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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 theniselves 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 incurred, duties must be performed, by every town; * the [* 210] 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 Per Parker, Ch. J., in Nelson v. v. Windham, 13 Me. 74; Fuller o. Milford, 7 Pick. 23. See also Baker Groton, 11 Gray, 340; Board of
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.
* And perhaps the legislature may even have power
Commissioners v. Lucas, 93 U. S. by the committee. By the court : Rep. 108; State v. Hammonton, 38 It is the duty of a town to repair all N. J. 430; 8. c. 20 Am. Rep. 404. highways within its bounds, at the The duty, however, must have been expense of the inhabitants, so that one authorized by law, and the matter the same may be safe and convenient one in which the corporation had an for travellers ; and we think it has the interest. Gregory v. Bridgeport, 41 power, as incident to this duty, to Conn. 76 ; 8. c. 19 Am. Rep. 485. indemnify the surveyor, or other In Bristol v. Johnson, 34 Mich. 123, agent, against any charge or liability it appeared that a township treas- he may incur in the bona fide disurer had been robbed of town moneys, charge of this duty, although it may but had accounted to the township turn out on investigation that he mistherefor. An act of the legislature took his legal rights and authority. was then obtained for refunding this The act by which the surveyor insum to him by tax. Held, not justi- curred a liability was the digging a fied by the constitution of the State, ditch, as a drain for the security of which forbids the allowance of de- the highway ; and if it was done for mands against the public by the legis- the purpose of raising a legal question lature. See People v. Supervisor of as to the bounds of the highway, as Onondaga, 16 Mich. 254.
the defendants offered to prove at the A municipal corporation, it is said, trial, the town had, nevertheless, a may offer rewards for the detection of right to adopt the act, for they were offenders within its limits; but its interested in the subject, being bouna promise to reward an officer for that to keep the highway in repair. They which, without such reward, it was had, therefore, a right to determine his duty to do, is void. Dillon, Mun. whether they would defend the surCorp. $ 91, and cases cited. And see veyor or not; and having determined note, p. 212, supra.
the question, and appointed the plain1 Fuller v. Inhabitants of Groton, tiff's a committee to carry on the de11 Gray, 340. See also Hadsell v. fence, they cannot now be allowed to Inhabitants of Hancock, 3 Gray, 526; deny their liability, after the comPike v. Middleton, 12 N. H. 278. mittee have paid the charges incurred
2 A surveyor of highways cut a under the authority of the town. The drain for the purpose of raising a legal town had a right to act on the subquestion as to the bounds of the high- ject-matter which was within their way, and the town appointed a com- jurisdiction; and their votes are bindmittee to defend an action brought ing and create a legal obligation, against the surveyor therefor, and although they were under no previous voted to defray the expenses incurred obligation to indemnify the surveyor.
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.
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
That towns have an authority to de- would be aggravated by the opportufend and indemnify their agents who nity to obtain intoxicating liquors, may incur a liability by an inadver- the common council ordered the seiztent error, or in the performance of ure and destruction of all such liquors their duties imposed on them by law, within the city, and pledged the faith is fully maintained by the case of of the city to the payment of the Nelson 0. Milford, 7 Pick. 18." value. The Court of Appeals of Bancroft v. Lynnfield, 18 Pick. 568. Virginia afterwards decided that the And see Briggs v. Whipple, 6 Vt. 95; city might be held liable on the pledge Sherinan v. Carr, 8 R. I. 431.
in an action of assumpsit. Rires, J., 1 Guilford v. Supervisors of Che- says: . By its charter the council is nango, 13 N. Y. 143. See this case specially empowered to pass all bycommented upon by Lyon, J., in laws, rules, and regulations which State v. Tappen, 29 Wis. 674, 680. they shall deem necessary for the On the page last mentioned it is said, peace, comfort, convenience, good “We have seen no case except in the order, good morals, health, or safety courts of New York, which holds that of said city, or of the people or propsuch moral obligation gives the legis- erty therein.' It is hard to conceive lature power to compel payment.” of larger terms for the grant of sover. And see Bristol v. Johnson, 34 Mich. eign legislative powers to the specified 123. Where officers make themselves end than those thus employed in the liable to penalties for refusal to per- charter; and they must be taken by form duty, the corporation has no necessary and unavoidable intendment authority to indemnify them. Hal- to comprise the powers of eminent stead o. Mayor, &c. of New York, domain within these limits of pre3 N. Y. 430; Merrill v. Plainfield, scribed jurisdiction. There were two 45 N. H. 126. See Frost v. Belmont, modes open to the council: first, to 6 Allen, 152; People v. Lawrence, 6 direct the destruction of these stores, Hill, 244; Vincent v. Nantucket, 12 leaving the question of the city's Cush. 105.
liability therefor to be afterwards liti2 A somewhat peculiar question gated and determined; or, secondly, was involved in the case of Jones v. assunting their liability, to contract Richmond, 18 Grat. 517. In antici- for the values destroyed under their pation of the evacuation of the city of orders. Had they pursued the first Richmond by the Confederate author- mode, the corporation would have ities, and under the apprehension that been liable in an action of trespass scenes of disorder might follow which for the damages; but they thought
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 brought 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 prevailed, 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
proper to adopt the latter mode, make See also the case of New London v. it a matter of contract, and approach Brainard, 22 Conn. 552, which foltheir citizens, not as trespassers, but lows and approves this case. The with the amicable proffer of a formal cases differ in this only : that in the receipt and the plighted faith of the first suit was brought to enforce city for the payment. In this they the illegal contract, while in the seem to me to be well justified.” second the city was enjoined from Judge Dillon doubts the soundness of paying over moneys which it had this decision. Dillon, Mun. Corp. appropriated for the purposes of the $ 371, note. The case seems to us celebration. The cases of Tash v. analogous in principle to that of the Adams, 10 Cush. 252, and Hood v. destruction of buildings to stop the Lynn, 1 Allen, 103, are to the same progress of a fire. In each case pri- effect. A town, it has been held, vate property is destroyed to antici- cannot lawfully be assessed to pay a pate and prevent an impending public reward offered by a vote of the town calamity. See post, pp. *526, *594. for the apprehension and conviction
1 Hodges v. Buffalo, 2 Denio, 110. of a person supposed to have com
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 ;”2 and where it cannot loan its credit to private undertakings, it mitted murder therein. Gale o. South 1 Halstead v. Mayor, &c. of New Berwick, 51 Me. 174. Nor, under its York, 3 N. Y. 430. See a similar general authority to raise money for case in People v. Lawrence, 6 Hill,
necessary town charges,” is a town 244. See also Carroll v. St. Louis, authorized to raise and expend moneys 12 Mo. 444; Vincent o. Nantucket, to send lobbyists to the legislature. 12 Cush. 103; Parsons v. Goshen, 11 Frankfort v. Winterport, 54 Me. 250. Pick. 396; Merrill v. Plainfield, 45 Or, under like authority, to furnish N. H. 126. a uniform for a volunteer military Clark 0. Des Moines, 19 Iowa, company. Claflin v. Hopkinton, 4 224; Carter v. Dubuque, 35 Iowa, Gray, 502. Where a municipal cor 416. See Tyson v. School Directors, poration enters into a contract ultra 51 Penn. St. 9; Freeland v. Hastings, vires, no implied contract arises to 10 Allen, 570; Thompson v. Pittston, compensate the contractor for any 59 Me. 545; Kelly v. Marshall, 69 thing he inay have done under it, not- Penn. St. 319; Allen v. Jay, 60 Me. withstanding the corporation may 124; s. c. Am. Law Reg., Aug. 1873, have reaped å benefit therefrom. with note by Judge Redfield; s. c. McSpedon v. New York, 7 Bosw. 11 Am. Rep. 185. 601; Zottman v. San Francisco, 20 Cal. 96.