if, indeed, it be not illegal.' Therefore, a watchman of a city, who, while in the discharge of his duty as such, discovers a person in the act of committing a crime, cannot recover from the city a reward offered by it.'

Public Buildings.

92. Power to the officers or to one of the departments of a municipal corporation, to provide for repairs to public buildings, does not give authority to erect a new builàing, and certainly not a large and expensive edifice.' But power to a municipal corporation to rebuild or repair carries with it the right to determine plan and mode.*

Police Powers and Regulations.

§ 93. Many of the powers most generally exercised by municipalities are derived from what is known as the police power of the state, and are delegated to them to be exercised for the public good. Of this nature is the authority to suppress nuisances, preserve health, prevent fires, to regulate the use and storing of dangerous articles, to establish and control markets, and the like. These and other

'Stotesbury v. Smith, 2 Burr. 924; 3 Kent Com. 185; Harris v. Watson, Peake, 72; Stilk v. Myrick, 2 Campb. 317; Bridge v. Cage, Cro. Jac. 103. See chapter on Corporate Officers, post, secs. 172, 173.

Pool v. Bo ston, 5 Cush. 219, 1849; Gilmore v. Lewis, 12 Ohio, 281; Means v. Hendershott, 24 Iowa, 78; Chap. IX. post.

* Peterson v. Mayor, &c., 17 N. Y. 449, 455, per Denio, J. Contract between city and county in respect to public buildings: Bergen v. Clarkson, 1 Halst. (N. J.) 352, 1796; De Witt v. San Francisco, 2 Cal. 289, 1852.

Ely v. Rochester, 26 Barb. 133, 1837. As to power to build town house. French . Quincy, 3 Allen, 9. Incidental power to provide suitable accommodations for the transaction of the business of the corporation. People v. Harris, 4 Cal. 9; see Vanover v. Davis, 27 Geo. 354; chapter on Corporate Property, post. Council have power to fit up and furnish the room in which they meet, and the court refused to enjoin them from furnishing the council chamber with portraits of the governors of the state. Reynolds v. Mayor of Albany, 8 Barb. 597; People v. Harris, 4 Cal. 9; but see Hodges v. Buffalo, 2 Denio, 110; Stetson v. Kempton, 13 Mass. 272, 1816, per Parker, C. J. Proper uses of public buildings: Scofield. School District, 27 Conn. 499; French v. Quincy, 3 Allen, 9. Market Houses, post, secs. 313-318, 432, 510.

similar topics will be considered in appropriate places. But it may here be observed, that every citizen holds his property subject to the proper exercise of this power, either by the state legislature directly, or by public corporations to which the legislature may delegate it. Laws and ordinances relating to the comfort, health, convenience, good order, and general welfare of the inhabitants, are comprehensively styled, "Police Laws or Regulations." And it is well settled that laws and regulations of this character, though they may disturb the enjoyment of individual rights, are not unconstitutional, though no provision is made for compensation for such disturbances. They do not appro priate private property for public use, but simply regulate its use and enjoyment by the owner. If he suffers injury, it is either damnum absque injuria, or, in the the theory of the law, he is compensated for it by sharing in the general benefits which the regulations are intended and calculated to secure. The citizen owns his property absolutely, it is true; it cannot be taken from him for any private use whatever, without his consent, nor for any public use without compensation; still he owns it subject to this restriction, namely that it must be so used as not to injure others, and that the sovereign authority may, by police regulations, so direct the use of it that it shall not prove pernicious to his neighbors or the citizens generally. These regulations rest upon the maxim, salus populi suprema est lex. This power, to restrain a private injurious use of property, is very different from the right of eminent domain. It is not a taking of private property for public use, but a salutary restraint on a noxious use by the owner, contrary to the maxim, sic utere tuo ut alienum non lædas.'

1 Baker v. Boston, 12 Pick. 184, 1831 (as to nuisances); Wadleigh . Gillman, 12 Maine, 403 (as to wooden buildings); Vanderbilt v. Adams, 7 Cowen, 349 (as to harbor regulations, where the general principle upon which police laws rest, is very satisfactorily discussed by Woodworth, J.); Commonwealth v. Alger, 7 Cush. 53, 84 (valuable opinion by Shaw, C. J.); Coates v. Mayor, &c. of New York, 7 Cowen, 585 (as to ordinance prohibiting the interment of the dead within the city); Goszler v. Georgetown, 6 Wheat. 181 (as to power to grade). Speaking of turnpike acts, paving acts, &c., Lord Kenyon, in the case of the Governor, &c. v. Meredith, 4 Term Rep. 790, 796, says: "Some individuals suffer an inconvenience under all these acts of parliament; but the interests of individuals must give way to

Prevention of Fires.

94. The prevention of damage by fire is usually an object within the scope of municipal authority, either by express grant or by the power, in a chartered town or city, to make police regulations or needful by-laws. And where such is the case, the town or municipal body is authorized to appropriate money for the purchase of engines, or for the repair thereof, if used for the purpose of extinguishing fires therein; and this, whether they belong to the corporation or were purchased by private subscription.' And money may also be appropriated for the benefit of engine and hook and ladder companies therein.'

Quarantine and Health.

$95. The preservation of the public health and safety is. often made a matter of municipal duty, and it is competent the accommodation of the public." And per Buller, J., in same case: "There are many cases in which individuals sustain an injury, for which the law gives no action; for instance, pulling down houses, or raising bulwarks, for the preservation and defence of the kingdom against the king's enemies." But "the law will not allow the right of property to be invaded, under the guise of a police regulation for the preservation of health, when it is manifest that such is not the object and purpose of the regulation." Per Wilde, J., in Austin v. Murray, 16 Pick. 126; Greene v. Savannah, 6 Geo. 1, 1845; People v. Hawley, 3 Mich. 330; Ames v. County, 11 Mich. 139. The extent of the police power will be further discussed in the chapter on Ordinances, post. See, also, Cooley Const. Lim. 572-594. How far and when, cities, in executing police duties, are agents of the state, and not of the municipality. See Buttrick v. Lowell, 1 Allen, 172; Mitchell v. Rockland, 51 Maine, 118, 122; State ex rel. &c. v. St. Louis Court, 34 Mo. 356; White . Kent, 11 Ohio St. 550; Thomas v. Ashland, 12 Ib. 127; City Council. Payne, 2 Nott & McCord (South Car.), 475; People v. Hurlburt, 24 Mich. 44, 1871. Ante, sec. 34. Post, secs. 191, 326, 329, 609.

1 Allen v. Taunton, 19 Pick. 485, 1837; Huneman v. Fire District, 37 Vt. 40; Robinson v. St. Louis, 28 Mo. 488 (repair of engine house); Wadleigh v. Gillman, 12 Maine, 403; Vanderbilt v. Adams, 7 Cowen, 349, 352; post, secs. 338, 442 n., 545, 756-759, 774.

Van Sicklen . Burlington, 27 Vt. (1 Wms.) 70, 1854. Approving, Allen v. Taunton, supra. See post, chapter on Ordinances. Power of council over fire companies, and to appoint officers therefor. See Miller v. Savannah Fire Co., 26 Geo. 678.

for the legislature to delegate to municipalities the power to regulate, restrain, and even suppress, particular branches of business, if deemed necessary, for the public good. The subject will be considered more in detail in the chapter on Ordinances. The general nature and scope of the authority as it is not unfrequently bestowed, are well illustrated by a case in Maryland. By its charter the city of Baltimore was vested with "full power and authority to enact all ordinances necessary to preserve the health of the city, prevent and remove nuisances, and to prevent the introduction of contagious diseases within the city and within three miles of the same." Commenting on this provision of the charter, the Court of Appeals say: "The transfer of this salutary and essential power is given in terms as explicit and comprehensive as could have been used for such a purpose. To accomplish, within the specified territorial limits, the objects enumerated, the corporate authorities were clothed with all the legislative powers which the general assembly could have exercised. Of the degree of necessity for such municipal legislation, the Mayor and City Council of Baltimore were the exclusive judges. To their sound discretion is committed the selection of the means and manner (contributory to the end) of exercising the powers which they might deem requisite to the accomplishment of the objects of which they were made the guardians. To prevent the introduction of contagious diseases within the city, and within three miles of the same,' they might impose heavy penalties on the captain, owner, or consignee of any ship or other vessel entering the port of Baltimore, on board of which small pox or other contagious diseases might prevail, or they might seek the accomplishment of their object by causing the vessel and all persons to be taken possession of and controlled until their purification and disinfection were effected, and impose on the captain, owner, or consignee, the payment or reimbursement of all the expenses incurred. by such proceedings; or they might adopt, at the same time, both suggested remedies, if for the successful and

1

Shrader, Ex parte, 33 Cal. 279, 1867; Asbrook . Commonwealth, 1 Bush (Ky.) 139, 1866; Tucker v. Virginia City, 4 Nev. 20. Post, secs. 303, 805, 306, 775.

faithful execution of their powers they deemed it necessary to do so."

§ 96. And it was held, that, under this authority, it was competent for the city to pass an ordinance providing for the appointment of a "health officer," prescribing his duties and powers; and that the city might recover from the consignee of a vessel, and was not confined to the charterer, the expenses incurred by it in disinfecting and purifying the vessel, persons, and baggage on board of her at the time of her arrival, from the infection of the small pox. Respecting the extent of liability, the court decided, that the defendant was not entitled to an instruction that the recovery must be limited to the amount of expenses absolutely necessary to preserve the health of the city, or to prevent the introduction of the small pox. On this point the court expressed its judgment to be that, "if the health officer" (on whom the duty of disinfecting the vessel was imposed by ordinance), in causing expenses, "acted bona fide, within the limits of a sound discretion, and with reasonable skill and judgment, in the discharge of his official duties, the reasonable expenses thus incurred must be paid." Concerning the power of the corporation over the persons on board of an infected vessel, the court was of opinion, that it was competent for the health officer to be authorized, by ordinance, to send persons laboring under infectious disease to the hospital, and also those on board of the vessel liable to be affected by the disease, if, in his opinion, such a course be necessary to prevent the spread of disease; and the owner, master, or consignee may be liable for expenses thus incurred, if the health officer acts with reasonable skill and judgment, and exercises a sound and honest discretion."

97. A city having power to pass ordinances respecting the police of the place, and to preserve health, is authorized, as a sanitary and police regulation, to contract to procure a supply of water, by boring an artesian well, or otherwise, on the public square, and is the judge of the mode best adapted to accomplish the object.'!

1 Harrison v. Baltimore, 1 Gill (Md.) 264, 1843. Ante, sec. 58.

' Harrison v. Baltimore, 1 Gill (Md.) 264, 1843.

'Livingston v. Pippin, 31 Ala. 542, 1858. As to water-works: Rome