N. W. 289; Auditor General v. Maier, 95 Mich. 127, 54 N. W. 640; Bangor Tp. v. Smith Transp. Co., 112 Mich. 601. 71 N. W. 143. A township under How. St. 737, can collect a tax due in a suit authorized by its supervisors. State v. Robyn, 93 Mo. 395, 6 S. W. 243; City of Aurora v. Lindsay, 146 Mo. 509, 48 S. W. 642; Chrig- strom v. McGregor, 74 Hun, 343, 26 N. Y. Supp. 517; City of Wilming- ton v. Stolter, 122 N. C. 395; Mc- Combs v. City of Rockport, 14 Tex. Civ. App. 560, 37 S. W. 988. lea Keating v. Craig, 73 Mo. 507. The trustee named in a deed, by which land subject to a specific tax has been conveyed, held not a neces- sary party under the charter of the city of Kansas City, Missouri. City of St. Joseph v. Baker, 86 Mo. App. 310. 16* See post, 334. 165 Vesta Mills v. City Council of Charleston, 60 S. C. 1. This was a suit for an injunction to restrain the city of Charleston from collect- ing a tax from the Vesta Mills. The court said: "'We now come to the main question and that is whether the plaintiff, the Vesta Mills, is lia- ble for the city taxes. * And the answer depends upon a proper construction of an ordinance of the city of Charleston passed by its officers on the 24th day of March, 1896.' * * * In construing this ordinance, it becomes important to into the intention, purpose 756 PUBLIC REVENUES. 32S Personal liability. It is seldom that there exists a personal liability on the part of the taxpayer for delinquent and un- paid taxes levied upon real property. The property itself can be seized and taken for the taxes but the liability of the owner goes no further, and personal property not subject to such a tax cannot be reached unless there exists statutory authority for such a lia- bility and for the proceedings necessary to enforce it. 168 328. Actions; questions raised. In an action brought by a public corporation against the proper party to enforce the collection of taxes or in actions brought by a taxpayer to defeat or restrain the collection of alleged invalid taxes, all questions which go to a determination of the justice and legality of the tax may be considered. 167 These arise either from and object of this ordinance, what was the object of the city of Charles- ton in favoring certain manufac- tories, with an exemption from tax- ation, except for school purposes? Such industries were encouraged and favored as a means and for the purposes of bringing and keeping within the borders of the city cap- ital and labor to be used and em- ployed in the manufacture of the staples of her commerce. Now, upon the facts, we find an old abandoned plant within the city limits, never entitled to claim and, as a fact, nev- er claiming any exemption from tax- ation under such ordinance. Both the Charleston Cotton Mills and the Charleston Mills were doomed to failure and both ceased operations and went out of business. While this state of affairs existed, the plaintiff purchased its plant at a forced sale, paying $100,000 tor its purchase, organized and equipped a cotton mill, put blood, life and money into it, and is, presumably in a prosperous condition. This, in my judgment, is within the very letter and spirit of the ordinance and this company is just as much entitled to the exemption given in such ordi- nance as if it had purchased instead of this property, some old abandoned warehouse * * * now idle in the city. It is contended that this plain- tiff has not increased the taxable property of the city; that the prop- erty it operates was already on the tax books, in short, that it has erect- ed nothing. This position cannot be successfully maintained, for the reason that the premises are untrue. The plaintiff paid out at the start $100,000 for this property, that is subject to taxation. It employs hands, creates and supplies a mar- ket in trade, and, to all intents and purposes, is a new factory estab- lished within the city limits, and is entitled to the exemption as such." lee City of Grand Rapids v. Lake Shore & M. S. R. Co., 130 Mich. 238, 89 N. W. 932; Berry v. City of San Antonio (Tex. Civ. App.) 46 S. W. 273; McCrowell v. City of Bristol, 89 Va. 652, 16 S. E. 867. IB? Cloutman v. Pike, 7 N. H. 209; Wright v. City of San Antonio (Tex. Civ. App.) 50 S. W. 406. The bur- den of proof is upon one attacking the validity of a tax. 328 TAXATION. 757 a proposed use of the tax levy, 168 the question of whether it is in excess of the limit prescribed by law, 169 or the right of the corporation itself to levy and collect the tax. 170 That a tax levy be valid it is necessary to show at least the existence of a de facto organization 171 although the party may be estopped from ques- ts Pittsburgh, C., C. & St. L. R. Co. v. Harden, 137 Ind. 486, 37 N. E. 324. The collection of a railway tax cannot be enjoined because of a failure to comply with the condi- tions accompanying the aid when the officers having charge of the tax levy may withhold a payment of the same unil a proper compliance by the railroad company wih such con- ditions. Meader v. Lowry, 45 Iowa, 684; Hull v. Kearney County Com'rs, 13 Neb. 539. A collection will not be enjoined of a tax levy to meet a contract obligation where the contract as executed was in ex- cess of legal authority. i69Dollahon v. Whittaker, 187 111. 84; French v. City of Burlington, 42 Iowa, 614. "The constitutional pro- vision is as follows: 'No municipal corporation shall be allowed to be- come indebted in any manner or for any purpose to an amount in the aggregate exceeding five per cent on the value of the taxable property within such corporation to be as- certained by the last state and coun- ty tax lists previous to the incur- ring of such indebtedness.' * * * If the indebtedness is created for any purpose it is within the consti- tutional inhibition. Certainly those words include the necessary as well as convenient improvement of the streets as well as all other things deemed necessary and proper for the comfort or health of the people of the city. It matters not how, or for what purpose the indebtedness is incurred, it is prohibited unless it can be shown to be reasonably cer- tain such indebtedness can be liqui- dated and paid from the ordinary current revenues of the city. And he who contracts with a city, where- by an indebtedness is created, must at his peril, take notice of the finan- cial standing and condition of the city and whether the proposed in- debtedness is in excess of the con- stitutional limitation. Any other rule leaves the taxpayer at the mer- cy of the officers of the city and contractor and would render the constitutional provision nugatory. Such a result cannot be contem- plated or allowed to prevail." State v. McLaughlin, 15 Kan. 228; Catron v. Santa Fe County Com'rs, 5 N. M. 203, 21 Pac. 60. The same question can be raised in an action brought by a taxpayer to enjoin a tax levy. Flock v. Smith, 65 N. J. Law, 224, 47 Atl. 442; Snyder v. Kantner, 190 Pa. 440; Tygart's Val. Bank v. Town of Philippi, 38 W. Va. 219. i McCormac v. Robeson County Com'rs, 90 N. C. 441; Devor v. Mc- Clintock, 9 Watts & S. (Pa.) 80; Lowe v. Hardy, 7 Utah, 368, 26 Pac. 982. 171 Hamilton v. San Diego Coun- ty, 108 Gal. 273; Trumbo v. People, 75 111. 561. The question of the le- gality of a corporate organization cannot be inquired into in an action brought to restrain the collection of taxes. Louisville & N. R. Co. v. Trustees of Elizabethtown, 23 Ky. L. R. 1169, 64 S. W. 974. After the lapse of twenty years It will be presumed 758 PUBLIC REVENUES. 328 tioning the right of an organization to levy taxes. 172 The legality of the meeting at which the taxes were voted may be raised 173 and that all the requirements of the statute were complied with in es- tablishing a corporate organization. Holmes v. Baker, 82 Mass. (16 Gray) 259; Green Mountain Stock- Ranching Co. v. Savage, 15 Mont. 189; Grace v. City of Bonham, 26 Tex. Civ. App. 161, 63 S. W. 158. 172 Stamper v. Roberts, DO Mo. 683, 3 S. W. 214. The plaintiff may be refused relief on the ground of laches. A delay of four years in raising questions affecting the regu- larity of the proceedings for the for- mation of a school district held suf- ficient grounds in this case to apply the rule. The court say: "It is contended by counsel that under sections 7023 and 7031 Rev. St., the voters, when assembled at the an- nual meeting were confined to the proposition of creating the new dis- trict out of the exact territory as described in the petition and no- tices; and that as they did not do so, but changed the boundary in the particulars above stated, the whole proceeding is void. Accord- ing to the petition and notices it was proposed to include 164 acres of plaintiff's fend in the new dis- trict. According to the change or amendment made, all of the land was not included, but only seven acres of it and it is the change thus made upon which the above conten- tion is based. Conceding for the purposes of this case, without deter- mining the question that the change thus made was irregular, and in ex- cess of the power conferred, the question still remains whether, un- der the facts of the case, a court of equity should interpose its injunc- ttve and restraining process. The proceedings to establish this new district occurred in April, 1880. This suit, assailing its validity, was brought in 1884. In the meantime the new district was, in fact, organ- ized, and has remained so organ- ized, unchallenged by plaintiff, ex- cept so far as his protest, when pay- ing school taxes assessed against him, may be regarded as challen- ging it in view of these facts, and the further fact that during an in- terval of four years the de facto ex- istence of the district was recog- nized, and parties interested have adapted themselves to the changed conditions of things, presumably, for school purposes, and incurred expenses necessarily incidental to conducting a school, we are fully justified in affirming the judgment of the Circuit Court, on the ground, if on no other that plaintiff by his laches has allowed a condition of things to exist for four years which would make it inequitable to grant the relief prayed for." iTsvieley v. Thompson, 44 111. 9. "The only law to which we have been referred under which authority to issue these bonds can be claimed is the act of 1865. By the first sec- tion of that act, the various towns of the several counties named are authorized to levy a tax of not more than three per cent on the taxable property to pay bounties to volun- teers, substitutes and drafted men, who might thereafter enlist or be drafted into the army. The second section declares that, when any ten legal voters of any town shall make a request in writing, it shall be the duty of the supervisor to call a special election within five days 328 TAXATION. 759 the doctrine of estoppel is also applicable. 174 The use, if legal, to which moneys proposed to be raised by taxation, if within the limit prescribed by law, cannot ordinarily be questioned by a tax- payer. 176 Irregularities in the preliminary proceedings, the actual after the request, to determine whether such tax shall be levied by posting notices in three of the most public places in the town at least ten days next previous to the elec- tion. The notices are required to state the object of the election. * * * This being so before they could act, in returning the certifi- cate to the county clerk, the law has declared, that they shall be au- thorized by a majority of the voters of the town. It is from the con- sent of the voters alone that their authority is derived; until that is had, they aTe powerless to act and their consent must be obtained in the mode prescribed by law, and it has required that it shall be by a vote for and against the imposition of the tax, and for the purpose of having a fair expression of the will of the taxpayers, an opportunity was intended by the law makers to be given to the voters to express their wishes. Hence, the require- ment that a notice should be given by the persons and in the manner prescribed. This notice was intend- ed to be, and is, essential to the validity of the election. It was in- dispensable to the legal exercise of the power of levying the tax. It was important to prevent fraud and oppression and was therefore made indispensable. Without the notice, an election could not be legally held, and without a legal election result- ing in favor of the tax, no power was conferred on the town officers to levy the tax." Stowe v. Town of Stowe, 70 Vt. 609, 41 Atl. 1024. * Irvin v. Gregory, 86 Ga. 605; Thatcher v. People, 98 111. 632. "Nevertheless, under the circum- stances of this case, we do not think appellant is in a position to ques- tion the regularity or validity of the election in question or the sub- sequent proceedings of the directors had upon the faith of it in borrow- ing the money and issuing the bonds for the payment of which the tax in controversy was levied. The evidence shows that he was present and participated in the proceedings of the meeting or election held in pursuance of these notices, and which authorized the raising of the money for which the bonds in ques- tion were issued, and so far from objecting to the action of the meet- ing in that respect, he, in person, seconded the motion to raise the money in the manner and for the purpose we have stated. The money having been thus obtained in part, through his own instrumentality and the district to which he be- longed having had the benefit of it, we hold that, under these circum- stances, he is estopped from ques- tioning the regularity or validity of what was done under the author- ity of those proceedings." Attorney General v. Burrell, 31 Mich. 25; T. B. Scott Lumber Co. v. Oneida County, 72 Wis. 158, 39 N. W. 343. ITS Dyer v. Erwin, 106 Ga. 845; Lawrence v. Trainer (111.) 27 N. E. 197; Town of Lemont v. Singer 6 T. Stone Co., 98 111. 94. "A court of equity is not vested with juris- diction to conduct the affairs of a township or to supervise and con- 760 PUBLIC REVENUES. 328 levy and assessment, or in tax returns 176 as well as irregularities in connection with the assessment proper, may be raised. 177 The fact of an irregularity or an informality does not necessarily, how- ever, invalidate the tax where such irregularity or defect operates without prejudice to the taxpayer. 178 The same subject. The validity of tax laws may also be determined in actions brought to collect or enforce tax levies. The act under which the tax is attempted to be raised or its collec- tion enforced may be special legislation within the meaning of a constitutional provision prohibiting the passage of special or local laws, 179 or it may lack the conditions prescribed by the con- stitution requiring uniformity and equality of taxation, either as to the subject or the rate of taxation. 180 Other questions con- cerning the constitutionality of tax laws as applied to the legis- lation itself may be also raised. The subject of the act should be trol the action of its officers or the people so long as they confine them- selves to the powers conferred by the statute. So long as they keep within the powers conferred, they are amenable to no control By the courts. It is only when they tran- scend their powers that a court of chancery can intervene to restrain their action. It has no power to regulate and control their action so long as they perform no function outside of the grant of power by the General Assembly. The courts have no right to say that although the officers and people have only ex- ercised legitimate power, the action is unwise or is not for the best in- terests of the people of the munici- pality and the act should be re- strained. That belongs alone to the officers and the people. Here the tax was voted by the people and certified by the town clerk to the county clerk for extension against the taxable property of the town, as required by law. In all of this we are unable to discover anything il- legal, or in the slightest degree irregular, and if it has been legally done, equity has no power to en- join the tax." People v. Sisson, 98 111. 335; Free- land v. Hastings, 92 Mass. (10 Al- len) 570; Lee v. Mehew, 8 Okl. 136, 56 Pac. 1046. See, however, as hold- ing to the contrary, Conner's Ap- peal. 103 Pa. 356. 176 Hersey v. Barren County Sup'rs, 37 Wis. 75; Marsh v. Clark County Sup'rs, 42 Wis. 502; Sal- scheider v. City of Ft. Howard, 45 Wis. 519. 177 Taylor v. McFadden, 84 Iowa, 262, 50 N. W. 1070; Hundley v. Sin- gleton, 23 Ky. L. R. 2006, 66 S. W. 279; City of Rockland v. Ulmer, 84 Me. 503; State v. Chicago & A. R. Co., 165 Mo. 597, 65 S. W. 989. ITS Brady v. Burke, 90 Cal. 1; De Koven v. City of Lake View, 129 111. 399; Morrison v. Hershire, 32 Iowa, 276; Galbreath v. Newton, 45 Mo. App. 312. 179 Duluth Banking Co. v. Koon, 81 Minn. 486. iso Gage v. Graham, 57 111. 144; Knowlton v. Rock County Sup'rs, 9 Wis. 410. 328 TAXATION. 761 expressed in the title. 181 It should not include more than one subject and that contained in its title, and other principles of constitutional law may be invoked. 182 The doctrine of res ad- judicata may apply to the parties concerned in such litigation. 183 isi City of Knoxville v. Lewis, 80 Tenn. (12 Lea) 180. iss state v. City of New Orleans, 42 La. Ann. 92, 7 So. 674. "The op- position of the city to the consti- tutionality of the act may be sum- marized as follows: (1) It em- braces two objects; (2) it attempts to amend the city charter in a pro- hibited manner; (3) it is a local or special enactment which was adopt- ed without previous publication of intention, etc.; (4) it requires the city to pay through the board of directors, a debt which it does not owe; (5) it requires the city to make an appropriation for school purposes which the city cannot be compelled to raise by a school tax. * * * The books are full of cases in which political corporations have been recognized the privilege of set- ting up the unconstitutionality of law under which some unwarrant- able right against their revenue and property was sought to be enforced and in which the legality of such defenses has been sanctioned. When, therefore, the courts have said, in cases of that category that such cor- porations cannot resist legislation affecting them, they would mean, and meant only, constitutional, and in no way unconstitutional legisla- tion for the glaring reason that to have meant and said the reverse would have been to have held that municipal corporations must in all contingencies accept, and further unconstitutional legislation which would be a monstrous proposition. * * * Here the controverted ques- tion involves the right of the legis- lature to dispose without warrant and in spite of constitutional inhi- bition, of a large portion of the city's revenue for a specific purpose, injuriously, it is claimed, to other superior purposes; in other words the power of that body to divert a part of the alimony of the city for an object for which it could not be forced to provide, which is not one of her essential wants and ne- cessities and which in amount is larger than that which the city can concentrate to that end. In sup- port of her resistance, the city in- vokes the organic law which pre- vents the legislature from enacting, and which has vested it with a dis- cretion which cannot be coerced and which she had reasonably exercised. It would be strange indeed, if after the defendants have been command- ed to show cause why the relief sought against them should not be granted, they could be met, when they appear in response with the ob- jection that they have no standing in court." iss City of New Orleans v. Citi- zens' Bank of Louisiana, 167 U. S. 371; Stone v. Bank of Commerce, 174 U. S. 412. But if certain public officials have no authority to make contracts concerning the payment of a tax, the city will not be bound by it. James v. City of Louisville, 19 Ky. L. R. 447, 40 S. W. 912. The rights of individuals cannot be af- fected by a suit to which they were not made parties. Stone v. Bank of 762 PUBLIC REVENUES. 329 329. Use of proper remedy by taxpayers to prevent collection of illegal taxes. The levy and collection of taxes is ordinarily a complicated matter and involves the granting of the original authority, the assessment of property by the proper officials as a basis of taxa- tion, the preliminary acts necessary to the actual levy, the levy and apportionment of taxes, their collection by the public officials and in the case of delinquency by the taxpayer, the enforcement by the legal remedies. That a taxpayer who deems a tax illegal raise the question he deems involved, it is necessary that this be done at the time and in the manner prescribed by law. 184 He may be given the right to appeal from the action of the assess- ing board or body from an erroneous or unjust assessment and failing this he may be refused the right to raise subsequently in an action brought against him by the proper authorities ques- tions relating to the validity of the tax which the law intended should be corrected in the prior application for abatement, pro- ceeding or appeal. 185 The use of an improper remedy or the fail- Kentucky, 174 U. S. 799, affirming 88 Fed. 383; Taxpayers v. O'Kelly, 49 La. Ann. 1039. is* Morgan v. Graham, 1 Woods, 124, Fed. Gas. No. 9,801. A private suit against state officials, however, cannot be maintained by a taxpayer to prevent them from issuing bonfls authorized and required to be is- sued. Kansas City v. Cullinan, 65 Kan. 68, 68 Pac. 1099; Guillory v. Avoy- elles R. Co., 104 La. 11, 28 So. 899; Black v. Common Council of De- troit, 119 Mich. 571, 78 N. W. 660. Where a taxpayer's rights depend upon a resolution passed by the city council, laches cannot be at- tributed to him unless based on act- ual notice of the passage of such resolution. The court say: "Coun- sel for defendants contend that the complainants were guilty of laches in not filing their bill sooner as it appears that the common council as early as June 12th adopted a reso- lution ordering the controller to transfer this $5,000 to the entertain- ment fund and that fifteen days elapsed from that' time before de- fendant Smith had his material on the ground and nineteen days be- fore the bill was filed. It is not claimed that complainants had act- ual notice of these matters but coun- sel contend that the council pro- ceedings being regularly published, this was sufficient notice. We think, however, that actual notice or knowledge of a proceeding com- plained of is necessary to take away the right to object thereto on the score of laches." Richter v. Merrill, 84 Mo. App. 150. IBS Petaluma Pav. Co. v. Singley, 136 Gal. 616, 69 Pac. 426; Tackett v. Stevenson, 155 Ind. 407, 58 N. E. 534; Macklot v. City of Davenport, 17 Iowa. 379. Where a city council have the power to "correct or equal- 330 TAXATION. 763 nre to use it at the right time a proper remedy will result in a defeat of his effort to set aside the tax. 186 330. Compromise of taxes. The levy and collection of taxes is an inextinguishable and un- abatable right and usually such a claim urged either by the sov- ereign or a delegated agency cannot be compromised. Any agree- ment or contract effecting such a result is incapable of enforce- ment. 187 If, however, the right to compromise is expressly grant- ed by law, this rule will not apply. 188 ize any erroneous or unjust" assess- ment of taxes, a court of equity cannot interfere by injunction to restrain the collection of taxes er- roneously assessed where the right afforded by the charter was not in- voked by the taxpayer. Howe T. City of Boston, 61 Mass. (7 Gush.) 273; School Dist. No. 6 v. Select- men of Orford, 63 N. H. 277; State v. Cappeller, 39 Ohio St. 455. 186 EX parte Howard-Harrison Iron Co., 130 Ala. 185, 30 So. 400; Burnham v. Rogers, 167 Mo. 17, 66 S. W. 970; Devine v. Franks (N. J. Bq.) 47 Atl. 228; Clark v. Board of Education of Starr Tp., 44 Ohio St. 595, 9 N. E. 790; Seabury v. How- land, 15 R. I. 446, 8 Atl. 341. IST Stone v. Bank of Commerce, 174 U. S. 412; City of Louisville v. Louisville R. Co., 23 Ky. L. R. 390, 63 S. W. 14. There is no question as to the application of the rule stated in the text where by statu- tory enactment or constitutional provision a public corporation di- rectly or indirectly is prohibited f^om releasing or authorizing the release either wholly or in part of the indebtedness or liability of any person to such corporation. City of New Orleans v. New Or- leans Sugar Shed Co., 35 La. Ann. 548. The rule also applies to a contract for a commutation of tax- ation. City of Kansas v. Hannibal & St. J. R. Co., 81 Mo. 285. See, however, to the contrary, the case of Hintrager v. Richter, 85 Iowa, 222, 52 N. W. 188. iss City Item Co-Operative Print- ing Co. v. City of New Orleans, 51 'La. Ann. 713. A taxpayer may bring an action to test the validity of a compromise of delinquent taxes made by a municipal corporation of which he is a taxpayer. Essex Public Road Board v. Skinkle, 49 N. J. Law, 641. A road board is a public quasi corporation and the legislative branch of the government, therefore, can provide for the re-adjustment of road taxes levied by it without impairing the obligation of any contract with such road board. This case further holds that considering the character of the corporation, a contract between the two would be impossible. The road board holding its powers en- tirely at the will of the legislature. Essex Public Road Board v. Skinkle, 49 N. J. Law, 65; City of San An- tonio v. Raley (Tex. Civ. App.) 32 S. W. 180. 764 PUBLIC REVENUES. 332 331. Right to prescribe and collect penalties. Where the right is given to levy and enforce the collection of taxes or license fees, the public corporation has the power to prescribe penalties that may accrue upon a failure to pay the tax or fee at the time fixed by law. A delinquent taxpayer then becomes liable either personally or through his property not only for the amount of the tax levy as originally made but, in addition, the penalties prescribed. 189 These consist either of a specific amount or of interest to be added at a certain rate with possibly an increased rate after the lapse of additional time. 190 332. Irregularities. Ordinarily injunctions or restraining orders will not be granted iss Denver City R. Co. v. City of Denver, 21 Colo. 350, 41 Pac. 826, 19 L. R. A. 608; City of Burlington v. Burlington & M. R. R. Co., 41 Iowa, 134; Augustine v. Jennings, 42 Iowa, 198; Hintrager v. McEl- hinny, 112 Iowa, 325, 83 N. W. 1063, modifying 82 N. W. 1008; State v. Consolidated V. Min. Co., 16 Nev. 432; City of San Antonio v. Raley (Tex. Civ. App.) 32 S. W. 180. The right to prescribe a penalty for neg- lect to pay taxes promptly must be expressly given a subordinate cor- poration. City of Seattle v. Whit- tlesey, 17 Wash. 292, 49 Pac. 489. Laws of 1897, c. 71, 118, remitting certain penalties from unpaid taxes does not apply to assessments lev- ied for local improvements. iso City of New Orleans v. Fisher, 180 U. S. 185; Weber v. City of San Francisco, 1 Cal. 455; State v. Nor- ton, 63 Minn. 497, 65 N. W. 935. "It is also claimed by the defend- ants that in no event should penal- ties be added to the assessment. Gen. St. 1894, 1345, provides that any owner or any party interested In any piece or parcel of land against which an assessment is lev- ied may pay the full amount, or any part, with interest thereon at the rate of eight per cent per annum to the date of payment, to the vil- lage treasurer at any time before the roll is delivered to the county treasurer, but after that the assess- ment roll is delivered to the county treasurer, the assessment or any part thereof as has been certified to the county auditor must be paid to the county treasurer, with interest, and subject to all penalties allowed by law; and such treasurer is re- quired to report all such payments to the county auditor and village treasurer, giving items of assess- ment, interest and penalty thereon. This assessment is a special tax but the county auditor is required to put it upon the proper tax list, to be collected the same as other taxes are to be collected. The gen- eral tax law of the state also re- quires the county auditor to enter the amount of all special taxes in the proper column after all the tax lists are delivered to the county treasurer. It is his duty to collect all taxes upon the tax list and it they are unpaid after June 1st, a 334 TAXATION. 765 on the application of a taxpayer because of mere irregularities, informalities or defects in the proper proceedings leading to the entering of the tax in the proper records. 191 The rule is applied so long as such irregularities or defects do not affect the jus- tice or the validity of the tax nor of acts comitted or omitted based upon some provision of the statute which is held to be of a directory nature. It applies not only to proceedings by vari- ous bodies who act upon and in the levy and assessment of taxes, but also to all papers or documents required by law or custom to be drawn and filed by such officials or official bodies. 192 333. Enforcement of lien. Although the lien for taxes as a rule is a prior, paramount and superior one, yet the state or its delegated agencies must, in the enforcement and collection of the taxes, proceed in the manner required by law of other lienholders of record on property upon which the state seeks to attach its superior lien. 193 The neglect to do this may result in a failure of the proceedings as to other lienholders. In the collection of taxes by action under the stat- ute, the statutory provisions relating to practice apply to the state. 334. Summary proceedings. The power may be given a public corporation to collect a delin- quent tax through what might be termed a summary proceeding, namely, the arbitrary taking of the property subject to tax upon the performance of certain acts required by law. 194 The proper- ten per cent penalty is added, and proper officials and at the proper after January 1st an additional pen- time; if this is not done it cannot alty of five per cent. Taking all of be the basis of a legal special tax the provisions of the statute into levy for school purposes. Mussey consideration the penalties added v. White, 3 Me. (3 Greenl.) 290; to these unpaid taxes were fully au- State v. Edwards, 162 Mo. 660, 63 thorized by law." S. W. 388. isi Le Roy v. City of New York, is City of Newport v. Masonic 4 Johns. Ch. (N. Y.) 352. Temple Ass'n, 20 Ky. L. R. 266, 45 i2 Hoover v. People, 171 111. 182; S. W. 881, 46 S. W. 697; Smith v. People v. Chicago & N. W. R. Co., Gatewood, 3 S. C. 333. 183 111. 311. A certificate required l ^* Merriam v. Moody's Ex'rs, 25 by school law, art. 8, 2, Laws Iowa, 163. The power to tax real 1889, p. 316, must be signed by the property does not necessarily imply 766 PUBLIC REVENUES. 334 ty owner not having the same rights as when the state attempts to collect such delinquent taxes in an ordinary action governed by the usual rules of practice. Statutes conferring such sum- mary power must be strictly followed since to a large degree they partake of the nature of a forfeiture. 185 In these proceed- ings the rule is different from that applied to the enforcement of the right under general laws. There irregularities or informali- ties may be cured through amendment or otherwise without de- feating the right. In summary proceedings each and every act prescribed by law granting the right must be strictly done, both in the manner and at the time provided. A failure or neglect in this respect may result in a loss of the power. 199 The validity the right to sell such property for uing its existence and performing the nonpayment of the taxes lev- its regular functions until a reve- led, nue could be collected by the pro- Bigger v. Ryker, 62 Kan. 482, 63 cesses provided for the enforcement Pac. 740. An act authorizing the of debts owing to individuals, it sale of real estate for delinquent would be continually at the mercy taxes does not conflict with the con- of factions and discontented par- stitutional provision that a person ties." cannot be deprived of his property 195 Hays v. Hogan, 5 Cal. 241 ; But- without his consent except by due ler v. Nevin, 88 111. 575; City of St. process of law. Louis v. Russell, 9 Mo. 507. The Edwards v. Taliafero, 34 Mich, grant of the power to tax does not 13; 'Loose v. Navarre, 95 Mich. 603, of itself imply the right to sell 55 N. W. 435. If the tax be void, property for the nonpayment of a the whole proceeding for their col- tax levy; where, however, the grant lection necessarily fails. Bergen v. provides for a redemption of prop- Clarkson, 6 N. J. Law (1 Halst.) erty sold, the right to sell is then 352; Bole v. McKelvy, 189 Pa. 505. clearly implied. Cooley, Taxation, p. 432. "Very Doe v. Whitlock, 1 Tyler (Vt.) summary remedies have been al- 305; Lane v. James, 25 Vt. 481; lowed, in every age and country, City of Alexandria v. Hunter, 2 for the collection by the govern- Munf. (Va.) 228. In summary pro- ment of its revenues. They have ceedings nothing will be presumed been considered a matter of state in favor of the plaintiff, necessity. Without them, it might iss state v. Mayhew, 2 Gill. (Md.) be possible for a party which had *87; Collamer v. Drury, 16 Vt. 574. been defeated in its efforts to ob- "The question how far a tax bill tain possession of the government and warrant regular upon their face in the constitutional way, to crip- are a justification to the collector, pie the government for the time be- is presented for adjudication. The ing, and possibly to break it up al- words of the present statute are 'No together. If the state might be de- collector shall be liable to any ac- prived of the resources for contin- tion which shall accrue in conse- 334 TAXATION. 767 of the tax is necessarily the basis of all subsequent legal pro- ceedings and if its character be established as invalid they will necessarily fail and tax leases, deeds or other conveyances given in execution of a summary power, will be void. 197 These proceedings usually provide, in connection with the col- lection of delinquent taxes, for a sale of the property subject to the tax 198 upon the publication of a delinquent tax list; this list quence of any mistake, mischarge or overcharge in the tax bill com- mitted to him for collection.' This provision is substantially the same with that contained in the statute of 1797 and which has been in force ever since that time. It has never been considered in this state, that the tax bill and warrant were, of themselves, any sufficient justifica- tion to the officer. Neither the vote of the town, nor the assessment of the tax by the selectmen, is in the nature of the proceedings of a court either of general or special jurisdic- tion. The legality of all the pre- vious proceedings must be shown by the collector. The 'mistake, mis- charge or overcharge' alluded to in the statute cited, doubtless refer solely to the writing out the assess- ment, and the little mistakes which might always be liable to occur, if strict mathematical accuracy were required." 197 Haines v. Young, 132 Cal. 512, 64 Pac. 1079. A tax deed issued upon the nonpayment of assess- ments for local improvements is not prima facie evidence of the validity of all preceding steps. Ansley v. Wilson, 50 Ga. 418; Packard v. Inhabitants of New Lim- erick, 34 Me. 266. A town does not warrant a title to property conveyed by it under a tax deed and is not liable to the purchaser on a failure of title. Edwards v. Taliafero, 34 Mich. 13; Loose T. Navarre, 95 Mich. 603, 55 N. W. 435; City of St. Louis v. Gorman, 29 Mo. 593. A city is not estopped to claim property as its own by the action of its officers in taxing by mistake property belong- ing to the city which is subsequent- ly sold upon a failure to pay the taxes levied and conveyed to third parties by the city. Leavitt v. Bell, 55 Neb. 57, 75 N. W. 524. The burden of showing the validity of the tax lien is upon the one seeking to enforce it. Lane v. James, 25 Vt. 481; Howe v. Barto, 12 Wash. 627. A provision in a city charter that the tax deed should be prima facie evidence of the regularity of all prior proceed- ings is not objectionable as pre- scribing a rule of evidence for the state courts. Phelps r. City of Ta- coma, 15 Wash. 367; Whiton v. Rock County, 16 Wis. 44. i98Worthen v. Badgett, 32 Ark. 496; Shaw v. Lockett, 14 Colo. App. 413, 60 Pac. 363. Where a tract of land is partly within and partly without the jurisdiction of a tax- ing district, that part only within can be taxed, and in case of non- payment of the tax levied, sold. Deason v. Dixon, 54 Miss. 585. The land attempted to be sold must be within the jurisdiction of the taxing district, a change of bound- aries will result in the loss of the right of a municipal corporation to sell lands formerly within its 768 PUBLIC REVENUES. 334 should be in the form and the proceedings leading to the sale per- formed in the manner prescribed by the statute. 159 The form of the list, the description of the property, must be accurate, 200 and the sale must be had at the time and place fixed by law. 201 boundaries but by the change placed outside of them. Lockey v. Walker, 12 Mont. 577. The laws authorizing such proceed- ings must not be repugnant to con- stitutional provisions. Landis v. Borough of Sea Isle City, 66 N. J. Law, 558, 49 Atl. 685. A public corporation may have a choice of proceedings for the col- lection of delinquent taxes. Harned v. City of Camden, 66 N. J. Law, 520, 49 Atl. 1082; City of Philadelphia v. Philadelphia & R. R. Co., 1 Pa. Super. Ct. 236. Land of a railroad company beyond what is necessary for the enjoyment and exercise of a corporate franchise is subject to a tax lien and may be sold as the land of any other prop- erty owner. i9 Scheurman v. City of Colum- bus, 106 Ga. 34, following Bacon v. City of Savannah, 86 Ga. 301; Mat- ter of tax sale of lot No. 172, 42 Md. 196. A notice of sale which is not certain either as to time or place is fatally defective. Nelson v. Pierce, 6 N. H. 194. aoopoillon v. Borough of Ruther- ford, 58 N. J. Law, 113; Jordan v. Hyatt, 3 Barb. (N. Y.) 275. The un- divided half of land subject to a tax cannot be sold for the payment of the taxes upon all the land. Erschler v. Lennox, 11 App. Div. 511, 42 N. Y. Supp. 805. "Without considering the question whether the tax sale made by the common council of the city should be deem- ed invalid by reason of the fact of omission of the assessors to state in the assessment roll the quantit*- land assessed, we are of the opinion that before the common council was authorized to sell the land of the defendant, Lucy Lennox, in conse- quence of her failure to pay the tax assessed against her, they were com- pelled to make an order of sale con- taining a particular description of the premises. The statute express- ly provides that, before a sale, such order containing such description shall be made. It will not be doubt- ed that the description to conform to the statute must be substantially correct. The description covering the lot of the defendant to be as- sessed and another larger lot which she did not own, and describing both as the premises of the defendant Lennox, was not the particular de- scription of her lot required by the statute. The error of the common council of the city in the descrip- tion of the lot of tne defendant Len- nox contained in the order cannot be deemed immaterial." Citing Tallman v. White, 2 N. Y. 66; Dike v. Lewis, 4 Denio (N. Y.) 237; Oakley v. Healey, 38 Hun (N. Y.) 244; In re New York Cent. & H. R. R. Co., 90 N. Y. 348; Zink v. Mc- Manus, 121 N. Y. 259; and May v. Traphagen, 139 N. Y. 478. Grace v. City of Bonham, 26 Tex. Civ. App. 161, 63 S. W. 158. A de- scription sufficient to identify the land and which does not mislead the owner is not defective. Potter v. Black, 15 Wash. 186. 201 Montford v. Allen, 111 Ga. 18. An officer without authority cannot postpone a tax sale. Veit v. Graff, ' d. 253; Nixon v. City of Biloxi. /> ^ r- 000 TAXATION. 769 Such proceedings are in the nature not only of a forfeiture but a judgment and all of the rules of law which relate to and affect the entry of judgments must be applied. Laws giving these rights are construed even more strictly than those relating to judgments, since a judgment is the result of a proceeding where all parties have been brought within the jurisdiction of a competent court. Irregularities and informalities will not be considered lightly nor will a failure to do that which the law requires although trivial in its nature be regarded as unessential or unimportant. 202 Those provisions in statutes or ordinances authorizing the seizure and sale of property for the payment of taxes permitting a redemp- tion by the owner are liberally construed in his favor. 203 335. The payment of taxes. The levy, collection and payment of taxes is a political and gov- ernmental act and the medium of payment may be designated. Unless special provision is made for the acceptance of certain evidences of indebtedness, a valid tender of taxes can only be made by an offer of specie or legal tender as established by the United States. 204 Tax officials cannot be compelled to accept in 76 Miss. 810; Brown v. Sharp (Miss.) 31 So. 712. 202Bannon v. Burnes, 39 Fed. 892. "And while the courts should treat with great respect the enactments of the legislative department of gov- ernment, yet the courts which stand as the last resort of the citizen, and the sworn guardian of his property rights, cannot fail to recognize that there are some things which even the legislature cannot do. It cannot take the citizen's private property, even for public use, without due process of law. It cannot prescribe a method by, and the conditions on which, property may be sold for taxes and by the same act declare that when sold, the deed shall be good, although the prescribed meth- od was not pursued and the re- quired conditions of sale were not regarded; especially where such conditions are precedent facts es- Abb. Corp. 49. sential to confer jurisdiction on the body or person undertaking to sell. * * * The city charter prescribes that certain facts shall exist to au- thorize the city collector to adver- tise and sell, as has already been stated. It is a well-established prin- ciple of law that in proceedings in invitum looking to the seizure and appropriation of private property for public uses, every fact which in its nature is jurisdictional must ex- ist before jurisdiction attaches to the tribunal attempting the seizure and appropriation." 203 Crawford v. Liddle, 101 Iowa, 148; Merchants' Realty Co. v. City of St. Paul, 77 Minn. 343, 79 N. W. 1040; Devine v. Franks (N. J. Eq.) 47 Atl. 228; Goodman v. Sanger, 85 Pa. 37; City of San Antonio v. Ber- ry, 92 Tex. 319. 204 Dickson v. Gamble, 16 Fla. GST; Richards v. Stogsdell, 21 Ind. 770 PUBLIC REVENUES. 335 payment of taxes coupons cut from valid state or municipal bonds. 205 A debt due and owing from a public corporation to an individual cannot be off-set by him in payment of a portion of his taxes, nor, 208 under a constitutional provision requiring the payment of taxes in legal tender, can a contract be made between a contractor and a municipality by which a part of the contract obligation assumed on part of the municipality is to be paid by a credit on account of taxes levied or to be levied through a series of years upon property of the contractor. 207 On the contrary, however, where the statutes provide that state, city or county warrants, as well as other evidences of indebted- ness issued by a corporation to whom taxes may be due shall be a legal tender in payment of such taxes, then officials cannot re- fuse to accept such obligations when tendered them. 208 To whom and when. A public corporation has the author- ity to designate officials to whom taxes shall be paid or certain officers may be required to accept all taxes paid with the added duty of apportioning these in the manner provided by law be- tween the various funds or organizations entitled to some portion of them. 209 The county treasurer, to illustrate, may be empow- 74; Staley v. Columbus Tp., 36 Mich, by action against the organization 38; Kahl v. Love, 37 N. J. Law, 5; receiving such taxes not by manda- McLanahan v. City of Syracuse, 18 mus against the officials as receiv- Hun (N. Y.) 259; Wagner v. For- ing such moneys. McConnell v. ter (Tex. Civ. App.) 56 S. W. 560. Hamm, 16 Kan. 228; Fremont, E. & 205 Parsons v. Slaughter, 63 Fed. M. V. R. Co. v. Brown County, 18 876. Neb. 516. Upon the organization of 206 Trenholm v. City Council of a new county from territory former- Charleston, 3 S. C. 347. ly embraced in another, the taxes 207 Wagner v. Porter (Tex. Civ. then become payable to the treas- App.) 56 S. W. 560. urer of the new county. Morse v. 208 Western Town-Lot Co. v. Lane, Hitchcock County, 19 Neb. 566; 7 S. D. 599, 65 N. W. 17, following Bowyer v. City of Camden, 50 N. J. Id., 7 S. D. 1, 62 N. W. 982. Law, 87, 11 Atl. 137; Bridges v. Sul- 209 Britten v. City of Clinton, 8 livan County Sup'rs, 27 Hun (N. 111. App. 164; People v. Suppiger, Y.) 175; Multnomah County Com'rs 103 111. 434; Peoria & P. U. R. Co. v. v. State, 1 Or. 358; City of Salem People, 144 111. 458; City of Gen- v. Marion County, 25 Or. 449, 36 Pac. esee v. Latah County, 4 Idaho, 141, 163; Schuylkill County v. Com., 36 36 Pac. 701; Jefferson School Tp. v. Pa. 524. The taxing district thus School Town of Worthington, 5 Ind. collecting tax levies to be appor- App. 586, 32 N. E. 807. In case of tioned between other districts and an improper apportionment of tax- funds becomes liable to such for es collected, the proper remedy is their quota. 336 TAXATION. 771 ered to receive not only taxes levied for county purposes but also those imposed by the state for its support or by a municipal organization within the limits of the county the treasurer after- wards dividing between these organizations the part to which they are respectively entitled. 210 The time of payment may also be fixed 211 and an arrangement made which will authorize the payment of taxes in installments extending over a series of years or in one, two or three installments throughout the year at times most convenient and designed to render the burden of the tax- payer as light as possible by dividing the payments to be made. This rule is especially applicable to special assessments. 212 336. Their refunding. A tax may be determined as invalid after its payment. If the taxpayer paid it under protest or duress 213 and raised the question of the legality of the tax in a proceeding within the Com. v. City of Chester, 123 Pa. 626; Sheboygan County v. City of Sheboygan, 54 Wis. 415. Unpaid special assessments for street im- provements are included within the term "unpaid taxes" as used in Rev. Stat. 1114, relating to settlements between town and county treasur- ers. 210 Peoria & P. U. R. Co. v. Peo- ple, 144 111. 458, 33 N. E. 873. 211 Rode v. Siebe, 119 Cal. 518, 39 L. R. A. 342; Town of Dixon v. Mayes, 72 Cal. 166, 13 Pac. 471. Where no time is fixed for the pay- ment of municipal taxes, such a tax cannot become delinquent until a date is determined. Wheatly v. City of Covington, 74 Ky. (11 Bush ) 18; City of New Orleans v. Clark, 15 La. Ann. 614; City of Rockland v. Rockland Water Co., 82 Me. 188; O'Flinn v. Mclnnis, 80 Miss. 125, 31 So. 584; Eustis v. City of Henrietta (Tex. Civ. App.) 37 S. W. 632. It is not unlawful for a legislature to provide that munici- pal taxes may become due and de- linquent at a different time from general taxes. 212 City of Brunswick v. Finney, 54 Ga. 317; Lightner v. City of Pe- oria, 150 111. 80; English v. City of Danville, 150 111. 92; Latham v. Vil- lage of Wilmette, 168 111. 153; Gage v. City of Chicago, 195 111. 490; In- diana Bond Co. v. Bruce, 13 Ind. App. 550, 41 N. E. 958; Talcott v. Noel, 107 Iowa, 470; In re One Hun- dred and Eighty-First St., 63 Hun, 629, 17 N. Y. Supp. 917; Ladd v. Gambell, 35 Or. 393; Stratton v. Ore- gon City, 35 Or. 409; Mall v. City of Portland, 35 Or. 89, 56 Pac. 654; Heath v. McCrea, 20 Wash. 342, 55 Pac. 432. An owner may, however, if he desires to, pay his taxes in full at one time and not avail himself of the privilege given of a payment in installments. sisHoke v. City of Atlanta, 107 Ga. 416, 33 S. E. 412. A payment made to prevent a levy on realty is not made under duress. North Carolina R. Co. v. Alamance Com'rs, 77 N. C. 4. Where a part of the tax 772 PUBLIC REVENUES. time required by law, 214 there is then a liability on the part of the corporation for the refunding of such taxes. 215 The right to a re- fund may also exist irrespective of a payment under protest in case the invalidity of the tax is subsequently determined. 216 But this right of the taxpayer may be lost, after the lapse of a certain prescribed time, through his failure to act. 217 The illegality of a tax can be based upon any of the many grounds that may render it void, either because of its being an excessive levy, the purpose for which the tax levy is used, irregular or defective pro- paid is illegal and part valid, a re- fund can be required of the illegal portion. Pell v. City of New York, 31 Misc. 664, 65 N. Y. Supp. 34. A payment made after a threatened sale of property held an involun- tary payment. City of Galveston v. Sydnor, 39 Tex. 236. 214 City of Indianapolis v. Ritzing- er, 21 Ind. App. 65, 56 N. E. 141; Little Rock & M. R. Co. v. Wil- liams, 101 Tenn. 146, 46 S. W. 448; Raleigh v. Salt Lake City, 17 Utah, 130. sis Tippecanoe County Com'rs v. Lucas, 93 U. S. 108; Montgomery & W. P. R. Co. v. Duer, 46 Ga. 272. In an action brought to secure a re- fund of taxes paid, the facts show- ing the illegality of the tax should be fully set forth. Grant County Com'rs v. Delaware County Com'rs, 4 Blackf. (Ind.) 256; Hemingway v. Inhabitants of Machias, 33 Me. 445; Price v. Lan- caster County, 18 Neb. 199. A mu- nicipal corporation acting as a gen- eral tax collector and dividing tax- es so collected among the different organizations entitled to the same is not liable to a taxpayer for a re- fund of taxes held invalid only to the extent of those retained by it for its own purposes. Cavis v. Robertson, 9 N. H. 524; Sherman v. Trustees of Clifton Springs, 27 Hun (N. Y.) 390; Phelps v. City of Tacoma, 15 Wash. 367; State v. Whittlesey, 17 Wash. 447. A law requiring the refund by a municipality of void taxes held val- id. Kellogg v. Winnebago County Sup'rs, 42 Wis. 97. 2ieCorbett v. Widber, 123 Cal. 154; Leonard v. City of Indianapo- lis, 9 Ind. App. 262, 36 N. E. 725; DePauw Plate Glass Co. v. City of Alexandria, 152 Ind. 443; Deady v. Village of Lyons, 39 App. Div. 139, 57 N. Y. Supp. 448; Little Rock & M. R. Co. v. Williams, 101 Tenn. 146; Raleigh v. Salt Lake City, 17 Utah, 130. 217 Centre Tp. v. Marion County, 70 Ind. 562. The syllabus follows: "The fund in the hands of a county treasurer arising from a tax voted by a township to aid in the con- struction of a railroad, where the railroad company has forfeited all right to the same, * * * it not having been diverted into the town- ship funds, belongs to the township, unless it has been demanded by the taxpayers of the township within two years after the passage of the act of 1872, or within two years aft- er the forfeiture thereof by the rail- road company; and such demand being matter of defense, need not be negatived in the complaint in an ac- tion by a township, against a coun- ty, to recover a tax voted by the township." 336 SPECIAL ASSESSMENTS. 773 ceedings in the levy and assessment or because of the use and character of the property against which the tax is levied. 218 II. SPECIAL ASSESSMENTS. 337. Definition and explanation of the term. 338. The exercise of the power to levy. 339. Limitations upon the power. 340. Purpose for which exercised. 341. Extent of exercise. 342. Discretionary power with reference to locating limits of taxing district. 343. Property subject to local assessments. 344. The manner of determining local assessments; conversely, benefits. 345. According to frontage. 346. Assessment based upon location. 347. Levy based upon ascertained benefits. 348. What considered as benefits. 349. Levy based upon area or comparative value of property. 350. Individual liability. 351. Estoppel of taxpayer. 352. Place of assessment. 353. Acquiring jurisdiction; preliminary proceedings. 354. Same subject. 355. Execution of a contract. / 356. Preliminary investigation or estimates. 357. Same subject continued. 358. Jurisdiction acquired through the introduction and passage of an ordinance. 359. Resolutions. 360. Petition by property owners. 361. Declaration of necessity. 362. Construction of the improvement. 363. Notice to property owners. 364. When given. 218 City of Auburn v. Union Wa- Pick.) 75; Turnbull v. Alpena Tp., ter Power Co., 90 Me. 71, 37 Atl. 74 Mich. 621, 42 N. W. 114. An ir- 335. The facts as to the insufn- regularity not prejudicial to the ciency of the call of a meeting of person taxed is not a sufficient the city council at which a tax was ground for declaring the tax illegal, levied, examined and found insuffi- City of Aurora v. Lindsay, 146 Mo. cient to render a tax illegal. Stick- 509; State v. Montgomery County ney v. City of Bangor, 30 Me. 404; Com'rs, 31 Ohio St. 271; Wright v. Trim v. Inhabitants of Charleston, City of San Antonio (Tex. Civ. 41 Me. 504; Williams v. School App.) 50 S, W. 406. ,Dist. in Lunenburg, 38 Mass. (21 774 PUBLIC REVENUES. 337 365. How given and to whom. 366. Result of a failure to give notice. 367. Variance of proceedings from notice given. 368. Benefits the basis of assessment. 369. Presumption of validity. 370. Estoppel of public corporations. 371. Form of reports, assessment rolls and other necessary pa- pers. 372. Opportunity for investigation and examination. 373. The right of correction and review. 374. Parties to appeal proceedings. 375. Review by the courts. 376. Review by other bodies. 377. The right of appeal or review; manner and time of exercise. 378. Conclusiveness of decision. 379. Review and correction. 380. What questions raised on appeal and review. 381. Estoppel of property owner. 382. The same subject; propositions negatively stated. 383. Right of appeal as based on omission to tax other property. 384. Excessive assessment. 385. Judicial confirmation of an assessment roll. 386. Reassessment or supplemental assessment. 387. Curative legislation. 388. Collateral attack. 389. Lien and priority of special assessments. 390. The same subject continued. 391. Collection of special assessments. 392. Manner and amount of collection. 393. Same subject; summary proceedings. 394. Time of collection. 395. The rights of a property owner. 396. Personal liability. 397. Recovery of invalid assessments. 337. Definition and explanation of the term. The word taxation in its proper sense is a generic one and designates that power governmental and political in its nature which enables a government to levy and collect enforced contri- butions for its support. Ordinarily, the term is understood as referring to general taxes levied upon real and personal proper- ty, the moneys derived used to maintain and support the public and general expenses of the government. In the proper use of the word it includes, however, that species of taxation termed "Local or special assessments." The authorities are agreed that g 337 SPECIAL ASSESSMENTS. 775 these are valid because imposed through the exercise of the tax- ing power. 219 There exists, however, a clear, well defined and well established difference in the basis for the levy of the two. A levy of taxes, as the word is commonly used, is based upon a governmental necessity irrespective of the immediate or personal return or benefit to the individual paying the tax. So long as the taxes levied are uniform and equal and conform to other constitutional restrictions or limitations in their levy and collec- tion, they will be considered legal. 220 The idea of uniformity and equality being based and depending upon the amount of taxes levied as proportioned to the actual value of the property upon which levied ; such valuation of the property being de- termined by its character and use. The idea of benefits received does not in theory enter into a determination of the legality of the tax. 221 A special or local assessment, however, involves the idea of an immediate and special benefit as a basis for its levy, and the doctrine is well established that there can be a levy or imposition of special assessments or taxes only in proportion to the benefits specially, actually and physically received by the property taxed as will be seen upon an examination of the au- thorities considered in succeeding sections. 222 The determina- tion of the extent of benefits received and the manner of ascer- taining them whether based upon frontage, propinquity or the reception of a special benefit, are questions of legislative expe- diency. The legislative body of each state possesses the right to determine these questions, subject only to pertinent restrictions or provisions found in organic law. 223 This principle is firmly 219 Board of Councilmen f of Milford, o- Me. 315. See, also, Frankfort v. Scott, 19 Ky. L. R. 300 et seq., supra. 1068, 42 S. W. 104; City of Rich- 222 See authorities cited in the mond v. Gibson, 20 Ky. L. R. 358, next following notes: Zehnder v. 46 S. W. 702; Hughes v. Carl, 21 Ky. Barber Asphalt Pav. Co.. 106 Fed. L. R. 6, 50 S. W. 852; Billiard v. 103; Kansas City, P. & G. R. Co. r. City of Asheville, 118 N. C. 845, Water-works Imp. Dist. No. 1, 68 24 S. E. 738. Ark. 376, 59 S. W. 248; Thomas v. 220 Emery v. San Francisco Gas Gain, 35 Mich. 155; Richmond & A. Co., 28 Cal. 345; Hines v. City of R. Co. v. Lynchburg, 81 Va. 473; Leavenworth, 3 Kan. 186; In re Soule v. City of Seattle. 6 Wash. City of New York, 11 Johns. (N. 315; Germond v. City of Tacoma, 6 Y.) 77. Wash. 365; Yates v. City of Mil- 221 Hagar v. Yolo County Sup'rs, waukee, 92 Wis. 352, 66 N. W. 248. 47 Cal. 222; Perkins v. Inhabitants 223 French v. Barber Asphalt Pav. 776 PUBLIC REVENUES. 337 Co., 181 U. S. 324. This case, both in the briefs filed by the counsel for the respective parties and the opinion itself, contains an exhaust- ive citation and analysis of the au- thorities upon the question sug- gested in the text as well as others relative to an authorization by the legislature for the apportionment of the entire cost of a street pave- ment upon abutting lots according to their frontage and without any preliminary hearing as to benefits. In view of the fact that the reports of the supreme court of the United States are in the hands of every- one interested in this question, these authorities will not be repeat- ed here. In its opinion in this case by Mr. Justice Shiras the court said in part: "In Mattingly T. District of Columbia, 97 U. S. 687, 692, 24 Law. Ed. 1098, 1100, there was call- ed in question the validity of the act of Congress June 19, 1878 (20 Stat. 166, c. 309), entitled 'An act tp provide for the revision and cor- rection of assessments for special improvements in the District of Columbia and for other purposes,' and it was said by this court, through Mr. Justice Strong: 'It may be that the burden laid upon the property of the complainants is onerous. Special assessments for special road or street improve- ments very often are oppressive. But that the legislative power may authorize them, and may direct them to be made in proportion to the frontage, area, or market value of the adjoining property, at its dis- cretion, is, under the decisions, no longer an open question.' "In Kelly v. City of Pittsburgh, 104 U. S. 78, 26 Law. Ed. 658, it was urged that land which the own- er had not laid off into town lots, but occupied for agricultural pur- poses, and through which no streets are run or used, cannot be, even by the legislature, subjected to the taxes of a city, the water tax, the gas tax, the street tax, and others of similar character. The reason for this was said to be that such taxes are for the benefit of those in a city who own property within the limits of such improvements, and who use or might use them if they choose, while he reaps no such benefit. * * * "The tax in question was assessed and the proper officers were pro- ceeding to collect it in this way. The distinct ground on which this provision of the Constitution of the United States is invoked is that as the land in question is, and always has been, used as farm land, for ag- ricultural purposes only, subjecting it to taxation for ordinary city pur- poses deprives the plaintiff in error of his property without due process of law. It is alleged, and probably with truth, that the estimate of the value of the land for taxation is very greatly in excess of its true value. Whether this be true or not we cannot here inquire. We have so often decided that we cannot re- view and correct the errors and mistakes of the state tribunals on that subject that it is only neces- sary to refer to those decisions, without a restatement of the argu- ment on which they rest. "In Spencer v. Merchant, 125 U. S. 345, a judgment of the court of appeals of the state of New York, upholding the validity of an assess- ment upon lands to cover the ex- pense of a local improvement, was brought to this court for review 337 SPECIAL ASSESSMENTS. 777 established and the further one that a special assessment to be valid must not be levied in substantial excess of the benefits con- tipon the allegation that the state statute was unconstitutional. In the opinion of this court, delivered by Mr. Justice Gray, the following extract was given from the opinion of the court of appeals: 'The act of 1881 determines abso- lutely and conclusively the amount of the tax to be raised, and the property to be assessed, and upon which is to be apportioned. Each of these things was in the power of the legislature, whose action can- not be reviewed in the courts upon the ground that it acted unjustly or without appropriate and adequate reason. The legislature may com- mit the ascertainment of the sum to be raised and of the benefited dis- trict to commissioners; but it is not bound to do so, and may settle both questions for itself; and when it does so, its action is necessarily con- clusive and beyond review. 'In the absence of any more spe- cific constitutional restriction than the general prohibition against tak- ing property without due process of law, the legislature of the state hav- ing the power to fix the sum nec- essary to be levied for the expense of a public improvement, and to order it to be assessed, either, like other taxes, upon property general- ly, or only upon the lands benefited by the improvement, is authorized to determine both the amount of the whole tax and the class of lands which will receive the benefit and should, therefore, bear the burden, although it may, if it sees fit, com- mit the ascertainment of either or both of these facts to the judgment of commissioners. When the deter- mination of the lands to be bene- fited is entrusted to commissioners, the owners may be entitled to no- tice and hearing upon the question whether their lands are benefited and how much. But the legislature has the power to determine by the statute imposing the tax, what lands which might be benefited by the improvement are in fact bene- fited; and if it does so, its deter- mination is conclusive upon the owners and the courts, and the own- ers have no right to be heard upon the question whether their lands are benefited or not, but only upon the validity of the assessment and its apportionment among the different parcels of the class which the leg- islature has conclusively determined to be benefited. In determining what lands are benefited by the im- provement, the legislature may avail itself of such information as it deems sufficient, either through investigations by its committees or by adopting as its own the esti- mates or conclusions of others, whether those estimates or conclu- sions previously had or had not any legal sanction.' * * * "This array of authority was con- fronted, in the courts below, with the decision of this court in the case of Norwood v. Baker, 172 U. S. 269, which was claimed to overrule our previous cases, and to establish the principle that the cost of a local improvement cannot be assessed against abutting property according to frontage, unless the law under which the improvement is made pro- vides for a preliminary hearing as to the benefits to be derived by the property to be assessed. "But we agree with the Supreme 778 PUBLIC REVENUES. 337 ferred by the local improvement for the making of which the tax is levied.- 2 * "Where the legislature fixes a liability for local court of Missouri in its view that United States, courts should declare such is not the necessary legal im- them void. port of the decision in Norwood v. Kelly v. Luning, 76 Cal. 309, 18 Baker, 172 U. S. 269. That was a Pac. 335. A legislature has no case where, by a village ordinance right, however, after the commence- apparently aimed at a single person ment of work on a local improve- a portion of whose property was ment to change the method of raak- condemned for a street, the entire ing assessments to pay its cost im- cost of opening the street, including posing a liability under the new not only the full amount paid for method on property which did not the strip condemned, but the cost exist at the time the work was com- and expenses of the condemnation menced. proceedings, was thrown upon the English v. City of Wilmington, 2 abutting property of the person Marv. (Del.) 63, 37 Atl. 158; Ba- whose land was condemned. This ap- con v. City of Savannah, 86 Ga. peared, both to the court below and 301; Murphy v. People, 120 111. 234, a majority of the judges of this court, 11 N. E. 202; City of Peoria v. Kid- to be an abuse of the law, an act der, 26 111. 351; Job v. City of Al- of confiscation, and not a valid ex- ton, 189 111. 256; Ft. Dodge Elec. ercise of the taxing power. Light & Power Co. v. City of Ft. "That this decision did not go to Dodge, 115 Iowa, 568, 89 N. W. 7; the extent claimed by the plaintiff Brooks v. City of Baltimore, 48 Md. in error in this case is evident, be- 265; Nickerson v. City of Boston, cause in the opinion of the majority 131 Mass. 306; Inhabitants of Leo- it is expressly said that the decision minster v. Conant, 139 Mass. 384; was not inconsistent with our de- Carpenter v. City of St. Paul, 23 cisions in Parsons v. District of Co- Minn. 232; City of St. Joseph v. lumbia, 170 U. S. 45, and in Spencer Anthony, 30 Mo. 537; State v. Dodge v. Merchant, 125 U. S. 345, 357." County Com'rs, 8 Neb. 124; Hoetzel Town of Tonawanda v. Lyon, 181 v. East Orange, 50 N. J. Law, 354, U. S. 389; Cass Farm Co. v. City 12 Atl. 911; Wilson v. Inhabitants of Detroit, 181 U. S. 396, affirming of Trenton, 55 N. J. Law, 220, 26 124 Mich. 433, 83 N. W. 108; City Atl. 83; J. & A. McKechnie Brew- of Detroit v. Parker, 181 U. S. 399, ing Co. v. Trustees of Canandaigua, reversing Parker v. City of Detroit, 162 N. Y. 631, 57 N. E. 1113, affirm- 103 Fed. 357; Goodrich v. City of ing 15 App. Div. 139, 44 N. Y. Detroit, 184 U. S. 432. In White v. Supp. 317; People v. Pitt, 169 N. Y. City of Tacoma, 109 Fed. 32, it 521, 58 L. R. A. 372. is held that where local assessments Webster v. City of Fargo, 9 N. D. made in accordance with the front- 208, 56 L. R. A. 156. The benefit foot rule practically confiscate the received by the making of a locaT property against which they are di- improvement is not necessarily rected contrary to the 14th amend- measured by its increase in market- ment of the Constitution of the able value therefrom. 337 SPECIAL ASSESSMENTS. 779 assessments on abutting property, it will be presumed it has de- termined that the cost of the local improvement will not exceed Rolph v. City of Fargo, 7 N. D. 640; Hill v. Higdon, 5 Ohio St. 243. It is competent for the legislature to authorize municipal corporations to levy special assessments for lo- cal improvements upon real estate peculiarly and specially benefited and in proportion to such benefit. Northern Indiana R. Co. v. Con- nelly, 10 Ohio St. 159; Maloy v. Marietta, 11 Ohio St. 636; Bonsall v. Town of Lebanon, 19 Ohio, 413; Cleveland v. Tripp, 13 R. I. 50; Johnson v. City of Milwaukee, 40 Wis. 315. 224 Norwood v. Baker, 172 U. S. 269. In its opinion in this case the court say: "It is one thing for the legislature to prescribe it as a gen- eral rule that property abutting on a street opened by the public shall be deemed to have been specially benefited by such improvement, and therefore should specially contribute to the cost incurred by the public. It is quite a different thing to lay it down as an absolute rule that such property, whether it is in fact benefited or not by opening of the street, may be assessed by the front foot for a fixed sum representing the whole cost of the improvement, and without any right in the prop- erty owner to show, when an assess- ment of that kind is made or is about to be made, that the sum so fixed is in excess of the benefits re- ceived. In our judgment, the exac- tion from the owner of private property of the cost of a public im- provement in substantial excess of the special benefits accruing to him is, to the extent of such excess, a taking, under the guise of taxation, of private property for public use without compensation. We say 'substantial excess,' because exact equality of taxation is not always at- tainable, and for that reason ine ex- cess of cost over special benefits, un- less it be of a material character, ought not to be regarded by a court of equity when its aid is invoked to restrain the enforcement of a special assessment." Further in the same case the court also said: "The decree does not prevent the village, if it has or obtains power to that end, from proceeding to make an assessment in conformity with the view indicated in this opinion; namely: That while abutting prop- erty may be specially assessed on account of the expense attending the opening of a public street in front of it, such assessment must be measured or limited by the special benefits accruing to it, that is, by benefits that are not shared by the general public; and that taxation of the abutting property for any sub- stantial excess of such expense over special benefits will, to the extent of such excess, be a taking of private property for public use without com- pensation." See, also, the authori- ties cited and discussed in this case as well as in the case of French v. Barber Asphalt Pav. Co., 181 U. S. 324, including dissenting opinion. Loeb v. Columbia Tp., 91 Fed. 37; Fay v. City of Springfield, 94 Fed. 409; Charles v. City of Marion, 98 Fed. 166; Cowley v. City of Spo- kane, 99 Fed. 840; White v. City of Tacoma, 109 Fed. 32. Davidson v. Wight, 16 App. D. C. 371. An act which provides arbi- 780 PUBLIC REVENUES. 337 trarily a minimum assessment with- out considering the question of spe- cial benefits is unconstitutional and void. The assessment cannot ex- ceed the special benefit which has accrued to it from the public im- provement adjacent to it. Kelly v. Chadwick, 104 La. 719, 29 So. 295; City of Atlanta v. Hamlein, 96 Ga. 381. A special assessment to the extent of $721 upon a lot valued at the highest estimate at $260 held prima facie invalid. Bedard v. Hall, 44 111. 91; Gree- ley v. People, 60 111. 19; Newman v. City of Chicago, 153 111. 469; Byram v. Marion County Com'rs, 145 Ind. 240, 44 N. E. 357, 33 L. R. A. 476; Adams v. City of Shelbyville, 154 Ind. 467, 49 L. R. A. 797; McKee v. Town of Pendleton, 154 Ind. 652; Wray v. Fry, 158 Ind. 92, 62 N. E. 1004. Allen v. City of Davenport, 107 Iowa, 90, 77 N. W. 532. The court held in this case that the front- foot rule applied although the local assessment exceeded the benefits re- ceived from the construction of the local improvement. Keith v. City of Boston, 120 Mass. 108; City of Boston v. Boston & A. R. Co., 170 Mass. 95. Sears v. City of Boston, 173 Mass. 71, 43 L. R. A. 834. The special as- sessment in this case was levied to meet the coct of watering streets and the court said: "It is now es- tablished by the highest judicial au- thority that such assessments can- not be so laid upon any estate as to be in substantial excess of the ben- efit received. The case of Norwood v. Baker, 172 U. S. 269, 43 Law. Ed. 443, 19 Sup. Ct. 187, contains an elaborate discussion of the subject, with a citation of authorities from many of the states, and holds that a local assessment for an amount in substantial excess of the benefit re- ceived is in violation of the 14th Amendment to the Constitution of the United States, in as much as it would deprive one of his property without compensation, and so with- out due process of law. The au- thority of this case is controlling in all state courts, and if it were not, it is in accordance with sound prin- ciples, and with the great weight of authority in other courts. The principles which have often been stated by this court lead to the same result. City of Boston v. Bos- ton & A. R. Co., 170 Mass. 95, 101, 49 N. E. 95, and cases cited." In the case of Sears v. City of Boston, 173 Mass. 71, 43 L. R. A. 834; Sears v. Street Com'rs of Boston, 173 Mass. 350, Mr. Justice Knowlton said: "If we treat the determina- tion of these charges as a local and special assessment upon particular estates, we have to consider the prin- ciples on which such taxation is founded. It is well established that taxation of this kind is permissible under the Constitution of this Com- monwealth and under the Constitu- tion of the United States, only when founded upon special and peculiar benefits to the property from the ex- penditure on account of which the tax is laid, and then only to an amount not exceeding such special and peculiar benefits. * * * The fact that the charges to be deter- mined are for the construction, maintenance, and operation of the sewerage works of the whole city, gives some force to the possibility of a construction which includes all benefits; but whether this construc- tion should be adopted or not, the charges may be determined on any grounds which the street commis- g 337 SPECIAL ASSESSMENTS. 781 the benefits. 225 Under any method if there is an excess of cost which may be charged against property liable over the benefits sioners deem just and proper, and may not be founded in any great de- gree, if at all, upon special and pe- culiar benefits, and may in any par- ticular case largely exceed such ben- efits. This fact in itself is enough to bring the statute within the pro- hibition of the Constitution, inas- much as it purports to authorize a taking of property to pay a charge which is not founded on a special benefit or equivalent received by the estate or its owner. Such a taking would be without due process of law." Dexter v. City of Boston, 176 Mass. 247. The court here said: "It is now settled law in this court as it is in the Supreme court of the United States and in many other courts that after the construction of a public improvement, a local assessment for the cost of it cannot be laid upon real estate in substan- tial excess of the benefit received by the property. Such assessments must be founded on the benefits and be proportional to the benefits." Motz v. City of Detroit, 18 Mich. 495; Thomas v. Gain, 35 Mich. 155; Rogers v. City of St. Paul, 22 Minn. 494. "The principle of local assess- ments is that the special benefits which will accrue to a property owner from a proposed local im- provement will be, at least, equal to the tax assessed upon his property on account of such improvement." The court also held in this case that "taxation exceeding special bene- fits" would, therefore, be invalid. State v. Robert P. Lewis Co., 82 Minn. 390, 86 N. W. 611, 53 L. R. A. 421. Sp. Laws Minn. 1885, c. 110. 26, 27, is constitutional not tak- ing property without due process of law and without just compensation. Reversing 82 Minn. 390, 85 N. W. 207. This act, the City charter of St. Paul, provides for an assess- ment of ten cents per lineal foot of frontage against all lots in front of which water pipes are laid. Simpson v. Kansas City, 46 Kan. 638, 26 Pac. 721. The cost of the improvement as a whole should be considered and th/e proportionate part according to the measure adopted assessed upon property sub- ject to the assessment for the pay- ment of its construction. It is im- proper to assess against abutting property the cost of the construction of the improvement for that par- ticular part in front of such abut- ting property. New Brunswick Rubber Co. v. New Brunswick Sewer Com'rs, 38 N. J. Law, 190; People v. City of Brooklyn, 23 Barb. (N. Y.) 166; Dyker Meadow Land & Imp. Co. v. Cook, 3 App. Div. 164, 38 N. Y. Supp. 222. The legislature has the power to exempt property from the pay- ment not only of general taxes but also of special assessments. Steb- bins v. Kay, 51 Hun (N. Y.) 589; Walsh v. Barren, 61 Ohio St. 15; City of Dayton v. Bauman, 66 Ohio St. 379, 64 N. E. 433; Hutcheson v. Storrie, 92 Tex. 688. 225 Chicago & A. R. Co. v. City of Joliet, 153 111. 649. This case, as well as the one mentioned above, supra, held that under lawful au- thority, the action of a city council levying a special tax on property is conclusive that it has been benefited to the extent of the assessment. Davis v. City of Litchfield, 155 111. 782 PUBLIC REVENUES. 337 received, such excess must be provided for from the general cor- porate revenues, 226 and it is also within the province of legis- lative discretion to provide that an arbitrary proportion of the cost shall be borne by the general revenues and a part of it by private property liable in the manner fixed ; 227 but the assessment levied upon property under any basis cannot exceed the cost of the improvement. 228 384; Sigler v. Fuller, 34 N. J. Law, 227; In re Roberts, 81 N. Y. 62; Northern Indiana R. Co. v. Connelly, 10 Ohio St. 159; Schenley v. Com., 36 Pa. 29. 226 St. John v. City of East St. Louis, 50 111. 92; Adams v. City of Shelbyville, 154 Ind. 467, 49 L. R. A. 797; Hoboken Land & Imp. Co. v. City of Hoboken, 36 N. J. Law, 291; Frevert v. City of Bayonne, 63 N. J. Law, 202, 42 Atl. 773; In re Beechwood Ave, 194 Pa. 86. The fact that property will also pay its portion of the general taxes under such a rule in addition to the spe- cial assessments levied does not ren- der the special assessments illegal. 227 city Council of Montgomery v. Birdsong, 126 Ala. 632, 28 So. 522; City of Galesburg v. Searles, 114 111. 217; Watson v. City of Chi- cago, 115 111. 78; City of Sterliug v. Gait, 117 111. 11; City of Jackson- ville v. Hamill, 178 111. 235. Birket v. City of Peoria, 185 111. 369, citing Bigelow v. City of Chicago, 90 111. 49, and Fagan v. City of Chicago, 84 111. 227. Garden City v. Trigg, 57 Kan. 632, 47 Pac. 524. A stipulation for the same result will also be held valid. Maddux v. City of Newport, 12 Ky. L. R. 657, 14 S. W. 957; Cassidy v. City of Covington, 12 Ky. L. R. 980, 16 S. W. 93; Barber Asphalt Pav. Co. v. Gogreve, 41 La. Ann. 251; Kel- ly v. Chadwick, 104 La. 719, 29 So. 295; Alberger v. City of Baltimore, 64 Md. 1; Weed v. City of Boston, 172 Mass. 28, 51 N. E. 204, 42 L. R. A. 642. But if such arbitrary amount as assessed on abutting property owners is unreliable and disproportionate as compared by benefits, such legislation may be held invalid. Copeland v. City of Spring- field, 166 Mass. 498; Hutchinson v. City of Omaha, 52 Neb. 345, 72 N. W. 218; In re Opening of One Hun- dred & Sixty-Seventh St., 68 Hun, 158, 22 N. Y. Supp. 604; In re Turf- ler, 44 Barb. (N. Y.) 46; People v. Molloy, 161 N. Y. 621, 55 N. E. 1099, affirming 35 App. Div. 136, 54 N. Y. Supp. 1084; Hilliard v. City of Asheville, 118 N. C. 845; Ken- sington Com'rs v. Keith, 2 Pa. 218; Allen v. City of Galveston, 51 Tex. 302. Legislation, however, whicb. does not take into consideration the benefits to be received by the prop- erty holder is unconstitutional. City of El Paso v. Mundy, 85 Tex. 316; City of Parkersburg v. Taven- ner, 42 W. Va. 486. 228 Davis v. City of Litchfield, 145 111. 313, 33 N. E. 888, 21 L. R. A. 563. The rule is applied here that an ordinance based upon the prin- ciple of charging abutting property with the cost of the improvement Immediately fronting is illegal as imposing the burden unequally and without consideration of the ques- tion of benefits received. Jackson v. Smith, 120 Ind. 520: Lorden v. Coffey, 178 Mass. 489, 60 337 SPECIAL ASSESSMENTS. 783 The justice of this method of taxation is universally conceded. At one time the attempt was made to establish the right to make a local assessment as an exercise of the police power rather than the power of taxation but this has been abandoned; there is no doubt but that the right to levy special assessments is a part of the power of taxation. 2 - 9 All the principles which control the N. E. 124. St. of Mass. 1892, c. 418, 8, which provides that the cost of a local improvement shall be a lien upon the land without personal lia- bility is void since the benefit may be less than the cost, the act fur- ther providing that the cost should be assessed proportionately against the property receiving benefits. Thayer v. City of Grand Rapids, 82 Mich. 298, 46 N. W. 228. If there is a surplus in excess of the cost of moneys collected from assessments, it shall be apportioned and repaid on demand to those originally con- tributing it. An action in assump- sit by a taxpayer will lie against the city to recover the amount to which he is entitled. State v. Pillsbury, 82 Minn. 359. The authorities fully collated and reviewed in this case. Ex parte City of Albany, 23 Wend. (N. Y.) 277. An assessment based upon ben- efits is valid though it exceed the actual cost of constructing the local improvement adjacent. Spangler v. City of Cleveland, 35 Ohio St. 469; City of Dallas v. Em- erson (Tex. Civ. App.) 36 S. W. 304; Yesler v. City of Seattle, 1 Wash. St. 308; City of Seattle v. Yesler, 1 Wash. T. 571; State v. City of Portage, 12 Wis. 562. But see Parsons v. District of Columbia, 170 U. S. 45, which holds a special as- sessment in excess of the cost of the improvement valid when it is the purpose in levying such assessment to pay not only the original cost of the improvement but also to create and maintain a fund for its repair. 229 in Keese V. City of Denver, 10 Colo. 112, it is held, however, that a local assessment levied according to the front-foot rule for the building of a sewer is a valid exercise of the police power. In City of Peoria v. Kidder, 26 111. 351, and City of Chi- cago v. Lamed, 34 111. 203, it is held that assessments for street im- provements are not taxes within the meaning of the Illinois constitution in force at that time and could only be made through the exercise of the power of eminent domain. Bradley v. McAtee, 70 Ky. (7 Bush) 667; Motz v. City of Detroit, 18 Mich. 495; McComb v. Bell, 2 Minn. 295 (Gil. 256). The making of a local assessment to pay the cost of an improvement is an exercise of the power of taxation, not that of eminent domain. Striker v. Kelly, 7 Hill (N. Y.) 9; Brewster v. City of Syracuse, 19 N. Y. 116; J. & A. McKechnie Brewing Co. v. Village of Canandaigua, 162 N. Y. 631, 57 N. E. 1113, affirming 15 App. Div. 139, 44 N. Y. Supp. 317; In re Open- ing of Whitlock Ave., 51 App. Div. 436, 64 N. Y. Supp. 717; City of Raleigh v. Peace, 110 N. C. 32, 14 S. E. 521, 17 L. R. A. 330. Merri- man, C. J., and Davis, J., dissent- ing. King v. City of Portland, 2 Or. 146; In re Vacation of Centre St., 115 Pa. 247, 8 Atl. 56; Allen v. Drew, 44 Vt. 174. The court in this case 784 PUBLIC REVENUES. 337 making, the levy or the collection of special assessments, are those which control and regulate the making, levying and collect- ing of governmental taxes; and constitutional provisions also ap- ply. 230 That constitutional limitation requiring all taxes to be uniform and equal applies equally to the making of local assess- ments; but uniformity and equality as applied to general taxa- tion involves the idea of valuation. The legality of a local as- sessment as determined by this same principle of uniformity and equality depends upon the relative benefit received by the prop- erty assessed. 231 There axe many local improvements such as said that the levy of local assess- ments for the building of sewers, sidewalks, drains and other local improvements and the apportion- ment of the expense in a ratio of the benefits received was an exercise of the right of taxation inherent in every sovereign state. It was not a taking of private property for pub- lic use under the right of eminent domain. 230 Noonan v. City of Stillwater, 33 Minn. 198. 231 The following cases consider constitutional or other provisions relative to uniformity and equality of taxation as applied to local as- sessments. An examination of them proves the rule stated in the text; even those which hold that such constitutional provisions do not ap- ply to local assessments sustain the principle that they must be levied in an equal and uniform manner in proportion to the benefits receiv- ed. People v. Lynch, 51 Cal. 15; Violett v. City Council of Alexan- dria, 92 Va. 561, 31 L. R. A. 382; Bedard v. Hall, 44 111. 91; Hundley v. Lincoln Park Com'rs, 67 111. 559; Gilcrest v. McCartney, 97 Iowa, 138, "6 N. W. 103; Hines v. City of Leav- nworth, 3 Kan. 186; Holzhauer v. "Mty of Newport, 94 Ky. 396; Gos- aell v. City of Louisville, 20 Ky. L. R. 519, 46 S. W. 722; Sears v. Street Com'rs of Boston, 173 Mass. 350, 53 N. E. 876; Jones v. Water Com'rs of Detroit, 34 Mich. 273; In re Willis Ave., 56 Mich. 244; State v. St. Louis County Dist. Ct., 66 Minn. 161; Adams v. Lindell, 5 Mo. App. 197, 72 Mo. 198; McGuire v. Brock- man, 58 Mo. App. 307; Farrar v. City of St. Louis, 80 Mo. 379; Kit- tle v. Shervin, 11 Neb. 65. Jones v. Holzapfel, 11 Okl. 405, 68 Pac. 511. But special assessments are not taxes within the meaning of the organic act declaring that all property shall be taxed in propor- tion to its value. Ladd v. Gambell, 35 Or. 393; Appeal of Protestant Orphan Asylum, 111 Pa. 135; Wi- nona & St. P. R. Co. v. City of Wa- tertown, 1 S. D. 46; Mauldin v. City Council of Greenville, 42 S. C. 293, 27 L. R. A. 284; Lovenberg v. City of Galveston, 17 Tex. Civ. App. 162, 42 S. W. 1024. In Taylor v. Boyd, 63 Tex. 533, it is held that assessments for local improvements are not taxes within the constitutional provision requir- ing regularity and uniformity. City of Norfolk v. Chamberlain, 89 Va. 196; City of Spokane Falls v. Browne, 3 Wash. St. 84; Hansen v. Hammer, 15 Wash. 315. The following cases hold constitu- 337 SPECIAL ASSESSMENTS. 785 the construction and improvement of highways, the laying of water mains and sewers which result in a benefit or advantage to the community at large, yet that benefit or advantage is re- mote in its character and trivial in its extent. The immediate advantage and benefit resulting from the construction of such improvement accrues to the property immediately adjacent 013 adjoining it. That the property thus specially benefited should meet the burden created is everywhere conceded. 23 * tional provisions that all taxes shall be equal and uniform do not apply to assessments for local improve- ments: Burnett v. City of Sacra- mento, 12 Cal. 76; Emery v. San Francisco Gas Co., 28 Cal. 345; City of Denver v. Knowles, 17 Colo. 204, 17 L. R. A. 135; Edgerton v. Town of Green Cove Springs, 19 Fla. 140; Speer v. City of Athens, 85 Ga. 49, 9 L. R. A. 402; Murphy v. People, 120 111. 234; Reinken v. Fuehring, 130 Ind. 382, 15 L. R. A. 624; War- ren v. Henly, 31 Iowa, 31; Mines v. City of Leavenworth, 3 Kan. 186 ; Ottawa County Com'rs v. Nelson, 19 Kan. 234; City of New Orleans v. Elliott, 10 La, Ann. 59; In re City of New Orleans, 20 La. Ann. 497; State v. St. Louis County Dist. Ct., 61 Minn. 542; Daily v. Swope, 47 Miss. 367; Cain v. Davie County Com'rs, 86 N. C. 8; City of Raleigh v. Peace, 110 N. C. 32, 17 L. R. A. 330; Milliard v. City of Asheville. 118 N. C. 845; Bonsall v. Town of Lebanon, 19 Ohio, 418; Gest v. City of Cincinnati, 26 Ohio St. 275; King v. City of Portland, 2 Or. 146; Cook v. Port of Portland, 20 Or. 580, 13 L. R. A. 533; Huidekoper v. City of Meadville, 83 Pa. 156; Shoemaker v. City of Harrisburg, 122 Pa. 285; City of Chester v. Black, 132 Pa. 568, 6 L. R. A. 802; Beaumont v. Wilkes-Barre City, 142 Pa. 198; Bishop v. Tripp, 15 R. I. 466; Wash- Abb. Corp. 50. ington v. City of Nashville, 31 Tenn. (1 Swan) 177; Roundtree v. City of Galveston, 42 Tex. 612; Taylor v. Boyd, 63 Tex. 533; Richmond & A. R. Co. v. City of Lynchburg, 81 Va. 473; Violett v. City Council of Alex- andria, 92 Va. 561; Austin v. City of Seattle, 2 Wash. St. 667; City of Spokane Falls v. Browne, 3 Wash. St. 84; Lumsden v. Cross, 10 Wis. 282; Bond v. City of Kenosha, 17 Wis. 284. 232 city of Little Rock v. Katzen- stein, 52 Ark. 107, 12 S. W. 198; Bacon v. City of Savannah, 105 Ga. 62, 31 S. E. 127; Lowe v. White County Com'rs, 156 Ind. 163, 59 N. E. 466; In re City of New Orleans, 20 La. Ann. 497; Minnesota Lin- seed Oil Co. v. Palmer, 20 Minn. 468 (Gil. 424). Rogers v. City of St. Paul, 22 Minn. 494. In this case the court in its opinion by Berry, J., defined local improvements in the follow- ing language: "By common usage, especially as evidenced by the practice of courts and text writers, the term 'local im- provements' is employed as signi- fying improvements made in a par- ticular locality by which the real property adjoining or near such lo- cality is specially benefited. * * * The fact that the street to be im- proved is the most public thorough- fare in the city does not prevent 786 PUBLIC REVENUES. 333 In addition to this reason there also exists another which courts have given as of equal weight in sustaining the principle that property benefited should pay the cost of a local improvement. The cost of all public improvements is paid through the levy and collection of taxes of one species or another. In the absence of a limitation upon the tax rate, in case this principle did not apply, there would exist beyond question the inclination on the part of public officials to engage in the construction of extravagant un- necessary and costly improvements to be paid by general taxation of property more or less remote from the place where such im- provements are constructed. 233 If the principle of general taxa- tion were permitted to pay the cost of local improvements, it would result in a large increase of the burden of taxation on tax- payers. The personal payment of a tax by an individual tends to restrict him in an expenditure of public moneys and the fact that the construction of expensive and unnecessary improve- ments increases largely the tax which the public official personal- ly pays makes him conservative in such matters. 23 * 338. The exercise of the power to levy. Since the levy of special assessments is a species of taxation, it follows that the right to exercise the power by a public corpora- tion must be granted by the sovereign. The grant of power as in the case of ordinary taxation must be expressly given in clear and unmistakable terms and cannot be implied from a general grant of power to a corporation. 233 There cannot be implied, the improvement from being 'lo- sioners of assessment in apportion- caT; but the local character of ing the tax should take into con- the improvement depends upon the sideration all the property benefited special benefit which will result to although some may be exempt from the real property adjoining or near assessment. the locality in which the improve- 223 Municipality No. 2 v. Dunn, ment is to be made." 10 La. Ann. 57; Lockwood v. City In re Report of Com'rs, 49 N. J. of St. Louis, 24 Mo. 20. Law, 488, 10 Atl. 363. A change 234 Municipality No. 2 v. Dunn, 10 in ownership of land subject to La. Ann. 57. local assessment does not defeat the 235 O'Brien v. Wheelock, 95 Fed. right of a state to subsequently au- 883. Under the 111. Const, of 1870, thorize assessments and reassess- art. 9, 9, providing that "The gen- ments. Watrous v. City of Eliza- eral assembly may vest the corpor- beth, 40 N. J. Law, 278. Comrnis- ate authorities of cities, towns and 338 SPECIAL ASSESSMENTS. 787 from a general- welfare clause so often found in municipal char- ters, a power to levy special assessments for the making of locaJ villages with power to make local improvements by special assessment or by special taxation of contigu- ous property or otherwise," the leg- islature is prohibited from confer- ring power to make special assess- of "cities, towns and villages" and an act providing for the construc- tion and protection of ditches, tion and protection of ditches, drains, levees and other works and authorizing the cost to be assessed on property benefited by juries ap- pointed by county courts, is in vio- lation of the constitutional provi- sion, and assessments made in pur- suance to its terms are not en- forceable. Murphy v. City of Wilmington, 6 Houst. (Del.) 108; City Council of Augusta v. Murphey, 79 Ga. 101, 3 S. E. 326; McChesney v. Village of Hyde Park, 151 111. 634, 37 N. E. 858. Under constitution of 111. art. 4, 31, as amended in 1878, cities and villages have the power to con- struct and maintain, by means of special assessments, drains and pumping works for drainage pur- poses. City of Chicago v. Weber, 94 111. App. 561. The exercise of the power is discretionary with the municipal corporation and after proceedings have been commenced, but before they are completed, they can be abandoned. Lawrence v. People, 188 111. 407, 58 N. E. 991. The adoption, under authority of law, by a city, of that portion of the statutes relating to the making of municipal improve- ments, carries with it the adoption of all subsequent amendments to such statutes. Webster v. People, 98 111. 343; City of Fairfield v. Rat- cliff, 20 Iowa, 396; McNamara v. Estes, 22 Iowa, 246; Burnes v. City Council of Atchison, 2 Kan. 454; Hydes v. Joyes, 67 Ky. (4 Bush) 464, 96 Am. Dec. 311; Bradley v. McAtee, 70 Ky. (7 Bush) 667. Hood v. Town of Lebanon , 12 Ky. L. R. 813, 15 S. W. 516. The im- provements contemplated must be useful and reasonable in their char- acter. City of Annapolis v. Har- wood, 32 Md. 471; Steckert v. City of East Saginaw, 22 Mich. 104; Brady v. Hayward, 114 Mich. 326; City of Greenville v. Harvie, 79 Miss. 754, 31 So. 425. State v. Ramsey County Dist. Ct, SO Minn. 293, 83 N. W. 183. The improvement must, however, be actually made for whicn thi assess- ment, is levied. Hurford v. City of Omaha, 4 Neb. 336. In Dodge County v. Acorn, 61 Neb. 376, 85 N. W. 292, it was held, however, that under Const, art. 9, 6, the legislature could confer upon coun- ties the power to make local im- provements by special assessments upon property benefited although the language of the section cited provides that "the legislature may vest the corporate authorities of cities, towns and villages with pow- er to make local improvements by special assessmfent or by special taxation of property benefited." Watrous v. City of Elizabeth, 40 N. J. Law, 278; Long Branch Police, Sanitary & Imp. Commission v. Dobbins, 61 N. J. Law, 659, 40 Atl. 599; Moran v. City of Troy, 9 Hun (N. Y.) 540; Meech v. City of Buf- falo, 29 N. Y. 198; City of Wil- 788 PUBLIC REVENUES. 328 improvements. 236 Neither can it be implied from the ordinary grant of power to levy taxes, 237 nor from the power to make local or public improvements. 238 (a) The power a continuing one. The power, when once grant- ed, until repealed, is considered a continuing one, the right to ex- ercise which is not lost either by its non use, excessive use, or by the making of a specific local improvement. 239 The law recog- nizes the fact that municipal conditions are constantly changing and street improvements which may be adequate at one time may become inadequate at a later period because of an increase in population or radically changed business and economic condi- tions. In such a case, although the power may have been one exercised in a speciiic instance, this fact will not prevent the ex- mington v. Yopp, 71 N. C. 76; In re Morewood Ave., 159 Pa. 20; Lee v. Town of Mellette, 15 S. D. 586, 90 N. W. 855. Alford v. City of Dallas (Tex. Civ. App.) 35 S. W. 816. After a city has paid the cost of a local im- provement out of its general fund, it cannot then levy a special assess- ment upon property benefited. Storrie v. Woessner (Tex. Civ. App.) 47 S. W. 837; Hansen r. Hammer, 15 Wash. 315. The grant of the power by the legislature un- der constitutional authority to sub- ordinate governmental agents is not necessarily exclusive or does not deprive it of the right to grant the same power to other subordinate agencies. Pickering v. Ball, 19 Wash. 185; State v. City of Ash- land, 71 Wis. 502, 37 N. W. 809. 236Lott v. Ross, 38 Ala. 156; City of Savannah v. Hartridge, 8 Ga. 23; Town of New Iberia v. Weeks, 104 La. 489, 29 So. 252; Winston Com'rs v. Taylor, 99 N. C. 210; Green v. Ward, 82 Va. 324. ZST Hitchcock v. City of Galves- ton, 96 U. S. 341; First Presby- terian Church v. City of Ft. Wayne, 36 Ind. 338; Appeal of Powers, 29 Mich. 504. 238Bucknall v. Story, 36 Cal. 67; City of Augusta v. Dunbar, 50 Ga. 387; Wright v. City of Chicago, 20 111. 252; Gridley v. City of Bloom- ington, 88 111. 555; City of Fair- field v. Ratcliff, 20 Iowa, 396; City of Annapolis v. Harwood, 32 Md. 471. 239 Pardridge v. Village of Hyde Park, 131 111. 537; Spaulding v. Baxter, 25 Ind. App. 485, 58 N. E. 551. Where a city has made a local improvement and provided for its payment from the general fund, its power to provide for such pay- ment is exhausted and it cannot thereafter make an assessment upon property owners benefited by this improvement. Wilkins v. City of Detroit, 46 Mich. 120; Budge v. City of Grand Forks, 1 N. D. 309, 47 N. W. 390; 10 L. R. A. 165. Where one assessment has been made upon property, its right is lost to again assess such property for its portion of the cost of making the same improvement. Alcorn v. City of Philadelphia, 112 Pa. 494. 338b SPECIAL ASSESSMENTS. 789 ercise again by the municipality of the power to make a local im- provement to meet the changed condition. 240 This rule, however, does not usually apply to the reconstruction of a local improve- ment before it has become worn out or rendered unsuitable for use by changed condition. 241 (b) Cannot be delegated. When granted the power by the sovereign, a subordinate agent cannot delegate this right t cial results last in order to consti- provement' given by lexicographers, tute an improvement? It certainly It has been defined as 'that by will not be claimed that the work which the value of anything is in- must be eternal in duration, or im- creased, its excellence enhanced, or perishable in character. We are the like;' or 'an amelioration of unable to see any difference in prin- the condition of property affected ciple between the work of street by the expenditure of labor or sprinkling, the results of which, un- money, for the purpose of render- less repeated, last but a day, and ing it useful for other purposes the construction of a block pave- than those for which it was origin- ment or wooden sidewalk, which ally used, or more useful for the wears out or decays, and has to be same purposes.' " rebuilt, every few years. When a In the recent case of Maydwell pavement or sidewalk has worn v. City of Louisville, 25 Ky. L. R. 340b SPECIAL ASSESSMENTS. 797 1062, 76 S. W. 1091, it was held that the levying of a tax for the sprink- ling of city streets was not uncon- stitutional as being levied for a purpose not public in its charac- ter. The court say: "It cannot be doubted at this day, that what- ever is necessary for the preserva- tion of the public health and safety is a public purpose, within the meaning of section 171 of the Con- stitution. For the purpose of fur- nishing the citizens with pure wa- ter, waterworks may be established, and public wells dug and main- tained. That the public highways may, without peril, be traveled at night, they may be lighted at the public expense. That the people may have convenient and whole- some places for resort, public parks may be established and kept. For the education of the young, public schools are conducted. For the sup- port of the indigent aged, alms- houses are provided. For the refor- mation of vicious young, reforma- tories are maintained. For the re- lief of the sick, hospitals are pro- vided. For the protection of the public health, nuisances are abated, streets and sewers are flushed and cleaned. As a protection against conflagration, fire departments are established; and as a safeguard for life and property, police depart- ments are organized. It cannot be successfully denied that the dust upon the streets of large cities is a fruitful source of disease, as well as of annoyance, to the citizens. The same principle which authorizes the streets to be cleaned for the purpose of preventing noisome odors and epidemics of disease authorizes them to be sprinkled." But see City of Chicago v. Blair, 149 111. 310, 24 L. R. A. 412, where it is held that street sprinkling under Illinois Statutes is not a local improvement the cost of which can be charged against the property benefited. See, also, New York Life Ins. Co. v. Prest, 71 Fed. 815, where the court, after citing with approval the Illi- nois case above cited and quoting from its opinion says: "Under such ordinances, streets are sprinkled in front of vacant lots on which are neither house nor any 'living crea- ture.' It could hardly be said, with reason, that running a sprinkling cart now and then in front of such a lot adds to its market value. Nor is there, in such occasional 'laying of the dust,' any semblance of per- manency. It is as evanescent as the early and the later dew, and, in my judgment, it is no more within the power of a municipality thus to cre- ate liens on the citizen's property, than to hire a 'rain maker' to vex the skies for refreshing showers, and charge the lots adjacent to the raindrops with the cost thereof. As the sprinkling of the public high- ways of a city like the cleaning thereof, contributes much to the comfort and enjoyment of the pub- lic, its cost should be made a gen- eral, and not a special burden." Kansas City v. O'Connor, 82 Mo. App. 655. A city cannot impose a special assessment on abutting property for sprinkling a street. The court said in part that the ben- efit received was too "ephemeral, and intangible to be denominated an improvement to the property" or to constitute a local improvement. 26* City of Bridgeport v. Giddings, 43 Conn. 304; Butz v. Kerr, 123 111. 659, 14 N. E. 671, following People v. La Salle County Sup'rs, 111 I1L 527; Shannon v. Village of Hins- dale, 180 111. 202; Yeakel v. City of 798 PUBLIC REVENUES. 340b of hydrants, construction of viaducts, 266 local sewers, 267 ditches or drains,- 68 or the running of sewer pipes, 269 the construction or re- Lafayette, 48 Ind. 116; Cook v. Slo- cum, 27 Minn. 509. Widening and straightening a street is a local im- provement within art. 9, 1, Minne- sota constitution. State v. Ensign, 54 Minn. 372. A bridge constructed for the purpose of avoiding a grade crossing over railroad tracks is a local improve- ment the cost of which can be de- frayed by special assessments upon property benefited. See, also, Kelly v. City of Minneapolis, 57 Minn. 294, 26 L. R. A. 92, as holding that an agreement between the city and rail- road company in regard to the con- struction of viaducts to avoid grade crossings does not relieve the own- ers of property benefited by a change of street grade from their liability for special assessments based upon benefits received by the construc- tion of the viaduct. Sperry v. Flygare, 80 Minn. 325, 83 N. W. 177, 49 L. R. A. 757. A rural highway is not a local im- provement and local assessments cannot, therefore, be imposed on abutting property to pay for its con- struction or improvement. Morse v. City of West-Port, 110 Mo. 502, 19 S. W. 831; Heath v. Mc- Crea, 20 Wash. 342, 55 Pac. 432; Tifft v. City of Buffalo, 82 N. Y. 204; Barker v. State, 18 Ohio, 514. Under a special charter provision, a tax for the improvement of a street may be levied upon all the lands embraced within the corporate lim- its. Berlin Iron-Bridge Co. v. City of San Antonio (Tex. Civ. App.) 50 S. W. 408. A bridge spanning a river where it crosses a city street is regarded as a street improve- ment. 265 Palmer v. City of Danville, 154 111. 156; Hughes v. City of Momence, 163 111. 535; Hewes v. Glos, 170 111. 436; Landon v. City of Syracuse, 163 N. Y. 562, 57 N. E. 1114. Where a water pipe or connection is put in by order of the common council without authority or request of the owners, it will not be considered, however, as an improvement but one which must be paid for from the general funds, following Alvord v. City of Syracuse, 163 N. Y. 158; City of Philadelphia v. Union Burial Ground Soc., 178 Pa. 533; Smith v. City of Seattle, 25 Wash. 300, 65 Pac. 612. 266 Louisville & N. R. Co. v. City of East St. Louis, 134 111. 656, 25 N. E. 962; City of Bloomington v. Chi- cago & A. R. Co., 134 111. 451, 26 N. E. 366. A railroad bridge across a street cannot be paid for by spe- cial taxation. 267 Appeal of Hunter, 71 Conn. 189; English v. City of Wilmington, 2 Marv. (Del.) 63, 37 Atl. 158; Mc- Chesney v. Village of Hyde Park (111.) 28 N. E. 1102; Payne v. Vil- lage of South Springfield, 161 111. 285, 44 N. E. 105; Mason v. City of Chicago, 178 111. 499; Hall v. Street Com'rs of Boston, 177 Mass. 434, 59 N. E. 68; Peck v. City of Grand Rapids, 125 Mich. 416, 84 N. W. 614. Under a charter provision au- thorizing proceedings for grading and graveling a street, the city can- not construct a sewer. Heman v. Schulte, 166 Mo. 409, 66 S. W. 163. The question of benefits received cannot be raised in a collateral at- tack. Schlapfer v. Town of Union, 53 N. J. Law, 67, 20 Atl. 894; De Witt v. City of Elizabeth, 56 N. J. 340b SPECIAL, ASSESSMENTS. 799 pair of sidewalks, 270 the establishment of park ways, public grounds or parks, 271 the construction of safe harbors, landings, Law, 119, 27 Atl. 801; Post v. City of Passaic, 56 N. J. Law, 421, 28 Atl. 553; People v. City of Buffalo, 54 App. Div. 629, 66 N. Y. Supp. 1139, following 33 App. Div. 654, 57 N. Y. Supp. 1144; People v. Village of Yonkers, 39 Barb. (N. Y.) 266; Jones v. Holzapfel, 11 Okl. 405, 68 Pac. 511; Woodhouse v. City of Bur- lington, 47 Vt. 300. 268 Peake v. City of New Orleans, 139 U. S. 342, 377; City of San Diego v. Linda Vista Irr. Dist, 108 Cal. 189, 35 L. R. A. 33; McChesney v. Village of Hyde Park, 151 111. 634, 37 N. E. 858; Hatch v. Pottawatta- mie Co., 43 Iowa, 442; Davidson v. City of New Orleans, 34 La. Ann. 170. Where it is shown that the property was actually injured by the alleged drainage, the special assess- ment cannot be collected. Davies v. City of New Orleans, 40 La. Ann. 806; Beals v. Inhabitants of Brook- line, 174 Mass. 1, 54 N. E. 339; Gray v. Board of Aldermen of Boston, 139 Mass. 328; People v. Saginaw Coun- ty Sup'rs, 26 Mich. 22. The court here held that the power to tax is plenary, but taxation implies public interest, and in cases involving as- sessments it also implies proceedings in pais in some of which the tax- payers have a right to take part and be heard; the particular drainage legislation, viz., act of March 23, 1871, was held void because of a dis- regard of such principles. State v. Henry, 28 Wash. 38, 68 Pac. 368. *Cone v. City of Hartford, 28 Conn. 363; Hungerford v. City of Hartford, 39 Conn. 279; McChesney v. Village of Hyde Park (111.) 28 N. E. 1102. 270 White v. People, 94 111. 604; Peopie v. Yancey, 167 111. 255; Vil- lage of Western Springs v. Hill, 177 111. 634; People v. Field, 197 111. 568. A grass plot on each side of a walk cannot be sodded and maintain- ed by special assessments on abut- ting property under the legislative authority to construct sidewalks. City of Des Moines v. Stephenson, 19 Iowa, 507; Sloan v. Beebe, 24 Kan. 343; Dickinson v. City Coun- cil of Worcester, 138 Mass. 555. The expense of grading for a sidewalk cannot be charged against abutters under authority for the levy of an assessment to pay the cost of "pav- ing a sidewalk." Kemper v. King, 11 Mo. App. 116; Inhabitants of Butler v. Robinson, 75 Mo. 192; Flint v. Webb, 25 Minn. 93; Grant v. Bartholomew, 58 Neb. 839; Sigler v. Fuller, 34 N. J. Law, 227; Wright v. Briggs, 2 Hill (N. Y.) 77; Pomfrey v. Village of Sara- toga Springs, 104 N. Y. 459; Folms- bee v. City of Amsterdam, 142 N. Y. 118. If items are included in a local assessment not assessable on the property, it will render void the en- tire assessment. In Mauldin v. City Council of Greenville, 53 S. C. 285, 43 L. R. A. 101, it is held that special assess- ments cannot be levied for the im- provement of city sidewalks under Const, art. 10, 5, which requires all property to be taxed uniformly and further requiring that all taxa- tion by municipal corporations shall be for municipal purposes. Lufkin v. City of Galveston, 58 Tex. 545. 2Ti Wilson v. Lambert, 168 U. S. 611; Matthews v. Kimball, 70 Ark. 451, 66 S. W. 651, 69 S. W. 547; Heller v. Garden City, 58 Kan. 263, 800 PUBLIC REVENUES. 6 340b wharves and docks, 272 have each been considered local improve- ments of such a character that the cost of their construction or making should be assessed against the property benefited in proportion to the benefits received. The general rule in regard to the construction of all the improvements noted above in the absence of special charter or statutory provisions is that the origi- nal cost of such improvement must be borne by local assessments levied upon property benefited; after such original construction the cost of making the usual and necessary repairs must, however, be paid from the general corporate funds or revenues. 273 The power to construct local and public improvements outside of the corporate limits in the absence of an express legislative grant is 48 Pac. 841. A city may levy special assessments for the planting and maintenance of shade trees on its public streets. West Chicago Park Com'rs v. Farber, 171 111. 146; Chi- cago Title & Trust Co. v. Town of Lake View, 187 111. 622; Davies v. City of New Orleans, 40 La. Ann. 806; Foster v. Boston Park Com'rs, 131 Mass. 225; Id., 133 Mass. 321; State v. Brill, 58 Minn. 152; State v. St. Louis County Dist. Ct., 66 Minn. 161, 68 N. W. 860; State v. Ramsey County Dist. Ct, 75 Minn. 292, 77 N. W. 968; Kansas City v. Ward, 134 Mo. 172, 35 S. W. 600; Kansas City v. Bacon, 147 Mo. 259, 48 S. W. 860; In re Beechwood Ave., 194 Pa. 86. 272 Webb v. City of Demopolis, 95 Ala. 116, 21 L. R. A. 62; City of San Pedro v. Southern Pac. R. Co., 101 Cal. 333; City of Chicago v. Rum- sey, 87 111. 348 (river tunnel) ; Li- gare v. City of Chicago, 139 111. 46; Snyder v. Town of Rockport, 6 Ind. 237; Shepherd v. Municipality No. 3, 6 Rob. (La.) 349; Town of St. Mar- tinsville v. The Mary Lewis, 32 La. Ann. 1293; Com. v. Tucker, 19 Mass. (2 Pick.) 44; City of Galveston v. Menard, 23 Tex. 349; Backus v. City of Detroit, 49 Mich. 110; City of Hannibal v. Winchell. 54 Mo. 172: Siarshall v. Guion, 11 N. Y. (1 Kern.) 461; Miller v. City of Mil- waukee, 14 Wis. b42. Breakwater. But the following authorities deny the power in respect to the particu- lar improvement suggested: Town of Newport v. Batesville & B. R. Co., 58 Ark. 270 (levee) ; Spengler v. Trowbridge, 62 Miss. 46 (harbor). 273 City of New Haven v. Whit- ney, 36 Conn. 373. The macadamiz- ing of a street held not a public im- provement but a "maintaining" of the street to be paid for from the general fund. See McChesney v. Village of Hyde Park, 151 111. 634; Crane v. West Chicago Park Com'rs, 153 111. 348, 26 L. R. A. 311; Bullitt v. Selvage, 20 Ky. L. R. 599, 47 S. W. 255; Holzhauer v. City of New- port, 94 Ky. 396; Robertson v. City of Omaha, 55 Neb. 718, 76 N. W. 442, 44 L. R. A. 534; Wilson v. Inhabi- tants of Trenton, 61 N. J. Law, 599, 40 Atl. 575, 44 L. R. A. 540; In re Smith, 99 N. Y. 424. Increasing the width of a sidewalk is a "repave- ment" within the meaning of that term as found in laws relating to sidewalks in New York City. Bor- ough of Steelton v. Booser, 162 Pa. 630. 341 SPECIAL ASSESSMENTS. 801 universally denied. The rule applies to the opening of a street, the repairing of a highway, the grading of an avenue, or the con- struction of a bridge. 27 * 341. Extent of exercise. The power to construct a local improvement, when it exists, can be exercised to any extent within its full limit as granted; the extent being dependent upon the discretion of the officials to whom is delegated this duty. 275 One-half the lateral width of a street may therefore be paved where the authority exists to make such improvement, the cost to be paid by the front foot or run- ning foot assessment. 276 Improvements to be properly chargea- ble against the property benefited must be in or upon a highway legally laid out or dedicated. 277 274 Municipality No. 1 v. Young, 5 La. Ann. 362; City of Baltimore v. Porter, 18 Md. 284; City of Cam- bridge v. Railroad Com'rs, 153 Mass. 161. But see the following cases where either an express grant exist- ed or the power was held as implied from peculiar conditions or circum- stances: Cochran v. Village of Park Ridge, 138 111. 295, following Shreve v. Town of Cicero, 129 111. 226; Gallon v. City of Jacksonville, 147 111. 113; Dively v. City of Cedar Falls, 27 Iowa, 227; City of Coldwa- ter v. Tucker, 36 Mich. 474; In re East Syracuse, 20 Abb. N. C. (N. Y.) 131. 275 Dickerson v. Franklin, 112 Ind. 178. The use to which property is put is immaterial so long as the land is of such a character as may make it susceptible to the benefit to be derived from the construction of a local improvement. Hall v. Street Com'rs of Boston, 177 Mass. 434, 59 N. E. 68. The power to levy special assessments can be exercised to pay the cost of a local improvement already constructed. Mayall v. City of St. Paul, 30 Minn. 294, followed in Armstrong v. City of St. Paul, 30 Minn. 299, which holds that Minnesota Sp. Laws 1874, re- lating to local improvements and special assessments do not authorize the making of two separate and distinct public improvements as an entirety; the proceedings, authori- zation and construction of which must be considered and made sep- arately. 276 Indianapolis & V. R. Co. v. Cap- itol Pav. & Const. Co., 24 Ind. App. 114, 54 N. E. 1076. 277 City of Meriden v. Camp, 46 Conn. 284; Holliday v. City of At- lanta, 96 Ga. 377; Village of Hyde Park v. Borden, 94 111. 26; Holmes v. Village of Hyde Park, 121 111. 128; Bodley v. Finley's Ex'r, 23 Ky. L. R. 851, 64 S. W. 439; De Grilleau v. Frawley, 48 La. Ann. 184. A pri- vate way does not fall under the op- eration of act No. 20 of 1882, 37, relative to paving. Pierce v. Franklin County Com'rs, 63 Me. 252; City of Baltimore v. Hook, 62 Md. 371; Masonic Bldg. Abb. Corp. 51. 802 PUBLIC REVENUES. 341 Discretionary power of municipal authorities to make improve- ments. Unless some statutory restriction exists where the power to make local or public improvements has been granted to a sub- ordinate public agency, such power is deemed of a discretionary character and the action of the municipal authorities in its rea- sonable exercise or non-exercise is not subject to control by the courts or open to judicial review. 278 Courts will not, therefore, ordinarily interfere in the ordering of a local improvement on the ground that it is unnecessary or unreasonable or that officers are not acting in good faith. 279 This official discretion may include not only the time of making the improvement but also its extent and nature, 28 * and the material for construction. 281 Ass'n v. Brownell, 164 Mass. 306; Detroit, M & T. R, Co. v. City of De- troit, 49 Mich. 47; Hennessy v. City of St. Paul, 44 Minn. 306; State v. Dean, 23 N. J. Law (3 Zab.) 335; Copcutt v. City of Yonkers, 59 Hun, 212, 13 N. Y. Supp. 452, judgment affirmed 128 N. Y. 669; Heiple v. City of East Portland, 13 Or. 97; Coxe v. City of Philadelphia, 47 Pa. 9; Reed v. City of Erie, 79 Pa. 346; City of Philadelphia v. Ball, 147 Pa. 243; City of Philadelphia v. Thomas' Heirs, 152 Pa. 494; Bishop v. Tripp, 15 R. I. 466. But see the following cases either denying the rule or hold- ing that where the municipality may acquire in the future the public way, the invalidity of a local assessment cannot be raised by the property owner. Hunerberg v. Village of Hyde Park, 130 111. i56; Leman v. City of Lake View, 131 111. 388; Coch- ran v. Village of Park Ridge, 138 111. 295; May wood Co. v. Village of May- wood, 140 111. 216; Donovan v. Coles, 33 Mo. App. 161; Parker v. City of New Brunswick, 30 N. J. Law, 395; Jersey City v. Howeth, 30 N. J. Law, 521; People v. Common Council of Rochester, 5 Lans. (N. Y.) 142; In re McGown, 18 Hun (N. Y.) 434; Richards v. City of Cincinnati, 31 Ohio St. 506; Darlington v. Com., 41 Pa. 63. 278 Harney v. Benson, 113 Cal. 314; English v. City of Danville, 150 111. 92; Church v. People, 179 111. 205; Shannon v. Village of Hinsdale, 180 111. 202; Skinker v. Heman, 64 Mo. App. 441; Estes v. Owen, 90 Mo. 113; Barber Asphalt Pav. Co. v. French, 158 Mo. 534, 54 L. R. A. 492; Taintor v. Town of Morristown, 33 N. J. Law, 57. 279 Bacon v. City of Savannah, 105 Ga. 62; Chicago N. W. R. Co. v. Town of Cicero, 154 111. 656; City of Chicago v. Nichols, 177 111. 97; City of Elkhart v. Wickwire, 121 Ind. 331; In re City of Cedar Rapids, 85 Iowa, 39; Miller v. Webster City, 94 Iowa, 162; Carr v. Dooley, 122 Mass. 255; City of Detroit v. Beecher, 75 Mich. 454, 4 L. R. A. 813; Morse v. City of Westport, 110 Mo. 502; Id., 136 Mo. 276; Paulson v. City of Portland, 16 Or. 450, 1 L. R. A. 673; Oil City v. Oil City Boiler Works, 152 Pa. 348. 28o-Lightner v. City of Peoria, 150 111. 80; Murphy v. City of Peoria, 119 111. 509; Brown v. Barstow, 87 Iowa, 344; Boston & M. R. Co. v. City of Lawrence, 84 Mass. (2 Allen) 107; 342 SPECIAL ASSESSMENTS. 803 342. Discretionary power with reference to locating limits of taxing district. Where statutory or constitutional authority exists for the making of local assessments, a discretion is usually vested in the municipal authorities to divide their territory into such taxation districts for the construction of local improvements as seem ad- visable 282 and the exercise of a sound discretion by them will not Dunker v. Stiefel, 57 Mo. App. 379; In re Protestant Episcopal Public School, 40 How. Pr. (N. Y.) 198; Id., 47 N. Y. 556; State v. City of Por- tage, 12 Wis. 562. 281 Cram v. City of Chicago, 138 111. 506; Cunningham v. City of Pe- oria, 157 111. 499; Shannon v. Village of Hinsdale, 180 111. 202; Burlington & M. R. R. Co. v. Spearman, 12 Iowa, 112; Gunning Gravel & Pav. Co. v. City of New Orleans, 45 La. Ann. 911; City of Grand Rapids v. Board of Public Works, 87 Mich. 113; Id., 99 Mich. 392; Shimmons v. City of Saginaw, 104 Mich. 511; City of Schenectady v. Union College, 144 N. Y. 241, 26 L. R. A. 614; City of Philadelphia v. Evans, 139 Pa. 483; Benson v. Village of Waukesha, 74 Wis. 31. See, also, in addition to the cases cited in the last four pre- ceding notes, the following constru- ing generally the discretionary pow- er of municipal authorities in the making of local improvements and the levying of special taxes for the payment of their cost of construc- tion. In re Market St., 49 Cal. 546; City of Meriden v. Camp, 46 Conn. 284; Weld v. People, 149 111. 257; McChesney v. City of Chicago, 152 111. 543; City of Baltimore v. Scharf, 54 Md. 499; Slocum v. Selectmen of Brookline, 163 Mass. 23; Gibson v. Kayser's Ex'rs, 16 Mo. App. 404; Ritterstoamp v. Stifel, 59 Mo. App. 510; State v. Corrigan Consol. St. R. Co., 85 Mo. 263; Jelliff v. City of Newark, 48 N. J. Law, 101; In re Cullen, 119 N. Y. 628; Appeal of Harper, 109 Pa. 9; Alford v. Dallis (Tex. Civ. App.) 35 S. W. 816. 282 Goodrich v. City of Detroit, 184 U. S. 432; City of Little Rock v. Katzenstein, 52 Ark. 107, 12 S. W. 198; Matthews v. Kimball, 70 Ark. 451, 66 S. W. 651, 69 S. W. 547; Bradford v. City of Pontiac, 165 111. 612; Adams v. City of Shelby ville, 154 Ind. 467, 49 L. R. A. 797; City of Atchison v. Price, 45 Kan. 296, 25 Pac. 605; Louisville Steam Forge Co. v. Anderson, 22 Ky. L. R. 397, 57 S. W. 617; Hoyt v. City of East Saginaw, 19 Mich. 39; Trowbridge v. City of Detroit, 99 Mich. 443, 58 N. W. 368. A municipality may en- large an assessment district when it deems that the property thus includ- ed is benefited by the local improve- ment. Brown v. City of Saginaw, 107 Mich. 643, 65 N. W. 601; Mitchell v. City of Negaunee, 113 Mich. 359, 71 N. W. 646. It is within the discre- tion of the legislature to establish city limits and taxing districts and to authorize the levy of assessments for the purpose of establishing a public electric light plant. City of Kala- mazoo v. Francoise, 115 Mich. 554, 73 N. W. 801; Deerfield Tp. v. Har- per, 115 Mich. 678, 74 N. W. 207; Grand Rapids School Furniture Co. v. City of Grand Rapids, 92 Mich. 804 PUBLIC REVENUES. be interfered with by the courts. 283 That the legislature of a state under constitutional authority may exercise the same discretion and power is axiomatic. 284 By whatever authority the taxing district is established, how- ever, it must be accurately denned. This is necessary in order to determine what property is subject to the assessment and how such assessments are to be apportioned or divided according to the benefits. 285 On the establishment of such a local assessment 564; Uhrig v. City of St. Louis, 44 Mo. 458; Shimmons v. City of Sagi- naw, 104 Mich. 511; City of Kala- mazoo v. Francoise, 115 Mich. 554; City of Kansas v. Baird, 98 Mo. 215. It does not necessarily follow, how- ever, that all property within such district will be benefited and there- fore subject to assessment. Where the "benefits received" rule obtains, property not benefited although with- in the assessment district will not be subject to taxation. City of St. Louis v. Brown, 155 Mo. 545; Jelliff v. City of Newark, 49 N. J. Law, 239, 12 Atl. 770; Peo- ple v. City of Buffalo, 30 App. Div. 654, 57 N. Y. Supp. 1144, reversing 52 N. Y. Supp. 689; Gest v. City of Cincinnati, 26 Ohio St. 275; Wood- house v. City of Burlington, 47 Vt. 301. 283 Matthews v. Kimball, 70 Ark. 451, 66 S. W. 651, 69 S. W. 547. When a city council establishes a local improvement district, the pre- sumption follows that the property therein will be benefited by the im- provement for which the district is created. This presumption can be rebutted by evidence to the contrary. Primm v. City of Belleville, 59 111. 142. Where the municipal authori- ties in the exercise of an assumed legislative authority exempt proper- ty from taxation or divide the city into districts in such a manner as to violate constitutional principles of equality and uniformity in the levy of special assessments, their action will be set aside as unconstitutional. Preston v. Rudd, 84 Ky. 150; Hanscom v. City of Omaha, 11 Neb. 37. In levying assessments upon property within such a district, the authorities cannot ignore arbitrarily the question of special benefits to specific property. Kountze v. City of Omaha, 63 Neb. 52, 88 N. W. 117; Butler v. Town of Montclair, 67 N. J. Law, 426, 51 Atl. 494. An entire municipality may be treated as one taxing district and the cost of a sewerage system assessed on all lands within its limits. as* Davidson v. City of New Or- leans, 96 U. S. 97; Spencer v. Mer- chant, 125 U. S. 345; Bauman v. Ross, 167 U. S. 548; Parsons v. Dist. of Columbia, 170 U. S. 45; Williams v. Eggleston, 170 U. S. 304, 311. The court said in this case: "Neither can it be stated that if the state constitution does not prohibit, the legislature, speaking generally, may create a new taxing district de- termining what territory shall be- long to such district and what prop- erty shall be considered as benefited by a proposed improvement." Web- ster v. City of Fargo, 181 U. S. 394; Livingston v. City of New York, 8 Wend. (N. Y.) 85. 285 Montgomery Ave. Case, 54 Cal. g 343 SPECIAL ASSESSMENTS. 805 or taxing district only property within its limits will be subject to the levy of local assessments for paying the cost of its local improvements. Its taxing jurisdiction, in other words, does not extend beyond its limits and applies conversely only to property within its limits for improvements made within the district. 280 343. Property subject to local assessments. The difference in the theories and principles sustaining the imposition of local assessments distinguished from taxation, as the word is commonly understood, leads to a radical difference 580; New Brunswick Rubber Co. v. New Brunswick St. Com'rs, 38 N. J. Law, 190. "It is not sufficient that the legislative act merely declares that the cost, or a part of the cost, of the improvement, shall" be as- sessed upon the lots drained by the sewers to be built. It must as well establish some rule, some definite scheme, within constitutional limits for the apportionment of the tax up- on the lands on which such special burthen is imposed. An act of the legislature directing a tax for a local improvement to be imposed upon particular lands, to be legal or ef- fectual, must consist of something more than a mere authorization to assess a sum of money, the cost of a local improvement, upon the desig- nated property the act must de- termine the mode of distributing the burthen; the property out of which the tax is to be made must be desig- nated, and some certain standard of assessments established; it cannot properly be left by the legislature to the discretion of others to fix the method." 286 Minnesota & M. Land & Imp. Co. v. City of Billings (C. C. A.) Ill Fed. 972. Such district may include the entire city. City of Ottawa v. Macy, 20 111. 413; McChesney v. Vil- lage of Hyde Park (111.) 28 N. B. 1102; Title Guarantee & Trust Co. r. City of Chicago, 162 111. 505. Such district must have been created be- fore a special assessment for the con- struction of a sewer will be held valid. Willard v. Albertson, 23 Ind. App. 164; Adams v. City of Shelbyville, 154 Ind. 467, 49 L. R. A. 797; Chica- go, M. & St. P. R. Co. v. Phillips, 111 Iowa, 377, 82 N. W. 787; Pear- son v. Zable, 78 Ky. 170; City of In- dependence v. Gates, 110 Mo. 374, 19 S. W. 728; In re City of Amsterdam, 55 Hun, 270, 8 N. Y. Supp. 234; Le Roy v. City of New York, 20 Johns. (N. Y.) 430. Matter of Ward, 52 N. Y. 395. Where, however, there is a provision restricting assessments to "the ad- joining property" by which it is meant contiguous to the local im- provement, not that merely adja- cent; the municipal authorities have no power to create an assessment district which would make property not contiguous subject to a local as- sessment. Farrington v. City of Mt Vernon, 166 N. Y. 233; Spring Gar- den v. Wistar, 18 Pa. 195; Pacific Sheet Metal Works v. Roeder, 26 Wash. 183, 66 Pac. 428. SUb PUBLIC REVENUES. 343 in determining the validity of local assessments levied upon specific property. The basis of a local assessment is a benetit or advantage peculiarly received by it from the making of the local improvement and in amount supposed to be equal to the local assessment levied upon it for the purpose of paying in part the cost of such improvement. Property which cannot by reason of its location or use be benefited to any extent through the making of a local improvement cannot be legally assessed for the making of such improvement. 287 The ques- tion of the exemption of property from local assessment may arise in connection with the construction of a statutory or con- tract exemption, its use, the character or ownership of property, or prior taxation for or construction of the same improvement either by the municipality or owner. 288 287 City of San Diego v. Linda Vis- ta Irr. Dist, 108 Cal. 189, 35 L. R. A. 33. A special assessment may be levied upon Pueblo lands of a city susceptible to cultivation when irri- gated, for the purpose of construct- ing an irrigation ditch under act of March 7th, 1887. City of McKeesport v. Soles, 178 Pa. 363. The question, however, is determined by the facts in each par- ticular case if there is a substantial advantage or benefit derived by prop- erty suburban in its character it can still be assessed for local improve- ments made on streets adjoining or fronting it. 288 Park Ecclesiastical Soc. v. City of Hartford, 47 Conn. 89. Where lands will receive, however, a benefit from the construction of the new improvement, they can be assessed for their portion according to the method authorized by the statute. Sargent v. City of New Haven, 62 Conn. 510; West Chicago Park Com'rs v. Metropolitan West Side El. R. Co., 182 111. 246, 55 N. E. 344; Sweet v. West Chicago Park Com'rs, 177 111. 492; Coburn v. Bossert, 13 ind. App. 359, 40 N. E. 281, Holloran V. Morman, 27 Ind. App. 309, 59 N. E. 869. City of Burlington v. Palmer, 67 Iowa, 681. The cost of relaying pave- ment necessitated by the construc- tion of a sewer must be charged to the cost of the sewer, not upon abut- ting property. Miller v. Hagemann, 114 Iowa, 195, 86 N. W. 281. An exemption grant- ed though it be valid, is conferred as a matter of public policy and it cannot become a contract right which the legislature is precluded from impairing by subsequent legis- lation. Ottumwa Brick & Const. Co. v. Ainley, 109 Iowa, 386. A city may pay the cost of a local improvement in front of property practically val- ueless from its general fund and by so doing not affect the validity of assessments abutting against other property for their proportionate cost of the work. Gleason v. Barnett, 22 Ky. L. R. 1660, 61 S. W. 20; City of Louisville v. Tyler, 23 Ky. L. R. 827, 64 S. W. 415; Sears v. Boston St. Com'rs, 173 343a SPECIAL ASSESSMENTS. 807 (a) Statutory exemptions. The maintenance of private schools, seminaries, colleges, or other institutions of learning; hospitals for the care of the sick and institutions for the care and train- ing of the unfortunate; churches and buildings used by re- ligious bodies for the maintenance of their institutional work; is considered a benefit and advantage to society at large and, therefore, to some extent, an aid to government. For this reason it is usual by statutory or constitutional provision to ex- empt the property of such institutions or organizations from public or general taxation. Such exemptions are usually for a limited period, are construed strictly and, it is well estab- lished, do not relieve these organizations or such property from the payment of special assessments. Their property receives from the construction of local improvements an equal advantage and benefit with other property similarly situated with respect to the improvement and it is but just that it bear its share of the cost. 289 Mass. 350, 53 N. E. 876; Deerfield Tp. v. Harper, 115 Mich. 678, 74 N. W. 207; City of St. Joseph v. Owen, 110 Mo. 445, 19 S. W. 713; Davis v. City of Newark, 54 N. J. Law, 595; In re Welsh, 30 Hun (N. Y.) 372; In re East Eighteenth St., 142 N. Y. 645, 37 N. E. 568, affirming 75 Hun, 603, 27 N. Y. Supp. 591; Archer v. City of Mt. Vernon, 63 App. Div. 286, 71 N. Y. Supp. 571; Wewell v. City of Cincinnati, 45 Ohio St. 407, 15 N. E. 196. Ford v. City of Toledo, 64 Ohio St. 92, 59 N. E. 779, construing Ohio Rev. St. 2380, exempting property from assessment for the construction of a sewer when not in need of local drainage. City of Harrisburg v. Funk, 200 Pa. 348, 49 Atl. 992. The ordinary repairs made to a highway will not be considered an original improve- ment so as to exempt abutting prop- erty from liability for paving. City of Philadelphia v. Gowen, 202 Pa. 453, 52 Atl. 3; Wistar v. City of Philadelphia, 111 Pa. 604. The rule applies where the owner has made an improvement at his own expense of the proper materials and in the proper manner as required by ordi- nance of the city or the rules of its engineering department. City of Philadelphia v. Odd Fel- lows' Hall Ass'n, 168 Pa. 105. The construction of a private sewer will not relieve property from assessment for a public sewer subsequently built although the latter was used by the property owner. Leake v. City of Philadelphia, 171 Pa. 125; City of Erie v. Griswold, 184 Pa. 435; City of Philadelphia v. Yewdall, 190 Pa, 412; In re Lincoln Ave., 193 Pa. 435; City of Scranton v. Sturges, 202 Pa. 182; Boyden v. Village of Brattlebo- ro, 65 Vt. 504. Property cannot be assessed twice to pay for the same improvement. 289 See cases cited under the next following note. See, also. District of Columbia v. Sisters of Visitation of 808 PUBLIC REVENUES. 343a A state or municipal organization may also, by law, exempt from taxation manufacturing industries or other private enter- Washington, 15 App. D. C. 300. The exemption, however, may be absolute and the property relieved from the payment of local assessments as well as general taxes; such exemption, however, must be clearly and unmis- takably granted. An act exempting certain property from "any and all taxes or assessments national or mu- nicipal or county" held to confer such exemption. 30 Cent. Law J. 282, article by D. H. Pingrey; City of Atlanta v. First Presbyterian Church, 86 Ga. 730, 12 L. R. A. 852, overruling Trustees of First M. E. Church v. City of Atlanta, 76 Ga, 181; City of Ottawa v. Free Church, 20 111. 423; McLean County v. City of Bloomington, 106 111. 209; University of Chicago v. People, 118 111. 565; Adams County v. City of Quincy, 130 111. 566; Thorn v. West Chicago Park Com'rs, 130 111. 594; First Presbyterian Church v. City of Ft. Wayne, 36 Ind. 338. Church property may be exempted from cer- tain assessments, however, because there is no means to provide for as- certaining "its value." Todd v. City of Atchison, 9 Kan. App. 251; Zable v. Orphans' Home, 92 Ky. 89, 13 L. R. A. 668; Kilgus v. Trustees of Orphanage of Good Shepherd, 94 Ky. 439; Boston Asylum & Farm School v. Boston St. Com'rs, 180 Mass. 485, 62 N. E. 961. A charter provision that a cor- poration may hold real estate and personal property free from taxation does not exempt its property from a liability for special assessments for street improvements. Harvard College v. City of Bos- ton, 104 Mass. 470; Washburn Me- morial Orphan Asylum v. State, 73 Minn. 343, 76 N. W. 204; Lockwood v. City of St. Louis, 24 Mo. 20; City of Beatrice v. Brethren Church, 41 Neb. 358; State v. Robertson, 24 N. J. Law (4 Zab.) 504; Cooper Hos- pital v. City of Camden, 68 N. J. Law, 208, 52 Atl. 210. A hospital is not subject to an assessment for benefits derived from municipal im- provements under a charter pro- vision to the effect that its property and effects shall not be subject to any tax or assessment. A consti- tutional amendment adopted subse- quently to such charter does not repeal the exemption. Hudson County Catholic Protec- tory v. Kearney Tp., 56 N. J. Law, 385. A charter provision that the property of the corporation shall be exempt from the imposition of "any tax or assessment" applies to taxa- tion for local improvements as well as for purposes of general revenue, following Protestant Foster Home Soc. v. City of Newark, 36 N. J. Law, 478; Harlem Presbyterian Church v. City of New York, 5 Hun (N. Y.) 442. In re City of New York, 11 Johns. (N. Y.) 77. "The word 'taxes' means burdens, charges or imposi- tions put or set upon persons or property for public uses, and this is the definition which Lord Coke gives to the word 'talliage,' 2 Inst. 232; and Lord Holt in Garth. 438, gives the same definition in suo- stance of the word 'tax.' The legis- lature intended by that exemption to relieve religious and literary in- stitutions from these public bur- dens, and the same exemption was 343a SPECIAL ASSESSMENTS. 809 prises from the construction and establishment of which the corporate organization is supposed to receive a special benefit extended to the real estate of any minister not exceeding in value $1,500. But to pay for the opening of a street in the ratio of the 'bene- fit or advantage' derived from it is no burden. It is no talliage or tax within the meaning of the exemp- tion, and has no claim upon the public benevolence. Why should not the real estate of a minister as well as of other persons pay for such an improvement in proportion as it is benefited? There is no in- convenience or hardship in it and the maxim of law that qui sentit commodum debet sentire onus, is perfectly consistent with the inter- ests and dictates of science and re- ligion." In re Williams & Anthony Streets, 19 Wend. (N. Y.) 678; Buffalo City Cemetery v. City of Buffalo, 46 N. Y. 506. The cemetery was by law exempt from all public taxes, rates and assessments; this exemption was held not to include a paving as- sessment. Folger, Judge, in the opinion says: "We think that the current of the authorities in this state and in some of the sister states runs to this result: that public tax- es, rates and assessments are those which are levied and taken out of the property of the person assessed, for some public or general use or purpose, in which he has no direct, immediate and peculiar interest; being exactions from him towards the expense of carrying on the gov- ernment, either directly, and, in general, that of the whole common- wealth, or more mediately and par- ticularly through the intervention of municipal corporations; and that those charges and impositions which are laid directly upon the property in a circumscribed locality to effect some work of local convenience, which in its results is of peculiar advantage and importance to the property, especially assessed for the expense of it, are not public but are local and private so far as this statute is concerned." Tucker v. City of Utica, 95 App. Div. 173, 54 N. Y. Supp. 855. Prop- erty purchased with pension money is not exempt from assessments for local improvements. In re Second Ave. M. E. Church, 66 N. Y. 395; In re St. Joseph's Asylum, 69 N. Y. 353; In re Hebrew Benev. Orphan Asylum. Soc., 70 N. Y. 476; In re Tremont Baptist Church, 66 Misc. 590, 73 N. Y. Supp. 1075. A valid exemption from such taxation may, however, be made for a limited pe- riod. Roosevelt Hospital v. City of New York, 84 N. Y. 108; Monroe County v. City of Rochester, 154 N. Y. 570; Engstad v. Grand Forks County, 10 N. D. 54, 84 N. W. 577. Section 176 of the constitution of North Dakota which provides "that the legislative assembly shall by a general law ex- empt from taxation property used exclusively for schools, religious, cemetery or church purposes," is not self-executing. City of Lima v. Lima Cemetery Ass'n, 42 Ohio St. 128; City of Phil- adelphia v. Contributors to Pennsyl- vania Hospital, 143 Pa. 367. The courts in this case held that a char- itable organization exempted from all taxation, by law, was still sub- ject to local assessment for the pur- 810 PUBLIC REVENUES. 343a equal to, at least, the prospective taxes which might be derived from taxation of their property; the same rule as suggested above in respect to special assessments applies to this class of industries. 290 In some states, homesteads or certain specifically enumerated property is not subject to forced sale under any process of law; this exemption does not usually apply to local assessments, 291 and it can be said to be a general rule that as all exemptions are in derogation of a common right they are to be construed strictly and not allowed except when given in the clearest language. 292 pose of keeping in repair the public streets and highways fronting upon its property; this liability being based upon or in the nature of a police regulation not an exercise of the taxing power. City of Philadelphia v. Sheridan, 148 Pa. 532; City of Erie v. Y. M. C. A. Ass'n, 151 Pa. 168; In re Col- lege St., 8 R. I. 474; Yates v. City of Milwaukee, 92 Wis. 352, 66 N. W. 248. The rule applied to land leased or owned by a state agricultural so- ciety. Wisconsin Industrial School v. Clark County, 103 Wis. 651. See, also, Cooley, Taxation, pp. 207 et seq., where many cases are cited sustaining the principle above given. 290 City of Tampa v. Kaunitz, 39 Fla. 683. A city has no power to grant exemption from taxation di- rectly or indirectly or in any form. Lancaster v. Clayton, 86 Ky. 373. A municipal corporation has no pow- er to confer an exemption from taxation upon a hotel the keeping of which, though for the public use, was not "a public service" under Kentucky bill of rights, 1. City of Middlesboro v. New South Brewing & Ice Co., 108 Ky. 351, 56 S. W. 427; Com. v. Burnside & C. R. R. Co., 95 Ky. 60; City of Portland v. Portland Water Co., 67 Me. 135; Frederick Elec. Light & Power Co. v. Frederick City, 84 Md. 599; Peo- ple v. Cummings, 53 App. Div. 36, 65 N. Y. Supp. 581; Id., 166 N. Y. 110; McTwiggan v. Hunter, 19 R. I. 265, 33 Atl. 5, 29 L. R. A. 526. A gift of property may be the basis of exemption. 291 Ferine v. Forbush, 97 Cal. 305; Atchison, T. & S. F. R. Co. v. Peter- son, 5 Kan. App. 103; Todd v. City of Atchison, 9 Kan. App. 251, 59 Pac. 676. The exemption of a home- stead from authorized sale under any process of law does not exempt it from sale for the payment of de- linquent taxes or special assess- ments. Nevin v. Allen, 15 Ky. L. R. 836, 26 S. W. 181); Bordages v. Hig- gins (Tex.) 19 S. W. 446; Allen v. City of Galveston, 51 Tex. 302; Lufkin v. City of Galveston, 58 Tex. 549. 292 Orange & A. R. Co. v. City Council of Alexandria, 17 Grat. (Va.) 176. All exemptions from taxation are to be construed strict- ly. See, also, City of Louisville v. Nevin, 73 Ky. (10 Bush) 549; Adams v. Yazoo & M. V. R. Co., 77 Miss. 194, 24 So. 200, 317, 28 So. 956; Mack v. Jones, 21 N. H. (1 Fost.) 393. Crawford v. Burrell Tp., 53 Pa. 219. "Taxation is an act of sov- ereignty to be performed, so far as 343c SPECIAL ASSESSMENTS. 811 (b) Contract exemptions. The reason for holding that stat- utory exemptions from taxation do not apply to local assess- ments would also hold as to property exempt from general tax- ation under a contract or special grant of exemption. 293 (c) Exemption from local assessment because of use by com- mon carriers. The one idea underlying the validity of a local as- sessment is, benefits received by the property from the making of a local improvement. It is clear, therefore, that if property is so situated, either because of its physical location or use, as to be incapable of receiving a benefit by the construction of a local improvement, local assessments cannot be levied upon it. Property which ordinarily comes within this exemption is that it conveniently can be with justice and equality to all. Exemptions, no matter how meritorious the cause, are of grace and must be strictly construed." Weeks v. City of Mil- waukee, 10 Wis. 242; Cooley, Taxa- tion, p. 205. 293 City of Covington v. Com. of Kentucky, 173 U. S. 231, 19 Sup. Ct. 383; Wells v. City of Savannah, 181 U. S. 531; Lake St. El. R. Co. v. City of Chicago, 183 111. 75, 47 L. R A. 624; Maine Water Co. v. City of Waterville, 93 Me. 586, 45 Atl. 830. But a contract exempting a water company from special taxation as a part consideration for the use of its water by the city will be en- forced. Inhabitants of Dover v. Maine Wa- ter Co., 90 Me. 180; Towne v. City Council of Newton, 169 Mass. 240. Such a contract, however, when based upon a substantial considera- tion may be enforced and its execu- tion will not invalidate a general as- sessment. Coit v. City of Grand Rapids, 115 Mich. 493, 73 N. W. 811. A con- tract exemption releasing a property owner from special assessment made for the purpose of extending a sewer through his land can be enforced when based upon a gift of the right of way for the improvement. State v. District Ct. of Fourth Ju- dicial Dist, 83 Minn. 170, 86 N. W. 15; Vrana v. City of St. Louis, 164 Mo. 146, 64 S. W. 180. A stipula- tion exempting from special assess- ments specific property accompany- ing the dedication of land to public use cannot be enforced. State v. Hannibal & St. J. R. Co.. 75 Mo. 208; City of St. Joseph v. Crowther, 142 Mo. 155. A gift or grant of land to the city for street purposes will not justify the assess- ment at the rate of one per cent, per lot, such assessment effecting the exemption of the property. Buess v. Town of West Hoboken, 51 N. J. Law, 267, 17 Atl. 110; J. ft A. McKechnie Brewing Co. v. Vil- lage of Canandaigua, 15 App. Div. 139, 44 N. Y. Supp. 317. A contract exemption from special assessments because of a gift of right of way for the local improvement can be en- forced. City of Philadelphia v. Spring Garden Farmers' Market Co., 161 Pa. 522; City of Dallas v. Dallas Consol. Elec. St. R. Co., 95 Tex. 268, 66 S. W. 835. 812 PUBLIC REVENUES. 343c belonging to and used by railroad corporations or common car- riers in the transaction of that part of their business in which the public does not participate or as to which it is not necessary that the public should have direct access to their properties. The difficulty, lack of feasibility, and inadvisability as a matter of public policy, of enforcing a tax lien against a portion of rail- road property or right of way is also a reason of equal weight. 29 * 29*McVerry v. Boyd, 89 Gal. 304; Schmidt v. Market St. & W. G. R. Co., 90 Cal. 37; New York & N. H. R. Co. v. City of New Haven, 42 Conn. 279. In this case, however, it was held that the property of a railroad company in front of a pas- senger station and along whose track the street had been improved by the city was not liable to be as- sessed for any part of the expense either because of the increased value of the land or on the ground that the station was rendered more ac- cessible. Farmers' Loan & Trust Co. v. Bor- ough of Ansonia, 61 Conn. 76; Lou- isville & N. R. Co. v. City of East St. Louis, 134 111. 656, 25 N. E. 962. A leasehold right in trackage is not subject to special assessment for local improvements. City of Bloomington v. Chicago & A. R. Co., 134 111. 451, 26 N. E. 366. Railroad property receives no bene- fit from the widening of a street where it possesses a track and there- fore cannot be assessed for any part of the cost. Chicago, R. I. & P. R. Co. v. City of Chicago, 139 111. 573, 28 N. E. 1108; Neustadt v. Illinois Cent. R. Co., 31 111. 484. But see, however, the case of Illinois Cent. R. Co. v. City of Decatur, 147 U. S. 190, as holding that the property of the 111. Cent. R. Co. is subject to tax- ation for local improvements. Illi- nois Cent. R. Co. v. City of Mattoon, 141 111. 32; Rich v. City of Chicago, 152 111. 18. The possibility that the neighborhood will increase in popu- lation is not a "benefit" such as to render railroad land liable to its por- tion of the cost of a sewer. City of Bloomington v. Chicago & A. R. Co., 134 111. 451; Chicago & N. W. R. Co. v. Village of Elmhurst, 165 111. 148. Where railroad prop- erty is subject to assessments it can be sold for their nonpayment in the same manner as lands delinquent for state and county taxes. Village of River Forest v. Chicago & N. W. R. Co., 197 111. 344. There can be no assessment where the property is used as a right of way merely and will not be benefited by the proposed improvement. Indianapolis & V. R. Co. v. Capitol Pav. & Const. Co., 24 Ind. App. 114, 54 N. E. 1076; Chicago, R. I. & P. R. Co. v. City of Ottumwa, 112 Iowa, 300, 83 N. W. 1074, 51 L. R. A. 763; Atchison, T. & S. F. R. Co. T. Peter- son, 5 Kan. App. 103, 48 Pac. 877. The question is one, however, for the exclusive determination of the legislature. Bakewell v. Police Jury, 20 La. Ann. 334. The burden is upon the party claiming an ex- emption. City of Boston v. Boston & A. R. Co., 170 Mass. 95, 49 N. E. 95. Prop- erty used for railroad purposes is al- ready devoted to a public use. De- troit, G. H. & M. R. Co. v. City of Grand Rapids, 106 Mich. 13, 28 L. R. A. 793. The road bed of a railroad 343c SPECIAL ASSESSMENTS. 813 On the other hand, property which is not so used or of this character is clearly subject both to taxation and the levy of local assessments. The same rule has been applied by the courts in many cases in construing the word "taxation" as used in grants of exemption. That phrase being interpreted as not in- cluding assessments for local municipal improvements, it not being taxation within the common acceptation of that term. 285 company cannot be locally assessed where the basis of such assessment is the principle of benefits received. Auditor General v. Duluth, S. S. & A. R. Co., 116 Mich. 122, 74 N. W. 505; First Division of St. Paul & P. R. Co. T. City of St. Paul, 21 Minn. 526; City of St. Paul v. St. Paul & S. C. R. Co., 23 Minn. 469; State v. Ramsey County Dist. Ct, 68 Minn. 242; Morris & E. R. Co. v. Jersey City, 36 N. J. Law, 56; Winona & St. P. R. Co. v. City of Watertown, 1 S. D. 46; Chicago, M. & St. P. R. Co. v. City of Milwaukee, 89 Wis. 506, 28 L. R. A. 249. Sweaney v. Kansas City R. Co., 54 Mo. App. 265; McCutcheon v. Pacific R. Co., 72 Mo. App. 271; New Jersey Midland R. Co. v. Jersey City, 42 N. J. Law, 97. Under 9 of the act of 1873, p. 112, providing for the taxation of railroad property, if such property is benefited by a local improvement, it is subject to a spe- cial assessment for its proportionate cost of such improvement. In re West Shore & O. Terminal Co. (N. J. Law) 49 A. 543; In re Pennsyl- vania R. Co. (N. J. Law) 49 Atl. 543. The rule applies to land leased by the railroad company and used for railroad purposes. People v. Gilon, 126 N. Y. 147, 27 N. E. 282; People v. Adams, 88 Hun, 122, 34 N. Y. Supp. 579. A railroad cannot be arbitrarily assessed an amount sufficient to construct bridges over its tracks at street cor- ners. In re Com'rs of Public Parks, 47 Hun (N. Y.) 302; Con way v. City of Rochester, 24 App. Div. 489, 49 N. Y. Supp. 244; City of Allegheny v. Western Pa. R. Co., 138 Pa. 375, 21 Atl. 763. The roadbed of a railroad company is conclusively presumed not to be benefited by the construc- tion of a local improvement and therefore, it is not subject to as- sessment for any proportion of the cost. Junction R. Co. v. City of Philadelphia, 88 Pa. 424; City of Erie v. Piece of Land Fronting on State St., 175 Pa. 523; Columbia & P. S. R. Co. v. Chilberg, 6 Wash. 612; Oshkosh City R. Co. v. Winne- bago County, 89 Wis. 435; Chicago, M. & St. P. R. Co. v. City of Mil- waukee, 89 Wis. 506, 28 L. R. A. 249. 295 Illinois Cent. R. Co. v. City of Decatur, 147 U. S. 190, 37 L. Ed. 132. The following is the syllabus in this case: "1. A special tax for a local Im- provement is not within the exemp- tion from taxation granted to the Illinois Central Railroad Company by section 22 of the Act of 1851. "2. Between general taxes for the support of the government, -and spe- cial taxes for local improvement, th