with.1011 The rule also holds that such legislative and diseretionary powers cannot be delegated to subordinate agents or bodies, the rule applying to the size of the sewer, the materials of which constructed or the manner and time of its construction.1912 But the existence of a discretionary or legislative authority will not justify the action of public authorities in surrendering any of their delegated powers or in making any contracts or passing ordinances relating to their public functions which will embarrass in any way the proper performance of their public duties. Such powers "must be viewed as public trusts; not conferred upon individual members for their own emolument, but for the benefit of the community over which they preside. 1013 From what has been said, it seems quite clear to our minds that the contractor has no just claim of liability against the city because of imperfections in the plans and specifications." some of the courts referred to the police power, by others to the power of eminent domain, while others hold that the authority to take property is exercised under the power of eminent domain, but 1011 See the subject fully dis- that the necessity for its construccussed in § 112. confer it." Sheehan v. Gleeson, 46 Mo. 100; City of St. Joseph v. Wilshire, 47 Mo. App. 125; King-Hill Brick Mfg. Co. v. Hamilton, 51 Mo. App. 120; City of St. Louis V. Clemens, 52 Mo. 133; Neill v. Gates, 152 Mo. 585. 1013 Boyd v. Alabama, 94 U. S. 645; Kirby v. Citizens' R. Co., 48 Md. 168; North Pennsylvania R. Co. v. Stone, 3 Phila. (Pa.) 421. Elliott, Roads & St. § 476, and cases cited. "The authority to construct drains and sewers is by tion may be rested upon the police power. It is enough here, however, to affirm that it is a sovereign power which cannot be abdicated or surrendered. As it is a sovereign power permanently resident in the state, all persons who acquire a right to use public highways by a grant from a local governmental agency take it subject to the paramount right of the public, for the general weal cannot be sacrificed or impaired for private benefit. We know that there are cases which hold that to some extent a local public corporation may so fetter itself by contract as to preclude it from resuming a power it has parted with by contract, but we much aoubt the soundness of some of the decisions. At all events we think it is safe to assume that, when the public necessity demands it, a governmental corporation may temporarily interfere with the business of § 443. Sewer connections. It stands without question that a public sewer although constructed at the cost of benefited or abutting property is subject to the control of the public authorities who can prescribe necessary and suitable regulations for its use1014 and fix terms upon which connections can be made by private property owners. 1015 The efficiency of the sewer depends upon its successful operation as a whole which can only be done when so operated and without reference to a particular locality. those to whom it has granted the justified by the history of the rise Mott v. Pennsylvania R. Co., 30 Pa. 9. "If one portion of the legislative power may be sold, another may be disposed of in the same way. If the power to raise revenue may be sold to-day, the power to punish for crimes may be sold tomorrow, and the power to pass laws for the redress of civil rights may be sold the next day. If the legislative power may be sold, the executive and judicial powers may be put in the market with equal propriety. The result to which the principle must inevitably lead proves that the sale of any portion of governmental power is utterly inconsistent with the nature of our free institutions, and totally at variance with the object and general provisions of the constitution of the state. * # It is a question of constitutional authority, and not a case of confidence at all. Limitations of power established by written constitutions have their origin in a distrust of the infirm Pennsylvania R. Co. v. Riblet, 66 Pa. 164. But in some cases it has been held that mere matters of detail must be delegated to the proper officers. City of St. Joseph v. 1014 Martin v. Hilb, 53 Ark. 300, 14 S. W. 94; City of St. Louis v. Thierry, 100 Mo. 176; Boyden v. Walkley, 113 Mich. 609, 71 N. W. 1099; Hill v. City of St. Louis, 159 Mo. 159, 60 S. W. 116; Van Waggoner v. City of Paterson, 67 N. J. Law, 455, 51 Atl. 922. The owner of a house may be compelled to connect it with the sewer in the street abutting his premises. Wendall v. City of Troy, 4 Keyes (N. Y.) 261; Slaughter v. O'Berry, 126 N. C. 181, 35 S. E. 241, 48 L. R. A. 442. A sewerage connection must be made by one of the responsible officers of the city. Cordeman v. City of Cincinnati, 23 Ohio St. 499; Hermann v. State, 54 Ohio St. 506, 32 L. R. A. 734; Crosby v. Village of Brattleboro, 68 Vt. 484. 1015 Lewis v. Alexander, 24 Can. Sup. Ct. 551; Gage v. City of Chicago, 195 Ill. 490; City of Chicago v. Corcoran, 196 Ill. 146; Smythe v. City of Chicago, 197 Ill. 311; Belding Bros. & Co. v. Northampton Sewer Com'rs, 177 Mass. 39, 58 N. ity of man. That distrust is fully E. 156; Hendrie v. City of Boston, § 444. The construction of drains. Closely connected with the construction of sewers is the establishment of a drainage system for a particular territory for the benefit of the public health, of public utility or the reclamation of low lands. 1016 In some cases the two terms, "drainage" and "sewerage" are used synonymously.1017 179 Mass. 59, 60 N. E. 386; City of Fergus Falls v. Boen, 78 Minn. 186, 80 N. W. 961. 1016 Hagar v. Reclamation Dist. No. 108, 111 U. S. 701; Hagar v. Yolo County Sup'rs, 47 Cal. 222; Kilgour v. Drainage Com'rs, 111 Ill. 342. Trittipo v. Beaver, 155 Ind. 652, 58 N. E. 1034; Ross v. Davis, 97 Ind. 79. To establish the fact that the drain will be a public utility it is not necessary to show that any large portion of the community will participate in its use. Anderson v. Baker, 98 Ind. 587. Baltimore & O. & C. R. Co. v. Ketring, 122 Ind. 5. The legislation of April 8th, 1881, and March 8th, 1883, does not contemplate the drainage of fresh water lakes, but only wet, marshy lands, swamps, ponds and the like. Perkins V. Hayward, 124 Ind. 445. If a drain is either of public utility or a benefit to public highways or to public health, it is sufficient to authorize a special assessment. It is not necessary to accomplish all these results. City of Valparaiso v. Parker, 148 Ind. 379; Oliver v. Monona County, 117 Iowa, 43, 90 N. W. 510. "The drainage law is not invalid for permitting the levying and assessment on land which is not benefited by the improvement, where the land is located in the drainage district; a theory of the law being that the drainage will promote the public health and welfare, and not merely render the lands of particular owners more valuable." Griffith v. Pence, 9 Kan. App. 253, 59 Pac. 677; People v. Saginaw County Sup'rs, 26 Mich. 22. No power of taxation can be exercised to pay for the construction of a drain which results solely in a benefit to the land drained and is of no benefit to either the public health or public welfare. Gillett v. McLaughlin, 69 Mich. 547; Lien V. Norman County Com'rs, 80 Minn. 58, 82 N. W. 1094; Dodge County v. Acom, 61 Neb. 376, 85 N. W. 292; In re Town of Penfield, 3 App. Div. 30, 37 N. Y. Supp. 1056. Drainage proceedings can only be upheld when the construction of the drain will benefit the public health. Brown v. Keener, 74 N. C. 714. Drains may be constructed for the purpose of carrying off surplus water and enabling territory otherwise uninhabitable to be brought under cultivation. Reeves v. Wood County Treasurer, 8 Ohio St. 333; McQuillen v. Hatton, 42 Ohio St. 202; Lake Erie & W. R. Co. v. Hancock County Com'rs, 63 Ohio St. 23; Seely v. Sebastian, 4 Or. 25. The drainage of low lands can be effected by public proceedings when it will result in a benefit to the public. Bryant v. Rouvins, 70 Wis. 258. 1017 City of Charleston v. Johnston, 170 I. 336; Gray v. Town of A drainage system constructed for the purpose of reclaiming wet lands may be also used for irrigation. The same system may serve both purposes.1 1018 $445. Legislative authority. sea. Legislative authority is necessary that a public corporation expend its public moneys either for the construction or the maintenance of a drainage or irrigation system.1019 It may be general Cicero, 177 Ill. 459; City of Val- a construction would be contrary paraiso v. Parker, 148 Ind. 379, 47 to the express language of the N. E. 330. "Formerly the word statute, and would defeat the in'sewer' was defined to be a fresh- tention of the legislature." water trench, artificially made, encompassed with banks on both sides to carry surface water into the It may be true, when the term 'drainage' is used with reference to lands, that ordinary drainage of waters is intended, but it is clear that when that term is used with reference to a city or town it includes sewerage; that is, such drainage is and may be used for the removal of surface and storm water, the overflow of fountains, cisterns, public it can be appropriated to any use hydrants, water troughs, water closets, sinks, all filth and refuse liquids, and the diversion of natural watercourses. It is provided that 'this act shall be liberally construed to promote the drainage of cities, the reclamation of wet lands and the improvement of the public health.' The removal of such water and filth is necessary to the health of a city and such removal constitutes the drainage of a city. It would be a narrow construction of this statute for the drainage of cities and the improvement of public health to limit the same to drains for the removal of surface and storm water alone, unmixed with filth and refuse liquids of any kind. Such Carr v. Dooley, 122 Mass. 255. City authorities may construct a drain or sewer underneath a public street under a general grant of power to lay and maintain drains or sewers and this right can be exercised without incurring a liability for damages to adjoining property owners; this being true irrespective of whether the land was acquired by condemnation or dedication. Where land has been put to a public use and the offer accepted, to which a street might be lawfully put. Stoudinger v. City of Newark, 28 N. J. Eq. (1 Stew.) 446. 1018 Fallbrook Irr. Dist. v. Bradley, 164 U. S. 112; Cribbs v. Benedict, 64 Ark. 555; Merrill v. Southside Irr. Co., 112 Cal. 426; Updike v. Wright, 81 Ill. 49. The construction of a levee along the banks of a river is not a "drainage of land by drains and ditches" within the meaning of the Ill. Statutes. Thorp v. Woolman, 1 Mont. 168; Norfleet v. Cromwell, 70 N. C. 634. 1019 In re Central Irr. Dist., 117 Cal. 382, 49 Pac. 354. Construing and holding constitutional Cal. St. 1887, p. 29, the "Wright Act" so called. Swamp Land Dist. No. 150 v. Silver, 98 Cal. 51; Merrill v. or special in its terms 1020 and like all other grants of power to public corporations is construed strictly.1021 Such legislation is Southside Irr. Co., 112 Cal. 426; Blake v. People, 109 Ill. 504; Kilgour V. Montmorency Drainage Com'rs, 111 Ill. 342. Rich v. City of Chicago, 152 Ill. 18. Construing act of 1889 authorizing the creation of sanitary districts. McCaleb v. Coon Run Drainage & Levee Dist., 190 Ill. 549; Anderson v. Kerns Draining Co., 14 Ind. 199; Duke v. O'Bryan, 100 Ky. 710, 39 S. W. 444, 824; Inhabitants of Melrose v. Hiland, 163 Mass. 303, 39 N. E. 1031. The power to construct a drain carries with it the implied power to thereafter maintain and repair it. Britton V. Blake, 35 N. J. Law, 208; Reeves v. Wood County Treasurer, 8 Ohio St. 333. See, also, 14 Am. St. Rep. 308; 90 Am. Dec. 634. 1020 Hagar v. Yolo County Sup'rs, 47 Cul. 222; Kirkland v. Public Works of Indianapolis, 142 Ind. 123; In re Drainage along Pequest River, 39 N. J. Law, 433. 1021 Minnesota & M. Land & Imp. Co. v. City of Billings, 111 Fed. 972. A charter provision in this case giving a city authority to construct drains and sewers it was held was sufficient to enable that city to extend to a proper outlet outside the city limits a general system of drainage which it had constructed for the promotion of the general health of the city. In re Central Irr. Dist., 117 Cal. 382, 49 Pac. 354; French v. White, 24 Conn. 170. A landowner has no authority under Connecticut drainage acts to construct a system of drains in such a manner as to dis As this construct a public ditch so as to drain such lakes. It may be conceded, for the purposes of the case, that the legislature has the power to do so where the public good requires it and that it may delegate that power to a board or body like the board of county commissioners. But the question is whether the legislature has delegated this power by the act referred to. It is conceded that the act does not delegate any such power in express, specific terms, but the claim of the defendant is that this is necessarily or clearly implied. * right is a prerogative of sovereignty, there must be a clear and unambiguous grant from the legislature, to authorize its exercise by others. The powers granted by such statutes are not to be enlarged by doubtful intendment. For these and other reasons which might be suggested we are of opinion that the act in question does not authorize the board of county commissioners to drain public meandered lakes and that in attempting to do so it exceeded its powers and was subject to injunction." McLaughlin v. Sandusky, 17 Neb. 110; In re Lent, 47 App. Div. 349, 62 N. Y. Supp. 227. * * |