ply, or authorize the inhabitants to be supplied with, water, the municipal council may use, or as an incidental power may permit the contractor to use, the streets for this purpose, and the adjoining feeholder is not entitled to compensation as for a new servitude, for it is not such, but only a proper or necessary use incident to a street in a populous place. And see State ex rel. v. Cincinnati Gas Co., 18 Ohio St. 295; Indianapolis v. Gas Light Co., 66 Ind. 396; Des Moines Gas. Co. v. Des Moines, 44 Ia. 508.

Under this power to provide the city with water, then, the city might have erected its own water-works and supplied itself with water, or it might have contracted with some one else to construct the water-works and furnish the supply of water to the city. The city council saw fit to adopt the latter course, and accordingly, by the ordinance in question, made a contract with Prince that he should construct the water-works, and at his own expense, and furnish the city with water. The use of the streets for the purpose of laying the water pipes may be regarded as indispensable for the construction of the water-works, so that the power to contract for their construction included, as a necessary incident, the power to contract for the use of the streets for the purpose.

We thus find that there was full power in the city council to contract with Prince for the construction of these water-works, and for his use of the streets for that purpose. This privilege of the use of the streets by Prince is not a mere license revocable at the pleasure of the city council, but it is a grant under an express contract, for an adequate consideration received, and binding as such.

The position taken by appellant in opposition to the binding force of the ordinance, as it respects the use of streets, is, that the city, in the passage of the ordinance, was acting in its public, not its private, character, and that the act was a legislative or governmental act, in the exercise of the city's legislative power of control over the use of its streets, which power of control was incapable of being abridged, but must be left free, to be exercised unrestrictedly from time to time, as the city council may see fit; and the case is put as if it were a diversion of the use of the streets from the purpose for which they were dedicated, and the permitting an obstruction in them by an individual for his pri

vate use. As we have seen, this was no diversion of the use of the streets from their proper purpose, but a use of them consistent with such purpose. It was not for a mere private object, but for the public benefit of the city, in supplying it with water. We do not perceive how the doctrine as to the legislative governmental powers of a municipality can be brought in and have any bearing upon the facts of this case. See DeVoss v. City of Richmond, 18 Gratt. 338; 1 Potter on Corp'ns, §§ 376, 395.

We have found that the city council had power to make this contract for the use of the streets; that it had power to contract for the putting in of the water-works; that they could not be constructed without the use of the streets for the purpose,-and therefore, the power to contract for the water-works included, as a necessary incident, the power to contract for the use of the streets for that purpose. The power to make a contract, but not to make a binding one, is unmeaning. Where there is power to make a contract, there is power to make one that shall bind. We see no more to be involved here than the simple law of contract, -whether a municipal corporation may at its will repudiate the obligation of a fair contract which it has made, and which it was authorized to make. The attempt is to take back a grant which the city has made under a contract. The State itself may not revoke a grant it has made. The city must be bound by the contract and grant it has made, and had authority to make, the same as would an individual. 1 Potter on Corp'ns, § 376; City of Burlington v. Burlington Street Ry. Co., 49 Ia. 144.

Judgment affirmed.

Ultra Vires and Irregular Contracts.

LONDON, ETC., LAND COMPANY v. CITY OF JELLICO.

103 Tenn. 320. 1899.

CALDWELL, J. The London and New York Land Company brought this bill against the city of Jellico to recover a certain sum of money for grading one of defendant's streets, under a contract made for that purpose. The chancellor dismissed the bill, but the court of chancery appeals reversed his action, and pronounced a decree in favor of the complainant for $476.86. The principal defense interposed by the city is rested upon the

fact that the contract under which the grading was done was made at a special meeting of the board of mayor and aldermen, called without notice to some of the aldermen, and held in their absence. The result of the authorities upon the subject is that, as a general rule, every member of a municipal council is entitled to reasonable notice of special meetings, and that no important action can lawfully be taken at such meeting unless such notice has first been given, or unless the members not notified actually attend and participate in the business of the meeting. [Citations omitted.] The present contract was confessedly subject to this general rule, and, being so, it was undoubtedly invalid, and, nothing else appearing, the complainant would inevitably be repelled from court.

There is another aspect of the case, however, that demands the consideration of the court. The contract was fair and reasonable in its terms, and was within the scope of the powers conferred upon the council for the improvement of streets. It soon became known to the members of the council, who permitted it to go unrescinded and unchallenged, and allowed the complainant to continue the work through several months to completion, in the belief that all was satisfactory, and with the unquestionable result of large and permanent advantage to the municipality. Having thus received benefits for which the council might well have contracted in a proper meeting, the city will not now be heard to deny liability therefor. In such a case, liability arises by implication of law, and payment must be made according to the benefits received. The law, which always intends justice, implies a promise. [Citations omitted.] Since the price named in the invalid contract is shown to be entirely fair and reasonable, not only in view of the labor done, but also in reference to the benefits conferred, it will be taken as the true measure of recovery.

The decree of the court of chancery appeals is affirmed.

CHAPTER V.

POLICE POWERS AND PUBLIC HIGHWAYS.

Power to Obstruct or Alienate a Public Way.

PETERS ET AL. v. CITY OF ST. LOUIS ET AL.

226 Mo. 62. 1909.

APPEAL from St. Louis City Circuit Court. Bill in equity by the commissioners of the South Market, in St. Louis, to enjoin the city and the city marshal from removing the market-house from Fifth Street, a public street. The market-house is a brick building, which was constructed under city ordinances in 1839. The ordinances provided that the expenses of construction and maintenance should be defrayed by contributions from individuals, and that proportionate shares should be issued to the contributors. The rents of the market were to be appropriated to the redemption of these shares, and the city reserved the right at any time to refund a sufficient amount to redeem them. Some of the shares are still outstanding. The ordinances declared the building to be a public market, and placed the management and control of it in the hands of three commissioners, to be elected by the shareholders. The commissioners were declared to be city officers, and the market was to be conducted in conformity with the ordinances of the city. The market-house is 36 feet in width and 375 feet in length, containing about forty stalls or places of business. Upon either side of the house is about thirty In other words, the public highway at this point is nearly one hundred feet in width, and the market place occupies 36 feet, practically in the middle thereof.

feet of the street.

GRAVES, J.

But to the proposition as to the right of the city to pass the two ordinances in question. If the city had such power there is an end to this controversy. It appears that other market places were established about this time and they too were placed in the public streets. This, however, does

not change the legal status of all such ordinances and of all such acts. Such could only be considered as tending to show the city's construction of its own powers, and not further. To our mind the ordinances in question, as well as all similar ordinances, are void for the reason that they exceed the lawful powers of a municipal corporation, such as we have involved here. Where land has been dedicated as a street and thereby dedicated to public use, the same cannot be diverted from that use in the manner indicated in these ordinances. Licenses may be granted to street railways, which, for a public purpose, will subject the use of the street to additional burdens, but neither the street itself nor any portion thereof is absolutely withdrawn from use by the general public. Under such grants it has been subjected to an additional use. Not so with reference to the two ordinances in question. These ordinances absolutely withdraw from public use a material portion of a public highway. They do not merely encumber such highway with an additional public use, but absolutely withdraw the same from public use. This we say advisedly, for it is argued that the use to which the street was subjected under these ordinances is a public use. In a sense that is true. The market accommodated that portion of the population adjacent thereto, but not the general public. Public streets are for the general public and not for local interests. Licenses to railway corporations are tolerated on the theory that their limited use of the public thoroughfare is for the general public, but even such licenses cannot be tolerated when they operate in such a manner as to preclude the use of the streets in the usual and ordinary manner by the general public. State ex rel. v. Railroad, 206 Mo. 251, and cases cited therein.

Power to establish and control market places does not mean power to usurp the rights of the public in and to public streets. The case law seems to be firmly set this way. Dillon, with a citation of the case law (1 Dill., Mun. Corp. [4th ed.], §383), says: "But power to a municipal corporation to establish markets and build market-houses will not give the authority to build them on a public street. Such erections are nuisances though made by the corporation, because the street, and the entire street, is for the use of the whole people. They are nuisances when built upon the streets, although sufficient space be left for the passage of vehicles and persons. Such erections may, it seems, be