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of land by a municipal corporation, for the purposes of a cemetery, with a covenant for quiet enjoyment by the grantee, could not preclude the corporation, in the exercise of its police powers, from prohibiting any further use of the land for cemetery purposes, when the advance of population threatened to make such use a public nuisance. So when “a lot is granted as a place of deposit for gunpowder, or other purpose innocent in itself at the time; it is devoted to that purpose till, in the progress of population, it becomes dangerous to the property, the safety, or the lives of hundreds; it cannot be that the mere form of the grant, because the parties choose to make it particular instead of general and absolute, should prevent the use to which it is limited being regarded and treated as a nuisance, when it becomes so in fact. In this way the legislative powers essential to the comfort and
preservation of populous communities miglit be frittered [* 207] away into * perfect insignificance. To allow rights thus
to be parcelled out and secured beyond control would fix a principle by which our cities and villages might be broken up. Nuisances might and undoubtedly would be multiplied to an intolerable extent.”
And on the same ground it is held, that a municipal corporation, having power to establish, make, grade, and improve streets, does not, by once establishing the grade, preclude itself from changing it as the public needs or interest may seem to require, notwithstanding the incidental injury which must result to those individuals who have erected buildings with reference to the first grade.3
i Brick Presbyterian Church v. City of New York, 5 Cow. 540; New York v. Second Avenue R.R. Co., 32 N. Y. 261. Compare Kincaid's Appeal, 66 Penn. St. 411; s. c. 5 Am. Rep. 377.
2 Coats v. Mayor, &c., of New York, 7 Cow. 605. See also Davis v. Mayor, &c., of New York, 14 N. Y. 506; Attorney-General v. Mayor, &c., of New York, 3 Duer, 119; State v. Graves, 19 Md. 51; Gozzle v. Georgetown, 6 Wheat. 597; Louisville City R.R. Co. v. Louisville, 8 Bush, 415.
3 Calendar v. Marsh, 1 Pick. 417; Griggs v. Foote, 4 Allen, 195; Radcliffe's Executors v. Brooklyn, 4 N. Y. 195; Graves 0. Otis, 2 Hill, 466; O'Connor o. Pittsburg, 18 Penn. St. 187; Reading v. Keppleman, 61 Penn. St. 233; Shinner v. Hartford Bridge Co., 29 Conn. 523; Snyder v. Rockport, 6 Ind. 237; La Fayette v. Bush, 19 Ind. 326 ; La Fayette v. Fowler, 34 Ind. 140; Keal v. Keokuk, 4 Green (Iowa), 47; Cole v. Muscatine, 14 Iowa, 296; Russell v. Burlington, 30 Iowa, 262; Roberts v. Chicago, 26 Ill. 249; Murphy v. Chicago, 29 Ill. 279; Rounds v. Mumford, 2 R. I. 154; Rome v. Omberg, 28 Geo. 46; Roll v. Augusta, 34 Geo. 326; Reynolds v. Shreveport, 13 La. An. 426; White o.
So a corporation having power under the charter to establish and regulate streets cannot under this authority, without explicit legislative consent, permit individuals to lay down a 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 regulate * and control the use of that (* 208] 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 Yazoo City, 27 Miss. 357; Humes v. Mayor, &c., 1 Humph. 403; St. Louis v. Gumo, 12 Mo. 414; Taylor v. St. Louis, 14 Mo. 20; Keasy v. Louisville, 4 Dana, 154; Smith v. Washington, 20 How. 135. Compare Louisville v. Rolling Mill Co., 3 Bush, 416. The law would seem to be otherwise declared in Obio. See Rhodes v. Cincinnati, 10 Ohio, 159; McCombs v. Akron, 15 Ohio, 474; 8. c. 18 Ohio, 229; Crawford v. Delaware, 7 Ohio, N. S. 459. Compare Alexander v. Milwaukee, 16 Wis. 256.
· Milhau v. Sharp, 17 Barb. 435; 8. c. 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, c. 15. In Milhau v. Sharp, supra, it was also held that a corporation, with authority “ from time to time to regulate the rates of fare to be charged for the 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, authorizing 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. 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. These rules, however, [* 209] must be confined to those cases where the corporation * is
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 carriage of persons,” could not by resolution divest itself thereof as to the carriages employed on a street-railway.
· Bryson v. Philadelphia, 47 Penn. St. 329. Compare Louisville City R.R. Co. v. Louisville, 8 Bush, 415.
2 Radcliffe's Ex’rs v. Mayor, &c., of Brookyn, 4 N. Y. 195; Duke o. Mayor, &c., of Rome, 20 Geo. 635; 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; Wheeler v. Cincinnati, 19 Ohio, n. s. 19; 8. c. 2 Am. Rep. 368; Hewson v. New Haven, 37 Conn. 475; Murtagh v. St. Louis, 44 Mo. 480; Commissioners v. Duckett, 20 Md. 468; Carr v. Northern Liberties, 35 Penn. St. 324; Grant v. Erie, 69 Penn. St. 420; s. C. 8 Am. Rep. 272; Sparhawk v. Salem, 1 Allen, 30; Randall v. Eastern R. Corp., 106 Mass. 276; s. C. 8 Am. Rep. 326; Hughes v. Baltimore, Taney, 243,
3 Milhau v. Sharp, 15 Barb. 193; New York and Harlaem Railroad Co. v. Mayor, &c., of New York, 1 Hilton, 562; Buell v. Ball, 20 Iowa, 282; Freeport v. Marks, 59 Penn. St. 253. Compare State v. Cincinnati Gas Co., 18 Ohio, N. S. 262.
exclusively. If the corporation is in the position of trustee of property for other persons, it is subject to the same supervision and control with other trustees, and where a specific act is required by law to be done, exact performance may be compelled as in other cases.
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 decided in a case where irregularities had occurred in the assessment of a tax, in consequence of which the tax was void, and the assessors had refunded to the persons taxed the moneys which had been collected and paid into the town, county, and State treasuries, that the town had authority to vote to raise a sum of money in order 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,” it was said, “ was just and wise. The inhabitants, finding that three of their townsmen, 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 reassess 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 reassessment, 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 [* 210] incurred, duties must be performed, by every town ; 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 reassess 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 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 his duty, the town has
the right to adopt his act and to bind itself to indemnify [* 211] him.3 *And perhaps the legislature may even have power
to compel the town, in such a case, to reimburse its officers i Per Parker, Ch. J., in Nelson v. Milford, 7 Pick. 23. See also Baker vi Windham, 13 Me. 74; Fuller v. Groton, 11 Gray, 340.
A municipal corporation, it is said, may offer rewards for the detection of offenders within its limits, but its promise to reward an officer for that which, without such reward, it was his duty to do, is void. Dillon, Mun. Corp. $ 91, and cases cited. And see note, p. 212, supra.
? Fuller v. Inhabitants of Groton, 11 Gray, 340. See also Hadsell v. Inhabitants of Hancock, 3 Gray, 526; Pike v. Middleton, 12 N. H. 278.
3 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 be 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