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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.1

Construction of Municipal Powers. The powers conferred upon municipalities must be construed with reference to the object of their creation, namely, as agencies of the State in local government. The State can create them for

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. And see Briggs v. Whipple, 6 Vt. 95.

1 Guilford v. Supervisors of Chenango, 13 N. Y. 143. See this case commented upon by Lyon, J., in State v. Tappen, 29 Wis. 674, 680. On the page last mentioned it is said, “We have seen no case except in the courts of New York, which holds that such moral obligation gives the legislature power to compel payment.” Where officers make themselves liable to penalties for refusal to perform duty, the corporation has no authority to demnify 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; People v. Lawrence, 6 Hill, 244; Vincent 0. Nantucket, 12 Cush. 105.

* 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 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, and therefore void.

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 brouglit to recover the balance due. The city had authority, under its charter, to raise and expend moneys for various specified purposes, 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 [* 212] considered, * where the common law has prerailed, that

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

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.” Judge Dillon doubts the soundness of this decision. Dillon, Mun. Corp. § 371, note. The case seems to us analogous in principle to that of the destruction of buildings to stop the progress of a fire. In each case private property is destroyed to anticipate and prevent an impending public calamity.

| 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 contract,

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 public 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

while in the second the city was enjoined from paying over moneys 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, it has been held, 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. Or, under like authority, to furnish a uniform for a volunteer military company. Claflin v. Hopkinton, 4 Gray, 502. 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.

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; Merrill v. Plainfield, 45 N. H. 126. Clark v. Des Moines, 19 Iowa, 224. See Tyson v. School Directors, 51

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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.

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 ; 3 and the taxes they levy of their own authority, and the moneys they expend, must be for local purposes only.4

But the question is a very different one how far the legislature of the State may authorize the corporation to extend its action to

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Penn. St. 9; Freeland v. Hastings, 10 Allen, 570; Thompson o. Pittston, 59 Me. 545; Kelly v. Marshall, 69 Penn. St. 319; Allen v. Jay, Supreme Court of Maine, Law Reg., Aug. 1873, with note by Judge Redfield.

1 " 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. It is no objection to the validity of an act which authorizes an expenditure for a town-hall, that rooms to be rented for stores are contained in it. White v. Stamford, 37 Conn. 578.

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

3 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.

objects outside the city limits, and to engage in enterprises of a public nature which may be expected to 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 * legislation which has [* 214] resulted in flooding 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 referred to 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 them their credit, and to tax their citizens to pay these subscriptions, or the bonds or other securities issued as loans, 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.” 8 But there are authorities which dispute their soundness,

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. See it explained in Jenkins v. Andover, 103 Mass. 94. And see Marks v. Trustees of Pardue University, 37 Ind. 155.

Ante, p. 119. 3 Talbot v. Dent, 9 B. Monr. 526. See Hasbrouck v. Milwaukee, 13 Wis. 44.


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