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poses, and also "to defray the contingent and other expenses of the city." But providing an entertainment for its citizens is no part of municipal self-government, and it has never been

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considered, where the common law has prevailed, that [* 212] the power to do so pertained to the government in any of

its departments. The contract was therefore held void, as not within the province of the city government.1

The supervisors of the city of New York refused to perform a duty imposed upon them by law, and were prosecuted severally for the penalty which the law imposed for such refusal, and judgment recovered. The board of supervisors then assumed, on behalf of the city and county, the payment of these judgments, together with the costs of defending the suits, and caused drafts to be drawn upon the treasurer of the city for these amounts. It was held, that these drafts upon the public treasury to indemnify officers for disregard of duty were altogether unwarranted and void, and that it made no difference that the officers had acted conscientiously in refusing to perform their duty, and in the honest belief that the law imposing the duty was unconstitutional. The city had no interest in the suits against the supervisors, and appropriating the public funds to satisfy the judgments and costs was not within either the express or implied powers conferred upon the board. It was in fact appropriating the pub

1 Hodges v. Buffalo, 2 Denio, 110. See also the case of New London v. Brainard, 22 Conn. 552, which follows and approves this case. The cases differ in this only, that in the first suit was brought to enforce the illegal contra 't, while in the second the city was enjoined from paying over money's which it had appropriated for the purposes of the celebration. The cases of Tash v. Adams, 10 Cush. 252, and Hood v. Lynn, 1 Allen, 103, are to the same effect. A town cannot lawfully be assessed to pay a reward offered by a vote of the town for the apprehension and conviction of a person supposed to have committed murder therein. Gale v. South Berwick, 51 Me. 174. Nor under its general authority to raise money for necessary town charges," is a town authorized to raise and expend moneys to send lobbyists to the legislature. Frankfort v. Winterport, 54 Me. 250. Where a municipal corporation enters into a contract ultra vires, no implied contract arises to compensate the contractor for any thing he may have done under it, notwithstanding the corporation may have reaped a benefit therefrom. McSpedon v. New York, 7 Bosw. 601; Zottman v. San Francisco, 20 Cal. 96.

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2 Halstead v. Mayor, &c., of New York, 3 N. Y. 430. See a similar case in People v. Lawrence, 6 Hill, 244. See also Carroll v. St. Louis, 12 Mo. 444; Vincent v. Nantucket, 12 Cush. 103; Parsons v. Goshen, 11 Pick. 396.

lic money for private purposes, and a tax levied therefor must consequently be invalid, on general principles controlling the right of taxation, which will be considered in another place. In a recent case in Iowa it is said: "No instance occurs to us in which it would be competent for [a municipal corporation] to loan its credit or make its accommodation paper for the benefit of citizens to enable them to execute private enterprises"; and where it cannot loan its credit to private undertakings, it is equally [* 213] without * power to appropriate the moneys in its treasury, or by the conduct of its officers to subject itself to implied

obligations.2 The powers conferred upon the municipal governments must also be construed as confined in their exercise to the territorial limits embraced within the municipality; and the fact that these powers are conferred in general terms will not warrant their exercise except within those limits. A general power "to purchase, hold, and convey estate, real and personal, for the public use" of the corporation, will not authorize a purchase outside the corporate limits for that purpose. Without some special provision they cannot, as of course, possess any control or rights over lands lying outside; and the taxes they levy of their own authority, and the moneys they expend, must be for local purposes only.5

1 Clark v. Des Moines, 19 Iowa, 224.

In determining whether the subject-matter is within the legitimate authority of the town, one of the tests is to ascertain whether the expenses were incurred in relation to a subject specially placed by law in other hands. . . . It is a decisive test against the validity of all grants of money by towns for objects liable to that objection, but it does not settle questions arising upon expenditures for objects not specially provided for. In such cases the question will still recur, whether the expenditure was within the jurisdiction of the town. It may be safely assumed that, if the subject of the expenditure be in furtherance of some duty enjoined by statute, or in exoneration of the citizens of the town from a liability to a common burden, a contract made in reference to it will be valid and binding upon the town." Allen v. Taunton, 19 Pick. 487. See Tucker v. Virginia City, 4 Nev. 20.

3 Riley v. Rochester, 9 N. Y. 64.

Per Kent, Chancellor, Denton v. Jackson, 2 Johns. Ch. 336. And see Bullock v. Curry, 2 Met. (Ky.) 171; Weaver v. Cherry, 8 Ohio, N. s. 564; North Hempstead v. Hempstead, Hopk. 294; Concord v. Boscawen, 17 N. H. 465.

In Parsons v. Goshen, 11 Pick. 396, the action of a town appropriating money in aid of the construction of a county road, was held void and no protection to the officers who had expended it, See also Concord v. Boscawen, 17 N. H. 465.

But it is another question how far the legislature of the State may authorize the corporation to extend its action to objects outside the city limits, and to engage in enterprises of a public nature which may benefit the citizens of the municipality in common with the people of the State at large, and also in some special and peculiar manner, but which nevertheless are not under the control of the corporation, and are so far aside from the ordinary purposes of local governments that assistance by the municipality in such enterprises would not be warranted under any general grant of power for municipal government. For a few years past the sessions of the legislative bodies of the several States have been prolific in a * species of legislation which [* 214] has flooded the country with municipal securities issued in aid of works of public improvement, to be owned, controlled, and operated by private parties, or by corporations created for the purpose; the works themselves being designed for the convenience of the people of the State at large, but being nevertheless supposed to be specially beneficial to certain localities because running near or through them, and therefore justifying, it is supposed, the imposition of a special burden by taxation upon such localities to aid in their construction. We have elsewhere 2 collected the cases in which it has been held that the legislature may constitutionally authorize cities, townships, and counties to subscribe to the stock of railroad companies, or to loan their credit to these enterprises, and to tax their citizens to pay these subscriptions, or the bonds or other securities issued, where a peculiar benefit to the municipality was anticipated from the improvement. The rulings in these cases, if sound, must rest upon the same right which allows such municipalities to impose burdens upon their citizens to construct local streets or roads, and they can only be defended on the ground that "the object to be accomplished is so obviously connected with the [municipality] and its interests as to conduce obviously and in a special manner to their prosperity and advancement." But there

are authorities which deny their soundness.

1 In Merrick v. Inhabitants of Amherst, 12 Allen, 500, it was held competent for the legislature to authorize a town to raise money by taxation for a State agricultural college, to be located therein. The case, however, we think, stands on different reasons from those where aid has been voted by municipalities to public improvements.

1 Ante, p. 119.

Talbot v. Dent, 9 B. Monr. 526. See Hasbrouck v. Milwaukee, 13 Wis.

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Assuming that any such subscriptions or securities may be authorized, the first requisite to their validity would seem, then, to be a special legislative authority to make or issue them; an authority which does not reside in the general words in which the powers of local self-government are usually conferred,1 and one also which must be carefully followed by the municipality in all essential particulars, or the subscription or 44. "I confess it appears to me, notwithstanding the weight of authority on this head, that a delegation of the power to municipal corporations to tax their citizens for works of such a large and general utility as railroads cannot be fairly called a taxation for local purposes, nor justified on that ground. The road may benefit the locality, but it is not easy to see how it can properly be called a local object." Sedgwick on Statutory and Const. Law, 464. See also Cass v. Dillon, 2 Ohio, N. s. 624, per Thurman, J.; dissenting opinion of Ranney, J., in same case; Griffith v. Commissioners of Crawford County, 20 Ohio, 609, per Spaulding, J. And see the following cases in Iowa, where it has been held incompetent under the constitution of that State to confer any such power upon the municipality: Stokes v. Scott County, 10 Iowa, 166; State v. Wapello County, 13 Iowa, 388; Myers v. Johnson County, 14 Iowa, 47; Smith v. Henry County, 15 Iowa, 385; Ten Eyck v. Mayor, &c., of Keokuk, ib. 486; Clark v. Des Moines, 19 Iowa, 212; McClure v. Owen, 26 Iowa, 243, and the more recent case of Hansen v. Vernon, 27 Iowa, in which an elaborate and able opinion was delivered by Ch. J. Dillon. See also Whiting v. Sheboygan R. R. Co. in the Supreme Court of Wisconsin, 9 Am. Law Register, N. s. 156; People v. Township Board of Salem in Supreme Court of Michigan, 20 Mich. and 9 Am. Law Register, N. s. 487, and notes thereto by Judges Dillon and Redfield; and Garrard County Court v. Kentucky River Navigation Co., recently decided by the Court of Appeals of Kentucky. The case of the People v. Township Board of Salem denies that the incidental benefits which the municipality expects or receives from the construction of a railroad in the hands of a private corporation, can constitute a ground for taxation any more than can similar benefits in the case of the establishment of a manufactory, a store, or any other private enterprise. This case has elicited a good deal of criticism, both commendatory and the contrary; the ablest of the latter class which has fallen under our observation being that contained in the American Law Review for October, 1870.

1 Bullock v. Curry, 2 Met. (Ky.) 171. A general power to borrow money or incur indebtedness to aid in the construction of "any road or bridge" must be understood to have reference only to the roads or bridges within the municipality. Stokes v. Scott County, 10 Iowa, 173; State v. Wapello County, 13 Iowa, 388; La Fayette v. Cox, 5 Ind. 38. There are decisions in the Supreme Court of the United States which appear to be to the contrary. The city charter of Muscatine conferred in detail the usual powers, and then authorized the city borrow money for any object in its discretion," after a vote of the city in favor of the loan. In Meyer v. Muscatine, 1 Wal. 384, the court seem to have construed this clause as authorizing a loan for any object whatever; whereas we think such phrases are understood usually to be confined in their scope to the specific

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security will be void. And while mere irregularities of action, not going to the essentials of the power, would not prevent parties who had acted in reliance upon the securities enforcing them, yet as the doings of these corporations are matters of public record, and they have no general power to issue negotiable securities, any one who becomes holder of such securitiès, even though they be negotiable in form, will take them with constructive notice of any want of power in the corporation to issue them, and cannot enforce them when their issue was unauthorized.1

objects before enumerated; or at least to those embraced within the ordinary functions of municipal governments. This case was followed in Rogers v. Burlington, 3 Wal. 654, four justices dissenting. A municipal corporation having power to borrow money, it is held, may make its obligations payable wherever it shall agree. Meyer v. Muscatine, 1 Wal. 384. There are cases, however, which hold that such obligations can only be made payable at the corporation treasury, unless there is express legislative authority to make them payable elsewhere. People v. Tazewell County, 22 Ill. 147; Pekin v. Reynolds, 31 Ill. 529. Such corporations cannot give their obligations all the qualities of negotiable paper, without express legislative permission. Dively v. Cedar Falls, 21 Iowa,

565.

There is considerable confusion in the cases on this subject. If the corporation has no authority to issue negotiable paper, or if the officers who assume to do so have no power under the charter for that purpose, there can be no doubt that the defence of want of power may be made by the corporation in any suit brought on the securities. Smith v. Cheshire, 13 Gray, 318; Gould v. Sterling, 23 N. Y. 458; Andover v. Grafton, 7 N. H. 298; Clark v. Des Moines, 19 Iowa, 209. And in any case, if the holder has received the securities with notice of any valid defence, he takes them subject thereto. But where the corporation has power to issue negotiable paper in some cases, and its officers have assumed to do so in cases not within the charter, whether a bona fide holder would be chargeable with notice of the want of authority in the particular case, or, on the other hand, would be entitled to rely on the securities themselves as sufficient evidence that they were properly issued when nothing appeared on their face to apprise him of the contrary, is a question still open to some dispute.

In Stoney v. American Life Insurance Co. 11 Paige, 635, it was held that a negotiable security of a corporation which upon its face appears to have been duly issued by such corporation, and in conformity with the provisions of its charter, is valid in the hands of a bona fide holder thereof without notice, although such security was in fact issued for a purpose and at a place not authorized by the charter of the company, and in violation of the laws of the State where it was actually issued. In Gelpecke v. Dubuque, 1 Wal. 203, the law is stated as follows: "Where a corporation has power, under any circumstances, to issue negotiable securities, the bona fide holder has a right to presume they were issued under the circumstances which give the requisite authority, and they are no more liable to be impeached for any infirmity in the hands of such

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