railway in one of its streets, and confer privileges exclusive in their character and designed to be perpetual in duration. In a case where this was attempted, it has been said by the court: "The corporation has the exclusive right to control and regulate the use of the streets of the city. In this respect, it is endowed with legislative sovereignty. The exercise of that sovereignty has no limit, so long as it is within the objects and trusts for which the power is conferred. An ordinance regulating a street is a legislative act, entirely beyond the control of the judicial power of the State. But the resolution in question is not such an act. Though it relates to a street, and very materially affects the mode in which that street is to be used, yet in its essential features it is a contract. Privileges exclusive in their nature and designed to be perpetual in their duration are conferred. Instead of regulating the use of the street, the use itself to the extent specified in the resolution is granted to the associates. For what has been deemed an adequate consideration, the corporation has assumed to surrender a portion of their municipal authority, and has in legal effect agreed with the defendants that, so far as they may have occasion to use the street for the purpose of constructing and operating their railroad, the right to [*208] regulate * and control the use of that street shall not be exercised. . . . It cannot be that powers vested in the corporation as an important public trust can thus be frittered away, or parcelled out to individuals or joint-stock associations, and secured to them beyond control."1

So it has been held, that the city of Philadelphia exercised a portion of the public right of eminent domain in respect to the streets within its limits, subject only to the higher control of the State and the use of the people; and therefore a written license granted by the city, though upon a valuable consideration, author1 Milhau v. Sharp, 17 Barb. 435; Same case, 28 Barb. 228, and 27 N. Y. 611. See also Davis v. Mayor, &c., of New York, 14 N. Y. 506; State v. Mayor, &c., 3 Duer, 119; State v. Graves, 19 Md. 351. The consent of the legislature in any such case would relieve it of all difficulty, except so far as questions might arise concerning the right of individuals to compensation, as to which see post, ch. 15. In the case of Milhau v. Sharp, above cited, it was also held that, under authority "from time to time to regulate the rates of fare to be charged for the carriage of persons," the corporation could not pass a resolution that, in respect to the carriages employed on a street-railway therein authorized to be constructed, that power should never be exercised.

izing the holder to connect his property with the city railway by a turnout and track, was not such a contract as would prevent the city from abandoning or removing the railway wherever, in the opinion of the city authorities, such action would tend to the benefit of its police.1

Thus hedged in by the limitations which control the legislative power of the State, these corporations are also entitled to the same. protection which surrounds the exercise of State legislative power. One of these is that no right of action shall arise in favor of an individual for incidental injury suffered by him in consequence of their adopting or failing to adopt legislative action.2 Another is that the same presumption that they have proceeded upon sufficient information and with correct motives shall support their legislative action which supports the statutes of the State, and precludes judicial inquiry on these points.3 These rules, however, must be confined to those cases where the corporation * is [* 209] exercising a discretionary power, and where the reasons

which are to determine whether it shall act or not, and if it does, what the action shall be, are addressed to the municipal body exclusively.

Among the implied powers of such an organization appears to be the power to defend and indemnify its officers where they have incurred liability in the bona fide discharge of their duty. It has been held that, where irregularities occurred in the assessment of taxes, in consequence of which the tax was void, and the assessors refunded to the persons taxed the moneys which had been collected and paid into the town, county, and State treasuries, the town had authority to vote to raise a sum of money to refund to the assessors what had been so paid by them, and that such vote was a legal promise to pay, on which the assessors might maintain action. against the town. "The general purpose of this vote was just and wise. The inhabitants, finding that three of their townsmen

1 Bryson v. Philadelphia, 47 Penn. St. 329.

2 Radcliffe's Ex'rs v. Mayor, &c., of Brooklyn, 4 N. Y. 195; Duke v. Mayor, &c., of Rome, 20 Geo. 655; Larkin v. Saginaw County, 11 Mich. 88; St. Louis v. Gurno, 12 Mo. 414; Griffin v. Mayor, &c., of New York, 9 N. Y. 456; Bennett v. New Orleans, 14 La. An. 120; Weightman v. Washington, 1 Black, 39; Western College v. Cleveland, 12 Ohio, N. s. 375; Barton v. Syracuse, 37 Barb. 292; Commissioners v. Duckett, 20 Md. 468.

3 Milhau v. Sharp, 15 Barb. 193; New York and Harlæm Railroad Co. v. Mayor, &c., of New York, 1 Hilton, 562.

-

who had been elected by themselves to an office, which they could not, without incurring a penalty, refuse to accept, had innocently and inadvertently committed an error which in strictness of law annulled their proceedings, and exposed them to a loss perhaps to the whole extent of their property, if all the inhabitants individually should avail themselves of their strict legal rights, finding also that the treasury of the town had been supplied by the very money which these unfortunate individuals were obliged to refund from their own estates, and that, so far as the town tax went, the very persons who had rigorously exacted it from the assessors, or who were about to do it, had themselves shared in due proportion the benefits and use of the money which had been paid into the treasury, in the shape of schools, highways, and various other objects which the necessities of a municipal institution call for, concluded to re-assess the tax, and to provide for its assessment in a manner which would have produced perfect justice to every individual of the corporation, and would have protected the assessors from the effects of their inadvertence in the assessment which was found to be invalid. The inhabitants of the town had a perfect right to make this re-assessment, if they had a right to raise the money originally. The necessary supplies to the treasury of a town cannot be intercepted, because of an inequality in the mode of apportioning the sum upon the individuals. Debts must be

incurred, duties must be performed, by every town; [*210] *the safety of each individual depends upon the execution

of the corporate duties and trusts. There is and must be an inherent power in every town to bring the money necessary for the purposes of its creation into the treasury; and if its course is obstructed by the ignorance or mistakes of its agents, they may proceed to enforce the end and object by correcting the means; and whether this be done by resorting to their original power of voting to raise money a second time for the same purposes, or by directing to re-assess the sum before raised by vote, is immaterial; perhaps the latter mode is best, at least it is equally good."1

It has also been held competent for a town to appropriate money to indemnify the school committee for expenses incurred in defending an action for an alleged libel contained in a report made by them in good faith, and in which action judgment had been

1 Per Parker, Ch. J., in Nelson v. Milford, 7 Pick. 23.

rendered in their favor. And although it should appear that the officer had exceeded his legal right and authority, yet if he has acted in good faith in an attempt to perform duty, the town has the right to adopt his act and to bind itself to indemnify

him. And perhaps the legislature may even have power [* 211] to compel the town, in such a case, to reimburse its officers the expenses incurred by them in the honest but mistaken discharge of what they believed to be their duty, notwithstanding the town, by vote, has refused to do so.3

Construction of Municipal Powers.

The powers conferred upon municipalities must be construed with reference to the object of their creation, namely, as agencies 1 Fuller v. Inhabitants of Groton, 11 Gray, 340. See also Hadsell v. Inhabitants of Hancock, 3 Gray, 526.

A surveyor of highways cut a drain for the purpose of raising a legal question as to the bounds of the highway, and the town appointed a committee to defend an action brought against the surveyor therefor, and voted to defray the expenses incurred by the committee. By the court: " It is the duty of a town to repair all highways within its bounds, at the expense of the inhabitants, so that the same may be safe and convenient for travellers; and we think it has the power, as incident to this duty, to indemnify the surveyor or other agent against any charge or liability he may incur in the bona fide discharge of this duty, although it may turn out on investigation that he mistook his legal rights and authority. The act by which the surveyor incurred a liability was the digging a ditch, as a drain for the security of the highway; and if it was done for the purpose of raising a legal question as to the bounds of the highway, as the defendants offered to prove at the trial, the town had, nevertheless, a right to adopt the act, for they were interested in the subject, being bound to keep the highway in repair. They had, therefore, a right to determine whether they would defend the surveyor or not; and having determined the question, and appointed the plaintiffs a committee to carry on the defence, they cannot now be allowed to deny their liability, after the committee have paid the charges incurred under the authority of the town. The town had a right to act on the subject-matter which was within their jurisdiction; and their votes are binding and create a legal obligation, although they were under no previous obligation to indemnify the surveyor. That towns have an authority to defend and indemnify their agents who may incur a liability by an inadvertent error, or in the performance of their duties imposed on them by law, is fully maintained by the case of Nelson v. Milford, 7 Pick. 18." Bancroft v. Lynnfield, 18 Pick. 568.

2 Guilford v. Supervisors of Chenango, 13 N. Y. 143. But where officers make themselves liable to penalties for refusal to perform duty, the corporation has no authority to indemnify them. Halstead v. Mayor, &c., of New York, 3 N. Y. 430; Merrill v. Plainfield, 45 N. H. 126. See Frost v. Belmont, 6 Allen, 152.

of the State in local government.1 The State can create them for no other purpose, and it can confer powers of government to no other end, without at once coming in conflict with the constitutional maxim, that legislative power cannot be delegated, or with other maxims designed to confine all the agencies of government to the exercise of their proper functions. And wherever the municipality shall attempt to exercise powers not within the proper province of local self-government, whether the right to do so be claimed under express legislative grant, or by implication from the charter, the act must be considered as altogether ultra vires.

A reference to a few of the adjudged cases will perhaps best illustrate this principle. The common council of the city of Buffalo undertook to provide an entertainment and ball for its citizens and certain expected guests on the 4th of July, and for that purpose entered into contract with a hotel keeper to provide the entertainment at his house, at the expense of the city. The entertainment was furnished and in part paid for, and suit was brought to recover the balance due. The city had authority, under its charter, to raise and expend moneys for various specified pur

A somewhat peculiar question was involved in the case of Jones v. Richmond, 18 Grat. 517. In anticipation of the evacuation of the city of Richmond by the Confederate authorities, and under the apprehension that scenes of disorder might follow, which would be aggravated by the opportunity to obtain intoxicating liquors, the common council ordered the seizure and destruction of all such liquors within the city, and pledged the faith of the city to the payment of the value. The Court of Appeals of Virginia afterwards decided that the city might be held liable on the pledge in an action of assumpsit. Rives, J., says: "By its charter the council is specially empowered to pass all by-laws, rules, and regulations which they shall deem necessary for the peace, comfort, convenience, good order, good morals, health, or safety of said city, or of the people or property therein.' It is hard to conceive of larger terms for the grant of sovereign legislative powers to the specified end than those thus employed in the charter; and they must be taken by necessary and unavoidable intendment to comprise the powers of eminent domain within these limits of prescribed jurisdiction. There were two modes open to the council: first, to direct the destruction of these stores, leaving the question of the city's liability therefor to be afterwards litigated and determined; or, secondly, assuming their liability, to contract for the values destroyed under their orders. Had they pursued the first mode, the corporation would have been liable in an action of trespass for the damages; but they thought proper to adopt the latter mode, make it a matter of contract, and approach their citizens, not as trespassers, but with the amicable proffer of a formal receipt and the plighted faith of the city for the payment. In this they seem to me to be well justified."