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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 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 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

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

v. Windham, 13 Me. 74; Fuller v. 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 *And perhaps the legislature may even have power

[* 211] him.2

Commissioners v. Lucas, 93 U. S. Rep. 108; State v. Hammonton, 38 N. J. 430; s. c. 20 Am. Rep. 404. The duty, however, must have been one authorized by law, and the matter one in which the corporation had an interest. Gregory v. Bridgeport, 41 Conn. 76; s. c. 19 Am. Rep. 485. In Bristol v. Johnson, 34 Mich. 123, it appeared that a township treasurer had been robbed of town moneys, but had accounted to the township therefor. An act of the legislature was then obtained for refunding this sum to him by tax. Held, not justified by the constitution of the State, which forbids the allowance of demands against the public by the legislature. See People v. Supervisor of Onondaga, 16 Mich. 254.

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.

1 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.

2 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.

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.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.2 The State can create them for

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; Sherinan v. Carr, 8 R. I. 431.

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." And see Bristol v. Johnson, 34 Mich. 123.

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; People v. Lawrence, 6 Hill, 244; Vincent v. Nantucket, 12 Cush. 105.

2 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.

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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 bylaws, 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

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 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. See post, pp. *526, *594.

1 Hodges v. Buffalo, 2 Denio, 110.

The

See also the case of New London v.
Brainard, 22 Conn. 552, which fol-
lows and approves this case.
cases differ in this only that in the
first suit was brought to enforce
the illegal contract, 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 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

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mitted 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.

1 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.

2 Clark v. Des Moines, 19 Iowa, 224; Carter v. Dubuque, 35 Iowa, 416. See Tyson v. School Directors, 51 Penn. St. 9; Freeland v. Hastings, 10 Allen, 570; Thompson v. Pittston, 59 Me. 545; Kelly v. Marshall, 69 Penn. St. 319; Allen v. Jay, 60 Me. 124; s. c. Am. Law Reg., Aug. 1873, with note by Judge Redfield; s. c. 11 Am. Rep. 185.

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