general scope of the authority conferred by the charter upon the municipality and the officers concerned, although actually in excess of those powers, the city is liable; but if the undertaking be wholly beyond the powers of the municipality and its officers, no liability rests upon the corporation.

§ 65. Same: Illustrations of non-liability. Perhaps the distinction intended to be drawn will appear with sufficient clearness from the following cases. In Anthony v. Adams (60) the selectmen of a town caused a dam to be erected, in such a manner that plaintiff's land was flooded. The town had under no circumstances any authority to erect a structure of this kind, and the plaintiff was therefore denied a recovery. Similarly, in Albany v. Cunliff (61) the authorities of the city of Albany assumed to build a private bridge across a basin to a pier in the Hudson river. The only authority to do this was contained in an unconstitutional statute, which was, of course, no authority whatever. Owing to the improper and negligent construction of the bride by the city's officers, the bridge fell and plaintiff was injured. As the undertaking was wholly beyond the city's powers, judgment was given for the defendant city. In another case the city council called a meeting for political and philanthropic purposes, and through the negligent management of the meeting by the city officers, an injury resulted to a person present. The city was held not liable, the calling of such a meeting being wholly beyond the city council's power (62). The

(60) 1 Metc. (Mass.) 284.

(61) 2 N. Y. 165.

same result was reached where the city charter forbade the laying out of a street so that it would run over any site of any building the expense of removing which would be more than $100. The city officers who had charge of laying out streets violated this provision, and the land owner concerned sued the city, but failed to recover. It is possible to criticize this case on the ground that the laying out of the street was within the general powers of the city officers, though in excess of them (63).

§ 66. Same: Illustrations of liability. This brings us to a discussion of cases in which the city is held liable. In Norton v. New Bedford (64) the city was constructing a sewer, acting through the officers who had charge of sewer construction. Being sued for injuries caused by negligence of those in charge, it defended on the ground that the construction of the sewer was illegal and without authority of law, because of certain irregularities in the proceedings of the city board which had authorized the building of the sewer. This was held to be no defence, the undertaking being within the general scope of the powers of the city, though in excess of them in the particular case. In a similar case in Wisconsin a town was held liable for defects in a bridge erected by the officers of the town in pursuance of a vote of the electors, although the erection of the particular bridge under the circumstances was illegal (65). In another case the village of Saratoga Springs, N. Y., constructed a sewer in part through private lands. It being doubtful whether the

village had any power to construct sewers elsewhere than in the street, the village sought to escape liability for sewage cast upon plaintiff's land because of faulty construction of the sewer, but was held liable (66). Here, again, the village clearly had general power to build sewers, but construction of the particular sewer was actually illegal, and beyond their powers. This distinction is a nice one, difficult of application, and many conflicting decisions can be found in the books.

(66) Stoddard v. Saratoga Springs, 127 N. Y. 261.

CHAPTER IV.

THE POWER OF PUBLIC CORPORATIONS TO MAKE

CONTRACTS.

§ 67. Fundamental rule of construction of municipal powers. The following statement by Dillon in his classic treatise on the law of Municipal Corporations is one which has been quoted with approval by courts of last resort in nearly all jurisdictions: "It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation -not simply convenient, but indispensable. Any fair, reasonable doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied. Of every municipal corporation the charter or statute by which it is created is its organic act. Neither the corporation nor its officers can do any act, or make any contract, or incur any liability, not authorized thereby or by some legislative act applicable thereto. All acts beyond the scope of the powers granted are void" (1). It is remarkable with what unanimity the courts have adopted this statement and acted upon

(1) Dillon (4th ed.), sec. 89.

it in hundreds of cases. In discussing, therefore, the power of a municipal corporation to make contracts, we must from the outset keep in mind that it is an authority of enumerated powers and that the tendency of the courts is to follow this rule of rather narrow construction of corporate powers. In only a few cases is there exhibited a tendency to break away from this rule and give public corporations a liberal interpretation of their charter powers.

§ 68. Implied power to contract on credit: For specific purposes. According to the statement quoted in the preceding paragraph, a municipal corporation has powers necessarily or fairly implied in or incident to powers expressly granted. Let us examine some illustrations of the application of this principle. In Ketchum v. Buffalo (2) taxpayers of the city sought an injunction to prevent the levy of a tax to raise money to pay interest on bonds running twenty-five years, issued for the purchase of lands for market grounds. Under the city charter the city had power to purchase land for such purposes, the only question being whether a power to purchase on credit and issue bonds for the same could be fairly implied. The decision was in favor of such a power on the part of the city, the court saying: "No less than the authorities to which I have referred forbid that it should be held that a corporation may not incur a debt in the exercise of its appropriate powers, or may not purchase upon credit property which is required for purposes authorized by its charter.