upon the same terms if they should desire, the court were of opinion that the city authorities had no power to do ' work which could not be contracted for in this mode, or which the abutters could not themselves perform, and that the award of a contract for a patented pavement to the assignee of the patentee, and who had the exclusive right to lay the same, was unauthorized, and the contract void. '

As the purpose of such a provision in the charter is to secure, through competition, the most advantageous terms, something is necessarily left to the discretion, to be fairly exercised, of course, of the council, in the adoption of the course which will best attain the end; and it does not contravene this restriction to call for bids putting down various kinds of wood and stone pavements, some patented and some not, and afterwards, when all the proposals are in, selecting the one which is relatively the lowest or the most satisfactory, all things considered; but when the kind is thus selected, the lowest responsible bidder, who has the lawful power to perform his undertaking, has the absolute legal right to have the contract awarded to him.'

§ 391. In an action on a contract for lighting certain streets in New York City with gas, it appeared that the company had, by law, the exclusive right to furnish that part of the city with gas. The charter of the city, however, required all contracts for wants and supplies beyond a certain value, which the contract in suit exceeded, to be let to the lowest bidder, and the contract not being so let, it was claimed to be void. It was held that since the company had the exclusive right to furnish the gas (which prevented competition), the provision of the charter requiring contracts to be let to the lowest bidder (with a view to secure compe

This case

'Nicholson Pavement Company v. Painter, 35 Cal. 699, 1868. was decided before Dean v. Charlton, supra, and the opinion of Sanderson, J., in its general scope, sustains the view of the Wisconsin court; and approving of the language of Field, C. J., in Zottman's Case, 20 Cal. 102, treats "the mode as constituting the measure of the power." Post, chap. XIX.

May, Atty.-Genl. v. Detroit, 12 Am. Law Reg. (N. S.) March, 1873 p. 149. Remedy of lowest bidder when contract is awarded to another Ib. Post, chap. XXII. sec. 730a.

tition) was inapplicable, and the contract was sustained under the general corporate power of the city to contract for the lighting of its streets.'

§ 392. Although notice has been published inviting proposals to do public work, yet the contract is incomplete until the proposal is actually accepted, and the corporation inviting the proposal is not, it seems, liable to damages for refusing to accept an offer, even though it be the lowest regular offer made. It is certainly not thus liable where the notice and the proposals, with respect to the amount and form of the security, do not comply with the requirements of the ordinances of the city, and where these provided that contracts should not be executed until laid before. the common council.'

§ 393. Contracts of Suretyship.-A municipal corporation cannot, without legislative authority, become surety for another corporation or individual; cannot guaranty the bonds or obligations of another, or make accommodation indorsements. Such an authority cannot be implied or deduced from the general and usual powers conferred upon such corporations. Although such a corporation may have power directly to accomplish a certain object, and itself expend its revenues or money therefor, yet this does not give or include the power to lend its credit to another who may be empowered to effect the same object. Expending money by a city council, as agents or administrators of their constituents, is a very different thing from binding their con

1 Harlem Gas Company v. Mayor, &c., 33 N. Y. 309.

Smith v. Mayor, &c. of New York, 10 N. Y. (6 Seld.) 504, 1853; affirming S. C., 4 Sandf. S. C. R. 221. The notice inviting proposals to do the work," says Willard, J., delivering the opinion of the Court of Appeals (10 N. Y. 504), "did not, in my judgment, bind the street commissioner of the corporation to accept, at all events, the lowest bid, even though, in all respects, formal. Until the bid is accepted by some act on the part of the corporation, no obligatory contract was created." See, also. People v. Croton Aqueduct Board, 26 Barb. 240; State v. Directors, &c., 5 Ohio St. 234, 1855; Altemus. Mayor, &c., 6 Duer, 446; Argenti v. San Francisco, 16 Cal. 255; Wiggins ↑. Phila., 2 Brews. (Pa.) 444; Ib. 443.

Further as to lowest bidder, see chapter on Mandamus, post, secs. 699, n., 791 n.

stituents by a contract of suretyship-"a contract which carries with it a lesion by its very nature."1

394. Authorized Contracts.—Rights and Liabilities. -But with respect to authorized contracts a municipal corporation has the same rights and remedies, and is bound thereby, and may be sued thereon in the same manner as individuals. Thus, if such a corporation, duly empowered, enters into a partnership relation with private individuals with respect to the profits to be derived from a market house, its rights, especially as regards the copartners and the financial administration of the partnership property, are not different from those of an ordinary partner.*

1 Louisiana State Bank v. Orleans Navigation Company, 3 La. An. 294, 1848. In this case the municipal corporation was sought to be made liable upou its guaranty of bonds issued by the navigation company, which the mayor, in the name of the municipality, was authorized, by certain resolutions of the council, to indorse. It was held that the council transcended its powers, and the guaranty did not impose any legal obligation upon the municipality. The disability of such corporations, without express power, to enter into contracts of suretyship, is shown in the masterly and exhaustive opinion delivered by Eustes, C. J.

A municipal corporation has no implied power to lend its credit or make accommodation paper for the benefit of citizens, to enable them to execute private enterprises. Clark v. Des Moines, 19 Iowa, 199, 224, 1865; 1 Parsons N. & B. 166; Smead v. Railroad Company, 11 Ind. 105.

The power to borrow money for any public purpose does not authorize the loan of the credit of the city. Chamberlain v. Burlington, 19 Iowa, 395; contra, Rogers v. Burlington, 3 Wall. 654, four judges dissenting. And see Meyer v. Muscatine, 1 Wall. 334. The author cannot but think that power to a corporation to borrow money should not be construed to give the power to loan its credit, but only to borrow money for legitimate and proper municipal objects, as shown by the charter or constituent act of the corporation. Sec Payne v. Brecon, 3 Hurl. & Nor. 572. Ante, sec. 81; Bate man v. Mid-Wales Railway Co., Law Rep. 1 C. P: 510.

* New Orleans v. Guillotte, 12 La. An. 818, 1857. In New Orleans e. St. Louis Church, 11 La. An. 244, 1856, it was contended by the counsel for the city that even if certain resolutions in favor of the defendants allowing them to establish a cemetery within the city amounted to a contract, and though their repeal be not justified by the facts, and a violation of the contract by the city, yet that the latter has the power to violate its contracts, and the defendants have no redress except in an action for damages. But this doctrine was rejected by the court, which declared it to be as "unsound as it is novel," since a liability for damages is "the very opposite of a recognition of a right to violate the contract." Per Buchanan, J.

.

§ 395. So where a municipal corporation, acting within the scope of its powers, in order to secure the erection of gas works, passed an ordinance whereby the gas works and their income were placed in the hands of trustees, for the benefit of those who loaned money to execute the undertaking, such ordinance is a contract, and cannot be violated by the city, although it may deem it for the interest of its citizens to do so; nor is it in the power of the legislature to authorize its violation.'

§ 396. So where the mayor and council have, by the charter, power to make, in their corporate capacity, all such contracts as they may deem necessary for the welfare of the corporation, they may contract to sell stock owned by the city in a private corporation, to enable the city to pay its debts; and the discretionary power with which the mayor and council are invested cannot, when bona fide exercised, be controlled by a court of equity, at the instance of property owners and tax-payers."

2

§ 397. Power to a city corporation to pave streets at the expense of the owners and recover the amount from them if they fail themselves to pave when required by ordinance, gives the corporation the power to purchase paving materials and incur a debt for that purpose; and in a suit by the vendor of such materials against the corporation, it is no defence that the council had not passed an ordinance before they purchased the materials, requiring the owners to pave: this is a matter to which a creditor is not bound to look. The question would be different if, the city had sought to make the lot owner liable for the cost of paving; in such case, it must show a strict compliance with the requirements of its charter."

§ 398. Settlement of Disputed Claims, &c.-Growing out of its authority to create debts and to incur liabilities, a

1 Western Savings Fund Society v. Philadelphia, 31 Pa. St. 175, 1854; Same v. Same, Ib. 185, 1858; Ante, chap. IV. sec. 41.

2 Semmes v. Columbus, 19 Ga. 471, 1856. Ante, sec. 58; post, chapter on Corporate Property, sec. 445. Post, chap. XX.

3 Bigelow v. Perth Amboy, 1 Dutch. (N. J.) 297, 1855. Post, chap. XIX

municipal corporation has power to settle disputed claims against it, and an agreement to pay these is not void for want of consideration.' If it has obtained a contract which, by mistake or a change of circumstances, it deems to operate oppressively upon the other party, an agreement to make an additional compensation, or to modify or annul it, is not invalid for want of consideration. A town may make a contract with a creditor whereby the latter agrees to discount or throw off a portion of his debt, and such an agreement, if founded on a sufficient consideration, will be enforced.'

$399. Contracts with Attorneys.-Resulting also from

Augusta v. Leadbetter, 16 Maine, 45, 1839; Bean v. Jay, 23 Maine, 117, 121, 1843; People v. Supervisors, 27 Cal. 655; People v. Coon, 25 Cal. 648. It may annex conditions to a proposal of settlement, and is not liable unless the conditions are met. Merrill v. Dixfield, 30 Maine, 157, 1849. A municipality may, without special grant, issue new bonds in the place of old bonds which had been issued according to law. Rogan v. Watertown, 30 Wis. 259, 1879. Infra, sec. 412, n.

Bean v. Jay, 23 Maine, 117, 121; Meech v. Buffalo, 29 N. Y. 198, 1864. Further, as to consideration: Baileyville v. Lowell, 20 Maine, 178, 1841 Nelson v. Milford, 7 Pick. 18. 1828-valuable opinion of Parker, C. J. Sec People v. Stout, 23 Barb. 349. Ante, chap. IV. sec. 44. The power to suc and be sued gives to a corporation the right to settle or compromise claims. Where a city has a judgment, from which an appeal is about to be taken, the council may, if done in good faith, cancel the judgment on the payment of costs, and such an agreement, when executed, is binding upon the corporation. Petersburg v. Mappin, 14 Ill. 193, 1852; Supervisors . Bowen, 4 Lansing, 24, 1871.

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Power to submit to arbitration. Dix v. Dummerston, 19 Vt. 263; Griswold v. Stonington, 5 Conn. 367; Canal Company v. Swann, 5 How. (U. S.) 83. Power exists unless the corporation be disabled. In re Corporation, &c., 6 Upper Can. Law J. 207; In re Corporation, &c, 19 Upper Can. Q. B. 450. Baileyville. Lowell, 20 Maine, 178, 1841. In this case, the town against which the creditor had an execution had the option, and was authorized to raise the money by loan or by assessment; and if in the latter mode, either at once or by instalments. If not raised and pan, the creditor was authorized to cause the property of the inhabitants to be distrained upon his writ. It was held, under these circumstances, that an agreement by the creditor, which was accepted and complied with by the town, that if the town would at once assess the amount required, and collect the same, he would abate a portion of his debt, was founded upon a sufficient consideration, and was binding upon him.